2021 NBPC 11, 2021 NBPC 11

2021NBPC11 Provincial Court Province of New Brunswick Date: March 10, 2021 Docket: 15743613 Her Majesty, The Queen - and - Michael Genova Sentencing Decision of the Honourable Judge Cameron Gunn of the Provincial Court of New Brunswick Appearances: Melanie MacAulay, for Her Majesty the Queen Maude Woods, for Michael Genova Note: This document is subject to editorial revision before its reproduction in final form Introduction 1 . In late October of 2020 Sylvio Robichaud had installed security cameras in his home that he could monitor from his cell phone. The day after installing them, Mr.

Robichaud checked the cameras while he was at work. He was surprised to discover that they had captured two images of his acquaintanc e, Michael Genova, in his house. Mr. Robichaud called the police, and after some delay returned home in the company of the police to find that Mr. Genova was not there, but nor were the security cameras, a computer tablet and a kitten. 2 . Mr.

Genova was later arrested, held in custody and tried for breaking and entering the residence of Sylvio Robichaud and committing the indictable offense of theft (he was charged with two other offences related to the substantive charge; one was withdrawn by the Crown and on the other Mr. Genova was acquitted). He admitted being in the house but asserted he was there with permission and had stolen nothing. I convicted him after trial and the facts relating to that conviction can be found in my written trial decision. 3 . What remains is to determine the fit and appropriate sentence for Mr.

Genova Position of the Parties 4 . The parties do not agree on the appropriate sentence. The Crown alleges that the events at Mr. Robichaud’s residence merit a

sentence of between 18 months and 2 years and that they recommend a 12 month sentence of imprisonment going forward after credit for pre-trial custody. 5 . Mr. Genova, through counsel, suggests that he has spent enough time in custody and that his sentence should reflect one of what would amount to time served. 6 . Given the disparity in the recommendations, I reserved my decision and invited the parties to provide support for their positions. The Law 7 .

Sentencing is governed by the provisions of the Criminal Code [1] and a generous amount of discretion to achieve an individualized sentence [2] that balances “all the relevant factors in order to meet the objectives being pursued in sentencing.” [3] The starting point to the imposition of a fit sentence is an understanding an adoption of the purposes and principle of sentence as described in the Criminal Code of Canada . ” [4] 8 . As the Supreme Court of Canada has noted the “credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders.” [5] 9 .

Section 718 of the Criminal Code describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 10 . Each of these objectives is important, but one may be more important given the particular offence or offender [6] 11 . Whether the objectives of denunciation or deterrence are paramount, or rehabilitation is of fundamental importance, is determined by a consideration of all the factors, the circumstances of the offender and the offence. There are circumstances of both offender and offence, however, that require the offender to be imprisoned.

For instance, where an offender commits a serious offence and previous efforts to rehabilitate have failed, jail may be necessary. [7] 12 . The Criminal Code also holds that the fundamental principle of sentence is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is called the proportionality principle. 13 . I am also aware that

section 718.2 (

b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." (the parity principle) 14 .

Section 718.2 (

a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." Relevant factors, such as the presence or absence of a criminal record, may push a sentence up or down the scale of appropriate sentences for similar offences. 15 .

Section 718.2 also dictates that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Circumstances of the Offender

16 . Mr. Genova is 41 years old and was raised primarily by his mother. His mother was productive, politically active but also suffered with addictions. From two long term relationships Mr. Genova is the parent of seven children, three of whom are in foster care. 17 . Mr. Genova struggles with addictions to prescription drugs and has received, in the past, treatment for the same, including residential treatment, methadone and approximately thirty admissions to detox. He has now been prescribed suboxone. 18 .

The offender has some university education, a spotty employment record and has supported his addictions through selling drugs. His previous community supervisions have not been successful, and he himself expresses that he is not a good candidate for any probation supervision. 19 . Mr. Genova is an Aboriginal and a member of the Metepenangiag First Nation. As such, two duties arise as articulated in Gladue [8] and Ipeelee [9] . The Supreme Court of Canada has been clear that a sentencing judge has an obligation to consider the following factors: a. The unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. [10] 20 .

As the sentencing judge I have an affirmative obligation to take judicial notice of “such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.” [11] I do so. 21 . That is not to say that s. 718.2 (

e) should be taken as “requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal”. [12] Rather it is a direction to address over-representation of Aboriginal offenders by crafting sentences that are fit and proper, respecting the individual and community circumstances that bring the offender before the Court. 22 . In this case, the Gladue component of the pre-sentence report provides important information about the accused. It is apparent that Mr.

Genova has been affected by: i. substance abuse in the community; ii. alcohol abuse in the community; iii. poverty; iv. overt racism; v. family breakdown; vi. abuse; vii. trauma; and viii. personal addiction issues. 23 . With respect to what sentencing procedures or sanctions which may be appropriate in the circumstances for the offender because of his Aboriginal heritage or connection, the pre-sentence report suggests treatment options and support in Metepenangiag First Nation. The appropriateness of those is something I have and will consider in crafting his sentence in this case. 24 .

Of course, in considering Mr. Genova’s personal circumstances, it is a relevant consideration that he has a substantial criminal record. He has 53 previous convictions. His counsel made the point that many of these are for administration of justice offences which have been particularly noted as a basis for over-incarceration of Aboriginal offenders. Given this, it is appropriate to break down the prior record of Mr. Genova by the nature of the offences. 25 . Mr.

Genova has not prior convictions for the offence before the court, but has the following prior convictions: a. 31 prior convictions for administration of justice offences including breaches of undertakings, breaches of probation orders, failures to appear in court, public mischief or obstruction of justice; b. 9 offences for crimes of violence or threats of violence including a conviction for forcible confinement; c. 2 convictions for possession of a controlled drug for the purpose of trafficking for which he received federal penitentiary sentences; d. 6 convictions for property related offences; e. 3 criminal driving offences; and f. 2 firearm prohibition related offences.

Aggravating Circumstances 26. I consider it to be an aggravating circumstance that the offender has a long and varied criminal record as detailed above, though Inote he has no convictions for the offence for which he is being sentenced and that many of his convictions are for administration ofjustice offences. Mitigating Circumstances 27. In addition to considering the Gladue principles I consider it mitigating that Mr. Genova has a stable relationship and the support ofhis girlfriend and that he recognizes the impact of his addictions.

I consider it mitigating that he has taken repeated steps to address thoseaddictions. Circumstances of the Offence 28. The offence for which the accused was charged is serious. The break and enter, contrary to section 348(1)(

b) of the Criminal Codecarries a maximum penalty of life imprisonment. 29. This is not, however, a case where the aggravating circumstances of s. 348.1 apply. Based upon the facts as I have found them, Mr.Genova was opportunistic in his timing and knew or suspected that home owner was not present when he entered. The significant andwell-known body of sentencing jurisprudence from our Court of Appeal on home invasion break and enters is thus of limited value here 30. This break and enter also did not result in a significant financial loss to the victim.

The items taken were not of substantial value.This is not to suggest that it is, as counsel termed it, a minor break and enter. 31. Breaking and entering involves a violation of the sanctity of the home and the privacy of the victim. It is, by its nature, a generallyintrusive crime, though we have no information, beyond his trial testimony, of the impact on the victim. In an exhibit entered by the Mr.Genova during the trial which showed a text exchange between the victim and Mr.

Genova’s girlfriend, the victim states (in part): Not worried about what wass (sic) stolen, only a game pad and a kitten and 2 cameras,, but my daughter could have been home and thatis where the line is cross[13] 32. Counsel for the offender provided a series of cases to assist in establishing a range of sentence for non-home invasion break andenters which I reproduce in table form here. I thank her for her efforts which have made my own research to find appropriate sentencingprecedents easier.

Case SentenceVeno v R, 2012 NBCA 15 9 monthsRobichaud v R, 2011 NBCA 112 7 years and 4 months and 4 months plus 44months remand creditFY v R, 2011 NBCA 86 6 monthsSacobie v R, 2011 NBCA 23 17 monthsLavoie v R, 2010 NBCA 52 4 monthsR v Nowlan, 2009 NBQB 117 3 years going forward considering 13 months’remand creditR v Latour, 2009 NBCA 14 7 months plus 5 months’ remand creditVHM v R, 2004 NBCA 72 30 monthsBeals v R, 2004 NBCA 63 4 years consecutiveR v Trites, 2004 NBQB 232 18 monthsParlee v R, 2004 NBCA 11 2 years less a day 33. To the list of cases provided by counsel I would add the following.

I would note that these are not all break and enters intoresidences. I have also excluded cases where there was an indication that violence was used or threatened in the offence and those wherethe break and enter was part of a sentence for multiple offences and was not the predominant or most serious offence. Case SentenceR. v. Hayes, 2001 NBQB 227 4 years plus 1 year of remand creditR. v. Cameron (1987) (NB CA), 81 N.B.R. (2d) 116 (NBQB) 12 months global sentence for several breakand enters

R. v. N. (M.J.) (1999) (NB KB), 221 N.B.R. (2d) 49(NBQB) 5 years R. v. Partridge (1995) (NB CA), 167 N.B.R. (2d) 276 (NBCA) 1 year R. v. Leslie (1995) (NB CA), 162 N.B.R. (2d) 58 (NBCA) 12 months global on 4 counts R v Hurshman [1997] N.B.J. No. 285;1997 CarswellNB 295 (NBQB) 2 years less a day R v McCoy (1989) (NB CA), 96 N.B.R. (2d) 268 (NBCA) 3 years R. c. Guignard 2003 NBBR 47 ,2003 NBQB 47 2 years plus credit for pretrial custody of 2years (plus consecutive terms of 9 months forother offences) R v Frigault 2012 NBCA 8 3 years (plus 1year consecutive for other lesseroffences)R v.

Parlee 2002 NBCA 21 (this is thesame individual from the case cited bycounsel but a separate offence andsentence) 2 years less a day R. c. Dube 2004 NBCA 9 30 months each, but concurrent to each otherfor 2 offences 34. The range of sentences imposed is broad. It is apparent that the sentence for these offences are dependant on the nature of theoffence and offender. For instance, the seven-year sentence in R. v. Robichaud was imposed a “hardened criminal” who stole over$500,000 dollars from safes in two houses. In R. v.

Nowlan, Justice Ferguson imposed what amounted to a sentence of just over 4 yearsfor a series of break ins by an Aboriginal offender but who had a lengthy related record. 35. On the other end of the spectrum, the six-month sentence in FY v R. was imposed on a mother who broke into a residence to get her15-year-old daughter out of the residence, which was the location of an escort service. The 4-month sentence imposed in Lavoie v R. wasimposed as part of a 24-month global sentence. 36.

As indicated, it is apparent that the disparity of sentence is impacted by the nature of the offence and circumstances of the offender.Amongst all of the cases noted above I find the circumstances of Trites and Sacobie most instructive for different reasons. 37. In Trites, Justice Rideout provided a brief explanation of why he was imposing the sentence he was that seems applicable here: I am mindful of

section 718, 718.1 and 718.2 of the Criminal Code of Canada, which outlines the principles and purposes of sentencing.I am mindful as well that the offence committed by Mr. Trites is a serious one. His conduct must be denounced. This is particularly sowhen a private residence or dwelling place has been broken into. The sense of violation, which the victims feel following such an event,is not easily dealt with by the victims. It sometimes has a lasting affect. That is why the maximum sentence contained in the CriminalCode is life imprisonment. That is why my sentence must serve to deter Mr.

Trites and others from committing these types of offences inthe future.[14] 38. In R. v. Sacobie an Aboriginal offender broke into the home of a person he met the night before and stole several items. He pleadedguilty to the offence plus a charge of mischief and breach of probation. The seventeen months he received for the break and enter wasupheld by the Court of Appeal despite the Crown conceding an error in the sentencing judges’ reasons.

Justice Turnbull wrote: In my view, the appellant's history of committing serious offences and his repeated failure to take advantage of the rehabilitativeopportunities accompanying the lighter sentences he received, affirm the Crown's assertion that the sentences imposed in this instancewere appropriate and do not call for appellate intervention despite the error of law.[15] 39. In this case Mr.

Genova’s extremely long criminal history, his inability to take advantage of previous rehabilitative opportunities,and the need to denounce and deter him and others from committing similar offences means that a further period of incarceration isnecessary. Pre-Trial Custody 40. Mr. Genova has been in custody for 133 days. Pursuant to s. 719(3.1) I find the circumstances justify taking that pre-sentencecustody at a rate of one and one-half days for each day. Counsel for Mr. Genova has proposed pre-trial credit be at a 2 for 1 basis. Thereis no statutory or factual basis for this. I find, therefore that Mr.

Genova has spent the equivalent of 200 days in custody. Sentence

41 . Taking into consideration all the aggravating and mitigating factors together with the other principles of sentence that must be applied, I believe that a fit and proper sentence for the count contrary to s. 348(1) (

b) is 18 months imprisonment. I credit Mr. Genova with 200 days of pre-trial custody to be subtracted from the sentence imposed. Therefore, the sentence, going forward, for the count contrary to s. 348(1) (

b) is 11 months and 12 days consecutive to any other sentence Mr. Genova is serving. 42 . I am also imposing a probation order for a period of 2 years. It will not be supervised and the conditions, beyond the statutorily obligatory ones which will be part of the order and explained to the accused upon service of the order, are that he have no contact directly or indirectly with Sylvio Robichaud and that he not go to or be at the residence or property designated as 565 Parker Road, Parker Road, New Brunswick or any other place he knows Sylvio Robichaud to reside or work. 43 .

In addition, ancillary orders are required: a. Section 348(1)(b) (when the location is a dwelling house as indicated in s. 348(1)(d)) of the Criminal Code is a primary designated offence under

Section 487.04 of the Criminal Code and thus pursuant to s. 487.051 I order that such samples of bodily substances that is reasonably required for forensic DNA analysis be taken from Mr. Genova; b. I am not imposing a victim fine surcharge as Mr. Genova has no legitimate source of income. 44 . I sought and received the consent of the parties to provide an oral

summary of these reasons. [16] I am filing a full written judgment and entering it into the record of proceedings, providing a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ________________________ Cameron Gunn, PCJ.