Her Majesty the Queen - v. -, 2016 SKPC 087

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 087 Date: June 30, 2016 Information: 39593592, 38979535, 39593694, 33834602 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Peggy Fehr Appearing: Mr. John Morrall For the Crown Mr. Ian Goldberg For the Accused DECISION ON SENTENCE F.M. DAUNT, J [ 1 ] Peggy Fehr entered a guilty plea to a charge that she did, on or about the 9th day of March, A.D. 2015, steal personal property from Nathan Meier, and at the time thereof did use violence or threats of violence towards him, contrary to section 344(1) (

b) of the Criminal Code . She has also entered guilty pleas to the following

summary conviction offences: 1. April 1st, 2015, breach of undertaking by failing to report, contrary to section 145(3). 2. April 4th, 2015, breach of undertaking, curfew, contrary to section 145(3). 3. April 13th, 2015, contempt of court by failing to appear as a witness, contrary to

section 708 of the Criminal Code . [ 2 ] Crown seeks 30 months in a federal penitentiary. Defence asks this Court to exercise restraint and to impose a less restrictive

sentence. He advocates lengthy probation or, failing that, a shorter custodial sentence followed by probation. A conditional sentence order is not available for this offence, forbidden by subsections 742.1 (

c) and (

e) of the Criminal Code . CIRCUMSTANCES OF THE OFFENCE [ 3 ] Both the offender and the victim of the robbery are of First Nations descent. On March 19, 2015, Nathan Meier was operating a taxi for Checker Cabs in Prince Albert. At about 2:00 a.m., he was dispatched to Georgie’s Beer and Wine store. Peggy Fehr and J.N. got into the back seat. Ms. Fehr sat directly behind Mr. Meier. Unbeknownst to Mr. Meier, Ms. Fehr was in possession of a large kitchen knife. The young women directed the driver to Princess Margaret School, down 4th Street East. They chatted with the driver.

They said they were “buzzed” and that their mother would be angry. The driver heard bottles clinking in the back seat. That made him nervous, as bottles could be used as weapons. The two passengers directed him to turn on 12th East, saying they were going the long way. He parked on 13th Avenue. The women said it was the “wrong parking lot” and insisted that he stop in a parking lot on 4th Street. Fearing danger to himself, Mr. Meier unbuckled his seat belt and drove around the Forestry Centre parking lot. He stopped in a driveway across from a large pub in a “defensive position.” [ 4 ] Ms.

Fehr said “Give us all your money.” Mr. Meier saw her holding a “huge” knife. He described it as a long kitchen chef’s knife, with a rubber black handle, possibly 12-14 inches in length. He put the cab into park, grabbed his phone and the keys, and jumped out of the car, dialing 911 as he ran away. He saw the two women jump out the passenger door and run eastbound. [ 5 ] Mr. Meier estimates that Ms. Fehr and J.N. caused $220.00 in damage to the vehicle: the computer was flipped upside down; the meter was broken, and the glove box flipped open.

They also stole a $10.00 bill and some change. [ 6 ] At 2:36 a.m., the police were dispatched. A police dog found Ms. Fehr and J.N. sitting in a snow pile. The officer commanded them to show their hands, which they did not do. The dog bit Ms. Fehr’s coat near her right elbow. Both women then raised their hands, showing no weapons. [ 7 ] Ms. Fehr complained that the dog bit her leg. She was taken to the Victoria Hospital for a bite wound to her right upper leg.

She was given a tetanus shot, and her wound was cleaned. [ 8 ] The dog located some items, including a Checker Taxi pen and the knife used in the robbery, which had been tossed into a yard a block from where the women were apprehended. [ 9 ] Both Ms. Fehr and J.N. gave statements. Ms. Fehr said that she and J.N. were partying in the “projects” on 17th street. They left that party and went to a friend’s near Riverside Pawn. They drank alcohol and smoked meth. Ms. Fehr took a cooking knife from the residence. Nevertheless, she says the robbery was unplanned. She said J.N. had no

part in the robbery, and admitted she held the knife forward and said “Let’s check out your money,” after which the cab driver “took off”. She found a $10.00 bill and $6.00 in change. She gave the $10.00 bill to J.N. [ 10 ] Mr. Meier did not provide a victim impact statement, but he quit his job at Checker Taxi after the incident. [ 11 ] It is unknown whether J.N. was charged in relation to these events. [ 12 ] The facts on the

summary conviction charges are unremarkable. Ms. Fehr was released on an undertaking and instructed to report to a probation officer, which she failed to do on April 1, 2015. On April 4, 2015, police conducted a curfew check. They knocked on her door and no one answered. Ms. Fehr was subpoenaed as a Crown witness against Macy Yooya, her former partner. On April 13th, she failed to attend and give evidence, possibly because she feared Mr. Yooya.

CIRCUMSTANCES OF THE OFFENDER [13] Ms. Fehr was just shy of her 19th birthday when she committed the index offence. She has a minor and unrelated record, mostof it as a youth. She has no history of violence. [14] Originally from Yellowknife, NWT, she is a member of the Deh Gah Goti Deh Cho Dene Nation. Social Servicesapprehended her at the age of three. Between the ages of three and five, she was in 13 different foster homes. When she was five yearsold, she and her two sisters were placed with a Caucasian family who eventually adopted them. Her brother was placed elsewhere.

Thefamily moved to Cudworth, SK, when Ms. Fehr was a teenager. [15] Ms. Fehr has a poor relationship with her biological mother, whose addiction issues remain unresolved. Her biological fatherdied in 2012, and Ms. Fehr continues to struggle with this loss. After his death, she started engaging in risky behaviours, creatingconflict with her adoptive parents. She moved out of her family home and began a pattern of transiency. She started drinking alcoholand entered into an abusive relationship. She had a baby in April 2014, after which she seemed to settle down.

After seven months,however, she left home to pursue a new relationship with a man in trouble with the law. Ms. Fehr’s child was apprehended and placedwith her adoptive parents. Ms. Fehr remains in this abusive relationship and has given birth to a second child, born in February. She isnow staying with her parents in Cudworth and working toward regaining custody of her children. [16] Although she has little prosocial support in the community of Prince Albert, her parents continue to support her and herchildren. [17] After she was charged with the robbery, she continued abusing substances and committing offences.

Since April 13, 2015,she has not accumulated further charges. Since learning she was pregnant, in June of 2015, she has sought substance abuse treatment onan outpatient walk-in basis. She was remanded in custody between June 10 and June 18, 2015. She has abided by a strict recognizancesince then. ARGUMENTS OF CROWN AND DEFENCE [18] Crown counsel submits that a sentence of 30 months is appropriate for a number of reasons. The motivation for the robberywas to contribute to a party. Ms. Fehr admits to undetected criminal involvement since the offence.

She found it “thrilling and fun” to be“on the run” and is rated at high risk to reoffend. [19] Counsel cites R v Alexson, (1991), (SK CA), 97 Sask R 77 (SK CA) for the proposition that three years ina penitentiary is the starting point for this kind of robbery. The robbery happened at 2:00 a.m. against a vulnerable service sectorworker. Denunciation and deterrence are the primary sentencing goals in such a case. Thirty months would be proportionate to thegravity of the offence and the degree of responsibility of the offender.

This is a serious offence committed against a vulnerable victim. [20] Crown counsel acknowledges the obvious Gladue factors at play in this case, but points out that the victim is also of FirstNations descent. In his submission, it is not fair that Mr. Meier obtain some lesser form of justice in applying Gladue. He relies on R vNayneecasum, 2015 SKPC 172, where the offender received a sentence of three years for four robberies in Prince Albert.

Heacknowledges that our Court of Appeal has given sentences in the range of 12-18 months, but only in cases where the offender’sbehaviour has been exemplary since the offence, which is not so in this case. He also points out the rehabilitative advantage of aPenitentiary term, such as superior programming and earlier release under supervision in the community. [21] Defence counsel on the other hand, submits that incarceration of any length is not appropriate in this case.

He stresses thatsentencing is an individualized process, not simply a matter of plugging this offence and this offender into an arbitrary range set by ourCourt of Appeal. [22] He argues that Ms. Fehr’s moral blameworthiness is low, both because of her intoxication and her very troubled background. He argues that incarceration would be counterproductive both to her and to society at large. She has a two-year-old child and a newbaby, who would be negatively impacted by her incarceration. She has engaged with support services in the community such as

Addictions Services and Social Services. She wishes to enroll in school. [23] In mitigation, he submits the following: Ms. Fehr cooperated fully with police, giving a full confession, and pleaded guilty. She says the crime was not premeditated. Her only plan was to run away without paying for the cab. She was not in her right mindbecause of the influence of drugs and alcohol. She was only 18 years old when she committed the offence. She is remorseful and hasreasonable insight into her offending behaviour. She has not committed a new offence in over a year.

She has but one adult convictionfor violating a youth sentence. This court should therefore treat her as a first offender. She has no prior history of violence. She hasbeen on court conditions since March 9, 2015 and, excepting two minor violations early on, has been compliant with release conditions. She spent one week in custody as a result of those violations. Furthermore, no injuries resulted from the offence. [24] Defence submits that it is disproportionate to send Ms. Fehr to jail for a stupid thing she did for a short time while intoxicatedand using drugs when she was only 18 years old.

He asks this court to put her on probation for two to three years, including four monthsof house arrest. ANALYSIS [25] As Wakeling J.A. said in R v Alexson: This Court has repeatedly indicated that offences of this nature will be treated severely. This is the only means available to the courts todiscourage crimes of this nature which involve victims who are particularly vulnerable to such an attack.

The range of sentences is suchthat 3 years is at the lower end of the scale for an offence of this nature. [26] Similarly, in R v Wiberg, (1997), (SK CA), 158 Sask R 246 (SK CA), Madam Justice Gerwing states: As this Court made clear during the course of argument on this appeal, we have repeatedly stressed the importance of protecting peoplelike taxi drivers and convenience store operators who are in vulnerable positions and we have also repeatedly said that armed robbery isa matter to be taken extremely seriously.

Sentences frequently begin in the range of three years and may be increased for exacerbatingfactors or reduced for mitigating factors. [27] On the other hand, R v Gladue, (SCC), [1999] 1 SCR 688, and R v Ipeelee, 2012 SCC 13 , [2012] 1SCR 433 [Ipeelee], direct me to consider Ms. Fehr’s aboriginal background in arriving at a fit sentence. I take judicial notice of thehistorical factors contributing to her involvement with the criminal justice system; generations of colonialism led directly to herbiological mother’s addiction, to her father’s incarceration, and likely to the domestic violence in the home.

Furthermore, I know littleabout child protection services in the NWT, but they failed Peggy Fehr. According to the PSR: Her primary developmental years were affected by parental alcoholism and violence. She was subject to various foster care placementsand formally adopted by age eight after cycling through 13 foster placements. Instability and attachment disruption affected Peggy’scritical formative years. Peggy feels she was not raised as a First Nations person. She has never lived on reserve and was eventuallyplaced in the care of a Caucasian family.

She was separated from her biological brother in her adoptive placement. Peggy is curious tolearn more about her First Nations culture and ancestry. [28] Peggy Fehr was raised by a loving family not of her own culture. She was separated from her aboriginal community. Nativechildren raised by non-native families face unique challenges of identity, community, and social development. [29] Defence counsel is correct in that sentencing is an individualized process.

The range of sentence handed down by our Courtof Appeal has less weight in light of the Supreme Court of Canada rulings in Ipeelee, dealing with parity, and R v Lacasse, 2015 SCC 64,[2015] 3 SCR 1089, dealing with judicial discretion. However, were I not bound by the rulings in Wiberg and Alexson, I would still findthat such a crime must attract a significant sentence. In part, the role of the justice system is to protect vulnerable members of oursociety. People working in convenience stores and driving taxis earn modest wages but face dangerous working conditions.

PrinceAlbert is home to many addicts who commit crimes to support their habits. If they commit a non-violent property crime to support theiraddiction, it is easy to put that crime in a larger context and emphasize rehabilitation over punishment.

However, resorting to violence tosupport an addiction raises the seriousness of the offence, the threat to public safety, and the moral blameworthiness of the offender. [30] Taking into account the aggravating and mitigating factors cited by Crown and Defence, I find a proportionate sentence thatbest balances the goals of sentencing, including rehabilitation, is a sentence of two years in a penitentiary. It would be longer, but I giveher credit for abiding by the terms of her release since June of 2015. Furthermore, for a youthful offender, a first sentence ofincarceration should not be unduly long or harsh.

In the federal system, Ms. Fehr might benefit from earlier release than in the provincial

system. As well, the federal system provides more culturally appropriate programming. Furthermore, upon her release, she will be supervised in the community with a view to her rehabilitation and reintegration. [ 31 ] Ms. Fehr will be subject to a mandatory firearms prohibition pursuant to s. 109, as well as a warrant in Form 5.03 authorizing the taking of a DNA sample for the national database. [ 32 ] For the

summary conviction offences, given her limited record and her performance on bail, and considering the nine days she spent in custody, she will receive a $50.00 fine and $15.00 surcharge on each count. Dated this 30 th day of June, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ F.M. Daunt, J