R. v. Stevens, 2020 BCPC 104

Citation: R. v. Stevens 2020 BCPC 104 Date: 20200520 File No: 49530-C-2 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLER GREGORY STEVENS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: E. Yao Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Dates of Hearing: April 14 and 28, 2020 Date of Judgment: May 20, 2020

[ 1 ] These are my Reasons for Sentence. I may edit these reasons to make it more grammatically correct or readable, but the result and substance of my decision will not change. [ 2 ] Kyler Stevens has plead guilty to robbery, assault with a weapon and unauthorized possession of a firearm arising in connection with a robbery he committed with his co-accused, Culyer Aubichon, on December 22, 2018. [ 3 ] The Crown and Defence initially proposed a joint submission of time served. At the time of the first date of hearing that would have been equivalent to a sentence of 21 months jail.

In light of the seriousness of the offence and Mr. Stevens’ significant criminal record, I raised concerns about the proposed sentence being contrary to the public interest and asked counsel for further submissions. Counsel now jointly submit a sentence closer to 24 months’ jail, time served, coupled with a lengthy period of probation pursuant to which Mr. Stevens would agree to not be within 100 km of the City of Prince George and would attend counselling. Counsel have advanced the Covid-19 pandemic as one justification for imposing a time served sentence.

Issues [ 4 ] The issue I must decide is whether I ought to accede to the joint submission or reject it on the basis it is contrary to the public interest, or would bring the administration of justice into disrepute. In that analysis I must also consider what impact, if any, the Covid- 19 pandemic has on the sentencing process. Circumstances of the Offence [ 5 ] The victims, Shilo Wishart and Richard Kopchia, were residing in a hotel room in Prince George on the evening of December 22, 2018. There had been a party in a nearby room which the victims had attended with Kalila Ketlo. At around 4:30 in the morning Ms.

Wishart and Mr. Kopchia were in their room when Kalila Ketlo knocked at the door with the two accused, Mr. Stevens and Mr. Aubichon. Ms. Ketlo sought entry to the room under the auspices of having left her personal belongings there. She was allowed entry and Mr. Kopchia remained outside with the two accused smoking. The two accused asked for drugs, to which the victims responded they did not have any. The victims knew Ms. Ketlo but not the accused. [ 6 ] The front desk called the hotel room and told Ms. Wishart the men observed outside their room had to leave or the clerk would call police. Ms.

Wishart told the two accused the front desk said they would had to leave. Mr. Kopchia told the men to come inside to avoid any trouble. [ 7 ] Once Mr. Stevens and Mr. Aubichon came inside the room one produced a hammer and the other produced what Mr. Kopchia described as a “home-made zip gun” wrapped in a camouflage covering. For the purpose of sentencing Crown and Defence agree this was a replica, not real, firearm.

It is not alleged which accused wielded the hammer and which wielded the replica firearm, but it is not contested the two accused were acting in concert. [ 8 ] The perpetrator armed with the replica firearm forced Mr. Kopchia into the bathroom where they struggled over the weapon. During the struggle the perpetrator said “do you want to get shot?” The other perpetrator, armed with a hammer, assaulted Ms. Wishart in the living room. She was knocked to the ground where the assailant kicked and struck her.

He told her to “stay down.” At one point she was struck on the head with what she believed was the hammer. [ 9 ] The accused armed with the hammer then went into the bathroom where Mr. Kopchia and the other accused were struggling, and struck Mr. Kopchia on the head with the hammer three times. The two accused then stole the victims’ cell phones, wallets and bags which contained their personal items, including pictures of the victims’ children. [ 10 ] The victims called police right away and provided a description of the suspects’ vehicle and their appearance.

Both victims were bleeding heavily from their heads and were taken to hospital in an ambulance where they required sutures to close their wounds. Surveillance footage of the two accused and Ms. Ketlo was captured on the hotel’s security system, although it was not of sufficient quality to identify their faces. The video captured the accused’s getaway vehicle. A .22 calibre cartridge was later recovered from the hotel room. [ 11 ] Police were able to ping the victims’ stolen cell phones which were tracked to an area on Quince Street.

At 5:00 a.m. police located the suspect vehicle parked in the driveway of a residence on Quince street. A male came out of the residence and told police “it was not me it was Kyler and they are going through the wallets right now.” This male said there may be a .22 calibre firearm inside but he was not sure. [ 12 ] The police made exigent entry and found the two accused inside going through the victims’ belongings. Police saw Ms. Wishart’s purse, the victims’ cell phones, and a note with Ms. Wishart’s name on it. A search of the home produced cell phone chargers with Ms.

Wishart’s name on them, both victims’ identification, a ball-peen hammer, and a small .22 calibre handgun wrapped in a camouflage covering. It is admitted this item was a genuine firearm, which is the basis of Mr. Stevens’ plea to unauthorized possession of a firearm contrary to s. 92(1) of the Criminal Code . [ 13 ] For the purpose of sentencing it is admitted Mr. Stevens was in possession of the firearm found at his residence, but not at the time of the robbery, notwithstanding he has plead guilty to assault with a weapon, to wit, an “imitation firearm” contrary to s. 267 (

a) of the Criminal Code . As such the four year statutory minimum sentence prescribed by s. 344(a.1) for robbery with a firearm does not apply. [ 14 ] Surveillance video taken from the residence showed four people leaving the house at 4:10 a.m. and getting into the vehicle, then returning at 4:32 a.m. The two accused are captured coming inside the residence with bags. A swab taken from Mr. Stevens’ shoe produced Mr. Kopchia’s blood.

Circumstances of the Offender [ 15 ] Mr. Stevens has a significant and serious criminal record for a young man of 24 years. He has been offending continuously since 2009, with his adult record commencing in 2014. [ 16 ] Mr. Stevens has two prior convictions for assault with a weapon, four prior convictions for assault, two convictions for assaulting a peace officer, a conviction for sexual assault and two convictions for uttering threats.

He has seven convictions for obstructing or resisting police officers, four weapons offences, five property offences, and convictions for mischief, flight from peace officer, dangerous driving, and possession of break-in instruments. He has 17 convictions for breaching court orders. His record is vast and diverse, representing the accumulation of 46 convictions in the span of 10 years. The pre-sentence report demonstrates that since 2009 Mr. Stevens has spent approximately 72% of his time in custody. He has been in custody almost continuously since 2015. [ 17 ] Mr. Stevens indicates he self-identifies as Metis.

He was often in Ministry care as a child due to his mother’s drug addiction and lived in various family, group homes and foster homes. He had no relationship with his father who is also addicted to drugs. He has a five year old son who is in the care of a relative. [ 18 ] Mr. Stevens has a grade 9 or 10 education and limited work history due to the time he has spent in custody. He is addicted to methamphetamines which he has used almost daily since age 16.

He is currently on suboxone to assist overcoming a heroin addiction. [ 19 ] After expressing concerns about the joint submission, counsel revised their position to add counselling and geographical restrictions to the proposed probation order. Principles of Sentencing [ 20 ] The Principles of Sentencing are set out at s. 718 of the Criminal Code : s. 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. [ 21 ] Pursuant to s. 718.1 of the Code a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating factors (s. 718.2(a)). The parity principle espoused in s. 718.2(

b) provides that a sentence should be similar to that imposed on similar offenders for similar offences committed in similar circumstances. The principle of judicial restraint is codified in s. 718.2(d). [ 22 ] In my view, the principles of sentencing which ought to be emphasized for a violent crime of this nature are denunciation and deterrence. Given Mr. Stevens’ serious and lengthy criminal record and lack of concrete plan to address his addictions, separation of the offender from society also takes on greater significance. Range of Sentence [ 23 ] Sentencing ranges are relevant to the principle of parity set out in s. 718.2(

d) of the Code . This was an armed robbery involving a hammer and imitation firearm carried out in the victims’ temporary residence, in which gratuitous violence was inflicted upon the victims. [ 24 ] Similar facts were considered by the Court of Appeal in R. v. Klapcic , 2001 BCCA 487 in which the accused robbed and assaulted a man who had just withdrawn money from an ATM using an imitation replica firearm. The victim suffered facial lacerations from being struck with the weapon. The accused had a serious criminal record and substance addictions. He had three prior robbery convictions.

The Court upheld the twelve year sentence imposed by the trial judge, saying at par. 14: [14] Although it can be said that the more serious robberies attract sentences in the range of seven to nine years, nine years is not the upper limit. In cases involving physical injury to the victim where the perpetrator is not a young adult and has a serious criminal record, the sentences exceed nine years. [ 25 ] In support of its position, the Court referred to R. v. Johns , 1999 BCCA 288 in which a 44 year old offender entered his friend’s home on a pretext.

Once inside, he struck the victim with a metal filled sock and robbed the victim of his cash. He had an old record for property offences and a dated conviction for armed robbery. The Court upheld the 10 year sentence imposed by the trial judge. [ 26 ] In R. v. Gill, 2006 BCCA 127 , the 23 year old offender robbed a convenience store using an imitation handgun while wearing a ski mask. No actual violence was used. He had a record for theft, breach, and a youth record for sexual assault.

The Court set aside the 6 year sentence imposed by the trial judge and substituted a four year sentence, citing the accused’s age, the absence of any record for similar offences, and the fact that it was a “single incident involving an unloaded replica.” In coming to that decision, the Court considered R. v. Bell , 2005 BCCA 403 , in which a sentence of 3.5 years was upheld for a 38 year old accused with a lengthy criminal

record related to her drug addiction, who robbed a gas station using an imitation firearm. [27] The Crown and Defence submit that the range for this type of offence and type of offender is 18 months to 10 years. In supportof that submission they have provided the authorities of R. v. McPherson, 2003 BCCA 183 and R. v. Nakamura, 2012 BCSC 327.Neither case is comparable to the case at bar. In McPherson, the 22 year old offender approached a 16 year old and forced him towithdraw $30 from an ATM while brandishing a screwdriver. The accused was intoxicated and apologized to the victim during therobbery.

No actual violence was used. After taking into account time credited of nine months, the total jail sentence imposed was 27months. Unlike the case at bar, the robbery did not occur in the victim’s residence and the victim was not hurt. [28] In Nakamura, the accused was 18 years old at the time of the offence. He and his young associate lured the victim to a publicpool where they stabbed him and robbed him of his cash and drugs. The victim received life threatening injuries. The accused wasconvicted after trial of aggravated assault and robbery.

The trial judge suspended the passing of sentence and placed the accused on a 2year probation order with 500 hours of community service. The trial judge was strongly influenced by the youthfulness of the offender,who had no criminal record and was still in high school at the time of the offence. He had a positive pre-sentence report and wasgainfully employed. His youthful co-accused had received non-custodial dispositions under the YCJA. The trial judge also considered thecollateral immigration consequences if a custodial sentence were imposed.

None of the mitigating factors which informed the sentence inNakamura are present in this case. [29] In Klapcic, the Court found that the cases adduced by the Defence to justify a sentencing range of seven to nine years were notapplicable to the accused’s circumstances because those cases were less serious and involved younger offenders, offenders with lessserious records or did not have actual physical injury as a factor. In Nakamura, Justice Romilly concluded the range of sentence forrobbery was two to nine years, citing R. v Brogan, 1999 BCCA 278.

He says at par. 116: [116] In Brogan, this Court found that the sentencing range for cases where robbery with violence has been committed by "young men"is two to nine years. In that case, the appellant was 30 years old.

The Court referred to the following factors to be considered insentencing, at para. 10: the age of the offender; previous criminal experience; the level of violence; the number of offences; the level ofpremeditation; whether the perpetrator was disguised or not; the type of weapon used and how it was used; the possibility ofrehabilitation; and the requirement of deterrence in a particular community. [30] Mr. Stevens is a young adult of 24 years with a lengthy, serious and violent criminal record.

There were two weapons used, oneof which was an imitation firearm, two perpetrators were involved, and actual violence was used against the two victims. I infer in all ofthe circumstances, including that the accuseds came to the room armed with weapons and immediately demanded drugs once inside, thatthe robbery was planned. The prospect of rehabilitation is not overwhelming given Mr.

Steven’s lengthy record and attitude towardscounselling as expressed in the pre-sentence report. [31] Two years represents the lowest end of the range and would ordinarily be appropriate in circumstances where the offender has alimited criminal record and strong prospects of rehabilitation, in circumstances devoid of such aggravating features as the infliction ofinjury and employment of a replica firearm in the victims’ residence. In my view, a fit sentence for this offence and this offender wouldordinarily start at four years’ jail. The joint submission falls significantly below that.

Principles of Sentencing Applicable to Aboriginal Offenders [32] Mr. Stevens self-identifies as Metis based on his maternal grandmother’s ancestry. S. 718.1(

e) of the Code mandates that allavailable sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims, or tothe community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Theprocess for sentencing Aboriginal offenders was articulated by the Supreme Court in the seminal cases of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; S.C.J. No. 19 (QL) and restated in R. v.

Ipeelee, 2012 SCC 13. [33] As explained by LeBel, J. in Ipeelee, the law requires that a sentencing Judge engage a different process for arriving at a fitsentence where the offender is Aboriginal, not necessarily impose a different sentence. S. 718.2(

e) of the Criminal Code does not requirean automatic reduction of a sentence or warranted period of incarceration simply because the offender is Aboriginal (par. 71). Rather,courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that historycontinues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse andsuicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify adifferent sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel (par. 60). [34] Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part inbringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may beappropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets ofcircumstances bear on the ultimate question of what is a fit and proper sentence (Ipeelee at par. 72).

Systemic and background factors arerelevant to the extent that they may bear on the moral culpability of the accused, while the types of appropriate sanctions may berelevant to the effectiveness of a proposed sentence. [35] The pre-sentence report documents that Mr. Stevens’ mother started abusing drugs following the commencement of herrelationship with Mr. Stevens’ father. Substance abuse and domestic violence were commonplace in the home, leading to Mr. Stevens’removal by the Director of the Ministry of Child and Family Development. Growing up, Mr.

Stevens lived between his paternalgrandmother’s residence, mother’s residence, aunt’s residence, and foster care placements. Mr. Stevens’ mother was often involved inthe criminal justice system and his father was absent. By 2009, Mr. Stevens starting leaving his foster care homes and hanging aroundwith youth involved in the Kamloops drug trade. [36] Mr. Stevens has a grade 9 or 10 education and no real vocational skills. He has a child who lives with a relative under thesupervision of the Director. He has been diagnosed with ADHD but is otherwise healthy.

He expressed reticence at the utility ofcounselling, and has not found it helpful in the past. Historically he has successfully completed programming modules during periods of

custody, however, he continues to re-offend upon release. He told the author of the PSR he does not wish to be under communitysupervision following his release and would like to manage his own goals and treatment needs. He only expressed an interest incounselling after I raised concerns about the propriety of the joint submission and invited further submissions from counsel. I considerMr. Stevens’ commitment to rehabilitation to be lukewarm, at best. [37] Mr. Stevens declined to provide information to the author of the PSR about his Aboriginal heritage.

The only informationbefore the court is he identifies as Metis. I have been provided no information about Mr. Stevens’ grandmother, her experiences, or howthose experiences may have played a

part in Mr. Stevens’ mother’s issues. Notwithstanding that evidentiary vacuum, the Court can takejudicial notice of the legacy of colonialism and the displacement of the Metis community how that may have played a role in bringingMr. Stevens before the Court. [38] The types of factors identified by the Supreme Court in Gladue and Ipeelee are present in this case, including familialdysfunction and drug abuse, intervention by child protection authorities, childhood instability, poverty and low educational attainment.These factors are relevant in assessing Mr. Stevens’ moral culpability.

However, in these circumstances they do not strongly support theimposition of a different sentence, given the seriousness of the offence and the absence of a compelling rehabilitative plan to address thefactors contributing to Mr. Stevens’ offending behaviour. [39] Given the nature of this offence and the principle emphasis on the objectives of deterrence and denunciation, the only fitsanction in this case is a period of jail. Alternative sanctions related to Mr. Stevens’ Aboriginal identity are not appropriate in this caseand no one has proposed a culturally specific sentence for Mr. Stevens.

Aggravating and Mitigating Factors [40] Mr. Stevens’ guilty plea is a mitigating factor and spares the victims the stress of testifying. I accept the victims live in acommunity which is critical of individuals who participate in the criminal justice system as Crown witnesses, such that relieving them ofthe need to testify provides additional benefit. That being said, the plea was not entered early but on the trial date after the victims werealready forced to attend court. [41] Mr.

Stevens has completed some programming modules while on remand, including Essentials Skills to Success courses foremployability, relationships, health, and the substance abuse management CORE program. [42] There are numerous aggravating factors. The robbery was carried out in a temporary residence where the victims were entitledto feel safe. The robbery involved some degree of premeditation and the two men acted in concert to better overtake the victims.

Areplica firearm was used, and the two accused intended the victims to believe the item was a real firearm as demonstrated by the threat“do you want to get shot?” Gratuitous violence was used against Ms. Wishart, who was knocked to the ground, kicked, and hit on thehead. Both victims were injured. Mr. Stevens has a serious criminal record which includes multiple convictions for offences involvingviolence and weapons. [43] It is also aggravating that at the time of the offence Mr. Stevens was still on probation for a July 21, 2017 conviction forobstructing a peace officer.

He was also on a lifetime firearms prohibition order at the time he was found in possession of the firearm atthe residence. Impact of Covid-19 on Sentencing [44] It was submitted that one of the rationales for the joint submission of time served was to remove Mr. Stevens from jail in lightof the Covid-19 pandemic, which is present in some correctional institutions. In support of this position the Crown adduced a letter toofficials in the criminal justice system from the Assistant Deputy Minister of Public Safety and Solicitor General.

The letter explains thatinmates are likely more vulnerable than the general population of contracting or transmitting Covid-19 due to the confined conditions ofjail. B.C. Corrections is taking a number of steps to mitigate this risk through the imposition of a number of protocols, but seekscooperation from other participants in the criminal justice system to reduce the prison population by considering alternatives toincarceration for individuals who are not a public safety risk. In my view, Mr.

Stevens is an individual who poses a public safety risk. [45] The issue I must consider is whether the risk posed by the Covid-19 pandemic justifies a significant reduction of sentence. [46] The potential effect of the pandemic on Mr. Stevens is not a “mitigating factor” warranting a non-custodial sentence. Mitigatingfactors generally relate to the character of the offender, the nature of the offence and the circumstances surrounding its commission. It isalso not an “exceptional circumstance” as contemplated in R. v.

Voong, 2015 BCCA 285 as it is irrelevant to the rehabilitation of theaccused. [47] The potential risk posed by the pandemic if Mr. Stevens were sentenced to a period of custody is best characterized as a“collateral consequence” as contemplated in R. v. Pham, 2013 SCC 15. It relates to the principle of proportionality espoused in s. 718.1of the Criminal Code. The potential impact of Covid-19 on an offender sentenced to prison may result in the offender serving a sentencewhich is disproportionate to the offence and his or her degree of moral responsibility.

A prison sentence can mean the offender is placedat risk of contracting a potentially harmful disease or is subjected to lengthy periods of lockdown, lack of stimulation, and socialisolation. When viewed against the offence they committed, what would otherwise be a fit sentence may become increasingdisproportionately punitive. [48] “Collateral consequences” may be taken into account as personal circumstances of the offender. Collateral consequencesaddress situations where a particular sentence would have a more significant impact on the offender because of his or her circumstances(R. v. Suter, 2018 SCC 34).

The Ontario Court of Appeal in R. v. Morgan, 2020 ONCA 279 characterized the effects of Covid-

19 in custody as falling into the category of collateral consequences for sentencing purposes. In R. v. Lemmen , 2020 BCPC 67 , Judge McCarthy also characterized the issue of conditions of incarceration during Covid-19, as being the impact of a collateral consequence. [ 49 ] The impact of collateral consequences does not displace the general rule that a sentence must be fit, having regard to the particular crime and offender.

A sentencing judge may take collateral consequences into account, provided the sentence ultimately imposed is proportionate to the gravity of the offence and degree of responsibility of the offender. The farther away the varied sentence is from the range of otherwise appropriate sentences, the less likely it will be proportionate ( Pham , at paras. 14 and 15 ). [ 50 ] Collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender ( Morgan , at par. 10 ).

In Morgan , the accused sought to reduce his “otherwise fit” sentence in light of Covid-19. The Court dismissed the appeal and concluded that any potential remedies respecting the impacts arising from Covid-19 could be addressed through the Parole Board. [ 51 ] In R. v. Dakin , 2020 ONCJ 202 the Court said that Covid-19 must be balanced with other sentencing principles, and the sentence cannot bring the administration of justice into disrepute, or be contrary to the public interest.

The Court would have imposed a sentence of 10 months, but slightly reduced it to 8.2 months to allow the offender’s immediate release on time served. [ 52 ] In R. v. Hearns , 2020 ONSC 2365 Pomerance, J. said at par. 23: [23] Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty - be they direct or collateral - cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk.

See: R. v Day , 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K. , 2020 ONSC 1935 , at para. 74 : In

summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public. [ 53 ] After discussing the need for “humanity,” Justice Pomerance concluded that where a period of time served can address sentencing principles, even imperfectly, a release from prison is a fit an appropriate response.

She acceded to the joint submission before her, finding 33 months’ time served and 3 years’ probation was sufficient to reinforce the objective of protecting the public in the case of an aggravated assault. [ 54 ] In R. v. Parasmothy , 2020 ONSC 2314 , the Court commented that there has been a move towards decreasing the inmate population as a result of the pandemic by release on bail and creative sentences which avoid incarceration.

However, those measures should not be confused as meaning the default position will be for all people to remain out of custody where custody is necessary and warranted (par. 140). [ 55 ] Counsel have provided the decision of R. v. Kandhai, 2020 ONSC 1611 in which the accused plead guilty to possessing a prohibited firearm together with readily accessible ammunition. The Crown’s sentencing position was four to five years and the Defence position was three years.

While the Court referred to the pandemic as a “significant factor” warranting a time served disposition, the Court was also influenced by the fact the accused was entitled to presentence credit of 45 months, and was therefore “in the general neighborhood of the Crown’s position.” The sentencing judges in Lemmen and R. v. McGrath, 2020 ONCJ 192 both interpreted Kandhai as authorizing the imposition of a slightly more lenient sentence to achieve time served, provided the sentence was still fit and within the range. By contrast, the sentence proposed by counsel for Mr.

Stevens is materially outside the range. [ 56 ] In McGrath , the accused was found guilty of various firearms related offences including possession of a loaded handgun. The Defence sought a sentence of 520 days time served, while the Crown sought a sentence of 1825 days jail. The accused cited Covid-19 as the basis for a time served sentence. Distinguishing Kandhai , Judge Berg noted the accused’s position was “not in the general neighborhood” or “anywhere close” to the Crown’s position.

He says at par. 28: [28] While the decision of the Superior Court in Kandhai is indeed predicated to an extent on the existence of the pandemic, it does not stand for the proposition that all other sentencing principles and factors must be held in abeyance as the illness runs its course though our society. What it does stand for is the principle that where there are urgent exigent circumstances, an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances.

This was made patently clear by Harris J.in the last sentence of paragraph 7 of the decision: "[g]iven how much time he has served thus far in custody, it is in Mr. Kandhai's interest and the public's interest as well, that he be released at this point in time." [ 57 ] In assessing how the pandemic would impact the accused if incarcerated, Judge Berg observed he was no less vulnerable than offenders who commenced serving their sentences before the outbreak.

It was his view that a reduction of sentence predicated solely on the existence of Covid-19 would be arbitrary as persons already serving their sentences could not benefit even though they faced the exact same level of risk. The Judge ultimately sentenced the offender to three and a half new years’ jail. [ 58 ] In R. v. Laurin , [2020] O.J. No. 1266 (ONCJ) the accused plead guilty to dangerous driving causing death. The trial judge stated that had a fit sentence been only a few months more of custody, he would have little hesitation in reducing the sentence to time served.

However, having found a fit sentence was three years (which necessitated 12.5 new months of custody), he declined to reduce the sentence to allow for time served. [ 59 ] In Lemmen , the Crown sought four and a half years’ jail for various firearms offences, while the Defence sought a non-custodial conditional sentence order in light of Covid-19. Judge McCarthy declined to order time served, concluding that in order to make a “significant reduction” to what would otherwise be a fit sentence requires sufficient evidence of the collateral impact of Covid-19, which was not before him.

With respect to proportionality, he says at par. 188:

[188] … While courts must be able to react appropriately to important changing conditions in extraordinary times, in cases such as thisone there must still be an adherence to the established laws of sentencing. That must continue, notwithstanding any immediate exigenciesat any given time.

Were it otherwise, the Rule of Law will be eroded and public trust and confidence in our judicial system will beharmed. [60] Judge McCarthy concluded he could not put “any significant weight” on the existence of the pandemic in arriving at hissentence and imposed a four and a half year sentence sought by Crown. [61] Counsel have also provided the decision of Judge Kwolek in R. v. Wilson, 2020 ONCJ 176 in which the offender plead guilty toassault causing bodily harm.

Judge Kwolek articulated that in imposing sentence the court “must recognize and consider Covid-19implications and the provisions of s. 718.2 of the Criminal Code” (par. 37). However, he ultimately decided that given the accused’shistory of violence a further period of incarceration was appropriate and a conditional sentence order was not, notwithstanding Covid-19concerns. [62] In R. v. Haynes, [2020] O.J. No. 1982 (ONCJ), the Crown sought a sentence of 730 days while the Defence sought a sentenceof 646 days’ time served.

The Court qualified that its consideration of the Covid-19 virus and the offender’s submissions must bebalanced with other sentencing principles, and the sentence cannot bring the administration of justice into disrepute nor be contrary to thepublic interest. The Court concluded that the Covid-19 factor did not justify reducing the sentence to a time served position. [63] In short, while Covid-19 must be taken into account in sentencing Mr.

Stevens, it cannot justify the imposition of a sentencethat is disproportionate to the degree of seriousness of the offence and his moral responsibility or would otherwise be contrary to thepublic interest. He is not in the same situation as other offenders for which a non-custodial sentence is still a fit sentencing option. [64] Mr. Stevens has not adduced any specific evidence demonstrating how a further period of jail would expose him to significantcollateral consequences, tipping the balance of proportionality in favour of a time served sentence.

He has no particular health or otherissues which would make a custodial sentence unduly harsh or punitive. DeWitt-Van Oosten, J.A. in R. v.

Myles, 2020 BCCA 105declined to release the appellant on bail pending appeal on the basis of Covid-19 in circumstances where the court was provided noinformation about the specific level of risk faced by the appellant, his health vulnerabilities or steps taken by the institution to mitigatethe risk. [65] While Myles was decided in the context of an application for bail, the evidentiary issues addressed in the case are relevant in thecontext of sentencing where an accused seeks a significant reduction of sentence on the grounds of the impact of the collateralconsequences of Covid-19. [66] In

summary, I find the collateral impact of Covid-19 on Mr. Stevens if he were sentenced to a further period of custody is not ofsufficient force to warrant a significant reduction of custody to maintain proportionality. Principles of Joint Submissions [67] The sentence comes before me as a joint submission. As such, I am bound by the principles set out by Mr. Justice Moldaver inR. v. Anthony Cook, 2016 SCC 43. I cannot reject the joint submission only because the proposed sentence is not fit.

I may only departfrom the joint submission if the proposed sentence is contrary to the public interest or would bring the administration of justice intodisrepute. Moldaver, J. adopted the following explanation of those concepts from R. v.

Druken, 2006 NLCA 67: [33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary tothe public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system". And, as stated by the same court in R. v.

B.O., 2010 NLCA 19 , at para. 56, whenassessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts". [68] Moldaver, J. concludes that rejection of a joint submission denotes a submission so unhinged from the circumstances of theoffence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances,including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system hadbroken down (at par. 34).

This is an “undeniably high threshold.” [69] The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that thetrial judge ought to accept the joint submission, even though it may be unduly lenient. By contrast, where the joint submission resultedfrom the accused’s realization that conviction was inevitable, the same sentence may cause the public to lose confidence in the criminaljustice system (par. 53). [70] Assuming the cooperation of the victims, the Crown’s case against Mr. Stevens is strong. Mr.

Stevens was found in possessionof the victims’ stolen belongings within 30 minutes of the robbery. The robbery getaway vehicle was identified by hotel surveillancevideo and found in driveway of the residence where Mr. Stevens was found inside in the company of Kalila Ketlo. Surveillance from theresidence shows Mr. Stevens leaving right before the robbery and returning right afterwards. A unique gun in a unique wrapping, asdescribed by the victims, was found in that same residence. The victims had injuries consistent with the events they described. One of thevictim’s blood was found on Mr.

Stevens’ shoe. [71] The Crown submits a strong factor underlying the reason for the proposed sentence was the apparent reluctance of the Crownwitnesses. The Crown complained the victims were hard to reach by phone. However, the victims live a marginal lifestyle. It is notuncommon for persons of limited means to have intermittent cell phone access. One cannot infer witnesses will refuse to testify onlybecause they are hard to reach by phone. [72] The Crown also suggested I could infer the victims were non-cooperative because they failed to attend the Crown Counsel

office before the trial commenced. On the trial date, both victims attended the Courthouse as required by their subpoenas. I am told that another Crown Counsel who encountered the victims in the courthouse instructed them to go upstairs to meet with the prosecutor before the trial was called. The victims did not go upstairs as directed for a meeting. They appeared nervous, fearful and non-committal about testifying.

The Crown says this raised concerns about the victims’ intentions and level of cooperation. [ 73 ] To the extent it is argued the victims may not have been ideal witnesses, much of their evidence was corroborated by the observations of police officers immediately after the robbery. However, their testimony was still necessary to establish their injuries were the product of an assault and that their belongings were taken without their consent. [ 74 ] I accept that given the subculture in which these events took place the victims felt fearful about giving evidence as prosecution witnesses.

I also accept that Crown counsel was well placed to assess the strengths and weaknesses of the prosecution’s case and weigh the risks associated with forcing reluctant witnesses to testify. Mr. Stevens’ guilty plea provided benefit to the Crown by ensuring certainty of conviction and sparing the victims the emotional cost of a trial as contemplated in Anthony-Cook . [ 75 ] The Crown and Defence submit the lengthy and restrictive probation order being proposed has deterrent and denunciatory effects, as well as serves to protect the public. The proposed order would have Mr.

Stevens undergo counselling and be restricted from being in the City of Prince George for three years. Mr. Stevens says he is working towards finishing grade 12 and plans to move to the Penticton area to live with his Aunt once released. It is suggested that removing Mr. Stevens from his criminal peer group in Prince George will sever those negative connections and aid his rehabilitation. The Crown suggests the community can also be protected by the imposition of a curfew. [ 76 ] Probation orders are imposed to facilitate rehabilitation of the offender and protect society while the offender is in the community.

They do not reflect the seriousness of the offence or the offender’s degree of moral culpability, nor are they intended to fill the need for denunciation or deterrence ( R. v. Proulx, 2000 SCC 5 at par. 32 ). Their purpose cannot be punitive. However, probation conditions may have a deterrent and denunciatory effect on the offender in additional to a rehabilitative effect ( Voong , at par. 43 ). Conclusion on Sentence [ 77 ] The proposed joint submission is not a “fit” sentence. The range of fit sentence for this type of offence and this type of offender would ordinarily start at four years jail.

The impact of Covid-19 on incarcerated offenders does not justify the imposition of a two-year sentence on the grounds of proportionality and the impact of collateral consequences. While the revised probation order goes much further to protect the public and may have a deterrent effect on Mr. Stevens, the dominant purpose of the order cannot be punitive. [ 78 ] That being said, “fitness” is not the test I must apply when considering a joint submission on sentence. My discretion is much more constrained.

I can only reject the joint submission if it is contrary to the public interest or would bring the administration of justice into disrepute. While Mr. Stevens has a lengthy and serious criminal record, he has plead guilty in circumstances where the Crown was not confident its material witnesses would testify if the matter proceeded to trial. There was also concern about the ability to complete the trial within the deadlines set out by the Supreme Court in R. v. Jordan, 2016 SCC 27 . Mr. Stevens is still young and there is still some prospect for rehabilitation.

He is an Aboriginal offender whose personal circumstances were affected by the kinds of factors identified in Gladue and Ipeelee. He has proposed a lengthy period of probation which addresses public safety concerns by removing him from his criminal peer group for several years. [ 79 ] While the proposed sentence is significantly below what would ordinarily be fit and appropriate in the circumstances, I cannot say that a reasonable member of the public, informed of all of these factors, would lose confidence in the institution of the courts if the sentence were imposed.

In light of the additional protective conditions contemplated in the probation order, I cannot conclude the proposed sentence is contrary to the public interest or would bring the administration of justice into disrepute. I will accede to the joint submission. [ 80 ] To date Mr. Stevens has served 482 days in presentence custody. He is entitled to enhanced credit as contemplated in R. v. Summers, 2014 SCC 26 . On the counts of robbery and assault with a weapon, Mr. Stevens is sentenced to a period of jail of 723 days, time served.

On the count of unauthorized possession of a weapon he is sentenced to 365 days jail, time served. All sentences for all counts are to be served concurrently. [ 81 ] He is also sentenced to a period of probation for three years, on the following conditions: 2001 You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. 2103 You must report by telephone to a probation officer at 250-614-2678 by 4:00 PM today. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report.

After that, you must report as directed by your officer. 2201 When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your officer. 2002 You must have no contact or communication, directly or indirectly, with Shilo Wishart or Richard Kopchia.

2005 You must not go to or be within 100 metres of any place where Shilo Wishart or Richard Kopchia lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures. 2005 You must not go to the northstar Motor Inn in Prince George, B.C. 2209-1 For the first 12 months of this order, you must obey a curfew by being inside your residence, or on its lot, between 10:00 p.m. and 6:00 a.m. every day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends or calls to check on you during the curfew. You may be away from your residence during the curfew with the prior written permission of your probation officer. Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence.

You may also be away from your residence during the curfew hours while at, or going directly to, or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your probation officer with proof of your attendance at the facility. 2302 You must not be within a 100 kilometre radius of Prince George, B.C., except with the prior written permission of your probation officer. Such permission is to be given only for compelling reasons.

You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area. 2501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for alcohol or drug addiction. 2610 You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including : a. firearms and ammunition; b. cross-bows, prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation of all the above, including any compressed air guns or BB/pellet guns; or e. any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 82 ] Robbery and assault with a weapon are primary designated offences.

Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. You must attend at the RCMP detachment in Prince George, B.C. or Penticton, B.C. by no later than June 30, 2020 and submit to the taking of the samples. This order is valid until executed. [ 83 ] All three counts attract a mandatory firearms prohibition. Pursuant to section 109(3) of the Criminal Code , Mr. Stevens is prohibited from possessing any firearm, cross-bow, restricted or prohibited weapon, prohibited device, ammunition, and explosive substance for life. __________________________________ The Honourable Judge Cassandra Malfair Provincial Court of British Columbia