Her Majesty the Queen - v. -, 2016 SKPC 045

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 045 Date: March 23, 2016 Information: 31224550 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Susan Mary Felix Appearing: John Morrall For the Crown Estelle Hjertaas For the Defence _____________________________________________________________________________ DECISION ON SENTENCE H.M. HARRADENCE , J _____________________________________________________________________________

[ 1 ] This offender has plead guilty to two charges which occurred on February 14, 2015: On or about the 14 th day of February, A.D. 2015 at or near Prince Albert, Saskatchewan did steal cigarettes, from Mohammed Hakim Husain, and at the time thereof did use violence, contrary to section 344(1) (

b) of the Criminal Code ; and On or about the 14 th day of February, A.D. 2015 at or near Prince Albert, Saskatchewan did steal merchandise, the property of South Hill Liquor Store, Prince Albert, SK, of a value not exceeding five thousand dollars, contrary to

section 334 (

b) of the Criminal Code . [ 2 ] The second count involves the theft of a 26 oz. bottle of vodka from the South Hill Liquor Store in Prince Albert. This offence occurred at approximately 5:00 p.m. [ 3 ] The first count occurred at approximately 9:35 p.m. This offender participated with two males and a female in the armed robbery of an Esso Convenience Store in Prince Albert. During the robbery this offender took six packages of cigarettes.

Hall stabbed the clerk in the eye with a knife he had in his possession. [ 4 ] The offender was arrested and gave a warned statement to police, in which she eventually admitted her involvement in both the theft and the robbery. [ 5 ] The Crown says there are several aggravating circumstances to this robbery: 1. The use of a knife; 2. The injury to the victims eye; 3. The fact that all of the accused participated in the planning of this robbery, and apparently waited to make sure the victim was the only clerk in the store; 4.

The offender witnessed the knife being used and the injury sustained to the victim’s eye, and continued to demand the victim to open the cash register and when he did not, she stole six packs of cigarettes; 5. At the time of the offence, the offender was serving a Conditional Sentence Order; 6. This offender has a prior criminal record which includes a prior conviction for assault with a weapon; and 7.

The store clerk was a vulnerable victim in a Convenience Store alone. [ 6 ] The Crown has stated in reference to Alexson , 1991 SKCA 7959, and Wiberg , 1997 SKCA 9809, that the Saskatchewan Court of Appeal has identified a starting point sentence of three years emphasizing public protection, deterrence and denunciation. Given the aggravating factors in this case, the Crown is suggesting a sentence in the range of three to three and one- half years. [ 7 ] The defence is requesting a sentence of two years less a day.

Important to consider is the fact that the offender gave an inculpatory statement admitting her involvement, and that she entered a guilty plea to the offence. Ms. Hjertaas says that on the night of February 14, 2015, this offender was both intoxicated by alcohol and using marihuana. The individuals she was with were pressing and challenging her to participate in this robbery according to Ms. Hjertaas. This offender had not met several of the people before the evening in question.

She did participate in the robbery but I find that the offender with the knife, Chastin Hall, and the offender who was driving the vehicle (Isbister) were the principal offenders and the two females were secondary both in the planning and execution of the offence. The females, including this offender, are responsible for their actions but are not as morally blameworthy as the two male

offenders. [8] I agree with the Crown that a starting point sentence has been identified by our Court of Appeal for robbery for three years. Imust carefully assess the individual circumstances of this offender and the offence to determine what sentence is appropriate. Asindicated in R v Lacasse, 2015 SCC 64 [Lacasse], and R v Peyachew, 2016 SKCA 21, at paragraph 17, the cardinal principle ofsentencing is whether the sentence is proportionate to the offender’s moral blameworthiness and the gravity of the offence. [9] This offender is of First Nations decent. As with all sentences, I must be mindful of restraint in the imposition of a jailsentence. Both counsel have indicated that s. 718(2)(

e) should not automatically result in a reduction of sentence. Rather I must assessthe offender’s moral blameworthiness and examine alternatives to incarceration which could be used to affect a sentence which would beconsistent with the fundamental principles of sentencing including denunciation, deterrence and rehabilitation. In this regard, I refer to Rv Peekeekoot, 2014 SKCA 97 (paras 57-58); R v Chanalquay, 2015 SKCA 141 (paras 36-38) [Chanalquay]; and R v Slippery, 2015SKCA 149 (paras 41-47).

As indicated, I recognize a sentencing range or starting point of three years given the robbery to which thisoffender has plead guilty. I am assisted by the thorough review of Judge Kalmakoff (as he then was) in R v Macri, 2012 SKPC 94, 2012 SKPC 094, particularly at paras 34 and 37: [34] The offences in this case involved robbery of clerks working at convenience stores. People in such positions are inherentlyvulnerable to robberies because of the nature of their employment, as they frequently work alone and late at night in businesses wherecash and other theft-worthy items are present.

The fact that these were convenience store robberies adds to the gravity of the offences. The use of a weapon adds to the gravity of the offences in this case, as does the fact that both robberies were planned. As such, in myview, the gravity of the offences is significant. [37] Having said that, the sentence cannot focus entirely on Mr. Macri. Given the serious nature of the offences he has committed,the sentence must give adequate attention to such principles as denunciation and general deterrence.

The Court of Appeal inSaskatchewan has repeatedly indicated that robberies, especially those involving vulnerable victims like convenience store clerks, mustbe treated severely, with an emphasis on denunciation, and sentences that send the message that such offences will not be tolerated (SeeR. v. Alexson (1991), (SK CA), 97 Sask. R. 77 (C.A.); R. v. Stonechild (1995), (SK CA), 128 Sask.R. 210 (C.A.); R. v. Severight (1996), (SK CA), 137 Sask. R. 306 (C.A.); R. v.

Kaiswatum, 2003 SKCA 57; R. v.Gordon, 2011 SKCA 130). [10] I must look to the individual circumstances of this offence and offender, as indicated by Justice Wagner in Lacasse, “thedetermination of a just sentence is a highly individualized exercise that goes beyond a pure mathematical calculation… everythingdepends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of the case” (para 58). [11] This is a grave offence which caused significant consequences to the victim, store clerk.

This type of violence requires cleardenunciation and deterrence as a primary consideration. A jail sentence is appropriate. [12] I am guided in my assessment of an appropriate sentence by Chanalquay where Chief Justice Richards said, in part, asfollows: [40] First, systemic and background factors. In Ipeelee, the Supreme Court said these factors may speak to the culpability of anAboriginal offender if they reveal something of his or her level of moral blameworthiness and, as a result, may affect the nature of anappropriate sentence (Ipeelee at para 73).

Systemic and background factors are, of course, not the only considerations which are relevantin determining an offender’s blameworthiness. The sorts of factors that normally come into play on this front remain relevant to anassessment of the culpability of an Aboriginal offender. The circumstances of such an offender “which could reasonably and justifiablyimpact on the sentence imposed” may speak to his or her moral culpability to an extent which would lead to a different sort of sentencethan what might normally be imposed for the same offence. But, there is no invariable rule on this front (Ipeelee at para 71).

Sentenceshave to be determined on a case-by-case basis taking into account all relevant considerations (Gladue at para 88). [41] The second and ultimately most important aspect of the Gladue framework that must be considered by a sentencing judge is thetypes of sanctions which might be appropriate. In this regard, and keeping in mind that the root purpose of s. 718.2(

e) is to address theoverrepresentation of Aboriginal offenders in Canadian jails, a sentencing judge must carefully consider available alternatives toincarceration. Programming specific to an Aboriginal community may be particularly significant in this regard. However, the absence ofprograms and treatment aimed directly at Aboriginal offenders does not eliminate a judge’s obligation to consider a restorative justiceapproach. Such things as other kinds of programming or sentencing alternatives available to all offenders may also be helpful in craftingan effective sanction.

These restorative-type aspects of a sentence will normally be brought into play by way of the terms of aconditional sentence or probation order.

[ 13 ] It is my view that there are systemic and background factors relating to this offender which must be considered in assessing her moral blameworthiness. She has experienced family breakdown and alcoholism at an early age. In a prior pre-sentence report dated August 12, 2014, relied on in this sentencing hearing, Tina Gardiner, Probation Officer, describes the Gladue factors experienced by this offender: Susan was raised in Sturgeon Lake First Nation by her paternal grandparents.

Although she feels her home environment was healthy and stable she is resentful about the lack of involvement by her “real parents.” Susan recalls visiting with her mother for short periods but would return home after a few days as she did not feel comfortable around her. Susan was about ten years old when she started acting out. She recalls visiting her mother in La Ronge when she had her first experience with alcohol and drugs. She feels that it was her mother’s lack of responsibility that led her to try drugs and adds her mother was also using alcohol and drugs at the time.

Susan has no involvement with her maternal extended family which resides at Lac La Ronge. The subject feels her inability to forgive is contributing to her struggle. Susan has had physical altercations with both her parents and believes if they stayed together that things would be better. She hasn’t spoken with her mother since May of 2014 and will occasionally see her father. According to Patricia Felix, Susan and her siblings bear resentment towards their mother for “leaving them.” Particia encourages Susan to forgive and to get acquainted with her maternal family members.

Susan reveals her siblings have spent some time visiting their mother in La Ronge. The relationship with their father is not healthy, adding he is an excessive drinker and is unavailable. [ 14 ] This background as a First Nations individual has contributed to the addiction to alcohol and drugs which this offender continues to experience. On February 14, 2015, the date of these offences, she was intoxicated and using marihuana. According to her counsel, which submissions I accept, shortly after February 14, 2015, she felt remorse.

She gave a statement to the police admitting her involvement and entered a guilty plea which reflects her remorse. [ 15 ] I have concluded that in the case of this offender a restorative approach is appropriate as part of an effective sanction. I conclude this as I find that the offender is remorseful and has insight in to her need for rehabilitation of her drug and alcohol addiction, has good family support from her grandparents, Patricia and A.J. Felix, who are leaders in their community as indicated in the pre- sentence report, as well as other family members.

There also appears from the pre-sentence report to be resources available in her community, the Sturgeon Lake First Nation, which she has accessed in the past and can access upon her release from jail. The offender’s reaction to the offence and the injuries to the victim are discussed in an update to the pre-sentence report dated January 15, 2016, as follows: In relation to the incident, Susan was out drinking with her peers. She was also under the influence of marijuana. Susan states she immediately felt “sick” following the incident and experienced a panic attack.

She was shocked and couldn’t believe what she had done. The subject’s use of alcohol and/or drugs increased following the incident, adding she used to forget what happened. The writer spoke with the victim, Mohammed Husain. Mr. Husain advises the wound to his right eye has not fully healed. His vision is blurry and he occasionally suffers from eye pain. Mohammed was informed by his doctor his vision would return to normal in time. Mohammed says the incident also left him afraid to work alone. He remains employed but has a second staff with him during his shifts. Mr.

Husain hopes this type of incident does not happen again, to anyone. He states “people shouldn’t have to worry about situations like this while at work, it’s not worth it”. The subject is remorseful for her behaviour. Susan accepts full responsibility for her actions and does not blame anyone. She understands her conduct is unacceptable. Susan has no issues with the Justice System and feels it is necessary to keep people on track. The subject has insight to her risk factors however she lacks adequate intervention strategies.

Susan states “[I] understand that [I] have an issue with alcohol but [I] don’t think I need treatment right now”. [ 16 ] A jail sentence followed by a period of probation will reflect the necessary deterrence and denunciation required by the gravity of the offence while providing intervention strategies for this offender given her background and particular circumstances. As a result, I sentence this offender, taking into account the principles in s. 718, 718.1 and 718.2, to the following sentence. Count one – eighteen months jail.

Count two – thirty days jail to be served concurrently. [ 17 ] This jail sentence is to be followed by an eighteen month Probation Order with the following conditions:

1. Report to a Probation Officer at 12 th Floor, 800 – Central Avenue, Prince Albert, Saskatchewan, ph. (306) 953-2835 (toll free 1-800-305-3888) within two working days upon your release and after that as told to do so by your officer or designate. 2. Live at a residence approved by your Probation Officer and not change that residence without the prior written permission of your Probation Officer or designate or the Court. 3. Not possess or consume alcohol. 4. Not possess or consume drugs that have not been prescribed for you by a medical doctor. 5.

Not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. 6. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your Probation Officer. 7. Participate in personal counselling as told to do so by your Probation Officer. [ 18 ] There will be an order pursuant to s. 109 that this offender is prohibited from possessing any firearms or ammunition for a period of ten years. In addition, there will be an order that she provide a sample of her DNA.

Finally, there will be an order on both charges that she pay the sum of $400.00 in surcharges on or before January 1, 2018. Dated this 23 rd day of March, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ____________________________ H.M. Harradence, J