Her Majesty the Queen - v. -, 2017 SKPC 082

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 082 Date: October 6, 2017 Information: 90117247 Location: Buffalo Narrows _____________________________________________________________________________ Between: Her Majesty the Queen - and - Philip Louis Laliberte Appearing: Andrew Clements and Heather Beyko For the Crown George Thurlow, Q.C. For the Accused SENTENCING DECISION M.

MARTINEZ , J Introduction [ 1 ] On December 6, 2016, I convicted the accused, Philip Laliberte, of attempting to rob Fidel Brochu on June 12, 2016, in Buffalo Narrows, Saskatchewan, and of breaching his undertaking by consuming alcohol. The accused requested that his sentencing be adjourned until after June 22, 2017, the date on which the trial of an earlier criminal offence he faced was scheduled to be heard in Meadow Lake, Saskatchewan. The Crown consented to Mr. Laliberte’s request.

[ 2 ] The latter trial could not be completed and is scheduled for continuation on April 26, 2018. For these reasons, on July 12, 2017, counsel gave me their sentencing submissions and I reserved my decision. The Attempted Robbery [ 3 ] The complainants, Fidel and Daniel Brochu, are from Montreal, Quebec. Fidel Brochu is in the business of buying wild mushrooms from pickers in northern Saskatchewan and selling the produce to customers in Quebec and elsewhere. [ 4 ] For several years, Fidel Brochu travelled to the Lac La Ronge area of Saskatchewan to buy mushrooms.

In 2016 he decided that it might be a good business decision to add the community of Buffalo Narrows to his buying trip because of the previous summer’s extensive forest fires in that area. His cousin, Daniel Brochu, accompanied him on his trip to Saskatchewan in 2016. [ 5 ] By happenstance, on June 12, 2016, the accused was hitchhiking on his way home to Buffalo Narrows when the Brochu cousins picked him up and gave him a lift into town. That evening the Brochus encountered the accused again.

It is this latter encounter that lead to the charges before the court. [ 6 ] Early in the evening of June 12, 2016, the accused and an older friend of his, Stuart Chartier, stopped by to watch Fidel and Daniel Brochu at work. The Brochus were trimming mushrooms at a table in the parking lot of the Freedom Centre in Buffalo Narrows. At first, the accused and his friend simply asked questions about what the Brochu cousins were doing, but then they started teasing Daniel Brochu about his accent. At this point, Fidel Brochu told them to go away and they did.

Regrettably, they did not stay away. [ 7 ] Upon their return, the accused and his friend continued pestering Fidel and Daniel Brochu. This time the accused’s pestering included grabbing at Fidel Brochu’s paring knife. Fidel Brochu told the accused to stop. In response, the accused gave Mr. Brochu a push and Mr. Brochu shouldered him away. Suddenly, Mr. Chartier, who was standing nearby, produced a machete and declared: “I have a knife!” [ 8 ] Upon seeing the machete, the Brochu cousins stood up, dropped their knives, and put their hands in the air to signal that they didn’t want any trouble. Mr.

Laliberte leaned in toward Fidel Brochu and demanded that Mr. Brochu give him his money. As it turns out, Fidel Brochu can look after himself. In response to Mr. Laliberte’s second demand for money, Mr. Brochu punched him in the head and knocked him to the ground. Fidel Brochu then ran into the Freedom Centre and asked that someone call the police. [ 9 ] R.C.M.P. Constable Aasen arrived within minutes. When she arrived at the Freedom Centre she saw a group of people yelling at each other. She recognized the accused and Mr. Chartier, and she saw two other men and a woman (none of whom she recognized).

The two unknown men were pointing excitedly at the two locals. The constable immediately separated Mr. Laliberte and Mr. Chartier from the group. After speaking to Fidel Brochu, she arrested the accused and Mr. Chartier for attempting to rob Fidel and Daniel Brochu. [ 10 ] At trial, Constable Aasen said that Mr. Chartier was obviously intoxicated but that Mr. Laliberte did not appear to be. However, she did note a slight odour of beverage alcohol on his breath and he admitted to her that he had drunk three beer. [ 11 ] The officer did not see Mr. Chartier with a machete in hand, nor did she see the weapon

nearby, nor was it found in the subsequent search of the area.

The Sentencing Submissions [ 12 ] The Crown submits that I should sentence the accused to a two to three year jail sentence for the attempted robbery, and that I should give him credit for his four months in pre-trial detention [ remand ]. [ 13 ] The accused submits that he should receive enhanced remand credit of six months, calculated at 1.5 times the actual time he spent in pre-trial custody, and that the sentence I impose should be “time served” followed by a lengthy probation period. [ 14 ] The Crown referred me to several cases in support of its submission.

Some of the cases are reported and others are summaries of Saskatchewan Court of Appeal sentencing appeal decisions which can be found in the Court’s online database. [ 15 ] Four of the cases are not relevant to my decision because those cases involved successful, as opposed to attempted, robberies: Iron, Cody Joseph , 2013 SKCA (SentDig) 11; Stonechild, C. , 2010 SKCA (SentDig) 24; Kirklon, L., 2015 SKCA 67 , 2015 SKCA (SentDig) 14; R v Rudolph , 2012 SKQB 442 . [ 16 ] I also find that one of the attempted robbery cases does not assist me. That case is R v Favel , 2009 SKQB 227 , 340 Sask R 147 [ Favel ] .

Unlike the case before me, Favel involves an attempted robbery where the perpetrator severely beat the victim leaving him with significant and permanent injuries. [ 17 ] The remaining cases cited by the Crown establish three things: (1) custodial sentences are the norm for attempted robberies, (2) the general range of sentence is from about 12 months to two years less a day, and (3) the length of the sentence largely depends upon the degree of violence used and whether a weapon was involved. [ 18 ] In R v McKay , 2010 SKCA 66 , 350 Sask R 279 [ McKay ] , the Court of Appeal allowed the Crown’s sentence appeal in the following circumstances in paragraph 3 of the decision: The offences were committed while the respondent was on bail awaiting trial on a charge of aggravated assault.

Conditions of bail required him to maintain a curfew of 9:00 p.m., abstain from alcohol and keep the peace. On the day in question, he violated his curfew, consumed alcohol and attempted the robbery of two young men, brothers, who were attempting to withdraw money from an automatic teller machine. The brothers were both mentally challenged. The respondent accosted one of them and demanded $100. The victim did not have money in his account and only a few cents in his pocket, which he offered to the respondent. The respondent did not take the change, but demanded more money.

He pushed the victim’s brother and punched the victim in the face. A passing motorist saw what was happening and intervened, holding the respondent until the police arrived to arrest him. [ 19 ] As the court noted, the only reason why the robbery was not successful was because the victims were “virtually penniless”. For this reason, the court held that the offender’s sentence should not be less than he would have received had he successfully extracted money from the vulnerable victims; see McKay at para 6 .

In the circumstances of this offence, and taking into account the 22-year-old offender’s prior criminal record, the court imposed a custodial sentence of two years less a day. [ 20 ] In Ewenin, TL , 2009 SKCA (SentDig) 21, the 22-year-old female offender met the 39- year-old male victim on an online dating site. One evening, while he was at her residence, she led him into the bathroom, where a man

was hiding. Her female 15-year-old cousin followed them into the bathroom. The three assailants pushed the victim into the bathtub and the 15-year-old hit him on the head with a mallet. They demanded money from the victim. As he did not have any cash on him, they drove him to an automated teller machine [ ATM ]. Upon arriving at an ATM, the victim escaped and contacted the police. [ 21 ] Ms. Ewenin’s criminal record included four prior theft and property-related charges, as well as two convictions for assault and one of carrying a concealed weapon.

The Court of Appeal upheld the two years less a day sentence imposed by the Provincial Court Judge. [ 22 ] In Cheekinew, CK , 2007 SKCA (SentDig) 24 [ Cheekinew ], the 19-year-old accused and his brother accosted a young man who was waiting at a bus stop. They asked the victim for cigarettes and money. When the victim said “No” the accused grabbed him and went through his pockets but didn’t find any money. The accused then punched the victim when he tried to board the bus.

The victim suffered a black eye and a chipped tooth. [ 23 ] The offender’s criminal record was short but it included one conviction for theft and two robbery convictions. The Court of Appeal upheld an 18 month jail sentence. [ 24 ] The accused in Figley, J.T. , 2003 SKCA (SentDig) 24, was 19 when he drove a getaway car for his co-accused who attempted to rob a grocery store while masked and brandishing a knife. In this case the Court of Appeal upheld a 13 month custodial sentence followed by one year probation.

The accused had a minor criminal record with no prior thefts or convictions for violent offences. [ 25 ] Despite arguing that Cheekinew is the case that is most relevant to my sentencing decision, the Crown submits that Mr. Laliberte should receive a sentence at, or even above, the upper end of the range because of the following aggravating factors: • His attempt to rob Mr. Brochu involved a weapon. • His was not a spontaneous robbery attempt, as he and Mr.

Chartier planned it together. • Before attempting to rob the Brochu cousins, the accused tried to disarm them. • The accused has a lengthy criminal record which includes past convictions for violent and theft-related offences. [ 26 ] Defence counsel did not cite any case law to support his submission that the appropriate sentence for his client is a six month jail sentence followed by probation. However, such a case exists. It is R v Rogers , 2011 SKPC 34 , 392 Sask R 35 [ Rogers ] . [ 27 ] The offender in Rogers called out to three young men who were walking through a residential park in the evening.

When they did not respond, he jumped in front of them, demanded their money, and told them that someone would be hurt if they didn’t comply. When one young man told him that he had no money, the accused punched him in the face. The second victim received the same treatment when he showed the accused that there was no money in his wallet. The accused recognized the third young man and sent him away. Fortunately, that individual returned quickly with a friend who knew the accused and who managed to settled things down. [ 28 ] Mr. Rogers was 27 at the time of the offence and age 29 when he was sentenced. He had

a prior record which included three assault convictions; two as a youth and one as an adult. Nearly 10 years had passed since his last conviction for common assault. The court did not mention the extent of the rest of the accused’s criminal record except to say that it also “shows convictions for, among many others, uttering threats, weapon possession, property offences and obstruction”; see Rogers at para 18 . [ 29 ] By the time of his sentencing, Mr. Rogers had turned himself and his life around.

He had strong support from his employer and had not been charged with any criminal offences during the more than two-year period since he attempted to rob the young men in the park.

Considering these and other factors, and after reviewing most of the cases that the Crown asked me to consider in the case before me, the sentencing judge imposed a six month jail sentence followed by one year of probation. [ 30 ] Defence counsel did submit that, in addition to the accused’s so-called Gladue factors, the following personal circumstances of his and the circumstances of the offence favour a rehabilitative rather than punitive sentence: • The attempted robbery was spontaneous and unplanned. • Although the accused has an extensive criminal record, his last conviction for an offence of violence or one involving stolen property was in 2009. • He has been on restrictive release conditions since October 16, 2016, and has not been charged with any subsequent criminal offences. • Since the date of this offence, the accused says that he quit drinking alcohol, has not consumed any illicit drugs, and attends church regularly. • He has applied to attend school to complete his elementary and then high school education. • He has strong support from his family, including his common-law spouse who is expecting their first child in February 2018.

The Applicable Sentencing Considerations [ 31 ] The objectives of criminal sentences are described in s. 718 of the Criminal Code . Those objectives include denouncing the unlawful conduct, deterring the offender and other persons from committing similar offences, assisting to rehabilitate the offender, providing reparations for the harm done by the offender’s conduct, promoting an offender’s sense of responsibility for the harm done by their unlawful conduct, and when necessary, imprisoning the offender in order to separate them from society.

It always is up to the sentencing judge to decide which of these objectives are most relevant to the sentence they impose in a given case. [ 32 ] A sentencing judge’s decision must be guided by the principles enumerated in ss. 718.1 and 718.2 of the Criminal Code , which state that the sentencing judge’s role is to determine a sentence that is appropriate in the circumstances of the offence, the offender, the victims, and the community.

Ultimately, the sentence must be proportionate to the gravity of the offence, the moral blameworthiness of the offender’s conduct, the personal circumstances of the offender, and the effect that the offender’s conduct had on the victims and the community. This overarching sentencing goal often is referred to as the “principle of proportionality”: R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433 [ Ipeelee ]

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justicesystem… Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moralblameworthiness of the offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate oneat the expense of the other. [Underlining added] R v Lacasse, 2015 SCC 64 at para 53, [2015] 3 SCR 1089 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides thata sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

A sentence willtherefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on anindividual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciledfor a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [Underlining added] [33] Because the accused self-identifies as Metis of Cree descent, his Indigenous ancestry is a relevant sentencing consideration. The reason for this is that s. 718.2(

e) of the Criminal Code mandates that a sentencing judge must pay“particular attention” to the circumstances of an offender of Indigenous descent, when considering “all available sanctions, other thanimprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community”. [34] This directive does not alter the basic principle of proportionality in sentencing.

What it does is to make clear that a sentencing judge must not sentence an Indigenous offender without considering their personal circumstances.The reason for this special attention to the personal circumstances of Indigenous offenders is that, in many cases, their personalbackgrounds are uniquely different from that of the majority of Canadians. [35] An Indigenous offender’s personal circumstances may differ from those of other Canadians because their personal circumstances often are affected and informed by the historical mistreatment and neglect suffered byCanada’s Indigenous people: R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC 385 [Gladue] [36]

Section 718.2(

e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that arereasonable in the circumstances for all offenders, “with particular attention to the circumstances of aboriginal offenders”. The broad roleof the provision is clear. As a general principle, s. 718.2(

e) applies to all offenders, and states that imprisonment should be the penalsanction of last resort.

Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and theoffender. [37] … the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it isagainst a general direction to consider “the circumstances” for all offenders, is that sentencing judges should pay particular attention tothe circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders.The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use ofimprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a lessappropriate or less useful sanction. [Emphasis in original] … [67] The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.

Yearsof dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and otherfactors contribute to a higher incidence of crime and incarceration…. [68] It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders aswell.

However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because manyaboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially

affected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. [36] In all cases involving an Indigenous offender, the sentencing judge must take judicial notice of the systemic and background factors affecting Canada’s Indigenous people in general.

In addition, the judge must consider all systemic and background factors peculiar to the individual being sentenced: Gladue [69] … While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. Ipeelee [60] … To be clear, courts must 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. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. [Italics in original] R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ] [69] The Supreme Court of Canada has very clearly said social and economic marginality and inequality wreaked on Aboriginal peoples by colonisation [sic] and systemic factors must be taken into account under s. 718.2 (

e) at sentencing…. [37] Where systemic and background factors have played a significant role in bringing an Indigenous offender before the court, the sentencing judge must consider whether these factors favour restorative or rehabilitative, rather than punitive, sentencing objectives: Gladue [69] … In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [ 38 ] However, a sentencing judge should not reflexively reduce an offender’s sentence simply because he or she happens to be of Indigenous descent: Gladue [78] In describing the effect of s. 718.2 (

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

Ipeelee [75]

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case…. … [83] Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.

This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [ 39 ] Several recent Saskatchewan Court of Appeal cases reinforce the principle that a sentencing judge’s responsibility remains the same no matter who is being sentenced. That responsibility is to consider all relevant factors when crafting an appropriate sentence.

In the context of an Indigenous offender this includes considering the systemic and background factors endemic to Canada’s Indigenous peoples, and those that are peculiar to the individual being sentenced. These factors may, but will not always, tilt the scales in favour of a less punitive sentence than might otherwise be imposed: R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 , per Richards CJS [36] … In very simplified terms, the fundamental dynamic underlying s. 718.2 (

e) when a trial judge sentences an Aboriginal offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2 (

e) means what it says: “all available sanctions other than imprisonment that are reasonable in the circumstance should be considered…”. [37] I observe as well that the analysis mandated by s. 718.2(e), as explained in Gladue and Ipeelee , is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoning which leads to a fit sentence ( Gladue at para 88 ).

It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide. [52] A sentencing judge should not simply stack up all of the Gladue -type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability. The required analysis is more demanding than that.

To determine the extent to which Gladue factors impact on an offender’s moral culpability, a sentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should then consider the extent to which the unique circumstances of the offender “bear on his or her culpability” ( Ipeelee at para 83 ) in the specific context of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but for circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue.

It might be that the Gladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. R v Slippery , 2015 SKCA 149 , 472 Sask R 181 per Richards CJS [47] That said, I agree with the Crown that a sentencing judge’s inquiry into “the degree of responsibility” of an Aboriginal offender, as per s. 718.1 of the Criminal Code , must not end with a consideration of the systemic and background factors noted in Gladue . Those factors may be relevant to the question of an offender’s responsibility but they are not determinative of it.

Rather, a sentencing judge must consider and weigh all factors that might bear on an offender’s degree or level of responsibility before reaching a conclusion on that point…. [Italics in original] Whitehead per Caldwell JA [39] While the broad systemic and background factors described in R v Gladue , on their own, do not necessarily dictate any particular sentence for an Aboriginal offender, they do provide a context for considering case-specific information about that offender. Although s. 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal… [61] … there is no table or chart of systemic and background factors where each factor equates to a corresponding pre-determined reduction in the sentence to be imposed on an Aboriginal offender for a particular crime. The search is a difficult one and the quantification of its results in terms of a fit sentence is all the more so. But, it must be done, nonetheless.

Applying the Sentencing Considerations Victim Impact Statement [ 40 ] Fidel Brochu filed a victim impact statement. In it, he says that the only impact the attempted robbery had on him is that he felt unsafe and insecure for a couple of days. Aggravating and Mitigating Factors [ 41 ] The most significant aggravating factor in this case is that, although Mr.

Laliberte did not use violence or directly threaten the use of violence, and although he did not wield a weapon, his attempt to rob Fidel Brochu involved a weapon. [ 42 ] In its sentencing submission, the Crown referred to additional aggravating factors: namely, that the attempt to rob the Brochus was pre-planned and that Mr. Laliberte first tried to disarm Fidel Brochu. These additional aggravating factors are inferences the Crown asks me to draw from the evidence.

While these are reasonable inferences one could draw from the evidence, I have a different opinion about what the relevant evidence reveals. [ 43 ] Fidel Broch said that the accused grabbed at his paring knife, however, from the way he related what happened, my impression was that the accused’s actions were a continuation of his earlier annoying conduct rather than an attempt to disarm Mr.

Brochu. [ 44 ] On the question of planning, it is vanishingly rare for anyone to attempt to rob someone in broad daylight, in a public place, and, in my experience, would-be robbers never hang around to argue with their intended victims when their attempted robbery is thwarted and they know that the police are on their way. These facts alone are not consistent with a planned robbery. [ 45 ] Further, in the accused’s statement to police, which the Crown entered in evidence as part of its case, Mr. Laliberte said that, after Mr. Brochu first shooed them away, he and Mr. Chartier returned to Mr.

Chartier’s home and drank one beer each. He said that Mr. Chartier left his home a minute or two before the accused did and that the accused found him back at the Freedom Centre’s parking lot. Although Mr. Brochu testified that the accused and his friend returned to the parking lot, he did not say that they arrived at exactly the same time, nor did either counsel ask him any questions about when, in relation to each other, the two men returned. For this reason, it is entirely possible that Mr. Chartier left his house before the accused did, and that the accused might not have known that, before leaving home, Mr.

Chartier hid a machete in his clothing. [ 46 ] Finally, it is not clear to me what Mr. Chartier’s intentions were when he brandished his machete. He may have intended to intimidate the Brochus.

He may have planned to rob them, but he didn’t say anything to them other than “I have a knife!” In the context of all of the evidence, my opinion is that his drunken intention may well have been to emulate the protagonist in the movie Crocodile Dundee , who, when confronted by a mugger wielding a switchblade knife, famously responded by laughing, producing his own much larger and more menacing knife, and declaring “That’s a knife!” [ 47 ] Ultimately, my conclusion is that the accused did not plan to rob Fidel and Daniel Brochu.

I find that his attempt to rob Fidel Brochu was a spontaneous and impulsive response to the opportunity that presented itself when his friend unexpectedly pulled out a machete and the Brochus dropped their small knives and put up their hands.

[ 48 ] For these reasons, in my opinion, the gravity of Mr. Laliberte’s attempted robbery sits at the low end of the spectrum for this particular offence. [ 49 ] However, his prior criminal record somewhat offsets the banality of his robbery attempt. [ 50 ] The accused’s prior criminal record as an adult begins in 2003 and ends in 2012. It includes 27 convictions. Eight of the convictions are for violent or theft-related offences. [ 51 ] Two of his convictions are for possessing property obtained by crime. In each case the value of the stolen property was under $5,000.00.

His sentences for these offences were probation for the first conviction and a six month conditional sentence order [ CSO ] in 2009 for the second. [ 52 ] Mr. Laliberte has four convictions for common assault, two for uttering threats, and one for pointing a firearm. For these offences, he received sentences ranging from fines to a six month jail sentence. The latter custodial sentence was for common assault in 2009. That sentence was concurrent to a 15 month jail sentence for drug trafficking. Gladue Factors [ 53 ] Defence counsel asked me to order a Pre-Sentence Report [ PSR ] for his client.

The accused himself made it clear that he wanted the report to address his Gladue factors. Unfortunately, because a PSR is not a true Gladue report, it does not address any of the historic and systemic factors that may have affected the accused’s Indigenous ancestors, and it devotes only eight short paragraphs to the relevant circumstances in his personal history. [ 54 ] The PSR reveals that Mr. Laliberte was born in Île-à-la-Crosse , Saskatchewan, in 1984, to Joan Laliberte and Philip Lafleur. He has several siblings, only two of whom are Philip Lafleur’s children.

Aside from noting that both of his parents attended residential schools, the PSR tells me little about them and nothing about their family backgrounds; however, I take judicial notice of the impact colonialism and residential schools had on them and on their ancestors. [ 55 ] According to the PSR, Mr. Laliberte spent most of the first five years of his life being cared for by members of his extended family in Beauval, Saskatchewan. The report also mentions that, at age three, he was apprehended by the Department of Social Services.

The report does not say how long he was in the Department’s care. [ 56 ] The accused’s mother began caring for him on what might be called a full-time basis when he was about five or six years old. His father never was involved in his upbringing. [ 57 ] In 1993, Joan Laliberte, her new spouse, and her son, Philip, moved to Meadow Lake, Saskatchewan. Sadly, her spouse died of cancer in 1994. Following his death, Joan Laliberte and her son relocated to Edmonton, Alberta. [ 58 ] Ms. Laliberte struggled with alcohol and drug abuse. While living in Edmonton, Mr.

Laliberte often saw his mother and her friends consuming alcohol and drugs. He says that sometimes his mother physically and emotionally abused him. The accused also alleges that one of his mother’s male friends sexually abused him.

[ 59 ] During his years living in Edmonton, Mr. Laliberte had little contact with his siblings or with the rest of his extended family in Saskatchewan. From the age of 10 until he was 14-years-old, Mr. Laliberte occasionally ran away from home to get away from his mother and her alcohol and drug abusing friends. Sometimes he would live on the streets or go to a local youth shelter until things “settled down”. The PSR states that Mr.

Laliberte may have been apprehended by Alberta’s Department of Social Services on more than one occasion during this period, but it does not provide any details about this, other than to say that his mother does not “recall involvement with child welfare in Edmonton.” [ 60 ] Mr. Laliberte told the report-writer that he remembers being picked on in school because of his ancestry. He believes he also experienced racism from some of his teachers. The accused says that this overt racism made him uncomfortable and scared sometimes, and that he felt “dumb” when he was in school.

He claims this is why he avoided school whenever he could. As a result, the last grade the accused successfully completed was grade eight at the Rites of Passage school in Edmonton. [ 61 ] The accused and his mother returned to Meadow Lake in 2000. The accused says that, after their return to Meadow Lake, he was put into foster homes several times. Once again, his mother could not confirm this aspect of her son’s story. [ 62 ] As often is the case with young persons who are exposed to alcohol and physical abuse, the accused began consuming alcohol at a very young age.

Specifically, he says that he started drinking alcohol at the age of 11 or 12. The accused recognizes that alcohol abuse has been a significant factor in most of his criminal offences. [ 63 ] It light of his mother’s history of alcohol abuse, it is not surprising that Mr. Laliberte has been diagnosed as suffering from Fetal Alcohol Spectrum Disorder. Considering his chaotic childhood, it also is not surprising that he experienced occasional bouts of depression. In fact, his mother told the PSR writer that her son has had suicidal thoughts in the past, but he denies this.

Applying the Relevant Sentencing Principles and Considerations [ 64 ] The primary sentencing objectives in attempted robbery cases are denunciation, and general and specific deterrence. This is the reason why custodial sentences are the norm. [ 65 ] As I noted earlier, Mr. Laliberte’s attempted robbery is less serious than most. For this reason, if the option was available to me, I would consider imposing a conditional sentence order – a jail sentence served in the community.

As that option is not available, the circumstances of the offence call for a jail sentence at, or below, the lower end of the sentencing range. On the other hand, despite the seven year gap between this offence and the accused’s previous convictions for violent or theft-related offences, his lengthy criminal record calls for a sterner response. However, there are other factors I must consider. [ 66 ] The first of the remaining factors is that the accused is remorseful – after hearing Mr. Brochu’s testimony, the accused personally apologized to him during an adjournment. [ 67 ] The second is the fact that Mr.

Laliberte has managed to stay out of trouble since his release from custody. [ 68 ] Finally, and most importantly, there are the Gladue factors I described earlier.

[ 69 ] In my opinion, Mr. Laliberte’s personal circumstances as an Indigenous person not only provide insight into, and some context for, his criminal behaviour, they also serve to diminish his culpability for his impulsive and foolish attempt to rob Fidel Brochu. It is these latter Gladue factors that, more than any other, favour a sentence targeted at rehabilitation. The Fit Sentence [ 70 ] While an offender’s remorse and post-offence good behavior over a lengthy period may serve to reduce the sentence imposed by the court (see R v Noname , 2017 SKCA 21 ), Mr.

Laliberte’s apparent remorse and several months of post-offence good conduct are not enough to tilt the scales. However, his remorse and post-offence conduct give me some hope that, at the age of 33, he may be ready and able to abide by the rules of, and benefit from, a sentence aimed at helping him. [ 71 ] Keeping in mind the sentencing objectives and the applicable sentencing principles, the fit sentence for this particular attempted robbery and for this particular offender is a nine month custodial sentence.

Based on the accused’s previous history of disobeying court-ordered conditions, the fit sentence for his breach of undertaking is a concurrent three month custodial sentence. I grant him enhanced credit for remand time and deduct six months from his custodial sentence. As such, the accused’s jail sentence from this point forward is three months. [ 72 ] After Mr. Laliberte serves the remainder of his custodial sentence, he will be on probation for a period of 12 months.

Aside from the mandatory conditions, the conditions of his probation will be that he: 1) must report to the probation office, in Buffalo Narrows, Saskatchewan, within two business days after he is released from custody and after that he must report whenever he is told to do so by his probation officer, 2) must attend for assessment and treatment or counselling for addictions, and for personal counselling, as told to do so by his probation officer, 3) must apply to attend school, and if he is accepted for enrolment, regularly attend school and diligently complete all of his school assignments, and when he is not attending school he must seek and maintain employment, and 4) he may not possess any firearms or ammunition, or any other weapons as described in the Criminal Code . [ 73 ] Finally, I impose the following mandatory orders: • A 10 year firearms and other specified weapons prohibition under s. 109 of the Criminal Code • Pursuant to s. 487.051(1) of the Criminal Code , an order in Form 5.03 authorizing the taking from the accused the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis.

__________________________ M. Martinez, J.