R. v. Meechas, 2012 MBPC 53

CITATION: R. v. Meechas , 2012 MBPC 53 Date: 2012 06 29 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Peter Edgett ) for the Crown ) and ) ) ) Tristan Meechas ) James Wood ) for the Accused ) ) ) ) Reasons for Decision delivered: ) June 29, 2012 M. J. SMITH P.J. INTRODUCTION [ 1 ] What is the appropriate sentence for Tristan Meechas, a young Aboriginal man from Swan Lake First Nation (Gaabiskiigamg) who pled guilty to a street level robbery committed six months after his 18 th birthday? That is the issue before me. He has no prior record, youth or adult.

In the previous year while on bail there has been no further involvement with the criminal justice system. The Pre- Sentence Report (PSR) is positive and he has been assessed at a low risk to reoffend. [ 2 ] The defence seeks a community based disposition, arguing for a two year suspended sentence with probation and community service, relying on R. v. Kunzig , 2011 MBPC 81 . The Crown seeks a significant jail term in a provincial institution. When pressed, the Crown acknowledged that mitigating factors were such that a nine month sentence would be appropriate.

The Crown submitted that Meechas is not eligible for a conditional sentencing order (CSO), arguing that the offence is a serious personal injury offence (SPIO). SENTENCING PRINCIPLES [ 3 ] The fundamental purpose and principles of sentencing are set out in s. 718 , 718.1 and 718.2 of the Criminal Code of Canada . [ 4 ] The Court must strive to fashion a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

This requires as a first step a careful consideration of the circumstances of the offence and the offender. [ 5 ] There are no mathematical formulas that determine a given sentence. That is because the circumstances of offences and of offenders are unique.

Instead, always keeping proportionality in sight, the Court is both entrusted and required to determine the weight that should be given to the various potential objectives of sentencing, set out in s. 718 , in the particular circumstances. [ 6 ] In this case, as will be discussed further, because of the nature of the offence, the youth of the offender and his Aboriginal status, it is evident that the sentence should contain elements of both deterrence and rehabilitation, with restorative justice objectives in play if they can be accommodated. [ 7 ] Before finally determining any sentence, the Court must also take into account aggravating and mitigating factors.

Section

718.2 also directs the Court to impose a sentence that respects certain other applicable principles. Two of them are also relevant:

(1) The parity principle – the sentence should be similar to sentences imposed on similar offences for similar offenders in similarcircumstances;

(2) The least restrictive alternative principle – an offender should not be deprived of liberty if less restrictive sanctions may beappropriate in the circumstances. [8] And finally, Parliament, in s. 718.2(

e) has directed judges, in sentencing, to consider: “all available sanctions other thanimprisonment that are reasonable in the circumstances . . with particular attention to the circumstances of Aboriginal offenders.” Thisprinciple is an important consideration in this case and will be discussed next. DISCUSSION OF GLADUE [9] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at paras 33 and 34, the Supreme Court of Canada indicatedthat s. 718.2(

e) is remedial in purpose and requires judges to adopt a distinct approach in sentencing Aboriginal persons: 33 In our view, s. 718.2(

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of theprovision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencingjudges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and propersentence in the particular case. It should be said that the words of s. 718.2(

e) do not alter the fundamental duty of the sentencing judge toimpose a sentence that is fit for the offence and the offender... ...What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentencefor an aboriginal offender... [10] The Court emphasized the provision must be actualized in everyday sentencing decisions: 34 In his submissions before this Court, counsel for the appellant expressed the fear that s. 718.2(

e) might come to be interpreted andapplied in a manner which would have no real effect upon the day-to-day practice of sentencing aboriginal offenders in Canada. In lightof the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system, we do not consider this fear to beunreasonable. In our view, s. 718.2(

e) creates a judicial duty to give its remedial purpose real force. [11] Continuing their analysis, the Supreme Court emphasized firstly that the clause means that “prison is to be used only where noother sanction or combination of sanctions is appropriate to the offence and the offender.” This statement applies to all offenders,including Aboriginal offenders. (see para 36) [12] Second, the provision requires the courts to pay heed to the unique circumstances of Aboriginal offenders, and in effect to focus,where appropriate, on restorative justice goals of restitution and reintegration to the community.

The Court adopted the suggestion of therespondent in his factum that s. 718.2(e) “provides the necessary flexibility and authority for sentencing judges to resort to the restorativemodel of justice in sentencing Aboriginal offenders and to reduce the imposition of jail sentences where to do so would not sacrifice thetraditional goals of sentencing.” (para 50) [13] The Supreme Court held, after considering the legislative history, that the provision was designed to reduce overincarceration ofAboriginal people in our prisons.

In looking at the disproportionate rate of Aboriginal incarceration compared with populationdemographics, the Supreme Court (at para 58) expressed particular concerns about this province, noting that: The situation continues to be particularly worrisome in Manitoba, where in 1995-96 they made up 55 percent of admissions to provincialcorrectional facilities. . . [14] The Supreme Court referred repeatedly to particular problems in the prairie provinces. For example, they quoted extensivelyfrom M. Jackson, “Locking up Natives in Canada”.

After discussing the Federal system, Jackson (as quoted by the Supreme Court inGladue, para 60) observed: ... Bad as this situation is within the federal system, it is even worse in a number of the western provincial correctional systems. . . . A studyreviewing admissions to Saskatchewan's correctional system in 1976-77 appropriately titled "Locking Up Indians in Saskatchewan",contains findings that should shock the conscience of everyone in Canada.

In comparison to male non-natives, male treaty Indians were25 times more likely to be admitted to a provincial correctional centre while non-status Indians or Métis were 8 times more likely to beadmitted. If only the population over fifteen years of age is considered (the population eligible to be admitted to provincial correctionalcentres in Saskatchewan), then male treaty Indians were 37 times more likely to be admitted, while male non-status Indians were 12times more likely to be admitted.

For women the figures are even more extreme: a treaty Indian woman was 131 times more likely to beadmitted and a non-status or Métis woman 28 times more likely than a non-native. The Saskatchewan study brings home the implications of its findings by indicating that a treaty Indian boy turning 16 in 1976 had a 70%chance of at least one stay in prison by the age of 25 (that age range being the one with the highest risk of imprisonment). Thecorresponding figure for non-status or Métis was 34%. For a non-native Saskatchewan boy the figure was 8%.

Put another way, thismeans that in Saskatchewan, prison has become for young native men, the promise of a just society which high school and collegerepresent for the rest of us. Placed in an historical context, the prison has become for many young native people the contemporaryequivalent of what the Indian residential school represented for their parents. [Emphasis added; footnotes omitted.] (underline mine) [15] Canadian society grossly underestimated the serious consequences of residential schools.

Only now with the work of the Truthand Reconciliation Commission is the true devastating and long term impact of that policy beginning to be understood. The long term

negative implications of widespread incarceration of young Aboriginal males, including many (such as Meechas) who represent a low risk to our communities may, likewise, be presently underestimated. [ 16 ] The Supreme Court also (at para 63) referred to the conclusions of the Manitoba Justice Inquiry: “To the same effect, the Aboriginal Justice Inquiry of Manitoba described the justice system in Manitoba as having failed aboriginal people on a "massive scale", referring particularly to the substantially different cultural values and experiences of aboriginal people: The Justice System and Aboriginal People, supra, at pp. 1 and 86. [ 17 ] The Supreme Court concluded at para 64: The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. [ 18 ] The Court emphasized the role of sentencing judges in evaluating the effectiveness of imprisonment in meeting goals of deterrence and denunciation in ways meaningful to the offender’s community: Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. (para 65) ... ... 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. (para 69) [ 19 ] Recently, in R. v. Ipeelee , 2012 SCC 13 the Supreme Court of Canada reaffirmed its decision in Gladue on the importance of s. 718.2 (e): The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. [ 20 ] Again noting the over representation of Aboriginal persons in Canadian prisons (see paras 56-58), the Supreme Court in Ipeelee was critical of some Courts’ apparent hesitation in applying s. 718.2 (e). The Court observed that: Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v.

Laliberte , 2000 SKCA 27 , 189 Sask. R. 190 ). 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. (para 60) [ 21 ] The Supreme Court emphasized that taking account of s. 718.2 (

e) is not optional, but fundamental in sentencing Aboriginal offenders. Again that provision states: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 22 ] It is thus imperative that I consider whether there are sanctions other than imprisonment that are reasonable in this case. Before doing so, I will examine the circumstances of the offender and the offence. CIRCUMSTANCES OF THE OFFENDER [ 23 ] Tristan Meechas was born November 6, 1992 and is now 19 years old. At the time of the offence on May 22, 2012, he was 18 years old.

His parents are Norma Soldier, who was 18 years old when she gave birth to him, and Lorne Meechas. When Meechas was around four years of age, his grandmother “kicked his father out” as he was not working. His mother was attending Yellowquill College in Portage la Prairie at that time. He has not had much contact with his father over the years. [ 24 ] Meechas grew up in Swan Lake First Nation with his mother and grandmother. He has lived most of his life in Swan Lake First Nation with his grandmother.

Not surprisingly, the Gladue component of the Pre-Sentence Report (PSR) documented the colonization, land displacement, and disruption of traditional ways the First Nation members of that community endured. [ 25 ] Returning to Meechas’ background, he has spent some time in Winnipeg and some time in Wabowden, Manitoba, when his mother found employment in these communities. He presently lives with his grandmother, Hazel Soldier, a residential schools survivor, on the Swan Lake First Nation. She is single and on social assistance and has always lived on that First Nation.

She has been the major caregiver in his life. As an adult, Meechas is eligible for social assistance and receives the modest sum of $220.00 a month. He uses these funds for clothes, shoes and other personal needs. [ 26 ] There were no issues of substance abuse or domestic violence with his grandmother. There has been no involvement with Child and Family Services. [ 27 ] Hazel Soldier described her grandson as quiet and generally listening and following her direction, being helpful around home and dealing with the tasks needed to run the household.

She did have some concerns that at times he could be influenced by others. She

is happy with his attendance and attitude at Treherne Collegiate. [ 28 ] Meechas likes to go outside and cut down trees and has built a tree-house by himself. He has a goal of working in the field of construction. He likes to ride his bike around the Reserve visiting people. [ 29 ] According to the Probation Officer who authored the PSR, most of his friends appear to be non-criminally oriented. The youth involved in the matter, B.M., was described as a criminal friend that he plans to stay away from.

There has been no contact between the two of them since the offence. [ 30 ] Although there has been some involvement with alcohol and marijuana, it appears that Meechas does not have a significant problem with those substances and respects his grandmother’s prohibition of alcohol and drugs in her home. [ 31 ] The Probation Officer noted that collateral reports support Meechas’ contention that he generally gets along well with people and does not argue with anyone.

According to the subject’s grandmother, Meechas is a good person “who probably went along with the guys he was with at the time of the offence.” [ 32 ] Despite her residential school background, it appears Meechas’ grandmother is connected to traditional Ojibway spiritual and community practices and has involved her grandson in those as well. She has encouraged his participation in sweat lodges and powwows. She reported that after the offence she set up a ‘Shake Tent Ceremony’ for him in which he participated. Regrettably the PSR did not elaborate on that ritual.

Apparently reliable internet sources indicate that a specially constructed tent structure is used, and that the rite is of long duration in the Ojibway culture. It was described by Christopher Vecsoy in “Traditional Ojibwa Religion and Its Historical Changes” Vol. 152 (ebook) pp. 103 et seq as “an institutional means for obtaining the help of different classes of Spiritual entities by invoking their presence and communicating human desires to them.” Among other purposes it is used to find solutions to individual problems.

Fostering pride and connection with his Aboriginal heritage will assist Meechas to stay on a pro-social path and he is fortunate to have his grandmother’s support in that journey. [ 33 ] Both his grandmother and Meechas’ mother tried to provide appropriate supervision and guidance during his formative years and for the most part, they have been successful in supporting him in a positive lifestyle. [ 34 ] The Probation Officer concluded that Meechas does not have any indications of an anti-social pattern or views.

He pointed out that Meechas is enrolled in high school with good attendance (confirmed with the Principal) and is motivated to continue his education. [ 35 ] The Probation Officer observed that “despite many negative influences from peers and his Community, the subject has remained relatively uninvolved in crime until the current offence. He has a positive support system that seems to be working for him. He seems to be respecting his grandmother’s supervision and direction.” The Probation Officer concluded that despite his age, he impressed as “being more of a follower than a leader.

He seems to be swayed depending on who he is associating with at that time.” [ 36 ] In conclusion, the author of the PSR rated Meechas as a low risk to reoffend, particularly if he continues to respect his grandmother’s supervision. To the extent there are risk factors, they are identified as association with criminal peers and his poor decision making at the time of the offence. Although alcohol and drugs have not been a significant factor, the Probation Officer recommended an assessment and treatment if required.

The Probation Officer concluded that this offender was a suitable candidate for probation supervision and suggested a number of conditions. CIRCUMSTANCES AND BACKGROUND OF THE OFFENCE [ 37 ] The offence occurred when Meechas was in Winnipeg for the 2011 May long weekend visiting his mother and other relatives. The Crown outlined the circumstances of the offence as follows: On May the 22nd, 2011, the accused Tristan Meechas and a youth co-accused, who was 15 years old at the time, were present in the area of Whytewold Road and Bruce Avenue in the city of Winnipeg at approximately 11:30 at night. . . . Mr.

Meechas and his co-accused were in the company of a few other young men. Mr. Meechas and his co-accused, while in this area, observed Ethan Burke, who was then 15 years old, and David Friesen, who was 16 years old, and those two individuals were walking with a third individual, a teenage female. Mr. Meechas nor his co-accused knew any of the members in this other group. . . . the two groups were perfect strangers. . . . And [at] this stage Mr. Meechas and his co-accused decide that they are going to rob the two males. This was a plan that they came up with, it appears to be, on the spur of the moment. Mr.

Meechas and his co-accused then began to chase Mr. Burke and Mr. Friesen causing them to run in fear. The, the (sic) youth co-accused caught up with Mr. Burke and attempted to punch him in the face after calling him a bitch. Mr. Burke was able to deflect the punch and then made good on his escape. The youth co-accused stopped his pursuit after he lost his shoe. Right after the punch was thrown by the youth co-accused, Mr. Meechas caught up with Mr. Friesen and stated to him: Give me your fucking money. According to Mr.

Meechas' statement, this happened after the punch was thrown. [ 38 ] The Crown was unable to provide any information about the proximity of Meechas to the encounter between Burke and the youth, except to say they were “within eyesight” of each other. [ 39 ] As indicated, Meechas caught up to 16 year old David Friesen and stated to him “Give me your fucking money” at which point Friesen threw his IPOD on the ground and ran off with Meechas chasing for a very brief time and then abandoning the chase.

These are the essential facts of the robbery of Friesen to which Meechas plead guilty. [ 40 ] No violence or attempted violence was used by Meechas. Neither Meechas (nor the youth) displayed any weapons, nor is it alleged that they were armed. Later that same night the police entered into an investigation and arrested Meechas and the youth. The

IPOD was recovered at the time of the arrest. Both Meechas and the youth were cooperative with the police and gave statements. [ 41 ] Young Meechas did not delay expressing his remorse. While in police custody, he penned a letter of apology, read in by the Crown and filed as an exhibit.

He stated: I am sorry for what happened last night with the scareing (sic.) and I hope that nothing like that would happen again, and sorry for running after you and that I scared you and had your Ipod and I hope you get it back and I feel really stupid for doing something like that to people your age, and once again I am sorry for doing something like that to you people I thought that nothing was going to happen and now I wish that nothing happened. I’m sorry. ANALYSIS AND DECISION A.

The Issue of Whether Meechas was a Party to the Robbery of Burke and Its Significance. [ 42 ] The Crown continually referred to Meechas and the youth as “co-accused”. That term is not appropriate except in the non technical sense. To be co-accused the two must be parties or principals in the same offence. To be a party there must be evidence that an individual aided or assisted or encouraged the co-accused to commit the offence.

Being “within eyesight” is not sufficient to make one a party. [ 43 ] Significantly, in my view, and presumably based on the investigation they conducted, the police never charged Meechas with robbing young Ethan Burke. The sole count on the information, to which Meechas plead guilty, sworn by Officer I. Morgan is: That TRISTAN MEECHAS on or about the 22 nd day of May in the year 2011 at the City of Winnipeg in the Province of Manitoba did rob DAVID RUSSELL FRIESEN of an IPOD and did thereby commit robbery contrary to

Section 344 (

b) of the Criminal Code of Canada . [ 44 ] As noted by the Crown, in the course of robbing Burke, the youth attempted unsuccessfully to punch Burke. Burke dodged the attempted punch and ran off. [ 45 ] By contrast, the same officer, I. Morgan, presumably had reasonable and probable grounds to charge the youth with both robberies, specifically alleging the assault as a component of the offence committed by the youth against Ethan Burke. Of course, because one was a youth, they could not be jointly charged.

That youth information states: (1) that [B.M.M.] a young person within the meaning of the Youth Criminal Justice Act on or about the 22 nd day of May in the year 2011 at the City of WINNIPEG in the Province of Manitoba did assault ETHAN BURKE with intent to steal from him contrary to

Section 344 (

b) of the Criminal Code of Canada . (2) that [B.M.M.] a young person within the meaning of the Youth Criminal Justice Act on or about the 22 nd day of May in the year 2011 at the City of WINNIPEG in the Province of Manitoba did rob DAVID RUSSELL FRIESEN of an IPOD and did thereby commit robbery contrary to

Section 344 (

b) of the Criminal Code of Canada . [ 46 ] The defence agreed that the Crown could read in all the facts related to the accused youth and Meechas. That recitation is understandable as the background and context of the offence Meechas committed. Without objection, the Crown filed a copy of Ethan Burke’s brief victim impact statement, during which he indicated no financial loss but that “[I] am a little more worried when out after dark.

Am more suspicious of other people.” The victim of the robbery count to which Meechas plead guilty, David Friesen, chose not to file a victim impact statement even though given an opportunity. As noted above, his IPOD was recovered and presumably returned to him. [ 47 ] In my view the Crown’s approach to the case conflated two separate robbery offences as if Meechas could be held responsible for both and further, should be sentenced on the basis that he was a party to the robbery offence committed by the youth against Ethan Burke in addition to the robbery of Friesen.

Yet all we know about the involvement of Meechas in the Burke robbery is that when the youth accused confronted Burke and attempted to throw the punch Meechas was “within eyesight”. The defence agrees only that Meechas was “within eyesight” of the encounter. [ 48 ] Even more significant is the fact that Meechas was never charged with the Burke robbery, a fortiori he never pled guilty to any role in that offence, nor does his apology letter appear to suggest any involvement with that other victim.

The plea enquiry which would have been done at the time the PSR was ordered would have accepted the plea to the robbery offence involving Friesen only. [ 49 ] The fact that defence agreed that the facts that led up to that robbery could be read in does not entitle me to sentence Meechas for an offence he has not admitted to committing. At most it could be said that it was aggravating that he went along with the youth in deciding, albeit on the spur of the moment, that each would rob one of the youths. His victim may or may not have seen that the youth attempted to land a punch on the other victim.

If so, two criminals committing crimes in some proximity are no doubt more frightening than one. [ 50 ] As noted, the Crown Attorney argued in effect that I should sentence Meechas as a party to the offence committed by the youth accused and assess his moral blameworthiness and culpability in light of that as well as the Friesen encounter.

Not only that, he submitted that because the offence of the youth involved the use of violence against Burke (the attempted punch) Meechas is disentitled to any consideration of a conditional sentence because that offence is a serious personal injury offence (SPIO). [ 51 ] The Crown Attorney submitted that the attempted punch by Burke was a use or attempted use of violence within the meaning of the definition of SPIO in s. 752 (a conclusion with which I agree; see my analysis in R. v. Kotelko, 2011 MBPC 76 at paras 113-158 and especially at 143).

The exercise is somewhat theoretical vis a vis the youth as the conditional sentence regime, including the exclusionary provision dealing with SPIOs, does not apply to youths. Nonetheless the Crown argued, relying on R. v. Simpson, 2012 SKPC 18

, 2012 SKPC 018, that if I accept that the robbery of Burke involved the use of violence by the youth, I must conclude thatMeechas too used violence excluding him as a candidate for a CSO. He explained: “when one’s a party [to violence], they’ll be held to the same standard as the principal, that it does not make a difference if the party wasthe one that threw, threw the punch or actually engaged in the violence, they’ll be excluded if the principal’s excluded.” (Transcript p.10) [52] In Simpson however, both Simpson and the principal plead guilty to the same offence involving the same two victims.

It wason that basis that the Court said he ought to be considered no differently than the principal offender. On the assumption, withoutdeciding, that Simpson is correct, its holding has no application to this case. (Ultimately that Court found that the principal had not usedor attempted to use violence; at most a threat was involved and threats do not constitute the use of or attempted use of violence.

Thus theapplication for the long term offender assessment which also requires a finding that a SPIO has been committed was denied.) [53] With respect, for the reasons outlined above, based on the facts before the Court, what occurred in this case was that twoindividuals decided on the spur of the moment that they would commit robberies. Each then chose a victim and robbed that person. Itseems clear that they each committed a robbery of their own as principals; certainly Meechas has admitted he robbed young Friesen. [54] On the case as presented, there were two separate robberies.

Whether the youth was also a party to the robbery Meechascommitted I do not know as his matters have not been dealt with, as he was at warrant status when these proceedings were heard. [55] Meechas did not use or attempt to use violence when he robbed young Friesen. Therefore it was not a SPIO and he would not bedisentitled to consideration for a CSO if a jail sentence were otherwise appropriate. (There was no other basis upon which it was arguedMeechas committed an SPIO.) [56] The mode of the Friesen robbery was unspecified in the Information.

The plea to robbery in fact is proper in this case only if (asI presume) it is based on the combination of the definition of assault in s. 265(1)(

b) of the Criminal Code and s. 343(c): 265.

(1) A person commits an assault when (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; 343. Every one commits robbery who (

c) assaults any person with intent to steal from him; or [57] In this case, the body language, the words spoken by Meechas, the victim dropping his IPOD and running with Meechas inpursuit, would amount to a threat to apply force, which Friesen could reasonably believe Meechas had the ability to carry out. As suchthis conduct amounted to an assault of Friesen with intent to steal from him, that is, a robbery. B.

Is Jail Necessary for All but Rare or Exceptional Robbery Offences? [58] The Crown argued that a series of Alberta cases, which he urged that I follow, indicate that street level muggings by individualswith no prior record merit a jail sentence of between 12 and 18 months. R. v. Carter, [1992] ABCA 190; R. v. Nylund, [1991] ABCA346; R. v. Saeed, [2004] ABCA 384. The Crown also drew my attention to R. v.

Porter, [1996] CanLII 2990 (BCCA), and R. v.Connors, [2010] NSPC 63. [59] In this case, acknowledging the youth of the offender and his positive PSR, the Crown moderated its position concerning a 12-18 month range, and sought a nine month jail sentence. I commend the Crown for striving to tailor a submission to the particularoffender before the Court. [60] Concerning Porter, that decision merely refers to a series of robbery cases which I find are distinguishable on the variedcircumstances of the offence or the offenders.

There are no general statements of principle that assist; the decision is best understood asupholding a discretionary sentencing decision of the judge at first instance. Moreoever, this 1996 case does not touch on s. 718.2(e),which was only enacted in 1995. [61] In the more recent Connors decision, a young Aboriginal woman, with no record, was sentence to two years for a robbery thatwas described by the Nova Scotia sentencing judge as “clearly a planned action with all five [offenders] acting in concert”. One of thevictims was struck in the face; both were forcibly restrained.

The case is clearly distinguishable on the facts. [62] With respect, for the reasons set out below at paras 65-73, I also disagree with the analytical approach taken by the sentencingjudge in Connors. He appears to have begun with the presumption that robbery offences usually attract a federal term of imprisonment(para 15), and then considered only if he should depart from that norm.

In addition, although the offender was noted to be Aboriginal,there was no detailed discussion of Gladue factors, which I consider myself bound to undertake in this case. [63] As to the proposed range set out by the Alberta Appellate cases, the Crown was unable to provide Manitoba authoritiesreferring to such a range. In any event, even where custodial ranges have been expressed by appellate authorities, the Supreme Court ofCanada has reminded courts that ranges are not grids to be slavishly followed but only guidelines. An individualized approach tosentencing should be followed in every case. See R. v.

Nasogaluak, 2010 SCC 6 at para 44. [64] The defence argued in favour of a suspended sentence, relying on a decision of mine in R. v. Kunzig, 2011 MBPC 81. There Isentenced Kunzig (also 18 at the time of the offence) to a suspended sentence and probation with restorative features for participating ina mugging of younger teens. No appeal was taken from that recent decision.

[ 65 ] As the Crown pointed out, Kunzig observed that suspended sentences for robbery were rare. (see paras 60 and 65) The Crown submits that this is not such a case and that jail is the norm and should be imposed here. [ 66 ] On reflection it seems to me that robbery sentences must be determined only in accordance with the fundamental sentencing principle of proportionality and the “fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions.” ( see R. v.

Ipeelee (M.) , 2012 SCC 13 at para. 37 ) This is because robbery offences themselves can span such a vast range of conduct from a “grab and run” purse snatching or a bully relieving a teen of a school lunch, all the way up to planned and premeditated bank robberies, or violent and terrifying convenience store robberies. The moral blameworthiness of offenders likewise covers a vast range, and no two offenders are alike. [ 67 ] Manslaughter sentences can range from suspended sentences to life imprisonment. In appropriate cases, robbery sentences extend to double digits.

In other cases, because of the facts of the offence, diminished moral blameworthiness of the offender and the mitigating circumstances, including those related to s. 718.2 (e), the appropriate sentence for robbery, as with some manslaughter cases, may indeed be a community based disposition through a suspended sentence, or through fines and probation. (See R. v. Carver, [1980] M.J. No. 257 (C.A.) ; R. v. Ramsey, [1985] M.J. No. 417 (C.A.) and R. v. Bartlett, [1961] M.J.

No. 2 (C.A.) ) [ 68 ] From time to time cases (including some of my own decisions) have used such terms as “exceptional” or “rare” in reference to when a non-custodial sentence is to be imposed in robbery cases. Again, after reflection, it seems these terms are not particularly helpful.

Unless recognized solely as descriptive and not prescriptive terms, they can divert the sentencing court from the task of following the individualized process of sentencing in accordance with fundamental principles of sentencing set out in the Criminal Code , to an analysis focused on what is meant by “exceptional” and “rare”. [ 69 ] The sentencing process in robbery cases may have become too fixated on the fact that the offence is robbery, rather than focusing on the circumstances of the offence and the offender.

Even if custodial dispositions are very frequently, or even usually imposed for robbery offences, starting off with a presumption (explicit or implicit) that jail is required in street level robbery cases seems unnecessary and ill advised. [ 70 ] The vast majority of robbery sentences in Manitoba are imposed in the Provincial Court by way of oral dispositions, many on busy dockets. I have no doubt that particularly before the advent of the CSO regime, there were situations where the individual circumstances of robbery cases merited suspended sentences and those were imposed.

Indeed records read to the Court in conjunction with sentencings not infrequently refer to suspended sentences or short terms of imprisonment for robbery convictions. [ 71 ] Ironically, the availability of the conditional sentence regime may have contributed to what I believe is the present mistaken view that jail is a virtual certainty if the offence is robbery, regardless of circumstances. [ 72 ] When CSO’s were generally available for robbery, it became commonplace in this Court where there were mitigating circumstances for the Crown and defence to agree to a jail sentence to be served conditionally, and given the deference required to joint recommendations, such proposed sentences were usually accepted.

The issue of whether a community based disposition through a suspended sentence would also meet the goals of sentencing was less frequently litigated, presumably because the relative certainty of the community based disposition would be very appealing to offenders. [ 73 ] In conclusion, there should be no presumptive sentence of incarceration for this offender because he is guilty of robbery. That would amount to reading in a minimum sentence when none has been prescribed by Parliament. In appropriate cases, non-custodial sentences may be a just and sufficient sanction for robbery offences.

One was recently imposed in Kunzig . C. The Parity Principle and the Kunzig Decision. [ 74 ] As noted, the defence relies on Kunzig , supra , where a suspended sentence was imposed on 18 year old Kunzig for his participation as part of a trio in a bullying style robbery of three younger teens. [ 75 ] Kunzig , says the Crown, should be distinguished as the significant mitigating feature of mental health difficulties present there is absent here; as well Kunzig was a party not the principal in the robbery and played a minor role. [ 76 ] The defence argued that Kunzig was analogous.

There are parallels but there are also significant differences. Clearly parity requires consideration of that recent decision. The types of robberies were very similar. Although Kunzig was not the principal, he participated as part of a trio in committing the robbery, which involved intimidation of the victims.

Here, it was a one on one situation and the encounter was less threatening. [ 77 ] The very significant steps towards rehabilitation Kunzig had taken, in the face of his addiction and mental health issues were major factors in assessing both his moral blameworthiness and in mitigation. [ 78 ] Here, Meechas seems to have committed the robbery on the spur of the moment, with lesser deliberation than Kunzig. It seems to be out of character for this youth.

Meechas, despite living in an impoverished condition and subject to significant disadvantage in relation to his Aboriginal background has maintained good character in the community before and after this event. He is listening to his grandmother. He is attending school regularly and has aspirations to continue high school and graduate. He has been on a curfew as part of his bail conditions for more than a year, with no further involvement. His remorse was immediate – beginning at the police station. All of these are mitigating features.

In the end, although the mitigating factors are different, in both cases, they are significant. This suggests the Court should impose a similar sentence on Meechas as it did on Kunzig. D. The Gladue Factors. [ 79 ] I find that the Crown’s submission, while thoughtful in many respects, gives insufficient consideration to the relevant Gladue factors. When I asked the Crown how these factors played out in this case, it was submitted that the seriousness of the offence demanded a jail sentence in the range of 12-18 months, but that the Gladue and other factors influenced the Crown to seek the lesser sentence of

nine months jail. [80] As noted, Meechas is identified as a low risk to reoffend, but to the extent risk factors are present, they relate to association withcriminal peers; his risk is low while he remains under his grandmother’s supervision and continues to accept that supervision. He hasgood attendance at school and is in grade 11. He wishes to graduate and clearly, incarceration would disrupt this process.

Sadly, thepercentage of Aboriginal youth who graduate from high school still lags significantly behind the overall percentage of high schoolgraduates. [81] Sending Meechas to jail will drastically enhance the risk of association of criminally oriented peers and will disrupt his path ofeducation towards his high school diploma.

Moreover, in an institution he is unlikely to obtain ready access to culturally appropriateaddiction assessment and treatment, if required, such as is available in his community. [82] Both his grandmother, who has been his primary caregiver, and the probation officer identify him as a follower rather than aleader. The PSR notes: “He seems to be swayed depending on who he is associating with at the time.

Currently he seems to have somegood influences pushing him in the right direction and he seems to be avoiding the negative influences.” Incarcerating him would elevatethe risk to the community, contrary to its long term protection.

Still, I recognize that if sentencing principles clearly require incarceration,this fact alone cannot defeat an otherwise appropriate sentence. [83] In this context, if it is possible to meet proportionality with a community based disposition, a sentence which does not obstructthe momentum he now has towards graduation and keeps him away from an environment filled with the criminally orientated isimportant. [84] Moreover, Gladue also directs me to consider that restorative justice principles, whereby an individual can attempt to rightwrongs or give something back to the community, are more consistent with traditional concepts of Aboriginal justice. (I note that SwanLake First Nation seems to have a number of community oriented organizations that could benefit from community service) Thissuggests that community service work could be an appropriate sentencing tool. [85] The Manitoba Court of Appeal has also observed that either fines or community service work can be used to promote theobjective of deterrence in sentencing.

In R. v. Leask, (MB CA), [1996] M.J. No. 586 the Court of Appeal overturneda one year prison sentence and imposed a substantial fine or community service on three young first offenders for an assault causingbodily harm, the circumstances of which were described as “brutal”. Twaddle JA for a unanimous court explained at at para 5 and 6: 5 The sentence must be a deterrent one, to discourage these young men and others from engaging in such callous behaviour, but adeterrent sentence does not have to be an incarcetory one.

A fine or order of community service, accompanied by supervised probation,can have a deterrent effect if substantial enough. Such a sentence has a better chance of rehabilitating the offenders than one which placesthem in the company of experienced criminals and may cause them to lose their employment. 6 Taken by itself, the offence involved in this case merited a prison term, but the circumstances of the offenders militate against thatsanction and make it an unfit sentence.

As long as they are severely punished, society will be better served by efforts to rehabilitate themoutside the prison system. [86] If a fine or community service plus probation was appropriate for first offenders who committed a brutal assault, how can it beinappropriate in this context?

If it was reasonable that Kunzig was given a suspended sentence, with Gladue factors not being relevant tohis case, how is it reasonable to sentence Meechas, where those factors must be considered, more harshly? [87] If Parliament’s dictates in s. 718.2(e) “that all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” and theadmonition of the Supreme Court in Gladue, repeated in Ipeelee, is to have effect in any case, it must surely have an effect in this case. [88] I must not sentence Meechas to jail unless I consider that jail, and only jail, will provide a proportionate response, and that onlyjail can satisfy the need for deterrence in this case. [89] Will a suspended sentence be sufficiently proportionate?

As robberies go, this one was clearly less serious than many. Therewas no use of violence. There was no weapon. There were no injuries. It was an incident where Meechas bullied and chased a youngerteen who gave up his IPOD and ran. The IPOD was recovered. While every robbery is serious, it is evident to me that this crime isclearly on the lower end of the robbery continuum. [90] As I observed in Kunzig, supra, at para 54: Our community understands that young adults sometimes behave foolishly, and some commit criminal acts.

While they must not escapeunpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness for crimes theycommit as compared to mature adults. It is only just that this be reflected in the sentence imposed. [91] There was remorse and insight from the beginning by this young Aboriginal offender who has no record and has been in thecommunity for a year without incident. [92] A criminal conviction for robbery is extremely serious, almost certainly bringing lifelong negative consequences for a youthfulmistake. In R. v.

McCormick, (MB CA), [1979] 4 WWR 453 the Manitoba Court of Appeal noted at para 21 that “acriminal record itself, and the consequences which it carries, becomes part of the punishment, and should be so considered by the judgeimposing sentence.” [93] As our Court of Appeal indicated in Leask, community service work can itself reflect the seriousness of the offence and provide

deterrence. Moreover, as noted, community service work is more consistent with Aboriginal notions of restorative justice, and therefore in keeping with s. 718.2 (e). CONCLUSION [ 94 ] After reflecting on all of the unique circumstances of this offence and this offender, I cannot conclude that proportionality and deterrence dictate that only a jail sentence would be appropriate.

For the reasons discussed in detail above, in the circumstances of this offence and this Aboriginal offender, I believe a suspended sentence of 18 months with supervised probation, including community service, is reasonable in the circumstances. It is a proportionate response, given that this robbery was an unplanned, unsophisticated, low level bullying encounter with no violence by a young Aboriginal offender with no prior record.

The fact of conviction, plus community service will provide the necessary element of deterrence, as well as a measure of restorative justice. [ 95 ] Therefore I suspend the passing of sentence for 18 months and place Meechas on supervised probation with the following conditions: 1) Keep the peace and be of good behaviour; 2) Appear before the court when required to do so by the court; 3) Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4) Report to Probation Services not later than July 4, 2012 and provide contact information; after that report when and how you are directed; 5) Attend for an substance abuse assessment with NADAP and comply with their recommendations; 6) Attend school regularly, or seek employment, or participate in a training program; and provide a

schedule of school or employment work or training program to your Probation Officer as requested. 7) For the first 12 months of your probation abide by a 10:00 p.m. to 6:00 a.m. curfew during school or work nights unless in a medical emergency involving you or a member of your immediate family, unless in the company of Hazel Soldier or Norma Soldier, or unless another exception is approved in advance by your Probation Officer; 8) Present yourself at the door for curfew checks by police authorities or Probation Services or their designates; 9) Attend, participate in and complete counselling, if any, as directed by your Probation Officer. 10) Not to contact or communicate with Brian McKinney in any manner whatsoever. 11) Perform 100 hours of community service. 12) Reside with Hazel Soldier in Swan Lake First Nation until you graduate from high school, unless your Probation Officer approves any change of address. 13) Within the first seven days of your probation, attend to the nearest DOPS or RCMP detachment to provide a sample of your bodily substance for DNA purposes; [ 96 ] Costs and surcharge are waived. [ 97 ] This is a Primary Designated Offence.

I order that a sample of your bodily substances be taken for the DNA data bank. [ 98 ] There will be a 10 year s. 109 weapons prohibition, subject to any application by Meechas for an exemption for sustenance purposes. _________________________ M.J. SMITH P.J.