R. v. Faulkner, 2019 NSPC 36

Provincial Court of Nova Scotia Citation: R. v. Faulkner , 2019 NSPC 36 Date: 2019-01-14 Docket: 8191888, 8235297 Registry: Dartmouth, Nova Scotia Between: Her Majesty the Queen v. Derek Demitrius Faulkner Decision ON SENTENCE Judge: The Honourable Judge Jean M. Whalen Heard: December 17, 2018 in Dartmouth, Nova Scotia Decision: January 14, 2019 Charges:

Section s 344 and 145(3) Criminal Code of Canada Counsel: Gayle Karding, for the Crown Karen Endres, for the Defence By the Court: I FACTS [ 1 ] Mr. Faulkner entered the Ultramar Gas Station at 7:50 a.m. He began browsing around the store. The store clerk, Ms. Rothney, thought it strange. At 8:07 a.m., the accused approached the clerk, put items on the counter, and demanded the clerk activate four prepaid VISA cards at $250.00.

The clerk asked, “Are you sure?” and the accused responded, “Don’t get silly, don’t push any buttons, or I’ll come over the counter.” I reviewed the video and the accused was leaning in over the counter. She activated two cards/per allowance of the machine. The accused waited while she served customers. At 8:20 a.m., a second clerk took over the counter (Ms. Rotheny had told him the store was being robbed). She waited on other customers. [ 2 ] Mr. Faulkner leaned in again and told Mr. Vaughan he would “jump over the counter and tie him up with zip ties and put a gun in his face.” Then Mr.

Vaughan activated two more cards. The Defendant puts the cards in a pocket of his coat. Mr. Faulkner then demanded money from the till. Mr. Vaughan opened the till and emptied into a plastic bag, $39.00. He gave the bag to the accused who put it in his coat pocket. [ 3 ] Mr. Faulkner then asked for five cartons of cigarettes. Mr. Vaughan put them in the bag ($692.00). A customer entered the store and approached Ms. Rothney who told him to leave and call the police. The customer left and called 911. [ 4 ] After the accused got the cigarettes, he asked Mr. Vaughan to call a cab. Mr. Vaughan called a taxi.

At 8:50 a.m. the police responded to the 911 call. They entered the store and saw Mr. Faulkner with his back to them. Mr. Vaughan nodded to the police that was the male reported. [ 5 ] Breaches : Mr. Faulkner was in custody on robbery on January 19, released March; re-arrested. June 8, 2018 he was on a recognizance to reside at a residence with his surety. On same date at 8:12 p.m. the surety called police. Police attended. The accused was not at the residence. A Feeney warrant was prepared and the accused was subsequently arrested. II AGGRAVATING FACTORS

(1) Robbery is inherently violent and there were implied threats of violence to clerk #1 and specific to #2

(2) Lengthy record including two robberies, 2005/2009

(3) Accused released from custody; breached release

(4) Prolonged nature of the offence – accused was in store for over an hour

(5) Clerk asked member of public to call police III MITIGATING FACTORS

(1) No weapons or mask

(2) C of P – spared complainants

(3) Gap in accused’s record – 3 1/2 years

(4) Accused co-operative with police – who noted not your “normal robbery”

(5) Accused expressed his remorse. IV PRE-SENTENCE REPORT [ 6 ] Mr. Faulkner is 32 years of age. He has “no relationship” with his father and speaks to his mother infrequently as she lives “out West”. The accused has five siblings. Mr. Faulkner was raised by his grandparents and denies any form of abuse within their household. He left home at 15 years after his grandmother passed away and began associating with a negative peer group and using drugs.

He spent some time at the Nova Scotia Youth Facility (Waterville) between the ages of 15 to 18 and reported he was abused while in custody. [ 7 ] He is currently in a relationship with Ms. Murphy, who has two children. [ 8 ] Mr. Faulkner completed Grade 8. He reports having no employment experience except “cash” jobs with a moving and delivery business. [ 9 ] Mr. Faulkner says he struggles with anxiety although he has never been formally diagnosed.

He says he experimented with cocaine and prescription medication but stated, “Drug use has never been a problem in his life,” yet he smokes marijuana daily to cope with anger and anxiety. [ 10 ] Mr. Faulkner reported completing Respectful Relationships in 2006 and High Intensity Violence Program in 2010. He has some hobbies and volunteered for Cease Fire in the past. [ 11 ] Mr. Faulkner declined to provide collaborative contacts, saying, “all the people I know are in jail or I’ve lost contact with them because they moved out West.” Mr. Faulkner accepts full responsibility for his actions. [ 12 ] Mr.

Faulkner addressed the court when given the opportunity. He struck me as an articulate and thoughtful individual who had some insight into the issues he faces and his actions on the day in question. He apologized to the “victims” and expressed remorse for his actions. [ 13 ] He acknowledges that Mr.

Wright “brought things to light” and he wants to address those issues, get his GED, and live a “normal life.” [ 14 ] While in custody he has a job in the kitchen, is seeing a doctor and taking new medication. [ 15 ] Record – Lengthy Between 2005-2015 – 8 CCC including two previous robberies and three CDSA (5(2)) Between 2004-2002 – YCJA – (42) weapons, drugs, breaches, break and enters [ 16 ] Victim Impact Statement - None filed, but no doubt they were fearful. They acquiesced to accused’s demands and asked a customer to call police. [ 17 ] Cultural Assessment – Completed by Mr. R. Wright, MSW, RSW.

It is extensive, well-informed and well-researched. The Nature of an Impact of Race and Culture Assessment

Though much has been written about the intersection of race and the criminal justice system, and in particular the experience of North Americans of African descent, until the development of IRCA’s (sic) there had been no recognized form for the presentation of such a report. That people of African descent have been overrepresented among incarcerated persons in Canada has been studied by academics, justice system leaders, and activist persons.

The Office of the Correctional Investigator took special notice of the conditions of inmates of African descent in federal correctional institutions in its year end report in 2013. It concluded: “Black inmates are one of the fastest growing sub-populations in federal corrections. Over the last 10 years, the number of federal incarcerated Black inmates has increased by 80% from 778 to 1,403.

Black inmates now account for 9.5% of the total prison population (up from 6.3% in 2003/04) while representing just 2.9% of the general Canadian population.” (p.8) Now, 4 years after the advent of these reports in the well publicized YCJA matter described as R v. X, IRCAs have been widely accepted in Nova Scotia courts and have also been conducted in Ontario.

Though I fully respect that the experience of aboriginal Canadians is quite unique, and I have no wish to expropriate or exploit their struggle and leadership, I nevertheless need to acknowledge that my development of IRCAs has been influenced by my familiarity with Gladue reports.

Like Gladue reports, the goal of IRCAs is to provide courts with more background information about an offender’s race and cultural background to assist the court at arriving at a just sentence: A sentence that considers the circumstances of the offender, alternatives to incarceration, and does not further contribute to the systemic problems of overrepresentation of persons within correctional populations.

This principle is generally stated in the Criminal Code of Canada with particular attention given to Aboriginal offenders: 718.2 A court that imposes a sentence shall also taken into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. In keeping with these principles, it is a founding premise of IRCAs that a person’s race and cultural heritage should be considered as a significant factor in considering their sentence n a criminal matter.

Not just because of cultural responses to normal stressors, but also because of the forces of racism that person experience and our growing understanding of how this affects outcomes when one encounters the justice and other government systems. In Nova Scotia we have significant reason to understand these effects.

We are the province of the Royal Commission on the Donald Marshall, Jr., Prosecution (1989), which opening paragraph is very telling: The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could – and should – have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner.

That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native. (p.1) We are also the province of the Black Learners Advisory Committee Report on Education: Redressing Inequity – Empowering Black Learners (1994). This report was produced as part of a comprehensive study of the education inequities that exist for African Nova Scotians (ANS). It produced 3 volumes of materials and 30 recommendations for education reform.

That systemic racism exists in the Nova Scotia education system was well described by this report: “Black Nova Scotians, like other Black Canadians, are victimized by a racist ideology and a racist social structure. Racism permeates the entire social, economic, political and cultural environment of Nova Scotian and Canadian…. During the BLAC research, we encountered widespread condemnation of the education system as biased, insensitive and racist.

Systemic racism was seen as manifested in student assessment and placement; in labelling of large numbers of Black students as slow learners or having behaviour problems; in steraming (sic) ; in low teacher expectation; in denigration by and exclusion of Blacks from the curriculum; and in the total lack of responsiveness to the needs of Black learners and concerns of the Black community.” (pp. 34, 35) Similarly, the differential and disadvantageous experience of African Canadians in the federal corrections system has been documented by the Office of the Correctional Investigator in it year end report in 2013.

Nova Scotia’s review of the Mental Health and Addictions system produced the Together We Can Strategy (2012) found that African Nova Scotians were among a number of diverse communities whose mental health and addictions treatment needs had not yet been served sufficiently. This Nova Scotian finding was identified earlier in a national study completed by a subcommittee of the Mental Health Commission of Canada. The document they produced: Improving Mental Health Services for Immigrant, Refugee, Ethno-Cultural and Racialized Groups: Issues and Options for Service Improvement (2009).

It is interesting to note, that I served on the MHCC subcommittee and was a contributor to that report. Ms. Lana MacLean, my colleague and friend who is also a person who conducts IRCAs served on the committee that produced the Nova Scotia review document. Knowing all of this, an IRCA then seeks to understand how an individual’s ANS heritage and interaction with formal and informal systems has affected their involvement in criminal behaviour, will be a factor in their treatment while incarcerated, and will be a factor in their rehabilitation and reintegration in the community.

These issues are consistent with the expectations of the report described in Judge Curran’s order requesting: “preparation of a cultural assessment report regarding his African Nova Scotian background and any cultural factors and racial factors which are suggested to be systemic in nature, but may also have individual impacts on him,” Examination of “the role played by Derek Demitrius Faulkner’s cultural and racial background with respect to the criminal offence herein.” Preparation of this Report

In preparing this report I have participated in the following activities: • Interview in person of Mr. Faulkner at Northeast Nova Scotia Correctional Facility • Review of JEIN report, Crown Brief and other Disclosure material • Interview by phone of Mr. Michael Dull, counsel for Mr. Faulkner in the civil matter • I attempted contact with other collaterals but were not able to reach them in time for the drafting of this report. I will continue to reach out to collaterals in the event that I am called to testify on this report. [ 18 ] At page 16, Mr. Wright states: Mr.

Faulkner described other robberies in which he had participated. In these robberies his pattern was to cover his face and limit has time on location. He fled an earlier robbery by taxis and was easily tracked when police were able to get information about his destination from the cab company. It is clear to me that Mr. Faulkner was not in his “right mind” when he committed this instant offense. It was a spontaneous act of desperation, conducted while triggered by the argument with his partner and the throws of an anxiety attack and over medicated with both prescribed and non-prescribed drugs.

His lack of resistance to police and his remorseful and full cooperation with them during interview lien up with this assessment. During his interview Mr. Faulkner was apologetic and explained the hard economic circumstance he and girlfriend were having and his desperate need to make a contribution. It appears from the transcript that he was extremely remorseful and was tearful at time during the interview. As Mr. Faulkner explained his instant offense to me, I finally understood the nature of his circumstance. During our interview I began to explain this to him: • Mr.

Faulkner is the oldest child of a mixed-race couple, born to a Black father and white mother; • He was abandoned by his parents shortly after his birth and was raised by white grandparents with his bi-racial brother; • Identified as Black but raised by white grandparents he grew up with an insecure sense of his racial identity; • He naturally sought same-race models as a child and unfortunately the models that were available to him were not pro-social; • He gravitated towards delinquency in his youth.

Though not an unpleasant or violent person he sought to figure out what it was to be Black young man; • He dropped out of school and had insufficient supports at home or at school to keep him attached; • He not only lost his grandmother, his most significant caregiver, but he found her dead or dying at home, a loss and shock that he has not yet had the opportunity to address; • He began getting arrested, and the systems that were designed to correct and redirect him, failed him; • He was identified as a youth suffering from an anxiety disorder, and though proscribed medication, was not provided with sufficient assessment or treatment to get at the root of his real problems; • While at NSYF he reports having been sexually abused on multiple occasions; • Under-educated, unemployed, without strong parental direction, racially confused with no pro-social, same-race models, he sought companionship and economic sufficiency through crime; • His criminal behaviour was interrupted finally by his experiences in federal institutions.

Here he made use of programming aimed at correcting criminal thought and behaviour; • He started a relationship that the values with a partner that he loves and wishes to “do well-by (sic) ”; • Upon his release he sustained a “non-criminal” life; • The pressure of his under-employment created tensions in his relationship that became unbearable for him; • After a particularly troubling period of time arguing with his partner, having his inability to contribute “thrown in his face 24/7”, in a triggered, anxious and overmedicated state, he committed the robbery that is the instant offense, desperate to fulfill his financial obligations, trapped in a corner, with no guidance or resources to do anything but revert to his criminal behaviour; • Hence my description of Mr.

Faulkner as a fatherless, bi-racial, abused young man, in search of love and family. [ 19 ] At page 17: I believe that I have reviewed for the reader the systemic issues of culture and race affecting Mr. Faulkner. I will draw the clearer here: • A bi-racial child to very young parents, Mr. Faulkner’s mother planned to give him up and he was raised by his maternal grandparents; • Identified as Black but raised by white guardians without significant contact with his Black father or other relatives, Mr. Faulkner likely grew up with a poor and unhealthy sense of racial identity as a Black man;

• Attending schools that had limited numbers of Black students and educators, Mr. Faulkner had little exposure to pro-social, same- race, male models; • Mr. Faulkner’s advancing delinquency and detachment from school was unable to be appropriately met by culturally specific services that were powerful enough to engage him; • Mr. Faulkner’s anxiety condition that was likely exacerbated by the conditions of incarceration and certainly deepened by any mal- treatment (sic) he may have experienced there appears not to have been properly identified and treated.

The lack of culturally specific or even culturally competent mental health services have likely diminished the effectiveness of these services and the course of his life; • When looking at the pattern and progress of his juvenile criminal behaviour it is always a wonder if Mr. Faulkner’s treatment by the various elements of the justice system would have been different if he were white. We know much more about the over policing of ANS, the greater frequency of charges, the longer sentences and similar responses.

These are likely indicators of systemic racism in the criminal justice system and are also likely evidences of systemic racism in the systems that should have “caught” Mr. Faulkner during his descent; • The programmes and services that Mr. Faulkner attended while federally incarcerated seemed to have had a positive affect ( sic) on him. It is always important to ask how these programmes can be more effective for ANS offenders. The need for culturally specific content in these programmes is often discussed.

The lack of such programming is a systemic deficit that negatively affects Black inmates of institutions; • When thinking of his sentence the absence of, but need for culturally competent/specific services should be considered. V POSITION OF PARTIES [ 20 ] Crown : Seeks a period of three to four years for robbery and 60/90 days for breaches, citing denunciation, deterrence, separation from society and protection of vulnerable members of society. [ 21 ] Counsel distinguishes R. v. Meade and R. v.

Neaves , unreported cases Judge MacRury, saying there was no violence and it was on low end of scale. [ 22 ] Defence : Seeks 337 days going forward followed by 18 months probation, emphasizing the unusual circumstances of the case, accused’s remorse, and rehabilitation. [ 23 ] Counsel argues the sentence range is broad and the court must be mindful of the context of the offence, and the cultural assessment prepared for the accused. [ 24 ] Counsel cites the unreported Neaves decision : … Certainly his behaviour was motivated by his addictions to drugs which certainly he’s made efforts in terms of taking courses in the Correctional Centre which I’ve made note of as well. … The main focus in … in this type of offence is really the denunciation and deterrence and a message has to go out to this accused and others, that this type of conduct cannot be justified. … … The bench mark in Nova Scotia for robbery is three years if it’s with violence.

This wasn’t one with violence and both counsel correctly acknowledged that this one that this was one that was lower in the range but I believe the range is … the bottom of the range is, in my view, is 18 months. [ 25 ] Meade (unreported) : … Mr. Meade, while at a friend’s house, planned a robbery, went into the Needs store. He was heavily under the influence of substance … substances at the time. He asked to rob the store. He knocked over … first tried to get money and wasn’t successful, and then lotto tickets. Then knocked over one of the cases and then tripped n the way out and he was subsequently arrested.

He has plead guilty to the charge. He was masked at the time. It’s clear that he planned the matter. No violence was used. This is … he certainly has a criminal record but this was the first incident of violence. The position of the Crown is is that he should receive two years on the attempted robbery and a year additional on the 351(2). … I’m also mindful of the effect this had on the victim when I heard the tape of the victim in this matter and it’s clear that while violence wasn’t used, it was more good luck than good management that nobody was hurt in this incident, either the victim or Mr.

Meade in the circumstances. What is a fit and proper sentence for the accused?

[ 26 ] In R. v. Donovan 2012 NSPC 15 beginning at paragraph 14 , I stated : [14 ] Ruby, 6 th Ed. at para 2.1 states: It is a basic theory of punishment that the sentence imposed bear a direct relationship to the offence committed. It must be a fit sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender deserves the punishment received and feel confidence and fairness in the rationality of the system. To be just, the sentence imposed must also be commensurate with the moral blameworthiness of the offender.

A sentence that is not just and appropriate produces only disrespect for the law. These common-law principles have been codified in sections 718 , 718.1 and 718.2 of the Criminal Code . … [16] In crafting the appropriate sentence the Court must have regard to the factors set out in the Code as well as the nature of the offence committed and the personal circumstances of the offender.

According to the Supreme Court of Canada, the appropriate sentence will also depend on the circumstances of the community in which the offence took place. “It must be remembered that in many offences there are varying degrees of guilty and it remains the function of the sentencing process to adjust the punishment of each individual offender accordingly. The appropriate sentence for the specific offender and the offence is there fore determined, having regard to the compendium of aggravating and mitigating factors present in the case.

It is the weight attached to the aggravating and mitigating factors which shape and determine the sentence imposed and this is an individual process. In each case the court must impose a fit sentence for this offence in this community. The nature and gravity of the offence is properly the central factor in sentencing. It is and must be the first rule that prompts the court. The concern behind this consideration is that there should be a just proportion between the offence committed and the sentence imposed.

Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed having regard to the nature of the crime and the particular circumstances in which it was committed.” Sentencing , Ruby, 6 th Ed. [17] Other common law principles of sentencing must also be appropriately applied. In the end, the punishment must be proportionate to the moral blameworthiness of the offender. The public must be satisfied that the offender deserved the punishment received and must feel a confidence and fairness and rationality of the sentence.

This principle of proportionality is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may be imposed only on those who possess a moral culpable state of mind. The cardinal principle is that the punishment shall fit the crime. [18] s. 718.2 (

e) of the Criminal Code requires a judge to consider all available sanctions that are reasonable. That is jail, probation, fine or some combination. [19] s. 718.2(

a) now entrenches the common-law by requiring judges to increase or reduce a sentence by taking into account aggravating or mitigating circumstances relevant to the offence or the offender … [ 27 ] In R. v. X., 2014 NSPC 95 , Judge Derrick, as she then was, stated at paragraph 194: [194] I am not aware of a case dealing with the relevance of race and culture in the context of an African-Canadian youth who is the subject of an application for an adult sentence.

In the context of sentencing adults, “systemic racism and background factors faced by black youths…” have been acknowledged as important and possibly influential in sentencing. [173] And although, in the context of an African-Canadian offender, the seriousness of the offence has been identified as so determinative a factor in sentencing that “systemic and background factors could not affect the length of the sentence” [174] , this was said in the context of sentencing an adult where consideration of denunciation and deterrence is mandated.

By contrast, as I noted earlier in these reasons, in determining an application for an adult sentence under the YCJA , the factors to be taken into account expressly include the young person’s background.

And furthermore, although denunciation and deterrence are now available considerations for judges imposing a youth sentence under the YCJA , the application of these factors is discretionary. [195] The Ontario Court of Appeal has recognized, in the context of sentencing an adult offender, that the sentencing principles, … generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offense and the values of the community from which the offender comes. [175]

[ 28 ] Late at paragraph 197: [197] Like Aboriginal Canadians, persons of African descent are over-represented in prisons and jails in this country.

The Office of the Correctional Investigator has determined that Black offenders now account for 9.5% of the total Federal prison population while representing just 2.9% of the Canadian population. [177] The Ontario Court of Appeal has observed that the underlying reasons for the over-representation of Aboriginal offenders in Canada’s prisons – poverty, substance abuse, lack of education, lack of employment opportunities, and dysfunctional communities - could also be factors in the over-representation of African-Canadians.

The Court viewed the consideration of such factors as a legitimate undertaking for a sentencing judge, saying however, “…this is a matter that should be addressed at trial where the evidence can be tested and its relevance to the particular offender explored.” [178] [ 29 ] In R. v. Gabriel, 2017 NSSC 90 , J. Campbell stated at paragraph 48: [48] In R. v. Ipeelee [8] the Supreme Court affirmed the special sentencing approach that applied to aboriginal offenders.

While systemic factors may not justify a different sentence for an aboriginal offender they provide a context for considering information about that person. In some cases an aboriginal offender may receive a sentence that is less than the sentence imposed on a non-aboriginal offender. [49] Aboriginal offenders are treated differently. The Cultural Assessment in this case does not have the same constitutional implications as a Gladue report. But that doesn’t mean it isn’t vitally important. It is a historical fact and present reality that African Nova Scotians were and continue to be discriminated against.

As the criminal justice system must take into account the overrepresentation of Aboriginal people in custody, it must also take into account the effects of discrimination on members of the African Nova Scotian community. [50] As my colleague, Judge Derrick noted in R. v. “X ” [9] citing the Ontario Court of Appeal in R. v. Q.B. [10] black offenders now account for 9.5% of the total federal prison population while representing only 2.9% of the Canadian population.

The underlying reasons for the overrepresentation of Aboriginal offenders – poverty, substance abuse, lack of education, lack of employment opportunities and dysfunctional communities – could also be factors in the overrepresentation of African-Canadians.

As Judge Derrick said, the Ontario Court of Appeal viewed the consideration of such factors as a legitimate undertaking for a sentencing judge but also said that the matter should be assessed at trial where the evidence can be tested and its relevance to the offender can be explored. [51] Some of the principles from Gladue are applicable to a racial and cultural group that has been the subject of such notorious centuries long systemic discrimination. It is important to know about the systemic and background factors that bring any person before the court for sentencing.

That is particularly so when they relate to members of a group that is disproportionately represented in the prison population, disproportionately economically disadvantaged, disproportionately disadvantaged in education, and disproportionately disadvantaged in health outcomes. [52] The purpose is not to justify a discount with respect to an otherwise appropriate criminal sentence.

In a community wracked by violence and struggling to find ways to deal with the complex web of causes that have its young men being killed or sent to jail, it would be wrong to suggest that there should be a lowered standard of moral responsibility. The purpose of the Cultural Assessment is not to justify lower expectations or to offer excuses. It is to provide some level of understanding. [53] Sentencing involves attention to both incident and context. The seriousness and devastating consequences of a crime are considered in the context in which it was committed. The context may be narrow and it may be broad.

The context may involve the capacity for moral judgment or regulation that is diminished by immaturity or intellectual deficit. Those are both examples of context that are easily related to the individual and the crime that he committed. A background of family dysfunction and childhood abuse may, in part, form the person who committed the crime and despite sometimes being less obviously related to the offence are widely considered as part of the relevant context in sentencing.

What may be otherwise inexplicable may become understandable with the benefit of that contextual information. [54] A person’s racial background is also a part of his identity. It does not determine his actions. It does not establish a lower standard for assessing moral culpability. It does not justify or excuse criminal behaviour. It may however help in understanding the broader circumstances that acted upon the person. [ 30 ] Later at paragraph 86: [ 86 ] The Cultural Assessment confronts the concern about crime generally and gun violence specifically in African Nova Scotian communities.

It offers a sociological and historical explanation for troubled communities where some young men have adopted values and norms that frequently lead them to violent crime.

The root is the racism that has developed into branches of educational inequality, social inequality and economic inequality. … Certainly his behaviour was motivated by his addictions to drugs which certainly he’s made efforts in terms of taking courses in the Correctional Centre which I’ve made note of as well. … The main focus in … in this type of offence is really the denunciation and deterrence and a message has to go out to this accused and others, that this type of conduct cannot be justified.

VI ANALYSIS [31] In R. v. Reid, 2015 ONSC 2576 , [2015] OJ No. 2696, J. Morgan stated at para 15: [15] In R v M (C), (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in aninstructive way: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of the community. [32] And, in particular, regarding Mr.

Faulkner, the Court must consider “how the offender’s status as an ANS and his lifetimeexperiences of the effect of racism on [his] life and circumstances affects the degree of his moral blameworthiness in this currentoffence.” [33] Then at paragraph 16 J. Morgan stated: [16] Sentencing thus inevitably entails an analysis that has one eye on the individual offender and another on the community inwhich that individual lives and in which his offence was committed. [34] Robbery is an inherently violent offence.

Society should be protected from those who commit such offences and sentencesimposed should act as a deterrent to those who are like-minded. This is Mr. Faulkner’s third robbery. Sentencing must be proportionateto the gravity of the offence, taking into consideration mitigating factors. So, while the accused entered the store and demanded VISAcards, and cigarettes, this was not a “normal” robbery (to use the words of the Police Officer). [35] At page 9 of Mr. Wright’s report, he states: After emancipation, economic hardship continued to place strains on families.

Many southern families migrated north or west in searchof economic opportunity. Children were often left with grandparents or relatives while parents sought opportunities elsewhere. Theeconomic pressures often separated families. Black men, unable to support their families often left them in search of employment. Sometimes the shame of the inability to provide created strain and distance and resulted in them abandoning their families. Blackwomen often would secure jobs in roles like live-in domestics that neither allowed for spouses or children to be present.

Travelling longdistances to visit one’s children who resided with relatives or friends on weekends or even less frequently became a too frequent pattern. More modern problems economic and educational disenfranchisement, the disproportionate incarceration of Black men, and theeducational and economic achievement gap that exists between Black men and Black women puts further strain on Black couples. Economic Collapse & Increased Demand for Education: Many ANS were historically employed in labour and domestic work.

Throughout Halifax ANS’s (sic) worked as stevedores at the dock yards, laborers on road crews, stone masons, sought after craftsmanand trusted domestic servants. There was also a significant amount of subsistence husbandry that supported rural Blacks in Halifax. Most families kept a cow and a couple of pigs, dozens of chickens or turkeys; others were crafts people who sold their wares indowntown markets. These economic opportunities are now relics of a not too distant past. In terms of education, over the last generation the demand for education in order to enter the economy has grown dramatically.

In themid 80’s (sic) the need was recognized and gave rise to a national effort to encourage students to stay in school (the federal stay-in-school initiative). Prior to this, Nova Scotians of all ethnic groups from the working classes had low educational attainment rates. Thepressures and needs to remain in school gave rise to the recognition that schools were less welcoming places for ANS than others (BlackLearners Advisory Committee, 1994). ANS were faced with the same increased demand for education as White students but were lesswell integrated and supported in the education system.

This increasing demand for education but differential success in integrating ANSstudents into the education system may go a long way to explaining some of the racial differences in criminal and violent patterns wesee. This “achievement gap” between ANS and their white colleagues continues to be a focus of much concern in education today. [36] Then, at page 15, para 3 and para 4, he writes: Since his federal sentence expired in 2014, Mr. Faulkner and his partner were in a “good” relationship.

The great tension in therelationship that led to many fights and arguments (and probably the apparent domestic incident in 2015 that resulted n charges that werewithdrawn but resulted in remands related to failure to comply with recognizances) was Mr. Faulkner’s under-employment and inabilityto make significant financial contribution to the relationship. On the day of the instant offense, the couple had been arguing about this,and Mr. Faulkner, his anxiety flaring, took more of his anti-anxiety meds than he should have.

And then he likely smoked marijuana orhad been smoking it earlier, and left his house, conflicted but under pressure to find some way to make a financial contribution. Mr. Faulkner went to the store where he proceeded to conduct the most unusual robbery. By his description and confirmed by thestatements of the victims/witnesses, he was in the store for about an hour. After walking about he engaged the woman who wasemployed at the store and seemed to alternate between threatening and apologizing as he conducted the robbery. He did not cover hisface or act with any haste.

He allowed the male employee to take over for the female employee at one point in the robbery. He allowedthem to serve other customers between the transactions he was directing the store employees to perform. And he was not strictlymonitoring their interactions with customers such that the female employee was able to tell one customer to call the police. When therobbery was over, Mr. Faulkner asked the male employee to call him a cab, and then he proceeded to casually wait for the cab to arrive. The police arrived before the cab and Mr.

Faulkner cooperated with the arresting officer an dis described as having been arrested“without incident”.

[37] Mr. Wright concludes at page 16, para 1: Mr. Faulkner described other robberies in which he had participated. In these robberies his pattern was to cover his face and limit histime on location. He fled an earlier robbery by taxis (sic) and was easily tracked when police were able to get information about hisdestination from the cab company. It is clear to me that Mr. Faulkner was not in his “right mind” when he committed this instantoffense.

It was a spontaneous act of desperation, conducted while triggered by the argument with his partner and in the throws of ananxiety attack and over medicated with both prescribed and non-prescribed drugs. His lack of resistance to police and his remorseful andfull cooperation with them during interview line up with this assessment. During his interview Mr. Faulkner was apologetic andexplained the hard economic circumstance he and his girlfriend were having and his desperate need to make a contribution.

It appearsfrom the transcript that he was extremely remorseful and was tearful at time (sic) during the interview. [38] Mr. Faulkner takes responsibility for his actions. He apologized to the victims (in open court) and expressed genuine remorse. He said he abused his medication “which is no excuse.” [39] At page 14, para 4, Mr. Wright reports: On interview, Mr. Faulkner was able to talk in depth about the programming that he took during his last incarceration.

He used thelanguage of correctional rehabilitation and spoke about how he worked to “change the people, places and things” that were the pillars ofhis earlier criminal behaviour. He seemed frustrated with himself when speaking about his instant offense, because he had been doing sowell, relatively speaking. He is in a relationship that he describes as good, he has been working seasonally with a friend who owns amoving company, he has been keeping house when not working, and has been avoiding “people, places and things” that he knows aretriggers to his criminal behaviour. [40] Mr.

Faulkner read a letter in open court. I was impressed by his honesty and remorse. He struck me as intelligent and articulateand he has insight into the issues/circumstances that have affected his life. He asked me to consider the “aspects Mr. Wright shed lighton.” He asked me to consider his rehabilitation. [41] So, “How must the court address the individual sentencing of an ANS offender in such a way as to respond to and correct theiroverrepresentation among incarcerated persons ….” [42] In R. v. Zachar, 2018 ONCJ 631, J.

Green states at para 82: Like deterrence and denunciation, rehabilitation of offenders is an important sentencing objective … [43] At paragraph 83: Rehabilitation, like deterrence, has an instrumental purpose: the repudiation of criminal activity and transition to a pro-social lifestyleoffers the best assurance of continuing societal protection. But rehabilitation also has an expressive role that, like denunciation, conveysshared normative principles and values through its considered application. As explained in the introductory passages to R. v.

Lacasse, atpara. 4: One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. [44] Mr. Faulkner has a Grade 8 education. He told Mr.

Wright he was a good student but dropped out of school in Junior High andas a result, he got into a pattern of “smoking weed and getting in with the wrong people.” He acknowledges at page 3 of the Pre-Sentence Report that his reason for leaving school was “mainly due to smoking cannabis and the influence of his peer group.” Mr.Faulkner now expresses that he “would like to complete his GED.” [45] Mr. Faulkner has some employment experience. At the time of the offence, he had been working seasonally with a friend whoowned a moving company.

Now, while incarcerated, he has a “job in the kitchen.” He appears motivated to make the changesnecessary to live, as he says, “a normal life.” [46] In R. v. Reid, 2016 ONSC 954 , [2016] OJ No. 2696, J. Morgan at para 24 states: [24] The Court of Appeal long ago observed that when it comes to sentencing, courts must maintain “a constant appreciation that thematter concerns not merely the Court and the offender but also the public and society as a going concern”. … I must therefore considernot only Mr.

Reid’s personal circumstances, but the societal circumstances which serve to contextualize his actions. [47] At para 25: … “it is not difficult to establish that anti-black discrimination undoubtedly contributes to many of these underlying societal causes.” [48] At para 27: [27] While this court is not in a position to remedy the societal issues, it can and should take the societal context into account infashioning an appropriate sentence for an individual offender. …

[49] Therefore, I should be mindful of the question posed by Mr. Wright at page 18 of his report: What programs and services should be and should have been available to the offender that could have prevented the course of life intocriminal behaviour and/or have more significantly contributed to their rehabilitation and reintegration, the absence of which is evidenceof systemic disadvantage that courts should take into consideration when making [a] sentence. [50] As stated earlier, the Crown is seeking a federal sentence of 3 to 4 years for the robbery charge and 60-90 days on the breachcharge.

The defence counsel argues that jail is appropriate but suggest 337 days, plus probation, going forward, saying that with afederal sentence the accused would not receive the supports needed for success. Defence counsel reminds me that the “range is broad”for robbery … suspended sentence/probation to jail. [51] R. v. Zachar, 2018 ONCJ 631, J. Green at paragraph 3, 4, 5, 6, 8 and 9: [3] This case, as do many, invites consideration of the appropriate role and application of sentencing “ranges” in achieving aproportionate disposition.

The matter is a source of recurrent judicial debate. [4] Until modified by the Supreme Court’s 2015 judgement in R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, theconventional approach to sentencing assumed a trial court’s close adherence to quantitative sentencing ranges for sub-categories ofoffences as delineated by provincial courts of appeal.

Lacasse authoritatively recast the role of court-endorsed ranges, defining them asbut one of various aids available to trial judges, rather than as the first and fundamental building blocks to the crafting of just sentences.Although hardly a radical proposition, Lacasse emphasized the importance of individualized proportionality grounded in the consistentapplication of principle rather than result, with comparative reference, not obeisance, to the ranges proposed by appellate authorities infactually proximate circumstances. These predecessor comparators served merely as historical guides to a fit disposition.

As said in anow hackneyed metaphor, they are but one tool among many in the calculus of sentencing. [5] The Supreme Court’s most recent discussion of sentencing protocols suggests a further readjustment. To the degree that acourt’s practice is a reliable indicator of its theory, the Supreme Court is now signaling a return to analytical dominance of a range-driven paradigm. As modeled in R. v.

Suter, 2018 SCC 34 , a trial judge first focuses on the nature of the offence, thendetermines the judicially sanctioned range of sentence for the identified offence category and, finally, applies established goals andprinciples of sentencing to locate the offender along the prescribed penal range.

Absent sufficiently exceptional circumstances, there isno lawful escape, to use a different metaphor, from the gravitational pull of a judicially endorsed range. [6] Irrespective of its precise duration, the prosecution’s view is that a penitentiary-length custodial disposition is necessary to meetthe here-relevant objectives of sentencing. The Crown position tracks long settled recognition, as reflected in judicially sanctionedranges, that trafficking in addictive drugs should be met with a severe sentence intended to advance the goals of deterrence anddenunciation.

On the other hand, the principles of rehabilitation and restraint are generally paramount in sentencing youthful firstoffenders. Fairly resolving this tension is a familiar challenge. As Schreck O.C.J. (as he then was) said in R. v. Fernandez, [2018] O.J.No. 2213, at para. 22, It is one faced by most sentencing judges. There is ultimately no one correct way to achieve this balance, which is why courts are usuallygiven a wide latitude in determining the appropriate sentence in any given case. [8] Over ninety percent of criminal charges that are neither withdrawn nor stayed result in findings of guilt.

Overwhelmingly,sentencing is what trial court judges do. A judge’s discretion is broad and subject to appellate deference, but it is not absolute. For everycriminal offence, Parliament prescribes the variety and range of sentences following a guilty verdict. For each offence or category ofoffences, Parliament fixes both the floor and the ceiling for the exercise of judicial sentencing discretion. [9] For most, but not all offences, no floor, or minimum sentence, is prescribed. Some, however, carry minimum fines or, morecommonly, minimum terms of imprisonment.

Absent certain aggravating circumstances (none of which here obtain), there is nominimum sentence for the drug trafficking committed in this case and therefore no statutory impediment to a trial judge determining thebrevity of an appropriate custodial disposition. [52] At paragraphs 12 and 13 J. Green states: Objectives and Principles of Sentencing [12] While the available compass of sentencing discretion is expansive, its judicial exercise is subject to both statutory direction andappellate governance.

As to the former, s. 718 of the Criminal Code requires a sentencing court, through the sanction it imposes, toachieve “one or more” of the identified sentencing objectives of denunciation, specific and general deterrence, societal separation(“where necessary”), rehabilitation, reparation for harm done, and promotion of a sense of responsibility.

Further, any sentence mustreflect a collection of guiding principles set out in the Code and, in particular, the “fundamental principle” of sentencing, as prescribed ins. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

Sentencingjurisprudence uniformly treats the phrase “degree of responsibility” interchangeably with “moral blameworthiness”, a locution that moretransparently captures the full compass and complexity of relative personal fault. [13] Judicial attention must also be paid to those supplementary sentencing principles set out in s. 718.2. These include “aggravatingcircumstances” (effectively restricted, in the case at bar, to the gravity of the offender’s crimes) and other considerations, arguably moremitigating, such as those captured by the principles of parity, totality and restraint.

Further, and “[w]ithout restricting the generality ofthe Criminal Code”, s. 10(1) of the CDSA adds that the “fundamental purpose” of sentencing for drug-related offences,

is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Unlike the “fundamental purpose of sentencing” proclaimed in the Criminal Code , that set out in the CDSA does not expressly reference the objectives of denunciation or deterrence, while positively “encouraging rehabilitation”. [ 53 ] R. v. Halsey 2017 NSSC 141 , J.

Duncan at paragraph 57: [57] When we speak of an acceptable range of sentence, we are trying to determine where, between the extremes that may be permitted in imposing a sentence, the circumstances of the offender and of the offence fall relative to other cases of a similar nature. For example, the most serious offence in this case carries a maximum punishment of life imprisonment but no minimum punishment is mandated. The issues are: “Where should the offenders’ punishment fall within that range so as to be consistent with the general approach that courts take to sentencing for these offences?

And how does that sentence reflect consistency with what has taken place in other cases with other persons who have committed the same offence in a similar way and with similar backgrounds? [ 54 ] At paragraph 58: [ 58 ] To assist in assessing the fit and proper range of sentences we look to the sentences that have been given out and the principles that have been applied by other courts in other cases.

In particular we look to the decisions of Courts of Appeal and more specifically again to the Court of Appeal in this province for the authorities that we have to, as trial judges, rely on in deciding what is an appropriate sentence that would fall within a range considered to be fit and proper. [ 55 ] The range of sentencing certainly varies in the province.

The more aggravating the circumstances, the greater the penalty; e.g., if weapons are used; if any injuries to victim; face mask; a “home invasion”; planned and premeditated; accused has a previous record; store clerks at convenience stores are seen as (vulnerable) individuals; or some combination of the above, then courts will emphasize general and specific deterrence and protection of the public when imposing a sentence. [ 56 ] I am mindful that the court recognized in Lacasse at para 12 “that determining proportionality is a delicate exercise because both overly lenient and overly harsh sentences imposed upon offenders might have the effect of undermining public confidence in the administration of penal justice.” ( R. v.

Walsh , 2016 NSPC 53 ) [ 57 ] One thing that was glaringly obvious in my review of the robbery cases, particularly of ANS offenders, there was no Impact of Race and Cultural Assessment (IRCA) before the court or any information about the intersection of race and the criminal justice system. I am mindful that these IRCA reports have only come into existence recently. The first was R. v. X. , 2014.

The report is a valuable tool for providing information regarding a defendant’s “background” which is part of the “formula” when considering the “range” and final disposition to be imposed. [ 58 ] With the development of IRCA it enables the court to fully appreciate the circumstances and background of an ANS offender; to get at the “root” of the issues faced by the defendant. [ 59 ] Mr. Faulkner has not led a pro-social lifestyle from a very young age. At page 4, Mr. Wright reports, “Mr.

Faulkner was an at- risk youth who continues to demonstrate behaviours and characteristics that stem from an earlier time in his life.” Hopefully, now that Mr. Faulkner recognizes the issues that Mr. Wright has brought to light, he will make every effort to live a “normal life” that he says he wants. [ 60 ] Now that the Court is aware of Mr. Faulkner’s background through the IRCA and Pre-Sentence Report, I can impose what I consider to be a fit and proper sentence. [ 61 ] Mr.

Faulkner pled guilty to the robbery and, in doing so, he spared both complainants from testifying about what could only be described as a stressful situation. There are aggravating factors, but no statutorily designated factors. Mr. Faulkner used the threat of violence on both clerks at separate times, but did not act on it. I have no doubt they took those threats seriously as they both put up no resistance, they complied with the accused’s demands, and Ms. Rothney told a customer to call 911. Mr. Faulkner was in the store for at least an hour.

It is unfortunate for all concerned, including the accused, that he did not abandon his quest, but alas, he did not. It was a choice made based on

an act of desperation, frustrated by his inability to make a financial contribution to his family situation while over medicated and under the influence of marijuana. Every choice an individual makes has a consequence, and unfortunately for the accused, it landed him in jail. [ 62 ] I am mindful of the principles of general and specific deterrence and protection of the public when it comes to the offence of robbery, but in these circumstances, I am also mindful of rehabilitation. [ 63 ] Mr. Faulkner is not a “youthful offender”. He is 32. But he still has a considerable number of years ahead of him.

To repeat what J. Green said in Zachar , Rehabilitation, like deterrence, has an instrumental purpose: the repudiation of criminal activity and transition to a pro-social lifestyle offers the best assurance of continuing societal protection. [ 64 ] I accept that Mr. Faulkner regrets his actions and he is remorseful. I accept that he knows it was a huge mistake and he is now on a “good” path.

[ 65 ] Therefore, based on ALL of the above, I impose the following sentence: Orders : s. 109(3) – Life DNA – s. 344 (primary) No VFS Disposition :

(1) Jail – s. 344 – 2 years 6 months, consecutive - s. 145 – 6 months, concurrent (taking totality into consideration) Minus 1 year 69 days of Remand credit Total: 1 year 111 days Warrant of Committal:

(1) Continue your job in the kitchen;

(2) Be given access to a medical doctor or psychologist; and

(3) Continue to be given your medication. That will be followed by probation, 18 months with conditions. Jean M. Whalen, JPC.