R. v. Robinson, 2021 BCPC 526

Citation: R. v. Robinson 2021 BCPC 526 Date: 20210903 File Nos: 30678-1; 30711-2 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDY CHESTER ROBINSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: K. Schille Counsel for the Defendant: A. Turton, K.C. (via. telecommunication) Place of Hearing: Prince Rupert , B.C. Date of Hearing: September 3, 2021 Date of Judgment: September 3, 2021 [ 1 ] THE COURT: These are my reasons for sentence. I reserve the right to order a transcript and edit these reasons for sentence to

make them grammatically correct or more readable, but the result and substance of my decision will not change. [2] Randy Chester Robinson has pled guilty and is before the Court today for sentencing concerning two different courtinformations, one count on each. Concerning Information 30711-2, Count Number 1, he has pled guilty that on or about the 18th day ofJanuary, 2021, at or near Prince Rupert, in the Province of British Columbia, he committed robbery of Slickers Raingear Warehousecontrary to s. 344(1)(

b) of the Criminal Code; and concerning Information 30678-1, Count Number 1, he has pled guilty that on or aboutthe 24th day of November, 2020, at or near Prince Rupert, in the Province of British Columbia, he committed theft of merchandise, theproperty of Shoppers Drug Mart, of a value not in excess of $5,000 contrary to s. 334(

b) of the Criminal Code. [3] The Crown and the accused have come before the Court today with a joint submission on sentence. As set out by the SupremeCourt of Canada in the leading case of R. v. Anthony-Cook, 2016 SCC 43, I must apply what is commonly referred to as the publicinterest test in deciding whether I will agree to the joint submission or depart from it. I may only depart from the joint submission if theproposed sentence would bring the administration of justice into disrepute or if the proposed sentence is otherwise contrary to the publicinterest.

As noted in para. 34 of the Anthony-Cook decision: … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would leadreasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolutiondiscussions, to believe that the proper functioning of the justice system had broken down. … The Facts [4] Concerning Information 30711-2, at approximately 4:40 p.m. on January 18, 2021, staff at the Slickers Raingear store assistedan intoxicated Mr. Robinson. He took some items to the till.

The employees thought he would purchase them, but instead, he grabbedone of the employees by the arm and demanded that she open the cash register. She was unable to do so. He then tried to do so. He wasalso unsuccessful, left the store, and the police were called. The goods that he walked out of the store with had a value of just over$1,000. [5] Police subsequently arrested Mr. Robinson after a concerned individual called the police saying that Mr. Robinson was trying tosell Slickers’ goods at 50 percent off on Facebook. Mr. Robinson had posted his contact information on Facebook, as well.

After Mr.Robinson’s arrest, police created a photo pack which included a photo of Mr. Robinson. The photo pack was presented to the storeemployees, who positively identified Mr. Robinson. [6] In relation to Information 30678-1, Mr. Robinson walked into the Shoppers Drug Mart in Prince Rupert, British Columbia, atabout 11:30 a.m. on November 24, 2020. Mr. Robinson removed the security wire on an electric toothbrush and he walked out of thestore without paying for the electric toothbrush. The toothbrush had a value of approximately $250. A store surveillance video systemrecorded the theft. Mr.

Robinson was subsequently identified from the video, the information was sworn, and a warrant for his arrestwas issued. [7] Mr. Robinson has been in custody since January 19, 2021, 228 actual days. With a pre-sentence credit rate of 1.5 per actual day,he would receive a credit of 342 days. The joint submission before the Court today is that of time served being the equivalent of 342 daysplus a further two years of probation. Ms. Turton tells me that the plan is for Mr.

Robinson to go to the Trinity House here in PrinceRupert and get treatment for his substance abuse. [8] There is no doubt in my mind whatsoever that Mr. Robinson is struggling personally. Mr. Robinson feels horrible about how heacts when he is intoxicated, and he understands he needs to someway, somehow, not only come to grips with the demons of hisaddictions but overcome them. It is very positive that Mr. Robinson wishes to go into a 90-day residential treatment program and try tofigure that out for himself.

He will learn that it will be a daily exercise for the rest of his existence on the planet Earth, but he will be amuch happier person if he successfully completes the program and follows through. [9] Mr. Robinson is of the Tsimshian First Nation. He is 41 years of age. He has a two-page criminal record, which includes severalconvictions for assault, uttering threats, and Mr.

Robinson has entered at least three s. 810 of the Criminal Code recognizances allegingthat people had reason to fear him. [10] When I look at the purposes and principles of sentencing set out in s. 718, 718.1, and 718.2 of the Criminal Code, including theadmonition in s. 718.2(

e) that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistentwith the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstancesof Aboriginal offenders," I cannot help but think, based on what I have been told by Ms. Turton, that Mr. Robinson is a product of thesystem in Canada that has been in place for over a hundred years that makes it difficult for Mr.

Robinson to get a fair shake out of life,given that his life began in such a negative spot. [11] The system in Canada that makes it difficult for Indigenous people like Mr. Robinson to get a fair shake out of life wasconsidered by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and then 13 years later in R.v. Ipeelee, 2012 SCC 13.

I note that Ipeelee, para. 60, teaches sentencing judges such as myself that we must take: … judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues totranslate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and ofcourse higher levels of incarceration for Aboriginal peoples. … [12] These matters on their own do not necessarily justify a different sentence for Indigenous offenders.

Instead, they provide thenecessary context for understanding and evaluating the case-specific information related to the person being sentenced. In Gladue, theSupreme Court of Canada taught that sentencing judges need to undertake the process of sentencing Indigenous offenders differently toendeavour to achieve a truly fit and proper sentence in each particular case. In the second half of para. 37 of Gladue, the court furtherinstructed sentencing judges that they:

… should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique , and different from those of non - aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. [ 13 ] Finally, in paras. 58​​​–64 of Gladue , I not e that the purpose of s. 718.2 (

e) of the Criminal Code is to reduce the over-incarceration of Indigenous offenders in Canadian jails. [ 14 ] So, while some might suggest that a time-served sentence in this particular case – given Mr. Robinson's previous interaction with the criminal justice system and the nature of the offences he has pled guilty – is on the lenient side, I disagree. It is an appropriate sentence, and I believe it is suitable not only for all the reasons Ms. Turton set out but also because the proposed sentence will provide Mr.

Robinson with assistance to become a better human being and a contributing member of society. [ 15 ] Sentencing is rarely a simple process. Based on what I have been told by the BC Prosecution Service and defence counsel in this case, I agree to the joint submission that counsel has proposed. So, while I acknowledge that restorative justice sentences do not work for everybody, the bottom line is I am prepared to give Mr. Robinson the opportunity today to move on with his life in a positive manner. [ 16 ] So, Mr.

Robinson, you must comply with a probation term, but before I get there, what I am going to do is I am going to sentence you as follows. The term of imprisonment I would have imposed before granting any credit -- [ 17 ] THE CLERK: Are we dealing with both files, Your Honour? [ 18 ] THE COURT: No, this is just going to be on 30711-2, Count 1. Sorry -- [ 19 ] THE CLERK: Okay. [ 20 ] THE COURT: -- I should have made that clear. [ 21 ] Is 342 days. The actual time spent in custody is 228 days. I am granting you credit at a rate of 1.5. The total credit I am granting is 342 days.

Therefore, the sentence imposed is 342 days' time served plus two years' probation and we will get back to the terms of that probation shortly. [ 22 ] In relation to Information 30678-1, there will be a concurrent sentence, Madam Clerk. [ 23 ] The term of imprisonment I would have imposed before granting any credit is 30 days. The actual time spent in custody is 228 days. I am granting you credit at a rate of 1.5. The total credit I am granting is 342 days. Therefore, the sentence imposed is 30 days' time served. [ 24 ] So that is sentence is done. Your other sentence is done but for the probation.

The probation will only attach to Information 30711-2. The terms of that probation, sir, are going to be as follows. [ 25 ] You must comply with the probation order for a term of 24 months. [ 26 ] The conditions are, 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

Do you understand that, sir? [ 27 ] THE ACCUSED: Yes, Your Honour. [ 28 ] THE COURT: You agree to do that, sir? [ 29 ] THE ACCUSED: Yes, Your Honour. [ 30 ] THE COURT: Thank you. [ 31 ] 2103, you must report by telephone to a probation officer at the Prince Rupert Community Corrections Office by 3:00 p.m. on Monday -- sorry, Tuesday, September 7, 2021. The address and telephone number for the Prince Rupert Community Corrections Office will be placed into your probation order for you.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report. After that, you must report as directed by your probation officer. Do you understand that, sir? [ 32 ] THE ACCUSED: Yes, Your Honour. [ 33 ] THE COURT: You agree to do that, sir? [ 34 ] THE ACCUSED: Yes, Your Honour. [ 35 ] THE COURT: 2202, when first reporting to your probation officer, you must provide them with the address where you live and your telephone number.

You must not change your address or telephone number without notifying your officer in writing at least two days in advance of any change. Do you understand that condition, sir? [ 36 ] THE ACCUSED: Yes, Your Honour. [ 37 ] THE COURT: Do you agree to that condition?

[ 38 ] THE ACCUSED: Yes, Your Honour. [ 39 ] THE COURT: The most important thing you can do, sir, is to let them know that you are going to be going to the Trinity Men's Recovery House, okay? [ 40 ] THE ACCUSED: Okay. [ 41 ] THE COURT: Let them know that straight away in the first phone call that you are registered there and you are supposed to be going in on September 15, okay? [ 42 ] THE ACCUSED: Yes, Your Honour. [ 43 ] THE COURT: The exception is as follows to that condition, Madam Clerk. [ 44 ] THE CLERK: To the reporting condition, when first reporting? [ 45 ] THE COURT: Sorry, to the address condition. [ 46 ] So the exception to having provided written notice two days in advance is you are permitted to attend the live-in program at 333 Trinity Men's Recovery House beginning September 15, 2021.

So we will put that right in the probation order so the probation officer can look at it and he knows that you have committed to getting that program. You let him know you are registered and you are supposed to start September 15, okay? [ 47 ] THE ACCUSED: Yes, Your Honour. [ 48 ] THE COURT: Makes sense? [ 49 ] THE ACCUSED: Yes. [ 50 ] THE COURT: You are good with that wording, Mr. Schille? [ 51 ] CNSL K. SCHILLE: That works for Crown, Your Honour. [ 52 ] THE COURT: Ms. Turton, you are okay with that wording? [ 53 ] CNSL A.

TURTON: No objection, Your Honour. [ 54 ] THE COURT: Thank you. [ 55 ] You must have no contact or communication directly or indirectly with Sandra Conner, Kate Lindsay, John Lund. If you see one or more of them, you must immediately leave their presence without words or gestures. Do you understand that, sir? [ 56 ] THE ACCUSED: Yes, Your Honour. [ 57 ] THE COURT: Do you agree to do that, sir? [ 58 ] THE ACCUSED: Yes, Your Honour. [ 59 ] THE COURT: 2005, you must not go to or be within 30 metres of the Shoppers Drug Mart in Prince Rupert, British Columbia.

Do you understand that, sir? [ 60 ] THE ACCUSED: Yes, Your Honour. [ 61 ] THE COURT: Do you agree to do that, sir? [ 62 ] THE ACCUSED: Yes, Your Honour. [ 63 ] THE COURT: Also 2005-1, Madam Clerk, but a separate condition. [ 64 ] You must not go to or be within 30 metres of any place where Sandra Conner, Kate Lindsay, or John Lund live, work, attend school, worship, or happen to be. If you see one or more of them, you must leave their presence immediately without any words or gestures.

Do you understand that, sir? [ 65 ] THE ACCUSED: Yes, Your Honour. [ 66 ] THE COURT: You agree to do that, sir? [ 67 ] THE ACCUSED: Yes, Your Honour. [ 68 ] THE COURT: Thank you. [ 69 ] A slightly modified 2005-2, you must not go to or be within 30 metres of Slickers Raingear Store located at 906-2nd Avenue West, Prince Rupert, British Columbia. Do you understand that, sir? [ 70 ] THE ACCUSED: Yes, Your Honour.

[ 71 ] THE COURT: Do you agree to follow that, sir? [ 72 ] THE ACCUSED: Yes, Your Honour. [ 73 ] THE COURT: So picturing in your mind where the recycling depot is, and the carwash, and then Slickers is, right? [ 74 ] THE ACCUSED: Yes. [ 75 ] THE COURT: You just avoid that whole side of the street completely. Go to 3rd Avenue if you need to go by because, even if you are the other side of the street on 2nd, you do not want to accidentally get within 30 metres of Slickers, right? So it will add 150 metres to your walk, but just go down 3rd Avenue. Avoid it altogether.

Make sense? [ 76 ] THE ACCUSED: Yes, Your Honour. [ 77 ] THE COURT: Okay. [ 78 ] Because you have told me today that you are going to go into a rehab treatment centre and because you have told me today you recognize the ills of the drugs and alcohol in your life, I am going to do something I do not normally do which is impose the non- consume or possession aspect of this particular -- of those two substances when you are not in your home. So, 2402, you must not possess or consume alcohol -- and it is slightly modified, Madam Clerk. [ 79 ] THE CLERK: Thank you. [ 80 ] THE COURT: Or drugs -- sorry.

You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription from a licenced medical doctor in the Province of British Columbia, unless you are inside your residence or while transporting it sealed and unopened directly to your residence. You must not be intoxicated in any public place. Do you understand that, sir? [ 81 ] THE ACCUSED: Yes, Your Honour. [ 82 ] THE COURT: Can you follow that? [ 83 ] THE ACCUSED: Yes, Your Honour. [ 84 ] THE COURT: Will you follow that? [ 85 ] THE ACCUSED: I will, Your Honour, yes. [ 86 ] THE COURT: All right.

You are okay with that wording, Mr. Schille? [ 87 ] CNSL K. SCHILLE: Yes, Your Honour. [ 88 ] THE COURT: Ms. Turton, you are okay with that wording? [ 89 ] CNSL A.

TURTON: Yes, Your Honour. [ 90 ] THE COURT: Thank you. [ 91 ] 2610, you must not possess directly or indirectly any weapon as defined by the Criminal Code , including: firearms, ammunition, crossbows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation of all the above, including any compressed airguns or BB/pellet guns; or any related authorizations, licences, and registration certificates, and you must not apply for any of these.

Do you understand that, sir? [ 92 ] THE ACCUSED: Yes, Your Honour. [ 93 ] THE COURT: Do you agree to follow that, sir? [ 94 ] THE ACCUSED: Yes, I do, Your Honour. [ 95 ] THE COURT: All right.

Do you currently have firearms, ammunition, or weapons in your possession? [ 96 ] THE ACCUSED: No, I don't, Your Honour. [ 97 ] THE COURT: Is anybody holding onto any firearms, ammunition, or weapons for you? [ 98 ] THE ACCUSED: No, Your Honour. [ 99 ] THE COURT: Do you possess a Canadian firearms licence otherwise known as a Possession and Acquisition Licence? [ 100 ] THE ACCUSED: No, I don't, Your Honour. [ 101 ] THE COURT: All right.

So, counsel, I am not going to impose a surrender condition. [ 102 ] 2616, you must not possess any knife outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows: with the prior written permission of your probation officer. You must carry the permission, which may be in

electronic format, when you possess knives outside your residence. [ 103 ] That is 2616, sorry, Madam Clerk. [ 104 ] THE CLERK: Thank you. [ 105 ] THE COURT: Do you understand that condition, sir? [ 106 ] THE ACCUSED: Yes, Your Honour. [ 107 ] THE COURT: Do you agree to follow that, sir? [ 108 ] THE ACCUSED: Yes, I do, Your Honour. [ 109 ] THE COURT: Pursuant to s. 109 of the Criminal Code of Canada , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years from today; and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

Do you understand that, sir? [ 110 ] THE ACCUSED: Yes, Your Honour. [ 111 ] THE COURT: Do you agree to follow that, sir? [ 112 ] THE ACCUSED: Yes, I do, Your Honour. [ 113 ] THE COURT: Keep in mind if you breach that, you can be charged with a separate criminal offence of breaching that prohibition order, okay, sir? [ 114 ] THE ACCUSED: Okay, Your Honour. [ 115 ] THE COURT: Count Number 1 on Court Information 30711-2 is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you.

You must attend at the Prince Rupert Royal Canadian Mounted Police station in Prince Rupert, British Columbia, by no later than November 30, 2021, at 4:00 p.m. and submit to the taking of the samples. This order is valid until executed. What you will want to do is when you get back to Prince Rupert, either go to the RCMP station or phone them and find out when they do their DNA testing because they might not do it every day of the week, okay, and make an appointment and go in and get it done.

Do not forget. [ 116 ] THE ACCUSED: Okay. [ 117 ] THE COURT: Okay? [ 118 ] THE ACCUSED: Yes, Your Honour. [ 119 ] THE COURT: Very important because you do not want, again, to be in breach because then you can be charged with breaching, right? [ 120 ] THE ACCUSED: Right. [ 121 ] THE COURT: Okay. Any questions about any of those conditions at all? [ 122 ] THE ACCUSED: No, Your Honour. [ 123 ] THE COURT: You understand them all? [ 124 ] THE ACCUSED: Yes, I do, Your Honour. [ 125 ] THE COURT: Do you agree to follow them all? [ 126 ] THE ACCUSED: Yes, I do, Your Honour. [ 127 ] THE COURT: Mr.

Schille, did I miss any of them from your perspective? [ 128 ] CNSL K. SCHILLE: No, Your Honour. [ 129 ] THE COURT: Ms. Turton, anything that I need to clarify from your point of view? [ 130 ] CNSL A. TURTON: No, Your Honour. [ 131 ] THE COURT: All right.

Pursuant to s. 737(2.1) of the Criminal Code , I am satisfied that because of the fact that you have spent the last seven-plus months in custody that the victim fine surcharge would cause an undue hardship to you and, accordingly, I order that you pay no surcharge, and that is in relation to both files, Madam Clerk. [ 132 ] THE CLERK: Thank you, Your Honour. [ 133 ] CNSL K. SCHILLE: And, Your Honour, Crown then enters a stay of proceedings on Count 2 and Count 3 on Information 30711-2.

[ 134 ] THE COURT: Thank you very much. [ 135 ] I am going to waive the requirement that Mr. Robinson sign the probation order, but -- sorry, not sign, that a justice of the peace read him the probation order, but I am requiring that he sign it. [ 136 ] So, before they let you out of custody, sir, you are going to get the probation order.

You have got to sign it, okay? [ 137 ] THE ACCUSED: Okay, yes. [ 138 ] THE COURT: So that is the most important thing you are going to do from now on Tuesday at three o'clock. [ 139 ] THE ACCUSED: Report to my bail supervisor -- [ 140 ] THE COURT: Exactly. [ 141 ] THE ACCUSED: -- and go -- and go -- and call the RCMP detachment about how -- when DNA samples are done. [ 142 ] THE COURT: Exactly. Thank you very much, sir. You can knock on the door and let them know you are done. [ 143 ] THE ACCUSED: Thanks very much, Your Honour. [ 144 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)