R. v. Proulx, 1995 ABCA 296

In the Court of Appeal of Alberta Citation: R. v. Proulx, 1995 ABCA 296 Date: 19950713 Docket: 95-15611 Registry: Calgary Between: Her Majesty The Queen Appellant - and - Gillis Francis Proulx Respondent The Court: The Honourable Mr. Justice Stratton The Honourable Madam Justice Veit The Honourable Mr. Justice Mason Memorandum of Judgment COUNSEL: G. Tomljanovic, for the Appellant A.

Hepner, Q.C., for the Respondent MEMORANDUM OF JUDGMENT THE COURT: [ 1 ] As a result of criminal activity from September 7th to September 18th, 1994, the accused/respondent was charged under a four count indictment and a 19 count indictment. [ 2 ] He pled guilty to seven counts of robbery and six counts of use of a firearm in connection with the robberies. The other ten counts were withdrawn by the Crown. [ 3 ] All seven robberies involved convenience stores, pizza outlets or gas stations. In six of the robberies the accused was masked and in two such cases there was a verbal threat to kill.

In one other robbery, being count one of the four count indictment, the victim was shot in the leg and seriously wounded by the accused. In most of the robberies cigarettes, food and relatively small amounts of cash were taken. [ 4 ] The accused was 20 years of age at the time of the offences and has a significant record of prior property related and assault convictions.

He seems to have no remorse for his actions or the injury to his victims. [ 5 ] The learned sentencing judge imposed a global sentence of 11 years and, under s. 741.2 of the Criminal Code , directed that the accused not be released for parole until after the expiration of one-half of his sentence. [ 6 ] The Crown’s trial submission was that the global sentence should be in the range from 15 to 20 years and therefore has appealed the sentence imposed.

The Crown’s appeal is based on two contentions, namely that the sentencing judge failed to apply s. 85(2) of the Code and, in any event, the global sentence failed to adequately address the need for individual and general deterrence. [ 7 ] For the reasons following we allow the Crown’s appeal. [ 8 ] As noted above, six of the convictions involve use of a firearm. These convictions are under s. 85(1) of the Code. Section 85(2) of the Code reads as follows:

85(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1). [ 9 ] The sentencing judge structured the 11 year global sentence as follows: - For the robbery involving the wounding of the victim: 10 years. - For the weapons offence related to that robbery: 1 year consecutive to the 10 years. - For the six other robbery offences, being counts 1, 4, 7, 10, 13 and 16 of the 19 count indictment: sentences of 7 years, 6 years, 4 years, 4 years, 3 years and 3 years respectively, all to be served concurrently. - For each of the firearm offences related to the robberies covered by counts 1, 4, 7, 10 and 13: 1 year consecutive to the robberies to which they relate but concurrent to the other sentences. [ 10 ] The Crown’s position is that s. 85(2) requires that each sentence imposed for a firearms offence must be consecutive to their respective indictable offences and consecutive to each other .

By this

interpretation, and given the 11 year sentence, a global sentence for this accused would be 16 years. [ 11 ] The accused’s counsel disagrees with the Crown’s

interpretation of s. 85(2) and in doing so relied on R. v. Jensen and Jensen (1982) 3 C.C.C. (3d) 47 (Alta C.A.) . In that case the Court concluded that that

section (then s. 83(2)) did not require a sentencing judge to impose a sentence consecutive to other consecutive sentences which the prisoner had not then begun to serve. In reaching that decision the Court felt that there was some ambiguity in the words of the

section and held that clearer words would be required for the Court to conclude otherwise than as above stated. [ 12 ] The Nova Scotia Court of Appeal in R. v. Maclean (1979) 1979 CanLII 2852 (NS CA) , 49 C.C.C. (2d) 552, had taken a contrary position by interpreting the subject

section so as to require that sentences imposed under s. 83(1), now 85(1), must be consecutive to the associated indictable offences and also consecutive to each other . Jones J.A. for the Court concluded that a person is “subject” to a sentence the moment it is imposed and that therefore in sentencing for a series of firearms convictions the offender is “subject” to each preceding section 85(1) sentence. [ 13 ] The Supreme Court of Canada in R. v. Boucher 1986 CanLII 15 (SCC) , [1986] 1 S.C.R. 750, agreed with the

interpretation in MacLean (supra) and thus overruled the Jensen and Jensen (supra) decision. [ 14 ] At page 750 the Court wrote: “There is no ambiguity in either the English or the French version of s. 83 of the Criminal Code , in our view, and we essentially agree with the

interpretation the Nova Scotia Court of Appeal gave the

section in R. v. MacLean …” [ 15 ] In R. v. Brown (1994) 1994 CanLII 29 (SCC) , 93 C.C.C. (3d) 97, the Supreme Court, in effect affirmed its decision in Boucher (supra). The issue on that appeal was the constitutionality of s. 85 which was upheld by the Court. By its decision the Supreme Court restored the trial judge’s calculation of the accused’s sentence which imposed s. 85 sentences as consecutive to each other. [ 16 ] In R. v. Harrel (1994) 1994 CanLII 8720 (ON CA) , 88 C.C.C. (3d) 412, the Ontario Court of Appeal noted that Boucher (supra) decided the question of the

interpretation of s. 85(2) and therefore followed that decision. [ 17 ] As earlier noted, the correct

interpretation of s. 85(2) would, when applied to the sentencing judge’s other sentences, increase the global sentence to 16 years. The question then arises whether that sentence is excessive in the light of the totality principle as applied to sentencing. In R. v. Ruber and Hedch (1985) 1983 ABCA 325 (CanLII) , 57 A.R. 360, (Alta C.A.), Kerans J.A., in writing for the court, said: “The proper approach in sentencing, as we have said, is to calculate a fit starting point on the basis of sentencing guidelines expressed by or extracted from the decisions of this court.

The specific sentence for the specific accused should then be adjusted on a balance of the compendium of aggravating and mitigating circumstances present in the case. The end of this process is not uniform sentences, for that is impossible. The end is a uniform approach to sentencing.” [ 18 ] The aggravating circumstances here include the number of robberies, the deliberate use of a rifle, the injuries to the victims, the use of a mask, the vulnerability of the victims, and the respondent’s lack of remorse.

In mitigation we note that the accused cooperated with the police following his arrest, confessed to the offences, and entered an early guilty plea. He also spent 3 1/2 months in pre-sentence custody. [ 19 ] We also note the accused’s extreme youth and, in crafting a fit sentence, we do not wish to destroy by an excessive sentence, any inducement to the accused to rehabilitate his life. [ 20 ] With the foregoing in mind, we conclude that a fit global sentence for this accused is 15 years and we so order.

To accommodate this conclusion we reduce the sentence imposed by the learned sentencing judge on the first count of the four count indictment from ten to nine years. In addition, as stated earlier, we imposed five additional consecutive one year sentences with respect to the firearm counts in accordance with the reasons above given. [ 21 ] In addition, we strike the sentencing judge’s order under s. 741.2 as we conclude that the 15 year global sentence now imposed is sufficient to give full effect to the need to stress individual and general deterrence in arriving at a fit sentence.

We will not disturb the lifetime firearms prohibition ordered by the sentencing judge.

[ 22 ] In the result, we allow the Crown appeal and vary the sentence imposed by the learned sentencing judge to the extent above indicated. JUDGMENT DATED calgary, Alberta, this 13th day of July A.D. 1995