HIS MAJESTY THE KING - v. -, 2023 SKKB 174

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 174 Date: 20 23 08 18 Docket: CRM-RG-00260-2020 and CRM-RG-00263-2020 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - JARRETT THOMAS POITRAS Counsel: Andrew Campbell and Cheyenne Esmond for the Crown Sharon Fox and Cassan Geiler for the Accused JUDGMENT MCMURTRY J. August 18, 2023 [ 1 ] On June 17, 2021, I found Jarrett Thomas Poitras guilty of six charges relating to the robbery of a convenience store on the Muscowpetung First Nation. The robbery occurred on March 4, 2019. Mr.

Poitras failed to attend for sentencing on June 18, 2021, so it is my duty to sentence him now. [ 2 ] At the sentencing hearing, Mr. Poitras pled guilty to seven further charges. These charges relate to another robbery of the same store, the Muscowpetung Stop-N-Go, on July 19, 2019, theft of a vehicle and a break and enter on the same date, and failure to attend court on June 18, 2021. [ 3 ] The charges for which he has pled guilty or been convicted are as follows: 1. Indictment dated June 14, 2021: That on or about March 4, 2019, at or near Muscowpetung First Nation: a.

Did with intent to commit an indictable offence, have his face covered, contrary to s. 351(2) of the Criminal Code, RSC 1985, c C- 46 [Count 1]; b. Was an occupant of a motor vehicle to wit: a Jeep Cherokee, in which he knew that there was at the time a firearm to wit: a shotgun, contrary to s. 94 of the Criminal Code [Count 2]; c. Did use a firearm to wit: a shotgun, in robbing Muscowpetung Stop-N-Go of monies and tobacco products, contrary to s. 344(1) (a.1) of the Criminal Code [Count 3]; d.

Did without lawful excuse, handle a firearm, to wit: a shotgun, in a careless manner contrary to s. 86(1) of the Criminal Code [Count 4]; e. Did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code [Count 5]; f. Did without lawful excuse, point a firearm at Shantel McNabb, contrary to s. 87 of the Criminal Code [Count 6]. 2. Indictment dated October 15, 2020: That on or about July 23, 2019, at or near Muscowpetung First Nation:

a. Did use a firearm to wit: a shotgun in robbing Muscowpetung Stop-N-Go of monies and tobacco products, contrary to s. 344(1)(a.1) of the Criminal Code [Count 1]; b. Did possess a firearm, to wit: a shotgun without being the holder of a licence under which he may possess it, contrary to s. 91(1) ofthe Criminal Code [Count 5]; c. Did with intent to commit an indictable offence have his face covered, contrary to s. 351(2) of the Criminal Code [Count 7]; d.

Did break and enter a certain place, to wit: a dwelling house situate at House 57 Muscowpetung First Nation and did steal a firearmlocated in it, contrary to s. 98 of the Criminal Code [Count 9]; e. Did possess a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code,contrary to s. 117.01(1) of the Criminal Code [Count 11]; f. Did without lawful excuse, point a firearm to wit: a shotgun at Merrick Benjoe and Curtis Cappo, contrary to s. 87 of the CriminalCode [Count 12]. 3. Information 991164134: THAT HE, the said Jarrett T.

Poitras, on or about the 18th day of June, A.D. 2021 at or near Regina, Saskatchewan, did without lawfulexcuse, fail to attend Court as required by the Court, contrary to section 145(2)(

b) of the Criminal Code. Offence of Robbery [4] For both robberies, the accused committed an offence under s. 343(

d) of the Criminal Code.

Section 343(d)reads as follows: 343 Every one commits robbery who … (

d) steals from any person while armed with an offensive weapon or imitation thereof. [5] At the time of both offences, the Criminal Code provided for a minimum penalty of four years. The Crowndoes not rely on the minimum penalty. The maximum penalty is life in prison.

Relevant Sentencing Provisions in the Criminal Code [6] The purpose and principles of sentencing are found in the Criminal Code beginning at s. 718, which reads: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [7] Also relevant is s. 718.1, which sets out the fundamental principle of sentencing: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [8] In R v Nasogaluak, 2010 SCC 6 at para 41, [2010] 1 SCR 206, the Supreme Court of Canada commented “thatthe principle of proportionality is central to the sentencing process”. [9] The court further discussed the proportionality principle, as follows: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence.

In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring).

Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s

condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [43] The language in ss. 718 to 718.2 of the Code [Criminal Code] is sufficiently general to ensure that sentencing judges enjoy a broaddiscretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a“fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives ofsentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M.(C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and itfalls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

Therelative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences forsimilar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigatingfactors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [45] The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectivesenshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code. [10] In R v Ratt, 2021 SKCA 7 at para 73, the Court of Appeal discussed proportionality in relation to “the degree ofresponsibility of the offender”: [73] There is also a more nuanced element to the determination of an offender’s degree of responsibility, because the concept ofresponsibility cannot be completely separated from the offender’s personal circumstances.

The concept of responsibility takes intoaccount such considerations as the level of mens rea in the offence definition, the offender’s history and background, his or her mentalcapacity, and the motive or justification for committing the offence (see, for example, R v Gejdos, 2017 ABCA 227 at paras 39–40,[2017]12 WWR 63). In the case of Indigenous offenders, s. 718.2(

e) requires particular attention to the systemic and background factorsthat have shaped the offender’s personal circumstances, because those factors may have an impact on the offender’s moral culpability (Rv J.P. 2020 SKCA 52 at para 65, 62 CR (7th) 328 [J.P.]). [11] All victims in these robberies are Indigenous.

Thus, I must consider s. 718.04: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personalcircumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectivesof denunciation and deterrence of the conduct that forms the basis of the offence. [12] The following provisions in s. 718.2 set out other sentencing principles: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [13] In R v Charles, 2021 SKCA 114, the Court of Appeal summarized the purpose of the sentencing principle foundat s. 718.2(e): [20]

Section 718.2(

e) requires sentencing judges to consider all available sanctions other than imprisonment that are reasonable in thecircumstances, while paying particular attention to the circumstances of Indigenous offenders. This Court has, on many occasions,

emphasized that s. 718.2(e), interpreted in light of the Supreme Court’s decisions in Gladue [ (SCC), [1999] 1 SCR 688]and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, requires that the sentencing of Indigenous offenders be approached in a different way(see, for example: Chanalquay [2015 SKCA 141]; R v Whitehead, 2016 SKCA 165, 344 CCC (3d) 1 [Whitehead]; R v Delorme, 2017SKCA 3; R v McKay, 2019 SKCA 129; R v J.P., 2020 SKCA 52, 62 CR (7th) 328 [J.P.]; R v Ratt, 2021 SKCA 7; R v Kishayinew, 2021SKCA 32; and R v Charles, 2021 SKCA 75, [2021] 7 WWR 734 [Charles]). [21] As part of this approach, a judge sentencing an Indigenous offender must consider the unique systemic or background factors thatmay have played a

part in bringing the offender before the courts, as well as the types of sentencing procedures or sanctions that may beappropriate in the circumstances for the offender because of his or her Indigenous heritage (Gladue at para 66; Chanalquay at para 34;Charles at para 37). [22] While s. 718.2(

e) does not dictate a particular result or necessarily require the reduction of a sentence just because an offender isIndigenous, the analysis mandated by it is an integral part of the reasoning which leads to a fit sentence (Gladue at para 88; Chanalquayat paras 34–37). Part of that analysis is a consideration of the extent to which an Indigenous offender’s unique circumstances – includingbackground and systemic factors – may have had a bearing on his or her moral culpability (Ipeelee at paras 71 and 73; Whitehead atparas 56–58; Chanalquay at para 40).

This is required even where the nature of the offence calls for a sentence of incarceration, asJackson J.A., citing J.P., explained in Charles: [41] In J.P., Leurer J.A. emphasized that even if a fit sentence requires incarceration, the “requirement for proportionality demands thatthe impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determiningthe period of incarceration” (at para 63).

This is so because a sentencing judge must account for “any factor affecting moralblameworthiness (whether by increasing or decreasing it)” and those factors “must be given weight in order to impose a fit sentencebased on the principle of proportionality” (emphasis in original, at para 64). [14] Because I am sentencing the accused for numerous offences, I must also be mindful of s. 718.3, the relevantportions of which read: 718.3… Cumulative punishments

(4) The court that sentences an accused shall consider directing … (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, … [15] At the same time, s. 718.2(c), which states “where consecutive sentences are imposed, the combined sentenceshould not be unduly long or harsh”, must also be considered. This subsection codified the “totality principle”, which was discussed asfollows in R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 42: 42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form ofthe "totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentencesfor multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.

A.Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects. [16] Finally, s. 719 provides for the appropriate calculation of remand time: Commencement of sentence 719

(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides. Time at large excluded from term of imprisonment

(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to anyprovision of this Act does not count as part of any term of imprisonment imposed on the person. Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in

custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. Relevant Case Law on Sentencing for Robbery [17] The Court of Appeal discussed the sentencing range for robbery, in R v Johnson, 2021 SKCA 17 [Johnson] andin R v Kirklon, 2015 SKCA 67, 460 Sask R 233 [Kirklon].

In Johnson at para 37, the court suggested that three years was at the low endof the range for robberies of persons in vulnerable jobs, like convenience store clerks: [37]…the sentencing judge’s determination that, given the seriousness of the offences, a custodial term was required, even taking intoaccount “all of Ms. Johnson’s difficulties” was consistent with a long line of cases in which this Court has repeatedly held that offenderswho commit robberies against vulnerable commercial establishments or victims should be subject to serious penalties.

That is to say,such offences will almost invariably be visited with lengthy prison terms (see for example: Cappo [R v Cappo (1994), (SK CA), 120 Sask R 309]; R v Severight (1996), (SK CA), 137 Sask R 306 (CA); R v Sangwais, 2000 SKCA 49, 189Sask R 291; R v Warkentin (1994), (SK CA), 125 Sask R 236 (CA); and R v Kirklon, 2015 SKCA 67, 460 Sask R233).

In fact, in Gordon [R v Gordon, 2011 SKCA 130, 375 Sask R 312], this Court suggested that because of the danger to life andsafety inherent in the offence of robbery and the particular vulnerability of taxi drivers and convenience store clerks to such offences, asentence of three years imprisonment represents “the lower end of the scale” (at para 20). [Emphasis added] [18] In Kirklon at para 16, the court held that the sentencing range for commercial robberies, in that case of apharmacy, is between five and seven years.

The offender, who was described by the sentencing judge as incorrigible, had a record of 11previous robberies. The Court of Appeal varied the sentence from six years to eight years. [19] In R v Stone, 2019 SKCA 123, the offender was sentenced to seven years’ imprisonment on each of two robberycharges, concurrent with each other. Both robberies occurred during a single home invasion, while the offender was armed with amachete. The sentencing judge said the offender had a lengthy criminal record and was a member of a street gang.

The Court of Appealupheld the original sentence. [20] In R v Castle, 2009 SKQB 407, 345 Sask R 95 Dawson J. sentenced the offender to 8 years for 2 robberies ofbanks, committed 5 days apart and 6 weeks after his release on a sentence of 4 and one half years for 13 counts of robbery. No weaponwas involved in the two robberies. [21] In R v Daniels, 2001 SKCA 14, 203 Sask R 101 the offender committed two robberies of financial institutions,four years apart. In the second, he told the bank teller he had a gun. He was on parole for a robbery committed between the two in issueat the time of the second robbery.

The Court of Appeal raised his sentence to eight years. Aggravating and Mitigating Factors [22] I consider the following to be relevant aggravating factors for sentencing: 1. Criminal Record: the most significant convictions on his record are for possession, transporting and carrying firearms, for which hereceived a conditional sentence. The sentence suggests that these offences were less serious. Otherwise, Mr. Poitras has a minimalrecord, which includes a breach of the conditional sentence order. 2. Firearms: the use of a firearm in both robberies is both aggravating and the subject of discrete charges.

The firearms were loadedand pointed at four different people during the two incidents. Moreover, Mr. Poitras was subject to a court order prohibiting him frompossessing firearms because of previous firearms convictions. 3. Vulnerable Victims: Saskatchewan courts have often noted the vulnerable position of convenience store clerks. Their inherentvulnerability is illustrated in this case where the same store was robbed twice in four months. 4.

Victim Impact: the victim impact statements from the clerks in the Stop-N-Go on March 4 and July 23, 2019, and from ChristopherMcDougal, along with the video evidence and testimony of Mr. McDougal, bear witness to their fear during the two incidents. Further,as Indigenous women were victims in the two robberies and the victims were significantly affected by the offences, ss. 718.04 and718.2(1)(iii.1) of the Criminal Code deem these factors to be aggravating. 5. The Crown has not asked that Mr. Poitras be considered in a position of trust towards Mr. McDougal, his nephew.

However, beingcoerced into participating in the first robbery by his uncle was traumatic for him and an aggravating factor. [23] I consider the following to be relevant mitigating factors for sentencing: 1. Mr. Poitras’ Indigenous background and Gladue (R v Gladue, (SCC), [1999] 1 SCR 688] factors, discussedbelow.

2. The lack of violence in his criminal record. 3. Mr. Poitras has taken appropriate responsibility for his role in these offences. He showed his remorse by offering an apology to the victims that acknowledged his actions. While he pled guilty to the charges relating to the July 23, 2019 robbery and break and enter, the pleas came at the last minute.

Gladue Factors [ 24 ] As held by Richards C.J.S. in R v Chanalquay , 2015 SKCA 141 at para 38 , [2016] 4 WWR 242: [38]… The question in sentencing an Aboriginal offender, as for other offenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para 80 ) [ 25 ] Mr. Poitras’ background was discussed by the writer of the pre-sentence report [PSR]. Mr. Poitras is 29 years old. He was raised on the Muscowpetung First Nation with both parents.

He is the second oldest of four children. [ 26 ] Both parents were employed during his youth, however, Mr. Poitras reported to the PSR writer that his parents abused alcohol and other substances, causing conflict in the home and violence perpetrated by his father against his mother and the children.

His parents and grandparents went to residential schools and both parents told the PSR writer that they and their children were adversely affected by the experience. [ 27 ] While his basic needs were met, there was no money for extra-curricular activities, and, at that time, the educational and recreational facilities at Muscowpetung were poor. [ 28 ] Mr. Poitras moved out of his parents’ home into his girlfriend’s home when he was 13 years of age. He and his girlfriend stayed together until 2015, raising a daughter. Thereafter, he was homeless, until he began living with another girlfriend.

He reported they abused alcohol and drugs together and he was violent towards her. They had a daughter who Mr. Poitras raised alone for a year, until his incarceration in July 2019. In 2018, he began a new relationship which has endured to the present. [ 29 ] In February 2019, Mr. Poitras’ brother was murdered. The family received the details of the murder from police just days before the first robbery. Mr. Poitras said he was angry, grief-stricken, and susceptible to persistent thoughts of self-harm in 2019. He is less so now, but he believes he would benefit from counselling and anger management. [ 30 ] Mr.

Poitras left school in Grade 11 to work to support his daughter. He said he had to leave Muscowpetung to find work, but he worked steadily until 2016, when his substance abuse issues worsened. He gambled recklessly and owes thousands of dollars to credit card companies and Saskatchewan Government Insurance. [ 31 ] At the time of both offences, Mr. Poitras was under the influence of alcohol, lysergide [LSD], and methamphetamines. He reported having abused alcohol since the age of seven. His use of LSD, cocaine, and methamphetamines began in his twenties.

He completed a 30-day treatment program in 2017 but returned to using. [ 32 ] Mr. Poitras reports experiencing racism at school, while searching for work and from every level of the criminal justice system, although he provided no details of his experiences. [ 33 ] The PSR writer concluded that Mr. Poitras is at high risk to reoffend because of employment instability, family relationships, peers and companions, substance abuse and attitude. However, the writer described him as cooperative and engaged throughout their interviews and the risk assessment. He also reported that Mr.

Poitras took full responsibility for his offences and the consequent harm to the victims of both offences. [ 34 ] In determining Mr. Poitras’ moral culpability for this violent offence, committed after abusing alcohol, LSD and methamphetamine, I must consider the impact of his particular upbringing. It is noteworthy that he left his parents’ home at a very young age because of his parents’ abuse of alcohol and the violence perpetrated on the family by his father. He grew up quickly, becoming a father in his early teens.

He left school and worked to support his family until his substance abuse overwhelmed his desire to work. [ 35 ] Perhaps most significantly, his brother violently died a month before the first robbery. Mr. Poitras’ minor criminal record before 2019 illustrates the profound effect on him of his brother’s death. [ 36 ] Mr. Poitras is the child and grandchild of residential school survivors. The impact of that experience on Mr. Poitras is hinted at in his mother’s interview with the PSR writer.

Not surprisingly, beyond attributing the violence in the home to the residential school experience, his mother and father “found it difficult to discuss all the effects of their personal trauma and intergenerational trauma; however, they both were adamant they and their children had been adversely affected as a result” (PSR at p 10). Evidence on the Sentencing Hearing March 4, 2019 [ 37 ] At trial, the accused’s nephew, Christopher McDougal, testified that he was at his grandmother’s home in Fort Qu’Appelle, Saskatchewan when the intoxicated accused arrived. His grandmother asked Mr.

McDougal to drive the accused to his home on the Muscowpetung First Nation from her home in Fort Qu’Appelle. [ 38 ] The accused had arrived in his mother’s Jeep Cherokee. Two females were also in the vehicle. On the drive to Muscowpetung, Mr. McDougal noticed that one of the females took a firearm from a bag in the backseat. The firearm was a pump style shotgun. It was black with electrical tape for a stock. The accused pumped the firearm releasing shells while Mr. McDougal was driving

the car. [ 39 ] The accused took over driving near the First Nation. He and the women asked Mr. McDougal to flip up the licence plate of the car so the vehicle could not be identified. [ 40 ] The accused said he wanted to rob the dispensary, but it was closed. Mr. McDougal tried to talk him out of it, but the accused drove next door to a convenience store called the Stop-N-Go. Mr. McDougal testified that it was a scary situation. His uncle was intoxicated, drinking rum in the car, and he had a firearm. Mr. McDougal was 19 years old at the time. [ 41 ] Mr.

McDougal said the accused got out of the Jeep Cherokee with a firearm in his hand. He also saw the female he knew as “Grey” exit from the backseat with a machete. Both had their faces masked. [ 42 ] Shantel McNab and Conrad Cappo were in the store. Ms. McNab, the store cashier, testified a Jeep Cherokee circled the store three times before parking. [ 43 ] Ms. McNab and Mr. Cappo saw, and a video shows, a male and a female enter the store. They both testified the male waved the shotgun around and at them both. This is evident in the video. Ms. McNab and Mr.

Cappo testified the male told them this was a stick-up, or a hold-up. A shell fell out of the gun, but the accused picked it up and reloaded the firearm. He demanded money and cigarettes. [ 44 ] It is apparent in the video that Ms. McNab was terrified. She did as the accused asked and put all the bills from the cash register into a white grocery bag. While he pointed a gun at her, she gave the bag to the accused. She then took tobacco products from two cupboards, put them in another white plastic bag and gave it to the accused, as well.

The accused and the woman, who had been standing by the front door holding the machete, left the store. [ 45 ] Mr. McDougal testified that Grey exited the store first. The accused left after her, carrying two white bags that he threw on Mr. McDougal’s lap. The bags contained tobacco products—cigarette packs and tobacco pouches—and Canadian currency. The accused asked Mr. McDougal to count the money, although one of the women took it from him. [ 46 ] Shortly after, the Jeep Cherokee ran out of gas.

The accused found someone to drive them to his parents’ home, and he also purchased and consumed IV drugs along the way. Mr. McDougal testified he prayed they would get home safely. He was angry with his uncle for involving him in the robbery. [ 47 ] In his parents’ home, the accused became erratic. He began throwing shotgun shells around the living room, hitting a female unknown to Mr. McDougal.

The accused spoke of wanting a shoot-out with police. [ 48 ] In a victim impact statement [VIS], dated July 21, 2021 (Exhibit P-5 at the sentencing hearing), Christopher McDougal wrote about the emotional toll of his uncle’s actions in entrapping him in this incident. On the one hand, his uncle had encouraged him to stay away from drugs and alcohol and live a healthy life. On the other hand, his uncle coerced him into witnessing an armed robbery, jeopardized his career plans, and made him feel unsafe in his community.

Since the incident, he has felt ostracized and unwelcomed by the Muscowpetung First Nation community. [ 49 ] Shantel McNab also provided a VIS, dated September 11, 2019. In it, she recounted how she feared for her life during the robbery. After the robbery, she distanced herself from friends and family and stayed in her house. She could not enter the Stop-N-Go, so she lost a job that had provided for her family. July 23, 2019 [ 50 ] In relation to the charges on the Indictment dated October 15, 2020, the parties presented an agreed statement of facts [ASF] (Exhibit P-1).

Several events on July 23, 2019 led to these charges: theft of a vehicle, break and enter of a home on the Muscowpetung First Nation and theft of items therein, and robbery at the same Stop-N-Go with a shotgun. [ 51 ] The ASF reads as follows: THEREFORE Jarrett T. Poitras hereby makes the following admissions of fact pursuant to sections 655 and 724 of the Criminal Code for the purposes of sentencing on the said charges, THAT: 1. On July 23, 2019, Jarrett T.

Poitras, hereafter referred to as, “Poitras”, and Michael Obey, hereafter referred to as “Obey,” attended a dwelling house with house 57 on Muscowpetung First Nation, Saskatchewan in a black Honda Civic with license plate 030LFF hereafter referred to as the “black Honda Civic.” The black Honda Civic belonged to Kadi Spelliscy. Poitras was not known to, nor given permission from Kadi Spelliscy to be in possession of her vehicle. Poitras and Obey intended to commit the offence of breaking and entering house 57 Muscowpetung First Nation and stealing property therein.

Obey and Poitras did not have consent to enter house 57 Muscowpetung First Nation. 2. Inside house 57 Muscowpetung First Nation, Obey and Poitras damaged multiple pieces of property and stole several items of property belonging to Koby Keepness that did not exceed a value of $5000.00. The items included: a. a Peavy amp; b. a double shotgun case with a “Punisher” skull painted on it; c. a cherry blossom coloured Les Paul guitar; d. a Mann Acoustic guitar; a gun sling; and

e. a black Xbox One. 3. Poitras and Obey were confronted when leaving house 57 on Muscowpetung First Nation by a bystander. Poitras and Obey fled in the black Honda Civic with the above-mentioned stolen property. Poitras and Obey quickly departed house 57 Muscowpetung First Nation and began traveling to the Muscowpetung First Nation Stop N Go convenience store (hereafter referred to as the “Stop N Go”) located rurally at Muscowpetung First Nation with the intention to rob the store with firearms. 4.

At approximately 18:03:00 p.m. on July 23, 2019, Poitras and Obey arrived at the Stop N Go store in the black Honda Civic. Poitras exited the passenger side of the black Honda Civic and Obey exited the driver’s side. No one else was in the black Honda Civic. Poitras’ and Obey’s arrival in and exit out of the black Honda Civic can be seen at approximately 18:03:13 p.m. on the Stop N Go convenience store exterior surveillance video (ch07_20190723175901), which will be filed and played in these proceedings and hereafter referred to as Exhibit P-2. 5.

On July 23, 2019, at 18:03:13 p.m. of P-2, Poitras is seen with short dark cropped hair and was wearing a red muscle shirt with black and white stripes down the sides, red shoes and blue shorts. At 18:03:36 p.m. of P-2, Obey can be seen wearing black plants; a black t - shirt with red stripes on the shoulders; a black ball cap with white writing on the front; black gloves, black shoes and two distinct gold chains around his neck. Poitras and Obey intentionally had their faces covered with red bandanas to conceal their identity. 6.

When Poitras and Obey exited the black Honda Civic both were carrying operational firearms, to wit: shotguns, into the Stop N Go store. Poitras was prohibited from possessing a firearm by reason of an order made pursuant to

section 110 of the Criminal Code . At the time of the offence Poitras possessed a firearm, to wit: a shotgun without being the holder of a license under which he may possess it. Poitras and Obey can be observed with the firearms at 18:03:16 p.m. on P-2. 7. Curtis Cappo, a gas jockey employed at the Stop N Go gas station, was confronted by Poitras and Obey outside the Stop N Go following their arrival. Poitras pointed his shotgun at Curtis Cappo outside the Stop N Go. Curtis Cappo was ordered by Poitras and Obey to be quiet.

Curtis Cappo complied with their demands, entered the Stop N Go and situated himself at the rear of the store. Curtis Cappo would remain behind the counter during the armed robbery and would stay there until the armed robbery concluded. 8. Poitras and Obey approached the Stop N Go with shotguns drawn and pointed towards the store and its occupants. Obey remained at the entrance of the store with a shotgun to watch Poitras’ back while Poitras entered the store to demand money and cigarettes from the store clerk, Merrick Benjoe (hereafter known as “Benjoe”).

Poitras entered the Stop N Go and approached Benjoe while in possession of a loaded shotgun. When confronting Benjoe, Poitras racked and pointed his 12-guage shotgun directly at Benjoe with his finger on or near the trigger of the loaded shotgun. Poitras ordered Benjoe to open the register and give him money; Benjoe complied and provided Poitras with approximately $200.00 in cash from the register. Poitras can be seen reaching over the counter into the till to grab the money as Benjoe rushes to give it to Poitras at gunpoint.

After being given most of the cash bills from the cash register by Benjoe, Poitras subsequently ordered Benjoe to give him cigarettes and a bag. Benjoe gathered all the cigarettes from the bottom row of the tobacco shelf, handed them to Poitras, and gave Poitras a bag. The armed robbery can be seen inside the Stop N Go beginning at 18:03:25 p.m. on the interior surveillance video (ch08_20190723180300) hereafter be known as P-3 and the overhead interior surveillance video (ch10_20190723175801) which will be hereafter known as P-4. Curtis Cappo can be observed behind the counter of the Stop N Go in P- 3. 9.

During the robbery, Kelly Desjarlais (the partner of Christopher Cappo) was present with her infant child inside the Stop N Go. Kelly Desjarlais witnessed Poitras robbing Benjoe at gunpoint. Kelly Desjarlais hid at the back of the store during the robbery until Poitras and Obey left. After Poitras and Obey left, Kelly Desjarlais can be observed standing at the counter of the Stop N Go holding her infant child on P-4 at 18:04:18. 10. At 18:03:29 p.m. Obey left the Stop N Go while Poitras remained inside of the store and continued to rob Benjoe of monies and tobacco products at gunpoint.

Obey walked towards a white Pontiac G5 parked outside of the store belonging to Christopher Cappo, next to the black Honda Civic. Obey looked inside of the vehicle to determine if the keys were in the ignition. Obey then returned to the entrance of the Stop and Go at 18:03:39 p.m. of P-2. 11. At 18:03:59 p.m. Poitras and Obey exited the Stop N Go. Poitras and Obey approached the black Honda Civic. Poitras entered the front passenger seat of the black Honda Civic. Obey placed some items into the black Honda Civic on the driver’s side and then ran to the white Pontiac G5 parked nearby.

Poitras then moved around to the driver’s seat of the black Honda Civic. 12. At 18:04:14 p.m. Obey entered the driver’s seat of the white Pontiac G5 belonging to Christopher Cappo. Obey started the vehicle and left the store. Poitras exited the passenger seat of the black Honda Civic and re-entered on the driver’s side. Poitras started the black Honda Civic and fled the Stop N Go at a high rate of speed. This can be observed on P-2. While fleeing in the black Honda Civic, Poitras was observed by Anthony Episkinew driving past the band office parking lot.

Poitras was recognized by Anthony Episkinew on account of wanted posters and images circulating in the news relating to the earlier armed robbery with a firearm of the Stop N Go on March 4, 2019, of which Poitras was convicted of after trial on June 17 th , 2021. 13. Police were called shortly after Poitras and Obey fled the Stop N Go but were unable to locate either Poitras or Obey.

At the time of committing the robbery of the Stop N Go with a firearm on July 23, 2019, Poitras was already a suspect on warrant status and being actively search for by police for the robbery with a firearm of the same Stop N Go Convenience store on March 4, 2019. 14. Poitras and Obey would attend 341 Forget Street in Regina, Saskatchewan, where they would store the property of Koby Keepness, stolen from 57 Muscowpetung First Nation and a shotgun used during the recent armed robbery of the Stop N Go. Obey remained at the house, Poitras left. 15. On July 24, 2019, at approximately 11:00 a.m., Cst.

Kauk of the Regina Police Service located the black Honda Civic with Saskatchewan license plate 030LFF belonging to Kadi Spellicy. The vehicle was located parked in front of 341 Forget Street in Regina, Saskatchewan.

16. On July 24, 2019, at approximately 1:15 p.m., Obey exited 341 Forget Street in Regina, Saskatchewan and was arrested for his involvement in the earlier robbery that had occurred at the Stop N Go on July 23, 2019. Cst. Bosche of the Regina Police Service located a shotgun in the residence stored in plain view on a ledge in the basement. 17. The shotgun was identified as a Winchester Model 12 pump action 12-gauge shotgun. The stock of the shotgun had been cut down to just a small chunk of wood for a handle that was taped on to the metal receiver extension with black electrical tape.

The barrel of the shotgun had also been cut down. A red 12-gauge Winchester brand shell was removed from the magazine tube. The shotgun was a loaded prohibited firearm. 18. At 12:50 a.m. on July 25, 2019, a search warrant was authorized for 341 Forget Street in Regina, Saskatchewan. At 1:00 a.m. on July 25, 2019, police made entry into the residence. Police located and seized the following: a. Les Paul Guitar and stand; b. Mann Acoustic Guitar and stand; c. Black Honda Civic key; and d. Two red bandanas. 19.

The Les Paul guitar and stand recovered from 341 Forget Street by police on July 25, 2019, was the property of Koby Keepness which was stolen from his residence at house 57 on Muscowpetung First Nation. 20. The Mann Acoustic guitar and stand recovered from 341 Forget Street by police on July 25, 2019, was the property of Koby Keepness house 57 on Muscowpetung First Nation. 21. The Honda Civic key recovered from 341 Forget Street by police on July 25, 2019, was the property of Kadi Spelliscy. 22.

On July 26, 2019, at 2:10 a.m., Poitras was arrested at 651 Athol Street, Regina, Saskatchewan, in connection with the robberies of the Stop N Go convenience store. Police discovered that there was a firearm and ammunition located inside the residence. Poitras surrendered to police without incident. [ 52 ] Merrick Benjoe presented a VIS statement in court. She spoke of her fear during the incident, losing a pregnancy after the robbery, and suffering now from anxiety and PTSD. Positions of the Parties [ 53 ] The sentencing hearing on this matter began June 2, 2023, and continued on July 28, 2023.

The Crown filed a criminal record for the accused showing 11 previous convictions in 2017 and a breach of a conditional sentence in 2018. His last convictions include four convictions involving firearms. On sentencing for these convictions, he received a weapons prohibition order. [ 54 ] The Crown argued that the most significant sentencing principles in play here are denunciation of the offences and deterrence of Mr.

Poitras and others from committing such offences. [ 55 ] The Crown seeks a sentence of 14 and one half years, before taking remand into account, to be calculated as follows: Indictment alleging offences on March 4, 2019 : Count 1: with intent to commit an indictable offence have his face covered – one year consecutive. Count 2: was an occupant of a motor vehicle, in which he knew that there was at the time a firearm (shotgun) – one year concurrent. Count 3: used a firearm (shotgun) in robbing Muscowpetung Stop-N-Go of monies and tobacco products – five years consecutive.

Count 4: without lawful excuse, handled a firearm (shotgun) in a careless manner – one year concurrent. Count 6: have in his possession a firearm while he was prohibited from doing so – one year consecutive. Count 7: without lawful excuse, pointed a firearm at Shantel McNabb – one year concurrent. Indictment alleging offences on July 23, 2019 Count 1: used a firearm to wit: a shotgun in robbing Muscowpetung Stop N Go of monies and tobacco products – five years consecutive. Count 5: possessed a firearm (shotgun) without being the holder of a licence – one year concurrent.

Count 7: with intent to commit an indictable offence did have his face covered – one year consecutive. Count 9: break and enter of a dwelling house, House 57 Muscowpetung First Nation, and did steal a firearm located therein – three years concurrent. Count 11: possess a firearm while he was prohibited from doing so – one year consecutive.

Count 12: without lawful excuse, pointed a firearm (shotgun) at Merrick Benjoe and Curtis Cappo – one year concurrent. [ 56 ] The parties jointly submit the following sentence: Information 991164134: Count 1: on June 18, 2021, did without lawful excuse, fail to attend Court – six months consecutive. [ 57 ] The Crown agrees that the totality principle warrants a reduction in the sentence from 14- and one-half years to 13 years. [ 58 ] The defence seeks a global sentence of five- and one-half years, taking into account the principle of totality, but not the remand credit, calculated as follows: Indictment alleging offences on March 4, 2019: Count 1: nine months, concurrent.

Count 2: six months, concurrent. Count 3: five years, concurrent Count 4: six months, concurrent. Count 6: 12 months, concurrent. Count 7: 12 months, concurrent. Indictment alleging offences on July 23, 2019 Count 1: five years, concurrent. Count 5: six months, concurrent. Count 7: nine months, concurrent. Count 9: 24 months, concurrent. Count 11: 12 months, concurrent. Count 12: 12 months, concurrent. Information 991164134 Count 1: six months, consecutive. [ 59 ] The parties jointly submit that a lifetime firearm prohibition, under s. 109(2) of the Criminal Code , and a DNA order, under s. 487.051 are mandatory.

Remand Time [ 60 ] The parties agree that any remand time should be credited at one- and one-half days for each day spent on remand. In the ASF (Exhibit P-1) at paras. 23-30, the parties agreed on the following: 23. Poitras was remanded in custody at the Regina Provincial Correctional Centre from July 26, 2019, to May 8, 2020, for a total of 287 actual days (287 actual days x 1.5 = 431 days at enhanced remand credit). [At the sentencing hearing, counsel agreed the remand time was 289 days, not 287 days, which should result in credit of 434 days.] 24.

Poitras’ release from remand was ordered by The Honourable Justice L.L. Krogan on May 6, 2020, following a contested s. 520 bail review. Poitras was released from remand custody on May 8, 2020, after posting bail. Poitras was ordered to comply with several conditions including, but not limited to, GPS ankle monitoring bracelet, 24-hour house arrest and maintaining his residence at 941 Rae Street. Poitras remained out of custody until, and throughout, his first trial. 25. Poitras was convicted of a number of offences after trial on June 17, 2021.

The Crown bought an application to have Poitras taken into custody following conviction pursuant to section 523(1) (

b) of the Criminal Code . Defence counsel made an application to adjourn the s. 523(1) (

b) revocation hearing to June 18, 2021, at 10:00 a.m. which was granted. Poitras was given clear instructions by the Court to attend on June 18th, 2021, and to not return to Muscowpetung First Nation in the interim. 26. On June 18, 2021, Poitras left 941 Rae Street in Regina, Saskatchewan without permission of his bail supervision officer in contravention of his residence and curfew conditions. When police arrived at 941 Rae Street, they found an electronic monitoring bracelet which Poitras had cut off. Poitras was not located at 941 Rae Street.

27. On June 18, 2021, Poitras failed to appear in court after being convicted after trial of numerous offences. A media release was issued by the RCMP, alerting the public that Poitras was at large and on the run. In the following months, significant police resources were allocated towards finding Poitras. On September 12, 2021, an additional media release was issued by the RCMP asking the public for information regarding Poitras’ whereabouts. 28. On February 20, 2023, Poitras was arrested at 82 Muscowpetung First Nation after police received a phone call around noon.

Police were called by one of Poitras’ sisters, Chaya Poitras, who had requested his arrest. Chaya Poitras informed police that Poitras had woken up in an agitated state and was fighting with their parents. Upon arriving at 82 Muscowpetung First Nation, police were granted entry into the residence by Chaya Poitras and Kendra Poitras. When Poitras was located in the house, he screamed at police and walked away, but ultimately, he was restrained and reluctantly placed in handcuffs. 29.

In total, Poitras evaded police efforts to locate him from June 18, 2021, to February 20, 2023, for a total of 612 actual days. 30.Poitras was arrested on February 20, 2023, and has been remanded since. As of June 2, 2023, Poitras has been remanded an additional 103 actual days. [ 61 ] The parties further agree that 103 days of remand between February 20, 2023 and June 2, 2023 should result in a remand credit of 155 days. As such, to June 2, 2023, Mr. Poitras spent 392 days on remand. The parties agree on a remand credit of 588 days. [ 62 ] Mr. Poitras’ sentencing date is August 18, 2023.

Between June 2 and August 18, he has spent another 76 days in remand. Remand credit calculated as agreed by the parties at 1.5 to 1.0 is 114 days. [ 63 ] In sum, the following periods of remand are relevant: 1. July 26, 2019, to May 8, 2020, for a total of 289 actual days. Enhanced remand credit is 434 days. 2. February 20, 2023 to June 2, 2023, for a total of 103 actual days. Enhanced remand credit is 155 days. 3. June 3, 2023 to August 18, 2023, for a total of 76 actual days. Enhanced remand credit is 114 days. [ 64 ] Thus, the total remand credit is 703 days, or 1 year, 11 months.

Decision [ 65 ] In view of the aggravating and mitigating factors which in my view reduce Mr. Poitras’ culpability in this case, he should receive a sentence at the low end of the range discussed in Johnson for each robbery. While I find the sentences should run consecutively, because of the short period between the robberies, the sentence on the second should not be increased. Apart from the offences of possessing a firearm while prohibited from doing so and failing to attend court, the remaining charges will be served concurrently to reach a sentence of seven years in total. [ 66 ] Mr.

Poitras will be sentenced as follows: On Indictment alleging offences on March 4, 2019 : Count 3: used a firearm (shotgun) in robbing Muscowpetung Stop-N-Go of monies and tobacco products – three years. Count 1: with intent to commit an indictable offence have his face covered – one year concurrent. Count 2: was an occupant of a motor vehicle, in which he knew that there was at the time a firearm (shotgun) – one year concurrent. Count 4: without lawful excuse, handled a firearm (shotgun) in a careless manner – one year concurrent.

Count 6: have in his possession a firearm while he was prohibited from doing so – six months consecutive. Count 7: without lawful excuse, pointed a firearm at Shantel McNabb – one year concurrent. On Indictment alleging offences on July 23, 2019 : Count 1: used a firearm to wit: a shotgun in robbing Muscowpetung Stop-N-Go of monies and tobacco products – three years consecutive. Count 5: possessed a firearm (shotgun) without being the holder of a licence – one year concurrent. Count 7: with intent to commit an indictable offence did have his face covered – one year concurrent.

Count 9: break and enter of a dwelling house, House 57 Muscowpetung First Nation, and did steal a firearm located therein – three years concurrent. Count 11: possess a firearm while he was prohibited from doing so – one year concurrent. Count 12: without lawful excuse, pointed a firearm (shotgun) at Merrick Benjoe and Curtis Cappo – one year concurrent.

On Information 991164134: Count 1: on June 18, 2021, did without lawful excuse, fail to attend Court – six months consecutive. [ 67 ] The sentence of seven years must be reduced by the remand credit of one year, eleven months, to calculate the sentence going forward. Thus, the time going forward would be five years, one month, which I calculate as follows: On Indictment alleging offences on March 4, 2019: Count 3: used a firearm (shotgun) in robbing Muscowpetung Stop-N-Go of monies and tobacco products – two years . Count 1: with intent to commit an indictable offence have his face covered – one year concurrent.

Count 2: was an occupant of a motor vehicle, in which he knew that there was at the time a firearm (shotgun) – one year concurrent. Count 4: without lawful excuse, handled a firearm (shotgun) in a careless manner – one year concurrent. Count 6: have in his possession a firearm while he was prohibited from doing so – six months consecutive. Count 7: without lawful excuse, pointed a firearm at Shantel McNabb – one year concurrent. Total: two years, six months.

On Indictment alleging offences on July 23, 2019: Count 1: used a firearm to wit: a shotgun in robbing Muscowpetung Stop-N-Go of monies and tobacco products – two years, one month , consecutive. Count 5: possessed a firearm (shotgun) without being the holder of a licence – one year concurrent. Count 7: with intent to commit an indictable offence did have his face covered – one year concurrent. Count 9: break and enter of a dwelling house, House 57 Muscowpetung First Nation, and did steal a firearm located therein – two years, one month concurrent.

Count 11: possess a firearm while he was prohibited from doing so – one year concurrent. Count 12: without lawful excuse, pointed a firearm (shotgun) at Merrick Benjoe and Curtis Cappo – one year concurrent. Total: two years, one month, consecutive. On Information 991164134: Count 1: on June 18, 2021, did without lawful excuse, fail to attend Court – six months consecutive. Total: six months, consecutive. [ 68 ] In sum, the time going forward is five years, one month.

Finally, I am ordering a lifetime firearm prohibition, under s. 109(2) of the Criminal Code , and a DNA order, under s. 487.051 of the Criminal Code . The victim surcharges are waived because of the length of the sentence. J. J.E. MCMURTRY