R. v. Charlette (J.J.), 2015 MBCA 32

Citation: R. v. Charlette (J.J.), 2015 MBCA 32 Date: 20150407 Docket: AR 13-30-08089 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) ) N. P.

Steen- and - ) for the Respondent ) JOHN JUNIOR CHARLETTE ) Appeal heard: ) December 9, 2014 (Accused) Appellant ) ) Judgment Delivered: ) April 7, 2015 HAMILTON J.A. [1] This is a conviction and sentence appeal. [2] The trial judge convicted the accused of robbery, two counts of assaulting a peace officer with a weapon andpossessing a weapon dangerous to the public peace. The victim of the robbery was a taxi driver. The weapon used in the robbery was aknife. [3] The accused appeals only his robbery conviction, which was under s. 343(

c) of the Criminal Code (the Code) (assaultwith intent to steal).

He argues that the trial judge erred in finding that the Crown had proven beyond a reasonable doubt that he had thespecific intent to steal because his intent was to commit “suicide by cop.” He argues that the conviction should be set aside andsubstituted with a conviction for assault with a weapon. [4] He also seeks leave to appeal his sentence, and, if leave is granted, a reduction of his sentence. [5] The trial judge sentenced the accused to 62 and one-half months on a go-forward basis, after giving him a credit, on a1:1 basis, for 21 and one-half months of pre-sentence custody.

The accused’s principal argument is that the global sentence is harsh andexcessive because the trial judge did not give enough weight to the applicable Gladue factors (R. v. Gladue, (SCC),[1999] 1 S.C.R. 688) and the accused’s state of mind at the time that he committed the offences. [6] I would dismiss the conviction appeal. I would grant leave to appeal the sentence, but I would dismiss it. Background [7] The accused testified at the trial. The trial judge did not believe him, nor did his evidence raise a reasonable doubt,particularly with respect to his intention.

He found that the cross-examination of the accused demonstrated that he was “lying on keypoints and embellishing on others.” He accepted the taxi driver’s evidence as to what happened, acknowledging that English was not hisfirst language and that there were some inconsistencies, but none on material matters. [8] Before the accused hailed the taxi cab, he had stolen a bread-style knife from the home of a relative and had hidden itin his sleeve. He directed the taxi driver to take him to another part of the city.

Along the way, he twice had the taxi driver stop so thathe could get money from an ATM, but he did not get money from either ATM. The second stop was at a 7-Eleven from where the taxidriver summoned the police by activating the emergency strobe light on top of the taxi cab. [9] The trial judge found that when the accused returned to the taxi cab after going into the 7-Eleven store to use theATM, the taxi driver asked to be paid and the accused responded by saying, “How about you give me your all money,” and lunging atthe taxi driver with the knife aimed towards his abdomen and neck.

The taxi driver escaped injury by jumping from the taxi cab. The

trial judge found that the photographs of the interior of the taxi cab, which show a tear in the driver’s seat, supported the taxi driver’stestimony that the accused tried to stab him. [10] The accused fled to a nearby alley and hid behind a garbage bin as a police car with two police officers arrived at thescene. When one of the police officers searched the alley, the accused jumped out, pointing the knife at the officer. The officer wasable to get out of the way of the knife and moved back towards the other police officer.

The accused refused to drop the knife,notwithstanding several demands by the police officers to do so. He continued to advance toward the police officers stating several times“You’re going to have to kill me.” As he continued to move toward one officer, and then the other, holding the knife, one of the officersshot him twice. The police officers assisted the accused until the paramedics arrived to take him to the hospital, where he stayed forseveral days.

There was no issue at trial about the force used by the two police officers. [11] The taxi driver was traumatized by the events, as were the police officers. [12] In his sentencing reasons, the trial judge stated: …. I have no doubt that at some point he had determined to commit suicide but this was only after the robbery, to use the vernacular,went off the rails.

I so find, given his previous unsuccessful attempts to kill himself, and even more so I am persuaded that indeed he did try and killhimself that night at one point, based on later attempts after his conviction. …. [13] The Gladue report filed at the sentencing hearing demonstrated that the accused had a troubled and tragic backgroundand that he is a high risk to reoffend. He is thirty years old. He is Cree but has had little contact with his Aboriginal culture. He grew upin Flin Flon until he moved to Winnipeg at the age of six, when he was apprehended by Child and Family Services.

He lived in fosterhomes after that time. He has had suicidal tendencies over the years. [14] The accused has a lengthy criminal record dating back to his youth. A number of the 41 convictions are for crimes ofviolence. Until this sentencing, the accused had never been sentenced to the penitentiary. The Conviction Appeal [15] The accused asserts that the robbery conviction is unreasonable pursuant to s. 686(1)(a)(

i) of the Code, given that thetrial judge found that the accused was suicidal after the police arrived, as conceded by the Crown. Relying on R. v. Beaudry, 2007 SCC5, [2007] 1 S.C.R. 190, he says that it was illogical for the trial judge to dissect the evidence into discrete time frames as to when theaccused was suicidal and when he was not. Therefore, he says that the trial judge erred by failing to find him not guilty because, atminimum, there had to be a reasonable doubt that his intention was to steal money from the taxi driver.

As a result, he says that therewas a fundamental flaw in the trial judge’s reasoning. He concedes that the evidence calls for a conviction for assault with a weapon,which does not require specific intent, as does robbery under s. 343(

c) of the Code. [16] The accused also asserts that the trial judge ignored relevant evidence because he never addressed the fact that neitherthe taxi cab nor the taxi driver’s money was taken nor attempted to be taken. As well, he says that the trial judge erred in his assessmentof the credibility of the taxi driver, arguing that there was a language barrier evident at trial and that the video surveillance from the taxicab, and the fact that no money was recovered, did not confirm the details of the taxi driver’s evidence. [17] I agree with the Crown that the conviction appeal should be dismissed.

The trial judge found that after the taxi driverasked the accused for money to pay for the taxi cab ride, the accused demanded his money and then lunged at him with the knife. Thesekey findings are the foundation of the robbery conviction under s. 343(

c) of the Code, which only requires an assault and an intention torob, not an actual taking of property. See R. v. Chiang (M.) (1999), 1999 BCCA 503 , 130 B.C.A.C. 22. The trial judge wasacutely aware of the issue of intent, given the evidence at trial and the submissions of counsel. He was entitled to make the findings offact, and inferences from those findings, based on his belief of the taxi driver’s evidence and disbelief of the accused’s evidence. Thefact that he accepted that the accused became suicidal after the robbery was not illogical to his finding of intent to rob at an earlier pointin time.

In other words, the principles articulated in Beaudry are not applicable to overturn the conviction for robbery. [18] I would dismiss the conviction appeal. The Sentence Appeal [19] At the sentencing hearing, the Crown sought a total sentence of eight years before credit for pre-sentence custody.

Defence argued that, given the circumstances of the offences and the accused’s background, the total sentence should be four yearsbefore credit for pre-sentence custody. [20] In imposing the go-forward sentence of 62 and one-half months, the trial judge concluded that the sentences should be,before a reduction for totality and pre-sentence credit, five years for the robbery, three years for each of the two counts of assaulting apeace officer (concurrent), consecutive to the robbery, and one year concurrent for the possess weapon dangerous to the public peace. He stated:

In view of the pre-sentence report, the Gladue factors that I have referred to, the circumstances of the offence, your history ofinvolvements, a consideration of which I must stress is limited to two things, disentitling you to leniency and assessing the likelihood thatany concern for rehabilitation is warranted at all, I sentence you to five years on the robbery, three years consecutive on the assault peaceofficer, one year concurrent on the possess weapon dangerous to the public peace.

I will, upon review of the principle of totality and therather unusual Gladue factors here and other considerations which I alluded to in my judgment, reduce on a global basis your sentence toseven years. Your seven-year sentence will be reduced by 21.5 months, leaving a sentence of 62 and a half months going forward. [emphasis added] Position of the Parties [21] The accused argues that the principles articulated in Gladue and Ipeelee (R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R.433) were not properly applied and the sentence is harsh and excessive. [22] In particular, he says that the trial judge erred by considering the Gladue factors at the end of his analysis inconjunction with his consideration of totality. This, he says, was an error in principle and resulted in an underemphasis of those factors.

He argues that if the Gladue factors had been properly applied earlier in the analysis, then the trial judge would not have found fiveyears for robbery and three years for the assault police officer offences to be fit sentences, particularly given that he has never beenincarcerated, before now, in the penitentiary. [23] He also says that the three-year concurrent sentence for the assault police officer offences, but consecutive to therobbery sentence, are excessive, given that the trial judge accepted that, at the time he committed those offences, he was suicidal andtherefore his moral blameworthiness was reduced. [24] He asserts that a sentence of three years for the robbery and two and one-half years consecutive for the assault policeofficer offences would be appropriate sentences before the last look for totality.

He seeks a total sentence of four or five years, after alast look for totality, before applying the credit for the 21 and one-half months of pre-sentence custody. [25] The Crown’s position is that the trial judge’s reasons do not reflect any error of principle, or fact, that would allow thiscourt to intervene and that the sentences imposed are not unfit. It says that the reasons demonstrate that the trial judge considered theGladue factors before formulating the sentence, notwithstanding his reference to them in conjunction with totality at the end of hisreasons.

The Crown says that the only issue for the trial judge was the length of incarceration in a penitentiary and that the sentenceimposed, while arguably at the high end, is fit for this offender and these offences, which the trial judge concluded required a sentencethat focussed on denunciation and deterrence. Issues and Standard of Review [26] Briefly stated, the accused raises the following two issues: 1. Did the trial judge err in how he applied the principles articulated in Gladue and Ipeelee? 2.

Is the sentence unfit? [27] The standard of review for sentence appeals is well known and is not a contentious issue here. “Appellate courts arenot to interfere with the decision of the sentencing judge unless an error in principle is present or the sentence is unfit” (R. v. H. (C.T.),2015 MBCA 4 at para. 19). See also R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163.

As explained by Steel J.A. in H. (C.T.)(at para. 20): An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficientweight to a relevant factor or overemphasizing an appropriate factor. See R. v. Arbuthnot (S.M.), 2009 MBCA 106 at para. 4, 245Man.R. (2d) 244. The fundamental measure of the fitness of a sentence lies in the principle of proportionality. A sentence must beproportionate to the seriousness of the offence and the moral blameworthiness of the offender. If the sentence fails to meet thisfundamental test, it is unfit. See R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500. Issue 1 - Gladue [28] The accused argues that the trial judge’s Gladue analysis was faulty because he only gave effect to the Gladue factorsat the end of his reasons. I disagree. [29] The trial judge addressed the Gladue factors and the accused’s mental health early in his reasons, first in the context ofreviewing the defence submission and then in the context of his own analysis of the mitigating factors pertinent to the accused. In thisregard, he stated, in part:

…. I agree that the accused comes from a tragic background. I agree that there are Gladue factors here that have contributed to that …. This is an important sentencing principle in this case. . . . . . … [T]he background of the accused is such that it has no doubt led to many of the psychological difficulties that he suffers from now,many of the abuses that he suffered inclusive of having been moved around from foster home to foster home, are unique or borne out of aunique background in this particular case. [30] In addition, the trial judge referred to s. 718.2(

e) of the Code, noting that it “requires that particular attention be paid tothe circumstances of Aboriginal offenders.” He commented on the Supreme Court of Canada’s direction to sentencing judges in Ipeelee,to use a different method of analysis when sentencing Aboriginal offenders. [31] The trial judge then commented on the aggravating factors, the sentencing principles of deterrence, denunciation andrehabilitation, noting the accused’s history of psychological problems.

He stated that, “The difficulty that he has [had] to do with anumber of psychological problems and emotional problems that have spawned from Gladue factors.” He also noted that the pre-sentence report found that the accused was a high risk to reoffend. [32] As for the aggravating factors, he stated, in part: …. The whole series of events … at each stage was given a degree of intelligent thought …. . . . . . Many people have been affected …. ….

The complainant to the robbery is a cab driver …. … [B]efore the accused attempted suicide, he attempted to stab one of theofficers in the stomach …. … an extremely aggravating circumstance. [33] Recently this court explained that the Gladue factors are to be considered when determining the appropriate sentencefor an offence in conjunction with the consideration of mitigating factors, “not at the end when reviewing the sentence on the basis oftotality” (H. (C.T.) at para. 57). See also R. v. Kozussek, 2013 MBCA 52; and R. v. Smoke (D.D.), 2014 MBCA 91 at para. 42, 310Man.R. (2d) 123.

The trial judge did consider the Gladue factors as required in H. (C.T.). [34] The reference to “the rather unusual Gladue factors here” at the end of the trial judge’s reasons in conjunction with hisreference to “totality” is not an error in principle. In my view, this last reference to the Gladue factors, while unnecessary, demonstratesthat the trial judge was considering the personal circumstances of the accused one last time as part of the last look to ensure that thesentence imposed was not “a crushing sentence,” as required by the principle of totality. See R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500 at para. 42; R. v. Draper (T.G.), 2010 MBCA 35 at para. 31, 251 Man.R. (2d) 267; and Smoke at para. 25.

Issue 2 - Is the sentence unfit? [35] The accused asserts that the sentences imposed for the robbery and the assault of the peace officers with a weapon areunfit given the Gladue factors and the accused’s psychological problems, and given that he has not been sentenced to penitentiary timebefore. [36] While he acknowledges that taxi drivers are especially vulnerable victims, he says that the taxi driver did not suffer anyphysical harm and that he did not take anything during the robbery. [37] Given the nature of their work, the vulnerability of taxi drivers is self-evident and has been the subject of comment frommany appellate courts over many years.

Often these comments are made in the context of noting that the offence of robbery isaggravated where the robbery concerns victims that are vulnerable, given that they work alone and often at night. In addition to taxidrivers, they include convenience store employees and gas bar attendants. See for example R. v. Iwaniw, R. v. Overton (1959), (MB CA), 127 C.C.C. 40 at 55 (Man. C.A.); R. v. Crane, [1986] B.C.J. No. 904 at paras. 11-12 (QL); R. v. Edstrom (B.J.),2005 BCCA 105 at para. 17, 209 B.C.A.C. 129; R. v. Dankewich (R.A.), 2005 BCCA 629 at paras. 19-20, 220 B.C.A.C. 133; R. v.

Butler(D.A.), 2008 NSCA 102 at para. 25, 270 N.S.R. (2d) 225; R. v. Keast, [1980] O.J. No. 854 at para. 5 (QL) (C.A.); R. v. Wiberg (1997), (SK CA), 158 Sask.R. 246 at para. 3 (C.A.); R. v. Park (1973), (NS CA), 6 N.S.R. (2d) 430 at

para. 6 (C.A.); R. v. Crossman (1981), (NS CA), 44 N.S.R. (2d) 174 at para. 5 (C.A.); and R. v. Wright (P.S.), 2002ABCA 170 at para. 17, 303 A.R. 371. [38] The British Columbia Court of Appeal wrote about this vulnerability and the serious nature of the offence of robbing ataxi driver in Crane (at paras. 11-12): It is a very serious offence to rob a taxi driver. Taxi drivers are susceptible to threats of assault and robbery during the course of theirdaily employment and this court in the past has indicated that robbery of a taxi driver will be treated as a serious offence.

This is aparticularly serious matter because a knife was used in the course of the robbery …. The principal consideration in imposing this type of sentence is general deterrence. …. [39] These comments are applicable here. I would add that, given the vulnerability of taxi drivers in their occupation,denunciation and protection of the public are also important sentencing principles.

Having said that, rehabilitation must always beconsidered and the weight to be given to that principle will depend on the circumstances of the offender and the offence. [40] The range of sentence for robbing a taxi driver is wide, as explained in Clayton C. Ruby, Gerald J. Chan & Nader R.Hasan, Sentencing, 8th ed. (Markham: LexisNexis Canada Inc., 2012), under the heading “Robbery of Taxi Drivers” (at para. 23.376): Taxi drivers are considered vulnerable victims. They are alone, often work late at night and carry money in cash. Deterrence is mostoften cited as an important sentencing principle in this offence.

The sentencing range for this offence is quite wide ranging, anywherebetween 3 and 12 years. [41] While no appellate court in Canada has specified an applicable range of sentence for robbing a taxi driver, severalappellate courts have referred to a three-year sentence as a starting point for guidance. See, for example, Dankewich at para. 8; Butler atpara. 23; Wiberg at para. 3; and R. v.

Johnas, Hammond, Morozoff, Jurgens, MacIntyre, Lodoen and Cardinal (1982), 1982 ABCA 331, 41 A.R. 183 at para. 19 (C.A.) (vulnerable victim was a store clerk). [42] This court has not specifically stated a sentencing range or starting point with respect to robbery of a taxi driver. Sentences have ranged between one year and five years in five cases over the years for robbery or attempted robbery of a taxi driver: R.v. Mentuck, [1987] M.J. No. 327 (QL) (C.A.) (five years); Iwaniw (four years); Overton (two and one-half years - attempt); R. v.

Benn(1985), (MB CA), 36 Man.R. (2d) 113 (C.A.) (two and one-half years); and R. v. Pavez (F.) (1996), (MB CA), 113 Man.R. (2d) 244 (C.A.) (one year). These sentences take into consideration the violence in the commission of theoffence (Mentuck; Iwaniw; Overton), as well as the accused’s criminal record (Mentuck, Benn) or parole status (Mentuck). The two casesin which there was no physical harm to the taxi driver resulted in a two and one-half-year sentence (Benn, simulated gun used byaccomplice) and a one-year sentence (Pavez, bayonet).

In Pavez, the youthfulness and rehabilitative efforts of the accused was a majorconsideration resulting in the one-year sentence. [43] This court has noted that the sentence for robbery of a taxi driver should be similar to that of any armed robbery. SeePavez, in which the majority upheld the one-year sentence, despite a recommendation that the accused serve the sentence in thecommunity. In so doing, Philp J.A. stated, (at para. 3): This court has said on more than one occasion that armed robbery should normally carry a penitentiary term.

See, for example, R. v.Huth (June 9, 1989, File No. 107/89). [44] Justice Twaddle, in dissent, would have imposed a suspended sentence, although he, too, noted that, “A lengthy prisonterm is usually appropriate in a case of armed robbery in the interest of public protection” (at para. 10). [45] The Crown argues that the range of sentence for a first offender who robs a taxi driver is two to four years, relying onR. v. Berens, 2012 CarswellMan 766 (WL Can.), in which Martin J. stated (at para. 30): … [G]uidance from the Manitoba Court of Appeal, other Courts of Appeal and other cases that have been provided to me.

I accept thatfor a first offender such as this lady under the circumstances of this type of offence, by that I mean armed robbery and the disguise, that aperiod of incarceration of two to four years is the appropriate range …. [46] I agree that the range of two to four years for a first offender is a fair statement of the sentencing jurisprudence forrobbery of a taxi driver when armed with a weapon.

In other words, the starting point for a judge’s analysis when sentencing an offenderwith no previous criminal record for robbery of a taxi driver when armed with a weapon is a sentence between two and four years,depending on the circumstances of the offence and the offender, unless there are mitigating factors that call for an emphasis on

rehabilitation rather than deterrence, denunciation and protection of the public. [ 47 ] Assaulting a peace officer with a weapon is also a very serious offence, even if committed in the context of a suicide- by-cop scenario. As explained by the Alberta Court of Appeal in R. v.

Maygard (J.D.) , 2013 ABCA 214 , 553 A.R. 266 , a conviction appeal decision, “Trying to induce the police to kill oneself is patently dangerous to everyone within range of all weapons (those of the suicidal person and those of the police)” (at para. 29). [ 48 ] Here, in addition to the assault of the police officers as the accused moved towards them with the knife, the accused attempted to stab one of the police officers in the alley.

This stabbing attempt was not an action to entice the police to shoot him and the trial judge found it to be extremely aggravating. [ 49 ] I am of the view that the accused’s sentence appeal must fail, notwithstanding his tragic background, life and personal circumstances, and the applicable Gladue factors. [ 50 ] The trial judge rightly considered the violent nature of the offences, and their circumstances, to be serious and that the accused created a very dangerous situation for the taxi driver, the police officers and the public. With respect to the robbery, he stated that: ….

There needs to be a message sent to the public that when one undertakes to accost a cab driver … there will be significant consequences. This is especially so where … a weapon is brandished and used. …. [ 51 ] The trial judge also accepted that the accused was remorseful for his actions. He understood that the accused had a “tragic background” and that the Gladue factors had to be considered in the context of determining the appropriate sentence. He balanced the mitigating factors with the aggravating factors previously noted, including his high risk to reoffend and his lengthy criminal record.

He accepted that the accused was “prepared to try” to deal with his many problems but, given s. 718.02 of the Code , the seriousness of the offences and the accused’s lengthy record, he focussed on the principles of deterrence and denunciation. [ 52 ] The accused has not persuaded me that the trial judge made any error in principle. He considered all the facts, as he was entitled to find them, and addressed all the sentencing principles pertinent to the offences and the offender. In particular, he considered the fact that the accused is not a first offender and has a lengthy criminal record.

While he determined that the primary sentencing principles for the accused and these offences was denunciation and deterrence, he also considered the accused’s tragic and difficult background in the context of the direction of the Supreme Court of Canada in Gladue and Ipeelee . After determining that consecutive sentences for the offences of robbery and assault peace officer were in order, he appropriately took that one last look as required by the principle of totality. [ 53 ] Furthermore, he has not persuaded me that the sentences are unfit.

In particular, the sentence of five years for the robbery, before pre-sentence credit and a reduction for totality, is consistent with the sentencing range for robbery of a taxi driver with a weapon, given the accused’s lengthy criminal record.

Therefore, given that the trial judge made no error in principle, the serious nature of the offences and the related sentencing jurisprudence, the trial judge’s conclusions with respect to what were fit sentences for the robbery and the assaults of the peace officers, and the one-year adjustment for totality, are entitled to deference. [ 54 ] I note that the trial judge did not specifically address how he wished to give effect to the one-year adjustment for totality. It is clear from his reasons and the disposition sheet that the total sentence on a go-forward sentence is 62 and one-half months.

In keeping with the direction of this court in R. v. Reader (M.) , 2008 MBCA 42 , 225 Man.R. (2d) 118 , and the trial judge’s approach to the sentencing, I would allocate the 62 and one-half months’ go-forward total sentence as follows: Robbery–39 months Assault peace officer–23.5 months for each count concurrent to each other but consecutive to the robbery The sentence of one year concurrent on the possess weapon dangerous need not be adjusted.

Conclusion [ 55 ] I would dismiss the accused’s conviction appeal and I would grant leave to appeal sentence, but I would dismiss it except for the purposes of clarification of the go-forward sentences, as explained above. J.A.

I agree: J.A. I agree: J.A.