R v Harper (J), 2016 MBCA 64

Citation: R v Harper (J), 2016 MBCA 64 Date: 20160616 Docket: AR14-30-08300 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Appellant ) Appellant ) B. L. Gembey and ) J. H. Mugerwa - and - ) for the Respondent ) JAMIE HARPER ) Appeal heard: ) January 15, 2016 ) (Accused) Respondent ) Judgment delivered: ) June 16, 2016 On appeal from 2014 MBQB 228 , 311 ManR (2d) 266 BEARD JA I.

THE ISSUES [ 1 ] The Crown has applied for leave to appeal and, if granted, appeals the eight and one-half-year sentence imposed on the accused for a series of offences related to six robberies that he committed, each with a prohibited firearm. The grounds of appeal are: - that the sentencing judge erred in principle by failing to appreciate the significance of the circumstances of the offences; and - that the sentencing judge imposed an unfit sentence. [ 2 ] The accused pled guilty to six counts of robbery under section 344(1)(a), two counts of pointing a firearm under

section 87, five counts of possession of a weapon contrary to a court order under

section 117.01(1) and six counts of failure to comply with probation orders by possessing a weapon under

section 733.1(1), all charges being under the Criminal Code . All references to a weapon or firearm relate to a .22 calibre sawed-off rifle, which is a prohibited weapon. II. THE FACTS [ 3 ] The six robberies to which the accused pled guilty, following a preliminary inquiry, were committed between May 3 and 16, 2012; three were at convenience stores, one was at a gas bar, one was at a beer vendor and one was at a hotel.

The accused was 19 years old at the time of the robberies and 21 at the time of sentencing. [ 4 ] The robberies were similar, albeit with some differences, as noted: - in each robbery, the accused carried and displayed a loaded .22 calibre sawed-off rifle and he disguised his face; - the accused acknowledged that he had been involved with a street gang for several years, and that the robberies were carried out for his gang;

- all robberies, except the last, took place between 6:30 p.m. and midnight, while the last was at 1 a.m.; - each robbery took only a few minutes; - during four of the robberies, there was only one cashier working, while there were two cashiers during the other two; - the accused was alone for three of the robberies, and he had different accomplices for the other three; in two, the accomplice was ayouth; - the accused demanded cash, cigarettes and, in some, lottery tickets, the value of which totalled about $5,000; - no one was physically hurt, but the accused pointed the rifle at some of the cashiers, he made threats to shoot in two of the robberiesand, in one, he pumped the rifle. [5] The May 15, 2012 robbery took place at the Dakota Hotel.

The accused approached a group of strangers outside of thehotel and asked if they wanted to participate in the robbery, identifying himself to them by name. They all refused, and he carried out therobbery alone. [6] The sentencing judge was provided with a pre-sentence report that contained a Gladue report (R v Gladue, (SCC), [1999] 1 SCR 688) to assist him with the sentencing. III. THE SENTENCING JUDGE’S DECISION [7] The sentencing judge set out the general principles that underlie the sentencing process.

He noted the maximum andminimum penalties that apply to several of the offences and also that sentences for multiple offences can be imposed either usingconsecutive sentences, to be reviewed on a last look by applying the principle of totality, concurrent sentences, or a combination of thetwo. [8] The sentencing judge stated that he considered the six robberies to have been committed as part of a spree “motivatedby substance abuse and gang pressure” (at para 12), given that they were committed within a two-week period and were carried out in thesame way, for the same reason.

Thus, he determined that he would be imposing a global sentence for these offences, to be appliedconcurrently to each robbery. [9] The Crown has not appealed this aspect of the sentencing judge’s decision. [10] The sentencing judge reviewed the accused’s background and the information contained in the pre-sentence and Gladuereports.

This included that the accused is Aboriginal, that his mother left him with his father’s family when he was five years old andthat he had been raised for several years by his grandmother and aunts while his father was away working. [11] The accused moved to Red Sucker Lake when he was 13 years old, where he fell under the influence of cousins who wereinvolved with a gang. He became involved with the gang, where he began using drugs and alcohol and dropped out of school, againstthe advice of his father.

The sentencing judge stated that the accused “was candid in admitting that he earned cash by stealing, sellingdrugs and guns, and doing other things with and for his gang” (at para 16). [12] The sentencing judge also noted that, since being remanded in custody for these charges, the accused had becomeinterested in his Aboriginal culture. His father had expressed support for him and would like him to return to live in Red Sucker Lakeupon his release from custody.

While the accused has participated, and done well, in programming while in custody, he also has a seriesof institutional infractions that the sentencing judge described as “minor” (at para 18). [13] The sentencing judge acknowledged that the accused was assessed as a very high risk to reoffend in the pre-sentencereport, all based on his personal history. Nonetheless, he concluded that rehabilitation was a factor (at para 21): Overall, the Pre-Sentence and Gladue Report identified numerous areas of concern, but also demonstrate[d] positive features.

Those features of his personality, while not fully matured, provide hope and, especially given his age and criminal record, suggest thatfor [the accused] rehabilitation is a real and live factor. [14] With respect to the aggravating and mitigating factors, he stated (at paras 23-28): The aggravating circumstances here are particularly serious. They are essentially the facts I laid out earlier. Most distinct is that [theaccused] carried a loaded .22 calibre sawed-off rifle in all six robberies.

Moreover, he pointed it at some cashiers and twice there werecomments about shooting it, and all this while he was under both a court order and probation order not to possess any weapon. Further,none of these offences were crimes of impulse or opportunity but rather were quite deliberate. In addition, it is an aggravating factor thathe committed these robberies at the instigation of the street gang that he was associated with. In other words, he did this on both theirand his behalf. Victim impact statements from the cashiers who were robbed were not produced.

However, one proprietor of one store expressed hisconcern that cashiers are vulnerable and that the threat of robberies made it more difficult to attract people to this type of job. Further, although not an aggravating factor, [the accused] has a criminal record as a youth for a similar offence, robbery, albeit notwith a firearm. While I was not provided with the factual context for that conviction, I note however that he received a sentence of only24 days’ pre-sentence custody plus probation. This serious but limited criminal record disentitles him to some leniency that a firstoffender might otherwise warrant.

Finally, as well, I recognize that Probation Services has concluded that [the accused] is a very high risk to reoffend. This is in large measure driven by his socio-economic background as I have described. As to the mitigating circumstances, they are few. They include that:

a) the victims were not physically hurt during the altercation; b) [the accused] was motivated in part to do these robberies because of substance abuse;

c) while serious, the robberies were not sophisticated, well though-out crimes. As noted, during the last one he asked strangers if they wanted to participate and told them his real name; and

d) he cooperated with police. Further, I accept that [the accused] is genuinely remorseful for what he did and understands the impact of his criminal behaviour on the victims. He demonstrates some empathy. He accepted responsibility for his actions, not only by pleading guilty but by confessing to the robberies upon arrest. Finally, Gladue factors also come into play here.

While armed robbery offences of the nature here are particularly grave, the mitigating factors and [the accused]’s background, including being 19 years old at the time and his limited criminal record when he committed these offences, provide a sufficient basis to consider lower moral blameworthiness as explained by the Supreme Court of Canada in Gladue and Ipeelee, [2012 SCC 13, [2012] I SCR 433]. [ 15 ] The sentencing judge next reviewed the sentencing precedents presented by the Crown.

He noted, and later adopted, five decisions from this Court as reflecting “similar sentences for similar offenders” (at para 33): R v Draper (TG) , 2010 MBCA 35 , 251 ManR (2d) 267; R v Wozny (CP) , 2010 MBCA 115 , 262 ManR (2d) 75; R v Taylor (MA) , 2010 MBCA 103 , 262 ManR (2d) 43; R v Maroti (M) , 2010 MBCA 54 , 255 ManR (2d) 115; and R v Kozussek , 2013 MBCA 52 (the five Manitoba cases). [ 16 ] The sentencing judge rejected three cases upon which the Crown was relying as not being similar to the current case. [ 17 ] After stating that the primary sentencing factors were denunciation, deterrence and rehabilitation, the sentencing judge concluded (at para 33): What then is a fit and appropriate sentence for [the accused] for these offences?

I find that it is a global sentence of eight and one- half years. Such a sentence reflects not only the critical sentencing purposes and principles, but chiefly, the gravity of the crimes and his moral blameworthiness for it, including Gladue considerations. While it is a significant penitentiary sentence, it is not one which should remove hope or incentive for [the accused] to better himself. It is also in line with similar sentences for similar offenders, as demonstrated by the cases I referred to earlier, albeit perhaps at the higher end of the range.

This is warranted because of the frightful distinguishing feature here of taking a loaded firearm to intimidate the cashiers. The danger that presented, including the potential to seriously injure or kill innocent people, even if [the accused] did not intend that, was very real. Further, even though I am dealing with the sentence as a spree, it cannot be lost that he committed six robberies, which is more aggravating than say four, and that needs to be reflected in the sentence -- there is no free ride or volume discount.

On the other hand, but for his age, Gladue factors, his limited record and that he has never been sentenced to a penitentiary before, let alone any significant jail time, a 10-year sentence would have been more appropriate. [ 18 ] Finally, the sentencing judge gave the accused 45 months of credit for the 30 months that he had spent in pre-sentence custody, calculated on a 1.5:1 basis, and he made various ancillary orders. These aspects of the sentence have not been appealed. IV.

THE POSITIONS OF THE PARTIES The Crown’s Position [ 19 ] The Crown’s position is that the sentencing judge erred in principle by failing to appreciate the significance of the circumstances of the offences in this case.

It argues that the five Manitoba cases set out in para 15 herein, upon which the sentencing judge relied, relate to “cocaine addicts who commit desperate crimes of opportunity with whatever household items are at hand”, while this accused has committed “deliberate, gang-related robberies carried out with a loaded prohibited firearm.” It argues that the features in this case are not merely aggravating factors justifying a sentence at the higher end of the range of sentences in the five Manitoba cases but are crimes of a different order, committed in different circumstances. [ 20 ] The Crown argues that this robbery is a crime different from those upon which the sentencing judge relied because: - The use of a firearm increases the fear factor for the victims and is more likely to result in injury or death, whether intentional or not, making the robbery much more dangerous than a robbery with no weapon or one involving a non-firearm weapon. - A robbery with any firearm is subject to a minimum sentence of four years, which increases to five years where the firearm is restricted or prohibited, while robbery simpliciter , which includes robbery with a weapon other than a firearm, has no minimum sentence. - A robbery with any firearm, whether or not it is prohibited or restricted, “committed for the benefit of, at the direction of, or in association with, a criminal organization,” is subject to a minimum sentence of five years’ incarceration ( section 344(1) of the Criminal Code ). [ 21 ] The Crown points out that the five-year minimum sentences for robbery with a prohibited or restricted firearm and for robbery with a firearm in association with a gang are each twice as long as the sentence of two and one-half years that this Court suggested, in Wozny , would be an appropriate sentence for one robbery with a knife.

This, it argues, makes the former offences different

crimes of a distinct order from the latter. Thus, its position is that the sentencing judge erred in his application of the proportionality principle, because the sentence that was imposed was not proportional to the sentences imposed for similar offences committed in similar circumstances. [ 22 ] The Crown also argues that the eight and one-half-year sentence that was imposed by the sentencing judge was unfit.

Its position is that, even if the minimum sentence of five years was appropriate for one robbery with a prohibited weapon, a global sentence of eight and one-half years would not reflect the minimum penalty for even two such robberies and, therefore, could not be appropriate for six robberies, as four of the robberies would be left unaddressed. [ 23 ] The Crown’s position is that the sentence is unfit for the following reasons: - these offences involved both a prohibited firearm and were gang-related, each of which, separately, attract the five-year minimum sentence; - the firearm was loaded during all of the robberies, and possessing a loaded firearm is a separate offence that, in most cases, attracts a three-year sentence, apart from its use in a robbery; - this firearm was particularly dangerous because its safety was broken, making it more susceptible to being fired accidentally; - the accused pointed the firearm at several of the victims, which is a further separate offence; - the accused was masked for the robberies; - the accused was on probation and was prohibited from possessing firearms during all of the robberies; further, he was told that a warrant had been issued for violating his probation, and he committed a further robbery on that day; - the accused had a “relatively lengthy” criminal record as a youth that included a prior robbery and weapons-related offences; - the accused was accompanied by a youth for two of the robberies and invited strangers to join in for another robbery; - the pre-sentence report identified the accused as being a “very high risk” to re-offend; and - while the accused attended and participated in some programming while on remand, he was also involved in institutional misconduct and had a terrible record of non-compliance when released in the past. [ 24 ] The Crown acknowledges that there are some mitigating factors, including the accused’s young age, his guilty plea and co-operation with the police when arrested.

It also acknowledges that there was some evidence of Gladue factors. [ 25 ] The Crown’s position is that, in sum, a sentence of six or seven years would be appropriate for each of the robberies individually. This, it argues, makes the eight and one-half-year sentence for six robberies unfit. It argues for a total sentence of 15 years before credit for time spent in pre-sentence custody.

The Accused’s Position [ 26 ] It is the accused’s position that the Crown has incorrectly reduced the calculation of the applicable range of sentence to the type of offence and the type of weapon used, when a wide range of factors may appropriately affect the determination of the applicable range.

He argues that the sentencing judge did not limit his decision on range to the type of offence and of weapon used, but he also considered: - the degree of responsibility of the offender; - denunciation and specific and general deterrence; - the prior record of the accused, which was a dated youth record; - the age of the accused; - the fact that no victims had been physically injured; - that substance abuse was a partial motivation; - that the robberies were not sophisticated; - that the accused confessed immediately upon being arrested; - the accused’s insight into his culpability, his understanding of the impact of his actions on the victims and his efforts towards rehabilitation since his arrest; and - the impact of Gladue and Ipeelee factors on moral blameworthiness ( R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433). [ 27 ] The accused argues that the sentencing judge took into account the factors listed by the Crown in coming to the conclusion that a sentence of 10-12 years would normally be acceptable before taking into account the mitigating factors. [ 28 ] The accused agrees with the sentencing judge that the cases upon which the Crown relied at the sentencing hearing were not applicable due to the significant difference in the underlying facts, which were not remotely similar to this case.

[29] The accused argues, in

summary, that the sentencing judge referred to and correctly applied the correct sentencingprinciples. Further, he states that the sentencing judge did not err as regards the applicable range of sentence or his appreciation of thecircumstances of the offences. [30] Regarding the fitness of the sentence, the accused argues that the sentencing judge chose to place considerable emphasison the accused’s understanding of the consequences of his actions, his capacity for rehabilitation and a proper consideration of theGladue and Ipeelee factors in arriving at a global sentence of eight and one-half years.

He argues that the sentencing judge acted withinhis discretion and that the sentence is fit and just. V. STANDARD OF REVIEW AND SENTENCING RANGES [31] The standard of review on a sentence appeal was very recently considered by the Supreme Court of Canada in R vLacasse, 2015 SCC 64 at paras 36-55, [2015] 3 SCR 1089 (see also R v Lloyd, 2016 SCC 13 at paras 52-53).

The following is asummary of the principles set out by Wagner J for the majority in Lacasse: - Appellate courts may not intervene lightly in a sentence, because sentencing judges have a broad discretion to impose the sentencethey consider appropriate within the limits established by the law (see para 39). - The classic explanation of the standard of review is that found in R v M (CA), (SCC), [1996] 1 SCR 500 (at para90): Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See para 41.) - While an error in principle, the failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigatingfactor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it withthe sentence that it considers appropriate, every such error will not necessarily justify appellate intervention.

Appellate intervention willonly be justified where it appears from the sentencing judge’s decision that the error had an impact on the sentence (see paras 11, 44). - Likewise, an appellate court cannot intervene simply because it would have weighed the relevant factors differently than did thesentencing judge, because the weighing and balancing of the relevant factors is what the exercise of discretion is about.

Only if, byemphasizing one factor or by not giving enough weight to another, the sentencing judge exercises his or her discretion unreasonablyshould an appellate court interfere on the ground that the trial judge erred in principle (see para 49). - The choice of sentencing range or of a category within a range falls within the sentencing judge’s discretion and cannot by itselfconstitute reviewable error. An appellate court may not intervene on the ground that it would have put the sentence in a different rangeor category.

It may only intervene in this circumstance if the sentence imposed is demonstrably unfit (see para 51). More will be said ofthis below. - It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. The very high threshold of“demonstrably unfit” for reviewing the fitness of a sentence has also been expressed as “clearly unreasonable”, “clearly or manifestlyexcessive”, “clearly excessive or inadequate” and “a substantial and marked departure” (at para 52). [32] Pursuant to

section 718.1 of the Criminal Code, the fundamental principle of sentencing is that of proportionality. (See Rv Nasogaluak, 2010 SCC 6 at paras 39-46, [2010] 1 SCR 206; Ipeelee at paras 34-39; and Wozny at paras 28-40.) Wagner J explainedthis as follows in Lacasse (at para 53): This inquiry [as to whether to intervene after reviewing the fitness of a sentence] must be focused on the fundamental principle ofproportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of theoffence and the degree of responsibility of the offender”.

A sentence will therefore be demonstrably unfit if it constitutes anunreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accusedhim or herself and to the offence committed by the accused, and by comparison with the sentences imposed for similar offencescommitted in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s.718.2(

a) and (

b) of the Criminal Code. [33] Regarding the use of judge-created sentencing ranges, categories, starting points and tariffs as measures of parity insentencing, Wagner J stated (at paras 57, 60, 67): . . . Sentencing ranges [and starting points and tariffs] are nothing more than summaries of the minimum and maximum sentencesimposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However,they should not be considered “averages”, let alone as straightjackets, but should instead be seen as historical portraits for the use ofsentencing judges, who must still exercise their discretion in each case . . . . In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: [R v Nasogaluak, 2006 SCC 6, [2010] 1SCR 206] at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. . ..

Like the range itself, the categories it comprises are tools whose purpose is in part to promote parity in sentencing. However, adeviation from such a range or category is not an error in principle and cannot in itself automatically justify appellate intervention unlessthe sentence that is imposed departs significantly and for no reason from the contemplated sentences. Absent an error in principle, anappellate court may not vary a sentence unless the sentence is demonstrably unfit. VI. THE LAW - ROBBERY [34] The accused was convicted of robbery and was liable to be sentenced under section 344(1)(

a) of the Criminal Code. Thisprovision states: 344(1) Robbery Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission ofthe offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, toimprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishmentof imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [35] It is important to note that this provision has been changed on two occasions in recent years. Up until 1995, the sentencefor any robbery was a maximum period of imprisonment for life, with no minimum sentence.

In 1995, the government introduced thefirst minimum sentence for robbery, which provided for a minimum period of imprisonment of four years for any robbery in which afirearm was used. [36] The most recent amendment, and the one which applies to this accused, was enacted in 2008 and added two new offenceseach with an increased minimum sentence, being five years for robbery using a prohibited or restricted firearm and five years for robberywith any firearm that is committed for the benefit of, at the direction of, or in association with a criminal organization.

The 2008amendments also added, for the first time, an increased minimum sentence for second or subsequent offences. VII. ANALYSIS [37] The essence of this appeal is whether the sentencing judge erred in principle by failing to appreciate the circumstances ofthe offences, resulting in a sentence that was not proportional to sentences for similar offences in similar circumstances and, therefore,not fit. Similar Offences [38] The sentencing judge used, as similar offences, the five Manitoba cases (see paras 30, 33).

While they all involverobbery, I am of the view that they are not similar offences because none of them involves the use of any form of firearm and none issubject to any mandatory minimum sentence, much less one of five years. [39] Jurisprudence is replete with statements as to the dangerousness of firearms, which has supported Parliament’sincreasingly stringent measures over the years to deal with offenders where such weapons are involved, including by prohibiting thepossession and use of some firearms and ammunition, by setting up firearms registration regimes for other firearms and by enactingseparate firearms offences with mandatory minimum sentences. (See, for example, Attorney General of Canada v Pattison (1981), 1981ABCA 98 , 30 AR 83 (CA); McGuigan v The Queen, (SCC), [1982] 1 SCR 284; R v Schwartz, (SCC), [1988] 2 SCR 443; R v McDonald (C) (1998), (ON CA), 111 OAC 25; Reference re Firearms Act (Can),2000 SCC 31, [2000] 1 SCR 783; R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90; and R v Wust, 2000 SCC 18, [2000] 1 SCR 455).

Evenin R v Nur, 2015 SCC 15, [2015] 1 SCR 773, wherein the majority struck down the mandatory minimum sentence for possession of aprohibited or restricted firearm when loaded or close to ammunition in section 95(2)(

a) of the Criminal Code, McLachlin CJC, for themajority, stated (at paras 1, 83): Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, whilerestricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws. . . .

Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and todiscourage gun owners from making mistakes. . . . [40] She also made it clear that the formerly mandatory minimum sentences of three and five years would remain appropriatesentences in many cases, including in the two appeals that were being considered. [41] Thus, given the well-recognized dangerousness of firearms, particularly prohibited and restricted firearms, and the stepsthat Parliament has taken to create separate offences and separate sentencing regimes where a firearm is involved, I am of the view that it

would be an error in principle to treat offences that address the possession or use of firearms as being similar to those that do not. Further, it is of little value to compare an offence that has a mandatory minimum sentence, especially one of five years, with one that has no mandatory minimum sentence. [ 42 ] Arbour J, writing for herself and McLachlin CJC in Morrisey , addressed the effect of a mandatory minimum sentence (at para 75): . . .

By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2 ( b ), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [ 43 ] While the majority in Morrisey did not comment on this statement, the idea that sentences rise when Parliament enacts or increases a mandatory minimum sentence and/or raises the maximum sentence is implicit in Wagner J’s reasons in Lacasse .

One of the problems that he outlines with the use of sentencing ranges is that they are really only “historical portraits” (at para 57) and that Parliament has regularly raised both the level of mandatory minimum sentences and maximum sentences.

Further, he states (at para 7): The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. [ 44 ] While that comment was made in the context of the increase in the legislated sentencing regime for drinking and driving offences at issue in Lacasse , it would apply equally to the increased sentencing regime for the firearms offences at issue in this case. Similar Circumstances [ 45 ] I am also of the view that the five Manitoba cases do not involve similar circumstances to those in this case.

In each of those cases, the accused was a drug addict and committed the robberies to obtain money to purchase more drugs to feed his habit. While the accused in this case stated that he had been using alcohol and drugs, he nowhere in the lengthy pre-sentence report attributed these robberies to a need to get quick money to feed his drug habit.

In fact, he stated clearly that he committed these offences as part of his gang lifestyle, which is a significantly different, and more serious, circumstance than committing robberies in desperation to buy more drugs to support a drug addiction. [ 46 ] As part of the gang lifestyle, which he had been living for over two years at the time of his arrest, the accused acknowledged being heavily involved in serious criminal activity for the gang for which he was never arrested or convicted.

This was described in the pre-sentence report: [The accused] described his day-to-day activities as selling drugs and guns as part of his responsibilities for supporting his gang lifestyle, and being heavily involved in substance abuse. The [accused] reported he had been associated with a well known Winnipeg gang; but he opted to “roll out” when he was placed in remand. The [accused] described earning cash for his gang through stealing and resale of merchandise, and trafficking drugs and guns. . . .

The [accused] acknowledged as a gang member, there had been times when he was required to find/follow other people, and this also included having to beat up and or harass others. [ 47 ] In this case, while this accused did not have as lengthy a record as is sometimes seen, that record does not tell the entire story of his past criminal behaviour. This is explained in Clayton C Ruby, Gerald J Chan & Nader R Hasan, Sentencing , 8th ed (Markham: LexisNexis, 2012) (at paras 8.16-8.17, 8.83): . . .

The absence of a criminal record is a mitigating factor on sentencing in that it reinforces the argument that the accused is of good character and reputation. Such a consideration is appropriate to an isolated criminal act or one that is committed on the spur of the moment in the context of an otherwise blameless record. Where there have been “numerous criminal acts that have been deliberately planned and carried out over a lengthy period of time”, however, the lack of a criminal record loses much of its force.

Thus, when dealing with the participants in “an organized, on-going criminal operation”, the offenders’ unblemished records may be of reduced significance compared to when the charges concern “isolated criminal acts or those suddenly done because of personal need, or on the spur of the moment”. The principal use of a criminal record is to show the character of the offender, with a view to indicating whether, and to what extent, society requires protection from him. [ 48 ] Thus, both the accused’s gang lifestyle and his associated criminal lifestyle distinguish him from the accused in the five

Manitoba cases, such that the circumstances of the offences are not similar. [ 49 ] Another circumstance to which the sentencing judge referred was that of the absence of physical harm to the victims. While the offence of robbery is inherently violent, in that it involves taking something from someone without consent (stealing), it includes both stealing using physical violence, and stealing with threats of violence or with the use of an offensive weapon or an imitation thereof (see

section 343 of the Criminal Code ). The latter do not require any physical violence or physical harm, with the result that physical violence and/or harm are not essential elements of all robberies. In fact, many, if not most, robberies take place without any physical violence or physical harm to the victims. [ 50 ] The effect on sentence of physical violence and physical harm caused by an accused while committing an offence is addressed in Sentencing (at para 5.141): . . .

The fact that an offender did not apply violence to a victim is not a factor in the mitigation of sentence, but simply the absence of a fact that might aggravate the sentence. [ 51 ] I am of the view that the sentencing judge erred in law in finding that the absence of physical harm to the victims during the robberies was a relevant factor when determining the appropriate sentence in this case. Effect of the Errors on Sentence [ 52 ] For the reasons set out above, I would find that the sentencing judge erred in principle in his

interpretation and application of the proportionality principle. This error in principle will only justify appellate intervention where it appears from the sentencing judge’s decision that the error had an impact on the sentence ( see Lacasse at paras 11, 44 ). [ 53 ] The error in the application of the proportionality principle arose from the sentencing judge’s adoption of the five Manitoba cases as the basis for the sentence that he imposed.

He stated that the eight and one-half-year sentence was “in line with similar sentences for similar offenders . . . albeit perhaps at the higher end of the range” (at para 33). Given that those cases formed the basis of his analysis, it is clear that they had an impact on the final sentence. It is thus open to this Court to inquire into the fitness of the sentence and replace it with the appropriate sentence. ( See Lacasse at paras 43, 44 .) The Appropriate Sentence [ 54 ] The accused is being sentenced under section 344(1) (

a) of the Criminal Code for committing six robberies, each with a prohibited firearm. As noted earlier, the Crown argues that the appropriate sentence for one offence in the circumstances of this case would be six to seven years’ incarceration and that the appropriate global sentence for all six robberies, sentenced concurrently, would be 15 years’ incarceration. The accused argued at the sentencing hearing for a sentence of between seven and ten years’ incarceration for all six robberies.

At the appeal hearing, he argued that the appropriate sentence for one robbery would be just above five years, and that the global sentence of eight and one-half years imposed by the sentencing judge for all six robberies is fit. [ 55 ] The mandatory minimum sentence of five years’ incarceration is the sentence that would be imposed on the best offender and the least serious offence.

As stated by Arbour J in Morrisey , this minimum should not become the standard sentence for all but the worst offenders and most serious offences, as this would both defeat the intention of Parliament in enacting the sentence and offend the principles of proportionality and fair and just sentencing. [ 56 ] Determining an applicable range of sentence from past decisions is challenging because of significant variations in the circumstances of the offences and the offenders and the effect of the 2008 changes in the legislation.

There are, however, many aggravating circumstances in this case that differentiate these robberies from those committed by the best offender in the least serious circumstances and require a meaningful increase above the mandatory minimum sentence: the firearm was loaded for all of the robberies; the firearm was dangerous due to the broken safety mechanism; the accused was disguised for all of the robberies; the accused committed the last robbery on the same day that he was told that there was a warrant out for his arrest for violating his probation; the accused was a member of a gang and acknowledged that he committed the robberies with and for the gang (more of this below); and the accused was identified as being a “very high risk to re-offend” in the pre-sentence report.

Further, while the robberies were not sophisticated, they were clearly planned, involving the use of a weapon and a disguise. [ 57 ] I have not included the use of a prohibited firearm as an aggravating circumstance because it has already been taken into account as an essential element of the offence for which the accused has been convicted. (See R v Flight (RI) , 2014 ABCA 380 at para 4 , 584 AR 392 ; and R v McGarrett Johnson (R) , 2015 MBCA 50 , 319 ManR (2d) 114 .) [ 58 ] While the accused stated that he was abusing alcohol and drugs, he did not attribute any of the robberies to his drug addiction or a need to obtain money to purchase more alcohol or drugs to feed a habit – he said that it was part of his gang lifestyle. [ 59 ] In this case, I view the accused’s involvement in the gang and his having committed these robberies with and for the gang as being seriously aggravating circumstances.

Parliament has recognized this by enacting

section 718.2 (a)(iv) of the Criminal Code to that effect. Street gangs of primarily young men have become a serious problem both in Winnipeg and in northern Manitoba, enticing young men into a criminal lifestyle, disrupting families and posing a serious threat to peaceful neighbourhoods. This is evidenced by this accused’s admission that he has been involved on a daily basis in the sale of drugs and guns and has carried out acts of harassment, threats and violence for the gang.

The fact that a crime like robbery is committed with and for the benefit of a gang requires that the resulting sentence express society’s denunciation of such conduct and attempt to deter others. [ 60 ] There were other aggravating circumstances that occurred in some, but not all, of the robberies: the accused was

accompanied by a youth for two of the robberies; the accused invited three strangers to accompany him for one of the robberies; andthere was a threat to shoot in two robberies. [61] As found by the trial judge, the mitigating circumstances are the youthfulness of the accused; his early admission to theoffences upon being arrested and his eventual guilty plea; the sentencing judge’s findings that the accused was remorseful for his actionsand that rehabilitation was a “real and live factor” (at para 21); and the Gladue factors.

While the Gladue factors are relevant, theaccused stated that no one in his family was involved with the residential schools or placed in an adoptive home during what is referredto as the 1960s scoop. There were no alcohol or drug abuse issues in his immediate family, and no issues related to physical or sexualabuse. While he spent his early years with his grandmother and aunts, they were, and remain, loving and supportive. His father workedhard to be able to send money home to support the accused and his sister, and he, also, remains loving and supportive of the accused.

Moreover, the effect of Gladue factors lessens as the offences become more serious. [62] While the sentencing judge found that the accused’s criminal record was “limited” (at para 25), it is sufficiently seriousthat, when it is considered in the context of his admittedly criminal lifestyle in the years prior to his arrest, the accused is not entitled toany leniency based on that record (see paras 46-48 herein). [63] In addition to the robberies, the accused pled guilty to pointing a firearm in two of the robberies, to five counts ofpossession of a firearm contrary to a prohibition order and to six counts of failing to comply with a probation order.

While the sentencesfor these offences are to run concurrently to the sentences for the robberies (and have not been appealed), they must also be taken intoaccount in determining the appropriate sentence for the underlying robberies on the basis that no offence should go unpunished. [64] Keeping all of these circumstance in mind, and given that the lesser related offences were being sentenced on a concurrentbasis, a fit sentence for this accused for one robbery charge would be a period of incarceration of seven years.

While there is rarely acase that is exactly the same, the following decisions are of assistance: R v Gagne (C) (1998), (ON CA), 111 OAC153; R v Mearow, (ON CA); R v RMS, 2007 BCCA 502, 247 BCAC 189; R v Crane, 2011 ABCA 17 ; R vParry (JD), 2012 ONCA 171, 289 OAC 201; R v Rocheleau (M), 2013 ONCA 679, 311 OAC 295; and R v Pabla, [2014] OJ No 1293(QL) (Ont Ct J). [65] This leads to the challenging question of what is a fit sentence for all six robberies. As the sentencing judge noted, thereis no free ride or volume discount (see para 33). The number of offences is a relevant sentencing factor.

In R v NAS, 2007 MBCA 97,220 ManR (2d) 43, this Court adopted the following comments of the Alberta Court of Appeal in R v Johnas (1982), 1982 ABCA 331, 41 AR 183 (at para 20): . . . [M]ultiple offences are in a category of their own. The robber is an offender who frequently commits multiple offences, forcingthe trial judge to make the delicate balance between ensuring that none of the offences is “free” while also observing the totalityprinciple in sentencing. To achieve that balance between these two disparate factors is a difficult task which is, at best, a compromise.

If all offences after the first one are punished by sentences which are concurrent to the first, it will soon be observed by offendersthat, once one offence has been committed, there is nothing to deter them from subsequent offences.

Nevertheless the totality principlerequires the trial judge who has correctly applied the rules relating to concurrent and consecutive sentences and who has arrived at theappropriate sentence for each separate offence then to look back to ensure that the totality of the consecutive sentences is not excessivefor this offender, as an individual, even given some weight to the additional offences.

Where the total projected sentence is excessive,the individual sentences must then be adjusted below the figure which would be appropriate for each offence taken in isolation, so thatthe total sentence is proper. . . . [66] The Court in Johnas was dealing with consecutive sentences and the principle of totality, which only applies to taking alast look at consecutive sentences – it does not apply to concurrent sentences for multiple offences.

That said, the underlying concernsrelated to sentencing for multiple offences, whether taking a last look at consecutive sentences or setting a global sentence for multipleconcurrent offences, are similar – addressing the entirety of the criminal behaviour in a manner that is proportional to the circumstancesof the offence and the offender. Thus, this Court in NAS adopted the above reasoning, even though it was dealing with a global sentencefor a number of robberies. [67] As noted above, a fit sentence for one robbery in these circumstances would be seven years’ incarceration.

Taking intoaccount that there were six robberies, all similarly serious, a fit global sentence would be a period of incarceration of eleven yearsconcurrent on each robbery count. VIII. DECISION [68] For the reasons set out herein, I would grant the Crown’s motion for leave to appeal the sentence in this matter. I wouldalso grant the Crown’s appeal and set aside the sentence imposed by the sentencing judge for the robbery convictions. In place of theeight and one-half years’ concurrent sentence for each of the six robberies, I would substitute a sentence of 11 years concurrent.

Fromthat I would deduct a credit of 45 months for pre-sentence custody, as calculated by the sentencing judge (which was not appealed),leaving a sentence to be served of seven years and three months concurrent for each of the six robberies. In all other respects, I wouldconfirm the sentence of the sentencing judge. JA I agree: CJM I agree: JA