R v McIvor, 2018 MBCA 29

Citation: R v McIvor, 2018 MBCA 29 Date: 20180323 Docket: AR17-30-08798 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant ) Respondent ) D. L. Carlson ) for the Respondent - and - ) ) Appeal heard: BRADLEY JAMES MCIVOR ) November 3, 2017 ) (Accused) Appellant ) Judgment delivered: ) March 23, 2018 On appeal from 2017 MBPC 11 LEMAISTRE JA [ 1 ] This case considers the constitutionality of the five-year mandatory minimum sentence for robbery with a prohibited firearm pursuant to section 344(1) (a)(

i) of the Criminal Code (the Code ). The accused seeks leave to appeal and appeals the five-year jail sentence imposed for robbery with a prohibited firearm on the basis that the mandatory minimum sentence violates

section 12 of the Canadian Charter of Rights and Freedoms (the Charter ) and cannot be saved by

section 1 . [ 2 ] At the commencement of the appeal hearing, we amended the information pursuant to section 683(1) (

g) of the Code to refer to section 344(1) (a)(

i) rather than section 344(1) ( a.1 ), to be consistent with the applicable penalty provision. Counsel were not opposed to the amendment. [ 3 ] The accused pled guilty to the following offences pursuant to the Code : robbery with a prohibited firearm ( section 344(1) (a)(i)), pointing a firearm (

section 87 ), carrying a concealed weapon ( section 90(1) ) and unauthorized possession of a firearm ( section 91(1) ). He filed a motion pursuant to section 24(1) of the Charter to strike down the mandatory minimum sentence for robbery with a prohibited firearm on the basis that the mandatory minimum sentence of five years’ incarceration for a first offence is grossly disproportionate to the gravity of the offence and constitutes cruel and unusual punishment pursuant to

section 12 of the Charter . [ 4 ] The sentencing judge dismissed the motion and imposed the five-year mandatory minimum sentence for robbery with a prohibited firearm. She imposed concurrent sentences for the remaining counts and reduced the sentence to account for pre-sentence custody. [ 5 ] On the appeal, the accused asserts that the sentencing judge erred when she found that the five-year mandatory minimum sentence was not grossly disproportionate within the meaning of

section 12 of the Charter as applied to the accused or in reasonably foreseeable circumstances. [ 6 ] For the reasons that follow, I would dismiss the appeal. Background

[ 7 ] The sentencing judge succinctly summarized the facts of the offence as follows (at paras 6-11): On January 19, 2016 [the accused] and another male, who has not been identified, attempted to rob the victim in this matter Mr. Brooks with a sawed off rifle. Prior to his involvement with the two accuseds Mr. Brooks had observed them to have stolen a bicycle from a male youth on McPhillips Street. The two co-accused continued to harass the youth who sought refuge in the 7-11 at McPhillips and Selkirk Avenue. While Mr.

Brooks was escorting the scared youth away from the area, he was confronted by [the accused] and the other male. During the confrontation the two demanded Mr. Brooks’ property. Mr. Brooks and the youth backed into the roadway on McPhillips, at which time the youth ran away. [The accused] pointed the sawed off rifle at Mr. Brooks and threatened to shoot him. Mr. Brooks challenged him both verbally, and by producing a bottle to defend himself, after which [the accused] and his co-accused backed down and left the immediate area.

The Police arrested [the accused] a short time later in possession of the rifle, hidden in his sleeve. [The accused] maintains, and the Crown accepts, that he knew the rifle was not loaded. He made a fulsome [sic] statement to police upon his arrest. The weapon used was found to be a .22 calibre semi automatic rifle with both the stock and barrel sawed off, and the serial number removed. By virtue of its altered size the rifle is a prohibited firearm. The rifle was unloaded when recovered from the accused, but was determined to be fully functioning and in proper working order.

While this robbery is properly described as an unsophisticated one, it was nevertheless undertaken with deliberate planning. The Sentencing Hearing [ 8 ] At the sentencing hearing, the accused argued that an appropriate sentence, absent the mandatory minimum, would be two years’ incarceration and, therefore, the five-year mandatory minimum sentence was grossly disproportionate.

He also argued that there was no basis to increase the mandatory minimum sentence from the four-year mandatory minimum sentence for robbery with a firearm, particularly in light of the fact that the difference between the length of the prohibited firearm used by the accused and the length of a non-prohibited firearm is inconsequential (94 millimetres or almost 4 inches). Finally, he argued that the penalty provision does not differentiate between loaded or unloaded firearms and does not require proof of knowledge that the firearm was loaded.

The accused relied upon three hypothetical cases to support his assertion that the mandatory minimum sentence was grossly disproportionate for reasonably foreseeable cases. [ 9 ] The Crown argued that an appropriate sentence in this case would be between five and six years’ incarceration. It relied upon the four-year mandatory minimum sentence for robbery with a firearm in section 344(1) (a.1), which has been found not to contravene

section 12 of the Charter , and argued that the five-year mandatory minimum sentence for robbery with a prohibited or restricted firearm is justifiable due to the increase in the risk when a prohibited or restricted firearm is used in the commission of the robbery.

Finally, the Crown asserted that the hypotheticals upon which the accused relied were not relevant to the Code provision in question. [ 10 ] Following the procedure outlined in R v Lloyd , 2016 SCC 13 and R v Nur , 2015 SCC 15 , the sentencing judge found that a sentence in the range of three and one-half to four years would be appropriate in the circumstances and, therefore, a five-year sentence was not grossly disproportionate for the accused.

She also found that the mandatory minimum sentence does not capture a range of conduct that “would result in the application of a grossly disproportionate sentence for other offenders” (at para 25). She denied the accused’s motion and sentenced him to five years’ incarceration less time spent in pre-sentence custody. Positions of the Parties [ 11 ] At the appeal, the accused accepted the sentencing judge’s finding that, absent the mandatory minimum sentence, the appropriate sentence in this case would have been three and one-half to four years.

He also conceded that the sentencing judge followed the appropriate legal procedure and applied the correct legal test for the

section 12 Charter challenge. [ 12 ] However, he argued that the sentencing judge erred by dismissing the Charter challenge. He took the position that this Court should find that section 344(1) (a)(

i) of the Code contravenes

section 12 “if not necessarily for the disproportionate effect it has on [the accused], but for the effect it could have on other reasonably [foreseeable] hypothetical cases.” His position was that, if section 344(1) (a)(

i) is found to be grossly disproportionate under

section 12 of the Charter , then he should be sentenced to a period of incarceration of four years, rather than the two years that he proposed at the sentencing hearing. [ 13 ] The Crown maintained its position at the sentencing hearing that five years is an appropriate starting point for robbery with a prohibited or restricted firearm and argued that the five-year mandatory minimum sentence is not grossly disproportionate as applied to this accused or in any reasonable hypothetical case.

Issue and Standard of Review [14] The issue in this case is whether the sentencing judge correctly concluded that the five-year mandatory minimumsentence under section 344(1)(a)(

i) of the Code is not grossly disproportionate within the meaning of

section 12 of the Charter, asapplied to the accused or in reasonably foreseeable circumstances. [15] The parties agree, as do I, that this issue raises a question of law and the standard of review for the focussed issue onthis appeal is correctness (see R v Farrah (D), 2011 MBCA 49 at para 7). Analysis [16]

Section 12 of the Charter provides that, “Everyone has the right not to be subjected to any cruel and unusual treatmentor punishment.” [17] The accused must meet a high standard in order to establish that a sentence is “cruel and unusual” (Lloyd at para 24). Asentence will only be found to be grossly disproportionate in the clearest of cases, where it is “so excessive as to outrage standards ofdecency” (ibid) and where it is “‘abhorrent or intolerable’ to society” (ibid). See also Lloyd at paras 22-23, 45.

A sentence that is merelyexcessive or unfit is not grossly disproportionate unless it would “shock the conscience of Canadians” (at para 33). [18] The process described in Lloyd and Nur for determining whether a sentence contravenes

section 12 of the Charter is asfollows: • The court must first determine the appropriate range of sentence for the accused absent the mandatory minimum penalty. • The court must next determine whether the mandatory minimum sentence would be grossly disproportionate having regard,firstly, to what would be appropriate for this accused absent the mandatory minimum sentence and, secondly, to reasonably foreseeablehypothetical cases. • Finally, if the mandatory minimum sentence is found to breach

section 12 of the Charter, then the court must determinewhether the provision is saved by

section 1 of the Charter. What is the Appropriate Range of Sentence for this Accused Absent the Mandatory Minimum Sentence? [19] As previously stated, the accused accepted the sentencing judge’s finding that the appropriate sentence in this casewould have been three and one-half to four years absent the mandatory minimum sentence. [20] In my view, the sentencing judge’s finding that a sentence of three and one-half to four years’ incarceration would beappropriate, absent the mandatory minimum was at the low end of the appropriate range.

In R v Harper (J), 2016 MBCA 64, Beard JA,citing Nur at paras 82, 105, concluded that the former mandatory minimum sentences of three years for a first offence and five years fora second offence of possession of a loaded prohibited firearm not in the context of a robbery, which is a less serious offence, wouldremain appropriate sentences in many cases (see Harper at para 40). Moreover, the accused in this case had a prior criminal record forviolence.

Is the Five-Year Mandatory Minimum Sentence Grossly Disproportionate for this Accused? [21] In my view, the accused has not established that the sentencing judge erred when she found that the five-yearmandatory minimum sentence was not grossly disproportionate for this accused.

The sentencing judge considered the relevant factors,which include: the gravity of the offence, the circumstances of the offender and the circumstances of the case, the effect of thepunishment on the individual, whether punishment was necessary to achieve a valid penal purpose, whether valid alternatives to thepunishment imposed existed and punishments imposed for other crimes in the same jurisdiction (see R v Hailemolokot et al, 2013MBQB 285 at paras 11-12, citing R v Smith (Edward Dewey), (SCC), [1987] 1 SCR 1045; R v Goltz, (SCC), [1991] 3 SCR 485; and R v Morrisey, 2000 SCC 39). [22] A four-year mandatory minimum sentence for robbery with any firearm has been in force since 1996, while the five-year mandatory minimum sentence for robbery with a restricted or prohibited firearm was enacted in 2008.

A review of thejurisprudence demonstrates that sentences below four years for robberies involving a firearm either pre-date the 1996 introduction of thefour-year mandatory minimum sentence, concern an accused who was unaware that the principal was armed with a firearm or involvethe use of an imitation firearm.

See, for example, R v Johnas, 1982 ABCA 331 (one-year sentence for attempt robbery and three yearsconcurrent for each of three robberies; pre-dates the mandatory minimum sentence); Regina v Brennan and Jensen (1975), (NS CA), 23 CCC (2d) 403 (NS SC (AD)) (three-year sentence for robbery; pre-dates the mandatory minimum sentence); R vKouznetsov, 2009 BCPC 471, aff’d 2010 BCCA 585 (one-year sentence for robbery and one-year consecutive for use of imitationfirearm); R v Noor, 2009 ONCA 795 (six months for robbery and one-year consecutive for use of imitation firearm); R v Nguyen, [1993]OJ No 2322 (Ct J (Gen Div)) (three-year sentence for robbery and another unspecified charge concurrent; pre-dates the mandatoryminimum sentence); and R v Zandi, 2016 ONSC 3445 (two-year sentence for robbery; the accused was the getaway driver and unawarethe co-accused was armed). [23] Pursuant to section 84(1) of the Code, a firearm is prohibited if it has been adapted so that its total length is less than660 millimetres (26 inches) or its total length is 660 millimetres or greater, but its barrel is less than 457 millimetres (18 inches) inlength.

In the instant case, the accused possessed a firearm that was prohibited because both the stock and the barrel had been shortenedin order that the firearm could be concealed. The total length of the firearm was approximately 566 millimetres (22 inches), which isalmost 94 millimetres (4 inches) shorter than the legal total length, and the barrel of the firearm was 279 millimetres (11 inches) long,which is 228 millimetres (9 inches) shorter than the legal barrel length if the total length of the firearm is 660 millimeters (26 inches) or

longer. [24] The four-year mandatory minimum jail sentence for robbery with a firearm in section 344(1)(a.1) of the Code (section344(

a) prior to 2008) has been found to be constitutional on a

section 12 analysis (see Hailemolokot; R v McIntyre, 2017 ONSC 360; R vMcDonald (1998), (ON CA), 127 CCC (3d) 57 (Ont CA); R v Lapierre (1998), (QC CA), 123CCC (3d) 332 (Qc CA); and R v Wust (1998), (BC CA), 125 CCC (3d) 43 (BC CA), rev’d on other grounds 2000SCC 18). The accused has not challenged the four-year mandatory minimum and argues that four years would be the appropriatesentence in his case absent the five-year mandatory minimum sentence. [25] The five-year mandatory minimum sentence in section 344(1)(a)(

i) of the Code only applies when the firearm used inthe commission of the robbery is a prohibited or restricted firearm. As explained by McLachlin CJC in Nur (at para 7): The Criminal Code imposes severe restrictions and sanctions on two classes of firearms. A “prohibited firearm” includes short-barrelledhandguns, sawed-off rifles and shotguns, and automatic firearms: Criminal Code, s. 84(1). It is unlawful to possess a prohibited firearmunless the individual possessed the firearm prior to the prohibition coming into force: Firearms Act, s. 12. This grandfathering alsoapplies to next of kin.

A “restricted firearm” includes any handgun that is not a prohibited firearm, some semi-automatic firearms, andsome firearms that are less than the specified length: Criminal Code, s. 84(1). These weapons are inherently dangerous and arecommonly used in criminal activity. See also R v Mohamed, 2016 ONCJ 492 at paras 12-13; and R v Stocker, 2017 BCSC 542 at para 43. [26] As stated by the sentencing judge in this case (at para 18): Robbery with any type of firearm, even an imitation one is serious.

The use of a prohibited firearm however presents an elevated risk tomembers of the public because such weapons are easily concealed and are therefore difficult to detect.

The fact of their alteration forthis purpose adds a layer of criminal conduct that assists the perpetrator in evading detection both before and after an incident of violencesuch as this one. [27] In my view, the use of a prohibited firearm during a robbery is a more serious offence and warrants an increase from themandatory minimum sentence of four years for robbery with a firearm to five years, and the increase from four years to five years isproportionate. The additional one-year penalty cannot be said to be “so excessive as to outrage standards of decency” (Smith at 1072).

Inthe end, I am of the view that the five-year mandatory minimum sentence does not result in a grossly disproportionate sentence for thisaccused and the sentencing judge did not err in so finding. Is the Five-Year Mandatory Minimum Sentence Grossly Disproportionate in Reasonably Foreseeable Hypothetical Cases? [28] In his factum, the accused relied on three hypothetical cases in support of his argument that the sentencing judge erredwhen she found that the five-year mandatory minimum sentence is not grossly disproportionate in situations that may reasonably beexpected to arise.

He added a fourth hypothetical case at the appeal hearing and the Court considered a fifth hypothetical case not raisedby the accused.

The circumstances of the hypothetical cases are as follows: • The first hypothetical case involved an 18-year-old female who was a member of a cult and who had no criminal record whenshe acted as a lookout during a robbery committed with an unloaded prohibited firearm. • The second hypothetical case involved a firearm that had been modified to be a prohibited firearm without the offender’sknowledge. • In the third hypothetical case, the offender shoplifted with a prohibited or restricted firearm but did not use, brandish orthreaten anyone with it. • In the fourth hypothetical case, a male in his early 20s who legally owned a handgun became addicted to opioids as a result ofa debilitating sports injury.

He robbed a pharmacy while armed with his handgun in order to obtain opioid medication. After the offencebut prior to sentencing, he attended residential treatment for addictions for one year. • In the fifth hypothetical case, the offender was the getaway driver for a friend who committed a robbery with an unloadedprohibited firearm. The offender did not play a role in planning the robbery or obtaining the firearm and did not leave the vehicle orotherwise participate in the robbery, although she had the required knowledge regarding the use of the prohibited firearm.

The offenderwas a young adult with no criminal record. [29] The circumstances of the offence in the first and the fifth hypothetical cases do not warrant a reduction in the sentencesimply because the offender was the lookout or the getaway driver. In these cases, the offender would be considered to be a party to theoffence under

section 21 of the Code with the same moral culpability as the co-accused who possessed the firearm during the robbery(see R v Rocheleau, 2013 ONCA 679). The jurisprudence demonstrates that sentences for getaway drivers do not differ from sentencesfor principals who commit the robbery merely because the driver remained outside, particularly when they have similar criminal records(see, for example, R v Taylor (No 2), 1988 CarswellBC 3831 at paras 7-8 (CA); R v Roberts, 1989 CarswellBC 1079 at paras 6-7 (CA);and R v Olson, 1994 CarswellBC 981 at para 14 (CA)). It is only when there are aggravating circumstances that apply to the principal

but not the getaway driver, such as assaultive behaviour by the principal, that the getaway driver’s sentence may be lower than that of theprincipal (see R v Price (2000), (ON CA), 144 CCC (3d) 343 at paras 54-56 (Ont CA)). [30] The second and third hypothetical cases are missing one or more of the essential elements of the offence for which theaccused in this case is being sentenced.

The second hypothetical case, as stated by the sentencing judge, would require an “examinationof the element of mens rea” (at para 24) and proof of knowledge or willful blindness as to whether the firearm is prohibited before theoffenders would be subject to the five-year mandatory minimum sentence. The third hypothetical case involves a different sentencingprovision (section 344(1)(

b) of the Code), in which there is no minimum punishment. In R v Brown, (SCC), [1994] 3SCR 749, Iacobucci J stated that a reasonable hypothetical case must be based on the same offence underlying the sentence (see also R vAl-Isawi, 2017 BCCA 163 at para 59).

Simply put, these hypothetical cases do not deal with the same offence and would not attract theimposition of a five-year mandatory minimum sentence. [31] The personal characteristics in the fourth hypothetical case evoke sympathy for the offender, but do not impact on theseriousness of the conduct such that a five-year sentence would shock the conscience of Canadians.

While the offender has somewhatreduced moral culpability, the fact remains that he committed a very serious offence that would warrant a significant jail sentence (Wustat para 61): “the commission of a robbery with a firearm requires a conscious decision that cannot be excused on sympathetic grounds”.

Moreover, the sentencing provision is sufficiently specific: it involves a serious offence that attracts high moral culpability (see Stocker). [32] In my view, the hypothetical cases fail to establish that the five-year mandatory minimum sentence for robbery with aprohibited firearm would be grossly disproportionate to the gravity of the offence. [33] In Nur, McLachlin CJC clarified what the courts said in Goltz and Morrisey. She made it clear that the scenarios reliedupon in a

section 12 analysis must be reasonably foreseeable “based on experience and common sense” (at para 74) and not speculative. While personal characteristics may be considered, they cannot be used “to construct the most innocent and sympathetic case imaginable”(at para 75). The focus of the analysis should be on the kind of conduct that will attract the mandatory minimum sentence, rather than onfar-fetched, fanciful or remote scenarios laden with personal characteristics.

As she pointed out, it may be useful “to start with cases thathave actually arisen . . . and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable” (at para62). [34] In McDonald, Rosenberg JA expressed concerns about imposing a three to four-year sentence in the case of a youngman with a mental illness who committed a robbery at a fast-food outlet with an unloaded BB gun tucked into the waist of his pants.

Infinding the three to four-year sentence to be demonstrably unfit but not grossly disproportionate, he stated, “I am not convinced thathaving regard to the objective gravity of the offence involving the use of a firearm, even an unloaded one, that a sentence approachingfour years shocks the conscience” (at para 72). In that case, the firearm was found to constitute a visual threat but was not otherwiseused. The former

section 344(a) (now section 344(1)(a.1) of the Code) four-year mandatory minimum sentence for robbery with afirearm was not found to contravene

section 12 of the Charter, provided the court could reduce the sentence below the minimum whentaking into account pre-sentence custody. [35] In Wust, the British Columbia Court of Appeal also suggested that it could not foresee a hypothetical case in which afour-year sentence for the offence of robbery with a firearm would be grossly disproportionate, even if the offender was merely a party tothe offence (see para 23). [36] Finally, regard must be had to Parliament’s clear intention to discourage the use of firearms for criminal purposesthrough the imposition of mandatory minimum punishments and to treat robberies committed with firearms more harshly than suchcrimes were treated previously.

In my view, the accused has not demonstrated that the sentencing judge erred when she found that thefive-year mandatory minimum sentence is not grossly disproportionate in situations that may reasonably be expected to arise. [37] To conclude, I am of the view that the accused has not demonstrated that the sentencing judge erred when she foundthat the five-year mandatory minimum jail sentence for robbery with a prohibited firearm in section 344(1)(a)(

i) of the Code does notviolate

section 12 of the Charter. I would, therefore, grant leave to appeal but dismiss the appeal. JA I agree: CJM I agree: JA