R v Blacksmith, 2018 MBCA 81

Citation: R v Blacksmith , 2018 MBCA 81 Date: 20180830 Docket: AR17-30-08890 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) A. C. Bergen ) for the Appellant ) Appellant ) J. L. Ostapiw ) for the Respondent - and - ) ) Appeal heard: jake blacksmith ) June 6, 2018 ) ) Judgment delivered: (Accused) Respondent ) August 30, 2018 lemaistre JA [ 1 ] The Crown seeks leave to appeal and, if granted, appeals the accused’s sentence of two years’ probation for breaking and entering a dwelling-house pursuant to section 348(1) (

d) of the Criminal Code (the Code ). [ 2 ] The Crown asserts that not only was the probationary sentence illegal, it was demonstrably unfit. It submits that the sentencing judge did not appropriately consider the sentencing principles in reaching his decision. While the accused concedes that the sentencing judge erred by not attaching the probation to either a fine, imprisonment or a suspended sentence, he seeks a two-year suspended sentence with probation.

Counsel for the accused asked that any period of incarceration imposed by this Court be stayed. [ 3 ] For the reasons that follow, I would grant leave to appeal, grant the appeal and vary the sentence to 15 months’ incarceration followed by one year of supervised probation. Background Circumstances of the Offence [ 4 ] The accused broke into the home of a licenced firearm owner who was away on business by smashing a window and stole a television, some DVDs and five firearms. Upon returning home, the homeowner found another television and firearm on his back step.

The accused’s blood was located throughout the home, leading to his arrest. Although the accused had no memory of the offence, he thought he might have buried the five unrecovered firearms and made some effort to locate them. Those five firearms have never been recovered. Circumstances of the Accused [ 5 ] At the time he committed the offence, the accused was almost 19 years old, living with his parents in Sioux Valley Dakota Nation, receiving social assistance and pending on criminal charges in youth justice court.

He received a youth sentence of two years’ probation for two counts of sexual interference 17 months prior to being sentenced on this matter. [ 6 ] A pre-sentence report prepared for the sentencing related to the sexual offences and filed with the sentencing judge in this matter provided information about the accused’s background. The accused has a Grade 6 education, but has difficulty reading and writing. He learned to sign his name just before he turned 18 years old and reads at a Grade 1 level.

His parents both work full time to provide for the family and so, throughout his childhood, the accused was frequently left on his own. While he has a close relationship

with his mother, he has not been close with his father. Growing up, the accused was isolated and socially awkward. He was neveremployed and had no leisure activities other than watching television and playing video games. The accused has had problems withalcohol and drugs described as “misuse” rather than addiction. The accused was assessed as a “[h]igh risk to re-offend.” [7] The report also examined the unique personal background and systemic Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) which impacted the accused.

The accused was raised in a stable and secure family environmentand regularly spent time with an extended family network comprised of aunts, an uncle and grandparents. His family is well integratedinto their community and is described as “‘traditional’ in their beliefs and practices.” His parents do not use alcohol and it is not allowedin their home.

Although his maternal grandparents (and likely his paternal grandparents) attended residential school, his motherdescribed her own upbringing as “normal.” The probation officer opined that: It is highly probable, [the accused] and his family have experienced the intergenerational impacts of the Residential School system;however, it is unclear to what extent their experiences have impacted [the accused’s] own connection to the community. [emphasis added] [8] The pre-sentence report was prepared 17 months prior to the sentencing hearing and so the probation officer providedan update as to how the accused had been doing on probation just prior to the sentencing hearing.

By that point, he had started attendingan adult education program, was employed by the Sioux Valley Dakota Nation Band (the Band) in their Public Works department withhis father and had seen a psychiatrist for an assessment. As well, his mother had disclosed to the probation officer that the accused hadwitnessed her being abused.

However, the probation officer concluded, “Overall nothing has changed in [the accused’s] situation sincehe began Probation January 2016” and, she offered the opinion that “custody will do nothing for him” and “likely [he] will be a victim incustody”. [9] As a result of the psychiatric assessment, the accused was prescribed medication “to overcome his anxiety”, but wasnon-compliant.

In a letter filed at the sentencing hearing, the psychiatrist stated, “If he complies with treatment and [stays] away fromalcohol, he has the potential to be productive, able to control his anger, anxiety and impulsiveness.” The Sentencing Hearing [10] At the sentencing hearing, the Crown sought a period of incarceration of two years less a day followed by two years ofsupervised probation. The accused requested a lengthy probation order or, in the alternative, a period of imprisonment in the range of 90days. [11] The sentencing judge’s reasons were relatively brief.

After noting that residential break and enter offences are seriousoffences, the theft of unrecovered firearms was aggravating and there were local community concerns about “guns that are circulatingoutside of the bounds of responsible gun owners”, he stated: I have to take into consideration your age – that you were only 19 [sic] at the time. There are certainly Gladue circumstances and you have personal circumstances. [The probation officer], who knows you well, talked about the impact of jail on you and how it would be a circumstance where youprobably would be at risk and it would not be particularly helpful.

She knows you better than I do, she knows the community, she knowsyour particular vulnerabilities and in the circumstances I put a great deal of weight on that so I have some things to weigh. On the one hand, the Court of Appeal tells us that two years is the starting point and people almost without fail go to jail for breakinginto peoples’ houses.

On the other hand, I look at your personal circumstances that you are a young man, you have just started work, you are trying to work onsome things that were missed when you were growing up and so in the circumstances – and like I said this is a very unusual case – it isunfortunate that a conditional sentence is not available because I think this is the kind of offence for which a conditional sentence is criedout for. In any event I am prepared to order a two-year supervised probation order. There will be strict conditions on the order though.

Issues and Positions of the Parties [12] The Crown advances three grounds of appeal: 1) the sentence was illegal; 2) the sentence did not reflect principlesimportant to the offence of break and enter of a dwelling-house for the purpose of stealing firearms; and 3) the sentence wasdemonstrably unfit. [13] The accused does not dispute that the sentence was illegal. He argues that the mitigating factors in this case are uniqueand warrant the imposition of a suspended sentence along with probation.

Analysis [14] The probation order imposed by the sentencing judge was not available as a sentencing option and this constitutes anerror of law.

Moreover, in my view, the sentence failed to adequately address the principles of deterrence and denunciation, and wastherefore extremely lenient and demonstrably unfit (see R v Lacasse, 2015 SCC 64 at paras 11, 52). [15] While this case does not involve the offence of breaking and entering and stealing a firearm pursuant to section 98(1)(b), this is, in my view, a distinction without a difference: the theft of the firearms is aggravating and warrants a strong message ofdeterrence and denunciation (see R v Burnett, 2017 MBCA 122 at para 15).

As stated in Burnett (at para 14), “The illicit acquisition of afirearm and the harm firearms can cause when they are possessed by persons other than licenced gun owners are significant publicdangers.” [16] Moreover, the prevalence of a particular crime in a community is a relevant factor which increases the importance ofgeneral deterrence to bring it under control (see R v Foianesi, 2011 MBCA 33 at para 13). [17] While the sentencing judge acknowledged the serious nature of the offence and the aggravating factor of the theft of thefirearms, he failed to recognize that, in light of these factors, deterrence and denunciation remain the primary sentencing objectives.

Asstated in R v McMillan (BW), 2016 MBCA 12 (at para 12): “When denunciation and general deterrence are the paramount sentencingobjectives, the focus is more on an offender’s conduct than any circumstances particular to that offender.” [18] The offence of breaking and entering a dwelling-house is a serious offence punishable by a maximum sentence of lifeimprisonment. The accused properly acknowledges that breaking into a dwelling-house generally attracts a sentence in the range of twoyears.

In fact, that has been the case since the late 1970’s (see R v Hickey, 1979 CarswellMan 269 (CA), which was a unanimousdecision rendered by a five-member panel; and see more recently R v Duerksen, 2012 MBCA 41 at para 4; Burnett at para 11; andR v Beardy, 2018 MBCA 52 at para 2).

This range is intended to assist sentencing judges in “their exercise of judicial discretion toimpose an individualized sentence in light of the circumstances and the relevant sentencing principles and objectives” (R v Sass; R vZammit, 2018 MBCA 46 at para 5; see also Burnett at paras 9-10). [19] A wide disparity between the starting point for the offence and the sentence imposed, cannot in itself be determinativeof unfitness (see R v Suter, 2018 SCC 34 at paras 25, 90; Lacasse at para 11; and R v McDonnell, (SCC), [1997] 1 SCR948 at para 43).

However, when sentencing judges feel that a marked departure from the customary sentence is justified, they mustexplain, in a meaningful way, the essential distinguishing features that led them to diverge significantly from the starting point (see R vMaroti, 2010 MBCA 54 at para 8). [20] It is apparent from the sentencing judge’s reasons, when read in the context of the record, that he was primarilyconcerned with the personal circumstances of the accused, including the probation officer’s opinion regarding the impact of incarcerationon the accused.

However, he did not distinguish this case from the well-established starting point of a two-year term of imprisonmentand there is no further explanation, other than the passing mention of the accused’s personal circumstances and Gladue factors, to justifyhis conclusion that the fit sentence for this accused was a non-custodial sentence.

The starting point assumes a mature accused withpreviously good character and no criminal record and is adjusted based on the aggravating and mitigating factors. [21] In light of the errors committed by the sentencing judge, which were material to the sentence, this Court is not bound bythe sentence imposed by the sentencing judge and is free to impose an appropriate sentence. [22] The circumstances of the offence in this case are serious and usually attract a high degree of moral blameworthiness.

While a licenced gun owner from the accused’s community was away on business, the accused broke into his home by smashing awindow and stole five firearms in addition to other items. He clearly had the presence of mind to devise a method of entry into theresidence and steal the firearms. At the time of his arrest over one year later, the accused had no memory of the offence and was unableto recall what became of the firearms other than he thought he might have buried them. However, the firearms have never beenrecovered. [23] The accused was pending on other charges when he committed this offence.

There is no question that the accused’spersonal circumstances are tragic: he has difficulty writing and reads at a Grade 1 level; he is not close with his father, he was isolatedand socially awkward growing up and did not participate in leisure activities; he witnessed his mother being abused; and he misuseddrugs and alcohol. Moreover, these social problems may exist, at least in part, as a result of his grandparents’ experience in theresidential school system. Counsel for the accused suggests that the accused was intoxicated at the time of the offence because he hadno memory of it when he was arrested.

While this was not a finding made by the sentencing judge it is, in my view, a reasonableinference. I also agree with her submission that the accused’s intoxication, the Gladue factors and the mitigating circumstances diminishhis level of moral culpability which would otherwise be high due to the circumstances of the offence. [24] I have read the dissenting opinion of my colleague, Monnin JA.

With respect, I disagree that the community resourcesavailable to the accused and the potential impact of incarceration on him warrant a greater emphasis on the accused’s circumstancesrather than the seriousness of the offence.

[ 25 ] At the time of sentencing, the accused had been on probation in relation to other charges for almost a year and a half, had attended the Brandon Friendship Centre Adult Education program on three occasions, had seen a psychiatrist and was working with his father. However, the probation officer reported that, “Overall nothing [had] changed in [the accused’s] situation”. Moreover, the accused was non-compliant with medication prescribed to assist him with addressing many of his issues.

In light of the accused’s lack of progress while on probation in the community, I am not satisfied that a community-based sentence would adequately serve the principles of sentencing of deterrence and denunciation. [ 26 ] In my view, the accused’s circumstances are sympathetic, impact on his moral culpability and significantly mitigate what would otherwise be a proportionate sentence. However, the circumstances do require a period of incarceration for deterrence and denunciation.

After taking into consideration all of the circumstances, including the mitigating and aggravating factors, the Gladue factors, the relevant sentencing objectives and principles and the sentencing judge’s inclination to show leniency, I am of the view that a fit sentence would be 15 months’ incarceration followed by a two-year period of probation on the same terms and conditions imposed by the sentencing judge, except for the curfew.

Because the accused has already served one year of probation, I would reduce the period of probation to one year. [ 27 ] Since being sentenced, the accused has been charged with new offences involving violence, as well as breaches of his probation order. He is currently in the community on judicial interim release and living with his grandmother.

He continues to be subject to the probation order imposed by the sentencing judge and is still working for the Band, although he is no longer working with his father. [ 28 ] At the hearing of the appeal, Counsel for the accused conceded it would not be appropriate to stay the sentence and that the accused should be incarcerated if the sentence is varied to a term of imprisonment in light of the circumstances. I agree.

Conclusion [ 29 ] I would grant leave to appeal, grant the appeal and vary the accused’s sentence to 15 months’ incarceration followed by a one-year period of probation on the same terms and conditions imposed by the sentencing judge, except for the curfew condition. JA I agree: CJM MOnnin JA (dissenting): [ 30 ] I agree that the sentence imposed was illegal. I also agree that the sentence imposed was lenient.

I am however unable to conclude, as my colleagues did, that it was demonstrably unfit. [ 31 ] Notwithstanding the fact that this Court has in the past set out a sentencing range for an offence such as the one to which the accused has pleaded guilty, there remains instances when a sentence outside that range will still be a fit sentence. That such a situation can exist was considered in this Court’s decision in R v Burnett , 2017 MBCA 122 , referred to by my colleague in her discussion of the need for deterrence and denunciation in this case.

In Burnett , the Court also stated (at paras 22, 24): Leaving aside this theoretical confusion, the practical effect of this sentencing principle is that it acts as a safety valve for the justice system in the “rare case” where the circumstances are “above and beyond the norm” ( R v Voong , 2015 BCCA 285 at para 59 ).

While Lacasse [ R v Lacasse , 2015 SCC 64 ] was not a case about the exceptional-circumstances principle, the concept is easily reconcilable with the observation of Wagner J that “it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit” (at para 58).

The role played by the principle of exceptional circumstances is separate and apart from a sentencing judge’s general discretion to depart downward or upward from a starting point or sentencing range to impose an individualized sentence based on the circumstances of the particular case. As LeBel J noted in R v Nasogaluak , 2010 SCC 6 , “(

a) judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit” (at para 44). See also Lacasse at paras 57-61 .

[ 32 ] This is this accused’s first conviction as an adult. He has never been incarcerated. Based on his physical appearance and what is contained in the pre-sentence report, in my view, the accused presents in what I would define as a child in an adult’s body. He has a Grade 6 education, is clearly unsophisticated in the ways of the world and appears to be living in his own world.

In my considered opinion, and I suspect that of the sentencing judge, imposing any period of incarceration will place the accused in a much more precarious position than would be the usual inmate. [ 33 ] I understand and accept why the sentencing judge wanted to impose a sentence that kept the accused within his community in the hope that working with specialized resources might be sufficient to rehabilitate him and change his offending ways.

This could have been done by imposing a suspended sentence along with a period of probation and I strongly suspect that is what the sentencing judge intended, but omitted to impose. [ 34 ] Notwithstanding the seriousness of the offence, this still remains a first offence for a young adult who in reality is still childlike.

I am of the view that, in this case, the accused’s background and limited cognitive and emotional skills should impact more on the sentence to be imposed than the seriousness of the offence itself. [ 35 ] Since the time of sentencing, community resources have been marshalled in an attempt to deal with the many problems that this accused faces.

This accused, and consequently the community at large, will be better served if his numerous problems can be addressed outside of a penal institution that in all probability can do very little to address his many issues. [ 36 ] Accordingly, I would suspend the passing of sentence for two years and during that time, place the accused on supervised probation on the same terms and conditions as imposed by the sentencing judge. JA