R. v. Simms, 2020 NSSC 239

SUPREME COURT OF Nova Scotia Citation: R. v. Simms , 2020 NSSC 239 Date: 20200923 Docket: Hfx No. 476543 Registry: Halifax Between: Her Majesty the Queen v. Matthew Bruce Simms and Robert John Moore Judge: The Honourable Justice Joshua M.

Arnold Heard: September 11, 2020, in Halifax, Nova Scotia Date of Sentencing: September 23, 2020 Counsel: Richard Hartlen, for the Crown Stanley MacDonald, for the Defence Simms Mark Bailey, for the Defence Moore By the Court: Overview [ 1 ] This is a sentencing decision respecting Matthew Simms and Robert Moore, who have each entered guilty pleas to home invasion robbery and related offences. In plea negotiations, the Crown agreed to cap their sentencing recommendation at five to six years in prison. Mr. Simms seeks a three-year sentence and Mr.

Moore asks for a custodial sentence of “two years plus a day.” Neither accused has a previous criminal history resembling these offences, and both accused apparently lived pro-social lives before and after the home invasion. Facts [ 2 ] The facts set out in the Crown’s brief and the brief submitted on behalf of Mr. Simms differ slightly but essentially reflect the same events. As stated in the Crown brief: Kyle Munroe owns a home located at 55 Old Fairbanks Road in Porter’s Lake, Nova Scotia. This home is in a rural-residential neighborhood, but is a single-family dwelling consisting of 2 levels.

On July 11, 2017 Munroe was visited by his friend Brad Evans. The two were watching the Major League All-Star Game. At approximately 11 pm Brad Evans heard a car pull into the driveway. When Evans went to the door, there were two masked man there. Both were armed with shotguns. The intruders entered the home and ordered him to the ground. They were each dressed in manner to conceal their identities and had portions of their clothing taped up. The two intruders were Matthew Simms and Robert Moore. Kyle Munroe had been in his bedroom taking a call from his girlfriend when he heard someone at the door.

He exited his bedroom and saw that Evans was on the floor, his hands tied behind his back, with a gun pointed at him. Munroe was tied up and ordered onto the ground. Demands were made for money. Both intruders were saying that they knew there was money present. The intruders took their car-keys and cellphones. After about 5 minutes a third intruder came in the home. He started giving further directions and appeared to both Evans and Munroe to be the ringleader. The intruders ransacked parts of the house, both upstairs and down.

Eventually, Evans observed that one of the men had laid his firearm down on the kitchen counter. He also observed that his hands were not tightly secured. He was able to get his hands free and secure the firearm. A struggle ensued, during which Munroe was choked out (unconscious) by one of the men. He was also punched in the face causing his nose to bleed freely. Evans was also punched several

times during his struggle with the men. Evans was able to chase the men out of the house. Once outside he fired several shots from the shotgun he had taken from the intruders. Munroe was subsequently able to free himself and secured a .22 calibre rifle. He discharged approximately 19 shots at the intruders and their vehicle. The intruders had arrived in a Silverado truck. They attempted to flee by backing out of the driveway. In the process they became stuck in a ditch on the right side of the driveway. They tried to get themselves free for approximately 5 minutes.

Despite their efforts to do so they were unable to get the vehicle unstuck. They fled on foot. Approximately 4 hours later Matthew Simms was located by police at a neighbor’s home. He had asked the homeowners if he could use their phone to call a cab. They called police. At the time of encountering the police Simms had no identification on him. He originally gave the police the wrong name, address and cell-phone number. A bandana with the likeness of a face was seized during the arrest. It was later determined to have his blood on it. The police quickly discovered that Simms was bleeding from 2 wound areas.

An apparent shotgun blast to his hip and a single-entry wound in his left shoulder, subsequently determined to have been caused by a .22 caliber bullet. The Silverado was searched by police. A loaded shotgun, with a shell in the chamber, was in the backseat under some clothing. A second shotgun had been seized from Brad Evans upon police arrival at the scene. Both shotguns were subsequently tested and functioned as designed. The Silverado was determined to be registered to Robert Moore. Amongst the personal effects found during a search of the truck was a knife.

It was subsequently tested for DNA – it contained that of Kyle Munroe. A black and white bandana was found during a K-9 search of the wooded area surrounding the home. It was tested and was found to contain the DNA of Robert Moore. His DNA was also discovered on samples taken from a grey hoodie located in the same area. A knit toque was located during the police search of the living room of the home. It contained Robert Moore’s DNA. 14 potted marihuana plants were in the bed of the Silverado. They had been taken from a grow-room Munroe had operating in his basement. The third intruder has never been charged.

Neither Moore nor Simms have identified this person to the Police. [ 3 ] Photographs of the crime-scene were tendered at the sentencing hearing. They illustrate many of the facts detailed by the Crown. Charges [ 4 ] Mr. Moore and Mr. Simms each pleaded guilty to the following three offences in relation to the events of July 11, 2017: • Break and enter a dwelling house situate as 55 Old Fairbanks Road, Porter’s Lake, Nova Scotia, and did commit therein the offence of Robbery, contrary to s.348(1) (

b) of the Criminal Code . • AND FURTHER that they at the same time and place aforesaid, did use a firearm, to wit., a shotgun, while committing the indictable offence of forceable confinement, contrary to Section 85(1) (

a) of the Criminal Code . • AND FURTHER that they at the same time and place aforesaid, with intent to commit an indictable offence, did have their face masked, contrary to Section 351(2) of the Criminal Code . [ 5 ] Section 348(1) (

b) of the Criminal Code makes it an offence to break and enter a place and commit an indictable offence therein. Section 348(1) (

d) provides that “if the offence is committed in relation to a dwelling-house” the accused “is guilty ... of an indictable offence and liable to imprisonment for life...” [ 6 ]

Section 85 makes it an offence to use a firearm, “whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm”, while committing an indictable offence (other than those specifically excluded)(s. 85(1)(a)), while attempting to commit an indictable offence (s. 85(1)(b)), or “during flight after committing or attempting to commit an indictable offence” (s. 85(1)(c)). Section 85(3) states:

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable (

a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and (

b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).

[ 7 ] Section 351(2)(

a) states that “[e]very person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of (

a) an indictable offence and liable to imprisonment for a term of not more than 10 years...” Victim Impact Statements [ 8 ] According to the Crown, although both victims had the opportunity to provide victim impact statements, none were submitted. Presentence Reports [ 9 ] Presentence reports were prepared in relation to both accused.

Robert Moore [ 10 ] The presentence report in relation Robert Moore describes a fairly stable upbringing, family support, and indicates that he has was a decent student, learned a trade as an electrician, has worked steadily for his adult life, and has some goals to further his education and change his employment path. [ 11 ] Under the heading “Offender Profile” the presentence report indicates that Mr. Moore described mental health issues for which he was receiving relevant treatment and medication.

The report further states: The Subject was interviewed for the purpose of the Pre-Sentence Report at the Dartmouth Probation Office. The Subject reported on time for the interview and appeared to take the process seriously. He presented as polite and respectful throughout the interview process. Mr. Moore acknowledged responsibility for his actions which have brought him before the Court. The Subject stated, “Absolutely, yes, I admitted guilty to all of it I got roped into something I usually would not be involved in. One mistake can have so much impact.

I really want a second chance to prove that I do not belong in the system. This all has to do with people I was spending time with and the bad choices I made. I don’t associate with these people anymore.” [ 12 ] Under the heading “Assessment of Community Alternatives/Resources” the presentence report states: Appearing before the Court is 25-year-old Robert, who pled guilty to the indexed offences. The Subject has taken responsibility for his actions.

If the Court deems a community-based disposition to be a suitable part of sentencing options, the Subject would appear to benefit from the condition to report a Probation office as directed. In addition, the Subject would appear to benefit from participation in treatment and programming, specifically treatment focused on mental health. As always, sentencing options are left to the discretion of the Court and Correctional Services can provide any necessary referrals. [ 13 ] The report also details one conviction in 2017 for impaired driving for which he received a fine and a driving prohibition.

Matthew Simms [ 14 ] The presentence report in relation to Matthew Simms describes a fairly stable upbringing, family support, and indicates that he has was a decent student, started to learn a trade as an electrician, had to leave school due to financial issues, and has worked steadily for his adult life. [ 15 ] In his brief, counsel provided the following medical information in relation to Mr. Simms that indicates: 46. As previously mentioned, Mr. Simms was very seriously injured as he retreated from Mr. Munroe’s house.

Attached at Tab 1 is copy of a two page Emergency/Trauma Report from the Nova Scotia Health Authority dated July 12, 2017. That report describes the injuries sustained by Matthew Simms at the time of the incident. In that report, the following appears: “On his right hip, there was what appeared to be a shot gun injury approximately ten centimeters in diameter with what appeared to be pellets embedded in the wound.” “The neck CT showed a bullet fragment just adjacent to the C7 lamina.” 48. It is important to note that these are not merely transient injuries. The .22 caliber bullet fragment remains in Mr.

Simms neck, because it is too dangerous to remove it. It is too close to his spinal cord. The birdshot has not been removed, because it is so extensive. However, Mr. Simms has been advised that he will almost certainly have to undergo a hip replacement operation at some point in the future. [ 16 ] Under the heading “Offender Profile” the presentence report states: The subject was interviewed for the purpose of the Pre-Sentence report at the Dartmouth Probation Office. The subject reported on time for the interview and appeared to take the process seriously.

He presented as polite and respectful and was cooperative throughout the interview process. Mr. Simms acknowledged responsibility for his actions which have brought him before the Court. The subject stated, “Yes, I accept my involvement in the offence. My intentions were not what played out. I was helping a friend and yes, I was aware of the weapons at the scene. It was a really big mistake.”

[ 17 ] Under the heading “Assessment of Community Alternatives/Resources” the presentence report states: Appearing before the Court is 28-year-old Matthew Simms who was found guilty to the indexed offences. The subject has taken responsibility for his actions. If the Court deems a community-based disposition to be a suitable part of sentencing options, the subject would appear to benefit from the condition to report to a probation officer as directed. In addition, the subject would appear to benefit from participation in treatment and programming, specifically family counselling.

As always, sentencing options are left to the discretion of the Court and Correctional Services can provide any necessary referrals. [ 18 ] The report also details one conviction in 2016 for refusing the breathalyzer for which Mr. Simms received a fine and a driving prohibition. He also has a conviction for a breach of his release conditions in relation to the instant case. [ 19 ] Mr. Simms’s counsel provided the court with information showing financial loss incurred by Mr. Simms as a result of his participation in these offences. As noted, he also provided medical information related to Mr.

Simms having been shot twice during the home invasion. Character References Robert Moore [ 20 ] Mr. Moore filed eight character reference letters written by friends, family members, and his partner, urging the court to impose a lenient sentence. The letters variously describe Mr. Moore as kind, loving, responsible, devoted, loyal and hardworking. He has had a child and two step-children, and has reportedly become family-oriented since the offence date. The people who know him best say he is, and always has been, a wonderful person. Matthew Simms [ 21 ] Mr.

Simms filed eighteen character reference letters written by friends, family, and his partner, also urging the court to impose a lenient sentence. These letters describe him as a well-intentioned, good-hearted, hard working, loyal, bright, and responsible person. He is an animal lover. [ 22 ] The character references all suggest that what Mr. Moore and Mr. Simms chose to do on July 11, 2017, was out of character for both of them.

However, I have not been provided with any explanation as to how these two men jumped from being of previously good character to committing the violent, serious, and dangerous crime of home invasion while masked and while carrying loaded shotguns, overpowering the occupants, tying them up, punching them, and choking one to unconsciousness. Purpose and Principles of Sentencing [ 23 ]

Section 718 of the Criminal Code describes the purpose of sentencing: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 24 ]

Section 718.1 of the Criminal Code states that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Section 718.2 describes the principles governing the determination of a fit sentence: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including

their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Aggravating Factors [ 25 ]

Section 348.1 of the Criminal Code states that if a person is convicted of an offence under s. 348 “in relation to a dwelling- house” the sentencing court “shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [ 26 ] Therefore, there are several aggravating factors in this case to be considered in combination with s. 348.1 , specifically that the offenders carried loaded firearms; the home was occupied; and the victims were bound and beaten.

Mitigating Factors [ 27 ] Mitigating factors in this case include the following: • Both accused entered guilty pleas; • Neither accused has a related criminal record; • Both accused were productive members of society before and after the offences were committed; • Both accused have been on strict release conditions since July 2017 (although Mr. Simms did have a breach); • Both accused have suffered significant financial, personal and employment setbacks as a result of being charged with committing these offences; • Both accused have new and stable relationships since their involvement in this crime; • Mr.

Simms was shot twice during the crime and will have future medical problems as a result. General Sentence Principles [ 28 ] The Supreme Court of Canada has emphasised the need for sentencing judges to be cognizant of an overreliance on incarceration in Canada, as well as the need to individualize sentencing and avoid a cookie-cutter approach. [ 29 ] In R v. Proulx , 2000 SCC 5 , McLachlin C.J. delivered a unanimous judgement of the court endorsing conditional sentences and emphasizing the appropriate nature of community based sentences even for serious crimes.

Of significance to this case, the Supreme Court recognized problems with over-reliance on incarceration in sentencing: 16 Bill C-41 is in large part a response to the problem of overincarceration in Canada. It was noted in Gladue , at para. 52, that Canada's incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrialized democracies.

In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly, frequently unduly harsh and "ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader public goals"... Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society...

In Gladue , at para. 57, Cory and Iacobucci JJ. held: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming

rate. The 1996 sentencing reforms embodied in

Part XXIII, and s. 718.2(

e) in particular, must be understood as a reaction to the overuseof prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [Emphasis added.] 17 Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through theenactment of s. 718.2(

d) and (e).

Section 718.2(

d) provides that "an offender should not be deprived of liberty, if less restrictivesanctions may be appropriate in the circumstances", while s. 718.2(

e) provides that "all available sanctions other than imprisonment thatare reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginaloffenders".

Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c)qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that cautionbe exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine,so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1, whichintroduces the conditional sentence.

In Gladue, at para. 40, the Court held that "[t]he creation of the conditional sentence suggests, on itsface, a desire to lessen the use of incarceration". 18 Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crimegenerally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy theadverse effects of crime in a manner that addresses the needs of all parties involved.

This is accomplished, in part, through therehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in theoffender and acknowledgment of the harm done to victims and to the community. [30] Since Proulx, Parliament has revoked the ability of individuals charged with break and enter to achieve a conditional sentence. While Parliament has not imposed a mandatory minimum sentence for home invasion robberies, it has imposed a mandatory minimumsentence for committing an indictable offence while using a firearm, as occurred in this case. [31] In R. v.

Nasogaluak, 2010 SCC 6, Lebel J. delivered the unanimous decision of the court explaining how judges should employsentencing ranges while still individualizing the sentencing process. He stated: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to crafta sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case... No one sentencing objective trumps the others and it falls to the sentencingjudge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance ofany mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

Thejudge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures thateach case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [32] The issue of sentencing ranges was also considered in R. v.

Lacasse, 2015 SCC 64, where Wagner J. (as he then was), for themajority, stated: [56] The principle of parity of sentences has sometimes resulted in the adoption of a system of sentencing ranges and categories. Thisconcern for parity in sentencing did not originate with the codification of the principle in 1996. As early as the 19th century, “tariffs”were being used by the English courts: D. A. Thomas, Principles of Sentencing (2nd ed. 1979), at p. 29.

The tariffs synthesized, as itwere, the relevant principles applicable to each type of crime in order to standardize sentencing for it: While in certain contexts the Court articulates a principle, or series of principles, in a systematic manner, it is frequently necessary toidentify the operative principles from the examination of a considerable number of cases, none of which specifically identifies therelevant criteria, but which, when viewed collectively, clearly conform substantially to a pattern which can be described.

This isparticularly true of what is conventionally known as “the tariff”, the principles governing the lengths of sentences of imprisonment.(Thomas, at p. 5) [57] Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization,which the ranges allow: Thomas, at p. 8. On the other hand, the principle underlying the two approaches is the same: ensuring thatoffenders who have committed similar crimes in similar circumstances are given similar sentences.

The same is true of the starting-pointapproach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R. v. McDonnell, (SCC),[1997] 1 S.C.R. 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains thesame. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all theprinciples and objectives of sentencing.

Sentencing ranges 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 straitjackets, but should instead be seen as historical portraits for the use ofsentencing judges, who must still exercise their discretion in each case: Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to pastdecisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise ofdiscretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)

[58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44) Range of Sentence Break and Enter [33] In R. v. Zong (1986), (NS CA), 72 N.S.R. (2d) 432, [1986] N.S.J. 207 (S.C.A.D.), the court set a benchmarkof three years in custody for the crime of break and enter, “from which a trial judge should move as the circumstances in the judgementof the trial judge warrant” (para. 7).

While a benchmark was set, the ability for a sentencing judge to exercise discretion was recognized. [34] The Court of Appeal revisited the benchmark in R. v. Bursey (1991), (NS CA), 104 N.S.R. (2d) 94, 1991CarswellNS 145 (S.C.A.D.). In upholding a suspended sentence for a break and enter, the court stated: 13 We must not only keep the foregoing in mind in considering the principles laid down by Grady, but we must also remember thatin considering the fitness of the sentence, we are not to consider it improper merely because we feel we might have imposed a differentsentence.

Apart from misdirection or nondirection on the principles of sentencing,. a sentence should only be varied if we are satisfiedthat it is clearly excessive or inadequate in relation to the offence proven or the record of the accused: R. v. Cormier (1974), (NS CA), 9 N.S.R. (2d) 687. 14 We accept that in cases of break and enter, three years imprisonment is indeed a benchmark but all cases must be dealt with on anindividual basis.

There is no similarity at all between the facts before us and those in Zonq. 15 Applying the relevant principles, we see that. an experienced trial judge has reviewed in his decision the relevant circumstancesof the offender and the offence. He has concluded that in these somewhat unusual circumstances, the respondent should be given onemore chance. We are not able to say that Judge Kimball imposed a clearly inadequate sentence in relation to the offender and the offence.

Properly administered, a suspended sentence can have substantial consequences. [35] The Court of Appeal referred to “somewhat unusual circumstances” as a ground to allow the offender “one more chance”. Theydid not require “exceptional circumstances”. Home Invasions [36] In R. v. P.J.H., 2000 NSCA 7, Glube C.J.N.S. considered the range of sentence for a home invasion. She commented, for thecourt: [70] The decision in Matwiy provides a thorough review of cases dealing with home invasions in Alberta, including several where 15year sentences were upheld on appeal.

The case lists the basic, essential features of a “home invasion” robbery, namely, ... A mature individual with no prior record, (

a) plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to stealmoney or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants orany of them; (

b) arms himself or herself with an offensive weapon; (

c) enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or byotherwise forcing his or her way into the dwelling; (

d) confines the occupant or occupants of the dwelling, even for short periods of time; (

e) while armed with an offensive weapon, threatens the occupants with death or bodily harm; and (

f) steals or attempts to steal money or other valuable property. The starting-point for sentences for a home invasion robbery as we have defined it, should be eight years. (Paras. 30 and 31.) [37] In R. v. Chudley, 2016 BCCA 90, the court discussed the appropriate range of sentence for a home invasion and stated:

[22] There is no single offence of “home invasion”. Instead, the term is used as a shorthand expression describing a combination of offences involving breaking and entering a dwelling with the intent to commit a robbery, with knowledge or recklessness as to whether the dwelling is occupied. They also often involve the confinement, terrorizing or assault of the occupants...

This Court has held that caution is required in suggesting a general range of sentences for home invasions because the term lacks precision and the combinations of crimes changed in each individual case will vary... [23] That being said, s. 348.1 of the Criminal Code deems a home invasion to be an aggravating circumstance for certain offence in relation to a dwelling... [24] Further, this Court has recognized several sentencing principles that are normally engaged in home invasion type cases. First, in R. v.

Vickers , 2007 BCCA 554 , the Court held that deterrence and denunciation are the primary factors in sentencing for violent crimes, especially when these crimes violate the safety and security of a person’s home... As Madam Justice Saunders observed in R. v. Meigs , 2007 BCCA 394 at para. 25 : “it is a grave offence to enter another person’s home without permission, and graver to enter the home and violate the occupant.

The courts must and do impose stern sanctions for such crimes” [25] Second, with respect to rehabilitation, this Court in Vickers stated that while it cannot be overlooked, it is of secondary importance.

This is particularly true when there is no indication that the offender is a good candidate for rehabilitation or when he or she has demonstrated a history of violence... [26] Third, the “step principle” - the idea that sentences should only be increased in moderate steps to avoid an adverse impact on the offender’s chances of rehabilitation - is generally not helpful when the dominant sentencing factor is protection of the public...

Also, the “step principle” generally only applies when rehabilitation is a significant sentencing consideration.. [27] Fourth, higher sentences are appropriate when serious injuries are inflicted... In A.J.C. at para. 42, then Chief Justice Finch stated that a 14 or 15 year sentence may be appropriate in “the most aggravated circumstances where a ‘home invasion’ involves not only a break and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achieve these objectives, but also the infliction of serious injuries, sexual assault or death.” [ 38 ] In R. v.

Best, 2012 NSCA 34 , the court considered the appeal of a 90-day intermittent sentence for break and enter and aggravated assault, followed by two years’ probation. The court summarized the facts as follows: 2 In late June of 2009, Ms. Rose Geddes hosted a family reunion at her home in Eureka, Pictou County. It started during the day and went into the evening. There were many guests and an abundance of liquor, especially as the evening approached and the children had gone. The respondent Clarence Arthur Best was an invited guest. A neighbour, Mr. Robert Robson, was not. 3 It seems that Mr. Robson and Ms.

Geddes were friendly neighbours (before Ms. Geddes' husband died) but by late June 2009, their relationship was strained. In any event, that day Mr. Robson was drinking alone in his home and heard the Geddes party going on. He decided to make his way over, uninvited. He was not there long before he was sent on this way with a "sucker punch", at the hands of another invited guest. 4 The party continued without Mr. Robson, who had gone home to bed. Then, for reasons that remain unclear, Mr. Best and another guest, Mr. Michael Wright, went over to Mr. Robson's home. They walked in uninvited and attacked Mr.

Robson who was still in bed. Mr. Best knew Mr. Robson, although Mr. Wright apparently did not. While Mr. Best swung at Mr. Robson, he landed no blows. However, Mr. Wright certainly did as they fought throughout the house. In the end, Mr. Robson suffered serious injuries including a cervical fracture and injuries to his jaw requiring it to be wired shut. Both intruders were charged with break and enter, and aggravated assault. Judge Robert A. Stroud of the Nova Scotia Provincial Court, in a separate indictment, found Mr.

Best guilty and this decision has not been appealed. [ 39 ] In discussing whether the sentence was appropriate, the Chief Justice stated: 12 The second ground attacks the appropriateness of the sentence. This involves an exercise of the judge's discretion to which we would normally defer, interfering only if we found the sentence to be demonstrably unfit... 13 In both his oral and subsequent signed decision, the judge downplayed the need to emphasize denunciation and deterrence.

For example, in his oral decision he said: For the reasons stated, I do not believe that this is a case where denunciation and deterrence are particularly pressing. [ 40 ] While dealing with a very different factual matrix than found in the instant case, MacDonald C.J. emphasized the paramountcy of general and specific deterrence, denunciation, and protection of the public in crafting a sentence for a home invasion. In doing so, he stated : 25 Now I realize that the facts in our case are not nearly as gruesome as those in Harris and Best .

Furthermore, no case is ever the same and it would be dangerous to generalize. However, while the specifics of each case must be assessed, serious jail time for this type of offence is generally required. For example, in Wright, supra , the Ontario Court of Appeal explained: 24 In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender.

Whether a case falls within the existing guidelines or range B or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks B will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in A.J.C . (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority,

although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered.Certainly, a stiff penitentiary sentence is generally called for. 26 In this light, it becomes clear that the 90-day intermittent sentence for Mr. Best's offence was demonstrably unfit. [41] Chief Justice MacDonald held that the appropriate range of sentence for Mr. Best was three years in prison: 33 These cases depict a range of 3 to 11 years' imprisonment. Of course, all are fact specific. Here the following considerations wouldlead me to the three-year mark: --Mr.

Best's positive pre-sentence report; --his cooperation with the authorities to date, including turning himself in when he heard he was being investigated; --his strong family support; --the fact that he has no criminal record to speak of; --his post-sentence report confirming his apparent abstinence from both drugs and alcohol; --the fact that he is awaiting further counselling. [42] Although the 90-day sentence was inadequate, the court also concluded that sending Mr. Best back to prison would not servethe interests of justice: 34 However that does not end the matter.

Instead, in my view, this is one of those rare cases where, despite the initial inadequatesentence, it is no longer in the interests of justice to re-incarcerate Mr. Best. I say this because he has completed his term of incarcerationand is well into his period of probation. Furthermore, by all accounts he is doing well. In these exceptional circumstances, I amconvinced that sending him back to jail would not serve the interests of justice. [43] More recently, in R. v.

Tamoikin, 2020 NSCA 43, in upholding an eight-year sentence for a young adult with a significant prioryouth record who committed a violent home invasion that left the victim with serious physical injuries, Van den Eyden J.A. said therewas “ample authority provided to the judge to support the range” (para. 74). [44] In R. v. Fraser (1997), 1997 NSCA 210 , 158 N.S.R. (2d) 163, 1997 CarswellNS 7 (C.A.), Pugsley J.A. held that a six-year sentence was appropriate for a home invasion by a 19-year-old offender.

He said: 27 I consider that house invasion robbery of this type should attract a sentence greater than that imposed for armed bank robbery. 28 This was a premeditated, planned attack on a vulnerable victim conducted in an atmosphere of violence and intimidation. In atown the size of Springhill it would be common knowledge that Mrs. Brown lived alone.

The wearing of masks, and the time of day ofthe invasion, leads to the reasonable inference that Fraser and his accomplice expected her to be at home to assist them in their search formoney or valuables. 29 It is as well appropriate to consider the profound effect a robbery of this kind will have on the victim. One's home, particularlyfor the elderly, is a place of security. The ransacking of her house, including her bedroom, by two violent strangers, is an interferencewith her person akin to physical assault. 30 I do not view the absence of more aggressive physical assault to be a mitigating factor.

If it had occurred, it would be asubstantially aggravating factor. 31 The targeting of elderly people in rural areas of this Province by criminals seeking money for drugs, or other vices is,unfortunately, an increasingly common phenomenon. Like-minded individuals must understand that if they are involved in such anoffence they will be dealt with severely. 32 Mrs. Brown was forced to stand in her kitchen facing a masked stranger brandishing a 10-inch knife for close to half an hourwhile his accomplice plundered her house trashing her personal items in search for valuables.

Such a traumatic event could irrevocablydestroy the sense of security she associated with her home. 33 I agree with the following comments of the Alberta Court of Appeal in R. v. Matwiy (1996), 1996 ABCA 63 , 105C.C.C. (3d) 251, at p. 263: We are of the view that the home invasion robbery merits a higher starting-point sentence than the armed robbery of a bank orcommercial institution.

While offences of violence are abhorrent wherever they occur, offences which strike at the right of members ofthe public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness.Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with littlehope that help will arrive.

Such offences, whether they arise in injuries or not, are almost always terrifying, traumatic experiences for theoccupants and the residents, often leaving them with a total loss of any sense of security. 34 As I have indicated, this Court has placed a bench mark of six to ten years for robberies of financial institutions and privatedwellings. While I consider an invasion of a private dwelling of this type should attract a sentence greater than that for robbery of afinancial institution, Mr.

Fraser's plea of guilty, his remorse, and the other circumstances detailed in the pre-sentence report, are factorsto be considered.

[45] In R. v. Foster (1997), 1997 NSCA 167 , 161 N.S.R. (2d) 371, 1997 CarswellNS 420 (C.A.), Pugsley J.A. for the courtreiterated the need for deterrence and denunciation in a home invasion sentencing and stated: 38 Following the two-step analysis suggested by Justice McLachlin in M. (T.E.) ("the sentence must be individualized to theparticular crime and the particular offender before the Court" - p. 464), it is now necessary to examine the facts peculiar to the presentcase, and the two respondents: - They did not break into a private residence; however, they concealed themselves in the yard, and pounced on Mr.

Wells as soonas he ventured outside his back door. It is a reasonable inference in view of the time of night, the positioning of the look out, as well asthe use of masks, that both respondents intended to break into Mr. Wells' home. These offences are, in my view, similar to the homeinvasion cases, and the fact that no forceful entry was made into the house should be given minimum weight; - There was a premeditated decision, at least on the part of Gour, not only to rob, but to specifically harm, a vulnerable, elderly manat his residence. The beating administered by Mr.

Gour went on for a lengthy time, with no opportunity given to Mr. Wells to escape theattack by handing over his wallet. Mr. Foster made no attempt to intervene; - Mr. Wells' calls for help were not only ignored, the attack escalated. His attempts at resistance were met with additional, andmore severe, blows to the head; - After he was beaten into a state of "apparent" unconsciousness, he was robbed and left in the snow, on a cold night in December,unable to assist himself; - His injuries were entirely predictable, in view of the ferocity, and frequency, of the blows directed to his head.

One year after theincident, Crown counsel advised Justice Boudreau at the sentencing hearing: . . .he's been taking continuing medical treatment.

It was . . . two weeks . . . before the swelling went down . . . there may be some nervedamage and he continues to suffer pain and discomfort as a result of this attack .... - The age of the respondents (both were 18 at the time the offence was committed) and lack of any previous criminal record (atleast as far as Gour is concerned) are mitigating factors, but should not materially lessen the length of sentence for this kind of offencewhere the primary object is the protection of the community (R. v.

Helpard (1995), (NS CA), 145 N.S.R. (2d) 204). 39 This crime, by any measure, was a serious one, and the remarks of MacKeigan, C.J. in R. v. Hingley (1977), (NS CA), 19 N.S.R. (2d) 541, at 545, are apposite: The principle of going lightly with first offenders of tender years to facilitate rehabilitation has here little relevancy.

Such serious crimesrequire substantial emphasis on deterrence even if rehabilitation possibilities are thus not improved but reduced. 40 Justice Sopinka reminds us that a sentence should only be overturned if there is an error of principle, failure to consider a relevantfactor, overemphasis of the appropriate factors, or if the sentence is demonstrably unfit (M. (T.E.) at 448). 41 The disparity between the starting point referred to in Fraser, and the sentence imposed by Justice Boudreau, in light of thefactors peculiar to the present case and the two offenders, is sufficiently wide to convince me that the sentence of 28 months isdemonstrably unfit In P.J.H., Glube C.J.N.S. held that Fraser did not “settle a range for home invasion robberies of 6 to 10 years.

One must look at theindividual case and the mitigating and aggravating factors and determine what the appropriate sentence should be” (para. 62). Inaffirming the sentence, she further remarked that it was “appropriate for a sentencing Judge to denounce unlawful conduct, to citedeterrence of the offender and others as the prime factors, as well as the necessity of separating P.J.H. from society. It is also quiteappropriate for the sentencing Judge to recognize the circumstances of the community in which the offence occurred and in which hepresides” (para. 80).

She further noted that home invasion offences, “require denunciation by society, deterrence of the accused andothers from committing this type of offence, and protection of the public as the primary considerations of sentencing those who choose toinvade the sanctity of the home of another and do violence through intimidation, terrorism or actual assault” (para. 81). Robbery [46] In R v. Bratzer, 2001 NSCA 166, a young adult accused was sentenced for three counts of robbery, committed while he wasarmed and masked.

The sentencing judge imposed a conditional sentence of two years less a day for each offence, to be servedconcurrently. On the Crown appeal, Bateman J.A., for the court, noted that a benchmark for a single robbery was in the two-to-threeyear range. In considering the need for individualized sentencing, however, the court stated: 13 The conditional sentencing provisions endorsed by Parliament have impacted significantly upon both the process of formulating asentence and the "currency" of existing case law. This effect was recognized by this court, most recently in R. v.

Longaphy (2000), 2000NSCA 136 , 189 N.S.R. (2d) 102: [2000] N.S.J. No. 376 (Quicklaw) (N.S.C.A.) (per Oland J.A.): ... Roscoe J.A. commented in R. v. S.C. (1999), 1999 NSCA 82 , 175 N.S.R. (2d) 158; 534 A.P.R. 158, at [paragraph] 10,sentencing cases which predate those provisions are subject to and limited by the legislative directions in s. 718.2(

d) and (

e) that anoffender not be deprived of liberty if less restrictive sanctions may be appropriate and that all available sanctions that are reasonable inthe circumstances should be considered for all offenders. In my opinion, the earlier cases can no longer be regarded as establishing rigidstarting points or ranges against which sentences decided after these legislative changes came into effect must be measured.

They are tobe read with great care and awareness of the sentencing principles which now apply, particularly those pertaining to incarceration as alast resort and the focus upon individualized sentencing. [47] While the sentence was “a lenient one and at the low end of the range for robbery”, Justice Bateman reiterated that “simply

because a sentence is at the bottom of the range, it is not demonstrably unfit” (para. 37, citing R. v. McDonnell, (SCC),[1997] 1 S.C.R. 948, at para. 43). The sentencing judge had heard significant evidence about Mr. Bratzer, his challenges, his supportnetwork and the strides he had made since the crimes. Justice Bateman noted: 38 The Crown quite properly emphasizes the aggravating circumstances of these offences: this was not a single robbery, but a series;Mr. Brazter was masked and armed; the crimes were planned; Mr.

Bratzer appeared to be the leader; he targeted businesses incommunities in which he was not known; in his post arrest interview he said that he enjoyed the "rush' of committing the robberies andtrying to outwit the police; and that he expressed no remorse. The Crown says the judge did not sufficiently emphasize these ingredients.In his sentencing remarks, however, the judge referred in some detail to these aggravating factors. 39 Clearly central to this disposition were Mr. Bratzer's youth and, quite unique to this case, the very considerable evidence led as tohis substantial progress while on interim release.

In this regard the judge identified several relevant factors: Mr.

Bratzer was not plaguedby alcohol or drug addiction which so often defeats an offender's attempt at reformation; he was a person with identified potential whohad attracted the confidence of his superiors; he had a longstanding and attainable career objective; he had a good relationship with aloving and very supportive family; his family was prepared to supervise him if on conditional release and had a demonstrated ability toprovide effective oversight; he was a youthful offender without a serious or longstanding past record; he had received psychiatriccounseling to address his feelings of anger and inadequacy and, in that regard, had received a positive report from his doctor; he hadsuccessfully completed his Grade 12 equivalency; perhaps most importantly, he had displayed a willingness and an ability to abide bystringent conditions over the 13 months of interim release. … 40 There is ample authority for the proposition that sentences for youthful offenders should be directed at rehabilitation andreformation, not general deterrence...

This is common sense. A youthful offender, particularly one such as Mr. Bratzer, who has aninterest in a vocation and can be equipped with the tools to earn an honest living, is more likely to be diverted from a life of crime thanwould a career criminal. [48] The court in Bratzer determined that a conditional sentence was appropriate for the three armed robberies, despite the usualrange of sentence. Parliament has since removed a conditional sentence as a sentencing option for that offence.

Bail Conditions [49] In R v Knockwood, 2009 NSCA 98, Saunders J.A., for the unanimous court, discussed the impact of restrictive bail conditionson sentencing: 33 From these authorities I will take the present state of the law to be such that the impact of strict release conditions may beconsidered or “put into the mix”, together with all other mitigating factors, in arriving at a fit sentence. 34 Assuming that to be so, I would conclude that the impact of the particular conditions of release upon the accused must bedemonstrated in each case.

That is, there must be some information before the sentencing court which would describe the substantialhardship the accused actually suffered while on release because of the conditions of that release... [Italics in original] [50] Making a similar point, in R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488, [2006] O.J. No. 555 (Ont.C.A.), Rosenberg J.A. said, for the court: [33] Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account asa relevant mitigating circumstance.

However, like any potential mitigating circumstance, there will be variations in its potential impacton the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. I agree with Ms.Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest intoaccount.

The failure to do so will constitute an error in principle as explained by Laskin J.A. in Rezaie, supra, at p. 719 O.R., p. 103C.C.C.: [Error in principle] connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to givesufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. [34] I also agree with Ms. Paine, and to a large extent with Mr.

Doucette, that it is inappropriate to adopt a rigid formula because therecan be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest mayimpinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usualand in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult.

The accused may findthemselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment. [35] I generally agree with the comments of Conrad J.A. in Hilderman, supra, at para. 20: Any rehabilitation during pre-trial house arrest is excellent for society and an objective in sentencing. That does not mean a sentencingjudge cannot still impose the sentence he or she deems necessary to comply with all of the sentencing principles, including denunciationat the time of sentencing. The sentencing judge is not required to give a mathematical deduction.

The court will merely have to considerwhat impact the pre-trial house arrest should have on the sentence he or she eventually imposes. [36] Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In theend, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factormust be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a givencase. [37] In

summary, credit for pre-trial bail conditions should be approached in the following manner:

-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. -- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. -- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. -- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply. -- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity. -- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code . [ 51 ] In R. v. Zora , 2020 SCC 14 , Martin J., for the court, discussed the “ladder principle” as applied to the onerousness of bail conditions.

She noted that bail conditions are “intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person” and “are to be imposed with restraint not only because they limit the liberty of someone who is presumed innocent of the underlying offence, but because the effect of s. 145(3) is often to criminalize behaviour that would otherwise be lawful. (paras. 24-25). Collateral Consequences [ 52 ] Mr.

Simms was shot twice during these events, and will have long term medical repercussions as the result of a bullet being lodged in his neck but too close to his spine to remove. He also has buckshot lodged in his hip. In R. v. Suter , 2018 SCC 34 , Moldaver J. stated, for the majority: [46] As I have observed, sentencing is a highly individualized process... In R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 , this Court stated that a sentencing judge must have “sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender” (para. 38).

Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender. [47] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself...

In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence: As a result of the commission of an offence , the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added by Moldaver J.; p. 136.] I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateral consequences in Pham .

In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (

a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” ( Pham , at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid. ; s. 718.2 (

b) of the Criminal Code . The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, “[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished” (Manson, at p. 137).

Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender. [50] Professor Manson writes: “When an offender suffers physical injury as a result of an offence, this may be relevant for sentencing purposes especially if there will be long-lasting effects” (p. 136). Though Professor Manson had in mind a scenario where an offender is injured while committing a driving offence, in my view, his comments apply to any offender who suffers injury as a result of an offence.

In fact, the attenuating effect of an injury on the sentence imposed will likely be lessened where the injury is so directly linked to the offence as to be almost inevitable (see para. 49).

For instance, an injury resulting from an impaired driving offence (a foreseeable consequence of driving while impaired) may have less of an attenuating impact on the sentence imposed than if that same injury resulted from an unforeseeable event arising out of the offence. [51] Our courts have held that where an offender is attacked by fellow inmates in a prison and the attack is related to the offence for which the offender is in custody, such violence may be considered as a factor at sentencing...

Although being assaulted by a fellow inmate is not the same thing as being abducted and attacked by vigilantes, the rationale for taking these collateral consequences into account when sentencing an offender remains. In both scenarios, attacks relating to the commission of the offence form part of the

personal circumstances of the offender. To ensure that the principles of individualization and parity are respected, these attacks are considered at sentencing. [ 53 ] Conducting a home invasion while masked and armed with loaded shotguns is an incredibly dangerous crime. The chances of someone being shot, maimed, or killed is significant. While the injuries to Mr.

Simms were generally foreseeable, the long-term repercussions to him as a result of these injuries are relevant to the personal circumstances of the offender, as per Suter , and may thus be taken into account in arriving at the proper overall disposition. Guilty Plea [ 54 ] In appropriate circumstances, accused person is entitled to a reduction or “discount” of sentence for entering a guilty plea, in some cases up to one-third of the otherwise appropriate sentence. Moral Culpability [ 55 ] The moral culpability of both accused in this matter is very high.

They put on masks, armed themselves with loaded shotguns, entered a home they knew to be occupied, bound the occupants, beat the occupants and robbed the occupants. Analysis [ 56 ] Both Mr. Simms and Mr. Moore led apparently productive and pro-social lives before and after this offence. They both have strong family and community support. They both are involved in new and serious personal relationships. They both have pro-social plans for the future. Neither has provided any explanation for their foray into such serious criminal behaviour on July 11, 2017. [ 57 ] Mr.

Simms has suffered bullet wounds as a result of his participation in this offence and has presented evidence of financial loss occasioned by his bail restrictions. Yet, balancing against that is the fact that Mr. Simms breached his release conditions. Mr. Moore was not injured during his commission of this crime, nor did he breach his release conditions. For the most part both accused are similarly situated with regard to mitigating circumstances. [ 58 ] Neither of the accused provided the court with any substantial evidence of changes in their lives since the offence to support a sentence below the usual range.

By comparison, in Bratzer , while on bail the accused underwent psychotherapy, and his doctor reported that he had changed from being “impulsive, self-centered and immature in comparison to his age” to “ a young man of considerably greater maturity, insight and self-control”, who was “happier, more content with his life”, who had “been able to successfully accomplish several important goals” and was “ready to resume his life within society.” Probation services described Mr. Bratzer’s risk for recidivism as low. He had also undertaken significant community service overseas. [ 59 ] Similarly, in R. v.

Barrons , 2017 NSSC 216 , the offender, a university student, broke into his ex-girlfriends apartment and assaulted a male visitor. He was unarmed, and there were no injuries. He came from a privileged and supportive background. The Crown recommended federal custody. Several years had passed between the offence and sentencing, and the accused had abided by strict conditions, including an alcohol prohibition. Additionally, he had completed several years of therapy.

His therapist told the court that “the behaviours that led to the criminal charges were exceptions to the rule and impacted by alcohol”, that the offender had “gained insight into his dysfunctional relationship and the impact that the relationship was having on his stability” and had “made the necessary changes and ... regained control of his life.” The evidence indicated that he was a low risk to re-offend. The court noted that Mr.

Barrons had experienced collateral consequences at university as a result of his commission of the offence, finishing his degree but being unable to pursue the vocation he had studied for because of the offence. Mr.

Barrons was granted a lenient sentence as a result of those very significant mitigating factors. [ 60 ] In the instant case, while both accused have entered into new and positive relationships since the offence date, I do not have the type of evidence that was before the courts in Bratzer and Barrons that would allow me to conclude that whatever underlying issues contributed to either offender’s participation in the offences has been squarely addressed, such that they are low risks to re-offend. [ 61 ] That being said, I am satisfied that based on the otherwise pro-social circumstances of each accused, their sentences should be at the low end of the range for these offences. [ 62 ] The low end of the range of sentence for an armed home invasion of this sort is eight years in prison.

A reduction to acknowledge the guilty pleas would bring the sentences down to the six-year range. A further reduction is required in this case to reflect time spent on strict release conditions. Mr. Moore spent three years without incident abiding by those conditions. Mr. Simms breached his release conditions and was sentenced accordingly. This would bring the range of sentence in total for these specific offenders and these specific facts down to the five to six year range. Mr. Simms has significant collateral medical consequences directly resulting from his commission of these offences.

Being seriously injured while committing an armed home invasion is foreseeable. But it is an unfortunate consequence that Mr. Simms must live with nonetheless. While Mr. Moore was lucky enough to escape such collateral physical consequences, both offenders have suffered foreseeable financial and personal consequences from being participating in such a serious crime. [ 63 ] In my opinion, considering all of the circumstances, parity lends toward each of these offenders receiving a very similar sentence.

Conclusion [ 64 ] Giving the overall sentence “one last look”, considering the guilty pleas and the evidence of the offenders’ significant support network and otherwise pro-social lifestyle, I agree with the Crown that the appropriate total sentence is in the range of five to six years in prison. However, considering the mitigating factors, it should be at the low end of that range.

[ 65 ] For the charge of using a firearm while committing the indictable offence of forceable confinement, each offender will receive the mandatory minimum sentence of 12 months in custody, consecutive to any other sentence they will receive. [ 66 ] For the charge of break and enter and commit robbery, the home invasion charge, Mr. Moore will receive 48 months in custody. Mr. Simms will receive 44 months in custody, a slightly lesser amount to reflect the collateral consequence of his injuries as suggested in R. v.

Suter . [ 67 ] For the charge or wearing a mask while committing an indictable offence, each of them will receive 10 months in prison concurrent with the break and enter sentence. [ 68 ] The ancillary orders as put forward by the Crown are granted, including s.109 Criminal Code firearms prohibitions for life; forfeiture orders for the shotguns, ammunition and knife seized in relation to this matter; and DNA samples, since s. 348 of the Criminal Code is a primary designated offence. Arnold, J.