R v Charles, 2021 SKCA 114

Court of Appeal for Saskatchewan Docket: CACR3448 Citation: R v Charles , 2021 SKCA 114 Date: 2021-08-30 Between: Jeremy Ray Charles Appellant And Her Majesty the Queen Respondent Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On appeal from: Provincial Court, Saskatoon Appeal heard: August 12, 2021 Counsel: Jeremy Ray Charles on his own behalf Grace Hession-David for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Jeremy Charles pled guilty in Provincial Court to charges of robbery and failing to appear in court. He was sentenced to a term of imprisonment of 20 months for the robbery, in addition to 10 months’ credit received for pre-sentence custody. The sentencing judge also made ancillary orders authorizing the taking of a DNA sample from Mr. Charles and prohibiting him from possessing firearms for a period of 10 years. A concurrent sentence of 30 days was imposed for the charge of failing to appear (reduced to “time served” once credit for pre-sentence custody was applied). [ 2 ] Mr.

Charles appealed against his sentence on the robbery charge. Following the hearing, we allowed the appeal orally, with written reasons to follow. These are those reasons. II. BACKGROUND [ 3 ] Some time after 10:00 p.m. on August 14, 2020, Mr. Charles approached two individuals who were walking home from a bar in downtown Saskatoon. Mr. Charles was high on methamphetamine, shirtless, and brandishing a weapon (an 18” metal bar with spikes sticking out of it). Mr. Charles raised the weapon in the air and told the victims to “put their shit down”.

One of the individuals complied and placed his phone, identification and debit card on the ground. Mr. Charles picked up the items and ran off. The police were called. Officers located Mr. Charles a short time later and, after a brief foot chase, arrested him. The stolen property was recovered. Mr. Charles was released on bail but failed to attend for his first court appearance. He was later arrested on the bench warrant and remained in custody until he was sentenced. [ 4 ] Mr. Charles pled guilty to the robbery and failing to appear charges.

At the sentencing hearing, Crown counsel sought a sentence of three years’ imprisonment for the robbery, pointing to the serious and violent nature of the offence and the high risk Mr. Charles posed for reoffending as factors that justified the imposition of that sort of sentence. [ 5 ] Mr. Charles’s counsel noted that he had entered a guilty plea and accepted responsibility for the offence and spoke of his difficult personal circumstances and struggles with addiction. Counsel also drew the sentencing judge’s attention to the fact that Mr.

Charles had not physically harmed either of the victims and to the fact that the victims were not inherently vulnerable to being robbed in the same way that people who work as taxi drivers or convenience store clerks are. He argued that Mr.

Charles’s offence fell at the lower end of the range of seriousness for robberies, and that a sentence in the range of 12 to 15 months would be appropriate before applying credit for pre-sentence custody. [ 6 ] The sentencing judge, relying primarily on this Court’s decision in R v Johnson , 2021 SKCA 17 [ Johnson ], stated that “our Court of Appeal has consistently reiterated that convictions for robbery will generally result in a sentence of three years incarceration”.

After quoting directly from paragraph 37 of Johnson , the sentencing judge went on to say that she took that portion of the decision “to mean that robberies committed against vulnerable victims are to be visited with serious penalties” and that special notice must be taken of the “particular vulnerability of store clerks and taxi drivers who often work alone and late into the night”. [ 7 ] The sentencing judge reviewed the aggravating factors she found to be present. Among those were Mr.

Charles’s criminal record, which included previous convictions for offences involving violence and the fact that, when he committed the present offence, he was armed with a weapon and high on methamphetamine and therefore acting unpredictably. The sentencing judge also considered the fact that the victim “was either alone or with one other person and walking home at night” to be an aggravating factor, because it would likely have been “a terrifying encounter” for him.

[8] The sentencing judge considered Mr. Charles’s guilty plea to be a mitigating factor, although its effect was somewhattempered by the fact that it came “in the face of an overwhelmingly cogent Crown case”. She then turned her attention to s. 718.2(

e) ofthe Criminal Code. In that respect, she acknowledged counsel’s argument that Mr. Charles’s background and circumstances as anIndigenous person should be seen as reducing his moral culpability. She then went on to say: Although hardships visited upon Mr. Charles -- upon Mr.

Charles because of his indigenous heritage must form a part of thecircumstances to be considered in sentencing, they do not mean an automatic discount in the sentence. … [9] Then, after quoting from R v Gladue, (SCC), [1999] 1 SCR 688 at para 79 [Gladue], and R v Chanalquay,2015 SKCA 141 at paras 36 and 38, [2016] 4 WWR 242 [Chanalquay], the sentencing judge said: It is the view of the Court that in this case deterrence, both general and specific, denunciation and public protection are principles to begiven precedence.

Individuals in this community who are simply walking home should have confidence that they can do so safely. Thosewho prey upon them should know that the courts will impose significant sentences. Although I accept that the accused is now remorseful, he has not of late been responsive to community based interventions. This suggeststhat community based rehabilitation is not likely to be successful. There is a need to separate such individuals from the community. … I have no doubt that his poor performance while in the community is directly linked to his substance abuse and until that is well and trulyin hand, Mr.

Charles will remain a high risk to reoffend. Given the serious nature of this robbery, the use of a weapon, the prior record ofthe accused and his risk to reoffend, it is the view of the Court that a three-year sentence is appropriate. However, against that must bebalanced Mr. Charles’s guilty plea, his expression of remorse, which I take to be genuine, and his willingness to participate in as muchprogramming as was available to him while on remand. [10] The sentencing judge determined that a sentence of imprisonment of 30 months was warranted on the robbery charge. Shenoted that Mr.

Charles had spent 198 days in custody prior to being sentenced and gave him credit for that time at a ratio of 1.5 to 1. Thisresulted in a “go-forward” sentence of 20 months. III. ANALYSIS [11] The standard of review applicable to sentence appeals is well known.

An appellate court can intervene to change a sentenceonly if the sentencing judge made an error in principle that had an impact on the sentence or the sentence is demonstrably unfit (R vFriesen, 2020 SCC 9 at paras 25–26, 391 CCC (3d) 309 [Friesen]; R v Lacasse, 2015 SCC 64 at paras 41–48, [2015] 3 SCR 1089[Lacasse]; R v Suter, 2018 SCC 34 at para 24, [2018] 2 SCR 496). [12] As indicated in our oral reasons, we were persuaded that the sentencing judge made two errors in principle that impacted thesentence. [13] The first error was in approaching the task of sentencing from the standpoint that this Court has set a general three-year startingpoint sentence for the offence of robbery.

With respect, that is a misreading of this Court’s comments in Johnson. [14] In Johnson, the offender was a young woman who, after calling for a taxi at 3:00 a.m., robbed the driver at knifepoint. She putthe driver in a choke hold with one arm, held a knife to his throat with the other, and demanded his money. In the ensuing struggle, thevictim was cut with the knife and suffered a serious injury to his hand that resulted in permanent loss of function.

The sentencing judgeimposed a three-year term of imprisonment. [15] In upholding the three-year sentence imposed by the trial judge, I wrote: [36] The sentencing judge … properly observed that, notwithstanding Ms. Johnson’s personal circumstances, the offences for whichshe was being sentenced included a robbery that involved “overt violence” and the use of a weapon against a victim who was highlyvulnerable to such offences because of the nature of his employment, and which resulted in serious and lasting injury. [37] It is also accurate to say that Ms.

Johnson’s pregnancy at the time of sentencing did nothing to alter the gravity of the offences forwhich she was being sentenced or to mute the aggravating factors mentioned above. Nor did it change the fact that denunciation anddeterrence were particularly pressing objectives in sentencing. In this respect, the sentencing judge’s determination that, given theseriousness of the offences, a custodial term was required, even taking into account “all of Ms.

Johnson’s difficulties” was consistent witha long line of cases in which this Court has repeatedly held that offenders who commit robberies against vulnerable commercialestablishments or victims should be subject to serious penalties. That is to say, such offences will almost invariably be visited with lengthyprison terms (see for example: Cappo; R v Severight (1996), (SK CA), 137 Sask R 306 (CA); R v Sangwais, 2000SKCA 49, 189 Sask R 291; R v Warkentin (1994), (SK CA), 125 Sask R 236 (CA); and R v Kirklon, 2015 SKCA 67,460 Sask R 233).

In fact, in Gordon, this Court suggested that because of the danger to life and safety inherent in the offence of robberyand the particular vulnerability of taxi drivers and convenience store clerks to such offences, a sentence of three years imprisonmentrepresents “the lower end of the scale” (at para 20). (Emphasis added) [16] The comments in this portion of Johnson were directed at certain types of robberies, i.e., those committed against persons who,by virtue of the nature of their employment, are particularly vulnerable to that crime. While the sentencing judge in Mr.

Charles’s case wascorrect to observe, as she did, that “robbery is considered a very serious offence” that brings sentencing objectives such as deterrence anddenunciation to the forefront, she erred in principle by equating the vulnerability of the victims in this case with that of persons who workin robbery-susceptible occupations.

[17] To be clear, I am not saying that the sentencing judge erred by finding that the robbery Mr. Charles committed called for asignificant sentence. Nor am I saying that it was an error for her to find that unarmed individuals walking on city streets late at night arevulnerable to unexpected acts of violence from strangers or that it was an error to reflect that vulnerability in the sentence. However, whilethe degree of vulnerability of the victim is a relevant consideration in determining the gravity of the offence, the extent of its impactalways turns on the individual circumstances of the case.

In that respect, persons who are simply walking down the street are in a differentposition than those whose occupations require them to work in circumstances that put them at particular risk of being robbed, i.e., workingalone, late at night or in isolation, while in possession of, or being responsible for, cash or other valuable products.

Notably, in situationswhere the robbery did not involve a victim who was particularly susceptible by virtue of their employment, this Court has, on a number ofoccasions, imposed or upheld sentences of less than three years (see, for example: R v McKay, 2010 SKCA 66, 350 Sask R 279; R vNahbexie, 1986 SKCA (SentDig) 170; R v Pakula (1996), (SK CA), 148 Sask R 79 (CA); R v Cheekinew, 2007 SKCA(SentDig) 24; and R v Peepeetch, 1998 SKCA (SentDig) 28). [18] In this case, because the sentencing judge failed to draw that distinction, she approached the determination of a fit sentence asthough a starting point of three years was applicable.

That, with respect, was an error and it clearly impacted the sentence. [19] The second error concerns the sentencing judge’s application of s. 718.2(

e) of the Criminal Code. [20]

Section 718.2(

e) requires sentencing judges to consider all available sanctions other than imprisonment that are reasonable inthe circumstances, while paying particular attention to the circumstances of Indigenous offenders.

This Court has, on many occasions,emphasized that s. 718.2(e), interpreted in light of the Supreme Court’s decisions in Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR433, requires that the sentencing of Indigenous offenders be approached in a different way (see, for example: Chanalquay; R v Whitehead,2016 SKCA 165, 344 CCC (3d) 1 [Whitehead]; R v Delorme, 2017 SKCA 3; R v McKay, 2019 SKCA 129; R v J.P., 2020 SKCA 52, 62CR (7th) 328 [J.P.]; R v Ratt, 2021 SKCA 7; R v Kishayinew, 2021 SKCA 32; and R v Charles, 2021 SKCA 75, [2021] 7 WWR 734[Charles]). [21] As part of this approach, a judge sentencing an Indigenous offender must consider the unique systemic or background factorsthat may have played a

part in bringing the offender before the courts, as well as the types of sentencing procedures or sanctions that maybe appropriate in the circumstances for the offender because of his or her Indigenous heritage (Gladue at para 66; Chanalquay at para 34;Charles at para 37). [22] While s. 718.2(

e) does not dictate a particular result or necessarily require the reduction of a sentence just because an offenderis Indigenous, the analysis mandated by it is an integral part of the reasoning which leads to a fit sentence (Gladue at para 88; Chanalquayat paras 34–37). Part of that analysis is a consideration of the extent to which an Indigenous offender’s unique circumstances – includingbackground and systemic factors – may have had a bearing on his or her moral culpability (Ipeelee at paras 71 and 73; Whitehead at paras56–58; Chanalquay at para 40).

This is required even where the nature of the offence calls for a sentence of incarceration, as Jackson J.A.,citing J.P., explained in Charles: [41] In J.P., Leurer J.A. emphasized that even if a fit sentence requires incarceration, the “requirement for proportionality demands thatthe impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determining theperiod of incarceration” (at para 63).

This is so because a sentencing judge must account for “any factor affecting moral blameworthiness(whether by increasing or decreasing it)” and those factors “must be given weight in order to impose a fit sentence based on the principleof proportionality” (emphasis in original, at para 64). [23] In this case, there was a great deal of information in the pre-sentence report concerning Mr. Charles’s personal circumstancesand his experiences as an Indigenous person that was highly pertinent to his moral culpability for the offences for which he was beingsentenced. The pre-sentence report spoke of the fact that Mr.

Charles grew up, for the most part, on Sturgeon Lake First Nation. Hismaternal grandfather was a product of the residential school experience and the full effect of that experience has cascaded down throughthe generations of Mr. Charles’s family, with transience, poverty, substance abuse and domestic violence having had a consistentpresence. Mr. Charles’s mother had him when she was very young and never told him who his biological father is. His mother wasinvolved in a series of dysfunctional and violent domestic relationships. Mr.

Charles was exposed to that violence as a child and took onthe role of protector for his younger siblings. Mr. Charles’s stepfather, a gang member, was killed while serving a sentence in apenitentiary. His brother died by suicide in 2019. Mr. Charles has suffered from substance addiction, has a learning disability and did notcomplete high school. His employment history is sporadic. He has experienced racism in the community and in the workplace and has hadperiods of homelessness. [24] The sentencing judge in this case acknowledged that the “hardships visited upon Mr.

Charles … because of his indigenousheritage must form part of the circumstances to be considered in sentencing”. However, in my view, she fell into error by failing toconduct any analysis of Mr. Charles’s personal circumstances with an eye to ascertaining how they may have affected his moralculpability. Instead, she simply determined that they did not compel an “automatic discount in the sentence”. As Tholl J.A. observed inKishayinew, the personal circumstances of an offender are “highly relevant” when assessing moral culpability (at para 49).

Whensentencing an Indigenous offender, a sentencing judge is required to examine those personal circumstances, along with systemic andbackground factors, in light of the particulars of the crime in issue, in order to determine the extent to which the unique circumstances ofthe offender bear on his or her culpability.

This is, admittedly, a demanding analysis (Chanalquay at para 52), but it must take place.Again, with due respect, the sentencing judge’s analysis fell short here, and that error impacted the sentence. [25] Where a sentencing judge is found to have made an impactful error, it falls to this Court to determine a fit sentence. [26] A fit sentence must respect the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code by beingproportionate to the gravity of the offence and the degree of responsibility of the offender. [27] In that respect, there is no doubt that robbery is an inherently serious offence.

By definition, it involves theft or attempted theftof property from another person in conjunction with the actual or threatened use of violence. The Criminal Code provides for a maximumpenalty of life imprisonment and also precludes persons who commit robbery from eligibility for conditional sentences of imprisonment.All of this places robbery in the upper echelon of offences, in terms of objective seriousness.

[ 28 ] That said, some robberies are more serious than others. The circumstances of the robbery committed by Mr. Charles fall, in my view, at the mid-to-low end of the scale. While Mr. Charles was armed with a weapon and brandished it in a threatening manner, he did not actually use the weapon or directly apply any force to the victims. Neither victim was injured. Only a small amount of property was taken and it was recovered a short time later.

While the victims were vulnerable, in that they were unarmed and walking on a city street at night, they were not subject to the dangers inherent in certain types of employment that leave workers particularly vulnerable to being robbed. [ 29 ] The fact that Mr. Charles was walking the streets while armed with a weapon serves to elevate the degree of his responsibility, as it suggests some degree of planning. However, against that must be balanced the factors that tend to reduce his moral culpability. Chief among those are his background and personal circumstances. Mr.

Charles’s experiences as an Indigenous person have undoubtedly played a significant role in where he finds himself today. They have played a role in his criminal history and they played a role in the commission of the robbery on August 14, 2020. It is proper to recognize that those factors have impacted Mr. Charles in a way that diminishes his moral culpability, because he simply cannot be viewed in the same light as someone coming from a position of advantage, or someone who has not suffered through the things he has. [ 30 ]

Section 718.2(

a) requires the consideration of aggravating and mitigating factors. The primary aggravating factor in this case is Mr. Charles’s criminal record. Prior to committing the robbery, his record included more than 30 convictions. While most of his past convictions relate to property offences and offences against the administration of justice, he has two prior convictions for offences involving violence.

There are also a number of mitigating factors, which include his guilty plea and acceptance of responsibility. [ 31 ] While denunciation and deterrence must always be given prominence in sentencing for robbery, there are other sentencing objectives that must be considered in Mr. Charles’s case as well. The pre-sentence report notes that he has a number of issues that need to be addressed, including his addiction to methamphetamine. While Mr. Charles has not performed particularly well under community supervision in the past, he made efforts to access programming while awaiting sentence.

This is relevant, as it helps inform the principle of restraint and suggests that it is not necessary to impose a lengthy period of incarceration for the purpose of separating Mr. Charles from the public. [ 32 ] In considering the principle of parity, Mr. Charles’s crime simply lacks many of the aggravating features that often push sentences for robberies into the three-year and above range. There was no actual violence inflicted on the victims. They suffered no physical injuries. The amount of property taken was small and it was quickly recovered.

The robbery did not take place at a bank or any other type of commercial business. Nor were the victims vulnerable employees. While Mr. Charles has a criminal record, he has no prior convictions for robbery and only two previous convictions for violent offences. [ 33 ] Weighing all of that in the balance, the Court was of the view that a fit and appropriate sentence on the charge of robbery, before granting credit for pre-sentence custody, is one of 24 months. We also agreed to grant the same reduction for pre-sentence custody that the sentencing judge had granted and to leave the ancillary orders in place. IV.

CONCLUSION [ 34 ] For the foregoing reasons, the Court allowed the appeal at the end of the hearing and set aside the sentence imposed by the sentencing judge on the charge of robbery. In its place, the Court imposed a sentence of 24 months’ imprisonment before granting credit for pre-sentence custody. Mr. Charles is entitled to 10 months’ credit for the 198 days he spent in custody prior to being sentenced.

This results in a sentence of imprisonment of 14 months, going forward from April 8, 2021. [ 35 ] The DNA sample order and firearms prohibition order shall remain, as imposed by the sentencing judge. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.