R v Johnson, 2021 SKCA 17

Court of Appeal for Saskatchewan Docket: CACR3393 Citation: R v Johnson , 2021 SKCA 17 Date: 2021-01-29 Between: Guerlyn Rhea Johnson Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Leurer On appeal from: CRM 400 of 2018, Saskatoon Appeal heard: January 7, 2021 Counsel: Guerlyn Johnson appearing on her own behalf Andrew Davis for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Guerlyn Johnson pled guilty to charges of robbery, carrying a weapon for a dangerous purpose and failing to attend court. A Court of Queen’s Bench judge sentenced her to a term of imprisonment of three years for the robbery charge, one year concurrent for carrying a weapon, and six months consecutive for failing to attend court. The sentencing judge reduced the total sentence by two months and 15 days to account for the time Ms. Johnson had spent in custody prior to being sentenced and made the required ancillary orders under the Criminal Code . [ 2 ] Ms. Johnson appeals her sentence.

She argues that the sentencing judge was closely acquainted with her late father and, as such, should not have presided over her case. She also contends that the sentencing judge imposed a sentence that was too lengthy in light of the time that had passed since the offences, the fact that she had no criminal record when the robbery was committed, and the fact that she was pregnant at the time of sentencing. [ 3 ] For the reasons that follow, I would dismiss Ms. Johnson’s appeal. II. BACKGROUND A. The robbery and carrying a weapon for a dangerous purpose [ 4 ] On January 25, 2007, Ms.

Johnson was living in Saskatoon. She had arranged for a taxi to pick her up near her home. The taxi arrived at around 3:00 a.m. Ms. Johnson got into the back seat. Once inside, she reached into the front seat, put the driver in a choke hold with one arm, held a knife to his throat with the other, and demanded his money. The driver fought to pull Ms. Johnson’s knife hand away and, in the process of doing so, sustained a serious injury to his right hand. Despite the injury, the driver was able to get enough leverage to pin Ms.

Johnson back in her seat, at which point she told him she had a gun and, once again, demanded his money. The driver handed over approximately $65 and Ms. Johnson got out of the cab. [ 5 ] After Ms. Johnson left the taxi, the driver drove himself to the hospital for medical attention. A tendon in his right hand had been severed and nerves had been damaged. Surgery was required. He ultimately suffered some permanent loss of function in that hand. [ 6 ] At the time she committed these offences, Ms. Johnson was 20 years old and had no criminal record. B.

The period between the commission of the offences and sentencing [ 7 ] Ms. Johnson was initially arrested at her residence approximately two weeks after the robbery occurred, on the strength of a photo lineup identification made by the victim of the offence. At the time of her arrest, Ms. Johnson was wearing a pair of pants that appeared to have blood on them. The pants were seized as evidence. Ms. Johnson was released at that time, without being charged, because the police believed further investigation was necessary. They sent Ms. Johnson’s pants to the forensic lab for DNA testing.

That testing eventually confirmed that the blood on the pants had come from the taxi driver and, on April 15, 2008, an information was sworn charging Ms. Johnson with robbery and carrying a weapon for a dangerous purpose. By the time that was done, however, Ms. Johnson had left the province and the police were unable to locate her. A warrant issued for her arrest which, ultimately, was not executed until more than a decade later. [ 8 ] In that intervening period, Ms. Johnson amassed a record comprised of 15 convictions for Criminal Code offences. Among

those were six convictions for failing to attend court, as well as convictions for breaching bail conditions, breaching probation orders andbeing unlawfully at large. She was also convicted of assault in 2012 and another robbery in 2013. For the 2013 robbery, Ms. Johnsonreceived what was effectively a 30-month sentence, which was reduced by 14 months to account for pre-sentence custody. [9] Ms. Johnson entered guilty pleas to the present offences on October 28, 2019. A pre-sentence report was ordered andsentencing was adjourned until February 21, 2020. Ms.

Johnson subsequently failed to attend a number of meetings with the probationofficer for the purpose of preparing the pre-sentence report. As a result, the sentencing hearing had to be adjourned several more times sothat Ms. Johnson could do what was necessary, from her end, to ensure that the pre-sentence report could be completed. On July 16, 2020,despite having been ordered by the sentencing judge to personally be present so that sentencing could proceed, Ms. Johnson failed toattend court. Her lawyer obtained an adjournment of the sentencing to July 28, 2020.

Once again, the sentencing judge ordered Ms.Johnson’s personal attendance for that day. Once again, she failed to attend court. A bench warrant was issued. Ms. Johnson was arrestedon that warrant on August 19, 2020 and remained in custody until she was sentenced. C. The sentencing hearing [10] At the sentencing hearing, the Crown, citing this Court’s decisions in R v Cappo (1994), (SK CA), 120 SaskR 309 [Cappo] and R v Gordon, 2011 SKCA 130, 375 Sask R 312 [Gordon], submitted that Ms. Johnson should receive a sentence of fouryears imprisonment, less appropriate credit for pre-sentence custody.

In making that submission, the Crown highlighted what thosedecisions say about the need for judges to impose sentences that focus on strongly denouncing and protecting the public from the violentand dangerous conduct inherent in robbery, especially where the offence is committed against vulnerable victims like convenience storeclerks and taxi drivers. [11] The Crown also pointed out the aggravating circumstances of Ms. Johnson’s offence, including the significant injuries sufferedby the victim. The Crown acknowledged that Ms.

Johnson had no criminal record at the time she committed the robbery, but argued thatthe mitigating effect of that factor was somewhat lessened by the fact that she had compiled an extensive record while this chargeremained outstanding, including another conviction for robbery. The Crown also acknowledged that the fact Ms. Johnson had pled guiltywas a mitigating factor but noted that her pleas came at the eleventh hour and in the face of an overwhelming case against her. [12] Ms.

Johnson’s lawyer highlighted her difficult upbringing, including the fact that she had been born in Haiti and adopted froman orphanage by a Canadian family at an early age, and that she had been sexually assaulted as an adolescent. At the time she committedthe robbery in 2007, Ms. Johnson had been struggling with addiction, transiency and homelessness. Those problems continued after sheleft Saskatchewan. Ms. Johnson’s lawyer implored the sentencing judge to treat her as a first-time offender and argued that a sentence oftwo years less a day, followed by probation, would be appropriate. Ms.

Johnson’s lawyer invited the sentencing judge to consider lettingher serve the sentence in the community as a conditional sentence in light of the fact that, when the robbery and weapon offence had beencommitted in 2007, conditional sentence orders were still available for such offences. [13] Ms. Johnson also spoke at the sentencing hearing. She told the judge that she was three months pregnant.

She also said she was“not the same woman” who had committed the crimes, described herself as an “excellent candidate for rehabilitation” and said that, asdemonstrated by the fact that she had been at large for the last few years without reoffending, she was “not a threat to the public”. [14] The Crown took issue with Ms. Johnson’s assertion that she was pregnant. In that regard, Crown counsel said he was skepticalof Ms. Johnson’s claim and asserted that the Crown did not accept Ms. Johnson’s pregnancy as a fact “unless there was some proof”. [15] Ms.

Johnson responded by telling the sentencing judge that her pregnancy had been verified by way of an ultrasound. Herlawyer also advised the Court that Ms. Johnson’s pregnancy did not factor into his submission because, in his mind, that information “wasmore effective coming from Ms. Johnson”. [16] Following these comments, there was no further discussion about the subject of Ms. Johnson’s pregnancy. The sentencingjudge adjourned court to consider his decision. D. The sentencing decision [17] The sentencing judge began his decision by indicating that he did not consider it appropriate to permit Ms.

Johnson to serve hersentence in the community as a conditional sentence. In that regard, he cited Ms. Johnson’s history of convictions for offences of failing toattend court and failing to comply with conditions of bail and probation orders. He also observed that the robbery for which Ms. Johnsonwas being sentenced involved “overt violence” that “would have been terrifying” to the victim and had caused lasting injuries. Thesentencing judge remarked that “the offence itself is serious, the circumstances are aggravating”. [18] The sentencing judge referred to the “dated” nature of the offence and the fact that Ms.

Johnson’s criminal record was“sporadic”, “intermittent” and “episodic”. He also stated he was taking into account “all of Ms. Johnson’s difficulties” but,notwithstanding that, a custodial disposition was appropriate in light of the seriousness of the offence. He concluded that a term ofimprisonment of 36 months was a fit sentence for the robbery charge and 12 months, concurrent, for the charge of carrying a weapon for adangerous purpose. [19] As to the remaining charge, the sentencing judge observed that Ms.

Johnson’s failure to attend court was a separate transactionand, as such, warranted a consecutive sentence. He went on to say that it was not a “fail to appear with little or no consequence”, but ratherone that had “significant consequences”, given the expenditure of resources and time, and the “difficulty for all concerned” that had beencaused by Ms. Johnson’s failure to attend court when required. He concluded that a sentence of six months was appropriate. III. ANALYSIS

[20] Sentence appeals are governed by a deferential standard of review.

An appellate court can intervene to change a sentence onlyif the sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence (R v Friesen,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 vSuter, 2018 SCC 34 at para 24, [2018] 2 SCR 496). [21] Errors in principle that may justify appellate intervention include errors of law, failure to consider a relevant factor, or theerroneous consideration of aggravating or mitigating factors.

An appellate court cannot intervene merely because it would have weighedrelevant sentencing objectives, principles, or factors differently than the sentencing judge.

The weighing or balancing of relevant factors isan error in principle only if, by emphasizing one factor or by not giving weight to another, the trial judge exercises his or her discretionunreasonably (Friesen at para 26). [22] If an error in principle had no impact on the sentence, appellate intervention will be justified only if the sentence isdemonstrably unfit (Friesen at para 26). [23] While it is possible for a sentence to be demonstrably unfit even if the judge imposing it has made no error in principle, thethreshold for intervention on that basis is very high.

The phrase “demonstrably unfit” has been equated with expressions such as “clearlyunreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure”(Lacasse at para 52). An appellate court cannot find a sentence to be demonstrably unfit just because it would have weighed the relevantsentencing factors differently than the trial judge (Lacasse at para 49; R v Burke, 2016 SKCA 100 at para 2, 484 Sask R 224), or becauseit would have arrived at a different number. [24] The first line of Ms.

Johnson’s argument is an assertion that the sentencing judge ought not to have presided over the casebecause he was a “close personal friend” of her father. There is nothing in the record before us that supports this contention. Neither thecourt file nor the transcript contains any mention whatsoever of a relationship between the sentencing judge and Ms. Johnson’s father.There is nothing in the record to suggest that Ms. Johnson ever raised this as a matter of concern prior to filing her notice of appeal. Norhas she applied to lead fresh evidence with respect to this issue. Ms.

Johnson’s bare assertion in this regard does not provide a basis for thisCourt to intervene and, accordingly, this argument must be rejected. [25] The second line of Ms. Johnson’s argument bears closer examination. While the sentencing judge expressly stated that heconsidered Ms. Johnson’s personal circumstances, it does not appear that he resolved the contentious fact of whether or not Ms. Johnsonwas pregnant at the time of sentencing. [26] Sentencing is an individualized process.

A sentencing judge must consider the offender’s personal circumstances to the extentthat they are relevant and bear on the determination of a fit sentence. The failure to consider a relevant factor is an error in principle. [27] Although there does not appear to be complete consistency in the way courts have treated the fact that an offender is pregnantat the time of sentencing, the jurisprudence supports the proposition that an offender’s pregnancy is a relevant factor that must beconsidered.

A number of appellate-level decisions have treated an offender’s pregnancy at the time of sentencing as something of anexceptional personal circumstance that may, but does not always, have an impact on the sentence imposed (see for example: R vGarchinski, 2007 SKCA 75, 304 Sask R 165; R v Windigo, 2008 SKCA 91, 314 Sask R 75; R v Bergen, 2009 ABCA 69, 448 AR 22; R vFrickey, 2017 ONCA 1024, 22 MVR (7th) 184; and R v Murdoch, 2015 NBCA 38, 440 NBR (2d) 7), or as an “additional factor” that mayjustify a difference in sentence between otherwise similarly-situated offenders (see R v Bi, 2011 BCCA 204, 303 BCAC 316). [28] The reason for the lack of consistency, or perhaps more properly, lack of specificity, in treatment of an offender’s pregnancy insentencing may stem from the fact that it does not appear to fit neatly into any of the prescribed considerations set out in ss. 718 to 718.2of the Criminal Code.

Instead, depending on the individual circumstances of any given case, the fact that an offender is pregnant maybear on several of the considerations that determine a fit sentence and may have a variable impact on how a sentencing judge weighs andbalances the factors set out in ss. 718 to 718.2. [29] As examples, the fact that an offender is pregnant may have an impact on a sentencing judge’s determination of whichsentencing objectives in s. 718 of the Criminal Code should be emphasized, because it may speak to the offender’s prospects forrehabilitation or bear on the level of risk she poses to the community.

The fact that an offender is pregnant at the time of sentencing mayalso bear on the question of whether it is appropriate to pursue restorative goals, such as preventing fragmentation of a young family orkeeping the offender’s child from being placed in the foster care system (see, for example, R v Dochniak (1980), 1980 ABCA 18, 25 AR 187 (CA)), rather than focusing on objectives such as deterrence, denunciation or separation of the offender from society. [30] An offender’s pregnancy may also affect the consideration of sentencing principles such as proportionality, parity and restraint.In this respect, the impact that a custodial sentence may have on an offender who has recently given birth, or will give birth while incustody, is a relevant consideration that can properly play a role in the determination of whether or not incarceration is appropriate and, ifit is, the length of incarceration (see for example, R v McNeil, 2019 ABQB 453, 50 MVR (7th) 74). [31] As noted, during the sentencing hearing, Ms.

Johnson asserted that she was pregnant. By doing so, she alerted the sentencingjudge to something that was, on its face, a relevant consideration in determining a fit sentence, given the nature of the offences and thenature of potential sentences in play. Crown counsel indicated that the fact of Ms. Johnson’s pregnancy was contested. Section 724(3) ofthe Criminal Code sets out the procedure to be followed where there is “a dispute with respect to any fact that is relevant to thedetermination of a sentence”.

The sentencing judge did not follow the process in s. 724(3) and made no finding regarding the disputed factof Ms. Johnson’s pregnancy. The failure to make a necessary finding of fact in relation to a relevant sentencing consideration was an errorin principle (see for example, R v Williams, 2020 SKCA 108 at para 21). [32] Leaving aside the question of whether Ms.

Johnson was required to lead fresh evidence in this Court to establish her pregnancy(see, in that regard, R v Nguyen, 2016 BCCA 381[Nguyen]) and accepting, for the sake of argument, that what she said at the sentencinghearing was true, I am not persuaded that the sentencing judge’s error in principle had any impact on the sentence ultimately imposed. Letme explain.

[33] As a starting point, even though an offender’s pregnancy is a relevant consideration, it does not automatically mean that a fitsentence for that offender will be different.

As the British Columbia Court of Appeal noted in Nguyen, the fact that an offender is pregnantdoes not alter the circumstances of the offence or “mute any of the aggravating factors” relevant to the determination of a fit sentence (atpara 47). [34] There are any number of situations where pregnancy may have little or no impact on the sentence ultimately imposed.Examples may include situations where the offence is particularly serious or involves significant interpersonal violence, or where theoffender has a significant criminal record, such that the court’s focus must be on sentencing objectives such as deterrence, denunciation orprotection of the public rather than restorative or rehabilitative goals, or if the offence is of such a nature that a penitentiary sentence isgenerally called for, (see, for example, R v Eakins, 2016 BCCA 194; 387 BCAC 19 and R v Wood, 2006 NBCA 49, 210 CCC (3d) 526). [35] In this case, even though the sentencing judge failed to resolve the factual dispute about whether or not Ms.

Johnson waspregnant, he clearly considered her personal circumstances and personal history. Part of that personal history included Ms. Johnson’scriminal record, her poor track record when it came to complying with court orders and lack of success in past attempts at rehabilitation. [36] The sentencing judge also properly observed that, notwithstanding Ms.

Johnson’s personal circumstances, the offences forwhich she was being sentenced included a robbery that involved “overt violence” and the use of a weapon against a victim who washighly vulnerable 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 offencesfor which 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). [38] Accordingly, I am not persuaded that the sentence ultimately imposed in this case was impacted by the sentencing judge’s errorin principle. In light of all the relevant factors, the most significant of which were the serious and violent nature of Ms.

Johnson’s offences,the significant and lasting injury caused to a vulnerable victim, and the record she had amassed in the intervening period, a shortersentence – especially one served in the community – simply would not have been appropriate. [39] Further, Ms. Johnson has not established that the sentencing judge made any other error in principle that would justifyinterference. The sentencing judge’s reasons, although brief, demonstrate that he took into account both the time that had passed betweenthe commission of the offences and the date of sentencing and the fact that Ms.

Johnson had no record at the time of committing them. Infact, apart from the non-impactful error that I have identified, I am of the view the sentencing judge was fully attentive to the relevantsentencing principles and that he considered and balanced them in a reasonable way. [40] That leaves only the question of whether the sentence is demonstrably unfit. In my view, it is not. Bearing in mind the highthreshold that must be met in that regard, along with the extremely serious nature of the offences committed by Ms.

Johnson, andconsidering the line of authority referenced above, it cannot be said that the sentence imposed in this case was so unreasonable orexcessive as to invite interference from this Court. IV. CONCLUSION [41] For the foregoing reasons, the appeal is dismissed. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Leurer J.A.” Leurer J.A.