R. v. Rocheleau, 2013 ONCA 679

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rocheleau, 2013 ONCA 679

DATE: 20131112

DOCKET: C52685

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Rocheleau

Appellant

Frank Addario and Joseph Heller, for the appellant

Deborah Krick, for the respondent

Nancy Dennison and Andrea Bourke, for the intervener the Attorney General of Canada

Heard: February 19-22, 2013

On appeal from the conviction entered by Justice Jack D. Nadelle of the Ontario Court of Justice on December 1, 2009, and from the sentence imposed on August 20, 2010, with reasons reported at [2010] O.J. No. 5308.

Tulloch J.A.:

I Overview

1The appellant pled guilty to 24 charges arising out of four robberies and three break and enters that occurred between October 6, 2008, and March 2, 2009. The appellant received sentences totalling seven years and nine months’ imprisonment, having been given three months’ credit for his pre-sentence custody. He appeals conviction and sentence.

2The conviction appeal focuses on the multiple convictions arising out of three of the robberies to which the appellant pled guilty. In respect of each of those robberies, the appellant pled guilty to and was convicted of:

• robbery with a firearm;
• unlawful confinement of employees at the places robbed; and
• the use of a firearm in the commission of the unlawful confinement of the employees.

3The appellant submits that the Kienapple principle precludes convictions on all three charges arising out of the same delict: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Counsel submits that the appellant should have been convicted of only the charge of robbery with a firearm and that the unlawful confinement and use of a firearm in the commission of an unlawful confinement charges should have been stayed. In his submissions, counsel directed most of his attention to the use of a firearm in the commission of an unlawful confinement charges. This emphasis is understandable in that those charges attracted a mandatory one-year minimum sentence that had to be made consecutive to the robbery sentences. In practical terms, staying the unlawful confinement charges would have no effect on the total sentence, but staying the use of a firearm in the commission of an unlawful confinement charges could reduce the total sentence by three years.

4The appellant also appeals his sentence. He argues that the combination of the requirement in s. 85(4) of the Criminal Code that any sentence imposed for the use of a firearm in the commission of an indictable offence be consecutive to any other punishment for offences arising out of the same event and consecutive to any other sentence being served at the time is unconstitutional when combined with the mandatory four-year minimum penalty for use of a firearm in the commission of a robbery. This submission assumes that the appellant’s conviction appeal has not succeeded and the court has affirmed his convictions on the charges of using a firearm in the commission of an unlawful confinement.

5I would allow the conviction appeal. In my view, the appellant was properly convicted of both the robbery with a firearm and the unlawful confinement charges relating to each robbery. I would hold, however, that the charges alleging the use of a firearm in the commission of the unlawful confinement should have been stayed given the convictions on the armed robbery charges. In my view, entering convictions on both offends the Kienapple principle.

6In light of my holding that the use of the firearm charges should be stayed, there is no need to address the appellant’s argument that the combination of the mandatory minimum penalties for armed robbery and using a firearm in the commission of an indictable offence for charges arising out of the same incident results in cruel and unusual punishment, contrary to s. 12 of the Charter of Rights and Freedoms.

7Although I would stay the charges of using a firearm in the commission of an unlawful confinement and thereby eliminate the three one-year consecutive sentences imposed for those offences, I agree with the Crown’s contention that, even if those charges are stayed, sentences totalling eight years’ imprisonment were appropriate. The appellant was convicted of a number of very serious charges. Apart from the minimum sentences imposed on the three charges of using a firearm in the commission of an unlawful confinement, the applicable mandatory minimum penalties required a sentence of at least five years.¹ I would vary the sentences imposed on the armed robbery convictions to maintain the total sentence imposed by the trial judge.

II The Facts

8A chart outlining the charges, grouped by location and listed chronologically, is set out below. A summary of the relevant facts follows:

SUMMARY OF GUILTY PLEAS AND SENTENCE

Count	Date	Place	Offence	Section	Sentence
1	Oct.6/08	534 Mutual St.	B&E	348(1)(b)	suspended sentence
2	Oct.15/08	Orleans Sportsplex	B&E	348(1)(b)	suspended sentence
7			Theft Over	334(a)	suspended sentence
11			Conspiracy	465(1)(c)	suspended sentence
12	Dec.2/08	Mac’s Convenience Store	Robbery	344(1)(b)	4 years concurrent
15			Use Imitation Firearm	85(2)	1 year consecutive
16	Dec.8/08	Food Basics Grocery Store	B&E	348(1)(b)	suspended sentence
17			Forcible Confinement	279(2)	suspended sentence
21			Robbery with Firearm	344(1)(a.1)	4 years concurrent
23			Use Firearm*	85(1)	1 year consecutive
34			Conspiracy	465(1)(c)	suspended sentence
35	Dec.22/08	Food Basics Grocery Store	B&E	348(1)(b)	suspended sentence
36			Forcible Confinement	279(2)	suspended sentence
39			Robbery with Firearm	344(1)(a.1)	4 years concurrent
41			Use Firearm*	85(1)	1 year consecutive
50			Conspiracy	465(1)(c)	suspended sentence
51	Jan.8/09	Independent Grocer Store	B&E	348(1)(b)	suspended sentence
52			Forcible Confinement	279(2)	suspended sentence
58			Disguise with Intent	351(2)	suspended sentence
59			Use Firearm*	85(1)	9 months consecutive**
68			Point Firearm	87(2)	suspended sentence
74			Conspiracy	465(1)(c)	suspended sentence
75			Robbery with Firearm	344(1)(a.1)	4 years concurrent
77	Mar.2/09	355 Gilmour St.	Conspiracy (B&E)	465(1)(c)	suspended sentence

• These charges were amended to using a firearm in the commission of the indictable offence “under section 279(2)”. ** The one year sentence was reduced by three months for credit for time served prior to the appellant’s release on bail.

A. October 6, 2008 Break and enter

9Brian Henry and Jonathan Lascelles broke into a garage that had been converted into a home office. Several items were stolen, including a 308 pump action rifle and welding tanks. The appellant did not enter the site of the break-in, but remained in the getaway van, acting as a lookout. The van was used to remove the stolen property from the site of the break-in. Some of the stolen property, including the rifle, was used in subsequent robberies.

B. October 15, 2008 break and enter

10At about 5:00 a.m. on October 15, 2008, Henry and Lascelles entered the Orleans Sportsplex by breaking a window. Both were armed, one with a pipe and the other with a baseball bat. They bound the custodian with duct tape and proceeded to look for cash. Cash boxes and two small safes were found containing about $6,000. An attempt to access an automated teller machine by cutting into it with the acetylene torches that Henry and Lascelles had brought with them proved unsuccessful. Henry and Lascelles took the custodian’s car keys before they fled the scene.

11During the break-in at the Sportsplex, the appellant waited outside in the vehicle acting as a lookout. He picked Henry and Lascelles up when they exited the Sportsplex and drove them from the scene.

C. December 2, 2008 robbery

12On the evening of December 2, 2008, Henry and the appellant were driving around looking for a store to rob. Henry entered a convenience store wielding an imitation style pellet pistol. He grabbed a female customer and made her remain inside the store. He also ordered a second customer to turn away from him. Henry pointed the imitation revolver at the clerk and demanded money. The clerk turned over $120 from the cash drawer. He demanded the money in the safe, but the clerk explained he could not open the safe. Henry fled the store. The appellant was waiting for him in the getaway car. The appellant had been keeping watch while Henry was in the store. When Henry entered the car, the appellant drove away and Henry changed into clothing that had been placed in the trunk of the vehicle.

13It is noteworthy that this robbery, unlike the three described below, did not involve the use of a firearm and therefore did not attract a four-year mandatory minimum penalty. The offence did, however, involve the use of an imitation firearm which led to a conviction under s. 85(2) of the Criminal Code and a mandatory minimum one-year consecutive penalty. I do not understand the appellant to challenge either the constitutionality or the fitness of the one-year consecutive sentence imposed on that charge.

D. December 8, 2008 armed robbery

14This is the first of the three incidents that gave rise to the appellant’s convictions on charges of robbery with a firearm, which carries a four-year minimum sentence of imprisonment; unlawful confinement; and using a firearm in the commission of that confinement, which carries a one-year consecutive minimum sentence of imprisonment. Under the relevant sentencing provisions, the appellant had to be sentenced to at least five years’ imprisonment for the offences arising out of each of these three robberies.

15The appellant argues that only the conviction on the charge of robbery with a firearm should stand and that the other two charges should have been stayed under the Kienapple principle. The facts underlying the offences are potentially significant to the application of the Kienapple principle. It is best to quote the relevant parts of the Agreed Statement of Facts filed on sentencing:

On the 8th of December 2008 at around 12:40 a.m., Brian HENRY and Matthew ROCHELEAU attended the Food Basics grocery store located at 1465 Merivale Road, Ottawa, Ontario. The target was the safe. The route to and from the store was pre-planned using Google Earth.

HENRY entered into the store through the roof hatch and let ROCHELEAU in through the rear door to the store after by-passing the door alarm connection. HENRY knew he could gain access from a previous trip to plan the robbery.

HENRY and ROCHELEAU hid in the compressor room until the employees working the overnight shift attended the lunch room. Employees Mr. Alister Head, Mr. Wolf Wright and Mr. Michael Rich were confronted by HENRY and ROCHELEAU both of whom were armed. HENRY with the 308 pump action rifle and ROCHELEAU with the imitation revolver style pellet pistol [sic]. The employees were forced to empty their pockets onto the table. Mr. Head was forced to duct tape Mr. Wright and Mr. Rich around the hands and feet. They were then taken to separate washrooms and duct taped to the stalls.

At this point Mr. Head was scared and advised HENRY and ROCHELEAU that he would co-operate with them to ensure that no one got hurt. Mr. Head informed them that he had the codes to the alarms and that there was a fourth employee, Mr. Shawn St. John, outside having a cigarette.

Mr. Head was forced to lure Mr. St. John into an area of the store where he could be confronted and controlled by HENRY. Mr. St. John was taken to the lunch room where he was duct taped and placed in the compressor room.

Mr. Head was taken to the cash office by HENRY and forced to deactivate the alarm. Mr. Head was then duct taped by HENRY and placed in the main office.

HENRY and ROCHELEAU then returned to their vehicle which was parked near the rear of the store. They collected tools in preparation to open the store safe. The tools included oxygen acetylene tanks and torches to cut into the safe.

After returning to the store HENRY and ROCEHEALU believed they saw unmarked police cars in the area and fled the area in the ROCHELEAU family van. When they left HENRY and ROCHELEAU left a rifle leaning on the fence behind the store.

After a period of time passed, Mr. Head fled through the front of the store and called the police. Officers arrived at the Food Basics and cleared the building. The store was processed by officers and a number of pieces of evidence were found.

HENRY was the driving force behind this robbery and the leader. HENRY directed ROCHELEAU as to what to do. ROCHELEAU did not speak very much during the robbery and followed HENRY’s orders. ROCHELEAU did not point the imitation pistol at any of the employees or touch them. The employees stated that neither HENRY nor ROCHELEAU [were] aggressive towards them.

HENRY and ROCHELEAU were wearing black balaclavas during the robbery and gloves to conceal their identities. They also communicated when not near one another using walkie-talkies with ear pieces in place.

Nothing was stolen from the Food Basics during this incident and the employees were not injured.

E. December 22, 2008 armed robbery

16This incident also resulted in convictions for armed robbery, unlawful confinement, and using a firearm in the commission of the offence of unlawful confinement. Once again, it is best to set out the relevant parts of the Agreed Statement of Facts:

On the 22nd of December 2008 in the early morning hours, Brian HENRY and Jonathan LASCELLE entered the Food Basics grocery store at 1465 Merivale Road, Ottawa, Ontario. The same store that was involved in fourth incident on the 8th of December 2008 [sic].

HENRY and LASCELLE entered the store through the roof hatch. Once inside they hid in the compressor room which is located adjacent to the lunch room.

At around 1:30 a.m. the overnight staff attended the lunch room for their first break. HENRY and LASCELLE who were both armed with firearms, a shotgun and the imitation style pellet pistol, confronted employees Mr. Michael Rich, Mr. Wolfe Wright, and Mr. Terry Thompson with their weapons drawn. They were all duct taped and secured in the washrooms. The employees were forced to empty their pockets.

Mr. Rich and Mr. Wright were also present during the fourth incident on the 8th of December 2008. They suspected the males were the same ones from the previous incident. Mr. Wright stated that HENRY asked who had gotten loose the last time.

Mr. Thompson observed that HENRY had a bag with bolt cutters in it and they took his car keys. HENRY used the bolt cutters to gain entry to one room in the store.

HENRY and LASCELLE attempted to by-pass the rear door alarm connection when they inadvertently triggered the alarm. Both HENRY and LASCELLE fled the Food Basics. HENRY and LASCELLE fled in the ROCHELEAU family van which they had driven to 1465 Merivale Road. Matthew ROCHELEAU fled from his look out position on Merivale Road in his own vehicle, a Hyundai Elantra.

ROCHELEAU was the lookout for this robbery and remained in his vehicle during the incident.

F. january 8, 2009 armed robbery

17This is the third incident giving rise to convictions for armed robbery, unlawful confinement, and using a firearm in the commission of unlawful confinement. The relevant portions of the Agreed Statement of Facts are set out below:

On the 7th of January 2008 or days earlier, Brian HENRY attended the Independent Grocer store at 1619 Orleans Boulevard, Ottawa, Ontario. During this time in the store during business hours HENRY was gathering information for an upcoming robbery. HENRY also stole several Independent Grocer uniforms before leaving.

On the 8th of January 2008 in the early morning hours, HENRY and Jonathan LASCELLE entered the Independent Grocer through the roof of the building and hid within the store. They were outfitted in the Independent Grocer uniforms stolen by HENRY the previous day.

At around 1:42 a.m. HENRY and LASCELLE left their hiding spot and rounded up the overnight employees. They were both armed with a shotgun and an imitation style revolver pistol. They were wearing balaclavas and gloves to disguise their identities.

Six employees were bound with zip ties and secured within the employee washrooms.

HENRY and LASCELLE went to search the various kiosks within the store including the postal outlet and photo shop. The cash office motion alarm and door contact system was defeated to allow access to the room without setting off any alarms.

A door contact near the rear loading door was compromised so the alarm would not go off when the door was opened. Matthew ROCHELEAU entered through this door. ROCHELEAU brought the oxygen acetylene torches into the store to allow HENRY and LASCELLE to cut into the safe. They decided that there was not enough time to cut into the safe.

The store keeps the cash flow tills at each cash register in preparation for the following day. HENRY and LASCELLE removed each cash tray from the register. HENRY and LASCELLE also took a number of computer components from the cash office and manager’s office. They believed they were taking surveillance footage from the security cameras. This was not the case. A grey safe was also taken but did not contain any money.

HENRY stole the keys from Mr. O’Donnell for his vehicle. His vehicle was driven to the rear of the store where it was loaded up with goods and driven away by one of the parties.

ROCHELEAU again was the driver for this robbery and acted as the look out. HENRY, LASCELLE and ROCHELEAU all communicated via walkie-talkies through headsets.

HENRY and LASCELLE carried the safe out to the van. ROCHELEAU used bolt cutters to cut through a fence to allow the safe to be put through the fence to be loaded into the ROCHELEAU van that was at the end of the street.

ROCHELEAU re-entered the store to assist HENRY and LASCELLE load the property into the vehicles. ROCHELEAU was wearing a black balaclava and gloves. LASCELLE passes him the Remington 12 guage shotgun from the 534 Mutual Street break and enter at one point and ROCHELEAU slings it over his shoulder before leaving the loading area.

G. March 2, 2009 Break and enter

18On March 2, 2009, the police apprehended the appellant loading a box into a van owned by his mother. He was in possession of various burglar tools. Further investigation determined that one of the adjacent houses had just been burglarized. The police arrested the appellant, but his accomplice, Henry, escaped. On questioning, the appellant admitted that he had committed the break-in. He made no mention of his accomplice or any other offences. He was released on bail.

H. the appellant’s co-operation with police

19About a week after his arrest on the break-in, the appellant returned to the police station with his mother. He gave the police a full statement describing in detail the various offences he had committed. He identified Henry and Lascelles as his accomplices. Investigation by the police confirmed the information provided to them by the appellant and led to the arrest of Henry and Lascelles. The appellant testified against both men who subsequently pled guilty and received lengthy jail sentences. It is unlikely that the crimes to which the appellant confessed would have been solved without his confession.

I. the appellant’s role in the offences

20When the appellant met Henry he was 22 years old and had no criminal record or any connection to the criminal underworld. He was naïve and came from a protective and loving family.

21The appellant quickly came under the influence and domination of Henry who espoused a rather bizarre world view. The appellant was very much the follower throughout the crime spree in which he was involved. He never directly assaulted or threatened any of the victims and never pointed a firearm or any other weapon at anybody.

III The Trial Judge’s Reasons for Sentence

22The trial judge rejected the argument that the forcible confinement charges and/or the companion use of a firearm charges should be stayed. In his view, there was no legal nexus between the offences that would justify the application of the Kienapple principle. The trial judge also rejected the argument that the combination of the mandatory minimum for armed robbery (four years) with the mandatory minimum for use of a firearm in the commission of an indictable offence (one year consecutive) breached s. 12 of the Charter.

23Although the trial judge held that the Kienapple principle did not preclude convictions on all the charges to which the appellant had pled guilty and rejected the appellant’s constitutional argument, he was alive to the many mitigating factors arising out of the appellant’s role in the offences and his personal circumstances. The trial judge eventually mitigated the total sentence imposed in three ways. First, he imposed the minimum sentences available for all offences that carried a mandatory minimum. Second, he made the sentences imposed on all the robbery charges concurrent to each other. Third, he did not impose custodial sentences on any of the break and enter related charges. In short, assuming the Kienapple principle had no application and the mandatory minimums were constitutional, the trial judge imposed the lowest sentence he could impose.

IV The Conviction Appeal

24This appeal engages the Kienapple principle, which provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence: Kienapple; and R. v. R.K. (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28. The Kienapple principle is designed to protect against undue exercise by the Crown of its power to prosecute and punish: R.K., at para. 29. It applies where there is both a factual and legal nexus between the offences: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480. The requisite factual nexus between the offences is established if the charges arise out of the same transaction, whereas the legal nexus is established if the offences constitute a single criminal wrong: R.K., at para. 32.

25More specifically, this appeal involves two potential applications of the Kienapple principle. The first potential application of the principle arises out of the robbery and unlawful confinement offences. The second possible application of the principle arises out of the offences of robbery with a firearm and use of a firearm in the commission of unlawful confinement.

26Notably, if the unlawful confinement convictions are stayed pursuant to Kienapple, then the conviction for using a firearm in the commission of unlawful confinement must be quashed. Without a conviction on the unlawful confinement charges, there can be no conviction on the charge of using a firearm in the commission of the confinement: R. v. Pringle, 1989 CanLII 65 (SCC), [1989] 1 S.C.R. 1645.

27Turning first to the convictions for forcible confinement, I do not believe that these convictions should be stayed pursuant to Kienapple. It is true that there is a factual nexus between the robbery and forcible confinement convictions. The robberies and forcible confinements occurred at the same time and place. They were motivated by a single, common objective. No significant intervening events severed the factual nexus between these convictions. In short, the offences arose out of the same transaction.

28I am not satisfied, however, that there is a sufficient legal nexus between the robberies and unlawful confinement convictions. The offences of robbery and unlawful confinement protect different societal interests. The offence of confinement is intended to protect individual autonomy and bodily integrity. As described by the Supreme Court of Canada in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24, unlawful confinement involves the following:

The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was an unlawful confinement within s. 279(2)…

In discussing robbery as it relates to confinement, the court said, at para. 27:

Although every robbery involves an element of violence or threatened violence, the level of violence does not always occasion confinement of the significant duration required to satisfy s. 279(2)… Not all robberies involve the domination of the victim.

29On the facts as admitted in this case, there was domination and a coercive restraint of the victims of sufficient length to attract liability for confinement discrete from the liability for robbery. Nor, in my view, could the additional impact on the individual’s freedom of movement and bodily integrity be seen as simply incidental to the robbery. The different societal interests protected by the two crimes are sufficient to negate any legal nexus between the robberies and unlawful confinements. Accordingly, I would not set aside the appellant’s unlawful confinement convictions pursuant to Kienapple.

30However, even if the convictions for unlawful confinement stand, there remains the question of whether it offends the Kienapple principle to convict of both using the firearm in the robberies and using the firearm in the commission of the unlawful confinements. Was there more than one use of the firearm such that multiple convictions are appropriate?

31Applying the Kienapple principle once more, this time to the offences of robbery with a firearm and use of a firearm in the commission of unlawful confinement, the factual nexus is again satisfied. The offences arise out of the same transaction. They were committed at the same time and place, in furtherance of a single, common objective. No significant intervening events severed the factual connection between the offences.

32The legal nexus is also satisfied. In the circumstances of this case, the two offences – use of a firearm in committing robbery under s. 344 and use of a firearm in committing forcible confinement under s. 85 – do not promote different societal interests, protect different victims or prohibit different consequences. No distinction can be drawn in this case between the use of a firearm in committing robbery and the use of a firearm in committing forcible confinement. There are no distinguishing elements between the two offences. Because the offences as charged are legally indistinguishable, the appellant was effectively punished twice for the same criminal wrong.

33My conclusion with respect to the application of the Kienapple principle is consistent with the legislative history of ss. 85 and 344. Prior to 1977, there was no separate offence for using a firearm in the course of another criminal offence. The Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53, established such an offence, which could be charged in conjunction with any indictable offence. In 1995, the Firearms Act, S.C. 1995, c. 39, incorporated the aggravating feature of firearm use, and the associated mandatory minimum sentence, directly into the offence of robbery. At the same time, it excluded the application of the offence in s. 85 to robbery since firearm use was incorporated into the offence of robbery. This legislative history evinces an intention on the part of Parliament to have the offence of robbery subsume the aggravating feature of firearm use. It would be inconsistent with this intention to maintain the appellant’s conviction for firearm use based on the offence of unlawful confinement when the aggravating feature of firearm use has already been captured by the robbery conviction.

V The Sentence Appeal

34Given my conclusion on the conviction appeal, it is unnecessary to consider the appellant’s constitutional challenge to the combined, consecutive sentences prescribed by ss. 85 and 344 of the Criminal Code.

35However, notwithstanding the disposition of the conviction appeal, I would vary the appellant’s sentences on the armed robbery convictions and impose concurrent seven-year sentences on each of these counts. These are serious offences which, as discussed, include the aggravating feature of firearm use. They carry a maximum sentence of life imprisonment. Having regard to the circumstances of these offences and the mitigating factors identified by the trial judge, the total sentence imposed – eight years less three months’ credit for time served – remains appropriate and fitting.

VI Conclusion

36For these reasons, I would set aside the appellant’s convictions for using a firearm in the commission of an unlawful confinement, but maintain the total sentence of seven years, nine months’ imprisonment imposed by the trial judge.

Footnotes

1. 1The armed robbery counts (Counts 21, 39, and 75) carried mandatory minimum penalties of four years. The charge of using an imitation firearm in the commission of an indictable offence carried a mandatory minimum of one year consecutive, for a total of five years.