Court of Appeal for Ontario

Date: 2019-02-28 Docket: C65049 Judges: Doherty, Benotto and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Leon McIntyre Appellant

Counsel

Breana Vandebeek and Christopher Rudnicki, for the appellant

Carmen Elmasry, for the respondent

Hearing and Appeal

Heard: February 25, 2019

On appeal from: The sentence imposed on December 2, 2016 by Justice S. Akhtar of the Superior Court of Justice, with reasons reported at 2016 ONSC 7498.

Reasons for Decision

Introduction

[1] This is a sentence appeal. The appellant received a "global" sentence of six years for a number of offences including robbery with a restricted firearm. That offence carries a minimum sentence of five years.

[2] At the end of oral argument, the court advised counsel that the appeal would be dismissed with reasons to follow. These are our reasons.

Facts

[3] We need not set out the facts in any detail. The appellant and another person, a young offender, accosted the victim outside of his home on an early summer evening. They had decided to steal the victim's car.

[4] The victim was working on the car when he was approached by the appellant and his accomplice. The victim's young son was with him.

[5] The appellant was armed with a loaded handgun. A struggle ensued. The appellant pointed the loaded handgun at the victim. He grabbed the car keys and struck him across the face with the gun knocking the victim unconscious for a few moments. The victim needed 13 stitches to close the head injury and another 2 to his hand.

[6] The appellant and the accomplice took the victim's car and fled the scene. They were arrested nearby after a high speed chase.

[7] At the time of this incident, the appellant was under a court order prohibiting him from possessing any firearms.

Grounds of Appeal

[8] The appellant advances essentially three grounds of appeal. He argues that the mandatory five year minimum in s. 344(1)(a)(i) violates s. 12 of the Charter and should be struck down. The appellant also submits that the trial judge erred in failing to give the appellant enhanced credit for his pre-sentence custody in light of the conditions in the detention centre. Finally, the appellant submits that the trial judge erred in principle by failing to give adequate weight to the personal circumstances of the appellant in the years after he came to Canada and in failing to give adequate effect to the restraint principle as applied to the sentencing of young first offenders.

The Constitutional Claim

[9] The appellant does not argue that the five year minimum sentence is grossly disproportionate as applied to him. He submits, however, that it is grossly disproportionate having regard to reasonable hypotheticals.

[10] The case law is against the appellant's constitutional claim. In R. v. MacDonald, [1998] O.J. No. 2990, this court upheld the mandatory four year minimum sentence on a charge of robbery with a firearm (s. 344(1)(a.1)). In our view, the analysis in MacDonald is equally applicable to the five year minimum imposed for robbery with a prohibited or restricted firearm under s. 344(1)(a)(i).

[11] The holding in MacDonald is consistent with case law from other provinces involving minimum penalties for the commission of robbery with a firearm: see R. v. McIvor, 2018 MBCA 29; R. v. LaPierre, 123 C.C.C. (3rd) 332; R. v. Wust, 125 C.C.C. (3rd) 43. McIvor is particularly germane as it applies the reasoning in MacDonald to uphold the five year mandatory minimum for the offence of robbery with a restricted firearm.

[12] The appellant submits that this court should not follow MacDonald because MacDonald was decided at a time when the reasonable hypothetical methodology used to analyze a s. 12 claim was undeveloped. The appellant submits that more recent Supreme Court of Canada jurisprudence, and in particular R. v. Nur, 2015 SCC 15 provides a clearer indication of how reasonable hypotheticals should be employed in the s. 12 analysis.

[13] We do not read Nur as changing the reasonable hypothetical analysis in any way. Indeed, Chief Justice McLachlan for the majority was at some pains to make it clear that the s. 12 inquiry based on reasonable hypothetical was well entrenched in that court's case law and in her view, workable as it stood: see Nur at para. 47-65. Nur confirmed the reasonable hypothetical approach developed in the previous case law. This court followed that approach in MacDonald: at para. 16.

[14] Next, the appellant argues that MacDonald is distinguishable because MacDonald upheld the constitutionality of the four year minimum based on the availability of credit for pre-sentence custody at a 2:1 ratio in appropriate cases to reduce the mandatory minimum. The appellant submits that 2:1 credit is no longer available for pre-trial custody rendering the result in MacDonald open to doubt.

[15] MacDonald did not turn on the quantum of the credit available for pre-trial custody. The issue in MacDonald as it related to pre-trial custody was whether any credit could be given for pre-trial custody if that credit would reduce a sentence below the mandatory minimum. Some courts had held that no credit could be given. In MacDonald, this court acknowledged that if no credit could be given for pre-sentence custody, the mandatory minimum penalties for robbery with a firearm were in constitutional jeopardy. However, the court held that credit be given for pre-trial custody under the generally applicable provisions in respect of pre-trial custody found in the Criminal Code even if that credit reduced the sentence below the mandatory minimum: see MacDonald at para. 65, 83. The constitutional outcome in MacDonald did not turn on the availability of 2:1 credit for pre-trial custody.

[16] The appellant cannot distinguish MacDonald. In our view, the analysis in MacDonald applies here. Like the Manitoba Court of Appeal in McIvor, we are satisfied that the minimum penalty in s. 344(1)(a)(i) is constitutional.

Did the Trial Judge Err in Failing to Give Additional Credit for Pre-Sentence Custody?

[17] The trial judge gave the appellant credit on a 1.5:1 ratio for his lengthy pre-sentence incarceration. The appellant argued that in the circumstances in which he was incarcerated, he should receive enhanced credit. The appellant pointed to the number of "lock downs" at the institution and the numerous occasions on which inmates were "triple bunked".

[18] This argument was made before the trial judge. The trial judge accurately summarized the evidence relating to the jail conditions and acknowledged that in law he could give enhanced credit for harsh conditions during pre-trial custody.

[19] In declining to give enhanced credit, the trial judge described the actual impact of the conditions on the appellant as "unclear" on the evidence. He also noted that the appellant had compiled a significant number of misconduct findings while in custody awaiting trial. The trial judge ultimately found that having regard to all of the factors relevant to the appellant's pre-sentence incarceration, enhanced credit was not appropriate.

[20] We see no reason to interfere with the trial judge's exercise of his discretion. The trial judge was alert to the evidence and the applicable legal principle. The fact that he was not prepared to accept the appellant's assertions concerning the impact of the conditions on him at face value is no reason to decline to defer to the trial judge's assessment.

Did the Trial Judge Err in Failing to Consider Certain Mitigating Factors on Sentence?

[21] The appellant was just over 18 years old when he committed these offences. He had no prior criminal record as an adult. The offences were, however, very serious. The robbery involved significant violence and the use and possession of a loaded hand gun. It is also significant that the appellant was under a weapons prohibition at the time of the offence. That prohibition had been imposed only two months before the appellant committed these offences.

[22] The trial judge recognized that in sentencing young offenders, individual deterrence and rehabilitation are the primary objectives. He also recognized, however, as this court has repeatedly held, that crimes involving serious violence require emphasis on denunciation and general deterrence no matter the age of the offender. Nothing in the trial judge's reasons suggests a failure to take the mitigating factors stressed by the appellant in this court into account. Nor is the total sentence imposed of six years manifestly excessive. We are not satisfied that the trial judge fell into any error in principle in imposing the sentence he did.

Disposition

[23] The appeal is dismissed.

"Doherty J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."