DATE: 20040227

DOCKET: C31278

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE JJ.A. and CAVARZAN J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant/Appellant

• and -

MITCHIEL MCARTHUR

Respondent

Howard Leibovich for the applicant/appellant

Gregory Lafontaine for the respondent

Heard: February 17, 2004

On appeal from the sentence imposed by Justice H.S. LaForme, of the Ontario Court of Justice, sitting with a jury, dated December 14, 1998.

DOHERTY J.A.:

OVERVIEW

[1] After a lengthy trial by judge and jury, the respondent was convicted of several serious crimes, including four counts of attempted murder. The Crown brought a dangerous offender application and argued in the alternative that the respondent should be sentenced to life imprisonment. The trial judge dismissed the dangerous offender application and concluded that sentences totalling 23 years were appropriate. After giving the respondent double credit for four years and three months in pre-sentence custody (eight and a half years)[^1], the trial judge imposed sentences totalling 14 ½ years.

[2] The Crown appealed the dismissal of the dangerous offender application and the sentences imposed. The respondent appealed the convictions. The Crown abandoned its appeal from the dismissal of the dangerous offender application and the respondent abandoned his appeal from the convictions. The Crown’s sentence appeal proceeded.

[3] On the sentence appeal, the Crown submitted that life imprisonment was the only appropriate penalty. At the conclusion of oral argument, the court indicated that leave to appeal sentence was granted and that the sentences would be varied to life imprisonment. These are the reasons for that disposition.

THE OFFENCES

[4] On October 20, 1994, the respondent and an accomplice entered the Bank of Montreal in the small town of Port Perry, Ontario. The respondent was armed with a large black rifle and the accomplice had a handgun. The respondent began shouting and demanding the cash. When the bank manager would not provide the combination to the safe, the respondent shot him in the leg. The manager then provided the combination. The respondent and his accomplice took the money and left the bank.

[5] As the respondent and his cohort fled the bank on foot, P.C. Ellis and his partner, P.C. McConkey arrived in their vehicle in response to a 911 call that had been made by one of the bank employees. The respondent opened fire, shooting Ellis in the head and face as the police vehicle approached. The bullet fragments came to rest near Ellis’s brain. The respondent also shot McConkey in the left side of the face, blowing off part of his lower jaw before Officer McConkey could exit the vehicle.

[6] A third police officer, Detective Mooy, stationed himself behind a pillar hoping to get an opportunity to return fire. The respondent fired at Mooy’s chest, striking the officer in the arm and shattering the bone in two places.

[7] The respondent fired some 30 rounds into the crowded plaza area outside of the bank. One of the bullets struck Debra Taylor who was in her office across the street from the bank. The bullet hit her in the back and arm. Bullet fragments pierced her heart and came to rest near her lungs.

[8] The respondent and his accomplice fled the scene. About a half an hour later, they broke into the residence of the Pierces, an elderly couple. They held Mrs. Pierce prisoner awaiting the return of her husband. In the course of this confinement, they waved a gun in Mrs. Pierce’s face and threatened to use it. When Mr. Pierce arrived home, the respondent and his accomplice forced Mr. Pierce at gunpoint to drive them to their car parked in a nearby hospital parking lot. Mr. Pierce was then released. When Mr. Pierce was forced to leave his home with the respondent and the accomplice, Mrs. Pierce believed that she would never see her husband alive again.

[9] The accomplice has not been brought to justice. The guns used by the respondent and the accomplice and the money stolen from the bank have not been recovered.

[10] In his reasons for judgment, the trial judge indicated that the respondent had turned Port Perry “into a war zone” and inflicted “a reign of terror on the citizens of Port Perry”. He described the shooting of the bank manager as “cold and calculated”. He observed that those in the bank feared for their lives and were terrorized by the respondent’s conduct.

[11] The trial judge’s description of the events outside the bank bears repeating:

Outside the bank Mr. McArthur and his accomplice were encountered by the arrival of police officers who were responding to the robbery. It’s at this time that Mr. McArthur, and again I’m satisfied that the evidence totally supports this, opened fire on the police officers with a Steyr-Aug military assault rifle. This weapon is an Austrian made semi-automatic military weapon that holds a 30 round magazine that fires its bullets as fast as the trigger can be pulled. Expert evidence on this was that the purpose for which the weapon is manufactured is to kill, and that the bullets travel at three times the speed of sound, and are devastating when they hit. The evidence is clear the magazine was emptied at the police officers by Mr. McArthur. Further, I am satisfied the evidence further establishes that Mr. McArthur was shooting at the heads of the officers, and that he intended to do so. The expert’s evidence of devastation turned out to be exact. Constables Warren Ellis and Mark McConkey, and Detective Paul Mooy, suffered serious and permanent injuries as a result. Again, their impact statements bear witness to the extent of both the physical injuries and the understandable emotional problems that followed and to some extent continue.

As if tragedy wasn’t enough, one of the bullets from Mr. McArthur’s killing tool found its way into the office of an innocent civilian doing nothing more than working late in her honest efforts to make a living. She too was nearly killed, and her physical and mental well-being has been permanently altered.

[12] The trial judge imposed the following concurrent sentences arising out of the bank robbery.

• the aggravated assault on Mr. Knight, the bank manager – 8 years (count 5);

• the robbery – 14 years (count 6);

• the use of a handgun during a robbery – 5 years (count 7);

• being masked while committing a robbery – 3 years (count 10);

• use of a rifle during a robbery – 5 years (count 11); and

• possession of a 30 round magazine – 3 years (count 12);

[13] The trial judge imposed concurrent sentences of 17 years on each of the attempted murder charges (counts 1 to 4). These sentences were made concurrent to the sentences imposed on the charges arising out of the bank robbery.

[14] The trial judge imposed the following sentences for the offences involving the Pierces:

• forcible confinement of Mrs. Pierce – 6 years (count 13);

• kidnapping of Mr. Pierce – 6 years (count 15);

• use of a weapon to confine the Pierces – 5 years (count 16); and

• being masked during a kidnapping – 3 years (count 17);

[15] The sentences on the counts arising out of the confinement and kidnapping of the Pierces were made concurrent to each other, but consecutive to the other sentences.

[16] As indicated above, the sentences imposed by the trial judge totalled 23 years, he then, however, reduced those sentences by 8 ½ years to take into account 4 years and 3 months pre-sentence custody.

THE IMPACT ON THE VICTIMS

[17] The victims of the respondent’s violence have suffered devastating physical and emotional consequences. Mr. Knight, the bank manager, underwent many weeks of extensive physiotherapy and still has difficulty with his knee. At least two of the other individuals who were in the bank were terrorized and continue to suffer significant emotional distress.

[18] P.C. Ellis, the first officer who was shot, underwent six hours of brain surgery. He was off duty for five months and after returning to duty suffered from anxiety believing that he would be shot again. He continues to suffer migraine headaches.

[19] P.C. McConkey, the second officer shot by the respondent, was airlifted to hospital in Toronto. His jaw was wired shut for five weeks and he had great difficulty eating or sleeping. Complications developed and he had to undergo further surgery in January 1995. He has also undergone a long course of dental treatment to prepare for dental implants. In 1996, he underwent plastic surgery to repair scarring on his face. At the time of sentencing, he continued to be in discomfort 24 hours a day. He took medication daily. Officer McConkey could only eat small portions of food that sometimes have to be cut up for him. It is anticipated that he will need more surgery.

[20] Detective Mooy, the third officer shot by the respondent, needed three operations to repair the damage to his arm. He underwent two years of intensive physical therapy. For some time he could not feed or bathe himself. He has been able to return to work but there is still some deficit in his co-ordination and his arm is significantly disfigured.

[21] Ms. Taylor, the realtor who was shot by the stray bullet fired by the respondent, has suffered incredibly as a result of the respondent’s actions. She lost the use of her right arm for four months and required extensive physiotherapy. During her convalescence, Ms. Taylor became addicted to prescription painkillers. Although she had a thriving business prior to the shooting, she was unable to sell real estate for almost two years after she was shot by the respondent. Eventually, Ms. Taylor had to declare bankruptcy and spent time living in a women’s shelter in Oshawa. She became dependent upon welfare.

[22] Ms. Taylor was hospitalized for post-traumatic stress syndrome and attempted suicide on several occasions. In May 1995, while driving her vehicle, Ms. Taylor heard a radio broadcast which discussed the respondent and the Port Perry robbery. She became so upset that she drove her vehicle into the back of a parked car. Ms. Taylor required hospitalization. She eventually had a complete mental breakdown and had to be cared for by her brother.

[23] In December 1996, Ms. Taylor slowly began to rebuild her life. By the time of sentencing in December 1998, Ms. Taylor was still suffering from periodic pain, a weak right arm, and distorted hearing. She was, however, back at work as a real estate agent.

[24] In her victim impact statement, Mrs. Pierce indicated that when the respondent and his accomplice broke into her home, she experienced a shock unlike anything she had ever experienced. When they took her husband, she believed that she would never see her husband alive again. Mrs. Pierce and her husband have since relocated.

THE OFFENDER

[25] The respondent was 47 years old at the time of sentencing. He is single and has no children.

[26] The respondent’s criminal record consists of 134 criminal convictions beginning in 1968 when he was 17 years of age and continuing without interruption to the commission of these offences. Between 1968 and 1973, the respondent was convicted of approximately 100 different offences, including many break-ins. Most of the offences were property related. He received his first penitentiary sentence in June of 1973.

[27] The respondent’s criminal activities have become increasingly violent since 1973. He was convicted of armed robbery in August 1973 and was convicted of five more armed bank robberies before he committed these offences in October 1994. In June 1987, the respondent received sentences totalling 12 years for three of the armed robberies and related offences. The respondent was released in June 1994 after serving some seven years. He committed these offences about three months after his release.

[28] The trial judge heard evidence concerning some of the respondent’s prior offences. His conviction for assault causing bodily harm in 1978 involved the shooting of a police officer who was attempting to arrest the respondent. The respondent was charged with aggravated assault, but convicted of assault causing bodily harm on the basis that he had not intentionally fired the gun at the police officer.

[29] In 1990, the respondent, while he was in the penitentiary, wrote a book about his criminal adventures entitled, “I’d Rather Be Wanted than Had”. He also gave various interviews promoting the book. In his book and interviews, he made it clear that in his mind the officer he shot was to blame for his own injury. He said:

There’s been no need to disarm. He could have just let me go. But he wanted to play hero.

[30] The 1986 conviction for armed robbery arose out of a carefully planned robbery of a bank in Hepworth, Ontario in 1983. In the course of making their getaway, the respondent and his accomplice fired shots at a truck that was pursuing them. Luckily, no one was hurt, although a stray bullet almost struck an elderly lady standing in the doorway of her home. At the time of sentencing on this conviction, the respondent told the trial judge that he was going to “put an end to my life of crime”.

[31] The three armed robberies for which the respondent was convicted in June 1987, occurred between November 1984 and January 1986 in western Canada. The respondent was armed while committing all of the robberies. No one was hurt.

[32] Dr. Steven Hucker, a psychiatrist, testified on the dangerous offender hearing. He had prepared a report under s. 752.1 of the Criminal Code. Dr. Hucker described McArthur as suffering from an anti-social personality disorder of long standing. He had a complete lack of concern for other people. The respondent also had a narcissistic personality. These personality features could be a predictor of violent recidivism, although not necessarily a strong predictor. Dr. Hucker testified that the best predictor of future behaviour was past behaviour. Dr. Hucker performed various tests in an attempt to quantify the risk of the respondent re-offending. He concluded that actuarially there was, at a minimum, a 44 percent risk that the respondent would re-offend in the next seven years in a violent manner. This rating was similar to that achieved by many other federal inmates.

[33] In his testimony, Dr. Hucker observed that McArthur’s criminal record was the reverse of what one would normally expect. His criminal activity was becoming more violent as he grew older. In Dr. Hucker’s opinion, the respondent’s criminal record showed an increasing resort to violence, an inability and refusal to control aggression and an indifference to the suffering of victims. According to Dr. Hucker, the respondent minimized the extent of his aggression and chose to portray himself as a “gentleman thief”.

[34] There was no indication that McArthur had benefited from any treatment or program that had been available to him. Dr. Hucker was also unaware of any treatment or program that could assist the respondent given his attitude. Dr. Hucker could only say, that like any other criminal, the respondent’s criminal activity would decrease at some point as he grew older. Dr. Hucker could not say when this would occur.

[35] The respondent is described as an intelligent person, although as the trial judge observed, he has never used that intelligence for anything other than “brutish criminal behaviour”.

THE MERITS OF THE APPEAL

[36] On a sentence appeal, this court must show deference to the sentence imposed by the trial judge. Appellate intervention is justified only where reasons for sentence reflect a material error in principle, or where the appellate court is satisfied that the sentence imposed is clearly excessive or inadequate: R. v. M.(C.A.) (1996), 1 S.C.R. 500; R. v. Rezaie (1996), 112 C.C.C. (3d) 97 at 102-103 (Ont. C.A.). That deference is well earned, where, as in this case, the trial judge’s reasons reflect a careful and thorough review of the factors relevant to the determination of the appropriate sentence.

[37] We are satisfied, however, that the reasons for sentence reveal a material error in principle. In rejecting the Crown’s contention that the respondent should be sentenced to life imprisonment, the trial judge said:

[I]n considering such a sentence, I must be mindful of the legal principle that a life sentence is always reserved for the worst offences committed by the worst of offenders. [Emphasis added.]

[38] The trial judge went on to limit the availability of a life sentence to offences that demonstrated “unusual features of brutality or cruelty or offences that were part of a violent pattern of behaviour which threatened the safety of others.”

[39] This court has rejected the “worst offence/worst offender” characterization as a necessary precondition to the imposition of a life sentence. In R. v. Mesgun (1997), 121 C.C.C. (3d) 439 (Ont. C.A.), the court upheld a life sentence imposed on a first offender who had attempted to murder his former girlfriend in a particularly brutal and savage manner. The court said at p. 443:

Moreover, it would, in our view, be unwise to straight jacket the sentencing process by requiring the maximum sentence be imposed only in a case of the worst offence committed by the worst offender. As Lamer C.J.C. said in R. v. M.(C.A.) [citation omitted]: ‘sentencing is an inherently individualized process’. This process is surely best served by an approach hallmarked by flexibility rather than rigidity.

[40] In Mesgun, the court concluded that the nature of the offence fully justified a life sentence even though the offender could not be characterized as “the worst offender”.

[41] The danger of the worst offence/worst offender approach to the sentencing of offenders like the respondent is that it moves the focus away from a detailed examination of the specific offences committed by the specific offender to a comparison of the offender’s crimes and background with those of the hypothetical worst offender who has committed the hypothetical worst offence. Human behaviour being what it is, it is always possible to imagine a worse case.

[42] Having found a material error in principle in the trial judge’s reasons, it falls to this court to determine a fit sentence: R. v. Rezaie, supra, at 103.

[43] Section 718 of the Criminal Code identifies the fundamental purpose of sentencing as being:

To contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions …

[44] That purpose is achieved by blending the various objectives of sentencing identified in s. 718. The proper blending of those objectives depends on the nature of the offence and the nature of the offender. In this case, the objectives of denunciation and specific deterrence must dominate almost to the exclusion of the other objectives recognized in s. 718.

[45] Section 718.1 also directs that the sentence imposed must fit the offence and the offender. Sentences that may otherwise serve the fundamental purpose of sentencing and the objectives underlying that purpose cannot be justified unless they are proportionate to the gravity of the offence and the offender’s personal culpability.

[46] In determining whether life imprisonment is a fit sentence, one must look at the entirety of the respondent’s criminal conduct. The bank robbery and related shooting, the carnage in the plaza outside of the bank and the confinement of the Pierces, considered individually were all very serious crimes of violence involving the use or threatened use of deadly force against completely innocent victims. Considered in isolation from each other, all would merit lengthy penitentiary terms. The proportionality principle demands that the sentences ultimately imposed reflect the gravity of all of the offences and the respondent’s responsibility for all of the offences. Totality considerations may of course moderate the cumulative sentence in appropriate cases: Criminal Code s. 718.2(c).

[47] Without diminishing the seriousness of any of the crimes committed by the respondent, it can be safely said that the four attempted murder convictions are the most serious crimes. Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

[48] A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term. These attempted murders are particularly egregious. They occurred in the course of the respondent’s flight after committing serious crimes. There were four victims, all of whom were seriously hurt and continue to suffer significant adverse effects from the shooting. The respondent used a particularly dangerous weapon which on the evidence was “manufactured to kill”. The shootings were obviously the result of a considered decision by the respondent to use deadly force if he met any resistance from the police. These shooting were the product of a careful plan implemented with deadly detachment and efficiency. Only sheer good luck foiled the respondent’s desire to kill those who would try to stop him.

[49] As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm’s way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function: R. v. Forrest (1986), 15 O.A.C. 104 at 107 (C.A.).

[50] The murder of a police officer acting in the execution of his duty attracts the highest penalty our law permits: Criminal Code s. 231(4)(a). The respondent did everything within his power to commit that crime.

[51] Thankfully, the use of deadly force against police officers by those seeking to avoid capture is relatively rare in Ontario, as is the use of deadly force by police officers against fleeing felons. Counsel could not recall any other case in this Province where an individual seeking to avoid capture attempted to murder and seriously wounded three police officers. We are also unaware of any such case. We cannot think of a more serious case of attempted murder than the shooting of these three police officers.

[52] The seriousness of all of the offences committed by the respondent, particularly the attempted murders, and his high level of personal culpability in each and every one of these offences points strongly to life imprisonment as the appropriate sentence.

[53] A consideration of the offender’s background and character strengthens the argument in favour of a life sentence. The respondent is a lifetime incorrigible criminal. Since the mid-seventies, he has been a violent criminal. His six prior armed robberies involved the use of a loaded weapon. In one case, the weapon was fired at a pursuing vehicle. He has used a weapon in the past to resist arrest leading to a serious injury to the arresting officer. In the almost 20 years leading up to these offences, the respondent has either been in jail serving sentences for violent crimes or at large committing violent crimes. There is no good reason to think that he will not commit further violent crimes if given the opportunity to do so. He is a dangerous person.

[54] Nothing in the material before the trial judge suggests any factors which could reasonably mitigate the bleak picture painted by the respondent’s criminal background and the circumstances of these offences. He was motivated entirely by greed. He shows no remorse and no insight into the harm done to his victims. His book written in 1990 and public statements made in connection with the book suggest moral values and a sense of personal entitlement having much more in common with a Hollywood movie script than the realities of our community. Clearly, the respondent is ready to commit violent crimes to get money and is willing to kill those who try to stop him.

DISPOSITION

[55] As indicated at the conclusion of oral argument, leave to appeal is granted and the sentences are varied to life imprisonment. To effect that result, we vary the sentences on each of the attempted murder counts to life imprisonment. By law, those sentences must run concurrently. We would not alter the length of the sentences imposed on the other charges, however, again by operation of law, those sentences must run concurrently with the life sentences imposed on the attempted murder charges.

RELEASED: “DD” “FEB 27 2004”

“Doherty J.A.”

“S.T. Goudge J.A.” ”Cavarzan J. per Doherty J.A.”

[^1]: On appeal, the Crown argued that most of the pre-sentence incarceration arose out of the revocation of the respondent’s parole and that he should not have received credit for that part of his pre-sentence incarceration. The Crown sought to adduce fresh evidence in support of this contention. Given our disposition of the appeal, we need not address this submission.