CITATION: R. v. Fragoso, 2008 ONCA 483
DATE: 20080618
DOCKET: C42722-C42736
COURT OF APPEAL FOR ONTARIO
DOHERTY, JURIANSZ JJ.A. and KENT J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
CARLOS FRAGOSO
Appellant
Christopher Hicks and Catriona Verner for the appellant
James K. Stewart and Daniel Guttman for the respondent
Heard: June 10, 2008
On appeal from the convictions entered by Justice Harris, of the Superior Court of Justice, sitting with a jury, on March 18, 2004 and April 19, 2004 and an application for leave to appeal and, if leave is granted, an appeal from the sentence imposed on July 26, 2004.
BY THE COURT:
I. INTRODUCTION
[1] The appellant was charged with five armed robberies, all of which occurred over a six week period in central-east Hamilton near where the appellant lived. On a pre-trial motion, the trial judge granted severance and directed that the five robbery charges be divided into two indictments. One indictment contained the charges relating to three robberies that occurred between October 2 and 14, 1999. The trial judge ruled that these three robbery charges could be tried together as the evidence on each count was admissible on the other counts. This trial proceeded first. The appellant did not testify. The jury convicted the appellant on all three robbery charges and several related offences. The appellant was also charged with assaulting a police officer. This charge arose out of an altercation between the appellant and a plainclothes police detective at the time of the appellant’s arrest. The jury acquitted on the charge of assaulting a police officer and convicted on the included offence of assault simpliciter.
[2] The second trial on the two remaining robbery charges and several related offences proceeded immediately after the completion of the first trial. The trial judge held that the evidence with respect to these two charges was not admissible as similar fact evidence in respect of the other three robbery charges or in respect of each other. These robberies occurred in August and September of 1999. The appellant did testify at this trial. He denied any involvement in either robbery. The jury convicted on both robberies and the related charges.
[3] The trial judge imposed a life sentence on one of the robbery charges and several concurrent sentences of fixed duration.
[4] The appellant appeals conviction, seeks leave to appeal sentence, and if leave is granted, appeals sentence.
[5] Counsel for the appellant has raised several grounds of appeal. Some of the grounds of appeal apply to both trials, some apply to the first trial only, and others apply to the second trial only. In addressing the grounds of appeal, we follow the format set out by counsel for the appellant in their factum.
II. THE CONVICTION APPEAL
A. The Global Issues
[6] There are two issues that apply to both trials. First, the appellant submits that he was denied his right to trial within a reasonable time as guaranteed by s. 11(b) of the Charter and that a stay of proceedings should be entered on all charges. Second, the appellant submits that the trial judge should have ruled that none of the evidence pertaining to any of the robberies was admissible in respect of the other robberies; therefore, he should have severed all five robbery charges from each other.
(i) The Section 11(b) Claim
[7] The appellant was arrested October 14, 1999, the day of the last of the five robberies. He was not sentenced until almost five years later on July 26, 2004. Clearly, the passage of some fifty-six months engages the analysis required by s. 11(b) of the Charter.
[8] The trial judge heard a lengthy s. 11(b) motion prior to trial. He conducted a thorough and careful review of the relevant factors. Counsel for the appellant candidly concedes that he cannot quarrel with the trial judge’s factual findings on the motion, the trial judge’s characterization of the various time intervals, or the inferences that the trial judge drew from his primary findings of fact.
[9] The trial judge carefully reviewed the pained progress of these charges through the criminal justice system. He ultimately found that of the fifty-six months that it took for these charges to pass through the trial system only sixteen could be attributable to the Crown. None could be attributed to any Crown misconduct. The trial judge concluded that the vast majority of the remaining forty months was attributable to the conduct of the appellant. This conduct included, but was not limited to, requests for adjournments on the first two trial dates and an indication that a guilty plea would be forthcoming (later retracted), which resulted in an adjournment on a third fixed trial date. This conduct is briefly canvassed below.
[10] The trial judge quite properly focused on the events after this case got to the Superior Court. It had moved through the preliminary inquiry stage with reasonable dispatch. When the matter first arrived in the Superior Court, it was anticipated that a seven day trial would be needed. Within three months, a trial date in July 2001 had been set. This date was about nine months after the matter arrived in the Superior Court.
[11] On this first trial date, the defence requested an adjournment. Counsel for the appellant specifically waived the appellant’s rights under s. 11(b) “from this date to the next trial date”. The validity of that waiver was questioned in the appellant’s factum. However, in oral argument counsel accepted that the waiver was an informed, valid waiver. We agree with that concession. Like the trial judge, we see no reason not to give full force and effect to the waiver.
[12] Although the appellant made several appearances in the months after the trial was adjourned, counsel did not set a second trial date until February 2002. The trial was set for two weeks in July 2002. Four days before the trial was to proceed, the defence requested another adjournment. Once again, counsel for the appellant waived his rights under s. 11(b) “from today’s date to the next trial date”. Like the appellant’s waiver a year earlier, this was an informed, unqualified, express s. 11(b) waiver of any time between July 2002 and the next trial date.
[13] About six weeks after the second trial date was lost, a third trial date of November 25, 2002 was fixed. The appellant appeared in court on several occasions before that trial date. As the trial date approached, it appeared that the appellant had decided to plead guilty. The trial date came and passed in anticipation of the appellant’s guilty plea. No plea was in fact entered, and shortly after the trial date had passed, the appellant changed his mind and decided that he would not plead guilty.
[14] The appellant’s change of heart precipitated a further delay to allow his lawyer to bring a motion to be removed from the record. The appellant eventually obtained new counsel in May 2003. A pre-trial was conducted in November 2003, and pre-trial motions were heard beginning in February 2004. The first of his two trials began in March 2004.
[15] Even the abbreviated summary of the relevant chronology set out above, belies the appellant’s submission that this case “got lost in the system” and was allowed to move at a snail’s pace because no one turned their attention to the need for a trial within a reasonable time. In fact, the appellant was given a trial date in July 2001, well within the constitutional time limits prescribed by s. 11(b). He chose to seek an adjournment of that trial date. He also chose, no doubt to ensure that he would get the adjournment, to waive any right to rely on the passage of time between the adjournment and the next trial date. As indicated in R. v. N.N.M. (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 at para. 55 (O.C.A.):
Section 11(b) of the Charter guarantees a person charged with an offence “the right to be tried within a reasonable time”. There is, therefore, no infringement of s. 11(b) where the state offers the accused a trial date within a reasonable time, and the accused refuses the offer and delays the proceeding further. In such a case, the accused’s right to a trial within a reasonable time has been protected.
[16] The appellant followed exactly the same course of action on a second occasion, once again using the waiver of his s. 11(b) rights to ensure that his trial would be delayed by the granting of a further adjournment.
[17] Counsel’s argument comes down to the claim that regardless of who is responsible for the delay in these proceedings, the delay was so inordinate that it must have infringed the appellant’s rights under s. 11(b). This submission misses an important distinction between delay that is excessive and potentially harmful to the administration of justice, and delay that results in the violation of an individual’s constitutional rights under s. 11(b).
[18] An accused cannot manufacture delay, using a waiver of his s. 11(b) rights as a to secure that delay, and then argue that the delay produced a breach of those very same constitutional rights that he waived to secure the delay. On the trial judge’s findings, that is exactly what the appellant is trying to do in this case. The trial judge observed:
During his stay in Superior Court, the accused was in court no less than thirty-seven times without complaint, directly or through his counsel, … During this time, he hired four lawyers, he adjourned three fixed trial dates, created two guilty plea dates without pleading and brought three different severance motions.
The conduct, the manoeuvres of the accused from the time he came into Superior Court was consistent with the delay strategy.
[19] Notably, the trial judge’s findings that the appellant deliberately sought to delay the proceedings were confirmed by information that came out in the sentencing proceedings. The appellant knew, given his record and the seriousness of the charges, that convictions for any of the offences would result in long jail terms. The Crown’s case was overwhelming on at least two of the robbery charges. The appellant did not want to go to the penitentiary because of certain enemies that he had there. He also knew that it was customary to give two-for-one credit for pre-trial incarceration. Persons in pre-trial incarceration are not held in the penitentiary. The appellant knew that the longer he could delay his trial thereby accumulating additional pre-trial incarceration with a two-for-one credit, the better his chances were to avoid an ultimate sentence to the penitentiary. That was his strategy. To suggest that the appellant’s attempts to manipulate the process should somehow be characterized as a violation of his constitutional rights is an affront to both common sense and the principles underlying the Charter.
[20] The s. 11(b) motion at trial was devoid of merit. So is this ground of appeal.
(ii) The Similar Fact Evidence/Severance Rulings
[21] As outlined above, the trial judge severed the five robbery charges into two groups. The first group included the three October robberies. The trial judge held that these robberies could be tried together as evidence pertaining to one was potentially admissible as similar fact evidence in relation to the other robberies.
[22] The appellant submits that while there were similarities in the circumstances surrounding the three robberies that were tried together, the trial judge erred in giving no weight to significant dissimilarities. Counsel contends that when these dissimilarities are factored into the evidentiary mix, the evidence does not come up to the high admissibility standard set out in R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.).
[23] The trial judge’s reasons reflect a full appreciation of the evidence and the applicable legal principles. His ruling that the evidence was sufficiently probative to warrant its admissibility as similar fact evidence is entitled to deference: R. v. Arp, supra.
[24] There were many similarities among the three robberies. Taken in combination, these similarities are capable of presenting a compelling argument that the three robberies were committed by the same person or persons. The robberies occurred within ten days of each other at three similar locations that were located close to each other in central-east Hamilton. The perpetrator’s modus operandi and the weapon carried by him in the three robberies were very similar to each other. A female accomplice was involved in all three robberies. There was no indication that the female accomplice was armed in any of the robberies.
[25] The dissimilarities relied on by the appellant are not really discrete factual issues; rather, they are features of the evidence that could detract somewhat from the force of the similarities relied on by the Crown. For example, while the Crown relies on the fact that the three robberies targeted small, single-employee, retail outlets as a similarity, the appellant points out that a different kind of business was carried out at each of the venues robbed and suggests that this is an important dissimilarity.
[26] The distinctions drawn by the appellant are relevant to the admissibility of the evidence and were no doubt put before the trial judge. However, the trial judge did not fall into reversible error by failing to advert to all of the evidentiary arguments for and against admissibility. No one suggested that the three robberies were identical. The trial judge properly focussed on the degree of similarity in analyzing the evidence to determine whether the Arp standard was met. We see no error in that analysis.
[27] The appellant also argues that the evidence in respect of the robbery at the Cumberland Variety should not have been admitted. Chronologically, this robbery was the second of the three robberies. Counsel contends that there was no evidentiary link connecting the appellant to that robbery. Absent that link, the Cumberland robbery could not be admitted as similar fact evidence in relation to the other two robberies: see R. v. Sweitzer (1982), 1982 23 (SCC), 68 C.C.C. (2d) 193 (S.C.C.).
[28] The appellant is correct in maintaining that there must be evidence connecting him to the Cumberland robbery before it can be used as evidence in respect of the other robberies. It is also fair to say that the evidence connecting the appellant to the Cumberland Variety robbery was not strong. No one identified the appellant as being involved in that robbery. The appellant was, however, arrested about four days after the Cumberland Variety robbery. He was in possession of a gun and a mask that were very similar to those used in that robbery. He was also in possession of cash and packages of wrapped, unopened cigarettes. The robber stole cash and cigarettes from the Cumberland Variety.
[29] The trial judge held that this evidence was sufficient to provide the necessary link between the appellant and the Cumberland Variety robbery, and on this ground he opened the evidentiary door to the similar fact evidence. In so holding, the trial judge appreciated that the potential value of this evidence was arguably weakened by the fact that on the Crown’s theory, the appellant was involved in another robbery on October 14, in which he also stole cigarettes and cash. He was entitled to find that the evidence provided the link between the appellant and the Cumberland Variety robbery. We would not interfere with that finding.
[30] The trial judge’s severance order was an exercise of his discretion. That order is entitled to deference on appeal. Having upheld the trial judge’s ruling on the similar fact evidence, there is no basis upon which to interfere with his decision that those three charges could be tried together.
[31] The trial judge’s decision to try the other two robbery charges together, even though he held the evidence on one was not admissible on the other, does not mean that his decision to refuse severance of these two counts amounted to an improper exercise of his discretion. Severance motions require a consideration of the broad interests of justice and not just the interests of the accused. Multiple trials and the potential for inconsistent verdicts are a genuine concern. It is not enough to convince this court that the trial judge could have severed these two counts; rather, the appellant must satisfy this court that the trial judge was obliged upon a proper consideration of the interests of justice to sever these two counts.
[32] We are satisfied that the trial judge was entitled to proceed with one trial on the two robbery counts even though the evidence of one was not admissible in respect of the other. The trial judge carefully and correctly instructed the jury to consider the evidence on each count separately. The appellant’s defence on this second trial – namely, that he did not commit either robbery and was targeted by the police because of his background – was in no way compromised by trying the two counts together.
B. GROUNDS OF APPEAL RELATING TO THE FIRST TRIAL
(i) The Alleged Improper Limitation of Counsel’s Use of the Identification of Miss “A” as the Female Perpetrator of the Cumberland Variety Robbery
[33] The robbery at the Cumberland Variety on October 10 was committed by a masked man armed with a double-barrelled gun. He was assisted by a female accomplice. The victim of that robbery was shown a photo line-up of females three days later. She selected a photograph and was sure that it was the female who had assisted the armed man in the robbery. The person identified by the victim, referred to as Miss “A”, was ruled out as a suspect by the police.
[34] It was the Crown’s position that the female accomplice was Yolanda Mason, the appellant’s girlfriend. Ms. Mason had been charged with that robbery and had pled guilty in an earlier separate proceeding.
[35] On the first trial, the trial judge was satisfied that any reference to Ms. Mason’s guilty plea could be very prejudicial to the appellant. Counsel for the appellant took the same position. In fact, the trial judge had declared a mistrial in a previous proceeding after a witness had referred to Ms. Mason’s plea.
[36] The defence had a dilemma concerning the eyewitness identification of the female accomplice in the Cumberland Variety robbery. On the one hand, the defence was anxious to keep from the jury the fact that the appellant’s girlfriend, who was living with the appellant at the time, had pleaded guilty to that robbery. At the same time, the defence wanted to be able to suggest that the victim in the Cumberland robbery had correctly picked out the female accomplice, and that the person picked out was not Ms. Mason and was not known to the appellant. The question became – how far could the defence go in questioning with respect to the identification of the female accomplice in the Cumberland robbery without opening the door to evidence that Ms. Mason was that accomplice and had pleaded guilty to that robbery?
[37] The matter came up in argument on several occasions in the course of the trial. The trial judge ultimately held that the evidence of the photo line-up could go before the jury as could the fact that Ms. “A”, the person picked out of the line-up by the victim, had been eliminated as a suspect. The trial judge held that the actual identity of Miss “A” was irrelevant. The trial judge also changed his earlier ruling and held that counsel could not elicit evidence that Miss “A” was not Yolanda Mason. In his view, the only purpose of leading this evidence was to suggest to the jury that Yolanda Mason was not the perpetrator. The trial judge observed:
That inference would be against what we know to be true, namely Yolanda Mason is guilty by virtue of her earlier plea. It would be wrong to lead evidence or to argue a position that suggests that Yolanda Mason might be innocent.
[38] The trial judge was doing his best to allow the appellant latitude to lead any evidence that might help the appellant, without allowing what the trial judge saw as misleading information to be placed before the jury as to the identity of the female accomplice.
[39] We agree with the substance of the trial judge’s ruling, although our analysis is somewhat different. Ms. Mason’s guilty plea in a separate proceeding would not in law preclude the appellant in his trial from leading evidence to demonstrate that she was not the perpetrator, assuming that evidence was relevant to a fact in issue at his trial. If the defendant chose to lead that evidence, however, he would open the door to evidence from the Crown that Ms. Mason was in fact the female accomplice. This evidence could include evidence of her guilty plea if adduced in a properly admissible form. The defence clearly did not want to go down that path as evinced by the earlier successful mistrial application.
[40] We are satisfied that the appellant was not prejudiced by the trial judge’s ruling that he could not lead evidence that Ms. Mason was not Miss “A”. The trial judge’s determined efforts to avoid any inquiry as to the identity of the female accomplice, in particular whether Ms. Mason was that female, enured to the benefit of the appellant.
(ii) The Trial Judge’s Failure to Direct an Acquittal on the Charge of Assaulting a Police Officer
[41] The appellant was apprehended by a plainclothes police officer on October 14, the day of the fifth robbery, in the vicinity of that robbery. An altercation occurred during which the appellant struck the officer in the face. On the evidence, it was arguable that the officer had not identified himself before he was struck. The jury ultimately convicted the appellant on the included offence of assault simpliciter.
[42] On appeal, the appellant’s counsel’s arguments assumed that the appellant had been convicted of the offence of assaulting a police officer. Counsel’s submissions were aimed at demonstrating that the officer was not in the proper execution of his duty. These arguments were abandoned after counsel for the respondent pointed out that the conviction was for assault simpliciter.
[43] The appellant argued that there were still defences available to the assault charge. That may be the case, however, none would merit the directed verdict sought by the appellant. Counsel does not suggest any misdirection or non-direction in respect of this charge. This ground of appeal fails.
(iii) The Instruction on Similar Fact Evidence
[44] Counsel for the appellant did not pursue this ground of appeal. The trial judge’s instructions were appropriate.
C. ALLEGED ERRORS IN THE SECOND TRIAL
(i) Did the Trial Judge Improperly Admit Evidence of Bad Character?
[45] The appellant makes two submissions in support of this ground of appeal. First, he argues that the trial judge improperly admitted a sawed-off shotgun and mask found in possession of the appellant when he was arrested on October 14. Counsel submits that neither object had any connection to the two robberies that were the subject matter of the second trial. Counsel also argues that the Crown was allowed to improperly cross-examine the appellant and elicit evidence of discreditable conduct and a criminal lifestyle.
[46] The evidence that the appellant was in possession of a loaded sawed-off shotgun when arrested was relevant as a piece of circumstantial evidence going to his identification as the perpetrator of the two robberies that were the subject matter of the second trial. The weapon was similar in appearance to the distinctive weapon used in those robberies and was in a bag that was very similar to a bag identified by the victim of one of the robberies. The trial judge clearly instructed the jury on the limited use it could make of this evidence.
[47] In his testimony, the appellant, in the course of being questioned as to his prior criminal record by his lawyer, acknowledged the convictions for the three October robberies, but denied that he had in fact committed those robberies. The appellant also testified that he had no knowledge of the contents of the bag that was attached to the handlebars of the bicycle he was on when he was apprehended.
[48] The appellant’s examination-in-chief opened him up to cross-examination on his knowledge of the contents of the bag and on the question of whether he had in fact committed the October robberies. One of those robberies had occurred very shortly before his arrest. The contents of the bag provided significant insight into the credibility of the appellant’s denial of any involvement in (at least) the third of the three October robberies. The cross-examination was appropriate and responsive to the issues raised by the appellant in his examination-in-chief.
[49] We also reject the submission that even if the subject matter of the cross-examination was proper, Crown counsel went too far in his cross-examination and conducted a cross-examination that was abusive, thereby rendering the trial unfair. Most of the information that the appellant now complains was improperly adduced to blacken his character was in reality brought out by the appellant himself during his examination-in-chief. The appellant attempted to depict himself as an honest criminal who acknowledged his responsibility for the crimes he committed. The impugned cross-examination, while forceful, was aimed at clarifying or challenging the evidence brought out during examination-in-chief. The cross-examination was appropriate.
(ii) The Trial Judge’s Instruction on the Bad Character Evidence
[50] In his instructions, the trial judge told the jury to consider the evidence relevant to each count separately. He reviewed that evidence with the jury in some detail. The trial judge also gave a powerful limiting instruction with respect to the use of the evidence of the appellant’s criminal record. This instruction was important because the appellant had given detailed testimony into circumstances surrounding several of his prior criminal offences. The Crown, given the examination-in-chief, had also cross-examined him on some of the offences at length.
[51] The trial judge did not give the same limiting instruction with respect to the evidence of the appellant’s bad character that was not reflected in his criminal record. He could have done so. We are satisfied, however, considering the instruction in its entirety, that the jury would understand that it was not to infer the appellant’s guilt in respect of the robbery charges based on his prior misdeeds whether or not they resulted in criminal convictions. It is not reasonable to assume that the jury would understand the very limited use it could make of the evidence of the appellant’s serious prior misconduct that had resulted in criminal convictions, but resort to propensity reasoning in respect of much less serious misconduct.
[52] There was no objection to the trial judge’s instructions. The failure to object is not determinative. It is, however, a good indication that those involved in the trial did not see the absence of a more detailed limiting instruction as prejudicial to the appellant’s position.
(iii) The Instruction on Identification Evidence
[53] The trial judge’s instructions on identification evidence followed very closely the model instructions found in Justice Watt’s manual of model jury charges. The appellant submits, however, that the trial judge should have alerted the jury to the specific deficiencies in the identifications relied on by the appellant in the same part of the instruction in which the trial judge highlighted the dangers inherent in identification evidence. According to the appellant, the failure to do so constitutes a reversible error.
[54] The trial judge could have used the format now put forward by counsel for the appellant. He may well have done so had anyone asked him to do so. In any event, there is no one format that must be followed. The trial judge made the dangers inherent in eyewitness identification clear to the jury. In his review of the evidence, he put forward the evidentiary points now advanced on behalf of the appellant as undermining the reliability of the identification evidence. The trial judge’s failure to put these two components of his instructions to the jury in a particular order cannot amount to reversible error.
III. Sentence Appeal
[55] On July 26, 2007 the appellant received a life sentence on one of the robbery counts and various concurrent terms on the other offences. Life imprisonment is the maximum penalty for armed robbery provided under the Criminal Code, R.S.C. 1985 c. C-46. Section 344(a) provides:
Every person who commits robbery is guilty of an indictable offense and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years.
[56] While, as the Crown recognizes, a sentence of life imprisonment is rarely imposed for armed robbery, the normal principles govern appellate review. An appellate court must show substantial deference to the sentence chosen by the judge who presided at the trial and sentencing hearing. An appellate court may interfere with a sentence only if the judge has committed an error in principle, the judge has failed to consider or overemphasized a relevant factor, or if the sentence is demonstrably unfit.
[57] The trial judge began his reasons for sentence by restating the statutory principle that "the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, a respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions... “as well as that” a sentence must be proportionate to the gravity of the offense and the degree of the responsibility of the offender."
[58] The trial judge took note of the Victim Impact Statements filed by the individual victims of the appellant's crimes. Understandably, they were traumatized by having a loaded sawed-off shotgun pointed at them. The trial judge said they continued to suffer horror, broken psyches and spirits, though he added that the appellant had not inflicted any actual physical harm on them.
[59] The trial judge reviewed the appellant’s criminal record. It commenced when, at the age of sixteen, he was first convicted of assault and mischief to public property. Two months later, he was convicted of break and enter with theft and fail to appear. Then, at the age of seventeen, he was convicted of robbery. At the time of sentencing in this case, his criminal record, including these convictions, contained forty-nine convictions, thirty-six of which, the trial judge characterized as involving violence in some fashion. The record includes nine robberies, seven assaults, and four break and enters. The appellant was forty-one years of age.
[60] The presentence report before the judge incorporated excerpts of three psychologists’ reports that had been prepared for earlier sentencing proceedings. These indicated that the appellant has “an organic mental disorder with behavioural disturbance, presumably the result of a head trauma during childhood”, that he has “an antisocial personality disorder complicated by substance abuse”, and that “it would be difficult to minimize his risk for future violence as this has become habitual.” The medical reports also indicated the appellant is noncompliant in taking medications to reduce his aggressiveness.
[61] The Crown also introduced evidence that the appellant’s aggressiveness continued during his pre-trial custody. Specifically, he had nine “misconducts”, including assaults on staff and threatening an officer.
[62] The trial judge found that the appellant’s substance abuse continues to be habitual without any indication that he intends to stop using cocaine or seek counselling. The trial judge found that crime was the appellant's occupation and that robbery was a significant method by which he obtained his income. While he had not physically harmed any of the victims, these offences carried a high potential for serious violence. The trial judge observed, “[w]ith a loaded shotgun, crack cocaine, heightened adrenaline of the players, and closely accompanied by the randomness of life in a variety store robbery, it is more by good luck and good management that something even worse did not happen.”
[63] Given all this, the trial judge noted that the Criminal Code and case law obligated him to impose a sentence that protects society and sends a message that the use of firearms carries with it the stiffest of penalties. He said that “the community looks to the Court to give some measure of expression of their revulsion of violence and guns.” The primary goals of sentencing in this case were the protection of the public, and general and specific deterrence.
[64] The trial judge, in summing up his assessment of the appellant, stated the appellant had “dangerous and violent behavioural characteristics that seemed to be well entrenched. He has repetitive manifestations of his antisocial behaviour and he does so at times with a loaded gun in his hands”. Most significant for this sentence appeal is that the trial judge concluded that the appellant is incorrigible and poses a continuing threat to public safety.
[65] The trial judge observed that a life sentence would mean that the appellant would remain subject to the Parole Board for the rest of his life. His eligibility to apply for parole would create “the largest incentive for self rehabilitation and good conduct, whereas a fixed but determinative sentence is a limited incentive at best.” He added that “a life sentence would, once he is paroled, allow for better control, a quicker response, and a heightened and lasting vigilance of his conduct. The sentence stays with him and his liberty can be modified depending on his behaviour.”
[66] Repeating the need for denunciation, general and specific deterrence and for a rehabilitative incentive, the trial judge sentenced the appellant to life imprisonment on count number one and to various concurrent terms on the other counts.
[67] The appellant submits that life imprisonment is too excessive to be a fit sentence. Further, the appellant submits that the trial judge erred by imposing a life sentence in order to keep the appellant under the control of the parole board.
(i) Is Life Imprisonment Excessive?
[68] The appellant submits that life imprisonment is inappropriate and excessive in the circumstances. Relying on the Supreme Court of Canada’s decision in R v. Cheddesingh, (2004), 2004 SCC 16, 182 C.C.C. (3d) 37, and this court’s decision in R v. Klair (2004), 2004 8965 (ON CA), 186 C.C.C. (3d) 285, the appellant submitted that a court should rely on the following factors in imposing a sentence of life imprisonment:
- the violation of fundamental rights of privacy and security in a dwelling;
- unusual cruelty, brutality and violence;
- intentional, prolonged, repeated violence against the victim;
- acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture;
- intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason;
- deliberate infliction of brutal, disfiguring, life threatening injuries.
[69] The offenders in Cheddesingh and Klair were each being sentenced for a single incident. There is no principle that a maximum sentence cannot be imposed except in cases involving the above features. Adopting the factors suggested by the appellant as prerequisites to a life sentence would result in the same improper fettering of the trial judge’s discretion as occurred with the now discarded concept of “stark horror”. As the Supreme Court held in Cheddesingh the sentencing inquiry must proceed on a case-by-case basis and the maximum sentence will be appropriate if the offense is of sufficient gravity and the offender displays a sufficient blameworthiness.
[70] This court has previously upheld a sentence of life imprisonment for robbery. In R. v. Stairs (1994) 1994 1396 (ON CA), 73 O.A.C. 79, the offender received a life sentence for a single robbery of a delicatessen using an imitation handgun. He was forty-seven years old and had six prior convictions for robbery commencing when he was twenty-one years of age. At the time he was sentenced he was facing two additional charges of robbery. He had been continuously in the penitentiary system for the previous fifteen years, except when he was unlawfully at large, at which times he had resumed his dangerous criminal activities. The substantial sentence he had received in the past had not deterred or rehabilitated him. He showed no remorse and there was no evidence “that his outlook towards a continued career in crime has changed”.
[71] In upholding the sentence of life imprisonment in Stairs, this court stated that “the overriding principle that should guide us in this case is the requirement for the protection of the public.” The court adopted the statement of the British Columbia Court of Appeal in R. v Ko (1979), 1979 512 (BC CA), 50 C.C.C. (2d) 430 that:
The criminal record and incorrigibility of a convicted person may be such as to justify the imposition of a maximum sentence to deter the convict and protect the public although the circumstances of the particular crime committed do not justify categorizing it as one of the worst of its kind.
[72] In this case, there was an ample basis for the trial judge’s finding that the appellant is incorrigible and poses a continuing threat to public safety. The appellant is a career criminal who has spent a great deal of his adult life in prison and whose prospects for rehabilitation are minimal. Given that armed robbery seems to have become his crime of choice, he poses a great and continuing danger to the community.
[73] The appellant was convicted of four counts of armed robbery, one count of robbery which also involved the use of a firearm, three counts of pointing a firearm, four counts of weapons dangerous, one count of wearing a disguise, and one count of common assault. The gravity of the offence of armed robbery is apparent as the Criminal Code prescribes a punishment from a minimum of four years imprisonment up to a maximum of life imprisonment. This court has repeatedly stated that armed robbery of small convenience stores and gas bars pose heightened dangers to the vulnerable merchants and employees who work alone at all hours.
[74] Given the gravity of the appellant’s offences, and their actual and potential impact upon the victims, his unbroken criminal record, his entrenched pattern of violent behaviour that has become habitual, the medical reports of his antisocial personality disorder, his minimal prospects for rehabilitation and demonstrated lack of any wish to change, the trial judge did not err in principle in imposing a sentence of life imprisonment.
(ii) Did the trial judge err in imposing a life sentence to keep the appellant under the control of the Parole Board?
[75] This argument of the appellant focuses on the trial judge’s remarks that “a life sentence would mean that [the appellant] is subject to the Parole Board” and that the “advantage of a life sentence in these circumstances is that it creates the largest incentive for self rehabilitation and good conduct, whereas a fixed or determinative sentence is a limited incentive at best”. The appellant also points out that the trial judge observed, “[a] life sentence would, once he is paroled, allow for better control, a quicker response, and a heightened and lasting of vigilance of his conduct”. Finally, the trial judge indicated that he was “loath to allow [the appellant] back into the community at the end of his sentence without some realistic and continuing controls beyond that provided in a halfway house for a short period of time on this particular offender”.
[76] The appellant submits that the trial judge erred by considering the parole implications of the sentence being imposed. This court, in R. v. Wilmott, 1966 222 (ON CA), [1967] 1 C.C.C. 171 disapproved of a court increasing a sentence to keep the offender under the control of the Parole Board. That, however, did not occur here. Wilmott specifically stated that “a Court in determining an appropriate sentence of imprisonment may, quite properly, take into consideration the provisions of the Parole Act and the duties of the Parole Board under the Act and Regulations.”
[77] The trial judge accurately described the parole implications of the sentence he considered appropriate and which he decided to impose. He might have added the observation that the appellant, having received a life sentence, will be eligible for parole in seven years, whereas, ironically, had he received an appropriate determinate sentence, his period of parole ineligibility would likely have been longer.
[78] We would not give effect to this ground of appeal.
IV. CONCLUSION
[79] The appeals from conviction are dismissed. Leave to appeal sentence is granted and the appeal is dismissed.
RELEASED: “DD” “JUN 18 2008”
“Doherty J.A.”
“R.G. Juriansz J.A.”
“James Kent J. (ad hoc)”