Court of Appeal for Ontario
Reference: R. v. Burroughs, 2018 ONCA 704
Date: August 29, 2018
File No.: C63066
Justices: Associate Chief Justice Hoy and Justices van Rensburg and Pardu
Parties
Between
Her Majesty the Queen
Respondent
and
Corey Burroughs
Appellant
Counsel
Christian Deslauriers, for the appellant
Philippe G. Cowle, for the respondent
Date of Hearing: July 17, 2018
Appeal from: Conviction pronounced October 3, 2016 and sentence imposed December 7, 2016 by Justice Michel Z. Charbonneau of the Superior Court of Justice.
Opinion of the Court
Justice Pardu:
[1] Overview
[1] The appellant appeals his conviction for armed robbery and other offences. He also appeals his sentence of 8 years imprisonment.
[2] Facts
[2] On the morning of October 31, 2012, Halloween day, two individuals burst into the Restauparc located in the village of Casselman. They are masked, disguised, and armed with a pistol. One of the robbers orders one of the employees to open the safe. He then places the money, approximately $10,000, into a bag. The robbers bind the wrists of the employees and confine them. After searching the premises, the robbers flee with the money and a computer. Video cameras captured the movements of the perpetrators and the movement of vehicles outside the Restauparc.
[3] Police learn from the employees that one of the robbers called the other "Corey." The latter never spoke, but responded by his conduct to the name "Corey." Police also learn that a certain Corey Burroughs had recently been fired from the Restauparc in the spring of 2012. The individual called "Corey" appeared to know the premises very well, having managed to unlock a lock without triggering the alarm. Police identify Corey Burroughs as the principal suspect and a general alert is issued on the provincial police network.
[4] Around 7:30 a.m. on November 1, 2012, Corey Burroughs is arrested and taken to the police station. Around 8:00 a.m., police attempt to reach the lawyer chosen by Mr. Burroughs. The lawyer does not answer and police leave a message.
[5] Around 10:00 a.m., a second call is made to the office of the lawyer chosen by Mr. Burroughs. They are told that this lawyer is not available, but that another lawyer can speak with Mr. Burroughs. The telephone conversation begins around 10:30 a.m. and ends at 10:51 a.m. The interrogation of Mr. Burroughs begins at 12:33 p.m. and continues until 4:34 p.m.
[6] Despite the requirement of section 503 of the Criminal Code to bring an accused before a justice of the peace within 24 hours of arrest, Mr. Burroughs is not brought before a justice of the peace until 1:00 p.m. on November 2, 2012, more than 29 hours after his arrest on the morning of November 1, 2012.
[3] Trial Decision
[7] The trial judge concluded that police had unlawfully and arbitrarily detained Mr. Burroughs by deciding not to bring him before a justice of the peace as required by section 503 of the Criminal Code. The police knew that if they did not bring Mr. Burroughs before a justice of the peace by 1:00 p.m. on the day of arrest, it would not be possible to do so within the maximum 24 hours provided by section 503. Mr. Burroughs had finished his conversation with his lawyer at 10:51 a.m. Despite this, police waited until 12:33 p.m. to interrogate him so that the interrogation would be more effective. Police therefore deliberately chose not to comply with section 503 of the Criminal Code.
[8] The trial judge concluded that the test from R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 should be applied to determine whether a stay of proceedings was justified. According to the trial judge, the conduct of police in choosing to disregard the protection offered by section 503 constituted an affront to the integrity of the justice system. In his view, no other remedy was likely to correct the affront to the system of justice.
[9] At the third stage of the analysis required by R. v. Babos, the trial judge balanced the decision of the police against society's interest in having the charges tried on the merits. On one hand, the trial judge recognized that the police had acted in contravention of section 503 deliberately and that their conduct was shocking. On the other hand, the charges were serious: forcible confinement, violence, use of firearms. Only the identification of the accused was at issue, and the police's motivations were legitimate. Furthermore, the judge was of the view that the police's room for manoeuvre was limited: either Mr. Burroughs appeared at 1:00 p.m. on the day of his arrest, or section 503 was not complied with. This attenuated the impact of the police's conduct on public conscience. The appearance system had greatly improved since 2012, with a justice of the peace now available between 2:00 p.m. and 4:00 p.m. The risk of recurrence was attenuated. For these reasons, it was preferable according to the trial judge that the criminal prosecution proceed.
[10] The trial judge therefore chose not to stay proceedings. Mr. Burroughs was found guilty on all counts. After applying the principles of R. v. Kienapple, [1975] 1 S.C.R. 729, the judge imposed a sentence of 8 years imprisonment.
[4] Arguments on Appeal
(1) The Appellant
[11] The appellant is of the view that the trial judge erred in his application of the third stage of the analysis required by R. v. Babos.
[12] He alleges that the judge failed to consider that the appearance system at L'Orignal does not permit appearance before a justice of the peace before 1:00 p.m., resulting in systematic violation of the rights of all detainees arrested before 1:00 p.m. and not appearing the same day. New evidence demonstrates that the courthouse schedule remains the same today.
[13] Despite this systemic problem and the violation of Mr. Burroughs' rights, the judge balanced the conduct of the police against the legitimate motivations they had to locate the firearms used in the crime. According to the appellant, the judge erred in this balancing exercise.
[14] According to the appellant, the judge also erred in attenuating the responsibility of the police because of the constraints of the justice system, while reproaching them for deliberately delaying Mr. Burroughs' appearance.
[15] The appellant argues that the judge should have denounced the systemic problem at L'Orignal by staying proceedings. The judge erred in noting in his judgment that the greater availability of justices of the peace in the afternoon resolved the problem. Even today, no justice of the peace is available in the morning. The violation of Mr. Burroughs' rights therefore remains without consequence.
(2) The Respondent
[16] The respondent argues that the trial judge committed no error and that this court should respect the balance determined by the trial judge and dismiss the appeal of the conviction.
[5] Analysis
[17] In R. v. Babos, the Supreme Court described the analysis required following an abuse of process that does not compromise the fairness of an accused's trial in circumstances where no remedy other than a stay of proceedings is likely to correct the affront. The court explained, at paragraph 41, that the tribunal must conduct an analysis necessarily involving a balancing exercise. When conducting this exercise:
The court must take into account such matters as the nature and gravity of the conduct at issue – whether it is an isolated incident or a manifestation of a systemic and persistent problem – the situation of the accused, the charges the accused must face and the interest of society in having the charges tried on the merits.
[18] The Supreme Court specified, at paragraph 44 of R. v. Babos, that a stay of proceedings will be justified only if the affront to fair play and decency is disproportionate to society's interest in ensuring that criminal offences are effectively prosecuted: R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667. The residual cases that may justify a stay of proceedings will therefore be "exceptional" and "very rare."
[19] As to the standard of review applicable to remedies granted under section 24(1) of the Charter, the Supreme Court explained, at paragraph 48 of R. v. Babos:
A court of appeal is justified in intervening only if the trial judge based his or her decision on wrong legal principles, made a reviewable error of fact, or rendered a decision "so wrong as to create an injustice."
[20] In this case, I am not convinced that the judge based his decision on wrong legal principles or made a reviewable error of fact. I do not believe that the judge's decision was so wrong as to create an injustice. The appellant's arguments focus only on the weight accorded to the relevant factors by the trial judge.
[21] The balancing conducted by the judge was reasonable. After examining all relevant factors, he concluded that, despite the serious fault on the part of police, the integrity of the justice system would be better served by a full trial on the merits rather than by a stay of proceedings. No reason justifies intervention by this court in this conclusion.
[6] Appeal of Sentence
[22] The trial judge imposed a sentence of 8 years imprisonment. The parties agree that the judge erred in applying R. v. Kienapple and in imposing a minimum sentence of 4 years for armed robbery using a firearm, when the minimum sentence was actually 5 years.
[23] The sentence imposed can be summarized as follows:
| Criminal Code Charges | Stay of Proceedings | Sentence |
|---|---|---|
| 1. Section 88, carrying a weapon for the purpose of committing an offence | Yes, due to count 9 | |
| 2. Subsection 85(1)(a), use of a restricted firearm while carrying a weapon for the purpose of committing an offence | Yes, due to count 9 | |
| 3. Section 87, pointing a firearm | Yes, due to count 4 | |
| 4. Subsection 85(1)(a), use of a restricted firearm while pointing a firearm | No | 1 year |
| 5. Subsection 86(1), use of a firearm in a careless manner or without due regard for the safety of others | Yes, due to count 6 | |
| 6. Subsection 85(1)(a), use of a restricted firearm while using a firearm in a careless manner or without due regard for the safety of others | No | 1 year |
| 7. Subsection 351(2), having face masked with intent to commit an offence | Yes, due to count 8 | |
| 8. Subsection 85(1)(a), use of a restricted firearm while having face masked with intent to commit an offence | No | 1 year |
| 9. Subsection 344(1)(a), armed robbery using a restricted firearm | No | 4 years |
| 10. Subsection 343(b), robbery using violence | Yes, due to count 9 | |
| 11. Subsection 279(2), forcible confinement | Yes, due to count 12 | |
| 12. Subsection 85(1)(a), use of a restricted firearm while committing forcible confinement | No | 1 year |
[24] The accused requests that this court impose a global sentence of 5 years. The Crown prosecutor advocates for a sentence of 6 years. In his reasons on sentence, the trial judge mentioned that a sentence of 5 years or perhaps 6 years would have been appropriate given the gravity of the offence, the absence of a criminal record and the accused's background. However, he was of the view that this was not possible since the accused had been found guilty of multiple offences for which a minimum term of imprisonment is required.
[25] I would substitute a sentence of 5 years imprisonment for count 9, armed robbery using a restricted firearm, in accordance with the minimum sentence prescribed by subsection 344(1)(a)(i).
[26] I would enter a stay of proceedings on count 5. The trial judge identified no careless use of the firearm on the part of the accused. The firearm was not used by the appellant in any manner during the armed robbery, except for having been pointed at the person specified in count 3. The accused can therefore only be found guilty on counts 3 and 9.
[27] The offences of wearing a mask, forcible confinement and pointing a firearm all protect different interests. A stay of proceedings should not have been entered on these counts. However, the use of the firearm described in counts 4, 6, 8, and 12, in violation of subsection 85(1)(a), was encompassed within count 9, armed robbery using a firearm.
[28] This court described the analysis required in R. v. Rocheleau, 2013 ONCA 679, 311 O.A.C. 295, at paragraph 32:
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.
[29] Thus, the application of the principles of Kienapple should have led to a stay of proceedings for each count under subsection 85(1)(a) (4, 6, 8, 12), due to the conviction for use of a firearm in the commission of armed robbery under subsection 344(1)(a)(i).
[30] Second, convictions under subsection 85(1)(a) should not have led to the dismissal of the subsidiary offences – rather, they depended on them. As the Supreme Court explained in R. v. Pringle, [1989] 1 S.C.R. 1645, at p. 1653, the purpose of the offence provided for in subsection 85(1)(a) is to add an additional penalty to the penalty imposed for the subsidiary offence because of the use of a firearm.
[31] Third, the accused could not be convicted of use of a firearm while committing another offence that necessarily had to be committed using a firearm, for example, the offence of pointing a firearm. As the Crown prosecutor noted in its factum, "[t]o say otherwise would be to automatically impose the penalty provided by subsection 85(1)(a) on all offences that must be accomplished with a firearm. Nothing suggests that this was the legislator's intent."
[32] It follows from this analysis that convictions are maintained for counts 3, 7, 9, and 11, and that stays of proceedings are entered for counts 1, 2, 4, 5, 6, 8, 10, and 12.
[33] According to the observations of the parties, the sentence for counts 3, 7, and 11 should be one year imprisonment. I agree. It remains to determine whether this sentence should be served consecutively or concurrently with the 5-year sentence imposed for count 9.
[34] The offences committed by the appellant were serious and inexplicable, as described by the trial judge:
The pre-sentence report for Mr. Burroughs indicates a person who, until October 31, 2012, everything indicated that all was well in his life, he was working, he was also studying at Algonquin College. He had no criminal record of any kind. As his counsel said, one must often ask the question: What drives a 19-year-old to go ahead and commit an armed robbery when he has a background like that? In other words, when he comes from a home that seems to have values, that he had values instilled in him, that he seems to have always been responsible. Now, with all that, what we find is an individual who, despite having always worked and now, and for these four years, the work is very much appreciated by his employer. Now he faces a long penitentiary term.
[35] All the offences were part of the same event. I am, however, of the view that, taking into account the "principle of totality" and the appellant's young age at the time of the crime, the one-year sentence for counts 3, 7, and 11 should be served concurrently. The other ancillary orders pronounced by the trial judge are maintained.
"G. Pardu J.C.A."
"I concur Alexandra Hoy J.C.A."
"I concur K. van Rensburg J.C.A."
Released: August 29, 2018