COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boudrias, 2020 ONCA 484

DATE: 2020-07-29

DOCKET: C67365

Strathy C.J.O., Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Alain Boudrias Appellant

Counsel: Paolo Giancaterino, for the appellant Samuel Greene, for the respondent

Heard: in writing

On appeal from the convictions entered on June 1, 2018, and the sentence imposed on September 6, 2018, by Justice Ronald M. Laliberté of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1] Following trial by judge alone, the appellant was convicted of robbery, possession of a weapon for a dangerous purpose, and two breaches of probation. He was sentenced to 40 months’ imprisonment, less five months’ credit for pre-trial custody.

[2] The appellant appeals against both conviction and sentence.

[3] For the reasons that follow, we dismiss both appeals. However, we set aside the victim surcharge imposed on the appellant.

BACKGROUND IN BRIEF

[4] On May 12th, 2016, after drinking with friends, the appellant called a cab and was picked up from his residence. He got into the front passenger side of the cab and indicated where he wanted to go by gesturing which streets the cab driver was to take. A physical altercation then took place between the appellant and the cab driver.

The Altercation

[5] On the findings of the trial judge, the altercation unfolded as follows. After travelling a short distance in the cab, the meter showed the fare as $10. Instead of paying, the appellant produced a knife, held it in the area of the cab driver’s throat and chest, and demanded money. The cab driver managed to call 911 on his cellphone and tried to leave the cab. He either fell to the ground or was pushed by the appellant. The appellant assaulted the cab driver while he was on the ground outside the cab. A bystander witness observed the assault. He saw the appellant on top of the cab driver, throwing punches, and said it was the appellant who was the aggressor. The police later found a knife in the front seat of the cab where the appellant had been sitting. The police officers who arrived on the scene observed the appellant walking away; he appeared intoxicated.

[6] In making these findings, the trial judge accepted the evidence of the complainant cab driver (the “complainant”), the two police officers who arrived at the scene, and the bystander witness who observed the assault outside the cab. In accepting the evidence of the bystander witness, the trial judge found that he was credible, reliable, had a clear view of the events, did not know any of the parties, and had no interest or stake in the matter.

[7] The trial judge also relied on an agreed statement of facts which showed, among other things, that at the time of the altercation, the appellant was bound by two probation orders that required him to keep the peace and be of good behaviour.

The Credibility Determinations

[8] The complainant testified at trial. He was inconsistent about some details of the incident, including whether the appellant demanded money when he held the knife to his throat, whether he fell or was pushed to the ground outside the cab, and whether his cell phone fell out of the cab or he threw it out the window.

[9] The trial judge found the complainant to be credible and reliable, and accepted his version of events. He acknowledged the inconsistencies in the complainant’s evidence and found them to be understandable, partly because of the complainant’s challenges with the English language and his need to testify through an interpreter. He noted that the complainant had been consistent throughout in his description of the actual robbery. That version of events was also consistent with the police having found the knife in the cab where the appellant had been sitting and where the offence took place. As well, it was consistent with the evidence of the independent bystander witness.

[10] The appellant testified at trial. He said that, on the evening in question, he was drinking with his friends at a bar and his friends invited him to go to a second bar. He had six beers and was not intoxicated. He did not have money for a cab but his friends offered to pay for it. He declined and walked home. Once home, he changed his mind and called a cab so he could meet his friends at the second bar. Part way through the cab ride he changed his mind again and directed the cab back to his home. He knew he did not have money for the fare but offered the driver his wallet, with his bank card and ID, as security. The complainant became angry, would not let him out of the cab, and started the physical fight. The appellant said he was defending himself but admitted to using “excessive force”. He testified that he had never seen the knife before, had not taken it with him into the cab, and had not used it to threaten the complainant.

[11] The trial judge disbelieved the appellant, finding him to be neither credible nor reliable. He began by noting the appellant’s long history of crimes of dishonesty. He explained why he found the appellant’s narrative of events to be “suspect and unusual”. He then explained how it was contradicted by the evidence of the independent bystander witness, the fact that the police did not find a wallet on him or at the scene, and that the bystander witness and police witnesses said the appellant appeared intoxicated.

Sentencing

[12] The Crown sought a prison term of three and a half years less pre-trial custody. The defence sought a sentence of two years in prison plus pre-trial custody. After identifying a number of aggravating factors, the defence referred to the appellant’s efforts to deal with his addiction to drugs and alcohol.

[13] The sentencing judge set out the legal principles that govern sentencing, including the jump principle, and then considered the appellant’s personal circumstances. He was 41 years of age at the time of sentencing and had three children and a grandchild. Although he had once worked as a painter, he was on ODSP for mental health issues such as anxiety, depression, and ADHD. He had a long-standing addiction to hard drugs and alcohol and had made efforts to address his substance abuse issue.

[14] The judge identified the appellant’s efforts at addressing his addiction issues as a mitigating factor but noted that the appellant had made the same submissions in sentencing proceedings in 2011 after he pleaded guilty to a robbery.

[15] The judge referred to the serious nature of robbery, the appellant’s use of a knife in order to steal money, the “fairly violent attack” on the complainant, the element of planning inferred from the appellant having taken the knife with him and directing the complainant on the route he was to take, the vulnerability of cab drivers, and that the appellant was under two probation orders at the time of the attack. He described the appellant’s lengthy criminal record, spanning from 1994 (when the appellant was a youth) to 2015, for crimes of dishonesty, including the robbery mentioned above for which he was sentenced to 20 months’ imprisonment, and other crimes of violence that included assaults, assaulting a peace officer, and criminal harassment. As well, there were many convictions for breaches of court orders.

[16] The judge concluded that these factors made denunciation and deterrence, both specific and general, of heightened importance. He stated that “the record would suggest that attempts at rehabilitation have failed thus far”.

[17] He then sentenced the appellant to 40 months’ imprisonment, less five months’ credit for pretrial custody: 36 months for the robbery, 12 months’ concurrent for possession of a weapon, and four months for each breach of probation, concurrent to one another but consecutive to the robbery.

THE ISSUES

[18] The appellant raises one issue on the conviction appeal: did the trial judge apply a higher standard of scrutiny when assessing his credibility as compared to that of the complainant?

[19] The appellant raises two issues on the sentence appeal. Did the sentencing judge err in failing to: apply the jump principle; and give appropriate weight to rehabilitation?

THE CONVICTION APPEAL

Did the trial judge err by unevenly scrutinizing the evidence of the appellant and the complainant cab driver?

[20] The appellant submits that the trial judge “took even the slightest opportunity” to reject the appellant’s evidence and was “uncommonly forgiving” of similar problems in the complainant’s testimony. He says that there were significant inconsistencies in the complainant’s testimony that went to the heart of the allegations and that, had the trial judge applied the same standard when assessing the credibility of the complainant and the appellant, the complainant’s testimony would have raised a reasonable doubt as to his guilt.

[21] We do not agree.

[22] It is trite law that the standard for “uneven scrutiny” is high, and the trial judge’s findings on credibility are owed deference: see R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88. We see no basis on which to interfere with the trial judge’s credibility findings. Those findings were fairly made and well grounded in the evidence.

[23] The judge was not “uncommonly forgiving” of frailties in the complainant’s evidence. He accepted the complainant’s evidence because he found it to be believable and corroborated by the other evidence. The trial judge acknowledged the peripheral inconsistencies in the complainant’s evidence but found them to be due, in part, to the complainant’s limited ability to speak English.

[24] As we explain above, the trial judge rejected the appellant’s evidence because of his long-standing and repeated crimes of dishonesty, its inherent implausibility, and it was contradicted by the evidence of the impartial eye-witness and the physical evidence, which included the location of the knife and the absence of the appellant’s wallet.

THE SENTENCE APPEAL

Did the sentencing judge err in failing to apply the jump principle?

[25] In 2011, the appellant was sentenced to 20 months’ imprisonment after pleading guilty to robbery. That robbery involved threats, but no physical violence, against a 71-year-old man operating a MoneyMart. In these proceedings, he was sentenced to 36 months’ imprisonment on the robbery conviction. The appellant submits that this sentence offends the jump principle, which requires that successive similar offences be met with incrementally more severe sentences, rather than jumping from a light sentence to a significantly harsher one.

[26] The trial judge was fully alive to the jump principle. He expressly quoted from the directives of this court in R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) and cautioned himself against imposing a dramatically more severe sentence than that which had been imposed on the appellant for similar offences in the recent past. However, as the quoted passage from Borde states, the jump principle has little application where the severity of the crime shows a dramatic increase in violence and seriousness.

[27] In this case, there was a significant increase in the violence and seriousness of the robbery compared to the circumstances of the appellant’s prior robbery. Whereas the prior robbery involved threatening, in this case, the appellant used a knife in the commission of the robbery; as a cab driver, the complainant was vulnerable; and the appellant violently attacked the complainant after the robbery.

[28] For this and the other reasons of the sentencing judge, a significant increase in sentence was required for deterrence and denunciation. Consequently, the sentence does not offend the jump principle.

Did the sentencing judge err in failing to give appropriate weight to the appellant’s rehabilitation efforts?

[29] The appellant contends that he demonstrated a commitment to rehabilitation prior to sentencing and that the sentencing judge did not give appropriate weight to those efforts because of his age, the fact he had been given credit for those efforts when sentenced for the prior robbery, and/or because his efforts have failed thus far.

[30] We do not agree.

[31] The sentencing judge acknowledged that the appellant’s rehabilitative efforts constituted a mitigating factor. He did not discount those efforts on the basis that the appellant was given credit for them when he was sentenced for the earlier robbery. Rather, the sentencing judge referred to the reasons of the sentencing judge from the earlier robbery to underscore his conclusion that the appellant’s efforts at rehabilitation had failed. Moreover, the trial judge did not refer to the appellant’s “stage of life” in order to discount the possibility of rehabilitation because of his age. Rather, the sentencing judge was reflecting on the appellant’s long history of offences and continued pattern of re-offending.

DISPOSITION

[32] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed except to set aside the victim surcharge.

“G.R. Strathy C.J.O.”

“E.E. Gillese J.A.”

“David Watt J.A.”