COURT OF APPEAL FOR ONTARIO DATE: 20210618 DOCKET: C68922

Feldman, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Shawn Labrosse-Quinn Appellant

Karin S. Stein, for the appellant Andrew Hotke, for the respondent

Heard: June 15, 2021 by video conference

On appeal from the sentence imposed on December 29, 2020 by Justice Mitch Hoffman of the Ontario Court of Justice.

Reasons for Decision

[1] Following the oral hearing of this sentence appeal, the court found that leave to appeal sentence would be granted but the appeal dismissed, and announced the result to counsel with reasons to follow. These are the reasons.

[2] The appellant pleaded guilty to robbery and possession of stolen property. He was the getaway driver for two masked men who robbed a convenience store at knifepoint, taking cash, cigarettes, and lottery tickets. The two men did not tell the appellant they were planning to rob the store. However, the appellant admitted that once they returned to the vehicle he knew or was wilfully blind to the fact that they were robbing the store. They instructed the appellant to drive away, which he did. The appellant received stolen lottery tickets as payment, which he later cashed at various retail outlets. The appellant was identified as a result of cashing the lottery tickets.

[3] The sentencing judge imposed a six-month sentence and 18 months’ probation.

[4] The appellant appeals his sentence on the basis that (1) the sentence was disproportionate because the sentencing judge misconstrued the appellant’s role in the offences and imputed a higher level of moral culpability than warranted; and (2) the sentencing judge erred in not imposing a conditional sentence or intermittent sentence, and his reasons for so doing effectively established a mandatory minimum sentence for convenience store robberies.

[5] For the reasons below, we do not agree that the sentencing judge erred.

Assessment of Moral Culpability

[6] First, the appellant argues that the sentencing judge wrongly imputed to the appellant knowledge of the robbery that he did not have, resulting in the sentencing judge elevating the appellant’s moral culpability. We do not agree. The sentencing judge’s reasons, as well as the transcript of the guilty plea, demonstrate that the sentencing judge well understood the limited nature of the appellant’s knowledge of, and involvement in, the robbery. The appellant’s guilty plea established that when the two men returned to the vehicle with the lottery tickets, cigarettes, and cash, he knew or was wilfully blind to the fact that they had robbed the store. It is inherent in the nature of the offence of robbery that it involves coercion. The appellant had to have known from the nature of the items taken that they would not have been accessible to the two men on open shelves and could only have been obtained through some measure of coercion of the store clerk. The sentencing judge accepted, however, that the appellant would not have known that the men had threatened the clerk with a knife. The sentencing judge expressly acknowledged that the appellant’s involvement in the robbery began only after his acquaintances had returned to the vehicle. The appellant was faulted for his decision to provide the means of escape, and for accepting the stolen lottery tickets as payment.

[7] At the sentencing hearing, counsel for the appellant submitted that the appropriate range for the offences was 3 – 6 months. Accordingly, it is difficult to now take the position that 6 months is disproportionate and excessive. We are not persuaded by the submission that parity with R. v. Gray, 2021 ONCA 86, mandates a lesser sentence. There were relevant differences between the appellant and the offender in Gray that justify different treatment, notably the application of Gladue principles in Gray and Gray’s positive steps towards rehabilitation post-conviction. Additionally, the appellant has the added conviction for possession of stolen property. In any event, the sentence imposed is not outside the relevant range.

Conditional or Intermittent Sentence

[8] The sentencing judge expressly considered whether to impose a conditional sentence or an intermittent sentence. The sentencing judge noted the appellant’s age and that this was his first conviction for a criminal offence. He ultimately decided against a conditional or intermittent sentence based on the degree of the appellant’s moral culpability and the need for deterrence and denunciation of this type of crime. We do not agree with the submission that in so deciding the sentencing judge overemphasized deterrence and denunciation, or thereby categorically established a mandatory minimum for convenience store robberies. The sentencing judge was attentive to the particulars of the appellant’s actions and personal circumstances, was guided by all the relevant principles of sentencing and came to a sentence that was open to him. The appellant has not identified any error in principle that that would permit this court to interfere with the sentence imposed: see R. v. Lacasse, 2015 SCC 64, para. 11.

Disposition

[9] Leave to appeal sentence is granted and the appeal of sentence is dismissed.

“K. Feldman J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”