Court File and Parties

Court of Appeal for Ontario Date: 20210210 Docket: C67523

Before: Pepall, Tulloch and Harvison Young JJ.A.

Between: Her Majesty the Queen Respondent

And: Anthony Gray Appellant

Counsel: Ewan Lyttle and Meaghan McMahon, for the appellant Jeremy Tatum, for the respondent

Heard: August 20, 2020 by video conference

On appeal from the sentence imposed on September 20, 2019 by Justice Norman D. Boxall of the Ontario Court of Justice.

Tulloch J.A.:

A. Introduction

[1] The appellant seeks leave to appeal his sentence, and if leave is granted, appeals his sentence imposed for his convictions for armed robbery and wearing a disguise with intent to commit an indictable offence.

[2] The appellant pleaded guilty. He was sentenced to six months’ imprisonment for the robbery count, three months’ imprisonment for the wearing a disguise with intent count, to be served concurrently, and 12 months’ probation.

[3] The offences were committed when the appellant was 21 years old. At the time of sentencing, the appellant was 24 years old and a first-time offender without any prior criminal record. His sentence appeal is based on two main grounds.

[4] First, the appellant submits that the sentencing judge failed to properly apply the principles relevant when sentencing Indigenous offenders, set out in R. v. Gladue, [1999] 1 S.C.R. 688, as the judge permitted denunciation and general deterrence to improperly overwhelm the analysis. The appellant claims that this error led to the arbitrary conclusion that no jail sentence less than six months was appropriate in the circumstances.

[5] Second, the appellant submits that there has been a new development in the law since the appellant’s sentencing, allowing this court to impose a conditional sentence on the robbery count. Due to R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311, a recent decision from this court striking down s. 742.1(c) of the Criminal Code, conditional sentences are now available for offences where the maximum penalty is 14 years or life imprisonment, including robbery. The appellant effectively argues that this development entitles him to a conditional sentence.

[6] For the following reasons, I would not interfere with the sentence imposed. However, I would allow the appeal for the limited purpose of permanently staying the execution of the appellant’s remaining period of incarceration.

B. Facts

[7] On August 5, 2016, at approximately 11:24 a.m., the appellant entered a branch of the Bank of Montreal in Ottawa. His face and head were covered by a shirt. He walked over to a teller, produced an eight-inch knife, and, while brandishing the weapon at the teller, demanded money. The appellant made these threats in the presence of other patrons, including a mother and her two young children. He managed to flee the scene with $5,000.

[8] The robbery went unsolved for quite some time. On August 11, 2016, the police distributed a media release to try to identify the perpetrator of the robbery. However, it was not until January 2018, almost a year and a half after the robbery, that the appellant was arrested. At that time, the ex-girlfriend of the appellant’s brother identified the appellant, leading to his arrest.

[9] In October 2018, the appellant pleaded guilty to the offences of robbery and wearing a disguise, two weeks before his three-day trial on November 13, 2018. A Gladue report and a pre-sentence report were prepared for the sentencing hearing, which took place in August 2019. The imposition of the sentence was adjourned to September 2019.

[10] At the sentencing hearing, the appellant, through his lawyer, filed various materials documenting his positive attributes and post-plea rehabilitative steps. In addition, both the pre-sentence report and the Gladue report were presented to and relied on by the sentencing judge.

[11] The Crown sought a global sentence of one-year incarceration, followed by probation.

[12] The defence requested a sentence which the sentencing judge described as “nuanced”. They sought either a non-custodial or intermittent sentence on the robbery charge, and a conditional sentence followed by probation for the offence of wearing a disguise.

[13] The defence pointed to the significant progress that the appellant had made since the offence; his work history; and the fact that at the time of the offence, he was affected by a drug addiction that he received treatment for by the time of sentencing. The appellant also had a close and supportive relationship with his mother. In addition, he was remorseful, had made full restitution, and was willing to participate in a sentencing circle, although the victims were not interested.

[14] The sentencing judge imposed a sentence of six months’ incarceration for the robbery count and three months’ concurrent for the wearing a disguise count, followed by 12 months’ probation. He gave a very thorough decision in which he fully considered the applicable principles of sentencing. He recognized that as the appellant was an Indigenous offender, he had to be sentenced with reference to the Gladue principles and s. 718.2(e) of the Criminal Code. The sentencing judge also observed that a fit and appropriate sentence must be guided by the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. He then specifically addressed the mitigating and aggravating factors and crafted a sentence which was responsive to the circumstances of the appellant. In arriving at what the sentencing judge deemed a fit sentence for the appellant on the robbery offence, he made the following observations:

There is no minimum sentence for robbery, so in - at least, in theory, I could consider a suspended sentence and a period of probation. Although a blended sentence of probation on the robbery and a conditional sentence on wearing disguise is theo - theoretically available, in my view, it would be an error in law to impose a conditional sentence on a lesser-related offence, and one cannot do this simply to avoid parliament’s intention. A pure suspended sentence on - on both counts is - is theoretically available, but in my view, suspending sentence on both counts and just placing the accused on probation would not address the seriousness of the offences, or the principles of sentences; and, in fact, defence counsel has essentially conceded this by suggesting a blended sentence - includes a - a conditional sentence.

It’s indicated there is no minimum sentence for robbery. However, I find that it would be an error in law to impose a suspended sentence and a period of probation, given that this was a bank robbery, and it involved a weapon. Thus, the sentence must involve custody in - in some fashion. Parliament has directed that it cannot be conditional, with respect to the robbery offence. I might add that, if a conditional sentence was available for the robbery, I would seriously consider it; in my view, specific deterrence is not a factor in this case, and there are many mitigating circumstances. And, deterrence, in some cases, can be met by a conditional sentence. However, Parliament has directed that a conditional sentence is not available for a robbery. [Emphasis added.]

[15] Prior to the appeal hearing, the appellant introduced two motions for fresh evidence, dated June 17, 2020 and August 18, 2020. These motions seek to adduce evidence relevant to the appellant’s post-sentence rehabilitative efforts and steps taken to live a pro-social life. Both motions included the consent of the respondent to the admission of this fresh evidence. As a preliminary conclusion, I am satisfied that this evidence satisfies the criteria for the admission of such evidence set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775: see also R. v. D.V.B., 2010 ONCA 291, 100 O.R. (3d) 736, at para. 97, leave to appeal refused, [2011] S.C.C.A. No. 207.

C. Issues

[16] The appellant effectively seeks leave to appeal his sentence on two bases:

1. Did the sentencing judge err by failing to properly apply the Gladue principles and permitting denunciation and general deterrence to improperly overwhelm the analysis, leading to the arbitrary conclusion that no jail sentence less than six months was appropriate in the circumstances; and

2. Given this court’s recent decision in Sharma, is the appellant now entitled to a conditional sentence?

D. Analysis

(1) Did the sentencing judge err by improperly permitting denunciation and general deterrence to overwhelm the analysis?

[17] The appellant does not argue that the sentence was unfit. Instead, he submits that the sentencing judge erred in principle in his application of the Gladue principles, by overemphasizing the principles of denunciation and general deterrence. He argues that this error enables this court to alter the sentence on appeal.

[18] He contends that, had the sentencing judge properly applied the Gladue principles, he would have more heavily considered restorative justice principles and imposed a lower sentence.

[19] I disagree. The sentencing judge correctly weighed the relevant sentencing principles. He made proper reference to both the circumstances of the appellant and the Gladue principles as codified in s. 718.2(e) of the Criminal Code.

[20] For this court to intervene in the sentence imposed, the appellant must establish that the sentence imposed is either demonstrably unfit, or that the judge made an error in law or principle that impacted the sentence. The seminal case of R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 10-11, 39-41, 44, 48-51, and 53, sets out the grounds upon which an appellate court may intervene and vary a sentence. Trial judges are afforded a wide discretion to impose what they deem to be an appropriate sentence. Sentencing is a fact-specific exercise, and each case must be considered contextually. This necessarily means that considerable deference is afforded to the sentencing judge.

[21] Among the underlying principles that guide any sentencing analysis are proportionality and parity. However, when sentencing an Indigenous accused, the analysis must be informed by s. 718.2(e) of the Criminal Code. This section is a remedial provision requiring a unique method of analysis when determining a fit sentence for an Indigenous accused, as set out in Gladue.

[22] When a judge crafts a sentence for an Indigenous accused, s. 718.2(e) requires them to consider

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community … with particular attention to the circumstances of Aboriginal offenders.

[23] Section 718.2(e) directs sentencing judges to “pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75. A sentencing judge must, when crafting a sentence for an Indigenous accused, consider all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code, including those codified in s. 718.2(e): Ipeelee, at para. 51.

[24] However, s. 718.2(e) and the associated Gladue framework do not detract from the fundamental sentencing principle of proportionality: R. v. Altiman, 2019 ONCA 511, 56 C.R. (7th) 83, at para. 78, citing R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 47. Similarly, the principle of parity in sentencing maintains relevance in the Gladue context, although courts should ensure that a formalistic approach to parity does not undermine the remedial purpose of s. 718.2(e): Ipeelee, at para. 79.

[25] The principle of proportionality mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, or what is also known as the moral blameworthiness of the offender: Ipeelee, at para. 37. The principle of parity underpins the integrity of the judicial sentencing process and preserves “fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences”: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 18.

[26] When sentencing an Indigenous accused, s. 718.2(e) and the Gladue principles provide “the necessary context for understanding and evaluating the case-specific information” particular to the accused (emphasis in original): Altiman, at para. 77, citing F.H.L., at para. 39.

[27] Section 718.2(e) requires a different method of analysis when sentencing Indigenous offenders. However, it does not necessarily require a different result or that a sentencing judge always prioritize principles of restorative justice when sentencing an Indigenous offender. This court made this clear in F.H.L., at para. 47:

Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”. A different method of analysis does not necessarily mandate a different result. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation. As this court recognized in R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 34], at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most important weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. [Citations omitted; emphasis added.]

[28] In my view, the sentencing judge carefully considered the applicable principles of sentence as they pertained to the appellant’s individual circumstances and the offences for which he was sentenced. The sentencing judge recognized that, while the appellant is an Indigenous first-time offender with positive post-offence rehabilitative efforts, he still had to consider the principles of proportionality and parity within the context of the Gladue analysis.

[29] The appellant committed a violent and serious crime. He robbed a bank during daylight hours, wearing a disguise, and while brandishing an eight-inch knife. He threatened a bank teller in the presence of patrons of the bank, including a mother and her two small children. He was also able to escape with $5,000 and was not apprehended until almost a year and a half later. This was an offence that required the sentencing judge to factor into his analysis the principles of general deterrence and denunciation.

[30] While the appellant’s circumstances suggested that specific deterrence was not a factor relevant to his sentence, the trial judge recognized that the needs of the community at large required a sentence that would denounce the conduct of the offence and serve to deter others who may be inclined to commit similar offences in the future. These were relevant and important considerations at the time of sentencing.

[31] The sentencing judge found that, after considering general deterrence, denunciation, and the need for a sentence proportionate to the gravity of the offence, a period of incarceration was necessary. This was so, notwithstanding the relevance of the Gladue principles and the particular circumstances of the appellant. This was a reasonable finding in the circumstances. The offence of robbery is one of the most serious offences within the Criminal Code. This offence mandates sentences up to a maximum of life. Any robbery offence is inherently violent, as the very definition of robbery connotes an offence of theft coupled with an act of violence. There are different degrees of robbery, and this one was serious.

[32] This trial judge recognized that his task was to carefully balance the circumstances of the appellant with the applicable sentencing principles in order to arrive at a fit and appropriate sentence. He recognized that one of the principles of sentencing was that he was obliged to consider the principle of proportionality. He stated this at the outset of his reasons.

[33] The sentencing judge directed his mind to the circumstances of the appellant and the appellant’s Indigenous status. Notwithstanding the seriousness of the charge, the sentencing judge’s task was to engage in an individualized analysis of the offender before him and the offence for which he was being sentenced. He recognized and accepted mitigating factors which inured to the appellant’s benefit. He concluded that specific deterrence was not a concern, given that the appellant’s post-offence and post-sentence conduct was positive and that he was unlikely to reoffend as a result. He noted that he was not bound by a sentencing range, and that he must consider the circumstances of the offence, the offender, and the needs of the community where the offence occurred.

[34] The sentencing judge specifically considered the appellant’s Indigenous status. He referenced his judicial duty to give effect to the remedial purpose of s. 718.2(e) of the Criminal Code and to respond to the over-incarceration of Indigenous offenders. It is this very analysis which led the sentencing judge to consider a sentence in the low reformatory range, and to impose a sentence of six months’ incarceration. In his reasons, he stated the following:

I’ve concluded there must be a custodial sentence for the robbery …. [U]nfortunately, I cannot conclude on these facts that I can impose an intermittent sentence. As I said, had a conditional sentence [been] available for the robbery proper, I would certainly consider it strongly. However, given general deterrence and denunciation, and proportionality of the gravity of the offence, even accepting the reduced moral responsibility of this offender; when one takes a look at the offence involved here, which is a bank robbery with a weapon; in my view, a custodial period that would be required for robbery exceeds that available under an intermittent sentence, which is restricted to a term of 90 days. However, I must go on to consider what is the minimum sentence I can impose - the least restrictive sentence I can impose, that satisfies all the sentencing principles and factors I’ve outlined, considering importantly, his plea of guilty, the Gladue factors, the fact that he is a first offender, the positive pre-sentence report, the restitution his counsel is in possession of, and undertaken to pay, and very importantly, that there is no need for specific deterrence in this case. I’ve concluded, after considerable thought, over a number of weeks not without some difficult moments, that the appropriate sentence and the shortest sentence that I can impose in this particular case, in compliance with my duty and responsibility to impose the least restrictive sentence, but yet, makes sure the sentence does meet the principles [and] purposes of sentence, generally, is one of six months’ incarceration. [Emphasis added.]

[35] I see no error in this analysis that would warrant interference by this court.

(2) Does this court’s decision in Sharma entitle the appellant to a conditional sentence in this case?

[36] The appellant also contends that in light of this court’s recent decision in Sharma, this court should impose a conditional sentence, an option that was unavailable to the sentencing judge. He argues that as this court held in Sharma that s. 742.1(c) of the Criminal Code is unconstitutional, a conditional sentence is now available for the robbery charge and should be imposed as the appropriate sentence. He proposes a conditional sentence of one year on the robbery count, followed by one year of probation on the wear disguise count.

[37] As indicated above, the sentencing judge was clearly mindful of his responsibility pursuant to s. 718.2(e). After weighing the relevant factors of sentencing pertaining to the appellant, who he recognized was a first-time Indigenous offender, he concluded that a non-custodial disposition would not adequately meet the objectives of sentencing.

[38] The sentencing judge considered a non-custodial sentence, as this was the initial request by the defense in their sentencing submissions. He concluded that a non-custodial sentence was not appropriate due to the circumstances of this offence.

[39] He also observed that a conditional sentence was not available to the charge of robbery. He went on to opine that if a conditional sentence was available, he would “seriously consider it”. While the sentencing judge stated that he would seriously consider a conditional sentence if it was available, he did not say that he would have imposed a conditional sentence if it was in fact available.

[40] When considering the intersection of the Gladue principles, as codified in s. 718.2(e), and the availability of conditional sentences to Indigenous offenders who have committed serious offences, the case of R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, is instructive.

[41] In Wells, the appellant was convicted of sexual assault, and sentenced to 20 months’ incarceration. He appealed his sentence and sought to convert it to a conditional sentence, on the basis that the sentencing judge did not take account of the considerations required by s. 718.2(e).

[42] Iacobucci J. summarized the central issues raised by this appeal at para. 25:

Section 718.2(e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where the paramount sentencing objectives are denunciation and deterrence. More specifically, this appeal must determine whether the trial judge properly applied s. 718.2(e) when sentencing the appellant. [Emphasis added.]

[43] In dismissing the appeal, the court made the following observations, at para. 30:

If the judge's preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2(e) when deciding the appropriateness of a conditional sentence. The judge's consideration of s. 718.2(e) at this stage does not displace the need to take into account all of the other principles and objectives set out in ss. 718 to 718.2. Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage. As was indicated in Gladue, the application of s. 718.2(e) does not mean that a sentence will automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII. [Emphasis added; citations omitted.]

[44] The fact that a conditional sentence is available does not mean that one will necessarily be imposed. The sentencing judge is still required to conduct an individualized analysis, considering all the relevant principles of sentencing and weighing the appropriate factors to determine a fit sentence.

[45] I accept that with the recent ruling in Sharma, it is now open for this court to consider the appropriateness of a conditional sentence for the appellant.

[46] I also accept that in all cases involving the sentencing of an Indigenous accused, judges are directed by s. 718.2(e) of the Criminal Code to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.

[47] In this case, the sentencing judge was of the view that because of the nature and circumstances of this particular offence, an actual custodial sentence was warranted, even when the Indigenous status of the appellant was factored into the sentencing analysis.

[48] When applying s. 718.2(e) to determine the appropriate sentence to be imposed, the court must consider sanctions “that are reasonable in the circumstances and consistent with the harm done to victims or to the community” (emphasis added). The available sanctions must be reasonable in the circumstances. Not all sanctions, though available, are reasonable in the circumstances of the offence and the offender.

[49] The trial judge recognized that there was no minimum sentence for the robbery, and in theory, he could consider a non-custodial sentence such as a suspended sentence and a period of probation. However, he concluded that because this offence was a bank robbery involving a weapon, he was obliged to impose a custodial sentence.

[50] In the circumstances of this case, this was a conclusion that was open to the sentencing judge. In Gladue, the court recognized that even where Indigenous offender are concerned, “there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant”: at para. 78. That court went on to say that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing“: at para. 79. While I acknowledge that this latter statement was subsequently qualified in Wells, at para. 50, and Ipeelee, at paras. 84-85, and 87, I nevertheless find it instructive in considering the present issue.

[51] The court in Gladue was also clear that “s. 718.2(e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal.” Instead, it is a “direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders” in reaching a fit sentence: at para. 88.

[52] After considering the sentencing judge’s reasons, the applicable principles, the appellant’s fresh evidence, and this court’s decision in Sharma, I conclude that the sentencing judge’s decision is sound. I would not alter the sentence imposed, even after considering the newfound availability of a conditional sentence for robbery.

[53] Accordingly, I would not give effect to this ground of appeal.

E. Conclusion

[54] Having determined that the sentence imposed at trial was fit, and that the sentencing judge did not commit any error in principle or law that had an impact on the sentence, I would not interfere with the sentence imposed.

[55] However, I would allow the appeal for the limited purpose of permanently staying the execution of the appellant’s remaining period of incarceration. Almost two years have passed since the appellant was sentenced. He spent 27 days in custody between receiving his sentence and being released on bail pending appeal. He was released on bail pending appeal on October 16, 2019, and his time since his release has been without incident.

[56] Most importantly, the fresh evidence indicates that the appellant has since had no trouble with the law and is living a positive and pro-social life. He has developed positive relationships with his mother, brother, and father. He started his own catering company and cooks on a volunteer basis for a charitable organization. The evidence indicates that the appellant is not consuming drugs. He has also started seeing a psychiatrist to address his underlying mental health issues and discuss how his drug addiction impacted his behaviour.

[57] In my view, reincarcerating the appellant at this stage “would serve no genuine societal interest and is unnecessary to achieve the objectives of denunciation and general deterrence”: R. v. Owen, 2015 ONCA 462, 336 O.A.C. 95, at para. 62. Instead, those objectives can be met, without disrupting the appellant’s rehabilitative progress, by affirming the sentence initially imposed. Furthermore, the sentencing judge explicitly noted that specific deterrence was not relevant to the appellant, who in their view was not likely to reoffend. My view on the issue of reincarceration is strengthened when I consider the Supreme Court of Canada's guidance in Gladue. “The community is best protected if the [appellant] continues along [his] rehabilitative path”, and I would accordingly stay the remainder of his custodial sentence and substitute a total period of probation of two years: R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at paras. 18-20; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11, 13, 17, and 29; Owen, at para. 63.

[58] Finally, I would also impose a weapons prohibition order under s. 109 of the Criminal Code, for a period of ten years.

Released: “S.E.P.” February 10, 2021 “M. Tulloch J.A.” “I agree. S.E. Pepall J.A.” “I agree. Harvison Young J.A.”