Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240306 DOCKET: COA-23-CR-0662

MacPherson, Miller and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Caleb Burgler Appellant

Counsel: Caleb Burgler, acting in person Jeffrey Couse, appearing as duty counsel Rebecca De Filippis, for the respondent

Heard and released orally: March 5, 2024

On appeal from the sentence imposed on May 30, 2023 by Justice Michelle Fuerst of the Superior Court of Justice, with reasons reported at 2023 ONSC 3194.

Reasons for Decision

[1] The appellant robbed a frail, elderly woman from his bicycle, causing her to fall to the pavement. He fled with the victim’s purse in order to fund his drug addiction. The victim sustained a fracture to her hip and died in hospital days later from complications. The appellant pleaded guilty to criminal negligence causing death.

[2] The appellant, who was 30 years old at the time of the offence and addicted to opiates, was sentenced to 6 years less 55 months and 12 days pre‑sentence custody, with three years’ probation including a curfew from midnight to 6 a.m. and a 10-year weapons prohibition.

[3] The appellant appeals from his sentence primarily on the grounds that the sentencing judge erred by: (1) not crediting his unsuccessful attempts to rehabilitate his drug addiction; and (2) not considering his drug addiction as a mitigating factor.

[4] We do not agree that the sentencing judge erred.

[5] First, the sentencing judge made no error in declining to treat the appellant’s drug addiction as a mitigating factor in robbery and criminal negligence causing death. There is no general proposition that a person who commits a crime to obtain drugs is less morally blameworthy than a person who does so for other reasons: R. v. Cass, 2019 ONSC 7313, at para. 42.

[6] Second, with respect to the argument that the sentencing judge erred in taking into account the appellant’s on-going addiction and inability to rehabilitate himself, the sentencing judge appropriately considered his efforts to address his addiction. The appellant’s addiction was relevant to the assessment of his risk of reoffending and the need to protect the community. It is not the role of this court to reweigh the sentencing factors and we decline to do so.

[7] With respect to the curfew and firearms prohibition imposed, they are a matter for the sentencing judge’s discretion. There is a nexus between the terms of probation, the rehabilitation of the appellant, and the protection of the public. The terms are not unfit, and we decline to interfere.

[8] The appeal is dismissed.

“J.C. MacPherson J.A.” “B.W. Miller J.A.” “P.J. Monahan J.A.”