Court File and Parties

Court File No.: 11 1163 Ontario Court of Justice

Between: Her Majesty the Queen — and — Michael C. Bernard

Before: Justice Lloyd Dean

Counsel:

• Mr. Frank Schwalm for the Crown
• Ms. Maria Carroccia for the Accused Michael C. Bernard

Date: February 13, 2012

Reasons for Sentence

DEAN L.: (Orally)

[1] Introduction

Before the Court is Michael Bernard, who has pled guilty to having committed a robbery contrary to s. 343(b) of the Criminal Code. What remains for the Court to decide is the proper and fit sentence.

Issue

[2]

The issue is whether a conditional sentence is available for a robbery conviction in which it is found that the underlying conduct involved the use or attempted use of violence.

Facts

[3]

The facts that were agreed upon in the course of the guilty plea disclosed the following.

[4]

Mr. Bernard approached a store clerk who was attempting to make a deposit at a bank. Following a verbal demand by Mr. Bernard for the clerk to give him the deposit bag there was a brief struggle. During the struggle both the clerk and Mr. Bernard fell to the ground. There is a photograph which shows Mr. Bernard on top of the clerk when they are on the ground. He was able to get the deposit bag from the clerk and flee from the scene. He dropped his cell phone at some point during the struggle, or while he was fleeing. The cell phone allowed the police to ultimately identify and locate Mr. Bernard.

Position of the Parties

[5]

Defence counsel has asked for a conditional sentence order or, in the alternative, defence counsel submits a six month jail term would be a fit sentence.

[6]

The Crown's position is for 18 months in custody. The Crown argues the offence was a serious personal injury offence as defined in s. 752 of the Criminal Code and therefore, pursuant to s. 742.1, a sentence in the community is not available.

The Law

[7]

The first issue in sentencing Mr. Bernard is determining whether or not he committed a serious personal injury offence, thus precluding the imposition of a conditional sentence. If the offence is not a serious personal injury offence, the issue becomes whether or not a conditional sentence is appropriate regardless.

[8]

If a custodial sentence is available the Court has to determine what the just and fit sentence should be considering the purpose and principles of sentencing found in s. 718 through 718.2 of the Criminal Code.

[9]

Mr. Bernard entered a guilty plea to s. 343(b) of the Criminal Code. That section reads:

Every one commits robbery who:

(b) steals from any person and, at the time he steals or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

[10]

Section 742.1 reads:

If a person is convicted of an offence, other than a serious personal injury imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community … subject to the offender's compliance with the conditions imposed under section 742.3.

[11]

Section 752 of the Criminal Code states that a serious personal injury offence means:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving:

the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.

Analysis

[12]

The above provisions make it clear that a conditional sentence is not available if a person is convicted of a serious personal injury offence. Interpreting the definition of a serious personal injury offence in relation to conditional sentences (s. 742.1) has been the subject of competing judgments. However, in 2010, the Ontario Court of Appeal in the case of R. v. Lebar, with regard to s. 752(a)(i), held at paragraph 48 and 49:

48 To be true to Parliament's intention, the concept of violence must be given a broad interpretation.

49 In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence. A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence".

[13]

Paragraph 33 in Lebar stated:

…robbery can be committed in many ways, not all including the use or attempted use of violence.

[14]

The case of Lebar was also in the context of a robbery. Mr. Lebar had robbed at knifepoint a clerk inside of an LCBO store following a tap on the shoulder, but without causing physical injury.

[15]

The Court of Appeal recognized, as I said, that not all robberies are violent. It calls for a case-by-case consideration. Further it was explained when determining if an offence is a serious personal injury offence the main issue is finding whether the circumstances of the case demonstrate violence or attempted violence, and that if violence is found to have been used or attempted, there is no obligation to go further and measure the degree: see paragraph 67 of Lebar.

[16]

Because of the words "serious personal injury offence", many counsel have in the past, argued from the standpoint of whether or not the violence used was "serious", or was of such a degree to qualify as being "serious". But the court of Appeal in Lebar made it clear that "whether violence is found to have been used or attempted" is what the Court has to decide. Once the Court determines violence was used or attempted, then there is no obligation to go further and measure the degree of that violence.

[17]

Mr. Bernard's victim did not simply hand over the goods. When he encountered resistance Mr. Bernard decided to take what he wanted by force, leading the two men into a struggle where they fell to the ground before Mr. Bernard escaped with the bank deposit.

[18]

The intentional application of force by Mr. Bernard when he grabbed the bank deposit and sent the two men falling to the pavement meets the definition of "serious personal injury offence" as legislated, and interpreted by the Ontario Court of Appeal, which interpretation, I suggest, was that it is a low threshold to meet Parliament's intention.

[19]

I have concluded Mr. Bernard does not qualify for a conditional sentence as he has committed a serious personal injury offence.

Sentence

[20]

The remaining issue then is imposing a fit custodial sentence according to the purpose and principles of sentencing found in s. 718 to 718.2 of the Code.

[21]

Denunciation and deterrence, both general and specific, are called for in serious offences like robbery. Anyone approaching a bank to make a deposit is a vulnerable target, and such a robbery must be strongly denounced and deterred so the public can feel and be as safe as possible when accessing financial institutions.

[22]

With regard to specific deterrence, Mr. Bernard is a repeat offender. However, I do note that approximately eight years have passed since Mr. Bernard was previously convicted for robbery. In 2007, however, he was found guilty of three separate thefts. In 2010, he was convicted of dangerous operation of a motor vehicle, possession of proceeds of crime and break and enter. Although Mr. Bernard has taken steps to deal with his drug addiction, steps that should be commended, I believe specific deterrence is still at play here.

[23]

His pre-sentence report is, I would say on the whole, positive. He is presently employed with three dependent children and, if I recall correctly, he has a child on the way. He has the emotional support of his mother and his common-law spouse. As indicated he has a history, and I believe it is a long history, with drug addiction, including crack cocaine and alcohol. Between the time of this offence and today's date he has completed the three month Brentwood Recovery Home program. He now attends AA meetings on a regular basis. His mother indicates, through the pre-sentence report, that she has seen a significant turnaround in her son. Mr. Bernard himself reports his use of crack cocaine impacted negatively on every area of his life. That is undoubtedly true. His behaviour has impacted negatively on not only him personally, but on his family and the victims of his crimes.

[24]

No doubt a custodial sentence will cause further hardship to him and his family. It is regrettable, but yet still positive, and when I say that I mean, perhaps this last event was what prompted Mr. Bernard to reach out and get the help that he so desperately needed long before this event. Something good has come out of this event, I suppose, as long as Mr. Bernard can keep it going. It is regrettable that the offence requires a jail term given that Mr. Bernard has made such positive steps since the event and now has a job.

[25]

As I indicated earlier, the Ontario Court of Appeal case of Lebar was a robbery as well. No two cases are the same and no two offenders are the same, but I note that in the Lebar case the accused was a 50 year old laid off mail worker with a disabled brother whom he cared for. He had one prior conviction for driving over 80 milligrams, approximately seven years prior to that robbery. Yet the Court of Appeal felt that a six month sentence would have been appropriate for Mr. Lebar.

[26]

Mr. Bernard's criminal record is substantial relative to Mr. Lebar's criminal record. I have already highlighted some of the aggravating and mitigating factors. Further mitigating factors are his guilty plea. I am also mindful, although I do not know if it properly qualifies as a mitigating factor, that no weapon was used in committing the offence.

[27]

The longest Mr. Bernard has been in custody to date has been two 16 month sentences for robberies in 1999.

[28]

I am taking into account when ultimately deciding what sentence to impose that he has been on strict bail conditions since the date of the offence. One of his bail conditions was a form of house arrest for the first four months or so. It was then varied to a curfew which required him to be in his residence by 7:00 p.m. He has abided by those conditions.

[29]

The likelihood of Mr. Bernard re-offending really depends on his commitment and success he has in treating his addictions. As I have indicated, specific deterrence, perhaps not to the degree of other principles of sentencing that I have to consider, is still at play here. The other principles I believe that are important to address with the sentencing are general deterrence and denunciation.

[30]

Taking into account all of the factors that I have previously mentioned I have concluded the most lenient sentence I can impose, or to put it in the terminology of the Criminal Code, the most restrictive sentence I can impose under the circumstances of this offender and the facts of this particular case would be a nine-month custodial sentence followed by two years probation. The accused is to be given credit for 36 days of pre-sentence custody. There will be a further sentence of seven months and 24 days. That will be followed by two years probation.

[31]

The terms of the probation are as follows: Mr. Bernard please stand sir. You are to report within 72 hours of your release from custody in person to a probation officer, and thereafter as required by the probation officer, and be under their supervision, or anyone else authorized by the probation officer to assist in your supervision, and report at such times and places as that person may require. You are to attend and comply with an assessment, treatment, or counselling program as directed by probation. You are to abstain from the purchase, possession, and consumption of all non-medically prescribed drugs. You are to abstain from owning, possessing, or carrying any weapon as defined by the Criminal Code. You are not to associate or communicate, directly or indirectly, with Kevin Laurier, and you are not to attend any known residence or place of employment of Kevin Laurie. You are, pursuant to s. 109 of the Criminal Code, prohibited from any firearms or other items as listed in that section for a period of ten years. You are ordered to provide a sample of your blood for DNA data-banking purposes to the Windsor Police as soon as practicable. There is no victim fine surcharge.

[32]

Mr. Bernard, I just want to leave you with this message, because I know the custodial sentence, at least in real jail, is not something you had hoped for. As I indicated in my judgment you do not qualify for a conditional sentence, so I have to send you to jail.

[33]

I am hoping that does not discourage you from continuing with the steps that you have taken. You owe that to yourself, and especially to your children who are counting on you and depending on you. I hope somehow you do not lose your job, or if you do lose your job you are able to get employment again, because I think with your record it was lucky for you to have a job. So I am hoping that can happen, because I know when things are tough in a person's life and they don't have a job it becomes even harder to resist the addiction. I am hoping you stay strong throughout this. Good luck to you.

Dated at the City of Windsor this 13th day of February, 2012.

Justice Lloyd Dean