Court Information

Date: June 27, 2018

Information No.: 18-1193

Ontario Court of Justice

Her Majesty the Queen v. Phillip R. Chenier

Reasons for Sentence

Before the Honourable Justice S.N. Latimer

on Wednesday, June 27, 2018, at Kitchener, Ontario

Appearances

• C. Jennison – Counsel for the Crown
• R. Heighton – Counsel for the Accused

Reasons for Sentence

LATIMER, J. (Orally):

Introduction

These are my reasons for sentence on Mr. Chenier's matter.

Mr. Chenier, in his mid-40s, has pleaded guilty to two indictable criminal matters: robbery and wearing a disguise, flowing out of conduct that occurred on February 18th, 2018, in the evening when he robbed a Petro Canada gas bar. Mr. Chenier's adult life is unfortunately littered with similar criminal activity, such that the vast majority of it has unfortunately been spent in the penitentiary system.

Facts

What occurred, as I saw on video today, is that around 8:00 p.m., Mr. Chenier went into the gas bar with his hood pulled up, essentially blocking his face, a photo of which has been made an exhibit, and with a knife in his hand, he made a demand for cash that was complied with by the clerk. Mr. Chenier then left with the money in a vehicle that had a licence plate that was his mother's car. The clerk of the store took a picture of it with his phone. Mr. Chenier saw this and said, "Now I'm going to have to kill you." The clerk called the police and locked himself in the gas bar.

Mr. Chenier was arrested later that evening and was compliant with the police investigation, providing a statement to the police and going so far as to show them where he had discarded the knife and the clothing in a dumpster near the apartment building. He also drew the police a diagram. I accept, as I'm going to refer to, that Mr. Chenier is entirely remorseful for what happened. It seemed to me that his conduct almost immediately thereafter evidences that remorse.

The Offender's Background

A presentence report helpfully details Mr. Chenier's family life and his past experiences in our community and also while incarcerated, both provincially and federally. He presents as an intelligent man, capable at times of taking positive rehabilitative steps, but other times relapsing into circumstances where he's prone to criminality.

On page nine of the report the author notes:

"In terms of the offences before the court, the subject expressed remorse, particularly in terms of how he likely affected the victim involved. He described his actions as a cry for help, noting that he did not need money and had not resumed any drug use. The subject stated that he can now see that he was not coping well, having stopped his prescribed medication. The subject expressed a desire to apologize to the victim of his offence, but confirmed an awareness that he's not able to reach out unless permitted.

With respect to the future, the subject states he believes he is likely going to be incarcerated for a period of time. He states that he plans to use this time to better himself, identifying several programs that he hopes to participate in. The subject stated that despite having done some programming in the past, he is aware that programs change and improve, and he is mindful that he can always learn something new."

I'm advised in submissions that currently, while Mr. Chenier's in pretrial custody, he's in an improved mental state. He's receiving his medication, and he's managing some of his mental health concerns, which allow him to engage more rationally to the people around him.

He was off his medication when this offence was committed, and I accept that factor was a contributing cause behind his current criminal conduct. I must say, in addressing me, I was struck by the ease with which he could communicate with me and his native intelligence with regard to his circumstances and his present treatment options. And I appreciated hearing from him and it factors in the decision I have to make here because I'm entirely satisfied that he has the capacity to engage in rehabilitation and to address concerns that he's personally aware of.

Mr. Chenier's criminal record is also contained in the presentence report. It is significant and it includes three separate related sentencings. In 1992, he was found guilty of 12 counts of robbery and he received five years jail. In 1999, 11 counts of robbery, six and a half years jail. In 2006, as has been referred to in this proceeding, four counts of either attempted robbery or robbery, totaling nine and a half years on top of three months of pretrial custody, taking the sentence very close to ten years jail.

His 2006 matter is reported at [2006] OJ 1520, a decision of Justice Woolcott of this jurisdiction, of my court, and the facts are at paragraphs two to four. I'm not going to read them aloud, but I note, as I understand the facts sir, you took a knife into a Tim Hortons, approached a clerk and requested money. She cooperated. You had the knife by your side. I note that it's very similar to what's before me.

But what was different in 2006, what was aggravating, was you later returned to a plaza trying to get a vehicle from someone, and essentially attempted to rob three people using the knife to get their vehicles. On one occasion, holding it to the throat of someone, or holding something that the victim believed was a knife, as well as physically assaulting someone else.

The features of you and your circumstances that Justice Woolcott relied upon are at paragraphs eight through 12. And they speak of you discussing being institutionalized, and her belief, not unreasonably, that what has to drive her sentence was deterring you, deterring other people in your position, and denunciating your conduct. At paragraph 12, she says:

"As I have said earlier, for whatever reason, Mr. Chenier cannot control his need to steal from others to support his habit, perhaps or for any other reason, and therefore he cannot safely be within the community."

To the degree that I can tell, it strikes me that you today have more insight than you did in 2006 at that sentencing.

It has been four years since you left the federal jail, two of those were served in a halfway house, two in our community without restrictions. This led to ultimately you spiraling, as Mr. Heighton used the word, getting into a difficult mental health circumstance. Attempting to prevent future deterioration is one of the goals of this sentencing.

Positions of the Parties

The defence recommends a sentence in the range of four to five years, less pretrial custody, which is six and a half months after credit is applied. The Crown recommends seven years. I should say I am grateful for the advocacy that I received in this case. Relevant cases were provided ahead of time and focused submissions were made. While I'm not going to be referring directly to many of the cases provided, I have reviewed them more than once and they assist, as I said to Ms. Jennison, in providing a backdrop of similar or at times dissimilar circumstances from which one can start developing a range and come to a sentencing conclusion.

I'd be remiss as well if I didn't note Ms. Jennison's thoughtful exercise of Crown discretion in lowering her submission to a range that was frankly defensible on the authorities. Such conduct is commended and it's of assistance to the court and I appreciate it.

Sentencing Principles

Justice Casey Hill, in Regina v. Dusanjh, 2006 ONSC 4317, reviewed many of the operative sentencing principles and I adopt his legal analysis entirely. In paragraphs 18 and then 20 of the judgment he said as follows:

"Robbery is punishable by a maximum of life imprisonment. Crime has been described as a serious offence. As a crime of violence, the overarching principles for a sentencing court are general deterrence, denunciation, and furtherance of the protection of the public. Employed victims working alone in convenience-like establishments, even on day shifts, are particularly exposed to robbery. In a case called Carrier, the Court of Appeal said: As this Court has often said, operators of convenience stores are a particularly vulnerable group. Mr. Dusanjh has a significant prior criminal record, which amounts to an aggravating factor on sentencing. Of course, an offender is not to be repunished for prior crimes and a sentencing court may not raise a sentence beyond what would otherwise be a fit sentence on account of a prior record. Depending upon its nature, as in the present case, a record may temper the leniency to be extended by the court, as the criminal history is highly relevant to specific deterrence, the chances of rehabilitation and a likelihood of recidivism. Of course on the facts here, Mr. Dusanjh has demonstrated that he is a threat to public safety who must be specifically deterred."

I note as well, I won't refer to it, similar language which I adopt from the Court of Appeal in R. v. Wolynec, 2015 ONCA 656, para. 117. Justice Hill ultimately imposed three years and three months on Mr. Dusanjh after trial on a gentleman who had an extensive criminal record, although, as best I can tell, not nearly as extensive as Mr. Chenier's or at least from a related perspective.

A guiding principle in sentencing jurisprudence is that of proportionality. Justice Quigley articulated that well in R. v. Goulbourne, 2017 OJ 2847, para. 32:

"When looking at the sentence of an accused person, the court must also strive to respect the principles of proportionality and consistency of sentence for similar offences and a sentence imposed in a particular case. Proportionality requires that a sentence speak out against the offence but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence."

Analysis

It seems to me the following aggravating features are present:

1. The presence of the knife.
2. The threat you made.
3. The vulnerability of the store clerk working in that context, alone, late at night. I don't frankly need an impact statement to appreciate how scary these circumstances can be for someone in that position.
4. Your past record as it relates to specific deterrence and for the reasons Justice Hill articulated. Ms. Jennison's word intractability is not a bad word, although I note you have been sentenced for your prior conduct and my intention is not to resentence you.

Mitigating Features

1. Your plea of guilt.
2. Your expression of remorse.
3. Your capacity to understand your own triggers, and what assists you in the community.
4. Your willingness to seek out treatment.
5. As I earlier referred to, your capacity, which is your ability to accept treatment and assistance with your mental health issues.

Balancing Principles

In summary, what is clear is that everyone agrees that a lengthy penitentiary sentence should be imposed. What is at issue is the specific length. I am concerned, as Mr. Heighton has articulated well, that an overly lengthy sentence will have a crushing effect on you. At the same time, I'm also concerned that despite your aging, you're returning to similar conduct, which puts vulnerable members of our community at risk. I find these are contradictory principles in the sense that they clash in this sentencing. They pull me in different directions.

I'll resolve the issue in part by returning to the fundamental statements of principle that Justice Hill articulated. What is predominant is deterrence and denunciation, protecting the public. Your rehabilitation, while still a real and valid consideration, is secondary to public safety. However, even as a secondary consideration, I accept that in many ways, despite your record, you are a strong candidate for rehabilitation and reintegration presently.

I'm hopeful you find the assistance you need and deserve in the federal system while on parole.

Disposition

I'm satisfied that a five year and a half month sentence, or 60 months and one half month, is appropriate and necessary. I will apportion it as follows:

• For the robbery count: 48 months jail on top of the pretrial time, which is 130 days credited on a 1.5 basis to 195 days, which I understand to be just over six and a half months.
• For the disguise: I accept that the aggravating feature of your disguise warrants a consecutive sentence. There will be a six month consecutive sentence for the disguise.

I want to make sure my math is correct; 48 plus six is 54, plus six and a half which is the pretrial time, is 60 and a half month, 60 months is five years. The sentence is five years. The total sentence is 60 months and a half month. Going forward, it's 54 months.

Additional Orders

DNA Order: There will be a DNA order. I know you've already provided your sample. I expect the police will confirm that and not seek a second one, but they have the authority to do so.

Section 109 Order: There's a section 109 order. You've previously been made the subject of such an order, this one is for life. I think as you well know, you're prohibited from possessing any of the firearms or related material referred to in the order that you're going to receive. I'm happy to sign a forfeiture order.

Victim Fine Surcharge: Finally, there's a $400 victim fine surcharge I'm obligated by law to impose. In the circumstances I believe I have the jurisdiction to extend the time to pay, to something commensurate with Mr. Chenier's ability to make a $400 payment, with 10 years to pay.

Conclusion

Is there anything I missed from either party's perspective?

MR. HEIGHTON: I don't believe so. I believe there's one count that's still to be addressed.

MS. JENNISON: Yes. Were the pleas entered to count one and three?

COURTROOM CLERK: That's correct.

MS. JENNISON: Okay. So then count two could be noted as withdrawn, please?

THE COURT: Good luck, sir.

MR. HEIGHTON: Thank you very much, Your Honour, and that's my only matter. If I could be addressed [sic] - or excused?

THE COURT: You may.

Transcript Ordered: July 3, 2018 Transcript Order Received: July 3, 2018 Transcript Completed: July 17, 2018 Ordering Party Notified: July 17, 2018