Court Information

Ontario Court of Justice

Date: July 25, 2018

Court File No.: Toronto, Old City Hall (18-15003031)

Parties

Between:

Her Majesty the Queen

— And —

Anthony Fitzgerald McEwan

Before the Court

Justice: John North

Heard: July 11, 2018

Reasons for Sentence Released: July 25, 2018

Counsel

Ms. A. Leggett — Counsel for the Crown

Mr. J. Chapnick — Counsel for Anthony McEwan

I. INTRODUCTION

[1] On July 11, 2018, the offender pleaded guilty to two counts of robbery (counts 1 and 3). He also agreed that the facts related to a third robbery count (count 2) could be considered by the court in sentencing.

II. THE OFFENCES

Count 1

[2] On April 18, 2018, the offender entered a CIBC branch located at 1129 Bloor Street West in Toronto. He handed a teller a note which read, "Follow my instructions, this is a robbery. Hand over the cash and no dye-pack and we will all walk away alive." The offender verbally instructed the teller to, "hurry up, no dye-pack." The teller placed $865 in cash in a dye-pack and handed it to the offender. The offender then left the bank. During this robbery, the offender's face was not concealed or disguised. A detective with the Toronto Police Hold-Up Squad reviewed the recordings from the bank's security cameras and recognized the offender from a previous investigation.

Count 2

[3] On April 20, 2018, the offender entered a National Bank branch located at 747 College Street in Toronto. He handed a teller a note. The teller believes that the note read, "$50 bills if you cooperate." The teller understood that this was a robbery and asked the offender what he wanted her to do. The offender told her that he wanted a stack of $50 bills. After the teller attempted to stall the offender, he shook the hold-up note and said give me the money. The teller gathered a small amount of cash ($242) and gave it to the offender. The offender took the money and left the bank. During this robbery, the offender's face was not concealed or disguised.

Count 3

[4] On April 21, 2018, the offender entered a BMO branch located at the Dufferin Mall in Toronto. He approached a teller and handed her a note. The teller could not remember the specific words on the note but recalls that the note made it clear that this was a robbery. The offender told the teller a few times to "do what the note said." The teller told the offender that she needed keys to access cash. The teller was able to tell the bank manager that they were being robbed. The teller gave the offender $250 in cash and he fled the bank. During this robbery, the offender's face was not concealed or disguised.

[5] On April 23, 2018, members of the Toronto Police Hold-Up Squad executed a search warrant at the offender's home. The offender was home at the time. Police officers seized clothing that the offender was wearing during the robberies. After he was arrested, the offender provided an inculpatory statement.

III. THE OFFENDER

[6] The offender is 57 years old. He was born in Toronto. He states that he came from a good family. He graduated from high school. He has no dependents.

[7] The offender has an extensive criminal record. Since 1980, he has been convicted of criminal offences over 50 times. On five previous occasions he was recommitted as a statutory release violator. Prior to 2018, he had been convicted of robbery on five occasions and armed robbery twice.

[8] In 2014, he was convicted of two counts of robbery and sentenced to four years' imprisonment, less credit for pre-trial custody. In 2001, the offender was sentenced to six years' imprisonment for two counts of robbery that were served concurrently to each other. In 1997, he was sentenced to five years' imprisonment for one count of robbery and two counts of armed robbery that were served concurrently to each other.

[9] Shortly before he was arrested in April 2018, he had been living at a halfway house. He was employed at a Cadbury's Factory and was earning $19 an hour.

[10] The offender has long struggled with addictions to alcohol and crack cocaine. As a result of these addictions he has lost touch with his family. He also has some mental health issues.

[11] The offender told the court that, having spent so many years of his life in a custodial setting, he gets scared when he is outside the structured environment provided by a penitentiary or a half-way house.

[12] He has been in custody since April 23, 2018.

IV. THE POSITIONS OF THE PARTIES

[13] Crown counsel took the position that the appropriate sentence would be eight years' imprisonment, less credit for pre-trial custody.

[14] Counsel for the offender took the position that the sentence should be six years' imprisonment, less credit for pre-trial custody.

V. THE LEGAL PRINCIPLES

[15] In determining a fit and just sentence, a sentencing judge must apply the principles, purpose and objectives of sentencing as outlined in the Criminal Code.

[16] There is no such thing as a single appropriate sentence for a particular crime. Sentencing "is a highly individualized process": R. v. Suter, 2018 SCC 34, at para. 4. As Doherty J.A. explained in R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.), at para. 87: "the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender."

[17] The case-specific nature of sentencing is reflected in the fundamental principle of sentencing in section 718.1 of the Criminal Code:

"A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[18] In R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.), at paras. 91-92, Doherty J.A. provided the following guidance on the meaning of the terms "gravity of the offence" and the "degree of responsibility of the offender":

"[90] The 'gravity of the offence' refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2 (a).

"[91] The 'degree of responsibility of the offender' refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility."

[19] In R. v. Priest (1996), 30 O.R. (3d) 538 at pp. 546-47 (C.A.), the proportionality requirement was described by Rosenberg J.A. as follows:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[20] While proportionality is the fundamental principle of sentencing, other principles must also be considered when determining the appropriate sentence. In this case, a number of sentencing principles contained in section 718.2 are implicated, including:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[21] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing:

"The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community."

[22] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43, LeBel J. recognized that "[n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."

[23] In R. v. Hamilton and Mason (2004), 72 O.R. (3d) at para. 102, Doherty J.A. explained that, "The relevance and relative importance of each of the objectives identified in s. 718 will vary according to the nature of the crime and the circumstances of the offender." Where an "offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s.718."

[24] In R. v. Miller, Hill J. addressed the seriousness of the offence of robbery and reviewed a number of authorities which demonstrate that harsh sentences have been imposed on repeat robbery offenders:

Robbery is punishable by a maximum sentence of life imprisonment. Not surprisingly, the crime has been described as a "serious offence": R. v. Shiwprashad, 2015 ONCA 577, at para. 72. As an inherently violent crime, the overarching principles for a sentencing court in robbery cases, committed to protecting the public, are general deterrence and denunciation: R. v. Wolynec, 2015 ONCA 656, at para. 117.

Particularly severe sentences have been accepted as fit dispositions for repeat robbery offenders, recidivists who have demonstrated themselves to be at high risk of re-offending: see Wolynec; R. v. Hayes, 2016 ONCA 47; R. v. Johnson, 2012 ONCA 339; R. v. Peyachew, 2016 SKCA 21.

In recognizing the appropriateness of substantial penitentiary sentences for robbery crimes, even where no violence is inflicted or weapon produced, Watt J.A. made the following observation in Wolynec at para. 111:

It is of no moment to these authorities that no violence was used or threatened or only a small amount of money obtained. The offences were planned and executed by a dedicated recidivist...

[25] In R. v. Walker, 2010 ONCJ 338, at para. 12, West J. reviewed sentencing decisions involving offenders who robbed multiple banks and concluded that there is a "wide disposition range with the individual facts of each case being determinative."

[26] In R. v. Sadikov, 2018 ONCA 609, at para. 13, Nordheimer J.A. provided the following guidance on when sentences should be concurrent or consecutive:

"Generally, sentences for offences arising out of the same transaction or incident should be concurrent. In reaching that determination, the court must determine if 'the acts constituting the offence were part of a linked series of acts within a single endeavor'. If so, concurrent sentences are appropriate."

[27] Where an offender has committed a number of "similar, continuous and recurring offences with the same gravamen within a sustained and relatively short period of time" a court may view the offending conduct as "sufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences": R. v. Kozussek, 2013 MBCA 52. However, as the Manitoba Court of Appeal concluded in R. v. Lagimodiere, 2008 MBCA 137, at para. 26, even where offences are sufficiently interconnected to attract concurrent rather than consecutive sentences:

"…[w]hen dealing with an offender who commits multiple offences over a short period of time, a delicate balancing act is required so that, while maintaining the essential principle of proportionality, the accused does not get a 'free ride'."

VI. ANALYSIS

[28] The offences committed were serious. Robbery is punishable by life imprisonment. These offences are inherently violent crimes. The bank employees and customers were vulnerable and likely believed they were exposed to potential serious personal harm.

[29] The Court of Appeal has concluded that, "while 'note passing' robberies may not be as violent as other forms…they remain a very serious crime capable of instilling fear and trauma into victimized bank tellers": R. v. Johnson, 2012 ONCA 339, at para. 13.

[30] While all bank robberies are serious, a court must consider all relevant case-specific factors when assessing the gravity of an offence and the moral culpability of an offender. The fact that the offender robbed three banks over the course of four days is relevant to an assessment of his moral blameworthiness.

[31] The offender did not brandish a weapon during any of these robberies. He did not make any effort to disguise his identity. These offences were committed in an unsophisticated manner. Having said that, as the Saskatchewan Court of Appeal noted in R. v. Peyachew, 2016 SKCA 21, at para. 51, "the case law indicates that offender ineptitude features prominently in many bank robberies."

[32] The offender's addictions, mental health issues and his difficulty in adjusting to an unstructured environment after he had been released from a half-way house likely played a role in the commission of these offences. In my view, his addictions and mental health issues are relevant considerations in sentencing: R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. (3d) 643 (C.A.), at para. 33; R. v. Ellis, 2013 ONCA 739, at paras. 114-128; R. v. Sharma, 2018 ONSC 1141, at para. 170. However, these considerations "cannot generally be used to avoid what is otherwise a fit and proper sentence": R. v. Heron, 2017 ONCA 441, at para. 25.

[33] After being released from the penitentiary in 2016, the offender attempted to work on his addictions and mental health issues. For a short period of time it appears that he was successful. Based on his comments at the sentencing hearing, he has a desire to address these problems. He believes that while he made some progress prior to committing these offences, he fell back after he left the structured environment of the half-way house in late 2017.

[34] The offender's desire to change must be considered in light of his age and long criminal record. He is far from a youthful first offender. The offender does not present as a promising candidate for rehabilitation. However, his prospects for rehabilitation cannot be completely discounted. A sentencing judge must consider rehabilitation in determining the appropriate length of the sentence. In R. v. Johnson, 2012 ONCA 339, at para. 29, the Court endorsed the following conclusion:

"…[e]ven where there is little evidence of positive rehabilitative prospects, total sentences should not be so long as to crush optimism about eventual re-integration."

[35] The offender's related criminal record increases his personal responsibility for the crimes and is also an aggravating factor in sentencing: R. v. Larche, [2006] 3 S.C.R. 762, at para. 28. However, as Hill J. recognized in R. v. Miller:

"Of course, an offender is not to be re-punished 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, the 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 the likelihood of recidivism."

[36] In this case, the most significant mitigating factor is the offender's guilty plea, which was entered at an early stage of the proceedings.

[37] In some very limited respects, the circumstances of this case are similar to the circumstances in R. v. Johnson, 2012 ONCA 339. The modus operandi for both offenders is known as a "note pass" robbery. Neither Johnson nor the offender wore disguises during the robberies. Both offenders were men in their mid-50s. Their crimes were, at least in part, related to addiction issues. To be clear, I am not using Johnson as a baseline from which to determine the appropriate length of sentence. There are critical differences between the two cases. Crown counsel fairly acknowledges that the facts in the offender's case are easily distinguishable from the facts in Johnson. Most significantly, Johnson committed far more bank robberies than the offender. Johnson robbed 26 banks over a 14-year period. In the end, the Court of Appeal in Johnson reduced the global sentence for 15 bank robberies from 23 years to 20 years.

VII. THE SENTENCE

[38] Deterrence, denunciation and protection of the public are paramount considerations in this case. A significant sentence is required.

[39] In determining the length of the sentence I have taken into account the mitigating impact of the offender's guilty plea and the facts that I previously addressed which slightly reduce the gravity of the offences and his moral culpability.

[40] Given the circumstances and timing of these robberies, I am satisfied that the offences were part of a linked series of acts. Therefore, the imposition of concurrent sentences is appropriate. In any event, whether the sentences had been concurrent with, or consecutive to, each other, given the principle of totality, the global sentence would have been the same.

[41] Without taking into account credit for pre-trial custody, I conclude that the appropriate total sentence is six years' imprisonment.

VIII. CONCLUSION

[42] The offender is sentenced as follows:

Count number one – with enhanced credit for 141 days of pre-sentence custody, a further sentence of five years and 224 days imprisonment is imposed on count one.

Count number three – with enhanced credit for pre-sentence custody, a further sentence of five years and 224 days imprisonment is imposed on count three, to be served concurrently to the sentence for count one.

[43] In addition, there will be a lifetime weapons prohibition pursuant to section 109(3) and an order pursuant to section 487.051(1) requiring the offender to provide a DNA sample. There will also be an order pursuant to section 737(1) requiring the offender to pay a victim surcharge in the total amount of $400.

Footnotes

[1] Pursuant to section 725(1)(b.1) of the Criminal Code. See: R. v. Garcia and Silva, [1970] 3 C.C.C. 124 (Ont. C.A.); R. v. Edwards (2001), 54 O.R. (3d) 737 (C.A.), at paras. 32-33; R. v. Howlett (2002), 163 O.A.C. 48 (C.A.), at paras. 10-14; R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 16-19; R. v. Johnson, 2015 ONSC 80, at paras. 28-34.

[2] See also: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 54.

[3] See also: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

[4] R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.), at para. 88. See also R. v. Saikaley, 2017 ONCA 374, at para. 157; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

[5] See also: R. v. Arcand (2010), 2010 ABCA 363, 264 C.C.C. (3d) 134 (Alta C.A.), at paras. 56-58.

[6] See also: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[7] For a court to take into account aggravating facts, those facts must be relevant to the gravity of the offence or the moral blameworthiness of the offender: R. v. Suter, 2018 SCC 34, at para. 40. See also: R. v. Arcand (2010), 2010 ABCA 363, 264 C.C.C. (3d) 134 (Alta. C.A.) at para. 60.

[8] The principle of totality is "imbedded" in s. 718.2(c) of the Criminal Code and is an "important component of the fundamental principle of proportionality": R. v. Johnson, 2012 ONCA 339, at paras. 16-18. See also R. v. Saikaley, 2017 ONCA 374, at paras. 158, 161.

[9] R. v. Hamilton and Mason, (2004), 72 O.R. (3d) 1 (C.A.), at para. 103.

[10] See also: R. v. Mohammed, 2012 ONSC 3072 at para. 19; and R. v. Savard-Cote, 2015 ONSC 7081, at para. 23.

[11] See also: R. v. Peyachew, 2016 SKCA 21, at paras. 22-29.

[12] In Sadikov, the Court explained there is an exception to this rule. That exception has no application in this case. See Section 718.3(4)(i) of the Criminal Code.

[13] See also: R. v. Johnson, 2015 ONSC 80, at para. 43.

[14] See also: R. v. MacCormack, 2009 ONCA 72, at para. 88.

[15] In R. v. Miller, Hill J. observed that in R. v. Peyachew, 2016 SKCA 21, the Court, "recognized, but gave little weight to, the professionalism with which the offender's crimes were carried out."

[16] See: R. v. Miller.