Ontario Court of Justice

Date: October 31, 2022 Court File No.: 21-38103158

Parties

Between: Her Majesty The Queen And: Mickey Berube

Presiding Judge

Justice Angela L. McLeod

Hearing Dates

Guilty pleas January 17, 2022; sentencing hearing August 15, 2022

Counsel

For the Crown: Ms. Safar For the Defendant: Mr. Molloy

McLeod J.:

Overview

[1] On the morning of day one of a preliminary inquiry, Mr. Berube entered guilty pleas to six counts of robbery, contrary to s. 344(1)(b) of the Criminal Code.

[2] Seven Circle K convenience stores and one Petro Canada Gas station were robbed between May 31, 2021, and July 1, 2021, in the City of Barrie.

[3] Mr. Berube brandished a knife on each occasion. He was wearing a ‘COVID mask’ on 5 occasions and a bandana face covering on one occasion.

[4] Each robbery occurred after midnight and in the early morning hours of the day.

[5] Cigarettes and monies were stolen. The sums were between $50 and $200.

[6] On the third occasion Mr. Berube threatened to stab the employee if he called the police. On the fifth occasion he threatened to stab and kill the employee when demanding the monies.

[7] In each occurrence, security video showed the culprit leaving in a silver Mazda 5. The defendant was identified as the culprit.

[8] The sentencing hearing was delayed while awaiting the authoring of a Gladue [^1] Report.

Position of the Parties

[9] At the time of the sentencing hearing, the Crown sought a global sentence of 6 years less presentence custody (2190 less 409 enhanced to 794 for a remanent sentence of 1396), a DNA order, a s. 109 order for 10 years and a s. 743.21 order.

[10] The Crown is seeking a sentence of 365 days per count.

[11] The defence sought a remanent sentence of 731 days in addition to credit for 794 days presentence custody. The goal for the defence was a remanent sentence of 2 years plus one day for a resultant penitentiary sentence. The defence made no submissions regarding the ancillary orders.

[12] The defence is seeking a sentence of 254 days per count.

Presentence Custody Credit

[13] The parties were seeking additional presentence custody credit of 180 days for Duncan [^2] credit, founded upon the COVID-19 pandemic restrictions and inability to attend a family funeral (again due to COVID-19 pandemic restrictions and the inability to provide a temporary escorted absence).

[14] The formula utilized is contrary to the case law. Duncan credit does not produce a mathematical enhancement beyond Summers [^3], rather it can reduce the overall sentence imposed. Presentence custody credit should be calculated at the Summers rate of 1.5 to 1.

[15] As such, the presentence custody credit is 488 days (from July 1, 2021, to October 31, 2022) multiplied by 1.5 for an enhanced credit of 732 days.

Aggravating and Mitigating Factors

[16] The following factors are aggravating on sentence:

(1) A weapon was brandished (2) The convenience store clerks are a vulnerable population (3) The defendant was masked (4) Threats were made (5) The robberies were planned, the defendant came with a bag and a mask (6) The level of violence was escalating, from no threat to threat to stab, to threat to kill

[17] The following factors are mitigating on sentence:

(1) The defendant has entered pleas of guilt (somewhat lessened by the morning of the preliminary hearing timing and that he was captured on security footage in each instance) (2) The defendant has no prior criminal record (3) The offences were committed in the throws of a drug addiction relapse (4) The offences were part of a spree (May 30th, one week break; June 5, 6, 7, two-week break, June 20, two-week break, July 1st) (5) The defendant’s expression of remorse

Circumstances of the Defendant

[18] A presentence report [^4] was filed as Exhibit #1. Letters of support were filed as composite Exhibit #2. A Gladue letter was filed as Exhibit #3.

[19] The salient points within the PSR are summarized below:

(1) His father was a drug addict (2) He had an unstable upbringing (3) His relationship with his mother was unhealthy (4) He was permitted to do whatever he wanted, including staying out late and using drugs and alcohol within the home (5) He identifies as Indigenous on his father’s side; however, he was not raised following any of the cultural teaching or practices (6) He does not have any close personal relationships, and no support in the community (7) He previously attended a residential treatment program for drug addiction (8) He maintained sobriety for six years (9) He completed high school and took two courses at the college level, including Indigenous wellness and addictions prevention, as well as receiving a social worker diploma (10) He was employed as a frontline worker in the men’s shelter at the Salvation Army Bayside Mission Center from October 2019 to March 2020. He found this work to be “draining” and had “compassion fatigue”. He lost his job due to the COVID-19 pandemic, and relapsed and returned to drug use (11) He has been taking suboxone while in custody, as well as seeing the mental health nurse monthly and the forensic psychiatrist every three months. He has been diagnosed with ADHD, Depressive Disorder and Opioid Use Disorder. Medication has been prescribed for his mental health issues.

[20] A Gladue report was able to be prepared. Mr. Berube identifies as an Indigenous person and while in custody has been accessing services and supports from the Enaahtig Healing Lodge and Learning Centre. Their Release from Custody Program is willing to continue to provide support post release from custody. He also received services from the Native Inmate Liaison Officer Program. He participated in smudging ceremonies and ‘native circles’ when offered (limited due to COVID restrictions). He has completed an application for the Red Road to Recovery Program.

[21] Mr. Berube completed several Independent Educational Sessions: “Substance Use”; “Anger Management”; “Thoughts to Action”; “Managing Stress”; “Use of Leisure Time”; “Understanding Feelings”; “Looking for Work”; “Recognizing Healthy Relationships”; “Planning for Discharge”; “Supportive Relationships”; “Changing Habits”; “Goal Setting”; “Problem Solving”.

Analysis

[22] The parties referred to only one case, R. v. Asif, 2020 ONSC 1403. They submit that the range for this type of offence is between 12 and 24 months.

[23] Asif, supra, dealt with bank robbery. Mr. Asif utilized a firearm, which was discharged. He had a lengthy criminal record.

[24] Justice Stribopoulos examined the range of sentences for the offence of robbery, noting at paragraph 36, that “the range of sentence available for robbery reflects the varying forms the crime may take.”

[25] Import to the case at bar, Stribopoulos J. wrote that:

39 Depending on the circumstances of the offence and the offender, the range of sentences for robbery can vary widely from non-custodial sentence to life imprisonment.

40 Employees of small commercial establishments like variety stores and gas stations, which are open late at night, have cash on hand and often work alone, are especially vulnerable to robbery. Given this, when sentencing offenders who target such victims, deterrence and denunciation are the preeminent sentencing objectives. The Court of Appeal has noted that such robberies “will attract heavy sentences”.

41 In such case, even for youthful first offenders, absent other aggravating factors, the Court of Appeal has endorsed sentences between one year and two years less one day of imprisonment.

60 In imposing consecutive sentences, the court must ensure that the combined sentence is not unduly long or harsh; Criminal Code, s. 718.2(c). The global sentence must not exceed the offender’s overall culpability. It must be just and appropriate.

[26] Having considered the aggravating and mitigating factors, the range articulated in Asif, supra, and the sentencing principles of restraint, deterrence, denunciation and totality, the sentence is as follows:

1. May 30, 2021 – robbery – would have been 365 but reduced to 305 for Duncan credit, a DNA order, a s. 109 order for 10 years, a s. 743.21 order
2. June 5, 2021 – robbery – would have been 425 but reduced to 365 for Duncan credit, to be served consecutive to count #1, a DNA order, a s. 109 order for 10 years, a s. 743.21 order
3. June 6, 2021 – robbery – 365 concurrent to count #2, a DNA order, a s. 109 order for 10 years, a s. 743.21 order
4. June 7, 2021 – robbery – 365 concurrent to count #2, a DNA order, a s. 109 order for 10 years, a s. 743.21 order
5. June 21, 2021 – robbery – would have been 450 but reduced to 420 for Duncan credit, less 280 days PSC enhanced to 420 days, leaving a remnant sentence of zero days
6. July 1, 2021 – robbery – would have been 425 but reduced to 395 for Duncan credit, less 208 PSC presentence custody days enhanced to 312 days, leaving a remnant sentence of 83 days
7. The total sentence is thus 1485 less 488 days presentence custody enhanced to 732 days, for a remnant sentence of 753 days plus ancillary orders.

Released: October 31, 2022. Signed: Justice Angela L. McLeod

[^1]: R. v. Gladue, [1999] 1 S.C.R. 688 [^2]: R. v. Duncan, 2016 ONCA 754. See also R. v. Marshall, 2021 ONCA 344 [^3]: R. v. Summers, 2014 SCC 26 [^4]: The investigating officer was canvased. She offered commentary regarding the defendant and opined as the appropriate sentence to be imposed. Neither is appropriate and neither was considered.