ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-40

DATE: 2014/12/01

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER ISAAC BENEDICT

Accused

Jason Pilon, counsel for the Crown

Kimberly Hyslop, counsel for the Accused

HEARD: November 7, 2014

REASONS FOR SENTENCE

PELLETIER, J.

[1] Mr. Christopher Benedict has pleaded guilty to charges of robbery and three counts of breach of recognizance in connection with the events of March 1, 2013. The Court must determine a fit and proper sentence having regard to the circumstances of the offense, Mr. Benedict’s circumstances and character and the objectives and principles of sentencing applicable to the charges before the Court.

Circumstances of the offense

[2] The circumstances of the offense are set out in a statement of admitted facts as follows:

“The accused Christopher Benedict was placed on a Conditional Sentence Order signed by Honourable Justice S. March on January 19, 2012 with the relevant condition of keep the peace and be of good behaviour.

The accused Christopher Benedict was placed on a J.P. Recognizance from Quebec dated July 27, 2011 with the relevant conditions, keep the peace and be of good behaviour, be at his address of 28 McCumber Road, Akwesasne, Ontario between 22:00 hrs. and 07:00 hrs., except for work purposes, formally abstain from consuming any alcoholic beverages, having in his possession or using drugs or other controlled substances, and having in his possession or carrying for any purpose whatsoever offensive or restricted use weapons or imitation weapons.

On March 1, 2013, Christopher Benedict attended 700 Fourteenth St. West, commonly known as Quickie Convenience Store in a white limo which he had rented as his means of transportation for the night.

At approximately 02:15 hrs., Benedict entered the store and asked to purchase a 25 pack of John Player’s cigarettes from store clerk, Lanthra Amit. During the transaction, Benedict while holding his right hand in his jacket, told Amit that he had a 9 mm. gun in his jacket and that he would shoot Amit if he did not provide him with the money from the cash register. As a result, Amit provided Benedict with the cash from the register totalling approximately $440.00, as he feared for his safety and believed that Benedict was carrying a concealed firearm. Benedict then left the store with the stolen $440.00 and the stolen 25 pack of John Player’s cigarettes. Benedict then entered the limo, before proceeding southbound on Brookdale Ave. Amit then immediately contacted police.

At 02:22 hrs., Cst. Mainville attended the above mentioned location and met with Amit. Amit described Benedict as approximately 5’6”, 200 lbs., wearing a black and white coat with a black and white toque. Amit also advised he believed Benedict to be native. Cst. Mainville also reviewed audio and video footage of the robbery. At no point did Amit observe a firearm and he also did not suffer any injuries. Victim Services offered but declined.

Cst. Mainville relayed the information obtained with regards to the suspect to all available officers.

At 02:24 hrs., police located a white limo southbound on Cumberland St. The vehicle was then observed pulling into the parking lot of 440 Cumberland St.

At 02:25 hrs., police observed a male exit the limo, matching the descriptors of the robbery suspect. The male then fled on foot, fleeing from police, heading towards Seventh St. West.

At 02:26 hrs., while in hot pursuit of the male, police observed him to enter the residence of 240 Yates Ave. As a result, police entered the residence and located the male, who was identified as Christopher Benedict. The owner of the residence advised police that Benedict did not reside here nor was he welcome.

At 02:31 hrs., Cst. Jarvo placed Benedict under arrest on reasonable and probable grounds for robbery. Benedict was read caution and rights to counsel. Benedict was subsequently transported to headquarters.

Upon arrival at headquarters, Benedict uttered that he had consumed multiple drugs tonight, including marihuana, cocaine and speed, as well as having consumed a 750 ml. bottle of Vodka. Benedict advised that he was in severe pain and he was very upset and irrational. As a result, paramedics attended police headquarters and transported Benedict to the hospital for examination.

Property recovered by police included $110.00 in cash, located scattered in an alley where Benedict had fled, $195.00 in cash was recovered from the limo driver, who advised that Benedict had paid him after leaving Quickie. The pack of John Player’s cigarettes was also recovered by Cst. Jarvo when performing a search of Benedict incident to arrest.

Benedict is to be held for a bail hearing upon his release from hospital.

At 09:35 hrs., Cst. Mainville met with Benedict in booking room #1, who had returned from the hospital. Cst. Mainville re-advised Benedict of all the charges he would be facing, gave him his rights to counsel and cautioned him. Benedict was also advised of Section 524 of the Criminal Code. Benedict advised he understood and wished to speak with lawyer, Bill Wade.

At 09:41 hrs., Benedict spoke to Bill Wade in private.

At 09:45 hrs., the conversation ended.

Benedict was held to await his bail hearing.

At the time of this report, the search for a possible firearm used in the robbery by Benedict has met with negative results.”

Mr. Amit, the store clerk, provided the following statement to police:

“Q. The Cornwall Community Police Service is investigating an incident which occurred on 1 Mar. 13 at approx.. 02:15 hrs. at 700 14th St. W. commonly known as Quickie. What can you tell us regarding this matter?

A. I was working at the counter when a guy entered wearing a black and white coat with a white and black winter hat. He wasn’t very tall, maybe 5’6” and approx. 200 lbs. The male approached the counter and asked for a pack of cigarettes (John Players). He then asked me if he could exchange his american money. I told him we could only take American money in the amount for the purchase. While completing the transaction, he said he had a gun, a 9 ml, and said he would shoot me in my head if I didn’t give him the money out of the cash, said that 2 or 3 times. I opened the cash and gave him the money. Then he left and I called police. I think he was native.

Q. How much money did he take?

A. I’m not sure exactly how much.

Q. Did he steal anything else?

A. Yes. He stole a 25 pack of John Players cigarettes king size.

Q. Do you have anything else to add?

A. I never saw a gun but he said he had one and had his right hand in his coat in a way that made me think he had one. I was very fearful for my life.

Q. Are you satisfied this statement written by myself and provided by you is 100% accurate?

A. Yes.”

Finally, a video capture of the event confirms the above and depicts the early stages of the transaction, having the appearance of a typical convenience store transaction, until the final moments during which Mr. Benedict’s tone, stated threats, and gestures became clearly more aggressive and confrontational. Mr. Benedict is observed to place his right hand, across his torso, into the interior of his jacket on his left side during the threat to use a “9 mil”. He threatens to shoot the store keeper in the head if he refuses to give him the money in the till. No object or shape of an object is observed or discernable.”

Mr. Benedict’s background and character

[3] Mr. Benedict is a 34 year old Mohawk from Akwesasne. He has three children from his first spouse. The children are aged 18, 14 and 10. He has two children from his second partner, aged 4 and 3. Prior to his arrest on the current charges, he lived with his parents and worked at the Seaway. At the request of counsel, a report was ordered, specifically to assist the Court in giving due consideration to Mr. Benedict’s native background, culture and heritage and in order for the sentence to comply with section 718.2(e) of the Criminal Code and the principles set out in R. v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688. The report was prepared by Ms. Lyne St. Louis.

[4] The least that can be said is that Mr. Benedict endured a very bleak upbringing, punctuated with family violence, alcohol abuse, excessive physical discipline and occasional police intervention. From an early age, Mr. Benedict recalls being led out of the house late at night by his mother so that he and his siblings could avoid his father’s anger upon his return from a bout of excessive drinking. Mr. Benedict’s mother would occasionally put the children to bed in their school clothes in case she had to escape with them during the night. Despite these efforts, Mr. Benedict was exposed to the conflict between his parents and his father’s alcohol induced rages.

[5] Mr. Benedict does however have some fond childhood memories, on occasions where his father would take him fishing or for rides in the car. Academically, Mr. Benedict’s past is also bleak. He was expelled from school at age 11 following several disciplinary measures, and on account of suspected marihuana use on school property. He tried cocaine for the first time at age 13. By then, as he was not in school, he began associating with much older boys and became involved in vandalism and theft.

[6] At age 14, Mr. Benedict re-entered the school system. This lasted 2 months. He was, by then, regularly using alcohol and marihuana. Mr. Benedict befriended his first spouse when they were both young adolescents. When they were 16, his partner became pregnant, giving birth to their first child in 1996. Their son Trent came to live with Mr. Benedict and his family as Trent’s mother finished school. Mr. Benedict and his first partner would eventually have 3 children together. They separated when Mr. Benedict was 28 years old.

[7] The Gladue report relates two episodes of unwanted sexual contact between Mr. Benedict and two male person, one when he was quite young at the hands of an older cousin, and an episode in his early 20’s following a night of excessive alcohol and drug use, for which he has no clear recollection due to his condition at the time.

[8] Mr. Benedict’s work history consists mostly of physical labour, and more recently employment with a private contractor servicing the Seaway International Bridge. At the time of the present offenses, Mr. Benedict was earning between $1,000.00 and $1,300.00 per week with that company. The Gladue report sets out that Mr. Benedict still has employment prospects with the same firm as they will be hiring again in the spring. A letter from Mr. Benedict’s employer, dated October 26, 2012 confirms Mr. Benedict’s employment with that company in the following terms:

“The purpose of this letter is to detail the involvement of Christopher Benedict with our company, Abhe & Svoboda Inc. Abhe Svoboda Inc. is a construction contractor based in Prior Lake, Minnesota, and has performed work throughout the entire United States, as well as international projects throughout the world. The purpose of this letter is to provide objective observations of the character and work performance of Mr. Christopher Benedict on Phase 5 of the Seaway Bridge coating project.

Mr. Benedict was hired as a painter/blaster/rigger in July of 2012, and initially received a wage of $18.44 CAD per hour. After working a little over a week he was given a raise due to his display of reliability, extraordinary effort, and high degree of competence during the initial rigging stages of the bridge. Mr. Benedict currently earns a wage of $20.00 CAD and works an average of 50 to 65 hours a week.

Throughout the duration of this project Mr. Benedict has proven to be a loyal and reliable worker for Abhe & Svoboda. Mr. Benedict has displayed significant progress in his job performance, as well as his cooperation with fellow employees. As an American contractor working on native land, located between the United States and Canada, Mr. Benedict has also served as a great liaison between us and the Akwesasne community.

We strongly believe in Mr. Benedict’s ability to perform high quality work, and after this project we invite him to apply to work at one of our other sites. We see Mr. Benedict as a valuable employee, and we are encouraged by his strides of personal development on this project. We look forward to his continuous development of character and trade skill, as well as working with him on future projects.”

Criminal history

[9] Mr. Benedict has a fairly extensive criminal record. The first conviction was entered in 1994 for an assault committed when Mr. Benedict was a young person under the Young Offenders Act. Since then, he has amassed 54 convictions, including the present offenses. The convictions relate to property offenses including thefts and break and enters, driving offenses, among them dangerous driving, impaired driving, failing to remain and driving while disqualified, violent offenses including assaults, threats and assaults against police officers, and offenses against the administration of justice such offenses as failing to comply with bail conditions, probation orders, and conditional sentence orders, and firearms prohibitions. There are no significant gaps in Mr. Benedict’s criminal record over the past 20 years. At the time of the commission of the present offenses on March 1, 2013, Mr. Benedict was bound by the terms of an 18 month conditional sentence pronounced on January 19, 2012 for the offenses of breach of undertaking and breach of probation, offenses committed in late 2011. The balance of that sentence was converted to a jail term. Mr. Benedict has therefore been in custody, for the present offenses, since the termination of the existing conditional sentence order on July 20, 2013. He has accordingly served slightly more than 16 months in pre-trial custody on the present charges. Counsel agree to the application of the usual formula for pre-trial custody calculations. Having served 16 months of pre-trial custody, Mr. Benedict can be considered to have served a 2 year penitentiary sentence in practical terms awaiting the present disposition. The pre-trial detention has however not been in a penitentiary setting but rather a regional remand facility.

Future plans

[10] Once released, Mr. Benedict intends on pursuing a drug and alcohol rehabilitation program in a neighbouring native community and eventually re-integrating the Akwesasne territory, where he plans in the short term, to live with his parents. He considers his relationship with the mother of his two younger children to be over as it is counterproductive to his prospects of pursuing a peaceful and pro-social existence, going forward. The present offenses were committed shortly after Mr. Benedict came to the realisation that his relationship with the mother of his 2 younger children was over. Mr. Benedict wants to play a larger, positive role in the lives of his children. He is said to regret the lost time and wants specifically to mentor his oldest son, now 18. Mr. Benedict states that he now fully embraces his native heritage and wants to find a new identity for himself, in a sense by going back to his origins. Mr. Benedict chose to address the Court prior to the sentence hearing, as he is entitled. He expressed shame and remorse for his actions and sympathy for the store owner he robbed. Mr. Benedict made a rather interesting observation, stating that it must be difficult for the Court to distinguish between conveniently expressed remorse and genuine, heart-felt remorse. Indeed it is. Having received 3 prior conditional sentences for terms of up to 22 months in relation to fairly serious offenses Mr. Benedict is well situated to understand the skepticism that could be expressed about his current resolve. Unsuccessful prior attempts at rehabilitation and abstinence from alcohol and drugs do little to quell the skepticism that can exist concerning Mr. Benedict’s resolve and sincerity, difficult as those efforts often prove to be.

The positions of counsel

[11] The offense of robbery carries a maximum sentence of life imprisonment. The defence is seeking an order of time served and a rehabilitative sentence in the form of a suspended sentence and probation with the usual constraints and obligations. The prosecution submits that a further period of 1 to 2 years in jail is necessary to achieve the denunciatory and deterrent objectives in sentencing those who under cover of night prey upon largely unprotected victims.

Sentence principles

[12] In any sentence, the court must consider and give due importance to the objectives of denunciation, deterrence, separation of the offender where necessary, rehabilitation, reparation of harm, and the promotion of a sense of responsibility in the offender. The least restrictive sanctions which achieve the objectives are to be employed. Offenses which compromise personal or public safety are typically met with sentences focused on denunciation and deterrence, usually in the form of incarceration. The Court must nonetheless consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.

Jurisprudence

[13] The weight of the authorities suggests that robbery, defined as theft accompanied by a threat to use a firearm, requires by way of sentence a disposition focused primarily on deterrence and denunciation, usually in the form of a significant jail term, particularly in cases involving late night robberies of largely defenseless victims such as store clerks, gas station attendants and cab drivers. The general sentence range for offenses and offenders similarly situated to Mr. Benedict’s case is 18 months to 4 years.

R. v. Swanson [2002] O.J. No. 342 (S.C.J.)

R. v. R.J.W. [2003] B.C.J. No. 2372 (Prov. Ct.)

R. v. Kaddoura [2003] O.J. No. 224 (O.C.A.)

R. v. P.T.C . [2000] B.C.J. No. 969 (B.C .S.C.)

R. v. Brown [2001] O.J. No. 1955 (O.C.J.)

R. v. B.J.C.O. [2003] B.C.J. No. 1354 (Prov. Ct.)

R. v. Cotterell [2004] O.J. No. 3801 (O.C.A.)

R. v. Brown [2001] O.J. No. 4924 (O.C.A.)

R. v. Bell [2006] O.J. No. 4785 (O.C.J.)

R. v. Breen [1982] N.J. No. 43 (Nfld.C.A.)

R. v. Lee [1998] O.J. No. 2881 (O.C.A.)

R. v. Grujic [2009] O.J. No. 3228 (S.C.J.)

R. v. W.T.K. [2012] O.J. No. 1703 (Ont. C.J.)

R. v. Kipling [2014] M.J. No. 82 (Man.Q.B.)

The range established by the above cases is largely dependent on such factors as age, prior criminal history, a plea of guilty, the genuine expression of remorse, work history and community and family support.

[14] The case law on the application of section 718.2(e) of the Criminal Code directs the following analysis:

R. v. Gladue 1999 679 (SCC), [1999] S.C.J. No. 19 at paragraphs 37, 68, 70, 75 and 92:

“37. The next question is the meaning to be attributed to the words “with particular attention to the circumstances of aboriginal offenders”. The phrase cannot be an instruction for judges to pay “more” attention when sentencing aboriginal offenders. It would be unreasonable to assume that Parliament intended sentencing judges to prefer certain categories of offenders over others. Neither can the phrase be merely an instruction to a sentencing judge to consider the circumstances of aboriginal offenders just as she or he would consider the circumstances of any other offender. There would be no point in adding a special reference to aboriginal offenders if this was the case. Rather, the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it is against a general direction to consider “the circumstances” for all offenders, is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.

68. It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.

69. Closely related to the background and systemic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people. A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. The aims of restorative justice as now expressed in paras. (d), (e), and (f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2(e).

70. The role of the judge who sentence an aboriginal offender is, as for every offender, to determine a fit sentence taking into account all the circumstances of the offence, the offender, the victims, and the community. Nothing in Part XXIII of the Criminal Code alters this fundamental duty as a general matter. However, the effect of s. 718.2(e), viewed in the context of Part XXIII as a whole, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Section 718.2(e) requires that sentencing determinations take into account the unique circumstances of aboriginal peoples.

71. Section 718.2(e) requires the sentencing judge to explore reasonable alternatives to incarceration in the case of all aboriginal offenders. Obviously, if an aboriginal community has a program or tradition of alternative sanctions, and support and supervision are available to the offender, it may be easier to find and impose an alternative sentence. However, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative. For all purposes, the term “community” must be defined broadly so as to include any network of support and interaction that might be available in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.”

R. v. Wells 2000 SCC 10, [2000] S.C.J. No. 11 at paragraphs 38-42:

“38. In order to provide guidance to sentencing judges as to the manner in which the remedial purpose of s. 718.2(e) could be given effect, the reasons in Gladue set out a framework of analysis for the sentencing judge. In considering the circumstances of aboriginal offenders, the sentencing judge must take into account, at the very least, both the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender’s conduct, and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection (Gladue, at para. 66). In particular, given that most traditional aboriginal approaches place a primary emphasis on the goal of restorative justice, the alternative of community-based sanctions must be explored.

39. In the search for a fit sentence, therefore, the role of the sentencing judge is to conduct the sentencing process and impose sanctions taking into account the perspective of the aboriginal offender’s community. As was noted in Gladue, it is often the case that imposing a custodial sentence on an aboriginal offender does not advance the remedial purpose of s. 718.2(e), neither for the offender nor for his community. This is particularly true for less serious or non-violent offences, where the goal of restorative justice will no doubt be given greater weight than principles of denunciation or deterrence.

40. However, the scope of s. 718.2(e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to those sanctions that are “reasonable in the circumstances”. Again, as was expressly stated in Gladue, the Court in no way intended to suggest that as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such as denunciation and deterrence. Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencing process, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and the community, the sentence is fit in the circumstances.

41. I should take this opportunity to stress that the guidelines as set out in Gladue, and reiterated in the present appeal, are not intended to provide a single test for a sentencing judge to apply in determining a reasonable sentence in the circumstances. Section 718.2(e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community.

42. Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance.”

R. v. Ipeelee 2012 SCC 13, [2012] S.C.J. No. 13 at paragraphs 84-85:

“84. The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, “appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments -- paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2008-2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (Gladue, at para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.)).

85. Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear, at para. 82, that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the unique situation of the Aboriginal Offender; the only discretion concerns the determination of a just and appropriate sentence.” Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.”

Conclusion

[15] This case involves Mr. Benedict, while serving a conditional sentence, threatening to blow the victim’s head off with a 9mm gun during a corner store robbery, late at night. A significant jail sentence is inevitable. The more perplexing question is where on the scale of sentencing Mr. Benedict is situated given his plea of guilty, his pre-trial custody equivalent to 2 years, and his expressed desire to re-engage in his community and culture in a peaceful and productive manner. I have concluded that in the specific circumstances of this case, the strictly punitive object