R. v. Rousseau, 2019 BCPC 178 (CanLII)
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2019 BCPC 178 |
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Date: |
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File Nos: |
251066-1, 248439-1, 250531-1, 25430 |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
MICHAEL RICHARD ROUSSEAU
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE R.P. HARRIS
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A. De Smet |
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Counsel for the Defendant: |
D. Ferguson |
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Vancouver, B.C. |
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Date of Hearing: |
June 21, 2019 |
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Date of Sentence: |
July 31, 2019 |
OVERVIEW
[1] Mr. Rousseau pled guilty to the following; 3 robberies, a break and enter, a mischief, and possession of identity documents. This Court must identify a sentence that is fit and appropriate. The Crown argues that a fit sentence is a global sentence of 3 years for the robberies with consecutive sentences of 2 months for the break and enter, 1 month for the mischief, and 1 month for the possession of identity documents. As such, a total sentence of 3 years and 4 months less pre-sentence time served. Counsel for Mr. Rousseau argues that a fit sentence is a global sentence of 18 to 20 months less Mr. Rousseau’s pre-sentence custody credit.
CIRCUMSTANCES OF THE OFFENCES
Information 251066 – Break and Enter
[2] On March 10, 2015, Mr. Rousseau broke into The Silver Gallery Jewellery Store located on Water Street. Mr. Rousseau entered the premise by gaining entry to a common area and kicking through the drywall. Once inside, Mr. Rousseau broke display cases and he stole jewellery valued at approximately $10,000.00.
[3] Investigators found blood on a display case and in May of 2015, the police matched the extracted DNA to Mr. Rousseau’s DNA which was registered in the national data bank. The police then obtained a warrant for Mr. Rousseau’s DNA and they did not execute the warrant until July 2017. On February 23, 2018, Mr. Rousseau was charged with the break and enter.
Information 248439 – Robberies
Count 1
[4] On July 21, 2017, at 1:40 pm, Ms. Estrada was working at a ticket and tour business in Vancouver when Mr. Rousseau entered the store. He asked about some of the merchandise that was for sale and he left only to return about 5 minutes later.
[5] When Mr. Rousseau returned he was wearing a hoodie and carrying a backpack. He positioned himself near Ms. Estrada and he did not say anything. Ms. Estrada asked if she could assist him and Mr. Rousseau opened his backpack and he said give me your money. Ms. Estrada told Mr. Rousseau that she did not have any cash and Mr. Rousseau responded that she must have cash. Ms. Estrada then opened the cash register and showed Mr. Rousseau that she did not have any cash. Mr. Rousseau responded by placing his backpack on the counter and he instructed Ms. Estrada to dump the coins into his backpack. At this point Ms. Estrada saw that the backpack contained a large knife. She therefore poured approximately $30.00 in change into the backpack. A man who was outside then knocked on the window and Mr. Rousseau apologized to Ms. Estrada and him with the man who was outside.
[6] Mr. Rousseau was identified through a photographic line-up and video.
Count 2
[7] At 5:26 pm, Mr. Kognati was working at a gas station that had a convenience store. The store was busy and Mr. Rousseau entered wearing sunglasses. He approached the counter and placed his backpack on the counter. Mr. Rousseau then showed Mr. Kognati a large butcher knife that was inside the backpack and said, “This is a robbery… I am going to kill you just give me the money.” Although frightened, Mr. Kognati refused to give Mr. Rousseau any money. Mr. Rousseau then asked for lottery tickets, but Mr. Kognati refused. Mr. Rousseau fled empty handed.
Count 3
[8] At 5:23 pm, Mr. Rousseau entered a McDonald’s restaurant wearing an Incredible Hulk mask. He immediately went behind the service area to the cash registers and approached Ms. Verma who was working as a cashier. Mr. Rousseau pulled out a large butch knife and he waved it at Ms. Verma and said, “I will kill you right away, open the till, do not try and trick me, just open the till or I will kill you right away.”
[9] Ms. Verma opened the cash drawer and she immediately retreated into the kitchen area. Mr. Rousseau took the cash tray and fled. A witness followed and confronted Mr. Rousseau in the parking lot. An altercation occurred during which the cash tray was knocked from Mr. Rousseau and he responded by swinging a meat cleaver at the witness. Mr. Rousseau then fled to the SkyTrain station where he boarded a train.
[10] The police attended and they recovered some of the money, the mask and the meat cleaver.
Information 250531 – Mischief
[11] On March 30, 2018, at approximately 6:00 am, a witness saw Mr. Rousseau breaking the lock on a storage shed located at the rear of a restaurant. Mr. Rousseau entered the shed and stole a quantity of alcohol. The police were notified and they managed to locate Mr. Rousseau and arrest him. At the time, Mr. Rousseau was on a recognizance requiring him to keep the peace, be of good behaviour and not to possess alcohol.
Information 25430 – Possession of identity documents
[12] On May 11, 2019, the police arrested Mr. Rousseau on outstanding warrants. When the police searched Mr. Rousseau they found an Irish passport belonging to Stewart Parnell. The police determined that Mr. Parnell’s passport had been lost or stolen. At the time of his arrest, Mr. Rousseau was wanted on a warrant for failing to attend court and for breaching his recognizance by leaving his recovery house. Mr. Rousseau was also breaching his recognizance by being in Vancouver.
PERSONAL CIRCUMSTANCES OF MR. ROUSSEAU
[13] The court has had the benefit of a Pre-Sentence Report, a Gladue Report and the able submissions of counsel. All of the information has been considered and below is brief summary of the salient points.
[14] Mr. Rousseau is 37 years old. He is Mètis. His father was half First Nations, which resulted in the union between Mr. Rousseau’s father and his mother receiving little family support.
[15] Mr. Rousseau’s parents divorced when he was 3 years old. His upbringing was chaotic and involved physical abuse and neglect. Specifically, Mr. Rousseau was beaten and burned with cigarettes by his older brother and sexually abused by a male babysitter. As for his mother, she was worked occasionally as a chambermaid and she was addicted to alcohol and gambling. There were times where she would neglect the family and leave them without food or supervision. This resulted in Mr. Rousseau’s brother encouraging him to steal and rewarding him with alcohol and drugs.
[16] As for education and employment, Mr. Rousseau completed grade 9. He has held several labour jobs and he is currently on social assistance. Mr. Rousseau lived on the streets for a number of years and he supported by working in the sex trade. While living on the street Mr. Rousseau was raped and beaten.
[17] Mr. Rousseau has been romantically involved for eight years. The couple has a 9-year-old son who was adopted out by the Ministry of Children and Family Development. Mr. Rousseau and his partner are engaged, however, they are delaying marriage until they both achieve sobriety and stability.
[18] With respect to substance abuse, Mr. Rousseau started using marihuana at 14, and by 16, he was using LSD and crack cocaine. Throughout his adult life Mr. Rousseau has abused solvents and drugs, with crystal methamphetamine being his drug of choice. To his credit, Mr. Rousseau has attempted to over-come his addiction. On occasion he has been a resident at a recovery residence, he has attended detox centres and he is interested in attending a residential treatment program. Letters were filed confirming Mr. Rousseau’s involvement with the residential treatment centres. Of note is, since September 2017, Mr. Rousseau has spent approximately 15 months in recovery.
[19] Mr. Rousseau suffers from Hepatitis C, ADHD, anxiety, depression and PTSD. He has also suffers from the effect of a brain injury that he received when he was struck by a car.
[20] As for his criminal history, Mr. Rousseau’s first conviction was in 1998 when he was a youth. Thereafter, he has 33 substantive convictions for, break and enter, possessing stolen property, mischief, drugs, forgery, and assault with a weapon. He also has 11 convictions for breaching court orders and entries for breaching conditional sentence orders. At the time of the robberies, the mischief, and the break and enter, Mr. Rousseau was on probation.
[21] As for his heritage, Mr. Rousseau self identifies as Mètis. His grandmother was First Nations and she was a residential school survivor. Mr. Rousseau is one-quarter First Nations and while growing up he was beaten by First Nations youth owing to the fact that he did not look First Nations. Mr. Rousseau reports his mother taught him to hate First Nation persons and he feels caught in the middle between his heritage and his mother’s anger. While incarcerated Mr. Rousseau has made crafts and he has learned about smudging. Recently, he participated in his first sweats. These activities have inspired Mr. Rousseau to learn more about his culture.
PURPOSE AND PRINCIPLES OF SENTENCING
Section 718 - Sentencing objectives
[22] Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with certain objectives. In the instant case I find that denunciation, deterrence and rehabilitation are the primary objectives of any sentence imposed.
[23] As for the objective of denunciation, it is through the sentence imposed that this court communicates society’s condemnation of Mr. Rousseau’s conduct: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at paragraph 81.
[24] As for deterrence, it is founded on the premise that the sentence imposed will deter others who are inclined to commit similar offences: R. v. B.W.P, [2006] 1 SCR 94. This principle takes on added emphasis if the offender has a similar previous conviction.
[25] I note, the principles of denunciation and deterrence are significant objectives when sentencing an offender for robbery: R. v. Koop, 2008 BCCA 140, at para. 15. This perspective is supported with the recognition that many retail clerks are vulnerable simply because their employment frequently requires the handling of cash in circumstances where there are few are present.
[26] As for rehabilitation, Mr. Rousseau has demonstrated a desire to eliminate that which contributes to his criminal conduct, namely, his drug addiction. In this regard, he has voiced a desire and he has taken steps toward controlling his addiction. He has struggled in his recovery; however, many addicted persons struggle for years before finally managing to free themselves from the grips of their addiction. Given Mr. Rousseau’s efforts and his intentions, I am of the view that his rehabilitation is a meaningful sentencing objective and one that will serve to protect the community.
Section 718.1 - Fundamental sentencing principle
[27] Section 718.1 of the Criminal Code, establishes that proportionality is a fundamental principle of sentencing. In R. v. Ipeelee, 2012 SCC 13, LeBel J., commented on proportionality and at para. 37 stated:
[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[28] More recently in, R. v. Lacasse 2015 SCC 64, Wagner J., observed at paragraph 12:
[12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.
[29] The seriousness of Mr. Rousseau’s offences cover the spectrum. The offence of robbery has a maximum sentence of life imprisonment, whereas the offence of mischief has a maximum penalty of two years imprisonment. In the circumstances of the instant case, I note Mr. Rousseau’s robberies were committed with threats of death, that he presented a weapon and in the last instance, he waived a large knife at Ms. Verma while wearing a mask.
[30] As for Mr. Rousseau’s degree of responsibility, one cannot assess his degree of responsibility without regard to his Indigenous heritage. On this issue LaBel J., observed at para. 73 of Ipeelee:
[73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as “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” (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. stated in Gladue, at para. 69:
In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.
[31] In R. v. Matchee, 2019 ABCA 251, the court commented at paras. 26-27 on the interplay between the systemic and background factors and the moral culpability of an Indigenous offender:
[26] Another error was the failure to recognize a connection between Mr. Matchee’s mother’s and grandmother’s attendance at residential schools and his current circumstances. Attendance at residential schools is an example of what Ipeelee and Gladue have called systemic and background factors. The issue is whether the existence of systemic factors or, more specifically, the link between systemic factors and the disadvantaged circumstances of a particular offender can affect the offender’s blameworthiness. In Ipeelee, the Supreme Court said:
To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. (para 60) (emphasis added).
[27] In this paragraph, the Supreme Court is clear that systemic and background factors do not on their own mitigate sentence by indicating lower blameworthiness. Rather, these factors can provide some context to an evaluation of blameworthiness but what drives the assessment of blameworthiness is “case-specific information” about an offender’s circumstances.
[32] This court takes judicial notice of the history of colonialism, displacement, residential schools and the attendant negative impact on Indigenous persons and their culture. With these factors in mind and acknowledging Mr. Rousseau’s background, I conclude his moral culpability is lessened.
Section 718.2 - Other sentencing principles
[33] Although, I have considered all of the sentencing principles, below I discuss those that are most salient to the instant matter.
718.2 (a) Aggravating and mitigating factors
[34] It is aggravating that Mr. Rousseau took advantage of Ms. Estrada, a lone female employee. The planning, the use of a mask and the level of violence are also aggravating. As for the violence, Mr. Rousseau threatened death, he displayed a knife and he waved a knife. Finally, the fact that Mr. Rousseau was subject to court orders at the time of his offences is also aggravating.
[35] Mr. Rousseau’s guilty pleas are substantially mitigating. He has saved the state the time and expense associated with several trials. He has saved the witnesses from the inconvenience and attendant feelings associated with testifying. Significantly, his guilty pleas demonstrate an acceptance of responsibility and indicates remorse. I also find Mr. Rousseau’s rehabilitative efforts to be mitigating. He spent time at various recovery houses where he engaged by working on his challenges and issues while helping other residents.
Section 718.2 (b) - Similar sentences
[36] The Crown submitted the following authorities; R. v. Brogan, 1999 BCCA 278, R. v. J.L.H., 2012 BCCA 142, R. v. Rousseau, 2016 BCSC 1593.
[37] In Brogan, the offender’s appeal of an eight year sentence for two counts of robbery was dismissed. The circumstances of the offence are; the offender robbed a gas station while carrying a pellet gun and wearing a mask. Later the same evening he robbed a second gas station while holding a pellet gun against a woman’s head. In dismissing the appeal Madam Justice Ryan identified the sentencing range for robbery as between 2 and 9 years. As for factors that assist in determining an appropriate sentence Madam Justice Ryan commented at paragraph 10:
[10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another.
[38] In Rousseau, the offender received two concurrent two-year terms of imprisonment after being convicted of two robberies. The circumstances of the robberies are; the offender entered separate retail outlets and presented the clerk with a note demanding cash, cigarettes and lottery tickets. In support of his demand, the offender threatened the clerk with a syringe. The offender committed the offences when he was 26 years old, he was Indigenous, he had a criminal record, he suffered from ADHD and anxiety, and he had been sexually assaulted while living in a foster home.
[39] In J.H.L., the offender’s appeal of a four-year sentence imposed for two counts of robbery was dismissed. The circumstances of the offences are; the offender implied he had a firearm and he robbed a convenience store. In the second robbery, he produced a knife. The offender was 23, he had a difficult childhood, he had been sexually abused, he had mental health issues, he had a history of abusing drugs and he had a criminal record.
[40] Counsel for Mr. Rousseau relies on the following authorities, R. v. Cain, 1993 CanLII 552 (BC CA), [1993] B.C.J. No. 1369 (BCCA), R. v. Marks, 2016 BCCA 480, R. v. Chand, 2015 BCSC 484, R. v. Kumar, Unreported Surrey Registry: 205085-1, 218477-1.
[41] In Cain, the Crown’s appeal of a suspended sentence with probation for three years was dismissed. While on parole the offender entered a credit union and produced a piece of Kleenex on which he had written “Give me all your money.” The offender had a long record of robbery and as a result of this offence his parole was revoked and he spent 14 months in custody. Prior to the offender’s parole being revoked, he had made substantial progress in the community and he had worked hard to address his addiction issues. The Court of Appeal quoted extensively from the sentencing judge’s reasons and commented on the facts that supported a finding of sustained rehabilitation (para. 13). No err was found.
[42] In Marks, the offender’s appeal of a 12-month sentence was dismissed on the basis that the sentence was not unfit. The circumstances of the offence are, the offender entered a gas station, produced an imitation handgun, demanded money and threatened to shoot the victim. The offender pled guilty to robbery while armed with an imitation weapon. The offender was 18 at the time of the offence, his offence was driven by a desire to pay off drug debts, he had been on strict bail for three years and he had made significant efforts at turning his life around
[43] In Chand, the offender pled guilty to robbery and his sentence was suspended and he was placed on probation 18 months. The offence occurred during a night of drinking wherein the offender and others accosted the victim, a knife was produced (by the others), and the offender told the victim to give them his things. The offender was 26 at the time of the offence, he had no criminal record, he had taken alcohol treatment, he had changed his associates and he was in a stable relationship. Finally, and owing to the offence, the offender lost his job. The sentencing judge noted the offender’s limited involvement, his rehabilitative efforts, the support of his family and the consequences already suffered.
[44] In Kumar, the offender received a suspended sentence and he was placed on probation for three years after pleading guilty to robbery and theft. The circumstances of the robbery are; the offender entered a bank, produced an imitation handgun and demanded money. The offender’s motivation was to pay off money owed to persons who were threatening his family. The offender was 27, he had completed a three month drug recovery program, he was motivated to complete high school and a millwright program, he had a steady girlfriend, he did not have a criminal record, he was steadily employed and he had the support of his family. The sentencing judge was satisfied that a suspended sentence met the requisite sentencing objectives.
[45] In considering the cases submitted, I recognize that sentencing is an individualized task and a sentencing judge must consider the unique circumstance of the offender and the offences. As such, and not surprisingly, sentencing authorities are usually distinguishable. In the instant case, I note the cases submitted by counsel for Mr. Rousseau all dealt with circumstances wherein the offender’s rehabilitation had gained significant traction and all but Cain involved relatively youthful first time offenders.
[46] Of the cases presented by the Crown, I found Rousseau to have the most similarities. There, the offender was Indigenous, he was 27, he had a criminal record, he suffered from ADHD and anxiety and he had been sexually assaulted. Of distinction is, unlike the instant matter, the offender did not have the mitigation of guilty pleas.
Section 718.2 (e) - Aboriginal offenders
[47] The purpose of section 718.2 (e) of the Criminal Code is to reduce the overrepresentation of incarcerated aboriginal people through the use of restorative sentencing. The law is clear, the sentencing of an aboriginal offender mandates that a judge must consider the systemic and background factors that may have contributed to bringing an offender before the court. The courts must then consider the appropriate sentencing procedures and sanctions that maybe appropriate given the offender’s heritage.
[48] Recently, Madam Justice DeWitt-Van Oosten, in R. v. Billing 2017 BCSC 1107, commented on the application of section 718.2 (e) and at paras. 46 - 50 she stated:
[46] Section 718.2(e) of the Code provides that when imposing sentence, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered, with particular attention to the circumstances of Aboriginal offenders.
[47] In R. v. Ipeelee; Ladue, 2012 SCC 13, the Supreme Court re-affirmed that s. 718.2(e) is a "remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing": at para. 59, citing R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688.
[48] In sentencing an Aboriginal offender, the Court must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) 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: Ipeelee, at para. 59.
[49] When considering "unique systemic or background factors", the Court must take judicial notice of:
[60]… such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course high levels of incarceration for Aboriginal peoples: Ipeelee, at para. 60.
[50] The Court must also consider any "individualized information" about the accused person as an Aboriginal offender: Ipeelee, at para. 60.
[51] Paying close attention to both systemic and individualized factors allows the Court to better achieve a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. "Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited option for positive development … the reality is that their constrained circumstances may diminish their moral culpability": Ipeelee, at para. 73.
[52] It is not necessary that the offender establish a "causal link" between these background factors and the index offence before the remedial impact of s. 718.2(e) is brought to bear: Ipeelee, at para. 81. This is true even for "serious or violence offences": Ipeelee, at para. 84. "Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence": Ipeelee, at para. 83.
[53] Sentencing judges have a positive duty to apply s. 718.2(e) in all cases: Ipeelee, at para. 85. A failure to do so constitutes an error that justifies appellate intervention: Ipeelee, at para. 87.
PRE-SENTENCING CREDIT
[49] Mr. Rousseau accumulated 163 days of pre-sentence custody. Calculated at a rate of 1.5 days for each day in custody Mr. Rousseau has a pre-sentence credit of 245 days, which is 8 months.
[50] Counsel for Mr. Rousseau argues the strictness of Mr. Rousseau’s bail warrants credit for those portions of time that he was subject to strict bail conditions. In support, counsel relies on; R. v. Hilderman, 2005, ABCA 249, R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (O.N.C.A.), R. v. Berggen, 2014 BCSC 2096, R. v. Tse, 2010 BCSC 1273.
[51] In Tse, Mr. Justice Davies thoroughly canvassed the issue of granting credit for stringent bail conditions and at paragraphs 14 - 20 he reasoned:
[14] In Downes, the Ontario Court of Appeal thoroughly discussed the issue of such credit as compared to that for pre-trial custody and stated at paras. 26-37:
[26] These rationales do not readily apply to time spent on bail, even under stringent conditions such as house arrest, for three reasons. First, there is no statutory provision that directly addresses the issue. Section 719(2) of the Criminal Code provides that, “Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.” [Emphasis added.] However, there is no suggestion that this provision limits the right of a sentencing court to take into account, as a mitigating factor, time spent on pre-sentence bail. See R. v. Hilderman, 2005 ABCA 249 (CanLII), [2005] A.J. No. 977 (QL), 199 C.C.C. (3d) 561 (C.A.), at paras. 10-11.
[27] Second, even the most stringent bail conditions, including house arrest, tend to allow the offender the opportunity to work, attend school, attend medical appointments, conduct religious worship and address personal needs. The rehabilitative and treatment options that are often denied an accused in pre-trial custody are usually available, even to an accused on house arrest.
[28] Third, unlike pre-trial custody, the impact of the bail conditions cannot be assumed. Trial judges do not need evidence or even submissions to understand the impact of ordinary pre-trial custody on an offender because they can take judicial notice that the ordinary consequences of pre-trial custody involve a severe loss of liberty. It is only in unusual circumstances, where the offender seeks enhanced credit, or the Crown seeks less than the usual 2:1 credit, that a trial judge will need to engage in a hearing to determine the effect of pre-trial custody.
[29] On the other hand, some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time under house arrest. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. As Mr. Doucette points out, in R. v. Proulx, (2000), 2000 SCC 5 (CanLII), 140 C.C.C. (3d) 449 (S.C.C.), at para. 103, Lamer C.J.C. identified house arrest as a form of punishment in the conditional sentence context:
…
Despite its punitive aspects, the offender receives no credit towards parole eligibility for time spent on pre-sentence house arrest.
[30] Counsel have assembled a list of cases from trial courts in this and other provinces indicating a recognition that some credit should be given for pre-sentence bail conditions. Most courts reject the application of any kind of formula and rather consider the time spent under stringent bail conditions, especially house arrest, as a mitigating factor to be considered with other factors. See, for example, R. v. Hanna, [2000] O.J. No. 3498 (QL), 47 W.C.B. (2d) 414 (S.C.J.), at para 56; R. v. Lepore, [2001] O.J. No. 2396 (QL), 50 W.C.B. (2d) 270 (S.C.J.), at para. 15; R. v. J.S.G., 2003 YKTC 38 (CanLII), [2003] Y.J. No. 42 (QL) (Terr. Ct.) sub nom. R. v. Grant, at para. 23; R. v. Porter, 2001 BCPC 191 (CanLII), [2001] B.C.J. No. 1826 (QL) (Prov. Ct.), at para. 58; and R. v. Hilderman, 2004 ABQB 864 (CanLII), [2004] A.J. No. 1375 (QL), 64 W.C.B. (2d) 448 (Q.B.), at para. 26, affirmed 2005 ABCA 249 (CanLII), [2005] A.J. No. 977 (QL), 199 C.C.C. (3d) 561 (C.A.).
[31] Appellate authority also tends to support the principle of giving credit for stringent bail conditions. In R. v. Lau (2004), 2004 ABCA 408 (CanLII), 193 C.C.C (3d) 51 (Alta. C.A.), at para. 15, Hunt J.A. held that “a trial judge may take account of very strict bail conditions and treat them as akin to custody in calculating a sentence”. In R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.), at para. 43, Doherty J.A. recognized that stringent bail conditions may be taken into account as a mitigating factor:
In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender's bail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigating effect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence. [Emphasis added.]
[32] Lau and Spencer were referred to with approval in R. v. Perreault (2005), 2005 BCCA 226 (CanLII), 197 C.C.C. (3d) 183 (B.C.C.A.).
[33] Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. …
[34] I also agree with Ms. Paine, and to a large extent with Mr. Doucette, that it is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender’s liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult. The accused may find themselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment.
…
[36] Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.
[37] In summary, credit for pre-trial bail conditions should be approached in the following manner:
• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[15] The approach in Downes to the exercise of judicial discretion in determining whether to allow credit for time served on bail conditions has been considered and applied in British Columbia in R. v. Markovitch, 2008 BCSC 1545. It was also considered by our Court of Appeal in R. v. Cuthbert, 2007 BCCA 585 [Cuthbert], and more recently in R. v. Nghiem, 2009 BCCA 170 [Nghiem].
[16] In Cuthbert, Chief Justice Finch said:
[33] The Criminal Code is silent on whether any credit should be given for time spent on judicial interim release.
[34] In R. v. Perrault, 2005 BCCA 226 at [12]-[13], [2005] B.C.J. No. 894 (QL), this Court referred to the possibility that a sentencing judge may properly take into account time spent on interim release where conditions approximate house arrest in deciding on an appropriate term of imprisonment. This Court, however, has not ruled on this issue.
[35] This issue has been addressed by the Ontario Court of Appeal in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 [2006] O.J. No. 555 (QL). In Downes, Rosenberg J.A. noted that most courts reject the application of any kind of formula with respect to credit given for pre-sentence bail conditions (para. 30). Instead, stringent bail conditions should be seen as a mitigating factor, considered along with the “myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case” (para. 30-31, 36). The trial judge should adopt a flexible approach.
[36] In Downes, the Ontario Court of Appeal noted that the extent to which stringent bail conditions should act as a mitigating factor will depend on a number of factors, including the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment and activity (para. 33, 37).
[37] While the appellant’s terms of bail included a curfew and a significant area restriction, they did allow him to carry on many aspects of a normal life. He was able to carry on with his career; he was able to interact with family and friends; subject to his area restriction he was not confined during non-curfew hours; and there is no evidence he was ever denied a request to go outside his area restriction. He was able to pursue interests, as he took up or resumed reading, learned some Latin, played chess and the saxophone, pursued drawing, and participated in health and fitness activities.
[38] While I respectfully agree with the Ontario Court of Appeal that a flexible approach should be adopted, and that a sentencing judge may treat bail time on stringent conditions as a mitigating factor, I do not believe that the sentencing judge erred in this case by giving credit only for time served in custody. The rationale for the practice of giving credit for pre-sentence custody is that where the accused is deprived of liberty it would be unfair to ignore that deprivation in imposing a sentence. The two-for-one credit sometimes given by trial judges is designed to take into account the absence of parole eligibility and less favourable conditions than post-sentence custody. …
[39] The evidence concerning the appellant’s time on bail shows that his ability to carry on a normal life, while not complete, was far removed from what he would have experienced in custody.
[40] I do not consider the sentencing judge erred in principle by not giving any credit for the time the appellant served on judicial interim release. I would not give effect to this ground of appeal.
[17] In Nghiem, Mr. Justice Groberman noted some disapproval of the mandatory consideration of pre-trial bail conditions expressed in Downes.
[18] In so doing, at para. 14, he considered the following statement by the New Brunswick Court of Appeal in R. v. Voeller, 2008 NBCA 37, and said:
The New Brunswick Court of Appeal concluded that a similar approach was appropriate. At para. 21, it stated:
21. I agree with the proposition that a sentencing judge can, in some cases, consider as a mitigating factor the impact of conditions imposed as part of a judicial interim release order, and that this factor is to be balanced with other mitigating and aggravating factors in arriving at an appropriate sentence in the circumstances of a particular case. I do not subscribe to the view that time spent under stringent bail conditions, even conditions that include house arrest, should be treated in the same manner as pre-sentencing custody and give rise to a credit to be applied against what would otherwise have been a fit sentence.
[19] Justice Groberman then went on to say at paras. 15 and 16 in Nghiem:
[15] In R. v. Cuthbert, 2007 BCCA 585, this Court considered the approach that should be taken to time that an accused spends on strict bail conditions prior to sentencing. It found that a flexible approach should be adopted, with time on bail conditions considered as a mitigating factor in sentencing.
[16] In my view, time spent under strict bail conditions is not to be considered by way of application of some mathematical formula to reduce the length of sentence. Instead, a court should concern itself with the degree to which objectives of sentencing may have already been accomplished through the imposition of strict bail conditions. While such conditions are not intended to be penal, they can nonetheless incidentally serve to further the goals of rehabilitation, deterrence and denunciation.
[20] I am satisfied that when read in conjunction with Cuthbert, the Court of Appeal's conclusion in Nghiem that “time spent on bail is not to be considered by application of some mathematical formula to reduce the length of sentence” does not preclude the granting of some credit for time spent on bail in determining the remainder of an otherwise appropriate sentence that must be served after granting such credit.
[52] From the above, I conclude I have the discretion to grant credit for the time that Mr. Rousseau spent on strict bail. I now consider if I should exercise my discretion in the instant matter.
[53] On September 20, 2017, February 1, 2018, and March 8, 2018, Mr. Rousseau was released on various recognizances all of which required him to live at a recovery house and to obey all rules and regulations including any curfew.
[54] On June 4, 2018, December 13, 2018 and March 3, 2019, Mr. Rousseau was released on various recognizances all of which required him to live at a recovery house. They also required him to remain on the property of the recovery house unless he was in the company of a representative from the house, or if he had the approval of his bail supervisor or if he was in the company of a person approved of by his bail supervisor.
[55] As for Mr. Rousseau’s first three releases, I do not see the conditions as being so strict as warranting mitigation on sentence. The primary restriction on Mr. Rousseau’s liberty was the possibility of a curfew. I have not received information indicating if a curfew was imposed and if so the timing or exceptions.
[56] As for the remaining releases, I observe they contained exceptions whereby Mr. Rousseau was permitted to leave the property provided he was in the company of another person. I also note the conditions were connected and necessary to Mr. Rousseau’s recovery in that he had to be at the residences and engaged with the counselling sessions and associated work. I have not heard detailed submissions on how the restriction to the properties affected Mr. Rousseau’s ability to carry on relationships, or pursue employment and I note there were two occasions where he committed offences while bound by the “strict” conditions.
[57] In all of the circumstances, I decline to credit Mr. Rousseau with the time that he was restricted to the property of a recovery house. Despite this, his involvement with a recovery house is mitigating and a factor considered when imposing sentence.
ANALYSIS
[58] Mr. Rousseau’s offences must be denounced and deterred. Further, Mr. Rousseau’s escalating criminal record combined with his inability to comply with court orders satisfies me that he needs to be specifically deterred from future criminal conduct. Despite these comments, I recognize the role Mr. Rousseau’s addiction and Indigenous heritage has played in his offending and I acknowledge the steps that he has taken to address his addiction. As such, the sentence imposed must assist with his continued rehabilitation. Simply stated, the sentence imposed is an effort at providing some measure of protection to the public, achieved through denunciation and deterrence, while also supporting Mr. Rousseau’s rehabilitation and reintegration into the community.
Information 248439
[59] On information 248439, the robberies, I impose a global sentence of 2 years less a day. From this sentence Mr. Rousseau’s pre-sentence custody of 6 months will be deducted with a balance remaining of 18 months less a day. Thereafter, Mr. Rousseau will be placed on probation for a period of 2 years.
PROBATION ORDER - CONDITIONS
[60] Keep the peace and be of good behaviour;
• you are to have no contact directly or indirectly with, Olga Estada, Sravan Kumar Koganti, Yukti Verma, Stewart Parnell, Darwin Tibbet;
• you are not to attend any residence work place or education institute known to you to be that of Olga Estada, Sravan Kumar Koganti, Yukti Verma, Stewart Parnell, Darwin Tibbet;
• you must not attend in the 300 block of Water Street, 1000 block of Granville Street, 1200 block of Station Street, 700 block of Beatty Street, 1700 block of Main Street or the 1500 block of Main Street all in the City of Vancouver, B.C.
• you must report to a probation officer at 275 East Cordova Street, Vancouver, B.C. within 2 business days of your release from custody and thereafter as and when directed by your probation officer;
• you are to appear before the court when required to do so by the court;
• you must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation;
• having consented, you must attend, participate in and successfully complete any intake, assessment, counselling, program treatment or residential treatment program as directed by your probation officer;
• not to possess any masks;
• knives, except while immediately preparing or consuming food;
• you must not possess any weapons as defined by section 2 of the Criminal Code.
ANCILLARY ORDERS
[61] Pursuant to s. 109 of the Criminal Code, you are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for life.
DNA
[62] The offence of robbery is a primary designated offence. I therefore order that a sample of your DNA be taken.
INFORMATION 250531
[63] On information 250531, the mischief, I impose a sentence of 1 day with the record reflecting 30 days, time already served.
INFORMATION 254340
[64] On information 254340, possession of the identity document, I impose a concurrent sentence of 1 day with the record reflecting 30 days, time already served.
INFORMATION 251066
[65] On information 251066, the break and enter, I impose a sentence of 1 day. I have declined to impose any further time because I am of the opinion that had the matter been dealt with in a timely way, Mr. Rousseau would have received a blended sentence when he was previously before the courts. Hence, to impose a sentence for this matter that is consecutive to the other sentences imposed would unfairly affect his reintegration into the community.
SECONDARY DNA
[66] The offence of break and enter to a commercial premise is a secondary DNA offence. Accordingly and pursuant to s. 487. 051 (3) of the Criminal Code, a court may order the taking of an offender’s DNA if it is in the best interests of the administration of justice to make such an order. In considering the “best interests of the administration of justice”, a judge shall consider the person’s criminal record, the nature of the offence, the circumstances of the offence, and the impact that such an order would have on the privacy and security of the person.
[67] In the instant matter I observe Mr. Rousseau’s offence was break and enter to a commercial building, he has a criminal record, and DNA played in identifying him as the offender. I observe the taking of a DNA sample is minimally intrusive and the results are protected by a legislative scheme. For these reasons, I am satisfied that it is in the best interest of the administration of justice to order that a sample of Mr. Rousseau’s DNA be taken.
[68] In closing, the above sentences is an effort at achieving a proportional sentence that denounces and deters, while assisting Mr. Rousseau with his rehabilitation.
____________________________
The Honourable Judge R.P. Harris
Provincial Court of British Columbia