



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Rocheleau, 2013 ONCA 679

DATE: 20131112

DOCKET: C52685

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Rocheleau

Appellant

Frank Addario and Joseph Heller, for the appellant

Deborah Krick, for the respondent

Nancy Dennison and Andrea Bourke, for the intervener the
    Attorney General of Canada

Heard: February 19-22, 2013

On appeal from the conviction entered by Justice Jack D.
    Nadelle of the Ontario Court of Justice on December 1, 2009, and from the
    sentence imposed on August 20, 2010, with reasons reported at [2010] O.J. No.
    5308.

Tulloch J.A.:

I

Overview

[1]

The appellant pled guilty to 24 charges arising out of four robberies
    and three break and enters that occurred between October 6, 2008, and March 2,
    2009. The appellant received sentences totalling seven years and nine months
    imprisonment, having been given three months credit for his pre-sentence
    custody. He appeals conviction and sentence.

[2]

The conviction appeal focuses on the multiple convictions arising out of
    three of the robberies to which the appellant pled guilty. In respect of each
    of those robberies, the appellant pled guilty to and was convicted of:

·

robbery with a firearm;

·

unlawful confinement of employees at the places robbed; and

·

the use of a firearm in the commission of the unlawful confinement
    of the employees.

[3]

The appellant submits that the
Kienapple
principle precludes
    convictions on all three charges arising out of the same delict:
R. v.
    Kienapple
, [1975] 1 S.C.R. 729. Counsel submits that the appellant should
    have been convicted of only the charge of robbery with a firearm and that the
    unlawful confinement and use of a firearm in the commission of an unlawful
    confinement charges should have been stayed. In his submissions, counsel
    directed most of his attention to the use of a firearm in the commission of an
    unlawful confinement charges. This emphasis is understandable in that those
    charges attracted a mandatory one-year minimum sentence that had to be made
    consecutive to the robbery sentences.  In practical terms, staying the unlawful
    confinement charges would have no effect on the total sentence, but staying the
    use of a firearm in the commission of an unlawful confinement charges could
    reduce the total sentence by three years.

[4]

The appellant also appeals his sentence. He argues that the combination
    of the requirement in s. 85(4) of the
Criminal Code
that any sentence
    imposed for the use of a firearm in the commission of an indictable offence be
    consecutive to any other punishment for offences arising out of the same event
    and consecutive to any other sentence being served at the time is
    unconstitutional when combined with the mandatory four-year minimum penalty for
    use of a firearm in the commission of a robbery. This submission assumes that
    the appellants conviction appeal has not succeeded and the court has affirmed
    his convictions on the charges of using a firearm in the commission of an
    unlawful confinement.

[5]

I would allow the conviction appeal. In my view, the appellant was
    properly convicted of both the robbery with a firearm and the unlawful
    confinement charges relating to each robbery. I would hold, however, that the
    charges alleging the use of a firearm in the commission of the unlawful
    confinement should have been stayed given the convictions on the armed robbery
    charges.  In my view, entering convictions on both offends the
Kienapple
principle.

[6]

In light of my holding that the use of the firearm charges should be
    stayed, there is no need to address the appellants argument that the
    combination of the mandatory minimum penalties for armed robbery and using a
    firearm in the commission of an indictable offence for charges arising out of
    the same incident results in cruel and unusual punishment, contrary to s. 12 of
    the
Charter of Rights and Freedoms
.

[7]

Although I would stay the charges of using a firearm in the commission
    of an unlawful confinement and thereby eliminate the three one-year consecutive
    sentences imposed for those offences, I agree with the Crowns contention that,
    even if those charges are stayed, sentences totalling eight years imprisonment
    were appropriate. The appellant was convicted of a number of very serious
    charges.  Apart from the minimum sentences imposed on the three charges of
    using a firearm in the commission of an unlawful confinement, the applicable
    mandatory minimum penalties required a sentence of at least five years.
[1]
I would vary the sentences imposed on the armed robbery convictions to maintain
    the total sentence imposed by the trial judge.

II

The Facts

[8]

A chart outlining the charges, grouped by location and listed
    chronologically, is set out below.  A summary of the relevant facts follows:

SUMMARY OF
    GUILTY PLEAS AND SENTENCE



Count

Date

Place

Offence

Section

Sentence



1

Oct.6/08

534
          Mutual St.

B&E

348(1)(b)

suspended
          sentence



2

Oct.15/08

Orleans
          Sportsplex

B&E

348(1)(b)

suspended
          sentence



7

Theft
          Over

334(a)

suspended
          sentence



11

Conspiracy

465(1)(c)

suspended
          sentence



12

Dec.2/08

Macs
          Convenience Store

Robbery

344(1)(b)

4
          years concurrent



15

Use
          Imitation Firearm

85(2)

1
          year consecutive



16

Dec.8/08

Food
          Basics Grocery Store

B&E

348(1)(b)

suspended
          sentence



17

Forcible
          Confinement

279(2)

suspended
          sentence



21

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent



23

Use
          Firearm*

85(1)

1
          year consecutive



34

Conspiracy

465(1)(c)

suspended
          sentence



35

Dec.22/08

Food
          Basics Grocery Store

B&E

348(1)(b)

suspended
          sentence



36

Forcible
          Confinement

279(2)

suspended
          sentence



39

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent



41

Use
          Firearm*

85(1)

1
          year consecutive



50

Conspiracy

465(1)(c)

suspended
          sentence



51

Jan.8/09

Independent
          Grocer Store

B&E

348(1)(b)

suspended
          sentence



52

Forcible
          Confinement

279(2)

suspended
          sentence



58

Disguise
          with Intent

351(2)

suspended
          sentence



59

Use
          Firearm*

85(1)

9
          months consecutive**



68

Point
          Firearm

87(2)

suspended
          sentence



74

Conspiracy

465(1)(c)

suspended
          sentence



75

Robbery
          with Firearm

344(1)(a.1)

4
          years concurrent



77

Mar.2/09

355
          Gilmour St.

Conspiracy
          (B&E)

465(1)(c)

suspended
          sentence



*
          These charges were amended to using a firearm in the commission of the
          indictable offence 
under section 279(2)
.

**
          The one year sentence was reduced by three months for credit for time served
          prior to the appellants release on bail.



A.

October 6, 2008 Break and enter

[9]

Brian Henry and Jonathan Lascelles broke into a garage that had been
    converted into a home office. Several items were stolen, including a 308 pump action
    rifle and welding tanks. The appellant did not enter the site of the break-in,
    but remained in the getaway van, acting as a lookout. The van was used to
    remove the stolen property from the site of the break-in. Some of the stolen
    property, including the rifle, was used in subsequent robberies.

B.

October 15, 2008 break and enter

[10]

At
    about 5:00 a.m. on October 15, 2008, Henry and Lascelles entered the Orleans Sportsplex
    by breaking a window. Both were armed, one with a pipe and the other with a
    baseball bat. They bound the custodian with duct tape and proceeded to look for
    cash. Cash boxes and two small safes were found containing about $6,000. An
    attempt to access an automated teller machine by cutting into it with the
    acetylene torches that Henry and Lascelles had brought with them proved
    unsuccessful. Henry and Lascelles took the custodians car keys before they
    fled the scene.

[11]

During
    the break-in at the Sportsplex, the appellant waited outside in the vehicle
    acting as a lookout. He picked Henry and Lascelles up when they exited the
    Sportsplex and drove them from the scene.

C.

December 2, 2008 robbery

[12]

On
    the evening of December 2, 2008, Henry and the appellant were driving around
    looking for a store to rob. Henry entered a convenience store wielding an
    imitation style pellet pistol.  He grabbed a female customer and made her
    remain inside the store. He also ordered a second customer to turn away from
    him. Henry pointed the imitation revolver at the clerk and demanded money.  The
    clerk turned over $120 from the cash drawer. He demanded the money in the safe,
    but the clerk explained he could not open the safe. Henry fled the store. The
    appellant was waiting for him in the getaway car. The appellant had been
    keeping watch while Henry was in the store. When Henry entered the car, the
    appellant drove away and Henry changed into clothing that had been placed in
    the trunk of the vehicle.

[13]

It
    is noteworthy that this robbery, unlike the three described below, did not involve
    the use of a firearm and therefore did not attract a four-year mandatory
    minimum penalty. The offence did, however, involve the use of an imitation
    firearm which led to a conviction under s. 85(2) of the
Criminal Code
and
    a mandatory minimum one-year consecutive penalty. I do not understand the
    appellant to challenge either the constitutionality or the fitness of the
    one-year consecutive sentence imposed on that charge.

D.

December 8, 2008 armed robbery

[14]

This
    is the first of the three incidents that gave rise to the appellants
    convictions on charges of robbery with a firearm, which carries a four-year
    minimum sentence of imprisonment; unlawful confinement; and using a firearm in
    the commission of that confinement, which carries a one-year consecutive
    minimum sentence of imprisonment.  Under the relevant sentencing provisions,
    the appellant had to be sentenced to at least five years imprisonment for the
    offences arising out of each of these three robberies.

[15]

The
    appellant argues that only the conviction on the charge of robbery with a
    firearm should stand and that the other two charges should have been stayed
    under the
Kienapple
principle. The facts underlying the offences are
    potentially significant to the application of the
Kienapple
principle.
    It is best to quote the relevant parts of the Agreed Statement of Facts filed
    on sentencing:

On the 8th of December 2008 at around 12:40 a.m., Brian HENRY
    and Matthew ROCHELEAU attended the Food Basics grocery store located at 1465
    Merivale Road, Ottawa, Ontario. The target was the safe. The route to and from
    the store was pre-planned using Google Earth.

HENRY entered into the store through the roof hatch and let
    ROCHELEAU in through the rear door to the store after by-passing the door alarm
    connection. HENRY knew he could gain access from a previous trip to plan the
    robbery.

HENRY and ROCHELEAU hid in the compressor room until the
    employees working the overnight shift attended the lunch room. Employees Mr.
    Alister Head, Mr. Wolf Wright and Mr. Michael Rich were confronted by HENRY and
    ROCHELEAU both of whom were armed. HENRY with the 308 pump action rifle and
    ROCHELEAU with the imitation revolver style pellet pistol [sic]. The employees
    were forced to empty their pockets onto the table. Mr. Head was forced to duct
    tape Mr. Wright and Mr. Rich around the hands and feet. They were then taken to
    separate washrooms and duct taped to the stalls.

At this point Mr. Head was scared and advised HENRY and
    ROCHELEAU that he would co-operate with them to ensure that no one got hurt.
    Mr. Head informed them that he had the codes to the alarms and that there was a
    fourth employee, Mr. Shawn St. John, outside having a cigarette.

Mr. Head was forced to lure Mr. St. John into an area of the
    store where he could be confronted and controlled by HENRY. Mr. St. John was
    taken to the lunch room where he was duct taped and placed in the compressor
    room.

Mr. Head was taken to the cash office by HENRY and forced to
    deactivate the alarm. Mr. Head was then duct taped by HENRY and placed in the
    main office.

HENRY and ROCHELEAU then returned to their vehicle which was
    parked near the rear of the store. They collected tools in preparation to open
    the store safe. The tools included oxygen acetylene tanks and torches to cut
    into the safe.

After returning to the store HENRY and ROCEHEALU believed they
    saw unmarked police cars in the area and fled the area in the ROCHELEAU family
    van. When they left HENRY and ROCHELEAU left a rifle leaning on the fence
    behind the store.

After a period of time passed, Mr. Head fled through the front
    of the store and called the police. Officers arrived at the Food Basics and
    cleared the building. The store was processed by officers and a number of
    pieces of evidence were found.



HENRY was the driving force behind this robbery and the leader.
    HENRY directed ROCHELEAU as to what to do. ROCHELEAU did not speak very much
    during the robbery and followed HENRYs orders. ROCHELEAU did not point the
    imitation pistol at any of the employees or touch them. The employees stated
    that neither HENRY nor ROCHELEAU [were] aggressive towards them.

HENRY and ROCHELEAU were wearing black balaclavas during the
    robbery and gloves to conceal their identities. They also communicated when not
    near one another using walkie-talkies with ear pieces in place.

Nothing was stolen from the Food Basics during this incident
    and the employees were not injured.

E.

December 22, 2008 armed robbery

[16]

This
    incident also resulted in convictions for armed robbery, unlawful confinement,
    and using a firearm in the commission of the offence of unlawful confinement.
    Once again, it is best to set out the relevant parts of the Agreed Statement of
    Facts:

On the 22nd of December 2008 in the early morning hours, Brian
    HENRY and Jonathan LASCELLE entered the Food Basics grocery store at 1465
    Merivale Road, Ottawa, Ontario. The same store that was involved in fourth
    incident on the 8
th
of December 2008 [sic].

HENRY and LASCELLE entered the store through the roof hatch.
    Once inside they hid in the compressor room which is located adjacent to the
    lunch room.

At around 1:30 a.m. the overnight staff attended the lunch room
    for their first break. HENRY and LASCELLE who were both armed with firearms, a
    shotgun and the imitation style pellet pistol, confronted employees Mr. Michael
    Rich, Mr. Wolfe Wright, and Mr. Terry Thompson with their weapons drawn. They
    were all duct taped and secured in the washrooms. The employees were forced to
    empty their pockets.

Mr. Rich and Mr. Wright were also present during the fourth
    incident on the 8th of December 2008. They suspected the males were the same
    ones from the previous incident. Mr. Wright stated that HENRY asked who had
    gotten loose the last time.

Mr. Thompson observed that HENRY had a bag with bolt cutters in
    it and they took his car keys. HENRY used the bolt cutters to gain entry to one
    room in the store.

HENRY and LASCELLE attempted to by-pass the rear door alarm
    connection when they inadvertently triggered the alarm. Both HENRY and LASCELLE
    fled the Food Basics. HENRY and LASCELLE fled in the ROCHELEAU family van which
    they had driven to 1465 Merivale Road. Matthew ROCHELEAU fled from his look out
    position on Merivale Road in his own vehicle, a Hyundai Elantra.

ROCHELEAU was the lookout for this robbery and remained in his
    vehicle during the incident.

F.

january 8, 2009 armed robbery

[17]

This
    is the third incident giving rise to convictions for armed robbery, unlawful
    confinement, and using a firearm in the commission of unlawful confinement. The
    relevant portions of the Agreed Statement of Facts are set out below:

On the 7th of January 2008 or days earlier, Brian HENRY
    attended the Independent Grocer store at 1619 Orleans Boulevard, Ottawa,
    Ontario. During this time in the store during business hours HENRY was
    gathering information for an upcoming robbery. HENRY also stole several
    Independent Grocer uniforms before leaving.

On the 8th of January 2008 in the early morning hours, HENRY
    and Jonathan LASCELLE entered the Independent Grocer through the roof of the
    building and hid within the store. They were outfitted in the Independent
    Grocer uniforms stolen by HENRY the previous day.

At around 1:42 a.m. HENRY and LASCELLE left their hiding spot
    and rounded up the overnight employees. They were both armed with a shotgun and
    an imitation style revolver pistol. They were wearing balaclavas and gloves to
    disguise their identities.

Six employees were bound with zip ties and secured within the
    employee washrooms.

HENRY and LASCELLE went to search the various kiosks within the
    store including the postal outlet and photo shop. The cash office motion alarm
    and door contact system was defeated to allow access to the room without
    setting off any alarms.

A door contact near the rear loading door was compromised so
    the alarm would not go off when the door was opened. Matthew ROCHELEAU entered
    through this door. ROCHELEAU brought the oxygen acetylene torches into the
    store to allow HENRY and LASCELLE to cut into the safe. They decided that there
    was not enough time to cut into the safe.

The store keeps the cash flow tills at each cash register in
    preparation for the following day. HENRY and LASCELLE removed each cash tray
    from the register. HENRY and LASCELLE also took a number of computer components
    from the cash office and managers office. They believed they were taking
    surveillance footage from the security cameras. This was not the case. A grey
    safe was also taken but did not contain any money.

HENRY stole the keys from Mr. ODonnell for his vehicle. His
    vehicle was driven to the rear of the store where it was loaded up with goods
    and driven away by one of the parties.

ROCHELEAU again was the driver for this robbery and acted as
    the look out. HENRY, LASCELLE and ROCHELEAU all communicated via walkie-talkies
    through headsets.



HENRY and LASCELLE carried the safe out to the van. ROCHELEAU
    used bolt cutters to cut through a fence to allow the safe to be put through
    the fence to be loaded into the ROCHELEAU van that was at the end of the
    street.

ROCHELEAU re-entered the store to assist HENRY and LASCELLE
    load the property into the vehicles. ROCHELEAU was wearing a black balaclava
    and gloves. LASCELLE passes him the Remington 12 guage shotgun from the 534
    Mutual Street break and enter at one point and ROCHELEAU slings it over his
    shoulder before leaving the loading area.

G.

March 2, 2009 Break and enter

[18]

On
    March 2, 2009, the police apprehended the appellant loading a box into a van
    owned by his mother. He was in possession of various burglar tools.  Further
    investigation determined that one of the adjacent houses had just been
    burglarized. The police arrested the appellant, but his accomplice, Henry,
    escaped. On questioning, the appellant admitted that he had committed the
    break-in. He made no mention of his accomplice or any other offences.  He was
    released on bail.

H.

the appellants co-operation with police

[19]

About
    a week after his arrest on the break-in, the appellant returned to the police
    station with his mother. He gave the police a full statement describing in
    detail the various offences he had committed. He identified Henry and Lascelles
    as his accomplices. Investigation by the police confirmed the information
    provided to them by the appellant and led to the arrest of Henry and
    Lascelles.  The appellant testified against both men who subsequently pled
    guilty and received lengthy jail sentences. It is unlikely that the crimes to
    which the appellant confessed would have been solved without his confession.

I.

the appellants role in the offences

[20]

When
    the appellant met Henry he was 22 years old and had no criminal record or any
    connection to the criminal underworld. He was naïve and came from a protective
    and loving family.

[21]

The
    appellant quickly came under the influence and domination of Henry who espoused
    a rather bizarre world view. The appellant was very much the follower
    throughout the crime spree in which he was involved. He never directly
    assaulted or threatened any of the victims and never pointed a firearm or any
    other weapon at anybody.

III

The Trial Judges Reasons for Sentence

[22]

The
    trial judge rejected the argument that the forcible confinement charges and/or
    the companion use of a firearm charges should be stayed. In his view, there was
    no legal nexus between the offences that would justify the application of the
Kienapple
principle. The trial judge also rejected the argument that the combination of
    the mandatory minimum for armed robbery (four years) with the mandatory minimum
    for use of a firearm in the commission of an indictable offence (one year
    consecutive) breached s. 12 of the
Charter
.

[23]

Although
    the trial judge held that the
Kienapple
principle did not preclude
    convictions on all the charges to which the appellant had pled guilty and
    rejected the appellants constitutional argument, he was alive to the many
    mitigating factors arising out of the appellants role in the offences and his
    personal circumstances. The trial judge eventually mitigated the total sentence
    imposed in three ways. First, he imposed the minimum sentences available for
    all offences that carried a mandatory minimum. Second, he made the sentences
    imposed on all the robbery charges concurrent to each other. Third, he did not
    impose custodial sentences on any of the break and enter related charges. In
    short, assuming the
Kienapple
principle had no application and the
    mandatory minimums were constitutional, the trial judge imposed the lowest
    sentence he could impose.

IV

The Conviction Appeal

[24]

This
    appeal engages the
Kienapple
principle, which provides that where the
    same transaction gives rise to two or more convictions on offences with
    substantially the same elements, the accused should be convicted only of the
    most serious offence:
Kienapple
; and
R. v. R.K.
(2005), 198
    C.C.C. (3d) 232 (Ont. C.A.), at para. 28. The
Kienapple
principle is
    designed to protect against undue exercise by the Crown of its power to
    prosecute and punish:
R.K.
, at para. 29. It applies where there is
    both a factual and legal nexus between the offences:
R. v. Prince
,
    [1986] 2 S.C.R. 480. The requisite factual nexus between the offences is
    established if the charges arise out of the same transaction, whereas the legal
    nexus is established if the offences constitute a single criminal wrong:
R.K.
,
    at para. 32.

[25]

More
    specifically, this appeal involves two potential applications of the
Kienapple
principle. The first potential application of the principle arises out of the
    robbery and unlawful confinement offences. The second possible application of
    the principle arises out of the offences of robbery with a firearm and use of a
    firearm in the commission of unlawful confinement.

[26]

Notably,
    if the unlawful confinement convictions are stayed pursuant to
Kienapple
,
    then the conviction for using a firearm in the commission of unlawful
    confinement must be quashed. Without a conviction on the unlawful confinement
    charges, there can be no conviction on the charge of using a firearm in the
    commission of the confinement:
R. v. Pringle
, [1989] 1 S.C.R. 1645
.

[27]

Turning
    first to the convictions for forcible confinement, I do not believe that these
    convictions should be stayed pursuant to
Kienapple
. It is true that
    there is a factual nexus between the robbery and forcible confinement convictions.
    The robberies and forcible confinements occurred at the same time and place.
    They were motivated by a single, common objective. No significant intervening
    events severed the factual nexus between these convictions. In short, the
    offences arose out of the same transaction.

[28]

I
    am not satisfied, however, that there is a sufficient legal nexus between the
    robberies and unlawful confinement convictions. The offences of robbery and unlawful
    confinement protect different societal interests.  The offence of confinement
    is intended to protect individual autonomy and bodily integrity.  As described
    by the Supreme Court of Canada in
R. v. Pritchard
, 2008 SCC 59, [2008]
    3 S.C.R. 195, at para. 24, unlawful confinement involves the following:

The authorities establish that if for any significant period of
    time [the victim] was coercively restrained or directed contrary to her wishes,
    so that she could not move about according to her own inclination and desire,
    there was an unlawful confinement within s. 279(2)

In discussing robbery as it relates to confinement,
    the court said, at para. 27:

Although every robbery involves an element of violence or
    threatened violence, the level of violence does not always occasion confinement
    of the significant duration required to satisfy s. 279(2) Not all robberies
    involve the domination of the victim.

[29]

On
    the facts as admitted in this case, there was domination and a coercive
    restraint of the victims of sufficient length to attract liability for
    confinement discrete from the liability for robbery. Nor, in my view, could the
    additional impact on the individuals freedom of movement and bodily integrity
    be seen as simply incidental to the robbery. The different societal interests
    protected by the two crimes are sufficient to negate any legal nexus between
    the robberies and unlawful confinements. Accordingly, I would not set aside the
    appellants unlawful confinement convictions pursuant to
Kienapple
.

[30]

However,
    even if the convictions for unlawful confinement stand, there remains the
    question of whether it offends the
Kienapple
principle to convict of
    both using the firearm in the robberies and using the firearm in the commission
    of the unlawful confinements. Was there more than one use of the firearm such
    that multiple convictions are appropriate?

[31]

Applying
    the
Kienapple
principle once more, this time to the offences of robbery
    with a firearm and use of a firearm in the commission of unlawful confinement,
    the factual nexus is again satisfied. The offences arise out of the same
    transaction. They were committed at the same time and place, in furtherance of a
    single, common objective. No significant intervening events severed the factual
    connection between the offences.

[32]

The
    legal nexus is also satisfied. In the circumstances of this case, the two
    offences  use of a firearm in committing robbery under s. 344 and use of a
    firearm in committing forcible confinement under s. 85  do not promote
    different societal interests, protect different victims or prohibit different
    consequences. No distinction can be drawn in this case between the use of a
    firearm in committing robbery and the use of a firearm in committing forcible
    confinement. There are no distinguishing elements between the two offences.
    Because the offences as charged are legally indistinguishable, the appellant
    was effectively punished twice for the same criminal wrong.

[33]

My
    conclusion with respect to the application of the
Kienapple
principle
    is consistent with the legislative history of ss. 85 and 344. Prior to 1977,
    there was no separate offence for using a firearm in the course of another
    criminal offence. The
Criminal Law Amendment Act, 1977
, S.C. 1976-77,
    c. 53, established such an offence, which could be charged in conjunction with
    any indictable offence. In 1995, the
Firearms Act
, S.C. 1995, c. 39,
    incorporated the aggravating feature of firearm use, and the associated
    mandatory minimum sentence, directly into the offence of robbery. At the same
    time, it excluded the application of the offence in s. 85 to robbery since
    firearm use was incorporated into the offence of robbery. This legislative
    history evinces an intention on the part of Parliament to have the offence of
    robbery subsume the aggravating feature of firearm use. It would be
    inconsistent with this intention to maintain the appellants conviction for
    firearm use based on the offence of unlawful confinement when the aggravating
    feature of firearm use has already been captured by the robbery conviction.

V

The Sentence Appeal

[34]

Given
    my conclusion on the conviction appeal, it is unnecessary to consider the
    appellants constitutional challenge to the combined, consecutive sentences
    prescribed by ss. 85 and 344 of the
Criminal Code
.

[35]

However,
    notwithstanding the disposition of the conviction appeal, I would vary the
    appellants sentences on the armed robbery convictions and impose concurrent
    seven-year sentences on each of these counts. These are serious offences which,
    as discussed, include the aggravating feature of firearm use. They carry a
    maximum sentence of life imprisonment. Having regard to the circumstances of
    these offences and the mitigating factors identified by the trial judge, the
    total sentence imposed  eight years less three months credit for time served 
    remains appropriate and fitting.

VI

Conclusion

[36]

For
    these reasons, I would set aside the appellants convictions for using a
    firearm in the commission of an unlawful confinement, but maintain the total
    sentence of seven years, nine months imprisonment imposed by the trial judge.

Released: DD November 12, 2013

M.H. Tulloch J.A.

I agree. D.H.
    Doherty J.A.

I agree. S.T. Goudge
    J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.A. Blair
    J.A.





[1]
The armed robbery counts (Counts 21, 39, and 75) carried mandatory minimum
    penalties of four years. The charge of using an imitation firearm in the
    commission of an indictable offence carried a mandatory minimum of one year
    consecutive, for a total of five years.


