



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Lebrun,









2011 BCCA 42




Date: 20110128

Docket: CA038286

Between:

Regina

Respondent
(Plaintiff)

And

Anthony Roland
Lebrun

Appellant
(Defendant)




Before:



The Honourable Mr. Justice K. Smith





The Honourable Madam Justice Bennett





The Honourable Madam Justice Garson




On appeal of sentence from:
Provincial Court of British Columbia, June 18, 2010
(
R. v. Lebrun
, Port Coquitlam Registry No. 80542-2C)

Oral Reasons for Judgment




Counsel for the Appellant:



H.M. Patey





Counsel for the Respondent:



E.A. Campbell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2011






[1]

GARSON J.A.
:  Anthony
Roland Lebrun applies for leave to appeal and, if leave be granted, he appeals
a global sentence of six years i
mposed by a
Provincial Court judge
on June 18, 2010, following his guilty plea to
charges of forcible confinement, and illegal use of a

firearm while committing
forcible confinement.

[2]

T
he actual sentence for the two offences
was as follows:  four and one-half years for the unlawful confinement and
one and one-half years consecutive for the use of a firearm while committing an
offence. This sentence was reduced by three and one-half years to reflect
credit for 21 months served in pre-trial custody. Therefore the custodial sentence
imposed on him was one year for the charge of unlawful confinement and one and
one-half years for the firearm offence, for a total sentence of two and
one-half years.

[3]

Mr. Lebrun raises two
grounds of appeal. First he says the sentence is unfit because it is outside
the range of sentences usually imposed for similar offences and similar
offenders. Second he says that the judge's comments from the bench during the
sentencing, combined with her rejection of both Crown and defence submissions,
demonstrated a reasonable apprehension of bias.

[4]

On appeal, Mr. Lebrun asks
that this Court substitute a global sentence of four years.

[5]

The Crown argues that the
appeal should be dismissed.

[6]

At the
sentencing hearing the Crown had sought a 48 month global sentence. The
defence argued for time served which amounted to
42 months after granting credit for the time Mr. Lebrun had spent on remand. The
judge indicated in the course of submissions that she was considering a longer
sentence than the one recommended by either counsel.

Background facts

[7]

These offences arose from an incident that began
on September 13, 2008. Mr.
McCann, one
of the co-accused, was convinced that the two complainants, Mr. Morgan and
Ms. Cochran had stolen
a bottle of Oxycontin pills from him. During the
course of the day, the dispute escalated. At some point Mr. Lebrun told Mr.
Morgan that Mr. McCann had handed the dispute over to him, saying "its
out of Mike's hands." In other words, Mr. Lebrun took over an enforcer
type role. In doing so he and the co-accused, Mr. Pastulovic, used duct-tape to
confine Mr. Morgan and Ms. Cochran in a small bathroom in the house. Mr. Morgan
was put on the floor of the bathroom where
Mr. Lebrun and Mr. Pastulovic, wearing boots,
stomped on his neck, tore
his earrings out of his ear, struck him with the butt end of a
pump action shotgun, and threatened him in such a
way that Mr. Morgan firmly believed

he would
be killed. Ms. Cochran was similarly restrained and threatened. She eventually
managed to escape through the bathroom window. She called the police from a
neighbour's home and Mr. Morgan was thereafter rescued. Mr. Morgan was still
restrained in the bathroom when the police arrived. The police found one of the
two firearms with three shells in the magazine, one was loaded in the chamber
and the safety was in the off position. The three accused were arrested at the
home.

[8]

This terrifying ordeal had lasting impacts, both
physically and psychologically on both complainants. Mr. Morgan required
stitches for injuries administered to him while he was restrained. At the time
of the sentencing, some 21 months after the offence, he continued to complain
of pain in his neck from the blows, and as the sentencing judge said,
"...he still has a very substantial emotional and psychological response
to these
actions, [that was] evident when
he testified in the course of the preliminary inquiry, both
in terms of
how the nightmares never end and the ongoing shock and disbelief that this
could happen to him." Ms. Cochran was similarly traumatized by these
events. She too was certain that she was going to be killed. The evidence is
not clear on the length of time the complainants were restrained, but counsel
advised that it was estimated to be some three to six hours.

Mr. Lebrun's background

[9]

Mr. Lebrun has a
dated criminal record for offences far less serious than this one.
The sentencing judge said she was giving no weight to the record for
purposes of sentencing. Mr. Lebrun was 43 years of age when sentenced. The
judge noted that: he
had been hard-working
throughout his life; he had his own concrete business; he maintained a
positive
relationship with his two children, (aged at sentencing 17 and 21); he had
coached his children in their sporting activities; he had been a model prisoner
during the 21 months he had spent in
custody;
he had positive and strong support from his family and friends;  and he had
employment, as well as a home to
return to where he had a supportive,
common-law wife. Some 15 letters of support were filed by family members,
friends, associates, and employers. The theme running through these letters is
a description of Mr. Lebrun as a hard-working, loyal, reliable individual. The
judge expressed some concern that the authors of these letters may not have
been aware of the particulars of the offences.

Grounds of Appeal

Bias

[10]

Mr. Lebrun argues that this court should find
the judge demonstrated a reasonable apprehension of bias. In so arguing he
relies in part on the judge's advice to counsel that,

THE COURT:  Thank you Mr.
Lebrun. Im going to take a break to think about what Im going to do. Counsel,
Ill tell you that walking into the courtroom this morning I was thinking of a
number of considerably higher than four years. I was in the range of double
that because of the nature of this incident, and I need to think about that a
bit longer.
Some of my remarks will have probably flagged that those are more
of the direction of my concerns here, but this has all brought - - this has all
been forced with - - the firearm is the part that concerns me the most in terms
of moving it beyond the range thats been spoken to. So I am going to go away
and think about it for the break and if either of you want to address that,
youre welcome to do that after the break as well, because I am at the moment
of two minds, but I think in fairness I need to tell you that. Well stand down
for 15 minutes.

[11]

In concluding her sentence she said, I am
persuaded that I can be moved from my original impression or thought as to what
the sentence would be.

[12]

Mr. Lebrun argues that these
comments made by the judge give rise to a reasonable apprehension of bias. He
says that the comments indicate the judge had a firmly held view as to the
appropriate sentence before the sentencing proceedings began. He
contends that rather than having an open mind as
to a fit sentence, the judge viewed counsel's role as needing to persuade her
to depart from her pre-determined decision
as to the length of a fit
sentence.

[13]

The Crown contends that
these comments, and others, taken in context do not reflect a closed mind but
rather one that was open and inviting of submissions. The Crown notes that the
judge appropriately alerted counsel to the fact that she was considering a
higher sentence than the one recommended by both counsel. It was, the Crown
says, appropriate for the judge to alert counsel to her concerns and allow them
the opportunity to address those concerns. The Crown says that it is important
to note the context of the judge's submissions. She had presided at the
preliminary inquiry so she was familiar with the particulars of the offence
before the sentencing hearing began.

[14]

On appeal, the issue is
whether the judge's comments may reasonably be construed as indicative of the alleged
apprehension of bias.

[15]

The
test for appellate review where bias is alleged was articulated by Cory J. in
R.
v.
R.D.S.,
[1997] 3 S.C.R. 484, at paras. 104 and 105:

104      In
Valente v. The Queen
, [1985] 2 S.C.R. 673,
at p. 685, Le Dain J. held that the concept of impartiality describes "a
state of mind or attitude of the tribunal in relation to the issues and the
parties in a particular case". He added that "[t]he word 'impartial'
. . . connotes absence of bias, actual or perceived". See also
R. v.
Généreux
, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense,
impartiality can be described -- perhaps somewhat inexactly -- as a state of
mind in which the adjudicator is disinterested in the outcome, and is open to
persuasion by the evidence and submissions.

105      In contrast, bias denotes a state of mind that is in
some way predisposed to a particular result, or that is closed with regard to
particular issues. A helpful explanation of this concept was provided by Scalia
J. in
Liteky v. U.S.
, 114 S.Ct. 1147 (1994), at p. 1155:

The words [bias or prejudice]
connote a favorable or unfavorable disposition or opinion that is somehow
wrongful
or
inappropriate
, either because it is undeserved, or because it rests
upon knowledge that the subject ought not to possess (for example, a criminal
juror who has been biased or prejudiced by receipt of inadmissible evidence
concerning the defendant's prior criminal activities), or because it is
excessive in degree (for example, a criminal juror who is so inflamed by
properly admitted evidence of a defendant's prior criminal activities that he
will vote guilty regardless of the facts). [Emphasis in original.]

Scalia J. was careful to stress
that not every favourable or unfavourable disposition attracts the label of
bias or prejudice. For example, it cannot be said that those who condemn Hitler
are biased or prejudiced. This unfavourable disposition is objectively
justifiable - - in other words, it is not wrongful or inappropriate:
Liteky
,
supra
, at p. 1155.

[16]

And at paragraph 107, he
concluded his discussion of the concept of bias by noting that
to establish bias, "It must be demonstrated
that those beliefs, opinions or biases prevent
[the decision-maker] from
setting aside any preconceptions and coming to a decision on the basis of the
evidence." (citation omitted.)

[17]

In
R. v. Bertram
, 1989 CarswellOnt 1511
[1987] O.J. No. 2123, Watt J. had this to say about a judge expressing his
views during the course of submissions on sentence:

[68]      It is no doubt accurate
to observe that the learned Provincial Court judge, on occasion, indicated the
appropriateness of the terms of imprisonment which were to have been the
subject of the joint submission, but he equally made it plain that sentence would
be determined on the basis of evidence and submissions. It would scarcely seem
unusual that, when a range of sentence or a specific sentence is suggested by
counsel, a judge daily involved in criminal cases may have some views on its
appropriateness and express them to counsel. That he or she does so could
scarcely be a ground of disqualification on account of a reasonable
apprehension of bias else the work of the criminal courts would never be done.
Judges are required to approach the task of sentencing, as other tasks in the
trial and disposition of criminal cases, with a mind that is and appears to be
open to reason and persuasion, not with one that is empty of it and unschooled
by experience. Neither is a judge required to remain mute during proceedings.
Views may be expressed and exchanged with counsel. To do so is not, per se, to
create, in every case, a reasonable apprehension of bias. In the entire
circumstances of this somewhat unusual case, I am not persuaded that what here
occurred demonstrates a case of reasonable apprehension of bias or other
jurisdictional error.

[18]

I agree with the comments made by Watt J. And I
believe his comments are equally applicable to this case.

[19]

The sentencing judges comments,
said to be indicative of bias, include her comment that she thought the authors
of the reference letters did not "have the foggiest clue" about the
nature of the offence. The judge said that she would have expected the letters
to have
acknowledged in the context of
their description of Mr. Lebrun's positive character
some sense of
shock at what he had done.

[20]

In this case, the judge's
comments, taken in the context of the whole proceeding, show that she was
particularly troubled by Mr. Lebrun's gratuitous violence, by the significant
impact on the complainants, and by Mr. Lebrun's seemingly inexplicable
involvement over someone else's trifling affair. She described his conduct as
having been motivated by a misplaced sense of loyalty. That she communicated
clearly to counsel she was considering the offence in a more serious light than
Crown or defence is not evidence of bias. It was necessary for her to
communicate to counsel that she was considering a much longer sentence than
either of them expected and to invite further submissions. Her comments before
she retired to consider her decision clearly indicate she was giving anxious
consideration to all that had been said and was weighing the mitigating factors
against her view as to the seriousness of the offence. I disagree with the appellants
submission that the judge had a fixed starting point from which she began her
consideration of the appropriate sentence. Rather, after she retired she heard
further submissions from defence counsel. I see nothing either untoward or
indicative of bias in these comments. I would not accede to this ground of
appeal.

Fitness of Sentence

[21]

I turn next to the
second ground of appeal. That is the argument that the sentence
is not fit. Mr. Lebrun's counsel says the judge over-emphasized the
use of a gun as an aggravating factor, and under-estimated the mitigating
personal circumstances.

[22]

Appellate courts must show great deference to sentencing decisions of a
trial judge. Only if the sentence is not fit or if the judge erred in principle
should the Court interfere on appeal.
R. v. L.M.
, 2008 SCC 31, [2008] 2
S.C.R. 163 at para. 14.

[23]

Mr. Lebrun contends that the judge placed undue
emphasis on his use of a firearm (it was already accounted for in the minimum
mandatory consecutive sentence under s. 85(3)(a) and 85(4) of the
Criminal Code
),
and that she failed to give sufficient weight to Mr. Lebrun's
otherwise non-violent conduct and substantial community
support.

[24]

Section 85(3)(a) provides
that a judge must sentence an offender to a mandatory minimum sentence of one
year for offences that include the use of a firearm while committing an indictable
offence. Subsection (4) mandates that that sentence be served consecutively to
any punishment imposed on the person for an offence arising out of the same
event.

[25]

Mr. Lebrun's argument seems
to rest on the notion that where an offender is sentenced under s. 85(1) no
account should be taken of the use of a firearm as an
aggravating factor in the overall consideration of the main offence, in
this case unlawful
confinement (s. 279(2)). The judge considered the use
of the firearm as a significantly aggravating factor. Its use cannot be
entirely separated from her consideration of the unlawful confinement. The
aggravating factors she mentioned are the following:

·

More than one firearm was used in the commission of the offence.

·

The firearms were brought into the house specifically to be used
during this incident.

·

One of the firearms was loaded, had a shell in the chamber, and
had the safety in the off
position when the police arrived.

·

The appellant used the firearm to scare or threaten the
complainants.

·

As a consequence of the use of the firearms both complainants
believed they were going to be
killed. Mr. Morgan specifically became fearful of being killed when the firearm
was used to threaten him.

[26]

In my view s. 85(1) is intended to be an
additional consecutive sentence for precisely the type of incident that
occurred in this case. If, as Mr. Lebrun contends, a judge is to discount the
use of the gun in the main offence, then there would be no additional penalty under
s. 85(1) which seems contrary to the intention of the section. I would not
accede to this argument on appeal.

[27]

Counsel for Mr. Lebrun also
argues that the sentence was not fit given the circumstances of this offender
and this offence. He argues that even for home-invasion type offences involving
firearms, lesser sentences than in the case at bar have been imposed. Both
counsel referred to a series of home invasion type cases as guidance in this
sentencing.

[28]

Both parties rely on
R.
v. N.P.D.
,

2002 BCCA 304, in which a 19 year old accused with a
serious
related record was sentenced to an
effective sentence of five and one-half years.
N.P.D.
plead guilty (in connection with a
home invasion type offence) to unlawful confinement, assault with a weapon,
breaking and entering a dwelling and having his face masked with intent to
commit an indictable offence. He tied up the occupants of the house with zap
straps and one of the intruders stood guard over the occupants with a gun. The
incident lasted about 15 minutes. Madam Justice Levine, speaking for the court,
said at para. 20 that the appropriate range for a home invasion type of offence
had been established by the Court to be five to eight years.

[29]

In
R. v. Bernier
,
2003 BCCA 134, a five judge division of this Court considered the wide ranging
and possibly conflicting authorities on sentences imposed in home invasion type
offences. In that case, the Court reduced Mr. Berniers sentence of 14 years to
six years. Mr. Bernier had broken into a home, struck one of the occupants with
a gun, briefly confined the occupant and stolen money.

[30]

In
R. v A.J.C
., 2004 BCCA 268, this Court noted that the range
for serious home invasions was nine to 10 years and higher than that for more
egregious home invasions (para. 45). The charges to which
A.J.C
. had
pleaded guilty, included kidnapping, breaking and entering, unlawful
confinement and having his face masked while committing those offences. On
appeal the sentences were
reduced from 14 years to 11 years
. In this
case, the home invasion was planned in order to terrorize the victims in an
effort to force payment of $50,000. The intruders were armed with sawed-off
shotguns, pepper-spray and at least one knife. The intruders were in the home
for three hours. These facts led the Court to conclude that that case was a
more serious home invasion meriting 11 years. In a helpful review of the recent
home invasion sentencing cases, at paragraph 33, Chief Justice Finch, speaking
for the court, discussed the
Bernier
case and several subsequent cases:

33        After sentences were pronounced in the present
cases, a division of five judges heard the sentence appeal in
R. v. Bernier
(2003), 177 C.C.C. (3d) 137, 179 B.C.A.C. 218, 2003 BCCA 134. A five judge
panel was appointed specifically because of the perceived uncertainty as to the
appropriate range of sentence for "home invasion" type cases in light
of
N.P.D.
,
supra
and
D.A.W.
,
supra
.

34        In
Bernier
,
supra
, the court
unanimously agreed to reduce the appellant's sentence from 14 years to six
years for convictions of breaking and entering a residence to commit robbery,
robbery, assault, and possession of stolen property. It is significant that the
Crown proved that Bernier planned the home invasion but not that he was present
during its execution. He was therefore convicted as a party rather than a
principal to the offences.

35        Although the court in
Bernier
gave three
concurring judgments, several important points emerge. First, this court's
references to sentence "ranges" serve merely as guidelines for
sentencing judges. They are not conclusive of the appropriate sentence in any
given case. As Southin J.A. (Hollinrake J.A. concurring) explained at [paragraph]
40-42:

[40]  As to the term
"range", in sentencing cases its proper use, in my opinion, is only
as a short way of describing what the court has done in previous appeals in
which the offence and the offender were similar to those in the case at bar.
The reason is this: no division of this Court has the power to bind other
divisions on future sentence appeals.

[41]  While the past is a prelude
to the present, the past cannot always govern the present, nor can what we say
now determine the future.

[42]  A "range" does not
preclude on grounds of deterrence or denunciation or the gravity of a
particular offence a sentence different from that "range". Nor does a
"range" preclude a lesser sentence if some special circumstances
warrant such a course. When considering any particular case similar to
R. v.
D.A.W.
or to
R. v. N.P.D.
or to this case, trial judges and this
court will have in mind those sentences as part of the "range". The
"range" is not conclusive.

See also [paragraphs] 73-75 per Prowse J.A. (Levine J.A. concurring);
and [paragraphs] 96, 105-106 per Newbury J.A.

36        Second, the task of arriving at appropriate
"ranges" of sentence for "home invasion" type crimes is
particularly difficult given the different combinations of offences that may
actually be committed. Prowse J.A. stated at [paragraphs] 81-82:

[81]  As noted by my colleagues,
the difficulty with a discussion of range of sentences with respect to home
invasions is that there is no single crime known as "home invasion".
Rather, that term is loosely used as a shorthand expression for a combination
of offences involving a breaking and entering with intent to commit theft or
robbery, with knowledge or recklessness as to whether the dwelling is occupied
at the time, and frequently involving an assault on one or more occupants.

[82]  Because the combination of
crimes charged in these cases will vary to some extent, it is difficult to
determine a relevant range of sentence. For this reason, the Court should
exercise more caution than usual in attempting to suggest general ranges of
sentence for home invasions.

See also [paragraphs] 36-37 per Southin J.A.; [paragraph] 97
per Newbury J.A.

37        Third, and finally, a sentence of 14 years, such as
that which the sentencing judge imposed on
Bernier
, should be reserved
for the most egregious and severe types of "home invasion" cases.
Southin J.A. stated that 14 years seemed higher than any sentence she had seen
for breaking and entering to commit theft ([paragraph] 49) and that it
"... appears to me to be giving up any hope or prospect that the applicant
might be rehabilitated and become a useful member of the community"
([paragraph] 52). Prowse J.A. generally agreed with these observations
([paragraph] 84, 87); see also Newbury J.A. at [paragraph] 107.

38        This court has decided two cases since Bernier that
are relevant.

39        In
R. v. Leggo
(2003), 184 B.C.A.C. 150,
2003 BCCA 392 [
Leggo
], the appellant and a co-accused were armed with a
wooden bat and imitation revolver. They kicked in the front door of a residence
and struck the occupant on the back of the neck with the revolver. The
intruders tied the victim up with duct tape and shoe lace, kicked him
repeatedly, and dragged him down a hallway where he was left lying face-down on
the floor. They stole some marijuana, $7800 in cash and other personal items
and then left the residence. The appellant was 32 years old and had a lengthy
criminal record. The trial judge found that there were no mitigating factors.
The accused was sentenced to eight and a half years overall, in addition to
eight months pre-trial custody, for break and enter to commit robbery, unlawful
confinement, possession offences and using a firearm during a robbery. This
court affirmed the effective global sentence of 9 years and 10 months.

40        In
Barton
,
supra
, this court upheld a
sentence of effectively 14 years for an especially brutal "home
invasion" which resulted in convictions for manslaughter and robbery. In
that case, the appellant and a co-accused were armed with a gun and knife and
forced their way into a house to complete a planned robbery. A confrontation
with one of the occupants of the home ensued, in which he was killed. Barton
appeared to have played a lesser role in the death, but this court accepted the
trial judge's finding that he was as morally culpable as the co-accused because
this was a planned joint venture. The appellant was 22 years of age and
aboriginal. He had a lengthy record and led no evidence of any efforts at
rehabilitation. This court upheld the sentence of 11 years for manslaughter and
seven years concurrent for robbery, after giving credit for 20 months of
pre-sentencing custody. I therefore take the case to support a sentence of
approximately 14 years.

41        In my view, the 15 year
sentence imposed in
Jones
,
supra
, and the 14 year sentence
effectively imposed in
Barton
,
supra
indicate the length of
sentence which may well be appropriate in the most aggravated circumstances
where a "home invasion" involves not only a break and enter to commit
robbery, the terrorizing and confinement of victims, and the use of weapons to
achieve these objectives, but also the infliction of serious injuries, sexual
assault or death.

[31]

The case before the court is not a home invasion insofar as the
complainants were tenants of Mr. McCann. However the events do resemble home
invasion scenarios, and I agree that it was appropriate for the parties to
treat this case as a home invasion in order to obtain some guidance from the
case authorities. That being the case, in my view, the violence in this case places
it towards the more serious end of the spectrum. The length of time that the
complainants were confined, the violence that was perpetrated upon them, as
well as the threats to their lives are all factors that point to a longer
sentence. The judge took into account all these factors as well as the
mitigating factors. Mr. Lebruns personal circumstances and strong involvement
in family and community life were clearly factored into her sentence, including
the fact that the offence seemed out of character given Mr. Lebruns background.
Balanced against these mitigating factors was the extreme degree of violence
administered to the complainants for no really explicable reason. The
sentencing principles of denunciation and general deterrence are important factors
in this case and ones that would tend to support the fitness of the sentence
imposed by the trial judge. I would not find that her sentence was unfit or in
any way inconsistent with the range of sentences given in the cases mentioned. Indeed,
as the Crown says, a considerably higher custodial sentence would not have been
inconsistent with the authorities.

[32]

I would grant leave and dismiss the appeal.

[33]

K. SMITH J.A.
:  I agree.

[34]

BENNETT J.A.
:  I agree.

[35]

K. SMITH J.A.
: Leave to appeal is granted and the appeal is
dismissed.

"The Honourable Madam Justice Garson"


