



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2019 ONCA 161

DATE: 20190228

DOCKET: C65049

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leon McIntyre

Appellant

Breana Vandebeek and Christopher Rudnicki, for the
    appellant

Carmen Elmasry, for the respondent

Heard: February 25, 2019

On appeal from the sentence imposed on December 2, 2016 by
    Justice S. Akhtar of the Superior Court of Justice, with reasons report at 2016
    ONSC 7498.

REASONS FOR DECISION

[1]

This is a sentence appeal.  The appellant received a global sentence
    of six years for a number of offences including robbery with a restricted
    firearm.  That offence carries a minimum sentence of five years.

[2]

At the end of oral argument, the court advised counsel that the appeal
    would be dismissed with reasons to follow.  These are our reasons.

[3]

We need not set out the facts in any detail.  The appellant and another
    person, a young offender, accosted the victim outside of his home on an early
    summer evening.  They had decided to steal the victims car.

[4]

The victim was working on the car when he was approached by the
    appellant and his accomplice.  The victims young son was with him.

[5]

The appellant was armed with a loaded handgun.  A struggle ensued.  The
    appellant pointed the loaded handgun at the victim.  He grabbed the car keys
    and struck him across the face with the gun knocking the victim unconscious for
    a few moments.  The victim needed 13 stitches to close the head injury and
    another 2 to his hand.

[6]

The appellant and the accomplice took the victims car and fled the
    scene.  They were arrested nearby after a high speed chase.

[7]

At the time of this incident, the appellant was under a court order
    prohibiting him from possessing any firearms.

[8]

The appellant advances essentially three grounds of appeal.  He argues
    that the mandatory five year minimum in s. 344(1)(a)(i) violates s. 12 of the
Charter
and should be struck down.  The appellant also submits that the trial judge
    erred in failing to give the appellant enhanced credit for his pre-sentence
    custody in light of the conditions in the detention centre.  Finally, the
    appellant submits that the trial judge erred in principle by failing to give
    adequate weight to the personal circumstances of the appellant in the years
    after he came to Canada and in failing to give adequate effect to the restraint
    principle as applied to the sentencing of young first offenders.

The Constitutional Claim

[9]

The appellant does not argue that the five year minimum sentence is
    grossly disproportionate as applied to him.  He submits, however, that it is
    grossly disproportionate having regard to reasonable hypotheticals.

[10]

The
    case law is against the appellants constitutional claim.  In
R. v.
    MacDonald
[1998] O.J. No. 2990, this court upheld the mandatory four year
    minimum sentence on a charge of robbery with a firearm (s. 344(1)(a.1)).  In
    our view, the analysis in
MacDonald
is equally applicable to the five
    year minimum imposed for robbery with a prohibited or restricted firearm under
    s. 344(1)(a)(i).

[11]

The
    holding in
MacDonald
is consistent with case law from other provinces
    involving minimum penalties for the commission of robbery with a firearm: see
R.
    v. McIvor
, 2018 MBCA 29;
R. v. LaPierre
(1998) 123 C.C.C. (3
rd
)
    332 (QCA);
R. v. Wust
(1998) 125 C.C.C. (3rd) 43 (BCCA).
McIvor
is particularly germane as it applies the reasoning in
MacDonald
to
    uphold the five year mandatory minimum for the offence of robbery with a
    restricted firearm.

[12]

The
    appellant submits that this court should not follow
MacDonald
because
MacDonald
was decided at a time when the reasonable hypothetical methodology used to
    analyze a s. 12 claim was undeveloped.  The appellant submits that more recent
    Supreme Court of Canada jurisprudence, and in particular
R. v. Nur
2015 SCC 15 provides a clearer indication of how reasonable hypotheticals
    should be employed in the s. 12 analysis.

[13]

We
    do not read
Nur
as changing the reasonable hypothetical analysis in
    any way.  Indeed, Chief Justice McLachlan for the majority was at some pains to
    make it clear that the s. 12 inquiry based on reasonable hypothetical was well
    entrenched in that courts case law and in her view, workable as it stood: see
Nur
at para. 47-65.
Nur
confirmed the reasonable hypothetical approach
    developed in the previous case law.  This court followed that approach in
MacDonald
:
    at para. 16.

[14]

Next,
    the appellant argues that
MacDonald
is distinguishable because
MacDonald
upheld the constitutionality of the four year minimum based on the availability
    of credit for pre-sentence custody at a 2:1 ratio in appropriate cases to
    reduce the mandatory minimum.  The appellant submits that 2:1 credit is no longer
    available for pre-trial custody rendering the result in
MacDonald
open
    to doubt.

[15]

MacDonald
did not turn on the quantum of the credit available for pre-trial custody.  The
    issue in
MacDonald
as it related to pre-trial custody was whether any
    credit could be given for pre-trial custody if that credit would reduce a
    sentence below the mandatory minimum.  Some courts had held that no credit
    could be given.  In
MacDonald
, this court acknowledged that if no
    credit could be given for pre-sentence custody, the mandatory minimum penalties
    for robbery with a firearm were in constitutional jeopardy.  However, the court
    held that credit be given for pre-trial custody under the generally applicable
    provisions in respect of pre-trial custody found in the
Criminal Code
even if that credit reduced the sentence below the mandatory minimum: see
MacDonald
at para. 65, 83.  The constitutional outcome in
MacDonald
did not turn
    on the availability of 2:1 credit for pre-trial custody.

[16]

The
    appellant cannot distinguish
MacDonald
.  In our view, the analysis in
MacDonald
applies here.  Like the Manitoba Court of Appeal in
McIvor
, we are
    satisfied that the minimum penalty in s. 344(1)(a)(i) is constitutional.

Did the Trial Judge Err in Failing to Give Additional Credit
    for Pre-Sentence Custody?

[17]

The
    trial judge gave the appellant credit on a 1.5:1 ratio for his lengthy
    pre-sentence incarceration.  The appellant argued that in the circumstances in
    which he was incarcerated, he should receive enhanced credit.  The appellant
    pointed to the number of lock downs at the institution and the numerous
    occasions on which inmates were triple bunked.

[18]

This
    argument was made before the trial judge.  The trial judge accurately
    summarized the evidence relating to the jail conditions and acknowledged that
    in law he could give enhanced credit for harsh conditions during pre-trial
    custody.

[19]

In
    declining to give enhanced credit, the trial judge described the actual impact
    of the conditions on the appellant as unclear on the evidence.  He also noted
    that the appellant had compiled a significant number of misconduct findings
    while in custody awaiting trial.  The trial judge ultimately found that having
    regard to all of the factors relevant to the appellants pre-sentence
    incarceration, enhanced credit was not appropriate.

[20]

We
    see no reason to interfere with the trial judges exercise of his discretion. 
    The trial judge was alert to the evidence and the applicable legal principle. 
    The fact that he was not prepared to accept the appellants assertions
    concerning the impact of the conditions on him at face value is no reason to
    decline to defer to the trial judges assessment.

Did the Trial Judge Err in Failing to Consider Certain
    Mitigating Factors on Sentence?

[21]

The
    appellant was just over 18 years old when he committed these offences.  He had
    no prior criminal record as an adult.  The offences were, however, very
    serious.  The robbery involved significant violence and the use and possession
    of a loaded hand gun.  It is also significant that the appellant was under a
    weapons prohibition at the time of the offence.  That prohibition had been
    imposed only two months before the appellant committed these offences.

[22]

The
    trial judge recognized that in sentencing young offenders, individual
    deterrence and rehabilitation are the primary objectives.  He also recognized,
    however, as this court has repeatedly held, that crimes involving serious
    violence require emphasis on denunciation and general deterrence no matter the
    age of the offender.  Nothing in the trial judges reasons suggests a failure
    to take the mitigating factors stressed by the appellant in this court into
    account.  Nor is the total sentence imposed of six years manifestly excessive. 
    We are not satisfied that the trial judge fell into any error in principle in
    imposing the sentence he did.

[23]

The
    appeal is dismissed.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


