



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lariviere, 2020 ONCA 324

DATE: 20200526

DOCKET: C68298

MacPherson,
    Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Lariviere

Appellant

Brian Lariviere, acting in person

Gerald Chan, acting as duty counsel

Andrew Hotke, for the respondent

Heard: May 20, 2020 by Teleconference

On appeal from
    the sentence entered on October 4, 2019 by Justice David J. Nadeau of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant entered pleas of guilty to four
    criminal offences: aggravated assault (
Criminal Code
, R.S.C. 1985, c.
    C-46, s. 268); use of an imitation firearm in the commission of an indictable
    offence (s. 85(2)(a)); breach of a recognizance (s. 145(3)); and possession of
    a narcotic (fentanyl) (
Controlled Drugs and Substances Act
, S.C. 2006,
    c. 19, s. 4(1)). After receiving credit for pre-sentence custody and stringent
    bail conditions, he was sentenced to 12 months imprisonment. He appeals his sentence.

The Offences

[2]

The appellants offending happened in two
    stages.

[3]

On April 27, 2017, the appellant participated in
    a home invasion robbery with three other men. They went to the house where the
    victims apartment was located. At 3:55 a.m., while one of them stood watch
    outside, the appellant and two others, disguised with hoodies and balaclavas,
    and armed with knives and an imitation handgun, forced their way into the
    victims apartment. They demanded that he give them drugs. When the victim
    resisted, he was seriously assaulted and threatened with death. The firearm was
    pointed at him. The victim suffered serious injuries, including orbital
    fractures and the permanent loss of his sight in one eye. The appellant
    acknowledged his participation in the offences, but denied having physical possession
    of the imitation firearm or directly causing the victims injuries.

[4]

Shortly after the attack, the appellant and his
    co-accused were apprehended. The appellant was eventually released on bail. He
    entered a plea of guilty to these offences and remained on bail for a
    considerable period of time while a
Gladue
Report was prepared.

[5]

On February 22, 2019, the appellant was found
    unconscious in the washroom of a grocery store. He had overdosed on fentanyl.
    He was in possession of two more grams of the drug, in violation of his bail. This
    resulted in the further charges, to which he also pled guilty.

The Circumstances of the
    Appellant

[6]

At the time of sentencing, the appellant was 25
    years old. He has a number of convictions for property offences, including
    break and enter (x 2), as well as a prior conviction for possession of a
    controlled drug (which was not fentanyl). The appellant is a member of the
    Dokis First Nation. His circumstances were detailed in a thorough
Gladue
Report prepared for the trial judge.

The Sentencing Proceedings

[7]

The appellant served 295 days of pre-sentence
    custody, which was credited on a 1.5:1 basis, amounting to a total credit of 14
    ½ months.

[8]

It was agreed between defence counsel and the
    Federal Crown that the appellant should receive six months imprisonment on the
    drug and breach of recognizance offences, to be served concurrently to each
    other, and concurrent to the robbery and imitation firearm offences.

[9]

The appropriate sentence for the offences
    related to the home invasion was contentious. The Provincial Crown submitted
    that an appropriate sentence would be 30 months imprisonment, less pre-sentence
    custody (i.e., an additional 15 ½ months).

[10]

Defence counsel submitted that, after pre-sentence
    custody is applied and credit for stringent bail terms taken into account, the
    appellant should receive a suspended sentence.

[11]

The trial judge agreed with the Crowns
    submission that a sentence of 30 months imprisonment was required. He gave the
    appellant credit for 14 ½ months of pre-sentence custody. Applying
R. v.
    Downes
(2006), 79 O.R. (3d) 321 (C.A.), the trial judge credited the
    appellant with another 3 ½ months for stringent bail conditions. The total
    credit was 18 months, leaving 12 months left to serve. The trial judge imposed
    6 months imprisonment on the drug and breach offences, concurrent. He also ordered
    probation and made other ancillary orders.

Discussion

[12]

The appellant submits that the sentence should
    be reduced as a result of the impact of the COVID-19 pandemic on the conditions
    of his detention. He contends that a slightly reduced sentence would remain a
    fit one. The Crown resists any reduction, arguing that the appellant is close
    to his statutory release date and that prison/parole authorities should be left
    to determine when it is appropriate to release the appellant back into the
    community.

[13]

We see no reason to intervene. An effective
    sentence of three years imprisonment was appropriate. The trial judge was well
    aware of the seriousness of the offence. He referred to authority from this
    court on the appropriate length of sentences for home invasion robberies: see,
    for example,
R. v. Jacko
, 2010 ONCA 452, 101 O.R. (3d) 1. He applied
R.
    v. Gladue
, [1999] 1 S.C.R. 688 and
R. v. Ipeelee
, 2012 SCC 13,
    [2012] 1 S.C.R. 433 to the appellants circumstances, recognizing the impact of
    the intergenerational trauma experienced by his family and how it has
    contributed to his drug addiction.

[14]

There were mitigating factors in this case. The appellant
    entered pleas of guilty on both sets of charges. He expressed some remorse for
    his role in the terrible violence inflicted on the victim. He spent his time
    awaiting sentencing constructively, receiving treatment for his addiction, and finishing
    high school. However, the trial judge found that these considerations were
    outweighed by the serious injuries suffered by the victim.

[15]

The appellant does not in any way suggest that
    the original sentence imposed was unfit.

[16]

The COVID-19 pandemic does not impel us to
    intervene and disturb a sentence that is fit:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089. We adopt the approach from
R. v. Morgan
,
    2020 ONCA 279, in which this court recognized the impact of this virus on our
    society, at para. 8:

We do, however, believe that it falls within
    the accepted bounds of judicial notice for us to take into account the fact of
    the COVID-19 pandemic, its impact on Canadians generally, and the current state
    of medical knowledge of the virus, including its mode of transmission and
    recommended methods to avoid its transmission.

[17]

However, there is nothing about the particular
    circumstances of the appellants incarceration, nor any indication of a unique
    or personal vulnerability, that would justify shortening the fit sentence that
    was imposed.

[18]

We were advised that the appellant was denied
    parole on February 20, 2020. However, his statutory release date is fast
    approaching, on June 8, 2020 and he will likely be out of the prison
    environment by then.


Disposition

[19]

Leave to appeal sentence is granted, but the
    appeal is dismissed.

J.C. MacPherson J.A.

Gary Trotter J.A.

G. Pardu J.A.


