



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boudrias, 2020 ONCA 484

DATE: 20200729

DOCKET: C67365

Strathy C.J.O., Gillese and Watt
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alain Boudrias

Appellant

Paolo Giancaterino, for the appellant

Samuel Greene, for the respondent

Heard: in writing

On appeal from the convictions entered
    on June 1, 2018, and the sentence imposed on September 6, 2018, by Justice
    Ronald M. Laliberté of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Following trial by judge alone, the appellant
    was convicted of robbery, possession of a weapon for a dangerous purpose, and
    two breaches of probation. He was sentenced to 40 months imprisonment, less
    five months credit for pre-trial custody.

[2]

The appellant appeals against both conviction
    and sentence.

[3]

For the reasons that follow, we dismiss both appeals.
    However, we set aside t
he victim surcharge imposed on
    the appellant.

BACKGROUND IN BRIEF

[4]

On May 12
th
, 2016, after drinking
    with friends, the appellant called a cab and was picked up from his residence. He
    got into the front passenger side of the cab and indicated where he wanted to
    go by gesturing which streets the cab driver was to take. A physical altercation
    then took place between the appellant and the cab driver.

The Altercation

[5]

On the findings of the trial judge, the altercation
    unfolded as follows. After travelling a short distance in the cab, the meter
    showed the fare as $10. Instead of paying, the appellant produced a knife, held
    it in the area of the cab drivers throat and chest, and demanded money. The cab
    driver managed to call 911 on his cellphone and tried to leave the cab. He
    either fell to the ground or was pushed by the appellant. The appellant
    assaulted the cab driver while he was on the ground outside the cab. A
    bystander witness observed the assault.  He saw the appellant on top of the cab
    driver, throwing punches, and said it was the appellant who was the aggressor.
    The police later found a knife in the front seat of the cab where the appellant
    had been sitting. The police officers who arrived on the scene observed the
    appellant walking away; he appeared intoxicated.

[6]

In making these findings, the trial judge
accepted the evidence of the complainant cab driver (the
    complainant), the two police officers who arrived at the scene, and the
    bystander witness who observed the assault outside the cab. In accepting the
    evidence of the bystander witness, the trial judge found that he was credible,
    reliable, had a clear view of the events, did not know any of the parties, and had
    no interest or stake in the matter.

[7]

The trial judge also relied on an agreed
    statement of facts which showed, among other things, that at the time of the
    altercation, the appellant was bound by two probation orders that required him
    to keep the peace and be of good behaviour.

The Credibility
    Determinations

[8]

The complainant testified at trial. He was
    inconsistent about some details of the incident, including whether the
    appellant demanded money when he held the knife to his throat, whether he fell
    or was pushed to the ground outside the cab, and whether his cell phone fell
    out of the cab or he threw it out the window.

[9]

The trial judge found the complainant to be credible
    and reliable, and accepted his version of events. He acknowledged the
    inconsistencies in the complainants evidence and found them to be understandable,
    partly because of the complainants challenges with the English language and
    his need to testify through an interpreter. He noted that the complainant had
    been consistent throughout in his description of the actual robbery. That
    version of events was also consistent with the police having found the knife in
    the cab where the appellant had been sitting and where the offence took place. As
    well, it was consistent with the evidence of the independent bystander witness.

[10]

The appellant testified at trial. He said that,
    on the evening in question, he was drinking with his friends at a bar and his
    friends invited him to go to a second bar. He had six beers and was not
    intoxicated. He did not have money for a cab but his friends offered to pay for
    it. He declined and walked home. Once home, he changed his mind and called a
    cab so he could meet his friends at the second bar. Part way through the cab
    ride he changed his mind again and directed the cab back to his home. He knew
    he did not have money for the fare but offered the driver his wallet, with his
    bank card and ID, as security. The complainant became angry, would not let him
    out of the cab, and started the physical fight. The appellant said he was defending
    himself but admitted to using excessive force. He testified that he had never
    seen the knife before, had not taken it with him into the cab, and had not used
    it to threaten the complainant.

[11]

The trial judge disbelieved the appellant,
    finding him to be neither credible nor reliable. He began by noting the
    appellants long history of crimes of dishonesty. He explained why he found the
    appellants narrative of events to be suspect and unusual. He then explained how
    it was contradicted by the evidence of the independent bystander witness, the
    fact that the police did not find a wallet on him or at the scene, and that the
    bystander witness and police witnesses said the appellant appeared intoxicated.

Sentencing

[12]

The Crown sought a prison term of three and a
    half years less pre-trial custody.  The defence sought a sentence of two years
    in prison plus pre-trial custody. After identifying a number of aggravating
    factors, the defence referred to the appellants efforts to deal with his
    addiction to drugs and alcohol.

[13]

The sentencing judge set out the legal principles
    that govern sentencing, including the jump principle, and then considered the
    appellants personal circumstances.  He was 41 years of age at the time of
    sentencing and had three children and a grandchild. Although he had once worked
    as a painter, he was on ODSP for mental health issues such as anxiety,
    depression, and ADHD. He had a long-standing addiction to hard drugs and
    alcohol and had made efforts to address his substance abuse issue.

[14]

The judge identified the appellants efforts at
    addressing his addiction issues as a mitigating factor but noted that the
    appellant had made the same submissions in sentencing proceedings in 2011 after
    he pleaded guilty to a robbery.

[15]

The judge referred to the serious nature of
    robbery, the appellants use of a knife in order to steal money, the fairly
    violent attack on the complainant, the element of planning inferred from the
    appellant having taken the knife with him and directing the complainant on the route
    he was to take, the vulnerability of cab drivers, and that the appellant was
    under two probation orders at the time of the attack.  He described the
    appellants lengthy criminal record, spanning from 1994 (when the appellant was
    a youth) to 2015, for crimes of dishonesty, including the robbery mentioned
    above for which he was sentenced to 20 months imprisonment, and other crimes of
    violence that included assaults, assaulting a peace officer, and criminal
    harassment.  As well, there were many convictions for breaches of court orders.

[16]

The judge concluded that these factors made
    denunciation and deterrence, both specific and general, of heightened
    importance. He stated that the record would suggest that attempts at
    rehabilitation have failed thus far.

[17]

He then sentenced the appellant to 40 months
    imprisonment, less five months credit for pretrial custody: 36 months for the
    robbery, 12 months concurrent for possession of a weapon, and four months for
    each breach of probation, concurrent to one another but consecutive to the
    robbery.

THE ISSUES

[18]

The appellant raises one issue on the conviction
    appeal: did the trial judge apply a higher standard of scrutiny when assessing
    his credibility as compared to that of the complainant?

[19]

The appellant raises two issues on the sentence
    appeal. Did the sentencing judge err in failing to: apply the jump principle;
    and give appropriate weight to rehabilitation?

THE CONVICTION APPEAL

Did the trial judge err by unevenly
    scrutinizing the evidence of the appellant and the complainant cab driver?

[20]

The appellant submits that the trial judge took
    even the slightest opportunity to reject the appellants evidence and was
    uncommonly forgiving of similar problems in the complainants testimony. He
    says that there were significant inconsistencies in the complainants testimony
    that went to the heart of the allegations and that, had the trial judge applied
    the same standard when assessing the credibility of the complainant and the appellant,
    the complainants testimony would have raised a reasonable doubt as to his guilt.

[21]

We do not agree.

[22]

It is trite law that the standard for uneven
    scrutiny is high, and the trial judges findings on credibility are owed
    deference: see
R. v. Chanmany
, 2016 ONCA 576, 338 C.C.C. (3d) 578, at
    paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88. We see no basis
    on which to interfere with the trial judges credibility findings. Those
    findings were fairly made and well grounded in the evidence.

[23]

The judge was not uncommonly forgiving of
    frailties in the complainants evidence. He accepted the complainants evidence
    because he found it to be believable and corroborated by the other evidence.
    The trial judge acknowledged the peripheral inconsistencies in the
    complainants evidence but found them to be due, in part, to the complainants
    limited ability to speak English.

[24]

As we explain above, the trial judge rejected
    the appellants evidence because of his long-standing and repeated crimes of
    dishonesty, its inherent implausibility, and it was contradicted by the
    evidence of the impartial eye-witness and the physical evidence, which included
    the location of the knife and the absence of the appellants wallet.

THE SENTENCE APPEAL

Did the sentencing judge err in failing to
    apply the jump principle?

[25]

In 2011, the appellant was sentenced to 20
    months imprisonment after pleading guilty to robbery. That robbery involved
    threats, but no physical violence, against a 71-year-old man operating a MoneyMart.
    In these proceedings, he was sentenced to 36 months imprisonment on the
    robbery conviction. The appellant submits that this sentence offends the jump
    principle, which requires that successive similar offences be met with
    incrementally more severe sentences, rather than jumping from a light sentence
    to a significantly harsher one.

[26]

The trial judge was fully alive to the jump
    principle. He expressly quoted from the directives of this court in
R. v.
    Borde

(2003),

63 O.R. (3d) 417 (C.A.) and cautioned himself against
    imposing a dramatically more severe sentence than that which had been imposed on
    the appellant for similar offences in the recent past. However, as the quoted
    passage from
Borde

states, the jump principle has little
    application where the severity of the crime shows a dramatic increase in
    violence and seriousness.

[27]

In this case, there was a significant increase
    in the violence and seriousness of the robbery compared to the circumstances of
    the appellants prior robbery. Whereas the prior robbery involved threatening,
    in this case, the appellant used a knife in the commission of the robbery; as a
    cab driver, the complainant was vulnerable; and the appellant violently
    attacked the complainant after the robbery.

[28]

For this and the other reasons of the sentencing
    judge, a significant increase in sentence was required for deterrence and
    denunciation. Consequently, the sentence does not offend the jump principle.

Did the sentencing judge err in failing to give
    appropriate weight to the appellants rehabilitation efforts?

[29]

The appellant contends that he demonstrated a
    commitment to rehabilitation prior to sentencing and that the sentencing judge did
    not give appropriate weight to those efforts because of his age, the fact he
    had been given credit for those efforts when sentenced for the prior robbery,
    and/or because his efforts have failed thus far.

[30]

We do not agree.

[31]

The sentencing judge acknowledged that the
    appellants rehabilitative efforts constituted a mitigating factor. He did not discount
    those efforts on the basis that the appellant was given credit for them when he
    was sentenced for the earlier robbery. Rather, the sentencing judge referred to
    the reasons of the sentencing judge from the earlier robbery to underscore his
    conclusion that the appellants efforts at rehabilitation had failed. Moreover,
    the trial judge did not refer to the appellants stage of life in order to
    discount the possibility of rehabilitation because of his age. Rather, the sentencing
    judge was reflecting on the appellants long history of offences and continued
    pattern of re-offending.

DISPOSITION

[32]

Accordingly, the conviction appeal is dismissed.
    Leave to appeal sentence is granted but the sentence appeal is also dismissed
    except to set aside the victim surcharge.

G.R.
    Strathy C.J.O.

E.E.
    Gillese J.A.

David
    Watt J.A.


