Parity is not considered in isolation

Christopher Uniat was 18 years old. He decided to do a home invasion with some friends. He carried a shotgun with him. Once in the home Uniat held the occupants at gun point. He threatened to shoot them – the gun was in fact not loaded. Uniat was arrested and charged with robbery and conspiracy to commit robbery. He pleaded guilty to both charges. The sentencing judge imposed a sentence of 7 years jail. Uniat appealed: 2015 ONCA 197.

On appeal Uniat argued that the sentencing judge erred by failing to properly apply the principle of parity and placing too little weight on rehabilitative prospects of Uniat. Both grounds were readily rejected.

First, the principle of parity was not offended; while Uniat received a sentence in excess of his co-accused, it was warranted and his circumstances and involvement justify the departure.

The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offences is resolved by the courts. The other principals were also youthful, but resolved their charges earlier on the basis of joint submissions. None had accumulated the impressive number of robbery convictions achieved by the appellant, or demonstrated such an unremitting unwillingness to abide by the terms of court orders or forms of release. The sentencing judge was well aware of the roles assigned to the others, their antecedents and the basis upon which their cases were resolved. The parity principle was not offended. [Emphasis added]; [@6].

Second, the sentencing judge did not lose sight of the objective of rehabilitation. Uniat’s troubling criminal past and failure under court orders undermined reliance on rehabilitation to justify a decrease in sentence.

Nor did the sentencing judge lose sight of the objective of rehabilitation. But sadly there is little positive revealed about those prospects. The appellant has proceeded with depressing regularity from one robbery to another, ignoring along the way his obligations under existing court orders. The pre-sentence report paints a bleak picture about the future. The appellant exhibits no remorse. Despite his youth, rehabilitation must occupy a secondary place in this sentencing analysis. The sentencing judge accorded it its due. [@8].

The sentence imposed by the sentencing judge, L’Oignon J, was fit and properly considered the relevant principles. The seven year sentence is significant for an 18 year old offender, but properly considered, it was warranted and just.


New & Notable: High End & Fit

Jeffrey Narvie went to an acquaintance’s home to sell him a small amount of marijuana. The deal didn’t go as planned for either the buyer, who was attacked and robbed, or the seller, who was subsequently arrested. After a trial Narvie was found to have held a knife to the victim’s throat, robbing him of his cell phone and $230.

The Crown argued that Narvie, an aboriginal person from the Mi’Kmaq band in New Brunswick should be sentenced to 3-5years in custody. Narvie submitted that 12 months would suffice. The trial judge imposed a sentence of 4 years, which “included three six-month concurrent sentences for the counts of mischief, breach of probation, and possession of stolen property, as well as nine months for trafficking in marijuana,” [@para 9]. Narvie appealed on the basis that the sentence was demonstrably unfit: 2014 ABCA 145.

In fashioning the sentence the trial judge noted:

  • The lengthy related criminal record
  • The unfavourable pre-sentence report
  • Longstanding substance abuse issues
  • A lack of remorse
  • The principles in Gladue, 1999 CanLII 679 (SCC)

On appeal Narvie argued that the sentencing judge overlooked a number of mitigating factors including:

  • A 10year gap in Narvie’s criminal record
  • The prior attempts to overcome addiction issues
  • Employment in the year prior to the offences
  • The unsophisticated nature of the crimes
  • The absence of injuries to the victim [@para 10]

The Crown conceded that the 9 month sentence for trafficking was overly harsh given the small amount involved and that the offender’s related drug record was minimal. The Court imposed a sentence of 60 days concurrent on the trafficking offence.

In dismissing the remainder of the sentence appeal the Court held that:

While the robbery sentence may have been at the high end, we cannot say it was demonstrably unfit. We are satisfied it fell into an appropriate range, given all the facts present here. The test is not whether a lower or higher sentence might have been imposed. It is whether, in this case, the sentence for robbery was demonstrably unfit. We are not convinced that it was. [@para 13]

Furthermore, although the sentencing “judge may not have mentioned every single factor, (…) all the matters he is said to have overlooked were, in fact, put before him. He carefully considered the principles of sentencing and made no errors of principle” [@para 12].


New & Notable: Commendable Efforts but not Worthy of Lesser Sentence

Shortly after midnight, Kristopher Clarke, 19 years old, walked into a convenience store wearing a skeleton mask and pulled out a starter’s pistol, which he pointed at the head of the victim. He demanded cash and cigarettes.  He threatened to shoot if his demands were not met. Clarke plead guilty and was sentenced by Moore J who accepted a joint submission of two years less a day.

The joint submission was premised and accepted on the basis of the following factors. First, Clarke was a youthful first offender, who pleaded guilty.

Second, Moore J described Clarke as having “an incredible amount of potential” given the family support and prospect for rehabilitation [@para 5].

Third, Clarke was released on bail pending disposition and had abided by all of the release conditions.

Fourth, at the time of the robbery Clarke was suffering from depression but had stopped taking his anti-depressants because he could no longer afford them. A detailed psychiatric report was filed.

On appeal, however, Clarke argued that in light of fresh evidence, which revealed that he had taken significant steps towards rehabilitation following disposition, the sentence should be reduced. The Ontario Court of appeal disagreed: 2014 ONCA 296.

Before declining to admit the fresh evidence, the Court of Appeal first set out the categories of proposed fresh evidence, which included:

  • Letters of support from people who have known Clarke for many years
  • Letters of support from Clarke’s employers from various subway restaurants where Clarke worked on a part-time basis.
  • Letters relating to Clarke’s education post sentencing, which included the completion of high school credits and enrolment in a college program.

Although the Court commended Clarke for his efforts in both education and employment ultimately they determined that the fresh evidence did not:

significantly alter the picture presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family.  Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge [para 19].

Moreover, in concluding that the sentence was fit the Court highlighted that:

given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence [para 20].

This approach is consistent with the comments of the Saskatchewan Court of Appeal in R v Stonechild, 1995 CanLII 3925 (CA), where the Court stressed that:

(…) crimes violence will be visited with a significant term of imprisonment. Robbery with violence is the type of crime from which the public is entitled to be protected and the sentence imposed must leave no doubt that such conduct cannot be tolerated.

Service stations and other places of business that remain open during the night (often with only one attendant) are particularly vulnerable. Taxi drivers are often in a similar position. Robbery is particularly serious because of its inherent danger to human life. Any escalation of violence toward a victim as well as resistance to the offender can easily result in death or serious bodily harm [paras 7-8].


New & Notable: There is not really an offence of armed robbery

Jerome Moore was acquitted after a judge alone trial in the Superior Court. The indictment specifically charged that he “did, while armed with a firearm, to wit: a handgun, rob Steve Howland, contrary to Section 344 of the Criminal Code.” In light of the limited opportunity of the witness to observe the accused, the trial judge was not satisfied beyond a reasonable doubt that Moore pointed the firearm or was even armed and on this basis acquitted him of the charge.


In R v Moore2012 ONCA 770, the Court of Appeal confirmed that the Criminal Code does not actually create an offence of armed robbery. Rather, s.343 creates an offence of robbery and describes the four ways that robbery may be committed. In order to engage the mandatory minimum provisions, the Crown is simply required to prove, as mater of sentence that the accused used a firearm in the commission of the robbery.

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