Confusion reigns on who is eligible

Just over a year ago, Shawn Michael Roy Lebar walked into a Thunder Bay liquor store and tapped the clerk on the shoulder. “This is a robbery,” he told her, brandishing a knife.Lebar, 50, left the store with $955 while the clerk escaped unharmed. The robbery itself was hardly a professional job. Lebar did nothing to hide from the store’s cameras, and when police arrested him shortly after, he immediately confessed.

“I want to apologize to the girl I put the knife to,” officers reported Lebar as telling them.
“Don’t you want to know why I did it?” he later asked them. “Well, I lost my job at the mill, then I got cut off pogie, and I didn’t know what else to do.”

In January, Lebar pleaded guilty to the crime, a scenario that left the judge with a difficult decision: should Lebar, with just one nine-year-old conviction for driving over the legal limit, go to jail, or would a conditional sentence order allowing him to serve his time at home be appropriate?

The answer would seem to be clear given 2007 Criminal Code amendments meant to get tough on crime by nixing conditional sentences for violent offences.

The changes meant people convicted of a so-called “serious personal injury offence” could no longer do their time in what was billed as the comfort of their own homes. But as cases are now making their way through the courts, judges and lawyers are asking themselves what exactly that means.

The law says such crimes include indictable offences involving the use or attempted use of violence - or conduct endangering or likely to endanger the life or safety of another person - and for which the sentence can be 10 years or more.

For the Crown, then, the answer to the judge’s dilemma was straightforward, according to Lebar’s sentencing judgment. As a result of the changes, all robberies are now serious personal injury offences, Superior Court Justice Bonnie Warkentin wrote in her description of the Crown’s position in R v. Lebar.

For his part, defence lawyer Neil McCartney argued that rather than an actual or attempted use of violence, Lebar’s actions constituted an implied threat to cause harm should the victim not hand over the cash.

“There’s a distinction to be made between violence and the threat of violence,” McCartney, a partner at Atwood Labine Arnone McCartney LLP in Thunder Bay, tells Law Times.

In the end, Warkentin sided both with and against McCartney. On the question of violence, for example, she ruled McCartney was wrong. “I find it difficult to accept that the offence committed by Mr. Lebar did not involve violence as submitted by the defence,” she wrote. “The very nature of using a knife as a threat to induce a desired result, whether implied or real, is an act of violence.”

Still, referring to an Ontario Court of Appeal judgment in R. v. Nikolovski, Warkentin said the ruling in that case - which also dealt with the definition of a serious personal injury offence - upheld judges’ discretion in assessing the facts.

“Mr. Lebar did not utter verbal threats of violence; he simply displayed the knife when he conducted the robbery,” she wrote. “Mr. Lebar did not attempt to hide his identity, and no one was assaulted or injured during the robbery. The robbery was Mr. Lebar’s only criminal offence aside from an impaired driving conviction some seven years prior to this offence.”

In doing so, Warkentin ruled a conditional sentence was appropriate and therefore ordered him to a term of house arrest of two years less a day. For McCartney, the decision provides some guidance
on whether judges can take the degree of violence into account when faced with cases like Lebar’s. “There has to be an objectively serious level of violence before that definition will be engaged,” he says.

The Crown, however, disagrees, says McCartney, noting prosecutors are challenging Warkentin’s ruling before the Ontario Court of Appeal. The question of what constitutes a serious personal injury offence, he adds, is one that the courts are likely to be increasingly grappling with.

The new rules on conditional sentences, of course, were a key aspect of the federal government’s bid to get tough on crime by making convicts pay a more serious price for their offences.

The federal Conservatives have been pushing that agenda since they took power in 2006, some of which remains unfinished and awaiting consideration by the House of Commons. The bills currently before Parliament include:

•    Bill C-14, which targets organized crime by, for example, automatically deeming murders connected to organized crime to be first degree. It would also create a new offence aimed at drive-by shootings for which a four-year minimum sentence would apply.

•    Bill C-15, amending the Controlled Drugs and Substances Act to enact mandatory minimum sentences for drug crimes. It would set a minimum of two years in jail for running a marijuana grow-op as well as establish new sentencing floors for dealing drugs such as cocaine and pot.

•    Bill C-25, the government’s bid to follow through on its promises to restrict the use of two-for-one credit for time spent in remand prior to sentencing.

For McCartney, a case like Lebar’s is a good example of why defence lawyers are concerned about the extent to which such laws, including the restrictions on conditional sentences, take away judges’ ability to evaluate situations based on their facts. “I do worry about that,” he says. “I think lawyers are always worried when discretion is taken away from judges, especially when it comes to sentencing.”

McCartney adds he’s even more concerned about people like Lebar, who under previous rules likely would have had an easier time getting house arrest. “It is particularly worrying for them because you have people who are not posing any further risk to society and who have a long track record of contributing to society.

For that type of offender, it’s now going to be said that there’s nothing we can do other than put you in prison.”
For Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, many of the changes are unnecessary and will likely complicate the justice system.

With the organized crime provisions, for example, Crown prosecutors will now have to prove a killing was done for the benefit of a gang before proceeding with a first-degree murder case, Trudell argues. Such killings almost invariably fit the first-degree definition of planned and deliberate murders anyway, meaning the organized-crime aspects simply create a new step in the proceedings, he says.

“It just adds a layer of complexity that’s not necessary and probably won’t be used. It’s optics. What difference does it make?”

Similarly, Trudell rejects the government’s bid to ensure “truth in sentencing” by ending judges’ right to grant convicted people double credit for the time they spend in remand on bail.

Federal officials argue the move will increase transparency in the justice system by ensuring prisoners’ stay in jail matches their sentence. As well, they say it will end instances where accused people in remand delay dealing with their cases in court so they can rack up double credit and therefore lessen their time left to serve.

Trudell, though, insists such examples aren’t an accurate reflection of how the courts deal with people. “I believe that it is anecdotal because if you visit some of the hellholes that are detention centres, it is ridiculous to suggest they’re doing that.”

Trudell adds that judges already have the right to deny double credit in such cases. “It’s not automatic. They don’t grant it without looking at the circumstances.”

Of course, cases like Lebar’s show that even when the government does get tough, the answers still aren’t necessarily straightforward. “I don’t think we have a serious engagement of the issue by the Court of Appeal,” McCartney says.

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