IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Louie, |
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2019 BCSC 368 |
Date: 20190221
Docket: 102444-2
Registry: Kamloops
Regina
v.
Lyle Peter Louie
Before: The Honourable Mr. Justice Marchand
Corrected
Judgment: The oral reason was corrected at para. 49
on March 20, 2019
Oral Reasons for Sentence
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Counsel for the Crown: |
L. Drake |
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Counsel for the Accused: |
D.G. Campbell |
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Place and Date of Trial/Hearing: |
Kamloops, B.C. October 9, 2018 and |
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Place and Date of Judgment: |
Kamloops, B.C. February 21, 2019 |
[1] Lyle Louie has pled guilty to one count of robbery contrary to s. 334(1)(b) of the Criminal Code [Code] and one count of using an imitation firearm in the commission of an indictable offence contrary to s. 85(2) of the Code. These are my reasons for sentence.
[2] On July 14, 2014, just before 8:30 p.m., Mr. Louie brought a bottle of absinthe to the till at BigDaddy Liquors store in the Valleyview neighbourhood of Kamloops. He was wearing a black shirt, ball cap, and brightly coloured wig. After fumbling around, he pulled out what looked like a small handgun.
[3] Mr. Louie pointed the gun in close proximity at the two clerks behind the till. He forced them to the ground, then went behind the counter. He had one of the clerks get up to give him the money that was in the cash register, which totalled between $300 and $400. At some point, he put the gun on the counter to jam packages of cigarettes into his pockets.
[4] Eventually Mr. Louie had the other clerk stand up. He told the clerks he wanted to exit out the back door, but the clerks told him that was not possible because the back door was locked and only the manager had a key. Mr. Louie insisted that the clerks accompany him out the front door. He asked them to buy him a coffee at the Tim Hortons next door. The clerks declined pointing out that he had just taken $300 to $400 from the store. Mr. Louie then took off while the clerks went back into the store and hit their panic button.
[5] The police arrived at about 9:00 p.m. The police viewed surveillance videos from the store. They noted the perpetrator had put his hands on the door. The Identification Section lifted a fingerprint from the door which was matched to Mr. Louie. The police searched the area. They found the black shirt worn by the perpetrator. The shirt had blood on it. DNA from the blood on the shirt was also matched to Mr. Louie. The police located the hat, wig, and an imitation handgun in a garbage can at the Tim Hortons.
[6] I accept that Mr. Louie was intoxicated at the time of his offences, that the disguise, such as it was, was not very good, and that the video showed quite clearly that Mr. Louie was the perpetrator.
[7] The clerks did not file victim impact statements, but I accept that they believed the imitation handgun was real. While I am certain both clerks were frightened, I accept that Mr. Louie was a "bumbling" perpetrator and note that the clerks were able to deal with Mr. Louie quite effectively. In particular, they told him that they could not let him out the back door and they declined to buy him a coffee.
[8] In considering Mr. Louie's circumstances, I have had the benefit of a detailed and thoughtfully prepared Gladue report.
[9] Mr. Louie was 31 at the time of his offending and is now 34. He is the middle of five children. Mr. Louie's mother is from the Ulkatcho First Nation (“UFN”) which has an office at Anahim Lake, 320 kilometres west of Williams Lake. Mr. Louie is a member of the UFN. Mr. Louie's father is from the Nadleh Whut'en First Nation (“NWFN”) which has an office in Fraser Lake, 137 kilometres west of Prince George.
[10] The UFN and the NWFN communities have been seriously adversely affected by the operation of Indian Residential Schools. Mr. Louie lived in both communities as a child where he witnessed constant partying, violence, and substance abuse. At various times, he was cared for by different family members, many of whom lacked basic parenting skills.
[11] Mr. Louie had to leave home to attend high school in Williams Lake where he completed grade 11 and part of grade 12. He subsequently tried to complete high school at a place called the Grow Centre, but left when he learned his girlfriend was pregnant. Mr. Louie and his now former girlfriend have a son who is 15 years old. Unfortunately, Mr. Louie's former girlfriend has struggled with substance abuse. As a result, Mr. Louie has been primarily responsible for raising his son.
[12] Over the years, Mr. Louie has been employed by West Chilcotin Forest Products as a lumber stacker and planer, by Denisiqi Services Society, in video production, by the UFN, in cant construction, and by New Gold Blackwater as a core-cutter. He has taken some training in the mining industry.
[13] Since his arrest, Mr. Louie has been living in Anahim Lake where, in addition to raising his son, he also assists his physically disabled mother. He does the majority of the housekeeping and outdoor duties for his parents, including splitting wood, shovelling, cooking, and laundry.
[14] Over the years, Mr. Louie has struggled with addictions to alcohol and crack cocaine. To his credit, Mr. Louie has been receiving counselling in his community, attended the Renner House withdrawal program in Williams Lake between September 27 to 30 and October 25 to 27, 2018, and completed the Ormond Lake Cultural Healing Centre addiction program in August 2018.
[15] Various members of Mr. Louie's family have provided letters of support for Mr. Louie. As a whole, these letters indicate that Mr. Louie's disrupted, insecure, impoverished, and traumatic childhood led Mr. Louie into his own struggles with substance abuse. Despite the overt racism Mr. Louie has personally experienced and the hurdles posed by the circumstances within his family and communities, Mr. Louie's family members describe him as a good-natured person with a kind heart and a good sense of humour who is devoted to his family. The letters confirm that Mr. Louie is remorseful for his actions and is choosing to follow a path of sobriety, just as his parents have been doing over the past ten years or so.
[16] During submissions, the Crown mentioned that Mr. Louie had a dated, very minor, and unrelated criminal record. The Crown did not introduce Mr. Louie's criminal record as an exhibit and did not rely on Mr. Louie's criminal record to support its submission on sentence.
[17] Against this backdrop, the Crown seeks a custodial disposition of two years in relation to the robbery count, plus one year consecutive in relation to the use of an imitation firearm count. The Crown also seeks a primary DNA order and a 20-year weapons ban. Mr. Louie seeks a custodial disposition of 18 to 24 months together with a period of probation. Mr. Louie does not oppose the ancillary orders sought by the Crown.
[18] In R. v. Harry, 2018 BCSC 2069, I summarized what I consider to be the applicable sentencing principles in a case such as this at paras. 20-24 as follows:
[20] Sections 718 to 718.2 of the Criminal Code, R.S.C., 1985, c. C-46 [Code] set out the purpose and principles of sentencing. These sections provide, in part, as follows:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . .
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
...
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[21] Section 718.2(e) was introduced in 1996. Cases such as R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, make clear that it is a remedial provision that was and is intended to deal with the crisis of over-representation of indigenous offenders in the Canadian criminal justice system. Sadly, the statistics are worse today than they were in 1996.
[22] The crisis described by the Supreme Court of Canada has been driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and bias experienced by indigenous Canadians as a result of Canada's colonial history and destructive assimilationist policies such as the operation of Indian Residential Schools.
[23] While these are broader societal issues, the Court, in Gladue and Ipeelee, has recognized that sentencing indigenous offenders has a role to play in addressing their over-representation in the criminal justice system. Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they "are victims of systemic and direct discrimination". To help address the crisis, Gladue and Ipeelee changed the way indigenous offenders are sentenced, though not necessarily the result. In sentencing an indigenous offender, a sentencing judge must consider two factors:
1. The unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances.
[24] Other important principles from Gladue and Ipeelee include the following:
* The court must take a holistic approach to imposing a fit sentence. A fit sentence is one that is proportional and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender;
* The unique systemic or background factors that may have played a part in bringing the particular offender before the court speaks to the moral blameworthiness of the offender;
* A causal connection between the systemic and background factors need not be established but a link may be important or helpful in finding a fit sentence; and
* Restorative sentences may be more appropriate for indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Colloquially, s. 718.2(e) is not a "get out of jail free" card.
[19] As I stated in Harry at para. 25:
[25] Sentencing is a highly-individualized process. The type of available sentence may be constrained by statutory provisions and the range of appropriate sentence is generally established through a consideration of sentences imposed for similarly situated offenders who have committed similar offences in similar circumstances.
[20] In this case, s. 334(1)(b) of the Code provides that the robbery count is not subject to a mandatory minimum sentence, but the maximum sentence is life in prison. As the maximum sentence is life, under s. 742.1(c) of the Code, a conditional sentence order is not an available sentencing option. In relation to the use of an imitation firearm count, s. 85(3) of the Code provides for a mandatory minimum sentence of one-year imprisonment. Section 85(4) provides that this mandatory minimum sentence must be imposed consecutively to any punishment imposed on a person for another offence arising out of the same event.
[21] In R. v. Brogan, 1999 BCCA 278, our Court of Appeal upheld the sentencing judge's imposition of a global sentence of eight years for a variety of offences, including concurrent eight-year sentences on two counts of robbery. While masked and armed with a pellet gun, Mr. Brogan had robbed two gas stations on the same night. In one of the two robberies, Mr. Brogan pointed the pellet gun at the head of a customer, said he would kill her, and began a countdown to do so. Though there are some similarities between the Brogan case and Mr. Louie's case, there are also a number of distinguishing features. As a result, the Crown does not rely on Brogan as a direct comparator. Rather, the Crown relies on Brogan to demonstrate how seriously the courts take offences involving armed robbery.
[22] The Crown also relies on Brogan for the following statement made by the Court at para. 10 regarding the range of sentence for cases where robbery with violence has been committed by young men:
[10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan's situation exactly, none could.
[23] In R. v. Rousseau, 2016 BCSC 1593, Skolrood J. imposed concurrent two-year terms of imprisonment plus two years of probation on an indigenous offender convicted of robberies of a convenience store and a gas station on consecutive days. Mr. Rousseau had passed notes demanding cash, cigarettes, and lottery tickets to store clerks. Mr. Rousseau also covered his face with a mask and threatened the store clerks with a syringe. Mr. Rousseau was 26 years old at the time of the offences. His criminal record included drug offences, mischief, theft, and fraud. Mr. Rousseau was largely raised in foster care and said he had been sexually assaulted in one of the homes. Mr. Rousseau had not graduated from high school. He had a learning disability and suffered from attention deficit hyperactivity disorder, anxiety, and insomnia. He had not worked consistently, struggled with substances, and was collecting social assistance. Skolrood J. noted Mr. Rousseau's level of pre-meditation was not particularly high. While deterrence and denunciation were important sentencing objectives, rehabilitation was also a consideration. The Crown submits that the circumstances in Rousseau provide a reasonable comparator to the circumstances before me, although the Crown notes that if I sentence Mr. Louie to two years for the robbery, the additional year for Mr. Louie's use of a firearm means that he would not be eligible for probation.
[24] I accept that the range of sentence for robbery with violence committed by young men is two to nine years. Of course, "sentencing ranges are primarily guidelines, and not hard and fast rules”: R. v. Lacasse, 2015 SCC 64 at para. 60. In exceptional circumstances, a sentence outside the range may be appropriate: R. v. Voong, 2015 BCCA 285 at para. 59.
[25] In this case, the aggravating factors include:
1. Mr. Louie exposed the clerks to a prolonged threat of physical harm which included forcing the clerks to leave the store with him;
2. he used an imitation firearm which he meant to be taken as and which was taken to be real;
3. he did not just brandish the imitation firearm, but he pointed it at both clerks;
4. he used a disguise;
5. there was some level of planning; and
6. he traumatized the store clerks.
[26] All of that said, Mr. Louie's crime was not particularly sophisticated. He did not execute the robbery with skill. In fact, he appeared to be bumbling. Further, while the clerks took the threat posed by Mr. Louie seriously, they were able to refuse to let him out the back door and to buy him coffee. After the offences, the clerks were able to send Mr. Louie on his way and hit the panic button.
[27] In terms of mitigating factors, Mr. Louie entered a guilty plea and has expressed remorse for his crime. He has essentially no criminal record, and his crime appears to have been out of character. He deserves much credit for taking it upon himself to address his substance abuse issues. He is lucky to have strong support from his family and that support bodes well for his future. While not technically a mitigating factor, I have to note that Mr. Louie's performance on bail has been excellent.
[28] Based on everything I have read and heard, I consider Mr. Louie to be a good person who made a terrible mistake. I consider him to have good prospects to support and contribute to his family and community in the future.
[29] I will consider Mr. Louie's so-called Gladue factors in my assessment of his moral blameworthiness.
[30] The case law establishes that denunciation and general deterrence must be primary sentencing principles in a case such as this. A fit sentence must send a strong message that the community has no tolerance for crimes of violence which terrorize innocent and vulnerable people such as liquor store clerks. At the same time, Mr. Louie's personal circumstances and successes, together with the needs of his family, call for a sentence that provides for restoration and rehabilitation. Given Mr. Louie's otherwise crime-free life, I do not consider individual deterrence to be a concern. Further, in my view, public safety will be best served by ensuring that Mr. Louie can stay on his current sober path.
[31] In determining a fit sentence, I must take into account that Mr. Louie has committed very serious crimes. He used an imitation firearm and disguise to terrorize and traumatize two innocent and vulnerable store clerks for a few hundred dollars and some cigarettes. One of his crimes, the robbery, carries a maximum sentence of life imprisonment and typically results in a sentence of between two and nine years' imprisonment. The other, the use of a firearm during the commission of a crime, carries a mandatory minimum sentence of one-year imprisonment that must be imposed consecutively.
[32] On the other hand, in determining a fit sentence, I must recognize that Mr. Louie has a highly reduced level of moral blameworthiness. Canada's colonial history and assimilationist policies have had a direct and adverse effect on Mr. Louie's communities, his family, and on Mr. Louie himself. Mr. Louie had a childhood no person should experience. Displacement, insecurity, hunger, violence, and substance abuse were normalized. In my view, Mr. Louie's traumatic childhood experiences are directly linked to the systemic and background factors sought to be addressed by s. 718.2(e) of the Code and cases like Gladue and Ipeelee. Like many indigenous offenders with a similar background, these experiences have led to Mr. Louie's own struggles with substance abuse and his offences.
[33] While the Crown has taken a balanced and reasonable position on sentence that is well supported by the authorities, I will be imposing a sentence at the top end of the range proposed by the defence, namely a total of two years' imprisonment plus 18 months of probation. I recognize that this sentence is below the range established in Brogan, but I consider Mr. Louie's case to be exceptional. Despite his difficult personal circumstances, Mr. Louie has lived a mostly crime-free life. Given the success of his efforts to address his substance abuse issues, the level of support he has from sober family members, and the important role he has within his family, more harm than good would result from a lengthier term of imprisonment.
[34] In my view, the federal jail term I am imposing will address denunciation and general deterrence. The recommendations I will make regarding programming within Correctional Services Canada, plus the terms of my probation order, will address public safety concerns by supporting Mr. Louie's efforts to rehabilitate himself.
[35] Mr. Louie, could you please stand.
[36] On Count 1, robbery, the term of imprisonment I would have imposed before granting you credit for the time you have already served is one year and 47 days. You have already been in custody for 31 days. Pursuant to s. 719(3.3) of the Code, I give you credit for this time at a rate of 1.5 to one. The credit I am granting you is, therefore, 47 days. Accordingly, the sentence I am imposing on Count 1 is one year of imprisonment.
[37] On Count 2, the use of a firearm in the commission of an indictable offence, I sentence you to the mandatory minimum sentence of one-year imprisonment which must be served consecutive to the sentence for Count 1.
[38] Your total term of imprisonment is, therefore, two years.
[39] While incarcerated, I recommend that you have access to culturally appropriate substance abuse counselling and that you be considered for the earliest possible placement in an Aboriginal healing lodge. I also recommend that you receive support to complete your GED and any suitable vocational training.
[40] In addition, I am imposing a term of probation on both counts.
[41] Mr. Louie, you must comply with the terms of a probation order for a term of 18 months. The conditions of the order are:
· You must keep the peace and be of good behaviour;
· You must appear before the court when required to do so by the court;
· You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
· You must have no contact or communication directly or indirectly with Akash Arora and Adeep Bhandwaj;
· You must not go to any residence, school, or workplace of Akash Arora and Adeep Bhandwaj;
· You must not go to or be within 20 metres of the BigDaddy Liquors Store, 1829 TransCanada Highway, Kamloops, British Columbia, except while on a highway in a moving motor vehicle on your way to some other place;
· You must report in person to a probation officer at Williams Lake within one week after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by the probation officer;
· When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer; and
· You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to alcohol or drug abuse.
[42] Count 1 on the Indictment is a primary designated offence. Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples.
[43] Under s. 109 of the Code, I must make a mandatory weapons prohibition. In the circumstances of this case and, in particular, your lack of criminal sophistication, otherwise crime-free life, and progress towards rehabilitation, I do not consider it necessary to impose anything beyond the mandatory minimum prohibition for a first offence to which s. 109 applies. Accordingly, you are prohibited from possessing: (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years; and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
[44] Mr. Louie, I think it would be helpful for Corrections Services Canada and your probation officer to have access to the Gladue report that was prepared by Ms. Price and I want to ask you whether you would consent to its release to both Corrections Services Canada and your probation officer?
[45] THE ACCUSED: Yes.
[46] THE COURT: All right, thank you. With your consent, I direct that a copy of the Gladue report filed with the court on December 20, 2018, be provided to the Corrections Services of Canada and eventually to your probation officer.
[47] I thank counsel for their able assistance and thoughtful submissions.
[48] I thank Mr. Louie's family for being here and for supporting Mr. Louie in his rehabilitation. I know that you will miss him while he is away, but I am confident that he will make good use of his time. I expect him to consolidate his healing, complete his GED, and gain important skills so that he can be an even better member of your family and community when he is released.
[49] Mr. Louie, I congratulate you on your successes to date and wish you the very best and I can add that I do not expect to see you back in court in the future.
[50] Thank you, counsel.
[51] MR. CAMPBELL: Thank you.
[52] MS. DRAKE: And Crown directs a stay of proceedings on Count 3 on the indictment.
“L.S. Marchand J.”
MARCHAND J.