R. v. Hailemolokot (B.W.) et al., 2013 MBQB 285

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 27, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 285;(2013), 300 Man.R.(2d) 264 (QB)

R. v. Hailemolokot (B.W.) (2013), 300 Man.R.(2d) 264 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. DE.025

Her Majesty The Queen v. Biniam Worede Hailemolokot and Natnele Mesgna (accused)

(CR 11-01-31083; 2013 MBQB 285)

Indexed As: R. v. Hailemolokot (B.W.) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

November 27, 2013.

Summary:

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 281 Man.R.(2d) 128, convicted both Hailemolokot and Mesgna of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)). Hailemolokot was also convicted of carrying a concealed weapon without authorization. The accused challenged the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) of the Code on the basis that it violated ss. 7, 12 and 15 of the Charter.

The Manitoba Court of Queen's Bench found that s. 344(1)(a) of the Code did not violate s. 7, 12 or 15 of the Charter. The accused were therefore subject to the mandatory minimum sentence of four years on each count of robbery with a firearm. Those sentences were to be served concurrently. At a credit of 2:1 for time served, Hailemolokot was entitled to a total credit of 24 months while Mesgna's credit was 20 months. Therefore, Hailemolokot was to serve a further two years, and Mesgna was to serve a further 28 months. With respect to Hailemolokot's conviction for carrying a concealed weapon, the court imposed a sentence of six months, to be served concurrently to his sentences for robbery with a firearm. With respect to each accused, the court also imposed a DNA order, an order of forfeiture of all items seized by the police, a non-communication order, and a 10 year weapons prohibition.

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Sentencing (incl. mandatory minimum sentences) - Hailemolokot and Mesgna were both convicted of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)) - The accused challenged the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) of the Code on the basis that it violated s. 7 of the Charter - Defence counsel argued that s. 344(1)(a.1) was arbitrary and not in accord with the principles of fundamental justice because it allowed the Crown discretion to prove that the pellet guns used in the robbery were "firearms" - The Manitoba Court of Queen's Bench held that s. 344(1)(a.1) did not violate the accused's s. 7 Charter rights - See paragraphs 60 to 64.

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - Hailemolokot and Mesgna were both convicted of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)) - The accused challenged the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) of the Code on the basis that it violated s. 12 of the Charter - The Manitoba Court of Queen's Bench held that s. 344(1)(a.1) did not violate the accused's s. 12 Charter rights - The offences and the accused's participation in them were serious - However, the circumstances of the accused were mitigating: their young age, lack of criminal records, good behaviour since the offences, and compliance with bail conditions over a number of years - Pre-sentencing custody was also a factor in assessing the impact of the mandatory minimum sentences - Mesgna and Hailemolokot had spent 10 and 12 months, respectively, in pre-sentence custody and a credit of 2:1 for all time served was appropriate - The court stated that "Taking into account the circumstances of the offences and the offenders, I expect that, in the absence of s. 344(1)(a.1), I would have imposed sentences in the range of approximately two and a half years for each count of robbery with a firearm ... However, the standard under s. 12 is not so exacting as to require the punishment to be 'perfectly suited to accommodate the moral nuances of every crime and every offender' ... The question is whether the sentence prescribed by s. 344(1)(a.1) is so grossly disproportionate that it would outrage commonly accepted standards of decency; and I conclude that it would not. ...  In these circumstances, and taking into account the other factors relevant to an assessment of gross disproportionality, I conclude that a four-year sentence is not cruel and unusual punishment" - See paragraphs 8 to 59.

Civil Rights - Topic 5652

Equality and protection of the law - Particular cases - Minimum sentences - Hailemolokot and Mesgna were both convicted of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)) - The accused challenged the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) of the Code on the basis that it violated s. 15 of the Charter - The accused asserted a s. 15 violation on the basis that s. 344(1)(a.1) further contributed to the marginalization of and racism against Canadians of African descent - The Manitoba Court of Queen's Bench held that the accused had not established that s. 344(1)(a.1) violated their s. 15 Charter rights - No evidence was tendered by the accused to lay a factual foundation for their s. 15 challenge - They had not established that there was an over-representation and over-incarceration of black males charged with s. 344(1)(a.1) offences or that any such effect was caused by the law itself - See paragraphs 65 to 69.

Criminal Law - Topic 1441

Firearms - General - What constitutes a firearm - Hailemolokot and Mesgna were both convicted of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)) - The accused were part of a group who committed a robbery of two people with the use of two air pistols (also known as BB or pellet guns) - The accused challenged the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) of the Code on the basis that it violated s. 12 of the Charter - The Manitoba Court of Queen's Bench stated, inter alia, "Defence counsel argue that the use of unloaded pellet guns is not the kind of mischief the mandatory minimum sentence prescribed by s. 344(1)(a.1) was intended to address. Specifically, they contend that, although the pellet guns are firearms as defined by s. 2 [of the Code], they are not firearms under the Firearms Act, ... so that no license is required in order to carry such a weapon. The defence position is founded on s. 84(3)(d) of the Criminal Code ... However, no evidence was led as to whether the pellet guns in question were of sufficiently low velocity to meet the requirements of this section. Even if they were, the section makes it clear that while such guns will not require registration under the Firearms Act nor are they 'firearms' for some offences (such as certain weapons possession and trafficking offences), there is no exemption when they are used for criminal purposes as in s. 344(1)(a.1)" - See paragraphs 19 to 21.

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - [See Civil Rights - Topic 3151 , Civil Rights - Topic 3829 and Civil Rights - Topic 5652 ].

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See Criminal Law - Topic 1441 ].

Criminal Law - Topic 5855

Sentence - Robbery - Hailemolokot and Mesgna were both convicted of two counts of robbery with a firearm (Criminal Code, s. 344(1)(a.1)) - Hailemolokot was also convicted of carrying a concealed weapon without authorization - The accused were part of a group that committed a robbery of two people in August 2008 with the use of two air pistols (also known as BB or pellet guns) - In all, the circumstances of the offenders were mitigating: their young age, lack of criminal records, good behaviour since the offences, and compliance with bail conditions over a number of years - The Manitoba Court of Queen's Bench held that the accused were subject to the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) on each count of robbery with a firearm - Those sentences were to be served concurrently - With a credit of 2:1 for time served, Hailemolokot was entitled to a total credit of 24 months while Mesgna's credit was 20 months - Therefore, Hailemolokot was to serve a further two years, and Mesgna was to serve a further 28 months - With respect to Hailemolokot's conviction for carrying a concealed weapon, the court considered that this was a serious offence, involving concealment of the guns both before and after the robbery - The court imposed a sentence of six months, to be served concurrently to his sentences for robbery with a firearm - With respect to each accused, the court also imposed a DNA order, an order of forfeiture of all items seized by the police, a non-communication order, and a 10 year weapons prohibition - See paragraphs 70 to 77.

Criminal Law - Topic 5871

Sentence - Possession and use of sale of weapons or ammunition - [See Criminal Law - Topic 5855 ].

Cases Noticed:

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 40 O.R.(3d) 641 (C.A.), refd to. [para. 9].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 10].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 NR. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 10].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 12].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 12].

R. v. Adamo (M.P.) (2013), 296 Man.R.(2d) 245; 2013 MBQB 225, refd to. [para. 14].

R. v. McMillan (B.W.) (2013), 297 Man.R.(2d) 185; 2013 MBQB 229, refd to. [para. 14].

R. v. Lapierre (1998), 123 C.C.C.(3d) 332 (Que. C.A.), refd to. [para. 15].

R. v. Wust (L.W.) et al. (1998), 107 B.C.A.C. 130; 174 W.A.C. 130; 125 C.C.C.(3d) 43 (C.A.), revd. [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 15].

R. v. Irvine (C.W.) (2008), 225 Man.R.(2d) 281; 419 W.A.C. 281; 2008 MBCA 34, refd to. [para. 32].

R. v. Johnas et al. (1982), 41 A.R. 183; 2 C.C.C.(3d) 490; 1982 ABCA 331, refd to. [para. 34].

R. v. Danvers (Q.) (2005), 201 O.A.C. 138; 199 C.C.C.(3d) 490 (C.A.), refd to. [para. 34].

R. v. Ferrigon (V.J.), [2007] O.T.C. Uned. 876 (Sup. Ct.), refd to. [para. 34].

R. v. Brown (D.P.) (2009), 251 O.A.C. 264; 2009 ONCA 563, refd to. [para. 34].

R. v. Chin (Y.R.) (2009), 457 A.R. 233; 457 W.A.C. 233; 2009 ABCA 226, refd to. [para. 34].

R. v. Nur (H.), [2011] O.T.C. Uned. 4874; 275 C.C.C.(3d) 330; 2011 ONSC 4874, revd. (2013), 311 O.A.C. 244; 2013 ONCA 677, refd to. [para. 34].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 35].

R. v. Smickle (L.), [2012] O.T.C. Uned. 602; 110 O.R.(3d) 25; 2012 ONSC 602, revd. (2013), 311 O.A.C. 288; 2013 ONCA 678, refd to. [para. 35].

R. v. King (1990), 66 Man.R.(2d) 130 (C.A.), refd to. [para. 38].

R. v. Dorland (D.G.) (1995), 56 B.C.A.C. 224; 92 W.A.C. 224 (C.A.), refd to. [para. 38].

R. v. Meawasige, 2008 ONCJ 122, refd to. [para. 41].

R. v. Peterkin, [2003] O.J. No. 4403 (Sup. Ct.), refd to. [para. 42].

R. v. Muse, 2006 CarswellOnt 4543 (C.J.), refd to. [para. 42].

R. v. Young, [1998] O.J. No. 4709 (Gen. Div.), refd to. [para. 43].

R. v. Noor (S.), [2009] O.A.C. Uned. 739; 2009 ONCA 795, refd to. [para. 43].

R. v. Kouznetsov (A.) (2010), 298 B.C.A.C. 42; 505 W.A.C. 42; 2010 BCCA 585, refd to. [para. 44].

R. v. Hassan (A.), [2011] O.T.C. Uned. 5128; 2011 ONSC 5128, refd to. [para. 44].

R. v. Teskey (J.E.), [2000] B.C.T.C. 275; 2000 BCSC 627, refd to. [para. 45].

R. v. Barre (A.B.), [2011] O.T.C. Uned. 4570 (Sup. Ct.), refd to. [para. 45].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 MBCA 64, refd to. [para. 48].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148; 2005 MBCA 149, refd to. [para. 48].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 48].

R. v. Martin (B.) (2005), 203 Man.R.(2d) 214; 2005 MBQB 185, refd to. [para. 51].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 54].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 66].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 67].

R. v. Arbuthnot (S.M.) (2009), 245 Man.R.(2d) 244; 466 W.A.C. 244; 2009 MBCA 106, refd to. [para. 71].

R. v. Taylor (M.A.) (2010), 262 Man.R.(2d) 43; 507 W.A.C. 43; 2010 MBCA 103, refd to. [para. 71].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 71].

R. v. E.T.P. (2002), 163 Man.R.(2d) 113; 269 W.A.C. 113; 2002 MBCA 194, refd to. [para. 73].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 60]; sect. 12 [para. 8]; sect. 15(1) [para. 65].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 19]; sect. 84(3)(d) [para. 20]; sect. 344(1)(a.1) [para. 1].

Authors and Works Noticed:

Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), § 23.369 [para. 53].

Sheehy, Elizabeth, The Discriminatory Effects of Bill C-15's Mandatory Minimum Sentences (2010), 70 C.R.(6th) 302, generally [para. 66].

Counsel:

Michael G. Himmelman and Deborah L. Carlson, for the Crown;

T. Adam Masiowski, for the accused, Biniam Worede Hailemolokot;

Leonard J. Tailleur, for the accused, Natnele Mesgna.

This matter was heard before Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 27, 2013.