R. v. Link (B.A.), (2012) 276 Man.R.(2d) 157 (PC)

• Judge: Smith, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 23, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 276 Man.R.(2d) 157 (PC);2012 MBPC 25

R. v. Link (B.A.) (2012), 276 Man.R.(2d) 157 (PC)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MR.029

Her Majesty The Queen v. Bryna Alice Link (accused)

(2012 MBPC 25)

Indexed As: R. v. Link (B.A.)

Manitoba Provincial Court

Smith, P.C.J.

February 23, 2012.

Summary:

Link was with four others, including Foui, who robbed a convenience store. Unknown to Link, Foui had a replica handgun. Link stood near the door. Foui waved the gun at the cashier. Link provided Foui with a bag for the stolen goods (cigarettes and food). Three days later, Link stole clothing and food from a grocery store. Link pled guilty to robbery, theft and three breaches of a recognizance. She was 18, of aboriginal background and had no prior record.

The Manitoba Provincial Court sentenced Link to eight months' incarceration to be served in the community under strict conditions for the robbery offence. For the three breaches and the theft, the court suspended the passing of sentence on each and placed Link on a supervised probation order for 18 months concurrent to the robbery sentence. The robbery sentence was to be followed by a two year period of probation.

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - Link was with four others, including Foui, who robbed a convenience store - Unknown to Link, Foui had a replica handgun - Link stood near the door - Foui waved the gun at the cashier - Link provided Foui with a bag for the stolen goods (cigarettes and food) - Three days later, Link stole clothing and food from a grocery store - Link pled guilty to robbery, theft and three breaches of a recognizance - She was 18, of aboriginal background and had no prior record - The defence sought a suspended sentence for the robbery charge - The Manitoba Provincial Court held that this was not an appropriate case for a suspended sentence - First, the robbery was of a convenience store, a prevalent type of offence - Although Link's moral blameworthiness was significantly less than Foui's, she did participate - Moreover, a gun was used - Finally, after the robbery, Link continued to involve herself in criminal offences - The court could not ignore her post-robbery conduct in considering whether Link merited the leniency of a suspended sentence for the robbery - See paragraphs 84 to 97.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Link was with four others, including Foui, who robbed a convenience store - Unknown to Link, Foui had a replica handgun - Link stood near the door - Foui waved the gun at the cashier - Link provided Foui with a bag for the stolen goods (cigarettes and food) - Three days later, Link stole clothing and food from a grocery store - Link pled guilty to robbery, theft and three breaches of a recognizance - She was 18, of aboriginal background and had no prior record - The defence sought a conditional sentence - At issue was whether the robbery was a "serious personal injury offence" (SPIO) within the meaning of s. 752 of the Criminal Code, such that a conditional sentence order was not available - The Manitoba Provincial Court found that the robbery was not an SPIO in relation to Link, even if it could be characterized as such in relation to Foui - Foui's use of the gun did not amount to the "use or attempted use of violence" as that term was used in the definition of an SPIO - At most it was an "implied threat of violence" - A threat of violence was not the same as the use or attempted use of violence - There had to be evidence that "some kind of physical force was actually used" or attempted - If Foui had not committed an SPIO, Link, as a party to the offence, was eligible for a conditional sentence, if she otherwise qualified - Even if Foui had committed an SPIO, given that Link knew nothing about the gun, did nothing to support its use and had no meaningful opportunity to distance herself from its use, her offence could not be characterized as an SPIO - Thus, she was eligible for a conditional sentence - See paragraphs 98 to 122.

Criminal Law - Topic 5801.2

Sentencing - General - Restraint in imposing incarceration - [See first Criminal Law - Topic 5855 ].

Criminal Law - Topic 5824

Sentencing - Sentencing procedure and rights of the accused - Right of accused to be sentenced individually - [See first Criminal Law - Topic 5855 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See both Criminal Law - Topic 5855 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See both Criminal Law - Topic 5855 ].

Criminal Law - Topic 5842.1

Sentencing - Considerations on imposing sentence - Post-conviction, post-charge or post- discharge conduct - [See Criminal Law - Topic 5704 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See second Criminal Law - Topic 5855 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See both Criminal Law - Topic 5855 ].

Criminal Law - Topic 5854

Sentence - Theft - [See second Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - Link was with four others, including Foui, who robbed a convenience store - Unknown to Link, Foui had a replica handgun - Link stood near the door - Foui waved the gun at the cashier - Link provided Foui with a bag for the stolen goods (cigarettes and food) - Three days later, Link stole clothing and food from a grocery store - Link pled guilty to robbery, theft and three breaches of a recognizance - She was 18, of aboriginal background and had no prior record - The Crown sought a penitentiary sentence (two years' imprisonment or more) on the robbery charge - The Manitoba Provincial Court held that a penitentiary sentence would be harsh and unfit - Such a sentence would be disproportionate to the seriousness of the offence, Link's role in it and the degree of her responsibility for the most serious aspects of the offence - Further, a penitentiary sentence would fail to take adequate account of the mitigating circumstances here, including Link's status as a youthful first offender and the very significant and successful rehabilitative efforts she had undertaken - A penitentiary sentence could only be justified by focussing solely on the seriousness of the offence in the abstract and then considering only general denunciation and deterrence to the virtual exclusion of all other sentencing considerations, such as rehabilitation and the principle of restraint - That would not amount to an individualized consideration of a just sentence - Nor would such a sentence best contribute to the safety and protection of the public - See paragraphs 57 to 83.

Criminal Law - Topic 5855

Sentence - Robbery - Link was with four others, including Foui, who robbed a convenience store - Unknown to Link, Foui had a replica handgun - Link stood near the door - Foui waved the gun at the cashier - Link provided Foui with a bag for the stolen goods (cigarettes and food) - Three days later, Link stole clothing and food from a grocery store - Link pled guilty to robbery, theft and three breaches of a recognizance - She was 18, of aboriginal background and had no prior record - The Manitoba Provincial Court sentenced Link to eight months' incarceration to be served in the community under strict conditions for the robbery offence - Link had made significant steps on the road toward rehabilitation - She was not a threat to the community - Where a young, first offender was to be sentenced, rehabilitation played a significant part in the sentencing analysis - Further, under s. 718.2(e) of the Criminal Code, the court was to consider all available sanctions, other than imprisonment, that were reasonable with particular attention to the circumstances of aboriginal offenders, such as Link - A jail sentence of three to six months would have been appropriate - The conditional sentence order was appropriately lengthier than a sentence that would have been served in an institution - For the three breaches and the theft, the court suspended the passing of sentence on each and placed Link on a supervised probation order for 18 months concurrent to the robbery sentence - The robbery sentence was to be followed by a two year period of probation - See paragraphs 123 to 148.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See second Criminal Law - Topic 5855 ].

Words and Phrases

Serious personal injury offence - The Manitoba Provincial Court considered the interpretation and application of the phrase "serious personal injury offence" as defined in s. 752(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 98 to 122.

Cases Noticed:

R. v. N.A.S. (2007), 220 Man.R.(2d) 43; 407 W.A.C. 43; 2007 MBCA 97, refd to. [para. 58].

R. v. Simon - see R. v. N.A.S.

R. v. Johnas et al. (1982), 41 A.R. 183; 2 C.C.C.(3d) 490; 32 C.R.(3d) 1 (C.A.), refd to. [para. 61].

R. v. Bruyere (J.D.) (1999), 134 Man.R.(2d) 119; 193 W.A.C. 119 (C.A.), refd to. [para. 62].

R. v. Clare (A.) (2000), 145 Man.R.(2d) 142; 218 W.A.C. 142 (C.A.), refd to. [para. 62].

R. v. Sorenson (R.) (2006), 205 Man.R.(2d) 93; 375 W.A.C. 93; 2006 MBCA 38, refd to. [para. 64].

R. v. Huth, 1989 CarswellMan 433 (C.A.), refd to. [para. 65].

R. v. Howse (S.V.) (2006), 384 A.R. 176; 367 W.A.C. 176; 2006 ABCA 163, refd to. [para. 72].

R. v. Lee (D.J.) (2004), 346 A.R. 308; 320 W.A.C. 308; 2004 ABCA 70, refd to. [para. 73].

R. v. Hawkins (R.K.) (2008), 331 N.B.R.(2d) 129; 849 A.P.R. 129; 2008 NBCA 40, refd to. [para. 75].

R. v. Conlon (S.K.) (2011), 517 A.R. 365; 2011 ABPC 259, refd to. [para. 76].

R. v. Kunzig (M.F.S.), [2011] Man.R.(2d) Uned. 97; 2011 MBPC 81, refd to. [para. 90].

R. v. Carver (1980), 4 Man.R.(2d) 107 (C.A.), refd to. [para. 92].

R. v. Ramsay (1985), 36 Man.R.(2d) 184 (C.A.), refd to. [para. 92].

R. v. Bartlett, [1961] M.J. No. 2 (C.A.), refd to. [para. 92].

R. v. Kotelko (B.E.J.) (2011), 272 Man.R.(2d) 87; 2011 MBPC 76, appld. [para. 99].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 107].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 ONCA 220, refd to. [para. 111].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 2005 SKCA 12, refd to. [para. 111].

R. v. Jolicoeur (R.) (2011), 265 Man.R.(2d) 225; 2011 MBQB 129, refd to. [para. 111].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 113].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 128].

R. v. McCormick, [1979] 4 W.W.R. 453; 7 Man.R.(2d) 30 (C.A.), refd to. [para. 137].

R. v. Demeter and Whitmore (1976), 32 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 138].

Counsel:

Monique Cam, for the Crown;

Michael P. Cook, for the accused.

This matter was heard by Smith, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on February 23, 2012.