Law Times

Law Times • June 1, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On CRIMINAL LAW Confusion reigns on who is eligible clerk on the shoulder. "Th is is a robbery," he told her, bran- dishing a knife. Lebar, 50, left the store with $955 while the clerk escaped unharmed. Th e robbery itself was hardly a professional job. Lebar did nothing to hide from the store's cam- eras, and when police arrested him shortly after, he immediately confessed. "I want to apologize to the girl I put the knife to," offi cers 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 diffi cult 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? Th e answer would seem to be clear given 2007 Criminal Code amendments meant to get tough on crime by nixing conditional sentences for violent off ences. Th e changes meant people convicted of a so-called "seri- ous personal injury off ence" could no lon- ger 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 them- selves what exactly that means. Th e law says such crimes include in- dictable off ences involving the use or at- tempted use of violence — or conduct en- dangering 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 off ences, Superior Court Rules on conditional sentence orders still unclear J BY GLENN KAUTH Law Times ust over a year ago, Shawn Michael Roy Lebar walked into a Th under Bay liquor store and tapped the Justice Bonnie Warken- tin wrote in her descrip- tion of the Crown's posi- tion 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. "Th ere's a distinction to be made between vio- lence and the threat of violence," McCartney, a partner at Atwood La- bine Arnone McCartney LLP in Th under Bay, tells Law Times. In the end, Warkentin on whether judges can take the degree of violence into account when faced with cases like Lebar's. "Th ere has to be an objectively seri- ous level of violence be- fore that defi nition will be engaged," he says. Th e Crown, however, 'There's a distinction to be made between violence and the threat of violence,' says Neil McCartney. sided both with and against McCartney. On the question of violence, for example, she ruled McCartney was wrong. "I fi nd it diffi cult to accept that the off ence commit- ted by Mr. Lebar did not involve violence as submitted by the defence," she wrote. "Th e 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 defi nition of a serious personal injury off ence — 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. Th e robbery was Mr. Lebar's only criminal off ence aside from an impaired driving conviction some seven years prior to this off ence." In doing so, Warkentin ruled a con- ditional sentence was appropriate and therefore ordered him to a term of house arrest of two years less a day. For McCart- ney, the decision provides some guidance disagrees, says McCart- ney, noting prosecutors are challenging Warken- tin's ruling before the Ontario Court of Appeal. Th e question of what con- stitutes a serious personal injury off ence, he adds, is one that the courts are likely to be increasingly grappling with. Th e 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 off ences. Th e federal Conservatives have been pushing that agenda since they took power in 2006, some of which remains unfi nished and awaiting consideration by the House of Commons. Th e bills currently before Parliament include: • Bill C-14, which targets organized crime by, for example, automatically deeming murders connected to organized crime to be fi rst degree. It would also create a new off ence aimed at drive-by shoot- ings 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 mari- juana grow-op as well as establish new sentencing fl oors for dealing drugs such as cocaine and pot. • Bill C-25, the government's bid to fol- low through on its promises to restrict the use of two-for-one credit for time spent in remand prior to sentencing. June Specials Visit our web site and save 20% The Criminal Lawyers' Guide to Disclosure and Production Christopher Sherrin and Philip Downes The Criminal Lawyers' Guide to Extraordinary Remedies Brian J. Gover and Victor V. Ramraj Forensic Evidence in Canada, Second Edition Editor-in-Chief: Gary Chayko Associate Editor: Edward Gulliver Prosecuting and Defending Drug Offences Peter M. Brauti and Brian G. Puddington 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 condi- tional 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 discre- tion is taken away from judges, especially when it comes to sentencing." McCartney adds he's even more con- cerned about people like Lebar, who un- der 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 so- ciety. For that type of off ender, 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 Cana- dian Council of Criminal Defence Law- yers, many of the changes are unnecessary and will likely complicate the justice sys- tem. With the organized crime provisions, for example, Crown prosecutors will now have to prove a killing was done for the benefi t of a gang before proceeding with a fi rst-degree murder case, Trudell ar- gues. Such killings almost invariably fi t the fi rst-degree defi nition 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 diff erence does it make?" Similarly, Trudell rejects the govern- ment'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 offi cials 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. See Credit, page 12 Page 9 www.lawtimesnews.com Web Discount (LT 1-4x5).indd 1 5/27/09 2:31:07 PM

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