Lees v. R., [1979] 2 SCR 749

Supreme Court of Canada

Lees v. R., [1979] 2 S.C.R. 749

Date: 1979-05-31

Michael Robin Lees (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: April 30; 1979: May 31.

Present: Laskin C.J. and Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Robbery—Stabbing—Sentencing—First offender—Character and psychiatric evidence favourable to the accused—Prejudicial evidence adduced in reply—Evidence as to weapon, disguise found in accused’s apartment—Evidence as to accused’s plans to commit a further crime.

Appellant was convicted on a plea of guilty of robbery. The provincial court judge sentenced him to eight years’ imprisonment. The offence occurred at a Safeway Store in Toronto where appellant and a companion concealed themselves in an underground parking lot after having deflated a tire on the automobile of the store manager. When all the other employees had left the manager entered the parking lot and upon finding that his tire was flat began to change it. Appellant appeared with a butcher’s bone paring knife and, when the manager resisted his advance by reaching for a tire iron, appellant stabbed the manager three times and inflicted injuries including a collapsed lung and cuts on the hand. The manager was forced to surrender his keys and the sum of $20,000 was stolen. The injured man was left in the premises but appellant did after leaving the premises phone for an ambulance. The manager recovered but now has a partially disabled hand. Appellant was arrested and brought to trial about a year after the robbery. After the plea of guilty a police officer gave an account of the facts and in doing so made certain observations favourable to the accused. A psychiatrist then gave evidence again favourable to the accused pointing to his “non-violent character” and “genuine remorse”. Further evidence of good character was elicited from appellant’s employer. The Crown however recalled the police officer who, after alluding to the increase of armed robberies in Toronto, indicated that at the appellant’s apartment shortly after his arrest the police found another weapon and disguises and that appellant had there told them that he had been planning another robbery. No objection was taken to the admissibility of the statement and appellant did not crossexamine on it. Appellant had no previous convictions and on

[Page 750]

appeal argued that the trial judge had in imposing sentence taken into account other untried or potential offences. The Court of Appeal dismissed the appeal without recorded reasons.

Held: The appeal should be dismissed.

It did not appear that the trial judge had considered any potential untried offence and it was doubtful whether there was a possible offence. The impugned evidence was in the circumstances properly admissible on the issue of appellant’s character, conduct and attitude and indeed was particularly relevant in view of the medical evidence adduced by the appellant. It was open to the trial judge to weigh this with the other evidence which had been given and his reasons did not disclose any undue reliance on the reply evidence nor any undue rejection of the evidence called for the appellant.

R. v. Harris (1917), 30 C.C.C. 13; R. v. Huchison (1972), 56 Cr. App. R. 307; R. v. Cote (1967), 3 C.C.C. 97; R. v. Taylor, [1959] O.W.N. 1 distinguished; R. v. Warner, Urquhart, Martin & Mullen (1946), 2 C.R. 316 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing without recorded reasons an appeal from sentence imposed by a provincial court judge after a plea of guilty to a charge of robbery. Appeal dismissed.

John A. Olah and Paul H. Shapiro, for the appellant.

Casey Hill, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal attacks the legality of a sentence of eight years’ imprisonment imposed upon the appellant by a provincial court judge after a plea of guilty to a charge of robbery. It is alleged that the sentencing judge was in error in that in imposing the sentence he admitted and acted upon evidence of a potential but untried charge not connected with the offence to which the plea of guilty had been entered. An appeal to the Ontario Court of Appeal was dismissed without reasons being given and this appeal comes by leave of this Court. Due to the absence of reasons in the

[Page 751]

Court of Appeal, it is in effect an appeal from the trial judge.

The offence occurred at a Safeway Store in Toronto. The appellant and a companion, who had once been employed by Safeway and who was familiar with the company’s procedure, entered an underground parking lot on Safeway’s premises and concealed themselves after having deflated a tire on the automobile of the store manager. When all other employees had left the premises, the manager entered the parking lot. Upon finding that his tire was flat, he began to change it. The appellant then appeared with a butcher’s bone paring knife and when the manager resisted his advance by reaching for a tire iron, the appellant stabbed the manager three times and inflicted injuries which included a collapsed lung and various cuts on the hand. The manager was forced to surrender his keys. The store premises were entered and the sum of $20,000 was stolen. The manager was left in the store premises but after leaving the premises the appellant phoned for an ambulance to come to the manager’s assistance. The manager recovered after hospital treatment but has a partially disabled hand as a result of the attack. The appellant was arrested and brought to trial about one year after the commission of the offence.

After the plea of guilty, a police officer gave an account of the facts to the court. In doing so he made certain observations favourable to the accused. The following passage from the transcript is found near the conclusion of his evidence while he was under cross-examination:

Q. Could you tell the Court, please, Sergeant Jackson, about his attitude as such at that point and what he had to say about it?

A. Well, when he was first arrested he immediately admitted the offence, stating that he had done it. He was very honest with us. He took us to his apartment and gave us the knife he had kept for a year, in fact, was still using it. He gave us the glasses and other. apparently he has worn. Informed us he had bought this furniture with some of the stolen money and he definitely appeared to be remorseful, Your Honour. He told

[Page 752]

us on a couple of occasions he wanted to go back to see the victim to see if he had recovered, so he did show some remorse and he did cooperate with the police.

Q. Now, as a result, do you know, Sergeant, whether Mr. Lees has been in any difficulty with the law anywhere before this?

A. He has never been in any difficulty as far as the Criminal Code is concerned to my knowledge.

Q. What about…

A. Criminal offences.

Q. Shall we include drug offences with that?

A. That’s in the Criminal Code that I’ve got. It’s right at the back.

Q. Have you formed—well, as a result of your investigation, Sergeant Jackson, can you give us some indication as to the accused’s proclivity for repeating this type of offence?

A. Well, in my opinion, I have no way of saying—he could go out tomorrow and do the same thing—but in my opinion I would say I don’t think he would do it again.

The appellant then called evidence from a psychiatrist. The psychiatrist referred to the disturbed early life of the appellant, who was thirty-five at date of trial, and stated his opinion that the appellant was not a violent man, that he showed genuine remorse for his conduct and that he had learned his lesson and would be unlikely to commit further acts of violence. Further evidence of good character was elicited from the appellant’s employer.

The Crown then recalled the police officer. After giving some evidence regarding the increase in armed robberies in Toronto, the following passage appears in his evidence:

Q. Now, dealing with Mr. Lees. Am I right in saying that you’re one of the officers that arrested him?

A. Yes, sir, I arrested him.

Q. Where did you arrest him?

A. At his place of employment.

Q. Did you subsequently go to his apartment?

A. Yes, sir.

Q. And can you tell us what happened there, what you found or.

A. Well, we found the weapon that was used in this offence. We found another weapon and other dis-

[Page 753]

guises and he was questioned in relation to this other weapon and the disguises and he informed us that he had been planning another robbery.

Q. And am I right in that when you arrested him it was almost a year to the date from the occurrence that we’re dealing with?

A. Yes, sir. He had told us the reason that he had been planning another robbery had been that he’d spent all the money, the $20,000.00 that was stolen in the first robbery.

No objection was taken to its admission and counsel for the appellant did not cross-examine upon it.

Sentence was then imposed and since the trial judge’s reasons are short they are reproduced in full:

I think that defence counsel has obviously prepared his submissions carefully and ably. I cannot say that I am convinced that this man has learned his lesson. By being involved in a shocking incident and by being in gaol for months, he may have learned his lesson. I don’t know whether he has or not. What the police officer testified a few minutes ago, that a year after this unfortunate incident this man had a weapon in his residence and a mask, and he admitted at that time to being considering a further crime. It leaves one somewhat pessimistic. However, I do realize that by now he may have different feelings and by the end of his sentence he may be fully committed to living a good life.

Despite the fact that he had seriously wounded his victim, he and his associate forced the victim to proceed to a store and therein open the safe from which some $20,000.00 was obtained. This offender is 35 years of age and he’s never been convicted of a criminal offence. The factor of deterrence, in my view, outweighs any other factor in this case and a severe sentence must be imposed, although I’ve taken a great much into account in his favour, his previous unblemished record and his plea of guilty. He will no doubt obtain favourable consideration for parole at some early stage of his incarceration. I would support such consideration and I will support it if need be. I now sentence him to eight years in penitentiary.

The appellant argued that the trial judge in imposing sentence took into account other untried or potential offences and increased the sentence that he would otherwise have imposed. It was contended that this was error for it is only when an accused asks at the time of sentencing that an

[Page 754]

offence or offences other than the ones charged be taken into consideration that a judge may consider additional untried offences. In support of this position, several cases were cited, they include R. v. Harris[1], Ontario High Court per Mulock C.J.; R. v. Huchison[2], English Court of Appeal (Criminal Division); R. v. Cote[3], Saskatchewan Court of Appeal; and R. v. Taylor, June 25, 1958, unreported but noted at [1959] O.W.N. 1, Ontario Court of Appeal per Schroeder J.A., and other cases.

These cases, however, all speak of circumstances very different from those before us now. In each one it was clear that the sentencing judge considered earlier offences uncharged or unproved and increased the sentences to be imposed as a result. That is not the present case. It does not appear to me that any potential untried offence was considered by the trial judge in the case at bar, and it is even doubtful whether there was a possible offence. The appellant had tendered evidence of good character. He tendered as well evidence from the psychiatrist which went to show that he was not a danger to the community and that a long detention would not be necessary. The trial judge was right in receiving this evidence. It was relevant on the question of sentence and it was entitled to serious consideration. In reply the Crown, which had not attacked the character of the appellant in giving particulars of the offence, gave evidence of the circumstances which were discovered upon the appellant’s arrest about a year after the offence. This evidence was properly admissible on the issue of the appellant’s character, conduct, and attitude, all proper factors to be taken into consideration on sentencing. See Roach J.A. in R. v. Warner, Urquhart, Martin & Mullen[4], at p. 321 (Ontario Court of Appeal). It was particularly relevant in this case in view of the medical evidence adduced by the appellant upon these matters. It was open to the trial judge to receive this evidence and to weigh it and consider

[Page 755]

it along with the evidence of good character and the medical evidence which had been given. His reasons do not, in my opinion, disclose any undue reliance on the reply evidence nor do they indicate any wholesale rejection of the evidence called for the appellant. The trial judge appears to have given fair and balanced consideration to the evidence before him. I am unable to find any error in law upon his part and I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: McKeown, Yoerger, Spearing & Piller, Toronto.

Solicitors for the respondent: The Ministry of the Attorney General, Toronto.