Shortly after midnight, Kristopher Clarke, 19 years old, walked into a convenience store wearing a skeleton mask and pulled out a starter’s pistol, which he pointed at the head of the victim. He demanded cash and cigarettes. He threatened to shoot if his demands were not met. Clarke plead guilty and was sentenced by Moore J who accepted a joint submission of two years less a day.

The joint submission was premised and accepted on the basis of the following factors. First, Clarke was a youthful first offender, who pleaded guilty.

Second, Moore J described Clarke as having “an incredible amount of potential” given the family support and prospect for rehabilitation [@para 5].

Third, Clarke was released on bail pending disposition and had abided by all of the release conditions.

Fourth, at the time of the robbery Clarke was suffering from depression but had stopped taking his anti-depressants because he could no longer afford them. A detailed psychiatric report was filed.

On appeal, however, Clarke argued that in light of fresh evidence, which revealed that he had taken significant steps towards rehabilitation following disposition, the sentence should be reduced. The Ontario Court of appeal disagreed: 2014 ONCA 296.

Before declining to admit the fresh evidence, the Court of Appeal first set out the categories of proposed fresh evidence, which included:

Letters of support from people who have known Clarke for many years
Letters of support from Clarke’s employers from various subway restaurants where Clarke worked on a part-time basis.
Letters relating to Clarke’s education post sentencing, which included the completion of high school credits and enrolment in a college program.

Although the Court commended Clarke for his efforts in both education and employment ultimately they determined that the fresh evidence did not:

significantly alter the picture presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family. Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge [para 19].

Moreover, in concluding that the sentence was fit the Court highlighted that:

given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence [para 20].

This approach is consistent with the comments of the Saskatchewan Court of Appeal in R v Stonechild, 1995 CanLII 3925 (CA), where the Court stressed that:

(…) crimes violence will be visited with a significant term of imprisonment. Robbery with violence is the type of crime from which the public is entitled to be protected and the sentence imposed must leave no doubt that such conduct cannot be tolerated.
Service stations and other places of business that remain open during the night (often with only one attendant) are particularly vulnerable. Taxi drivers are often in a similar position. Robbery is particularly serious because of its inherent danger to human life. Any escalation of violence toward a victim as well as resistance to the offender can easily result in death or serious bodily harm [paras 7-8].