Saskatchewan Court of Appeal clarifies definition of ‘highly vulnerable’ victims in robbery case

The Saskatchewan Court of Appeal has reduced the sentence of an Indigenous offender in a case which clarifies the definition of a “highly vulnerable” victim in a robbery.

In R v Charles, the court considered the nature of one’s employment in determining the degree of their susceptibility to being robbed. According to the court, people who were just casually walking down the street in the middle of the night cannot be considered as “highly vulnerable” to robbery.

On August 14, 2020, Jeremy Charles was high on methamphetamine when he approached two people walking home in downtown Saskatoon. Armed with a long, spiked metal bar, Charles ordered the victims to surrender their valuable items. One of them gave his phone and debit card to Charles, who took the items and ran off. He was later arrested.

Charles pleaded guilty to the charge of robbery. The sentencing judge relied heavily on the case,
R v Johnson, 2021 SKCA 17, which stated that robbery convictions generally carry a sentence of three-years’ incarceration. According to the judge, the decision in Johnson means “that robberies committed against vulnerable victims are to be visited with serious penalties.” Further, the judge took special notice of the “particular vulnerability of store clerks and taxi drivers who often work alone and late into the night.”

Charles’ counsel raised the defense that unlike taxi drivers or store clerks, the victims in this case were not “inherently vulnerable” to being robbed, so a lesser penalty of imprisonment for 12 to 15 months would be more appropriate. Further, defense counsel drew attention to the fact that Charles is an Indigenous person and his background should be considered for the purpose of reducing his sentence. Despite these reasons, the judge sentenced Charles to a 30-months custodial sentence.

On appeal, the court found that the judge misapplied the case of R v Johnson in determining the penalty. In Johnson, the victim was a taxi driver who was robbed at knifepoint by a passenger. The court stated that the victim was considered “highly vulnerable” to robbery because of the nature of his employment. The Johnson ruling is consistent with several cases in which the court has repeatedly held that “offenders who commit robberies against vulnerable commercial establishments or victims should be subject to serious penalties.”

The Court of Appeal adopted the view that the Johnson ruling applies to robberies committed against persons who are particularly vulnerable to being robbed because of the nature of their employment.

According to the court, unlike the victim in Johnson, the victims in this case were simply walking down the street at the time of the incident. They were not required by the nature of their employment to be in a situation where they are susceptible to being robbed, and so they cannot be considered as “highly vulnerable” for the purpose of imposing a higher degree of penalty against the offender.

The appeal court also found that the sentencing judge failed to properly appreciate the circumstances of Charles as an Indigenous offender. The Supreme Court of Canada in R v Gladue and R v Ipeelee laid down the rule that systemic factors and the background of an Indigenous offender should be given weight in determining their moral culpability.

The Court of Appeal then proceeded to consider Charles’ history of transience, poverty, substance abuse and domestic violence which affected his moral culpability. The court also took note of the fact that Charles did not physically harm the victims and the amount of property he took was only minimal. Considering these circumstances and the time that Charles’ already served in custody prior to sentencing, the court reduced his sentence to 14 months.