A judge's obligation to impose a fair sentence trumps the obligation to impose a sentence to protect the public.
That's one of the arguments where Yellowknife defence lawyers are, again, challenging mandatory minimum sentences for crimes involving firearms.
Cameron Bernarde is being sentenced for robbing a convenience store in Hay River, N.W.T., at gunpoint a year ago.
In a Yellowknife courtroom on Wednesday, the prosecutor called for a prison sentence of four years — the minimum for armed robbery.
Two years is more appropriate, said Bernarde's lawyer, Peter Harte.
Harte focused on the main principle that judges are required to consider when sentencing anyone. Called "proportionality," it says sentences must reflect the seriousness of the crime and the blameworthiness of the person being sentenced.
Harte said there's no doubt the crime was serious, but argued Bernarde is disabled due to fetal alcohol spectrum disorder (FASD) and, therefore, cannot be held fully accountable for the crime.
Danger to the public
Harte submitted medical reports and psychological tests that he said show the 22-year-old has the developmental age of someone between nine and 12 years of age. Bernarde was diagnosed with FASD 10 years ago.
One report indicated Bernarde has an IQ of 59, indicating he was borderline handicapped. The doctor who examined him said he has "a significant cognitive disability," struggles to understand the consequences of his actions, and requires intense supports to succeed at daily living. Harte said Bernarde has never had those supports.
Justice Louise Charbonneau pointed out that, "all of these things make him more of a danger to the public."
Harte said, while protecting the public is an objective of sentencing, proportionality is the main principle: "You can't keep him in jail for longer than he deserves for the sake of protecting the public.
Bernarde's criminal record, which includes a conviction for sexual assault but is made up mostly of property crimes, is a symptom of the challenges he faces, not something to be held against him in sentencing, said Harte.
The Supreme Court of Canada has ruled that mandatory minimums imposed by parliament cannot be ignored simply because they are harsh sentences.
They must be so inappropriate that they "shock the conscience" of a reasonable person. Harte said that would be the reaction a reasonable and informed person would have to sending Bernarde to prison for four years.
Prosecutor Brendan Green said his recommendation of a four-year sentence takes into account the challenges Bernarde faces as a result of his FASD. He said the starting point for sentences for armed robbery is six years in prison.
Green said Bernarde is clearly an adult who was aware of his actions when he robbed the convenience store. Green said there was some planning to the crime. Bernarde went home from after drinking at a friends place and got a gun.
"He conceals his face. He has knowledge that if he is caught there will be consequences. Mr. Bernarde recognizes he has broken a rule."
Green said the court cannot strip Bernarde of all personal responsibility for his actions. Green said the mandatory minimum has been upheld even in cases where the offender has suffered from severe mental disability.
Justice Charbonneau said she will deliver her sentence in March.