Court of Appeal says Calgary judge erred by refusing to accept plea bargain

Court of Appeal says Calgary judge erred by refusing to accept plea bargain
Bank heist teller freed after jail term reduced to 6 months — saving her from deportation
Refusing to accept a plea bargain for a bank teller who provided intelligence for robbers, including her boyfriend, was an error, Alberta’s top court ruled Thursday in reducing her sentence.

A three-member Alberta Court of Appeal panel agreed with defence lawyer Greg Dunn that Justice David Gates should not have rejected the joint submission put before him on behalf of Kenza Belakziz, 24.

Gates said the six-month-less-a-day sentence proposed by Dunn and Crown prosecutors Vicki Faulkner and Ryan Jenkins was so low it would bring the administration of justice into disrepute.

But the appeal judges agreed with Dunn that the proposed sentence, which spares Belakziz automatic deportation to her native Morocco, should have been imposed by Gates.

Dunn argued Monday that if judges don’t accept joint submissions negotiated by Crown and defence lawyers, they take away the certainty that plea bargains provide.

Without such certainty, such deals, which help streamline court proceedings, wouldn’t proceed, Dunn submitted.

Dunn said because Belakziz has served more than two-thirds of her sentence, she will be released today.

Dunn also noted the Crowns case against his client was weak, relying on a potentially inadmissible note admitted to be in Belakziz’s hand, resulting in the prosecution agreeing to a lighter sentence than might otherwise be appropriate.

In their written decision, the appeal judges said Gates erred by focusing on the lack of strength of the Crown’s case and not other issues around the need for joint submissions.

“Joint submissions are encouraged for more reasons than the strength or weakness of the case: avoiding trial, saving court time, sparing witnesses or gaining the co-operation of offenders,” the appeal judges said.

“Just because the joint submission is not the resolution that the sentencing judge would have agreed to does not mean that it would bring the administration of justice into disrepute.”

In arguing in support of Gates’ ruling, appeal prosecutor Iwona Kuklicz said her fellow Crown lawyers erred in accepting a sentence for Belakziz below what was required for her crime.

Kuklicz argued trial judges aren’t simply required to “rubber stamp” deals put before them by lawyers.

Belakziz was sentenced by Gates in June to 18 months in jail for her role in setting up a Nov. 24, 2014, robbery at the Bank of Montreal in Mission where she was employed.

She had earlier pleaded guilty to conspiracy to commit robbery by providing confidential information about the 4th Street S.W. branch to her then-boyfriend, Saleem Nasery, and Lucas Windsor and Matthew Valdes.

All three were handed lengthy prison sentences in the five-year range for the armed heist, which involved restraining bank employees with zip ties.

A former bank teller who helped her boyfriend and his friends rob a Bank of Montreal at gunpoint will be released from jail today after having her sentence reduced to an "arguably lenient" six months in jail by the Alberta Court of Appeal.

Thursday's decision by the province's top court will also save Kenza Belakziz, 24, from being deported.

With the new sentence, Belakziz will released from jail right away, said her lawyer, Greg Dunn, because she's already served just over four months, bringing her past her statutory release date.

"We are all thrilled and relieved with the result," said Dunn on behalf of the defence team and the Belakziz family.

"More importantly the decision of the Alberta Court of Appeal re-affirms the critical importance of plea bargains in making our justice system work.  

Last year, Belakziz was convicted of conspiracy to commit robbery. But after her guilty plea, Justice David Gates rejected the six-month sentence proposed by the prosecution and defence and imposed an 18-month jail term.

Belakziz appealed the sentence and Dunn and prosecutor Iwona Kuklicz argued before the Court of Appeal on Monday.

The panel ruled the proposed six-month sentence "was not so disconnected from the offence and the offender as to bring the administration of justice into disrepute."

Gates said the sentence was not within the appropriate range and felt it was "tailored for immigration factors" because Belakziz was at risk of being deported to Morocco with any jail term over half a year.

But a panel of three judges from Alberta's Court of Appeal ruled the defence and the Crown were "entitled to take into account the severe collateral immigration consequence that would result from a sentence over six months."

"Deportation or the threat of deportation would be a particularly harsh consequence for [Belakziz]." 

In November 2014, Belakziz worked at the BMO branch in the southwest community of Mission. She and her then-boyfriend Saleem Nasery and his friends cooked up a plan to rob the institution. Belakziz provided Nasery with confidential information about the bank to help with the robbery.

Belakziz admitted to giving Nasery information on the layout of the bank, the silent alarm, locations where money was stored and details on bait bills and dye packs.

Nasery and two others then robbed the institution in November 2014, tying up employees and holding them at gunpoint. 

By the time the trio of robbers — Nasery, Lucas Windsor and Matthew Valdes — left the bank after 20 minutes with about $12,000 in two bags, police had already set up outside.

Initially, investigators believed Belakziz was a victim before they realized it was an inside job. She was charged a month later. 

Belakziz pleaded guilty to conspiracy to commit robbery in October and signed a document confirming she understood the judge was not bound by the sentence proposed by the lawyers. 

Originally from Morocco, Belakziz's family became Canadian citizens years ago but court heard she didn't. A sentence of more than six months would mean she was likely to be deported to Morocco, where she no longer has family.

Earlier this year, when Gates refused to accept the sentence the lawyers had proposed, Belakziz tried to back out of her plea, but the judge ruled she would not be allowed. 

Some of the victims — bank employees who had been zip-tied together and held hostage — wrote statements describing how the robbery traumatized them and changed their lives forever.

Nasery pleaded guilty in October 2017 to robbery with a firearm, forcible confinement and wearing a disguise. He was sentenced to six years in prison, less time served.

The other robbers, Valdes and Windsor, pleaded guilty in 2015. Valdes received a 5½-year sentence for his role while Windsor got a five-year, two-month prison term.

It is a priority for CBC to create a website that is accessible to all Canadians including people with visual, hearing, motor and cognitive challenges.