R. v. Draper, 2015 MBPC 6

CITE# 2015 MBPC 6 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Michael Himmelman, for the Crown ) - and - ) ) Marlin James Henderson ) Darren Sawchuk, for the Accused ) ) Judgment delivered: the 29 day of ) January, 2015 CORRIN, P.J. The Factual Background [ 1 ] On April 3 rd , 2013 at approximately 12:00 p.m., the 27 year old accused attended to a parking lot on St. Anne's Road, Winnipeg, and entered an unlocked 2011 Ford F-150 truck, located a spare set of keys and stole the vehicle. The truck was valued at over $20,000.

A short time later the accused was travelling east on Beliveau Avenue when he struck an automobile which was being driven in the opposite direction. The collision caused approximately $3,000 damage to the other vehicle and caused it's airbags to deploy. The driver of the automobile sustained injuries to his leg and back which were described in court as minor injuries. As a consequence of these injuries he had to wear a neck brace and attend physiotherapy. The accused then fled from the scene of the accident and struck a steel crosswalk sign pole, causing it to be significantly damaged.

After this collision, the accused once again fled the scene. A short distance from the second accident, while travelling on the sidewalk for a short distance, the truck nearly collided with a pedestrian who had to take evasive action to avoid being struck by the accused. A short time later, officers of the Winnipeg Police Service located the accused parked in a nearby parking lot, with the accused still in the driver's seat. When police vehicles converged on the subject truck, the accused repeatedly drove back and forth striking a police vehicle four times.

He was then forcibly removed from the truck at which time he threw open the driver's door and struck one of the arresting officers. When forcibly removed from the vehicle he threw a punch at the arresting officer. This punch, directed at the officer's head, failed to connect. Damage to the truck was estimated at $10,000. [ 2 ] At the time of arrest the officers discerned signs of impairment and formed the opinion that the accused's ability to operate a motor vehicle had been impaired by alcohol and/or a drug. He was accordingly arrested and charged with drive impaired, among other things.

He was later read the breath demand, which he refused and was then read the refusal demand. The accused declined to provide a sample of his breath suitable for a breathalyzer analysis. [ 3 ] The accused pled guilty on September 2, 2014 to the following offences in relation to these matters: • Operate motor vehicle impaired pursuant to S.253(1) (

a) of the Criminal Code of Canada ; • Assault peace officer pursuant to S.270 of the Criminal Code of Canada ; • Fail to stop at the scene of an accident pursuant to S.252 of the Criminal Code of Canada ; • Dangerous operation of a motor vehicle pursuant to S.249 of the Criminal Code of Canada ; and • Theft of a motor vehicle pursuant to s. 333.1 of the Criminal Code of Canada . The Aggravating and Mitigating Factors [ 4 ] The aggravating factors are the assault on a peace officer who was in the course of his duties and the fact that the accused is also a disqualified driver with a lifetime ban.

The fact that the accused has been sentenced 17 times as an adult including several motor vehicle offences is also an aggravating circumstance. [ 5 ] The mitigating factors in this particular case are the accused's guilty pleas and his expression of remorse and apology for his actions as recounted in the pre-sentence report as related during the sentencing hearing. The fact that the accused is also addicted to certain drugs and was on a four day cocaine and crystal meth binge is also, but to a lesser degree (see R. v. Draper 2010 MBCA 35 at paragraph 12 ), a mitigating factor. The Position of the Crown

[ 6 ] Crown counsel argued for a lengthy penitentiary sentence, it was his position that the accused, having accumulated 64 convictions since 2001, was disentitled to any leniency. The prosecution reminded the court that Mr. Henderson's criminal misconduct had essentially been consistent from his teens until the present and reflected what he termed an "incorrigible" attitude in relation to breaking the law. Mr. Himmelman reminded the court that the accused had stolen vehicles before and had been involved in a prior violent offence involving an assault on a peace officer in 2012.

The Crown recommended a global sentence which was consistent with what he described as being the very high moral culpability of the accused, in the amount of 5 ½ years.

The breakdown of the Crown's recommendation was as follows: • Dangerous operation of a motor vehicle.............. 2 ½ years; • Assault peace officer............................................ 1 year consecutive • Theft of a motor vehicle....................................... 1 year consecutive • Impaired driving.................................................. 6 months consecutive • Fleeing the scene of an accident........................... 6 months consecutive • Total.................................................................... 5 ½ years [ 7 ] The crown was willing to give presentence credit for time in custody at 1.5 to 1.

No mention was made of the totality principle in reference to the global sentence. The court was not referred to any Manitoba sentencing jurisprudence either. The Position of Defence Counsel [ 8 ] Counsel for the accused argued for a significantly less lengthy sentence; a sentence which he argued should be mitigated by substantial Gladue factors. Mr.

Sawchuk's breakdown of recommended sentence was as follows: • Drive impaired..................................................... 1 month • Assault peace officer............................................ 5 months consecutive • Fleeing the scene of an accident........................... 3 months consecutive • Drive dangerous.................................................. 15 months consecutive • Theft of motor vehicle......................................... 6 months consecutive • Total.................................................................... 30 months or 2 ½ years [ 9 ] With 1.5 to 1 credit for pre-sentence custody, Mr.

Sawchuk's recommendation would see his client released upon sentencing as there would be no time to be served going forward. Mr. Sawchuk argued that although he agreed that his client posed a significant threat to the community on the day of the incident that his degree of responsibility for this criminal behaviour was lessened by his significant level of impairment which he said affected his client to the extent that he couldn't even remember what he had done. [ 10 ] Mr. Sawchuk was of the opinion that Mr.

Himmelman's recommendation would see his client sentenced for the degree of risk he posed during the incident as opposed to what actually happened during the incident. Mr. Sawchuk reminded the court that it shouldn't sentence the accused for what might have happened, as opposed to what actually did. [ 11 ] Mr. Sawchuk also reminded the court that the presentence report described his still youthful client as suffering from significant Gladue factors. This included a dysfunctional family of origin and early exposure to alcohol abuse.

The court was also reminded that the accused had apparently become addicted to drugs as a result of his exposure to prescription medication which was necessary in order to help him sleep in the context of a home situation where he had to contend with the unsettling sleeping and household disruptions caused by two autistic siblings. Analysis and Decision [ 12 ] Crown counsel relied on two cases: R. v. Teed , a decision of the Saskatchewan Court of Appeal at 2003 Carswell SASK 788 and R. v. C. (IJW) a decision of the British Columbia Court of Appeal at 2008 Carswell BC 2030 .

The first case, Teed , involved an accused who rear-ended another vehicle after engaging in high speed and erratic driving. This accused had been driving without headlights after dark. He struck and seriously injured a pedestrian, failed to stop and then drove into a parked car that in turn crashed into two parked vehicles. He then struck a witness who had attempted to restrain him until police arrived, at which point he assaulted an arresting officer.

He was charged with dangerous driving cause bodily harm, failing to remain at the scene of an accident, driving while disqualified as well as assaulting a peace officer, resisting arrest and simple assault in relation to the witness. The Court of Appeal affirmed a global sentence of seven years and three months imprisonment for the 42 year old accused who was described as having had a very lengthy criminal record, including prior convictions for crimes of violence and driving offences.

The Court of Appeal held that the trial judge was correct in his assessment that the accused was a menace to public safety and that protection of the public was a paramount sentencing consideration in all of the circumstances. The court also upheld the trial judge's conclusion that Gladue factors had little or no application in the circumstances of the particular case. The trial judge had basically suggested that Gladue principles did not apply because of the seriousness of the offences. [ 13 ] The dicta of the Manitoba Court of Appeal in R. v.

Smoke 2014 MBCA 91 , a decision delivered by the Manitoba Court of Appeal on October 7, 2014 suggests that our Court of Appeal's view of Gladue principles does not accord with their Saskatchewan counterparts in Teed . At paragraph 41 in Smoke , Beard, J.A. has the following to say with respect to this subject matter:

"It is worth repeating that, while the impact of an accused's circumstances as an Aboriginal offender often comes into play for less serious offences and results in a community based sentence instead of a short period of incarceration, the Supreme Court of Canada has recognized that, even for serious offences requiring a period of incarceration, these circumstances may still be relevant to lessen what would otherwise be a fit and proper period of incarceration. (See Gladue at para. 79)" And at paragraph 42, Beard, J.A. relates: "Thus the factors related to the accused's circumstances as an Aboriginal offender must be taken into account as mitigating factors going to moral blameworthiness and weighed together with all of the other mitigating and aggravating factors related to the offender and the offence, in determining the appropriate sentence for each offence.

This applies whether the link is direct or indirect. This is what the sentencing judge failed to do in this case, resulting in a failure to consider a relevant factor, which is an error in law." [ 14 ] This court agrees with Mr. Sawchuk that the facts related to the accused's Aboriginal background in our case did contribute to the commission of the offences in relation to his substance abuse issues.

This certainly appears to be suggested by the pre-sentence report findings although I disagree with other findings in relation to mental health issues as the accused clearly has a history of disproportionate anxiety, depression and suicidal ideation, all of which might well be attributable to, at least in part, to the burden of cumulative Gladue factors. I also note that the bodily harm caused by the dangerous driving in Teed was extremely serious. For all of the foregoing reasons, I am not of the opinion that Teed is very instructive in reference to the case at bar. [ 15 ] The R. v.

C. (IJW) decision involved a youth accused who was driving a stolen vehicle with three passengers. Efforts by the police to stop the vehicle led to a high speed chase. During the pursuit the accused drove his vehicle into a police vehicle at fairly high rate of speed, when an officer in the police vehicle got out and pointed his firearm at the accused and yelled at him to show his hands the accused reversed his vehicle and struck the police vehicle again. As the vehicle accelerated forward the officer fired his sidearm three times, striking the accused and killing his front seat passenger.

The accused was found guilty after trial of possession of stolen property, dangerous driving, flight in a motor vehicle and two counts of assault with a weapon (the vehicle) on police officers and was sentenced to a total of six years imprisonment. His sentencing appeal was dismissed. The court is of the view that the facts in our case are distinguishable from those in C. (IJW). Our accused, Mr. Henderson, did not present the same risk to police as did the accused in the British Columbia case.

Two officers testified in the trial that the ramming and pushing of their vehicle by the British Columbia accused caused them to fear significant bodily harm or death. One of the officers reasonably believed that he was going to be killed. The Court determined that the evidence supported the conclusion that the accused was attempting to ram the police vehicle in order to push it out of his way in order to flee the scene in order to evade apprehension. The police vehicle had been pushed a considerable distance down the road-way.

In this court's view the British Columbia decision is also distinguishable in other ways. The British Columbia case involved an accused whose situation was seriously aggravated by his history of repeatedly engaging in dangerous driving in the context of police pursuits. He was actually serving a sentence for the same offence when this matter arose.

There was also recognition by the appeal court that the trial judges sentence, although highly punitive and deterrent orientated for such a youthful offender, was not demonstrably unfit, in the sense that there was a failure in principle or a failure to consider or over emphasis of relevant factors by the sentencing judge.

In other words, the court of appeal implied that they might have imposed a different sentence if they were not required to show "considerable deference" to the decision of the sentencing judge for legal reasons. [ 16 ] The court observes that the total sentence recommended by the Crown is the same as that imposed on the accused in the previously cited 2014 Smoke case (at paragraph 13 ). Smoke involved convictions for impaired driving cause death, impaired driving cause bodily harm (2 counts) and failing to stop at the scene of an accident, all arising from a serious traffic accident.

The sentence of 5 ½ years imposed on Smoke is the same sentence that the Crown is seeking in the Henderson case. [ 17 ] In Smoke , Beard, J.A. at paragraph 51 observes that it is "reasonable to assume that the range of sentence for impaired driving causing bodily harm should... (be within) a range at 6-24 months". It is noteworthy in the case at bar that Mr. Himmelman has recommended a sentence of 2 ½ years for the accused's dangerous driving with a six month consecutive sentence for the impaired driving offence.

This would be more time that the appropriate range of sentence for impaired driving cause bodily harm. [ 18 ] Defence counsel filed three cases. These were R. v. Britten , a decision of the British Columbia Supreme Court, 2004 Carswell BC 1128 , R. v. Gibson , a decision of the Manitoba Court of Appeal, 1988, Carswell MAN 446, and R. v. Michael Wilson , an unreported decision of Provincial Judge Richard Chartier (as he then was) delivered April 18, 2001. In Britten the 23 year old accused had fled from police in a stolen pick-up truck causing a high speed chase over a considerable distance.

During the chase he went through a red light and made illegal and dangerous turns which involved the use of an oncoming traffic lane. He also overtook cars at high speed and came dangerously close to striking a police officer and a pedestrian at an intersection before losing control of his vehicle and striking a sign post. He pled guilty to dangerous driving, possession of stolen property and driving while disqualified. He had a related criminal record. The sentencing judge noted that "sentences for these offences should be substantial even though death or serious bodily injury does not result" (at para. 36). Mr.

Britten, 23 years of age, who had stolen the vehicle to support his drug addiction was sentenced in the range suggested by Crown counsel.

The sentencing judge imposed sentences of imprisonment as follows: • 18 months for dangerous operation of a motor vehicle; • 18 months for possession of stolen property, to be served concurrently; • 12 months for driving while disqualified to be served consecutively. • A total global sentence of 30 months. [ 19 ] The Gibson case saw the appeal court substitute a trial judge's sentence of three months with a sentence of one year for an accused who pled guilty to dangerous driving while under the influence of alcohol. He had previously been suspended indefinitely from driving.

The accused, Gibson, had driven his vehicle with four passengers, recklessly at high speeds while being pursued by RCMP on rural highways. He evaded a police roadblock and drove down the wrong side of a divided highway while doing so. He also fled from his vehicle at the end of the chase and was found by police, hiding in the woods. It was noted by Lyon, J. A. that he showed no remorse whatsoever for his dangerous driving and had bragged to police that he would serve his time and be out in 30 days. He had a serious

record of previous driving offences including impaired driving. The only mitigating factor in his favour was found to be his youth. [ 20 ] The last case, Wilson, involved an aboriginal offender who had been driving at excessive speeds on the highway when he collided head on with another vehicle while attempting to pass a vehicle in his lane. The accident had occurred at a point in the highway where there was a clearly marked double solid line preventing vehicles from passing one another. The accused's passenger was killed as a result of the collision.

The three occupants of the other vehicle were all injured in the accident. The accused, at a hospital after the accident, refused to provide police with a blood sample. The accused pled guilty to drive dangerous cause death and three counts of drive dangerous cause bodily harm. He was 20 years of age at the time of the accident, and had an extensive prior Highway Traffic Act record. He was also a suspended driver. A further aggravating feature was that the accused was on judicial interim release for a drive dangerous charge at the time of involvement. Mr.

Wilson was sentenced to 20 months imprisonment on the drive dangerous cause death and the same concurrent sentence on the drive dangerous cause bodily harm counts. The Crown in our case has recommended a 2 ½ year sentence for the drive dangerous charge against Mr. Henderson. Decision [ 21 ] The court has also done some independent research with respect to these matters in order to determine what recommendations have been made by counsel and what sentences have been imposed in other somewhat similar, and even more serious, cases [ 22 ] In R. v.

Shawn Ward , a sentencing decision unreported and delivered May 10, 2011 Garfinkel, J. of this court received and endorsed a Crown recommendation for a four year sentence involving an incident where the accused, a disqualified driver with a related record which included eight prior auto theft convictions and two prior flight from police convictions as well as six auto-related possess good obtained by crime convictions, pled guilty to having possession of a stolen motor vehicle, failure to comply with a probation order (non-compliance with recognizance requirements) and flight from police.

The facts of the case were extremely serious, involving a high speed police chase through a populated city area just before midnight. The stolen vehicle was deliberately backed into a police cruiser and there were some near misses involving two other police vehicles. Numerous traffic controls were disregarded and speeds up to 100 km per hour were attained. The chase ended when the accused rammed a police vehicle which was attempting to block his escape at an intersection. The distance of the high speed pursuit was 15.9 km.

Although the Ward charges differ somewhat from the charges before the court in Henderson it is nevertheless noteworthy that the actual risk to the police and general public was probably much greater in Ward than in the case at bar. Ward was a contested sentencing where the defence had recommended a global sentence of 30 months on all of the charges. [ 23 ] In R. v. Garneau

(2007) QCCQ 12210, the court imposed a sentence of three years incarceration for dangerous driving cause the death of two people which involved street racing. An aggravating factor was the accused's consumption of alcohol, although he wasn't convicted of impaired driving. This sentence also suggests that the Crown has been somewhat misdirected in its reliance on the Teed and C. (J.J.W.) decisions. [ 24 ] In R. v. Cook , 2013 SKPC 161 , Hinds, J. concluded after thoroughly reviewing caselaw in Saskatchewan and other jurisdictions, in a 103 paragraph decision respecting a charge laid pursuant to s.252(1) (

a) of the Criminal Code of Canada , that there was a broad range of sentences for failing to remain at the scene of an accident where bodily harm occurs.

At paragraph 89, Hinds, J. states "a period of incarceration ranging from 2-15 months will generally be required to denounce and deter others from fleeing the scenes of an accident where there is knowledge that bodily harm has occurred." The Crown has asked for a sentence of six months in our case. [ 25 ] The accused, Cook, had been drinking prior to her accident and had run over another intoxicated woman who was lying on the roadway and then left the scene without coming to the seriously injured woman's assistance. The police investigation subsequently linked Ms.

Cook to the incident and she eventually admitted her involvement therein while under questioning at the police station. Ms. Cook, a university student with no record, was sentenced to three months incarceration, the same amount of time was recommended for Henderson by his counsel, Mr. Sawchuk. [ 26 ] In an earlier

section of this decision, at paragraph 13, I cited the Smoke case, a recent decision of our Court of Appeal involving charges of impaired driving cause death, impaired driving cause bodily harm and failing to stop at the scene of an accident. While the aboriginal accused in Smoke was only 18 years of age at the time of his incident and therefore not as mature an offender as Mr. Henderson and also had a much less lengthy criminal record, both accused presented as aboriginal offenders with mitigating Gladue factors.

The Court of Appeal in Smoke found that the accused's aboriginal background had led to him developing both a drug and alcohol addiction and as such was a significant underlying cause leading to him committing his offences. The Smoke factors as described by Beard, J.A. at paragraph 47 of her decision were quite similar to those cited by defence counsel during his submission. Smoke had been determined to have driven through several red lights and had driven at over 100 km per hour just prior to the collision. His speedometer was frozen at 72 km per hour at the time of the collision.

The impact of the collision in Smoke was so great that the SUV he struck was turned more than 90 degrees and went up onto the sidewalk where the deceased was standing at a bus stop, causing her to suffer such serious injuries that she died a short time later. Three other people were also injured – the driver of the other vehicle, and two passengers in the car with the accused. Smoke also fled the scene and was not arrested until two days later. One of Smoke's passengers told police that before the collision they had been trying to persuade him to slow down.

After his arrest the accused was overheard advising his brother to tell the passengers to remain silent and not talk to the police.

Smoke's sentence, as determined by the Court of Appeal was 4 ½ years incarceration for impaired driving cause death, 20 months for each count of impaired driving cause bodily harm to be served concurrently and concurrently with the sentence for impaired driving causing death and one year for failing to stop at the scene of an accident, to be served consecutively to the sentence for impaired driving cause death. [ 27 ] The total 5 ½ years global sentence in Smoke suggests that the Crown's recommendation of 5 ½ years in the case at bar may be disproportionate in the circumstances of our accused and our offence incidents.

This is particularly so when one remembers that Beard, J.A., stated that the appropriate range of sentence for impaired driving cause bodily harm is within a range of 6-24 months. This observation is of interest as it inferentially suggests that Mr. Himmelman's recommendation for a six month sentence of incarceration is at the high end of "responsibility" for a single count if impaired driving simplicitor, a point made by defence counsel during his

submission. Mr. Sawchuk submitted that one month incarceration was appropriate having regard for totality and the absence of any such related conviction on Mr. Henderson's record. [ 28 ] The court is also persuaded that the comments made by Steel, J.A.'s R. v. Draper 2010 MBCA 35 , supports Mr. Sawchuk's argument of "diminished responsibility" and are therefore relevant to the issue of the accused's moral culpability for these offences. As stated (at para. 24) by Steel, J.A.: "...[t]he accused's actions cannot be excused even though they were driven by addiction.

However, one cannot except the reality that the degree of moral blameworthiness is not on par with an offender whose robberies are driven solely by greed. A drug addiction is not an excuse, but it is a fact to be taken into account and weighed along with many other factors in sentencing. As indicated in R. v.

Priest (1996), 930 O.A.C. 163 factors which may accentuate the gravity of the crime cannot blind the judge to factors mitigating personal responsibility." [ 29 ] In the Gladue context of our case it is also noteworthy that Beard, J.A. in Smoke (at para.39) states the following in reference to Steel, J.A.’s above quoted dicta : "While Steel, J.A. was speaking of an addiction, these comments apply equally to other circumstances such as those of Aboriginal offenders." [ 30 ] Beard, J.A.'s observation is clearly supportive of Mr. Sawchuk's Gladue submission on behalf of Mr. Henderson.

It makes the same point. [ 31 ] The court found the defence's reliance on the R. v. Britten case very interesting; as it had recently been referred to this caselaw by another counsel in a similar case context. However that counsel was a Crown prosecutor not a defence lawyer. The case I am referring to is R . v. Grozelle . The facts of Britten are not dissimilar to those before me. That accused pled guilty to dangerous driving (see para. 19 infra for details), possession of a stolen motor vehicle and driving while disqualified.

He'd committed the offences because of a drug addiction and his criminal record included convictions for possession of stolen property, flight from police and assault. The Judge in Britten , a British Columbia Supreme Court Judge, sentenced the accused to 18 months for dangerous driving, 18 months for possession of the stolen vehicle to be served concurrently, and 12 months for driving while disqualified to be served consecutively. [ 32 ] I am of the view that Britten is a much more appropriate comparable than either Teed or C. (I.J.W.), the two Crown cases presented to the court.

I have averred to this earlier in my decision. That having been said, I note that the sentence in relation to dangerous driving in C. (I.J.W.) was two years consecutive, very close to the length of such sentence in Britten .

I also agree with defence counsel that the Gibson decision of Lyon, J.A. certainly suggests that Britten was properly decided given the one year sentence imposed in respect to the egregious dangerous driving presented by that case. [ 33 ] Considering all of the factors and principles outlined in the sentencing provisions of the Criminal Code and having regard to the fundamental purpose and principles so set out, as well as the aggravating and mitigating circumstances stated alone and giving the accused special consideration as an Aboriginal person, he is sentenced as follows: • Drive impaired..................................................... 1 month • Assault Peace Officer........................................... 5 months, consecutive • Leave scene of accident........................................ 3 months, consecutive • Drive dangerous.................................................. 17 months, consecutive • Theft of motor vehicle......................................... 9 months, consecutive • Total.................................................................... 35 months [ 34 ] Consideration of the principle of totality and the taking of the "last look" necessitates an examination of the gravity of the offences, the offender's degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victims (see para. 73 R. v.

James, 2013 MBCA 14 ). In this case the accused's degree of moral blameworthiness is, as has been previously discussed, somewhat reduced by his personal circumstances. As well, the harm done to the victims was fortunately at the lower end of the scale. Accordingly I reduce his total sentence by four months, making it 31 months in length.

The court will pronounce the "go forward" sentence at the time of actual sentencing, in order that the time in custody component, which counsel have agreed should be 1.5 to 1 can be properly calculated. [ 35 ] The court also makes a secondary DNA order and imposes a three year driving prohibition commencing after his release from custody. The court also imposes a

section 110 five year weapons prohibition. [ 36 ] As suggested by the Crown, I waive all victim surcharges and cost levies.

______“Original signed by”______ B. Corrin, PCJ