2017 MBPC 22, 2017 MBPC 22

Citation No. 2017 MBPC 22 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Carla Dewar, Libby Standil and David Ireland, ) for the Manitoba Department of Justice ) ) and ) ) Richard Smith and Hugh Crawley, ) for the Federal Crown ) - and - ) ) Bradley Maytwayashing ) Jeremy Kostiuk, ) for the Accused ) ) ) Judgment delivered: ) May 9, 2017 CORRIN, P.J.

INTRODUCTION [ 1 ] Bradley Maytwayashing (B.M.) was found guilty of the following offences after trial: • Aggravated assault ( section 268(2) of the Criminal Code ); • Possession of a weapon for a dangerous purpose ( section 88(2) of the Criminal Code ); • Pointing a firearm ( section 87(1) of the Criminal Code ). This charge was subsequently granted a Kienapple stay by the Crown; • Discharging a firearm with intent to injure (

section 244 of the Criminal Code ); • Unauthorized possession of a firearm in a motor vehicle (

section 94 of the Criminal Code ); • Possession of a firearm without a license ( section 92(1) (

a) of the Criminal Code ); • Possession of a firearm while prohibited by court order (

section 117.01(1) of the Criminal Code ); • Possession of firearm ammunition while prohibited by court order (

section 117.01(1) of the Criminal Code ). This charge was stayed by the Crown after conviction because it somewhat duplicated the other

section 117.01(1) conviction; and • Possession of an illegal drug to wit marijuana (section 4(1) of the CDSA ). ISSUE [ 2 ] The sole issue for determination is the length of the jail term for the accused. CIRCUMSTANCES OF THE OFFENCE [ 3 ] The Court found that the accused had attended the victim’s residence with a .22 calibre rifle and that the two men had had a sometimes loud exchange of words during their lengthy discussion, which took place in the front yard. A witness recollected hearing references to “weed” at such time.

The accused had then fired several shots into the ground and after that shot the victim once in the leg. The accused then helped put a cloth tourniquet on the victim’s leg to staunch the flow of blood and later, after seemingly searching the interior of the residence, had emerged with a fairly large bag of marijuana which was later determined to have a street value of between $2200.00 and $4600.00. The victim subsequently recovered from the gunshot injury without long-term effects. VICTIM IMPACT

[4] There was no victim impact statement filed in relation to this matter. POSITION OF COUNSEL [5] The Crown represented by Ms. Standil recommended a 10 year sentence, 9 years on the discharge of firearm with intent and 7to 9 years concurrent on the aggravated assault offences. She also asked for a one year sentence with respect to the prohibition breach,consecutive to the other sentences aforementioned.

All other offences were to be treated as concurrent to these three sentences. [6] Defence recommended a maximum global sentence of 5 ½ years; a 4 ½ year concurrent sentence for the aggravated assaultand discharge of a firearm with intent charge plus a further 6 to 12 months consecutive for the possession of a firearm contrary to theprohibition order.

He essentially agreed with the Crown that the other charges should attract significantly lesser concurrent sentences.Defence also observed that his recommendation, because it allowed the court to impose a provincial incarcetory sentence, would permitthe court to include a three year maximum term of probation supervision following the accused’s release from custody, something thatwould address the Crown’s concern for community safety. CRIMINAL RECORD OF THE ACCUSED [7] Same is attached as an appendix hereto and was filed as an exhibit at the sentencing hearing.

CIRCUMSTANCES OF THE ACCUSED/GLADUE FACTORS [8] A Gladue-style pre-sentence report (PSR) was prepared by probation officer Tyler Phill and filed with the court in reference tothis subject matter. It records interviews with eight of the accused’s family members and close friends as well as the accused himself andMs. Kirby Marion, a Headingley Correctional Centre officer who advised that Mr. Maytwayashing has displayed “polite and non- aggressive” behaviour toward her and other staff members while on remand at the facility since June 15th, 2016. [9]

Section 718.2(

e) of the Code requires sentencing judges to pay “particular attention to the circumstances of aboriginaloffenders”. The Supreme Court of Canada first articulated the full meaning of this phrase in the 1999 landmark Gladue decision. A fewyears later it expanded on those concepts in R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 2007, and then reiterated and reaffirmedthe concepts in Ipeelee in 2012. In that case, the Court was sensitive to, and addressed, criticisms of its decision in Gladue. It amplifiedand clarified a number of key points: 59 …

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders becausethose circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing anAboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing theparticular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate inthe circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para.66).

Judges maytake judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specificinformation will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84). . . . 72 … The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginaloffender which could reasonably and justifiably impact on the sentence imposed. . . . 73 … systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness. … Canadian criminal law is based on the premise that criminal liability only follows from voluntaryconduct.

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities andlimited options for positive development.

While this rarely – if ever – attains a level where one could properly say that their actions werenot voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability. … Failing to take these circumstances into account would violate the fundamental principle of sentencing – that thesentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The existence of suchcircumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be moreappropriate than one only aimed at punishment per se. … . . . 75

Section 718.2(

e) does not create a race-based discount on sentencing. … . . . 83 … Systemic and background factors do not operate as an excuse or justification for the criminal conduct.

Rather, they providethe necessary context to enable a judge to determine an appropriate sentence. … . . . 85 Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter forsimilar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universalapplication. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.

[emphasis added] [ 10 ] I am therefore required to assess Mr. Maytwayashing’s unique Aboriginal circumstances and background in determining his level of moral blameworthiness for these offences and, consequently, a fit and appropriate sentence for him for this offence. [ 11 ] Mr. Maytwayashing is 43 years old. His first criminal conviction occurred at 15 years of age, in 1988, as a youth. As an adult, since 1992, he has been convicted for numerous offences, including crimes of violence and several offences stemming from non- compliance with judicial orders.

These offences include assault with a weapon, assaults causing bodily harm, robbery and several firearm offences. Corrections Service of Canada reports confirm that he became gang involved when he was incarcerated at Stony Mountain Penitentiary in the 1990’s. A 1996 report indicates that his “unstable family life resulted in emotional problems” and that “a lack of educational/vocational training” were perceived to have created “a strong criminal value orientation”. He has served three federal sentences to date and has escaped from custody on the first such occasion.

According to the accused he did so because he had been held in segregation for six months. [ 12 ] A Correctional Service report from 1998, authored during his second federal sentence, reveals that he was sexually abused as a child and that such abuse had affected his life and caused him to suffer depression, which has led him to turn towards substance abuse. Another report, from 1999, indicates that Mr. Maytwayashing’s “childhood was fraught with abandonment, neglect, and various forms of abuse including both physical and emotional”. The report discloses that Mr.

Maytwayashing had related that he had “put it (the abuse) in a ball and vented it: beat up other people… that while he was passive early on in his life, (that) by the age of nine/ten he (had) begun to take his anger out on other kids”. A criminally involved uncle introduced him to illegal drugs when he was 11 or 12 years old, the same year that he was recruited by an Aboriginal gang. The accused regards the gang as a major component of his life as a teenager. He reported being closer to the gang than his own family during this stage. Mr.

Maytwayashing was perceived as identifying some insight into the factors that surrounded his criminal offending but lacking in ability to manage the factors in his life which placed him at risk to re-offend. The longest period Mr. Maytwayashing has spent in the community since his first adult sentence is approximately six months. Probation file information indicates that the accused has been released from various forms of custody approximately nine times since January 2011 and that his longest period in the community since 2011 has been approximately six months.

The accused shared that he considers himself to be institutionalized at this point in his life, that he is “used to having a routine and daily tasks” in an incarcetory setting. [ 13 ] Mr. Maytwayashing is one of 14 siblings, only one of whom was also born to both his parents. As a child he resided for the most

part in Winnipeg with his mother. His father resided on Lake Manitoba Reserve, a couple of hours by car from Winnipeg. He seldom saw his father until he returned to live on the reserve as a teenager. He was apprehended by Child and Family Services (CFS) workers when he was in the second grade and later, after being returned to his mother, often went to reside with his grandmother in Lake Manitoba to avoid abuse and being placed in foster care again.

His mother confirmed that the accused had been exposed to a lot of domestic violence while living with her in his early pre-teen years and according to her no longer wanted to live in her home after turning fourteen. The accused recollected that he had been placed in a Winnipeg group home at around 15 and became involved in numerous physical altercations with staff and fellow residents, causing him to be returned to the Lake Manitoba reserve by CFS authorities.

The subject estimates that because of frequent relocation and regular drug use he had no interest in education and consequently dropped out of school in grade nine. His longest period of employment thereafter, as a roofer, was for six months. He admits that most of his employment income has been spent on illicit drugs. His other employment has included dry walling, landscaping work, road construction and carpentry with Lake Manitoba First Nation. He disclosed that he wants to secure employment in the construction field in the future. Mr. Phill relates that a person who Mr.

Maytwayashing was supervised by several years ago described him as being a “really good” worker and someone that he would assist in securing employment for after his release from jail. A Lake Manitoba band council member confirmed that the accused had indeed worked for the reserve intermittently over a period of several years from 2012 to 2015 and had been a “good worker” who hadn’t presented any concerning behaviour. The councillor confirmed that he would be hired again after his release. [ 14 ] Family members and friends virtually all agree that Mr. Maytwayashing struggles with substance abuse.

The accused concurs, contending that he has avoided everything except marijuana and alcohol since 2012. He told Mr. Phill that he regarded alcohol as being his most significant risk factor to reoffend in the future. Family and friends expressed concern about his propensity towards violence when under the influence of alcohol.

There was compelling evidence relating to the accused being under the influence at the time of the incident, evidence which appears corroborative of such a propensity. [ 15 ] Despite his criminal history and personal reliance on substances, which seem to have begun as early coping strategies, several family members and friends describe Mr. Maytwayashing as a caring and empathetic individual in relation to themselves and others he has befriended in his community. They describe him, somewhat paradoxically, as a kind hearted father figure, a “good guy”, a caring parent and a loyal friend.

He is related to have a strong connection with his mother, step-father, his two year old son and one sister. He was apparently his infant son’s primary caregiver prior to this incident. [ 16 ] I agree with accused’s counsel that Mr. Maytwayashing’s continuing criminal behaviour, going back to his early youth, and this type of seemingly rage or anger fuelled assault is of least partially a result of his harsh and unstable childhood and malformative teen years. Indeed, I have little doubt that Mr.

Maytwayashing, if he had the benefit of a stable, nurturing family with positive role modelling would likely not have become an anti-social and criminally oriented person at all. Tragically, the norms, values and role models that surrounded him were most often quite negative, leading him to a perverse acculturation that involved coping strategies such as surrogate family affiliation i.e. gang involvement, substance abuse and emotional detachment. He has basically been coping with minimal support of family, community and Canadian society since early childhood.

To quote from the PSR – “The effects of colonization and residential school(

s) have haunted the subject throughout his life.” [ 17 ] I now turn to the aggravating circumstances of the offences. I note the following in particular reference to the employment of the weapon, a firearm, in the perpetration of the aggravated assault:

a) the use of a firearm per se;

b) the fact that the employment of a firearm essentially made the victim defenceless in the sense that it created a situation wherefighting back or running away were not viable options;

c) the accused knew that he was under court orders not to possess guns;

d) as seen by the mandatory minimum sentence imposed by Parliament, the firing with intent to injure of a loaded firearm is a veryserious offence;

e) in 2007 he was convicted of a similar offence while prohibited involving the firing of a sawed off shotgun in a crowded bar after hehad been earlier ejected therefrom by security personnel after a physical altercation with same. As such the court concludes that theaccused has demonstrated a propensity to use firearms as well as ignore court orders not to possess same. [18] As mitigating circumstances, I note the following:

a) the Gladue factors and his general background which are intertwined, somewhat mitigate his moral blameworthiness insofar as theyprovide some insight and context for his addiction to drugs and general anti-social lifestyle and his propensity for violence. The Courtemphasizes however, that none of this ‘excuses’ what he did, it just explains his underlying drivers to some extent.

b) the accused made efforts to assist the victim of the shooting by helping to apply a tourniquet to his leg after he had been guided tothe victim’s drug cache. [19] I agree with both counsel that given his prior convictions, both related and otherwise, Mr. Maytwayashing is disentitled by lawto any degree of leniency that might have been afforded to him. Given his risk to reoffend, the violent circumstances surrounding thesecharges and his propensities that I have described, I view Mr.

Maytwayashing as a significant danger to the community, something whichwas forcefully argued by Crown counsel in her submissions to sentence. [20] Taking all the foregoing into consideration, I find that the primary principles of sentencing in reference to this case and accusedmake general and specific deterrence a paramount consideration of sentencing. While I acknowledge that rehabilitation is also a factor, itis therefore, in my view, secondary to these other factors. [21] THE LAW A. Legislation (

i) Legal Parameters and Mandatory Orders Pursuant to section 244(2)(

b) of the Criminal Code, because the accused employed a .22 calibre rifle, which is not a prohibited orrestricted weapon, the mandatory minimum sentence is four years to a maximum term not exceeding 14 years imprisonment. In addition,

section 268 (aggravated assault) is a primary designated offence for a DNA order under

section 487.04 of the Criminal Codeand a mandatory firearms lifetime prohibition is required under

section 109 of the Criminal Code because the offender has beenpreviously convicted of crimes of violence and made subject to

section 109 weapons prohibition. (ii) The Principles of Sentencing Newfoundland and Labrador Provincial Judge Wayne Gorman provided the following excellent synopsis of the relevant principles to bekept in mind by a sentencing judge in R. v. Dobbin, . In R. v. Knott, 2012 SCC 42 , it was held that “the purpose and principles of sentencing set out in the Criminal Code are meantto take into account the correctional imperative of sentence individualization.” In R. v. Pham, 2013 SCC 15 , the Court notedthat it “has repeatedly emphasized the value of individualization in sentencing.”

Section 718 of the Criminal Code states that the fundamental purpose of sentencing “is to contribute…to respect for the law and themaintenance of a just, peaceful, and safe society.” This is to be achieved by imposing sentences which have, among other objectives, theobjectives of: • separating offenders from society, where necessary; • denouncing unlawful conduct; • general deterrence; • rehabilitation; and • the promoting of a “sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.”

Section 718.2(

b) of the Criminal Code states that “a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances.”

Section 718.1 of the Criminal Code states that any sentence imposed must be “proportionate to the gravity of the offence and the degreeof responsibility of the offender”. In R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at paragraphs 40 to 42, the Courtconsidered

section 718.1 of the Criminal Code and indicated that “the principle of proportionality is central to the sentencing process”. InR. v. Ipeelee, 2012 SCC 13 , the Supreme Court of Canada indicated that the “fundamental principle of sentencing is that thesentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.”

Section 718.2(

a) of the Criminal Code indicates that a “sentence should be increased or reduced to account for any relevant aggravatingor mitigating circumstances relating to the offence or the offender”. In R. v. Briand, 2010 NLCA 67 , [2010] N.J. No. 339(C.A.), the Newfoundland Court of Appeal stressed the importance of considering an offender’s personal circumstances in applyingsection 718.2(

a) of the Criminal Code.

Section 718.2(

d) states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in thecircumstances” and

section 718.2(

e) states that “all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” In Pham, the Supreme Court of Canada summarized the principles of sentencing set out in the Criminal Code in the following manner (atparagraphs 8 to 10): In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform thesentencing process.

This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at paragraph 39; R. v.Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, at paragraph 21; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, atparagraph 92. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevantaggravating or mitigating circumstances (s. 718.2(

a) of the Criminal Code), as well as objective and subjective factors related to theoffender’s personal circumstances. As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offendersfor similar offences committed in similar circumstances (s. 718.2(

b) of the Criminal Code). In other words, “if the personalcircumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing, (8th ed. 2012) at 2.41). Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respectfor the law and maintenance of a just, peaceful and safe society.

The sentence must have one or more of the objectives of denunciation,general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done tothem, promotion of a sense of responsibility in offenders and acknowledgement of the harm done to the victims and to the community (s.718 of the Criminal Code). B. Case Law [22] Before balancing all of these factors to determine a fit and appropriate sentence, I must also consider sentences that other similaroffenders have received in similar circumstances.

It is important to note though, that while precedents may provide guidance or maydemonstrate a range of sentence usually given for this type of offence, that they are not binding and should not be blindly followedbecause each case must be adjudicated on the unique particular factors related to both the offence and the individual offender. [23] Relevant cases from Manitoba and across the country, including some of the cases tendered by Crown and defence aresummarized as follows: 1. R. v. Ivanic, 2011 BCCA 158 A 22 year old armed accused went to buy $2500.00 worth of cocaine from a fellow who attempted to rob him.

The robbery attempt wasrepelled and the robber surrendered to the accused. The accused shot the robber/victim twice in his arm after he’d surrendered. Theaccused was convicted at trial of, among other firearm and drug related offences, aggravated assault, which has no minimum sentenceand discharging a firearm with intent to wound, which carries a four year minimum sentence. Ivanic had a prior conviction for drugtrafficking for which he had received a 15 month conditional sentence order (CSO) plus a mandatory 10 year firearms prohibition. Theseoffences occurred shortly after he received the CSO.

Mr Ivanic’s sentence was six years on the discharging firearm with intent count andsix years concurrent on the aggravated assault. 2. R. v. Walker-King, 2011 ONSC 4307 A 20 year old accused who was subject to a firearm prohibition went to the complainant’s house while wearing a mask and shot him inthe abdomen. The victim was a drug dealer. The accused was convicted of aggravated assault and discharging a firearm with intent towound as well as a number of other firearm related offences. His sentence was eight years for the aggravated assault, and seven yearsconcurrent for the discharging firearm count.

His total sentence was nine and a half years. He had a youth record which included tworobbery convictions. The victim’s wife witnessed the shooting first-hand and the victim suffered long-term nerve damage. 3. R. v. Hassan, 2009 Carswell Ont. 985 (ONCJ) The accused and the complainant had a minor altercation while playing basketball. The accused later shot at the complainant’s car and abullet struck him in the chest causing serious injuries. The accused was sentenced to seven years on aggravated assault and shooting withintent offences. 4. R. v.

Hassan, 2012 BCCA 201 A victim who was shot in the leg outside a night club after a verbal altercation suffered significant and long-lasting effects from hisinjuries. The nature of the shooting suggested that there was a high risk that someone could have been killed by the shooting. Theaccused was on bail at the time of the offence and was not to possess any weapons. He had no prior convictions. Defence counsel arguedand the Court agreed, that the accused’s judgment had been affected by his level of intoxication and that he was remorseful for what hehad done.

The accused had pled guilty to the charges before the court. Two of the counts, including a

section 244.2(3) count, carried fiveyear minimum sentences. The 33 year old accused’s sentence of seven years on the discharge of firearm count was perceived as beingwithin the general range by the appellate court.

5. R. v. Kryzyworaczka, 2006 Carswell Ont 101 The accused unsuccessfully appealed a five year global sentence for shooting his girlfriend while on prohibition from possessingfirearms. The sentencing judge assessed the shooting count to be in the “five to six year range” because he perceived the accused’ssaving the victim’s life as a factor mitigating in favour of the lower range of available sentence. The upper end of such range wasdescribed as being eight to ten years in a case where the conduct was intentional, as opposed to impulsive and where there was a relatedcriminal record and serious injuries. 6. R. v.

Colligan, 2015 Carswell B.C. 2514 (BCSC) The accused and two associates visited the complainant’s home. The accused demanded that the complainant buy his marijuana andwhen the complainant refused, the accused threatened to take his marijuana and money. A struggle ensued in which the accused struckthe complainant in the face with a gun. The accused then pointed the gun at the complainant’s face. The complainant knocked theaccused’s hand down, and the gun discharged into the complainant’s knee.

The accused was convicted of aggravated assault, unlawfullydischarging a firearm, using a firearm to commit extortion and breach of a probation order. The accused sought a sentence of five yearsimprisonment, the Crown sought six to eight years. The accused was sentenced to seven years imprisonment for aggravated assault,concurrent with seven years for discharging firearm, seven years for using firearm to commit extortion and six months for breach ofprobation. The accused had been on probation at the time of the offences and had a prior offence of causing bodily harm.

The accusedhad complied with stringent terms of his bail release and had strong support from his family and employer. The accused provided bothfinancial and emotional support to his family. The sentencing judge determined that the sentence had to be more than mandatoryminimum of four years given that the aggravating factors far outweighed the mitigating factors. Deterrence and denunciation were statedto be primary factors where offences involved guns, drugs, and invasion of complainant’s home. 7. R. v.

Murphy, 2016 ONCJ 67 The accused, a person with a significant history of violence, who was at the time on probation for a violent offence (assault) with a termthat he not possess any weapons, fired two shots at the victim. One shot struck him in the face. The incident was related to the accusedtrying to determine the whereabouts of a missing cell phone. Mr. Murphy claimed he had no intent to harm the victim and pled guilty toaggravated assault, possession of a loaded prohibited firearm, possession of a firearm without a licence, failure to comply with arecognizance and reckless intentional discharge of a firearm.

The judge found numerous aggravating factors, including his significanthistory of violence, the fact he was on prohibition and not to possess any weapon, that the accused was on bail release at the time andordered by recognizance not to possess weapons, the serious injuries suffered by the victim and the fact that the incident occurred incircumstances where innocent bystanders could have been injured or even killed. The judge imposed the minimum mandatory five yearson the intentional discharge count and a consecutive sentence of four years on the aggravated assault count.

The total global sentence,inclusive of all the counts, was nine years. 8. R. v. Cook,

(2015) BCSC 1279 The defence felt that this case offered many parallels to the case at bar although the injuries suffered by the victim were significantlymore serious than those suffered in our case, because the aggravated assault was in reference to a drug theft, and Mr. Cook also had asignificant criminal history. Like Mr. Maytwayashing, the accused Cook also had serious long-term substance abuse issues and a lengthyrecord for violent behaviour. Cook was sentenced to four and one half years on an aggravated assault conviction.

THE SENTENCE − Aggravated assault… a sentence of six years is imposed; − Unlawful discharge of a firearm with intent… a sentence of five years concurrent is imposed; − Possession of a weapon contrary to a prohibition order… a one year consecutive sentence is imposed; − Possession of a weapon for a dangerous purpose… a six month concurrent sentence is imposed; − Unauthorized possession of a firearm in a motor vehicle… a six month concurrent sentence is imposed; − Possession of a firearm without a license… a six month concurrent sentence is imposed; − Possession of marijuana… a one month concurrent sentence is imposed. [24] Having determined the fit and appropriate sentence and employed a sentencing approach which resulted in a consecutivesentence I must look at the totality of the seven year sentence to determine whether it is so high as to be a “crushing penalty” on Mr.Maytwayashing.

Considering his background and Gladue factors and the significant jump of this sentence compared to his longestprevious sentence of incarceration, I find that it would be unduly harsh to leave the sentence at seven years. Rather, I find that a totalsentence of six years is appropriate. I therefore reduce the aggravated assault sentence to five years. [25] What remains at this point is a determination of the amount of credit Mr. Maytwayashing is entitled to for his pre-sentencecustody.

The Crown took the position that only 1:1 credit should be accorded. [26] The Manitoba Court of Appeal summed up the law respecting this issue in R. v. Roulette, 2005 MBCA 149 , 201Man.R. (2d) 148, saying at paragraph 7 and 8: 7. In the normal situation however, the accused will not only be given credit for pre-sentence time, but the credit will be enlargedto take into account two factors:

(1) most sentenced prisoners are entitled to remission of their sentence in accordance with the mechanisms contained in theCorrections and Conditional Release Act, S.C. 1992, c. 20, whereas no remission is allowed with respect to pre-sentence custody; and (2) pre-sentence incarceration is often served in harsher circumstances and with fewer opportunities to take steps towardsrehabilitation. 8. In the case of R. v.

Vermette (I.M.) (2001), 156 Man.R. (2d) 120, 2001 MBCA 64 , Steel J.A., writing for a unanimouscourt, explains how a variation of these factors can lead to a reduction of the pre-sentence credit (at paragraph 66): There have been many cases where credit for pre-sentencing custody has been denied or given on a ratio less than 2:1. For example,where the offenders did in fact receive a full range of educational, vocational or rehabilitation programs, less than double time credit wasgiven….

Alternatively, where the previous incarceration history suggests that the accused person would be unlikely to obtain earlyrelease, the individual was in custody because he repeatedly breached the conditions of his release or the accused is seen to pose aserious danger to society, courts have either departed from the standard 2:1 ratio or denied credit for pre-sentence custody altogether… [27] Consistent with other courts, including the Supreme Court of Canada (R. v.

Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455),the Court of Appeal observed that the “rule of thumb” was to apply credit of 2:1, but that ultimately, the amount of pre-sentence custodycredit granted to an accused is within the discretion of the sentencing judge as part of determining a fit and appropriate sentence. [28] Mr. Maytwayashing has been reported to be a cooperative if not a model prisoner while being held at the HeadingleyCorrectional Centre. Under all the circumstances I have decided that a credit multiple of 1.5:1 is therefore appropriate for his time spentin custody to date.

Such time is to be deducted from the six year sentence. [29] I am also making an order for provision of a DNA sample as well as imposing a mandatory

section 109 lifetime firearmsprohibition. “Original signed by:” CORRIN, P.J.