R. v. Flett (L.L.), 2014 MBCA 111

Citation: R. v. Flett (L.L.), 2014 MBCA 111 Date: 20141203 Docket: AR 13-30-08026 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : ) D. M. Sawchuk HER MAJESTY THE QUEEN ) for the Appellant ) ) A. Y. Kotler and Respondent ) N. P.

Steen ) for the Respondent - and - ) ) Appeal heard and LULONDA LYNN FLETT ) Decision pronounced: ) November 26, 2014 ) (Accused) Appellant ) Written reasons: ) December 3, 2014 CAMERON J.A. (for the Court): [ 1 ] The accused applies for leave to appeal and, if granted, appeals her sentence of life imprisonment concurrent for five counts of manslaughter, and six months’ imprisonment concurrent for one count of arson, that was imposed as a result of her entering guilty pleas. At the conclusion of the hearing, we granted leave to appeal but dismissed the appeal with short reasons to follow.

These are those reasons. [ 2 ] In the middle of the night, after telling her boyfriend that she was going to burn down his mother’s home, the accused deliberately set fire to a couch in the porch of a rooming house where the mother resided. This act was in retaliation against her boyfriend’s mother and sister. The accused was angry with the mother for phoning the police on her as a result of a fight she had had with her boyfriend. That phone call resulted in the accused being arrested for an outstanding warrant that had been earlier issued in relation to a charge of assault on the sister.

Of note, at the time she committed this offence, the accused was serving a period of probation in relation to that assault charge. [ 3 ] When she started the fire, the accused had full knowledge that others resided in the rooming house and, given the time of night, they were likely sleeping. Of the eight occupants in the rooming house at the time, five died. One lived, but sustained serious injury.

The intended targets, the mother and sister, escaped. [ 4 ] The accused was 40 years old at the time of the offences and was essentially a first offender, as her prior involvement with the law resulted in a discharge. [ 5 ] At the sentencing hearing, the Crown asked for a sentence of life imprisonment. Defence counsel noted that the accused had already served 655 days in pre-trial detention for which he requested 1.5:1 pre-sentence custody credit. He then suggested that the accused be sentenced to an additional eight to ten years.

Such a calculation would reflect a sentence range of approximately 10.5 to 13.5 years. [ 6 ] As earlier stated, the sentencing judge imposed a term of life imprisonment on the accused.

Under s. 120(2) of the Corrections and Conditional Release Act , an offender serving a life sentence for manslaughter is eligible for full parole after having served seven years, calculated from the date of arrest for the offence. [ 7 ] The overriding issue in this appeal, reflected in the grounds of appeal, is whether the sentencing judge erred in assessing the accused’s level of moral culpability. [ 8 ] The accused’s first ground of appeal is that the sentencing judge failed to properly consider the accused’s intellectual and cognitive challenges in her determination of moral culpability.

[9] In assessing moral culpability in cases of manslaughter, the higher the intention or awareness of the accused that hisor her actions were likely to put the victim(

s) at risk of death, the more culpable he or she is. Indeed, in R. v.

Laberge (K.K.) (1995),1995 ABCA 196 , 165 A.R. 375 (C.A.), the court noted (at para. 14): …. … [E]ven absent proof of subjective mens rea, the more that the offender’s conduct, on an objective basis, approaches the pointwhere it can be said that he ought to have known, had he proceeded reasonably, that his unlawful act would be likely to cause life-threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable he is. …. [emphasis added] There is no question that the objective foreseeability of life-threatening injuries from the actions of the accused is considerable. [10] In this case, the sentencing judge considered the report of Dr.

Somers, filed on behalf of the accused. She alsoconsidered that the accused was intoxicated at the time of the incident. Nonetheless, based on all of the evidence, the sentencing judgefound that, while the accused might not have intended the tragic consequences of her actions, she was able to appreciate the risk ofdanger that could flow from her conduct. She noted that the accused intended to cause some harm to the two women she targeted andthat she was aware that others lived in the rooming house.

She also considered that the accused’s intellectual challenges were not sosevere that they prevented her from functioning in society. She concluded that the accused’s limitations did not significantly lower hermoral culpability, which she found to be on the high end of the spectrum. In our view, this conclusion was available to her on theevidence and is entitled to deference. See R. v. Nasogaluak, 2010 SCC 6 at paras. 43, 46, [2010] 1 S.C.R. 206. [11] Next, the accused contends that the sentencing judge failed to properly consider the Gladue factors (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688) referred to in the Gladue report and counsel’s submissions. We disagree. The sentencing judgeproperly considered the methodology required by s. 718.2(

e) of the Criminal Code (the Code), and took into account the numerousGladue factors applicable to the accused in her final determination. [12] The sentencing judge weighed the systemic factors and the unique factors such as the accused’s lack of education,exposure to violence and alcoholism growing up, and her own substance abuse problem.

However, the sentencing judge found that, inlight of the serious nature of the offences and the circumstances under which they were committed, the principles of denunciation anddeterrence were overriding and that the Gladue factors did not reduce the accused’s moral blameworthiness. [13] In reaching this decision, we are satisfied that the sentencing judge considered the aboriginal circumstances of theaccused and whether they had a tangible effect on her moral blameworthiness, and whether those circumstances should have ultimatelyaffected the sentence imposed.

That decision should be treated with deference, and we have not been convinced that we should interfere. [14] Finally, the accused argues that a life sentence was harsh and excessive. In support of her argument, she refers to caseswhere offenders have received lesser sentences than she did. The Crown refers to cases where offenders have received similar sentences. At the end of the day, the applicable range of sentence included a life sentence in a case such as this, which involved multiple deaths anda state of mind beyond the bare mens rea requirements of manslaughter.

The act of deliberate arson caused significant mental anguish tothe victim who escaped but suffered substantial bodily harm. Furthermore, the repercussions implicate many more than the namedvictims, including, and especially, the families. In our view, the accused has not shown that the sentencing judge departed from therange in a marked or substantial manner and we do not accede to this ground. [15] Thus, while we granted leave to appeal the sentence, we dismissed the appeal. J.A. C.J.M. J.A.