R. v. Huska, 2014 MBCA 114

Citation: R. v. Huska, 2014 MBCA 114 Date: 20141211 Docket: AR14-30-08233 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN: ) I. N. MacNairHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. D.

Lagimodière ) for the Respondent- and - ) ) Appeal heard andKRYSTAL HUSKA ) Decision pronounced: ) December 5, 2014 (Accused) Appellant ) ) Written reasons: ) December 11, 2014 CAMERON J.A. (for the Court): [1] The accused was sentenced to six months’ incarceration, 18 months’ supervised probation, and a two-year drivingprohibition as a result of her guilty plea to one count of drive impaired cause bodily harm. She has appealed the six-month period ofincarceration. Leave to appeal was granted on September 11, 2014, at which time she was granted judicial interim release pendingappeal.

At the conclusion of the hearing, we dismissed the appeal with short reasons to follow. These are those reasons. [2] After a night of drinking at a bar, the accused and her boyfriend got into an argument following which the accuseddecided to drive home. She lost control of her vehicle which rolled and came to rest on its roof. Both the accused and her girlfriend, whowas a passenger in the vehicle, suffered extensive serious injuries; indeed, the injuries suffered by the accused were life threatening. [3] The circumstances of the offence were both serious and aggravating.

The toxicology analysis of blood samplesobtained from the accused estimated that, at the time of the collision, her blood alcohol reading would have been between 196 and 228milligrams of alcohol per 100 millilitres of blood. The traffic analyst estimated that, just prior to the accident, the accused’s vehicle wastravelling approximately 132 kilometres per hour in an area where the speed limit was 80 kilometres per hour. The accused was drivingerratically and swerving into oncoming traffic.

In fact, just prior to the accident, the girlfriend told the accused to slow down. [4] At the sentencing hearing, the Crown asked for a sentence of incarceration ranging between six and nine months. Theaccused argued that her circumstances were “exceptional” and therefore justified the imposition of a period of supervised probation asopposed to an incarceratory disposition. See R. v. Henderson (J.A.), 2012 MBCA 9, 275 Man.R. (2d) 168. Alternatively, the accusedrequested a sentence that could be served intermittently. [5] A lengthy pre-sentence report containing a comprehensive Gladue component (R. v.

Gladue, (SCC),[1999] 1 S.C.R. 688) addressing the systemic and personal Aboriginal circumstances of the accused was filed at the sentencing hearing. As well, extensive submissions were made by counsel for the accused regarding the significance of s. 718.2(

e) of the Criminal Code (theCode), explaining how the Gladue factors were engaged in this case, and other personal circumstances of the accused. [6] In reaching his conclusion, the sentencing judge held that, in all of the circumstances, the moral blameworthiness ofthe accused was high. In addressing s. 718.2(

e) of the Code and the Gladue factors, he recognized that he was obliged to consider theaccused’s Aboriginal heritage. He reviewed Supreme Court of Canada jurisprudence which underscored some of the significantdisadvantages suffered by Aboriginal offenders. He stated that s. 718.2(

e) of the Code recognizes these factors and the impact they haveon the moral blameworthiness of such an offender. He then stated: In my view, the impact of 718.2 in this case is minimal. [The accused] has not been disadvantaged in the most common ways that I

previously described. In my view, there are not present the constrained circumstances described in the Gladue decision that woulddetract from the moral culpability of [the accused]. [emphasis added] [7] The accused appeals on the basis that the sentencing judge erred in giving minimal weight to the Gladue principles. In support of her argument, she relies on the portion of the reasons given by the sentencing judge reproduced above.

At the hearing ofthe appeal, she argued that the sentencing judge also did not attach the appropriate weight to her other personal factors. [8] The standard of review in a sentence appeal requires that an appellate court not intervene unless there is an error inprinciple, or the sentence is demonstrably unfit. An error in principle includes failing to consider a relevant factor, taking into account anirrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor (see R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; and R. v.

Ruizfuentes (H.S.), 2010 MBCA 90 at para. 7, 258 Man.R. (2d) 220). [9] Recently, in R. v. Smoke, 2014 MBCA 91, this court stated that there need not be a direct causal link between anaccused’s circumstances as an Aboriginal offender and the offence that she committed before considering those circumstances as a factorin the sentencing. Rather, the link may be more indirect and still be relevant.

In that case, the sentencing judge’s view that a directcausal link was required caused him to fail to consider the relevant factor of the Aboriginal circumstances of the accused, therebyresulting in an error in law. [10] Similarly, in this case, if, when the sentencing judge stated that the accused was not subject to the “constrainedcircumstances” as outlined in the jurisprudence, he meant that something akin to “constrained circumstances” was required to engage aconsideration of s. 718.2(

e) of the Code, then that would constitute an error in principle. Indeed, taken alone, that comment mightindicate that the sentencing judge considered that such circumstances were required. [11] However, a review of the totality of the reasons of the sentencing judge shows that he did not, in fact, commit thaterror.

Not only did he review the jurisprudence, but the words he used to commence the paragraph in question indicate that heconsidered the accused’s Aboriginal circumstances and gave them some weight, albeit minimal. [12] When reviewing the reasons of a trial judge, an appellate court must take a functional approach and review the whole ofthe evidence, including the submissions of counsel. See R. v. N.H.P., 2013 MBCA 30 at para. 19. While a court is required to considerand weigh an accused’s Aboriginal circumstances, those circumstances do not require an automatic reduction in sentence.

See R. v.Ipeelee, 2012 SCC 13 at paras. 72-73, [2012] 1 S.C.R. 433. [13] In this case, the issue of the Aboriginal heritage of the accused and her personal circumstances were canvassed in detailin the material filed with, and the submissions made to, the sentencing judge. Moreover, the sentencing judge specifically commentedon some of the disadvantages suffered by the accused, such as the effect of her mother having attended a residential school and that themother was a somewhat emotionally distant parent, who often left the accused alone.

He also noted that the accused was raised in afinancially disadvantaged or “poor” environment. [14] At the end of the day, the sentencing judge afforded the Gladue factors less weight after considering all of theaggravating factors in this case. Specifically, he emphasized:

a) the speed at which the accused was driving and her erratic driving; b)the level of alcohol in the accused’s blood;

c) the fact that the accused was driving on dirt roads to avoid detection; and,

d) that,immediately prior to the accident, the passenger told her to slow down. Further, he considered that the accused had not sought help forher substance abuse problems following the accident despite the significant time that had elapsed between the date of the offence and thedate of her sentencing hearing. As a matter of fact, he found that the accused continued to abuse alcohol and cocaine during this periodof time, despite telling others that she had stopped. [15] In conclusion, the sentencing judge did not commit an error by failing to attach weight to, or consider, s. 718.2(

e) of theCode or the Gladue factors. As this court has stated, where a sentencing judge properly considers Gladue factors, but reasonablydetermines that those factors should not reduce the accused’s moral blameworthiness for the offence, that decision should be treated withdeference (R. v. R.C.H., 2013 MBCA 108 at para. 66, 303 Man.R. (2d) 39). As we are satisfied that the sentencing judge did not commitany errors in principle, there is no basis to intervene. In this case, there is no question that the sentence imposed was within the rangeavailable to the sentencing judge and was not otherwise unfit. [16] Therefore, for all of the above reasons, we dismissed the appeal. J.A. J.A. J.A.