R v Roulette, 2015 MBCA 102

Citation: R v Roulette, 2015 MBCA 102 Date: 20151020 Docket: AR14-30-08307 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) I. L. Singh ) for the Appellant Respondent ) ) C. T. St.

Croix- and - ) for the Respondent ) KELSEY BRANDY ROULETTE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 20, 2015 MAINELLA JA (for the Court): [1] The accused appeals her convictions for attempting to obstruct justice and failing to comply with a direction in adetention order, as well as the resulting concurrent sentences of one year imprisonment to be followed by one year of probation. [2] The offences arise from a failed romantic relationship. The accused was arrested for a domestic incident and deniedjudicial interim release.

As part of her detention order the accused was directed pursuant to section 515(12) of the Criminal Code toabstain from any communication with the complainant. [3] Inmates on remand have telephone privileges. However, they have no access to the Internet. Notwithstanding, severalweeks after the detention order, the complainant received what is purported to be three messages from the accused through the socialmedia website Facebook. The listed sender in the header of the messages was a close personal friend of the accused (A.S.), but in thebody of the first message the author self-identified herself as the accused.

One way the accused could have authored the messages wasby contacting A.S. through the accused’s telephone privileges and enlisting her to send the messages on the accused’s behalf. Themessages contained personal information about the accused and the complainant, and a request that the complainant not testify againstthe accused. [4] The only disputed issue at the trial was the identity of the true author of the messages. The accused did not testify. The issue on the conviction appeal is whether the verdicts are reasonable given the circumstantial evidence as to the identity of theauthor of the messages.

The accused says the evidence allowed for alternative inferences to guilt, namely, that A.S. was the true authoror that A.S. had sent the messages for an unknown party. The judge called this impersonation argument “speculation.” [5] While the judge’s reasons are terse, when read in the context of the entire record they are adequate. Determining theeffect of evidence is an exercise of common sense, logic and experience.

When the evidence as a whole is re-examined, to some extentreweighed, and its effect is considered, we are satisfied that the content of the electronic messages was so sufficiently unique that theonly rational inference here was that the accused was the true author of the messages (R v RP, 2012 SCC 22 at para 9, [2012] 1 SCR746; R v Griffin, 2009 SCC 28 at para 33, [2009] 2 SCR 42; and R v MacLeod (JM) et al, 2013 MBCA 48 at para 26, 294 ManR (2d)90).

The impersonation defence of the accused was not grounded in the evidence and amounted to conjecture. [6] The issue on the sentence appeal is whether, in assessing moral blameworthiness, the judge properly took intoconsideration Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688) including that the accused was a 21-year-oldAboriginal offender with an intellectual disability due to alcohol-related neurodevelopmental disorder (ARND). [7] While a mental illness, or intellectual disability such as ARND, is a relevant factor to be taken into consideration indetermining sentence, it does not necessarily diminish an offender’s moral blameworthiness or justify a lower sentence (R v JB, 2013

NLCA 61 at para 35 , 341 Nfld & PEIR 329; R v MJH , 2004 SKCA 171 at para 29 , 257 SaskR 1; and R v Manitowabi (D) , 2014 ONCA 301 at para 64 , 318 OAC 174). [ 8 ] Here, it is not disputed that the extent of the accused’s intellectual disability does not acutely inhibit her from being able to function in society or be law-abiding. More germane is that no nexus can be drawn between her intellectual disability and her degree of responsibility for the purposes of

section 718.1 of the Criminal Code . Her conduct was not impulsive. Her scheming displayed a high degree of moral blameworthiness that was not the product of the accused’s intellectual disability. Despite the non- communication direction, the accused enlisted A.S. to assist her to perpetrate the crime.

Finally, in the electronic messages the accused attempted to manipulate the complainant by playing on sympathy over the accused’s ailing mother. [ 9 ] Attempting to obstruct the course of justice by dissuading a witness from testifying is a serious matter striking at the integrity of the justice system that must be denounced and deterred through a meaningful prison term ( R v Hall (JE) , 2001 BCCA 74 at para 12 , 150 BCAC 313).

We are satisfied that in imposing the sentence the judge did not err in principle and properly took into consideration the pertinent sentencing factors, including the relevant Gladue factors such as the accused’s ARND. Moreover, a one-year sentence for what amounts to witness tampering without a threat, while towards the high end of the range, cannot be said to be demonstrably unfit given the accused’s complete disregard of the judge’s direction not to communicate with the complainant. [ 10 ] In the result, while leave to appeal sentence is granted, the appeal as to both conviction and sentence is dismissed.

JA JA JA