R. v. Chartrand, 2015 MBCA 2

Citation: R. v. Chartrand, 2015 MBCA 2 Date: 20150107 Docket: AR14-30-08122 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton BETWEEN : HER MAJESTY THE QUEEN ) M. S. Bright ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) DAVID STEVEN CHARTRAND ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 7, 2015 STEEL J.A. (for the Court): [ 1 ] This is an appeal as to conviction and sentence on a charge of assault causing bodily harm.

The accused was sentenced to nine months’ incarceration and two years’ supervised probation to follow. [ 2 ] The accused was involved in an assault with several other individuals arising from a drunken brawl that occurred at the Northern Hotel. The accused argues that the verdict of the trial judge was unreasonable and unsupported by the evidence and the trial judge’s reasons were insufficient. [ 3 ] While there was viva voce evidence at trial, the evidence relied on by the trial judge to come to his conclusion was primarily the videotape of the assault.

The accused submits that the inferences drawn by the trial judge based on a viewing of the videotape were not reasonable and were not adequately explained in his reasons. [ 4 ] The test for appellate intervention on the basis of an unreasonable verdict is whether, on the whole of the evidence, the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. The standard of review with respect to reasons for decision is a standard of adequacy. See R. v.

Flores (R.B.) , 2013 MBCA 4 at paras. 19 , 21, 288 Man.R. (2d) 173. [ 5 ] We do not agree with the submissions of the accused. Based on a viewing of the videotape, the trial judge made certain findings of fact including ( 2013 MBQB 264 at paras. 89 , 97): .... With respect to the accused Chartrand, I am satisfied from my viewing of the video recording that he participated in the assault. He was as responsible as the accused Quentin Spence in initially confronting [the victim] and throwing him to the floor.

Although the accused Chartrand may not actually have hit [the victim] while he was lying on the floor, he certainly provided support to the other two accused while they viciously beat [the victim]. Clearly, he was a party to the assault because he actively participated in it. I reject the argument that he was attempting to pull the accused Quentin Spence off of [the victim]. [ 6 ] The above statements indicate that the trial judge was aware of the accused’s argument that he was attempting to pull Quentin Spence off of the victim, but rejected it.

He assessed the accused’s involvement in the assault based on his own review of the videotape. He concluded that although the accused may not have actually struck the victim while he was on the floor, he provided support to the other two accused while they beat the victim and he was involved in pulling the victim to the floor at the beginning of the

assault. [7] Those are findings of fact which should not be interfered with unless there is no evidence to support them or amisapprehension of evidence. There was evidence which supported the trial judge’s findings i.e., the videotape of the assault itself. Moreover, in the context of the evidence and submissions of counsel, the trial judge’s reasons were sufficient. We see no grounds forappellate intervention. [8] We take a different view with respect to the appeal as to sentence. We believe that the trial judge did not giveadequate consideration to s. 718.2(

e) of the Criminal Code and the factors discussed by the Supreme Court of Canada in the cases of R.v. Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and that heoveremphasized the factors of denunciation and deterrence. [9] The trial judge held that, of the individuals who participated in the assault, this accused was the least involved.

Whilehe helped bring down the victim to the floor initially and provided support as a party to the assault while the victim was on the floor,unlike the other accused, he did not kick or hit the victim. [10] The accused has no previous record for violence whatsoever and has had no criminal involvement for over six years. He is co-parenting a child. He has a positive reference from his former employer and a relatively positive pre-sentence report.

He hasbeen accepted into a program to upgrade his skills and education which starts next month. [11] He has already served approximately five months of his sentence from the time of sentencing on January 22, 2014, tothe time of his release on judicial interim release on June 26, 2014. The Crown conceded during oral submissions that it would serve nopurpose to return the accused to jail at this point in time, and we agree. This may be considered to be tinkering, but it is tinkering whichwill allow the accused to start his educational program next month and continue his efforts to turn his life around.

In our view, this is inkeeping with the principles articulated in Gladue and Ipeelee. [12] The appeal as to conviction is dismissed. The appeal as to sentence is allowed. The sentence is varied to five months,being the time already served. The portion of the sentence related to the two years’ supervised probation will remain. J.A. J.A. J.A.