R. v. Cook, 2015 MBCA 27

Citation: R. v. Cook, 2015 MBCA 27 Date: 20150310 Docket: AR14-30-08282 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant ) Respondent ) S. J.

Christie ) for the Respondent- and - ) ) Appeal heard andKYLE RICHARD COOK ) Decision pronounced: ) March 2, 2015 ) (Accused) Appellant ) Written reasons: ) March 10, 2015 CAMERON J.A. (for the Court): [1] The accused appeals his sentence of 16 months’ incarceration less credit of four months’ pre-sentence custody for onecount of possession of cocaine for the purpose of trafficking. He was granted leave to appeal and judicial interim release pending hisappeal. [2] The accused was a street-level dealer involved in a dial-a-deal operation.

At the time of his arrest he was in possession ofeight rocks of crack cocaine and $1,360 in Canadian currency. He was 19 years of age at the time of the incident and 21 years of age atthe time of sentencing. While he had prior criminal involvement, he had not previously been convicted of any drug offences. [3] At the sentencing hearing, the Crown asked for 20 months’ incarceration and defence counsel asked for a 20-monthconditional sentence.

At the hearing of this appeal defence counsel agreed that the length of the sentence imposed was within theappropriate range. [4] The accused appeals on four grounds, three of which are opposed. First, that the sentencing judge failed to properly applythe test for a conditional sentence order. Second, that he placed too much weight on the issues of denunciation and deterrence. Third,that he did not appropriately consider the Gladue factors (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688). [5] Having reviewed the reasons of the sentencing judge in the context of the entire record, we are not persuaded that he erredin the manner alleged. In reaching his decision regarding a conditional sentence, the sentencing judge specifically turned his attention tothe leading Supreme Court of Canada decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.

We are satisfied that, based on thecriminal record of the accused, including his very recent involvements prior to this incident, the sentencing judge was addressing hismind to the public safety issue when he held that the accused did not qualify for a conditional sentence. Further, the sentencing judgecorrectly stated that denunciation and deterrence were significant factors in offences such as this. Finally, he reviewed the Gladue/pre-sentence report and considered the Aboriginal circumstances of the accused.

In fact, in taking into account the Gladue and othermitigating factors, he reduced the sentence from the recommended 20 months to 16. [6] No error in principle having been shown and the sentence not being otherwise unfit, deference is to be applied to thedecision of the sentencing judge (see R. v. Ruizfuentes (H.S.), 2010 MBCA 90 at para. 7, 258 Man.R. (2d) 220). [7] However, the accused also appeals on the ground that the sentencing judge erred in only giving him pre-sentence credit ona 1:1 basis.

The Crown agrees that the accused should have been given credit on a 1.5:1 basis because the only reason the accused wasdetained was that he couldn’t meet the bail conditions set; namely, a surety. In our view, this change in position from that taken at thesentencing hearing constitutes a proper concession by the Crown in light of the Supreme Court of Canada decision of R. v. Summers,

2014 SCC 26 , [2014] 1 S.C.R. 575 . [ 8 ] Therefore, we allow the appeal to the extent that the accused be credited at a ratio of 1.5:1 days for the four months that he spent in pre-trial custody. The appeal is dismissed in all other respects. J.A. J.A. J.A.