R. v. Dick (K.D.), 2015 MBCA 47

Citation: R. v. Dick (K.D.), 2015 MBCA 47 Date: 20150427 Docket: AR14-30-08261 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN: HER MAJESTY THE QUEEN ) S. J. Soldier ) for the Appellant Respondent ) ) A. Y. Kotler- and - ) for the Respondent ) KEAGAN DENZEL DICK ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 27, 2015 BEARD J.A. (for the Court): I. THE ISSUES [1] The accused has applied for leave to appeal and, if leave is granted, to appeal his sentence for manslaughter.

He wassentenced to a period of incarceration of seven years before deducting the credit for time spent in pre-sentence custody. It is the seven-year sentence that he wishes to appeal. [2] The accused is appealing the sentence on the following grounds: (

i) that the sentence was harsh and excessive in all of the circumstances as a result of the sentencing judge’s reliance on aninappropriate factor; (ii) alternatively, the sentencing judge overemphasized that factor over and above all other factors, resulting in a sentence that was harshand excessive in considering the nature of the offence and the accused’s background; and (iii) the sentencing judge erred in law in her assessment of how Gladue factors [R. v.

Gladue, (SCC), [1999] 1 S.C.R.688] are applied to the sentence. [3] The Crown agrees that leave to appeal should be granted, but takes the position that, even if the sentencing judge erred,the sentence is fit and appellate intervention is not required. II. THE FACTS [4] The accused pled guilty to manslaughter. He was involved in a drug transaction with the deceased when an argumentbroke out. He hit the deceased once on the side of the face and the deceased fell, hitting the back of his head on the pavement.

Theaccused and another individual who was present fled the scene without checking on the deceased or calling for help. The deceased gotup but stumbled and fell several more times, hitting his head. He was later found motionless on the ground and taken to the hospitalwhere he died several days later. The cause of death was blunt force trauma to the head. [5] A pre-sentence report was prepared and, in addition, the defence obtained a psychological assessment report from Dr.Somers, both of which were filed with the court for the sentencing.

Both reports flagged concerns with the accused’s mental capacityand concluded that the accused was a “Very High risk” (the pre-sentence report) or high risk (Dr. Somers) to reoffend. [6] In addition, the pre-sentence report contained what is commonly known as a Gladue report – being a comprehensivereview of the accused’s Aboriginal background, referring to both the general effects of residential schools on Aboriginal people and thespecific effect on the accused’s family. For this family, the effects were significant. The family members have suffered from alcohol

and drug addictions and physical and sexual violence, starting with the accused’s grandparents and affecting their children andgrandchildren. III. STANDARD OF REVIEW [7] The standard of review for a sentence appeal is well known. An appellate court must show great deference to thesentence imposed by the sentencing judge and can interfere only if: (

i) the sentence is demonstrably unfit or its synonyms, demonstrablyinadequate or excessive, or clearly unreasonable; or (ii) the sentence has been arrived at as a result of an error in principle, includingfailing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor oroveremphasizing an appropriate factor. [8] If a ground of appeal alleges an error in principle, that is an error of law for which the standard of review is correctness.

The issue of whether the sentence is demonstrably unfit is reviewed on a very high standard, given that it is a discretionary decision onthe part of the sentencing judge. If there is an error in principle or a sentence is found to be unfit, the appellate court can then review thesentence. (See R. v. Nasogaluak, 2010 SCC 6 at para. 46, [2010] 1 S.C.R. 206.) How an error in principle affected the sentence and,therefore, how an appellate court reviews the original sentence depends on the nature and seriousness of the error.

For example, anappellate court may find that, notwithstanding the error in principle, the original sentence was fit and uphold that sentence, or it may findthat the error affected the fitness of the sentence and sentence afresh, imposing the sentence that it finds appropriate. IV. ANALYSIS (

i) the sentence was harsh and excessive in all of the circumstances as a result of the sentencing judge’s reliance on an inappropriatefactor (ii) the sentencing judge overemphasized that factor over and above all other factors, resulting in a sentence that was harsh andexcessive in considering the nature of the offence and the accused’s background [9] The accused argues that the sentencing judge erred by relying or placing too much weight on a lack of remorse as afactor in sentencing and also on the circumstances surrounding the preparation and presentation of the written apology. [10] Following sentencing submissions, the defence produced a written apology stated to be from the accused that defencecounsel read to the court.

The sentencing judge questioned whether it was the accused’s words, given that, in her view, thesophistication of the vocabulary did not match the reduced level of his intellectual functioning as found by Dr. Somers. Defence counselsaid that the accused told her that he had help preparing it from his case manager and another inmate at the institution where he wasbeing held.

Defence counsel also stated that the accused said that “these are his words, this is what he wanted to say and he had somehelp writing it out.” [11] Defence counsel offered to contact the case manager and get more information regarding the preparation of the apology,but the sentencing judge refused. Instead, she suggested that the accused make his statement orally in court. He attempted, but spokeonly a few words to say that he was sorry.

This was significantly simpler than the written apology and did not demonstrate the insightinto the effects of his criminal behaviour and the commitment to rehabilitation that was expressed in his written apology. [12] In her written reasons, the sentencing judge commented on this and concluded that “[t]he prepared statement is a shamattempt to demonstrate any sense of true remorse” (at para. 14).

Later, when discussing the aggravating factors, she again referred to thestatement, saying “[i]t might be said that the attempt to produce a written statement of remorse that could not possibly have come fromhim does not square with the concept of real remorse” (at para. 28). [13] It is clear that many accused have difficulties expressing themselves, both verbally and in writing. There is absolutelynothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statementexpresses the true sentiments and insights of the accused.

These statements are intended to have an impact on the sentence imposed, and,if they do not express the true sentiments and insights of an accused, then their use will result in an improper sentence. [14] In this case, given her later, rather strong finding that the written apology was a sham, it would have been better had thesentencing judge first permitted the defence to speak to the case manager to try to clear up the details of the preparation of the writtenapology.

In the end, however, there was evidence to support her findings that the apology was not written by the accused and that hisremorse was not genuine. The vocabulary and sophistication of the apology was inconsistent with Dr. Somers’ assessment of theaccused’s mental deficits. Further, as the sentencing judge noted, the pre-sentence report “further noted that [the accused] had expressedno remorse for his involvement in the death of [the deceased], but was more concerned about his own safety should he go to a federalinstitution” (reasons at para. 9).

This pre-sentence report was compiled only three months before the sentencing submissions. Inaddition, while she does not specifically refer to this aspect of Dr. Somers’ report, she had clearly read it closely and there is no referencein Dr. Somers’ report to the accused expressing any remorse, although the accused did talk of the risk to himself in federal prison. Dr.Somers’ report was prepared only one week before the presentation of the written apology.

Thus, if the accused did feel true remorse, itcame very late in the game, which could lead to questions about whether it was genuine. [15] As to whether the sentencing judge gave too much weight to this finding, the weighing and balancing of sentencingfactors was also the subject of comment by the Supreme Court of Canada in Nasogaluak (at para. 46): .... As Laskin J.A. explained in R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.), at para. 35,however, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed the relevantfactors differently: To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or

balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle. (See also R. v. Basov , 2015 MBCA 22 at para. 22 .) [ 16 ] Given all of the evidence available to the sentencing judge, it was open to her to conclude that the written apology was not that of the accused and that the remorse was not genuine.

She does not, however, draw a strong negative inference against him for this and attenuates her earlier findings by stating as follows (at para. 27): .... [The accused] has limited cognitive ability and it may be that his lack of remorse can be explained by his intellectual deficits, although I am concerned by what appears to be a sham statement of apology. He certainly appears to lack insight into the enormity of his actions. However, he did enter a guilty plea to manslaughter, which is an indication of acceptance of responsibility for his conduct.

The assault on [the deceased] was one punch to the head which I accept was not intended to kill him. [ 17 ] When the reasons are considered in total, we do not find that the sentencing judge erred in her conclusion that the written apology was a sham on the part of the accused or that she gave it too much weight.

Thus, in the end, she did not commit any error in relation to her treatment of circumstances of the written apology, the accused’s lack of true remorse or the weight that she gave to those circumstances. [ 18 ] The accused also argues that the sentencing judge erred by treating the lack of remorse as an aggravating factor. After reviewing the mitigating factors (although she did not entitle them as such) (see paras. 26-27), the sentencing judge then went on to consider the aggravating factors (at para. 28): However, there are a number of aggravating factors.

It might be said that the attempt to produce a written statement of remorse that could not possibly have come from him does not square with the concept of real remorse. .... [ 19 ] We agree that, if the sentencing judge treated a lack of remorse as an aggravating factor, then this would be an error in principle. (See R. v. Wishlow (A.C.) , 2013 MBCA 34 at para. 3 , 291 Man.R. (2d) 149.) [ 20 ] It would have been better if the sentencing judge had not worded this as she did, because it is unclear as to exactly what she meant and it is open to the

interpretation that she considered the lack of remorse to be an aggravating factor. That said, it is far from clear that that is what she meant.

It is more in keeping with her statements both at the hearing and in her decision that she was concerned with what she saw as an attempt to put forward a false or misleading document – a “sham.” An attempt to mislead the court is an appropriate fact to consider as an aggravating circumstance in sentencing. [ 21 ] Considering her words in the context of the exchange during the sentencing submissions and her entire decision, we would not find that she erred in her treatment of either the written apology or the accused’s remorse or lack thereof. (iii) the sentencing judge erred in law in her assessment of how Gladue factors are applied to the sentence [ 22 ] When pronouncing sentence, the sentencing judge stated as follows (at para. 29): A sentence of seven to eight years is in accord with the case law supplied by the Crown.

The defence cases tended to emphasize the situations of individuals who had limited or no prior criminal involvement and good prospects for rehabilitation. Such is not the case with [the accused]. Given the aggravating factors, I would have been inclined to sentence him to the eight years requested by the Crown.

However, I am prepared to deduct one year off that sentence to take into consideration some of the Gladue factors that were identified in the Pre-Sentence Report. [ 23 ] The defence argues, and the Crown agrees, that the sentencing judge erred in applying Gladue at the end of the sentencing process by giving the accused a deduction from the sentence that she would have otherwise imposed. [ 24 ] The procedure for considering Gladue factors in sentencing was addressed by this court in R. v.

Smoke (D.D.) , 2014 MBCA 91 , 310 Man.R. (2d) 123, a decision released after the decision in this matter (at para. 42): Thus, the factors related to the accused’s circumstances as an Aboriginal offender must be taken into account as mitigating factors going to moral blameworthiness and weighed, together with all of the other mitigating and aggravating factors related to the offender and the offence, in determining the appropriate sentence for each offence. .... [ 25 ] Likewise, see this court’s decision in R. v.

H. (C.T.) , 2015 MBCA 4 , also a decision released after the decision in this matter (at para. 57): Once the court decided to treat all six offences as consecutive to each other, the sentencing judge correctly proceeded to determine an appropriate sentence for each offence. It is at the point of determining an appropriate sentence for each offence that the Gladue considerations and the ARND [Alcohol-Related Neurodevelopmental Disorder] diagnosis should have come into play as mitigating

factors, not at the end when reviewing the sentence on the basis of totality. .... [ 26 ] Thus, we would agree that the sentencing judge erred in the manner in which she considered the Gladue factors. To be clear, the Gladue factors are not to be considered as an automatic race-based deduction from an otherwise fit sentence. Instead, they are to be considered as a mitigating circumstance, together with all of the other mitigating circumstances such as youth, a lack of a criminal record, etc., in determining the appropriate sentence for the offence and offender.

The weight to be attached to the Gladue factors will vary, depending on the nature of the Gladue factors, their effect on this accused and the other circumstances of the offence and the offender. Gladue should not be considered after the sentencing judge has determined an otherwise appropriate sentence, to see whether that sentence should be reduced to take into account the Gladue factors. [ 27 ] That said, it is clear that the trial judge did consider the principles in Gladue and took into account the circumstances of the accused related to his Aboriginal heritage when sentencing him.

Thus, even if the sentencing judge committed an error in principle, which would allow this court to intervene, that leads to the question of what effect that error had on the sentence and whether the sentence that was imposed was fit. (iv) the appropriate sentence [ 28 ] As stated earlier, if this court finds that there has been an error in principle, it must then determine what effect, if any, that had on the sentence.

Some errors may affect the sentence that was imposed, while others may not. [ 29 ] Even if the sentencing judge committed an error in principle by finding that the written statement was a deliberate attempt to mislead without first giving the accused an opportunity to explain, we would still find the sentence to be fit in the circumstances of this case. [ 30 ] Further, while the sentencing judge did not follow the process that has now been adopted by this court for the consideration of Gladue factors, it is clear that the Gladue factors were considered as part of the final sentence.

This is a timing error that cannot have affected the final sentence. As was noted in H. (C.T.) (at para. 60 ), taken from R. v. Draper (T.G.) , 2010 MBCA 35 , 251 Man.R. (2d) 267, “[w]hat matters ultimately is the fitness of the sentence, not the route taken” (at para. 28). [ 31 ] Considering the facts of this case, as set out in the sentencing judge’s reasons, and the jurisprudence provided to her by both counsel, we would conclude that the sentence of seven years for the manslaughter in this case was a fit sentence. V.

DECISION [ 32 ] For the reasons set out herein, we would grant leave to the accused to appeal his sentence, but we would dismiss his appeal. J.A. J.A. J.A.