R v Malcolm, 2015 MBCA 75

Citation: R v Malcolm, 2015 MBCA 75 Date: 20150807 Docket: AR15-30-08414 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) K. J. AdventHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) J. A. Hyman ) for the Respondent- and - ) ) Chambers motion heard:NEIL EDWARD ROSS MALCOLM ) July 16, 2015 ) (Accused) Appellant ) Judgment delivered: ) August 7, 2015 MARC M. MONNIN JA [1] The accused, was charged with possession of cocaine for the purposes of trafficking and possession of propertyobtained or derived as the result of the commission of an offence under the Controlled Drugs and Substances Act.

As a result of a pleabargain, the Crown stayed the prosecution on the first charge and the accused pled guilty to an amended second count which reduced theamount of the funds allegedly held to less than $5,000. As a result of that modification, the accused was eligible for a conditionalsentence order (CSO). A joint recommendation was made for a CSO of 21 months which was accepted by the sentencing judge. [2] While the accused was represented by counsel at the preliminary inquiry and for a short period of time thereafter, atthe time of the sentencing he was representing himself.

Submissions made by the Crown at the sentencing hearing were to the effect thatthe original proposal for staying the trafficking charge and a joint recommendation for a CSO of 21 months on a reduced proceeds ofcrime charge were at the suggestion of the accused’s then counsel. At the sentencing hearing, the sentencing judge was made aware ofthe accused’s choice to represent himself. He did ask for some clarification of the reasons, but did not pursue whether the accusedwished to have time to consult another lawyer.

He then proceeded to inquire whether the accused understood the nature of theproceedings and what was being proposed by the Crown. The accused indicated that he was willing to plead guilty to the second chargeof possession of proceeds of crime. The sentencing judge inquired whether the accused understood the consequences of doing so. Hethen proceeded through the necessary steps to determine through an inquiry that the guilty plea was made by the accused with anappreciation of the consequences. [3] The accused now seeks leave to appeal the sentence and judicial interim release pending the appeal.

Since theaccused seeks leave to appeal only the sentence that he received, then pursuant to section 679(1) of the Criminal Code (the Code), I canonly consider his application for judicial interim release if he has been granted leave to appeal.

It is therefore incumbent on me todetermine whether leave to appeal should be granted. [4] To do so, I must find that the accused has an arguable case that the sentence imposed as a result of the jointrecommendation was unfit or clearly unreasonable, or that it was arrived at as a result of an error in principle (see R v Gill, 2010 MBCA92; R v Green (JR), 2005 PESCAD 21, 249 Nfld & PEIR 150; and R v Langlois (DJ), 2008 MBCA 72, 228 ManR (2d) 256).

Anarguable case is one means that the accused is raising at issue that has some merit and that there is a realistic chance of success on appeal(see R v Amin (WU), 2010 MBCA 15, 251 ManR (2d) 137). [5] While the notice of appeal sets out five grounds for seeking to set aside the decision on sentence, they can besummarized in two essential aspects which were argued by counsel for the accused; namely: (

a) that the sentencing judge failed to make the necessary inquiries of the accused with respect to his circumstances andbackground, including failing to require a Gladue report or take into account Gladue considerations (R v Gladue, (SCC), [1999] 1 SCR 688); and

(

b) as well, he failed to properly direct or advise the accused as a self-represented litigant with respect to that consideration. [6] Counsel for the accused argued that a 21 month CSO was excessive in the circumstances of the accused being a firsttime offender when Gladue considerations were taken into acount. When asked what was being requested at the end of the day from thisCourt, counsel advised that he would be seeking an application for fresh evidence with respect to the accused’s background such that areview of the sentence as a whole would be considered.

There is no request to set aside the guilty plea and thus, the stay on thetrafficking charge. [7] The Crown’s position was that the sentencing judge’s decision should be afforded deference. The sentence imposedresults from a true plea bargain and as such cannot be said to be demonstrably unfit (see R v Marriott (AG), 2014 NSCA 28, 343 NSR(2d) 39).

Also, the Crown argues that while the accused was unrepresented at the time of the sentencing, the joint recommendationshould be viewed in the light of the fact that it was negotiated by experienced counsel and was substantially for the benefit of theaccused in staying the more serious offence of drug trafficking which, while the Crown conceded it had difficulties in proving,nevertheless exposed the accused to a greater amount of jeopardy. [8] The accused’s evidence set out in his affidavit is that he did not fully understand the sentencing process nor his rightsat sentencing.

He also states that he was not given a full opportunity to make submissions concerning the sentence and his background. Those comments would have more weight in my determination as to the potential effect on his sentence were we not dealing with a jointrecommendation on the sentence which flowed from the plea bargain. [9] As this Court has said in R v Sinclair (EJ), 2004 MBCA 48, 184 ManR (2d) 1, sentencing judges should normally notdeviate from a joint submission unless they have clear and cogent reasons for doing so (see R v Pashe (SJ) (1995), (MB CA), 100 ManR (2d) 61 (CA)).

Furthermore, where the joint submission results from a true plea bargain between the parties, thisCourt has stated that “[t]he clearer the quid pro quo, the more weight should be given an appropriate joint submission by the sentencingjudge. See R. v.

Broekaert (D.D.) (2003), 2003 MBCA 10 , 170 Man.R. (2d) 229; 285 W.A.C. 229; 2003 MBCA 10, at para.29, and Booh [2003 MBCA 16, 170 ManR (2d) 249], at para. 11” (Sinclair at para 13). [10] In accordance with the suggested procedure set out in Sinclair, in this case the essence of the plea bargain and jointsubmission was placed on the record in open court giving the sentencing judge a solid factual basis on which to make a reasoneddecision. The plea bargain was beneficial to the accused. The charge of trafficking was far more serious than the modified charge ofpossessing proceeds of crime.

He does not seek to set aside the plea bargain or his guilty plea, but only to parse out the sentence thatstems from that plea bargain. [11] I agree with the Crown that given the fact that this was a true plea bargain, the impact of any Gladue considerationswould have been minimized. The accused has not yet articulated how Gladue considerations would have resulted in a differentsentence. This would have been hard to do given that the sentencing judge was faced with a joint recommendation for a specific time.

While it was open to him to reach a different conclusion, there would have to have been cogent reasons for him doing so. Those have notbeen set out in the material before me and presumably would be part of the fresh evidence which the accused would seek to tender. What that would be has not yet been revealed. [12] At the end of the day, I cannot see an arguable case from the accused that the 21 months’ CSO is an unfit sentence inthe circumstances, especially as it comes as a result of a true plea bargain.

While undoubtedly it can be said that the length of the CSO ison the higher side for a first-time offender, in my view it cannot be argued that it is outside of the range, especially given the benefit tothe accused of the staying of the more serious trafficking charge. [13] For these reasons, I would deny leave to appeal. Having denied leave to appeal, I need not consider the application forjudicial interim release. JA