R v Linklater, 2015 MBCA 79

Citation: R v Linklater, 2015 MBCA 79 Date: 20150821 Docket: AR15-30-08417 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) I. L. Singh ) for the Appellant ) Respondent ) C. T. St. Croix ) for the Respondent- and - ) ) Chambers motion heard:GARY JOEL LINKLATER ) August 13, 2015 ) ) Decision pronounced: (Accused) Appellant ) August 21, 2015 CHARTIER CJM [1] The accused applies for leave to appeal sentence and, if leave is granted, for bail pending the hearing of the appeal.

Hepled guilty to one count of aggravated assault on his girlfriend and was sentenced to two years’ imprisonment followed by one year ofprobation. The accused was credited with seven and one-half months of pre-sentence custody on a 1:1.5 basis. [2] As with all applications for leave to appeal sentence, an outline of the facts is necessary. While bound by arecognizance to abstain from alcohol, the intoxicated accused argued with his intoxicated girlfriend, over her perceived infidelity. Thiscaused his girlfriend to strike the accused in the face, to grab his glasses from his face and to throw them to the ground.

The accusedthen went to the kitchen where he retrieved a chef’s knife with a ten-inch blade. While continuing to argue with his girlfriend, hestabbed her once in the chest “burying the knife to the handle.” He then immediately fled the scene. [3] His girlfriend was transported to hospital in critical condition suffering a stab wound which was approximately four tofive centimetres in length. She required surgery to close the laceration on her chest wall and to repair internal damage to her liver anddiaphragm. The surgery left her with a lengthy scar on her abdomen.

She has had a difficult recovery process and suffers lingeringphysical and emotional effects. [4] For the accused to be granted leave to appeal his sentence, he must demonstrate that his appeal presents an arguablecase, meaning that it must have some merit, some realistic chance of success. Put another way, if there is no realistic chance that theappeal will be successful, leave to appeal sentence should be denied. When assessing the merits of the appeal and its chance of success,the applicable standard of review must be taken into account.

The more deferential the standard of review, the lesser the chances are forsuccess.

For sentence appeals, great deference is owed to the sentence imposed by the sentencing judge. [5] The accused advances three grounds of appeal; first, that the sentencing judge erred in principle by taking into accountan irrelevant factor, specifically by inferring that the aggravated assault was “relatively forceful”; second, that the sentencing judge erredin principle by underemphasizing rehabilitation, the Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688),proportionality and provocation; and third, by imposing a harsh and excessive sentence. [6] The first ground of appeal is that the sentencing judge erred by describing the assault as “relatively forceful.” In myview, there is no realistic chance of success on this ground.

I agree with the Crown that a fair reading of the sentencing judge’s reasonsshows that she was simply acknowledging that the degree of force was not trivial and that it was certainly sufficient to support a plea toaggravated assault. Moreover, her description of the assault as being “relatively forceful” was, in my view, clearly reasonable andsupported by the facts given that a ten-inch blade was buried in his girlfriend’s chest up to the handle of the blade. [7] The second ground relates to whether the sentencing judge erred by underemphasizing rehabilitation, the Gladuefactors, provocation and proportionality.

Counsel for the accused correctly acknowledges that he cannot point to a specific place in thesentencing judge’s reasons that demonstrates that she made the error he alleges. The fact of the matter is that the sentencing judgeacknowledged on four different occasions the accused’s rehabilitation efforts. Moreover, before imposing sentence, she conducted a

detailed review of the Gladue considerations. Indeed, two out of the eight pages of the transcript of her reasons are allocated to this review. As to proportionality, while the sentencing judge finds that the accused’s moral blameworthiness was high, her reasons show that she tempers that fact because of his rehabilitation efforts and the Gladue factors: Based on the serious facts and the aggravating factors present, a penitentiary sentence is not inappropriate.

In these circumstances, given the genuine and sincere success that [the accused] has achieved by way of rehabilitation and in light of his very difficult background I have concluded that a sentence of two years is a fit and proper sentence. [emphasis added] [ 8 ] The accused also argues that the sentencing judge minimized or gave little weight to the fact that his girlfriend incited or provoked him to attack her.

The sentencing judge’s reasons show that she was alive to the accused’s submission “that [his girlfriend] provoked him on the night in question.” Her reasons also demonstrate that she reviewed and considered the photographs which showed the injuries the accused had suffered at the hands of his girlfriend the night of the arrest.

She found the injuries to be “relatively superficial in nature.” While I agree with the accused that the sentencing judge gave little weight to this factor, it is hard to conclude that this finding is in any way unreasonable given what can only be described as a clearly disproportionate response by the accused. [ 9 ] As I have stated, the reasons of the sentencing judge demonstrate that she considered the relevant sentencing factors.

In my view, the accused has not made an arguable case that the sentencing judge inappropriately weighed them. [ 10 ] The third and final ground is that the sentencing judge imposed a sentence that was harsh and excessive. The accused concedes that the sentence is within an appropriate range for aggravated assault for a typical offender, but submits that it is demonstrably unfit for this particular offender.

He also argues that, had the sentencing judge properly taken into account his moral blameworthiness as it was affected by his Aboriginal background, she would have imposed a lesser sentence. [ 11 ] For the reasons already outlined, I am of the view that there is no arguable merit to this ground. As already stated, the sentencing judge’s reasons show that she tempered the accused’s moral blameworthiness because of his “genuine and sincere success” with respect to his rehabilitation and because of his “difficult background”.

When imposing a fit and appropriate sentence, the sentencing judge must weigh the different mitigating and aggravating factors and consider the various principles of sentencing according to the circumstances surrounding the offence and the circumstances of the offender.

The factors raised by the accused are to be balanced with the fact that the offence occurred while the accused was intoxicated despite being bound by an order to abstain; that the offence involved the use of a weapon and occurred in a domestic relationship; that the impact of the attack on his girlfriend was significant; and that, while dated, the accused had a lengthy and related record.

When all factors and principles along with the highly deferential standard of review are taken into account, there is no arguable merit to this ground of appeal. [ 12 ] As a result, leave to appeal sentence is denied and, therefore, the question of whether to grant judicial interim release now becomes moot. [ 13 ] One last point needs to be mentioned. At the hearing before me, I asked counsel to clarify how the pre-sentence custody credit had been arrived at.

After consultation between counsel, it was determined that the accused had only served 97 days of pre- sentence custody, as opposed to the five months stated by the sentencing judge. The end result is that the accused has, in effect, received a two and a half month pre-sentence custody over-credit. The Crown stated at the leave to appeal hearing that it will not appeal that aspect of the sentence. CJM