R v Houle, 2016 MBCA 121

Citation: R v Houle, 2016 MBCA 121 Date: 20161130 Docket: AR16-30-08605 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant Respondent ) ) - and - ) C. R. Savage ) for the Respondent KALSEY CAMERON HOULE ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) November 30, 2016 MAINELLA JA (for the Court): Introduction [ 1 ] This appeal is about an absconding witness.

The accused was convicted of attempting to obstruct justice ( section 139(2) of the Criminal Code (the Code )) and failing to comply with a condition of a recognizance ( section 145(3) of the Code ). He was sentenced to one year of imprisonment, concurrent on each offence, less credit for pre-sentence custody. He appeals his convictions and seeks leave to appeal sentence. At the hearing of the appeal, the conviction appeal was dismissed, leave to appeal sentence was granted and the sentence appeal was allowed with reasons to follow. These are those reasons.

Conviction Appeal [ 2 ] The background to the absconding was that the accused was a Crown witness at his cousin’s trial for break, enter and theft of a business premise in off hours. He was under subpoena and, further, was subject to a recognizance with a condition that he attend court on the day in question and thereafter as directed. At the conclusion of his direct examination, he asked for permission to use the washroom.

The presiding judge agreed to the requested break, told the accused not to discuss his evidence and then advised that “we will take a few minutes and resume.” The accused left the courtroom, rushed to the elevators of the Winnipeg Courthouse and never returned despite being paged through the Courthouse’s intercom system. [ 3 ] The trial judge, hearing the allegation of absconding, decided that the “inescapable conclusion” from the evidence was that the accused knew he was required to return, breached his recognizance by not doing so and, further, that the intentional decision not to return was for the purpose of attempting to obstruct, pervert or defeat the course of justice. [ 4 ] The accused submits that the convictions are unreasonable.

He argues that there was insufficient evidence to draw the inference that he knew that he had to return to court after the recess or that he had the specific intent to obstruct, pervert or defeat the course of justice by his actions (see R v Abdullah (

G) et al , 2010 MBCA 79 at para 39 , 258 ManR (2d) 89 ). I disagree. In my view, guilt

was the only reasonable inference for both offences available on the evidence or its absence (see R v Villaroman, 2016 SCC 33 at paras36-37; and R v Roulette, 2015 MBCA 102 at para 5). [5] To begin, the accused’s argument that the facts were open to the inference that he believed that he did not have toreturn is without merit. The accused did not testify at his trial and there is no other evidence to support that speculative assertion. Moreover, the submission is based on a faulty assumption; it is not up to a witness to decide when he or she is done testifying.

Theaccused’s legal obligation to appear and remain to give evidence pursuant to his subpoena did not expire until he was excused from doingso by the presiding judge (which never occurred). Section 700(2) of the Code provides: Witness to appear and remain 700(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout theproceedings unless he is excused by the presiding judge, justice or provincial court judge. [6] The act of a witness absconding during his or her testimony is one that tends to obstruct, pervert or defeat the courseof justice.

Such conduct is contrary to the legal obligations created by a subpoena and also has a detrimental effect to the administrationof justice because it creates prejudice to the parties, inconvenience to the Court, jury and other witnesses, and can ultimately delay thecompletion of a trial.

For the purposes of proof of the offence of attempting to obstruct justice, the inference of the specific intentrequired for the offence may be drawn from conduct, like what occurred here, that is “obviously detrimental to the administration ofjustice” (see Abdullah at para 51). [7] I see no reason to interfere with the decision of the trial judge as the facts belie the possibility that the accused’s flightfrom the Courthouse was a “simple error of judgment” (see R v Beaudry, 2007 SCC 5 at para 52, [2007] 1 SCR 190).

There is noevidence of an intention of the accused to return voluntarily to court to complete his testimony despite his ability to do so. In my view,when the evidence as a whole is re-examined, to some extent reweighed, and the effects of it are considered, I am satisfied that aproperly-instructed trier of fact acting judicially could reasonably have rendered the verdicts reached here. Sentence Appeal [8] The relevant background for the sentence imposed is as follows. The accused is now 28 years old. He was raised andcontinues to reside in an Ojibway community in rural Manitoba.

Attendance at residential schools detrimentally impacted his mother andgrandparents and, as a result, his upbringing was negatively affected. He has had substance-abuse problems historically. He has recentlyparticipated in and successfully completed a substance-abuse awareness program while in custody. He has a lengthy uninterruptedcriminal record, primarily for property and driving offences. That record includes two dozen convictions for failing to comply with courtorders. [9] At the sentencing hearing, the parties disagreed as to the seriousness of the attempt to obstruct justice.

The Crownargued that the trial judge should take into account as an aggravating factor the finding of the judge presiding at the trial of the accused’scousin that the accused was “lying through his teeth through the majority of his evidence” prior to absconding. The trial judge disagreedand accepted the position of the accused that the sentence should be limited only to his act of absconding. The trial judge stated: “[H]eis to be sentenced only for leaving the court, essentially, failing to remain as required, and obstruction of justice by leaving thecourtroom.

I cannot take into account the actual circumstances of his testimony and its impact.” [10] The accused argues that the trial judge overemphasized the principle of deterrence, failed to give appropriateconsideration to the analysis required by

section 718.2(

e) of the Code for sentencing Aboriginal offenders in light of Gladue factors (R vGladue, (SCC), [1999] 1 SCR 688) and that ultimately a one-year sentence for absconding part way through givingevidence is demonstrably unfit. [11] The law affords a sentencing judge great latitude in tailoring a sentence to the offence and the offender (R v Ipeelee,2012 SCC 13 at para 38, [2012] 1 SCR 433; and R v Nasogaluak, 2010 SCC 6 at paras 43-46, [2010] 1 SCR 206).

Accordingly, thethreshold for appellate intervention with a sentence is “very high” and limited only to situations of material error or where the sentence isdemonstrably unfit (section 687(1) of the Code and R v Lacasse, 2015 SCC 64 at para 52, [2015] 3 SCR 1089). A material error has twoqualities beginning with demonstration of an error in principle, such as an error in law, a failure to consider or give sufficient weight to arelevant factor, consideration of an irrelevant factor or an overemphasis of an appropriate factor.

The second aspect is that the error musthave impacted the sentence in more than just an incidental way (see Lacasse at para 44). Where the error is harmless, as it has “no realeffect” on the sentence, appellate intervention is not permitted (Lacasse at para 45).

A sentence will be demonstrably unfit where itunreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and theoffender and the acceptable range of sentence for similar offences committed in similar circumstances (see Lacasse at paras 52-55; and Rv Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220). [12] The accused’s Gladue submission is unpersuasive.

The circumstances of the offence are far removed from systemicand personal factors that have tended to bring him into contact with the law historically, such as an unstable upbringing and difficultieswith substance abuse. His criminal conduct was a deliberate voluntary choice to commit an offence with a significant mental element. Counsel conceded at trial that the accused was familiar with the court process.

While a causal link between the offence and the relevantGladue factors is not required, in my view, the Gladue factors here do not diminish the accused’s moral culpability for absconding partway through giving evidence to necessitate a decrease in the length of what would otherwise be a fit sentence (see Ipeelee at paras 73,83). The accused knew what his legal obligations were but openly defied fully meeting them.

[13] Deterrence and denunciation are the paramount considerations for the offence of attempting to obstruct justice asprotection of the integrity of the administration of justice is an important component of the preservation of the rule of law necessary tomaintain a civil society.

The offence is a serious one and sentences for it must dissuade such conduct and firmly convey society’sdisapproval and lack of tolerance for such behaviour (see Roulette at para 9; R v Cashman (P) (1999), (SK CA), 189SaskR 155 at para 6 (CA); and R v Hall (JE), 2001 BCCA 74 at para 12, 150 BCAC 313). [14] The range of sentence for the offence of attempting to obstruct justice is wide because of the innumerable ways it canbe committed.

While jail sentences of one year or more, even up to including penitentiary sentences, have been given to offendersconvicted of attempting to obstruct justice with little or no criminal records, those cases have involved egregious conduct designed toundermine the administration of justice, such as destruction, tampering with, concealing or the manufacture of evidence; intimidation,bribery or otherwise improperly influencing a witness or juror; refusing to testify; a fraud on the court; a breach of trust or the proceedingthat is the subject of the attempt to obstruct is grave in nature (e.g. see Roulette; R v Letta, 2004 MBCA 179, 190 ManR (2d) 165; R vSinclair (JG), 2010 MBCA 105, 262 ManR (2d) 23; R v Appleyard (D), 2007 MBCA 65, 214 ManR (2d) 245; R v RCH, 2013 MBCA108, 303 ManR (2d) 39; and R v Brown (C) (1995), (MB CA), 107 ManR (2d) 59 (CA)).

None of those aggravatingcircumstances is present here. [15] The gravity of the offence and the degree of responsibility of the accused, given the unchallenged finding of the trialjudge that the accused was being sentenced only for absconding after his direct examination, meant that a proportionate sentence wouldbe one that punished what was in essence an aggravated form of failure to appear in court, but nothing more.

I am of the view that a one-year sentence, even for an accused with a lengthy related record, for the conduct he was being sentenced for, is demonstrably unfit. [16] Historically, the accused has typically received sentences of 30-90 days for offences involving breaches of court orders. He was subject to a probation order when he testified at his cousin’s trial for several offences, including breaching more than one courtorder.

His lengthy related record calls for a sentence greater than he has previously received for ignoring legal obligations to properlyaddress the sentencing objectives of specific deterrence and protection of society (subsections 718(

b) and (

c) of the Code - see R vWright (CD), 2010 MBCA 80 at paras 13-16, 258 ManR (2d) 118).

Given the trial judge imposed concurrent sentences, which wasappropriate in the circumstances, the overall sentence must also be of sufficient length to ensure that the accused does not receive a “freeride” on the breach of a condition of a recognizance offence and to properly recognize that multiple offences were committed together(see R v Wozny (CP), 2010 MBCA 115 at para 70, 262 ManR (2d) 75; and R v Cook (N), 2014 MBCA 29 at para 35, 303 ManR (2d)235). [17] In my view, taking into account the gravity of the offence and the accused’s degree of responsibility (as found by thetrial judge), the relevant personal and systemic factors, the applicable sentencing principles and objectives, and the range of sentence formore egregious cases of attempting to obstruct justice, a fit sentence for that offence would be one of six-months’ imprisonment.

Therelevant circumstances satisfy me that a fit sentence for the offence of breaching a condition of a recognizance would be one of four-months’ imprisonment, to be served concurrently. [18] The accused had served about six and one-half months of pre-sentence custody. His total sentence of six months willbe served by crediting four months of that pre-sentence custody at the rate of 1.5:1, plus one day of imprisonment for his courtappearance on the date of sentencing.

For the purposes of clarity, the remaining two and one-half months of pre-sentence custody andthe time served as a sentenced prisoner on these offences is available for credit to the accused but only for a currently- outstandingcharge(s) (i.e., the credit cannot be “banked” for future offences if the accused becomes re-involved with the law while in custody orafter his release). Disposition [19] In the result, the appeal as to conviction is dismissed. Leave to appeal sentence is granted, the sentence appeal isallowed and the accused’s sentence is varied in accordance with these reasons. JA JA JA