R v Whincup, 2021 MBCA 64

Citation: R v Whincup, 2021 MBCA 64 Date: 20210621 Docket: AR21-30-09556 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN: ) W. G. MarksHER MAJESTY THE QUEEN ) for the Appellant ) (via videoconference) ) Respondent ) M. E.

Carlson ) for the Respondent- and - ) (via videoconference) ) MARLON ELIJAH WHINCUP ) Appeal heard and ) Decision pronounced: ) June 9, 2021(Accused) Appellant) ) Written reasons: ) June 21, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules, MR555/88R, this appeal was heard remotely by videoconference. simonsen JA (for the Court): [1] The accused seeks leave to appeal and, if granted, appeals his total sentence of 30 months’ imprisonment for theoffences of theft over $5,000 (section 334(

a) of the Criminal Code (the Code)), dangerous operation of a conveyance (section 320.13(1)),impaired operation of a conveyance (section 320.14(1)(a)), operation of a conveyance while prohibited (section 320.18(1)(a)) and breachof probation (failure to report) (section 733.1(1)). The sentencing judge allowed a credit of 9.5 months for pre-sentence custody, leavinga sentence to be served of 20.5 months, which she then reduced by two months for totality, resulting in a go-forward sentence of 18.5months.

A six-year driving prohibition was also imposed. [2] The Crown acknowledges, and we agree, that the sentencing judge made a mathematical error and that she intendedto impose a total sentence of 24 months instead of 30 months.

Therefore, the Crown concedes that the total sentence should be varied toone of 24 months, but it disputes the balance of the appeal. [3] The accused asserts that the sentencing judge erred by unreasonably weighing factors in relation to his extremeintoxication at the time of the offences, his historic addictions and mental health problems, and Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688); failing to apply the principle of parity; and imposing an unfit sentence. [4] After hearing the appeal, we granted leave to appeal and allowed the appeal, in part, with reasons to follow.

Theseare those reasons. [5] At the time of the theft and driving offences, the accused was in a state of methamphetamine-induced psychosis. Paramedics, who were traveling by, observed him struggling to get out of a large recycling bin. They pulled over to assist and heemerged from the bin, completely naked. He approached the paramedics, entered the ambulance and took off driving through the streetsof Winnipeg, sometimes at very high speed and also in the wrong direction.

He ultimately crashed the ambulance into a planter in frontof a building, causing significant damage to both the planter and the building, and destroying the ambulance, which was valued at inexcess of $200,000. The accused then attempted to flee on foot and, after chasing and then tasering him, the police were able to apply

handcuffs and detain him. [ 6 ] The accused’s criminal record includes convictions for related offences. He has multiple prior convictions for operation of a conveyance while prohibited and impaired-related offences. Moreover, he had been sentenced for some of those offences only one month earlier, at which time he was released from custody. His record also contains a conviction in 2018 for flight while pursued by a peace officer, for which he received a two-year sentence.

Furthermore, at the time of the offences now before this Court, he was bound by two probation orders and a recognizance. [ 7 ] The accused pleaded guilty to all of the charges that are the subject of this appeal.

He has significant mitigating personal circumstances and Gladue factors. [ 8 ] A psychiatric assessment report was provided to the sentencing judge, which described the accused’s history as involving “significant trauma and disruption throughout his childhood, including neglect, abuse and being separated from his family of origin”, as well as “a family history of addictions.” The accused was reported to have “an extensive history of substance use dating back to his childhood”. He was also described as having a pattern of psychosis symptoms during the last several years associated with the use of methamphetamine.

At the time of these offences, “his mental state was assessed as being affected by a combination of methamphetamine intoxication and methamphetamine-induced psychosis.” [ 9 ] The standard of review applicable to sentencing decisions is deferential. Absent an error in principle that had a material impact on the sentence or a sentence that is demonstrably unfit, an appellate court should not intervene (see R v Friesen , 2020 SCC 9 at para 26 ). [ 10 ] First, the accused says that the sentencing judge erred in considering his intoxication as an aggravating factor.

In our view, the sentencing judge was within her discretion to do so — it was the accused’s level of intoxication, “the fact that [he was] so extremely impaired”, that she reasonably found to be aggravatin g. [ 11 ] As for the accused’s contention that the sentencing judge unreasonably weighed the relevant factors and failed to adequately explain the weight that she attributed to those factors, we see no error. An appellate court should not intervene simply because it would have weighed the sentencing factors differently ( see R v Nasogaluak , 2010 SCC 6 at para 46 ).

In any event, the sentencing judge explained that she placed significant weight on the accused’s multiple mitigating factors, including his tragic background, addictions and mental health problems, and on Gladue factors. She stated that she had to “take into account the fact that this [was] directly related to an addiction that [was] directly related to the circumstances that [the accused found himself] in because of [his] Indigenous background”. She appropriately balanced those factors with the seriousness of the offences, the accused’s criminal record and his risk to public safety.

The emphasis that she placed on denunciation and deterrence and her determination that “public safety [had] to be a component for sure, a big component of this” were well-founded, given all of the circumstances. [ 12 ] With respect to the principle of parity and whether the total sentence was unfit, th e sentences from earlier cases provide guidance but are not conclusive of an appropriate sentence in a given case.

We note that some of the cases referred to by counsel for the accused are readily distinguishable as they were decided under a different sentencing regime in the Code in relation to driving offences (see R v Amyotte , 2020 MBCA 116 at para 6 ; and R v Sinclair , 2021 MBCA 6 at para 8 ). The new sentencing regime established by Parliament for driving offences must be given effect by the courts. As Spivak JA stated in Sinclair , “[a]n increase in sentence has to be taken into account in the assessment of proportionality” ( ibid ).

Leaving aside the issue that the maximum sentences have been increased, it is further noteworthy that there was the presence here of the statutory aggravating factor of the accused operating a conveyance despite not being legally permitted to do so (see

section 320.22 (

g) of the Code ). In

summary, we are not persuaded that the sentences imposed for the various offences in this case are outside the range of acceptable sentences for these offences. In our view, they were not unfit nor, subject to the following comments about totality, was the 24-month total sentence that the sentencing judge intended to impose. [ 13 ] As we have said, the sentencing judge, in applying the principle of totality, reduced the go-forward sentence by two months. The accused says that, even with a 24-month instead of a 30-month total sentence, a like reduction should be made.

The Crown argues that, in that scenario, there is no need to subtract two months because the go-forward sentence will be less than the 20.5 months that the sentencing judge saw fit to reduce for totality. We disagree. The sentencing judge’s intention was to make that reduction from the total sentence that she had found to be appropriate, which the Crown concedes was 24 months.

We see no reason to interfere with the sentencing judge’s determination regarding totality, which makes the total sentence 22 months. [ 14 ] For the foregoing reasons, leave to appeal the sentence was granted and the appeal was allowed to the extent that the total sentence was reduced to 22 months’ incarceration. Applying a credit for pre-sentence custody of 9.5 months, the sentence to be served (from the date of the sentencing) is 12.5 months. The ancillary orders made by the sentencing judge remain. JA JA JA