R v Glennie, 2022 MBCA 21

Citation: R v Glennie, 2022 MBCA 21 Date: 20220211 Docket: AR21-30-09643 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : her majesty the queen ) A. R. Hodge ) for the Appellant Respondent ) ) H. D. P.

Crawley - and - ) for the Respondent ) roy lawrence glennie ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) February 11, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. burnett JA (for the Court) : [ 1 ] The accused applies for leave to appeal and, if granted, appeals his sentence of 12 years’ imprisonment relating to drug trafficking and weapons offences committed on September 3, 2019 and January 26, 2020.

At the sentencing hearing, there were a large number of charges on varying dates which led to significant confusion. [ 2 ] The accused entered guilty pleas to 12 offences and was sentenced to a total of 15 years’ incarceration. The sentencing judge reduced the sentence to 12 years to account for totality, but did not allocate the reduction to specific offences.

The sentencing judge credited the accused with 26.6 months pre-sentence incarceration, leaving a go-forward sentence of nine years and 9.4 months. [ 3 ] The accused appeals, arguing that the sentencing judge erred: 1) in her assessment of concurrent and consecutive sentences; 2) by erroneously finding that the firearm from the January 26, 2020 incident was a restricted weapon; and 3) by imposing an unfit sentence. [ 4 ] The sentencing judge’s assessment of concurrent and consecutive sentences is entitled to significant deference absent an error in principle (see R v Maroti , 2010 MBCA 54 at para 17 ; and R v Wozny , 2010 MBCA 115 at para 10 ).

Here, the sentencing judge explained why some sentences were consecutive, while others were concurrent. We are not persuaded that she erred. [ 5 ] While it is true that the sentencing judge imposed a four-year consecutive sentence for a “loaded restricted firearm”, we agree with the Crown that she did not misapprehend the nature of the firearm, but simply misspoke when attributing sentences to the counts on a convoluted docket. Perhaps more importantly, we are not persuaded that the alleged error had any impact on the four-year sentence imposed by the sentencing judge.

Although the classifications of the two firearms seized are different, the offences under sections 92(1) and 95(1) of the Criminal Code carry the same maximum punishment of 10 years, and the sentence imposed was within the accepted range. [ 6 ] Finally, we are satisfied that the individual sentences and the total sentence were not demonstrably unfit.

[ 7 ] Leave to appeal is granted as the sentencing judge should have apportioned the adjustment for totality. [ 8 ] As Chartier CJM stated in R v Banayos and Banayos , 2018 MBCA 86 , “Since the sentencing judge did not apportion the 18-month totality adjustment between the trafficking offences and the proceeds of crime offences, this Court is left to determine what that apportionment would be” (at para 52). [ 9 ] The three-year totality adjustment in this case shall be allocated as follows:

a) The five-year sentence for unlawful possession for the purpose of trafficking methamphetamine on September 3, 2019 is reduced by one year, to four years.

b) The five-year concurrent sentence for possession of a restricted firearm on September 3, 2019 is reduced by one year, to four years, concurrent.

c) The 5.5-year sentence for unlawful possession for the purpose of trafficking methamphetamine on January 26, 2020 is reduced by one year, to 4.5 years, consecutive.

d) The 5.5-year concurrent sentence for unlawful possession for the purpose of trafficking fentanyl on January 26, 2020 is reduced by one year, to 4.5 years, concurrent.

e) The four-year consecutive sentence for possession of a non-restricted firearm on January 26, 2020 is reduced by one year, to three years, consecutive. There is no adjustment required for the remaining sentences. [ 10 ] For these reasons, leave to appeal is granted, but the appeal is dismissed. JA JA JA