R v Derksen, 2022 MBCA 6

Citation: R v Derksen, 2022 MBCA 6 Date: 20220110 Docket: AR21-30-09597 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : her majesty the queen ) S. A. Inness ) for the Appellant Respondent ) ) D. C.

Sahulka - and - ) for the Respondent ) jayden riley derksen ) Appeal heard and ) Decision pronounced: ( Accused) Appellant ) January 10, 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. beard JA (for the Court) : [ 1 ] The accused appeals his sentence of nine and one-half years’ incarceration following his plea of guilty to three firearms charges. This Court was of the view that leave to appeal should be denied, and so advised the parties at the hearing.

However, the parties asked that the appeal be granted to the extent of clarifying one aspect of the individual sentences related to the application of the totality principle. [ 2 ] The sentences imposed, before any reduction for totality, were consecutive sentences of three years’ incarceration for possessing an unregistered loaded restricted handgun without a licence (October 12, 2019) (

section 95 of the Criminal Code ), seven years’ incarceration for discharging a firearm at a person with intent to endanger life (March 6, 2020) ( section 244(1) of the Criminal Code ) and six months’ incarceration for breaching the conditions of a judicial interim release order, that condition being not to possess a firearm (March 6, 2020) ( section 145(5) (

a) of the Criminal Code ). [ 3 ] As the sentences were consecutive, the sentencing judge appropriately considered the totality principle, pursuant to which he ordered a reduction of one year from the total sentence imposed.

He did not, however, indicate how the reduction was to be allocated as between the three individual sentences. [ 4 ] The parties are agreed, as are we, that, on a reading of his reasons, it is clear that the one-year reduction should be applied to the seven-year sentence for discharging a firearm, leaving the final sentence for that offence at six-year’s incarceration, and that the remaining sentences should remain as imposed by the sentencing judge. [ 5 ] We recognize that the sentencing judge gave his decision on the same day as he heard the sentencing submissions.

While, in this case, the reason for the reduction was discernable from the oral decision, sentencing judges are reminded that the reasons must address the allocation of the reduction among the individual sentences (see, for example, R v Wozny , 2010 MBCA 115 at paras 69- 73 ). [ 6 ] Thus, with the exception of this one change, the appeal is dismissed.

JA JA JA