R v Meilleur, 2022 MBCA 71

Citation: R v Meilleur, 2022 MBCA 71 Date: 20220916 Docket: AR19-30-09296 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : ) A. R. Hodge and ) J. S. Brar His MAJESTY THE king ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent - and - ) ) Appeal heard and JASON MICHAEL MEILLEUR ) Decision pronounced: ) September 9, 2022 (Accused) Appellant ) ) Written reasons: ) September 16, 2022 NOTICE OF RESTRICTION ON PUBLICATION : An order prohibiting disclosure of a witness’s identity has been made in this proceeding pursuant to

section 486.31(1) of the Criminal Code and shall continue. SPIVAK JA (for the Court) : [ 1 ] Following a trial by judge and jury, the accused was convicted of manslaughter and was sentenced to 13 years’ imprisonment. He now appeals his conviction and sentence. After the hearing, we dismissed the conviction appeal, granted leave to appeal sentence, but dismissed the sentence appeal with reasons to follow. These are those reasons. [ 2 ] The accused and two co-accused, Malcolm Mitchell (Mitchell) and Christopher Brass (Brass), attended a home to commit a robbery in order to collect a drug debt.

Brass was carrying a loaded gun. Once inside the home, Brass gave Mitchell the gun. Mitchell shot and killed the victim and started a fire in the kitchen. [ 3 ] Prior to trial, the accused sought to exclude an inculpatory statement he provided to police on May 11, 2017 (the statement).

Previously, on May 10, 2017, while under arrest for breaching a court order and before police knew of his involvement in this matter, he expressed concern for his safety, requested protective custody and had a discussion with police in this regard. (The accused conceded that the May 10th statement was voluntary). [ 4 ] The accused is a mature and sophisticated individual and there was nothing oppressive about the circumstances of the statement.

The accused argued that the statement was not voluntary because the police obtained it through an improper inducement: the promise of protection in exchange for his statement. The trial judge held that there was no inducement which had the effect of overbearing the will of the accused and admitted the statement.

In sentencing the accused, he found that the accused was deeply involved in the robbery and that his moral culpability was high. [ 5 ] On the conviction appeal, the accused submits that the trial judge erred in admitting the statement as he misapprehended the evidence in concluding that there was no inducement. He appeals the sentence on the basis that the trial judge overemphasized denunciation and deterrence and imposed a sentence that was harsh and excessive.

[ 6 ] Determinations of voluntariness are questions of fact or mixed fact and law. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned where a palpable and overriding error affecting the trial judge’s assessment of facts is established ( see R v Oickle , 2000 SCC 38 at paras 22 , 71; and R v Coaster , 2014 MBCA 108 at para 20 ). [ 7 ] We see no basis to interfere with the trial judge’s finding that the accused’s statement was freely and voluntarily made.

In our view, it was reasonably open to the trial judge to conclude that the accused made an effective choice to speak to the police and that his will was not improperly overborne by police action and/or other circumstances. [ 8 ] The trial judge understood that inducements become “improper only when . . ., whether standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” ( Oickle at para 57 ). He concluded that there was no inducement or quid pro quo.

In doing so, he was entitled to accept the police officers’ testimony that they simply told the accused that a request for protective custody would be passed along and did not make any promise or agreement to provide protection in return for his cooperation. It was also open to the trial judge to reject the accused’s testimony that he perceived any help to be contingent on providing a statement to the police.

Understandably, the trial judge also took into account the accused’s comments during the statement that he did not want protective custody and understood he was not promised anything. [ 9 ] The accused argues that, in disbelieving him, the trial judge misapprehended the evidence in finding that, given the timing of the statement, in the accused’s mind, the police would have already reneged on any agreement regarding his protection. The accused asserts that the trial judge failed to consider that the police continued to offer the hope of protection during the statement.

The accused’s argument, properly characterized, is with the trial judge’s assessment and weighing of the evidence. A different

interpretation of the evidence does not amount to a misapprehension of the evidence ( see R v Jovel , 2019 MBCA 116 at para 34 ). Further, the weight and

interpretation to be attached to the language used by the police was “for the judge, not this court” ( Coaster at para 22 ). [ 10 ] We add that the trial judge appropriately acknowledged that the analysis of voluntariness is contextual and, in the absence of oppressive circumstances, a strong inducement would be necessary to render a confession involuntary.

In concluding that the accused’s will was not overborne, the trial judge considered that several of the accused’s comments were prompted by relatively leisurely questioning by the police ( see Oickle at paras 71, 87 ; and Coaster at para 26 ). [ 11 ] Turning to the sentence appeal, the applicable standard of review 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 ). [ 12 ] The accused contends that the trial judge gave inadequate weight to the principle of rehabilitation and imposed an unfit sentence.

He suggests that a fit sentence is 10 years’ incarceration. [ 13 ] Quoting from R v LaBerge , 1995 ABCA 196 ; and R v McLeod , 2016 MBCA 7 , the trial judge recognized that manslaughter covers a wide range of cases from near accident to near murder and the need to determine where on the spectrum the conduct fell in assessing moral culpability. He concluded that the accused’s moral culpability was high as it was the accused’s girlfriend’s debt that was being collected, the accused facilitated access to the home and the accused acted in concert with the other co- accused.

He also noted that the accused did not leave the home when Brass took out the gun and when Mitchell was carrying it. He properly considered that crimes involving gun violence require denunciation and deterrence. He reasonably determined that the fact that the accused had spent 13 years in jail over the past 20 years and had a lengthy criminal record with multiple convictions for violence, disentitled him to leniency and rendered rehabilitation a lesser consideration.

He appropriately took into account, for parity, the 15-year sentence imposed on the co-accused Brass, also convicted of manslaughter. [ 14 ] A sentencing judge’s decision to weigh relevant factors in a particular manner does not, in itself, permit appellate intervention unless the weighing is unreasonable ( see R v Lacasse , 2015 SCC 64 at para 49 ). Appellate intervention is not warranted and deference is owed to the sentence imposed.

The trial judge committed no error in principle and we are not persuaded that, in the circumstances of this offence and this offender, the sentence imposed was unfit. [ 15 ] For these reasons, we dismissed the conviction appeal, granted leave to appeal sentence and dismissed the sentence appeal. JA JA JA