R v Bourassa, 2022 MBCA 9

Citation: R v Bourassa, 2022 MBCA 9 Date: 20220118 Docket: AR21-30-09613 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) L. V. Kellie-McMillan ) for the Appellant Respondent ) ) M. S.

Bright - and - ) for the Respondent ) RANDALL PRESTON BOURASSA ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 18, 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. PFUETZNER JA (for the Court): [ 1 ] The accused seeks leave to appeal and, if granted, appeals a sentence of seven years’ imprisonment imposed for four weapons-related offences.

He argues that the judge did not adequately apply the principle of totality and, as a result, imposed a sentence that is demonstrably unfit. [ 2 ] The circumstances of the offences are that the accused confronted an acquaintance (the victim) at a Winnipeg hotel and struck her in the face with the butt end of a loaded sawed-off shotgun. As they struggled, the firearm discharged through the door of a hotel room. The occupant of the room was not injured.

The accused fled the hotel, leaving behind a bag in which police found, in addition to the shotgun used to assault the victim, another sawed-off shotgun, a sawed-off rifle and ammunition. As stated by the judge, “The danger presented by this scenario is stunning.” [ 3 ] At the time of these offences, the accused was subject to a lifetime weapons prohibition as a result of previous convictions for robbery and manslaughter. The accused has a lengthy related criminal record and had been released from custody about four months prior to these offences. [ 4 ] The accused pleaded guilty to assault with a weapon (

section 267 (

a) of the Criminal Code (the Code )), possessing a firearm while prohibited (

section 117.01(1) of the Code ) and two counts of possessing a loaded prohibited firearm (

section 95 of the Code ). Several other charges were stayed. [ 5 ] The Crown recommended that the sentences for each of the four offences be imposed consecutively. It sought sentences of three years for each of the

section 95 offences, one year for the

section 117.01 offence and two years for the assault with a weapon offence. From the total resulting sentence of nine years, the Crown recommended a reduction of two years for totality, for a global sentence of seven years. [ 6 ] On the other hand, the accused sought concurrent sentences of two and one-half years each on the two

section 95 offences, and consecutive sentences of six months on the

section 117.01 offence and one year on the assault with a weapon offence, for a total sentence of four years. He also recommended a very minor reduction for totality so that, after credit for his time in pretrial detention, he could serve the remainder of his sentence in provincial custody. [ 7 ] The judge sentenced the accused to three years’ custody on each of the two

section 95 offences, concurrent to one another; two years’ custody on the assault with a weapon offence consecutive to the

section 95 offences; and two years’ custody on the

section 117.01 offence consecutive to the assault with a weapon offence, for a total sentence of seven years. Notably, this was the global sentence proposed by the Crown after a reduction for totality considerations.

[ 8 ] The accused asserts that, because the judge did not specifically refer to totality in passing sentence, we “cannot presume in [the] absence of reasons, that totality was considered.” As a result of this alleged error, the accused argues that the sentence imposed was demonstrably unfit. [ 9 ] The standard of review on sentence appeals is highly deferential. Absent an error in principle that had an impact on the sentence, or a sentence that is demonstrably unfit, this Court will not intervene. As this Court has stated repeatedly, trial judges are presumed to know the law.

In addition, reasons must be read in light of the record, the submissions and the live issues at play. [ 10 ] When consecutive sentences are imposed, sentencing judges are reminded that they should explicitly state that they have considered the principle of totality and should allocate any reduction for totality to specific offences. [ 11 ] Having said that, we are satisfied that the judge did, in fact, consider that principle. Totality was addressed by the Crown and the accused in submissions and, in her reasons, the judge specifically refers to

section 718.2 (

c) of the Code , which codifies the principle of totality, as one of the sections that she wished to highlight.

Ultimately, the judge identified a sentence for each offence, determined whether the sentences would be consecutive or concurrent, and concluded that no adjustment for totality was warranted. [ 12 ] Perhaps more importantly, in our view, the judge’s failure to mention that she had considered totality had no impact on the sentence. [ 13 ] At the end of the day, in all of the circumstances of this case, including the aggravating and mitigating factors found by the judge, we are not persuaded that the sentences imposed are demonstrably unfit. [ 14 ] For these reasons, we grant leave to appeal but dismiss the appeal.

JA JA JA