R v Daniels, 2023 MBCA 86

Citation: R v Daniels, 2023 MBCA 86 Date: 20231012 Docket: AR22-30-09817 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN: ) W. G. MarksHIS MAJESTY THE KINg ) for the Appellant ) Respondent ) D.

Sahulka ) for the Respondent- and - ) ) Appeal heard:bradley james daniels ) June 7, 2023 ) (Accused) Appellant ) Judgment delivered: ) October 12, 2023 steel JA [1] The accused appeals his sentence of 30 months following guilty pleas to three weapons offences arising out of hispossession and careless use of a restricted firearm.

Leave to appeal and judicial interim release had been granted. [2] The appeal raises the correct application of Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR688) to the issues of moral culpability and mitigating circumstances, and the applicable test when considering a stay of sentence. FACTS [3] The accused was living with his mother and her partner when he became intoxicated, and an argument arose betweenthe two men. The partner threatened to beat up the accused and kill his dog. The accused went to his bedroom.

When he heard thepartner coming downstairs, he grabbed a loaded revolver that he had in his bedroom and accidentally discharged a bullet into the floor. The accused told the police that he was prepared to use the handgun against the man. [4] The police arrested the accused and he remained in custody from January 29, 2021 to August 5, 2021, until he wasreleased on bail to the Behavioural Health Foundation (the BHF). He remained there until he completed the program on February 5,2022, at which time he moved into his sister’s residence where he looked after her children while she worked.

He was sentenced on July8, 2022, and released on bail pending appeal to this Court on January 19, 2023. He moved to Brandon where he resides by himself. Hesecured a job in April. He has not taken any further treatment or programs to address his addictions, although he has remained sober andthere have been no breaches of his bail conditions. He relies upon what he learned while at the BHF to manage his addiction issues andhas connected with an elder in his community for additional support.

SENTENCING JUDGE [5] The Crown’s position at trial was a sentence of three years while the accused asked for time served or, alternatively, aconditional sentence. [6] The sentencing judge considered the accused’s personal circumstances, remorse, positive support in the communityand steps towards rehabilitation. He acknowledged that the death of the accused’s father, displacement from his father’s community andthe intergenerational trauma suffered by his family as a result of residential schools all had a significant impact on him.

[7] However, the sentencing judge also noted that the accused had created a very dangerous situation by having anunlicenced restricted firearm in his room, stored insecurely, and loaded with ammunition.

Further, the accused had been intoxicated and,in handling the firearm in that state, could have killed someone. [8] He sentenced the accused to 30 months on the possession of firearm with ammunition, one-year concurrent on thecareless use of firearm and 90 days concurrent on the possession of a restricted firearm without a licence. [9] The accused appeals arguing that the sentencing judge failed to properly consider the Gladue factors and the link tomoral culpability and the principle of restraint. DECISION [10] The standard of review for a sentence appeal is well settled.

An appellate court must show great deference to asentencing judge’s exercise of discretion and only intervene if the sentence is demonstrably unfit or if there has been an error in principlewhich had a material impact on the sentence. “Demonstrably unfit” in the sentencing context refers to a sentence falling outside theacceptable range of sentences under similar circumstances (see R v Anderson, 2017 MBCA 31 at para 15).

An error in principle includesfailing to consider a relevant factor, considering an irrelevant factor, failing to give sufficient weight to a relevant factor oroveremphasizing an appropriate factor (see R v Lacasse, 2015 SCC 64 at para 11; R v Gabriel, 2013 MBCA 45 at para 17; and R v M(CA), (SCC), [1996] 1 SCR 500). [11] Canadian courts have held that firearm offences are serious and attract serious penalties and that the primary sentencingprinciples in such cases are denunciation and deterrence (see R v Hebrada-Walters, 2019 MBCA 102; and R v McMillan (BW), 2016MBCA 12 at para 12). [12] The accused argues that the sentencing judge erred in inappropriately suggesting that there was little difference in moralblameworthiness between him and the accused in R v Nur, 2015 SCC 15.

He argues that the sentencing judge did not give proper weightto his Gladue factors, as well as his addiction issues. The accused submits that, by comparing the accused in Nur to the accused in thiscase, the sentencing judge ignored the presence or significance of his Gladue issues. [13] The sentencing judge stated that “[the accused’s] culpability is not significantly different from Mr. Nur’s.

Like in Nur,the appropriate sentence should be a weighty one, as described by the Supreme Court.” Reading the reasons as a whole (including thesubmissions of counsel), in my view, the sentencing judge was referring to the fact that, despite the limited criminal record and positivereferences of the accused, he had created a highly dangerous situation. He kept a “loaded handgun readily accessible in his bedroomdespite his issues with substance abuse and the dysfunction and conflict within his home.

This was a recipe for tragedy.” Moreover, hetold the police that he was prepared to use the handgun. [14] It is trite that an offender’s background must be considered by a court when considering a sentence, with particularattention to Indigenous offenders. This is enshrined in

section 718.2(

e) of the Criminal Code, and has been commented upon at lengthby many appellate courts since the Supreme Court of Canada’s decisions of Gladue and R v Ipeelee, 2012 SCC 13 (see, for example, R vLavallee, 2022 MBCA 100 at paras 30-32). I agree with counsel for the accused that Gladue issues, including systemic and backgroundfactors, should be considered in respect of the assessment of moral blameworthiness.

As well, the presence of addiction or mental healthproblems in an Indigenous individual must be viewed through the lens of the residual effects of residential schools and intergenerationaltrauma. [15] As stated in R v Harper, 2021 MBPC 47 (at para 39): . . . The circumstances of being Indigenous, sometimes referred to as “Gladue circumstances” are not to be considered merely“mitigating factors” under s. 718.2(a), which reduces or increases a sentence to account for any aggravating or mitigating circumstancesrelating to the offence or the offender.

The reality of being Indigenous is fundamental and is to be taken into account in assessing themoral culpability of the offender in the fundamental sentencing principle of proportionality. [emphasis in original] [16] However, when looking at the reasons as a whole, it can be seen that the sentencing judge did consider the impact ofrelevant Gladue factors on the accused’s moral blameworthiness.

He had a comprehensive pre-sentence report (the PSR) before him andnoted that Gladue factors, including intergenerational trauma due to residential schools as well as the death of his father and the loss ofhis home community, had greatly affected the accused’s life. While the offender in Nur received a sentence of 40 months and the Crownin this case recommended a sentence of 36 months, the sentencing judge imposed a sentence of 30 months, taking into account Gladueconsiderations as well as mitigating circumstances.

Those mitigating circumstances included the acknowledgment of a long-standingaddiction to alcohol and the steps taken by the accused towards dealing with that problem. [17] In R v Whitehead, 2016 SKCA 165, the Saskatchewan Court of Appeal commented on the deference due to a sentencingjudge’s decision regarding the weighing of Gladue factors (at para 74): . . . [W]here a sentencing court has given effect to R v Gladue considerations under s. 718.1, that decision and the sentencing court’sfindings as to the extent to which R v Gladue considerations have affected the Aboriginal offender’s moral culpability in terms of

sentence proportionality — however briefly stated — must be accorded all the deference that is properly due to the sentencing court . . .. [emphasis in original] [ 18 ] For the above reasons, I would dismiss the appeal. REINCARCERATION [ 19 ] At the appeal hearing, the Court raised the issue of whether the accused should be reincarcerated given the period that elapsed since the offences. The parties asked for, and were given an opportunity to submit, further written argument on this point. [ 20 ] The paramount consideration in a stay of a sentence is whether reincarceration would create an injustice.

In R v JED , 2018 MBCA 123 , this Court stated, “While the overarching question is whether reincarceration of the accused will ‘serve the ends of justice’, at the end of the day, that exercise of discretion ‘is a contextual and fact-driven analysis applied to the individual situation’ [citations omitted]” (at para 113). [ 21 ] A number of factors have been considered in this contextual and fact-driven analysis. It is a delicate interplay between the individual and the crime committed. An offender’s Indigenous heritage is a relevant feature, which will colour the overall analysis as it does sentencing in general.

Although non-exhaustive, some of those factors include: (

a) the elapsed time since the offender was released from custody and the date when the appellate court hears and decides the appeal; (

b) the potential for injustice if the new sentence is served; (

c) the length of time since the offence occurred or the original sentence was imposed (see R v Clouthier , 2016 ONCA 197 at para 63 ); (

d) rehabilitation issues, including the impact of reincarceration on the rehabilitation of the offender; whether there has been evidence of progress in rehabilitation or evidence of rehabilitative efforts since the original sentencing; and the behaviour and conduct of the offender in the ensuing period since sentencing (see JED at paras 115, 144 ; and R v Veysey , 2006 NBCA 55 at paras 17-40 ); (

e) the reasons for any delay between the date of arrest and the date the appeal sentence was imposed (see R c Clarke , 2015 QCCA 1995 ); (

f) the gravity of the offence ( see McMillan at para 37 ); and (

g) the length of sentence remaining to be served (i.e., the difference between the new sentence and the original sentence) (see Anderson at para 32 (5)). [ 22 ] These factors are to be used to assist the court in balancing the applicable purposes, objectives and principles of sentencing so as to end up with a disposition that is compatible with the overall purpose of contributing to respect for the law and the maintenance of a just and safe society (see Anderson at para 33 ). [ 23 ] While the Crown concedes that there is no jurisdictional barrier to staying the remainder of a custodial sentence following an unsuccessful sentence appeal by an accused, it submits that there should be exceptional circumstances that warrant such an extraordinary remedy.

It points to the use of such language as “exceptional circumstances”, “unusual circumstances” and “special circumstances” that have been used in the cases (see, for example, R v Sinclair , 2012 MBCA 24 at para 21 ). For example, the COVID- 19 pandemic figures prominently in several cases where a stay was ordered after an unsuccessful sentence appeal by an accused (see R v Thorassie , 2021 MBCA 37 ; and R v Elias , 2021 NWTCA 2 ). [ 24 ] Furthermore, it argues that there are good policy reasons why those instances should be rare.

It contends that, if the considerations on reincarceration after an unsuccessful accused appeal are not stringent, it potentially opens the floodgates to accused appealing their sentences and applying for bail in hopes that, by the time the appeal is heard, their time in the community will outweigh the need to serve a fit sentence. [ 25 ] In Beck v R , 2021 NBCA 33 , the Court stated (at para 52): To stay the execution of the sentence solely based on the fact that an appellant has been released pending appeal and should not be reincarcerated because it amounts to an inconvenience for the offender would create a dangerous precedent going forward.

This would undermine the public’s confidence in the administration of justice as well as this Court’s conclusion in Veysey that there is nothing inherently harsh or oppressive in reincarcerating an individual on appeal. [ 26 ] It is true that the question of reincarceration arises most often in the case of a successful Crown appeal.

In those situations, if the court finds that the sentence imposed at trial was unfit, it imposes what it considers a fit sentence, but then exercises its discretion to avoid the injustice of reincarcerating the offender who has served the original, or most of the original, sentence and gotten on with their life.

[ 27 ] In the case of an unsuccessful appeal by an accused, where the court has confirmed the original sentence as being fit, the question is fundamentally the same. How would the interests of justice best be served given the progress the offender has made since the original sentencing? [ 28 ] I do not agree that there must be exceptional circumstances before a stay of sentence can be granted in those circumstances. The test on a stay of sentence should be the same for successful Crown appeals and unsuccessful accused appeals.

A stay will not be granted simply because of the length of time that the offender has been released pending appeal. However, the offenders who appear before our courts for sentencing bring with them an extensive panoply of circumstances. A contextual and multi-factor analysis can weigh the issue of public safety more appropriately. [ 29 ] The cases cited by the Crown used a variety of language, including exceptional and special, but an analysis of their reasoning indicates a consideration and careful balancing of a number of factors.

Often the degree of rehabilitation achieved by the offender is given a significant amount of weight, but that does not necessarily lead to the conclusion that exceptional circumstances must be present.

In some cases, no mention of special or exceptional circumstances are noted (see R v Braun , 2023 MBCA 4 ; R v Gray , 2021 ONCA 86 ; Thorassie ; R v Siwicki , 2019 MBCA 104 ; Anderson ; and McMillan ). [ 30 ] What is being considered is whether, given the degree of rehabilitation achieved, reincarceration will disrupt that rehabilitation and, therefore, be detrimental to the ends of justice and serve no genuine societal interest.

Where an offender has been released into the community pending appeal, it sometimes provides the appellate court an ability to assess the effectiveness of the portion of the already served sentence through the offender’s conduct while in the community (see Braun ; Gray ; and R v Lancaster , 2021 ONCA 184 at paras 3-7 ). [ 31 ] The accused remains a sympathetic individual because of his personal circumstances. However, the offences he committed were very serious and involved the discharging of an unlicenced, loaded restricted firearm in a family residence.

The accused was not an immature first offender at the time of the offences. The PSR indicated he was a medium risk to reoffend. [ 32 ] Further, given that the accused has a 26-year history of substance abuse issues and argued that the offences were only committed because of his addiction, the steps he has taken, while positive, fall short of being sufficient to ensure that he does not remain a risk to public safety.

He relapsed once after treatment in 2016 at the Addiction Foundation of Manitoba and the PSR indicates he is at an increased risk for relapse once out in the community. [ 33 ] For a person who has a lengthy history of substance abuse and who argued that it was the basis for his criminal behaviour, his decision to forgo additional formal treatment beyond what he has already done is questionable. This is so especially since he indicated in the PSR that he intended to connect with addiction services in the community and has not done so.

The BHF indicated they were willing to provide any support necessary to aid in his continued rehabilitation, such as access to its outreach services. As well, there are addiction support services available in Brandon where he presently resides. [ 34 ] Despite the issue being raised by the Court, I have been persuaded by the Crown that this is not an appropriate case to stay the execution of the sentence. CONCLUSION [ 35 ] The sentencing judge turned his mind to the appropriate principles. His assessment of moral culpability was reasonable based on the serious nature of the offences and the accused’s background.

I see no material error in the sentencing judge’s analysis and his application of Gladue to this case. Appellate intervention would be inappropriate. Nor, given the above reasons, would I stay the sentence. [ 36 ] The appeal is dismissed. JA I agree: JA I agree: JA