R. v. Ali (M.O.), (2015) 319 Man.R.(2d) 298 (CA)

• Judge: Monnin, MacInnes and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 16, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 319 Man.R.(2d) 298 (CA);2015 MBCA 64

R. v. Ali (M.O.) (2015), 319 Man.R.(2d) 298 (CA);

      638 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JL.008

Her Majesty The Queen (respondent) v. Mahmud Osman Ali (accused/appellant)

(AR 14-30-08263; 2015 MBCA 64)

Indexed As: R. v. Ali (M.O.)

Manitoba Court of Appeal

Monnin, MacInnes and Mainella, JJ.A.

June 25, 2015.

Summary:

The accused was convicted of two counts of dangerous operation of a motor vehicle causing bodily harm. He was sentenced to nine months' imprisonment and a three-year driving prohibition. The accused appealed his sentence.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5848.7 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - The Manitoba Court of Appeal stated that "Synchronously operating a motor vehicle and a hand-operated electronic device is dangerous and highly blameworthy conduct that can result in significant criminal consequences for otherwise law-abiding motorists. Simply put, mobile phones and other like gadgets do not belong in a driver's hand. The public interest requires motorists to resist the temptation to talk, text or otherwise become distracted to ensure that our streets do not resemble battlefields. Cases of dangerous driving, like this one, which result in significant injuries to a third party and are caused by a motorist being purposefully distracted because of use of a hand-operated electronic device, require that the primary sentencing considerations be denunciation and general deterrence even for sympathetic first-time offenders, with good driving records, who, like the appellant, are considered by probation services to be remorseful and a 'very low risk to re-offend'" - See paragraph 8.

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - The Manitoba Court of Appeal stated that "The 'collateral consequences' to a person's immigration status by a criminal conviction is a relevant factor to be considered in imposing a sentence ... In a multi-cultural society such as Canada, who is, and who is not a citizen, can only be ascertained by direct inquiry. Our expectation, to avoid situations like that which occurred here, where an offender's immigration status is not considered by the sentencing judge in an appropriate matter, is that, in cases of 'serious criminality', counsel will, as a matter of routine, put an offender's immigration status before the court as background information as is currently done with respect to an offender's age or criminal record ... Failing that, the sentencing judge should inquire about an offender's immigration status in cases of "serious criminality", on his or her motion" - See paragraph 12.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See Criminal Law - Topic 5834.8 ].

Criminal Law - Topic 5865.1

Sentence - Dangerous driving causing death or bodily harm - The accused, a 49-year-old permanent resident of Canada, originally from Somalia, was convicted of two counts of dangerous operation of a motor vehicle causing bodily harm - He drove through a busy intersection crossing six lanes of traffic while talking on his cell phone - Another vehicle collided with the accused's vehicle causing his vehicle to careen sideways into two pedestrians - The pedestrians were both knocked unconscious and received significant injuries - "No previous criminal record, a large family and many other compelling personal antecedents" - He was sentenced to nine months' imprisonment and a three-year driving prohibition - The accused appealed his sentence - The Manitoba Court of Appeal dismissed the appeal - The sentence was not demonstratively unfit - See paragraphs 1 to 8.

Cases Noticed:

R. v. Eckert (J.J.) (2005), 201 Man.R.(2d) 175; 366 W.A.C. 175; 2006 MBCA 6, refd to. [para. 6].

R. v. Wallace (B.K.) (2012), 280 Man.R.(2d) 209; 548 W.A.C. 209; 2012 MBCA 54, refd to. [para. 6].

R. v. O'Keefe (G.M.) (2011), 309 Nfld. & P.E.I.R. 253; 962 A.P.R. 253; 2011 NLCA 41, refd to. [para. 7].

R. v. Rawn (H.A.-M.) (2012), 294 O.A.C. 261; 2012 ONCA 487, refd to. [para. 7].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 10].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Ly (T.Q.), [2013] 1 S.C.R. 739; 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 12].

R. v. Martinez-Marte (E.A.), [2008] B.C.A.C. Uned. 37; 2008 BCCA 136, refd to. [para. 24].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 36(1) [para. 9].

Counsel:

I.L. Singh, for the appellant;

R.D. Lagimodière, for the respondent.

This appeal was heard on June 16, 2015, before Monnin, MacInnes and Mainella, JJ.A., of the Manitoba Court of Appeal. The decision of the court was pronounced on June 16, 2015, with the following written reasons delivered for the court by Mainella, J.A., on June 25, 2015.