R. v. Anderson (T.), 2015 MBCA 30

• Judge: Chartier, C.J.M., Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 23, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 30;(2015), 315 Man.R.(2d) 301 (CA)

R. v. Anderson (T.) (2015), 315 Man.R.(2d) 301 (CA);

      630 W.A.C. 301

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.016

Her Majesty The Queen (respondent) v. Thomas MacKenzie Leo Gordon Anderson (young person/appellant)

(AY 14-30-08119; 2015 MBCA 30)

Indexed As: R. v. Anderson (T.)

Manitoba Court of Appeal

Chartier, C.J.M., Monnin and Cameron, JJ.A.

April 2, 2015.

Summary:

A young person pled guilty under the Youth Criminal Justice Act (YCJA) to one count of aggravated sexual assault and to one count of housebreak, enter and commit robbery. At the time of the commission of the offences, he was three months shy of his 18th birthday. The Crown applied under s. 64 of the YCJA for an order that an adult sentence be imposed on him. The sentencing judge granted the order and imposed an adult sentence of 10 years' imprisonment, apportioned as three years for the housebreak, enter and commit robbery and seven years consecutive for the charge of aggravated sexual assault. He then credited the young person on a 1:1 basis for 773 days of pre-sentence custody. The young person applied for leave to appeal and, if granted, appealed the sentence, arguing that the judge was wrong to impose an adult sentence, and that the adult sentence imposed was harsh and excessive.

The Manitoba Court of Appeal granted leave to appeal and allowed the appeal in part. The court denied the young person's request to set aside the adult sentence, but varied the term of imprisonment from 10 to eight years concurrent on both counts. The young person was given enhanced credit for time served on a 1.5:1 basis, totalling three years and two months.

Editor's Note: The following Notice of Restriction on Publication appeared on the cover of this judgment: "Pursuant to s. 110(2)(a) of the Youth Criminal Justice Act, the prohibition on publication set out in s. 110(1) does not apply when the young person received an adult sentence."

Criminal Law - Topic 5851

Sentence - Break and enter - [See first Criminal Law - Topic 8817.8 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See first Criminal Law - Topic 8817.8 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Manitoba Court of Appeal stated that the decision to impose an adult sentence on a young person was governed by the same standard of review as a sentence appeal for an adult - See paragraph 9.

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence - A young person, who was almost 18, pled guilty to one count of aggravated sexual assault and to one count of housebreak, enter and commit robbery - He broke into a home and beat and sexually assaulted the 27 year old victim - Related record - High risk to reoffend - An adult sentence of 10 years' imprisonment was imposed - The young person appealed, arguing that the judge was wrong to impose an adult sentence, and that the adult sentence imposed was harsh and excessive - The Manitoba Court of Appeal held that there was no basis on which to interfere with the imposition of an adult sentence - However, the court varied the term of imprisonment from 10 to eight years concurrent on both counts - The sentencing judge erred in using a 15 year starting point.

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence - [See Criminal Law - Topic 6201 ].

Cases Noticed:

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 9].

R. v. C.T.H. (2015), 315 Man.R.(2d) 56; 630 W.A.C. 56; 2015 MBCA 4, refd to. [para. 9].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 9].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 9].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 9].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 9].

R. v. A.O. et al. (2007), 222 O.A.C. 38; 84 O.R.(3d) 561; 218 C.C.C.(3d) 409; 2007 ONCA 144 (C.A.), refd to. [para. 11].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 22].

R. v. Pakoo (K.G.), [2004] 9 W.W.R. 414; 190 Man.R.(2d) 133; 335 W.A.C. 133; 25 C.R.(6th) 277; 198 C.C.C.(3d) 122; 2004 CarswellMan 461; 2004 MBCA 157, refd to. [para. 26].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 26].

R. v. Gee, [1982] 2 S.C.R. 286; 43 N.R. 128; 38 A.R. 106, refd to. [para. 26].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259; 19 C.C.C.(2d) 129; 50 D.L.R.(3d) 753; 27 C.R.N.S. 325; [1975] 1 W.W.R. 209, refd to. [para. 28].

R. v. McCowan (K.J.) (2010), 251 Man.R.(2d) 295; 478 W.A.C. 295; 2010 MBCA 45, refd to. [para. 29].

R. v. Arbuthnot (S.M.) (2009), 245 Man.R.(2d) 244; 466 W.A.C. 244; 2009 MBCA 106, refd to. [para. 31].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 33].

Counsel:

A.L. Sansregret and K.I. Dowle, for the appellant;

C.R. Savage, for the respondent.

This appeal was heard on February 23, 2015, before Chartier, C.J.M., Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court, on April 2, 2015, by Charter, C.J.M.