R. v. Atkinson (R.K.) et al., (2015) 315 Man.R.(2d) 51 (CA)

• Judge: Monnin, Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 07, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 315 Man.R.(2d) 51 (CA);2015 MBCA 2

R. v. Atkinson (R.K.) (2015), 315 Man.R.(2d) 51 (CA);

      630 W.A.C. 51

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.021

Her Majesty The Queen (respondent) v. David Steven Chartrand (accused/appellant)

(AR 14-30-08122; 2015 MBCA 2)

Indexed As: R. v. Atkinson (R.K.) et al.

Manitoba Court of Appeal

Monnin, Steel and Hamilton, JJ.A.

January 7, 2015.

Summary:

Atkinson, C. Spence, Q. Spence and Chartrand were charged with assault causing bodily harm and assault with a weapon. C. Spence pleaded guilty to assault causing bodily harm and mischief. Atkinson, Q. Spence and Chartrand pleaded self-defence. The incident occurred prior to March 11, 2013, when the existing Criminal Code self-defence provisions (ss. 34 to 37) were repealed and replaced with the new self-defence provision (s. 34). The three accused argued that the new s. 34 applied retrospectively. The Crown argued that it applied prospectively.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 298, held that the new s. 34 applied retrospectively. The court found Atkinson guilty of both assault causing bodily harm and assault with a weapon. Q. Spence and Chartrand were found guilty of assault causing bodily harm and not guilty of assault with a weapon. The accused did not act in self-defence. The matter proceeded to sentencing.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 301 Man.R.(2d) 309, sentenced Q. Spence to three years' imprisonment, less 318 days' credit for presentence custody. C. Spence was sentenced to 30 months' imprisonment for assault causing bodily harm and six months concurrent for mischief with credit on a 1:1 basis for any presentence custody. C. Spence was ordered to make restitution in favour of the Northern Hotel in the sum of $1,000 for damage to a VLT machine. Atkinson was sentenced to five years' imprisonment for assault causing bodily harm with credit for 2.5 years already served. The assault with a weapon conviction was conditionally stayed on the Kienapple principle. Chartrand was sentenced to nine months' imprisonment to be followed by two years of probation. The court made DNA orders and ordered weapons prohibitions regarding all four accused. Additionally, the court made a joint and several restitution order against all four accused in the sum of $1,200 in favour of the victim. Atkinson applied for leave to appeal from his sentence on the basis of an alleged disparity between his sentence and those of his co-accused.

The Manitoba Court of Appeal, in a decision reported at (2015), 310 Man.R.(2d) 310; 618 W.A.C. 310, dismissed the application. Chartrand appealed from his conviction for assault causing bodily harm and from his sentence.

The Manitoba Court of Appeal dismissed the conviction appeal. The court allowed the sentence appeal, substituting a sentence of five months (time served). The two year probation order remained in place.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See Criminal Law - Topic 1417 ].

Criminal Law - Topic 1417

Offences against person and reputation - Assaults - Assault causing bodily harm - The accused was convicted of assault causing bodily harm after a bar brawl - Three co-accused were also convicted - The trial judge relied primarily on a videotape of the assault - He rejected the accused's argument that he was only attempting to pull one of the other assailants off of the victim, finding that, while the accused might not have actually struck the victim, he had provided support to the other assailants and had helped pull the victim to the floor at the beginning of the assault - The accused appealed from the conviction, asserting that the verdict was not reasonable and was not adequately explained in the judge's reasons - The Manitoba Court of Appeal dismissed the appeal - The test for appellate intervention on the basis of an unreasonable verdict was whether, on the evidence as a whole, the verdict was one that a properly instructed trier of fact could reasonably have rendered - The standard of review regarding reasons was a standard of adequacy - The trial judge's findings of fact were supported by the evidence - In the context of the evidence and counsel's submissions, the reasons were sufficient - There were no grounds for intervention - See paragraphs 1 to 7.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 1417 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 1417 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused was convicted of assault causing bodily harm after a bar brawl - Three co-accused were also convicted - The accused was sentenced to nine months' imprisonment, followed by two years of probation - The Manitoba Court of Appeal allowed the accused's appeal from the sentence, substituting a sentence of five months (time served) - The trial judge did not give adequate consideration to s. 718.2(e) of the Criminal Code and the Gladue factors - Of the individuals who participated in the assault, the accused was the least involved - He had no previous record for violence and no criminal involvement for the previous six years - He was co-parenting a child, had a positive employment reference and presentence report and had been accepted into a training program that was beginning shortly - Allowing the accused to begin his educational program and continue to turn his life around was in keeping with the Gladue and Ipeelee principles - See paragraphs 8 to 12.

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5846.1 ].

Cases Noticed:

R. v. Flores (R.B.) (2013), 288 Man.R.(2d) 173; 564 W.A.C. 173; 2013 MBCA 4, refd to. [para. 4].

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. 8].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 8].

Counsel:

M.S. Bright, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on January 7, 2015, by Monnin, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. On the same date, Steel, J.A., delivered the following decision for the court.