R. v. Charlette (J.J.), 2015 MBCA 32

• Judge: Hamilton, Monnin and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 09, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 32;(2015), 319 Man.R.(2d) 4 (CA)

R. v. Charlette (J.J.) (2015), 319 Man.R.(2d) 4 (CA);

      638 W.A.C. 4

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.023

Her Majesty The Queen (respondent) v. John Junior Charlette (accused/appellant)

(AR 13-30-08089; 2015 MBCA 32)

Indexed As: R. v. Charlette (J.J.)

Manitoba Court of Appeal

Hamilton, Monnin and Mainella, JJ.A.

April 7, 2015.

Summary:

The accused, an aboriginal person, was convicted of robbery, two counts of assaulting a peace officer with a weapon, and possessing a weapon dangerous to the public peace. The victim of the robbery was a taxi driver. The weapon used in the robbery was a knife. The accused was sentenced to 62 and one-half months on a go-forward basis, after receiving credit on a 1:1 basis for 21 and one-half months of pre-sentence custody. The accused appealed his robbery conviction, arguing that the trial judge erred in finding that the Crown had proven beyond a reasonable doubt that he had the specific intent to steal because his intent was to commit "suicide by cop". He claimed that the robbery conviction should be set aside and substituted with a conviction for assault with a weapon. He also applied for leave to appeal his sentence, arguing that the global sentence was harsh and excessive because the trial judge failed to give sufficient weight to the applicable Gladue factors and his state of mind at the time he committed the offences.

The Manitoba Court of Appeal dismissed the conviction and sentence appeal, except for a clarification to the 62 and one-half month go-forward total sentence.

Criminal Law - Topic 1721

Offences against property - Robbery - Intention or mens rea - The accused was convicted of robbery for attempting to take money from a taxi driver at knife point - The accused appealed, arguing that the trial judge erred in finding that he had the specific intent to steal when his actual intent was to commit "suicide by cop" - He claimed that the trial judge erred in finding that he only decided to commit suicide after the robbery "went off the rails" - He claimed that it was illogical for the trial judge to dissect the evidence on when he was suicidal into discrete time frames - The Manitoba Court of Appeal dismissed the appeal - The fact that the trial judge accepted that the accused became suicidal after the robbery was not illogical to the judge's finding of intent to rob at an earlier point in time - See paragraphs 15 to 18.

Criminal Law - Topic 1726

Offences against property - Robbery - What constitutes - [See Criminal Law - Topic 1721 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused, an aboriginal person, appealed his sentence, arguing that the trial judge erred in considering the Gladue factors at the end of his analysis in conjunction with his consideration of totality - The Manitoba Court of Appeal rejected this ground of appeal - The trial judge addressed the accused's mental health early in his reasons and acknowledged that the sentencing analysis was different for aboriginal offenders - He also considered the Gladue factors when considering the aggravating factors - The reference to "the rather unusual Gladue factors here" at the end of the trial judge's reasons in conjunction with his reference to "totality" was not an error in principle, rather it demonstrated that the judge was considering the accused's personal circumstances one last time to ensure that the sentence imposed was not "a crushing sentence", as required by the principle of totality - See paragraphs 28 to 34.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - The Manitoba Court of Appeal discussed the sentencing principles applicable on sentencing for robbery where the victim was a taxi driver - The court stated, inter alia, that "...  the range of two to four years for a first offender is a fair statement of the sentencing jurisprudence for robbery of a taxi driver when armed with a weapon. In other words, the starting point for a judge's analysis when sentencing an offender with no previous criminal record for robbery of a taxi driver when armed with a weapon is a sentence between two and four years, depending on the circumstances of the offence and the offender, unless there are mitigating factors that call for an emphasis on rehabilitation rather than deterrence, denunciation and protection of the public" - See paragraphs 36 to 46.

Criminal Law - Topic 5849.28

Sentencing - Considerations on imposing sentence - Vulnerability of victims (incl. taxi drivers) - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused, a 30 year old aboriginal person, attempted to steal money from a taxi driver at knife point - He also threatened a police officer with the knife during his arrest - He was convicted of robbery, two counts of assaulting a peace officer with a weapon and possessing a weapon dangerous to the public peace - Tragic background - High risk to re-offend - Lengthy criminal record - He was sentenced to a go-forward total sentence of 62 and one-half months, after credit for pre-sentence custody - He appealed his sentence, arguing that the sentence was harsh and excessive because the trial judge erred in considering the Gladue factors - The Manitoba Court of Appeal dismissed the appeal - The trial judge properly considered the Gladue factors and the sentence was not unfit - See paragraphs 35 to 55.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5894

Sentence - Assaulting a police officer or peace officer - [See Criminal Law - Topic 5855 ].

Cases Noticed:

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; 133 C.C.C.(3d) 385; 23 C.R.(5th) 197; 171 D.L.R.(4th) 385; [1999] 2 C.N.L.R. 252, refd to. [para. 5].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 15].

R. v. Chiang (M.) (1999), 130 B.C.A.C. 22; 211 W.A.C. 22; 1999 BCCA 503, refd to. [para. 17].

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. 21].

R. v. C.T.H. (2015), 315 Man.R.(2d) 56; 630 W.A.C. 56; 2015 MBCA 4, refd to. [para. 27].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 27].

R. v. Kozussek (S.A.), [2013] Man.R.(2d) Uned. 30; 2013 MBCA 52, refd to. [para. 33].

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 33].

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. 34].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 34].

R. v. Iwaniw; R. v. Overton (1959), 127 C.C.C. 40 (Man. C.A.), refd to. [para. 37].

R. v. Crane, [1986] B.C.J. No. 904, refd to. [para. 37].

R. v. Edstrom (B.J.) (2005), 209 B.C.A.C. 129; 345 W.A.C. 129; 2005 BCCA 105, refd to. [para. 37].

R. v. Dankewich (R.A.) (2005), 220 B.C.A.C. 133; 362 W.A.C. 133; 2005 BCCA 629, refd to. [para. 37].

R. v. Butler (D.A.) (2008), 270 N.S.R.(2d) 225; 865 A.P.R. 225; 239 C.C.C.(3d) 97; 2008 NSCA 102, refd to. [para. 37].

R. v. Keast, [1980] O.J. No. 854 (C.A.), refd to. [para. 37].

R. v. Wiberg (C.A.) (1997), 158 Sask.R. 246; 153 W.A.C. 246 (C.A.), refd to. [para. 37].

R. v. Park (1974), 6 N.S.R.(2d) 430 (C.A.), refd to. [para. 37].

R. v. Crossman (1981), 44 N.S.R.(2d) 174; 83 A.P.R. 174 (C.A.), refd to. [para. 37].

R. v. Wright (P.S.) (2002), 303 A.R. 371; 273 W.A.C. 371; 2002 ABCA 170, refd to. [para. 37].

R. v. Johnas et al. (1982), 41 A.R. 183 (C.A.), refd to. [para. 41].

R. v. Mentuck, [1987] M.J. No. 327 (C.A.), refd to. [para. 42].

R. v. Benn (1985), 36 Man.R.(2d) 113 (C.A.), refd to. [para. 42].

R. v. Pavez (F.) (1996), 113 Man.R.(2d) 244; 131 W.A.C. 244 (C.A.), refd to. [para. 42].

R. v. Berens, 2012 CarswellMan 766, refd to. [para. 45].

R. v. Maygard (J.D.) (2013), 553 A.R. 266; 583 W.A.C. 266; 2013 ABCA 214, refd to. [para. 47].

R. v. Reader (M.) (2008), 225 Man.R.(2d) 118; 419 W.A.C. 118; 2008 MBCA 42, refd to. [para. 54].

Authors and Works Noticed:

Ruby, Clayton, Ruby on Sentencing (8th Ed. 2012), para. 23.376 [para. 40].

Counsel:

J.L. Ostapiw, for the appellant;

N.P. Steen, for the respondent.

This appeal was heard on December 9, 2014, before Hamilton, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Hamilton, J.A., on April 7, 2015.