R. v. Dick (K.D.), 2015 MBCA 47

• Judge: Steel, Beard and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 27, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 47;(2015), 319 Man.R.(2d) 53 (CA)

R. v. Dick (K.D.) (2015), 319 Man.R.(2d) 53 (CA);

      638 W.A.C. 53

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.015

Her Majesty The Queen (respondent) v. Keagan Denzel Dick (accused/appellant)

(AR 14-30-08261; 2015 MBCA 47)

Indexed As: R. v. Dick (K.D.)

Manitoba Court of Appeal

Steel, Beard and Cameron, JJ.A.

April 27, 2015.

Summary:

The 20 year old Aboriginal accused got into an argument with the victim during an attempted drug transaction. The accused struck the victim on the side of his face, causing the victim to fall and hit his head on the pavement. The victim later died in hospital as a result of blunt force trauma to the head. The accused pleaded guilty to manslaughter.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 309 Man.R.(2d) 216, sentenced the accused to seven years' imprisonment, less two years and two months for time already served. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - Dick pled guilty to manslaughter - Following sentencing submissions, defence counsel read a written apology which Dick had purportedly prepared with the assistance of his case manager and a fellow inmate - The trial judge was sceptical that the apology consisted of Dick's words, since the sophistication of the vocabulary did not match Dick's reduced level of intellectual functioning - The trial judge refused defence counsel's offer to contact the case manager for more information regarding the preparation of the apology - She found that the apology was a sham attempt to demonstrate remorse - Dick appealed his sentence, arguing that the trial judge erred in her conclusion regarding the preparation of the written apology, and by placing too much weight on lack of remorse - The Manitoba Court of Appeal dismissed the appeal - It would have been better if the trial judge had permitted defence counsel to speak to the case manager to clear up the details of the apology's preparation - However, there was evidence to support the trial judge's finding that Dick did not write the apology and that his remorse was not genuine - It would also have been an error if the trial judge had treated lack of remorse as an aggravating factor, but it was not clear that this occurred - It was more likely that she saw the "sham" as an attempt to mislead the court, which was appropriately considered an aggravating factor in sentencing - See paragraphs 9 to 21.

Criminal Law - Topic 5882

Sentence - Manslaughter - An argument broke out during an attempted drug transaction between Dick, Bjornson and a third unidentified male - Dick struck Bjornson on the side of his face - Bjornson fell and hit his head on the pavement - Dick and the third male ran off - Bjornson got up, stumbled and fell down several more times, hitting his head - He died in hospital one week later - Dick pled guilty to manslaughter - Dick was a 20 year old Aboriginal - Chaotic childhood - Began abusing alcohol and drugs at age 12 - Gang member - High risk to re-offend - Extensive criminal record with convictions for weapons offences, assaults, breaches and thefts - On bail and probation at the time of the attack, and continued his assaultive behaviour against others within days of Bjornson's death - The trial judge stated that she was inclined to sentence Dick to eight years' imprisonment, but she reduced the sentence to seven years to account for some of the Gladue factors that were identified in the pre-sentence report - The Manitoba Court of Appeal held that the trial judge erred in the manner in which she considered the Gladue factors - Gladue factors were not to be considered as an automatic race-based deduction from an otherwise fit sentence - Instead, they were to be considered as a mitigating circumstance in determining the appropriate sentence for the offence and the offender - However, this error did not affect the sentence - Seven years was a fit sentence in this case - See paragraphs 22 to 31.

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, refd to. [para. 2].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 8].

R. v. Basov (D.V.) (2015), 315 Man.R.(2d) 222; 630 W.A.C. 222; 2015 MBCA 22, refd to. [para. 15].

R. v. Wishlow (A.C.) (2013), 291 Man.R.(2d) 149; 570 W.A.C. 149; 2013 MBCA 34, refd to. [para. 19].

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 24].

R. v. C.T.H. (2015), 315 Man.R.(2d) 56; 630 W.A.C. 56; 2015 MBCA 4, refd to. [para. 25].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 30].

Counsel:

S.J. Soldier, for the appellant;

A.Y. Kotler, for the respondent.

This appeal was heard on April 27, 2015, before Steel, Beard and Cameron, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following judgment for the court on the same date.