R. v. Laboucane (J.W.), 2016 ABCA 176

• Judge: Watson, Wakeling and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 17, 2016
• Citations: 2016 ABCA 176;[2016] A.R. TBEd. JN.037

R. v. Laboucane (J.W.), [2016] A.R. TBEd. JN.037

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JN.037

Her Majesty the Queen (respondent) v. Jody Wade Laboucane (appellant)

(1503-0242-A; 2016 ABCA 176)

Indexed As: R. v. Laboucane (J.W.)

Alberta Court of Appeal

Watson, Wakeling and Schutz, JJ.A.

June 10, 2016.

Summary:

On January 4 and 5, 2015, the accused, an aboriginal person, committed several offences. Before trial, he pled guilty to assault on a cabdriver, possession of a stolen taxicab, and refusing to provide a breath sample. A trial was held on the remaining counts and the accused was further convicted of one count of break and enter and commit assault, one lesser offence of assault, and an uttering threats offence. He was sentenced to two years' imprisonment less credit for time served. DNA and discretionary firearms orders were also issued. The accused appealed, seeking a reduction in sentence to time served.

The Alberta Court of Appeal dismissed the appeal. The sentence was not clearly unreasonable.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused appealed his sentence for a number of offences, arguing that the sentencing judge failed to consider the fact that the offences were a "spree" because the three assaults occurred over the span of 12 hours - The Alberta Court of Appeal dismissed the appeal - The court noted that this was not the typical type of spree where the individual offences amount to a continuing transaction, that might invite consideration of concurrent sentences - Rather, the attacks occurred at different times, in different places, and after the offender had taken a drive - They were neither causally or temporally connected, had no common factual nexus, and arose out of disconnected, discrete circumstances - The sentencing judge was therefore correct to impose consecutive sentences for assaults involving different people - See paragraphs 81 to 86.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The Alberta Court of Appeal stated that "... deployment of the word 'spree' is itself largely inappropriate for crimes of violence and generally has been used only for property crimes by the young. This is not just semantics. As said by the Manitoba Court of Appeal in R v. C(D) ... 'As a word for these crimes, "spree" trivializes them and is plainly not a proper term to use.'" - See paragraph 83.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See first Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Alberta Court of Appeal reviewed the principles governing the sentencing of Aboriginal offenders and whether and how the Gladue principles applied - See paragraphs 50 to 72 - The court stated that "Our core conclusion is that where Gladue factors are identified, these factors will not dictate an automatic reduction in the sentence to be served by an Aboriginal offender. To find otherwise would strike at the very heart of Parliament's intention that a sentencing judge shall consider all sentencing principles, objectives and factors in devising a sentence faithful to the principle of proportionality, the sine qua non of a just sanction. Proportionality is 'intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions.' An appellate court must be satisfied 'that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender' ..." - See paragraphs 2 and 3.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Alberta Court of Appeal reviewed the principles governing the sentencing of Aboriginal offenders and whether and how the Gladue principles applied - See paragraphs 50 to 72 - The court stated that "Our broader aim is to provide helpful guidance to the Alberta bench and bar when considering Gladue principles and the interrelationship of Gladue principles with other sentencing principles and objectives set out in the Criminal Code. In furtherance of this aim, we urge front line judges, when sentencing Aboriginal offenders, to be ever mindful of two fundamental and inter-related obligations: the first obligation is to carefully consider Gladue factors in all Aboriginal sentencing cases unless the offender expressly waives the right to have Gladue factors considered ...; the second obligation is to provide transparent and understandable reasons – amenable to appellate review – as to whether, and how, identified Gladue factors impacted the creation of a just sanction for that particular offence and that particular offender" - See paragraphs 4 and 5.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - On sentencing an aboriginal accused on a number of offences, the judge indicated that she had reviewed a Gladue report, but opined that there were no meaningful Gladue factors to be considered on sentencing - The judge noted that the accused grew up with a loving and supportive family - He was not exposed to familial substance abuse or domestic violence - His family followed "mainstream practices" and his father, his only indigenous parent, was not raised in the Métis culture - None of his family grew up in residential schools - The accused appealed his sentence, arguing that the sentencing judge erred in applying the Gladue principles - The Alberta Court of Appeal dismissed the appeal - The sentencing judge did not fail to give attention to the Gladue report or to Gladue principles - The sentencing judge did not erroneously ignore, diminish, or lessen the effect or influence of s. 718.2(e) of the Criminal Code in reaching her conclusion; rather her approach was entirely consistent with Ipeelee - She did not fail to give attention to Gladue principles; rather, she gave careful consideration to the Gladue factors presented for this particular Aboriginal offender and considered those factors in the necessary context - No reversible error was committed in respect of the mandated application of Gladue principles to the identified Gladue factors - See paragraphs 25 to 80.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The accused committed a number of offences in a 12 hour span - Before trial, he pled guilty to assault on a cabdriver, possession of a stolen taxicab, and refusing to provide a breath sample - A trial was held on the remaining counts and the accused was further convicted of one count of break and enter and commit assault, one lesser offence of assault, and an uttering threats offence - A global sentence of two years' imprisonment was imposed, less credit for time served - The accused appealed, arguing that the sentence was demonstrably unfit - The Alberta Court of Appeal dismissed the appeal - The sentence was not clearly unreasonable - See paragraphs 87 to 95.

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or goods obtained by crime - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5887

Sentence - Failure to provide a breath or blood sample - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5861 ].

Counsel:

M.J. McGuire, for the respondent;

D.R. Hatch and S.M. Christensen-Moore, for the appellant.

This appeal was heard in Edmonton, Alberta, on May 17, 2016, before Watson, Wakeling and Schutz, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court on June 10, 2016.