R. v. Malcolm (N.E.R.), 2015 MBCA 75

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Marc M. Monnin, J.A.
• Citation: 2015 MBCA 75,(2015), 323 Man.R.(2d) 52 (CA)
• Date: 16 July 2015

R. v. Malcolm (N.E.R.) (2015), 323 Man.R.(2d) 52 (CA);

      657 W.A.C. 52

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.006

Her Majesty The Queen (respondent) v. Neil Edward Ross Malcolm (accused/appellant)

(AR 15-30-08414; 2015 MBCA 75)

Indexed As: R. v. Malcolm (N.E.R.)

Manitoba Court of Appeal

Marc M. Monnin, J.A.

August 7, 2015.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking and possession of property obtained or derived as the result of the commission of an offence under the Controlled Drugs and Substances Act. As a result of a plea bargain negotiated by the accused's counsel, the Crown stayed the prosecution of the first charge, the accused pleaded guilty to an amended second count which reduced the amount of funds allegedly held to less than $5,000, and a joint recommendation was made for a 21 month conditional sentence. At the time of sentencing, the accused was representing himself.

The trial judge accepted the joint recommendation and sentenced the accused to a 21 month conditional sentence. The accused applied for leave to appeal the sentence and sought judicial interim release pending the appeal. The accused asserted that the trial judge erred by failing to (1) make the necessary inquiries of the accused respecting his circumstances and background, including failing to require a Gladue report or take into account Gladue considerations; and (2) properly direct or advise the accused as a self-represented litigant with respect to that consideration.

The Manitoba Court of Appeal, per Monnin, J.A., denied leave to appeal. It was unnecessary to consider the application for judicial interim release.

Courts - Topic 589

Judges - Duties - To self-represented party - Plea bargain or joint submission - Effect of - The accused was charged with possession of cocaine for the purpose of trafficking and possession of property obtained or derived as the result of the commission of an offence under the Controlled Drugs and Substances Act - As a result of a plea bargain negotiated by the accused's counsel, the Crown stayed the first charge, the accused pleaded guilty to an amended second count which reduced the amount of funds allegedly held to less than $5,000, and a joint recommendation was made for a 21 month conditional sentence - At the time of sentencing, the accused was representing himself - The trial judge accepted the joint recommendation and sentenced the accused accordingly - The accused applied for leave to appeal the sentence, asserting that the judge erred by failing to (1) make the necessary inquiries of the accused respecting his circumstances and background, including failing to require a Gladue report or take into account Gladue considerations; and (2) properly direct or advise the accused as a self-represented litigant with respect to that consideration - The Manitoba Court of Appeal, per Monnin, J.A., denied leave to appeal - The impact of any Gladue considerations were minimized by the true plea bargain - While the trial judge could have reached a different conclusion, there would have to have been cogent reasons for doing so - Such reasons were not set out in the material before the court - There was no arguable case that the sentence was unfit, especially as it resulted from a true plea bargain - While the length of the conditional sentence was on the higher side for a first time offender, it was not outside of the range, especially given the benefit to the accused of the more serious trafficking charge being stayed.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented (incl. representation by nonlawyer or agent) - [See Courts - Topic 589 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submis-sion - Effect of - [See Courts - Topic 589 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Courts - Topic 589 ].

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or goods obtained by crime - [See Courts - Topic 589 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Courts - Topic 589 ].

Cases Noticed:

R. v. Gill (J.S.), [2010] Man.R.(2d) Uned. 67; 2010 MBCA 92, refd to. [para. 4].

R. v. Green (J.R.) (2005), 249 Nfld. & P.E.I.R. 150; 743 A.P.R. 150; 2005 PESCAD 21, refd to. [para. 4].

R. v. Langlois (D.J.) (2008), 228 Man.R.(2d) 256; 427 W.A.C. 256; 2008 MBCA 72, refd to. [para. 4].

R. v. Amin (W.U.) (2010), 251 Man.R.(2d) 137; 478 W.A.C. 137; 2010 MBCA 15, 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. 5].

R. v. Marriott (A.G.) (2014), 343 N.S.R.(2d) 39; 1084 A.P.R. 39; 309 C.C.C.(3d) 305; 2014 NSCA 28, refd to. [para. 7].

R. v. Sinclair (E.J.) (2003), 184 Man.R.(2d) 1; 318 W.A.C. 1; 2004 MBCA 48, refd to. [para. 9].

R. v. Pashe (S.J.) (1995), 100 Man.R.(2d) 61; 91 W.A.C. 61 (C.A.), refd to. [para. 9].

R. v. Broekaert (D.D.) (2003), 170 Man.R.(2d) 229; 285 W.A.C. 229; 2003 MBCA 10, refd to. [para. 9].

R. v. Booh (I.) (2003), 170 Man.R.(2d) 249; 285 W.A.C. 249; 171 C.C.C.(3d) 108; 2003 MBCA 16, refd to. [para. 9].

Counsel:

K.J. Advent, for the appellant;

J.A. Hyman, for the respondent.

This application was heard in Chambers on July 16, 2015, by Marc M. Monnin, J.A., of the Manitoba Court of Appeal, who delivered the following judgment on August 7, 2015.