R. v. McKenzie-Sinclair (H.), (2015) 313 Man.R.(2d) 122 (PC)

• Judge: Krahn, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: January 21, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 313 Man.R.(2d) 122 (PC);2015 MBPC 5

R. v. McKenzie-Sinclair (H.) (2015), 313 Man.R.(2d) 122 (PC)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.007

Her Majesty The Queen v. Heather McKenzie-Sinclair (accused)

(2015 MBPC 5)

Indexed As: R. v. McKenzie-Sinclair (H.)

Manitoba Provincial Court

Krahn, P.C.J.

January 21, 2015.

Summary:

The 18 year old Aboriginal accused pleaded guilty to break, enter and theft. The offence was committed while she was on release conditions for other offences. Her release was cancelled and she was detained. The accused was therefore precluded from receiving enhanced credit for pre-trial custody by operation of s. 719(3.1) of the Criminal Code. She argued that s. 719(3.1) violated her ss. 7 and 15 Charter rights.

The Manitoba Provincial Court held that an appropriate sentence was 15 months' imprisonment followed by one year of supervised probation. Section 719(3.1) was constitutional. The accused was entitled to credit on a 1:1 basis for the 286 days (nine months and 11 days) that she spent in pre-trial custody. The court also deducted one month from the sentence to account for the 50 day adjournment that was required in order to consider the sentence and the constitutional arguments. The sentence on a go-forward basis was therefore five months and 20 days.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - While she was on release for other offences, the accused committed a break and enter - Her release was therefore cancelled and she was detained - As a result, s. 719(3.1) of the Criminal Code applied to preclude the accused from receiving enhanced credit for pre-trial custody - The accused argued that s. 719(3.1) violated her s. 7 Charter rights - She argued that her liberty interests were contravened, and that this was not in accordance with the principles of fundamental justice, including proportionality in the sentencing process - The Manitoba Provincial Court held that Parliament's choice to treat offenders like the accused differently than offenders who were denied bail for reasons other than their conduct while on release was a policy choice that could not be overturned as disproportionate - See paragraphs 74 to 94.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - While she was on release for other offences, the accused committed a break and enter - Her release was therefore cancelled and she was detained - As a result, s. 719(3.1) of the Criminal Code applied to preclude the accused from receiving enhanced credit for pre-trial custody - The accused argued that s. 719(3.1) violated her s. 7 Charter rights - She argued that her liberty interests were contravened, and that this was not in accordance with the principles of fundamental justice, including overbreadth - The Manitoba Provincial Court held that s. 719(3.1) was not overbroad - Its purposes (to withhold enhanced credit from those who breached their bail conditions or committed another indictable offence, and to provide a disincentive for offenders to serve their sentences in remand facilities where programming might be more limited) were rationally connected to its effect - See paragraphs 95 to 104.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - While she was on release for other offences, the accused committed a break and enter - Her release was therefore cancelled and she was detained - As a result, s. 719(3.1) of the Criminal Code applied to preclude the accused from receiving enhanced credit for pre-sentence custody (PSC) - The accused argued that s. 719(3.1) violated her s. 7 Charter rights - She argued that her liberty interests were contravened, and that this was not in accordance with the principles of fundamental justice, including gross disproportionality in the effects of the provision - The Manitoba Provincial Court held that credit on a 1:1 basis did not change the length of the sentence to one that was outside of the sentencing range - There were numerous legal protections, such as habeus corpus and bail review, that would prevent a grossly disproportionate sentence in the "reasonable hypotheticals" posed by the accused - The inability to consider the accused's Aboriginal background in crediting her PSC did not lead to a grossly disproportionate sentence -A sentencing judge had to consider a person's Aboriginal status in determining the appropriate sentence, but was not required, as a constitutional duty, to do so again determining credit for PSC - See paragraphs 105 to 131.

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - [See Civil Rights - Topic 8668 ].

Civil Rights - Topic 1038

Discrimination - Race and national or ethnic origin - Criminal matters - [See Civil Rights - Topic 8668 ].

Civil Rights - Topic 1127

Discrimination - Criminal and quasi-criminal law - Penalties - [See Civil Rights - Topic 8668 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle (incl. arbitrariness) - [See second Civil Rights - Topic 686 ].

Civil Rights - Topic 3802

Cruel and unusual treatment or punishment - General - Application - While she was on release for other offences, the accused committed a break and enter - Her release was therefore cancelled and she was detained - As a result, s. 719(3.1) of the Criminal Code applied to preclude the accused from receiving enhanced credit for pre-trial custody - She argued that s. 719(3.1) violated her s. 7 Charter rights because fundamental principles of justice were compromised - She argued that s. 719(3.1) was overbroad, grossly disproportionate and offended principles of proportionality and parity in sentencing - The Crown argued that the accused's claim was more properly addressed under s. 12 of the Charter, since it was really a complaint about the sentence being too long - The accused relied on the logic in R. v. Safarzadeh-Markhali (Ont. C.A., 2014), which found that the principle of proportionality that was part of s. 7 could be used to measure the constitutionality of the sentencing process , and the gross disproportionality test in s. 12 would apply to the result of the sentencing decision - The Manitoba Provincial Court stated "Given the state of the authorities at this time, I am prepared to accept [the accused's] submission that the reasoning in Safarzadeh-Markhali expanded the protection and scope of the protection that is now available to be argued under section 7." - See paragraphs 59 to 70.

Civil Rights - Topic 5502

Equality and protection of the law - General principles and definitions - Whether right to equality abridged - [See Civil Rights - Topic 8668 ].

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - Application - Proportionality test - [See third Civil Rights - Topic 686 and Civil Rights - Topic 3802 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 3802 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - While she was on release for other offences, the Aboriginal accused committed a break and enter - Her release was therefore cancelled and she was detained pursuant to s. 524(8) of the Criminal Code - As a result, s. 719(3.1) applied to preclude the accused from receiving enhanced credit for pre-trial custody - The accused argued that s. 719(3.1) violated her s. 15 Charter rights because it discriminated against her on the basis of race - She stated that she was more likely to be denied bail because of her disadvantaged background, and thus subject to lengthier sentences of imprisonment, which would continue to contribute to the over-representation of Aboriginal people in custody - The Manitoba Provincial Court found that there was no violation of s. 15 - Section 719(3.1) did not have an adverse effect on the accused based on enumerated or analogous grounds - All offenders who re-offended and were detained pursuant to s. 524(8) were treated the same by the provision - While Aboriginal people might be impacted more by the operation of the provision, this was a reflection of their social circumstances rather than the operation of s. 524(8) together with s. 719(3.1) - See paragraphs 132 to 141.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - An accused argued that her ss. 7 and 15 Charter rights were violated by the operation of s. 719(3.1) of the Criminal Code, which precluded her from receiving enhanced credit for pre-trial custody - The Manitoba Provincial Court considered the principles of judicial comity and stare decisis in light of the fact that Carlson, P.C.J., had already found that s. 719(3.1) violated ss. 7 and 15 in R. v. Bittern (Man. Prov. Ct., 2014) - The court concluded that it needed to reconsider the arguments regarding s. 719(3.1) because the validity of Bittern was impacted by a Yukon Court of Appeal decision (R. v. Chambers, 2014) that came to the opposite conclusion - A Supreme Court of Canada decision (R. v. Anderson, 2014) concluded that it was not a principle of fundamental justice that consideration of the offender's Aboriginal status was a constitutional duty under s. 7 - This decision also called into question the conclusions reached in Bittern - See paragraphs 43 to 55.

Courts - Topic 87

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Provincial courts - [See Courts - Topic 17 ].

Criminal Law - Topic 4490

Procedure - Trial - Publicity restrictions (incl. ban on publication of names) - Twenty days after turning 18, the accused committed a break and enter - She pleaded guilty - Counsel were invited to address the issue of whether s. 110 of the Youth Criminal Justice Act should apply to ban publication of the accused's criminal record since the bulk of it was a youth record - The Manitoba Provincial Court found that s. 110 was restricted by its wording to young persons under the Act - The accused was 18 when she committed the break and enter, and was no longer entitled to the benefit of non-publication of her youth criminal record - See paragraphs 35 to 42.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See first and third Civil Rights - Topic 686 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5842.1

Sentencing - Considerations on imposing sentence - Post-conviction, post-charge or post-discharge conduct - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See third Civil Rights - Topic 686 , Civil Rights - Topic 8668 and Criminal Law - Topic 5851 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See all Civil Rights - Topic 686 and Civil Rights - Topic 8668 ].

Criminal Law - Topic 5851

Sentence - Break and enter - The 18 year old Aboriginal accused waited on the doorstep of a residence and acted as a lookout while her 27 year old boyfriend broke into the residence and began to fill bags with property - The offence was interrupted when the residents returned - The accused pleaded guilty to break, enter and theft - She claimed that her relationship with her boyfriend was characterized by manipulation and physical violence, and that he had pressured her to commit the offence - The accused was on release for other offences at the time of the break and enter - She had an extensive criminal record - The accused was a victim of abuse, grew up in foster care, and had used alcohol and drugs from a young age - The Manitoba Provincial Court held that two years' imprisonment was an appropriate starting point given the accused's criminal record - The court reduced the sentence to 15 months to account for the accused's reduced role in the offence, and the diminishment in her moral culpability that resulted from her disadvantaged and troubled background - The accused might have been entitled to a greater reduction if she availed herself of more programming or treatment while on remand - See paragraphs 3 to 31.

Criminal Law - Topic 8817

Young offenders - General principles - Procedure - Publication ban - [See Criminal Law - Topic 4490 ].

Cases Noticed:

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. 25].

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. 25].

R. v. Muswagon (N.C.) (1993), 88 Man.R.(2d) 319; 51 W.A.C. 319; 1993 CarswellMan 259 (C.A.), refd to. [para. 28].

R. v. Scanlon (D.J.) (1995), 107 Man.R.(2d) 190; 109 W.A.C. 190; 1995 CarswellMan 332 (C.A.), refd to. [para. 31].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 37].

R. v. Bittern, 2014 MBPC 51, refd to. [para. 43].

R. v. Kehler (V.L.) (2009), 242 Man.R.(2d) 15; 2009 MBPC 29, refd to. [para. 44].

R. v. Butchko (C.L.) (2004) 250 Sask.R. 222; 2004 SKQB 140, refd to. [para. 48].

R. v. Perreault (M.D.) (2010), 497 A.R. 168; 2010 ABQB 714, refd to. [para. 48].

R. v. Hansard Spruce Mills Ltd., [1954] 13 W.W.R.(N.S.) 285, refd to. [para. 49].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 51].

R. v. Chambers (D.F.) (2014), 362 B.C.A.C. 22; 622 W.A.C. 22; 2014 YKCA 13, agreed with [para. 52].

R. v. Safarzadeh-Markhali (H.) (2014), 325 O.A.C. 17; 2014 ONCA 627, refd to. [para. 52].

R. v. Anderson (F.) (2014), 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, folld. [para. 53].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 56].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 56].

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 58].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 60].

R. v. Malmo-Levine (D.) et al. (2003), 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 61].

R. v. Nur (H.) et al. (2013), 311 O.A.C. 244; 2013 ONCA 677, refd to. [para. 62].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 69].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 69].

R. v. Kovich (G.W.) (2013), 300 Man.R.(2d) 176; 2013 MBPC 68, refd to. [para. 77].

R. v. Rhodes (K.H.C.) (2013), 297 Man.R.(2d) 114; 2013 MBQB 248, refd to. [para. 79].

R. v. Fisher (A.N.) (2013), 287 Man.R.(2d) 250; 2013 MBQB 40, refd to. [para. 79].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 83].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 CarswellMan 213; 2001 MBCA 64, refd to. [para. 86].

R. v. Johnson, 2011 CarswellOnt 1136 (C.J.), refd to. [para. 87].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713; 1996 CanLII 1241 (C.A.), refd to. [para. 88].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 95].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 109].

R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1; 2005 SCC 84, refd to. [para. 110].

R. v. Ferguson (M.E.) (2008), 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 CarswellAlta 228; 2008 SCC 6, refd to. [para. 110].

R. v. Nur (H.), [2011] O.T.C. Uned. 4874; 2011 CarswellOnt 8821; 2011 ONSC 4874, refd to. [para. 111].

R. v. Wilson (R.) (2008), 240 O.A.C. 59; 2008 ONCA 510, refd to. [para. 122].

R. v. MacLeod (J.M.) (2013), 297 Man.R.(2d) 215; 2013 MBQB 242, refd to. [para. 122].

Droit de la famille - 091768 - see A. v. B.

A. v. B. (2013), 439 N.R. 1; 2013 CarswellQue 114; 2013 SCC 5, refd to. [para. 132].

R. v. T.M.B., [2013] O.T.C. Uned. 4019; 2013 CarswellOnt 10174; 2013 ONSC 4019, refd to. [para. 136].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 15 [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3.1) [para. 1].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 110 [para. 35].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, No. 41, 2nd Sess., 40th Parliament (April 20, 2009), p. 1205 [para. 99].

Canada, Hansard, House of Commons Debates, No. 21, 2nd Sess., 40th Parliament (May 6, 2009), pp. 11, 12 [para. 100].

Manitoba, Office of the Auditor General, Managing the Province's Adult Offenders (March 2014), pp. 242, 251 [para. 134].

Counsel:

Deborah Carlson and Mark Lafreniere, for the Crown;

Joshua Rogala, for the accused.

This matter was heard before Krahn, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on January 21, 2015.