R. v. McMillan (B.W.), (2016) 326 Man.R.(2d) 56 (CA)

• Judge: Chartier, C.J.M., Monnin and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 26, 2015
• Jurisdiction: Manitoba
• Citations: (2016), 326 Man.R.(2d) 56 (CA);2016 MBCA 12

R. v. McMillan (B.W.) (2016), 326 Man.R.(2d) 56 (CA);

      664 W.A.C. 56

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.014

Her Majesty The Queen (appellant) v. Bryce William McMillan (accused/respondent) and The Attorney General of Canada (intervener)

(AR 13-30-08068; 2016 MBCA 12)

Indexed As: R. v. McMillan (B.W.)

Manitoba Court of Appeal

Chartier, C.J.M., Monnin and Burnett, JJ.A.

January 28, 2016.

Summary:

The accused pleaded guilty to a charge of intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place (Criminal Code, s. 244.2(1)(a)). There was a mandatory minimum sentence of four years for that offence. The issue of sentencing was adjourned to allow the accused to pursue an application challenging the constitutionality of the mandatory minimum sentence pursuant to s. 12 of the Charter (i.e., the provision respecting cruel and unusual punishment).

The Manitoba Court of Queen's Bench allowed the application. The court held that the minimum sentence of four years as required by s. 244.2(1) of the Code violated s. 12 of the Charter in that it constituted cruel and unusual punishment. The minimum sentence could not be saved by s. 1. Accordingly, the minimum sentence provision of s. 244.2 was declared invalid and of no force and effect. The court, after making allowance for two months spent in pre-trial custody and the 18 months the accused spent on judicial interim release, sentenced the accused to one year of incarceration, plus two years' probation. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and substituted the one year sentence with a sentence of four years' imprisonment, less credit at the rate of 1.5:1 for the 67 days of pre-sentence custody (1.5 x 67 days = 100 days of credit). The court, however, stayed the remaining custodial portion of the sentence. In light of having determined that the fit and appropriate sentence did not fall below the mandated minimum sentencing floor, the court was of the view that it was not necessary to engage the Charter issue on this appeal, other than to comment that it was not endorsing the sentencing judge's s. 12 reasoning.

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - The accused was convicted of recklessly discharging a firearm (Criminal Code, s. 244.2(1)) - The sentencing judge determined that the four year mandatory minimum sentence pursuant to s. 244.2(1) violated s. 12 of the Charter and could not be saved by s. 1 - The minimum sentence provision of s. 244.2 was declared invalid and of no force and effect - The accused was sentenced to one year of imprisonment - The Crown appealed - The Manitoba Court of Appeal allowed the appeal, holding that a fit and appropriate sentence was four years' imprisonment - In light of having determined that the fit and appropriate sentence did not fall below the mandated minimum sentencing floor, the appeal court was of the view that it was not necessary to engage the Charter issue on this appeal, other than to comment that it was not endorsing the sentencing judge's s. 12 reasoning - See paragraph 34.

Criminal Law - Topic 5833

Sentencing - Considerations in imposing sentence - Deterrence - [See first Criminal Law - Topic 5903 ].

Criminal Law - Topic 5848.1

Sentencing - Considerations on imposing sentence - Negligence or conduct of victim (incl. bullying) - The accused was sentenced to one year's imprisonment for repeatedly discharging a firearm at a house - The sentencing judge cited bullying as a consideration on sentencing - The Crown appealed - The Manitoba Court of Appeal allowed the appeal, stating that: "Bullying is a form of intimidation and abuse. There can be no denying that the accused was the victim of bullying and that the bullying was the motivating factor for his crime. But again, when denunciation and general deterrence are the paramount sentencing considerations, the primary focus is on the offender's conduct (repeatedly discharging a firearm into a home), not the particular circumstances of the offender (victim of bullying). While personal factors remain relevant, they are to be given less weight. In the case at hand, a fair reading of the reasons shows that the sentencing judge's attention was focussed more on the accused's personal factors than on the offending conduct" - See paragraph 20.

Criminal Law - Topic 5848.1

Sentencing - Considerations on imposing sentence - Negligence or conduct of victim (incl. bullying) - [See second Criminal Law - Topic 5903 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Manitoba Court of Appeal stated that "Equating pre-trial bail with pre-sentence custody is directly contrary to our decision in R. v. Irvine (C.W.), 2008 ..., and must be disabused. As we explained, 'if any allowance is to be made for pre-trial bail, it will be because the sentencing judge considers it to be a mitigating factor' ... As has been stated many times, bail is not jail. Unlike pre-sentence custody, there is no entitlement to a credit for time spent on bail. However, if there is evidence that stringent bail conditions resulted in a significant hardship, a judge can take it into account when determining the sentence" - See paragraph 28.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was sentenced to one year's imprisonment for repeatedly discharging a firearm at a house - The sentencing judge, after making allowance for two months spent in pre-trial custody and the 18 months the accused spent on judicial interim release, sentenced the accused to one year of incarceration, plus two years' probation - The Crown appealed - The Manitoba Court of Appeal allowed the appeal - The sentencing judge erred in equating pre-trial bail and pre-sentence custody - Further there was no evidence that stringent bail conditions resulted in any hardship to the accused - The appeal court imposed a sentence of four years' imprisonment, less credit at the rate of 1.5:1 for the 67 days of pre-sentence custody (1.5 x 67 days = 100 days of credit) - See paragraphs 27 to 34 and 44.

Criminal Law - Topic 5848.7

Sentencing - Considerations in imposing sentence - Denunciation - [See first Criminal Law - Topic 5903 ].

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See first Criminal Law - Topic 5903 ].

Criminal Law - Topic 5903

Sentence - Discharge of firearm with intent or recklessness - The accused was sentenced to one year's imprisonment for repeatedly discharging a firearm at a house - The Crown appealed - The Manitoba Court of Appeal allowed the appeal stating that: "Despite correctly acknowledging in his reasons that the accused's actions amounted to 'a crime of extreme violence' (at para. 16), the sentencing judge imposed a one-year period of imprisonment. That sentence sends the wrong message. Canadian neighbourhoods are not war zones. The public expects that the sentence will reflect society's denunciation and condemnation for such conduct and that it will serve as a general deterrent to prevent others from acting so recklessly in the future" - See paragraph 1.

Criminal Law - Topic 5903

Sentence - Discharge of firearm with intent or recklessness - The accused was sentenced to one year's imprisonment for repeatedly discharging a firearm at a house - Age 19 at time of offence - Pled guilty - Remorseful - No previous record of violence - Was allegedly retaliating for bullying - The sentencing judge imposed a sentence of one year of incarceration, plus two years' probation - The Crown appealed - The Manitoba Court of Appeal allowed the appeal - The sentencing judge erred by greatly under emphasizing the principles of general deterrence and denunciation, overemphasizing bullying as a mitigating factor and under emphasizing the accused's high degree of moral blameworthiness, and in equating pre-trial bail and pre-sentence custody - The appeal court imposed a sentence of four years' imprisonment, less credit at the rate of 1.5:1 for the 67 days of pre-sentence custody (1.5 x 67 days = 100 days of credit) - The court, however, stayed the remaining custodial portion of the sentence - See paragraphs 1 to 42.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - The accused was sentenced to one year's imprisonment for repeatedly discharging a firearm at a house - The Crown appealed - The Manitoba Court of Appeal allowed the appeal and increased the sentence to four years, less 100 days' credit for time served - The court, however, stayed the remaining custodial portion of the sentence, citing, inter alia, the time elapsed since sentence was first imposed, that sending this youthful offender back to jail would negatively impact on his successful rehabilitation, and the fact that the original sentence was served - See paragraphs 36 to 43.

Cases Noticed:

R. v. Nur (H.), [2015] 1 S.C.R. 773; 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 12].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 12].

R. v. Kennedy (A.A.) (2016), 323 Man.R.(2d) 265; 657 W.A.C. 265; 2016 MBCA 5, refd to. [para. 12].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 2013 ONCA 677, refd to. [para. 12].

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. 13].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 14].

R. v. Lyta (D.) (2013), 561 A.R. 146; 594 W.A.C. 146; 2013 NUCA 10, refd to. [para. 18].

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. 18].

R. v. Irvine (C.W.) (2008), 225 Man.R.(2d) 281; 419 W.A.C. 281; 2008 MBCA 34, refd to. [para. 28].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 2000 SCC 5, refd to. [para. 35].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 35].

R. v. Shi (F.), [2015] O.A.C. Uned. 647; 2015 ONCA 646, refd to. [para. 36].

R. v. H.E. (2015), 336 O.A.C. 363; 2015 ONCA 531, refd to. [para. 36].

R. v. Owen (P.) (2015), 336 O.A.C. 95; 2015 ONCA 462, refd to. [para. 36].

R. v. Dufour (C.) (2015), 336 O.A.C. 52; 2015 ONCA 426, refd to. [para. 36].

R. v. Schertzer (J.) et al. (2015), 333 O.A.C. 308; 2015 ONCA 259, refd to. [para. 36].

R. v. Ghadban (M.) (2015), 342 O.A.C. 177; 2015 ONCA 760, refd to. [para. 36].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, refd to. [para. 36].

Counsel:

M.A. Conner, for the appellant;

R.D. Harrison and B.M.P. Moen, for the respondent;

S.M. Telles-Langdon and A.M. Menticoglou, for the intervener.

This appeal was heard on October 26, 2015, before Chartier, C.J.M., Monnin and Burnett, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered on January 28, 2016, including the following opinions:

Chartier, C.J.M. (Burnett, J.A., concurring) - see paragraphs 1 to 42;

Monnin, J.A., concurring in the result - see paragraphs 43 to 50.