R. v. Munoz (K.M.), (2006) 411 A.R. 257 (QB)

• Judge: Wilkins, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 14, 2006
• Citations: (2006), 411 A.R. 257 (QB);2006 ABQB 901

R. v. Munoz (K.M.) (2006), 411 A.R. 257 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.043

Her Majesty the Queen v. Kevin Manfredo Munoz (040007890 Q1; 2006 ABQB 901)

Indexed As: R. v. Munoz (K.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wilkins, J.

December 14, 2006.

Summary:

The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief.

The Alberta Court of Queen's Bench held that the appropriate sentence was seven years' imprisonment. After all the credits were given to the accused, he was sentenced to two years less one day's imprisonment followed by 12 months of probation. The court imposed a DNA order and a lifetime firearm prohibition order.

Civil Rights - Topic 1066

Discrimination - By sex - What constitutes - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted a breach of his s. 15 Charter rights to equality arising from the discrimination based on sex between his treatment as a male and that of female prisoners in the ERC - The claim was based on evidence relating to the different manner of clothing and the evidence that female prisoners were permitted to perform certain tasks on occasion for which they received canteen credits that were not equally available to male prisoners - The Alberta Court of Queen's Bench rejected the assertion - The clothing differential was based on a reasonable policy designed to address the differing personal needs of women and men - The occasional engagement of women prisoners to do small tasks in the ERC for canteen credits was based on their reduced security risks - No breach of the accused's s. 15 rights could be found - See paragraph 78.

Civil Rights - Topic 1215

Security of the person - Lawful or reasonable search - Prisoners - [See first Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See first Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 1370.2

Security of the person - Inmates and prisoners - Excessive force - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted a breach of his s. 7 Charter right when he was kicked in the face and punched by ERC guards while handcuffed during his removal from the servery area - The Alberta Court of Queen's Bench held that the assault on the accused by ERC staff had been proven on a balance of probabilities and it constituted a serious breach of the accused's s. 7 rights - Accordingly, the accused was entitled to a remedy which in this case was a further reduction of his sentence - See paragraph 78.

Civil Rights - Topic 1370.3

Security of the person - Inmates and prisoners - Negligence of prison staff - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted a breach of his s. 7 Charter right arising from the negligent manner by which he was placed in the general remand population in presence of known incompatibles - That negligence resulted in the accused being immediately stabbed with a shank and the immediate return of the accused to administrative segregation - The Alberta Court of Queen's Bench rejected the assertion - The accused's s. 7 Charter rights were not breached by the actions of the ERC staff - Similarly, allegations of s. 7 breaches arising from other alleged assaults by other prisoners on the accused had not been proven on a balance of probabilities to have been caused by the actions or negligence of the ERC staff - See paragraph 78.

Civil Rights - Topic 1370.4

Security of the person - Inmates and prisoners - Medical care - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted a breach of his s. 7 Charter right arising from the denial by ERC staff of his request for prompt medical attention, i.e., the failure to permit timely dental treatment of his broken tooth or the pain resulting therefrom and a delay in suitably responding to his request for a hepatitis test and for the prescription of cold/flu medicine as noted on his request for interview forms - The Alberta Court of Queen's Bench rejected the assertion - The failure of the ERC staff to provide more or more timely access to dental or medical health had not been proven on a balance of probabilities to constitute a breach of his s. 7 Charter rights - See paragraph 78.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See first Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Prisoners - Segregation - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused was placed in administrative segregation in response to a widespread incident of violence - He was sentenced by the Disciplinary Board to serve 14 days in disciplinary segregation - He was released into the general population but almost immediately placed in segregation after a fight erupted with an incompatible inmate - Given his designation as a "high profile prisoner", he was housed and exercised with compatible inmates - His cell and person were searched daily - He was escorted in handcuffs - The accused asserted breaches of his ss. 7, 8, 9 and 10 Charter rights - The Alberta Court of Queen's Bench rejected the assertions - The conditions faced by the accused while under administrative segregation, disciplinary segregation, and the high profile designation could not constitute a breach of his ss. 8 or 12 Charter rights - The evidence failed to establish that the designation of "high profile prisoner", confinement on administrative segregation, or decisions of the Board relative to disciplinary segregation were arbitrary or unwarranted in all the circumstances and, therefore, in breach of his s. 9 Charter right - There was no evidence that the accused was ever denied the right to counsel contrary to his s. 10(b) Charter right - See paragraphs 64 to 77.

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Prisoners - Segregation - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused was placed in administrative segregation and in disciplinary segregation - During the first two periods of his disciplinary segregation, the accused was forced to wear "baby dolls", a short sheath type of covering to distinguish him from other prisoners - He served two periods of 14 days each wearing "baby dolls" - The accused argued that this constituted cruel and unusual punishment and was a breach of his s. 12 Charter rights - The Alberta Court of Queen's Bench agreed - The sole objective of the "baby dolls" was to humiliate and further isolate segregated prisoners and had no other valid purpose - As such this treatment was grossly disproportionate to the punishment that was appropriate and therefore a breach of the accuse'd s. 12 Charter rights - Accordingly, he was entitled to a remedy which was a further reduction of his sentence - See paragraph 78.

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Prisoners - Segregation - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused was placed in administrative segregation and in disciplinary segregation - The accused asserted that the impact of the conditions faced by the accused over the extended period of time in the adverse conditions of segregation constituted cruel and unusual punishment and was a breach of his s. 12 Charter rights - The Alberta Court of Queen's Bench rejected the assertion - The particular effects of prison conditions on the accused were to be considered by the court - However, an allegation of a breach of s. 12 of the Charter required a finding that the conditions complained of amounted to cruel and unusual treatment, which was defined as treatment that was "so excessive as to outrage the standards of decency" or constituted punishment that was "grossly disproportionate to what would have been appropriate" - This was not the case - See paragraph 78.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Circumstances not constituting - [See first and third Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Circumstances not constituting - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) except for periods in which he was placed in the Fort McMurray lock-up facility while attending trial matters - The accused asserted that the conditions at Fort McMurray, including the refusal to permit him to shower daily, to access his toiletries, to brush his teeth and well as the substandard sleeping amenities, lack of hot water in cell sinks, absence of a personal towel, absence of fresh fruit daily, absence of a right to shave, failure to provide two mattresses, sheets, blanket and pillow, constituted cruel and unusual punishment and a breach of the accused's s. 12 Charter rights - The Alberta Court of Queen's Bench rejected the assertion - The conditions complained of individually or in totality could not be found to amount to cruel or unusual treatment - Considered individually and globally, his treatment could not be found to be so excessive as to outrage the standards of decency nor was it grossly disproportionate to what would have been appropriate - See paragraphs 37 to 44.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Circumstances not constituting - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted that the conditions at the ERC, including inadequacy of cell size, double bunking, inadequate furnishings, inadequate access to books, magazines and board games, poor air quality, ventilation and heating, bland food, often cold and served in inadequate portions, stained clothing, limited telephone access and confinement to cells for 18 hours per day, constituted cruel and unusual punishment and a breach of the accused's s. 12 Charter rights - The Alberta Court of Queen's Bench rejected the assertion - See paragraphs 49 to 62.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See first Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 5660.1

Equality and protection of the law - Particular cases - Prisoners - [See Civil Rights - Topic 1066 ].

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 1370.2 and second Civil Rights - Topic 3828.4 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 1066 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) except for periods in which he was placed in the Fort McMurray lock-up facility while attending trial matters - The accused asserted that the conditions at Fort McMurray, including the refusal to permit him to shower daily, to access his toiletries, to brush his teeth as well as the substandard sleeping amenities, lack of hot water in cell sinks, absence of a personal towel, absence of fresh fruit daily, absence of a right to shave, failure to provide two mattresses, sheets, blanket and pillow, constituted a juristic reason for the court's exercise of discretion to grant an enhanced credit of greater than 2 for 1 - The Alberta Court of Queen's Bench agreed - The court gave the accused credit for his time spent at Fort McMurray (70 days) of 3 to 1 - See paragraphs 47 and 48.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - The accused asserted that the conditions at the ERC, including inadequacy of cell size, double bunking, inadequate furnishings, inadequate access to books, magazines and board games, poor air quality, ventilation and heating, bland food, often cold and served in inadequate portions, stained clothing, limited telephone access and confinement to cells for 18 hours per day, constituted a juristic reason for the court's exercise of discretion to grant an enhanced credit of greater than 2 for 1 - The Alberta Court of Queen's Bench rejected the assertion - The conditions at the ERC were not sufficiently disproportionate to justify a higher multiple of enhanced time - See paragraph 63.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - He had been in custody ever since his arrest - He served all of his time in custody at the Edmonton Remand Centre (ERC) - Additionally, the accused was serving a sentence of two years for trafficking cocaine and 11 months for two assaults - These offences occurred prior to his arrest on the present charges - After statutory remission of one-third of those sentences was considered, the accused had served a total of 696 days or approximately 23 months to fully complete his sentences - The accused asserted that the sentences served in remand were much more severe than any penalty the accused would have paid for his conviction in a sentence serving institution - The accused continued to be denied access to any programs available in a serving institution; he was subjected to greatly increased lock-up times each day; he was denied access to much more liberal recreation out of cell privileges - The accused argued he should be entitled to 1 for 1 credit for all of the remand/sentence time served - The Alberta Court of Queen's Bench held that some enhanced credit had to be given to the accused for the time spent in the ERC while serving his two sentences - Certainly the conditions he faced while serving that time were much more adverse than he would have experienced in a serving institution - He was unable to access programs, particularly those which would enhance his education - He was unable to earn any additional remittance of his sentences - He was forced to endure lock-up periods in his cell which were very much increased over what he might experience in a serving institution - The court allowed an enhanced credit for the total time served in remand/sentence of 11 additional months - See paragraphs 81 to 92.

Criminal Law - Topic 5855

Sentence - Robbery - The accused was convicted of robbery, aggravated assault, use of a weapon in an assault, possession of a weapon and mischief - The accused and others were involved in drug trafficking - They learned that Roselle and Myslicki were also trafficking drugs - The accused and others waited for Roselle and Myslicki outside a bar - When Roselle and Myslicki were seated in their vehicle, the accused smashed the passenger window with a hatchet and robbed Roselle of his wallet, rings and watch - The accused punched Roselle and struck him in the head and legs with the hatchet, causing deep lacerations - The accused had five prior convictions for robbery - The attack was violent and was part of the drug trade - The accused had a terrible record for violence towards his victims - He had a total lack of consideration and remorse - The Alberta Court of Queen's Bench held that the appropriate sentence was seven years' imprisonment - After all the credits were given to the accused, he was sentenced to two years less one day's imprisonment followed by 12 months of probation - See paragraphs 1 to 29.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5890

Sentence - Mischief (including vandalism) - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5855 ].

Prisons - Topic 1025

Administration - Powers re prisoners - Placement in special handling units (incl. segregation or dissociation) - [See all Civil Rights - Topic 3828.4 ].

Prisons - Topic 1103

Administration - Prisoners' rights - Prison diet - [See second and third Civil Rights - Topic 3830 and first and second Criminal Law - Topic 5848.2 ].

Prisons - Topic 1109

Administration - Prisoners' rights - Searches - General - [See first Civil Rights - Topic 3828.4 ].

Prisons - Topic 1116

Administration - Prisoners' rights - Telephone calls - [See third Civil Rights - Topic 3830 and second Criminal Law - Topic 5848.2 ].

Prisons - Topic 1120

Administration - Prisoners' rights - Accommodation - Double bunking - [See third Civil Rights - Topic 3830 and second Criminal Law - Topic 5848.2 ].

Prisons - Topic 1124.1

Administration - Prisoners' rights - Access to entertainment (incl. videotapes and DVDs) - [See third Civil Rights - Topic 3830 and second Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Kanthasamy (M.) et al., [2005] O.T.C. 557 (Sup. Ct.), refd to. [para. 22].

R. v. Stewart (R.) (2002), 163 O.A.C. 391 (C.A.), refd to. [para. 22].

R. v. Ervin (D.) (2001), 306 A.R. 201 (Prov. Ct.), refd to. [para. 22].

R. v. Redbreast (M.) (2004), 366 A.R. 305; 2004 ABQB 709, refd to. [para. 23].

R. v. Mears, [1990] A.J. No. 255, refd to. [para. 24].

R. v. Ervin (D.) (2003), 327 A.R. 350; 296 W.A.C. 350 (C.A.), refd to. [para. 24].

R. v. Bitterman (M.W.), [2005] A.R. Uned. 613 (Prov. Ct.), refd to. [para. 25].

R. v. Erskine - see R. v. Bitterman (M.W.).

R. v. Sharphead (G.B.) (2004), 357 A.R. 248; 334 W.A.C. 248 (C.A.), refd to. [para. 26].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2006), 407 A.R. 328; 2006 ABQB 834, refd to. [para. 37].

Geary v. Edmonton Remand Centre (Director) et al. (2004), 350 A.R. 143; 2004 ABQB 19, refd to. [para. 38].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 41].

R. v. Tsai (S.G.) (2005), 199 O.A.C. 244 (C.A.), refd to. [para. 85].

R. v. Robinson, [2003] Q.J. No. 13263 (Que. C.A.), refd to. [para. 86].

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, refd to. [para. 88].

R. v. R.K.A. (2006), 384 A.R. 222; 367 W.A.C. 222; 2006 ABCA 82, refd to. [para. 89].

R. v. Chan (N.C.) (2005), 387 A.R. 123 (Q.B.), refd to. [para. 89].

R. v. Taylor (J.D.), 2002 ABQB 266, refd to. [para. 89].

Counsel:

Kevin L. Fotty, for the Crown;

Thomas M. Engel and Nicole R. Sissons, for the accused.

This case was heard by Wilkins, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 14, 2006.