R. v. Musqua (C.), 2011 SKCA 2

• Judge: Cameron, Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 10, 2010
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 2;(2011), 362 Sask.R. 275 (CA)

R. v. Musqua (C.) (2011), 362 Sask.R. 275 (CA);

    500 W.A.C. 275

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.004

Christopher Musqua (appellant) v. Her Majesty the Queen (respondent)

(No. 1848; 2011 SKCA 2)

Indexed As: R. v. Musqua (C.)

Saskatchewan Court of Appeal

Cameron, Jackson and Ottenbreit, JJ.A.

January 5, 2011.

Summary:

The accused aboriginal was convicted of harassing the complainant (count 1); committing mischief by entering a dwelling house (count 2); committing mischief by willfully destroying the complainant's cell phone and car window (count 3).

The Saskatchewan Provincial Court sentenced the accused as follows: 44 months' imprisonment, a 10 year firearms prohibition, a DNA order and a no contact order (Criminal Code, s. 743.21) on count 1; 20 months' imprisonment and a s. 743.21 no contact order on count 2; and 20 months' imprisonment and a s. 743.21 no contact order on count 3. After receiving 14 months' remand credit, the total time left to be served was 30 months. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 39 year old accused was convicted of harassing the complainant (count 1); committing mischief by entering a dwelling house (count 2); committing mischief by willfully destroying the complainant's cell phone and car window (count 3) - The complainant ended her relationship with the accused - She left clothing outside her back door for him to pick up - The accused went to the back door and began kicking it - He damaged the door frame and the door - The security chain prevented the door from opening - Four days later he blocked the complainant's vehicle with his truck and demanded several of his items back - She opened the trunk so that he could retrieve a book - She refused his request for a kiss - He ripped the car window from the door frame, breaking it - The complainant attempted to call 911, but he grabbed her phone and shattered it into several pieces - He repeatedly telephoned the complainant at her home and place of employment - He waited outside her places of residence and employment - He e-mailed her photographs of him pointing a gun at his head - At the time he was subject to a firearms prohibition order - He maintained a strong relationship with his First Nation - Struggled with drug addiction and was taking steroids at the time of the offences - Had over 80 prior convictions, 14 of which were for violence, including a 2005 conviction for an assault causing bodily harm to the complainant and threatening her - Expressed remorse - Supported by community - Hard working - The sentencing judge considered, inter alia, the previous assault on the complainant and the domestic nature of the crimes - She considered the Gladue factors, but rejected a conditional sentence based on concerns respecting community safety - She likened the harassment charge to a threatening charge - She concluded that a global sentence of 44 months' imprisonment less 14 months' remand credit was appropriate given that the offences occurred in an overlapping time frame - The Saskatchewan Court of Appeal dismissed an appeal - While at the high end, the sentence was not outside of the appropriate range - The judge was entitled to consider the domestic context, that the accused's aggressive behaviour persisted over 1.5 months and that his criminal behaviour had continued virtually unabated since March 2005 - The sentence was proportionate to the gravity of the offences and the accused's responsibility in the circumstances - It also reflected the principles of denunciation and deterrence.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5890

Sentence - Mischief (includes vandalism) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5969

Sentence - Criminal harassment - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

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. 12].

R. v. Ilg (D.R.) (2009), 331 Sask.R. 151; 460 W.A.C. 151; 2009 SKCA 76, refd to. [para. 13].

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. 14].

Counsel:

Brad Tilling, for the appellant;

David Kim Jones, for the Crown.

This appeal was heard on November 10, 2010, by Cameron, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following judgment for the court on January 5, 2011.