R. v. Peterson (D.C.), (2013) 299 Man.R.(2d) 236 (CA)

• Judge: Monnin, Steel and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 24, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 299 Man.R.(2d) 236 (CA);2013 MBCA 104

R. v. Peterson (D.C.) (2013), 299 Man.R.(2d) 236 (CA);

      590 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. DE.001

Her Majesty The Queen (respondent) v. Daniel Conan Peterson (accused/appellant)

(AR 12-30-07902; 2013 MBCA 104)

Indexed As: R. v. Peterson (D.C.)

Manitoba Court of Appeal

Monnin, Steel and Beard, JJ.A.

November 25, 2013.

Summary:

The accused was convicted of manslaughter.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 285 Man.R.(2d) 172, held that a fit and proper sentence was nine years' imprisonment, which was reduced by 52 months (as credit for 42.5 months of pretrial custody), leaving a sentence to be served of four years and eight months. The court also imposed a lifetime weapons prohibition under s. 109 of the Criminal Code and a DNA order. The accused appealed from the conviction and from the sentence.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: For decisions related to this accused, see (2012), 276 Man.R.(2d) 26 and (2012), 277 Man.R.(2d) 134.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused was known to be a friend of the victim and was the last person to see the victim alive - During an interview with police, when asked if he knew why the victim was killed, the accused responded that he had woken up and found the victim performing a sex act on him - The detective's response was "what?" - The accused stated that he had grabbed a hammer and struck the victim on the head - The accused was charged with second degree murder - The trial judge found that the accused was not detained at any time prior to advising the police that he had hit the victim with a hammer and dismissed the accused's application to exclude his statement to police as having been obtained in violation of his right to counsel - The accused was convicted of manslaughter - On appeal, he challenged the trial judge's determination that he had not been detained - The Manitoba Court of Appeal dismissed the appeal - For an interaction between a member of the public and the police to be a detention there had to be, first, a restrictive request or demand by the police - Where there was no legal obligation to comply with that request, the inquiry focussed on the state conduct and how it would be perceived by a reasonable person as the situation developed - Here, there was no restrictive request - The accused was not detained when he was asked to help the police with their investigation nor did the interview crystallize into a detention at any time prior to the question about the motive for the murder - The trial judge accepted that the answer to that question was unexpected - Her finding that the accused was a person of interest and not a suspect was entitled to significant deference - The fact that police asked pointed questions about a crime did not turn a person of interest into a suspect - Given the facts and circumstances, the trial judge's finding was correct - See paragraphs 33 to 55.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 4806

Appeals - Indictable offences - General principles - Duty of appellate court - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of manslaughter - At issue on his sentencing was credit for pretrial custody of 42.5 months - The trial judge allowed the accused 52 months of credit on sentencing for his pretrial custody - The offence predated the 2010 amendments to the Criminal Code - Therefore, the general rule was 2:1 credit - However, while in custody, the accused had been involved in 17 incidents where disciplinary action was taken against him - Further, aside from approximately four months, the accused had been in custody because he failed to follow the conditions of his release - This justified credit of even less than 1.5:1 - Many of the accused's actions amounted to criminal acts, even though no charges were laid - Considerable resources were wasted dealing with his acting out - The Manitoba Court of Appeal dismissed the accused's appeal - The determination of credit for time served was an aspect of sentencing and sentencing decisions were entitled to considerable deference - There was no error of law nor was the sentence unfit - The trial judge had exercised her discretion reasonably - See paragraphs 57 to 63.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 19].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 19].

R. v. Koczab (A.) (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 2013 MBCA 43, refd to. [para. 19].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, refd to. [para. 30].

R. v. D.E.M. (2001), 156 Man.R.(2d) 231; 246 W.A.C. 231; 2001 MBCA 110, refd to. [para. 30].

R. v. Voteary (C.M.) (1996), 112 Man.R.(2d) 1 (Q.B.), refd to. [para. 30].

R. v. C.L.S., 2011 MBQB 22, refd to. [para. 33].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 37].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 39].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 2004 MBCA 45, refd to. [para. 47].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 2008 MBCA 110, refd to. [para. 59].

Counsel:

A.L. Sansregret and J.D. Soper, for the appellant;

A.Y. Kotler, for the respondent.

This appeal was heard on September 24, 2013, by Monnin, Steel and Beard, JJ.A., of the Manitoba Court of Appeal. On November 25, 2013, Beard, J.A., delivered the following judgment for the court.