R. v. Rutkowska (I.), 2005 MBCA 18

JudgeKroft, Monnin and Freedman, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJanuary 20, 2005
JurisdictionManitoba
Citations2005 MBCA 18;(2005), 192 Man.R.(2d) 55 (CA);2005 MBCA 6

R. v. Rutkowska (I.) (2005), 192 Man.R.(2d) 55 (CA);

    340 W.A.C. 55

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. FE.006

Her Majesty The Queen (respondent) v. Iwona Rutkowska (accused/appellant)

(AR 04-30-05971; 2005 MBCA 6; 2005 MBCA 18)

Indexed As: R. v. Rutkowska (I.)

Manitoba Court of Appeal

Kroft, Monnin and Freedman, JJ.A.

January 20, 2005 and February 3, 2005.

Summary:

The accused was convicted by a jury of extortion and assault and was sentenced to 20 months in jail followed by one year of probation. The accused appealed the conviction and sentence.

The Manitoba Court of Appeal dismissed the appeals. Before a certificate of judgment was entered, the accused requested that the court increase the length of her sentence from 20 months in jail to 24 months in a federal penitentiary. This would allow her to receive certain rehabilitation programs that were only available to prisoners serving their time under federal jurisdiction. The Crown consented.

The Manitoba Court of Appeal allowed the request and sentenced the accused to a federal penitentiary for 24 months, followed by a one-year period of probation. The court stated that it did not endorse the procedure that had been followed and suggested that it not be resorted to in the future.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Powers to re-open appeal - The accused was sentenced to 20 months in jail and one year of probation for extortion and assault - The accused appealed the sentence, arguing that she should have received a conditional sentence - The Manitoba Court of Appeal dismissed the appeal - Before a certificate of judgment was entered, the accused requested that the court increase her sentence to 24 months in a federal penitentiary to allow her to receive rehabilitation programs that were only available to prisoners serving their time under federal jurisdiction - The Crown consented - The Manitoba Court of Appeal held that, as no certificate of judgment had been filed, it had inherent jurisdiction to reconsider or re-open the appeal and would do so in the circumstances - This alternative submission had been overlooked by counsel - Had it been raised, it would have been concurred in by the Crown and amounted to a joint recommendation - The court cautioned that it did not endorse the procedure that had been followed and suggested that it not be resorted to in the future - See paragraphs 31 to 51.

Criminal Law - Topic 5861

Sentence - Assault - The 44 year old accused was convicted of extortion and assault - She and a co-accused were admitted to an elderly victim's home - The accused had been employed by the victim as a caregiver for the victim's grandchildren - Acting under the accused's directions, the co-accused threatened the victim with serious physical harm and death if he did not pay them a substantial sum of money (which the accused believed she was owed) - The co-accused used butcher knives taken from the victim's kitchen - The victim suffered minor stab injuries - The crime was pre-meditated - No prior convictions - Medium risk to re-offend - Unresolved anger management issues - The accused was sentenced to 20 months in jail followed by one year of probation - The Manitoba Court of Appeal refused to interfere with the sentencing judge's decision to refuse a conditional sentence - Before a certificate of judgment was entered, the accused requested that the court increase her sentence to 24 months in a federal penitentiary to allow her to receive rehabilitation programs that were only available to federal prisoners - The Crown, who had originally sought a penitentiary term, consented - The Manitoba Court of Appeal allowed the request - A 24 month term was not excessive and within the reasonable range - Rehabilitation of the accused was a realistic possibility - She would have more community support - The increased sentence would better serve the accused and the community - See paragraphs 19 to 23.

Criminal Law - Topic 5911

Sentence - Extortion - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - [See Criminal Law - Topic 4989.5 ].

Cases Noticed:

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 30 C.R.(5th) 1; 140 C.C.C.(3d) 449; 182 D.L.R.(4th) 1; 44 W.C.B.(2d) 479; 49 M.V.R.(3d) 163, 2000 SCC 5, refd to. [para. 13].

R. v. V.C.A.S. (2001), 156 Man.R.(2d) 198; 246 W.A.C. 198; 2001 MBCA 85, refd to. [para. 13].

R. v. Romolo (O.), [2002] Man.R.(2d) Uned. 30; 2002 MBCA 66, refd to. [para. 13].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 28].

R. v. J.C.T. (1998), 114 O.A.C. 186; 39 O.R.(3d) 26 (C.A.), refd to. [para. 29].

R. v. D.O. (2001), 148 O.A.C. 49; 156 C.C.C.(3d) 369 (C.A.), refd to. [para. 29].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219; 2000 ABCA 243, refd to. [para. 29].

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 115 C.C.C.(3d) 89 (C.A.), refd to. [para. 44].

R. v. E.H.F.; R. v. Rhingo - see R. v. Hamilton (E.).

R. v. Garcha (J.J.) (2000), 143 B.C.A.C. 245; 235 W.A.C. 245; 2000 BCCA 550, refd to. [para. 44].

Counsel:

S.A. Inness, for the appellant;

A.Y. Kotler, for the respondent.

This appeal was heard on December 2, 2004, before Kroft, Monnin and Freedman, JJ.A., of the Manitoba Court of Appeal.

The following judgment and addendum were delivered by Kroft, J.A., for the court on January 20, 2005 and February 3, 2005.

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3 practice notes
  • Campbell v. The Chief of Police and Fredericton Police Force, 2018 NBCA 54
    • Canada
    • Court of Appeal (New Brunswick)
    • 13 December 2018
    ...is issued: R. v. Hummel, 2003 YKCA 4, [2003] Y.J. No. 36 (QL); R. v. Lawrence, 2004 ABCA 13, [2004] A.J. No. 14 (QL); R. v. Rutkowska, 2005 MBCA 18, [2005] M.J. No. 28 (QL); and R. v. Hamilton; R. v. Rhingo, [1997] O.J. No. 1110 (C.A.)(QL). Invoking decisions of the Ontario Court of Appeal ......
  • R. v. Harveymordenzenk (D.G.), (2007) 221 Man.R.(2d) 121 (PC)
    • Canada
    • Manitoba Provincial Court of Manitoba (Canada)
    • 29 October 2007
    ...184 Man.R.(2d) 259; 318 W.A.C. 259; 2004 MBCA 78, refd to. [para. 20]. R. v. Eckert (J.J.) (2005), 201 Man.R.(2d) 175; 366 W.A.C. 175; 2005 MBCA 6, dist. [para. M. Minuk, for the Crown; R. Wolson, Q.C., for the accused. This matter was heard before Wyant, P.C.J., of the Manitoba Provincial ......
  • R. v. Chen (I.Y.Y.), 2007 MBQB 74
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 29 March 2007
    ...(Q.B.), refd to. [para. 8]. R. v. Romolo (O.), [2002] Man.R.(2d) Uned. 30; 2002 MBCA 66, refd to. [para. 12]. R. v. Rutkowska (I.) (2005), 192 Man.R.(2d) 55; 340 W.A.C. 55; 2005 MBCA 18, refd to. [para. Paul Jensen, for the Crown; E. Gene Zazalenchuk, for the accused. This sentencing hearin......
3 cases
  • Campbell v. The Chief of Police and Fredericton Police Force, 2018 NBCA 54
    • Canada
    • Court of Appeal (New Brunswick)
    • 13 December 2018
    ...is issued: R. v. Hummel, 2003 YKCA 4, [2003] Y.J. No. 36 (QL); R. v. Lawrence, 2004 ABCA 13, [2004] A.J. No. 14 (QL); R. v. Rutkowska, 2005 MBCA 18, [2005] M.J. No. 28 (QL); and R. v. Hamilton; R. v. Rhingo, [1997] O.J. No. 1110 (C.A.)(QL). Invoking decisions of the Ontario Court of Appeal ......
  • R. v. Harveymordenzenk (D.G.), (2007) 221 Man.R.(2d) 121 (PC)
    • Canada
    • Manitoba Provincial Court of Manitoba (Canada)
    • 29 October 2007
    ...184 Man.R.(2d) 259; 318 W.A.C. 259; 2004 MBCA 78, refd to. [para. 20]. R. v. Eckert (J.J.) (2005), 201 Man.R.(2d) 175; 366 W.A.C. 175; 2005 MBCA 6, dist. [para. M. Minuk, for the Crown; R. Wolson, Q.C., for the accused. This matter was heard before Wyant, P.C.J., of the Manitoba Provincial ......
  • R. v. Chen (I.Y.Y.), 2007 MBQB 74
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 29 March 2007
    ...(Q.B.), refd to. [para. 8]. R. v. Romolo (O.), [2002] Man.R.(2d) Uned. 30; 2002 MBCA 66, refd to. [para. 12]. R. v. Rutkowska (I.) (2005), 192 Man.R.(2d) 55; 340 W.A.C. 55; 2005 MBCA 18, refd to. [para. Paul Jensen, for the Crown; E. Gene Zazalenchuk, for the accused. This sentencing hearin......

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