R. v. Schmidt-Mousseau (C.A.), (2015) 320 Man.R.(2d) 104 (PC)

• Judge: Corrin, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: July 22, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 320 Man.R.(2d) 104 (PC);2015 MBPC 36

R. v. Schmidt-Mousseau (C.A.) (2015), 320 Man.R.(2d) 104 (PC)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.004

Her Majesty The Queen v. Cody Alexander Schmidt-Mousseau (accused)

(2015 MBPC 36)

Indexed As: R. v. Schmidt-Mousseau (C.A.)

Manitoba Provincial Court

Corrin, P.C.J.

July 22, 2015.

Summary:

The accused pleaded guilty to manslaughter, aggravated assault, and breach of a firearm prohibition.

The Manitoba Provincial Court sentenced the accused to five years' imprisonment for manslaughter, three years concurrent for aggravated assault, and one year concurrent for breach of the firearm prohibition, less credit on a 1.5:1.0 basis for time already served. The court also imposed a DNA order and a lifetime weapons prohibition.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The 22 year old aboriginal accused discovered his brother being beaten by a group of unknown men outside his residence - The group tried to escape in their car when the accused emerged from the residence with a rifle - The accused fired at the vehicle as it drove away - Two men were shot in the head - One died and the other survived - The accused pleaded guilty to manslaughter, aggravated assault, and breach of a firearm prohibition - The accused's mother was involved in a 1960's government assimilation policy wherein apprehended aboriginal children were raised by non-aboriginal families - His grandparents were residential school attendees - The accused was a victim of physical and emotional abuse in his early childhood - The Manitoba Provincial Court stated "I am not of the view that anything arises from the accused's circumstances as an aboriginal person which would justify any departure from a proportionate sentence based on and informed by reference to an appropriate range of sentence. ...  I perceive no meaningful connection between the deleterious consequences of First Nation status and the commission of the offence before the Court." - See paragraphs 33 to 36.

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5848

Sentencing - Considerations on imposing sentence - Provocation - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5877.2

Sentence - Possession of firearm, ammunition, etc. in breach of prohibition order - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - Dean drove Mike and three others to the accused's residence for the purpose of assaulting him - Upon arriving at the residence, the group observed the accused's brother (Zach) leave the residence - The group mistook Zach for the accused and began beating him with baseball bats - The accused emerged from the house with a rifle - The group ran back to the car to escape - The accused fired at the car several times as it drove away - Dean and Mike were both shot in the head - The vehicle went into the ditch and caught on fire - The accused pulled Dean from the burning vehicle - After determining that Dean was dead, the accused transported Mike to the hospital - Mike survived - The accused pleaded guilty to manslaughter, aggravated assault, and breach of a firearm prohibition - The Manitoba Provincial Court held that mitigating factors included the accused's remorse, his efforts to provide medical assistance to the victims, and the fact that the incident began with considerable provocation on the part of the victims - The accused's level of moral culpability was significantly reduced by the fact that he was reacting almost impulsively to an exceedingly threatening situation that he could not avoid - The accused was sentenced to five years' imprisonment for manslaughter, three years concurrent for aggravated assault, and one year concurrent for breach of the firearm prohibition.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5882 ].

Cases Noticed:

R. v. Peterson (D.C.) (2012), 285 Man.R.(2d) 172; 2012 MBQB 305, refd to. [para. 15].

R. v. Hogg (E.T.) (2004), 184 Man.R.(2d) 317; 318 W.A.C. 317; 2004 MBCA 114, refd to. [para. 16].

R. v. Beaulieu (S.A.) et al. (2007), 213 Man.R.(2d) 239; 2007 MBPC 9, dist. [para. 17].

R. v. McNeil (J.B.) (1998), 168 N.S.R.(2d) 59; 505 A.P.R. 59; 1998 CanLII 35 (C.A.), dist. [para. 17].

R. v. Pearson (D.H.), [2002] N.B.R.(2d) (Supp.) No. 49; 2002 NBQB 218 (T.D.), dist. [para. 17].

R. v. Toon (S.D.) (2006), 394 A.R. 363; 2006 ABQB 285, dist. [para. 17].

R. v. Pitter (D.), [2006] O.T.C. 1386; 2005 CanLII 41813 (Sup. Ct.), dist. [para. 17].

R. v. Wall (M.R.F.), [2010] B.C.T.C. Uned. 972; 2010 BCSC 972, dist. [para. 17].

R. v. Abraham (G.V.) (2011), 272 Man.R.(2d) 216; 2011 MBQB 299, refd to. [para. 19].

R. v. Csincsa (M.A.P.) (1993), 85 Man.R.(2d) 241; 41 W.A.C. 241 (C.A.), refd to. [para. 19].

R. v. Crane (P.) (1993), 88 Man.R.(2d) 17; 51 W.A.C. 17 (C.A.), refd to. [para. 19].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, refd to. [para. 19].

R. v. Sinclair (T.) (2011), 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 19].

R. v. Cascisa (T.J.) (2001), 160 Man.R.(2d) 94; 262 W.A.C. 94; 2001 MBCA 168, refd to. [para. 20].

R. v. Larche (J.F.) (2013), 297 Man.R.(2d) 76; 2013 MBPC 54, refd to. [para. 21].

R. v. Pop (K.C.) (2013), 337 B.C.A.C. 16; 576 W.A.C. 16; 2013 BCCA 160, refd to. [para. 21].

R. v. Mulligan-Brum (S.B.) (2013), 338 B.C.A.C. 59; 577 W.A.C. 59; 2013 BCCA 231, refd to. [para. 21].

R. v. Pearce (M.L.) (2012), 283 Man.R.(2d) 129; 2012 MBQB 248, agreed with [para. 22].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 22].

R. v. Gladue (J.T.) (1999), 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161 (S.C.C.), refd to. [para. 24].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 33].

R. v. Beltran (B.R.), [2006] Man.R.(2d) Uned. 108; 2006 MBQB 45, refd to. [para. 37].

R. v. Capistrano (C.L.) (2001), 154 Man.R.(2d) 140; 2001 MBQB 60, refd to. [para. 38].

R. v. McDougall (R.M.) (2009), 247 Man.R.(2d) 147; 2009 MBQB 299, refd to. [para. 39].

Counsel:

Lee Turner, for the Crown;

Jeremy Kostiuk, for the accused.

This matter was heard before Corrin, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment on July 22, 2015.