R. v. Smoke (D.D.),

JurisdictionManitoba
JudgeSteel, Beard and Monnin, JJ.A.
Neutral Citation2014 MBCA 91
Citation(2014), 310 Man.R.(2d) 123 (CA),2014 MBCA 91,[2015] 2 WWR 67,[2014] CarswellMan 591,310 Man R (2d) 123,310 ManR(2d) 123,(2014), 310 ManR(2d) 123 (CA),310 Man.R.(2d) 123
Date02 September 2014
CourtCourt of Appeal (Manitoba)

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123 (CA);

      618 W.A.C. 123

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. OC.010

Her Majesty The Queen (respondent) v. Dakota Dennis Smoke (accused/appellant)

(AR 13-30-08066; 2014 MBCA 91)

Indexed As: R. v. Smoke (D.D.)

Manitoba Court of Appeal

Steel, Beard and Monnin, JJ.A.

October 7, 2014.

Summary:

The accused was convicted of impaired driving causing death, impaired driving causing bodily harm (two counts) and failing to stop at the scene of an accident, following a serious traffic collision. The total sentence imposed was six and one-half years' incarceration (before credit for pre-trial custody). He applied for leave to appeal the sentence, arguing that the sentence was harsh and excessive and the sentencing judge failed to consider the Gladue factors and s. 718.2(e) of the Criminal Code.

The Manitoba Court of Appeal granted leave to appeal and allowed the appeal. The sentence was reduced to a total of five and one-half years' incarceration.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused was convicted of impaired driving causing death, impaired driving causing bodily harm (two counts) and failing to stop at the scene of an accident - The total sentence was six and one-half years' incarceration - He appealed - The Manitoba Court of Appeal held that the accused's age and circumstances as an Aboriginal offender should have been viewed as mitigating factors, and failing to take them (and all of the accused's personal circumstances) into account when determining the fit and proper sentence for each individual offence was an error of law - Taking these matters into account at a later stage when applying the totality principle did not correct the error because the sentence for each individual offence remained disproportionate for this offender - See paragraphs 24 to 33.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused was sentenced to six and one-half years' incarceration for offences following a motor vehicle accident - He appealed, arguing that while the sentencing judge acknowledged the Gladue factors, he erroneously concluded that they did not factor into his sentence and applied the conventional sentencing range - The Manitoba Court of Appeal held that the sentencing judge seemed to be looking for a direct causal link between the accused's circumstances as an Aboriginal offender and the offence before he would consider those circumstances as a sentencing factor - That view was too narrow - The link could be more indirect and still be relevant - A direct link was not required, and if one was not evident, a court should go on to determine whether there was a more indirect link - See paragraphs 34 to 42.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused, an 18 year old Aboriginal person, was convicted of impaired driving causing death, impaired driving causing bodily harm (two counts) and failing to stop at the scene of an accident and sentenced to a total of 6.5 years' incarceration - Speed and alcohol involved - He appealed the sentence - The Manitoba Court of Appeal allowed the appeal and reduced the sentence to a total 5.5 years (i.e., 4.5 years for the impaired driving causing death, 20 months for each of impaired driving causing bodily harm convictions (concurrent) and one year consecutive for the failing to stop offence - The court noted that he had an unrelated and limited youth criminal record - His Aboriginal background, which led him to drug and alcohol addiction and leaving school early, was a significant underlying cause in committing the offences - See paragraphs 43 to 56.

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See second Criminal Law - Topic 5846.1 ].

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. 1].

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. 8].

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. 8].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, dist. [para. 8].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 253 C.C.C.(3d) 351; 2010 MBCA 35, refd to. [para. 10].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 10].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 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. 37].

R. v. MacDonald (J.K.) (1999), 138 Man.R.(2d) 194; 202 W.A.C. 194 (C.A.), refd to. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 1].

Counsel:

J.L. Ostapiw, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on September 2, 2014, before Steel, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Beard, J.A., on October 7, 2014.

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20 practice notes
  • R. v. Charlette (J.J.), 2015 MBCA 32
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • December 9, 2014
    ...31, refd to. [para. 27]. R. v. Kozussek (S.A.), [2013] Man.R.(2d) Uned. 30; 2013 MBCA 52, refd to. [para. 33]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 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......
  • R. v. Basov (D.V.), (2015) 315 Man.R.(2d) 222 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • September 26, 2014
    ...9]. R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 9]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 9]. R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 17]. R. v. R.E.......
  • R. v. Gibson (R.J.), 2015 ABCA 41
    • Canada
    • Court of Appeal (Alberta)
    • October 21, 2014
    ...458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 311 C.C.C.(3d) 1; 2014 SCC 41, refd to. [para. 19]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 CarswellMan 591; 2014 MBCA 91, refd to. [para. 26]. R. v. Junkert (M.) (2010), 267 O.A.C. 7; 103 O.R.(3d) 284; 2......
  • R. v. Norton (T.T.), 2016 MBCA 79
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 29, 2016
    ...find that, notwithstanding the error, the original sentence is still fit and uphold that sentence. See, for example, R. v. Smoke (D.D.) , 2014 MBCA 91 at para. 43, 310 Man.R.(2d) 123. [17] In my view, a review of the history of the legislation, as well as the corresponding development of th......
  • Request a trial to view additional results
20 cases
  • R. v. Basov (D.V.), (2015) 315 Man.R.(2d) 222 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • September 26, 2014
    ...9]. R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 9]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 9]. R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 17]. R. v. R.E.......
  • R. v. Charlette (J.J.), 2015 MBCA 32
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • December 9, 2014
    ...31, refd to. [para. 27]. R. v. Kozussek (S.A.), [2013] Man.R.(2d) Uned. 30; 2013 MBCA 52, refd to. [para. 33]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 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......
  • R. v. Gibson (R.J.), 2015 ABCA 41
    • Canada
    • Court of Appeal (Alberta)
    • October 21, 2014
    ...458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 311 C.C.C.(3d) 1; 2014 SCC 41, refd to. [para. 19]. R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 CarswellMan 591; 2014 MBCA 91, refd to. [para. 26]. R. v. Junkert (M.) (2010), 267 O.A.C. 7; 103 O.R.(3d) 284; 2......
  • R. v. Norton (T.T.), 2016 MBCA 79
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 29, 2016
    ...find that, notwithstanding the error, the original sentence is still fit and uphold that sentence. See, for example, R. v. Smoke (D.D.) , 2014 MBCA 91 at para. 43, 310 Man.R.(2d) 123. [17] In my view, a review of the history of the legislation, as well as the corresponding development of th......
  • Request a trial to view additional results

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