R. v. Smoke (J.J.), (2014) 307 Man.R.(2d) 135 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 26, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 307 Man.R.(2d) 135 (QB);2014 MBQB 130

R. v. Smoke (J.J.) (2014), 307 Man.R.(2d) 135 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JL.011

Her Majesty The Queen v. Jared James Smoke (accused)

(CR 11-01-30922; 2014 MBQB 130)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Martin, J.

June 26, 2014.

Summary:

During a domestic assault, the aboriginal accused shot his girlfriend with a sawed-off  204 calibre Ruger rifle. He was convicted of discharging a firearm with intent to wound (s. 244 of the Criminal Code), aggravated assault (s. 268(1)), careless storage of a firearm (s. 86(1)), two counts of possession of a loaded prohibited weapon (s. 95(1)) and possessing a firearm while prohibited from doing so (s. 117.01(1)).

The Manitoba Court of Queen's Bench sentenced the accused as follows: concurrent sentences of nine years' imprisonment for the discharge firearm and aggravated assault convictions; concurrent sentences of six months for careless firearm storage, five years for each of the possession of a prohibited weapon convictions and three years for possessing a firearm while prohibited from doing so. The firearms sentences were concurrent to each other but consecutive to the other sentences. The total sentence of 14 years was reduced to 12 in consideration of the Gladue factors, the accused's age and the significant jump from the accused's last prior period of incarceration. The court gave the accused 6.5 years credit on a 1.5:1 basis for his 51.5 months of presentence custody, leaving a sentence remaining to be served of 5.5 years.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - During a domestic assault, the 20 year old aboriginal shot his girlfriend with a sawed-off 204 calibre Ruger rifle - He was convicted of discharging a firearm with intent to wound (s. 244 of the Criminal Code), aggravated assault (s. 268(1)), careless storage of a firearm (s. 86(1)), two counts of possession of a loaded prohibited weapon (s. 95(1)) and possessing a firearm while prohibited from doing so (s. 117.01(1)) - The Manitoba Court of Queen's Bench sentenced the accused as follows: concurrent sentences of nine years' imprisonment for the discharge firearm and aggravated assault convictions; concurrent sentences of six months for careless firearm storage, five years for each of the possession of a prohibited weapon convictions and three years for possessing a firearm while prohibited from doing so - The firearms sentences were concurrent to each other but consecutive to the other sentences - The total sentence of 14 years was reduced to 12 in consideration of the Gladue factors, the accused's age and the significant jump from the accused's last prior period of incarceration - The 14 year sentence was "unduly punitive" - Further, 12 years would have been a fit sentence had the accused been sentenced concurrently on all charges - The accused's personal background was both mitigating in terms of the Gladue factors, but also aggravating in that he remained a high risk to reoffend and was a danger to others - See paragraphs 16 to 41.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - During a domestic assault, the aboriginal accused shot his girlfriend with a sawed-off 204 calibre Ruger rifle - He was convicted of discharging a firearm with intent to wound (s. 244 of the Criminal Code), aggravated assault (s. 268(1)), careless storage of a firearm (s. 86(1)), two counts of possession of a loaded prohibited weapon (s. 95(1)) and possessing a firearm while prohibited from doing so (s. 117.01(1)) - The Manitoba Court of Queen's Bench noted that all six of the charges arose from the same fact scenario - Arguably, all could be sentenced concurrently - However, the firearms charges were more closely related to each other than the two charges that arose from the actual shooting - To reflect that difference, the court sentenced the discharge firearm and aggravated assault counts concurrently and the remaining four firearm counts consecutively, but concurrent to each other - See paragraphs 11 to 15.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. step or jump principle) - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5830.1

Sentencing - Considerations on imposing sentence - Mercy or leniency - During a domestic assault, the 20 year old aboriginal accused shot his girlfriend with a sawed-off 204 calibre Ruger rifle - He was convicted of discharging a firearm with intent to wound (s. 244 of the Criminal Code), aggravated assault (s. 268(1)), careless storage of a firearm (s. 86(1)), two counts of possession of a loaded prohibited weapon (s. 95(1)) and possessing a firearm while prohibited from doing so (s. 117.01(1)) - In sentencing the accused, the Manitoba Court of Queen's Bench noted that his prior convictions for robbery, firearms offences and participation in a riot while in custody disentitled him to the leniency that might otherwise have been afforded a young offender - Still, rehabilitation remained an important consideration - The court was troubled by the victim's continued support for the accused - She displayed "classic signs of a dependent, battered woman" - Further, the accused displayed no remorse - The court was uncertain that he realized the impact of his actions - This was not an aggravating factor, but neither was it a mitigating factor - See paragraph 34.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5830.1 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5830.1 ].

Criminal Law - Topic 5835

Sentencing - Considerations on imposing sentence - Protection of the public - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5830.1 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - During a domestic assault, the 20 year old aboriginal shot his girlfriend with a sawed-off 204 calibre Ruger rifle - He was convicted of discharging a firearm with intent to wound (s. 244 of the Criminal Code), aggravated assault (s. 268(1)), careless storage of a firearm (s. 86(1)), two counts of possession of a loaded prohibited weapon (s. 95(1)) and possessing a firearm while prohibited from doing so (s. 117.01(1)) - At sentencing, the accused had spent 51.5 months in custody - The Manitoba Court of Queen's Bench, having sentenced the accused to a global sentence of 12 years' imprisonment, gave the accused 6.5 years credit on a 1.5:1 basis for his presentence custody, leaving a sentence remaining to be served of 5.5 years - The accused had not been a "model prisoner", having participated in a riot, a fight and other incidents - He was currently held on a "gang tier" and had expressed no interest in job opportunities or programming - However, the court was "not prepared to penalize him by reducing his normal pre-sentence custody credit from 2:1 to 1:1" - None of the four year delay was the accused's fault - Credit on a 1.5:1 basis was appropriate - See paragraphs 42 to 45.

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5871

Sentence - Possession and use of sale of weapons or ammunition - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm or ammunition - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5877.2

Sentence - Possession of firearm, ammunition, etc., in breach of prohibition order - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5903

Sentence - Discharge of firearm with intent or recklessness - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5804 ].

Cases Noticed:

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 11].

R. v. P.K. (2012), 280 Man.R.(2d) 258; 548 W.A.C. 258; 2012 MBCA 69, refd to. [para. 12].

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. 19].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 28].

R. v. Krzyworaczka (M.S.), [2006] O.A.C. Uned. 4; 2006 CarswellOnt 101 (C.A.), refd to. [para. 36].

R. v. Clark (M.B.) (2008), 446 A.R. 148; 442 W.A.C. 148; 2009 ABCA 24, refd to. [para. 36].

R. v. Boissonneault (M.J.) (2012), 280 Man.R.(2d) 114; 548 W.A.C. 114; 2012 MBCA 40, refd to. [para. 36].

R. v. Laing (K.P.) (2010), 487 A.R. 118; 495 W.A.C. 118; 2010 ABCA 70, refd to. [para. 36].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148; 2005 MBCA 149, refd to. [para. 43].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 43].

Counsel:

Daniel Chaput and Adam Bergen, for the Crown;

Sarah Inness, for the accused.

This matter was heard by Martin, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 26, 2014.