In R. v. Wood, 2022 MBCA 46, May 12, 2022, the accused was sentenced to a period of eighteen years of imprisonment for the offence of manslaughter in relation to his intimate partner.  The accused and the deceased were of Indigenous heritage.

The accused sought leave to appeal against sentence.  He argued that the sentencing judge “erred by overemphasizing the deceased’s vulnerability as an Indigenous woman” (see paragraph 1).

The Manitoba Court of Appeal granted leave to appeal, but dismissed the appeal.

The Court of Appeal noted that “sections 718.04 and 718.201 of the Code exist, in part, due to recommendations in the Canada, Reclaiming Power and Place:  The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Ottawa:  NIMMIWG, 2019) (the MMIWG Report).  This constitutes direct evidence of society’s evolving understanding of harm caused by violence against, and the vulnerability of, victims of intimate partner violence and the circumstances of victims who are Aboriginal and female.  The fact that these factors have been considered in earlier case law does not detract from our evolving knowledge” (at paragraph 32).

Sections 718.04 and 718.201 of the Criminal Code:

The Court of Appeal held that “section 718.04 does not merely direct a sentencing judge to consider the circumstances of a vulnerable victim, including in circumstances where the victim is Aboriginal and female.  Rather, it mandates primary consideration of the objectives of denunciation and deterrence, factors that often lead to a harsher sentence…courts have recognized that section 718.201 is a substantive direction to the courts and not merely a recitation of the common law” (at paragraph 36 and 45).

Section 718.3(8) of the Criminal Code:

The Court of Appeal indicated that “section 718.3(8) reinforces the position that, for offences where violence is perpetrated against an intimate partner who is vulnerable because of personal circumstances—including because the person is Aboriginal and female—Parliament intended the court to consider these factors and increase sentences where appropriate…In this case, while recognizing that sections 718.04 and 718.201 were not in force at the time of this offence, the trial judge gave careful consideration to society’s and the courts’ increased knowledge of the harm to Indigenous females who are the victims of abuse by an intimate partner.  I am not convinced that he erred by overemphasizing the vulnerability of the deceased” (at paragraphs 49 and 50).

Conclusion:

In dismissing the appeal, the Manitoba Court of Appeal concluded that it was “not convinced that the sentence [was] demonstrably unfit” (at paragraphs 68 to 70):

I have reviewed the reasons of the trial judge throughout this decision.  To summarize, he considered the serious facts in this case, the history of abuse that the accused had perpetrated on the deceased, the background of the accused and his community, the principles of sentencing, the purpose underlying sections 718.04 and 718.201 of the Code, the range of sentences for manslaughter involving intimate partner abuse, the scope of violence that Indigenous women suffer, the interplay between the deceased’s status as an Indigenous woman and the Gladue factors of the accused and the notion that sentencing courts should ensure that sentences reflect our understanding of the harm suffered by Indigenous women.  At the end of the day, after weighing the aggravating and mitigating factors, the Gladue factors, and considering the principles and objectives of sentencing, he imposed the 18-year sentence.  In doing so, he held that a 15-year sentence would not “adequately account for [the accused’s] dangerousness and, more critically, would not place enough emphasis on the vulnerability of Indigenous women as a factor in sentencing such an offender” (at para 57).

In my view, the trial judge’s reasons were sound and clearly demonstrate why he concluded the sentence was proportionate and is not inconsistent with the principle of parity. His decision is entitled to deference, and I am not convinced that the sentence is demonstrably unfit.

For these reasons, I would grant leave to appeal, but dismiss the appeal.