Diamond Sky Caribou v. His Majesty the King

(Manitoba) (Criminal) (By Leave)


Charter of Rights — Criminal law — Sentencing – Judicial credit for sentencing — Whether the Manitoba Court of Appeal erred in law and principle by requiring direct evidence, expert or otherwise, of eligibility for parole or early release to consider the properly pleaded Charter challenge before it? — Whether Parliament’s ultimate limitation of 1.5 to 1 for judicial credit for pre-sentence custody is consistent with s. 7 of the Charter


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After the applicant was convicted by jury of manslaughter, the trial judge in the Court of Queen’s Bench of Manitoba imposed a sentence of 13 years’ imprisonment, less credit for pre-sentence custody at a rate of 1.5:1. At the sentencing hearing, the applicant filed a motion asserting that the cap on the credit for pre-sentence custody at 1.5:1 set out in s. 719(3) and (3.1) of the Criminal Code, R.S.C. 1985, c. C-46, should be struck down for violating s. 7 of the Canadian Charter of Rights and Freedoms, which the trial judge dismissed. He found it unnecessary to resort to a Charter remedy as the issue raised by the applicant could be addressed as part of the sentencing process. In the alternative, he concluded that the limitation in those provisions does not violate s. 7 of the Charter.

On appeal, the applicant argued that the trial judge erred in failing to consider the constitutional challenge, in alternatively finding that the provisions did not infringe s. 7, and in imposing a sentence that was harsh and excessive. The Manitoba Court of Appeal unanimously granted the application for leave to appeal the sentence, but dismissed the applicant’s sentence appeal.

Lower Court Rulings

May 25, 2021
Court of Queen’s Bench of Manitoba

CR 19-01-37559
Charter motion dismissed; sentence of 13 years’ imprisonment less credit for pre-sentence custody at a rate of 1.5:1 imposed for offence of manslaughter
December 6, 2022
Court of Appeal of Manitoba

2022 MBCA 95, AR21-30-09636
Leave to appeal sentence granted; sentence appeal dismissed