Jump principle properly considered in sentencing, Appeal court decides

Law360 Canada (February 14, 2025, 2:55 PM EST) --

John L. Hill

Sentencing is often said to be the most challenging part of a trial judge’s duties. As pointed out in R. v. Hamilton (2004), 189 O.A.C. 90 (C.A.), sentencing is a human process that requires a look at the specific offence as well as the unique attributes of the offender.

The violent actions of Christopher Wayne Dan Guiboche did not make the conclusion reached by a sentencing judge in the Manitoba Provincial Court an easy matter. Yet when the Crown appealed what it considered an inordinately low sentence to the Manitoba Court of Appeal, the court heard and dismissed the appeal on the same day, Jan. 15, 2025, with a written decision released two weeks later (R. v. Guiboche, 2025 MBCA 8).

Guiboche was a gang member with a lengthy property-related criminal history. On March 11, 2022, he was drinking and playing pool in a bar with a fellow gang member. He and his associate became embroiled in a dispute with a bar patron. They followed the man outside to a parking lot. Guiboche, handgun in hand, fired at the man three times, hitting him in the hip/buttock area. Guiboche and his friend fled the scene but were later identified with surveillance video. When Guiboche was arrested 10 days later, he stated to police that he was so high on drugs he had no memory of the assault. The gun was never found. The victim recovered without any permanent injuries. Guiboche pleaded guilty to discharging a firearm.

The judge accepted Guiboche’s plea and sentenced the accused to five years’ incarceration less enhanced credit of three years and 12 days for pre-sentence custody. This resulted in a sentence of two years less a day to be served in a provincial facility, followed by three years of probation. The Crown’s appeal said the sentence was unfit. The Crown had asked for at least a seven-year term of imprisonment.

In arriving at the sentence, the provincial court judge considered Guiboche’s history. He was 40 years old when sentenced. He was a non-status Indigenous who was not exposed to Indigenous culture or spirituality while growing up. His youth was marked by neglect and trauma. Guiboche and his siblings were raised by an impoverished, alcohol-addicted mother who had been displaced from her own family during the 60s Scoop. The trial judge considered this background in applying factors set out in R. v. Gladue, [1999] 1SCR 688.

The sentencing judge also considered Guiboche’s rehabilitation efforts in having completed the Winding River treatment program. He had extricated himself from gang affiliation and now serves as a mentor for other inmates entering the program. He has upgraded his education and graduated from Grade 12. He has participated in over 30 other rehabilitative programs and workshops. He has impressed others with a change in attitude.

In imposing a sentence, the trial judge understood the paramountcy of general deterrence and denunciation as sentencing principles and the need to protect the public. He also understood proportionality as a fundamental principle (R. v. Ipeelee, 2012 SCC 13).

This was not a case where the sentence was demonstrably unfit or an unreasonable departure from sentences customarily imposed for similar offences (R. v. Lacasse, 2015 SCC 64).

The Appeal Court disagreed with the Crown that the video of the incident was proof that the attack on the bar patron was provoked and planned. Something happened at the bar, but nothing was entered in evidence sufficient to prove provocation or planning.

The Crown also argued the sentencing judge placed too much evidence on the jump principle. This precept cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. Even though the sentencing judge noted the five-year sentence was a significant increase from previous non-recent sentences, and the Alberta Court of Appeal has classified the jump principle as “one of the least significant mitigating factors”: (R. v. Mbah, 2024 ABCA 174), the sentencing judge did not err in its application.

Crucial to this appellate decision is the court’s recognition that sentencing and ranges are not intended as judicial straight jackets to constrain judges' discretion. The sentencing judge correctly balanced denunciation and deterrence with the prospects of rehabilitation.

The Crown had argued that the five-year sentence was the absolute minimum, and courts have imposed higher sentences for repeat offenders (R. v. Morrisey, 2000 SCC 39; R. v. Maytwayashing, 2018 MBCA 36). The Crown argued that reliance on a five-year minimum need not have been imposed when a sentence of seven to 11 years was more appropriate.

Nonetheless, the Appeal Court agreed that the sentencing judge appropriately weighed the aggravating and mitigating factors. While the sentence may seem low, given the deferential standard of review, it cannot be said that it was unfit.

The Crown appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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