R v Pham, 2012 ABCA 203

In this case, the Alberta Court of Appeal considered whether minor variations in a sentence should be granted for convicted persons with a prior criminal record where the accused may be subject to proceedings under the Immigration and Refugee Protection Act  (“IRPA”).  The Court held that where persons have a prior criminal record, minor variations of a sentence due to considerations under the IRPA do not apply.

In this case, the appellant had been earlier convicted of two drug offences. He was found guilty of unlawfully producing and possessing marijuana for the purposes of trafficking and was sentenced to a prison term lasting two years. He appealed on the basis that a sentence of two years had the unintended consequence of losing his right to appeal a deportation order under the IRPA and asked for a sentence variation to two years less a day. The prevailing practice has been to reduce the sentence of an appellant in cases where (1) the requested reduction is minimal and therefore will not render the sentence unfit, and (2) maintaining the original sentence carries with it unintended or collateral consequences. This approach has been fairly consistent across the country.

The Alberta Court of Appeal held that even minor variations should not be granted in cases where the appellant has a previous criminal record. The majority states, “[I]t would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.” In dissent, Justice Martin would have allowed the appeal based on the Crown's willingness to concede to a sentence of two years less a day (based on the prevailing practice).

Link to Decision

Brandon Walker

Mary Phan

*

R v Nickel, 2012 ABCA 158

This was a successful Crown appeal of the sentence given to an offender convicted of 
aggravated assault and failure to provide necessaries of life.  The charges stemmed 
from an incident where the defendant placed the feet of his nine-month-old 
daughter in recently boiled water and caused third degree burns. The sentencing 
judge, following R v Evans (1996 182 AR 21), categorized the defendant as an
unskilled parent who failed to appreciate the potential consequences and sentenced
 him accordingly. The ABCA finds that the sentencing judge erred and substitutes its own assessment of a fit sentence. Rejecting the Evans framework, the court outlines a process of analysis of moral culpability as relevant to sentencing.

In rejecting the framework provided in Evans, the court refrains from articulating another fixed framework for
sentencing in “child abuse” cases. Instead, they outline a process of analysis
 beginning with an assessment of the risk and materialization of harm to the child,
 and the level of the offender’s culpability. Evans suggested differentiation between 
intended and foreseeable harm and this judgment echoes that, but as a starting 
place for consideration rather than a rigid divide. Other considerations including 
the offender’s personal circumstances should be relevant, but this analysis removes
 Evans’ heavy emphasis on the offender.



Justices Martin and O’Brien dissented on the sentence imposed in this particular
case, but not on the rejection of Evans and the proposed new set of principles.

Link to Decision

Sarah Rankin
*

R. v. Nguyen, 2011 BCCA 471

In this case, the British Columbia Court of Appeal considered what form an order of forfeiture should take in the forfeiture provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended. The court held that an order of forfeiture should take the form of “property” rather than a “financial interest” in property, and accordingly allowed the appeal in part.

Both respondents were convicted of charges relating to marijuana offences. At the sentencing hearings, the trial judges ordered a forfeiture of a financial interest in their residential properties. The Court of Appeal set aside the form of the trial judges’ forfeiture orders, although the court affirmed the scope of the orders. The court relied on contrasting terminology in ss.19 and 19.1 and s.20: the former two employ “property” whereas s.20 refers to an “interest.” Additionally, orders in the form of financial interests would tend to blur the distinction between the sentencing process and the forfeiture process, a distinction that the Supreme Court stated  was necessary to maintain in R. v. Craig, 2009 SCC 23. Finally, the court rejected the financial interest form because this process would unduly prolong the criminal process.

November 24, 2011
Link to Decision

Fidelia Ho
*

R. v. Woodward, 2011 ONCA 610

In R. v. Woodward, the defendant challenged both his conviction and length of sentence in relation to the offence of luring by means of a computer system under (as it was then) s.172.1(1) of the Criminal Code. Writing for the court, Moldaver J.A., dismissed the appeal on both grounds and provided guidance as to the meaning of “computer system” under s.342.1(2) of the Code and the sentencing of offenders who engaged in the luring of children over the internet.

The appellant argued that text messaging via cell phone did not fall within the actus reus required under s. 172.1(1). Under that section a person must communicate with another by means of a computer system within the meaning of s. 342.1(2) of the Code. The court rejected the appellant’s argument, holding that text messaging required a “logic” and “control” function preformed by telephone networks to deliver messages between phones. This process amounted to a computer system. Supporting this finding, the court pointed out that Parliament has made two attempts to change the highly technical definition of computer system in the Code.

 The court also rejected the appellant’s argument that his sentence was in excess of the usual range of those convicted of similar offences. Moldaver J.A., noted that the decision of Rosenburg J.A. in R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.) has been incorrectly interpreted as setting the range of sentencing of 12 months to 2 years for offenders who engage in online luring. Instead, the court determined that internet luring was a pervasive social problem warranting stiffer sentences in the range of 3 to 5 years in order to meet the goals of deterrence, denunciation and separation of society. Moldaver J.A. then held that when considering a sentence in this type of case, “ the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.”

September 26, 2011
Link to Decision

Heather Palin
*

R. v. Tasew, 2011 ABCA 241

In R. v. Tasew the Alberta Court of Appeal considered the approach to be taken by a sentencing judge who identifies two alternative sentences, either of which would be fit for the offence and the offender. Slatter J.A., writing for the majority, held that in those circumstances the offender is entitled to receive the least onerous of the suitable sentences. Watson J.A. dissented in the result, but the Court was unanimous that it is not the mandate of the sentencing judge to compile a list of alternative sentences and leave it to the appellate court to select among them.

The trial judge sentenced the appellant to life imprisonment for attempted murder, but also identified a lighter alternative sentence that would be fit "in the case that someone considers the life imprisonment is inappropriate". Slatter J.A. noted that there is never one "fit" sentence, and it is possible that in a particular case several different sentences could meet the objectives of sentencing in the Criminal Code and survive appellate review. However, he held that despite the sentencing judge's good intentions, his approach was inconsistent with the proper administration of justice. Justice Slatter found that either sentence identified by the trial judge could have withstood judicial review, and imposed the alternative he identified because it was less onerous.

Watson J.A. agreed that the trial judge's approach was inappropriate and that an offender is entitled to receive the least onerous of potential fit sentences. However, he found that the alternative sentence was not fit and therefore would have affirmed the sentence imposed at trial.

August 9, 2011
Link to Decision

Diego Beltran, Marc Gibson & Daniel Lo
*

R. v. K.P., 2011 ABCA 233

In R v. K.P., the Alberta Court of Appeal ruled on the validity of a City of Calgary bylaw mandating minimum fines for both adult and young offenders. Justice Rowbotham held that the mandatory minimum fine provisions are inconsistent with the Youth Justice Act ("YJA") as s. 15(5) of that Act dictates that community service and/or probation may be imposed instead of a fine where appropriate.

The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.

July 29, 2011
Link to Decision

Sam Golder & Dominik Swierad
*

R. v. Goulet, 2011 ABCA 230

In this case, the Alberta Court of Appeal held that, in assessing whether the conduct of the accused gave rise to "endangerment" and therefore constituted a "serious personal injury offence" under the Criminal Code, the analysis focuses on the entire context in which the conduct occurred, and not only contextual factors relating to the conduct of the accused.

The respondent, while driving impaired, crashed into the complainant’s
 vehicle and seriously injured the complainant. At the time of the
 crash, many people were in the surrounding area and could have aided 
the injured complainant. The respondent fled the scene of the accident but was
 quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.

Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people
 at the scene to aid the injured driver, so there was no 
endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.

July 26, 2011
Link to Decision

Sam Golder & Kai Sheffield
*

R. v. Arganda (J.R.), 2011 MBCA 54

In R. v. Arganda, the Manitoba Court of Appeal reduced a sentence that the Court found unfit at the time of its imposition due to facts not known to the sentencing judge, and held that the sentence could not nonetheless be upheld given the post-sentence criminal conduct of the accused.

The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.

The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.

July 15, 2011
Link to Decision

Mark Carter & Kai Sheffield
*

T. (R.A.) v. British Columbia (Attorney General), 2011 BCCA 263

In T. (R.A.), the British Columbia Court of Appeal held that a person is "subject to a sentence” within the meaning of s. 490.02 of the Criminal Code when they are subject to a lifelong firearms ban in accordance with s. 109 of the Criminal Code.

The appellant was convicted of sexual assault in 1994 and sentenced to both a prison sentence and a lifelong firearms ban. After the completion of the appellant’s prison sentence, Parliament passed the Sexual Offender Information Registration Act. It required the registration and reporting of individuals convicted of certain crimes such as sexual assault. The Act only applies retrospectively if the offender was still “subject to a sentence.” The appellant challenged that the Act did not apply to him as the prohibition did not qualify as a sentence. Saunders J.A. rejected this argument, finding that other areas of the Criminal Code treat a firearms prohibition as a sentence, and drawing support from a previous sentencing case, R. v. Ferguson.

June 8, 2011

Link to Decision

Sam Golder, Kai Sheffield & Dominik Swierad

R. v. Roncaioli, 2011 ONCA 378

In R. v. Roncaioli, the Ontario Court of Appeal clarified the approach the sentencing judge should take in determining the appropriate sentence where the basis of the jury's verdict is ambiguous. Laskin J.A., writing for the court, held that sentencing judge must sentence according to his or her independent determination of the facts, consistent with the jury's verdict.

The appellant was a retired medical doctor who was convicted of manslaughter in the death of his wife and sentenced to seven years' imprisonment. At trial, it was unclear whether the jury had found him guilty based on criminal negligence or an unlawful act, but the trial judge sentenced the appellant on the basis of her own finding that an aggravated assault had taken place. 

The appellant referred to previous Ontario Court of Appeal decisions R v. Cooney and R. v. Craig to argue that the sentencing judge is "obligated to give to the convicted accused the benefit of the doubt regarding the basis on which he was convicted by the jury".  Because the basis of the jury's verdict was unclear, he argued that he should therefore have been sentenced based on the less morally blameworthy charge of manslaughter by criminal negligence. Laskin J.A. found the previous jurisprudence inconsistent with Supreme Court of Canada decisions R. v. Brown, R. v. Tempelaar and R. v. Ferguson. He affirmed the trial judge's factual findings and grounds for the sentence imposed, including the necessity of denouncing the abuse of a doctor's special skills "to cause deadly harm." After dismissing the conviction appeal, Justice Laskin dismissed the sentence appeal as well.


May 13, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0378.htm


Webnesh Haile & Minsuk Kim

R. v. Ladue, 2011 BCCA 101

The issue on this appeal was how s. 718.2(e) of the Criminal Code should be applied where an Aboriginal offender has breached a condition of a long-term supervision order. In 2003, the appellant was sentenced to three years’ imprisonment for breaking into a dwelling house and committing sexual assault. This was his fourth conviction for similar sexual offences, amongst approximately 40 prior convictions. He conceded the long-term offender designation sought by the Crown, and a seven-year supervision order was imposed. Following his release from custody in 2006, he was convicted of three breaches of the condition of the order that he abstain from consuming intoxicants, and was returned to custody. There was a delay in his release in 2009, which resulted in his inability to occupy a space in a Kamloops halfway house where he would have received the support of an Aboriginal elder. He was instead sent to a halfway house in downtown Vancouver, where he was immediately exposed to drugs. He tested positive for their use on several occasions, and was sentenced to three years’ imprisonment after pleading guilty to breaching the supervision order. He argued on appeal that the sentencing judge failed to give effect to his Aboriginal heritage and to s. 718.2(e) of the Code, and that the sentence was demonstrably unfit in the circumstances.

The appellant grew up in extremely disadvantaged circumstances. His parents had significant substance abuse problems, and passed away when he was very young. He initially lived with his grandparents, but was removed from his community and placed in a residential school at the age of five, where he was sexually abused. He began consuming alcohol at the age of nine, and had abused alcohol and/or illicit drugs for all but a six-year period since that time. His criminal convictions were closely linked to his substance abuse.

The majority of the Court of Appeal allowed the appeal on the basis that the sentencing judge failed to give sufficient weight to his Aboriginal heritage and to the principle of rehabilitation, leading her to impose an unfit sentence. The majority was of the view that, despite recognizing the appellant’s background and circumstances, she did not give “any tangible consideration” to his Aboriginal heritage, but, rather, gave undue weight to the principle of isolation of the offender. In this case, the appellant’s substance abuse was directly related to his treatment as an Aboriginal person. Despite his failed attempts to live in the community without breaching his supervision order, the majority noted that the appellant would need to learn how to manage his substance abuse in the community, and referred to his desire to do so.

The majority rejected the view that rehabilitation will play only a small role when sentencing long-term offenders, and found that the trial judge erred in concluding that it was no longer a factor for the appellant. They were of the view that the role of rehabilitation in sentencing will depend on the circumstances of the offender and is not dependent on his or her designation, and that the direction in s. 718.2(e) to exercise restraint with particular attention to Aboriginal offenders is still to be applied where the individual is a long-term offender.

The majority believed that a sentence of one year would properly reflect the principles and purpose of sentencing, allowing the appellant time to achieve sobriety and for correctional staff to find an appropriate place for him following his release.

 Chiasson J.A. dissenting, would have allowed the appeal in part. Although recognizing that the Aboriginal background of an offender is an additional factor to be taken into account by sentencing judges, he was of the view that there was no general rule necessitating an emphasis on rehabilitation when sentencing Aboriginal offenders. In the circumstances, the sentencing judge considered the appellant’s background, and Chiasson J.A. felt that it would be inappropriate for the Court to interfere with the weight the judge gave to the various factors she considered or her emphasis on the protection of the community. He would have reduced the appellant’s sentence to two years. The Supreme Court of Canada recently upheld the decision of the majority of the Court of Appeal, in reasons reported under R. v. Ipeelee, 2012 SCC 13.

March 8, 2011
Link to Decision

Julia Wilkes