R v Canto (ABCA): Leave to seek retroactive application of Summers decision on pre-trial custody credit denied

By |2017-09-28T23:44:38-06:0015/01/2016|Pre-Trial Custody, Procedure and Practice, Sentencing, Uncategorized|

In 2009, s. 719(3) of the Criminal Code was amended to state that credit for time spent in pre-trial custody would be capped at a presumptive maximum of 1 day, per day of pre-trial custody. However, under s. 719(3.1), a sentencing court could grant 1.5 days for every day in custody “if the circumstances justify it”. What such circumstances would be was not discussed. Prior to April 2014, a number of courts in Canada had held that the circumstances must be "exceptional" and the loss of eligibility for parole and statutory release was not--in itself--an exceptional circumstance. That changed in April 2014 when the Supreme Court of Canada ruled in R v Summers, 2014 SCC 26 (CanLII) that the loss of eligibility for parole and statutory release was a circumstance that could merit the granting of enhanced credit. After the Summers decision, courts in Alberta began granting 1.5 to 1 credit in most sentencing decisions. Mr. Canto was sentenced in 2012. He did not appeal his sentence at the time and his time to appeal that sentence expired. [...]

R v Gibson (ABCA): Two year sentence for impaired driving causing death was inadequate

By |2017-09-28T23:53:27-06:0003/02/2015|Impaired Driving, Sentencing|

In this case, the Court of Appeal upheld the decision of a sentencing judge to reject a joint submission for a two year sentence for an accused convicted of impaired driving causing death and upheld the sentence imposed of two years and eight months; noting, however, that a sentence of no less than four years ought to have been imposed: R v Gibson, 2015 ABCA 41 (CanLII). Gibson had pleaded guilty to impaired driving causing death and impaired driving causing bodily harm. Gibson was driving a large pick-up truck on a highway after visiting friends and consuming alcohol. The highway had one lane of travel in each direction. After he passed two semi tractor-trailers by pulling around them using the oncoming traffic lane, he did not return to his own lane of travel, but continued on the wrong side of the road for some distance. An oncoming vehicle took to the shoulder to avoid a serious collision, but was struck on the side by Gibson's vehicle. A second oncoming vehicle was struck more severely and [...]

R v Melnyk (ABCA): Application to reconsider starting point sentence for cocaine trafficking denied

By |2017-09-28T23:57:16-06:0026/09/2014|Drugs, Sentencing|

The Crown appealed a 90 day intermittent sentence imposed on Mr. Melnyk for trafficking in cocaine. In response, the defence made an application to re-argue the long-standing starting point set in  R v Maskell, 1981 ABCA 50 (CanLII). That case provides that a penitentiary term is the starting point sentence for commercial trafficking in cocaine on more than a minimal scale. The application for reconsideration was denied: R v Melnyk, 2014 ABCA 313 (CanLII). After reviewing the criteria set out in R v Arcand, 2010 ABCA 363 (CanLII) for reconsideration of a precedent decision, the panel concluded that it was not necessary to reconsider Maskell. Maskell, while an older decision, had been applied in more recent appeal decisions. While the defence had argued that the Maskell decision contained an obvious flaw, in that it did not clearly define what constituted commercial trafficking beyond a minimal scale, the panel concluded that this can be addressed by decisions developing "the indicia of commercial trafficking on more than a minimal scale". It was not necessary to reconsider the starting point decision. Image Credit: UK Home Office. Link. Licence.

R v Wauer (ABCA): Reasons must be given for s. 110 weapons prohibition orders

By |2017-09-28T23:59:48-06:0004/09/2014|Firearms, Procedure and Practice, Sentencing, Weapons|

The accused pleaded guilty to possession of a prohibited weapon (brass knuckles) and to the possession of other weapons (a machete and bear spray) for a purpose dangerous to the public peace. He had no prior criminal record and the Crown and defence both recommended a conditional discharge. The Crown also requested that the sentencing judge impose a weapons prohibition under section 110 of the Criminal Code. There was very little discussion as to the length of the weapons prohibition. The judge asked the Crown "Ten years?" and the Crown responded "Ten years." That was the length of ban imposed. No submissions were made by the defence on the length of the prohibition. Later, as other ancillary orders and issues were being discussed, defence counsel said that his client opposed the proposed prohibition order because his client was a hunter.  No reasons as to why the sentencing judge rejected the defence submission and accepted the Crown submission were given. The accused appealed his sentence, focusing specifically on the weapons prohibition order: R v Wauer, 2014 ABCA 270 [...]

Court of Appeal overturns CSOs in two breach-of-trust thefts

By |2017-09-29T00:24:04-06:0008/04/2014|Fraud, Sentencing, Theft|

The Alberta Court of Appeal has stressed in numerous cases in recent years that substantial thefts committed in breach of a position of trust, usually employment, should be met with sentences of incarceration, even for first offenders: see, e.g. R v Fulcher, 2007 ABCA 381, R v McKinnon, 2005 ABCA 8, R v Bracegirdle, 2004 ABCA 252. Many of the reported cases from our Court of Appeal in which these statements of principle have been stated most firmly deal with thefts in the hundreds of thousands of dollars. Fulcher involved thefts totalling almost $300,000; R v Zenari, 2012 ABCA 279 was a fraud resulting in losses of over $225,000. Bracegirdle was a theft of over $150,000. McKinnon involved a fraud of a smaller sum of about $61,000, but McKinnon was also a fourth-time offender. As a result, arguments in favour of conditional sentence orders for accused persons committing frauds in the tens of thousands are still frequently advanced by counsel before our courts. Two cases released recently by the Court of Appeal address breach-of-trust thefts that exceed $5,000, but don't reach into [...]

R v Schmitt (ABCA): Impact of sentence on family can’t override all other factors

By |2014-04-23T15:45:01-06:0028/03/2014|Disqualified Driving, Sentencing|

Mr. Schmitt is a repeat driving offender. When sentenced on the matter that later brought him to the Court of Appeal, he had two convictions for driving with an excess blood alcohol level, eight convictions for driving while disqualified and one for flight from police. He was, as of December 2012, subject to a lifetime prohibition from operating a motor vehicle in Canada. In December 2012, he was stopped while driving a vehicle with several passengers and charged with driving while disqualified. There was no emergency or mitigating circumstance. Mr. Schmitt simply feels, it was revealed in a pre-sentence report, that he needs to drive because he lives in rural Alberta. The Crown sought a sentence of nine months in gaol, plus a further lifetime driving prohibition. This would have been a step up from Mr. Schmitt's recent sentence for the same offence of six months in gaol. The sentencing judge  agreed that nine months in custody was an appropriate sentence, but continued: But you know why I’m not going to put you in gaol? [...]

R v Trapasso (ABCA): Robberies two days apart were not a “spree”

By |2016-11-16T20:46:23-07:0003/03/2014|Sentencing|

Mr. Trapasso committed two robberies two days apart. He first robbed a convenience store, stealing $500. Two days later, he robbed a bank while his face was covered with a bandanna. In total, he robbed from three bank tellers, netting about $12,000. "Starting point" sentencing decisions in Alberta suggest a guideline of three years of gaol for convenience store robberies (R. v. Johnas, 1982 ABCA 331) and four years gaol for bank robberies (R. v. Brennan, 2003 ABCA 300). The accused had a lengthy criminal record and some factors of the bank robbery, in particular, suggested that a sentence higher than the starting point would be appropriate. The sentencing judge had imposed two five year sentences on the robberies, making them concurrent to each other. A shorter concurrent sentence had also been ordered for committing an offence while disguised.  The Crown appealed the sentence, arguing that the sentence ought not to have treated these criminal acts as a "spree", resulting in the imposition of a global sentence which was below the appropriate range. The Court of Appeal [...]

R v Severight (ABCA): Court cannot impose unwarranted determinate sentence to avoid dangerous offender designation

By |2014-04-23T15:45:10-06:0028/01/2014|Dangerous Offender, Pre-Trial Custody, Sentencing|

In 2007, Jason Kyle Severeight ("Severight") committed a serious assault on an ex-partner, resulting in convictions after a trial for aggravated assault and possession of a weapon for a dangerous purpose. The aggravated assault included an attempt to slash the complainant to her throat, which was fended off. The complainant received slash marks on her hands and legs during the assault. The sentencing judge accepted that three earlier and similar assaults had been committed by the accused against the complainant. Those earlier assaults had resulted in criminal charges, but not convictions. On each of those earlier assaults, the complainant had recanted. The circumstances of the 2007 assault, and the earlier offences considered in the dangerous offender hearing, are set out in the decision of Provincial Court Judge E.A. Johnson: 2010 ABPC 329. The Crown sought to have Severight designated as a dangerous offender. In the course of accepting the Crown's position, the sentencing judge found that the appropriate determinate sentence for the aggravated assault was 10 years in gaol, which would be reduced by between [...]

R v Omeasoo: Sentences for alcoholics who breach abstention conditions should reflect their level of responsibility

By |2016-11-16T20:46:23-07:0013/12/2013|Failure to Comply or Breach, Judicial Interim Release, Procedure and Practice, Sentencing|

Courts, counsel and police officers often struggle with the question of whether to grant release to accused persons on conditions that they abstain from the consumption of alcohol or drugs. Some accused are addicted to the substances they are abusing and compliance is difficult or nearly impossible for them. A recent decision by Judge Rosborough from the Provincial Court of Alberta, R. v. Omeasoo, 2013 ABPC 328, provides some guidance on this, and also discusses the sentencing of offenders who have breached abstinence conditions. Judge Rosborough's comments came in written reasons for sentences his Honour had previously imposed on two individuals. One of the offenders had been sentenced to one day in gaol (having served 6 days in custody since her arrest). The second had been sentenced to a $100 fine, with waiver of the victim fine surcharge. At the time of the second offender's sentencing, he was already serving a 30 day sentence for several other breaches, which were all related to alcohol. Both of the offenders, Omeasoo and Okeynan, were aboriginal persons with long histories of alcoholism and [...]

R v Kunath: 10 year sentence for two aggravated sexual assaults on infant upheld

By |2014-04-23T15:46:00-06:0020/11/2013|Sentencing, Sexual Assault|

In R. v. Kunath, 2013 ABCA 372, the Alberta Court of Appeal upheld a 10 year sentence imposed after a guilty plea to two counts of aggravated sexual assault committed against a six week old infant. The victim was the child of the accused's girlfriend. The assaults were extensive and disturbing, involving injuries to the penis and anus of the child, as well as burns likely inflicted by a lighter to the feet of the child. The Alberta Court of Appeal had signalled, beginning in the case of R. v. Nickel, 2012 ABCA 158 (a case involving serious assaults against an infant which was not sexual in nature), that sentences for assaults on minors required an adjustment towards sentences with a greater emphasis on deterrence and denunciation by way of lengthier jail terms. The Court of Appeal noted that that case had appropriately been considered by the sentencing judge. The sentencing judge found in Kunath that the gravity of the offences was "exceedingly serious" and the harm to the victim and society as a whole was "extreme". [...]

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