R. v. Knott , 2012 SCC 42, R. v. Knott, 2012 SCC 42, 2012 SCC 42 (2012)

Docket Number:33911
 
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SUPREME COURT OF CANADA

Citation: R. v. Knott, 2012 SCC 42

Date: 20120731

Docket: 33911

Between:

Damon William Knott

Appellant and

Her Majesty The Queen

Respondent

And Between:

D.A.P.

Appellant and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 72)

Fish J. (McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. knott

Damon William Knott Appellant v.

Her Majesty The Queen Respondent

- and -

D.A.P. Appellant v.

Her Majesty The Queen Respondent

Indexed as: R. v. Knott

2012 SCC 42

File No.: 33911.

2011: December 14; 2012: July 31.

Present: McLachlin C.J. and Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis JJ.

on appeal from the court of appeal for british columbia

Criminal Law - Sentencing - Probation - Courts empowered to issue probation orders in addition to imprisonment for a term not exceeding two years - Whether "imprisonment for a term not exceeding two years" relates only to imprisonment imposed by a sentencing court at a single sitting or the aggregate of all sentences imposed on offender - Whether probation can be ordered where offender is subject to multiple sentences that, if aggregated, exceed two years - Criminal Code, R.S.C. 1985, c. C-46, s. 731(1)(b).

In August 2005, the appellant K received a sentence of 24 months' imprisonment with three years' probation and a concurrent sentence of 12 months' imprisonment with three years' probation. Less than one month later, on a different matter, he received a concurrent sentence of 16 months' imprisonment with three years' probation. One week before the expiry of the 24 month sentence, he received a consecutive sentence of six months' imprisonment. He later received a consecutive sentence of eight months' imprisonment with one year's probation. In June 2008, the appellant D.A.P. received a conditional sentence of two years less a day with two years' probation. He breached that sentence and committed other offences. In February 2009, his conditional sentence was converted into a custodial term and he received concurrent sentences of three years' imprisonment and six months' imprisonment for the additional offences. On appeal, the appellants contested the probation orders claiming that s. 731(1)(b) of the Criminal Code only permits such orders where there is "imprisonment for a term not exceeding two years", and that this consists of the aggregate of all custodial terms. The Court of Appeal confirmed the probation orders.

Held: The appeals should be dismissed

The probation orders imposed on the appellants were valid when made and no prior or subsequent sentences invalidated them, either prospectively or retrospectively. The phrase "imprisonment for a term not exceeding two years" relates only to the actual term of imprisonment imposed by a sentencing court at a single sitting. It does not refer to the aggregate of the custodial term imposed by the sentencing court and all other sentences then being served or later imposed on the offender. Nor must a probation order come into force within two years of being made. Probation orders, however, may not be attached to a sentence that does not exceed two years' imprisonment if that sentence results in continuous custody for more than two years when combined with other sentences imposed at the same sentencing session. Probation orders of this sort contravene s. 731(1)(b) of the Criminal Code.

Trial judges must retain as much flexibility as the Criminal Code permits in crafting individualized sentences that respect the principles and purposes of sentencing set out by Parliament in the Code. The result sought by the appellants would limit the availability of probation orders in an unwarranted manner and prevent sentencing judges from imposing, in appropriate cases, shorter custodial terms followed by community supervision for up to three years. Probation orders are intended to facilitate rehabilitation. An interpretation of the phrase "imprisonment for a term not exceeding two years" that includes all outstanding sentences would have the undesirable consequence of making probation orders unavailable to offenders who might well benefit from them. The sentencing objectives in the Criminal Code are best achieved by preserving non-custodial sentencing options. Not infrequently, the offender and society will both benefit from a probation order that comes into force following imprisonment for an aggregate period of more than two years.

In assessing the appropriateness of a fresh probation order, however, unexpired prior sentences remain an important consideration. Sentencing courts cannot disregard existing probation orders. A sentence must take into account the particular circumstances of the offence, the character and needs of the offender, and the purpose and relevant principles of sentencing. A probation order that is manifestly inappropriate in itself or that renders a sentence unfit will be set aside on appeal. As well, a probation order that was appropriate when made may be rendered inappropriate by a lengthy intervening term of imprisonment.

Cases Cited

Referred to: R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723; R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399; R. v. Pickell, 2007 CanLII 25672; R. v. Amyotte, 2005 BCCA 12, 192 C.C.C. (3d) 412; R. v. Pawlak, 2005 BCCA 500, 217 B.C.A.C. 146; R. v. McKinnon, 2008 BCCA 416, 237 C.C.C. (3d) 345; R. v. Miller (1987), 36 C.C.C. (3d) 100; R. v. Lucas, 2009 NLCA 56, 293 Nfld. & P.E.I.R. 90; R. v. Pauls, 2008 BCCA 322 (CanLII); R. v. K. (K.), 2009 ONCA 254, 244 C.C.C. (3d) 124; R. v. Hendrix (1999), 137 C.C.C. (3d) 445; R. v. Renouf, 2001 NFCA 56, 160 C.C.C. (3d) 173; R. v. Weir, 2004 BCCA 529 (CanLII); R. v. Currie (1982), 65 C.C.C. (2d) 415; R. v. Young (1980), 27 C.R. (3d) 85; R. v. Hennigar (1983), 58 N.S.R. (2d) 110; R. v. McPhee (1993), 128 N.S.R. (2d) 79; R. v. Amaralik (1984), 16 C.C.C. (3d) 22; R. v. Hackett (1986), 30 C.C.C. (3d) 159; R. v. Gill (1994), 162 A.R. 163; R. v. H.J.P. (1995), 133 Nfld. & P.E.I.R. 20; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

Statutes and Regulations Cited

Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 139.

Criminal Code, R.S.C. 1985, c. C-46, s. 718 to 718.2, 731(1), 732.2,...

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