Digest: R v Bear, 2018 SKCA 22

• Date: March 28, 2018

Reported as: 2018 SKCA 22

Docket Number: CA17132 , CACR 2949

Court: Court of Appeal

Date: 2018-03-28

Judges:

• Richards
• Caldwell
• Schwann

Subjects:

• Criminal Law � Appeal � Sentence - Choking
• Criminal Law � Joint Submission

Digest: The appellant pled guilty to charges of assault, assault causing bodily harm, choking and various lesser offences in relation to several domestic assaults, occurring over an eight-year period. His counsel and the Crown advanced a joint submission for a sentence of time served plus a conditional sentence order. The sentencing judge rejected the joint submission and imposed a global sentence of 21 months� imprisonment. The appellant appealed sentence. He argued that the sentencing judge applied the wrong legal test when deciding whether to accept the submission. In the alternative, he argued that an 18-month sentence for the choking offence was unfit.
HELD: The appeal was dismissed. The sentencing judge was clearly aware of the Supreme Court decision in R v Anthony-Cook and accurately captured the essence of that decision. It was clear that he assessed the joint submission as advancing a sentence that met the Anthony-Cook test. It was open to him to reject the joint submission. The appellant was a serial spousal abuser, his attacks on his spouse had escalated over time and he had a history of non-compliance with various release orders. It was unlikely he could comply with the terms of a conditional sentence order. Further, the sentencing judge explained his concerns about the joint submission and gave counsel an opportunity to address them. The appellant did not establish that the sentence of 18 months for the choking offence was demonstrably unfit. Choking is inherently dangerous, and parliament prescribed a maximum penalty of life in prison for such offence. There is no minimum sentence, nor did the Court of Appeal understand the sentencing judge�s comments to imply that he proceeded on basis. Sentences for choking vary considerably depending on the circumstances. In this case, the appellant had previous convictions for domestic assaults and outstanding charges for assault and assault causing bodily harm to his spouse.

Federal Statutes Considered:

• Criminal Code, RSC 1985, c C-46, s 246(a)
• Criminal Code, RSC 1985, c C-46, s 266
• Criminal Code, RSC 1985, c C-46, s 267(b)
• Criminal Code, RSC 1985, c C-46, s 606
• Criminal Code, RSC 1985, c C-46, s 718(b)
• Criminal Code, RSC 1985, c C-46, s...