R. v. Andrew (M.C.), 2008 BCCA 141

• Judge: Huddart, Tysoe and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 20, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 141;(2008), 252 B.C.A.C. 253 (CA)

R. v. Andrew (M.C.) (2008), 252 B.C.A.C. 253 (CA);

    422 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. AP.021

Regina (appellant) v. Melvin Clifford Andrew (respondent)

(CA035556; 2008 BCCA 141)

Indexed As: R. v. Andrew (M.C.)

British Columbia Court of Appeal

Huddart, Tysoe and Bauman, JJ.A.

March 20, 2008.

Summary:

The accused was convicted of manslaughter in the stabbing death of the victim. The trial judge determined that an appropriate sentence would be three years' imprisonment before credit for pre-trial custody. After giving four months' credit for two months' pre-trial custody, the trial judge imposed a conditional sentence of two years less a day. The Crown appealed the sentence.

The British Columbia Court of Appeal allowed the appeal and substituted a sentence of imprisonment for two years and five months' imprisonment. Given that the trial judge determined that the appropriate sentence exceeded two years' imprisonment, a conditional sentence was illegal. Credit for pre-trial custody could not result in a sentence exceeding two years' imprisonment being considered a sentence of less than two years for the purposes of the availability of a conditional sentence.

Criminal Law - Topic 5656

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Commencement of - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5662

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Remission - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Section 742.1(a) of the Criminal Code provided that a conditional sentence was available only where the court "imposes a sentence of imprisonment of less than two years" - The trial judge determined that an appropriate sentence would be three years' imprisonment before credit for pre-trial custody - After giving four months' credit for two months' pre-trial custody, the trial judge imposed a conditional sentence of two years less a day - The British Columbia Court of Appeal held that given that the trial judge determined that the appropriate sentence exceeded two years' imprisonment, a conditional sentence was illegal - Where a penitentiary term was warranted, but the duration of the sentence imposed was less than two years because of credit given for pre-trial custody, the total sentence exceeded two years and a conditional sentence was not available - Pre-trial custody was part of the total punishment and not a mitigating factor affecting the range of sentence and the availability of a conditional sentence - The appropriate range and availability of a conditional sentence depended upon the gravity of the offence and the offender's degree of responsibility - Pre-trial custody was relevant only in determining the length of the sentence actually imposed - The imposition of a sentence of less than two years under s. 742.1(a) was not the actual sentence imposed after credit for time served, but referred to the total sentence, which included time served - See paragraphs 10 to 14.

Criminal Law - Topic 5882

Sentence - Manslaughter - The 23 year old accused and victim were back seat passengers - The victim punched the accused - The vehicle stopped - The victim tried to prevent the accused from exiting, then followed him out - The accused pulled out his fishing knife and stabbed the victim twice in the chest, causing his death - Although charged with second degree murder, the jury convicted the accused of manslaughter - The accused was impaired by alcohol and drugs - He was diagnosed as a teenager with fetal alcohol syndrome - He was remorseful and had a minor criminal record for non-violent offences - At the time of sentencing, the accused was 25 and attending addiction counselling - The trial judge determined that an appropriate sentence was three years' imprisonment - However, after giving four months' credit for two months' pre-trial custody, the trial judge imposed a conditional sentence of two years less a day - The British Columbia Court of Appeal held that a conditional sentence was illegal where the appropriate sentence, before credit for pre-trial custody, exceeded two years' imprisonment - It was debatable whether a sentence of less than four years' imprisonment was appropriate, but a sentence of less than three years' imprisonment was clearly unfit - The court rejected the submission that it would be unfair to now incarcerate the accused, because he successfully completed five months of his conditional sentence and achieved rehabilitation would be jeopardized - The court stated that a fit sentence had to be substituted for an illegal sentence, distinguishing this from cases where a conditional sentence was determined to be inappropriate, but not illegal - After credit for pre-trial custody, the court substituted a sentence of two years and five months' imprisonment - The sentence commenced on the date the illegal conditional sentence was imposed, but the accused was not to be credited with statutory remission for that five month period.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 5882 ].

Cases Noticed:

R. v. Gillies (A.J.) (1998), 107 B.C.A.C. 157; 174 W.A.C. 157 (C.A.), refd to. [para. 4].

R. v. Mintert (R.) (1995), 57 B.C.A.C. 232; 94 W.A.C. 232 (C.A.), refd to. [para. 8].

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146; 2005 SCC 32, folld. [para. 13].

R. v. Green (O.R.) (2001), 160 B.C.A.C. 121; 261 W.A.C. 121; 2001 BCCA 672, refd to. [para. 18].

R. v. Dhanda (S.S.) (2005), 218 B.C.A.C. 170; 359 W.A.C. 170; 2005 BCCA 533, refd to. [para. 18].

R. v. Seitcher (T.T.), [2007] B.C.A.C. Uned. 60; 2007 BCCA 255, refd to. [para. 18].

R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), refd to. [para. 20].

R. v. Lam (P.P.T.) (2003), 178 O.A.C. 275; 180 C.C.C.(3d) 127 (C.A.), refd to. [para. 20].

R. v. Charlie (M.P.) (2008), 251 B.C.A.C. 134; 420 W.A.C. 134; 2008 BCCA 44, refd to. [para. 20].

R. v. G.C.F. (2004), 189 O.A.C. 29; 188 C.C.C.(3d) 68; 71 O.R.(3d) 771 (C.A.), dist. [para. 24].

R. v. MacLaren (M.) (1999), 122 O.A.C. 176; 45 M.V.R.(3d) 120 (C.A.), refd to. [para. 26].

R. v. Birchall (R.D.) (2001), 155 B.C.A.C. 273; 254 W.A.C. 273; 158 C.C.C.(3d) 340; 2001 BCCA 356, refd to. [para. 28].

R. v. Walcot (M.F.) (2001), 152 B.C.A.C. 200; 250 W.A.C. 200; 154 C.C.C.(3d) 385; 2001 BCCA 342, refd to. [para. 28].

Hunt v. Calgary Correctional Centre (Director) et al. (2003), 330 A.R. 157; 299 W.A.C. 157; 177 C.C.C.(3d) 309; 2003 ABCA 200, refd to. [para. 30].

Counsel:

K. Madsen, for the Crown/appellant;

J.R. Ray, for the respondent.

This appeal was heard on March 13, 2008, at Vancouver, B.C., before Huddart, Tysoe and Bauman, JJ.A., of the British Columbia Court of Appeal.

On March 20, 2008, the judgment of the Court of Appeal was delivered orally and the following opinions were filed:

Tysoe, J.A. - see paragraphs 1 to 38;

Huddart, J.A. - see paragraphs 39, 41;

Bauman, J.A. - see paragraph 40.