R. v. B.W.N., (2005) 282 N.B.R.(2d) 146 (CA)

• Judge: Larlee, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 17, 2005
• Jurisdiction: New Brunswick
• Citations: (2005), 282 N.B.R.(2d) 146 (CA);2005 NBCA 33

R. v. B.W.N. (2005), 282 N.B.R.(2d) 146 (CA);

    282 R.N.-B.(2e) 146; 738 A.P.R. 146

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.B.R.(2d) TBEd. MR.045

B.W.N. (appellant) v. Her Majesty the Queen (respondent)

(39/03/CA; 2005 NBCA 33)

Indexed As: R. v. B.W.N.

New Brunswick Court of Appeal

Larlee, Deschênes and Richard, JJ.A.

March 17, 2005.

Summary:

The Crown applied for an order declaring the accused a dangerous offender and impos­ing upon him a sentence of detention in a penitentiary for an indeterminate period.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 270 N.B.R.(2d) 201; 710 A.P.R. 201, al­lowed the application. The accused appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the fol­lowing case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The New Brunswick Court of Appeal held that the trial judge exercised his discretion judicially when, after hearing from the Crown, the defence and the jurors, he postponed his jury charge for three days because of upcoming bad weather - See paragraphs 20 to 27.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Deten­tion (incl. common law preventive deten­tion) - General - Considerations and condi­tions precedent - The New Brunswick Court of Appeal held that the governing principle for the application of the danger­ous offender provisions in the Criminal Code, as set out in R. v. Johnson (J.J.) (S.C.C.) was that once the criteria in s. 753(1) were met, but before a dangerous offender designation and an offender is sentenced to detention in a penitentiary for an indeterminate period, a sentencing judge had to be satisfied that the less restrictive means of the long-term offender provisions were not adequate to protect the public from the threat of harm - The court upheld a dangerous offender designation where the sentencing judge, six months before the decision in R. v. Johnson (J.J.), "rather prophetically" followed the governing principle adopted by the Supreme Court of Canada - See paragraphs 31 to 41.

Cases Noticed:

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161, appld. [para. 1].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 17].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 17].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433, refd to. [para. 17].

R. v. Smith (J.) (2001), 154 O.A.C. 51; 161 C.C.C.(3d) 1 (C.A.), refd to. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1)(a), sect. 753(1)(b) [para. 32].

Counsel:

Margaret Gallagher, for the appellant;

Randy W. DiPaolo, for the respondent.

This appeal was heard on September 16, 2004, by Larlee, Deschênes and Richard, JJ.A., of the New Brunswick Court of Ap­peal.

The decision of the Court of Appeal was delivered in both official languages on March 17, 2005, by Richard, J.A.