R. v. Beaulieu (C.J.), (2015) 323 Man.R.(2d) 109 (CA)

• Judge: Monnin, Steel and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 13, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 323 Man.R.(2d) 109 (CA);2015 MBCA 90

R. v. Beaulieu (C.J.) (2015), 323 Man.R.(2d) 109 (CA);

      657 W.A.C. 109

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. OC.006

Her Majesty The Queen (respondent) v. Corey Jason Beaulieu (accused/appellant)

(AR 14-30-08247; AR 14-30-08251; 2015 MBCA 90)

Indexed As: R. v. Beaulieu (C.J.)

Manitoba Court of Appeal

Monnin, Steel and Burnett, JJ.A.

October 1, 2015.

Summary:

The accused pled guilty to fraud over $5,000 and received a conditional sentence order (CSO) of two years less a day pursuant to a joint recommendation. The accused breached both the curfew (first breach) and the community service (second breach) requirements of the CSO. The sentencing judge terminated his CSO. The accused appealed the termination of his CSO. Alternatively, he claimed that he should receive credit toward his CSO of the time spent on judicial interim release pending the hearing relating to the first breach (August 17, 2013 - June 11, 2014); and the time between the issuance of the warrant for the second breach and the execution of that warrant (April 30, 2014 - June 11, 2014).

The Manitoba Court of Appeal dismissed the appeal from the termination order, holding that the CSO was properly terminated. The court held, however, that the sentencing judge erred in failing to award credit for the time spent on judicial interim release pending the hearing relating to the first breach. The court awarded the accused credit for five months on his conditional sentence. The court declined to deal with the argument respecting credit for the second time frame as the matter was not raised previously (i.e., was a new issue on appeal).

Criminal Law - Topic 5720.6

Punishments (sentence) - Conditional sentence - Breach (incl. "collapsing" of) - Where an accused was alleged to have breached a conditional sentence order (CSO), the running of the CSO was suspended between the arrest of an accused and when the hearing was concluded (Criminal Code, s. 742.6(10)) - Pursuant to s. 742.6(16), the courts had discretion in exceptional circumstances to apportion some of that suspended time back to the running of an offender's CSO - Section 742.6(17) set out the factors to be considered when exercising that discretion - The Crown argued that s. 742.6(16) had to be read in conjunction with s. 719(2) of the Code which stated that "Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment on the person" - The Manitoba Court of Appeal interpreted these provisions, holding that s. 742.6(16), being a specific and later provision, should take precedence over the general provision of s. 719(2) - See paragraphs 30 to 40.

Criminal Law - Topic 5720.6

Punishments (sentence) - Conditional sentence - Breach (incl. "collapsing" of) - The accused pled guilty to fraud over $5,000 and received a conditional sentence order (CSO) of two years less a day pursuant to a joint recommendation - The accused breached both the curfew (first breach) and the community service (second breach) requirements of the CSO - The sentencing judge terminated his CSO - The accused appealed the termination, but argued alternatively, that unless he was credited for the 10 months during which he was on judicial interim release pending the hearing respecting the first breach, the termination of his CSO rendered his sentence unfit - The Manitoba Court of Appeal held that the CSO was properly terminated - However, the court gave the accused credit for five months on his conditional sentence pursuant to s. 742.6(16) of the Criminal Code, given the exceptional circumstances (i.e., a systemic delay involving Legal Aid and the courts) - See paragraphs 30 to 57.

Criminal Law - Topic 5720.7

Punishments (sentence) - Conditional sentence - Variation or amendment - [See both second Criminal Law - Topic 5720.6 ].

Criminal Law - Topic 5720.9

Punishments (sentence) - Conditional sentence - Appeals (incl. appeal re termination of conditional sentence) - The accused pled guilty to fraud over $5,000 and received a conditional sentence order (CSO) of two years less a day pursuant to a joint recommendation - The accused breached both the curfew (first breach) and the community service (second breach) requirements of the CSO - The sentencing judge terminated his CSO - The accused appealed the termination, but argued, alternatively, that he should receive credit toward his CSO of the time between the issuance of the warrant for the second breach and the execution of that warrant - The Manitoba Court of Appeal held that the CSO was properly terminated - However, the court declined to consider the alternative argument because it had not been raised earlier (i.e., it was a new issue raised for the first time on appeal) - See paragraph 69.

Criminal Law - Topic 5720.9

Punishments (sentence) - Conditional sentence - Appeals (incl. appeal re termination of conditional sentence) - [See second Criminal Law - Topic 5720.6 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See both Criminal Law - Topic 5720.6 ].

Statutes - Topic 1556

Interpretation - Construction where meaning not plain - Repeal by implication - [See first Criminal Law - Topic 5720.6 ].

Statutes - Topic 2613

Interpretation - Interpretation of words and phrases - Interpretation by context - Generalia specialibus (non) derogant - [See first Criminal Law - Topic 5720.6 ].

Cases Noticed:

R. v. Carpentier (R.J.) (2005), 201 Man.R.(2d) 1; 366 W.A.C. 1; 2005 MBCA 134, refd to. [para. 12].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 16].

R. v. Booh (I.) (2003), 170 Man.R.(2d) 249; 285 W.A.C. 249; 2003 MBCA 16, refd to. [para. 17].

R. v. Monaghan (B.D.) (2002), 212 Nfld. & P.E.I.R. 261; 637 A.P.R. 261; 2002 PESCAD 10, refd to. [para. 17].

R. v. Filipelli (L.S.) (2002), 165 O.A.C. 179 (C.A.), refd to. [para. 17].

R. v. Roberts (D.P.) (2003), 227 Sask.R. 271; 287 W.A.C. 271; 2003 SKCA 10, refd to. [para. 17].

R. v. Imbeault, 2011 QCCA 1676, refd to. [para. 17].

R. v. Peekeekoot (S.K.) (2005), 275 Sask.R. 117; 365 W.A.C. 117; 2005 SKCA 143, refd to. [para. 18].

R. v. Doddridge (S.J.) (2006), 384 A.R. 96; 367 W.A.C. 96; 2006 ABCA 125, refd to. [para. 18].

R. v. Bright (F.S.M.) (2009), 448 A.R. 387; 447 W.A.C. 387; 2009 ABCA 56, refd to. [para. 19].

R. v. Langley (T.E.) (2005), 216 B.C.A.C. 311; 356 W.A.C. 311; 2005 BCCA 478, refd to. [para. 20].

R. v. Woodhouse (D.C.) (2000), 148 Man.R.(2d) 122; 224 W.A.C. 122; 2000 MBCA 50, dist. [para. 35].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 37].

R. v. Atkinson (D.R.) (2003), 170 O.A.C. 117 (C.A.), refd to. [para. 39].

R. v. R.E.W. (2006), 207 O.A.C. 184 (C.A.), refd to. [para. 42].

R. v. Hutchings, 2002 BCPC 517, refd to. [para. 43].

R. v. McPhee (E.G.) (2004), 184 Man.R.(2d) 125; 318 W.A.C. 125; 2004 MBCA 43, refd to. [para. 65].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, leave to appeal denied (2009), 398 N.R. 397; 251 Man.R.(2d) 320; 478 W.A.C. 320 (S.C.C.), refd to. [para. 65].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 66].

St. Clements (Rural Municipality) v. Zucawich (2013), 294 Man.R.(2d) 146; 581 W.A.C. 146; 2013 MBCA 65, refd to. [para. 66].

Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality) (2015), 315 Man.R.(2d) 291; 630 W.A.C. 291; 2015 MBCA 26, refd to. [para. 66].

R. v. Youan, 2006 ONCJ 4, refd to. [para. 67].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(2), sect. 742.6(3), sect. 742.6(9), sect. 742.6(10), sect. 742.6(11), sect. 742.6(12), sect. 742.6(14), sect. 742.6(16), sect. 742.6(17) [para. 11].

Counsel:

A.K. Gowenlock, for the appellant;

N.P. Steen, for the respondent.

This appeal was heard on March 13, 2015, before Monnin, Steel and Burnett, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered by Steel, J.A., on October 1, 2015.