R. v. Blanchard (R.R.), 2009 YKCA 15

• Judge: Donald, Huddart and Groberman, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: November 25, 2009
• Jurisdiction: Yukon
• Citations: 2009 YKCA 15;(2009), 278 B.C.A.C. 244 (YukCA)

R. v. Blanchard (R.R.) (2009), 278 B.C.A.C. 244 (YukCA);

    471 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.001

Regina (appellant) v. Robert Richard Blanchard (respondent)

(YU629; 2009 YKCA 15)

Indexed As: R. v. Blanchard (R.R.)

Yukon Court of Appeal

Donald, Huddart and Groberman, JJ.A.

November 25, 2009.

Summary:

In 2003, the accused was charged with, inter alia, impaired driving. He was a chronic alcoholic with 10 prior alcohol-related convictions and five convictions for driving while disqualified. In 2006, rather than convict him, the trial judge granted a curative treatment discharge under s. 255(5) of the Criminal Code. In January 2009, the curative treatment discharge was revoked for non-compliance, nine days before it would have expired. At issue was the appropriate sentence for the original impaired driving and whether the trial judge was entitled to consider the accused's post-offence conduct and time spent in the community on strict conditions. The trial judge held that he was entitled to consider such conduct and imposed the statutory minimum sentence of three months' imprisonment plus three years' probation on strict conditions. The Crown appealed, submitting that the trial judge should have sentenced the accused on the basis of the circumstances existing at the time of the offence and that denunciation and deterrence mandated a sentence at the maximum of two years less a day.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 4434

Procedure - Verdicts, discharge and dismissals - Discharge conditional upon curative treatment (incl. revocation and sentencing) - In 2003, the accused, a chronic alcoholic, was charged with impaired driving - He had 10 prior alcohol-related convictions and five convictions for driving while disqualified - In 2006, rather than convict him, the trial judge granted a curative treatment discharge under s. 255(5) of the Criminal Code - In January 2009, nine days before it expired, the curative treatment discharge was revoked for non-compliance - At issue was the appropriate sentence for the original impaired driving and whether the trial judge could consider the accused's post-offence conduct and time spent in the community on strict conditions - The trial judge held that he was entitled to consider such conduct and imposed the statutory minimum sentence of three months' imprisonment plus three years' probation on strict conditions - The Crown appealed, submitting that the trial judge should have sentenced the accused on the basis of the circumstances existing at the time of the offence and that denunciation and deterrence mandated a sentence at the maximum of two years less a day - The Yukon Court of Appeal dismissed the appeal - The trial judge was entitled to consider conduct and circumstances, favourable to the accused, that arose between the discharge and the revocation, such as the accused's attempts to deal with his alcoholism and the fact that he had apparently not driven a motor vehicle since 2003 - The court stated that "the Crown has not established an error that would permit this court to intervene with a sentence that does not substantially and markedly depart from the sentences customarily imposed for similar offenders committing similar crimes in the Yukon".

Criminal Law - Topic 5842.1

Sentencing - Considerations on imposing sentence - Post-conviction, post-charge or post-discharge conduct - [See Criminal Law - Topic 4434 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - [See Criminal Law - Topic 4434 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - [See Criminal Law - Topic 4434 ].

Cases Noticed:

R. v. Donnessey, [1990] Y.J. No. 138 (C.A.), refd to. [para. 4].

R. v. Khosa (S.S.) et al. (2003), 190 B.C.A.C. 42; 311 W.A.C. 42; 2003 BCCA 645, refd to. [para. 7].

R. v. Wallner (1988), 89 A.R. 282; 44 C.C.C.(3d) 358 (C.A.), refd to. [para. 8].

R. v. Joe (A.F.), [2005] Yukon Cases (TerrCt) 21; 2005 YKTC 21, refd to. [para. 14].

R. v. Demas (E.M.) (2006), 401 A.R. 47; 391 W.A.C. 47; 2006 ABCA 308, dist. [para. 14].

R. v. Blanchard (R.R.), [2006] Yukon Cases (SC) 35; 2006 YKSC 35, refd to. [para. 14].

R. v. Joe (L.), 2008 YKTC 65, refd to. [para. 16].

R. v. Craft (R.S.), [2006] Yukon Cases (TerrCt) 19; 2006 YKTC 19, refd to. [para. 16].

R. v. Tuckey (1977), 34 C.C.C.(2d) 572 (Ont. C.A.), dist. [para. 19].

R. v. Clermont, [1988] 2 S.C.R. 171; 45 C.C.C.(3d) 480 (S.C.C.), affing. (1986), 30 C.C.C.(3d) 571 (Que. C.A.), dist. [para. 19].

R. v. Oakes (1977), 37 C.C.C.(2d) 84 (Ont. C.A.), dist. [para. 19].

R. v. Slatter, [1975] 3 All E.R. 215 (Crown Ct.), refd to. [para. 20].

R. v. Graham (1975), 27 C.C.C.(2d) 475 (Ont. C.A.), refd to. [para. 20].

R. v. Linklater (1983), 9 C.C.C.(3d) 217 (Yuk. C.A.), refd to. [para. 21].

R. v. Johnson (1972), 6 C.C.C.(2d) 380 (B.C.C.A.), refd to. [para. 22].

R. v. Gladstone (1978), 40 C.C.C.(2d) 42 (B.C. Co. Ct.), refd to. [para. 23].

R. v. Ziatas (1973), 13 C.C.C.(2d) 287 (Ont. C.A.), refd to. [para. 23].

R. v. T.R. (1984), 51 A.R. 63; 11 C.C.C.(3d) 49 (Q.B.), refd to. [para. 24].

R. v. Marquardt, [1985] O.J. No. 2436 (Prov. Ct.), refd to. [para. 24].

R. v. Jansons (J.A.) (2008), 260 B.C.A.C. 254; 439 W.A.C. 254; 2008 YKCA 15, reving. 2008 YKTC 25, refd to. [para. 28].

R. v. Johns (J.C.), [1996] 1 C.N.L.R. 172; 66 B.C.A.C. 97; 108 W.A.C. 97 (Yuk. C.A.), refd to. [para. 37].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 39].

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, refd to. [para. 39].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 43].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 255(5) [para. 9]; sect. 730(1), sect. 730(4) [para. 11]; sect. 732.2(5) [para. 12].

Authors and Works Noticed:

Manson, Allan, The Law of Sentencing (2001), p. 244 [para. 19].

Counsel:

D. McWhinnie, for the Crown/appellant;

J. Van Wart, for the respondent.

This appeal was heard on October 16, 2009, at Vancouver, B.C., before Donald, Huddart and Groberman, JJ.A., of the Yukon Court of Appeal.

On November 25, 2009, Huddart, J.A., delivered the following judgment for the Court of Appeal.