R. v. Boucher (R.), (2004) 187 O.A.C. 378 (CA)

• Judge: MacPherson, Simmons and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 26, 2004
• Jurisdiction: Ontario
• Citations: (2004), 187 O.A.C. 378 (CA);2004 CanLII 17719 (ON CA);186 CCC (3d) 479;[2004] OJ No 2689 (QL);187 OAC 378

R. v. Boucher (R.) (2004), 187 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.099

Her Majesty The Queen (appellant) v. Roland Boucher (respondent)

(C38360)

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

Ontario Court of Appeal

MacPherson, Simmons and Cronk, JJ.A.

June 25, 2004.

Summary:

An accused was convicted of attempting to murder his estranged wife and two counts of uttering threats to kill her. In addition to the 28 months' credit for time served, the trial judge sentenced the accused to imprisonment for two years less a day and probation for two years. The trial judge recommended that the accused receive counselling while incarcerated and ordered that he accept and continue counselling while on probation. The trial judge imposed 30 days' imprisonment on each count of uttering death threats, to be served concurrently. The Crown appealed the sentence for attempted murder.

The Ontario Court of Appeal allowed the appeal and varied the sentence imposed for attempted murder by increasing the period of probation to three years.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - The Ontario Court of Appeal stated that "... where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection." - See paragraph 24.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - An accused was convicted of, inter alia, attempting to murder his estranged wife - The accused, carrying a metal bar, ran towards the wife - The wife got in her car and drove away - The accused followed in his car and struck the wife's car causing her car to spin - The accused's vehicle went into the ditch - The wife drove away - The accused's conduct was planned and persistent - The wife suffered psychological trauma - In addition to 28 months' credit for time served, the trial judge imposed two years' imprisonment less a day and two years' probation - The trial judge recommended counselling while incarcerated and ordered counselling while on probation - The Ontario Court of Appeal, emphasizing denunciation and deterrence, concluded that an appropriate sentence was six years' imprisonment less credit for time served - However, the court declined to interfere with the sentence, other than to increase the probation period to three years - The accused had been released from prison several months earlier and had not attempted to contact the wife - Re-incarceration might have a potentially deleterious impact, particularly in relation to rehabilitation, and was not in the interests of justice.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - The Ontario Court of Appeal held that a sentencing judge erred in concluding that the accused was more likely to receive treatment and remain subject to appropriate control if sentenced to the Provincial correctional system rather than to the Federal penitentiary system without specific evidence to that effect - The court stated that "Although it may be appropriate in some cases to depart from a sentencing range to ensure that a convicted person will receive specific treatment that has been prearranged, such a departure is not appropriate where it is unclear that particular treatment will be provided and where there is no evidence concerning the treatment and supervision that would be available if a sentence in the appropriate range was imposed." - See paragraphs 30 to 32.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim - The Ontario Court of Appeal stated that, in the context of attempted murder, the absence of physical injuries to a complainant was a function of chance and did not necessarily justify a significant reduction in the range of sentence that was otherwise appropriate - See paragraph 23.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5834.2 ].

Criminal Law - Topic 5849.3

Sentencing - Considerations on imposing sentence - Adequacy of penal institutions - [See Criminal Law - Topic 5832 ].

Criminal Law - Topic 5881

Sentence - Murder - Attempts - [See both Criminal Law - Topic 5831.9 and Criminal Law - Topic 5834.2 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See second Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See second Criminal Law - Topic 5831.9 ].

Cases Noticed:

R. v. Kienapple (1974), 1 N.R. 322; 15 C.C.C.(2d) 524 (S.C.C.), refd to. [para. 1, footnote 1].

R. v. Ahmed-Saidi (A.) (2001), 140 O.A.C. 346 (C.A.), refd to. [para. 21, footnote 2].

R. v. Campbell (R.) (2003), 170 O.A.C. 282 (C.A.), refd to. [para. 21, footnote 2].

R. v. Edwards (S.) (2001), 147 O.A.C. 363 (C.A.), refd to. [para. 21, footnote 2].

R. v. Corpus (M.) (2000), 130 O.A.C. 84 (C.A.), refd to. [para. 21, footnote 2].

R. v. Edwards (D.A.); R. v. Levo (A.E.) (1996), 88 O.A.C. 217 (C.A.), refd to. [para. 21, footnote 2].

R. v. Spurway (K.) (1996), 94 O.A.C. 58 (C.A.), refd to. [para. 21, footnote 2].

R. v. Denkers (F.P.) (1994), 69 O.A.C. 391 (C.A.), refd to. [para. 21, footnote 2].

R. v. Quance (D.) (2000), 133 O.A.C. 276 (C.A.), refd to. [para. 21, footnote 2].

R. v. Mesgun (D.) (1997), 105 O.A.C. 376 (C.A.), refd to. [para. 21, footnote 2].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 23].

R. v. Symes (1989), 32 O.A.C. 102; 49 C.C.C.(3d) 81 (C.A.), refd to. [para. 33].

Counsel:

Scott C. Hutchison, for the appellant;

Jeanine E. LeRoy, for the respondent.

This appeal was heard on February 26, 2004, by MacPherson, Simmons and Cronk, JJ.A., of the Ontario Court of Appeal. Simmons, J.A., released following judgment for the court on June 25, 2004.