R. v. Burback (B.T.), (2012) 522 A.R. 352

• Judge: Côté, Conrad and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 10, 2012
• Citations: (2012), 522 A.R. 352;2012 ABCA 30

R. v. Burback (B.T.) (2012), 522 A.R. 352; 544 W.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.080

Her Majesty The Queen (respondent) v. Barton Traustie Burback (appellant)

(1103-0064-A; 2012 ABCA 30)

Indexed As: R. v. Burback (B.T.)

Alberta Court of Appeal

Côté, Conrad and Bielby, JJ.A.

February 10, 2012.

Summary:

The accused pleaded guilty to impaired driving causing bodily harm and was sentenced to 18 months' imprisonment. The accused appealed, arguing that (1) the trial judge erred in imposing a sentence exceeding that sought by the Crown without so advising the parties and giving them an opportunity to make submissions and (2) in failing to treat the accused's guilty plea as a mitigating factor.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - The 50 year old accused pleaded guilty to impaired driving causing bodily harm - The trial judge stated that the guilty plea, made only on the trial date after the witnesses had already been subpoenaed, was not a mitigating factor - The Alberta Court of Appeal held that while a sentencing judge was entitled to give little weight to a guilty plea, a guilty plea still indicated remorse and it was an error to find that it was not a mitigating factor - However, the court dismissed the accused's appeal from an 18 month sentence - Even if some modest weight was given to the guilty plea, the sentence imposed was within the acceptable range, and the sentence of 18 months' imprisonment was not manifestly unfit - See paragraphs 21 to 23.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - The 50 year old accused pleaded guilty to impaired driving causing bodily harm - His passenger was injured (broken collarbone and ribs) when the accused rolled his truck in a ditch - His breathalyzer readings were .17 and .18 - The accused sought a 6-9 month sentence and a five year driving prohibition - The Crown argued for a 12 month sentence, a 10 year driving prohibition and a five year moratorium on the accused's ability to apply for the Interlock program - The accused's guilty plea did not result from any agreement with or representations by the Crown - Particularly, there was no evidence that the accused pleaded guilty in exchange for the Crown not seeking a sentence above a certain range (i.e., as opposed to a joint sentencing recommendation) - The trial judge imposed a sentence of 18 months' imprisonment, a 10 year driving prohibition and no eligibility to apply for the Interlock program - The judge did not give advance notice to counsel that he intended to impose a sentence outside of the range proposed - Counsel had no opportunity to make submissions - The Alberta Court of Appeal held that where a sentencing judge intended to impose a sentence above the range proposed by the Crown and accused, the judge should give advance notice to counsel and give them an opportunity to make submissions (as a judge was obligated to do in the case of a joint sentencing submission) - However, notwithstanding the judge's failure to give notice and an opportunity to make submissions, the accused's sentence appeal was dismissed where the sentence imposed was not demonstrably unfit - See paragraphs 7 to 20.

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See Criminal Law - Topic 5849.7 ].

Cases Noticed:

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. 6].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 8].

R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 9].

R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. 10].

R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 2011 ABCA 35, refd to. [para. 11].

R. v. Keough (J.A.) (2012), 519 A.R. 236; 539 W.A.C. 236; 2012 ABCA 14, refd to. [para. 15].

Counsel:

T.L. Couillard, for the respondent;

K.J. Teskey, for the appellant.

This appeal was heard on September 20, 2011, before Côté, Conrad and Bielby, JJ.A., of the Alberta Court of Appeal.

On February 10, 2012, the following memorandum of judgment was filed by Conrad, J.A.