R. v. Chaisson (J.L.), (1995) 168 N.B.R.(2d) 182 (CA)

• Judge: Hoyt, C.J.N.B., Rice and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 10, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 168 N.B.R.(2d) 182 (CA)

R. v. Chaisson (J.L.) (1995), 168 N.B.R.(2d) 182 (CA);

    168 R.N.-B.(2e) 182; 430 A.P.R. 182

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[French language version follows English language version]

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

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Joseph Leslie Chaisson (appellant) v. Her Majesty the Queen (respondent)

(252/93/CA)

Indexed As: R. v. Chaisson (J.L.)

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Rice and Turnbull, JJ.A.

November 7, 1995.

Summary:

The accused pleaded guilty to one count of forcible confinement, one count of assault, one count of uttering a death threat, one count of theft and two counts of assault with a weapon. He was sentenced to a total of three years and nine months' imprisonment. Pursuant to s. 741.2 of the Criminal Code, the sentencing judge ordered that the accused serve one half of his sentence before being eligible for parole. The accused applied for leave to appeal his sentence, including the order made pursuant to s. 741.2.

The New Brunswick Court of Appeal denied leave to appeal and gave no reasons. The accused appealed.

The Supreme Court of Canada, in a deci­sion reported 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, allowed the appeal on the basis that an appeal lies to a provincial court of appeal from an order made under s. 741.2 of the Code. The matter was referred back to the New Brunswick Court of Appeal for reconsideration of the application for leave to appeal.

The New Brunswick Court of Appeal, in the decision reported below, granted leave and allowed the appeal in part. The court held that the offences of theft and uttering a death threat could not be included in a s. 741.2 order because these offences were not listed in the schedules to the Corrections and Conditional Release Act. Otherwise, the court affirmed the sentence and the 741.2 order as it applied to the other four offences.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - An accused pleaded guilty to one count of forcible confinement, one count of assault, one count of uttering a death threat, one count of theft and two counts of assault with a weapon - He was sen­tenced to a total of three years and nine months' imprisonment - The sentencing judge also imposed an order under s. 741.2 of the Criminal Code requiring the accused to serve one half of his sentence before being eligible for parole - The New Brunswick Court of Appeal affirmed the sen­tence and order, but ruled that the order did not apply to the offences of theft and uttering a death threat because these of­fences were not listed in the schedules to the Corrections and Conditional Release Act - The court listed the factors which justified the s. 741.2 order - See para­graphs 12 to 18.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - A sentencing judge, on his own motion, ordered that the accused serve one half of his sentence before being eligible for parole (Criminal Code, s. 741.2) - The accused appealed the s. 741.2 order - The New Brunswick Court of Appeal held that the failure of the Crown to request the imposition of a s. 741.2 order was not itself sufficient to permit a successful appeal - The court stated that before im­posing such an order, it is desirable that the accused be advised that such an order is being contemplated so that the accused may respond - See paragraph 13.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - Section 741.2 of the Criminal Code provided that in certain situations a judge could order that the accused serve one half his sentence before being eligible for parole - The New Brunswick Court of Appeal stated that the failure to give rea­sons for imposing a s. 741.2 order should not automatically result in the order being set aside - The failure to give rea­sons may be a factor for an appellate court to con­sider in cases where the reasons for the length of sentence are inadequate - It is for the appellate court to consider the fitness of the sentence, including the s. 741.2 order - See paragraph 15.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - A sentencing judge ordered that the accused serve one half of his sentence before being eligible for parole (Criminal Code, s. 741.2) - The accused appealed the s. 741.2 order, argu­ing that the use of s. 741.2 should be restricted to the most serious situation (i.e., the worst offender scenario) - The New Brunswick Court of Appeal rejected this submission - The court, per Hoyt, C.J.N.B., stated that "while an order for parole ineli­gibility will likely be made more often in serious cases, I would not restrict its ap­plication to cases that only fall within that category. I would not deny its application when, for example, as here, modest sen­tences are imposed for a number of offen­ces. A s. 741.2 order must not become routine, but be reserved for exceptional circumstances" - See para­graph 16.

Criminal Law - Topic 5670.8

Punishments (sentence) - Imprisonment and parole - Parole - Power of court to delay parole - [See all Criminal Law - Topic 5670 ].

Criminal Law - Topic 5936

Sentence - Multiple offences - A 45 year old accused pleaded guilty to one count of forcible confinement, one count of assault, one count of uttering a death threat, one count of theft and two counts of assault with a weapon - He was sentenced to a total of three years and nine months' im­prisonment and ordered to serve one half his sentence before being eligible for parole - The New Brunswick Court of Appeal affirmed the sentence - The court considered, inter alia, that the offences involved violence, were serious in nature, were degrading and unprovoked, the ac­cused's lengthy criminal record, his ex­pression of remorse, his guilty pleas and that the events occurred on the fifth day of an alcoholic binge - See paragraphs 1 to 11.

Cases Noticed:

R. v. Dankyi (E.) (1993), 59 O.A.C. 118; 86 C.C.C.(3d) 368 (C.A.), refd to. [para. 15].

R. v. Goulet (J.) (1995), 79 O.A.C. 233; 97 C.C.C.(3d) 61 (C.A.), refd to. [para. 15].

R. v. Doerksen (K.D.) (1995), 172 A.R. 226 (Q.B.), refd to. [para. 16].

R. v. Jacklin (T.J.) (1995), 170 A.R. 284 (Prov. Ct.), refd to. [para. 16].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 741.2 [para. 1].

Counsel:

Brian B. Doucet, for the appellant;

Ronald LeBlanc, for the Crown.

This appeal was heard on October 10, 1995, before Hoyt, C.J.N.B., Rice and Turn­bull, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered for the court by Hoyt, C.J.N.B., on November 7, 1995.