R. v. Cole (J.J.C.) et al., 2015 NSCA 14

• Judge: Saunders, Farrar and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 05, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 14;(2015), 355 N.S.R.(2d) 304 (CA)

R. v. Cole (J.J.C.) (2015), 355 N.S.R.(2d) 304 (CA);

    1123 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.011

Jonathon David-James Murphy (appellant) v. Her Majesty the Queen (respondent)

(CAC 422769; 2015 NSCA 14)

Indexed As: R. v. Cole (J.J.C.) et al.

Nova Scotia Court of Appeal

Saunders, Farrar and Scanlan, JJ.A.

February 5, 2015.

Summary:

Cole and Murphy were each convicted of various offences that arose when they confronted a drug dealer in his home. Cole was convicted of using or threatening to use a weapon in committing an assault, break and enter, using a firearm in the commission of an offence, carrying a concealed weapon, possessing a firearm without a license and registration, possessing a loaded firearm, two counts of possessing a firearm while prohibited by an undertaking, failing to comply with a condition of an undertaking, and breaching a condition of probation. Murphy was convicted of break and enter, possessing a weapon for a purpose dangerous to the public peace, carrying a concealed weapon, possessing a firearm without a license and registration, possessing a loaded firearm, possessing a firearm while prohibited, and possessing ammunition while prohibited.

The Nova Scotia Supreme Court, in a judgment reported (2014), 344 N.S.R.(2d) 54; 1089 A.P.R. 54, sentenced Cole to a total sentence of 11.5 years' imprisonment, and Murphy to a total sentence of 8.5 years' imprisonment. Murphy appealed his sentence, arguing that the trial judge erred in failing to give him credit for 14.5 months' of pre-trial custody and failed to address the totality principle.

The Nova Scotia Court of Appeal, Scanlan, J.A., dissenting, allowed the appeal and reduced the eight year and six month sentence by 441 days, giving 1.0 to 1.0 credit for remand time.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See second Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was sentenced to a total of 8.5 years' imprisonment for seven offences on a "go forward basis" - The accused had sought 5-7 years' imprisonment, less credit on a 1.5 to 1.0 basis for 441 days of remand - The Crown sought a total sentence of nine years' imprisonment on a "go forward basis" after 1.0 to 1.0 credit for remand time - Section 719(3.2) of the Criminal Code required a sentencing judge to "give reasons for any credit granted" and for those reasons to be stated on the record - Section 719(3.3) required that it be stated on the warrant of committal, inter alia, "the amount of time credited" - Section 719(3.4) provided that noncompliance with subsections (3.2) or (3.3) did not affect the validity of the sentence - The sentencing judge explicitly stated that there would be no enhanced credit, but did not expressly state that he gave credit on a 1.0 to 1.0 basis - The warrant of committal did not state what credit was given - The Nova Scotia Court of Appeal held that the sentencing judge erred in failing to comply with ss. 719(3.2) and (3.3) - The only reasonable conclusion was that the sentencing judge failed to take remand time into account in fixing the total sentence - The court reduced the total sentence by giving 441 days' credit on a 1.0 to 1.0 basis - Scanlan, J.A., dissenting, was satisfied that in considering the sentencing reasons together with the submissions of the Crown and the accused, the sentencing judge in crafting his "go forward sentence" gave the accused credit for remand on a 1.0 to 1.0 basis - See paragraphs 16 to 48, 61 to 73.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Section 719(3.2) of the Criminal Code required a sentencing judge to "give reasons for any credit granted" and for those reasons to be stated on the record - Section 719(3.3) required that it be stated on the warrant of committal, inter alia, "the amount of time credited" - Section 719(3.4) provided that noncompliance with subsections (3.2) or (3.3) did not affect the validity of the sentence - The Nova Scotia Court of Appeal stated that "Reading s. 719 as a whole, the structure of the section is to both limit the sentencing judge's discretion to award remand credit and to provide transparency for the thought process behind any decision to award credit. The purpose of s.s. (3.2) and (3.3) is to require a sentencing judge to disclose the amount of remand credit given and the reasons for that award. This interpretation preserves the utility of ss. (3.2) and (3.3). It allows the reviewing court to re-evaluate the remand credit, while upholding the sentencing judge's actual sentence and the deference that is owed to it." - See paragraphs 28 to 29.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Nova Scotia Court of Appeal stated that "In future, to avoid uncertainty and allow meaningful review on appeal, it may be preferable for the sentencing judge to outline the individual sentences imposed on each of the counts for which an accused has been convicted and arrive at a total actual sentence and then credit the accused with the time spent on remand leaving an effective custodial sentence" - See paragraph 54.

Cases Noticed:

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 14].

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 15].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 26].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 30].

R. v. Chicoine, 2012 QCCA 1621, refd to. [para. 31].

R. v. Doiron (J.S.) (2005), 282 N.B.R.(2d) 81; 738 A.P.R. 81; 2005 NBCA 30, refd to. [para. 44].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 2008 BCCA 76, refd to. [para. 46].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, leave to appeal denied (2010), 413 N.R. 389; 268 Man.R.(2d) 319; 520 W.A.C. 319 (S.C.C.), refd to. [para. 65].

R. v. Awad (K.M.) et al., [2015] N.S.R.(2d) TBEd. JA.056; 2015 NSCA 10, refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3), sect. 719(3.1), sect. 719(3.2), sect. 719.(3.3), sect. 719(3.4) [para. 19].

Counsel:

Roger A. Burrill, for the appellant;

Kenneth W.F. Fiske, Q.C., and Melanie Perry, for the respondent.

This appeal was heard on December 4, 2014, at Halifax, N.S., before Saunders, Farrar and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On February 5, 2015, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Farrar, J.A. (Saunders, J.A., concurring) - see paragraphs 1 to 57;

Scanlan, J.A., dissenting - see paragraphs 58 to 75.