R. v. Cormier, (1986) 70 N.B.R.(2d) 107 (CA)

• Judge: Stratton, C.J.N.B., Ryan and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 14, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 70 N.B.R.(2d) 107 (CA)

R. v. Cormier (1986), 70 N.B.R.(2d) 107 (CA);

    70 R.N.-B.(2e) 107; 179 A.P.R. 107

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R. v. Cormier

(207/85/CA)

Indexed As: R. v. Cormier

Répertorié: R. v. Cormier

New Brunswick Court of Appeal

Stratton, C.J.N.B., Ryan and Rice, JJ.A.

April 30, 1986.

Summary:

Résumé:

The accused pleaded guilty to 14 counts of sexual assault, contrary to s. 246.1(1)(a) of the Criminal Code of Canada and two counts of indecent assault on a female, contrary to the now repealed s. 149(1) of the Code.

The New Brunswick Provincial Court, in a decision unreported in this series of reports, sentenced the accused to three months' imprisonment for 13 counts of sexual assault and the two counts of indecent assault, the sentences to be served concurrently. The accused also received a term of six months' imprisonment for the remaining count of sexual assault, to be served consecutively to the above three month sentence, for a total term of imprisonment of nine months. The Crown applied for leave to appeal against sentence.

The New Brunswick Court of Appeal granted leave, but dismissed the appeal. The Court of Appeal would have increased the term of imprisonment, but refused to require the accused to serve the additional sentence, because the accused had already served his time and been released from custody.

Rice, J.A., concurring with the result in separate reasons, would have granted leave to appeal, but would have dismissed the appeal on the merits, on the ground that the sentence was adequate.

Criminal Law - Topic 5848.2

Sentencing - Considerations - Time already served - Between the hearing of a sentence appeal by the Crown and its final disposition, the accused had served his term of imprisonment and was released from custody - Although the New Brunswick Court of Appeal would have increased the sentence, it refused to re-arrest the accused and require him to serve the additional sentence - Accordingly, the Court of Appeal dismissed the Crown's appeal - See paragraphs 8 to 10.

Criminal Law - Topic 5932

Sentence - Sexual assault - 42 year old married man with two children pleaded guilty to 13 counts of sexual assault (plus two counts of indecent assault on a female) - Offences involved seven girls from 11 to 15 years, all friends of his 13 year old daughter - Offences involved touching the girls' clothing over the areas of the breast and vagina; two incidents of actual touching of two girls' vaginas; one instance of fondling of one girl's breasts - Incidents were of short duration - No violence - No significant trauma or psychological upset to girls - Accused self-employed - Grade seven education - First offender - The New Brunswick Court of Appeal would have increased a concurrent sentence of three months' imprisonment to one of six months, but refused to require the accused to serve the additional time, because he had already been released from custody.

Criminal Law - Topic 5932

Sentence - Sexual assault - 42 year old married man with two children pleaded guilty to one count of sexual assault - Incident involved one young girlfriend of his 13 year old daughter - Incident involved one act of fellatio - No violence - No significant trauma or psychological upset to victim - Accused self-employed - Grade seven education - First offender - The New Brunswick Court of Appeal would have increased the sentence from six months' imprisonment to 12 months, but refused to require the accused to serve the additional term, because he had already been released from custody.

Cases Noticed:

R. v. Mitchell (1981), 29 Nfld. & P.E.I.R. 125; 82 A.P.R. 125 (P.E.I.C.A.), refd to. [para. 9].

R. v. Chase (1984), 55 N.B.R.(2d) 97; 144 A.P.R. 97, refd to. [para. 14].

R. v. Mochon (1978), 23 N.B.R.(2d) 90; 44 A.P.R. 90, refd to. [para. 15].

R. v. Levesque (1983), 42 N.B.R.(2d) 506; 110 A.P.R. 506, refd to. [para. 17].

R. v. Deihl (1972), 5 N.S.R.(2d) 21 (C.A.), refd to. [para. 24].

R. v. McKeachnie (1976), 26 C.C.C.(2d) 317 (Ont. C.A.), refd to. [para. 24].

R. v. Wells (1978), 7 A.R. 311 (C.A.), refd to. [para. 24].

R. v. Pammer (1979), 1 Man.R.(2d) 18 (C.A.), refd to. [para. 24].

R. v. Sandercock (1986), 62 A.R. 382; 22 C.C.C.(3d) 79, refd to. [para. 26].

R. v. Sprague et al., [1975] W.W.R. 2; 19 C.C.C.(2d) 513 (Alta. C.A.), refd to. [para. 27].

Counsel:

Yvette Finn, for the appellant;

James C. Letcher, for the respondent.

This appeal was heard before Stratton, C.J.N.B., Ryan and Rice, JJ.A., of the New Brunswick Court of Appeal on January 14, 1986. The decision of the Court of Appeal was delivered on April 30, 1986, when the following opinions were filed:

Ryan, J.A. - see paragraphs 1 to 10;

Rice, J.A. - see paragraphs 11 to 28.

Stratton, C.J.N.B., concurred with Ryan, J.A.