R. v. Dewald (T.O.), (2001) 144 O.A.C. 352 (CA)

• Judge: McMurtry, C.J.O., Carthy and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 14, 2000
• Jurisdiction: Ontario
• Citations: (2001), 144 O.A.C. 352 (CA)

R. v. Dewald (T.O.) (2001), 144 O.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. MY.032

Her Majesty The Queen (respondent) v. Thomas Oscar Dewald (appellant)

(C33987)

Indexed As: R. v. Dewald (T.O.)

Ontario Court of Appeal

McMurtry, C.J.O., Carthy and Laskin, JJ.A.

May 9, 2001.

Summary:

The accused pleaded guilty to two counts of second degree murder and was sentenced to life imprisonment without parole eligibility for 23 years. The accused appealed, seeking to reduce the parole eligibility to 12 years as recommended at the sentencing hearing in a joint submission.

The Ontario Court of Appeal, Carthy, J.A., dissenting, allowed the appeal and reduced the accused's period of parole ineligibility to 17 years.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused took his two children, aged 10 and 12, to a cottage for a swim and held their heads underwater until they drowned - The accused pleaded guilty to two counts of second degree murder - The trial judge rejected a joint submission presented at the sentencing hearing which recommended parole ineligibility of 12 years where acceptance of the submission would bring the administration of justice into disrepute and would clearly not be in the public interest - The trial judge imposed 23 years of parole ineligibility - The accused appealed - The Ontario Court of Appeal held that the trial judge did not err in rejecting the joint submission, but erred in classifying the accused as one of the worst offenders and in giving inadequate weight to the accused's expressions of remorse, his depression and his prospects for rehabilitation - The court allowed the appeal and reduced the period of ineligibility from 23 to 17 years - See paragraphs 28 to 49.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Ontario Court of Appeal stated that "a joint submission on sentence is important to the administration of the criminal justice system. This has been recognized for many years. Trial judges should therefore seriously consider a joint submission but they are not required to accept it. Unquestioning acceptance would remove their sentencing discretion. Trial judges may reject a joint submission if accepting it would be contrary to the public interest or would otherwise bring the administration of justice into disrepute. These principles are also well established." - See paragraph 29.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Phillips (L.R.) (1999), 123 O.A.C. 304; 138 C.C.C.(3d) 297 (C.A.), refd to. [para. 21].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477; 30 C.R.(3d) 289; 140 D.L.R.(3d) 612, refd to. [para. 21].

R. v. Boulet (1990), 85 Sask.R. 93; 58 C.C.C.(3d) 178 (C.A.), refd to. [para. 21].

R. v. Poorman (1991), 93 Sask.R. 1; 4 W.A.C. 1; 66 C.C.C.(3d) 82 (C.A.), refd to. [para. 21].

R. v. Olsen (L.) and Podniewicz (M.) (1999), 116 O.A.C. 357; 131 C.C.C.(3d) 355 (C.A.), refd to. [para. 23].

R. v. Winn (1995), 25 O.R.(3d) 750 (C.J. Prov. Div.), refd to. [para. 26].

R. v. W.B.C. (2000), 130 O.A.C. 1 (C.A.), refd to. [para. 32].

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; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 38].

Authors and Works Noticed:

Martin Committee Report - see Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report).

Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), pp. 373, 374, 375 [para. 40].

Counsel:

David E. Harris, for the appellant;

W. Graeme Cameron, for the respondent.

This appeal was heard on December 14, 2000, before McMurtry, C.J.O., Carthy and Laskin, JJ.A., of the Ontario Court of Appeal. The judgment was released on May 9, 2001 and the following opinions were filed:

Carthy, J.A., dissenting - see paragraphs 1 to 27;

Laskin, J.A. (McMurtry, C.J.O., concurring) - see paragraphs 28 to 49.