R. v. Dow (T.H.), (2014) 422 N.B.R.(2d) 380 (CA)

JudgeRichard, Bell and Green, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateJune 19, 2014
JurisdictionNew Brunswick
Citations(2014), 422 N.B.R.(2d) 380 (CA);2014 NBCA 50

R. v. Dow (T.H.) (2014), 422 N.B.R.(2d) 380 (CA);

    422 R.N.-B.(2e) 380; 1096 A.P.R. 380

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JL.052

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.052

Trevor Howie Dow (appellant) v. Her Majesty the Queen (respondent)

(28-14-CA; 2014 NBCA 50)

Indexed As: R. v. Dow (T.H.)

Répertorié: R. v. Dow (T.H.)

New Brunswick Court of Appeal

Richard, Bell and Green, JJ.A.

July 24, 2014.

Summary:

Résumé:

The accused pled guilty to three counts of illegally offering to sell firearms or ammunition contrary to s. 99(1)(b) of the Criminal Code. On January 31, 2014, he was sentenced to three years' imprisonment (firearms sentence). The sentence was ordered to be served concurrently with a sentence of three years' imprisonment the same judge had imposed on September 27, 2012, after the accused had pled guilty to four counts of trafficking in cocaine under s. 5(1) of the Controlled Drugs and Substances Act and four corresponding counts of possession of proceeds of crimes under s. 354 of the Code (drugs sentence). The accused appealed the firearms sentence.

The New Brunswick Court of Appeal allowed the appeal and varied the firearms sentence to three years' imprisonment but the execution of that sentence was stayed. All corollary orders stayed the same.

Editor's note: for the decision affirming the drugs sentence, see (2014), 418 N.B.R.(2d) 222; 1087 A.P.R. 222 (C.A.).

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - The accused pled guilty to three counts of illegally offering to sell firearms or ammunition contrary to s. 99(1)(b) of the Criminal Code - On January 31, 2014, he was sentenced to three years' imprisonment (firearms sentence) - The sentence was the mandatory minimum provided by the Code - The sentence was ordered to be served concurrently with a sentence of three years' imprisonment the same judge had imposed on September 27, 2012, after the accused had pled guilty to four counts of trafficking in cocaine under s. 5(1) of the Controlled Drugs and Substances Act and four corresponding counts of possession of proceeds of crimes under s. 354 of the Code (drugs sentence) - The Crown conceded that if the accused had pled guilty to all offences at the same time, the prosecution would have agreed the firearms sentences should be served concurrently with the drugs sentences - Thus, prosecution and defence counsel jointly recommended that the sentence of three years imposed on January 31, 2014, would effectively be back-dated to commence on September 27, 2012 - The judge agreed - Subsequently, the correctional authorities informed the accused his anticipated release date had changed as a result of his latest convictions - The accused appealed the firearms sentence - At issue was whether the court should seek to give effect to the intention of the parties, as accepted by the judge, that the accused not effectively serve more prison time than the three years to which he was sentenced on September 27, 2012 - The New Brunswick Court of Appeal allowed the appeal and varied the firearms sentence to three years' imprisonment but the execution of that sentence was stayed - It would offend the principles of fundamental justice to allow the state to conclude a plea agreement where a critical condition of the agreement was legally impermissible - Since the plea agreement was obtained in such circumstances, there was a violation of s. 7 of the Charter.

Droit criminel - Cote 5802

Détermination de la peine - Généralités - Peines concommitantes - [Voir Criminal Law - Topic 5802 ].

Droit criminel - Cote 5807

Détermination de la peine - Généralités - Peines infligées concernant des condamnations multiples - [Voir Criminal Law - Topic 5807 ].

Droit criminel - Cote 5813

Détermination de la peine - Procédure et droits du prévenu - Marchandage de la peine ou recommandation conjointe - Effet - [Voir Criminal Law - Topic 5813 ].

Droit criminel - Cote 6203

Détermination de la peine - Appels - Modification de la peine - Motifs de modification de la peine infligée par le juge du procès - [Voir Criminal Law - Topic 6203 ].

Cases Noticed:

R. v. Sinclair (T.) et al. (2012), 280 Man.R.(2d) 31; 548 W.A.C. 31; 2012 MBCA 24, refd to. [para. 8].

Counsel:

Avocats:

Trevor Howie Dow, appeared in person;

David Schermbrucker and M.-C. Nicole Angers, for the respondent.

This appeal was heard on June 19, 2014, by Richard, Bell and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered orally in both official languages on July 24, 2014.

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2 practice notes
  • Trevor Howie Dow v. Carl Champagne and the Attorney General of Canada,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • May 27, 2022
    ...of property obtained by crime, and offering to sell firearms to an undercover police officer. See R. v. Dow 2014 NBCA 15; and R. v. Dow 2014 NBCA 50.  Writing for the Court of Appeal in R. v. Dow 2014 NBCA 15, Justice Richard (as he then was ) summarized the facts before the Provincial......
  • Trevor Howie Dow c. Carl Champagne et le procureur général du Canada,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • May 27, 2022
    ...obtenus, et de tentative de vente d’armes à feu à un policier banalisé. Voir Dow c. R., 2014 NBCA 15, et Dow c. R., 2014 NBCA 50. Rédigeant les motifs de la Cour d’appel dans l’arrêt Dow c. R., 2014 NBCA 15, le juge Richard (tel était alors......
2 cases
  • Trevor Howie Dow v. Carl Champagne and the Attorney General of Canada,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • May 27, 2022
    ...of property obtained by crime, and offering to sell firearms to an undercover police officer. See R. v. Dow 2014 NBCA 15; and R. v. Dow 2014 NBCA 50.  Writing for the Court of Appeal in R. v. Dow 2014 NBCA 15, Justice Richard (as he then was ) summarized the facts before the Provincial......
  • Trevor Howie Dow c. Carl Champagne et le procureur général du Canada,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • May 27, 2022
    ...obtenus, et de tentative de vente d’armes à feu à un policier banalisé. Voir Dow c. R., 2014 NBCA 15, et Dow c. R., 2014 NBCA 50. Rédigeant les motifs de la Cour d’appel dans l’arrêt Dow c. R., 2014 NBCA 15, le juge Richard (tel était alors......

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