R. v. Dufour (C.), 2015 ONCA 426

• Judge: Feldman, Hourigan and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 28, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 426;(2015), 336 O.A.C. 52 (CA)

R. v. Dufour (C.) (2015), 336 O.A.C. 52 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.023

Her Majesty the Queen (applicant/appellant) v. Chantelle Dufour (respondent)

(C59481; 2015 ONCA 426)

Indexed As: R. v. Dufour (C.)

Ontario Court of Appeal

Feldman, Hourigan and Pardu, JJ.A.

June 12, 2015.

Summary:

The accused was convicted of a firearm offence and a break and enter. On the firearm conviction the accused was sentenced to one year, less 344 days pre-sentence custody, and a further 12 month consecutive conditional sentence on the break and enter conviction. The Crown appealed the sentence.

The Ontario Court of Appeal, Feldman, J.A., dissenting, allowed the appeal and imposed a three year custodial sentence for the gun offence and a one year concurrent sentence for the break and enter.

Criminal Law - Topic 5720.9

Punishments (sentence) - Conditional sentence - Appeals - [See second Criminal Law - Topic 6214 ].

Criminal Law - Topic 5851

Sentence - Break and enter - The accused broke into a home, stole a loaded handgun, and sold the gun to a known drug dealer in exchange for cocaine and cash - She pleaded guilty to a firearm offence and break and enter - Drug addiction - No related record - Difficult childhood - Four children - Primary source of income was stripping and prostitution, and selling drugs - Physical and mental health issues - The Ontario Court of Appeal imposed a three year custodial sentence for the gun offence and a one year concurrent sentence for the break and enter, less credit for time served - See paragraphs 1 to 9 and 31.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - The Ontario Court of Appeal reviewed the principles applicable to staying the balance of a sentence where a sentence was increased on appeal, including the issue of reincarceration after a period of release - See paragraphs 10 to 29.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - The accused was convicted of a firearm offence and a break and enter - Conditional sentences were imposed and partially served - The Crown appealed, seeking an increased sentence - The accused acknowledged that the conditional sentences were illegal - The Ontario Court of Appeal allowed the Crown appeal and increased the sentence to three years, less time served - The court ordered the accused reincarcerated - The court noted that there was no substantial evidence of rehabilitative efforts made by the accused after being released from custody - She had also breached the conditional sentence and spent 105 days in custody on that breach - The remaining sentence to be served was significant - In light of the seriousness of the offences, denunciation and deterrence required that the accused serve an appropriate sentence - See paragraphs 1 to 30.

Cases Noticed:

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146, refd to. [para. 3].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 303 C.C.C.(3d) 474; 2013 ONCA 677, affd. (2015), 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 8].

R. v. Smickle (L.) (2014), 317 O.A.C. 196; 306 C.C.C.(3d) 351; 2014 ONCA 49, refd to. [para. 9].

R. v. Taylor (E.) (2013), 337 Nfld. & P.E.I.R. 24; 1047 A.P.R. 24; 2013 NLCA 42, refd to. [para. 12].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 16].

R. v. G.C.F. (2004), 189 O.A.C. 29; 71 O.R.(3d) 771; 188 C.C.C.(3d) 68 (C.A.), refd to. [para. 17].

R. v. Fox (K.S.), [2002] O.A.C. Uned. 163 (C.A.), refd to. [para. 19].

R. v. Okash (A.), [2015] O.A.C. Uned. 33 (C.A.), refd to. [para. 22].

R. v. McBean (D.B.), [2007] O.A.C. Uned. 160 (C.A.), refd to. [para. 23].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, refd to. [para. 24].

R. v. Alfred (A.) (1998), 105 O.A.C. 373; 122 C.C.C.(3d) 213 (C.A.), refd to. [para. 28].

R. v. Schertzer (J.) et al. (2015), 333 O.A.C. 308; 2015 ONCA 259, refd to. [para. 34].

R. v. Huh (B.) (2015), 335 O.A.C. 394; 2015 ONCA 356, refd to. [para. 36].

R. v. Dunn (B.J.) (2011), 369 N.B.R.(2d) 271; 952 A.P.R. 271; 2011 NBCA 19, refd to. [para. 41].

Authors and Works Noticed:

Renaud, Gilles, The Sentencing Code of Canada: Principles and Objectives (2009), paras. 5.96, 5.97, 5.114 [para. 18].

Counsel:

Katie Doherty, for the appellant;

Brandon J. Chase, for the respondent.

This appeal was heard on April 28, 2015, before Feldman, Hourigan and Pardu, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered on June 12, 2015, including the following opinions:

Pardu, J.A. (Hourigan, J.A., concurring) - see paragraphs 1 to 32;

Feldman, J.A., dissenting - see paragraphs 33 to 42.