R. v. Edinborough (G.S.), 2010 SKQB 167

• Judge: Herauf, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: Monday May 17, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKQB 167;(2010), 357 Sask.R. 68 (QB)

R. v. Edinborough (G.S.) (2010), 357 Sask.R. 68 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MY.049

Her Majesty the Queen v. Graham Scott Edinborough (accused)

(2009 NJ No. 10; 2010 SKQB 167)

Indexed As: R. v. Edinborough (G.S.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Herauf, J.

May 17, 2010.

Summary:

The accused was charged with two counts of robbery. He raised the defence of duress (Criminal Code, s. 17). Section 17 barred the application of duress from those who committed certain offences, including robbery. The accused argued that s. 17 violated his s. 7 Charter rights and could not be saved by s. 1 of the Charter. The Crown disagreed. It also argued that there was no "air of reality" to the duress defence in this case and the application of s. 17 was moot.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2010), 348 Sask.R. 136, dismissed the accused's application. The duress defence had no air of reality. The accused was found guilty of both counts. The parties made submissions respecting sentence.

The Saskatchewan Court of Queen's Bench sentenced the accused to six years' imprisonment less 24 months' credit for 12 months spent in pre-sentencing custody for each count (concurrent). The court made a DNA order and imposed a lifetime prohibition respecting firearms, etc.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - [See Criminal Law - Topic 5855].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of two counts of robbery with violence - The Crown argued that the court should exercise its discretion and only give the accused credit for time spent in pre-sentencing on a 1:1 ratio - The Crown argued that the accused was not a model prisoner and served the majority of remand time in the new correctional facility in Regina which provided accommodations and services that were not available in the old facility - The accused sought credit on the usual 2:1 ratio - He argued that he was in protective custody for the most part which could be viewed as isolation - He conceded that he was not entitled to any credit for a six month period when he was serving a sentence for other offences committed while on parole - The Saskatchewan Court of Queen's Bench stated that, generally a 2:1 credit was given for time served on remand - This was not a rigid formula and the court had discretion based upon the circumstances - Here, the Crown had not convinced the court that it should depart from the 2:1 credit - There was no evidence that the accused needed additional jail time for treatment purposes or that he had deliberately delayed sentence so to take advantage of more time on remand - As well, the accused had spent the majority of time in protective custody - See paragraphs 43 to 45.

Criminal Law - Topic 5855

Sentence - Robbery - The 38 year old accused robbed a convenience store and a gas station using threats of violence (syringe) - He had a difficult upbringing - He had a wife and two children - He had 80 to 90 prior convictions, including five robbery convictions - He had been incarcerated 16 out of the last 20 years - He was on parole for robbery offences when the current robberies were committed - He had a drug addiction - He had been on the methadone program - He had attempted to change his lifestyle - The accused had cancer - He expressed genuine remorse and apologized to the victims, who did not have to testify - The Saskatchewan Court of Queen's Bench sentenced the accused to six years' imprisonment less 24 months' credit for 12 months spent in pre-sentencing custody for each count (concurrent) - The court stated that deterrence and protection of the public were the primary factors - Rehabilitation was secondary given the accused's record - The court made a DNA order and imposed a lifetime prohibition respecting firearms, etc.

Cases Noticed:

R. v. Simpson, 2008 BCPC 356, refd to. [para. 14].

R. v. Trott (R.W.), [2008] N.B.R.(2d) Uned. 96; 2008 NBQB 291 (T.D.), refd to. [para. 16].

R. v. Hebert (W.) (2007), 228 O.A.C. 31; 2007 ONCA 580, refd to. [para. 17].

R. v. Anderson, 2006 BCPC 561, refd to. [para. 18].

R. v. Howse (S.V.) (2006), 384 A.R. 176; 367 W.A.C. 176; 2006 ABCA 163, refd to. [para. 19].

R. v. Beasley, [2005] O.J. No. 2542, refd to. [para. 20].

R. v. Richardson, [2005] O.J. No. 2075 (C.A.), refd to. [para. 21].

R. v. Wells (G.V.), [2005] N.B.R.(2d) Uned. 158; 2005 NBCA 23, refd to. [para. 22].

R. v. Marr (J.) - see R. v. Wells (G.V.).

R. v. Ducharme, 1995 SKCA (SentDig) 96, refd to. [para. 23].

R. v. Stonechild (J.) (1995), 128 Sask.R. 210; 85 W.A.C. 210 (C.A.), refd to. [para. 24].

R. v. P.G.O., 2004 BCPC 248, refd to. [para. 33].

R. v. Sabourin (E.G.), [2009] 10 W.W.R. 614; 460 A.R. 118; 462 W.A.C. 118; 2009 NWTCA 6, refd to. [para. 35].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 184 D.L.R.(4th) 385; 2000 SCC 18, refd to. [para. 35].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 228 C.C.C.(3d) 432; 2008 BCCA 76, refd to. [para. 35].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97; 3 C.R.(5th) 175 (C.A.), refd to. [para. 35].

R. v. Neudorf (T.J.) (2004), 200 B.C.A.C. 274; 327 W.A.C. 274; 187 C.C.C.(3d) 190; 2004 BCCA 374, refd to. [para. 35].

R. v. Carlston (L.G.), [2000] Sask.R. Uned. 163; 2000 SKCA 93, refd to. [para. 36].

Counsel:

Lee Hnatiuk, for the Crown;

Colleen G. Covert, for the accused.

This sentencing was heard before Herauf, J., of the Saskatchewan Court of Queen' s Bench, Judicial Centre of Regina, who delivered the following judgment on May 17, 2010.