R. v. Englehart (A.), (1998) 199 N.B.R.(2d) 375 (CA)

• Judge: Rice, Ryan and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 17, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 199 N.B.R.(2d) 375 (CA)

R. v. Englehart (A.) (1998), 199 N.B.R.(2d) 375 (CA);

    199 R.N.-B.(2e) 375; 510 A.P.R. 375

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[French language version follows English language version]

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

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Temp. Cite: [1998] N.B.R.(2d) TBEd. MY.010

Her Majesty The Queen (appellant) v. Armel Englehart (respondent)

(299/96/CA)

Indexed As: R. v. Englehart (A.)

New Brunswick Court of Appeal

Rice, Ryan and Drapeau, JJ.A.

May 4, 1998.

Summary:

The accused was convicted of sexually assaulting two children over a period of several years. On the first charge, the ac­cused was sentenced to 18 months' impri­sonment followed by two years' probation with a concurrent sentence for the second charge of 10 months followed by two years' probation. The Crown applied for leave to appeal the sentences.

The New Brunswick Court of Appeal granted leave to appeal but remitted the matter to the trial judge for him to determine which of the incidents were proven beyond a reasonable doubt. The appeal court would then be in a position to determine the fitness of the sentence imposed.

Criminal Law - Topic 4987

Appeals - Indictable offences - Powers of court of appeal - Powers re sentencing - [See both Criminal Law - Topic 6201 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - The ac­cused was convicted of sexually assault­ing two children over a period of several years and sentenced accordingly - The Crown sought leave to appeal the sen­tences - The New Brunswick Court of Appeal granted leave - The court held that the sentencing judge should have identified which find­ings of guilt by the jury were, in his judi­cial opinion, substantiated by proof beyond a reasonable doubt - The court remitted the matter to the trial judge for him to deter­mine which of the incidents were proven beyond a reasonable doubt - The appeal court would then be in a posi­tion to deter­mine the fitness of the sen­tence imposed.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - The New Brunswick Court of Appeal reviewed the powers of the court of appeal on an appeal against sentence - See paragraphs 9 to 13.

Cases Noticed:

R. v. Gauthier (T.J.) (1996), 75 B.C.A.C. 85; 128 W.A.C. 85; 108 C.C.C.(3d) 231 (C.A.), refd to. [para. 6].

R. v. Brown (K.F.), [1991] 2 S.C.R. 518; 125 N.R. 363; 93 Sask.R. 81; 4 W.A.C. 81, refd to. [para. 7].

R. v. Pelletier (1989), 52 C.C.C.(3d) 340 (Que. C.A.), refd to. [para. 11].

R. v. Ghislieri (1980), 25 A.R. 465; 56 C.C.C.(2d) 4 (C.A.), refd to. [para. 11].

R. v. Ashcroft, Tosh and King, [1966] 4 C.C.C. 27 (Ont. C.A.), refd to. [para. 11].

R. v. Elliott, [1978] 2 S.C.R. 393; 18 N.R. 485, refd to. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 687(1), sect. 687(2) [para. 9]; sect. 683(1), sect. 683(3) [para. 10].

Rules of Court (N.B.), rule 62.21(10) [para. 12].

Counsel:

Luc J. Labonté, for the appellant;

Kirk W. Meldrum, for the respondent.

This application was heard on March 17, 1998, before Rice, Ryan and Drapeau, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered for the court by Ryan, J.A., on May 4, 1998.