R. v. F.Y., 2011 NBCA 86

• Judge: Bell, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 26, 2011
• Jurisdiction: New Brunswick
• Citations: 2011 NBCA 86;(2011), 378 N.B.R.(2d) 37 (CA)

R. v. F.Y. (2011), 378 N.B.R.(2d) 37 (CA);

    378 R.N.-B.(2e) 37; 973 A.P.R. 37

MLB headnote and full text

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: [2011] N.B.R.(2d) TBEd. OC.009

Renvoi temp.: [2011] N.B.R.(2d) TBEd. OC.009

F.Y. (appellant) v. Her Majesty the Queen (respondent)

(9-11-CA; 2011 NBCA 86)

Indexed As: R. v. F.Y.

Répertorié: R. v. F.Y.

New Brunswick Court of Appeal

Bell, Quigg and Green, JJ.A.

May 26, 2011.

Summary:

Résumé:

The accused pleaded guilty to break and enter into a dwelling house and committing mischief therein (Criminal Code, s. 348(1)(b)). She was sentenced to one year of imprisonment followed by a term of probation. The accused appealed from sentence only.

The New Brunswick Court of Appeal granted leave to appeal, allowed the appeal and varied the sentence by imposing a term of incarceration of six months less credit for time served multiplied by 1.5. The court stated that it would not alter the probation order other than the obvious changes to its start date and end date.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - [See Criminal Law - Topic 4867 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Criminal Law - Topic 4867 ].

Criminal Law - Topic 4867

Appeals - Indictable offences - Grounds of appeal - Bias - The accused pleaded guilty to break and enter into a dwelling house and committing mischief therein (Criminal Code, s. 348(1)(b)) - She was sentenced to one year of imprisonment followed by a term of probation - The accused appealed from sentence only - The New Brunswick Court of Appeal held that it could substitute its view of the appropriate sentence - The Crown provided notice to the judge that the accused believed the facts of the case merited a conditional sentence and wished to make representations in that regard - The judge made up his mind that such a sentence would not be imposed before having heard submissions from the accused or her counsel - His opinions regarding conditional sentences as expressed by him to the Crown prosecutor, his rejection of a conditional sentence before having heard from the accused and his manner of questioning the accused all demonstrated a reasonable apprehension of bias, if not actual bias, regarding the very issue raised by the accused (i.e., whether a conditional sentence would be appropriate in the circumstances).

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused pled guilty to break and enter into a dwelling house (which housed an escort service) and committing mischief therein (she disabled security cameras and broke an inside door) - She was sentenced to one year of imprisonment followed by probation - The New Brunswick Court of Appeal reduced the term of incarceration to six months less credit for time served multiplied by 1.5 - There were mitigating factors - The break and enter was on the "low end" of the scale - The accused initially knocked on the door in order to announce her arrival and request entry - She did not enter the home with any intent to steal, cause damage or assault anyone - She was in the course of protecting her minor daughter from danger - Aggravating circumstances were the accused's criminal record - For a time she suffered from an addiction which led her into a life of serious crime - Her criminal record included fraud, forging documents, robbery with violence, kidnapping and breach of court orders, including a conditional sentence order in 2006 - Other than the present matter, she had not been in conflict with the law since 2007 - The second aggravating factor was that she did not call the police to advise that she believed her minor daughter was in danger - But for the accused's prior criminal record, the objectives of specific and general deterrence as well as denunciation would have been met by a conditional sentence.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5890

Sentence - Mischief (includes vandalism) - [See Criminal Law - Topic 5720.4 ].

Droit criminel - Cote 4867

Appels - Actes criminels - Motifs d'appel - Partialité - [Voir Criminal Law - Topic 4867 ].

Droit criminel - Cote 5720.3

Peines (sentence) - Emprisonnement avec sursis - Facteurs à considérer - [Voir Criminal Law - Topic 5720.3 ].

Droit criminel - Cote 5720.4

Peines (sentence) - Emprisonnement avec sursis - Circonstances permettant ou justifiant l'emprisonnement avec sursis - [Voir Criminal Law - Topic 5720.4 ].

Droit criminel - Cote 5851

Peine - Introduction par effraction - [Voir Criminal Law - Topic 5851 ].

Droit criminel - Cote 5890

Peine - Méfait (y compris vandalisme) - [Voir Criminal Law - Topic 5890 ].

Tribunaux - Cote 686

Juges - Récusation - Partialité - Par le juge du procès - [Voir Courts - Topic 686 ].

Tribunaux - Cote 691

Juges - Récusation - Partialité - Crainte raisonnable de partialité - [Voir Courts - Topic 691 ].

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 2].

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, refd to. [para. 2].

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), refd to. [para. 2].

R. v. LeBlanc (G.A.) (2003), 264 N.B.R.(2d) 341; 691 A.P.R. 341; 2003 NBCA 75, refd to. [para. 2].

R. v. R.P. (2001), 245 N.B.R.(2d) 179; 636 A.P.R. 179; 2001 NBCA 115, refd to. [para. 2].

R. v. Williams (E.) (2009), 351 N.B.R.(2d) 263; 904 A.P.R. 263; 2009 NBCA 79, refd to. [para. 2].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, refd to. [para. 2].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 2].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 2].

R. v. Steeves (T.) (2010), 360 N.B.R.(2d) 88; 930 A.P.R. 88; 2010 NBCA 57, refd to. [para. 2].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 7].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 9].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 10].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 10].

Counsel:

Avocats:

F.Y. appeared in person;

Cameron H. Gunn, for the respondent.

This appeal was heard and decided on May 26, 2011, by Bell, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. Bell, J.A., delivered the following written reasons for decision for the court in both official languages on September 29, 2011.