R. v. Fontaine (T.J.), 2014 BCCA 1

• Judge: Donald, Newbury and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 03, 2013
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 1;(2014), 348 B.C.A.C. 305 (CA)

R. v. Fontaine (T.J.) (2014), 348 B.C.A.C. 305 (CA);

    595 W.A.C. 305

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JA.041

Regina (respondent) v. Trevor James Fontaine (appellant)

(CA036443; 2014 BCCA 1)

Indexed As: R. v. Fontaine (T.J.)

British Columbia Court of Appeal

Donald, Newbury and Kirkpatrick, JJ.A.

January 8, 2014.

Summary:

After a trial by judge and jury, the aboriginal accused was convicted of aggravated assault, assault with a weapon, four counts of unlawful confinement and four counts of uttering threats. At the sentencing hearing, the accused was designated a dangerous offender. The accused appealed the designation, asserting that the sentencing judge erred by not adequately considering the principles of sentencing applicable to aboriginal offences. Although a Gladue report was not prepared, the judge was aware of the accused's aboriginal background and his difficult childhood.

The British Columbia Court of Appeal held that the sentencing judge erred in not explicitly addressing the accused's unique aboriginal circumstances in determining the just and appropriate sentence. However, notwithstanding the error, the fact was that the accused's risk of future violence could not be controlled in the community. Because he posed such a high risk and the aboriginal and other programs he had taken had not ameliorated that risk, the appropriate sentence was to designate him a dangerous offender. Accordingly, the court dismissed the appeal.

Editor's note: for related decisions involving the same accused see [2012] B.C.T.C. Uned. 1603; [2012] B.C.A.C. Uned. 103; [2013] B.C.A.C. Uned. 105; and 332 B.C.A.C. 94; 569 W.A.C. 94.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - See paragraphs 1 to 36.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender - Defined - See paragraphs 1 to 36.

Criminal Law - Topic 6551

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - General - See paragraphs 1 to 36.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 2].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 3].

R. v. Good (H.J.) (2012), 318 B.C.A.C. 227; 541 W.A.C. 227; 2012 YKCA 2, refd to. [para. 31].

Counsel:

C. Darnay, for the appellant;

F.G. Tischler, for the respondent.

This appeal was heard at Vancouver, British Columbia, on December 3, 2013, by Donald, Newbury and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Kirkpatrick, J.A., delivered the following reasons for judgment for the court on January 8, 2014.