R. v. Freeman, (1991) 88 Nfld. & P.E.I.R. 353 (NFTD)

• Judge: Kevin Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 02, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1991), 88 Nfld. & P.E.I.R. 353 (NFTD)

R. v. Freeman (1991), 88 Nfld. & P.E.I.R. 353 (NFTD);

    274 A.P.R. 353

MLB headnote and full text

Robert Baxter Freeman (appellant) v. Her Majesty The Queen (respondent)

(1989 No. G-192)

Indexed As: R. v. Freeman

Newfoundland Supreme Court

Trial Division

Kevin Barry, J.

March 1, 1991.

Summary:

The accused pleaded guilty to driving while having an excessive blood-alcohol level. A mandatory jail sentence was imposed because of a prior conviction. The accused appealed on various grounds.

The Newfoundland Supreme Court, Trial Division, allowed the appeal in part.

Criminal Law - Topic 5664

Punishments (sentence) - Imprisonment and parole - Intermittent imprisonment - The accused pleaded guilty to driving with an excessive blood-alcohol level - Low blood-alcohol reading - Sentence was 14 days' imprisonment because of a prior conviction - Accused sought to serve sentence on weekends because he would lose his job otherwise - The trial judge stated that intermittent sentence was improper in drinking and driving cases - The Newfoundland Supreme Court, Trial Division, stated that, under s. 737(1)(c) of the Criminal Code, the court should consider the accused's age and character and the nature and circumstances of the offence - The court allowed intermittent imprisonment - See paragraphs 15 to 18.

Civil Rights - Topic 5678

Equality and protection of the law - Particular cases - Certificate evidence - [See second Criminal Law - Topic 5821].

Criminal Law - Topic 5821

Sentencing - Procedure and rights of accused - Proof of prior convictions - The Crown served the accused notice of intention to seek greater punishment if the accused had a previous conviction - The Crown served a second notice specifying the accused's conviction but misstating the date to a date subsequent - No copy of the certificate of conviction was served - The Newfoundland Supreme Court, Trial Division, held that the second notice was a nullity - The particular prior conviction need not be specified, however and the first notice validly notified the accused of the Crown's intention - See paragraphs 3 to 12.

Criminal Law - Topic 5821

Sentencing - Procedure and rights of accused - Proof of prior convictions - Section 667(1)(a)(ii) provided a certificate of the clerk of the court was deemed proof of the previous conviction against the accused - The Newfoundland Supreme Court, Trial Division, held that the provision was not discriminatory and did not offend s. 15 of the Charter - See paragraphs 13 to 14.

Cases Noticed:

R. v. Bear (No. 2) (1979), 2 Sask.R. 191; 47 C.C.C.(3d) 462 (C.A.), refd to. [para. 10].

R. v. Pillsbury (1973), 10 C.C.C.(2d) 178 (Ont. C.A.), refd to. [para. 10].

R. v. Duncan (1982), 1 C.C.C.(3d) 444 (B.C.C.A.), refd to. [para. 10].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 13].

Criminal Code, R.S.C. 1970, c. C-34, sect. 234, sect. 234.1, sect. 235, sect. 236 [para. 9]; sect. 236(1) [para. 3]; sect. 237(b) [paras. 1, 7, 17]; sect. 239 [para. 7]; sect. 239(1)(a)(ii) [para. 1]; sect. 592 [para. 7]; sect. 594 [para. 4]; sect. 594(1)(ii) [para. 13].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [paras. 1, 7]; sect. 255 [para. 7]; sect. 255(1)(c)(ii) [para. 1]; sect. 665 [para. 7]; sect. 667 [para. 4]; sect. 667(1)(a)(ii) [para. 13]; sect. 667(1)(a)(iii) [para. 14]; sect. 737(1)(c) [para. 16].

Counsel:

Wayne Dymond, for the appellant;

Paul Malone, for the respondent.

This appeal was heard on November 2, 1990, before Kevin Barry, J., of the Newfoundland Supreme Court, Trial Division, who filed the following judgment on March 1, 1991.