R. v. Frigault (C.R.), (2012) 383 N.B.R.(2d) 266 (CA)

• Judge: Richard, Bell and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 10, 2011
• Jurisdiction: New Brunswick
• Citations: (2012), 383 N.B.R.(2d) 266 (CA);2012 NBCA 8

R. v. Frigault (C.R.) (2012), 383 N.B.R.(2d) 266 (CA);

    383 R.N.-B.(2e) 266; 991 A.P.R. 266

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]

.........................

Temp. Cite: [2012] N.B.R.(2d) TBEd. FE.007

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.007

Christopher Robert Frigault (appellant) v. Her Majesty the Queen (respondent)

(4-11-CA; 2012 NBCA 8)

Indexed As: R. v. Frigault (C.R.)

Répertorié: R. v. Frigault (C.R.)

New Brunswick Court of Appeal

Richard, Bell and Quigg, JJ.A.

February 2, 2012.

Summary:

Résumé:

The accused, who possessed an "extensive criminal record", pleaded guilty to the following counts: (1) break, enter and theft; (2) failing to remain at the scene of an accident; (3) operating a motor vehicle in a manner dangerous to the public; and (4) failure to comply with a probation order.

The New Brunswick Provincial Court, in a decision not reported in this series of reports, ordered the following sentences: Count 1, three years in a federal penitentiary; Count 2, four months, consecutive; Count 3, four months, consecutive; and Count 4, four months, consecutive. Total: four years in a federal penitentiary. The accused appealed, with leave.

The New Brunswick Court of Appeal dismissed the appeal.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused, who possessed an "extensive criminal record", pleaded guilty to the following counts: (1) break, enter and theft; (2) failing to remain at the scene of an accident; (3) operating a motor vehicle in a manner dangerous to the public; and (4) failure to comply with a probation order - The sentencing judge sentenced the accused to four years in a federal penitentiary - The accused appealed, arguing that the trial judge failed to provide reasons as to why he imposed a harsher sentence than the one suggested by the Crown prosecutor - The New Brunswick Court of Appeal dismissed the appeal - The trial transcript showed that there was a dialogue between the accused and the sentencing judge which revealed that the judge was sympathetic to the accused's circumstances and was attempting to arrive at a sentence which would not only deter the accused from future breaches of the law, but would assist him in achieving his goal of rehabilitation - It was apparent that the sentencing judge was alive to the principles of sentencing found at s. 718 of the Criminal Code - In addition, the court stated that the trial transcript indicated that the Crown prosecutor had, in fact, recommended a three-year minimum sentence - See paragraphs 9 to 14.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. "jump" principle) - The accused, who possessed an "extensive criminal record", pleaded guilty to the following counts: (1) break, enter and theft; (2) failing to remain at the scene of an accident; (3) operating a motor vehicle in a manner dangerous to the public; and (4) failure to comply with a probation order - The sentencing judge ordered the following sentences: Count 1, three years in a federal penitentiary; Count 2, four months, consecutive; Count 3, four months, consecutive; and Count 4, four months, consecutive - Total: four years in a federal penitentiary - The accused, who had previously been sentenced to two consecutive one year jail terms for break and enter, appealed - He argued that "the significant increase in the sentence for break and enter as compared to previous sentences constitutes a violation of the jump principle" - The New Brunswick Court of Appeal dismissed the appeal - The application of the jump principle was useful in the consideration of sentencing on single offences and was of less utility in cases where a judge was sentencing an accused with a lengthy criminal record on multiple convictions - In addition, this was the accused's fifth break and enter and he had been incarcerated previously - See paragraphs 15 to 19.

Criminal Law - Topic 5851

Sentence - Break and enter - The accused, who possessed an "extensive criminal record", pleaded guilty to the following counts: (1) break, enter and theft (rock used to make a hole in the glass door of an Irving store and cigarettes taken from the store); (2) failing to remain at the scene of an accident; (3) operating a motor vehicle in a manner dangerous to the public (excessive speed, loss of control, and hitting a house and another vehicle); and (4) failure to comply with a probation order - The sentencing judge ordered the following sentences: Count 1, three years in a federal penitentiary; Count 2, four months, consecutive; Count 3, four months, consecutive; and Count 4, four months, consecutive - Total: four years in a federal penitentiary - The accused, who had previously been sentenced to two consecutive one year jail terms for break and enter, appealed - He argued that the sentence was "disproportionate" - The New Brunswick Court of Appeal dismissed the appeal - See paragraphs 15 to 19.

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5865

Sentence - Dangerous driving - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5851 ].

Droit criminel - Cote 4684

Procédure - Jugements et motifs de jugement - Motifs de jugement - Caractère suffisant des motifs - [Voir Criminal Law - Topic 4684 ].

Droit criminel - Cote 5810.2

Détermination de la peine - Procédure de détermination de la peine et droits du prévenu - Motifs de la peine - [Voir Criminal Law - Topic 5810.2 ].

Droit criminel - Cote 5830

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Généralités (y compris le principe de la gradation) - [Voir Criminal Law - Topic 5830 ].

Droit criminel - Cote 5851

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

Droit criminel - Cote 5854

Peine - Vol - [Voir Criminal Law - Topic 5854 ].

Droit criminel - Cote 5865

Peine - Conduite dangereuse - [Voir Criminal Law - Topic 5865 ].

Droit criminel - Cote 5866

Peine - Quitter le lieu d'un accident - [Voir Criminal Law - Topic 5866 ].

Droit criminel - Cote 5898

Peine - Défaut de se conformer à une ordonnance de probation - [Voir Criminal Law - Topic 5898 ].

Cases Noticed:

R. v. Long (D.J.) (2011), 378 N.B.R.(2d) 307; 973 A.P.R. 307; 2011 NBCA 94, consd. [para. 8].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, consd. [para. 9].

R. v. R.D.H. (2009), 360 N.B.R.(2d) 1; 930 A.P.R. 1; 2009 NBCA 28, consd. [para. 10].

R. v. Bernard (A.) (2011), 303 N.S.R.(2d) 384; 957 A.P.R. 384; 2011 NSCA 53, consd. [para. 16].

R. v. Andrade (F.) (2010), 363 N.B.R.(2d) 159; 936 A.P.R. 159; 2010 NBCA 62, consd. [para. 18].

R. v. LeBlanc (G.A.) (2003), 264 N.B.R.(2d) 341; 691 A.P.R. 341; 2003 NBCA 75, refd to. [para. 19].

Authors and Works Noticed:

Ruby, Clayton, Sentencing (7th Ed. 2008), p. 389, ss. 8.79 and 8.80 [para. 17].

Counsel:

Avocats:

Ben Reentovich, for the appellant;

Patrick Wilbur, for the respondent.

This appeal was heard on November 10, 2011, by Richard, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on February 2, 2012, by Quigg, J.A.