R. v. G.W.C.,

• Judge: Picard, Berger and Costigan, JJ.A.
• Neutral Citation: 2000 ABCA 333
• Citation: 2000 ABCA 333,(2000), 277 A.R. 20 (CA),[2001] 5 WWR 230,277 AR 20,89 Alta LR (3d) 217,150 CCC (3d) 513,[2000] CarswellAlta 1533,[2000] AJ No 1585 (QL),242 WAC 20,[2000] A.J. No 1585 (QL),(2000), 277 AR 20 (CA),242 W.A.C. 20,277 A.R. 20
• Date: 17 July 2000
• Court: Court of Appeal (Alberta)

R. v. G.W.C. (2000), 277 A.R. 20 (CA);

    242 W.A.C. 20

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JA.035

Her Majesty the Queen (respondent) v. G.W.C. (appellant)

(0003-0073-A; 2000 ABCA 333)

Indexed As: R. v. G.W.C.

Alberta Court of Appeal

Picard, Berger and Costigan, JJ.A.

December 22, 2000 and February 16, 2001.

Summary:

The accused pleaded guilty to two counts of sexual assault against two children which occurred when he was between the ages of 14 and 17. The trial judge sentenced the accused to one year closed custody and 18 months' probation. The accused appealed.

The Alberta Court of Appeal allowed the appeal. The court directed counsel to provide more information so that it could determine an appropriate sentence. Following submissions from counsel, the court issued supplementary reasons and imposed a sentence of two years' probation (see paragraphs 29 to 34).

Criminal Law - Topic 4987

Appeals - Indictable offences - Powers of Court of Appeal - Powers re sentencing - The Alberta Court of Appeal stated that ss. 683(3) and 687 of the Criminal Code did not give the Court of Appeal power to remit a matter to the Provincial Court for sentencing - See paragraph 28.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The 32 year old accused pleaded guilty to two counts of sexual assault against two children that occurred when he was between 14 and 17 years old - The trial judge rejected a joint submission that the accused receive probation with strict conditions and sentenced the accused to one year closed custody and 18 months' probation - The Alberta Court of Appeal allowed the accused's appeal - The trial judge referenced only the sentencing principles in s. 718 of the Criminal Code without regard to the specific sentencing provisions of the Young Offenders Act and, therefore, imposed a distinctly adult level of accountability - The trial judge also failed to inquire into the circumstances which formed the basis of the joint sentencing submission - The court considered counsel's reasons for the joint submission and sentenced the accused to two years' probation.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Alberta Court of Appeal stated that the trial judge's obligation "to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the plea bargain and the sentencing court's role in the administration of justice. The certainty that is required to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence." - The court stated that joint submissions should be accepted unless they were unfit or unreasonable - The court noted that "a joint submission need not be followed as long as it is given 'serious consideration', particularly where there is a guilty plea" - Serious consideration required a careful and diligent inquiry of counsel as to the circumstances underlying the joint submission - See paragraphs 17 to 20.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Alberta Court of Appeal stated that "Once a sentencing judge concludes that he might not accede to a joint submission, fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the sentencing judge's concerns before the sentence is imposed." - See paragraph 26.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of the accused - Right of accused to be heard - [See third Criminal Law - Topic 5813 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See first Criminal Law - Topic 5813 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - [See Criminal Law - Topic 4987 ].

Criminal Law - Topic 6222

Sentencing - Appeals - Variation of sentence - Jurisdiction - [See Criminal Law -Topic 4987 ].

Cases Noticed:

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. 11].

R. v. D.A.Z., [1992] 2 S.C.R. 1025; 140 N.R. 327; 131 A.R. 1; 76 C.C.C.(3d) 97, refd to. [para. 13].

R. v. J.J.M., [1993] 2 S.C.R. 421; 152 N.R. 274; 85 Man.R.(2d) 161; 41 W.A.C. 161; 81 C.C.C.(3d) 487, refd to. [para. 15].

R. v. Pashe (S.J.) (1995), 100 Man.R.(2d) 61; 91 W.A.C. 61 (C.A.), refd to. [para. 17].

R. v. Sinclair, [1996] A.J. No. 464 (C.A.), refd to. [para. 18].

R. v. Hudson, [1995] A.J. No. 797 (C.A.), refd to. [para. 18].

R. v. Dorsey (C.) (1999), 123 O.A.C. 342 (C.A.), refd to. [para. 18].

R. v. Wood (1988), 29 O.A.C. 99; 43 C.C.C.(3d) 570 (C.A.), refd to. [para. 19].

R. v. Beaulieu (H.A.W.) (1997), 118 Man.R.(2d) 148; 149 W.A.C. 148 (C.A.), refd to. [para. 19].

R. v. S.M.L. (1998), 40 W.C.B.(2d) 449 (Alta. Q.B.), refd to. [para. 19].

R. v. Morissette, [1996] O.J. No. 3701 (C.A.), refd to. [para. 21].

R. v. Quinn, [1999] O.J. No. 2706 (C.A.), refd to. [para. 21].

R. v. Sherlock (V.E.A.) (1998), 131 Man.R.(2d) 143; 187 W.A.C. 143 (C.A.), refd to. [para. 22].

R. v. Maheu, [1992] A.Q. No. 21 (C.A.), refd to. [para. 23].

R. v. Pelletier (1989), 52 C.C.C.(3d) 340 (Que. C.A.), refd to. [para. 28].

R. v. Berry (A.S.) (1997), 196 A.R. 398; 141 W.A.C. 398 (C.A.), refd to. [para. 28].

R. v. Bleha (L.) (1992), 133 A.R. 16 (Q.B.), refd to. [para. 28].

R. v. Driscoll (K.M.) (1995), 55 B.C.A.C. 241; 90 W.A.C. 241 (C.A.), refd to. [para. 28].

R. v. Schwartz (1991), 1 B.C.A.C. 192; 1 W.A.C. 192 (C.A.), refd to. [para. 28].

Counsel:

J.A. Bowron, for the respondent;

D. Bottos, for the appellant.

This appeal was heard on July 17, 2000, by Picard, Berger and Costigan, JJ.A., of the Alberta Court of Appeal. Berger, J.A., delivered the following reasons for the Court of Appeal on December 22, 2000 and February 16, 2001.