R. v. Gagne (R.L.), 2014 NSSC 453

• Judge: MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 17, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 453;(2014), 358 N.S.R.(2d) 392 (SC)

R. v. Gagne (R.L.) (2014), 358 N.S.R.(2d) 392 (SC);

    1131 A.P.R. 392

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.041

Her Majesty the Queen v. Rene Leo Gagne

(Syd. No. 422891; 2014 NSSC 453)

Indexed As: R. v. Gagne (R.L.)

Nova Scotia Supreme Court

MacDonald, J.

December 17, 2014.

Summary:

The accused pleaded guilty to aggravated assault for stabbing his former girlfriend, and arson for setting fire to the girlfriend's barn. Counsel for both sides recommended a global sentence of 11 years' imprisonment, less credit for pre-sentence custody.

The Nova Scotia Supreme Court accepted the joint recommendation. The accused was sentenced to nine years for aggravated assault and two years consecutive for arson, less three years, nine months and 16 days for pre-sentence custody. The accused was also ordered to pay restitution of $1,500 to the victim to reimburse her for the loss of deductions that she had to pay as a result of the damage to her barn.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - Gagne (65 years old) and MacLeod had recently ended their relationship - Gagne went to MacLeod's residence and ended up stabbing her several times - He then attempted to end his own life by stabbing himself and setting fire to MacLeod's barn while he was inside - Gagne pleaded guilty to aggravated assault and arson and was sentenced to a nine years' imprisonment for aggravated assault and two years consecutive for arson - The Crown also sought restitution orders of (1) $1,500 to reimburse MacLeod for the loss of deductions that she had to pay as a result of the damage to her barn, and (2) $20,740.73 to reimburse an insurance company for the amount that it paid to MacLeod for the loss of her barn - The Nova Scotia Supreme Court allowed the first request but denied the second - Gagne would have a very limited income when he was released from jail - He would likely receive a pension in such a low amount that he would not be in a position to pay a restitution order in excess of $20,000 - This would be unfair and could impact on Gagne's rehabilitation - In addition, Gagne had been adequately punished by the sentence that he received - See paragraphs 31 to 35.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5867

Sentence - Arson - [See Criminal Law - Topic 5792 and Criminal Law - Topic 5938 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - Gagne and MacLeod had recently ended their relationship - Gagne called MacLeod one day, but she ignored his calls, so Gagne went to her residence - They had a brief discussion - When MacLeod turned her back, Gagne grabbed her and stabbed her with a knife from his pocket - MacLeod ran outside - Gagne caught her in the driveway and continued stabbing her - He then attempted to end his own life by stabbing himself and setting fire to MacLeod's barn while he was inside - MacLeod's 12 year old daughter witnessed part of the attack from a window - MacLeod suffered serious injuries to her throat, abdomen, arm, hands, back and chest - Gagne pleaded guilty to aggravated assault and arson - The Crown accepted that Gagne did not intend to harm MacLeod when he went to her residence, but that intent arose during the course of their discussion - The Nova Scotia Supreme Court found that was a case of extreme domestic violence - Both MacLeod and her daughter were traumatized - The court accepted a joint recommendation and sentenced Gagne to nine years' imprisonment for aggravated assault and two years consecutive for arson, less credit for time already served - Although this was a fairly lengthy sentence for a first time offender, it should serve to deter others.

Cases Noticed:

R. v. Grady (1971), 5 N.S.R.(2d) 264 (C.A.), refd to. [para. 8].

R. v. Muise (D.R.) (No. 4) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 13].

R. v. Bryan (A.C.) (2008), 272 N.S.R.(2d) 246; 869 A.P.R. 246; 2008 NSCA 119, refd to. [para. 14].

R. v. Al-Rabie (A.) (2009), 277 N.S.R.(2d) 327; 882 A.P.R. 327; 2009 NSCA 55, refd to. [para. 14].

R. v. Aukaj, [2013] B.C.J. No. 76 (S.C.), refd to. [para. 14].

R. v. Carelse (B.K.) (2013), 411 Sask.R. 263; 2013 SKQB 15, refd to. [para. 14].

R. v. Carrington, [2002] O.J. No. 2818, refd to. [para. 14].

R. v. Lee (T.I.J.), [2014] A.R. Uned. 408; 2014 ABCA 400, refd to. [para. 14].

R. v. Fulton (C.), [2012] O.A.C. Uned. 641; 2012 ONCA 781, refd to. [para. 14].

R. v. Wishlow (A.C.) (2013), 291 Man.R.(2d) 149; 570 W.A.C. 149; 2013 MBCA 34, refd to. [para. 14].

R. v. Safarzadeh-Markhali (H.) (2014), 325 O.A.C. 17; 2014 ONCA 627, refd to. [para. 15].

R. v. McAndrews, [2012] O.J. No. 4251, refd to. [para. 15].

R. v. Pitkeathly (D.B.) (1994), 69 O.A.C. 352 (C.A.), refd to. [para. 15].

R. v. Young (B.M.) (2014), 362 Nfld. & P.E.I.R. 218; 1125 A.P.R. 218 (N.L. Prov. Ct.), refd to. [para. 15].

R. v. Tarr (J.F.) (2009), 274 N.S.R.(2d) 123; 874 A.P.R. 123; 2009 NSPC 2, refd to. [para. 15].

R. v. Bowers (S.D.), [2010] N.S.R.(2d) Uned. 114; 2010 NSSC 184, refd to. [para. 15].

R. v. Wright, [2004] N.S.J. No. 612, refd to. [para. 15].

R. v. Brian (C.R.) (2008), 269 N.S.R.(2d) 79; 860 A.P.R. 79; 2008 NSCA 91, refd to. [para. 24].

R. v. Fudge (C.) (2013), 338 N.S.R.(2d) 269; 1071 A.P.R. 269; 2013 NSCA 149, refd to. [para. 25].

R. v. Popert (N.) (2010), 258 O.A.C. 163; 2010 ONCA 89, refd to. [para. 34].

Counsel:

D. Shane Russell, for the Crown;

Patricia Fricker-Bates and Allan Nicholson, for the defence.

This matter was heard on December 17, 2014, before MacDonald, J., of the Nova Scotia Supreme Court, who delivered a decision orally on the same date, and released the following written decision on December 24, 2014.