R. v. Howell (W.F.), 2013 NSCA 67

• Judge: Beveridge, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 28, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 67;(2013), 330 N.S.R.(2d) 339 (CA)

R. v. Howell (W.F.) (2013), 330 N.S.R.(2d) 339 (CA);

    1046 A.P.R. 339

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.064

Her Majesty the Queen (appellant) v. William Frederick Howell (respondent)

(CAC 400319; 2013 NSCA 67)

Indexed As: R. v. Howell (W.F.)

Nova Scotia Court of Appeal

Beveridge, Farrar and Bryson, JJ.A.

May 28, 2013.

Summary:

The accused was convicted of possession of cocaine for the purpose of trafficking. He sought a conditional sentence. The Crown sought imprisonment, relying on Court of Appeal precedent that the minimum sentence for trafficking in cocaine should be two years' imprisonment, absent exceptional circumstances.

The Nova Scotia Supreme Court, in a judgment reported (2012), 319 N.S.R.(2d) 24; 1010 A.P.R. 24, sentenced the accused to a conditional sentence of two years less a day, with provisions for house arrest. This was one of those rare and exceptional circumstances where the accused, since his arrest, had cured himself of his drug and alcohol addictions and successfully reformed himself. The Crown applied for leave to appeal, arguing that a conditional sentence was unfit.

The Nova Scotia Court of Appeal granted leave, but dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5849.2

Sentencing - Considerations on imposing sentence - Reformation of accused - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession of the purpose of trafficking) - The 41 year old accused was convicted of possession of cocaine for the purpose of trafficking - He was a "petty retailer", at the lowest street level, caught with .5 grams - He had been on virtual house arrest for the past two years, during which time he completely reformed himself by overcoming his drug and alcohol addictions - He was now a useful citizen who was employed and living with his common law spouse and two children - Court of Appeal guidelines called for at least two years' imprisonment for possession of cocaine for the purpose of trafficking, absent exceptional circumstances - The trial judge held that this was one of those rare and exceptional cases where a conditional sentence was appropriate - Rehabilitation trumped deterrence - Where the accused did everything that he could to become a useful citizen, the trial judge stated that "I am not going to prevent him from continuing on that path by imposing incarceration in a federal institution. This is an exception" - The Nova Scotia Court of Appeal dismissed the Crown's sentence appeal - The trial judge did not err in law or in principle in finding "exceptional circumstances" justifying a conditional sentence - The court stated that "while it is disappointing that the trial judge did not engage in a more explicit analysis of why that sentence should be served by way of a conditional sentence order, I am not convinced that in these circumstances, the sentence is unfit".

Cases Noticed:

R. v. Scott (J.J.) (2013), 327 N.S.R.(2d) 256; 1036 A.P.R. 256; 2013 NSCA 28, refd to. [para. 6].

R. v. Scott (J.J.) (2012), 313 N.S.R.(2d) 68; 990 A.P.R. 68; 2012 NSPC 6, refd to. [para. 8].

R. v. Byers (1989), 90 N.S.R.(2d) 263; 230 A.P.R. 263 (C.A.), refd to. [para. 13].

R. v. Butt (R.J.) (2010), 291 N.S.R.(2d) 376; 922 A.P.R. 376; 2010 NSCA 56, refd to. [para. 13].

R. v. Jamieson (F.O.) (2011), 310 N.S.R.(2d) 392; 983 A.P.R. 392; 2011 NSCA 122, refd to. [para. 13].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392; 2009 NSCA 59, refd to. [para. 13].

R. v. Carvery (T.S.) (2012), 313 N.S.R.(2d) 24; 990 A.P.R. 24; 2012 NSSC 49, refd to. [para. 13].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 18].

R. v. Frenette (P.M.) (1997), 159 N.S.R.(2d) 81; 468 A.P.R. 81 (C.A.), refd to. [para. 18].

R. v. Wheatley (R.A.) (1997), 159 N.S.R.(2d) 161; 468 A.P.R. 161 (C.A.), refd to. [para. 18].

R. v. Poulin, 2002 NSCA 91, refd to. [para. 22].

Counsel:

Jeffrey S. Moors and James C. Martin, for the appellant;

Matthew Darrah, for the respondent.

This appeal was heard on March 27, 2013, at Halifax, N.S., before Beveridge, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On May 28, 2013, Beveridge, J.A., delivered the following judgment for the Court of Appeal.