R. v. Izzard (B.W.), (1999) 175 N.S.R.(2d) 288 (CA)

• Judge: Glube, C.J.N.S., Hart and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 21, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 175 N.S.R.(2d) 288 (CA)

R. v. Izzard (B.W.) (1999), 175 N.S.R.(2d) 288 (CA);

    534 A.P.R. 288

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. AP.007

Her Majesty The Queen (appellant) v. Bernard William Izzard (respondent)

(C.A.C. No. 149946)

Indexed As: R. v. Izzard (B.W.)

Nova Scotia Court of Appeal

Glube, C.J.N.S., Hart and Pugsley, JJ.A.

January 21, 1999.

Summary:

The accused pleaded guilty to the armed robbery of a convenience store clerk. While others entered the store armed with a knife, bound the clerk with duct tape and stole cigarettes, tobacco, lottery tickets and the cash drawer, the accused remained outside as a lookout and drove the getaway car. The trial judge sentenced the accused to one year's imprisonment plus two years' proba­tion. The Crown appealed the sentence, seeking "at least" two years' imprisonment.

The Nova Scotia Court of Appeal allowed the appeal and substituted a sentence of two years' imprisonment plus two years' proba­tion and a 10 year firearms prohibition under s. 100(1) of the Criminal Code. The court stated that but for the Crown seeking only a two year sentence, the court would have imposed a three year sentence.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5817

Sentencing - Sentencing procedure and rights of accused - Evidence - General - The Nova Scotia Court of Appeal stated that "where there is a dispute about a fact or facts which have a material bearing on the sentence, a trial judge should order a sentence hearing. ... if a judge wishes to question a person on issues relating to the facts which were not raised by either side in their submissions, the judge should hold a sentence hearing and have the person sworn." - See paragraphs 8 to 10.

Criminal Law - Topic 5855

Sentence - Robbery - The 22 year old accused pleaded guilty to the armed rob­bery of a convenience store clerk - While others entered the store armed with a knife, bound the clerk with duct tape and stole cigarettes, tobacco, lottery tickets and the cash drawer, the accused remained outside as a lookout and drove the getaway car - Accused had two previous convic­tions for break and enter and one for theft - Accused unemployed and on social as­sist­ance - Hoped to attend Community Col­lege - Accused minimized his involve­ment - The trial judge sentenced the accused to one year's imprisonment plus two years' probation - The Nova Scotia Court of Appeal held that the sentence was mani­festly inadequate to reflect the sen­tencing objectives in s. 718 of the Criminal Code - The court substituted a sentence of two years' imprisonment plus two years' proba­tion and a 10 year firearms prohi­bition under s. 100(1) of the Criminal Code - But for the Crown seeking only a two year sentence, the court would have im­posed a three year sentence.

Cases Noticed:

R. v. Toulejour (1983), 27 Sask.R. 72 (C.A.), refd to. [para. 8].

R. v. Gardiner (1982), 43 N.R. 361; 68 C.C.C.(2d) 477 (S.C.C.), refd to. [para. 8].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 14].

R. v. Purvis (1976), 14 N.S.R.(2d) 94; 11 A.P.R. 94 (C.A.), refd to. [para. 17].

R. v. Hingley (1977), 19 N.S.R.(2d) 541; 24 A.P.R. 541 (C.A.), refd to. [para. 17].

R. v. Leet (1989), 88 N.S.R.(2d) 161; 225 A.P.R. 161 (C.A.), refd to. [para. 17].

R. v. Cormier (1990), 99 N.S.R.(2d) 382; 270 A.P.R. 382 (C.A.), refd to. [para. 17].

R. v. Bourgeois (S.B.) (1992), 117 N.S.R.(2d) 53; 324 A.P.R. 53 (C.A.), refd to. [para. 17].

R. v. Brewer (D.J.) (1997), 159 N.S.R.(2d) 240; 468 A.P.R. 240 (C.A.), refd to. [para. 17].

R. v. Merlin (1991), 102 N.S.R.(2d) 266; 279 A.P.R. 266 (C.A.), dist. [para. 20].

R. v. Scott (T.) (1996), 152 N.S.R.(2d) 93; 442 A.P.R. 93 (C.A.), dist. [para. 21].

R. v. Luciano-Toulany (1989), 96 N.S.R.(2d) 406; 253 A.P.R. 406 (C.A.), dist. [para. 22].

R. v. Thompson (1983), 58 N.S.R.(2d) 21; 123 A.P.R. 21 (C.A.), dist. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 687(1) [para. 13]; sect. 718, sect. 718.1 [para. 15].

Counsel:

Robert C. Hagell, for the appellant;

Deirdre R. Murphy, for the respondent.

This appeal was heard on January 12, 1999, before Glube, C.J.N.S., Hart and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On January 21, 1999, Glube, C.J.N.S., delivered the following judgment for the Court of Appeal.