R. v. J.J.W., (2012) 321 N.S.R.(2d) 298 (CA)

• Judge: MacDonald, C.J.N.S., Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 02, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 321 N.S.R.(2d) 298 (CA);2012 NSCA 96

R. v. J.J.W. (2012), 321 N.S.R.(2d) 298 (CA);

    1018 A.P.R. 298

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. OC.004

Her Majesty the Queen (appellant) v. J.J.W. (respondent)

(CAC 353674; 2012 NSCA 96)

Indexed As: R. v. J.J.W.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland and Beveridge, JJ.A.

October 2, 2012.

Summary:

The accused was convicted of sexual assault and two counts of assault. The victim was his former wife. In two incidents in 2007, the accused had pushed his wife to the ground and later had forced anal intercourse with her and kicked her. The Crown sought 2-3 years' imprisonment. The trial judge sentenced the accused to five months' imprisonment for sexual assault and consecutive eight and three month conditional sentences for the assaults. The trial judge declined to order the accused to be registered as a sex offender under the Sex Offender Information Registration Act (SOIRA), applying the exemption respecting gross disproportionality. The Crown appealed against sentence and the refusal to impose an SOIRA order. The accused had now served both his term of imprisonment and conditional sentences.

The Nova Scotia Court of Appeal dismissed the appeal. The five month sentence for sexual assault was manifestly unfit. A fit sentence for the sexual assault and the two assaults would be 2.5 years' imprisonment. However, it was not in the interests of justice to reincarcerate the accused where it would negatively impact his rehabilitation.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3090.8

Special powers - Sex offender registration legislation - Registration - Appeals - The accused was convicted of sexually assaulting his wife (forced anal intercourse) - The trial judge declined to order the accused to register under the Sex Offender Information Registration Act on the ground that registration would be grossly disproportionate to the public interest in protecting society through the effective investigation of sexual crimes (Criminal Code, s. 490.012(4) exemption) - The Crown appealed - The Nova Scotia Court of Appeal quashed the appeal on the ground that there was no right of appeal for the making of, or declining to make, a registration order under s. 490.012(1) - See paragraphs 44 to 54.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - In 2007, the accused pushed his wife to the ground - Several months later, he had forced anal intercourse with her, then kicked her - The accused was convicted of sexual assault and two counts of assault - He had no prior record - Following the convictions, his employment as a firefighter was terminated - The Crown sought 2-3 years' imprisonment - The trial judge sentenced the accused to five months' imprisonment for sexual assault and consecutive eight and three month conditional sentences - The Crown appealed - The accused had now served his term of imprisonment and his conditional sentences - He was in counselling and a family violence program - He was retraining as a heavy equipment officer in case his arbitration to get his job back was unsuccessful - The Nova Scotia Court of Appeal held that five months' imprisonment for a major sexual assault was manifestly unfit - Domestic violence involved a high level of moral blameworthiness - The trial judge over-emphasized the accused's personal circumstances (loss of employment, delay between charge and conviction, etc.) and under-emphasized denunciation and deterrence - A fit sentence for the sexual assaults and the assaults was 2.5 years' imprisonment - However, it was no longer in the interests of justice to re-incarcerate the accused, as re-incarceration would negatively impact his rehabilitation.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 6].

R. v. Naugle (T.L.) (2011), 302 N.S.R.(2d) 68; 955 A.P.R. 68; 2011 NSCA 33, refd to. [para. 6].

R. v. Bernard (A.) (2011), 303 N.S.R.(2d) 384; 957 A.P.R. 384; 2011 NSCA 53, refd to. [para. 6].

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. 6].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 13].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 14].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 15].

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79; 40 Alta. L.R.(2d) 265; 48 C.R.(3d) 154 (C.A.), refd to. [para. 17].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 17].

R. v. Iron (L.J.) (2005), 269 Sask.R. 51; 357 W.A.C. 51; 2005 SKCA 84, refd to. [para. 18].

R. v. Vokey (H.A.) (2000), 186 Nfld. & P.E.I.R. 1; 564 A.P.R. 1; 2000 NFCA 14, refd to. [para. 19].

R. v. Freake (J.) (2012), 318 Nfld. & P.E.I.R. 305; 989 A.P.R. 305; 2012 NLCA 10, refd to. [para. 19].

R. v. Squires (P.J.) (2012), 320 Nfld. & P.E.I.R. 39; 993 A.P.R. 39; 2012 NLCA 20, refd to. [para. 19].

R. v. P.V.K. (1992), 116 N.S.R.(2d) 110; 320 A.P.R. 110 (T.D.), refd to. [para. 20].

R. v. O.B. (1995), 141 N.S.R.(2d) 339; 403 A.P.R. 339 (T.D.), refd to. [para. 20].

R. v. Blackburn (1986), 75 N.S.R.(2d) 30; 186 A.P.R. 30 (C.A.), refd to. [para. 20].

R. v. R.G. (2003), 232 Nfld. & P.E.I.R. 273; 600 A.P.R. 273; 2003 NLCA 73, dist. [para. 25].

R. v. G.W.P. (2006), 259 Nfld. & P.E.I.R. 214; 781 A.P.R. 214; 2006 NLTD 136, dist. [para. 26].

R. v. Healy (R.) (1994), 149 A.R. 230; 63 W.A.C. 230 (C.A.), dist. [para. 27].

R. v. R.H. - see R. v. Healy (R.).

R. v. L.F.W. (2000), 249 N.R. 345; 185 Nfld. & P.E.I.R. 1; 562 A.P.R. 1; 2000 SCC 6, refd to. [para. 29].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 29].

R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363; 186 C.C.C.(3d) 181 (C.A.), refd to. [para. 34].

R. v. Ens (T.K.) (2011), 272 Man.R.(2d) 223; 2011 MBQB 301, refd to. [para. 40].

R. v. Maguire, 2005 CarswellOnt 1696 (Sup. Ct.), refd to. [para. 40].

R. v. Campbell (W.P.) (1992), 102 Nfld. & P.E.I.R. 259; 323 A.P.R. 259 (P.E.I.T.D.), refd to. [para. 40].

R. v. Jaikaran (J.) (2007), 404 A.R.169; 394 W.A.C. 169; 2007 ABCA 98, refd to. [para. 40].

R. v. Van de Wiele (A.), [1997] 3 W.W.R. 477; 152 Sask.R. 65; 140 W.A.C. 65 (C.A.), refd to. [para. 40].

R. v. Debidin (S.) (2008), 244 O.A.C. 268; 2008 ONCA 868, refd to. [para. 49]

R. v. Chisholm (C.J.) (2012), 393 N.B.R.(2d) 198; 1017 A.P.R. 198; 2012 NBCA 79, agreed with [para. 53].

R. v. Escott (1985), 10 O.A.C. 89; 1985 CarswellOnt 1461 (C.A.), refd to. [para. 59].

R. v. D.G.F. (2010), 259 O.A.C. 364; 2010 ONCA 27, refd to. [para. 61].

R. v. Leo-Mensah (P.) (2010), 259 O.A.C. 196; 2010 ONCA 139, leave to appeal denied (2010), 413 N.R. 400 (S.C.C.), refd to. [para. 61].

R. v. Best (C.A.) (2012), 315 N.S.R.(2d) 243; 998 A.P.R. 243; 2012 NSCA 34, refd to. [para. 64].

R. v. Kane (M.) (2012), 325 Nfld. & P.E.I.R. 78; 1009 A.P.R. 78; 2012 NLCA 53, refd to. [para. 67].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, refd to. [para. 68].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 2004 CarswellOnt 3214 (C.A.), refd to. [para. 68].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (7th Ed. 2008), paras. 5.230, 5.231 [para. 39].

Counsel:

Mark Scott, for the appellant;

Vince A. Gillis, Q.C., for the respondent.

This appeal was heard on June 1, 2012, at Halifax, N.S., before MacDonald, C.J.N.S., Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On October 2, 2012, Oland, J.A., delivered the following judgment for the Court of Appeal.