R. v. J.J., 2004 NLCA 81

JudgeWells, C.J.N.L., Roberts and Rowe, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateOctober 19, 2004
JurisdictionNewfoundland and Labrador
Citations2004 NLCA 81;(2004), 244 Nfld. & P.E.I.R. 24 (NLCA)

R. v. J.J. (2004), 244 Nfld. & P.E.I.R. 24 (NLCA);

  726 A.P.R. 24

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. JA.037

Her Majesty the Queen (appellant) v.

J.J. (respondent)

(03/64; 2004 NLCA 81)

Indexed As: R. v. J.J.

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Roberts and Rowe, JJ.A.

December 13, 2004.

Summary:

The accused was convicted of sexually assaulting the victim by forcing a beer bottle into her vagina while she was sleeping. This was the seventeenth assault by the accused against the victim. He had also been convicted of various other assaults against women. The trial judge convened a sentencing circle. The trial judge accepted the sentencing circle’s recommendation for a conditional sentence of two years less a day. The Crown appealed.

The Newfoundland and Labrador Court of Appeal held that the trial judge failed to consider relevant factors in exercising his discretion to convene a sentencing circle. However, the court dismissed the appeal where it was in the interest of justice to leave the sentence in place to run its course.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The Newfoundland and Labrador Court of Appeal set out the following five general factors to be considered in deciding whether or not to use a sentencing circle: “(1) the willingness and suitability of the convicted person; (2) the willingness of the victim (freely given); (3) the willingness of a suitable community to participate in the circle and in implementing its recommendations; (4) whether the offence, in all the circumstances, is one that requires a term of imprisonment; and (5) such other relevant factors as may appear important to the Trial Judge, in the context of the case.” - See paragraph 34 - The court also discussed how the results of a sentencing circle should be used - See paragraphs 35 to 53.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The accused was convicted of sexually assaulting P. - Both were Innu - They were in a long term relationship and had two children together - Both chronically abused alcohol - On the date in question, they drank throughout the day and into the night - P. passed out fully clothed - She awoke by severe pain - She was naked - The accused was forcing a beer bottle into her vagina - Eight days earlier, following a sentencing circle, the accused was sentenced to probation for seriously beating P. - 39 previous convictions, of which 21 were for acts of violence, including 16 against P. - Following a sentencing circle, the trial judge imposed a conditional sentence of two years less a day - The Newfoundland and Labrador Court of Appeal held that the trial judge failed to adequately address the accused’s willingness and suitability to participate in a sentencing circle, failed to consider evidence that the victim had been pressured into participating and did not adequately address whether imprisonment was required - However, it was in the interest of justice to let the sentence run its course - The accused had neither drank nor reoffended for three years, was caring for his children and appeared to have turned around his life - Imprisonment might jeopardize what had been achieved - See paragraphs 54 to 80.

Criminal Law - Topic 5933

Sentence - Sexual assault with weapon, threats to third party or causing bodily harm - [See second Criminal Law - Topic 5809.2 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See second Criminal Law - Topic 5809.2 ].

Cases Noticed:

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, refd to. [para. 10].

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. 10].

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. 10].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 13].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273, refd to. [para. 13].

R. v. Johnson (G.) (1994), 48 B.C.A.C. 93; 78 W.A.C. 93; 91 C.C.C.(3d) 21 (Y.T.C.A.), refd to. [para. 26].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120 (C.A.), folld. [para. 27].

R. v. Joseyounen, [1995] 6 W.W.R. 438 (Sask. Prov. Ct.), refd to. [para. 27].

R. v. Cheekinew (L.J.) (1993), 108 Sask.R. 114; 80 C.C.C.(3d) 143 (Q.B.), refd to. [para. 28].

R. v. Labelle (B.) (2002), 299 A.R. 78; 266 W.A.C. 78 (C.A.), refd to. [para. 32].

R. v. B.L. - see R. v. Labelle (B.).

R. v. Taylor (W.B.) (1997), 163 Sask.R. 29; 165 W.A.C. 29; 122 C.C.C.(3d) 376 (C.A.), folld. [para. 33].

R. v. Morris (D.J.) (2004), 198 B.C.A.C. 235; 324 W.A.C. 235; 186 C.C.C.(3d) 549 (C.A.), refd to. [para. 43].

R. v. Taylor (W.B.) (1997), 163 Sask.R. 29; 165 W.A.C. 29 (C.A.), refd to. [para. 46].

R. v. W.B.T. (1997), 163 Sask.R. 29 (C.A.), refd to. [para. 46].

R. v. Oates (K.) (1992), 100 Nfld. & P.E.I.R. 289; 318 A.P.R. 289 (Nfld. C.A.), refd to. [para. 78].

Counsel:

Lynn Moore, for the appellant;

Dennis C. MacKay, Q.C., for the respondent.

This appeal was heard on October 19, 2004, by Wells, C.J.N.L., Roberts and Rowe, JJ.A., of the Newfoundland and Labrador Court of Appeal. Rowe, J.A., delivered the following reasons for judgment for the court on December 13, 2004.

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