R. v. Johns (J.C.), (1995) 66 B.C.A.C. 97 (YukCA)

• Judge: McEachern, C.J.B.C., Goldie and Prowse, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: September 19, 1995
• Jurisdiction: Yukon
• Citations: (1995), 66 B.C.A.C. 97 (YukCA)

R. v. Johns (J.C.) (1995), 66 B.C.A.C. 97 (YukCA);

    108 W.A.C. 97

MLB headnote and full text

Regina (appellant) v. Johnny Clifford Johns (respondent)

(No. YU00326)

Indexed As: R. v. Johns (J.C.)

Yukon Court of Appeal

McEachern, C.J.B.C., Goldie and Prowse, JJ.A.

November 3, 1995.

Summary:

The accused was convicted of driving with an excessive blood-alcohol level. The sen­tencing judge sentenced the accused to 90 days' imprisonment and two years' probation. The Crown appealed.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentenc­ing circle - The Yukon Court of Appeal, per Prowse, J.A., discussed the need for guidelines for sentencing judges in the Yukon in determining whether circle sen­tencing was appropriate in a given case and the procedure to be followed - The court stated that the guidelines had to be developed by the sentencing judges and not the appeal courts - McEachern, C.J.B.C., reiterated the need for guidelines and added that the role of the prosecutor had to be clarified "because it may be useful in some cases for the opinions of some members of the circle to be tested" - Goldie, J.A., stated that some objective rules or guidelines for the role of the appellate process had to be set out - See paragraphs 23 to 30, 33 to 36 and 39.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - The Yukon Court of Appeal, per McEachern, C.J.B.C., stated that "[i]n circumstances where the judge is satisfied that there is a real possi­bility the accused can be rehabilitated without a term of imprisonment, or ... by the minimum custodial sentence required by law, an appeal court should not lightly interfere." - See paragraph 32.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - The accused was convicted of driving with an excessive blood-alcohol level - The accused had six prior convictions for drinking and driving offences - The Crown served notice of intention to seek greater punishment - The accused enrolled in a residential alcohol treatment program and had been sober for eight months at the time of sentencing - The sentencing pro­cedure involved an aboriginal sentencing circle - The sentencing judge sentenced the accused to 90 days' imprisonment and two years' probation - The probation order included alcohol treatment after the accused was released from jail, community service, two weeks house arrest and at­tendance at a Men's Camp - The Crown appealed - The Yukon Court of Appeal upheld the sentence, stating that the sen­tence was fit when viewed in its entirety - See paragraphs 2 to 22.

Cases Noticed:

R. v. Johnson (G.) (1994), 48 B.C.A.C. 93; 78 W.A.C. 93; 31 C.R.(4th) 262; 91 C.C.C.(3d) 21 (Y.T.C.A.), refd to. [paras. 24, 33].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120, refd to. [para. 25].

R. v. Cheekinew (L.J.) (1993), 108 Sask.R. 114; 80 C.C.C.(3d) 143 (Q.B.), refd to. [para. 26].

R. v. Preston (1990), 47 B.C.L.R.(2d) 273; 79 C.R.(3d) 61 (C.A.), refd to. [para. 32].

Counsel:

R. Garson, for the appellant;

N. Clarke, for the respondent.

This appeal was heard in Vancouver, British Columbia, on September 19, 1995, by McEachern, C.J.B.C., Goldie and Prowse, JJ.A., of the Yukon Territory Court of Appeal. The decision of the court was delivered on November 3, 1995, including the following opinions:

Prowse, J.A. - see paragraphs 1 to 30;

McEachern, C.J.B.C. - see paragraphs 31 to 37;

Goldie, J.A. - see paragraphs 38 and 39.