R. v. King (K.J.), (1996) 141 Nfld. & P.E.I.R. 102 (PEICA)

• Judge: Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.
• Case Date: May 21, 1996
• Jurisdiction: Prince Edward Island
• Citations: (1996), 141 Nfld. & P.E.I.R. 102 (PEICA)

R. v. King (K.J.) (1996), 141 Nfld. & P.E.I.R. 102 (PEICA);

    443 A.P.R. 102

MLB headnote and full text

Kenneth Joseph King (appellant) v. Her Majesty the Queen (respondent)

(AD-0647)

Indexed As: R. v. King (K.J.)

Prince Edward Island Supreme Court

Appeal Division

Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.

May 21, 1996.

Summary:

The accused pleaded guilty to a charge of assault, contrary to s. 266(a) of the Criminal Code, and was found guilty of threatening to use a weapon in the commission of an assault, contrary to s. 267(1)(a). The accused was sentenced to a total of 20 months' im­prisonment. With respect to the conviction under s. 267(1)(a), the trial judge imposed a lifetime prohibition on the possession of any firearm, ammuni­tion or explosive substance pursuant to s. 100(1)(b) of the Code. The accused appealed from that part of the sen­tence imposing the prohibition order.

The Prince Edward Island Court of Appeal allowed the appeal in part. The court set aside the lifetime prohibition order imposed under s. 100(1)(b) and replaced it with a 10 year prohibition order pursuant to s. 100(1)(a).

Criminal Law - Topic 5606

Punishments (sentence) - Increased pun­ishment for prior convictions - [See Criminal Law - Topic 5799 ].

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms - The accused pleaded guilty to assault (Criminal Code, s. 266(a)) and was found guilty of threatening to use a weapon in the com­mission of an assault (s. 267(1)(a)) - He was sentenced to 20 months' impris­onment - With respect to the s. 267(1)(a) convic­tion, the trial judge imposed a life­time prohibition on the possession of any fire­arm, ammunition or explosive sub­stance pursuant to s. 100(1)(b) of the Code - The Prince Edward Island Court of Appeal set aside the lifetime prohibition order and replaced it with a 10 year pro­hibition order pursuant to s. 100(1)(a) - The imposition of a lifetime prohibition was not manda­tory because the Crown had not provided the requisite notice of its intention to seek greater punishment because of a previous conviction (s. 665(1)) and because the accused did not have previous convic­tions for offences of the type that would trigger the manda­tory operation of s. 100(1)(b).

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - An accused appealed from that part of his sentence which imposed a lifetime prohib­ition on the possession of any firearm, ammunition or explosive substance pursu­ant to s. 100(1)(b) of the Criminal Code - The accused submitted that the court should refer the matter back to the trial judge and that he should be given an opportunity to argue before the trial judge that the imposition of a prohibition order under s. 100(1) was neither appropriate nor necessary - The Prince Edward Island Court of Appeal declined to grant the relief sought, stating that pursuant to s. 687 of the Code its only power on an appeal from sentence was to vary the sentence or dismiss the appeal - See para­graph 12.

Cases Noticed:

R. v. Jobb (1988), 67 Sask.R. 315; 43 C.C.C.(3d) 476 (C.A.), refd to. [para. 8].

R. v. Ferguson (N.A.) (1995), 64 B.C.A.C. 211; 105 W.A.C. 211 (C.A.), refd to. [para. 8].

R. v. Austin (N.R.) (1996), 192 N.R. 393; 70 B.C.A.C. 312; 115 W.A.C. 312 (S.C.C.), reving. (1994), 50 B.C.A.C. 241; 82 W.A.C. 241; 94 C.C.C.(3d) 252 (C.A.), consd. [para. 15].

R. v. Wall (P.J.) (1995), 136 Nfld. & P.E.I.R. 200; 423 A.P.R. 200 (P.E.I.C.A.), refd to. [para. 21].

R. v. Lusignan (S.A.) (1993), 118 N.S.R.(2d) 91; 327 A.P.R. 91; 79 C.C.C.(3d) 572 (C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 100(1)(a) [para. 6]; sect. 100(1)(b) [para. 2]; sect. 100(1.1) [para. 3]; sect. 665(1) [para. 4]; sect. 687 [para. 12].

Counsel:

W. Kent Brown, Q.C., for the appellant;

Valerie A. Moore, for the respondent.

This appeal was heard on April 18, 1996, by Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A., of the Prince Edward Island Court of Appeal.

The following decision of the court was delivered by McQuaid, J.A., on May 21, 1996.