R. v. Kirklon (L.), 2015 SKCA 67

JudgeLane, Caldwell and Whitmore, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateMay 21, 2015
JurisdictionSaskatchewan
Citations2015 SKCA 67;(2015), 460 Sask.R. 233 (CA)

R. v. Kirklon (L.) (2015), 460 Sask.R. 233 (CA);

    639 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.046

Her Majesty the Queen (appellant) v. Leagh Kirklon (respondent)

(CACR2474; 2015 SKCA 67)

Indexed As: R. v. Kirklon (L.)

Saskatchewan Court of Appeal

Lane, Caldwell and Whitmore, JJ.A.

June 17, 2015.

Summary:

A trial judge convicted the accused of robbery (stealing drugs from a pharmacy while threatening violence). See [2014] Sask.R. Uned. 37.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 449 Sask.R. 79, sentenced the accused to six years' imprisonment before credit for remand time. Where there was no evidence to explain who, if anyone, was responsible for the almost 1.5 years that it took to bring the case to trial while the accused was incarcerated, the court credited him with a total of 650 days (1.2 days' credit for each day he served on remand), leaving four years and 80 days remaining on his six year sentence. The Crown appealed with leave.

The Saskatchewan Court of Appeal allowed the appeal and substituted an eight year sentence for the six years imposed by the trial judge.

Criminal Law - Topic 5835

Sentencing - Considerations on imposing sentence - Protection of the public - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused was convicted of robbery (stealing drugs from a pharmacy while threatening violence) - 43 years old - Métis - Lengthy criminal record - Most of his offences were motivated by the need for money to buy drugs or involved illegal drug activity - The trial judge found the accused to be seemingly incorrigible - He sentenced the accused to six years' imprisonment before credit for remand time - The Saskatchewan Court of Appeal increased the sentence to eight years before remand credit, holding that the trial judge failed to give adequate weight to protection of the public - The court did not intend to increase the established range of sentences for commercial robberies; rather, this was an exceptional case of a robbery committed on a vulnerable establishment by an incorrigible offender.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5855 ].

Cases Noticed:

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. 7 ].

R. v. Rudolph (B.J.) (2012), 410 Sask.R. 134; 2012 SKQB 442, refd to. [para. 8].

R. v. Castle (A.E.) et al. (2009), 345 Sask.R. 95; 2009 SKQB 407, refd to. [para. 8].

R. v. Warkentin (C.) (1994), 125 Sask.R. 236; 87 W.A.C. 236 (C.A.), refd to. [para. 15].

R. v. Severight (A.D.) (1996), 137 Sask.R. 306; 107 W.A.C. 306 (C.A.), refd to. [para. 15].

R. v. Sangwais (L.D.) (2000), 189 Sask.R. 291; 216 W.A.C. 291; 2000 SKCA 49, refd to. [para. 15].

R. v. Cappo (J.D.) (1994), 120 Sask.R. 309; 68 W.A.C. 309 (C.A.), refd to. [para. 15].

R. v. Edinborough (G.S.) (2010), 357 Sask.R. 68; 2010 SKQB 167, refd to. [para. 16].

R. v. Taniskishayinew (C.W.) (2013), 434 Sask.R. 67; 2013 SKQB 416, refd to. [para. 16].

R. v. Parisian, 1997 SKCA (SentDig) 32, refd to. [para. 16].

R. v. Nanapay (E.) (1997), 158 Sask.R. 188; 153 W.A.C. 188 (C.A.), refd to. [para. 16].

Counsel:

Beverly Klatt, for the appellant;

Estes Fonkalsrud, for the respondent.

This appeal was heard on May 21, 2015, by Lane, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Lane, J.A., delivered the following decision for the court on June 17, 2015.

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7 practice notes
  • Digest: R v J.P., 2018 SKQB 96
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 27, 2018
    ...v J.P., 2016 SKQB 392, 135 WCB (2d) 636 R v Keewatin, 2009 SKQB 58, 323 Sask R 150 R v Kirklon, 2014 SKQB 178, 449 Sask R 79 R v Kirklon, 2015 SKCA 67, 460 Sask R 233 R v Lawson, 2012 BCCA 508, 331 BCAC 123, [2013] 1 CNLR 306, 294 CCC (3d) 369 R v Moise, 2015 SKCA 39, 322 CCC (3d) 400 R v R......
  • Digest: R v J.P., 2018 SKQB 96
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 18, 2019
    ...v J.P., 2016 SKQB 392, 135 WCB (2d) 636 R v Keewatin, 2009 SKQB 58, 323 Sask R 150 R v Kirklon, 2014 SKQB 178, 449 Sask R 79 R v Kirklon, 2015 SKCA 67, 460 Sask R 233 R v Lawson, 2012 BCCA 508, 331 BCAC 123, [2013] 1 CNLR 306, 294 CCC (3d) 369 R v Moise, 2015 SKCA 39, 322 CCC (3d) 400 R v R......
  • R. v. J.P., 2018 SKQB 96
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 27, 2018
    ...95 [Castle] and R v Rudolph, 2012 SKQB 442, 410 Sask R 134 [Rudolph], and the decision of the Saskatchewan Court of Appeal in R v Kirklon, 2015 SKCA 67, 460 Sask R 233 varying 2014 SKQB 178, 449 Sask R 79 [Kirklon]. [57] In Castle, the 29-year-old offender entered guilty pleas to two counts......
  • Johnson v. R.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • January 29, 2021
    ...(1996), 137 Sask R 306 (CA); R v Sangwais, 2000 SKCA 49, 189 Sask R 291; R v Warkentin (1994), 125 Sask R 236 (CA); and R v Kirklon, 2015 SKCA 67, 460 Sask R 233). In fact, in Gordon, this Court suggested that because of the danger to life and safety inherent in the offence of robbery and t......
  • Request a trial to view additional results
5 cases
  • R. v. J.P., 2018 SKQB 96
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 27, 2018
    ...95 [Castle] and R v Rudolph, 2012 SKQB 442, 410 Sask R 134 [Rudolph], and the decision of the Saskatchewan Court of Appeal in R v Kirklon, 2015 SKCA 67, 460 Sask R 233 varying 2014 SKQB 178, 449 Sask R 79 [Kirklon]. [57] In Castle, the 29-year-old offender entered guilty pleas to two counts......
  • Johnson v. R.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • January 29, 2021
    ...(1996), 137 Sask R 306 (CA); R v Sangwais, 2000 SKCA 49, 189 Sask R 291; R v Warkentin (1994), 125 Sask R 236 (CA); and R v Kirklon, 2015 SKCA 67, 460 Sask R 233). In fact, in Gordon, this Court suggested that because of the danger to life and safety inherent in the offence of robbery and t......
  • R v Charles,
    • Canada
    • Court of Appeal (Saskatchewan)
    • August 30, 2021
    ...(1996), 137 Sask R 306 (CA); R v Sangwais, 2000 SKCA 49, 189 Sask R 291; R v Warkentin (1994), 125 Sask R 236 (CA); and R v Kirklon, 2015 SKCA 67, 460 Sask R 233). In fact, in Gordon, this Court suggested that because of the danger to life and safety inherent in the offence of robbery and t......
  • R. v. Kaiswatum (C.B.), 2015 SKQB 404
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • December 18, 2015
    ...the appropriate sentence to impose, I also reviewed the following cases on robbery which were not cited by counsel: (a) R v Kirklon , 2015 SKCA 67. This was a robbery case where the sentence was determined to be eight years. The accused had a remarkably bad prior criminal record. Notable is......
  • Request a trial to view additional results
2 books & journal articles
  • Digest: R v J.P., 2018 SKQB 96
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 27, 2018
    ...v J.P., 2016 SKQB 392, 135 WCB (2d) 636 R v Keewatin, 2009 SKQB 58, 323 Sask R 150 R v Kirklon, 2014 SKQB 178, 449 Sask R 79 R v Kirklon, 2015 SKCA 67, 460 Sask R 233 R v Lawson, 2012 BCCA 508, 331 BCAC 123, [2013] 1 CNLR 306, 294 CCC (3d) 369 R v Moise, 2015 SKCA 39, 322 CCC (3d) 400 R v R......
  • Digest: R v J.P., 2018 SKQB 96
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 18, 2019
    ...v J.P., 2016 SKQB 392, 135 WCB (2d) 636 R v Keewatin, 2009 SKQB 58, 323 Sask R 150 R v Kirklon, 2014 SKQB 178, 449 Sask R 79 R v Kirklon, 2015 SKCA 67, 460 Sask R 233 R v Lawson, 2012 BCCA 508, 331 BCAC 123, [2013] 1 CNLR 306, 294 CCC (3d) 369 R v Moise, 2015 SKCA 39, 322 CCC (3d) 400 R v R......

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