R. v. L.W.T., (2008) 307 Sask.R. 246 (CA)

• Judge: Jackson, Richards and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 18, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 307 Sask.R. 246 (CA);2008 SKCA 17

R. v. L.W.T. (2008), 307 Sask.R. 246 (CA);

      417 W.A.C. 246

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. FE.003

L.W.T. (appellant) v. Her Majesty the Queen (respondent)

(No. 1374; 2008 SKCA 17)

Indexed As: R. v. L.W.T.

Saskatchewan Court of Appeal

Jackson, Richards and Wilkinson, JJ.A.

February 7, 2008.

Summary:

The accused was convicted of three counts of sexual assault and sentenced to 18 months' imprisonment, to be followed by 18 months' probation. He appealed his conviction and sentence.

The Saskatchewan Court of Appeal dismissed the conviction and sentence appeals.

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.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - The accused was convicted of three counts of sexual assault against three victims (including E.F.) in unrelated incidents - The victims were all teenagers and many years younger than the accused - On appeal, the accused argued that his s. 11(h) Charter right against double jeopardy had been violated because he had been convicted in Provincial Court of giving alcohol to minors contrary to s. 110(1) of the Alcohol and Gaming Regulation Act and fined $1,500 - The offence arose from "the same evening at the same location" as the incident involving E.F. - Thus, he argued, s. 11(h) of the Charter meant that the fact that he gave alcohol to E.F. could not be considered as an aggravating factor in relation to the charge involving E.F. - The Saskatchewan Court of Appeal held that s. 11(h) did not apply - Section 11(h) proscribed multiple punishments for the same offence - There was no double punishment here because serving liquor to a minor and sexual assault were two entirely different matters - Moreover, even in the context of the assault charge, the accused's provision of alcohol to E.F. was aggravating, not because E.F. was a minor, but because it was an attempt to make E.F. more vulnerable - See paragraphs 46 to 48.

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where accused denied right to be present during whole of trial - The accused was charged with three counts of sexual assault - The accused's counsel provided oral notice that he was considering an application to sever the charges - The pretrial justice urged the accused's counsel to bring the application before the scheduled trial date - The accused's counsel made a motion for a severance returnable on the first day of trial - A pre-trial conference was conducted by telephone conference call a few days before trial - The trial judge ruled against the accused's application - The accused's counsel participated in the call, but the accused himself was not on the line - On appeal from his conviction, the accused submitted that the trial judge lost jurisdiction because the accused was not present when the severance motion was heard - The Saskatchewan Court of Appeal rejected the submission - The accused was not personally prejudiced by the fact that he was not present for the severance application - Although there was a failure to comply with s. 650(1) of the Criminal Code (accused to be present for the whole of his trial), that failure did not negatively affect the administration of justice to an extent warranting the court's refusal to exercise its authority under s. 686(1)(b)(iv) of the Code - See paragraphs 19 to 33.

Criminal Law - Topic 5720.4

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

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was convicted of three counts of sexual assault (grabbing/fondling) against three victims in three unrelated incidents - The victims were all teenagers and many years younger than the accused - The accused had plied two of the victims with alcohol - The third victim was intoxicated - The accused used considerable force against him and was undeterred by his resistance - The accused had no criminal record and assisted his elderly mother and handicapped older brother - The trial judge imposed a sentence of 18 months' imprisonment, to be followed by 18 months' probation - The accused appealed, submitting, inter alia, that the trial judge erred in not imposing a conditional sentence - The Saskatchewan Court of Appeal dismissed the appeal - See paragraphs 39 to 45.

Cases Noticed:

R. v. Hertrich (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 23].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 24].

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 24].

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69, refd to. [para. 26].

R. v. Cloutier (1988), 27 O.A.C. 246; 43 C.C.C.(3d) 35 (C.A.), refd to. [para. 27].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 27].

R. v. Laws (D.) (1998), 112 O.A.C. 353; 41 O.R.(3d) 499 (C.A.), refd to. [para. 28].

R. v. Mohebtash (M.) (2007), 243 B.C.A.C. 70; 401 W.A.C. 70; 220 C.C.C.(3d) 244; 2007 BCCA 307, refd to. [para. 28].

R. v. Ferguson (M.E.) (2006), 384 A.R. 318; 367 W.A.C. 318; 207 C.C.C.(3d) 157; 2006 ABCA 36, refd to. [para. 28].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 35].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 35].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 35].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 36].

White v. R., [1947] S.C.R. 268, refd to. [para. 37].

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; 2000 SCC 5, refd to. [para. 41].

R. v. M.J.H. (2004), 257 Sask.R. 1; 342 W.A.C. 1; 2004 SKCA 171, refd to. [para. 41].

R. v. Bird (S.D.) (1992), 105 Sask.R. 161; 32 W.A.C. 161 (C.A.), refd to. [para. 42].

R. v. Cappo (T.) (1993), 116 Sask.R. 15; 59 W.A.C. 15 (C.A.), refd to. [para. 42].

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. 45].

Counsel:

Dhugal Whitbread, for the appellant;

Lane Wiegers, for the Crown.

This appeal was heard on January 18, 2008, by Jackson, Richards and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. Richards, J.A., delivered the following decision for the court on February 7, 2008.