R. v. Labelle (B.),

• Judge: Conrad,McFadyen,Sulatycky
• Neutral Citation: 2002 ABCA 44
• Citation: (2002), 299 A.R. 78 (CA),2002 ABCA 44,299 AR 78,(2002), 299 AR 78 (CA),299 A.R. 78
• Date: 20 February 2002
• Court: Court of Appeal (Alberta)

R. v. Labelle (B.) (2002), 299 A.R. 78 (CA);

    266 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.118

Her Majesty the Queen (appellant) v. Baret Labelle (respondent)

(99-18500; 2002 ABCA 44)

Indexed As: R. v. Labelle (B.)

Alberta Court of Appeal

Conrad and McFadyen, JJ.A., and Sulatycky, A.C.J.Q.B.

February 20, 2002.

Summary:

The accused pleaded guilty to aggravated assault. The sentencing judge imposed a suspended sentence and two years' probation. The Crown appealed.

The Alberta Court of Appeal dismissed the appeal. Although the sentence was demonstrably unfit, the court declined to revisit the sentence in the circumstances.

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - The 18 year old aboriginal accused and two others agreed to "shake down" vehicles at a campground - One of the others was the prime motivator - All three were armed - The accused had a wrench - The 56 year old victim was beaten and severely injured - He became unable to fully function or work - The accused threw the wrench at the victim striking him in the neck - Apparent racial overtones to the attack - The accused pleaded guilty to aggravated assault - Remorseful - The sentencing judge imposed a suspended sentence and two years' probation - The Alberta Court of Appeal held, inter alia, that the sentence was demonstrably unfit - It failed to meaningfully address the punitive aspect of sentencing - It ignored the need for deterrence and denunciation - Imprisonment would generally be required - However, the court declined to revisit the sentence given the accused's tragic personal circumstances, age, family obligations and role and that the sentence had been served without breach and with progress - See paragraphs 60 to 77.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The Alberta Court of Appeal declined to set firm guidelines for sentencing circles - The court stated that "It is preferable that the laws relating to this sentencing tool develop incrementally and, in our view, the trial courts are the appropriate forum for this process to mature" - See paragraph 3.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The Alberta Court of Appeal stated that "The sentencing circle process is aimed at restorative justice and preventing recidivism. It provides for community and victim input into decisions. Although originally utilized in aboriginal settings, in appropriate circumstances a sentencing circle approach could be adapted to other community settings. In theory, a circle sentence results from the negotiation of interested groups and produces a sentence that the community endorses. The sentencing judge must endorse any negotiated sentence and is obligated to ensure that the sentence is fit and complies with the sentencing provisions of the Criminal Code. Thus, the judge must agree to the process and, in the end, approve, reject, or amend any proposed sentence." - See paragraphs 23 and 24.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The aboriginal accused pleaded guilty to aggravated assault - The sentencing judge proceeded by way of a sentencing circle, without giving the Crown the opportunity to read the facts - Therefore, the accused's precise involvement was not established before the circle hearing - The sentencing judge's comments during the hearing respecting the accused's involvement contradicted those contained in his written reasons - The Alberta Court of Appeal held that the sentencing judge erred by refusing to resolve disputed facts prior to the circle hearing - Facts should be established before a circle hearing, either by admission or by proof in the ordinary course - Those facts should be presented to the circle - The circle was not the appropriate forum in which to prove disputed facts - Where a disputed fact arose mid-process, that fact had to be established - One option was for the court to break out from the circle and resume a traditional court process - But for the agreed facts provided on appeal, the matter would have been returned for a rehearing - See paragraphs 31 to 45.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The Alberta Court of Appeal stated that the composition of a sentencing circle might vary depending on the offence, the community services available, whether the community was urban or rural and the nature of the offence - Normally both the offender and the victim agree to participate - If a case proceeds without a victim, a victim's interest should still be represented by the Crown or some other representative that might wish to be heard - As the sentencing circle generally involved releasing the offender into the community, it might be important to involve respected members of that non-political community - The community had a considerable stake in any sentence imposed as it was interested in safety, awareness of the offence, participation, use of resources and the support and supervision of any sentence - Sentencing judges had broad discretion to decide on the information they required and received for sentencing purposes, therefore, the court refused to restrict those allowed to speak - See paragraphs 46 to 57.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - The aboriginal accused pleaded guilty to aggravated assault - The sentencing judge proceeded by way of a sentencing circle - The Alberta Court of Appeal discussed problems with the composition of the circle - Although the sentencing judge indicated that he would invite community elders, no independent community members were present - The circle included the accused, his common-law wife, his counsel, his two grandparents, two Crown counsel, the victim who had suffered a stroke with resulting memory loss and other disabilities, the investigating officer, the probation officer and the judge - The victim's wife was not present, although she too was a victim, as she was left with the responsibility for providing for the family - No one appeared to have been designated to explain to the victim his role and rights - Considering his condition, it would have been helpful if he had more support - See paragraphs 46 to 57.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5704 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5704 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 5704 ].

Cases Noticed:

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. [paras. 4, 78].

R. v. Moses (1992), 71 C.C.C.(3d) 347; 11 C.R.(4th) 357 (Yuk. Terr. Ct.), refd to. [para. 22].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120; 101 C.C.C.(3d) 124 (C.A.), refd to. [para. 22].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 25].

R. v. Johnson (G.) (1995), 48 B.C.A.C. 93; 78 W.A.C. 93 (Yuk. C.A.), refd to. [para. 26].

R. v. Johns (J.C.) (1995), 66 B.C.A.C. 97; 108 W.A.C. 97 (C.A.), refd to. [para. 27].

R. v. Manyfingers (C.J.) (1996), 191 A.R. 342 (Prov. Ct.), refd to. [para. 28].

R. v. Joseyounen, [1995] 6 W.W.R. 438 (Sask. Prov. Ct.), refd to. [para. 39].

R. v. Papequash (1987), 55 C.R.(3d) 398 (Sask. 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. 58].

R. v. Wells (J.W.) (2000), 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 141 C.C.C.(3d) 368 (S.C.C.), refd to. [para. 66].

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. 67].

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. 70].

R. v. McDonald (D.P.) (1997), 152 Sask.R. 81; 140 W.A.C. 81; 113 C.C.C.(3d) 418 (C.A.), refd to. [para. 71].

Authors and Works Noticed:

Benevides, H.J., R. v. Moses and Sentence Circles: A Case Comment (1994), 3 Dal. J. Leg. Studies 241, generally [para. 22].

Groh, T., Sentencing Circle: a General Overview and Guidelines, Justice as Healing (1998), 3:3, generally [para. 22].

Mansfield, E., Balance and Harmony: Peacemaking in Coast Salish Tribes of the Pacific Northwest (1993), 10:4 Mediation Quarterly 339, generally [para. 22].

Roberts, J.V., & LaPrairie, C., Sentencing Circles: Some Unanswered Questions (1997), 39 C.L.Q. 69, pp. 71, 72 [para. 22].

Stuart, B., Building Community Justice Partnerships: Community Peacemaking Circles (1997), p. 33 [para. 22].

United Nations, Commission on Crime Prevention and Criminal Justice (2000), ESC Res. UN ESCOR (9th Sess.), generally [para. 29].

Counsel:

G. Tomljanovic and R. Savage, for the appellant;

A. Hepner, Q.C., for the respondent.

This appeal was heard before Conrad and McFadyen, JJ., and Sulatycky, A.C.J.Q.B., of the Alberta Court of Appeal. On February 20, 2002, the following memorandum of judgment was delivered and the following opinions were filed:

Conrad, J.A. (Sulatycky, A.C.J.Q.B., concurring) - see paragraphs 1 to 77;

McFadyen, J.A. - see paragraphs 78 to 80.