R. v. Laliberte (M.R.),

• Jurisdiction: Saskatchewan
• Judge: Cameron, Vancise and Jackson, JJ.A.
• Neutral Citation: 2000 SKCA 27
• Court: Court of Appeal (Saskatchewan)
• Date: 28 February 2000
• Citation: (2000), 189 Sask.R. 190 (CA),2000 SKCA 27,[2000] 4 WWR 491,143 CCC (3d) 503,31 CR (5th) 1,[2000] CarswellSask 132,[2000] SJ No 138 (QL),189 Sask R 190,216 WAC 190,[2000] S.J. No 138 (QL),189 SaskR 190,189 Sask.R. 190,(2000), 189 SaskR 190 (CA),216 W.A.C. 190

R. v. Laliberte (M.R.) (2000), 189 Sask.R. 190 (CA);

    216 W.A.C. 190

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. MR.047

Her Majesty The Queen (appellant) v. Monica Rose Laliberte (respondent)

(No. 7748; 2000 SKCA 27)

Indexed As: R. v. Laliberte (M.R.)

Saskatchewan Court of Appeal

Cameron, Vancise and Jackson, JJ.A.

February 28, 2000.

Summary:

The accused pleaded guilty to two counts of trafficking in a controlled substance (dil­audid) and two counts of possession of the proceeds of the crime of trafficking. She was sentenced to a conditional sentence of 12 months, which included four months of electronically monitored house arrest, plus two years of probation and restitution of $120. The Crown applied for leave to appeal the conditional sentence.

The Saskatchewan Court of Appeal granted leave to appeal and dismissed the appeal. Cameron, J.A., dissenting in part, would have denied leave to appeal, but concurred in the decision that the appeal should be dis­missed.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - The Saskatchewan Court of Appeal stated that "[t]he imposi­tion of a conditional sentence must be approached in a principled way to ensure the sanction is used as a clear alternative to incarceration and not merely as a sub­stitute for community-based sanctions such as fines, probation, community ser­vice and absolute and conditional dis­charges. To do otherwise will result in net widening which occurs when an offender who would other­wise have received a community-based sanction is sentenced to a conditional sen­tence of imprisonment" - See paragraph 21.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - The Saskatchewan Court of Appeal discussed the two stage approach set out by the Supreme Court of Canada for determining whether a condi­tional sentence should be imposed - See paragraphs 22 to 31.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - [See Criminal Law - Topic 5848.7 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The Saskatchewan Court of Appeal stated that "s. 742.1 [of the Criminal Code] does not restrict the use of a conditional sen­tence of imprisonment to a particular class of offences ... a conditional sentence is available for all offences in which the statutory prerequisites are satisfied ... a conditional sentence of imprisonment should not be restricted to minor offences or property offences. The sentence should be used in appropriate circumstances for all offences including drug offences and offences against the person. This is always subject to the qualification that the statu­tory prerequisites have been satisfied and that ordering the offender to serve the sentence in the community will not put the collectivity at risk and in danger. The type of offence or the gravity of the offence should not determine whether a conditional sentence of imprisonment is available" - See paragraphs 32 to 33.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See second Criminal Law - Topic 5720.1 and Criminal Law - Topic 5850 ].

Criminal Law - Topic 5720.5

Punishments (sentence) - Conditional sentence - Conditions of - [See Criminal Law - Topic 5848.7 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The Saskatchewan Court of Appeal stated that Part XXIII of the Crim­i­nal Code, and in particular, ss. 718 to 718.2 and s. 742.1, created a new sentenc­ing regime and appellate courts were required to re-examine the appropriateness of sentences imposed prior to the enact­ment of the new provisions (September 3, 1996) - This was necessary for the pur­pose of determining whether there was disparity in sentences imposed subsequent to Sep­tember 3, 1996 - The court stated "[t]hose sentences decided before the amendments to Part XXIII can no longer be regarded as establishing immutable sentencing prin­ciples or ranges against which sentences decided after the changes came into effect must be measured. They must be examined having regard to the 'new sentencing re­gime' and the restorative paradigm adopted by Parliament as inter­preted by the Supreme Court [of Canada]" - See para­graphs 74 and 82.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The Saskatchewan Court of Appeal stated that "[t]he principle of dis­parity in sentences should be applied only after the reviewing court has applied all the other principles of sentencing. It is only after giving full effect to the prin­ciples of sentencing within the current constraints governing appellate review that if a reviewing court is unable to rationalize the sentence with sentences for similar offences committed in similar circum­stances, it must either increase or decrease the sentence. The court intervenes at this stage to achieve a rational relationship with other sentences imposed in similar circum­stances for similarly situated offenders" - See paragraph 75.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See first Criminal Law - Topic 5720.4 and Criminal Law - Topic 5833 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - The Crown appealed from a conditional sentence imposed on an accused for trafficking in a controlled substance - The Crown argued that denunciation and deterrence were the two most important factors in sentencing persons who traffic in drugs and that the trial judge underemphasized those factors and overemphasized the factor of reha­bili­tation - The Saskatchewan Court of Appeal stated that "s. 718 [of the Criminal Code] does not establish a hierarchy of sentencing factors or principles. All the factors must be considered in arriving at a fit and ap­propriate sentence. In the absence of a directive in the statute itself there is no reason why deterrence and denunciation should be overemphasized in a particular class or classes of cases. This is particu­lar­ly so when one considers the doubtful effectiveness of deterrence in reducing and controlling crime" - See paragraph 99.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Saskatchewan Court of Appeal discussed the principles to be applied in the sentenc­ing of aboriginal offenders pursuant to s. 718.2(e) of the Criminal Code in light of the Supreme Court of Canada's decision in R. v. Gladue (J.T.) - See paragraphs 44 to 70.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - Section 718.2(e) of the Criminal Code required a sentencing judge to examine the unique systemic or background circumstances of aboriginal offenders - The Saskatchewan Court of Appeal held that a sentencing judge could not take judicial notice of systemic or background factors of aborig­inal offenders and that evidence would be required to establish the systemic factors as well as to demonstrate how those fac­tors contributed to the offender being before the court and how those factors should influence the type of sentence to be imposed on the particular aboriginal offender - The court stated "[i]t will be necessary for the accused to call some evidence to assist the sentencing judge in determining whether, in the particular community where the offender resides, there are systemic or other background factors which have had an influence on how this particular offender came before the court" - See paragraph 69.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See first Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - The Saskatchewan Court of Appeal stated that "[t]he principle of de­nunciation, which is the communication of society's condemnation of the offender's conduct, can be achieved without a cus­tod­ial sentence. Incarceration will provide more denunciation than a conditional sen­tence of imprisonment but a conditional sentence which deprives or restricts an offender's liberty such as electronically monitored house arrest or a curfew can effectively satisfy those principles. The Chief Justice [Lamer, C.J.C.] made it clear that this is particularly true when the con­ditions restricting an offender's liberty are punitive and his liberty is severely restricted. Severe restrictions on the offenders liberty are to be the norm and not the exception" - See paragraph 35.

Criminal Law - Topic 5850

Sentence - Trafficking in a controlled drug or substance - The accused aboriginal pleaded guilty to two counts of trafficking in a controlled substance and two counts of possession of the proceeds of the crime of trafficking - She sold a total of 13 tablets of dilaudid to an undercover agent for $120 - 18 years old - No related criminal record - At the time of sentenc­ing, the accused had begun drug and alco­hol treat­ment - The trial judge imposed a 12 month conditional sentence, which included four months of electronically monitored house arrest, plus two years of probation and restitution of $120 - The Crown applied for leave to appeal the conditional sentence - The Saskatchewan Court of Appeal granted leave to appeal and dismissed the appeal - The conditional sentence, together with the probation order, was consistent with the principles of sen­tencing enunci­ated in ss. 718 to 718.2 of the Criminal Code - See paragraphs 83 to 104.

Criminal Law - Topic 5972

Sentence - Possession of proceeds of crime - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - The Saskatchewan Court of Appeal discussed the standard of appellate review in sen­tenc­ing matters - See paragraphs 9 to 14 and 123 to 130.

Criminal Law - Topic 6210

Sentencing - Appeals - Variation of sen­tence - Application for leave to appeal - Burden on party seeking leave - [See Criminal Law - Topic 6211 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sen­tence - Application for leave to appeal - Grounds - The Saskatchewan Court of Appeal stated that "[l]ittle is written in Canada about the considerations that lead a Court of Appeal to grant or refuse leave to appeal a sentence under ss. 675(1)(b) or 676(1)(a) of the Criminal Code. Nonethe­less, to say that this court only grants leave if it intends to intervene restricts too nar­rowly our role in these matters" - The court further stated "a Court of Appeal has the authority to grant leave not only when there is an arguable case for intervention but also to settle an issue of significance either in practice or law. The onus on counsel seeking leave is to demonstrate a case of sufficient merit and importance to warrant intervention or review" - See paragraphs 116 to 119.

Criminal Law - Topic 6215

Sentencing - Appeals - Variation of sen­tence - Considerations - General - [See second Criminal Law - Topic 5806.1 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See second Criminal Law - Topic 5846.1 ].

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; 133 C.C.C.(3d) 385, consd. [para. 5, footnote 3].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161 (S.C.C.), consd. [para. 5, footnote 4].

R. v. Morrissette (1971), 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 9, footnote 6].

R. v. Wenarchuk (1982), 15 Sask.R. 240 (C.A.), refd to. [para. 9, footnote 7].

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; 102 C.C.C.(3d) 193; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269, refd to. [para. 9, footnote 8].

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; 105 C.C.C.(3d) 327, consd. [para. 9, footnote 9].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 9, footnote 10].

R. v. Horvath (B.A.) (1997), 152 Sask.R. 277; 140 W.A.C. 277 (C.A.), refd to. [para. 13, footnote 14].

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. 15, footnote 16].

R. v. Maheu, [1997] R.J.Q. 410; 116 C.C.C.(3d) 361 (Que. C.A.), refd to. [para. 27, footnote 30].

R. v. Proulx (J.D.K.) (1997), 123 Man.R.(2d) 107; 159 W.A.C. 107; 121 C.C.C.(3d) 68 (C.A.), refd to. [para. 32].

R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115; 481 A.P.R. 115; 119 C.C.C.(3d) 97 (Nfld. C.A.), refd to. [para. 32, footnote 32].

R. v. R.A.R. (1997), 123 Man.R.(2d) 91; 159 W.A.C. 91; 125 C.C.C.(3d) 558 (C.A.), refd to. [para. 32, footnote 32].

R. v. Gagnon (1998), 130 C.C.C.(3d) 194 (Que. C.A.), refd to. [para. 32, footnote 32].

R. v. Parker (R.D.R.) (1997), 159 N.S.R.(2d) 166; 468 A.P.R. 166; 116 C.C.C.(3d) 236 (C.A.), refd to. [para. 32, footnote 32].

R. v. Ursel (D.A.) et al. (1997), 96 B.C.A.C. 241; 155 W.A.C. 241; 117 C.C.C.(3d) 289 (C.A.), refd to. [para. 32, footnote 32].

R. v. J.W. (1997), 99 O.A.C. 161; 115 C.C.C.(3d) 18 (C.A.), refd to. [para. 32, footnote 32].

R. v. Wellington (S.) (1999), 117 O.A.C. 283; 132 C.C.C.(3d) 470 (C.A.), refd to. [para. 32, footnote 32].

R. v. D.J.J. (1999), 172 Sask.R. 182; 185 W.A.C. 182 (C.A.), refd to. [para. 32, footnote 32].

R. v. McLeod (R.G.) (1993), 109 Sask.R. 8; 42 W.A.C. 8; 81 C.C.C.(3d) 83 (C.A.), refd to. [para. 34, footnote 34].

R. v. McGinn (1989), 75 Sask.R. 161 (C.A.), refd to. [para. 38, footnote 40].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1; [1999] 4 W.W.R. 711, refd to. [para. 63, footnote 64].

R. v. Fleury (D.A.), [1999] 3 W.W.R. 62; 169 Sask.R. 161 (Q.B.), refd to. [para. 64, footnote 64].

R. v. Carratt (L.D.) (1999), 185 Sask.R. 221 (Q.B.), refd to. [para. 66, footnote 67].

R. v. Van de Wiele (A.), [1997] 3 W.W.R. 477; 152 Sask.R. 65; 140 W.A.C. 65 (C.A.), refd to. [para. 77, footnote 72].

R. v. Taylor (W.B.) (1997), 163 Sask.R. 29; 165 W.A.C. 29; 122 C.C.C.(3d) 376 (C.A.), refd to. [para. 79, footnote 75].

R. v. Krett (1989), 74 Sask.R. 58 (C.A.), refd to. [para. 97, footnote 81].

R. v. Ruda (1992), 100 Sask.R. 159; 18 W.A.C. 159 (C.A.), refd to. [para. 97, footnote 82].

R. v. Debrowney (1992), 97 Sask.R. 262; 12 W.A.C. 262 (C.A.), refd to. [para. 97, footnote 83].

R. v. Faubert (V.) (1997), 152 Sask.R. 228; 140 W.A.C. 228 (C.A.), refd to. [para. 97, footnote 84].

R. v. Neufield (J.R.) (1999), 180 Sask.R. 96; 205 W.A.C. 96 (C.A.), refd to. [para. 97, footnote 85].

R. v. Englesman (C.G.) (1999), 180 Sask.R. 108; 205 W.A.C. 108 (C.A.), refd to. [para. 97, footnote 86].

R. v. Brown (A.K.) (1997), 155 Nfld. & P.E.I.R. 188; 481 A.P.R. 188; 119 C.C.C.(3d) 147 (Nfld. C.A.), refd to. [para. 101, footnote 88].

R. v. Boreen (P.) (1997), 152 Sask.R. 153; 140 W.A.C. 153 (C.A.), refd to. [para. 106, footnote 92].

R. v. L.F.W. (2000), 249 N.R. 345; 185 Nfld. & P.E.I.R. 1; 562 A.P.R. 1 (S.C.C.), refd to. [para. 117].

R. v. R.N.S. (2000), 249 N.R. 365; 132 B.C.A.C. 1; 215 B.C.A.C. 1 (S.C.C.), refd to. [para. 117].

R. v. R.A.R. (2000), 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282 (S.C.C.), refd to. [para. 117].

R. v. Bunn (T.A.) (2000), 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256 (S.C.C.), refd to. [para. 117].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 687(1), sect. 718, sect. 718.1, sect. 718.2, sect. 742.1 [para. 8].

Authors and Works Noticed:

Canada, Sentencing (February 1984), p. 32 [para. 17, footnote 21].

Canadian Sentencing Digest, generally [para. 118].

Doob, Anthony, Community Sanctions and Imprisonment: Hoping for a Miracle but not Bothering Even to Pray For it (1990), 32 Can. J. Crim. 415, pp. 424, 425 [para. 51, footnote 55].

Manitoba Public Inquiry into the Adminis­tration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol. 1 [para. 62, footnote 62].

Manitoba Public Inquiry into the Adminis­tration of Justice and Aboriginal People, The Justice System and Aboriginal People (1991), vol. 1 [para. 62, footnote 62].

Manson, Finding a Place for Conditional Sentences (1997), 3 C.R.(5th) 283, pp. 292, 293 [para. 36, footnotes 38, 39].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan, W., The Law of Evidence in Canada (2nd Ed. 1999), p. 1055 [para. 61, footnote 61].

Turpel-Lafond, M.E., Sentencing Within a Restorative Justice Paradigm: Procedural Implications of R. v. Gladue (1999), 43 C.L.Q. 34, generally [para. 50, footnote 59].

Van Ness, D., Pursuing a Restorative Vision of Justice (MCC Canada/U.S. February 1989), pp. 1 to 30 [para. 48, footnote 48].

Young, Allan, The Role of an Appellate Court in Developing Sentencing Guidelines (1984), p. 97 [para. 51, foot­note 55].

Zerr, H., Changing Lenses: A New Focus for Crime and Justice (1990), generally [para. 48, footnote 48].

Counsel:

Wade McBride, for the appellant;

Dave Armstrong, for the respondent.

This appeal was heard on August 12, 1999, before Cameron, Vancise and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

On February 28, 2000, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Vancise, J.A. - see paragraphs 1 to 115;

Jackson, J.A. - see paragraphs 116 to 131;

Cameron, J.A., dissenting in part - see paragraphs 132 to 152.