R. v. Laliberte (R.), 2011 SKQB 263

• Judge: Wilkinson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 07, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 263;(2011), 376 Sask.R. 116 (QB)

R. v. Laliberte (R.) (2011), 376 Sask.R. 116 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.040

Her Majesty the Queen v. Roland Laliberte

(2009 C.N.J. No. 76; 2011 SKQB 263)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Wilkinson, J.

July 7, 2011.

Summary:

The accused was convicted of sexual assault. He also pleaded guilty to five breaches of a condition and failing to appear in court for his trial in the within matter.

The Saskatchewan Court of Queen's Bench imposed a total sentence of 5.5 years' imprisonment. The court gave the accused 24 months' credit for pre-sentence detention relative to the sexual assault conviction, and four months, three weeks' credit on the remaining offences. As a result, the time left to be served was three years, one month and one week.

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.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The 61 year old accused was convicted of sexual assault - The Saskatchewan Court of Queen's Bench stated that regarding the accused's pretrial detention on that charge, there was no evidence that he received the benefit of any programming while on remand - Similarly, there was no evidence that he had received programs or treatment in the past, but failed to benefit from them - However, the reasons he was detained in custody were his record of disregarding court orders, including two prior convictions for failing to attend court, albeit dated, and his failure to follow community release plans in the past, including four breaches of probation, and two breaches of recognizance - As well, the danger to the public was a consideration, given his history of aggressive behaviour and his convictions for assault, sexual interference and sexual assault - Accordingly, the court allowed the accused 24 months' credit (roughly 1.5:1) for his time on remand between April 2009 and July 2010, having regard to the reasons for his detention - See paragraphs 46 to 52.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The 61 year old accused was convicted of sexual assault - He also pleaded guilty to five breaches of a condition (Criminal Code, s. 145(3)) and failing to appear in court for this trial (s. 145(2)(b)) - The accused was charged with sexual assault before the passage of the Truth in Sentencing Act, the other offences after - The Saskatchewan Court of Queen's Bench allowed a roughly 1.5:1 credit for time served by the accused on the sexual assault charge (between April 2009 and July 2010) and a 1:1 credit to the time served for the other offences (February 17, 2011 to the present) - The court stated that "In R. v. Sabourin, supra, the Court of Appeal for the Northwest Territories emphasized that care and circumspection are necessary to ensure that duplication of punishment does not arise by virtue of withholding credit for time spent in pre-sentence detention. It is material to consider whether the detention related to pre-offence or post-offence conduct, whether the detention related to a breach of recognizance on the index offence (in this case, the sexual assault), and whether the offender is being sentenced for breach of recognizance in addition to the index offence. If the reason for detention relates to post-offence conduct by the offender that does not form part of the index offence and is subject to independent charge and prosecution (i.e. a breach of recognizance), that conduct should not be used to reduce the pre-sentence custody credit on the index offence, or as an aggravating factor in the main offence. As I have imposed a consecutive sentence on the defendant for his failure to attend Court and breaches of undertaking, I will allow credit on a one for one basis with respect to the detention for the period February 17, 2011 to the present (four months, three weeks' credit)." - See paragraphs 53 to 55.

Criminal Law - Topic 5892

Sentence - Breach of a restraining order, recognizance or undertaking - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5921

Sentence - Being at large or failing to appear - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 61 year old accused was convicted of sexual assault - He also pleaded guilty to five breaches of a condition (Criminal Code, s. 145(3)) and failing to appear in court for his trial (s. 145(2)(b)) - The accused invited the complainant to his home for drinks - He assured her that she was in no danger, but later demanded oral sex from her - When she refused, he forced her into the bedroom, causing significant bruising - He held her down and fondled her, followed quickly by digital penetration, and an attempt at vaginal intercourse, which failed - He then tried to force oral sex - When the complainant managed to leave the bedroom, the accused swore at her loudly and belligerently as she telephoned her son to come and get her - Sixty prior criminal convictions; two for serious sexual assaults - Period of law abiding conduct from 1998 to 2009, when he succeeded in abstaining from alcohol, and focused on his marriage and family obligations - Completed two years of probation imposed by the 1998 sentence without incident - The Saskatchewan Court of Queen's Bench imposed a five year sentence for the sexual assault and, for the failure to attend court and each of the five breaches of condition, sentences of six months on each count, concurrent to each other, but consecutive to any other sentence - The failure to appear for trial was a flagrant and deliberate evasion - The accused denied his identity to the officers who came to arrest him and tried to physically bar their entry - As to the s. 145(3) offences, the breach of alcohol prohibition on April 12, 2009 was particularly serious because it was implicated in his relapse into sexual misconduct - Undertakings to the court had to be honoured and enforced to preserve the integrity of the interim release system and the public's safety - Accordingly, the total sentence was 5.5 years before credit for time served.

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. [para. 26].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 26].

R. v. Jackson (D.H.) (1994), 116 Sask.R. 146; 59 W.A.C. 146; 87 C.C.C.(3d) 56 (C.A.), refd to. [para. 29].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 30].

R. v. Godlien, 2010 SKCA (SentDig) 4, refd to. [para. 32].

R. v. Brewster, 2007 SKCA (SentDig) 10, refd to. [para. 33].

R. v. Van de Wiele (A.) (1997), 152 Sask.R. 65; 140 W.A.C. 65 (C.A.), refd to. [para. 34].

R. v. Iron (L.J.) (2005), 269 Sask.R. 51; 357 W.A.C. 51; 2005 SKCA 84, refd to. [para. 35].

R. v. Toulejour (M.R.) (2002), 227 Sask.R. 128; 287 W.A.C. 128; 2002 SKCA 139, consd. [para. 37].

R. v. L.D.H. (2009), 343 Sask.R. 235; 472 W.A.C. 235; 2009 SKCA 135, consd. [para. 39].

R. v. D.H. (2000), 189 Sask.R. 295; 216 W.A.C. 295; 2000 SKCA 42, refd to. [para. 40].

R. v. Jean (E.J.) (2008), 265 B.C.A.C. 80; 446 W.A.C. 80; 242 C.C.C.(3d) 569; 2008 BCCA 465, refd to. [para. 41].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 48].

R. v. J.S.L.P. (2011), 391 Sask.R. 14; 2011 SKQB 7, refd to. [para. 49].

R. v. Leyte (B.I.) (2010), 293 Nfld. & P.E.I.R. 310; 906 A.P.R. 310; 2010 NLCA 8, refd to. [para. 50].

R. v. Sabourin (E.G.) (2009), 460 A.R. 118; 462 W.A.C. 118; 248 C.C.C.(3d) 111; 2009 NWTCA 6, refd to. [para. 50].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193; 2001 MBCA 64, refd to. [para. 50].

R. v. Furi, [2006] S.J. No. 26 (Q.B.), refd to. [para. 50].

R. v. Payne (D.M.) (2007), 293 Sask.R. 31; 397 W.A.C. 31; 2007 SKCA 28, refd to. [para. 50].

R. v. Haug (D.W.) (2006), 278 Sask.R. 28; 2006 SKQB 140, refd to. [para. 50].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 58].

Counsel:

M. McCallum, for the Crown;

G. Chovin, for the defendant.

This case was heard by Wilkinson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following decision on July 7, 2011.