R. v. Lambert (T.D.) et al.,

• Jurisdiction: New Brunswick
• Judge: Ferguson, J.
• Neutral Citation: 2010 NBQB 101
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Citation: (2010), 359 N.B.R.(2d) 201 (TD),2010 NBQB 101
• Date: 19 March 2010

R. v. Lambert (T.D.) (2010), 359 N.B.R.(2d) 201 (TD);

    359 R.N.-B.(2e) 201; 929 A.P.R. 201

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.B.R.(2d) TBEd. MR.054

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MR.054

Her Majesty the Queen v. Trevor Damelon Lambert and Michael Shane Ward

(N/CR/8/09; 2010 NBQB 101; 2010 NBBR 101)

Indexed As: R. v. Lambert (T.D.) et al.

Répertorié: R. v. Lambert (T.D.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Ferguson, J.

March 19, 2010.

Summary:

Résumé:

Lambert and Ward were convicted of aggravated assault.

The New Brunswick Court of Queen's Bench, Trial Division, sentenced Lambert to three years and three months' imprisonment, less 15 months for remand time, resulting in a sentence of two years' imprisonment. The court sentenced Ward to four and one half years' imprisonment, less seven and one half months for remand time, resulting in a sentence of three years and ten and one half months' imprisonment.

Criminal Law - Topic 5811

Sentencing - Sentencing procedure and rights of the accused - Evidence of circumstances of crime - At issue was the sentence to be imposed on Lambert and Ward who were convicted of committing an aggravated assault on Dedam - The defence contended, through the oral submission of defence counsel (Prince), that Dedam and Bonnell began attacking Ward and Lambert as soon as they entered Ward's home (which would be a substantial mitigating factor if accepted) - The Crown did not accede to that version of events - The New Brunswick Court of Queen's Bench, Trial Division, stated that "Mr. Prince, when given the opportunity to call evidence, declined to do so. He rests his argument on this issue on his oral version of events and maintains that the Crown witness' versions of the evidence do not prove its truth. The oral submission of counsel on a disputed fact carries little weight owing to the fact that the witness who was the source of the evidence to Mr. Prince has not undergone cross-examination, the best method of testing evidence veracity. Such disputed oral submissions through counsel simply lack any circumstantial reliability guarantees to assess the value of the evidence. That finding does not entitle the Crown to claim its version of the evidence is truthful and should be accepted. It does mean, however, that since the evidence the Crown relies upon has been given at the trial and subjected to contemporaneous cross-examination it can be valued" - See paragraphs 12 to 15.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - At issue was the sentence to be imposed on two aboriginal accused who were convicted of committing an aggravated assault on Dedam - The New Brunswick Court of Queen's Bench, Trial Division, considered s. 718.2(e) of the Criminal Code, which stated that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" - The court stated that the section had to be considered in the context of the crime committed and that "the effect of s. 718.2(e) of the Code has been seriously undercut by the circumstances surrounding this offence. The accused have, by their conduct in being criminally responsible for the very serious and lasting injuries to Mr. Dedam, denied themselves the right to effectively utilize that provision in their defence on sentence" - See paragraphs 58 to 60.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - At issue was the sentence to be imposed on two accused who were convicted of aggravated assault - The New Brunswick Court of Queen's Bench, Trial Division, stated that "Defence counsel have submitted precedents from both Ontario and British Columbia that support the imposition of a much more lenient sentence, in similar circumstances, than those imposed in the past in this province whether at the trial or appellate level ... However, sentence disparity in Canada is one of the few areas of the law in which regional differences are most apparent. Those differences have been part of our permanent legal landscape. They reflect the historical social and cultural differences that have and continue to exist in this vast country from coast to coast to coast. This court is bound to apply New Brunswick precedents in spite of the guidance that may be provided by trial and appellate courts in other provinces" - See paragraph 75.

Criminal Law - Topic 5938

Sentence - Aggravated assault - Bonnell and Dedam went to Ward's home to buy cocaine - Ward and Lambert were in the home drinking beer - After being refused the sale of cocaine by Ward, Bonnell became upset and punched Ward, breaking his nose - An altercation developed and the incident spilled outside - Bonnell was seriously wounded in the driveway of Ward's home by Ward's wielding of a broken beer bottle - Dedam backed up the street from Ward's home while still hurling verbal insults at Lambert and Ward - He was then set upon at the mouth of his own driveway, and repeatedly stabbed with a broken beer bottle - He suffered multiple stab wounds to the arm, head and face - His ear was nearly cut off - He also suffered tendon and nerve damage to his right hand - Ward was acquitted of aggravated assault in relation to Bonnell based on self-defence - However, both Ward and Lambert were convicted of aggravated assault of Dedam - Both accused were aboriginal - They were heavily under the influence of liquor at the time of the incident - Ward was 31 years old - Lambert was 29 - Both had criminal records, which were not especially serious - Ward had committed the offence while he was on bail for another serious assault - There was scant, if any, evidence of remorse by either accused - The New Brunswick Court of Queen's Bench, Trial Division, sentenced Lambert to three years and three months' imprisonment, less 15 months for remand time, resulting in a sentence of two years' imprisonment - The court sentenced Ward to four and one half years' imprisonment, less seven and one half months for remand time, resulting in a sentence of three years and ten and one half months' imprisonment - There was justification for imposing disparate sentences despite the absence of a factual determination with respect to who struck the blows that injured Dedam - That was so because of the risk that Ward posed having been involved in this offence while on bail for another serious but unrelated assault.

Droit criminel - Cote 5811

Détermination de la peine - Procédure et droits du prévenu - Preuve des circonstances du crime - [Voir Criminal Law - Topic 5811 ].

Droit criminel - Cote 5846.1

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Contrevenants autochtones - [Voir Criminal Law - Topic 5846.1 ].

Droit criminel - Cote 5846.5

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Précédents en matière de sentence - [Voir Criminal Law - Topic 5846.5 ].

Droit criminel - Cote 5938

Peine - Voies de fait graves - [Voir Criminal Law - Topic 5938 ].

Cases Noticed:

R. v. Englehart (A.) (1998), 199 N.B.R.(2d) 375; 510 A.P.R. 375 (C.A.), refd to. [para. 13].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 16].

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, refd to. [para. 54].

R. v. Francis (J.) (2001), 240 N.B.R.(2d) 159; 622 A.P.R. 159; 2001 NBCA 81, refd to. [para. 59].

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. 59].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273, refd to. [para. 59].

R. v. E.S. (1997), 191 N.B.R.(2d) 3; 488 A.P.R. 3 (C.A.), refd to. [para. 62].

R. v. Muhammad (Y.A.) (2004), 202 B.C.A.C. 41; 331 W.A.C. 41; 187 C.C.C.(3d) 14; 2004 BCCA 396, refd to. [para. 62].

R. v. Zeek (M.J.) (2004), 193 B.C.A.C. 104; 316 W.A.C. 104; 2004 BCCA 42, refd to. [para. 62].

R. v. C.B.H. (2008), 336 N.B.R.(2d) 307; 862 A.P.R. 307; 2008 NBCA 76, refd to. [para. 62].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 62].

R. v. Ward (M.S.) (2009), 345 N.B.R.(2d) 293; 889 A.P.R. 293; 2009 NBQB 168 (T.D.), refd to. [para. 69].

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, refd to. [para. 73].

R. v. Lauzon (1940), 74 C.C.C. 37 (Que. C.A.), refd to. [para. 74].

R. v. Bartibogue (D.J.) (1988), 94 N.B.R.(2d) 157; 239 A.P.R. 157 (T.D.), refd to. [para. 74].

R. v. Bernard (R.J.) (1989), 98 N.B.R.(2d) 54; 248 A.P.R. 54 (T.D.), refd to. [para. 74].

R. v. Aijo (E.A.) (1989), 100 N.B.R.(2d) 165; 252 A.P.R. 165 (C.A.), refd to. [para. 74].

R. v. Cloud (J.C.) and Cloud (R.) (1990), 104 N.B.R.(2d) 300; 261 A.P.R. 300 (T.D.), refd to. [para. 74].

R. v. Augustine (C.F.) (1992), 125 N.B.R.(2d) 382; 316 A.P.R. 382 (T.D.), refd to. [para. 74].

R. v. Gallant (S.F.) (1992), 126 N.B.R.(2d) 421; 317 A.P.R. 421 (C.A.), refd to. [para. 74].

R. v. Ginnish (E.M.) (1992), 130 N.B.R.(2d) 324; 328 A.P.R. 324 (T.D.), refd to. [para. 74].

R. v. Augustine (T.A.) (1993), 136 N.B.R.(2d) 52; 347 A.P.R. 52 (C.A.), refd to. [para. 74].

R. v. Savoie (B.L.) (1994), 152 N.B.R.(2d) 310; 390 A.P.R. 310 (C.A.), refd to. [para. 74].

R. v. Canney (R.H.) (1995), 163 N.B.R.(2d) 161; 419 A.P.R. 161 (C.A.), refd to. [para. 74].

R. v. Dadar (M.) (1998), 197 N.B.R.(2d) 381; 504 A.P.R. 381 (C.A.), refd to. [para. 74].

R. v. Joyce (K.R.) (1998), 203 N.B.R.(2d) 1; 518 A.P.R. 1 (C.A.), refd to. [para. 74].

R. v. Firlotte (S.D.) (1998), 203 N.B.R.(2d) 177; 518 A.P.R. 177 (Prov. Ct.), refd to. [para. 74].

R. v. Augustine (C.C.) (2001), 244 N.B.R.(2d) 289; 634 A.P.R. 289 (C.A.), refd to. [para. 74].

R. v. Guitare (E.), [2001] N.B.R.(2d) (Supp.) No. 61 (C.A.), refd to. [para. 74].

R. v. Dedam (J.D.), [2002] N.B.R.(2d) (Supp.) No. 28 (T.D.), refd to. [para. 74].

R. v. Lumsden (J.I.) (2002), 249 N.B.R.(2d) 22; 648 A.P.R. 22 (C.A.), refd to. [para. 74].

R. v. Chiasson (G.) (2005), 289 N.B.R.(2d) 81; 753 A.P.R. 81; 2005 NBCA 78, refd to. [para. 74].

R. v. Copp (J.S.) (2007), 319 N.B.R.(2d) 354; 823 A.P.R. 354 (T.D.), refd to. [para. 74].

R. v. Walton (D.J.) (2008), 332 N.B.R.(2d) 160; 852 A.P.R. 160; 2008 NBQB 181, refd to. [para. 74].

R. v. Hurley (W.C.S.) (2008), 262 B.C.A.C. 92; 441 W.A.C. 92; 2008 BCCA 461, refd to. [para. 75].

R. v. Peters, [2010] O.J. No. 128 (C.A.), refd to. [para. 75].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, refd to. [para. 82].

R. v. Turner (G.D.) (2010), 356 N.B.R.(2d) 293; 919 A.P.R. 293; 2010 NBQB 93, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 58].

Counsel:

Avocats:

Bannon Morrissy, for the Crown;

Thomas Prince, for Michael Shane Ward;

Aloysius Hayes, for Trevor Damelon Lambert.

This matter was heard on March 11, 15 and 17, 2010, before Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on March 19, 2010.