R. v. Lamouche (K.A.), (2004) 369 A.R. 293 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 26, 2004
• Citations: (2004), 369 A.R. 293 (QB);2004 ABQB 638

R. v. Lamouche (K.A.) (2004), 369 A.R. 293 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. OC.132

Her Majesty The Queen (respondent) v. Keith Anthony Lamouche (appellant)

(040718561S1; 2004 ABQB 638)

Indexed As: R. v. Lamouche (K.A.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

September 1, 2004.

Summary:

The accused pleaded guilty to two breaches of his 18 month probation for showing up at his former wife's residence while intoxicated. It was his 10th breach of the order. The accused served two days in pretrial custody and was sentenced, without reasons, to the maximum sentence of six months' imprisonment, which he had to serve in solitary confinement because of his record. The accused appealed against sentence. At the time of the appeal, the accused had served 70 days in solitary confinement.

The Alberta Court of Queen's Bench allowed the appeal and reduced the sentence to time served. Aside from the effect of the failure to give reasons, the sentence imposed was demonstrably unfit.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of accused - Reasons for sentence - A sentencing judge, without giving reasons, imposed the maximum sentence of six months' imprisonment on an accused who pleaded guilty to two counts of breaching his probation order - The Alberta Court of Queen's Bench held that s. 762.1 of the Criminal Code required that a sentencing judge provide reasons - The court stated that "the failure of a sentencing judge to give any, or sufficient, reasons may, of itself be a sufficient basis for an appeal court to consider the sentence afresh: the articulation of adequate reasons for sentence is at the core of both the judge's accountability to the community and, particularly in relation to the imposition or enforcement of a probation order, the judge's responsibility to guide and support the rehabilitation of the offender. However, because the sentence appealed from is not "fit", it is not necessary to decide that issue in these proceedings." - See paragraphs 13 to 31.

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - [See Criminal Law - Topic 5898 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - The 39 year old accused pleaded guilty to two breaches of his 18 month probation order after banging on the door of his former wife's residence while intoxicated - It was his 10th breach of the order - The accused served two days in pretrial custody and was sentenced, without reasons, to the maximum sentence of six months' imprisonment, which he had to serve in solitary confinement because of his record - The accused appealed against sentence - At the time of the appeal, the accused had served 70 days in solitary confinement - The Alberta Court of Queen's Bench reduced the sentence to time served - Aside from the effect of the failure to give reasons, the sentence imposed was demonstrably unfit -The maximum sentence for a not extremely serious breach of probation was too severe - There was no regard to the guilty plea and no credit for the two days' pretrial custody - There was no victim impact statement, and no evidence that the wife felt threatened (just annoyed) - There was no consideration of the rehabilitative objective of the original sentence, the effect of the accused being an aboriginal and the range of sentences for similar offenders and offences - See paragraphs 32 to 50.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5898 ].

Cases Noticed:

R. v. Whitemanleft (C.J.) (2000), 265 A.R. 130 (Prov. Ct.), refd to. [para. 7].

R. v. Meatface (B.) and Wiebe (S.D.) (1999), 252 A.R. 33 (Q.B.), refd to. [para. 7].

R. v. Reshke (R.G.) (2004), 358 A.R. 63 (Q.B.), refd to. [para. 7].

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. 8].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 8].

R. v. Swanson (J.E.) (2002), 167 B.C.A.C. 50; 274 W.A.C. 50 (C.A.), refd to. [para. 8].

R. v. Mason (C.A.) (2002), 166 Man.R.(2d) 170; 278 W.A.C. 170 (C.A.), refd to. [para. 8].

R. v. Brown (D.A.) (1989), 95 A.R. 318 (C.A.), refd to. [para. 8].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298, refd to. [para. 8].

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. 9].

R. v. Centennial Zinc Plating Ltd. (2004), 353 A.R. 300; 2004 ABQB 211, refd to. [para. 9].

R. v. Terroco Industries Ltd. (2005), 367 A.R. 1; 346 W.A.C. 1 (C.A.), refd to. [para. 9].

R. v. Yaremkevich (G.N.) (2002), 328 A.R. 180 (Prov. Ct.), refd to. [para. 9].

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. 9].

Counsel:

Robert Joly, for the appellant;

Annue Schutte, for the respondent.

This appeal was heard on August 26, 2004, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on September 1, 2004.