R. v. Landry (J.J.), 2016 NSCA 53

• Judge: Beveridge, Oland and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 22, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 53;(2016), 375 N.S.R.(2d) 1 (CA)

R. v. Landry (J.J.) (2016), 375 N.S.R.(2d) 1 (CA);

    1182 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.041

Joseph James Landry (appellant) v. Her Majesty the Queen (respondent)

(CAC 436235; 2016 NSCA 53)

Indexed As: R. v. Landry (J.J.)

Nova Scotia Court of Appeal

Beveridge, Oland and Farrar, JJ.A.

June 22, 2016.

Summary:

The accused was charged with second degree murder. After a trial by judge and jury he was convicted of manslaughter.

The Nova Scotia Supreme Court, in a decision reported at (2015), 356 N.S.R.(2d) 109; 1126 A.P.R. 109, sentenced the accused to 14 years less time spent incarcerated on a 1.5:1 basis. The accused sought leave to appeal sentence and, if leave was granted, appealed.

The Nova Scotia Court of Appeal granted leave to appeal, but dismissed the appeal.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5809.3

Sentencing - General - Where factual basis for jury's verdict unclear - The Nova Scotia Court of Appeal stated that "... following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of the circumstances of the offence consistent with the jury verdict. A trial judge must determine the facts for the purpose of imposing sentence guided by two fundamental principles: a trial judge must be satisfied that the evidence establishes aggravating facts beyond a reasonable doubt, and the facts must not be inconsistent with the jury's verdict ... I would distill the rules for a court to follow as: 1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury's guilty verdict. 2. When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or she must make their own independent determination as to the relevant facts. 3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed. 4. The sentencing judge may not find as fact things that were rejected by the jury's verdict. 5. For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable her to find it proved beyond a reasonable doubt." - See paragraphs 48 and 49.

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused was charged with second degree murder - After a trial by judge and jury he was convicted of manslaughter - No criminal record - The sentencing judge found that the 67 year old accused killed the victim because he believed that he was interfering with lobster traps which were the property of the Twin Maggies, a lobster fishing vessel - The accused was a crew member on the Twin Maggies, which was skippered by the accused's son-in-law - The accused shot the victim in the leg - The Twin Maggies rammed the victim's boat three times, swamping it - While the victim was in the water, holding on to a gas can, begging for his life, he told the accused "please James don't shoot me, I didn't steal your lobsters" - The accused gaffed the victim three times (he escaped twice) and the Twin Maggies dragged him out to sea - The court held that the sustained attack that resulted in the death of the victim was at the "almost murder" extreme of the manslaughter sentencing range - The crime had torn at the fabric of a close knit community - The court sentenced the accused to 14 years less time spent incarcerated on a 1.5:1 basis - The Nova Scotia Court of Appeal upheld the sentence - There was ample evidence to permit the trial judge to find proven beyond a reasonable doubt the aggravating facts that he relied upon in arriving at what he considered to be a fit sentence - Further, the sentence was not disproportionate to a 10 year sentence imposed on a co-accused (Samson) - Samson had been following the accused's orders - Further, Samson felt that he was in a "state of panic" - Samson pleaded guilty and showed genuine remorse - The accused expressed no remorse - He commented to the police that he intended to kill the victim, the victim did not deserve a mass and he hoped that the crabs would eat the victim's body - In the Pre-Sentence Report, the accused insisted that he did not deserve to be in jail because of the victim's record and long-term conduct in cutting their traps.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Nova Scotia Court of Appeal discussed the standard of review of an appellate court regarding sentence - See paragraphs 35 to 38.

Counsel:

Roger A. Burrill, for the appellant;

Timothy O'Leary, for the respondent.

This application for leave to appeal sentence and sentence appeal were heard in Halifax, N.S., on January 22, 2016, by Beveridge, Oland and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Beveridge, J.A., delivered the following decision for the court on June 22, 2016.