R. v. Lee (C.J.), 2012 ABCA 17

• Judge: Conrad, Berger and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 19, 2012
• Citations: 2012 ABCA 17;(2012), 524 A.R. 22

R. v. Lee (C.J.) (2012), 524 A.R. 22; 545 W.A.C. 22 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.098

Her Majesty The Queen (appellant) v. Christopher John Lee (respondent)

(0803-0170-A; 2012 ABCA 17)

Indexed As: R. v. Lee (C.J.)

Alberta Court of Appeal

Conrad, Berger and Watson, JJ.A.

January 19, 2012.

Summary:

The accused and complainant were strangers. The complainant said she approached the accused outside of a nightclub attempting to sell personal items for cab fare home. The accused's version was that she asked about drugs. The accused got angry. He began ranting and swearing, and chased her. Although the accused and complainant had different versions of what transpired next, within 10 minutes the complainant was performing oral sex on the accused. The accused alleged that it was consensual, that she offered oral sex in exchange for a place to stay that night. The complainant alleged that the accused forced her to perform oral sex at knifepoint. The trial judge convicted the accused of sexual assault and unlawful confinement and subsequently sentenced him to imprisonment for two years less a day followed by 18 months' probation. The accused appealed, submitting that the trial judge misapprehended evidence which was central to his reasoning process, rendering the verdict unreasonable (i.e., error in weighing the evidence).

The Alberta Court of Appeal, in a judgment reported (2010), 474 A.R. 203; 479 W.A.C. 203, dismissed the appeal. The verdict was not unreasonable and there were no errors of law disclosed on the record. Berger, J.A., dissenting, would have allowed the appeal and ordered a new trial on the ground that the trial judge failed to consider relevant evidence, relied on inadmissible evidence and failed to give proper effect to other evidence, all errors playing an essential part in her reasoning process. The accused appealed as of right.

The Supreme Court of Canada, in a judgment reported (2010), 408 N.R. 129; 490 A.R. 202; 497 W.A.C. 202, dismissed the appeal. The matter returned to the Court of Appeal to hear the Crown's sentence appeal. The Crown argued that the court was bound by its previous decision in R. v. Arcand to impose a sentence of greater than four years' imprisonment.

The Alberta Court of Appeal, Watson, J.A., dissenting, dismissed the sentence appeal.

Courts - Topic 78

Stare decisis - Authority of judicial decisions - Prior decisions of same court - "Per incuriam" exception - A 2010 decision of a five member panel of the Court of Appeal set out various sentencing principles in a three to two majority decision (Arcand) - On a sentencing appeal, Berger, J.A., of the Alberta Court of Appeal held that the Arcand decision was not binding authority - Berger, J.A., stated that "in the interests of jurisprudential stability and certainty in the law, a panel of a provincial appellate court is normally bound by its previous decisions. ... the general principle does not apply when a previous decision of the court was made without regard to a binding authority that it ought to have followed or that it overlooked a relevant statutory provision. ... I am of the view that ... the majority opinion in Arcand regarding principles of sentencing in many respects misstates the law, ignores binding precedent of the Supreme Court of Canada, and fails to adhere to legislative imperatives. Accordingly, with great respect, the judgment may be said to have been delivered per incuriam. It follows that I am unable to accede to the contention of the Crown in the instant appeal that Arcand is of binding authority. It need not be followed." - Neither Conrad, J.A., nor Watson, J.A., found it necessary to address whether Arcand was binding authority - See paragraphs 44 to 76.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The 24 year old accused was convicted of sexual assault with a weapon (knife) and unlawful confinement for forcing a woman to perform oral sex on him at knifepoint - The accused had an unrelated record, was assessed as a moderate risk to re-offend sexually and was not remorseful or empathetic - However, he was amenable to rehabilitation with counselling - The trial judge considered the three year starting point sentence for a major sexual assault (R. v. Sandercock), but after weighing the mitigating and aggravating factors, and considering all of the relevant sentencing principles, sentenced the accused to concurrent sentences of two years' less a day followed by 18 months' probation - The Crown appealed - The Alberta Court of Appeal, Watson, J.A., dissenting, dismissed the appeal - Berger, J.A., conceded that if the court was bound by the sentencing principles stated in its previous decision (Arcand), a sentence exceeding four years' imprisonment was required - However, Berger, J.A., considered the Arcand decision to have misstated the law and to be contrary to Supreme Court of Canada judgments - Accordingly, it was a per incuriam decision that was not binding authority - Berger, J.A., held that where there was no error in principle, failure to consider a relevant factor, overemphasis of the appropriate factors and the sentence was not demonstrably unfit, appellate intervention was precluded - The sentence imposed was entitled to deference - Conrad, J.A., agreed that there was no error in principle, the sentence was not demonstrably unfit and deference precluded appellate intervention - Conrad, J.A., found it unnecessary to determine whether Arcand remained binding authority - Watson, J.A., although agreeing that there was no error by the trial judge, would have imposed a sentence in excess of four years' imprisonment on the ground that the sentence imposed did not reflect the principle of proportionality and the need for denunciation and deterrence - Watson, J.A., also chose not to address the binding authority of Arcand, other than noting that it represented the current state of sentencing law in Alberta.

Criminal Law - Topic 5868

Sentence - Forcible confinement or seizure - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5933

Sentence - Sexual assault with weapon, threats to third party or causing bodily harm - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5846.5 ].

Cases Noticed:

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 264 C.C.C.(3d) 134; 2010 ABCA 363, consd. [para. 3].

R. v. Arcand - see R. v. J.L.M.A.

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, refd to. [para. 8].

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. 8].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27, refd to. [para. 8].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88, refd to. [para. 8].

R. v. Tasew (G.A.) (2011), 513 A.R. 154; 530 W.A.C. 154; 2011 ABCA 241, refd to. [para. 13].

R. v. Jacko (L.) (2010), 263 O.A.C. 326; 256 C.C.C.(3d) 113; 2010 ONCA 452, refd to. [para. 19].

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. 22].

R. v. Whiskeyjack (R.) (2008), 243 O.A.C. 150; 93 O.R.(3d) 743 (C.A.), refd to. [para. 22].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 25, footnote 2].

R. v. Laliberte (M.R.) (2000), 189 Sask.R. 190; 216 W.A.C. 190; 143 C.C.C.(3d) 503 (C.A.), refd to. [para. 28, footnote 5].

R. v. Jun (1940), 73 C.C.C. 289 (B.C.C.A.), refd to. [para. 34].

R. v. McInnis (1974), 13 C.C.C.(2d) 471 (Ont. C.A.), refd to. [para. 34].

R. v. Govedarov et al. (1974), 16 C.C.C.(2d) 238 (Ont. C.A.) , refd to. [para. 34].

R. v. Santeramo (1977), 36 C.R.N.S. 1 (Ont. C.A.), refd to. [para. 34].

R. v. C.N.H. (2002), 167 O.A.C. 292; 170 C.C.C.(3d) 253 (C.A.), refd to. [para. 40].

R. v. Biancofiore (1997), 103 O.A.C. 292; 119 C.C.C.(3d) 344 (C.A.), refd to. [para. 41].

Ras Behari Lal v. King Emperor, [1933] All E.R. Rep. 723, refd to. [para. 46].

R. v. Neves (J.A.), [2006] 4 W.W.R. 464; 201 Man.R.(2d) 44; 366 W.A.C. 44; 2005 MBCA 112, refd to. [para. 49].

General Brake & Clutch Service Ltd. v. W.A. Scott & Sons Ltd. (1975), 59 D.L.R.(3d) 741 (Man. C.A.), refd to. [para. 49].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 58].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351, refd to. [para. 58].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219; 2000 ABCA 243, refd to. [para. 64].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146 (C.A.), refd to. [para. 65].

Miller v. Canada (Attorney General) (2002), 293 N.R. 391; 220 D.L.R.(4th) 149; 2002 FCA 370, refd to. [para. 74].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1996), 197 N.R. 291 (F.C.A.), refd to. [para. 74].

Janssen Pharmaceutica Inc. et al. v. Apotex Inc. et al. (1997), 208 N.R. 395 (F.C.A.), refd to. [para. 74].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 29 O.R.(3d) 577 (C.A.), refd to. [para. 74].

Bell v. Cessna Aircraft (1983), 149 D.L.R.(3d) 509 (B.C.C.A.), refd to. [para. 74].

R. v. Grumbo (1988), 159 D.L.R.(4th) 577 (Sask. C.A.), refd to. [para. 74].

Lefebvre v. Québec (Commission des Affaires Sociales) (1991), 39 Q.A.C. 206 (C.A.), refd to. [para. 74].

Widmont v. Minister of Employment and Immigration, [1984] 2 F.C. 274; 56 N.R. 198 (F.C.A.), refd to. [para. 74].

Glaxo Group Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 103 F.T.R. 1; 64 C.P.R.(3d) 65 (T.D.), refd to. [para. 74].

R. v. Sandercock (1985), 62 A.R. 382 (C.A.), refd to. [para. 91].

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. 103].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 145 D.L.R.(4th) 577, refd to. [para. 107].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 112].

R. v. Law (B.K.) (2007), 409 A.R. 190; 402 W.A.C. 190; 222 C.C.C.(3d) 53 (C.A.), refd to. [para. 126].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 134].

Authors and Works Noticed:

Allen, Carleton Kemp, Precedent and Logic (1925), 41 L.Q. 329, p. 334 [para. 46].

Aspen, Marvin, Sentencing: Judicial Function, Encyclopedia of Crime and Justice (1983), p. 1460 [para. 31].

Blackstone's Commentaries on the Laws of England, vol. IV (W. Morrison, ed.) (2001), pp. 12 to 13 [para. 12].

Canada, Department of Justice, The Criminal Law in Canadian Society (August 1982), p. 50 [para. 11].

Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), pp. 136 to 137 [para. 39].

Chasse, Ken, Untruth in Sentencing Credit for Pre-Sentence Custody (2010), 15 Can. Crim. L. Rev. 75, pp. 97 to 98 [para. 72].

Cleveland, David R., Overturning the Last Stone: The Final Step in Returning Precedential Status to all Opinions, The Journal of Appellate Practice and Process, vol. 10/No. 1 (Spring 2009), p. 120 [para. 68].

Coons, John E., Consistency (1987), 75 Cal. L. Rev. 59, p. 84 [para. 31].

Daughety, Andrew F., and Reinganum, Jennifer F., Stampede to Judgment (1999), 1 Am. Law and Econ. Rev. 158, generally [para. 48, footnote 9].

Duxbury, Neil, The Nature and Authority of Precedent (2008), pp. 98 [para. 47]; 178 [para. 30].

Harris, B.V., Final Appellate Courts Overruling Their Own "Wrong" Precedents: The Ongoing Search for Principle (2002), 118 L.Q.R. 408, p. 421 [para. 45].

Manson, Allan, The Law of Sentencing (2001), pp. 86 [paras. 11, 17]; 93 to 94 [paras. 28].

Murphy and Reuter, Stare Decisis in Commonwealth Appellate Courts (1981), p. 105 [para. 33].

Parkes, Debra, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135, para. 55 [para. 50].

Renaud, Gilles, The Sentencing Code of Canada: Principles and Objectives (2009), pp. 74 to 75 [para. 42].

Ruby, Clayton, Sentencing (7th Ed. 2008), p. 26, para. 2.5 [para. 11].

Rudin, Jonathan, Eyes Wide Shut: The Alberta Court of Appeal's Decision in R. v. Arcand and Aboriginal Offenders (2011), 48 Alta. Law Rev. (No. 4) 987, p. 996 [para. 23].

Schauer, Frederick, Precedent, Stanford Law Review (1987), 39 Stan. L. Rev. 571, generally [para. 51].

Smith, Paula, Goggin, Claire, and Gendreau, Paul, The Effects of Prison Sentences and Intermediate Sanctions of Recidivism: General Effects and Individual Differences, Public Works and Government Services Canada (2002), generally [para. 37, footnote 8].

Sunstein, Cass R., Why Societies Need Dissent? (2003), pp. 54 to 55 [para. 48].

Counsel:

T.L. Couillard, for the appellant;

D.R. Hatch, for the respondent.

This appeal was heard on January 18, 2011, before Conrad, Berger and Watson, JJ.A., of the Alberta Court of Appeal.

On January 19, 2012, the following memorandum of judgment was delivered and the following opinions were filed:

Berger, J.A. - see paragraphs 1 to 104;

Conrad, J.A., concurring in the result - see paragraphs 105 to 111;

Watson, J.A., dissenting - see paragraphs 112 to 145.