R. v. M.S., (2015) 373 Nfld. & P.E.I.R. 23 (NLPC)

• Judge: Goulding, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: August 27, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 23 (NLPC)

R. v. M.S. (2015), 373 Nfld. & P.E.I.R. 23 (NLPC);

    1161 A.P.R. 23

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.002

Her Majesty the Queen v. M.S.

(Docket: 0115Y00184)

Indexed As: R. v. M.S.

Newfoundland and Labrador Provincial Court

Goulding, P.C.J.

September 23, 2015.

Summary:

The accused young person was sentenced for various offences in February 2014. The total sentence was 27 months and included an 18 month probation order. In June 2015, the accused was charged with breaching the probation order by failing to keep the peace and be of good behaviour (count 1) and failing to comply with a condition of her curfew (count 2). The accused argued that the probation order was invalid because the duration of the February 2014 sentence exceeded two years and thus did not comply with s. 42(14) of the Youth Criminal Justice Act.

The Newfoundland and Labrador Provincial Court convicted the accused on count 2 and entered a stay of proceedings on count 1 pursuant to the Kienapple principle.

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 2836

Jurisdiction - Provincial Court judges - Young offenders - [See Criminal Law - Topic 8882 ].

Criminal Law - Topic 5729

Punishments (sentence) - Probation and probation orders - Validity of - [See Criminal Law - Topic 8882 ].

Criminal Law - Topic 6222

Sentencing - Appeals - Variation of sentence - Jurisdiction - [See Criminal Law - Topic 8882 ].

Criminal Law - Topic 8805

Young offenders - Decisions (incl. punishments) - Sentencing limitations (incl. bars to custody) - [See Criminal Law - Topic 8882 ].

Criminal Law - Topic 8882

Young offenders - Appeals - Jurisdiction - The accused young person was sentenced for various offences in February 2014 - The total sentence was 27 months and included an 18 month probation order - In June 2015, the accused was charged with breaching the probation order by failing to keep the peace and be of good behaviour (count 1) and failing to comply with a condition of her curfew (count 2) - The accused argued that the probation order was invalid because the duration of the February 2014 sentence exceeded two years and thus did not comply with s. 42(14) of the Youth Criminal Justice Act - The Newfoundland and Labrador Provincial Court held that the accused's defence amounted to a collateral attack on the probation order - The proper course was for the accused to appeal the sentence - The provincial court had no authority to hear such appeals - The probation order was binding and conclusive until set aside on appeal - The court convicted the accused on count 2 and entered a stay of proceedings on count 1 pursuant to the Kienapple principle.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See Criminal Law - Topic 8882 ].

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 7].

R. v. B.R.K. (2011), 530 A.R. 238; 2011 ABQB 746, refd to. [para. 7].

R. v. Lucas (M.) (2009), 293 Nfld. & P.E.I.R. 90; 906 A.P.R. 90; 2009 NLCA 56, refd to. [para. 8].

R. v. Stacey (R.) (2009), 291 Nfld. & P.E.I.R. 264; 898 A.P.R. 264; 2009 NLCA 63, refd to. [para. 8].

R. v. Cuthbert, 2004 ONCJ 294, refd to. [para. 8].

R. v. Hennigar (1983), 58 N.S.R.(2d) 110; 123 A.P.R. 110 (C.A.), dist. [para. 8].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 9].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, refd to. [para. 9].

R. v. N.G. (2015), 323 Man.R.(2d) 73; 657 W.A.C. 73; 2015 MBCA 81, refd to. [para. 9].

Counsel:

Jessica Gallant, for Her Majesty the Queen;

Karen Rehner, for the accused.

This matter was heard at St. John's, NL, on August 27, 2015, before Goulding, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following reasons for judgment on September 23, 2015.