R. v. MacFarlane (R.E.), (2014) 421 N.B.R.(2d) 329 (CA)

• Judge: Deschênes, Richard and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 29, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 421 N.B.R.(2d) 329 (CA);2014 NBCA 35

R. v. MacFarlane (R.E.) (2014), 421 N.B.R.(2d) 329 (CA);

    421 R.N.-B.(2e) 329; 1094 A.P.R. 329

MLB headnote and full text

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: [2014] N.B.R.(2d) TBEd. JL.025

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.025

Robert Edison MacFarlane (appellant) v. Her Majesty the Queen (respondent)

(141-13-CA; 2014 NBCA 35)

Indexed As: R. v. MacFarlane (R.E.)

Répertorié: R. v. MacFarlane (R.E.)

New Brunswick Court of Appeal

Deschênes, Richard and Green, JJ.A.

May 29, 2014.

Summary:

Résumé:

The accused pled guilty to assault and mischief. He was sentenced to three months' imprisonment followed by 18 months' probation. He appealed his conviction and, if leave was granted, appealed his sentence.

The New Brunswick Court of Appeal dismissed the conviction appeal. The court granted leave to appeal the sentence and adjourned the sentence appeal to a date when the court would hear the evidence the parties should have been allowed to present before the sentence was passed.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - Charged with assault and mischief, the accused elected to be tried in Provincial Court and initially pled not guilty - On the date set for trial, he advised the court of his wish to change his plea - The judge accepted guilty pleas to both offences - Sentencing was adjourned - The matter resumed for sentencing before a different judge of the Provincial Court, so the pleas were withdrawn and re-entered - Again, the accused pled guilty to both offences - The second judge accepted the pleas - Prosecution counsel asked the judge to consider a sentence of incarceration in the range of 16 to 18 months together with a probation order - At this point, it came to the attention of counsel for the prosecution, who was not counsel when the pleas were originally changed from not guilty to guilty, that the pleas had been changed as part of a plea agreement pursuant to which there was to be a joint recommendation for a sentence of incarceration of two to three months - Prosecution counsel advised the judge she considered herself bound to honour the agreement - After a short adjournment, defence counsel advised the judge that the accused wished to change his pleas to not guilty - The judge refused the request on the ground the pleas had been made voluntarily and had been accepted after compliance with s. 606(1.1) of the Criminal Code - At this stage, the accused himself advised the judge he was disputing some of the facts prosecution counsel had related to the court - The matter was adjourned for a sentencing hearing - At the hearing, the judge referred to "the facts as related to me by" prosecution counsel and "the acceptance of those facts by the accused." - The accused immediately reminded the judge he had not accepted the facts and that he wanted "to testify" as to "his side of the story." - The sentencing judge noted that the pre-sentence report indicated that the accused accepted full responsibility for the offences - He then sentenced the accused to three months' imprisonment followed by 18 months' probation - The accused appealed the convictions, asserting that the sentencing judge erred in not staying the proceedings on the grounds of abuse of process - The New Brunswick Court of Appeal dismissed the conviction appeal - There was no state conduct that constituted an abuse of process - See paragraph 16.

Criminal Law - Topic 4220.1

Procedure - Pleas - Whether voluntary - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - Charged with assault and mischief, the accused elected to be tried in Provincial Court and initially pled not guilty - On the date set for trial, he advised the court of his wish to change his plea - The judge accepted guilty pleas to both offences - Sentencing was adjourned - The matter resumed for sentencing before a different judge of the Provincial Court, so the pleas were withdrawn and re-entered - Again, the accused pled guilty to both offences - The second judge accepted the pleas - Prosecution counsel asked the judge to consider a sentence of incarceration in the range of 16 to 18 months together with a probation order - At this point, it came to the attention of counsel for the prosecution, who was not counsel when the pleas were originally changed from not guilty to guilty, that the pleas had been changed as part of a plea agreement pursuant to which there was to be a joint recommendation for a sentence of incarceration of two to three months - Prosecution counsel advised the judge she considered herself bound to honour the agreement - After a short adjournment, defence counsel advised the judge that the accused wished to change his pleas to not guilty - The judge refused the request on the ground the pleas had been made voluntarily and had been accepted after compliance with s. 606(1.1) of the Criminal Code - At this stage, the accused himself advised the judge he was disputing some of the facts prosecution counsel had related to the court - The matter was adjourned for a sentencing hearing - At the hearing, the judge referred to "the facts as related to me by" prosecution counsel and "the acceptance of those facts by the accused." - The accused immediately reminded the judge he had not accepted the facts and that he wanted "to testify" as to "his side of the story." - The sentencing judge noted that the pre-sentence report indicated that the accused accepted full responsibility for the offences - He then sentenced the accused to three months' imprisonment followed by 18 months' probation - The accused appealed the convictions, asserting that the sentencing judge erred in not allowing the accused to withdraw his guilty pleas - The New Brunswick Court of Appeal dismissed the conviction appeal - Nothing in the record suggested the accused's plea was not made voluntarily or that he did not understand any of the elements listed in s. 606(1.1) - The accused had not sought to adduce any evidence to rebut the presumption that the plea was valid - As a result, the judge did not err in refusing to allow him to change his plea - See paragraphs 17 to 19.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of accused - Right of accused to be heard - Charged with assault and mischief, the accused elected to be tried in Provincial Court and initially pled not guilty - On the date set for trial, he advised the court of his wish to change his plea - The judge accepted guilty pleas to both offences - Sentencing was adjourned - The matter resumed for sentencing before a different judge of the Provincial Court, so the pleas were withdrawn and re-entered - Again, the accused pled guilty to both offences - The second judge accepted the pleas - Prosecution counsel asked the judge to consider a sentence of incarceration in the range of 16 to 18 months together with a probation order - At this point, it came to the attention of counsel for the prosecution, who was not counsel when the pleas were originally changed from not guilty to guilty, that the pleas had been changed as part of a plea agreement pursuant to which there was to be a joint recommendation for a sentence of incarceration of two to three months - Prosecution counsel advised the judge she considered herself bound to honour the agreement - After a short adjournment, defence counsel advised the judge that the accused wished to change his pleas to not guilty - The judge refused the request on the ground the pleas had been made voluntarily and had been accepted after compliance with s. 606(1.1) of the Criminal Code - At this stage, the accused himself advised the judge he was disputing some of the facts prosecution counsel had related to the court - The matter was adjourned for a sentencing hearing - At the hearing, the judge referred to "the facts as related to me by" prosecution counsel and "the acceptance of those facts by the accused." - The accused immediately reminded the judge he had not accepted the facts and that he wanted "to testify" as to "his side of the story." - The sentencing judge noted that the pre-sentence report indicated that the accused accepted full responsibility for the offences - He then sentenced the accused to three months' imprisonment followed by 18 months' probation - The accused appealed the sentence, asserting that the sentencing judge erred in passing sentence without a sentencing hearing - The New Brunswick Court of Appeal held that the sentencing judge erred in law in several respects - First, the judge did not provide the accused an opportunity to make submissions with respect to relevant facts - Second, the judge did not hear any relevant evidence the accused wanted to present - Third, the judge did not require evidence to resolve the factual dispute, including giving the accused the opportunity to cross-examine any witness called by the prosecution - These errors constituted violations of ss. 723(1), 723(2) and 724(3) of the Criminal Code and struck at the core of fundamental fairness in the sentencing process - The court could not proceed with the imposition of sentence without first ensuring compliance with ss. 723 and 724 - Since the court had no power in a sentence appeal to return the matter to the sentencing judge, this was one of those rare cases where the court itself would be required to hold the sentencing hearing that should have taken place in the Provincial Court - The power to do so was found in s. 683(1) of the Code - The court adjourned the sentence appeal to a date when the court would hear the evidence the parties should have been allowed to present before the sentence was passed - See paragraphs 20 to 30.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5814 ].

Droit criminel - Cote 253

Principes généraux - Abus de procédure - Éléments constitutifs - [Voir Criminal Law - Topic 253 ].

Droit criminel - Cote 4220.1

Procédure - Plaidoyers - Volontaires ou non - [Voir Criminal Law - Topic 4220.1 ].

Droit criminel - Cote 4233

Procédure - Plaidoyers - Plaidoyer de culpabilité - Radiation ou annulation - [Voir Criminal Law - Topic 4233 ].

Droit criminel - Cote 5814

Détermination de la peine - Procédure de la détermination de la peine et droits du prévenu - Droit du prévenu d'être entendu - [Voir Criminal Law - Topic 5814 ].

Droit criminel - Cote 6201

Détermination de la peine - Appels - Modification de la peine - Pouvoirs de la Cour d'appel (y compris la norme de révision) - [Voir Criminal Law - Topic 6201 ].

Cases Noticed:

R. v. Steeves (T.) (2010), 360 N.B.R.(2d) 88; 930 A.P.R. 88; 2010 NBCA 57, refd to. [para. 16].

R. v. McLaughlin (G.) (2013), 403 N.B.R.(2d) 358; 1045 A.P.R. 358; 2013 NBCA 28, refd to. [para. 17].

Counsel:

Avocats:

No one appeared, for the appellant;

Kathryn A. Gregory, for the respondent.

This appeal was heard on May 29, 2014, by Deschênes, Richard and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Richard, J.A., in both official languages, on the same date.