R. v. Marriott (A.G.), 2014 NSCA 28

• Judge: Oland, Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 25, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 28;(2014), 343 N.S.R.(2d) 39 (CA)

R. v. Marriott (A.G.) (2014), 343 N.S.R.(2d) 39 (CA);

    1084 A.P.R. 39

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MR.051

Aaron Gregory Marriott (appellant) v. Her Majesty The Queen (respondent)

(CAC 352265; 2014 NSCA 28)

Indexed As: R. v. Marriott (A.G.)

Nova Scotia Court of Appeal

Oland, Fichaud and Farrar, JJ.A.

March 25, 2014.

Summary:

The accused pleaded guilty to attempted murder on the first day of trial.

The Nova Scotia Supreme Court, in a decision reported at [2011] N.S.R.(2d) Uned. 250, accepted a joint recommendation of the Crown and trial counsel and sentenced the accused to 15 years' imprisonment on May 16, 2011. On June 20, 2011, the accused filed a prisoner's appeal from the sentence. In the autumn of 2011, he retained his present counsel. On May 24, 2012, the accused amended his Notice of Appeal pursuant to a consent order. On June 28, 2012, the accused filed a motion to again amend his Notice of Appeal to include grounds that his Charter rights had been infringed, and that his sentence should be mitigated under the principles stated in R. v. Nasogaluak (2010 S.C.C.). The accused applied to introduce fresh evidence to support his appeal, and asked that his sentence be reduced to five years. The Crown moved for rulings that the accused's position on appeal impliedly waived aspects of his solicitor client privilege with his trial counsel (Burke), and that several of his grounds should not be entertained. The motions were heard separately, without hearing the fresh evidence motion and the appeal proper.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a decision reported at 319 N.S.R.(2d) 163; 1010 A.P.R. 163, granted the accused's motion to amend his Notice of Appeal.

The Nova Scotia Court of Appeal, in a decision reported at 326 N.S.R.(2d) 232; 1033 A.P.R. 232, held that the accused had impliedly waived his solicitor client privilege with Burke, but only to the limited extent necessary to allow the Crown to explore and the court, if Burke's evidence was offered, to make reliable findings, respecting those pivotal facts that the accused had placed in issue. The court dismissed, as premature, the Crown's motion for an order dismissing the accused's Charter grounds of appeal. Consideration of the merits of the accused's grounds of appeal was for the panel of the court after the hearing of the fresh evidence motion.

The Nova Scotia Court of Appeal admitted the fresh evidence and granted leave to appeal. The court dismissed the appeal, holding that the sentence, while perhaps at the higher end, was not demonstrably unfit.

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Prisoners - Segregation - The accused pleaded guilty to attempted murder and, in accordance with a joint recommendation, was sentenced to 15 years' imprisonment - The accused appealed his sentence, submitting, inter alia, that the state's actions led to inaccurate and incomplete material in the statement of facts before the sentencing judge - This then resulted in mitigating circumstances not being presented, including his being subjected to cruel and unusual punishment, contrary to s. 12 of the Charter, while incarcerated - The Nova Scotia Court of Appeal noted that the accused was raising the Charter argument for the first time on appeal and, generally, new grounds on appeal were allowed only in exceptional circumstances - The court was not persuaded that the accused's failure to bring forward Charter arguments based on any segregation he experienced while incarcerated before sentencing was anything other than a tactical decision - The accused also appeared to be equating the fact of segregation with prima facie cruel and unusual punishment - However, segregation was not an automatic breach of s. 12 - It appeared that most of the accused's time in segregation before sentencing were sanctions for misbehaviour, such as fights and participation in a prison riot - This was disciplinary segregation - The remainder were instances where the accused claimed he was a bystander or not the instigator - It appeared that the institution imposed segregation for purposes of internal order, discipline and security - The court was reluctant to interfere with its judgment in those matters - This segregation was not cruel and unusual punishment - See paragraphs 25 to 41.

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Prisoners - Segregation - The accused pleaded guilty to attempted murder and, in accordance with a joint recommendation, was sentenced to 15 years' imprisonment - The accused appealed his sentence, submitting, inter alia, that the state's actions led to inaccurate and incomplete material in the statement of facts before the sentencing judge - This then resulted in mitigating circumstances not being presented, including his being subjected to cruel and unusual punishment contrary to s. 12 of the Charter while incarcerated - The Nova Scotia Court of Appeal noted that not everything was done in strict accordance with time lines in the legislation and subordinate legislation, and the accused had to wait for responses to his complaints - However, it appeared that, regarding the administrative segregation which followed the accused's sentencing, the institution officials made decisions which reflected their special knowledge and expertise with matters relating to institutional safety and security - Based on the record, the court could not agree that the segregation amounted to a breach of s. 12 - Further, the Court of Appeal might not be the proper forum to hear complaints of prison conditions post-sentence - The Crown had set out a number of other venues for redress that were available to the accused which were not disputed - See paragraphs 42 to 45.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Circumstances not constituting - [See both Civil Rights - Topic 3828.4 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See first Civil Rights - Topic 3828.4 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Nova Scotia Court of Appeal stated that "Fresh evidence may be received provided the criteria in Palmer v. The Queen, [1980] 1 S.C.R. 759 as modified by R. v. Lévesque, 2000 SCC 47 are satisfied. The evidence should generally not be admissible if, by due diligence, it could have been adduced at trial; however, this criteria will not be applied as strictly in criminal cases as in civil cases. The fresh evidence must be relevant and probative and, when taken with the other evidence adduced at trial, must be expected to have affected the result. The admissibility criteria are the same for appeals against sentence as they are for appeals from verdict: Lévesque at ¶ 22." - See paragraph 22.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused, Marriott, pleaded guilty to the attempted murder of Jason Hallett and, in accordance with a joint recommendation, was sentenced to 15 years' imprisonment - The accused appealed his sentence - He applied to introduce fresh evidence based on his disagreement with a number of points in the statement of facts that had been put to the sentencing judge - The points of disagreement were significant, and included the wording that: "Marriott made a plan to kill Jason Hallett." - The Nova Scotia Court of Appeal admitted the fresh evidence - The material had not been presented to the judge at the sentencing hearing because sentencing had proceeded by way of joint submission - While some of it might have been available then, the somewhat relaxed due diligence criteria in criminal proceedings had been satisfied - Further, the material was relevant and credible, and could have affected the result, namely the sentence imposed on the accused - See paragraphs 17 to 24.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - The Nova Scotia Court of Appeal stated that "While parity is one of the several sentencing principles, proportionality is the fundamental principle. Section 718.1 establishes that proportionality is most directly concerned with the gravity of the offence and the degree of responsibility of the offence." - See paragraph 112.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - The Nova Scotia Court of Appeal stated that "... what the parity principle calls for is a consideration of sentences imposed on 'similar offenders for similar offences committed in similar circumstances'. There is no constraint limiting the comparable sentences to those of any co-accused." - See paragraph 112.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See Criminal Law - Topic 5801.1 and Criminal Law - Topic 5806 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of accused - Plea bargain or joint submission - Effect of - The accused, Marriott, pleaded guilty to the attempted murder of Jason Hallett and, in accordance with a joint recommendation, was sentenced to 15 years' imprisonment - The accused appealed his sentence - He applied to introduce fresh evidence based on his disagreement with a number of points in the statement of facts that had been put to the sentencing judge - The points of disagreement were significant, and included the wording that: "Marriott made a plan to kill Jason Hallett." - The Nova Scotia Court of Appeal admitted the fresh evidence, but rejected the accused's submission regarding intent to kill - The court stated that "I accept trial counsel's evidence that he went over the elements of attempted murder with his former client. Having watched and heard Mr. Marriott testify, I would describe him as intelligent, articulate and combative. He withstood questioning without being intimidated. The appellant was originally charged with more than one count of attempted murder, and attended more than one preliminary inquiry in relation to major criminal charges. That such a forthright individual, faced with very serious consequences if found guilty, never thought to mention to his counsel that he did not mean to kill anyone, strikes me as preposterous. That the appellant would make this submission yet, at the same time, not claim ineffective assistance of counsel because his lawyer had not recognized or raised the requisite intent with him, only emphasizes how disingenuous his argument is." - See paragraphs 74 to 76.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of accused - Plea bargain or joint submission - Effect of - The Nova Scotia Court of Appeal held that sentences imposed by way of joint recommendations which fell outside of the range of appropriate sentences were not necessarily unfit - If a sentence recommended by both counsel was outside the range, the judge should give the joint submission "serious consideration" and "exercise caution before ignoring a sentence carefully negotiated by experienced counsel" - If the sentence was clearly unreasonable, the judge could only reject the joint submission if satisfied that there were no other compelling circumstances justifying, as in the public interest, a departure from an otherwise fit sentence - See paragraphs 94 to 115.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See second Criminal Law - Topic 5813 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - At age 18, the accused shot the victim in the wrist as he sat in a vehicle outside a children's hospital where he had gone to visit his newborn child - He fired at least three times, using a relatively high-powered handgun - At age 20, the accused pleaded guilty to attempted murder on the first day of trial - In accordance with a joint recommendation, he was sentenced to 15 years' imprisonment - Twenty-two prior convictions, all but one committed while a youth - The accused appealed his sentence and submitted that the sentencing judge erred because essential facts concerning the offence as supplied by the Crown were incomplete or wrong, so he did not receive due process - He also maintained that he did not have the requisite intent for attempted murder, suggested that certain particulars were overlooked, claimed breaches of his Charter rights, and argued that his sentence was demonstrably unfit - He did not allege ineffective assistance of counsel - He considered that a fit sentence was 10 years, less 4.8 years' credit, being his 2.4 years in remand at 2:1 (result, a 5.2 year sentence going forward from the date of his original sentence) - The Nova Scotia Court of Appeal dismissed the appeal, holding that the sentence, while perhaps at the higher end, was not demonstrably unfit - In coming to this conclusion, the court rejected the accused's submission, inter alia, that notwithstanding the joint recommendation, the trial judge failed to place sufficient emphasis on mitigating factors - See paragraphs 47 to 118.

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - [See second Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 22].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 2000 SCC 47, refd to. [para. 22].

R. v. Phillips (J.J.A.) (2006), 255 N.S.R.(2d) 6; 814 A.P.R. 6; 2006 NSCA 135, refd to. [para. 28].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 29].

R. v. Olson (1987), 22 O.A.C. 287; 38 C.C.C.(3d) 534 (C.A.), affd. [1989] 1 S.C.R. 296; 96 N.R. 223; 33 O.A.C. 369, refd to. [para. 34].

McArthur v. Regina Correctional Centre (Chief Executive Officer) et al. (1990), 83 Sask.R. 128; 56 C.C.C.(3d) 151 (Q.B.), refd to. [para. 35].

R. v. Chan (N.C.) (2005), 387 A.R. 123; 2005 ABQB 615, refd to. [para. 35].

R. v. Munoz (K.M.) (2006), 411 A.R. 257; 2006 ABQB 901, refd to. [para. 35].

Wu v. Canada (Attorney General), [2006] B.C.T.C. Uned. 970; 2006 BCSC 44, refd to. [para. 35].

R. v. Aziga (J.), [2008] O.T.C. Uned. F93 (Sup. Ct.), refd to. [para. 35].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2010), 475 A.R. 1; 2010 ABQB 6, refd to. [para. 35].

R. v. Farrell (C.P.), [2011] O.T.C. Uned. 2160; 2011 ONSC 2160, refd to. [para. 35].

R. v. Jerace (M.J.) (2011), 507 A.R. 337; 2011 ABQB 50, refd to. [para. 35].

Bacon v. Hawboldt, [2010] B.C.T.C. Uned. 805; 2010 BCSC 805, refd to. [para. 36].

Bacon v. Surrey Pretrial Services Centre - see Bacon v. Hawboldt.

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 50].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 51].

R. v. Starratt (J.R.) (2007), 251 N.S.R.(2d) 318; 802 A.P.R. 318; 2007 NSCA 21, refd to. [para. 51].

R. v. Markie (B.J.) (2009), 284 N.S.R.(2d) 352; 901 A.P.R. 352; 2009 NSCA 119, refd to. [para. 51].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102; 2000 NSCA 119, refd to. [para. 51].

R. v. Levesque (J.), [2012] O.A.C. Uned. 202; 2012 ONCA 231, refd to. [para. 54].

R. v. LeBlanc (J.A.) (2011), 305 N.S.R.(2d) 188; 966 A.P.R. 188; 2011 NSCA 60, refd to. [para. 89].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 89].

R. v. Nehass (M.D.A.), [2010] Yukon Cases Uned. 64; 2010 YKTC 64, refd to. [para. 91].

R. v. Sakebow (K.R.) (2012), 392 Sask.R. 80; 2012 SKQB 81, refd to. [para. 91].

R. v. C.L., [2012] O.A.C. Uned. 706; 2012 ONCA 835, refd to. [para. 91].

R. v. E.M.W. (2011), 308 N.S.R.(2d) 15; 976 A.P.R. 15; 2011 NSCA 87, refd to. [para. 96].

R. v. Oxford (M.) (2010), 299 Nfld. & P.E.I.R. 327; 926 A.P.R. 327; 2010 NLCA 45, refd to. [para. 98].

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344; 2003 NSCA 60, refd to. [para. 99].

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17; 757 A.P.R. 17; 2005 NSCA 137, refd to. [para. 100].

R. v. Sinclair (E.J.) (2003), 184 Man.R.(2d) 1; 318 W.A.C. 1; 2004 MBCA 48, refd to. [para. 101].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 111].

R. v. Bryan (A.C.) (2008), 272 N.S.R.(2d) 246; 869 A.P.R. 246; 2008 NSCA 119, refd to. [para. 111].

R. v. Smith (M.) (2012), 315 N.S.R.(2d) 257; 998 A.P.R. 257; 2012 NSCA 37, refd to. [para. 113].

R. v. Clarke (D.D.), [2010] O.T.C. Uned. 656; 2010 ONSC 656, refd to. [para. 113].

R. v. Guedez-Infante (J.A.), [2009] O.A.C. Uned. 728; 2009 ONCA 739, refd to. [para. 113].

R. v. Thompson (M.) (2009), 247 O.A.C. 196; 2009 ONCA 243, refd to. [para. 113].

R. v. Boissonneault (M.J.) (2012), 280 Man.R.(2d) 114; 548 W.A.C. 114; 2012 MBCA 40, refd to. [para. 113].

R. v. Situ (P.) et al., [2010] O.A.C. Uned. 544; 2010 ONCA 683, refd to. [para. 113].

R. v. Truelove (T.), [2010] O.A.C. Uned. 482; 2010 ONCA 608, refd to. [para. 113].

R. v. Chevers (C.) (2011), 282 O.A.C. 388; 2011 ONCA 569, refd to. [para. 113].

R. v. Brown (D.P.) (2009), 251 O.A.C. 264; 2009 ONCA 563, refd to. [para. 113].

R. v. Tan (C.) (2008), 268 O.A.C. 385; 2008 ONCA 574, refd to. [para. 114].

Counsel:

Elizabeth D. Cooper, for the appellant;

Mark Scott, for the respondent.

Stacey Gerrard, for Kevin Burke, Q.C.

This appeal was heard in Halifax, N.S., on October 2 and 3, 2013, by Oland, Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on March 25, 2014.