R. v. McDonald (D.), [2016] A.R. TBEd. JN.035

• Judge: Schutz, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: May 09, 2016
• Jurisdiction: Nunavut
• Citations: [2016] A.R. TBEd. JN.035;2016 NUCA 4

R. v. McDonald (D.), [2016] A.R. TBEd. JN.035

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JN.035

Her Majesty the Queen (respondent) v. Doreen McDonald (appellant)

(21-15-004-CAP; 2016 NUCA 4)

Indexed As: R. v. McDonald (D.)

Nunavut Court of Appeal

Schutz, J.A.

May 31, 2016.

Summary:

Following a finding that the appellant had breached her Conditional Sentence Order (CSO), the sentencing judge terminated the 18-month CSO and committed the appellant to custody for the remaining five months. The appellant appealed.

The Nunuavut Court of Appeal allowed the appeal. The hearing judge committed four errors: 1) failing to consider any enumerated option under s. 742.6(9) of the Criminal Code, other than terminating the CSO; 2) failing to permit defence counsel to make sentencing submissions; 3) failing to consider Gladue factors relevant to a fit sentence; and 4) failing to grant any credit for the period of time during which the appellant's CSO was suspended pre-hearing. Fifty days remained left to be served by the appellant under the CSO. The appellant would receive credit for those 50 days, as time served when the appellant's CSO was suspended prior to the breach hearing. Accordingly, the appellant had completed her CSO.

Criminal Law - Topic 5720.2

Punishments (sentence) - Conditional sentence - Evidence and proof - [See Criminal Law - Topic 5720.6 ].

Criminal Law - Topic 5720.6

Punishments (sentence) - Conditional sentence - Breach (incl. ''collapsing'' of) - Following a finding that the appellant had breached her Conditional Sentence Order (CSO), the sentencing judge terminated the 18-month CSO and committed the appellant to custody for the remaining five months - The appellant appealed - The Nunuavut Court of Appeal allowed the appeal - The hearing judge committed four errors: 1) failing to consider any enumerated option under s. 742.6(9) of the Criminal Code, other than terminating the CSO; 2) failing to permit defence counsel to make sentencing submissions; 3) failing to consider Gladue factors relevant to a fit sentence; and 4) failing to grant any credit for the period of time during which the appellant's CSO was suspended pre-hearing - Fifty days remained left to be served by the appellant under the CSO - The appellant would receive credit for those 50 days, as time served when the appellant's CSO was suspended prior to the breach hearing - Accordingly, the appellant had completed her CSO.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of the accused - Right of accused to be heard - [See Criminal Law - Topic 5720.6 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See Criminal Law - Topic 5720.6 ].

Counsel:

B. Flight, for the respondent;

G. Magee, for the appellant.

This appeal was heard on May 9, 2016, before Schutz, J.A., of the Nunavut Court of Appeal, who delivered the following memorandum of judgment on May 31, 2016.