R. v. McDonald (S.E.), 2015 ABCA 108

• Judge: Fraser, C.J.A., Watson and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 18, 2015
• Citations: 2015 ABCA 108;(2015), 599 A.R. 300

R. v. McDonald (S.E.) (2015), 599 A.R. 300; 643 W.A.C. 300 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.144

Her Majesty the Queen (respondent) v. Shane Emil McDonald (appellant)

(1403-0198-A; 2015 ABCA 108)

Indexed As: R. v. McDonald (S.E.)

Alberta Court of Appeal

Fraser, C.J.A., Watson and Wakeling, JJ.A.

March 19, 2015.

Summary:

The accused pleaded guilty to 36 offences which were predominantly property-related offences of theft, fraud, impersonation and identity theft, possession and trafficking in stolen credit cards, as well as failing to appear and breach of probation. He was sentenced to 51 months' imprisonment, less 30 months' credit for pretrial custody. He appealed the sentence.

The Alberta Court of Appeal allowed the appeal and sentenced the accused to time served.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term - Totality principle - The accused pleaded guilty to 36 offences which were predominantly property-related offences of theft, fraud, impersonation and identity theft, possession and trafficking in stolen credit cards, as well as failing to appear and breach of probation - After 10 months of custody, he was released on strict bail conditions to attend the Edmonton Drug Treatment Community Restoration Court (the Drug Court) - He completed eight months of the Edmonton Drug Treatment Community Restoration Court Program (the Program) at which point he suffered a significant head injury - He stopped attending the Drug Court - The Drug Court terminated his participation in the Program on July 10, 2013 - By July 19, 2013, he was re-offending - By August 31, 2013, he was back in custody - He had 121 prior convictions, many of which were of the same ilk - Most were committed to obtain drug money - The sentencing judge sentenced the accused to 51 months' imprisonment, less 30 months' credit for pretrial custody - The Alberta Court of Appeal substituted a sentence of time served - The sentencing judge erred in disregarding the accused's legitimate attempts at sobriety - The judge also erred in ignoring the influence of the head injury - Although the injury's effects did not justify the accused's breaching conduct, it did shed light on his failure to attend the Program - The accused's failings had to be understood in light of his severely limited cognitive ability and addiction - The judge failed to give adequate credit to both the guilty plea and the genuine and ongoing attempts at rehabilitation under the Program - The judge further erred in not considering the totality principle - The total sentence was unfit - A lengthy custodial sentence would not assist the prospects of rehabilitation - A lengthier sentence was not necessary to satisfy specific deterrence - Future recidivism would be decided by whether the accused could conquer his addictions and maintain a law-abiding life - See paragraphs 50 to 58.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5804 and second and third Criminal Law - Topic 5849.16 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - The Alberta Court of Appeal stated that "Individual deterrence is largely premised on the extent to which an offender possesses, at the relevant time, the capacity for rational cost-benefit analysis of future actions. Related to this is whether the life options for the offender are such that the desire to avoid imprisonment would stop the offending." - See paragraph 26.

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - The Alberta Court of Appeal stated that "The objective of rehabilitation still remains even where an offender's lengthy criminal history, coupled with a durable addiction, means the hope of effective rehabilitation may be fading ... Depending on the circumstances, deterrence may yield to a reasonable chance of rehabilitation, particularly in the context of certain property offences ... For an offender seized by addictions, the offender may, as part of the rehabilitative process, need and benefit from training or treatment that helps the offender acquire or improve the means to live in society in a law-abiding manner. As this Court recently noted in R v Wesslen, 2015 ABCA 74 at para 41, 'where rehabilitation is possible, the long term interests of society are better protected by [ensuring] that an offender's underlying problems, which prompted his deviant behaviour, are corrected'. ... Of course, rehabilitation will only be a significant factor in sentencing where there is evidence of a sincere attempt to turn one's life around beyond a mere statement of intent: ..." - See paragraphs 27 and 28.

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - At issue was the impact an offender's participation in a drug court program had on sentencing the offender - The Crown essentially asserted that in order to vindicate the drug treatment court system, it was necessary to deal with all offenders who failed the program as if they had not attempted it - The Alberta Court of Appeal rejected the assertion - The court made the following general points: (1) a court should not assume from an offender's prior criminal record that the offender's motives for participating in the program are suspect; (2) the conditions of release under the programs in Alberta justified a court's taking those conditions into account in determining the extent to which compliance with them ought to mitigate sentence; (3) a just sentence for a drug-addicted offender who made an effort to comply with a drug treatment program but failed should be less than what the offender would have received had he or she never tried; (4) taking into account partial completion of a program in mitigation of sentence would not jeopardize the program's integrity; and (5) an approach that did not treat partial completion as a mitigating factor ran the very real risk of punishing the offender for failing the drug treatment program as opposed to the offence - The court discussed each point - See paragraphs 34 to 49.

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (inc. fraud, theft, etc.) - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5915

Sentence - Personation - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5921

Sentence - Being at large or failing to appear - [See Criminal Law - Topic 5804 ].

Cases Noticed:

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. 14].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 14].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 14].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 40 Alta. L.R.(5th) 199; 2010 ABCA 363, refd to. [para. 14].

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

R. v. Dingwall (D.D.) (2005), 361 A.R. 306; 339 W.A.C. 306; 2005 ABCA 14, refd to. [para. 15].

R. v. Nguyen (T.M.) (2008), 257 B.C.A.C. 38; 432 W.A.C. 38; 234 C.C.C.(3d) 67; 2008 BCCA 252, refd to. [para. 15].

R. v. Smith, 2008 CarswellQue 6840; 2008 QCCA 1391, refd to. [para. 15].

R. v. Cardinal, 2012 CarswellQue 10406; 2012 QCCA 1838, refd to. [para. 15].

R. v. Thiel (D.K.), [2006] A.R. Uned. 58; 2006 CarswellAlta 502; 2006 ABCA 142, refd to. [para. 20].

R. v. Chahine (M.) (2006), 401 A.R. 6; 391 W.A.C. 6; 2006 ABCA 247, refd to. [para. 20].

R. v. Mayer (M.E.) (2006), 384 A.R. 183; 367 W.A.C. 183; 2006 ABCA 149, refd to. [para. 20].

R. v. Sagoo (I.S.) (2010), 474 A.R. 190; 479 W.A.C. 190; 2010 ABCA 29, refd to. [para. 20].

R. v. Zolis (J.C.), [2007] A.R. Uned. 142; 2007 CarswellAlta 287; 2007 ABCA 81, refd to. [para. 20].

R. v. Haertel (K.W.), [2006] A.R. Uned. 443; 2006 CarswellAlta 1175; 2006 ABCA 249, refd to. [para. 20].

R. v. Bradley (E.) (2004), 357 A.R. 234; 334 W.A.C. 234; 2004 ABCA 362, refd to. [para. 20].

R. v. Hawkins (R.K.) (2008), 331 N.B.R.(2d) 129; 849 A.P.R. 129; 2008 NBCA 40, refd to. [para. 27].

R. v. Glickman (D.) (2011), 307 B.C.A.C. 181; 519 W.A.C. 181; 2011 BCCA 293, refd to. [para. 27].

R. v. Bay (B.B.), [2011] B.C.A.C. Uned. 104; 2011 CarswellBC 1926; 2011 BCCA 297, refd to. [para. 27].

R. v. Wesslen (A.J.) (2015), 599 A.R. 159; 643 W.A.C. 159; 2015 ABCA 74, refd to. [para. 27].

R. v. Carriere, 1988 CarswellAlta 639 (C.A.), refd to. [para. 28].

R. v. Brookwell (D.P.) (2012), 533 A.R. 367; 557 W.A.C. 367; 2012 ABCA 226, refd to. [para. 35].

R. v. Koma (C.D.), [2008] A.R. Uned. 133; 2008 CarswellAlta 1355; 2008 ABCA 206, refd to. [para. 41].

R. v. Unruh (L.E.) (2012), 399 Sask.R. 66; 552 W.A.C. 66; 2012 SKCA 72, refd to. [para. 41].

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 41].

R. v. May (T.G.) (2012), 533 A.R. 182; 557 W.A.C. 182; 2012 ABCA 213, refd to. [para. 53].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 53].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 53].

R. v. Taylor (M.A.) (2010), 262 Man.R.(2d) 43; 507 W.A.C. 43; 2010 MBCA 103, refd to. [para. 53].

R. v. Holloway (P.S.) (2014), 572 A.R. 121; 609 W.A.C. 121; 2014 ABCA 87, refd to. [para. 54].

R. v. Ranger (R.S.) (2014), 569 A.R. 39; 606 W.A.C. 39; 2014 ABCA 50, refd to. [para. 54].

R. v. Nishikawa (R.N.) (2011), 505 A.R. 63; 522 W.A.C. 63; 2011 ABCA 39, refd to. [para. 54].

Authors and Works Noticed:

Ashworth, Andrew, Sentencing and Criminal Justice (5th Ed. 2010), pp. 273, 274 [para. 54].

Bakht, Natasha, Problem Solving Courts as Agents of Change (2006), 50 Crim L.Q. 224, pp. 231, 232 [para. 36].

Bentley, Paul, Canada's First Drug Treatment Court (2000), 31 C.R.(5th) 257, p. 260 [para. 30].

Boldt, Richard C., Rehabilitative Punishment and the Drug Treatment Court Movement (1998), 76 Wash. U.L.Q. 1205, pp. 1245, 1246 [para. 33].

Chiodo, Anida L., Sentencing Drug-Addicted Offenders and the Toronto Drug Court (2002), 45 Crim. L.Q. 53, pp. 75 to 98 [para. 30].

Franco, Celinda, Drug Courts: Background, Effectiveness and Policy Issues for Congress (October 12, 2010), generally [para. 30].

Hora, Peggy F., Schma, William G. and Rosenthal, John T.A., Therapeutic Jurisprudence and the Drug Treatment Court Movement (1999), 74 Notre Dame L. Rev. 349, pp. 454 to 456 [para. 30].

Listwan, Shelley J., Shaffer, Deborah K. and Latessa, Edward J., The drug court movement: recommendations for improvements, Corrections Today 64:5 (2002), p. 52 [para. 32].

Manson, Allan, Some Thoughts on Multiple Sentences and the Totality Principle: Can We Get It Right? (2013), 55:4 C.J.C.C.J. 481, p. 482 [para. 54].

Miller, Eric J., Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism (2004), 65 Ohio St. L.J. 1479, pp. 1526 to 1528 [para. 33].

United States of America, Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use (2011), http://www.drugpolicy.org/drugcourts, p. 16 [para. 33].

Counsel:

J.R. Russell, for the respondent;

M.T. Duckett, Q.C., for the appellant.

This appeal was heard on February 18, 2015, by Fraser, C.J.A., Watson and Wakeling, JJ.A., of the Alberta Court of Appeal. The following reserved reasons for judgment of Fraser, C.J.A., and Watson, J.A., were filed for the court, at Edmonton, Alberta, on March, 19, 2015.