R. v. McGinn, (1989) 75 Sask.R. 161 (CA)

• Judge: Cameron, Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 29, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 75 Sask.R. 161 (CA);1989 CanLII 4784 (BS SC);1989 CanLII 4784 (SK CA);49 CCC (3d) 137;[1989] CarswellSask 359;75 Sask R 161

R. v. McGinn (1989), 75 Sask.R. 161 (CA)

MLB headnote and full text

Her Majesty the Queen (appellant) v. William John McGinn (respondent)

(No. 4159)

Indexed As: R. v. McGinn

Saskatchewan Court of Appeal

Cameron, Vancise and Sherstobitoff, JJ.A.

May 29, 1989.

Summary:

The accused was convicted of possession of cannabis marihuana for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. The trial judge fined the accused $300.00 and imposed two years' probation. The Crown appealed against sentence.

The Saskatchewan Court of Appeal allowed the appeal, set aside the sentence and substituted a term of six months' imprisonment. Vancise, J.A., dissenting in the result, would have allowed the appeal but would have imposed a sentence of 60 days' imprisonment plus one year's probation with 100 hours of community service work.

Criminal Law - Topic 5603

Punishments (sentence) - Sentence - Defined - Vancise, J.A., of the Saskatchewan Court of Appeal stated that the purpose of sentencing lay in the definition of sentencing - The judge set out such a definition - See paragraph 48.

Criminal Law - Topic 5603

Punishments (sentence) - Sentence - Defined - Elements of sentence - Vancise, J.A., of the Saskatchewan Court of Appeal stated that there are two distinct elements in sentencing: (1) punishing and (2) sentencing - See paragraph 49.

Criminal Law - Topic 5605

Punishments (sentence) - Alternative sanctions - Vancise, J.A., of the Saskatchewan Court of Appeal discussed the alternative sanctions to imprisonment - See paragraphs 64 to 75.

Criminal Law - Topic 5651

Punishments (sentence) - Imprisonment and parole - Imprisonment - General - Vancise, J.A., of the Saskatchewan Court of Appeal set out seven factors to be considered in determining whether a noncustodial sentence should be granted - See paragraph 75.

Criminal Law - Topic 5651

Punishments (sentence) - Imprisonment and parole - Imprisonment - General - Vancise, J.A., of the Saskatchewan Court of Appeal discussed the concept of incarceration, historically and particularly in relation to nonviolent offences - See paragraphs 42 to 47.

Criminal Law - Topic 5764

Punishments (sentence) - Particular offences - Narcotic offences - Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal stated that offences such as possession, possession for the purpose of, and trafficking in a narcotic (marihuana or hashish) in petty amounts did not warrant incarceration - See paragraphs 84 to 88, 95.

Criminal Law - Topic 5764

Punishments (sentence) - Particular offences - Narcotic offences - The Saskatchewan Court of Appeal generally discussed the sentencing of accused for trafficking in narcotics and possession for the purpose of trafficking - See paragraphs 15 to 17, 21, 36, 47, 76, 83 to 86, 95.

Criminal Law - Topic 5801

Sentencing - Uniformity - The Saskatchewan Court of Appeal discussed uniformity or disparity in sentencing, particularly respecting sentencing for trafficking in narcotics and possession for the purpose of trafficking - See paragraphs 11 to 12, 76 to 83.

Criminal Law - Topic 5830

Sentencing - Considerations - General - The Saskatchewan Court of Appeal set out the general considerations respecting sentencing - See paragraphs 6, 68.

Criminal Law - Topic 5830.8

Sentencing - Considerations - Drug offences - [See first Criminal Law - Topic 5764 above].

Criminal Law - Topic 5830.8

Sentencing - Considerations - Drug offences - [See second Criminal Law - Topic 5764 above].

Criminal Law - Topic 5831.6

Sentencing - Considerations - Sentence norm at time of offence - [See Criminal Law - Topic 5801 above].

Criminal Law - Topic 5832.1

Sentencing - Considerations - Integrity of administration of justice - Cameron, J.A., of the Saskatchewan Court of Appeal discussed the integrity of the administration of justice as a sentencing consideration, which entails upholding public confidence, proportionality and equity - See paragraphs 8 to 11.

Criminal Law - Topic 5833

Sentencing - Considerations - Deterrence - The Saskatchewan Court of Appeal discussed deterrence, both general and specific, as a sentencing consideration - Vancise, J.A., of the Court of Appeal discussed the effectiveness of custody as a deterrent - See paragraphs 7, 14, 50 to 63, 73.

Criminal Law - Topic 5878

Sentence - Possession of a narcotic - For the purpose of trafficking - A 24 year old single seasonal labourer was found in possession of scales and one ounce of cannabis marihuana, which was parcelled out in bags admittedly for the purpose of sale - Low-scale operation - Extensive record dating from 1980 - The trial judge imposed a fine of $300.00 plus two years' probation - The Saskatchewan Court of Appeal, noting that the trial judge failed to consider the elements of general deterrence and the integrity of the administration of justice, substituted a sentence of six months' imprisonment - See paragraphs 18 to 38.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - Vancise, J.A., of the Saskatchewan Court of Appeal referred to the role of a court of appeal in reviewing sentences - See paragraphs 70, 77 to 82.

Cases Noticed:

R. v. Morrissette (1971), 1 C.C.C.(2d) 307; 75 W.W.R.(N.S.) 644 (Sask. C.A.), refd to. [paras. 6, 68, 77].

R. v. Cope (1988), 59 Sask.R. 161 (C.A.), refd to. [para. 9].

R. v. Toth (1972), 5 C.C.C.(2d) 358 (Sask. C.A.), refd to. [para. 12].

R. v. Krett (1989), 74 Sask.R. 58 (C.A.), refd to. [paras. 15, 31].

R. v. Mack (1989), 90 N.R. 173; 44 C.C.C.(3d) 513 (S.C.C.), refd to. [para. 15].

R. v. Thompson (1987), 57 Sask.R. 268, consd. [para. 23].

R. v. Kuyek (1989), 72 Sask.R. 148, refd to. [para. 31].

R. v. Wood (1975), 1 A.R. 35; 26 C.C.C.(2d) 100, refd to. [para. 72].

R. v. Melnyk (1985), 45 Sask.R. 258, refd to. [para. 78].

R. v. Gordon (1984) 34 Sask.R. 232, refd to. [para. 78].

R. v. Natuson (1927), 49 C.C.C. 89 (Sask. C.A.), refd to. [para. 79].

R. v. Grady (1973), 5 N.S.R.(2d) 264, refd to. [para. 81].

R. v. Wenarchuk, [1982] 3 W.W.R. 643; 15 Sask.R. 240, refd to. [para. 82].

R. v. Ulrich (1989), 75 Sask.R. 26, refd to. [para. 82].

Statutes Noticed:

Criminal Law Reform Act, 1984 (Bill C-19), sect. 645(3)(f) [para. 70].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 3(2) [para. 15]; sect. 4 [paras. 15, 36]; sect. 4(2) [paras. 1, 39]; sect. 4(3) [para. 15].

Authors and Works Noticed:

Beccaria, Cesare, An Essay on Crime and Punishment (1764) [para. 49].

Blumstein, Cohen and Nagin, Study on Custody as Deterrence (1978; 7) [para. 56].

Canada Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), [para. 44], pp. 44 [para. 52]; 375 et seq [para. 87].

Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969) [paras. 45, 51], p. 309 [para. 51].

Cousineau, Legal Sanctions and Deterrence (1986) [para. 54]; p. viii [para. 59].

Fattah, Ezzat, Working Paper 11 [para. 58].

Fauteux Committee Report (1956) [para. 50].

Gaylin, Willard and Rothman, David, [para. 49].

Heads of Corrections, Incarceration: A Plea for Restraint [para. 71].

House of Commons Standing Committee (David Daubney, Chairman), A Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections, Taking Responsibility (1988) [para. 70]; p. 49 [para. 46].

Jackson and Ekstedt, Alternatives to Incarceration/Sentencing Option Programs: What are the Alternatives? [para. 71].

Law Reform Commission of Canada, Studies on Sentencing (1974c), p. 4 [para. 48].

Law Reform Commission of Canada, The Principles of Sentencing and Dispositions (1974a), p. x [para. 48].

Law Reform Commission of Canada, Working Paper 11 (1975) [paras. 42, 58].

Ouimet Report - see Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections.

Oxford Dictionary [para. 54].

Panel on Research and Deterrent and Incapacitating Effects (1978; 3) [para. 55].

Young, Alan, The Role of an Appellate Court in Developing Sentencing Guidelines, p. 85 [para. 73].

Counsel:

C. Toth, for the accused;

J. Janke, for the Crown.

This appeal was heard before Cameron, Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on May 29, 1989, when the following opinions were filed:

Cameron, J.A. - See paragraphs 1 to 38;

Vancise, J.A., dissenting in the result - See paragraphs 39 to 94;

Sherstobitoff, J.A. - See paragraphs 95 to 97.