R. v. McKinnon (V.A.),

• Judge: C,Hembroff,Hughes
• Neutral Citation: 2005 ABCA 8
• Citation: (2005), 361 A.R. 271 (CA),2005 ABCA 8,361 AR 271,38 Alta LR (4th) 23,192 CCC (3d) 494,[2005] AJ No 12 (QL),[2005] A.J. No 12 (QL),(2005), 361 AR 271 (CA),361 A.R. 271
• Date: 06 December 2004
• Court: Court of Appeal (Alberta)

R. v. McKinnon (V.A.) (2005), 361 A.R. 271 (CA);

    339 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JA.071

Her Majesty the Queen (appellant) v. Valerie Anne McKinnon (respondent)

(0403-0270-A3; 2005 ABCA 8)

Indexed As: R. v. McKinnon (V.A.)

Alberta Court of Appeal

Côté, J.A., Hembroff and Hughes, JJ.(ad hoc)

January 11, 2005.

Summary:

The accused pleaded guilty to false pretences. The sentencing judge imposed a conditional sentence of two years less a day and ordered the accused to pay restitution. The Crown appealed the sentence.

The Alberta Court of Appeal allowed the appeal, quashed the conditional sentence and imposed a sentence of 12 months' imprisonment.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Alberta Court of Appeal stated that "A sentencing judge need not take time to prove the obvious when giving reasons. However, when a point is contested between counsel, or is surprising, counterintuitive, intricate, not routinely met in sentencing, or involves several steps of reasoning, the judge's statutory duty to give reasons dictates explanation." - See paragraph 30.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - The Alberta Court of Appeal stated that a conditional sentence "is simply a tool, a means to an end ... Its mere pronouncement has little function. Without more, it is but mild denunciation. If it imposes community service, or other strict conditions, it can punish and deter. The main point of a conditional sentence order is in its effects. It can impose mandatory conditions for rehabilitation, such as taking a specific course of medical or psychological treatment or medication. It can enable the offender to earn money for restitution. With the right offender, and the right offence, it can educate and deter." - See paragraphs 27 and 28.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - A sentencing judge had to be satisfied that serving a sentence in the community would not endanger the safety of the community (Criminal Code, s. 742.1(b)) - The Alberta Court of Appeal stated that such danger to the community was not limited to physical assaults or dangers to life and limb; it included financial danger - Further, safety to the community could include a small group or even one person - See paragraph 39.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - The Alberta Court of Appeal stated that failure of a prior conditional sentence order "is a very serious factor weighing against another conditional sentence" - See paragraph 51.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused worked as the bookkeeper for a small builder - Over approximately six months, she forged her employer's signature on 20 cheques for a total of over $61,000 - Most of the cheques were payable to her - The accused pleaded guilty to false pretences - She payed $40,000 in restitution - She had several prior convictions for false pretences, theft and fraud - She expressed no remorse - Apart from the guilty plea and the restitution, there were no mitigating circumstances - The sentencing judge imposed a conditional sentence of two years less a day and ordered the accused to pay additional restitution - The Alberta Court of Appeal allowed the Crown's appeal - The serious aggravating factors, the seriousness of the crime, its continued and calculated manner, the failure of previous sentences (especially a prior conditional sentence) and the moderate nature of the mitigating factors, mandated jail time - Neither specific deterrence, general deterrence, denunciation nor rehabilitation was likely without jail on these facts - The court considered the time served on the conditional sentence and imposed a further 12 months' imprisonment.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The Alberta Court of Appeal stated that "It is unusual to give a conditional sentence order for a serious crime where individual deterrence is still needed (indeed, often legally impossible because of danger to the community)." - See paragraph 49.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See second Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5720.5

Punishments (sentence) - Conditional sentence - Conditions of - The Alberta Court of Appeal stated that "A conditional sentence is intended to punish, and should generally include punitive conditions restricting the offender's liberty. House arrest or a strict curfew should be the norm, and the idea is to have tight controls, absent some specific reason ... The conditions should be crafted to address the actual problem with active efforts, and be adapted to the particular offender. If no real effort goes into its design, it is tokenism, and if it is done in the abstract, it is often a sham" - See paragraph 82.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See Courts - Topic 583 ].

Criminal Law - Topic 5869

Sentence - False pretences - [See first Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Bracegirdle (S.) (2004), 354 A.R. 313; 329 W.A.C. 313; 2004 ABCA 252, refd to. [para. 13].

R. v. Reid (W.) (2004), 194 B.C.A.C. 18; 317 W.A.C. 18; 2004 YKCA 4, refd to. [para. 13].

R. v. Pierce (M.) (1997), 97 O.A.C. 253; 32 O.R.(3d) 321 (C.A.), refd to. [para. 13].

R. v. McEachern (1978), 42 C.C.C.(2d) 189 (Ont. C.A.), refd to. [para. 13].

R. v. Dobis (M.) (2002), 157 O.A.C. 83 (C.A.), refd to. [para. 13].

R. v. Bogart (M.) (2002), 162 O.A.C. 347 (C.A.), leave to appeal denied [2003] 1 S.C.R. vi; 312 N.R. 192; 181 O.A.C. 198; 2002 SCC 398, refd to. [para. 13].

R. v. Clarke (D.) (2004), 189 O.A.C. 331 (C.A.), refd to. [para. 13].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 21].

R. v. Bunn (T.A.), [2000] 1 S.C.R. 183; 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256, refd to. [para. 21].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 121 C.C.C.C.(3d) 504; 1998 ABCA 7, refd to. [para. 27].

R. v. Ambrose (B.A.) (2000), 271 A.R. 164; 234 W.A.C. 164; 2000 ABCA 264, refd to. [para. 46].

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. 94].

Counsel:

S.D. Hughson, Q.C., for the appellant;

M.R. Bloos, Q.C., for the respondent.

This appeal was heard on December 6, 2004, by Côté, J.A., Hembroff and Hughes, JJ.(ad hoc), of the Alberta Court of Appeal. The decision of the court was delivered by Côté, J.A., on January 11, 2005, at Edmonton, Alberta.