R. v. Morin (I.), (1995) 134 Sask.R. 120 (CA)

• Judge: Bayda, C.J.S., Tallis, Cameron, Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 25, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 134 Sask.R. 120 (CA);1995 CanLII 3999 (SK CA);[1995] 9 WWR 696;101 CCC (3d) 124;42 CR (4th) 339;134 Sask R 120;[1995] 4 CNLR 37

R. v. Morin (I.) (1995), 134 Sask.R. 120 (CA);

    101 W.A.C. 120

MLB headnote and full text

Her Majesty The Queen (appellant) v. Ivan Morin (respondent) and Metis Society of Saskatchewan Inc. and Federation of Saskatchewan Indian Nations (intervenors)

(Appeal File No. 6013)

Indexed As: R. v. Morin (I.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis, Cameron, Sherstobitoff and Jackson, JJ.A.

August 25, 1995.

Summary:

The accused pleaded guilty to a charge of robbery with violence.

The Saskatchewan Court of Queen's Bench, in a decision reported at 114 Sask.R. 2, established a sentencing circle and after considering the sentence suggested by the circle, imposed a sentence of 18 months' combined imprisonment and electronic monitoring, plus an additional 18 months' probation upon certain conditions. The Crown appealed on the grounds that the sentence was not fit and that the sentencing judge erred in holding a sentencing circle.

The Saskatchewan Court of Appeal, Bayda, C.J.S. and Jackson, J.A., dissenting, allowed the appeal. After considering, inter alia, the 18 months of combined im­prison­ment and electronic monitoring which the accused had already served, as well as time spent on probation, the court imposed a sentence of 15 months' imprison­ment in addition to time already served on remand, imprisonment, electronic monitoring and probation.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing circle - The Saskatchewan Court of Appeal discussed when it was appropriate for a sentencing circle to be established - See para­graphs 6 to 18 and 86 to 97.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing circle - The Saskatchewan Court of Appeal stated that "[s]ince there is no provision in the Criminal Code for the use of sentencing circles, it is implicit in their use ... that when sentencing circles are used, the power and duty to impose a fit sentence remains vested exclusively in the trial judge. If a sentencing circle is used, and it recommends a sentence which is not a fit sentence, the judge is duty bound to ignore the recommendation to the extent that it varies from what is a fit sentence. And the duty of this court in reviewing the fitness of a sentence under s. 687 [Crimi­nal Code] is the same" - See paragraph 19.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing circle - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - [See first and second Criminal Law - Topic 5809.2 and Crim­inal Law - Topic 5855 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused pleaded guilty to a charge of robbery with violence - Prior record of 34 criminal offences, including violent offences - 226 days in remand - The Saskatchewan Court of Queen's Bench established a sentencing circle and after considering the sentence suggested by the circle, imposed 18 months' combined imprisonment and elec­tronic monitoring, plus an additional 18 months' probation with certain require­ments - The Saskatchewan Court of Appeal allowed a Crown appeal from the sentence, holding that in the circumstances rehabilitation should not have taken pre­cedence over other sentencing factors - After considering, inter alia, the 18 months' imprisonment and electronic mon­itoring which the accused had already served as well as time spent on probation, the court imposed a sentence of 15 months' imprisonment in addition to time already served on remand, imprisonment, elec­tronic monitoring and probation.

Cases Noticed:

R. v. Joseyounen, [1995] 6 W.W.R. 438 (Sask. Prov. Ct.), consd. [para. 7].

R. v. Cheekinew (L.J.) (1993), 108 Sask.R. 114; 80 C.C.C.(3d) 143 (Q.B.), refd to. [para. 10].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, consd. [para. 13].

R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.), consd. [para. 13].

R. v. Johnson (1994), 91 C.C.C.(3d) 21 (Yuk. Terr. C.A.), consd. [para. 17].

R. v. Wenarchuk, [1982] 3 W.W.R. 643; 15 Sask.R. 240 (C.A.), refd to. [para. 22].

R. v. Manjanatha (C.P.) (1995), 131 Sask.R. 316; 95 W.A.C. 316 (C.A.), refd to. [para. 22].

R. v. McGinn (1989), 75 Sask.R. 161 (C.A.), consd. [para. 24].

R. v. Zimmer (1991), 89 Sask.R. 281; 63 C.C.C.(3d) 61 (C.A.), consd. [para. 25].

R. v. Curley, [1984] N.W.T.R. 281 (C.A.), refd to. [para. 26].

R. v. Naqitarvik, [1986] N.W.T.R. 128; 69 A.R. 1 (N.W.T.C.A.), leave to appeal dismissed (1986), 67 N.R. 160; 70 A.R. 80 (S.C.C.), refd to. [para. 26].

R. v. Stonechild (J.) (1995), 128 Sask.R. 210; 85 W.A.C. 210 (C.A.), refd to. [para. 34].

Morin v. Saskatoon Correctional Centre (Director) et al. (1993), 112 Sask.R. 289 (Q.B.), refd to. [para. 46].

R. v. Moses (1992), 71 C.C.C.(3d) 347 (Yuk. Terr. Ct.), refd to. [para. 85].

Authors and Works Noticed:

Gosse, R., Henderson, J. Youngblood and Carter, R., Continuing Poundmaker & Riel's Quest (1994), pp. 246 to 247 [para. 82]; 267 [para. 90].

Quigley, Some Issues in Sen­tencing Abo­riginal Offenders, in Continuing Pound­maker and Riel's Quest, p. 267 [para. 90].

Ross, Rupert, Duelling Paradigms? West­ern Criminal Justice versus Aboriginal Community Healing, in Continuing Poundmaker and Riel's Quest (1994), pp. 246 to 247 [para. 82].

Zedner, Lucia, Reparation and Retribution: Are They Reconcilable?, Modern Law Rev. (March 1994), vol. 57, No. 2, gen­erally [para. 89].

Counsel:

C. Snell, Q.C., for the Crown;

K. Healy, for the respondent;

R. Piché, W. Wardell, Q.C., and D. Worme, for the Metis Society, inter­venor;

D. Knoll, for the Federation of Saskatche­wan Indian Nations, intervenor.

This appeal was heard on April 29, 1994, before Bayda, C.J.S., Tallis, Cameron, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on August 25, 1995, including the following opinions:

Sherstobitoff, J.A. (Tallis and Cameron, JJ.A., concurring) - see paragraphs 1 to 53;

Bayda, C.J.S., dissenting (Jackson, J.A., concurring) - see paragraphs 54 to 113.