R. v. A.N., 2011 NSCA 21

• Judge: MacDonald, C.J.N.S., Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 01, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 21;(2011), 300 N.S.R.(2d) 282 (CA)

R. v. A.N. (2011), 300 N.S.R.(2d) 282 (CA);

    950 A.P.R. 282

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. FE.057

A.N. (appellant) v. Her Majesty the Queen (respondent)

(CAC 310631; 2011 NSCA 21)

Indexed As: R. v. A.N.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland and Fichaud, JJ.A.

February 18, 2011.

Summary:

The Nova Scotia Supreme Court, in a decision reported at [2009] N.S.R.(2d) Uned. 88, found the accused guilty of indecent assault and rape in relation to his adopted daughter J., and indecent assault, rape and incest in relation to his birth daughter L. The assaults on J. began in 1970 when she was 12, and continued for six years. The assaults on L. began in 1974 when she was 12 and also continued for six years. The Crown and the accused's counsel each recommended a sentence of five years.

The Nova Scotia Supreme Court, in a decision reported at (2009), 279 N.S.R.(2d) 201; 887 A.P.R. 201, imposed a sentence of five years' imprisonment for the rape of J. and three years concurrent for the indecent assault of J., plus three years consecutive for the offence of incest in relation to L., three years concurrent for the rape of L. and two years concurrent for the indecent assault of L. The total sentence was eight years' incarceration. The court stated that it arrived at the global sentence taking into account the 77 days that the accused had spent on remand. The accused appealed from the sentence on the grounds that the sentencing judge (1) erred in principle by failing to give appropriate deference to the jointly recommended sentence of five years; (2) imposed a sentence that was demonstrably unfit or which contravened the parity and totality principles; and (3) erred in principle by failing to give appropriate credit for the accused's remand time.

The Nova Scotia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The accused was convicted of indecent assault and rape in relation to his adopted daughter J., and indecent assault, rape and incest in relation to his birth daughter L. - The assaults on J. began in 1970 when she was 12, and continued for six years - The assaults on L. began in 1974 when she was 12 and also continued for six years - The Crown and the accused's counsel each recommended a sentence of five years - The accused was sentenced to five years for his rape of J. and three years concurrent for his indecent assault of J., plus three years consecutive for his incest with L., with three years concurrent for his rape of L. and two years concurrent for his indecent assault of L. - The total sentence was eight years' incarceration - The sentencing judge stated that he arrived at the global sentence taking into account the 77 days that the accused had spent on remand - The aggravating factors listed by the judge included: the accused abused his children and his position of trust and authority in relation to them; the abuse took place over many years involving sexual touching, fellatio, cunnilingus, digital penetration and ultimately full sexual intercourse; and the sexual abuse of J. happened on a regular basis, happening hundreds of times - The judge considered as a mitigating factor that the accused did not have any other convictions - The accused appealed, arguing that the judge imposed a sentence that was demonstrably unfit or which contravened the parity and totality principles - The Nova Scotia Court of Appeal dismissed the appeal - The five and three year sentences were each fit and within the range - It was appropriate that the sentences for the offences involving L. be consecutive to the separate offences involving J. - There was nothing clearly unreasonable in the sentencing judge's conclusion that an eight year total was just and appropriate for the accused's aggregated criminal conduct - See paragraphs 26 to 37.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused was sentenced to a total of eight years' incarceration in relation to sexual offences committed against his two daughters - The Crown and the accused's counsel had each recommended a sentence of five years - The accused appealed, arguing that the sentencing judge erred by failing to give appropriate deference to the jointly recommended sentence - The accused submitted that his lack of legal representation at the trial handicapped the prospect of a negotiated plea and this merited higher deference from the sentencing judge to the joint recommendation - The Nova Scotia Court of Appeal dismissed the appeal - There was no authority cited for the notion of a constructive quid pro quo - Nor was there support in the judge's findings or the record for an inference that the accused would have pled guilty, had he been represented at the trial - The judge considered the jointly recommended sentence, then determined that five years was below the appropriate range - He told counsel of his concerns and gave them an opportunity to address them - There was no error of principle in the judge's treatment of the sentence recommendation - See paragraphs 17 to 25.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Nova Scotia Court of Appeal stated that "A joint sentence recommendation exchanged for a guilty plea carries more weight than mere coincident sentence recommendations after a trial" - See paragraph 21.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was sentenced to a total of eight years' incarceration in relation to sexual offences committed against his two daughters - The sentencing judge stated that he arrived at the global sentence taking into account the 77 days that the accused had spent on remand - The decision said nothing further to explain how the accused's remand time was figured into the sentence - The accused appealed, arguing that the sentencing judge erred in principle by failing to give appropriate credit for the accused's remand time - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "My interpretation of the judge's comments, in tandem with his reasons, is that he took account of the remand time with a 1 to 1 credit, leaving an eight year term of incarceration after that credit. This would be within his discretion and would display no error in principle. The judge's explanation of his use of the credit would have been better situated in his formal reasons. Under R. v. Sheppard, [2002] 1 S.C.R. 869, para. 55(10) and its companion R. v. Braich, [2002] 1 S.C.R. 903, paras. 41-42, item # 10, the court of appeal may fill the reasons breach with its own reasons. I would apply the same approach the judge expressed in his comments to counsel. Namely [the accused] should receive a 1 for 1 credit, instead of the 2 for 1 practice, because [the accused's] remand resulted from his failure to appear" - See paragraphs 38 to 42.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5852

Sentence - Rape - [See Criminal Law- Topic 5806.1 ].

Criminal Law - Topic 5856

Sentence - Indecent assault - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5863

Sentence - Incest - [See Criminal Law - Topic 5806.1 ].

Cases Noticed:

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17; 757 A.P.R. 17; 2005 NSCA 137, refd to. [para. 12].

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 16].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 16].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 16].

R. v. Markie (B.J.) (2009), 284 N.S.R.(2d) 352; 901 A.P.R. 352; 2009 NSCA 119, refd to. [para. 16].

R. v. Newman (S.J.) (2009), 286 Nfld. & P.E.I.R. 176; 883 A.P.R. 176; 2009 NLCA 32, refd to. [para. 22].

R. v. S. (2002), 208 N.S.R.(2d) 191; 652 A.P.R. 191; 2002 NSSC 221, refd to. [para. 27].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 28].

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; 105 C.C.C.(3d) 327, refd to. [para. 28].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 28].

R. v. Su (P.H.) (2000), 142 B.C.A.C. 306; 233 W.A.C. 306; 2000 BCCA 480, refd to. [para. 33].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 35].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 38].

R. v. Doiron (J.S.) (2005), 282 N.B.R.(2d) 81; 738 A.P.R. 81; 194 C.C.C.(3d) 468; 2005 NBCA 30, dist. [para. 38].

R. v. Ali (S.O.) (2009), 448 A.R. 369; 447 W.A.C. 369; 2009 ABCA 120, refd to. [para. 40].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 MBCA 64, refd to. [para. 41].

R. v. R.K.A. (2006), 384 A.R. 222; 367 W.A.C. 222; 2006 ABCA 82, refd to. [para. 41].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 42].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 42].

Counsel:

David J. Mahoney, for the appellant;

Mark Scott, for the respondent.

This appeal was heard at Halifax, N.S., on February 1, 2011, before MacDonald, C.J.N.S., Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on February 18, 2011.