Nash v. R.,

• Jurisdiction: New Brunswick
• Judge: Robertson, Bell and Quigg, JJ.A.
• Neutral Citation: 2009 NBCA 7
• Citation: 2009 NBCA 7,(2009), 340 N.B.R.(2d) 320 (CA),340 NBR (2d) 320,240 CCC (3d) 421,[2009] NBJ No 17 (QL),(2009), 340 NBR(2d) 320 (CA),340 NBR(2d) 320,[2009] N.B.J. No 17 (QL),340 N.B.R.(2d) 320
• Date: 14 October 2008
• Court: Court of Appeal (New Brunswick)

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320 (CA);

    340 R.N.-B.(2e) 320; 871 A.P.R. 320

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.B.R.(2d) TBEd. FE.012

Renvoi temp.: [2009] N.B.R.(2d) TBEd. FE.012

Adam Wade Nash (appellant) v. Her Majesty the Queen (respondent)

(61-08-CA; 2009 NBCA 7)

Indexed As: R. v. Nash (A.W.)

Répertorié: R. v. Nash (A.W.)

New Brunswick Court of Appeal

Robertson, Bell and Quigg, JJ.A.

January 29, 2009.

Summary:

Résumé:

The accused received a beating from a brother. An hour later the accused found the brother and killed him by shooting him twice in the head with a hunting rifle. A jury found the accused guilty of second degree murder. The trial judge fixed the period of parole ineligibility at 20 years. The accused appealed the sentence.

The New Brunswick Court of Appeal allowed the appeal. The trial judge erred by holding that the accused's failure to express remorse following his conviction was an aggravating factor that supported a decision to extend the period of parole ineligibility. The trial judge also erred in holding that 20 years of ineligibility fell within the "acceptable range" mandated by the parity principle. The court fixed the period of parole ineligibility at 12 years.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The New Brunswick Court of Appeal stated that "[w]hen it comes to sentencing, the only difference between persons guilty of first as opposed to second degree murder is the period during which the offender remains ineligible for parole. While both offenders receive mandatory life sentences, those convicted of first degree murder must normally wait 25 years before becoming eligible. On the other hand, the period of ineligibility for those guilty of second degree murder ranges from 10 to 25 years. It is s. 745.4 of the Criminal Code which provides the trial or sentencing judge with the discretion to delay the offender's eligibility for parole beyond the 10 year minimum. Not only must that discretion be exercised in accordance with the three criteria set out in s. 745.4, the judge must consider the general sentencing principles set out in ss. 718, 718.1 and 718.2, together with the Supreme Court's decision in R. v. Shropshire" - See paragraph 1.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - At issue was the proper period of parole ineligibility for an accused convicted of second degree murder - The New Brunswick Court of Appeal stated that "the truly difficult cases are those in which the offender ... does not pose a realistic threat of reoffending and, therefore, the sentencing objectives of specific deterrence, rehabilitation and public safety are not in play (e.g. R. v. Latimer ...). Hence, sentencing judges are left with the difficult task of deciding whether to extend the period of parole ineligibility with a view to promoting the sentencing objectives of general deterrence, retribution and continuing denunciation, knowing full well that a year of parole ineligibility is a 365-day year, that is to say, one that is not subject to a reduction through the application of the statutory release and early parole provisions of other federal legislation. Sentencing judges are also aware that if they err in concluding that an offender does not pose a threat to public safety, the final decision on parole eligibility rests with the National Parole Board and, thus, the public interest is still protected. However, should the period of parole ineligibility be set too high, there is nothing the Parole Board can do to correct the sentencing judge's error. The offender must rely on the 'faint hope clause' found in s. 745.6(1) or the royal prerogative of mercy found in s. 749." - See paragraph 4.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The New Brunswick Court of Appeal stated that "[w]hen it comes to the issue of parole eligibility in the context of second degree murder, the [Criminal] Code singles out three specific criteria: (1) the character of the offender; (2) the nature of the offence and the circumstances surrounding its commission; and (3) the recommendation, if any, of the jury. Ignoring for the moment the criteria set out in s. 745.4 of the Criminal Code, the task of fixing the minimum period for parole ineligibility requires consideration of virtually all of the factors that are examined in the typical sentencing process. However, there is a subtle difference. When it comes to parole ineligibility, denunciation and deterrence cannot be considered paramount factors." - See paragraphs 43 and 44 - The court considered what the jurisprudence typically considered aggravating and mitigating factors - See paragraphs 45 to 52.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - At issue was the proper period of parole ineligibility for an accused convicted of second degree murder - The New Brunswick Court of Appeal stated that "s. 718.2(b) of the Criminal Code goes on to prescribe that the sentence ultimately imposed must respect the parity principle: the sentence must be similar to sentences imposed on similar offenders for similar offences in similar circumstances, the so-called 'acceptable range' ... The role of an appellate court is to ensure that the trial judge did not err in principle and that the sentence is not 'demonstrably unfit'. Part of the task is to ensure that the parity principle is respected and, indeed, the Court of Appeal is ultimately responsible for deciding what constitutes an 'acceptable range'. The one constant that exists when applying s. 745.4 is that all of the offenders are guilty of the same offence: 'second degree murder'. This leaves for consideration the task of isolating cases in which offenders have similar profiles and the murders involve similar circumstances. At times, it may be helpful for trial and sentencing judges to isolate those cases that bear a close resemblance with respect to key facts ... more often than not, trial and sentencing judges work with three time frames when fixing the period of parole ineligibility: (1) 10 to 15 years; (2) 15 to 20 years; and (3) 20 to 25 years. In practice, the third time frame is reserved for the 'worst of offenders' in the 'worst of cases'. The first is reserved for those offenders for whom the prospects of rehabilitation appear good and little would be served by extending the period of parole ineligibility other than to further the sentencing objectives of denunciation and retribution. The second time frame is reserved for those who fall somewhere in between the first and third. Obviously, these time frames are not cast in cement and represent a basic starting point for analysis." - See paragraphs 53 and 54.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - At issue was the proper period of parole ineligibility for an accused convicted of second degree murder - The New Brunswick Court of Appeal stated that "[v]iewed collectively, the above cases support the following general observations. Those offenders who have no previous criminal record involving violent criminal acts are less likely to see the period of parole ineligibility extended beyond the 10 to 15 year range. Those offenders with a criminal record that involve violence or other serious criminal conduct are more likely to have the period of ineligibility extended to somewhere in the vicinity of 15 to 20 years. In cases involving multiple murders or extreme brutality committed by offenders with a violent past the period of parole ineligibility may exceed 20 years. But still, you have to factor in other considerations such as age and whether the murder was committed during the commission of another crime. Again, I emphasize that these are general observations and meant only to provide general guidance and a focal point for future analysis. To this point, the analysis fails to acknowledge the New Brunswick jurisprudence. Most of it is the product of the Court of Queen's Bench. There are 19 reported decisions involving second degree murder and parole ineligibility. Approximately, one half of the cases fix the period of parole ineligibility at between 10 to 15 years. The remaining half lead one to believe that the present upper range is from 17 to 20 years. Interestingly, trial and sentencing judges in this Province have exercised restraint in not going beyond the 20 year mark and yet there is no legal impediment to extending the ineligibility period in the proper case." - See paragraphs 59 and 60.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - At issue was the proper period of parole ineligibility for an accused convicted of second degree murder - The New Brunswick Court of Appeal stated that "[i]n summary, and subject to a few exceptions, the jurisprudence makes it clear that the 'upper range' of parole ineligibility has been traditionally reserved for the 'worst of offenders' in the 'worst of cases'. One might wish to speak of the upper range in terms of 20 to 25 years. The jurisprudence from outside this Province supports that understanding. In New Brunswick, trial and sentencing judges have been reticent to go outside the 17 to 20 year range. In either scenario, however, one is dealing with a person who has committed a brutal, if not sadistic, killing in circumstances where the offender has a previous criminal record that embraces other violent acts. In fixing the period of parole ineligibility, it is not so much a question of promoting the sentencing objectives of denunciation and deterrence as it is to promote public safety and to instill public confidence in the administration of justice. These are the cases where the evidence supports the belief that the offender's chances of rehabilitation pale in comparison to the risk of recidivism and public safety." - See paragraph 68.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - A jury found the 40 year old accused guilty of second degree murder after he shot his brother in the head twice with a hunting rifle - The two brothers' young nephew was seated next to the victim and witnessed the ordeal - The killing occurred shortly after the accused suffered a beating at the hands of the victim and was fuelled by alcohol and a festering relationship marked by animosity and physical altercations between the accused and the victim - The accused had been drinking heavily the night before and the day of the shooting - The accused was involved in a lengthy standoff with the police before surrendering - He fired some shots, but not at the police - The accused was married and had two young children - He was of aboriginal descent - Seasonally employed as a logger - As a child, he was abandoned by his mother and abused by his father - He was the youngest of 10 children but spent most of his life in foster homes as did his siblings - His relationship with all of his male siblings was characterized as "a perpetual familial conflict" - Left school in grade nine - He had alcohol-related problems - Positive pre-sentence report process - He expressed "some" remorse - Had a prior criminal record including four convictions for assault between 1984 and 1997 - The trial judge extended the parole ineligibility period to 20 years - The New Brunswick Court of Appeal allowed the accused's appeal - The trial judge erred in holding that the accused's failure to express remorse following his conviction was an aggravating factor and in concluding that this case came within the upper range (20 to 25 years) - The court held that this case fell within the 10 to 15 year range and fixed the period of parole ineligibility at 12 years - The accused's disregard for the safety of his nephew and police was an aggravating circumstance - The fact that the accused had established himself in his community and had had no convictions for violent offences over the past 11 years undermined the Crown's argument that the accused had a propensity for violence and was a future threat to public safety - See paragraphs 69 to 83.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See fourth Criminal Law - Topic 5670 ].

Criminal Law - Topic 5847

Sentencing - Considerations - Remorse of accused - A jury found the accused guilty of second degree murder - The trial judge fixed the period of parole ineligibility at 20 years - The New Brunswick Court of Appeal allowed an appeal, holding that the trial judge erred in principle by holding that the accused's failure to express remorse following his conviction was an aggravating factor that supported a decision to extend the period of parole ineligibility - An offender's continuing right to silence based on a plea of not guilty did not evaporate once the jury returned a verdict of guilty - After discussing the issue of remorse, the court concluded: "[i]n brief, the law of remorse may be reduced to the following general propositions. A failure to express remorse following a conviction is not an aggravating factor unless the case comes within the narrow exception outlined in the jurisprudence. The failure of an offender to express remorse following a guilty plea will be treated as an aggravating factor unless there is a rational explanation for the failure. More often than not the explanation will be self-evident. The expression of genuine remorse is always regarded as a mitigating factor." - See paragraphs 2 and 29 to 40.

Criminal Law - Topic 5881

Sentence - Murder - [See all Criminal Law - Topic 5670 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The New Brunswick Court of Appeal stated that "[i]n brief, this Court has stated that appellate intervention is not justified unless it can be shown that the judge erred in principle or in law. If the sentencing judge applies the wrong principles or test or omits to consider all of the relevant factors or misapprehends the evidence, appellate intervention is warranted. Finally, a sentence is 'clearly unreasonable' where it is inordinately long or short and it will only reach this mark if it is a substantial and marked departure from the sentence customarily imposed for similarly situated offenders committing similar crimes. The latter task is embraced by the parity principle prescribed in s. 718.2(b) [of the Criminal Code]" - See paragraph 16.

Droit criminel - Cote 5670

Peines (sentence) - Emprisonnement et libération conditionnelle - Libération conditionnelle - Période d'inadmissibilité - [Voir Criminal Law - Topic 5670 ].

Droit criminel - Cote 5806.1

Détermination de la peine - Généralités - Harmonisation des peines - Généralités - [Voir Criminal Law - Topic 5806.1 ].

Droit criminel - Cote 5847

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Remords de la part du prévenu - [Voir Criminal Law - Topic 5847 ].

Droit criminel - Cote 5881

Peine - Meurtre - [Voir Criminal Law - Topic 5881 ].

Droit criminel - Cote 6201

Détermination de la peine - Appels - Modification de la peine - Pouvoirs de la Cour d'appel (y compris la norme de révision) - [Voir Criminal Law - Topic 6201 ].

Cases Noticed:

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, refd to. [para. 1].

R. v. Legere (1988), 89 N.B.R.(2d) 361; 226 A.P.R. 361 (C.A.), refd to. [para. 3].

R. v. Cheddesingh (D.M.), [2004] 1 S.C.R. 433; 319 N.R. 94; 186 O.A.C. 184; 2004 SCC 16, refd to. [para. 3].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 3].

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

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 4].

R. v. Mafi (K.) (2000), 133 B.C.A.C. 221; 217 W.A.C. 221; 142 C.C.C.(3d) 449; 2000 BCCA 135, refd to. [para. 5].

R. v. Doyle (1991), 108 N.S.R.(2d) 1; 294 A.P.R. 1 (C.A.), refd to. [para. 12].

R. v. Walton (1988), 92 N.B.R.(2d) 254; 236 A.P.R. 254 (C.A.), refd to. [para. 12].

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), refd to. [para. 15].

R. v. Hawkins (R.K.) (2008), 331 N.B.R.(2d) 129; 849 A.P.R. 129; 2008 NBCA 40, refd to. [para. 15].

R. v. Black (J.) (1990), 110 N.B.R.(2d) 208; 276 A.P.R. 208 (T.D.), affd. (1991), 117 N.B.R.(2d) 178; 295 A.P.R. 178 (C.A.), refd to. [para. 18].

R. v. Beaulieu (G.) (2005), 284 N.B.R.(2d) 356; 742 A.P.R. 356; 2005 NBQB 221 (T.D.), refd to. [para. 18].

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. 23].

R. v. Cormier (D.) (1999), 209 N.B.R.(2d) 289; 535 A.P.R. 289 (C.A.), refd to. [para. 25].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 27].

R. v. Valentini (D.) et al. (1999), 118 O.A.C. 1; 43 O.R.(3d) 178 (C.A.), refd to. [para. 31].

R. v. Caulfield (N.B.) (1999), 124 B.C.A.C. 287; 203 W.A.C. 287; 1999 BCCA 190, refd to. [para. 31].

R. v. Muhammad (Y.A.) (2004), 202 B.C.A.C. 41; 331 W.A.C. 41; 187 C.C.C.(3d) 14; 2004 BCCA 396, refd to. [para. 31].

R. v. Ambrose (B.A.) (2000), 261 A.R. 345; 225 W.A.C. 345; 2000 ABCA 125, refd to. [para. 31].

R. v. Clarke (T.W.) (2001), 202 Nfld. & P.E.I.R. 309; 608 A.P.R. 309; 2001 NFCA 35, refd to. [para. 31].

R. v. Upson (D.M.) (2001), 194 N.S.R.(2d) 87; 606 A.P.R. 87; 2001 NSCA 89, refd to. [para. 31].

R. v. C.B.H. (2008), 336 N.B.R.(2d) 307; 862 A.P.R. 307; 2008 NBCA 76, refd to. [para. 32].

R. v. E.S. (1997), 191 N.B.R.(2d) 3; 488 A.P.R. 3 (C.A.), refd to. [para. 37].

R. v. Paterson (D.R.) (2001), 149 B.C.A.C. 56; 244 W.A.C. 56; 151 C.C.C.(3d) 1; 2001 BCCA 11, refd to. [para. 48].

R. v. Hanscom (D.A.) (1996), 172 N.B.R.(2d) 29; 439 A.P.R. 29 (C.A.), refd to. [para. 51].

R. v. Cerra (S.P.) (2004), 206 B.C.A.C. 168; 338 W.A.C. 168; 192 C.C.C.(3d) 78; 2004 BCCA 594, refd to. [para. 51].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 53].

R. v. Muise (D.R.) (No. 4) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81 (C.A.), refd to. [para. 53].

R. v. Olsen (L.) and Podniewicz (M.) (1999), 116 O.A.C. 357 (C.A.), refd to. [para. 55].

R. v. Dewald (T.O.) (2001), 144 O.A.C. 352; 54 O.R.(3d) 1 (C.A.), refd to. [para. 55].

R. v. Cousins (J.D.) (2004), 234 Nfld. & P.E.I.R. 195; 696 A.P.R. 195; 2004 NLCA 14, refd to. [para. 57].

R. v. Strongman (K.) et al. (2007), 425 A.R. 200; 418 W.A.C. 200; 2007 ABCA 413, refd to. [para. 57].

R. v. Hammond (K.J.) (2000), 143 B.C.A.C. 126; 235 W.A.C. 126; 2000 BCCA 428, refd to. [para. 58].

R. v. Cruz (C.A.) (1998), 106 B.C.A.C. 184; 172 W.A.C. 184; 124 C.C.C.(3d) 157 (C.A.), refd to. [para. 58].

R. v. Cunningham, 1994 CanLII 3922 (N.B.T.D.), refd to. [para. 61].

R. v. Mailloux (P.J.) (1989), 99 N.B.R.(2d) 356; 250 A.P.R. 356 (C.A.), refd to. [para. 61].

R. v. Lewis (1987), 81 N.B.R.(2d) 324; 205 A.P.R. 324 (T.D.), refd to. [para. 61].

R. v. Mailman (1988), 84 N.B.R.(2d) 407; 214 A.P.R. 407 (C.A.), refd to. [para. 61].

R. v. Gillespie (1988), 85 N.B.R.(2d) 142; 217 A.P.R. 142 (C.A.), refd to. [para. 61].

R. v. McIntyre (M.) (1993), 135 N.B.R.(2d) 266; 344 A.P.R. 266 (C.A.), refd to. [para. 61].

R. v. Curtis (S.) (1993), 133 N.B.R.(2d) 297; 341 A.P.R. 297 (C.A.), refd to. [para. 62].

R. v. Melanson (S.A.) et al. (2003), 265 N.B.R.(2d) 284; 695 A.P.R. 284; 2003 NBQB 371 (T.D.), refd to. [para. 63].

R. v. Mazerolle (W.), [2002] N.B.R.(2d) (Supp.) No. 37; 2002 NBBR 141 (T.D.), refd to. [para. 63].

R. v. Savoie (N.) (1998), 209 N.B.R.(2d) 378; 535 A.P.R. 378 (T.D.), refd to. [para. 65].

R. v. Chedore (J.R.) (1997), 187 N.B.R.(2d) 372; 478 A.P.R. 372 (C.A.), refd to. [para. 65].

R. v. Stewart, [1999] N.B.J. No. 415 (Q.B.), refd to. [para. 66].

R. v. Eagles (J.) (2005), 284 N.B.R.(2d) 370; 742 A.P.R. 370; 2005 NBQB 206 (T.D.), refd to. [para. 66].

R. v. Sheehan (K.L.) (2008), 336 N.B.R.(2d) 204; 862 A.P.R. 204; 2008 NBQB 268 (T.D.), refd to. [para. 66].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 44 O.R.(3d) 263 (C.A.), refd to. [para. 79].

R. v. Trochym (S.) (2004), 188 O.A.C. 330; 71 O.R.(3d) 611 (C.A.), refd to. [para. 82].

R. v. McCormack (S.E.) (1995), 83 O.A.C. 73 (C.A.), refd to. [para. 82].

R. v. Muir (F.) (1995), 80 O.A.C. 7 (C.A.), refd to. [para. 82].

R. v. Wristen (A.N.) (1999), 127 O.A.C. 314; 47 O.R.(3d) 66 (C.A.), refd to. [para. 82].

R. v. Lenius (K.C.) (2007), 299 Sask.R. 139; 408 W.A.C. 139; 2007 SKCA 65, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(b) [para. 3]; sect. 745 [para. 26].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), p. 391 [para. 73].

Counsel:

Avocats:

Graham J. Sleeth, Q.C., for the appellant;

Cameron H. Gunn, for the respondent.

This sentence appeal was heard on October 14, 2008, by Robertson, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following reasons for judgment of the court in both official languages was delivered by Robertson, J.A., on January 29, 2009.