R. v. Night (L.C.), 2008 SKPC 169

• Judge: Harradence, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 16, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKPC 169;(2008), 329 Sask.R. 197 (PC)

R. v. Night (L.C.) (2008), 329 Sask.R. 197 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JA.028

Her Majesty the Queen v. Larry Charles Night

(Information Nos. 24348461, 24343449, 2429368; 2008 SKPC 169)

Indexed As: R. v. Night (L.C.)

Saskatchewan Provincial Court

Harradence, P.C.J.

December 16, 2008.

Summary:

The first nations accused pleaded guilty to two counts of breach of probation (consuming alcohol while ordered not to) and assault. Counsel jointly recommended 60 days for the breaches of probation.

The Saskatchewan Provincial Court considered s. 718.2(e) of the Criminal Code, inter alia, and imposed a suspended sentence and a nine month probation order on each charge, concurrent.

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - The Saskatchewan Provincial Court stated that "to sentence an alcoholic to a probation order that requires him not to drink likely leads to an inevitable breach and therefore is merely setting him up for a breach. This is not the purpose of probation. An abstinence clause should not be included in a probation order, if there is compelling evidence that the accused is addicted to alcohol, without careful consideration. ... I place great emphasis on the individualized approach to sentencing. I also remain firmly of the view that where a determination has been made that probation is appropriate, to include an abstinence clause, where the evidence establishes that the individual is addicted to alcohol, requires a focused inquiry." - See paragraphs 15 and 16.

Criminal Law - Topic 5731

Punishments (sentence) - Probation or probation order - Breach of - The 19 year old first nations accused pleaded guilty to two counts of breach of probation (consuming alcohol while ordered not to) and assault (kicked his brother in the head while police were present) - The Crown submitted that the accused had an alcohol problem - The accused expressed a desire to receive treatment - Counsel jointly recommended 60 days for the breaches of probation - The Saskatchewan Provincial Court imposed a suspended sentence and a nine month probation order on each charge, including the assault, concurrent - To sentence this accused to custody would be demonstrably unfit and contrary to the long-term public interest - The 60 days recommended on the two breach charges was more akin to a tariff sentence than an individualized sentence - The evidence did not satisfy the court that the offender should be separated from society (Criminal Code, s. 718.2(e)) - His unlawful conduct could be denounced and he, as well as other offenders, could be deterred without incarceration - Probationary conditions specific to this accused and these circumstances would have the effect of assisting his rehabilitation, as well as requiring him to provide reparations to the community and promoting in him a sense of responsibility.

Criminal Law - Topic 5799.4

Punishments (sentence) - Prohibition orders - Respecting alcohol and drugs - [See Criminal Law - Topic 5723 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - [See Criminal Law - Topic 5723 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5731 ].

Cases Noticed:

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; 2000 SCC 5, refd to. [para. 4, footnote 1].

R. v. Kasakan (E.B.) (2006), 275 Sask.R. 306; 365 W.A.C. 306; 2006 SKCA 14, refd to. [para. 5, footnote 3].

R. v. Webster (D.) (2001), 207 Sask.R. 257; 247 W.A.C. 257; 2001 SKCA 72, refd to. [para. 5, footnote 3].

R. v. J.C.N. (2005), 269 Sask.R. 183; 357 W.A.C. 183; 2005 SKCA 64, refd to. [para. 5, footnote 3].

R. v. B.L. (2008), 314 Sask.R. 276; 435 W.A.C. 276; 2008 SKCA 122, refd to. [para. 5, footnote 3].

R. v. Chamakese (M.) (2006), 285 Sask.R. 182; 378 W.A.C. 182; 2006 SKCA 90, refd to. [para. 5, footnote 3].

R. v. Thunderchild, 2007 SKQB 369, refd to. [para. 5, footnote 3].

R. v. Ahenakew (D.K.) (2007), 303 Sask.R. 229; 2007 SKPC 108, affd. (2008), 326 Sask.R. 309; 2008 SKQB 447, folld. [para. 15, footnotes 8, 9].

R. v. Hall (B.C.), [2005] Man.R.(2d) Uned. 74; 2005 MBCA 103, refd to. [para. 17, footnote 11].

R. v. Morrissette (1971), 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 19, footnote 13].

R. v. Drouin (M.G.) (1994), 125 Sask.R. 49; 81 W.A.C. 49 (C.A.), refd to. [para. 19, footnote 13].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 22, footnote 16].

R. v. Ahenakew (C.D.) (2001), 207 Sask.R. 169; 247 W.A.C. 169; 2001 SKCA 71, refd to. [para. 22, footnote 16].

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 29, footnote 18].

Authors and Works Noticed:

Ferris, Thomas Wayne, Sentencing: Practical Approaches (2005), p. 235 [para. 30, footnote 19].

Counsel:

Glen Jacques & Suzanne Reid, for the Crown;

Cameron Schmunk, for the accused.

This case was heard by Harradence, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on December 16, 2008.