R. v. Oickle (C.E.), (2015) 365 N.S.R.(2d) 257 (CA)

• Judge: Farrar, Bryson and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 01, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 365 N.S.R.(2d) 257 (CA);2015 NSCA 87

R. v. Oickle (C.E.) (2015), 365 N.S.R.(2d) 257 (CA);

    1151 A.P.R. 257

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.001

Her Majesty the Queen (appellant) v. Casey Elias Oickle (respondent)

(CAC 432842; 2015 NSCA 87)

Indexed As: R. v. Oickle (C.E.)

Nova Scotia Court of Appeal

Farrar, Bryson and Scanlan, JJ.A.

October 1, 2015.

Summary:

The 19 year old accused pleaded guilty to two counts of possession of a controlled substance for the purpose of trafficking (11 grams of cocaine and 23 morphine pills) and weapons offences (had a baton, dagger-style sword and replica handgun). The accused was sentenced to a two year conditional sentence for the weapons offences and a suspended sentence plus two years' probation for the drug offences. The Crown appealed the sentence for the drug offences on the ground that it was demonstrably unfit.

The Nova Scotia Court of Appeal allowed the appeal. A suspended sentence for the drug offences was demonstrably unfit. An appropriate sentence was two years' imprisonment. However, since a substantial portion of the conditional sentence had been served, the court stayed imposition of the two year sentence.

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The 19 year old accused was found in possession of 11 grams of cocaine and 23 morphine pills - In the accused's vehicle, within his reach, was a large baton, a dagger-style knife, and a replica .45 calibre pistol - The accused pleaded guilty to two counts of possession of a controlled substance for the purpose of trafficking and weapons offences - He was sentenced to a two year conditional sentence plus two years' probation for the weapons offences and a suspended sentence plus two years' probation for the drug offences - The conditional sentence provided for 12 months of house arrest, followed by six months with a curfew - The trial judge stated that incarceration was not imposed only because of the accused's young age, the fact that he sold drugs not for profit but to feed his drug addiction, and because of appropriate rehabilitative steps - The Nova Scotia Court of Appeal allowed the Crown's appeal of the drug offence sentence - The trial judge erred in failing to treat the presence of weapons in close proximity to the accused as an aggravating circumstance (Controlled Drugs and Substances Act, s. 10(2)) - Amendments to the Criminal Code in 2012 precluded a conditional sentence for these offences - It was not Parliament's intention to take away conditional sentences, but allow even more lenient sentences (suspended sentence) - A suspended sentence for the drug offences was demonstrably unfit, even for a first time offender classified as a petty retailer - Denunciation and deterrence were the paramount sentencing considerations for drug offences - An appropriate sentence was two years' imprisonment for each drug offence (concurrent) - However, since a substantial portion of the conditional sentence had been served (one year under house arrest), with one year left to be served plus two years' probation, the court decided that this was one of those exceptional cases where imposition of the two year sentence should be stayed.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. Scott (J.J.) (2013), 327 N.S.R.(2d) 256; 1036 A.P.R. 256; 2013 NSCA 28, refd to. [para. 21].

R. v. Steeves (M.W.) (2007), 261 N.S.R.(2d) 76; 835 A.P.R. 76; 2007 NSCA 130, refd to. [para. 21].

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. 21].

R. v. Greencorn (T.A.P.), [2014] N.S.R.(2d) Uned. 57; 2014 NSPC 10, refd to. [para. 24].

R. v. Hanabury, [1970] P.E.I.J. No. 9 (S.C.), refd to. [para. 25].

R. v. Crawford, [1980] O.J. No. 1047 (C.A.), refd to. [para. 25].

R. v. Dawe (G.M.) (2002), 210 N.S.R.(2d) 212; 659 A.P.R. 212; 2002 NSCA 147, refd to. [para. 32].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392; 2009 NSCA 59, refd to. [para. 32].

R. v. Butt (R.J.) (2010), 291 N.S.R.(2d) 376; 922 A.P.R. 376; 2010 NSCA 56, refd to. [para. 32].

R. v. Jamieson (F.O.) (2011), 310 N.S.R.(2d) 392; 983 A.P.R. 392; 2011 NSCA 122, refd to. [para. 32].

R. v. Carrillo (O.O.) (2015), 371 B.C.A.C. 182; 636 W.A.C. 182; 2015 BCCA 192, refd to. [para. 35].

R. v. Datt (R.) (2014), 364 B.C.A.C. 159; 625 W.A.C. 159; 2014 BCCA 484, refd to. [para. 36].

R. v. Oates (K.A.L.), [2015] B.C.T.C. Uned. 584; 2015 BCSC 584, refd to. [para. 37].

R. v. Fergusson (M.J.), [2014] B.C.A.C. Uned. 36; 2014 BCCA 347, refd to. [para. 37].

R. v. Cisneros (P.A.) (2014), 354 B.C.A.C. 82; 605 W.A.C. 82; 2014 BCCA 154, refd to. [para. 38].

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17; 757 A.P.R. 17; 2005 NSCA 137, refd to. [para. 39].

R. v. Phinn (J.) (2015), 357 N.S.R.(2d) 212; 1127 A.P.R. 212; 2015 NSCA 27, refd to. [para. 40].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 40].

R. v. Ramos (Z.M.) (2007), 214 Man.R.(2d) 280; 395 W.A.C. 280; 2007 MBCA 87, refd to. [para. 41].

R. v. MacDonald (E.) (2014), 353 N.S.R.(2d) 59; 1115 A.P.R. 59; 2014 NSCA 102, refd to. [para. 51].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 51].

R. v. Best (C.A.) (2012), 315 N.S.R.(2d) 243; 998 A.P.R. 243; 2012 NSCA 34, refd to. [para. 53].

R. v. Smickle (L.) (2014), 317 O.A.C. 196; 2014 ONCA 49, refd to. [para. 54].

Counsel:

David Schermbrucker, for the appellant;

Kenneth Greer, for the respondent.

This appeal was heard on May 19, 2015, at Halifax, N.S., before Farrar, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On October 1, 2015, Scanlan, J.A., delivered the following judgment for the Court of Appeal.