R. v. P.S., (2015) 443 N.B.R.(2d) 201 (CA)

• Judge: Larlee, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 31, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 443 N.B.R.(2d) 201 (CA);2015 NBCA 74

R. v. P.S. (2015), 443 N.B.R.(2d) 201 (CA);

    443 R.N.-B.(2e) 201; 1159 A.P.R. 201

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]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. JA.006

Renvoi temp.: [2016] N.B.R.(2d) TBEd. JA.006

Her Majesty the Queen (appellant) v. P.S. (respondent)

(39-15-CA; 2015 NBCA 74)

Indexed As: R. v. P.S.

Répertorié: R. v. P.S.

New Brunswick Court of Appeal

Larlee, Quigg and Green, JJ.A.

December 17, 2015.

Summary:

Résumé:

On May 18, 2012, a vehicle driven by the accused aboriginal young person collided with another vehicle. The accused was seriously injured as were two people in the other vehicle. The accused's passenger was killed. On January 24, 2014, the accused was charged with offences, including impaired driving causing death and causing bodily harm. Trial dates were fixed for January 2015. Alleging a breach of her right to be tried within a reasonable time under ss. 7 and 11(b) of the Charter, the accused moved for a stay of proceedings.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2014), 432 N.B.R.(2d) 97; 1128 A.P.R. 97, denied the motion. The accused pled guilty to driving while having a blood alcohol level in excess of the legal limit causing death (s. 255(3.1) of the Criminal Code) (count one) and causing bodily harm (s. 255(2.1)) (counts two and three).

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2015), 434 N.B.R.(2d) 147; 1132 A.P.R. 147, imposed the following sentences: for count one, two years of custody and supervision (six months' closed custody, followed by 18 months' supervision) and for counts two and three, six months of custody and supervision (two months' closed custody, followed by four months' supervision) for each count, to be served concurrently and concurrent with the sentence for count one. The court also imposed a 10 year driving prohibition, commencing when the accused was released from custody. The accused was also ordered to provide DNA samples. The Crown and the accused both appealed the sentence.

The New Brunswick Court of Appeal allowed both the appeal and cross-appeal where the sentence resulted from an error in law. The court varied the sentence to a nine month custody and supervision order, apportioned as six months in custody, and three months of supervision in the community, followed by a 15 month probation order. The DNA sample order and 10 year driving prohibition remained in effect.

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 5864.1

Sentence - Impaired driving causing death - A vehicle driven by the accused aboriginal young person collided with another vehicle - The accused was seriously injured as were two people in the other vehicle - The accused's passenger was killed - The accused pled guilty to driving while having a blood alcohol level in excess of the legal limit causing death (Criminal Code, s. 255(3.1)) (count one) and causing bodily harm (s. 255(2.1)) (counts two and three) - Blood alcohol level of 158 to 182 mg% - The trial judge imposed the following sentences: for count one, two years' custody and supervision (six months' closed custody, followed by 18 months' supervision) and for counts two and three each, six months' custody and supervision (two months' closed custody, followed by four months' supervision), to be served concurrently with the sentence for count one - The court also imposed a 10 year driving prohibition - On appeal, the New Brunswick Court of Appeal held that the judge had imposed an illegal sentence by failing to equate the period of community supervision to one-half of the custodial sentence - Had the judge intended a six month period of closed custody, the period of supervision would automatically have been set at three months - The court varied the sentence to a nine month custody and supervision order, apportioned as six months' custody, and three months' supervision in the community, followed by a 15 month probation order - The DNA sample order and 10 year driving prohibition remained in effect.

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 8817.3

Young offenders - Decisions (incl. punishments) - Custody and supervision order (incl. breach and review) - [See Criminal Law - Topic 5864.1 ].

Cases Noticed:

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. 1].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 1].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 17].

R. v. R.E.W. (2006), 207 O.A.C. 184 (C.A.), refd to. [para. 17].

R. v. A.H.A., [2005] J.Q. No. 12623; 2005 QCCA 780, refd to. [para. 28].

R. v. I.R.N. (2010), 253 Man.R.(2d) 284; 2010 MBQB 137, refd to. [para. 33].

R. v. L.E.S. (2007), 306 Sask.R. 160 (Prov. Ct.), refd to. [para. 33].

R. v. M.A. (2012), 383 N.B.R.(2d) 157; 991 A.P.R. 157; 2012 NBPC 4, refd to. [para. 33].

LSPJA-1510, [2015] J.Q. No. 1394; 2015 QCCA 361, refd to. [para. 36].

R. v. C.D.S., [2009] A.R. Uned. 856; 2009 ABPC 395, refd to. [para. 37].

R. v. K.M.D. (2007), 302 Sask.R. 156; 2007 SKCA 125, refd to. [para. 37].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 42(2)(n) [para. 21].

Counsel:

Avocats:

Kathryn Gregory, for the appellant;

Martin A. Goguen, for the respondent.

This appeal was heard on March 31, 2015, by Larlee, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following decision for the court, in both official languages, on December 17, 2015.