R. v. S.G.T., (2015) 466 Sask.R. 123 (QB)

Judge:Gunn, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:January 12, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 466 Sask.R. 123 (QB);2015 SKQB 11
 
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R. v. S.G.T. (2015), 466 Sask.R. 123 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.041

Her Majesty The Queen v. S.G.T.

(2013 Q.B.C. No. 2; 2015 SKQB 11)

Indexed As: R. v. S.G.T.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

January 12, 2015.

Summary:

The accused, in a judgment reported [2006] Sask.R. Uned. 89, was convicted of sexually assaulting his adopted daughter. The accused sought a conditional sentence. The Crown sought imprisonment for two years less a day.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2006), 287 Sask.R 224, sentenced the accused to 18 months' imprisonment plus 18 months' probation. The court dismissed the Crown's application under s. 490.012(4) of the Criminal Code for the accused to be registered under the Sex Offender Information Registration Act. The accused appealed against conviction and sentence.

The Saskatchewan Court of Appeal, in a judgment reported (2008), 314 Sask.R. 44; 435 W.A.C. 44, allowed the conviction appeal and ordered a new trial. The trial judge erred in admitting and relying upon an e-mail apology the accused sent to his estranged wife, which the judge construed as an admission of sexual misconduct, without first conducting a voir dire. The Crown appealed.

The Supreme Court of Canada, Fish and Binnie, JJ., dissenting, in a judgment reported (2010), 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14, allowed the appeal, quashed the order directing a new trial and remitted the matter to the Court of Appeal to consider the remaining grounds of appeal, which were: (1) whether fresh evidence was admissible on the issue of incompetent or ineffective representation by counsel; (2) whether the trial judge erred in assessing credibility or interpreting the evidence; (3) whether the trial judge erred in rejecting a conditional sentence; and (4) whether 18 months' imprisonment was demonstrably unfit.

The Saskatchewan Court of Appeal, in a judgment reported (2011), 366 Sask.R. 90; 506 W.A.C. 90, dismissed the application to admit fresh evidence and dismissed the appeal against conviction and sentence. The accused subsequently pleaded guilty to giving contradictory evidence (Criminal Code, s. 271) on his appeal from conviction. On appeal, the accused admitted to giving false evidence at trial respecting the e-mail apology. He alleged that his lawyer counselled him to give the false testimony. The Crown sought one year's imprisonment. The accused sought a conditional sentence.

The Saskatchewan Court of Queen's Bench held that a conditional sentence was inappropriate. The court sentenced the accused to 12 months' imprisonment.

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 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5900 ].

Criminal Law - Topic 5900

Sentence - Perjury and giving contradictory evidence - The accused pleaded guilty to giving contradictory evidence (Criminal Code, s. 271) on his appeal from conviction for sexually assaulting his step-daughter - The accused, on appeal, testified that he gave false testimony at trial respecting an e-mail apology sent to the step-daughter's mother - The accused alleged that his false trial testimony was counselled by his lawyer, who incompetently represented him - The accused admitted that the ultimate decision to lie in court was his and that he knew it was wrong to do so - The Crown sought one year's imprisonment - The accused sought a conditional sentence - The accused had community support and operated two businesses - He completed his sexual assault sentence - However, he continued to argue that the sexual assault allegations were fabricated and that his lawyer was to blame for the lies, even though the lawyer was exonerated - The lawyer was subjected to one of the most serious allegations that could be made against a lawyer - The Law Society expended over $25,000, and the lawyer was forced to expend significant time, to successfully defend his professional reputation - The Saskatchewan Court of Queen's Bench rejected a conditional sentence as inappropriate given the seriousness of the offence which struck at the heart of the administration of justice - The court stated that "There is a belief and an expectation that witnesses tell the truth. Successful convictions for perjury or giving contradictory evidence are rare. But when they occur, it is important in maintaining the confidence of the public in our system of justice that those who lie under oath are punished." - The court sentenced the accused to 12 months' imprisonment.

Cases Noticed:

R. v. Desnomie (L.A.) (2005), 275 Sask.R. 167; 365 W.A.C. 167; 2005 SKCA 148, refd to. [para. 28].

R. v. Turner (1981), 14 Sask.R. 321 (C.A.), refd to. [para. 30].

R. v. Pelly (R.J.) (2006), 279 Sask.R. 252; 372 W.A.C. 252; 2006 SKCA 60, refd to. [para. 35].

R. v. Rawn (H.A.-M.) (2012), 294 O.A.C. 261; 2012 ONCA 487, refd to. [para. 40].

R. v. T.J.F. (2011), 366 Sask.R. 217; 506 W.A.C. 217; 2011 SKCA 20, refd to. [para. 45].

R. v. Marshall (G.D.) (1999), 244 A.R. 384; 209 W.A.C. 384; 1999 ABCA 147, refd to. [para. 46].

R. v. Bermudez, 2013 ONCJ 113, refd to. [para. 47].

R. v. Mendieta (E.), [2011] O.T.C. Uned. 1411; 2011 ONSC 1411 (Sup. Ct.), refd to. [para. 47].

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. 51].

Counsel:

James Fitz-Gerald, for the Crown;

Bob Hrycan, for the accused.

This matter was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 12, 2015.

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