R. v. Sabourin (E.G.), (2009) 460 A.R. 118 (NWTCA)

• Judge: Johnson, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: July 03, 2009
• Jurisdiction: Northwest Territories
• Citations: (2009), 460 A.R. 118 (NWTCA)

R. v. Sabourin (E.G.) (2009), 460 A.R. 118 (NWTCA);

      462 W.A.C. 118

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.020

Her Majesty The Queen (respondent) v. Eugene Gordon Sabourin (appellant)

(A-1-AP-2009000004; 2009 NWTCA 6)

Indexed As: R. v. Sabourin (E.G.)

Northwest Territories Court of Appeal

Johnson, Watson and Slatter, JJ.A.

July 3, 2009.

Summary:

The accused pleaded guilty to two counts of uttering death threats, assault with a weapon (hairbrush) and using a firearm while committing the offence of uttering a threat. The accused and Crown agreed to a global sentence of 30 months' imprisonment, less credit for a net 15.5 months' pre-trial custody. They did not agree on the amount of credit. The accused sought 2:1 credit. The Crown sought 1:1 credit. The trial judge sentenced the accused to 30 months' imprisonment plus two years' probation, less 18 months' credit for the 15.5 months' pretrial custody (1.2:1 basis). The stated reason for not giving 2:1 credit was that the accused committed the offences while on judicial interim release and probation, which led to him not getting bail. The accused appealed, submitting that the trial judge erred in not giving him 2:1 credit.

The Northwest Territories Court of Appeal dismissed the appeal. The judge's rationale for giving less than 2:1 credit was incorrect, but in the end the sentence imposed was not unfit.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was sentenced to a global sentence of 30 months' imprisonment after pleading guilty to two counts of uttering death threats, assault with a weapon (hairbrush) and using a firearm while committing an offence - Although the Crown and accused agreed that 30 months was appropriate, the accused sought 2:1 credit for 15.5 months' pretrial custody and the Crown sought 1:1 credit - The trial judge gave the accused 18 months' credit (1.2:1) for pretrial custody, resulting in a net sentence of 18 months' imprisonment - The stated reason for not giving 2:1 credit was that the offences were committed while the accused was on judicial interim release and probation, which led to him not getting bail - The Northwest Territories Court of Appeal dismissed the appeal - The judge's rational for not giving 2:1 credit was incorrect - The judge appeared to give less credit for pretrial custody because of pre-offence conduct that was also considered an aggravating factor in imposing sentence - That would constitute an impermissible double counting (i.e., punishing accused for same conduct by increasing sentence and reducing pretrial custody) - However, even with the error, the effective sentence imposed was not unfit and the court declined to vary the global sentence - See paragraphs 1 to 25.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Northwest Territories Court of Appeal stated that "the reasoning used in calculating the effect of pre-sentence custody in most of the case law appears to be that a trial judge would determine what would have been the fit sentence had the offender been sentenced on the date his custody commenced, and would then deduct the functional effect of the pre-sentence custody from that sentence. The ratio of 2 for 1 which was adopted in Wust [SCC] reflected several considerations: (a) the fact that serving prisoners get remission or other credit either under the Corrections and Conditional Release Act ... or the Prisons and Reformatories Act ... for time served on the sentence, (b) the fact that remand custody circumstances are frequently 'dead time' in the sense that there may be few or no helpful programs or treatment made available to the prisoner during the remand time, and (c) the circumstances in remand centres may well be more crowded or difficult than in correctional institutions or penitentiaries ... The trial judge would have discretion as to credit in light of the fact-sensitive assessment of the functional effect of pre-sentence custody. In light of s. 719(3) of the Code, intervening offences and detention are a complicating factor that must also be considered, as ineligible time should not be credited ... Plainly, it would be appropriate and usually necessary for trial judges to have evidence and submissions helpful to forming a realistic conclusion as to the effect of pre-sentence custody in the particular case unless the facts are agreed: s. 724(3) of the Code. In the absence of such agreement or of such evidence and submissions, Wust would allow trial judges to resort to the 2 for 1 credit as a generalized assumption or default position. It may be that Parliament may choose to enact a different default position." - See paragraphs 10 to 11.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Northwest Territories Court of Appeal stated that "If the case-specific reason for pre-sentence detention relates to pre-offence conduct by the accused, the facts supporting that reason will generally be aggravating factors relevant to determining the index sentence for the offence, or they will be essentially irrelevant. There is a risk, therefore, that reducing the pre-sentence custody credit will amount to double or inappropriate punishment. For example, the offender should not be re-punished for his prior criminal record. The prior conduct should not be an aggravating factor in sentencing and then be used again to reduce pre-sentence custody credit. The accused should not be convicted (or be at risk of conviction) for a pre-offence breach of recognizance, and also have that breach used to reduce pre-sentence custody credit. The risk of double punishment, however, may not always exist, since the line of reasoning from such circumstances might not always result in double punishment. The offender's character and attitude, his prospects of rehabilitation or benefit from programs, his eligibility for sentencing options, are all matters that remain relevant. Consequently, a mandatory rule of exclusion of such factors would not seem justified. If the reason for pre-sentence detention relates to post-offence conduct by the offender that does not form part of the index offence, then such conduct would either be evidence of the character and attitude of the offender (and thus again be relevant to the index sentence), or it would be subject to independent charge and prosecution. If a separate charge (such as under s. 145 of the Code) could be laid, Alberta jurisprudence would have it that (except now by agreement under s. 725 of the Code) the post-offence conduct would not be considered directly as an aggravating factor in sentencing ... It is open to the Crown to prosecute separately or to invoke s. 725 of the Code ... Absent the Crown doing so, the offender should not be punished for uncharged offences ... A fortiori, the existence of such post-offence conduct should also not negatively influence the pre-sentence custody credit as it would either be a factor on the index sentence or subject to separate prosecution." - See paragraphs 18 to 19.

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See first Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5895

Sentence - Threats - [See first Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5917

Sentence - Use of firearm during offence - [See first Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 6].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 8].

R. v. Tallman, Tallman, Laboucan and Auger (1989), 94 A.R. 251; 48 C.C.C.(3d) 81 (C.A.), refd to. [para. 10].

R. v. R.K.A. (2006), 384 A.R. 222; 367 W.A.C. 222; 2006 ABCA 82, refd to. [para. 10].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 228 C.C.C.(3d) 432; 2008 BCCA 76, refd to. [para. 12].

R. v. Neudorf (T.J.) (2004), 200 B.C.A.C. 274; 327 W.A.C. 274; 187 C.C.C.(3d) 190; 2004 BCCA 374, refd to. [para. 13].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148; 2005 MBCA 149, refd to. [para. 13].

R. v. Coxworthy (D.H.) (2007), 417 A.R. 242; 410 W.A.C. 242; 2007 ABCA 323, refd to. [para. 13].

R. v. Sooch (S.S.) (2008), 433 A.R. 270; 429 W.A.C. 270; 2008 ABCA 186, refd to. [para. 13].

R. v. Sparham (J.A.) (2007), 220 Man.R.(2d) 3; 407 W.A.C. 3; 2007 MBCA 84, refd to. [para. 13].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 238 C.C.C.(3d) 330; 2008 MBCA 110, refd to. [para. 13].

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451; 1999 BCCA 159, refd to. [para. 13].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193; 2001 MBCA 64, refd to. [para. 13].

R. v. Pangman - see R. v. Vermette (I.M.).

R. v. Lapointe (D.E.) (1999), 244 A.R. 358; 209 W.A.C. 358 (C.A.), refd to. [para. 13].

R. v. Millward (R.C.) (2000), 271 A.R. 372; 234 W.A.C. 372; 2000 ABCA 308, refd to. [para. 16].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 2004 ABCA 408, refd to. [para. 16].

R. v. Roulette (A.M.), [2008] Man.R.(2d) Uned. 64; 2008 MBCA 113, refd to. [para. 16].

R. v. Butler (D.A.) (2008), 270 N.S.R.(2d) 225; 865 A.P.R. 225; 239 C.C.C.(3d) 97; 2008 NSCA 102, refd to. [para. 16].

R. v. Calder Berg (S.L.) (2007), 243 B.C.A.C. 179; 401 W.A.C. 179; 221 C.C.C.(3d) 449; 2007 BCCA 343, refd to. [para. 17].

R. v. Sawchyn (1981), 30 A.R. 314; 60 C.C.C.(2d) 200 (C.A.), leave to appeal denied [1981] 2 S.C.R. xi; 39 N.R. 616; 33 A.R. 198, refd to. [para. 19].

R. v. Ambrose (B.A.) (2000), 271 A.R. 164; 234 W.A.C. 164; 2000 ABCA 264, refd to. [para. 19].

R. v. Larche (J.-P.), [2006] 2 S.C.R. 762; 355 N.R. 48; 2006 SCC 56, refd to. [para. 19].

R. v. Angelillo (G.), [2006] 2 S.C.R. 728; 355 N.R. 226; 2006 SCC 55, refd to. [para. 19].

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. 24].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 24].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 25].

Counsel:

G. Boyd, for the respondent;

H.R. Latimer, for the appellant.

This appeal was heard on June 16, 2009, before Johnson, Watson and Slatter, JJ.A., of the Northwest Territories Court of Appeal.

On July 3, 2009, the following memorandum of judgment was filed by the Court.