R. v. Serdyuk (O.S.), (2012) 533 A.R. 199

• Judge: Martin, Watson and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 28, 2012
• Citations: (2012), 533 A.R. 199;2012 ABCA 205

R. v. Serdyuk (O.S.) (2012), 533 A.R. 199; 557 W.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JL.004

Her Majesty the Queen (respondent) v. Oleh Sergeevich Serdyuk (appellant)

(1101-0086-A; 2012 ABCA 205)

Indexed As: R. v. Serdyuk (O.S.)

Alberta Court of Appeal

Martin, Watson and McDonald, JJ.A.

June 28, 2012.

Summary:

The accused, in a judgment reported [2010] A.R. Uned. 647, was convicted of aggravated assault, pointing a firearm (two counts), possession of a weapon for a dangerous purpose, using a firearm while committing an indictable offence, possession of a concealed weapon, possession of a firearm without a licence (conditionally stayed), possession of a loaded prohibited/restricted firearm and possession of a weapon with its serial number removed. The accused, in a judgment reported [2011] A.R. Uned. 235, was subsequently sentenced to a total of seven years' imprisonment, less one year credit for pre-trial custody on a one-to-one basis. The sentencing judge held that the newly amended s. 719 of the Criminal Code applied to limit credit for pre-trial custody to one-to-one. The accused appealed, submitting that s. 719 did not apply and that he should have received the normally given two-for-one credit.

The Alberta Court of Appeal, Watson, J.A., dissenting, allowed the appeal and reduced the net sentence to five years' imprisonment by giving the accused two years' credit for pre-trial custody based on the usual two-for-one credit that the sentencing judge would have given but for his error in finding that he was limited by s. 719 to giving one-to-one credit. Watson, J.A., agreeing that s. 719 did not apply to limit the sentencing judge to one-to-one credit, would have limited pre-trial custody to a one-to-one basis on the ground that not awarding the "usual" two-for-one credit did not result in a sentence that was unfair or disparate.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of aggravated assault and a number of firearms offences - The judge sentenced the accused to a total of seven years' imprisonment, less one year's credit on a one-to-one basis, for 363 days of pre-trial custody - The judge, with the agreement of counsel, held that the newly amended s. 719 of the Criminal Code, which came into effect after the offences were committed, but before the accused was charged, convicted and sentenced, restricted him to giving a maximum of one-to-one credit for pre-trial custody - The accused appealed the application of s. 719 and the failure to give him the "usual" two-for-one credit - The Alberta Court of Appeal allowed the appeal and reduced the net sentence to five years' imprisonment by giving the accused two-for-one credit (two years) for his 363 days' pre-trial custody - The amended s. 719, which was substantive rather than procedural, did not apply retrospectively to offences committed prior to the amended s. 719 coming into force - The former s. 719, in effect at the time of the offences, was the provision that applied to the accused - Had the judge not erred, the majority was satisfied that he would have given the accused the usual two-for-one credit - Watson, J.A., dissenting, while agreeing that the newly amended s. 719 did not apply to the accused, would have dismissed the appeal by limiting credit for pre-trial custody to a one-to-one basis on the ground that notwithstanding the judge's error the failure to give the "usual" two-for-one credit, resulting in a net sentence of six years' imprisonment, was neither unfair nor disparate.

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Sooch (S.S.) (2008), 433 A.R. 270; 429 W.A.C. 270; 2008 ABCA 186, refd to. [para. 2].

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. 18].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 19].

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, refd to. [para. 35].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 36].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200, refd to. [para. 36].

R. v. Rodgers - see R. v. Jackpine (R.).

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 66 C.R.(3d) 193; 45 C.C.C.(3d) 204, refd to. [para. 36].

R. v. Price (1884), 12 Q.B.D. 247, refd to. [para. 40].

Calder v. Bull, [1798] 3 U.S. 386; 1798 USSC 3, refd to. [para. 42].

Carmell v. Texas (2000), 529 U.S. 513; 2000 USSC 37, refd to. [para. 44].

R. v. Warren (D.R.) (2010), 477 A.R. 370; 483 W.A.C. 370; 254 C.C.C.(3d) 264; 2010 ABCA 133, refd to. [para. 47].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 343 D.L.R.(4th) 193; 2012 SCC 12, refd to. [para. 48].

R. v. Dineley (S.) (2009), 256 O.A.C. 235; 2009 ONCA 814, leave to appeal granted (2010), 413 N.R. 386 (S.C.C.), refd to. [para. 49].

R. v. McFadzen (M.) (2011), 499 A.R. 154; 514 W.A.C. 154; 2011 ABCA 53, refd to. [para. 54].

R. v. Vedres (L.K.) (2012), 322 B.C.A.C. 126; 549 W.A.C. 126; 2012 BCCA 232, refd to. [para. 55].

R. v. Zimmerman (D.R.) (2011), 513 A.R. 374; 530 W.A.C. 374; 2011 ABCA 102, refd to. [para. 59].

R. v. Cardinal (E.A.) (2012), 522 A.R. 259; 544 W.A.C. 259; 2012 ABCA 102, refd to. [para. 59].

R. v. Sabourin (E.G.) (2009), 460 A.R. 118; 462 W.A.C. 118; 248 C.C.C.(3d) 111; 2009 NWTCA 6, refd to. [para. 59].

Authors and Works Noticed:

Bowring, J., The Works of Jeremy Bentham (1843), vol. 4, p. 315 [para. 38].

Hobbes, Thomas, Leviathan (1651) (1929 reprint), p. 240 [para. 40].

Spedding, J., Ellis, R.L., and Heath, D.D., The Works of Francis Bacon (1882), vol. 9, p. 314 [para. 39].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 679 [para. 36].

Williams, Glanville, Criminal Law: The General Part (2nd Ed. 1961), p. 575 [para. 41].

Counsel:

E.J. Tolppanen, Q.C., for the respondent;

M.G. Bates, for the appellant.

This appeal was heard on May 23, 2012, before Martin, Watson and McDonald, JJ.A., of the Alberta Court of Appeal.

On June 28, 2012, the judgment of the Court was delivered and the following opinions were filed:

Martin, J.A. (McDonald, J.A., concurring) - see paragraphs 1 to 3;

Watson, J.A., dissenting - see paragraphs 4 to 63.