R. v. Shrupka (M.L.), 2000 MBCA 112

• Judge: Lyon, Helper and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 26, 2000
• Jurisdiction: Manitoba
• Citations: 2000 MBCA 112;(2000), 153 Man.R.(2d) 61 (CA)

R. v. Shrupka (M.L.) (2000), 153 Man.R.(2d) 61 (CA);

    238 W.A.C. 61

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. NO.022

Her Majesty The Queen (respondent) v. Michael Lloyd Shrupka (accused/appellant)

(AR 00-30-04684; 2000 MBCA 112)

Indexed As: R. v. Shrupka (M.L.)

Manitoba Court of Appeal

Lyon, Helper and Steel, JJ.A.

October 26, 2000.

Summary:

The 27 year old accused pleaded guilty to sexual interference and was sentenced to four months' imprisonment plus three years' probation. The sentencing judge also made an order under s. 487.052(1) of the Criminal Code that the accused provide a suitable DNA sample. The accused appealed the sentence and the DNA sample order.

The Manitoba Court of Appeal allowed the appeal in part. The court set aside the four month sentence and substituted a seven month conditional sentence. The court held that the sentencing judge did not err in ordering the accused to provide a DNA sample.

Criminal Law - Topic 3072

Special powers - Search warrants - Bodily substances - Validity of warrant (incl. jurisdiction for DNA sample order) - The 27 year old accused pleaded guilty to sexual interference respecting a young male child he had babysat - The sentencing judge, in addition to the sentence imposed, made an order under s. 487.052(1) of the Criminal Code requiring the accused to provide a suitable DNA sample - The accused submitted that since the DNA Identification Act was only in force June 30, 2000, and he pleaded guilty on Decem­ber 9, 1999, he was "convicted" of the designated offence before s. 487.052(1) was enacted; accordingly, s. 487.052(1) could not apply to him - The Manitoba Court of Appeal held that a guilty plea did not amount to a "conviction" until sentence was imposed - Since the accused was not sentenced until July 7, 2000, after s. 487.052(1) was enacted, the sentencing judge did not err in making the order - See paragraphs 13 to 24.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 27 year old accused pleaded guilty to sexual interference - The victim was a young male child the accused babysat - The incidents took place between August 1, 1996 and April 18, 1997 - The accused was a first time offender, was steadily employed and remained out of trouble since the offence while living with his sister - The sentencing judge, emphasizing deterrence and denunciation, declined to impose a conditional sentence - The ac­cused was sentenced to four months' im­prisonment plus three years' probation - The Manitoba Court of Appeal substituted a seven month conditional sentence plus probation - The sentencing judge overem­phasized deterrence and denunciation - Further, the fact that the accused has not been re-involved with such behaviour without therapeutic counselling was incon­sistent with the sentencing judge's finding that he was a serious risk to re-offend - Protection of the public was adequately addressed by the restrictive conditions of the probation order, including house arrest - See paragraphs 1 to 12.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5720.4 ].

Words and Phrases

Convicted - The Manitoba Court of Ap­peal held that an accused who pleaded guilty was not "convicted" for the purposes of s. 487.052(1) of the Criminal Code, R.S.C. 1985, c. C-46, until the guilty plea was accepted and the accused was sen- tenced - See paragraphs 13 to 24.

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269, refd to. [para. 6].

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; 140 C.C.C.(3d) 449, refd to. [para. 6].

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; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 6].

R. v. Robinson (C.J.) (1993), 88 Man.R.(2d) 191; 51 W.A.C. 191 (C.A.), refd to. [para. 9].

R. v. Scraire (1998), 132 C.C.C.(3d) 210 (Que. C.A.), refd to. [para. 10].

R. v. Rich (E.) (1995), 134 Nfld. & P.E.I.R. 268; 417 A.P.R. 268 (Nfld. C.A.), refd to. [para. 11].

R. v. Riley (K.) (1996), 150 N.S.R.(2d) 390; 436 A.P.R. 390 (C.A.), refd to. [para. 11].

R. v. Bedard (1972), 22 C.R.N.S. 230 (Que. C.A.), refd to. [para. 11].

R. v. Faid (1984), 52 A.R. 338; 31 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 11].

R. v. Blaby, [1894] 2 Q.B. 170, not folld. [para. 15].

R. v. Sheridan, [1937] 1 K.B. 223 (C.A.), refd to. [para. 15].

R. v. Grant (1936), 26 Cr. App. Rep. 8 (C.A.), refd to. [para. 15].

R. v. Cole, [1965] 2 All E.R. 29 (C.A.), refd to. [para. 16].

S. (An Infant) v. Recorder of Manchester, [1971] A.C. 481 (H.L.), refd to. [para. 16].

R. v. Vanek (1944), 82 C.C.C. 53 (Ont. C.A.), refd to. [para. 18].

R. v. McInnis (1973), 13 C.C.C.(2d) 471 (Ont. C.A.), refd to. [para. 18].

R. v. Lessard (1976), 30 C.C.C.(2d) 70 (Ont. C.A.), refd to. [para. 18].

R. v. Hofer (1977), 36 C.C.C.(2d) 426 (Man. Co. Ct.), refd to. [para. 18].

R. v. Senior (L.W.A.) (1996), 181 A.R. 1; 116 W.A.C. 1 (C.A.), refd to. [para. 20].

Marcotte v. Canada (Deputy Attorney General), [1976] 1 S.C.R. 108; 3 N.R. 613, refd to. [para. 23].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 23].

R. v. Loscerbo (A.) (1994), 92 Man.R.(2d) 263; 61 W.A.C. 263 (C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.052(1) [para. 13].

Counsel:

G.B. Hawrysh, for the appellant;

G.A. Lawlor, for the respondent.

This appeal was heard on September 28, 2000, before Lyon, Helper and Steel, JJ.A., of the Manitoba Court of Appeal.

On October 26, 2000, Helper, J.A., deliv­ered the following judgment for the Court of Appeal.