R. v. Singh (J.), 2016 MBCA 38

• Judge: Steel, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 20, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 38;(2016), 326 Man.R.(2d) 274 (CA)

R. v. Singh (J.) (2016), 326 Man.R.(2d) 274 (CA);

      664 W.A.C. 274

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AP.012

Her Majesty The Queen (respondent) v. Jugdeep Singh (accused/appellant)

(AR 15-30-08439; 2016 MBCA 38)

Indexed As: R. v. Singh (J.)

Manitoba Court of Appeal

Steel, Monnin and Cameron, JJ.A.

April 18, 2016.

Summary:

The accused was sentenced to six months' incarceration followed by 18 months' supervised probation for personating someone else to avoid arrest. The accused sought leave to appeal the probation order. In particular, the accused argued that the curfew attached to the probation order was unreasonable, and was imposed for punitive purposes contrary to s. 732.1(3)(h) of the Criminal Code, given that when the curfew was imposed, the accused had no ties to Manitoba and no residence, and could not comply with the conditions.

The Manitoba Court of Appeal granted leave to appeal and allowed the appeal in part. While the probation order would remain, the condition of the curfew would be removed.

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - The Manitoba Court of Appeal stated that "Conditions of probation cannot be imposed for primarily punitive purposes, although a reasonable condition may have a residual punitive aspect to it. Conditions imposed under the residual clause must be ordered either for the purpose of protecting society, or facilitating the particular offender's successful reintegration into the community, or both. Although reasonable conditions will generally be linked to the offence, this will not always be the case, and it may be that a reasonable condition is linked to the needs of the offender. As long as there is a nexus between the condition, the offender and the protection of the community and/or the offender's reintegration into the community, and evidence supporting the existence of that nexus, the condition could be considered reasonable. It is trite to say that a sentencing judge ought not to set up an accused for failure as part of a court order" - See paragraphs 27 to 28.

Criminal Law - Topic 5724

Punishments (sentence) - Probation or probation order - Unreasonable conditions - The accused was sentenced to six months' incarceration followed by 18 months' supervised probation for personating someone else to avoid arrest - One condition of the probation order was that the accused follow a daily curfew from 9:00 p.m. to 6.00 a.m., and answer the door if Winnipeg Police Service, Probation Services or their designate conducted a curfew check - The accused appealed the probation order - In particular, the accused argued that the curfew was unreasonable, and was imposed for punitive purposes contrary to s. 732.1(3)(h) of the Criminal Code, given that when the curfew was imposed, the accused had no ties to Manitoba and no residence, and could not comply with the condition - The Manitoba Court of Appeal allowed the appeal in part - While the probation order would remain, the condition of the curfew would be removed - The conditions attached to a probation order had to be reasonable, and had to be for rehabilitative purposes, public safety or both - While the protection of the community may have required a period of probation and a reporting requirement for this individual, there was no evidence that the additional curfew condition had any further rehabilitative or public safety purpose, and could only be described as punitive - See paragraphs 3 and 28 to 30.

Cases Noticed:

R. v. Arganda (J.R.) (2011), 268 Man.R.(2d) 194; 520 W.A.C. 194; 2011 MBCA 54, refd to. [para. 12].

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 14].

R. v. Woroby (T.W.) (2003), 173 Man.R.(2d) 178; 293 W.A.C. 178; 2003 MBCA 41, refd to. [para. 14].

R. v. Voong (D.M.) et al. (2015), 374 B.C.A.C. 166; 642 W.A.C. 166; 2015 BCCA 285, refd to. [para. 14].

R. v. Bourque (K.A.N.) (2013), 344 B.C.A.C. 197; 587 W.A.C. 197; 2013 BCCA 447, refd to. [para. 14].

R. v. Traverse (B.R.) (2006), 201 Man.R.(2d) 212; 366 W.A.C. 212; 2006 MBCA 7, refd to. [para. 15].

R. v. Bosco (J.J.) (2016), 382 B.C.A.C. 212; 660 W.A.C. 212; 2016 BCCA 55, refd to. [para. 15].

R. v. Dunn (B.J.) (2011), 369 N.B.R.(2d) 271; 952 A.P.R. 271; 2011 NBCA 19, refd to. [para. 16].

R. v. C.T. (2006), 201 Man.R.(2d) 194; 366 W.A.C. 194; 2006 MBCA 15, refd to. [para. 17].

R. v. S.A.C. (2007), 254 N.S.R.(2d) 90; 810 A.P.R. 90; 2007 NSCA 55, affd. [2008] 2 S.C.R. 675; 377 N.R. 361; 267 N.S.R.(2d) 202; 853 A.P.R. 202; 2008 SCC 47, refd to. [para. 17].

R. v. J.R.L. (2007), 254 N.S.R.(2d) 344; 810 A.P.R. 344; 2007 NSCA 62, refd to. [para. 17].

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. 18].

R. v. St-Cloud (J.), [2015] 2 S.C.R. 328; 471 N.R. 256; 2015 SCC 27, refd to. [para. 19].

R. v. Choi (J.W.) (2013), 294 Man.R.(2d) 261; 581 W.A.C. 261; 2013 MBCA 75, refd to. [para. 21].

R. v. Etifier (E.N.) (2009), 274 B.C.A.C. 24; 463 W.A.C. 24; 2009 BCCA 292, refd to. [para. 22].

R. v. Mattice (B.M.) (2003), 184 B.C.A.C. 140; 302 W.A.C. 140; 2003 BCCA 370, refd to. [para. 25].

R. v. Wesslen (A.J.) (2015), 599 A.R. 159; 643 W.A.C. 159; 2015 ABCA 74, refd to. [para. 25].

R. v. Badyal (A.S.) (2011), 305 B.C.A.C. 110; 515 W.A.C. 110; 2011 BCCA 211, refd to. [para. 26].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 732.1(3)(h) [para. 13].

Counsel:

T.L. Mariash, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on January 20, 2016, before Steel, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Steel, J.A., on April 18, 2016.