R. v. Smarch (J.W.), 2015 YKCA 13

• Judge: Bennett, Garson and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: April 01, 2015
• Jurisdiction: Yukon
• Citations: 2015 YKCA 13;(2015), 374 B.C.A.C. 291 (YukCA)

R. v. Smarch (J.W.) (2015), 374 B.C.A.C. 291 (YukCA);

    642 W.A.C. 291

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.034

Regina (appellant) v. James William Smarch (respondent)

(14-YU747; 2015 YKCA 13)

Indexed As: R. v. Smarch (J.W.)

Yukon Court of Appeal

Bennett, Garson and Stromberg-Stein, JJ.A.

July 14, 2015.

Summary:

Smarch was found guilty of sexually assaulting M.B. (see [2013] Yukon Cases Uned. 114). The trial judge concluded that the evidence did not support a finding that intercourse had occurred, but did support a finding of contact of a sexual nature with M.B. (who was passed out) without her consent. Smarch also pled guilty to two breach offences, contrary to s. 145(3) of the Criminal Code, for violating his curfew and consuming alcohol. Smarch was a citizen of the Tr'ondek Hwech'in First Nation. He was 28 years old at the time of sentencing and had a lengthy criminal record. For the sexual assault offence, the trial judge designated Smarch a dangerous offender and sentenced him to a determinate sentence of 16 months, less 14.5 months' credit for pre-sentence custody. For the breach offences, the trial judge sentenced Smarch to 1.5 months and one month, consecutive to each other and to the sexual assault sentence (see [2014] Yukon Cases Uned. 51). The Crown appealed. The Crown argued that the judge should have imposed a sentence of at least two years or more with a 10-year long-term supervision order, pursuant to s. 753(4)(b) of the Code. Smarch was released from custody on February 15, 2015. A post-sentence report was prepared.

The Yukon Court of Appeal dismissed the appeal. The court agreed with the Crown that the foundation for the sentence, at least in part, was based on an absence of evidence, which was an error in law. There was no evidence before the trial judge regarding programs that could adequately supervise Smarch in the community. Rather, the judge based his conclusion that such programs were available on his own knowledge and experience. That was not enough. However, on the basis of the evidence that was before the trial judge, and the evidence now before the court, the court was satisfied that any error by the judge was harmless and that neither a longer sentence nor a new hearing was justified. The court stated that "it would be wholly inappropriate to sentence Mr. Smarch to a minimum of two years' incarceration and return him to prison solely to access federal programs. ... this would take Mr. Smarch, an Aboriginal man with cognitive and substance abuse issues, from his community and his family - a family that has served as a significant support for him following his release from custody. I note that the evidence before this Court indicates that Mr. Smarch has had success in abstaining from alcohol since his release". The judge did not err by concluding that four months' additional custody, followed by three years of community supervision, could address Smarch's treatment needs. The judge imposed a sentence that adequately protected the public and was consistent with his finding that Smarch was a high-risk, dangerous offender who required treatment in the community.

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 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - See paragraphs 58 to 59.

Criminal Law - Topic 5932

Sentence - Sexual assault - See paragraphs 54 to 60.

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - See paragraphs 54 to 60.

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - See paragraphs 54 to 60.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - See paragraphs 54 to 60.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - See paragraphs 54 to 60.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 27].

R. v. Takhar (G.) (2007), 246 B.C.A.C. 87; 406 W.A.C. 87; 2007 BCCA 423, refd to. [para. 32].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 46].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 46].

R. v. Armstrong (T.L.) (2014), 355 B.C.A.C. 175; 607 W.A.C. 175; 2014 BCCA 174, refd to. [para. 47].

R. v. Ominayak (R.D.) (2012), 539 A.R. 88; 561 W.A.C. 88; 2012 ABCA 337, refd to. [para. 47].

R. v. Standingwater (J.R.) (2013), 417 Sask.R. 158; 580 W.A.C. 158; 2013 SKCA 78, refd to. [para. 47].

R. v. Shanoss (J.N.), [2013] B.C.T.C. Uned. 2335; 2013 BCSC 2335, refd to. [para. 47].

R. v. Bitternose (C.L.) (2013), 553 A.R. 316; 583 W.A.C. 316; 2013 ABCA 220, refd to. [para. 48].

R. v. Trevor (L.E.) (2010), 290 B.C.A.C. 51; 491 W.A.C. 51; 2010 BCCA 331, refd to. [para. 48].

R. v. D.J.S. (2015), 370 B.C.A.C. 57; 635 W.A.C. 57; 2015 BCCA 111, refd to. [para. 48].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 48].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 50].

Counsel:

N. Sinclair, for the appellant;

G. Coffin, for the respondent.

This appeal was heard on April 1, 2015, at Vancouver, B.C., before Bennett, Garson and Stromberg-Stein, JJ.A., of the Yukon Court of Appeal. The following judgment of the Court of Appeal was delivered by Stromberg-Stein, J.A., on July 14, 2015.