R. v. Spencer (D.J.), 2015 NSCA 108

Judge:MacDonald, C.J.N.S.
Court:Nova Scotia Court of Appeal
Case Date:December 02, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 108;(2015), 367 N.S.R.(2d) 246 (CA)
 
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R. v. Spencer (D.J.) (2015), 367 N.S.R.(2d) 246 (CA);

    1157 A.P.R. 246

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Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.001

Debra Jane Spencer (applicant) v. Her Majesty the Queen (respondent)

(CAC 444045; 2015 NSCA 108)

Indexed As: R. v. Spencer (D.J.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S.

December 2, 2015.

Summary:

In 2014, the accused pleaded guilty to being an accessory after the fact to murder and was sentenced to the jointly recommended sentence of two years' imprisonment. Seventeen months later, the accused moved to extend the time to appeal her sentence. The accused, although living in Canada since 1993, remained a foreign national and faced deportation where she was sentenced to six months' imprisonment or more. The sole motivation for the proposed appeal was to reduce the sentence to less than six months to avoid deportation.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a judgment reported [2015] N.S.R.(2d) TBEd. NO.008, dismissed the motion. The accused brought a motion before the Chief Justice for leave to have the decision reviewed by a full panel of the Court.

The Nova Scotia Court of Appeal, per MacDonald, C.J.N.S., denied the motion. The court agreed with Fichaud, J.A., that the proposed appeal would be a "complete non-starter". A sentence of less than six months (75% reduction) would be inordinately low. The accused, by way of the joint recommendation, acknowledged that two years' imprisonment was appropriate and would be hard pressed to convince the appeal court that it was now excessive. While the spectre of deportation was a relevant sentencing consideration, it could not be used to justify an otherwise unfit sentence.

Courts - Topic 6051

Provincial courts - Nova Scotia - Court of Appeal - Application to chief justice for leave to review decision of a single appellate judge (incl. extension of time to apply for) - In 2014, the accused pleaded guilty to being an accessory after the fact to murder and was sentenced to the jointly recommended sentence of two years' imprisonment - Seventeen months later, the accused moved to extend the time to appeal her sentence - The accused, although living in Canada since 1993, remained a foreign national and faced deportation where she was sentenced to six months' imprisonment or more - The sole motivation for the proposed appeal was to reduce the sentence to less than six months to avoid deportation - Fichaud, J.A., dismissed the motion - The accused brought a motion before the Chief Justice for leave to have the decision reviewed by a full panel of the Court - The Nova Scotia Court of Appeal, per MacDonald, C.J.N.S., denied the motion - The court agreed with Fichaud, J.A., that the proposed appeal would be a "complete non-starter" - A sentence of less than six months (75% reduction) would be inordinately low - The accused, by way of the joint recommendation, acknowledged that two years' imprisonment was appropriate and would be hard pressed to convince the appeal court that it was now excessive - While the spectre of deportation was a relevant sentencing consideration, it could not be used to justify an otherwise unfit sentence.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See Courts - Topic 6051 ].

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal - [See Courts - Topic 6051 ].

Cases Noticed:

Marshall v. Truro (Town) et al. (2009), 283 N.S.R.(2d) 37; 900 A.P.R. 37; 2009 NSCA 89, refd to. [para. 5].

R. v. Ly (T.Q.) (2013), 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 7].

R. v. Pham - see R. v. Ly (T.Q.).

Counsel:

Nicole Campbell and Trevor McGuigan, for the applicant;

Kenneth W.F. Fiske, Q.C., for the respondent.

This motion for leave to review was heard before MacDonald, C.J.N.S., of the Nova Scotia Court of Appeal, who delivered the following judgment on December 2, 2015.

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