R. v. Strong (T.S.), (2005) 281 Nfld. & P.E.I.R. 85 (NLPC)

• Judge: Kennedy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 05, 2005
• Jurisdiction: Newfoundland and Labrador
• Citations: (2005), 281 Nfld. & P.E.I.R. 85 (NLPC)

R. v. Strong (T.S.) (2005), 281 Nfld. & P.E.I.R. 85 (NLPC);

    863 A.P.R. 85

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. DE.001

Her Majesty the Queen v. Tanya Suzette Strong

(No. 0604A00479)

Indexed As: R. v. Strong (T.S.)

Newfoundland and Labrador Provincial Court

District of Clarenville

Kennedy, P.C.J.

July 5, 2005.

Summary:

The accused pled guilty to six counts of theft from her employer. She received a 210 day conditional sentence followed by a three year probationary period. One condition of probation order was that she pay compensation of $11,360.79 during the period of probation. The accused was charged with breaching the probation order by failing to pay the compensation (Criminal Code, s. 733.1(1)(b)). The accused argued that she did everything she reasonably could to comply but failed to do so due to circumstances beyond her control.

The Newfoundland and Labrador Provincial Court convicted the accused.

Criminal Law - Topic 5731

Punishments (sentence) - Probation or probation order - Breach of - The accused pled guilty to six counts of theft from her employer - She received a 210 day conditional sentence followed by a three year probationary period - One condition of probation order was that she pay compensation of $11,360.79 during the period of probation - Her total income for years 2001 to 2004 was $2,295, $0, $8,652 and $6,750 respectively - By the expiration of the order, the accused had only paid $700 (incl. $300 in 2003 and $200 in 2004) - The accused was charged with breaching the probation order by failing to pay the compensation (Criminal Code, s. 733.1(1)(b)) - The accused argued that she did everything she reasonably could to comply with the condition but failed to do so due to circumstances beyond her control - The Newfoundland and Labrador Provincial Court convicted the accused - The accused did not have the financial ability to comply fully with the compensation order within the three years set by the probation order - However, she could "probably" have paid more in 2003 and could "definitely" have paid more in 2004 - The accused's payments in those years, given her increased income and her subjectively paid expenditures (renovations, etc.), were not appropriate to the income earned - It might not be easy to pay a compensation order - However, ease was not the standard - The standard was reasonable effort in accordance with means and circumstances.

Criminal Law - Topic 5731

Punishments (sentence) - Probation or probation order - Breach of - The Newfoundland and Labrador Provincial Court set out several factors that a court should consider when addressing a charge of breach of probation due to nonpayment of a compensation order - See paragraphs 19 and 20.

Cases Noticed:

R. v. Sparkes, [1994] N.J. No. 174 (Nfld. C.A.), refd to. [para. 16].

R. v. Mayo, [1999] N.J. No. 109 (Nfld. Prov. Ct.), refd to. [para. 17].

R. v. Huszti (C.A.) (1998), 230 A.R. 135 (Q.B.), refd to. [para. 19].

R. v. Bolen (K.J.) (2003), 240 Sask.R. 308 (Prov. Ct.), refd to. [para. 19].

R. v. Crowe (J.H.) (2003), 244 Sask.R. 193 (Prov. Ct.), refd to. [para. 19].

R. v. S.S., [2004] O.T.C. 739 (Sup. Ct.), refd to. [para. 19].

R. v. Bird (Q.L.) (1999), 183 Sask.R. 119 (Q.B.), refd to. [para. 19].

R. v. Peekeekoot (Q.S.) (1999), 187 Sask.R. 314 (Prov. Ct.), refd to. [para. 19].

R. v. Pelly (A.) (2003), 229 Sask.R. 280 (Prov. Ct.), refd to. [para. 19].

R. v. Spellacy (R.A.) (1995), 131 Nfld. & P.E.I.R. 127; 408 A.P.R. 127 (Nfld. C.A.), refd to. [para. 19].

R. v. Taylor (R.) (2003), 179 O.A.C. 285; 180 C.C.C.(3d) 495 (C.A.), refd to. [para. 19].

R. v. MacAdam (D.J.) (2003), 222 Nfld. & P.E.I.R. 1; 663 A.P.R. 1 (P.E.I.C.A.), refd to. [para. 19].

R. v. Siemens (K.G.) (1999), 138 Man.R.(2d) 90; 202 W.A.C. 90; 136 C.C.C.(3d) 353 (C.A.), refd to. [para. 19].

R. v. Lazure (P.) (1987), 14 Q.A.C. 239 (C.A.), refd to. [para. 19].

R. v. Jacome, [2004] O.J. No. 1517 (C.J.), refd to. [para. 30].

Counsel:

Phyllis Harris, for the Crown;

Andrew May, for the defence.

This matter was heard before Kennedy, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment orally on July 5, 2005.