R. v. Taylor (E.), 2013 NLCA 42

• Judge: Green, C.J.N.L., White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: June 20, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: 2013 NLCA 42;(2013), 337 Nfld. & P.E.I.R. 24 (NLCA)

R. v. Taylor (E.) (2013), 337 Nfld. & P.E.I.R. 24 (NLCA);

    1047 A.P.R. 24

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. JN.035

Her Majesty the Queen (appellant) v. Edward Taylor (respondent)

(12/08; 12/12; 2013 NLCA 42)

Indexed As: R. v. Taylor (E.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L., White and Hoegg, JJ.A.

June 20, 2013.

Summary:

The accused correctional officer pleaded guilty to five counts of possession for the purposes of trafficking and one count of breach of probation.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at 317 Nfld. & P.E.I.R. 330; 986 A.P.R. 330, sentenced the accused to a total of 16 months' imprisonment and 18 months' probation. The court ordered that the accused was to be treated by his own psychiatrist or another psychiatrist referred by his own psychiatrist and that the medications prescribed by his physicians were to be administered to him under the supervision of prison authorities (treatment order). The Crown appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal, concluding that an appropriate sentence was 36 months' imprisonment. However, the majority of the court (Hoegg, J.A., dissenting) concluded that the accused had been on parole for four months and that the interests of justice were best served by varying the sentence by increasing the length of the probation period to three years and not interfering with the term of imprisonment. The court varied the treatment order to make it a strong recommendation. The court also varied a condition of the probation order respecting possession and use of alcohol and non-prescription drugs so that it was worded in the manner set out in s. 732.1(3)(c) of the Criminal Code. The court removed three conditions which had no legitimate purpose in the order.

Criminal Law - Topic 5662.5

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Treatment order - A sentencing judge ordered that the accused was to be treated by the accused's own psychiatrist and that the medications prescribed by his physicians were to be administered to him under the supervision of prison authorities (the treatment order) - The Crown asserted that the treatment order was illegal and the judge had lacked jurisdiction to make it - The Newfoundland and Labrador Court of Appeal agreed that generally a sentencing judge's intrusion into that area should be exercised sparingly and be couched in the form of a recommendation rather than an order - That was not to say that there could never be a legitimate occasion where an order allowing for treatment by the offender's own physician while in the penitentiary could be made - Accordingly, the court would not rule out a sentencing judge having authority to order that an offender be treated by his own psychiatrist - The court discussed a judge's power to conduct penitentiary visitations and inspections under s. 13 of the Prisons Act - The court also referred to other ways in which the manner of treatment of a prisoner might be subject to review and possible correction in the courts - However, here, the treatment order was not justified and should have been made as a recommendation - The evidence respecting the accused's medical condition was based on his self-reporting - No evidence was before the judge respecting the penitentiary's medication administration policy or how incarceration might interrupt the accused's treatment - There was no s. 13 visitation undertaken - There was therefore nothing upon which the judge could exercise his visitation and expectation powers and nothing upon which he could have made an ancillary direction - See paragraphs 21 to 41.

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - The Newfoundland and Labrador Court of Appeal held that a condition of a probation order requiring the accused to "... abstain from the possession or use of alcohol and all non-prescription drugs, both legal and illegal" was vague and overly broad - The court held that the condition should be worded in the manner set out in s. 732.1(3)(c) of the Criminal Code: "... abstain from (i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription." - See paragraph 43.

Criminal Law - Topic 5799.4

Punishments (sentence) - Prohibition orders - Respecting alcohol and drugs - [See Criminal Law - Topic 5723 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The 32 year old accused correctional officer pleaded guilty to five counts of possession for the purposes of trafficking and one count of breach of probation - The amount of drugs and packaging indicated that the drugs were for individuals in the institution - At the time, he was using cocaine heavily and had an alcohol problem - Had a bipolar disorder, an attention deficit disorder and suffered from depression - Was seeing addiction counsellors and being treated for his mental health issues - Expressed remorse - The trial judge considered the breach of trust and concluded that an appropriate sentence was 15 months of concurrent imprisonment for the two counts under the Schedule I regime, one month concurrent for each of the other trafficking counts and one month consecutive for the breach of probation - The sentence was to be followed by 18 months' probation - The Newfoundland and Labrador Court of Appeal concluded that the sentence was demonstrably unfit and that an appropriate sentence was 36 months' imprisonment - However, the accused had made significant steps toward his rehabilitation and reintegration into society - He had been on parole for four months, had resumed his relationship with his son, was gainfully employed, was accepted for a heavy equipment operator course, was continuing treatments and making progress respecting his mental health and addictions, and had continuing family support - The interests of justice were best served by increasing the probation to three years and not interfering with the imprisonment term - See paragraphs 12 to 20 and 46 to 70.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - Possession for the purpose of trafficking - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - The Newfoundland and Labrador Court of Appeal stated that the question as to whether an offender should be re-incarcerated upon having his or her sentence increased on appeal should not be decided based on a presumption in favour of or against re-incarceration - Instead, the court adopted a modified Veysey approach (R. v. Veysey (J.M.) (2006, N.B.C.A.)) - The court summarized the non-exhaustive factors as follows: "1. The seriousness of the offence. ... 2. Rehabilitative efforts and the impact on those efforts if re-incarceration were to be imposed. ... 4. Difference in the sentence imposed and that imposed following appeal. ... 5. Whether any measures other than re-incarceration could be imposed that would serve to denounce and deter while still promoting rehabilitation." - The court discussed each of the factors and stated that "Even without this last factor, however, the question which remains is whether re-incarceration is more compatible with the overall objectives and principles of sentencing needed to achieve respect for the law and maintenance of a just, peaceful and safe society. In fact this is the ultimate question that has to be addressed in every case. It involves a blending and balancing of all of the factors outlined above with a view to achieving the greatest compatibility with the purposes, objectives and principles of the sentencing regime." - See paragraphs 51 to 66.

Cases Noticed:

R. v. Swanson (1980), 25 A.R. 197 (N.W.T.C.A.), refd to. [para. 12].

R. v. Frost (J.W.) (1994), 100 Man.R.(2d) 170; 91 W.A.C. 170 (C.A.), refd to. [para. 12].

R. v. Dion (1981), 29 A.R. 32; 59 C.C.C.(2d) 380 (C.A.), refd to. [para. 12].

R. v. Barrett (T.) (2008), 275 Nfld. & P.E.I.R. 308; 842 A.P.R. 308; 2008 NLCA 23, refd to. [para. 12].

R. v. Collins (D.J.) (2009), 286 Nfld. & P.E.I.R. 225; 883 A.P.R. 225; 2009 NLTD 33, refd to. [para. 12].

R. v. English (A.) (2008), 58 C.R.(6th) 354; 2008 QCCQ 5069, refd to. [para. 13].

R. v. Oake, [1984] A.J. No. 402 (C.A.), refd to. [para. 15].

R. v. Li, [2004] O.J. No. 6269 (Sup. Ct.), refd to. [para. 15].

R. v. Domke (M.) (2006), 400 A.R. 112; 69 Alta. L.R.(4th) 373; 2006 ABPC 252, refd to. [para. 15].

R. v. Moore (R.B.), [2009] B.C.T.C. Uned. 1926; 2009 BCSC 1926, refd to. [para. 15].

R. v. Calder (A.) (2012), 312 N.S.R.(2d) 1; 987 A.P.R. 1; 2012 NSCA 3, refd to. [para. 15].

R. v. Taylor (B.M.) (2012), 401 Sask.R. 292; 2012 SKQB 292, varied (2013), 414 Sask.R. 15; 575 W.A.C. 15; 2013 SKCA 33, refd to. [para. 15].

R. v. Edmunds (M.) (2012), 322 Nfld. & P.E.I.R. 337; 1000 A.P.R. 337; 2012 NLCA 26, refd to. [para. 17].

R. v. Jacobish (C.) (1997), 155 Nfld. & P.E.I.R. 197; 481 A.P.R. 197 (Nfld. C.A.), refd to. [para. 24].

Clift v. Holdsworth (1819), 1 Nfld. L.R. 167 (Nfld. S.C.), refd to. [para. 37].

R. v. Kane (M.) (2012), 325 Nfld. & P.E.I.R. 78; 1009 A.P.R. 78; 2012 NLCA 53, refd to. [para. 49].

R. v. Porter (1980), 26 Nfld. & P.E.I.R. 26; 72 A.P.R. 26 (Nfld. C.A.), refd to. [para. 52].

R. v. Warr (1987), 62 Nfld. & P.E.I.R. 158; 190 A.P.R. 158 (Nfld. C.A.), refd to. [para. 52].

R. v. Oates (K.) (1992), 100 Nfld. & P.E.I.R. 289; 318 A.P.R. 289 (Nfld. C.A.), refd to. [para. 52].

R. v. Downey (W.D.E.) and Predko (R.J.) (1992), 102 Nfld. & P.E.I.R. 14; 323 A.P.R. 14 (Nfld. C.A.), refd to. [para. 52].

R. v. Roebotham (S.) (1992), 102 Nfld. & P.E.I.R. 125; 323 A.P.R. 125 (Nfld. C.A.), refd to. [para. 52].

R. v. Parsons (B.) (1993), 108 Nfld. & P.E.I.R. 359; 339 A.P.R. 359 (Nfld. C.A.), refd to. [para. 52].

R. v. Butt (A.H.) (1993), 106 Nfld. & P.E.I.R. 92; 334 A.P.R. 92 (Nfld. C.A.), refd to. [para. 52].

R. v. J.J. (2004), 244 Nfld. & P.E.I.R. 24; 726 A.P.R. 24; 192 C.C.C.(3d) 30; 2004 NLCA 81, refd to. [para. 52].

R. v. Tuglavina (J.) (2011), 305 Nfld. & P.E.I.R. 265; 948 A.P.R. 265; 2011 NLCA 13, refd to. [para. 52].

R. v. English (J.) (2012), 328 Nfld. & P.E.I.R. 14; 1019 A.P.R. 14; 2012 NLCA 64, refd to. [para. 55].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 59].

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, refd to. [para. 59].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, consd. [para. 62].

R. v. Smith (D.W.) (2008), 307 Sask.R. 45; 417 W.A.C. 45; 232 C.C.C.(3d) 176; 2008 SKCA 20, refd to. [para. 62].

R. v. Sooch (S.S.) (2008), 433 A.R. 270; 429 W.A.C. 270; 2008 ABCA 186, refd to. [para. 62].

R. v. Sinclair (T.) et al. (2012), 280 Man.R.(2d) 31; 548 W.A.C. 31; 2012 MBCA 24, refd to. [para. 62].

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, refd to. [para. 76].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 80].

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 158 C.C.C.(3d) 312; 2001 BCCA 508, refd to. [para. 80].

R. v. G.C.F. (2004), 189 O.A.C. 29; 71 O.R.(3d) 771 (C.A.), refd to. [para. 88].

R. v. Shalley (J.D.) (2005), 201 Man.R.(2d) 142; 366 W.A.C. 142; 2005 MBCA 150, refd to. [para. 90].

R. v. R.N.S., [2000] 1 S.C.R. 149; 249 N.R. 365; 132 B.C.A.C. 1; 215 W.A.C. 1; 2000 SCC 7, refd to. [para. 91].

R. v. R.A.R., [2000] 1 S.C.R. 163; 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282, refd to. [para. 91].

R. v. Takhar (G.) (2007), 246 B.C.A.C. 87; 406 W.A.C. 87; 226 C.C.C.(3d) 410; 2007 BCCA 423, refd to. [para. 120].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 125].

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373; 757 A.P.R. 373; 2005 NSCA 159, refd to. [para. 141].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 152].

R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115; 481 A.P.R. 115 (Nfld. C.A.), refd to. [para. 158].

Statutes Noticed:

Prisons Act, R.S.N.L. 1990, c. P-21, sect. 13 [para. 30].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1959), vol. 30, paras. 1095 to 1098 [para. 32].

Roberts, Julian V., and von Hirsch, Statutory Sentencing Reform: The Purpose and Principles of Sentencing (1995), 37 Crim. L.Q. 220, pp. 226, 227 [para. 129].

Counsel:

Sheldon Steeves, for the appellant (Provincial Crown);

Andrew Brown, for the appellant (Federal Crown);

Mark Gruchy, for the respondent.

This appeal was heard on November 8 and 9, 2012, by Green, C.J.N.L., White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the court was delivered on June 20, 2013, with the following opinions:

White, J.A. - see paragraphs 1 to 72;

Hoegg, J.A., dissenting in part - see paragraphs 73 to 116;

Green, C.J.N.L. - see paragraphs 117 to 159.