R. v. Taylor (W.B.), (1997) 163 Sask.R. 29 (CA)

• Judge: Bayda, C.J.S., Cameron and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 18, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 163 Sask.R. 29 (CA);1997 CanLII 9813 (BS SC);1997 CanLII 9813 (SK CA);[1998] 7 WWR 704;122 CCC (3d) 376;15 CR (5th) 48;163 Sask R 29;[1998] 2 CNLR 140

R. v. Taylor (W.B.) (1997), 163 Sask.R. 29 (CA);

    165 W.A.C. 29

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. JA.026

Her Majesty The Queen (appellant) v. William Bruce Taylor (respondent)

(Docket: 6896)

Indexed As: R. v. Taylor (W.B.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Cameron and Jackson, JJ.A.

December 18, 1997.

Summary:

The accused was convicted of sexual assault, uttering a death threat and assault.

The Saskatchewan Court of Queen's Bench directed that a sentencing circle be held. In a decision reported at 132 Sask.R. 221, the court made an order which accommodated the recommendations of the majority of the circle's participants. The court ordered that the proceedings be adjourned for one year and that the accused spend the year in isola­tion on an island atoning for his actions and working toward his rehabilitation. If all went well, the court would suspend the passing of sentence at the end of the year and place the accused on probation. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at 137 Sask.R. 233; 107 W.A.C. 233, held that the trial judge was not empowered to adjourn the sentencing pro­ceedings for that length of time and for that purpose. The court allowed the appeal and remitted the matter to the trial judge for sentencing according to law.

The Saskatchewan Court of Queen's Bench held a sentencing hearing. The court took into account that the accused had spent nine months on remand and six months in isola­tion and concluded that a fit sentence would be an additional 90 days' imprisonment and three years' probation. A condition of the probation order required the accused to spend an additional six months in isolation under conditions roughly the same as those prescribed for the first six months spent in isolation. The Crown appealed the sentence on the ground that it was unfit. The Crown also questioned the validity of the sentencing circle.

The Saskatchewan Court of Appeal dis­missed the appeal. Cameron, J.A., concurred in the result only.

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - The Saskatchewan Court of Appeal held that a judge had the power under s. 737(2)(h) of the Criminal Code to make an order of banishment as part of a probation order - See paragraphs 24 to 39.

Criminal Law - Topic 5806.1

Sentencing - Sentence parity - General - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - The Crown argued, inter alia, that there was nothing to suggest that the court should take a calculated risk and depart from the ordinary two year incar­ceration limit - The Saskatchewan Court of Appeal rejected the submission - Many, if not most, of the sentencing circle par­ticipants did not favour any incarceration beyond the time the accused had spent on remand - The individual suggestions of the partici­pants made at the outset of the circle pro­ceedings vindicated the judge's refusal to reject a sentencing circle on the ground that the circumstances of the offence dic­tated a penitentiary term that could not be deviated from - See para­graphs 41 to 47.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Saskatchewan Court of Appeal stated that a not guilty plea did not necessarily preclude the hold­ing of a sentencing circle, but it did require the offender to demonstrate his remorse and acceptance of responsibility in some other way - Failing such a demon­stration, the judge would be justified in refusing the request for a sentencing circle - See para­graph 50.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - The Crown argued, inter alia, that the judge did not find that the accused was remorseful and accepting of responsi­bility for his offences and therefore should have refused a request for a sentencing circle - Particularly, the Crown referred to the fact that the accused had pleaded not guilty and had maintained his innocence under oath - The Saskatchewan Court of Appeal rejected the submission - The sentencing circle participants determined that the accused was remorseful, sincere and ac­cepting of responsibility and their decision superseded or cured any short­comings in the judge's assessment of those issues - See paragraphs 48 to 57.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - The Crown questioned, inter alia, whether a serious sexual offence was an appropriate subject for a sentencing circle - The Saskatchewan Court of Appeal stated that the fact that the offence was a serious sexual assault did not auto­matically rule out a sentencing circle - See paragraphs 58 to 59.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - An issue was raised with respect to whether the community was sufficiently motivated or capable of pro­viding the support necessary to fulfil the community's obligation in a restorative approach - The Saskatchewan Court of Appeal stated that had the trial judge referred the matter to the Justice Commit­tee before proceeding with the circle the Committee would have resolved the ques­tion of whether the com­munity was willing and capable of assum­ing the requisite responsibility - However, the court held that the judge's error in that regard was cured by the ultimate response of the circle members that the community was willing and capable of assuming the obligation of helping to restore the offender - See para­graphs 58 to 65.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - One of the Crown's sub­missions centred on the judge's omission to obtain confirmation from the victim of her will­ingness to participate in the sentencing circle before the judge decided to hold the circle - The Saskatchewan Court of Appeal held that the judge's omission constituted an error - However, the court held that whatever obstacle prevailed by reason of the judge's omission to obtain the victim's agreement to the holding of a sentencing circle was removed by the victim's even­tual willingness to participate - See para­graphs 66 to 67.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The Crown questioned the validity of a sentencing circle con­vened with respect to an accused charged with sexual assault, uttering a death threat and assault - The Crown submitted, inter alia, that the trial judge seemed to have con­cluded that the notion of healing inherent in the process was largely irrel­evant - The Saskatchewan Court of Appeal held that while the trial judge may have overlooked or relegated the notion of healing to a nether level, the notion of healing was central to the deliberations of the circle participants and the judge's errant thinking was overridden by the correct thinking of the circle members - See paragraphs 68 to 72.

Criminal Law - Topic 5809.2

Sentencing - Establishment of sentencing or healing circle - The accused was con­victed of sexual assault, uttering a death threat and assault - The trial judge con­vened a sentencing circle - Based on the circle's recommendations, the trial judge adjourned the sentencing for one year and ordered that the accused spend the year in isolation on an island - The Saskatchewan Court of Appeal held that the trial judge was not empowered to adjourn the sen­tenc­ing proceedings as he did and remitted the matter for sentencing according to law - The trial judge, taking into account that the accused had spent nine months on remand and six months in isolation, imposed an additional 90 days' imprison­ment and three years' probation, six months of which were to be spent in iso­lation - The Crown appealed the sen­tence and ques­tioned the validity of the sentenc­ing circle - The Saskatchewan Court of Appeal held that the sentencing circle process was valid and that the cir­cle's recommendations had an important role in assessing the fitness of the sentence - See paragraph 72.

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5861

Sentence - Assault - The accused was convicted of sexual assault, uttering a death threat and assault - The victim was his former spousal partner - They had separated shortly before the offences occurred - The trial judge convened a sentencing circle - Based on the circle's recommendations, the trial judge adjourned the sentencing for one year and ordered that the accused spend the year in isolation on an island on conditions endorsed by the circle - The Saskatchewan Court of Appeal held that the trial judge was not empowered to adjourn the sentencing proceedings as he did and remitted the matter for sentencing according to law - The trial judge, taking into account that the accused had spent nine months on remand and six months in isolation, imposed an additional 90 days' imprisonment and three years' probation, six months of which were to be spent in isolation under roughly the same conditions as the first six months - The Saskatchewan Court of Appeal held that the sentence conveyed sufficient de­nunciation and accorded with the principle of parity and was not demonstrably unfit - See paragraphs 73 to 93.

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5861 ].

Cases Noticed:

Saila v. R., [1984] N.W.T.R. 176, consd. [para. 38].

R. v. Malboeuf, [1982] 4 W.W.R. 573; 16 Sask.R. 77 (C.A.), refd to. [para. 38].

R. v. Fuller (1968), 5 C.R.N.S. 148 (Man. C.A.), refd to. [para. 38].

R. v. Melnyk, [1974] 6 W.W.R. 202 (B.C.S.C.), refd to. [para. 38].

R. v. Constant (1978), 40 C.C.C.(2d) 329 (S.C.C.), consd. [para. 38].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120; 101 C.C.C.(3d) 124 (C.A.), refd to. [para. 42].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 291; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 42].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 42].

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. 42].

R. v. Ratt (F.J.), [1997] Sask.R. Uned.086 (C.A.), consd. [para. 44].

R. v. Charles (G.), [1997] Sask.R. Uned.085 (C.A.), refd to. [para. 44].

R. v. Joseyounen, [1995] 6 W.W.R. 438 (Sask. Prov. Ct.), refd to. [para. 44].

R. v. Dunn (J.), [1995] 1 S.C.R. 226; 176 N.R. 375; 79 O.A.C. 161, refd to. [para. 76].

R. v. Scidmore (1996), 112 C.C.C.(3d) 28 (Ont. C.A.), refd to. [para. 76].

R. v. J.W. (1997), 99 O.A.C. 161; 33 O.R.(3d) 225 (C.A.), refd to. [para. 76].

R. v. Horvath (B.A.) (1997), 152 Sask.R. 277; 140 W.A.C. 277 (C.A.), refd to. [para. 83].

R. v. Bird (S.D.) (1992), 105 Sask.R. 161; 32 W.A.C. 161 (C.A.), consd. [para. 133].

R. v. Cappo (T.) (1993), 116 Sask.R. 15; 59 W.A.C. 15 (C.A.), consd. [para. 133].

R. v. Jackson (D.H.) (1994), 116 Sask.R. 146; 59 W.A.C. 146 (C.A.), consd. [para. 133].

Woods Manufacturing Co. v. Canada (At­torney General), [1951] S.C.R. 504, refd to. [para. 136].

R. v. Baldhead, [1966] 4 C.C.C. 183 (Sask. C.A.), refd to. [para. 138].

R. v. McGinn (1989), 75 Sask.R. 161; 49 C.C.C.(3d) 137 (C.A.), refd to. [para. 138].

R. v. Zimmer (1991), 89 Sask.R. 281; 63 C.C.C.(3d) 61 (C.A.), refd to. [para. 139].

R. v. Cheekinew (L.J.) (1993), 108 Sask.R. 114; 80 C.C.C.(3d) 143 (Q.B.), refd to. [para. 141].

R. v. Wolverine and Bernard, [1987] 3 W.W.R. 475; 59 Sask.R. 22; 87 C.C.C.(3d) 56 (Q.B.), refd to. [para. 142].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 145].

R. v. Morrissette (1970), 75 W.W.R.(N.S.) 644; 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 145].

R. v. Van De Wiele, [1997] 3 W.W.R. 477; 152 Sask.R. 65; 140 W.A.C. 65 (C.A.), refd to. [para. 174].

R. v. McDonald (D.P.) (1997), 152 Sask.R. 81; 140 W.A.C. 81; 5 C.R.(5th) 189 (C.A.), refd to. [para. 174].

R. v. Keller (A.A.), [1997] 158 Sask.R. 181; 153 W.A.C. 181 (C.A.), refd to. [para. 174].

R. v. Roberts (W.S.) (1995), 128 Sask.R. 158; 85 W.A.C. 158 (C.A.), refd to. [para. 178].

R. v. Beatty (1982), 17 Sask.R. 91; 69 C.C.C.(2d) 223 (C.A.), refd to. [para. 183].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 737(2)(h) [para. 27].

Authors and Works Noticed:

Canada, House of Commons Debates, June 15, 1995, p. 13,922 [para. 173].

Hart, H.L., Prolegomenon to the Principles of Punishment, in Punishment and Re­sponsibility (1968), generally [para. 170].

Llewellyn and Hoebel, The Cheyenne Way, generally [para. 35].

Thomas, D.A., Principles of Sentencing (2nd Ed. 1980), pp. 8, 236 [para. 33].

Van Ness, D.W., New Wine and Old Wineskins: Four Challenges for Restora­tive Justice (1990), 4 Crim. L. Forum 251, p. 258 [para. 147].

Von Hirsch, Andrew, Doing Justice: The Principle of Commensurate Deserts, in Sentencing (1981), p. 247 [para. 167].

Counsel:

D.M. Brown, Q.C., for the Crown;

G. Morin and S. Robinson, Q.C., for the respondent.

This appeal was heard on April 19, 1996, before Bayda, C.J.S., Cameron and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on December 18, 1997, in­cluding the following opinions:

Bayda, C.J.S. (Jackson, J.A., concurring) - see paragraphs 1 to 94;

Cameron, J.A. (concurring in the result) - see paragraphs 95 to 190.