R. v. Tkachuk (E.A.), (2001) 293 A.R. 171 (CA)

• Judge: Martin,Nash,Picard
• Neutral Citation: 2001 ABCA 243
• Court: Court of Appeal (Alberta)
• Date: 17 April 2001
• Citation: (2001), 293 A.R. 171 (CA),2001 ABCA 243,293 AR 171,159 CCC (3d) 434,[2002] AJ No 1277 (QL),17 MVR (4th) 4,257 WAC 171,257 W.A.C. 171,(2001), 293 AR 171 (CA),[2002] A.J. No 1277 (QL),293 A.R. 171

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171 (CA);

    257 W.A.C. 171

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. OC.090

Her Majesty the Queen (respondent) v. Eldon Arnold Tkachuk (appellant)

(0003-0295-A; 2001 ABCA 243)

Indexed As: R. v. Tkachuk (E.A.)

Alberta Court of Appeal

Picard, J.A., Nash and Martin, JJ.(ad hoc)

October 10, 2001.

Summary:

The accused pleaded guilty to, inter alia, criminal negligence causing bodily harm. The sentencing judge rejected a joint submission for two years' imprisonment and sentenced the accused to three years' imprisonment. The accused appealed.

The Alberta Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 1802

The prosecutor - Role of - The Alberta Court of Appeal stated that it did not believe that recent legislative initiatives directing that crime victims be kept informed about cases which directly involved them gave victims the authority or responsibility to decide whether a prosecution should proceed, and if so, on what terms - The court stated that "That responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution. For example, whether to proceed, and if so on what charge, whether to oppose bail, whether to seek a particular sentence and whether to appeal. Many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties. Abdication of this prosecutorial responsibility to others who are interested in the outcome of the case, but have little or no understanding of the complexities, or even the basic tenets of our justice system, is wrong, and represents a serious threat to the fair administration of criminal justice." - See paragraphs 27 and 28.

Barristers and Solicitors - Topic 1803

The prosecutor - Duties of - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 10.14

General principles - General and definitions - Crime victims' rights legislation - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused, who suffered from depression, attempted to commit suicide by driving into an oncoming vehicle - The driver of the other vehicle was seriously injured and almost died - She was confined to a wheelchair - The accused pleaded guilty to criminal negligence causing bodily harm - The Crown and defence counsel made a joint submission for two years' imprisonment - The sentencing judge rejected the joint submission and sentenced the accused to three years' imprisonment - The Alberta Court of Appeal dismissed the accused's sentence appeal, holding that the sentencing judge rightly rejected the joint submission - The accused deliberately intended to randomly kill or at least inflict life threatening injuries upon a stranger while attempting to commit suicide - His criminal record had 22 convictions spanning 15 years and included a conviction for impaired driving - The court held that an appropriate sentence would have been in the range of seven to 10 years' imprisonment - However, because the Crown did not appeal sentence, the court affirmed the sentence.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Alberta Court of Appeal set out the following principles for a judge to consider in determining whether to follow a joint submission on sentencing: "i) A sentencing judge must give serious consideration to the joint sentencing submission; ii) The joint submission should be accepted by the sentencing judge unless it is considered to be unfit or unreasonable; iii) If the sentencing judge is disinclined to impose the sentence recommended, the judge should so advise counsel and permit them to make further submissions in support of their original position and against the suggestion that the submission be departed from. This would provide counsel an opportunity to answer any concerns the sentencing judge may have for departing from the recommended sentence; iv) If, after those submissions, the sentencing judge remains of the view that the joint submission is unfit or unreasonable, the judge may impose a different sentence, but should generally give reasons for doing so." - See paragraph 32.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Alberta Court of Appeal set out the obligations of counsel wishing to resolve a case by way of guilty plea and a joint submission on sentence - The court stated that: "i) The facts of the case ought to be fully disclosed so that the sentencing judge is aware of all the circumstances, including the aggravating and mitigating factors [and] ii) Where the proposed sentence is not obviously within the accepted range of sentence for that offence, counsel, and particularly Crown counsel, should explain to the court the reasons for departing from a sentence within that range." - However, the court added that "The requirement to inform the sentencing judge of all of the circumstances guiding the joint submission was not intended to be taken as a direction that counsel must reveal their negotiating positions or the substance of their discussions leading to the agreement. These are private negotiations which need not, and normally should not, be disclosed to the court." - See paragraphs 33 and 34.

Criminal Law - Topic 5823

Sentencing - Sentencing procedure and rights of the accused - Role of Crown - The accused pleaded guilty to criminal negligence causing bodily harm after attempting to commit suicide by driving into an oncoming car - In discussing the appropriateness of a joint submission, the Alberta Court of Appeal stated that a victim's plea for a lenient or harsh sentence should be ignored by the Crown and the sentencing judge - The court stated that "Society's interest in the imposition of a fit sentence in a case of this nature must override the compassionate or vengeful views of the victim. A sentencing regime cannot administer justice or maintain public confidence if it allows itself to be guided by the wishes of a victim to impose either a harsh or a lenient sentence." - See paragraph 24.

Criminal Law - Topic 5823.2

Sentencing - Sentencing procedure and rights of the accused - Role of judge - [See Criminal Law - Topic 5823 ].

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - The accused attempted to commit suicide by driving into an oncoming vehicle - The driver of the other vehicle was seriously injured - The accused pleaded guilty to criminal negligence causing bodily harm - The Crown made a joint submission for two years' imprisonment based on, inter alia, the guilty plea having eliminated the necessity of having the victim testify - The Alberta Court of Appeal stated that this was an appropriate consideration in cases where the victim had been subject to trauma or violence, particularity in cases of sexual assault - Here, the victim was outraged at the changes in her life and would gladly have testified - See paragraph 21.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - [See Criminal Law - Topic 5823 ].

Criminal Law - Topic 5863.1

Sentence - Criminal negligence causing death or bodily harm - [See first Criminal Law - Topic 5813 ].

Cases Noticed:

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20 (C.A.), refd to. [para. 9].

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. 48].

R. v. Veresh (B.) (1994), 157 A.R. 354; 77 W.A.C. 354 (C.A.), refd to. [para. 14].

R. v. Bremner (R.) (2000), 138 B.C.A.C. 200; 226 W.A.C. 200; 146 C.C.C.(3d) 59 (C.A.), refd to. [para. 25].

R. v. Friginette (M.G) (1994), 53 B.C.A.C. 153; 87 W.A.C. 153 (C.A.), refd to. [para. 25].

R. v. Roberts (E.W.) (2001), 289 A.R. 127 (Q.B.), refd to. [para. 34].

Counsel:

M.P. Stone, for the appellant;

A.R. Schlayer, for the respondent.

This appeal was heard on April 17, 2001, by Picard, J.A., Nash and Martin, JJ.(ad hoc), of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on October 10, 2001.