R. v. Traverse (B.R.),

• Jurisdiction: Manitoba
• Judge: Huband, Monnin and Steel, JJ.A.
• Neutral Citation: 2006 MBCA 7
• Citation: 2006 MBCA 7,(2006), 201 Man.R.(2d) 212 (CA),205 CCC (3d) 33,35 CR (6th) 1,201 Man R (2d) 212,201 ManR(2d) 212,(2006), 201 ManR(2d) 212 (CA),201 Man.R.(2d) 212
• Date: 20 September 2005
• Court: Court of Appeal (Manitoba)

R. v. Traverse (B.R.) (2006), 201 Man.R.(2d) 212 (CA);

    366 W.A.C. 212

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JA.044

Her Majesty The Queen (respondent) v. Bryan Reuben Traverse (accused/appellant)

(AR 05-30-06079; 2006 MBCA 7)

Indexed As: R. v. Traverse (B.R.)

Manitoba Court of Appeal

Huband, Monnin and Steel, JJ.A.

January 17, 2006.

Summary:

The accused was convicted of and sentenced for three counts of breach of a probation order. He appealed.

The Manitoba Court of Appeal, in a decision reported at [2005] Man.R.(2d) Uned. 86, dismissed the conviction appeal.

The Manitoba Court of Appeal, per Steel and Huband, JJ.A., allowed the sentence appeal in part. Monnin, J.A., dissenting in part, would have dismissed the sentence appeal.

Criminal Law - Topic 5724

Punishments (sentence) - Probation or probation order - Unreasonable conditions - An accused argued that a probation condition that he abstain from alcohol was inappropriate because alcohol was not related to the offences for which he was sentenced - The Manitoba Court of Appeal disagreed - A reasonable condition would generally be linked to the offence, but not always - It might be that although not linked to the specific offence, the condition was linked to the needs of the offender - Here, the accused had a history of being intoxicated, becoming violent and committing serious offences - See paragraphs 14 to 18.

Criminal Law - Topic 5724

Punishments (sentence) - Probation or probation order - Unreasonable conditions - The accused's probation order was supervised by the Criminal Organization/High Risk Offender Unit (COHROU) of Probation Services, which monitored the compliance of high risk offenders with their probation conditions - The accused took exception to the probation condition that required him to cooperate with the supervision and comply with the directions of COHROU of Probation Services - The Manitoba Court of Appeal ordered that the condition be deleted from the probation order - The court held that the condition was not only vague, but improper delegation - See paragraphs 23 to 39.

Criminal Law - Topic 5726

Punishments (sentence) - Probation or probation order - Circumstances when permissible - The accused was convicted of three counts of breaching a probation order - He was sentenced to a period of incarceration, to be followed by probation - The accused appealed, submitting that because he had such a long history of breaching probation orders, further probation was simply useless and set him up for failure - Thus, the breaches should have been dealt with by a sentence of incarceration only - The Manitoba Court of Appeal rejected the submission - The sentencing judge concluded that the accused might not have received the full benefit of past probation orders, not only because of his resistance to counselling, but also because he had not spent any significant time out of custody - See paragraphs 8 to 13.

Criminal Law - Topic 5736

Punishments (sentence) - Probation or probation order - Treatment order - An accused appealed a probation condition respecting psychiatric treatment on the basis that he did not consent to the condition - The Manitoba Court of Appeal found that the accused did consent to the condition - The court stated that "If the judge misunderstood and consent was not being provided, the accused could have said something. He was not shy. On two occasions, he had a conversation with the judge while she was in the midst of delivering her reasons concerning his probation order." - See paragraphs 19 to 22.

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5726 ].

Cases Noticed:

R. v. Woroby (T.W.) (2003), 173 Man.R.(2d) 178; 293 W.A.C. 178; 2003 MBCA 41, refd to. [para. 15].

R. v. Ziatas (1973), 13 C.C.C.(2d) 287 (Ont. C.A.), refd to. [para. 15].

R. v. Kootenay (E.P.) (2000), 271 A.R. 156; 234 W.A.C. 156; 150 C.C.C.(3d) 311; 2000 ABCA 289, refd to. [para. 17].

R. v. Sterner, [1982] 1 S.C.R. 173; 40 N.R. 423; 14 Sask.R. 79, refd to. [para. 30].

Sterner v. Vander Kracht - see R. v. Sterner.

R. v. Tanner, [1983] 6 W.W.R. 208 (Man. Prov. Ct.), refd to. [paras. 31, 43].

R. v. P.D.F. (1987), 57 C.R.(3d) 22 (Ont. Prov. Ct.), refd to. [para. 33].

R. v. Beam (1954), 109 C.C.C. 381 (Ont. C.A.), refd to. [para. 33].

M.J.L., Re (1990), 112 A.R. 231 (Prov. Ct.), refd to. [para. 33].

R. v. Zarubin (G.) (1994), 123 Sask.R. 161; 74 W.A.C. 161 (C.A.), refd to. [para. 33].

R. v. Doe, [2001] O.J. No. 3542 (C.J.), refd to. [para. 37].

R. v. Grant (M.E.) (1990), 105 A.R. 304 (C.A.), refd to. [para. 44].

R. v. Thompson (B.W.) (2003), 183 B.C.A.C. 42; 301 W.A.C. 42; 2003 BCCA 308, refd to. [para. 45].

Authors and Works Noticed:

Berg, David, Vagueness and Impossibility in Probation Conditions (1996), 38 Crim. L.Q. 472, p. 493 [para. 38].

Ruby, Clayton C., Sentencing (6th Ed. 2004), para. 10.82 [para. 30].

Counsel:

J.P. Miller, for the appellant;

C.L. Sholdice, for the respondent.

This appeal was heard on September 20, 2005, by Huband, Monnin and Steel, JJ.A., of the Manitoba Court of Appeal. On January 17, 2006, the court delivered its decision, which included the following opinions:

Steel, J.A. (Huband, J.A., concurring) - see paragraphs 1 to 41;

Monnin, J.A., dissenting in part - see paragraphs 42 to 48.