R. v. Wells (J.W.), (1998) 216 A.R. 61 (CA)

• Judge: Sulatycky, Cairns and Belzil, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 15, 1998
• Citations: (1998), 216 A.R. 61 (CA)

R. v. Wells (J.W.) (1998), 216 A.R. 61 (CA);

   175 W.A.C. 61

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MY.001

Her Majesty The Queen (respondent) v. James Warren Wells (appellant)

(Appeal No. 97-16918)

Indexed As: R. v. Wells (J.W.)

Alberta Court of Appeal

Sulatycky, Cairns and Belzil, JJ.A.

April 15, 1998.

Summary:

The aboriginal accused was convicted by a jury of sexual assault. The sentencing judge sentenced the accused to 20 months' impris­onment. The accused appealed his sentence.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5605

Punishments (sentence) - General prin­ciples - Alternative sanctions - Section 718.2(e) of the Criminal Code provided that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" - The Alberta Court of Appeal stated that "'circumstances'... must be given an ex­pan­sive interpretation. The term circum­stances in the context of imposing sanc­tions for criminal conduct must include such things as the gravity and nature of the offence committed, the record of the accused, impact on victims and the com­munity, the need for denunciation and deterrence, the need to maintain proportionality, aggravat­ing and mitigating factors not restricted to those outlined in s. 718.2(a), the particular circumstances applicable to the accused, as well as relevant case law." - Further, "reasonable" had to mean commensurate with the pur­poses and principles found in other sentencing provisions of the Code - See paragraphs 45, 46.

Criminal Law - Topic 5605

Punishments (sentence) - General prin­ciples - Alternative sanctions - Section 718.2(e) of the Criminal Code provided that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" - The Alberta Court of Appeal stated that "Parliament must have intended that in dealing with aboriginal offenders a Court would have regard to all of the circum­stances referred to above, together with the additional circumstances particular to aboriginal offenders which would include not only social factors particular to aborig­inal Canadians but as well the fact that within the aboriginal community alterna­tive approaches to sanctions, including such things as sentencing circles and input from tribal elders, are being developed. In this context, the phrase "circumstances of aboriginal offenders" would also have to take into account geographic availability of alternative sanctions as well as such things as tribal support where applicable." - See paragraph 47.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 35 year old aboriginal accused was convicted of sexual assault - The 18 year old victim was asleep in her bedroom at the time of the offence - The accused was impaired - The accused had a prior record - He had a serious alcohol problem - The sentencing judge sentenced the accused to 20 months' imprisonment - The accused appealed - He sought a conditional sen­tence and introduced new evidence that he would be accepted into a native alcohol treatment centre - The accused also claimed that the sentencing judge failed to place sufficient emphasis on s. 718.2(e) of the Criminal Code - The Alberta Court of Appeal dismissed the appeal - A condi­tional sentence was not appropriate given the serious nature of the sexual assault - Further, s. 718.2(e) did not mean that "an alternative to imprisonment must be imposed as a sentence".

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - [See both Criminal Law - Topic 5605 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - [See second Criminal Law - Topic 5605 and Crimi­nal Law - Topic 5720.4 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5720.4 ].

Words and Phrases

Circumstances - The Alberta Court of Appeal considered the word "circum­stances" in the phrase "all available sanc­tions other than imprisonment that are reasonable in the circumstances should be considered for all offenders" as found in s. 718(e) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 45, 46.

Words and Phrases

Circumstances of aboriginal offenders - The Alberta Court of Appeal considered the phrase "circumstances of aboriginal offenders" in the phrase "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" as found in s. 718(e) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 47.

Words and Phrases

Reasonable in the circumstances - The Alberta Court of Appeal considered the phrase "reasonable in the circumstances" in the phrase "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders" as found in s. 718(e) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 45, 46.

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), refd to. [para. 8].

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; 102 C.C.C.(3d) 193, refd to. [para. 30].

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; 105 C.C.C.(3d) 327, refd to. [para. 30].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 30].

R. v. Hunter (E.) (1997), 208 A.R. 321 (Q.B.), refd to. [para. 31].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321 (C.A.), consd. [para. 32].

R. v. Rabbit (1992), 125 A.R. 43; 14 W.A.C. 43 (C.A.), refd to. [para. 49].

R. v. Brown (C.R.) et al. (1992), 125 A.R. 150; 14 W.A.C. 150 (C.A.), refd to. [para. 50].

R. v. McDonald (D.P.) (1997), 152 Sask.R. 81; 140 W.A.C. 81; 113 C.C.C.(3d) 418 (C.A.), refd to. [para. 53].

R. v. Gladue (J.T.) (1997), 98 B.C.A.C. 120; 161 W.A.C. 120; 119 C.C.C.(3d) 481 (C.A.), refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 43].

Counsel:

G. Tomljanovic, for the respondent;

M. Bryant, for the appellant.

This appeal was heard on March 9, 1998, before Sulatycky, Cairns and Belzil, JJ.A., of the Alberta Court of Appeal.

On April 15, 1998, the following memor­andum of judgment was delivered by the Court of Appeal.