R. v. Williams (P.V.), (2013) 343 Nfld. & P.E.I.R. 1 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 24, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 343 Nfld. & P.E.I.R. 1 (NLPC)

R. v. Williams (P.V.) (2013), 343 Nfld. & P.E.I.R. 1 (NLPC);

    1066 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. OC.31

Her Majesty the Queen v. Peter Van Williams

(2013 PCNL 1313A00044)

Indexed As: R. v. Williams (P.V.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

October 25, 2013.

Summary:

Williams had pleaded guilty to assault, breach of probation and failure to appear in court, (ss. 145(5), 266(b) and 733.1(1) of the Criminal Code). The offences occurred in 2009, prior to the proclamation of the Increasing Offenders' Accountability for Victims Act. The Crown proceeded by way of summary conviction in relation to each charge. The sole issue for determination was the imposition of an appropriate sentence. Both counsel submitted that a period of imprisonment should be imposed, though they differed on whether a conditional period of imprisonment was appropriate.

The Newfoundland and Labrador Provincial Court concluded that, despite Williams' previous convictions, this was an appropriate case for sentence to be suspended and for a probation order of 12 months. Williams had through his own efforts illustrated that there were reasonable alternatives to the imposition of a period of imprisonment. The court also concluded that the Increasing Offenders' Accountability for Victims Act had prospective effect only and that a retrospective application would offend s. 11(i) of the Charter; i.e., the right to the benefit of the lesser punishment.

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment (Charter, s. 11(i)) - The offences were committed prior to the proclamation of the Increasing Offenders' Accountability for Victims Act - That Act altered the law in relation to the imposition of victim surcharges - In addition to increasing the amount of the minimum surcharge imposed, it made their imposition mandatory - The Newfoundland and Labrador Provincial Court concluded that the Act had prospective effect only, and that a retrospective application of that Act would offend s. 11(i) of the Charter: "Any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment." - The imposition of a victim surcharge pursuant to the Act constituted a variation in punishment within the meaning of s. 11(i) of the Charter and thus the accused would have had a constitutionally protected right to the benefit of the lesser punishment which was in existence at the time he committed his offences - Considering the accused's financial circumstances, the court imposed a $50 surcharge in relation to each offence, payable within 30 days - See paragraphs 55 to 61.

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence - Benefit of lesser punishment - [See Civil Rights - Topic 3131.1 ].

Civil Rights - Topic 8416

Canadian Charter of Rights and Freedoms - Criminal proceedings - Right to lesser punishment where punishment varied - [See Civil Rights - Topic 3131.1 ].

Constitutional Law - Topic 6532

Federal jurisdiction (s. 91) - Criminal law - Sentencing - Victim fine surcharge - [See Civil Rights - Topic 3131.1 ].

Criminal Law - Topic 5609

Punishment (sentence) - General principles - Right to benefit of lesser punishment - [See Civil Rights - Topic 3131.1 ].

Criminal Law - Topic 5627

Punishments (sentence) - Fines, penalties and compensation orders - Victim fine surcharge - The accused pleaded guilty to three offences that were committed prior to the proclamation of the Increasing Offenders' Accountability for Victims Act - That Act altered the law in relation to the imposition of victim surcharges - In addition to increasing the amount of the minimum surcharge imposed, it made their imposition mandatory - At issue was whether the Act applied retrospectively - The Newfoundland and Labrador Provincial Court concluded that the Act had prospective effect only - The Act was silent on the issue of retrospective effect - Thus, the presumption that legislation affecting substantive rights only applied prospectively was not displaced by the legislation - The Act affected substantive rights and in the absence of a legislative intent for it to apply retrospectively, it had prospective effect only, i.e., it only applied to those who committed an offence after its coming into force - See paragraphs 47 to 54.

Criminal Law - Topic 5627

Punishments (sentence) - Fines, penalties and compensation orders - Victim fine surcharge - [See Civil Rights - Topic 3131.1 ].

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5726

Punishments (sentence) - Probation or probation order - Circumstances when permissible - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5731

Punishments (sentence) - Probation or probation order - Breach of - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The accused, under the influence of alcohol, had pulled the victim's hair and broken a window while inside the victim's residence - At the time (2009), he was bound by a probation order which required that he "abstain from drinking alcohol" - He pleaded guilty to assault, breach of probation and failure to appear in court (summary conviction) - He had a related criminal record, but had not committed an offence since 2009 - Both counsel submitted that a period of imprisonment should be imposed, though they differed on whether a conditional period of imprisonment was appropriate - The accused, 42 years of age, said that his "life is totally different" now -Abstained from the consumption of alcohol since 2011 - Self-employed as a roofing contractor - In a stable relationship with a nurse who was pregnant with their child - Paying child support for two children - The Newfoundland and Labrador Provincial Court suspended sentence and placed the accused on probation for 12 months - The accused had through his own efforts illustrated that there were reasonable alternatives to the imposition of a period of imprisonment - The court also concluded that the Increasing Offenders' Accountability for Victims Act had prospective effect only and that a retrospective application would offend s. 11(i) of the Charter (the right to the benefit of the lesser punishment) - In the end result, the court imposed a $50 surcharge in relation to each offence, payable within 30 days - See paragraphs 36 to 40, 61.

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5921

Sentence - Being at large or failing to appear - [See Criminal Law - Topic 5861 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See first Criminal Law - Topic 5627 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See Civil Rights - Topic 3131.1 ].

Trials - Topic 3553

Punishments - Sentencing - Victim fine surcharge - [See first Criminal Law - Topic 5627 ].

Cases Noticed:

R. v. Lundrigan (D.A.) (2012), 324 Nfld. & P.E.I.R. 270; 1007 A.P.R. 270; 2012 NLCA 43, refd to. [para. 10].

R. v. Webber (C.G.), [2013] A.R. Uned. 125; 2013 ABCA 189, refd to. [para. 16].

R. v. Cluney (N.) (2013), 338 Nfld. & P.E.I.R. 57; 1049 A.P.R. 57; 2013 NLCA 46, refd to. [para. 19].

R. v. Briand (R.) et al. (2010), 302 Nfld. & P.E.I.R. 67; 938 A.P.R. 67; 2010 NLCA 67, refd to. [para. 20].

R. v. J.B. (2013), 341 Nfld. & P.E.I.R. 329; 1061 A.P.R. 329; 2013 NLCA 61, refd to. [para. 22].

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. 22].

R. v. Oake (B.) (2010), 296 Nfld. & P.E.I.R. 79; 915 A.P.R. 79 (N.L.C.A.), refd to. [para. 27].

R. v. Norman (J.) (2011), 313 Nfld. & P.E.I.R. 107; 974 A.P.R. 107 (N.L. Prov. Ct.), refd to. [para. 29].

R. v. Marche (R.), [2013] Nfld. & P.E.I.R. Uned. 48 (N.L. Prov. Ct), refd to. [para. 30].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211 (N.L.C.A.), refd to. [para. 31].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266; 2011 NLCA 16, refd to. [para. 32].

R. v. Williams, [2007] N.J. No. 97 (Prov. Ct.), refd to. [para. 34].

R. v. Cox, [2009] N.J. No. 333 (Prov. Ct.), refd to. [para. 35].

R. v. Knott (D.W.) et al. (2012), 433 N.R. 38; 324 B.C.A.C. 1; 551 W.A.C. 1; 2012 SCC 42, refd to. [para. 37].

Elias v. R.; Issa v. R., [2013] HCA 31, refd to. [para. 37].

R. v. Bacon (J.) (2013), 342 B.C.A.C. 158; 585 W.A.C. 158 (C.A.), refd to. [para. 37].

R. v. Dineley (S.), [2012] 3 S.C.R. 272; 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 48].

R. v. Clarke (C.) (2013), 302 O.A.C. 40 (C.A.), refd to. [para. 49].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 50].

R. v. A.A.M. (2013), 335 Nfld. & P.E.I.R. 199; 1040 A.P.R. 199 (N.L.C.A.), refd to. [para. 51].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 56].

R. v. Rodgers - see R. v. Jackpine (R.).

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(i) [paras. 5, 55].

Increasing Offenders' Accountability for Victims Act, S.C. 2013, c. 11, generally [para. 5].

Counsel:

L. St. Croix, for Her Majesty the Queen;

J. Luscombe, for Mr. Williams.

This sentencing matter was heard at Corner Brook, NL, on October 24, 2013, before Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment, with reasons, dated October 25, 2013.