R. v. Zinck (T.R.), (2003) 300 N.R. 201 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 300 N.R. 201 (SCC);2003 SCC 6;[2003] 1 SCR 41;[2003] ACS no 5;222 DLR (4th) 1;674 APR 1;257 NBR (2d) 1;300 NR 201;[2003] SCJ No 5 (QL);8 CR (6th) 1;171 CCC (3d) 1

R. v. Zinck (T.R.) (2003), 300 N.R. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. FE.030

Thomas Robert Zinck (appellant) v. Her Majesty the Queen (respondent) and The Attorney General for Ontario (intervener)

(28367; 2003 SCC 6; 2003 CSC 6)

Indexed As: R. v. Zinck (T.R.)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

February 20, 2003.

Summary:

The accused was charged with second degree murder. He pled guilty to manslaugh­ter. The sentencing judge imposed a sentence of 12 years' imprisonment with a restriction imposed under s. 743.6 of the Criminal Code that the accused serve at least one half of his sentence before being eligible to apply for parole. The accused sought leave to appeal the sentence.

The New Brunswick Court of Appeal, in a decision reported at 209 N.B.R.(2d) 257; 535 A.P.R. 257, granted leave to appeal but dismissed the appeal. Rice, J.A., dissenting, would have allowed the appeal and struck down the order made under s. 743.6 of the Code. The accused appealed on the issue of the delayed parole eligibility. He argued that the order to delay parole was made without evidence of the exceptional circumstances which would justify it, without sufficient reasons being given by the sentencing judge, and after a hearing conducted in breach of procedural fairness.

The Supreme Court of Canada dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See third Criminal Law - Topic 5670 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Suffi­ciency of - [See third Criminal Law - Topic 5670 ].

Criminal Law - Topic 5660

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - With­out parole - [See all Criminal Law - Topic 5670 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The Supreme Court of Canada discussed the proper approach to the application of s. 743.6 of the Criminal Code (delayed parole eligibility) - The court stated that "courts must perform a double weighing exercise. First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of de­terrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weigh­ing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circum­stances of the case. This decision may be made, for example, if, after due considera­tion of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the im­peratives of denun­ciation and deterrence. This two-stage process, however, does not require a spe­cial and distinct hearing. It should be viewed as one sentencing pro­cess, where issues of procedural fairness will have to be carefully considered" - See paragraph 33.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The Supreme Court of Canada stated that "[t]he need for fairness does not impose any obligation to give written notice to the offender before the hearing that delayed parole [under s. 743.6 of the Criminal Code] will be applied for ... The obligation to assure fairness in the process is of criti­cal importance, but it may be discharged in different and equally valid ways. When possible, the Crown may give notice in writing or verbally before the hearing. The application may be made at the sentencing hearing itself. The issue may also be raised by the judge in the course of the hearing. Whenever and however the question is brought up, the offender must be informed clearly that he is at risk in this respect. The offender must be allowed to make sub­missions and to introduce additional evi­dence, if needed, in response to the request for delayed parole. Courts should be gener­ous if adjournments are requested for this purpose. Fairness must be preserved, but in a flexible manner, taking into account the specifics of each case, without pointless procedural constraints. At the end of the process, the offender is entitled to reasons. The judgment must state with sufficient clarity the reasons why the delayed parole order is made" - See paragraphs 35 to 37.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused pled guilty to manslaughter - He was sentenced to 12 years' imprison­ment with a restriction imposed under s. 743.6 of the Criminal Code that he serve at least one half of his sentence before being eligible to apply for parole - With respect to the delayed parole, the sentencing judge's reasons stated "having regards to s. 743.6 of the Criminal Code, I am satisfied, having regards to the circumstances of the commission of the offence and the charac­ter and the circumstances of the offender, that the expression of society's denunci­ation of the offence requires an order that the portion of the sentence that must be served before the offender may be released on full parole is at least one-half of the sentence" - The Supreme Court of Canada stated the sentencing judge's reasons deal­ing with the issue of delayed parole, although not extensive, permitted an appel­late court to ascertain and review the basis of the trial judge's order - The standard in R. v. Sheppard (S.C.C.) was met - See paragraph 39.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused pled guilty to manslaughter - At the sentencing hearing, close to the end of the Crown's submissions, the Crown asked the sentencing judge to con­sider delaying parole eligibility under s. 743.6 of the Criminal Code - After a break of a few hours, defence counsel made representations - His argument addressed what should be the appropriate sentence and he never mentioned the issue of delayed parole - The sentencing judge imposed a sentence of 12 years' imprison­ment with a restriction imposed under s. 743.6 of the Criminal Code that the accused serve at least one half of his sen­tence before being eligible to apply for parole - The accused argued that the order to delay parole was made after a hearing conducted in breach of procedural fairness - The Supreme Court of Canada held that procedural fairness was observed - The accused was given a sufficient opportunity to respond to the Crown's request for delayed parole, but failed to use it - See paragraph 40.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sen­tence - [See third Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Goulet (J.) (1995), 79 O.A.C. 233; 97 C.C.C.(3d) 61 (C.A.), refd to. [para. 11].

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. 18].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243; 80 C.C.C.(3d) 492, refd to. [para. 20].

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. 21].

R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, refd to. [para. 23].

R. v. Dankyi (E.) (1993), 59 Q.A.C. 118; 86 C.C.C.(3d) 368 (C.A.), refd to. [para. 24].

R. v. Boulanger, [1995] R.J.Q. 1975 (C.A.), refd to. [para. 27].

R. v. Ferguson (N.A.) (1995), 64 B.C.A.C. 211; 105 W.A.C. 211 (C.A.), refd to. [para. 27].

R. v. Smith (1995), 37 C.R.(4th) 360 (Ont. Gen. Div.), refd to. [para. 27].

R. v. Osborne (D.A.) (1996), 93 O.A.C. 109; 110 C.C.C.(3d) 161 (C.A.), refd to. [para. 27].

R. v. Nash-Levy (B.M.) (1998), 207 N.B.R.(2d) 45; 529 A.P.R. 45 (C.A.), refd to. [para. 27].

R. v. Traverse (A.) (1998), 129 Man.R.(2d) 138; 180 W.A.C. 138; 126 C.C.C.(3d) 462 (C.A.), refd to. [para. 27].

R. v. Demedeiros (J.), [1999] O.A.C. Uned. 157 (C.A.), refd to. [para. 27].

R. v. Hanley (K.A.) et al. (1998), 228 A.R. 291; 188 W.A.C. 291 (C.A.), refd to. [para. 28].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251 (C.A.), refd to. [para. 28].

R. v. Williston (D.G.) (1999), 209 N.B.R.(2d) 270; 535 A.P.R. 270 (C.A.), refd to. [para. 28].

R. v. Cormier (D.) (1999), 209 N.B.R.(2d) 289; 535 A.P.R. 289; 140 C.C.C.(3d) 87 (C.A.), refd to. [para. 28].

R. v. Dodd (B.) (1999), 180 Nfld. & P.E.I.R. 145; 548 A.P.R. 145; 139 C.C.C.(3d) 2 (Nfld. C.A.), refd to. [para. 28].

R. v. Corneau, [2001] R.J.Q. 2509 (C.A.), refd to. [para. 34].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 37].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 743.6 [para. 13].

Authors and Works Noticed:

Dumont, H., Pénologie: Le droit canadien relatif aux peines et aux sentences (1993), pp. 151 [para. 18]; 299, 333 [para. 19].

Manson, A., Judges and Parole Eligibility: Section 741.2 (1995), 37 C.R.(4th) 381, generally [para. 18].

Counsel:

Eric J. Doiron, for the appellant;

Michel O. LeBlanc and Luc J. Labonté, for the respondent;

David Finley, for the intervener.

Solicitors of Record:

Eric J. Doiron, Moncton, New Brunswick, for the appellant;

The Attorney General of New Brunswick, Moncton, New Brunswick, for the re­spondent;

The Attorney General for Ontario, Toronto, Ontario, for the intervener.

This appeal was heard on October 7, 2002, before McLachlin, C.J.C., Gonthier, Iacobuc­ci, Major, Bastarache, Binnie, Arbour, Lebel and Deschamps, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by LeBel, J., on February 20, 2003.