R. v. West

R. v. West

The trial judge erred by imposing a CSO without applying the two-stage Fice analysis and by failing to conclude that a CSO was unavailable because the offences could attract a penitentiary term; the Crown's appeal is allowed, the CSO and probation as imposed are quashed, and the court substitutes 565 days imprisonment effective January 6, 2021 with one-for-one credit for days served on the CSO until the date the offender is taken into custody, while preserving ancillary orders.

Citation
2021 NSSC 113
Parties
Crown/appellant: Her Majesty the Queen; Defendant/respondent: Nirica Mariah Marie West
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
30 March 2021
Procedural Posture
Criminal — Sentence Appeal / Appeal From Provincial Court Sentence; Re Sentencing by Supreme Court
Outcome
Appeal allowed; original CSO and probation quashed; substituted custodial sentence imposed and ancillary orders preserved
Legal Topics
Conditional Sentence Orders, Pre Sentence Custody Credit, Totality Principle, Probation, Availability Vs Appropriateness of CSO
Source Language
English
Criminal Law Sentencing Appeals Conditional Sentence Orders Pre Sentence Custody Credit Totality Principle Probation Availability Vs Appropriateness of CSO

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Parties

Her Majesty the Queen

Crown/appellant

Nirica Mariah Marie West

Defendant/respondent

Procedural Posture

Criminal — Sentence Appeal / Appeal From Provincial Court Sentence; Re Sentencing by Supreme Court

Legal Issues

  1. 1 Whether a conditional sentence order (CSO) was legally available under R v Fice
  2. 2 Whether the trial judge erred in law by imposing a CSO without applying Fice
  3. 3 Whether a CSO was an appropriate sentence given the offender's record and nature of offences

Ratio Decidendi

The trial judge erred by imposing a CSO without applying the two-stage Fice analysis and by failing to conclude that a CSO was unavailable because the offences could attract a penitentiary term; the Crown's appeal is allowed, the CSO and probation as imposed are quashed, and the court substitutes 565 days imprisonment effective January 6, 2021 with one-for-one credit for days served on the CSO until the date the offender is taken into custody, while preserving ancillary orders.

Court Disposition

Appeal allowed; original CSO and probation quashed; substituted custodial sentence imposed and ancillary orders preserved

Orders

  • Quash 565-day Conditional Sentence Order (CSO) and 30 months probation imposed January 6, 2021
  • Substitute sentence: 565 days' imprisonment effective January 6, 2021, less one-for-one credit for every day served on the CSO between January 6, 2021 and the date the offender is taken into custody