R. v. Gill and Van Dyke

Parties

Procedural Posture

Criminal / Sentencing / Reasons for Judgment on Sentence

Legal Issues

1. 1 Whether conviction under s.85 should be stayed because of conviction under s.244 (duplication of convictions)
2. 2 Proper interpretation of the jury's verdict and limits on sentencing judge making independent factual findings
3. 3 Application of s.85 exclusion for s.244 conduct and Kienapple principles

Ratio Decidendi

The s.85 conviction was conditionally stayed because the jury charge on s.85 focused on the shooting and the s.85 provision expressly excludes s.244 conduct; the sentencing judge could not, under Punko and related authorities, make independent factual findings to re-characterize the jury's verdict to support a non‑excluded s.85 conviction. Sentences of five years concurrent were imposed on counts 1, 2 and 4 with specified credit for time served; firearm prohibition and DNA orders were imposed as set out in the reasons.

Court Disposition

Count 3 (use of a firearm while committing the assault, s.85) conditionally stayed; counts 1 (s.348(1)(b)), 2 (s.268(2)) and 4 (s.244(2)(b)) each sentenced to five years to be served concurrently; global effective sentence five years with specified time served credits.

Orders

• For Bradley Jay Van Dyke: conditional stay of count 3 (s.85); five year sentence on counts 1,2 and 4 to be served concurrently; credit for time served 21 months; lifetime firearms prohibition order under s.109(3); DNA order pursuant to s.487.051.
• For Clarence Marshall Freeman Gill: conditional stay of count 3 (s.85); five year sentence on counts 1,2 and 4 to be served concurrently; credit for time served two weeks; prohibition order under s.109(2); DNA order pursuant to s.487.051.