R. v. Theriault

R. v. Theriault Court Court of Appeal Date 1995-03-21 Citation 1995 NSCA 140 Docket CAC 108308 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A.C. No.108308 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Theriault, 1995 NSCA 140 Freeman, Roscoe and Pugsley, JJ.A. BETWEEN: JAMES WAYNE THERIAULT ) The Appellant appeared ) in person Appellant ) ) ) - and - ) ) ) William Delaney, Esq. ) for the Respondent ) HER MAJESTY THE QUEEN ) ) Respondent ) ) ) Appeal Heard: ) March 16, 1995 ) ) Judgment Delivered: ) March 21, 1995 ) ) ) THE COURT: The appeal from conviction is dismissed; leave to appeal is granted; the appeal is dismissed, per reasons for judgment of Freeman, J.A., Roscoe and Pugsley, JJ.A. concurring. Freeman, J.A.: The appellant James Wayne Theriault is a forty-five year old inmate of the Atlantic Institution at Renous, N. B. appealing and seeking leave to appeal his convictions and sentences totalling one year after pleading guilty to assault with a knife, s. 267 (1) (a) of the Criminal Code, and uttering a death threat, s 264.1(1)(a). Both charges respected a woman with whom he had had a live-in relationship. Mr. Theriault was unrepresented by counsel but says he was assisted by his cellmate who makes a study of the law. He made an articulate presentation despite his limited ability to read and write. He seeks a jury trial, claiming he was manipulated into pleading guilty by his defence counsel. He also seeks a jury trial with respect to his conviction and two-month sentence for resisting arrest contrary to s. 129(1) of the Criminal Code on December 24, 1992. He says the purported arrest occurred in the course of a police investigation of a robbery in which he was not involved; he pleaded guilty and three related charges were dropped. That matter, which appears to be the focus of most of his complaints, was dealt with summarily and this court is without jurisdiction to hear the appeal. Any appeal would lie to the Supreme Court of Nova Scotia as summary conviction appeal court. The assault occurred July 12, 1993, the threatening on August 9, 1993, and Mr. Theriault was charged on September 24, 1993. On October 8, 1993, he elected trial in Provincial Court. On February 28, 1994, the day scheduled for his trial, he changed his plea to guilty before Judge Ross Archibald. At the sentencing a week later Chief Judge MacDonald accepted a joint recommendation of the Crown and defence and sentenced him to nine months on the first charge and three months consecutive on the second, to be served consecutively to a two year-sentence he was then serving. Mr. Theriault says the two-year sentence expired January 7, 1995. Mr. Theriault appears to have been under the impression that the judge before whom he entered his guilty plea should also have sentenced him. When no evidence is taken, as on a guilty plea, a judge is not seized with jurisdiction and pursuant to s. 669.1 of the Criminal Code it is quite proper for another judge to impose sentence. Mr. Theriault was also under the mistaken impression that there was a violation of his rights when a different Crown prosecutor appeared at the sentencing hearing. He questioned his lifetime prohibition from possessing any firearm, ammunition or explosive substance, but that is a requirement of s. 100 of the Code. After careful perusal of the appeal book prepared by the Crown on Mr. Theriault's behalf and additional materials he presented at his hearing I am satisfied that most of the matters Mr. Theriault has complained about are not before this court, and relate to the charge of resisting arrest. Moreover, I am not satisfied of the merits of any of his complaints. To successfully appeal a conviction following a guilty plea an appellant must show he did not appreciate the nature of the charge or that he did not intend to admit that he was guilty of the charge; or that upon the admitted facts he could not in law have been convicted of the offence charged with the result that there was a miscarriage of justice. See R. v. Savoury (1967), 47 C.R. 7 (N.S.S.C. in Banco); R. v. Sode (1974), 22 C.C.C. (2d) 329 (N.S.S.C.A.D.). Mr. Theriault, whose record of 46 convictions goes back to 1964, cannot assert with a modicum of credibility that he did not appreciate the nature of the charge or that he did not intend to admit his guilt. The Crown sheets Mr. Theriault submitted clearly show facts on which he could have been convicted. There was no miscarriage of justice. Rather than being manipulated by his lawyers, the correspondence Mr. Theriault has submitted shows that he was well advised and well served by capable counsel acting in his best interests. Given his record and the seriousness of the charges his plea bargain resulted in very lenient sentences. I would dismiss the appeal from conviction. I would grant leave to appeal the sentences but dismiss the appeal. Freeman, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A.