Canada Case Law

R. v. McCook

Court

Supreme Court of British Columbia

The Crown failed to prove beyond a reasonable doubt that the killing was the culmination of an escalating pattern of intimate partner violence; the offence is manslaughter by reckless discharge of a firearm placed in the middle portion of the manslaughter range given extreme voluntary intoxication, absence of planning or deliberate targeting, and significant Indigenous Sentencing factors; after a modest downward adjustment to give effect to a structured community reintegration plan the appropriate global sentence is six years and nine months imprisonment with enhanced pre-sentence credit (1.5…

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• Manslaughter
• Firearm offences
• Intoxication
• Gardiner hearing
• Gladue factors
• Pre-sentence custody credit

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R. v. Majedi

Court

Supreme Court of British Columbia

At a Gardiner hearing in sentencing, the court made limited factual findings on coercion and drug use, but deferred any final legal ruling on duress.

• Duress/coercion
• Gardiner hearing
• Credibility assessment
• Drug trafficking
• Pregnancy and addiction in sentencing
• Gardiner-hearing

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R. v. D.B.

Court

Court of Appeal for Ontario

The trial judge committed errors in principle by failing to meaningfully consider the collateral consequences of incarceration on the appellant's family and by relying on unproven social media allegations without affording procedural protections; those errors materially affected the sentence and justify substituting the four-year sentence with a three-year term accounting for collateral consequences and procedural fairness.

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• Collateral consequences
• Denunciation and deterrence
• Gardiner hearing
• Youthful offender
• Publication ban

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R. v. Burden

Court

Court of Appeal for Ontario

The Court held the guilty plea was informed and voluntary and the five-year sentence was fit. Statutorily a forfeiture order and a fine in lieu are disjunctive; where forfeiture is impracticable, a fine in lieu may be imposed. Because the trial judge's findings supported that forfeiture would be impracticable and part of the proceeds had been returned to victims, the proper remedy is to set aside the forfeiture order, retain a fine in lieu of forfeiture but reduce it from $1,208,000 to $985,269.94 and direct that restitution takes priority and reduce the fine by amounts paid pursuant to the r…

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• Fraud
• Forfeiture
• Fine in lieu of forfeiture
• Restitution
• Guilty plea
• Gardiner hearing

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R. v. Revolus

Court

Court of Appeal for Ontario

The appeal is dismissed because, even assuming the sentencing judge erred about the availability of a conditional sentence to be served in Quebec, that error did not affect the appropriate sentence; given the appellant's central role, coercion, facilitation of a handgun, the devastating victim impact and the need for general deterrence and denunciation, a conditional sentence would have been inappropriate and the 18 month custodial sentence with two years probation is justified.

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• Conditional sentence
• General deterrence
• Parity in sentencing
• Gardiner hearing
• Jurisdiction to serve sentence

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R. v. Sithravel

Court

Court of Appeal for Ontario

The sentencing judge erred in principle by treating the appellant as the 'mastermind' when that fact was not admitted and was not proven in a Gardiner hearing; that error affected the sentence and warranted reduction to eight years and three months; the sentencing judge did not err in using the appellant's absconding to diminish mitigation and to emphasize specific deterrence.

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• Absconding
• Parity principle
• Aggravating factors
• Gardiner hearing
• Guilty plea admissions
• Specific deterrence

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R. v. Cargioli

Court

Court of Appeal for Ontario

Although the Court of Appeal could impose sentence under s.686(3)(b), the anticipated contested evidentiary nature of the sentencing (victim impact evidence, disputed facts and likely Gardiner hearing), together with the suitability of the trial court to receive lengthy contested proceedings, made remittal to the trial court the appropriate course; accordingly the matter was remitted for sentencing on the substituted conviction of second degree murder.

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• Homicide
• Second degree murder
• Sentencing forum
• Parole ineligibility
• Remittal to trial court
• Gardiner hearing

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R. v. Charpentier

Court

Supreme Court of British Columbia

The court sentenced Owen Charpentier to 6.5 years for manslaughter after finding he aimed and fired a gun at Keith Baldwin, with some mitigation but no FASD finding.

• Manslaughter
• Gardiner hearing
• Sentencing principles
• Self-defence
• Gladue factors
• Fetal alcohol spectrum disorder

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R. v. S.D.

Court

Supreme Court of British Columbia

Gardiner hearing after a guilty plea to sexual assault. The court was not persuaded beyond a reasonable doubt that penile-vaginal penetration occurred, and found only non-consensual touching while the complainant slept.

• Consent while asleep
• Credibility assessment
• Burden of proof
• Gardiner hearing
• W.(d.) direction
• Delay and corroboration

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R. v. S.D.

Court

Supreme Court of British Columbia

The court granted a s. 276 application in a sexual assault sentencing-Gardiner hearing, admitting limited relationship evidence to assess the accused's state of mind and moral culpability.

• Section 276 admissibility
• Sexual history evidence
• Mistake of law at sentencing
• Moral culpability
• Gardiner hearing
• Section-276-admissibility

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