Canada Case Law

Mood v. R.

Court

Supreme Court of Nova Scotia

One conviction under s.264.1(1)(b) on the first Information was reversed and acquitted due to complete absence of supporting evidence; imposition of probation alongside a custodial term exceeding two years on that occasion was illegal and removed; although the trial judge erred by adopting a global 'hard-capped' sentence rather than following the Adams sequential methodology, the appellate court determined those errors did not produce an improper calculation of imprisonment and therefore upheld a custodial sentence of 1200 days and ancillary orders, leaving remand credit undisturbed.

Source excerpt

• Uttering threats
• Criminal harassment
• Probation
• Totality principle
• Concurrent and consecutive sentences
• Remand credit

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R. v. Gerrard

Court

Nova Scotia Court of Appeal

The Court held the trial judge did not misapply R. v. W.(D.) nor err in her credibility findings; however the trial judge imposed an illegal sentence (custody plus probation contrary to applicable law) and was functus officio when she attempted to amend it, and the Court therefore substituted a lawful global custodial sentence of 30 months and dismissed the appeal from conviction while allowing the sentence appeal to the extent of substituting sentence.

Source excerpt

• W.(d.) credibility assessment
• Burden of proof
• Functus officio
• Illegal sentence
• Probation following custody
• Use of firearms in domestic offences

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R. v. Kuebler

Court

British Columbia Court of Appeal

Crown appeal from sentence in a criminal harassment case. The Court held the conditional sentence was illegal, refused fresh evidence, and substituted time served with increased probation.

• Criminal harassment
• Conditional sentence order
• Illegal sentence
• Fresh evidence
• Probation
• Credit for time served

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R. v. Coons

Court

British Columbia Court of Appeal

The British Columbia Court of Appeal upheld a seven-year global sentence for violent drug-related offences, but varied individual counts to match statutory limits and mandatory consecutiveness.

• Sentencing
• Totality principle
• Consecutive sentences
• Statutory maxima
• Parity
• Illegal sentence

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R. v. Mohamed

Court

Court of Appeal for Ontario

The court held that the sentencing judge committed an error of law by imposing a conditional sentence on the cocaine-for-trafficking count (an indictable offence punishable by life), but that error did not impact the overall global sentence; accordingly the court corrected the illegality by reallocating presentence custody to specific counts to render the sentence legal while leaving the global length and ancillary orders unchanged, upholding deference to the sentencing judge's exercise of discretion and finding the global sentence not demonstrably unfit.

Source excerpt

• Conditional sentence order
• Presentence custody credit
• Possession for the purpose of trafficking
• Denunciation and deterrence
• Rehabilitation
• Demonstrably unfit sentence

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R. v. Forsberg

Court

British Columbia Court of Appeal

The Court of Appeal for British Columbia set aside a probation order because the operative custodial sentence, after credit, exceeded two years under s. 731 of the Criminal Code.

• Probation order
• Section 731 criminal code
• Pre-sentence custody credit
• Illegal sentence
• Controlled drugs and substances act offences
• Probation-order

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R. v. Shaw

Court

British Columbia Court of Appeal

The Court of Appeal granted leave, found the conditional sentence illegal, and varied the sentence to one day in custody plus credit and 18 months' probation.

• Conditional sentence availability
• Drug trafficking sentencing
• Illegal sentence
• S. 742.1 criminal code
• Conditional-sentence-orders
• Drug-trafficking-sentencing

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R. v. Kirkpatrick

Court

British Columbia Court of Appeal

The Court of Appeal allowed the Crown’s sentence appeal in part, holding the conditional sentence orders were illegal and substituting lawful terms with probation.

• Illegal sentence
• Consecutive and concurrent sentences
• Credit for pre-sentence custody
• Probation
• Fresh evidence
• Extension of time

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R. v. Okash

Court

Court of Appeal for Ontario

The appeal was allowed because the sentencing judge imposed an illegal sentence by granting excessive pre-sentence custody credit beyond the 1.5:1 statutorily permitted maximum; after correcting the error to apply 1.5:1 credit the Court exercised its discretion to permanently stay execution of the short remaining portion of the sentence because the error was obvious at sentencing, the Crown did not point it out, there was delay in transcript preparation, the respondent had pleaded guilty and served the imposed sentence, and sentencing objectives of denunciation and deterrence would be met wit…

Source excerpt

• Mandatory minimum sentence
• Pre-sentence custody credit
• Illegal sentence
• Stay of execution

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R. v. Fergusson

Court

British Columbia Court of Appeal

Crown appeal to correct an illegal sentence for cocaine trafficking; the conditional sentence was unavailable, so the court varied the order to a suspended sentence and 18 months’ probation.

• Conditional sentence availability
• Illegal sentence
• Probation
• Maximum penalty life imprisonment
• Trafficking cocaine
• Sentencing

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