2012 NBCA 8, 2012 NBCA 8

COURT OF APPEAL OF NEW BRUNSWICK 4-11-CA CHRISTOPHER ROBERT FRIGAULT APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT CHRISTOPHER ROBERT FRIGAULT APPELANT - et – SA MAJESTÉ LA REINE INTIMÉE Frigault v. R., 2012 NBCA 8 Frigault c.

R., 2012 NBCA 8 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: December 22, 2010 Appel d’une décision de la Cour provinciale : Le 22 décembre 2010 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 333 Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 333 Appeal heard: November 10, 2011 Appel entendu : Le 10 novembre 2011 Judgment rendered February 2, 2012 Jugement rendu : Le 2 février 2012 Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg

Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at the hearing: For the appellant: Ben Reentovich For the respondent: Patrick Wilbur Avocats à l’audience : Pour l’appelant : Ben Reentovich Pour l’intimée : Patrick Wilbur THE COURT The application for leave to appeal sentence is allowed. The appeal is dismissed. LA COUR La demande en autorisation d’appel de la peine est accueillie. L’appel est rejeté. The judgment of the Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] This is an application for leave to appeal sentence. Mr. Frigault, who possesses an extensive criminal record, was charged with four offences under the Criminal Code : s. 348(1) ( b ), break, enter and theft; s. 252(1) , failing to remain at the scene of an accident; s. 249(1) , operating a motor vehicle in a manner dangerous to the public; and s. 733.1 , failure to comply with a probation order. Mr. Frigault pled guilty to all four counts and was sentenced to a total of four years in a federal penitentiary. Mr. Frigault appeals the sentence on two principal grounds.

He alleges the sentencing judge erred in law by: (1) failing to provide reasons as to why he imposed a harsher sentence than the one suggested by the Crown prosecutor; and (2) by imposing a “disproportionate” sentence. For the reasons that follow, I would grant the required leave but dismiss the appeal. II. Background [ 2 ] The events which led to these charges occurred during the early hours of December 21, 2010. Mr. Frigault’s actions are described by the Crown prosecutor in the transcript of the sentencing hearing. Mr. Frigault was released from the

Madawaska Regional Correctional Centre on December 4, 2010, at which time he returned to his home in Saint John. On the day preceding the offences, Mr. Frigault attended an appointment with his probation officer. After the appointment, he encountered a friend and purchased some drugs with funds he had received upon his release from jail and funds collected from individuals who owed him money. Mr. Frigault then went for a drive. According to the transcript, his recollection of events “gets a bit foggy”. Mr.

Frigault recalled driving on the highway, arriving at Foxfarm Road and pulling into the Torryburn Irving station. He exited the vehicle and threw a rock at the glass door a number of times to make a hole large enough for him to gain access to the store. Mr. Frigault took cigarettes from various locations in the store and eventually returned to his vehicle. Mr. Frigault left the station, driving at an excessive speed, lost control of his vehicle and hit a house and another vehicle. Mr.

Frigault left that location and, although he recalled seeing police vehicles with their lights and sirens on, continued to drive, “running from the police”, until he hit a curb and telephone pole. At that point he was arrested by the police. The Crown prosecutor related that, although this was all “pretty fuzzy” from Mr. Frigault’s point of view, it is all consistent with what the police had “pieced together”. [ 3 ] The police viewed a videotape from the Torryburn Irving, which showed a man getting out of his vehicle and leaving with cigarettes.

From the videotape, the police also obtained a description of the vehicle, which they radioed to other officers. Officers located in or close to the McDonald’s parking lot in the North End of Saint John picked up the description and observed a vehicle heading in their direction with the passenger side headlight out. The vehicle hit the curb. As one of the constables approached the vehicle, the driver took off at high speed, proceeding on the wrong side of the road onto Main St. and over the median, causing the vehicle to almost become airborne.

The vehicle continued eastbound, down Main St., exiting onto Hilyard St. next to a Tim Hortons. The vehicle then turned eastbound and proceeded past Brenan’s Funeral Home. The vehicle continued through the Wall St. interchange, headed past the Chateau de Champlain, then drove over the median, finally coming to a stop on an off-ramp, pointed in the wrong direction. When the police approached the vehicle, an officer noticed several packages of cigarettes on the passenger side floor. These cigarettes connected Mr. Frigault to the break-in at the Torryburn Irving.

The front and passenger sides of the vehicle were heavily damaged and three tires were blown out. [ 4 ] On the morning of December 21, 2010, Mr. Frigault appeared before a Provincial Court judge. Mr. Frigault refused representation by duty counsel and elected the jurisdiction of the Provincial Court. He then entered guilty pleas to all charges. [ 5 ] The Crown prosecutor entered Mr. Frigault’s criminal record and a probation order dated October 25, 2010, as exhibits. The facts of the case were related to the Court. Mr.

Frigault agreed with the facts as presented by the Crown prosecutor and the case was adjourned to the following day at 10:00 a.m. for sentencing, pending confirmation of whether the victims wished to prepare statements. Mr. Frigault was remanded into custody. [ 6 ] On December 22, 2010, Mr. Frigault appeared with duty counsel and, after an extremely lengthy exchange with the judge, was sentenced to the following:

(1) Count 1 − s. 348(1)( b ), break and enter and theft − three years in a federal penitentiary;

(2) Count 2 − s. 252(1), leaving the scene of an accident − four months consecutive;

(3) Count 3 − s. 249(1), dangerous driving − four months consecutive; and

(4) Count 4 − s. 733.1, breach of probation – four months consecutive. This resulted in a total sentence of four years in a federal penitentiary. III. Grounds of Appeal [ 7 ] In his written submission, Mr. Frigault relies upon the following two grounds of appeal:

(1) The sentencing judge erred in law by failing to provide any reasons why he imposed a sentence greater than that sought by the Crown.

(2) The sentence imposed is clearly unreasonable as it is disproportionate to the nature of the offence resulting in an inordinately longsentence and the significant increase in the sentences imposed constitutes a violation of the “jump principle”. IV. Standard of Review [8] The standard of appellate review in sentencing matters was recently explained by Drapeau C.J.N.B. in Long v.R., 2011 NBCA 94, 378 N.B.R. (2d) 307: The standard of review applicable to appeals against sentence is set out in R. v. R.K.J. (1998), (NB CA), 207 N.B.R.(2d) 24, [1998] N.B.J.

No. 483 (C.A.) (QL): It is the undoubted duty of this Court to review the fitness of any sentence imposed. That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law. All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227 [...], R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 [...], and R. v. MacDonnell, (SCC), [1997] 1 S.C.R. 305. [...] Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances. Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this Court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20 (C.A.) [...], and R. v.

Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d) 338 (C.A.).[...] In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents. As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations.

As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short. It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. In R. v.

LeBlanc, 2003 NBCA 75, 264 N.B.R. (2d) 341, the Court provided guidance to parties involved in sentence appeals and soughtto structure its analytical approach by articulating the following framework: [...] intervention on appeal against sentence is inappropriate unless at least one of the following questions is answered affirmatively: (1)Is the sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Isthe sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as theprinciples enunciated in sections 718.1 and 718.2 of the Criminal Code? In Steeves v. R., 2010 NBCA 57, 360 N.B.R. (2d) 88, the Court added the following to the discussion pertaining to that framework: [...] As a practical matter, those three questions serve as a useful reminder of the limited role an appellate court is called upon to play inconsidering the fitness of a sentence. The many examples of the application of that three-pronged approach include R. v.

Munn (P.J.N.)(2004), 272 N.B.R. (2d) 269, [2004] N.B.J. No. 250 (QL), 2004 NBCA 44 (Larlee, J.A. for the Court), R. v. Veysey (J.M.), [2006]N.B.J. No. 365 (QL), 2006 NBCA 55 (Larlee and Robertson, JJ.A. for the Court), R. v. Guay (D.A.) (2008), 337 N.B.R. (2d) 252,[2008] N.B.J. No. 384 (QL), 2008 NBCA 72 (Richard, J.A. for the Court), R. v. Taylor (J.D.), [2009] N.B.J. No. 101 (C.A.) (QL)(Quigg, J.A. for the Court) and R. v. Daye, 2010 NBCA 53 (Larlee J.A. for the Court).

No one quarrels with the proposition that, absent legislation providing otherwise, the appropriate degree and kind of punishment is in thediscretion of the sentencing judge. That discretion is explicitly recognized in s. 718.3(2) of the Criminal Code. Moreover, it is referencedin R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 (QL) as a principled basis for appellate deference: Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencingjudges for similar offenders and similar offences committed throughout Canada.

See, e.g., R. v. Knife (1982), (SKKB), 16 Sask.R. 40 (C.A.), at p. 43; R. v. Wood, [1979] O.J. No. 855, 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187.

But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges. [Citations omitted.] [paras. 2-4] In brief, appellate courts have a limited role when asked to consider the appropriateness of a sentence. Unless the sentencing judgecommits an error of law or principle, or the sentence is clearly unreasonable, deference is owed. V. Analysis A. Sufficiency of Reasons [9] Mr. Frigault contends the judge erred in law by failing to provide sufficient reasons.

The Supreme Court’smost recent pronouncement respecting sufficiency of reasons is found in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3: In R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, the issue was whether the trial judge's reasons had adequately detailed the path tothe verdict. Binnie J., writing for the Court, held that while the reasons "fell well short of the ideal", they were not so impaired that theCrown's right of appeal was impaired. He stated: "Reasons are sufficient if they are responsive to the case's live issues and the parties'key arguments.

Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue". In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the contextof the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (seeSheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connectionbetween the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdictis unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to theevidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensivelist of the key principles. [Citations omitted.] [paras. 34-35]

[10] In Hubbard v. R., 2009 NBCA 28, 360 N.B.R. (2d) 1, Bell J.A. observed: More recently, in R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), 2002 SCC 26, the Court again addresses the issue ofthe sufficiency of reasons. Binnie J., writing the judgment of the Court, states that "[t]he appellate court is not given the power tointervene simply because it thinks the trial court did a poor job of expressing itself" (para. 26). Binnie, J. further states that the duty togive reasons "should be given a functional and purposeful

interpretation" (para. 53) and failure of this duty does not provide a "[...] free-standing right of appeal and [...] entitlement to appellate intervention" (para. 53). Essentially, Sheppard holds that appellate courts shouldask whether the reasons respond to the case's issues, having regard to the evidence as a whole and the submissions of counsel. An appealbased upon insufficient reasons will only be allowed when the trial judge's reasons are so deficient that they foreclose meaningfulappellate review (see also, R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J.

No. 34 (QL), 2008 SCC 34, where Binnie J. concludes thatthe duty to give adequate reasons is founded upon the need for trial judges to justify and explain the result; to tell the losing party why heor she lost; to provide for informed consideration of the grounds of appeal; and to satisfy the public that justice has been done). In R. v. R.E.M., [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52 (QL), 2008 SCC 51, the court was required to consider the adequacy of reasonsof a trial judge in his assessment of the credibility of witnesses, 2004 BCSC 1679 , [2004] B.C.J. No. 2896.

McLachlin C.J.explains that credibility findings may involve factors that are difficult to verbalize. The Chief Justice goes on to state that an appellatecourt reviewing reasons for sufficiency should start from a deferential stance toward the trial judge's findings of fact. Next, the appellatecourt, proceeding with deference, must determine whether the reasons, considered with the evidentiary record, the submissions ofcounsel and the live issues at the trial, reveal the basis for the verdict reached (para. 67) (see also New Brunswick (Minister of Familyand Community Services) v.

T.L.M. (Litigation guardian of), [2009] N.B.J. No. 19 (QL), 2009 NBCA 8 regarding sufficiency ofreasons). [paras. 7-8] [11] Therefore, it is clear that appellate intervention should be avoided unless the judge’s reasons are deficient tothe point of foreclosing meaningful appellate review. At the sentencing hearing, counsel for Mr. Frigault suggested a sentence “closer totwo years”. After this, Mr. Frigault immediately engaged the Court in a lengthy discussion that encompasses approximately 13 pages ofthe transcript. Mr. Frigault and the judge discussed the difficulties Mr.

Frigault encounters when he is released from custody, thepossibility of taking a trade while incarcerated and what programs were available in federal institutions. The judge made statements suchas: THE COURT: Well you’re still young. You can still start fresh. You’re very pleasant, you’re polite, you’ve got – you got a lot of thingsgoing for you. […] […] Well I wish I had an answer to it Mr. Frigault, I really do.

I feel − I feel bad about this whole situation. […] Did you ever consider the possibility of taking a trade while you are in the institution? […] I − I’ve always heard that the federal system has different programs available for people – [Transcript – pp. 25-28]

[ 12 ] What makes this case atypical is that the judge engaged in a dialogue with Mr. Frigault for much of the sentencing hearing. Having said that, it is apparent that the judge was focused upon the sentencing principles of rehabilitation and specific deterrence by virtue of the very sentence imposed upon Mr. Frigault. The transcript of the sentencing hearing reveals the judge was sympathetic to Mr. Frigault’s circumstances and was attempting to arrive at a sentence which would not only deter Mr. Frigault from future breaches of the law, but would assist Mr. Frigault in achieving his goal of rehabilitation.

It is apparent the judge was alive to the principles of sentencing found at s. 718 of the Code . The judge stated: THE COURT: That’s 48 – that’s 48 months. You know, you could get out if you – if you applied maybe. I mean you could get out in eight months or so, you know. You know how it works but I’m making it a little longer and I’m hoping and I’d gladly write a letter to the institution to see if there’s – see if they would take a look at trying to come up with some kind of a plan for you so that when you come out, and you will come out, that there’ll be something in place.

Surely to God they – that’s part of the job of a parole officer, is to – is to have something in place for you when you get out, rather than cold turkey. […] […] For the operating a motor vehicle, care or control, and I know this is a frolic and – and I – but I’m looking at this from Mr. Frigault’s point of view and I think the – the length of this is something that might benefit him; I’m hoping it will anyway. But on the leaving the scene of the accident it’s four months consecutive, for dangerous driving it’s four months consecutive and for doing this while you were on probation it’s another four months.

So that equals – that equals the four years, and you know, if there’s anything at all that I can do, you send me a letter and you know if I can – if I can help you when – when you’re in there, I’ll gladly do that. I feel very bad about all of this, very bad. [Transcript – pp. 36-37] [ 13 ] Mr. Frigault further argued the judge erred by imposing a sentence greater than the one requested by the Crown prosecutor. By contrast, Crown counsel says that he did not request a sentence of three years, but rather “at least three years”. The Crown prosecutor’s recommendation may be found in the transcript: MR.

WILBUR: […] that being break and enter, one year on each. This is – and it’s been fairly steady since that time, unfortunately for everyone, including Mr. Frigault. With respect I think a global sentence of three years would be even – that would be the least we could do for Mr. Frigault. Thank you Your Honour. [Transcript – p. 22] [ 14 ] From this, we see a three-year sentence had not been recommended, as suggested by Mr. Frigault. The three years proposed by the Crown prosecutor relates to minimum sentence he believed should be imposed. In reviewing the dialogue between the judge and Mr.

Frigault, all principles have been met. The judge took rehabilitation, the chance of recidivism and deterrence (specific and general) into consideration. There is no error in law that would warrant appellate intervention in these circumstances. As such, I would reject this ground of appeal. B. Lack of reasonableness / Disproportionate sentence [ 15 ] Mr. Frigault received a total sentence of four years. He submits the sentence is unreasonably harsh, considering the gravity of the offences. He also contends the sentence imposed for the break and enter constitutes a violation of the “jump” principle.

His last sentence for two break and enters was one year each, consecutive. Mr. Frigault says that although he has a lengthy criminal record dating back to 1999, he has no previous driving-related convictions. Likewise, he has no previous breaches of probation. Mr. Frigault contends the significant increase in sentence for the break and enter as compared to previous sentences constitutes a violation of the jump principle. [ 16 ] Saunders J.A. discusses the “jump” or “step” principle in R. v. Bernard , 2011 NSCA 53 , [2011] N.S.J.

No. 301 (QL) : In certain circumstances it may be necessary for judges to consider the "jump" (or "step") effect in punishing for unlawful behaviour. This is intended to take into account the level of severity in penalties for previous offences when compared to the sentence about to be imposed. In other words, it is a recognition of the importance of comparing the relative degrees of punishment for past and present

offences. […] While the so-called "jump", "step" and "gap" factors are not explicitly codified in s. 718, their application has become part of the sentencing lexicon. These three factors may be deduced from what the Criminal Code terms the "fundamental principle" of sentencing in s. 718.1 , that is, that the sentence "must be proportionate to the gravity of the offence and the degree of culpability of the offender". I need not decide whether these concepts have become elevated to recognized sentencing principles or are simply labels used to explain logical and relevant features of sentencing.

Essentially, they are concepts or norms which may be applied where consecutive sentences are imposed so as to ensure that "the combined sentence should not be unduly long or harsh" ( s. 718.2 (c)). […] [paras. 33 and 36] [ 17 ] Clayton Ruby, in Sentencing (7 th ed), (Markham, Ont.: LexisNexis, 2008), sets out the reasoning behind the “jump effect” commencing at page 389: s. 8.79 One of the features often disclosed by an examination of a criminal record is the fact that the sentence imposed or to be imposed in the instant case is considerably longer than any previously imposed.

Even when there is a marked increase in the seriousness of the crime committed, there should not be too great a "jump" in the length of the sentence imposed . : “sentences for a repeat offender should increase gradually, rather than by large leaps”. This is really no more than the principle that if less will do, then more is superfluous, now reflected in

section 718 (

d) of the Criminal Code . Accordingly in Re Morand and Simpson , the Saskatchewan Court of Appeal noted, as one of the reasons for reducing a sentence from four years to three years, that the longest sentence previously imposed was two years. Sentences will also be reduced if they represent an excessive increase over previous sentences.

Thus, in Alfs , the Ontario Court of Appeal noted that the appellant had never received a custodial term before and for that, among other reasons, the court varied a four-year sentence for armed robbery to one of time served, being about ten months followed by one year's probation.

A principle has emerged: in Sloane , a jump from a non-custodial sentence to eight years' imprisonment was described as one which "offends in principle." s. 8.80 This principle does not justify increasing the sentence beyond that imposed previously; rather it is a rule that tends to limit such an increase - where otherwise appropriate and necessary - to one imposed in an incremental manner.

However, proportionality remains the fundamental principle of sentencing, and as a result the jump principle may “plateau” when an offender has a very long record. [Citations omitted.] [ 18 ] As indicated by Saunders J.A. in Bernard , in certain cases it may be necessary for judges to consider the jump principle when sentencing. This is not such a case. Mr. Frigault has a lengthy criminal record. Although his previous sentence was one year consecutive on each of two charges of break, enter and theft, this was Mr. Frigault’s fifth break and enter and he has been incarcerated previously. In Andrade v.

R. , 2010 NBCA 62 , 363 N.B.R. (2d) 159 , Robertson J.A. discussed the importance of an accused’s previous record: There is no doubt that the trial judge's sentencing decision was influenced by the length of the appellant's criminal record (24 prior convictions). Of course, a previous criminal record is critical to the matter of the offender's "character" and Parliament's sentencing objectives. It is through the offender's criminal record that the potential for rehabilitation, recidivism and future dangerousness may be assessed.

This explains why the law is often preoccupied with the nature or seriousness of the convictions and, in particular, previous convictions for the same offence. Inevitably, the sentencing court will resort to the penalty actually imposed as evidence of the seriousness of the offence. [para. 24] [ 19 ] If one were to view the sentence imposed for the breach of probation and the break and enter in isolation, one might question whether the sentencing judge disregarded the jump principle.

However, I am of the view the application of the jump principle is useful in the consideration of sentencing on single offences and is of less utility in cases where a judge is sentencing an accused with a lengthy criminal record on multiple convictions. In such cases, after considering the principles of sentencing set out in the Code , the judge’s focus is understandably on determining the appropriate global sentence. Although the judge did not specifically state why he was imposing the sentence he did, it is apparent from the exchange between Mr. Frigault and the judge that he fairly assessed Mr.

Frigault’s circumstances and appropriately considered the principles of sentencing. In considering the application of the “jump” principle to the case before us, one must look to the standard of review which instructs appeal courts to take a deferential approach on sentence appeals. In R. v.

LeBlanc , 2003 NBCA 75 , 264 N.B.R. (2d) 341 , Drapeau C.J.N.B. clearly stated that appeal courts should not intervene on sentence appeals unless: (1) the sentence is the result of an error in law, (2) the judge erred in principle in exercising his or her discretion, or (3) the sentence is clearly unreasonable having regard to s. 718 of the Code (para. 17). In this case, none of these three factors exists.

VI. Disposition [ 20 ] For these reasons, I would allow the application for leave to appeal, but dismiss the appeal. ____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _________________________________ J.C. MARC RICHARD, J.A. _________________________________ B. RICHARD BELL, J.A.