r v. R., 2012 NBCA 81

COURT OF APPEAL OF NEW BRUNSWICK 51-12-CA JASON NELSON McCAVOUR APPELLANT JASON NELSON McCAVOUR APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE McCavour v. R., 2012 NBCA 81 McCavour c.

R., 2012 NBCA 81 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Provincial Court: April 12, 2012 Appel d’une décision de la Cour provinciale : Le 12 avril 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 12, 2012 Appel entendu : Le 12 septembre 2012 Judgment rendered: September 12, 2012 Jugement rendu : Le 12 septembre 2012

Counsel at hearing: Jason Nelson McCavour appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Jason Nelson McCavour a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The application for leave to appeal sentence is dismissed with reasons to follow. LA COUR La demande en autorisation d’appel de la peine est rejetée, avec motifs à suivre. The following is the judgment delivered by THE COURT [ 1 ] The application for leave to appeal sentence is dismissed with reasons to follow. _____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _____________________________________ J.T. ROBERTSON, J.A. ______________________________________ BRADLEY V. GREEN, J.A.

JASON NELSON McCAVOUR APPELLANT JASON NELSON McCAVOUR APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE McCavour v. R., 2012 NBCA 81 McCavour c. R., 2012 NBCA 81 COURT OF APPEAL OF NEW BRUNSWICK 51-12-CA The Court’s reasons for judgment were delivered by DRAPEAU, C.J.N.B. I. Introduction [ 2 ] On April 12, 2012, the appellant pled guilty in Provincial Court to two charges of assault ( ss. 266 (

a) and (

b) of the Criminal Code )

CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Provincial Court: April 12, 2012 Appel d’une décision de la Cour provinciale : Le 12 avril 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: September 12, 2012 Appel entendu et jugement rendu : Le 12 septembre 2012 Reasons delivered: November 1, 2012 Motifs déposés : Le 1 novembre 2012 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: Jason Nelson McCavour appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Jason Nelson McCavour a comparu en personne.

Pour l’intimée : Cameron H. Gunn and two charges of breaching a release- related undertaking, the first to the police ( s. 145(5.1) (a) ), the second to a judge ( s. 145(3) (b) ). The appellant was fined for each assault and sentenced to 30 days in jail (to be served intermittently) and probation for 6 months for the first breach of undertaking. The judge added a consecutive 10-day jail term (to be served intermittently) for the second breach of undertaking. The appellant, who is self- represented, seeks leave to appeal, arguing the sentencing judge should have favoured him with conditional discharges.

Following the hearing, the Court dismissed the application and indicated reasons would follow. Here are those reasons. II. Background [ 3 ] In the early hours of April 30, 2011, the appellant, his girlfriend, Melissa Gauthier, and a group of their friends were drinking together. Sometime after leaving a downtown Fredericton bar, the appellant, who was highly intoxicated, attended at a friend’s house where he passed out. Ms. Gauthier and three of her friends migrated to an apartment on Union Street where they continued to drink together. [ 4 ] In the meantime, the appellant returned to his own residence to

THE COURT The sentencing judge correctly identified and applied the relevant principles and her discretion-infused decision to reject the appellant’s application for conditional discharges must stand. LA COUR La juge qui a prononcé la peine a bien cerné et appliqué correctement les principes pertinents et il n’y a pas lieu de modifier sa décision dans laquelle elle a exercé son pouvoir discrétionnaire de rejeter la demande d’absolutions sous conditions présentée par l’appelant. sleep. When he woke sometime later, he became quite upset upon realizing Ms. Gauthier was absent.

He decided to “track her down” and eventually wound up at the apartment on Union Street, wearing only his underwear. Once inside, the appellant accused Ms. Gauthier of sleeping with Adam McLaughlin, one of the men present. [ 5 ] The appellant then proceeded to assault Mr. McLaughlin, who retreated to the bathroom. At that point, the appellant and Ms. Gauthier engaged in a shouting match. Enraged by some of her comments, the appellant punched Ms. Gauthier in the head and mouth areas, causing superficial injuries, including a swollen lip. Once the assaults ceased, Ms.

Gauthier managed to call 9-1-1 and, shortly thereafter, the appellant was arrested and taken into custody. [ 6 ] At approximately 7:30 a.m., the appellant was released by the police on his formal undertaking: (1) to avoid contact with Ms. Gauthier and Mr. McLaughlin; and (2) to refrain from attending at the apartment on Union Street. However, in the early afternoon, Ms. Gauthier called the police and reported the appellant had contacted her by phone several times that morning and that they had exchanged text messages for about an hour. The appellant had also parked outside the residence where Ms.

Gauthier was staying and shouted at a friend on the patio to relay a message on his behalf. [ 7 ] Following this breach of the undertaking given to secure his release from police custody, the appellant appeared in court to answer for that offence and the assault charges. The presiding judge released him on an undertaking that he report to the police by telephone every Friday. The appellant subsequently missed one of those court-ordered call-ins, which gave rise to the second charge of breach of an undertaking. III. Analysis A.

The Standard of Review [ 8 ] This court has routinely emphasized the considerable deference owed to the decisions of sentencing judges. After all, in most instances, those decisions are no more than judgment calls. In R. v. LeBlanc, 2003 NBCA 75 , 264 N.B.R. (2d) 341 , the Court articulated the following general approach to sentence appeals: […] 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) Is the sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as the principles enunciated in sections 718.1 and 718.2 of the Criminal Code ? [para. 17] As well, see Steeves v. R., 2010 NBCA 57 , 360 N.B.R. (2d) 88 , and more recently, Nagle v. R. , 2012 NBCA 68 , [2012] N.B.J. No. 271 (QL) , per Green J.A., for a comprehensive review of the principles governing appellate review of sentences. B. The appropriateness of conditional discharges in the case at hand [ 9 ] Section 730(1) of the Criminal Code reads as follows:

Absolute and Conditional discharges 730.

(1) Where an accused, other than anorganization, pleads guilty to or is foundguilty of an offence, other than an offence forwhich a minimum punishment is prescribedby law or an offence punishable byimprisonment for fourteen years or for life,the court before which the accused appearsmay, if it considers it to be in the bestinterests of the accused and not contrary tothe public interest, instead of convicting theaccused, by order direct that the accused bedischarged absolutely or on the conditionsprescribed in a probation order made undersubsection 731(2). Absolutions inconditionnelles et sousconditions 730.

(1) Le tribunal devant lequel comparaîtl’accusé, autre qu’une organisation, qui plaidecoupable ou est reconnu coupable d’uneinfraction pour laquelle la loi ne prescrit pasde peine minimale ou qui n’est pas punissabled’un emprisonnement de quatorze ans ou del’emprisonnement à perpétuité peut, s’ilconsidère qu’il y va de l’intérêt véritable del’accusé sans nuire à l’intérêt public, au lieude le condamner, prescrire par ordonnancequ’il soit absous inconditionnellement ou auxconditions prévues dans l’ordonnance rendueaux termes du paragraphe 731(2). [10] In R. v.

Gallon, 2006 NBCA 31, 297 N.B.R. (2d) 317, Deschênes J.A., who delivered thejudgment of the Court, provides a reminder of the considerations that inform the assessment of a discharge’s appropriateness: The decision that an accused ought not be convicted but that he or she ought to be discharged upon conditions is a discretionary one.However, that type of disposition, one of the most lenient sentences available under the Code, cannot be made unless it is: (

a) in the bestinterest of the accused, and (

b) not contrary to the public interest. In R. v. Elsharawy (M.)(1997), (NL CA), 156 Nfld. & P.E.I.R. 297 (Nfld. C.A.), at para. 3, the Court commented onthe prerequisites to a valid discharge: For the Court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the Court must consider that that type ofdisposition is: (

i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that theaccused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence orrehabilitation and that a criminal conviction may have significant adverse repercussions.

The second condition involves a considerationof the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, publicattitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Waters, (1990), (SK KB), 54 C.C.C. (3d) 40 (Sask.

Q.B.). [paras.13-14] [11] In her reasons for dismissing the application for conditional discharges, the sentencing judgeconsidered both the best interests of the accused and the public interest: So, I’ll deal with the issue of the conditional discharge. Obviously, […] the assaults [were] minor. It doesn’t mean they’re minor ofimpact to the people involved but when we look at a range of assaults. So certainly any sentence that would be given would be –wouldn’t be a long sentence.

And when I look at a conditional or absolute discharge the two things that the Court looks at is if it’s inyour best interest and most likely it would be. Certainly, you’re a professional and this would certainly be helpful for you to not have todeal with your professional association, obviously. You also have some serious health issues which I've taken note of when I read yourPresentence Report. The next thing I look at, if it is in your best interest, is I look at your background. You don’t have a prior record, which is good, althoughin this case you do have […] multiple offences.

You had two, and then you had one, and then a while later you had another one. But youdon’t have any prior record. And then I look at if this would be contrary to the public interest. And when I look at what’s contrary to the public interest, I have to lookat issues such as denunciation and deterrence, and certainly this was – from that point of view, an assault which occurred on a girlfriendwhich is always a serious issue.

And had you committed the assault and then maybe walked away from it maybe there might be […]adifferent situation, but then you breached the undertaking to the police and the – the next breach of the undertaking is – I don’t considerit serious – although it is a breach of a Court undertaking. It’s one that – that wasn’t – didn’t put the public or a person at risk and it mayhave been through inadvertence, but certainly the breach of the police undertaking means that you went out and disobeyed. You were

arrested and they could have held you in custody, but they didn’t and you were – you were set free, and as soon as you were set free you were back in communication. And so overall when I consider this, […] looking at all the factors, it is contrary to the public interest to grant you a discharge. I’m not going to grant you a discharge or a conditional discharge in these matters. [ 12 ] When addressing the public interest component of the statutory test, the sentencing judge correctly emphasized the need for denunciation and deterrence.

She also outlined factors relevant to the exercise of her discretion in fashioning a fit sentence, such as the seriousness with which the law deals with assaults on women and the importance of abiding by release undertakings to the police and the court. The reasons of the sentencing judge are in harmony with the applicable principles of sentencing and reveal proper consideration was given to the factors that go into determining whether a discharge is appropriate. [ 13 ] None of the three questions posed in R v. LeBlanc , at paragraph 17, can be answered affirmatively.

It follows this Court is not at liberty to interfere with the sentencing judge’s refusal to grant conditional discharges, a decision that, in our respectful view, reflects a principled exercise of discretion. IV. Conclusion [ 14 ] The sentencing judge correctly identified and applied the relevant principles and her discretion- infused decision to reject the application for conditional discharges is unimpeachable. As indicated, the applicable standard of review forecloses intervention by this Court.

It is for those reasons that I joined my colleagues in dismissing the appellant’s application for leave to appeal sentence. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _____________________________________ J.T. ROBERTSON, J.A. ______________________________________ BRADLEY V. GREEN, J.A.