R. v. Mitchell, 2017 NLCA 15

Darla Catherine Mitchell (applicant/intended appellant) v. Her Majesty the Queen in Right of Canada (intended respondent) (17/05) Indexed As: R. v. Mitchell 2017 NLCA 15 1 C.A.N.L.R. 527 Court of Appeal of Newfoundland and Labrador Welsh J.A. February 21, 2017

Summary: Ms. Mitchell applied for leave to appeal against the sentence imposed upon her conviction for trafficking in oxycodone contrary to

section 5 of the Controlled Drugs and Substances Act . Held: Application for leave to appeal against sentence granted, dates set. Welsh J.A.: Leave to appeal was required under section 675(1) (

b) of the Criminal Code because this was an appeal as to sentence only. The test to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit”. The appeal cannot be construed as having no arguable basis or sufficient merit. The appeal concerns consideration of the circumstances of the offender and the appropriate range of sentence for the offence. Leave to appeal was granted. Cases cited: R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 Counsel: Donald A. MacBeath Q.C., for the applicant/intended appellant; Elaine Reid, for the intended respondent.

This application was heard and the disposition was rendered orally on February 21, 2017 by Welsh J.A. The following Memorandum of Disposition was filed on February 21, 2017 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] At the hearing, I granted Darla Mitchell’s application for leave to appeal against the sentence imposed upon her conviction for trafficking in oxycodone contrary to

section 5 of the Controlled Drugs and Substances Act . [ 2 ] Leave to appeal was required because this is an appeal as to sentence only ( section 675(1) (

b) of the Criminal Code ). The test to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” ( R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 , at paragraph 7 ).

[ 3 ] Ms. Mitchell’s submissions are directed to the application of the appropriate range of sentence and her particular circumstances. Among other things, she seeks to have this Court reconsider the range of sentence in limited circumstances to include a suspended sentence with lengthy periods of probation. Further, she submits, the sentencing judge erred in applying a range of sentence different from that which has been endorsed by this Court. [ 4 ] In the circumstances, I was satisfied that the appeal cannot be construed as having no arguable basis or sufficient merit, and granted leave to appeal. [ 5 ] Ms.

Mitchell requested that the appeal be heard at the earliest opportunity, recognizing the constraints faced by the Crown. For the purpose of accommodating this request, Crown counsel agreed to make every effort to file her factum no later than March 10, 2017, on the understanding that the hearing would be set for March 16, 2017 at 10:00 a.m. If it is not possible to meet the March 10 th deadline, a tentative hearing date of March 23, 2017 was set. [ 6 ] To summarize, leave to appeal was granted and the hearing of the appeal was set for March 16, 2017 at 10:00 a.m. Application allowed .