HER MAJESTY THE QUEEN (Respondent) - v. -, 1999 ABCA 190

R. v. Stephen, 1999 ABCA 190 Date: 19990615 Docket: 9703-0238A IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE RUSSELL THE HONOURABLE MADAM JUSTICE BIELBY THE HONOURABLE MR. JUSTICE SULLIVAN ____________________________________________________ BETWEEN: HER MAJESTY THE QUEEN (Respondent) - and - BRUCE ELLIOT STEPHEN Accused (Appellant) APPEAL FROM THE SENTENCE OF THE HONOURABLE MR. JUSTICE RITTER DATED THE 17 th OF APRIL, 1997 ____________________________________________________ REASONS FOR JUDGMENT RESERVED

____________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE RUSSELL CONCURRED IN BY THE HONOURABLE MADAM JUSTICE BIELBY CONCURRED IN BY THE HONOURABLE MR. JUSTICE SULLIVAN COUNSEL : M.M. Carminati For the Appellant J. Watson, Q.C. For the Respondent ____________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE RUSSELL ____________________________________________________ 1 This is an appeal from a sentence of life imprisonment without eligibility for parole for 15 years.

The sentence was imposed after the appellant was convicted of second degree murder. Three grounds of appeal were raised before us regarding the length of the period of parole ineligibility imposed by the trial judge. In considering those grounds, I am mindful of the standard of review that applies in appeals of this nature. The Supreme Court of Canada has said that appellate courts cannot interfere with a sentence unless the sentencing judge made an error in principle, failed to consider a relevant factor, over-emphasized a relevant factor, or imposed a sentence which was demonstrably unfit: R. v.

McDonnell , 1997 CanLII 389 (SCC) , [1997] 1 S.C.R. 948; R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227; and R. v. C.A.M. , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500. 2 The first argument raised was that the sentencing judge’s comments indicated that he had pre-judged the matter of sentence and placed the onus on the defence to prove that the offence, whether murder or manslaughter, was not “an upper level sentencing matter”. I am not persuaded that there was an error in principle in this regard.

Although the statements preceded the parties’ submissions as to sentence, they were made after the judge had heard all the evidence and in light of the appellant’s admission that he had caused the victim’s death. In my view, the sentencing judge’s remarks were aimed at giving defence counsel fair warning of his concerns regarding the seriousness of the appellant’s actions in bringing about the victim’s death, whether that conduct amounted to second degree murder or manslaughter.

Accordingly, I find no reviewable error here. 3 The second ground advanced was that the sentencing judge failed to give effect to s.719(3) of the Criminal Code . That provision says that in determining the sentence to be imposed, the court may take into account any time spent in custody as a result of the offence. The appellant spent one year in pre-trial custody at a remand facility and claims that the sentencing judge should have given him some credit for this time when setting the period of parole ineligibility.

4 Generally, credit is given for pre-trial custody and the amount of time credited is a matter of discretion for the sentencing judge: R. v. Tallman (1989), 1989 ABCA 47 (CanLII) , 94 A.R. 251 (C.A.). However, in the case of life sentences, s. 746(

a) of the Code applies. It provides that for the purposes of parole proceedings for those sentenced to life imprisonment, the calculation of time served shall include time spent in custody prior to sentence. In other words, the parole board must give the appellant credit for his pre-trial custody in determining when the parole ineligibility period will expire. 5 Moreover, I note that the Code mandates a life sentence for second degree murder. The sole issue for the discretion of the sentencing judge is the period of parole ineligibility, a matter that is guided by the application of the criteria set forth in s.745.4. There is nothing in that

section which speaks of taking pre-trial custody into account. And, in some cases, it would clearly be inappropriate to do so since any time credited could not cause the sentence to fall below the 10 year minimum prescribed under s.745.4. 6 Accordingly, I find that it was not an error for the sentencing judge to fail to consider the appellant’s pre-trial custody in determining the period of parole ineligibility. In so finding, I am persuaded by the reasons set forth by the Nova Scotia Court of Appeal in R. v. Tsyganov 1998 NSCA 227 (CanLII) , [1998] N.S.J. No. 495, online: QL (NSJ).

I hasten to add that my conclusion on this issue does not mean that it would be an error for judges to take pre-trial custody into account in such circumstances. However, failing to do so does not amount to an error in principle. Hence, this ground of appeal must also fail. 7 The final ground raised was that the sentencing judge placed too much emphasis on the appellant’s criminal record. In particular, exception was taken to the sentencing judge’s finding that the circumstances of this case justified a sentence similar to the one imposed in R. v.

Randhawa (1990), 1990 ABCA 90 (CanLII) , 104 A.R. 304 (C.A.). 8 I see no indication that too much weight was placed on the appellant’s record. The sentencing judge correctly pointed to the appellant’s prior conviction for sexual assault, an offence involving violence. In any event, the increase in the length of the period of parole ineligibility in this case is supported by the many aggravating factors surrounding the offence.

Those factors include the fact that, at the time of the offence, the appellant was in violation of a judicial interim release provision stating that he was not to have contact with the victim. Moreover, this was a case of violence in a domestic setting and there was a proven history of serious violence perpetrated by the appellant against the deceased. Finally, the appellant’s conduct during the sentencing hearing in which he threatened the husband of the deceased victim, expressly displayed his failure to accept responsibility for his actions.

In such circumstances, the sentence cannot be said to be demonstrably unfit. 9 In conclusion, I am of the view that no reviewable error has been shown. Accordingly, I would dismiss the appeal. APPEAL HEARD on April 19, 1999 REASONS FILED at Edmonton, Alberta, this 15 th day of June, 1999 ______________________________ Russell, J.A.

I concur: ______________________________ Bielby, J. I concur: ______________________________ Sullivan, J.