R v Langille, 2017 MBCA 25

Citation: R v Langille, 2017 MBCA 25 Date: 20170217 Docket: AR16-30-08702 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : ) B. M. Sychuk ) for the Appellant HER MAJESTY THE QUEEN ) ) S. L.

Bracken ) for the Respondent Appellant ) ) Written joint submission filed: - and - ) February 8, 2017 ) MICHAEL WILLIAM LANGILLE ) Appeal under Manitoba ) Criminal Appeal Rule 45 ) and Civil Rule 38 (Accused) Respondent ) ) Judgment delivered: ) February 17, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). PER CURIAM [ 1 ] This matter proceeded as a consent appeal to correct a sentence that was imposed but was not legally available. Leave to extend the time to file the notice for leave to appeal and to appeal was granted on December 12, 2016, following which the Crown applied for leave to appeal and appealed the sentence. [ 2 ] Briefly, the accused pled guilty to two counts of sexual assault under

section 271 of the Criminal Code , and the Crown stayed proceedings on two counts of failing to comply with a probation order. The plea and jointly recommended sentence were presented by the Crown and defence as being the result of a “true plea bargain”.

In accordance with that recommendation, the sentencing judge imposed the following sentences: - on the first count of sexual assault, two years’ incarceration less eight months’ time in custody, with a balance going forward of one year and four months, to be followed by three years’ supervised probation, a mandatory firearms and weapons prohibition for ten years and a primary mandatory DNA order; and - on the second count of sexual assault, three years’ incarceration concurrent less eight months’ time in custody, with a balance going forward of two years and four months. [ 3 ] The parties are now in agreement that, as the custodial sentence imposed is for two years and four months, the probation order was made in error.

This is as a result of the application of section 731(1) of the Criminal Code , which states as follows: 731(1) Making of probation orders – Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

. . . (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. [ 4 ] As can be seen from this provision, a probation order is not available if a period of incarceration exceeding two years is imposed. [ 5 ] The parties have agreed, as does the Court, that the Crown’s appeal should be allowed, and the sentence should be amended to delete the probation order. [ 6 ] Accordingly, leave to appeal is granted and the appeal is allowed, to the extent that the sentence is varied to delete the probation order.

All other aspects of the sentence are confirmed and remain the same. JA JA JA