R. v. Anderson, 2012 NLCA 69

Date: 20120925 Docket: 11/57 Citation: R. v. Anderson , 2012 NLCA 69 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPLICANT AND : FREDERICK ANDERSON RESPONDENT Coram: Green C.J.N.L., Welsh and Barry JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Happy Valley-Goose Bay, NL Application Heard: September 25, 2012 Decision Rendered: September 25, 2012 (Orally) Written Reasons Filed: November 7, 2012 Reasons for Decision by Welsh J.A. Concurred in by Green C.J.N.L. and Barry J.A. Counsel for the Appellant: Sheldon Steeves Counsel for the Respondent: Derek Hogan

DECISION Welsh J.A.: [1] Frederick Anderson was convicted of driving while impaired. The Crown filed a notice of appeal against the sentence that wasimposed. In response, Mr. Anderson brought an application to strike out the notice of appeal. The issue raised by the application iswhether the notice of appeal, which was filed after the judge made determinations on Charter issues related to sentencing, but beforesentence was passed, was premature and, if so, whether the defect could be cured. [2] At the hearing, the application to strike the notice of appeal was dismissed.

The Crown was given leave to amend the noticeof appeal. Following are the reasons for that decision. BACKGROUND [3] Frederick Anderson was convicted of driving while having a blood alcohol content in excess of .08 contrary to section253(1)(

b) of the Criminal Code. He was sentenced to ninety days imprisonment, to be served intermittently, followed by two yearsprobation. The trial judge also ordered a five year driving prohibition. [4] For purposes of sentencing, the Crown gave Mr. Anderson notice of intention to seek a greater punishment by reason of fourprevious convictions he had for the same offence (section 727(1) of the Criminal Code).

For that number of convictions, section 255(1)(a)(iii) of the Code provides for a minimum sentence; that is, not less than 120 days imprisonment. [5] Prior to imposing sentence, the trial judge determined that the combination of the above provisions contravened sections 7 and15(1) of the Canadian Charter of Rights and Freedoms because the mandatory minimum sentence deprives an aboriginal person of thebenefits of

section 718.2(

e) of the Criminal Code, which directs the court to give “particular attention to the circumstances of aboriginaloffenders”. [6] Pending the hearing at which sentence was imposed, the Crown filed a notice of appeal against the trial judge’s determinationsunder the Charter. Mr. Anderson was sentenced to a term of imprisonment that was less than the minimum punishment prescribed insection 727 of the Criminal Code. The Crown did not file an amended or new notice of appeal after the sentence was imposed. [7] In response, Mr.

Anderson filed an application to strike the notice of appeal on the basis that it is an interlocutory appeal, and,as such, is not permitted under the Code. ANALYSIS [8] At the hearing in this Court, counsel for the Crown explained that the notice of appeal was filed prior to imposition of thesentence because the Crown fully intended to appeal against the trial judge’s determinations regarding the Charter issues. Counsel saidthat the intention was to alert Mr. Anderson at the earliest opportunity. However, such filing was premature.

The notice of appealchallenging the Charter determinations should have been filed after sentence had been imposed. This would have foreclosed theprocedural issue that resulted from early filing of the notice. [9] Nonetheless, counsel for Mr. Anderson conceded that there is merit to the appeal, that Mr. Anderson was aware that theCrown intended to appeal the decision, and that he was not prejudiced by the manner in which the Crown proceeded. In the result,counsel did not oppose leave to amend the notice of appeal.

Leave was, accordingly, granted. [10] An additional issue that arose is whether the Crown required leave to appeal against sentence. Where the charge is drivingwhile impaired under

section 253 of the Criminal Code,

section 255 authorizes proceedings by way of either indictment or

summaryconviction. In this case, the Crown proceeded by way of

summary conviction. As a result, the appeal is brought under

section 830 ofthe Criminal Code, which provides:

(1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment, verdict ofacquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order ordetermination of a

summary conviction court on the ground that (

a) it is erroneous in point of law; (

b) it is in excess of jurisdiction; or (

c) it constitutes a refusal or failure to exercise jurisdiction. [11] Jurisdiction to appeal directly to this Court pursuant to this provision is discussed in R. v. Lambe (1996), (NL CA), 144 Nfld. & P.E.I.R. 277 (NLCA), at paragraphs 6 and 7. It is clear from Lambe that an appeal against sentence may bebrought under this section: [9] … While I find the absence of a reference to sentence somewhat puzzling, the plain meaning of the words used in s. 830(1) arebroad enough to include a determination of sentence and I see no reason to exclude appeals of sentence under s. 830 provided, of course,the appeal is based on one of the enunciated grounds. … (I note, in passing, that this

interpretation of

section 830 has not been adopted in every province. In R. v. Bevis, 2000 NSCA 125, 188N.S.R. (2d) 163, the Court concluded that an appeal as to sentence in

summary conviction proceedings may only be taken by way ofappeal to the

summary conviction appeal court.) [12] In contrast to

section 676 of the Criminal Code, there is no requirement that the Crown seek leave of the Court in order toappeal against sentence under

section 830. In the case before this Court, the issues are clearly questions of law satisfying paragraph (

a) of

section 830. [ 13 ] Accordingly, the application to strike the notice of appeal was dismissed, and the Crown was granted leave to amend the notice of appeal. ____________________________ B. G. Welsh J.A. I Concur: ___________________________ J. D. Green C.J.N.L. I Concur: ___________________________ L. D. Barry J.A.