R. v. Lewis, 2011 NSCA 49

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Lewis, 2011 NSCA 49 Date: 20110601 Docket: CA 338902 Registry: Halifax Between: William James Clarke Lewis Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Linda Oland Appeal Heard: May 27, 2011 Subject: Sentence

Summary: The sentencing judge sentenced the appellant, who plead guilty to 18 charges of fraud, forgery, theft and breaches of probation, to 1,058 days in a federal penitentiary. He took into account numerous factors including the appellant’s extensive criminal record. Issue: Whether the judge erred by imposing a sentence which is unreasonable and demonstrably unfit. Result: Leave to appeal granted but the appeal is dismissed. In the circumstances, the judge did not commit any error in imposing the sentence he did. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 3 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Lewis, 2011 NSCA 49 Date: 20110601 Docket: CAC 338902 Registry: Halifax Between: William James Clarke Lewis Appellant v. Her Majesty the Queen Respondent Judge(s): Oland, Fichaud and Farrar JJ. A. Appeal Heard: May 27, 2011, in Halifax, Nova Scotia Held: Leave to appeal is granted, but appeal is dismissed per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Mr. Lyle Howe, for the appellant Mr. Kenneth W.F. Fiske, Q.C., for the respondent Reasons for judgment : [ 1 ] The appellant plead guilty to 18 charges involving fraud, forgery, uttering or attempting to utter forged documents, theft and

breaches of probation. On October 25, 2010, Judge James H. Burrill sentenced him to a term of imprisonment of 1,058 days in thefederal penitentiary, taking into account a remand credit, and also made restitution orders. At the conclusion of the hearing of the appealagainst sentence, we advised that while we would grant leave to appeal, we would dismiss the appeal with reasons to follow. These arethose reasons. [2] In his decision, the sentencing judge observed that the appellant, then 45 years of age, had been committing offences for over25 years.

He reviewed a pre-sentence report, recounted the appellant's difficult background and aboriginal status, and considered theGladue factors. In his view, the sentence should emphasize specific deterrence. He stated that the sentence should take rehabilitationinto consideration. The judge also reminded himself that the principle of totality must be taken into account. Both the Crown anddefence counsel had acknowledged that given the history of the accused, particularly his criminal record which had continued unabateddespite previous sentences and incarceration, a period of incarceration was warranted.

However, they disagreed as to its duration, withdefence counsel seeking provincial rather than federal time. The judge imposed a sentence of 1,058 days incarceration in a federalpenitentiary. [3] Pursuant to s. 675 (1) (

b) of the Criminal Code of Canada, (R.S.C., 1985, c. C-46) the appellant applies for leave to appealfrom the sentence. He does not contest the individual sentences apportioned to the 18 offenses or the consecutive-concurrent divideordered by the judge. Nor does he take issue with the remand credit. The appellant submits that the sentencing judge erred at law byimposing a sentence which is unreasonable and demonstrably unfit for the range of similar offences considering the principles of totalityand proportionality, and the circumstances of the offense and of the offender. [4] In R. v.

Adams, 2010 NSCA 42, Bateman, J.A. writing for the Court described the totality principle and set out the case lawat ¶ 19 to 27. In doing so, she observed at ¶ 20 that in R. v. M. (C.A.), (SCC), [1996] 1 S.C. R. 500, this principle wasreferred to as a particular application of the principle of proportionality. [5] Having examined the record and considered the oral and written submissions and the case law presented by the appellant, wecan see no error committed by the sentencing judge as claimed by the appellant. We would grant leave to appeal, but dismiss the appeal. Oland, J.A. Concurred: Fichaud, J.A.

Farrar, J.A.