R. v. Bunn (T.A.) (2000), 142 Man.R.(2d) 256 (SCC);
212 W.A.C. 256
MLB Headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2000] Man.R.(2d) TBEd. JA.042
Her Majesty The Queen (appellant) v. Thomas Andrew Bunn (respondent) and the Attorney General of Canada and the Attorney General for Ontario (interveners)
(26339; 2000 SCC 9)
Indexed As: R. v. Bunn (T.A.)
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
January 31, 2000.
Summary:
An accused was found guilty by a jury on six counts each of criminal breach of trust and theft. The breach of trust and the theft charges related to the same transactions. A stay of proceedings was entered respecting the theft charges.
The Manitoba Court of Queen’s Bench sentenced the accused to two years’ imprisonment. The accused appealed the sentence. The Crown cross-appealed the sentence. Before the appeal was heard, provisions in the Criminal Code for conditional sentences came into effect.
The Manitoba Court of Appeal, in a decision reported 118 Man.R.(2d) 300; 149 W.A.C. 300, allowed the accused’s appeal and reduced the sentence to two years’ imprisonment less a day and granted a conditional sentence. The Crown appealed regarding the conditional sentence.
The Supreme Court of Canada, Bastarache, L’Heureux-Dubé and Binnie, JJ., dissenting dismissed the appeal.
Criminal Law – Topic 5609
Punishments (sentence) – General principles – Right to benefit of lesser punishment – [See first
Criminal Law – Topic 5720.9
].
Criminal Law – Topic 5720.4
Punishments (sentence) – Conditional sentence – When available or appropriate – [See both
Criminal Law – Topic 5720.9
].
Criminal Law – Topic 5720.9
Punishments (sentence) – Conditional sentence – Appeals – An accused lawyer was convicted on six counts of criminal breach of trust – The sentencing judge sentenced the accused to two years’ imprisonment – Subsequently, Criminal Code provisions for conditional sentences came into effect – On appeal, the Manitoba Court of Appeal reduced the sentence to two years’ imprisonment less a day and granted a conditional sentence – The Crown appealed, arguing that the court of appeal erred in reducing the sentence by one day and in applying the conditional sentencing provisions – The Supreme Court of Canada held that the accused was entitled to the changes to the law on appeal and, therefore; the court of appeal was entitled to conduct a resentencing – See paragraphs 14 to 21.
Criminal Law – Topic 5720.9
Punishments (sentence) – Conditional sentence – Appeals – An accused lawyer was convicted on six counts of criminal breach of trust – Seventeen beneficiaries were affected – The total amount in issue was $86,000 – Supporting disabled wife and a teenage daughter – Responsible for household duties – Living modestly – Suspended from the law society – A sentencing judge sentenced the accused to two years’ imprisonment – Subsequently, Criminal Code provisions for conditional sentences came into effect – The Manitoba Court of Appeal reduced the sentence to two years’ imprisonment less a day to be served in the community – The Crown appealed – The Supreme Court of Canada held that the appellate court was entitled to some deference and there was no reason to interfere with the decision – See paragraphs 22 to 24.
Criminal Law – Topic 5941
Sentence – Criminal breach of trust – [See second
Criminal Law – Topic 5720.9
].
Criminal Law – Topic 6201
Sentencing – Appeals – Variation of sentence – Powers of appeal court – [See both
Criminal Law – Topic 5720.9
].
Cases Noticed:
R. v. Proulx (J.K.D.) (2000), 249 N.R. 201 (S.C.C.), refd to. [paras. 1, 26].
R. v. L.F.W. (2000), 249 N.R. 345 (S.C.C.), refd to. [para. 1].
R. v. R.N.S. (2000), 249 N.R. 365 (S.C.C.), refd to. [paras. 1, 25].
R. v. R.A.R. (2000), 249 N.R. 322 (S.C.C.), refd to. [paras. 1, 25].
R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 351; 26 C.R.N.S. 1, refd to. [para. 4].
R. v. Dunn (J.), [1995] 1 S.C.R. 226; 176 N.R. 375; 79 O.A.C. 161, refd to. [paras. 9, 27].
R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [paras. 17, 32].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [paras. 21, 27].
R. v. Barker (W.L.) (1995), 102 Man.R.(2d) 305; 93 W.A.C. 305 (C.A.), refd to. [para. 33].
R. v. Kelleher, [1995] M.J. No. 398 (Prov. Ct.), refd to. [para. 33].
R. v. Ryan, [1976] 6 W.W.R. 668; 1 A.R. 355 (C.A.), refd to. [para. 33].
R. v. Bergeron, [1998] Q.J. No. 3539 (C.Q.), refd to. [para. 33].
R. v. Gingera, [1966] 1 C.C.C. 273 (Man. C.A.), refd to. [para. 33].
R. v. Manolescu (J.N.) (1997), 202 A.R. 241 (Prov. Ct.), refd to. [para. 33].
R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.), refd to. [para. 33].
R. v. Shandro (1985), 65 A.R. 311 (C.A.), refd to. [para. 34].
Marchessault v. R. (1984), 41 C.R.(3d) 318 (Que. C.A.), refd to. [para. 34].
R. v. Foran, [1970] 1 C.C.C. 336 (Ont. C.A.), refd to. [para. 36].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 718, sect. 718.1 [para. 6]; sect. 718.2(e) [para. 18]; sect. 718.2, sect. 742.1 [para. 6].
Counsel:
Matthew Britton, for the appellant;
Martin D. Glazer, for the respondent;
S. Ronald Fainstein, Q.C., for the intervener, the Attorney General of Canada;
Kenneth L. Campbell and Gregory J. Tweney, for the intervener, the Attorney General for Ontario.
Solicitors of Record:
Manitoba Justice, Winnipeg, Manitoba, for the appellant;
Martin D. Glazer, Winnipeg, Manitoba, for the respondent;
Deputy Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;
Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario.
This appeal was heard on May 25 and 26, 1999, before Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory*, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On January 31, 2000, the decision of the court was delivered in both official languages and the following opinions were filed:
Lamer, C.J.C. (Gonthier, McLachlin, Iacobucci and Major, JJ., concurring) – see paragraphs 1 to 24;
Bastarache, J., dissenting (L’Heureux-Dubé and Binnie, JJ., concurring) – see paragraphs 25 to 38;
*Cory, J., took no part in the judgment.
