R. v. Shropshire (M.T.) (1995), 188 N.R. 284 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. Michael Thomas Shropshire (respondent)
(24227)
Indexed As: R. v. Shropshire (M.T.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
November 16, 1995.
Summary:
The accused pleaded guilty to second degree murder and was sentenced to life imprisonment without eligibility for parole for 12 years. The accused appealed the period of parole ineligibility.
The British Columbia Court of Appeal, Goldie, J.A., dissenting, in a judgment reported 45 B.C.A.C. 252; 72 W.A.C. 252, allowed the appeal and reduced the period of parole ineligibility to the minimum 10 years. The Crown appealed.
The Supreme Court of Canada allowed the appeal and restored the trial judge’s order imposing a 12 year parole ineligibility period.
Civil Rights – Topic 4302
Protection against self-incrimination – Right to remain silent – [See second
Criminal Law – Topic 5670
].
Criminal Law – Topic 5670
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – The minimum sentence for second degree murder was life imprisonment without eligibility for parole for 10 years – Section 744 of the Criminal Code provided that the sentencing judge may substitute a period of parole ineligibility between 10 and 25 years “having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission” – The Supreme Court of Canada held that the Court of Appeal erred in limiting the factors to be considered to “assessment of future dangerousness” and “denunciation” – Prevention, deterrence, retribution and rehabilitation were also to be considered – Section 744 did not limit an increase in parole ineligibility to “unusual circumstances” – The appropriate standard was “as a general rule, the period of parole ineligibility shall be 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed” – Permitting a trial judge to extend the period of parole ineligibility did not usurp the parole board’s function – See paragraphs 1 to 35.
Criminal Law – Topic 5670
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – An accused pleaded guilty to second degree murder – The trial judge, in fixing the period of parole ineligibility, considered the accused’s failure or refusal to explain why he shot the victim – The Supreme Court of Canada held that an explanation for a random and seemingly senseless killing was a “circumstance surrounding the offence”, a proper consideration under s. 744 of the Criminal Code – The court agreed that “the right to silence, which is fully operative in the investigative and prosecutorial stages of the criminal process, wanes in importance in the post-conviction phase when sentencing is at issue. … it is proper to take into account the absence of an explanation of attenuating factors.” – See paragraphs 39 to 42.
Criminal Law – Topic 5670.4
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – Reduction – Appeals – The 23 year old accused pleaded guilty to second degree murder – He inexplicably shot the victim during a marijuana deal – The Crown had not sought an increase in parole ineligibility beyond the minimum 10 years – The trial judge considered all the factors in s. 744 of the Criminal Code, including (1) that the accused offered no explanation for the killing; (2) the murder was committed during the commission of another offence (drug transaction); and (3) the accused had a record for narcotics offences and violence and fixed the period of ineligibility at 12 years – The Court of Appeal reduced the period of parole ineligibility to 10 years – The Supreme Court of Canada restored the trial judge’s decision – The court stated that “the trial judge properly considered the relevant factors in exercising the discretionary jurisdiction given to him under s. 744. The Court of Appeal erred in postulating an unduly restrictive and narrow approach to s. 744 and by adopting a standard of appellate review that was tantamount to substituting its opinion for that of the trial judge.” – See paragraphs 36 to 54.
Criminal Law – Topic 5670.4
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – Reduction – Appeals – The Supreme Court of Canada held that the Court of Appeal erred in suggesting that an appellate court should reduce the period of parole ineligibility unless the trial judge gave specific reasons justifying the increased period – The court stated that a sentence (including parole ineligibility) should be varied by an appellate court only if the period was not fit or clearly unreasonable – An appellate court could not substitute its own opinion – Although reasons by a trial judge were helpful to an appellate court in assessing whether the period of parole ineligibility was fit or reasonable, “a trial judge does not err merely because no reasons are given for deciding one way or the other” – See paragraphs 44 to 53.
Criminal Law – Topic 6202
Sentencing – Appeals – Variation of sentence – Duties of appeal court – [See both
Criminal Law – Topic 5670.4
].
Criminal Law – Topic 6207
Sentencing – Appeals – Variation of sentence – Parole – [See both
Criminal Law – Topic 5670.4
].
Cases Noticed:
R. v. Wenarchuk (1982), 15 Sask.R. 240; 67 C.C.C.(2d) 169 (C.A.), refd to. [para. 21].
R. v. Mitchell (1987), 81 N.S.R.(2d) 57; 203 A.P.R. 57; 39 C.C.C.(3d) 141 (C.A.), refd to. [para. 21].
R. v. Young (L.A.) (1993), 117 N.S.R.(2d) 166; 324 A.P.R. 166; 78 C.C.C.(3d) 538 (C.A.), refd to. [para. 21].
R. v. Able (R.D.) et al. (1993), 65 O.A.C. 37 (C.A.), refd to. [para. 21].
R. v. Ly and Duong (1992), 78 Man.R.(2d) 209; 16 W.A.C. 209; 72 C.C.C.(3d) 57 (C.A.), refd to. [para. 21].
R. v. Arkell, [1990] 2 S.C.R. 695; 112 N.R. 175, refd to. [para. 22].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 23].
R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 23].
Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 32; 75 O.A.C. 161, refd to. [para. 24].
R. v. Hogben (P.F.J.) (1994), 40 B.C.A.C. 257; 65 W.A.C. 257 (C.A.), disapprvd. [para. 25].
R. v. Brown (K.W.) (1993), 31 B.C.A.C. 59; 50 W.A.C. 59; 83 C.C.C.(3d) 394 (C.A.), not folld. [para. 26].
R. v. Gourgon (1981), 58 C.C.C.(2d) 193 (B.C.C.A.), refd to. [para. 26].
R. v. Doyle (1991), 108 N.S.R.(2d) 1; 294 A.P.R. 1 (C.A.), refd to. [para. 33].
R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 41].
R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 68 C.C.C.(3d) 308, refd to. [para. 42].
R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 42].
R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [para. 42].
R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238 (C.A.), refd to. [para. 47].
R. v. Muise (D.R.)(No. 4) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 47].
R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, refd to. [para. 50].
R. v. Smith (D.A.), [1990] 1 S.C.R. 991; 111 N.R. 144; 109 A.R. 160, refd to. [para. 51].
R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 51].
R. v. Walford (1984), 12 C.C.C.(3d) 257 (B.C.C.A.), not folld. [para. 53].
Statutes Noticed:
Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 101, sect. 102 [para. 34].
Criminal Code, R.S.C. 1985, c. C-46, sect. 687(1) [para. 45]; sect. 742(b) [para. 29]; sect. 744 [para. 6].
Counsel:
William F. Ehrcke, for the appellant;
Anthony H. Zipp, for the respondent.
Solicitors of Record:
Ministry of the Attorney General, Vancouver, B.C., for the appellant;
Zipp & Co., Coquitlam, B.C., for the respondent.
This appeal was heard on June 15, 1995, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On November 16, 1995, Iacobucci, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
