R. v. Wells (J.W.) (2000), 250 A.R. 273 (SCC);
213 W.A.C. 273
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] A.R. TBEd. FE.119
James Warren Wells (appellant) v. Her Majesty The Queen (respondent) and Aboriginal Legal Services of Toronto Inc. (intervener)
(26642; 2000 SCC 10)
Indexed As: R. v. Wells (J.W.)
Supreme Court of Canada
L’Heureux-Dubé, Gonthier, Cory*, McLachlin, Iacobucci, Bastarache and Binnie, JJ.
February 17, 2000.
Summary:
The aboriginal accused was convicted by a jury of sexual assault. The sentencing judge sentenced the accused to 20 months’ imprisonment. The accused appealed his sentence.
The Alberta Court of Appeal, in a decision reported at 216 A.R. 61; 175 W.A.C. 61, dismissed the appeal. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Criminal Law – Topic 5605
Punishments (sentence) – General principles – Alternative sanctions – Section 718.2(e) of the Criminal Code required sentencing judges to consider all available sanctions other than imprisonment and to pay “particular attention to the circumstances of aboriginal offenders” – The Supreme Court of Canada stated that “s. 718.2(e) places an affirmative obligation upon the sentencing judge to inquire into the relevant circumstances. In most cases, the requirement of special attention to the circumstances of aboriginal offenders can be satisfied by the information contained in pre-sentence reports. Where this information is insufficient, s. 718.2(e) authorizes the sentencing judge on his or her own initiative to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.” – See paragraph 54.
Criminal Law – Topic 5720.3
Punishments (sentence) – Conditional sentence – Considerations – The Supreme Court of Canada stated that once a judge has determined that a fit sentence excluded a suspended sentence and a penitentiary sentence and the statutory prerequisites in s. 742.1 of the Criminal Code were fulfilled, he or she was required to consider s. 718.2(e) in determining the appropriateness of a conditional sentence – Consideration of s. 718.2(e) did not displace the need to consider all of the principles and objectives set out in ss. 718 to 718.2 – Further, “whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage … the application of s. 718.2(e) does not mean that a sentence will automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII.” – See paragraph 30.
Criminal Law – Topic 5720.3
Punishments (sentence) – Conditional sentence – Considerations – The Supreme Court of Canada discussed the availability of a conditional sentence where deterrence and denunciation were paramount considerations – See paragraphs 31 to 35 – The court stated that “depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge’s assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society’s condemnation.” – See paragraph 35.
Criminal Law – Topic 5720.4
Punishments (sentence) – Conditional sentence – When available or appropriate – The 35 year old aboriginal accused was convicted of sexual assault – The 18 year old victim, also an aboriginal, was asleep or unconscious in her bedroom at the time of the offence – There was evidence of vaginal abrasions – The accused was impaired – The accused had a prior record and a serious alcohol problem – The sentencing judge sentenced the accused to 20 months’ imprisonment – The accused appealed – He sought a conditional sentence and introduced new evidence that he would be accepted into a native alcohol treatment centre – The accused also claimed that the sentencing judge failed to place sufficient emphasis on s. 718.2(e) of the Criminal Code – The Supreme Court of Canada affirmed the sentence – A conditional sentence was inappropriate given the serious nature of the sexual assault.
Criminal Law – Topic 5720.4
Punishments (sentence) – Conditional sentence – When available or appropriate – [See second
Criminal Law – Topic 5720.3
].
Criminal Law – Topic 5817
Sentencing – Sentencing procedure and rights of the accused – Evidence – [See
Criminal Law – Topic 5605
].
Criminal Law – Topic 5833
Sentencing – Considerations on imposing sentence – Deterrence – [See second
Criminal Law – Topic 5720.3
].
Criminal Law – Topic 5846.1
Sentencing – Considerations on imposing sentence – Aboriginal offenders – Section 718.2(e) of the Criminal Code required sentencing judges to consider all available sanctions other than imprisonment and to pay “particular attention to the circumstances of aboriginal offenders” – The Supreme Court of Canada stated that “s. 718.2(e) requires a different
methodology
for assessing a fit sentence for an aboriginal offender; it does not mandate, necesarily, a different
result
. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, … the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation … As a result, it will generally be the case,
as a practical matter
, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders …” – See paragraph 44.
Criminal Law – Topic 5846.1
Sentencing – Considerations on imposing sentence – Aboriginal offenders – [See
Criminal Law – Topic 5605
, first
Criminal Law – Topic 5720.3
and first
Criminal Law – Topic 5720.4
].
Criminal Law – Topic 5848.7
Sentencing – Considerations on imposing sentence – Denunciation or repudiation of conduct – [See second
Criminal Law – Topic 5720.3
].
Criminal Law – Topic 5932
Sentence – Sexual assault – [See first
Criminal Law – Topic 5720.4
].
Cases Noticed:
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, consd. [para. 3].
R. v. Bunn (T.A.) (2000), 249 N.R. 296 (S.C.C.), refd to. [para. 5].
R. v. Proulx (J.K.D.) (2000), 249 N.R. 201 (S.C.C.), consd. [para. 5].
R. v. R.N.S. (2000), 249 N.R. 365 (S.C.C.), refd to. [para. 5].
R. v. R.A.R. (2000), 249 N.R. 322 (S.C.C.), refd to. [para. 5].
R. v. L.F.W. (2000), 249 N.R. 345 (S.C.C.), refd to. [para. 5].
R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 14].
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. [para. 14].
R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 14].
R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 121 C.C.C.(3d) 504 (C.A.), refd to. [para. 18].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 718, sect. 718.1, sect. 718.2, sect. 742.1, sect. 742.3, sect. 742.6 [para. 9].
Counsel:
Marian E. Bryant, for the appellant;
Goran Tomljanovic, for the respondent;
Kent Roach and Kimberly R. Murray, for the intervener.
Solicitors of Record:
Marian E. Bryant, Calgary, Alberta, for the appellant;
The Attorney General for Alberta, Calgary, Alberta, for the respondent;
Kent Roach and Kimberly R. Murray, Toronto, Ontario, for the intervener.
This appeal was heard on May 27, 1999, by L’Heureux-Dubé, Gonthier, Cory*, McLachlin, Iacobucci, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On February 17, 2000, the decision of the court was delivered in both official languages by Iacobucci, J.
*Cory, J., took no part in the judgment.
