R. v. Taylor (W.E.) (2009), 460 A.R. 266 (CA);
462 W.A.C. 266
MLB headnote and full text
Temp. Cite: [2009] A.R. TBEd. JL.061
Her Majesty the Queen (respondent) v. William Edgar Taylor (applicant/appellant)
(0703-0051-A; 2009 ABCA 254)
Indexed As: R. v. Taylor (W.E.)
Alberta Court of Appeal
Côté, J.A.
July 21, 2009.
Summary:
The accused applied for an order that Adult Probation Services produce a post-sentence report for his sentence appeal. No one sought or got a report for the sentencing at the end of trial. The Crown objected.
The Alberta Court of Appeal, per Côté, J.A., dismissed the application. Evidence was needed to get an order directing probation authorities to prepare a post-sentence report, especially where no Gladue issues arose. In the present case, the evidence was completely inadequate to that end.
Criminal Law - Topic 6201.1
Sentencing - Appeals - Post-sentence report - The accused applied for an order that Adult Probation Services produce a post-sentence report for his sentence appeal - No Alberta decision could be found - The Crown's response was that the court had no such power, and cited R. v. Takhar (2007) (B.C.C.A.) - The Alberta Court of Appeal, per Côté, J.A., found no clear statement in Takhar denying such a power, and a number of statements that a court could order one in the right case - The Criminal Code answered the question, as Takhar partly explained - First, s. 687 read that the court might confirm or vary the sentence "on such evidence, if any, as it thinks fit to require or to receive" - The phrase "if any", must mean additional evidence beyond what the original sentencing judge heard; the word "require" must refer to ordering evidence to be prepared or adduced - Second, s. 721 allowed a "court" to order the preparation of a pre-sentence report - And s. 718 defined the word "court"as including "a court that hears an appeal" - The court rejected the Crown's argument that the combined ss. 718 and 721 should be confined to an appeal court which was permitted to sentence afresh - That interpretation was "completely impractical" - Therefore, the court had no hesitation in saying that a court of appeal about to hear a sentence appeal might, in the right circ*mstances, order a post-sentence report under s. 721 - See paragraphs 2 to 9.
Criminal Law - Topic 6201.1
Sentencing - Appeals - Post-sentence report - The accused applied for an order that Adult Probation Services produce a post-sentence report for his sentence appeal - No one sought or got a report for the sentencing at the end of trial - An articling student had interviewed the accused, who told her that "a. he has done well at the Institution, and b. he has matured a lot in the last couple of years, and 'he feels that this [presumably both] should be brought to the Court's attention'" - The Crown feared opening the floodgates, wasting public resources, and delaying sentence appeals - The Alberta Court of Appeal, per Côté, J.A., dismissed the application - The court had similar concerns as the Crown - Evidence was needed to get an order directing probation authorities to prepare a post-sentence report, especially where no Gladue issues arose - In the present case, the affidavit was completely inadequate to that end - One did not need a report by Adult Probation Services to prove proposition "a" - And Adult Probation Services dealt with people at large in the community, not serving prisoners - A post-sentence report was also far from the only method available in demonstrating proposition "b" - Finally, R. v. Lévesque (2000) (S.C.C.) held that the usual rules for admitting new evidence on a criminal appeal applied to sentence appeals - The affidavit did not begin to meet those requirements - See paragraphs 10 to 15.
Cases Noticed:
R. v. Takhar (G.) (2007), 246 B.C.A.C. 87; 406 W.A.C. 87; 2007 BCCA 423, consd. [para. 3].
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. [para. 11].
R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 2000 SCC 47, refd to. [para. 14].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 687 [para. 4]; sect. 718, sect. 721 [para. 5].
Counsel:
S.D. Hughson, Q.C., for the respondent;
P.G. Lister, Q.C., for the applicant/appellant.
This application was heard on June 24, 2009, by Côté, J.A., of the Alberta Court of Appeal, who delivered the decision and reasons for decision, filed at Edmonton, Alberta, on July 21, 2009.
