Docket: CAC 176849
Date: 20020617
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Poulin, 2002 NSCA 91]
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
CLEMENT POULIN
Respondent
REASONS FOR JUDGMENT
Counsel: Peter P. Rosinski for the Appellant
Brad G. Sarson for the Respondent
Appeal Heard: June 17, 2002
Judgment Delivered: June 17, 2002
THE COURT: Leave to appeal is granted but the appeal is dismissed as per oral reasons for judgment of Roscoe, J.A.; Cromwell and Hamilton, JJ.A., concurring.
ROSCOE, J.A.: (Orally)
[1] The respondent, Clement Poulin, was found guilty of counselling the offence of murder, which offence was not committed, contrary to s. 464(a) of the Criminal Code by Judge William Digby, of the Provincial Court. Judge Digby sentenced the respondent to a term of imprisonment for two years less a day to be served as a conditional sentence in the community, and subject to certain conditions, including house arrest for the first 12 months; house arrest from 12:00 noon to 9:00 a.m. everyday for the following six months; and curfew of 6:00 p.m to 9:00 a.m. for the last six months less a day, followed by a period of three years probation. A lifetime firearms prohibition under s. 109(2)(a) of the Criminal Code was also imposed.
[2] The Crown applies for leave and, if granted, appeals the sentence, submitting that the sentence inadequately reflects the objectives of denunciation and deterrence, and that the judge failed to provide sufficient reasons for the sentence.
[3] In his reasons for conviction, the trial judge found the respondent guilty on the basis that on at least one occasion he offered money to a person for killing his wife, after a heated discussion with her about their financial situation arising from a marital breakdown. Whether there was an additional meeting where a different proposition was made was left undetermined. He was satisfied however that by the third meeting, about four days after the first discussion of the matter, the respondent “no longer had any interest in pursuing the matter”. In the reasons for disposition, the judge said that the cases relied on by the Crown could be distinguished because they dealt with conspiracy to murder. Here, he said, there was no agreement; nor was there any money paid, or particulars, such as an address or photograph of the victim, provided to the person counselled by the respondent. He decided that “. . . taking into account the principles of sentencing, and the circumstances of this case.” and “Taking into account the provisions of Section 742 . . .", that it was “. . . a matter which meets the criteria for a conditional sentence.” There was no explicit analysis of the various principles or criteria.
[4] The applicable standard of review of the sentence is, as recently stated by Justice Oland in R. v. Longaphy, [2000] N.S.J. No. 376 (C.A.) at § 20:
[20] A sentence imposed by a trial judge is entitled to considerable deference from an appellate court. A sentence should only be varied if the appellate court is satisfied that the sentence under review is clearly unreasonable: R. v. Shropshire (1995), 102 C.C.C. (3d) 193 (S.C.C.) at pp. 209‑210. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence if the sentence is demonstrably unfit: R. v. M.(C.A.) (1996), 105 C.C. C. (3d) 327 (S.C.C.) at p. 374. The Supreme Court of Canada reiterated this standard of appellate review in reviewing a conditional sentence in R. v. Proulx (2000), 140 C.C.C. (3d) 449, [ 2000] 1 S.C.R. 61 at § 123‑126.
[5] After considering the record and the submissions of counsel, we are unanimously of the opinion that Judge Digby committed no error in principle and that the sentence imposed, while at the very low end of an acceptable range is not demonstrably unfit in the circumstances. The respondent has no related record, is suffering from a serious disease, has a positive pre-sentence report and had been released on bail for 18 months prior to the trial without incident. We agree with the argument in the respondent’s factum that the cases relied on by the Crown are clearly distinguishable on their facts. In the cases cited there was either an actual agreement that the murder would be carried out, payment of money, further details of the victim provided to the person counselled, discussions over a longer period of time, or a failure to repudiate the plan.
[6] In the circumstances, the sentence was not unfit and the reasons given, read in light of the record before the court, were adequate. Accordingly, this court should not intervene. While we grant leave to appeal, we dismiss the appeal.
Roscoe, J.A.
Concurred in:
Cromwell, J.A.
Hamilton, J.A.