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Criminal Legal Cases Jeevan Hayre Douglas College CRIM 1160- Research Paper 300303231

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R. v. Comeau Review of the Facts The facts of in this case are tricky in a sense some facts are not discoverable. Firstly, the trial judge had to puzzle together events that happened in 1995 as related by witnesses who testified in 2005. In addition to the “faded memory” problem, several of the witnesses were recollecting events they had observed while under the influence of alcohol (R. v. Comeau, 2008). On August 9, 1996, Anique Ginette Marie Comeau set off a chain of events that risen in the death of Marc André LeBlanc. In the early hours of August 9, Ms. Comeau and Mr. LeBlanc were amongst the patrons of the Rockin’ Rodeo bar located in Moncton. Out of no where, Ms. Comeau pointed out Mr. LeBlanc and informed other subscribers of the bar that he had raped her sister. Ms. Comeau declared that she wanted Mr. LeBlanc “beat up” and that she wished he were “dead” (R. v. Comeau, 2008). Ms. Comeau’s remarks were heard by one fellow Edmond Bastarache, who was acquainted with Mr. LeBlanc. Fearing that some harm might come Mr. LeBlanc’s way, Mr. Bastarache hurried him to leave. However, Ms. Comeau had noticed that Mr. LeBlanc was in fact remaining on the property still and begged Mr. Bastarache to “punch him out” due to the horrifying incident. Edmond Bastarache again pleaded Mr. LeBlanc to go home but the latter refused, and the two men exchanged words leading to a fight. At that point, Mr. Bastarache assaulted Mr. LeBlanc by pushing him and striking him. Mr. LeBlanc had retreated the fight. Edmond Bastarache chased him across the parking lot but gave up chase when Mr. LeBlanc crossed the street. Upon crossing the street, Mr. LeBlanc encountered a second assailant. As he was fleeing, Mr. LeBlanc “bumped into” Stephen Bastarache, who responded by shoving Mr. LeBlanc. In a resulting fight, Mr. LeBlanc fell backwards and struck his head on the ground with devastating impact to cause a fracture of his skull that would lead to his passing. The extent of this assault upon Mr. LeBlanc, including whether or not others participated in the incident, is unclear. In the aftermath of that incident, Ms. Comeau was heard to say words to the effect that Mr. LeBlanc “deserved what he got” or that “he deserved to die (R. v. Comeau, 2008). After Mr. LeBlanc’s death, Edmond Bastarache was charged with manslaughter. On January 21, 1998, he pleaded guilty to the included offence of assault causing bodily harm and on April 23 of that year, he was sentenced to a term of imprisonment of six months, to be followed by probation for twelve months (R. v. Comeau, 2008). In early 2005, Stephen Bastarache and Ms. Comeau were both charged with manslaughter in the death of Marc André LeBlanc. Mr. Bastarache (Stephen) died while on remand. The trial judge concluded that Ms. Comeau had counselled Edmond Bastarache to commit an assault and he convicted her of assault causing bodily harm.

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Review of the Judge’s Decision The trial judge’s final decision was Ms. Comeau is not guilty of the assault that resulted in Mr. LeBlanc’s death, hence of his manslaughter, and that finding has never been challenged. When she counselled Mr. Edmond Bastarache to assault Mr. LeBlanc, Ms. Comeau was a 19-year-old first-time offender. The offence was committed at a time when her judgment was impaired by the use of alcohol (R. v. Comeau, 2008). Ms. Comeau was sentenced on November 24, 2006 and served 16.5 weeks (almost four months) in jail before she was released on an undertaking pending the determination of her appeal. Its unable to simply sentence Ms. Comeau to time served because the sentence is “one that is unsanctioned in law.” Bastarache, who pleaded guilty to assault causing bodily harm, was sentenced to six months’ imprisonment.

Review of a Precedent used by a Judge Review of a precedent used by the judge was by R. v. Savoie, 1994. This was because of Ms. Comeau’s case of sentencing. It stated that its unable to simply sentence Ms. Comeau to time served because this sentence is “one that is unsanctioned in law” An example of a similar problem is Beverly Lucille Savoie. She was convicted of an aggravated assault under s.268(1) of the Criminal Code of Canada against her common law husband (R. v. Savoie, 1994). She was sentenced by a judge of the Provincial Court to time served awaiting trial, seven days, and placed on probation. At the trial level, a sentence of time served, is one that is unsanctioned in law. Similarly, the imposition of an order of probation cannot exist as a sentence by itself. Leave to appeal is granted and the sentence imposed by the Provincial Court judge is quashed. Time served can be taken into consideration by the trial judge when imposing sentence, but it cannot be the sentence. Rather than remit the matter to the trial judge to impose a sentence authorized by law, we will fix the sentence that, in our opinion, ought to have been given (R. v. Savoie, 1994). Savoie's husband, Murray Goodwin, had been out drinking during the whole day. When he returned to the apartment that he shared with Savoie, he damaged a framed picture of Savoie and her two children. He then proceeded to snooze. About two o'clock in the morning, Savoie returned to the apartment. She had been drinking as well. She saw the damaged picture and became angry. She woke up Goodwin. He denied doing the damage to the photo and they argued intensely. He started for the bathroom to relieve himself from the argument. She got a butcher knife from the kitchen and attacked him striking him in the left chest and collapsing a lung (R. v. Savoie, 1994). Her fourteen-year-old son attempted to restrain her back of killing the husband. Goodwin got the knife away from her, suffering a cut on the hand in doing it. He placed the knife out of her reach and put on his hat and coat with the intention of getting away. Savoie, quickly, got two steak knives from the kitchen. She put one on the table but advanced toward Goodwin in a renewed attack. Again, her son intervened to try to stop her, but it was the arrival of the police that stopped everything. One of the police officers disarmed her. Ordinarily

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a court would have to consider the possibility of a penitentiary sentence for an unprovoked aggravated assault with a knife in which such injuries had been inflicted. There were mitigating circumstances in this case, however, that must be given weight. Savoie's relationship with Goodwin had seen instances of physical abuse on the part of both of the parties but more so on his part when alcohol had been involved (R. v. Savoie, 1994). As well, Goodwin testified that he felt blameworthy and that he had not been supportive of her. She was treated as a first offender. Giving due regard to the principles of general and specific deterrence, the protection of the public, the rehabilitation of the respondent, the seriousness of the attack with a weapon, that the assault was in the course of being renewed against the victim at the time of the arrival of the police, this Court sentences the respondent to serve a term of imprisonment of one year. Another review of a precedent used by the judge is Rex v. McManus. This Court substituted a verdict for a lesser offence and in passing sentence was able to make it effective from the date the offender had initially been sentenced for the greater offence. However, the legislative scheme of the day is different from the current one (Rex v. McManus, 1923). In 1923, s. 1016(2) of the Criminal Code provided that the court of appeal could “pass such sentence in substitution of the sentence passed by the trial court”. Moreover, at the time, the Criminal Code did not provide what is currently found in s. 719: “A sentence commences when it is imposed, except where a relevant enactment otherwise provides.” It appears by the record sent here that on June 13, the prisoner had negotiated with Mercer the prosecutor, for the purchase of a car, and had signed and given to him a cheque for $1,550 which, however turned out to be bogus and of no value, there being no funds in bank to meet it (Rex v. McManus, 1923). Evidence discloses that the prosecutor never parted with the title to the property, and never intended to part with it until he was paid the cash. He did not part with the car for the cheque or accept the cheque in payment for it. He says that he had no idea of giving up control of, or property in the car when he left it in the prisoner 's possession at Hampton over night. Instead of taking the car to Sussex on the following morning as he had promised to do, the prisoner made off with it, and two days later was arrested at FlorenceVille and had returned the car to the owner. It is clear from this evidence that the accused should not have been convicted of obtaining the automobile by false pretences, for the prosecutor did not part with nor intend to part with his right of property in it, but merely the possession, and this does not constitute the offence (Rex v. McManus, 1923). The appellant here has been convicted of an offence upon indictment, and on that indictment the jury could have found him guilty of some other offence, e.g., the offence of attempting to obtain goods by false pretences, and it clearly appears by the jury's finding that they must have been satisfied of facts which proved him guilty of attempting to obtain. The prisoner was indicted and convicted of the offence of obtaining goods under false pretences and undoubtedly could on that indictment have been found guilty of an attempt to commit the offence of which he was convicted, because it is apparent that upon the actual finding of the jury upon the facts proved in evidence they must have been satisfied of facts which proved the defendant guilty of the attempt to commit the offence for that they have in fact found him

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guilty of the offence itself. It was contended, however, that in order to establish the crime of false pretences it must appear that the prosecutor parted with his possession or his property by a false representation of a past or existing fact, and that from the evidence in the case it was clear that he did not so part with the possession or his property but only did so because of a promise of the prisoner to return the property next morning, and that therefore the jury was not justified in convicting him of the main offence. The jury was justified in arriving at the conclusion they did in finding the defendant guilty of obtaining the property by a false representation, but it is perfectly clear that there was sufficient evidence to justify them in finding, if they had so found, or to justify this Court in coming to the conclusion that the defendant was guilty of an attempt to obtain the property by false pretences, and it does seem that the justice of the case would be met by the adoption of the course provided by the amendment to the Criminal Code. The appeal will therefore neither be allowed nor dismissed, but there will be substituted by this Court for the verdict found a verdict of guilty of an attempt to obtain goods by false pretences, and in substitution for the sentence passed by the trial Court the defendant will be sentenced to imprisonment in the common lockup of the County of Kings for the term of 18 months, sentence to run from July 7, last past, and the time spent by the defendant in the penitentiary at Dorchester to be taken into account as part of his present sentence (Rex v. McManus, 1923). Conceptual Analysis of the Judge’s Decision The important legal aspect the case highlighted was that it was along the lines of innocent until proven guilty. The court had prove that a crime is committed and the defendant the one to be possibly punished. Its significant due to Ms. Comeau had to defend herself that she didn’t cause the death of Mr. Leblanc. It was truly about her being influenced by alcohol and she was the age of nine-teen. Also Mr. Bastarache’s was also influenced by it as well by striking Mr. LeBlanc and made him pass away.

R. v. Brass

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Review of the Facts On October 23, 2018, a jury convicted Mr. Brass of second-degree murder in the death of Bryer Prysiazniuk-Settee. In so doing, it rejected the arguments of defence counsel that Mr. Brass was acting in self-defence, or Mr. Brass did not have the necessary mental intent for murder in shooting Mr. Prysiazniuk-Settee. The Crown’s view of the facts which was summarized in the final charge to the jury as follows: the accused, Christopher Brass caused Bryer PrysiazniukSettee’s death by shooting him in the chest. It’s the Crown’s contention that when the accused shot at the victim six times he did so either meaning to cause the victim’s death or meaning to cause bodily harm that he knew was so serious and dangerous that it was likely to kill the victim. On the morning of February 8, 2017, the victim attended to the second floor suite at #2 - 270 Powers Street, Winnipeg (R. v. Brass, 2018). Present at that location when the victim arrived were the two occupants of the suite, a male and a female, as well as their friends Cara Hall and Christopher Brass. Mr. Prysiazniuk-Settee went to the suite in order to buy some methamphetamine. When he arrived, he was greeted at the interior door by the female occupant of the suite, who then sold him a small amount of the drug. Mr. PrysiazniukSettee then took off his shoes and entered the residence, engaging Ms. Hall in conversation. As the victim turned to leave the residence, he observed the accused sleeping on a chair in the living room. Mr. Prysiazniuk-Settee and Mr. Brass had previously been involved in a physical confrontation at that location. Mr. Brass, recognizing Mr. Prysiazniuk-Settee from the previous confrontation, stood up producing a small silver handgun and proceeded to shoot. In total, Mr. Brass discharged six rounds at the victim, two of which struck Mr. Prysiazniuk-Settee in the upper chest area. (R. v. Brass, 2018). Mr. Prysiazniuk-Settee fled from the residence and collapsed a short distance away. He died of the gunshot wound to the chest. It is the position of the Crown that Mr. Brass should be sentenced to life imprisonment for the Winnipeg murder with a period of parole ineligibility of 25 years. It is further the position of the Crown that the requested 25-year period of parole ineligibility should run consecutively to the 25-year period of parole ineligibility which Mr. Brass received in respect of the life sentence he is currently serving for first-degree murder imposed on September 20, 2018 (the Regina murder). In the result, the Crown is asking that Mr. Brass serve a total period of parole ineligibility of 50 years arising out of both murder convictions. It’s the position of counsel for Mr. Brass that any period of parole ineligibility imposed in respect of the Winnipeg murder should run concurrently with the sentence Mr. Brass received on September 20, 2018 for firstdegree murder in respect of the Regina murder. Accordingly, it is the defence position that Mr. Brass serve a total of 25 years of parole ineligibility in respect of both murder convictions. These are my reasons in respect of the sentence to be imposed on Mr. Brass arising out of his conviction for the Winnipeg murder on October 23, 2018 (R. v. Brass, 2018).

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Review of the Judge’s Decision The sentence imposed upon Mr. Brass in respect of the conviction for second degree murder for the killing of Mr. Prysiazniuk-Settee is imprisonment for life with parole ineligibility for 15 years. The period of parole ineligibility of 15 years in this case is to run consecutively to the 25-year period of parole ineligibility imposed in respect of the conviction for first degree murder that was entered against Mr. Brass in Regina on September 20, 2018, for a global parole ineligibility period of 40 years (R. v. Brass, 2018). A mandatory weapons prohibition order pursuant to s. 109 of the Code, and an order that Mr. Brass is not to directly or indirectly contact members of the victim’s immediate family during the time he is jail. It came to the reason of similar precedent cases before, Mr. Brass has been previously convicted in Regina due to another matter. Review of a Precedent used by the Judge In Vuozzo, the accused pleaded guilty to one count of second-degree murder and one count of first-degree murder, both occurring as part of the same criminal transaction. On the seconddegree murder conviction, the offender was sentenced to life imprisonment with no eligibility for parole for 10 years. On the first-degree murder conviction, the offender was sentenced to life imprisonment with no eligibility for parole for 25 years, with the period of parole ineligibility running consecutively to the 10-year period imposed on the second degree murder conviction. The Court considered the question of whether the accused “has previously been convicted” as stated in s. 745 (b) of the Code, or “has already been convicted” as stated in s. 745.51 of the Code. The Court applied s. 745.51 and considered whether the resulting sentence, to be served consecutively, would be unduly long or harsh. In accordance with the interpretations of s. 745 (b) and s. 745.51 of the code set out in Vuozzo, it conclude that while s. 745 (b) of the Code is not applicable in this case because Mr. Brass has not “previously been convicted” of murder, it is open for the court to impose a consecutive period of parole ineligibility in this case provided the relevant criteria are met since both murders occurred after December 2, 2011 (R v. Vuozzo, 2015).

The view of the conclusions in respect of the applicability of s. 745.51 of the Code, the jury should have been asked to provide its recommendations about whether any periods of parole ineligibility should be served consecutively. In so doing, the approach suggested by the Crown that is assumed the jury members recommended that the periods of parole ineligibility be served concurrently. One factor which it will consider along with the other considerations set out in s. 745 (1) of the Code, namely, the character of the offender, the nature of the offence, and the circumstances surrounding its commission (R v. Vuozzo, 2015). Furthermore, the recommendations of the 12 jurors as to whether to increase the period of parole ineligibility in the context of the instruction on s. 745.2 of the Code are still relevant. Given that its have found that the mandatory 25-year period of parole ineligibility mandated by s. 745 (b) of

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the Code is not applicable because Mr. Brass has not “previously been convicted” of murder within the meaning of that section, the recommendations of the jurors pursuant to s. 745.2 of the Code as to whether the period of parole ineligibility should be increased from the minimum of 10 years is one of the criteria to be considered for the purposes of that determination (R v. Vuozzo, 2015). In fact, the jury’s recommendation as to raising the mandatory 10-year period of parole ineligibility for the Winnipeg murder and the s. 745.21 instruction to receive the jury’s recommendation as to whether the parole ineligibility determined to be appropriate for the Winnipeg murder conviction is to be served consecutively to that imposed in respect of the Regina murder ( R v. Vuozzo, 2015). The jurors consider it the same criteria for the purpose of making recommendations either for s. 745.2 or s. 745.21 of the Code. To determine the issue of whether the period of parole ineligibility for the Winnipeg murder should be concurrent with or consecutive to the period of parole ineligibility imposed in respect of the Regina murder on the assumption that the members of the jury recommended that the periods of parole ineligibility be served concurrently. On a practical note, it might be advisable in future “multiple murder” cases, where there is a lack of clarity about whether s. 745 (b) of the code applies, to instruct the jury in respect of both s. 745.2 and s. 745.21 of the code (R v. Vuozzo, 2015). Since an instruction in respect of each of those sections needs to be put to the jury before its discharged, it would be best to put both instructions to the jury be...