Her Majesty the Queen v. Jensen [Indexed as: R. v. Jensen]

74 O.R. (3d) 561

[2005] O.J. No. 1052

Docket: C37975

Court of Appeal for Ontario,

Sharpe, Simmons and LaForme JJ.A.

March 23, 2005

Charter of Rights and Freedoms -- Fundamental justice -- Election by accused -- Accused charged with second degree murder -- Accused bringing application for order permitting election by judge alone because of risk that jury would not understand legal instructions on intent and extreme intoxication -- Studies relied on by accused not dealing with particular instructions applicable in this case and being entitled to limited weight -- Trial judge not erring in dismissing application -- Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1).

Criminal law -- Trial -- Charge to jury -- Credibility -- Trial judge not erring in failing to give W. (D.) instruction to jury when instructing them on standard of proof applicable to defence of extreme intoxication -- W. (D.) instruction not arising in relation to defence of extreme intoxication as accused bore burden of proof on balance of probabilities on that issue.

Criminal law -- Trial -- Charge to jury -- Intoxication -- Trial judge failing to explicitly instruct jury that level of intoxication required to negate specific intent to kill could be less than intoxication akin to automatism -- Instruction implicit in trial judge's full explanation of relevance of evidence of intoxication to level of intent required for murder -- Jury would have realized that even if rejected accused's evidence that he was in state of blackout akin to automatism, they were still required to determine whether he was sufficiently intoxicated to negate intent for murder.

Criminal law -- Trial -- Election by accused -- Crown consent -- Accused charged with murder bringing s. 24(1) application under Charter arguing that Crown's refusal to consent to judge alone trial depriving him of rights pursuant to ss. 7 and 11(d) -- Accused seeking to rely on defence of extreme intoxication and arguing jury would be biased against defence and would be unable to understand requisite complex instructions -- Crown refusing consent based on general policy -- No allegation of improper motive behind refusal -- Accused relying on social science studies to support position -- Trial judge did not err in according studies little weight as none dealing with same instructions nor situations in which participants heard relevant evidence and then legal directions on extreme intoxication -- Trial judge did not err in dismissing application by accused -- Potential bias by jurors adequately dealt with by challenge for cause and instructions to jury -- Appeal by accused dismissed -- Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24.

Criminal law -- Sentencing -- Murder -- Parole ineligibility -- Aboriginal offender convicted of second degree murder arguing that trial judge failed to consider application of Gladue principles adequately when increasing parole ineligibility to 12 years' imprisonment -- Crown arguing that principles not applicable when offender receives life sentence or, if applicable, that Gladue provides that sentence imposed for murder would be same as for non-aboriginal offender -- Trial judge properly considered principles in Gladue which applied notwithstanding [page562] mandatory minimum life sentence -- Sentence imposed fit -- Appeal from sentence dismissed.

Criminal law -- Sentencing -- Principles -- Aboriginal offenders -- Parole ineligibility -- Aboriginal offender convicted of second degree murder arguing trial judge failed to consider application of Gladue principles adequately when increasing parole ineligibility to 12 years imprisonment -- Crown arguing principles not applicable when offender receives life sentence or, if applicable, that Gladue provides sentence imposed for murder would be same as for non-aboriginal offender -- Trial judge properly considered principles in Gladue which applied notwithstanding mandatory minimum life sentence -- Sentence imposed fit -- Appeal from sentence dismissed.

The accused was charged with murdering a female drinking companion. At trial, he admitted that he killed the victim, but (after obtaining a ruling that s. 33.1 of the Criminal Code, R.S.C. 1985, c. C-46 is unconstitutional) he advanced a defence of extreme intoxication akin to automatism. Alternatively, he claimed that he was guilty of no more than manslaughter because he was too intoxicated to form the specific intent required for second degree murder. The accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 12 years. He appealed the conviction and the parole ineligibility period.

Held, the appeal should be dismissed.

The trial judge did not err in dismissing a pre-trial application by the accused for an order under s. 24(1) of the Canadian Charter of Rights and Freedoms granting the accused the right to elect trial by judge alone and dispensing with the requirement of Crown consent. The accused had argued that his fair trial rights under ss. 7 and 11(d) of the Charter would be infringed if he was required to proceed before a jury because of the potential for jury bias against the defence of extreme intoxication and because of the risk that the jury would not understand the relevant legal instructions. The accused acknowledged that defence counsel at trial conceded that the concern relating to juror bias could be resolved by means of a challenge for cause, which the trial judge permitted. The juror comprehension evidence relied on by the defence at trial was entitled to limited weight and the trial judge made no material errors in rejecting it. The evidence of a psychology professor that jur ors have difficulty comprehending intoxication instructions was not premised on the Daviault instructions that were applicable in this case. The study conducted by the professor was of limited value as it did not involve persons who had heard evidence relating to jury instructions to which they listened, nor did the study simulate the deliberation/ question and answer process. There was no indication that any of the studies relied on dealt with the form of instructions that would be applicable in this case.

The trial judge did not err in failing to give a W. (D.) instruction to the jury when instructing them on the standard of proof applicable to the defence of extreme intoxication. The W. (D.) instruction relates to application of the standard of proof beyond a reasonable doubt. Here, that standard of proof did not arise in relation to the defence of extreme intoxication because the accused bore the burden of proof on a balance of probabilities on that issue. In any event, failure to give a W. (D.) instruction does not amount to an error in law where the jury is not otherwise misled as to the application of the reasonable doubt standard to the accused's credibility. There was no reasonable possibility that the jury in this case misunderstood the standard of proof on a balance of probabilities pertaining to the defence of extreme intoxication. [page563]

It may have been preferable for the trial judge to have explicitly instructed the jury that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism. However, this instruction was implicit in the trial judge's very full explanation of the relevance of evidence of intoxication to the level of intent required for murder. The distinction would have been apparent to the jury.

The trial judge properly considered relevant Gladue factors when he increased the parole ineligibility for the aboriginal accused to 12 years. Contrary to the Crown's argument, it is not the case that Gladue has no application where the offender receives a life sentence. While there will be cases in which the Gladue principles will not weigh as heavily as other sentencing objectives and, in those cases, it may be likely that the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same, the Gladue principles remain applicable in all cases where an aboriginal person is the offender. The trial judge gave careful consideration to the Gladue principles and to the provisions of s. 718.2(e) of the Criminal Code. He did not increase the parole ineligibility period on the basis of a limited finding that the accused had chosen to drink. He considered the brutality of the murder, the fact that the victim was defenceless, the callous nature of the accused's conduct following the offence, the accused's presence of mind in hiding the murder weapon, the need to protect society against violent crime fuelled by alcohol and the accused's previous lack of success in attempting to overcome his alcoholism. There was no error in the trial judge's application of Gladue or in his conclusions concerning the appropriate parole ineligibility period.

APPEAL from the conviction entered on October 4, 2000 by Then J. of the Superior Court of Justice sitting with a jury for second degree murder and from the sentence imposed on October 20, 2000. [page564]

R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302. Other cases referred to R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 28 B.C.L.R. (2d) 145, 85 N.R. 81, [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77, 64 Q.A.C. 81, 118 D.L.R. (4th) 469, 173 N.R. 1, 24 C.R.R. (2d) 1, 93 C.C.C. (3d) 21, 33 C.R. (4th) 165; R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1) Criminal Code, R.S.C. 1985, c. C-46, ss. 33.1 [as am.], 473 [as am.], 718.2 [as am.] Authorities referred to Ferguson, G.A., and The Hon. J.C. Bouck, CRIMJI Canadian Criminal Jury Instructions, 3rd ed., looseleaf (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, 1997)

Melvyn Green and Jonathan Dawe, for appellant. David Lepofsky and Geoffrey Chesney, for respondent. Nicholas Devlin, for intervenor, Attorney General of Canada.

The judgment of the court was delivered by

[1] SIMMONS AND LAFORME JJ.A.: -- The appellant appeals from his conviction for the second degree murder of Lynda Vickery. In the alternative, the appellant requests leave to appeal the parole ineligibility period of 12 years imposed in conjunction with the mandatory sentence of life imprisonment.

[2] Ms. Vickery and the appellant were drinking companions. Both were described as alcoholics. On August 29, 1998, Ms. Vickery was found dead in her room at the rooming house where she lived. She had been stabbed 16 times. The examining pathologist testified that at the time of her death Ms. Vickery had an extremely high blood alcohol level.

[3] The police found a bloodstained knife in a plastic bag behind the refrigerator in Ms. Vickery's room. Subsequent investigation revealed that the appellant's fingerprint was on the bag and the knife, and that the blood on the knife was Ms. Vickery's. The police also found a wallet containing only Ms. Vickery's identification in a garbage can. In addition, two civilian witnesses gave evidence of inculpatory statements made by the appellant on August 29, 1998; the appellant told one of the witnesses that he killed someone, he told the other witness that he stabbed Ms. Vickery with a sharp object.

[4] At trial, the appellant admitted that he killed Ms. Vickery. However, prior to jury selection, the appellant obtained a ruling from the trial judge that s. 33.1 of the Criminal Code [See Note 1 at the end of the document] is unconstitutional. Relying on his own evidence of significant alcohol and drug consumption on August 28, 1998 and that he had no recollection of the killing, and the expert evidence of a pharmacist, the appellant advanced a defence of extreme intoxication akin to automatism as permitted by the Supreme Court of Canada's decision in R. v. Daviault [See Note 2 at the end of the document]. In the alternative, the appellant claimed that he was guilty of no more than manslaughter because he was too intoxicated to form the specific intent required for second degree murder. [page565]

The Conviction Appeal

[5] At the appeal hearing, the appellant abandoned his ground of appeal premised on this court's decision in R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 9 C.R. (4th) 347 (C.A.), but raised three issues on his appeal against conviction. We called on the Crown only in relation to the third of those issues.

[6] First, the appellant submits that the trial judge erred by dismissing the appellant's pre-trial application for an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms [See Note 3 at the end of the document] granting the appellant the right to elect trial by judge alone and dispensing with the requirement of Crown consent under s. 473(1) of the Criminal Code. The appellant brought the s. 24(1) Charter application following the trial judge's ruling that s. 33.1 of the Criminal Code is unconstitutional. Prior to making the s. 24(1) Charter application, the appellant requested that the Crown consent to a judge alone trial in accordance with s. 473(1) of the Criminal Code. The Crown refused its consent based on reasons of general policy. There was no suggestion at trial that the Crown's consent was refused for improper reasons.

[7] In support of his s. 24(1) Charter application, the appellant claimed that his fair trial rights under ss. 7 and 11(d) of the Charter would be infringed if he was required to proceed before a jury because of the potential for jury bias against the defence of extreme intoxication and because of the risk that the jury would not understand the relevant legal instructions. In particular, the appellant filed affidavit evidence of media coverage indicating public antipathy toward the defence of extreme intoxication, together with the results of a survey in which respondents were asked whether they were opposed to intoxication being considered a factor in determining the guilt or innocence of a person charged with murder and, if so, whether they would have difficulty setting aside that view if instructed to do so by a trial judge.

[8] In addition, the appellant filed an affidavit from a University of Toronto psychology professor outlining the results of a 1997 study conducted in Ontario of prospective jurors' ability to understand a 30-minute videotaped legal instruction concerning self-defence and provocation. The psychology professor also cited jury simulation studies conducted at Simon Fraser University in British Columbia concerning juror comprehension of "insanity" and "mental disorder" instructions and U.S. social science research on juror comprehension. All of the studies revealed difficulties [page566] in juror comprehension of legal instructions. Further, apart from the psychology professor's study, all of the studies indicated that juror comprehension of legal instructions is not enhanced through the deliberative process.

[9] Finally, the psychology professor indicated he had reviewed copies of CRIMJI [See Note 4 at the end of the document] jury instructions concerning the law of intoxication. He opined that these instructions, like those on self-defence, would be very difficult for jurors to understand and properly apply.

[10] The appellant acknowledges that defence counsel at trial conceded that the concern relating to juror bias could be resolved by means of a challenge for cause, which the trial judge permitted. However, the appellant contends that the trial judge's reasons for rejecting the s. 24(1) Charter application reflect misapprehensions of the appellant's juror comprehension evidence and speculative conclusions relating to the ameliorative effects of juror deliberations that were contrary to the evidence.

[11] While we acknowledge that the appellant's juror comprehension evidence stood uncontradicted at trial, in our view, it was entitled to limited weight and the trial judge made no material errors in rejecting it. We note in particular that the psychology professor's opinion relating to intoxication instructions was not premised on the Daviault instructions that were applicable in this case. Moreover, the instructions that the psychology professor reviewed included a two-step specific intent instruction addressing capacity to form intent, which defence counsel later asked not be given, because of its confusing aspects.

[12] Further, the study conducted by the psychology professor was of limited value, as it did not involve persons who had heard evidence relating to the jury instructions to which they listened, nor did the study simulate the deliberation/question and answer process. The one other Canadian study and the U.S. studies relied on by the psychology professor were not before the court and therefore provided limited, if any, added value to his opinions. There was no indication that any of the studies dealt with the form of instructions that would be applicable in this case. Moreover, we agree with the trial judge's conclusion that differences in U.S. jury instruction procedures mandate considerable caution in applying the results of U.S. juror comprehension studies in Canada. [page567]

[13] Having considered and ruled on the constitutionality of s. 33.1 of the Criminal Code, the trial judge was in the best position to assess whether there was any realistic risk to the appellant's fair trial rights arising from the legal instructions that would be required in this case. In addition, it was open to him to take the steps necessary to ensure that the jury would understand those instructions. In our view, rather than being speculative, the trial judge's conclusions are well supported by Canadian jurisprudence [See Note 5 at the end of the document].

[14] We would not give effect to this ground of appeal.

[15] The second issue raised by the appellant is that the trial judge erred in instructing the jury on the application of reasonable doubt to the issue of the appellant's credibility. In particular, the appellant submits that the trial judge erred in failing to give an appropriate W. (D.) [See Note 6 at the end of the document] instruction taking account of the shifting burdens of proof involved in the intoxication issues. The appellant submits that the combined effect of this omission, and the trial judge's use of the phrase "[i]f you believe the accused, you must acquit him" when instructing the jury on the standard of proof applicable to the defence of extreme intoxication, may have led the jury to conclude that they were required to accept his evidence completely before they could acquit as opposed to simply being satisfied that it was more likely than not that his evidence was true.

[16] We reject this submission. The W. (D.) instruction relates to application of the standard of proof beyond a reasonable doubt. Here, that standard of proof did not arise in relation to the defence of extreme intoxication because the appellant bore the burden of proof on a balance of probabilities on that issue. In any event, failure to give a W. (D.) instruction does not amount to an error in law where the jury is not otherwise misled as to the application of the reasonable doubt standard to the appellant's credibility. Moreover, even if the trial judge was required to give a W. (D.) instruction relating to the issue of reasonable doubt, he did so in response to a question from the jury when he said the following:

In this case, the accused has testified that he was very intoxicated by drugs or alcohol. Even if you disbelieve the accused that he was so intoxicated that he was in a black-out state akin to automatism, his evidence of intoxication, along with that of Dr. Rosenbloom, may raise a reasonable doubt in your mind that he had the requisite intent for second degree murder in which case you would convict him only of manslaughter. Even if you are not left in doubt by the evidence of the accused as it may be supported by Dr. Rosenbloom, you must ask yourself whether on the basis of the evidence you do accept, you are [page568] convinced beyond a reasonable doubt by that evidence of the guilt of the accused for second degree murder. If you are not, you would again convict him only of manslaughter. The question of intoxication having been raised, the Crown must satisfy you beyond a reasonable doubt that the accused had the requisite intent, notwithstanding his drinking or consumption of drugs.

[17] Further, we are not persuaded that there is any realistic possibility that the trial judge's use of the word "believe" on one occasion within the single phrase identified by the appellant would have misled the jury concerning the application of the standard of proof to the defence of extreme intoxication. We note that the impugned phrase was bracketed by proper instructions concerning the standard of proof on a balance of probabilities:

As I stated earlier, in order to find the accused not guilty in this case, the onus is on [the appellant] to satisfy you on a balance of probabilities that when he stabbed Ms. Vickery he was in the state of black-out akin to automatism so that he was not aware that he stabbed Ms. Vickery. [The appellant] has testified that he was not aware of stabbing Ms. Vickery nor does he remember doing so. If you believe the accused, you must acquit him because he would have discharged the burden of proving on a balance of probabilities that when he was stabbing Ms. Vickery, he was unaware of doing so.

If, however, [the appellant], on all of the evidence, has not discharged the burden of proof on a balance of probabilities that he was unaware of stabbing Ms. Vickery he is, therefore, not entitled to an acquittal. The Crown must nevertheless prove each and every essential element of the offence of second-degree murder beyond a reasonable doubt.

(Emphasis added)

[18] Finally, near the end of his charge, the trial judge gave the following accurate statement of the standard of proof borne by the appellant:

Now, if after a consideration of my instructions to you and a review by you of all of the evidence, [the appellant] has convinced you on a balance probabilities that his consciousness was so impaired that he had no control of his actions of the time of the stabbing of Lynda Vickery, then you must acquit the accused because he has not committed culpable homicide but rather non-culpable homicide which I have stated is not a crime.

[19] In the end, we are not persuaded that there is any realistic possibility that the jury misunderstood the standard of proof on a balance of probabilities pertaining to the defence of extreme intoxication. Accordingly, we would not give effect to this ground of appeal.

[20] The third issue raised by the appellant is that the trial judge erred in failing to instruct the jury on the distinction between the level of intoxication required to permit acquittal and the level of intoxication necessary to reduce murder to manslaughter. In particular, the appellant contends that in instructing the jury on the defence of extreme intoxication the trial judge referred to the necessary level of intoxication by using the phrase [page569] "the defence of black-out akin to automatism induced by severe intoxication". However, when dealing subsequently with the subject of the effect of intoxication on the specific intent to kill, the trial judge simply referred the jury to the evidence he had previously reviewed concerning alcohol consumption and counsel's submissions concerning the defence of extreme intoxication, and never explicitly told the jury that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism. W hile defence counsel at trial objected to this omission, the trial judge did not recharge the jury.

[21] Further, the appellant submits that when asked by the jury to "clarify the differences between manslaughter and second degree murder with particular attention to the role of alcohol and intent", the trial judge did not point out that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism. Rather, the trial judge framed his answer in terms of a W. (D.) instruction, thereby potentially creating the impression that the difference between a full acquittal and reducing murder to manslaughter was nothing more than an issue of the burden of proof.

[22] We reject the appellant's submissions. Although we agree with the Crown that there is no specific level of intoxication associated with either the defence of extreme intoxication or negating the intent for second degree murder, we also consider that it may have been preferable for the trial judge to have explicitly instructed the jury that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism. However, we are satisfied that this instruction was implicit in the trial judge's very full explanation of the relevance of evidence of intoxication to the level of intent required for murder. The distinction, in our view, would have been apparent to the jury, particularly in view of comments such as the following that the trial judge made to the jury:

In particular, however, on the intent required for murder, if you find that the accused was not in a state of black-out akin to automatism, [defence counsel at trial] emphasized the evidence of Dr. Rosenbloom, whose calculations indicated that the accused would have been extremely intoxicated and that his ability to appreciate the nature and consequences of his actions would have been seriously impaired so that there must be a reasonable doubt that the accused had the requisite intent for murder.

(Emphasis added)

[23] Reading the instructions as a whole, it would have been obvious to the jury that even if they rejected the appellants' evidence that he was in a state of blackout akin to automatism, they were still required to determine whether he was sufficiently [page570] intoxicated to negate the intent for murder. Accordingly, we would not give effect to this ground of appeal.

[24] Based on the foregoing reasons, we would dismiss the conviction appeal. As we did not call on the respondent to address the appellant's first two grounds of appeal, the respondent did not pursue its additional issue raised on this appeal concerning the constitutionality of s. 33.1 the Criminal Code. Accordingly, we did not call on either the intervenor or the appellant to address that issue, as it is not relevant to our disposition of this appeal. Nothing in these reasons should be read as approving or disapproving of the trial judge's ruling on the constitutionality of s. 33.1.

The Sentence Appeal

[25] Turning to the sentence appeal, the appellant submits that, in increasing the period of parole ineligibility from ten years to 12 years, the trial judge paid inadequate heed to the relevant Gladue [See Note 7 at the end of the document] factors that applied in this case. In particular, the appellant contends that the trial judge increased the period of parole ineligibility based on a finding that the appellant "has chosen to drink", when the evidence revealed that the appellant had been driven to that choice through a combination of Gladue factors that were either of systemic origin or unique to the appellant.

[26] As part of its response, the Crown contends, as it did at trial, that although the appellant is aboriginal, he is not entitled to any lessening of his parole eligibility as a result. The Crown submits that Gladue confirms that offenders like the appellant, who commit serious and violent crimes, will likely receive a sentence that is the same, whether they are aboriginal or non-aboriginal. Further, the Crown contends that Gladue has no application where the offender receives a life sentence.

[27] We do not read Gladue as saying that there are cases in which the Gladue principles will not apply. While we agree that there will be cases in which the principles and objectives expressed in Gladue will not weigh as heavily as other sentencing objectives, and that, in those cases, it may be likely that "the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same" [See Note 8 at the end of the document], the Gladue principles remain applicable in all cases where an aboriginal person is the offender.

[28] We observe that neither Gladue, nor s. 718.2(e) of the Criminal Code, mandate better treatment for aboriginal people when [page571] they are being sentenced for a criminal offence; rather, Gladue directs sentencing courts to discretely consider the serious and unique social issues pertaining to aboriginal people. However, there is no reason not to consider the Gladue principles when deciding parole ineligibility. Accordingly, while there is no doubt that the appellant was convicted of an extremely serious offence, we do not agree that this removes the requirement to consider the Gladue principles when determining the period of parole ineligibility.

[29] On our review of his reasons for sentence, the trial judge gave careful consideration to the Gladue principles and to the provisions of s. 718.2(e) of the Criminal Code. Further, we specifically reject the appellant's submission that the trial judge increased the period of parole ineligibility on the basis of a limited finding that the appellant "has chosen to drink". Read fairly, the trial judge's reasons demonstrate that he increased the period of parole ineligibility based on a variety of considerations, including the fact that, in making their individual recommendations for parole ineligibility (eight jurors recommended the minimum ten-year period of parole ineligibility while four jurors made no recommendation), the jury was not aware of the appellant's criminal record for crimes of violence nor of the compelling aspects of the victim impact statement.

[30] In addition, the trial judge considered the brutality of the murder, the fact that the victim was defenceless, the callous nature of the appellant's conduct following the offence, the appellant's presence of mind in hiding the murder weapon, the need to protect society against violent crime fuelled by alcohol and the appellant's previous lack of success in attempting to overcome his alcoholism. We see no error either in the sentencing judge's application of Gladue or in his conclusions concerning the appropriate period of parole ineligibility. Accordingly, we would grant leave to appeal sentence but dismiss the sentence appeal.

Appeal dismissed.

Notes

Note 1: R.S.C. 1985, c. C-46.

Note 2: 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77.

Note 3: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

Note 4: Gerry A. Ferguson & The Hon. Mr. Justice John C. Bouck, CRIMJI Canadian Criminal Jury Instructions, 3rd ed., looseleaf (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, 1997).

Note 5: See for example R. v. Corbett, 1998 831 (SCC), [1988] 1 S.C.R. 670, [1998] S.C.J. No. 40.

Note 6: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397.

Note 7: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19.

Note 8: Gladue, supra, at paras. 78-79.