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SENTENCING - Second degree murder - Parole ineligibility - Victim fine surcharge

Monday, December 07, 2020 @ 9:15 AM  

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Appeal by the Crown from a sentence imposed for second degree murder. In sentencing the respondent, the judge directed a credit for pre-sentence custody and imposed a victim fine surcharge. The Crown argued the trial judge lacked jurisdiction to prescribe any credit for remand time.

HELD: Appeal allowed. The trial judge lacked jurisdiction to grant credit for time on remand against the sentence of life imprisonment or any credit against the period of parole ineligibility he set at 14 years. For second degree murder, the Criminal Code instructed the trial judge to sentence the offender to life imprisonment without parole eligibility until the offender served at least 10 years of the sentence. The trial judge’s discretion in imposing sentence for second degree murder was limited to setting the period of parole ineligibility. The task of dealing with remand time in accordance with s. 746(a) was with the Parole Board. Section 746(a) did not vest in the sentencing court jurisdiction to reduce, by any remand time, the parole ineligibility period it set based on the statutorily prescribed considerations. The victim surcharge fine was unsustainable on constitutional grounds and was also struck. Sentence: Life imprisonment; 14-year parole ineligibility; DNA order; 15-year firearms prohibition; forfeiture.

R. v. McKenna, [2020] N.B.J. No. 260, New Brunswick Court of Appeal, J.E. Drapeau, B.V. Green and C.A. LeBlond JJ.A., November 5, 2020. Digest No. TLD-December72020001