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SENTENCING - Procedure - Jurisdiction to impose sentence

Monday, June 26, 2017 @ 11:49 AM  

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Appeal by the offender, Buyck, from a sentence for sexual assault. The offender sexually assaulted his girlfriend's daughter by sexually touching her while she was unconscious from intoxication. The underlying proceedings involved 31 court appearances over two years. Prior to sentencing, the offender was assisted by three lawyers and amicus curiae. The offender initially sought a jury trial after waiving a preliminary inquiry. Approximately eight months later, the offender re-elected trial by judge alone and entered a guilty plea. An adjournment was granted to prepare pre-sentence and Gladue reports. Hours later, the offender advised his lawyer that he wanted the fact that he was in a relationship with the complainant to be added to the agreed statement of facts. A series of adjournments ensued, following which counsel withdrew and indicated the offender sought to strike his guilty plea. Five months later, the offender abandoned the plea application. The court was advised that the disagreement over the facts did not involve essential elements of the offence. Upon continuation six months later, the offender indicated he did not admit any of the facts in support of his plea. The offender advised he sought to withdraw his plea due to the belief he would be sentenced by way of a sentencing circle. The judge denied the application to strike the plea, appointed amicus curiae, and imposed an 18-month custodial sentence plus probation. The offender appealed.

HELD: Appeal allowed. The offender's application to withdraw his plea received a fair hearing and was appropriately denied. His valid guilty plea to sexual assault constituted an admission of the essential elements of the offence. However, the trial judge erred in proceeding with the sentencing hearing without the underlying facts being admitted by the accused or proven by the Crown. The appropriate remedy was the appointment of a judge of the Territorial Court, other than the sentencing judge, as a special commissioner to conduct a Gardiner hearing and report back to the Court of Appeal all of the facts proven.

R. v. Buyck, [2017] Y.J. No. 359, Yukon Territory Court of Appeal, R.J. Bauman C.J.B.C., I.T. Donald and Tulloch JJ.A., June 20, 2017. Digest No. TLD-June262017001