Court of Appeal

Knutson v. H.M.T.Q., 2001 NWTCA 3
Date:     2001 06 08
Docket:

IN THE COURT OF APPEAL OF THE NORTHWEST TERRITORIES



THE COURT:

The Honourable Madam Justice C.M. Conrad
The Honourable Justice V.A. Schuler
The Honourable Mr. Justice R.L. Berger



BETWEEN:
DOUGLAS KNUTSON
Appellant

- and -


HER MAJESTY THE QUEEN

Respondent

APPEAL FROM THE SENTENCE OF
THE HONOURABLE JUDGE B.A. BRUSER



UNANIMOUS DECISION
DELIVERED ORALLY FROM THE BENCH



COUNSEL: S. Tarrabain for the Appellant
B. Schmaltz for the Respondent


SCHULER, J.A. (for the Court):


[1] The appellant appeals from a sentence of one year imprisonment imposed on him after the sentencing judge rejected a joint submission for three months.


[2]  Although the Crown in putting the facts before the sentencing judge did not take a position on the scope of the appellant s drug activity, the sentencing judge found as follows:

This offender is not a street-level trafficker in marijuana.   He is more than that.  He is a distributor.  His home is, if not a factory, a distributorship or a wholesale warehouse for the sale of marijuana.



[3] We are satisfied that the judge s rejection of the joint submission was driven largely by this characterization of the appellant s activity on which he pronounced  before giving counsel the opportunity to explain the basis for the joint submission.  That opportunity was not, we find, given in a timely fashion and constitutes reversible error.  Had the sentencing judge made inquiries about the joint submission in a timely fashion, it is not clear that he would have arrived at this characterization particularly since the facts put before him were equivocal.


[4] We are of the view that the joint submission of three months, which was effectively a sentence of nine months after taking into account the remand time, was fit on the facts as set out by the Crown and admitted by the appellant and was within the range.  The Crown did not before us resile from its position taken at the sentencing that three months was a proper sentence.




[5] Accordingly, we grant leave to appeal and we allow the appeal.  As the appellant has been serving the sentence imposed since February 14, 2001, we vary the sentence to one of time served.

APPEAL HEARD on APRIL 24, 2001

MEMORANDUM FILED at
YELLOWKNIFE, Northwest Territories
this 8th day of June 2001


CONRAD, J.A.




SCHULER, J.A.




BERGER, J.A.

















AP   2001000002


IN THE COURT OF APPEAL
OF THE NORTHWEST TERRITORIES



BETWEEN:

DOUGLAS KNUTSON

Appellant

- and -



HER MAJESTY THE QUEEN

Respondent



MEMORANDUM OF JUDGMENT