Appeal court cites judge’s legal errors in quashing conviction
A Glace Bay’s man conviction and sentence in 2017 were tainted by legal errors stemming from the trial judge, the Nova Scotia Court of Appeal has ruled.
As a result, the court quashed the conviction on a forcible entry charge and reduced the sentence of four years to three years on a charge of assault with a weapon.
In quashing the forcible entry charge, the appeal court ordered a new trial, “should the Crown wish to pursue one.”
James Russell Mauger, 32, was sentenced in September 2017 to 4 ½ years in a federal prison on charges of assault with a weapon (a vehicle), forcible entry, assault, and breach of probation.
Defence lawyer Alan Stanwick had recommended a sentence of one year while prosecutor Steve Drake recommended a sentence of three to five years.
Provincial court Judge Alain Bégin issued a stay on the dangerous driving charge after the trial and imposed the federal sentence.
In the unanimous appeal court decision, written by Justice Duncan Beveridge, the court said the forcible entry conviction should not be allowed to stand, explaining there was no evidence Mauger interfered with anyone’s peaceful possession of the apartment.
Mauger admitted at trial he went to a Bruce Street apartment to buy marijuana for a friend. After knocking on the apartment door of the alleged dealer, Mauger said he kicked the door which resulted in a response.
The dealer initially told police he opened the door for Mauger but later testified to having no memory of events because, at the time, he was very high on drugs.
“Further, even if the kicks caused the door to open, there was no direct evidence that the appellant (Mauger) interfered in the peaceable possession of anyone in actual possession of the property at the time of the forced entry,” said Beveridge.
In addressing the final sentence imposed, the court ruled Bégin committed errors in principle that impacted the length of time to be served.
“With respect, the trial judge made a number of comments in the course of passing sentence that are troublesome and arguably reflect legal error,” said Beveridge, adding the comments were in reference to Mauger’s criminal record and his alleged lack of remorse.
Although Mauger’s record does not indicate prior violent offences, Bégin said he did not believe the offence was out of character and that the record was an aggravating factor when it came to sentencing.
“A prior record can speak to the need for greater emphasis on specific deterrence or diminish the importance of rehabilitation but, on its own, it is not an aggravating factor leading to a sentence that is untethered to the purposes and principles of sentence,” said the appeal court.
Further, the appeal court decision stated that Bégin’s focus on an unrelated 10-year-old criminal record as aggravating was unjustified and contrary to well-established norms.
When it came to remorse, Bégin said Mauger’s apparent lack of remorse was important to the court.
“It is well accepted that a genuine expression of remorse can mitigate sentence but, except in limited circumstances, its absence does not act to increase sentence,” said Beveridge.
While Mauger left the apartment without any drugs, he did become involved in a serious altercation with another man at the apartment that spilled out into the parking lot.
Victim Robert Morrison suffered serious injury when Mauger backed his van into Morrison, crushing 18 bones in the man’s pelvic region.