



COURT OF
APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Amyotte,









2005 BCCA 12




Date: 20050104





Docket: CA032163

Between:

Regina

Respondent



And

Gordon
Brent Amyotte

Appellant














Before:



The Honourable Mr.
  Justice Donald





The Honourable Madam
  Justice Levine





The Honourable Mr.
  Justice Smith




Oral Reasons for Judgment




K.L. Moss



Counsel for the Appellant





J. Duncan



Counsel for the Respondent





Place and Date:



Vancouver, British Columbia





January 4, 2005








[1]

LEVINE J.A.:
The issue on this sentence appeal is the
validity of probation orders.

[2]

The appellant, Gordon
Brent Amyotte, was sentenced in Penticton, British Columbia on August 15, 2002
to two years in prison on a conviction for possession of stolen property and 30
days in prison, to run concurrently, for possession of cocaine.  He was also
sentenced to two years of probation following each sentence.

[3]

There is no dispute
about the validity of the probation orders following the Penticton sentences.

[4]

The issue of the
validity of the probation orders arose when the appellant was sentenced in
Kamloops, British Columbia on March 24, 2004 to a further 20 months in prison
on a conviction for theft, to be served concurrently with the time remaining on
the Penticton sentences.

[5]

A probation order is
authorized by s. 731(1)(b) of the
Criminal Code
where an offender
is sentenced "to imprisonment for a term not exceeding two years".

[6]

The
Corrections
and Conditional Release Act
, S.C. 1992, c. 20, provides in s. 139(1):

Where a person who is subject to a sentence that has not expired
receives an additional sentence, the person is, for the purposes of the
Criminal
Code
, the
Prisons and Reformatories Act
and this Act, deemed to have
been sentenced to one sentence commencing at the beginning of the first of
those sentences to be served and ending on the expiration of the last of them
to be served.

[7]

This Court decided in
R.
v. Hackett
(1986), 30 C.C.C. (3d) 159 (B.C.C.A.), that a term of
probation following a sentence of two years less a day was invalid when a
concurrent three year sentence was imposed at the same time.

[8]

In
R. v. Miller
(1987), 36 C.C.C. (3d) 100 (Ont. C.A.), the Ontario Court of Appeal held that a
probation order imposed following a sentence of two years less a day in prison
became invalid when subsequent consecutive sentences were imposed so that the
total sentence was in excess of two years.  This Court, citing s. 731(1)(b) of
the
Code
and
Hackett
, held a probation order to be
invalid on facts similar to
Miller
in
R. v. Shankaran
(1996), 71 B.C.A.C. 239.

[9]

The facts of this case
are different from the other cases, in that the subsequent Kamloops sentence
was made concurrent, not consecutive, to the previous Penticton sentences being
served.  However, the appellant had already served 19 months of the Penticton
sentences when he was sentenced to the additional 20 months to be served
concurrently.  The Penticton and Kamloops sentences would overlap by only five
months (March to August 2004).  Thus, the total sentence exceeds two years.

[10]

This is confirmed by a
calculation made by the Sentence Management Associate of Mountain
Institution, provided by appellants counsel.  According to the calculation,
the appellants sentence is a total of three years, four months and 13 days
(1,232 days) from July 10, 2002 (taking into account sentences imposed before
the Penticton sentences).

[11]

In both
Hackett
and
Miller
, the Courts held that the intention of Parliament was
to limit the imposition of probation orders to circumstances where probation
would commence not more than two years from the time of sentencing.  Where that
cannot occur, because the total of the sentences imposed on the offender exceeds
two years, the provisions of the
Code
cannot be met.

[12]

That is the case here.  Mr.
Amyotte will, at the conclusion of the Kamloops sentence, have been in prison
more than two years.  The effect of that is that the probation orders, which
were valid when imposed in August 2002, became invalid when the Kamloops
sentence was imposed in March 2004.

[13]

The Crown concedes that
the probation orders are invalid and should be quashed.

[14]

I would grant leave to
appeal and allow the appeal by quashing the probation orders imposed in
Penticton on August 15, 2002.

[15]

DONALD J.A.:
I agree.

[16]

SMITH J.A.:
I agree.

[17]

DONALD J.A.:
The appeal is allowed.  The probation order
is set aside.

The Honourable Madam Justice Levine


