J. 1999 SH 155064A IN THE SUPREME COURT OF NOVA SCOTIA v. EVERETT ROGER STUCKLESS SENTENCE BREACH OF PROBATION HEARD: before the Honourable Chief Justice Joseph P. Kennedy, Supreme Court of Nova Scotia, Halifax, Nova Scotia, August 13, 1999 DECISION: August 13, 1999 WRITTEN RELEASE: October 14, 1999 COUNSEL: Robert McCarroll for the Crown Donald L. Presse, for the defence Kennedy, C.J.: (Orally) am going to accept the recommendation of both the Crown and Defence in relation to his appeal. I am doing so on the basis that when I read the decision of Judge Williams, actually, his decision is ambiguous to the extent that, although he appears to believe that the Tan case requires that a second conditional discharge not be made available in relation to the matter arising out of similar circumstances in relation to a prior discharge. Although he believes the Tan case dictates that situation, he nevertheless, during the course of that decision, appears to do the requisite test in determining the use of conditional discharge, so there is degree of ambiguity in relation to the matter. What is clear though, to me, is that he starts the process by indicating to counsel that he believes that he is constrained and finishes his decision with a reference to the Tan case at page 13 of the abstract that I have, where I note and I state that R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 C.C.C. (2d)184 (B.C.C.A.) stands for the proposition that an accused may not receive a discharge where he has already received a discharge for another offence. In fact Tan does not stand for that proposition, it is not nearly so rigid and that causes me the concern that have, that the learned Provincial Court Judge misconstrued the situation at that time. Having come to that conclusion, am going to overturn the determination of that learned judge. I am going to accept the joint recommendation of counsel that was made before him, and is again made before me, that there be a conditional discharge, three years probation, absolutely no contact direct or indirect with the named victim. It was the nature of the contact and the other circumstances surrounding the contact in this specific that allows for further discharge. am satisfied that can substitute the sentence in relation to this specific and it seems to me to be the reasonable way to proceed. Would you stand please Mr. Stuckless. Mr. Stuckless, wanted you here, particularly, because, want to make very sure that you understand why you got into this situation today, why you got into this mess. As you were dialing that number you should have been contemplating the mess that you were creating, but more directly and importantly at this stage in the process, want you to understand and to make sure that you do not misunderstand, that you will not violate the order that am about to make, with impunity. Should there be further contact of any nature on your part with the woman involved, you will not have to worry about discharge, it will be quite simply, question of how long period of time you are going to be incarcerated. want you to know that so you will not jeopardize your future in that respect, you will not misinterpret the position of this Court. know you won’t. This is another opportunity, Mr. Stuckless, to do the right thing and to get yourself into good situation, don’t blow it. You may be seated please. am going to direct an order as indicated. Chief Justice Joseph P. Kennedy Halifax, Nova Scotia
At issue in this sentencing appeal for breach of probation was whether or not a person can receive a second conditional discharge in relation to a matter arising out of similar circumstances in relation to a prior discharge. allowing the appeal, sentencing the offender to three years probation with conditions, that an offender may receive a discharge where he had already received one for another offence.