The Court held that the Gilmore ceiling principle applies even where a retrial proceeds on a different basis of liability (here, joint criminal enterprise rather than accessory before the fact), rejecting the Crown's submission that the ceiling cannot operate where the CCA found the original offence was not known to law; the Court reasoned it would be unfair for the Crown to take advantage of having conducted the first trial on an incorrect basis to seek a higher sentence. The Court assessed constructive murder as below mid-range seriousness where the offender was not present at the robbery, did not discharge the firearm, had no intention anyone would be shot, and was not satisfied he foresaw the gun being discharged — contrasting with the first sentencing judge's finding of foresight. The resulting sentence of 12 years (NPP 9 years) was lower than the original 16 years (NPP 10 years), reflecting substantial demonstrated rehabilitation, delay, quasi-custody credit, and the changed factual findings.
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