During what was originally scheduled as a sentencing hearing in Nova Scotia Supreme Court Tuesday, defence lawyer Darlene MacRury indicated her intention to make that motion. She said she isn’t seeking to strike down the provision that prevents a conditional sentence order — house arrest — from being imposed in cases involving theft over $5,000. However, she will argue that, in Ruth Gail Canzio’s case, not allowing consideration of such a sentence violates her right to be protected from cruel and unusual punishment and her right to life, liberty and freedom.
Canzio, 70, of Bendix Street, was found guilty in May of stealing from her father.
Canzio committed the offence between Oct. 24-29, 2013, by taking the money from her father's safety deposit box.
In an interview, Crown attorney Glen Gouthro explained that a conditional sentence is not available under federal legislation that was amended in 2012. House arrest can be ordered when dealing with sentences involving terms under two years less a day, with other conditions also having to be met.
“In 2012 they amended it to exclude certain crimes, theft over $5,000 was excluded,” Gouthro said. “This crime was committed after that exception was legislated. For Miss Canzio now, without this application, sentencing could range from probation or custody in an institution.”
Because MacRury isn’t seeking to strike down the legislation, there is no need to involve the federal attorney general in the application, Gouthro said.
There is no minimum sentence for the charge. The maximum sentence that can be imposed is 10 years incarceration.
Supreme Court Justice Patrick Murray presided over a six-day trial in April. In finding guilt, Murray said he did not believe Canzio’s testimony and he rejected a defence suggestion that her brother was actually the guilty party.
Although Canzio's father, Robert Allen Sr., died in February 2014, his videotaped evidence was admitted at the trial. Also testifying during the trial was Canzio's brother, Robert Allen Jr.
In presenting the Crown case, Gouthro had shown that it was Canzio who made arrangements to have the safety deposit box drilled and then closed out the account.
She did have signing authority on her father's account.
Allen Sr. had a habit of removing money from his account and placing it in a safety deposit box which is against banking rules.
At the time of his video statement taken by Cape Breton Regional Police, the father had received a terminal cancer diagnosis. He admitted to not recalling allowing Canzio to have access to the box.
Murray said while Canzio admitted to having the box opened, she claimed it was to retrieve personal papers concerning her home.
MacRury had argued the police investigation focused solely on her client without giving proper consideration to another potential suspect, Robert Allen Jr.
Further, MacRury argued that the father's testimony should not be relied on because of numerous memory lapses in describing certain events that only raised more questions than provided answers.
Canzio testified that in opening the box, there was no money to be found.
The matter has been adjourned until Sept. 25, when the Crown and defence will present their arguments. Canzio continues her release.