R. v. Loveys, 2020 NLSC 13

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Loveys , 2020 NLSC 13 Date : January 30, 2020 Docket : 201701G7551 Her Majesty The Queen v. David Loveys Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 16, 2020

Summary: The Offender was sentenced to 26 months’ imprisonment for committing the offences of aggravated assault, and dangerous driving causing bodily harm. He had deliberately struck two victims with his car. A driving prohibition of four years was also imposed on the Offender, less time served on the current driving prohibition which had been imposed pursuant to judicial interim release orders. Appearances: Jude Hall Appearing on behalf of the Crown

Mark Gruchy Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Phillips, (ON SC),[2009] O.J. No. 400 (Ont. S.C.J.); R. v. Clarke, 2006 NLTD 72; R. v. Prince, (SCC), [1986] 2 S.C.R. 480; R. v. Beatty,2008 SCC 5 , [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60; R. v. Brown, 2017 ABPC 154; R. v.Saunders, 2018 NLSC 227; R. v. Squires, 2012 NLCA 20; R. v. Cloutier, 2017 ABPC; R. v. Antonelli, 2008 QCCA 1573; R. v. Clarke,2006 NLCA 52; R. v. McConaghie, 2017 ONCA 306; R. v. Chisholm, 1998 NSCA 155; R. v.

Dingwall (1994), (NSSC), 130 N.S.R. (2d) 170 (NSSC); R. v. Precup, 2015 ONSC 2112; R. v. Gosh, 2006 ABPC 153; R. v. O’Keefe, 2011 NLCA 41; R. v.Cluney, 2013 NLCA 46; R. v. Proulx, 2000 SCC 5; R. v. Synard, 2006 NLTD 101; R. v. Bennett, [2007] N.J. No. 132 (NL Prov. Ct.); R.v. Tapper, 2009 NLTD 97; R. v. Hutchings, 2012 NLCA 2; R. v. Lacasse, 2015 SCC 64. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985 c. C-46. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] This is the sentencing decision for David Loveys. Mr.

Loveys entered pleas of guilty to four offences: two counts ofaggravated assault, and two counts of dangerous operation of a motor vehicle. The offences occurred on September 24, 2016 in St.John’s, Newfoundland and Labrador when Mr. Loveys used his car as a weapon, deliberately striking and injuring two victims. [2] As a result of this incident, Mr. Loveys had initially been charged with three counts of attempted murder, three counts ofdangerous operation of a motor vehicle causing bodily harm, and three counts of uttering threats, as described in an indictment datedNovember 16, 2017.

On October 2, 2019 the first three counts of the indictment were amended, and counts 1 and 3 of the amendedindictment then stated as follows: David Loveys stands charged that: COUNT 1 ON OR ABOUT the 24th day of September, 2016, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfullyattempt to murder Terri Emily Harris by assaulting her with a motor vehicle, thereby endangering her life and committing an offencecontrary to Section 239(1)(

b) of the Criminal Code. COUNT 3 ON OR ABOUT the 24th day of September, 2016, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfullyattempt to murder Neil Mixer by assaulting him with a motor vehicle, thereby endangering his life and committing an offence contrary toSection 239(1)(

b) of the Criminal Code. [3] On October 4, 2019, with respect to count 1 Mr. Loveys entered a plea of guilty to the lesser included offence of aggravatedassault endangering the life of Terri Emily Harris; and with respect to count 3, he also entered a plea of guilty to the lesser includedoffence of aggravated assault endangering the life of Neil Mixer. [4] On the same date, Mr. Loveys further entered a plea of guilty to count 4 of the indictment, being dangerous operation of amotor vehicle causing bodily harm to Terri Emily Harris; and he further entered a plea of guilty to count 6 of the indictment, beingdangerous operation of a motor vehicle causing bodily harm to Neil Mixer.

[ 5 ] Counts 4 and 6 are described in the indictment, as follows: COUNT 4 ON OR ABOUT the 24th day of September, 2016, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfully operate a motor vehicle, in a manner that was dangerous to the public having regard to all circumstances including the nature, condition, and use of such place, and the amount of traffic that at the time was or might reasonably be expected to be on such place, and did thereby cause bodily harm to Terri Emily Harris thereby committing an offence contrary to Section 249(1) (a)- 249(3) of the Criminal Code .

COUNT 6 ON OR ABOUT the 24th day of September, 2016, at or near St.

John’s, in the Province of Newfoundland and Labrador, did unlawfully operate a motor vehicle, in a manner that was dangerous to the public having regard to all circumstances including the nature, condition, and use of such place, and the amount of traffic that at the time was or might reasonably be expected to be on such place, and did thereby cause bodily harm to Neil Mixer thereby committing an offence contrary to Section 249(1) (a)- 249(3) of the Criminal Code . [ 6 ] An agreed statement of facts was submitted to the Court on October 4, 2019, and read into the record at the sentencing hearing on January 16, 2020.

Mr. Loveys was found guilty of the four above described offences, and the Crown withdrew the remaining charges. A fit and appropriate sentence is to be determined. CIRCUMSTANCES OF THE OFFENCES [ 7 ] The agreed facts detailed the circumstances of the offences as follows: “1. Mr. David Loveys and Ms. Terri Harris (DOB 1998/11/21) had been in a romantic relationship, however that relationship ended in early September 2016. 2. On or about September 24, 2016 Mr. Loveys requested a meeting with Ms. Harris so that he could return some of her personal items. 3. Ms. Harris agreed to meet Mr.

Loveys that evening at the bottom of Roosevelt Avenue in Mt. Pearl, NL for that purpose; she drove to the meeting site in her car and brought along her friend Mr. Neil Mixer (DOB 1998/09/13) as a passenger. 4. The meeting occurred shortly before 9:00pm, at which after passing some personal items through the windows of their respective vehicles Mr. Loveys then challenged Mr. Mixer to get out of Ms. Harris’ car and to punch him (Mr. Loveys) in the face. 5. Mr. Mixer declined and Ms. Harris drove away from the meeting place. 6. Mr. Loveys followed Ms. Harris’ car and drove to a location known to Mr.

Loveys to be a residence in which Mr. Mixer’s friend Mr. Dylan Hollett resided. The address is 3 Bartlett Place, St. John’s. NL and Mr. Loveys arrived there just prior to Ms. Harris and Mr. Mixer. 7. Upon arrival of Ms. Harris and Mr. Mixer, Mr. Loveys got out of his car and asked Ms. Harris to come and speak with him which she refused to do; at the same time Mr. Mixer went into the residence at 3 Bartlett Place and returned outside with his friend Mr. Hollett. 8. Once Mr. Mixer and Mr. Hollett came outside, they demanded that Mr. Loveys return to his car and leave the area. Mr.

Loveys engaged in a verbal altercation with Mr. Mixer and Mr. Hollett in the front of the residence at 3 Bartlett Place while Ms. Harris attempted to mediate and de-escalate the situation. 9. During this verbal altercation, Mr. Loveys continued to ask Ms. Harris to speak with him and handed her a ring. Ms. Harris took the ring from Mr. Loveys and threw it into or near the street on Bartlett Place. This gesture by Ms. Harris made Mr. Loveys, whilst still

in the middle of the verbal altercation with Mr. Hollett and Mr. Mixer, particularly angry. 10. Mr. Loveys returned to his car and punched it before getting into the vehicle. He then entered the vehicle and drove it up Bartlett Place, turned around and drove back to the front of the residence and exited the vehicle again. The verbal altercation between Mr. Loveys, Mr. Mixer and Mr. Hollett continued in front of the residence again, with Ms. Harris standing there attempting to get Mr. Loveys to leave the area. 11. Mr. Loveys once again got in his car, drove up Bartlett Place towards Forbes Street.

At this time Ms Harris, Mr. Mixer and Mr. Hollett, turned their backs towards the street and walked over the front lawn towards the door of the residence at 3 Bartlett Place. 12. Mr. Loveys prior to reaching Forbes Street turned his vehicle around and started driving back in the direction of the residence at 3 Bartlett Place. As he drove down Bartlett Place he steered his vehicle away from the roadway and onto the sidewalk in front of 3 Bartlett Place, driving up and over the sidewalk, across the lawn of 3 Bartlett Place striking Ms. Harris and Mr. Mixer with the front of his vehicle. Mr.

Hollett managed to jump out of the way of the vehicle and was only grazed by it as it struck Ms. Harris and Mr. Mixer directly. Ms. Harris was knocked down, while Mr. Mixer was hit by the front of the vehicle on his upper body and was thrown a number of feet away from the front of the vehicle. 13. Upon striking Ms. Harris and Mr. Mixer, the vehicle remained in motion and immediately collided with and bounced off a parked utility van and fence that was parked in an adjacent driveway next to the lawn of 3 Bartlett Place. Mr.

Loveys then put the vehicle in reverse, at which time the rear of the vehicle impacted with house at 3 Bartlett Place, became stuck on the structure of the house, where it remained until police arrived on scene. 14. Subsequent electronic analysis from the vehicle’s on-board crash retrieval data system, mechanical evaluation of the car, and physical evidence from the scene revealed the following: a. Mr. Loveys turned the car from the roadway of Bartlett Place and onto the side walk in front of 3 Bartlett Place. b. After turning onto the sidewalk, and up onto the lawn of 3 Bartlett Place, Mr.

Loveys did not try to make any further turns away from the track he was on, or attempt to brake the vehicle while on this track. c. The vehicle was travelling at approximately 36km/hr upon colliding with the utility van, just following Ms. Harris and Mr. Mixer being struck by the vehicle. d. There were no mechanical problems with the vehicle’s steering or braking systems. 15. Upon the vehicle being reversed into and becoming stuck on the house at 3 Bartlett Place, Mr. Loveys exited the vehicle, approached Ms. Harris as she was tending to Mr.

Mixer who was lying unconscious on the driveway and said to her that he should just finish Mr. Mixer off and kill him as he was almost already dead anyway. Mr. Loveys remained at the scene as first responders began to arrive. He indicated to the police he waited for the police to arrive, and in his formal interview noted he had spoken to a passer by who he assumed had called the police. He also referred to observing medical personnel arrive and speaking to “ two nice firemen ” as he was waiting for the police. 16. Cst.

Andrew Smith of the Royal Newfoundland Constabulary (RNC) was the first police officer on the scene at approximately 9:00pm. As soon as Cst. Smith arrived and exited his police car, Mr. Loveys approached and told Constable Smith he had to be arrested, saying he needed to be handcuffed as well. He stated twice to the officer that he had just tried to run over three people and he knew that he struck at least two of them. He told the officers what car he was driving. He was insistent he be arrested. Mr.

Loveys was placed under arrest, read his rights and police caution, and then transported to the RNC headquarters for a formal interview. 17. Once he arrived at the RNC headquarters while being conveyed to the interview room by Cst Smith, Mr. Loveys uttered “I’m sorry Mom”, “I’m sorry Terri”. 18. Prior to his formal interview and while still in the custody of Cst Smith, Mr. Loveys without being questioned as to the evening’s events, told Cst Smith about the collision and confirmed that he had decided to do a U-turn on Bartlett Place and tried to run over the people on the front lawn of 3 Bartlett Place.

19. During the formal police interview Mr. Loveys was cooperative with police, and described for them how upon Ms. Harristhrowing his ring away he became very angry. When asked by police what made him turn his car around after he drove away fromBartlett Place, he stated he did not know why but that he could hear Mr. Mixer and Mr. Hollett still yelling at him, and that he thenattempted to run people over. He stated he was thinking: “Stop yelling at me (crying) I don’t like to be yelled at. Oh god”. 20. During the course of the interview Mr.

Loveys also made the following statements: ““Uh I-I-I love the girl I’d never, hu- why didI do that” (crying) I’m sorry”, “I can’t believe I did that (crying),” and “I want help, I shoulda got it in the beginning… a few weeks agowhen I was in the Waterford but I didn’t…cause I thought I was okay (crying) of my god I’m so sorry”. 21. He was persistently apologetic in his statement and was frequently crying. 22. Mr. Loveys explained he had been persistently depressed and suicidal in the time leading up to this event in conjunction withexplaining he had been in the Waterford recently.

He also explained he had serious physical health problems, specifically a conditionthat required him to have an ileostomy that had played a role in his depression. He noted he had been bed ridden for five months up untiltwo weeks before this happened and explained he and Ms. Harris had broken up shortly after he had ceased to be bedridden. 23. Following the collision at 3 Bartlett Place, Ms. Harris who had remained conscious during this incident was transported tohospital, diagnosed and treated for a broken arm. 24. Mr.

Mixer who had been thrown several feet from the vehicle and lay unconscious and bleeding on the driveway adjacent to 3Bartlett Place was transported to, diagnosed and treated in hospital for a concussion, multiple fractured facial bones and lacerations to theface.” [8] Based on the guilty pleas, the elements of the offences, the agreed facts and the submissions of Counsel, findings of guilt weremade by the Court with respect to the two counts of aggravated assault, and the two counts of dangerous driving causing bodily harm. THE KIENAPPLE PRINCIPLE [9] Defence Counsel submitted that the principle in R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729 applied, and thatthe Court should therefore stay the two charges of dangerous driving causing bodily harm.

Consequently, convictions were entered onthe two counts of aggravated assault; and Counsel made submissions respecting the application of the Kienapple principle to the twocounts of dangerous driving causing bodily harm. [10] The Defence submitted that in this case the offences of dangerous driving causing bodily harm are factually the same as theoffences of aggravated assault, and are sufficiently legally linked such that the dangerous driving offences should be stayed pursuant toR. v. Kienapple. [11] To support this position, Defence Counsel referred the Court to R. v. Phillips, (ON SC), [2009] O.J.

No. 400(Ont. S.C.J.) and R. v. Clarke, 2006 NLTD 72. Defence Counsel submitted that in both of those cases the act of dangerous driving wasalso the act of aggravated assault, and the dangerous driving offences were stayed. Defence Counsel submitted that in Mr. Loveys’ case,the act of dangerous driving was also the act of assaulting the victims and therefore the Kienapple principle applies. The Crown doesnot agree. [12] The Kienapple principle is the rule against multiple convictions in a circumstance where an offender has been found guilty ofmore than one offence arising from the same criminal delict.

This principle from R. v. Kienapple was further explained in R. v. Prince, (SCC), [1986] 2 S.C.R. 480. In R. v. Prince, the Supreme Court of Canada clarified that the application of theKienapple principle requires not only that there be a “sufficient factual nexus between the charges”, but also “an adequate legal nexus”between the offences charged (paragraph 22 of R. v. Prince). [13] In this matter, the offences of aggravated assault and dangerous driving causing bodily harm do indeed arise from the samefactual circumstance. This factual circumstance was that Mr. Loveys drove his car and deliberately struck Ms.

Harris and Mr. Mixer,thereby causing them harm. The issue is whether there is a sufficient legal nexus between the offences to support application of theKienapple principle. The analysis is guided by the following comments of the Supreme Court of Canada, at paragraphs 32 and 33 of R.v.

Prince, as follows: 32 I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additionaland distinguishing element that goes to guilt contained in the offence [page499] for which a conviction is sought to be precluded by theKienapple principle. 33 There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction fora lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered,

provided that there are no distinct additional elements in the lesser offence. For example, in R. v. Loyer, (SCC), [1978]2 S.C.R. 631, Kienapple was applied to bar convictions for possession of a weapon for the purpose of committing an offence whenconvictions were entered for the more serious offence of attempted armed robbery by use of a knife. Although the robbery chargescontained the element of theft which distinguished them from the weapons charges, there were no elements in the weapons chargeswhich were additional to or distinct from those in the robbery charges.

Accordingly, it was appropriate for the Court to apply Kienappleto bar convictions on the lesser weapons charges rather than on the robbery charges. [14] The analysis consequently requires a review of the elements of each offence.

The more serious offence of aggravated assault isdescribed in section 268(1) of the Criminal Code, as follows: 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [15] The punishment for aggravated assault is described in section 268(2) of the Code, as follows: 268(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term notexceeding fourteen years. [16] In this case, Mr. Loveys pled guilty to aggravated assault endangering the lives of Ms. Harris and Mr. Mixer.

He thereforeadmitted to the elements of the offence which include the intentional application of force to the victims, without their consent, knowingthat they did not consent, and endangering their lives. [17] By contrast, the offence of dangerous operation of a motor vehicle causing bodily harm requires assessment of whether themanner of driving was dangerous to the public. Section 249(1)(

a) of the Code describes the offence of dangerous driving, as follows: 249(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature,condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or mightreasonably be expected to be at that place; [18] The punishment for dangerous operation of a motor vehicle causing bodily harm is described in section 249(3) of the Code, asfollows: 249(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of anindictable offence and liable to imprisonment for a term not exceeding ten years. [19] While the mental element of the offence of dangerous driving causing bodily harm can be established if an accused’s actionsare deliberate, proof of deliberate conduct or intent is not required.

Rather, the mental element of the offence has been described by theSupreme Court of Canada as including an assessment as to whether the accused’s degree of care was a “marked departure” from thestandard of care which reasonable persons would observe in the same circumstances (see R. v. Beatty, 2008 SCC 5 , [2008] 1S.C.R. 49, and R. v. Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60). [20] In my view, the elements of the offence of dangerous driving causing bodily harm are sufficiently distinct from the elements ofthe offence of aggravated assault.

More specifically, the manner of driving is the core of the offence of dangerous driving; whereasintentional application of force without consent is the core of the offence of aggravated assault. I agree with the Crown’s submissionthat there is not sufficient legal proximity between these two offences. A similar finding was made in R. v. Brown, 2017 ABPC 154. [21] Based on this analysis, I find that the Kienapple principle does not apply in this case. Convictions are therefore also enteredagainst Mr. Loveys for the two offences of dangerous driving causing bodily harm. Mr.

Loveys shall be sentenced on all four offences. SENTENCING POSITIONS OF THE CROWN AND DEFENCE [22] Crown Counsel submitted that Mr. Loveys should be sentenced to a global term of imprisonment of five years, as follows: 5years’ imprisonment for count 1 (aggravated assault endangering the life of Ms. Harris); 5 years’ imprisonment for count 3 (aggravatedassault endangering the life of Mr. Mixer), concurrent; 3 years’ imprisonment for count 4 (dangerous driving causing bodily harm to Ms.Harris), concurrent; and 3 years’ imprisonment for count 6 (dangerous driving causing bodily harm to Mr. Mixer), concurrent.

TheCrown further submitted that there should be a five year driving prohibition, pursuant to section 259(2)(

b) of the Code, which is to beginupon release from imprisonment; less time served under the current driving prohibitions, in accordance with the judicial interim releaseorders dated September 25, 2016 and January 31, 2017. Pursuant to

section 487.051(1) of the Code, the Crown further seeks impositionof a DNA order; and the 10 year mandatory weapons prohibition, pursuant to section 109(1)(

a) of the Code. [23] Defence Counsel submitted that a global sentence of 2 to 2½ years’ imprisonment is appropriate. Defence Counsel submittedthat a further driving prohibition should not be imposed, as such would impede Mr. Loveys’ re-integration into the community upon hisrelease. CIRCUMSTANCES OF THE OFFENDER [24] A pre-sentence report was filed with the Court describing Mr. Lovey’s personal circumstances. His mother, Dianne Loveys,testified at the hearing, and she further described Mr. Loveys’ personal circumstances. [25] Mr.

Loveys is a youthful offender, being 20 years old at the time he committed the offences; he is now 24 years old. He is alsoa first time offender with no criminal record, and no history of violence. [26] Mr. Loveys completed Grade 12 in 2013. He has had sporadic work experience, and he is currently unemployed. His most

recent employer provided correspondence describing Mr. Loveys as hard-working, polite and respectful. [ 27 ] Mr. Loveys lives with his family, and has their support. When his mother testified at the hearing, she described him as a quiet and good person. She was shocked by the incident. Similarly, according to an interview conducted in relation to the pre-sentence report, Mr. Loveys’ aunt described the matters before the Court as being “out of character” for him. [ 28 ] Mr. Loveys has long suffered with serious medical issues, due to his being diagnosed with Crohn’s Disease at the young age of four.

He has undergone medical procedures, including surgeries, and he continues to experience intermittent challenges related to this disease. At the age of seven, Mr. Loveys had a proctocolectomy and ileostomy. His mother described how his ileostomy bag requires specific and regular attention and care. Mr. Loveys has suffered from complications, including painful abscesses related to his disease. In the summer preceding the incident, he was bedridden for several weeks due to such complications. [ 29 ] According to the agreed facts, Mr.

Loveys indicated to police that he had been depressed and suicidal leading up to the incident. Further, according to the pre-sentence report, Mr. Loveys has never received a mental health diagnosis. However, he was brought voluntarily by the RNC to the Waterford Hospital on September 6, 2016, after he had apparently texted Ms. Harris indicating that he was going to kill himself. VICTIM IMPACT [ 30 ] The agreed facts indicated serious injuries were sustained by the victims. According to the agreed facts, Ms. Harris was knocked down by the vehicle. She was taken to hospital and treated for a broken arm. Ms.

Harris further indicated in her victim impact statement that she sustained a broken humerus, broken collarbone, bruised ribs and mild concussion. According to her statement, she continues to suffer pain as a result of her injuries from the incident; and she indicated that she now only has limited use of her arm. In addition to the physical injuries she sustained, the incident also impacted her mental health. She experiences flashbacks and has been diagnosed with PTSD. [ 31 ] According to the agreed facts, Mr. Mixer was thrown several feet when hit by the vehicle. He was rendered unconscious, and bleeding.

He was taken to hospital and treated for a concussion, fractured facial bones and lacerations. In his victim impact statement, Mr. Mixer indicated that he missed three weeks of school after the incident, and that he was hospitalized for about two weeks. He indicated that he sustained a knee injury for which he has been told he needs surgery, and which continues to impact his quality of life. He also sustained a scar on his eyebrow, and other smaller scars on his face. SENTENCING OBJECTIVES AND PRINCIPLES [ 32 ] The purposes of sentencing and the objectives of sentencing are described in

section 718 of the Criminal Code as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 33 ] While all objectives are to be considered in the sentencing of Mr. Loveys, deterrence and denunciation are paramount due to the violent nature of Mr. Loveys’ crimes. Rehabilitation should also be a primary consideration. [ 34 ]

Section 718.1 of the Code describes the sentencing principle of proportionality which must also be considered by the Court.

Section 718.1 states, as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 35 ]

Section 718.2 of the Code sets forth other sentencing principles to be considered. At the time the offences were committed in 2016,

section 718.2 of the Code stated, as follows:

718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. AGGRAVATING AND MITIGATING FACTORS [ 36 ] The Crown submitted that an aggravating factor is that this case involves an incident of intimate partner violence, as Mr. Loveys and Ms.

Harris had been in a romantic relationship which had broken down in early September of 2016, shortly prior to the incident occurring. [ 37 ] On this point, violence related to an intimate partner relationship is now an express statutory aggravating factor under

section 718.2 of the Code ; however, it was not an express statutory aggravating factor at the time of the incident in 2016. Nevertheless, in my view, the Court can and shall consider as a significant aggravating factor, the fact that this matter involved violence related to a prior intimate partner relationship. This finding is consistent with Justice Burrage’s finding in R. v. Saunders , 2018 NLSC 227 (at paragraph 25 ), where he referred to R. v. Squires , 2012 NLCA 20 .

[ 38 ] Further, as submitted by the Crown, a statutory aggravating factor is that Ms. Harris was under the age of 18 at the time the offences were committed (section 718.2(1)(ii.

i) of the Code ). Indeed, both victims were young, as Mr. Mixer had just turned 18 years of age. [ 39 ] Further aggravating factors include that the crimes were deliberate crimes of violence, involving two victims, both of whom sustained serious injuries. [ 40 ] As well, while Mr. Loveys’ actions were out of character, he acted deliberately. Further, he displayed significant hostility when he suggested to Ms. Harris at the scene that he should have just finished off Mr.

Mixer and killed him, as he was almost dead anyway. [ 41 ] The Crown acknowledges, and as submitted by the Defence, there are also a number of mitigating factors in this case. To begin with, Mr. Loveys is a youthful offender, as he was 20 years of age at the time of the incident. Further, Mr. Loveys has no criminal record, and no history of violence. [ 42 ] As well, the fact of his entering guilty pleas is a significant mitigating factor, as is his remorse for his actions. I consider Mr. Loveys’ expression of regret and remorse to be sincere and mitigating.

The agreed facts suggest that he accepted responsibility for his actions, and he expressed remorse to police. His acceptance of responsibility and remorse are also suggested by the pre-sentence report. [ 43 ] Further, I agree with the Defence that Mr. Loveys’ serious health condition is also a mitigating factor. Medical care is available in prison; however, as submitted by Defence Counsel, Mr. Loveys’ medical condition will make incarceration more difficult for him.

CASE ANALYSIS AND RANGE OF SENTENCE [ 44 ] Both Counsel agree that there is a wide range of sentences for cases of aggravated assault in which an offender used a motor vehicle as a weapon. The Court was provided with cases ranging in sentence from 16 months, to 6 years of imprisonment. [ 45 ] The Crown referred the Court to R. v. Cloutier , 2017 ABPC 3 , in which a 6 year term of imprisonment was imposed on a first time offender, a male in his late 30’s with undiagnosed mental health issues, who became angry and drove his truck into a gas station and struck four employees. The offender in R. v.

Cloutier pled guilty to two counts of aggravated assault, one count of dangerous operation of a motor vehicle causing bodily harm, one count of mischief and one count of assault with a weapon. As submitted by the Crown, the judge in R. v. Cloutier determined that mitigating circumstances included the guilty pleas, and the fact that the offender was a first time offender with undiagnosed mental health issues; however, he lacked remorse and continued to blame his victims. Therefore denunciation, deterrence and rehabilitation were paramount.

A 6 year sentence was imposed for the aggravated assaults, concurrent with 3 years for the dangerous driving offence, concurrent with two years each for mischief and assault with a weapon, along with a 10 year driving prohibition, a DNA order and a weapons prohibition. [ 46 ] Defence Counsel distinguished R. v. Cloutier from Mr. Loveys’ case. As noted by Defence Counsel, in R. v. Cloutier there were four victims, and the injuries were far more severe than those suffered by Mr. Loveys’ victims. Further, Defence Counsel submitted that Mr. Cloutier acted out of vengeance, and he was not remorseful. Mr.

Cloutier has informed police that he thought the victims got what they deserved. [ 47 ] By contrast, Mr. Loveys quickly accepted responsibility and expressed remorse to the police. At the same time, however, prior to police arriving, Mr. Loveys did state to Ms. Harris at the scene that he should probably just finish off Mr. Mixer. Nevertheless, I agree that Mr. Loveys’ case is very distinct from R. v. Cloutier ; and the sentence in R. v. Cloutier is excessive for the circumstances of Mr. Loveys’ case. [ 48 ] The Crown further submitted the case of R. v.

Antonelli , 2008 QCCA 1573 , in which a 5 year term of imprisonment was imposed upon a first time offender who pled guilty to aggravated assault, and assault causing bodily harm, with respect to an incident where the offender deliberately rammed his car into a bus shelter, injuring a number of persons inside the bus shelter, including the brother and friends of his ex-girlfriend. The offender was 22 years old at the time of the offence. The judge determined that the incident stemmed from anger.

This was described as an aggravating factor, along with the seriousness of the injuries to the victims, and the deliberate nature of the acts. Mitigating factors included the offender’s guilty plea, his lack of criminal record, and his reference to treatment for mental health issues. [ 49 ] Defence Counsel distinguished R. v. Antonelli primarily on the basis that Mr. Antonelli showed no remorse for his actions; and he even subsequently mocked one of his victims by making fun of the victim’s wheelchair. Further, Mr.

Antonelli had four victims and took considerable time to plan and deliberate before committing the offences. Indeed, Mr. Antonelli’s actions were described by the Quebec court as having a “deliberate and intentional allure, which seems to owe very little to impulsiveness” (at paragraph 80 of R. v. Antonelli ). As well, the injuries to Mr. Antonelli’s victims were much more severe than in Mr. Loveys’ case. [ 50 ] Like R. v. Cloutier , the circumstances of R. v. Antonelli are more extreme than the circumstances of Mr. Loveys’ case. I agree with Defence Counsel’s submission that the sentence in R. v.

Antonelli would be excessive in Mr. Loveys’ case. Mr. Loveys did not display the same level of deliberation, the injuries to his victims were not as severe, the number of victims is less, and he promptly and sincerely accepted responsibility and expressed remorse to the police. [ 51 ] The Crown further referred to the case of R. v. Clarke , 2006 NLTD 72 , where an 18 month sentence of imprisonment was imposed on an offender convicted of aggravated assault, in addition to a 6 month consecutive term imposed for the offence of leaving the scene of an accident.

In that case, Justice Adams determined that the offender was a good candidate for rehabilitation. Justice Adams further imposed a 2 year probation order; and the offender was also prohibited from driving for 3 years. Mr. Clarke appealed his sentence with respect to the length of the prohibition from driving. The driving prohibition was reduced by the Court of Appeal (see R. v. Clarke , 2006 NLCA 52 ).

[52] The offender in R. v. Clarke was 19 years of age with a prior criminal record. He did not enter a plea of guilty, and he wasfound to have deliberately swerved towards a victim standing on the street, striking and seriously injuring the victim, and leaving thescene. Prior to the incident, the offender had been engaged in a verbal altercation with the victim.

Circumstances leading to the offenceincluded that the offender tried to drive away from the scene, but the victim pursued the offender and hit the offender’s car many times.After leaving the scene, the offender headed back to the area of confrontation, and struck the victim with his car. [53] With respect to R. v. Clarke, Defence Counsel submitted that Justice Adams noted Mr. Clarke was unwilling to takeresponsibility for his actions, and had only recently expressed remorse for his actions. This is in contrast with Mr. Loveys whoexpressed timely and sincere remorse.

However, as stated, prior to doing so he demonstrated hostility when stating to Ms. Harris that heshould just finish Mr. Mixer off. Further, unlike in R. v. Clarke, in Mr. Lovey’s case there were two victims, not one. As well, one ofMr. Loveys’ victims was under 18, and he had been in a relationship with her. Consequently, it is my view that in contrast to the R. v.Clarke case, Mr. Loveys’ case requires a longer term of imprisonment than that which was imposed in the case of R. v. Clarke. [54] Defence Counsel referred the Court to cases within a range of 16 months, to 30 months of imprisonment. In R. v.

McConaghie,2017 ONCA 306, the offender received a sentence of 18 months’ imprisonment for the offence of aggravated assault when the offenderdeliberately drove his car into a man. The circumstances preceding involved an altercation between the victim’s son and the offender. Mr. McConaghie subsequently waited for his victim in the parking lot for a period of three quarters of an hour. When the victim’s sonemerged from the bar, the offender deliberately drove his car into the victim as he walked across the parking lot.

Defence Counselsubmitted that this was a deliberate action with calculated vengeance; and noted that the Ontario Court of Appeal (at paragraph 18)indicated the sentence was “comfortably within the range of sentence appropriate”. [55] Defence Counsel also referred to R. v. Chisholm, 1998 NSCA 155, in which the Nova Scotia Court of Appeal confirmed asentence of 16 months’ imprisonment, for aggravated assault, one month concurrent for impaired driving, two months’ concurrent forfailing to stop at the scene of the accident, followed by two years of probation.

The offender pled guilty to the offences which involvedthe offender striking his victim with a car. The offences were preceded by a physical altercation between the offender and the victim,during which the offender first unsuccessfully attempted to back his car towards the victim. Subsequently, the offender drove his cardirectly at his victim, who was struck in the leg and thrown into the air. The victim’s injuries were relatively minor. At paragraph 19 ofR. v. Chisholm, the Nova Scotia Court of Appeal described Mr.

Chisholm as exhibiting “chilling deliberation in his pursuit” of hisvictim. [56] Again, in contrast with R. v. McConaghie and R. v. Chisholm, Mr. Loveys did not engage in the same extent of deliberationbefore striking his victims. Nevertheless, I consider the circumstances of Mr. Loveys’ case to be more serious than the circumstances inR. v. McConaghie and R. v. Chisholm because it involves two victims, serious injuries, and the offence was committed in the contextwhere one of his victims was under 18, and she had been his girlfriend.

Such context requires consideration of a higher sentence thanthat which was imposed in R. v. McConaghie and R. v. Chisholm. [57] Defence Counsel also referred to R. v. Dingwall (1994), (NS SC), 130 N.S.R. (2d) 170 (NSSC), in which theoffender also used his vehicle as a weapon, when he deliberately ran down a hitchhiker causing a permanent disability. He received asentence of two years, less a day for dangerous driving causing bodily harm, six months concurrent for leaving the scene of an accident,and a five year driving prohibition.

As submitted by Defence Counsel, there had been some prior level of negative interaction before theoffender deliberated, and then ran the victim down. The offender in Dingwall had a lengthy criminal record, including past convictionsfor violent crimes. [58] Defence Counsel submitted that the charge of dangerous driving causing bodily harm has a lower sentence then that ofaggravated assault; however, with respect to moral blameworthiness, Defence Counsel submitted that the act of deliberately runningsomeone down essentially captures the same conduct that is sanctioned by an aggravated assault.

As a result, Defence Counselsubmitted that the sentence given in Dingwall should be considered when assessing the sentence for aggravated assault in this case. [59] On this point, as discussed in the analysis of the Kienapple principle, unlike the offence of aggravated assault, the core elementof dangerous driving causing bodily harm is the manner of driving. Further, the offence of dangerous driving causing bodily harm has alower maximum sentence than that of aggravated assault; it is therefore considered a less serious offence.

Although the act in Dingwallwas deliberate, in my view it is more appropriate to consider the Dingwall case when determining an appropriate sentence for theoffences of dangerous driving causing bodily harm. [60] Similarly, Defence Counsel further submitted the case of R. v. Precup, 2015 ONSC 2112, in which the offender was sentencedto two years’ imprisonment for the charge of dangerous driving causing death, and failing to remain at the scene of the collision. Asnoted by Defence Counsel, the offence of dangerous driving causing death carries the same maximum term as aggravated assault.

Defence Counsel noted that Mr. Precup deliberately ran a man down and killed him. Mr. Precup had schizophrenia, and issues withanger, as well as a propensity for violence. Mr. Precup’s mental illness was taken into account in sentencing (paragraph 91 of R. v.Precup). [61] Finally, to further illustrate how similar moral blameworthy behavior should attract similar sentences, Defence Counselsubmitted the case of R. v. Gosh, 2006 ABPC 153. Mr. Gosh was in his early 20’s when he deliberately struck his victims with a car.This occurred at a house party where the offender had been denied entrance to the party.

There were serious injuries, and Mr. Gosh wascharged with three counts of assault with a weapon, and one count of dangerous driving. Like Mr. Loveys, Mr. Gosh entered guiltypleas. However, R. v. Gosh is distinguishable from Mr. Loveys’ case because Mr. Gosh engaged in two attacks, and struck three peoplewith his car. The sentence imposed was 2 ½ years for each of the counts of assault with weapon (concurrent), and 2 years for theoffence of dangerous driving (concurrent). [62] In

summary, with respect to the range of sentence of aggravated assault, the Court was provide with cases in the range ofsentence from 16 months, to 6 years. With respect to this broad range, I agree with Defence Counsel’s submission that the cases of R. v.Antonelli and R. v. Cloutier are cases where the injuries were more serious than in the case before me; there were more victims, and theacts were committed with decided vengeance by persons who were effectively remorseless. The cases of R. v. Clarke, R. v.

McConaghie , R. v. Chisholm and R. v. Gosh present a range from 16 months to 2 ½ years for the offences of aggravated assault, or offences of similarly moral blameworthy behavior. In my view, these cases reflect the more appropriate range of sentence to consider for Mr. Loveys’ offences of aggravated assault. [ 63 ] With respect to the range of sentence for the offence of dangerous driving causing bodily harm, Counsel acknowledged that the range of sentence is generally lower than the range for the more serious offence of aggravated assault. The Crown submitted that the range was 6 to 20 months’ imprisonment.

To support this range, the Crown submitted R. v. O’Keefe , 2011 NLCA 41 , and R. v. Cluney , 2013 NLCA 46 . [ 64 ] In R. v. O’Keefe , our Court of Appeal upheld a trial judge’s sentence of 6 months (concurrent) for each of two charges of dangerous driving causing bodily harm. The Court of Appeal recognized the trend towards imposing terms of imprisonment for serious driving offences which result in bodily harm (paragraph 57 of R. v. O’Keefe ); and reviewed custodial sentences imposed in several other cases (at paragraphs 57 to 71 of R. v. O’Keefe ). One of the cases referenced was R. v.

Proulx , 2000 SCC 5 , in which a first time offender was sentenced to 18 months’ imprisonment, concurrent, for the offences of dangerous driving causing death, and dangerous driving causing bodily harm. The driver was 18 years old at the time of the incident, and he had consumed alcohol. [ 65 ] Another case referred to in R. v. O’Keefe was R. v. Synard , 2006 NLTD 101 , in which the offender pled guilty and was sentenced to 18 months’ imprisonment for dangerous driving causing death, and 6 months’ imprisonment for dangerous driving causing bodily harm (concurrent), and a 5 year driving prohibition.

As well, in R. v. O’Keefe the Court of Appeal referred to R. v. Bennett , [2007] N.J. No. 132 (NL Prov. Ct.) , in which following a plea of guilty to dangerous driving causing bodily harm and possession of marijuana, a 6 month term of imprisonment was imposed, along with a 1 year period of probation and a 3½ year driving prohibition. [ 66 ] Further, reference was also made to R. v.

Tapper , 2009 NLTD 97 , in which the offender pled guilty and was sentenced to 20 months’ imprisonment for each of two counts of dangerous driving causing bodily harm, concurrent; 3 months for breach of probation, and a 3 year driving prohibition. In R. v. Tapper , the offender had consumed a significant amount of alcohol leading up to the accident, and this was an aggravating factor. [ 67 ] In R. v. Cluney , the trial judge had imposed a 6 month sentence for impaired driving causing death.

The Crown appealed and the Court of Appeal increased that sentence to 2 years less a day, 3 years’ probation, a 2 year driving prohibition, plus a 1 month sentence for breach of undertaking. [ 68 ] The above cases impose sentences for dangerous driving offences in the range of 6 months to nearly 2 years. Higher sentences are imposed for the more serious of the driving offences, or for offences where there is a higher degree of moral blameworthiness. As suggested by the Crown’s submission, deliberately using a vehicle to strike and injure a person should attract a sentence in the higher range.

Deliberate dangerous driving is indicative of a high degree of moral blameworthiness. Indeed in R. v. Dingwall , a sentence of 2 years less a day was imposed when the offender deliberately ran down his victim. RANGE OF SENTENCE -

SUMMARY [ 69 ] In

summary, with respect to the range of sentence for the offences of aggravated assault committed by Mr. Loveys, as stated the cases provided impose sentence in a wide range from 16 months of imprisonment, to 6 years. As explained in the foregoing analysis, I agree that the circumstances in Mr. Loveys’ case are distinct from, and not as serious, as the circumstances in R. v. Antonelli and R. v. Cloutier . Further, I have found that the appropriate range of sentence to be considered for each of the aggravated assaults committed in Mr.

Loveys’ case is more in keeping with the range in the remaining case law provided, being from 16 months to 2½ years of imprisonment. [ 70 ] Moreover, as already stated, I consider the circumstances of Mr. Loveys’ case as being more serious than the circumstances in the cases of R. v. Clarke , R. v. McConaghie and R. v. Chisholm . In Mr. Loveys’ case there are two victims, and the incident was related to his prior relationship with Ms. Harris. As well, Ms. Harris was under 18 at the time of the incident; and Mr. Mixer had just turned 18.

Consequently, in my view, the circumstances of the offences of aggravated assault suggest a sentence closer to the higher end of the range of 16 months to 2 ½ years. Having said this, there were three victims in R. v. Gosh in which a 2 ½ year sentence was imposed. [ 71 ] With respect to the range of sentence for Mr. Loveys’ offences of dangerous driving causing bodily harm, the cases provided generally impose sentences from 6 months to about 2 years of imprisonment. I note that in R. v. Cloutier , a sentence of 3 years was imposed for the offence of dangerous driving causing bodily harm.

Again, however, based on the more serious and distinct circumstances in R. v. Cloutier , I do not consider Mr. Loveys’ case to fall within that high of a range. Rather, in my view, the range of 6 months to 2 years is the appropriate range to consider for Mr. Loveys’ offences of dangerous driving causing bodily harm. [ 72 ] I add that because the offence of dangerous driving causing bodily harm is less serious than the offence of aggravated assault, the sentence to be imposed for dangerous driving causing bodily harm should be less than the sentence to be imposed for aggravated assault.

Nevertheless, the deliberate nature of Mr. Loveys’ offences warrant a sentence in the higher end of the range for dangerous driving causing bodily harm. DISPOSITION [ 73 ] In determining a fit and appropriate sentence for Mr. Loveys I have considered all sentencing objectives, but particularly denunciation, deterrence and rehabilitation.

In light of these objectives I have considered the circumstances of the offences, the circumstances of the Offender, and the principles of sentencing, including the victim impact and the range of sentence in the case law provided. [ 74 ] In determining a fit and appropriate sentence, I have also considered the foregoing analysis, and the submissions of Counsel; including that both Counsel agree a federal sentence is appropriate. I have considered the sentencing options, including those presented by Counsel, and those referenced at the sentencing hearing.

I find that the gravity of the offences, and the deliberate nature of Mr. Loveys’ conduct, require that a period of imprisonment be imposed upon him.

[ 75 ] I have also carefully considered the aggravating and mitigating circumstances. I have particularly considered that Mr. Loveys deliberately engaged in this abhorrent act of violence; and that it was violence related to his being in a past relationship with Ms. Harris. Further, I have also particularly considered that there were two victims, both of whom were seriously injured; and that one victim was under the age of 18 years, and the other victim had just turned 18. [ 76 ] At the same time, however, I have also considered that Mr.

Loveys is a youthful first-time offender, he pled guilty to the four offences for which he is being sentenced, and he quickly and sincerely expressed remorse. As well, he has a serious health condition which is a mitigating factor. [ 77 ] Based on these circumstances, in light of the range of sentence, and the entire foregoing analysis, in my view denunciation, deterrence and rehabilitation are served by imposing a term of imprisonment upon Mr.

Loveys of 26 months for each of the aggravated assault offences he committed; and a term of imprisonment of 20 months for each of the offences of dangerous driving causing bodily harm. [ 78 ] In accordance with R. v. Hutchings , 2012 NLCA 2 , I have determined all sentences are to be served concurrently, as there was “a single criminal adventure” (paragraph 84 of R. v. Hutchings ). [ 79 ] With respect to a driving prohibition, the Crown requested that the Court impose the discretionary driving prohibition pursuant to section 259(2) (

b) of the Criminal Code , for a period of 5 years. Mr. Loveys has already been subject to a driving prohibition, for about 40 months, under the terms of his judicial interim release orders dated September 25, 2016 and January 31, 2017. Defence Counsel suggested that a further driving prohibition would impede Mr. Loveys’ re-integration into the community upon release. However, in the circumstances of this case and considering the range of driving prohibitions where imposed in the case law provided, and due to the deliberate nature of Mr.

Loveys’ driving offences, in my view a concurrent driving prohibition of 4 years is appropriate to impose on Mr. Loveys for the dangerous driving offences. [ 80 ] Further, as submitted by Counsel and in accordance with R. v. Lacasse , 2015 SCC 64 , Mr. Loveys shall receive credit for time served on his current driving prohibition under the judicial interim release orders. CONCLUSION [ 81 ] Based on the foregoing analysis, I impose the following sentence upon Mr. Loveys: i.

For Count 1, aggravated assault endangering the life of Terri Emily Harris, a period of imprisonment of 26 months; ii. for Count 3, aggravated assault endangering the life of Neil Mixer, a period of imprisonment of 26 months, to be served concurrently; iii. for Count 4, dangerous operation of a motor vehicle causing bodily harm to Terri Emily Harris, a period of imprisonment of 20 months, to be served concurrently; and iv. for Count 6, dangerous operation of a motor vehicle causing bodily harm to Neil Mixer, a period of imprisonment of 20 months, to be served concurrently. [ 82 ] The global term of imprisonment imposed upon Mr.

Loveys for the four offences is 26 months, less credit for remand time. As agreed by Counsel, Mr. Loveys served a day on remand. At a 1:1.5 ratio, he is entitled to remand credit rounded up to two days. [ 83 ] I further impose a four year driving prohibition pursuant to section 259(2)(

b) of the Code , to commence upon release from imprisonment, less time served on the current driving prohibition which had been imposed pursuant to judicial interim release orders dated September 25, 2016 and January 31, 2017. [ 84 ] I further order that Mr. Loveys shall provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis, in accordance with

section 487.051(1) of the Code . [ 85 ] I further impose a firearms prohibition for a period of ten years in accordance with section 109(1)(

a) of the Code . [ 86 ] Order accordingly. _____________________________ Valerie L. Marshall Justice