R. v. Shears-Decker, 2018 NLSC 59

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Shears-Decker , 2018 NLSC 59 Date : March 16, 2018 Docket : 201704G0113 Her Majesty The Queen v. Nicholas Shears-Decker Before: Justice Brian F. Furey Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: February 14, 2018 Date of Oral Judgment: March 15, 2018

Summary: The Offender was convicted of two counts of refusing to comply with a demand to provide a sample of his breath contrary to section 254(5) of the Criminal Code , the first punishable under section 255(2.2) of the Code and the second punishable under section 255(3.2) of the Code . Held: The Offender was sentenced to imprisonment of two years less a day on the charge of failing to comply with a demand to provide a sample of his breath in circumstances knowing that his operation of a motor vehicle caused an accident resulting in death to another person and four months imprisonment on the charge of failing to comply with a demand to provide a sample of his breath in

circumstances knowing this his operation of a motor vehicle caused an accident resulting in bodily harm to another person. The sentence for Count No. 5 is to be served concurrently to the sentence for Count No. 7. The Court also imposed a driving Order ofProhibition for a period of three years after the term of imprisonment is served, a Probation Order for three years and a victim finesurcharge. Appearances: Adam Sparkes, Q.C. Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of Nicholas Shears-Decker Authorities Cited: CASES CONSIDERED: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v.

Alexander, 2010 NLTD 96. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] Cases involving impaired driving and all the consequences which flow from these are particularly disturbing to society. Thesehave tragic, devastating and life lasting consequences. However, one might say that these matters are not disturbing enough because suchcases continue to occur at an alarming rate. [2] In R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, Cory, J. of the Supreme Court of Canada commented atparagraphs 16 and 19: 16 Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone,it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting inhospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recentlynoted: Impaired driving is a serious crime.

Every year thousands of Canadians are killed and many more injured in traffic-related accidents.Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation -- D. R. Mayhew et al. [AlcoholUse Among Persons Fatally Injured in Motor Vehicle Accidents: Canada 1990] 1992:33). ("Impaired Driving -- Canada, 1991" (1992), 12:17 Juristat 1, at p. 2.) 19 . . . The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime throughthe death and injury of their loved ones. . . .

[ 3 ] On June 5, 2017, counsel for Mr. Shears-Decker entered guilty pleas on the following two charges under the Criminal Code , R.S.C. 1985, c. C-46: Count No. 5 (as amended on February 14, 2018) on or about the 13th day of August, A.D., 2016, at or near the town of St. Paul’s in the Province of Newfoundland and Labrador did, without reasonable excuse and knowing that his operation of a motor vehicle caused an accident resulting in bodily harm to another person, refuse to comply with a demand made to him by Cst.

Wayne Cross, a Peace Officer, to provide samples of his breath that were, in the opinion of a qualified technician, necessary to enable a proper analysis to be made in order to determine concentration of alcohol in his blood contrary to Section 254(5) of the Criminal Code and punishable under Section 255(2.2) of the Criminal Code . Count No. 7 (as amended on June 5, 2017) on or about the 13th day of August, A.D., 2016, at or near the town of St.

Paul’s in the Province of Newfoundland and Labrador did, without reasonable excuse and knowing that his operation of a motor vehicle caused an accident resulting in death to another person, refuse to comply with a demand made to him by Cst.

Wayne Cross, a Peace Officer, to provide samples of his breath that were, in the opinion of a qualified technician, necessary to enable a proper analysis to be made in order to determine concentration of alcohol in his blood contrary to Section 254(5) of the Criminal Code and punishable under Section 255(3.2) of the Criminal Code . [ 4 ] The following is the wording of those sections in the Criminal Code : 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. 255(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years. 255(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life. [ 5 ] The sentencing hearing was scheduled for February 14, 2018.

I heard submissions from counsel. I questioned Mr. Shears- Decker in relation to his guilty pleas. I was satisfied that he was making the pleas voluntarily and that he understood the nature and consequences of the guilty pleas. Convictions were entered on the two charges noted in paragraph 3 above. I reserved my decision on sentencing until March 15, 2018. issue [ 6 ] The sole issue for consideration is a fit and proper sentence for Mr. Shears-Decker. the offender [ 7 ] A Pre-Sentence Report dated October 23, 2017 was prepared regarding Mr. Shears-Decker by Robert J.

Morrissey, the regional probation officer. [ 8 ] Mr. Shears-Decker was born in 1990 in Brampton, Ontario. He and his mother returned to live in Rocky Harbour, Newfoundland and Labrador, when he was three years old. He resided there except for four years when he lived in St. John’s, Newfoundland and Labrador, while his mother attended university. [ 9 ] He characterized his family relationships in positive terms. He had the support of his maternal grandparents and other members of his extended family. [ 10 ] Mr. Shears-Decker did not have any early social adjustment issues in the school and community environments.

He did not have any significant disciplinary, behaviour or academic issues as a young person. [ 11 ] He was approximately 13 years old when he first consumed alcohol. In his early twenties, Mr. Shears-Decker was consuming alcohol every day. His use of alcohol was later moderated. He also engaged in some illicit drug use when he was about 18 years of age. He stated to the author of the Pre-Sentence Report that he is now drug tested for employment on a regular basis. [ 12 ] Mr. Shears-Decker graduated from high school in 2008. He attended the College of the North Atlantic in Stephenville for one and a half years.

He worked seasonally for a period of time after school. To his credit, he then returned to school and obtained his power line technician certificate in October 2012. He is now a third-year power line technician apprentice. He has traveled to and worked at

several locations in this province and outside the province. He has worked seasonally for the past five years. He does not have a history of any disciplinary or interpersonal issues with his employers or co-workers. [ 13 ] Mr. Shears-Decker has been a permanent resident of this province since early 2016. [ 14 ] Mr. Shears-Decker is the father of a son who is ten years old. The child lives with his mother. He is able to visit with his child and maintain a relationship. [ 15 ] He has been in a relationship with his current partner for approximately 20 months. They have one child who is six months old. Mr.

Shears-Decker and his partner characterized their relationship in positive terms and noted they are committed to the relationship and their family. They stated that they have a strong, healthy and supportive relationship. [ 16 ] Mr. Shears-Decker has a criminal record arising from a break and entry in May 2012 and breaches of probation in January 2016 with respect to the former Order. The author of the Pre-Sentence Report stated that Mr.

Shears-Decker reported as required, made court ordered restitution and completed a Community Service Order placement. sentencing submissions [ 17 ] Counsel for both the Crown and Mr. Shears-Decker have acknowledged that a period of incarceration is warranted for these offences. Position of the Crown [ 18 ] The Crown seeks a sentence of imprisonment of three years for the offences, which could be divided as 30 months for one count and 6 months for the second count, the latter to be served consecutively or 36 months for one count and 6 months for the second count, the latter to be served concurrently.

The Crown also requested a three year driving prohibition. [ 19 ] Counsel for the Crown noted that he understood counsel for Mr. Shears-Decker was seeking a sentence of imprisonment of less than two years. He suggested that this was outside the current range of sentences. If the sentence imposed by the Court was under two years, the maximum length of the Probation Order would be three years. Position of Mr. Shears-Decker [ 20 ] Counsel for Mr.

Shears-Decker submits that the appropriate sentence of imprisonment for these offences is eighteen months for the count resulting in death to another person and three months for the count resulting in bodily harm to another person. The sentences should be served concurrently. He agreed with the Crown’s position on a driving prohibition – three years. He also agreed with the issuance of a Probation Order. PrincipLES of sentencing [ 21 ]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing. It states in part: 718. Purpose – 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. . . . 718.1 Fundamental principle – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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, . . . … (

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 should be considered for all offenders … [ 22 ] The maximum term of imprisonment for the charge under section 254(5) punishable under section 255(2.2) is 10 years. The maximum term of imprisonment for the charge under section 254(5) punishable under section 255(3.2) is life. analysis [ 23 ] On the late evening of August 13, 2016, Mr. Shears-Decker’s motor vehicle went off the road on Route 430 just south of St. Paul’s, Newfoundland and Labrador.

The vehicle flipped a number of times. Two passengers in the back seat suffered non-life threatening injuries. The third passenger, David White, a friend of Mr. Shears-Decker, was in the front passenger seat. He received severe blunt force trauma to his head and was pronounced dead at the scene. [ 24 ] An R.C.M.P. officer who arrived on the scene of the accident noted signs of impairment from Mr. Shears-Decker who identified himself as the driver of the motor vehicle. Mr. Shears-Decker told the police officer that he had been drinking. Another R.C.M.P. officer asked Mr.

Shears-Decker, after he was checked by medical personnel, to accompany her to the police vehicle to provide a statement. The police officer stated there was a strong smell of alcohol from Mr. Shears-Decker, he was noted to be off balance and unsteady while walking and his eyes were bloodshot and watery. [ 25 ] Mr. Shears-Decker was provided an opportunity to speak with legal counsel. He initially indicated he would provide a breath sample after a breath demand was read to him. He subsequently refused to provide a breath sample. The charge of refusing to provide a breath sample was explained to him.

He indicated he already knew about this. [ 26 ] Counsel for Mr. Shears-Decker pointed out that his client is being sentenced for his refusal to comply with a demand to provide a breath sample. However, I would point out that the refusal is in the context of a series of events where there was an automobile accident in which a person died, two other persons received bodily injuries, Mr.

Shears-Decker identified himself as the driver of the vehicle and as having been drinking and two R.C.M.P. officers noted signs of impairment from him. [ 27 ] The maximum terms of imprisonment in such circumstances are significant, in my view, to underscore the serious nature of these offences and to deter individuals. [ 28 ] Mr. Shears-Decker chose to drive that night in a manner which was so dangerous that his good friend was killed and his two other friends were injured. The accident reconstruction expert determined that Mr.

Shears-Decker’s vehicle failed to negotiate a turn on the highway and was traveling at the rate of 133 kilometres per hour in a 90 kilometre zone just before the accident. His moral culpability is great. [ 29 ] As Goodridge, J. stated in

part in paragraph 40 of R. v. Alexander , 2010 NLTD 96 , “. . . a person’s life has been taken. The consequences do not get any more serious or any more final.” [ 30 ] The primary focus when sentencing for this type of offence is general deterrence and denunciation. I find that there is not a need for specific deterrence because Mr. Shears-Decker will have to live with the consequences (and the memories) of his actions on August 13, 2016 for the rest of his life. The death of his friend will likely cause Mr.

Shears-Decker never to repeat this incident. [ 31 ] I agree with both counsel that a period of imprisonment is necessary for the sentence to be consistent with the purpose and principles of sentencing. [ 32 ] Mr. Brandon Blair was a passenger in Mr. Shears-Decker’s motor vehicle when it crashed on that evening. He provided a Victim Impact Statement. Mr. Blair outlined that he was laid up for a period of nine months due to the accident. He had feelings of discouragement, frustration and uselessness because of his requirement to have others help him with aspects of daily living.

He had always prided himself as an independent individual. He was overcome with anxiety many days. He described the post-accident recovery as being the hardest thing he has ever gone through in his life. It has changed him both mentally and physically. He was off work for almost a year. He had to attend physiotherapy, use heating pads and take ibuprofen for pain and discomfort. The accident also had an economic impact on Mr. Blair because of the time he was off work and the resulting loss of regular income, notwithstanding he did receive certain employment insurance benefits. [ 33 ] Ms.

Alyssa Austin-Brace was the third passenger in Mr. Shears-Decker’s vehicle. In her Victim Impact Statement, Ms. Austin-

Brace stated that the accident has changed her life forever. She cannot sit into a car without having a panic attack. She is scared to go places. She has developed night terrors involving car accidents. She noted she has been receiving counselling because of the accident. She said it has been extremely hard for her to deal with what happened or to talk about it. She received some physical injuries from the accident but these are not as painful as the heart break she feels when she remembers what happened. [ 34 ]

Section 718.2 (

a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 35 ] The aggravating factors in this matter are: a. The gravity of the circumstances wherein Mr. Shears-Decker acknowledged to the police officer that he had been drinking; b. The excessive rate of speed at the time of the accident which led to the subsequent events – a person’s death, two persons injured and Mr. Shears-Decker’s refusal to provide a breath sample; and c.

The three victims, one who died and two who suffered bodily injuries. [ 36 ] The mitigating factors are: a. Mr. Shears-Decker entered guilty pleas to these charges; b. He was cooperative during the process of completing the Pre-Sentence Report; c. He is, in my view, at a low risk to re-offend because of his family relationship, his educational level and his employment status; d. He has a minor criminal record which does not relate to the two offences to which he has pled guilty; and e. He has taken responsibility for his offences. He has expressed appropriate and genuine remorse. The deceased, Mr.

White, was a close friend of his. Mr. Shears-Decker told the author of the Pre-Sentence Report that “Mr. White comes to his mind every day”. Following counsel’s submissions, I asked Mr. Shears-Decker if he had anything to say. He said he cannot imagine the great deal of pain he has caused everyone. He was an alcoholic. He has completely turned his life around. He is committed to his family, his wife and his son and to supporting them for as long as he can for the rest of his life. [ 37 ] Counsel for the Crown and Mr. Shears-Decker provided the Court with the cases listed in

Schedule “A” to these Reasons for Judgment, each of which I have reviewed. The cases were helpful. I note there was only one case which dealt directly with a refusal to provide a breath sample contrary to section 254(5) of the Criminal Code . The other cases dealt with the effect of impairment on the accused. I will not review the cases set out in

Schedule “A” individually in these Reasons. [ 38 ] Society’s views may have changed in the years since Cory, J. made his statement in R. v. Bernshaw which is set out in paragraph 2 above but they have certainly not gotten to the point where individuals have stopped drinking and driving. It still continues as do the consequences of such actions, including criminal charges. [ 39 ] I have carefully reviewed the submissions of counsel, the case law, and considered all of the facts. I have determined that the appropriate sentence for Mr. Shears-Decker for each offence is as follows: a.

Count No. 7, failing to comply with a demand to provide a sample of his breath in circumstances knowing that his operation of a motor vehicle caused an accident resulting in death to another person contrary to section 254(5) – two years less a day; and b. Count No. 5, failing to comply with a demand to provide a sample of his breath in circumstances knowing that his operation of a motor vehicle caused an accident resulting in bodily harm to another person contrary to section 254(5) – four months.

I am satisfied that based on sentencing principles it is appropriate that a fit and proper sentence in the circumstances is to make the sentence for the Count No. 5 concurrent with the sentence for Count No. 7 resulting in a total sentence of two years less a day imprisonment. [ 40 ] In addition to the sentence of imprisonment, the Court imposes the following ancillary orders: a. Pursuant to section 259(1) of the Criminal Code , I hereby order that Mr.

Shears-Decker is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of three years plus the period of imprisonment imposed. Pursuant to section 260(1) of the Criminal Code , I direct the Court Officer to cause the driving Order of Prohibition made under

section 259 to be read by or to Mr. Shears-Decker and a copy thereof be given to him and that he be informed of the provisions of subsection 259(4) of the Criminal Code which states: 259(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(

b) is guilty of an offence punishable on

summary conviction. b. Pursuant to section 731(1)(

b) and

section 732.1(2), a Probation Order for a period of three years is imposed. The conditions of theProbation Order are as follows: i. Keep the peace and be of good behaviour; ii. Abstain from communicating, directly or indirectly, with any victim or their families or withthe family of the deceased, David White, unless the victim or other person or the family of the deceased gives their consent in writing; iii. Appear before the Court when required to do so by the Court; iv. Within two working days of the commencement of this Probation Order, Mr.

Shears-Deckermust report in person to a probation officer and thereafter as required; v. Mr. Shears-Decker must comply with all instructions received from a probation officer and hemust attend all counseling or treatment sessions or programs dealing with alcohol addiction as recommended by a probation officer; and vi. Mr. Shears-Decker must refrain from the possession or consumption of alcohol for the first 12months of this Probation Order. c. Pursuant to

section 737 of the Criminal Code, Mr. Shears-Decker shall pay a victim surcharge in the amount of $400, being $200for each offence for which he has been convicted. The victim surcharge is to be paid within 90 days of today’s date. The Court Officerwill provide Mr. Shears-Decker with a notice in accordance with section 737(8) of the Criminal Code. [41] The sentence I have imposed is a significant one. A period of imprisonment and the accompanying Orders are a clear indicationof the seriousness of this matter. This whole series of events has had major life-altering consequences for many people.

There is no goingback from what happened on August 13, 2016. It has changed lives forever. [42] Mr. Shears-Decker, I hope this matter on today’s date will be your last involvement with the criminal justice system. [43] I wish to express my thanks to counsel for their submissions and their professionalism throughout this matter. _____________________________ Brian F. Furey Justice

Schedule “A” List of authorities submitted by Crown 1. R. v. Woodworth (1993), (NL CA), 108 Nfld. & P.E.I.R. 240, 83 CCC (3d) 75 (Nfld. C.A.) 2. R. v. Cluney, 2013 NLCA 46 3. R. v. Ralph (E.R.), 2007 NLTD 42 4. R. v. Hynes, 2006 NLCA 10 5. R. v. McCarthy (1997), (NL CA), 157 Nfld. & P.E.I.R. 222, 36 WCB (2d) 403 (Nfld. C.A.) 6. R. v. Thistle, 2015 NLTD(G) 44 7. R. v. Whalen, 2017 NLTD(G) 100 8. R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 9. R. v. Lacasse, 2015 SCC 64 10. R. v. Mitchell, 2016 ONCJ 731 11. R. v. O’Keefe, 2011 NLCA 41 List of Authorities submitted by Defence

1. R. v. Fancy (2007), 74 W.C.B. (2d) 27, 48 M.V.R. (5th) 92 (NL Prov. Ct.) 2. R. v. McCarthy (2014), 357 Nfld. & P.E.I.R. 170, 117 W.C.B. (2d) 402 (NL Prov. Ct.) 3. R. v. Morton (2013), 345 Nfld. & P.E.I.R. 256, 110 W.C.B. (2d) 595 (NL Prov. Ct.) 4. R. v. Alexander, 2010 NLTD 96 5. R. v. McCarthy (25 February 2016), Stephenville (NL Prov. Ct.) 6. R. v. Coombs, 2004 NLSCTD 85 7. R. v. Isaacs (1994), (NL SC), 124 Nfld. & P.E.I.R. 160, 25 W.C.B. (2d) 554 (Nfld. S.C. (T.D.)) 8. R. v. Shiwak (1997), (NL SC), 150 Nfld. & P.E.I.R. 238, 33 W.C.B. (2d) 416 9. R. v. Synard, 2006 NLTD 101