R. v. Quilty, 2020 NLSC 45

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Quilty , 2020 NLSC 45 Date : March 12, 2020 Docket : 201901G0540 Her Majesty The Queen v. Brandon Quilty Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 5 and 12, 2020

Summary: Brandon Quilty pleaded guilty and was convicted of one count of dangerous driving causing death. Mr. Quilty operated a vehicle at an excessive rate of speed along a winding road with a single lane for each direction of travel. He lost control of the vehicle and, ultimately, it crashed, resulting in the death of a passenger. The sole issue for determination was the imposition of an appropriate sentence. Held: The Court imposed a sentence of incarceration for a period of two years plus a day and a five-year driving prohibition.

The Court refused to exercise its discretion to grant a DNA order in the circumstances. The Court took into consideration the aggravating factors of the high rate of speed and Mr. Quilty’s prior driving record as well as the mitigating factors that he had pleaded guilty and was a youthful offender with no prior criminal record. Appearances:

Jason N. House Appearing on behalf of the Crown Erin K. Breen Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Ipeelee, 2012 SCC 13; R. c. LaCasse, 2015 SCC 64; R. v. O'Keefe, 2011 NLCA 41; R. v. Proulx, 2000SCC 5; R. v. Ford, 2003 CarswellOnt 3280, [2003] O.J. No. 3363 (Ont. C.A.); R. v. Lam (2003), (ON CA), 178O.A.C. 275, 180 C.C.C. (3D) 127 (Ont. C.A.); R. v. Woodward (1993), (NL CA), 108 Nfld. & P.E.I.R. 240, 83 C.C.C.(3d) 75 (Nfld. S.C. (App. Div.); R. v. Coombs, 2004 NLSCTD 85; R. v. Synard, 2006 NLTD 101; R. v. Brake, 2008 NLTD 175; R. v.Junkert, 2010 ONCA 549; R. v.

Regier, 2011 ONCA 557; R. v. Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (NL Prov.Ct.); R. v. Grenke, 2012 ABQB 198; R. v. Roby, 2015 BCSC 1929; R. v. Dunford, 2017 SKCA 1; R. v. C. (R.), 2005 SCC 61 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Highway Traffic Act, R.S.N.L. 1990, c. H-3 ORAL REASONS FOR JUDGMENT Chaytor, J.: OVERVIEW [1] Brandon Quilty pleaded guilty to unlawfully operating a motor vehicle in a manner dangerous to the public and therebycausing the death of Justin Murrins, contrary to subsections 249(1)(

a) and 249(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the“Criminal Code”). [2] An Agreed Statement of Facts, signed by Mr. Quilty and his counsel as well as counsel for the Crown, was read into therecord. I was satisfied, based upon the Agreed Statement of Facts and evidence tendered by way of exhibits, that the Crown had provenall elements of the offence charged and a conviction was entered. [3] The facts, as agreed upon by the parties and submitted to the Court, are as detailed in the Agreed Statement of Facts[1]. Abrief

summary of the circumstances surrounding this offence follows. [4] On May 17, 2017, Brandon Quilty drove a Chevrolet Corvette along Blackhead Road in Blackhead, NL with Justin Murrins asa passenger. Mr. Quilty operated the vehicle at an excessive rate of speed and lost control of the vehicle. It left the road, struck a rockcliff on the side of the road, vaulted off the cliff and spun on its roof until coming to a rest 840 metres from the first gouge mark in theroad. Blackhead Road is a winding road with a single lane for each direction of travel. The posted speed limit is 80 km/hr.

An analysisof the Crash Data Recorder of the vehicle noted a speed of 207 km/hr at one point. A vault calculation of the speed of the vehicle at thetime of the crash determined its speed to be 194 km/hr. [5] Mr. Murrins was not wearing his seatbelt. He was ejected from the vehicle and sustained significant injuries, including headinjuries. Sadly, he succumbed to his injuries in hospital two days later. [6] The sole issue for determination is the imposition of an appropriate sentence for the offence committed by Mr. Quilty.

For thereasons that follow, I am imposing a sentence of incarceration for a period of two years plus one day and a driving prohibition of fiveyears. THE CROWN AND DEFENCE POSITIONs [7] The positions of the Crown and Defence as to an appropriate sentence did not differ substantially. It was not, however, a jointsubmission. The Crown sought a period of incarceration in the range of 2 to 2 ½ years, a driving prohibition of 5 years and a DNAOrder. The Defence submitted that a period of incarceration of two years plus one day was appropriate.

The Defence agreed with theCrown’s proposal with respect to the driving prohibition of 5 years but did not agree that a DNA order was warranted. sentencing parameters and principles [8] In any sentencing, consideration must be given to the principles of sentencing set out in sections 718 and 718.2 of the CriminalCode. The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just,peaceful and safe society. This is achieved by imposing just sanctions that have one or more of the following objectives:

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

b) Deterrence of the offender and other persons from committing offences;

c) Separation of offenders from society, where necessary;

d) Rehabilitation of offenders;

e) Reparation for harm done to victims or to the community; and

f) Promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 9 ] In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that the fundamental principle of sentencing is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison with sentences imposed for similar offences under similar circumstances. In R. c.

LaCasse , 2015 SCC 64 , Wagner, J. (as he then was), in commenting on the principle of proportionality, stated at paragraph 12 that, t he more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. [ 10 ] Deterrence and denunciation are key objectives in sentencing for this type of offence. Specific deterrence is also a consideration in this case as Mr.

Quilty, in his short driving experience, had accumulated a number of Highway Traffic Act , R.S.N.L. 1990, c. H-3 convictions and at the time of the incident was operating a vehicle while his driver’s licence was suspended. In cases where deterrence and denunciation are to be emphasized, courts have few options other than imprisonment for meeting these objectives ( Lacasse , paragraph 6 ). [ 11 ] Rehabilitation is also an important objective of our criminal justice system. This is particularly so when dealing with a first-time youthful offender. Mr.

Quilty was 22 years of age at the time of committing this offence. He did not have a criminal record. Mr. Quilty would like a federal term of imprisonment so that he can participate in programs that are available in a federal institution, to assist in his rehabilitation. [ 12 ] Although Mr. Quilty’s age is of relevance in considering the important objective of rehabilitation, age and youthful foolhardiness is no excuse for breaking the law and putting the lives of others at risk. The Court must send a strong message of denunciation that it will not condone such behavior.

Dangerous driving will be seen for what it is – a criminal offence. It will not be viewed as merely a lark of youth. Others who might be inclined to see it as such must be deterred and understand this is criminal behavior with potentially grave consequences such as we have in this case. Victim Impact Statements [ 13 ] Victim impact statements were filed by Justin Murrins’ mother and father, Sherry Murrins and Wally Brennan. Ms. Murrins read her statement in Court while Mr. Brennan’s was read into the record by Crown counsel. [ 14 ] Justin Murrins was 27 years of age at the time of this tragic incident.

Each of his parents described in their statements the heartache they have endured because of Justin’s death and the void that lingers in their lives. For Mr. Brennan it is not only his personal life that has suffered but also his work life. Mr. Brennan has been an operating room personal care attendant for over 30 years. He struggles to go to work each day knowing that his place of employment is the operating room where his son died. [ 15 ] I have heard the anguish of Justin Murrins’ parents expressed in the words of their statements. Their loss is immeasurable and their grief profound.

No matter what I say or what sentence I impose, Justin Murrins’ family cannot be restored to the lives they enjoyed with their son. As stated by Mr. Brennan in his victim impact statement, this court process will not give closure. There is no such thing as closure when you lose a child. Anything I say about this incident will fall far short of being adequate. Mr. Quilty’s so-called joy ride has been a ride to sorrow for Mr.

Murrins’ family. [ 16 ] This horrific incident is yet another sad example of the needless harm, suffering, and destruction that occurs when a person makes the decision to get behind the wheel and drive in a manner that puts at risk not only the people in the vehicle but everyone in the vehicle’s path and vicinity. But the tragic consequences of this incident, and all incidents like it, extend far beyond those who were put at physical risk. The lives of many people have been shattered. At best, they are left to try to pick up the broken pieces.

Circumstances of Offence [ 17 ] The circumstances surrounding the commission of this offence are detailed in the Agreed Statement of Facts. [ 18 ] I have considered the aggravating factors of Mr. Quilty’s prior driving record and the excessive rate of speed leading up to the incident. [ 19 ] At the time of the offence, Mr. Quilty’s drivers licence was suspended. Furthermore, prior to this incident, Mr. Quilty had been convicted of ten Highway Traffic Act offences. These offences arose on four separate occasions in the year leading up to this incident.

On March 10, 2016 he was charged with operating a motor vehicle without insurance and without being the holder of a valid driver’s licence. Approximately a month later, on April 15, 2016, he was again charged with operation of a motor vehicle without a valid driver’s

licence or insurance. In addition, he was charged on that date with operation of an unregistered vehicle. Approximately five months later,and just eight months prior to the incident for which he is now being sentenced, on September 20, 2016, Mr. Quilty was charged withpassing in a “no passing” zone. The same date he was again charged with driving without a valid driver’s licence and failing to producethe vehicle licence. On May 7, 2017, just ten days before this incident, he was again charged with driving with a suspended license andwithout insurance. [20] Although only one of Mr.

Quilty’s prior driving offences was for a moving violation, it is evident that as a young driver Mr.Quilty had already demonstrated an inclination towards committing driving offences, particularly with respect to continuing to drivewhen he was not authorized to do so. It is also evident that his prior convictions did not deter him from the escalation in his illegaldriving behavior which culminated in his dangerous driving on May 17, 2017. [21] With respect to the manner of driving leading up to the commission of this offence, Mr.

Quilty operated the vehicle at anexcessive rate of speed - over twice the posted speed limit. The Crash Data Recorder of the vehicle noted a high speed of 207 km/hr. Avault calculation of the speed of the vehicle at the time of the crash calculated the speed to be 194 km/hr. The speed limit in the area was80 km/hr. Blackhead Road is a winding road with a single lane for each direction of travel. This incident occurred mid-morning. Therewas other traffic on the road as evidenced by one witness to the accident, Sherri Moore who was driving west on Blackhead Road at thetime.

The dangerous manner and speed of driving is evident from the description of what happened to the vehicle during the incident ascontained in paragraph 16 of the Agreed Statement of Facts. [22] I have also considered the mitigating factors. Mr. Quilty is a youthful offender. He has no criminal record. He pleaded guiltywhich saved witnesses from having to testify and valuable Court time and resources. Particularly, it has saved the family and loved onesof Justin Murrins from having to endure a trial. In addressing the Court, Mr. Quilty apologized to the family of Justin Murrins.

Circumstances of the Offender [23] With respect to Mr. Quilty’s circumstances, I do not have the benefit of a Pre-Sentence Report however, his counsel madesubmissions which included information regarding her client’s personal circumstances. Mr. Quilty is now 25 years of age. He has noprior criminal record. He has family support as evidenced by his mother’s attendance in Court for these proceedings. Mr. Quilty alsosustained significant injuries in the incident, including a head injury. He has no memory of the incident. [24] I accept that Mr. Quilty is remorseful.

He will live with the consequences of his actions for the rest of his life. His actionskilled his friend. As Justin Murrins’ mother said in her victim impact statement, there are no winners here. The best way however, forMr. Quilty to truly show his remorse and to honour his friend’s memory is by his actions - to live the remainder of his life in a way thatnever puts another person’s life at risk.

Ideally, he will have learned from this and will find a productive way to use this horrific lifelesson to help others also understand the tragic consequences of dangerous driving. prescribed sentence [25] Consideration of an appropriate sentence must begin with what is statutorily prescribed by the Criminal Code with respect tothe offence. Pursuant to subsection 249(4) of the Criminal Code, a person who commits an offence under subsection 249(1) and therebycauses the death of another person, is liable to imprisonment for a term not exceeding 14 years.

When bodily injury - not death - is theresult, the maximum sentence is 10 years. Having a higher prescribed maximum sentence for death than bodily harm, supports the viewthat the consequences of an offender’s conduct and not just the conduct itself, is a relevant factor in sentencing for this driving offence. Range of Sentence [26] I have also considered the range of sentence imposed for this offence in cases with similar fact situations, including thosesubmitted by counsel and the cases referenced within those cases.

Although there have been cases in the past where fines had beenimposed for this offence, this is no longer consistent with the trend in the case law, nor is it in keeping with the need for deterrence forsuch driving offences. A period of incarceration is now the norm for cases where bodily harm or death result from dangerous driving. As stated by our Court of Appeal in R. v. O'Keefe, 2011 NLCA 41, at paragraph 57, that since R. v.

Proulx, 2000 SCC 5, “there has beena developing trend towards the imposition of periods of incarceration for serious driving offences causing bodily harm”. [27] In Proulx, the accused, a youthful and inexperienced driver, pleaded guilty to the offences of dangerous driving causing deathand bodily harm. The trial judge imposed a period of eighteen months’ incarceration. The Manitoba Court of Appeal substituted aconditional period of imprisonment. The Crown appealed to the Supreme Court of Canada, which restored the trial judge’s decision of18 months imprisonment. [28] In R. v.

Ford, 2003 CarswellOnt 3280, [2003] O.J. No. 3363 (Ont. C.A.), the offender had driven his vehicle into anintersection on a busy highway through a red light at an excessive rate of speed and hit two other vehicles. In so doing, he killed thedriver of one of the vehicles and injured occupants in the other. At trial, he was sentenced to three years’ incarceration on the convictionfor dangerous driving causing death and 18 months on the two convictions for dangerous driving causing bodily harm, to be servedconcurrent to the three-year sentence.

On appeal, the court varied the sentence to two years less a day and in doing so noted theoffender’s age (in his twenties) and that he did not have a criminal record. [29] R. v. Lam (2003), (ON CA), 178 O.A.C. 275, 180 C.C.C. (3D) 127 (Ont. C.A.), involved an incidentdescribed as a “show of speed” lasting less than a minute, during which the 26-year old accused travelled 170 km/hr in a 70 km/hr zoneand collided with another vehicle killing a young woman. He was convicted of criminal negligence causing death and sentenced to twoyears, less one day, followed by probation for three years.

A lifetime driving prohibition was also imposed. The sentence was upheld onappeal. The court noted that Mr. Lam was not driving recklessly for a lengthy period of time, he did not try to evade police, had nocriminal record or significant driving record and had abided by strict bail conditions. In comparing this case to that of Mr. Quilty, it isnoted that Mr. Lam was sentenced for criminal negligence causing death (in the operation of a vehicle), an offence that our Court ofAppeal has stated is generally a more serious offence than dangerous driving causing death (R. v.

Woodward (1993), (NL CA), 108 Nfld. & P.E.I.R. 240, 83 C.C.C. (3d) 75 (Nfld. S.C. (App. Div.)).

[ 30 ] In R. v. Coombs , 2004 NLSCTD 85 , the accused was convicted following a jury trial of dangerous driving causing death. In that case, the offender, while operating an ATV on a highway on a foggy evening, struck and killed a pedestrian who was walking along the shoulder of the road. The trial judge imposed a period of 12 months’ incarceration followed by probation for two years and a four- year driving prohibition. [ 31 ] In R. v. Synard , 2006 NLTD 101 , Mr. Synard, a 22-year old accused, after having consumed alcohol, drove his vehicle with two passengers.

He approached a bend in the road at a high rate of speed even though one of his passengers had protested. Mr. Synard lost control of the vehicle, which left the road and flipped over. One passenger was killed and the other injured. Mr. Synard pleaded guilty to the offences of dangerous driving causing death and bodily harm. A period of eighteen months’ incarceration and a five-year driving prohibition was imposed for the dangerous driving causing death offence. [ 32 ] In R. v.

Brake , 2008 NLTD 175 , the accused was convicted, following trial, of dangerous driving causing death and dangerous driving causing bodily harm. The accused drove at an excessive rate of speed on a snowy night, through a stop sign and collided with another vehicle, killing one of its occupants and seriously injuring the other. The court reviewed case law and found the range of sentence to be quite broad, but stated that for a first-time offender with a positive pre-sentence report, the range appeared to be a suspended sentence to three and a half years’ imprisonment.

The court declined to impose a conditional sentence (which was an option at the time). Mr. Brake was sentenced to a period of fourteen months’ incarceration and a three-year driving prohibition for the dangerous driving causing death conviction. [ 33 ] In R. v. Junkert , 2010 ONCA 549 , the accused was convicted, following a trial, of the offences of impaired driving causing death and dangerous driving causing death. Mr. Junkert had driven a vehicle while impaired in a residential neighbourhood, lost control of his vehicle and struck and killed a jogger. Mr.

Junkert was sentenced to five years’ imprisonment on the impaired driving causing death charge and three years on the dangerous driving causing death charge. In addition, the trial judge imposed a 10-year driving prohibition. The sentence was upheld on appeal. The appellate court noted that sentences of four to five years for first-time offenders in impaired driving causing death cases may be at the high end of sentences. However, it did not find the sentence to be unfit and noted that there continues to be a gradual increase in sentences for this type of offence over recent years.

This case differs, of course, from that of Mr. Quilty in that the aggravating factor of impairment is not present here. [ 34 ] In R. v. Regier , 2011 ONCA 557 , the accused drove at a high speed crossing into the oncoming lane and striking a truck causing it to hit another car. The truck driver was seriously injured and two occupants in the car were killed. The Ontario Court of Appeal upheld a sentence of 6 years’ incarceration noting that sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public.

It did not accept that the range for such cases was restricted to two to three years. In that case, the offender had a lengthy record of driving offences over a period of twenty-eight years, including a prior incident of careless driving. [ 35 ] In R. v. Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (NL Prov. Ct.) , the accused, while driving on the Trans Canada Highway, passed another vehicle in a non-passing zone. The accused’s speed at the time was approximately 140 km/hr. He lost control of the vehicle and it landed in a pond.

One of the occupants in the vehicle drowned and another passenger received significant injuries. Mr. Hodder pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm. He was sentenced to a period of 30 months’ incarceration for the offence of dangerous driving causing death and a 5-year driving prohibition was imposed. The trial judge reviewed the case law for similar offences and found a sentence range in this Province from a fine to 18 months’ incarceration but that the range in other provinces was higher and included periods of imprisonment from 9 months to 6 years.

In imposing a lengthier sentence than sought by the Crown, the judge commented that the sentence was consistent with national trends in sentencing for serious driving offences. [ 36 ] In R. v. Grenke , 2012 ABQB 198 , the offender was convicted of the offences of dangerous driving causing bodily harm and death. Mr. Grenke left a bar with two friends and drove his vehicle in a manner such that he accelerated up to 100 km/hr within one block. He lost control of the vehicle and slammed it into a tree. One of his passengers was killed and the other significantly injured.

A period of four and one-half years’ imprisonment was imposed for the dangerous driving causing death conviction along with a five-year driving prohibition. Mr. Grenke was not a youthful offender and had a prior criminal record and extensive driving record for speeding violations. [ 37 ] In R. v. Roby , 2015 BCSC 1929 , a sentence of 3½ years’ imprisonment and a 5-year driving prohibition was imposed for a conviction for dangerous driving causing death. Mr. Roby and a group of friends were at a campsite and had consumed alcohol. He drove from the campsite in the early morning hours.

The vehicle was involved in a crash in which one of the passengers was killed and another was rendered paraplegic. Mr. Roby, like Mr. Quilty, did not have a valid driver’s licence at the time. He had a youth criminal record and one unrelated conviction as an adult. The facts of the case differ in that there were several aggravating factors that are not present in this case including: evidence of consumption of alcohol before driving; Mr. Roby left the scene of the accident and was involved in the theft of another vehicle in the aftermath of the accident.

Furthermore, when found by police, he lied about his identity. [ 38 ] In R. v. Dunford , 2017 SKCA 1 , the accused was convicted of dangerous driving causing death. He operated a vehicle along a stretch of highway that was undergoing construction. He passed several signs warning of the construction zone including “no passing” signs and warnings of the presence of flag persons in the area. Nonetheless, Mr. Dunford, passed two semi-trailers while driving through the construction zone on a highway. Immediately after passing the semi-trailers, he struck and killed a flag person.

He was sentenced to two years’ less a day imprisonment and the sentence was upheld on appeal. [ 39 ] Having reviewed the jurisprudence, the sentence range proposed by counsel is in keeping with the range of sentences imposed in other cases for this offence with similar fact situations. [ 40 ] Although sentence ranges from other cases are of assistance in determining an appropriate sentence, I am also guided by the words of Wagner, J., in Lacasse , at paragraph 60 , where he noted that sentencing ranges are primarily guidelines and not hard and fast rules.

Ultimately, sentencing must be an individual process focused on the particular offender before the court and the specific circumstances of his or her offence.

disposition AND

SUMMARY [ 41 ] Having reviewed the case law and considered the particular circumstances of Brandon Quilty and the offence as well as the submissions of counsel, I am satisfied that Mr. Quilty’s sentence should be on the lower end of the range proposed by the Crown. Mr. Quilty pleaded guilty. He is a youthful offender with no prior criminal record. He has the support of his family and should be a promising candidate for rehabilitation. Therefore I am imposing a period of incarceration of two years plus one day.

In the circumstances, this sentence reflects the seriousness of the offence committed and the need to deter others from driving in a manner that jeopardizes the safety and lives of others. Driving Prohibition [ 42 ] Subsection 259(2) of the Criminal Code provides the Court with the discretion to impose a driving prohibition for a maximum period of ten years. The Crown and the Defence agree that a driving prohibition is usually imposed for convictions of dangerous driving causing death. A driving prohibition serves the purpose of deterrence as well as affording a degree of protection to the public.

Given the circumstances of this offence and the offender, including his prior driving record, I am prepared to exercise my discretion and order a driving prohibition of five years. DNA Order [ 43 ] The Crown sought a DNA order. The Defence opposed the granting of the order. Pursuant to

section 487.051, I have discretion to order the taking of samples for bodily substances from Mr. Quilty for DNA analysis, if I am satisfied that it is in the best interests of the administration of justice to do so. The Supreme Court of Canada in R. v. C. (R.) , 2005 SCC 61 , noted that the public interest in a DNA order lies in the protection of society through the early detection, arrest, and conviction of offenders.

In deciding whether to make a DNA order, I am to balance the offender’s privacy interests against the public interest by taking into consideration the following factors: the offender’s criminal record, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the offender’s privacy and security of his person. [ 44 ] In Synard , the Crown sought a DNA order. The Court weighed the relevant factors and was not satisfied that a DNA order was necessary and therefore refused to grant the order. A DNA order was also sought and refused in Coombs .

In Roby a DNA order was granted. Mr. Roby, however, did not oppose the Crown’s application for the order. Furthermore, the circumstances surrounding the commission of the offence by Mr. Roby included Mr. Roby providing the police with false information as to his identity. This would be a factor weighing in favour of the public interest in that Mr. Roby attempted to avoid early detection by being deceitful. There are no similar facts in Mr. Quilty’s case that would weigh in favour of granting the order. [ 45 ] In this case, Mr. Quilty is a youthful offender who has promise for rehabilitation.

In considering the nature and circumstances of the offence, I note that although this was a tragic incident, in terms of its consequences, it was nonetheless a singular criminal act on the part of Mr. Quilty. This, combined with the fact that Mr. Quilty has no criminal record, leaves me to question the necessity of a DNA order for the future protection of the public. [ 46 ] On the other hand, I must weigh Mr. Quilty’s privacy interests.

Any DNA order obviously engages the privacy of the person, however, as observed in C. (R.) there is a minimal effect on privacy of the person because the procedure for collecting samples is non- invasive. Informational privacy, however, is seriously engaged in the taking of DNA because DNA contains the highest level of private and personal information. I conclude that if I were to grant a DNA order, there would be a significant impact on Mr. Quilty’s privacy and that this outweighs the public interest of potential risk to the public from Mr. Quilty in the future.

As such, I am not prepared to exercise my discretion in this case. [ 47 ] Mr. Quilty, please stand while I impose your sentence. You are hereby sentenced as follows: 1. To incarceration for a period of two years plus one day; 2. Further, pursuant to subsection 259(2) of the Criminal Code , you are prohibited from the operation of a motor vehicle on any street, road, highway or other public place within Canada for a period of five (5) years commencing from the date of completion of your period of incarceration. [ 48 ] With respect to the driving prohibition, Mr.

Quilty, I direct your attention to subsection 259(4) of the Criminal Code . If you operate a motor vehicle while disqualified from doing so, that is a separate offence for which you may also be charged. _____________________________ Sandra R. Chaytor Justice “SCHEDULE A”

“SCHEDULE A”