R. v. Whittle, 2021 NLSC 50

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Whittle , 2021 NLSC 50 Date : April 13, 2021 Docket : 201904G0181 Her Majesty The Queen v. Thomas Whittle Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Sentencing Hearing: April 8, 2021 Date of Oral Judgment: April 12, 2021

Summary: Sentences of three years’ imprisonment were imposed on convictions for impaired driving causing death and dangerous driving causing death. The sentences were ordered to be served concurrently. In addition, a four year driving prohibition was imposed on each offence also to be served concurrently. Appearances:

Renée A. Coates Appearing on behalf of Her Majesty The Queen Thomas Whittle Appearing on his own behalf Randolph J. Piercey, Q.C. Appearing as Amicus Curiae Authorities Cited: CASES CONSIDERED: R. v. Bernshaw (SCC), [1995], 1 S.C.R. 254; R. v. Pittman (1998), (NLSC), 173 Nfld. & P.E.I.R. 107, 41 W.C.B. (2d) 228 (Nfld. S.C.(T.D.)); R. v. Cook, 2012 ONSC 3265; R. v. Joyce, 2019 NLSC 77; R. v.Ralph, 2007 NLTD 42; R. v. Cluney, 2013 NLCA 46; R. v. Alexander, 2010 NLTD 96; R. v. Thistle, 2015 NLTD(G) 44; R. v. Hynes,2006 NLCA 10; R. v. Woodward (1993), (NL CA), 108 Nfld. & P.E.I.R. 240, 83 C.C.C. (3d) 75 (Nfld.

C.A.); R. v.Howe, 2007 NBCA 84; R. v. Luskin, 2012 ONSC 1764; and R. v. Nasogaluak, 2010 SCC 6 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; and Highway Traffic Act, R.S.N.L. 1990, c.

H-3 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Thomas Whittle was convicted by a jury on January 25, 2021 of the following three offences: Count #1 on or about the 19th day of February, 2017, at or near Humber Valley Resort, in the province of Newfoundland and Labrador, while hisability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle and thereby did cause the death of Justyn Pollard,contrary to section 255(3) of the Criminal Code; Count #2 on or about the 19th day of February, 2017, at or near Humber Valley Resort, in the province of Newfoundland and Labrador, havingconsumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundredmillilitres of blood, did while operating a motor vehicle cause an accident resulting in death to Justyn Pollard, contrary to section255(3.1) of the Criminal Code; Count #3 on or about the 19th day of February, 2017, at or near Humber Valley Resort, in the province of Newfoundland and Labrador, didoperate a motor vehicle in a manner that was dangerous to the public, and thereby caused the death of Justyn Pollard, contrary to section249(4) of the Criminal Code; [2] The weekend of February 17, 2017 was supposed to be one of fun for a group of people from the east coast of this Provincewho came over to the west coast for snowmobiling, skiing, snowboarding, and a festival called Jibfest at Marble Mountain.Unfortunately, the weekend turned tragic in the early morning hours of Sunday, February 19, 2017 when the fateful decision was madeby Mr.

Whittle and Justyn Pollard to go for a ride on snowmobile. That ride resulted in a collision between the snowmobile, which Mr.Whittle was operating and on which Mr. Pollard was a passenger, and a taxi that was bringing some people to Humber Valley Resort.

The collision resulted in the death of Mr. Pollard and Mr. Whittle being before the Court today for sentencing. [ 3 ] In arriving at an appropriate sentence in any case, judges should be guided by the provisions of the Criminal Code , R.S.C. 1985, c. C-46 that outline the purpose, objectives, and principles of sentencing. In this regard,

section 718 provides: 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. [ 4 ] In addition,

section 718.1 of the Criminal Code provides for the principle of proportionality: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 5 ] Finally,

section 718.2 outlines a non-exhaustive list of other sentencing principles which must be taken into consideration. It states: 718.2 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 gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (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 orreleased 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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [6] Impaired driving offences are all too common in this Province and throughout Canada and the impact on our society and mostimportantly victims of these crimes cannot be overstated. This has been long recognized by courts in Canada. Cory, J. of the SupremeCourt of Canada in the case of R. v.

Bernshaw (SCC), [1995], 1 S.C.R. 254 said at paragraph 16: 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. . . . [7] Later at paragraph 19, he said: 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. The gravity of the problem and its impact on Canadian society has been so great that CriminalCode amendments were enacted aimed at eliminating or, at least, reducing the problem. [8] Those comments were made in 1995.

While I have no statistics before me to indicate the prevalence of impaired drivingrelated accidents, injury, and death today, there is no doubt that it remains a significant societal problem. [9] In terms of the principles of sentencing which are most important in determining an appropriate sentence in a case such as this,I find guidance in the comments of my colleague, Adams, J. in his decision in R. v. Pittman (1998), (NL SC), 173Nfld. & P.E.I.R. 107, 41 W.C.B. (2d) 228 (Nfld. S.C.(T.D.)) where he said at paragraph 23: 23 The principles of specific and general deterrence are key factors in cases such as this.

The carnage on our highways from drinking anddriving is inexcusable. This is a completely preventable occurrence. People's lives are devastatingly altered forever by such activity. pre-sentence report [10] The Pre-Sentence Report was rather brief but was of assistance to the Court. Mr. Whittle appears to have had a very positiveupbringing. He completed high school and subsequently completed a plumber/pipefitter program. He has a very strong work history andhis family and long-term girlfriend are very supportive of him.

He was assessed to be a suitable candidate for community supervision.All of the foregoing are very positive factors in Mr. Whittle’s favour; however, there is one factor mentioned in the Pre-Sentence Reportwhich reflects negatively on Mr. Whittle. The Report indicates that during the interview with the Adult Probation Officer who preparedthe Report, Mr. Whittle expressed some resentment towards his conviction and the legal system. This is consistent with comments madeby Mr.

Whittle during pre-trial appearances and at trial regarding the impact of the charges on him. victim impact statements [11] The Court received Victim Impact Statements from the following individuals: a. Sherry Pollard – the mother of Justyn Pollard; b. Joy Pollard – the grandmother of Justyn Pollard; c. Sheldon Pollard and Paula Hodder – the uncle and aunt of Justyn Pollard; and d. Alexandra MacKenzie – a close friend of Justyn Pollard.

[12] The Court had written Victim Impact Statements from these individuals and also heard from them at the sentencing hearing.Sherry Pollard and Alexandra MacKenzie testified via video link and Joy Pollard, Sheldon Pollard, and Paula Hodder testified viatelephone link. [13] From seeing and hearing these individuals and reading their Victim Impact Statements, there is no doubt that they have allsuffered an immeasurable loss.

It was heartbreaking to hear them describe the pain that Justyn’s death has meant for them, especially inthe case of Sherry Pollard who lost her only child and Joy Pollard who lost her only grandchild. Their lives will never be the same. TheCourt can do very little, if anything, to alleviate their pain but I hope that in some small way the conclusion of these proceedings willhelp them in dealing with their unimaginable loss. submissions on sentence The Crown [14] The Crown has submitted that an appropriate sentence is a term of imprisonment of three years combined with a drivingprohibition of four years from Mr.

Whittle’s release from jail. In addition, the Crown has submitted that the Court should impose what iscommonly referred to as a DNA Order under

section 487.051 of the Criminal Code. [15] The Crown filed and relied on the following cases in support of its submission: a. R. v. Cook, 2012 ONSC 3265; b. R. v. Joyce, 2019 NLSC 77; c. R. v. Ralph, 2007 NLTD 42; and d. R. v. Cluney, 2013 NLCA 46. [16] The Crown in its submission argued there were a number of aggravating factors in this case. These included Mr. Whittle’sattitude, specifically his belief as stated in the Pre-Sentence Report that neither alcohol nor drugs are a problem for him and that he doesnot feel that he needs any kind of programming. The Crown also argued that Mr.

Whittle had not accepted responsibility for the offenceshe has been convicted of by not expressing remorse and showed poor insight in that his focus appeared to be on how the tragic events ofFebruary 19, 2017 had impacted him as opposed to Justyn Pollard and his family. The Crown also pointed out that while Mr. Whittle hasno prior criminal record, he has convictions for three prior offences of speeding under the Highway Traffic Act, R.S.N.L. 1990, c. H-3. Amicus [17] The submission made to the Court by the Amicus was that the position taken by the Crown was reasonable.

The Amicus filedthe following cases in support of his submission on sentence: a. R. v. Alexander, 2010 NLTD 96; b. R. v. Thistle, 2015 NLTD(G) 44; c. R. v. Hynes, 2006 NLCA 10; d. R. v. Joyce, 2019 NLSC 77 (also relied on by the Crown); e. R. v. Cluney, 2013 NLCA 46 (also relied on by the Crown); and f. R. v. Woodward (1993), (NL CA), 108 Nfld. & P.E.I.R. 240, 83 C.C.C. (3d) 75 (Nfld. C.A.). [18] The Amicus pointed out some of the same aggravating factors as the Crown but also pointed to certain mitigating factors. Inparticular, the Amicus pointed out that Mr.

Whittle has a supportive family and partner, no prior criminal record, and demonstrated asignificant ability to obey the law by being on strict terms of release without any violations since being charged. Mr. Whittle [19] Mr. Whittle referred to two cases, which he had located on CanLII, in his submission to the Court on the appropriate sentence.He did not have copies of the cases and could not provide citations for same. These cases were R. v. Howe, which he said was a 2007case from Ontario and R. v. Luskin, a 2012 case. The Howe decision referred to by Mr.

Whittle is in fact a 2007 New Brunswick Court ofAppeal decision (R. v. Howe, 2007 NBCA 84) where the Court varied a sentence on a charge of impaired driving causing death of twoyears less a day to be served in the community to a sentence of three years’ imprisonment. The Luskin decision is from Ontario and canbe found at 2012 ONSC 1764. It is an impaired driving case; however, the facts were significantly more aggravating than those currentlybefore the Court. Mr.

Luskin received an effective sentence of eight years’ imprisonment made up of a credit of four years and tenmonths for time served prior to trial and then an additional three years and two months of imprisonment on sentencing after guilty pleas. [20] These cases are not particularly helpful to Mr. Whittle; however, as a layperson I would not expect him to be able to recognizethat. In any event, they are from jurisdictions other than Newfoundland and Labrador and I consider the prior sentencing decisions fromthis Province to be more useful to the Court in arriving at an appropriate sentence. [21] Mr.

Whittle in his comments to the Court suggested an intermittent type sentence and he questioned the Crown’s request for afour year driving prohibition on the basis that his past employment has required him to drive. He also said that he could not comprehendthe loss of the Pollard family and that he was sorry for their loss and the pain they have endured.

analysis and disposition [22] Earlier in my decision I referred to the comments of Cory, J. of the Supreme Court of Canada in R. v. Bernshaw and mycolleague, Adams, J., in R. v. Pittman. I agree wholeheartedly with their comments. Offences such as these for which Mr. Whittle hasbeen convicted are completely preventable. I wonder what it will take for some people to get the message that driving a motor vehiclewhile you are impaired can be a life altering decision not only for the person driving but for so many innocent people.

These cases arestill all too common which would seem to indicate that what we have been doing so far as a society to combat the problem has not fullyworked. It is a complex problem with no easy solution and I sincerely hope that at some point people get the message so no otherfamilies have to endure the pain and loss the Pollard family has had and will continue to endure. [23] The Crown suggested that the range of sentence for offences like those Mr. Whittle has been convicted of is one to four years.This is based on our Court of Appeal decision in R. v.

Cluney, which I referred to earlier, and, in particular, the comments of Barry, J.A.at paragraph 21 thereof. All of the cases filed by the Crown and the Amicus fall within this range. In the R. v. Joyce, R. v. Alexander, R.v. Cluney, and R. v. Woodward cases, the sentence was two years or two years less a day for the impaired driving causing death charge.In each of those cases, there was a guilty plea and significant evidence of remorse. Mr.

Whittle is not to be punished harder because hepleaded not guilty and proceeded to trial; however, at the same time, he does not get the benefit of a guilty plea as a mitigating factor. [24] In terms of remorse, Mr. Whittle did say he was sorry for the Pollard family’s loss but I do share the concerns expressed by theCrown that Mr. Whittle lacks insight in terms of his responsibility for what happened in the early morning hours of February 19, 2017and I am not convinced that he fully accepts responsibility for his actions that day.

I say that because on a number of occasions at pre-trial appearances and during his trial Mr. Whittle complained of the impact of the collision on him, including the conditions he has beensubject to since charged with the offences before this Court and how this has caused him to miss a number of important events such asweddings. While I have no doubt that Mr.

Whittle and his family have been significantly impacted by the events of February 19, 2017,this impact pales by comparison to the loss of life suffered by Justyn Pollard and the resulting impact on his family. [25] Earlier I referred to certain provisions of the Criminal Code which outline the purpose, objectives, and principles of sentencing.These include the proportionality principle which requires that a sentence be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [26] In R. v.

Nasogaluak, 2010 SCC 6, Lebel, J. of the Supreme Court of Canada for a unanimous Court gave a good explanation ofthe meaning of the proportionality principle in the context of sentencing at paragraph 42: 42 For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society'scondemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [27] Let there be no mistake that the offence of impaired driving causing death is an extremely serious offence. While there was nointent to cause Mr. Pollard’s life to be taken, Mr. Whittle intentionally engaged in extremely reckless and risky behaviour by operatingthe snowmobile that morning. The result was the death of Mr. Pollard.

This intentional, reckless, and risky behaviour demonstrates ahigh degree of moral culpability. [28] Notwithstanding that I do not believe Mr. Whittle has good insight into his degree of responsibility for the death of JustynPollard, I highly doubt that he will ever again engage in the type of behaviour that led him to be before the Court. As a result, I do notbelieve specific deterrence is a significant factor for consideration in determining an appropriate sentence.

However, denunciation andgeneral deterrence remain important sentencing objectives in a case such as this. [29] It is my view that sentences in cases of impaired driving causing death must primarily try to achieve two goals. Firstly, theymust demonstrate that impaired driving is completely unacceptable in our society.

Secondly, they must send a clear message to thosewho might ever think about driving after drinking, as well as those who may be in a position to persuade them not to do so, that therewill be significant consequences if the wrong decision is made. [30] Having considered the facts of this case, including the comments I have made earlier regarding Mr. Whittle and the principles,purposes, and objectives of sentencing, I have decided that a fit and proper sentence here is the sentence recommended by the Crown.Like the Amicus, I believe that to be reasonable considering all the circumstances of this case.

In terms of Mr. Whittle’s submissionregarding an intermittent sentence, such a sentence is only available for periods of incarceration up to 90 days and a sentence of thatlength would be inadequate in this case. [31] Therefore, the sentence on the impaired driving causing death charge shall be three years’ imprisonment. As for the charge ofoperating while over 80 causing death, that charge is subject to the principle established in R. v. Kienapple (SCC),[1975], 1 S.C.R. 729, that two convictions cannot result from the same act.

Accordingly, a conditional stay is entered in respect of thatcharge based on the Crown submission that it wished the stay to be entered on this charge as opposed to the charge of impaired drivingcausing death. The third charge is dangerous driving causing death. Both the Crown and Amicus submitted that whatever sentence wasimposed in respect of this offence should be served concurrently with the sentence imposed on the charge of impaired driving causingdeath. I agree that a concurrent sentence is appropriate in respect of this offence.

The sentence shall be the same as for the offence ofimpaired driving causing death, namely three years.

[ 32 ] In addition, there shall be a driving prohibition pursuant to the applicable Criminal Code provisions of four years on each of the offences of impaired driving causing death and dangerous driving causing death. Those driving prohibitions shall begin upon Mr. Whittle’s release from imprisonment and are to run concurrently. I point out to Mr.

Whittle that the period of driving prohibition under the Highway Traffic Act is greater than the four years I am imposing but it will be up to the Registrar of Motor Vehicles for this Province and not this Court to deal with that issue. [ 33 ] The Crown has requested that I make what is commonly called a DNA Order. It would require Mr. Whittle to provide a DNA sample for inclusion in a national databank. The offences of which Mr. Whittle has been convicted are not offences where a DNA Order is mandatory. Instead, it is a discretionary order in respect of these offences. These were serious crimes but Mr.

Whittle has no prior criminal record and there is nothing to indicate a propensity toward criminal behaviour on his part. Apart from the incident which led to him now being before the Court, Mr. Whittle appears to have been a responsible member of society. Considering these factors and the impact a DNA Order has on the privacy of a person, I decline to make a DNA Order. [ 34 ] I remanded Mr. Whittle into custody on Thursday, April 8, 2021 after the sentencing submissions were completed. He has therefore been in custody for five days and he is entitled to 1.5 days credit for each day on remand.

Rounded up, this equates to eight days credit which shall be applied against the sentence I am imposing.

summary [ 35 ] In

summary, I order a period of three years’ imprisonment on each of the offences of impaired driving causing death and dangerous driving causing death to be served concurrently. Mr. Whittle shall be entitled to eight days credit for his time on remand. The charge of operating while over 80 is subject to a conditional stay on the basis of the Kienapple principle. There shall be a four year driving prohibition on each of the impaired driving causing death and dangerous driving causing death offences to be served concurrently, the said prohibition to commence upon Mr. Whittle’s release from prison. _____________________________ George L. Murphy Justice