R. v. Polley, 2013 NSPC 95

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Polley, 2013 NSPC 95 Date: 20130924 Docket: 2290138 2290139/2290140 Registry: Amherst Between: Her Majesty the Queen v. Stephen Daniel Polley Judge: The Honourable Judge Paul B. Scovil Heard: 24 September 2013, in Amherst, Nova Scotia Written decision: Charge: THAT HE on or about the 29 th day of May A.D. 2010 at, or near Oxford, Nova Scotia, did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ; AND FURTHERMORE on the same date and place aforesaid did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to section 259(4) of the Criminal Code; AND FURTHERMORE on the same date and place aforesaid did operate a motor vehicle on the 104 highway in a manner that was dangerous to the public contrary to section 249(1) (

a) of the Criminal Code . Counsel: Mr. Bruce Baxter, for the crown Mr. H. Edward Patterson, for the defence By the Court :

[1] On May 30, 2013 this court found Mr. Polley guilty of one count of impaired driving contrary to section 253(1)(a), one countof dangerous driving contrary to section 249(1)(

a) and one count of driving while prohibited contrary to section 259(4) of the CriminalCode of Canada. The following is the sentencing of the court in relation to those counts. [2] On May 29, 2010 Mr. Polley left for work from his residence in Cumberland County to a job site in Moncton, NewBrunswick. He travelled with his co-worker and friend. As Mr. Polley was prohibited from driving at the time, his friend drove Mr.Polley’s van to the work site. After completing their work in Moncton the pair began drinking shortly after lunch on the date inquestion. After consuming alcohol for most of the afternoon, Mr.

Polley and his friend left the Moncton area to return home. Mr. Polleywas driving at the time. [3] The van that Mr. Polley was driving was observed by witnesses travelling on the 104 Highway from Sackville, NewBrunswick through to the crash site approximately two kilometres from Oxford, Nova Scotia. The highway traffic was very heavy. Thedriving by Mr. Polley, as described by witnesses, was nothing short of horrendous. He was observed pulling in and out of traffic at highrates of speed and in a manner that placed both himself and his passenger, as well as the public, in the path of imminent harm.

Mr.Polley lost control of the van after swerving in front of a tractor trailer and lost control, causing the vehicle to leave the highway, andpitchpole to a resting spot in the ditch adjacent to the 104. Polley was ejected from the vehicle, while his passenger remained buckled inthe van. Neither Polley nor his passenger suffered any extensive injuries. That no one was killed or injured during the course of Mr.Polley’s driving can be described as nothing short of a miracle. As indicated above, Mr.

Polley was prohibited from driving on the datein question as a result of a prohibition order originating from a previous impaired driving charge. CROWN POSITION ON SENTENCE [4] The crown in this matter recommends a sentence within a range as follows: s. 253(1)(a) 3-4 years s. 249 2-3 years consecutive s. 259 1-2 years consecutive Total: 6-9 years In addition, the crown seeks a 25 year prohibition of driving a motor vehicle anywhere in Canada, together with a secondary DNA order. In making his recommendation, the crown relies heavily on R. v. MacEachern (1990) (NS CA), 96 N.S.R. (2d) 68and R. v.

Naugle 2010 NSPC 11. The crown stresses denunciation and deterrence, both general and specific. DEFENCE POSITION ON SENTENCE [5] Mr. Polley argues that a lesser sentence would be fit and proper. He advocates the following range of sentence: s. 253(1)(a) 10-12 months s. 259(4) 10-12 months s. 249(1) 4-6 months

Total: 24-30 months Mr. Polley argues that he should be prohibited from driving for a period of ten to 15 years. Mr. Polley cites R. v. Riley [1996] NSCA 183, R. v. Squires [1995] NLCA 33, R. v. Mascarenhas (2000), 9 M.V.R. (4 th ) 311 and R. v. Woodward [1992] NLCA 211. There was no objection by Mr. Polley to the imposition of a DNA order. PRE-SENTENCE REPORT [ 6 ] Before the court is a pre-sentence report indicating that Mr. Polley is a 41 year old male who resides in the Pugwash Junction area of Cumberland County, Nova Scotia.

He is currently in a relationship with a common-law wife, by which he has had three children. His family background appears to be unremarkable. [ 7 ] Mr. Polley left school after repeating grade 7 twice. He has engaged in a number of work training opportunities which have been obtained through various employee positions. He is currently employed with Tartan Interior Drywalling and has been so employed for the last five years. In that position he works as a drywaller. His health background is again unremarkable, save and except for alcohol related issues.

He reports having spent seven days in a detox unit in Pictou County as a result of prior impaired driving convictions. He reports regular binge drinking, which he describes as typical. Despite that, he denied having a history of serious alcohol abuse. Despite a number of impaired driving convictions, which will be described later, and the current offences for which he has been convicted, Mr. Polley continues to drink alcohol. He describes himself now as an occasional drinker. The accused expressed some remorse when interviewed in the pre-sentence report. [ 8 ] Mr.

Polley raised some concerns in relation to the pre-sentence report before the court. Firstly he expressed concerns regarding the opinions placed in the pre-sentence report of Corporal Joe Ryan with the Oxford R.C.M.P. Mr. Polley also indicated that the pre-sentence report referred to the accused having been convicted under 253(1)(b). Obviously Mr. Polley has not been convicted under 253(1)( b), and that error in the pre-sentence report has not affected the court sentencing. Additionally I have not considered the comments of Corporal Ryan.

RECORD [ 9 ] The pre-sentence report revealed that the accused has the following record of criminal and provincial offences: OFFENCE DATE DATE SENTENCED SENTENCE MVA 287(2) 16/09/2005 09/01/2006 $500 fine CC 259(4) 06/06/2005 09/01/2006 4 months concurrent plus 6 months probation CC 254(5) 05/06/2005 09/01/2006 4 months consecutive MVA 230(1) 11/12/2004 09/01/2006 $1000 fine

MVA 287(2) 11/12/2004 09/01/2006 $500 fine CC 253(a) 11/12/2004 09/01/2006 3 months concurrent plus 6 months probation CC 86(1) 11/12/2004 09/01/2006 1 month concurrent plus 6 months probation CC 259(4) 22/01/2001 31/05/2001 90 days consecutive WLA 68 01/12/2000 08/01/2001 $3500 fine CC 254(5) 01/12/2000 29/03/1999 90 days consecutive; 3 year driving prohibition CC 259(4) 20/02/1999 29/03/1999 30 days concurrent CC 253(b) 21/11/1998 29/03/1999 90 days concurrent; 3 year driving prohibition CC 733.1(1) 21/11/1998 29/03/1999 30 days concurrent WLA 68 21/11/1998 18/01/1999 $2500 fine WLR 11(2) 21/11/1998 18/01/1999 $100 fine CC 259(4) 01/01/1998 23/03/1998 $499 fine; 12 months probation CC 253(b) 25/05/1997 11/08/1997 $499 fine; 3 year driving prohibition MPFR 33 20/07/1997 28/07/1997 $300 fine WLA 74(b) 30/11/1994 24/10/1995 $300 fine CC 100(4) 27/05/1995 31/07/1995 3 year weapons prohibition CC 259(4)(a) 07/10/1993 13/12/1993 $249 fine CC 253(b) 07/10/1993 13/12/1993 $999 fine; 2 year driving prohibition CC 266(b) 04/04/1992 13/08/1992 12 months probation

CC 259(4) 04/04/1992 13/08/1992 $250 fine MVA 90 20/11/1989 14/02/1992 $100 fine CC 259(4) 08/10/1991 27/01/1992 $250 fine CC 430(4) 09/06/1991 12/08/1991 2 months concurrent CC 253(b) 27/07/1991 12/08/1991 2 months concurrent; 1 year driving prohibition MVA 287(2) 27/04/1991 12/08/1991 $100 fine [ 10 ] While not all of Mr. Polley ’ s record is significant, the four prior impaired driving, three refusals of the breathalyzer and eight driving while suspended charges are of significance.

Additionally, his four prior provincial charges for illegal driving show a disregard for following laws related to keeping those individuals off the roads who hold no proper license. STATUTORY PROVISIONS [ 11 ] A large portion of the applicable law relating to sentencing in Canada has been codified by Parliament in

section 718 of the Criminal Code which states as follows: 718. The fundamental purpose of sentencing is 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; (

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 and to the community. [ 12 ] Here, denunciation and deterrence are front and centre in sentencing Mr. Polley. Appeal courts across Canada have frequently commented on the ravages of impaired driving. Players in the criminal justice system know firsthand of the horrific consequences of the degree of impaired driving and dangerous driving that Mr. Polley exhibited. The record of Mr. Polley shows that past sentences have done little to deter this specific accused from impaired driving and driving while prohibited.

Clearly the only manner in which to give impetus to the principles enunciated above in the Criminal Code is for a court to impose a significant custodial sentence on this offender. [ 13 ] Further provisions of

section 718 of the Criminal Code of Canada are also relevant to sentencing in this instance. They include the following:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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, ... (

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 14 ] The concepts of proportionality, totality and concurrent and consecutive sentences in relation to cases of habitual impaired drivers were given a full review by Judge Hoskins of this court in R. v. Naugle [2010] NSPC 11. AGGRAVATING CIRCUMSTANCES OF THE OFFENCES [ 15 ] There are a number of aggravating features which come into play when considering the offences before the court.

These include the following: 1. The evidence showed that the amount of traffic on the highway on the date in question was extremely busy even for a 100 series highway. It should be noted that all traffic exiting and entering the province of Nova Scotia funnels its way through the stretch of the 104 involved in this matter. 2. The extreme recklessness of the driving exhibited by the accused is another aggravating feature present here. 3. From the evidence obtained through Mr.

Smith, the passenger with the accused and who was consuming alcohol with the accused prior to the offence, the accused was in a highly intoxicated state. 4. Finally, one has to consider the extremely dismal record of the accused in relation to both impaired driving offences and those of driving while prohibited. 5. The accused reported a history of regular binge drinking, which he characterizes in his pre-sentence report as typical. Despite that, and despite his record and the obvious effect that would have on his life and that of his family, Mr. Polley denied a history of serious alcohol abuse.

At sentencing, Mr. Polley indicated that he had virtually stopped drinking. In his pre-sentence report he indicates he drinks occasionally. This can only indicate to the court that Mr. Polley has not come to recognize the extreme difficulties that his

interaction with alcohol has on both himself, his family and the community. MITIGATING CIRCUMSTANCES OF THE OFFENCES AND THE OFFENDER [16] 1. There are no mitigating factors with respect to the circumstances of the offences before the court. 2. The accused maintained a steady employment record. REVIEW OF APPLICABLE CASE LAW [17] As indicated earlier, the crown cited R. v. Buffet (1989) (NS CA), 93 N.S.R. (2d) 324 (NSCA); R. v.MacEachern (1990) 96 N.S.R. (2d); R. v. Muise (1990) (NS CA), 99 N.S.R. (2d) 186 (NSCA); R. v. Nickerson (1991) (NS CA), 101 N.S.R. (2d) 243 (NSCA) and R. v.

Naugle [2010] NSPC 11 affirmed by R. v. Naugle [2011] NSCA 33. Mr. Polley put forward R. v. Riley; R. v. Squires; R. v. Mascarenhas and R. v. Woodward. [18] Below are a number of synopses of drinking and driving cases that are provided to give some background of the variation ofsentences related to those before the court. In R. v. Naugle (supra) the accused is charged with failing to remain at the scene of an accident, as well as impaired driving andoperating a motor vehicle while prohibited.

The accused had an atrocious 32 year criminal history, including 22 impaired driving relatedconvictions and over 50 other driving related offences. The offences occurred on a busy highway, 27 days after the accused was releasedfrom prison for committing similar offences. Mr. Naugle received eight years six months custodial sentence, together with a lifetimedriving prohibition. R. v. Morine [2011] NSSC 46. The accused was charged with failure to comply with a breath demand, impaired driving causing bodilyharm, impaired driving causing death and assaulting a police officer.

The accused had no prior record and was driving his own car. Heallowed passengers in the vehicle after consuming an excessive amount of alcohol. The accused drove in a manner that caused him tolose control of the vehicle, and fled the scene. He insulted the officers and spit in the officer’s face. The accused received five years forimpaired driving causing death, nine months for impaired driving causing bodily harm, concurrent, three months for assaulting a policeofficer, concurrent, and one month for failure to comply with a breath demand, concurrent. He further received a ten year drivingprohibition. R. v.

MacArthur [2009] NSPC 61. The accused was convicted of impaired driving. He had three previous convictions for impaireddriving in the past 20 years. He received 18 months probation, together with a two year driving prohibition, based on a curativetreatment discharge. R. v. Lohnes [2007] NSCA 24. The accused was charged with impaired driving and driving while prohibited. His record included 15Criminal Code matters, consisting of six prior convictions for driving while prohibited, one breathalyzer refusal and one breach ofprobation.

He additionally had ten Motor Vehicle Act convictions, six of which were for driving while disqualified. The accusedreceived six months custody concurrent, together with a 24 month period of probation, and was prohibited from driving for a 44 monthperiod. R. v. Hamilton [2008] NSSC 217. The accused was convicted for impaired driving causing bodily harm. The accused had no priorrecord. The driving resulted in damage to three separate motor vehicles and various individuals. The accused’s blood alcohol level wasdouble the legal limit.

The accused received a six month conditional sentence, together with a one year period of probation. He wasprohibited from driving for two years.

R. v. Davison [2006] NSPC 73. The accused was charged with impaired driving causing bodily harm. The accused had no prior record. He was of a youthful age, had a blood alcohol level of over 0.15 and was driving on the wrong side of the road. The accused received an18 month conditional sentence, together with six months probation. He was prohibited from driving for five years. R. v. Jesso [2006] NSPC 30. The accused was charged with impaired driving causing bodily harm. He had a high blood alcohol contentlevel, with the victim receiving serious injuries. He had no prior record.

He was sentenced to a 20 month conditional sentence order anda one year driving prohibition. R. v. Cromwell [2005] NSCA 137. The accused was charged with impaired driving causing bodily harm, together with a breach ofrecognizance. She had no related record. There were significant injuries received by the complainant. There were no organized stepstaken by the defendant to address ongoing substance abuse issues. The accused’s actions showed a continuing insensitivity to the plightof the victims and the failure to appreciate the consequences of her actions. No prior record.

Four months custody on the impaireddriving charge and one month consecutive on the breach of recognizance charge. The court placed an additional one year probation witha two year driving prohibition. R. v. MacLeod [2004] NSCA 31. The accused was charged with impaired driving causing bodily harm, as well as leaving the scene ofan accident. The accused had a record for impaired driving causing death, possession of stolen property and refusal of the breathalyzer. The accused received a two year sentence and a driving prohibition. R. v. Morash [2011] NSSC 99.

The accused was convicted of two counts of impaired driving causing bodily harm and one of impaireddriving causing death. He received six years for impaired driving causing death and three years for impaired driving causing bodilyharm. The accused had four prior alcohol related convictions. R. v. Cooper [2007] NSSC 115. Accused charged with two counts of impaired driving causing death. The accused had datedconvictions for impaired driving. He was sentenced to seven years custody on each count to run concurrent. Lifetime driving prohibitionwas ordered. R. v. Dubois [2011] N.S.J. No. 529.

Accused convicted of impaired driving, driving while disqualified, obstruction of justice, impairedoperation causing bodily harm and failure to appear. The accused had a criminal record that consisted of related offences. 27 monthscustody imposed, together with a ten year driving prohibition. R. v. Nickerson (1991) (NS CA), 101 N.S.R. (2d) 243 (NSCA). Accused pled guilty to a charge of impaired drivingcausing death and a charge of impaired driving causing bodily harm. Favourable pre-sentence report with a youthful offender. TheCourt of Appeal reaffirmed the principle of general deterrence.

Sentence of five years imprisonment. R. v. Buffett (1989) (NS CA), 93 N.S.R. (2d) 324 (NSCA). The accused is charged with impaired driving causingbodily harm. The facts show that he was driving erratically and eventually pulled out, passing another vehicle on the two lane bridge,colliding head-on with oncoming traffic. The accused had a blood alcohol level of .160 to .170. He had no prior record, with a goodeducation and demonstrated remorse. Sentenced to six months custody on appeal. R. v. MacEachern (1990) (NS CA), 96 N.S.R. (2d) 68 (NSCA). The accused was convicted of criminal negligencecausing death.

A second count alleging an offence under section 255(3) was stayed. The accused was driving under the influence ofalcohol when he struck a nine year old child, causing his death. There was a large amount of vehicle and pedestrian traffic in the area. On appeal the accused was sentenced to five years custody and a ten year driving prohibition. R. v. Muise (1990) (NS CA), 99 N.S.R. (2d) 186 (NSCA). The accused was convicted of criminal negligence causingbodily harm. He drove through a four way stop intersection at a high rate of speed, colliding with another vehicle.

The accused wasintoxicated at the time and driving a mechanically defective vehicle. He was disqualified from driving at the time of the accident, andhis record included other driving offences. On appeal the sentence was increased to six months custody, together with probation.

R. v. Bear [2007] S.J. No. 611 (SKCA) . The offences involved Bear being in a residential area and striking a snow bank. The accused was found in the vehicle, along with open alcohol in the passenger seat. Breath samples indicated a blood alcohol level of double the legal limit. He had a lengthy criminal record, 75 convictions, including 20 prior convictions for driving while disqualified, and 15 years plus one day imprisonment for impaired driving conviction at the time.

The sentence was set at four years imprisonment for the impaired driving, two years concurrent for operating a motor vehicle while disqualified. He had a two year driving prohibition. [ 19 ] The courts regularly recognize that the imposition of a just and appropriate sentence can be an extremely difficult task. It involves imposing a sentence that reflects the circumstances of the specific offence, the individual attributes of the offender before the court, and adherence to both statutory requirements and those precedents set out by the case law.

There is no set formula for a court to follow, and in cases such as this, there is a wide range of sentences that may serve as guides. As has been indicated earlier this sentencing is a delicate matter of stressing denunciation, deterrence, totality and proportionality. [ 20 ] In arriving at the following sentences, I have considered closely the circumstances of the accused, the specifics of the offence, statutory guidelines, case law and the submissions of the two counsel who appeared in the matter.

In stressing both specific and general deterrence, I impose the following sentences: CC 253(a) 2 years custody consecutive CC 259(4) 1 year custody consecutive CC 249(1) 2 years custody consecutive [ 21 ] The accused will therefore serve a five year period of custody in a federal institution. I will also prohibit him from driving anywhere in Canada, upon his release from custody, for a 20 year period. There will be a secondary DNA order as well. Both the prohibition of driving and the DNA order will attach to the 253(

a) count. PCJ