R. v. MacKenzie, 2012 NSPC 19

•••••••••••••••• PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacKenzie, 2012 NSPC 19 Date : 20120312 Docket : 2321739, 2321740 Registry : Pictou Between : Her Majesty the Queen v. Alexander James MacKenzie Sentencing Decision Judge : The Honourable Paul Scovil Heard: March 12, 2012 Charges: On or about the 2 nd of May, 2011, at or near New Glasgow, County of Pictou, Nova Scotia, did steal the property of Elections Canada of a value not exceeding five thousand dollars, contrary to

Section 334 (

b) of the Criminal Code of Canada , And furthermore, on the same date and location; Did commit mischief by willfully damaging, without legal justification or excuse, and without colour of right, property of Elections Canada, the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code of Canada .

Counsel: Patrick Young, for the Nova Scotia Public Prosecution Service Alexander James MacKenzie, self-represented [ 1 ] This is the sentencing of Alexander James MacKenzie in relation to two counts under the Criminal Code wherein he was charged that, on or about the 2 nd day of May, 2011, at or near New Glasgow, Nova Scotia did steal property of Elections Canada of a value not exceeding five thousand dollars contrary to

Section 334 (

b) of the Criminal Code .

Further he was charged on the same date and at the same place, did commit mischief by damaging the property of Elections Canada, the value which did not exceed five thousand dollars, contrary to

Section 430 of the Criminal Code . [ 2 ] The facts are quite simple. On May 2, 2011 during the course of a Canadian federal election, the accused targeted a specific polling station in New Glasgow, Nova Scotia, as part of his protest against the federal government. The accused sought to remove a ballot box and the cast ballots therein for the purpose of calling attention to his protest against the government settling a claim with local First Nations Peoples over pollution damage in the waters of Pictou Landing area.

His complaint is that non-natives did not receive any compensation. [ 3 ] The accused entered the polling station and grabbed the ballot box containing a large number of cast ballots. In full view of witnesses, he left the polling station with the ballot box. He was chased outside by a elections ’ officials where a struggle ensued. The accused dashed the ballot box to the ground causing it to burst open, spilling ballots into the street. The box was damaged but the ballots were retrieved. It is surprising that the accused was not also charged with assault.

It was clear the accused ’ s stated intention was to take the box and ballots and destroy them. [ 4 ] In reality, the offence had far more to do with the accused drawing attention to himself. He has taken on the moniker of “ Ballot Box Bandit ” , and appears to revel in the press coverage that has resulted from this and past similar offences. He had the temerity to attend at trial with a leather vest emblazoned on the back with the words “ Ballot Box Bandit ” .

At trial, he has expressed no remorse clearly indicating that, not only did he commit the offence at trial, but that he intended to do it again at the next available election. [ 5 ] A Pre-Sentence Report prepared reveals that the accused is a 62 year old male with a long standing attachment to the workforce. He is married with two grown children and five grandchildren. In the P.S.R., the accused showed no remorse, and, again advised that he will do this again.

One of the accused ’ s main complaints at both trial and in the P.S.R., is that Elections Canada should have trained workers not to interfere with his thefts. [ 6 ] As indicated earlier, it is the Court ’ s opinion that Mr. MacKkenzie ’ s actions have all to do with the aggrandizement of Mr. MacKenzie as opposed to any legitimate protest. With the many valid and legal methods of protest available to the accused in our free and democratic society, he chose to ignore those routes. Instead, he attempted to disenfranchise the number of voters who cast their ballot at that polling station.

Had he not been thwarted, he would denied those citizens their right to vote. Some of those votes may have ben cast in a manner to lawfully express a protest of their own against the government. To take that right away from citizens, strikes at the very heart of our democracy and can, in no way, be defended. This crime was a serious one. [ 7 ] In sentencing, Parliament has codified to some extent the relevant principles. A court must consider

Section 718 of the Code which sets out 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.

[ 8 ] Further,

Section 718.1 states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ] And finally,

Section 718.2 indicates: 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 any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender ’ s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, ( iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence 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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 10 ] As is clear from my comments, the unlawful conduct here is serious and must be deterred. Both general and specific deterrence are at play here. This sentence must not only deter others, but also deter this accused. Relevant is his expressed desire to continue this conduct as well as his only record of prior criminal offences which are all related to past identical behaviour. The accused was convicted of mischief under

Section 430 on December 19, 1993 for a similar offence for which he was fined $1000.00. On March 28, 2001 he was sentenced for a similar theft for which he received a 30 day Conditional Sentence followed by 12 months Probation. Finally on May 12, 2006, he was convicted of both theft and mischief again for this type of fact scenario for which he received a 22 month- suspended sentence and Probation. [ 11 ] Provisions as to sentencing that is available are comparable under the Elections Act where Section 163(1)(2) makes it an offence to have ballots in his possession without lawful authority. Further, 163(2)(

c) makes it an offence to take a ballot out of a polling station, and 163(2)(

d) makes it an offence to destroy a ballot box or ballot.

Section 489 of that Act prescribes penalties for proceedings by

summary conviction to a period of up to one year in custody or a fine of not more than $5,000.00, or both. [ 12 ] A search of case law has not rendered up any helpful precedence. I do note R. v. Aftergood [2007] A.J. No. 820 , where the accused supplied, without lawful authority, special ballots to another individual. There the accused was a husband of a municipal candidate who received 1266 special ballots which he delivered to his wife ’ s campaign manager. The Alberta Provincial Court sentenced him to 14 days custody intermittent together with a $2000.00 fine.

[ 13 ] Given the record of the accused and the other aggravating features of his expressed intent to continue these types of offences no other sentence other that custody is appropriate. He has already received a short custodial sentence in the past which has not deterred him. I find a fit and appropriate sentence on each charge is a 120-day period of custody, concurrent to each other, and consecutive to anything else, followed by a three- year period of probation.

Terms include: • Keep the peace and be of good behaviour; • Appear before the court when required to do so by the court; • Notify the court, probation officer or supervisor in advance of any change of name, address, employment or occupation; • Report to a probation officer at 115 MacLean Street, New Glasgow, Nova Scotia within two (2) days from the date of expiration of your sentence of imprisonment and thereafter as directed by your probation officer; • Attend for mental health assessment and counselling as directed by your probation officer. • That you are not to be within 10 metres of a polling station during any election save and except a polling station that you are registered to vote in. • That you must advise the police by phone no less than 24 hours prior to voting of when you intend to enter a polling station to vote, the location of that polling station, and further that you shall not take any more time than is necessary in voting. • Further you shall allow your person to be searched after exiting the polling booth if requested to do so by a peace officer.

Scovil, J.