R. v. Smith, 2014 NSPC 72

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Smith , 2014 NSPC 72 Date: 2014-08-29 Docket: 2355659; 2355661; 2375628; 2375629 Registry: Dartmouth Between: Her Majesty the Court v. Adam Smith Judge: The Honourable Judge Theodore Tax Decision August 29, 2014 Charge: CC 249.1(1); CC 811; CC 348(1)(b); CC 333.1(1) Counsel: Janine Kidd for the Crown Patricia Jones for the Defendant By the Court: INTRODUCTION [ 1 ] Mr. Adam Smith is before the Court to be sentenced on four charges for which he entered guilty pleas. He has pled guilty to the theft of a motor vehicle contrary to

section 333.1(1) of the Criminal Code and operating a motor vehicle while being pursued by a peace officer and in order to evade the peace officers, failing, without reasonable excuse, to stop the vehicle as soon as reasonable in the circumstances contrary to

section 249.1(1) of the Criminal Code . Mr. Smith also pled guilty to a break and enter and commission of the indictable offence of theft at 16 Clement Street, Dartmouth, Nova Scotia, contrary to section 348(1) (

b) of the Criminal Code . Finally, Mr. Smith pled guilty to a breach of a

section 810 Recognizance, issued on May 4, 2011, by having direct or indirect contact or communication with persons under the age of 16 years contrary to

section 811 of the Criminal Code . All of the offences occurred on or about August 31, 2011 at or near Dartmouth or Cole Harbour, Nova Scotia. The Crown had proceeded by indictment on the break, enter and theft charge as well as the theft of the motor vehicle contrary to

section 333.1(1) of the Criminal Code , but proceeded by

summary conviction with respect to the other two charges. [ 2 ] The issue before the Court is to determine a fit and appropriate sentence, in all the circumstances of this offender and these offences, taking into account all of the appropriate purposes and principles of sentencing as well as all of the aggravating and mitigating factors present in this case. POSITIONS OF THE PARTIES: [ 3 ] The Crown Attorney submits that, given the seriousness of the charges and Mr.

Smith’s prior record, as well as the Nova Scotia Court of Appeal’s so-called “benchmark” or “starting point” with respect to break, enter and theft charges involving a dwelling house, Mr. Smith should serve a sentence in the range of three years in a federal penitentiary with respect to all of the charges before the Court.

It is the position of the Crown that a Conditional Sentence Order (“CSO”) of imprisonment in the community is not that the appropriate sanction for the Court to order as the primary sentencing purpose and principles in this case are specific and general deterrence and denunciation of the unlawful conduct.

Furthermore, given the length of the appropriate sentence recommended by the Crown, although a CSO was an available sanction since there was no minimum punishment at the time of these offences, the Crown Attorney submits that a CSO would not be an available sanction as it would exceed the two-year limit for imprisonment in the community. It is the position of the Crown that the sentence ordered by the Court for the flight from police charge ought to be served concurrently with the break, enter and theft charge and the theft of the motor vehicle charge, but the

section 811 consecutively to any sentence ordered by the Court on the other charges. [ 4 ] Defence Counsel submits that Mr. Smith was a relatively youthful, immature adult offender who suffered from ADHD, Fetal Alcohol Syndrome and actually had a mental development much closer to a youthful teenager than a young adult, and as such, the Court’s sentencing decision should focus equally on deterrence and denunciation as well as the rehabilitation of this offender. It is the position of the Defence that the pre-sentence report makes it clear that Mr.

Smith is in need of significant counselling, treatment and programming and that Mr. Smith now has a family doctor, a psychiatrist to assist him and the structure of the Metro Community Living group home to assist him in his rehabilitation. While Defence Counsel is aware of the “benchmark” established by the Nova Scotia Court of Appeal, she submits that this case is unique and she recommends that Mr. Smith serve a CSO of two years, less one day to be

followed by a period of three years under terms of probation which would include very strict terms and conditions with a requirement to reside at a Metro Community Living group home. CIRCUMSTANCES OF THE OFFENCES: [ 5 ] As I indicated at the outset, all of the offences before the Court for which Mr. Smith has entered guilty pleas occurred on August 31, 2011. Briefly stated, the facts and circumstances of the offences for which Mr. Adam Smith entered guilty pleas are as follows: 1. Flight from police – Operating a motor vehicle in a manner to evade the police officer –

section 249.1(1) Criminal Code &

section 811 Criminal Code charge for breach of a

section 810 Criminal Code Recognizance – On August 31, 2011 at approximately 2:15 AM, police observed a 2009 Chevrolet Cobalt being driven south on the Forest Hills Parkway in Cole Harbour, Nova Scotia. The car made a wide right turn onto Cumberland Drive across two lanes and straddled the centerline swerving back and forth for short period of time.

Police officers activated their emergency lights and sirens in an attempt to conduct a traffic stop of the vehicle in the area of 958 Cole Harbour Road, but the car maintained its speed and traveled about 300 to 400 feet before stopping at the intersection of Cole Harbour Road and Otago Drive. At that point, three passengers jumped out of the car and the police heard one passenger say to the driver “go, go, go” and then the car accelerated and went at a significant speed down Cole Harbour Road with the police in pursuit.

The pursuit continued along the road through a construction zone and a residential area and ended in the area of Galaxy Avenue and Gaston Road where the vehicle was abandoned in the middle of the road. Police officers who were following the vehicle saw the driver bail out and run in one direction while the front and rear passengers bailed out and ran off in the opposite direction. The K-9 unit was called to track the driver and the track led to an area near 16 Clement Street, which is the residence of Mr. Roger Moore.

One officer located the three young people [all under the age of 18 years], who had initially jumped out of the car when it was briefly stopped on the road. Police officers spoke to the three young persons and they each independently identified the driver as a male whose first name was Adam, described his clothing, that he was wearing an ankle bracelet and that they had just met him earlier that evening.

A short time later, police officers observed a male walking toward Clement Street wearing jeans and a pattern shirt which matched the description provided by the three young persons of the clothing worn by the driver. At approximately 4:00 AM on August 31, 2011, the male individual was arrested by the police and was identified as Adam Smith. Police officers conducted a check of the CPIC system and learned that he was bound by the terms and conditions of a

section 810 Criminal Code Recognizance. In response to a question whether he was subject to any conditions, Mr. Smith said that he had an offender monitor ankle bracelet and that he was bound by conditions in a

section 810 Recognizance made on May 4, 2011 which had a one-year term and also required him to not have any direct or indirect contact or communication with persons under the age of 16 years. All five of the young persons in the car with Mr. Smith were under the age of 16 years. Mr.

Smith gave a statement to the police during which he said that one of the other young persons had driven the Chevrolet Cobalt until the first stop in the middle of the road, and from there, he took over driving the vehicle and eventually stopped on Gaston Road because he thought he was far enough ahead of the police officers to be able to run away. In his statement, Mr. Smith admitted his role in the driving incident, which matched the other information provided to the police.

The K-9 track had led police officers to the residence at 16 Clement Street but when they went to the door to attempt to speak to the registered owner, there was no answer at the house at that time. 2. Break and enter and theft- section 348(1) (

b) Criminal Code and Theft of a Motor Vehicle –

section 333.1(1) Criminal Code – On August 31, 2011, when the police officers finally caught up to the gray, 2009 Chevrolet Cobalt vehicle, they ran the license number and learned that the registered owner was Mr. Roger Moore whose residence was located at 16 Clement Street in Dartmouth, Nova Scotia. As I indicated previously, on the evening in questions, police officers did go to that residence but there was no answer at the door at that time. On September 5, 2011, Mr.

Roger Moore contacted the police to say that he had been out of town and that sometime between August 27, 2011 at 8:00 AM and September 5, 2011 at 8:00 PM, his house had been broken into and articles had been taken. He indicated that someone had entered his house through a rear bedroom window which was his computer room. The window was removed and had been placed on a chair. The items missing were approximately $800 in Canadian cash currency, about $200 in Canadian currency from the 1900s, a black computer monitor, a laptop computer and $250 in coins made up of the 1973 “Mountie” quarters.

In addition, he indicated that the keys to the shed to his house and to his personal vehicle, a 2009 Chevrolet Cobalt license plate number EST 632 were taken from his house. Police confirmed that Mr. Moore’s Chevrolet Cobalt was the vehicle involved in the police pursuit during the early morning hours of August 31, 2011. Mr. Moore confirmed that he did not give permission to anyone involved in this incident to be in his house or to take his car or to take any of the items that were stolen from his house. Based upon Mr.

Smith’s location when he was arrested near 16 Clement Street on August 31, 2011, and the fact that he was wearing an electronic bracelet which had been monitored by Probation Services, police officers requested GPS information on Mr. Smith whereabouts. Based on that information, police officers learned that on August 31, 2011 between 1:00 AM and 1:16 AM there was a direct hit on the address at 16 Clement Street. Furthermore, at 2:15 AM when police officers attempted the traffic stop, the ankle bracelet placed Mr. Smith at the corner of the Cole Harbour Road and Otago Drive.

Between the hours of 2:25 AM and 3:48 AM, the GPS positioned Mr. Smith in a wooded area near Lynn Drive which was an area where the K-9 track led police officers to the area of 16 Clement Street. Finally, at approximately 3:50 AM, the GPS data indicated that Mr. Smith had just gone from Lynn Drive to the area near 16 Clement Street where he was walking on Clement Street at the time of his arrest. In addition, at 4:25 AM the GPS data confirmed that Mr. Smith was at the Cole Harbour detachment of the RCMP which is where he was taken after he was arrested. Mr.

Smith was provided his Charter rights and police caution and was cooperative with police officers, providing a statement which admitted his involvement in the theft of the vehicle and being a party to the break enter and theft from the house.

During the sentencing hearing, the Crown acknowledged that the GPS data was not accurate enough to place Mr. Smith inside the residence at 16 Clement Street, but noted that he was certainly right beside that house. As a result, Defence Counsel stated that Mr. Smith has admitted to being a party to the break, enter and theft and that he stood guard outside the house, but did not enter the house at any time. The Crown Attorney did not take issue with that assertion.

VICTIM IMPACT STATEMENT: [ 6 ] The Crown Attorney confirmed that Victim Services had contacted the home owner, who was also the owner of the vehicle which was stolen, but no Victim Impact Statement was filed. Furthermore, the Crown Attorney indicated that although a number of personal items were taken from the home but not recovered, which would undoubtedly be very disconcerting, there was no claim for restitution. CIRCUMSTANCES OF THE OFFENDER: [ 7 ] The Court had the benefit of a Pre-Sentence Report and an update to that report which indicated that Mr.

Smith is now 25 years old, but at the time of these offences, he was approximately 21 years of age. The Pre-Sentence Report indicated that Mr. Smith had lived several years in Alberta during his formative years, but returned to Nova Scotia in 2007. After a short stay in Halifax, Mr. Smith returned to Alberta to face sexual assault and kidnapping charges and was sentenced to 15 months of custody followed by 3 years on probation, during which period he was supervised by a probation officer in Nova Scotia.

In Nova Scotia, he lived with his mother until he was 21 years old, and then moved into a group home through Metro Community Living and has been there since under the care of the Department of Community Services. [ 8 ] Mr. Smith’s mother was contacted by the probation officer and indicated that she was unable to care for her son, but he was doing well in the group home as they can control his impulse behavior.

She indicated that her son is a follower and that she had concerns about the people with whom he was associating with outside the group home, but she indicated that her son has responded well to the strict restrictions in the group home. Staff at the group home also confirmed Mr. Smith’s mother’s assessment that he was doing well and indicated that he is more focused on his priorities, his situation has improved since his involvement in the current offences and he has caused no concerns at the group home. [ 9 ] In terms of his education and training, Mr.

Smith indicated that he had the equivalent of an academic grade 6 or 7 education and that he has learning disability. He has attended the Solution Learning Program in Dartmouth and had good marks and good relationships with peers and teachers, graduating in August, 2013 from the Employment Skills Learning Program. At the time that the Pre-Sentence Report was prepared in October 2013, he was attending an administrative property management program through the Dartmouth Work Activity Program.

An instructor with the Dartmouth Work Activity Program indicated that his attendance has been very good and that his attitude has been positive. The instructor said that the only concern that she had was with respect to his peer associations, as Mr. Smith is easily manipulated. Mr. Smith was placed with the John Howard Society on a work placement at the time of the report. [ 10 ] Mr. Smith has no source of income and is under the care of the Department of Community Services. Mr.

Smith’s social worker said that he has been living at the group home since December, 2010 under the care of their Department and that it provides very strict, structured conditions with programs both inside and outside the group home. Many people contacted by the probation officer suggested that Mr. Smith have a condition requiring him to be under electronic supervision through the probation services to help their agency with the structure that he needs. His social worker also indicated that Mr.

Smith could benefit from one-on-one counseling and further work experiences. [ 11 ] In terms of the his health and lifestyle, the probation officer noted that Mr. Smith suffers from “impulse disorder” and takes injections for treatment, but his general health is very good. He has had several interventions at the IWK Development Clinic where he was assessed with the “mild global cognitive impairments, attention deficit hyperactivity disorder and fetal alcohol neuro-development defect”. Mr.

Smith was assessed and had treatment at the East Coast forensic Psychiatric Hospital – Forensic Sexual Behavior Clinic between November 2009 and September 2012 completing all of the requirements and treatment. Since the Pre-Sentence Report, Mr. Smith has continued treatment with his family Doctor and with a psychiatrist, Dr. Grainie Nielsen. Dr. Nielsen has been meeting with the offender every six months to address his impulse disorder and indicated that he needs “clear boundaries” and should have no contact with children or youth unless supervised.

She highly recommended that the offender be on a very strict supervision level in the community and constantly monitored, also believing that electronic monitoring which has been beneficial to the offender in the past would also help him in the future with the counseling, treatment and the programming that he requires. [ 12 ] During their submissions, both Counsel pointed out that Mr. Smith has served a period of time in custody and that he was placed under very strict terms of supervision while on probation for two years and eight months which required him to wear an electronic monitoring ankle bracelet.

In June, 2012, there was one breach of a recognizance and he served an intermittent sentence of 29 Days. Prior to that, in June 2008, Mr. Smith had served a period of 15 months in custody in Alberta for kidnapping charges, assault with a weapon, possession of stolen property and failure to comply with the condition in a recognizance or undertaking. [ 13 ] It is the position of the Defence that the earlier prison sentences have served as a wake-up call as Mr. Smith was victimized by other offenders while he was in jail and that it was hard to get the appropriate treatment in the provincial correctional center.

Defence Counsel submitted that Mr. Smith is in need of further counseling, treatment and programming in the community and that he has the support of his family, the medical community and his social workers. She also pointed out that there are limited opportunities for placement in group homes and that if Mr. Smith was sentenced to jail, he would lose his placement which would have a profound effect on his rehabilitation. Furthermore, Counsel adds that if Mr.

Smith was in custody, he could not be required to take the recommended medications, however, if he was in the community under terms of a CSO and a Probation Order, the treatments can be monitored and administered by the medical professionals. APPLICABLE PURPOSES & PRINCIPLES OF SENTENCING: [ 14 ] In all sentencing decisions, determining a fit and proper sentence is highly contextual and is necessarily an individualized

process which depends upon the circumstances of the offence and the particular circumstances of the specific offender. On this point,the Supreme Court of Canada stated, in R. v.

M. (C.A.) (SCC), [1996] 1 SCR 500 at paras. 91 and 92, that thedetermination of a just and appropriate sentence requires the trial judge to do a careful balancing of the societal goals of sentencingagainst the moral blameworthiness of the offender and the gravity of the offence while at the same time taking into account the victim orvictims and the needs of and the current conditions in the community. [15] The purposes and principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code.

In this case, Ifind that the primary objectives are the denunciation of the unlawful conduct, specific deterrence of Mr. Smith and general deterrence oflike-minded offenders, the protection of the public as well as to assist in the rehabilitation of the offender. [16] Parliament has also included the principal of proportionality found in

section 718.1 of the Criminal Code which requires theCourt to determine a sentence that is proportionate to the gravity of the offence and the degree of the responsibility of the offender. [17] In

section 718.2 of the Criminal Code, Parliament has required the courts to consider other sentencing principles in imposing ajust sanction which will contribute to respect for the law and maintenance of a just, peaceful and safe society. Pursuant to section718.2(

a) of the Criminal Code, the Court is required to increase or reduce the sentence to be imposed by taking into account anyrelevant aggravating or mitigating circumstances relating to the offence or the offender. [18] The parity principle outlined in

section 718.2(

b) of the Criminal Code required the Court to take into account the fact thatsimilar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. [19] Finally, the Court must also consider the totality principle found in

section 718.2(

c) of the Criminal Code which requires theCourt to consider, where consecutive sentences are imposed, that the combined sentence should not be unduly long or harsh. The totalityprinciple must be considered in this case, as the Court is determining the appropriate sentence for four charges which occurred over an18 month period. [20] With respect to the totality principle, in R. v.

M (C.A.), (SCC), [1996] 1 SCR 500, the Supreme Court ofCanada stated, at para. 42, that the totality principle, which requires the sentencing judge who orders an offender to serve consecutivesentences for multiple offences, is to ensure that the cumulative sentence rendered does not exceed the overall culpability of theoffender.

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of asentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not inkeeping with his record and prospects. [21] In addition, in view of the fact that Mr. Smith is a youthful adult offender, I find that it would also be appropriate to considerthe impact of this sentence on his rehabilitation. AGGRAVATING / MITIGATING FACTORS: [22] In terms of mitigating factors present in this case:

(1) Mr. Smith is now 25 years old, however, he was 21 years old at the timeof these offences and in terms of his mental development, the information before the Court is that he has cognitive impairment, ADHD,fetal alcohol neuro-development defects and below average maturity, functioning more like a teenager at the time of the offences; (2)Although he had entered not guilty pleas to the charges before the Court, there had been discussions with the Crown and there was achange of plea on the trial date, so that witnesses were not required to present in court;

(3) Mr. Smith has expressed his remorse for hisactions and accepted full responsibility for them;

(4) There is a positive Pre-Sentence Report which notes the progress that Mr. Smith hasmade since he stopped associating with the negative peers and moved into the group home operated and supervised by MetroCommunity Living and support from his family and his social workers; (5) he has worked at a variety of jobs in the past and recentlycompleted his courses at the Dartmouth Work Activity Program and was seeking employment at the time that the submissions weremade; his instructor provided a positive reference on his attendance and attitude at school;

(6) Mr. Smith has been under the strictconditions of a Recognizance which included 24 hour house arrest with limited exceptions, since September 7, 2011. [23] In terms of the aggravating factors present, particularly with respect to the break, enter and theft charges: (1) the chargesinvolved a break-in of a residence on August 31, 2011, while the homeowner was away from the residence on vacation; (2) there was asignificant amount of valuable personal property stolen from the residence which was not recovered; (3) although Mr.

Smith does nothave a prior related record for the offences before the Court, he does have a prior adult record for very serious charges involvingkidnapping charges contrary to section 279(1.1) (

b) of the Criminal Code and assault with a weapon contrary to

section 267(

a) of theCriminal Code as well as possession of stolen property and several convictions for failing to comply with condition in a recognizance orundertaking contrary to section 145(3) of the Criminal Code in Drumheller Alberta, for which he received 15 months in a provincialinstitution which was followed by a period of three years on probation which was ordered on June 27, 2008 and a charge of sexualassault with a weapon contrary to section 272(1)(

a) of the Criminal Code for which he was sentenced to a period of one day in custodydeemed served taking into account eight and a half months of pre-sentence custody in Drumheller Alberta on July 10, 2009;

(4) Despitethe

section 810 Criminal Code Recognizance which required Mr. Smith to not have any direct or indirect contact or communication withpersons under the age of 16 years, all of the incidents before the Court also involved several young persons who were aged 14 and 15years at the time of these offences.

ANALYSIS: [24] As in evident from the sentencing submissions made by the Crown Attorney and Defence Counsel, there is a significantdifference between a three year sentence to be served in the penitentiary and two years to be served in the community under the terms ofa conditional sentence order, followed by a period of three years under the terms of probation order.

In their submissions, both Counselhave recognized that denunciation of the unlawful conduct, specific and general deterrence are the primary purposes of sentencing atplay in this case, but Defence Counsel also places an equal focus on the rehabilitation of Mr. Smith. [25] The Crown Attorney points out that an offence contrary to section 348(1)(

d) of the Criminal Code is an indictable offence andwhere the offence involves a break and entry into a dwelling house, the offender could be subject to a maximum term of imprisonment

for life. There is, however, no mandatory minimum sentence imposed for this offence. [26] Looking at the various charges before the Court with respect to the proportionality principle found in

section 718.1 of theCriminal Code, I find that the charge of break, enter and theft of dwelling house represents the most serious given before the Court. While I find that the gravity of the offence is very serious given that a private residential dwelling was broken into and several articles ofvalue were stolen, I find that Mr. Smith’s degree of responsibility for that charge ought to be similar to the young persons who actuallybroke into and entered the residence to steal the homeowner’s property. Furthermore, it was noted by the Defence Counsel and the issuewas not contested by the Crown Attorney that Mr.

Smith pled guilty to this charge as a party to the offence of break, enter and theft, buthe maintains that he did not enter the residence, but rather, remained outside the residence as a lookout. In these circumstances, I cannotconclude that Mr. Smith degree of responsibility is as high as an offender who actually entered into the residence and took the property,although, his degree of responsibility remains relatively high as a party to this serious offence. [27] With respect to the “parity principle” found in

section 718.2(

b) of the Criminal Code, that is, the sentence of Mr. Smith shouldbe similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, both the Crown Attorneyand Defence Counsel referred to several cases. I simply noted here that given the highly individualized nature of the sentencing hearingwhich focuses on the circumstances of the offences and the circumstances of the individual offender, it is often difficult to find thatsimilar offender who has committed similar offences in similar circumstances. [28] The Crown Attorney referred to the decisions of R. v.

Zong, (NS CA), [1986] NSJ No. 207 (Nova ScotiaCourt of Appeal) and R. v. McAllister, 2008 NSCA 103 which established a three-year “benchmark” or “starting point” for a break,enter and theft involving commercial premises. In the former case, the premises broken into was a pharmacy in search of narcotics andin the latter case, it was the Amherst Justice Center to obtain cash and cheques from the safe.

The Nova Scotia Court of Appeal noted inthose cases that the appropriate sentence may be one that moves up or down from that “benchmark” or “starting point” depending uponthe circumstances of the offence, the particular offender and any aggravating or mitigating factors. In fact, in R. v. Adams, 2010 NSCA42, the Court reaffirmed the three year benchmark and also stated that it is a sliding scale which may descend to a two-year level in casesinvolving individuals who do not have prior records. [29] The Crown Attorney also referred to R. v.

Davidson, 2011 NSPC 14 for the “parity principle” as that case involved a youthful,first time adult offender who had entered guilty pleas to both a break, enter and theft from a dwelling house as well as an attemptedbreak, enter and theft of a dwelling house contrary to section 348(1)(

b) of the Criminal Code. The offender was 18 years old at the timeof the offences and was 19 years old when the sentence was imposed with no prior criminal record. However, the Court noted mitigatingfactors but added that there were very serious aggravating circumstances which included the significant degree of preparation andcalculation in the commission of the two offences and in his efforts to convert the stolen property into cash by claiming to be a memberof the victim’s family.

The offender was ordered to serve a two-year sentence in a federal institution on the break, enter and theft chargeas well as one year consecutive for the attempted break, enter and theft charge. [30] For her part, Defence Counsel submitted that sentencing is highly individualized process and that “starting points” or“benchmarks” established by the Court of Appeal may be increased or decreased by the trial judge depending upon the aggravating ormitigating factors, the circumstances of the offence and the circumstance of the offender.

It is the position of the Defence that the casesreferred to by the Crown can be distinguished by the circumstances of those offences as well as the locations which were broken into bythe offenders. [31] Defence Counsel submitted that the range of sentence for the break, enter and theft charge ought to be based upon the oneestablished in R. v.

Isenor, 2014 NSPC 50, where a youthful first-time adult offender with a positive Pre-Sentence Report received asentence of 30 months for two charges of break, enter and theft of occupied residential dwellings, including one which involved theoccupant of the residence returning home and confronting the offenders. While Defence Counsel acknowledges that Mr. Smith was aparty to the break, enter and theft from a residential dwelling which is a very serious charge, she submits that Mr.

Smith had limited rolein that break, enter and theft and never actually entered the residential property himself, therefore, the Court should assess his degree ofresponsibility as being significantly lower than that of Mr. Isenor. In those circumstances, Defence Counsel submits that the appropriatedisposition in this case would be a period of incarceration of less than two years in jail for that offence. [32] Furthermore, Defence Counsel submits that Mr. Smith’s case has other “unique aspects and circumstances” which were notpresent in Isenor or, for that matter, in any of the cases cited by the Crown Attorney.

For those reasons, taking into account theprinciples of proportionality, parity and totality for all of the offences before the Court, it is the position of the Defence that theappropriate disposition would be to order a lengthy period under the terms of a CSO followed by a lengthy period under terms of aprobation order to assist Mr. Smith in his rehabilitation and in becoming a productive member of society.

AVAILABILITY OF CONDITIONAL SENTENCE ORDER: [33] The Safe Streets and Communities Act (S.C. 2012, c.1, s. 34) came into force on November 20, 2012 and amended section742.1 of the Criminal Code dealing with the imposition of a CSO. Since the offences involved in this sentencing decision occurred inAugust 2011, the Court’s consideration of whether a conditional sentence order of imprisonment in the community is an “available”option and if so, whether it is the “appropriate” order to be granted in the circumstances of this case, is to be determined by thelegislation which existed at that time.

As a result, I find that a CSO is one of the sentencing options available to the Court since theoffences before the Court are not ones for which there was a statutory bar at that time and there was no minimum term of imprisonmentin any of the charges before the Courts was no statutory bar to. [34] Having concluded that there are no statutory bars to the order of a CSO,

section 742.1 of the Criminal Code also required thesentencing judge consider whether the sentence of imprisonment to be imposed would be less than two years. In other words, if thesentence to be ordered would result in a federal term of incarceration, then the option of serving the sentence as a CSO in the communitywas no longer an “available” option for the Court to consider. [35] If the Sentencing Court concluded that the just sanction was a sentence of less than two years of imprisonment, then

section

742.1 of the Criminal Code as it stood in August, 2011, also required the Sentencing Judge to determine whether the CSO ofimprisonment in the community was an “appropriate” sanction by considering two additional factors: (

a) service of the sentence of imprisonment in the community would not endanger the safety of the community; AND (

b) service of the sentencing in the community would be consistent with fundamental purpose and principles of sentencing insection 718-718.2 of the Criminal Code. [36] In this case, considering that final factor of whether a CSO is an “available” sanction, I have to determine that the appropriatesentence of imprisonment would be less than two years.

Looking at the parity principle, it is clear that the Nova Scotia Court of Appealhas established a “benchmark” or “starting point” of three years in prison for the offence of break, enter and theft, with the range ofsentences for commercial establishments and buildings other than dwelling houses, resulting in slightly lower sentences where there wereseveral significant mitigating factors and relatively few aggravating factors. [37] In determining the appropriate sentence today, as I have indicated previously, the most serious charge to be addressed is Mr.Smith’s involvement as a party in the break, enter and theft charge of Mr.

Moore’s house. The facts before me indicate that Mr. Smith’srole in that offence was to be a lookout for the young persons who actually entered the house and took the items of value while heremained outside the residence at all times. Given the period of time when Mr. Moore was absent from his house, I cannot determinethat the incident occurred on a specific date or time, other than generally stating that the incident at the time stated in the information. Furthermore, given the nature of the incident and the age of the young persons who were involved with Mr.

Smith, I cannot concludethat the break, enter and theft was the result of extensive planning and premeditation. [38] The fundamental principle of sentencing codified in

section 718.1 of the Criminal Code is that the sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. Some measure of the objective gravity of acrime is its maximum punishment as prescribed by Parliament. In some instances, Parliament has also provided a minimum punishmentfor an offence. In addition, as Watt J.A. aptly pointed out in R. v. Jacko, 2010 ONCA 452 which dealt with a home invasion,break, enter and assault as well as robbery of the victim, at para 53: “Degrees of responsibility vary. Some are principles.

Others are aiders, abettors, counselors or parties to a common unlawful purpose. And even within each mode of participation, some bear greater responsibility than others. Although all are parties in law and equallyguilty of the offence, greater punishment is the usual consequence of greater responsibility”. [39] In Jacko, supra, at para. 55, Justice Watt also dealt with the parity principle found in

section 718.2(

b) of the Criminal Code.He noted that the principle does not command identical sentences for co-accused, only similar sentences for co-accused whoseparticipation in the offences is similar and who have similar antecedents, present circumstances and future prospects.

Disparity ofsentences among co-accused does not per se amount to an error. [40] While I have not been advised whether any of the young persons involved in these incidents entered guilty pleas or were foundguilty of any of the offences in the Youth Justice Court, I have no doubt if that were the case, the sentences imposed upon them wouldhave been significantly different as the sentencing judge would have had to consider the purposes and principles of sentencing under theYouth Criminal Justice Act.

Indeed, the gravity of the offence may be equally high for both the young person and the adult chargedwith the same offence, but given the greater dependency of young persons and their reduced level of maturity compared to an adultoffender, it is likely that an adult court would conclude there is a difference in their degree of responsibility. [41] As I indicated previously, I find that the gravity of the break, enter and theft offence is very serious given that a privateresidential dwelling was broken into and several articles of value were stolen. In terms of Mr.

Smith’s degree of responsibility for thatcharge, since the facts established that Mr. Smith did not enter the residence, but rather, remained outside the residence as a lookout, Icannot conclude that his degree of responsibility is as high as the 14-year-old and 15-year-old young persons who actually broke into andentered into the residence to steal the homeowner’s property. [42] Moreover, looking at the circumstances of the offender and the information contained in the Pre-Sentence Report, I find that ithas been established that Mr.

Smith’s thought processes were not much different than the young persons with whom he was involved inthese incidents. Given the cognitive impairments and fetal alcohol neuro-development defect mentioned in the Pre-Sentence Report andthe fact that Mr.

Smith suffers from an “impulse disorder” and is easily manipulated by peers, I find that his degree of responsibility issimilar to the young persons who actually entered into the residence and took the property. [43] Furthermore, looking at the parity principle, I agree with the Defence Counsel that this case has “unique aspects andcircumstances” as this did not involve the break-in of a commercial premises as in the Zong or Adams cases and although this involvedthe break, enter and theft from a residence, the facts and circumstances are quite different from the Davidson case.

Moreover, given thecognitive impairments of Mr. Smith and the other very significant mitigating factors as well as the more limited role played by Mr.Smith in the break, enter and theft charge, I cannot conclude that the cases referred to by the Crown Attorney in her sentencingsubmissions relate to a similar offender who has committed similar offences in similar circumstances.

THE JUST AND APPROPRIATE SANCTION: [44] After having had the opportunity to consider the cases cited by both Counsel to establish a range of sentence for the break, enterand theft charge which is the most serious charge before the Court, I find that the range of sentence for that charge, should be 21 to 24months in prison based on the range established in the Isenor case. I find that the “unique aspects and circumstances” which are presentin this case bring the range of sentence down into that range from the range of 30 to 36 months which was mentioned in Isenor basedupon the fact that, although Mr.

Smith was a party to the offence of a break, enter and theft from a residential dwelling, he was not one ofthe principal perpetrators of that crime who actually entered the residence of the victim and as such, his participation ought to result in alesser degree of responsibility than the principals, who were actually young persons and presumably were dealt with under the YouthCriminal Justice Act. In addition, in this case, I have taken into account the aggravating factors mentioned previously as well as thefact that Mr.

Smith had a very positive Pre-Sentence Report which outlined several of the “unique” mitigating factors in determining the

appropriate range of sentence for the break, enter and theft charge. As a result, I hereby order Mr. Smith to serve a term of 23 monthsless one day of imprisonment for the break, enter and theft charge contrary to section 348(1)(

b) of the Criminal Code. [45] In addition, in this case I also have to consider the totality principle for consecutive sentences to ensure that the aggregatesentence ordered by the Court is “just and appropriate” and is not substantially above the normal level of sentence for the most serious ofthe individual offences involved. In this regard, I have to take into account that Mr. Smith has been charged with a series of offenceswhich were all committed on or about August 31, 2011.

Those other offences involved the theft of a motor vehicle, operating a motorvehicle while being pursued by peace officer and failing to stop, without reasonable excuse, in an effort to evade the peace officer aswell as a charge under

section 811 of the Criminal Code by breaching the terms of a

section 810 Criminal Code Recognizance whichordered Mr. Smith not to have any direct or indirect contact or communication with persons under the age of 16 years. [46] Looking at the other charges before the Court, I find that the theft of the motor vehicle contrary to

section 333.1(1) of theCriminal Code can be regarded as part of the same delict as the break, enter and theft charge, as the key to the vehicle was initiallyobtained by the young persons who were the principal perpetrators of that charge, and therefore, I find that the just and appropriatesentence is to order Mr. Smith to serve a term of two months of imprisonment for that charge, but that sentence would be servedconcurrently with the sentence that I have ordered for the break, enter and theft charge.

Similarly, with the driving offence contrary tosection 249.1(1) of the Criminal Code, the facts and circumstances established that Mr. Smith only took over the wheel of the motorvehicle for a very short duration after the police officers had activated their sirens and emergency equipment, before stopping the vehiclein the middle of the road and fleeing from the scene. In these circumstances, I find that the just and appropriate sentence for the chargeof operating a motor vehicle in a manner to evade the peace officer is to order Mr.

Smith to serve a term of two months in custody, butthat sentence would also be served concurrently with the sentence that I have ordered for the break, enter and theft charge. [47] Finally, with respect to the

section 811 charge, the facts and circumstances of the case clearly established that Mr. Smith was inthe presence of several people under the age of 16 years who were, as it turned out, likely the other people who participated with Mr.Smith in all of the offences which are before the Court today for disposition. While I have found that Mr. Smith had a lesser degree of responsibility than the principal perpetrators of the break, enter and theft charge, the same cannot be said for this charge. In this case,Mr.

Smith completely disregarded a court order which prohibited him from having any direct or indirect contact or communicating withpersons under the age of 16 years and not only had contact with those young persons, but also, became involved with them in thecommission of a series of other serious Criminal Code offences. In these circumstances and taking into account the principle of totality,proportionality as well as all of the aggravating and mitigating factors present in this case, I find that a just and appropriate sentence forthat offence is to order Mr. Smith to serve a period of one month for the

section 811 offence, which is to be served consecutive to thesentence for the break, enter and theft charge. [48] In the final analysis, I find that the total sentence of imprisonment that I have ordered Mr. Smith to serve is a period of 24months less one day. In addition, I have been advised that Mr. Smith has served a period of 31 days of pre-sentence custody andtherefore, I will credit him with that amount of time against the sentence that I have ordered on a one to one basis. As a result, Mr.

Smithhas been ordered to serve a total term of imprisonment, on a go forward basis, of 23 months. [49] Having reached the conclusion that the total term of imprisonment which I have ordered Mr. Smith to serve would be for aperiod of less than two years, I find that a CSO of imprisonment in the community remains an “available” option for the Court toconsider. As I mentioned previously,

section 742.1 of the Criminal Code as the relevant time required the Court to consider whether theCSO was also the “appropriate” disposition if it was one of the “available” options.

The assessment of whether the CSO was an“appropriate” disposition required the Court to determine two additional issues: (1) whether the sentence of imprisonment in thecommunity would endanger the safety of the community and (2) whether the service of the sentence in the community would beconsistent with the fundamental purpose and principles of sentencing in sections 718 to 718.2 of the Criminal Code. [50] With the respect to the first issue, that is, the endangerment of the safety of the community, I find that Mr.

Smith serving a CSOof imprisonment in the community would not endanger the safety of the community. In coming to this conclusion, I have considered thefact that Mr. Smith has been under strict terms of conditions of a recognizance which included 24 hour house arrest with limitedexceptions for a period of almost three years [since September 7, 2011]. I do note that, during that period of time, there was one breachof that recognizance contrary to section 145(3) of the Criminal Code on June 28, 2012, for which he was sentenced on July 11, 2012 toa term of 29 days in custody which was served on an intermittent basis.

There have been no violations of that recognizance in over twoyears and it was noted by Defence Counsel that the period of imprisonment served as a very real “wake-up call” for Mr. Smith. Inaddition, for the large majority of the period of time that Mr. Smith was under the terms of that recognizance, he was required to wear anelectronic monitoring ankle bracelet and it was noted in the Pre-Sentence Report that if Mr.

Smith was to serve the sentence in thecommunity, he should be subject to strict conditions including wearing an electronic monitoring ankle bracelet to closely monitor hiswhereabouts. [51] With respect to the second issue to determine whether the CSO of imprisonment in the community is an “appropriate”disposition, I am required to determine whether the service of the sentence in the community would be consistent with the fundamentalpurpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. On this point, I am mindful of thecomments of the Supreme Court of Canada in R. v.

Proulx, 2000 SCC 5 , [2000] 1 SCR 61where the Court addressed theprinciples governing conditional sentences.

In that case, the Supreme Court of Canada confirmed that conditional sentences wereintroduced to reduce the reliance on incarceration and to increase the use of restorative justice principles in sentencing. [52] In Proulx, supra, at pages 114-115 the Supreme Court of Canada stated that the conditional sentence regime affords thesentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender,reparations to the community and the promotion of a sense of responsibility, as well as protecting the public in ways that jail cannot.

However, the Court also noted that a CSO is still a punitive sanction and it is the punitive aspect of the CSO that distinguishes it from anorder of probation. The Court also stated that a conditional sentence can achieve both punitive and restorative objectives and can alsoprovide a significant deterrence and denunciation of the unlawful conduct while at the same time providing an equal focus on restorativeobjectives which is consistent with the fundamental principles of restraint found in

section 718.2(

d) and (

e) of the Criminal Code.

[ 53 ]

Section 718 of the Criminal Code states that 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 with one or more objectives to achieve that aim.

In this case, both Counsel acknowledge that denunciation and deterrence of the unlawful conduct are the primary purpose at play, however, I also find that given all of the facts and circumstances of this case, there also has to be an equal focus on assisting in the rehabilitation of the offender and promoting a sense of responsibility in him and acknowledging the harm done to the victims and to the community. Having considered all of the circumstances of this case, I find that this not one of those cases where it is necessary to separate Mr.

Smith from society by imposing a term of imprisonment to be served in a provincial correctional facility. [ 54 ] Having considered all of the facts and circumstances of this case, I find that Mr. Smith serving a CSO of imprisonment in the community, under strict terms and conditions which would include house arrest, at all times during the full period of 23 months of imprisonment in the community subject to certain exceptions, would be consistent with all of the fundamental purposes and principles of sentencing.

As a result, I find that a CSO of imprisonment in the community is an “appropriate” disposition in all the circumstances of this case. [ 55 ] In a moment, I will outline all of the terms and conditions of the CSO under which Mr. Smith will serve the 23 months of imprisonment in the community. Following that CSO order of imprisonment of the community, I am also ordering Mr. Smith to serve a period of three years under the terms and conditions of a probation order which I will outline in a moment, but one of the key terms and conditions of that probation order will be the requirement that Mr.

Smith be subject to a curfew which will require him to remain in his residence between the hours of 10:00 PM and 6:00 AM the following day, again subject to certain limited exceptions. By ordering a further period of time under terms of probation, I find that this will provide Mr. Smith with the opportunity to continue the recent progress that he has made and will assist him in continuing his efforts towards rehabilitation and becoming a productive member of society.

I will outline the specific terms and conditions of that probation order in a few moments. [ 56 ] In addition to the foregoing orders, I am also prepared to make an order under

section 487.051 of the Criminal Code that Mr. Smith provide a sample of his DNA to a peace officer in accordance with the terms and conditions of the order. In addition, I am exercising my discretion to grant the Crown’s request to order a one year driving prohibition under s. 259 for the s. 249.1 charge. [ 57 ] Finally, given all of the facts and circumstances in this case, and the fact that Mr. Smith has not been gainfully employed for a significant period of time, I hereby waive the Victim Fine Surcharge on all of the charges before the Court. Theodore K. Tax, JPC