Her Majesty the Queen v. Daniel Kenneth Stewart Judge: The Honourable Judge Del W. Atwood, 2014 NSPC 22

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Stewart , 2014 NSPC 22 Date: 2014-04-23 Docket: 2596439, 2600435 Registry: Pictou Between: Her Majesty the Queen v. Daniel Kenneth Stewart Judge: The Honourable Judge Del W. Atwood Heard: 23 April 2014 at Pictou, Nova Scotia Counsel: Patrick Young, for the Nova Scotia Public Prosecution Service Douglas Lloy Q.C., Nova Scotia Legal Aid , for the Daniel Kenneth Stewart [ 1 ] Daniel Kenneth Stewart is before the court to be sentenced in relation to a single

summary offence charge of sub-section 430(3). That charge arose from Mr. Stewart taking a ball-pein hammer to a vehicle owned by Mr. Matthew MacKinnon. Mr. Stewart entered a guilty plea to that charge, and sentencing has been adjourned on a number of occasions awaiting the outcome of Mr. Stewart’s trial for a break-and-enter charge and a related arson charge. [ 2 ] Mr. Stewart was found guilty after electing trial in this court and pleading not guilty to an indictable count of para. 348(1)(b), break and enter and commit the indictable offence of arson.

There was a companion charge of arson which was stayed judicially by the court, applying the principles set out in R. v. Kienapple . The para. 348(1)(

b) charge does not relate to a dwelling house as the information was amended on 25 September 2013 to refer to the place entered as “not being a dwelling house”. The court found that Mr. Stewart used waste oil and candles to set fire to an abandoned house located next door to Mr. Stewart’s own home in Westville. Fire services had to be called in, and the there was a substantial amount of fire damage done to the abandoned structure. [ 3 ] The positive or mitigating factors, are, first of all, in relation to the

section 430 count, Mr. Stewart entered a guilty plea and has accepted responsibility for his actions. [ 4 ] The court has reviewed, with the consent of counsel, the psychiatric assessment that was completed by Dr. Theriault under the authority of a

section 672.11, 672.12 order, that report dated 25 May 2013. The report describes Mr. Stewart as suffering from poor mental and physical health, complicated by his abuse of alcohol. However, the information before the court is that Mr. Stewart is a very intelligent individual who is certainly talented in the field of small-engine repair. Mr. Stewart has sought to share his knowledge and learning with young people in the community, and those are certainly all positive factors. [ 5 ] Mr. Stewart does have one prior finding of guilt that relates to a drive-over-.80 offence.

In my view, that offence is so remote in time and unconnected to the charges before the court as to be of no aggravating effect whatsoever. [ 6 ] The court must take those mitigating factors into account, and I must be careful not to impose a sentence that would crush the prospect of rehabilitation. [ 7 ] With respect to aggravating factors, the key aggravating factor in relation to the break-and-enter charge is that this was a break and enter coupled with the commission of the indictable offence of arson. An unoccupied property that had been occupied previously by

the Feit family as their home was set alight by Mr. Stewart. Emergency personnel responded, and, as in any situation of that naturewhere first responders are required to deal with fire control and containment, the risk to the safety of fire personnel was real andsubstantial. This was not a rural location. This arson occurred on Park Street in Westville, and as in any case involving an arson in aresidential neighbourhood, the danger to the public due to the risk of uncontrolled fire is, again, real and substantial. [8] According to the facts found by the court, Mr.

Stewart was heavily under the influence of alcohol at the time. Addiction toalcohol or the abuse of alcohol is not a crime in and of itself. However, it is certainly well known to the court that alcohol has astimulating and disinhibiting effect on human behaviour ; it is clear to the court—and this is based on Mr. Stewart’s conduct on 10 May2013, not simply in setting alight the Feit home, but damaging substantially the vehicle owned by Mr.

MacKinnon—that when Mr.Stewart is under the influence of alcohol, he can pose a substantial risk to the safety of the public. [9] What is remarkable in this case is the sense of justification and entitlement demonstrated by Mr. Stewart, particularly in histestimony during the course of the trial as Mr. Stewart proceeded to describe his actions in damaging Mr. MacKinnon’s vehicle. Mr.Stewart was of the view that he ought to have received a medal for his conduct; it is that sense of self-justification and entitlement in theface of

an act of what can be described only as rampant vigilantism that causes the court to have substantial concern about the protectionand safety of the public. [10] The court certainly recognizes that the building that was set alight was not a dwelling and it was not occupied by anyone. However, the court must be mindful that the criminal law is not the law of private wrongs. The purpose of the sentencing hearing todayis not confined to providing restitution or recompense to the Feit family for their property loss.

The criminal law is the law of publicwrongs, and the court must focus on the protection and safety of the public, not losing sight of the need for rehabilitation and the need tofocus on the least restrictive penalty that would be consistent with the fundamental purposes and principles of sentencing. [11] However, as was underscored in R. v. Nowlan, 2009 NBQB 117, it is not whether the building broken into was a palace or ahovel; rather, what the court must be focussed on are the issues of vulnerability and risk. It is clear to the court that abandoned buildingsare certainly vulnerable to malicious damage.

The court is also conscious of the fact that any arson of this nature exposes the public torisk. That would include owners and occupants of nearby dwellings and first responders, as I mentioned a moment ago. [12] This is, indeed, Mr. Stewart’s first serious encounter with the criminal law, and I do recognize that Mr. Stewart is before thecourt essentially as a first time offender. However, he is before the court as a first time offender having been found guilty of anextremely serious offence for which he is solely responsible. And, I repeat again, that the court must be alive to the issue of risk to thepublic.

This is a principle of sentencing that has been outlined in a myriad of cases including R. v. McVeigh, (ON CA),[1985] O.J. 207 (C.A.). [13] I am conscious of the fact that, although Mr. Stewart maintains his innocence, the court must not treat that as an aggravatingfactor. That was outlined originally by our Court of Appeal in R. v. Campbell, [1977] N.S.J. 443, and that has been reiteratedcontinuously by sentencing courts in this province. [14] However, in assessing Mr. Stewart’s amenability to a rehabilitative sentence, the court is confronted with Mr.

Stewart’s sense ofentitlement, and in my view, disregard for the legal process. Mr. Stewart feels that if his reasons are good enough, he is entitled to takethe law into his own hands, and that shone through in Mr. Stewart’s comments in his testimony to the court, particularly in relation to hisactions involving Mr. MacKinnon’s motor vehicle. [15] It is clear to the court that, although Mr. Stewart has maintained his profession of innocence, as he is certainly entitled to do, themanner in which Mr.

Stewart disregarded the process of the court leaves the court with real and substantial concerns about Mr.Stewart’s willingness to participate in rehabilitative sentencing.

In my view, the prospect of successful community-based sentencing isbleak here. [16] I do observe that the break and enter charge is not eligible for the conditional sentencing regime, given that the prosecutionproceeded by indictment and given the conditional-sentence-exclusion provisions of sub-para. 742.1(f)(ix). [17] First of all, in relation to the break and enter charge, the court will order the imposition of a secondary designated offence ….was there a DNA collection order being sought? [18] Mr.

Young: Yes, there was. [19] The Court: Yes, a secondary designated offence DNA collection order in relation to that charge. [20] Applying the principles set out recently by the Supreme Court of Canada in R. v. Carvery, 2014 SCC 27, which itself followedthe companion decision of R. v. Summers, 2014 SCC 26, although I find that it is likely that, based on Mr. Stewart’s demeanour andattitude, he would not be eligible for early release, I conclude that that is not the only factor that the court ought to consider indetermining and exercising its discretion under the Truth in Sentencing Act to give Mr.

Stewart enhanced 1.5-times credit for remandtime under sub-s. 719(3.1). [21] I find that Mr. Lloy has made a very compelling case in his brief submitted to the court on 18 March 2014, supported bysentencing Exhibit #1 here today, that because of the many hardships that Mr. Stewart has encountered while on remand, enhanced 1.5day credit ought to be accorded. And the court does intend to allow Mr.

Stewart 1.5- days’ credit for every day of remand served. [22] In relation to the break-and-enter charge, but for the remand time, the court would have considered the imposition of a sentencein the range of three and one half years; however, given the period of remand time giving Mr. Stewart 522 days credit for his remandtime, the court is going to impose a sentence in relation to the break and enter charge of two years plus a day. [23] In relation to the

Section 430 charge, there will be a sentence of thirty days imprisonment but to be served concurrently; for atotal sentence of two years plus a day.

[ 24 ] Given that these offences occurred prior to the coming-into-force date of the amendments to

Section 737 of the Criminal Code dealing with victim surcharge amounts, I find that, given Mr. Stewart’s very limited means and given the duration of the sentence, the imposition of victim surcharge amounts would work an undue hardship; therefore, the court declines to impose any victim surcharge amounts in this case. [ 25 ] And so, the total sentence of the court going forward will be a sentence of two years plus a day.

The court will order and direct that information #676567 be endorsed and that the warrant of committal be endorsed in accordance with the Truth in Sentencing Act , to record that, but for the remand time, the sentence for the break and enter charge would have been two years plus 522 days. [ 26 ] Anything further in relation to Mr. Stewart, counsel? [ 27 ] Mr. Young : Not for me. [ 28 ] Mr. Lloy : No, thank you. [ 29 ] The Court : Thank you. J.P.C.