R. v. Jardine, 2014 NSPC 59

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Jardine , 2014 NSPC 59 Date: 2014 08 06 Docket: 2740307, 2740309 Registry: Pictou Between: Her Majesty the Queen v. Derek John McRae Jardine DECISION ON SENTENCE Judge: The Honourable Judge Del W. Atwood Heard: 6 August 2014, in Pictou, Nova Scotia Charges: 267(b)CC, 733.1(1)CC Counsel: Patrick Young, for the Nova Scotia Public Prosecution Service Stephen Robertson, for Derek John McRae Jardine By the Court: [ 1 ] The Court has for sentencing Derek John McRae Jardine. Mr.

Jardine is before the Court to be sentenced for one count of assault causing bodily harm that was prosecuted indictably, as well as one count of breach of probation that was prosecuted indictably. [ 2 ] The mitigating factors are that Mr. Jardine elected to have his matters dealt with in this Court and Mr. Jardine entered pleas of guilty at an early opportunity. [ 3 ] I take note of the fact that Mr. Jardine has been gainfully employed in a challenging trade as a teamster for many years, and there is no doubt that Mr.

Jardine has had to overcome a great deal of adversity over much of his life [ 4 ] The presentence report informs the Court that, when Mr. Jardine is not under the influence of alcohol, he would appear to be a hardworking, conscientious individual. [ 5 ] The aggravating factors are, first of all, the level of violence that rained down upon Ms. Vint. The evidence that the Court heard at the bail hearing—and which forms the sentencing record with the consent of counsel—was that police were dispatched to a residence on Union Street in Westville as a result of a 911 call from Ms.

Vint that the accused was beating her up. [ 6 ] Police arrived at the scene, found the accused unsteady on his feet, with a strong smell of alcohol on his breath. Police observed right away bruising on the right side of Ms. Vint’s mouth, as well as bruising on her neck, nose and left eyelid. Ms. Vint showed to police her swollen right elbow and both of her knees appeared to have abraded injuries. [ 7 ] She told the police that the accused had bitten her on the left side of her face and her right foot.

She told the police that the accused had grabbed her “hard by the left breast and slammed her head on the toilet and tub”. [ 8 ] She told police that the accused slammed her head on ceramic tile and dragged her across the floor. [ 9 ] She told police that the accused had grasped a butcher knife, used it to threaten to slit her throat and had stuck it into the dining room table. The knife is depicted in photograph #14 of Exhibit 1 as stuck into a tabletop; it was seized by police. An image of it with a measurement scale is before the Court as Exhibit 2.

It is a Grohman butcher knife with a 10-inch blade. [ 10 ] Ms. Vint told police that the accused ripped her shirt and bra, tore off her shorts and panties. She stated that she tried to call 911 but the accused took the cellphone and damaged the house phone. [ 11 ] Police found clumps of Ms. Vint’s hair in a garbage can. [ 12 ] Ms. Vint gave an audio and video recorded statement to police that elaborated on what she had told police at the scene.

[ 13 ] She stated that she believed the accused was jealous over her new boyfriend. She stated that the accused pushed her against a table and knocked her down and tried to smother her. She stated to police that the accused told her that he would make her suffer.

He called her a whore, stuck the knife in the top of the dining room table, and dragged her underneath the table. [ 14 ] She stated that the accused told her that “he was a man, she was a woman and she needed to know her place”. [ 15 ] Photographs that I have before me as Exhibit #1 depict numerous contusions, abraded injuries, what appear to be further contusions or bruising around Ms.

Vint’s neck, clumps of …tufts of hair located, well, one appears to be located on top of some form of styrofoam tray; another clump of hair can be seen on what would appear to be a flooring of a deck; there is a clump of hair in a toilet; and the Court also is able to observe the butcher knife with the 10-inch blade, the very point of the knife embedded in what appears to be a dining room table. Clearly, there is substantial real evidence supporting Ms. Vint’s account of the nature of the violence that she was forced to endure. [ 16 ] I have reviewed, in detail, Ms.

Vint’s letter that has been submitted by defence counsel to Court as Exhibit #4. In it, Ms. Vint makes a poignant plea for leniency. [ 17 ] I consider the facts before the Court as circumstantial evidence of a high risk of lethality. I observe, as well, that Mr. Jardine’s prior record, which is before the Court as Exhibit #3, includes prior convictions from July of 2013 for uttering threats and assault that involved Ms. Vint. [ 18 ] I take into account, as well, that when Mr. Jardine was sentenced for those offences in July of 2013, he was put on an eight- month conditional-sentence order.

That sentence was imposed on 16 July 2013; two months later, to the day, Mr. Jardine was back before the Court in relation to an allegation of breach of conditional sentence order. The breach was proven. The order was collapsed in part and Mr. Jardine was ordered to serve 90- days’ imprisonment. [ 19 ] Once again, on 22 November of 2013, Mr. Jardine was back before the Court for another breach of conditional-sentence order; the result of the breach hearing three days later on 25 November was that there was a full collapse of the remanet of the order. [ 20 ] All of these I consider to be aggravating circumstances.

I take into account, as well, that the aggravating principles set out in

section 718.2 of the Criminal Code are applicable here. Ms. Vint was a common-law partner, and certainly there was a position of trust between Ms. Vint and Mr. Jardine; I find support for that proposition in the decision of the Ontario Court of Appeal in R. v. Inwood . [1] [ 21 ] I take into account Ms. Vint’s letter to Mr. Robertson asking that Mr. Jardine be let off lightly; however, in my view, this case is substantially similar to R. v. C.V.M. In that case, our Court of appeal overturned a conditional-sentence order made by the sentencing court, and substituted a term of 22-months imprisonment.

It was clear to the Court of Appeal that the sentencing judge had been motivated—at least in part—to impose a lenient sentence because of a plea for clemency from the victim. Bateman J.A. offered the following insightful analysis: The sentencing Judge noted that a significant deterrent to re-offending is that the fact that, should Mr. MacDonald breach a conditional sentence, he would most likely be incarcerated for the balance of the term. He failed to recognize, however, that any such breach might well involve another assault upon Ms. Gass.

There seems to have been a progression of the level of violence from the first assault to the second insofar as one can determine from the limited information available about the first offence. The fact that Mr. MacDonald purports to have no recollection of this brutal assault speaks of his lack of control when intoxicated. When he is in such a state, it is fair to conclude that the deterrent effect of possible incarceration will have no impact on his behaviour. Had the Judge considered the very real risk of serious harm to Ms. Gass, should Mr.

MacDonald re-offend, he could not have been satisfied that a conditional sentence was appropriate here. [2] [ 22 ] Bateman J.A. then continued at paragraph 37 : Not only is the risk of re-offence high, but the gravity of the potential injury to Ms. Gass should Mr. MacDonald re-offend is unacceptable. In the case of violent offenders, a small risk of very harmful consequences of a future crime may preclude a conditional sentence. It is Ms. Gass’s view that Mr. MacDonald’s abuse of alcohol and violent behaviour is brought on by stress.

One would except him to be under great stress with the confinement of house arrest. The planned continued co-habitation, coupled with Mr. MacDonald’s addiction, his unpredictable and uncontrolled explosions of anger and the progression of violence is a potentially fatal combination. [ 23 ] Then on to the key point at paragraph 42: It is my view that the Judge’s application of the appropriate sentencing principles was overborne by Ms. Gass’s poignant plea that Mr. MacDonald be free to continue to reside with her. Ms. Gass elected not to file a victim impact statement.

She did, however, address the Court orally, at length. It is not uncommon for sentencing judges to be faced with similar pleas for leniency in cases of domestic violence…. [ 24 ] At this point, Bateman J.A. sets out a significant portion of the sentencing transcript with the victim’s remarks to the Court. Justice Bateman resumes at paragraph 43as follows: Ms. Gass’s remarks underscore the extent of her vulnerability and dependence upon Mr. MacDonald.

One wonders if she is able to fairly evaluate the relationship and the dangers that it creates for her. [ 25 ] Bateman J.A. goes on at paragraph 45 to state: Such requests are all too common a part of sentencings of spousal assault. [ 26 ] Bateman J.A. referred with approval to the decision of R. v. Brown and its apposite analysis of quasi-victim-impact evidence that becomes a plea for mercy for the offender:

The plea of the wife that her husband be returned to her and that she not be further victimized by being deprived of his income should not readily be permitted to prevail over the general sentencing policy that envisages imprisonment of the man as not only an instrument of the deterrence of other men but also as an instrument of breaking the cycle of violence in that man’s family, even at the risk of the relationship coming to an end during the enforced separation. [3] [ 27 ] Ultimately, Bateman J.A. assessed the situation this way at para. 47: I agree with the sentencing judge that Mr.

C.V.M.'s circumstances cry out for a rehabilitative sentence. While rehabilitation might better be accomplished in the community, this opportunity has been provided in the past, without lasting success. Here, the desirability for rehabilitation outside of an institutional setting conflicts with the goal of protecting the public from a dangerous person and must therefore give way to that end. [ 28 ] Substitute Mr. Jardine for Mr. MacDonald, Ms. Vint for Ms. Gass and C.V.M. is an analogue of this one. [ 29 ] I do believe that there is an escalating level of violence in this relationship. I presided over Mr.

Jardine’s sentencing hearing in 2013; the facts before me at that time, although alarming, did not approach the level of severity and the high risk of lethality that Mr. Jardine’s actions posed to Ms. Vint on 8 June 2014. [ 30 ] Much as in C.V.M. , I find that Mr. Jardine has little insight into the nature of his alcohol dependency and the effect that it has upon his violent conduct. Indeed, the presentence report satisfies me that Mr. Jardine is not well motivated to seeking treatment and seeks to place the blame for his actions upon Ms.

Vint. [ 31 ] I believe that a substantially deterrent sentence is applicable here. Pursuant to

section 742.1 (

e) of the Criminal Code , this matter is excluded from the conditional sentencing regime. Even if that were not the case, I would have found Mr. Jardine ineligible for a conditional sentence order in any event, because I find that Mr. Jardine’s conduct poses a significant risk to public safety. [ 32 ] There is no joint submission before the Court. [ 33 ] The Court is of the view, applying the principles of sentencing parity, that the Court ought to consider the two-year sentence that was imposed in the case of R. v. Russell [4] as being broadly applicable to this case, although I would note that Mr.

Russell came before the Court with no prior record whatsoever. [ 34 ] The primary principle is one of proportionality. The Court must take into account the seriousness of the offence—which I classify in this case as at the high end of the range of severity—coupled with Mr. Jardine’s high degree of responsibility. Yes, Mr. Jardine was under the influence of alcohol at the time he committed this crime, and the Court certainly recognizes the disinhibiting effect that alcohol may have on human behaviour and conduct . However, Mr.

Jardine is an experienced abuser of alcohol and understands well the volatile effect of alcohol upon his conduct and behaviour. In any event, Mr. Jardine’s consumption of alcohol was voluntary. I find that the consumption of alcohol does not mitigate significantly the seriousness of this offence. [ 35 ] In relation to the charge of assault causing bodily harm upon Ms. Vint, the Court sentences Mr.

Jardine to a term of two- (2) years’ imprisonment to be served in a federal institution. [ 36 ] In relation to the indictable charge of breach of probation, the Court would have imposed a sentence of six (6) months to be served consecutively; however, taking into account the 60 days of custody that Mr. Jardine has served as a result of bail denial and applying the principles laid out by the Supreme Court of Canada in R. v. Carvery , [5] the Court is going to give Mr.

Jardine 90-days’ credit for his period of remand time; therefore the Court will impose a sentence in relation to the breach of probation charge of three (3) months , to be served consecutively, for a total sentence of two (2) years and three (3) months . [ 37 ] The Court will order and direct, in accordance with the Truth in Sentencing Act, that the warrant of committal be endorsed to record that, but for the remand time, the Court would have imposed a six-month consecutive sentence in relation to the breach of probation charge. [ 38 ] There will be a primary-designated-offence DNA collection order on the para. 267(

b) count. In accordance with

section 109 of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition or explosive substance for a period of twenty (20) years. Furthermore, the Court orders and directs that you be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 39 ] The Court will order and direct that the warrant of committal be endorsed in accordance with the provisions of

section 743.21 of the Criminal Code , while in custody Mr. Jardine is to have no contact or communication, either directly or indirectly, with Roberta Lynn Vint. [ 40 ] The warrant of committal will also be endorsed to recommend that Mr. Jardine receive substance-abuse counselling at the earliest possible opportunity. [ 41 ] This offence occurred after the coming- into-force date of the amendments to

section 737 of the Criminal Code . The Court will order and direct that Mr. Jardine pay $200.00 victim surcharge amounts in relation to each count and Mr. Jardine is to have 48 months to pay those victim-surcharge amounts. [ 42 ] Anything further in relation to Mr. Jardine counsel? [ 43 ] Mr. Young : No, Your Honour.

[ 44 ] Mr. Robertson : The Court may not have jurisdiction to entertain this, Your Honour, but I know when a Court imposes provincial time, the Court may recommend an institution. I would suggest, if the Court has the authority, that it recommend Westmorland Institution because generally I found that older gentlemen, who have a good work record, that’s where they have the most productive time when they’re in custody. [ 45 ] The Court : I don’t have a difficulty with that because I believe that that is appropriate. So, we will recommend that, if possible, Mr. Jardine be classified for admission to the Westmorland Institution please. Atwood, JPC