R. v. Jordan, 2016 NSPC 39

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Jordan , 2016 NSPC 39 Date: 2016-04-27 Docket: 2755245, 2958094, 2958095 Registry: Pictou Between: Her Majesty the Queen v. Clifton Curtis Jordan SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: April 27, 2016 in Pictou, Nova Scotia Charge: Sections 259(4) x 2 and 145(5) of the Criminal Code Counsel: Malcolm Jeffcock, Q.C. for the Nova Scotia Public Prosecution Service Stephen Robertson, Nova Scotia Legal Aid, for Clifton Curtis Jordan By the Court: [ 1 ] The court is going to order and direct that the informations be endorsed to record that Mr.

Jordan chose to make an allocution to the court after having been invited to do so in accordance with

section 726 of the Criminal Code . [ 2 ] Clifton Curtis Jordan pleaded guilty to a single

summary count of operating a motor vehicle while prohibited, contrary to sub- section 259(4) of the Criminal Code , case number 2755245. [ 3 ] Mr. Jordan is also before the court for sentencing in relation to two indictable counts, one of, again, driving while prohibited, case number 2958094, contrary to sub-section 259(4) of the Code , and the other for failing to attend court contrary to sub-section 145(5) of the Code , case number 2958095. Mr. Jordan elected to have those charges dealt with in this court and pleaded guilty.

Circumstances of the offences [ 4 ] The facts put before the court by the prosecution for the purposes of sentencing in accordance with ss. 723 and 724 of the Code are that Mr. Jordan was stopped by police on 16 July 2014 as he was driving away from a local grocery store; the investigator checked CPIC and discovered that Mr. Jordan was a prohibited driver. A bit over a year and a half later, on 18 February 2016, Mr. Jordan was found to have driven again, still under a prohibition. The fail-to-attend-court charge got laid when Mr. Jordan failed to show up for a sentencing hearing.

Circumstances of the offender [ 5 ] The court was presented with a number of exhibits by the prosecution. Exhibit number one is a bail report that sets out Mr. Jordan’s prior record. [ 6 ] Mr. Jordan was sentenced on 21 January 2011 to a fine of $1,000 and a one-year driving prohibition in relation to a para. 253(1)(

b) drive-over-.08 offence. [ 7 ] Mr. Jordan was sentenced on 25 February 2013 to a $750 fine and a two-year period of driving prohibition for a driving-while-

disqualified sub- section 259(4) Criminal Code charge. The offence date was 25 June 2011, less than half a year after the start date of the 21 January 2011 prohibition order. [ 8 ] Mr. Jordan was sentenced on 25 February 2013 to an intermittent period of custody and a concurrent two-year period of driving prohibition in relation to a sub- s. 259(4) offence that occurred on 27 August 2011. [ 9 ] On 18 July 2014—and that would have been only two days after Mr. Jordan had gotten picked up in New Glasgow on the first-in-time count for which he is to be sentenced today—Mr.

Jordan was sentenced to a 30-day period of intermittent custody in relation to a charge of driving while disqualified, and there was a further period of driver prohibition imposed from 18 July 2014 to 18 July 2017. Mr. Jordan was also sentenced on that date, 18 July 2014, to a period of 30 days, to be served intermittently, in relation to a charge of failing to appear. [ 10 ] Additionally, Mr. Jordan has findings of guilt under the Motor Vehicle Act for offences involving operating a vehicle while licence revoked or suspended. [ 11 ] Mr.

Jordan’s other criminal history includes dated convictions for theft, breach of undertaking, possession of stolen property, flight from police, and possession under the Controlled Drugs and Substances Act . [ 12 ] A prior record does not operate as an aggravating factor in the sense that a person who is to be sentenced is not to be re- sentenced for offences committed in the past for which penalties have been served in full; however, a prior record may signify to a court whether a person being sentenced would be a good candidate for a rehabilitative sentence: See R. v.

Naugle , 2011 NSCA 33 at para. 47 . [ 13 ] The positive and mitigating factors are that Mr. Jordan pleaded guilty and accepted responsibility for his actions. Furthermore, after several years of an earlier work-related disability, Mr. Jordan is now gainfully employed; this allows Mr. Jordan to contribute to his community and to his family. [ 14 ] I refer to these as mitigating factors, not in the sense that they lessen the seriousness of Mr. Jordan’s offences; however, they do offer a circumstantial guarantee that Mr.

Jordan would be a guardedly favourable candidate for a rehabilitative sentence. [ 15 ] The key aggravating factor is that Mr. Jordan’s offences all involve violating orders of the court. Court orders are compulsory processes of the court; no one is permitted lawfully to opt out of a court order. If a party to a proceeding should be ordered to do something or refrain from doing something by a court and find the order objectionable, the remedy is due process, not defiance.

The Provincial Court is on the lowest rung of the judiciary, and there are plenty of venues for getting decisions of this court reviewed judicially if one is unhappy with an outcome. Recommendations of counsel [ 16 ] The prosecution seeks a sentence of four to six months in jail in relation to the 2014 charge and a consecutive period of nine to twelve months incarceration in relation to the 2016 offences. The prosecution seeks additional prohibitions of three years for each of the

section 259 Criminal Code offences before the court. This is not an unreasonable recommendation, considering the need to denounce and deter the violations of court orders prohibiting driving. [ 17 ] Defence counsel urges the court to consider either a suspended sentence or a short, sharp period of intermittent incarceration. Availability of a conditional sentence [ 18 ] At the conclusion of submissions by counsel, I raised the issue of a conditional-sentence order. None of the offences before the court would be excluded from the conditional-sentencing regime under

section 742.1 of the Criminal Code : there is no mandatory- minimum term of imprisonment, the offences did not result in bodily harm, did not involve import-export trafficking or the production of drugs, did not involve the use of a weapon, and did not involve any para. 742.1(

f) Code offences. [ 19 ] Sentencing is a highly individualized process: R. v. Ipeelee , 2012 SCC 13 at para. 38 . [ 20 ] In determining a fit sentence, the court ought to take into account any relevant aggravating or mitigating circumstances; that is prescribed by para. 718.2(

a) of the Code . The court must consider also objective and subjective factors related to the offender's personal circumstances and the facts pertaining to the particular case: R. v. Pham , 2013 SCC 15 at para 8 . [ 21 ] Assessing an offender's moral culpability is an extremely important function in the determination of any sentence.

This is because a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; that fundamental principle is set out in s. 718.1 of the Code . [ 22 ] In Ipeelee at para. 37 , the Supreme Court of Canada noted that proportionality is tied closely to the objective of denunciation. Proportionality promotes justice for victims and proportionality seeks to ensure public confidence in the justice system. [ 23 ] In the recent decision of R. v.

Lacasse , 2015 SCC 64 the Supreme Court of Canada confirmed that proportionality is a primary principle in considering the fitness of a sentence. The severity of a sentence depends upon the seriousness of the consequences of a crime and the moral blameworthiness of the individual offender.

The Court recognized at para. 12 that determining proportionality is a delicate exercise, because both overly lenient and overly harsh sentences imposed upon an offender might have the effect of undermining public confidence in the administration of penal justice. [ 24 ] In determining an appropriate sentence, the court is required to consider, pursuant to para. 718.2(

b) of the Code , that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is the principle of sentencing parity. The court must apply the principle that an offender not be deprived of liberty if less restrictive sanctions might be appropriate in the circumstances; furthermore, the court must consider all available sanctions other than imprisonment that are

reasonable in the circumstances. [ 25 ] In examining Mr. Jordan’s prior record, I take into account his prior findings of guilt for sub- section 259(4) offences. I know nothing about the circumstances of those offences other than they resulted in Mr. Jordan having been convicted and having received short, sharp, intermittent custodial sentences. Mr. Jordan has never, from my review of the record, been required to comply with a conditional-sentence order. [ 26 ] Mr. Jordan has a record for failing to comply with terms of bail under sections 145(3) and 145(5.1) of the Criminal Code .

I know nothing about the circumstances of those offences, the seriousness of the offences, or Mr. Jordan’s degree of responsibility for them. In my view, having that sort of information presented to the court at a sentencing hearing is helpful in determining whether a person being sentenced might be a good candidate for a community-based sentence. This is because bail violations may vary in severity and gravity. Certain bail violations may, indeed, arise from conduct demonstrating a high level of criminality.

On the other hand, bail violations might arise from technical violations of fairly minor conditions. [ 27 ] Accordingly, absent evidence regarding the circumstances of those bail violations, it is difficult for the court to attach to those violations signal adverse inferences regarding Mr. Jordan’s eligibility for a conditional-sentence order. However, I certainly take those prior findings of guilt into account, and I am mindful that there is no burden upon the prosecution to negative CSO eligibility. [ 28 ] I note that Mr.

Jordan has been subject to stringent terms of release since February of 2016, when he was admitted to bail before this court. [ 29 ] The court is also required to take into account, in determining a fit and proper sentence, principles of sentencing parity. I have reviewed the decision of this court rendered in R. v. Aird , 2013 NSPC 63 . In that case, the court sentenced the offender to a three-year period of imprisonment for an array of offences involving the use of motor vehicles. Mr.

Aird was facing a charge, indeed, of driving while prohibited, but also a charge of refusal and a charge of driving while prohibited that occurred at the same time as the refusal. Mr. Aird had a record that demonstrated an intermittent, but almost uninterrupted, criminal history over the preceding decade of operating motor vehicles while impaired and a consistent criminal history of operating motor vehicles while prohibited. In my view, Mr. Aird’s degree of criminality exceeded greatly the seriousness of the offences before the court today and I find that would be sufficient to distinguish Mr.

Jordan’s situation from Mr. Aird’s. As well, Mr. Aird was the subject of a notice of greater penalty and that brought into play mandatory-minimum sentencing under para. 255(1)(

a) of the Code ; that is not a factor before the court today, as there are no mandatory minimums for sub- s. 259(4) offences (other than a one-year prohibition) or for s. 145 offences. [ 30 ] Mr. Jordan is gainfully employed. The prosecution argues very compellingly that general deterrence ought not to be “sacrificed on the altar of employability”; however, neither should reformation and rehabilitation be sacrificed on the altar of general deterrence. I state that, mindful of the fact that Mr.

Jordan has never had the benefit of a conditional sentence order. [ 31 ] A conditional sentence order, as outlined by the Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 at paras. 22 , 23, 28-38, is substantially and essentially punitive.

It has a deterrent effect upon offenders and among the strongest deterrents are the swift and certain consequences of violation: an offender who is found to have breached a conditional sentence order is subject to detention and reverse-onus bail (as per sub-s. 742.6(2) of the Code ); breach hearings are accelerated, the burden upon the prosecution of proving a breach is on a balance of probabilities only, and hearings can be conducted with signed statements of witnesses rather than in-court testimony (as per sub-ss. 742.6(3), (4) and (9)); finally, as decided in Proulx at para. 39 , an offender who is found to have violated a conditional-sentence order is subject to the presumption that any unexpired portion of sentence ought to be ordered served in custody. [ 32 ] I take into account all of these factors; I note that on neither of the occasions that Mr.

Jordan was apprehended did he appear to be under the influence of alcohol. Furthermore, on neither occasion did he appear to be operating a motor vehicle in a dangerous fashion. Mr. Jordan’s criminal conduct did not jeopardize public safety this time. [ 33 ] I agree entirely with the prosecution that a purely community-based sentence would not reflect adequately the need for denunciation, specific and general deterrence. A term of imprisonment of less than two years, as recommended by the prosecution, would be appropriate.

As I stated earlier, all of the charges before the court are CSO eligible. [ 34 ] I find that imposing a conditional sentence order, in the unique circumstances of this case, would be consistent with the fundamental purposes and principles of sentencing and would not endanger the safety of the community.

However, as noted in Proulx at para. 44 : a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration . . . . [ 35 ] This factor warrants lengthening the term of the CSO I intend to impose. [ 36 ] However, I am mindful of the fact that the court must take into account the jump principle. That is, sentencing increments should be gradual, and sentences for successive offences should not result in substantial increases over those imposed in the past.

I do intend to take that jump principle into account as the court is required to do pursuant to R. v. Bernard , 2011 NSCA 53 . [ 37 ] Therefore, Mr.

Jordan, the sentence of the court will be as follows: • in relation to the section 259(4) Criminal Code offence, from 16 July 2014, case number 2755245, there will be a conditional sentence order to be served in the community of 90 days; • in relation to the section 259(4) Criminal Code offence, from 18 February 2016, case number 2958094, there will be a consecutive conditional sentence order of 120 days; • in relation to section 145(5) Criminal Code offence, from 18 February 2015, case number 2958095, there will be a consecutive conditional sentence order of 60 days.

[ 38 ] This results in a total sentence of 9 months, or 270 days.

It is to be served in the community under the terms of a conditional sentence order. [ 39 ] The terms of the CSO are as follows: • BE SUBJECT TO ELECTRONIC SUPERVISION AS DIRECTED BY YOUR SUPERVISOR; • SIGN ALL CONSENTS TO RELEASE OF INFORMATION REQUIRED BY YOUR SUPERVISOR TO ASSIST IN REHABILITATIVE SERVICES. • MAKE REASONABLE EFFORTS TO MAINTAIN EMPLOYMENT AS DIRECTED BY YOUR SENTENCE SUPERVISOR; • NOT POSSESS, TAKE OR CONSUME ANY CONTROLLED SUBSTANCE AS DEFINED IN THE CONTROLLED DRUGS AND SUBSTANCES ACT EXCEPT ACCORDING TO A PHYSICIAN’S PRESCRIPTION FOR YOU • HOUSE ARREST: • BE CONFINED INSIDE YOUR APARTMENT AT 346 FREDRICK STREET, APT#1, NEW GLASGOW, NOVA SCOTIA OR SUCH OTHER RESIDENCE AS APPROVED IN WRITING BY YOUR SUPERVISOR, IN ADVANCE OF ANY MOVE, AT ALL TIMES STARTING IMMEDIATELY AND ENDING: AFTER 6 MONTHS (EXCEPT AS INDICATED BELOW). • EXCEPTIONS: (WHEN TRAVELLING TO AND FROM ANY OF THE EXCEPTIONS TO THE HOUSE ARREST OR CURFEW PROVISIONS, YOU ARE TO TRAVEL BY THE MOST DIRECT ROUTE FROM YOUR RESIDENCE, NO STOP OFFS, DETOURS OR SIDE TRIPS). • WHEN AT REGULARLY SCHEDULED EMPLOYMENT FOR A PERIOD NOT EXCEEDING 12 CONSECUTIVE HOURS; IF YOUR JOB REQUIRES TO SPEND ANY PERIOD OF TIME EXCEEDING 12 CONSECUTIVE HOURS AWAY FROM YOUR RESIDENCE AS FIXED BY THIS ORDER OR AS APPROVED BY YOUR SUPERVISOR, YOU MUST OBTAIN THE WRITTEN APPROVAL OF YOUR SUPERVISOR IN ADVANCE OF ANY SUCH PERIOD OR SHIFT. • WHEN DEALING WITH A MEDICAL EMERGENCY OR MEDICAL APPOINTMENT INVOLVING YOU OR A MEMBER OF YOUR HOUSEHOLD; YOU MUST NOTIFY YOUR SUPERVISOR WITHIN 24 HOURS OF AY SUCH EMERGENCY TREATMENT. • WHEN ATTENDING A SCHEDULED APPOINTMENT WITH YOUR LAWYER OR A SUPERVISOR. • WHEN ATTENDING COURT AT A SCHEDULED APPEARANCE OR UNDER SUBPOENA; • WHEN ATTENDING A COUNSELLING APPOINTMENT OR A TREATMENT PROGRAM AT THE PRIOR WRITTEN DIRECTION OF OR WITH THE PRIOR WRITTEN PERMISSION OF YOUR SUPERVISOR; • WHEN ATTENDING TO YOUR PERSONAL NEEDS, FOR NOT MORE THAN THREE

(3) HOURS PER WEEK, APPROVED IN ADVANCE BY YOUR SENTENCE SUPERVISOR, IN WRITING. • ANY OTHER VALID EXCEPTION, APPROVED IN WRITING, IN ADVANCE BY YOUR SUPERVISOR, SETTING OUT IN WRITING THE PRECISE TIMES WHEN AND PLACES WHERE YOU MAY BE OUTSIDE YOUR RESIDENCE. • COMPLY WITH ANY VOICE RECOGNITION HOUSE ARREST CHECK DIRECTED BY YOUR SUPERVISOR • COMPLIANCE: • PROVE COMPLIANCE WITH THE HOUSE ARREST CONDITION BY PRESENTING YOURSELF AT THE ENTRANCE OF YOUR RESIDENCE SHOULD YOUR SUPERVISOR OR A PEACE OFFICER ATTEND THERE TO CHECK COMPLIANCE. • REPORT FOR ANY ASSESSMENT, COUNSELLING OR PROGRAMMING AS DIRECTED BY YOUR SUPERVISOR. • NOT HAVE ALCOHOL IN YOUR BODY OUTSIDE YOUR RESIDENCE. • COMPLY IMMEDIATELY WITH ANY DEMAND FOR URINALYSIS OR OTHER ALCOHOL OR CONTROLLED SUBSTANCE SCREENING AS DIRECTED BY YOUR SUPERVISOR OR A PEACE OFFICER. • ATTEND, PARTICIPATE IN AND CO-OPERATE WITH ANY ASSESSMENT, COUNSELLING OR PROGRAM DIRECTED BY YOUR SUPERVISOR AND PAY ANY ASSOCIATED COSTS AS DIRECTED BY YOUR SUPERVISOR.

YOU MUST REPORT ANY MISSED APPOINTMENTS TO YOUR SUPERVISOR IMMEDIATELY. • KEEP THE PEACE AND BE OF GOOD BEHAVIOUR. • NOTIFY THE COURT OR YOUR SUPERVISOR OF ANY CHANGE IN YOUR NAME, ADDRESS OR EMPLOYMENT. • REPORT TO A SUPERVISOR WITHIN 72 HOURS.

[ 40 ] Given the duration of the conditional sentence order, I believe that the rehabilitative aspects of sentencing will be able to be accomplished within the lifetime of the order and the court declines to impose any additional period of probation. [ 41 ] In addition, in relation to the 2014 offence that was prosecuted summarily, there will be a $100 victim-surcharge amount. In relation to the two offences from 2016 which were prosecuted by indictment, there will be $200 victim-surcharge amounts in relation to each of those charges. Mr.

Jordan will be allowed 24 months to pay those surcharges. [ 42 ] In relation to the driving while prohibited charge, from 16 July 2014, case number 2755245, the court is obligated pursuant to the provisions of para. 259(1) (

a) of the Criminal Code to impose a period of prohibition. The court prohibits you from operating a motor vehicle in relation to that charge, on any street, road, highway or other public place for a period of two years. The court orders pursuant to sub- section 259(2.1) of the Criminal Code that the two-year period of prohibition in relation to case number 2755245 be served consecutively to any existing period of prohibition. [ 43 ] In relation to the

section 259 offence from 18 February 2016, that is case number 2958094, there will be an additional period of two years of prohibition, and that period of prohibition is to be served consecutively to any existing periods of prohibition, including the period of prohibition just imposed. [ 44 ] The court orders and directs in relation to the period of prohibition for section 259(4) of the Criminal Code , from 16 July 2014, that there be an interlock-ineligibility period of 12 months.

In relation to the period of prohibition that was imposed in relation to the 18 February 2016 charge, the court orders a period of interlock ineligibility of two years; however, there is no provision in sub-s. 259(1.2) of the Code for making that two-year period of ineligibility consecutive to the first. [ 45 ] Mr. Jordan, the only way this works is if you stick to the order. The wiggle room that you have right now is the space between a rock and a hard place. Two hundred and seventy days is not a long time served in the community.

Two hundred and seventy days served in jail would, on the other hand, feel like a very long time. It would not be able to be served intermittently. It would, in all likelihood, result in the loss of your employment which would affect dramatically your ability to provide support for your family whom I know you love dearly. [ 46 ] Now, when I read the pre-sentence report, it is clear to the court that you are a person who has incredible talent, musical talent particularly, and someone who is accustomed to punching through the pain and getting back to doing hard work. You have accomplished great success Mr.

Jordan in overcoming that disabling injury—something that, for many people, would have meant the end of a working career. You have chosen a path that can lead to further success and I know you are going to stay on that path. JPC