HER MAJESTY THE QUEEN v. JOHN PAUL FORD, 2019 NBPC 17

CANADA 2019NBPC17 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -and- JOHN PAUL FORD BEFORE: Judge Marco R. Cloutier SENTENCING HEARING: September 6, 2019, September 9, 2019, October 10, 2019 and October 11, 2019 in Saint John, New Brunswick DATE OF DECISION: October 31st ,2019 COURT FILE: 08864602 APPEARANCES: Chris Ryan, on behalf of Her Majesty the Queen Wesley McIntosh, on behalf of the accused John Paul Ford REASONS FOR SENTENCE Introduction [ 1 ] M. R. CLOUTIER, PROV CT.

J. : On June 14, 2019, John Paul Ford, pleaded guilty to the following charges under the Criminal Code of Canada : Count 2: on July 9, 2018, at the City of Saint John, County of Saint John, Province of New Brunswick, did with intent to mislead, cause Cst. S. Doiron, a peace officer for the City of Saint John, to enter upon an investigation by reporting that an offence had been committed when it had not been committed, thereby committing the indictable offence, contrary to the provisions of Section 140(1) (

c) of the Criminal Code of Canada and amendments thereto; Count 3: on July 9th, 2018, at the City of Saint John, County of Saint John, Province of New Brunswick, did have care and control of a vehicle to wit: a Ford Escape bearing NB License JPR 055, that was involved in an accident with Scott Robertson at City of Saint John, with the intent to escape civil or criminal liability did fail to stop his vehicle, give his name and address and offer assistance to Scott Robertson, an injured party, thereby committing an indictable offence, contrary to Section 252(1.3) (

b) of the Criminal Code of Canada and amendments thereto. [ 2 ] On September 6, 2019, the Crown withdrew the following charge: Count 1: on July 9th, 2018, at the City of Saint John, County of Saint John, Province of New Brunswick, did operate a motor vehicle in the City of Saint John, County of Saint John, Province of New Brunswick, in a manner dangerous to the public where the dangerous operation has caused the death of Scott Robertson, thereby committing the indictable offence, contrary to the provisions of Section 249(4) of the Criminal Code of Canada and amendments thereto. [ 3 ] At the sentencing hearing, the Crown forcefully argued that Mr.

Ford’s careless driving immediately preceding the motor vehicle accident between his Ford Escape vehicle and Mr. Robertson’s motorcycle (“the accident”) constitute an aggravating factor affecting the overall sentencing. Issue [ 4 ] The issue for the Court is to determine a fit and proper sentence considering all the relevant purposes and principles of sentencing, the circumstances of the offences and the particular circumstances of the offender, John Paul Ford.

Circumstances of the offences [ 5 ] An Agreed Statement of Facts was filed with the Court (S-1). [ 6 ] The circumstances surrounding the accident are not complicated. Nonetheless, the death of Mr. Robertson was certainly a

tragedy compounded by a string of reprehensible acts by Mr. Ford, namely in leaving Mr. Robertson to die unattended at the scene and by misleading police as to the identity of the driver of the vehicle involved in the accident. [ 7 ] On July 9, 2018, at about 4:58 a.m., Mr. Ford was driving eastbound proceeding up a hill on Loch Lomond Road in Saint John, New Brunswick while Mr. Robertson was driving his motorcycle in the opposite lane heading westbound. As Mr. Ford proceeded with a left hand turn into a parking lot located at civic address 159, his Escape vehicle collided with Mr. Robertson’s motorcycle.

The accident occurred in the westbound lane and Mr. Robertson died on impact. [ 8 ] At the time of the accident, Mr. Ford was delivering newspapers. [ 9 ] Mr. Ford immediately fled the scene on foot. However, he returned at about 5:16 a.m. and informed police that Ms. Ann-Marie Savoy was operating the Escape vehicle involved in the accident. [ 10 ] On November 19, 2018, Maxxam Laboratories analyzed a saliva sample found on the driver’s deployed airbag of the Escape vehicle. It confirmed, indeed, Mr. Ford’s DNA. [ 11 ] On February 1, 2019, Mr.

Ford admitted to police in a cautioned statement (S-2 and S-3) that he, not Ms. Savoy, was driving the Escape vehicle involved in the accident. [ 12 ] The following exhibits were included as part of the Agreed Statement of Facts:

a) Photographs of collision scene upon police arrival (various); and

b) Crash Data Retrieval Information (27 pages). Evidence at the sentencing hearing [ 13 ] The Crown requested a sentencing hearing, also known as a “Gardiner hearing”, to call viva voce evidence to try and establish beyond a reasonable doubt that Mr. Ford was driving in the wrong lane (westbound lane) immediately preceding the accident. [ 14 ] The Crown called Sgt. Evan Scott as a witness and he was declared an expert in accident reconstruction. His report was marked as S-6. Sgt. Scott opined that immediately preceding the accident, Mr. Ford entered Mr.

Robertson’s lane of travel “too early, and gradually, as opposed to making somewhat of a sharp turn” to proceed with a left hand turn onto 159 Loch Lomond Road. He also relied on his inspection of both the Escape vehicle and Mr. Robertson’s motorcycle as evidence that the accident was a frontal impact. [ 15 ] The Crown argued that this, coupled with Mr. Ford’s admission in a cautioned statement to police (S-2 and S-3): “I mean I’m ninety percent chance”*, amounts to pre-accident careless driving which constitutes an aggravating factor for sentencing on the s. 252(1.3) (

b) leaving the scene of an accident offence. * as read from Mr. Ford’s transcribed statement. [ 16 ] The Defence did not dispute that Mr. Ford was indeed proceeding in the westbound lane immediately preceding the accident. The reason is simple: Mr. Ford was proceeding with a left hand turn onto 159 Loch Lomond Road. It added that, not surprisingly, the gouge marks left on the asphalt indicated that much. The Defence further pointed out that the Crash Data Retrieval Information suggests Mr. Ford was driving at a low speed and he was gradually proceeding with a left hand turn. Finally, the Defence stated that Sgt.

Scott was candid throughout his evidence in that he cannot backtrack the movement of the Escape vehicle more than a few seconds prior to the accident. I agree. [ 17 ] Essentially, the Crown’s theory is that Mr. Ford caused the accident by his failure to return to the eastbound lane on Loch Lomond Road upon exiting the parking lot from one civic address to another. Instead, Mr. Ford used the westbound lane as a shortcut.

The Crown contends that this, if established beyond a reasonable doubt, would constitute an aggravating factor. [ 18 ] I find that, on the totality of the evidence, the Crown has not proven its theory beyond a reasonable doubt (see s. 724(3)(e) - aggravating factor on sentencing) nor on a balance of probability (see s. 724(3)(d) - relevant fact on sentencing) To be clear, the evidence does not allow me to infer that, immediately preceding the accident, Mr.

Ford was occupying the westbound lane “too early, and gradually, as opposed to making somewhat of a sharp turn” to proceed with a left hand turn onto 159 Loch Lomond Road. Nor does it allow me to make a finding that he was occupying the westbound lane as a shortcut to drive from one civic address to another while delivering papers. [ 19 ] Admittedly, the evidence indicates a frontal collision took place. Recall, however, that the Crash Data Retrieval Information suggests Mr. Ford was proceeding gradually with a left hand turn immediately prior to the accident. It also bears underscoring that Sgt.

Scott testified that he cannot backtrack the movement of the Escape vehicle more than a few seconds prior to the accident. I also find that Mr. Ford’s statement does not establish beyond a reasonable doubt that he was using the westbound lane (Mr. Robertson’s lane of travel) to drive from one civic address to another. In my view, Mr. Ford’s use of the words “I mean I’m ninety percent chance”*, amongst a 51- page transcribed statement, does not amount to an admission that he was driving in the westbound lane as a shortcut. I find it equally clear that Mr.

Ford’s answer was provided in response to whether a frontal collision had occurred as previously referred to by the interrogating officer. * as read from Mr. Ford’s transcribed statement.

[20] In the result, I find that the Crown did not establish beyond a reasonable doubt at the sentencing hearing anything that theDefence had not already conceded; that is, Mr. Ford caused the accident and, arguably, in civil proceedings, his negligence couldpossibly be established given the high degree of prudence expected from users of the road about to make a left hand turn. Otherwise, Imake no findings of facts for civil liability purposes, a task properly left to the trier of fact at the Court of Queen’s Bench, Trial Division.The sole issue before the Court is to determine what is a fit and proper sentence for the offences under ss. 140(1)(

c) and 252(1.3)(

b) ofthe Criminal Code. [21] One last point. The Crown urged this Court to nonetheless consider Mr. Ford’s pre-accident driving - regardless of the extent ofhis careless driving - as an aggravating factor with respect to sentencing on the s. 252(1.3)(

b) leaving the scene of the accident offence. Itrelies on other court’s decision in Canada as a precedent, including some from the Provincial Court of New Brunswick in R v West, 2010NBPC 28 at par. 7. See also R v Foley, NSSC 449 at paras. 35 and 36. [22] I am not persuaded that an accused’s manner of driving immediately preceding an accident can be considered as an aggravatingfactor for the purpose of sentencing for an offence under s. 252(1.3)(

b) nor does West, supra, stand for such proposition. In my view, thesalient facts for such an offence start from the time an accident has already occurred. [23] Given the diversity of opinions from other courts, this is, evidently, not an easy decision to render. I am comforted, however, bythe Court of Appeal of New Brunswick’s decision in R v Howe, 2007 NBCA at par. 28 where it quotes with approval Preston J. in R vTaylor, 2000 BCSC 734 , [2000] B.C.J.

No. 928 (QL): The authorities indicate that the sentence for the offence of failing to stop at the scene of an accident may be imposed concurrently to themore serious sentence of criminal negligence or impaired driving causing death or may be imposed consecutively. It is my view that it ismore appropriate to consider the failure to stop in circumstances such as these as an event separate from the circumstances of thecollision. Accordingly, I will deal with it in the context of a consecutive sentence.

It is important therefore that it not be considered as anaggravating factor in determining the appropriate sentence for the offence of impaired driving causing death. It is important, as well, tomaintain the [principle] that the totality of the sentence be consistent with the totality of sentences for similar constellations of offences.[Emphasis added] [24] Moreover, I am not disposed to treat the manner of driving immediately preceding the accident as an aggravating factor becausethe fact an accident already occurred, in and of itself, is an essential element of the offence to which Mr.

Ford already pleaded guilty. Putdifferently, the offence of leaving the scene of an accident, pursuant to s. 252, is based upon the care and control of a motor vehicle thathad been involved in an accident and leaving the scene without leaving a name and address or offering assistance. It follows that, in myview, the manner of driving prior to or which led to an accident is not an aggravating factor under s. 252; it is a predicated part of theoffence. Circumstances of the offender [25] I had the benefit of a pre-sentence report. Mr. Ford is a 47-year-old man with a grade eight (8) education.

At the time of theaccident, he was delivering papers for the Telegraph Journal for the past five (5) years. He was also involved in a relationship with Ms.Ann-Mary Savoy since 2015. Other than reported difficulties controlling his anger, Mr. Ford has enjoyed good physical healththroughout his life. In the past ten (10) years, Mr. Ford has used alcohol occasionally which has not presented any difficulties for him. Criminal record [26] Mr. Ford has an extensive record which, remarkably, comprises of more than seventy (70) offences from 1992 to 2013.

Of note,his record includes one prior conviction in 2013 under s. 252(1) failing to stop at the scene of an accident. I would also point out that Mr.Ford’s record includes two (2) convictions, namely in 1994 and 1995, under s. 140(1)(

c) public mischief by making false statement. Victim impact statements [27]

Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for determining the sentenceto be imposed. In R v Berner, 2013 BCCA 188 , the Court of Appeal held (at par. 12) that victim impact statements play animportant role in the sentencing process. At par. 13, the appellate court stated, "the content of the statement is restricted to a descriptionof the harm done to, or loss suffered by, the victim arising from the commission of the offence." [28] The Court received the following victim impact statements:

a) Joanne Robertson;

b) Ron Priest (declined);

c) Walt Malone;

d) Dylan Robertson;

e) Kaela Robertson;

f) Robyn Robertson;

g) Nancy Mikoluk; and

h) Marion Kelly.

[29] Section 722(8) directs the court to take into account the portions of the statement it considers relevant and disregard any otherportion. [30] On October 22, 2019, Defence Counsel filed victim impact statements with highlighted portions he argues are related to theoffences before the Court. He respectfully, and professionally I would add, submits that Ms. Kaela Robertson’s victim impact statementdoes not relate to the offences before the Court. I generally agree with the Defence, though I would put it somewhat differently.

I wouldstate that, to the extent that any portion of the victim impact statements describe the impact of Mr. Ford causing the unfortunate death ofMr. Robertson, by virtue of s. 722(8), I am bound by law to disregard such portions. Recall that Mr. Ford is not charged with causing thedeath of Mr. Robertson.

Rather, he was charged with and pleaded guilty to offences of leaving the scene of an accident (s. 252(1.3)(b))and public mischief (s. 140(1)(c)). [31] Yet, I would say this: although I will not reproduce the contents of the victim impact statements, I would like to re-assure theRobertson family members that I heard what they had to say, I read their respective statements and I understand the traumatizing effectMr. Ford’s actions had on their lives. Not only did Mr.

Ford intend to mislead police as to the identity of the individual involved in theaccident but, even more devastating, he failed to stop at the scene of the accident and left Mr. Robertson’s mortal remains unattended,thereby exhibiting a grave failure to comport with standards of humanity and decency. And I believe this is a picture which still hauntsthe Robertson family. Purposes and principles of sentencing [32] Regretfully, nothing this Court can do will change or alleviate the Robertson’s suffering. More importantly, nothing I write inthis decision is meant to diminish in any way the tragedy of Mr.

Robertson’s death. In determining the appropriate sentence, I must beguided by the principles of sentencing set out in the Criminal Code and the relevant case law strictly for such offences. The sentence Iimpose must also be the proper sentence for this offender who committed these offences in these circumstances. [33] I would pause to make parenthetical remarks: I want to make it abundantly clear that this court is not and will not be influencedby public demands for vengeance against those who commit crimes. It is not part of the sentencing process to exact revenge against anaccused.

The point was admirably made by Lamer C.J. in Regina v M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at par. 80. [34]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing which is to contribute, along with crimeprevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [35]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires that a sentence be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R vLacasse, 2015 SCC 64 , at par. 130. The Supreme Court of Canada held that proportionality is the fundamental and over-ridingprinciple of sentencing. It is the sine qua non of a just sanction. [36] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [37]

Section 718.2(

b) codifies the parity principle which holds that a sentence should be similar to sentences imposed on similaroffenders for similar offences in similar circumstances. Equally important, s. 718.2(

c) provides that where consecutive sentences areimposed, the combined sentence should not be unduly long or harsh. Penalty [38] Section 252(1.3) of the Criminal Code provides that every person who commits an offence such as the one before the Court isguilty of an indictable offence and liable to imprisonment for life. As indicated in many cases, a conditional sentence is not available tothis offender by reason of

section 742.1 of the Criminal Code. An indictable offence under s. 140(1)(

c) carries a maximum penalty of aterm of imprisonment not exceeding five (5) years. Position of the parties on sentencing [39] The Crown submitted that a fit and proper sentence, globally, would be a term of imprisonment of four (4) years to be reduced byany time served on remand since February 1st, 2019 at a credit of 1.5 for each day. Moreover, the Crown urged this Court to imposesentencing on the offence under s. 140(1)(

c) public mischief consecutive to the one imposed under s. 252(1.3)(b), leaving the scene of the accident. It submitted that, as the s. 140(1)(

c) provisions address different societal interests than s.252(1.3)(c), consecutive sentences ought to be imposed. [40] On the other hand, the Defence argued that a global sentence in the range of twelve (12) to eighteen (18) months imprisonment,less time served on remand, would be a fit and proper sentence along with a driving prohibition of three (3) to five (5) years. Otherwise,it does not dispute the ancillary DNA order. Aggravating factors [41] I would repeat that, in my opinion, Mr. Ford’s manner of driving immediately preceding the accident does not constitute anaggravating factor.

His criminal record, however, is a serious aggravating factor. [42] In R v McAndrew, 2004 BCCA 368 , [2004] B.C.J. No. 1345, the British Columbia Court of Appeal held that anaccused’s prior conviction for leaving the scene of an accident is a serious aggravating factor. So too here.

[43] Of note, Mr. Ford has a prior conviction under s. 252(1) that distinguishes this case from other cases referred to by Counsel.What’s more, Mr. Ford has, amongst the some seventy (70) entries on his record, two (2) prior convictions under s. 140(1)(

c) publicmischief by making false statement. [44] With respect to the offence of public mischief by making false statement, I find it an aggravating factor the fact Mr. Ford “causedpolice officers” to “continue the misleading investigation” from July 2018 to February 2019, to track the wording of s. 140(1)(c). To beclear, it is the intent to mislead the officers for such a long duration that is aggravating. This was not an instance where Mr. Fordadmitted within a few days or weeks that he, not Ms. Savoy, was driving the Escape vehicle involved in the accident.

Mitigating factors [45] A significant mitigating factor is Mr. Ford’s guilty plea to the charges. By pleading guilty, Mr. Ford brought finality to thesecriminal proceeding and reduced the trauma and inconvenience to witnesses and Mr. Robertson’s family members. [46] The British Columbia Court of Appeal in R v Wong, 2016 BCCA 305 at par. 39, stated that, where it is present, remorseis a mitigating factor on sentencing. Mr. Ford pleaded guilty, which is generally acknowledged as a sign of remorse. His distress was alsopalpable when Mr. Robertson’s family members read their victim impact statements. Likewise, Mr.

Ford’s pre-sentence report indicatesthat he has taken responsibility for his actions, he expressed remorse and regret and I accept that his remorse is genuine. Range of sentence [47] In R v Howe, supra, the Court of Appeal of New Brunswick held that a proper sentence for an offence under s. 255(3) - impaireddriving causing death - should have been imprisonment for a term of three (3) years and six (6) months under s. 252(1.3)(b), with theterms of imprisonment to be served consecutively.

The Court of Appeal added that had Howe not been sentenced to three (3) years unders. 255(3), the leaving the scene of an accident offence would have carried a longer sentence. [48] In R v West, supra, the 19-year-old accused, with no record, pleaded guilty and was convicted of failing to stop at the scene of anaccident involving death. A Judge of the Provincial Court of New Brunswick sentenced the accused to a term of imprisonment ofeighteen (18) months. [49] In R v Foley, supra, the 27-year-old accused was convicted of failing to stop at the scene of an accident contrary to s. 252(1.3)(b)of the Criminal Code.

A Justice of the Nova Scotia Supreme Court sentenced the accused to a term of imprisonment of one (1) year. [50] In R v Young, [2011] N.S.J. No. 518, the 21-year-old accused pleaded guilty to failing to stop at the scene of the accident. Theaccused had struck and killed the victim. The accused had a minor record. The Nova Scotia Provincial Court imposed a sentence ofimprisonment of (18) eighteen months. [51] In R v Gourlay 2018 BCSC 884, the 42-year-old first time offender pleaded guilty to an offence under s. 252(1.3)(

b) as he failedto stop at the scene of an accident which resulted in death. The British Columbia Supreme Court imposed a term of imprisonment of ten(10) months. [52] In R v Dhaliwal 2012 MBQB 155, the 38-year-old accused pleaded guilty to an offence under s. 252(1.3) of the Criminal Codewhere the victim’s body was dragged for a short distance under the vehicle resulting in death. He had a prior criminal record comprisingof one (1) impaired driving offence along with two (2) failures to comply with a recognizance.

The Manitoba Court of Queen’s Benchimposed a term of imprisonment of twelve (12) months. [53] In R v Didechko, 2016 ABQB 552, the accused, a first-time offender, was sentenced to a term of imprisonment of two (2) yearsfor an offence under s. 252(1.3). At par. 52, Mr. Justice A.W. Germain stated that cases suggesting a sentence in the range of six (6) totwelve (12) months are simply too low for this type of offence which carries a maximum penalty of life imprisonment. [54] I fully endorse the thrust of what A.W.

Germain J. stated. [55] Where, like here, this is the accused’s second conviction for leaving the scene of an accident, it is a serious aggravating factorthat distinguishes Mr. Ford’s case from all others referred to by Counsel. Therefore, upon considering the parity principle as per s.718.2(b), I find that Mr. Ford is not a “similar offender” to those referred to in caselaw above. Quite the contrary. With more thanseventy (70) entries on his criminal record, he is no stranger to the criminal justice system.

Concurrent VS Consecutive [56] I conclude that there are different societal interests to be protected by offences set out in s. 252(1.3)(

b) of the Criminal Code, onthe one hand, and s. 140(1)(c), on the other.

In coming to this conclusion, I am mindful of the teachings by the New Brunswick Court ofAppeal in R v Peterson, 2017 NBCA 84, but I would also note that in R v Howe, supra, Richard J. (as he was then) observed thatmultiple appellate courts have departed from concurrent sentences where the offences, though part of the same transactions, are intrusionon different legally protected interests. [57] There is a strong societal interest to be served by having drivers stop at the scene of an accident to render assistance to vulnerableand injured persons, regardless of fault.

See R v Gummer (1983), (ON CA), 1 O.A.C. 141. at par. 49. [58] There is equally a strong, albeit much different, societal interest to dissuade people from causing peace officers to begin or tocontinue an investigation with the intention of misleading. [59] In my view, the appropriate sentencing regime here is consecutive sentences. The nature of the two offences, with one arguablybuilding on the other but with distinctly separate essential elements and apart in time, means that the sentences should be consecutive.Let me explain.

The first offence, that of leaving the scene of the accident, was fully completed when Mr. Ford fled the scene on foot.

The second offence, public mischief, began when Mr. Ford returned to the scene and caused the peace officers to begin and continue an investigation with the intention of misleading them. [ 60 ] Although I will impose consecutive sentences with respect to both offences, as per the teachings of the Court of Appeal of New Brunswick in R v Peterson , supra , I will nonetheless have taken a “last look” at the total sentence and, in considering the totality principle, have satisfied myself that the total sentence is not unduly long or harsh for Mr. Ford.

Disposition [ 61 ] Having considered all the relevant facts, the circumstances of these offences and of Mr. Ford, the sentencing principles and case authorities, along with mitigating and aggravating factors, including a lengthy criminal record, as well as the impact these offences had on the victims, and keeping in mind that s. 252(1.3)(

b) carries a maximum penalty of imprisonment for life, I impose sentencing on Mr. Ford as follows: On Count 3, the offence of leaving the scene of the accident contrary to s. 252(1.3) (b), I sentence Mr. Ford to a period of incarceration of twenty eight (28) months less time served on remand since February 1, 2019 at a credit of 1.5 for each day spent on remand; On Count 2, the offence of public mischief, intending to mislead a peace officer contrary to s. 140(1) (c), I sentence Mr.

Ford to a period of incarceration of three (3) months to be served consecutively to the other jail sentence I imposed on Count 3; There will be a DNA order under s. 487.04 – secondary designated offence (c)(iv). The Defence did not take issue with the Crown’s request. Mr. Ford had a prior record and the offence was a serious one. At any rate, the opinion of the Appeal Courts across Canada suggests that it will be rare that the order is not made; and On Count 3, pursuant to s. 259(2) of the Criminal Code , upon release from prison, Mr.

Ford is prohibited from operating any motor vehicle on any street, road, highway or other public place in Canada for five (5) years. Dated at Saint John, New Brunswick, this 31st day of October 2019. ________________________________________ Marco R. Cloutier Judge of the New Brunswick Prov incial Court