R. v. Dafoe, 2023 BCPC 48

Citation: R. v. Dafoe 2023 BCPC 48 Date: 20230217 File Nos: 56426-1; 34297-1 Registries: Vernon; Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. DENNIS RAE DAFOE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: M. Blow Counsel for the Defendant: N. Jacobs Place of Hearing: Vernon , B.C. Dates of Hearing: January 25 & February 2, 2023 Date of Judgment: February 17, 2023

INTRODUCTION [ 1 ] Dennis Dafoe pled guilty to two charges of driving while prohibited under the Criminal Code . Those offences occurred on April 24, 2022 in Vernon and on May 28, 2022 in Vancouver. At the sentence hearing on January 25 and February 2, 2023, I was presented with a joint submission: concurrent sentences of 120 days incarceration, a $1,000 fine on each offence, and a driving prohibition of three years under the Criminal Code . [ 2 ] The issues for me to determine are whether that joint submission would be contrary to the public interest, and if so, what the sentences should be.

Test for Considering a Joint Submission [ 3 ] In R. v. Anthony - Cook [i] , the Supreme Court of Canada stated that I should not reject a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest. There are two aspects to the test, and the ways in which it may be satisfied are as variable as the facts of each case.

For example, it may be so “…markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system” [ii] . An informed and reasonable public should not lose confidence in the courts. Values of a Joint Submission [ 4 ] In Anthony - Cook , the Court explained why joint submissions are an integral and necessary part of a properly functioning justice system: without them the justice system would soon be so overburdened, it would likely fail.

They create relative certainty as to outcome, because the test for not accepting a joint submission has a high threshold. They obviate the need for a trial, and can save significant court resources that can be used where matters are contested. Victims and other witnesses are spared the need to testify and perhaps be re- traumatized. If there are real defences or risks that relate to the Crown’s case, or other benefits to the justice system overall, such as providing information about other crimes, an acceptance of guilt in exchange for a more lenient sentence makes sense: it furthers the overall public interest.

Each side gives something up, and gains certainty. However, certainty is not the goal of the sentencing process: imposing a proportionate sentence, having regard to the offence and the offender, is. [ 5 ] Parliament created a framework for sentencing an offender that judges must follow, found in ss. 718 to 718.2 of the Criminal Code .

Section 718 describes the fundamental purpose and objectives of a sentence: 718. The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 6 ] Denunciation reflects society’s condemnation of the crime. It is not revenge or vengeance. The hope that the sentence will discourage the offender and others from committing the offence is reflected in the principle of deterrence. Rehabilitation will be an important objective where the offender is genuinely prepared to rectify the factors leading to their offending. The principle of totality applies when an offender is sentenced for more than one offence at the same time.

I must ensure that the total sentence is not excessive, having regard to Mr. Dafoe’s culpability. Ultimately, the sentences must be proportionate, just, and not discourage rehabilitation. [iii] Process for Considering a Joint Submission [ 7 ] Most joint submissions do not require examination. That is one of their benefits. But if a joint submission causes a judge concern, as this joint submission has, the process is important. Anthony-Cook sets out guidance for judges to follow to ensure that the review undertaken is fair.

I must examine all the factors that relate to the joint submission. [ 8 ] I must take the joint submission as is, without alteration. As with any sentence hearing, I must know the circumstances of the offences and Mr. Dafoe. I note that the greater the benefits and concessions, the more likely it is that I should accept the joint submission, even if it seems far too lenient.

But “… if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.” [iv] [ 9 ] The justification of the joint submission in open court is itself a factor favouring acceptance of the submission, because the public will then know what led to it, hopefully enhancing the public’s confidence in the administration of justice. Since I had concerns about the proposed sentence, I asked for further submissions, and adjourned to give counsel time to prepare to do so.

I inquired into the factors that led to the joint submission, hearing from both defence counsel and the Crown.

[ 10 ] The process also permits me to allow Mr. Dafoe to withdraw his guilty pleas, if, after conducting my review, I still have concerns about the proposed sentence, and the circumstances justify it. If I find the joint submission meets the test for rejection and I do not allow the guilty pleas to be withdrawn, I must give cogent reasons for not following the joint submission. THE OFFENCES [ 11 ] The first offence in time, Information 56426-1, was the offence committed near Vernon on April 24, 2022. Police were conducting speeding enforcement. Mr.

Dafoe’s vehicle was stopped at about 11:40 am because it was travelling 121 km/h where the speed limit was 90 km/h. He was cooperative and acknowledged he was a prohibited driver. He was given an appearance notice. [ 12 ] The second offence, Information 34297-1, was committed in Vancouver. Police ran the license plate of the vehicle he was driving at about 9:00 pm on May 28, 2022. He was associated to the vehicle and police stopped it to see if Mr. Dafoe was the driver, because their records showed he was prohibited from driving. He was the driver.

Police obviously suspected he had consumed alcohol as he had to provide a sample of his breath at the roadside. Again he was cooperative, and the result of his breath sample was a “warn”. I was not told of the consequences, but our provincial laws dictate that he received an immediate roadside prohibition. He was released on an Undertaking by police. THE OFFENDER [ 13 ] Mr. Dafoe is 54 years old. He has 3 children who are now adults. He owns a condominium in Vernon and has prepaid all his expenses for the next few months. In April he has court proceedings relating to a civil matter.

I was not given any more details. He was very recently diagnosed with cancer, with polyps being found in the lower half of his body and in his lungs. Chemotherapy has apparently been recommended. He is not yet undergoing treatment and his options are being investigated. Notwithstanding that diagnosis, he was prepared to be incarcerated.

I infer that he is satisfied that he will receive adequate care within the provincial correctional system, in accordance with its obligation to care for inmates. [ 14 ] He recently obtained work with Interior Health and has apparently passed his probationary period such that his union position will permit him to go to jail but retain his employment. [ 15 ] I was told he struggles with depression and anxiety, but was not given any further details, or how that may relate to his offending, if at all.

I have concluded his mental health was not a factor in these offences. [ 16 ] The cause of my concern with the joint submission is Mr. Dafoe’s criminal history, especially that related to driving. He has a total of 60 previous convictions, between 1988 and 2021. He has 7 convictions for failing to abide by court orders, and 36 convictions relating to dishonesty. He has four convictions for driving after having consumed too much alcohol. [ 17 ] He was convicted of operation of a motor vehicle while impaired or with excessive blood alcohol in 1988, 1995 and 2002.

In 2004 he was convicted of driving while impaired and causing bodily harm, for which he received a 12 month sentence in addition to serving 3 months of pre-trial custody, and a 5 year driving prohibition. [ 18 ] He has been convicted nine times for driving while disqualified: - In 1996, for which he was given a $400 fine; - In 2004, at the same time as his conviction for impaired operation of a motor vehicle causing bodily harm, he was sentenced for three separate offences of driving while disqualified.

For each, he received a sentence of three months incarceration and an additional three- year driving prohibition, all consecutive to each other and the other sentences imposed at the same time. The driving prohibitions would have started after his release from custody, likely March of 2006. At the time the legislation was not clear that driving prohibitions could be consecutive, although there is some authority that could be done [v] .

In the result, his driving prohibition was for a minimum of 5 years and a maximum of 14 years; - In 2008, for which he was given a 90 day jail sentence in addition to 48 days he had spent in custody. The offence was indictable, and a driving prohibition discretionary; - In 2009, for which he was sentenced to 6 months incarceration and was prohibited from driving for 5 years. The offence was indictable. The driving prohibition period started in January 2010; - On July 21, 2014, for which he was sentenced to a 5 month jail sentence and a 10 year driving prohibition.

The Crown had proceeded indictably; - On July 31, 2014, for which he received a 6 month jail sentence and another 10 year driving prohibition. That sentence was consecutive to other sentences that he was serving (24 months on 6 fraud related charges, for which he was sentenced on July 30, 2014, and the 5 month sentence for driving while prohibited). Legislation specifically permitted the prohibition period to be consecutive. Accordingly, he had a 20 year driving prohibition. That prohibition would have started after his release from incarceration.

His total sentence meant he received a penitentiary sentence of at least 30 months. Assuming he was released after having served two-thirds of his sentence, the prohibitions would have started in the spring of 2016. The Crown had proceeded indictably; - On June 2, 2021 for an offence committed on December 1, 2020, for which he received a 60 day jail sentence and a 3 year driving prohibition. The Crown proceeded summarily. [ 19 ] Some nine months after he was released from jail after his last conviction, he again drove while disqualified under two prohibitions.

He did so again about one month later, also under two prohibitions. His current driving prohibitions will run until 2024 and 2034. These will be Mr. Dafoe’s tenth and eleventh convictions for driving while disqualified.

[ 20 ] Surprisingly, for reasons that were not explained and despite the history of the Crown having proceeded indictably since 2008, the Crown elected to proceed summarily on the Informations before me and for his last conviction. The effect on my task is the limit of the maximum sentences that can be imposed, a factor to consider in the sentence calculus. The maximum sentence that could be imposed for each offence is two years less a day incarceration and a fine of $5,000. I may also impose a driving prohibition of up to three years.

IS THE JOINT SUBMISSION TENABLE? [ 21 ] With all those facts in mind, will 120 days jail, a $2,000 fine and 3-year driving prohibition satisfy the administration of justice and be consistent with the public interest? Or is it so unhinged from the circumstances that its acceptance would lead reasonable and informed persons, aware of all the circumstances, to believe that the proper functioning of the justice system had broken down? Analysis Comparative Cases [ 22 ] I was not provided with any comparative cases. In R. v.

Hindmarch [vi] , the accused pled guilty to one offence of driving while prohibited under the Criminal Code . When stopped Mr. Hindmarch gave a false name. He had taken another person’s car with permission, but did not return it as expected. The owner reported it stolen. When he was arrested for that offence, Mr. Hindmarch gave his correct name. He was 30 years old and had 56 previous convictions. He had five prior driving prohibitions, and three prior convictions for driving while prohibited. He was an addict but had rehabilitated himself to some extent by the time of sentence.

The longest sentence he had served was 18 months. He was given a sentence of 21 months and a 10-year driving prohibition. [ 23 ] In R. v Briet [vii] , after a trial the offender was found guilty of five offences, one of which was driving while disqualified, another dangerous driving and a third for failing to stop as required. He was 42 years old and had a difficult upbringing. He had previously been convicted of dangerous driving six times, including when he was 18. His driving led to an accident in which his best friend was killed. He received a federal sentence.

He had 17 prior convictions for driving while prohibited and was on probation at the time of these offences, and was subject to a lifetime driving prohibition. There was evidence of some rehabilitation. He was diagnosed with ADHD, functioned intellectually in the low average range and possibly suffered from fetal alcohol effects. He was compliant with strict bail terms for almost a year before his sentence. Denunciation and deterrence were the main sentencing factors: [48] He was well aware he was breaching his lifetime prohibition and the terms of his probation.

I place emphasis on general deterrence and protection of the public as an overriding consideration, given Mr. Briet’s past driving history. Driving while prohibited involves a conscious decision to disobey court orders and disrespect the administration of justice. The driving while prohibited event commenced with premeditation, waiting for Ms. Power to go home from her shop and waiting for nightfall so that the vehicle could be driven without detection.

The vehicle was driven for approximately 20 kilometres through backroads. [Emphasis added] [ 24 ] He was sentenced to two years for driving while prohibited, consecutive to the other sentences imposed. [ 25 ] In R. v. Cooper [viii] , the offender pled guilty to driving while prohibited and flight from police, events that occurred in October 2018. Mr. Cooper was 31 years old and had a very difficult upbringing, which in

part led to his being addicted to drugs at the age of 12. He had one prior conviction for dangerous driving, two convictions for flight from police and four convictions for driving while prohibited: one in 2012, at the same time as dangerous driving, two in 2016 and one in 2017. [ 26 ] He was sentenced to nine months jail for each offence before time served was credited, to be served consecutively, and given a five-year driving prohibition to run concurrently. He appealed his sentence, arguing that denunciation and deterrence were give too much weight, and the sentence was unduly harsh.

The Court of Appeal only varied the driving prohibitions to two years and three years to run consecutively. The Crown had not proceeded with notice to seek greater punishment, so the driving prohibitions imposed were not lawful. [ 27 ] The Court of Appeal stated that protection of the public, as well as denunciation and deterrence, were properly emphasized, and at para. 17 referred to an appellate decision from the Yukon: As Mr. Justice Donald observed in R. v. Taylor , 2008 YKCA 1 at para. 10 : “driving prohibitions must be obeyed and breaches sanctioned in a meaningful way”.

In that case, an eight-month jail sentence for driving while prohibited was upheld for an offender with a similarly concerning driving record. In Evans , this Court upheld an effective sentence of 15½ months’ jail for flight from police for an individual with two prior convictions for that offence (at para. 17). [ 28 ] In R . v. McAlpine [ix] , the indigenous offender pled guilty to 12 counts on seven Informations. All but one offence occurred in a three-week period in 2019, and the one offence about two months before. Four offences were for driving while prohibited. He had one prior conviction for that offence.

He was 33 years old and had struggled with a substance use disorder since he was a youth, had grown up in foster care, and had various mental health diagnoses. He had been in custody pending resolution of his matters and had done very well in programs. [ 29 ] The principles of deterrence, denunciation and protection of the public were emphasized. For the first two offences of driving while prohibited, he received two consecutive three-month jail sentences. For the remaining two, he received two consecutive six-month jail sentences, for a total of 18 months.

What are the Most Important Sentencing Principles? [ 30 ] I can only conclude they are denunciation and deterrence. It is clear to me that Mr. Dafoe does not care about laws that relate to driving or court orders. Rehabilitation is not a factor, since no factor relating to rehabilitation was put forward to explain his driving while disqualified. The only explanation I received was that he drove in Vancouver because his niece was a victim and had been injured.

On January 25, 2023, when I first heard submissions and expressed my concerns about the joint submission, Mr. Dafoe appeared to wonder why I had any concerns. His comments showed that from his perspective, he had to drive and see her. If that were so, I have no doubt it would have been put forward as a factor leading to the joint submission. It was not. Neither was it was necessary. If it was, he would have a defence. No defence was suggested by his experienced and able lawyer. [ 31 ] The rehabilitation required in this case is simply to have him respect laws and court orders. That is entirely internal to Mr.

Dafoe. His reaction does nothing to explain why he felt entitled to drink and drive in Vancouver. His comments simply reinforce my view: he believes he gets to drive when he wants, and he is willing to go to jail if he is caught. [ 32 ] Driving is a privilege. It is not a right. He has lost that right many times. These offences show he still does not care. The only means for rehabilitation is deterrence. The sentence must be significant enough that he knows if he drives again while prohibited, even once, he will spend far longer in jail, perhaps returning to the penitentiary.

General deterrence is also important. [ 33 ] That is also the only way he will hopefully become responsible. It is obvious to me that he has consistently chosen to be irresponsible. He had no right to drive. He did and drank alcohol. He did and drove well over the speed limit. His criminal record overwhelmingly shows he does not care to conform to Canadian societal norms. [ 34 ] He recognized that separation from society is necessary to provide some measure of safety and to give effect to deterrence. A 60- day jail sentence less than a year before provided no such deterrence. He decided to drive twice.

Will twice that sentence and a fine deter him in future? Historically he has spent far longer in jail. Those sentences had no lasting impact. [ 35 ] Sentencing principles mandate that for each offence, a judge must impose a meaningful sentence, and “the test for the imposition of a consecutive or concurrent sentence is “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”” [x] . The offences are distinct in time and place. The only nexus is Mr. Dafoe driving and committing infractions of this province’s Motor Vehicle Act .

The sentences should be consecutive. [ 36 ] Twice the length of incarceration for the last sentence and a fine may be a step up for one offence, but not relative to his convictions before then in 2014. The only basis put forward for not imposing a consecutive sentence for the second offence is totality.

That principle requires that where more than one sentence is imposed at the same hearing, and it is appropriate that the sentences be consecutive, the judge must ensure that the total sentence does not exceed the offenders overall culpability [xi] . [ 37 ] The Vernon offence is not a previous conviction for the purposes of determining a fit sentence for the Vancouver offence, but the fact that he was caught once, admitted he had no license and was prohibited are facts I can consider. He would have known he would be facing a jail sentence if he chose to drive again.

That knowledge provided no deterrence. [ 38 ] As noted, the maximum sentence for each offence is two years less a day, and a fine of $5,000, because the Crown proceeded summarily. He could face a penitentiary sentence if the two sentences were consecutive, provided that he received a jail sentence of at least one year for each offence. The maximum permissible sentence is not limited to the worst offence and the worst offender [xii] . In my view, given Mr.

Dafoe’s continuing disregard of driving laws in Canada, a penitentiary sentence is not outside of a fit range. [ 39 ] There was no remorse or acknowledgment of the harm he causes to others and the risks he takes. He is not insured. He not only drives, but he speeds and drinks and drives, increasing the risks of an accident. Six-month sentences had no real impact, imposed when there was still some prospect of rehabilitation through deterrence and denunciation.

I recognize that the penitentiary sentence seems to have effected some change to his behaviour, as he did not re-offend for about four and a half years. [ 40 ] I conclude that before he drove, Mr. Dafoe knew he would go to jail for longer than 60 days if he was convicted. And before he drove again, he knew he would go to jail even longer. Jail sentences of 120 days have not and will not deter him. Since he has significant assets and employment, and he has been able to save enough to pay his bills into the future, the fines will also provide no deterrence. At best they would be an inconvenience.

They do little if anything to further the denunciation and do not address the need for protection of the public. Conclusion on Joint Submission [ 41 ] To summarize, Mr. Dafoe has a lengthy criminal record for driving offences, especially driving while prohibited. There are no victims who are spared a trial. The witnesses are police officers, and part of their job is to testify. In Vernon, he was speeding, giving police ample grounds to pull him over. In Vancouver, he was driving a vehicle to which he was associated, also giving police grounds to pull him over to see if the driver was properly licensed.

There are no defences based on the facts, and none were put forward. The only quid pro quo is the certainty of sentence in exchange for not having two relatively brief trials with police officers as witnesses. The Vancouver charge was waived before there were any negotiations. In other words, he intended to plead guilty before receiving any promises from the Crown. There was virtually no benefit to the justice system by his agreement to plead guilty to both offences. [ 42 ] The sentences proposed are incredibly lenient in all the circumstances.

A concurrent sentence would not give any proportionate, meaningful sentence for the Vancouver offence, as it would amount to a $1,000 fine, far less than the sentence he received most recently. [ 43 ] There is no basis for concluding that his rehabilitation, if any, will be impacted by a jail sentence longer than that proposed. There are significant reasons to believe that a far harsher sentence is required in all the circumstances. Totality does not require that the sentence for the Vancouver offence be reduced. Denunciation and deterrence require more significant sentences.

The proposed sentences would bring the administration of justice into disrepute in the eyes of a reasonable person. SHOULD THE GUILTY PLEAS BE STRUCK? [ 44 ] Apart from Mr. Dafoe’s lawyer having gone through the requirements of s. 606(1.1) of the Criminal Code , I too went through them. Mr. Dafoe acknowledged he knew that I was not bound by the joint submission. Further, he had waived one Information from Vancouver to Vernon, which requires an intention to plead guilty, before commencing negotiations with the Crown about the sentences.

Accordingly, he knew very early on he would be pleading guilty to at least one offence, and given his experience with sentences, heknew it is up to a judge to impose a fit sentence for each offence, and in total. In short, there is no basis for permitting him to withdrawhis guilty pleas. WHAT IS A FIT SENTENCE FOR EACH OFFENCE, AND IN TOTAL? [45] Bearing in mind the principles and factors I have considered, and to drive home the message to Mr. Dafoe that he cannot drivewhile he is prohibited and without a valid license, a significant sentence is required.

Such a sentence is consistent with all the sentencingprinciples and would be consistent with sentences imposed in comparable cases. The only evidence of real deterrence has come with apenitentiary sentence. [46] He was given a lower sentence in 2021, undoubtedly in recognition of the fact that he had not disobeyed the law for a number ofyears. He has lost any credit that might be given for that gap in offending.

It would not offend any sentence principle to increase hissentence from the last one he received in 2014, bearing in mind that the totality principle would have applied. [47] I am mindful that apart from the lack of utility of a fine, he will be in jail longer than he planned, and may well need the moneyhe would have used to pay a fine for his expenses. I also consider that Mr. Dafoe would likely have been fined for speeding in Vernon,and will assume that as a relevant fact. [48] The circumstances of the Vancouver offence are aggravated.

He had been caught driving just over a month before, where heacknowledged he knew he was not permitted to do so. Being caught would serve as a reminder of the consequences. He decided toconsume alcohol and drive anyway. The only mitigating factors are his guilty pleas, which he intended to do early on. But that wassimply an acknowledgment of the inevitable. It deserves minimal credit. [49] On Information 56246-1 the sentence is eight months jail, and a driving prohibition pursuant to s. 320.24(4) and (5), for threeyears starting after the completion of his incarceration.

I have considered a conditional sentence, but in my view it would not beappropriate for this offence. [50] On Information 34297-1, I take into consideration the fact that Mr. Dafoe had planned on only being in jail for about two and ahalf months, two thirds of his anticipated sentence. Although I was not told that he would lose his employment or his condominium, hewill be in custody considerably longer than he planned. The risk he might lose his employment or condominium are collateralconsequences I must consider.

I also take into account his cancer diagnosis and what would be expected to be a significant period ofrecovery, which will make more time in a custodial facility much harder. [51] The sentence I would impose requires me to consider a conditional sentence. The only question is whether it can meet therequirement for denunciation and deterrence. Despite the offence being more aggravated, the additional factors I have outlined favour aconditional sentence.

I am satisfied that with sufficient punitive aspects, a conditional sentence will meet the sentencing objectives, withthe time in custody on the Vernon offence providing a reminder to Mr. Dafoe of the consequences of failing to obey the conditionalsentence. [52] On Information 34297-1, the sentence is 12 months consecutive to Information 56246-1 and any other sentence he may serve. Itwill be served by way of a conditional sentence with house arrest and other terms.

There will be a driving prohibition pursuant to s.320.24(4) and (5), for three years starting after the completion of his incarceration. [53] There will also be a victim fine surcharge payable in respect of each offence. ___________________ The Honourable J. Guild Provincial Court Judge [i]2016 SCC 43 [ii]R. v. Druken, 2006 NLCA 67, at para. 29 [iii]R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 [iv]Anthony-Cook at para. 53 [v]R. v. Conn, 2004 MBCA 22; 2004 MBCA 158; R. v. Webber, 2004 ABQB 814 [vi]2010 BCSC 1257 [vii]2018 BCSC 1576 [viii]2019 BCCA 325

[ix] 2020 BCPC 183 [x] R. v. Li , 2009 BCCA 85 [xi] R. v. M(CA), supra [xii] R. v. Solowan , 2008 SCC 62