R. v. Munroe, 2023 BCPC 121

Citation: R. v. Munroe 2023 BCPC 121 Date: 20230526 File No: 75972 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. TIMOTHY DONALD MUNROE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: B. Martin Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Dates of Hearing: February 15, May 26, 2023 Date of Judgment: May 26, 2023

INTRODUCTION [ 1 ] Timothy Donald Munroe is before the court for sentencing after entering a guilty plea to Count 1 on Information 75972- 1, charging him with operating a conveyance, a motor vehicle, while prohibited from doing so by reason of an order made under the Criminal Code , contrary to

Section 320.18(1) (

a) of the Criminal Code . The offence occurred on June 23, 2021, in Prince George, BC. Timothy Munroe has a host of convictions under the Motor Vehicle Act and the Criminal Code for driving offences over the years. Timothy Munroe says he has never had a driver’s licence but drove anyway as required by his duties as a mechanic. The Crown is seeking a 90-day jail sentence for his conviction for this offence , but does not oppose an intermittent sentence. The defence seeks a conditional sentence order.

ISSUE [ 2 ] The issue for the court is to determine a fit and proper sentence taking into account the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, Timothy Donald Munroe (“Timothy Munroe”). CIRCUMSTANCES OF THE OFFENCE [ 3 ] Timothy Munroe does not have now, nor has he ever had, a driver’s licence; nevertheless, he has amassed a staggering number of driving offences over the years. The most recent offence occurred on June 23, 2021, in Prince George, BC.

On this date, the RCMP followed a vehicle with unattached licence plates to the Petro Canada gas station on Highway 16 east of Prince George. The vehicle stopped at the gas station and the male driver went inside the station. The RCMP reviewed Petro Canada’s video surveillance of the exterior the building, which showed Timothy Munroe getting out of the driver’s seat of the vehicle.

When he returned to the vehicle, Timothy Munroe got into the passenger seat and the female passenger, M.D., got into the driver’s seat and began driving. [ 4 ] The Superintendent of Motor Vehicles confirmed that Timothy Munroe was a prohibited driver on June 23, 2021. He was subject to: (

a) a 10-year driving prohibition imposed on April 18, 2012, on Court File 35598-2-C; (

b) a 10-year driving prohibition imposed on August 13, 2014, on Court Files 39810-1 and 40013-2-C; (

c) an eight-year driving prohibition imposed on September 12, 2016, on Court File 44878-3-C; (

d) a three-year driving prohibition imposed on May 21, 2019, on Court File 72242-1; (

e) a 10-year driving prohibition imposed on September 25, 2020, on Court File 74500-1. He was also under an indefinite suspension under the Motor Vehicle Act . CIRCUMSTANCES OF THE OFFENDER [ 5 ] The court has the benefit of a Pre-sentence Report (“PSR”) authored by Probation Officer (“P.O.”) K. Poirier dated October 24, 2022. In preparation of the PSR, PO Poirier interviewed Timothy Munroe and his mother L.M. [ 6 ] Timothy Munroe was born on August 12, 1969, and is now 53 years old. He was born in Digby, Nova Scotia, and moved to Prince George as a child.

He is one of five children, four of whom are still living. Timothy Munroe’s father A.M. and his brother C.M. are both deceased. Timothy Munroe has a daughter, M.M. , who is 18. Timothy Munroe says he is close to his daughter. Timothy Munroe’s former wife, T.3, is now deceased. [ 7 ] Timothy Munroe attended Kelly Road Secondary School (now Shas Ti Kelly Road Secondary) to Grade 10. He is a self-taught mechanic; he holds no formalized tickets or program completions.

He has “limited work experience,” which includes “mechanics and the fire crew” for Prince George Regional Correctional Centre. [ 8 ] Timothy Munroe receives income assistance for “persons with disabilities” although he admits to no physical or mental disability or addiction. He told PO Poirier that he was exposed to alcohol around seven years of age, but has not consumed alcohol for 20 years. He also told her he consumes fentanyl daily but does not believe it is a problem for him as he is using “less and less each day.” [ 9 ] Timothy Munroe has lived with his mother L.M. since September 21, 2022.

L.M. is now 87 years old and in frail health. Timothy Munroe assists his mother on a daily basis. He helps her with day-to-day household tasks, such as helping move items around the house and letting the dog outdoors. L.M. has significant mobility issues and Timothy Munroe assists her in getting to and from medical appointments. Defence counsel advised the court that L.M. did not attend Timothy Munroe’s sentencing hearing on February 15, 2023, as coming to the courthouse is too difficult for her. Criminal Record [ 10 ] Timothy Munroe has an extensive criminal record and driving record.

According to Community Corrections Officer PO Poirier, Timothy Munroe has approximately 82 criminal convictions dating back to 1981. Most of his criminal history consists of different types of driving offences. I have reviewed the Justin Conviction List, which records Timothy Munroe’s Criminal Code Convictions since January 20, 2004. I have also reviewed his British Columbia driving record, which records his motor vehicle offences since February 18, 1988. What I glean from this review is that Timothy Munroe’s Criminal Code convictions include the following offences on the indicated disposition dates: a.

Operating a motor vehicle while disqualified contrary to Section 259(4) or 320.18(1) of the Criminal Code (20 convictions): March 9, 1992 (x 4); September 13, 2000; June 29, 1993; January 7, 2000 (x 2); January 28, 2004 (x 2); August 16, 2005; September 13, 2006; September 28, 2009; April 18, 2012 (x 3); August 13, 2014 (x 2); September 12, 2016; August 10, 2018; b. Impaired driving contrary to s. 253 of the Criminal Code (seven convictions): March 6, 1990; December 5, 1990; March 9, 1992 (x

4); June 29, 1993; c. Operation of a conveyance while prohibited contrary to

Section 320.18 (1)(

a) of the Criminal Code (two convictions): May 21,2019; and September 25, 2020; d. Dangerous operation of a vehicle contrary to Section 249(1)(

a) of the Criminal Code (three convictions): August 8, 2000;September 13, 2006;

Section 320.13: September 25, 2020; e. Flight from the police contrary to Section 320(17) of the Criminal Code (two convictions): May 21, 2019; September 25, 2020; f. Occupying a vehicle in which there is a firearm contrary to Section 94(1) of the Criminal Code (one conviction): January 28,2004; g. Possession of stolen property over $5,000 contrary to

Section 355(

a) of the Criminal Code (two convictions): February 25, 2004;September 28, 2009; h. Possession of stolen property under $5,000 contrary to

Section 355(

b) of the Criminal Code (three convictions): April 18, 2012;August 10, 2018; September 25, 2022; i. Theft under $5,000 contrary to

Section 334(

b) of the Criminal Code (two convictions): September 25, 2020 (x 2); j. Failure to appear pursuant to an appearance notice contrary to Section 145(5) of the Criminal Code (one conviction): August16, 2005; k. Possession of a controlled substance contrary to

Section 4.1 of the Controlled Drugs and Substances Act (one conviction): August23, 2005; l. Possession for the purpose of trafficking contrary to

Section 5.2 of the Controlled Drugs and Substances Act (two convictions):August 13, 2014, (x 2); m. Extortion contrary to

Section 346.1.1(

b) of the Criminal Code (one conviction): September 28, 2009; and n. Mischief contrary to Section 430(1)(

c) of the Criminal Code (one conviction): June 21, 2018. [11] Timothy Munroe has 72 violations under the Motor Vehicle Act, RSBC 1996, c 318, including convictions for: (

a) drivingwithout a licence; (

b) driving without insurance; (

c) driving while prohibited or while his licence was suspended; (

d) failing to stop forthe police; (

e) speeding or excessive speeding; (

f) failing to stop at a red light or stop sign; (

g) driving without due care and attention; and(

h) failing to wear a seat belt. Timothy Munroe has over 25 driving prohibitions under the Motor Vehicle Act, including two indefinitesuspensions. [12] The defence submits that it is Timothy Munroe’s background as a mechanic that has often put him in situations of driving. VICTIM IMPACT [13] The victim in this case is Canadian society and its values. In R. v. Pawson, 2020 BCCA 94 , Justice Frankel notes (atpara. 22) that “driving is a privilege not a right.” As Justice Cory explains in R. v.

Wise, (SCC), driving on public roadsis a highly regulated activity: For the safety and well-being of society, motor vehicles and their drivers are subject to a great many statutory requirements, conditionsand regulations. Almost every aspect of the use of a motor vehicle is controlled.

The side of the road on which a car may be driven; thespeed at which it may proceed; when it may overtake and where it may overtake another vehicle; where and when it must stop; themechanical condition of the vehicle; the installation of certain accessories, be they required or prohibited; the places where a vehicle maypark: all these and many more are circumscribed by various Acts and regulations.

For the safety of all, it is essential that drivers be tested before receiving their licence; that RIDE programs be instituted to discourage thedrinking driver; that the speed of vehicles be supervised and that the mechanical fitness of vehicles be inspected. These inspections andtests and this supervision do not constitute unreasonable breaches of basic civil liberties. Rather, they are common sense rules that existfor the protection of society as a whole. Reasonable surveillance and supervision of vehicles and their drivers are essential.

Withoutthem, motor vehicles inevitably become instruments of crippling injury, death and destruction. PRINCIPLES AND PURPOSE OF SENTENCING [14]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute to, along with crime-prevention 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. [15]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the moral blameworthiness 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. v.Lacasse, 2015 SCC 64 , at para. 130. The goal in sentencing is a fair, fit and principled sanction and proportionality is theorganizing principle in reaching this goal: Parranto, 2021 SCC 46, para. 10. It is grounded in elemental notions of justice and fairnessand indispensable to the public’s confidence in the justice system: R. v. Safarzadeh-Markhali, 2016 SCC 14, at paras. 70–71; Lacasse,paras. 3–6.

[16] Other important but secondary sentencing considerations are set out in s. 718.2 of the Criminal Code, which provides: Other sentencing principles 718. 2 . . . (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [ands. 718.2(

b) of the Criminal Code (the “parity principle”). The parity principle means that any disparity between sanctions for differentoffenders needs to be justified: Ipeelee, at para. 79]; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; [s. 718.2(d)and 718.2(

e) of the Criminal Code (the “restraint principle”). The sentencing judge should treat imprisonment as a sanction of last resortand limit any custodial period imposed to the lightest term reasonable in the circumstances: R. v. Bosco, 2016 BCCA 55 ,para. 35]. DETERMINING A PROPORTIONATE SENTENCE [17] In Parranto, the Supreme Court of Canada stated [citations omitted]: [113] In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” . . . Sentencing judges mustdecide a profoundly contextual issue: “. . .

For this offence, committed by this offender, harming this victim, in this community, what isthe appropriate sanction under the Criminal Code?” . . . They must determine which objectives of sentencing merit greater weight andevaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case . . . [Emphasis in original.] [18] In R. v. Sharma, 2022 SCC 39 , the Supreme Court of Canada stated (at paras. 4 and 105) that a maximum sentence foran offence is a reflection of, and a proxy for, its seriousness.

Positions of the Parties [19] The Crown and Defence have not presented the Court with a joint submission. The Court is not restricted in its approach tosentencing as set out in R. v. Anthony-Cook, 2016 SCC 43. [20] Given Timothy Munroe’s criminal record and motor-vehicle abstract, the Crown seeks a 90-day jail sentence behind bars. TheCrown takes no position on whether the sentence is served intermittently. The defence accepts a jail sentence is appropriate, but oneserved in the community under a conditional sentence order.

The defence submits that a conditional sentence in the range of 120 days to180 days is an appropriate sentence. If the court accedes to the Crown’s position for a custodial sentence, the defence asks that the jailsentence be served intermittently. RANGE OF SENTENCING [21]

Section 320.1(5) sets out the punishment for driving while prohibited where the Crown has proceeded by

summary conviction.On June 23, 2021, the date of the offence, s. 787(1) of the Criminal Code stated: General penalty 787

(1) Unless otherwise provided by law, every person who is convicted of an offence punishable on

summary conviction is liable to afine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both. [22]

Section 320.24(5) also permits the court to impose a discretionary driving prohibition with the following maximum periods, asset out in s. 320.24(5): Prohibition period (5) . . . (

a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plusthe entire period to which the offender is sentenced to imprisonment; (

b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years,plus the entire period to which the offender is sentenced to imprisonment; and (

c) in any other case, not more than three years, plus the entire period to which the offender was sentenced to imprisonment. AGGRAVATING AND MITIGATING FACTORS AND COLLATERAL CONSEQUENCES [23] As the sentencing judge, I must consider the gravity of the offences for which Timothy Munroe is being sentenced, his degree ofresponsibility in their commission, having regard to his unique individual circumstances. This individualization in sentencing requiresme to consider all aggravating and mitigating circumstances and the collateral consequences. An aggravating factor, either statutorily or

judicially mandated, will induce a court to impose a longer sentence than otherwise may be imposed. A mitigating factor will reduce thesentence that might otherwise be imposed. The absence of an aggravating factor does not equate to a mitigating factor or vice versa. TheCrown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burden of provingdisputed mitigating factors on a balance of probabilities: R. v. Dreger, 2014 BCCA 54, para. 45.

MITIGATING FACTORS [24] Timothy Munroe’s guilty plea is mitigating, although it came late in the proceedings (on May 26, 2022, the first trial date).Timothy Munroe’s crime is not an isolated incident. He has a lengthy history of similar criminal conduct. Timothy Munroe explains hisfemale companion, M.D., asked him to drive “for a period of time” as she was not feeling well. He agreed to do so. He admits this was a“bad decision,” but points out there is no evidence of any egregious driving. I do not find this to be a compelling mitigating circumstance.

Compliance with bail conditions [25] On September 21, 2022, Judge Mrozinski released Timothy Munroe on a Judicial Release with respect to this matter (Court File75972-1) as well as Court File 77420-1. Court File 77420-1 charges Timothy Munroe with two offences alleged to have occurred onSeptember 8, 2022, at or near Prince George BC: (

a) Count 1: possession of stolen property over $5,000, contrary to s. 355(

a) of theCriminal Code, (

b) Count 2: driving while disqualified contrary to s. 320.18(1)(

a) of the Criminal Code. [26] The release order was in the amount of $200 without deposit and Timothy Munroe’s mother, L.M., acting as surety. The releaseconditions were onerous, including a condition of house arrest with the exception that Timothy Munroe could be outside his residencefrom 1:00 p.m. to 3:00 p.m. every Tuesday and Thursday.

Defence submits that these conditions were put into place to facilitate TimothyMunroe’s aim of providing his mother with the consistent and daily assistance she requires. [27] Timothy Munroe lived with his mother since the imposition of Judge Mrozinski’s September 21, 2022, Release Order. OnFebruary 15, 2022, defence submitted that despite his record, Timothy Munroe has been dedicated to providing his mother with the day-to-day assistance she requires. He has complied without difficulty and without any complaints of breach of his bail conditions, strict asthey were.

Defence submits: This shows something significant.

It shows Timothy Munroe is dedicated to making sure he is there and able to care for his mother on adaily basis and also, that he is capable of following strict conditions, and has demonstrated that through his compliance with the bailorder that is in place. [28] Timothy Munroe’s greatest fear is that he will be in PGRCC serving a custodial sentence and will get a phone call advising himhis mother has passed away or has fallen, or in need of assistance that he was unable to provide. [29] At the continuation of the sentencing hearing on May 26, 2023, Timothy Munroe was in custody on Information 77420-2-A,since May 16, 2023, charging him with three counts of breaching Judge Mrozinski’s September 21, 2022, Release Order, by failing toabide by his curfew conditions on March 24, 2023, April 1, 2023, and April 18, 2023. [30] Timothy Munroe has not been convicted of any offences under court file 77420-1 or 77420-2-A.

Accordingly, I have notconsidered these new charges in determining a proportional sentence in this case. I can say, however, although it was true onFebruary 15, 2023, there were no allegations of Timothy Munroe having failed to comply with his bail conditions, this was no longertrue as of the continuation of this sentencing hearing, May 26, 2023. [31] I pause to note that on R. v. G.T.A., 2021 BCCA 425 , Justice Marchand commented that compliance with bailconditions is not typically mitigating: [60] Further, “people who are on bail are expected to behave themselves”: R. v. R.M.D., 2014 BCCA 56, at para.7.

Compliancewith bail conditions is typically neutral although, as a matter of discretion, in some cases compliance with strict bail condition may beconsidered mitigating: R. v. L.I., 2017 BCCA 444, at paras. 11–13. . . . AGGRAVATING FACTORS [32] Timothy Munroe’s criminal and driving records are significantly aggravating. [33]

Section 320.22 of the Criminal Code provides that: Aggravating circumstances for sentencing purposes 320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any otheraggravating circumstances, the following: (

a) the commission of the offence resulted in bodily harm to, or the death of, more than one person; (

b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road orhighway or in another public place; (

c) a person under the age of 16 years was a passenger in the conveyance operated by the offender; (

d) the offender was being remunerated for operating the conveyance; (

e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100mL of blood;

(

f) the offender was operating a large motor vehicle; and (

g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance. [34] The fact Timothy Munroe was not licenced to drive under the Motor Vehicle Act is a statutorily aggravating factor pursuant to s.320.22(g). He has been subject to driving prohibitions almost continuously since 1990. [35] In the circumstances of this case, the fact Timothy Munroe had no driver’s licence and was prohibited from operating a motorvehicle under the provincial Motor Vehicle Act is an aggravating factor.

Collateral consequences [36] Timothy Munroe submits a prison sentence behind bars would create a hardship to his elderly mother, with whom he lives. I notehis mother, L.M., was Timothy Munroe’s surety on both this and other matters. I understand Timothy Munroe has other siblings: Ed,Perry and Marilyn. Perry Munroe also resides with L.M., but is often away in camps working. [37] Timothy Munroe has lived with his mother since September 21, 2022, when Judge Mrozinski ordered as a term of his JudicialRelease that he reside with his mother and surety. Timothy Munroe has been in and out of jail most of his adult life.

If she is 87 now,L.M. was already elderly at the time of Timothy Munroe’s offences in 2016, 2017, 2018, 2019, and 2020. His mother’s frailty anddependence upon him did not serve to deter his criminal behaviour during those years and I doubt it will now. In any event, TimothyMunroe has been in custody since May 16, 2023, on the breach charges. Case Authorities [38] Neither the Crown nor the defence provided the court with case authorities to support their respective positions, with theexception, defence counsel referenced R. v. Proulx, 2000 SCC 5 , in support of his submissions for a conditional sentence.

Inorder to apply the principle of parity, I have considered those case authorities I considered relevant. [39] R. v. Dafoe, 2023 BCPC 48 , is a recent decision of Judge J. Guild of the Vernon Provincial Court, wherein he declinedto impose a sentence jointly proposed by the Crown counsel and defence counsel. Mr. Dafoe was charged with two counts of drivingwhile prohibited. Counsel presented the court with a joint submission for concurrent sentences of 120 days’ jail, a $1,000 fine on eachoffence, and a driving prohibition of three years under the Criminal Code. [40] In addition to driving while prohibited, Mr.

Dafoe was also speeding (driving 121 km/h in a 90 km/h zone) on the first occasionand driving under the influence of alcohol (albeit not impaired or over .08) on the second. [41] Mr. Dafoe was 54 years old with a grown family, serious health problems (cancer), and a full-time unionized job. Judge Guildrejected counsel’s joint submission because of Mr. Dafoe’s criminal history. Mr. Dafoe had 60 previous convictions, which includinghistorical convictions for impaired driving, the last of which was in 2004. Mr. Dafoe had also been convicted nine times for drivingwhile disqualified between 1996 and 2021.

The convictions before Judge Guild were for offences that occurred in the spring of 2022, andconstituted Mr. Dafoe’s tenth and eleventh convictions for driving while disqualified. [42] In his analysis, Judge Guild referenced the cases of R. v. Hindmarch, 2010 BCSC 1257, R. v. Briet, 2018 BCSC 1576, R. v.Cooper, 2019 BCCA 325 , R. v. Taylor, 2008 YKCA 1, and R. v. McAlpine, 2020 BCPC 183. The driving in some of thesecases was more aggravating than Timothy Munroe’s. In Briet, for example, the offender engaged the police in a high-speed chase andhad to be subdued with a spike belt.

Cooper also involved a flight from the police. In McAlpine, the 33-year old Indigenous offender pledguilty to 12 counts on seven Informations, four of which were offences for driving while prohibited. The circumstances of Hindmarchand Taylor, however, are comparable. [43] In Hindmarch, the 30-year-old offender pleaded guilty and was convicted of driving while under a prohibition. Justice Fishersentenced Mr. Hindmarch to 21 months’ jail, less time served, plus a 10-year driving prohibition. Mr.

Hindmarch had a lengthy criminalrecord, consisting of 56 criminal convictions of which 15 were motor vehicle-related, including three convictions for driving whileprohibited, four convictions for dangerous driving, and three convictions for impaired driving or driving over .08. He had been subject tofive driving prohibitions. The Court of Appeal held the sentencing judge had properly emphasized the need for the protection of thepublic, as well as denunciation and deterrence. [44] R. v.

Taylor, 2008 YKCA 1, is a decision of the Yukon Court of Appeal upholding a sentence of eight months' imprisonment fordriving while disqualified. It was Mr. Taylor's second conviction for driving while disqualified. He was in the final year of a 10-yearprohibition ordered as a result of an earlier conviction for impaired driving causing death. The Court of Appeal noted that the facts ofthat case made specific deterrence and public safety important sentencing principles. Justice Donald observed at para. 10: “drivingprohibitions must be obeyed and breaches sanctioned in a meaningful way”.

Justice Donald goes on to state at para. 17: [17] In my opinion, the key point of reference in assessing fitness in this case is the one-year sentence this offender received when hebreached a driving prohibition in 1997. The sentence in issue here is four months less than that imposed for the first offence.

Normally,repeat offences attract a greater penalty, although I can appreciate why the judge did not find it necessary to go higher than eight months,given there were no aggravating factors surrounding the manner of driving and his record had been clear for almost ten years. [45] On April 23, 2023, I brought to the attention of the Crown counsel and defence counsel, Judge J. Guild’s decision on R. v. Dafoe,2023 BCPC 48 , handed down on February 17, 2023. I invited counsel to provide any submissions they may have with respectto this case by May 8, 2023.

I advised counsel of my view that Judge Guild’s decision suggests the sentence sought by the Crown in thiscase was disproportionately lenient given Timothy Munroe’s driving record under the Criminal Code and the BC Motor Vehicle Act. Ascounsel did not present the court with a joint submission, I wanted to alert them to the fact that I was considering a jail sentencesignificantly longer than the three-month jail sentence suggested by the Crown.

[ 46 ] Mr. B. Martin, on behalf of the Crown, says the case before me is distinguishable by the fact that Timothy Munroe pled guilty to only one count of driving while prohibited, whereas Mr. Dafoe was being sentenced for two counts. The Crown acknowledges that Timothy Munroe’s mere presence on the road as an uninsured driver creates a risk to the public; however, his driving at the time of the offence was not accompanied by other illegal or troublesome behaviour that would otherwise increase the danger to the public. Unlike Mr. Dafoe, Timothy Munroe had not been drinking or speeding.

Moreover, the Crown’s case against Timothy Munroe is “slightly more complicated” than the case against Dennis Dafoe. Mr. Martin states: [14] The case against Mr. Munroe would have been slightly more complicated. Police did not directly witness Mr. Munroe driving. They only saw him driving after reviewing surveillance footage from the gas station. Two civilian witnesses would have had to take time off work to testify at a trial: one who provided police access to the surveillance footage at the time, and one who created a copy of the footage for police. Mr.

Munroe’s guilty plea therefore had a more significant benefit than the plea in Dafoe . [ 47 ] On May 26, 2023, Mr. LeBlond, counsel for Timothy Munroe, provided the court with the Defence’s submissions on Dafoe . Timothy Munroe concurs with the Crown’s submissions on Dafoe . He still seeks a four to six month conditional sentence. Mr. LeBlond emphasized the offender’s driving in Dafoe was significantly more egregious than Timothy Munroe’s driving on June 23, 2021. [ 48 ] In my view, the video surveillance is strong evidence in favour of the Crown.

There is no suggestion the civilian witnesses are reluctant to testify at trial. [ 49 ] I recognize the distinguishing circumstances between this case and Dafoe . Still, I find many of Judge Guild’s comments in Dafoe apropos. Specifically: a. The most important sentencing principles are denunciation and deterrence as it is clear Timothy Munroe does not care about laws that relate to driving or court orders prohibiting him from driving: Dafoe , para. 30 ; b. The offender’s rehabilitation is not a factor. Timothy Munroe is 53 years old.

His explanation as to why he drove while disqualified amounts to no explanation at all: Dafoe , para. 30 ; c. The rehabilitation required in this case is simply to have Timothy Munroe respect laws and court orders. That is entirely internal to the offender: Dafoe , para. 31 ; d. “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”: Dafoe , para. 32 ; and e. “That is also the only way he will hopefully become responsible. It is obvious . . . he has consistently chosen to be irresponsible. He had no right to drive. . . . His criminal record overwhelmingly shows he does not care to conform to Canadian societal norms”: Dafoe , para. 33 . [ 50 ] R. v.

Oliver , 2019 NLSC 20 , is a decision of Justice Goodridge of the Newfoundland and Labrador Supreme Court. The 50-year- old offender pleaded guilty to operating a vehicle while disqualified. It was an isolated incident that did not involve alcohol or other criminal activity. Mr. Oliver had a significant criminal record indicating that over a 30-year period, he amassed 78 criminal convictions, 18 of which were for driving while disqualified. The court acknowledged that in the recent years, Mr. Oliver had taken a number of positive steps to address his alcohol and drug issues.

Justice Goodridge noted the range of sentence for the offence of driving while disqualified appeared to be from four months to three years in jail. He held that: [4] For this particular offender, and this particular offence, the primary goal of sentencing is protection of the public and the maintaining of confidence in the administration of justice. This is achieved by focusing, in the current context, on the sentencing principles of deterrence and denunciation. [ 51 ] The court concluded Mr.

Oliver had “almost no respect for court orders”; he had been given “many chances” to rehabilitate himself; and, he needed a “stronger message” in an attempt to have him “mend his ways”. Justice Goodridge states: [35] There is a high degree of responsibility on Mr. Oliver’s part, considering that the current offence is merely the latest in a string of 18 convictions for driving while disqualified, going back over the past 25 years. Interspersed with these convictions there are breaches of probation, assaults, thefts, causing a disturbance and more. Mr.

Oliver has little or no respect for the laws, which seek to protect the public. He flouts the Court's efforts to eliminate that risk and he shows contempt for the Court's interest in protecting the innocent members of the public. [ 52 ] Justice Goodridge imposed a sentence of two years’ jail plus a day, with a lifetime driving prohibition. STEP-UP PRINCIPLE [ 53 ] Timothy Munroe is a recidivist driving offender. He is no longer a young man. In my view, the paramount sentencing principles are denunciation and deterrence.

Timothy Munroe’s record indicates he has received significant jail sentences in the past for driving while disqualified. On September 25, 2020, the date of his last conviction for driving while disqualified prior to this offence, Timothy Munroe received a six-month jail sentence, followed by 18 months’ probation and a 10-year driving prohibition.

I recognize this conviction was part of a global disposition of a number of more serious driving offences for which Timothy Munroe received additional penalties. [ 54 ] The court can consider whether it ought to “step-up” the penalties for Timothy Munroe continuing to drive while prohibited. In R. v. Kory , 2009 BCCA 146 , Ryan J.A. explained the “ step-up” principle as follows: [6] . . . The “ step-up principle ” is not a principle or goal set out in the Criminal Code . It is a short hand way of expressing the idea that

sentencing requires a measured approach, even for repeat offenders. As Mr. Justice Lambert put in R. v. Robitaille, (BC CA) . . . [8] In relation to that argument, I say that the theory that sentences should go up only in moderate steps is a theory which rests on thesentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor.

So the conclusion,in any particular case, that the increase in sentence should not be too large rests on a consideration of the circumstance of the particularoffender and a desire not to discourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may beseen by him to be a dead weight on his future life. . . . Thus, to achieve the goals of specific deterrence and rehabilitation it often is unnecessary to do more than increase punishmentincrementally when an offender is engaged in repetitive offending.

However, the step-up principle should be applied where thecircumstances call for it. [55] In R. v. Drake, 2019 BCCA 170 , the Court of Appeal found the step-up principle had no significant application in thecase before it. The court stated: [13] Turning to the submission that the judge imposed a disproportionate step-up, we agree with the Crown that the step-up principle hasno significant application here. It applies generally where an offender’s rehabilitation is a significant factor.

Here it is not; on thecontrary, as the judge concluded, denunciation, deterrence and the need to separate this offender from society are the more significantfactors in this case. [56] In R. v. Louie, 2017 BCCA 218, Justice Fitch discussed the “step-up” principle at para. 24: [24] . . . the step-up principle embodies restraint by requiring, as a general rule, that sentences for repeat offenders go up in moderatesteps so as not to discourage rehabilitative efforts: R. v. Kory, 2009 BCCA 146at para. 6.

The step-up principle is not of great assistancein a case of this kind where an offender with a lengthy record of related behaviour for which he or she has received consistently lowsentences has been undeterred by previous sanctions and has failed to benefit from previous interventions designed to ameliorate the riskof re-offence. [57] R. v. Bernhardt, 2017 YKTC 27 , is a decision of Judge Lilles of the Yukon Territorial Court. In that case, theIndigenous offender entered a guilty plea to driving while disqualified (s. 259(4) CC). Mr.

Bernhardt had a serious criminal record,which included nine previous driving-while-disqualified convictions. His last conviction for driving while disqualified was in 2006, buthe had convictions in 2010 and 2012 for impaired driving where his disqualification was an aggravating factor.

After canvassing anumber of authorities (including Hindmarch and Taylor), Judge Lilles states: [19] In reviewing the case law, I have cautioned myself to be careful not to fall into the trap of adopting the "step-up" or the ladderprinciple, meaning that a judge imposes lengthier and lengthier sentences if the offender keeps committing the same crime, with the ideathat if the sentences get long enough, perhaps the person will stop committing that crime. If one follows the step-up principle adabsurdum, the resulting sentence will very soon become grossly disproportionate to the offence.

Moreover, there is very little researchthat supports the idea that longer sentences alone increase the effect of deterrence. [58] Judge Lilles sentenced Mr. Bernhardt to 13 months’ incarceration less time served and a lifetime driving prohibition under s. 259of the Criminal Code. Judge Lilles considered and rejected a period of probation on the basis there was no likelihood the offender wouldabide by any condition the court imposed in any event. [59] R. v. Hunziker, 2016 YKTC 28, is a decision of Judge Chisholm of the Yukon Territorial Court.

In that case, the 46-year-oldoffender pled guilty to driving while disqualified, contrary to s. 259 of the Criminal Code. The issue was not the manner of Mr.Hunziker’s driving, but the fact he was an incorrigible recidivist disqualified driver. He had been convicted of 11 driving-while-disqualified offences, as well as a number of offences for impaired driving. He had significant history under the Motor Vehicles Act, RSY2002, c. 153. Judge Chisholm did not find rehabilitation was “completely out of the question” for Mr.

Hunziker, but that he “must bedeterred from his chronic and flagrant breaches of driving prohibitions.” Judge Chisholm imposed a sentence of 20 months'imprisonment, less time spent in pre-sentence custody, followed by a five-year driving prohibition. Judge Chisholm states: [22] Mr. Hunziker has displayed an attitude of contempt, with respect to driving prohibitions put in place to protect the community. Hisactions detract from the confidence the public should have in the judicial system.

As he amassed convictions for driving whiledisqualified and drinking and driving offences, relatively lenient sentences of incarceration were not sufficient to deter his behaviour.Much more substantial jail sentences in 2014 for two driving while disqualified offences also failed to deter him. At that time, thesentencing judge warned him he would likely face higher penalties if he continued to offend. At the time of the present offence, he wasnot far along in the six-year driving prohibition. He has presented no evidence to minimize the circumstances of the present offence.

CONDITIONAL SENTENCE [60] The defence submits there is no legal bar to a conditional sentence in this case and that Timothy Munroe’s change ofcircumstances, and the Supreme Court direction in Proulx, demands serious consideration of a conditional sentence. In addition to hiscommitment to assisting his elderly and ailing mother, Timothy Munroe has clearly demonstrated his ability to comply with court orders.He is 53 years old and in the phase of maturity that he is capable of conducting himself appropriately in the community.

Moreover, theSupreme Court of Canada in Proulx has held that conditional sentences do carry a deterrent value, in particular, if they are of a lengthierduration than a jail sentence behind bars. It is for this reason the defence proposes a conditional sentence of 120 days to 180 daysduration (four to six months) on conditions similar to those imposed by Judge Mrozinski in her September 21, 2022 Release Order. [61] R. v.

Andel, 2017 BCPC 146 , the offender pleaded guilty to driving while disqualified and obstructing a peace officer.He had a lengthy and very serious criminal history as well as a lengthy and serious driving history. At the time of sentencing, Mr. Andel

was 60 years old, he suffered from various health concerns, and was on social assistance disability. Judge Challenger rejected thedefence submission for a conditional sentence. She states that despite “a number of very positive things which are happening forMr. Andel . . . he has an unbroken history of offending and flaunting court orders.” Judge Challenger could not find that in all of thecircumstances a conditional sentence was appropriate and, in any event, she was not satisfied Mr. Andel would comply with the terms ofa conditional sentence and had concerns about the safety of the public.

Judge Challenger imposed a nine-month jail term followed by athree-year Criminal Code prohibition under s. 259. She went on to note that, given Mr. Andel's history of driving and driving whileprohibited, had the Crown been able to rely on their notice of greater punishment, she would have considered imposing a lifetimeprohibition from driving for Mr. Andel. [62] R. v. Blaisdell, 2019 PESC 43 , is a decision of the Honourable Chief Justice Tracey L. Clements of the Prince EdwardIsland Supreme Court. Mr. Blaisdell pled guilty to two counts of operating a “conveyance” (i.e. a motor vehicle) while prohibited.

Hewas 35 years old, had a troubled childhood, a history of addiction, and a lengthy criminal record for related offences. The courtconcluded the facts and the law did not support the imposition of a conditional sentence, noting in particular the frequency in whichMr. Blaisdell had been convicted of driving while prohibited in the past, and the potential risk to the public. Justice Clements imposed asentence of: (

a) nine months for one offence; (

b) ten months (consecutive) for the second offence; and (c) 18 months’ probation. JusticeClements declined to impose a further driving prohibition as Mr. Blaisdell still remained under previous driving prohibitions for anumber of years. [63] R. v. Bennett, (NLPC), is a decision of PCJ Gorman of the Newfoundland and Labrador Provincial Court.Mr. Bennett pled guilty to driving an all-terrain vehicle while he was under a prohibition from driving any motor vehicle. Mr. Bennettwas 27 years old, gainfully employed, and had two children with whom he had contact.

He had 14 prior convictions, two for havingoperated a motor vehicle while prohibited from doing so; three for breaching other court orders; and two for flight from the police. JudgeGorman discussed the impact of a criminal record for similar offences: [14] It has been held that a "previous criminal history is a factor which can be taken into account in determining the level of sentencewhich is appropriate. It should not be given a weight such that it becomes more influential than the circumstances of the offence inquestion.

It may be relevant to the question of whether the offence is uncharacteristic for the offender or, on the other hand, whether theoffender demonstrates a continuing attitude of disobedience of the law" (see R. v. Presgrave [2014] QCA 105, at paragraph 32). It hasalso been noted that while "an offender's criminal record, particularly for the same offence, is a relevant consideration, each offence mustbe considered based on the particular factual circumstances" (see R. v. Squires, 2012 NLCA 20 , [2012] N.J.

No. 101 (C.A.), atparagraph 55). [64] In considering the principle of parity, Judge Gorman canvassed multiple authorities. He took into consideration Mr. Bennett’smitigating factors (full-time employment and familial obligations and connections) and his aggravating factors (Mr. Bennett’s history ofdriving while prohibited and his longstanding and persistent pattern of ignoring court orders. Judge Gorman noted that prior long periodsof incarceration have not deterred Mr. Bennett. Judge Gorman rejected a conditional sentence as insufficient to properly reflect thesentencing principles that must be stressed (R. v.

McNish, 2021 ABCA 28). He stated: [53] . . . In this case, to give “meaningful expression” to the principles of denunciation and deterrence, “a conventional prison term [is]required” (see R. v. Ali, 2022 BCCA 83, at paragraph 39). In addition, based upon Mr. Bennett’s history of refusing to comply with courtorders, I am not satisfied that Mr. Bennett would comply with the conditions imposed. [65] Ultimately, Judge Gorman imposed a three-month jail sentence and a 12-month prohibition against operating any conveyance. CONCLUSION ON SENTENCE [66] Timothy Munroe has an atrocious driving record.

He is 53 years old and in my view, his prospects for rehabilitation are mostlybehind him. The paramount principles in play in this sentencing are denunciation, deterrence, and protection of the public. I do notconsider a conditional sentence appropriate in the circumstances of this offence committed by this offender. I sentence Timothy Munroeto one year in prison behind bars less time served. I understand he has served 26 actual days in pre-sentence detention with respect to thismatter, which entitles him to 39 days with enhanced credit.

This means Timothy Munroe will have 326 days left to serve on his sentence [67] I further order Timothy Munroe will be subject to a three-year driving prohibition pursuant to s. 320.24(5), commencing after thecompletion his incarceration. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia