R. v. MacDonald, 2018 NSPC 25

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacDonald , 2018 NSPC 25 Date: 2018-04-16 Docket: 8063554, 8084766, 8121946, 8121945 Registry: Pictou Between: Her Majesty the Queen v. Donald Joseph MacDonald SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: 2018: 16 April in Pictou, Nova Scotia Charge: Paras. 145(3)(b), 253(1)(b), and 348(1)(

b) of the Criminal Code of Canada Counsel: Patrick Young for the Nova Scotia Public Prosecution Service Douglas Lloy QC for Donald Joseph MacDonald By the Court:

Preamble [ 1 ] Trials of alleged crimes require the court to weigh and assess competing theories of varying degrees of complexity, but limited almost always to a binary outcome: guilty or not guilty. [ 2 ] Sentencing hearings, too, bring rival theories into play; however, the legal outcomes which the court might consider in imposing a sentence may be varied and expansive.

Even in cases caught by mandatory-minimum punishments, or subject to appellate-level- mandated ranges of penalties, there will remain for sentencing courts a significant degree of discretion, described usually as, indeed, a sentencing range: see R. v. Nasogaluak , 2010 SCC 6 at para. 43 ; R. v. S.D.L. , 2017 NSCA 58 at paras. 14-16 ; R. v. Oickle , 2015 NSCA 87 at para. 40 ; R. v. Phinn , 2015 NSCA 27 at para. 67 ; R. v. A.N ., 2011 NSCA 21 at para 34 ; R. v. Naugle , 2011 NSCA at paras. 40-43. [ 3 ] The sentencing-range issue looms large in this case.

Donald Joseph MacDonald is to be sentenced for breaking into someone’s home, violating his bail twice, and driving with a very high blood-alcohol concentration in his body. The prosecution seeks a federal penitentiary term of three years; defence counsel seeks probation and fines. The difference spans quite a range, indeed. Precis of charges before the court [ 4 ] Mr. MacDonald elected trial in this court, and pleaded guilty to a break-and-enter-dwelling charge under para. 348(1) (

b) of the Criminal Code (case 8063554). There was an agreed statement of facts placed before the court; I shall refer to cogent portions of it later in this judgment. The prosecution conceded that Mr. MacDonald had been detained unconstitutionally by police following his arrest for the break-in, in violation of s. 9 of the Canadian Charter of Rights and Freedoms , for approximately sixteen hours; the prosecution acknowledged as well that Mr. MacDonald was entitled to a reduction in his sentence as an appropriate and just remedy under sub- s. 24(1) of the Charter . Stated briefly, police failed to bring Mr. MacDonald before a justice without unreasonable delay, as required under para. 503(1)(

b) of the Code . The officers who had arrested Mr. MacDonald believed mistakenly that they could wait around for up to a day, unaware, it seems, that para. 503(1)(

b) has been interpreted consistently for over two decades as setting an absolute outer 24-hour limit for lawful detention, but making it mandatory to bring a detainee before a judicial officer earlier than that if practicable. I shall deal with the Charter -remedy issue at the end of this decision. [ 5 ] Mr. MacDonald pleaded guilty to a

summary count of violating a curfew condition of his release, contrary to para. 145(3)(

b) of the Code (case 8084766). Police conducted a bail-compliance check the evening of 17 March 2017 and discovered that Mr. MacDonald was not home. Police determined later that Mr. MacDonald checked in just after 11 p.m., an hour after his curfew had started. [ 6 ] Finally, Mr. MacDonald pleaded guilty to a

summary count of driving with a prohibited blood-alcohol level, contrary to para. 253(1) (

b) of the Code (case 8121945), and a connected

summary bail violation by consuming alcohol (case 8121946). Mr. MacDonald was

stopped by police just after 8 p.m. on 3 July 2017; he ran a red light and pulled over only after driving some distance with police inpursuit. His presumptive blood-alcohol concentration was 260 mg ETOH/100ml bld. A reading in excess of 160 mg ETOH/100 ml bldis aggravating statutorily in virtue of s. 255.1 of the Code. Mr. MacDonald’s bail forbade him from consuming alcohol. General sentencing principles [7] In determining an appropriate penalty, it is important that the court recognize that sentencing is a highly individualized process: R. v.M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 80; R. v.

Ipeelee 2012 SCC 13 at para. 38; R. v. Scott, 2013 NSCA 28 atpara. 7; R. v. Redden, 2017 NSSC 172 at para. 28; R. v. MacBeth, 2017 NSPC 46 at para. 8. "Only if this is so can the public be satisfiedthat the offender 'deserved' the punishment he received and feel a confidence in the fairness and rationality of the system": Re B.C.Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486 at 533. [8] In determining a fit sentence, a sentencing court ought to take into account any relevant aggravating or mitigating circumstances:para. 718.2(

a) of the Code. The court must consider also objective and subjective factors related to the offender's personal circumstancesand the facts pertaining to the particular case: R. v. Pham 2013 SCC 15 at para. 8. [9] Assessing a person's moral culpability is an extremely important function in the determination of any sentence. This is because asentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. That fundamental principleis set out in s. 718.1 of the Code.

In Ipeelee at paragraph 37, the Supreme Court of Canada noted that proportionality is tied closely tothe objective of denunciation. Proportionality promotes justice for victims, and proportionality seeks to ensure public confidence in thejustice system. [10] In R. v. Lacasse 2015 SCC 64 at para. 12, the Supreme Court of Canada confirmed that proportionality is a primary principle inconsidering the fitness of a sentence. The severity of a sentence depends upon the seriousness of the consequences of a crime and themoral blameworthiness of the individual offender.

A consequential analysis requires the court to consider the harm caused bycriminalised illegal conduct. Lacasse recognized that determining proportionality is a delicate exercise, because both overly lenient andoverly harsh sentences imposed upon an offender might have the effect of undermining public confidence in the administration of justice. [11] Pursuant to para. 718.2(

b) of the Code, this court is governed by the principle that a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances. This is the principle of sentencing parity.

In R. v.Christie, 2004 ABCA 287 at para. 43, the reviewing court held that: [w]hat we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similarcircumstances are understandable when viewed together . . . . [12] This is the penalty analog of the principle of legality: not only must members of the public know what type of conduct iscriminalised—see, e.g., R. v. Lohnes (SCC), [1992] 1 S.C.R. 167 at para. 27—they must know also the penalties thatmight be imposed for engaging in that conduct.

The theory is that knowledge of both the risk of liability and the extent of liability willhelp those contemplating illegal conduct to make informed choices. See Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing, 9th ed (Markham: LexisNexis, 2017) at para. 1.25. [13] The court must apply the principle that an offender not be deprived of liberty if less restrictive sanctions might be appropriatein the circumstances. Furthermore, the court must consider all available sanctions other than imprisonment that are reasonable in thecircumstance. These restraint criteria are found in paras. 718.2 (

d) and (

e) of the Code. [14] In R. v. Gladue, (SCC), [1999] S.C.J. 19 at paras. 31 to 33, and 36, the Supreme Court of Canada stated thatthe statutory requirement that sentencing courts consider all available sanctions other than imprisonment was more than merely acodification of existing law. Rather, the provision was to be seen as a remedy whereby imprisonment was to be a sanction of last resort. [15] None of the charges before the court carries a mandatory-minimum term of imprisonment. [16] The para. 348(1)(

b) count carries a maximum term of imprisonment of life, to which might be added a fine (s. 734), or a periodof probation (para. 731(1)(b)). It is a primary-designated offence under s. 487.04; it is not eligible for a conditional sentence, given para.742.1(c), nor is it eligible for a discharge, given s. 730 of the Code. However, it is eligible for a number of purely non-custodialsentences: a fine alone (s. 734); a suspended sentence (para. 731(1)(a)); a fine and probation (para. 731(1)(b)). [17] The

summary s. 145 counts are subject to the maximum penalties set out in s. 787 of the Code; there are no mandatoryminimums. [18] The

summary para. 253(1)(

b) count carries a mandatory minimum fine of $1000 in accordance with sub-para. 255(1)(a)(

i) anda maximum sentence of 18 months per sub-para. 255(1)(c); the court must impose a driving prohibition of between one and three years—para. 259(1)(a). Offence seriousness [19] In assessing the seriousness of the break-and-enter count, I have reviewed the agreed statement of facts. It was not a crime of

violence; nor was it an enterprise break-in, carried out to rob or steal things from the owner. It does not fall within the definition of a home-invasion offence as set out in s. 348.1 of the Code . The agreed statement of fact leads me to conclude that Mr. MacDonald, impaired by the disinhibiting effects of alcohol, forced his way into the apartment of the victim while no one was home. The victim did not know Mr. MacDonald. What was found by the victim’s son when he arrived at the apartment was alarming to him, as it would have been to anyone finding a stranger in the home of one’s parent. Remarkably, Mr.

MacDonald was partly undressed, and was surprised to see someone other than the victim—thus his remark, “You’re not [D.]”. In evaluating the seriousness of this charge, it is important that I recite the unsettling disarray the victim found when she went through her home with police.

The following is abstracted from the agreed statement of facts: • Pink panties from the bedroom were moved to the kitchen table. • A makeup bag in the bathroom was moved and mascara was taken from the bag. • A tube of mascara from the victim’s makeup bag in the bathroom was located on the kitchen counter with a note made with the mascara. The note was indiscernible. • A pair of knitted blue slippers—which did not belong to the victim—was found under the dresser in the bedroom. • A silver chain clasping a religious pendant was found hanging on a mirror in the living room. Police found Mr.

MacDonald’s DNA profile on it. • Pictures in the living room were moved. • The victim’s shower curtain was drawn open. • Towels that the victim had left hanging on a rack were moved, but appeared dry. • The victim’s bedding was re-arranged, blankets were bunched up and in significant disarray. Her bed was very messy. • The victim’s scented candles appeared to have been lighted in front of her refrigerator and kitchen counter.

The victim found residue puddles of wax. • A phone number written on a piece of paper was missing. • A roll of paper towels was moved and placed on a different location on a kitchen counter. [ 20 ] This, in my view, carries all the warning signs of someone who had developed an infatuation with a stranger, heedless of the boundaries of agency and consent. The facts resemble in many respects those before the sentencing court in R. v. Skinner , [2002] N.J. No. 43 (Prov. Ct.) , aff’d 2002 NFCA 44 . While Mr.

MacDonald might have done this while under the disorganizing effects of alcohol, I am convinced nevertheless that this was a serious break-in; the full objective of it was foiled only because of the fortuitous arrival of the victim’s son. [ 21 ] How far Mr. MacDonald might have taken things? That would be the realm of speculation. [ 22 ] What is not speculative is the impact that this crime had on the victim: it was substantial—and not surprising, given the elevated level of the invasion of her privacy and security.

The victim-impact statement which was presented to the court describes the victim’s fear and anxiety, her loss of sense of security and safety in her own home; she laments her trust in others as having been sabotaged and expresses worry about the effect of this violation on her son. I am satisfied beyond a reasonable doubt—the standard prescribed in para. 724(3)(e)—that the para. 348(1) (

b) offence has had a significant impact upon the victim; this is an aggravating circumstance under sub-para. 718.2(a)(iii.1) of the Code . In R. v. Stewart , 2009 NSSC 7 , the sentencing judge described the impact that residential break-ins will have upon homeowners: I accept without reservation the Crown's suggestion that homeowners do feel violated by the Commission of this kind of offence. To call it a mere property offence is a mis-description.

If a property is impacted, it impacts on the feelings of security of not just these particular people but by others in the community who hear about this and they do hear about it from them. See also R. v. Cooper , 2015 NSPC 3 at para. 26 , and R. v. Greencorn , 2013 NSPC 112 at para. 14 . [ 23 ] This was not a low-end, technical, whereby-he-broke-the-close offence. Nor was it a break-in at the upper extremity of the scale as in a home-invasion case with occupants being threatened or attacked.

I would situate this offence at the mid-range for a non- violent entry of a dwelling. [ 24 ] The facts supporting the drinking-and-driving charge place Mr. MacDonald behind the wheel of a vehicle with a highly- elevated blood-alcohol concentration—and after having been admitted to bail. His presumptive BAC—260 mgETOH/100ml bld—falls well in excess of the aggravating threshold of 160 mg ETOH/100ml bld set out in s. 255.1 of the Code .

The oft-cited risk posed by drunk drivers was restated in Lacasse at paras. 7-8 : 7 The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol- Impaired Driving: A Common Approach (2009), at p. 5. 8 This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone,

it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting inhospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 16) [25] Mr. MacDonald’s BAC was very high; however, his observed manner of driving was not overtly dangerous—although I hastento add that Mr. MacDonald was not under observation by the police for very long, and anyone with his level of BAC would be in nocondition to operate a motor vehicle safely. Yes, Mr.

MacDonald was on bail when he drank and drove. However, that factor must notbe tallied twice in aggravation, as Mr. MacDonald has pleaded guilty to breaching his bail and will be sentenced for it. An aggravatingfactor should not count twice as a person should not face multiple punishments for the same wrongdoing: R. v. Stewart, 2016 NSCA 12at para. 27. [26] What about Mr. MacDonald’s breaches of bail?

Bail violations can run the gamut of the technical and trivial—for whichallowances might be made—all the way up to the serious and substantial, which may shake the confidence of the public in the ability ofthe court to restrain the harmful behaviour of those already facing allegations of serious crimes. Some breaches might capture whatwould ordinarily not be law-offending behaviour. For instance, most people who are at least 19 years old can drink alcoholic beverageslegally; however, someone who is on an undertaking to abstain cannot.

Most people can stay out as late as they like; but someone boundto a curfew will need curtail evening activities early. Contrast a curfew slip to a case of someone on bail to keep the peace who commitsa theft or who assaults somebody. The latter type of breach is founded on a predicate offence, which ought to be regarded as moreserious. [27] In Mr. MacDonald’s case, one breach had him staying out a little bit beyond his curfew; that one is not too bad. [28] However, in his second lapse—which occurred after he had been charged for the curfew breach—Mr.

MacDonald consumedalcohol after having been ordered not to by the court. There are two factors that make this particularly grave. First, Mr. MacDonaldknew that drinking too much was what got him into trouble in the first place. Second, he drank and drove, to the extent that he posed asignificant danger to the public. I am mindful that I must not punish Mr. MacDonald twice for the same offence, and Mr. MacDonaldwill be sentenced for a para. 253(1)(

b) charge. Still, I cannot disconnect Mr. MacDonald’s driving completely from the circumstances ofthis bail violation. [29] This analysis leads me to the conclusion that Mr. MacDonald’s drinking-and-driving and second-breach offences fall withinthe upper ranges of severity for cases of this nature prosecuted summarily. Moral culpability [30] An analysis of Mr. MacDonald’s moral culpability requires an examination of, yes, factors connected to the crime, but also to abroader array of personal traits, strengths and weaknesses. In R. v.

Arcand, 2010 ABCA 363, the Court elaborated on the meaning of thiscriterion: 58 The "degree of responsibility of the offender" as used in s. 718.1 certainly includes the mens rea level of intent, recklessness orwilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively oncriminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater themoral culpability.

However, the reference in s. 718.1 is not simply to the "mens rea degree of responsibility of the offender" at the timeof commission of the crime. Parliament evidently intended "degree of responsibility of the offender" to include other factors affectingculpability. These might relate, for example, to the offender's personal circumstances, mental capacity or motive for committing thecrime. Where else does the Code provide for an offender's degree of responsibility generally to be taken into account? Here, too, theanswer takes us to s. 718.2. 59

Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of theproportionality principle or properly influence its

interpretation and application. Either way, all are relevant in determining a just sanctionthat satisfies the proportionality principle. 60 The requirement under s. 718.2(

a) that the court consider both aggravating and mitigating circumstances of the offence or theoffender goes directly to either or both the gravity of the offence and degree of responsibility of the offender. For example, from the timeof Blackstone, it has been recognized that factors such as relative youth, immaturity, lack of education, and diminished capacity aremitigating factors as compared to settled criminality.

Section 718.2(

a) also permits courts to take into account the relative degree ofresponsibility amongst parties to a crime. While the criminal law does not distinguish between the principal offender and parties to anoffence in terms of criminal liability, for most crimes, the relative degree of culpability of parties potentially varies widely. Thus, anoffender who is the ringleader of a crime may well receive a higher sentence than, for example, an immature follower.

On the otherhand, there may be no basis on which to distinguish between two (or more) offenders, especially where the crime is a joint gang attack ona victim. [Citations omitted.] [31] The break-and-enter charge is the one that places Mr. MacDonald’s liberty most at risk; it carries a penalty of up to lifeimprisonment, and the benchmark sentence in Nova Scotia for breaking into the property of others is three years in a penitentiary: see,e.g., R. v. Adams, 2010 NSCA 42 at para. 29. Moral culpability looms large with such substantial issues as stake.

As with offenceseriousness, proportionality is in play when measuring a person’s blameworthiness. As explained in R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538 at 546-7 (C.A.): The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particularoffender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm

occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherenceto the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [Citations omitted.] [32] I would situate Mr. MacDonald’s degree of responsibility for the break-in toward the lower end of the scale for a seriouscategory of offence.

I say this because: • There is no evidence of planning or premeditation; I believe that this was a spur-of-the-moment, rash-judgment offence,committed under the disinhibiting effects of alcohol; • The break-in did not involve violence; • It was not an enterprise crime motivated by a desire for material gain; • There was no violation of trust involved in the offence; • Mr. MacDonald cooperated with police, and implicated himself in the crime; • Mr. MacDonald accepted responsibility for his actions by pleading guilty. [33] When I assess moral responsibility for all of the offences, I note that Mr.

MacDonald has no criminal record. The presentencereport describes a now 61-year old man who was adopted in infancy due to a traumatic family event. Mr. MacDonald completedvocational training and was employed steadily in the building trade until just over one year ago. His two marriages ended in divorce,due, it seems, to alcohol-use disorder; he has adult children, and his relationship with them has suffered due to this chronic condition. Mr. MacDonald receives a modest retirement income, but carries a substantial consumer debt.

His health is poor, made worse by his useof alcohol. [34] Evidence presented by defence counsel at the sentencing hearing presents concrete signs of improvement. [35] Mr. MacDonald recently attended Crosby House, an addiction-treatment centre in the Valley. [36] He attended counseling with Mental Health and Addictions through the Nova Scotia Health Authority. Mental-health servicesavailable in this area are notoriously lacking; consequently, Mr. MacDonald has found A.A. to be his best support.

He attends A.A.meetings frequently and regularly, and has accumulated many awards for his consistent and continuous sobriety. Mr. MacDonald’ssponsor testified at the sentencing hearing, and described Mr. MacDonald’s regular attendance at A.A. meetings. I am convinced thatMr. MacDonald is committed to doing his best to break free of his alcohol dependency. [37] Mr. MacDonald has complied with restrictive terms of bail since 3 July 2017, which signifies to the court that he has come toappreciate better the need to comply with court-ordered conditions of conduct.

Sentence parity [38] The Nova Scotia Court of Appeal has defined a three-year benchmark for break-and-enter sentences—see, e.g., R. v.

Adams,2010 NSCA 42 at para. 49—and the prosecution made reference to a number of cases (including some which I decided) in line with thatguidance. (It was pointed out to me recently in an unrelated case that the prevalence of break-and-enter charges coming into this courtdropped significantly several years back after I began imposing sentences which were in line firmly with the Adams benchmark; I think Ican say that the incidence of charged break-ins in Pictou County remains low, based on my observations as a sole-charge judge in thisjudicial centre.

However, there is no way to tell whether the sentences which I imposed years ago had anything to do with this decline innumbers.) [39] While Adams set a clear benchmark, there is a counterpoint: as observed by defence counsel, the Court of Appeal has gonealong by times with short, sharp, and even non-custodial sentences for break-and-enter crimes. [40] In R. v.

Perrin, 2012 NSCA 85, the Court upheld a 30-day sentence for a 21-year-old offender who had broken into anunoccupied home while serving a conditional sentence; in doing so, the Court held: [18] Here the trial judge exercised his discretion in electing to impose a short additional period of incarceration. I agree with therespondent that the imposition of what is sometimes referred to as a short, sharp sentence is appropriate, particularly where the offencewas one of property as opposed to a crime of violence. Martin J.A. in R. v.

Vandale (1974), (ON CA), 21 C.C.C. (2d)250, quoted with approval the reasons of McKenna J. of the English Court of Appeal in R. v. Curran (1973), 57 Crim. App. R. 945,where he said: As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity ofthe offence and imposed as this sentence was for reasons of general deterrence, that is, as a warning to others.

The length of a firstsentence is more reasonably determined by considerations of individual deterrence and that sentence is needed to teach this particularoffender a lesson which he has not learned in the lighter sentences which he has previously received. [41] The Court of Appeal has endorsed non-custodial sentences for break-ins. [42] In R. v. Coolen, [1987] N.S.J. No. 351, the Court of Appeal affirmed suspended sentences for two counts of break and enter. Mr. Coolen had been admitted to parole while serving a sentence for, yes, break and enter.

While out, he got drunk and went into twohomes in the North End of Halifax looking for more liquor. Up to that point, his progress on parole had been very promising. I must

disclose that I am familiar with Coolen as I assisted in the preparation of the respondent’s factum. [43] In R. v. Johnston, 2011 NLCA 56 at paras. 36-38, the Court distinguished between prescriptive and descriptive ranges ofsentencing defined on judicial review: 37 The phrase "range of sentence" may also be used in a prescriptive sense. This usage is employed in exercise of an appellate court'sfunctions of minimizing disparity of sentence by " 'fixing a range' ... which reflects the generally appropriate penalty for a category ofcrime" (per Cameron J.A. in R. v.

R.W.B., 2000 NFCA 13, 185 Nfld. & P.E.I.R. 212 at para. 9). Such ranges are then intended toconstitute "guidelines for lower courts" for application in future cases (per Bastarache J. in R. v. Stone, (SCC), [1999] 2S.C.R. 290 at para. 244). 38 Even where "range of sentence" is used in a prescriptive sense, however, it does not mean that a sentencing court may never departfrom that range. As noted by Lebel J. in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para 44: ... it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judgecan order a sentence outside that range so long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentencefalling outside the regular range of appropriate sentences is not necessarily unfit. [44] Based on what the Court of Appeal decided in Adams, I am satisfied that the three-year benchmark for break-and-enteroffences in Nova Scotia remains a prescriptive range set by that Court; however, as in Coolen and Perrin, the Court has affirmeddepartures below that range. [45] The prosecution has advanced an argument that cases involving lower-range sentences affirmed by the Court of Appeal are oflesser precedential value than cases in which sentences were varied upward.

The prosecution did not provide the court with authoritativesupport for this proposition. [46] As to the legal effect of sentences upheld by the Court of Appeal, but with the rider that the Court considered the originatingsentence to have been on the low side, it is useful to examine the standard of review applicable to appeals from sentence. R. v.

Landry,2016 NSCA 53 at paras. 35-38 and 62, sets out the law succinctly: [35] Before turning to the appellant's complaints of error, it is appropriate to recognize that an appellate court is not at liberty to reassessthe issues that faced a trial judge and substitute its own view as to the appropriate outcome. Sometimes an appellate court may wellconclude that it would not have arrived at a particular result, but must defer to the trial court. The level of deference is convenientlyreferred to as the standard of review. [36] The standard of review is different for the two putative errors advanced by the appellant.

A judge must correctly identify and applythe relevant legal principles in arriving at sentence. An appellate court is free to substitute its view of the correct legal principles.Furthermore, if a trial judge errs in law or principle, deference dissipates in relation to the discretionary decision as to sentence. Theappellate court is free to arrive at the appropriate sentence (see R. v. Hawkins, 2011 NSCA 7 at para. 43; R. v. Bernard, 2011 NSCA 53;R. v. Brunet, 2010 ONCA 781; R. v. MacDonald, 2009 MBCA 36; R. v. Provost, 2006 NLCA 30; R. v. Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.); and R. v.

Willis, 2013 NSCA 78). [37] But, as the Supreme Court of Canada recently emphasized in R. v. Lacasse, 2015 SCC 64, the legal error must have been one thatimpacted sentence. [38] Absent legal error that had an impact on the quantum or type of sentence imposed, an appellate court must defer to the sentenceimposed at trial.

It can only intervene if it concludes that the sentence is unfit as being manifestly excessive or inadequate (see R. v.Eisan, 2015 NSCA 65 at paras. 25-26). . . . . [62] To be unfit, the sentence under appeal must be one that is unreasonable in the sense that it is inappropriate as falling outside theacceptable range. There is not a "single appropriate sentence for a similar offender and a similar crime" (R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 at para. 92).

Furthermore, a sentence that falls outside the usual range can nevertheless be upheld if thatdeparture is in accord with the principles and objectives of sentencing (R. v. Nasogaluak, 2010 SCC 6 at para. 44). [47] In Nasogaluak, the Supreme Court of Canada decided: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to crafta sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a "fit" sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case ... [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range so long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [48] This serves to affirm what the Court said in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 92: [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by

sentencing judges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), (SK KB), 16 Sask.R. 40 (C.A.), at p. 43; R. v. Wood (1979), [1979] O.J. No. 855, 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v.Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.),at p. 187.

But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specializeddiscretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as auniform sentence for a particular crime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process,and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise ofacademic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communitiesand regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and currentconditions of and in the particular community where the crime occurred.

For these reasons, consistent with the general standard ofreview we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences wherethe sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similaroffenders committing similar crimes. [49] I am unable to find direct support for the argument advanced by the prosecution that some decisions of the Court of Appeal areof lesser binding effect than others.

Is it not enough for an appellate court to say that a sentence is fit for that decision to be binding? Should a sentencing court have to guess whether a tentative or hesitant finding of fitness might conceal or disguise what the reviewingcourt might have decided if it had had first crack at the case? Should the prosecution be correct in its argument, ought a sentencingcourt considering the precedential value of a sentence-appeal judgment have to turn its mind to which party sought the review?

Andhow much parsing would have to be done in going over comments of a reviewing court that have no effect on the outcome of the case? Suppose, for example, a reviewing court with binding authority decide that a sentence ought not be varied, but offer parenthetically that itcould have been a whole lot higher? Is the precedential value in the decisive outcome—or is it in the inference?

I should think theanswer clear: the greater weight should go to the ratio rather than the obiter. [50] In my view, every sentence review conducted by the Court of Appeal is of equivalent value to sentencing courts in thisProvince, as each judgment of the Court helps define the usual or acceptable range—or the circumstances under which departure fromthat range might be appropriate. Where the weight of precedent might vary will, in my opinion, have to do with the similarity of thecircumstances of the appellate-level case to those before the sentencing court when it considers sentence parity.

I will have more to sayabout parity shortly. [51] Next, the prosecution advances the theory that I ought not follow the sentencing decision in R. v. Barrons, 2017 NSSC 216,because it was decided wrongly or, alternately, because this court is not bound by it. Barrons was relied upon substantially in thesubmissions of defence counsel that Mr. MacDonald ought not be imprisoned. [52] Recall that Barrons was an original sentencing hearing in the Supreme Court of Nova Scotia; the facts of the case described ahome-invasion break and enter which included intimate-partner assault.

In imposing a three-year suspended sentence, the presidingjudge affirmed, at paras. 39-46, that suspended sentences may have a significantly deterrent effect; there is appellate level support forthis: see R. v. T.S., (NS CA), [1996] N.S.J. No. 242 (C.A.) at para. 28, R. v. Bursey (1991), (NSCA), 104 N.S.R. (2d) 94 at 97 (C.A.). This proposition has regained currency since the decision in R. v.

Rushton, 2017 NSPC 2 at para.95. [53] The presiding judge in Barrons found that the individual circumstances of the offender in that case—a youthful offender with astrong academic history, good family support, pre-sentencing commitment to appropriate counselling, a track record of bail compliance—warranted a below-the-range departure.

Considering that, in Coolen and Perrin, the Court was reviewing the sentences of offenderswho, at the time they committed their crimes, were serving sentences of imprisonment in the community, I simply cannot accept theproposition advanced by the prosecution that Barrons was decided wrongly. The departure from the range applied in Barrons wasconsistent with higher authority. [54] As to the binding effect of Barrons, the prosecution asserts that I would be bound by decisions of the Supreme Court of NovaScotia only in cases of the Court exercising an appellate jurisdiction.

The prosecution presented me with no support for this proposition;I was unable to find anything definitive about it in my own research (the point was argued in R. v. Ponnuthurai, [2002] O.J. No. 4771 atpara. 28 (O.C.J.), without a conclusive ruling by the court). [55] Still, the argument would make a nice moot-court case. [56] In R. v. Wetmore (County Court Judge), (SCC), [1983] 2 S.C.R. 284, Laskin CJC for the majority referred tostare decisis as being an “indispensable part of the appellate jurisdiction” of the Supreme Court of Canada (emphasis added).

Theconcept of vertical stare decisis is described in Canada (Attorney General) v. Bedford, 2013 SCC 72, and more specifically in Carter v.Canada (Attorney General), 2015 SCC 5; as stated in Carter at para. 44: The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty whilepermitting the orderly development of the law in incremental steps. [57] Accordingly, it would seem clear that I ought to hold myself bound by decisions of any court to which decisions of this courtmight be appealed; that includes the Supreme Court of Nova Scotia.

However, the point raised by the prosecution in this case is that asentencing decision of this court for an indictable break-and-enter charge is not appealable to the Supreme Court of Nova Scotia. Theproper venue would be the Court of Appeal, in accordance with ss. 2 and 673-676 of the Code. [58] As intriguing as the argument might be, it is to some extent an imaginary controversy in sentencing hearings. This is becausethere is a governing statute which deals with a factor I mentioned earlier—sentence parity: 718.2 A court that imposes a sentence shall also take into consideration the following principles:

. . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . . [59] While this provision of the Code does not annul or jettison the principle of stare decisis, neither does it elevate one level ofjudicature over another in directing sentencing courts’ analyses of outcomes in other cases when assessing sentencing parity. [60] In my view, Mr.

MacDonald’s break-in bears many similarities to the circumstances before the Court in Coolen: an alcohol-animated offence, carried out with little planning or premeditation, not involving the infliction of violence, committed by someone whois likely to continue responding well to rehabilitative substance-use counselling, and so a reduced need for specific deterrence; and in Mr.MacDonald’s case, unlike Coolen, the court is dealing with a first offender.

Indeed, the facts before me are less serious than thosebefore the sentencing judge in Barrons, a case that included a constellation of statutorily aggravating factors not in play here: i.e., home-invasion (s. 348.1); intimate-partner violence (sub-paras. 718.2(a)(ii)-(iii)). [61] I ask, finally, would the court be ignoring the principle of general deterrence in imposing a community-based sentence? [62] General deterrence is argued, generally, in very general terms. However, considered properly, there is much more granularityto it.

In applying the principle of general deterrence, a sentencing court must keep in mind that sentencing is a highly individualizedprocess; the sentencing judge in R. v. Matheson, 2007 NSPC 43 discussed the tension between general deterrence and individualization: 26 The Crown's submission that the right message needs to be sent by the sentence in this case essentially encapsulates what is intendedby the concept of general deterrence. General deterrence supposes that others, with similar inclinations to the offender will be deterred,once they learn about the sentence, from committing a comparable offence.

A sentence emphasizing general deterrence is intended to"deter those of like-mind who may be lured into the [drug] business with the hope of easy gain." (R. v. Butler, [1987] N.S.J. No. 237(N.S.S.C., App. Div.).) The purpose of general deterrence is to "discourage potential offenders from becoming actual offenders." It hasbeen referred to as the "punishment of the offender for what others might do." (R. v. McGinn (1989), (SK CA), 49C.C.C. (3d) 137 (Sask. C.A.).) Judges, such as Vancise J.A. in dissent in McGinn, have expressed serious reservations about theeffectiveness of general deterrence.

Vancise J.A. did so with the following comments at page 157: Contending that longer sentences, for example, six months, would have a greater deterrent effect than a shorter sentence, for example onemonth, is to contend that: (1) the public will know of the sentence (a dubious proposition); (2) the potential offender will perceive thelikelihood of apprehension (a more dubious proposition); and (3) the potential offender knowing he will likely be apprehended wouldcommit the offence for the lower penalty of one month but not for the higher penalty of six months.

Viewed in this way it is smallwonder that an upward variation in sentences appears to have no effect on the crime rate. 27 The degree of publicity a case receives has also been remarked upon as relevant to the deterrent value of the sentence. Nunn J. in R. v.Clarke, [1990] N.S.J. No. 427 (N.S.S.C.), observed about Mr. Clarke's case: "If it receives no publicity then there is no generaldeterrence, other than the several people who may be in court at the time the sentence is given." [63] To be sure, in light of the clear language of para. 718(

b) of the Code, the court is obligated statutorily to consider the principleof general deterrence in fixing every sentence: see R. v. Tran, 2010 ABCA at paras. 8-15. However, it is clear equally from thelanguage of the

preamble of the section—which requires a sentencing court to impose just sanctions that "have one or more of thefollowing objectives"—that there might be times when general deterrence might need to be softened a bit. I think that this is one of thosecases. Recall that general deterrence is intended to dissuade those of inclination similar to the person being sentenced from committingsimilar offences. In this case, Mr. MacDonald’s inclination was brought on to a large measure by his excessive consumption of alcohol. It is questionable whether someone similarly inclined—and impaired— as Mr.

MacDonald would be deterred very much, on the spur ofa drunken moment, by a punishment imposed in a court room that might come to the attention of only a very few. Conclusion [64] I impose a primary designated offence DNA collection order, applicable to case 8063554, the break-and-enter count. The courtintends to impose a fine for this count. I apply R. v. Topp, 2011 SCC 43 at paras. 21-24: I make an affirmative finding on a balance ofprobabilities that Mr.

MacDonald is able to pay a fine; while his retirement income as reported in the presentence report is modest, hecan afford a monetary penalty, especially given the adjustment of his lifestyle, as was the focus of much of the defence submissions onsentencing. [65] Recall, however, that the prosecution conceded that Mr. MacDonald was entitled to a sub-s. 24(1) Charter remedy due to thefailure of police to bring him before a judicial officer without unreasonable delay, as required explicitly in para. 503(1)(

a) of the Code. The experience of the court is that this provision is disregarded habitually by many policing services; this arises from a patentlyerroneous

interpretation of the

section which would have it that a detainee might be kept following arrest for up to twenty-four hours forany reason or for no reason. This is not what the statute allows or requires. R. v. Simpson, [1993] N.J. No. 292 at para. 24 (Prov. Ct.),rev’d (NL CA), [1994] N.J. No. 69 (C.A.), rev’d and original judgment restored (SCC), [1995]S.C.J. No. 12 set out a plain-language

interpretation of the provision: It is sometimes thought that the police may detain such a person for 24 hours. The dominant time factor is "without unreasonable delay"and the limit placed on this period is 24 hours. An unreasonable delay could nevertheless occur in less than 24 hours. It should not beassumed therefore that a violation of s. 503(1) is not taking place notwithstanding that 24 hours has not expired. See also: R. v. MacPherson, (NB CA), [1995] N.B.J. No. 277 (C.A.); R. v. E.W., 2002 NFCA 49; R. v. Rashid, 2010ONCA 591; R. v. Buckley, 2018 NSSC 2 (a decision rendered after the date of Mr. MacDonald’s arrest, but in line completely with

precedent). [ 66 ] “Without unreasonable delay” is not a recondite concept to grasp.

Furthermore, there are now no structural barriers to getting a detainee before a judicial officer promptly: even if the cut-off time for the local judicial centre might have been reached, or even if it might be inaccessible due to weather, there is a fully staffed Justice of the Peace Centre with the full and plenary jurisdiction to deal with persons in custody. [ 67 ] In my view, the appropriate remedy is the partial reduction of the fine the court intends to impose for the break-and-enter count. [ 68 ] In relation to the break and enter, I impose a fine of $2000 and a victim surcharge amount of $600.

I would have imposed a fine of $3000, but reduce the amount to $2000.00 given the Charter violation. The court allows 24 months for payment. I place Mr. MacDonald on probation for three years, the maximum duration allowed under para. 732.2(2)(

b) of the Code with terms to: • Keep the peace and be of good behaviour; • Appear before the court when required; • Notify the court or your probation officer in advance of any change of your name, address, employment or occupation; • Report to a probation officer at 161 Terra Cotta Drive, Suite 2 New Glasgow no later than 4 p.m. on 2 May 2018 and after that as directed; • Not possess take or consume alcohol or any other intoxicating substances; • Surrender to the New Glasgow Policing Service in a lawful manner and not have in your possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and you must surrender at the same time any authorizations, licenses or registrations in your name; • Not be in any place or business where alcohol is the primary product for sale, including liquor stores, agencies of liquor stores, taverns, lounges, bars, pool halls, beverage rooms, show bars or cabarets; • Stay away from the person, home, place of work or education of D.R. and her son D.R., have no contact or communication with them, even if invited, no exceptions; • Attend for substance abuse assessment and counselling as directed by your probation officer; • Attend for any other assessment, counselling or programming as directed by your probation officer; • Participate in and cooperate with any assessment, counselling or program directed by the probation officer, according to the terms directed by the probation officer, and you must immediately report to your probation officer any missed assessment or counselling appointments; • Not possess any image or likeness of D.R.; • Not post any public or social media comment about D.R.; • Attend all medical appointments unless missed with a valid excuse, and you must notify your probation officer of any missed appointments; • Comply immediately with any demand for urinalysis made by you of a peace officer or probation officer in accordance with the terms of paras. 732.1(3)(c.1) and (c.2) of the Criminal Code ; • Sign immediately all consents to release of information required by your probation officer to arrange rehabilitative services; • Not be within 100 metres of the residence of D.R. [ 69 ] In relation to each bail breach, the court will impose a $300 fine for each count; there will be $45 victim surcharge amounts for each count.

Mr. MacDonald will be allowed 24 months for payment. [ 70 ] In relation to the para. 253(1)(

b) count , I apply R. v. Topp , 2011 SCC 43 at paras. 21-24 : I make an affirmative finding on a balance of probabilities that Mr. MacDonald is able to pay an elevated fine; while his retirement income as reported in the presentence report is modest, it is within Mr. MacDonald’s financial means to pay fines. [ 71 ] I impose a 15-month driving prohibition beginning immediately, and a $1500 fine, along with a $$450 surcharge. I allow 24 months for payment. [ 72 ] I wish to thank counsel for their fulsome submissions on the Charter and sentencing hearings.

Those submissions, while divergent, were entirely principled and argued effectively. Furthermore, the admission by the prosecution that Mr. MacDonald was entitled to a Charter remedy arising from his unconstitutional detention highlighted an important point regarding the law regarding bail. In my view, this exemplifies the role of the prosecution as a minister of justice.

JPC