R. v. Cluney, 2013 NLCA 46

Date: 20130703 Docket: 12/48 Citation: R. v. Cluney , 2013 NLCA 46 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : NAYTHAN CLUNEY RESPONDENT Coram: Rowe, Barry and White JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Happy Valley Appeal Heard: June 5, 2013 Judgment Rendered: July 3, 2013 Reasons for Judgment by Barry J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Robin Fowler

Counsel for the Respondent: Derek Hogan Barry J.A.: [1] The Crown appeals a six month sentence imposed on Mr. Cluney for the offence of impaired driving causing death. TheProvincial Court judge found that the deceased passenger had grabbed the steering wheel just before the collision which caused hisdeath. Mr. Cluney was driving with a blood alcohol concentration of between 191 and 222 milligrams of alcohol in 100 milliliters ofblood. Leave to appeal is not opposed by Mr. Cluney and is granted as the appeal has an arguable basis and is of sufficient merit: See,R. v. Perrier, 2009 NLCA 61, 293 Nfld. & P.E.I.R. 92. ISSUES [2] Three issues arise: (

i) Did the trial judge err in sentencing by considering the conduct of the deceased as a mitigating factor on sentencing? (ii) Is the sentence demonstrably unfit? (iii) Did the trial judge err by allowing Mr. Cluney 1.5 days credit for each day served in custody before trial? BACKGROUND FACTS [3] The trial judge found that Mr. Cluney’s car on July 9, 2011 had collided with another vehicle after a passenger, Robert Obed,had grabbed the steering wheel as a joke, leading to the car fishtailing. In addition to the blood alcohol concentration between 191 and222 milligram percent at the time, Mr.

Cluney had consumed narcotics, was speeding and driving a car with a mechanical conditioncausing it to pull to the left. At the time of losing control he had been trying to turn down the sound system of his vehicle and had drivenonto the shoulder of the road and overcompensated while trying to gain control from Mr. Obed. [4] In convicting, the trial judge found that Mr. Cluney’s impaired driving was at least a significant contributing cause to Mr.Obed’s death, being beyond the de minimis range discussed in Smithers v. R., (SCC), [1978] 1 S.C.R. 506.

The trialjudge also concluded that Robert Obed “played a major role in the accident”. STANDARD OF REVIEW [5] Sentences may only be set aside if they are demonstrably unfit or if there was an error of principle, a failure to consider arelevant factor or the overemphasis of a relevant factor. R. v. Johnston, 2011 NLCA 56, 331 Nfld. & P.E.I.R. 129, at para. 15, citing R.v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. THE LAW AND ANALYSIS (

i) The significance of the deceased’s conduct [6] The Crown argues that the trial judge erred in finding a reduced level of culpability for Mr. Cluney warranting a lowersentence because of the deceased’s conduct in grabbing the steering wheel. [7] The Crown relies upon R. v. Mitchell (1981), (PE SCAD), 29 Nfld. & P.E.I.R. 125 (P.E.I. S.C. (A.D.)),which held that the contributing negligence of the deceased is not a defence to a charge of criminal negligence causing death andtherefore should not be a factor influencing the severity of punishment. [8] Mitchell was followed in R. v.

Duncan (1994), (PE SCAD), 116 Nfld. & P.E.I.R. 170 (P.E.I. S.C.(A.D.)),which held that a victim’s failure to wear a seatbelt was not a mitigating factor in sentencing for criminal negligence causing death. [9] The Crown also points to R. v. McCarthy (1997), (NL CA), 157 Nfld. & P.E.I.R. 222 (Nfld. C.A.), wherethe accused while intoxicated struck and killed a pedestrian who was walking on the paved portion of a highway at night while wearingdark clothing and impaired by alcohol and drugs. The accused had a lengthy record of criminal convictions, including six priorconvictions for impaired driving.

At paragraph 13, Gushue C.J.N. stated for the Court: In light of the facts and circumstances of this matter, and the behaviour and attitude of the offender himself, we see no reason whateverto consider reducing the sentence of three years for impaired driving causing death. It is unnecessary to repeat what has already been saidabove, but it is clear that there are too many aggravating factors in this case to warrant any reduction of sentence.

Nor do we consider thesubmission that the victim may himself have been negligent, or acting improperly, to be a factor which may be utilized by the appellantin mitigation of sentence. Indeed, in our view it would be improper to consider the victim's negligence, if such it was, when imposingsentence. (In this regard see [Mitchell and Duncan, citations omitted].) Further, it must be noted that the appellant gave no evidence onthe sentencing hearing, or indeed at all. There was thus nothing before the court to lead it to conclude that Mr. McCarthy was unable toavoid Mr.

Kennedy or that the victim contributed in any way to the incident. [10] Jurisdictions differ on whether contributory negligence of a deceased should support mitigation of sentence. See Cromwell J.A.in R. v. Tower, 2008 NSCA 3, 261 N.S.R. (2d) 135, at para. 72. In R. v. Thompson (1987), 1 M.V.R. (2d) 322 (B.C. Co. Ct.), at para. 6,Wong Co. C.J. held that while contributory negligence by a deceased may not be a defence to a charge of criminal negligence causingdeath, the contributory negligence is a factor which may be considered in mitigation on sentencing. The same conclusion was reached inR. v.

Dash (1948), (NS SC), 91 C.C.C. 187 (N.S.C.A.), at para. 15. [11] The Crown’s authorities, including McCarthy in this Court, must now be viewed in light of the comments of Arbour J. in R. v.Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 49, that courts may not apportion responsibility for harm caused by criminal conduct“except as part of sentencing after significant causation has been found”.

[12]

Section 718.1 of the Criminal Code sets out the fundamental principle of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [13] Considering this

section in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, Lebel J. stated at paragraph 40 for a unanimousCourt that a “sentence must respect the fundamental principle of proportionality” (emphasis in original). He went on to expand on this atparagraph 42: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angleof proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. (Emphasis in original.) Lebel J. confirmed this approach for the majority in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. [14] The principle of proportionality in sentencing supports the trial judge’s approach of mitigating sentence because of the conductof the deceased, particularly considering that Mr. Obed’s act of grabbing the wheel was an intentional as opposed to merely a negligentact.

In this regard, the comments of Green J. in R. v. Evans (1993), (NL SC), 109 Nfld. & P.E.I.R. 61 Nfld. T.D.), atpara. 27, should be considered. There he cited with approval Nadin-Davis and Sopinka, Canadian Sentencing Digest, vol. 1, pages 134-135: Although there is no authority on this point, it is further submitted that different considerations may apply if the contributory negligenceof the victim is

an act, rather than omission. Hypothetically, it is possible that a case may arise in which the accused committed acriminally negligent act, which could not of itself have caused death. The victim, however, himself committed a negligent act whichcombined with the act of the accused, resulted in his death.

In such a case, it can clearly be seen that it would be unjust to punish theaccused as severely as one who had committed a criminally negligent act which, without more, could foreseeably have caused death.[Emphasis added by Green J.] [15] This reasoning applies with greater force where, as here, the victim’s intentional act was the principal cause of the accident. [16] The principle of proportionality applies to sentencing for all criminal offences, including impaired driving causing death: see R.v. Woodward (1993), (NL CA), 108 Nfld. & P.E.I.R. 240 (Nfld. C.A.), at para. 57.

The appropriate range of sentenceis related to the gravity of the offence and the moral blameworthiness of the offender: R. v. Fice, 2005 SCC 32 , 2005 S.C.C.320, [2005] 1 S.C.R. 742, at para. 22, and R. v. Stone, (SCC), [1999] 2 S.C.R. 290, at para. 233. [17] In the present case, to arrive at a fit sentence, the trial judge had to assess Mr. Cluney’s degree of responsibility for Mr. Obed’sdeath. Mr. Obed’s role in causing the accident was an important factor in that assessment. I agree with the trial judge that Mr. Obed’sconduct diminished Mr.

Cluney’s moral blameworthiness and should go to mitigate sentence. [18] The trial judge did not employ the best language in stating that the burden was on the Crown to prove that Mr. Cluney’simpaired driving was the sole cause of Mr. Obed’s death. It is clear, however, from his decision that his comments were merelyconfirming what he found to be a reduced level of culpability on the part of Mr. Cluney. He made no error in so finding. (ii) A demonstrably unfit sentence [19] Lamer C.J.C. noted in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 92, the necessity for deference ininterfering with sentencing where there has been no error in principle: … a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is insubstantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [Emphasisadded.] [20] In Nasogaluak, at paragraph 44, Lebel J. expanded on this: 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 as 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. [21] The respondent in the present case acknowledges that the 6 month sentence imposed may be below the normal range of one tofour years for cases of impaired driving causing death. Indeed the respondent accepts that recent Ontario Court of Appeal decisionssuggest the range may be increasing at the upper end to five years: see, R. v. Junkert, 2010 ONCA 549, 259 C.C.C. (3d) 14, R. v.

Ramage , 2010 ONCA 488 , 257 C.C.C. (3d) 261, and R. v. Kummer , 2011 ONCA 39 , 266 C.C.C. (3d) 32. The respondent submits, however, that the trial judge’s sentence was a reasonable one in the circumstances and should be accorded the deference emphasized in M.(C.A.) . [ 22 ] While sentencing ranges are merely guidelines rather than hard and fast rules, a judge ordering a sentence outside the regular range should explain how it is in accordance with the principles and objectives of sentencing: Nasogaluak , at paragraph 44 . With respect, the trial judge in the present case did not do this. [ 23 ] Mr.

Cluney at the time of the offence was under a court order not to consume alcohol. Yet he drove with a high level of alcohol in his bloodstream and consumed narcotics before driving. Although knowing his vehicle had mechanical problems he drove at a high rate of speed (110 kilometers per hour in a 70 kilometer zone). [ 24 ] In light of these significantly aggravating factors, a sentence of six months is demonstrably unfit. It does not recognize Mr. Cluney’s high degree of culpability and does not satisfy the requirements of deterrence and denunciation.

The appropriate sentence in the circumstances is two years less a day imprisonment. (iii) Exception under s. 719(3.1) of the Criminal Code [ 25 ] Subsections 719(3) and (3.1) of the Criminal Code provide: 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court must take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 26 ] When the trial judge imposed sentence, Mr. Cluney had served 251 days on remand (8 months and 11 days). The trial judge applied enhanced credit of 1.5 to 1 and considered Mr.

Cluney to be entitled to credit for time served of 377 days (12 months and 17 days) more than he needed where the total sentence here was 7 months. The trial judge justified this exercise of discretion by the reasons set out in his earlier decision in R. v.

Myers (2011), 313 Nfld. & P.E.I.R. 56, (NLPC) , where he based enhanced credit on the loss of earned remission (an offender with good behaviour typically serving no more than two thirds of a sentence) while also discussing the loss of parole eligibility, the effect of overcrowding in the remand facility in Labrador and a lack of programming and recreation for prisoners. [ 27 ] Courts have differed on whether the loss of earned remission by itself should justify enhanced credit for remand time since the provisions of subsections 719(3) and (3.1) came into effect on February 22, 2010.

The problem is that, while subsection 719(3) apparently expresses a general rule of one-to-one credit, courts have interpreted subsection 719(3.1) as not requiring exceptional circumstances to justify credit. [ 28 ] In R. v. Carvery , 2012 NSCA 107 , 321 N.S.R. (2d) 321, leave to appeal to SCC granted, 35115 (April 11, 2013), Beveridge J.A. for the unanimous Court concluded that the loss of earned remission should justify enhanced credit for remand time and reviewed conflicting authorities on the point.

At paragraph 77 he stated: The problem with the language of s. 719(3.1) is that the circumstances a court may properly take into account are not defined specifically or even generally. The courts are left to discern what Parliament intended. In my opinion, an

interpretation that is in accord with the legislative framework is the correct one, unless some other conclusion is dictated by other interpretative considerations. Beveridge J.A. at paragraph 75, concluded that precluding the loss of earned remission from consideration under subsections 719(3) - (3.1) would violate the principle of proportionality which

section 718.1 of the Criminal Code identifies as the fundamental principle of sentencing. At paragraph 76, Beveridge J.A. adopted the reasoning of Cozens C.J. in R. v. Vittrekwa , 2011 YKTC 64 , 88 C.R. (6th) 237 (YKTC), in this regard, who stated: 56 A simple example where the unavailability of enhanced credit based upon the loss of remission contravenes the fundamental purpose and principles of sentencing is as follows: Two male offenders of approximately the same age, education and criminal history jointly commit a serious offence with the same degree of involvement and culpability.

One offender is released on bail due to having a residence, family support and the ability to offer significant cash bail. The other offender is detained due to an inability to offer up the same assurances to the court. A year passes before the matter comes to trial, findings of guilt are made and sentence pronounced. A fit sentence for both offenders is determined to be 18 months.

Assuming each offender earns full remission, which is usually the case in the Yukon and seems also to be the case in those jurisdictions referred to in Johnson , the offender who was released on bail will serve 12 of these months in custody before being released due to statutory remission. In contrast, the offender who was denied bail will receive 12 months credit for the 12 months spent in remand. He will have to serve four more months in custody before being eligible for statutory release. The offender who did not secure bail will have served a total of 16 months in jail on an 18 month sentence.

The other offender will have served 12 months. 57 Such a result offends the sentencing principles of proportionality in s. 718.1 and of similarity in 718.2(b). It also offends the principle of restraint set out in ss. 718.2(

d) and (e), to the extent that the offender serving 16 months in custody, by comparison, has been in custody for four more months than was considered appropriate for the offence, assuming that the 12 months in custody his co-accused served was appropriate. This effectively imposes four more months of actual jail time for no justifiable juridical reason. [ 29 ] Carvery is supported by R. v. Stonefish 2012 MBCA 116 , 295 C.C.C. (3d) 52, R. v. Summers 2013 ONCA 147 , 114 O.R. (3d) 641 and R. v. Johnson , 2013 ABCA 190 .

They agreed that the sentencing judge may, without exceptional circumstances, consider the loss of earned remission in addressing whether to grant enhanced credit for remand. They held, however, that the offender bore an onus

to introduce evidence justifying enhanced credit either by showing that he or she would have earned remission if not on remand or that the conditions on remand were harsh. Stonefish at paragraphs 91-94 ; Summers at paragraph 117 ; Johnson , at paragraphs 29-30 .

In the present case the sentencing judge had evidence on this point. [ 30 ] As earlier noted, the trial judge in the present case followed his earlier decision in Myers , where he stated: “There is nothing in Myers’ record to suggest that he misbehaved in prison in the past so badly that he would not normally get the usual one-third remission of the sentence”. In fact, the trial judge had evidence before him that Mr. Cluney had benefited from earned remission while serving time for an earlier offence during the period he was on remand for the charge in the present case.

This is sufficient to establish that he probably would have also earned remission here if not on remand and thereby meets the onus of showing that “the circumstances justify” enchanced credit, in the words of subsection 719(3.1) . [ 31 ] Since the hearing I have seen R. v. Bradbury , 2013 BCCA 280 , which disagreed with the Carvery

interpretation of subsections 719(3) and 719(3.1). With respect, I prefer the reasoning in Carvery and the dissenting reasons of Prowse J.A. in Bradbury . I agree with Beveridge J.A. that the denial of the loss of earned remission as a consideration under subsections 719(3) - (3.1) would cause disproportionate sentences, a consequence that Parliament would not have intended because the fundamental principle of sentencing prohibits it. [ 32 ] I conclude the trial judge made no error in allowing enhanced 1.5 for 1 credit for time spent by Mr. Cluney in remand.

SUMMARY AND DISPOSITION [ 33 ] (

i) The trial judge did not err in sentencing by considering the conduct of the deceased as a mitigating factor. (ii) The six-month sentence is demonstrably unfit and should be increased to two years less a day in total plus three years probation and a two year driving prohibition, the probation terms to be as otherwise set out by the trial judge and, applying the principle of totality, the one month sentence for each breach of probation to run concurrent with the sentence on the impaired driving causing death offence. (iii) The trial judge made no error in allowing 1.5 to 1 enhanced credit for time spent in remand, for a total credit of 377 days. (iv) Leave to appeal is granted, the appeal is allowed and the sentence varied as noted above. ______________________________ L.

D. Barry J.A. I Concur: ___________________________ M. H. Rowe J.A. I Concur: ___________________________ C. W. White J.A. Date: 20130703 Docket: 12/48 Citation: R. v. Cluney , 2013 NLCA 46 err 1 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : NAYTHAN CLUNEY RESPONDENT

Coram: Rowe, Barry and White JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Happy Valley Appeal Heard: June 5, 2013 Judgment Rendered: July 3, 2013 Reasons for Judgment by Barry J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Robin Fowler Counsel for the Respondent: Derek Hogan CORRIGENDUM [ 34 ] In paragraph [11], in line 5, “significant causation” should read “sufficient causation”. [ 35 ] In paragraph [33(ii)], line 6, “probation” should read “undertaking”. ______________________________ L. D. Barry J.A. I Concur: _________________________________ M. H. Rowe J.A. I Concur: _________________________________ C. W. White J.A.