R.v. MacDonald, 2019 NSSC 83

SUPREME COURT OF Nova Scotia Citation: R.v. MacDonald , 2019 NSSC 83 Date: 20190130 Docket: CRH 474180 Registry: Halifax Between: Her Majesty the Queen v. Brian James MacDonald SENTENCING DECISION Judge: The Honourable Justice Christa M. Brothers Oral Decision: January 30, 2019, in Halifax, Nova Scotia Final Written March 12, 2019 Counsel: Melanie Perry, for the Crown Colin Coady & Brittany Deveau, Articled Clerk, for the Defendant Overview [ 1 ] This is a sentencing decision. The offender pleaded guilty to several counts of dangerous operation of a motor vehicle, causing death and bodily harm.

Before outlining the factors I have considered, reviewing the law and ultimately providing the sentence I consider to be fit and proper, I want to contextualize my decision. [ 2 ] The law is an inadequate instrument in these circumstances. No sentence I impose on Mr. MacDonald will either rectify his thoughtless decision, bring back Paul Marchbank and Matthew Ryan or erase Neil Livingstone’s injuries. The sentence I impose in no way is meant to reflect the value of Paul Marchbank’s or Matthew Ryan’s life. No sentence, no matter how long, can reflect those men’s value to their family, friends, and this community.

I can only impose a sentence on Mr. MacDonald, within the confines of our law, to denounce, deter, and hopefully encourage rehabilitation. I suspect no sentence I impose will satisfy the families who were present in the Court or the family members and friends affected by the senseless, impetuous and thoughtless actions of Mr. MacDonald. No sentence I impose will assuage their intense pain and sense of loss. I thank those family members who attended this sentencing, while acknowledging that they could not be made whole, and could not likely receive any satisfaction from these proceedings.

Circumstances of the Offence [ 3 ] On November 15, 2018, Brian James MacDonald entered guilty pleas to: 1. Operating a motor vehicle in a manner dangerous to the public and thereby caused the death of Matthew Ryan – contrary to s. 249(4) of the Criminal Code ; 2. Operating a motor vehicle in a manner dangerous to the public and thereby caused the death of Paul Marchbank – contrary to s. 249(4) of the Criminal Code ; and, 3.

Operating a motor vehicle in a manner dangerous to the public having regard to all the circumstances, and thereby causing bodily harm to Neil Livingstone – contrary to s. 249(3) of the Criminal Code . [ 4 ] There was an agreement on the facts that bring Mr. MacDonald before the Court. The following are the facts: • On October 2, 2017, at approximately 8:30 p.m., Brian MacDonald went to Dooley’s bar in Lower Sackville. Prior to going to the bar, he smoked a joint of marijuana and, while at Dooley’s he consumed two or three beer. Mr.

MacDonald was at Dooley’s with colleagues from work, including his father. • Just prior to midnight, Mr. MacDonald left Dooley’s driving his 2009 Honda Civic with Paul Marchbank, Neil Livingstone and Matthew Ryan as passengers in his vehicle. Paul Marchbank was sitting in the front passenger’s side seat, Neil Livingstone in the back drivers side seat, and Matthew Ryan in the back passenger’s side seat. The passengers began teasing Mr. MacDonald about his driving. The offender himself made a reference that he was being “…driving Miss Daisy…,” referring to the slow speed at which he was

driving. With his passengers criticizing his driving, at a little after midnight on October 3, 2017, the offender decided to show off by speeding up. He was entering a curve in the road near 103 Hillside Drive in Lower Sackville. Mr. MacDonald was unaware that there was a moving truck parked on the road after the curve. Having come too fast around the curve, and unable to control the vehicle, the offender hit the parked truck with such force that it moved the 3700 kg vehicle approximately ten metres off the roadway and up onto the sidewalk. • After the collision, Mr.

MacDonald got out of the vehicle and ran to his father’s house to get help. His father’s residence was located one street over from the collision. Witnesses on scene called 911, and the police located Mr. MacDonald a short time later. At this time, the police noted a strong odour of liquor on his breath, and bloodshot eyes. As a result, the offender was initially placed under arrest for impaired driving. At the police station, within two hours of the accident, he provided two samples of his breath, both of which registered a blood alcohol content of 50 mg of alcohol per 100 ml of blood.

He also admitted fault for the accident, saying repeatedly that it was “100% [his] fault” and that it was “pure stupidity.” He told police about what happened in the vehicle prior to the collision. • Approximately one hour after the collision, Sergeant Chris Romanchych (“Sgt. Romanchych”), a Collision Reconstructionist, attended the scene. He noted that it was a clear night, with dry roads and there were overhead lamps providing artificial lighting throughout the curve. He determined that prior to the accident, Mr. MacDonald’s vehicle was travelling at least 106 km/hr; the speed limit in that area is 50 km/hr.

Sgt. Romanchych determined that the cause of this accident was excessive speed combined with unsafe and aggressive driving. • Paul Marchbank and Matthew Ryan died on October 3, 2017, at the scene of the collision. At the time of their deaths, Paul Marchbank was 48 years old and Matthew Ryan was 42 years old. Neil Livingstone was taken to the hospital, where he was treated for a broken neck, a brain bleed and a laceration on his scalp that required 20 staples plus stiches to repair. After the collision, Mr. Livingstone continued to suffer short term memory loss. At the time of the collision, he was 25 years old.

The offender, who was 26 years old at the time, was uninjured. Agreements of Counsel [ 5 ] Having read the briefs submitted by counsel and having heard counsel’s oral submissions, it is clear much of this sentencing hearing is uncontested. There is in large part agreement on aggravating and mitigating factors. There is agreement that the sentence imposed on the three changes should be concurrent.

There is agreement that a period of incarceration in a federal institution is required. [ 6 ] Defence counsel, during oral argument, raised the possibility that the Court might consider less than a two-year term of incarceration and impose probation.

This was not canvassed in the briefs and was offered as an alternative in oral submissions, albeit only briefly mentioned. [ 7 ] In relation to the charge pursuant to s. 249(3) - dangerous driving causing bodily harm, there is agreement on a term of 12 months incarceration to be served concurrently with the term imposed for the two offences contrary to section 249(4) , dangerous driving causing death. [ 8 ] There is also agreement on the ancillary orders, which are: 1. A DNA Order pursuant to ss. 487.051 and 487.052 of the Criminal Code ; and 2.

A firearm prohibition pursuant to s.109 of the Criminal Code for a period of ten years. Positions of the Parties Crown [ 9 ] The Crown argues for the following sentence to be imposed on Mr. MacDonald: 1. For the offence of dangerous driving causing death, a period of incarceration of 36 months for both counts to run concurrently; and, 2.

For the offence of dangerous driving causing bodily harm, a period of incarceration of 12 months to be served concurrently. [ 10 ] The Crown argues that the fundamental sentencing principles at play are denunciation and deterrence – that is, general deterrence more so than specific deterrence in this case.

While specific deterrence is a component to consider in fashioning a fit sentence, the Crown says general deterrence is the more important factor. [ 11 ] The Crown submitted there is a wide range of sentences for these types of cases and a fit and appropriate sentence is heavily dependent on circumstances of each individual case. [ 12 ] The Crown submits three cases for the Courts consideration and argues these cases support a sentence of three years imprisonment in a federal institution.

In addition, the Crown argues that the Court should impose an eight-year driving prohibition to commence as soon as the sentence is imposed. Defence [ 13 ] The defence submits that the appropriate sentence for the charges is a term of imprisonment of two years plus one day. The

breakdown for this is: 1. The first count of dangerous driving causing death of Matthew Ryan: two years and one day; 2. The second count of dangerous driving causing the death of Paul Marchbank: two years and one day, served concurrently; 3. The third count of dangerous causing bodily harm to Neil Livingstone: one year to be served concurrently; and, 4. A five-year driving prohibition to commence as soon as Mr.

MacDonald is released from prison. [ 14 ] The defence submitted some 19 cases for consideration which I have thoroughly reviewed. [ 15 ] Like the Crown, the defence maintains there is a broad range of sentences for such offences. It comes down to the circumstances of the offender, and the aggravating and mitigating factors.

The defence submits in relation to similar cases the range of sentences is between two to four years’ imprisonment. [ 16 ] While the defence accepts denunciation and deterrence are applicable sentencing principles in this case, the defence also asks the court to look at the specific offender, Mr. MacDonald, and consider his rehabilitation prospects. In addition, the defence argues principles of proportionality, parity and totality. [ 17 ] Neither the defence nor the Crown’s position in this case is wrong in law. Whether the sentence is two years plus a day or three years is not wrong.

In addition, neither submission is likely acceptable to the victims or their families. Again, the law is an inadequate tool in these tragic circumstances. Circumstances of the Offender [ 18 ] The Crown and defence seemingly agreed on many of the relevant circumstances in relation to Mr. MacDonald. [ 19 ] Mr. MacDonald has no criminal record. He comes before this court as a first time offender. The Pre-Sentence Report reviews Mr. MacDonald’s family background. He has the full support of his family. He has a supportive mother and father.

Their support will be an important part of his reintegration into society and his rehabilitation. I encourage Mr. MacDonald to take all of the support they are willing to provide to assist him to build his future after serving his sentence. [ 20 ] The probation officer who authored the Pre-Sentence Report also noted that Mr. MacDonald exhibited a tremendous amount of remorse when speaking about the consequences of the offences. I accept this. Aggravating Factors [ 21 ] The relevant aggravating factors in this case are as follows: 1. Mr. MacDonald’s speed on October 3, 2018.

He was travelling over 50 km/h in excess of the posted speed limit, travelling at least 106 km/hr in a 50 km/hr zone. He was driving over two times the legal speed limit at the time of this offence; 2. He drove in an unsafe manner; 3. He was driving in a residential area, where families and children reside and expect they will be safe from such hazards; 4. He has two speeding convictions and two convictions for operating an unregistered vehicle. His speeding convictions were committed on October 9, 2016, and February 28, 2016. The two convictions for operating an unregistered vehicle were in 2011 and 2015.

I am troubled by the speeding convictions and how close in time they are to the dangerous driving offences, only a year and a year and a half earlier; and, 5. He had consumed marijuana and alcohol on the day of the accident. While he was not above the legal limit and there are no charges or convictions relating to impaired driving, he did consume marijuana before going to the bar and consumed two to three drinks at the bar. Mitigating Factors [ 22 ] The following mitigating factors are present and have been considered. 1. Mr. MacDonald is a first-time offender. This is important. This is Mr.

MacDonald’s first time being sentenced to a period of incarceration. This is relevant; 2. Mr. MacDonald pleaded guilty to these offences fairly quickly and spared the families of the deceased and the injured passenger having to go through a trial on these issues; 3. Mr. MacDonald is relatively young. He was 26 years old at the time of the offence; 4. Mr. MacDonald seems to have very high prospects of rehabilitation; and, 5. Mr. MacDonald has expressed sincere remorse consistently since the evening of the offence and is taking responsibility for his actions. Mr. MacDonald expressed true remorse for his actions.

He showed some insight when he said to “apologize is not enough” and, “no words [he could] piece together could fill the families’ void”. He acknowledged the pain he caused. He has also expressed

shame at his actions. It struck me that he has some insight into the level of pain and trauma he caused these families by his decision on October 3, 2017. Victim Impact Statements [ 23 ] The Court has received four Victim Impact Statements from the family of Mr. Marchbank. I inquired of the Crown whether reasonable opportunities were presented to the Ryan family and to Mr. Livingstone and his family to provide Victim Impact Statements.

I have been satisfied that those opportunities have been provided and accept those victims have chosen not to participate in this process, which is certainly their choice. [ 24 ] Crown counsel read into the record three of the Victim Impact Statements. [ 25 ] Mr. Marchbank’s children have had profound consequences. As one would expect, his young grandchildren miss him. His wife has been profoundly affected by the loss of her husband. [ 26 ] Jodi MacWilliams, Mr. Marchbank’s sister, courageously read her Victim Impact Statement in court. I thank her and commend her for having the fortitude to do so. Ms.

MacWilliams communicated what kind of person and brother Paul was. [ 27 ] These statements certainly bring into sharp focus the enduring impact, pain, and suffering this has had on the family of Mr. Marchbank. [ 28 ] Ms. MacWlliams said in her VIS: “I just want one more chance to see him smile, hear him laugh, or tell him I love him”. [ 29 ] No matter what I say today or what sentence is imposed, I suspect I will not be able to provide any comfort to Ms. MacWilliams, or any family members for that matter. As Ms. MacWilliams said, “No matter what happens here today it won’t bring Paul back”. How very true.

Sentencing Principles & Analysis [ 30 ] The maximum penalty for a charge under s. 249(3) of the Criminal Code is ten years imprisonment and the maximum penalty under s. 249(4) is 14 years. A conditional sentence is not available.

Applicable Principles [ 31 ] The general purpose and principles of sentencing are found in s. 718 of the Criminal Code , which state: Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 32 ] The sentencing exercise involves a balancing of the objectives set out in this section. [ 33 ]

Section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 identifies specific sentencing principles which must be considered, including the following: 1. The sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2(a)); 2. The sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances (s. 718.2(b)); 3. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)); and, 4.

All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[34] Any sentencing hearing requires a careful consideration of the unique circumstances of each offender and the offence. Itrequires the balancing of sentencing objectives. Deterrence, Denunciation, Rehabilitation and Proportionality [35] These important principles are at the heart of the sentencing process. Denunciation and deterrence emphasize society’s interestin protecting the public by imposing appropriate punishment for criminal conduct. The focus is on the nature of the offence and less onthe individual offender.

The exception is the principle of specific deterrence, which has the goal of ensuring that the particular offenderbefore the Court is discouraged from repeating their criminal behaviour. In this matter, the primary objective in imposing a sentence forthe offence of dangerous driving must be protection of the public with an emphasis on general deterrence. All agree the principle ofspecific deterrence is not a significant factor for this offender. [36] Rehabilitation requires the Court to consider the individual offender and what options may be available to maximize thelikelihood that they can be rehabilitated.

It is generally accepted that imprisonment is not an effective tool for rehabilitation. [37] In some sentencing hearings the objectives of deterrence, denunciation, and rehabilitation are at odds with each other.Sentencing requires the Court to strike a balance between the need to demonstrate that criminal behaviour is sanctioned, with the goal ofhelping the offender become a productive member of the community. [38] Proportionality requires the Court to consider the seriousness of the offence and the degree of responsibility of the offender.The sentence must first and foremost fit the specific crime and the specific offender. [39] I cannot characterize these circumstances any better than defence counsel did when he said that this is a senseless tragedy.

Itcertainly is. Two people lost their lives, another was injured, families are suffering, and Mr. MacDonald and his family are suffering aswell. His life is forever changed as a result of his actions. [40] I accept Mr. MacDonald did not intend to harm Mr. Marchbank, Mr. Ryan or Mr. Livingstone. But, as is said often, it is notthe intent but the impact of one’s conduct. [41] I have gleaned from Mr. MacDonald’s Pre-Sentence Report, and from his own words that he is genuinely remorseful. Withoutquestion, he has rehabilitative prospects. [42] I have reviewed the case law submitted by counsel.

I will not refer to all of the cases, but rest assured, I have read andconsidered the application of all of the precedents in reaching my conclusion. As is often the case, no precedent has exactly the samecircumstances, same offender, same consequences, or the same mitigating and aggravating factors. [43] I have reviewed the cases submitted in support of the Crown’s position. The first is R. v. Fitt, 2011 ONCJ 223, which dealswith the sentencing for one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm. Thecircumstances were as follows: 1. Mr.

Fitt was driving 189 in 100km zone; 2. He failed to keep a proper outlook; 3. He had a dated criminal record with three convictions; 4. He had a record of 19 provincial offences convictions for driving offences including falling to stop at an intersection, threeseat belt violations, four convictions for driving without insurance, five licensing violations and 6 speeding violations; 5. He could not explain why he did not see the vehicle he struck from behind that evening; and, 6. Mr. Fitt was 40 years of age. [44] Mr. MacDonald’s circumstances are different.

He does not have the prior convictions and is much younger. [45] I have also reviewed R.v. Boukchev, (2003), (ON CA), 177 O.A.C. 119 (C.A.), for the general commentsconcerning the fact that sentences for dangerous driving causing death have tended to increase in severity over time. [46] R. v. Hodder, (2012), 322 Nfld. & P.E.I.R. 243 (Nfld. Prov. Ct.), is instructive. In this case, the offender sped up to pass avehicle despite being in a non-passing lane. Hodder exceeded the speed limit by 40 km/hr. Hodder struck another vehicle causing it toenter a pond. A passenger drowned, and another was injured.

The offender had a criminal record – albeit unrelated and not lengthy. Healso had three convictions for speeding. He was a youthful offender who pleaded guilty and took responsibility for his actions. Hereceived a period of incarceration of 30 months and a five-year driving prohibition. There are some similarities to this matter althoughthere was an additional conviction for speeding not present in the matter before me. [47] R. v. Delorey, 2011 NSSC 319, a decision of Justice MacDougall of this court, is a relevant precedent.

In that case, as a resultof excessive speed, the offender caused an accident resulting in the death of one passenger and bodily harm to another. In addition, theoffender had alcohol in his blood at the time of the accident. Unlike Mr. MacDonald, Mr. Delorey was not remorseful and refused toaccept responsibility. The offender also had a prior and post-offence criminal record, including a conviction for operating a motorvehicle with in excess of 80 milligrams of alcohol in 100 millilitres of blood. This is aggravating and not present in the matter beforeme.

In that case, the court imposed 26 months incarceration for the offence contrary to s. 249(4) and a four-month consecutive sentencefor the offence contrary to 249(3) for a total of 30 months incarceration. In addition, a five-year driving prohibition was imposedcommencing of release from prison. [48] I have also read and considered all of the defence cases submitted which included two of the cases submitted by the Crown.

[ 49 ] R. v. Taylor , (2012), 326 Nfld. & P.E.I. R. 134 (Nfld. Prov. Ct.) , is instructive. In this case a sentence of 22 months and an eight-year driving prohibition for dangerous driving causing death was imposed where the offender engaged in prolonged and excessive speeding and erratically drove onto a sidewalk, striking a pedestrian. In addition, the offender tested positive for benzodiazepine and marijuana. He had four prior driving convictions and all offences involved alcohol-impaired driving.

In this case, due to the offender’s mental illness, the court reduced what would have been a sentence in the range of 30-32 months to 26 months, less remand. [ 50 ] In R. v. Galley , [2006] O.J. No. 1845 (Ont. Sup.Ct. J.) , although not completely similar, the court would have imposed a term of 30 months but reduced that by two months to take into account the stringent presentence bail conditions. In addition, a five-year driving prohibition was ordered. In this case, the offender pleaded guilty to one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm.

The offender failed to remain at the scene, his car was uninsured, he had prior traffic offences, and he was found guilty of another count of dangerous driving and was awaiting sentencing when these offences were committed. [ 51 ] I have also considered R. v. Singh , 2010 ONSC 3398 , which is similar on the facts, albeit the resulting consequences were less. [ 52 ] The defence has provided several cases where the sentence for dangerous driving causing death has been a two year sentence. Many of those are from Ontario and other provinces. Some are dated.

While all cases are unique and fact specific, these cases have been helpful. Conclusion [ 53 ] In determining the appropriate sentence in this case, I have considered the nature of the offence, the circumstances in which the offence was committed, the mitigating and aggravating facts, and the circumstances of the offender. I have considered that this offence resulted in the loss of two lives, and the bodily harm occasioned to another. [ 54 ] A sentence must reflect the nature of the harm caused. Real people suffer and live without their loved ones because of such driving offences.

This is a true crime which has caused serious and lifetime harm and suffering to the families involved. In short, their lives will never be the same. [ 55 ] This was an unnecessary and totally preventable offence. I am mindful that I am sentencing Mr. MacDonald to a first custodial term in a penitentiary and he is a first-time offender. Given his age and background, I do take into account, and bear in mind, his rehabilitation prospects. [ 56 ] I have heard the remorse in his voice and appreciate that he certainly did not intend to cause the significant consequences that he did to Mr. Marchbank, Mr. Ryan, Mr.

Livingstone and their families. [ 57 ] On the first count, operating a motor vehicle in a manner dangerous to the public and thereby causing the death of Matthew Ryan – contrary to s. 249(4) of the Criminal Code : I sentence Mr. MacDonald to a period of incarceration of 28 months. [ 58 ] On the second count, operating a motor vehicle in a manner dangerous to the public and thereby causing the death of Paul Marchbank – contrary to s. 249(4) of the Criminal Code : I sentence Mr.

MacDonald to a period of incarceration of 28 months to be served concurrently. [ 59 ] On the third count, operating a motor vehicle in a manner dangerous to the public having regard to all the circumstances, and thereby causing bodily harm to Neil Livingstone – contrary to s. 249(3) of the Criminal Code : I sentence Mr. MacDonald to a period of incarceration of 12 months to be served concurrently. Driving prohibition [ 60 ] The Crown has asked for an eight-year driving prohibition. The Defence has argued for a five-year driving prohibition. [ 61 ] Driving is a privilege not a right.

Given the harm occasioned by Mr. MacDonald’s actions, I conclude a driving prohibition is necessary in the circumstances. A lengthy driving prohibition is a more meaningful way to promote deterrence and denunciation. [ 62 ] I accept the Crown’s submissions and order a driving prohibition under s. 259 of the Criminal Code for a period of eight years to begin immediately. Ancillary Orders [ 63 ] I have also signed both of the agreed upon ancillary orders, Brothers, J.