R. v. Dunbar, 2019 NSSC 96

SUPREME COURT OF Nova Scotia Citation: R. v. Dunbar , 2019 NSSC 96 Date: 20190322 Docket: CRH 482331 Registry: Halifax Between: Her Majesty the Queen v. Kathy Marie Dunbar Judge: The Honourable Justice D. Timothy Gabriel Heard: February 25, 2019 and March 22, 2019, in Halifax, Nova Scotia Oral Decision: March 22, 2019 Counsel: Matthew Kennedy, for the Crown (Appellant) Jade Pictou, for the Accused (Respondent) By the Court (Orally): Introduction [ 1 ] On March 17, 2018, Kathy Marie Dunbar, and her co-accused, Rae Lee Giles, shoplifted from the Real Atlantic Superstore.

On May 31, 2018, Giles pleaded guilty to one count of theft and two counts of breaching probation. She was sentenced in Dartmouth Provincial Court on August 23, 2018, to a period of incarceration of 90 days to be served in the community pursuant to

section 742.1 of the Criminal Code , and also a 12 month probation order on various terms and conditions. [ 2 ] Ms. Dunbar entered a plea of guilty to one count of unlawful possession under $5000.00 contrary to

section 355 (

b) of the Criminal Code on August 13, 2018. She was sentenced on October 17, 2018, to "one day deemed time served by her appearance in court at the sentencing hearing". The Provincial Court Judge who imposed this sentence upon her was the same judge who had sentenced Ms. Giles. [ 3 ] At the time that the accused was sentenced, she possessed 38 previous convictions for property related offences, including 36 which had occurred during the period of time from 2009 to 2017. [ 4 ] In imposing sentence, the sentencing judge referred to the fact that Ms.

Dunbar was in the grip of "extreme addictions", and discussed the many efforts that she had made to better herself. These efforts included involvement with Stepping Stone, Mobile Outreach Street Health, and Mainline. In her counsel’s submissions, it had also been emphasized that Ms. Dunbar has completed approximately 11 different programs, all the while seeing a dietitian and caring for an ailing brother. [ 5 ] The Crown has appealed the sentence. It contends that the Respondent had spent no time whatsoever in pre-sentence custody and, therefore, could not be "deemed" to have served any time at all.

It also argues that the sentencing judge failed to consider (as aggravating) the Respondent's prior record for the same or similar offences, contrary to

section 718.2 (

a) of the Criminal Code , by failing to consider the parity principle set forth in

section 718.2 (b), and (finally) by failing to properly consider the objectives of denunciation and deterrence in imposing the sentence. Background [ 6 ] Most of the evidence with respect to Ms. Dunbar's background was furnished by the Pre-Sentence Report prepared in advance of her sentencing. Without question, she has lived a harrowing life. [ 7 ] To begin with, she is a 51-year-old lady with a grade eight education. She was born in Charlottetown, Prince Edward Island.

Both of her parents are now deceased. [ 8 ] She has two sisters, with whom she shares limited contact, and a brother residing in Halifax who is in ill health. She advised the author of the report that she and her brother are working with the Mobile Outreach Street Health to obtain an apartment together so that she may become her brother's permanent caregiver, as she is concerned that he can no longer manage on his own.

[ 9 ] Growing up, her parents' relationship was a stormy one, and she witnessed a significant amount of fighting and alcohol abuse (in her words) prior to her parents’ separation which occurred when she was 4 years old. She was eventually removed from her parents’ care within a year, and she entered the foster care system. While placed in a foster home, Ms. Dunbar recalled that she was a victim of physical abuse within the home, and sexual abuse by a member of the community.

She moved from there to a group home at the age of 13, before attending an all-girls reform school where she experienced what she described as emotional abuse. [ 10 ] At the age of 15 years, she moved in with her boyfriend. She describes that relationship as an emotionally and physically abusive one. She acknowledged that both parties abused substances. [ 11 ] At the age of 19, she ended this relationship and returned to live with her biological mother. This reunion lasted for approximately four years.

She incurred a period of federal custody, and was released at the age of 24, returning with her mother before entering into another relationship. She described physical abuse at the hands of this partner as well, and then moved out of the province to reside for a period of 10 years with her third partner. This gentleman passed away as a result of HIV.

On the heels of this she learned that her biological mother had been diagnosed with cancer and she returned to the province to care for her mother, who is since deceased. [ 12 ] She is currently unemployed, and is exposed to not only economic pressure, but also housing pressure. An apartment building in which she resided on Dawn Street in Halifax was condemned, resulting in a five month stay at Adsum House, before she was able to secure another apartment in the Fairview area. The latter situation came to a conclusion when she developed a poor relationship with her landlord.

She currently resides with a friend until she can obtain an apartment which will enable her to care for her sick brother. [ 13 ] As far as education goes, she completed her grade 8 at J.L. Ilsley Junior High School in 1981. She described her schooling as "difficult", but also forthrightly acknowledged a lack of concentration and patience on her part.

She referred to "numerous occasions" involving suspensions for drinking, using drugs and absenteeism. [ 14 ] She currently receives income assistance from the Department of Community Services and had been employed, at the time of her sentencing on October 17, 2018, at Slingin' Ink, a tattoo parlour where she cleaned several days a week. She received a monthly income (at the time) of approximately $1200.00 in the form of income assistance benefits, and $250.00-$300.00 for her work at the tattoo shop. [ 15 ] In terms of her health, Ms.

Dunbar describes herself as "okay", but does have some chronic health issues including arthritis, diabetes, epilepsy and hepatitis C. She has also struggled with anorexia for the past 15 years and is on a variety of medications to deal with these ailments, as well as to deal with ADHD and bipolar disorders. She has reached out to such associations as Stepping Stone and the Elizabeth Fry Society, as well as those earlier mentioned, which includes the Mobile Outreach Street Health. [ 16 ] With respect to her addictions, the author of the presentence report noted: In discussing her substance use/abuse, Ms.

Dunbar reported she began using substances during her teen years. She advised while living in Ontario she stopped using drugs for approximately 8-years, however started abusing alcohol. Following the death of her partner Mr. Bisser, the offender advised she returned to using crack cocaine and continues to struggle with her use of the substance. Ms. Dunbar stated she tries to refrain from using substances, but advised she recently went on a “two week mess up” using crack cocaine and drinking daily. She reported “everything just got to me,” with respect to her brother, Ms.

Rector and lack of housing, prompting her to use. At the time of the Pre-sentence Report interview, the offender reported no substance use for a two-week period, stating she can go extended periods of time without using and does not consume alcohol often. Ms. Dunbar advised she does not find attending Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) helpful, stating “it sets me off worse.” The offender acknowledged the correlation between her substance use and conflict with the law, stating she has experienced substance abuse issues since she was a teenager.

She reported cleaning keeps her busy and helps her to avoid using substances, as well as accessing support through community organizations such as Stepping Stone, Mainline and the Elizabeth Fry Society. Ms.

Dunbar stated that she believes securing stable housing with her brother and caring for him while working, will keep her busy and away from further conflict with the Criminal Justice System. ( Pre-Sentence Report, pp. 4-5) [ 17 ] Both Linda Grandy (Court and Correction Support Worker with Stepping Stone) and Carrie MacInnis (Transition Program Coordinator with Stepping Stone) provided additional information to the author of the Pre-Sentence Report with respect to the accused. [ 18 ] For example, the latter advised that: … over the past year and a half Ms.

Dunbar has completed the Nine Essential Skills Program, Portfolio Development Program (8 sessions), Goal Setting, Action Planning, WHMIS, Mindfulness, Healthy Relationships, Eating on a Budget, Poetry (4 sessions), Legal Rights and Kindness Stones. Ms. MacInnis wrote that Ms. Dunbar is “a joy to have in programs. She is polite and helpful toward other program users. She always has a positive attitude and is eager to learn.

I believe she benefits greatly from these programs and we benefit from having her participate because of her willingness to share, and her contributions to learning." [ 19 ] Other information available to the author included the fact that the Mobile Outreach Street Health would be prepared to assist her with her plans to live with her brother, and that she has been attending Mainline for approximately 8 years, and has received assistance through their needle exchange program, completion of her income taxes, and advocacy support. [ 20 ] The Respondent is presently serving 87 days imprisonment as a result of the collapse of a Community Supervision Order which was imposed subsequent to the imposition of the sentence which is at issue in this appeal.

Issues

[ 21 ] The following issues are engaged, and I will determine them in my capacity as a

Summary Conviction Appeal Court (SCAC) Judge: 1) Did the sentencing judge err in imposing a one day jail sentence "deemed served" by Ms. Dunbar's appearance in court when Ms. Dunbar was not in custody on October 17, 2018? 2) Did the sentencing judge err by failing to consider relevant sentencing principles and factors including the aggravating factor of Ms. Dunbar's prior convictions, the principle of parity, and the principles of denunciation and deterrence? 3) Is the sentence demonstrably unfit? Analysis 1) Did the sentencing judge err in imposing a one day jail sentence "deemed served" by Ms.

Dunbar's appearance in court when Ms. Dunbar was not in custody on October 17, 2018? [ 22 ] Although the parties have agreed that the standard of review with respect to sentencing is one of reasonableness, they appear to raise an issue of law with respect to the first ground of appeal. The standard of review with respect to an issue of law is correctness. [ 23 ] The Crown has argued that the sentencing judge erred in principle by imposing a jail sentence "deemed served" by Ms. Dunbar's appearance in court. Counsel points to the provisions of

section 719 of the Criminal Code which include: 719.

(1) A sentence commences when it is imposed , except where a relevant enactment otherwise provides. Time at large excluded from term of imprisonment

(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person. Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may 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 . … When time begins to run

(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence. (emphasis added) [ 24 ] The Appellant Crown’s argument proceeds to note that the Defendant was arrested and released with an undertaking given to a police officer and a promise to appear on March 17, 2018, the date of the shoplifting.

Her onus was to attend court on April 24, 2018 at Dartmouth Provincial Court, and to thereafter "attend as required by the court." [ 25 ] Counsel goes on to point out that even a person awaiting sentence under very stringent bail conditions does not receive credit for "time spent in custody". R v. Yue , [2007] ONCA 598 is referenced: 34. On a plain meaning of s. 719(3), time spent in custody may be taken into account by a sentencing judge.

As explained by Arbour J. in Wust at para. 41: "Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)." 35. It is important to note that Arbour J. used the word "detention" in this explanation. This is the same word employed in s. 515 [page10] to describe a person who does not obtain bail; such a person is subject to "detention. . . in custody".

The implication, in my view, is clear: just as s. 515 creates a clear dichotomy between release and detention in custody, so too does s. 719(3) make the same distinction. In determining a sentence, including a minimum sentence, a sentencing judge can take into account "time spent in custody" (s. 719(3)) or "detention" ( Wust ); however, time spent out of custody or not in detention -- i.e., bail -- cannot be counted. [ 26 ] Another case put forward by the Crown in support of its argument is R v. Shea , 1980 CarswellNS 163 (CA) . The circumstances in Shea were succinctly set out therein: 1.

The Respondent was charged with the following offences: (1) unlawful possession of a Sony black and white television set to a value not exceeding $200.00, contrary to s. 313(1) (

b) of the Criminal Code , (2) theft of merchandise of a total value not exceeding $200.00, contrary to s. 294(

b) of the Code, (3) break, enter and theft, contrary to s. 206(1)(

b) of the Code; and (4) break and enter with intent, contrary to s. 307(1)(

a) of the Code. The first of these offences was committed on August 7, 1979, the second on August 16, 1979 and the third and fourth on September 30, 1979. 2. The Respondent appeared before His Honour R.J. McCleave, a Judge of the Provincial Magistrate’s Court, on November 16, 1979 and pleaded guilty to all four offences. Following the pleas of guilty the matter of sentence was adjourned first to December 7, 1979, then to December 21, 1979, then to February 8, 1980, then to March 28, 1980 and finally to June 12, 1980. On this last day Judge McCleave sentenced the Respondent for the offence under s. 313(1) (

b) and the offence under s. 294(

b) to one month’s imprisonment for

each offence “considered served”. With respect to the third and fourth offences Judge McCleave imposed concurrent suspendedsentences, plus probation for a period of two years with conditions that the accused abstain from the use of alcohol or drugs andapologize to each victim. [27] The Court of Appeal concluded at paragraph 5 of Shea: The first ground of appeal by the Crown is that the sentences of one month “considered served” are illegal and we were referred to a s.649(1) of the Code, which provides that “a sentence commences when it is imposed, except where a relevant enactment otherwiseprovides”.

This ground of appeal must be given effect and these sentences set aside. [28] The Crown concludes its argument with respect to this issue as follows: It is common practice in our provincial courts that sentencing judges will impose a sentence of one day “deemed served” by a person’sappearance in court on the sentencing date – but unless the person being sentenced is actually in custody at that time such a sentence isillegal. Ms. Dunbar spent no time in custody on this matter before being sentenced, nor was she in custody on the day she wassentenced.

As such, no credit was available to be applied and the sentence of “one day” was effectively a non-sentence. (emphasisadded) [29] With respect, this argument overlooks the fact that Shea dealt with the imposition by the court of a sentence of "one month'simprisonment for each offence considered served" (Shea, para. 2) by the accused's appearance in court on the date of sentencing. In myview, this is entirely different from the imposition of a sentence of one day, deemed served by the Appellant's attendance at court thatday.

Among other things, I would observe that it could be argued that such a sentence begins and ends the same day. (See also, and forexample, R. v. Brown, 2010 NSSC 416 - breach of recognizance one day deemed served; R. v. Denny, 2016 NSPC 25 - failure to attend,one day deemed served and fine, paras. 23 and 24; R. v. Isenor, 2014 NSPC 50 - failure to attend, one day deemed served, para. 47.) [30] The following cases, albeit within context other than “one day deemed served”, relate to a larger issue concerning the Court’sability to impose a “time served” sentence (alone) at all. Consider R. v.

Comeau, 2008 NBCA 60 at para. 45: I am unable to simply sentence Ms. Comeau to time served because this sentence is "one that is unsanctioned in law": R. v. Savoie(1994), (NB CA), 152 N.B.R. (2d) 310 (C.A.), [1994] N.B.J. No. 398 (QL). In the circumstances, I would thereforeimpose on Ms. Comeau a sentence of imprisonment of 16.5 weeks and, considering the equivalent time she has served on the originalconviction, I would direct that the execution of the sentence be stayed. The decision of this Court in R. v. Veysey (2006), 303 N.B.R. (2d)290, [2006] N.B.J.

No. 203 (QL), 2006 NBCA 55, sets out the authority by which an appellate court can stay the execution of a sentence.I would make use of it in this case. [31] Next, R. v. Brown, 2014 BCCA 439, at para. 24: First the sentences in relation to the assault causing bodily harm, uttering threats and breach of probation are recorded only as credit fortime served. As we noted in R. v. Coutu (1997), (BC CA), 12 C.R. (5th) 324 at paras. 21-25, 101 B.C.A.C. 241(B.C.C.A.), R. v. Powis, 2007 BCCA 108 at para. 16, and again in R. v.

McDonald, 2012 BCCA 321 at para. 7, it is not open to asentencing judge to impose a sentence of time served alone. [32] Then in R. v. Fazekas, 2009 ONCJ 262 we find: 4. In the result, counsel presented a joint submission that the Court impose a sentence of "time served" in light of 45 days pre-sentencecustody. I asked for submissions on the issue of whether this Court had the authority to in effect antedate sentence. I was referred bycounsel to the 2007 decision of my colleague Justice Duncan, in R. v. Doherty, 2007 ONCJ 396 , [2007] O.J. No. 3363. 5.

I have taken the opportunity to look a little more carefully at the issue. Since the time of Justice Duncan's decision, the SupremeCourt of Canada has addressed related issues in the case of R. v. Mathieu. Based on that decision, not yet available at the time of JusticeDuncan's decision in Doherty, I conclude that a sentence of "time served" is not a lawful sentence. [33] The foregoing are examples of some cases which have followed in the wake of R. v. Mathieu, 2008 SCC 21 , [2008] 1SCR 723, where the court said: 6.

In short, I find that the term of imprisonment in each case is the term imposed by the judge at the time of sentence. The offender'sprior detention is merely one factor taken into account by the judge in determining that sentence. This conclusion is dictated by therelevant provisions of the Criminal Code, including subss. (1) and (3) of s. 719. It is also consistent with the presumption of innocence towhich every accused, even if detained pending trial, is entitled until he or she is convicted. As we will see below, it is consistent as wellwith the sentencing objectives that are relevant here. 7.

Although it is possible, on an exceptional basis, to treat the time spent in pre-sentence custody as part of the term of imprisonmentimposed at the time of sentence -- in the context of a minimum sentence, for example, or of a conditional sentence -- these are exceptionsthat prove the rule. As to minimum sentences, see R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; regarding conditional [page728]sentences, see R. v.

Fice, [2005] 1 S.C.R. 742, 2005 SCC 32. [34] On the contrary, there are cases, including some from this province, in which sentences of time served alone have either beenimposed or attracted little to no comment. Indeed, in R. v. R.E.M., 2011 NSCA 8, which was a motion to extend time for application forleave to appeal, the motion was dismissed without comment on the “time served” sentence imposed. [35] Obviously, the cases do not all deal with identical circumstances. They are not nearly exhaustive either. They are referencedmerely to illustrate the broad sweep of the issue.

It is one that is not necessary for me to decide in any event, particularly in light of thedetermination that I have made in relation to the second and third issues. These latter are the two to which counsel devoted most of theirattention in their briefs and oral arguments.

2) Did the sentencing judge err by failing to consider relevant sentencing principles and factors including the aggravating factor of Ms.Dunbar's prior convictions, the principle of parity, and the principles of denunciation and deterrence? [36] Any consideration of sentencing principles and objectives begins with

section 718 of the Criminal Code which provides: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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. [37] Other sentencing principles include those enshrined in

section 718.2, the relevant portions of which tell us that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [38] Subparagraph (

b) above is often referred to as the “parity” principle. However, it does not detract from the proposition thatsentencing is an individual process, and that: "sentences for particular offences should be expected to vary to some degree across various communities and regions in this country, asthe "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particularcommunity where the crime occurred". (Per R. v.

M.(CA), (SCC), [1996] 1 SCR 500 [39] As befits a “reasonableness” standard of review, there is a measure of deference owed to the balancing of the factors andprinciples that are in play, as carried out by the sentencing judge, when an appellate court is asked to intervene [40] In carrying out this balancing, one of the things which may be considered and weighed is the sentence which was imposedupon the co-accused for the same offence.

There should be some broad conformity, unless different treatment is warranted in view ofmaterially different circumstances, which did not impinge upon the sentence of the co-accused (R. v. Chisholm (1985), (NS CA), 18 CCC (3D) 518 (NSSC. App. DIV); R. v. Fait (1982), 1982 ABCA 148 , 68 CCC (2D) 367 (Alta. C. A.)). [41] Moving on, the principles discussed in 718.2(

d) and (

e) are subsumed by one word: restraint. They are intended to be remedial

provisions, and as a general proposition they apply to all offenders. Imprisonment should be a last resort. Indeed, even in circumstanceswhere restorative or rehabilitative objectives cannot be easily realized, a conditional sentence may still be favoured where it may achievethe objects of denunciation and deterrence as effectively as incarceration (see R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61, forexample). [42] The foregoing is not even close to an exhaustive review of all of the principles that are applicable, and which must be at leastconsidered, in this case.

For example, integrally related to the considerations above is the frequency with which an offender repeats aparticular offence. This is often recognized as an aggravating factor under s. 718.2(a). [43] The "step principle" can be related to this. It is often invoked where an accused’s criminal record shows repeated relatedcriminal conduct. However, these two considerations are not simply a method of punishing an offender all over again for past criminalconduct.

They involve a determination of whether this prior related conduct should warrant a stricter sentence in the case at bar becauseearlier sentences have not been sufficient to deter this type of conduct (for example, see R. v. Wright (2010), 2010 MBCA 80 ,261 CCC (3d) 333 (Man. CA)). [44] All sentencing principles and objectives, however, must be considered holistically, and in conjunction with all of the knowncircumstances of the offender.

At the end of the process, the paramount consideration is always: "what should this offender receive forthis offence, committed in the circumstances under which it was committed?" (R. v. Sears (1978), (ON CA), 39 CCC(2D) 199 (Ont. C. A.) [45] In this case, the same sentencing judge was involved both with respect to the Respondent and her co-accused. The onlydifference was that, of the charges facing the co-accused, Ms. Giles pled guilty to theft under $5000.00 (the first count) as well to twobreaches of probation contrary to

section 733.1(1)(

a) of the Criminal Code. The Respondent, Ms. Dunbar, pled guilty to the secondcount, that of possession of stolen merchandise of a total value not exceeding $5000.00, knowing that it was obtained by the commissionin Canada of an indictable offence (theft) contrary to

section 355(

b) of the Criminal Code. All charges resulted from identical actions onthe part of the Respondent and her co-accused on the same date at the same place and time. [46] Ms. Giles, the Respondent’s co-accused, would have been the subject of a jointly recommended period of incarceration by theCrown and defence. However, the sentencing judge did not follow the joint recommendation, and sentenced her to a 90 day conditionalsentence, and a probationary term, instead. [47] That Ms.

Giles’ disposition was considered by the sentencing judge when she sentenced the Respondent, in the case at bar, isreflected in her comments: “I didn’t follow the joint recommendation for jail for her co-accused either because I recognized that both have extreme addictions”. (Appeal Book, p. 11, ll. 10-12) [48] It is also apparent that the sentencing judge was aware that Ms. Dunbar's record included 36 related convictions covering aspan of 2009 to 2017, with no appreciable gap in between.

This was reflected in the Accused’s Pre-Sentence Report. [49] The three most recent sentences received by the Respondent (prior to October 18, 2018) follow: • In July 2017, Ms. Dunbar was sentenced for one count of theft and received a sentence of 90 days’ incarceration to be served in thecommunity as a conditional sentence. • In January 2017, Ms.

Dunbar was sentenced for two counts of theft and two counts of breaching probation; she received a 90-dayconditional sentence order. • In January 2016, she was sentenced for three counts of theft and four breaches of court orders; she received a global sentence of 90days’ jail to be served intermittently. (Appellant’s brief p. 13) [50] After discussing the sentence imposed upon Ms. Giles, the Crown made the following oral submissions as to the sentencewhich it was felt that the Respondent should receive: So the Crown was having a bit of a quandary, Your Honour.

We first were going to suggest a period of 90 days’ jail to be followed byprobation. Then I noted what the co-accused had received in this case, which was a 90-day conditional sentence order and havingreviewed the PSR, Your Honour, I was prepared to come to court this afternoon and make a recommendation for the same sentence. Butthe difficulty that we’ve run into, and I understand that would have been a joint recommendation, difficulty for the Crown, Your Honour,is that I’m aware that Ms. Dunbar has no fixed address, which makes it practically … The Court: Mmm. Mr.

Kennedy: … you know, very difficult or impossible to enforce a conditional sentence order and if those are the circumstances Idon’t think the Crown can …can agree to it. The Court: Uh-uh. Mr. Kennedy: So that’s kind of where I’m left. I mean unless something chances then the Crown would have to ask for a period of jailrather than the conditional sentence order in this case. The conditions of probation that we would have been requesting, or we would request in any case, I’ve put on paper and I’ll pass thoseforward now.

I’ll leave it to my friend to speak to Ms. Dunbar’s circumstances. The Court : So what are you seeking then as a disposition, Mr. Kennedy? Mr. Kennedy : We would seek 60 days in jail, Your Honour to be followed by the 12 months’ probation. The Court: Ms. Pictou? [Emphasis added] ( Appeal Book, Tab 3, pp. 7 – 8 ) [ 51 ] Defence counsel’s submissions included: Ms.

Pictou : … So by all means this may have been a small step back but every time she takes a small step back, she’s taking three forward at the same time because it’s allowing her to take that responsibility and to reach out to these support systems that she has gathered over the years. This isn’t somebody who’s in the system with no support. At this point, it’s somebody who is in the system who doesn’t have a good living condition right now. She’s couch surfing at this point which is troubling if you’re thinking about putting her on CSO … The Court : Ms… Ms. Pictou : Yeah. The Court: … Ms.

Pictou, nobody is going to jail today . Ms. Pictou: No, and that not what I’m requesting. [Emphasis added] (Appellant’s Appeal Book, Tab 3, pp. 10 -11) [ 52 ] Defence counsel requested, in light of the above "one day deemed time served by her appearance here today in court..." Of interest (within the context of the discussion of the first issue) is the fact that she did not suggest the imposition of a sentence of time served alone.

She also suggested the imposition of a probation order "if Your Honor believes it appropriate ..." [ 53 ] The suggested probation order (if considered appropriate) would have included some rehabilitative terms, such as attending mental health treatment and substance abuse treatment providers, other forms of counselling, and not to be in the company of Ms. Giles or within 20 metres of the front door of Portland Street Superstore in Dartmouth.

It would have also included some reporting, and completion of 20 hours of community service. [ 54 ] What the sentencing judge did say when she imposed sentence upon the Respondent follows: J.P.C. (orally): I accept your change of plea to guilty based on the facts that I’ve heard. This is a typical shoplifting scenario and it was motivated by your addiction and I do remember the case of the co-accused and she was …had an addition to drugs, as well, and there was a joint recommenda-…for a jail sentence which I did not think was appropriate in the circumstances. I respect Mr.

Kennedy’s submissions based on the matter and Ms. Pictou’s, I get to make the final decision. Currently from reading your pre-sentence report, you’ve had a difficult upbringing, there’s no doubt, and I’m sure that the addictions have a … are a result of that. But I would also note that you are continuing to do the work to remain clean and sober, dealing with addictions in a life-long struggle, you take it day to day. And in this particular instance, you had a relapse but now you have … back on track, clean and sober and doing what you need to do.

I have to take into consideration the principles of sentencing, not only general deterrence or specific deterrence but rehabilitation. And rehabilitation is key and sometimes other sentences can be used to meet those same principles. And so, having said all that, you’re doing the work that you need to do and I’ve read the commends from E. Fry and from the other workers and I think given all the circumstances, Ms. Dunbar, that the appropriate disposition in the circumstances would be one day in jail considered served by your appearance here in court.

You’ll have to five years to pay the mandatory victim fine surcharge. [Emphasis added] ( Appeal Book, Tab 3, pp 15-16 ) [ 55 ] The sentencing judge continued: So, Ms. Dunbar, there it is.

If you have a seat outside in the lobby, you have to sign the victim fine surcharge and once you sign that you will be free to go, okay? ( Appeal Book, Tab 3, p. 17 ) [ 56 ] Although I have been made aware of the fact that the Respondent is currently serving a period of incarceration as a result of the collapse of a conditional sentence order subsequently imposed, this does not have any impact or effect upon my determination of the

adequacy of the sentence under appeal in the case at bar. [57] I have already made reference to the considerable defence that is due to the sentencing judge’s decision in this case. It is worthrepeating that I do not get to change the sentence imposed merely because I would have done something different. In R. v. Partridge,2005 NSCA 159, Bateman JA, outlined the applicable standard of review and emphasized: 9. In R. v.

Longaphy (J.F.) (2000), 2000 NSCA 136 , 189 N.S.R. (2d) 102 at para. 20 (C.A.), Oland, J.A. summarized thestandard of review, which calls for a high level of deference to sentencing judges: [20] A sentence imposed by a trial judge is entitled to considerable deference from an appellate court. A sentence should only be variedif the appellate court is satisfied that the sentence under review is "clearly unreasonable": R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C. (3d) 193 at pp. 209-210.

Absent an error inprinciple, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene tovary a sentence if the sentence is "demonstrably unfit": R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C. (3d) 327 (S.C.C.) at p. 374. The Supreme Court of Canada reiterated this standard of appellatereview in reviewing a conditional sentence in R. v. Proulx (J.K.D.), 2000 SCC 5 , [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R. (2d) 161; 212 W.A.C. 161; 140 C.C.C. (3d) 449 at § 123-126. 10.

Key to the deference, however, is the absence of error in principle. Where there is error the court’s right to intervene is not limitedto sentences which are found to be “demonstrably unfit” (R. v. MacAdam (2003), 2003 PESCAD 4 , 171 C.C.C. (3d) 449;P.E.I.J. No. 20 (Q.L.) (S.C. (A.D.)); R. v. Rezaie, (1996), (ON CA), 112 C.C.C. (3d) 97; O.J. No. 4468 (Q.L.) (Ont.C.A.); R. v. Gagnon, (1998), (QC CA), 130 C.C.C. (3d) 194; A.Q. No. 2775 (Q.L.)(Que. C.A.) at 198). [Emphasis added] [58] In R. v. L.M., 2008 SCC 31, the majority (per Lebel J.) stated at para. 14: 14.

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be “convinced it is not fit”, that is, “that . . . the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15). This Court also made the following comment in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [Emphasis added] [59] It is clear that the sentencing judge was impressed by the notable efforts of the Respondent as of October 17, 2018 to getcontrol of her life and turn it around. Integral to her comments ancillary to the imposition of sentence was the observation that both theRespondent and her co-accused suffer from "extreme addictions". [60] No doubt the sentencing judge felt that an interruption of the treatment and or the contacts that Ms.

Dunbar has built up overthe years in her attempts to get her life back together, such as that which would be occasioned by a period of incarceration, would becounterproductive to these efforts. In so doing, and with respect, it would appear that she overly emphasized the principles relating to theRespondent's rehabilitation at the expense of those relevant to denunciation and deterrence of the Respondent’s unrelenting and long un-remediated conduct, which is to say, the aggravating feature of her lengthy related record. She erred in principle in doing so. 3) Is the sentence demonstrably unfit? [61] In R. v.

Ryan, 2017 NSCA 32, the court concluded that a global 22 month sentence of imprisonment was not “demonstrablyunfit”. The case involved a “mature serial offender”, who between January 18, 2016 and April 8, 2016, “while on Probation for similaroffences, engaged in a series of thefts of properties each of a value under $5000”. The accused was on bail awaiting sentencing forsimilar offences when some of the thefts occurred. [62] Individually, the theft charges attracted sentences that ranged from 20 days to 90 days imprisonment each. The Court ofAppeal opined: 24.

A review of the appellant’s corrections history shows a progression in terms of more severe penalties. There must, however, come apoint at which a court is satisfied that rehabilitation and deterrence is not working. Once the courts are satisfied an offender cannot berehabilitated or deterred, courts then are forced to look for other ways to protect the public. Specific deterrence and rehabilitation alwaysremain a part of the toolbox. In this case, the appellant’s record and the evidence suggests that the prospects of rehabilitation anddeterrence without incarceration are minimal.

Previous attempts to protect victims have failed. [63] Granted, there are a number of differences between the accused’s situation in this case and that of Ryan. First, we are dealingwith a single offence in this sentencing. Ms. Dunbar has clearly been sentenced for all of her prior offences. [64] Next, I would not conclude that Ms. Dunbar’s prospects of “beating her addictions” bear “little prospect” for success. She hasdemonstrated a grim resolve to try to better herself and control her addictions. [65] In R. v.

Lomond, 1986 Carswell NS 400, the accused received a sentence of 18 months for a single theft of two wedding rings

and a necklace valued at $370 while visiting friends. He did have a record for break and enter, forgery, possession over, and had previously served sentences of 12 and 6 months of imprisonment. [ 66 ] If the above example highlights something toward the higher end of the range to which an offender might be subject for a single theft, I consider the appropriate range sentence in the case at bar to have been a period of imprisonment of 30-90 days, at a minimum, having regard to Ms. Dunbar’s related record and the prior sentences that she has received.

However, I stress that she is not a sophisticated offender, nor is she someone who decided to go on a spree, like the offender in Ryan . [ 67 ] But she has been consistent. The merchants affected by her delicts might choose to use my earlier description, which was “unrelenting”. The sentence imposed of one day deemed served by her appearance in court was demonstrably unfit. Synthesis [ 68 ] It is certainly true that the Respondent is caught in the grip of a terrible addiction. The addiction has been exacerbated by a number of the negative life experiences which she has encountered, many of them very early on.

They have ravaged her life. This court, like the sentencing judge, is not without sympathy for her. [ 69 ] That said, not all people suffering from addictions engage in such a course of conduct, or, if they do, to nearly the same extent as Ms. Dunbar. She has 36 prior convictions for related defences between 2009 and 2017. [ 70 ] As to the more recent sentences, she received in January 2016, a global sentence of 90 days imprisonment for three counts of theft and four breaches of court orders, which she was able to serve intermittently.

One calendar year later she received a 90 day conditional sentence order (“CSO”), to be served in the community, for two counts of theft and two counts of breaching probation, and seven months after that she was sentenced again for one count of theft and received a 90 day CSO to be served in the community. [ 71 ] The prior sentences that have been imposed upon her have not had the desired remedial effect upon Ms.

Dunbar, even when coupled with the (admittedly significant) efforts that she has made in reaching out to service providers in her community to assist her. [ 72 ] As I consider the sentencing principles referred to above, an adequate balancing of the objectives and principles "in play" required a much more significant emphasis by the sentencing judge upon the principles of denunciation and deterrence, which in turn required consideration of the step principle. The reoccurrence yet again of this type of offence by the Respondent was a significantly aggravating factor.

This appeared to receive little to no consideration by the sentencing Judge. [ 73 ] As with all of the sentencing principles discussed above, I also consider the need to balance the principles of denunciation and deterrence with the positive steps that have been taken by the Respondent. They may augur more favourably for her future if they are not unduly interrupted.

I consider the conditional sentence order made available to her co-accused, but which was unavailable to the Respondent due to her lack of housing, and the relative ineffectiveness of prior conditional sentence orders (and also one of 90 days intermittent imprisonment) that have been imposed upon the Respondent in the past. [ 74 ] I also note that Ms. Giles’ prior record at the time her sentence was imposed was not referenced either at Ms. Dunbar’s sentencing, or in argument in this appeal. [ 75 ] In my view, balancing all of the above in this case requires a short sharp period of incarceration.

This is something that Ms. Dunbar had not experienced as of October 17, 2018, because her only other period of incarceration for related offences came in January 2016 and was served intermittently. Conclusion [ 76 ] The appeal is allowed. The Respondent shall receive a sentence of 30 days imprisonment. Of course, this shall be in addition to whatever sentence(

s) she may be currently serving for other subsequent offences. [ 77 ] The sentencing Judge also imposed a victim fine surcharge (“VFS”) upon Ms. Dunbar, allowing her five years within which to pay it. Given that I now have the ability to do so, on the basis of R. v. Boudreault , 2018 SCC 58 (a decision which was handed down after the sentencing judge’s decision in this case) I will waive the imposition of the victim fine surcharge. Ms. Dunbar’s present financial circumstances are such that she would incur significant hardship if the VFS were to remain extant. Gabriel, J.