R. v. Miller, 2021 NSSC 38

SUPREME COURT OF Nova Scotia Citation: R. v. Miller , 2021 NSSC 38 Date: 20210205 Docket: CRT 500569 Registry: Truro Between: Steven Gordon Miller Appellant v. Her Majesty the Queen Respondent DECISION Judge: The Honourable Justice Jamie Campbell Heard: February 5, 2021, in Truro, Nova Scotia Counsel: David Mahoney and Nicolas Hoehne, for the Appellant Laura Barrett, for the Respondent By the Court (orally): [ 1 ] This is an appeal of a sentencing decision in which the trial judge refused to accept the joint recommendation of counsel in a

summary conviction matter. Crown and defence counsel have joined in their representations on the appeal seeking to have the trial judge’s decision overturned and the sentence that they recommended imposed. The appeal is allowed. Facts [ 2 ] On June 5, 2019, the appellant, Steven Gordon Miller, pleaded not guilty to a charge of impaired driving and failing or refusing to provide a breath sample. The trial was set down for November 4, 2019. On the date of the trial counsel negotiated a plea deal and sentencing agreement. Mr.

Miller would plead guilty to the refusal charge and Crown and defence counsel would put forward a joint recommendation for 9 months’ custody, followed by probation for 18 months and a driving prohibition. Mr. Miller pleaded guilty to the single charge, as agreed, and the matter was set over to January 8, 2020 for sentencing. A pre-sentence report was ordered. [ 3 ] The pre-sentence report showed that Mr. Miller had a very difficult childhood. He left school after completing Grade One. He has two children with two partners. His struggles with alcohol addiction began when he was 11 or 12 years old.

He has tried to rehabilitate himself and use the resources in the community, but those efforts have not succeeded. Though he had worked for 35 years, he had at that time been unemployed for four years and was receiving social assistance. He expressed remorse and recognized that he had “done wrong”. He shared his personal thought that “sober drivers run over people too”. Coming from a person with a record of drunk driving, Mr. Miller’s statement diminished the extent to which one might have regarded him as a character deserving of sympathy. [ 4 ] When the day came for sentencing there was a winter storm.

Sentencing was adjourned to February 6, 2020 and then to February 13, 2020. That day, he was asked to wait and returned to his car. His lawyer did not know where he was and when his case was called a warrant was issued. When he came back into the courthouse he was brought into cells and the matter proceeded to sentencing. [ 5 ] The facts were put before Judge Alain Bégin of the Nova Scotia Provincial Court. Police had found Mr. Miller in the parking lot of a Nova Scotia Liquor Corporation store where he had exhibited the indicia of impairment.

He was generally compliant but would not give a breath sample when one was demanded by the police.

[ 6 ] Mr. Miller had six prior convictions related to drinking and driving. The last of those offences however, was in 2007, for which he was convicted in 2010 and sentenced to 6 months in jail. Crown counsel provided a sentence recommendation and the judge asked if this was “an Anthony-Cook joint recommendation”. Crown counsel acknowledged that it was. Before hearing from defence counsel, the trial judge said that he would not accept the joint recommendation and suggested that Mr. Miller should get a sentence of two years. The trial judge said that Mr.

Miller could withdraw the guilty plea and have a trial before another judge or that another recommendation closer to 2 years could be proposed. [ 7 ] Counsel spoke to each other. Defence counsel asked the judge to adjourn the matter further so that he could review the caselaw. Mr. Miller was in custody on the warrant that had been issued earlier in the day. He was released on conditions. [ 8 ] Sentencing was adjourned to March 26, 2020. Because of the pandemic the sentencing was set over again to June 17, 2020 and again until July 7, 2020.

On July 7, 2020 both counsel confirmed that they were maintaining their original positions and would be asking for a period of 9 months’ custody followed by probation and a driving prohibition. The Crown noted that almost 10 years had passed since Mr. Miller’s last conviction. She provided the court with recent caselaw related to the acceptance of joint recommendations. Defence counsel, in argument, said that the joint submission was reasonable considering that Mr. Miller’s last offence took place in 2007. Mr. Miller had been on strict conditions since February 13, 2020 without any issues.

There had been no alcohol use and Mr. Miller had stayed out of all grocery stores that had liquor stores associated with them. This was said to be a significant and successful change in his life because he had previously been drinking every day. [ 9 ] Judge Bégin gave his decision. He said that he was well aware of Anthony-Cook , and that while on occasion he would “jest” about it, he took it very seriously and understood it. He said that the reality of Anthony-Cook is that the sentence “has to be a reasonable sentence, within norms”. He told Mr. Miller that on the seventh conviction 9 months was not the norm.

He told counsel that the sentence as proposed was “an affront to the administration of justice”. “No one would take this seriously; everyone would think this is a joke.” [ 10 ] At that point Mr. Miller interrupted the judge. He said, “I don’t think it’s a joke.” [ 11 ] The judge continued. Everyone would think I’ve become unhinged on the bench. Seventh time and you only get nine months and you’ve previously done a stint of six months and you’ve previously done…done a stint of four months, a 90-day, a 90-day, a 30-day and a $700 fine, I’m gonna say, “Yeah, nine months”? Not gonna happen.

Counsel had the option to rethink it. They did; they stuck to it. That’s fine. I understand the step…the step principle and the gap principle. I understand it very well. Mr. Mahoney and I had a little dispute, I guess, or a disagreement with regards to the step and gap principle in Marchand . That’s going up to Justice Hunt. He can tell me if I’m right or wrong, but I’ll tell you right now, the step principle takes priority over the gap principle. You’ve done it seven times; you know what’s coming and you know it’s not gonna be good. You know what’s coming. [ 12 ] Mr. Miller said, “I know”. The judge resumed.

Yeah, and it’s more than nine months, I’ll tell you right now sir, it’s more than nine months. I don’t like doing this to counsel, I really don’t. I respect the job you do but I have to do my job, take my oath seriously. A nine-month sentence is not gonna cut it sir, not gonna cut it. I’m sentencing you to 18 months in jail followed by 24 month’s probation, sir. You are a menace to society. And I’m talking to you; there’s no press here or anyone else. There’s just the counsel and you and I here and a couple sheriffs, that is it. I’m not grandstanding. I’m not showboating.

I’m taking my job seriously and I’m keeping you off the street for a while. You have a kid... I know you have a kid with your common law spouse, but you knew that when you went drinking and driving in March 2019. [ 13 ] The judge said that he would not accept such a low sentence and said it was not “fair” and not “appropriate” and did not recognize the danger that Mr. Miller was creating for society. Issue [ 14 ] Did the Honourable Trial Judge err in law by refusing to accept the joint recommendation by counsel?

Standard of Review [ 15 ] When a sentence is under appeal the reviewing court is required to take a respectful and deferential approach. Unless there has been an error in principle, a failure to consider a relevant factor or an over-emphasis on appropriate factors, sentences should only be varied when they are demonstrably unfit. [ 16 ] The issue of whether a jointly recommended sentence should be accepted involves legal questions that permit appellate scrutiny. R v. Anthony-Cook , 2016 SCC 43 [ 17 ] The Anthony-Cook decision of the Supreme Court of Canada was referred to by both counsel and the trial judge.

In that case, the court adopted a public interest test to measure whether a joint submission on sentence should be rejected. A joint submission is not considered on the basis of whether the trial judge considers the sentence to be “fit” or whether an appellate court would consider it to be “demonstrably unfit” or, for that matter, whether the sentence is reasonable as falling within an acceptable range. A more stringent test is to be applied because it best reflects the benefits that joint submissions bring to the criminal justice system and the need for a high degree of certainty in them.

The public interest test is distinct from the tests that appellate courts use in conventional sentencing hearings and helps to keep judges focused on what Justice Moldaver in the Supreme Court referred to as the “unique considerations” that apply when assessing the acceptability of joint recommendations. [ 18 ] Joint recommendations are a fundamental part of the plea bargaining system that allows the criminal justice system to function. A person is willing to plead guilty, avoiding the need for a trial, in exchange for a level of certainty regarding the sentence that will be imposed.

For that system to function, those who accept such a bargain must have a high degree of confidence that the agreed upon

sentence will be imposed. The easier it is for those bargains to be upset the less confidence there will be and the fewer resolutions. Ajudge’s decision not to accept a joint recommendation has implications not only for the individual case. It has implications for the justicesystem. And that is where two concerns about the justice system meet. [19] The test is whether the joint recommendation would bring the administration of justice into disrepute or is otherwise contrary tothe public interest.

A joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despitethe public interest considerations that support imposing it, it is so markedly out of line with the expectations of reasonable people aware ofthe circumstances of the case that they would view it as a breakdown of the proper functioning of the criminal justice system.

JusticeMoldaver said that rejection of a joint submission denotes a submission “so unhinged from the circumstances of the offence and theoffender” that it would lead reasonable and informed people, who were aware of the circumstances and of the importance of promotingcertainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. He calls that an“undeniably high threshold”. [20] The Supreme Court has sent a clear message to those of us who are trial judges. Think twice and maybe even three times beforejumping a joint recommendation.

It is not enough that the sentence is outside of the normal range of sentences in the circumstances. Theproposed sentence has to be so unhinged from the circumstances of the offence and the offender that departing from it in an individualcase is worth the potential broader erosion of confidence in plea bargaining arrangements. Test Applied by the Trial Judge [21] The trial judge in this case did not accept the joint recommendation. The judge referred to Mr. Miller’s record and to hisstatement to the court about sober people running people over.

The judge referred to the Anthony-Cook case but suggested that theproposed sentence was “not in the norm”, was “an affront to the administration of justice” and everyone would think it was a “joke”. Hesaid that people would think he had become “unhinged on the bench”. [22] The concern about the judge being perceived as having become “unhinged” repeats the word “unhinged” used by JusticeMoldaver. The difference is that Justice Moldaver referred to a submission being unhinged from the circumstances of the offence and theoffender.

It is unlikely that Justice Moldaver was suggesting by that a test under which the trial judge would consider whether peoplewould think the judge themselves had become unhinged. [23] The trial judge noted his view that the step principle takes priority over the gap principle. Under the step principle each time anoffender is sentenced, consideration is given to a more severe sentence. Under the gap principle, people are given credit for having a spanof time between offences for which they are being sentenced. Even though Mr.

Miller’s last offence had taken place 10 years before, thetrial judge believed that he should be given a sentence that was more severe than what he was given the last time. [24] There is no reference in the decision to whether the perceived inadequacy of the sentence was so significant that it justified therefusal to accept a joint recommendation having regard to the broader implications of that decision.

The Jointly Recommended Sentence [25] The test to be applied is not whether the sentence as recommended by counsel was within the reasonable range of sentences, wasfit or demonstrably unfit or was within the norm. It is the public interest test which involves a higher threshold. [26] The sentence recommended by counsel in this case reflects the decision of the Nova Scotia Court of Appeal in R. v. Bernard,2011 NSCA 53. That case was not about a joint recommendation. It was about the sentencing of a person who had pleaded guilty todrinking and driving offences. Mr.

Bernard had prior convictions for impaired driving in 1991, 1997 and 2001. In November 2009, he wascharged and about a month later charged again. Seven weeks later he refused a breathalyzer demand. Those were his fourth, fifth and sixthconvictions for drinking and driving related offences and two of them happened while he was awaiting trial. He was remanded for twomonths waiting for sentencing. [27] I was the trial judge in that case. Mr. Bernard was sentenced to two years less a day after credit for time served.

The case wasoverturned on appeal because I was wrong in imposing a global sentence that was outside the normal level of sentences for the mostserious of the individual offences involved. I made another error that is relevant to this case. I failed to take into account the significantpassage of time between the later in time incidents and those that had taken place 8 years before. The Court of Appeal noted that I hadfailed to account for the fact that Mr. Bernard had managed to avoid prosecution for such offences for many years.

That failure to take thegap into account resulted in a sentence that was excessive. [28] The Court of Appeal imposed a sentence of 9 months for Mr. Bernard’s sixth drinking and driving conviction. In his case, therehad been an 8-year gap between convictions. In Mr. Miller’s case the gap is longer than that. And 5 of his convictions were entered morethan 20 years before the latest incident occurred. The Court of Appeal found in Mr. Bernard’s circumstances that a 9-month sentence wasappropriate for a sixth conviction. That is the same sentence recommended by counsel in this case.

That would make it difficult tocharacterize the 9-month sentence as a “joke” to use the trial judge’s term, or as being unhinged from the circumstances of the offence andthe offender. [29] Counsel have provided several cases in which sentences of significantly less than two years have been imposed on peopleconvicted of multiple offences of drinking and driving, especially when there has been a gap during which the person has managed toavoid charges. R. v. MacDonald, 2015 NSPC 56, R. v. Demchuk, (ON CA), [2003] O.J. 4215 (C.A.), R. v. Francis,2008 ONCJ 363, R. v. MacKinnon, [2005] O.J. 6274 (Superior Court), R. v.

Prentice, 2007 ONCJ 88. [30] The issue is not whether one privileges the gap principle over the step principle. It is whether a joint recommendation for asentence of 9 months in jail with probation and a driving prohibition, in this case, could be said to be contrary to the public interest and tohave met the “undeniably high threshold” for rejection. It was not met here.

The recommendation proposed by counsel was not unhingedfrom the circumstances of the offence and the offender, and was consistent with sentencing caselaw in Nova Scotia and elsewhere. [31] The trial judge erred in not accepting the joint recommendation. The decision is set aside, and the jointly recommended sentence

is imposed. Campbell, J.