R v. Copan, 2019 NSSC 111

Supreme Court of Nova Scotia Citation: R v. Copan, 2019 NSSC 111 Date: 20190325 Docket: SYD 473843 Registry: Sydney Between: Her Majesty the Queen v. Christopher William Copan Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: March 25, 2019 in Sydney, Nova ScotiaWritten Decision: March 26, 2019Subject: Criminal Law; Sentencing; Joint Recommendation by Crown and Defence.Issue: S. 255(3.1) blood alcohol over legal limit; resulting death.Facts: Accused pleading guilty to offence prior to trial.

Single vehicle accident result in fatal injury to youngvictim, age 22, who was a passenger in the vehicle driven by the Accused.Result: Accused was age 24 at the time of the accident. No prior record with young family. Victims familyand Accused severely impacted by traumatic event. Accused’s actions were unintended, but criminalin nature. Principles of denunciation and deterrence emphasized. Court accepting joint submission of 2 years federal term of imprisonment, 2 year probationary period,a driving prohibition of 3 years and additional ancillary orders. Test in R v.

Anthony-Cook applied in concluding proposed sentence would not bring administration ofjustice into disrepute and not otherwise be contrary public interest.Cases cited: R v. Morine, 2011 NSSC 46 , 298 N.S.R. (2d)314; R v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; R v. Currie, 2015 NSSC 15; R v. MacDougall, (2011) 2011 NSPC 12 , 303 N.S.R. (2d) 39; R v. Leitchfield, (2010) 93 M.V.R. (5th) 134; R v. Lundrigan, unreported; R v. MacLeod, 48 M.V.R. (4th) 43, THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: R v. Copan, 2019 NSSC 111 Date: 20190325 Docket: SYD 473843 Registry: Sydney Between: Her Majesty the Queen v.

Christopher William Copan Judge: The Honourable Justice Patrick J. MurrayHeard: March 25, 2019, in Sydney, Nova ScotiaOral Decision: March 25, 2019 Counsel: Steve Melnick for the Crown John MacDonald for the Crown David Iannetti for Mr. Copan By the Court (Orally): Introduction [1] This is the sentencing hearing for the offender, Christopher William Copan, of Edwardsville, Nova Scotia, whose date ofbirth is September 7, 1992. [2] Mr.

Copan has pled guilty to the charge in the indictment that on the 19th day of August, 2017 at or near Kempt Head, in theCounty of Victoria, he did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eightymilligrams of alcohol in one hundred milliliters of blood, while operating a motor vehicle, to wit a 2009 Toyota Corolla, white in color,cause an accident resulting in the death of Brandon Bray, contrary to Section 255(3.1) of the Criminal Code of Canada. [3] Mr.

Copan entered his guilty plea on January 21, 2019 and upon making the necessary inquires the Court accepted his plea. In the result, Mr. Copan had admitted to the essential elements of the offence. The toxicologist report shows that at the time of theaccident Mr. Copan had blood alcohol readings between 158 mg and 186 mg of alcohol per 100 milliliters of blood. [4] This is a very serious offence as is evident by the maximum penalty under the criminal code, which is imprisonment for life.

This incident resulted in the loss of life of a young man, Brandon Bray, age 22, who was a passenger in the vehicle driven by theAccused. Facts [5] The facts in Appendix “A” have been agreed to and form part of the record. Those facts govern this matter. I have brieflysummarized them for the purposes of my decision. According to the facts, Mr. Copan and two friends were swimming that afternoon atRoss Ferry. Mr. Copan had been drinking. While driving back on the Kempt Head Road, the vehicle he was operating flipped severaltimes through the air, landing again on its wheels.

The vehicle left the road and landed over an embankment near the water. [6] Tragically, Brandon Bray, was ejected from the vehicle and was fatally injured. Mr. Bray’s brother, Colin Bray, was theother passenger in the vehicle driven by the Accused. [7] Police and ambulance were called to the scene. Mr. Copan was distraught. Signs of impairment were observed, includingliquor on his breath along with red glossy eyes. Discussion of Joint Submission [8] Mr. Copan is a young man who made a serious error in judgement. His actions resulted in a loss of the life young person.

He did not do so deliberately, but his actions in operating a motor vehicle having consumed alcohol in a quantity that exceeded the legallimit, and that resulted in the death of Brandon Bray, were criminal. I am sure has regretted his actions every day since the offenceoccurred on August 19, 2017. (R v. Morine, 2011 NSSC 46 , 298 N.S.R. (2d)314) [9] It is often said that this type of offence is too common and the consequences all too unnecessary.

Our Courts attempt to bringa proper balance to the sentencing process. [10] Whatever sentence is imposed will not make what happened any more understandable or any less painful for the victim’sfamily or for the Accused, himself. The principles of denunciation and deterrence are most often emphasized in these offences becausethat is the way society expresses its condemnation of this behavior, the behavior of operating a motor vehicle as Mr. Copan did, while hisblood alcohol level exceeded .80 mg of alcohol. The tragic results speak for themselves. [11] Counsel for the Crown and Defence are both experienced.

I believe they have recognized the seriousness of this situation inbringing a joint recommendation to the Court. In Canada, our highest court has spoken on the matter of joint recommendations that aremade by counsel in sentencing matters. In the leading case of R v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, theSupreme Court of Canada addressed the principles that must be applied by a Court in determining, as I must do, whether to accept a jointrecommendation. The recommendation here is that Mr. Copan serve a federal term of imprisonment of two years, followed by a period

of probation of two years, and a mandatory driving prohibition of 3 years plus the term of imprisonment, and other ancillary orders. [ 12 ] According to the pre-sentence report Mr. Copan has lost his employment and his mental health has been affected by this incident. He will have to accept this burden as he attempts to move on with his life, something which the victim cannot do. The victim’s family are suffering and they also carry the burden of this incident and the loss of a loved one at such an early stage. [ 13 ] Mr.

Copan's acceptance of responsibility, his age, and his lack of criminal record all weigh in his favour. His plea of guilty is a significant mitigating factor. In pleading guilty Mr. Copan has spared the victim’s family the ordeal of a trial, which would prolong what can only be considered the worst kind of nightmare. The Law [ 14 ] Because this is a joint submission, the proper test is the public interest test. [ 15 ] This test has two parts.

Under the law, departure from the joint recommendation is warranted only if the sentence would bring the administration of just into disrepute or is otherwise contrary to the public interest. [ 16 ] In considering these questions, the Court must grapple with the message the proposed sentence sends to the public in terms of whether it will serve to promote respect for the law. [ 17 ] If for instance the sentence would be viewed as too lenient or too harsh, the joint recommendation may not be in the public interest.

This was addressed by the Supreme Court of Canada in Anthony-Cook , when they stated that joint sentence recommendations are generally accepted and any rejection of them should not be done lightly. Only where reasonable and informed members of the public would view the proposed sentence, as a breakdown in the proper functioning of the justice system, should the Court consider departing from it. [ 18 ]

Section 718 of the Criminal Code sets out the objectives of sentencing. These objectives are the underlying reasons, that form the basis of the sentencing principles. [ 19 ] One of those principles is that of parity, where the Court should attempt to impose similar sentences on similar offenders in similar circumstances. No two situations however, are identical, and that is why sentencing is an individual process. Pre-Sentence Report [ 20 ] Mr. Copan is 26 years of age, and at the time of the accident he was 24 years old.

He is the father of a two year old son from his common law relationship with Natalie Lomond. [ 21 ] His presentence report is generally positive. He has the support of his parents who are now separated but were together for 25 years. His common law spouse and he have been together for 5 years and she supports him. She says that since this incident, he has been sad, depressed and isolated. [ 22 ] Mr. Copan had been steadily employed for 5 years as a forklift truck operator at Sydport. He has special training in this area.

A negative feature in the report is that he is not currently employed and therefore, has been unable to provide financial support to his young family. His father hopes that he will obtain some form of structured counselling to assist him in coping. [ 23 ] In determining whether to accept the joint recommendation I have considered the submissions of counsel, the admitted facts, the presentence report, and the victim impact statements.

Victim Impact Statements [ 24 ] I would like to take a moment to address the victim impact statements that have been presented to the Court by Brandon Bray’s mother, Anne MacNevin, and by his Aunt, Dawn Stegens. [ 25 ]

Section 722 of the Criminal Code states that the Court shall consider victim impact statements when determining the sentence to be imposed. I have read and considered the statement of Anne MacNevin and commend her for having the courage to write her statement and have it presented to the Court in very difficult circumstances. [ 26 ] Her compelling statement about hearing the news of her son and the devastation of that is something that resonates with every parent. In terms of any guilt she is feeling, let me say that the actions being addressed here today are those of Mr.

Copan and his alone. [ 27 ] With respect to the statement of her sister, Dawn Stegens, she describes in a broader sense, the huge loss and impact that Brandon’s death has had on his mother and her three boys. “His death has left us speechless and shaking with emotion”, she said. [ 28 ] The Court can only hope, as Anne MacNevin herself has said, that at some point in the future, fond memories will begin to replace these difficult times. Caselaw [ 29 ] The Court recognizes the proposed sentence is at the “low end”. In fact, the range is often referred to as 3 - 5 years.

There is however, precedent for this type of sentence in the appropriate circumstances. [ 30 ] The Crown has submitted R v. Currie , 2015 NSSC 15 , where the accused who was 22 at the time of the offence and 25 at the time of the sentencing, pled guilty to one count of impaired driving causing death. As was the case here, the deceased victim had been thrown from the vehicle. The accused had no prior record, was remorseful and was steadily employed with a young family. The Court accepted the joint recommendation of two years and a 2 year driving prohibition. In the present case, the Crown is seeking a 3 year

driving prohibition plus the term of an prison sentence. ( s. 259(2) (a,

i) C.C.C.) [31] In R v. MacDougall, (2011) 2011 NSPC 12 , 303 N.S.R. (2d) 39, the court sentenced an 18 year old offender with noprior record having a blood alcohol level of 108 mg to two years for a similar offence. The relevant sentencing principles were generaldeterrence and denunciation. Once again, the young victim was ejected from the vehicle and fatally injured. [32] There are additional cases such as R v. Leitchfield, (2010) 93 M.V.R. (5th) 134, and R v. Lundrigan, unreported, that support a2 year sentence. In Litchfield, as here, the accused was very much affected by the incident.

In MacDougall, the court stated that thesentence imposed was the least that would be fit and appropriate. I am also guided by the comments of Gogan, J. in Lundrigan whereshe stated: Although specific deterrence may not receive much weight on the evidence before me, there is absolutely no question that denunciationand general deterrence must be heavily emphasized. The sentence in this case, as in all others, must strike a balance between thecompeting goals. But the severity of the present circumstances requires a custodial sentence and this is recognized in the jointrecommendation.

Decision [33] Applying the test to these circumstances, I am satisfied that the joint recommendation of counsel should be accepted,principally for several reasons. 1. As was the case in Currie, a two (2) year penitentiary term for someone never previously before the law, with a youngfamily and no criminal background constitutes a significant penalty and serves to send a strong message to likeminded individuals. 2. As Justice Cromwell stated in R v. MacLeod, 48 M.V.R. (4th) 43, generally where incarceration is used to serve theobjective of general deterrence, it should be used with restraint. 3. Mr.

Copan took responsibility for his actions. While his guilty plea was not immediate he gave notice of it 6 weeks prior tothe trial. He admitted at the scene to being the driver. He was 24 years of age at the time of the offence. 4. Mr. Copan has clearly been affected by this incident and has acknowledged the need for mental health counselling. He has ayoung family including his two year old son. [34] I have considered that Mr. Copan’s employment prospects are not as positive as for example the accused in Currie.

I have alsoconsidered that his extrapolated readings were higher than in some cases such as MacDougall, Litchfield but within same range as inCurrie. [35] I have considered that Mr. Copan entered his guilty plea 6 weeks before the trial was scheduled to commence and he has shownremorse for his actions. [36] In arriving at this decision, I am guided by the fundamental purpose of sentencing which is to protect society and contribute torespect for the law and the maintenance of a just, peaceful and safe society.

Society and the public look to the courts to be "just" inimposing sentences that will fulfil this purpose. [37] I confirm that joint recommendations are considered a necessary part of the criminal justice system and although they are notbound to do so, courts often respect the sentence being proposed because counsel are “well placed” to assess the circumstances. [38] In conclusion, I am satisfied the recommendation made by counsel is in keeping with the proper administration of justice and isnot otherwise contrary to the public interest. [39] Mr. Copan you have entered a guilty plea to the offence charged.

I sentence you to two years in federal custody, followed by24 months probation on the terms and conditions set out in the joint recommendation. [40] In addition, I impose upon you a driving prohibition of three years in addition to the two year period you have been sentencedto imprisonment therefore for a total of 5 years, beginning on today’s date. Pursuant to section 259(2)(a.

i) this will be an absolute barfrom you driving a motor vehicle until March 26, 2024. [41] In addition, I am imposing a DNA Order under s. 487.04 and a mandatory Firearms Prohibition Order for a term of 10 yearspursuant to s. 109 of the Criminal Code of Canada . [42] Mr. Copan you are prohibited from enrolling in the interlock driving program for a period of two years from today’s date. Murray, J Appendix “A” 1. On the 19th day of August 2017 the Accused, Christopher Willian Copan, was the driver of a white 2009 Toyota Corolla motorvehicle at all material times.

2. On that date the Accused spent the day at the beach with some friends swimming at Ross Ferry and consuming alcohol. 3. That at the time the Accused was driving the Toyota Corolla the weather was clear with sunny skies and a temperature of 23 Celsius. 4. At approximately 4:30 while the Accused was driving home on Kempt Head Road being a 2-lane graveled highway the accused at the prompting of one of the passengers pulled the emergency brake on the motor vehicle. 5. That as a result of applying the emergency brake the motor vehicle began to spin and the Accused lost control of the motor vehicle. 6.

That the Toyota Corolla operated by the Accused was described by witnesses as travelling at a high rate of speed. 7. That as a result of the applying of the Emergency Brake the Accused lost control of the Toyota Corolla motor vehicle which caused the motor vehicle to spin and rotate counter clockwise (CCW) and to tumble and flip in the air, hit a spruce tree, and finally land on its wheels in a vegetated ditch. 8. That as a result of the collision one of the occupants of the Toyota Corolla, Brandon Bray was ejected from the vehicle and was later pronounced dead at the scene of the accident. 9.

That witnesses to the accident immediately called 911 and one of the witnesses, a nurse, attended to the accident scene and assisted in providing CPR to the male Brandon Bray without success. 10. That the other 2 occupants of the Toyota Corolla received minor injuries including cuts and scrapes on legs and arms and the Accused driver who received a cut to his foot. 11. In the course of the investigation a mechanical inspection was per formed by L.

Morris, Motor Vehicle Inspector from the Department of Transportation & Infrastructure Renewal on the Toyota Corolla and no defects were located that caused or contributed to the collision. 12. That a Collision Reconstruction Investigation Report completed by the RCMP concluded that the Toyota Corolla was travelling at a minimum speed of 71-81 km/h prior to the collision, that the collision was consistent with a steering induced rotation by the driver. 13.

With the arrival of the RCMP on the accident scene they identified the driver of the Toyota Corolla to be Christopher William Copan, who was displaying the usual signs of impairment including, smell of alcohol from his breath, red glossy eyes. 14. During the course of the investigation the Accused readily admitted to consuming alcohol prior to driving and in particular informed RCMP members at the scene that he consumed 4-5 beers and some Southern Comfort liquor. 15. As a result of the investigation Mr.

Copan was arrested for impaired operation of a motor vehicle causing death, and read his charter of rights and police cautions. 16. That Mr. Copan initially declined his right to speak to legal counsel, but later changed his mind after RCMP suggested that he should given the seriousness of the charges. Later at the North Sydney detachment Mr. Copan spoke with duty Counsel in private. 17. That Mr. Copan was taken to the RCMP detachment in North Sydney where he provided samples of his breath as a result of the demand.

18. That due to the breath samples being outside the 2 hours limit a toxicologist report was obtained which indicated that at the time of the accident the readings were between 158mg% and 186 mg%.