R. v. Peddle, 2022 NLSC 163

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Peddle , 2022 NLSC 163 Date : November 10, 2022 Docket : 202101G6475 HIS Majesty The KING v. Keith Peddle Before: Justice Glen L.C. Noel On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0117A02655 dated the 30th day of July 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 27, 2022

Summary: The offender is a repeat impaired driver. At his sentencing hearing in the Provincial Court, he brought a

section 12 Charter Application challenging the mandatory minimum term of imprisonment for 120 days because of the effect incarceration would have on his mental health. The sentencing judge found the mandatory minimum sentence would be grossly disproportionate to this particular offender, and imposed a conditional sentence of nine months, together with a probation order and driving prohibition. The Crown appealed the conditional sentence order.

The Court held: The sentencing judge erred in finding a

section 12 Charter violation. The conditional sentence order was set aside and varied to acustodial sentence reflecting the mandatory minimum. With credit for the nine months, the Court imposed a sentence of time served. Appearances: Sheldon B.J. Steeves Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Chaulk, 2021 NLCA 49; R. v. M. (C.A.), 1996 SCC 230; R. c. Lacasse, 2015 SCC 64; R. v. Nur, 2015SCC 15; R. v. Lloyd, 2016 SCC 13; R. v. Boudreault, 2018 SCC 58; R. v. Garcia (2004), (ON SC), 120 C.R.R. (2d)1, 20 C.R. (6th) 63 (Ont. Sup.

Ct.); R. v. Castor, 2021 ABPC 283; R. v. Wiles, 2005 SCC 84; R v. Wu, 2003 SCC 73; R. v. Proulx, 2000SCC 5; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Kumar (1993), (BC CA), 49 M.V.R. (2d)20, 20 C.R.R. (2d) 114 (B.C.C.A.); R. v. Parsons (1988), (NL SC), 209 A.P.R. 206, 68 Nfld. & P.E.I.R. 206 (Nfld.S.C.(T.D.)); R. v. White, 2003 NLSCTD 96; R. v. Slaney (1985), (NL CA), 168 A.P.R. 1, 56 Nfld. & P.E.I.R. 1 (Nfld.C.A.); Bedford v. Canada (Attorney General), 2013 SCC 72; R. v. Branton, 2013 NLCA 61; R. v. Find, 2001 SCC 32; R. v. Spence, 2005SCC 71; R. v. Butler, 2017 NLCA 69; R. v.

Butler (2017), 149 W.C.B. (2d) 449, 398 C.R.R. (2d) 94 (N.L. Prov. Ct.); R. v. Tuglavina,2020 NLCA 30 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46; Customs Act, R.S.C. 1970, c. C-40; Prisons Act, R.S.N.L.1990, c. P-21; Provincial Court Act, 1991, S.N.L. 1991, c. 15 TEXTS CONSIDERED: Jesso Report (Marlene Jesso, Michelle Hawco & Robert St.

Croix, Newfoundland and Labrador Correctionsand Community Services: Deaths in Custody Review, December 12, 2018) REASONS FOR JUDGMENT Noel, J.: OVERVIEW [1] The Crown appeals the finding of the Provincial Court of Newfoundland and Labrador sentencing judge that the mandatoryminimum period of incarceration of 120 days for Keith Peddle, a repeat impaired driver with a major depressive disorder, violated s. 12of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.),1982, c. 11. [2] The sentencing judge concluded a custodial sentence at Her Majesty’s Penitentiary (“HMP”) would constitute cruel andunusual punishment for Mr. Peddle, given his vulnerable mental health condition. Instead, he sentenced Mr. Peddle to a conditionalsentence of nine months. The sentence also included a Probation order of 12 months following the conditional sentence and a DrivingProhibition of five years. The Crown does not appeal the Probation Order or the Driving Prohibition. [3] Mr.

Peddle pleaded guilty, and the judge entered a conviction for driving with a blood-alcohol concentration in excess of 80mg of alcohol in 100 ml of blood (contrary to s. 253(1)(

b) of the Criminal Code, R.S.C. 1985, c. C-46). The Crown withdrew a charge ofimpaired driving arising from the incident. [4] The Crown tendered the s. 727 Criminal Code Notice of Intention to Seek Greater Punishment because of the prior relatedconvictions, triggering the mandatory minimum punishment in s. 255(1)(a)(iii) of the Criminal Code. Tendering of the Notice resulted inMr. Peddle’s counsel bringing a

Section 12 Charter challenge application.

[ 5 ] For the reasons that follow, the sentencing judge erred in finding a s. 12 Charter violation. He essentially followed the correct two-step analytical inquiry required for s. 12 challenges.

However, he erred in principle and law in deciding the mandatory minimum provision was “grossly disproportionate” in three respects: 1. failing to give paramount consideration to the valid penal purpose of denouncing and deterring repeat impaired driving offenders on the facts in this case; 2. disregarding the legal precedents on failed s. 12 challenges to the mandatory minimum sentence provisions for repeat impaired drivers; and most fundamentally, 3. relying on material facts not in evidence. [ 6 ] I vary the nine-month conditional sentence and impose a custodial sentence to reflect the mandatory minimum of 120 days, adjusted to account for a sentence of time served.

ISSUES [ 7 ] The appeal engages three issues: 1. Did the sentencing judge follow the correct two-step analytical inquiry for determining a s. 12 violation? 2. On the established facts, did the sentencing judge err in deciding the mandatory minimum provision was a “grossly disproportionate” sentence? 3. Did the sentencing judge err by relying on material facts not in evidence? BACKGROUND The Court’s Appellate Jurisdiction [ 8 ] The appeal is under section 830(1) (

a) of the Criminal Code involving a question of law. Because this is a

summary conviction offence, the appeal comes to this Court: R. v. Chaulk , 2021 NLCA 49 , at para. 3 . The Charter Application [ 9 ] Mr. Peddle filed a s. 12 Charter Application arguing that the mandatory minimum period of incarceration constituted cruel and unusual punishment. Mr. Peddle based his argument on his mental health condition. He called his psychiatrist and common-law spouse to give evidence. Mr. Peddle did not testify. Circumstances of the Offence [ 10 ] The incident occurred on August 4, 2017, in Portugal Cove-St. Phillips. In the late afternoon, Mr. Peddle was driving a pickup truck.

Witnesses observed an erratic pattern of driving on Thorburn Road, Bennett’s Road, Old Broad Cove Road, and eventually stopping at the end of Rainbow Gully Road. Rainbow Gully Road is the site of a recreation complex with a soccer field, softball diamond, and basketball courts that is often frequented by children. [ 11 ] Witnesses described Mr. Peddle’s pattern of driving as “all over the place” and in excess of the speed limit. His vehicle nearly collided with a pedestrian, another vehicle, and several motorcycles. A witness called 911 and followed Mr.

Peddle’s vehicle until the police arrived. [ 12 ] When police arrived, an officer observed Mr. Peddle reclined in the driver’s seat and a crushed beer can on the floor of his vehicle. The keys were in the ignition. Mr. Peddle exhibited gross signs of impairment, including swaying and stumbling when he exited the vehicle. [ 13 ] On the way to the police station, Mr. Peddle fell asleep in the back of the police vehicle. [ 14 ] Mr. Peddle’s two breathalyzer samples were extremely high – 230 and 220 milligrams of alcohol in 100 milliliters of blood. The Offender’s Criminal Record [ 15 ] Mr.

Peddle has a related criminal record with three prior convictions for alcohol driving offences, including one conviction for impaired driving causing bodily harm: Charge Offence Date Conviction Date Sentence

Impaired driving 1991-06-30 1991-08-30 $800 fine 4-month driving prohibition Over .08 mg% 1992-12-13 1993-01-22 14 days jail. 9-month driving prohibition Impaired driving causing bodily harm 1994-07-24 1995-01-05 10 months jail 3-year driving prohibition Over .08 mg% 1994-07-24 1995-01-05 10 months jail concurrent 3-year driving prohibition concurrent Circumstances of the Offender Dr. Mekawy’s Evidence [ 16 ] Dr. Mohamed Mekawy’s evidence was supplementary to a report he had written on Mr. Peddle’s behalf for the court. [ 17 ] Dr. Mekawy diagnosed him with major depressive disorder. He testified Mr.

Peddle has expressed suicidal ideation, and attempted suicide in 2003 by overdosing. He was unaware of any imminent suicidal thoughts or plans of Mr. Peddle. [ 18 ] In January 2018, Mr. Peddle entered the Waterford Hospital, initially as an involuntary patient, and remained under the care of Psychiatrist Dr. Nazir Ladha for 56 days. The hospitalization was for psychological decompensation resulting from current stressors mainly, and his shame and guilt from the matter before the court. [ 19 ] In more than 10 years since Dr. Mekawy has been treating Mr.

Peddle, alcohol was not a problem, to his knowledge, until the time of this incident. He acknowledged receiving much of his information from Mr. Peddle’s spouse. Common Law Spouse’s Evidence [ 20 ] Mr. Peddle’s spouse confirmed their common-law relationship of 15 years and that they have two children together. She advised in addition to major depression, Mr. Peddle also suffers from anxiety. [ 21 ] Mr. Peddle lost his permanent job in 2017 because of his illness and long periods of absence from work. He has not worked since 2011. He receives Canada Pension Disability. [ 22 ] She testified that when Mr.

Peddle’s medications were working well, he would not drink any alcohol. If he had a “depressive episode,” he would drink that day and spend the next day in bed “hiding from what he done.” [ 23 ] She stated that the triggering event on the date of the incident was the installation of her mother’s headstone on the gravesite. Mr. Peddle had been close to his mother-in-law before her death in January 2017. [ 24 ] The last episode of Mr. Peddle’s drinking was in January 2018 when he told his spouse “he was done” and asked for a gun.

The Waterford Hospital admitted him out of concern for his self-harm. [ 25 ] With respect to going to prison, his spouse was concerned that he would not come out “the same person if he comes out at all.” She also testified that Mr. Peddle stated, “he won’t be back.”

The Sentencing Judge’s Decision [26] The sentencing judge acknowledged that the mandatory minimum sentence is not “grossly disproportionate” in all cases. However, he noted that in the present case there was a “direct conflict” between the mandatory minimum sentence and the objectives ofsentencing enunciated in s. 718 of the Criminal Code, particularly relating to “assist in rehabilitating offenders.” [27] In his oral decision, he stated: I am cognizant of the facts in this case wherein a very drunk Mr. Peddle got behind the wheel of his vehicle and nearly caused significantinjuries or worse to multiple people.

Such conduct needs to be punished severely. However, on the full facts before me I am satisfied thatto send Mr.

Peddle who appears before me with his significant mental health concerns, suicidal ideation, into HMP with its recenthistory of dealing with inmates with pervasive mental health disorders combined with the aforesaid statement of the prison psychiatristthat the HMP is not a therapeutic institution, would outrage standards of decency and be abhorrent and intolerable to society. [28] The sentencing judge held that the mandatory minimum period of incarceration was a violation of s. 12, and he was thereforenot bound to impose the mandatory minimum period of incarceration.

He further found the violation was not “reasonable” and“demonstrably justified” under

section 1 of the Charter. ANALYSIS Standard of Review [29] Sentencing judges are typically given wide latitude to craft an appropriate sentence and the appellate court is to show deferenceto the sentence rendered: R. v. M. (C.A.), 1996 SCC 230, at paras. 89 and 90; and R. c. Lacasse, 2015 SCC 64, at para. 51.

A sentencingjudge possesses “the unique qualifications of experience and judgment” from serving “on the front lines of our criminal justice system”:M. (C.A.), at para. 91. [30] However, the deferential standard of review for a sentencing decision is not applicable to the question of law in the present case– whether the sentencing judge was correct to find a s. 12 Charter violation. The parties agree that the correctness standard is what I amto apply to that ultimate issue.

(1) Did the sentencing judge follow the correct two-step analytical inquiry for determining a s. 12 violation?

Section 12 of the Charter and “Grossly Disproportionate” Legal Test [31]

Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment orpunishment.” [32] The Supreme Court of Canada has set a high bar for determining what constitutes cruel and unusual punishment. The sentencemust be grossly disproportionate to the punishment that is appropriate to the offender before the court or hypothetical offenders. [33] In R. v. Nur, 2015 SCC 15 (at para. 39), then McLachlin CJC stated: This Court has set a high bar for what constitutes "cruel and unusual ... punishment" under s. 12 of the Charter.

A sentence attacked onthis ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and thecircumstances of the offender: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045 (S.C.C.), at p. 1073. Lamer J. (as he then was)explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation".

A prescribedsentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionateimpact on others, rendering the law unconstitutional. [34] Similarly, McLachlin CJC in R. v. Lloyd, 2016 SCC 13, emphasized the mandatory minimum period of incarceration wouldhave to offend the standards of decency or be intolerant to society.

She wrote (at para 24): It must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to society: Smith, at p. 1072, citing R. v.Miller19761976 CanLII 12 (SCC), [1977] 2 S.C.R. 680(S.C.C.), at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1S.C.R. 96(S.C.C.), at para. 14. Power of the Sentencing Judge on Mandatory Minimum Provision Constitutionality [35] Lloyd (at para. 16) confirms that provincial court judges have the power to determine the constitutional validity of mandatoryminimum provisions when the issue arises in a case before them.

Since the sentencing judge had no power to declare s. 255(1)(a)(iii) ofthe Criminal Code of no force and effect, he was correct in only considering whether to decline to impose the mandatory minimum as aremedy in this case. He did not determine, and there was no need for him to decide, whether the mandatory minimum sentence infringedthe rights of hypothetical offenders. The Two-Step Analytical Inquiry [36] The Supreme Court in R. v.

Boudreault, 2018 SCC 58 (at para. 46), reiterated the two-step inquiry required in assessing a s. 12challenge: Where a mandatory minimum sentence is challenged, this Court has set out a two-step inquiry for determining whether that sentence isgrossly disproportionate. First, a court must determine what would constitute a proportionate sentence for the offence according to theprinciples of sentencing in the Code.

Second, a court must ask whether the mandatory punishment is grossly disproportionate whencompared to the fit sentence for either the claimant or for a reasonable hypothetical offender: see Nur, 2015 SCC 15, at paras. 46 and 77.

[emphasis added] [37] The sentencing judge was cognizant that “sentencing is first and foremost an individualized exercise.” He referred toparagraph 58 of Boudreault that arriving at a fit sentence requires “balancing the various goals of sentencing, while taking into accountthe particular circumstances of the offender as well as the nature and number of his or her crimes.” [38] Where the sentencing judge erred, is in his approach to the second of the two steps required. The Crown submits he erred onthe first step too.

I agree that the sentencing judge could have better articulated and explained each step of the analytical inquiry. Nevertheless, on step one I am satisfied, absent the mandatory minimum, a nine-month conditional sentence would be a fit andproportionate sentence given the nature of the offence and Mr. Peddle’s mental health circumstances. [39] Mandatory minimum custodial sentences for repeat offenders driving while intoxicated have been around for over a century: R.v. Garcia (2004), (ON SC), 120 C.R.R. (2d) 1, 20 C.R. (6th) 63 (Ont. Sup. Ct.), at paras. 133 and 135; and R. v.Castor, 2021 ABPC 283, at para. 43.

Consequently, the low end of the sentencing range would necessarily conform to the minimumprescribed penalties.

The Crown’s argument, that the mandatory minimum falls within the sentencing range, effectively means Mr.Peddle’s constitutional challenge was doomed to failure without the sentencing judge conducting the necessary inquiry expected of himat step one. [40] In my view, the sentencing judge properly rejected this argument, and asked himself the correct question: whether a conditionalsentence is a proportionate and fit sentence according to the principles of sentencing, but for the mandatory minimum provision. What Constitutes a Proportionate Sentence for Mr.

Peddle [41] The judge specifically addressed in his sentencing decision: “What is a fit and appropriate sentence?” He acknowledged theCrown was seeking a custodial sentence of four to six months. He considered the relevant factors (R. v. Wiles, 2005 SCC 84, at para. 5),including: - the gravity of the offence; - the personal characteristics of Mr. Peddle; - the particular circumstances of the case; - the effect of a custodial sentence on Mr.

Peddle’s mental health; - penological goals and the sentencing principles; and - the existence of a valid alternative to a custodial sentence. [42] The sentencing judge stated: Mr. Peddle’s decision to drive while drunk to almost three times the legal limit must be denounced and specifically deterred. This can bedone by a lengthy conditional sentence commonly referred to as house arrest as well as a lengthy driving prohibition. In determining theduration of the conditional sentence, I have factored in the sentencing principles enunciated in s. 718 to 718.2 of the Code. I am notsatisfied that Mr.

Peddle should be dealt with more leniently than a lengthy period of conditional sentence which contains in it a risk forhim that the time would be converted to straight time if he breaches his conditional sentence. Given Mr. Peddle’s alcohol driving record combined with his blood alcohol readings, the speed of driving, and erratic pattern of drivingthat placed multiple people at risk, I impose a period of nine months conditional to be served in the community. [43] Under the conditional sentence, the judge imposed strict conditions confining Mr.

Peddle to his residence and allowing anopportunity for exercise one hour per day, and a four-hour block of time one day a week. Effect of Conditional Sentence [44] The imposition of a conditional sentence under s. 742.1 of the Criminal Code means it is “a sentence of imprisonment,” servedin the community. It is imprisonment without incarceration: R v. Wu, 2003 SCC 73, at para. 25. [45] The sentencing judge correctly decided a term of imprisonment was necessary. He then determined a conditional sentenceserved in the community, under house arrest with restrictions on the limited time Mr.

Peddle could leave, properly gave effect todenunciation and deterrence. [46] The stigma and punitive conditions of a conditional sentence with house arrest should not be underestimated. The Chief Justicewrote for the unanimous Supreme Court in R. v. Proulx, 2000 SCC 5 (at para. 105), that: … Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct canprovide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may makeit even more difficult for the offender to serve his or her sentence in the community than in prison. [47] A breach of the conditional sentence order could have resulted in more onerous punishment for Mr. Peddle, including a periodof incarceration and possibly for even longer than the mandatory minimum.

Where the court is satisfied that the offender breached acondition of the conditional sentence order, the court may suspend the order and direct the offender to serve a portion of the unexpiredsentence in custody, and that the sentence resume on release from custody: s. 718.6(9)(c). On breach, the court could also terminate the

order and commit the offender to custody until the expiration of the sentence: s. 718.6(9)(d). [48] I am in agreement with the sentencing judge that a conditional sentence for Mr. Peddle would give effect to the purpose andprinciples of sentencing. Judge Stirling of the Alberta Provincial Court in Castor, (at paras. 97 and 98) reached a similar conclusion onhow a conditional sentence can give effect to denunciation and deterrence for a repeat impaired driver. However, Stirling Prov. J. did notfind in Castor the mandatory minimum sentence to be grossly disproportionate for an indigenous offender, after carefully considering s.718.2(

e) on all available sentencing sanctions, other than imprisonment, and the Gladue report and factors (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688). [49] Unless Mr.

Peddle could establish a violation of his s. 12 Charter right, a conditional sentence was not a sanction available tothe sentencing judge, where the offence is punishable by a minimum term of imprisonment: s. 742.1(b). 2) On the established facts, did the sentencing judge err in deciding the mandatory minimum provision was a “grossly disproportionate”sentence? [50] This issue engages the second step of the analytical inquiry – is the mandatory minimum a grossly disproportionate sentencefor Mr.

Peddle on the established facts of this case? [51] In determining whether a sentence is “grossly disproportionate,” the sentencing judge was to give consideration to, amongother things, whether the punishment is necessary to achieve a valid penal purpose, the effects of the punishment on Mr. Peddle,whether the punishment is founded on recognized sentencing principles, and whether there are valid alternatives to the punishment:(Boudreault, at para. 48).

The factors for consideration are not a rigid test and no individual factor is determinative of the outcome. [52] The sentencing judge applied an unbalanced approach in his assessment of the sentencing principles, and failed to consider theconstitutional precedents on s. 12 challenges to the mandatory minimum provision for repeat impaired driving offenders. He placedimproper focus on Mr.

Peddle’s circumstances and a conditional sentence as an alternative for achieving the goals of denunciation anddeterrence, to the exclusion of the valid penal purpose that Parliament intended the mandatory minimum provision to achieve for repeatimpaired offenders. Valid Penal Purpose of Denunciation and Deterrence [53] The valid penal purpose that the mandatory minimum provision achieves is denunciation and deterrence of repeat impaireddrivers. [54] The carnage caused by impaired drivers on our highways cannot be understated.

It is a major societal concern. [55] To combat impaired driving, Parliament has mandated increasing mandatory minimum sentences, including mandatory periodsof incarceration, for repeat offenders. The purpose of a mandatory minimum term of imprisonment is to deter someone, such as Mr.Peddle with prior convictions for impaired driving, from re-offending. Parliament has differentiated between first offenders and repeatoffenders by mandating the minimum punishment of imprisonment for only repeat offenders. [56] Mr.

Peddle agrees that impaired driving is a serious problem that warranted the attention it received from Parliament. Mr.Peddle is not arguing that the mandatory minimums are unconstitutional as a whole. [57] He is arguing the mandatory minimum sentence prescribed by the Criminal Code constitutes cruel and unusual punishment,given his personal circumstances, within the individualized scenario of the two-step framework for determining a s. 12 breach. [58] While I agree that Mr.

Peddle’s personal circumstances must be considered, the predominant principle in sentencing forimpaired driving is denunciation and deterrence: Lacasse at para. 6. [59] The judge recognized the conflict between the sentencing principles but failed to account for the primary principle ofdenunciation and deterrence to achieve Parliament’s valid penal purpose. The judge’s failure to give primary consideration todenunciation and deterrence is an error in principle: Branton, at para. 39.

Legal Precedents on s. 12 Challenges to the Mandatory Minimum Provisions for Repeat Impaired Drivers [60] The sentencing judge failed to consider or distinguish any of the constitutional precedents specifically on mandatory minimumimpaired driving challenges for repeat offenders. [61] Charter challenges to the impaired driving mandatory minimum sentences of imprisonment for second and subsequent offenceshave consistently failed, or appellate courts have overturned lower courts that found a Charter violation.

Hill J, in Garcia, did acomprehensive review of the case law authorities (see paras. 140 – 145); including the British Columbia Court of Appeal decision in R.v. Kumar (1993), (BC CA), 49 M.V.R. (2d) 20, 20 C.R.R. (2d) 114 (B.C.C.A.), and most significantly, this Court’sdecisions in R. v. Parsons (1988), (NL SC), 209 A.P.R. 206, 68 Nfld. & P.E.I.R. 206 (Nfld. S.C.(T.D.)); and R. v.White, 2003 NLSCTD 96.

The recent Castor decision (at para. 115) references a review of the failed historic challenges. [62] Barry J in Parsons (at para. 24) stated, “In my view all minimum sentences are odious to some degree because they take awayfrom the trial judge a discretion in sentencing according to the gravity of the offence.” However, Justice Barry commented thatParliament deliberately implemented the mandatory minimum provision in an effort to curb the irresponsible driving of persons operatingmotor vehicles on our highways under the influence of alcohol.

Lighter penalties have failed to reduce the incidence of accidentsresulting in injury and death, caused by alcohol-imbibing drivers. He concluded the prescribed minimum penalty for a third convictionis not a grossly disproportionate punishment where a grievous violation of the law is concerned. [63] Russell J of this Court in the subsequent White decision, dealing with an offender with a previous impaired driving conviction,

found no violation of the offender’s s. 12 right. He held the minimum mandatory sentence is not grossly disproportionate. JusticeRussell stated (at para. 62): “A consideration of the gravity of the offence and the characteristics of the offender does not diminish thedegree of criminal responsibility of the accused. Also the sentence is not out of step with penological goals or sentencing principles.” [64] I also note our Court of Appeal in R. v.

Slaney (1985), (NL CA), 168 A.P.R. 1, 56 Nfld. & P.E.I.R. 1 (Nfld.C.A.), similarly rejected (at para. 35) a s. 12 Charter challenge to a mandatory minimum term of imprisonment for a successiveconviction for an indictable offence under the Customs Act, R.S.C. 1970, c. C-40. Morgan JA observed (at para. 36), “We are not heredealing with first offenders.” [65] In considering and deciding Mr.

Peddle’s Charter argument, the sentencing judge was required to consider the constitutionalprecedents and follow this Court’s decisions in Parsons and White, unless “there is a change in the circumstances or evidence thatfundamentally shifts the parameters of the debate”: Bedford v. Canada (Attorney General), 2013 SCC 72, at para. 42. [66] There had to be evidence that, because of Mr. Peddle’s personal circumstances, the mandatory minimum period ofincarceration would offend the standards of decency or be intolerant to society. Without the requisite evidence, Mr.

Peddle could notmeet the high bar of satisfying a s. 12 breach.

(3) Did the sentencing judge err by relying on material facts not in evidence? [67] The sentencing judge relied on three essential facts to support his conclusion that the mandatory minimum incarceration wouldbe “grossly disproportionate” for Mr. Peddle: (

a) Mr. Peddle’s significant mental health concerns, including suicidal ideation; (

b) Prisonpsychiatrist, Dr. David Craig’s statement in another case before the sentencing judge that HMP is a not a therapeutic institution; and (c)HMP’s recent history of dealing with inmates with pervasive mental health disorders. (

a) Mr. Peddle’s Mental Health Concerns and Connection to the Offence [68] An offender’s mental health issues are a relevant factor when there is an established connection between the offender’s mentalhealth and the commission of the offence: R. v. Branton, 2013 NLCA 61, (at para. 34). The Crown submits that the sentencing judgeerred in his treatment of Mr. Peddle’s mental health concerns because there was no established connection between his mental healthcondition and the offence.

The sentencing judge rejected the Crown counsel’s submission on this point, and I find no error in his findingon the connection between Mr. Peddle’s health and the offence. [69] The sentencing judge stated: I find that the difficulty with this submission is that it ignores the evidence of Mr. Peddle’s anxiety together with his longstanding majordepressive disorder. It ignores the evidence of the situational triggers which lead him to self-medicate in the form of drinking heavily. [70] The evidence disclosed that the death of Mr.

Peddle’s mother-in-law and attendance at her grave triggered a mental healthepisode resulting in him drinking heavily and ultimately driving while under the influence. Dr. Mekawy testified on what caused Mr.Peddle to drink on the day of the offence. He confirmed he had not known Mr. Peddle to be abusing alcohol leading up to the incident,except for that day or a couple of days of drinking related to “some recent losses in his family.” [71] On appellate review, I must show deference to the sentencing judge’s factual finding concerning the causal connection betweenMr.

Peddle’s mental health and the commission of the offence. [72] However, I cannot show any such deference on the sentencing judge’s improper reliance on two essential factors not inevidence that led directly to his erroneous conclusion on the s. 12 violation. (

b) Prison psychiatrist, Dr. Craig’s Statement that HMP is a not a therapeutic institution [73] The sentencing judge erred in law relying on Dr. Craig’s statement made in the context of another case the sentencing judgedecided, and not in evidence. [74] He referred to the case of Justin Jennings and to information received from Dr. Craig in that case. He also referenced evidencefrom other HMP medical providers and the assistant superintendent of HMP that he had heard in the Jennings case, but was not evidencein Mr. Peddle’s sentencing hearing. [75] In the course of cross-examining Mr.

Peddle’s treating psychiatrist, the Crown asked if Dr. Mekawy was aware that an inmatecould have regular visits with the psychologist and psychiatrist. The sentencing judge interjected and stated: Well, I can tell you from my own experience that it can be done. It doesn’t necessarily get done. And if you can read my judgement onJustin Jennings to speak exactly about that and dealing with psychology at the penitentiary. And recommendations and treatment planswith Dr. Gill sending Mr. Jennings back to the penitentiary and having them completely removed by Dr. Craig.

That’s a one case dealbut I’ve sat through this and have a recent judgment that I’ve rendered on exactly that point, okay? When I decided to make a sentenceof time served as a result of the difference between the treatment as an inpatient and the outpatient, a denial of sending him forassessment when it was recommended in the first instance and then sent him out of an acute situation six weeks later. And what wassupposed to be a seven day assessment became seven weeks.

So, that’s my own information currently within the last 12 months at HMPas it relates to another inmate who frankly was not nearly as described as Mr. Peddle. Just so you know. So my information is prettycurrent. [emphasis added] [76] Although the sentencing judge stated, “you can read my judgment on Justin Jennings” and made reference to “a recentjudgment that I’ve rendered on exactly that point,” the record does not reveal that the parties had the opportunity to review the judgment. I note there is no reported case of the decision.

[ 77 ] The sentencing judge further stated in addressing Crown counsel: And if you haven’t read my comments on Jennings you need to, because the conditions at the penitentiary and what goes on down there needs to be a factor as you’re considering the exercise your discretion is what Dr. Craig would do if Mr. Peddle were to go inside. And I know from listening to all the evidence from Captain Gibbons the assistant superintendent Sam Martin, the prison psychologist, and reading the reports of Dr. Gill outlining the fact that his medication was all discontinued. Letters of Dr.

Craig which say specifically that the penitentiary is a penal institution not a therapeutic. That’s something that you need to do. His job is to protect other inmates from Mr. Jennings is what he said in that case as opposed to protecting Mr. Jennings who happened to be another inmate. So, I have major concerns and I’d hope you would have major concerns in those circumstances. [ 78 ] The sentencing judge returned to the Jennings matter during final submissions of counsel. The following exchange occurred with Crown counsel: The Court: Right and the reason I raised Dr.

Craig’s letter on Jennings to you is that letter hadn’t been written and if Judge Flynn was aware of that who knows what he would’ve done on Butler , but it would’ve been another factor to consider as to what was going down with a concrete piece of evidence of the attitude of the psychiatrist at the Penitentiary as it relates to incar – people who are incarcerated who had diagnosed mental illness. Crown: Your Honour, you keep going back to that letter, but that’s not evidence … The Court: It’s not evidence, but I can go to my – I can go to my decision. Crown: You can requote your decision for the law.

The Court: But it’s in – I can quote it for the law and I can indicate to you if I’m aware that this is something that the prison psychiatrist who’s still the same prison psychiatrist has written as a general statement of the role of the penitentiary; this is a penal institution and nota a therapeutic one, how di I divorce that from my thought process? That’s an opinion rendered by the only full-time prison psychiatrist at HMP. I can’t divorce myself from that when I know that is something that he has put in writing and I’ve had to adjudicate upon, right.

So like you know – if I make a decision at the end of the day and I’ve used that and you don’t like it, well that’s fine. I’ll have the Court of Appeal have a look at it. But the Court of Appeal can have a look at it, but it is a live issue, right, because it’s the first piece of concrete. Everything else that had been before us before it was anecdotal, that’s the first time I actually saw something in writing from the same person that seemed to offer something concrete as it related ot the doctor as opposed to just these stories Mr. Wentzell mentioned this morning.

Many lawyers come in and tell stories about that goes on at the Pen. Well yeah, sure, we hear that, and that doesn’t carry a lot of weight, but a letter from a prison psychiatrist which says exactly what I just repeated to you; that carries weight because it’s implanted and how do I get away from that. Position of Mr. Peddle on Dr. Craig’s Statement [ 79 ] Counsel for Mr. Peddle on the appeal candidly acknowledges that reliance on the statement of Dr. Craig is problematic. [ 80 ] Nevertheless, Mr. Peddle’s counsel seeks to draw a distinction between the sentencing judge’s specific reliance on Dr.

Craig’s statement, and matters described as falling within the realm of the judge’s personal knowledge of or familiarity with a particular matter. [ 81 ] Mr. Peddle submits that this Court treat Dr. Craig’s statement, about the prison being a penal institution and not a therapeutic one, like that special category of information of which a judge can take judicial notice. Mr. Peddle asserts that Dr. Craig’s statement is supported by general knowledge and common sense, and by the judge’s own personal knowledge gained through frequently hearing from counsel appearing before him in court.

Fundamental Problems with the Reliance on Dr. Craig’s Statement [ 82 ] There are five fundamental problems with the sentencing judge’s reliance on Dr. Craig’s statement. [ 83 ] First, the preconditions for taking judicial notice are not present. [ 84 ] The test for judicial notice is set out in R. v. Find , 2001 SCC 32 , at para. 48 : Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 85 ] The closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stringent test for judicial notice: R. v. Spence , 2005 SCC 71 , at paras. 53 and 61 . Dr.

Craig’s statement that the prison was not a therapeutic institution was clearly dispositive of the issue for the sentencing judge. He stated, “I can’t divorce myself from that.” [ 86 ] Second, despite the Crown’s objection that the letter was not in evidence, the sentencing judge did not provide Dr. Craig’s letter to counsel. The parties had no opportunity to examine Dr. Craig’s statement in the context of the entire letter, and the factual circumstances of that case. There is no evidence to establish whether the statement would also apply to Mr. Peddle upon his incarceration. [ 87 ] Third, Dr.

Craig was not a witness. The parties or the court never examined him on the statement and the impact it would have

for Mr. Peddle. [ 88 ] Fourth, without the benefit of the reasons for the judgment in Jennings , it is unclear why the sentencing judge takes issue with Dr. Craig’s statement. [ 89 ] Fifth, even accepting, as the sentencing judge erroneously did, Dr. Craig’s statement that the prison is not a therapeutic institution, prison authorities have a legal obligation to provide medical care to inmates. This includes, where necessary, psychiatric care and the ability to transfer inmates to a hospital: s. 19 , Prisons Act, R.S.N.L. 1990, c.

P-21 . [ 90 ] Prison authorities also have the ability to grant temporary absences, including for the full duration of the sentence, to inmates who have medical conditions: s. 25 , Prisons Act . [ 91 ] The sentencing judge failed to consider and apply Madam Justice Welsh’s comments in R. v. Butler , 2017 NLCA 69 , (at para. 15 ) “that prison authorities are required to provide psychiatric care for inmates where necessary.” [ 92 ] R. v. Butler also involved a s. 12 Charter challenge to a mandatory minimum period of incarceration.

The accused raised a similar argument concerning his mental health and anxiety caused by the thought of incarceration at HMP. The trial judge in that case ruled that the accused’s mental health issues could be addressed in the penitentiary. Flynn Prov. J. held ( R. v. Butler (2017), 149 W.C.B. (2d) 449, 398 C.R.R. (2d) 94 (N.L. Prov. Ct.), at para. 38 ) that: Communication to the prison authorities respecting Mr. Butler's issues, including concerns for harming himself, should address the noted concerns.

Once the mental health issues are at least addressed, the argument for a non-custodial sentence dissipates. [ 93 ] On the application for interim release pending appeal in Butler , Welsh JA denied the application because the appeal had no arguable basis or sufficient merit. One of the grounds alleged that the trial judge erred in reaching conclusion without evidence. Welsh JA held that it was sufficient for the judge to take judicial notice of the fact that prison authorities are required to provide psychiatric care for inmates where necessary. [ 94 ] The sentencing judge’s reliance on Dr.

Craig’s statement led him to rejecting the approach followed in Butler . The sentencing judge had no evidence that the prison authorities would not appropriately respond to Mr. Peddle’s mental health and risk of self-harm. Putting the authorities on notice, Welsh JA observed in Butler , indeed resulted in the offender’s transfer from the penitentiary to a mental health facility. (

c) HMP’s history of dealing with the mental health disorders of inmates [ 95 ] Finally, the sentencing judge supported his conclusion on the s. 12 violation by referring in his reasons to “HMP with its recent history of dealing with inmates with pervasive mental health disorders” in his oral reasons. It appears to be either a reference to his comments during submissions on the Jesso Report (Marlene Jesso, Michelle Hawco & Robert St.

Croix, Newfoundland and Labrador Corrections and Community Services: Deaths in Custody Review , December 12, 2018), or evidence from the Jennings matter. [ 96 ] The Crown argued there was nothing more than a theoretical risk of harm established by the evidence – the same theoretical risk that would apply to any offender with mental health issues sent into any institution. [ 97 ] The Jesso Report , documenting four recent in-custody deaths, warranted the serious consideration that Mr. Peddle’s counsel attached to it and the sentencing judge gave it. Mr.

Peddle’s counsel asserted in submissions at the sentencing hearing that to send Mr. Peddle to prison was “a death sentence” with the recent history of suicides in prison. [ 98 ] The error that the sentencing judge made was to assume and conclude Mr. Peddle likely would risk the same tragic fate, without any facts in evidence to support how the prison authorities would deal with Mr. Peddle in light of his suicidal ideations. There was no evidence on what, if any, action prison authorities took to act upon the recommendations in the Jesso Report , and whether this would ameliorate Mr.

Peddle’s legitimate concerns for his mental well-being. [ 99 ] Unlike Jennings , the sentencing judge had no evidence from Dr. Craig or any other prison authorities. [ 100 ] Furthermore, Dr. Mekawy confirmed on cross-examination he was not familiar with the operations at HMP, and any psychological or psychiatric supports that existed for someone posing a risk of self-harm. He believed, though, from his experience working in youth detention that a suicidal assessment would take place. Authority of the Sentencing Judge to Inquire and Correct Concerns for Mr.

Peddle’s Safety [ 101 ] With the concerns the sentencing judge had over Dr. Craig’s statement and the recent deaths in custody, he had the authority to bring Dr. Craig and other prison authorities before the court to satisfy and correct concerns for Mr. Peddle’s safety. [ 102 ] White JA in R. v. Taylor , 2013 NLCA 42 , at paras. 30-35 , addressed the power of the judge to “visit and inspect the penitentiary” under the Prisons Act .

Section 13 provides: “A judge of the Court of Appeal or the Trial Division, a justice of the peace or a member of the House of Assembly may, at reasonable times, visit and inspect the penitentiary.” Every provincial court judge “is, by virtue of the office, a justice of the peace”: s. 4(1) (d), Provincial Court Act , 1991, S.N.L. 1991, c. 15 . [ 103 ] The power to “visit and inspect” is not restricted to physical attendance of the judge at the penitentiary.

Justice White (at para. 35 ) stated: “I see nothing wrong in a judge, in the context of a specific sentencing hearing, deciding to seek specific information by requiring the superintendent or some other knowledgeable official to attend court and provide the relevant information in that manner instead.” [ 104 ] If the sentencing judge after hearing from Dr. Craig and prison authorities still did not have his concerns for Mr. Peddle’s safety

adequately addressed, then the evidentiary foundation may very well have justified the finding of a s. 12 violation. [ 105 ] I must now determine what effect the sentencing judge’s errors have for Mr. Peddle, given he has already served his conditional sentence and complied with all the conditions of the order. Credit for Time Served [ 106 ] Mr. Peddle is entitled to an adjustment credit of nine months for the time served under the conditional sentence, resulting in no time left to serve on his sentence: R. v. Tuglavina , 2020 NLCA 30 , at paras. 48 and 50 .

The Crown does not dispute that this is the proper consequential result of the varied sentence. CONCLUSION [ 107 ] The sentencing judge mentioned to counsel in his concluding comments that Mr. Peddle’s case was one of the most difficult cases he faced during his years on the bench. [ 108 ] I fully appreciate that the sentencing judge, with his experience dealing with the mental health issues of offenders before him and the publicly documented deficiencies at HMP, particularly the shortage of mental health resources, was genuinely concerned for the detrimental effect that incarceration would have on Mr.

Peddle, and was well-intentioned to impose a conditional sentence. Nevertheless, the errors I have identified resulted in an illegal sentence that on appellate review I am obligated to correct and set aside. DISPOSITION [ 109 ] I allow the appeal and vary the nine-month conditional sentence to a custodial sentence of the mandatory minimum 120 days. With credit for the nine months, I impose a sentence of time served. _________________________ GLEN L.C. NOEL Justice