R. v. Polley, 2014 NSCA 71

Nova Scotia Court of Appeal Citation: R. v. Polley , 2014 NSCA 71 Date: 20140704 Docket: CAC 421160 Registry: Halifax Between: Stephen Daniel Polley Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: May 29, 2014, in Halifax, Nova Scotia Subject: Impaired Driving. Driving While Disqualified. Dangerous Driving. Circumstantial Evidence. Conclusions Based on Evidence vs. Conclusions Based on Speculation. Sentence. Consecutive vs. Concurrent. Judicial Discretion.

Summary: A van which had been reported to the police as veering in and out of traffic at high rates of speed left the highway, rolled over several times and ended up in a ditch. Concerned citizens who had placed 911 calls to the RCMP described seeing two male occupants, one driving the van and the other seated in the right front passenger seat. After the crash first responders saw one man getting out of the vehicle, bloodied and shaken, but able to stand. The other male was found lying on the ground, some 60 feet away, apparently knocked out but still alive.

He was the owner of the van and was charged with a series of drunk driving-related offences. The appellant did not testify or call evidence in his own defence. The central issue was identity. The Crown relied upon circumstantial evidence to prove that the appellant was in fact the driver of the van. He appealed both his convictions and the 5-year sentence. Held: Appeal dismissed.

The appellant’s “theories” that a mysterious “third man” could have been driving the van at the time, or alternatively that the other male was really driving but ended up in the passenger seat due to the forces of physics during the multiple rollover, were rejected as having no basis in fact and nothing more than idle speculation. A reasonable doubt based upon an inference unsupported by facts is an error in law.

In a thoughtful, comprehensive decision the trial judge carefully reviewed the evidence and explained how he arrived at the perfectly rational and logical conclusion that the appellant was driving the van and that he was drunk at the time. The judge stated and applied the law correctly. He made strong findings of fact. He drew reasonable inferences from those facts. He provided clear and cogent reasons to explain the basis for the verdicts. The convictions stand. Given the aggravating circumstances of this offence and this offender, the sentence of 5 years was entirely appropriate.

It properly recognized the principles of proportionality and totality, and reflected a wise exercise of judicial discretion in choosing to impose consecutive sentences for offences which were seen to constitute invasions of different legally protected societal interests. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 13 pages. Nova Scotia Court of Appeal Citation: R. v. Polley , 2014 NSCA 71 Date: 20140704

Docket: CAC 421160 Registry: Halifax Between: Stephen Daniel Polley Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Farrar and Bryson, JJ.A. Appeal Heard: May 28, 2014, in Halifax, Nova Scotia Held: Appeal against conviction dismissed; leave to appeal sentence granted but the appeal is dismissed per reasons for judgment of Saunders, J.A.; Farrar and Bryson, JJ.A. concurring. Counsel: H. Edward Patterson, for the appellant Mark Scott, for the respondent Reasons for judgment: [ 1 ] The gray colored van did not go unnoticed for long.

Motorists using the Trans-Canada Highway, reported seeing a vehicle being driven at high rates of speed, veering from lane to lane, and breaking in and out of traffic from the time the van was first observed crossing the New Brunswick-Nova Scotia border until it left the highway in a cloud of dust just prior to the Oxford exit, rolled over several times and ended up in a ditch. [ 2 ] Witnesses described seeing two male occupants, one driving the van and the other seated in the right front passenger seat.

Fearing the worst, some motorists had placed 911 calls to the RCMP in the hopes that risk of serious injury or death could be averted. [ 3 ] After the crash, people who stopped to render assistance saw one man get out of the front passenger seat, somewhat bloodied and shaken, but able to stand upright. He was later identified as Brian Purdy. The other male was found lying on the ground, along the treeline about 60 feet from the vehicle, apparently knocked out but still alive. He was later identified as the van’s owner, Stephen Polley. Both men emitted a strong smell of alcohol.

Police seized several empty as well as full beer cans and wine bottles from both inside the van, and the extensive debris field surrounding it. [ 4 ] The evidence established that on Saturday, May 20, 2010, Stephen Polley and his brother-in-law Brian Purdy had driven to Moncton, New Brunswick in Polley’s van where they worked on a drywall job together.

They then consumed a considerable amount of alcohol before leaving mid-afternoon to return to their home in Pugwash Junction, Cumberland County. [ 5 ] At the time of the crash the appellant was subject to an order prohibiting him from driving because of a previous impaired driving conviction. [ 6 ] Following this mishap Mr. Polley was charged with operating a motor vehicle while his blood alcohol concentration level exceeded the legal limit (s. 253(1)(b)); impaired driving (s. 253(1)(a)); driving while disqualified (s. 259(4)); and dangerous driving (s. 249(1)(a)).

The Crown proceeded by Indictment and the case was tried before Nova Scotia Provincial Court Judge Paul B. Scovil. [ 7 ] The appellant did not testify, nor call evidence in his own defence. The central issue was identity. The Crown relied upon circumstantial evidence to prove beyond a reasonable doubt that Mr. Polley was in fact the driver of the van. [ 8 ] As part of its case the Crown called Mr. Purdy. He professed not to recall who was driving the van at the time of the crash. He said he and Mr. Polley had been drinking alcohol at “some guy’s place” in Moncton.

He could not remember when they left, who was driving, or any of the events leading up to the incident. He said his next memory was standing in the ditch after the van had left the road. Witnesses at the scene identified Mr. Purdy as the man they saw seated in and getting out of the right front passenger seat, using the passenger side door. He was wearing jeans, a bloodied white t-shirt, and had blood on his right arm. Police photographs of Mr. Purdy taken later showed what was described as a seatbelt rash on his right shoulder and several cuts to his right arm and hand. Mr.

Purdy could not explain how those injuries arose. [ 9 ] After a 3-day trial the matter was put over for written submissions. Judgment was then reserved. Four months later Judge Scovil filed a very thoughtful and comprehensive written decision ( 2013 NSPC 38 ) where he dismissed the charge of “over .08” on the basis that the Crown had not presented any evidence in relation to Mr. Polley’s blood alcohol level at the time of the offence and convicted him on the three remaining charges: impaired driving, dangerous driving, and driving while disqualified. [ 10 ] The case was adjourned for sentencing.

A pre-sentence report was obtained. Counsel presented both written and oral submissions. Judge Scovil reserved his decision and later filed written reasons ( 2013 NSPC 95 ) sentencing the appellant to (in total) five

years imprisonment in a federal institution. [11] Mr. Polley now appeals his conviction complaining that the verdict is unreasonable and unsupported by the evidence and thatthe trial judge erred in admitting certain evidence and by ignoring or misapprehending other evidence. He also seeks leave to appeal andappeals his sentence saying that it is excessive and ought to be reduced to “something closer to the maximum three years” he asked for atthe hearing. He says the appeal should be allowed, his convictions quashed and an acquittal entered or in the alternative a new trialordered. Should the appeal be denied Mr.

Polley asks this Court to reduce his sentence by two years. [12] After carefully considering the record and counsels’ submissions I am satisfied there is nothing here which would warrant ourintervention. I would dismiss Mr. Polley’s appeal from conviction. While I would grant him leave to appeal sentence, I would alsodismiss the sentence appeal. [13] Reduced to its essentials the main thrust of the appellant’s conviction appeal is that Scovil, P.C.J. ought to have been left with areasonable doubt as to whether he and Mr.

Purdy were the only two people in the vehicle when it crashed, and that even if the judge wereright in finding that they were the only occupants, he was wrong to conclude that Mr. Purdy was the passenger and from that conclusiondeduce that the appellant had to have been the driver. [14] Respectfully, there is no merit to the appellant’s argument.

There is not a jot of evidence in the record to support the “theory”that some unidentified individual, a mysterious “third man” (who according to appellant’s counsel, may have run away, hid at the scene,or might still be unaccounted for) was driving the van at the time of the crash. Such a suggestion does not even reach the level ofspeculation, let alone anything which could be said to produce a reasonable doubt. [15] None of the witnesses who testified at trial ever said there were more than two occupants inside the van.

On this record itwould have been sheer speculation and error on the part of the trial judge to have acquitted Mr. Polley on the basis that some mysterious,unidentified and unaccounted for “third man” was at the wheel when the van left the highway. [16] So too counsel’s alternative hypothesis that simply because Mr. Purdy was identified as being the person seen seated in andgetting out of the passenger seat after the crash did not amount to proof that he was the driver when the van left the road – postulatingthat Mr.

Purdy “could” have been driving the van at the time of the crash but ended up in the front passenger seat due to the forces ofphysics during the multiple rollover, the same forces that “might” then have caused Mr. Polley to be catapulted from (so he says) thepassenger seat and thrown through the windshield where he ended up at the edge of the woods some 60 feet from the vehicle. [17] On this alternative “theory” the appellant says it was open to the trial judge to conclude that it was really Mr.

Purdy who wasdriving, with the appellant seated in the right front passenger seat, but that in the repeated rollover of the vehicle as it left the highway,Mr. Polley was ejected while Mr. Purdy managed to stay inside the van, yet was thrown from his position in the driver’s seat, over theconsole to the passenger seat, where he was later seen climbing out of the vehicle using the passenger side door. [18] Respectfully, such an hypothesis cannot be seriously advanced. There is nothing in this record to offer even the remotestsupport for the appellant’s fanciful suggestions.

To embark upon such idle speculation would constitute legal error. A reasonable doubtbased upon an inference unsupported by facts is a misapplication of the law. See for example, Belyea v. The King; Weinraub v. TheKing, (SCC), [1932] S.C.R. 279; Wild v. The Queen, (SCC), [1971] S.C.R. 101; R. v. Pham, (ON CA), [2005] O.J. No. 5127 (C.A.), aff’d 2006 SCC 26; R. v. White, 1994 NSCA 77 , [1994] N.S.J. No. 149(C.A.); and R. v. Currie, 2008 ABCA 374, leave to appeal ref’d [2010] S.C.C.A. No. 514. [19] The facts in White were not too unlike the circumstances in this case although the situation was reversed.

There a trial judgehad acquitted the accused on charges of driving while impaired thereby causing death, and driving with a blood alcohol level of “over80”. The Crown appealed. This Court allowed the appeal, set aside the acquittal and substituted a conviction of impaired drivingcausing death, declaring as well that a conviction for the underlying offence of impaired driving should have been entered by the trialjudge in any event.

Writing for a unanimous Court, Chipman, J.A., rejected the trial judge’s reasons for acquitting the accused (whichincluded the idea that the driver may have been over tired, or confused as a result of oncoming headlights, or travelling too fast, orinattentive) saying: [48] ...

In suggesting that the improper movements of the respondent's vehicle leading up to the accident were consistent with thefatigue, confusion or excessive speed or inattention rather than impairment or rather than those factors caused by impairment, he wasengaging in speculation which as a matter of law was not warranted on the basis of the facts found on the undisputed evidence.

When adriver who has been found to be impaired loses control of the vehicle with no innocent explanation other than conjecture not grounded inthe evidence, the causative link between the impaired driving and a death flowing from the resulting collision emerges in my opinionbeyond a reasonable doubt. ... [53] In my respectful opinion, these explanations for the respondent's driving consistent with other than a causal relationship betweenthe impairment and the mishap are not rational conclusions.

They are not based on evidence but based on conjecture and speculationtotally inappropriate to the evidence and the finding of impairment. In acquitting on the basis of these conjectures, the trial judge madean error of law. [54] In R. v. Dubois (1979), 1979 ABCA 230 , 49 C.C.C. (2d) 501 at 509 (Alta. C.A.), MacGillvray, C.J.A. whose reasonswere adopted by the Supreme Court of Canada in R. v. Dubois, (SCC), [1980] 2 S.C.R. 21 said: ". . .

I am respectfully of the view that the learned trial Judge's observations in the course of argument, taken with his reasons forjudgment, establish clearly that he failed to distinguish between a rational conclusion, based on evidence, and a conclusion based onconjecture and unsupported by evidence; and that this is an error in law, and that he misdirected himself." [55] At p. 509, MacGillvray, J.A. quoted with approval the following passage from R. v. McIver (1965), (ON SC),

1 C.C.C. 210 (Ont. C.A.) affirmed by the Supreme Court of Canada (1966), 2 C.C.C. (289) where McRuer, J. said: "The rule makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusionsalternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be arational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rationalone." [56] See also R. v. Paul (1975), 27 C.C.C. (2d) (S.C.C.); Wild v. R. (1971), (SCC), S.C.R. 101; R. v.

Bagshaw(1971), (SCC), 4 C.C.C. (2d) 303 (S.C.C.). [57] These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions fromthe whole of the evidence on the other. The failure to observe the distinction involves an error on a question of law. This Court istherefore empowered and obliged to intervene when such error has occurred. [20] Currie is another illustration of the bright line that must be drawn between rational, logical conclusions based on fact, andconclusions that are spawned by nothing more than idle speculation.

In that case Currie appealed from his convictions for aggravatedsexual assault and unlawful confinement. It was acknowledged that the appellant and the complainant had had consensual sex. Later theappellant admitted that he had beaten the complainant, but said he did so only to defend himself against her blows. He denied chasingafter her and said she left his apartment of her own accord. At trial the prosecution had led evidence that pieces of the victim’s chokerand her blood were found at a location where she said she had been recaptured by the accused as she attempted to escape.

On appeal theappellant argued that the trial judge had misconstrued the evidence in several respects including the location of blood and jewelry foundat the scene. He suggested that the blood found on the ground where the complainant said she had been recaptured “proved nothing”,because she admittedly went home by that route. Côté, J.A. rejected that suggestion as speculative saying: [20] However, also lying on that spot were pieces of a "choker" which the appellant had been wearing. Defence counsel said to us thatshe might have carried off those pieces and then dropped them there. Yes, she might.

So might a magpie or a squirrel. But it is muchmore likely that the choker came apart and the pieces fell during a struggle there, which struggle the complainant testified to and theappellant denied. This part of the defence argument falls into two errors. First, it assumes that confirmation or corroboration must be on avital point (which I reject above). Second, it assumes that reasonable doubt is to be tested piece-of-evidence by piece-of-evidence. It isnot, especially where circumstantial evidence is involved. Any one piece of Crown circumstantial evidence may leave a huge doubt.

Buteight or ten may yield an ironclad case for the Crown. See R. v. Morin, (SCC), [1988] 2 S.C.R. 345, 88 N.R. 161.[Underlining mine] [21] Quite apart from the legal error that would have occurred, had Scovil, P.C.J. based his verdict on such implausible conjecture,the evidence of witnesses at the scene belies the extraordinary hypothesis now relied upon by the appellant. For example, Ms. MichelleMacArthur described seeing the van passing her vehicle at a high rate of speed with two people inside, one driving and the other in thefront passenger seat. Mr.

Edward Hallihan and his wife saw the van cut in in front of them. The very next thing they noticed was acloud of dust up ahead. They came upon the scene and stopped to help. Mr. Hallihan ran down into the ditch where he saw one manwhose right arm was bleeding getting out of the passenger side of the vehicle. Mr. Hallihan said he checked for other occupants andlooked underneath the vehicle to see if someone might be pinned underneath. He did not see anybody.

He later observed a second male“10 or 12 feet up in the woods that was still breathing but unconscious”. [22] Their testimony was echoed by several other motorists, paramedics and police officers who had either stopped to help, or werethere to investigate the crash. Police and bystanders also confirmed the extensive debris field and the many empty as well as unopenedcans of beer and bottles of wine found at the scene. [23] From this evidence the Crown was able to establish a strong circumstantial case based upon the following facts.

The van andthe scene of the crash were littered with cans and bottles which had once (or still) contained alcohol. Both men had a strong smell ofalcohol on their breath suggesting that each had been drinking before or at the time of the crash. The appellant was found lying shirtlessand unconscious in the woods some 60 feet away from where the van came to rest. His brother-in-law Brian Purdy was seen seated inthe right front passenger seat and getting out of the van using that passenger side door. He was wearing a bloodied white t-shirt and hadmany lacerations to his right arm and hand, which he could not explain.

Photographs taken by the police showed blood on the inside ofthe right front passenger door and armrest. Such evidence, when taken together, would certainly be enough to lead Judge Scovil to theperfectly rational and logical conclusion that the appellant was driving the van when it left the highway and that he was drunk at thetime. [24] It was not the trial judge’s responsibility to reconstruct how this mishap occurred or explain the occupants’ kinesics during thecrash with scientific certainty.

His obligation was to decide whether the Crown had proved all essential elements of the offencescharged, beyond a reasonable doubt. He did exactly that. He stated and applied the law correctly. He did not misconstrue or ignorematerial evidence. He made strong findings of fact. He drew reasonable inferences from those facts. He carefully reviewed theimportant evidence and provided clear and cogent reasons to explain the basis for his conclusions. To illustrate I need only quote ¶7, 13-14 of his decision: [7] Circumstantial evidence must ground itself in the proper inference of facts.

Such proper inferences involved a deduction of factsthat may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the trial. Such aninference can only be made with objective facts from which one can infer the facts that are required to establish the proposition for whichthey put forward for.

The trier of fact here must caution himself that in order to find guilt on the basis of circumstantial evidence, thecourt must be satisfied beyond a reasonable doubt that Polley drove the van during the period in question is the only reasonable inferencethat can be drawn from that evidence. (See R. v. Griffin, 2009 SCC 28 , [2009] 2 S.C.R. 42) ... [13] An analysis of the above facts renders the following, which leads inexorably to the conclusion that the accused was the driver ofthe van. We know that there were only two occupants of the van. This is obvious from several witnesses independent of each other

reporting that they observed two occupants as the vehicle travelled the road. We can add that only two injured people were found at the scene, the accused and Purdy. One of these two had to be the driver. [14] Of the two, one was seen exiting from the passenger side of the vehicle. He wore clothes that matched those worn by Purdy. The individual had a bloody right forearm. Purdy had injuries to his right forearm and was described by several witnesses as bleeding from the forearm. The accused had no such injuries. The bloody forearm matched the bloody right passenger door armrest.

Purdy had a seat belt rash consistent with being seated in the right hand passenger seat at the time of the accident. The accused had injuries consistent with being ejected from the vehicle and was found 40 feet or more from the vehicle after it came to rest. There is no other rational conclusion than it was the accused who was driving the van at the time of the accident. [ 25 ] As I see it, Judge Scovil’s factual findings as well as the inferences he drew from those facts are sound. He properly applied the law to the evidence and issues before him. His analysis and conclusions are fully supported by the record.

Mr. Polley’s appeal against conviction is without merit and should be dismissed. [ 26 ] In terms of sentence there is nothing here which would cause me to question Judge Scovil’s exercise of discretion, impugn his analysis, or interfere with the sentence he imposed. Considering the circumstances of this offence and this offender, I think Judge Scovil’s reasoning and conclusions were entirely appropriate. He said: [3] The van that Mr.

Polley was driving was observed by witnesses travelling on the 104 Highway from Sackville, New Brunswick through to the crash site approximately two kilometres from Oxford, Nova Scotia. The highway traffic was very heavy. The driving by Mr. Polley, as described by witnesses, was nothing short of horrendous. He was observed pulling in and out of traffic at high rates of speed and in a manner that placed both himself and his passenger, as well as the public, in the path of imminent harm. Mr.

Polley lost control of the van after swerving in front of a tractor trailer and lost control, causing the vehicle to leave the highway, and pitchpole to a resting spot in the ditch adjacent to the 104. Polley was ejected from the vehicle, while his passenger remained buckled in the van. Neither Polley nor his passenger suffered any extensive injuries. That no one was killed or injured during the course of Mr. Polley's driving can be described as nothing short of a miracle. As indicated above, Mr.

Polley was prohibited from driving on the date in question as a result of a prohibition order originating from a previous impaired driving charge. ... [6] Before the court is a pre-sentence report indicating that Mr. Polley is a 41 year old male who resides in the Pugwash Junction area of Cumberland County, Nova Scotia. He is currently in a relationship with a common-law wife, by which he has had three children. His family background appears to be unremarkable. [7] Mr. Polley left school after repeating grade 7 twice.

He has engaged in a number of work training opportunities which have been obtained through various employee positions. He is currently employed with Tartan Interior Drywalling and has been so employed for the last five years. In that position he works as a drywaller. His health background is again unremarkable, save and except for alcohol related issues. He reports having spent seven days in a detox unit in Pictou County as a result of prior impaired driving convictions. He reports regular binge drinking, which he describes as typical. Despite that, he denied having a history of serious alcohol abuse.

Despite a number of impaired driving convictions, which will be described later, and the current offences for which he has been convicted, Mr. Polley continues to drink alcohol. He describes himself now as an occasional drinker. The accused expressed some remorse when interviewed in the pre-sentence report. ... [10] While not all of Mr. Polley's record is significant, the four prior impaired driving, three refusals of the breathalyzer and eight driving while suspended charges are of significance.

Additionally, his four prior provincial charges for illegal driving show a disregard for following laws related to keeping those individuals off the roads who hold no proper license. ... [12] Here, denunciation and deterrence are front and centre in sentencing Mr. Polley. Appeal courts across Canada have frequently commented on the ravages of impaired driving. Players in the criminal justice system know firsthand of the horrific consequences of the degree of impaired driving and dangerous driving that Mr. Polley exhibited. The record of Mr.

Polley shows that past sentences have done little to deter this specific accused from impaired driving and driving while prohibited. Clearly the only manner in which to give impetus to the principles enunciated above in the Criminal Code is for a court to impose a significant custodial sentence on this offender. ... AGGRAVATING CIRCUMSTANCES OF THE OFFENCES [15] There are a number of aggravating features which come into play when considering the offences before the court. These include the following: 1.

The evidence showed that the amount of traffic on the highway on the date in question was extremely busy even for a 100 series highway. It should be noted that all traffic exiting and entering the province of Nova Scotia funnels its way through the stretch of the 104 involved in this matter. 2. The extreme recklessness of the driving exhibited by the accused is another aggravating feature present here. 3. From the evidence obtained through Mr. Smith [sic], the passenger with the accused and who was consuming alcohol with the accused prior to the offence, the accused was in a highly intoxicated state.

4. Finally, one has to consider the extremely dismal record of the accused in relation to both impaired driving offences and those of driving while prohibited. 5. The accused reported a history of regular binge drinking, which he characterizes in his pre-sentence report as typical. Despite that, and despite his record and the obvious effect that would have on his life and that of his family, Mr. Polley denied a history of serious alcohol abuse. At sentencing, Mr. Polley indicated that he had virtually stopped drinking. In his pre-sentence report he indicates he drinks occasionally.

This can only indicate to the court that Mr. Polley has not come to recognize the extreme difficulties that his interaction with alcohol has on both himself, his family and the community. MITIGATING CIRCUMSTANCES OF THE OFFENCES AND THE OFFENDER [16] 1. There are no mitigating factors with respect to the circumstances of the offences before the court. 2. The accused maintained a steady employment record. ... [19] The courts regularly recognize that the imposition of a just and appropriate sentence can be an extremely difficult task.

It involves imposing a sentence that reflects the circumstances of the specific offence, the individual attributes of the offender before the court, and adherence to both statutory requirements and those precedents set out by the case law. There is no set formula for a court to follow, and in cases such as this, there is a wide range of sentences that may serve as guides.

As has been indicated earlier this sentencing is a delicate matter of stressing denunciation, deterrence, totality and proportionality. [20] In arriving at the following sentences, I have considered closely the circumstances of the accused, the specifics of the offence, statutory guidelines, case law and the submissions of the two counsel who appeared in the matter.

In stressing both specific and general deterrence, I impose the following sentences: CC 253(a) 2 years custody consecutive CC 259(4) 1 year custody consecutive CC 249(1) 2 years custody consecutive [21] The accused will therefore serve a five year period of custody in a federal institution. I will also prohibit him from driving anywhere in Canada, upon his release from custody, for a 20 year period. There will be a secondary DNA order as well. Both the prohibition of driving and the DNA order will attach to the 253(

a) count. [ 27 ] On appeal, Mr.

Scott for the Crown, properly acknowledged that Judge Scovil’s decision to impose consecutive as opposed to concurrent sentences did at least raise an arguable issue. [ 28 ] However, after taking into account the principles of sentencing together with the host of aggravating factors accounted for by Judge Scovil, including the appellant’s extensive criminal record and past convictions for drunk driving related offences, I am satisfied that the combined sentence of five years imprisonment was a fit and proper punishment under the circumstances. [ 29 ] Judge Scovil was obviously well aware of this Court’s decision in R. v.

Naugle , 2011 NSCA 33 , having referred to it three times in his reasons. For example, he noted at ¶14 of his sentencing decision: [14] The concepts of proportionality, totality, and concurrent and consecutive sentences in relation to cases of habitual impaired drivers were given a full review by Judge Hoskins of this Court in R. v. Naugle , [2010] NSPC 11. ... aff’d by R. v. Naugle , [2011] NSCA 33. [ 30 ] There, Beveridge, J.A. dismissed Naugle’s appeal from sentence and upheld the total effective sentence of 8 ½ years imprisonment imposed by Nova Scotia Provincial Court Judge Frank P.

Hoskins following convictions for driving while impaired, driving while prohibited, and leaving the scene of an accident with intent to escape civil or criminal liability. In that case Naugle was shown to have accumulated an appalling record of 22 drinking and driving convictions, 14 driving while prohibited convictions, one dangerous driving conviction and a slew of other Criminal Code offences.

This Court approved Judge Hoskins’ approach, satisfied that the sentence he imposed reflected a proper recognition of the principles of proportionality and totality, coupled with a sound exercise of judicial discretion in choosing to impose consecutive sentences for offences which were seen to constitute invasions of different legally protected societal interests. [ 31 ] I am satisfied that Judge Scovil had these same principles in mind when ordering that Mr. Polley’s sentences for impaired driving, driving while disqualified, and dangerous driving be served consecutively.

Each offence amounted to a violation of a different legally protected societal interest. As well, the appellant had been given ample other opportunities to change his habits, seek help and make amends for the serious risk of harm to the motoring public he created by his deliberate and reckless use of alcohol while operating a motor vehicle. As Judge Scovil said: [12] Here, denunciation and deterrence are front and centre in sentencing Mr. Polley. Appeal courts across Canada have frequently commented on the ravages of impaired driving.

Players in the criminal justice system know firsthand of the horrific consequences of the degree of impaired driving and dangerous driving that Mr. Polley exhibited. The record of Mr. Polley shows that past sentences have done little to deter this specific accused from impaired driving and driving while prohibited.

Clearly the only manner in which to give impetus to the principles enunciated above in the Criminal Code is for a court to impose a significant custodial sentence on this offender. [ 32 ] In conclusion, Judge Scovil was obviously satisfied that many of the same principles and factors that arose in Naugle applied to the circumstances of this case. I agree. He described Mr. Polley as having an “extremely dismal record ... in relation to both impaired

driving offences and those of driving while prohibited”; he was “in a highly intoxicated state” at a time when “the highway ... was extremely busy”; and was an offender whose “record ... shows that past sentences have done little to deter this specific accused from impaired driving and driving while prohibited”. [ 33 ] In such circumstances, the sentence imposed by Judge Scovil is clearly justified and secure against any variation on appeal. Conclusion [ 34 ] For all of these reasons I would dismiss Mr. Polley’s appeal against conviction. While I would grant leave to appeal sentence, I would dismiss that appeal as well. Saunders, J.A. Concurred in: Farrar, J.A. Bryson, J.A.