Her Majesty the Queen v. James Gregory Foley LIBRARY HEADING Judge : The Honourable Justice A. David MacAdam, 2010 NSSC 449

SUPREME COURT OF NOVA SCOTIA R. v. Foley, 2010 NSSC 449 Date: 20101123 Docket: CRAD No. 316081 Registry: Annapolis Royal Between: Her Majesty the Queen v. James Gregory Foley LIBRARY HEADING Judge : The Honourable Justice A. David MacAdam Heard: November 23, 2010, at Digby, Nova Scotia Subject: Criminal law; sentencing; leaving the scene of an accident Facts: The offender ’ s vehicle struck a horse-drawn wagon and the driver was killed in the collision. He left the scene, but subsequently turned himself in to the police, after a delay. He was convicted under s. 252(1.3) (

b) of the Criminal Code of having care, charge or control of a motor vehicle that was involved in an accident and, with intent to escape criminal or civil liability, failing to stop his vehicle, give his name and address and offer assistance to the victim. Issue: What was the appropriate sentence? Reasoning: The sentence was to be determined on the basis of all the sentencing principles, and with reference to the offence for which the offender was charged and convicted.

The court would not speculate about additional offences with which the offender could have been charged, as it was within the Crown ’ s discretion to decide what charges to lay. Whether an offence was a “ serious personal injury offence ” for the purpose of ss. 742.1 and 752 of the Criminal Code , and therefore precluded a conditional sentence, had to be determined on the basis of the circumstances of the offence. On a charge under s. 252(1.3) (b), the conduct constituting the offence included the original accident, not simply leaving the scene.

It was the accident itself that endangered, or was likely to endanger, the victim ’ s life or safety, pursuant to s. 752 . As such, the offence was one for which a conditional sentence was unavailable in the circumstances.

The offender was 27 years of age, with a grade 8 education and a criminal record. There were aggravating and mitigating factors. The offender was sentenced to a term of imprisonment of one year, followed by one year ’ s probation. A three-year driving prohibition was imposed, and the court made a DNA order under s. 487.051(3). THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA R. v. Foley, 2010 NSSC 449 Date: 20101123 Docket: CRAD No. 316081 Registry: Annapolis Royal Between: Her Majesty the Queen v.

James Gregory Foley __________________________________________________________________ DECISION ON SENTENCING __________________________________________________________________ Judge: The Honourable Justice A. David MacAdam

Oral Decision: November 23, 2010, at Digby, Nova Scotia Written Decision: December 9, 2010 Counsel: Lloyd Lombard, for the Crown Darren Roderick MacLeod, for the Accused By the Court : THE OFFENCE [ 1 ] Mr. Foley was charged, and convicted at trial of having care, charge or control of a motor vehicle that was involved in an accident and, with intent to escape civil or criminal liability, failing to stop his vehicle, give his name and address and offer assistance to Bertram Hayden Hebb , a person who appeared to require assistance, contrary to s. 252(1.3) (

b) of the Criminal Code . Mr. Foley ’ s vehicle struck a horse-drawn wagon whose driver, Mr. Hebb, was killed in the collision. Mr. Foley left the scene, went home, covered his car with a tarp and returned to the scene, but went to see his girlfriend before turning himself in to the police. THE PRE-SENTENCE REPORT [ 2 ] Mr. Foley is 27 years of age, with a grade 8 education.

He has been previously sentenced for various offences, dating back to October 2001, including theft, possession for purpose of weapons trafficking, break and enter, failure to comply with a probation order, fraud in obtaining food or lodging, theft by forgery of a credit card, escaping or being at large and driving a motor vehicle without an appropriate license. [ 3 ] The probation officer interviewed Mr.

Foley, his mother, his girlfriend, his work supervisor, his former probation officer, a parole officer and the lead investigator for the RCMP in respect to this matter, and accessed file information from correction services. In summarizing Mr. Foley’s family background, apart from reporting his father’s excessive use of alcohol, and having little interaction with his father, there is little of relevance to explain his criminal history. He was described by his mother as extremely introverted, particularly since the commission of this offence. She also said he becomes frustrated easily.

She suggested that it might be beneficial for him to attend counselling. She could not offer any insight as to why he did not remain at the scene of the accident. [ 4 ] At the time of the accident Mr. Foley was employed. The probation officer contacted his work supervisor who characterized him as a dependable employee who was capable of working independently. [ 5 ] The report indicates that, with respect to mental health treatment, Mr. Foley admitted he may have issues to resolve as a result of the accident, but that he was not sure counselling treatment would help.

The probation officer also reported that he admitted he had no idea how to resolve his feelings surrounding the accident by himself. [ 6 ] Constable Goss, the lead investigator, reported that he was “really taken aback as well as disappointed in the subject’s apparent inability to show remorse.” He commented that Mr. Foley appeared to be more concerned with the condition of his motor vehicle than the condition of the victim. He offered no suggestions as to any programs that might be beneficial to Mr. Foley. Constable Goss’s observations would appear to be at least, in part, based on an interview with Mr.

Foley on the evening of the accident. The video- taped interview would appear to confirm the basis of Constable Goss’ observations. [ 7 ] The probation report concludes:

... The subject was at a loss to explain his actions which resulted in his conviction of the offence before the Court. Mr. Foley as well as most of the collateral contacts did not offer any suggestions toward corrective actions which would relate to his criminality. That said, his mother suggested counselling, not for the purpose of preventing further involvement with the law, but as a means to aid him in coping with the accident. [ 8 ] The report then suggests that Mr.

Foley might be a suitable candidate for community supervision and that it may be beneficial to include as a condition that he attend mental health counselling as required by his probation officer. THE PRINCIPLES OF SENTENCING [ 9 ] The purpose and principles of sentencing are outlined at ss. 718 , 718.1 and 718.2 of the Criminal Code , which provide as follows: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community..... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. .... 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender...;(

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

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

THE CROWN’S POSITION [ 10 ] The Crown submits that in view of the infrequency of persons being involved in more than one accident of this nature, general rather than specific deterrence is the primary objective in sentencing for this offence. However specific deterrence would relate, not only to the offender recommitting this particular offence, but to activity that is contrary to the Criminal Code generally.

As such I am satisfied that all of the principles of sentencing are relevant, and are to be considered, in assessing the fit sentence for this offence, in these circumstances, for this offender. [ 11 ] The Crown outlines various alleged aggravating factors in this case. These include the fact that a trial was required; that Mr.

Foley left the scene of the accident without determining if the victim required medical or other assistance; that he attempted to hide his vehicle by placing a tarp over it; that he later told a friend that he should have thrown the vehicle over a cliff; and that he knew the vehicle was not roadworthy and that it was uninsured at the time. Some of these factors are irrelevant. The accused, like all persons charged with offences in this country, is entitled to his day in court.

Although pleading guilty may be a mitigating factor, I do not accept that pleading not guilty is an aggravating factor. [ 12 ] In oral submissions Crown counsel indicated his agreement that pleading not guilty is not an aggravating factor. The Crown also suggested that if Mr. Foley had resided in another location instead of a “dead- end” road, he would likely have attempted to hide the vehicle and not come forward, thus avoiding detection.

On such speculation I place no weight whatsoever. [ 13 ] The Crown further submits, in written submissions, that “the accused could have been charged with either or both of dangerous driving or criminal negligence causing death. This would have been based upon the accused operating his motor vehicle at night without his headlights operating properly.

Although it is possible for the accused to have been charged with other offences, this case turns on the fact that the accused left the scene .... knowing that he had struck Bertram Hebb, or was reckless ....” It was the Crown’s option as to which offences to charge Mr. Foley with. Having only elected to charge him with leaving the scene of an accident, the Crown now appears to seek to have the court sentence him for offences of which, they suggest, he could have been convicted.

In my view, the accused must be sentenced for the offence that he has actually been convicted of, not on the basis of speculation about other offences with which he might have been charged. [ 14 ] The Crown’s written submission refers to a number of authorities involving the offence of leaving the scene of an accident.

However, with one exception, in each instance the offenders were convicted not only of leaving the scene, but also of offences relating to the accident itself, such as dangerous driving causing death, impaired driving causing bodily harm, criminal negligence causing death and impaired operation of a motor vehicle causing death. The exception is R. v. Yuzicapi , [2010] S.J. No. 217 (S.K.Q.B.) , where the accused had pleaded guilty to failing to stop at the scene and to obstructing justice by threatening a witness.

He was also convicted at trial of impaired driving. [ 15 ] The Crown seeks a sentence of five to seven years in federal custody. Counsel also suggests that it would not be inappropriate for this court to impose a penalty in the ten year range. THE DEFENCE SUBMISSION [ 16 ] Defence counsel suggests a sentence in the range of 6 to 18 months. Counsel notes that the Crown, "seems to have either substituted their view of the facts . . . or has asked (the court) to speculate as to what could have happened." Counsel suggests this is inappropriate.

I agree. [ 17 ] In respect to the authorities cited by the Crown, with the exception of R. v. Yuzicapi , supra , Counsel submits that they are largely irrelevant, for the reason discussed above. As to Yuzicapi , the Defence suggests the sentence imposed was, far beyond the usual range and was attributable to the fact that Mr. Yuzicapi was impaired by alcohol and had obstructed justice by threatening witnesses. He also did not turn himself in.

[ 18 ] The Defence refers to R v. West , [2010] N.B.J. No. 174 (N.B. Prov. Ct.) , where a vehicle carrying five people struck and killed a person in a motorized wheelchair. The trial judge found that there may have been speed involved, but there was no alcohol and no negligence. There was a suggestion that had the accused stopped, she may not have been charged with any offence. Instead, however, after speaking to her father and the passengers, she did not turn herself in, and the vehicle was to be taken out of the jurisdiction and repaired. However, an anonymous tip led to the interviewing of witnesses.

The incident occurred in August 2009 and it was February 2010 or later before the investigation was concluded. The Crown sought a sentence of two to two and one half years incarceration. The Defence submitted that one year would be an appropriate sentence and agreed that a conditional sentence was not appropriate. [ 19 ] The sentencing judge in West reviewed relevant caselaw, including R. v. Robillard , [2009] A.J. No. 410 (Alta. C.A.) , R. v. Doucet , [2009] A.J. No. 1401 (Alta. C.A.) , R. v. Rees , [1993] A.J. No. 700 (Alta. C.A.) and R. v. Zhang , [2007] B.C.J. No. 1530 (B.C. Prov. Ct.) .

She also referenced R. v. Hindes , 2000 ABCA 197 (CanLII) , [2000] A.J. No. 808 (Alta. C.A.) , R. v. Johnson , 2003 ABCA 62 , and R.v. Toms , 2009 ABCA 318 , in each of which the accused was sentenced to six months for leaving the scene, and R. v. Bockman , 2005 ABQB 918 , where an accused was found at fault due to alcohol impairment and where a motorcyclist was seriously and permanently injured. The accused fled the scene and was apprehended shortly after.

He was sentenced to one year consecutive for leaving the scene and 2 ½ years for impaired driving causing bodily harm. [ 20 ] In written submissions the Defence notes various other cases where the sentence for leaving the scene of an accident, including instances where the accident resulted in death, has been two years or less, and, in some cases, less than a year. In R. v. McAndrew , 2004 BCCA 368 , the offender received a sentence of six months incarceration for failing to remain at the scene of an accident, which involved a death. In R.v.

Brousseau , 2006 NLTD 104 , the accused pleaded guilty and was sentenced to eight months incarceration, to be served in the community as a conditional sentence, where the victim was not killed. In R. v. O'Flynn , 2005 ABPC 129 , the accident involved the death of one pedestrian and serious injury to another, and the accused was sentenced to two years less a day to be served in the community under a conditional sentence order. [ 21 ] There have been other instances of sentences of one year or less where the victim was killed. In R. v.

Johnston , 2003 ABCA 62 , a sentence of six months incarceration for leaving the scene was upheld by the Alberta Court of Appeal. In R. v. Taha , 2003 ABPC 2003 the court imposed a conditional sentence order of 12 months, and in R. v. Waddell , 2005 BCPC 302 , the accused was sentenced to a conditional sentence order of nine months. [ 22 ] Regardless of the offence with which Mr. Foley was charged, and convicted, the death of Mr. Hebb is a tragedy.

Although it can undoubtedly be said that the effects of any criminal activity could have been avoided if the criminal activity had not occurred, clearly, in this instance, Mr. Hebb’s death should never have occurred. Although not charged with any offence involving the condition of his vehicle, one might speculate whether with properly operating headlights, and, of course, providing that Mr. Foley was paying attention, the accident would ever have happened.

His death, notwithstanding the absence of any victim impact statements, has undoubtedly had a severe and lasting impact not only on his family, but on the community itself. Whether Mr. Foley is truly remorseful can be debated. Regardless of whether he committed any criminal offence in causing the death of Mr. Hebb, he did in fact cause his death. The absence of any charge, or conviction, for causing his death does not change that. However the only charge brought against Mr. Foley was for failing to stop at the scene of an accident, with intent to avoid civil or criminal liability contrary to s. 252(1.3) (

b) of the Criminal Code . It is for that offence he is to be sentenced. The wide disparity in the suggested range of sentences by Crown counsel and by Defence counsel must be considered in that context. [ 23 ] Support for the principle that an offender is only to be sentenced for the offence actually committed can be found in the following remarks in R. v. Deacon , 2004 BCCA 78 , 2004 CarswellBC 316 (B.C.C.A.) , where a long-term offender had appealed a sentence for breach of a supervision order. Smith J.A. said: "In conventional sentencing, the focus is on the criminal conduct that resulted in the offence actually committed; sentences imposed under

Part XXIII of the Code should not serve as a pretext for preventive detention" (para. 50). In addition, s. 718.1 contemplates that an offender is only to be sentenced for the offence committed, not for other offences counsel believes he could have been charged with. The degree of responsibility relates to the offence for which he is being sentenced, not for some other potential or possible offence. Although the Crown, in oral submission, appears to agree, the cases cited in both oral and written submissions would suggest that the possibility of Mr. Foley being guilty of an offence relating to the accident itself was an aggravating factor. THE CONDITIONAL SENTENCE OPTION

[ 24 ] The Defence, suggesting a sentencing range of between six and eighteen months, submits that a conditional sentence order is available and appropriate in the circumstances. The Crown, in addition to suggesting a much longer period of incarceration, says a conditional sentence order is neither appropriate nor available as a sentencing option. At issue is s. 742.1 of the Criminal Code , which came into force on December 1, 2007. In the Crown's submission it precludes a conditional sentence where a person is convicted of a serious personal injury offence, as that term is defined by s. 752 .

The relevant s.s read: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in s. 752 ... and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s.s 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under s. 742.3. [ 25 ] S. 752, defines “serious personal injury offence” in the following terms: “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in s. 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 26 ] An offence contrary to s. 252(1.3) (

b) carries a maximum sentence of life imprisonment. The requirement that the offence must be one for which the offender may be sentenced to imprisonment for 10 years or more is not in issue. [ 27 ] The Defence submits that “conduct” includes both the actus reus and the mens rea of an offence, and says the actus reus for the offence is leaving the scene of an accident and the mens rea is the intent to avoid liability. Counsel cites R. v.

Sigouin , 2010 QCCQ 4999 , to the effect that the charge of “leaving the scene after causing bodily harm” was not a serious personal injury offence as defined in s. 752 of the Criminal Code . The Crown relies on R. v. Lebar , 2010 ONCA 220 (CanLII) , [2010] O.J. 1133 (Ont. C.A.) , where, at paragraph 49 , the court discussed s. 752 and the definition of “serious personal injury offence”: In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence.

A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence". [ 28 ] The Crown goes on to cite R. v.

Nusrat , 2009 ONCA 31 (CanLII) , [2009] O.J. 120 (Ont. C.A.) , where the accused was convicted of criminal negligence causing death while street racing. The trial judge had imposed a conditional sentence of two years less a day. The offence date was June 18, 2007, prior to the Criminal Code amendments which came into effect on December 1, 2007, amending s. 742.1 to exclude “serious personal injury” offences from the imposition of conditional sentence orders. The court stated, at para. 33, that the new language of s. 742.1 would have precluded an offender convicted of criminal negligence causing death from being

eligible for a conditional sentence. [ 29 ] Again, the Crown is effectively taking the position that, although he was never charged with criminal negligence causing death, it is permissible to speculate that Mr. Foley would have been convicted of that or a similar offence related to the accident itself, and that he should be subject to sentencing provisions that would have been relevant to such offences. By this reasoning, because criminal negligence causing death would have precluded a conditional sentence, by virtue of s. 742.1, Mr. Foley would not be eligible for such a sentence.

The Crown’s submission is not persuasive. [ 30 ] However, in R. v. Morgan (2005), 2005 CanLII 7254 (ON CA) , 195 C.C.C. (3d) 408 , 2005 CarswellOnt 1048 (Ont. C.A.) , the Ontario Court of Appeal held that a charge of obstruction of justice constituted a serious personal injury offence on the basis that it was likely to cause serious psychological damage (para. 13). The court rejected the argument that the predicate offence must be an offence against the person.

MacFarland J.A. took the view that if Parliament had intended to limit serious personal injury offences to offences against the person, it would have said so (para. 11). In R. v. Thompson , 2009 ONCJ 359 , 2009 Carswell Ont 4648 (Ont. C.J.) , a robbery case, the sentencing judge cited Morgan in support of the proposition that "[t]here is a qualitative threshold to this term. It should not be simply assumed any robbery would or likely would inflict this type of damage" (para. 20).

As to whether the offence involved the use or attempted use of violence, the court held that it was not necessary for the essential elements of the offence to include violence or attempted violence. Robbery could be committed with or without the threat, or use, of violence. If these were not among the essential elements, it was necessary to consider the circumstances of the offence (paras. 21-31). In R. v. McLeod , 2010 ONCJ 354 , 2010 CarswellOnt 6209 (Ont.

C.J.) , another robbery case, the sentencing judge considered the circumstances and concluded that the robberies contained elements of the attempted use of violence and therefore constituted serious personal injury offences. In R. v. Barton , 2010 NBBR 51 (CanLII) , 2010 NBQB 51 , 2010 CarswellNS 70 (N.B.Q.B.) , the offender pleaded guilty to breach of recognizance and extortion, in connection with an incident in which the complainant was stabbed by a co-accused in the course of an attempt to collect a debt.

The court held that, while the offender had not actually done the stabbing, "he did attempt to recover a debt by threats of violence," and the victim impact statement suggested that the complainant "was psychologically traumatized by what was said and done to him" (para. 25). As such, a serious personal injury offence was established. [ 31 ] This line of cases suggests that it is not the specific elements of the offence that will determine whether it is a serious personal injury offence.

Rather, the sentencing judge must consider whether the circumstances bring the offence within the definition of a serious personal injury offence. To similar effect is the observation by A. T. Tufts, Prov. Ct. J., in R. v. Hendsbee , [2009] N.S.J. No. 466 , at para. 20 . After referencing s. 752 and the definition of "serious personal injury offence" he stated: This definition also serves as a threshold or gateway for applications for dangerous offender designations. Many cases interpreting this definition were decided in that context.

It is clear that "offence" is in "serious personal injury" refers to the factual circumstances of the offence instead of the legal character or type of offence. Accordingly, it is necessary to examine the underlying facts of an offence to determine if it meets the definition. The cases all support this conclusion. The issue here is whether the offence committed by Mr.

Hendsbee, in this case, involved "the use or attempted use of violence against another person or conduct endangering or likely to endanger the life or safety of another person or inflicted or likely to inflict severe psychological damage on another person" to use the words of the Criminal Code . [ 32 ] In addition to the persuasive authority of this jurisprudence, there is the wording of s. 752 .

In effect, the position of the Defence is that “endangering or likely to endanger the life or safety of another person” must be an element of the offence for which the offender is convicted, before s. 752 , and consequently, s. 742.1 can apply.

Although there are offences for which it can be said an element is “endangering or likely to endanger the life or safety of another person,” it cannot be said there is any offence for which an express element is “inflicting or likely to inflict severe psychological damage upon another person.” To interpret s. 742.1 to apply, and the requirement of “endangering the life or safety of another” as an element, rather than as a circumstance of the offence, would make the alternative of “inflicting or likely to inflict severe psychological damage” meaningless, in the absence of any offences for which it is an element.

As the cases above illustrate, neither robbery nor obstruction of justice require that either of these alternatives be present as elements. However, there are circumstances in which one or other may, in fact, be present. Had Parliament intended that when one or other is present, that an offender was still eligible to receive a sentence to be served in the community, where the other requirements for a conditional sentence order were present, it could have said so. [ 33 ] The Defence submits, relying on R. v. Griffin , [2010] N.S.J. No. 439 (Prov.

Ct.) , that the trial judge must determine whether the conduct constituting the offence endangered or was likely to endanger the safety of another person in the particular circumstances. This is correct as a statement of law, but the Defence is on less firm ground in submitting that “the conduct constituting the offence” is leaving the scene. In fact, the first element of the offence is the occurrence of an accident, in this case, one that caused death. Thus it is not leaving the scene that constitutes the conduct that endangered the safety of the victim, but the original accident.

[ 34 ] In the circumstances of this offence, a conditional sentence is not available to Mr. Foley. MITIGATING AND AGGRAVATING FACTORS [ 35 ] There are a number of aggravating factors. At the time of the accident, Mr. Foley’s vehicle did not have properly operating headlights, as the alternator was failing to re-charge the battery. Mr. Foley was aware of this failure, and although testifying that they headlights had not completely failed, he did not dispute that as they had previously that day, they were not fully operating at the time of the accident.

He also failed to turn himself in to the authorities and an acknowledge his involvement in the accident at the first opportunity. After leaving the accident scene he drove home, parked his vehicle and placed a tarp over it. Shortly after that, his mother drove him to the scene of the accident, at which time he walked by the scene and entered a vehicle driven by a friend in order to visit his girlfriend. He did not, at that time, advise the authorities of his involvement. Mr. Foley has a criminal record although, as noted, it is somewhat dated.

None of the offences relate to the operation of a motor vehicle, although one relates to driving without all necessary licenses. In this case, there was evidence that the vehicle was uninsured at the time of the accident. There is no offence directly related to criminal activity in the operating of the vehicle, as is this offence. They are therefore not directly related to the offence here involved. [ 36 ] On the other hand, there are a number of mitigating factors, including the fact that Mr. Foley did eventually turn himself in to the authorities.

The Crown suggests he really had no choice, but I am satisfied that by the time he entered his friend’s vehicle to visit his girlfriend, or shortly thereafter, he had decided to acknowledge his involvement, which he did shortly after visiting and advising his girlfriend of what had occurred. It was not the first opportunity he had, but nevertheless it is not an instance where the authorities had to come and find him, as was the case in many other cases, such as West , supra . Defence counsel notes, as other mitigating factors, that he is in a supportive relationship with his girlfriend and is employed.

Counsel also observes that there is no evidence of speed or alcohol been involved in the accident.

DNA ORDER PURSUANT TO S. 487.051(3) [ 37 ] In deciding whether to make an order, s. 487.051(3) provides that the court “shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.” [ 38 ] In R. v.Allison , 2009 NSSC 264 , Cacchione J. denied the Crown’s request for a DNA order on a secondary designated offence, holding that the procedure is invasive and courts should not routinely make such orders.

The Defence argues that Mr. Foley has “not been a problem in the community for a significant period of time other than the present offence before the Court,” and that there is no indication that he has been a problem in the community in the two years since the offence. It is submitted that his criminal record is largely irrelevant to this offence and that there is no basis to think it likely that his DNA would be of assistance in cold cases. [ 39 ] The Crown, in response, acknowledging this is a secondary designated offence, submits in the circumstances a DNA order is appropriate. On the other hand, in R. v.

Briggs (2001), 2001 CanLII 24113 (ON CA) , 157 C.C.C. (3d) 38 , 2001 Carswell Ont 2911 , the Ontario Court of Appeal noted that: In this case, the state's interest is not simply one of law enforcement vis-à-vis an individual - it has a much broader purpose.

The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted). [para. 22] [ 40 ] The court rejected the submission that the order should only be made where it was likely “that an offender has committed or will commit an offence in the future and that a sample of his DNA will afford evidence of commission of that crime” (para. 23). [ 41 ] In R. v.

Hendry (2001), 2001 CanLII 21168 (ON CA) , 161 C.C.C. (3d) 275 , 2001 CarswellOnt 4566 (Ont. C.A.) , the court summarized the conclusions in Briggs , in the following terms:

... In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person.

Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order. [para. 18] [ 42 ] The court also commented on the effect of the seriousness of the offence and the offender’s previous record: The court is also directed to consider the offender's record. If the offender has no prior record and the circumstances of the secondary designated offence are relatively minor, the court may be justified in not making the order.

However, particularly if the offender has a record that includes offences described as primary designated offences, I would think it exceptional that the order not be made. In general, the more serious the record the less likely the court could exercise its discretion against making the order. On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(

b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations. [paras. 24-25] [ 43 ] The Nova Scotia Court of Appeal took a similar view in R. v. Murrins , 2002 NSCA 12 , and R. v. Anderson , 2002 NSCA 42 . In R. v.

Garland , 2002 NSCA 112 , the Court of Appeal said: It is now clear from the cases that all of the purposes of the DNA provisions, and not simply the prospect of DNA identification in a particular case, must be borne in mind in deciding whether to grant or refuse the order. It is also clear that the facts that the offence is not at the most serious end of the range or is one that does not generally require DNA identification evidence do not trump due consideration of the other relevant factors.

The judge relied on these two factors in refusing the order, but did not consider the accused's lengthy record for violent offences (including assault causing bodily harm and sexual assault) or the complete absence of any evidence that the order would constitute more than a minimal invasion of the accused's privacy or security of the person.

With respect, he erred in principle by giving undue weight to the two factors that he mentioned in his reasons and in failing to consider the broader purposes of the provisions, the criminal record and the extent of the impact on the accused's privacy and security of the person. [para. 4] CONCLUSION [ 44 ] Having considered the principles of sentencing outlined in the Criminal Code , the aggravating as well as mitigating factors, at and following the commission of this offence, and the submissions of counsel, I hereby sentence Mr. Foley to a term of imprisonment of one year.

Further, upon completion of the term of imprisonment, I sentence Mr. Foley to a period of one year probation. [ 45 ] In addition to the compulsory provisions of a probation order, pursuant to s. 732.1(2) of the Criminal Code , Mr. Foley shall report to a probation officer, at the probation office in Middleton, Nova Scotia, remain within the Province of Nova Scotia, unless he first obtains written permission to leave, not have any contact with the family of the late Mr. Hebb, directly or indirectly unless specifically authorized in writing by the court. The family shall include Mrs.

Hebb, his son and his daughter-in-law. He shall make reasonable efforts to locate and maintain employment or training as directed by the probation officer and attend for mental health assessment or counselling as may be directed by the probation officer. [ 46 ] I impose a victim fine surcharge of $1000.00 to be paid one month before the expiration of the period of probation. [ 47 ] I impose a driving prohibition of three years, to begin at the commencement of the period of probation. If, and so long, as Mr.

Foley has not violated his probation order, and if his probation officer determines it is necessary for him to drive in order to be employed, he shall be permitted, once at the beginning of work and once at the conclusion of each working day, to drive for a period not exceeding 30 minutes from his residence to work and from his work to his residence.

[ 48 ] In view of the case law, I conclude that the DNA order requested by the Crown is properly made in the circumstances of this case. Mr. Foley had a prior record and the offence was a serious one. The opinion of the Appeal Courts suggest that it will be rare that the order is not made. As such, I make the DNA order in these circumstances. MacAdam, J.