R. v. Wolfe, 2022 NSSC 245

SUPREME COURT OF Nova Scotia Citation: R. v. Wolfe , 2022 NSSC 245 Date: 20220824 Docket: CRH 503204 Registry: Halifax Between: Her Majesty the Queen v.

Dana Matthew Wolfe SENTENCING DECISION Judge: The Honourable Justice Bodurtha Heard: August 22 and 24, 2022, in Halifax, Nova Scotia Final Written Submissions: July 26, 2022 (Crown brief) August 10, 2022 (Defence brief) Counsel: Eric Taylor and Janine Kidd, for the Crown Malcolm Jeffcock, Q.C., for the Defence By the Court (orally): Overview [ 1 ] On the morning of February 25, 2020, an intoxicated Dana Matthew Wolfe got behind the wheel of a car with his common- law partner Kelly Stewart to convince Jason Murphy to get in the car and return to the house with them.

Murphy had left his home, where he was renting a room to Wolfe and Stewart, after arguing with Wolfe over rent monies. [ 2 ] They caught up to Murphy and drove alongside him. More angry words were exchanged and Murphy told them he was kicking them out of the house. Enraged by these comments, Wolfe quickly accelerated the car and made a sharp turn towards Murphy intending to “psych” him out but not hit him.

However, due in part to the icy road conditions, the sudden anger experienced by Wolfe, and his intoxication, the car instead struck Murphy, resulting in his death. [ 3 ] This unintended action has had grave results for Wolfe and Stewart, and has caused unimaginable pain and heartache for Murphy’s family. The Crown and Defence on sentencing have submitted a joint recommendation for the Court’s approval. Background [ 4 ] Dana Matthew Wolfe has pleaded guilty to the offence of manslaughter contrary to

section 236 (

b) of the Criminal Code in the death of Jason Murphy on February 25, 2020 at or near Head of Jeddore, Halifax County, Nova Scotia. The Crown and Defence jointly recommend that Wolfe be sentenced to seven (7) years in prison less the appropriate credit for remand and ancillary orders. The ancillary orders are a mandatory DNA Order and a s. 109 Prohibition Order for life. The only item in dispute is the duration of the mandatory firearms prohibition under

section 109 of the Code . The Crown seeks life, while the Defence seeks 10 years. In addition, the parties seek a non-communication order with Brendan Murphy, Michael Murphy and Tiffany Murphy pursuant to s. 743.21 of the Code and a waiver of the victim fine surcharge. For the reasons that follow I accept the joint recommendation and order that the duration of the mandatory firearms prohibition be for life based on Wolfe’s prior convictions for violent offences and offences involving weapons.

Facts [ 5 ] On May 18, 2022, Wolfe pled not guilty to second degree murder, contrary to section 235(1) of the Code and pled guilty to manslaughter contrary to

section 236 (b). Wolfe’s plea to the offence of manslaughter is a plea permitted under section 606(4) of the Code and was made with the consent of the Crown. Following acceptance of the plea to manslaughter, this Court found Wolfe not guilty of the offence charged. [ 6 ] Core facts were presented to the Court when the guilty plea was entered for the purpose of

section 606 of the Code and the parties indicated that further facts would be provided at the sentencing hearing. [ 7 ] A pre-sentence report was ordered and the sentencing was adjourned to August 22, 2022. [ 8 ] The parties have provided the Court with an Agreed Statement of Facts, which reads: [1] On February 25, 2020, Dana Wolfe was renting a room with his common-law partner Kelly Stewart in Jason Murphy’s house in Head of Jeddore, just past Musquodoboit Harbour, Halifax County, Nova Scotia.

The three drank together the evening before, and in the morning Wolfe and Murphy argued over rent monies and Murphy taking some of Wolfe's and Stewart's possessions, Murphy left the house angry and began walking along the road which ran along the ocean. [2] Despite continuing to be intoxicated from their alcohol consumption of the night before, Wolfe and Stewart jumped in their car and followed, hoping to convince Murphy to get in the car and return to the house with them. Wolfe was driving and Stewart was in the front passenger seat. They caught up to Murphy and Wolfe drove alongside him.

More angry words were exchanged between Murphy and Wolfe, and Murphy told them he was kicking them out of the house. [3] Enraged by these comments, Wolfe quickly accelerated the car and made a sharp turn towards Murphy, intending to "psych" him out but not to hit him. However, due in part to the icy road conditions, the sudden anger experienced by Wolfe, and his intoxication, the car instead struck Murphy. The front right bumper of the car hit Murphy; causing injuries, and he was forced onto the hood of the car.

Wolfe applied the brakes but the car continued to move forward and slid into a guardrail at the edge of the road, and Murphy was pinned for a time between the car and the guardrail, causing further injuries. When the car moved Murphy fell onto the ground and under the guardrail. He died from his internal injuries at that time or within a few minutes afterward. [4] While Wolfe did not intend to kill Murphy, his action of driving the car quickly and suddenly towards Murphy while intoxicated, angry, and in icy driving conditions, amounted to an unlawful act that resulted in Murphy's death.

Pre-Sentence Report [ 9 ] A pre-sentence report was provided to the Court on June 17, 2022. The main points the Court takes from it are that Wolfe admits to having a temper but has never received anger management counselling. Wolfe admits to being an alcoholic and alcohol being involved in all his past troubles including the current offence. Wolfe believes he can control his alcoholism on his own but has never engaged in substance abuse counselling.

However, there is a note from his case manager at the facility that, “Dana Wolfe has completed SAM (Substance Abuse Management Program) program in December 2021.” There are no details provided. The Court hopes that in the future Wolfe will avail himself of the programming in a federal institution to address his substance abuse. [ 10 ] From the report it appears that Wolfe has little to no family support or community support. [ 11 ] The report does indicate that Wolfe expressed remorse for his actions stating, “it is the worst thing that could ever happen and I wish it never happened.

I have to live with it.” Victim Impact Statement [ 12 ] The victim’s father, Michael Murphy, provided a victim impact statement which reads, in part: …my life without my eldest son has made my life feel empty and traumatized, knowing that I will no longer see his smiling face, hear his voice or feel the warmth of his loving hugs. I have lost contact with friends, family and new relationships due to the fact I am afraid of emotional breakdown. I can’t explain all the true feelings I have, only another person that has gone through this will understand this feeling of loss, loneliness and emptiness.

I have forgiven the accused but overall I’ll never forget. All I want is justice, not revenge. I am now taking medication for my deep, deep depression, so I can try to face some sort of life. This depression, tiredness, restlessness, and the feeling of not protecting him enough makes it sometimes unbearable to make it through everyday life. [ 13 ] This unintended act has had a significant impact on the Murphy family, which was not lost on the accused when he spoke at the hearing. Allocution [ 14 ] Wolfe spoke at his sentencing hearing which is his right under

section 726 of the Code . He stated: Nothing I can do or say will bring Jason back. I can’t even begin to understand what I put his family through (and) their loss. I’m ashamed of my actions. I just wish that they can find it in their hearts to forgive me. … I just hope all the best for them. I’m so sorry. The Purpose and Principles of Sentencing [ 15 ] Sections 718 to 718.2 of the Code contain the fundamental purpose and principles of sentencing.

Section 718 reads: 718 The fundamental purpose of sentencing is to protect society and 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 followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. [16]

Section 718.1 outlines the fundamental principle behind sentencing and reads: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [17]

Section 718.2 contains the following relevant factors: 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 offenceor the offender, and, without limiting the generality of the foregoing, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … Analysis [18] Justice Arnold in R. v. C.S.Y., 2022 NSSC 122 outlined the relevant paragraphs regarding joint recommendations from theSupreme Court of Canada decision in R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, at para. 12: 12 In R. v.

Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, Moldaver J., speaking for the court, discussed the need forcourts to follow joint recommendations and the test to be applied by a trial judge when considering a joint recommendation: [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain. [35] Guilty pleas in exchange for joint submissions on sentence are a "proper and necessary part of the administration of criminal justice"(Martin Committee Report, at p. 290).

When plea resolutions are "properly conducted [they] benefit not only the accused, but alsovictims, witnesses, counsel, and the administration of justice generally" (ibid., at p. 281 (emphasis deleted)). . . . [44] Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of jointsubmissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of boththe public and the accused...

As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence andthe strengths and weaknesses of their respective positions. The Crown is charged with representing the community's interest in seeingthat justice is done... Defence counsel is required to act in the accused's best interests, which includes ensuring that the accused's plea isvoluntary and informed... And both counsel are bound professionally and ethically not to mislead the court...

In short, they are entirelycapable of arriving at resolutions that are fair and consistent with the public interest... [19] The legislated sentencing range for offences of this type is from 0 years to life imprisonment. However, as noted by Cromwell,J.A, (as he then was) in R. v. L. (N.A.), (1999), 1999 NSCA 41 , 172 N.S.R. (2d) 375, that the majority of cases fall betweenfour and ten years, at para. 14: [14] In my opinion, there is not a four to 10 year "range" for manslaughter if the word "range" is used to suggest that manslaughtersentences ought generally to fall within those limits.

Cases from this and other courts of appeal emphasize that manslaughter is an offencethat may be committed in an exceptionally wide variety of circumstances and for which the legal limits of possible sentences are verygreat: see, e.g. R. v. MacPhee (1977), 20 N.S.R. (2d) 520, 27 A.P.R. 520 (C.A.); R. v. McNeil (J.B.) (1998), (NS CA),168 N.S.R. (2d) 59, 505 A.P.R. 59 (C.A.). These factors combine to make it unusually difficult to establish any benchmark or range of fitsentences for such offences: see R. v. Selig (T.A.), [1994] N.S.J. 436; 1994 NSCA 197 , 134 N.S.R. (2d) 385, 383 A.P.R. 385(C.A.), at para 13.

As Kelly, J., said in R. v. Smith (B.W.), [1986] N.S.J. No. 424; (NS SC), 77 N.S.R. (2d) 142, 191A.P.R. 142 (T.D.), this court has observed that the great majority of cases in fact receive sentences between four and ten years, but thecourt has not held that manslaughter sentences should be restricted to or ought to fall within that range. The court has, for example,upheld sentences of 20 years and 15 years respectively in R. v. Julian (1973), (NS CA), 6 N.S.R. (2d) 504 (C.A.) andR. v. Gregor (1953), (NS CA), 31 M.P.R. 99 (C.A.).

I do not accept the appellant's argument that 10 years sets theupper limit, or that the period of between four to 10 years defines the acceptable range for manslaughter sentences.

[ 20 ] The parties have presented a joint recommendation. It is clear from their submissions that they have considered the relevant caselaw as it applies to the facts of this case in arriving at a joint sentence. They have taken into consideration the purpose and principles of sentencing, including the circumstances of Wolfe, general and specific deterrence, restraint and proportionality.

In addition, in reviewing Wolfe’s remand credit they have taken into consideration the effect Covid 19 has had on pre-trial detention at the Central Nova Scotia Correctional Centre. [ 21 ] I accept their submissions on the effects of Covid 19 on pre-trial detention at the Central Nova Scotia Correctional Centre and adopt Judge Buckle’s comments in R. v.

Robinson , 2021 NSPC 20 , at paras. 42-44 , in particular para. 44 where she states: … Conditions in facilities have not been static over the past year but, in provincial court, counsel and persons in custody regularly report these same conditions and some, such as the absence of programming are regularly included in pre-sentence reports. In these circumstances, I do not believe that evidence is required to establish that inmates of provincial institutions have, at times, experienced harsher conditions due to Covid.

These conditions would include reduced or no programming, less time out of one's cell and restrictions on visits. I accept that this has resulted in "harder time" for Mr. Robinson. [ 22 ] The parties have taken into consideration the “harder time” spent on remand by Wolfe. [ 23 ] Both Crown and Defence agree that this is a true joint recommendation that involved negotiations back and forth between the parties up to the 11 th hour. The sentence of seven (7) years in custody falls within the range of sentences for this crime.

It is a fit and proper sentence that is not contrary to the public interest and I see no reason to deviate from it. Conclusion [ 24 ] Wolfe has a significant criminal record, including convictions for violence and weapons offences, driving offences, offences involving the abuse of alcohol and drugs, and offences against the administration of justice.

This is not an aggravating factor but one I consider in determining the need for specific and/or general deterrence and rehabilitative prospects in the sentence ultimately imposed. [ 25 ] The following mitigating factors are applicable to Wolfe’s circumstances and I have taken them into consideration when reviewing the joint recommendation. Wolfe pled guilty to the offence before the Court well before the related charge was to go to trial. This spared valuable court time and resources, and spared the witnesses from having to relive the incident through the course of their testimony.

When Wolfe was interviewed by the police, he admitted many of the facts related to the current charge demonstrating an early acceptance of responsibility. These early admissions inform the Court of Wolfe’s prospects for rehabilitation. [ 26 ] Mr. Wolfe, please stand.

The joint recommendation is appropriate and I sentence you as follows: 7 years in custody equal to 2,555 days (365 x 7) without regard to leap years less remand time calculated as follows: • Remand credit from February 27, 2020 to August 23, 2022 = 909 days; • In relation to enhanced remand credits there is no evidence before me to justify limiting the credit to a lesser amount and, therefore, I grant credit at the rate of 1.5:1 = 1,363.5 days rounded up to 1,364 days • Additional credit for harsher remand conditions during Covid 19 pandemic = 100 days Total Time in Custody going forward is 2,555 days – 1,364 days enhanced remand credit – 100 days Covid remand credit = 1,091 [ 27 ] In conclusion, you will be sentenced to 1,091 days in custody going forward. [ 28 ] I grant the following ancillary orders: • Mandatory DNA • A

Section 109 Code Firearms Prohibition Order for life. [ 29 ] There will be a non-communication order pursuant to

section 743.21 of the Code prohibiting you from communicating directly or indirectly with Brendan Murphy, Michael Murphy and Tiffany Murphy, during the custodial period of the sentence. [ 30 ] Lastly, the victim fine surcharge is waived based on your financial situation. Bodurtha, J.