Nova Scotia Court of Appeal
Citation: R. v. Denny, 2018 NSCA 11
Date: 20180131
Docket: CAC 464758
Registry: Halifax
Between:
Leroy David Denny
Appellant
v.
Her Majesty the Queen
Respondent
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Judges: |
Beveridge, Farrar and Scanlan, JJ.A. |
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Appeal Heard: |
January 19, 2018, in Halifax, Nova Scotia |
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Held: |
Leave to appeal granted and appeal allowed, in part, per reasons for judgment of Farrar, J.A.; Beveridge and Scanlan, JJ.A. concurring. |
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Counsel: |
Stephen M. Robertson, for the appellant Kenneth W.F. Fiske, Q.C., for the respondent |
Reasons for judgment:
[1] The appellant was charged with two counts of refusing the breathalyzer contrary to s. 254(5) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The offences occurred on August 1, 2015 and October 24, 2015 in Pictou County. The appellant pled guilty on December 21, 2015.
[2] On April 28, 2016, Judge Del Atwood sentenced the appellant to a one year driving prohibition, one day in custody time concurrently served in relation to both charges, and two $10.00 fines, one on each charge (reported 2016 NSPC 25).
[3] The Crown appealed to the Summary Conviction Appeal Court. The appeal was heard by Justice James Chipman on May 15, 2017. The SCAC judge rendered his decision that day, allowing the appeal and imposing a $1,000 fine in respect of each offence, a 12-month probationary period and a driving prohibition of 30 months (reported 2017 NSSC 127).
[4] Mr. Denny seeks leave to appeal and, if granted, appeals the order of the SCAC.
[5] For the reasons that follow, I would grant leave to appeal, and allow the appeal, in part, by backdating the driving prohibition to April 28, 2016, the date of the sentencing in Provincial Court.
Issues
[6] In his Notice of Appeal, Mr. Denny raises four grounds of appeal:
1. That the Learned Summary Conviction Appeals Judge erred in law in his analysis of the Provincial Court sentencing Judge’s taking notice of traffic volumes.
2. That the Learned Summary Conviction Appeals Judge erred in law in determining that the minimum fine must be imposed.
3. That the Learned Summary Conviction Appeals Judge erred in law in failing to apply the sentencing principles outlined by the Supreme Court of Canada in R. v. Gladue, [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, notwithstanding that he stated that he did consider them.
4. That the Learned Summary Conviction Appeals Judge erred in imposing probation on the Appellant where he had no current evidence before him to suggest that probation was still required one year after the Appellant’s sentencing on April 28, 2016 in Provincial Court.
[7] In his factum, Mr. Denny withdrew the second ground of appeal, conceding the SCAC judge did not err in determining that the minimum fine should be imposed.
[8] A fifth issue arose at the oral hearing in this matter which was not raised in the Notice of Appeal; that is, whether the SCAC judge erred in imposing a driving prohibition of 30 months commencing May 15, 2017. I will address this issue as an additional ground of appeal.
Analysis
[9] The standard of review is not in dispute. This Court summarized the standard of review in R. v. Pottie, 2013 NSCA 68 and concluded:
[17] Our jurisdiction is grounded in the error alleged to have been committed by the SCAC judge. It is not a de novo appeal from the trial judge. This Court must determine whether the SCAC judge erred in law in the statement or application of the principles governing its review (see Francis, ¶7; see also R. v. R.H.L., 2008 NSCA 100; R. v. Travers, 2001 NSCA 71; R. v. Nickerson, 1999 NSCA 168, ¶6). …
Issue #1 That the Learned Summary Conviction Appeals Judge erred in law in his analysis of the Provincial Court sentencing Judge’s taking notice of traffic volumes
[10] The appellant submits that the SCAC erred in finding the sentencing judge should not have taken judicial notice of facts not proven in evidence.
[11] In his decision the sentencing judge said the following:
[5] However, as with any offence, there are degrees of seriousness. In Mr. Denny’s case, both stops occurred during times of the day when traffic volumes would have been quite light, making the risk to the public reduced substantially. …
[12] At the sentencing, neither the Crown nor defence counsel made any comments or led evidence on the volume of traffic, vehicular or pedestrian, present at the time Mr. Denny was stopped by the police.
[13] The sentencing judge was not asked to take traffic volumes into consideration by any party. The traffic volumes were simply not an issue at the sentencing. Why the sentencing judge felt it necessary to refer to them and to take them into consideration as a mitigating factor in determining sentence is somewhat of a mystery.
[14] Further, his finding that the risk is somehow reduced when someone is driving while impaired at a time of day when vehicular traffic may be lighter is not supported by any evidentiary basis.
[15] The SCAC was justified in finding that the sentencing judge erred when he took judicial notice of traffic volumes and factored it into his sentencing decision (SCAC Decision, ¶28).
[16] I would dismiss this ground of appeal.
Issue #3 That the Learned Summary Conviction Appeals Judge erred in law in failing to apply the sentencing principles outlined by the Supreme Court of Canada in R. v. Gladue, [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, notwithstanding that he stated that he did consider them.
[17] The appellant argues the SCAC erred in failing to apply the sentencing principles outlined by the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee.
[18] Both the SCAC and the sentencing judge made reference to the Gladue and the Ipeelee factors in their respective decisions. The principles flowing from these cases are well-known. This case does not raise any issues unique to the application of those sentencing principles.
[19] Further, the appellant does not identify how the sentence would have been different had the principles been applied. In fact, the appellant agrees that the imposition of the minimum fines was appropriate in the circumstances.
[20] I would dismiss this ground of appeal.
Issue #4 That the Learned Summary Conviction Appeals Judge erred in imposing probation on the Appellant where he had no current evidence before him to suggest that probation was still required one year after the Appellant’s sentencing on April 28, 2016 in Provincial Court.
[21] The appellant argues the SCAC erred in imposing probation in the absence of any current evidence that probation was required, as more than one year had passed since his sentencing in Provincial Court.
[22] At the sentencing hearing, counsel for Mr. Denny (the same counsel on this appeal) suggested the appropriate disposition of the case was the mandatory minimum fine and “perhaps a period of probation”.
[23] Although some time had passed since those submissions on sentencing, I am not satisfied the SCAC committed a reviewable error by imposing a period of probation. The terms of probation are not particularly strict and at the time of this appeal, eight months of the 12 month probationary period have already been served.
[24] I would dismiss this ground of appeal.
Issue #5 That the Summary Conviction Appeal Court Judge erred in imposing a 30-months driving prohibition from the date of his decision.
[25] This ground of appeal was identified at the hearing of this matter and the Crown conceded that the sentencing judge erred by imposing a 30-month driving prohibition which started to run from the date of his decision, May 15, 2017. The Crown says the prohibition period should have started to run as of the original sentencing hearing date, being April 28, 2016. I am in agreement with the Crown on that point.
[26] As a result, I would allow this ground of appeal and vary the SCAC decision so that the 30-month driving prohibition will run from the date of the original sentencing April 28, 2016.
Conclusion
Leave to appeal is granted and the appeal is allowed, in part.
Farrar, J.A.
Concurred in:
Beveridge, J.A.
Scanlan, J.A.