IN THE PROVINCIAL COURT OF NOVA SCOTIA
Cite as: R. v. Billard, 2011 NSPC 31
Date: June 10, 2011
Docket: 2275754, 2275756, 2275761
Registry: Halifax
Her Majesty the Queen
v.
Archie Albert Billard
SENTENCING DECISION
Judge: The Honourable Judge Anne S. Derrick
Heard: June 3, 2011
Decision: June 10, 2011
Charges: sections 259(4), 91(2) and 733.1(1)(a) of the Criminal Code
Counsel: Rick Miller - Crown Attorney
Nicole Campbell - Defence Counsel
By the Court:
Introduction
[1] On April 18, 2011, Archie Billard pleaded guilty to operating a motor vehicle while disqualified from doing so, possession of a prohibited weapon - a knife that opens with centrifugal force - and breach of a probation order made November 3, 2010 in Newfoundland. The Crown proceeded against Mr. Billard by indictment.
[2] Various materials were filed in advance of the sentencing hearing on June 3: a Crown brief attaching reports prepared when Mr. Billard was before the Youth Justice Court; case authorities; a Crown brief summarizing the cases and setting out the Crown’s submissions; a Defence brief attaching a recent case from the Ontario Court of Justice dealing with the issue of remand credit; an up-to-date psychiatric assessment for Mr. Billard; and a presentence report dated May 23, 2011.
[3] Crown and Defence are not agreed on what is an appropriate sentence for Mr. Billard. The Crown submits that the appropriate sentence is a two year sentence, less remand time, followed by three years probation. Defence argues that Mr. Billard, who has been on remand for 139 days, should receive 1.5 to 1 credit for pre-trial custody and that his sentence should be “time served” followed by a period of probation to be determined by the Court. The Crown does not oppose the application of a 1.5 to 1 remand credit ratio in Mr. Billard’s case, an issue I will address in due course.
The Facts
[4] The facts of the offences to which Mr. Billard has pleaded guilty were read into the record at the time of Mr. Billard’s guilty pleas. Some elaboration on those facts was offered by the Defence at the June 3rd hearing. The Crown did not object to my considering these additional details, provided by Mr. Billard via his counsel.
[5] On January 22, 2011 plainclothes police officers went to investigate a man they observed running into a parkade in downtown Halifax. They heard a vehicle start up in the parkade and head in the direction of the exit. It stopped just before the exit which is where Cst. Gillis was standing. The vehicle then reversed. Cst. Gilbert was behind the vehicle, commanding the driver to stop. The vehicle bumped into Cst. Gilbert. This did not result in any injuries to Cst. Gilbert who then took out his service pistol and commanded the driver to stop and get out. The driver, subsequently identified as Archie Billard, complied.
[6] Mr. Billard was not compliant with a direction to get down on the ground. To achieve this, he had to be restrained. The police officers noted that Mr. Billard was full of energy, not obeying orders, confused, and showing large dilated pupils. Although a strong smell of alcohol was detected and his eyes were extremely bloodshot, an eventual breathalyzer test produced a reading of 0 milligrams of alcohol in 100 millitres of blood. No Drug Recognition Evaluation (DRE) testing was done as there was no DRE officer available.
[7] When Mr. Billard was asked at the scene whether he had a driver’s license, he admitted to being “suspended.” A check on CPIC confirmed that he was prohibited from driving anywhere in Canada.
[8] Mr. Billard was arrested for impaired driving and searched. The vehicle was also searched. Various weapons were located in the vehicle: a pair of brass knuckles, dog pepper spray and a flip-knife. The vehicle had a smashed front windshield which would have obstructed the driver’s vision and made the vehicle unsafe to drive.
[9] Through counsel, Mr. Billard acknowledged that he had had one drink of alcohol on the night of January 22, a fact he admitted to the police in a statement he gave following his arrest. He denies using any drugs and the evidence does not establish that he was under the influence of or impaired by alcohol or drugs. The most that can be said is that he was agitated and behaving erratically when arrested.
[10] According to Mr. Billard he had been at a bar with friends, one of whom became very intoxicated. The reason Mr. Billard ran off to the parkade was to move the friends’ vehicle from its parking spot to a level closer to the entrance so that it would be more accessible. The drunk friend would then not have to walk as far. (Just to be clear, no one has suggested that the intoxicated friend was going to drive. The impression I have is that she could barely walk.) Mr. Billard has indicated that he did not have the parking ticket and therefore could not leave the parkade. When he bumped Cst. Gilbert with the vehicle, he was simply backing up. There is no suggestion Mr. Billard was intentionally trying to hit the officer and no charges of dangerous driving or assault of a police officer were laid.
[11] Mr. Billard concedes that the vehicle’s windshield was damaged but notes that the owners had been driving it during the month since that had happened.
[12] Mr. Billard’s guilty pleas acknowledge that he was driving while prohibited, had possession of the flip-knife, and was on a probationary condition to keep the peace and be of good behaviour.
Mr. Billard’s Criminal Record
[13] Mr. Billard is 22 years old with a birthday on June 21. He has a significant record although he has only appeared on five prior occasions for sentencing. On December 20, 2004, Mr. Billard was sentenced as a young person for 23 offences which included charges related to a number of car thefts he had committed in the preceding months. His offences began in April 2004 when he was 14 and ran through May, June, July and September of that year. On a number of occasions Mr. Billard’s offences involved stolen cars and high-risk, high-speed evasion of police.
[14] On December 20, 2004, Mr. Billard received a nineteen month probation order for offences of possessing house-breaking instruments, taking a motor vehicle without consent, possession of stolen property, theft, breach of an undertaking, evading police while operating a motor vehicle, and break and enter. The theft, on September 29, 2004, of a motor vehicle worth more than $5000 attracted a sentence of Custody and Supervision of 4 months and 9 days, also imposed on December 20, 2004.
[15] Mr. Billard received another Custody and Supervision sentence on March 21, 2005 when he was sentenced for taking a motor vehicle without consent on June 22, 2004.
[16] When Mr. Billard was sentenced on December 20, 2004, the worst imaginable consequence of his high-risk behaviours during that year had already happened. His apparent inability to resist the temptation to steal cars and, if spotted by police, take off at dangerously accelerated speeds had led to tragic consequences. On October 14, 2004 Mr. Billard stole a car and got stoned on marijuana with some friends. Evading police at high speeds he crashed into a car driven by Theresa McAvoy, killing her instantly. Sentenced as an adult on January 11, 2006 for criminal negligence causing death and evading police causing death, Mr. Billard received a five and a half year term of imprisonment. (With one year credited for remand, he faced an effective sentence of 54 months.) He was prohibited from driving for 10 years, an order that remains effective until July 12, 2020. (Tab J, Crown’s Brief dated April 13, 2011, Case Summary from October 5, 2009) It is this prohibition order that disqualifies Mr. Billard from driving.
[17] Mr. Billard spent from October 2004 until June 2009 first in the Waterville Youth Facility and then at federal penitentiaries in Springhill and Dorchester. On parole in Newfoundland he ran into trouble again. On October 5, 2009, he was arrested for driving while disqualified. He was sentenced on April 22, 2010 to four months, consecutive to any other sentence he was serving. The circumstances under which that four month sentence was served are unclear - although it appears he was back in custody for this offence from October 2009 to February 2010 - but sorting the issue out is not necessary for this sentencing. It is enough to know that Mr. Billard has a relatively recent prior conviction for driving while disqualified.
[18] Mr. Billard found himself before the courts again toward the end of 2010. On November 3, 2010, also in Newfoundland, he received a fine of $500 and two years probation for possessing stolen property.
Presentence Reports and Psychological Assessment (2004 and 2005)
[19] Mr. Billard’s history of conflict with the law has generated a significant amount of documentary material. I was provided with pre-sentence reports dated November 9, 2004, December 7, 2004 and February 21, 2005. I have also seen a psychological assessment dated December 16, 2004 that was prepared pursuant to section 34 of the Youth Criminal Justice Act. These reports detail an unsettled childhood with much moving about, emerging difficulties and conflict at home and problems in school, allegations by Mr. Billard of physical abuse in the home, group home placements and associations with other youth involved in crime and drug use. In the course of being interviewed for the 2004 psychological assessment, Mr. Billard reported having extremely poor concentration, being very restless and quite impulsive. He described driving as giving him the feeling of empowerment and control.
[20] The 2004 psychological assessment indicates a diagnosis in December 2004 of severe conduct disorder, attention deficit disorder and polysubstance dependence. The assessors concluded that Mr. Billard gained immediate gratification from stealing and driving cars, enabling him to achieve “a sense of control and empowerment he [did not] achieve in socially acceptable ways.” It was the view of the authors of the report that Mr. Billard experienced stealing and driving cars as “ …a means of stimulation and an escape from reality.”
[21] Utilizing language that was eventually taken as the title for the public inquiry into the circumstances that led to Ms. MacAvoy’s death, Mr. Billard’s behaviour was described in the November 9, 2004 pre-sentence report as having “…spiraled out of control.” The pre-sentence report went on to observe that “any attempt within the community to provide services to [Mr. Billard] and to place restrictions on him have been largely unsuccessful.”
Presentence Report of May 23, 2011
[22] The presentence report prepared for this sentencing notes that Mr. Billard has a Grade 7 education and is currently working toward the completion of his GED. I was informed that he has one course left. He reports having worked only as a cleaner during his incarceration and with a siding company installing siding when he returned to Nova Scotia from Newfoundland in November 2010. He was receiving a disability income while living in Newfoundland for what he described as “institutional disability.”
[23] In the presentence report Mr. Billard indicated that he does not use drugs and was not intoxicated at the time of the offences before the court. He has participated in counseling and treatment programmes including programmes for anger management and substance abuse. He has also attended programmes entitled, “Reasoning and Rehabilitation” and “Attitudes, Associates and Alternatives.” According to Mr. Billard, these programmes were beneficial as they gave him “new strategies for dealing with anger and coping.” Tellingly, when asked what would avoid future conflict with the law, he responded by saying: “stay away from cars.”
[24] Mr. Pictou, a friend of Mr. Billard’s for the past two years, was interviewed for the presentence report. Mr. Pictou had positive comments about Mr. Billard’s character describing him as “trustworthy, caring and a stand-up guy.” He indicated that Mr. Billard had “matured in jail…has no drug issues and his word is solid.” Mr. Pictou also ascribed qualities of sincerity and hard work to Mr. Billard. He sees Mr. Billard as someone who “likes to help people” but with a tendency to be “almost too helpful.” Mr. Pictou identified Mr. Billard’s needs as de-institutionalization, a job and support. He also said Mr. Billard “needs to help himself.” Obviously ongoing conflict with the law does not constitute helping himself.
[25] The Crown has submitted that I should completely disregard Mr. Pictou’s opinions about Mr. Billard because Mr. Pictou is, as the Crown puts it, “well known to the criminal justice system.” The Crown advises that Mr. Pictou has numerous convictions for breaches of court orders and obstructing police. In the alternative, the Crown submits that if I do take into account Mr. Pictou’s comments about Mr. Billard I should draw a negative inference from the fact that he is associating with someone like Mr. Pictou.
[26] In considering the role of Mr. Pictou as a reference for Mr. Billard in the presentence report, I have to appreciate that Mr. Billard has spent a significant amount of time locked up. That will have played a significant role in determining the pool from which Mr. Billard’s associates are drawn: it is a reality that Mr. Billard’s lengthy incarceration at a young age will have limited his circle of friends. This is an issue Mr. Billard is going to have to consciously and constructively address. Obviously he is better off with friends who are integrated into society as law-abiding citizens but, given the context in which he has been growing up, it would not be fair for me to simply ignore the comments of someone who knows him even if that person has his own chequered history in the criminal justice system.
[27] In any event, Mr. Pictou’s comments assist me in the difficult task of sentencing Mr. Billard only to a limited extent. I am not sure what to make of the language used by Mr. Pictou to describe Mr. Billard. Being “trustworthy” and “a stand-up guy” whose word is “solid” may indicate credibility for characteristics that are valued in the prison culture but do not reflect pro-social values. That being said, Mr. Pictou’s opinion that de-institutionalization, a job and support in the community will help Mr. Billard does strike me as a reasonable assessment of what Mr. Billard needs to get on his feet when he returns to the community.
[28] Mr. Pictou did make an observation of Mr. Billard that resonates in the facts of January 22. He described Mr. Billard as “almost too helpful.” Mr. Billard told the author of the presentence report that he was “just trying to help some friends who were intoxicated”, which is what was recounted at the sentencing hearing as I have already described. The events of January 22 starkly illustrate Mr. Billard’s willingness to help leading him to make a very poor decision.
[29] The May 2011 presentence report also contains comments from Jeff Mitchell, Mr. Billard’s parole supervisor in Newfoundland. Mr. Mitchell supervised Mr. Billard’s parole since June 2009. He described Mr. Billard as “open and honest, immature, a thrill seeker…easy to deal with, not a supervision problem.” He went on to note that Mr. Billard is “a very impulsive young person, he doesn’t think, but he is not aggressive.” Mr. Mitchell viewed substance abuse as “not a big issue” and identified counseling for “a pro-criminal attitude, impulsivity and thrill seeking and life skills” as likely to be of benefit to Mr. Billard. He has concerns about Mr. Billard staying out of trouble in a larger urban centre, describing him as “quite manageable in Burgeo” which is a small community on the south coast of Newfoundland.
[30] Although it is indicated in the presentence report that Mr. Billard reported as directed on both his parole and probation orders, he apparently left Newfoundland without notifying his probation officer or arranging to transfer his probation. Mr. Billard’s probation officer in Newfoundland indicates in the presentence report that breach of probation charges will be pending. Mr. Billard may yet have to face the consequences of not attending to certain obligations associated with his November 2010 probation order.
Dr. Scott Theriault’s Report – May 16, 2011
[31] Dr. Theriault, a psychiatrist well-known as the Director of the East Coast Forensic Hospital, was retained privately by Mr. Billard’s counsel to do a psychiatric assessment of Mr. Billard which has been provided to me for this sentencing. In Dr. Theriault’s opinion, Mr. Billard is not experiencing an acute psychiatric disorder presently nor was he on January 22, 2011. Dr. Theriault notes that Mr. Billard has a longstanding diagnosis of attention deficit hyperactivity disorder and “currently meets the criteria for antisocial personality disorder” although, Dr. Theriault states, “after a single interview with limited access to other sources of information its severity cannot be fully ascertained.” There is also nothing in Dr. Theriault’s report to explain what criteria were used in assessing Mr. Billard as having an “antisocial personality disorder”.
[32] Dr. Theriault’s report sheds some light on Mr. Billard’s incarceration between October 2004 when he was arrested following the fatal collision with Ms. MacAvoy and 2009. He was in custody at the Waterville Youth Facility from October 2004 until July 2007 when he was transferred to Springhill Penitentiary. In November 2007 he was transferred to Dorchester Penitentiary until he was released to Stephenville, Newfoundland on June 19, 2009. This represents nearly five years that Mr. Billard spent, from the ages of 16 to 21, locked up, including two years in federal penitentiaries.
[33] Mr. Billard advised Dr. Theriault that he moved from Newfoundland to Halifax in November 2010 with his common-law partner, Christine Sullivan, who wanted to return home. Living in Spryfield, Mr. Billard worked with a siding company for a short time, quitting the job in order to get time off to attend his grandfather’s funeral. When he returned to Halifax in January 2011, he was unemployed and looking for work.
[34] Mr. Billard told Dr. Theriault that he has been trying to deal with issues that were identified in his earlier reports and assessments. He reported abstaining from drugs and only drinking socially. He indicated that he is a calmer person now than he was as a teenager, is less impulsive and does not hold the antagonistic attitudes towards authority he once had. Distractibility is still an issue for him but he described being less restless and working off high levels of energy through exercise.
[35] Anxiety and feelings of discomfort in public settings are features of Mr. Billard’s psychiatric profile. He described to Dr. Theriault feeling “uncomfortable when out and about in the community, particularly when he is in crowds or other similar situations…he thinks that this is a sequelae of his years in custody.” This anxiety, which, according to Mr. Billard, was present on the night of January 22, 2011 but seems to be improving, is recognized by him as a condition requiring acclimatization, in the long run through a “gradual exposure to normal community life”. Dr. Theriault described Mr. Billard’s anxiety as “mild…primarily related to some social anxiety with associated avoidance. [Mr. Billard] does not show the features of generalized anxiety disorder…nor does he show the features of panic disorder.” Dr. Theriault further concluded that Mr. Billard does not manifest any evidence “suggestive of a psychotic disorder.”
[36] What Mr. Billard does appear to be manifesting are some signs of institutionalization. Dr. Theriault’s report documents Mr. Billard’s telling comments about feeling less anxious when in custody where “…he was familiar with everyone around him and their likely actions.” References by Mr. Billard’s parole supervisor in Newfoundland to him having a “pro-criminal attitude” and Mr. Pictou’s description of Mr. Billard being “a stand-up guy” whose word is “solid” are also indicative to me of the effects that incarceration has had on Mr. Billard.
[37] In Dr. Theriault’s opinion, Mr. Billard does not require any acute psychiatric services. He did recommend however that Mr. Billard would benefit from “further services directed at those issues that often underpin criminal activity; that is, he would benefit from upgraded education, vocational training and placement, stable housing, avoidance of antisocial peers or friends and abstinence from drugs and alcohol.”
Remand Credit Issue
[38] I will next be discussing a number of sentencing principles but before I do, I am going to address the time Mr. Billard has spent on remand. Both Crown and Defence acknowledge the relevance of remand credit to this sentencing. The Crown indicates that a fit and proper sentence of two years should be reduced by the time Mr. Billard has been in pre-trial custody. The Defence submits that the remand time represents the extent of the custody Mr. Billard should experience as a consequence for his offences. The Defence, relying on R. v. Johnson, a decision of the Ontario Court of Justice ([2011] O.J. No. 822) argues that Mr. Billard’s time on remand should be calculated on the basis of 1.5 days for each day spent in custody.
[39] The Crown, addressing the applicability of the Johnson decision, indicated an acceptance of the rationale in Johnson and offered no objection to the enhanced ratio being applied in Mr. Billard’s case. He did not suggest that Mr. Billard was, for any reason, ineligible for the application of the 1.5 to 1 remand credit.
[40] The remand credit issue is governed by sections 719(3) and 719(3.1) of the Criminal Code, recently interpreted in Johnson. As it happens, I considered and adopted the Johnson reasoning in R. v. Dann, [2011] N.S.J. No. 217. The following are the relevant portions of my discussion in Dann of the remand credit issue:
31 Justice Green brings a sharp and learned focus to the language in section 719(3.1) which provides that "if the circumstances justify it", a ratio of 1.5 days for each day in custody can be credited to a prisoner on remand. He says the following at paragraph 162 of his meticulously reasoned decision:
As I see it, the central issue comes down to the meaning of those five words that span the 1:1 and 1.5:1 regimes: "if the circumstances justify it." Applying the appropriate cannons of statutory interpretation, and read in the sentencing framework in which it is embedded, the word "circumstances" in this phrase includes the loss of remission and delayed parole eligibility which, in turn, "justify" a credit enhancement beyond a maximum ratio of 1:1.
32 Justice Green goes on to say at paragraph 164:
Loss of remission readily lends itself to quantitative assessment and remuneration on sentencing. The effort to offset this relative disadvantage inspires the application of a compensatory arithmetic formula.
33 Loss of remission is a significant issue for the remanded offender. Justice Green heard uncontradicted evidence that "... almost all offenders sentenced to imprisonment in Canada serve no more than two-thirds of their sentence in custody." (paragraph 56) This is due to remission of sentence which the great majority of offenders receive. Justice Green referred to the uncontradicted testimony of the eminent criminologist, Professor Anthony Doob: "Although prisoners can lose remission for disciplinary infractions while in custody ... this is a 'very, very rare' occurrence." (paragraph 56)
34 Prisoners in pre-trial custody do not however earn remission…
…
36 As noted by Justice Green in Johnson, "... the award of credit for pre-sentence custody remains discretionary ..." He acknowledged that offenders who "deliberately protracted their remand detention or otherwise endeavoured to manipulate the system ..." may well have their credit ratio discounted as may offenders who "are likely to remain incarcerated until their warrant expiry date" or are doing remand time that is "of negligible value in light of the sentence imposed ..." In such cases, Justice Green observes, "... judges may well entirely disregard credit for pre-sentence custody as the logic of compensation no longer holds." (paragraph 165)
37 Justice Green's reasoning on the application of section 719(3.1) for the vast majority of offenders makes for a persuasive and compelling case that the loss of remission experienced by remanded offenders constitutes the "circumstances" that "justify" compensation by way of an enhanced remand credit ratio. (paragraph 166) Justice Green's conclusion that loss of remission is "an almost 'universal' consequence of any pre-trial custody" is indisputable. (paragraph 167) I also find persuasive Justice Green's determination that "The loss of remission calculation most closely (if not perfectly) translates...into a pre-sentence custody credit ratio of 1.5:1." (paragraph 172)
38 Justice Green also comments on the settled law that "provisions in penal statutes, when ambiguous, should be interpreted in a manner favourable to the accused." (R. v. Wust, [2000] S.C.J. No. 19, paragraph 34) He makes the following finding, with which I agree:
The "liberty of the subject" is impacted by the amendments to s. 719. There are "real ambiguities, or doubts of substance" in the construction of the critical phrase in sub-s.(3.1). In my view, the "favourable interpretation" that follows application of this principle is one that contemplates the loss of remission by remand offenders as part of the "circumstances" that "justify" enhanced pre-sentence custody credit at a ration of up to 1.5:1. Any other reading results in systematic and fundamental unfairness. (paragraph 175)
39 I adopt Justice Green's conclusion in Johnson that the functions of sections 719 and 719(3.1) are "primarily compensatory" and that the "circumstances" in section 719(3.1) "comprehends the loss of remission and delay in parole eligibility." And I share Justice Green's assessment that,
... sentencing judges have discretion to grant credit for remission and parole loss of up to one and a half days for each day spent in pre-trial custody. The maximum ratio available under this regime affords quantitative compensation for the very vast majority of offenders who receive sentences of incarceration ... any quantitative credit authorized by s. 719 is, at the end of the sentencing exercise, deducted from an otherwise fit sentence. (paragraphs 198 and 199)
[41] I once again adopt the Johnson reasoning and confirm, in the context of Mr. Billard’s case, the appropriateness of a 1.5 to 1 credit for remand time.
[42] The calculation of Mr. Billard’s remand time therefore is 139 days x 1.5 to equal 209 days (I have rounded up 208.5 days) or, making the calculation using months, 4 months and 18 days which, with the enhanced credit equals 6 months and 27 days.
[43] The application of the enhanced remand credit to the Crown’s recommended sentence of two years would leave Mr. Billard with 17 months and 3 days to serve. The Defence position is that what Mr. Billard has already served, in effect, nearly seven months, should represent the full extent of his custodial sentence.
The Purpose and Principles of Sentencing
[44] Sentencing has been explicitly recognized as a “profoundly subjective process.” (R. v. Shropshire, [1995] 4 S.C.R. 227, paragraph 46) Determining “a just and appropriate sentence is a delicate art” which requires the careful balancing of “the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” (R. v. M. (C.A.), [1996] S.C.J. No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation. Regard must also be had to all the circumstances of the offence and the offender. (R. v. Nasogaluak, [2010] 1 S.C.R. 206, paragraph 44; R. v. Naugle, [2011] N.S.J. No. 165 (N.S.C.A.), paragraph 45)
[45] The purpose of sentencing as set out in section 718 of the Criminal Code is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…” The objectives of those just sanctions, relevant to this sentencing, are:
(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;
(f) to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community.
[46] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the
offender. (section 718.1, Criminal Code; R. v. Naugle, [2011] N.S.J. No. 165 (N.S.C.A.), paragraph 31) In other words, the “severity of sanction for a crime should reflect the…seriousness of the criminal conduct.” (R. v. Arcand, 2010 ABCA 363, paragraph 48) Arcand, a recent and comprehensive analysis by the Alberta Court of Appeal of the purpose and principles of sentencing, also notes that as just sanctions are the “goal of sentencing, proportionality must be the overarching principle since a disproportionate sanction can never be a just sanction.” (Arcand, paragraph 52) Arcand recognizes that the disproportionately high sanction is not the only sentence that fails to satisfy the proportionality standard; it is also the sentence that does not adequately speak to the serious nature of the offence. (Arcand, paragraph 54)
[47] Arcand also unpacks the meaning of “gravity of the offence” determining that it has two aspects: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. (Arcand, paragraph 57) In Mr. Billard’s case, his offences, particularly the driving while disqualified and the breach of probation, constitute offences that show a disregard for court orders imposed on him to protect society and, in the case of probation, to support his rehabilitation. Mr. Billard’s rehabilitation is critical to disrupting his tendency to break the law, a tendency that carries a risk to the public.
Assessing the Seriousness of the Offences and Mr. Billard’s Culpability
[48] The offences Mr. Billard has pleaded guilty to are very serious. Mr. Billard was prohibited from driving because he was criminally negligent in the operation of a car and killed someone. When the offences before me were committed, Mr. Billard had fairly recently (November 3, 2010) been placed on probation requiring him to keep the peace and be of good behaviour which he obviously failed to do. Mr. Billard has a high degree of responsibility for the commission of these offences: he knew he should not be operating a motor vehicle but he went ahead and did it anyway. As he said in his presentence report interview, “I know I shouldn’t have been driving.” He would have known keeping the peace and being of good behaviour as required by his probation order meant he had to obey the law but he rationalized his actions at the time; he was just helping out some friends.
Additional Sentencing Guidance – Relevant Principles and Factors
[49] With proportionality as the guiding principle of sentencing, the Criminal Code (section 718.2) also directs judges to take into account a number of other considerations. These are aggravating and mitigating factors, and the principles of parity, restraint and totality. Additionally there is the issue of how the Criminal Code views imprisonment as a sentencing option - as a last resort. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. (sections 718.2(d) and (e), Criminal Code) Arcand notes that restraint, as illustrated by sections 718.2(d) and (e), “do not conflict with the proportionality principle” but is “firmly imbedded within, and central to [proportionality].” (Arcand, at paragraph 62)
[50] I will turn now to a discussion of the various factors I must consider and balance.
Mr. Billard’s Prior Record and Driving History
[51] Mr. Billard’s prior record is an aggravating factor in this sentencing. Related to this is the aggravating factor of the predicate offence which led to the ten year driving prohibition he has violated. It is particularly aggravating that Mr. Billard violated his driving prohibition quite early in the term of the order, and for a second time. Mr. Billard was released back into the community from prison in June 2009. Only a few months later, in October 2009, he was caught driving.
[52] Mr. Billard’s failure to accept that he cannot drive, for any reason, continues to compromise his ability to lead a law-abiding existence. The facts of this latest incident indicate that Mr. Billard was once again willing to take the wheel of a vehicle when prohibited from doing so. He did not stop when confronted but backed up and then had to be ordered out of the vehicle. Presumably he did not comply with police commands at first because he recognized the consequences he was about to face. To his credit, he did not try to take off.
[53] Mr. Billard’s past history of very dangerous driving behaviour, involving high speed, and reckless efforts to outrun police is a factor in my assessment of his sentence for once again driving while prohibited to this extent: Mr. Billard’s lack of compliance during his January 22 arrest – refusing to get on the ground as directed – and his confused and agitated state, taken together with his history raise the concern that had Mr. Billard decided to take the vehicle on to the street, a dangerous situation could have developed.
[54] However it is significant that in this case Mr. Billard did not drive into the street and has said, through counsel, that it was not his intention to do so. I have no basis for disbelieving him on the facts I have been provided and note that his parole supervisor, who has known him for nearly two years, described him as “open and honest.”
[55] So while Mr. Billard’s prior record and driving history are relevant considerations in this sentencing exercise, it would be unfair to equate his driving in this case with his driving in the past or even his driving in October 2009 when he was pulled over by police in Newfoundland. On neither occasion did Mr. Billard engage in the driving behaviours that brought him before the courts as a youth. The same recklessness and defiance that he showed in the past was not present in October 2009 and January 2011, which points to him maturing and developing greater self-control, as he reported to Dr. Theriault.
[56] This is not to overlook the fact that Mr. Billard did reverse into Cst. Gilbert, which is an aggravating dimension of the January 22 offence.
[57] It is essential to emphasize that fixing an appropriate sentence for Mr. Billard is not an exercise in sentencing him again for previous offences. This point has been made by various courts, including the Alberta Court of Appeal in R. v. Yazlovasky, [2004] A.J. No. 1505:
…We do not think that the sentencing judge erred in considering [Mr. Yazlovasky’s] previous driving record and specifically the criminal negligence causing death conviction as an aggravating factor. It provides a context in which the driving prohibition was made and later breached. And, as well, [it] is relevant to the offender’s risk of re-offending. The sentencing judge did not err in considering this driving record. She was clear to point out that she was not re-sentencing the offender for his previous crimes. (paragraph 5)
Disregarding Prohibition Orders
[58] Mr. Billard’s decision to drive on January 22 does however show a continued disregard for the court order that prohibits him from driving under any circumstances. He seems to be slow in grasping that he is required to comply strictly with that order and has shown an intolerable disrespect for the law. Before the order was even two years old, its effective date being once Mr. Billard was released on parole, Mr. Billard had breached it twice. This is not like Mr. Taylor, the offender in one of the cases provided by the Crown, who was in his final year of a 10 year prohibition.
[59] It is the Taylor case I just mentioned ([2008] Y.J. No. 3 (Y.T.C.A.)), that held: “Generally speaking, driving prohibitions must be obeyed and breaches sanctioned in a meaningful way.” (paragraph 10)
Comparing This Case to Other Cases
[60] At this juncture in my reasons I will acknowledge with thanks the thirty-one cases provided by the Crown, of which Taylor is one, and the summaries of those cases that Mr. Miller prepared in his brief of June 1, 2011. I have listed those cases with my own short summaries in an Appendix to this decision. Reviewing the cases was instructive: they mostly dealt with much older, serial offenders with lengthy related records. A number of the offenders were described as having failed to address their alcohol addictions and continuing to drink and drive despite efforts to specifically deter or rehabilitate them. I do not find that Mr. Billard can be readily compared to the offenders in these cases.
[61] The Crown intended the cases that were provided to reflect the consequences meted out to drivers who put the public at risk, and “those who continue to defy court orders.” (Crown brief, April 13, 2011) The following passage from the Crown’s first case, R. v. Bear, [1994] S.J. No. 272 (Sask. C.A.) underlines the Crown’s approach to the appropriate disposition for Mr. Billard:
While in most cases, rehabilitation and reformation would be a strong factor in determining an appropriate sentence, in cases involving repeat offenders with multiple driving offence convictions, who have been given every opportunity to reform, this ceases to be a consideration. The offender has clearly shown himself incapable of rehabilitation, with the result that protection of the public can no longer be achieved, or even hoped for, through his reform. (paragraph 8)
[62] In Bear, the Saskatchewan Court of Appeal concluded that protection of the public can only be achieved by a custodial sentence “where it is clear that neither general deterrence nor specific deterrence have had any impact on the accused, and where it is clear rehabilitation is a faint possibility.” (paragraph 13)
[63] I do not agree that these statements, or others similar to them expressed in the cases summarized in Appendix “A” of these reasons, represent what can be fairly said about Mr. Billard.
The Mitigating Factors in Mr. Billard’s Case
[64] I have talked about the aggravating factors in this case. There are also mitigating factors to be taken into account. They are Mr. Billard’s guilty plea and acceptance of responsibility and his relative youth. His experiences with the criminal justice system began when he was 14, but at 22 he is still a young man and his rehabilitation is not a lost cause. Notwithstanding his re-offending despite previous custodial sentences, it is not appropriate to treat an offender like Mr. Billard the same as an offender who fails, as a mature adult, to respond to increasingly severe sentences. Mr. Billard’s sentence in January 2006 was imposed when he was 16. Although he was sentenced as an adult, Mr. Billard was not yet an adult in a developmental sense. (see, R. v. A.A.B., [2006] N.S.J. No. 80 (N.S.P.C.))
[65] In his reasons in A.A.B., Judge Burrill of this Court paraphrased the psychological assessment from December 16, 2004, describing Mr. Billard as “…immature…showing little appreciation of the seriousness of his situation. A.A.B. presents as an immature young man with significant social, emotional and moral deficits." (A.A.B., paragraph 28) Particular note was made by Judge Burrill of Mr. Billard’s behaviour during a presentence report interview when he put his feet up on the probation officer’s desk, bit his nails and spat them out on the floor. (A.A.B., paragraphs 29 and 30) Judge Burrill reiterated the following passage from this presentence report of November 9, 2004:
He displayed a fair amount of bravado, speaking freely and with a degree of pleasure about all the cars he has stolen and the chases following the theft. Although on a superficial level he took responsibility for his actions, he seemed to take pleasure in the amount of negative attention he has been receiving of late, asking if he could get a hold of the newspaper articles. A.A.B. appeared unaffected by the matters before the Court." (A.A.B.,paragraph 32)
[66] It was noted in Mr. Billard’s December 7, 2004 presentence report update that he seemed “…proud of his behaviour over the last year while in the community.” (A.A.B.,paragraph 33)
[67] Some small – referred to by Judge Burrill as “baby” – steps toward rehabilitation were noted by the time of Mr. Billard’s February 21, 2005 presentence report: "When interviewed for this report, A.A.B. presented in a respectful manner. His interactions with this writer were cooperative.” It was observed that he lacked “affect” and still underplayed the significance of his actions. (A.A.B.,paragraphs 36 and 37)
[68] The reports referred to by Judge Burrill, which I have just mentioned, are the ones I identified earlier in these reasons and were provided to me in Tabs F, G and H of the Crown’s April 13, 2011 brief.
[69] Contrasted to the 2004 and 2005 reports that informed Mr. Billard’s sentencing in 2006, Mr. Billard reported to Dr. Theriault in May 2011 that he is now calmer, less impulsive and no longer antagonistic toward authority. He has been abstaining from drugs. In his May 2011 presentence report Mr. Billard was found to be taking the interview process seriously and to be making “his best effort to provide as much information as possible…[presenting] as a pleasant and respectful individual who was capable of engaging in conversation.” In his statement to the Court at his sentencing on June 3, Mr. Billard expressed his remorse for his actions on January 22, indicating that he knew what he did was wrong, and taking “full responsibility.” Mr. Billard’s presentation now as a 22 year old is not reminiscent of the nail-biting, defiant and reckless youth who in 2004 and 2005 lacked any real understanding of the magnitude of his actions.
[70] However Mr. Billard still has considerable work to do to distance himself from who he was as a youth. His parole supervisor has used the words “immature” and “thrill seeker” to describe him. The observations of Mr. Billard by this parole supervisor as someone who is “very impulsive” and “doesn’t think” do contain worrying echoes of the past and are characteristics that undoubtedly contributed to his poor decision-making on January 22.
[71] Having considered the facts carefully however, I find that Mr. Billard’s actions on January 22 were materially different than his actions in the past: this did not involve him stealing a vehicle, he was operating a vehicle owned by friends. He was not playing out a thrill-seeking compulsion nor was he either deliberately or recklessly engaging the police in a dangerous-driving scenario. He should not have been driving, period. The fact that he did is very serious. But I do not find that he was repeating the behaviours that spiraled out of control in 2004.
Crafting a Fit and Proper Sentence
[72] While I accept as aggravating the factors referred to by the Crown - the condition of the vehicle’s windshield that rendered the vehicle unsafe to drive, the fact that Mr. Billard reversed into Cst. Gilbert, and the presence of the knife, in addition to the prior record and the fact of being on probation - I have determined that the sentencing of Mr. Billard should not be governed solely by considerations of denunciation and deterrence as urged by the Crown. Where there are indications, as there are here, that Mr. Billard is maturing and showing signs of gaining control over the impulses and attitudes that characterized his adolescence, the principles of restraint and rehabilitation must be factored into constructing a fit and proper sentence.
[73] I acknowledge that a sentencing judge’s belief that reformation and rehabilitation are achievable needs to be reasonable and anchored in factors that are present at sentencing:
Whether the factor present is an indication of remorse, a glimpsed change in attitude on the part of the convicted person, or some other sign or signal that the convicted person may have learned something beneficial from his or her past and present encounters with the criminal justice system, there must be something positive weighing in his or her favour which can be looked to to support the judge's chosen course of action. (R. v. Quesnel, [1984] O.J. No. 133(Ont.C.A.), page 2 (QL version))
[74] Whichever of the sentencing options are employed to address criminal behaviour, it is rehabilitation that most effectively serves the ultimate sentencing objective of protection of the public. This truth about sentencing has been plainly articulated by our Court of Appeal:
The challenge for the sentencing judge is, as it always has been, to balance the objectives of sentencing - this is not a new problem. It is worthy of note, however, that the judge is directed, in s. 718, to impose a just sanction that has "one or more" of the enumerated objectives. This, in my view, recognizes the irreconcilability of certain of the objectives and leaves to the court a reasonable latitude in choosing the appropriate emphasis for this offence and this offender. Protection of the public - "the maintenance of a just, peaceful and safe society" - remains, as always, the overarching goal of sentencing. Rehabilitation of the offender, where achievable, is key to public protection. (R. v. Parker, [1997] N.S.J. No. 194, paragraph 45)
[75] In Mr. Billard’s case, the objectives of sentencing are best balanced in a sentence that features elements of denunciation and deterrence leavened by an awareness of the importance of rehabilitation for this young man. Mr. Billard will be returning to live in the community sooner or later. He will have to develop and maintain the skills that will enable him to be successful as a young adult. His chances of being a law-abiding and productive member of the community must not be extinguished. It is in this context that the issue of institutionalization is relevant: Dr. Theriault’s psychiatric assessment identifies anxiety issues and an acclimatization to incarceration. Rehabilitation for Mr. Billard will need to address not only the issues I have identified in these reasons that remain outstanding, but it will also have to strengthen his ability to function effectively outside of prison. The better Mr. Billard functions in the community, the better off the community will be.
[76] Mr. Billard must grasp, with absolute clarity, the fact that he is prohibited from driving and is obliged to strictly comply with any probationary or other conditions he is on. His rationalizations about driving under certain circumstances have to be denounced and he has to fully accept the inconvenience and hardship of not being able to drive for many years to come. As this is his second conviction for driving while disqualified, both offences being committed early on in the term of the driving prohibition, a custodial term beyond the time he has already served is called for. Such a sentence is intended to serve the principles of denouncing and deterring such conduct.
[77] This a unique case. Mr. Billard is not a mature offender with a significant prior record like very nearly all of the offenders in Appendix “A” of these reasons. He is not incorrigible. At 22, he has relatively recently emerged from five years of incarceration. As I have noted, rehabilitation is an important aspect of Mr. Billard’s ongoing adjustment to living in the community free of conflict with the law. It must be given a robust role in this sentence.
[78] It is my view that the sentence proposed by the Crown of two years less remand time is freighted too heavily in favour of denunciation and deterrence with an inadequate regard for Mr. Billard’s youth and rehabilitation. Mr. Billard must be sentenced for what he has done this time, not what he did six and a half years ago. He must be held to account for his failure to strictly comply with his court-imposed obligations but he must be allowed to move forward as well.
[79] I have concluded that the appropriate sentence for Mr. Billard is nine months for the driving while prohibited, four months concurrent for the breach of probation and one month concurrent for the possession of the knife, for a total sentence of nine months. Mr. Billard shall receive credit for his effective remand time, as I previously indicated, of six months and twenty-seven days, leaving him to serve a further two months and three days in custody. This will be followed by eighteen months probation with conditions, in addition to the statutory conditions, of reporting, making reasonable efforts to find employment or advance his education, abstaining from drugs, and attending for assessment and counseling for vocational skills and life skills, should such programmes be available. I will also include a condition for Mr. Billard to attend for other such assessment, counseling and treatment as his probation officer directs.
[80] I will note that the sentence I am imposing on Mr. Billard has a span of just over three years: from January 2011 which marked the start of his remand to February 2013 which will mark the conclusion of his probationary term. This can only be described as a significant sanction. Mr. Billard will be approaching his 25th birthday when this sentence finishes.
Further Driving Prohibition
[81] Subsequent to the sentencing hearing on June 3 I received an email from the Crown submitting that Mr. Billard should receive a further driving prohibition of one year to be made consecutive to his existing prohibition order. Defence counsel for Mr. Billard did not wish to make any submissions on this matter. The Crown’s submission is reasonable and I will make the driving prohibition order accordingly. I have already signed a section 109 weapons prohibition order as requested. I am not imposing a Victim Surcharge in the circumstances where Mr. Billard is in custody as I find it would constitute an undue hardship on him.
[82] I will conclude by addressing myself directly to you, Mr. Billard: the road ahead will continue to present challenges. There will be temptations to resist and influences you will have to actively avoid. It will be up to you to confront those challenges with courage, good sense, good judgment and integrity and work with whatever opportunities and resources are available in the community to move forward constructively with your life. You will have to assess who you should be associating with and turn away from people who are not law-abiding. If you fail to embark upon this course now, the time will shortly come when you will be unable to turn the page on your past. You are at the crossroads of your adult life right now. Make the right choices as to the direction you take.
APPENDIX “A” – Sentencing Cases Provided By the Crown
R. v. Brake, [2005] N.J. No. 78 (Nfld. P.C.) - a 44 year-old offender with three prior convictions for drinking and driving offences was sentenced to 15 months imprisonment for two charges of driving with a BAC over the legal limit and one charge of refusing to provide a breath sample.
R. v. Britten, [2004] B.C.J. No. 1021 (B.C.S.C.) - a 23 year-old offender was sentenced to a global sentence of 12 months for dangerous driving, possession of stolen property and driving while prohibited in circumstances where he crashed a stolen pickup truck following a high-speed urban chase. (Mr. Brittan’s global sentence was 30 months less a 2:1 remand credit for nine months in pre-trial custody.) Mr. Brittan had a prior record that included a conviction for fleeing from police, a breach of probation, possession of stolen property involving two motor vehicles and other offences.
R. v. Budge, [2001] B.C.J. No. 761 (B.C.C.A.) – the British Columbia Court of Appeal upheld a two year sentence of imprisonment for dangerous driving and possession of a stolen car for a 24 year-old offender with no prior record for driving offences. In a brief decision, the B.C.C.A. noted that Mr. Budge was on statutory release at the time of the high speed police chase, having been sentenced to seven years in prison for break and enter, aggravated assault and stolen property. The Court observed that the sentencing judge had emphasized protection of the public and specific deterrence.
R. v. Butt, [2004] N.J. No. 305 (Nfld. P.C.) - a 51 year-old offender was sentenced to 26 months (less remand time) for failing to comply with a breathalyzer demand, threatening to kill a police officer and two counts of breach of undertaking. The Court referred to the fact that Mr. Butt had “consistently failed to comply with court orders and has shown little inclination to deal with his addiction problem…he presently constitutes a significant danger to the public and he is likely to continue to do so for an indeterminate period of time.” (paragraph 45)
R. v. Cooper, 2008 CarswellOnt 7388 (Ont. Ct. of Justice) - an older (age not specified) offender was sentenced to 12 months in custody for driving while disqualified. Mr. Cooper had seven prior convictions for driving while disqualified.
R. v. Curtis, [2009] N.J. No. 22 (Nfld. S.C. T.D.) - a 45 year-old offender was sentenced to 12 months in custody for driving while disqualified and breach of probation. Mr. Curtis had a prior record that included eight convictions for driving while disqualified, six convictions for impaired driving and refusal of breathalyzer demands and seven for breaches of court orders. At the time of his arrest he was serving an intermittent sentence imposed for driving while disqualified and was on a probation order requiring him to keep the peace and be of good behaviour.
R. v. Demas, [2006] A.J. No. 1306 (Alta. C.A.) - the Alberta Court of Appeal substituted a two and a half year prison sentence for the nine month sentence Mr. Dumas had originally received for impaired driving while subject to a curative discharge with a prohibition against consuming alcohol. Mr. Demas (no age specified) had a prior record of over 90 criminal convictions including a dozen convictions for drinking and driving.
R. v. Desjarlais, [1998] M.J. No. 213 (Man. C.A.) - the Manitoba Court of Appeal substituted a 15 month sentence for impaired driving, driving while suspended and failing to appear in court. Mr. Desjarlais (no age specified) had eight previous convictions for drinking and driving and had been sentenced to jail on five previous occasions.
R. v. Drake, [2010] N.J. No. 239 (Nfld. S.C. T.D.) – a 52 year-old offender was sentenced to 12 months imprisonment for driving while disqualified. Mr. Drake was on a ten year driving prohibition imposed in 2007 when in 2009 he was stopped by police. He had eight prior convictions for impaired driving and a prior conviction for driving while disqualified. The Court noted that none of Mr. Drake’s previous sentences appeared to have deterred him and emphasized specific deterrence and protection of the public as “Mr. Drake has a propensity for driving motor vehicles while he is under the influence of alcohol.” (paragraph 19)
R. v. Hindmarch, [2010] B.C.J. No. 1773 (B.C.S.C.) - a 30 year-old offender was sentenced to 21 months (less remand time) for driving while disqualified. Mr. Hindmarch had 56 prior convictions, including three for driving while disqualified, four for dangerous driving and three impaired or over .08. He also had eight convictions for breach of bail or probationary conditions.
R. v. Hirtle, [2008] A.J. No. 1515 (Alta. C.A.) - the Alberta Court of Appeal upheld a sentence of 24 months imprisonment (less remand time) followed by 12 months probation for an offender (age not specified) who pleaded guilty to driving with a BAC over the legal limit, driving while disqualified and driving without insurance. Mr. Hirtle had a prior related record of nine alcohol-related driving offences and three convictions of driving while disqualified.
R. v. Hogg, [2009] A.J. No. 852 (Alta. P.C.) - a 54 year-old offender received a five month sentence for driving while disqualified. The Crown had proceeded summarily. Mr. Hogg had no prior convictions for driving while disqualified although he had a lengthy record and a recent conviction for driving with a BAC over .08. The Court noted that the offence of driving while disqualified “constitutes an act of intentional disobedience of a court order” and described it as a “serious crime” even where the offender had driven only a short distance. (paragraphs 37, 51 and 52)
R. v. Alexander Kakakaway, [1998] S.J. No. 638 (Sask. C.A.) - the Saskatchewan Court of Appeal substituted a term of imprisonment of two years less a day instead of a conditional sentence for a conviction for driving while disqualified. The 30 year old offender had a lengthy prior record that included eight over .08 convictions and eleven convictions for driving while disqualified.
R. v. Clarence Kakakaway, [2006] S.J. No. 91 (Sask. C.A.) - the Saskatchewan Court of Appeal substituted a term of imprisonment of two years less a day for ten months in custody on charges of driving while disqualified and driving with a BAC over the legal limit. The offender (age not specified) had a prior record that included six convictions for driving while disqualified and nine convictions for driving with a BAC over .08. Specific deterrence was emphasized through a custodial sentence significantly greater than Mr. Kakakaway’s most recent previous sentence of eight months.
R. v. Kelly, [2008] O.J. No. 1810 (Ont. Ct. of Justice) - a 70 year-old offender received a sentence of 12 months for driving while disqualified and impaired driving. Mr. Kelly had ten prior convictions for drinking and driving offences.
R. v. Longul, [2004] B.C.J. No. 2287 (B.C.C.A.) - the British Columbia Court of Appeal upheld a nine month sentence of imprisonment for a 37 year-old offender who pleaded guilty to impaired driving. While Mr. Longul’s impaired driving record was dated, he had ignored driving prohibitions. Specific and general deterrence and denunciation all were appropriately emphasized in the sentence.
R. v. Maloney, [2006] B.C.J. No. 2993 (B.C.C.A.) - the British Columbia Court of Appeal upheld a term of imprisonment of two years less a day for a 45 year-old offender found guilty of driving with a BAC over .08 and driving while disqualified. Mr. Maloney had a chronic alcohol addiction and an extensive criminal record, including nine convictions for impaired driving or driving over .08 and five convictions for driving while disqualified or prohibited.
R. v. Mantee, [2005] S.J. No. 784 (Sask. C.A.) - the Saskatchewan Court of Appeal substituted a term of imprisonment of two years less a day for six months imprisonment on charges of driving with a BAC over .08 and driving while disqualified. Mr. Mantee, aged 44, had a prior record that included six convictions for driving with a BAC over .08 and nine for driving while disqualified. The Court described his record as demonstrating “a consistent constant pattern of driving while disqualified or over .08. An examination of his record indicates that this is a classic example of an individual who has been dealt with leniently and who has not responded to those lenient sentences.” (paragraph 8)
R. v. Melanson, [2009] N.B.J. No. 208 (N.B.C.A.) - the New Brunswick Court of Appeal substituted a term of imprisonment of 14 months for a conditional sentence in the case of a 52 year-old offender who pleaded guilty to driving while disqualified. Mr. Melanson had four prior convictions for driving while disqualified. The Court noted that: “Mr. Melanson is a mature offender. The underlying charge involves a conscious violation of a court order.” (paragraph 15)
R. v. Naugle, [2011] N.S.J. No. 165 (N.S.C.A.) – the Nova Scotia Court of Appeal upheld a total sentence of 8.5 years in prison for impaired driving (5 years), driving while prohibited (3 years) and leaving the scene of an accident (6 months) in the case of a 53 year-old offender who had a prior record that included 22 convictions for drinking and driving related offences and 14 for driving while prohibited. It was noted that the sentencing judge had found that rehabilitation was not a viable possibility.
R. v. Nowlan, [2002] N.B. J. No. 236 (N.B.P.C.) - a 50 year-old chronic offender was sentenced to a total sentence of 20 months imprisonment (with the remand credit factored in) for two charges of driving with a BAC over .08 and two charges of driving while prohibited. Rehabilitation was found to be a faint possibility with Mr. Nowlan showing “little insight into his problem and very little insight into the danger he poses” (paragraph 12) and a persistent tendency to defy court orders.
R. v. Pilgrim, [2009] B.C.J. No. 2170 (B.C.C.A.) – an offender (age not specified) was sentenced to 18 months imprisonment (less remand time) for driving while prohibited. The B.C.C.A. did not disturb this sentence. Mr. Pilgrim had a significant criminal record including two convictions for dangerous operation of a motor vehicle (one incident causing bodily harm), and one conviction for failing to provide a breath sample. He was in breach of two driving prohibitions.
R. v. Riley, [1996] N.S.J. No. 80 (N.S.C.A.) – the Nova Scotia Court of Appeal substituted one year imprisonment for a suspended sentence of 18 months and probation for two conviction for driving with a BAC over .08 and a breach of undertaking. Mr. Riley had 9 previous drinking and driving offences. The N.S.C.A. emphasized general deterrence. “[Mr. Riley] is a proven danger to the public as a result of his operating motor vehicles under the influence of alcohol.” (paragraph 26)
R. v. Sandfly, [2010] S.J. No. 230 (Sask. P.C.) – an older offender (age not specified) received two years’ imprisonment for driving with a BAC over .08 and two years’ imprisonment to be served concurrently on each of two charges of driving while disqualified. Mr. Sandfly had a very lengthy record for drinking and driving offences, including 16 convictions for driving while disqualified over a nearly 20 year history in the criminal justice system. Mr. Sandfly was described as a serial driving offender, a category of offender that “…continuously ignore[s] driving restrictions imposed by the Court…” (paragraph 52) The Court also noted: “The common theme running through these cases, and many others involving serial driving offenders, is that the offender must be removed from society to ensure the protection of the public. Neither general deterrence nor specific deterrence has had any impact on the offender. They have been given every opportunity to reform but have shown themselves to be incapable of that. Consequently, the only option is incarceration.”(cites R. v. Bear, [1994] S.J. No. 272 (Sask. C.A.)
R. v. Snake, [2010] O.J. No. 5445 (Ont. Sup. Ct. of Justice) – a 39 year old offender was sentenced to 36 months followed by three years probation for his third conviction in three years for high speed chases involving police. The Court noted that rehabilitation had been tried and failed. Denunciation and deterrence, particularly specific deterrence, and separation from society to protect the public, were the governing principles.
R. v. Taylor, [2008] Y.J. No. 3 (Y.T.C.A.) – the Yukon Territorial Court of Appeal upheld a 61 year-old offender’s 8 month sentence for driving while disqualified on two consecutive days. This was Mr. Taylor’s second conviction for driving while disqualified. He was in the last year of a 10 year driving prohibition imposed on conviction for impaired driving causing death in 1997. He had a record of four drinking and driving prohibitions prior to 1997. He had had no criminal convictions since 1997. There was no allegation of bad driving; the Court held: “Generally speaking, driving prohibitions must be obeyed and breaches sanctioned in a meaningful way.” (paragraph 10)
R. v. Waite, [2004] N.B. J. No. 455 (N.B.P.C.) – an offender (age not specified) was sentenced to 16 months (less remand time) for driving with a BAC over .08. Mr. Waite had 8 prior related impaired driving offences. Rehabilitation was described as a “faint possibility” and specific deterrence as not having had any impact. (paragraph 11)
R. v. Whitesell, [2010] B.C.J. No. 1049 (B.C.S.C.) – a 62 year-old offender was sentenced to three years in prison (less 10.5 months remand credit) for driving with a BAC over .08. He had a lengthy related record that spanned 38 years, including drinking and driving offences and driving while prohibited. The Court emphasized protection of the public where specific deterrence and rehabilitation were shown to have failed.
R. v. Yazlovasky, [2004] A.J. No. 1505 (Alta. C.A.) – an offender (age not specified) received a 9 month sentence for driving while prohibited, 3.5 years into a 15 year driving prohibition imposed for convictions for criminal negligence causing death and leaving the scene of an accident.