SUPREME COURT OF Nova Scotia
Citation: R. v. Hollohan, 2022 NSSC 183
Date: 20220809
Docket: CRH 483288
Registry: Halifax
Between:
Her Majesty the Queen
v.
Brandon Jake Hollohan
Decision – Restorative Justice Referral
| Judge: |
The Honourable Justice Kevin Coady |
| Heard: |
May 31, 2022, in Halifax, Nova Scotia |
| Decision: |
August 9, 2022 |
| Counsel: |
Robert Kennedy, for the Crown Sarah White and Trevor McGuigan, for Brandon Jake Hollohan |
By the Court:
[1] On March 21, 2022, Mr. Hollohan was convicted by a jury of the following offence:
That he between the 20th day of January 2018 and the 22nd day of January 2018 at, or near Dartmouth, in the County of Halifax in the Province of Nova Scotia, did unlawfully cause the death of Deborah Irene Yorke, and did thereby commit second degree murder contrary to section 235(1) of the Criminal Code.
Mr. Hollohan was handed a life sentence and was remanded into immediate custody. The issue of parole ineligibility was adjourned.
[2] Counsel for Mr. Hollohan subsequently made an application for a referral to a post-conviction Restorative Justice Program. After hearing from a caseworker with Community Justice, and after submissions from counsel, I made the referral. These are my reasons.
[3] Restorative Justice initiatives are nothing new. However, they have generally been limited to young offenders and adults charged or convicted of less serious offences. This is the first time in Nova Scotia that this initiative has been applied to an Offender convicted of murder.
[4] It is important to recognize that this referral does not impact Mr. Hollohan’s life sentence or the determination of his parole ineligibility. While any evidence generated by this referral may be considered at the Parole Ineligibility Hearing, it does not dictate an outcome. In other words the principles of sentencing continue to apply. The focus of this referral is Mr. Hollohan’s rehabilitation and his re-entry into society on completion of his sentence.
[5] The protocol developed by the Provincial Justice Department is instructive. It states as follows:
A Judge’s discretion to incorporate Restorative Justice arises from their authority over court proceedings and sentencing including, for adults, under subsections 732(2) and (3), section 726.1; and clause 718(e) of the Criminal Code.
…
The Judiciary may refer to or incorporate Restorative Justice processes as part of proceedings to inform sentencing and/or to acquire necessary information to discharge their sentencing responsibilities. The Judiciary may refer to Restorative Justice following a guilty plea/finding. These referrals do not result in the dismissal of a charge upon successful completion of a restorative process.
[6] Any suggestion that such a referral allows an Offender to avoid the consequences of their sentence is misguided. Protection of society is the pre-eminent goal of sentencing. Rehabilitation remains the best path to ensure public safety. This referral will give Mr. Hollohan the opportunity to earn the trust of society and to emerge form his sentence as a young man committed to a pro-social lifestyle. Should he fail in these goals, he will have no one to blame but himself.
[7] The next consideration is whether Mr. Hollohan is a suitable candidate for this referral. I am satisfied that he is for the following reasons:
• He is a young man (28) who prior to this offence was not in conflict with the law.
• He is a first time offender.
• He has strong family and community supports.
• He was an extreme addict at the time of the office and he achieved substantial sobriety while awaiting trial, and subsequent to the trial.
I am satisfied that Mr. Hollohan’s future will be defined by his efforts to remain clean. He has shown an ability to maintain that goal even in the face of several relapses.
[8] After presiding at Mr. Hollohan’s trial, I was left with the questions, “How could this have happened?” “What was the motive?”. Mr. Hollohan’s history did not suggest a propensity for the kind of violence he inflicted on Ms. Yorke. I can only conclude that his various addictions robbed him of the ability to avoid such violence. This speaks volumes about the power of addiction to debilitating substances. It does not provide an excuse and Mr. Hollohan will pay for those actions for the rest of his life.
[9] Mr. Hollohan’s physician, Dr. Saunders, offered the following comments in the Pre-Sentence Report:
I have known Brandon for eight years. When I first met him, he needed treatment for opioid use disorder, and he became a regular patient at Direction 180 in Halifax. He engaged in treatment for a period, then would stop, as happens to many patients. He eventually transferred his care to the open-door clinic in Dartmouth where I also provided primary medical care for Brandon. During this time, I came to know Brandon better. He attended and engaged in recovery meetings throughout this time. He became more engaged as time progressed. I was called by the authorities the night of his arrest. I was very surprised to hear about the charges. At no time prior to his arrest did Brandon ever display or discuss wishes to harm others. Brandon always displayed a calm and gentle demeanour, even when he was in a bad place with his addition illness. During the three years of house arrest I continued to see or speak with Brandon monthly regarding his addition treatment. I also observed Brandon on a regular basis at recovery group meeting. Brandon always carried out his responsibilities. He took on many extra responsibilities and mentored numerous struggling addicted people. I feel I have a very good grasp of Brandon’s personality and character. He is grounded and self-confident. His mindfulness practice has groomed humility and a true desire to be of service to others. I can say with confidence that I trust Brandon at his word.
These comments are supportive of giving Mr. Hollohan every tool available to maintain sobriety so that he can return to his community and live a normal life, free of violence and addiction.
[10] The Crown does not oppose this referral but argued that it is premature. It would prefer the referral take place after the Parole Ineligibility Hearing, thereby allowing the Yorke family time to determine their involvement in the Restorative Justice process. Section 723(2) and (3) of the Criminal Code states:
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.
I take the view that the information generated by this referral complies with the objectives of the above sections of the Code. I do not see that affecting the Yorke’s family decision about involvement. This is a long-term project.
[11] I expect a report on Mr. Hollohan’s progress for consideration at the Parole Ineligibility Hearing.
Coady, J.