Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Durley, 2025 NSSC 271

Date: 20250825

Docket: CRAT No. 539664

Registry: Antigonish

Between:

 

His Majesty the King

 

v.

 

Francis Scott Durley

 

 

 

Judge:	The Honourable Justice Peter P. Rosinski
Heard:	July 9, 2025, in Antigonish, Nova Scotia
Counsel:	Tracey Sturmy for the Crown Adam Rodgers for Mr. Durley

 

 

By the Court:

Introduction

[1]             This is the matter of sentencing of Francis Scott Durley for having committed a number of offences, including an aggravated assault, by having shot the mother of their child, Shauna Timmons, in the stomach area with the .22 calibre rifle, on September 19, 2024.

[2]             In totality, he will be sentenced to 6 years in custody less pre-sentence custody credit.

[3]             A number of ancillary Orders will also be ordered.

Background

[4]             Mr. Durley has been in custody since the date of the offences charged, namely on or about September 20, 2024.

[5]             The Crown and Defence have jointly recommended a total sentence of 6 years' imprisonment, from which will be deducted a pre-sentence custody credit of 1.5 days for each day served on remand (340 days) or 510 days credit per s. 719(3) Criminal Code.

[6]             The Indictment, attached hereto as Appendix "1", lists the charges that were to be heard in a trial scheduled for December 1-5, 2025.

[7]             A lengthy and successful resolution conference was held on July 9, 2025.

[8]             Mr. Durley's counsel indicated that, although he was charged with attempted murder per s. 239, as against Shauna Timmons,  his position remains that "he did the act" but the Crown would not be able to show he subjectively intended to kill Ms. Timmons.

[9]             However, he was prepared to plead guilty to aggravated assault (s. 268)[1] and other offences which I reference below - leaving any remaining charges to be dismissed for want of prosecution.

[10]         The Indictment was amended to reflect his guilty plea to aggravated assault in place of the attempted murder charge.

[11]         In summary, he pled guilty as follows, and the joint recommendations are:

1.               s. 268 on  Shauna Timmons - 5 years' custody;

2.               s. 87(1) pointing a firearm at Shauna Timmons - 1 year custody, concurrent;

3.               s. 87(1) pointing a firearm at Chandra Timmons - 1 year custody, consecutive;

4.               s. 91(1) possession of a firearm without a license - 6 months' custody, concurrent;

5.               s. 88(2) possession of a weapon for a dangerous purpose - 6 months' custody, concurrent;

6.               s. 264.1(1)(a) uttering threats to Shauna Timmons - 12 months' custody, concurrent to count 1; and

7.               s. 264.1(1)(a) uttering threats to Chandra Timmons - 12 months' custody, concurrent to count 3.

[12]         The Crown seeks the following ancillary orders:

1.               DNA - s. 487.051;

2.               Weapons prohibition - s. 109 for life;

3.               Non-communication Order - s. 743.21;

4.               Forfeiture of seized firearm/accessories - s. 491; and

5.               Victim surcharge - s. 737.

[13]         Pursuant to s. 606 (1.1) of the Criminal Code, I was satisfied to accept his guilty pleas since I concluded he was making the plea voluntarily; he understood that the plea is an admission of the essential elements of the offence and the nature and consequences of the plea; that he understood the Court is not necessarily bound by any agreement made between the accused and the prosecutor; and that the facts support the charges.

[14]         Sentencing was set over to August 25, 2025, with the expectation that Victim Impact Statement(s) may be filed. Attached hereto as Appendix “2”, is an Agreed Statement of Facts pursuant to s. 655 of the Criminal Code (see also Justice Beveridge's reasons in  R. v. Falconer, 2016  NSCA 22 ).

A true "joint recommendation"

[15]         Counsel advised that they would be presenting a true joint recommendation on sentence to the Court. I agree it certainly is that.

[16]         When a true joint recommendation is presented to the Court, generally, it should be accepted by a Court unless, as Justice Moldaver stated in R. v. Anthony-Cook, 2016 SCC 43:  "[5] …the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.".

[17]          He elaborated:

[32]    Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.

[33]    In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system".  And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 (CanLII), when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".

[34]    In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee.  They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.  Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.  This is an undeniably high threshold - and for good reason, as I shall explain.

[18]         The joint recommendation proposing that Mr. Durley be sentenced to 6 years' imprisonment (less pre-sentence credits) meets those standards, and I accept it.

Considerations on sentencing

[19]         The circumstances of the offender and the offences, examined in light of the general and specific principles of sentencing in the Criminal Code and with reference to precedent sentencing decisions, will frame what would be a fit sentence in this case.

[20]         There are many aggravating factors here arising from the commission of the offences themselves, as well as that Mr. Durley has a prior record for domestic violence and his prior criminal record. The Nova Scotia Public Prosecution Service "Bail Report" will be made Exhibit 1 at the sentencing hearing.

[21]         Mr. Durley has pled guilty which is a mitigating factor.

[22]         The Crown notes that Mr. Durley faces a maximum term of imprisonment "not exceeding 14 years" per s. 268(2) of the Criminal Code, but that that has been increased pursuant to s. 718.3(8) of the Criminal Code to life imprisonment, because he has previously been convicted of "an indictable offences in the commission of which violence was used, threatened or attempted against an intimate partner"[2].

[23]         The previous incident of intimate partner violence can be found in the filed Public Prosecution Service - Bail Report current as of August 12, 2025 at page 13 of 21 which shows him having been sentenced June 9, 2017 to 12 months probation in relation to offences committed on January 1, 2017, under sections 266(b) and 264.1 regarding Brittany Thompson. One of the conditions included "undergo and successfully complete any counselling or program regarding domestic violence and anger management directed by your Probation Officer" (see pp. 1-2 and 5 of 21 Bail Report).

[24]         His only other conviction for violence arose on June 8, 2017 - s. 267 (b) (assault causing bodily harm) for which he was sentenced to 30 days in custody on June 9, 2017.

[25]         General and specific deterrence to Mr. Durley, and denunciation, are the paramount sentencing considerations, although his rehabilitation is a significant factor as well.

[26]         Ranges of sentences can be helpful to ensure some parity of sentencing outcomes in this case as compared with similar ones, so long as the proportionality of the sentence remains the primary focus. Cases which offer useful insights include:

•        R. v. Mac Evoy, 2023 NSPC 30, 2023 NSPC 35 and 2023 NSPC 59 (paras. 20-31: 4 years' custody) written by the very highly regarded Judge Peter Ross;

•        R. v. Whebby, 2017 NSPC 83 (para. 82) Hoskins PCJ (as he then was); and

•        R. v. Brown, 2024 NBKB 137 (para. 59) per Justice Kathryn Gregory.

Victim Impact Statements

[27]         Even without Impact Statements from the victims, I am prepared to infer from the Agreed Statement of Facts that Shauna and Chandra at the time experienced a very traumatic event on September 19, 2024, and that those traumas remain with them to the date of sentencing - and will likely continue to remain with them.

[28]         I am satisfied that the children present, in accordance with their age at the time, also experienced significant trauma, as a result of Mr. Durley's actions that day.[3]

[29]         The Agreed Statement of Facts confirms that:

… When Shauna went back into the home, she says Mr. Durley "lost it". Mr. Durley went down to the end of the hall and came up the hall with the 22 calibre rifle gun. Mr. Durley said if Shauna did not get out of the house he would shoot her. Mr. Durley said "you're not making it out of this driveway". … Mr. Durley pointed the gun out the window at her sister's car and said he would blow all the windows out of the car. … Chandra told Mr. Durley she would take the child back the next day. Mr. Durley then pointed the gun at Chandra and said words to the effect of "I will shoot you right in the fucking head, you bitch." Mr. Durley had the gun pointed at Chandra's head at this time. … Chandra responded "do it" or "I dare you" not really thinking he would shoot her. … Shauna stepped out backward and pulled the door shut behind her. They could hear the footsteps and Mr. Durley ripped the door open, pointed the gun and shot Shauna, at close range, in the stomach. …the gun had been pointed directly at her stomach. She notes she exclaimed "you fucking shot me" and he replied "the safety was off". … Ms. Timmons lost her whole spleen, half her pancreas, a piece of her small intestine and the bullet remains lodged in her spine. The doctors were able to save her liver and reattach her bowel.

[30]         If Victim Impact Statements are filed, I shall have read them carefully and take them into consideration.

Conclusion

[31]         The moral blameworthiness associated with Mr. Durley's actions, particularly in relation to his handling and use of the .22 calibre rifle, is very high, especially as they had life endangering and enduring consequences for Shauna Timmons - see also, inter alia, s. 718.2(a).

[32]         On the other hand, the proposed sentence here is one that meets the criteria of a true joint recommendation.

[33]         I sentence Mr. Durley to 6 years' imprisonment less pre-sentence custody credit (510 days).

[34]         The sentence will be broken down as follows:

[35]         I grant the Crown's requested ancillary Orders:

1.	DNA s. 487.051(1) - by virtue of the s. 268 offence being a "primary designated offence" per section 487.04(a);
2.	Weapons prohibition - s. 109(1)(a.1) - for life;
3.	Non-communication Order per s. 743.21 regarding Shauna Timmons, her children (excepting the child that she and Mr. Durley are parents to, and then only as permitted in accordance with an Order of a Court having civil/family jurisdiction or by unequivocal agreement between Shauna Timmons and Mr. Durley), any of her immediate family members;  Chandra Timmons, her children and any of her immediate family members; and
4.	Forfeiture per s. 491 of seized firearms/accessories.

[36]         Regarding a Victim Surcharge, I order none to be paid as I conclude that it would tend to take monies away from Mr. Durley's paying his "financial obligations" towards his child with Shauna Timmons, per s. 737(2.1).

Rosinski, J.