R. v. Bernard (A.), 2011 NSCA 53

• Judge: Saunders, Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 09, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 53;(2011), 303 N.S.R.(2d) 384 (CA)

R. v. Bernard (A.) (2011), 303 N.S.R.(2d) 384 (CA);

    957 A.P.R. 384

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.035

Andrew Bernard (appellant) v. Her Majesty The Queen (respondent)

(CAC 329696; 2011 NSCA 53)

Indexed As: R. v. Bernard (A.)

Nova Scotia Court of Appeal

Saunders, Oland and Beveridge, JJ.A.

June 9, 2011.

Summary:

The accused pleaded guilty to two counts of driving a motor vehicle while having an excessive blood-alcohol content, breathalyzer refusal and two counts of breaching a recognizance. The accused had prior convictions for drinking and driving and breaching court orders, but had always been sentenced to fines and probation rather than imprisonment. After giving five months' credit for 2.5 months' pre-trial custody, the trial judge imposed a global net sentence of imprisonment for two years less a day, which he then apportioned among the offences as consecutive or concurrent sentences. The accused appealed against sentence, arguing that the judge erred by failing to consider the totality principle and the "step" or "gap" principles. The Crown agreed that the judge erred in principle, but argued that the errors did not prejudice the accused where the sentence imposed was justified on the facts of the case.

The Nova Scotia Court of Appeal allowed the appeal and substituted a sentence of 24 months' imprisonment, comprised of five months' imprisonment for the first impaired driving, seven months' imprisonment for the second impaired driving (consecutive), nine months' imprisonment for the breathalyzer refusal (consecutive), one month's imprisonment for the first breach of recognizance (consecutive) and two months' imprisonment for the second breach of recognizance (consecutive), less five months' credit for 2.5 months' pre-trial custody, leaving a net sentence of 19 months' imprisonment.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) -The accused pleaded guilty to five offences - The trial judge sentenced the accused to a global sentence, then imposed five consecutive sentences adding up to the global sentence - The Nova Scotia Court of Appeal held that the judge erred in principle - The proper procedure was to determine a fit sentence for each offence, then determine which sentences should be consecutive and which should be concurrent - The judge was then to determine whether the total sentence imposed exceeded what was commensurate with the accused's moral blameworthiness - If the total sentence imposed was disproportionate or excessive, the judge could then adjust it to arrive at a fit and proper sentence - Working backwards from a global sentence was not permitted - See paragraphs 11 to 21.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. step or jump principle) - The accused was being sentenced for three drinking and driving offences and two breaches of recognizances - He had prior convictions for impaired driving offences, but imprisonment had never been imposed (only fines or probation) - The last offence was in 2001 - The trial judge imposed a global sentence for the offences, which he later apportioned by way of consecutive sentences for each offence - The Nova Scotia Court of Appeal held that the trial judge erred in failing to consider the "jump" or "step" principle where the accused had never before been sentenced to imprisonment - The trial judge also erred in failing to consider the "gap" between the last offences (2001) and the present offence - Given the error in principle, the court gave no deference to the judge's decision and imposed what it considered to be fit sentences for the five offences - See paragraphs 33 to 42.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5830 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - The 38 year old accused pleaded guilty to two counts of driving a motor vehicle while having an excessive blood-alcohol content, breathalyzer refusal and two counts of breaching a recognizance - The accused had prior convictions for drinking and driving and breaching court orders, but had never before been imprisoned and his last conviction was in 2001 - He was an alcoholic - He had extremely high blood-alcohol levels - His three incidents of drinking and driving within a short period of time showed a wanton disregard for the safety of the public - After giving five months' credit for 2.5 months' pre-trial custody, the trial judge imposed a global net sentence of imprisonment for two years less a day, which he then apportioned among the offences as consecutive or concurrent sentences - The accused appealed against sentence - The Nova Scotia Court of Appeal allowed the appeal and substituted a sentence of 24 months' imprisonment, comprised of five months' imprisonment for the first impaired driving, seven months' imprisonment for the second impaired driving (consecutive), nine months' imprisonment for the breathalyzer refusal (consecutive), one month's imprisonment for the first breach of recognizance (consecutive) and two months' imprisonment for the second breach of recognizance (consecutive), less five months' credit for 2.5 months' pre-trial custody, leaving a net sentence of 19 months' imprisonment - See paragraphs 45 to 61.

Criminal Law - Topic 5887

Sentence - Failure to provide a breath or blood sample - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - A trial judge erred in principle in sentencing the accused (respecting totality principle) - The Crown argued that the appellate court could not intervene unless the sentence imposed, notwithstanding the error, was manifestly unfit - The Nova Scotia Court of Appeal rejected the submission, stating that "once we find that a trial judge has erred in principle when imposing a sentence, any deference which might otherwise have been paid is ignored, and we are presented with a 'clean slate' to decide for ourselves what constitutes a fit sentence" - See paragraphs 22 to 25.

Cases Noticed:

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 10].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 10].

R. v. Markie (B.J.) (2009), 284 N.S.R.(2d) 352; 901 A.P.R. 352; 2009 NSCA 119, refd to. [para. 10].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 10].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 13].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 14].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 27].

R. v. Brunet (R.) (2010), 271 O.A.C. 25; 2010 ONCA 781, refd to. [para. 28].

R. v. Liwyj (A.E.) (2011), 415 N.R. 143; 2010 CMAC 6, refd to. [para. 28].

R. v. MacDonald (K.) (2009), 236 Man.R.(2d) 239; 448 W.A.C. 239; 2009 MBCA 36, refd to. [para. 28].

R. v. Kozun (T.B.) (2007), 220 Man.R.(2d) 77; 407 W.A.C. 77; 2007 MBCA 101, refd to. [para. 28].

R. v. Provost (C.J.) (2006), 256 Nfld. & P.E.I.R. 205; 773 A.P.R. 205; 2006 NLCA 30, refd to. [para. 28].

R. v. Hawkins (H.J.) (2011), 298 N.S.R.(2d) 53; 945 A.P.R. 53; 2011 NSCA 7, refd to. [para. 29].

R. v. Lohnes (B.R.) (2007), 251 N.S.R.(2d) 382; 802 A.P.R. 382; 2007 NSCA 24, dist. [para. 39].

R. v. Skolnick, [1982] 2 S.C.R. 47; 42 N.R. 460, refd to. [para. 55].

R. v. Andrade (F.) (2010), 363 N.B.R.(2d) 159; 936 A.P.R. 159; 2010 NBCA 62, refd to. [para. 55].

R. v. Larche (J.-P.), [2006] 2 S.C.R. 762; 355 N.R. 48; 2006 SCC 56, refd to. [para. 59].

Authors and Works Noticed:

Coke, Edward, Coke's Institutes of the Laws of England (1671), vol. 2, p. 468 [para. 54].

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), § 2.55 [para. 41].

Counsel:

Brian Stephens, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respondent.

This appeal was heard on February 11, 2011, at Halifax, N.S., before Saunders, Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On June 9, 2011, Saunders, J.A., delivered the following judgment for the Court of Appeal.