R. v. Cromwell (Y.M.), 2005 NSCA 137

• Jurisdiction: Nova Scotia
• Judge: Roscoe, Bateman and Fichaud, JJ.A.
• Neutral Citation: 2005 NSCA 137
• Citation: 2005 NSCA 137,(2005), 238 N.S.R.(2d) 17 (CA),202 CCC (3d) 310,[2005] NSJ No 428 (QL),238 NSR (2d) 17,757 APR 17,[2005] NS.J. No 428 (QL),238 N.S.R.(2d) 17,757 A.P.R. 17,(2005), 238 NSR(2d) 17 (CA),238 NSR(2d) 17
• Date: 03 November 2005
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17 (CA);

    757 A.P.R. 17

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. NO.016

Yvonne Mary Cromwell (appellant) v. Her Majesty The Queen (respondent)

(CAC 232797; 2005 NSCA 137)

Indexed As: R. v. Cromwell (Y.M.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Fichaud, JJ.A.

November 3, 2005.

Summary:

The accused pleaded guilty to impaired driving causing bodily harm and breach of a recognizance. The Crown and accused made a joint recommendation for a global 19 month conditional sentence, followed by one year's probation and a two year driving prohibition. The trial judge, without advising counsel in advance, rejected the conditional sentence as unfit and sentenced the accused to a total of five months' imprisonment plus one year's probation and a two year driving prohibition. The accused appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The trial judge erred in not advising counsel that he was considering departing from the joint submission and denying them an opportunity to make further submissions in support of the joint submission. However, the error did not affect the result as the trial judge would not have accepted the joint submission in any event, as it failed to adequately reflect general and specific deterrence or protect the public. The sentence imposed was at the low end of the range of sentences available and gave proper consideration to the guilty pleas.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The now 29 year old accused pleaded guilty to impaired driving causing bodily harm and breach of recognizance respecting a 1999 motor vehicle accident that injured three persons - The accused abandoned her vehicle, left the scene without checking on injured persons in the other vehicle and expressed no remorse - The accused was a substance abuser who obtained no treatment in the five years since the accident, except for her purported sobriety for the past two months - The risk of reoffending remained high - Counsel jointly recommended a 19 month conditional sentence plus probation and a driving prohibition - The trial judge rejected the joint submission as unfit, given the need for deterrence and protection of the public - The trial judge sentenced the accused to five months' imprisonment plus one year's probation and a two year driving prohibition - The Nova Scotia Court of Appeal dismissed the accused's sentence appeal - Although the trial judge erred in not advising counsel that he was considering departing from the joint submission, and in not giving them an opportunity to make further submissions in support of the joint submission, the error did not affect the result as the trial judge did not err in refusing the recommendation as unreasonable - A conditional sentence failed to adequately reflect general and specific deterrence, denunciation or protection of the public - The sentence imposed was well within the range of sentences available for this offender and this offence, and gave proper weight to the guilty pleas - A clear message was required that drunk driving and related offences were crimes requiring deterrence and denunciation - They were not merely errors in judgment - See paragraphs 26 to 67.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Nova Scotia Court of Appeal stated that a trial judge considering departing from a jointly recommended sentence erred if he failed to give counsel notice of his intention and an opportunity to make further submissions in support of the recommended sentence - The court stated that "I encourage counsel who would put forward a joint submission to provide the judge with as much detail as possible supporting the recommendation. If there are genuine problems of proof in the Crown's case or other factors which lend support to the joint submission being in the public interest, such should be made known to the judge insofar as possible. Case law as to range should be cited as well." - See paragraphs 13, 68.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5835

Sentencing - Considerations on imposing sentence - Protection of the public - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344 (C.A.), refd to. [para. 13].

R. v. G.P. (2004), 229 N.S.R.(2d) 61; 725 A.P.R. 61 (C.A.), refd to. [para. 13].

R. v. Douglas (2002), 162 C.C.C.(3d) 37 (Que. C.A.), refd to. [para. 18].

R. v. Cerasuolo (J.C.) (2001), 140 O.A.C. 114; 151 C.C.C.(3d) 445 (C.A.), refd to. [para. 20].

R. v. Dorsey (C.) (1999), 123 O.A.C. 342 (C.A.), refd to. [para. 20].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 150 C.C.C.(3d) 513 (C.A.), refd to. [para. 20].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 22].

R. v. Muise (D.R.) (No. 4) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 22].

R. v. Mafi (K.) (2000), 133 B.C.A.C. 221; 217 W.A.C. 221; 142 C.C.C.(3d) 449 (C.A.), refd to. [para. 26].

R. v. Biancofiore (N.F.) (1997), 103 O.A.C. 292; 119 C.C.C.(3d) 344 (C.A.), refd to. [para. 27].

R. v. MacLeod (R.B.) (2004), 222 N.S.R.(2d) 56; 701 A.P.R. 56; 2004 NSCA 31, refd to. [para. 28].

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. 30].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 32].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 121 C.C.C.(3d) 504 (C.A.), refd to. [para. 38].

R. v. Maheu, [1997] R.J.Q. 410; 116 C.C.C.(3d) 361 (C.A.), refd to. [para. 38].

R. v. Parker (R.D.R.) (1997), 159 N.S.R.(2d) 166; 468 A.P.R. 166 (C.A.), refd to. [para. 51].

R. v. Martin (V.N.) (1996), 154 N.S.R.(2d) 268; 452 A.P.R. 268 (C.A.), dist. [para. 53].

R. v. Banta (A.) (1996), 77 B.C.A.C. 28; 126 W.A.C. 28 (C.A.), dist. [para. 57].

R. v. Gomes (K.W.) (2003), 327 A.R. 288; 296 W.A.C. 288; 175 C.C.C.(3d) 125 (C.A.), dist. [para. 58].

R. v. Mischaud (J.D.) (2000), 190 Nfld. & P.E.I.R. 206; 576 A.P.R. 206 (Nfld. C.A.), refd to. [para. 59].

R. v. Scraire (1998), 132 C.C.C.(3d) 210 (Que. C.A.), dist. [para. 60].

R. v. Mould (M.) (2000), 135 O.A.C. 294 (C.A.), dist. [para. 62].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 67].

Counsel:

Stanley W. MacDonald, for the appellant;

Peter P. Rosinski, for the respondent.

This appeal was heard on September 21, 2005, at Halifax, N.S., before Roscoe, Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On November 3, 2005, Bateman, J.A., delivered the following judgment for the Court of Appeal.