R. v. Shields (K.), (2014) 349 N.S.R.(2d) 367 (PC)

• Judge: Derrick, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 03, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 349 N.S.R.(2d) 367 (PC);2014 NSPC 69

R. v. Shields (K.) (2014), 349 N.S.R.(2d) 367 (PC);

    1101 A.P.R. 367

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. SE.013

Her Majesty the Queen v. Kyle Shields

(2408443; 2408449; 2014 NSPC 69)

Indexed As: R. v. Shields (K.)

Nova Scotia Provincial Court

Derrick, P.C.J.

September 5, 2014.

Summary:

The accused was convicted of trafficking in cocaine and conspiracy to traffic in cocaine. He had no prior criminal record. In addition to a lengthy period of imprisonment, the Crown sought an order that the accused provide a DNA sample. Since drug trafficking was a secondary designated offence, the Crown had the burden under s. 487.04 of the Criminal Code to show that a DNA order was in the best interests of the administration of justice.

The Nova Scotia Provincial Court declined to make a DNA sample order, as the Crown failed to prove that such was in the best interests of the administration of justice. The court sentenced the accused to four years' imprisonment for trafficking and four years' imprisonment (concurrent) for conspiracy to traffic.

Criminal Law - Topic 3080

Special powers - Forensic DNA analysis - When DNA sample order available or appropriate - The 31 year old accused, with no criminal record, was convicted of trafficking in cocaine and conspiracy to traffic in cocaine - Since trafficking was a secondary designated offence, the Crown sought an order under s. 487.04 of the Criminal Code that the accused provide a DNA sample - Since the accused refused consent, the Crown had the burden of showing that a DNA order was in the best interests of the administration of justice - The Nova Scotia Provincial Court declined to make a DNA sample order - The accused led no evidence that his privacy and dignity would be adversely affected, but his DNA was a constitutionally protected "biographical core of personal information" - This was a non-violent offence - The accused had no history of violence, intimidation or threats - He successfully completed 3.5 years of strict release conditions - The Crown failed to establish that it was in the best interests of justice to make a DNA sample order - See paragraphs 3 to 25.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The 31 year old accused was convicted of trafficking in cocaine and conspiracy to traffic in cocaine - The accused obtained a partial Grade 12 and completed a four year apprenticeship in Sheet Metal through a community college - He had been gainfully employed when work was available and had a supportive relationship with his girlfriend and family - The drug trafficking took place over a 3.5 month period when the accused was unemployed due to a lay off - The accused was a "busy mid-level" trafficker - He had no prior criminal record - Prospects for rehabilitation were good - Although there was no violence, threats or intimidation associated with the accused's trafficking, the court noted that "even the non-violent cocaine trafficker sows much misery and devastation" - Denunciation and deterrence were paramount - The Nova Scotia Provincial Court sentenced the accused to four years' imprisonment on each count, to be served concurrently - See paragraphs 26 to 75.

Criminal Law - Topic 5857

Sentence - Conspiracy - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. R.C. (2005), 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204 (S.C.C.), refd to. [para. 6].

R. v. Jordan (P.S.) (2002), 200 N.S.R.(2d) 371; 627 A.P.R. 371 (C.A.), refd to. [para. 16].

R. v. Awasis (C.L.) (2009), 268 B.C.A.C. 301; 452 W.A.C. 301 (C.A.), dist. [para. 24].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 26].

R. v. Scott (J.J.) (2013), 327 N.S.R.(2d) 256; 1036 A.P.R. 256 (C.A.), refd to. [para. 28].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88 (S.C.C.), refd to. [para. 29].

R. v. Shropshire (M.T.) (1995), 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37 (S.C.C.), refd to. [para. 29].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81 (S.C.C.), refd to. [para. 29].

R. v. L.M. (2008), 374 N.R. 351 (S.C.C.), refd to. [para. 29].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392 (C.A.), refd to. [para. 37].

R. v. Fifield (1978), 25 N.S.R.(2d) 407; 36 A.P.R. 407 (C.A.), refd to. [para. 37].

R. v. Field (J.W.), [2013] N.S.R.(2d) Uned. 148 (Prov. Ct.), refd to. [para. 39].

R. v. Bonin (R.M.) (2008), 265 N.S.R.(2d) 161; 848 A.P.R. 161 (S.C.), refd to. [para. 52].

R. v. Butt (R.J.) (2010), 291 N.S.R.(2d) 376; 922 A.P.R. 376 (C.A.), refd to. [para. 53].

R. v. Butt (R.J.), [2009] N.S.R.(2d) Uned. 208 (S.C.), refd to. [para. 53].

R. v. Jones (R.P.) (2008), 270 N.S.R.(2d) 115; 865 A.P.R. 115 (C.A.), refd to. [para. 55].

R. v. Jones (R.P.) (2007), 258 N.S.R.(2d) 339; 824 A.P.R. 339 (S.C.), refd to. [para. 55].

R. v. Stokes (C.B.) (1993), 126 N.S.R.(2d) 66; 352 A.P.R. 66 (C.A.), refd to. [para. 56].

R. v. Collette (D.J.) (1999), 177 N.S.R.(2d) 386; 542 A.P.R. 386 (C.A.), refd to. [para. 61].

R. v. McCurdy (J.S.) (2002), 210 N.S.R.(2d) 33; 659 A.P.R. 33 (C.A.), refd to. [para. 61].

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344 (C.A.), refd to. [para. 62].

R. v. Robbins (R.) (2008), 269 N.S.R.(2d) 363; 860 A.P.R. 363 (C.A.), refd to. [para. 65].

R. v. Colley (1991), 100 N.S.R.(2d) 447; 272 A.P.R. 447 (C.A.), refd to. [para. 72].

R. v. Priest (J.) (1996), 93 O.A.C. 163 (C.A.), refd to. [para. 72].

Counsel:

Mark Donohue and Jeffrey Moors, for the Crown;

Brad Sarson, for Kyle Shields.

This matter was heard on September 3, 2014, before Derrick, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on September 5, 2014.