R. v. Turner (G.D.), (2010) 356 N.B.R.(2d) 293 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 12, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 356 N.B.R.(2d) 293 (TD);2010 NBQB 93

R. v. Turner (G.D.) (2010), 356 N.B.R.(2d) 293 (TD);

  356 R.N.-B.(2e) 293; 919 A.P.R. 293

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Temp. Cite: [2010] N.B.R.(2d) TBEd. MR.034

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MR.034

Gary David Turner (appellant) v. Her Majesty the Queen (respondent)

(S/A/3/10)

Gary David Turner (appellant) v. Her Majesty the Queen (respondent)

(S/A/4/10; 2010 NBQB 93; 2010 NBBR 93)

Indexed As: R. v. Turner (G.D.)

Répertorié: R. v. Turner (G.D.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Walsh, J.

March 17, 2010.

Summary:

Résumé:

The accused committed two "drunk driving" offences in 2009 several months apart. He was convicted and sentenced for those offences on different dates. For the first offence, the accused received five months' imprisonment and was prohibited from driving for five years. For the second offence, he received an additional one year of imprisonment and a further five year driving prohibition. The accused appealed from the sentences.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal with respect to the sentence imposed for the first offence. The court allowed the appeal with respect to the second offence and varied the sentence of one year imprisonment to seven months' imprisonment.

Criminal Law - Topic 5606

Punishments (sentence) - General principles - Increased punishment for prior convictions - The accused committed two "drunk driving" offences in 2009 - He was arrested for the second offence while he was awaiting trial on the first offence - For the second offence, he was sentenced to one year of imprisonment and a five year driving prohibition - On appeal, the New Brunswick Court of Queen's Bench, Trial Division, varied the sentence to seven months' imprisonment - The trial judge erroneously believed that the accused had been convicted and sentenced for the first offence before he had been arrested and charged for the second offence and the judge gave full force to that conviction in imposing sentence - That misapprehension of the evidence resulted in an error in principle - Historically, the principle was known as the "Coke rules" - Applying the Coke rules, the conviction for the first offence could not be treated as a conviction for more severe penalty purposes with respect to the second offence - See paragraphs 11 to 16.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See second Criminal Law - Topic 5886 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See second Criminal Law - Topic 5886 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - The accused was convicted of a "breathalyzer offence" (Criminal Code. 253(1)(b)) - His readings were 240 and 230 milligrams of alcohol in 100 millilitres of blood - The accused had been convicted in 1984, 2005 and 2006 of Criminal Code "drunk driving" offences - Section 255(1)(a) (iii) of the Code required a minimum jail sentence of 120 days - However, the trial judge noted the very high breathalyzer readings and, stressing the principle of deterrence, imposed a sentence of five months in jail - The accused appealed from the sentence - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal - The trial judge committed no error in law or principle - Nor was the sentence excessive - See paragraphs 6 to 10.

Criminal Law - Topic 5886

Sentence - Impaired driving - The accused was arrested for a "breathalyzer offence" in March 2009 - In August 2009, while he was awaiting trial on that charge, he was arrested for another "drunk driving" offence - He was convicted of the March offence and, on the date set for trial, he pled guilty to the August offence - He also had prior "drunk driving" convictions in 1984, 2005 and 2006 - For the March offence, the accused was sentenced to five months' imprisonment and was prohibited from driving for five years - For the August offence, he received an additional one year of imprisonment and a further five year driving prohibition - On appeal, the New Brunswick Court of Queen's Bench, Trial Division, held that the trial judge erred in giving full force to the conviction for the March offence in imposing the sentence for the August offence - Applying the "Coke rules", the conviction for the March offence could not be treated as a conviction for more severe penalty purposes with respect to the August offence - The court varied the sentence imposed for the August offence to seven months' imprisonment - The court considered that the accused's blood-alcohol readings were well over three times the legal limit - The court rejected the accused's argument that the sentence for the August offence should be concurrent to the sentence for the March offence as there was no nexus in time and place - Nor did the court find that the totality principle otherwise required a reduction in the sentences - The totality of the sentences did not exceed the overall culpability of the accused in the circumstances - See paragraphs 17 to 24.

Droit criminel - Cote 5606

Peines (sentence) - Principes généraux - Peine plus sévère en raison de condamnations antérieures - [Voir Criminal Law - Topic 5606 ].

Droit criminel - Cote 5802

Détermination de la peine - Généralités - Peines concommitantes - [Voir Criminal Law - Topic 5802 ].

Droit criminel - Cote 5804

Détermination de la peine - Généralités - Peines consécutives - Peine totale réduite (principe de totalité) - [Voir Criminal Law - Topic 5804 ].

Droit criminel - Cote 5886

Peine - Conduite avec capacité affaiblie - [Voir Criminal Law - Topic 5886 ].

Cases Noticed:

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), refd to. [para. 4].

R. v. Norris (1988), 41 C.C.C.(3d) 441 (N.W.T.C.A.), refd to. [para. 10].

R. v. McCoy (R.A.) (2006), 310 N.B.R.(2d) 118; 800 A.P.R. 118; 2006 NBQB 329 (T.D.), refd to. [para. 10].

R. v. Skolnick, [1982] 2 S.C.R. 47; 42 N.R. 460, refd to. [para. 13].

R. v. Robertson (E.) (1998), 162 Nfld. & P.E.I.R. 163; 500 A.P.R. 163; 124 C.C.C.(3d) 558 (Nfld. C.A.), leave to appeal denied (1999), 236 N.R. 395; 180 Nfld. & P.E.I.R. 180; 548 A.P.R. 180 (S.C.C.), refd to. [para. 14].

R. v. Belak-Kruse (M.P.) (2009), 473 A.R. 397; 2009 ABPC 100, refd to. [para. 14].

R. v. Feistl (K.), [2009] A.R. Uned. 297; 2009 ABPC 84, refd to. [para. 14].

R. v. Cheetham (1980), 53 C.C.C.(2d) 109 (Ont. C.A.), refd to. [para. 15].

O'Hara v. Harrington, [1962] Tas. S.R. 165, refd to. [para. 15].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 18].

R. v. Sparkes (1978), 16 Nfld. & P.E.I.R. 363; 42 A.P.R. 363 (Nfld. C.A.), refd to. [para. 20].

R. v. Scott (1985), 54 Nfld. & P.E.I.R. 32; 160 A.P.R. 32 (Nfld. Dist. Ct.), refd to. [para. 20].

R. v. Finelli, [2008] O.J. No. 2537 (Sup. Ct.), refd to. [para. 20].

R. v. Johnston, [1989] B.C.J. No. 1542 (C.A.), refd to. [para. 20].

R. v. Yeo (1983), 45 Nfld. & P.E.I.R. 49; 132 A.P.R. 49 (P.E.I.C.A.), refd to. [para. 20].

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290; 787 A.P.R. 290; 2006 NBCA 55, refd to. [para. 21].

Counsel:

Avocats:

The appellant, per se;

Kelly Winchester, for the respondent.

This appeal was heard on March 12, 2010, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on March 17, 2010.