R. v. Harding

R. v. Harding Court Court of Appeal Date 1999-01-25 Citation 1999 NSCA 48 Docket CAC 148964 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Flinn, Edward J. (Honourable Justice) Document Type Decision Decision Content Date: 19990125 Docket: C.A.C. 148964 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Harding, 1999 NSCA 48 Flinn, Hallett and Cromwell, JJ.A. BETWEEN: JAMES FOSTER HARDING ) Appellant in person ) Appellant ) ) - and - ) ) James A. Gumpert, Q.C. ) for the Respondent HER MAJESTY THE QUEEN ) ) Respondent ) Appeal Heard: ) January 19, 1999 ) ) ) Judgment Delivered: ) January 25, 1999 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Hallett and Flinn, JJ.A. concurring. CROMWELL, J.A.: After trial in the Provincial Court, the appellant, Mr. Harding, was convicted by Randall, Prov. Ct. J. of operating a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to s. 253(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. His appeal from conviction was dismissed by this Court (Clarke, C.J.N.S., Hart and Flinn, JJ.A.) on April 3, 1998; R. v. Harding (J.F.) (1998), 166 N.S.R. (2d) 235. He now seeks leave and, if leave is granted, appeals the sentence of 45 days incarceration to be served intermittently, 2 years probation and a 3 year driving prohibition. The facts giving rise to the conviction were stated by Clarke, C.J.N.S. in his reasons on behalf of this Court at the time of the conviction appeal: The evidence of Constables Rudback and Darrach was that about 3:00 o’clock in the morning, they observed Mr. Harding driving a motor vehicle the wrong way on a one way street in Halifax. Upon stopping the vehicle they observed Mr. Harding had blood shot eyes, emitted a strong smell of alcohol, was sleepy in his demeanor and was unsteady on his feet. As a result of these observations, the Constables concluded Mr. Harding was driving a motor vehicle under the influence of alcohol. This was the evidence of the two Crown witnesses at trial. No evidence was offered by the defence. The appellant has two previous convictions for alcohol related driving offences. The sentence of incarceration has been served and the appellant does not take issue with the probation order. The main arguments made by the appellant are that a conditional discharge for curative treatment should have been imposed and that his driving privileges should be restored because he has been punished enough by and with the use of alcohol and it is now safe to allow him to drive once again. Before the sentencing judge, the appellant sought a conditional discharge for curative treatment under s. 255(5) of the Criminal Code: 255. (5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs. The trial judge, after hearing the evidence of Dr. Eric Hansen and the appellant and the submissions of counsel, declined to make that order saying: When I look at the presentence report together with the comments of Dr. Hansen in court here this afternoon, taking into account the past history of Mr. Harding both with respect to his consumption of alcohol and his attempts to .. to take hold of that, take care of that coupled with his offences involving drinking and driving including the one that’s presently before the Court, I’m not satisfied of the curative treatment aspects of the s. 255 apply; it may have applied ten years ago, but I don’t think you have application today. We have reviewed the evidence concerning the appellant’s background which is in the record, the additional reports of Dr. Hansen filed at the hearing of this appeal and have considered the submissions, both written and oral. We have noted in particular Mr. Harding’s considerable efforts to control his difficulties with alcohol. Mr. Harding’s background and circumstances are most sympathetic and we have given them careful consideration. However, these are not the only matters that must be taken into account. In cases of drinking and driving offences, general deterrence, that is, the deterrence of others from committing the offence, is an important, if not the paramount, consideration in sentencing: see, e.g. R. v. Biancofiore (1997), 35 O.R. (3d) 782 (C.A.). Moreover, drinking and driving, as the appellant knows from his own tragic loss of his mother, creates situations of danger to the public at large and from which the public should be protected by the courts. While we must carefully consider the personal circumstances of the appellant, we must also consider and give appropriate weight to the need to deter others and protect the public. The role of this Court on an appeal against sentence is limited to determining whether the sentence is clearly unreasonable: R. v. Shropshire, [1995] 4 S.C.R. 227. At the time of each of his two prior convictions, the appellant received one year driving suspensions and fines. Regrettably, we now have before us a third conviction for a drinking and driving offence. While we commend the appellant’s efforts and resolve not to repeat this kind of offence, we cannot conclude that the sentence imposed by the trial court, taking into account the appellant’s prior record and the sentences previously imposed on him, was clearly unreasonable. The interests and needs of the appellant must be balanced with the need to deter others and protect society. The sentence imposed does this in a reasonable way. I would grant leave to appeal but dismiss the appeal. Cromwell, J.A. Concurred in: Hallett, J.A. Flinn, J.A. C.A.C. No.148964 NOVA SCOTIA COURT OF APPEAL BETWEEN: JAMES FOSTER HARDING ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: HER MAJESTY THE QUEEN ) ) CROMWELL, J.A. ) Respondent ) ) ) ) ) ) )