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SENTENCING - Causing bodily harm by criminal negligence - Forfeiture

Wednesday, February 12, 2020 @ 9:57 AM  

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Appeal by the Crown from a decision of a sentencing judge refusing to make a DNA order and an order for the forfeiture of the respondent’s motor vehicle. The respondent was convicted of criminal negligence causing bodily harm because of a motor vehicle accident in which he struck the victim after she exited his vehicle during an argument. The respondent ingested cocaine prior to the incident. The respondent remained at the scene and admitted liability. Because of the accident, the victim, 25, was paralyzed. The sentencing judge rendered an oral decision that was transcribed. The transcript edited for grammar and spelling was forwarded to the parties. The judge then issued a written decision after the Notice of Appeal was filed which included substantive additions to the oral decision, such as an analysis of the cases, a review of the law, and consideration of circumstances of the case not present in the original decision.

HELD: Appeal allowed. The proposed ancillary orders were granted. The changes in the final written version were changes of substance, filling in the analytical parts that were absent from the oral decision. The sentencing judge was precluded from doing an analysis that was not done in the first instance. Her oral decision forwarded to the parties was considered on appeal. The sentencing judge erred in only referencing the impact of DNA samples on the privacy and personal integrity of the offender and not circumstances of the offence as required by s. 487.05(3) of the Criminal Code. The impact of a DNA order as it related to the respondent’s privacy and security of person would not outweigh the circumstances of this offence. A DNA sample should be provided. The oral decision did not address the presumptive nature of the forfeiture provisions nor did it explain the circumstances that would justify the forfeiture order not being granted. The impact on the offender of a forfeiture order was most appropriately described as an inconvenience, or a financial hardship, which paled in comparison to the catastrophic consequences for the victim. This offence occurred in circumstances where the driving exhibited an extreme disregard for this victim and others in the area. This was an appropriate case to order a forfeiture of the motor vehicle that was involved in the incident. Sentence: Time served; four-year driving prohibition; DNA order; forfeiture order.

R. v. Desmond, [2020] N.S.J. No. 9, Nova Scotia Court of Appeal, C.A. Beaton, J.W.S. Saunders and J.E. Scanlan JJ.A., January 10, 2020. Digest No. TLD-February102020008