ACJ S.C.C. 02253 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Matthews, JJ.A. BETWEEN: HER MAJESTY THE QUEEN, and MICHAEL WAYNE MUISE, Respondent Mr. A.C. Reid and Mr. Peter MacKay, A/C, for the appellant Mr. P.B. Scovil, for the respondent Appeal Heard: October 16, 1990 Judgment Delivered: October 16, 1990 BY THE COURT: Appeal allowed and sentence varied to six months imprisonment for Criminal Code s. 221 offence, per oral reasons for judgment of Clarke, C.J.N.S., Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the court were delivered orally by CLARKE, C.J.N.S.: This is Crown appeal against the sentence imposed on the respondent, Michael Wayne Muise, on February 13, 1990. Mr. Muise pled guilty that on July 29, 1989 he was criminally negligent in the operation of a motor vehicle on Forest Street in Yarmouth and thereby caused bodily harm to Robert Hubbard, contrary to s. 221 of the Criminal Code. He was sentenced to serve 90 days on an intermittent basis, placed on probation for two years, with conditions, required to perform 100 hours of community service and prohibited from operating a motor vehicle for three years. Mr. Muise drove his car at an excessive speed through four‑way stop intersection, without stopping. He collided with car operated by Mr. Hubbard who was making lawful left turn. Mr. Hubbard was injured. Both cars were demolished. At the time of the accident Mr. Muise was disqualified from driving a motor vehicle. In addition, he was intoxicated, he was operating a car that was mechanically defective and he was not wearing a seat belt. That portion of his prior criminal record which is relevant to this offence includes the following:1981 ‑ dangerous driving, for which he was sentenced to serve 21 days1987 ‑ refusal of a Breathalyzer demand1988 ‑ Breathalyzer offence ‑ over 80Mr. Muise\'s prior motor vehicle violations include:August 1985 ‑ driving while disqualifiedDecember 1985 ‑ driving while disqualifiedApril 1987 ‑ driving while disqualified The pre‑sentence report is generally unfavourable. While indicating good work record, it reflects longstanding addiction to alcohol and general disrespect for the law. The effect of the trial judge's remarks at sentencing is that while he recognized the respondent was charged with serious offence from which the general public needs protection, he was not prepared to incarcerate the respondent and thereby take him out of the work force. In short, he decided to give Mr. Muise one more chance. After reviewing the entire record and considering the submissions of counsel made to the court this morning, with respect, we are unable to agree that the trial judge imposed sentence which is fit for the serious circumstances provoked solely by the imprudent, unlawful and exceedingly dangerous acts of the respondent. This court has emphasized, time and again, the need to stress general deterrence in an effort to protect the public against actions such as those committed by Mr. Muise. Similar observations have been made by the Supreme Court of Canada (see R. v. Hufsky (1988) 1988 CanLII 72 (SCC), 84 N.R. 365 at 381). Specific deterrence must also be emphasized. Somehow Mr. Muise must be made to realize that he cannot mix drinking and driving. His prior record is anything but promising. We recognize the need to consider the potential for the reform and rehabilitation of the respondent and in that respect, we have carefully considered what the trial judge said. Having regard for all of the circumstances, it is our unanimous opinion that the sentence is inadequate and fails to reflect the serious nature of the offence and the emphasis that must be placed upon both general and specific deterrence as they relate to the public in general, and the respondent in particular. (See R. v. McVeigh (1985) 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145.) Leave to appeal is granted and the appeal is allowed. We order that the sentence be varied to six months imprisonment, with credit being given the respondent for time already served since February 13, 1990. We further order that the probation order be varied by deleting therefrom the provision that the respondent perform 100 hours of community service. In all other respects the probation order and the prohibition order as issued by the trial judge will continue. C.J. N. S. Concurred in: Hallett, J.A. Matthews, J.A. IN THE COUNTY COURT FOR DISTRICT NUMBER THREE ON APPEAL FROM PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, APPELLANT VERSUS MICHAEL WAYNE MUISE, RESPONDENT HEARD BEFORE: His Honour Judge James D. Reardon, J.P.C. PLACE HEARD: Yarmouth, Nova Scotia DATE HEARD: February 13th, 1990 CHARGES: That at or near Yarmouth, in the County of Yarmouth, Nova Scotia, on or about the 29th. day of July, 1989 did operate motor vehicle while disqualified from doing so by reason of an order pursuant to Section 259 (1) of the Criminal Code, contrary to Section 259 (4) of the Criminal Code. AND FURTHER CHARGED: That at or near Yarmouth in the County of Yarmouth, Nova Scotia on or about the 29th. day of July, 1989 did without reasonable excuse refuse to comply with demand made to him by Cst. Bourassa‑Muise peace of­ficer, to provide then or as soon thereafter as is practicable, samples of his blood as in the opinion of qualified technician or qualified medical practioner were. necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to Section 254 (3) of the Criminal Code. COUNSEL: Robert Prince, Esq., for Prosecution Paul Scovil, Esq., for Defence CASE ON APPEAL S.C.C. 02253 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN, and MICHAEL WAYNE MUISE, Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.
Respondent male was convicted of criminal negligence in the operation of a motor vehicle - the offence occurred when he was disqualified from driving and he was intoxicated - six previous motor vehicle offences, 3 of which were criminal matters. 90 days intermittent, 2 years probation with conditions, 100 hours of community service and a 3 year prohibition from driving varied to 6 months plus the probation and driving prohibition having regard to the principles of deterrence  - the trial judge put too much emphasis on rehabilitation.