R. v. Mascarenhas, 2002 CanLII 41625 (ON CA)

Her Majesty the Queen v. Mascarenhas [Indexed as: R. v. Mascarenhas]

60 O.R. (3d) 465

[2002] O.J. No. 2989

2002 41625

Docket No. C35957

Court of Appeal for Ontario

Abella, Goudge and Simmons JJ.A.

July 31, 2002

Criminal law -- Sentencing -- Consecutive sentences -- Accused pleaded guilty to criminal negligence causing death, two counts of failing to comply with recognizance, one count of impaired driving and one count of driving while suspended -- Trial judge did not err in making sentences for each count of failing to comply with recognizance consecutive to sentence for criminal negligence causing death -- Trial judge erred in imposing consecutive sentence for impaired driving -- Sentences for criminal negligence and impaired driving should have been concurrent as both protect public interest in prevention and censure of drinking and driving.

Criminal law -- Sentencing -- Criminal negligence causing death -- Accused pleaded guilty to criminal negligence causing death after several Crown witnesses had testified at trial -- Accused's blood alcohol content extremely high at time of offence -- Accused on bail for drinking and driving offences and prohibited from driving at time of offence -- Accused had prior convictions for drinking and driving and had made little effort to address his alcoholism -- Sentence of nine years' imprisonment for criminal negligence causing death within acceptable range -- Sentence affirmed on appeal.

Criminal law -- Sentencing -- Totality principle -- Accused pleaded guilty to criminal negligence causing death, two counts of failing to comply with recognizance, one count of impaired driving and one count of driving while suspended -- Trial judge determined that appropriate total sentence was 12 years and imposed sentence of 10 1/2 years' imprisonment after giving accused credit of 18 months for time spent in pre-trial custody -- Total sentence departed so dramatically from sentences customarily imposed for those offences as to warrant appellate intervention -- Appropriate total sentence 10 years' imprisonment -- Accused credited with 18 months' pre-trial custody and sentence varied to 8 1/2 years' imprisonment.

The accused struck and killed two pedestrians. His blood alcohol readings were 339 and 353 milligrams of alcohol per 100 millilitres of blood. At the time of the accident, the accused was on bail for drinking and driving offences, his driver's licence was suspended for unpaid fines, and he was prohibited from drinking and from driving as a condition of his recognizance. He had a 15-year history of serious alcohol abuse and three prior convictions for drinking and driving. The accused pleaded guilty to impaired driving, driving while suspended and two counts of failing to comply with a recognizance. He elected to stand trial on two counts of criminal negligence causing death, and pleaded guilty to those charges after several witnesses had testified. The trial judge determined that the appropriate sentence was 12 years' imprisonment. Giving the accused credit of 18 months for 11 months served in pre-trial custody, the trial judge imposed a total sentence of 10 1/2 years' imprisonment, consisting of nine years concurrent for each count of criminal negligence causing death, six months consecutive for each count of failing to comply with a recognizance, six months consecutive for impaired driving and six months concurrent for driving while suspended. A lifetime driving prohibition was imposed. The accused appealed. [page466]

Held, the appeal should be allowed.

The sentence of nine years' imprisonment for criminal negligence causing death was appropriately severe and within the acceptable range. Sentences have increased over the years for drinking and driving offences, and recent amendments to the Criminal Code reflect the enhanced severity with which drunk driving offences are to be viewed. The accused had a history of alcohol abuse and of drinking and driving while extremely impaired. Prior judicial sanction appeared to have had no effect on him, and did not prevent him from re-offending or influence him to make serious attempts to stop drinking. He flouted judicial orders not to drink and drive, was before the courts on other charges at the time of the offences, and was under suspension when the offences occurred. The trial judge correctly viewed those factors as extremely aggravating. On the other hand, the totality of the sentence imposed, 12 years, was so dramatic a departure from the sentences customarily imposed for these offences as to warrant intervention. The total sentence should be varied to ten years' imprisonment.

The trial judge did not err in making the sentences for breach of recognizance consecutive to the sentence for criminal negligence causing death. Ensuring that those under a recognizance comply with its terms protects a different societal interest than the prevention of drunk driving, and it was no error in principle to impose consecutive sentences. However, the six-month sentence for impaired driving should not have been consecutive to the sentence for criminal negligence causing death. Both charges protected the same public interest and should be served concurrently.

The accused should be credited with 18 months for pre-trial custody, and the total sentence should be varied to 8 1/2 years' imprisonment.

APPEAL by an accused from a judgment of Lapkin J. (2000), 9 M.V.R. (4th) 311 of a sentence.

Cases referred to

R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, 176 N.R. 81, [1995] 3 W.W.R. 457, 26 C.R.R. (2d) 132, 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 8 M.V.R. (3d) 75; R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782, 119 C.C.C. (3d) 344, 29 M.V.R. (3d) 90, 10 C.R. (5th) 200 (C.A.); R. v. Gummer (1983), 1983 5286 (ON CA), 1 O.A.C. 141, 38 C.R. (3d) 46, 25 M.V.R. 282 (C.A.); R. v. Hayes (1994), 1 M.V.R. (3d) 188 (Ont. C.A.); R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.); R. v. Linden (2000), 2000 15854 (ON CA), 147 C.C.C. (3d) 299, 5 M.V.R. (4th) 76 (Ont. C.A.) (sub nom. R. v. L. (J.)); R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. McVeigh (1985), 1985 115 (ON CA), 11 O.A.C. 345, 22 C.C.C. (3d) 145 (C.A.); R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Shore (2001), 14 M.V.R. (4th) 177 (Ont. C.A.); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 255.1 Bill C-82, An Act to Amend the Criminal Code (impaired driving and other related matters), S.C. 1999, c. 32 Bill C-18, An Act to Amend the Criminal Code (impaired driving causing death and other matters), S.C. 2000, c. 25

Daniel Kleiman, for appellant. David Finley, for respondent. [page467]

The judgment of the court was delivered by

1ABELLA J.A.: -- As a result of driving with a blood alcohol level over four times the legal limit, the appellant Reinaldo Mascarenhas killed two pedestrians. At the commencement of proceedings, the appellant pleaded guilty to two counts of impaired driving causing death, impaired operation of a vehicle, one count of driving while under suspension and two counts of failing to comply with a recognizance. He elected to stand trial on two counts of criminal negligence causing death. After several witnesses testified, he pleaded guilty to these charges as well. As a result of this change of plea, two counts of impaired driving causing death were stayed.

2Lapkin J. imposed a sentence of 10 1/2 years. This was based on a total sentence of 12 years, less 18 months' credit for the 11 months the appellant served in pre-trial custody. He allocated the 10 1/2 years as follows:

-- nine years for each of the counts of criminal negligence causing death, to be served concurrently;

-- six months for each count of failing to comply with a recognizance, to be served consecutively;

-- six months for the charge of impaired operation of a motor vehicle, to be served consecutively;

-- six months for the driving while under suspension charge, to be served concurrently.

He also imposed a lifetime driving prohibition.

Background

3At the time of the accident on September 12, 1999, the appellant's blood-alcohol readings were between 339 and 353 milligrams of alcohol per 100 millilitres of blood. His vehicle left the road on a gentle curve, hitting Elvira Baldassarra and Nilva Frasson who were walking on a roadside path. Witnesses said the appellant made no attempt to correct the path of the car after it left the road. After he hit the victims, the appellant drove across a number of lanes, struck the centre concrete median, and rebounded back across those lanes before stopping at the side of the road.

4At the time of the accident, the appellant was on bail for drinking and driving offences, and his driver's licence was suspended for unpaid fines. As a condition of his recognizance, he [page468] was prohibited from drinking and from driving. Prior to being convicted of the charges in this appeal, the appellant had three prior convictions for drinking and driving. Two of those offences occurred while the appellant was before the courts on other drinking and driving charges. In one, the appellant had a blood-alcohol reading of 200 milligrams, and in the other, 300 milligrams.

5The appellant was 46 years old at the time of sentencing and had a 15-year history of serious alcohol abuse. His few attempts to stop drinking were unsuccessful. Probation records indicate that he was asked to leave one in-patient facility because of his lack of interest in the program and his negative influence on the other participants.

6On sentencing, Lapkin J. noted the appellant's restricted efforts to deal with his long-standing drinking problem, his record of drinking and driving offences, and the fact that at the time of these offences, he was violating both a driving suspension and a judicial order, factors calling for specific deterrence and denunciation. The need for general deterrence and the public's protection, Lapkin J. observed, were reflected in the fact that the maximum penalty for criminal negligence causing death is life imprisonment.

7While affording him some credit for them, the sentencing judge found that the timing both of the appellant's guilty plea (after several witnesses had already testified), and of his entrance into another treatment program (just prior to sentencing), reduced their mitigating impact. Moreover, while Lapkin J. took into account the appellant's expression of remorse to his probation officer and to the court, he found that the appellant's initial deflection of some responsibility to his passenger for not doing more to stop him, showed a failure to accept his own responsibility for the death of the victims.

8In imposing his sentence, Lapkin J. relied on the direction from this court in R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), where Finlayson J.A. said at p. 279:

The appropriate approach in . . . [such] cases . . . is to, first, identify the gravamen of the conduct giving rise to all the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

9Lapkin J. recognized that while the maximum sentence for criminal negligence causing death was life imprisonment, this [page469] sentence should be reserved for the worst offender and the worst offence. He found that although the appellant was "not far from the top", he did not merit the maximum sentence.

10The appellant's main argument is that the sentence is higher than the range of sentences imposed for these kinds of offences, and is therefore unfit. He also contends that the trial judge overemphasized specific and general deterrence at the expense of rehabilitation. In addition, he challenges the imposition of consecutive, rather than concurrent sentences for the charges of impaired operation of a motor vehicle and failing to comply with a recognizance.

11The Crown's core submission is that while the sentence is substantial, based on the persistence and gravity of the appellant's conduct, the sentence is fit and reflects no error in principle.

Analysis

12The Supreme Court of Canada has, in recent years, repeatedly directed appellate courts to defer to sentences imposed by trial judges unless the sentence is demonstrably unfit. (R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 182 D.L.R. (4th) 1).

13The appellant argues that since the highest sentence previously imposed in this province for criminal negligence causing death as a result of drunk driving was eight years, his sentence was so excessive as to be demonstrably unfit.

14As Chief Justice Lamer pointed out in R. v. M. (C.A.) at p. 567 S.C.R., an appellate court is justified in varying a sentence that is "in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes". In Shropshire at p. 250 S.C.R., Justice Iacobucci described the court's review function in determining whether a sentence is excessive -- or inadequate -- as including the following factor:

Unreasonableness in the sentencing process involves the sentencing order falling outside the "acceptable range" . . .

15In my view, the sentence of nine years imposed by Justice Lapkin for the appellant's criminal negligence causing death convictions was appropriately severe and within an acceptable range. It represented no error in principle for him to identify the appellant's conduct and personal circumstances as justifying this sentence.

16In cases like R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145, 11 O.A.C. 345 (C.A.) and R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193, courts have reinforced not only how serious and [page470] destructive offences committed by drunk drivers are, but also why such offences deserve the court's sternest opprobrium. Sentences for criminal negligence causing death which involve drunk driving have tended to be imposed at the higher end of the sentencing range. As this court noted in R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782 at p. 790, 119 C.C.C. (3d) 344 (C.A.): "[G]eneral deterrence is the paramount objective in sentencing for offences of drinking and driving, especially where serious consequences result."

17In 1994, this court affirmed a sentence of eight years for criminal negligence causing death as a result of impaired driving in R. v. Hayes (1994), 1 M.V.R. (3d) 188 (Ont. C.A.). Hayes had a 20-year problem with alcohol and a lengthy criminal record, including prior convictions for dangerous driving, driving while disqualified, refusing to provide a breath sample and impaired driving. The criminal negligence and impaired driving causing death charges were the result of an accident in which Hayes' van crossed into oncoming traffic and struck another vehicle, killing the driver and Hayes' own passenger. Prior to the accident, Hayes had been driving erratically, notably swerving and passing over the crest of a hill. The court held that the trial judge's sentence of eight years "was at the upper end of the range but, in all of the circumstances, a fit one".

18Several years later, this court affirmed a sentence of nine years for criminal negligence causing death as a result of reckless driving in R. v. Shore (2001), 14 M.V.R. (4th) 177 (Ont. C.A.). Shore transported stolen vehicles from Thunder Bay to Toronto for sale. He and his accomplice had discussed what they would do if the police gave chase while they were transporting a vehicle. Shore told his accomplice that they should drive "really crazy" to get the police to back off. During one of the trips, Shore and his accomplice stopped for gas and left without paying. The police were contacted and caught up with them. Shore proceeded to drive erratically at very high speeds in order to evade the police. He eventually hit another car, killing the driver instantly and seriously injuring his accomplice. At the time of the accident, he did not have a valid driver's licence, had numerous driving-related and other convictions, and had outstanding charges before the courts.

19The appellant argues that because his conduct involved alcohol, it is less morally culpable than the conduct that attracted a nine-year sentence in Shore. I have difficulty seeing how the voluntary consumption of an excessive amount of a substance like alcohol is an attenuating rather than an aggravating factor in driving offences.

20Two additional factors lead me to conclude that the sentence of nine years for criminal negligence causing death is not [page471] unfit. The first is the recent observation of this court in R. v. Linden (2000), 2000 15854 (ON CA), 147 C.C.C. (3d) 299, 5 M.V.R. (4th) 76 that sentences have increased over the years when the offence involves drinking and driving. In the court's words, at p. 300 C.C.C.:

. . . [the offence of criminal negligence causing death] can be committed in so many ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by an almost infinite variety of circumstances in which this offence can be committed . . .

The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increase in severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends towards demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

(Emphasis added)

21There is no doubt that the appellant's conduct tragically meets the test of the "deliberate endangerment" of the public referred to in Linden.

22The second persuasive factor is Parliament's decision to enact legislation reflecting the enhanced severity with which drunk driving offences are to be viewed. In 1999, it enacted Bill C-82, An Act to Amend the Criminal Code (impaired driving and other related matters), S.C. 1999, c. 32. As set out in the preamble, this legislation was based on the following principles:

Whereas the Parliament of Canada recognizes that impaired driving continues to pose a very serious threat to Canadians;

Whereas the Parliament of Canada is committed to ensuring that the provisions of the Criminal Code respecting impaired driving have a sufficient deterrent effect on potential offenders;

And Whereas the Parliament of Canada supports the principle that the sanctions to be imposed for an offence involving impaired driving must reflect the gravity of the offence as well as the degree of responsibility of the offender . . .

23Among other changes to the Criminal Code, R.S.C. 1985, c. C-46, this Bill increased sentences for failing to stop after an accident when bodily harm or death are involved, facilitated the collection of breath samples by police, and deemed blood alcohol levels above 160 milligrams per 100 millilitres of blood to be an aggravating factor on sentencing.

24In 2000, Parliament enacted Bill C-18, An Act to Amend the Criminal Code (impaired driving causing death and other matters), S.C. 2000, c. 25, increasing the maximum penalty for impaired driving causing death from 14 years to life imprisonment, [page472] and allowing for the collection of blood samples to test for drugs. It is especially telling that a maximum sentence of life imprisonment became available for the offence of impaired driving causing death, an offence previously viewed as being less serious than criminal negligence causing death.

25These changes to the Criminal Code give statutory expression to Parliament's intention that drinking and driving offences be treated with utmost severity by the courts and mandate an extension of the sentencing continuum in appropriate cases.

26Lapkin J. properly considered all the relevant aggravating and mitigating factors, as well as the principles of sentencing. He came to the conclusion that the aggravating factors significantly outweighed the mitigating factors and imposed a sentence accordingly.

27The aggravating features he found in this case include the following facts: the appellant had a history of alcohol abuse and of drinking and driving while extremely impaired; prior judicial sanction appears to have had no effect on him, and did not prevent him from re-offending or influence him to make serious attempts to stop drinking; he flouted judicial orders not to drink and drive; he was before the courts on other charges at the time of the offence; and he was under suspension when the offences occurred.

28On the other hand, as Lapkin J. noted, the appellant's mitigating circumstances had little leavening influence on the sentence. While he did eventually plead guilty to all of the charges and expressed remorse at his sentencing hearing, evidence was led that the appellant initially refused to accept full responsibility for his crimes, and that he did not make serious efforts to stop drinking until he was incarcerated. Evidence filed on this appeal indicates that the appellant is now enrolled in a substance abuse program, is receiving individual counselling to deal with his addiction, and is making progress. He is working full-time in a prison work program and his supervisor thinks well of his work.

29Due to the appellant's lack of motivation and success in the past, the trial judge, rightly in my view, did not see the appellant's rehabilitation as justifying a reduction in sentence. By comparison, in cases where lower sentences than the appellant's were imposed, there were distinguishing mitigating circumstances, such as youth, the absence of a criminal record, exemplary character, remorsefulness, meaningful rehabilitative efforts, or a significantly lower blood-alcohol level, none of which was present here.

30On the other hand, the totality of the sentence imposed, 12 years, is so dramatic a "departure from the sentences customarily imposed" for these offences, as to warrant intervention. I would [page473] vary the total sentence to ten years which, while at the outer limit of what has previously been imposed, nonetheless reflects the increased legislative and judicial recognition that sentences designed to attempt to deter and denounce the conduct represented in this case, are justified.

31The appellant argued that the two six-month sentences each for failing to comply with a recognizance, should not have been made consecutive to the sentence imposed for criminal negligence causing death. His submission is based on the proposition that offences that occur out of the same transaction are typically the subject of concurrent dispositions. However, in R. v. Gummer (1983), 1983 5286 (ON CA), 1 O.A.C. 141 at p. 144, 25 M.V.R. 282, this court stated that sentences for offences arising out of the same transaction or incident should not necessarily be made concurrent if the offences "constitute invasions of different legally protected interests, although the principles of totality must be kept in mind". In Gummer, the offences of dangerous driving and failing to remain at the scene of an accident were viewed as protecting different societal interests, and therefore warranted consecutive sentences.

32In my opinion, ensuring that those under a recognizance comply with its terms protects a different societal interest than the prevention of drunk driving, and it is therefore no error in principle to impose consecutive terms of imprisonment.

33However, the sentence on the charge of impaired operation of a motor vehicle should not have been consecutive. Lapkin J. imposed a consecutive sentence because, in his view, having a blood alcohol level over the legal limit is a "separate offence" and also because of the appellant's "extraordinarily high readings". Although s. 255.1 of the Criminal Code now deems that blood alcohol levels above 160 milligrams (twice the legal limit) shall be an aggravating factor on sentencing, it does not necessarily follow that the sentence for impaired operation of a motor vehicle should be made consecutive to other sentences. In this case, the charges of criminal negligence causing death and of impaired operation of a motor vehicle were protecting the same public interest: the prevention and censure of impaired driving. The six-month sentence imposed by Lapkin J. for impaired operation of a motor vehicle should therefore be concurrent to the sentence for criminal negligence.

34As a result, in addition to the lifetime driving prohibition, the total sentence imposed will be ten years; nine years for the criminal negligence causing death convictions, an additional year for the convictions for failing to comply with a recognizance, and six months concurrent for impaired driving. I agree with Lapkin J. that there should be a credit of 18 months for pre-trial custody, leaving a sentence of 8 1/2 years. [page474]

35I would therefore grant leave to appeal the sentence, and vary the sentence to 8 1/2 years.