Court of Appeal for Ontario

Date: October 4, 2019 Docket: C64427

Judges: Feldman, Benotto and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Marco Gauthier-Carrière Appellant

Counsel

Marco Gauthier-Carrière, in person

Delmar Doucette, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard

April 11, 2019

On Appeal

On appeal from the sentence imposed on July 13, 2017 by Justice Hugh R. McLean of the Superior Court of Justice.

Reasons for Decision

Feldman J.A.:

Facts and Conviction

[1] The appellant was convicted by a jury on April 5, 2017 of impaired driving causing death contrary to what was then s. 255(3) of the Criminal Code, R.S.C. 1985, c. C-46, and criminal negligence causing death contrary to s. 220 of the Criminal Code. He was 21 years old at the time the offences occurred. He had consumed alcohol and marijuana before getting behind the wheel with his girlfriend as the front seat passenger.

[2] The appellant was driving on Montreal Road in Ottawa when his car crossed the median and the two opposing lanes of traffic. The car then travelled onto the adjoining grass area where it hit a concrete light standard. The light standard fell onto the car, killing the appellant's girlfriend. The appellant was also seriously injured.

[3] The appellant was released on an undertaking after arrest. One of the conditions of his release prohibited him from driving. He was subject to this condition for 3 years and 3 months. During this period, on March 27, 2016, the appellant drove. As a result, he was charged with breach of undertaking. He pled guilty to the breach after he was sentenced on the two driving offences on July 13, 2017, and received a 21-day sentence concurrent to the sentences imposed for impaired driving causing death and criminal negligence causing death.

[4] With respect to those offences, the appellant was sentenced to 5 years in prison concurrent on each count as well as a 10-year driving prohibition. This sentence appeal relates only to the driving prohibition.

Sentencing Judge's Reasons

[5] In his reasons for sentence, the sentencing judge concluded as follows:

Therefore, when I consider the evidence that is before me with regard to sentence and the incident itself, the Court is of the view that a sentence of five years in the penitentiary will meet the ends of justice. There will also be an order prohibiting you from driving for a period of 10 years. Thank you. There will be no DNA. And the sentence will be five years on count 1 concurrent to a five year sentence on count 2.

The Lacasse Error

[6] Because the sentencing judge did not state in the reasons when the driving prohibition would take effect, and the order that he signed on that day provided that the driving prohibition was "[f]or a period of 10 years, commencing on today's date", the appellant submits, and the Crown agrees, that the sentencing judge committed the error identified by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, by ordering that the driving prohibition commence on the date of sentencing rather than at the end of the period of imprisonment.

[7] In Lacasse, the court pointed to the wording of what was then s. 259(2)(a.1) of the Criminal Code, which had been amended to specifically add the words "plus any period to which the offender is sentenced to imprisonment" to the period of the driving prohibition in cases where the offender is liable to imprisonment for life but receives a sentence other than life. By adding these words, the court in Lacasse concluded that "Parliament was making it clear that it intended driving prohibitions to commence at the end of the period of imprisonment, not on the date of sentencing": at para. 109. Therefore, an order that the driving prohibition commence on the day the sentence commences rather than on the date of release is an error in law.

[8] Because the Crown agreed with duty counsel on this inmate appeal that the sentencing judge made the Lacasse error, the court was not asked to rule on the meaning or effect of the wording of the prohibition order.

Remedy for the Lacasse Error

[9] In Lacasse, at para. 110, the court described the remedy for the error as a simple mathematical operation: the term of imprisonment imposed is subtracted from the period of the driving prohibition, which then commences at the time of the offender's release.

[10] In addition, the Supreme Court in Lacasse addressed the issue of whether credit should also be given for time spent subject to a presentence driving prohibition that was imposed as a condition of release. On that point, the Supreme Court stated, at para. 113:

In short, where a driving prohibition is not only one of the release conditions imposed on an accused but also part of the sentence imposed upon his or her conviction, the length of the presentence driving prohibition must be subtracted from the prohibition imposed in the context of the sentence.

[11] On this appeal, duty counsel and the Crown agree that in order to calculate the accurate effective period for the driving prohibition in accordance with Lacasse, the period of incarceration of 5 years must be subtracted from the 10-year driving prohibition. Subject to the issue discussed below, this would leave a driving prohibition of 5 years, commencing upon the appellant's release from custody.

The Issue of Credit for Breached Presentence Prohibition

[12] The one outstanding issue on which they do not agree is whether Lacasse also requires the deduction of the entire period of the presentence driving prohibition, or whether the court has the discretion to modify the size of the deduction, because, in this case, the appellant breached that condition.

[13] The appellant was subject to a driving prohibition while on presentence release for 3 years and 3 months. Duty counsel submits that the appellant is entitled to credit for this full amount, with the result that the 5-year driving prohibition running from the time of the appellant's release would be reduced to 1 year and 9 months.

[14] The Crown submits that the appellant's breach of his release conditions disentitles him to any credit because the release condition prohibiting him from driving failed to have its intended effect. As a secondary position, the Crown submits that at least the period of the presentence driving prohibition following the breach should not form part of the credit.

[15] While the Supreme Court in Lacasse did not discuss the issue whether a sentencing judge has a residual discretion with respect to the amount of credit to be given for a presentence driving prohibition that was breached, its analysis of the fresh evidence of other breaches by M. Lacasse and their potential effect on his sentence is instructive.

[16] M. Lacasse pled guilty to two breaches of his recognizance subsequent to his sentencing for the impaired driving causing death offences. Although M. Lacasse's breaches were not driving breaches, the Supreme Court noted that "they are evidence of a lack of respect on the respondent's part for court orders and for the law, which relates directly to the conditions for his rehabilitation": at para. 118. The Crown sought to introduce evidence of these breaches as fresh evidence on the sentence appeal but the Court of Appeal refused.

[17] The Supreme Court found that to be an error by the Court of Appeal because "the evidence of the two breaches of the recognizances could have affected the weight given to the favourable presentence report and could therefore have affected the final sentencing decision. In particular, the Court of Appeal might have reached a different conclusion if it had admitted that evidence, which would have helped it in assessing the fitness of the sentence that had been imposed at trial": at para. 120.

[18] In my view, applying similar reasoning, the fact that the appellant breached the driving prohibition that was a condition of his presentence release also demonstrated a lack of respect for court orders and the law. As this was an inmate appeal, this court was not given full information about the circumstances of the breach. Duty counsel stated that the appellant was driving someone to the hospital at the time, but it was not part of the record before the court. The appellant pled guilty and was sentenced to 21 days concurrent for the breach. That sentence would have taken into account the circumstances of the breach.

Analysis and Decision

[19] The Crown submitted that this court not follow the British Columbia Court of Appeal decision in R. v. Burke, 2017 BCCA 381, 21 M.V.R. (7th) 43. There the court rejected a similar Crown submission on the basis that, whether or not the court retains any residual discretion after Lacasse to modify the extent of the deduction for time spent subject to a presentence driving prohibition, there was no basis to deny the credit where the appellant had been sentenced separately for a breach of a driving condition.

[20] I would accept the submission of the Crown because it does not appear that the British Columbia Court of Appeal considered the portion of the Lacasse decision that discussed the fresh evidence and the effect that breaches of recognizance could have on a court's sentencing decision. In Lacasse, there had also been a guilty plea to the breaches, and M. Lacasse was sentenced to an additional 15 days' imprisonment. But that did not prevent the Supreme Court from saying that the Court of Appeal should have taken the breaches into account when assessing the fitness of the sentence imposed at trial.

[21] In conclusion, the Crown's position was that this court should exercise its discretion by according no credit for the period of the driving prohibition following the breach, approximately 1 year, 3 months. Duty counsel responded that if there were to be any reduction in the credit, it be a maximum of 3 months, bringing the total driving prohibition to 2 years following the appellant's release.

[22] I would accept the submission of the Crown. In the context of serious driving offences that resulted in the death of a passenger in the car, the appellant's failure to strictly abide by the driving prohibition that was a condition of his release indicates that the appellant did not accept the seriousness and reason for the driving prohibition, and his obligation to obey the law. I would therefore grant leave to appeal the sentence and order that the period of the driving prohibition be 3 years following the appellant's release from custody. On consent, I would also set aside the imposition of the victim surcharge.

Released: October 4, 2019

"K. Feldman J.A."

"I agree. M.L. Benotto J.A."

"I agree. David Brown J.A."