R. v. Outifrakh, 2014 ONCJ 589

Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Wassim Outifrakh

Before: Justice Alder

Heard on: December 6, 2013 and July 25, 2014

Reasons for Judgment released: August 15, 2014

Counsel:

• Mr. Carl Lem, for the Crown
• Mr. May, for Wassim Outifrakh

ALDER J.:

Charges and Guilty Pleas

1On December 6, 2013 Wassim Outifrakh plead guilty to impaired driving causing death; contrary to Section 255(3) of the Criminal Code of Canada.

2A pre-sentence report was ordered, and a sentencing hearing date was set for April 1, 2013. At the time, Mr. Outifrakh was out of custody on bail.

3On January 10, 2014 he was arrested for breaching conditions of his release, and has been in custody since. On July 25, 2014, he pled guilty to one count of breaching his recognizance of bail – failing to abstain from the consumption of alcohol – contrary to Section 145(3) of the Criminal Code of Canada.

Crown and Defence Submissions

4The Crown submits that the appropriate sentence for the impaired driving causing death offence is 6 years and suggests a concurrent 45-day sentence for the breach; with pre-trial credit to be given at 1.5 for 1 for the time from arrest to release, and then 1 for 1 for the pre-trial custody following the breach. In addition, the Crown seeks a 15-year driving prohibition, and a DNA order.

5Defence counsel submits the appropriate range of sentence is 3 1/2 to 4 years, minus credit for pre-trial custody. Agreeing with the Crown, that the pre-trial credit should be calculated as 1.5 for 1 for the initial period of detention, and then 1 for 1 for the period following the breach. However, defence also asks for some credit for the time spent on bail – suggesting .5 for 1. In regards to the length of the driving prohibition, defence counsel suggests a period of 10 years.

The Facts

6In regards to the facts, two agreed statement of facts were filed along with a Collision Reconstruction Report.

7On Sunday, March 10, 2013 at approximately 7:40 a.m., Janet Clermont had just finished work and was on her way home. She was driving northbound on Dunning Road, approaching its intersection with Innes Road, in rural east Ottawa.

8At the same time, the accused, Mr. Outifrakh was driving eastbound along Innes Road. He had just spent the night at the Casino Lac Leamy in Gatineau, Québec.

9Mr. Outifrakh failed to stop at the stop sign at Dunning Road, and collided with Ms. Clermont's vehicle at a high speed as it passed through the intersection. Both vehicles ended up in the field in the north-west quadrant of the intersection. The Collision Reconstruction Report concluded that Mr. Outifrakh made no attempt to stop or brake, or any steering manoeuvre to avoid collision. Witnesses who had been travelling northbound on Dunning Road in front of Ms. Clermont observed Mr. Outifrakh's vehicle approaching the intersection at too high a speed to be able to make the stop. They saw the collision occur behind them, and returned to the scene. They called 911 at 7:41 a.m., and emergency services were dispatched.

10Ms. Clermont was pronounced dead at the scene. Ms. Clermont's cause of death was "multiple trauma" and death was inevitable; and would have ensued nearly instantaneously.

11Cst. Ben Albert was the first police officer on scene, arriving at 7:49 a.m. He found Mr. Outifrakh still in the driver's seat of his vehicle, smoking a cigarette. Paramedics began attending to Mr. Outifrakh and decided to take him to the hospital, while Cst. Albert followed.

12Mr. Outifrakh ended up providing samples of his breath into an approved instrument at the hospital at 11:02 a.m. and 11:23 a.m. They registered 161 milligrams of alcohol per 100 millilitres of blood, and 154 milligrams of alcohol per 100 millilitres of blood respectively. According to a toxicologist's readback of the breath samples, Mr. Outifrakh's blood alcohol concentration at the time of the collision was between 165 and 220 milligrams of alcohol per 100 millilitres of blood.

13Mr. Outifrakh was discharged from hospital at around 11:50 a.m., and then conveyed to the police station.

14On 8 April, 2013, Det. Taing executed a search warrant on the Ottawa Hospital, Civic Campus, seizing samples of Mr. Outifrakh's blood that had been drawn in the course of his treatment, and his hospital records. Subsequent analysis revealed that the blood alcohol concentration in these blood samples (at 9:00 a.m., the time of collection) was 203 milligrams of alcohol in 100 millilitres of blood. The hospital records showed that they had done their own analysis of Mr. Outifrakh's blood and ascertained that it contained 50 mmol/L (at the time of collection), which equates to 203 milligrams of alcohol per 100 millilitres of blood. Readback to the time of the collision, the blood samples indicate that Mr. Outifrakh's blood alcohol concentration at the time of the collision was between 203 and 230 milligrams of alcohol per 100 millilitres of blood.

15Mr. Outifrakh was detained after a contested bail hearing on 30 April 2013, and remained in custody until he was released at a bail review on 24 June 2013. He was on a recognizance with conditions including that he live with his parents, and remain under house arrest - unless accompanied by one of his sureties. He was also required to abstain from the consumption of alcohol, and to wear two electronic monitoring ankle bracelets, which were owned and administered by Recovery Science Corporation. One bracelet was to monitor the presence of any alcohol in his body by analyzing his perspiration for alcohol, and the other bracelet was to monitor his location via GPS.

16On 24 December 2013, Mr. Outifrakh consumed alcohol in a quantity that, according to the monitoring bracelet, resulted in a peak blood alcohol concentration of approximately 73 milligrams of alcohol in 100 millilitres of blood.

17That was the only instance of alcohol consumption detected by the bracelet. However, on the following days subsequent to his consumption, Mr. Outifrakh applied alcohol externally to the monitoring bracelet:

• 25 December 2013
• 26 December 2013
• 28 December 2013 (twice)
• 29 December 2013
• 30 December 2013
• 31 December 2013 (twice)
• 1 January 2014
• 2 January 2014
• 3 January 2014

18On 25 December 2013, a representative of Recovery Science Corporation called Mr. Outifrakh to discuss the bracelet's readings from the night before. Mr. Outifrakh denied consumption.

19On 7 January 2014, representatives of Recovery Science Corporation attended Mr. Outifrakh's home and replaced his bracelet in order to ascertain whether or not it was working properly. Mr. Outifrakh continued to maintain that he had not consumed alcohol or introduced externally to the bracelet a substance containing alcohol. Subsequent testing of the old bracelet confirmed that it was functioning properly.

20Mr. Outifrakh has no criminal record. His driving record contains the following entries:

Offence Date	Conviction Date	Offence	Demerit Points	Circumstances
6 July 2012	20 July 2012	Driving with handheld device	0
6 April 2012	25 May 2012	129 km in 80 km zone	4	Charged for 132km in 80 km zone
30 Sept 2009	16 Oct 2009	65 km in 50 km zone	0
3 Feb 2008	19 March 2008	Driving left of centre	3	Crossed lane and struck oncoming car
20 Sept 2007	4 Nov 2007	75 km in 50 km zone	3

Pre-Sentence Report and Other Materials

21A pre-sentence report was prepared and filed. It is noted he was cooperative with the probation officer.

22Mr. Outifrakh is 25 years old. As mentioned, he has no prior criminal record. He came to Canada in 2003 with his family, and became a Canadian Citizen in 2009. He was raised in a close-knit, pro-social family.

23He had difficulties in school and stopped attending school at the age of 18. He has had various employment for relatively short periods of time. His last employment was in March of 2013. He would like to be a musical artist.

24He stated that he regularly consumed marihuana from the ages of 15 to 19, but then stopped, and that he only experimented with other drugs. He indicated that he did not believe he had an alcohol problem, and stated he had not consumed alcohol since his release on bail. This, however, was not true; as he has now pled guilty to consuming alcohol while on bail. He did acknowledge he had an issue with gambling, and following the offence, he sought counselling at Serenity Renewal for Families.

25The accused also advised that he was seeing Dr. Dufour at the Royal Ottawa Hospital to help deal with post-traumatic stress resulting from the offence. In regards to the offence, he stated that the offence was a tragedy, and that he feels horrible that someone lost their life and he thinks 'what if' daily.

26When asked by the court if he had anything to say, Mr. Outifrakh gave his condolences to Ms. Clermont's family; he apologized for the pain he has caused and noted the hardest part of his life is waking up knowing he took a life. He stated that he understands his mistake, and is taking responsibility; adding he has learnt a lot, and will do a lot when he is released to inform people of the consequences of drinking and driving.

27Also presented to the court were victim impact statements. It is clear from these statements and the family and friends of Ms. Clermont present in court at the sentencing hearing, that she was a very special person; a mother, grandmother, wife and friend who was dearly loved, and whose death has profoundly affected many individuals.

28Her husband's statement speaks of how his life will never be the same again, of the immeasurable loss; her sister wrote of how she was denied the chance to say goodbye, and how her heart is broken. Her daughter spoke of waking up every day, hoping it is a dream, of the sleepless nights, nightmares, flashbacks, of the pain of losing a mother. She also spoke of the loss to her son; of him not having the chance to grow up with a loving, caring, grandmother. There was also a statement from Ms. Clermont's 11-year-old grandson. He speaks of feeling really sad, of realizing he will not see his grandmother again, that she will not be there for his soccer games, birthdays, or other occasions. He speaks of how sad his brothers are; of how sad everyone is.

Case Law

29Both counsel provided the court with case law. Sentencing is a very individualized process and cases can generally be distinguished on their facts; either as they pertain to the circumstances of the offence, or the offender. It is for that reason that I will not refer to each case provided by counsel.

30Prior cases can, however, be of assistance in identifying the weight and importance to be accorded to specific principles and/or objectives of sentencing in relation to certain offences. They can also assist in identifying factors or circumstances as aggravating or mitigating, and identifying ranges or trends in relation to certain offences and/or circumstances.

31The Crown submitted that the cases it filed with the court show that there has been, and continues to be, a slow increase in the length of sentences for impaired driving causing death cases.

32In R. v. Junkert, 2010 ONCA 549, the Ontario Court of Appeal noted that: "courts should be cautious in rigidly applying a range of sentences in cases involving drinking causing death" and that in recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society's abhorrence for the often-tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

33A year later, the same court in R. v. Kummer, 2011 ONCA 39 again noted an increase in sentences. The court stated:

"As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences of four and five years for such offences in R. v. Ramage and R. v. Junkert."

In both of those cases, the accused was a first time offender. The court went on to say that, the sentences in Ramage and Junkert are not to be seen as a cap; again, cautioning against thinking rigidly about sentence ranges in drinking and driving cases. In Kummer, the Court of Appeal upheld an 8-year sentence.

34There is no dispute as to the principles that must be applied in this case. Sentences for drinking and driving offences that result in death must emphasize the aims of general deterrence and denunciation.

35For decades, the courts have made observations and comments about the carnage, pain and suffering, caused by drunk drivers. Yet, people continue to drink and drive and to kill; causing immeasurable pain and suffering to those whose lives are forever affected by their selfish decisions.

36The continued prevalence of this offence only serves to illustrate that the courts must continue to emphasize general deterrence, denunciation, and aim to unequivocally deliver the message that this is criminal behaviour, which will carry significant legal consequences. However, the other principles and objectives of sentencing cannot be ignored. Rehabilitation and specific deterrence are also very important. Often in these cases, particularly because many involve first time offenders, there is a balancing of competing interests that must be done.

Analysis

37Begin by characterizing the relevant facts and circumstances as aggravating or mitigating.

38There are numerous aggravating circumstances surrounding the collision including the following:

• It occurred in the early morning
• The road conditions were good and there was nothing unusual
• The accused failed to stop
• There is evidence of speeding
• There is no evidence of braking, or any avoidance steering
• Eight minutes after the collision when the police arrived, the accused was sitting in his car, smoking a cigarette

39There are also a number of other aggravating factors including:

• The breathalyser readings were more than twice the legal limit
• The accused's driving record, while only 24 years old at the time of offence, he had accumulated 10 demerit points, and been convicted of five Highway Traffic Act offences from 2007 to 2012 – including three speeding offences
• That after being detained for some time, he was released on bail and breached a crucial condition. This was not, what is sometimes referred to as a technical breach, but a breach of a core condition of his release
• Then after breaching, he deliberately lied to authorities, including representatives of Recovery Science Corporation, again in breach of one of his release conditions, and then to the Probation Officer preparing his pre-sentence report. He also tampered with the alcohol-monitoring bracelet in an attempt to conceal his breach
• And of course, the tragic consequences, which resulted in the loss of a life and so many others, being forever changed

45There are also some mitigating factors, including that Mr. Outifrakh is a young man with no prior criminal record who has plead guilty and accepted responsibility for his actions. He has expressed remorse and demonstrates insight into his actions and their consequences. He now appears willing to address any issues he may have and overall had led a relatively pro-social life until these offences. He is also fortunate to have a supportive family who will continue to support him and assist him with his rehabilitation.

46All of these factors must be balanced and due consideration must be given to the principles and objectives of sentencing.

47After having done so, I have determined that a sentence of four years and nine months is appropriate. This is a substantial sentence for a young man without any prior convictions but Mr. Outifrakh chose to drive while impaired that morning without consideration to the fact he was endangering the life of others. While it is often said that drunk drivers do not intentionally set out to injure or kill someone, perhaps it is time to recognize that although there may be some truth to that statement, the reality is that drunk drivers set out without any consideration of the fact that they may injure or kill someone. As the Crown submitted anyone over the age of ten, knows that drunk driving kills and when someone drives drunk they are ignoring the reality, choosing not to care and demonstrating a complete disregard for the safety of others. Their very high level of moral blameworthiness must be recognized and reflected in the sentences imposed. In this particular case had it not been for the breach of recognizance, I would have been inclined to impose a sentence in the range of 4 to 4 1/2 years, but I find the breach extremely aggravating and believe the sentence must be increased to reflect its seriousness.

Pre-Trial Custody Credit

49Turning to the issue of pre-trial custody. The time from Mr. Outifrakh's arrest to his release on bail is a period of 106 days, being from March 10th 2013 to June 24th 2013. This time period is to be credited at 1.5 for 1, for a credit of 159 days. The period from January 10th 2014, when he was arrested for breaching his release conditions until the sentencing hearing on July 25th 2014 is a period of 196 days. In light of the fact Mr. Outifrakh was in custody because of breaches, enhanced custody is not appropriate and the credit will be one for one. However from the sentencing hearing date to today's date I am prepared to give him enhanced credit that is a period of 20 days, at 1.5 for 1 for an additional credit of 30 days.

50Defence counsel has requested that Mr. Outifrakh be given credit for the time he spent on bail, while Crown counsel submits no credit should be given. In R. v. Downes, Justice Rosenberg held that time spent under stringent bail conditions especially under house arrest must be taken into account as a relevant mitigating factor, however he noted that the amount of credit to be given for this time period is within the discretion of the trial judge and will depend on a number of factors. These factors include the length of time under house arrest, the stringency of the conditions, the impact on the offender's liberty, and the ability of the offender to carry on normal relationships, employment and activities.

50Mr. Outifrakh's bail conditions included that he not be away from his residence except in the presence of one of his sureties and as previously mentioned he was to be subject to alcohol and GPS monitoring by Recovery Science Corporation at all times. His other bail conditions were not particularly onerous and were the more standard conditions including; keep the peace and be of good behaviour, not drive a motor vehicle, abstain from the consumption of alcohol and non-prescription drugs, and remain within the jurisdiction of the city of Ottawa. No specific evidence was presented to the court on the impact these conditions had on Mr. Outifrakh, however the court may infer by their very nature that they would have had some impact on his liberty. Mr. Outifrakh was subject to these conditions for 200 days, before he breached and returned to custody. While he did breach his conditions, he had been subject to these conditions for 200 days without any allegation of breach and I find some credit must be assigned for that period of time. In the circumstances and without further evidence I am prepared to give Mr. Outifrakh credit of approximately one third to one or 70 days for the 200 days under bail conditions. Therefore, Mr. Outifrakh has a total pre-trial credit of 455 days. Four years and nine months or 1730 days minus 455 days equals 1275 days or approximately 3 1/2 years. The sentence on the breach will be 4 months concurrent.

Sentence and Orders

51In addition Mr. Outifrakh will be prohibited from operating a motor vehicle for a period of 12 years. There will also be an order that Mr. Outifrakh is to provide forthwith a sample of his DNA.

52Given that Mr. Outifrakh will be incarcerated for a substantial period and will then require some time to re-establish himself the victim fine surcharge is waived.