Court File and Parties
Court File No.: Hamilton 15/7882 Date: 2016-10-18 Ontario Court of Justice
Between: Her Majesty the Queen — and — David Megna
Before: Justice George S. Gage
Heard on: September 27 and October 18, 2016
Reasons for Sentence released on: October 18, 2016
Counsel:
- Edward Slater, for the Crown
- Dean Paquette, for David Megna
GAGE J.:
Introduction
1Parents reasonably expect to outlive their children. Brothers and sisters anticipate having the lifelong benefit of the comfort and companionship of their siblings as they navigate, together, the joys and challenges of adulthood.
2Every father looks forward to nurturing and providing for his family. He reasonably expects that if the roles are eventually reversed it will not be until after the ravages of old age have intervened.
3For the Torres and Dawson families, by reason of a decision made by David Megna on September 4, 2015, the natural order of the universe was turned on its head.
4They suffer emotional wounds that will not heal. They endure a unique and debilitating anguish and pain that will not abate.
5Such is the misery and devastation produced all too often by those that choose to drink and then drive.
6The scourge of drunk driving is rendered both more perplexing, and more frustrating by the fact that more often than not, and this case is no exception, the offenders are men and women who are otherwise decent, law abiding citizens.
7While they do not intend to cause the carnage that results they do selfishly, and carelessly, ignore all of the aggressively publicized overwhelming evidence that driving after drinking can and does cause pain, disability, injury, death and inconsolable grief.
8Not long ago, and certainly within the ambit of my judicial tenure, sentencing for these offences for a first offender of otherwise good character generally involved terms of incarceration of less than two years. More recently there has been a trend in the courts of many jurisdictions across Canada, including Ontario, to increase the penalties for drinking and driving offences, particularly those that result in bodily injury and death. This is a reflection of society's abhorrence of the tragic consequences of drinking and driving and the fact that this problem persists despite countless awareness campaigns conducted over the years.
9At the same time the highest courts in the land also remind us that an individualized assessment, the principle of restraint and the importance of rehabilitation are all critical features of the sentencing calculus.
10Our courts have held that because the offences of impaired driving causing death and bodily harm can be committed in an almost infinite variety of circumstances there is no identifiable range of sentence that applies.
11That is the context within which the court must address the difficult question of determining a just, appropriate and proportionate sentence for David Megna for the crimes that he has committed.
Factual Background
Circumstances of the Offences
12At 11 am on September 4, 2015 David Megna and Tyler Torres went to the Honest Lawyer Restaurant located at 1070 Stone Church Road East, Hamilton. While there they consumed alcohol. They remained at the restaurant until just after 3 in the afternoon. They departed together in David Megna's vehicle. David Megna was driving. Tyler Torres occupied the front passenger seat.
13Megna drove his vehicle east on Stone Church Road East to the point where the same roadway becomes Paramount Drive. As the vehicle approached Upper Mount Albion Road it was travelling at a rate of speed that was excessive. At that point Megna lost control of the vehicle. It mounted the south curb where it rotated in a counter clockwise direction as it re-entered the roadway and then careened sideways directly into the path of a vehicle operated by Mark Dawson with which it violently collided. The force of the collision caused the Megna vehicle to rotate flip and come to rest on its passenger side and it caused the Dawson vehicle to rotate counter clockwise and come to rest on the grass shoulder.
14Both David Megna and Mark Dawson sustained significant injuries the most serious in both cases involving trauma to the head. Tyler Torres died at the scene as a result of the injuries he sustained in the crash.
15Blood taken from David Megna at the hospital where he was treated was analyzed. The analysis disclosed that Megna's blood alcohol concentration at the time of driving was between 238 and 258 milligrams of alcohol in 100 millilitres of blood. This is approximately three times the permissible legal limit of 80 milligrams of alcohol in 100 millilitres of blood.
16David Megna has no prior convictions for either impaired driving offences or any other type of Criminal Code offence. He has no record of prior Highway Traffic Act convictions.
Victim Impact
17It is quite simply impossible to overstate the pain, emotional anguish and devastation sustained by the Dawson and Torres families as a result of this event.
18The annual celebration of Labour Day at the beginning of September will now be an occasion of particular painful remembrance for the Torres family as will so many other special days in the calendar and special events in their lives when the absence of Tyler will irrevocably dampen occasions that for others are moments of joy and celebration.
19Mr. Dawson's ability to care for his family has been permanently compromised. Mrs. Dawson is so frustrated and overwhelmed that she is angry all the time. The husband she now knows bears little resemblance to the confident, capable and loving man she married. Their daughter Jenna is so traumatized by the event that she is unable to complete her high school education.
20The victim impact statements filed with the Court are heart wrenching. They collectively convey the monumental losses sustained by these two families with an eloquence far more compelling than this brief summary.
Circumstances of David Megna
21David Megna was born in Hamilton on April 20, 1990. His parents divorced when he was 4. He has lived with his mother since then.
22He was able to complete a high school education at Bishop Ryan Catholic Secondary School. Following high school he completed a two year diploma course in Electrical Engineering. Prior to the offences he had completed the requirements for a real estate licence. When not at school he worked part time.
23He has no prior criminal history of any sort.
24David had a pre-existing diagnosis of Tourette's syndrome which was largely controlled by medication. Since the date of the offences he has been unable to take the medication that eases the condition and the symptoms have been exacerbated.
25Prior to the events that bring him before the court he was involved in healthy and pro-social lifestyle. He is involved in a stable relationship and is engaged to be married.
26He has expressed remorse both by his pleas of guilt and by his public statement in court. I accept that the remorse he has expressed is both profound and genuine. I am satisfied that he appreciates the enormity of the harm he caused.
Principles of Sentencing
27The task of the sentencing jurist is accurately and succinctly described by Justice Paciocco in R v Casselman at paragraph 3 where he says:
The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s.718.2). The sentencing objectives suggested by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2 (c) – (e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases.
28The fundamental purpose of sentencing is encapsulated in section 718 of the Code which provides as follows:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.
29A sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender – per section 718.1 of the Code. The principle of proportionality insists that the sentence must reflect the seriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence. As Justice LeBel explained in R v Ipeelee:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
30Within the range of appropriate dispositions the penalty may be increased or reduced for aggravating or mitigating circumstances.
31In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives.
32General deterrence seeks to deter others from similar conduct by making a demonstration that the conduct will attract harsh or severe sanctions.
33Denunciation is society's condemnation of the particular offender's conduct. "It satisfies the community's desire and need to condemn certain conduct, and it also plays a positive role in communicating and reinforcing society's shared set of values."
34It has long been a guiding principle of sentencing in this Province that where youthful first offenders are concerned the Court, before imposing a custodial sentence should "explore other dispositions open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity, that no other sentence is appropriate"
35This principle was more recently reiterated by Justice Rosenberg in R. v. Priest (1996), 110 CCC (3rd) 289 where he observed:
As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".
The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".
36Our Court of Appeal has also stressed upon the importance of the application of the principle of restraint in its decision in R. v. Batisse (2009), 93 OR (3rd) 643 at paragraphs 32-35 where the Court said that the principle of restraint:
- is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
General deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005) of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/section-718.2.html) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances".
Analysis
37The aggravating features present in this case are as follows:
David Megna made the choice to drink and drive. He must have known when he drove to the Honest Lawyer restaurant that the consumption of alcohol was at least likely and consumption beyond the legal limit was possible and yet he made no arrangements for alternate transportation;
When he and Tyler Torres left the Honest Lawyer they had been drinking for four hours. The possibility of consumption beyond the legal limit was now a certainty. He was not in an isolated location. There was no need to move his vehicle. He could have called a cab. He could have contacted a sober driver. Public transportation was another option. Instead he made the decision to get behind the wheel of his vehicle and thereby put the other users of the roadway, including his own passenger, in danger;
He drove his vehicle at an excessive rate of speed on a busy road in a residential neighbourhood on a holiday in the middle of the afternoon;
His blood alcohol concentration was three times the legal limit. This is a statutorily aggravating feature;
He killed his passenger Tyler Torres and he caused serious and permanent bodily harm to Mr. Dawson.
38There are important mitigating factors that I must consider. They include the following:
There was never a question of conducting a trial of the issues. David Megna, through his counsel, indicated his intention to enter pleas of guilty at the first available opportunity. The delay in the processing of the pleas was a function of the treatment of the injuries that he sustained in the crash. This is an indication of his remorse and his willingness to accept responsibility for his conduct;
He is a relatively young first offender. This will be his first jail sentence;
He has no record for driving infractions;
There are no indications of prior substance or alcohol abuse;
He is a person of previous good character;
He has very strong support from family members, loved ones and friends who are aware of his situation. This circumstance increases the likelihood of successful reintegration with society following his release from penitentiary.
39David Megna sustained serious and substantial injuries as a result of the crash that he caused. These include a tear of the aorta, a lung laceration, a rotator cuff injury and a severe acquired brain injury.
40The fact that he sustained these injuries is not a mitigating feature inasmuch as he was very much the author of his own misfortune.
41Nevertheless the existence of these injuries, the problems that they create in terms of the availability of treatment in the penitentiary, and the complications that will likely ensue in terms of adjustment to other inmates and the prison environment generally, represent a set of circumstances that will render his incarceration more difficult than the time served by other offenders. This represents a collateral consequence that cannot justify an otherwise unfit sentence but may influence the sentencing calculus within the appropriate range.
42As noted earlier the infinite variety of circumstances under which the offences before this court can be committed means that comparison to other cases involving the same offences should be approached with appropriate caution.
43In light of the recent trend toward more severe sentences for cases of impaired driving causing death, earlier cases that pre-date the upward trend demonstrated in decisions of our Court of Appeal will have diminished value as guidelines.
44In the Junkert case the offender drove recklessly and dangerously through a residential neighbourhood, lost control of his vehicle and struck and killed a pedestrian. The breath readings were high though not as high as in this case. The primary distinguishing feature is that Mr. Junkert did not enter a plea of guilty and insisted on a full trial of the allegations. He was sentenced to five years. The Court of Appeal declined to reduce that sentence.
45In a case called R v Kummer the offender drove at extreme speed. He ignored pleas by his passengers to slow down. He ignored a stop sign and collided violently with a pick-up truck lawfully within the intersection. Both vehicles caught fire. The driver of the pick-up was badly injured but able to get out of the vehicle but his young son and his son's friend remained trapped in the burning truck and died. A passenger in the offender's vehicle also died. Several passengers sustained serious bodily injury. The blood alcohol concentration was more than twice the legal limit. The offender had a prior conviction for careless driving. He pled guilty to a total of 10 charges. The distinguishing features are the presence of an HTA record and the number of fatalities and persons injured. A sentence of eight years was upheld by the Court of Appeal.
46In R v Lacasse the Supreme Court of Canada upheld the determination of a Quebec trial judge who sentenced a 20 year old offender to six and a half years for two counts of impaired driving causing death. He entered a curve on a country road at a speed of 130 km per hour. The marked speed of the curve was 75 km/hr. He lost control and entered a ditch. Both of his female passengers were killed instantly. He pled guilty but did so on the eve of trial. The distinguishing features are the number of fatalities, the presence of a driving record that included three prior speeding offences and the lateness of the plea.
47In R v Ramage our Court of Appeal confirmed a sentence of four years. The offender's blood alcohol concentration was two to three times the legal limit (229 to 292). He lost control of his vehicle on a busy four lane roadway and crossed four lanes of traffic where it struck two oncoming vehicles. His passenger was killed. The driver of one of the two vehicles struck sustained serious debilitating injuries. He insisted on a trial with a judge and jury. The jury convicted him of impaired causing death, dangerous driving causing death, impaired causing bodily harm, and dangerous driving causing bodily harm. The offender was a gifted athlete and retired hockey player who was otherwise of excellent character. The concluding paragraph suggests that the Court of Appeal might have been inclined toward a slightly lower sentence but declined to interfere on the basis of that no error was demonstrated in the decision below and in those circumstances the principle of deference dictated no interference. The Ramage decision is instructive because of the similarity of the driving conduct, the tragic consequences and the lack of prior record. The primary distinguishing feature is that Mr. Megna did not insist on a trial and indicated his intention to enter pleas at the first reasonable opportunity.
48David Megna is a relatively youthful first offender. He is of previous good character. He has expressed genuine remorse. He has accepted responsibility for his conduct. On the other side of the divide it must be noted that his conduct on September 4, 2015 was not a simple error or mistake, it was not simply social misbehavior, it was criminal conduct that left a terrible trail of death, injury, heartbreak and destruction. This is the stark dichotomy which both informs and renders difficult the sentencing determination in this case.
49The case law cited makes it clear that where impaired driving causes death a penitentiary term is required. Beyond that the cases illustrate that the quantum of incarceration will be dependent on an individualized assessment of the circumstance prevailing in each case.
50Our prisons are, for the most part, cold, harsh, sometimes brutal and often dehumanizing environments. It is a bleak prospect to be housed in one of these places for any length of time and it precisely for that reason that real incarceration serves as the most potent, profound and effective expression of general deterrence and denunciation.
51The time that David Megna spends in custody will be rendered more difficult by the physical, emotional and mental impairments that arise as a result of the injuries he sustained in the crash.
52Taking all of the aggravating and mitigating circumstances into account it is my judgement that a sentence that will serve the principles of denunciation and general deterrence while adhering in an appropriate and proportionate manner to the principle of restraint is a penitentiary term of 4 years.
53There is no magic in the number. It is a long time for David Megna to contemplate but a relatively short time compared to the lifetime of sorrow that the Torres family must endure and the lifetime of disability faced by David Dawson.
54If increasing the sentence by one or even 10 years would mitigate the suffering of the Torres and Dawson family I would do that in a heartbeat. Sadly, they know, as I do, that it cannot.
55When David Megna went drinking with his good friend Tyler Torres on September 4, 2015 he did not intend to kill Tyler but that is exactly what he did. The true sting for him is not the sentence imposed today but the burden of that knowledge which he will carry with him for the rest of his life.
Released: October 18, 2016
Signed: "Justice George S. Gage"
