Supplementary Reasons for Judgment
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Katelyn Noreen Mitchell
Counsel:
- N. Young, for the Crown
- M. Jacula, for the Defendant
Before: Felix J.
Table of Contents
I. Introduction II. Procedural History III. Position of the Crown IV. Position of the Defence V. The Offence: Impaired Causing Bodily Harm – General Considerations VI. The Offence: Impaired Causing Bodily Harm – Increased Sentences VII. The Offence: Impaired Causing Bodily Harm – Range of Sentence VIII. Impaired Cause Bodily Harm: Conclusions IX. Background of the Defendant X. Impact on the Victims XI. Other Relevant Sentencing Principles XII. Determining a Fit Sentence XIII. Mitigating Factors XIV. Factors Neither Mitigating nor Aggravating XV. Aggravating Factors XVI. Sentence: Conclusion
I. Introduction
1The defendant pled guilty to two counts of impaired driving causing bodily harm.
2A comprehensive detailed agreed statement of facts was filed as an exhibit in these proceedings so a short summary will suffice for these reasons.
3The defendant operated her motor vehicle at high rate of speed having consumed a significant amount of alcohol. She decided to execute a manoeuvre to "show off" for the benefit of two occupants in her vehicle. In executing a high speed manoeuvre to pass a vehicle the defendant lost control of her vehicle. Her vehicle slammed into a tree and struck a residential building. The force of the collision shattered some windows in the residence and dislodged the engine from within the engine compartment of the vehicle.
4The defendant and two passengers in her vehicle received serious injuries.
II. Procedural History
5The first plea was entered June 21, 2016 to one count of Impaired Cause Bodily Harm. A driving prohibition was ordered that day in relation to this count. A pre-sentence report was ordered returnable August 18, 2016.
6On August 18, 2016 the Court granted a requested adjournment for additional disclosure and preparation for sentence. The case was adjourned to September 29, 2016 for additional facts and sentencing.
7On September 29, 2016 the matter was not sufficiently prepared and organized to proceed. There was outstanding disclosure that the defence needed to review. The Court adjourned the case with the understanding that more organization would be applied to this serious matter and that sentencing could occur on the return date.
8The matter proceeded on November 3, 2016 with a guilty plea to the second count of Impaired Cause Bodily Harm. The parties were prepared. A detailed agreed statement of facts was provided. The parties were now ad idem with respect to the injuries to the complainants and all additional disclosure concerns had been addressed.
9On November 22, 2016, I sentenced the defendant to 16 months incarceration.[1] These written reasons supplement my oral reasons provided in Court on November 22, 2016.
III. Position of the Crown
10The Crown Attorney sought concurrent sentences of 18 months incarceration, a driving prohibition, and a probationary period to address rehabilitation and contact with the complainants.
IV. Position of the Defence
11Defence counsel submitted that incarceration for between two and six months would achieve the aims of sentence given all of the circumstances.
V. The Offence: Impaired Causing Bodily Harm – General Considerations
12Every single day, in every single courtroom, in every single city, in every single province across Canada, Judges caution offenders concerning the terrible consequences of impaired driving.
13Over two decades ago the Supreme Court of Canada outlined the impact of driving and drinking in R v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No 87:
Problems Arising from Drinking and Driving
22 Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted ("Impaired Driving — Canada, 1991" (1992), 12:17 Juristat 1, at p. 2.):
Impaired driving is a serious crime. Every year thousands of Canadians are killed and many more injured in traffic-related accidents. Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation - D.R. Mayhew et al. [Alcohol Use Among Persons Fatally Injured in Motor Vehicle Accidents: Canada 1990] 1992:33).
23 Statistics Canada has compiled a variety of figures with respect to motor vehicle accidents in general. Between 1983 and 1991, 41,000 individuals died in traffic accidents in Canada. A further 2.5 million people were injured: "Impaired Driving — Canada, 1992" (1994), 14:5 Juristat 1. In 1992, the total number of deaths resulting from motor vehicle accidents was 3,289: Causes of Death 1992 (1994), at pp. 246-50. This figure includes drivers, passengers, cyclists, and pedestrians. In 1987, motor vehicle accidents were responsible for injuries requiring 762,000 days of in-hospital medical treatment and causing 12 million days of lost activity and employment: Accidents in Canada (1991), at pp. 61-64.
24 Statistics Canada observed that alcohol is a contributing factor in 43% of those motor vehicle accidents which cause death and injury. Interpreting Statistics Canada's general motor vehicle accident statistics with reference to this 43% figure, it would seem that alcohol was a contributing factor in:
25 — some 17,630 individual deaths between 1983 and 1991;
26 — approximately 1,075,000 individuals injured between 1983 and 1991;
27 — about 1,414 additional deaths (including drivers, passengers, cyclists and pedestrians) in 1992;
28 — 327,660 days of in-hospital medical treatment in 1987; and
29 — 5,160,000 days of lost activity and employment in 1987.
30 These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem. [paras. 22 – 30]
14In R v. Ramage, 2010 ONCA 488 (CanLII), [2010] O.J. No 2970 (Ont.C.A.) the Ontario Court of Appeal harkened back to views expressed in 1985:
74 In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, "every drinking driver is a potential killer". Unfortunately, that potential was realized in this case.
75 McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases, however, McVeigh indicates that general deterrence is of primary importance. The result in McVeigh demonstrates the court's commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs. McVeigh, a 31-year old first offender, had his sentence increased from 21 months to three years. [para. 75-76]
15The primary considerations in sentencing those who drive while impaired and inflict bodily harm on others is denunciation and deterrence. The Supreme Court of Canada recently re-affirmed this principle in R c. Lacasse 2015 SCC 64:
5 In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society's condemnation: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), at para. 129 ; R. c. Lépine, 2007 QCCA 70 (C.A. Que.), at para. 21 ; R. c. Brutus, 2009 QCCA 1382 (C.A. Que.), at para. 18 ; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185 (Alta. C.A.), at para. 21 ; R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16 (Alta. Q.B.), at para. 69 ; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284 (Ont. C.A.), at paras. 46-47 ; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220 (Man. C.A.), at para. 36 . [para. 5]
16General deterrence objectives generally require consideration of custodial sentences: See R v. McPhee, (1990) 21 M.V.R. (2d) 318 (Ont. C.A.) ; R v. Biancofiore, 1997 CanLII 3420 (ON CA), [1997] O.J. No 3865 (Ont. C.A.) at para 21.
VI. The Offence: Impaired Causing Bodily Harm – Increased Sentences
17In my respectful view, sentences for impaired causing bodily harm should be increased based on the express will of Parliament demonstrated in amendments to Criminal Code of Canada and guidance from appellate jurisprudence.
18The Ontario Court of Appeal decision in R v. McVeigh, 1985 CanLII 115 (ON CA), [1985] O.J. No 207 (Ont. C.A.) has been cited several hundred times in Court decisions from every province in Canada. It is important to commence sentencing considerations from this bedrock of drinking and driving law:
12 In my view the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.
13 Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.
14 Laycraft, J.A., of the Alberta Court of Appeal in R. v. Jacobs (1982), 1982 ABCA 204 (CanLII), 39 A.R. 391 ; 70 C.C.C.(2d) 569, at p. 574 , put the issue clearly:
The culpability in each case where a death occurred from drinking and driving is not only the driving error or failure which leads immediately to death. The additional blame-worthy act meriting punishment is the earlier act of taking control of a motor vehicle while under the influence of alcohol. The drunken driver disables himself from meeting emergencies or from instantly recovering, without resulting harm, from the small errors which all drivers frequently commit.
If it is a culpable act to take control of a motor vehicle while impaired, all drivers guilty of that act merit punishment and not merely those involved in tragedy. Each is potentially a killer. It is often mere chance or mischance which determines which one causes death and which one gets home safely. Should not the attack be on all the impaired drivers of Canada, in their tens of thousands, in addition to condemnation of the smaller number who cause death or injury?
15 I have sought to make clear that, in my view, the "attack" should, indeed, be on all impaired drivers. [paras. 12-15]
19In R v. Larocque, [1988] O.J. No 2317 (Ont.C.A.) the Ontario Court of Appeal approved of a trend toward increased sentences:
8 We are satisfied, as was the trial Judge, that the change in the legislation reflected the determination of parliament to render the punishment for impaired driving more severe where the consequences are more severe. We are also aware, as was the trial Judge, that the trend in judicial sentencing for alcohol-related driving offences is towards heavier penalties in order to express the concern at the carnage on the highways and generally to deter the citizen from driving after drinking. The principles are fully set forth in the decision of this Court in R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145, 11 O.A.C. 345 (Ont. C.A.).[para. 8]
20In Biancofiore, Rosenburg J.A. explained the rationale for increasing sentences in drinking and driving offences:
19 The theory that general deterrence is the paramount objective in sentencing for offences of drinking and driving, especially where serious consequences result, can be traced back in this province at least to this court's decision in R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.). That judgment was delivered amidst an almost unprecedented public campaign that had started in the 1970's and had raised public awareness about the carnage caused by drinking and driving, see Solomon and Usprich, "Drinking/Driving Legislation and the Charter: An Overview" (1989), 1 J.M.V.L. 225 at 226-27. MacKinnon A.C.J.O. explained that light sentences had done nothing to solve the problem. He reasoned that harsher sentences for drinking and driving offences could be expected to have a general deterrent effect because the persons likely to commit those offences were generally otherwise law-abiding. They have good work and family records with much to lose from imprisonment. They were the very type of person whose behaviour could be influenced by the threat of more severe penalties.
20 It seems reasonable to assume that Parliament also adopted this theory. On December 4, 1985, the provisions of the Criminal Law Amendment Act, R.S.C. 1985, c. 27 (1st Supp.) were proclaimed in force. Provisions in that Act created the offence with which this respondent was charged, as well as the offences of dangerous driving causing death and impaired driving causing death and causing bodily harm with the increased penalties . . . .
22 There is nothing to indicate that the need for harsh measures in the interests of general deterrence has abated. Only two years ago, Cory J. again drew attention to the problem of drinking and driving in R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 at 204 (S.C.C.) :
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country . [Emphasis added.]
[paras. 19-22]
21In R v. Junkert, 2010 ONCA 549 (CanLII), [2010] O.J. No 3387 the Ontario Court of Appeal noted an increase in sentences for drinking and driving:
46 . . . 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.
47 The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired.
48 While the length of sentences in cases of impaired driving causing death varies considerably, courts have imposed sentences approaching or similar to the five-year sentence under appeal in this case. In the recent case of Ramage, this court upheld a sentence of four years for impaired driving causing death. In R. v. Niganobe, 2010 ONCA 508 (Ont. C.A.), this court upheld a sentence of five years for impaired driving causing death. In Hall, this court upheld a sentence of four years and 10 months for the same offence. In Hall and Niganobe, the offenders had previous related records. In Ramage, the offender did not.
49 I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time. That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court. While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years. [paras. 46-49]
22In R v. Carreira, [2015] O.J. No 4867 the Ontario Court of Appeal again recognized an upward trend for drinking and driving offences causing death:
26 In the light of the above-noted error, the sentence determined by the sentencing judge is not entitled to the deference it would normally attract. That said, I am of the view that the sentence imposed is nevertheless fit. It reflects the gravity of the risk the appellant took and the tragic consequences that flowed from his taking that risk. It also reflects the upward trend for sentences involving drunk driving causing death, a trend that corresponds to society's heightened recognition of the need for sentences in these cases that focus on general deterrence and protection of the public. [para. 26]
23In Lacasse the Supreme Court of Canada emphasized that Parliament wants Judges to impose harsher punishment in drinking and driving cases:
6 While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.
7 The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5. [paras. 6-7]
24In the recent case R v. Muzzo 2016 ONSC 2068, Fuerst J., a senior jurist in this jurisdiction, once again acknowledged the increase in sentences:
69 The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. 14 For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines. [para. 69]
25Analysis of relevant case law shows a trend towards increased sentences in drinking and driving cases where death has occurred. There is no reason why this approach should be limited to cases where a death has occurred. The same principles and considerations apply when bodily harm is caused by drinking and driving.
26There is no doubt that the consequence caused by the offender is an important and relevant consideration when determining the length of a sentence. I do not mean to suggest that every impaired driving offence where bodily harm was caused is deserving of a penitentiary sentence. But it is important for the Court to keep in mind that it is the conduct of the defendant that must be the focus.
27Criminal court Judges in the Ontario Court of Justice have great exposure to the spectrum of driving offences associated with voluntary consumption of alcohol or drugs. There is a vast spectrum of conduct and consequences. A simple RIDE stop with no poor driving and no property damage is on lower end. There are often cases with minor property damage or damage to the defendant's vehicle. Sometimes the defendant has collided with another vehicle. Finally, tragically, at times there is a much more serious consequence. These more serious consequences, whether it is death, serious bodily harm, or minimal bodily harm (e.g. bruises) is one of degree. These defendants are not surgeons executing a precise manoeuvre with a vehicle. Frequently, the consequences of drinking and driving offences are driven by luck, timing, and chance.
28In reviewing the cases in this area an excellent explanation of this rationale is found in R v. Bouchard, [2001] O.J. No 5971 (Ont Sup. Ct.), aff'd [2002] O.J. No 5357 (Ont. C.A.) where Kurisko J. explained this important point:
27 In L. (J.) the Court of Appeal said that in drinking and driving offences where death is a consequence of the consumption of alcohol, the range of sentence is between three and seven years. Where the consequence of impaired driving has been bodily harm, the sentences are well below the penitentiary range regardless of how serious or life threatening the injuries. This disparity goes against the principal stated by MacKinnon A.C.J.O. in McVeigh that "it is the conduct of the accused, not just the consequences, that is the criminality punished" (my emphasis).
28 Determining the initial range of sentence solely on the basis of whether the victim was killed or injured as a result of the criminal conduct of the accused has no basis in logic or principle because the consequence of death or injury often turns on pure chance, as in this case. It is apparent from the photograph of the Lapides vehicle and the description of the speed at which the collision occurred that the survival of Albert Lapides in the collision was nothing less than miraculous. The pure chance fact that he was not killed does not minimize the blameworthiness of the defendant's actions and should not be the reason for concluding that the sentence falls within a reformatory term and not the penitentiary. This is a decision that must be based on all the sentencing principles noted above beginning with a consideration of the aggravating and mitigating circumstances. [paras 27-28]
29These considerations outlined by Kurisko J. succinctly capture the difficult analysis in my view.
VII. The Offence: Impaired Causing Bodily Harm – Range of Sentence
30Denunciation and general deterrence requires the imposition of a custodial sentence jail sentence in this case.
31Increased sentences are required in this area of sentencing.
32What range of sentence is appropriate?
33Section 718.2 (b) of the Criminal Code requires the Court to impose a sentence that is "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".
34In R v. Thompson 2011 ONSC 624 Quigley J. held that the range of sentence for Impaired Cause Bodily Harm was between one and two and one-half years: R v. Thompson 2011 ONSC 624 at para 52 .
35In Lacasse the Supreme Court of Canada recently explained that there are no applicable sentence ranges for impaired cause death. In my view the statement of the Court is also applicable to impaired cause bodily harm:
64 The sentences imposed for such crimes in Quebec have also changed. For example, before 2009, the terms of imprisonment imposed for impaired driving causing death varied from one to 10 years: R. c. Verreault, 2008 QCCA 2284 (C.A. Que.), at para. 25 ; R. c. Morneau, 2009 QCCA 1496 (C.A. Que.), at para. 21 . Since Comeau, however, the Quebec courts have used a new sentencing range divided into three categories. As I mentioned above, the Court of Appeal held in Paré that it was appropriate for the courts to use that range.
65 The appellant correctly observes that Quebec is the only province in which the courts have subdivided the sentencing range into categories for the crime of impaired driving causing death. Other provinces have also adopted the range system, but without subdividing the ranges into categories. In those provinces, sentences vary from eighteen months to two years in the least serious situations and from seven to eight years in the most serious: R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12 (Sask. C.A.) , at para. 59 ; R. v. Berner, 2013 BCCA 188, 297 C.C.C. (3d) 69 (B.C. C.A.) , at para. 37 ; R. v. Smith, 2013 BCCA 173, 296 C.C.C. (3d) 386 (B.C. C.A.) , at para. 60 ; Stimson , at para. 18 ; Ruizfuentes , at para. 22 .
66 The Ontario Court of Appeal has refused to define a sentencing range for the crime of impaired driving causing death, noting that the crime can be committed in an infinite variety of circumstances: Junkert , at para. 40 ; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 649 (Ont. C.A.) . This is why there is so much variation in the ranges and why penitentiary sentences much longer than six and a half years have been reported almost everywhere in Canada. [paras 64-66]
36The Ontario Court of Appeal has not provided guidance as to an appropriate range of sentence for impaired driving cause bodily harm cases. Our Court of Appeal has recognized that sentencing in drinking and driving are typically driven by the infinite variety of circumstances involved in the commission of the offence: Junkert, at para. 40 ; R v. L.(J). 2000 CanLII 15854 (ON CA), [2000], 147 C.C.C. (3d) 299 (Ont. C.A.)
37Not surprisingly, there are no cases I have found with similar offenders and similar circumstances: see section 718.2 (b) Criminal Code .
38Another consideration is the guidance received from cases within the jurisdiction.
39I have already cited Muzzo as a prominent recent case from this jurisdiction.
40I found the case of R v. Smith 2015 ONCJ 11 to be particularly focused on the medical condition of the defendant – a brain injury. Given that a conditional sentence was not available the Court faced a stark choice between incarceration and non-custodial disposition. As such, this case is highly distinguishable.
41I have also considered a decision of Wakefield J. – R v. Selvakumar, [2016] ONCJ 462 where the Court rejected a joint-submission and imposed a 3.5 year penitentiary sentence primarily because of a need to increase sentences given the continuing problem of drinking and driving in the community.
42In R v. Hook, an unreported 2014 decision of De Freitas J. the sentence was driven by the particular fragility of the defendant and extensive mitigating factors.
VIII. Impaired Cause Bodily Harm: Conclusions
43In my respectful view there are several conclusions that inform my consideration of the appropriate sentence in this case.
44As a Judge presiding in criminal court every sitting day I am keenly aware of the prevalence of drinking and driving in Durham even without resort to evidence or statistics (e.g. Impaired Driving in Canada, 2011 by Samuel Perreault, Statistics Canada, released on January 10, 2013): Lacasse, paras 95 – 96 .
45There is no definitive range of sentence for impaired cause bodily harm. The sentence should be informed by the particular circumstances of the offence, the circumstances of the offender, and the application of the relevant sentencing principles.
46General deterrence and denunciation are the primary sentencing considerations.
47General deterrence and denunciation considerations require the Court to focus on findings concerning the particular criminally blameworthy conduct of the defendant.
48General deterrence and denunciation considerations are typically expressed in the form of a sentence of actual incarceration particularly where Parliament amended the Criminal Code such that conditional sentences are no longer available for this crime.
49Drinking and driving offences are often committed by offenders with excellent antecedents. Such offenders are more likely to be successfully deterred by sentences focussed on general deterrence even if specific deterrence is of diminished focus: Lacasse, at paras 73-74 .
50Sentences for drinking and driving where death or bodily harm occurred are increasing and should increase.
51Sentences imposed in drinking and driving cases prior to Ramage, Junkert , and Lacasse are of less assistance when determining the length of the sentence that should be imposed.
52Every single day Courts admonish members of the community to refrain from drinking and driving. Yet the problem persists.
IX. Background of the Defendant
53The defendant is a highly sympathetic person.
54She is 31 years old.
55She has no criminal record.
56She is a mother of three young children.
57The information in the Pre-Sentence Report makes it clear that she has had some significant challenges in her life. Her upbringing and family circumstances had an incalculable impact on her development as a child. The impact of the conduct ascribed to certain family members has damaged the defendant in ways that perhaps cannot be expressed on paper.
58The defendant has three young children. She does not have full-time custody. Her oldest daughter has several challenges to her development. Her two other children currently reside with their birth-father.
59The defendant was let go from her employer when these charges were laid. She worked in a restaurant. She currently has no employment and relies on social assistance.
60The defendant has not abused alcohol in the past. As a result of these charges she participated in specialized programming for alcohol abuse – programming her mother asked her to complete prior to the offences. She has not continued with one-on-one counselling and has missed one appointment.
61The defendant has struggled with substance abuse and comingling alcohol and drugs.
62The defendant has periodically consulted with mental health professions.
63The PSR amply demonstrates the remorse felt by the defendant. If I had any doubt, her written letter is a clear recognition of her remorse.
64Defence counsel compassionately noted that it is a testament to the defendant's character that despite a number of challenges she has been able to cope and remain completely free from the criminal justice system.
65I find that the defendant is a highly sympathetic person. A person who is in the beginning stages of rehabilitation with reasonable prospects. A person with good antecedents.
X. Impact on the Victims
66The impact of the defendant's conduct caused a severe impact on the two victims in this case.
67The following chart is reproduced from the agreed statement of facts and documents the injuries and treatment concerning 15 year-old D.L.:
| Injury | Treatment |
|---|---|
| Pelvis | |
| Vertical shear injury at the right sacroiliac joint (bone joint where base of spine connects with pelvis) with dislocation. | Open reduction internal fixation of pelvic ring fracture. Open reduction internal fixation with disimpaction of sacrum at right sacroiliac joint Local bone graft. Exploration and protection of the L5 nerve root/sciatic (spinal) nerve as well as decompression of the lateral cutaneous nerve. Application of external fixation device for anterior pelvic ring. Detailed treatment from hospital reports. Patient was hemodynamically unstable (blood pressure) after arrive and a pelvic binder (physical restraining mechanism) was put in place initially and then subsequently put into traction by drilling to place a pin in the thigh and the pelvic binder was reapplied (Feb. 18, 2016 report/P. Henry – p9) 5mm pin was inserted in patient to clamp ilia crest (outer edge of pelvic bone). Second pin placed to stabilize sacroiliac joint dislocation/fracture. (Feb. 12, 2016/Operative Report, p. 15). Removal of fragments and smoothing of sharp edges of sacrum (p. 16). Insertion of 2 screws and reconstruction plate to secure sacroiliac dislocation (p. 17). Insertion of pin with soft tissue sleeve to protect soft tissues in nerves of thigh (p. 17) |
| Internal rotation of right hemipelvis (where pelvis joins with right hip joint) | |
| Fracture of the right sacral ala (bone near the base of the spine connecting to the pelvis/sacrum) at the sacroiliac joint. | |
| Hematoma (abnormal collection of blood due to blood vessel damage) in the right illiacus (pelvic) musculature and right flank. | |
| Bilateral displaced superior and inferior pubic rami fractures (base of pelvis) | |
| Hematoma with intra-abdominal wall and space. | |
| Head and spine | |
| Occiput, posterior arch of C1 (bone connecting spine to bottom of skull) and spinous process of C2 suggests soft tissue injury. | |
| 4mm (bone) fragment arising from T2 vertebrae with minimal anterior displacement and slight superior endplate. Similar changes present at T3 vertebrae with a horizontally-oriented sclerotic line suggestive of impact. | |
| Microfractures/superior endplate (connective bones in spine) compression fractures at C6-T3. | |
| Small amount of edema signal (internal swelling) within the interspinous space of C3-C4, C4-C5 and C5-C6. | |
| Small amount of paraspinal (running parallel to the spine) muscular edema at C2-C3. | |
| Distended bladder with no ruptures. |
68The second victim, B.G., was admitted to St. Michaels Hospital on February 10, 2016 and released on February 19, 2016. She received the following injuries:
- Large laceration in the front lobe of the liver with small contrast extravasation.
- Small splenic (spleen) laceration.
- Large amount of hemoperitoneum (accumulation of blood in the space between the inner lining of abdominal wall and internal abdominal organs) in the upper abdomen.
- Small tiny right pneumothorax (presence of gas in cavity between lungs and chest wall causing collapse of lung).
69The defendant received serious injuries as well including:
- A fractured pelvis,
- A dislocated hip,
- A fractured rotator cuff with internal muscle and tissue damage and
- a hole in her kidney.
70The prognosis and future care required by both victims is largely speculative and undetermined on the record placed before me. However, I may safely infer that the victims will require ongoing medical assistance in the future.
XI. Other Relevant Sentencing Principles
71Section 718 of the Criminal Code sets out the purpose and principles of sentencing:
718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.
72It is important that sentence be proportionate:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
73There are other sentencing principles I must consider as set out in section 718.2 of the CC:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
XII. Determining a Fit Sentence
74The goal of sentence is a proportionate sentence. One that properly captures the specific criminal blameworthiness of the defendant balanced with other important considerations including the principle of restraint. On the facts and circumstances in this case a prison sentence is required to achieve the primary aims of sentence.
75While my focus is on denunciation and deterrence I must remember that the defendant is a middle-aged adult first offender. A mother with young children. I find that she does exhibit rehabilitative potential and good antecedents overall.
XIII. Mitigating Factors
76I have detailed several mitigating features of the defendant's background and circumstances earlier in this judgment.
77She entered a guilty plea in this case before full disclosure was provided.
78She is entitled to a finding that she is remorseful because of her pleas of guilt. But I am satisfied that she is truly remorseful for her actions and the impact on the victims in this case. She took the time to write a letter to the Court outlining these considerations and other considerations.
XIV. Factors Neither Mitigating nor Aggravating
79The defendant has mental health issues that are not directly linked to the commission of the offence in this case.
XV. Aggravating Factors
80The defendant voluntarily consumed a large quantity of alcohol and then drove her motor vehicle.
81Expert evidence concerning her state of sobriety at the time of driving show blood alcohol levels of 102 to 117 mg/100mL (blood) and 60 to 130 mg/10mL (breath).
82The collision was caused by the defendant's intoxication in combination with her decision to "show off" by executing a needless manoeuvre with her vehicle.
83It is clear that the defendant drove home from a licenced establishment. The driving could have ended there. Instead she engaged her vehicle a second time. The singular purpose for driving her vehicle was to obtain cigarettes.
84The defendant was responsible for the 15 year-old victim D.L. being in her car. This 15 year old was the daughter of the defendant's friend. The Crown has urged the Court to find that this was a breach of trust given the context of the relationship between the defendant and the 15 year old. Whether or not this consideration is crystalized into a specific breach of trust as submitted by the Crown it is an aggravating factor in my view. The defendant placed this child in harms way for the purpose of facilitating the purchase of cigarettes. Obviously this trip could have been easily avoided.
85The injuries to both victims are significant and the defendant deserves to be punished for causing such harm. The degree of harm was not, and could not, be measured by the defendant. Given the extreme nature of the collision it is miraculous that more lasting injuries were not caused.
XVI. Sentence: Conclusion
86As outlined in this judgement the Court has an enormous level of sympathy for the challenges placed upon the defendant in her life. She has begun to address rehabilitation already and should be encouraged to continue these efforts.
87Drinking and driving sentencing case law is replete with offenders who have sympathetic or exemplary backgrounds.
88Notwithstanding the mitigating factors and the background and circumstances of the defendant, a significant sentence of incarceration is required.
89It is for the foregoing reasons that I sentenced the defendant to a concurrent sentence of 16 months incarceration minus pre-sentence custody, prohibited her from driving for 2 years, and placed her on probation for her rehabilitation.
Released: November 24, 2016
Signed: "Justice M.S. Felix"
Footnote
1On that day, with express agreement of counsel, I provided a short summary of my reasons for sentence. I had intended to provide an oral judgment that day. The purpose of this approach was to accommodate both the sentencing of the defendant and an ongoing homicide preliminary inquiry. Further, I thought it important to move to sentence the defendant given the procedural history. I explained this approach to the defendant. I told the parties that while my notes for the oral judgment were not fit to be provided to the parties, I would provide a written decision within the appeal period. All parties agreed with this approach.
