ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ETHAN ROBERT NOBLE
Before Justice G. F. Hearn
Heard on October 31 and December 10, 2018
Reasons for Sentence released on January 24, 2019
Murray DeVos counsel for the Crown
Ranney Hintsa counsel for the accused Ethan Robert Noble
BACKGROUND:
1On October 31, 2018 Ethan Noble entered pleas of guilty to a variety of counts arising out of incidents on June 14, 2018 and July 11, 2018. The June 14, 2018 incident involves a count of operating a motor vehicle while his ability to do so was impaired by a drug. The matter relating to July 11, 2018 involves charges of operating a motor vehicle while his ability to do so was impaired by a drug causing the death of Darren James More and two counts of causing bodily harm to Kevin Harper and Jessica Triggerson, also while his ability to operate a motor vehicle was impaired by a drug. Pleas were also entered to possession of stolen property, namely the pickup truck that Mr. Noble was driving on that date, as well as a count of assault. The victim of that assault was Jessica Triggerson who was a passenger in Mr. Noble’s vehicle at the time of the event.
2An Agreed Statement of Facts has been filed with respect to both sets of charges and following the pleas and the facts being read in the matter was adjourned to December 10, 2018 in order that a pre-sentence report could be prepared. That report has been received and defence counsel has also filed a series of letters in support of the accused. As well, there are numerous victim impact statements which have not only been filed but the court has had an opportunity to hear all but one of those victim impact statements read by the victims or on their behalf.
3Submissions as to sentence were completed on December 10, 2018 and the matter was then adjourned to today’s date for sentence.
CIRCUMSTANCES OF THE OFFENCES:
(a) The Event of June 14, 2018:
4On June 14, 2018 members of the Ontario Provincial Police were on patrol shortly after midnight in the Town of Minto when they observed a vehicle travelling with its headlights off at a high rate of speed and swerving from side to side. The vehicle was being operated by Mr. Noble and his vehicle passed the officers who then proceeded to follow it in order to conduct a traffic stop. As the officers followed they observed the vehicle’s headlights illuminate and a right turn signal activate as the vehicle approached an ‘S’ curve in the road. The officers followed the vehicle and when they entered the curve they observed the vehicle in a ditch with its motor running and lights on. Mr. Noble was not only the operator of the vehicle but the sole occupant.
5The accused exited his vehicle and walked towards the officers showing obvious signs of impairment as he did so. His speech was slow and slurred, his complexion pale, his eyes glossy and he had a white pasty film on his bottom lip.
6Ultimately, Mr. Noble admitted to having consumed not only alcohol but also LSD and methamphetamine. He was arrested, transported to the detachment for further testing and, after a breath test resulted in readings indicating no alcohol in Mr. Noble’s blood, he was taken to the hospital complaining of illness. At that point the officers were of the view that Mr. Noble’s ability to operate the vehicle was actually impaired by a drug. While at the hospital, as no drug recognition expert was available to evaluate Mr. Noble, blood was drawn for medical reasons and a warrant was subsequently obtained seizing one of the vials of Mr. Noble’s blood. The analysis of that blood sample showed both methamphetamine and amphetamine present in Mr. Noble’s blood together with a drug prescribed for treatment of depression and smoking cessation.
7Mr. Noble was charged with the offence of impaired operation by drug and by his plea acknowledges the facts as read in. At the time Mr. Noble was operating the vehicle he had no insurance on it and the plates that were on the vehicle were not authorized for that particular vehicle.
(b) The Events of July 11, 2018:
8By far the more serious charges that Mr. Noble has pled to relate to the tragic event which occurred on July 11, 2018. On that date Mr. Noble, Jessica Triggerson and Kevin Harper were occupants of a motor vehicle which had been stolen sometime between midnight and 5:00 a.m. on July 10, 2018. Mr. Noble was operating the vehicle on Sideroad 15 in the Township of Mapleton while Ms. Triggerson was seated in the middle front seat with Mr. Harper on the passenger side of the front seat. At the time all of the occupants of the vehicle were high on methamphetamine.
9The posted speed limit on Sideroad 15 is 80 kilometres per hour. Mr. Noble was operating his vehicle well in excess of that limit.
10Sideroad 15 runs north and south while Concession Road 16 runs east and west. The traffic control where those two roads intersect is a stop sign for traffic travelling on Sideroad 15.
11Mr. Noble was operating the vehicle at approximately 7:55 a.m. on that date. Tragically, at the same time a motor vehicle being operated by Darren James More was travelling eastbound on Concession Road 16. As Mr. Noble approached the intersection of the two roads, both Mr. Harper and Ms. Triggerson saw Mr. More’s vehicle approaching and begged Mr. Noble to slow down. Mr. Noble’s reaction was to strike Ms. Triggerson, who was seated beside him, in the face with his right elbow and yell at her to “shut up”. Inexplicably, Mr. Noble then accelerated and entered the intersection without stopping at the stop sign controlling the intersection. The speed that he entered the intersection was estimated to be 120 kilometres per hour.
12As Mr. Noble crossed Concession Road 16, the vehicle he was operating T-boned the vehicle operated by Mr. More. Both vehicles came to rest in a nearby field with Mr. More’s vehicle resting on the passenger side, trapping Mr. More inside. The stolen vehicle operated by Mr. Noble caught fire and although Mr. Noble and Mr. Harper managed to exit the vehicle on their own, Ms. Triggerson remained trapped inside.
13After the collision other drivers stopped and the accused entered a passerby’s truck without permission and proceeded to ram the vehicle containing Ms. Triggerson in an effort to free her. He then also got on another passerby’s tractor with similar intentions but was ordered to stop by the police who by that time had arrived at the scene. Eventually Ms. Triggerson was able to be extricated from the vehicle but not before suffering significant burns to her body.
14Mr. More was also eventually extricated from his vehicle by police and emergency personnel. He was transported to hospital where he was pronounced deceased.
15Mr. Noble was arrested at the scene at approximately 8:30 a.m. for the various charges before the court. He was provided with his rights to counsel, caution, as well as a demand. He was taken to hospital for his injuries which were minor in nature and while at the hospital a drug recognition expert examined Mr. Noble and concluded at the time of the accident Mr. Noble’s ability to operate a vehicle was impaired by a central nervous system stimulant. Bodily fluids were collected from Mr. Noble incidental to the evaluation that was completed and the presence of methamphetamine was discovered in those fluids.
16Sadly, as noted, Mr. More died as a result of the collision caused by Mr. Noble while the accused’s ability to operate a vehicle was impaired by a drug.
17Mr. Harper suffered a broken arm and herniated ribs but has apparently recovered from those injuries. Ms. Triggerson suffered a broken nose which was believed to have been caused by Mr. Noble striking her in the face immediately before the collision. She also suffered third degree burns on her left arm, chin, lower back and legs, as well as a lacerated kidney, lacerated spleen, dislocated hip, fractured leg and lacerations to her legs and left arm. Also unknown to Ms. Triggerson, was the fact that she was in the early stages of pregnancy at the time of the accident, however as a result of the impact and the injuries she sustained, the fetus did not survive.
18As noted, Mr. Noble’s injuries were minor in nature. Not only did the accident result in the tragic death of Mr. More and the serious personal injuries, particularly to Ms. Triggerson, both vehicles, including the stolen vehicle, were extensively damaged.
VICTIM IMPACT STATEMENTS:
19A number of victim impact statements have been filed and read into the record on behalf of family, friends and associates of Mr. More. Neither Ms. Triggerson nor Mr. Harper have chosen to provide victim impact statements.
20With respect to the victim impact statements concerning Mr. More, they total 19 and have been collectively filed as an exhibit in this proceeding. All but one of those statements have been read to the court by the authors or their designates. They include statements from family members, his immediate family being his wife and three children, friends and colleagues.
21The statements, without exception, are eloquent and compelling and, as noted by the Crown, heart-wrenching. It would be a disservice and an injustice to all of the victims to attempt to provide a summary of their statements. As the statements were read to the court, the sincerity, regret and sadness of each victim and how the loss of Mr. More in their lives has affected them, was clearly evident.
22The statements speak of the fine attributes of Mr. More who by all accounts was a loving father and husband. He was a man who possessed qualities many strive for and never achieve. He was a man dedicated to his family, both immediate and extended, his friends and the community in which he lived. He was a tireless advocate and fundraiser for a rare illness which victimizes one of his own children. He was a coach, a mentor, a hardworking, well-respected employee and a best friend to many.
23As the various statements were being read, one could not help but notice that many in a crowded courtroom were touched and impacted by the sincerity and content of the statements. It is worth noting that this included the accused who sat quietly with obvious signs of emotion in the prisoner’s box while he listened to the profound impact his senseless actions of July 11, 2018 have had on many.
24Mr. More’s oldest daughter Daphnie, who is just 16, spoke with great difficulty but bravely as to how she misses her father and how “that’s what hurts me every day”. Pam More, who was married to Mr. More for almost 20 years and knew him since she was 16 years of age, spoke of how the lives of herself and her children have been shattered by the loss of her husband. She stated:
“People call me strong. I am not strong. People ask me how I’m doing. I say fine. I am not fine. I’m hurting. I am hollow. I am broken. The real truth is I am now a fake and a lie.”
And further:
“The events of this summer really are unfathomable. How is it that a happy family should be rocked to the core by the senseless actions of another? You took away my happily ever after. You took away my everything. As a wife and mother I’ll never get over this, I will never forgive you. Technically you ended one life that day but I see it as much more than that and every day I put this ring around my neck and every moment of every day as I struggle to put one foot in front of another I feel just how much you took. Not only did you selfishly take Darren’s right to live a long and happy life but at the moment you took Darren’s life, you destroyed my life and you shattered the lives of our three beautiful children.”
CIRCUMSTANCES OF THE OFFENDER:
25Ethan Noble is currently 22 years of age. His birth date is September 21, 1996 and at the time of the incident he was just 21 years of age. Notwithstanding his young age, he has acquired a criminal record, both as a youth and more recently in August of 2015 as an adult when he was convicted of assault, mischief and failing to comply with probation. On those matters he received a suspended sentence and a period of probation for 12 months after being credited with 61 days pre-trial custody. There is no driving record that the court is aware of.
26The pre-sentence report which was ordered is said to be factually accurate and it forms part of the record. The report is thorough and sets out the background of Mr. Noble. His parents separated when he was ten years of age and while his relationship with his mother is good, his relationship with his father is not, due largely to the father’s violence when the father was consuming alcohol. The physical, emotional and other forms of abuse administered by the father are set out in the report.
27Mr. Noble was diagnosed at an early age with ADHD and struggled as a result in school. In high school there were behavioural and attendance issues, but with considerable effort and perseverance to his credit, he was able to complete his high school credits in June 2016. Mr. Noble has had ongoing and continuous issues with both alcohol and drugs. He was introduced to alcohol and marijuana at a very young age and by 15 or 16 had graduated to the use of methamphetamine. He was able to maintain sobriety from 2015 to 2017, but began using controlled substances again in 2017. Again, to his credit, he has sought out assistance in the community for his addiction with some success, and then, as is often the case, experiences periods of relapse.
28Mr. Noble, I am certain, appreciates that getting over an addiction is not an event but it is a process. It is a process he has tried to engage in previously and as recently as the month of the incident in July 2018. He has expressed a desire to avoid substance use in the future and is open to treatment and programming. If ever there was a wake-up call for Mr. Noble, it would have to have been the events on July 11, 2018.
29Mr. Noble expressed remorse both to the court and to the author of the pre-sentence report. He states he feels “horrible” about his actions and he will certainly have to take part in programming and counselling to assist him in facing the reality of the profound impact his actions have had on others as well as on himself.
30Mr. Noble has been involved with the Canadian Mental Health Association for many years, most recently to assist him in dealing with depression and his ADHD. He has been on probation previously, seems to have done fairly well, and is deemed to be suitable for future community supervision.
31He has support within the community in the form of his mother, his younger sibling and aunt. His mother, his aunt and his step-mom have all penned letters to the court which have been marked as exhibits. His mother describes her son as a “good, kind and compassionate young man with a serious drug addiction that led to this tragic accident”. His mother makes no excuses for her son, nor condones what he has done. She simply writes her letter to the court so that the court can understand how her son got to the point he did in the summer of this year.
32She speaks of the extent of his drug addiction, states that her son is not a bad person, but one who is thoughtful and loving and who has been battling with a drug addiction that has effectively overwhelmed him. She, however, has confidence and faith that he will continue to fight his battle and be successful in dealing with his addiction.
POSITION OF THE PARTIES:
33The Crown emphasizes the numerous aggravating factors in this matter. The Crown submits that general deterrence and denunciation require a period of imprisonment that is lengthy in order to deter and make it clear to others who insist on continuing to drink or to take drugs and drive that if tragedy results, as it did here, there will be significant consequences. The Crown advocates for a sentence of eight to ten years’ imprisonment together with the various ancillary orders. With respect to the June count of impaired operation, the Crown seeks a fine and a period of prohibition.
34The defence acknowledges the serious consequences of Mr. Noble’s actions and conduct, both in June and July 2018. The defence submits that his pleas of guilty, his youthfulness and his desire to deal with his drug addiction should be factors the court considers in imposing a period of imprisonment that will not crush Mr. Noble. The defence suggests the appropriate disposition is one of six years’ imprisonment.
PRINCIPLES OF SENTENCING TO BE APPLIED:
35The sentencing of an individual such as Mr. Noble is a difficult exercise. Mr. Noble faces some extremely serious criminal charges which effectively cry out for denunciation. Still, the court recognizes that sentencing is a human process and the fit sentence to be imposed by this court is the product, not only of the circumstances of the various offences to which Mr. Noble has pled guilty, but also the circumstances of Mr. Noble himself. Sentencing is not an exact science and the court retains the flexibility needed to do justice in individual cases. Each case that comes before the court is conducted as an individual exercise.
36In Regina v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal, Mr. Justice Doherty noted at para. 87 as follows:
“Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.”
37The fundamental purposes of sentencing established by section 718 of the Criminal Code are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and the community.
38A further principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Noble and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.
39Section 718.2 of the Criminal Code sets out that a sentence should be similar to sentences imposed on similar offenders and where consecutive sentences are imposed the combined sentence should not be unduly long or harsh. Further, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and 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. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
40The Crown has provided a book of authorities and within that book the Crown prepared a sentencing chart summarizing the facts of the cases relied on, the sentencing principles applied and the ultimate sentence imposed. I have attached as a schedule a copy of that particular summary. I have reviewed those cases as well as others and the defence has fairly acknowledged that the cases provided by the Crown adequately set out the principles to be applied in circumstances such as here.
41Clearly and without a doubt the cases provided illustrate, as do others, that denunciation and deterrence are primary sentencing principles to be considered when dealing with counts of impaired driving causing death and impaired driving causing bodily harm. The sentences the courts have imposed are meant to reinforce the serious consequences of driving while one’s ability to do so is impaired by alcohol or a drug and, as noted by both counsel, the sentences imposed have increased rather significantly over the past number of years.
42In Regina v. Suter, 2018 SCC 34, the Supreme Court of Canada reinforced that sentencing is a highly individualized process and requires a delicate balancing of the various sentencing principles and objectives that I have set out previously. In that particular case the court was dealing with the appropriate sentence to be imposed for refusing to provide a breath sample knowing that the accused had caused an accident resulting in death. For the sake of the discussion in that case, the court was of the view that in such a case an accused is to be treated for sentencing purposes in the same manner as sentencing on impaired driving causing death and driving over 80 causing death. Justice Moldaver at paragraph 27 of that case noted as follows:
“The sentencing range for these offences has been quite broad — low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years — because courts have recognized that they cover a broad spectrum of offenders and circumstances: see R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para. 40; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641, at para. 21; Lacasse, at para. 66. An offender’s level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.”
43Dealing with the range of sentencing for matters such as that before the court, the matter of sentencing ranges has been noted in Regina v. Lacasse, 2015 SCC 64, and previously in such cases as Regina v. Jacko, 2010 ONCA 452, where at paragraph 90 the court stated:
““Sentencing ‘ranges’…are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality… Individual circumstances matter.”
44In Regina v. Lacasse, at paragraphs 57 to 58 and 60 to 61, the Supreme Court stated:
“Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered ‘averages’, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.
In other words, sentencing ranges are primarily guidelines, and not hard and fast rules.”
45The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range as long as it is in accordance with the principles and objectives of sentencing. The court repeatedly recognized, as have other courts, that sentencing is a “highly individualized exercise” that ultimately determines a sentence that is just and appropriate.
46In Regina v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, the Supreme Court of Canada indicated when dealing with the issues of retribution and denunciation at paragraph 369 as follows:
“The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.”
AGGRAVATING FACTORS:
47The aggravating factors in this matter are as follows:
Mr. Noble, although a youthful adult offender, is not a first-time offender. He has been involved in the criminal justice system both as a youth and as an adult, has spent time in custody as an adult and been subject to two previous probation orders. It would seem those sentences have had minimal impact on the accused.
On June 14, 2018 he was operating a motor vehicle without insurance and using plates on that vehicle which were not authorized. More importantly, he was operating the vehicle while his ability to do so was impaired by a drug. His driving was erratic, in excess of the speed limit and only ended when, while being followed by the police, his vehicle ended up in a ditch. The signs of impairment on that occasion were obvious. He had the good luck not to be injured in the incident and was released on terms. It was that offence he was on bail for at the time of the July 11, 2018 incident, less than one month later.
On July 11, 2018, notwithstanding already facing a charge of impaired driving, Mr. Noble chose once again to consume drugs and operate a motor vehicle. He once again placed himself behind the wheel of a motor vehicle while so impaired, putting others in the vehicle and those using the roadway, at risk.
On this occasion, the vehicle was occupied by two others, Mr. Harper and Ms. Triggerson. The vehicle also had been stolen and Mr. Noble has acknowledged that he possessed that vehicle with that knowledge.
Mr. Noble operated the motor vehicle while under the influence of drugs at an excessive rate of speed and he continued to do so notwithstanding the urging of both passengers to slow down as they could see Mr. More’s vehicle approaching the intersection. Ms. Triggerson implored Mr. Noble to do so, only to be greeted with an elbow to her face and being told to “shut up” by Mr. Noble. The facts indicate that not only did Mr. Noble fail to slow down, he accelerated his vehicle, failed to stop at a stop sign at the intersection and entered the intersection at an estimated speed of 120 kilometres an hour, striking Mr. More’s vehicle and trapping Mr. More inside.
Mr. Noble’s conduct caused the death of Mr. More and serious injuries to both Mr. Harper and particularly Ms. Triggerson. Remarkably, he himself received only minor injuries. His conduct at the scene, both before and after the collision, speaks to his level of impairment, as do his comments to the author of the pre-sentence report that he does “not have a good recollection of the circumstances prior to the incident occurring”.
The impact of Mr. Noble’s conduct on the family of Mr. More and others can only reasonably be described as profound and devastating. The loss of Mr. More to his family and community of friends and relatives cannot be overstated. His death was truly a tragedy, a tragedy that could have been so easily avoided. Although there are no victim impact statements from either Mr. Harper or Ms. Triggerson, they both suffered significant injuries, particularly Ms. Triggerson who suffered burns to her body, fractures, lacerations and the loss of her unborn child.
MITIGATING FACTORS:
48The mitigating factors in this case are as follows:
Mr. Noble has entered pleas of guilty to all counts. That in itself is an expression of remorse and has saved further victimizing the family of Mr. More and others from being exposed to a preliminary hearing and/or a trial and a prolonged proceeding. I also find that his remorse is indicated through his comments to the court directly and through the pre-sentence report. I am satisfied Mr. Noble regrets very much his actions on July 11, 2018. He was visibly emotionally impacted by the various victim impact statements as they were read and I accept that his remorse is genuine and sincere.
Mr. Noble has experienced an abusive background as a child. That has led him to seek relief through alcohol and drugs. He has been involved with both since an early age and one must keep in mind that he has only recently turned 22 years of age. He has not ignored his issues and has attempted to deal with them appropriately on more than one occasion. He is committed to seeking out help, has been so in the past and will be in the future. He is not beyond rehabilitation.
Mr. Noble also has mental health issues and again he has and will continue to seek support in the community to deal with those issues. I strongly suspect he will also have to deal with coming to grips with the impact his conduct has had on others and will need supports in that regard. He has struggled in school but persevered and obtained his high school credits and hopefully he can address his other issues as successfully.
I note the comments of his mother and aunt as set out in the letters of support that have been filed. Mr. Noble has been described as kind and compassionate. The actions that have brought him before the court are a direct result of his drug addiction and do not represent the person he is otherwise. I have read the comments gleaned from the letters filed on his behalf and hopefully he will call on the support of those individuals while serving his sentence and after he is released from custody.
Mr. Noble, although only 22 years of age, has never served a lengthy period of custody previously and this will by far be the longest period of time he has spent in custody. It will also be his first penitentiary sentence.
SENTENCE TO BE IMPOSED:
49There is no doubt that Parliament, by imposing maximum periods of imprisonment for the offences of impaired operation cause death and impaired operation cause bodily harm of life and ten years respectively, meant the sentences imposed by the court to be reflective of the consequences of such conduct. A deterrent sentence is a primary concern and is meant to serve as a warning to other drivers of motor vehicles that if they undertake to operate a motor vehicle while their ability to do so is impaired by alcohol or a drug they are taking a chance that someone will be injured or worse, and the penalty will be increased.
50Driving is a privilege, not a right and involves a high degree of responsibility. Members of the community have a right to feel safe and secure when travelling from place to place. They should be confident that individuals using the public roadways will operate their motor vehicles in a lawful and responsible manner.
51Mr. Noble’s actions on both offence dates were irresponsible, reckless and on July 11, 2018 such conduct has done irreparable harm to many. His degree of moral blameworthiness is high and the consequences of his actions heartbreaking.
52This court hears day in and day out charges involving impaired operation by drug and alcohol of motor vehicles. Sometimes the consequences for individuals committing such offences are personal to the accused. Sometimes they are not so restricted. Such is the case here where a family’s life has been shattered by the needless death of a loving and caring father and two other persons have suffered serious personal injuries.
53For decades now Parliament and the courts have, by legislation and rulings, continuously stressed the seriousness of these type of charges. There is no sentence that can be imposed today that can possibly rectify the wrong done by the senseless crime occurring on July 11, 2018. At best, the court is hopeful that today will bring some closure of this particular chapter of this tragedy for the family of Mr. More and others.
54I have considered the principles of sentencing to be applied as well as the aggravating and mitigating factors present in this case. I have also considered the thoughtful and helpful submissions of counsel, both for the Crown and Mr. Noble.
55In arriving at what I feel is a fit and proper disposition in this matter, I am of the view that the charges of assault and possession of a stolen motor vehicle are separate and distinct courses of conduct on the part of Mr. Noble which are properly addressed by way of consecutive sentences. In dealing with the sentence to be imposed on the charge of assault I also keep in mind the circumstances surrounding that assault on Ms. Triggerson as well as the previous criminal history of Mr. Noble for similar type of conduct. Further, with respect to the June charge I intend to impose a period of custody on that charge as well, as I feel it is not only the appropriate penalty given the circumstances of that event, but also a fine, in my view, as suggested by counsel would be an academic exercise.
56The sentence imposed then will be as follows.
On the count of impaired operation cause death, the sentence will be seven years’ imprisonment.
On the counts of impaired operation cause bodily harm involving Mr. Harper and Ms. Triggerson, the sentence will be five years’ imprisonment concurrent on each count and concurrent to the seven year imprisonment imposed on the impaired operation cause death.
With respect to the June incident, there will be a sentence of 20 days’ imprisonment consecutive.
On the charge of assault with respect to Ms. Triggerson, there will be a sentence of three months’ consecutive.
On the charge of possession of stolen property, there will be a sentence of imprisonment of two months consecutive.
57In addition, on the counts relating to the June incident there will be an order of prohibition and Mr. Noble will be prohibited from operating a motor vehicle anywhere in Canada for a period of one year. On the counts relating to impaired operation cause death and impaired operation cause bodily harm there will be concurrent periods of prohibition for a period of five years, which periods of prohibition of driving privileges are to commence following the end of the period of imprisonment. Also, on the charges of assault, impaired cause death and impaired cause bodily harm there will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code.
58With respect to pre-trial custody, it is my understanding that Mr. Noble has been in custody since July 11, 2018, a total of six months and 13 days. Enhancing that period of custody by one and a half days for every day served, as agreed is appropriate by counsel, Mr. Noble should be given credit for pre-trial custody of nine months and 20 days.
59The total sentence of imprisonment that I have imposed on all counts is seven years, five months, 20 days. After crediting the enhanced pre-trial custody as noted of nine months and 20 days, there remains a period of imprisonment still to be served moving forward by Mr. Noble of six years and eight months. If not already so endorsed, all remaining charges against Mr. Noble are withdrawn at the request of the Crown.
Released: January 24, 2019
Signed: “Justice G. F. Hearn”
SCHEDULE
Case Info.
Facts
Sentencing Principles/ Issues
Sentence
R. v. Lacasse
2015 SCC 64, [2015] 3 SCR 1089
(SCC)
Imp. Driv. C.D. x 2
-Accused loses control of vehicle on curve on country road
-driving at approx. 130 kph in 75 kph zone
-impaired by alcohol & cannabis
-2 rear seat passengers die
-no criminal record, prior spdg. tickets
-accused 20 years of age
-accused pleads guilty
-deterrence & denunciation primary sentencing principles
-sentences for impaired driving offences are increasing, Parliament indicating harsher penalties needed to discourage ongoing drinking and driving
-prior driving record and drug use indicative that accused is irresponsible driver
6 ½ years custody
R. v. Kummer
2011 ONCA 39, [2011] O.J. No. 234
(OCA)
Imp. Driv. C.D. x3
Dang. Driv. C.D. x3
Imp. Driv. CBH x2
Dang. Driv. CBHx2
-Accused driving vehicle after hockey game in London
-2 passengers in vehicle, one passenger had warned him to slow down
-speeding: 122 kph in 70 kph zone
-goes through intersection, hits another vehicle with father and two 12 year olds
-after collision, vehicles burst into flames
-driver of other vehicle suffers serious injuries, 2 boys die
-one passenger in accused’s vehicle also dies, other suffers injuries
-Accused’s BAC – twice legal limit
-GP entered, no criminal record
-2007 careless driving conviction
-there is no cap or defined range for sentencing in these types of cases
-life imprisonment is the maximum for this offence, it must remain in the realm of possibility to impose it
-accused must be held accountable for consequences of his actions
-decision to disregard warning from passenger aggravating factor
8 years custody
R. v. Fallows [2017] O.J. No. 7053 (SCJ)
Imp. Driv. CD
Dang Driv. CD
Over 80 CD
Crim Neg. CD
-accused drinking with girlfriend at bar
-BAC approx. 200 mg. alc./100 ml.
blood
-accused drives into centre median of highway after entering from side road
-driving without licence or insurance
-girlfriend dies in collision
-accused attempted to interfere with crime scene to make it look like someone else was driving
-accused is convicted after trial by jury
-prior Over 80 conviction in 2011
-sentencing principles of denunciation & deterrence are paramount
-no fixed upper limit other than life imprisonment as set out in CC
-sentences are becoming more harsh for these offences
-although only one victim of this crime, that is still one life too many lost from this despicable crime
9 years custody
12 years prohibition
R. v. Fracassi [2017] O.J. No.12
(SCJ)
Imp. Driv. CD
Imp. Driv. CBH
-accused returning to Alliston after attending a concert in Toronto with 3 friends, designated driver dropped off first, then accused drives 2 friends home, then drives himself home
-accused had been drinking at concert
-accused runs into night work crew on street, injures one worker, runs head on into second worker and kills him
-slight elevation in speed over speed limit
-accused continues driving
-was asleep at wheel at time of collision, did not brake or take evasive measures
-BAC in range of 175-200 mg. alcohol/100 ml. blood
-convicted after trial
-accused family man, 4 children, business owner, much community support, no criminal record
-history of speeding tickets
-ICBH has 10 year max, ICD has life max sentence
-deterrence and denunciation are primary sentencing principles
-sentence must reinforce serious consequences of drinking and driving
-sentences have been increasing for these offences in recent years
6 years custody
7 years prohibition
R. v. Muzzo 2016 ONSC 2068, [2016] O.J. No. 1506 (SCJ)
Imp. Driv. CD x4
Imp. Driv. CBH x2
-accused returning home from a trip to Florida
-accused drives through a stop sign, collides with another vehicle
-accused exceeding speed limit leading up to the collision
-4 passengers in other vehicle die in collision, 3 of them children
-2 other occupants injured
-BAC in range of 190-245 mg. alc./
100 ml. blood
-accused pleads guilty
-no criminal record, but lengthy driving record
-denunciation and deterrence are primary sentencing principles
-max penalty for ICD is life imprisonment
-ICD will result in significant sentences even for first offences
-sentences increasing in recent years for these offences. “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.”
10 years custody
12 years prohibition
R. v. Morrisseau
2017 MBQB 26, [2017] M.J. No.51
(Man. SCJ)
Crim Neg CD x3
Crim Neg CBH x 2
Breach Recog x2
Breach Probation x1
-accused driving vehicle with 5 passengers after drinking all night
-accused speeding (150-160 kph in a 100 kph zone), driving recklessly
-loses control, goes into ditch, rolls
-3 passengers die, 2 passengers injured
-accused on bail with a curfew and alcohol prohibition, and on probation with an alcohol prohibition
-BAC in range of 214-229 mg. alc./100 ml. blood
-accused was suspended driver
-unrelated record, aboriginal, youthful
-accused pleads guilty
-trend in recent cases is for increasingly harsh penalties
-deterrence and denunciation primary sentencing principles
-Gladue principles evident in background and distressful upbringing
8 years custody for driving offences
8 months consecutive for other charges
5 years prohibition
R. v. Locke [2016] BCJ No.1764
(BC SCJ)
Crim Neg CD x 2
Crim Neg CBH x 1
Over 80 CD x 2
Over 80 CBH x1
Poss. CDSA (cocaine)
-single vehicle accident
-accused consuming alcohol prior to driving and using marijuana
-4 passengers in vehicle
-curves in road and accused’s speed (120-140 kph) result in loss of control, vehicle goes into ditch and rolls
-passengers begging accused to slow down
-2 passengers thrown from vehicle and die, another severely injured
-BAC in range of 110-133 mg. alc./
100 ml. blood
-convicted after trial
-criminal conviction for drug trafficking in 2011 and drug possession in 2009, no driving record
-accused seriously injured in accident, permanent brain injury
-sentences for these offences increasing in recent years
-culpability of the driver in engaging in reckless behaviour
-deterrence and denunciation primary sentencing principles
7.5 years custody
15 years prohibition