COURT OF APPEAL FOR ONTARIO

DATE: 20000822

DOCKET: C33446

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) -and- MATTHEW MOULD (Respondent)

BEFORE: FINLAYSON, GOUDGE AND FELDMAN JJ.A.

COUNSEL: Christine Tier, for the appellant

Norm Boxall, for the respondent

HEARD: August 11, 2000

On appeal from the sentence by The Honourable Mr. Justice Christopher M. Speyer dated December 10, 1999.

E N D O R S E M E N T

[1] In this case the respondent was found guilty after trial of impaired driving causing death and impaired driving causing bodily harm. The circumstances, as in all such cases were tragic. The respondent and two of his friends were drinking together. The respondent’s driving caused the death of one friend and injury to the other friend.

[2] The trial judge imposed a conditional sentence of fifteen months with a five year suspension from driving. The Crown appeals the sentence. The Crown takes the position that the offence required a penitentiary sentence and, in any event, it was an error to impose a conditional sentence. The Crown says that the trial judge erred by over- emphasizing both the exemplary character of the respondent as well as the wishes of the surviving victim and the family of the deceased victim who opposed the imposition of a custodial sentence.

[3] In our view, the trial judge made no error in this case. To the contrary, he carefully considered all the evidence which was submitted on sentence as well as the relevant principles of sentencing and the case law. Although he clearly put significant weight on the good character of the respondent and on the comments expressed by the families of the victims, he did not overemphasize those factors. He noted in his reasons:

It is the intent of Parliament that victims participate in the sentencing process and their views be taken into account. I wish to emphasize, however, it is the duty of a sentencing judge to sentence an offender in accordance with legal principles and not solely on the views of the victims.

[4] In coming to his conclusion with respect to sentence he also stated:

I recognize this court must be cautious in imposing a conditional sentence to be served in the community for such serious offences. One cannot turn a blind eye to the carnage and heartbreak caused by drunk drivers year after year. That is why a sentence of imprisonment is usually imposed in order to show this type of conduct will not be tolerated. Nevertheless, I have concluded that a conditional sentence is appropriate in this case. I am satisfied that such a sentence meets all the criteria set out in s. 742.1(a) and (b) of the Code, including a finding that the appropriate sentence is one of less than two years imprisonment.

As noted in Biancofiore a conditional sentence is a sentence of imprisonment and can have the necessary denunciatory effect notwithstanding the offender serves it in the community. S. 7.18(2) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment.

[5] In our view, there is no basis for this court to interfere with the sentence imposed by the trial judge.

[6] Leave to appeal sentence is granted but the appeal is dismissed.

Signed: “G.D. Finlayson J.A.”

“K. Feldman J.A.”