DATE: 2001-03-26

DOCKET: C34560

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. LARRY HEASLIP (Respondent)

BEFORE: McMURTRY C.J.O., FINLAYSON AND LABROSSE JJ.A.

COUNSEL: Alexander Hrybinsky

For the appellant

Paul J. Osier

For the respondent

HEARD: MARCH 20, 2001

On appeal from the sentence of Justice M. J. Girard, sitting without a jury, dated June 7, 2000.

E N D O R S E M E N T

[1] The crown is appealing the sentence of the respondent who pleaded guilty to two counts of impaired driving causing death and one count of impaired operation of a motor vehicle causing bodily harm. The sentencing hearing was held on June 7, 2000 before Justice Girard (the sentencing judge) and the respondent was sentenced to a term of three years’ imprisonment on the three counts to be served concurrently. A six year driving prohibition was also imposed.

[2] On November 25, 1999 at about 8:30 p.m. the respondent was driving his automobile on Highway #6 north of Hagersville, Ontario, in the Town of Haldimand. The respondent’s blood alcohol level at the time was estimated to be between 147 and 182 milligrams of alcohol per 100 millilitres of blood. Highway #6 is a two lane highway for north/south traffic. The respondent crossed into the southbound lanes while travelling northbound for approximately seven seconds until he collided with a southbound vehicle driven by Sandra Koocher. There is no doubt but that the consequences of the respondent’s impaired driving had horrific and catastrophic consequences. Mrs. Koocher’s two children Aaron age 13 and Devin age 7 were passengers in her vehicle. Both children died due to injuries sustained in the collision and Mrs. Koocher herself was injured, sustaining a heart contusion, bruising and a black eye.

[3] Both parents testified about the devastating impact that this event has had on them. Their very eloquent testimony reflected in very moving terms the terrible tragedy that had occurred and their ongoing suffering which would probably be with them for the rest of their lives as a result of the loss of their two young sons.

[4] The Pre-sentence Report indicates that the respondent is 41 years old and at the time of sentencing he resided with his common law wife and her three children. The respondent was steadily employed and does not have a criminal record. A number of letters were filed attesting to the good character of the respondent.

[5] This court has long recognized the need for penitentiary sentences in order to provide general deterrence in cases of impaired driving causing death. The sentencing judge also referred to R. v. McVeigh (1985) 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), where MacKinnon ACJO stated that:

Members of the public when they exercise their lawful right to use the highways of this province should not live in 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 is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[6] In McVeigh, supra, the accused was sentenced to three years for impaired driving causing death. In that case, the accused while very drunk struck the victim who was sitting on his bicycle near the curb in a well lit area. The accused was 31 years old and had no prior criminal record but did have a serious problem of alcohol abuse.

[7] The sentencing judge also referred to R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (S.C.C.) where this court again reiterated that “general deterrence is the paramount objective in sentencing for offences of drinking and driving, especially where serious consequences result” and referred to the Supreme Court of Canada decision in R. v. Bernshaw (1995) 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 where Cory J. stated:

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.

[8] In R. v. Linden, this court also recognized that cases involving drinking and driving did not demonstrate a particular range of sentencing but rather that the sentences were driven by the almost “infinite variety of circumstances in which this offence can be committed”.

[9] The sentencing judge recognized the enormous tragedy that had occurred in this case stating that the mother and father of the two children who were killed “were able to convey the terrible pain that this tragedy caused them” and that “no period of incarceration…would bring justice to…(the children’s) loved ones”. The sentencing judge also stated that the “accused must receive a sentence which will denounce his conduct”. He also found that the respondent was “truly remorseful”.

[10] In this appeal, the Crown emphasized the obvious aggravating factors, particularly the scope of the tragedy that resulted as a result of the respondent’s behaviour. The Crown does not take issue with the mitigating features which were found to be present by the sentencing judge as follows:

(i)early guilty plea by the respondent.

(ii)lack of a prior criminal record on the part of the respondent.

(iii)the respondent was remorseful.

(iv)the respondent is of generally good character.

[11] In R. v. Shropshire (1995) 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), the Supreme Court of Canada held that a variation of a sentence should only be made if a court of appeal is convinced that it is not fit in the sense that the sentence is clearly unreasonable. The Court concluded that absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only vary a sentence if it is demonstrably unfit.

[12] We are unable to find any of the factors outlined in Shropshire, supra, that would justify variation of the sentence in this appeal nor can we state that the sentence imposed by the sentencing judge is a substantial departure from the sentences customarily imposed for similar offenders committing similar crimes.

[13] Leave to appeal sentence is granted but the appeal as against sentence is dismissed.

“R. Roy McMurtry C.J.O”

“G. D. Finlayson J.A.”

“J. M. Labrosse J.A.”