COURT OF APPEAL FOR ONTARIO
CITATION: R. v. LaForme, 2014 ONCA 367
DATE: 20140507
DOCKET: C58092
Laskin, Pepall and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Applicant/Appellant
and
Marvin LaForme
Respondent
Michael Perlin, for the appellant
Lauren M. Wilhelm, for the respondent
Heard: May 6, 2014
On appeal from the sentence imposed on November 6, 2013 by Justice Donald J. Gordon of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The Crown seeks leave to appeal from a conditional sentence of imprisonment imposed following the accused’s guilty plea to impaired driving causing bodily harm. The defence concedes that the sentence imposed was not available because s. 742.1 forecloses the imposition of a conditional sentence for a “serious personal injury offence,” defined in s. 752 of the Criminal Code as:
- An indictable offence
- Punishable by a term of imprisonment of ten years or more
- With conduct endangering the life of safety of another person.
[2] The accused drank 8-10 beers during the afternoon of February 5, 2011 until he was cut off by the bartender. She warned him not to drive, however the accused drove at a high rate of speed, swerved in and out of his lane on snow covered roads, lost control of his truck and rolled it. A passenger was rendered a quadriplegic as a result of the accident. The accused’s blood-alcohol level was more than double the legal limit.
[3] The Crown sought an 18 month jail sentence following the plea and renews that submission before this court. Defence concedes that this is within the range of appropriate sentences but suggests that the term of imprisonment should be attenuated by the accused’s personal circumstances.
[4] The accused is 72 years old. He has suffered from serious health issues. In November 2011 he was diagnosed with two brain aneurysms. One required surgery. The other requires monitoring because a rupture could lead to death. On March 13, 2013 he underwent a total knee replacement complicated by cellulitis which developed after the surgery and which persisted at the time of sentencing.
[5] The accused is a member of the Mississaugas of New Credit First Nation. He grew up on the New Credit Reserve. For 22 years he served as elected councillor for the New Credit Council.
[6] The Gladue report prepared for the purpose of sentencing indicates that the accused’s own father was a drinker and that the accused started drinking at the age of 12 years. He was not taught any native language, nor instructed in his aboriginal culture.
[7] While his counsel describes him as an aging aboriginal man who has battled alcohol for most of his life, he has made significant contributions to his community. He worked as a welder, taught welding at a local college and ran a business for 25 years. He is now retired, does volunteer work and is supported by Canada Pension payments.
[8] He is reported to have stopped consuming alcohol after this offence. He has five prior driving related convictions which are quite dated: dangerous driving in 1968, over 80 operation of a vehicle in 1973, failure to provide a breath sample in and impaired driving in 1987. He was convicted of assaulting his wife in 1998.
[9] The accused himself lost three siblings as a result of separate incidents of impaired driving.
[10] Sentences for impaired driving causing bodily harm frequently attract custodial sentences. Denunciation and general deterrence require emphasis because of the serious consequences for other users of the roads. (See R. v. Junkert, 2010 ONCA 549). Sentences of four to five years have been upheld for impaired driving causing death. (See R. v. Ramage, R. v. Niganobe, 2010 ONCA 508, R. v. Hall, (2007),2007 ONCA 8, 83 O.R. (3d) 641).
[11] The consequences for the accused’s passenger have been catastrophic. Timothy Henry is a developmentally delayed, but was able to live independently before the accident and participate fully in family and community events. Now he is confined to a wheelchair and needs help to do all activities. He lives in a nursing home surrounded by others much older than he, where, as he says, “people passing away on a regular basis is part of his daily life.”
[12] Here the sentencing judge imposed a conditional sentence because he was concerned that the accused’s health problems might go unattended if he were incarcerated. While the accused does have health issues, there is no basis to believe that he would be any less at risk in the community as opposed to within a custodial institution.
[13] The accused has now served five months and ten days of the conditional sentence of imprisonment, under house arrest, and requiring him to perform community service. The respondent submits that he should get credit for this time, perhaps on a 1.5 to 1 basis since parole, statutory remission and early release do not apply to conditional sentences, and that the court should consider staying any further sentence because of the hardship associated with incarceration at this stage, in light of the respondent’s personal circumstances. On the other hand, house arrest has been less restrictive of his liberty than a jail sentence.
[14] The usual credit in these circumstances has been on a one for one basis. (See R. v. G.C.F. (2004) 2004 CanLII 4771 (ON CA), O.J. No. 3177)
[15] In our view, given the seriousness of the offence, a stay is not appropriate. (See R. v. Veysey, 2006 N.B.C.A.).
[16] We see no reason to depart from the norm of credit on a one for one basis, rounding the time served on the conditional sentence to six months. After credit for this time, the accused is sentence to 12 months.
“John Laskin J.A.”
“S.E. Pepall J.A.”
“G. Pardu J.A.”