COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carreira, 2015 ONCA 639

DATE: 20150922

DOCKET: C59381

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Carreira

Appellant

Anthony Marchetti, for the appellant

Stacey Young, for the respondent

Heard: September 14, 2015

On appeal from the sentence imposed on August 28, 2014 by Justice Marquis Felix of the Ontario Court of Justice.

Epstein J.A.:

[1] This prosecution arose out of a chance meeting at a bar. The appellant, socializing with friends, consumed a considerable amount of alcohol. While at the bar, the appellant struck up a conversation with Teegan Herold, a woman he had not previously met. Ms. Herold accepted his invitation to go for a ride on his motorcycle. At this point, the appellant was intoxicated. Two people, the person who was serving the appellant and another patron of the bar, urged the appellant not to drive. The appellant was not to be dissuaded. He left with Ms. Herold. A few minutes later, the appellant, going the wrong way on a one-way street, locked his brakes and crashed. The appellant suffered various injuries. Ms. Herold died on the spot.

[2] The appellant pleaded guilty to criminal negligence causing death and to driving without insurance. After a four-day Gardiner hearing, in which 11 witnesses testified, the sentencing judge was satisfied that the appellant had voluntarily consumed alcohol and that his consumption of alcohol was a significant cause of the accident. He sentenced the appellant to six years’ imprisonment.

[3] The appellant seeks leave to appeal and if leave is granted, appeals his sentence.

[4] The appellant advances four main grounds of appeal. He submits that the sentencing judge erred: (1) in failing to give appropriate credit for the fact that he pleaded guilty at an early stage in the prosecution; (2) in misapprehending his arguments on sentencing; (3) in his consideration of the aggravating factors relevant to sentencing; and (4) in imposing an unfit sentence.

[5] The appellant also submits that the sentencing judge erred in his calculation of credit for pre-sentence custody. The Crown concedes that the calculation was inaccurate and that the appellant is entitled to 12 days of additional credit. In the light of this concession, I would allow the appeal in respect of this narrow issue.

[6] However, for the reasons that follow, I would reject all other grounds of appeal advanced by the appellant. I see no error in principle in the sentencing judge’s treatment of the appellant’s guilty plea, his consideration of the applicable aggravating factors or his understanding of the appellant’s arguments. Nor, in my view, is the sentence imposed manifestly unfit for this offender and this offence.

Background

[7] At the conclusion of the Gardiner hearing, the sentencing judge found the appellant had not rebutted the presumption that his consumption of alcohol was voluntary. He also rejected the appellant’s assertion of a positive duty owed by the restaurant server not to serve him alcohol, as an after-the-fact justification for the appellant’s intoxication. The sentencing judge found the appellant’s level of intoxication – over 160 milligrams in 100 millilitres of blood – to be the most significant contributing factor to the cause of the crash.

[8] In his comprehensive reasons for sentence, the sentencing judge emphasized the many opportunities the appellant had to reconsider operating his motorcycle. He noted the high rate of speed at which the appellant was travelling and considered the type of vehicle, coupled with the appellant’s knowledge of the enhanced ability required to operate, and the specialized risk associated with, the particular type of motorcycle he was driving. The sentencing judge gave the appellant credit for his early guilty plea, but balanced it against the Crown’s strong case and the significant amount of litigation around the issue of voluntary consumption of alcohol.

[9] The sentencing judge regarded the appellant as a remorseful, family-oriented young man with an excellent employment history. He also found that the appellant had taken steps to address his alcoholism and had good rehabilitation potential. However, the sentencing judge reasoned that specific deterrence was necessary, given the appellant’s extensive provincial offences record and his operating a motorcycle without regard for the law requiring insurance. General deterrence and denunciation were also necessary considerations in arriving at a fit sentence.

[10] The sentencing judge rejected the defence submission that a fit sentence was one between 30 months and three years and accepted the Crown’s position that a prison term of six years was appropriate. In addition to a six-year sentence, the sentencing judge imposed ten-year driving and weapons prohibitions, and a victim surcharge of $200. On the second count, driving without the requisite insurance, the sentencing judge imposed a $5,000 fine.

Discussion

(1) Did the Sentencing Judge Err in his Treatment of the Guilty Plea?

[11] The appellant argues that the sentencing judge erred by not giving sufficient credit to the fact that he pleaded guilty early in the proceedings. The appellant submits that the sentencing judge placed undue emphasis on the strength of the Crown’s case and the fact that he forced the Crown to prove certain aggravating factors through a Gardiner hearing.

[12] The appellant submits that the central feature of his guilty plea is his decision to forego his right to test the Crown’s case. He argues that the sentencing judge’s reasoning that the mitigating impact of a guilty plea should be less in circumstances in which the Crown has a strong case was improper. Such reasoning implies that accused people who plead guilty because there is no “way out”, are entitled to less credit than those who give up a true chance to “get away with it”. The appellant’s high degree of remorse for his actions supports the conclusion that he would have pleaded guilty regardless of the strength of the case against him.

[13] The appellant also argues that he was not required to admit non-essential facts relied on by the Crown as aggravating factors. He was entitled to put the Crown to its proof. This right should not adversely impact his entitlement to full credit for admitting the essential elements of the offence.

[14] I would not give effect to this ground of appeal.

[15] In R. v. Faulds, 1994 CanLII 770 (ON CA), 20 O.R. (3d) 13, this court made it clear that the amount of credit a guilty plea attracts will vary with each case, saying, at para. 14:

The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. That is this case. Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide a degree of finality from the perspective of the victims which would not exist without the plea. Those features are present in this case and should be taken into consideration in assessing the appropriate sentence.

See also R. v. Basha (1979), 23 Nfld. & P.E.I.R. 286 (N.L.C.A.); R. v. Doucette, 2015 PECA 5, 121 W.C.B. (2d) 80 (P.E.I.C.A.).

[16] Here, in determining the effect of the guilty plea, the sentencing judge took into account the appellant’s remorse, the strength of the Crown’s case, and the impact of the guilty plea on the proceedings – all of which are factors identified in the above passage.

[17] The appellant also submits that the sentencing judge misapprehended his argument relating to the circumstances under which he ended up consuming an excessive amount of alcohol. This misapprehension further contributed to the sentencing judge’s giving less than the appropriate amount of credit for the guilty plea.

[18] The appellant is a self-admitted “binge alcoholic”. However, he testified that, on this occasion, he voluntarily consumed alcohol only after he had been drinking “Caesars” that he did not know contained alcohol. The appellant argues that, through this evidence, he was trying to contextualize his behaviour as a binge drinker who was disinhibited contrary to his intention.

[19] The appellant submits that the sentencing judge erred by interpreting this as evidence that the appellant was not truly accepting responsibility for his actions as opposed to evidence putting his drinking into context for the purpose of assessing his moral blameworthiness.

[20] I disagree. In my view, the sentencing judge cannot be faulted for the way in which he treated the appellant’s evidence about his drinking. The appellant decided to offer an explanation for having consumed too much alcohol. It was open to the sentencing judge to interpret the evidence as a nuanced attempt by the appellant to deflect responsibility for the extent of his inebriation.

(2) Did the Sentencing Judge Err in his Treatment of Aggravating Factors?

[21] The appellant submits that the sentencing judge erred in his analysis of the aggravating factors. He argues that the sentencing judge’s list of aggravating factors contains duplicate entries, demonstrating an overemphasis of some factors. It also contains factors that are not properly aggravating. In the result, the appellant says, the sentencing judge overstated his moral blameworthiness and imposed an excessive sentence.

[22] In his reasons for sentence, the sentencing judge lists 20 aggravating factors. These factors can be grouped into five categories: (1) the negligent manner of the appellant’s driving; (2) the location where he was driving; (3) the appellant’s ignoring warnings not to drive; (4) the fact that his driving was the sole cause of the crash; and (5) the appellant’s knowledge of the particular demands associated with the specialized type of motorcycle he was driving.

[23] With respect to these categories, other than the fourth, I am of the view that the sentencing judge gave appropriate weight to them in determining the appellant’s moral blameworthiness. While it may not have been necessary for the sentencing judge to particularize the identified categories as he did, when his reasons are considered as a whole, as they must be, I see no basis to conclude that he erred in his consideration of the aggravating circumstances applicable in this case.

[24] It is clear that the fourth category – the absence of environmental explanations or contributing causes for the crash – is not an aggravating factor and the trial judge erred in principle in considering it. I did not understand the Crown to suggest otherwise.

(3) Did the Sentencing Judge Impose an Unfit Sentence?

[25] If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit: R. v. Rahaman, 2008 ONCA 1, 76 W.C.B. (2d) 138; R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.).

[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.

(4) Did the Sentencing Judge Err in Calculating Pre-sentence Custody?

[27] The appellant received credit for the eight days he spent in pre-trial custody at a rate of 1.5:1 (12 days). However, the appellant did not receive credit for the additional eight days that he spent in custody from August 21 to August 28, 2014 when his sentence was imposed. The appropriate credit for his entire pre-sentence custody (16 real days) is 24 days. The Crown concedes that the failure to grant the appropriate credit was an oversight and that the credit should be increased from 12 to 24 days. I agree.

Disposition

[28] For these reasons, I would allow the appeal in part, set aside the credit given by the sentencing judge for pre-sentence custody and substitute an order granting the appellant a total of 24 days’ credit for pre-sentence custody, resulting in a total effective sentence of 6 years less 24 days’ imprisonment. In all other respects, I would dismiss the appeal.

Released: September 22, 2015 (EAC)

“Gloria Epstein J.A.”

“I agree E.A. Cronk J.A.”

“I agree David Brown J.A.”