Information and Parties
Information No.: 10-003018
ONTARIO COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown
-and-
Philip Martin
Accused
Reasons for Sentence
APPEARANCES:
D. Zuraw – Counsel on behalf of the Crown
D. Clarke – Counsel on behalf of the Accused
Trial Date: August 15, 20 and 21, and September 17, 2012
Offences:
- Section 145(3) CCC – Fail to comply with recognizance
- Section 255(2) CCC x 4 – Operate a motor vehicle while impaired by alcohol, causing bodily harm
- Section 255(3) CCC x 2 – Operate a motor vehicle while impaired by alcohol, causing death
Reasons for Judgment dated: November 26, 2012
Reasons for Sentence dated: March 13, 2013
Thibideau, J.: (Written)
I – The Facts
[1] Mr. Philip Martin was found guilty after trial of the following seven offences.
a) operating a motor vehicle while impaired by alcohol causing death, Section 255 (3) CCC x 2
b) operating a motor vehicle while impaired by alcohol, causing bodily harm, Section 255(2) CCC x 4
c) Failing to comply with a recognizance Section 145(3) CCC
[2] The facts and circumstances related to the conduct and driving of Mr. Martin resulting in the convictions are detailed in the trial judgment – R. v. Martin, 2012 ONCJ 789, 2012-11-26.
[3] The convictions arose out of an accident that occurred on the 29th of August 2010 on the Six Nations Territory near Brantford Ontario when the driving conduct of Mr. Martin, impaired by the consumption of alcohol, resulted in the death of two of his passengers, severe injury to three of his passengers and severe injury to the driver of the other motor vehicle involved, who also had significant blood alcohol readings. The salient facts related to the motor vehicle accident relevant to sentencing are these.
[4] Mr. Martin operated his own motor vehicle which had defective brakes and deficient tires. He operated his motor vehicle for a significant period of time at night, at speeds well above the posted speed limit of 80 kph with an initial speed prior to impact of about 120 kph, and an impact speed of about 100 kph, despite excessive speed being brought to his attention by one or more of his passengers before the accident. While the roads were dry and the weather was relatively normal the accident occurred in an unlit rural area with patchy ground fog present.
[5] Except for driving at speed and failing to avoid a collision situation his observed driving was relatively unremarkable. However Mr. Martin had a blood alcohol content while driving in the upper range between the scientifically proven range of 66 milligrams and 144 milligrams of alcohol in 100 millilitres of blood. He continued to operate his motor vehicle after there was a discussion among his passengers over his alcohol-affected ability to drive.
[6] Mr. Martin permitted all five passengers to occupy the vehicle without wearing seatbelts, and permitted two passengers, both of whom died, to occupy the passenger's side front seat, one sitting in the lap of the other.
II – The Offender
Criminal Record
[7] These offences occurred on the 29th of August 2010 with findings of guilt on the 26th of November 2012.
[8] On the 6th of July 2009 Mr. Martin was convicted of the offence of operating a motor vehicle while having blood alcohol exceeding the legal limit with respect to an occurrence on the 21st of March 2009, his 18th birthday. The notable facts for this occurrence were:
Readings of 113 and 119 milligrams of alcohol in 100 millilitres of blood
Excessive speed attracting the attention of the police
His conduct amounted to a breach of an undertaking not to purchase, possess or consume alcohol with respect to a previous Youth Criminal Justice Act matter.
He received a minimum fine and a one year driving prohibition.
[9] He was also convicted on the 17th of September 2012 for offences which occurred on the 23rd of March 2012 as follows:
Failure to comply with a condition in an undertaking not to operate a motor vehicle
Failure to comply with a condition in an undertaking to abstain from the consumption of alcohol
Having the care and control of a motor vehicle while ability to operate the motor vehicle was impaired by alcohol.
[10] The summarized facts for these offences were the following. Mr. Martin was asleep behind the wheel of his motor vehicle at 3:40 a.m. in the morning, having parked the vehicle on the travel portion of a roadway, passed out with lights on and engine running, demonstrating several observed indicators of impairment by alcohol. For these three offences he was given a global sentence of 75 days, and a three year driving prohibition for the offence under s. 252(1)(a) of the Code.
Mitigating Factors
[11] Section 718.2(a) requires the court, in determining the appropriate sentence, to increase or reduce a particular sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
Gladue Report and Native Status
[12] A significant part of how Mr. Martin came to be the way he is, three occurrences in the community leading to convictions for a variety of offences related to drinking and driving over a three year period, an inability to understand how he places others at physical risk of death and injury, unable to improve his conduct over time, is explained by the facts and circumstances set out in the Gladue report. It is clear that a group of accepted Gladue factors have impacted the life of Mr. Martin.
[13] Mr. Martin, now 21 years of age, is of Mohawk ancestry. Both of his parents are from the Six Nations. He grew up in his birth blended family with a number of half siblings in a family situation characterized by pervasive alcohol use, parental separations, numerous changes of residence, in an emotionally destructive environment with little positive role modelling or parenting. His mother had personal issues, not of her own making, which pervaded her life and affected her ability to parent properly.
[14] At the age of 13 or so after the final parental separation Mr. Martin was included in a new blended family with a stepfather, living in an environment where excessive drinking was the norm he became a serious alcohol abuser at the age of 14. Upon reflection Mr. Martin remembers his three primary male role models were all alcoholics.
[15] In his teenage years he suffered the death of three friends, two of whom died as a result of impaired driving incidents.
[16] Numerous moves of residence through the years resulted in numerous schools attended and quitting school in grade 10. In his mid-teens he was injured significantly in a motor vehicle accident and by this time his life involved a mixture of alcohol and drugs. Mr. Martin is somewhat spiritually conflicted, observing both Christian tradition and Longhouse beliefs. His work record over the last four years or so had been sporadic and changing up until August of 2012.
[17] Mr. Martin has no specific personal memory of the events that gave rise to the charges before the court. He has expressed sorrow, taking responsibility and expresses empathy for the harm caused by his actions. As a result of the difficult personal history between Mr. Martin and his biological parents they have not been particularly supportive of him through this criminal court process. However there is now more involvement with his mother. This does not reflect so much the relationship between Mr. Martin and each of his parents but rather the personal issues of each of those parents, particularly his mother.
[18] From the accident he suffered a fractured hip, shattered pelvis and spent some three months in hospital. Since release from hospital he walks with a limp but continues to use alcohol as a coping mechanism for his chronic pain and to deal with the court process. The alcohol issue and new charges, also related to alcohol, have kept him in jail since August of 2012. Currently Mr. Martin suffers anxiety and chronic pain and has a significant prescription drug regime in order to deal with these conditions.
[19] In custody he has not been a problem inmate. He is beginning to make progress for his alcoholism while in the structured jail environment. He has restarted his schooling, engaged with Christian religion and native belief traditions.
[20] In summary there are specific personal and immediate family histories from birth until now for Mr. Martin, coupled with the more general considerations for an aboriginal person in the community, that are relevant Gladue considerations for sentencing purposes.
[21] However the argument that in this particular case for this particular offender committing these particular offences these factors should significantly reduce the range of appropriate sentence is not correct. Gladue factors relevant to the convicted person must be considered by the court to arrive at an appropriate sentence. However, that consideration does not necessarily result in a different lower sentence. There is a required different approach but not necessarily a resulting different sentence. The consideration and acceptance of both general and specific offender related circumstances with respect to aboriginal status and history is required.
R. v. Kakekagamic, 40 C.R. (3d) 383 (OCA)
[22] For the most serious crimes, particularly violent ones, sentences should not be automatically reduced from what would otherwise be a fit sentence for aboriginal offenders.
R. v. Gladue, (1999) 13 C.C.C. (3d) 385
R. v. Whiskeyjack, 2008 ONCA 800
[23] In R. v. Sackanay the trial judge was found to have erred in arriving at a sentence by ignoring aboriginal offender considerations, among other errors. But by applying the correct considerations including Gladue factors, the Court of Appeal upheld the trial level sentence of six years globally after taking into account 19 months pre-trial custody for sexual and aggravated assault.
Even where the aboriginal offender has a tragic disadvantaged background where alcohol is the backdrop for commission of violent offences and the risk of reoffending with respect to such offences the principles of denunciation, deterrence and protection of the public are paramount, with the result that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders.
R. v. Carrière, approved in R. v. Ipeelee, 2009 ONCA 892.
[24] In R. v. Niganobe, 2010 ONCA 508 a five year trial sentence was affirmed on appeal for an aboriginal offender convicted of impaired driving causing death where the driving conduct consisted of impairment of driving by alcohol, running a red light, colliding with another vehicle killing one person and seriously injuring another, with a prior conviction for impaired driving, and a court finding that the offender did not accept responsibility for his conduct.
Remorse
[25] Remorse has several components. In a general way remorse is a public statement of a private feeling of regret for having caused loss and damage in the community. It is a statement to those directly affected, those who have been injured, and the survivors of those who have died, the relatives and friends of those injured, that the person expressing remorse takes responsibility for the pain and suffering caused by what has happened.
[26] There is regret, which is not remorse. A wish that what has happened could be undone so that the person before the court, in erasing the harm, or wishing it could be erased, would not have to take responsibility and not bear the penalties imposed.
[27] More importantly for the community there is another aspect of remorse. It involves bearing personal responsibility for the harm that has been done to others directly and indirectly. A wish that that harm to others could somehow be erased or minimized is part of that. Saying "I'm sorry" is a part of the healing aspect of remorse, enabling those other persons affected and still present in the community to believe and understand that the harm caused is regretted because the people affected have worth and are important.
[28] Implicit in the demonstration of remorse in relation to others in the community has to be an understanding and an acknowledgment that the behaviour that gave rise to the pain and loss is a behaviour that is unacceptable, cannot be tolerated and cannot be repeated. In this particular case that aspect of remorse is in doubt. On two occasions, once in 2009 and once in 2012, the first occurring before and the second occurring after this matter now before the court, Mr. Martin operated a motor vehicle in such a way that his conduct in driving the motor vehicle drew the attention of the police and an investigation revealed that he was operating a motor vehicle with a blood alcohol content in excess of the legal limit or in an impaired condition. On the first occurrence in 2009 there was some speeding, an illegal blood alcohol content, with moderate signs of impairment. The facts with respect to the second recorded offence were much more significant with respect to public safety concerns, parking a vehicle in the middle of a travelled roadway late at night. This is compounded by the fact that the second offence event occurred about a year and a half after the event giving rise to the findings of guilt with respect to the matters now before the court for sentencing.
[29] Mr. Martin was not aware of findings of a fact with respect to these criminal matters now before the court at the time of the second findings of guilt in March of 2012 because the decision with respect to these charges was not rendered until the 26th of November 2012. However, he was well aware of the undisputed facts at the time of the event giving rise to these charges, namely, that he was operating a motor vehicle having consumed alcohol and he was involved in a collision which resulted in the death of two of his friends, serious injury to three of his other friends, and serious injury to the operator of the other vehicle, as well as himself. The sequence of events related to the operation of a motor vehicle involving consumption of alcohol leads to the inescapable conclusion that for Mr. Martin what happened on the 29th of August 2010 was not sufficient in itself to prevent him from operating a motor vehicle after having consumed excessive amounts of alcohol in March of 2012. In fact at the time he was under a legal obligation not to operate a motor vehicle and not to consume alcohol at all. The effects of what occurred on the 29th of August 2010 and the legal requirements that he not operate a motor vehicle or consume alcohol were all insufficient to prevent him from repeating his past illegal conduct related to alcohol and operation of a motor vehicle.
[30] It is in this context that the court and the community are entitled to call into question sincerity of any remorse said to be present here, at this point in time.
[31] Having said this we must be mindful that remorse is a mitigating circumstance, a lack of remorse is not to be seen as an aggravating circumstance, with rare exceptions. Those rare exceptions are not present here.
R. v. Giroux, (2006), 2007 C.C.C. (3d) 519 (Ont.C.A.)
Mr. Martin is a youthful adult offender with one prior occurrence leading to a similar offence conviction.
Aggravating Factors
[32] The events of the evening leading up to the accident and deaths and injuries flowing from the accident involved Mr. Martin driving his motor vehicle in the circumstances set out in a prolonged fashion over a significant period of time involving hours not minutes. During the course of this journey from party to party to ATM machine to bootlegger to point of accident, there were points at which Mr. Martin could have reassessed his position and his conduct, which he did not do. There was a general discussion, in which he participated, about his problematic ability to drive and the need for someone else to drive. The fact that the least intoxicated person present could not operate a standard shift motor vehicle was not a licence to continue with the same problematic conduct by Mr. Martin.
The expert evidence supported the view that the intoxicated state of Mr. Martin prevented him from making a rational assessment of the situations that occurred from time to time during the trip including the high risk involved in operating a defective vehicle at speed, at night, in patchy fog, on rural roads. Impairment by alcohol affected this decision making process negatively. It also prevented Mr. Martin from heeding the warnings that were present from time to time from individual passengers in his motor vehicle. He has a criminal record for two similar offences before a finding of guilt in this matter, one of which occurred before this event and one of which occurred afterwards. Two people died, four were significantly injured.
III – Impact on Victims and the Community
Victim Impact Statements
The victim impact statements have been presented to the court, mostly in writing, two orally. Each person who has presented a victim impact statement in a different way has showed a kind of loss and pain that is felt by family and survivors when people are killed or severely injured by impaired driving conduct. The most affecting loss is the death of the two persons involved, the loss of their potential for the future, the loss of their kinship, the loss of their friendship, the loss of their potential. The termination of one family line is mentioned. I notice that everyone talked about the emotional loss first and then the injuries and physical losses. That was significant. Those who survive continue to be emotionally affected. Post-traumatic stress disorder symptoms are clearly present with some. Each person's loss is felt to continue, even now over two years since the event, and that loss will continue. The trauma never goes away. As one victim said:
I remember the night so vividly as it's always running through my mind. Over and over, no matter how hard I try to suppress the memory, it will not go away.
IV – The Positions
The Crown Position
The Crown seeks a term of incarceration of a global sentence for all offences, taking into account pre-trial custody, of six to seven years. The Crown relies upon the case law supportive of that, as the Crown has put it to the court. The Crown also relies upon the thread in that case law that denunciation and deterrence are the primary factors in sentencing, not forgetting the other factors in sentencing, in arriving at a just and appropriate sentence for these kinds of offences.
The Defence Position
The defence takes the position that a period of custody for two years, give or take one day, one day less making a reformatory sentence, two years or more making it a federal penitentiary sentence, is sufficient. The argument is that the factors in the life of Mr. Martin have caused him to be how he is, where he is at at the present time, and these considerations are significantly mitigating factors with respect to sentencing. Proportionality is cited as a reason why the sentence should be much less than what is being sought by the Crown. These are essentially the two positions.
V – The Law and Sentencing Considerations
Similarity of Sentencing – Section 718.2(b) CCC
[33] Section 718.2(b) of the Criminal Code requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[34] The offender and the public have a right to an expectation that similar offenders committing similar crimes will receive sentences that are similar. There are no hard or rigid rules to conform to the stated sentencing principles. The nature and circumstances of the crime and the nature and the circumstances of the offender will result in varied sentences imposed. However, the courts are clear and relatively unanimous. Crimes involving drinking and driving, particularly those resulting in serious injury or death are dealt with in a manner that vaults denunciation and deterrence to the fore. Sentences of significant incarceration are the norm, not the exception. This is reflected in the historical movement toward harsher sentences for those offences over the last 20 years or so. In addition to considering the circumstances of the offence and the offender the court is also required to ensure that any sentence imposed is compatible with other sentences in the community with respect to the same offences, taking into account variations based upon individual circumstance.
[35] The larger community is Canada itself. The lesser community is the provincial jurisdictions. Within those jurisdictions are the individual municipal and regional communities with their own special needs and circumstances. On the national scale there is not uniformity of sentencing. Invariably some provinces specify a range, some provinces refer to other provinces in arriving at a range, all have their differences. However the similarities in terms of principle are remarkable. First there is more than lip-service to the mandated considerations as set out in the Criminal Code. Secondly there is an understanding that offences involving drinking and driving and serious injury or death must have serious consequences involving incarceration, premised on the belief that the principles of denunciation and deterrence are paramount in such cases. More recent cases from some of the provinces demonstrate a similarity of approach, with some variance in result.
1 – British Columbia
a) R. v. Berner, 2010 BCPC 305
Offences: Impaired causing death (1), impaired causing bodily harm (2), dangerous driving (1), dangerous driving (1)
Facts: Middle aged record-free offender with low alcohol readings with some mitigating life history
Sentence: Two years six months, global, concurrent
b) R. v. Matheson, 2011 BCSC 308
Offences: Over .08 causing death (1), over .08 causing bodily harm (1), impaired causing death (1), impaired causing bodily harm (1)
Facts: No record offender with unremarkable history
Sentence: Most serious, over .08 and impaired causing death, two years concurrent and one year probation; one year driving prohibition
2 – Alberta
a) R. v. Stimson, 2011 ABCA 59
Offence: Impaired causing death (1)
Facts: Nineteen year old native woman taking over driving from more intoxicated owner operator with alcohol readings of 100 and 140 milligrams in 100 millilitres of blood, single vehicle rollover killing a passenger with specific significant Gladue considerations
Sentence at trial: 90 days intermittent, two years probation; three year driving prohibition
Sentence on appeal: Two years less a day "bottom of range"
b) R. v. Coupal, 2010 ABQB 229
Offence: Impaired causing death (1), impaired causing bodily harm (2) et al
Facts: Two previous drinking and driving offences, severe intoxication – mounting sidewalk, hitting pedestrians, leaving scene and driving home with aggravating factors clearly outweighing mitigating
Sentence: Impaired causing death and impaired causing bodily harm (2) – four years concurrent; Fail to remain – nine months consecutive; Driving disqualified – three months consecutive; Total global sentence – five years
Note: In obiter if there had been trial rather than guilty plea the main sentence would have been six years
3 – Manitoba
a) R. v. Knight, 2012 MBPC
Offences: Impaired causing death (1), impaired causing bodily harm (1)
Facts: Guilty plea with respect to a person with no licence on impaired drive to liquour store, ignoring warnings from passenger about speed, left dying passenger at scene and fled, lying to authorities about presence of the passenger at scene once apprehended. Passenger alive when authorities arrived at scene but died subsequently. Gladue factors present.
Note: Detailed review of Manitoba and Ontario case law regarding sentence
Sentence: Impaired causing death – five and a half years; Impaired causing bodily harm – two years concurrent; fifteen year driving prohibition
Review of Manitoba case law including Manitoba Court of Appeal recommended range of five to six years for impaired causing death R. v. Ruiz Fuentes, 2010 MBCA 90
4 – Ontario
A review of sentences for these kind of offences has to begin with guidance and direction from the Supreme Court of Canada. That courts' decisions for offences involving drunk driving and death or severe injury make it clear that social policy and the protection of the public generally require significant periods of incarceration for convicted offenders. Our highest court set the sentencing scene in 1995, setting out the social problems arising from criminal behaviour that had to be addressed and how to address it. In Regina v. Bernshaw the court began the movement toward more significant sentences for these kinds of crimes with these words:
16 – 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.
[36] These specific words and the philosophy behind them have become the basis for ever-increasing penalties for crimes related to drunk driving over the years since then. Such crimes are described as much too prevalent, with attitudes changing, but not fast enough.
[37] Our Court of Appeal has made similar policy comments.
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased.
R. v. Kummer, 2011 ONCA 39, 266 CCC (3d) 32 (ONCA) at para 15
[38] In R. v. Daoud, 2011 ONCJ 192 at para 18, Dorval J., felt obliged to attach little value to sentencing decisions that were made before the Kummer decision in early 2011. This is the correct approach because the reasoning behind the sentencing considerations in Kummer continue to exist and the range of sentences for these kinds of offences show a steady upward trend which still continues.
[39] The current state of affairs is this. Our Court of Appeal in 2010 upheld a trial level sentence of four and five years respectively for first time offenders where drinking and driving considerations resulted in a single death.
R. v. Ramage, (2010), 2010 ONCA 488, 265 O.A.C. 158 (C.A.)
[40] In Kummer the court made it clear that such sentences were not a cap on the severity of sentencing where the maximum is life in prison. The result – where more egregious sentencing considerations were present, e.g., high blood alcohol level, multiple deaths, excessive speed, but the offender was youthful with no criminal record the Court of Appeal upheld an eight year sentence.
[41] Where the offender and friends went on a "crop tour" fuelled by excessive alcohol consumption and Percocets of a rural Ontario county in mid-2009, driving at a very high rate of speed with actual danger to others on the road over an hour or so, ignoring passenger warnings, continuing after one ditching of the vehicle, and attempting to concoct a story to avoid blame, the offender without a criminal record regarding driving offences in a situation where there was a death of a passenger the global sentence for several offences was 12 years, upheld on appeal as high but not unfit.
The Local Community
[42] The even more specific community is the area of Southwestern Ontario comprising Brantford, the County of Brant, the Six Nations Territory, and the New Credit lands, along with the adjoining jurisdictions like Simcoe and Haldimand. In this particular case the people involved were native persons and part of the native community. All of the offences took place on the Six Nations Territory. The people most effected by what has occurred are the family and friends, and the Six Nations community. Focus on such a restricted community by geographical area and community is encouraged by the courts in order to take note of the protection needs and the uniqueness of the local community. Having said this it is acknowledged that with respect to drinking and driving offences sentences should be driven by the almost infinite variety of circumstances in which these offences can be committed. This is why the sentencing judge represents and speaks for the community that suffers the consequences of the crime in a way that the Court of Appeal does not, being removed from that community.
R. v. Bush, supra, approving R. v. L.
[43] That being so rigidity in sentencing is to be avoided and ranges of sentence for a particular offence are to be looked at cautiously. Sentencing in previous cases provides guidance only.
R. v. Bush, supra, approving R. v. Junkert, supra.
In this case no evidence by way of statistics or otherwise has been heard that highlights the local community as more prone to drinking and driving offences than the general community.
Purpose and Principles of Sentencing
[44] The Criminal Code requires that any sentence process take into consideration the specific purpose and principles to be used in determining a sentence as set out in the Criminal Code. In relation to these offences they are the following:
1. Purpose – Section 718 of the Code
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
That purpose and those objectives must be in accord with the fundamental principle of sentencing as follows:
2. Section 718.1
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[45] Other sentencing principles relative to the facts of this offence and the circumstances of this offender are as follows:
3. Section 718.2
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relative aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing ...
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The Primary Purpose
[46] The legislation imposes the consideration of certain objectives contained in section 718 of the Criminal Code in order to arrive at a just sanction or penalty that maintains respect for law and the maintenance of a just, peaceful and safe society. This is a formulaic way of stating the need to have criminal penalties reinforce the view in the general community, and in specific communities within that general community, that the justice system strives to be impartial and non-violent, arriving at penalties for criminal conduct that are seen to be fair and appropriate by reasonable persons in the community being reasonably informed about the offence and the offender. The avoidance of penalties that are overly harsh or draconian, the avoidance of penalties that minimize to the point of triviality or that fail to take into account the harm done to individuals and the community at large helps to preserve respect for the administration of criminal justice and seeks to preserve a perception of a just system promoting a safe society.
[47] Six specific objectives are enumerated as a collective group of objectives to be considered in passing sentence. It is not required that all of them necessarily be considered equally for any sentence. Depending on the circumstances of the offence, its severity, its frequency in the community, the harm done by the conduct, community perception of the severity of the conduct, one or more of the stated objectives will have prominence.
[48] Similarly circumstances of the offender are relevant. Whether or not the offender is a youthful adult, someone with or without a criminal record, whether related or not, whether or not the offender demonstrates genuine remorse, is prepared to make reparations for his conduct, whether or not background factors such as mental health issues, upbringing, social history, will also play a part in determining which objectives will be relevant and to what degree.
[49] In this case the most serious offences are the offences related to operating a motor vehicle while impaired causing death or injury to the named individuals. Two persons died and four persons were significantly injured resulting in bodily harm.
[50] In these type of cases judicial authority is clear. The two objectives of denouncing unlawful conduct and deterring the offender from committing similar offences in the future along with others from committing similar offences in the future are the paramount considerations. This does not mean that the other enumerated considerations, including the apparently competing consideration of rehabilitating the offender are discounted, but rather that they play a secondary position. This is so in the various provincial jurisdictions across Canada particularly since the Bernshaw decision almost 20 years ago.
[51] In a variety of provincial jurisdictions that has come to mean that in cases of alcohol-related driving offences resulting in injury or death the primary considerations or objectives of sentencing are denunciation and deterrence both specific to the offender and general deterrence to others in the community. More so than with respect to virtually any other offence.
R. v. Johnson, 112 C.C.C. (3d) 255 (BCCA) para 29-30
Approved and followed in R. v. Voerman, 2012 BCPC 125 para 14, 18, 19.
[52] In Voerman (supra) Goudge, J. succinctly set out the social policy giving rise to these sentencing considerations as paragraph 19:
Denunciation and general deterrence are more important factors in relation to impaired driving offences than they are in relation to many other kinds of offences ... There is an historical reason for the difference. Thirty years ago, impaired driving offences carried little social stigma. Drinking and driving was much more common, and more widely condoned, then than it is today. It has taken 30 years of consistent and determined effort by governments, community organizations, police officers and courts to create a cultural consensus which resolutely condemns impaired driving by anyone in any circumstances. Despite the progress which has been made, impaired driving offences remain common, and often have tragic consequences. It is essential that the courts remain both vigilant and consistent in denouncing such offences.
Our own Court of Appeal in R. v. Kummer, supra has voiced similar policy considerations. MacPherson, J.A. at paragraph 15 stated the following:
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased.
This is in keeping with the same court's policy decision in R. v. Ramage, 2010 ONCA 488 wherein Doherty, J. A. at paragraph 74 said:
In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh, (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts ... The result in McVeigh demonstrates the court's commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs ... The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals.
This very specific focus on two of the objectives of sentencing set out in section 718 of the Code has been applied by trial courts in Ontario. In R. v. Daoud, 2011 ONCJ 192, Dorval, J. at paragraph 23 made the following observation:
In the last twelve months, therefore, the Ontario Court of Appeal has upheld sentences ranging from four years for a person with an exemplary background to eight years for a youthful offender who caused the death of two children and a young person. The principles that emerge from these decisions are quite clear. Although all principles of sentence enumerated in section 718 of the Criminal Code must be considered, general deterrence and denunciation remain the most important principles of sentencing in these matters ...
[53] It logically follows that the third enumerated consideration related to separating offenders from society, where necessary, is supported by these social policies and the considerations related to denunciation and deterrence.
[54] The objective of rehabilitation must be considered. But it is considered in the context of the primary considerations of denunciation and deterrence. Here where the offending person was 19 years of age at the time of the offence the objective of rehabilitation must have more prominence than if he was a person of a more mature age. Had he been a youthful offender under the Youth Criminal Justice Act (as he was approximately one and a half years prior to the event) different considerations would apply. The law chooses the 18th birthday as the dividing line between sentencing considerations for a youth and sentencing considerations for an adult. This must be adhered to. However, Mr. Martin's young age and all that goes with that, a greater probability of changed lifestyle, less mature thinking, and greater ability to adapt than a person of older years, all speak to the requirement that rehabilitation not be forgotten in this sentencing process.
[55] The promotion of a sense of responsibility in Mr. Martin and an acknowledgement of harm done to victims and to the community are related to but not identical to denunciation and deterrence. In this case for reasons already stated that promotion of a sense of responsibility and that acknowledgement of harm done cannot be achieved without a sentence of imprisonment because of the primary factors of denunciation and deterrence, and Mr. Martin's evident inability to change his problematic behaviour.
Fundamental Principle – Principle of Proportionality
[56] This principle must be adhered to in the context of the other sentencing principles to follow and the purpose of sentencing already referred to. With respect to the offence it is difficult to conceive of any offence that has more effect on the individual victim, the family members of that victim and the community. In this particular case two lives have been lost and the life potential for those two individuals is now forever gone. That loss radiates through the families involved, the specific community and the general community. Personal potential is lost forever. Family ties and community involvement is gone forever. With respect to the seriously injured it remains a question of time to determine what the permanent or long term or future effects of these injuries will be for three individuals. The court must also look at the degree of responsibility of Mr. Martin for what occurred. Paragraphs 47 and 48 of the trial judgment of this matter address this issue:
[47] The principle behind the impaired driving sections of the Criminal Code is this – a person who is intoxicated and operating a motor vehicle is prone to do things, or not do things, which result in substandard driving conduct making harm to others or property more likely than if the person was sober. The issue is impairment of judgement and performance. The evidence here is beyond reasonable doubt that both the judgment and performance was negatively affected by the level of alcohol in the blood at time of the accident causing impairment of the ability to drive properly. Some facts are obvious, the observable affect of alcohol on the demeanour of Mr. Martin, the high speed in problematic driving circumstances and slowed reaction time. Less obvious was the decision to continue driving when others had called his ability into question and to operate a motor vehicle with defective tires and brakes directly contributing to the fact of the accident and the severity of the accident.
[48] In short there is ample evidence to conclude that there was an element of fault sufficient to have Mr. Martin bear criminal responsibility, despite the contributory condition and behaviour of the other driver involved. On that night Mr. Martin was drinking and driving and this constituted a "significant contributing cause" to the deaths and injuries within the meaning of that phrase as interpreted by the Court in R. v. Nette, supra.
[57] Proportionality relates to both the offence and the offender. These two considerations may or may not be directly correlated. There is an inverse correlation when the offence is egregious and very harmful to the victim and the community, and when the offender is a first time youthful adult offender. There is a positive correlation when the offence is egregious and the offender has a substantial criminal record and has demonstrated little or no remorse. Each fact situation and each individual offender before the court is different and there is no formulaic sentencing regime, even when there is an accepted range of sentences available for any particular offence. Any sentence imposed must reflect the positive, neutral and negative factors making up the facts of the offence and the circumstances of the offender.
[58] In this particular case the offence was grave. People are dead and seriously injured. The driving conduct continued even after there were warnings that it was inappropriate or dangerous. The degree of intoxication was in the middle range. The conduct complained of went on for some time before the accident. Mr. Martin chose to operate his motor vehicle when he knew or should have known, that the lack of use of seatbelts, the lack of appropriate seating for everyone in the vehicle, coupled with his driving ability condition, was a recipe for disaster. In fact it was.
[59] This was not a momentary lapse of judgment or behaviour by Mr. Martin. More than one passenger gave evidence of what occurred that night. A car full with six individuals driving from place to place, from somewhere between 9:00 and 10:00 p.m. in the evening to the point of impact at approximately 2:37 a.m. in the morning, an off and on journey of some five hours. Several things came together to contribute to the nature and severity of the accident. First and foremost was the intoxicated condition of Mr. Martin as the operator of the vehicle. Secondary to that was the dangerous placement of the occupants of the motor vehicle in the motor vehicle. Along with that was the unsafe condition of the motor vehicle in relation to the very things that were required in order to have the vehicle stop in as short a distance as possible in any emergency – tires and brakes. All of this in the context of being warned by occupants of the vehicle that his speed and his intoxication was a concern.
VI – Sentence
[60] From all of this flows the assessment that the degree of responsibility of Mr. Martin for what occurred was extremely high.
[61] In this case as there is a positive correlation between deadly and extremely harmful conduct and Mr. Martin's perceived inability to cease driving while significantly intoxicated and his inability to turn his life around when he is in the community. Anything less than penalty in the higher range would bring the administration of justice into disrepute in the various communities referred to. The aggravating factors badly outweigh the mitigating factors in arriving at a just sentence.
[62] These offences occurred at one time, arising out of one extended event. As a result the sentences for these seven offences will be concurrent. This results in the most serious, impaired causing death, to be the operative sentence with respect to global sentence consideration. That appropriate sentence is six years. The appropriate sentences, with consideration for pre-trial custody, are as follows:
There are approximately five months rounded of presentence custody. So, moving forward from today, the notation for the sentences, taking into account five months already served, will be as follows:
Impaired operation of a motor vehicle causing death of Samantha Lee Henry-Thomas: Five months already served, five years and seven months to be served.
Impaired operation of a motor vehicle causing death of Joshua Edward Farnham: Five months already served, five years and seven months to be served.
Impaired operation of a motor vehicle causing bodily harm to Stevie Nicole Henry-Thomas: 4 years.
Impaired operation of a motor vehicle causing bodily harm to Jolene Francis Beaver: 4 years.
Impaired operation of a motor vehicle causing bodily harm to James Edward McAuley: 4 years.
Impaired operation of a motor vehicle causing bodily harm to Keith Chancey Jonathan: 4 years.
Breach of recognizance by failing to abstain from consumption of alcohol: 6 months.
[63] There is a non-opposed order for a DNA sample to be taken with respect to the six impaired operation offences constituting generic sub-category offences. The reason for the order is that this is not the first set of offences for Mr. Martin, his conduct is something that has a high risk of repetition in the community in the future, and the protection of the public far outweighs any considerations for his own personal privacy considerations.
The Crown requests a lifetime driving prohibition. The defence requests a prohibition of 10 years. These submissions presume that the court may treat these offences before the court as subsequent offences, based upon the existing record, with s.259.(1)(c) applying. The factors that resulted in the sentence continue to be the factors for that part of the sentence related to driving prohibition. Clearly there must be a large number of years before Mr. Martin can legally drive again. If he has commenced a road to rehabilitation, the hope is that he has, given his history, given the factors that have been part of his life virtually from the day he was born, that is going to be a long drawn out process in order that there be success.
So, clearly something in a large number of years is required to protect the public. On the other hand, as has already been indicated, Mr. Martin is now just 22 years of age. He has most of his life ahead of him. He has those considerations for a youthful adult offender as mentioned, which in some ways make his judgment less than perfect. For those reasons the appropriate sentence for a driving prohibition is 15 years and that will be with respect to those same six offences.
Dated at Brantford, Ontario
This 13th day of March, 2013
The Honourable Justice L. P. Thibideau