Court Information

Date: February 28, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jonathan McTague

Before: Justice Joseph F. Kenkel

Counsel:

• Mr. Juriansz for the Crown
• Mr. De Cruz for the accused

Reasons for Sentence

KENKEL J.:

Conviction

1. Mr. McTague was convicted after trial of two counts of Impaired Driving Causing Bodily Harm.

Facts of the Offence

2. Mr. McTague approached an intersection and drove into the right turn lane attempting to pass the stopped cars on the right. He accelerated and drove into an oncoming car that was completing a left turn through the intersection. The driver of the car he struck was injured and his own passenger was badly injured.

Mitigating Factors

3. The mitigating factors include:

• The fact that Mr. McTague has been subject to restrictive bail conditions since November of 2011 without incident.
• That Mr. McTague has engaged in alcohol counselling since the offence and reports that he's been sober since the incident.
• Mr. McTague's statement to the court that he's recognized his alcohol problem and is prepared to take responsibility for the offence.
• Mr. McTague has not been sentenced to custody for drinking and driving before.

Aggravating Factors

4. There are several serious aggravating features:

• The aggressive driving including tail gating and the deliberate risk taking in trying to pass on the right and accelerate around stopped cars at the end of a yellow light.
• The high blood alcohol level at the time of driving which the most conservative estimate puts at 180mgs.
• The fact that Mr. McTague had an Interlock restriction on his license and that he was operating a vehicle without the required Interlock. This shows that he planned to drink and drive and it shows that he had at the time a complete disregard for public safety and the measures that were meant to protect the public from this type of harm.
• Mr. McTague has a prior record with a conviction in 1990 for Over 80 and a more recent conviction in 2006 for Impaired Driving. He received fines for both offences.
• The serious personal injury that resulted from the collision.

Sentencing Submissions

5. The Crown submits that the accused should be sentenced to jail for 18 months to 2 years less 1 day followed by probation and a 5 year prohibition order. The defence submits the sentence should be 9 to 12 months and agrees with the probation and prohibition request.

Sentencing Principles

6. In this case it's very lucky that nobody was killed. General deterrence is the paramount objective in sentencing drinking and driving offences where significant injury has resulted. While I'm mindful that the accused has not received a custodial sentence before, has made progress in counselling since the offence, and has obeyed restrictive bail conditions for more than a year the circumstances of the offence, the serious personal injury that resulted, and the aggravating circumstances set out above all require a significant custodial sentence.

Sentence Imposed

7. Mr. McTague will be sentenced to 12 months in custody to be followed by two years probation on the following terms:

• Keep the peace and be of good behaviour
• Report to probation as required
• Continue counselling for alcoholism as directed by probation
• Sign any releases necessary for probation to monitor your compliance with this order
• Not occupy the driver's seat of any motor vehicle
• Not possess keys to any motor vehicle

Driving Prohibition

8. In addition, Mr. McTague will be prohibited from operating a motor vehicle for a period of 10 years. I find that the 5 year period submitted by both counsel is not sufficient to protect public safety given the prior record and the facts of these offences which include deliberate circumvention of the Interlock program that was meant to protect public safety.

Delivered: February 28, 2013

Justice Joseph F. Kenkel