Ontario Court of Justice

Date: 17 June, 2016

Court File No.: Newmarket

Between:

HER MAJESTY THE QUEEN

— AND —

LUKE WEST

Sentencing

Before: Justice Joseph F. Kenkel

June 17, 2016

Counsel:

• Mr. Paul Tait — counsel for the Crown
• Mr. Gary Clewley — counsel for the defendant

KENKEL J.:

[1] Mr. West drove with a blood alcohol level more than double the legal limit. He crashed his car at such speed that it rolled over, causing serious injury to his passenger and himself. He has pleaded guilty to Impaired Driving Causing Bodily Harm.

[2] Both the Crown and defence agree that a jail sentence is required, but they are far apart as to how long that sentence should be.

The Position of Counsel

[3] The Crown submits that the accused should be sentenced to 12 to 18 months in the reformatory followed by probation with a driving prohibition for 3 years.

[4] The defence submits a sentence of 90 days intermittent followed by probation would suffice and suggests a prohibition of 4 years would better address the public interest than a longer jail term.

Principles of Sentence

[5] Drinking and driving offences are serious offences. As the Court of Appeal recently repeated in another drunk driving case from York Region, "every drinking driver is a potential killer". R v Ramage 2010 ONCA 488, [2010] O.J. No. 2970 (CA) at para 74.

[6] Section 718 of the Criminal Code sets out the objectives of sentencing including denunciation, general and specific deterrence, reparation for harm done, promotion of responsibility in the offender, acknowledgement of harm done and rehabilitation.

[7] The sentence imposed must be proportionate to both the gravity of the offence and the degree of the responsibility of the offender. Criminal Code s.718.1 In drinking and driving cases where bodily harm is caused, the central sentencing objectives are general deterrence and denunciation. R v Clouthier 2016 ONCA 197, [2016] OJ No 1232 (CA) at para 54, R v Laforme [2014] OJ No 2203 (CA) at para 10.

[8] The maximum sentence for Impaired Causing Bodily Harm is 10 years s.255(2). "As a general rule, custodial sentences are required where bodily harm is caused" in drinking and driving cases. R v Clouthier at para 54.

[9] In Clouthier the accused rear-ended two cars then smashed head-on into a third car causing serious internal injury to a passenger in that car. The accused was much like Mr. West. He was 21 at the time and had no prior record. He was employed, had a favourable pre-sentence report and he'd taken alcohol and drug counselling prior to sentence. He had a lower blood alcohol concentration (BAC) than Mr. West - 100 to 150mgs at the time of driving.

[10] The Ontario Court of Appeal held that a 5 month intermittent sentence imposed at trial was illegal and unfit. The court noted that the range of sentence for this offence varies, but for the facts and offences in Clouthier, "sentences in the mid to upper reformatory and lower end penitentiary range" would be appropriate. See: Clouthier at para 56.

Aggravating Factors

[11] The following circumstances aggravate sentence in this case:

• The accused's high blood alcohol level (BAC) which tested at 166mgs but at the time of driving would have ranged from 170 to 230mgs
• The threat the accused posed to public safety
• The accused's driving which resulted in significant damage and injury
• The injury he caused to his passenger who suffered two broken ankles and continues to require crutches more than a year after the crash

Mitigating Factors

[12] The mitigating factors:

• The accused is a young man 24 years of age
• He has no criminal record
• He entered a plea of guilty which along with his written statement to the court shows an appreciation of the gravity of his error and genuine remorse
• Mr. West undertook and completed a comprehensive 16 part counselling program regarding alcohol abuse which he concedes was a problem for him beyond the one night in question. He's also participated in relapse prevention.
• He took psychological counselling both to deal with the effects of the collision and to address underlying depression issues.
• He's been active in his community, volunteering over 60 hours to assist with a competitive team with the Vaughan Soccer Club
• He's continued to support the arts program at his former high school, volunteering over 60 hours to work with students there
• He continues to enjoy the support of family and members of the community including the victim and his family. Those who know him describe this incident as "out of character" for Mr. West

Analysis

[13] Mr. West is a young first offender with no criminal record. Those circumstances mitigate sentence but they are not uncommon in drinking and driving cases even where bodily harm or death is cause. Recent cases in York Region including R v Ramage 2010 ONCA 488, [2010] O.J. No 2970 (CA) and R v Muzzo 2016 ONSC 2068, [2016] O.J. No 1506 (SCJ) showed that the worst consequences can result even for first offenders who choose to drink and drive. As the Court of Appeal said in Ramage at para 75, "… many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases … general deterrence is of primary importance."

[14] The fact that the victim chose not to provide an impact statement, and that his family still supports their son's friend is relevant but the same factor was present in Ramage. The wishes of the victim and his family are always important, but sentences must reflect all of the principles set out in s.718.

[15] In Clouthier, the Court of Appeal indicated that a 15-18 month sentence would be appropriate for one count of impaired causing bodily harm with more serious injury than in this case, but where the accused had a lower BAC. That sentence also included punishment for two counts of Failing to Stop for two other collisions with the aggravating factor that Clouthier continued driving and attempted escape at the third collision until restrained by others. The reasons indicate that the Impaired Causing Bodily Harm component of the sentence was 11 to 14 months of the 15 to 18 month range.

[16] The 90 day sentence submitted by the defence in this case would not address the principles of sentence set out in s.718 and the need for general deterrence, denunciation and protection of the public. This sentence must address not only the bodily harm that was caused but also the great risk posed to the public at large. In the recent Muzzo case, York Region was again reminded of the tragic and devastating consequences that can result from drunk driving. Like Mr. Muzzo, Mr. West is a young man of otherwise good character who made the same mistake. He chose to drive with a similar high blood alcohol level knowing that everyone around him would be at risk. The only difference between the two is dumb luck. Mr. West crashed his vehicle but was lucky enough not to hit any other car. He was even luckier that both he and his passenger survived.

[17] I agree with the Crown that a 12 month sentence would be within the range in these circumstances, but given the many mitigating factors and the accused's work with young people in schools and sports I've decided to combine a significant custodial sentence with something that's perhaps even harder, a requirement in probation that he go to high schools in York Region and speak about this case and the consequences of drinking and driving. The accused made that offer through counsel and in my view that would have more of a general deterrent impact upon an important target audience than ordering that the accused spend a few further months in jail. If Mr. West does not fully comply with that probationary term, the custodial option remains as a remedy for breach.

[18] Considering the circumstances of the offence, the guilty plea, all of the mitigating factors listed above and the wishes of the victim, I find that a sentence of 8 months imprisonment would address the sentencing principles discussed above and would be sufficient to specifically deter Mr. West and to deter others like-minded when combined with the other aspects of sentence. That custodial period will be followed by two years probation and a 3 year driving prohibition.

Sentence

[19] Mr. West will be sentenced to 8 months in jail.

[20] The jail term will be followed by a period of probation for two years on the following terms:

• Keep the peace and be of good behaviour
• Report to probation as required by your probation officer
• Not occupy the driver's seat of any motor vehicle
• Not operate any motor vehicle
• Continue alcohol abuse relapse prevention counselling or other alcohol counselling as directed by probation
• Sign any releases necessary for your probation officer to monitor your counselling
• Within the first 18 months, perform 8 lectures at a high school, speaking to a class or assembly each time about the consequences of drinking and driving using your own case as an example for not less than 45 minutes. The teacher shall be provided with a copy of these reasons prior to your attendance. Each lecture shall be at a different high school. Your probation officer shall approve each lecture in advance and shall confirm your compliance with each school you've attended.

[21] Mr. West will be prohibited from operating a motor vehicle for a period of three years.

Delivered 17 June, 2016

Justice Joseph F. Kenkel