Court File and Parties

Ontario Court of Justice

Date: 2016-11-28

Court File No.: Halton 14-2887

Between:

Her Majesty the Queen

— and —

Jessica Pupo

Before: Justice D.A. Harris

Heard on: February 2, 2016 & September 20, 2016

Reasons for Sentence released on: November 28, 2016

Counsel:

• Mary Ward, for the Crown
• Stephen Collinson & Kaley Hepburn, for the defendant Jessica Pupo

HARRIS J.:

[1] Guilty Plea and Charge

Jessica Pupo pled guilty to the charge that on September 10, 2014, when her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood, she operated a motor vehicle and caused an accident resulting in bodily harm to Rachel Snyder.

[2] This is an indictable offence.

[3] Ms. Pupo is before me today to be sentenced.

[4] Sentencing Submissions

[4] Crown counsel suggested that I should sentence her to imprisonment for nine to 12 months followed by probation for two years. She asked that I prohibit her from driving for two years. Finally she requested a DNA order.

[5] Counsel for Ms. Pupo suggested that I impose a sentence of imprisonment for 90 days to be served intermittently. She agreed with Crown counsel's position on probation, the driving prohibition and the DNA order.

[6] I find that a sentence of imprisonment for six months is the appropriate sentence. That should be followed by a driving prohibition for two years.

[7] My reasons for this are set out under the following headings:

1. The fundamental purpose and principles of sentencing
2. The facts underlying the offence
3. The impact on the victim
4. The background of Ms. Pupo
5. Analysis

Fundamental Purpose and Principles of Sentencing

[8] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[9] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[10] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[11] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[12] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[13] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[14] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[17] I must also consider the impact of section 718.2(e) which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[18] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[19] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

Drinking and Driving Jurisprudence

[20] I also note the comments of the courts regarding drinking and driving offences.

[21] As far back as 1985, the Ontario Court of Appeal stated in R. v. McVeigh that:

In my view the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[22] Ten years later, in the Supreme Court of Canada decision in R. v. Bernshaw, Cory J. stated that:

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.

[23] In R. v. Biancofiore, Rosenberg J.A. of the Ontario Court of Appeal wrote that courts must take care not to de-stigmatize drinking and driving offences. Denunciation through incarceration would generally have this effect and would guard against law-abiding people regarding such behaviour as a mere "accident" or "error in judgment", rather than the criminal act it was.

[24] Other decisions include a number of cases where death was involved. While the length of sentences imposed in those cases is very different from the sentences imposed where bodily harm occurred, the underlying principles are the same.

[25] A very helpful summary of these principles is set out in the recent reasons for sentence given by Justice Fuerst in R. v. Muzzo, where she wrote:

In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

[26] In other cases, the Ontario Court of Appeal has concluded that, because the offence of impaired driving causing death can be committed in an almost infinite variety of circumstances, there is no identifiable range of sentence that applies to the crime.

[27] That is borne out in the cases provided to me by counsel. In those decisions and in the further cases cited in them, the sentences ranged from non-custodial to upper reformatory. Most of these sentences were between 3 and 18 months in length.

[28] The Supreme Court of Canada has recently cautioned that even where sentencing ranges are identified, they are guidelines and not hard and fast rules.

[29] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victim, and the background of Ms. Pupo.

The Offence

[30] On September 10, 2014, Ms. Pupo and Rachel Snyder were drinking at Solid Gold, a bar in Burlington. They left in a car. Ms. Pupo was driving. Ms. Snyder was a passenger.

[31] At some point, Ms. Snyder told Ms. Pupo to keep her eyes on the road. While driving along Townsend Drive, Ms. Pupo drove into a ditch and continued another 15 feet before the car hit a culvert and flipped over.

[32] Both women suffered bodily harm.

[33] Ms. Snyder suffered a fractured pelvis which required surgery. She also suffered a dislocated knee. More will be said about these injuries later.

[34] Ms. Pupo suffered a fractured vertebra. She was taken to Joseph Brant Memorial Hospital. Her injuries were such that she could not provide a breath sample for analysis. Instead, blood was drawn. This was later analyzed and showed that Ms. Pupo's blood alcohol concentration at the time of the collision was 129 milligrams of alcohol in 100 millilitres of blood. There were also drugs, including amphetamine and methamphetamine in her system.

[35] The toxicology report states that "Methamphetamine is a central nervous system stimulant primarily used as a drug of abuse. Effects that occur after use of methamphetamine may include excitation, euphoria and increased risk taking behaviour. Amphetamine is a drug that can be administered as a drug in and of itself, or can arise as a pharmacologically active metabolite of methamphetamine".

[36] Ms. Pupo's ability to operate a motor vehicle was impaired by these drugs and by the alcohol. This contributed to the motor vehicle collision which caused the bodily harm to Rachel Snyder.

Victim Impact

[37] I was provided with a Victim Impact Statement prepared by Ms. Snyder. In addition, she was interviewed during preparation of the Pre-Sentence Report. These documents provided me with the following information.

[38] Ms. Snyder spent nine days at Hamilton General Hospital recovering from her surgery. Her injuries included a fractured pelvis and a dislocated left knee. Her surgery required 13 pins and screws and four plates as well as a metal pole which was put through her knee. She had roughly 75 staples in her side.

[39] She did not bear weight or walk for almost six months and was unable to bend her knee for three months.

[40] As she was unable to take care of herself, she moved back into her mother's house at the age of 23. Her mother and brother took care of her to the best of their abilities while still working at their jobs.

[41] Physiotherapy took a very long time and was very painful.

[42] She was off work for 11 months.

[43] Ms. Pupo had no insurance on her vehicle and Ms. Snyder had to fight to obtain accident benefits and income replacement coverage. The income replacement benefits took nearly a year to get approved and she was forced to go on social assistance in the meantime. Once approved, the income replacement benefits failed to replace her previous income. She received much less than she would have made if she was still working as a server/bartender. As it is, this money will run out before she is ready to work full time. She cannot stand or sit for long periods of time. Finding suitable employment has been very difficult.

[44] She does not have drug coverage and her pain medication was extremely expensive.

[45] She is unable to participate in sports or other physical activities that she was active in before.

[46] She has a very large unattractive scar on the side of her leg which is a constant reminder.

[47] She will have to get surgery once or twice more on her left hip and inevitably have to have a hip replacement on her right hip as it is compensating for two hips now.

[48] She states that she is 25 years old but most days feels older than 70. She is very depressed.

Background of Ms. Pupo

[49] I was provided with a Pre-Sentence Report as well as three reference letters and a written apology from Ms. Pupo to Ms. Snyder. From these sources, I have learned the following.

[50] Ms. Pupo is now 33 years of age.

[51] She was born in Etobicoke. She has one sister two years her senior. She lived with her parents and sister for the first five years of her life in Woodbridge until her parents separated. Her mother obtained primary custody and relocated Ms. Pupo and her sister to Peel Region for approximately two years before they settled in Burlington. She had visits with her father every second weekend between the ages of five and 14. She discontinued attending her father's residence by age fourteen because it was "boring" and when she stayed at her mother's house, there were "never any rules."

[52] Her mother struggled to pay the bills and they lost their residence when Ms. Pupo was 14. She moved in with a friend's family for a month and then resided with her mother's friend for six months. She and her mother were then housed in two hotels in Burlington for 11 months.

[53] According to Ms. Pupo, her childhood was difficult. Her parents divorced as a result of her mother's struggles with mental health issues and alcohol abuse. Her father was "very judgemental" who lacked compassion for her mother's struggles. There continued to be tension between her parents for many years and only recently have they started to communicate effectively with one another.

[54] She and her sister "hated each other" growing up and maintained a distant relationship. They see each other about four times per year only on special occasions.

[55] On the other hand, her relationship with her parents was always good and she was rarely disciplined as a child because she was an obedient and respectful child and teenager. She currently speaks with her mother once per month and her father once per week. At present, her father assists her financially, supplying groceries and providing transportation to and from appointments.

[56] She has alluded to some trauma in her childhood, however, she has refused to discuss the details of any such past abuse.

[57] At age 17, she gave birth to her daughter and moved in with her boyfriend. The couple stayed together for two more years after their child was born. Despite their break-up, the father of her daughter is still actively involved in their daughter's life and he currently resides in Burlington.

[58] Ms. Pupo then remained single for several years before she began dating another partner in 2009. She was involved with him for four years before they decided to cohabit. After four months of living together, she learned that he was also involved in another relationship.

[59] She says that they were both intoxicated one evening in February 2014 and a physical altercation ensued whereby he was charged with domestic violence against her. Following a trial, he was acquitted in April 2015. Their relationship ended as a result of the physical altercation and her boyfriend had moved out.

[60] At this point her mental health began to deteriorate. She was unable to keep up with the bill payments on her residence alone and was ultimately evicted in August 2015. During that time, her daughter was sent to live with her biological father.

[61] She was homeless for three months until she secured a residence in Burlington in December 2015. She still lives there and shares custody with her daughter's father. Her daughter is now 16 years old and lives with Ms. Pupo.

Education and Employment

[62] She was an average student throughout her elementary and secondary schooling. In her first semester of grade eleven, she became pregnant so she left her regular high school setting and attended correspondence instead through an adult learning centre. She was unable to complete her diploma since she had a young child. Instead, she obtained her secondary school equivalent in 2007.

[63] After high school, she worked primarily in the restaurant industry. She worked at a number of restaurants for about eight years before she decided to return to school. She earned her GED during the time that she was working in restaurants and enrolled in a career training college in 2011. After eight months, she obtained a certificate in Banking & Financial Services as well as Mutual Funds, but her licence has now expired along with her Mutual Funds certificate.

[64] After finishing the program, she obtained employment as a customer contact agent from December 2012 with a banking and financial services group. In November 2013, she took a "medical tool kit" offered to her and only worked part time. In February 2014, she took a short term sick leave following the alleged domestic assault. After the current offence, she applied for a long term disability leave through her employer, but she was denied. She has hired a lawyer in September 2015 to appeal this decision. In the meantime, she has been supported by social assistance and currently receives ODSP benefits.

[65] She has been struggling financially throughout her adulthood. In 2006, she filed for bankruptcy. She presently has many debts including fine payments, Ontario Student Assistance Program for her college, and back payments on her hydro and utility bills. She currently receives $1400 per month with her cost of rent being $850 per month and the remainder of her income going to bills. She relies on her father to purchase the groceries for her household.

Substance Use and Mental Health

[66] She began drinking alcohol at an early age by consuming wine with dinner as early as she can remember. When she turned 13, she started drinking alcohol with friends excessively on weekends until she became pregnant at 17 years old. She did not drink alcohol again until her daughter was four years old. She has admitted to problematic drinking patterns in her past indicating that working in restaurants often promoted alcohol use. Her partner expressed his concern to her regarding her alcohol abuse and had suggested that they both stop drinking excessively. She then began to reduce her level of alcohol intake. She has never attended for any treatment or counselling to address her alcohol use.

[67] She currently consumes very little alcohol estimating that she drinks alcohol about once per month but she would be drinking more if she had money to purchase the alcohol.

[68] She denies any use of illicit drugs both presently and in her past. This however is contradicted by both Ms. Snyder and by the results of her blood tests which showed that she had used both amphetamine and methamphetamine. It is also contradicted by the comment of her psychiatrist that she also meets the criteria for Borderline Personality Disorder and Polysubstance Use Disorder which is self-reported to be in remission at the current time.

[69] When asked if she felt that she would benefit from treatment or counselling for substance use, she indicated that she did not feel that she has a problem with substances and has difficulty maintaining appointments so it would be a struggle for her. She indicated that her doctor gave her resources to connect with a counsellor, but she does not want to overwhelm herself with too many appointments and currently would like to focus on addressing her mental health with her psychiatrist.

[70] Since making those statements however, she did begin to see an addictions counsellor weekly.

[71] Her mother first took her to a psychiatrist around the age of 8 when she became withdrawn and depressed. She continued to struggle with symptoms of depression over the years. After the offence, she requested a referral to a psychiatrist who she began meeting with in January 2016. He is treating her for depression and anxiety. She is prescribed medication for this. As stated above, she also meets the criteria for Borderline Personality Disorder and Polysubstance Use Disorder which is self-reported to be in remission at the current time.

[72] She says that she has contemplated suicide various times over the years including following the offence. She has not followed through with this because she wishes to be there for her daughter.

[73] She also says that although she was also physically injured in the collision, she has not returned to see the specialist concerning her tailbone injury because she did not agree with his recommendations.

[74] She was seriously injured in the collision. She had a broken L1 vertebra and a shattered tail bone. These injuries necessitated months of rehabilitation and recovery.

[75] Her father and two friends wrote positive reference letters on her behalf. They stress the positive things that she has done in her life. They note as well the problems that she encountered and how these have led her to a state of depression. They all stress that she is now addressing that depression and its underlying causes.

[76] Ms. Pupo wrote the following apology letter to Ms. Snyder:

Rachel, I apologize for the physical and mental damage that you suffered from our accident. It was never my intent to harm us in any way. Our friendship was valuable to me. I enjoyed the time we spent together even though it was short. I wish it didn't end so abruptly, it was just getting started. I know we spoke on the phone when both of us were in the hospital, but I want to make sure you know I was telling the truth when I said that I wished I could be there for you in the hospital and at home. I suffered emotionally that you were physically hurt and that I affected your life in a negative way. I know that forgiveness is easier said than done, but I hope somewhere down the road we can amend our friendship. Please accept my sincerest apology for the damage that was caused to you and your family. It was never my intent for you to be hurt in any way. Sincerely, Jennifer Pupo.

[77] In court, when asked if she had anything to say before being sentenced, she said "I am truly sorry".

Analysis

[78] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy.

[79] That is certainly the case here. Adding to my difficulty is the realization that whatever sentence I impose, at least one side and possibly both will be disappointed. The friends and families of Rachel Snyder may see the sentence as being too lenient while the friends and family of Jessica Pupo may see it as being too harsh.

[80] Further, no sentence can adequately put a value on someone's serious injuries. It certainly cannot undo the harm done to Ms. Snyder.

[81] Finally, as Justice Fuerst stated in R. v. Muzzo, supra:

Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada, "a highly individualized exercise that goes beyond a purely mathematical calculation." The gravity of the offence, the offender's degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.

Sentencing Principles

[82] The sentencing principles of denunciation and deterrence are paramount here. Years of public education programs and previous decisions by the court failed to bring home to Ms. Pupo the message that we, as a society, will not tolerate drinking and driving. The sentence that I impose must make that message clear to her and to anyone else who might even consider committing such an offence in the future.

[83] I must not however lose sight of the possibility of rehabilitation.

Aggravating and Mitigating Factors

[84] I have considered both the mitigating and the aggravating factors present.

Aggravating Factors

[85] The aggravating factors arise out of the offence itself.

[86] Ms. Pupo chose to drink and then to drive. She did not have to drink that night. Having done so, she could, and should have found some alternative to driving. Instead, she chose to drive.

[87] Her blood alcohol concentration at the time was 129 milligrams of alcohol in 100 millilitres of blood. That alone was enough to impair her ability to operate a motor vehicle. The drugs that she had taken made that even worse.

[88] Finally, the impact on Ms. Snyder has been devastating. She has yet to recover fully from her injuries. She will need years to get over this, if she ever does.

Mitigating Factors

[89] There are also a number of mitigating factors here.

[90] Ms. Pupo pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for Ms. Snyder to relive the events of that night while testifying in court.

[91] Ms. Pupo has expressed remorse and written a letter of apology.

[92] She has commenced substance abuse counselling since being charged. I am not convinced that she is fully committed to this but she has taken the initial steps. She is also seeing a psychiatrist to address her depression.

[93] She had no prior criminal record and this will be her first sentence of imprisonment.

[94] She is otherwise a person of good character.

[95] She too was seriously injured in the collision. She had a broken L1 vertebra and a shattered tail bone. These injuries necessitated months of rehabilitation and recovery.

[96] Finally, I note that both counsel agree, as do I, that a jail term is appropriate here. The only issue is the length of the jail term and whether it should be served on an intermittent basis.

Conclusion on Sentence

[97] After taking all of these factors into account, I find that the appropriate sentence is imprisonment for six months.

[98] In light of the nature of her driving, it is also appropriate for me to prohibit her from driving for two years following that.

Sentence

[99] I sentence Ms. Pupo to imprisonment for six months.

[100] That will be followed by probation for two years.

[101] The terms of the probation will require that Ms. Pupo:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. Report in person to a probation officer within two working days of her release and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in her supervision;

5. Co-operate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;

6. Not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Rachel Snyder;

7. Not be within 20 metres of any place where she knows her to live, work, go to school, frequent, or any place she knows her to be;

8. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, for:

   • i. Substance abuse
   • ii. Alcohol abuse
   • iii. Psychiatric or psychological issues
   • iv. Any other program directed by her probation officer.

Ancillary Orders

[102] I also make the following ancillary orders.

[103] Ms. Pupo is prohibited from operating a motor vehicle on any street, road or highway for a period of two years.

[104] This is a secondary generic offence and I am satisfied that it is appropriate to make an order pursuant to s.487.051 of the Criminal Code, authorizing the taking from Ms. Pupo of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[105] Finally, pursuant to section 109 of the Criminal Code, for the next ten years Ms. Pupo is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[106] Ms. Pupo will have six months following her release to pay the victim fine surcharge.

Released: November 28, 2016

Signed: "Justice D.A. Harris"