Court File and Parties
Court File No.: 16-1296 Orangeville Date: May 31, 2018 Ontario Court of Justice Central West Region
Between: Her Majesty the Queen — and — David Courneya
Before: Justice Richard H.K. Schwarzl
Sentencing Submissions Heard on: May 4 and 11, 2018 Reasons Released on: May 31, 2018
Counsel:
- Ms. Marie Balogh, for the Crown
- Mr. Michael Caroline, for the Accused
SCHWARZL, J.:
1.0: INTRODUCTION
[1.] In 1985, when David Courneya was a young boy, the Ontario Court of Appeal issued its decision in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.), which concerned itself with the sentence in a case of impaired driving causing death. In its reasons, the Court stated "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."
[2.] In 1990, Mr. Justice Cory of the Supreme Court of Canada noted that "the statistics paint a depressing picture of the killing and maiming that results from the operation of motor vehicles on the streets and highways of the nation" by drunk drivers: R. v. Ladouceur (1990), 56 C.C.C. (3d) 22.
[3.] Five years later, Mr. Justice Cory again addressed the public scourge of drunk driving. In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at pages 204-205, His Honour 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…. [Statistics showing thousands of deaths and hundreds of thousands of injuries] are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones."
[4.] The statements made by the highest courts of the land starting thirty years ago marked a clear judicial condemnation of drunk driving. Every year since then these same courts have continued to denounce the absurdly high cost in property, life, and limb that drunk drivers continue to extract from innocent people. For me to catalog a complete list of the judgments that continue to remind us all of the dangers of impaired driving would fill sheaves of paper. Many major and recent cases were filed at this sentencing hearing.
[5.] David Courneya has, by his intoxicated and illegal actions, compelled the victim, his family, and our entire community to pay the price because he ignored not only a lifetime of constant censure of drunk driving by the courts, but also years of education about the public cancer that is drunk driving. For his crime, both parties have jointly submitted that a penitentiary sentence of 4.5 years is warranted. For the following reasons, I agree with that joint submission.
2.0: CIRCUMSTANCES OF THE OFFENCE
[6.] In the early afternoon of Saturday, November 19, 2016 David Courneya decided to drive south from his home in Orangeville on Highway 10 to buy products for his fish pond. Before driving, the offender was tired from getting up early and he also consumed alcohol. This combination caused his driving to be atrocious. Over a significant span of time and distance he was seen by other motorists. They witnessed him swerving, driving in the turning lane without turning, driving aggressively and passing many cars, and then drifting into the oncoming north lanes of traffic. When he entered the northbound lane, he narrowly missed two cars before colliding head on with the car operated by Mr. Morrissey without ever slowing down or trying to avoid striking the victim's car. Mr. Morrissey, who was 56 years old, had no chance and was killed instantly by the sudden, massive, and powerful impact. The offender's car ricocheted into the opposite ditch and came to a stop. Weather, traffic, and road conditions played no role in the collision.
[7.] Emergency services arrived quickly. They noticed that the offender had a small cut to his forehead. Although the offender told ambulance personnel he was unharmed, his gait was unsteady, his eyes were red, his speech seemed slow or even slurred, he appeared "cotton-mouthed" when he spoke, and his breath smelled of alcohol. At the scene the offender admitted to having "a couple of drinks". He was taken to the hospital for an assessment by a doctor. After his cut was sutured, the offender was subjected to breath testing by a qualified police officer. The results of those tests were later analyzed by a forensic toxicologist who concluded that that when the offender killed Mr. Morrissey his blood alcohol concentration was in the range of 150 to 210 milligrams of alcohol per one hundred millilitres of blood. Far from having just a couple drinks, the offender in fact swallowed enough alcohol to ratchet his blood alcohol levels to twice the legal limit not long after lunch.
[8.] After seven days of trial, the offender entered a plea of guilty to one count of impaired driving causing death contrary to section 255(3) of the Criminal Code of Canada.
3.0: CIRCUMSTANCES OF THE OFFENDER
[9.] At the time of this crime, the offender was 36 years old. He is married and has one child, who was born two months after this offence. The offender has no prior criminal record but has a traffic record with nine prior speeding offences. Together with his brother, he owns and operates a successful private business in Vaughan.
[10.] The offender elected to test the Crown's case before changing his plea to guilty before being called upon to offer a defence. After changing his plea, a sentencing hearing took place over two days. Between those days, the offender was a guest on a Toronto radio talk show. In what may be an unprecedented interview, he spoke about what it means and how it feels to kill somebody while driving drunk. He was candid and uninhibited in accepting complete responsibility for his deeds.
[11.] The offender was given an opportunity to address the Court at the sentencing hearing. With my leave, he spoke directly to the victim's family who had been present for every single day of the proceedings. The offender provided a genuine and earnest apology for his actions. He did not try to excuse his inexcusable conduct. He acknowledged that his crime was no mistake, but was instead a fatal choice. The offender stated that he wished it had been him who had perished, not the innocent Mr. Morrissey. He hoped for, but did not expect, forgiveness.
4.0: AGGRAVATING AND MITIGATING FACTORS
4.1: Mitigating Factors
[12.] There are a number of mitigating factors present in this case. They include the following:
- (a) The lack of any prior criminal record;
- (b) The plea of guilty, although its value as a mitigating factor is diluted by its very late timing;
- (c) The sincere and intense contrition of the offender expressed not only in court but also publically on the radio;
- (d) The offender has strong family support which was shown during the proceedings including their statements to me of the offender's good character and their statements to the victim's family that David Courneya's crime is also their disgrace and burden to bear; and
- (e) The apparently low risk of him reoffending.
4.2: Aggravating Factors
[13.] There are also a number of aggravating factors present in this case. They include:
- (a) The dangerous driving of the offender on a provincial highway that put many other drivers and passengers in jeopardy over an extended time and distance;
- (b) The very high blood alcohol concentration of the offender at the time of the offence;
- (c) The fatal combination of alcohol and fatigue;
- (d) The poignant and heartbreaking impact of this crime on the victim's family; and
- (e) That drunk driving is a particular problem in Dufferin County and North Peel. These offences occur in this locale at a rate twice that of the rest of our judicial region and two and half times greater than the provincial average. Local conditions require more severe sentences than elsewhere to cope with the problem.
5.0: THE SENTENCE
[1.] Earlier, I referred to the decades' long and uninterrupted reprobation by the courts of the social toll of drunk driving. While it is true that in recent years alcohol related driving fatalities and injuries are on the decline overall, that is no comfort to anybody until those numbers fall to zero. The impact on the Morrissey family can be described in one word: devastating. Their loss is profound and irreversible. The impact of this crime on the Accused is a permanent stain on him and his family, all of whom have taken on and shared the stigma and shame of the offender's criminal recklessness. There is no doubt that this crime was a catastrophic event of sweeping proportions that has, and will continue to, cause disruption and pain to ripple through the lives of everyone connected with it for years to come.
[2.] Section 222(5)(a) of the Criminal Code of Canada states that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. It is clear that this offender has committed culpable homicide. Mr. Morrissey's death is the random, tragic and direct consequence of the offender's unlawful act of impaired driving.
[3.] Drunk driving injuries and deaths are utterly avoidable and because of this, when they happen we all experience frustration and agony to the point of desperation. We collectively ask, who could do such a thing knowing all that we know about how dangerous it is? The truth is that drunk drivers are most often people exactly like Mr. Courneya: good family men and women who work hard and are otherwise decent citizens. It was entirely predictable by the offender that his voluntary consumption of alcohol could rob him of his judgment, awareness, and coordination. I am confident that had the offender been aware that he was unfit to drive he surely would not have done so, especially for such a trivial reason as going to a pet store. All drunk drivers are potential killers. Lamentably David Courneya actualized the risk of death created by every single drunk driver.
[4.] The case authorities cited by both counsel make it clear that denunciation and general deterrence are the paramount considerations in sentencing drunk driving cases. Rehabilitation and specific deterrence are therefore relegated, but not dismissed as sentencing considerations. In this case, there is no suggestion that rehabilitation or specific deterrence need be addressed because this offender does not have any issues that need rehabilitating nor would any sentence I impose be more deterring than the prison of his own conscience.
[5.] Both counsel have reminded me that in a case like this, the appropriate range of sentence is 2.5 to 10 years. They have also emphasized that sentencing is not an arithmetic or mechanical process. Sentences must be crafted to address the multitude of elements unique to every case. In this case, there is a blend of aggravating and mitigating factors to which I have already described.
[6.] Taking everything about this case into account, I believe that the joint submission of 4.5 years in the penitentiary achieves the primary focus of denunciation and general deterrence while also respecting all the other relevant sentencing considerations. In addition to the term of incarceration, I make the following ancillary orders:
- (a) An in-custody, primary DNA Order;
- (b) A section 109 Criminal Code of Canada Firearms Prohibition for ten years on any restricted items and life on all prohibited ones;
- (c) A Victim Surcharge of $200.00 payable in 60 days; and
- (d) A driving prohibition for 8.5 years from today.
[7.] Everyone touched by this crime has been injured in some way. The fabric of society has been torn by this senseless crime. However, it is my fervent hope that out of this tragedy some good may come. Perhaps those impacted by what happened can help alter attitudes about drunk driving for the better. Perhaps the offender himself will continue his efforts to help prevent others from doing what he did. Perhaps people can try to influence insurance companies, auto manufacturers, and law makers to deploy in-car technologies that make it harder to start or operate a car while intoxicated. If any or all of these things are attempted or achieved then Mr. Morrissey's untimely passing may not have been in vain.
Richard H.K. Schwarzl Justice of the Ontario Court of Justice