Court File and Parties

Ontario Court of Justice

Date: October 16, 2020

Court File No.: Ottawa 18-R1894

Between:

Her Majesty the Queen

— AND —

Alain Joseph Boily

Before: Justice Robert Wadden

Submissions heard on: February 10 & 12, 2020

Reasons released on: October 16, 2020

Counsel

John Ramsay — counsel for the Crown

Elena Davies — counsel for the defendant

Sentence

WADDEN J.:

Introduction

[1] On the night of December 16, 2017, Alain Boily was driving his pickup truck on a stretch of two lane highway east of Ottawa. He had been drinking, he was speeding and he was passing where it was prohibited. His truck struck a car head-on, killing the driver. Mr. Boily was arrested and charged with numerous offences arising out the crash. In September 2019, he pleaded guilty before me to Criminal Negligence Causing Death, contrary to s. 220 of the Criminal Code. Sentencing was adjourned to allow for the preparation of a pre-sentence report and victim impact statements, and the filing of material by the Crown and defence. Submissions on sentence were made in February of this year, and the release of this decision was delayed by the Covid-19 pandemic and state of emergency.

[2] Both Crown and defence are in agreement that a penitentiary sentence is required in this case. The Crown seeks a sentence of five years incarceration, while counsel for Mr. Boily seeks a sentence of three and a half years in jail. There is disagreement as to whether I have the statutory authority to impose a driving prohibition – the Crown takes the position I do, and seeks a driving prohibition for 12 years. Counsel for Mr. Boily takes the position that a driving prohibition under the Criminal Code is not available and cannot be imposed.

[3] For the reasons set out below, I have decided that the appropriate jail sentence for Mr. Boily is five years imprisonment. I have also decided that I have the authority to impose a driving prohibition, and that the appropriate length of that prohibition is for the equivalent of six years.

Facts of the Offence

[4] The facts of this offence are set out in an Agreed Statement of Facts, that was filed as an exhibit. Mr. Boily acknowledged that those facts are accurate.

[5] On December 16, 2017, Mr. Boily and his then-girlfriend attended his office Christmas party at a restaurant in downtown Ottawa. He drove there in his Dodge Ram pickup truck. Mr. Boily consumed several alcoholic drinks and some wine. He left the restaurant at about 10 p.m., driving in his truck out of downtown, eastbound on Highway 417 towards his home in Curran, Ontario.

[6] Shortly before 10:22 p.m., several callers contacted 911 to report Mr. Boily's truck swerving erratically and crossing lanes multiple times while travelling eastbound on Highway 174 around Place D'Orleans. He was estimated to be driving between 100-120 km/h. One vehicle followed the truck until Trim Road. After Trim Road, the Highway 174 narrows from a divided highway to two lanes, without divider. At this point, multiple drivers reported Mr. Boily's vehicle driving eastbound at high speed and passing in the oncoming lane, in spite of the double yellow line.

[7] Jean-Jacques Lemay was driving alone in his Volvo XC70, westbound on Highway 174, when Mr. Boily entered his lane. Mr. Lemay made an unsuccessful evasive maneuver but was struck head on by Mr. Boily's Dodge Ram. First responders found Mr. Lemay unresponsive at the scene. He died from his injuries later that night.

[8] As a result of the collision, Mr. Boily's truck spun around and came to rest in the westbound lane. Mr. Ryan Christensen was driving behind Mr. Lemay at the time of collision. He had seen Mr. Boily enter the westbound lane in a passing maneuver, leading to the collision. Mr. Christensen ended up striking Mr. Boily's truck, and received injuries, including a concussion.

[9] An analysis of the control modules in Mr. Boily's truck revealed he was travelling at a rate of speed of 153 km/h in the five seconds before collision, braking to 90 km/h immediately before impact. The speed limit on that part of Highway 174 is 90 km/h.

[10] The first person to deal with Mr. Boily at the scene was a paramedic who opened the driver's side door of Mr. Boily's truck and noticed the odour of alcohol. Mr. Boily was able to walk to the ambulance unassisted. When asked, he denied consuming any alcohol that night. He appeared uninjured and declined treatment at the scene. He was taken away for questioning by the police. He told them he was coming from his office Christmas party but denied consuming any alcohol. The officer dealing with him could smell alcohol and administered the roadside screening test, which Mr. Boily failed. An analysis of his blood eventually revealed an estimated blood alcohol concentration at the time of driving of between 68-118 mg of alcohol per 100 ml of blood.

The Victim, Jean-Jacques Lemay

[11] The driver killed in the collision was Jean-Jacques Lemay, a retired police officer who was 71 years old at the time of his death. He had had a distinguished career, having reached the rank of Chief Superintendent of the RCMP and served for four years as the Commissioner for the Bermuda Police Services. He is survived by his wife, his brothers and sisters, his adult children and an extended family including nieces and grandchildren.

Victim Impact Statements

[12] Mr. Lemay's family filed Victim Impact Statements, detailing the loss they have suffered as a result of Mr. Lemay's death. Mr. Lemay's family painted a picture of him as a loving brother and pillar of his family, and a doting father and grandfather, a man who remained busy but was enjoying his retirement after years of meaningful work. He was scheduled, within days, to join his wife overseas for a trip over the holidays. Instead, she learned of his death while she was away and had to come back to deal with his death.

[13] The other driver affected by the crash was Ryan Christensen, who also filed a Victim Impact Statement. As a result of the collision, Mr. Christensen had a concussion, post concussion syndrome and whiplash. He has constant neck pain, sprains and strains of the spine and back pain. He has post traumatic stress disorder, depression and anxiety. He has had to stop working and he and his family have suffered financially.

[14] The victim impact statements paint a poignant picture of Mr. Lemay, and his relationship with his wife, children, grandchildren and his brothers and sisters. Some of the Victim Impact Statements contain comments on what sentence should be imposed on Mr. Boily. I have disregarded those portions of the statements.

Sentencing Principles

[15] The issue before me is to decide the appropriate sentence for Mr. Boily for his conviction for Criminal Negligence causing the death of Mr. Lemay. I have to consider directions on sentencing set out in the Criminal Code and be guided by relevant case law, by decisions made by other judges and by appeal courts that have considered the sentence for this crime.

Relevant Criminal Code Sections

[16] According to s. 718 of the Code, "The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society …". Specific objectives include denunciation and deterrence, rehabilitation of offenders, promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and society. Section 718.2 states that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances.

[17] Mr. Boily has been convicted of Criminal Negligence Causing Death, under s. 220 of the Criminal Code. The maximum penalty is imprisonment for life. There is no minimum penalty.

Relevant Case Law

[18] Courts that have considered this offence have made it clear that principles of general deterrence are paramount. In R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64, the Supreme Court held, at paras. 73 and 74:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, […]

[…] courts from various parts of the country have adhered to the principle that the objectives of deterrence and denunciation must be emphasized in imposing sentences for this type of offence.

[19] In R v Abau-Jabeen, [2019] O.J. 5914, Low J. stated, at para. 30, "Members of the public are entitled to expect that drivers will exercise care and diligence, and it is fitting that where wanton and reckless disregard for the lives and safety of others results in death, the punishment be exemplary as an exhortation to other drivers."

[20] In that decision, His Honour cited R. v. McVeigh, [1985] O.J. 207 (C.A.), in which the Court of Appeal held: "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. … General deterrence in these cases should be the predominant concern …"

[21] I keep in mind as well, though, that even for offences where the primary sentencing objective is general deterrence, the sentence must be tempered by consideration of the circumstances of the offender and prospects for rehabilitation. As Justice Wagner stated in R. v. Lacasse, at paras. 3 and 4:

3 The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.

4 One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[22] In submissions before me, the Crown relied on numerous authorities in support of his position that a five year sentence would be appropriate, some of which have similar facts and some of which are distinguishable. Among those cited are: R. v. Karafa, [2014] O.J. 3013 (SCJ), in which five years was imposed on a driver with very high blood alcohol readings who caused the death of another person; R. v. Lacasse, in which the Supreme Court upheld a sentence of six and a half years for driving causing the death of two people; R. v. Neilsen, [2019] O.J. 2554, in which an alcohol and drug impaired driver was sentenced to five years after pleading guilty to causing a death; R. v. Tolouei, [2019] O.J. 4550 (OCJ), in which a driver was sentenced to six years after pleading guilty to causing a death; R. v. Gauthier-Carriere, 2019 ONCA 790, in which a five year sentence for an impaired driver causing a death was upheld on appeal; and R. v. Davis-Locke, 2020 ONCJ 13, in which a six year sentence was imposed after a plea of guilty to counts of impaired causing death and bodily harm.

[23] Ms. Davies, for the defence, cited a number of cases in which a sentence in the range she suggests was imposed: R. v. Cassady, [2016] O.J. 5053 (SCJ), a three and a half year sentence; R. v. Morin Leblanc, [2014] O.J. 1782 (SCJ), a three year sentence; R. v. Quatsch, [2016] O.J. 1699 (OCJ), a three and a half year sentence; R. v. Riley, [2014] O.J. 2588 (SCJ), a four year sentence; R. v. Nandlall, [2009] O.J. 3451 (SCJ), a three year sentence; and R. v. Walker, 2014 ONCA 919, in which a three year sentence was endorsed.

[24] In her submissions, Ms. Davies acknowledges that there are numerous cases in which a five year sentence has been imposed, but argues that those cases had aggravating factors that are not present in Mr. Boily's case, and that the sentence of five years sought by the Crown is disproportionate and not in keeping with the principle of parity. She highlights the following cases: R. v. Canavan, [2018] O.J. 6786 (SCJ), in which a driver with a prior impaired conviction and high blood alcohol readings, who did not plead guilty, was sentenced to five and a half years for the death of one person and injury of two others; R. v. Cabral, 2016 ONCJ 525, in which a driver with a prior impaired conviction and high readings was sentenced to five years after pleading guilty to causing the death of one person and the injury of another; R. v. Prosa, 2015 ONSC 5949, in which the driver with very high readings was sentenced, after trial, to five years for causing the death of two people and injury to a third; and R. v. Natsis, [2015] O.J. 7347 (OCJ), in which the driver was sentenced, after trial, to five years for causing the death of another person in a head-on collision.

[25] Over the years, the Ontario Court of Appeal has provided guidance as to the appropriate sentencing range for offences of this nature. In R. v. Linden, [2000] O.J. 2789 (C.A.), the Court of Appeal upheld a sentence of five years on a driver who had been drinking, had a blood alcohol concentration over 80, drove erratically and killed another driver. The Court noted, in para. 7, "… there is no question that cases of this nature have attracted sentences of three to seven years depending upon the particular facts."

[26] Fifteen years later, the Court of Appeal recognized that there was an "… upward trend for sentences involving drunk driving causing death, a trend that corresponds to society's heightened recognition of the need for sentences in these cases that focus on general deterrence and protection of the public." (R. v. Carreira, [2015] O.J. 4867 at para. 26). In that case, the Court upheld a sentence of six years on a driver who had very high readings and who pled guilty to causing the death of the passenger on his motorcycle.

[27] The most recent guidance in this area from the Ontario Court of Appeal is found in R. v. Altiman, 2019 ONCA 511. Mr. Altiman pleaded guilty to two counts of operating a motor vehicle while impaired and causing death, two counts of Criminal Negligence Causing Death contrary to s. 220, two counts of operating a motor vehicle while impaired and causing bodily harm and two counts of Criminal Negligence Causing Bodily Harm. The Court conducted a thorough review of the development of the sentencing law in this area over the past ten years and stated, at para. 70:

This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record. Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years.

[28] It is clear from the context in Altiman that the ranges set out by the Court apply to the offence of Criminal Negligence Causing Death where alcohol was a factor. Determining the appropriate sentence within those ranges depends on an assessment of the factors specific to this case, including the circumstances of the offence as well as the history, character and prospects for rehabilitation for Mr. Boily.

Circumstances of Mr. Boily

[29] A substantial amount of information about Mr. Boily has been put before me, through the thorough Pre-Sentence Report prepared for this matter and letters filed by his counsel. Mr. Boily is 35 years old and is currently in a relationship with a partner who is described as a major source of support for him. He is a father of two children from an earlier relationship; he remains in contact with their mother and has contact with them every weekend. He has a high-school education and has completed training in plumbing. He has worked steadily for most of his adult life, first as a plumber for his father's company and for the last ten years as an iron worker foreman. He is close to his parents and a brother, and sees them regularly. Mr. Boily denied a history of alcohol or drug abuse, but admits to having consumed alcohol on the night of the crash.

[30] It is noted in the PSR that Mr. Boily takes full responsibility for his crime, not seeking to minimize or deny his behaviour. He acknowledged he had been drinking at his office Christmas party, and argued with his then-partner on the way home. This led to him driving aggressively, speeding and passing other vehicles. He expressed remorse for causing the death of Mr. Lemay. He is prepared to face the consequences of his actions.

[31] In addition to a supportive family and partner, Mr. Boily has strong links to the community and is well regarded by those who know him. Numerous letters of support were filed by Mr. Boily, attesting to the high regard his employer, work colleagues, relatives and other members of the community have for him. This support bodes well for his rehabilitation and reintegration into society after his release from prison.

[32] Mr. Boily has a criminal record. In 2006 he was convicted of possession of marijuana for the purposes of trafficking, for which he received a $700 fine and probation; in 2012 he was convicted of possession of a firearm contrary to a prohibition order, for which he received a $350 fine. More significantly, before the crash Mr. Boily had a provincial offences driving record, with convictions for speeding in 2017 and 2011. He had been convicted and received demerit points for speeding four times.

Factors to Consider – Aggravating and Mitigating Factors

[33] In determining a fair and just sentence, I have to consider the aggravating and mitigating factors that are present in this case.

[34] The aggravating factors are clear. Jean-Jacques Lemay was killed. He was a man who was loved by his wife, his grown children, his grandchildren and his large family. The tragedy is not restricted to his death – it is magnified by the impact on those around him, as set out in the victim impact statements. The injuries to Mr. Christensen, though not fatal, were also significant, as he described in his victim impact statement.

[35] There are numerous circumstances of the offence that stand out as additional aggravating factors. Mr. Boily had been drinking, and had a significant amount of alcohol in his system. The very high speed at which he was travelling – 153 km/h in a 90 zone – is aggravating, especially considering where the final collision took place, on a roadway where Mr. Boily had just entered a rural highway from a divided urban highway. Prior to leaving the divided highway, Mr. Boily's driving was so dangerous for such a long distance that it drew the attention of witnesses who felt compelled to call the police.

[36] Mr. Boily's provincial offences record for speeding is serious. It is aggravating that he was not deterred by being caught and fined for speeding in the past. As noted by the Court of Appeal in Altiman, a prior record for Highway Traffic Act offences is a significant aggravating factor that increases the appropriate range of sentence by a number of years. The Supreme Court has also found this to be a significant aggravating factor, as held in R. v. Lacasse, at para. 80, in which it was noted that Mr. Lacasse "… had been convicted three times for speeding. This showed that he was irresponsible when behind the wheel, and his convictions under the Highway Safety Code were all the more relevant given that speeding had played a part in the accident in this case."

[37] There are also numerous mitigating factors that temper what could otherwise be a more severe sentence for Mr. Boily.

[38] Mr. Boily's level of support from his family and within the community at large is a significant mitigating factor, and provides some assurance to me that he has a good chance for rehabilitation upon completion of his sentence. Mr. Boily is a relatively young man, who has a long history of hard work and contributing to society. He is in a stable relationship, has children from a prior relationship and is close to his family. All of these factors bode well for Mr. Boily's rehabilitation and his eventual return to being a contributing member of society.

[39] Mr. Boily's plea of guilty and genuine expressions of remorse are also significant mitigating factors. He expressed remorse soon after his arrest, and again during the preparation of the Pre-Sentence Report and in his statements in this court, in which he spoke directly to Mr. Lemay's family. He has pleaded guilty, which is significant – it is a public acknowledgment of the wrongfulness of his actions. In doing so, he saved society the time and expense of a trial, and provided closure by removing the uncertainty of the outcome of this proceeding. I note, however, that his plea of guilty came at a late opportunity – virtually on the eve of trial, almost two years after the offence. Although I give weight to his plea as a mitigating factor, I take into account the direction of the Supreme Court in R. v. Lacasse, at para. 81, that "[a] plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly."

Analysis

[40] Having enumerated the relevant factors in this case, it remains to be determined the fair and just sentence to impose.

[41] The sentence of five years sought by the Crown is in the middle of the range recently set by the Court of Appeal for an offender in these circumstances who has no criminal record or driving offence record. Given that Mr. Boily has a driving record for speeding, with three offences in 2017, the five years sought is a fair position that takes into consideration the mitigating factors in Mr. Boily's favour.

[42] In reviewing the decisions cited, it seems that the facts of Mr. Boily's case are not much different from those in R v Lacasse – an offender with no criminal record, but three prior driving convictions for speeding and a crash caused by the combination of consumption of alcohol and high speed. The differences in Lacasse were that there was also consumption of marijuana and that two people were killed. Mr. Lacasse was sentenced to six and a half years, which was upheld by the Supreme Court.

[43] I believe that a sentence of five years would be a fair and just punishment for Mr. Boily. It recognizes the seriousness of his crime and society's denunciation of it but also takes into account the positive factors about Mr. Boily. It is a significant penitentiary sentence that is warranted in the circumstances but is not so long as to be crushing of his chances for rehabilitation. Mr. Boily seems likely to be a good candidate for parole, and I would expect him to perform well in reintegrating into society, with the support of his family and community.

Driving Prohibition

[44] Turning to the issue of the driving prohibition, Mr. Boily's counsel takes the position that as a result of change of legislation between the time he was charged and the time he pled guilty, a driving prohibition cannot be imposed on Mr. Boily for the charge for which he was convicted. The argument is that although s. 259 of the Criminal Code had explicitly provided that an offender convicted of Criminal Negligence Causing Death was subject to a discretionary driving prohibition, that section was repealed in 2018 and the new section in place, s. 320.24(4) of the Code, does not provide for a driving prohibition for the offence of Criminal Negligence Causing Death. The defence takes the position that there is no longer statutory authority to impose a driving prohibition on Mr. Boily.

[45] I am not persuaded by this argument.

[46] This issue was decided in the Superior Court decision of R v Abau-Jabeen. The reasoning in that case is that while not all offences of Criminal Negligence involve the use of a motor vehicle, where the offence was committed by the use of a motor vehicle the offender by necessity also committed the lesser offence of dangerous operation of a motor vehicle. Dangerous operation, which is now s. 320.13 of the Code, remains an offence for which a driving prohibition may be imposed. As Justice Low stated, at para. 61:

In short, there cannot be a conviction under s. 220 in respect of criminal negligence causing death by means of operation of automobile without a finding of guilt of dangerous operation of a conveyance. Because a finding of guilt of dangerous driving is necessarily imbedded in the conviction under s. 220, the court's power to impose a driving prohibition is, in my view, undisturbed by s. 320.24(4).

[47] I agree, and I find that I have the authority to impose a driving prohibition on Mr. Boily.

[48] The length of the driving prohibition must reflect the gravity of Mr. Boily's offence and act as a deterrent, but should not be so long as to be crippling of his prospects for rehabilitation. As I have said, I would expect Mr. Boily to become a productive member of society again after release from prison. In order to hold meaningful employment and participate in the care of his children he will benefit from being able to drive again in the future. I am confident that his risk to the public will be mitigated by his remorse for the consequences of his actions and the punishment he is receiving for this offence. The length of the driving prohibition should not be so long as to prevent him from reintegrating into society. The prohibition will start after completion of the five year jail sentence. A driving prohibition of six years would be appropriate and send the necessary message of general deterrence. In accordance with the direction of the Supreme Court in R v Lacasse, I must deduct from that the time Mr. Boily was under condition of release to not drive, a period of 34 months. The driving prohibition will therefore be for a period of three years, two months, or 38 months, to commence after completion of his jail sentence.

Ancillary Orders

[49] The Crown seeks an order that a sample of DNA be taken for the DNA Databank. Criminal Negligence Causing Death is a secondary designated offence, so the order is discretionary. Given the seriousness of this offence, the usefulness of DNA in investigation of crimes, and the minimal intrusion it would have on Mr. Boily, I agree it would be an appropriate case for the granting of this order.

[50] The Crown has asked I impose a firearms prohibition order. The Crown argues that this is a mandatory order under s. 109 of the Code. Section 109 provides that an order is mandatory where an offender is convicted of an offence in which "violence against a person was used, threatened or attempted" and for which the offender may be sentenced to ten years or more. The Crown argues that driving a truck at high speed in these circumstances constitutes the use of violence. Despite the tragic consequences in this case, I disagree with the Crown's interpretation. Section 109 deals with the intent of an offence, not its consequences. Had Parliament intended the section to apply to offences in which death or bodily harm resulted, they could have written that into the section. My conclusion is that s. 109 does not apply to the offence of Criminal Negligence Causing Death, and a firearms prohibition order is not mandatory. I do not find that is necessary or appropriate to impose a discretionary prohibition order under s. 110, in that a weapons prohibition would be entirely unrelated to the circumstances of this offence and would not achieve any objective of general or specific deterrence or rehabilitation of the offender. The request for that order is denied.

Conclusion

[51] In summary, Mr. Boily is sentenced to five (5) years incarceration for the offence of Criminal Negligence Causing Death, under s. 220 of the Criminal Code. He is prohibited from operating a motor vehicle or any conveyance as defined by the Criminal Code for a period of 38 months, pursuant to s. 320.24 of the Criminal Code. An order for the taking of a DNA sample is granted.

Released: October 16, 2020

Digitally signed by Justice Robert Wadden