BARRIE COURT FILE NO.: CR-11-182

DATE: 20130809

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUSTIN MAXWELL

Offender

M. Villamil, for the Crown

J. Rabinovitch, for the Offender

HEARD: July 24, 2013

REASONS ON SENTENCE

DELIVERED ORALLY AUGUST 9, 2013

DiTOMASO J.

OVERVIEW

[1] On March 8, 2009, in the early morning hours, Justin Maxwell was driving his motor vehicle northbound on Highway 400 just south of Highway 12 in the Township of Tay, in the County of Simcoe. Jonathan Leduc-Moreau was Mr. Maxwell’s front-seat passenger. They were travelling to Mr. Leduc-Moreau’s house in Port Severn after a night of entertainment at Casino Rama and bars in downtown Orillia. At those locations, alcohol was consumed by Mr. Maxwell and his friend Mr. Leduc-Moreau.

[2] They never did arrive at Mr. Leduc-Moreau’s house. Mr. Maxwell lost control of his motor vehicle. It left the northbound lanes of Highway 400 and entered the east ditch of the Highway. Upon becoming airborne, Mr. Maxwell’s motor vehicle impacted a hill or embankment and rolled over a number of times before coming to rest in an upright position.

[3] As a result of this collision, both Mr. Maxwell and Mr. Leduc-Moreau were injured with Mr. Leduc-Moreau requiring neck surgery. They were both removed from the scene by ambulance and taken to hospital for treatment. Subsequently, Mr. Maxwell was charged with the following offences:

(i) Impaired operation of a motor vehicle causing bodily harm;

(ii) dangerous operation of a motor vehicle causing bodily harm; and,

(iii) having care and control of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (“over 80”).

[4] After a trial before me which took place on August 20, 21, 22 and 23, 2012, Mr. Maxwell was found guilty of and convicted of the charges of impaired operation of a motor vehicle causing bodily harm and having care and control of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (“over 80”). He was found not guilty and acquitted of dangerous operation of a motor vehicle causing bodily harm. My Reasons for Judgment were delivered orally on October 10, 2012.

[5] A sentence hearing was scheduled for January 2, 2013. Mr. Maxwell failed to attend his sentence hearing. Defence counsel advised the Court that he had received a telephone call from Mr. Maxwell who had indicated to him that Mr. Maxwell would not be attending court as he could not face the prospect of spending time in jail. Mr. Maxwell did not leave any forwarding address. A Bench Warrant was issued on January 2, 2013 for the arrest of Mr. Maxwell. The matter was adjourned to be spoken to on January 7, 2013 at which time a report was received that Mr. Maxwell had not been located. The Bench Warrant remained in place and continues to be in full force and effect.

[6] This matter came before the court on July 24, 2013 for sentence hearing of Mr. Maxwell in absentia. I found Mr. Maxwell deliberately absconded with the intention of avoiding the consequences of sentence pursuant to s.475(1)(b)(i) of the Criminal Code of Canada.

[7] On July 24, 2013 I heard sentence submissions on behalf of the Crown and Mr. Maxwell.

THE FACTS

(a) Circumstances of the Offences

[8] The circumstances of the offences are clearly recited in my Reasons for Judgment delivered orally on October 10, 2012. After consuming alcohol at Casino Rama and two bars in Orillia, Mr. Maxwell operated his motor vehicle in an impaired condition and lost control of it. While driving at high rate of speed on Highway 400 with Mr. Leduc-Moreau as his passenger, Mr. Maxwell’s vehicle went off the highway onto the west shoulder. He over-corrected to bring his vehicle back onto paved Highway 400. As a result of the over-correction, his vehicle veered across the northbound lanes of Highway 400 entering the east ditch of the highway, becoming airborne and thereafter impacting hill. The Maxwell motor vehicle rolled over a number of times before coming to rest in an upright position.

[9] Both Mr. Maxwell and Mr. Leduc-Moreau were injured in this accident. Mr. Leduc-Moreau suffered serious personal injury which required neck surgery. I will have more to say about Mr. Leduc-Moreau’s injuries.

(b) Circumstances of the Offender

[10] Marked as Exhibit 1 on the Sentence Hearing was Mr. Maxwell’s criminal record. His criminal record as a youth and adult can also be found in his Pre-Sentence Report marked Exhibit 2. Both the Crown and defence agree that Mr. Maxwell’s criminal record is accurately set out upon a review of Exhibits 1 and 2 in combination.

[11] Mr. Maxwell’s criminal record is extensive. Mr. Maxwell has spent time in and out of custody both as a young offender and as an adult offender.

[12] Significantly, he has served terms of imprisonment in federal penitentiary on two occasions for convictions of arson in 2002 and robbery in 2006.

[13] His last conviction was July 9, 2007 in Abbottsford, British Columbia for use of credit card and possession of property obtained by crime under $5,000.

[14] Mr. Maxwell’s extensive criminal record is not surprising when one considers the difficult life that he has lead as evidenced by his Pre-Sentence Report. He was physically and mentally abused by his father. He was sexually abused in foster care. He associated with teenage gang members and became involved with drugs at an early age. His youth and adult criminal record illustrates continued and repetitive conflicts with the criminal justice system. His last period of incarceration was especially difficult for Mr. Maxwell with the result that he was determined to change his life. He had taken steps in that direction by finding employment and by trying to upgrade his education.

[15] In 2008, he was hospitalized for eight days after being stabbed repeatedly by his father. He had been law abiding since his release after having served his last sentence. Then in March of 2009 he was involved in this alcohol related motor vehicle collision in which both he and Mr. Leduc-Moreau were seriously injured.

[16] Mr. Maxwell was convicted of “over 80” charge and the charge of impaired operation of a motor vehicle causing bodily harm. He absconded before he was to attend his sentence hearing on January 2, 2013 and has not been heard from since.

(c) Impact on the Victim

(i) Victim Impact Statement

[17] As a result of Mr. Maxwell’s criminal conduct, his friend and victim in this case, Jonathan Leduc-Moreau suffered significant and permanent personal injury. The collision was caused by Mr. Maxwell’s operation of his vehicle when he was impaired by alcohol. It was conceded that Mr. Leduc-Moreau suffered bodily harm resulting from this collision and that Mr. Maxwell was the driver of his motor vehicle at the time of the accident.

[18] The evidence established that Mr. Leduc-Moreau sustained serious and significant injury. He suffered cervical spine fractures which required surgical intervention. He complained of partial paralysis of his vocal chords, injuries to both of his shoulders, pain in his shoulders, back and knees and memory loss. For a time, he suffered from stomach problems after the accident.

[19] Marked as Exhibit 3 is Mr. Leduc-Moreau’s Victim Impact Statement. These offences impacted Mr. Leduc-Moreau and his family greatly. His Victim Impact Statement was a testament to how he suffered emotional loss, physical injury and financial impact all resulting from Mr. Maxwell’s criminal conduct.

[20] Regarding emotional loss, Mr. Leduc-Moreau described how after the collision he began to struggle with depression and anxiety. In his Victim Impact Statement he speaks of chronic pain, memory and emotion regulation issues. His self-worth has been affected and he cannot work in order to take care of his young children and wife. He has to work really hard to try to live a normal life and not be overcome by frustration and depression.

[21] Regarding physical injury, he suffered two fractured vertebrae in his neck. He had to undergo a bone graft from his hip to repair the damage. He underwent two years of physical therapy with no improvement. His voice box was damaged during his surgery with the result that his voice is raspy and he now feels pain in that area. He had sustained a head injury which left him with memory problems and problems with his eyes. He cannot sit or stand comfortably for any significant period of time. He complained of chronic pain and frequent dislocation in his shoulders. He takes medication daily and suffers from stomach problems.

[22] Regarding financial impact, he cannot work anymore and, perhaps, may not be able to work for the rest of his life. He has had to borrow money to pay his bills and he has not been able to afford to obtain the treatment that he requires.

(ii) Mr. Maxwell’s Interview by Pre-Sentence Reporter

[23] As noted, Mr. Maxwell’s Pre-Sentence Report is identified as Exhibit 2 on the Sentence Hearing. Mr. Maxwell was very co-operative with the author of the Report. He declined to make comment with respect to the offences before this court. The Pre-Sentence Report is devoid of any remorse for his conduct or for the serious injuries suffered by Mr. Leduc-Moreau.

LEGAL PARAMETERS

Positions of the Crown and the Defence

The Crown

[24] The Crown takes the position that on the facts of this case and based upon Mr. Maxwell’s convictions, the appropriate sentence should be a four year term of imprisonment, a ten year driving prohibition and a DNA Order. The Crown relies upon the aggravating circumstances surrounding the offences, Mr. Maxwell’s criminal record, the practical absence of mitigating circumstances and legal authorities to support the Crown’s position.

The Defence

[25] Not surprisingly, the defence takes a much different view. It is conceded that Mr. Maxwell’s conduct attracts a sentence which includes incarceration for a period between six to nine months, a driving prohibition in the range of two to three years without a DNA order. It is submitted that the authorities reviewed by the Crown speak to different circumstances than the circumstances of this case before the court. The authorities cited by the Crown range anywhere from five months to four years for custodial sentences in drinking and driving cases with dissimilar factual contexts.

REVIEW OF RELEVANT CASE LAW

[26] The Crown submitted a Sentencing Book of Authorities. The Crown relied upon the following cases:

1. R. v. Dharamdeo, 2000 17018 (ON CA), [2000] O.J. No. 4546 (C.A.)

2. R. v. Dhesi, [2001] O.J. No. 1343 (C.A.)

3. R. v. Bouchard, [2002] O.J. No. 5357 (C.A.)

4. R. v. Prince, [2002] O.J. No. 5228 (S.C.J.)

5. R. v. Hekmati, [2011] O.J. No. 3703 (S.C.J.)

6. R. v. Thompson, [2011] O.J. No. 369 (S.C.J.)

[27] What is noteworthy from these various cases is that drunk driving all too often produces tragic consequences which not only affect the individuals involved but also society at large. The carnage created by impaired drivers continually and repeatedly is the source of pain and grief to many persons which all too often includes family and friends. Sadly, the ripple effect caused by drunk driving is enormous. Those tragic consequences and the carnage are revisited in this case as one more example of the devastation caused by drunk driving.

[28] The cases speak to the need for deterrence and denunciation – including both general deterrence and specific deterrence. The cases speak to custodial sentences as properly promoting general deterrence and denunciation in the context of drinking and driving related offences. See R. v. Dharamdeo, supra, at para. 22.

[29] However, the cases presented by the Crown often dealt with repeat offenders of alcohol and driving related offences. In our case, Mr. Maxwell does not have a conviction for any alcohol or driving related offences. Also, the cases cited by the Crown are so disparate in terms of the range of sentence that those cases are very fact specific and range anywhere from five months to four years imprisonment for various types of drinking and driving offences. The cases cited by the Crown are helpful only in respect of the legal principles.

AGGRAVATING AND MITIGATING FACTORS

(i) Aggravating Factors

[30] An aggravating factor in this case is how Mr. Maxwell came to drive his motor vehicle under the influence of alcohol. The manner in which he drove was consistent with his impairment. He lost control of his motor vehicle. He over-corrected the steering of his motor vehicle that had gone off the road in order to get back on the paved portion of Highway 400. His manoeuvre was disastrous. It resulted in a serious accident in which Mr. Maxwell and his passenger Mr. Leduc-Moreau suffered a number of substantial injuries. I have already cited those serious significant and permanent injuries suffered by Mr. Leduc-Moreau as a result of Mr. Maxwell’s criminal conduct.

[31] Mr. Maxwell has a lengthy criminal record. His youth offender record commences in 1991 and his criminal record ends with an adult conviction on September 27, 2006 for robbery. He has been in and out of custody and he is no stranger to the criminal justice system. However, he does not have any convictions for any alcohol related offences.

(ii) Mitigating Factors

[32] Mr. Maxwell is a first time offender in respect of the “over 80” and impaired operation of a motor vehicle causing bodily harm on which he was convicted. He did co-operate with the Pre-Sentence reporter. He did attend at trial. He has shown compliance with probation orders since his last release from custody. He has demonstrated positive steps to turn his life around. In this regard, he has demonstrated a change in attitude and engagement in the process of rehabilitation.

[33] However, what happened as a result of Mr. Maxwell’s drinking and driving can only be described as a major step backwards for him in his attempts to move forward. As a result, his friend Mr. Leduc-Moreau suffers today and very likely will suffer into the future. Even though he is a first offender, the aggravating circumstances predominate.

[34] While not aggravating circumstances, Mr. Maxwell has not shown any remorse and he has not taken responsibility for what he has done. Instead, he has absconded and turned his back on accepting responsibility for the consequences of his actions. His conduct in this regard can only be viewed in a negative light by this court.

PRINCIPLES OF SENTENCING AND REASONS

[35] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. A number of objectives are specified in section 718. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offences from society where necessary. The caselaw as it applies to the case before this court clearly demonstrates that denunciation and general deterrence to others is paramount together with specific deterrence regarding Mr. Maxwell. These are fundamental driving factors in deciding what sentence to impose on him having regard that he is a first offender and having regard that in the past he was engaged in rehabilitation.

[36] Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In our case, both the Crown and the defence agree that a custodial sentence is an appropriate and fit sentence. However, they disagree as to the term of sentence and they disagree regarding the length of driving prohibition. In addition, s.718.2 of the Criminal Code speaks to other sentencing principles that a court shall take into consideration including aggravating circumstances together with the principles of proportionality and consistency of sentences for similar offences.

REASONS

[37] Because of the horrific damage caused by drinking and driving to individuals, to our community and to our society at large, the sentencing principles of denunciation for such conduct, general deterrence and specific deterrence, in this case to Mr. Maxwell, are paramount. Mr. Maxwell’s unlawful conduct in this case clearly attracts a custodial sentence. I have taken into account aggravating and mitigating factors. The aggravating factors far outweigh the fact that Mr. Maxwell is a first time offender regarding his drinking and driving convictions. I am fully aware that Mr. Maxwell’s criminal antecedents are long-standing but that his last conviction was in 2007. There have been no convictions for any offences including drinking and driving until he was convicted in this case.

[38] I do not agree that in the circumstances of this case that a penitentiary sentence of four years would be a fit and proper sentence. Nor do I agree with the submissions by the defence that Mr. Maxwell’s unlawful conduct attracts a prison sentence of six to nine months. I have taken into account the circumstances of Mr. Maxwell, the circumstances of Mr. Leduc-Moreau, the sentencing principles as set out in the Criminal Code, the relevant caselaw together with the aggravating and mitigating factors in this case. I have concluded that notwithstanding the fact that Mr. Maxwell is a first time offender, his impaired driving caused exactly the type of serious injury that our courts have condemned time and time again resulting in the imposition of jail sentences. A jail sentence for Mr. Maxwell is appropriate and fit in this case. Such a sentence emphasizes the sentencing principles of denunciation and general and specific deterrence. I have also taken into account the steps taken by Mr. Maxwell to rehabilitate himself before March 2009 and that there are prospects for his rehabilitation in future.

[39] However, the punishment in this case must fit the crime. Mr. Maxwell is hereby sentenced to a term of imprisonment of 18 months upon his conviction of impaired driving causing bodily harm. His “over 80” conviction is stayed at the request of the Crown based upon the principle in Kienapple. A reformatory sentence of 18 months in the circumstances of this case is a fit and appropriate sentence.

ANCILLARY ORDERS

[40] The Crown requests a driving prohibition of ten years in addition to the custodial sentence. The defence seeks a driving prohibition in the range of two to three years. Mr. Maxwell is not before the court. He is an absconding offender and may still be operating a motor vehicle notwithstanding the fact that he had turned in his licence on October 10, 2012. He has shown no remorse for his unlawful conduct. I am concerned that the need for specific deterrence be brought home to Mr. Maxwell today although he is not in the presence of this court or at some future time when these Reasons for Sentence are brought to his attention. I am satisfied that in all of these circumstances Mr. Maxwell cannot avoid the consequences of his unlawful conduct by simply absconding. I am satisfied that a ten year driving prohibition will be adequate to serve the objectives of sentencing and the need to protect the public in this case.

[41] A DNA sample order will be granted. The offence in this case is a secondary designated offence as defined in s.487.04 of the Criminal Code. It is permitted under the Code. It is opposed by defence counsel. While defence counsel feels that such an order is unnecessary, I disagree. In light of Mr. Maxwell’s overall conduct, the DNA sample order in this case is not only appropriate but necessary. Given the totality of his criminal record, the circumstances of this case and Mr. Maxwell being an absconding offender, there shall be a DNA order.

[42] In summary, Mr. Maxwell is sentenced to 18 months imprisonment regarding the conviction for impaired driving causing bodily harm. The conviction for “over 80” is stayed. Mr. Maxwell shall be the subject of a driving prohibition order for ten years. He is prohibited from driving a motor vehicle for ten years commencing from the date of his release after serving his term of imprisonment. He shall also provide a DNA sample.

DiTOMASO J.

Released: August 9, 2013