ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-A2247

DATE: 2014/04/15

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAXIME MORIN-LEBLANC

Matthew Humphreys, for the Crown

Lorne J. Goldstein, for the Offender

HEARD: February 20, 2014 at Ottawa

decision ON SENTENCE

LALONDE J.

[1] Before I go any further in this procedure I would like to comment on the victim impact statements that were provided in written form. The statements show in poignant fashion that in a tragedy like this one, those relatives and friends never forget the victim. We tend to hold the loved one in our memory. The letters show that Alexandra Dodger was a very highly regarded young woman who had just completed her law degree and had just arrived in Ottawa to work for Amnesty International. I want to express my sincere gratitude for the three individuals who read their victim impact statements in open court. It takes courage and candour to take part in such proceedings. I take from all that I have read, that Alexandra Dodger was an exceptional woman, with a bright future ahead of her. The community has suffered a great loss.

Background

[2] Maxime Morin-Leblanc has been found guilty by a jury of criminal negligence causing death, impaired driving causing death, and refusing to provide a breath sample after causing death contrary to sections 220, 255(3), and 255(3.2) of the Criminal Code, R.S.C., 1985, c. C-46, respectively. The trial took place between November 12and November 30, 2013.

[3] On October 15, 2011 at 3:03 a.m. the applicant drove his Honda Accord containing two passengers the wrong way down St. Patrick Street from Dalhousie Street to Cumberland Street in the By Ward Market area of downtown Ottawa.

[4] At the intersection of St. Patrick and Cumberland, he struck and killed Ms. Alexandra Dodger as she was crossing the street.

[5] Constable Daniel Levesque, a member of the Ottawa Police Service, arrived on the scene and observed the applicant’s car parked, facing the wrong way on St. Patrick Street.

[6] Cst. Levesque learned that the applicant was the driver of the motor vehicle. The officer detected a strong odour of alcohol coming from the applicant’s breath and noticed the applicant’s eyes were red and glossy. When asked if he had any alcoholic beverages that evening the applicant replied “yes”, and according to Cst. Levesque, the applicant admitted to the consumption of several alcoholic drinks.

[7] Later that night, after the accused was informed that Ms. Alexandra Dodger had died and after speaking with a lawyer, Mr. Morin-Leblanc refused a police officer’s demand for a breath sample.

Personal Background

[8] Maxime Morin-Leblanc is 28 years of age and single. He lives presently with his mother in Gatineau, Quebec. He currently attends Ottawa University on a part time basis in a Social Science Program in which he has accumulated a substantial number of credits towards a degree.

[9] Maxime Morin-Leblanc has been working in a full time capacity for the Federal Government for the past four years as an acting planning and reporting analyst with the Department of Fisheries and Oceans Canada. He enjoys his position and is a valued member of his department. He is described by his supervisor as an exemplary and reliable employee.

Lifestyle

[10] According to the Pre-Sentence Report [“PSR”] prepared by Pierre Belanger, alcohol has not been a problem in Maxime Morin-Leblanc’s past as he drank socially only. If on occasion he drank a little too much, he never exhibited overly concerning or illegal behaviours. I must add that during his trial I observed some of his friends who appeared as witnesses who were with him on the night in question when Ms. Dodger was struck and killed. I note that Mr. Morin-Leblanc’s friends admitted to have had consumed too much alcohol the night in question. Staying away from such friends would enable Maxime Morin-Leblanc to make better decisions and ensure his compliance with the law in the future.

[11] Maxime Morin-Leblanc is a first time offender, is remorseful, and realizes that he committed a serious error and that he must be held accountable for his actions. His actions probably will cost him his wonderful and secure job with the federal government.

[12] Defence counsel has filed numerous letters from Maxime Morin-Leblanc’s employers, relatives and friends. Twenty-one letters of support were filed by many of Maxime Morin-Leblanc’s co-workers, immediate family, and long-time friends describing him with many qualities such as dependable, trustworthy, honest and as being a gentle soul. He also filed a psychologist’s report from Dr. Philippe Gauvreau. He wrote in his report:

M Morin-LeBlanc is a young man of good character. From what he’s reported during his therapy process, he clearly feels tremendous remorse and moral guilt over the tragic events that took place in October 2011. Added to that, he feels guilty about the pain and stress it is causing his family and friends who have been very supportive of him over the past 2.5 years. On different occasions during the trauma work, he’s manifested guilt and remorse over the pain the family of the victim must have felt and still must be feeling.

[13] Mr. Morin-Leblanc attended 25 psychotherapy sessions with Dr. Gauvreau in 2013 and 2014 as he had difficulty overcoming the shock and guilt of having caused Ms. Dodger’s death.

[14] In one of the several letters filed on behalf of Maxime Morin-Leblanc’s employer, Joanne Fortin, Director, Organization and Classification at the Department of Fisheries and Oceans Canada explained in her February 6, 2014 letter that Mr. Morin-Leblanc’s position can only be kept for him for two years otherwise, with a sentence of more than two years, Mr. Morin-Leblanc would be terminated from his current employment. Mr. Morin-Leblanc’s performance evaluation was filed as was Ms. Fortin’s personal notes on him. She unreservedly praised his work. His supervisor, Minette LeDrew, also filed a letter. Both letters show how highly Mr. Morin-Leblanc’s work was appreciated and how well liked he was in their department.

[15] I understand that while out on bail since the charges were laid in October, 2011, Maxime Morin-Leblanc has followed his release conditions and has abstained from the consumption of alcohol. Maxime Morin-Leblanc spent six days in custody pending his release.

The Mitigating Factors

[16] Maxime Morin-Leblanc is young and has the ability to rebuild his life. He had good employment and scholastic antecedents. He has no prior criminal record. His prospects for rehabilitation and return to gainful employment are good.

[17] Although not a mitigating factor, I note that immediately after the collision Maxime Morin-Leblanc stopped his car and cooperated with the police. At the scene of the accident he took a road side breath test promptly on demand by the investigating officer.

The Aggravating Factors

[18] Maxime Morin-Leblanc caused Alexandra Dodger’s death after he chose to drive having consumed an unknown quantity of alcohol.

[19] Maxime Morin-Leblanc drove the wrong way down St. Patrick Street for 205 meters on a street that was well lit and where the signage is excellent.

[20] At the police station, after speaking to legal counsel, Maxime Morin-Leblanc refused to provide a sample of his breath to the police after a valid demand for a sample was made and did not want to cooperate with the police any further even though he knew that Ms. Dodger had died as a result of the collision he had caused. He had a legal obligation to comply with the demand for the samples of his breath.

Relevant Sentencing Provisions

[21] The relevant sentencing provisions of the Code are as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2. A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

724(2). Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

The Crown’s Position

[22] The Crown is seeking a global sentence of seven years imprisonment.

[23] The sentences for the impaired driving causing death and criminal negligence causing death counts can be served concurrently.

[24] A consecutive sentence is required in relation to the refusing to provide a breath sample having caused a collision that resulted in a death.

[25] In regards to the criminal negligence causing death charge (s. 220), the jury’s verdict indicates that they concluded that Mr. Morin-Leblanc’s driving on the morning of October 15, 2011 showed a wanton and reckless disregard for the lives or safety of others and that Mr. Morin-Leblanc’s driving was a marked and substantial departure from what a reasonably prudent driver would do in similar circumstances.

[26] As a result of this conviction for criminal negligence causing death, which carries with it a higher level of moral blameworthiness than impaired driving, Mr. Morin-Leblanc’s behaviour and driving cannot be categorized as a “momentary lapse of attention” or a “momentary lapse of judgment.”

[27] The Crown is also seeking two ancillary orders:

(i) A DNA order pursuant to section 487.04 of the Code as these offences are secondary designated offences. The order is appropriate considering the accused’s criminal record, the nature of the offence, and the circumstances surrounding its commission when balance against the impact such an order would have Mr. Morin-Leblanc’s privacy and security of his person. The offender in this case has no prior criminal record.

(ii) A driving prohibition for a period of 10 years pursuant to section 259(2)(a.1) of the Code; that prohibition is completely at the discretion of the court and is appropriate in the circumstances given the nature of the offence and the circumstances surrounding its commission.

[28] I will deal with the Crown’s position further in this decision.

The Defence Position

[29] Defence counsel is requesting a sentence of two years less a day followed by three years of probation. He suggests that a five year prohibition from driving would be sufficient.

[30] I will deal with both Crown and Defence counsels’ submissions on the jurisprudence in an attempt to impose on Maxime Morin-Leblanc a just and fit sentence. As usual, both parties cited a number of cases to back their respective positions. I do not propose to go through each of the cases cited but I will refer to the cases that will illustrate both counsels’ position and those that will serve to anchor my decision.

[31] Defence counsel relies on R. v. Brisson, [2003] O.J. No. 6216 (Ont. S.C.) and the appeal of that decision reported in [2006] O.J. No 2183 (Ont. C.A.). In the trial level decision R.N. Weeks J. gave a sentence of two years less a day in a case of impaired driving causing death and criminal negligence causing death. The Crown in that case had requested a sentence of four years. Mr. Brisson had been speeding while his ability to drive was impaired by alcohol and while he was suffering from lack of sleep. He was a first offender and he also filed positive letters of reference. His driving prohibition was 12 years.

[32] On appeal in R. v. Brisson, the Ontario Court of Appeal upheld the trial judge’s decision of two years less a day.

[33] The decision in R. v. LaChappelle, [2005] O.J. No. 4248 (Ont. S.C.) was also cited by Defence counsel as a case similar to what we are considering in Mr. Morin-Leblanc’s case. In that case, the impaired driver collided with another vehicle killing the driver and causing his daughter, who was a passenger, serious permanent injuries. T.P. O’Connor J. imposed a period of 21 months of incarceration and a five year prohibition from driving for the impaired driving charge causing death charge and 15 months on the impaired driving charge causing bodily harm to be served concurrently with the first sentence of 21 months. This case was also upheld by the Court of Appeal (2007 ONCA 655) (leave to appeal to SCC dismissed [2007] S.C.C.A. No. 584).

[34] Defence counsel cited R. v. Junkert, 2010 ONCA 549, [2010] O.J. No 3387 to support the proposition that the fact that an accused was charged with the offences of dangerous driving causing death in addition to being charged with impaired driving causing death, does not increase the overall global sentence. In this case the fact that Mr. Morin-Leblanc was convicted of criminal negligence causing death over and above a conviction of impaired driving causing death should not affect the global result. D.R. O’Connor A.C.J.O. did not interfere with the five year sentence or the 10 year motor vehicle driving prohibition imposed by the trial judge.

[35] Mr. Morin-Leblanc is remorseful for his conduct. Defence counsel argued that the fact his client had refused to give breath samples once arrested and at the police station has nothing to do with a lack of remorse. The presentence report Pierre Belanger at page five states:

“He [referring to Mr. Morin-Leblanc] has expressed some remorse and he realizes that he committed a serious error and he must be held accountable for his actions. As well, Mr. Morin-Leblanc cannot be punished for going to trial on this matter. It is a charter right under our law that a citizen can cause the Crown to prove the elements of each charge a citizen is facing in court.”

[36] According to defence Counsel, there are no specific deterrence considerations that can apply in this case. Mr. Morin-Leblanc has not drunken any alcohol since the accident as is attested to by Mr. Morin-Leblanc’s friends and relatives who wrote letters of support to this court. Defence counsel pointed to the brilliant employment record of his client to request that period of incarceration be kept at a level that would enable his client to keep his employment. If Mr. Morin-Leblanc is sentenced to more than two years he will lose his job and, once released, become unemployable with a criminal record.

Analysis and Decision

[37] I accept Crown counsel’s argument that recent jurisprudence from the Ontario Court of Appeal sends a message to trial judges that the period of incarceration for offenders such as Mr. Morin-Leblanc has increased. The principle of general deterrence and denunciation call for a strong message to be sent to the community at large that even if the individual is a first time offender, has a good employment record and is a well respected member of the community. If you drink and drive and cause a fatality as in the case of Mr. Morin-Leblanc, an offender can expect a substantial jail term.

[38] While Mr. Goldstein reminded me I am not sentencing the community, I have to accept the instructions given by the Ontario Court of Appeal to trial judges. Conditional sentences and sentences of two years less a day are passé for the offence of impaired driving causing death, criminal negligence causing death, and failure to give a breath sample following a death. I am entitled, pursuant to Section 724(2) of the Criminal Code following a jury trial to accept as proven all the facts and conclude as the trial judge that Mr. Morin-Leblanc’s decision not to blow in the breathalyser machine was done with the knowledge that he caused an accident resulting in the death of another person.

[39] I am in agreement with Crown counsel that during the past three years, the appellate decisions in Ontario have increased the sentences given for the type of case under consideration here. Ten years have gone by since the trial decision in R. v. Brisson when the suitability of conditional sentences were being argued. A conditional sentence was not argued in this case. The case of R. v. LaChappelle was also decided in 2005 and was also dealing with conditional sentences.

[40] In R. v. Machado, [2010] O.J. NO. 6077 (Ont. S.C.) Durno J. relied on cases dating between 1998 to 2008 to arrive at a decision of twenty-two and a half months imprisonment for a charge of criminal negligence causing death and as such, the case is of no assistance to me.

[41] In R. v. Turnbull, [2009] O.J. No 6432 (Ont. S.C.), J.M.W. Donohue J. gave three and one half years to an offender on a count of impaired driving causing death and added a consecutive one year sentence for leaving the scene of the accident. The case has many references that apply to Mr. Morin-Leblanc’s case. They are as follows:

(i) The Ontario Court of Appeal in R. v. McVeigh, 1985 115 (ON CA), [1985] O.J. No 207 states:

“It is true that many of those convicted of these crimes such as impaired driving causing death 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 interest 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 substantial sentence for 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.” [para. 11]

(ii) In R. v. Biancofiore, [1997] 1 SCR 254:

“Every year drunk driving leaves a terrible trail of death, injury, heartbreak, and destruction. From the point of the 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 cost to the country.”

“The sentence for these crimes must bring home to other like-minded persons that drinking and driving offences will not be tolerated.”

“It is too easy for otherwise law-abiding people to view what happened in this case as an accident, an unfortunate consequence of an error in judgment rather than the commission of a criminal offence. Sentencing courts should be careful to ensure that they do not bolster that view of serious drinking and driving offences.” [para. 12]

[42] The following cases illustrate the point that the Ontario Court of Appeal has increased the penalties recently in cases similar to that of Mr. Morin-Leblanc:

(i) R. v. Junkert, D.R. O’Connor A.C.D.O. confirmed the trial judge’s sentence of five years imprisonment for impaired driving causing death and dangerous driving causing death with a 16 year driving prohibition. O’Connor J. States at paras. 44 and 46:

There are a number of factors that make this offence serious. The appellant made a choice to drive his car while his ability was impaired. In doing so, he took the risk that his driving would endanger other members of the community. That risk materialized and the consequences were enormous. A family has been shattered. Teresa Callaway was killed. Her husband is left without a loving spouse. He four young children will grow up without their mother. The sentence imposed should reflect the serious consequences that flowed from the appellant’s decision to drive while impaired.

In my view, a sentence of five years for this offence cannot be said to be “a substantial and marked departure” from the sentences ordinarily imposed on similar offenders for similar offences. In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society’s abhorrence for the after tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

In Junkert at para. 49, the Associate Chief Justice also remarked that the sentence “continues the very gradual trend that has taken place over recent years.”

(ii) In R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 D.H. Doherty J. upheld the trial judge’s four year imprisonment term given on the jury’s convictions of Mr. Ramage’s impaired driving causing death charge, dangerous driving causing death and the corresponding two charges for causing bodily harm to a passenger. Doherty J. likened the conduct of an impaired driver to the conduct created by a drunken man who walks down a busy street firing a handgun at random [para. 76].

(iii) In R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 J.C. MacPherson J. was dealing with an impaired driver who had a blood alcohol concentration more than twice the legal limit who caused the death of three people. The offender was appealing an eight year sentence of imprisonment on three counts of impaired driving causing death, three counts of dangerous driving causing death, two counts of impaired driving causing bodily harm, and two counts of dangerous driving causing bodily harm. MacPherson J. stated at para. 15:

As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences of four and five years for such offences in R. v. Ramage and R. v. Junkert, 2010 ONCA 549.

[43] The above cases illustrate that yes, there is a clear message given in the past three years by our Court of Appeal. Those decisions are binding on me.

[44] In R. v. Kummer, the sentencing judge had been presented with 22 letters written in support of the offender. This widespread support of the offender is also present in Mr. Morin-Leblanc’s case. His family, friends and co-workers describe this event as entirely out of character and further they describe him as a kind, caring, and generous person.

[45] In R. v. Kummer, the Court of Appeal underlined the trial judge’s balancing of the extent of the devastation as an aggravating factor as well as the offender’s loving family network, lack of criminal record, and good character as mitigating factors. In Mr. Morin-Leblanc’s case a similar balancing is required as I have weighed the mitigating factors applicable to Mr. Morin-Leblanc against the devastation caused by the loss of Alexandra Dodger’s life, the life of an intelligent and incredibly vibrant human being.

Stand up Mr. Morin-Leblanc

[46] I sentence you to three years imprisonment for the impaired driving causing death count and three years imprisonment for the criminal negligence causing death count to be served concurrently. I sentence you to one year imprisonment for the failure to provide a sample of your breath to be served consecutively for a total global sentence of four years. There is an order for a 10 year prohibition from driving and an order to provide a DNA sample.

[47] While I appreciate your courage in facing Ms. Dodger’s family and apologizing for your error in judgment I am bound by the jurisprudence to sentence you to a term beyond the two years less a day as suggested by your counsel. As you told the members of Alexandra Dodger’s family, Alexandra Dodgers’s memory keeps you going forward and I hope you use your time of incarceration to complete your social science degree and rebuild your life.

Mr. Justice Paul F. Lalonde

Released: April 15, 2014