Court File and Parties

Court File No.: CR-15-92 Date: April 19, 2017

Ontario Superior Court of Justice

Between:

Her Majesty the Queen Caitlyn Downing for Her Majesty the Queen

- and -

Martial Laverdure Jessica Fuller, for the Accused Accused

Heard: April 12, 2017

Reasons for Decision

James, J.

Introduction

[1] This is the sentencing hearing for Martial Laverdure. Mr. Laverdure was found guilty of dangerous driving causing death on September 22, 2016 and the submissions by the lawyers respecting an appropriate disposition were heard on April 12, 2017. The case was put over to today for sentencing.

Circumstances of the Offender

[2] Mr. Laverdure is about 41 years old. He was previously in a common-law relationship and has three children who are now 19, 17 and 12. He is unable to work and is receiving a disability pension due to mental health issues. He suffers from anxiety and periods of depression. He has a mental health worker who provides support. He resides in social housing because of his health challenges and low income. There is a real risk he will lose his accommodation as a consequence of being sent to jail. He does not have a significant criminal record. His driving record does not disclose a pattern of reckless or inappropriate driving behavior.

Circumstances of the Offence

[3] The details of what happened during the evening of January 11, 2015 are fully set out in my decision wherein I found Mr. Laverdure guilty as charged following a 7 day trial. While I do not intend to recite those details for the purpose of sentencing Mr. Laverdure, I have considered all the relevant facts in determining an appropriate sentence.

[4] Briefly stated, on a quiet Sunday night just as a Lumber Kings game had finished and the spectators were leaving the Pembroke Memorial Centre, Mr. Laverdure was proceeding at a high rate of speed on Lake Street outside the arena. Inexplicably, he drove into a crowd of pedestrians striking at least two, maybe three people who had been at the hockey game and fatally injuring retired Chief Warrant Officer Ernie Hall. It appears that Mr. Laverdure did not apply his brakes until about the time of the first impact. From there he skidded close to 100 feet to where Mr. Hall was walking along the edge of the road. He struck Mr. Hall with sufficient force to propel him over 25 metres. Clearly he was driving much too fast with the police expert estimating his speed at about 60 km per hour at the moment of impact. Mr. Hall died of his injuries the next day.

[5] Mr. Laverdure did not testify at the trial so we do not know what he saw or didn’t see that night or what he was thinking as he approached the arena.

[6] There was no evidence, however, that his ability to drive that evening had been impaired by alcohol or drugs or that he was using his cell phone or was otherwise distracted.

Parameters of the Offence

[7] The offence of dangerous driving provides for a maximum sentence of imprisonment for 14 years. There is no specified minimum sentence. A conditional sentence or house arrest is no longer available as a sentencing option.

Position of the Parties

[8] The position of the Crown is that Mr. Laverdure should receive a prison sentence of 2 ½ years and be prohibited from driving for 5 years.

[9] The defence position is that a sentence of 9 months, probation for a year and a further 3 year driving suspension would be appropriate.

Victim Impact Statements

[10] Ken Brown Jr., the son of one of the pedestrians struck by Mr. Laverdure and who was present outside the arena that night, wrote that upon seeing the body of Mr. Hall as it flew through the air, he thought it was actually his father. He heard the panic in his wife’s voice as she called out to him then he saw his father lying face down on the ground. He still is deeply affected more than two years later by the events that took place that night.

[11] Mr. Brown’s wife Deana, who was also present, wrote that she underwent physiotherapy for 6 months to deal with the consequences of being struck. Even now when she hears a car accelerating, she is terrified for her safety and that of her family.

[12] Peter Hall, the brother of the deceased, Ernie Hall, wrote that he misses the companionship of his brother. It was difficult to have to look after his dead brother’s affairs. He and his wife are paranoid in parking lots and crossing streets about the risk of being struck by a vehicle.

Principles of Sentencing

[13] The offence of dangerous driving causing death is subject to an unusually wide variety of penalties. There is no set range for this offence in the same way that there is for many other crimes. There are an almost endless variety of circumstances in which this offence can be committed. There are cases which have resulted in a lengthy period of imprisonment. Situations involving street racing, the presence of alcohol or drugs as a contributing factor or where multiple convictions disclose a flagrant disregard for the safety of others are examples of blameworthy conduct that warrant a stiff response. Many other cases, however, involve much less blameworthy conduct, inexperienced drivers making errors in judgment, for example, and the sentences imposed are correspondingly reduced.

[14] As difficult as this may be, the focus should be on the details of how the driving in question departed from what would be reasonable in the circumstances, rather than focusing on the consequences, which are usually catastrophic.

[15] It is a well-established principle of sentencing that a first sentence of imprisonment should be as short as possible and tailored to the circumstances of the offender rather than solely for the purpose of general deterrence (see the comments of Rosenberg J.A. in R. v. Priest, (1996), 30 O.R. (3d) 538 (C.A.) at p. 545).

[16] Another principle of sentencing that applies in this case is the requirement that alternatives to imprisonment be considered with particular attention to the circumstances of aboriginal offenders. The driving prohibition requested by Crown counsel is a good example of this. The loss of the right to drive is real punishment. At the same time, driving is a privilege and where dangerous driving is involved, the loss of the privilege should not be surprising. A driving prohibition takes effect from the date the order is made and in this case would be additional to the two years Mr. Laverdure has been unable to drive due to his bail conditions.

[17] The Supreme Court of Canada has directed that special considerations apply when sentencing aboriginal offenders such as Mr. Laverdure. The fact is that for reasons which are not clear, indigenous people remain vastly over-represented in our prison populations nearly twenty years since the Supreme Court of Canada’s decision in R. v. Gladue, [1999] 1 S.C.R. 688. The proportion of Aboriginal adults in Canadian prisons and remand centers is 7 to 8 times higher than the proportion of Aboriginal adults in the Canadian population as a whole. [1] While Crown counsel submitted that there the connections between this offender and the factors identified in the Gladue case are relatively weak and insignificant, the consequences of systemic discrimination can be subtle and not always easy to detect. The offender in this case has suffered from serious mental health issues for years, including drug abuse and self-harming tendencies. His children have not experienced an easy and healthy launch into adulthood. Who is to say where the roots of this failure to thrive may be found?

Mitigating and Aggravating Factors

[18] There are several mitigating factors present in this case that tend to reduce what an otherwise appropriate sentence would be. They include the fact that Mr. Laverdure does not have a significant criminal record. He has the support of his parents to assist in his transition back into the community when he is released from prison. He was not engaged in a foolhardy activity when the mishap occurred. This is a case of excessive speed in the presence of numerous pedestrians, not racing, not impaired driving, not showing off and not distracted driving.

[19] As for aggravating factors, I agree with Crown counsel that the fact that multiple pedestrians were struck is an aggravating factor. So too is the fact that it appears that Mr. Laverdure did not apply his brakes until the moment of impact with Mr. Brown.

Case Law

[20] In R. v. Noganosh, 2017 ONSC 131 the offender pleaded guilty to causing an accident that took two lives and badly injured a third victim. She received 12 months and 2 years’ probation with 200 hours of communication service.

[21] In R. v. Laine, 2015 ONCA 519, [2015] OJ No. 3619 (C.A.) the offender was driving at excessive speed and lost control. Two of his passengers were killed and a third badly injured. The Court of Appeal reduced the original sentence from 4 years to 2 years less a day.

[22] In R. v. Christinck, 2012 ONCA 141 the offender was racing and lost control, killing two of his passengers. At the initial sentencing hearing the trial judge imposed a condition sentence (at that time a conditional sentence was available) but the Court of Appeal required that the balance of the sentence of two years less a day be served in custody. The offender in this case also received a 7 year driving prohibition.

[23] In R. v. Vaziri, [2004] O.J. No. 327 (C.A.) the offender was driving at an excessive rate of speed and lost control on a city street. One person was killed and another seriously injured. The trial judge imposed a sentence of two years less a day. The Court of Appeal reduced this to 15 months.

Disposition

[24] Mr. Laverdure, will you please stand.

[25] You have been convicted of dangerous driving causing death and are about to be sentenced for that crime. I accept that you did not intend to hurt anyone on the night in question but your conduct created a situation of great danger for those leaving the PMC after the hockey game. You drove at a high rate of speed into an area that was quickly becoming congested with pedestrians and vehicles leaving the parking lot. You are responsible for the fact that you struck and injured Mr. Brown and his daughter in law. You also struck and killed Mr. Hall, all because you were driving much too fast for the conditions and the situation.

[26] As a result of your actions, I sentence you to a period of imprisonment of 22 months and will recommend that your time be served at the St. Lawrence Valley Correctional and Treatment Center in Brockville, Ontario. Upon release, you will be on probation for one year. The terms of your probation include a requirement that you report to your probation officer within 72 hours of your release from custody and thereafter as directed by your probation officer. You will undergo such treatment and counselling as may be directed by your probation officer. There is a mandatory 10 year weapons prohibition and you will be prohibited from driving for 5 years.

Mr. Justice Martin James

Date Released: April 19, 2017

COURT FILE NO.: CR-15-92 DATE: April 19, 2017 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – MARTIAL LAVERDURE REASONS FOR DECISION Mr. Justice Martin James DATE RELEASED: April 19, 2017

[1] Mia Dauvergne, “Adult correctional statistics in Canada, 2010/2011” (2012), Juristat , Statistics Canada Catalogue no. 85-002-X <http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11715-eng.pdf > (Accessed: March 16, 2015).