R. v. Theriault, 2018 ONSC 7465

COURT FILE NO.: 157/17

DATE: 2018 12 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jean Gustave Theriault

Mary Ward, for the Crown

Stephen Whitzman, for the accused

HEARD: December 12, 2018

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1Jean Gustave Theriault (“Theriault”) has pleaded guilty to two criminal charges, both stemming from February 20, 2016 in the City of Burlington: impaired operation of a motor vehicle causing bodily harm to Antonio D’Angelo (“Antonio”) and impaired operation causing bodily harm to Maria D’Angelo (“Maria”), both contrary to section 255(2) of the Criminal Code.

2He now needs to be sentenced for his crimes.

II. The Facts

3The following summary is taken from the Agreed Statement of Facts.

4On the date and at the place stipulated, Theriault was driving his truck. At a controlled intersection, he failed to stop at a red light. He struck a car that was attempting to turn on a green light.

5Antonio and Maria were inside that car. They both suffered extremely serious injuries, detailed further below.

6When police arrived on scene, Theriault showed clear signs of intoxication, and his truck contained empty or partially empty liquor bottles. Breath testing revealed his blood-alcohol content to be 187 and 171.

7The evidence reveals that Theriault had almost no sleep in the 48 hours or so prior to the collision.

8Maria sustained a broken pelvis, bleeding in her brain, and a broken left arm. Antonio very nearly died. An induced coma was necessary. His injuries included brain damage, multiple broken vertebrae and a severely fractured pelvis. To this day, he remains hospitalized, confused and unable to walk, eat or drink.

III. The Offender

9A Presentence Report has been prepared. Theriault is currently 72 years old. He has two other criminal convictions – uttering threats in October 2013 (probation) and impaired driving in June 2017, which garnered a fine and a driving ban.

10The latter item had its offence date before the offence date in our case, however, Theriault was not convicted or sentenced on that other matter until after our offence date. Thus, I have not treated that impaired driving conviction on Theriault’s record as a prior related conviction for sentencing purposes.

11It should also be noted that Theriault has a lengthy driving record, with some eight speeding convictions accumulated between 2009 and 2016.

12Theriault was born in Halifax. His parents were married for more than fifty years and are both now deceased. He has six siblings. The family was poor and quite religious.

13Theriault left home at age 13. His first marriage, in the 1970s, ended because of his alcohol consumption. His 43 year-old son from that marriage lives and works in Nova Scotia. Theriault married a second time in 1990. That wife passed away in 2014. That marriage produced twin girls, now 27 years old. Theriault resides with one of them and works with the other.

14Theriault has his high school equivalency. He was in the Navy for a while but struggled with alcohol. He worked construction and factory jobs and ended up being a hairstylist for several years. Currently, he owns with one of his daughters an environmental consulting business.

15Theriault has a long history of alcohol abuse, whether he is prepared to admit the extent of it or not. He did complete a counselling program in the past.

16Although polite and cooperative with the author of the Report, Theriault did not accept that he drank too much alcohol to drive on the date of the collision. He “denied a concern regarding his alcohol consumption on that date” (page 5).

17Theriault has had some serious medical issues, including suicidal thoughts, emphysema and lung cancer. He is currently in remission.

18In addition to the Presentence Report, this Court has the benefit of a letter that was filed by the Defence and which is signed by several members of the offender’s family. That letter, among other things, confirms that Theriault struggled greatly in coping with the tragic death of his partner in 2014.

IV. The Positions of the Parties

19The position of the Crown is as follows: 3.5 years in the penitentiary, a ten-year driving ban, and a secondary DNA Order.

20The Crown filed a number of authorities, not so much for the specific sentences imposed therein but more to glean some important sentencing principles that are relevant to this case, namely (i) that there is a recent trend in the jurisprudence towards more severe sentences in impaired driving-related cases, and (ii) there is no definitive range of sentence for impaired driving-related crimes because the facts can be so varied from one case to another, and (iii) the paramount sentencing objectives applicable here are denunciation and general deterrence. I agree with all of those remarks.

21The Defence suggests a jail sentence of 2.5 years, less credit for the time that the offender has been on bail, for a net sentence of no more than 12 months, plus probation. No position was taken on the length of the driving ban.

22The Defence also filed some helpful authorities, which it submits are supportive of the notion that the range of sentence in this case is somewhere between 2.5 and 3.5 years in custody.

V. Analysis

The Legal Parameters

23Theriault faces a maximum punishment of ten years in prison. There is no minimum penalty in this case.

The Sentencing Principles

24Sentencing is a highly individualized and discretionary process. The penultimate goal is to impose a sentence that is commensurate with the degree of moral blameworthiness of the offender and that is fit in light of the facts of the offences and the circumstances of the offender.

25The penalty imposed must be a proportionate response to the gravity of the offences and the degree of responsibility of the offender. Even in cases where general deterrence is crucial, as here, we must be careful not to treat the individual offender, Theriault, unjustly solely to benefit the greater common good.

26As indicated above, the chief sentencing objectives in this case are denunciation and general deterrence.

27Society will not tolerate any more carnage on our roads caused by reckless motorists who insist, despite years and years of consistent messaging to the contrary, on getting behind the wheel while drunk.

28As Justice Felix observed in R. v. Mitchell, 2016 ONCJ 731, at paragraph 13, many years have passed since the Supreme Court of Canada commented so eloquently on the ravages of drinking and driving in its decision in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87, yet persons are still driving drunk.

29“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”. Bernshaw, supra, at paragraph 22.

30That was true then. I suspect that it remains true today. The trend in the case law towards stiffer penalties for serious impaired driving offences is meant to try to change that.

31Apart from denunciation and general deterrence, specific deterrence is a factor in this case. Theriault himself needs a lesson on the evils of drinking and driving. In my view, he downplayed to the author of the Presentence Report the severity of the situation.

The Aggravating and Mitigating Factors

32The aggravating factors in this case are plentiful and include the terrible driving (brazenly running a red light), the number of victims (two), the degree of drunkenness (very high breath readings that were more than twice the legal limit), the decision to drive while not only intoxicated but also while severely sleep-deprived, the lack of acceptance of responsibility as evidenced by the Presentence Report, the bad driving record, and the truly devastating injuries sustained by Maria and, even more so, by Antonio.

33To read the victim impact statements is heart-wrenching. A proud and industrious father and husband is now wearing a diaper because of the actions of Theriault. A family has been robbed of its patriarch.

34There is one significant mitigating factor, the guilty pleas. They were not entered that early but relatively soon after the completion of the preliminary inquiry. Further mitigating is that Theriault has sought some counselling and has abstained from the consumption of alcohol since the offence date.

Credit for Bail Conditions

35I decline to give to Theriault any credit for his house arrest since February 2016. I have no information as to how that has impacted his life. The home confinement term has always had an exception for any occasion that Theriault is with a surety. I have no information about whether the Defence sought any changes to the bail. I have no information about why the case was adjourned so many times.

36The decision to give credit for bail conditions is discretionary. No credit will be given here.

A Fit Sentence for Theriault

37I do not disagree with Mr. Whitzman that Theriault has exposed himself to a jail sentence in the range of 2.5 to 3.5 years.

38In my view, a three-year penitentiary sentence for this 72 year-old man who pleaded guilty and who has no prior related criminal record is a significant punishment that is capable of meeting the objectives of denunciation and general deterrence.

39Thus, the sentence of this Court is that Theriault be imprisoned for a period of three (3) years from today’s date. The secondary DNA Order shall issue. The ten-year driving prohibition Order sought by the Crown shall issue.

40Theriault is fortunate to have the support of his family. I hope that continues while he is incarcerated.

41For the members of the D’Angelo family, I wish them some peace in the days and years ahead.

42I thank both counsel, Ms. Ward and Mr. Whitzman, for their able assistance.

Conlan J.