Court File and Parties

BARRIE COURT FILE NO.: CR-17-228-00 DATE: 2019-06-10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NOAH POISSON Defendant

Counsel: Sarah Tarcza, for the Crown Leo A. Kinahan, for the Defendant

HEARD: May 24, 2019

Reasons for Sentence

Delivered Orally de Sa J.

Overview

[1] While travelling southbound on Line 13 North in the Township of Oro-Medonte, the vehicle driven by Mr. Poisson veered towards the right, travelling about 107 metres off the road before hitting an embankment on the edge of a creek. Parker Pautsch, the sole passenger in the vehicle, was ejected from the vehicle. The vehicle rolled over onto its roof, landing on top of Parker. Parker died at the scene.

[2] Both Noah and Parker had been drinking earlier that evening. Samples taken from Noah’s blood revealed he had a blood alcohol concentration (BAC) between 129 to 171 mg of alcohol in 100 ml of blood at the time of the accident.

[3] At the end of a trial, I convicted Noah Poisson on the charge of impaired driving causing death. See R. v. Poisson, 2019 ONSC 1462.

[4] On May 24, 2019, I heard submissions from the parties on the sentencing. The matter was adjourned to today for my decision. These are my reasons.

Relevant Principles

[5] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

[6] In cases of drinking and driving, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society’s condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future.

[7] As the jurisprudence indicates, general deterrence is particularly important in cases of impaired driving. R. v. Muzzo, 2016 ONSC 2068. As Justice Doherty explained in R. v. Ramage, 2010 ONCA 488:

In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court’s judgment in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, “every drinking driver is a potential killer”. [Emphasis added]

[8] The Crown takes the position that given the circumstances of the offence and the offender, a sentence of 7 years jail is appropriate. The Crown points out that the range of sentence has increased for offences of this nature. The Crown relies on the remarks of Fuerst J. in Muzzo at para. 69:

[S]entences for impaired driving causing death have increased in recent years. This reflects society’s abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.

[9] The Crown argues that there is clearly a need to send a strong message to future potential offenders. The impact of crimes of this sort on the community at large are significant and should be dealt with severely. Noah’s reckless decision to drive while intoxicated in this case resulted in the loss of Parker’s life. The serious and lasting consequences to Parker’s family will be felt for the rest of their lives.

[10] The defence argues that the circumstances of this case are unique: R. v. Suter, 2018 SCC 34. The accused is a first offender. Given his age, his evident remorse, the support of his family, friends and even the Pautsch family, the defence argues that a sentence of 2 to 3 years is appropriate.

[11] Unfortunately, the circumstances here are hardly unique. As recognized by the Supreme Court in R. v. Alex, 2017 SCC 27 at para. 1, drunk drivers cause tremendous suffering in Canadian society and place a substantial burden on the criminal justice system. Justice Cory commented in R. v. Bershaw, at para. 16, “every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction”. More recently, Justice Fuerst remarked in Muzzo at para. 2 where Mr. Muzzo’s impaired driving caused the death of a grandfather and 3 small children:

More than thirty years ago, the Court of Appeal for Ontario declared that members of the public who travel the roadways of the province should not live in fear that they may meet with a driver whose faculties are impaired by alcohol. But, as this case so tragically illustrates, the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded.

[12] I agree with the Crown, there is an ongoing need for the courts to send a strong message. However, this is true not only in cases where there are injuries or death involved. No drunk driver intends or expects to cause death or harm. However, every drunk driver willingly assumes this risk. In driving while impaired, these offenders callously risk the lives of others and the welfare of entire families with a level of indifference that warrants serious criminal sanction. Impaired driving must always be treated seriously by the courts if future offenders are to be deterred. Where there are serious consequences like in this case, the punishment will inevitably need to be even more severe.

[13] The accused is a youthful first offender. He was 19 years old at the time of the offence. I do consider his youth to be a mitigating factor. A person at 19 is not the same person they will be later in life. However, Mr. Poisson’s youth cannot be allowed to overwhelm the analysis. The importance of sending the message to younger drivers cannot be ignored. In Lacasse, in upholding a sentence of 6 ½ years on youthful offender (20 years old at the time of the offence), the Court explained at par. 79-80:

Although an offender’s youth is often an important mitigating factor to consider, it should be noted that it is young people who are affected the most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the instant case, for which the respondent is entirely responsible, the trial judge was right to reduce the weight attached to his youth as a mitigating factor.

[14] I also accept that Mr. Poisson is extremely remorseful. In his apology, Mr. Poisson acknowledged that the loss of Parker is something he will carry with him all his life. Parker was his best friend. In his moving statement, he apologized to the Pautsch family for causing their loss. He has promised that he will spend his life trying to make up for the wrong he has done. I believe he will. I view Noah’s prospects for rehabilitation to be very positive.

[15] It is difficult to fathom a greater loss than the loss of one’s child. Cathy Pautsch and her family will never see Parker’s smile again, or hear his voice. Despite this incredible loss, Parker’s family has shown exceptional grace and compassion. Parker’s mother has asked the Court to show Noah mercy in the circumstances. She has asked that Noah not be incarcerated. Similar expressions have come from various members of the community and Noah’s family. They have spoken about Noah’s kind and gentle heart. They have said Noah has already learned from his mistake.

[16] While I am moved by the sensitive expressions of support and forgiveness, this terrible loss was clearly avoidable. This decision, in context, was clearly just a choice to take an unnecessary risk. A risk that cost Parker his life. A risk that has cost a family their child. In the pre-sentence report, Ms. Pautsch also stated that this was not the first time that the boys took unnecessary risks of this sort.

[17] In R. v. Lawlor, a recent unreported decision from Orillia, the accused, who was 20 years old at the time, was driving a pickup truck when it went off the road and hit a tree. His cousin was killed instantly in the crash. Lawlor was found guilty of impaired driving causing the death. Justice Dawson imposed a sentence of 5 years in custody and a 10 month driving prohibition. The facts of the Lawlor case are strikingly similar to those in this case.

[18] I do view Noah as having a great deal of insight into the harm that he has caused. I can also see the evident pain he continues to experience. I see the pain that Noah’s family has experienced through this ordeal. They have lovingly supported Noah and the Pautsch family during the course of the trial.

[19] Having regard to all the circumstances, however, a substantial jail sentence is still necessary given the serious nature of the offence, and the extreme nature of the loss. In my view, a sentence of 5 years is appropriate here.

[20] In sentencing Mr. Poisson to 5 years, I have taken into account the time the offender has spent on bail with a curfew. I have also considered all of the factors above, including the fact that the accused has no criminal record and has extremely strong rehabilitative prospects. I have also considered the expression of remorse, and the request made by Parker’s mother for compassion.

[21] Mr. Poisson, please stand.

[22] For the offence of impaired operation of a vehicle causing death, I will sentence you to 5 years in custody.

[23] The offender shall provide a DNA sample.

[24] I will also impose a driving prohibition on Mr. Poisson for 7 years.

Justice C.F. de Sa Released Orally in Court: June 10, 2019