COURT FILE NO.: CR-39700-19-108

DATE: 2021/03/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Montana Gabriel

Isabel Blanchard and Alexandre Simard, Counsel for the Crown

Jeffrey Langevin, Counsel for the Accused

HEARD: November 20, 2020

Sentencing Decision given Orally

Champagne, j.

Oral Decision on Sentence

Introduction

[1] The accused, Montana Gabriel, is before me for sentencing having been found guilty impaired driving causing death and impaired driving causing bodily harm and criminal negligence causing death and criminal negligence causing bodily harm.

[2] The offences, arising out of an ATV crash, occurred between late August 16 and early August 17, 2018.

[3] The victims are Chasidy Shedrick who sustained serious injuries, and Jasmine Saunders who sustained a severe traumatic brain injury which resulted in her death over two months after the accident.

The circumstances of the offences

[4] The offences occurred between August 16and August 17, 2018 as a party attended by a number of young men and woman at Ms. Gabriel’s house was winding down. There had been drinking by most of the party goers all night and Ms. Gabriel was impaired by alcohol when she decided to leave her property on her new ATV with Ms. Shedrick and Ms. Saunders as passengers. The ATV was not meant for passengers and Ms. Gabriel allowed the two young women on the vehicle. Ms. Saunders was not wearing a helmet.

[5] Ms. Gabriel left the driveway and sped up the road at a rate speed which caused her passengers to yell at her to slow down. She turned around and driving quickly enough to warrant Ms. Shedrick to yell at her to slow down, drove on the opposite side of the road, into a ditch full of tall grass where she drove for some distance at a rate of speed sufficient to launch her ATV airborne at a 14 degree incline when it struck an open gate. The ATV continued to the other side of the ditch where it rolled and threw Ms. Gabriel, Ms. Shedrick and Ms. Saunders. All three were injured. Ms. Saunders most seriously.

[6] Ms. Shedrick sustained compression fractures to her spine at T4 – T8, she fractured her right wrist, her right knee, her elbow and her collarbone. Her wrist has never fully recovered.

[7] Ms. Saunders sustained a traumatic brain injury which ultimately resulted in her death on October 28, 2018.

[8] Ms. Gabriel herself was also injured. She told the pre-sentence report-writer that she sustained a concussion, fractured her spine, sustained crack ribs and a broken fibula as well as a collapsed lung.

The circumstances of the accused

[9] A pre-sentence report dated February 19, 2021 was provided to the Court. It paints a picture of a young woman age 23, who has a grade 12 education and who can be sweet, easy-going and caring but also explosive, manipulative and erratic in terms of mood.

[10] Ms. Gabriel reported she grew up in a home with her two parents until they separated when she was 13 years old. She said her parents provided her with love and support. She indicated to the report-writer that when her parents were together, they had frequent verbal arguments which sometimes became physical and she said that her father was a functioning alcoholic. Ms. Gabriel is said to have found her parent’s separation to be traumatic and her mother advised the report-writer that, following the separation, Ms. Gabriel became more difficult and explosive and engaged with a more negative peer group. She was said to experiment with drugs at this time, mainly marijuana. She states she is not currently using marijuana or consuming alcohol at present, in compliance with her bail conditions. Both Ms. Gabriel and her mother indicate Ms. Gabriel’s use of alcohol or other substances are of no concern despite the role alcohol played in this offence.

[11] Ms. Gabriel told the report-writer she received her first ATV at age 6 as a gift and Ms. Gabriel’s mother advised that Ms. Gabriel grew up seeing people drink and drive ATVs. Ms. Gabriel admits to being under the influence of alcohol on the night of the accident. The report- writer found Ms. Gabriel engages in some minimization of her role in the accident reporting that she was in “black out state” prior to getting on the ATV with her friends. She claimed to the report-writer that while she was allegedly coherent, she did not know what she was doing. She also indicated that she accepts responsibility for her actions and pleaded not guilty on the advice of her lawyer. The report-writer expressed that Ms. Gabriel appeared sincerely remorseful for what happened.

[12] The Court received victim impact statements from Jasmine Saunder’s sister Brooklyn, Jasmine’s mother Spring Cowles, and Chasidy Shedrick as well as a number of other family members and friends, specifically, Krista Charlebois, Marie Portieous, Alexandra Daoust, Christine Sloan, Kassandra Charlebois, Marina Lewis, Samantha Adamczyk. The statements of Brooklyn Saunders and Chasidy Shedrick were filed as exhibits and the rest of the statements were read into the record by the Crown.

[13] The victim impact statements gave me a glimpse of Jasmine. She was a beautiful, warm, kind, soul who would do anything for anyone. She worked hard and her possibilities were endless. At the time of her death, she was only 18 years old but was living on her own and working to pay her bills while she finished high school. She was described as determined, independent, fiery, ambitious, optimistic and strong. She had a contagious laugh and a love for mustard and pickles. She was just on the verge of starting her adult life. Her sister and her mother suffered a devastating loss when she died. Both describe feeling almost unendurable pain, heartbreak and depression from which neither feels they will completely recover. Brooklyn feels guilty for not somehow changing the course of events that day, she also feels guilty for all of the time she spent in the hospital with Jasmine, away from her two children, a 4-week-old baby girl and her toddler brother. She missed some firsts in that time, first laugh, first roll-over. It is time she will never get back. Her children will never know the warmth and vitality of their aunt other than through stories. Brooklyn talked about losing her best friend when Jasmine died. So did Chasidy Shedrick and every other friend who gave a statement. All felt Jasmine was their best friend. Jasmine made them all feel that way. What a gift. Chasidy described feeling pain every day without her best friend. All of her best memories involve Jasmine and she said the majority of those memories would not have happened had she not met her. Jasmine was the person she called when things were good, when things were bad, when she had good news to share and when she needed advice. She was her go-to person and now she is gone. This theme is present in a number of the victim impact statements read in court. Chasidy also suffered serious and permanent injuries in the accident. She was hospitalized for two weeks; she had a number of surgeries. When she got home, she could do nothing for herself. She could not move around without assistance or shower herself. She needed help from family and a Personal Support Worker. She has been left with a permanent injury to her wrist and with exacerbated anxiety; she is also plagued by survivor’s guilt.

[14] The lives of so many people have been touched by this senseless tragedy. Jasmine’s family and friends, Chasidy and Ms. Gabriel and her family as well. All of their lives have been redirected in an unimaginable way.

Position of the Crown

[15] The Crown’s position is for a period of incarceration of 7 to 8 years, less pre-trial custody which both the Crown and defence counsel agree is 280 days, which, when credited at a rate of 1.5 days, amounts to 420 days.

[16] The Crown provided the Court with caselaw on impaired driving and criminal negligence causing death and injury and argues the primary considerations in sentencing for impaired driving are deterrence and denunciation. The Crown submits that, since 2010, there has been an incremental increase in the length of sentences for impaired driving, particularly in the wake of R. v. Ramage 2010 ONCA 488, R. v. Niganobe 2010 ONCA 508, R. v. Junkert 2010 ONCA 549 and R. v. Kummer 2011 ONCA 39. 2010 was a turning point in sentencing for these types of offences. The Crown submits that the increase of the length sentences over the last decade has been meant to send a strong message to would-be impaired drivers not to get behind the wheel. The Crown submitted a number of cases to the Court where sentences of 5 to 7 years or more were imposed, many of which were on guilty pleas (R .v. Fallows 2017 ONSC 7786, R. v. Purtill 2013 ONCA 692, R. v. Stevens 2016 ONSC 317, [2016] OJ No 254 (ONSC), R. v. Fracassi 2017 ONSC 28, R. v. Canavan 2018 ONSC 72 18, R. v. Poisson 2019 ONSC 3554, R. v. Osman 2019 ONSC 327, R. v. Luskin 2012 ONSC 1764, R. v. Randhawa 2020 ONCA 38, R. v. Brown 2019 ONSC 4242, R. v. Davis-Locke 2020 ONCJ 782, R. v. Xia 2019 ONCJ 632, R. v. Boily 2020 ONCJ 465, R. v. Magna ONCJ 624).

[17] The Crown argues that Ms. Gabriel’s age should not be a significant consideration in an appropriate sentence and cites R. v. Lacasse 2015 SCC 64 para 79 for the proposition that it is appropriate to give the youthfulness of an accused less weight in impaired driving cases.

Position of the Defence

[18] The defence suggests a sentence of 28 months taking into consideration pre-sentence custody of 420 days, for a total of 40 months. The defence argues the Court should take into consideration Ms. Gabriel’s youthfulness and should give some credit for the fact that she has been on bail on house arrest for almost a year. The defence cites a number of mitigating factors in Ms. Gabriel’s case and submits the Court should not punish her for taking the advice of counsel and pleading not guilty.

[19] The defence submits that in the case of a youthful first offender, the Court should impose the shortest period of incarceration to achieve the relevant objectives (R. v. Borde 2003 4187 (ONCA).

[20] The defence supports his submission that a 40-month global sentence is appropriate citing R. v. Nandall 2009 43656 where the accused was sentenced to 3 years for criminal negligence causing death and impaired driving causing death plus 6 months for failing to remain at the scene; R. v. Cook 2012 ONSC 3265 where the accused was sentenced to 4 yeas for impaired driving causing death plus 6 months consecutive for driving while disqualified and R. v. Osman 2019 ONSC 327 where the accused was sentenced to 5 years for criminal negligence causing death and impaired driving causing death in the death of the passenger of the car he was driving at a high rate of speed.

Analysis

The principles of sentencing

[21] The fundamental purpose of sentencing is confirmed in s. 718 of the Criminal Code. That section provides that the sanction imposed by the Court should have one or more of the following objectives:

a. To denounce unlawful conduct;

b. To deter the offender and other persons from committing offences;

c. To separate offenders from society, where necessary;

d. To assist in rehabilitating offenders;

e. To provide reparations for harm done to victims or to the community; and

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

[22] The primary considerations in sentencing for impaired driving offences are deterrence and denunciation (R. v. McVeigh 1985 115 (ON CA), R. v. Ramage 2010 ONCA 488) In addition, any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). Within this context, the Court must also take into account the aggravating and mitigating circumstances surrounding the offence and the offender.

The aggravating and mitigating factors

The aggravating factors

[23] There are a number of aggravating factors in this case. First and foremost, is the impact on the victims. Jasmine lost her life, a life full of possibilities. Her friends and family lost the benefit of her very important presence in their lives. Her death leaves them devastated and broken. There is a hole in their lives which can never be repaired.

[24] The accident was senseless and so preventable at so many different junctures that night. Choices made by Ms. Gabriel forever changed the lives of so many. Ms. Gabriel knew there would be drinking at this gathering and should have addressed her mind to preventing drinking and driving for both herself and her guests. She didn’t do that. In her intoxicated state, she should not have driven any vehicle, period. She did just that. She should never have taken passengers on her ATV but chose to do so. She should never have allowed Jasmine on the ATV without a helmet, but she ignored this very basic safety requirement. Her manner of driving was criminally negligent.

[25] Ms. Gabriel’s minimization of her role in the accident is also an aggravating feature. The pre-sentence report-writer noted Ms. Gabriel said she would have pled guilty but for the advice of counsel. While she acknowledged that alcohol played a role in what happened, she said she was in a “black out” state when she got on the ATV and she did not know what she was doing. To be clear, Ms. Gabriel’s plea of not guilty is not an aggravating factor. She is entitled to a trial. What is aggravating is her claim to the report-writer that she was in a blackout state and did not know what she was doing. The evidence at trial said otherwise. Her level of moral blameworthiness is high. Her attempt to blame it on alcohol is not acceptable. She made the choice to drink. She made the choice to get behind the wheel of her ATV.

The mitigating factors

[26] There are a number of mitigating factors in this case.

[27] Ms. Gabriel had no criminal record at the time these offences were committed, and she has the support of her family who are with her today.

[28] She has completed her High School Diploma while on house arrest.

[29] Ms. Gabriel is of aboriginal descent and while she never previously participated in cultural activities in this regard, she participated in smudging while she was incarcerated and has expressed an interest in pursuing that part of her heritage.

[30] Until today, there was some question as to Ms. Gabriel’s remorse. Certain family members and friends expressed that they felt she had no remorse. She was given the opportunity today to address the Court on her own behalf and she said she was remorseful. She said if she could trade places with Jasmine, she would. She was tearful as she listened to Jasmine’s mother’s victim impact statement and she was tearful when she said how sorry she was and never meant for this to happen. I accept that she is truly sorry for what happened.

[31] Sentencing is not an easy task. Paramount in sentencing on impaired driving convictions are the principles of deterrence and denunciation. The sentence I impose must be sufficient to deter Ms. Gabriel from ever driving impaired again. It also needs to send a message to society at large that the consequences for impaired and negligent driving are extremely serious. That message to the wider public is to deter would-be impaired drivers and to protect the public. The sentence must also instill public confidence in our justice system. No sentence I impose can repair the devastation, heartbreak and anxiety left behind by this tragic and senseless crime, but my sentence must take into account the harm done to the victims and their families who are also victims. It must take into account the gravity of the offence. One victim lost her life and one victim has suffered permanent physical injury and has not recovered her mental health as of yet. Finally, my sentence must consider that Ms. Gabriel is a young person who had no criminal record at the time of this offence, her life has and will continue to be forestalled by these events for a long time.

[32] No Gladue report was sought or referenced in this proceeding but the pre-sentence report- writer indicated she was asked by Ms. Gabriel’s counsel to include Gladue information. Ms. Gabriel advised that she had a paternal aunt who had status and was of Iroquois Woodland/Metis descent. The report-writer indicated that to Ms. Gabriel’s knowledge no one in her immediate family attended residential school, nor did they reside on reserves. The report-writer requested that Ms. Gabriel’s aunt contact her but did not receive communication from her.

[33] Prior to this proceeding, Ms. Gabriel had no connection to her aboriginal heritage nor did her defence counsel argue that her status reduced her moral culpability. In the circumstances, on the record before me, I see no circumstances which would warrant a reduction in sentence in line with Gladue principles.

[34] Having reviewed the caselaw provided by both the defence and by the Crown, I note that many of the cases submitted by the Crown, where higher sentences were imposed, involved higher readings and speeding and multiple victims. The cases for the defence showed the trend of increasingly higher sentences over time and, in my view, a sentence of 40 months would not be sufficient today. Having reviewed the caselaw, in all of these circumstances, I am imposing a global sentence of 66 months, less 420 days on Ms. Gabriel. In my view, the sentence recognizes the gravity of the offences, the fact that a life was lost and another resulted in permanent injury and it recognizes, in some measure, the devastation caused to those who have been left behind. The sentence focuses on deterrence and denunciation, but also takes into consideration the fact of Ms. Gabriel’s age to which I give some weight, and the fact she had no criminal record at the time of the offence. I give no consideration to the time she has been on house-arrest as it was as a result of her own doing. In my view, this sentence takes into consideration the principle of parity of sentence when sentences for similar offences are considered.

[35] Ms. Gabriel is therefore sentenced to 66 months on each of the counts of impaired driving causing death and criminal negligence causing death and 36 months on each count of impaired driving causing bodily harm and criminal negligence causing bodily harm, all to be served concurrently, less time served of 14 months (420 days).

[36] There will be a 7-year driving prohibition.

[37] There will also be a DNA order and an order that the accused refrain from contacting any of the victims or their families while in custody.

The Honourable Justice Nathalie Champagne

Released: March 26, 2021