Court File and Parties

Court File No.: 23-11403211-A

Date: 2025-07-31

Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

Max Breton, Accused

Counsel:

Carl Lem, for the Crown

Kimberly D. Hyslop, for Mr. Breton

Heard: Sentencing Submissions June 3, 2025; oral decision given July 21, 2025

Reasons for Sentence

Anne London-Weinstein J.

Overview

[1] Max Breton pleaded guilty to impaired driving causing death, contrary to s. 320(14)(3) of the Criminal Code, R.S.C., 1985, c. C-46. An agreed statement of facts was filed in this case.

The Facts

Circumstances of the Offence

[2] On February 24, 2023, Max Breton picked up his six-year-old daughter from her after-school daycare in Renfrew, Ontario. He was driving his black pick-up truck. This was at about 4:50 p.m. By 5:48 p.m. he was driving on Highway 417 westbound near Eagleson Road. He was observed to be swerving a lot, such that another motorist called 911, described his truck and said she believed him to be impaired. At 6:57 p.m. Mr. Breton was driving in the area of Eagleson Road and Fallowfield Road. He was observed to be swerving all over the road, driving extremely slowly in and out of the lane, then running a stop sign, then speeding up but going into oncoming traffic. Two different motorists formed the opinion that he was impaired and called 911 to report his driving. A number of officers were dispatched to look for the truck, but not until around 7:39 p.m.

[3] One of the officers was Cst. Tim Murray, an Ottawa Police Service patrol officer working in the vicinity. He and his colleagues checked the area but did not locate the truck. At 8:16 p.m. Mr. Breton was driving with his daughter eastbound on Fallowfield Road, west of Huntley Road, in the City of Ottawa, when Mr. Breton struck a Silver Cadillac SUV which was travelling westbound on Fallowfield Road and driven by Hal Tierney.

[4] The speed limit along that portion of Fallowfield Road was 80 kilometres per hour. Cst. Murray was dispatched to the scene and arrived at 8:21 p.m. The impact of Mr. Breton's truck colliding with Mr. Tierney's vehicle caused Mr. Breton's vehicle to roll on its side facing westbound on the eastbound lane and Mr. Tierney's vehicle spun around and rested in the westbound ditch, trapping Mr. Tierney in his vehicle. Mr. Breton and his daughter were extricated from their vehicle by fire personnel.

[5] Mr. Breton's daughter was taken by ambulance to the Children's Hospital of Eastern Ontario (CHEO). She did not have any injuries. Mr. Breton was taken by ambulance to the Ottawa Civic Hospital. Prior to departing, Cst. Murray spoke with Mr. Breton inside the ambulance and questioned him about the crash and his alcohol consumption. Based on his responses and Cst. Murray's observations of glassy eyes and a red flushed face, he would later issue the approved screening device demand. The ambulance left the scene with Mr. Breton on board and Cst. Murray followed. A number of beer cans were found in and around Mr. Breton's truck. Mr. Tierney was extricated from his vehicle by fire personnel. He had severe injuries, including to both of his legs.

[6] Mr. Tierney was transported to the hospital where he died from his injuries as a result of the collision. The formal cause of death was multiple blunt force injuries caused by the collision. Police obtained a search warrant for Mr. Breton's hospital blood samples. Blood was seized and sent to the Centre of Forensic Sciences for analysis, which yielded a blood alcohol concentration of 244 milligrams of alcohol in 100 millilitres of blood. On March 22, 2023, police obtained a production order compelling the production of the applicant's hospital records from February 24 to 25, 2023. This resulted in the acquisition of medical records which showed that the hospital did its own toxicological screen of Mr. Breton's blood which yielded an alcohol concentration of 250 milligrams of alcohol in 100 millilitres of blood.

Circumstances of the Offender

[7] Mr. Breton has no criminal record. He is in a relationship with his spouse, Ms. Quartz-Belisle. He is 33 years old. He had a difficult upbringing after his parents separated and he helped care for his father who has Huntington's disease. He is a parent to two children, his daughter and a child he had with Ms. Quartz-Belisle while he was on bail. He is a hardworking and industrious individual who has his own business as a contractor with his business partner and friend Steven Moyneur. He has a limited education, due to leaving high school in Grade 10 to work. He maintains parenting time with his daughter, who fortunately was not killed or injured in the crash. Prior to this incident, Mr. Breton, like many others who have committed this offence, was regarded as highly responsible, hardworking, family-oriented and otherwise a valued member of the community.

Impact on the Victim and the Community

[8] The impact on Mr. Tierney is horrifyingly brutal; he is dead, killed in a senseless crash that should never have happened but for the actions of Mr. Breton. The impact on his family is nothing short of devastating. The court heard from Mr. Tierney's children, their mother, his siblings and other family members. Mr. Tierney was a beloved member of this tight-knit family. The grief and pain which has been inflicted on his family are palpable to the court. His brother, Brad Tierney, wakes up at 3 a.m. and relives the night that police officers arrived at his door to advise of his brother's death. His sister, Tanya Sterling, rightly points out that this is the time in their lives when they should have been able to enjoy life, and enjoy each other, instead the joy and happiness they should be experiencing has been swept away by the death of their brother due to a drunk driver. There was no impact information provided on behalf of the community, but some of it is self-evident given that impaired driving remains a significant source of death and injury in all communities.

Positions of the Crown and Defence

[9] The Crown is seeking a sentence of 6.5 years less credit for pre-sentence custody and a 10-year driving prohibition. The Defence position is five years imprisonment, less PSC of 26 days at a 1:5:1 ratio, which is 39 days. Also, the Defence seeks credit for restrictive bail conditions of eight months, and proposes a seven-year driving prohibition less time subjected to bail conditions.

Mitigating and Aggravating Factors

[10] The aggravating factors in this case include the length of time which Mr. Breton was driving—about 3.5 hours—his extremely high blood alcohol concentration (BAC) levels, which were more than twice the legal limit, and the fact that he had his six-year-old daughter in the truck with him at the time he was impaired behind the wheel. This last factor is significantly aggravating. In reviewing the photographs of the wreckage after the crash, the fatal injuries sustained by Mr. Tierney and the injuries sustained by Mr. Breton, it is remarkable that serious physical harm did not befall this young child. As it is, it is not speculative to infer that this chapter of her life, and that of her father will have potential impact on her psychologically as she grows up. She will have to come to terms with the fact that her father, in the depth of his addiction, risked her life by driving when he was impaired and that he killed another man while she was in her dad's truck.

[11] The number of empty beer cans in the truck suggest that he was drinking as he drove. The case involves the random and senseless taking of Hal Tierney's life. His death, as a result of Max Breton's decision to drink and drive that day in February, has severely impacted Mr. Tierney's family. This is an aggravating factor on sentence. Mr. Breton's driving record includes four speeding infractions and an additional regulatory infraction (no driver's licence or improper class of licence) between 2009 and 2023. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 64, the driver was speeding at the time of the crash which killed his two passengers. He pleaded guilty to two counts of impaired driving cause death and his prior driving record was an aggravating factor on sentence. In this case, Mr. Breton was not speeding at the time of the accident. I did consider his driving record demonstrated a degree of carelessness behind the wheel, but I gave this factor less weight given that speeding was not implicated in this crash as it was in Lacasse.

[12] Mr. Breton's plea of guilt is mitigating. I accept his expression of remorse, and I find it to be mitigating. Mr. Breton has engaged in a concerted effort to address his alcoholism, which is significantly mitigating, as it reduces the potential for him to be a recidivist. This is important to the future safety of the community. He has the support of his partner and his family and friends, which will assist him in his rehabilitative efforts. Letters of support from his spouse, mother, father, brother, stepmother, grandmother, friends and employees paint a picture of a man who is deeply remorseful—to the extent that his mother worried about his mental health—and who is committed to making positive changes.

[13] Without diminishing the gravity of his offence, Mr. Breton's friends and family spoke to his rehabilitative efforts. His friend Shayne Watts wrote, "[n]othing can change the outcome of the tragedy caused by him, but he is doing all he can to work on himself and taking the steps to continue his recovery and live his life on the right path."

[14] Wendy Belisle said, "I am aware that no words can undo the harm and loss caused by Max's actions. My intention in writing this letter is not to diminish the seriousness of what occurred, but to share my honest experience of the man I know—a person who has shown genuine remorse, taken meaningful steps to change, and committed himself fully to accountability and personal growth."

[15] Further, he completed the Adult Substance Use Treatment Program with the Rideauwood Addiction and Family Services and regularly attended Alcoholics Anonymous meetings.

Downes Credit for Time on Bail

[16] I did not find Mr. Breton's conditions of his release on bail to be a significant mitigating factor such that the eight months of Downes credit sought by the Defence is warranted: see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

[17] Downes credit is discretionary and only justifiable where it is punitive enough to be akin to punishment thereby warranting mitigation. Relevant factors include: the amount of time spent on bail conditions, the stringency of those conditions, and their impact on the offender's liberty and the ability of the offender to carry on normal relationships, employment and activity. In my view, Mr. Breton was able to largely carry on with his life and work on his rehabilitation while on bail. He was able to continue to work. He was able to experience the birth of a child with his current partner. He had a 10 pm to 6 am curfew, with exceptions. Between 6 am to 10 pm he could be out of his residence for employment, with a surety, or for a curfew exception. While he was not permitted to drive, this is not an unexpected term of bail given the nature of the charge. There is no evidence before the court that there was no one to drive him or that his ability to get to work was impacted by this condition. Further, the bail was varied on June 3, 2024, to allow him to operate a boom lift in the course of his employment, and only on private property. The bail was also varied to accommodate the pregnancy of Mr. Breton's partner to permit him to attend medical appointments relating to childbirth.

[18] Moreover, in Downes, Justice Rosenberg stated that where the offender asks the trial judge to take pre-trial bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. I did not have an affidavit from Mr. Breton outlining how the conditions of his bail negatively impacted him. However, some of the restrictions on Mr. Breton are self-evident. In the circumstances, I would give only modest credit of 60 days for time spent on what I regard as a bail which was much less restrictive than the one described in Downes, and which permitted Mr. Breton to carry on most of his everyday activities.

Pre-Sentence Report (PSR)

[19] A pre-sentence report was prepared in this matter and submitted to the court. Section 721(1) of the Criminal Code allows for a pre-sentence report to be prepared if required by the court. The report must be in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining if the accused should be discharged pursuant to s. 730 of the Criminal Code. Some aspects of the pre-sentence report were not properly admissible.

Content of Report

Section 721(3) of the Criminal Code provides:

Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

(a) the offender's age, maturity, character, behaviour, attitude and willingness to make amends;

(b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament;

(c) the history of any alternative measures used to deal with the offender, and the offender's response to those measures; and

(d) any matter required, by any regulation made under subsection (2), to be included in the report.

Idem

Section 721(4) of the Criminal Code provides:

The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report.

[20] In this case the court did not request additional information regarding the offence. Yet, the author of the report included comments from Mr. Tierney's family despite being aware that victim impact statements were being provided in this matter. This is not an appropriate use of a pre-sentence report.

[21] The purpose of a pre-sentence report is to provide an accurate, balanced, and independent picture of the offender: R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284. As Trotter J. (as he then was) wrote in R. v. Aleksev, 2016 ONSC 6080, 1 M.V.R. (7th) 93, at para. 25, a PSR is not a forum for the expression of views by those impacted by the offence. There is a separate procedure for obtaining input from victims in s. 722 of the Criminal Code. That procedure was used in this case, yielding information from those affected by the offence. This information should not have been repeated in the PSR.

[22] Trotter J. identified another dimension of the problem. The PSR will follow Mr. Breton as he makes his way through the correctional system. It will form part of his institutional file. Correctional and parole authorities may rely upon it in their assessments of Mr. Breton as they did in the case of Mr. Aleksev. As Trotter J. noted, this is why it is imperative that the document be balanced and fair: Aleksev, at para. 26.

[23] When a PSR contains inappropriate content, a sentencing judge has a number of options, including: (1) striking the PSR and ordering that a new one be prepared; or (2) ignoring the inappropriate parts of the PSR. The second option is preferable. Expunging the inappropriate content will result in a PSR that is acceptable and consistent with s. 721 of the Criminal Code. I have ordered that a copy of this judgment should accompany the PSR as part of Mr. Breton's institutional file. The inadmissible portions of the PSR should not be considered by parole authorities.

[24] The author of the pre-sentence report noted that Mr. Breton expressed remorse for his responsibility in the death of Mr. Tierney and the fact his child was in the car at the time. The author also found that Mr. Breton withheld details regarding the offence. However, given his blood alcohol levels at the time and the impact of the crash, it is possible that Mr. Breton does not recall much of what happened that day. There is no indication that the author of the report considered that possibility. In the circumstances, I did not find that Mr. Breton was being guarded with details of the offence with the author of the pre-sentence report. Given that there was an agreed statement of facts in this case, both the court and the author had an ample record to determine what happened, and what Mr. Breton voluntarily admitted to in this case.

Principles of Sentencing

[25] Section 718 of the Criminal Code sets out the fundamental purposes of sentencing. Those purposes include the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society, where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done.

[26] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[27] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. All of the sentencing principles must be balanced within the context of the facts of the individual case.

[28] In this case, deterrence, particularly general deterrence and denunciation are of primary importance. That is not to say that rehabilitation does not play a role in sentencing: it does. Mr. Breton has already demonstrated that he is a good candidate for rehabilitation as he has tackled his alcohol addiction. However, rehabilitation, while a factor to be considered on sentence, is not weighted as heavily in the balancing of other sentencing principles on the facts of this case, including general deterrence and denunciation. The sine qua non of sentencing is proportionality. The offender must be sentenced according to his moral blameworthiness in this and the gravity of the offence.

[29] As a member of Mr. Tierney's family noted, there is no sentence I can impose which will undo the damage which has been done in this case. No matter the sentence I impose, Mr. Tierney's children and his siblings and extended family have received a sentence of grief and sorrow which they will carry with them for their rest of their lives. Time will ease some of the pain of this loss, but life will never be as it was before Hal Tierney's death. Each family celebration, instead of being a time of unmitigated joy, will carry the shadow of the pain of Mr. Tierney's death, and a reminder of the cruelty and suddenness of his passing.

[30] There is nothing I can say or do to restore them to the place they were in before Max Breton killed Hal Tierney. His family evocatively described the extent of their loss and I listened carefully and have considered the impact of the loss on the victims in this case.

[31] Similarly, in imposing sentence, I recognize that Mr. Tierney's family will not be satisfied with any sentence I impose. Neither will Mr Breton, or his family and supporters.

[32] I have attempted to craft a sentence which adheres to the principles set out in ss. 718 to 718.2 of the Criminal Code and that it be a fit sentence, neither too lenient nor too harsh, in order to maintain confidence in the administration of justice. Further, while the sentence I impose must express appropriate denunciation and general deterrence, I am mindful of the principle of restraint. Mr. Breton has done a great deal of work while on bail to ensure that he is never a repeat offender. It is in the interest of the community that he never reoffends. The sentence I impose must not be so crushing as to diminish the work done with regard to dealing with your addiction.

[33] As Fuerst J. commented in R. v. Muzzo, 2016 ONSC 2068, 353 C.C.C. (3d) 41, cases of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character.

[34] In reviewing the case law, it is clear that there are common themes which emerge. First, sentences for impaired driving causing death are on the increase: Muzzo, at para. 69 and R. v. Luskin, 2012 ONSC 1764, 282 C.C.C. (3d) 542, at paras. 19-20.

[35] Secondly, offenders are often persons of otherwise good character, hardworking and family-oriented and without criminal history.

[36] In R. v. Bernshaw, [1995] 1 S.C.R. 254, Justice Cory explained the impact of drunk driving in our communities. As he said at para. 16:

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. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[37] After reviewing empirical data on the issue, Cory J. added the following observations at para. 19:

These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem.

[38] I was provided with a number of cases by counsel. I reviewed them all. However, I have only mentioned the cases that I think are most pertinent to the one before me.

[39] In R. v. Stevens, 2017 ONCA 686, 14 M.V.R. (7th) 1, the Court of Appeal upheld a six-year sentence. The offender was driving a pick-up truck. She struck the rear of a farm tractor. The driver of the tractor was killed. Her blood alcohol content at the time of the crash was between 70 and 110 milligrams of alcohol in 100 millilitres of blood. The Court of Appeal held that a six-year sentence was not outside the range of sentence for similar offenders who commit similar offences in similar circumstances.

[40] In R. v. Fracassi, 2017 ONSC 28, 5 M.V.R. (7th) 219, a small crew of township employees were working at the side of the road at night. Mr. Fracassi hit two of the employees, killing one of them. His blood alcohol level was in the range of 175 to 200 milligrams of alcohol in 100 millilitres of blood. He had no criminal record, but he had several driving infractions on his record. He had also developed a drinking problem about a year prior to the offences. There were however many mitigating factors as there are in this case. Boswell J., at para. 16, called the 34-year-old family man "the classic example of a good person who committed a serious offence with horrendous consequences," a description which also applies to Mr. Breton. Boswell J. carefully considered the case law, including some of the cases which I have reviewed. He noted that the sentences imposed in the previous 20 years have been increasing. He sentenced Fracassi to six years in the penitentiary on the impaired driving causing death count and a seven-year driving prohibition.

[41] In R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, the court could have been describing Mr. Breton. The trial judge in that case described the offender as a remorseful, family-oriented young man with an excellent employment history. He also found that the offender had taken steps to address his alcoholism and had good rehabilitation potential. However, the sentencing judge reasoned that specific deterrence was necessary given the offender's extensive provincial offenses record—which is absent in this case—and his operating a motorcycle without regard for the law requiring insurance, also a factor absent from this case. However, the factor which is present in this case and is highly aggravating is the presence of Mr. Breton's daughter in the vehicle for the 3.5 hours that he was driving, including at the time of the crash during which he killed Mr Tierney. It is fortunate that she was not killed or seriously physically injured, and it is not speculative to reason that she will experience the impact of her father's decision to drive drunk with her in the vehicle in the future. This factor, as I indicated, is highly aggravating and must be given appropriate weight in the sentence imposed.

[42] In addition to a six-year sentence, the sentencing judge imposed a 10-year driving and weapons prohibition and a victim surcharge of $200. Despite finding an error in the calculation of pre-sentence custody, the Court of Appeal did not find that six years less 24 days imprisonment was an unfit sentence.

[43] In Junkert, the Court of Appeal upheld a sentence of five years imprisonment. The accused's breathalyzer readings were 130 milligrams of alcohol in 100 millilitres of blood. He was traveling at or above a speed of between 90 to 93 kilometres per hour when he hit the pedestrian. He received a 10-year driving prohibition.

[44] In R. v. Canavan, 2018 ONSC 7218, 36 M.V.R. (7th) 126, aff'd 2019 ONCA 657, 46 M.V.R. (7th) 181, the court imposed a sentence of five and a half years. In that case, the offender was driving 30 to 40 kilometres above the speed limit and crossed into the oncoming lane of traffic, killing a driver in another vehicle. The sentence was imposed after trial. The offender had a criminal record, including a prior impaired conviction.

Final Decision

[45] In balancing all of the relevant factors in this case, the case law, and the submissions of counsel, I am of the view that the appropriate sentence in this case is six years less 99 days: 60 days for Downes mitigation while on bail and 39 days of credit for pre-sentence custody. This sentence reflects the need for general deterrence and denunciation in this case. The presence of Mr. Breton's six-year-old daughter in the truck for those hours that day and at the time of the crash distinguishes this case from others. This is a significant sentence at the high end compared to other cases. However, it is proportional to the blameworthiness of Mr. Breton and the gravity of the offence. The sentence is 365 days multiplied by six to equal 2,190 days minus 99 days for a total sentence of 2,091 days.

Ancillary Orders

[46] There will be a DNA order under s. 487.051(3) of the Criminal Code and a driving prohibition of eight years to commence at the end of Mr. Breton's custodial sentence. There will not be a deduction from the eight years driving prohibition for the time where driving privileges were suspended while on bail as requested by the Defence. There will be a non-communication order under s. 743.21 of the Criminal Code ordering that Mr. Breton not communicate with any member of Mr. Tierney's family.

Anne London-Weinstein J.

Released: July 31, 2025