R v Nottebrock, 2014 ABQB 662

Court of Queen ’ s Bench of Alberta Citation: R v Nottebrock, 2014 ABQB 662 Date: 20141103 Docket: 120208939Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Amie Kristen Nottebrock Accused _______________________________________________________ Sentencing Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] The offender, Amie Kristen Nottebrock, was driving her motor vehicle on January 8 th , 2012 while she was intoxicated and speeding.

She entered an intersection facing a red light, struck another motor vehicle that was lawfully in the intersection and killed the driver of that vehicle and the passenger in her own vehicle. [ 2 ] The offender was convicted of two counts of criminal negligence causing death and two counts of impaired driving causing death. A detailed description of the motor vehicle collision and the circumstances surrounding it is contained in R v Nottebrock , 2014

ABQB 318 . Positions of The Parties on Sentence [ 3 ] Counsel for the offender and Crown Counsel agree that the appropriate range of a sentence for this offender is four to six years imprisonment. The essence of the submissions of the offender is that the period of incarceration ought to be four years, i.e. the lowest end of the range, because she has no prior criminal record nor a record of driving violations, has support from her employer, family, friends and relatives, is extremely remorseful and a likely candidate for rehabilitation.

Crown Counsel submitted that the dominating sentencing considerations in this kind of case must be general deterrence and denunciation and that therefore, the sentence should be in the five to six year range. [ 4 ] In any sentencing decision involving a conviction under the Criminal Code , R.S.C., 1985, c. C-46, as amended, a Court is required to have regard to s.718 , 718.1 and 718.2 of the Criminal Code and the attendant case law authorities.

In order to apply sentencing principles, it is necessary to consider the circumstances of the offence and the circumstances of the offender, as well as the Victim Impact Statements provided in this case on behalf of each of the families of the deceased.

Circumstances of The Offence [ 5 ] The collision occurred at approximately 3:15 in the morning on January 8 th , 2012, when the offender drove her vehicle in a northerly direction along Shaganappi Trail NW in Calgary, entered the intersection of Shaganappi Trail NW and Country Hills Boulevard NW and collided with a vehicle driven by Arshdeep Singh Brar, killing him, as well as the passenger in the offender’s vehicle, Danielle Victoria Russell.

The lone survivor of the collision was the offender, Amie Nottebrock. [ 6 ] The speed limit governing northbound traffic on Shaganappi Trail at the time was 80 km per hour and the offender was travelling between 135 and 145 km per hour at the time of the collision. Prior to the collision the offender drove through the intersection of Northland Drive Northwest and Shaganappi Trail Northwest at a speed of 90 km per hour in a 70 km per hour speed zone. At the collision intersection visibility was clear, road conditions were dry and the intersection was well lit.

At the time of the collision, the offender had a blood alcohol concentration of between .222 to .270. The offender was clearly intoxicated at the time of the collision. Circumstances of The Offender [ 7 ] Following the conviction, a Pre-Sentence Report was ordered and provided to the Court. In addition, two psychology reports were provided, each dated October 8 th , 2014, one from Dr. Patrick Baillie and the other from Dr. Harry Miller. In addition, the offender presented the Court with nine letters of reference from relatives, family friends, and her employer. [ 8 ] The offender is now 28 years old.

She has parents, sisters, a grandfather, an aunt and an uncle who are extremely supportive of her plight while expressing sorrow for the families of the victims. The offender has a 14 month old son living with her and her common-law partner of two years. [ 9 ] Amie Nottebrock completed Grade 12 in Kelowna, British Columbia and then went to Mount Royal College in Calgary to attempt a Diploma in Social Work, but quit after completing approximately half the program. From September 2010 until the date of the collision, she was employed as a cosmetician for MAC Cosmetics.

Prior to that, she had employment at Lululemon Athletic in Calgary. Since March 2012, she has been employed at Fresh Air Experience in Kelowna. Since the collision, she volunteered for a Crisis Line and has indicated that the event motivated her to volunteer. She has had approximately 25 psycho-therapy sessions with Dr. Harry Miller in Kelowna to address depression, trauma, managing negative emotions and guilt. Dr. Miller states that the offender is making steady progress in those areas.

Her common-law partner also describes difficult emotional moments for the offender which he perceives arise from the offender’s feeling guilty about the things she has experienced. He also describes her as an amazing person and mother who is family oriented and selfless in her interactions with other people. The offender’s employer, who also provided a letter of reference, describes the extreme remorse and guilt that Amie Nottebrock felt after the collision. Similar observations were made by the offender’s sister, Lisa Nottebrock. [ 10 ] Dr.

Baillie, in addition to his interviewing the offender, did a psychological assessment, including testing. As the result of the testing, he concluded that the offender had average verbal and performance based skills, no indications of any deficits in executive functioning, was free from any major mental health problems and in particular does not have any problems related to abuse of alcohol or other drugs. Dr. Baillie also described the offender as genuinely remorseful, which was consistent with his consultation with Dr. Harry Miller.

He describes the offender’s likely incarceration as providing her with little benefit. Notably, the offender, in her interview with Dr. Baillie indicated she understands that there needs to be punishment. Dr. Baillie’s opinion is that the offender has very few of the risk factors associated with increased recidivism. Both of the offender’s parents are medical professionals. [ 11 ] When Ms.

Nottebrock addressed the Court during her sentencing hearing, she tearfully indicated that she was sorry for her actions, that she wished she could put herself in the shoes of the families and take away their pain but acknowledged that she could not. She indicated her actions were inexcusable and that she takes full responsibility for everything that happened. Victim Impact Statements [ 12 ] Two victim impact statements were entered as Exhibits at the sentencing hearing, one on behalf of the family of Arshdeep Singh Brar and the other on behalf of the family of Danielle Victoria Russell.

Martin Box read the impact victim statement with respect

to Dani Russell and described her as “our eldest daughter”. The family did not know Amie Nottebrock. Mr. Box and his wife were backin England to attend Dani’s grandmother’s funeral. The family had moved to Canada in 2009 from England. At the time of the accident,their youngest daughter, Harriett, 17 years old, was about to start school and Mr. Box and his wife were comforted that Dani, about toturn 21 in February 2012, would be at the home in Calgary to look after Harriett while their parents were in England. The news of Dani’sdeath was given to Harriett by the Calgary Police. Mr.

Box and his wife immediately returned to Calgary, missing the funeral of Mr.Box’s mother. They went through the trauma of identifying Dani Russell’s body and arranging another funeral. The younger daughterHarriett did not return to school for several weeks. The family has continuous feelings of loss and emptiness. The victim impactstatement Mr.

Box gave concluded by saying he hoped the Court would give the suffering of the family due consideration in dealingwith the case and delivering justice for this and future cases involving “the scourge of drunk driving”. [13] The Brar family was not in Court for the sentencing nor was Anoop Brar, the brother of the deceased, Arshdeep Singh Brar.The victim impact statement of Anoop Brar shows the devastation to the Brar family from the loss of Arshdeep. The statement is datedFebruary 17th, 2012, fairly recently after the collision.

Anoop describes his parents as having lost their appetite, any desire to socialize orgo outside the house, suffering from depression and anxiety, and a complete lack of interest by his father and mother in staying healthy.They suffer from emotional imbalance, depression, loss of appetite and sleeping problems. The impact on the family was morewidespread, the statement indicating that the extended families in Vancouver and India called regularly to share their stories about howArshdeep Brar’s death had changed their lives.

Criminal Code Sentencing Provisions [14] As indicated earlier, s. 718, 718.1 and 718.2 of the Criminal Code contain the principles of sentencing to guide a Court insentencing persons convicted in terms of general principles. [15] A number of sentencing objectives are delineated in s. 718 of the Criminal Code as a component of just sanctions that achievethe fundamental purpose of sentencing, which is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society.

The objectives are denunciation, general and specific deterrence, the separation ofoffenders from society where necessary, the rehabilitation of offenders, reparations for harm done to victims or to the community; alsothe promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community. [16] The proportionality principle, that is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender, is stated in s. 718.1.

Other sentencing principles are stated in s.718.2, indicating when a Court shouldincrease or reduce a sentence for any relevant aggravating or mitigating circumstances. Some deemed aggravating circumstances arestated. Further, this

section embodies what is described as the parity principle. That is, a sentence should be similar to sentences imposedon similar offenders for similar offences committed in similar circumstances. There is also an admonition that all available sanctionsother than imprisonment that are reasonable in the circumstance should be considered.

Section 255.1 is also relevant to this case. It statesthat where an offence is committed by means of a motor vehicle where the blood alcohol concentration of the offender at the time of theoffence exceeds 160 milligrams of alcohol in 100 millilitres of blood shall be deemed to be an aggravating circumstance relating to theoffence.

Case Law Authority [17] The Crown cited the following cases for consideration by the Court: R v Jacobs, (1982) 1982 ABCA 204 , 39 AR391 (Alta CA); R v Red Crow, (1985) 1985 ABCA 23 , 57 AR 317 (Alta CA); R v McVeigh, (1985) (ON CA),22 CCC (3d) 145 (Ont CA); R v Bernshaw, (SCC), [1995], 1 SCR 254 (SCC); R v Biancofiore (1997) (ON CA), 119 CCC (3d) 344 (Ont CA); R v Rhyason, 2007 ABCA 119; R v Stimson, 2011 ABCA 59; R v Honoroski, ABQBCalgary No. 9401 0623-CO Dec 15, 1994; R v Kummer, 2011 ONCA 39; R v Ramage, 2010 ONCA 488; R v Junkert, 2010 ONCA 549;R v Goodstoney, 1999 ABCA 110; R v Hughes, 2012 BCCA 87; R v Luskin, ONSC 1764. [18] Cited by the Defence are the following cases: R v Brough, (1993) 50 MVR (2d) 107; R v Recabarren, 2006 ABPC 109; R vGross, 2006 ABPC 353; R v Konkolus, (1988) 1988 ABCA 127 , 86 AR 144. [19] Cited by both the Crown and the Defence: R v Tschetter, 2009 ABPC 291; R v Olsen, 2011 ABCA 308; R v Coupal, 2010ABQB 229; R v Abraham, 2000 ABCA 159. [20] In addition, the Court has cited: R v Martin, 2013 ABQB 174; R v Pratt, 2014 ABQB 529; R v Morin-Leblanc, 2014 ONSC2056.

Review of Case Law Authorities

A) Crown Authority [21] Crown counsel indicated that a number of the authorities submitted were to demonstrate the principles and to attempt to fitthis case into the spectrum of sentencing, acknowledging the parity principle. At the same time, Crown counsel observed that no twocases have similar offenders and similar circumstances to the extent they are exact. [22] The Alberta cases of Jacobs and Red Crow emphasize what Mr. Box aptly described in his Victim Impact Statement as “thescourge of drunk driving”.

Jacobs emphasizes culpability in terms of not only the driving error but also the antecedent conduct of drivingwhile impaired: para. 15. Red Crow emphasizes the need for public deterrence being even “greater today”: para. 13. Those words were

stated in January 1985. The Ontario Court of Appeal in McVeigh, a case of criminal negligence causing death, also emphasizes generaldeterrence and that every “drinking driver is a potential killer”: para. 12.

The Crown also referred to a statement from the Supreme Courtof Canada, in Bernshaw in 1995, where the Court, relying on Statistics Canada, characterized drunk driving as a crime “which causes themost significant social loss to the country”: para. 22. [23] The Ontario Court of Appeal in Biancofiore set forth a proposition that general deterrence is the paramount objective insentencing drinking and driving offences, especially where serious consequences result: para. 19.

In Biancofiore, denunciation is alsodiscussed as satisfying the desire of the community in its need to condemn the conduct of a particular offender (para. 25), denunciationalso serves the purpose of transmitting a positive message by communicating and reinforcing a shared set of values: para. 25. Further inBiancofiore, the Court dealt with the concept of proportionality, that is the gravity of the offence and the degree of responsibility of theoffender as stated in s.718.1 of the Criminal Code.

Moral culpability was described in Biancofiore as high because of the risk takingbehaviour in the manner of driving and consequential harm: para 31. Retribution incorporates a principle of restraint, unlike vengeance,and must represent an objective, reasoned and measured component of punishment: para 30. These concepts are also contained inRhyason at paras. 31, 32; Coupal at para. 11.

In Stimson, denunciation and deterrence are described as “the dominant objectives ofsentencing in the context of impaired driving causing death”: para. 21. [24] The Crown then moved to a consideration of specific terms of incarcerations for various offences beginning with Honoroski,which involved two deaths and charges of dangerous driving causing death and impaired driving causing death resulting in a sentence ofseven years.

In that case, the offender had a lengthy criminal record, including previous convictions for dangerous driving and twoseparate convictions for driving over .08 as well as a careless driving conviction under the provincial statute. [25] In Abraham, the sentence for impaired driving causing death was five years, reduced from seven years, largely on the basis ofthe parity principle: para. 7. In Olsen, a husband and wife were killed and five children orphaned as the result of a speeding, highlyintoxicated offender. His blood alcohol level was .226 and he pleaded guilty to two counts of impaired driving causing death.

He wassentenced to 3½ years imprisonment on the basis that this was the increase asked for by Crown counsel from the 27 months sentence ofthe trial judge. [26] The Ontario Court of Appeal in Kummer affirmed a global sentence of eight years involving three deaths and 10 charges towhich the offender plead guilty. The charges included two counts of dangerous driving and two counts of impaired driving, each causingbodily harm.

The Ontario Court of Appeal distinguished Ramage and Junkert, involving lesser sentences, on the basis that there werethree deaths in Kummer (para. 23) and a significant driving record: para. 25. [27] In Ramage, the offender collided with two other vehicles, killed his passenger and the driver in another vehicle. He wasconvicted of impaired driving causing death and bodily harm as well as dangerous driving causing death and bodily harm and drivingover .08. The total sentence was four years with a five year driving prohibition.

In Ramage, the Court had regard to McVeigh, where afirst offender received a three year sentence. Also in Ramage, the blood alcohol reading of the offender at the time of the collision asbeing between .247 and .292. The Court said at para. 76: The danger created by the Appellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing ahandgun at random.

The community quite properly demands that the Courts denounce and deter such reckless and dangerous conduct.Significant incarceration is the remedy that most emphatically achieves these goals. [28] In Ramage, the Appellant was found to be a first time offender, an outstanding member of the community, had significantletters of reference, was regarded as a dedicated father and husband.

Moreover, the family of the deceased had forgiven him and hadasked the trial judge not to incarcerate him: para. 77. [29] The Ontario Court of Appeal, in Junkert, affirmed a five year sentence for impaired driving causing death and dangerousdriving causing death, as well as a ten year driving prohibition. In this case, the offender was proceeding at 90 to 93 km per hour in a 50km per hour posted speed limit and had blood alcohol concentration at the time of the collision with another vehicle of between .130 and.170. There was no previous criminal record.

But there was a negative Pre-Sentence Report including the lack of genuine remorse, whichconclusion was questioned by the Court. [30] Goodstoney was a case of four deaths, an aboriginal offender and a conviction pursuant to an early guilty plea of four countsof criminal negligence causing death. The Alberta Court of Appeal emphasized that the degree of harm resulting is a relevantconsideration “to weigh” (para. 18) including the number of persons injured or killed but cautioned there is no mathematical formula.These comments were largely in response to an

interpretation of R. v. Mellstrom (AB CA), [1975], 3 WWR 385 (AltaCA) and passage in it at page 399 where Allen JA had said in part: “... the fact that three people were killed should not be permitted tomagnify the offence in the minds of the judges over its sufficiently serious nature, if only one person had been the victim.” Goodstoneywas an 18 year old first time offender and the Court of Appeal affirmed a five year sentence imposed by the sentencing judge. [31] Tschetter resulted in a sentence of seven and half years.

He was convicted of five counts of “criminal negligencemanslaughter” and one count of willfully attempting to obstruct justice by attempting to destroy evidence. The sentencing judge foundthe offender was genuinely remorseful. The accident involved the offender driving a cement truck and hitting a stopped victims’ vehicleat a speed of 120 km per hour in an 80 km per hour speed zone. After the collision, he attempted to obstruct justice by trying to destroy abottle of Vodka, from which he had taken a drink, by throwing it in the hopper of his cement truck.

The offender had no previouscriminal record of any kind, but a lengthy record of provincial driving offences. He had offered to plead guilty to criminal negligencecausing death which offer was not accepted by the Crown which would have attracted the same sentence.

After reviewing a considerablenumber of case authority, the learned Provincial Court Judge found that the sentence should be at the high end of the spectrum because,compared to circumstances of other case precedent, “the gravity of the driving, the tragic results in the moral culpability andblameworthiness of the offender put this in the realm of a worst case scenario”: para. 32. [32] In Hughes, another case involving four deaths, the offender was sentenced to six years imprisonment for criminal negligencecausing death and in addition, another count of criminal negligence causing bodily harm and four counts of failing to stop and offer

assistance to persons involved in an accident. The 28 year old appellant had no criminal record but had a “lengthy relevant driving record” (para. 7) which included 16 violations and 4 after the date of the accident on January 28 th , 2006. There were many serious aggravating factors. [ 33 ] Luskin , from the Ontario Superior Court, involved three deaths and an eight year global sentence. There were guilty pleas to three counts of criminal negligence causing death and two counts of impaired driving causing bodily harm.

Just prior to the collision in question when the accused drove his BMW into a mini-van, he was travelling at 181 km per hour and his blood alcohol concentration at the time of the collision was between .122 and .157. The offender had support from his family and apologized at the sentencing hearing. Justice Trotter noted that sentences stressing the importance of deterrence and denunciation have increased over the years: para. 20. One of the aggravating factors found by the sentencing judge included finding that the offender’s driving was “atrocious”: para. 25.

The speed limit was 60 km per hour and he was driving at 180 km per hour. The offender also had a prior criminal record but it was unrelated but he also refused to provide a sample of his breath following the collision.

B) Offender Authority [ 34 ] The offender’s counsel referenced Alberta case law. In distinguishing Tschetter , he reviewed paras. 16 and 18 and the aggravating factors in that case. They included extreme antecedent dangerous driving of the offender as opposed to a “one off”, or one momentary reckless error of judgment; the nature of the vehicle, a cement truck, weighing ten times the weight of the victims vehicle; the number of victims. He also had a lengthy driving record from 1980 to 2003 including nine driving convictions for speeding, going through stop signs, disobeying traffic signs and more: para. 18.

Similarly, with Coupal , the offender’s counsel pointed out that Coupal had a driving record which included an alcohol related conviction and a criminal record of driving over .08 and described him as clearly having an alcohol problem: para. 14. [ 35 ] Also referred to by the offender’s counsel was Olsen where the Court of Appeal dealt with a first time offender with no criminal record of any kind who was “deeply remorseful”: para. 4. That offender pleaded guilty. He did have a significant driving record, 16 offences in five years before the collision and a driving suspension.

The sentencing judge had reduced the sentence down from three years because of the conditions of his release, which the Court of Appeal found unwarranted. In sentencing the offender afresh, the Alberta Court of Appeal substituted a sentence of three and a half years imprisonment. He had the support of his family as well. Further Authority [ 36 ] The Court also had regard to Martin, Pratt, and Morin-Leblanc. [ 37 ] In Martin , the offender was convicted, after a trial, of dangerous driving causing death. The Crown was seeking five years’ incarceration and a ten year driving prohibition.

While on release for the subject offence, Martin was convicted of a number of driving offences, as well as driving over .08 and driving while prohibited. The Pre-Sentence Report and Psychological Report demonstrated Martin had a lack of insight into his actions. The subject offence did not involve alcohol and the offender was very remorseful. He was married with two children and had the support of his family.

The sentence imposed by Justice Gill was four and a half years and a ten year driving prohibition from the date of his release. [ 38 ] In Morin-Leblanc , a decision of the Ontario Superior Court, the offender was found guilty of criminal negligence causing death and impaired driving causing death, refusing to provide a breath sample. The offender had driven the wrong way down a street in Ottawa and struck a pedestrian as she was crossing the street. A strong odour of alcohol came from the offender who admitted drinking but refused to provide a sample of his breath.

He was 28 years old, single, had the support of his mother and was a first time offender. He had letters of support from his employer and 25 psychotherapy sessions. The Crown asked for a sentence of seven years imprisonment plus a ten year driving prohibition and a DNA Order pursuant to s.487.04 of the Criminal Code . The sentence was three years imprisonment for impaired driving causing death and three years’ imprisonment for criminal negligence causing death concurrently, as well as one year imprisonment consecutive for failure to provide a breath sample.

There was also an Order for a ten year driving prohibition and an Order to provide a DNA sample. [ 39 ] More recently, in Pratt , Justice Belzil convicted the offender of three counts of manslaughter and three counts of impaired driving causing death. At 2:45 am on November 2011 the offender was travelling at a speed of 199 km per hour in a posted speed limit area of 70 km per hour when he struck another vehicle going the same direction from the rear killing the three occupants of the struck vehicle.

The blood alcohol concentration at the time of the collision was no less than .20 and the Crown was seeking 10 years imprisonment. The offender was aboriginal and received a generally positive Pre-Sentence Report indicating the offender was remorseful. He was 31 years of age, gainfully employed. The Gladue Report referenced a multi-generational history of alcoholism, but the offender had not consumed any alcohol since November 2011. The mitigating factors so found were that the offender had no prior criminal record, a generally positive Pre-Sentence Report and was generally remorseful.

The sentence imposed for the three counts of manslaughter was five years and the three counts of impaired driving causing death was three years to be served concurrently. He was required to submit a DNA sample, there was a weapons prohibition for a period of ten years pursuant to s.109 of the Criminal Code and a driving prohibition for a period for life but after five years the offender could apply for admission into an alcohol ignition device program. The victim fine surcharges were waived. Aggravating And Mitigating Factors [ 40 ]

A) Aggravating 1. The blood alcohol concentration of the Offender at the time of the collision, .222 - .227

2. The extreme high speed of 135 km per hour in an 80 km per hour zone. 3. The complete absence of any evidence of braking. 4. Going through a red light. 5. The antecedent conduct of speeding at a previous intersection going 90 km per hour in an 70 km per hour zone. 6. There was more than one death. [ 41 ]

B) Mitigating Factors 1. The extreme remorse of the offender. 2. The relatively young age of the offender. 3. The acknowledgement by the offender of responsibility and the acknowledgement of the need for punishment. 4. The offender is at a very low risk to reoffend. The Sentence [ 42 ] Before passing sentence, I wish to address the families of the victims and the offender. Judges in this country are bound to be impartial and they are bound to apply the law, which in this case, means the Criminal Code provisions regarding sentencing, as well as binding and persuasive case law authority.

Nothing the Court can do can restore the lives taken. All the Court can hope to do is to render an impartial sentence that is just for the offender, for the victims, for the community, and for our society. I have considered all of the factors present in this case including the provisions of the Criminal Code , the case law authority, the circumstances of the offence and the circumstances of the offender. Accordingly, the period of incarceration to be served by Amie Nottebrock will be four and a half years imprisonment. Crown counsel submitted that a driving prohibition of 10 – 15 years was required in this case.

I have reviewed all of the case authorities as well as the provisions of s.259(2)(a.1) and find no provision that a driving prohibition is mandatory under the Criminal Code . It is discretionary.

In light of all of the circumstances of this case, particularly the extreme remorse and low risk of reoffending, the offender will be prohibited from driving upon her release for a period of five years. [ 43 ] Crown counsel also pointed out that the offender has been convicted of a secondary designated offence as defined in s.487.04 of the Criminal Code and may be ordered to provide a sample of her DNA pursuant to s.487.05 of the Criminal Code. Crown counsel suggested that such an Order was discretionary.

The Court is not satisfied that the offender need provide a sample of her DNA for forensic analysis in light of all the circumstances of this case and I decline to make such an Order. As agreed by counsel, there will be no victim fine surcharge. Heard on the 17 th day of October, 2014. Dated at the City of Calgary, Alberta this 3 rd day of November, 2014.

Neil Wittmann C.J.C.Q.B.A. Appearances: Jonathan W. Hak, QC for the Crown Alain Hepner, QC Gloria Froese for the Accused