R v Montoya, 2016 ABQB 660

Court of Queen’s Bench of Alberta Citation: R v Montoya, 2016 ABQB 660 Date: 20161125 Docket: 150536233Q1 Registry: Calgary Between: Her Majesty the Queen - and - Ali Alejandro Montoya _______________________________________________________ Reasons for Sentence of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] The offender, Ali Alejandro Montoya, caused the death of two people and injured a third person by driving a motor vehicle while impaired and speeding.

The fatal collision occurred at the intersection of Macleod Trail and 12 th Avenue SE in Calgary on May 2 nd , 2015 at approximately 1:56 a.m. Three vehicles were involved in the collision: the vehicle the offender was driving, a 2008 Cadillac Escalade, a 2015 Toyota Prius Taxi and a 2007 Honda Civic. [ 2 ] The offender pleaded guilty to two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Circumstances of the Offence [ 3 ] The offender and two of his friends, passengers in the Cadillac, attended a nightclub and consumed alcohol. The group left the nightclub at approximately 1:40 am on May 2 nd , 2015 with Montoya driving the Cadillac. The nightclub was located east of Macleod Trail on Centre Street S.E. The Cadillac was travelling north on the Macleod Trail. The collision occurred at the intersection of 12 th Avenue SE and the Macleod Trail after the Cadillac entered the intersection against a red light speeding at a rate of 95 kilometers per hour.

Two and a half seconds before the collision, the Cadillac was speeding at a rate of 123 kilometers per hour. The posted speed limit for northbound Macleod Trail traffic was 60 kilometers per hour. [ 4 ] The Honda vehicle was operated by Silas Mang who was alone in his vehicle. The Prius Taxi was operated by Amritpal Kharbanda, a professional taxi driver. He had one passenger, Jillian Lavallee, in the front passenger seat. [ 5 ] Prior to the collision, the Honda was stopped for a red light on eastbound 12 th Avenue SE, west of the Macleod Trail.

The Prius Taxi was eastbound on 12 th Avenue SE approaching the Macleod Trail when the signals changed to green for eastbound traffic. When the Prius Taxi entered the intersection, pursuant to the green traffic signal, it was violently struck on its right side by the Cadillac, which had deflected slightly to its right as the result of an initial impact with the Honda on the Cadillac’s front driver side wheel. The Cadillac struck the passenger side of the Prius Taxi on the front passenger door.

The Prius Taxi was driving at a speed of 33 kilometers per hour when it was struck by the Cadillac. [ 6 ] The Prius Taxi mounted the sidewalk on the driver’s side and struck a lamp post. The lamp post was sheared off at its base and the intrusion into the taxi’s interior was significant. [ 7 ] Montoya suffered only minor injuries as the result of the collision. Mr. Mang suffered a mild concussion and was taken to Foothills Hospital and released later in the afternoon of May 2 nd , 2015. Mr.

Kharbanda, the professional taxi driver, suffered multiple blunt force trauma injuries as the result of the collision and was taken to the Foothills Hospital. He was pronounced dead at 2:51 am on May 2 nd , 2015. [ 8 ] Ms.

Lavallee also suffered multiple blunt force trauma injuries and was also taken to the Foothills Hospital where she received urgent medical care but succumbed at 2:14 pm on May 2 nd , 2015 when she died as the result of injuries suffered in the collision. [ 9 ] Prior to the collision while travelling north on Macleod Trail, the Cadillac was also speeding at a rate of 85 kilometers per hour in a 60 kilometer zone at the intersection of Macleod Trail and 25 th Avenue SE, south of the collision intersection.

When the Cadillac entered the intersection where the collision occurred, 12 th Avenue SE, the traffic signal governing northbound Macleod Trail traffic had been red for 5.81 seconds. There were no adverse weather or road conditions which in any way affected the driving or the collision. [ 10 ] On May 2 nd , 2015, at the time of the incident, Montoya and his front seat passenger were both holders of Learner’s Operator’s Licenses as defined by the Operator Licensing and Vehicle Control Regulation, Alta Reg. 320/2002 (the Regulation).

A learner driver and holder of a Learner’s Operators License was not, at the relevant time, permitted to drive a motor vehicle unless there was a supervising person in the vehicle who was the holder of a Operator’s License that was not classified as a Learner’s Operators License: s 51(

e) of the Traffic Safety Act , RSA 2000, c T-6. Montoya was not, in any event, entitled to drive a motor vehicle during the period between midnight and 5 am: s 32(5) of the Regulation. Montoya was subject to suspension of his Learner’s License if any alcohol was present in his blood: s 90(4) Traffic Safety Act. [ 11 ] After the collision, a Police Officer noted Montoya’s speech was slow and slurred, his eyes were glazed and he smelled alcohol coming from Montoya’s breath.

Similar observations about the smell of alcohol from Montoya came from the Emergency Medical Services officer who attended at the scene of the collision. [ 12 ] As the result of a blood samples taken from Montoya at the hospital, pursuant to a blood warrant and for medical purposes, expert uncontested testimony showed that Montoya’s blood alcohol concentration was between 97 mg to 130 mg of alcohol per 100 ml of blood at 1:56 am, the time of the collision. No alcohol was consumed by Montoya after leaving the nightclub.

The expert testimony tendered in writing by agreement included opinion evidence with respect to the effect of alcohol as it relates to ability to drive a motor vehicle. [ 13 ] The consumption of alcohol adversely affects all of the motor and mental acuity functions necessary to operate a motor vehicle. There is a deterioration of sensory and mental functions at any concentration more than .05. The degree of impairment increases with the degree of concentration of alcohol in the blood.

The expert opinion was that all individuals are impaired in their ability to operate a motor vehicle, regardless of their level of tolerance, in any reading over .10. In addition, a loss of inhibitions and increase in self-confidence due to the consumption of alcohol are associated with a disregard of the rules of the road and an increase in risk taking behaviour. [ 14 ] The opinion evidence is consistent with Montoya’s indication in the Forensic Assessment and Outpatient Services (“FAOS”) Report, prepared by Dr.

Baillie, to the effect that he was speeding because he wanted to see his girlfriend, that he didn’t feel like he was impaired, that he and his passengers were “all fine” and singing and that he followed the advice of one of his back seat passengers who encouraged Montoya to drive through a red light. Circumstances of the Offender [ 15 ] Much of the information made available to the Court about the circumstances of the Offender comes from the FAOS Report

prepared by Dr. Baillie, a psychologist who did a psychological assessment in respect of Montoya at the request of the Court. [ 16 ] Montoya was slightly over 20 years old at the time of the offense. Montoya moved to Canada when he was five or six years old with his mother, step-father and half-brothers. He has a permanent resident status in Canada and is one credit short of earning his high school diploma. He was not a particularly good student, but found work as a labourer after leaving high school.

He spent some time in Mexico living with an older step brother for six months and returned to Canada in February 2014. Thereafter, he worked for a concrete company, a drywall company, up until the time of the offence. Since his arrest and release, he has not found steady employment. [ 17 ] Montoya was detained at the Calgary Remand Centre for approximately one month after his arrest and has been compliant with his release conditions since then. Montoya denies ever having a drinking problem and has not had a drink since the date of the offence.

He is physically healthy but lacks motivation and presents symptoms consistent with depression and anxiety. Montoya expressed remorse for the offence and continues to minimize the effect of alcohol on his ability to drive appropriately on the morning in question.

He acknowledges he did wrong, that he was irresponsible and that he should not have driven. [ 18 ] Psychological testing confirmed symptoms indicating depression, but no indications of any major mental health problems were evident. [ 19 ] The FAOS Report concludes that Montoya had little experience with the effects of alcohol at the time of the offence, did not have a developed tolerance for alcohol and had poor self-awareness of how alcohol might impact his decision making abilities. Dr.

Baillie concludes that there are no widely accepted risk assessment measures relevant to the type of offences Montoya pleaded guilty to, but concludes Montoya is likely to be at a relatively low risk for re-offending. Victim Impact Statements [ 20 ] Neither Mr. Mang, nor anyone else, presented or read a Victim Impact Statement on his behalf. Mr. Kharbanda’s survivors presented 10 Victim Impact Statements, five of which were read. Ms. Lavallee’s survivors presented 15 Victim Impact Statements, 12 of which were read. All written Victim Impact Statements were entered as Exhibits at the Sentencing Hearing.

Amritpal Kharbanda [ 21 ] Mr. Kharbanda’s daughters, Japnoor, Rishamjot and his wife, Harpreet Kharbanda, all gave statements. So did a number of family friends. The devastating impact of the death of Amritpal Kharbanda is evident from the statements. They describe Mr. Kharbanda as an artist, chef, businessman and a loving, caring father and husband. They refer to the pain, loss, grief and despair of the family members. The family had immigrated to Canada a few years prior to the collision and had earned Canadian citizenship.

It is evident that that citizenship was cherished with pride by Amritpal Khrabanda, as well as his family, perhaps far more than Canadians born here. Now, life is a struggle, economically and socially. The friends of the family corroborate the devastation and effect on the family of Amritpal Kharbanda in every way. Jillian Lavallee [ 22 ] Victim Impact Statements were tendered and some were read by Jillian’s mother, her aunt, cousin, friends, sister, brother-in- law and father. Ms.

Lavallee’s mother and father were in Montana at the time of the collision, but managed to come back to Calgary to be with her while she was sustained for a few hours on life support until the afternoon of May 2 nd , 2015. Their description, and that of her sister attending at the hospital, is woefully tragic as is the aftermath of a shattered family. Ms. Lavallee was obviously a talented, vivacious, responsible young woman with an infectious laugh. Ms. Lavallee’s life was cut short at 25 years of age. Especially poignant in the Victim Impact Statements of some of Ms.

Lavallee’s survivors is a reference to the tragic irony of parents instilling in their children the requirement to “make good choices”. Ms. Lavallee’s choice on the early morning hours of May 2 nd , 2015 was not to drive, but rather take a taxi, because it was the right thing to do. As is stated in the Victim Impact Statement, Ms. Lavallee is no longer with us because someone else made the wrong choice: that is, elected to drive when he ought not to have.

Letters of Reference for Montoya and Montoya’s Statement [ 23 ] Letters of reference on behalf of the offender were tendered by consent from the Associate Pastor of his Church, the father of one of his friends, and other friends of the family. Most were fully aware of, and had knowledge of, the incident involving impaired driving and speed causing death in May of 2016. A common theme emerged from the letters to the effect that Montoya’s conduct on the date of the incident was out of character.

He is described as a respectful son to his parents, a community participant in soccer and in coaching younger children. [ 24 ] Montoya’s own statement was tendered in writing and read to the families of Ms. Lavallee and Mr. Kharbanda in Court. He offered his sincere apology and acknowledged the difficulty faced by the victim’s families. He stated that he “was young, stupid, irresponsible and extremely selfish when [he] decided to step behind the wheel that night.” He expressed deep remorse and guilt and said that he wishes it had been his life taken instead of the loved ones of the families.

He further stated that if he had an opportunity to take their places, he would. Sentencing Principles [ 25 ] The governing sentencing principles are set forth in ss. 718 , 718.1 and 718.2 of the Criminal Code . These sections contain the

general principles of sentencing including the objectives and fundamental purpose of sentencing. A number of other principles are mandated, including proportionality and parity. [ 26 ]

Section 718 has in its

preamble, the fundamental purpose of sentencing namely, the protection of society and the contribution of sentencing to respect for the law as well as crime prevention and the maintenance of a just, peaceful and safe society.

To achieve this purpose a number of objectives are stated which include denunciation, not only of the unlawful conduct, but also the harm done to victims or the community at large; general and specific deterrence; the separation of offenders from society where necessary; rehabilitation of offenders; reparations for harm done; and the promotion of a sense of responsibility in offenders and acknowledgement of the harm done to the victim or victims and the community. [ 27 ]

Section 718.1 states a fundamental principle of sentencing is that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 mandates that a court take into consideration a number of other factors which may increase or reduce a sentence having regard to aggravating or mitigating circumstances relating to both the offence and the offender. This

section also articulates the parity principle that a like sentence ought to be imposed on similar offenders for similar offences in similar circumstances. Joint Submission Principles [ 28 ] The Crown and defence made a joint submission to the Court as to what the sentence should be: 4½ years’ imprisonment as a gross sentence, less 45 days credit to account for the one month the offender spent in Remand, for a net sentence of 4 years, 4½ months. Further, as allowed by s 259(2)(a.1) of the Criminal Code , a driving prohibition is discretionary in the court.

The parties agreed that the driving prohibition in this case should commence upon the release of the offender and should have a duration of five years. [ 29 ] A recent case from the Supreme Court of Canada, R v Anthony-Cook , 2016 SCC 43 sets forth the sentencing principles and procedure to be followed by a trial judge following a guilty plea and a joint submission from Crown and defence counsel. [ 30 ] In that case the trial judge departed from a joint submission which gave rise to the dispute.

Moldaver, J speaking for the court stated that “Resolution discussions between Crown and defence counsel ... are not only commonplace in the criminal justice system, they are essential”: para 1. The court also articulated that the practice of the Crown and defence agreeing to recommend a particular sentence to a trial judge in exchange for the entry of a plea of guilty, is a recognized subset of resolution discussions and an acceptable practice which helps to resolve many of Canada’s criminal cases: para 2.

Thereafter, the court indicated that joint submissions are not sacrosanct and that trial judges have an ability to depart from them: para 3. [ 31 ] It is obvious, not only from Anthony-Cook but in other jurisprudence binding on this Court, that a trial judge presented with a joint sentencing submission is never to rubber stamp it. Anthony-Cook puts forward a new test. The joint submission must no longer be considered in the context of whether the sentence is “fit”.

The test is to consider whether the joint submission proposes a sentence that “would bring the administration of justice into disrepute or would otherwise be contrary to the public interest”: para 5. [ 32 ] The court in Anthony-Cook discusses two kinds of fitness tests. One that a trial judge should give joint submissions serious consideration but may depart from the joint submission having regard to the circumstances of the case and sentencing principles should it be concluded that the proposed sentence is not “fit”: para 27.

The other “fitness” test is that a trial judge should not depart from a joint submission unless it is concluded that the sentence proposed is “demonstrably unfit” R v Lacasse , 2015 SCC 64 . In Anthony-Cook , the court described the latter as a “more stringent test”.

The third test discussed in Anthony-Cook and adopted by the Court is the “public interest” test which mandates no departure from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or otherwise be not in the public interest: para 29. [ 33 ] Anthony-Cook opted for the “public interest” test because the Court had regard to the many benefits joint submissions bring to the criminal justice system and the need for a high degree of certainty.

In explaining what “the public interest” means, the Court relied on two decisions: R v Druken , 2006 NLCA 67 and R v B.O.2 , 2010 NLCA 19 . In quoting Druken , the court in Anthony-Cook said that a sentence will not be in the public interest if the sentence is “so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system”: para 33.

In the same paragraph, the court also referred to B.O.2 at para 56 where the phraseology was that trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. [ 34 ] In Anthony-Cook the court offered guidance for trial judges as follows: first, the approach ought to be that the joint submission is on a “as is basis”.

That means that the public interest test is to be applied whether the judge is considering varying a proposed sentence or adding something to it that the parties haven’t mentioned but cautions that of course a mandatory order ought to be something the judge should advise counsel of during the hearing: para 51. [ 35 ] The second and third parts of the guidance offered references the situation where a judge may be considering “jumping” or “undercutting” a joint submission or facing a contentious joint submission.

Authorities [ 36 ] The parties and the Court referred to the following authorities during the sentencing hearing: R v Anthony-Cooke , 2016 SCC 43 ; R v Nottebrock , 2014 ABQB 662 ; R v Gibson , 2015 ABCA 41 ; R v Stimson , 2011 ABCA 56 ; R v Olsen , 2011 ABCA 308 ; R v Tschetter , 2009 ABPC 291 ; R v Coupal , 2010 ABQB 229 ; R v Gross , 2006 ABPC 353 ; R v Lacasse , 2015 SCC 64 ; R v Flight , 2014 ABCA 380 ; R v Ramage , 2010 ONCA 488 ; R v Purtill , 2013 ONCA 692 ; Sahaluk v Alberta , 2015 ABQB 142 ; R v Arcand , 2010 ABCA 363 .

Analysis [ 37 ] With the release of Anthony-Cook on October 21 st , 2016, this Court is bound to apply the public interest test when faced with a joint submission. It was not argued before me that the previous fitness tests, as described in Anthony-Cook in either of its iterations ought to apply, notwithstanding Moldaver J’s indication that the fitness tests are not as stringent as the public interest test. In this case, I do not think it matters.

Applying the public interest test, I must consider whether the proposed sentence, namely 4½ years, would bring the administration of justice into disrepute or would otherwise not be in the public interest. Here, I find that the test is met. [ 38 ] Regardless of a joint submission, a Court is still obliged to craft a sentence according to sentencing principles. The proportionality principle in s 718.1 is particularly salient. That is, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In Arcand , this principle was discussed extensively, including the meaning of the gravity of the offence: para 57 and the degree of responsibility of the offender: para 58. [ 39 ] Sentencing in this country is still an individualized process and in considering a joint submission it is still helpful to measure the proposed sentence against the proper application of sentencing principles to ensure that a sentencing range is generally respected.

This engages the parity principle and involves looking at similar cases, that is, similar offences and similar offenders; the penalties imposed on similarly situated offenders in similar circumstances. [ 40 ] Also, s.718.2 requires a consideration of aggravating and mitigating circumstances. Here, the aggravating circumstances include excessive speed, blatant disregard for traffic signals by proceeding through red lights, drinking to the extent that the offenders’ blood alcohol exceeded .08 at the time of the offences; impaired judgment and risk taking behaviour.

Further aggravating factors are driving with a Learner’s Operator’s License during a time when the operation of a vehicle by a holder of a Learner’s Operator’s License was not permitted, namely after midnight. Also driving without a passenger in the front seat who held a valid Operator’s License, not a Learner’s Operator’s License.

Also, Montoya drove with alcohol in his blood. [ 41 ] Mitigating factors include an early guilty plea, a sincere expression of remorse, the young age of the offender and a low risk to re-offend. [ 42 ] A brief review of the authorities presented suggests that the proposed sentence of 4½ years imprisonment is within an acceptable range. In particular, Nottebrock , where the sentence was 4½ years imprisonment and a five year driving prohibition upon release.

That case also involved two deaths, excessive speed at night, running a red light at an intersection and a blood alcohol exceeding .16, a statutorily deemed aggravating factor pursuant to s 255.1 of the Criminal Code . As here, the offender had no criminal record. She was also young, expressed remorse and was at a very low risk to reoffend. [ 43 ] In Purtill , the offender was convicted of criminal negligence causing death and impaired driving causing death resulting in the death of a five month old baby and breaking the mother’s back.

The offender had a dated criminal record for impaired driving and the sentence was six years’ imprisonment. [ 44 ] In Ramage , the passenger in the offender’s motor vehicle was killed and the driver in another car injured. There was a trial and the accused was convicted of impaired driving causing death, dangerous driving causing death and bodily harm and driving over .08. The global sentence was four years imprisonment.

The accused’s blood alcohol which was extrapolated to the time of the accident as between .212 and .282 at the time of the incident. [ 45 ] In Lacasse , a guilty plea was entered to two counts of alcohol impaired driving causing death and two of his passengers died instantly in a single vehicle accident. At the time of the sentencing hearing, the offender was 20 years old and he did not have a criminal record but did have three speeding offences. [ 46 ] The offender was sentenced to 6 years 6 months in prison.

The Supreme Court of Canada in its decision referred to the sentence imposed by the sentencing judge as “severe” but noted that it fell within the overall range of sentences normally imposed in Quebec and elsewhere in the country and was not demonstrably unfit: para 105. [ 47 ] In Gibson , the Court of Appeal of Alberta affirmed a trial judge’s sentence of 2 years 8 months for impaired driving causing death, after the trial judge rejected a joint submission of two years. There was a guilty plea. The blood alcohol at the time of driving was between .17 and .18 and the offender was 22 years old at the time.

The Court was careful to note that there was no cross appeal of the sentence by the Crown and that it seemed “necessary to add that appellate affirmation of a sentence below the range does not reconfigure the range”: para 27. [ 48 ] In Stimson , a 19 year old rolled a vehicle killing a passenger. A guilty plea was entered. The offender was aboriginal. The offender was sentenced to a 90 day intermittent period of incarceration with a two year probation and a three year driving prohibition.

The Court of Appeal described the appropriate range of sentence in the case before them as between two and four years and increased the sentence to two years less a day. [ 49 ] In Olsen , the offender was 22 years old with no previous criminal record but a number of traffic offences including four licence suspensions. He pleaded guilty and was convicted of two counts of impaired driving causing death.

His blood alcohol was about .226 and he drove at speeds in excess of 85 kilometers per hour in a 65 kilometers per hour speed zone and went through a red light striking a vehicle travelling through the intersection killing both occupants. He was sentenced to 27 months with a five year driving prohibition. The Court of Appeal substituted a sentence of 3½ years imprisonment, noting that it could have been higher referencing the parity principle: para 14.

[ 50 ] In Tschetter , the offender was driving at 130 kilometers per hour in an 80 kilometer zone swerving, driving a cement truck weaving in and out of traffic, entered an intersection on a red light without slowing or breaking, rammed the victim’s vehicle from the rear and destroying it. A conviction for five counts of criminal negligence, manslaughter pursuant to s 236 of the Criminal Code resulted. The sentence was 5 years 6½ months imprisonment. There were five deaths.

The offender had no criminal record but a number of driving convictions and expressed genuine remorse. [ 51 ] Coupal involved an offender in leaving a pub in an intoxicated state and driving across a center median and killing a pedestrian and injuring two others. He pleaded guilty to a number of offences including one count of impaired driving causing death. The sentence was four years. [ 52 ] In Gross , there was a global sentence of two years less a day imposed after the offender pleaded guilty to two counts of impaired driving causing death and bodily harm.

The offenders’ blood alcohol level at the time of the event was between .22 to .24. The Court recognized that the appropriate range of sentence was 2½ - 5 years. The offender’s sentence was two years less a day “to account for the unique personal circumstances of the accused”. The offender was a member of a Hutterite Colony, had a reclusive lifestyle and would suffer in a penitentiary: para 40. [ 53 ] In Flight , a head on collision occurred when the accused left the golf course after drinking alcohol. On appeal, the Court reduced the five year sentence for impaired driving causing death to four years.

The offender was 43 years old and he had two dated convictions for impaired driving and several recent speeding convictions. The Sentence [ 54 ] Before a pronouncement, I wish to address the families of the victims. What you have witnessed and heard at the sentencing hearing has hopefully given you some insight into the process. Your view of the sentence understandably may be disappointing. But nothing the Court can do will bring back your loved ones. If the Court thought a more severe sentence would better achieve sentencing principles and objectives, it would impose it.

Sadly, general deterrence, when it comes to drinking and driving, has not to date proven to prevent the carnage on our roads and highways caused by drinking and driving. The Court is obliged to respect sentencing principles and has done so in this case. Therefore, the sentence is 4½ years imprisonment less 45 days credit for pre-trial custody. The net sentence is 4 years, 4½ months. Upon Montoya’s release, he will be subject to a five years’ driving prohibition pursuant to s 259(2)(a.1) of the Criminal Code . [ 55 ] The Court is obliged to levy a victim surcharge of $200.00 on each count in the indictment.

In default of payment in respect of each $200.00 surcharge, the offender will serve 2 days in prison. There will be no time to pay. All default times will be served concurrently with the sentence imposed today. Heard on the 2 nd day of November, 2016. Dated at the City of Calgary, Alberta this 25 th day of November, 2016. Neil Wittmann C.J.C.Q.B.A. Appearances: Kevin Doyle Scott Wilson for Her Majesty the Queen Alain Hepner, Q.C.

Kelsey L. Sitar for the Offender