2023 QCCQ 2907, 2023 QCCQ 2907

R. c. Manhertz 2023 QCCQ 2907 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “ Criminal Division ” No: 500-01-208972-205 500-01-208686-201 DATE: May 10, 2023 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. VERNE MANHERTZ Offender ______________________________________________________________________ REASONS FOR SENTENCE ______________________________________________________________________ I.

OVERVIEW [ 1 ] The events surrounding this case are tragic and very sad, to say the least. They resulted in the death of Amanda Bradley. Her family is still grieving her loss with inconsolable pain. I am now called upon to sentence the person whose conduct caused her death, Verne Manhertz. [ 2 ] Amanda Bradley (“the victim”) consumed drugs. Verne Manhertz (“Mr. Manhertz”) was her drug dealer. On August 14, 2020, the victim met Mr. Manhertz to purchase drugs. The transaction turned into a verbal dispute. Mr. Manhertz sought to leave by car. The victim hopped on the hood of his car to prevent him from leaving. Mr.

Manhertz accelerated causing the victim to fall off the car and hit her head on the pavement. Mr. Manhertz drove away from the premises. The victim sustained a serious traumatic brain injury and passed away three days later. [ 3 ] Mr. Manhertz was arrested on August 19, 2020. Police officers searched him and his car. They found and seized various prohibited substances. [ 4 ] Mr.

Manhertz was charged in a first information (n o 500-01-208972-205) with one count of dangerous operation of a vehicle causing death [1] and one count of failure to stop after an accident resulting in death. [2] [ 5 ] In a second information (n o 500-01-208686-201), Mr. Manhertz was charged with nine counts of possession of narcotics for the purpose of trafficking, one count of possession of hashish for the purpose of selling and one count of possession of marijuana for the purpose of selling. Counts n o 1 to 6 involve substances listed in

Schedule I of the Controlled Drugs and Substances Act (“ CDSA ”). [3] Counts n o 7 to 9 involve substances listed in

Schedule IV of the CDSA. [4] Counts n o 10 and n o 11 pertain to offences under the Cannabis Act. [5] The nature and quantity of the various substances are as follows: ➢ Count n o 1 : 3.2 gr. of cocaine ➢ Count n o 2 : 65 pills of Dilaudid. ➢ Count n o 3 : 20 pills of speed [6] . ➢ Count n o 4 : 0.75 gr. of MDMA. ➢ Count n o 5 : 1 gr. of crystal meth. ➢ Count n o 6 : 0.25 gr. of crack cocaine. ➢ Count n o 7 : 70 pills of Barbiturates. ➢ Count n o 8 : 42 pills of Xanax.

➢ Count n o 9 : 6 pills of Clonazepam. ➢ Count n o 10 : 6 gr. of hashish. ➢ Count n o 11 : 3.2 gr. of marijuana. [ 6 ] Upon arrest, Mr. Manhertz was placed in custody. He was released on bail on October 5, 2020, under strict conditions. On April 5, 2022, Mr. Manhertz entered a guilty plea to the count of dangerous operation of a vehicle causing death. The “failure to stop” charge was withdrawn. Mr. Manhertz also pleaded guilty to the eleven drug charges contained in the second information. [ 7 ] As will be further detailed below, Mr. Manhertz has a criminal record, notably in connection with drug offences.

However, he has no prior convictions relating to driving offences. [ 8 ] At the sentencing hearing, Crown counsel submitted that I should impose a sentence of 4½ years on the driving offence and a consecutive sentence of 1½ year on the drug offences, for a grand total of 6 years.

Crown counsel also submitted that a driving prohibition for 5 years would be adequate. [ 9 ] Placing marked emphasis on his client’s rehabilitative efforts, Defence counsel argued that I should impose a sentence of 1 year both on the driving offence and the drug offences to be served concurrently to each other. [ 10 ] Clearly, there is a significant gap between the positions of the parties on sentence. To adjudicate this issue and identify the appropriate sentence for the crimes committed by Mr.

Manhertz, I find it relevant to first discuss in this order: the circumstances relating to the offences, the consequences of the crimes on the relatives of the victim and the circumstances relating to Mr. Manhertz. This will be followed by an overview of general sentencing principles. II. CIRCUMSTANCES RELATING TO THE OFFENCES [ 11 ] An agreed statement of facts [7] was filed into evidence for the purpose of the guilty pleas. It is reproduced as follows: 1. On August 14, 2020, around 6:30 pm, the victim Amanda Bradley leaves her in house in Pointe-Claire. 2.

She walks over to Rodney Street and meets the accused around 7:00 pm. 3. They have a discussion near the accused’s car, which is parked in a handicapped spot facing 11 Rodney Street. 4. According to witnesses, there is a verbal conflict between the accused and Amanda Bradley. 5. According to a witness, the engine of the accused’s car is heard revving and the tires squealing. 6. For an unknown reason, the victim is then seen facing down on the hood of the accused’s car and holding onto the left side of the car, while said car is rapidly leaving the premises. 7.

She is seen falling of the left side of the car and rolling on the ground 52 meters further on, as the car is speeding away. 8. According to a witness, the victim’s head was heard hitting the pavement. 9. The accused speeds off on Rodney Street and turns right onto Belmont Avenue. 10. Eileen Noiseux, who is a nurse, attends to the victim while waiting for the ambulance. 11. The victim is not responsive.

12. The victim is brought to the hospital where she will die on August 17, 2020, due to a traumatic brain injury caused by the impact to her head. 13. Many items were found on the scene, namely a GHB vial, a TD card and a cellular phone belonging to the victim. 14. According to the cellular phone records, the victim had communicated with the accused at 6:19 pm and 6:32 pm on August 14, 2020. 15.

The accused was arrested on August 19, 2020, and the following drugs were seized on him and in his car, as well as three cellular phones: a. 3.2 grams of cocaine b. 65 pills of Dilaudid c. 20 pills of speed d. 0.75 grams of MDMA e. 1 gram of crystal meth f. 0,25 grams of crack cocaine g. 70 pills of Barbiturates h. 42 pills of Xanax i. 6 pills of Clonazepam j. 6 grams of hashish k. 3.2 grams of marijuana [ 12 ] With respect to the driving offence, the parties made it clear that the prohibited conduct ( actus reus – operating a vehicle in an objectively dangerous manner) consisted in Mr.

Manhertz speeding up while knowing that the victim was on the hood of his car. This conduct amounted to a marked departure from the standard of care that a reasonable person would observe in Mr. Manhertz’s circumstances ( mens rea – modified objective test). [ 13 ] Towards the end of the sentencing hearing, the parties filed further admissions [8] regarding the factual background of the case. The admissions are the following: 1.

In his video statement to the police on August 19, 2020, the victim's father, John Bradley, states that his daughter Amanda was on medications for bipolar disease and borderline personality disorder. 2. In her video statement to the police on August 18, 2020, the victim’s mother, Lisa Barr, states that her daughter Amanda was bipolar and had a borderline personality disorder. She took medication to control this condition. 3. In her written declaration, Allison Hancock states that on August 14, 2020, around 7:30 pm, she heard the screams of a woman. 4.

In his written declaration, William Molloy states that on August 14, 2020, around 6:30 pm, she saw a woman arguing with a black man. 5. In his video statement of August 21, 2020, William Molloy, who is deaf and mute, states that on August 14, 2020, around 6:30 pm, he saw a woman looking aggravated and angry. A black man was leaning on the car . Both looked mad. 6. In her video statement of August 21, 2020, Sandra Urbanovitch, who is deaf and mute, states that on August 14, 2020, she saw a woman and a man arguing.

She mentions having looked out the window and saw the same girl gesturing angrily at a man while he was sitting in the passenger seat. [ 14 ] Mr. Manhertz provided additional information about the circumstances of the offences while testifying at the sentencing hearing. These facts will be discussed in my

summary of his testimony. III. VICTIM IMPACT STATEMENTS [ 15 ] Crown counsel filed victim impact statements into evidence pursuant to

section 722 of the Criminal Code (“ C.C . ”). The following relatives of the victim prepared a statement describing the harm suffered as the result of the commission of the offence: Lisa Barr (mother), Nancy Barr (grandmother), John Hock (stepfather), Andrea Leckman (partner of John Hock) and Chantal Bradley (sister).

[ 16 ] These statements share an unquestionable common denominator: the death of the victim has and continues to cause enormous distress and suffering to her relatives. The victim passed away at age 30, leaving two young children (boys) motherless. [ 17 ] Lisa Barr stated that the death of her daughter impacted her life to its core. She will never be the same person. She experienced a mental breakdown and had to spend a week in a crisis center. Part of her died with her daughter’s loss.

To this day, she feels crushed beyond words. [9] [ 18 ] Nancy Barr sadly recalled that the family were not allowed to attend to the victim overnight while she was hospitalized because of Covid-related restrictions. As a result, the victim died alone in the middle of the night. The news of her granddaughter’s death left Nancy Barr in a state of total shock. She will never be at peace with her loss. She never expected to bury a grandchild. Celebrations and daily family events ended on August 17, 2020. [10] [ 19 ] John Hock wrote that he was very close to his daughter-in-law. He is still devastated by her death.

He feels heartbroken to know that her two sons will no longer see their mother. He is unable to watch a TV show where a life is lost. It reminds him of the victim’s lifeless body being hooked up to machines at the hospital. His view of humanity is severely tarnished by this violent crime. [11] [ 20 ] Andrea Leckman knew the victim for 13 years. She remains haunted by the sight of the victim lying lifeless on her hospital bed, her brain injured beyond repair.

She concluded her statement as follows: “Amanda being taken from her family has changed their lives forever and broken all of our hearts permanently”. [12] [ 21 ] Chantal Bradley emotionally collapsed upon finding out about her sister’s death. She is raising her sister’s youngest son. Sadly, like his oldest brother, he will never get a chance to speak to his mother again. As pointed out by Chantal Bradley, time might make things easier, but it will never completely heal the wounds caused by the loss of her sister. [13] IV.

CIRCUMSTANCES RELATING TO THE OFFENDER [ 22 ] In this section, I will discuss the criminal and driving records of Mr. Manhertz, the presentence report, the testimony of Mr. Manhertz and that of other witnesses who attested to his progress and good character. Prior criminal convictions and driving record [ 23 ] Mr. Manhertz’s criminal record [14] is reproduced in the following table: DATE OFFENCE(

S) SENTENCE May 13, 1998 (youth court) Robbery (s. 344 C.C . ) 1 year probation October 22, 1998 (youth court) Robbery (s. 344 C.C . ) 1 year probation June 26, 2000 (youth court) Assault (s. 266 C.C . ) Donation of 100$ September 27, 2000 (youth court) Theft below 5000 $ ( s. 334 C.C. ) Committed to custody for 1 month October 26, 2000 (youth court)

(1) Robbery (s. 344 C.C. ) – 3 counts

(2) Extorsion (s. 346 C.C . ) – 2 counts

(3) Breach of condition ( s. 145 C.C . ) (1-3) Committed to custody for 12 months and a 6-month probation October 30, 2000 (youth court) Possession of property obtained by crime ( s. 355 C.C . ) Committed to custody for 15 days consecutive to any other sentence February 20, 2002 Breach of condition ( s. 145 C.C . ) 1 day of incarceration September 13, 2002 Breach of condition ( s. 145 C.C . ) Suspended sentence and a 1- year probation October 29, 2002 Breach of condition ( s. 145 C.C . ) Suspended sentence and a 1- year probation January 30, 2003 Simple possession of narcotics (s. 4(1)

(5) CDSA ) Fine of 250$ February 26, 2004

(1) Simple possession of narcotics (s. 4(1)

(5) CDSA )

(2) Breach of condition ( s. 145(3) (

a) C.C . ) (1-2) Fine of 250$

August 19, 2004

(1) Forgery (s. 367 C.C . )

(2) Use of forged document ( s. 368 C.C . )

(3) Possession of credit card criminally obtained ( s. 342 C.C . ) (1-3) Suspended sentence and a 2-year probation October 4, 2004 Simple possession of narcotics (s. 4(1)

(5) CDSA ) Fine of 400$ and a 1-year probation September 6, 2005

(1) Obstructing a police officer ( s. 129 C.C . )

(2) Breach of probation ( s. 733.1 C.C . ) – 2 counts

(1) Fine of 150$

(2) Fine of 100$ on each count September 9, 2011

(1) Possession of narcotics for the purpose of trafficking –

Schedule I CDSA (s. 5(2)(3)(a))

(2) Simple possession of narcotics (s. 4(1)

(5) CDSA ) (1) 2 years – 1 day of incarceration and a 2-year probation (s. 109 order)

(2) Suspended sentence and a 1-year probation October 7, 2011

(1) Theft below 5000$ ( s. 334 C.C. )

(2) Breach of probation ( s. 733.1 C.C . ) (1-2) Fine of 50$ October 7, 2011

(1) Mischief (s.430(1)(

a) C.C . )

(2) Mischief (s.430(3)(

b) C.C . ) (1-2) Fine of 50$ May 8, 2012 Breach of condition ( s. 145 C.C . ) Fine of 100$ April 2, 2013

(1) Fraud identity ( s. 403 C.C . )

(2) Obstructing a police officer ( s. 129 C.C . )

(3) Use of forged document ( s. 368 ) C.C . )

(4) Attempt to use a forged document ( s. 368(1) (b)(

d) C.C . )

(1) Suspended sentence and a 2year probation

(2) Fine of 400$ (3-4) Fine of 300$ May 23, 2013 Obstructing a police officer ( s. 129 C.C . ) Fine of 250$ and a 2-month probation April 1, 2015 Simple possession of narcotics (s. 4(1)

(5) CDSA ) Fine of 500$ September 29, 2017

(1) Breach of probation ( s. 733.1 C.C . )

(2) Theft below 5000 ( s. 334 C.C . )

(3) Breach of condition ( s. 145 C.C . )

(1) Fine of 300$ (2-3) Suspended sentence and probation of 730 days September 29, 2017

(1) Breach of probation ( s. 733.1 C.C . )

(2) Obstructing a police officer ( s. 129 C.C . )

(3) Breach of condition ( s. 145 C.C . )

(1) Fine of 300$ (2-3) Suspended sentence and a 2-year probation

April 4, 2018

(1) Identity Fraud (s. 403 C.C . )

(2) Fraud (s. 380 C.C . )

(3) Use of forged document ( s. 368 C.C . )

(4) Identity documents ( s. 56.1 C.C . )

(5) Possession of credit card criminally obtained ( s. 342 C.C . )

(6) Fraud (s. 380 C.C . )

(7) Breach of probation ( s. 733.1 C.C . )

(8) Identity Theft (s. 401.2 C.C . )

(9) Unauthorized use of credit card data ( s. 342(3) C.C . ) (1-9) 90 days to be served intermittently and a 3-year supervised probation (including a condition to perform 240 hours of community works) August 27, 2019 Breach of condition ( s. 145 C.C . ) 10 days to be served intermittently consecutive to any other sentence and a 12- month probation [ 24 ] Records from the Société de l’Assurance Automobile du Québec (« SAAQ ») [15] indicate that Mr. Manhertz committed five offences to the Highway Safety Code . Four of the five offences involved driving above the speed limit. Mr.

Manhertz was found guilty of such offences respectively on September 14, 2015; September 17, 2019; April 7, 2021; and January 10, 2022. The fifth offence is in relation to a failure to stop at a stop sign. Mr. Manhertz was found guilty of this offence on January 18, 2021. Although three of the five convictions occurred after the events in the case at bar, the corresponding offences were committed prior to August 14, 2020 . The presentence report (“PSR”) [ 25 ] The PSR [16] was not court-ordered. Mr. Manhertz privately retained a criminologist, Jonathan Lambert, to prepare it.

The PSR was finalized on October 13, 2022. It is drafted in French. Mr. Manhertz waved his right to have it translated into English. The PSR is very thorough. I will outline its most relevant segments. - Personal history of Mr. Manhertz: [ 26 ] Mr. Manhertz is 39 years old (36 years old at the time of the offences). He is the fourth of seven siblings. He grew up in an unstable and dysfunctional family environment. His father was violent. He often physically abused him as well as his siblings and mother. The family experienced financial hardship and struggled to make ends meet. [ 27 ] Mr.

Manhertz’s parents separated more than 20 years ago. His mother met a new spouse. He became a father-figure to Mr. Manhertz. He sadly passed away in the summer of 2020, not long before the events of this case. Mr. Manhertz no longer entertains a relationship with his father. He speaks to his mother on a regular basis and sees her on special occasions. He remains close to his siblings. [ 28 ] Mr. Manhertz was a good student in primary school. His behaviour changed during his early teens. He started indulging in cannabis and alcohol. He also turned to criminal activities such as thefts, robberies, and drug dealing.

He was expelled from his house at age 14. Shortly after, Mr. Manhertz was convicted of various offences. He served time in a juvenile detention center from age 15 to 18. He managed to complete his secondary school while in custody. [ 29 ] In his early adult years, Mr. Manhertz did not seek employment. Drug trafficking was his way of life and main source of income. It was only later, at 25 years old, that he secured legitimate employment in telemarketing. He then worked in a bakery for a short period of time. This was followed by sporadic construction-related jobs. While holding employment, Mr.

Manhertz kept on dealing drugs as a “side business”. [ 30 ] In 2019, Mr. Manhertz completed a 16-month training program and earned a diploma of vocational studies in electricity. He has steadily been employed as an electrician since. He currently works 40 hours a week for the company “KGC”. He is a third-year electrician apprentice heading into his fourth year. His hourly wage is $ 30 to $ 35. [17] He will advance to the status of journeyman electrician upon completion of 800 hours of work as an apprentice. His hourly wage will then increase to $ 45.

He hopes to start his own electrical company in the future. [ 31 ] Mr. Manhertz has three children from three different relationships. His eldest daughter is 22 years old. [18] She is married and lives in Romania. He had her when he was only 15 years old. His youngest daughter is 11 years old. He has shared custody of her on a weekly basis. He pays monthly alimony to her mother in the amount of $ 100. She was distressed by her father’s incarceration early in the proceedings. Her school grades plummeted. Mr. Manhertz also has a 2-year-old son but has not developed parental ties with him.

The child was born out of a brief and superficial relationship. Mr. Manhertz would like to invest in his parental role in the future.

[ 32 ] In 2021, Mr. Manhertz purchased a duplex in Valleyfield. He lives on the first floor and rents out the second floor. He is very implicated in the life of his youngest daughter. He has the support of his family members. He is emotionally involved with Ms. Laura Watson, a 35-year-old woman who holds a position of Vice-President of a transportation company. Their relationship can be best described as intermittent. Mr. Manhertz’s lifestyle and promiscuity often generated conflict. However, Ms. Watson remains to this day a positive influence. [ 33 ] Mr. Manhertz still consumes cannabis on a regular basis.

He buys it from the Société Québécoise du Cannabis (“ SQDC ”). [19] It helps him sleep and reduces tics caused by Tourette’s syndrome. Mr. Manhertz never took other drugs. He no longer drinks alcohol. Beside Tourette’s syndrome diagnosed at an early age, Mr. Manhertz has no significant psychiatric history. He is not medicated. In October of 2022, he voluntarily began a psychotherapy to understand his past behaviour and improve his mental health. - Observations made by the criminologist: [ 34 ] According to Mr. Lambert, Mr.

Manhertz was cooperative, available, punctual, and willing to give him access to the requested documentation. Despite being an introvert, he was able to deliver a structured account of his personal history. He recognized being at fault in this matter. He admitted that dealing drugs played a pivotal role in the tragic events. He expressed genuine remorse towards the victim and her relatives. [ 35 ] With respect to the driving offence, Mr. Lambert noted that Mr. Manhertz response to a very tense situation was highly inadequate. He reacted impulsively and recklessly.

At the time of the events, he was experiencing unusual levels of stress. His stepfather passed away not long before. He did not go to his funeral because he knew that a woman (the mother of his son) with whom he had an affair would be in attendance. He feared that this would expose his infidelity and cause a potential conflict with Ms. Watson. According to Mr. Lambert, this context may have exacerbated his aggressiveness on the day of the altercation with the victim. [ 36 ] Mr. Lambert opined that Mr.

Manhertz’s difficult childhood, the prolonged abuse at the hands of his father, the effects of Tourette’s syndrome on his self-esteem and cannabis addiction are all contributing factors to his historical involvement in illicit activities. - Conclusions / Recommendations: [ 37 ] Mr. Lambert stated that Mr. Manhertz’s arrest and ongoing judicial proceedings have had a significant impact on him. He is now fully aware of the reprehensible nature of his conduct. He has made positive changes in his life. Mr. Lambert concluded that the risk of driving-related recidivism appears to be low.

As for drug trafficking, the persistence of this activity in the subject's life calls for greater caution in terms of prognosis. [ 38 ] Finally, Mr. Lambert issued the following recommendations (in French): Dans une perspective d’individualisation de la peine, une sentence de neutralisation devrait idéalement comporter une dimension réparatrice, adaptée à la situation du sujet. Une fois en liberté, ce dernier pourrait s’impliquer financièrement auprès de la famille endeuillée par son délit. Quant aux aspects plus réhabilitants, M.

Manhertz est réceptif à l’idée de s’engager dans une thérapie avec un psychologue de pratique privée. Ce processus pourrait lui permettre de poursuivre les démarches de conscientisation déjà amorcées, tout en favorisant le maintien des habitudes de vie qui seraient les siennes depuis son arrestation. [20] The testimony of Mr. Manhertz [ 39 ] In many respects, the testimony of Mr. Manhertz at the sentencing hearing mirrored the contents of the PSR. Therefore. I will only review areas of his testimony which are not referred to in my synopsis of the PSR. [ 40 ] As indicated previously, Mr.

Manhertz provided additional details regarding his relationship with the victim and the circumstances surrounding the driving offence. I will discuss this part of his testimony first. - Relationship with the victim and circumstances surrounding her death: [ 41 ] Mr. Manhertz met the victim through a mutual friend – a drug dealer as well – at the Fairview shopping mall some 6 months prior to the events. The victim was looking to purchase painkillers. Mr. Manhertz did not carry any with him. He exchanged phone numbers with the victim. Later that day, he managed to get some painkillers.

He contacted the victim and sold her the drugs. This is how their commercial relationship began. She became a regular customer. [ 42 ] Mr. Manhertz would often front drugs to the victim. At one point, she even owed him up to $ 800. She always paid him back. He never refused to sell her drugs because she could not pay immediately. In time, he considered her a friend. Mr. Manhertz described her as a fun person, full of energy. [ 43 ] On the day of the incident, Mr. Manhertz agreed to sell $ 50 worth of GHB to the victim. When they met, the victim wanted more than what she asked for. Mr.

Manhertz did not have more that $ 50 worth of GHB with him. He only had Xanax destined to another customer. The victim nonetheless insisted. Mr. Manhertz intended to leave. He was about to enter his car when the victim hopped knees first onto the hood to prevent him from leaving. Mr. Manhertz agreed to let her search his car. She would be able to see for herself that he did not have more than $ 50 worth of GHB with him at the time. The victim searched his car thoroughly and found nothing. [ 44 ] Notwithstanding, the victim kept on asking Mr. Manhertz for more GHB. She even yelled and put his hands on him.

However, she did not appear to be under the influence of drugs. Mr. Manhertz became completely fed up with not being believed. He locked his car and decided to walk away from the scene to gather his thoughts. He was hoping that the victim would calm down or leave. [ 45 ] Mr. Manhertz walked over a distance of 100 meters until he turned a corner and could no longer see his car. He then turned around and walked back toward his car. The victim was still there walking her dog. She looked frustrated. Mr. Manhertz nevertheless felt

she understood that he could not do anything else for her. He entered his car and started the engine. As soon as he put the car in gear, the victim jumped on the hood. She laid flat on it and held on to the extremity of the hood near the windshield wipers. The car was already in motion. [ 46 ] Mr. Manhertz panicked and accelerated his car with the victim still on the hood. She let go of the hood within two or three seconds and fell on the left side of the car. As Mr. Manhertz was about to turn the corner, he saw the victim in his rear mirror. She looked like she was getting up on her hands and knees.

He continued driving away from the scene. He left the premises because he was not thinking clearly and had drugs on him. [ 47 ] Immediately after, Mr. Manhertz went to meet another customer to sell him Xanax. He then drove straight to his brother’s place of work. He told his brother, Will Manhertz, what just happened. Mr. Manhertz was confused and in shock. That same day or the following day, he went to see Ms. Watson and poured his heart out. He told her that he hit a woman with his car. He started crying. [ 48 ] Mr. Manhertz did not hear from the victim. He never attempted to get in touch with her.

He figured that she was okay. He thought she might have found another drug dealer. He only became aware that she passed away when he was arrested and brought to the police station, five days after the events. - Other additional relevant information: [ 49 ] During his testimony, Mr. Manhertz provided the following specifics. [ 50 ] Upon being released from juvenile detention, he attended an adult education center for couple years and earned a high school diploma. [ 51 ] He was involved in drug dealing since the age of 14.

He was still dealing drugs at the time of the events despite already working full-time as an electrician. He pursued this illicit activity not solely for profit, but also because it was part of a lifestyle he endorsed. Mr. Manhertz was “a street-level dealer” with no more than 10 regular customers at any given time. He abstained from dealing drugs when he had custody of his youngest daughter. [ 52 ] Mr. Manhertz acknowledged that the events which led to death of the victim would have never occurred had he not been dealing drugs.

He referred to the driving offence as being a “tragic accident” which turned out to be a traumatic and awakening experience for him. He has not sold drugs since his arrest in August of 2020. He is no longer involved in the drug underworld. He still smokes marijuana and plans on continuing. He testified that smoking marijuana is more effective than traditional medication to reduce the negative effects of Tourette’s syndrome. [ 53 ] Once arrested, Mr. Manhertz remained in preventive custody from August 19, 2020, to October 5, 2020. He was released under stringent bail conditions.

He had to wear an electronic surveillance bracelet on his ankle. He had to respect a curfew from 9:00 pm to 5:00 am. He was not allowed to have a cellular phone in his possession. He was also strictly forbidden from driving a motor vehicle. This prohibition was later relaxed to allow him to drive to and from work and to take his daughter to and from school. [ 54 ] On April 5, 2022, bail conditions requiring him to wear an electronic surveillance bracelet and prohibiting him from having a cellular phone were struck down.

The curfew condition was varied, permitting him to be outside of his residence except between 11:00 pm and 5:00 am. The driving prohibition (with the aforementioned exceptions) was maintained. To this day, Mr. Manhertz has complied with all bail conditions. [ 55 ] Mr. Manhertz was raised in the Seventh Day Adventist Church. He stopped going to church for some 20 years. He began attending church again around the same time he enrolled in electrician school. He wanted his children to benefit from the teachings of the church. He also wanted to get his life back on track.

Going back to church did not change him overnight. At first, he was not in a not in state of mind to fully embrace the teachings of the church. It was a gradual learning process. He is now an active churchgoer. He attends services with his youngest daughter on a weekly basis. [ 56 ] Mr. Manhertz is especially close to his brothers Will and Jonas. None of his siblings have prior convictions. They lead normal lives and adhere to pro-social values. Mr. Manhertz still helps his eldest daughter financially when needed. He informed his youngest daughter of his current legal situation and that he will face jail time.

He intends to be involved in the life of his 2-year-old son once his sentence is fully served. [ 57 ] The purchasing price of his duplex was $ 194,999. The down payment made was in the amount of $ 12,750. He did not use “drug money” for the down payment. The money used to make the down payment was strictly derived from his work earnings as an electrician. All taxes owed to this day have been paid. The upper part of the duplex is rented out as an Airbnb. He renovated it with his brother Jonas who works as a plumber. The Airbnb rental generates sufficient revenue to easily cover the mortgage payment. Mr.

Manhertz is looking to purchase another duplex in the future. [ 58 ] According to Mr. Manhertz, his life has never been better. He stated: “The events surrounding this case definitely triggered a positive reaction”. - Letter to the relatives of the victim: [ 59 ] Mr. Manhertz wrote a 5-page letter [21] to the family of the victim. He read it out loud at the sentencing hearing. The following extracts of the letter are telling: I would like to offer you my deepest sympathies and my prayers and my heart go out to you.

I’m not just saying that because that’s what people say in situations like this, I’m saying it because I don’t know what I’d want to do with myself if something like this would happen

to one of my kids. […] I will also have to live with the fact that I took a child from her parents forever and a mother from her son forever. Only I can tell you how ashamed I am that I am to blame for all of this. […] I’m probably the last person that you would want help from right now in any sort of way, but I want you to know that you may ask anything of me regardless. I think I owe you at least that much and if you would allow me to, I’d also like to offer an allowance each month for Amanda’s son. […] I cannot bring Amanda back nor can I take away your pain.

I can however make you a promise to change, I can promise you that’ll never put another family through this as long as I live. I have gotten back on track, working full time, spending plenty of time with my family and going to Church every Sabbath. Sticking to my therapy sessions and becoming the man I’ve always wanted to be. […] I wish to express my deepest regret and shame for what has brought us here. I blame no one but myself.

I’m here for you during this time of grief and if you’d ever like to reach out and accept the allowance that I’m offering for her son you can do this at anytime by contacting me at [e-mail address]. [ 60 ] Overall, cross-examination did not undermine the credibility of Mr. Manhertz’s testimony. His account was for the most part straightforward. I do accept his explanations regarding the circumstances surrounding the driving offence.

They are, to a large extent, consistent with the agreed statement of facts [22] and the admissions [23] filed at the hearing. “Good character” witnesses [ 61 ] Several witnesses came to testify to attest to Mr. Manhertz’s good character and positive evolution since his arrest in August of 2020. I will first discuss what his relatives conveyed to the Court. I will next turn my attention to the testimony of his friends and acquaintances. - Family members: [ 62 ] Defence counsel, Mr.

Gauthier, called three relatives to testify at the sentencing hearing: Will Manhertz (older brother), his wife Elsie Jonah (sister-in-law) and Jonas Manhertz (younger brother). [ 63 ] Will Manhertz described his brother as a good person, a dedicated father, and a family-oriented man, especially over the past two years. He confirmed that his brother came to see him at work on the evening of the incident and told him what happened. He seemed worried. His brother mentioned that somebody was on his car and fell off. Their conversation was brief. His brother took off immediately afterwards.

At the time, Will Manhertz did not know that the incident occurred in the context of a drug transaction or that the person’s life was endangered. He only found out later the details of what he termed a “tragic accident”. Will Manhertz is aware of his brother’s criminal record and drug dealing history. [ 64 ] Elsie Jonah is married to Will Manhertz. They have been together for 28 years. She depicted her brother-in-law as an introverted person and exceptional father. She observed significant improvements in his personal life over the past two years. Her brother-in-law is now much more involved in his family life.

He displayed a strong drive to purchase property. Mrs. Jonah was always aware that her brother-in-law was dealing drugs and that he had a criminal record. She did not like it but still accepted to see him because of his family ties with her husband. Approximately a month before the sentencing hearing, Mr. Manhertz engaged in a discussion with Mrs. Jonah about his case. He tearfully told her that it was an accident. He felt sorrow and remorse. [ 65 ] Jonas Manhertz works as a plumber. He sees his brother almost daily.

He testified that his brother is now a very serious, punctual, and hard-working man as well as a committed father. He told him about the incident prior to being arrested. He was visibly shaken. However, Jonas Manhertz, like his brother Will, could not recall the details of their conversation. He is now fully aware of the circumstances relating to the offences as he attended the bail hearing. He knew of his brother’s involvement in drugs but never inquired into it much further. [ 66 ] It should be emphasized that all three relatives were convinced that Mr.

Manhertz stopped dealing drugs and that his situation changed for the best. - Friends and acquaintances: [ 67 ] Four other witnesses provided details about the evolution of Mr. Manhertz. Two of them entertain a close and friendly relationship with him: Ms. Watson, his on and off girlfriend, and Phil De Angelis, an electrician who attended school with him. The two other witnesses are Fadi El Magdoub and Annette Clarke. They do not interact with Mr. Manhertz in a social context. Mr. El Magdoub is a teenage acquaintance. He also recently acted as Mr. Manhertz’s financial advisor. Ms.

Clarke is a member of the same church congregation as Mr. Manhertz. [ 68 ] Ms. Watson has known Mr. Manhertz for 15 years. As noted by Mr. Lambert in the PSR, they have had an on and off romantic relationship over the years. At the time of the sentencing hearing, Ms. Watson considered Mr. Manhertz to be a friend, more so than her boyfriend. They see each other maybe once or twice a week. She mentioned that he came to see her in the aftermath of the events, maybe

a day later. He told her that he went to sell drugs to somebody. The person wanted more drugs and became upset if not violent. When he got in his car and started driving, she threw herself onto the hood. Ms. Watson indicated that she had never seen Mr. Manhertz in such an emotional state. Because he was in distress, she did not ask him any other questions. She gave him a hug and he left soon after. [ 69 ] The fact that the offender was dealing drugs at the time was the main source of conflict in their relationship. Ms. Watson testified that Mr. Manhertz is now a very different person.

He fought to get shared custody of his youngest daughter and worked very hard to acquire property. She helped him out with the Airbnb rental of the upper part of the duplex. She learned of the full details of the incident while Mr. Manhertz was detained. Yet, she described the events as “an accident”. According to Ms. Watson, Mr. Manhertz no longer sells drugs. [ 70 ] Mr. De Angelis met the offender while attending electrician school few years ago. They have developed a close relationship. They see each other on a weekly basis. They have business plans together for the future.

They intend to purchase buildings, renovate them, and sell them at profit. [ 71 ] Mr. De Angelis acknowledged that he did not know much about Mr. Manhertz’s past criminal history. He was only made aware of the full extent of his criminal record and the facts surrounding this case when he met with Mr. Gauthier prior to the sentencing hearing. Before that, Mr. Manhertz only briefly discussed his case with Mr. De Angelis. He told him that it involved a girl and that he “fucked up”. Mr. De Angelis noticed that Mr. Manhertz has been spending more time with his daughter as of late.

He observed that he has grown into a responsible father-figure. [ 72 ] Ms. Clarke met Mr. Manhertz at church sometime in 2016. He walked in with his little daughter while she was officiating. She testified that Mr. Manhertz comes to church with his daughter every Sabbath. She described him as a lovely young man with a good spirit. Ms. Clarke did not know of the Mr. Mr. Manhertz’s criminal record and the circumstances of the current file until she sat down with Mr. Gauthier. She stated that she was informed that someone was killed accidentally. She was surprised to learn of the Mr.

Manhertz’s record because the person she sees at church does not fit the profile of a criminal. [ 73 ] Mr. El Magdoub is a banker. He used to work for the Bank of Montreal but is now employed by the Bank of Nova Scotia. He is a childhood acquaintance of Mr. Manhertz. They grew up in the same neighborhood and played football together. They completely lost touch from the age of 16-17 years old until 2018 when he ran coincidentally into him at the Bank of Montreal. Mr. El Magdoub offered him his services as financial advisor. They came up with a strategy to make a down payment for a property. [ 74 ] Mr.

El Magdoub helped Mr. Manhertz set up a continuance plan to save money and pre-approved a mortgage for him. He had no significant credit issues. According to Mr. El Magdoub, Mr. Manhertz was able to save up to approximately $ 20,000. He opened both a RRSP (registered retirement savings plan) and TFSA (tax-free savings account) account. He now has a steady income and owns property. Mr. El Magdoub noted that Mr. Manhertz proved to be eager and disciplined with respect to his finances. He conceded that he had little knowledge of Mr. Manhertz’s criminal past and present legal troubles. V.

GENERAL SENTENCING PRINCIPLES [ 75 ] Sentencing is arguably one of the most difficult and delicate tasks assigned to a judge. It is far from being an exact science. It entails a delicate balancing exercise.

Indeed, finding and applying the fairest and most equitable standard for an offender while manifesting the appropriate social disapproval and ensuring the protection of society is a complex weighting process since it tends to ensure a balance between values which, without opposing each other, have different objectives. [24] [ 76 ] The purpose and principles of sentencing are set out at sections 718 and following of the Criminal Code . [ 77 ] As mentioned in s. 718 C.C . , the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. [ 78 ] In R . v. Nasogaluak , [25] the Supreme Court stated that the determination of a “fit” sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case . No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. [ 79 ]

Section 718.1 C.C . provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is an overarching fundamental principle of sentencing. [ 80 ]

Section 718.2 C.C . sets out that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. [ 81 ]

Section 718.2(

b) C.C . requires that a sentence be similar to those imposed on similar offenders in similar circumstances. This is

referred to as the parity principle. [ 82 ]

Section 718.2(

c) C.C. calls for a judge imposing consecutive sentences to ensure that the combined sentence is not unduly harsh and does not exceed the overall culpability of the offender. This is referred to as the principle of totality. [ 83 ] I n the case of drug offences,

section 10 of the Controlled Drugs and Substances Act holds that: 10.

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 84 ] In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. VI. ANALYSIS A.

GRAVITY OF THE OFFENCES [ 85 ] T he fundamental principle of proportionality, which is central to the sentencing process, requires the sentencing judge to consider the gravity of the offence(

s) and the degree of responsibility (moral blameworthiness) of the offender . The gravity of the offence(

s) must be assessed both objectively and subjectively . 1) Objective gravity [ 86 ] The objective gravity of an offence is considered in light of other offences in the Criminal Code . [26] The maximum sentence for an offence is a reflection of – and something of a proxy for – its severity. [27] [ 87 ] In a case like this one, when the Crown elects to proceed by indictment, the offence of dangerous driving causing death carries a maximum sentence of imprisonment for life. [28] Dangerous driving resulting in death is a very serious criminal offence. It is not an accident.

Usually, denunciation and deterrence are significant sentencing considerations for this type of offence. [29] [ 88 ] With respect to the drug offences, possession of

Schedule I substances for the purpose of trafficking also carries a maximum sentence of imprisonment for life. [30] Possession of

Schedule IV substances for the purpose of trafficking, when taken by indictment, carries a maximum sentence of 3 years. [31] Finally, Mr. Manhertz is liable to a maximum term of 14 years of imprisonment in connection with the indictable offences committed pursuant to the Cannabis Act. [32] [ 89 ] Drug trafficking is a plague. It is known to have devastating effects on society . [33] Courts usually impose stiff sentences for possession of

Schedule I substances for the purpose of trafficking. Generally speaking, denunciation and deterrence are paramount objectives in sentencing traffickers of hard drugs. [34] [ 90 ] From an overall standpoint, the objective gravity of the offences committed by Mr. Manhertz is very high. Several of the offences at issue are at the top of the list in terms of seriousness. 2) Subjective gravity [ 91 ] In assessing the subjective gravity of the offences, I must consider the aggravating and mitigating circumstances relating to the offences or the offender. [ 92 ] In R . v. Suter , [35] the Supreme Court specified that “aggravating” or “mitigating” factors under s. 718.2 (

a) C.C. are those that relate to the gravity of the offence(

s) or the level of responsibility of the offender (also referred to in case law as “degree of responsibility or “moral blameworthiness”). [ 93 ] Nevertheless, I am also entitled to consider factors that do not relate to the gravity of the offence(

s) or the level of responsibility of the offender, but yet remain relevant in crafting a fit sentence. They will be discussed later. For now, it is relevant to identify the aggravating and mitigating factors that strictly relate to the gravity of the offences or the level of responsibility of the offender as set out in s. 718.2 (

a) C.C. ➢ Aggravating factors: [ 94 ] In the case at bar, I find the following aggravating factors to be present: i. Mr. Manhertz committed the driving offence in the context of a drug transaction • As conceded by Mr. Manhertz, the driving offence and its tragic outcome would not have occurred if not for the drug transaction. Mr. Manhertz’s illicit activities as a drug dealer are at the heart of the events which led to the death of the victim. This heightens his degree of responsibility. ii. Mr. Manhertz drove away from the scene and left the premises despite being aware that the victim fell off the hood of his car while he accelerated

• It is understood from the evidence that Mr. Manhertz drove away to avoid being intercepted by police with drugs on him. He also figured that the victim was “okay” because he saw in his rear mirror that she was upright on her knees. • While I do not dispute that Mr. Manhertz had drugs on him, I find it difficult to accept his assessment of the victim’s physical state as he was driving away.

It should be recalled that the admissions filed by the parties set out the following: the victim was holding on to the left side of the car while it was leaving the premises at speed; she fell of the car and rolled on the ground 52 meters further on; witnesses heard her head hitting the pavement; a witness (a nurse) attended to the victim who was unresponsive. The admitted facts clearly demonstrate that the victim was not “okay”. • Also, Mr. Manhertz’s emotional state shortly after the incident as described by Ms.

Watson and, to a lesser extent, by his brothers Will and Jonas, does not appear to be consistent with his asserted belief that the victim appeared to be “okay”. Ms. Watson had never seen him so openly distressed. If he really figured that the victim was “okay”, why such an outpour of emotions from a self- acknowledged introvert? • On the evidence, I find that Mr. Manhertz suspected, at the very least, that the victim may have sustained significant injuries but turned a blind eye to it.

Although he stated in testimony that he was on friendly terms with the victim, he never considered calling 911 to seek assistance for her. He could even have done so anonymously if he was afraid to be caught. Moreover, he never inquired about her well-being. iii. Mr. Manhertz continued dealing drugs in the immediate aftermath of the driving offence • The driving offence did not deter Mr. Manhertz from selling drugs. He immediately drove from the scene of the incident to go meet another customer and sell him Xanax pills. The fact that he appeared deeply troubled by the incident – as conveyed by Ms.

Watson – did not prompt him to reflect on the wrongfulness of drug dealing. On the contrary, he was found in possession of a variety of illicit and harmful substances few days later. It is only upon release from preventive custody that Mr. Manhertz appeared to realize the extent of the damage done by feeding drug addiction. iv. The nature and variety of the drugs seized on Mr. Manhertz • Mr. Manhertz was not found in possession of significant quantities of drugs. The police nonetheless seized a wide variety of drugs on him – 11 different types of drugs to be precise.

They include substances like cocaine, crack cocaine, MDMA and crystal meth, all pernicious and addictive drugs which he had ready for sale. v. The drug offences were motivated by the lure of easy profit • As referred to in the PSR, Mr. Manhertz first sold drugs to sustain his cannabis consumption as a teenager. However, he did not engage in drug trafficking over the years to feed an addiction to hard drugs or a habit of any sort. He ran a street-level commercial operation over an extended period. This necessarily required a certain degree of planification and premeditation.

He clearly had access to a wide variety of substances. He embraced the lifestyle of a drug dealer and was driven by the desire to make easy money, even while gainfully employed. vi. The criminal record of Mr. Manhertz • Mr. Manhertz has an extensive criminal record which includes a broad range of offences. Recurrent convictions did not deter him from reoffending in the present case. While he has no record for driving offences, he has 6 prior convictions for drug-related offences. The most significant one dates to September 9, 2011. He was then sentenced to 2 years less a day of imprisonment for possession of

Schedule I substances for the purpose of trafficking.

• I acknowledge that Mr. Manhertz has a provincial driving record which includes offences of speeding committed prior to August 14, 2020. However, there is not a sufficiently significant nexus between said regulatory offences and the circumstances of this case to conclude (beyond reasonable doubt) that his driving record is an aggravating factor. vii. Mr. Manhertz was under probation when he committed the offences • In August of 2020, Mr. Mnahertz was still subject to two probation orders. The first order was issued on April 4, 2018.

It provided for a supervised probation of 3 years with an obligation to perform 240 hours of community service. The second order was issued on August 27, 2019. It provided for a 12-month probation. viii. The consequences of the driving offence on the victim’s family • I need not dwell on this well recognized aggravating factor. The victim impact statements filed into evidence speak for themselves. ➢ Mitigating factors: [ 95 ] As for mitigating factors, I consider the following: i. Mr. Manhertz entered guilty pleas • By entering guilty pleas, Mr. Manhertz recognized being at fault.

He acknowledged the harm caused by his conduct. This is a positive step towards rehabilitation. He pleaded guilty some 18 months after the events, but prior to scheduling a trial. The guilty pleas were not offered on the eve or morning of the trial. They spared witnesses from testifying in open court and the victim’s family from having to endure the uncertainty of a trial. Both the guilty pleas and the agreed statement of facts saved precious time and judicial resources. ii. Mr. Manhertz expressed remorse for his conduct • In addition to entering guilty pleas, Mr.

Manhertz expressed genuine remorse and shame for his crimes. He also displayed awareness of the effects of his crimes on the family of the victim. I also note that he is willing to provide some reparation for the harm done to the victim and her family, as evidenced by the letter [36] read at the sentencing hearing. • While I am satisfied that Mr. Manhertz’s expression of remorse is sincere, I cannot help to be troubled by his reference to the events as “a tragic accident”. Some of the “good character” witnesses also employed this terminology.

To be clear, it is not accurate nor appropriate to describe the incident which caused the death of the victim as an accident . If it were an accident , it would not attract criminal liability. Because Mr. Manhertz realized his wrongdoings, the improper use of the word “accident” – although unfortunate – does not alter the weight I ascribe to his remorse as a mitigating factor. [ 96 ] The evidence points to the victim being in a state of crisis on the day of the events and having somewhat instigated the altercation with Mr. Manhertz. The fact that she jumped on the hood of the car to prevent Mr.

Manhertz from leaving is unequivocal. As difficult as it may sound for her relatives, this behaviour can be viewed as a contributing factor to the driving offence. However, it is not a mitigating circumstance per se . It must nevertheless be considered when comparing the present case to the body of case law submitted by the parties. ➢ Other relevant considerations: [ 97 ] As mentioned previously, in crafting a fit sentence, I may also consider relevant factors which do not necessarily speak to the gravity of the offence(

s) or the degree of responsibility of the offender. They are the following: ➢ Mr. Manhertz is steadily and gainfully employed as an electrician. ➢ He managed to save enough money to purchase property – a duplex. ➢ He can pay his mortgage with revenues derived from the Airbnb rental of the upper part of the duplex.

➢ He has been a devoted father to his daughters. ➢ He appears to be now committed to church values. ➢ He has a strong family network and benefits from the active support of his friend Ms. Watson. ➢ He is no longer involved in drug trafficking – I come to this conclusion based on the persuasive evidence heard on this issue. ➢ He complied with strict bail conditions for more than 2 ½ years. ➢ The judicial process has had a positive impact on him. ➢ He voluntarily began a psychotherapy to understand his past behaviour and improve his mental health. ➢ Overall, the PSR is favourable.

The risk of reoffending is relatively low, more so as it relates to the driving offence. [ 98 ] As noted by Mr. Lambert, cannabis addiction played some

part in Mr. Manhertz’s historical involvement in illicit activities. I do not dispute this assertion. On the other hand, his ongoing consumption of cannabis does not appear to have impeded his rehabilitative efforts. [ 99 ] The above-listed relevant considerations, coupled with the mitigating factors referred to earlier, demonstrate that Mr. Manhertz’s rehabilitation is underway. The need for specific deterrence is thus lessened. Mr. Manhertz is turning his life around.

Overall, there is convincing evidence of rehabilitation. [ 100 ] Notwithstanding, based on my assessment of all the relevant circumstances surrounding the offences and the offender, I conclude that the subjective gravity of the offences is high. The aggravating factors that strictly relate to the gravity of the offences or the level of responsibility of the offender outweigh the mitigating factors. [ 101 ] I will now turn to the parity principle which, as a reminder, requires that a sentence be similar to those imposed on similar offenders in similar circumstances. B.

PARITY PRINCIPLE – RANGE OF SENTENCE [ 102 ] The principle of parity entails a comparative analysis with other sentencing case law. It is nonetheless impossible to find two cases whose circumstances are perfectly identical. However, the parity principle does not require equal or identical sentences for similarly situated offenders, nor is it to be applied in a rigid fashion. [37] Rather, I must consider cases involving the same offence(

s) with a similar constellation of aggravating, mitigating and relevant factors applying to individual offenders. [38] [ 103 ] A comparative analysis with other sentencing case law therefore remains a useful exercise despite its inherent limitations. I will first focus on sentencing case law pertaining to the offence of dangerous driving causing death. I will then discuss cases relevant to the drug offences. Sentencing case law – the driving offence [ 104 ] The parties, notably Defence counsel, provided a substantial body of case law.

Because of the unique factual circumstances surrounding the present matter, it can hardly be said that the cases involve a similar constellation of aggravating, mitigating and relevant factors. For instance, most of the cases provided by Defence counsel deal with sentences imposed on first-time offenders, including youthful offenders. As well, some of the cases relied upon by Crown counsel involve impaired driving causing death or deliberate acts of markedly reckless driving. [39] [ 105 ] This is not to say that the cases provided by counsels are irrelevant.

Some are helpful to identify the applicable range of sentences, and, in turn, the reasonableness of the quantum suggested by the parties. They will be discussed in the following paragraphs (from the oldest to the most recent relevant case). ➢ Overview of relevant cases: [ 106 ] In R . v. Proulx , [40] the Supreme Court restored an 18-month concurrent sentence of incarceration to the offender, an 18-year- old first-time offender, who pleaded guilty to dangerous driving causing death and to dangerous driving causing bodily harm.

The offender, who had only seven weeks of experience as a licensed driver, decided to drive his friends home even tough he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the offender drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling. While attempting to pass another vehicle, he drove his car into oncoming traffic, side-swiped a first car and crashed into a second. The driver of the second car was seriously injured while a passenger in the offender’s car was killed.

The offender was in a near-death coma for some time but ultimately recovered from his injuries. By the time of sentencing, he was employed and expecting a first child with his girlfriend. [ 107 ] While the offender had been sentenced to 18 months of incarceration, the Quebec Court of Appeal overturned the sentence and imposed an 18-month conditional sentence order. In restoring the 18-month sentence of incarceration, the Supreme Court took into consideration the seriousness of the offences and their consequences.

Furthermore, the Court stated that heavy sentences for driving offences plausibly provide general deterrence. Lamer C.J. writing for the Court might have found – had he been the trial judge – that a conditional sentence would have been appropriate in this case given the young age of the offender, his lack of a prior record, the extent of his injuries and his complete rehabilitation. [ 108 ] In Ferland v. R ., [41] the Quebec Court of Appeal upheld a 42-month concurrent sentence of incarceration to the appellant who pleaded guilty to dangerous driving causing death and to dangerous driving causing bodily harm.

The appellant drove in pouring rain at an excessive speed of 160 km/h on a two-way highway. While attempting to pass a tractor trailer, his car skidded on the wet surface of

the road (hydroplaning) and crashed into a car on the oncoming lane. The crash caused the death of a 56-years old woman and serious injuries to her a 4-year-old grandson. [ 109 ] The appellant sustained multiple fractures and was left unable to work. He was 32 years old at the time. He had one prior conviction of impaired driving (when he was 21 years old). He showed sincere remorse. The PSR was positive. The risk of reoffending was assessed as low. [ 110 ] In its analysis, the Court referred to its earlier decision in Houle v.

R . [42] In this case, it was held that sentences of 4 years or more for driving offences causing bodily harm or death are at the higher end of the spectrum (“ une catégorie singularisée ”). [43] Such sentences are usually – but not always – reserved to persons who have a prior record for driving-related offences. The Court in Ferland went on to review four other appellate decisions [44] and stated the following: Il s'agit d'appels de peines imposées à la suite d'accusation de conduite dangereuse causant des lésions corporelles ou causant la mort. Les accusés sont jeunes et n'ont aucun antécédent judiciaire.

L'alcool n'est pas en cause. Le risque de récidive est jugé faible. Les accusés éprouvent des remords sincères. Il ne s'agit pas d'individus criminalisés. Les peines varient de 18 mois à 3 ans d'emprisonnement ferme . [45] [ 111 ] In upholding the 42-month sentence, the Court considered the markedly reckless behaviour of the appellant (a mature middle- aged man), his prior driving-related conviction, the tragic consequences of the collision and its lasting effects on the surviving child and his family members. [ 112 ] In Paré v.

R . , [46] the Quebec Court of Appeal varied concurrent sentences of 5 and 3 years of imprisonment on charges of impaired driving causing death and dangerous driving causing death. The sentences were respectively reduced to 3 years and 30 months. [ 113 ] The factual background of the case can be summarized as follows. The appellant, 36 years old at the time and working as a landscaper, went to two bars to celebrate a contract he had just landed. First, he asked an acquaintance to drive him home because he was inebriated. After she left, however, he decided to drive himself home in his pickup truck.

The appellant’s driving was erratic and dangerous. He switched lanes many times at high speed (120 km/h in a 70 km/h zone). He then crashed violently into the rear of the victim’s car – a small Ford Focus – which was stopped at a red light. The pickup truck demolished the back of the victim’s car, its front bumper pushing all the way into her seat.

The impact was so forceful that it propelled the Ford Focus to the other side of the intersection. [ 114 ] The police officers at the scene observed that the appellant's breath smelled strongly of alcohol, that he had trouble speaking, that his mouth was pasty, and that his gait was unsteady. The breathalyzer test revealed 160 milligrams of alcohol per 100 millilitres of blood, twice the legal limit. The victim, a 22-year-old woman, was taken to hospital, unconscious. She sustained severe head trauma that caused her brain to swell.

She died 17 days later. [ 115 ] The appellant pleaded guilty to both charges (impaired and dangerous driving causing death). He accepted full responsibility for the victim’s death. He had no criminal record, and his driving record indicated no demerit points. The PSR was positive. The risk of reoffending was low. The appellant stopped drinking alcohol after the events. He read a letter addressed to the victim’s parents and expressed genuine remorse. [ 116 ] The Court found that the sentencing judge assigned undue weight to the aggravating circumstances and erred in finding that they were predominant.

While the sentencing judge acknowledged the existence of mitigating factors, he focused exclusively on the gravity of the offence. He tailored sentences that sought solely to fulfill the objectives of denunciation and general deterrence. [ 117 ] The Court emphasized that denunciation and general deterrence can be achieved without the imposition of increasingly harsh prison sentences.

It noted that a penitentiary sentence is dissuasive and sufficient in itself to denounce the crime and deter an ordinary person from committing it. [47] The Court held that the 5 and 3-years concurrent sentences substantially departed from sentences customarily handed down for similar crimes committed by offenders with essentially the same characteristics as the appellant. [ 118 ] In R . v. Gauthier , [48] , the Court of Quebec imposed a sentence of 90 days to be served on an intermittent basis to a young first- time offender. She had just turned 18 at the time of the offence.

She pleaded guilty to dangerous driving causing death. The facts surrounding the offence can be summarized as follows. The offender, along with five friends, decided to go “car surfing”. The victim was riding on top of the moving vehicle driven by the offender. The vehicle was not speeding. The offender braked the car at a stop sign. The victim slid off the top of the car and hit her head on the pavement. She died four days later. She was 17 years old. [ 119 ] The offender was left traumatized by the events. She attempted suicide a year later. She was nevertheless able to maintain her employment.

The Court found that the circumstances relating to the offence were less serious than in cases involving deliberate acts, such as excessive speeding or erratic driving. The offender’s conduct, although still criminal in nature, came closer to an accident. No alcohol or drugs were involved. The victim and her friends voluntarily participated in the “car surfing” activity.

The Court considered the following mitigating factors in crafting the sentence: the guilty plea, the age of the offender, her psychological trauma, her compliance with strict bail conditions and her persistent feelings of remorse. [ 120 ] Silbande v. R . [49] is one of the leading sentencing cases in Quebec in terms of dangerous driving causing death. It is often cited by lower courts. The Court of Appeal upheld a 32-month sentence for dangerous driving causing death and a 24-month concurrent sentence for dangerous driving causing bodily harm (with a 5-year driving prohibition).

The appellant pleaded guilty to both offences. [ 121 ] The Court did not really discuss the facts of this case. The circumstances relating to the offences are exposed in the decision delivered by the sentencing judge. [50] In a nutshell, the appellant, a car fanatic, drove recklessly at a speed of 130 km/h in a 70 km/h rural zone unfamiliar to him. While trying to brake at an intersection, he lost control of the car and crashed. One passenger sustained life- threatening injuries and passed away 11 months later.

The other passenger suffered long lasting bodily harm. [ 122 ] At the time of the offences, the appellant was 18 years old. He had no prior convictions. He was a full-time student and held two to three part-time jobs. By the time of sentencing, he had completed his studies and worked as an apprentice aircraft maintenance

technician. His driving record contained many regulatory offences, including four offences committed after the tragic events. The sentencing judge therefore concluded that there was a risk of reoffending. [ 123 ] On appeal, the appellant argued that the sentences imposed by the trial judge were overly harsh and outside the applicable range of sentences. The Court provided an appendix of the applicable range of sentences.

Upon review of said appendix, Justice Bich speaking for the Court wrote: La jurisprudence regorge d'exemples de peines sanctionnant des infractions de conduite dangereuse causant la mort ou des lésions corporelles. Il en ressort que la fourchette applicable à ces crimes (ou autres crimes analogues) commis par des non-récidivistes, tous âges confondus, varie généralement de 12 à 36 mois d'emprisonnement (voir à ce propos les arrêts Ferland c. R . et Paré c. R . ), malgré quelques peines moindres (6 mois d'emprisonnement, par exemple) ou supérieures (4 ou 5 ans, par exemple).

Les interdictions de conduire sont habituellement d'une durée de 2 à 5 ans, parfois plus. Les ordonnances de probation, dans le cas où l'incarcération est de deux ans ou moins, sont communes. La même fourchette vaut dans le cas des délinquants comme le requérant (c'est-à-dire jeunes et sans antécédents judiciaires ou, du moins, sans antécédents judiciaires notables), bien qu'on observe, lorsque la conduite répréhensible a causé des lésions corporelles, une certaine concentration dans le créneau 12-18 mois , et, lorsqu'elle a causé la mort, dans celui de 18 mois-2 ans moins 1 jour .

Les peines moindres , sans être aussi fréquentes, ne sont cependant pas rares, tout comme le sont les peines de 2 et 3 ans d'emprisonnement . À l'occasion, on trouve des peines plus sévères, généralement justifiées par des circonstances particulières . La fourchette et la distribution des peines à travers celle-ci sont semblables dans les autres provinces . [51] [ 124 ] The Court held that the sentencing judge was mistaken in concluding that there was a risk of reoffending based on the appellant’s driving record.

This conclusion was not only inconsistent with the view expressed by the author of the PSR, but also failed to give sufficient credit to the appellant’s rehabilitation since the incident. Despite this error, the Court found that the sentences imposed to the appellant were not outside the range of applicable sentences for similar offences committed by comparable offenders. [ 125 ] In R . v. Truchon , [52] the Quebec Court of Appeal upheld a 12-month sentence for dangerous driving causing death and an 8- month concurrent sentence for dangerous driving causing bodily harm (with a 4-year driving prohibition).

The offender was found guilty of both offences pursuant to a trial. [ 126 ] The offender drove at a speed of 100 km/h in a 50 km/h urban zone. He noticed that the vehicle ahead of his car was about to shift to the right. Instead of slowing down, the offender maintained his speed and bypassed the vehicle in front of him. In doing so, he crossed the median line into the oncoming lane. His car collided at high speed with the vehicle of the victim who at the time, was making an illegal U-turn. The victim died the next day as a result of the crash.

The evidence demonstrated that she was impaired by alcohol at the time of the collision. Her friend, who was on the front passenger seat, lost consciousness and sustained a severe concussion. [ 127 ] The offender was 22 years old at the time of the offences. He had no criminal or driving record. He expressed remorse and shame for his conduct. The risk of reoffending was assessed as low. The offender was gainfully employed. The sentencing judge considered these factors and concluded that a penitentiary term – as sought by Crown counsel – was not warranted.

The judge placed emphasis on the offender’s rehabilitation and favourable profile to justify the 12-month and 8-month sentences. [53] [ 128 ] On appeal, the Crown argued that the sentencing judge gave insufficient weight to the objectives of denunciation and deterrence. The Court disagreed. It held that the sentencing judge was entitled to place emphasis on the offender’s rehabilitation. It also underscored that a jail sentence carries significant deterrence.

The Court stated the following: Par ailleurs, les peines infligées à l'appelant, bien que clémentes, ne se situent pas pour autant à l'extérieur de la fourchette des peines en semblables matières. Dans son jugement, le juge passe en revue les principaux arrêts de la Cour rendus en matière de peine pour conduite dangereuse, dont l'arrêt Silbande , qui recense des peines en ce domaine se situant entre douze et trente-six mois . [54] [ 129 ] In R . v.

Djema , [55] the Court of Quebec imposed a 20-month sentence of imprisonment on a charge of dangerous driving causing death and a 1-month consecutive sentence on a charge of breach of conditions. The offender pleaded guilty to both charges. [ 130 ] On the day of the offence, the offender was driving way above the speed limit on a street of Montreal (some 120 km/h in a 50 km/h zone) with three passengers in his car. To pass the vehicle ahead of him, the offender crossed the median line into the oncoming lane. A police cruiser facing the offender’s car had to brake abruptly to avoid a collision.

The police cruiser attempted a U-turn to chase the offender but lost sight of him. The offender’s car then failed to stop at a traffic light and crashed into a cab. The impact caused the cab to skid over a distance and hit a signpost. The offender’s car continued its trajectory until it struck another vehicle. Surprisingly, the decision does not mention who passed away as a result of the offender’s dangerous driving. Four months later, the offender was intercepted at the wheel of his car despite a court-imposed bail condition prohibiting him from driving.

He was given a ticket for driving in a manner dangerous to the public and was arrested for breach of conditions. [ 131 ] The offender was young and had no prior convictions. He had a driving record which included two offences for failure to stop at a stop sign. The PSR was positive and the risk of reoffending low. He fully acknowledged his responsibility and expressed sincere remorse. The Court considered the offender’s driving record and the regulatory offence committed four months after the tragic incident to be aggravating.

The sentencing judge also took into account the extent of the offender’s recklessness on the day of the events and the fact that one of the passengers asked him to slow down prior to the collision. [ 132 ] The Court found that a 30-month sentence was appropriate on the charge of dangerous driving causing death but deducted a credit of 10 months for pre-sentence custody. Leblond J.C.Q. stated: […] Les circonstances de la présente affaire sont d’une gravité élevée. Il y a lieu de mettre l’accent sur la dénonciation et la dissuasion générale, et à ce

titre une peine de trois ans pourrait certes s’imposer. Par contre, les circonstances atténuantes et plus précisément le jeune âge et l’immaturité de l’accusé au moment des événements commandent de relativiser les objectifs de dénonciation et de

dissuasion générale. Il s’agit somme toute de la nécessaire individualisation de la peine. Le Tribunal doit faire preuve de modération et ne pas imposer une peine qui ne favoriserait pas la réhabilitation de l’accusé. À la lumière des circonstances aggravantes et atténuantes, le Tribunal considère qu’une peine de 30 mois devrait être imposée sur le chef de conduite dangereuse causant la mort […] [56] [ 133 ] In R . v. Dupuis [57] , the offender was found guilty after trial of dangerous driving causing death.

He was sentenced to 90 days of imprisonment to be served intermittently, along with a 2-year driving prohibition. [ 134 ] On the day of the events, the offender was driving his road truck slightly beyond the speed limit (62 km/h in a 50 km/h zone). He failed to stop at a yellow light about to turn red and struck the victim’s vehicle. The impact caused the victim’s vehicle to hit another truck parked on the street. The victim died instantaneously. [ 135 ] The offender was 24 years old. He had no criminal record. He was gainfully employed.

Witnesses at the sentencing hearing described him as a model employee and dedicated father. Few months before the events, the offender experienced a traumatic situation. A man committed suicide by throwing himself under his truck. The offender had to take a leave of absence due to a post-traumatic stress disorder. He only returned to work shortly before the events. Experts concluded that the offender’s judgment on the day of the events was still affected by his earlier traumatic experience. The offender stopped working as a truck driver after the incident.

He attended therapy sessions to help him cope with his psychological distress. He showed extreme remorse. He wrote a poignant excuse letter to the relatives of the victim. The judicial process had a deterrent effect on him. [ 136 ] The Court recognized the importance of denunciation and deterrence in sentencing for dangerous driving causing death. Relying on the case of Silbande , the judge stated that the applicable range of sentences is usually between 12 months to 3 years of incarceration.

The judge pointed out that courts have also imposed lenient sentences outside the applicable range, including intermittent jail sentences. [ 137 ] The offence was very serious. However, the Court cautioned against imposing disproportionate sentences on the sole basis of denunciation and deterrence. The sentencing judge found that the mitigating factors far outweighed the aggravating factors. According to him, the offender had an exemplary profile and the risk of reoffending was low, in particular with respect to driving offences. There was convincing evidence of rehabilitation.

The judge believed that society would not benefit in any way from a long term of incarceration. [ 138 ] Regarding the circumstances of the offence, the sentencing judge noted that the offender did not drive erratically or at excessive speed for an extended period of time. This was not a case of “road rage” or “car racing”. No alcohol or drugs were involved. Such aggravating factors were not present in the case.

After weighing all relevant factors, the Court concluded as follows: Dans les circonstances du présent dossier, cela peut permettre au Tribunal de déroger à la fourchette des peines en la matière et à la règle établie par la Cour d'appel qui nous demandent d'accorder un poids significatif aux objectifs d'exemplarité, de dissuasion et de réprobation sociale lorsque le juge soupèse les différents principes et objectifs de la détermination de la peine. [58] Sentencing case law – the drug offences [ 139 ] During final submissions, the parties mostly focused on the driving offence.

They placed little emphasis on the drug offences. This is not surprising. While there is a significant gap between the positions of the parties on sentencing the driving offence, there is less divergence with respect to the drug offences. [ 140 ] In fact, the parties are not far apart in their proposals. Let us recall that Defence counsel suggested a 12-month sentence in the drug file whereas Crown counsel argued that a 18-

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