2015 MBPC 34, 2015 MBPC 34

Cite # 2015 MBPC 34 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) B. McGill for the Crown ) - and – ) ) Bradley Hiebert ) M. Gould for the Accused ) ) Judgment delivered: July 3, 2015 ) KRAHN, P.J. Overview [ 1 ] Mr.

Hiebert pled guilty to driving while disqualified contrary to the Highway Traffic Act, and flight from a police officer and dangerous driving contrary to the Criminal Code . [ 2 ] The Crown sought a sentence of thirteen months of incarceration to be served in an institution broken down as follows: six months for dangerous driving; six months consecutive for flight from a police officer and one month consecutive for driving while disqualified. [ 3 ] The Defence agreed with the length of the sentence sought by the Crown but invited the Court to lengthen the sentence in order to support the serving of the sentence in the community pursuant to a conditional sentence order. [ 4 ] On June 24, 2015 I imposed sentence and indicated more detailed, written reasons would follow.

These are those reasons. [ 5 ] What is the fit and appropriate sentence in this case? Overview of the Facts [ 6 ] On July 30, 2014 at approximately 12:27 am Mr. Hiebert was operating his vehicle, a green 2005 GMC Sierra. He was seen by the police to be driving in an erratic manner through a construction zone. After some effort to catch up with his truck, the police activated their emergency equipment to conduct a traffic stop. Mr. Hiebert slowed his vehicle but did not stop. Police pulled up alongside Mr. Hiebert’s vehicle. His driver’s window was rolled down.

The police observed that there was a male in the driver’s seat and a female passenger. Mr. Hiebert then pushed hard on the accelerator and pulled away, continuing to drive at high rates of speed. The police reached speeds of 80 or 90 km/h as they gave chase but Mr. Hiebert was still pulling away. He drove through residential areas where the posted speed limit is 50 km/h. He blew through numerous stop signs, making no effort to stop. He continued for approximately four kilometers without stopping. The police lost sight of the vehicle for a short time and found it parked in a driveway.

Police saw the accused running away from the driver’s side of the vehicle. At 12:44 am with the assistance of the police helicopter and the K9 Unit, Mr. Hiebert was found hiding in a yard. [ 7 ] The police spoke to the female passenger who said that she was a casual acquaintance of Mr. Hiebert. They had met at a friend’s place. In fact, at the time she only knew his first name. She did not have a driver’s licence so she’d asked the accused to drive her to the store to pick up some cigarettes. She noticed that he was driving fast through the construction zone and asked him to slow down.

She then heard the lights and sirens of the police. She said she was terrified, screaming and hyper-ventilating in the truck. She felt like she was pinned in the vehicle given the speeds that Mr. Hiebert was driving. She wondered what might be in the truck given Mr. Hiebert’s refusal to stop. She was an unwilling victim to Mr. Hiebert’s driving offences. Mr. Hiebert’s Background [ 8 ] Mr. Hiebert has numerous Highway Traffic Act convictions dating back to 1999.

The most relevant for this sentencing are: • 2004: Speeding 69 km/h in a posted 50 km zone. (I was not told the amount of the fine for this infraction) • 2005: Speeding 104 km/h in a 60 km zone - $380 fine • August 3, 2006: Drive while disqualified - $485.00 fine

• July 2008: Speeding 80 km/h in a 60 km zone • July 7, 2009: Imprudent driving - $167.00 fine [ 9 ] These convictions resulted in a suspension of his driver’s licence, beginning on August 11, 2009. • October 24, 2009: Drive while disqualified - $550.00 fine • May 5, 2010: Drive while disqualified - $700 fine • November 4, 2010: Drive while disqualified - $900 fine • November 4, 2010: Drive with no registration - $292.00 fine • February 6, 2014: Drive while disqualified - $1500 fine [ 10 ] His driver’s licence has been suspended until January 28, 2017. [ 11 ] On his criminal record, he has one previous impaired driving conviction from March 19, 2001 and received a fine of $750 and was prohibited from driving for one year. [ 12 ] Mr.

Hiebert reports in the pre-sentence report (PSR), which was filed as Exhibit S2, that the offences were “idiotic” and “ridiculous”. At page two of the PSR, Mr. Hiebert reported: He felt he was ‘screwed’ when the police started to follow his car, which resulted in panic and what he described as a ‘screw the world mentality.' He explained this mentality was due to extreme feelings of betrayal caused by the end of his relationship and reported he was unable to imagine any worse pain at the time. He recalled thinking, ‘what are (the police) going to do to hurt me?

Nothing’s going to hurt me more than I already am.’ [ 13 ] In terms of the sentence, Mr. Hiebert hoped to serve his sentence in the community by way of a conditional sentence. At page three of the PSR: He explained, “Obviously I’m taking responsibility for what I did, (but going to jail) would mean I’d have to start my business again, worry about my mortgage payments, etc.” The subject informed, “whatever hoops (I need to jump through), I’ll jump.” [ 14 ] Mr. Hiebert is 32 years old. He has the support of his immediate and extended family and two or three close friends.

He had the benefit of a positive, healthy upbringing and was engaged in competitive skiing as a youth. He lives with his parents and pays rent which is intended to go to his future purchase of this home. [ 15 ] In January of this year he started his own auto body business out of the garage in this home. This company has one employee and is doing well. Previously, he was employed at Jim Gauthier Collision Centre as an automotive painter between 2003 and 2013. Mr. Hiebert reported that he does not have a problem with alcohol or drug abuse. Mr.

Hiebert reported that he tries to live a healthy, active lifestyle and goes to the gym every day. One of his friends, Mr. Laquette, offered that he has seen a lot of personal development and growth in Mr. Hiebert since these offences occurred. Another friend, Mr. Campbell, described Mr. Hiebert as “a super nice guy; he has good intentions, but he has some growing up to do. (A sentence) from the Court might help straighten him out; hopefully it does.” [ 16 ] Mr. Hiebert was assessed as a low risk to re-offend and a suitable candidate for community supervision.

His background and his limited criminal record must be taken into account in affixing the appropriate sentence. [ 17 ]

Section 718.2 (

a) of the Criminal Code directs a sentencing judge to consider both aggravating circumstances and mitigating circumstances relating to the offender or the offence. Mitigating Circumstances [ 18 ] Mr. Hiebert expressed his remorse by pleading guilty. He also expressed his remorse before the Court and in the PSR. I will have more to say about this later. Aggravating Circumstances [ 19 ] The manner of driving, including ignoring stop signs while driving at close to twice the posted speed limit are aggravating factors. The flight from the police is an aggravating factor.

The dangerous driving and pursuit took place through residential neighborhoods for an extended distance; the terrifying nature of the offences for the unwilling, innocent passenger are aggravating factors. Principles of Sentencing [ 20 ] The primary principles of sentencing in dangerous driving and flight from a police officer are denunciation and deterrence. In the words of the Manitoba Court of Appeal, these principles mean that: The punishment must express society’s condemnation of the accused’s ways and serve to dissuade others from engaging in similar conduct.

In such cases, an accused is “punished more severely, not because he or she deserves it, but because the Court decides to send a

message to others who may be inclined to engage in similar criminal activity” (see Vancouver (City) v. Ward, 2010 SCC 27, at paragraph29). R. v. Ruizfuentes, 2010 MBCA 90 at paragraph 33. [21] The sentence must also assist in rehabilitation of Mr. Hiebert, provide reparations for the harm done to the victims orcommunity, promote a sense of responsibility in Mr. Hiebert and acknowledge the harm done to the community, by virtue of

section 718of the Criminal Code.

Section 718.2 (

d) requires a sentencing judge to not deprive an offender of his liberty if less restrictive sanctionsare appropriate in all the circumstances. What is the Range of Sentences that are imposed for Dangerous Driving and Fleeing from Police? [22] In R. v. Brackenreed, 2010 MBQB 24 , on a

summary conviction appeal by the accused, the appeal court upheld thetwo month conditional sentence that was imposed by the sentencing judge on an offence of flight from a police officer. Mr. Brackenreedwas 52 years old and had no prior record. He drove for five miles at speeds reaching 150 km/h on rural gravel roads. He thought he wasbeing pursued by someone he had a dispute with at a curling club. After reviewing numerous sentences, the Court noted that sentencesranged from non-custodial sentences to jail sentences, even for offenders with no prior criminal records. [23] In R. v.

Burnett, 2007 ABCA 299 , consecutive sentences of twenty and twenty-two months for the flight from peaceofficer and ten and twelve months for drive while disqualified were imposed. These sentences were upheld on appeal. That case isdistinguishable from the one now before the Court because the accused had numerous related convictions on his criminal record and hewas dealing with two separate incidents of flight from police and drive while disqualified.

The Court of Appeal noted that counsel forBurnett had provided cases “where no injury had occurred and resulted in the imposition of sentences in the sixty day range” (atparagraph 8). [24] In R. v. Pardy, (NL PC), Judge Gorman considered the appropriate sentence in circumstances which aresimilar to the case before me. The 24 year old Mr. Pardy fled from the police on his snowmobile at a high rate of speed. He had arecord for impaired driving and disobeying a court order. A PSR suggested he was a candidate for community supervision.

Thesentencing judge disagreed and imposed a sentence of six months on the dangerous driving and three months on the flight from policeofficer and three months for the drive while disqualified (a Criminal Code offence). After giving consideration to the principle oftotality, the sentencing judge ordered the drive disqualified to be served as a concurrent sentence – a total of nine months incarceration.

He declined to impose a conditional sentence based on the nature of the accused’s driving, a belief that the offender would not complywith conditions and that the conditional sentence would be inconsistent with the principles of sentencing, particularly general deterrenceand denunciation. He concluded that a conditional sentence would not adequately reflect the seriousness of the offence. [25] The same judge sentenced a different offender to a twelve month conditional sentence in R. v. McCarthy, (NL PC), citing the positive antecedents and lack of a criminal record for that offender. [26] In R. v.

Prymak , 2005 ABCA 377 , the Alberta Court of Appeal overturned a 90 day sentence and substituted sixmonth consecutive sentences for the offences of dangerous driving and flight from police. After considering totality, the sentence wasreduced to nine months. The offender had fled from the police at high rate of speed for 25 to 30 miles because he had been drinking. Hehad a dated criminal record and positive supports in the community. [27] In Rogers v.

R., 2008 NLCA 19, the Newfoundland Court of Appeal reviewed sentences for these types of offences andconcluded the range of sentences is wide - from fines and non-custodial sentences to conditional sentences to a period of incarceration ofone year or even in excess of two years for individuals with related criminal records. The Court of Appeal, in that offender appeal of aneighteen month sentence, allowed the appeal and imposed nine months incarceration for dangerous driving and three months consecutivefor the flight from a police officer. Mr.

Rogers fled from the police on an ATV while clutching his two year old child in front of him.

He had a significant criminal record and driving record. [28] I concluded that the sentences advocated by both Crown and Defence counsel, six months for the dangerous driving, six monthsfor the flight from peace officer and 30 days on the drive while disqualified fell within an appropriate range of sentence. [29] The Manitoba Court of Appeal has directed sentencing judges to consider the moral blameworthiness of an offender whenimposing sentences on dangerous driving: … In sentencing individuals for dangerous driving offences, the facts become crucial.

They can vary in a continuum from a short periodof inattention, perhaps a violation of a traffic control signal, through to those that involve significant impairment while knowingly drivingunsafe vehicles and prolonged periods of driving at high rates of speed. In passing sentence, the judge must assess the moral blameworthiness involved in each case. It is not sufficient to look only at the tragicconsequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentenceshould express society’s denunciation of the conduct involved.

Therefore, the nature of the blameworthy conduct that led to theconsequences must be considered. R. v. Eckert, 2006 MBCA 6 at paragraphs 15-16. [30] In this case, Mr. Hiebert’s moral blameworthiness is very high. He knowingly and deliberately refused to stop for the police fora distance of four kilometers. He had an unwilling passenger who was yelling at him to stop and he just kept telling her it would be ok. All the while, the police were following him with lights and sirens activated. He ignored several stop signs in a residential area. He

drove in excess of 80 or 90 km/h per hour in a posted 50 km/h zone. [31] While he explained that he was depressed due to the end of his five year relationship a short time before, his driving recordrevealed a history of poor driving, and driving in contravention of being disqualified from driving – he has a conviction for imprudentdriving, three speeding offences and five previous drive while disqualified offences.

His poor driving history predates his expresseddepression at the time of the offences now before the Court and reduces the weight of that factor – he was driving poorly and incontravention of a driving suspension on multiple occasions even before his relationship ended. [32] There is no difference between the mental element of an offender who commits the offence of dangerous driving and theoffence of dangerous driving cause bodily harm or death. The difference between those offences is one of consequences. Theconsequences of death or bodily harm are never intended by dangerous drivers.

In this case, the fact that Mr. Hiebert did not causebodily harm or death is a matter of good fortune and not a lack of deliberate, risk taking. His moral culpability or blameworthiness ishigh in this case. [33] I pause here to recognize that the Manitoba Court of Appeal in Ruizfuentes, reminded sentencing judges not to confuse a drivingrecord, which are regulatory offences, with a criminal record.

However, the Court noted that the driving history does offer reliableinformation about future behaviour. [34] In my view, the appropriate sentence in this case for the offences of dangerous driving and fleeing from a police officer eachwarranted the sentence of four months incarceration. Should these Sentences be Consecutive or Concurrent? [35] The Manitoba Court of Appeal has recognized that “when offences should be treated as concurrent as opposed to consecutive isnot an easy one.” R. v. Maroti, 2010 MBCA 54 at paragraph 12.

While noting that it is difficult to provide a road map forsentencing judges given the factual nature of the inquiry, nonetheless it has provided some guidance. Generally, if there is a sufficientfactual nexus between offences, concurrent sentences are warranted. Consecutive sentences are more frequently imposed for offencesseparated in time and location. As in Maroti, most cases from the Manitoba Court of Appeal dealing with the issue of concurrent versusconsecutive sentences have been made in the context of a crime spree, often robberies by a drug addicted offender: R. v. Arbuthnot (S.M.), 2009 MBCA 106; R. v.

Lagimodiere (S.M.E.), 2008 MBCA 137 ; R. v. Taylor, 2010 MBCA 103 ; R. v.Simon, 2007 MBCA 97 and R. v. Kozussek 2013, MBCA 52 . [36] While the Crown admitted in this case that there was a significant factual overlap in the offences of fleeing from police anddangerous driving, it relied on R. v. Roberts, 2005 ABCA 11 to argue that these should be consecutive sentences. The AlbertaCourt of Appeal concluded that flight from a police officer is a new separate crime.

The Court said (as happened here) at paragraph 33,that “Usually drivers flee because they are either then committing another offence, or have clear evidence of another offence in theirvehicle. Often the vehicle is stolen.” The Court concluded to give a concurrent sentence would be a judicial repeal of Parliament’s new(enacted in 2000) criminal flight crime. The Court held that normally consecutive sentences should be imposed. The offences at issuewere possession of a stolen vehicle and flight from a peace officer causing bodily harm.

These are very separate offences, both factuallyand legally. [37] Subsequently, the Alberta Court of Appeal has considered the same issue in R. v. Cardinal, 2011 ABCA 195 . TheCourt restated a principle from Roberts that “the sentencing regime should not create an incentive to flee from the police once anothercrime has been committed.” The Court further concluded that where there was a significant overlap in the factual circumstances of theflight from police officer and dangerous driving, a concurrent sentence can be imposed.

The same principles were applied in R. v.DeSouza, 2011 ABCA 220 where the dangerous driving occurred prior to the police chase and warranted a consecutivesentence. [38] In R. v. Akapew (2009), 2009 SKCA 137 , 249 C.C.C. (3d) 212 (Sask. C.A.), the Court adopted the principlesenunciated in Roberts (at paragraph 47). The Court concluded that flight from police officer charges should result in sentences which arelonger than the underlying offence which the flight from police officer is meant to evade (at paragraph 55). [39] In R. v.

Vidal, 2009 BCSC 1095 , the Court considered the imposition of concurrent or consecutive sentences fordriving while disqualified, dangerous driving and fleeing from police. In that case the Crown argued that the dangerous driving andfleeing from police sentences should be served concurrently.

The Court agreed that they were part of the “same endeavor.” The Courtfelt that the drive disqualified did warrant a consecutive sentence because it protected a different “societal interest” but when consideredwith the principle of totality, elected to impose that sentence concurrently as well. [40] In Vidal, the Court referred to R. v. Hudson [1995] B.C.J. No. 417. In Hudson the British Columbia Court of Appeal upheld asentence as fit where a concurrent sentence imposed on offences of dangerous driving and driving while disqualified would have been onthe high end when considered individually.

However, when considered globally, the sentence was fit. The Court of Appeal in Hudsonheld that ordinarily driving while disqualified should merit a consecutive sentence. [41] In Rogers v. R, 2008 NLCA 19 , the Newfoundland Court of Appeal imposed consecutive sentences for the offences ofdangerous driving and flight from a police officer but the Court did not engage in express consideration of why these sentences should beconsecutive. [42] In the case before me, a concurrent sentence could properly be imposed because many of the same facts underlie the dangerousdriving and the flight from a police officer.

And yet, when one considers the fact that the flight from the police officer while drivingdangerously, necessarily required the police to also drive at excessive speeds in order to attempt to apprehend Mr. Hiebert, it multipliedthe dangerousness created by Mr. Hiebert. Now two cars were driving at excessive speeds through residential areas. It endangered thepursuing police and both cars also posed a danger to the unsuspecting public.

As recognized in Cardinal, “the addition of the dangerousdriving raises the moral culpability, and dangerous driving is not a necessary element to flight from the police.” (at paragraph 4). HereMr. Hiebert deliberately chose to run from the police - as they pulled up beside him to stop him, he chose to accelerate quickly and

continued to evade for four kilometers. It is for these reasons, that I adopt the principles set out in Roberts as appropriate in this case andI impose a sentence of four months consecutive on both the dangerous driving and the flight from the police officer. In my view,consecutive sentences properly reflect the separate legal elements of both offences and the added danger of fleeing from the police. [43] I impose a sentence of thirty days on the driving while disqualified under the Highway Traffic Act. This is Mr. Hiebert’s sixthconviction for driving while disqualified.

The offence of driving while disqualified engages the different societal interest of punishingthose who disregard the Court or in this case, the Motor Vehicle Branch’s driving prohibitions. It is also a distinct offence which wascomplete at the moment police first observed him driving erratically in the construction zone. The driving while disqualified is to beserved consecutively. [44] Given the imposition of consecutive sentences, I must take a last look, to ensure that the principle of totality was not offended.

This principle is really a reflection of the principle of proportionality – I must ensure that the sentence does not exceed the offender’smoral culpability in relation to the offences. These are Mr. Hiebert’s second and third criminal convictions. The principle of restraint,codified in

section 718.2(

d) must be considered. I also consider the significant overlap in the facts on both the dangerous driving andflight from a police officer and reduce the sentence on the flight from a police officer by two months. [45] To summarize, the sentence imposed is as follows: • Drive while disqualified under the Highway Traffic Act: 30 days consecutive; • Flight from a police officer: Two months consecutive • Dangerous driving: Four months consecutive. The total sentence is one of seven months.

Can this Sentence be served Conditionally in the Community? [46] A conditional sentence can address principles of denunciation and deterrence and rehabilitation. In R. v. Proulx [2000] 1 S.C.R.61, 2000 SCC 5 , the Supreme Court of Canada concluded: Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goalsmight be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence,even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, theduration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to beserved. Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. (Paragraphs 114-115) [47] In Proulx, the Supreme Court of Canada re-instated an eighteenth month sentence to be served in a correctional facility,overturning the conditional sentence given the emphasis of denunciation and deterrence for the offence of dangerous driving causedeath.

The eighteen year old offender in that case, who had no prior criminal record, drove a mechanically unsound vehicle, havingconsumed alcohol, dangerously through residential streets causing the fatal accident. [48] In R. v. Eckert, the Manitoba Court of Appeal, overturned a conditional sentence and substituted imprisonment in circumstanceswhere the circumstances of the offence (minus the tragic consequences) and the offender were similar to the offences before me.

Mr.Eckert was twenty-five years old and had a terrible driving record including eleven convictions for speeding, stunting and disobeyingtraffic control devices. He drove dangerously down a busy street, driving through a red light and then at exceedingly high rates of speedin a residential neighborhood until he hit another vehicle killing the occupant. The rates of speed over an extended distance, including ina residential neighborhood, disobeying traffic control devices and the driving record are similar to the case before me.

In Eckert, theaccused was also charged with speeding and criminal offences following the dangerous driving which put public safety at risk if he wereto be allowed to serve his sentence in the community. [49] A conditional sentence of imprisonment was substituted for institutional incarceration in R. v. Duchominsky, 2003 MBCA 19. I note that in Duchominsky, the fatal accident and dangerous driving were preceded by normal driving so that the dangerousdriving was short-lived as the offender drove through a red light. There was no evidence of speeding.

The offender had one convictionfor refuse breathalyzer and no driving record. [50] In R. v. Wallace, 2012 MBCA 54 , the Court of Appeal upheld a conditional sentence of imprisonment where theoffender drove at very high rates of speed in a residential neighborhood – at the time of impact his speed was 136 kilometers in a 50kilometer per hour zone. The offender had no criminal record and only one conviction for speeding on his driving record. He hadstopped drinking since the accident. He, like Mr. Hiebert, had positive family supports.

The appeal court found that the sentencingproperly considered all of the aggravating circumstances and did not commit an error in principle in allowing the sentence to be served inthe community.

[ 51 ] I have concluded that a conditional sentence is not appropriate in this case for the following reasons: [ 52 ] I am not satisfied that it would not endanger the community. While the accused is a low risk to re-offend generally, the five previous convictions for driving while disqualified show a disregard for State imposed rules and prohibitions. Similar to R. v. Ruizfuentes 2010 MBCA 90 at paragraph 55 and Eckhart , the driving record in my view offers a good prediction of future behaviour. If the accused continues to drive he will endanger the public.

To impose a conditional sentence, I have to have confidence that Mr.

Hiebert will comply with court imposed conditions; based on the driving record I do not have that confidence. [ 53 ] I also do not believe that a conditional sentence is consistent with the fundamental principles of sentence – particularly denunciation, specific and general deterrence. [ 54 ] In terms of specific deterrence, the accused apologized to this Court for the waste of the city’s resources by use of the helicopter for such a “miniscule matter.” These words together with the lack of recognition in the PSR of how his actions endangered the public, including his passenger, led me to conclude he still does not get it.

This was not a matter of avoiding jail by jumping through hoops. This was not a miniscule matter. It was a criminal and dangerous matter which justified the use of city resources. It was not the use of resources that makes this dangerous – it was driving for a prolonged period through residential streets, making no effort to stop at stop signs, all the while police are giving chase with lights and sirens activated. A jail sentence is warranted for this offender specifically, as his friend Mr. Campbell put it, for Mr.

Hiebert “to grow up” and send the message that serious consequences will follow these significant crimes. [ 55 ] In my view, general deterrence also mandates a term in an institution to reflect the seriousness of the dangerous driving which is aggravated by fleeing from the police. [ 56 ] I considered whether a further period of probation was necessary and concluded it was not based on the positive supports that are already in place for Mr. Hiebert. His convictions are not related to any alcohol or drug addiction.

I do not believe a further period of probation is necessary to aid his rehabilitation. [ 57 ] I impose a two year driving prohibition once Mr. Hiebert is released from custody. I also impose the mandatory victim surcharge on the two criminal offences. “ORIGINAL SIGNED BY:” KRAHN, P.J.