R. v. MacDougall, 2011 NSPC 12

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacDougall, 2011 NSPC 12 Date: 20110315 Docket: 1998231 Registry: Sydney BETWEEN Her Majesty the Queen and Eric Devoe MacDougall REASONS FOR SENTENCE Before: The Honourable Judge A. Peter Ross Date: March 15, 2011 Place : Baddeck, Nova Scotia Charges: Impaired Driving Causing Death Counsel: For the Crown, Diane McGrath For the Defense, William P. Burchell

Note to readers: the following decision, delivered orally at Baddeck on March 15, 2011, has been edited for publication. The facts of the case may be found in the trial decision at [2011] N.S.J. No.100 (Editorial Note- 2011 NSPC 7 ). Unedited and complete remarks may be found in the electronic record. BY THE COURT: [ 1 ] Thank you for the few minutes to consider the summations here. It’s been a long wait for everyone, especially Mr. MacDougall, but also for the members of the victim’s family and others. Probably the last few minutes seemed like the longest wait of all. Like others, including Mr.

MacDougall, I’ve been thinking about the possible sentence in this case since entering a verdict of guilty. [ 2 ] Before me is a young man, a fine young man, whose actions and whose choices one fateful night two years ago contributed to the death of a fine young woman. Eric MacDougall no more intended harm to Emily Cardwell than anyone else in this courtroom intended harm to Emily Cardwell. But his fateful decision to drink and drive has landed him here, found guilty after a trial of a very serious criminal offence. [ 3 ] I’d like to begin by extending my appreciation to counsel, Crown and Defense.

A number of important issues were litigated in the course of this proceeding and this has been a particular difficult case in many respects. I also want to extend my appreciation to those who spoke today. One cannot help but sympathize with them, with the families of Mr. MacDougall and Emily Cardwell. Their statements were eloquent, measured and thoughtful; they were not vengeful; they were not shallow pleas for mercy. They are heartbreaking in their effect. Tragic has become an overused word in society today. It’s used to describe things which are not tragic at all, but merely sad.

But here I think there is no risk of hyperbole in calling this a tragic incident. [ 4 ] Sentencing, however, is not a matter only of sympathy or of its ugly counterpart retribution. Sentencing must not be governed by emotion. While it is contextual and grounded in the facts of the case, while courts must listen to the human dimension of things, to the impact on people, it must proceed according to legal principles. Here the Crown has recommended a two and a half to a three and a half year penitentiary sentence.

Defense has submitted that an appropriate sentence is the maximum possible period of probation of three years with penal conditions, which I assume to mean a curfew, community service work and that kind of thing: things that would restrict Mr. MacDougall’s liberty and require him to pay back a debt to society in some other way than by going into prison with a criminal population. [ 5 ] Both sentences are theoretically possible. Both would be legal in the sense that they are permissible within the context of the Criminal Code . The real question though is what sentence is fit and appropriate and it is

here that the case law comes to bear on the issue of sentence. [6] Courts serve society by resolving conflict. In this case there were a number of conflicts. There was a conflict between police powers and the liberty of the subject. I refer here, of course, to the demand for the breathsamples. With respect to the blood samples at the hospital, there was a conflict between the privacy of the individual within the healthcare system and the right of the prosecution to relevant evidence.

At the trial there was conflicting opinion between respected experts onthe effect of alcohol and at what level blood alcohol creates impairment of driving ability. And here at sentencing, there is anotherconflict. It is a conflict between its private and public aspects. [7] Mr. MacDougall’s personal circumstances, the fact that he is and should remain a productive member of society, these are very important considerations. They are more focused on Mr. MacDougall and his interests,although his being a productive member of society and not being damaged in a prison environment - there is a public dimension to that.

The more typical public dimension is the matter of the evils and dangers of drinking and driving and the need for denunciation anddeterrence of such conduct. This is the conflict today in this case, perhaps over simplified, but it comes down to that. Courts serve toresolve conflicts, I suppose. I started out by saying that, but it must be acknowledged that a sentence can no more satisfy both theseinterests than it can bring Emily Cardwell back to life. [8] The people who come in to this Court are frequently young men.

But people who come in to plea to drinking and driving do not exemplify the typical criminal profile. Although what I am about to say is anecdotal andnot based on hard statistics, it’s my impression that most people charged with this offence are usually older than the average criminal, almost a different generation than Mr. MacDougall. As the Supreme Court of Canada has said it’s not unusual that an offender beforethe Court on an impaired driving or an impaired driving causing bodily harm or death is a first time offender. Often people charged witha s. 253 (

a) and (

b) offences are first time offenders, are in court for the first time, and are people of good character. [9] This has some bearing on the applicability on the principle of deterrence. Some question the effectiveness of deterrence and question whether it ought to be a rationale for sentencing at all, where the root causes ofcrime are found in socioeconomic factors like broken homes, drug abuse or poverty.

Doubts are often voiced about the effectiveness ofgeneral deterrence and people ask “does the message of a jail sentence fall on deaf ears?” But some behaviors are more amenable togeneral deterrence and the Supreme Court of Canada in R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61 intimates that drinkingand driving is one offence where deterrence may be particularly effective and, therefore, relevant. [10] In this case I need to consider the importance of precedent to the decision I have to make.

The importance of precedent resides partly in the facts of the cases, but it also resides in more general principles distilled fromthose facts. The Crown has supplied a number of cases. I know there are very few available for the Defense. The Crown’s casesinclude R. v. Morine [2011] N.S.J. No. 61 about which I intend to say a little more later. In that case there was a five year Penitentiarysentence for an impaired causing death. In the R. V. Ruizfuentes 2010 MBCA 90 case, four and a half years; R v.

Junkert 2010 ONCA 549, The Ontario Court of Appeal, a case from this year, a five year sentence for someone who had a 130 mgof alcohol in their blood. In R. v. Ramage 2010 ONCA 488, a sentence of four years imprisonment. In R. v. Litchfield 2010 ABPC 13in Alberta, again, a case from this year, two years imprisonment where the victim was the accused’s wife. [11] With Morine defense has said correctly that there are significant differences between that case and this including what the driver did immediately after the crash, which, of course, is very different than how Mr.MacDougall behaved.

At the same time, the Court did describe Mr. Morine as a vulnerable first offender. The vulnerability of Mr.MacDougall has been alluded to very eloquently by many of the people who wrote letters and I’m aware that Mr. Morine was describedin similar terms by the Court there. In the end though, the significance of Morine does not reside exclusively in the facts. It resides morein some general principles which were referred to and applied by that court.

[12] Sentencing decisions from the higher levels of courts are not binding in quite the same fashion as decisions on discreet points of law. But, nevertheless, having said all of this Morine is an important case for me toconsider, both for what it is in and of itself, and for what it reveals about the state of the law of sentencing for impaired driving causingdeath in Nova Scotia. At paragraph 78, the Justice in Morine refers to a number of cases: R. v. Cooper 2007 N.S.J. No. 179 (S.C.) wherethere was a seven year sentence; R. v. Hall 2007 ONCA 8 , 2007 O.J.

No. 49 (C.A.), where there was a four year and ten monthsentence; R. v. MacEachern (NS CA), [1990] N.S.J. No. 82 (C.A.) where there was a five year sentence wheresomeone killed a pedestrian; R v. Nickerson [1991] N.S.J. No. 48 where a five year sentence was imposed for impaired causing death. Mr. Nickerson was described as a hard working young man with no prior record. Junkert and Ruizfuentes were mentioned here and inthe very next paragraph, the Justice in Morine concludes that the appropriate range of sentence for impaired driving causing death isthree to five years.

As I say, that is not strictly binding on me and defense counsel, again, has articulated that point quite well. But, it isa bald fact that in such cases penitentiary terms are almost invariably imposed. Morine also referred to comments from other caseswhich are informative. From the case R v. Cromwell 2005 NSCA 137the following comment is extracted: “Drunk driving is a crime of distressing proportions. The Courts have consistently recognized that the carnage wrought by drunk driversis unabating and causes significant social loss.” [13] That statement was made by a Justice of our Court of Appeal 2005. In R v.

MacLeod (2004) 2004 NSCA 31 , 222 N.S.R. (2d) 56 Justice Cromwell said the following in increasing a sentence from aconditional sentence to a jail sentence: “Generally incarceration should be used with restraint where the justification is general deterrence.

However, I also accept the view ofthe Ontario Court of Appeal shared by the Supreme Court of Canada in Proulx that offences such as this are more likely to be influencedby a general deterrent effect.” [14] In the previous decision in Cromwell Justice Bateman concludes by saying, “the sentence must provide a clear message to the public that drinking and driving is a crime is a crime, not simply an error in judgment”. [15] These are not just commentaries or suggestions or hints.

These are statements of principle from the highest court in this province and they are intended as guidance to trial courts and to sentencing Judges. [16] I’d like to say a brief word about choice. The criminal justice system is predicated on people making choices. In R v. Ruzik 2001 SCC 24 , [2001] 1 S.C.R. 687 which is a Supreme Court of Canada case from2001, the Court said: “Voluntariness is the critical importance of autonomy in the attribution of criminal liability. The treatment of criminal offenders asrational autonomous and choosing agents is a fundamental organizing principle of our criminal law.

Criminal liability depends on thecapacity to choose, the ability to reason right from wrong.” [17] In R v. Chaulk (SCC), [1990] S.C.J. No. 139 which is again a Supreme Court of Canada

case, Justice McLachlin, in her judgement, citing G. Ferguson, at paragraph [192], states: “It is these dual capacities, reason and choice, which give moral justification to imposing criminal responsibility and punishment on offenders.” [ 18 ] A number of people involved in this tragic episode made choices. A friend asked for a drive home. That was a choice. To ask for a drive, a mere request, can’t hurt another person even though it is unwise to ask for a drive from someone who is drinking. A number of people got in the car with Mr. MacDougall knowing that he was drinking.

That’s not criminal conduct either, although as parents we would not want our children to do this. In and of itself this doesn’t cause harm to anyone else although it puts the individual at risk. To drink underage is a choice, but in and of itself does little harm to other people. Society doesn’t like it, it is regulated, kids get fines for it, but it is not criminal conduct. The victim’s choice not to wear a seatbelt: it is better to put on a seatbelt, people are safer when they do. The law encourages the use of seatbelts. It provides a fine for someone who doesn’t do it.

But, again the risk is not to other people. We want to encourage wearing seatbelts, we don’t want people getting injured unnecessarily, but it’s not considered a criminal act not to put on a seatbelt. [ 19 ] Drinking and driving: that choice is a very different category of conduct, precisely because it poses a grave risk to other innocent people. The choice to do this doesn’t just put the actor at risk, but other innocent members of the public.

The victims of this are not targeted like the victims of an assault or a break and enter, but they are no less real and the penalties even for simple impaired driving where there are no other consequences reflect the seriousness of this conduct. The Criminal Code provides for high minimum fines for a minimum one year driving prohibition. Where there are subsequent convictions, second, third offences are into mandatory jail sentences and this is simply for impaired driving.

Where there is impaired driving with the dangers realized, where the potential consequences become real consequences as they are here, these are instances where the law calls for very serious sanctions. For impaired driving causing death Parliament has provided the maximum penalty available in law. And so in this context, of choices and of risk, the Crown has said, quite correctly, that Mr. MacDougall had no right to gamble with someone else’s life, however, he wanted to risk his own.

It must be remembered that in crashing that vehicle he might have killed any one of the people in that car. [ 20 ] Much has been said here about specific and general deterrence. Specific deterrence is the idea that you try to send a message to the individual so that they don’t come back to court, so they won’t commit another crime. It addresses the individual accused. I don’t think that specific deterrence is needed here. I don’t need to send Mr. MacDougall a message. He understands full well what happened and he lives with it, he experiences it, in his own way.

While I doubt his pain matches that of the parents and stepmother of Ms. Cardwell, he bares the additional burden of guilt. [ 21 ] General deterrence though, that is very much in issue here. It addresses not the individual accused, but others. Every day in this country people make the choice whether to drink and drive, or not. Drinking is common, driving is nearly ubiquitous, but the law seeks to prohibit the doing of both together.

In theory (thinking of choice and general deterrence and how they operate together) the invisible hand of the law comes down on the shoulder of a young man in Baddeck, or Sydney, or Saskatoon at the moment when the thought of driving while impaired arises. By its touch it warns of the danger and the possible consequences. By the example it has set it hopes to influence that decision and prevent the person from getting behind the wheel no matter who may be imploring him to do so, no matter what the need may be. [ 22 ] The other principle that goes hand in hand with deterrence is denunciation.

By that principle the Court hopes to influence general attitudes about the conduct, which in this case is drinking and driving. It hopes to influence those general attitudes so that others disapprove of a person’s decision to drink and drive rather than encouraging it as some

here did. [ 23 ] This calls to mind the letter, the very eloquent letter, supplied by Denise MacKinnon where she (as did others) expresses so well her thoughts about this. She said he was newly licensed, out with friends and enjoying life when a friend asked him repeatedly for a drive to Wreck Cove. He gave in to her coaxing and agreed. Eric made the wrong decision.

The principle of general deterrence, as I say, speaks to what other influences come to bear when you are at a party and drinking and somebody asks you to drive them home. [ 24 ] Quite often at a sentencing, the accused is admonished by the Court to turn his life around, to change their ways, do something productive, get an education. I have no admonishments for Eric MacDougall. Eric MacDougall does not need to turn his life around. He is a productive, hard working, caring individual. He is a credit to his family and he is a credit to society.

He is not antisocial and I think he does understand the dimensions of this tragedy. He is someone who consistently helps others, who cares about others and as someone who does that, he would sympathize and understand the impact of this event upon the parents and the family of Ms. Cardwell. There is a tendency, and an unfortunate one, I think, to look for bad traits in a person who finds himself in trouble - to seize upon some fact. Here, somebody mentioned that he drove ATV’s like a cowboy That doesn’t do justice to Mr. MacDougall; I agree with defense in this respect.

It is only in retrospect, through the lens of this tragedy, that anyone would find serious fault in this. He is not deserving of punishment because he has led an irresponsible lifestyle. As I say, I have no admonishments for him. [ 25 ] He comes here with significant mitigating factors. Again, defense has correctly identified them. He was barely 18 when this happened. He has no prior criminal record. He was performing a favor, although ill advisedly to say the least, and he did behave commendably after the event.

The aggravating factors include the fact that he was drinking underage and the fact that he took on passengers. In fact, he had a car full of them. The risk, because there were passengers, should have been more palpable, more real to him, for that reason alone. If he were just driving alone in the car the danger might be somewhat more abstract. He wouldn’t know what traffic he’s encounter; he might hope he wouldn’t see anyone, hope the cops wouldn’t be around. When somebody is in the car with you, the risk should be even more real. And the blood alcohol level here was significant.

I have concluded that it was at least 108. It may well have been higher. That is a significant level of impairment. And, finally, an aggravating factor is the speeding. The impairment alone may not have caused him to speed. Maybe that’s what Mr. MacDougall means when he says that he doesn’t think the impairment is the reason for what happened. I agree with him to this extent: even impaired he could have shown more prudence than he did in his manner of driving. The speeding is certainly an aggravating factor. [ 26 ] Parliament has defined the maximum term of imprisonment for this offence as life in prison.

Nobody thinks that Mr. MacDougall is going to prison for life, but it does act as Parliament’s manner of defining the objective gravity of offences and so this one falls in with the most serious in the Criminal Code . That statement by Parliament cannot be second guessed by the Courts. It’s a statement that this kind of conduct is extremely serious criminal conduct. And the statement that Parliament has made by making life imprisonment the maximum sentence reverberates in case after case. I’m to be animated here by principles of proportionality and uniformity.

Here the cases almost invariably, perhaps always, result in penitentiary terms of imprisonment. I’m not aware, actually, of any case, certainly not a recent one, where a person before the Court for impaired driving causing death has received less. [ 27 ] Mr. MacDougall, stand up. Mr. MacDougall I have been on the bench for about 20 years and I don’t think I’ve had a more wrenching decision to make than this one. I have some idea of the environment into which you are being sent today to serve a sentence and it is only because I think that nothing less would satisfy the principles of sentencing that I do so.

The least sentence which would be fit and appropriate here is two years in a Federal Penitentiary and that is the sentence I’m imposing. I’m going to impose a two year driving prohibition, again, that being the minimum that I think would still meet the standard of fitness. I do so because of the many mitigating factors that your counsel has referred to. So, your sentence here is two years in the Federal Penitentiary and a two year driving prohibition that will take effect when you are released from custody.

[ 28 ] The remarks I’ve have made will be transcribed and will accompany you to the federal penitentiary system. Obviously, they will make the decisions on placement, programming, parole and that kind of thing. They will also have the benefit of the letters and all of the material that was submitted. I hope that you are able to reintegrate into society in a productive way despite the difficult environment into which you are now being sent. Mr. MacDougall, you are now in custody. Dated at Sydney, Nova Scotia this 15th day of March 2011. ______________________________ Judge A. Peter Ross Provincial Court of Nova Scotia