r v. KEVIN, 2016 QCCQ 12831

R. c. Rowe 2016 QCCQ 12831 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-128976-153 500-01-128975-155 DATE : NOVEMBER 15, 2016 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v. KEVIN ROWE Accused ____________________________________________________________________ SENTENCE ____________________________________________________________________ [ 1 ] Mr.

Rowe pleaded guilty to several charges, all arising out of an incident that occurred while he was driving impaired. The charges read as follows: 1. On or about October 23, 2015, in Montréal, district of Montréal, did operate a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, and thereby did cause bodily harm to Galel Sean Ricardo, committing thereby the indictable offence provided by section 249(3) of the Criminal Code . 2.

On or about October 23, 2015, in Montréal, district of Montréal, operating a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, being pursued by a peace officer operating a motor vehicle, in order to evade the police officer, did fail to stop the vehicle as soon as was reasonable in the circumstances and did cause bodily harm to Galel Sean Ricardo, committing thereby the indictable offence provided by

section 249.1(3) (4)

a) of the Criminal Code . 3. On or about October 23, 2015, in Montréal, district of Montréal, did operate a motor vehicle, while his ability to drive a motor vehicle was impaired by alcohol or a drug and causing thereby bodily harm to Galel Sean Ricardo, committing thereby the indictable offence provided by section 255(2) of the Criminal Code . 4. On or about October 23, 2015, in Montréal, district of Montréal, did have in his possession a substance included in

schedule II, committing thereby the indictable offence provided by section 4(1)

(4) a) of the Controlled Drugs and Substances Act. 5. On or about October 23, 2015, in Montréal, district of Montréal, did have in his possession a substance included in

schedule I, committing thereby the indictable offence provided by section 4(1)

(3) a) of the Controlled Drugs and Substances Act. [ 2 ] He also pleaded guilty to two counts of breaching a recognizance entered into in a previous matter of conjugal violence, by consuming alcohol and by having drugs in his possession. The facts [ 3 ] On October 23, 2015, at around 1 pm, a police operation was underway on Highway 40, intercepting vehicles passing illegally on the right. Constable Gratton spotted the BMW of Mr. Rowe, passing on the right. The officer activated his siren and lights and followed Mr. Rowe who started to slow down but then suddenly accelerated to avoid being pulled over.

He was then observed zigzagging and driving up to 170 km an hour along the highway. Constable Gratton had to abandon the chase because it was too dangerous. Another officer saw the BMW speeding and activated his siren and lights in order to intercept the vehicle. Mr. Rowe continued speeding dangerously, exited at Côte-de-Liesse and proceeded to drive over a cement divider and headed back to Highway 40. He took the ramp in the wrong direction, driving against the oncoming traffic. Constable Gratton’s police car came face-to-face with Mr. Rowe, and he activated his siren and lights. Again Mr.

Rowe accelerated and continued driving on the wrong side of Highway 40, at this point driving on the rim of one wheel because one of his tires was flat. [ 4 ] The cameras along Highway 40 captured the frightening accident that occurred next. Mr. Rowe cut across several lanes of the highway as cars were coming at him in the opposite direction. Mr. Ricardo was driving in the center lane. His view of Mr. Rowe’s car was blocked by a large passing truck. As Mr. Rowe lost control of his car, he hit Mr. Ricardo’s car head-on without allowing Mr.

Ricardo any chance to avoid the accident. [ 5 ] The video of the accident lasts only a few seconds, but long enough to see the regular moving traffic along Highway 40 on a clear afternoon, suddenly disrupted by the frightening sight of a car speeding out of control against the traffic and putting many lives at risk. [ 6 ] The impact with Mr. Ricardo's Honda was violent. Mr. Ricardo suffered serious injuries, specifically a concussion and several fractures. The lasting effects on the victim will be discussed below. [ 7 ] When Mr.

Rowe was finally arrested, the police noticed obvious symptoms of impairment and he admitted to having consumed drugs and alcohol. The police seized from his car 46 g of marijuana, .89 g of hashish and one pill of methamphetamine. The police also found two empty beer cans and one bottle of whiskey with some alcohol still left in the bottle. [ 8 ] Mr. Rowe was driving without a valid license, facing two outstanding warrants for unpaid fines.

As well, not only did he breach the conditions of a recognizance, prohibiting the consumption of drugs and alcohol, he also was under a bench warrant for failing to appear at his sentencing hearing the domestic violence matter. Mr. Rowe was also brought to the hospital following the accident and suffered a broken collarbone and broken ribs. The consequences on the victim [ 9 ] Mr. Ricardo explained the consequences this crime has had on him, first in a letter dated November 11, 2015 then in a letter updated more recently on October 25, 2016.

He explains that this terrifying experience has left him suffering both physically and emotionally. [ 10 ] His physical injuries included internal bleeding, broken ribs, a fractured knee, severe neck and back pain as well as a permanent migraine headache. Despite physiotherapy for six months, he still in suffers excruciating pain to his knee.

This injury has forced him to eliminate all sports activities what had been a big part of his life: until the accident, he actively participated in a competitive hockey league, and as a Second Degree black belt in Taekwondo, he competed and taught that martial art to children. [ 11 ] At 24 years old, he feels that he has been robbed of a productive and enjoyable future. He was supposed to start a new job in November 2015, but has been unable to work at all since the accident, due to major depression, post-traumatic stress disorder and anxiety.

His motivation and ability to function on a daily basis are thus greatly limited and they are further hampered by the serious side effects caused by the pain medication he must continue to take. [ 12 ] In the words of Mr. Ricardo: “my life went from being exciting, active and full of goals and ambition to being a loner, feeling depressed and unfulfilled, on a roller coaster of emotions every day.” He adds: “I am unsure of how the future is going to treat me. For now it feels like life has stood still for me since the accident.

My only wish is to heal completely and get off all the medication and start working, start being active again, start socializing with my friends and return to being a normal 24-year-old. But for the moment, I feel like it's never going to happen”. The profile of the accused [ 13 ] A presentence report sets out the background and profile of Mr. Rowe.

At 29 years old, saddled with a difficult childhood, a serious alcohol addiction and a criminal record beginning as a young offender, it is only recently, following this last arrest, that he is beginning to take a serious look at his past errors and at his future plans. Mr. Rowe has finally acknowledged his alcohol addiction and has been sober since his incarceration in October 2015. He attends AA meetings regularly in jail. He has the full support of his mother and his sister.

He hopes to become a role model for his two children, 5 and 7 years old, who live with their mother. [ 14 ] The probation officer describes Mr. Rowe as sincere, with a capacity for introspection and self-analysis. This same probation officer evaluated Mr. Rowe four years ago, and she noted a real change in him in terms of his maturity and his readiness to take action to improve his life.

[ 15 ] Just as Mr. Rowe testified in court, the presentence report underlines that he is shaken by the consequences of his crime and expresses remorse and regret for the serious damage he has caused. According to the probation officer, Mr. Rowe’s current motivation to change his lifestyle combined with the unwavering support of his family are factors that significantly reduce the short term risks of reoffending.

As for the long-term risks, they will be dependent on his ability to remain sober. [ 16 ] As for his criminal record, he has accumulated no less than 18 entries involving a variety of criminal activity, beginning with robbery as a young offender, several appearances in youth court for possession of drugs, and breaching probation orders and court orders. As an adult, his record includes theft, mischief, obstruction of a peace officer, being unlawfully at large, failure to comply with court orders and probation orders.

Most recently, on December 1 2015, he was sentenced to 12 months in a matter of domestic violence involving an armed assault and the infliction of bodily harm, and to a fine for two counts of breaching an undertaking. The Crown also tendered his driving record into evidence which documents several infractions of the Highway Safety Code , including four tickets for driving without a license, and one instance of driving against one-way traffic.

The position of the parties [ 17 ] The Defence refers the Court to the extensive overview of sentences rendered in similar matters from 2000 to 2009, as found as an appendix to the Court of Appeal decision in R. v. Ferland [1] . Taking into account all of the factors of this case, and underscoring the rehabilitation of Mr.

Rowe, he recommends a global term of 2 years for the driving offences and 3 months concurrent for the breaches. [ 18 ] The Crown asks the Court to impose a sentence which emphasizes the principles of denunciation and deterrence, particularly in view of the circumstances of the offences, and the extremely dangerous driving. Taking into account the injuries to the victim and the fact that we are dealing with a litany of offences, and not just one offence of dangerous driving causing injuries, she suggests that a global sentence of 4 years is warranted.

General principles [ 19 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code , which provide that the goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This goal is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary;

d) to assist in rehabilitating offenders;

e) to provide reparation for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 20 ] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. A sentence should be similar to sentences imposed on similar offenders for similar offences and the Court must take into account any aggravating or mitigating circumstances relating to the offence or to the offender.

The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 21 ] The objective gravity of the offences is measured by the maximum punishment set out for each offence in the Criminal Code . The offences of driving while impaired and of dangerous driving causing injuries are punishable by a maximum of 10 years. The offence of flight from police causing bodily harm is viewed as a more serious crime, carrying a maximum punishment of 14 years.

This reflects the fact that a conviction of this offence (section 249.1) requires deliberate evasion of the police. As stated plainly by the Alberta Court of Appeal in R. v. Roberts [2] : “One cannot commit this offence without choosing to do so. It is almost inevitable that the offence will be committed to avoid serious jail time for other offences, as was certainly the case here”. [ 22 ] The Quebec Court of Appeal has similarly underscored the serious nature of this offence in R. v. Furtado [3] : La conduite automobile est une activité dangereuse. Une simple inattention peut avoir des résultats catastrophiques.

En l'espèce, il ne s'agit cependant pas d'une inattention. L'intimé a sciemment décidé de conduire dangereusement dans le but de fuir les policiers. Il s'agit là d'infractions que les tribunaux doivent punir sévèrement. [ 23 ] As for the counts involving possession of drugs, the maximum on count 4 is 5 years and on count 5, 7 years. For the breaches, the maximum is 2 years. Aggravating circumstances [ 24 ] The very circumstances of the commission of these offences are aggravating. Mr. Rowe drove at a speed of 170 km an hour to escape the police.

He drove on a busy highway in mid-day traffic in the wrong direction, putting many lives at risk. He has a lengthy record with the SAAQ including several instances of driving while his license was suspended. In fact, on this day, he had no right to drive at all, having had his license revoked again for numerous unpaid fines. His choosing to drive despite the interdiction, just as his many prior breaches of probation and court orders, is evidence of his total disrespect for any type of order.

He was not only under the influence of drugs and alcohol, but he was specifically prohibited from consuming either drugs or alcohol in a court-ordered recognizance. He was fleeing the police, totally unconcerned by the danger he was creating, because he was under a bench warrant, having failed to show up for his sentencing, knowing he would face jail time. He has a lengthy criminal record, albeit without any convictions for this type of offence. In addition, the lasting consequences to Mr. Ricardo are aggravating factors to be considered. Mitigating circumstances [ 25 ] Mr.

Rowe pleaded guilty to all offences charged, thus avoiding the need for a trial. It is true that the evidence against him was overwhelming, but it is nevertheless significant that he has spared Mr. Ricardo the additional trauma of reliving his tragedy through in-court testimony. It must also be noted that Mr. Rowe has expressed sincere remorse and regret for his actions, apologizing in court to his victim. Finally, the presentence report gives a positive outlook on the future prospects for Mr. Rowe, who is making every effort to remain sober and make significant changes to his life.

He plans, at almost 30 years of age, to finally become a productive and law-abiding member of society. With the support of his family and his personal commitment, this seems to be a realistic goal. Analysis [ 26 ] The Court is mindful that this is yet another instance of one individual’s criminal behavior behind the wheel leading to drastic consequences for an innocent victim who unfortunately was in the wrong place at that fraction of a second. It is the nightmare of all law-abiding drivers.

The video recording which captures the brutal accident in real time is a shocking reminder of how all drivers are at the mercy of those who do not respect the rules. Certainly, the sentence imposed must take account of the lasting damage Mr. Ricardo will endure. It can only be hoped that Mr. Ricardo will, with time, rebuild his life and have the strength and courage to overcome his difficulties. But the Court cannot impose a sentence meant to seek revenge, and although reparation is a lofty goal where it is feasible, there is no sentence that could ever provide true reparation to Mr.

Ricardo. [ 27 ] Considering all of the factors noted, it is clear that the sentence to be imposed must be sufficiently deterrent, both generally and specifically. The importance of exemplary sentences in these types of cases is reiterated throughout the jurisprudence. As the Quebec Court of Appeal emphasized in R. v.

Brutus [4] : [ … ] les tribunaux tiennent depuis longtemps des propos fort sévères concernant la commission des infractions routières de ce genre et affirment la primauté des objectifs de dénonciation et de dissuasion pour exprimer leur volonté de marquer par des peines exemplaires la réprobation de la société à l'égard de ces crimes, particulièrement dans les cas où des conséquences graves (comme en l'espèce) en résultent pour les victimes.

La réprobation de la société peut se traduire par des peines d'incarcération plus longues, qui ont un effet dissuasif à la fois sur le délinquant lui-même et sur tous ceux et celles qui seraient tentés de l'imiter. [ 28 ] The Supreme Court of Canada, in R. v. Proulx [5] , also recognized the priority to be given to the principle of deterrence in these matters. Lamer C.J. speaking for the Court noted: […] dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties. [ 29 ] In view of these principles, and without ignoring the aspect of rehabilitation of Mr. Rowe and his serious efforts to turn the page, the sentence suggested by the defence is simply too lenient.

Furthermore, a comparison of lighter sentences imposed in “similar matters” must not ignore that this case involves not only impaired and dangerous driving but also the more serious offence of fleeing a police officer and causing bodily harm. [ 30 ] The Court is bound to impose a sentence commensurate with the range established for similar matters. A review of the appendix provided by the Quebec Court of Appeal in Ferland , as well as a consideration of the specific examples provided by the Crown [6] , do not allow for a sentence of 4 years as she suggests.

Sentences in this upper range are reserved for matters involving dangerous driving causing death, cases involving multiple victims, or of an offender with a prior conviction for a similar crime. More recently, the Quebec Court of Appeal, in R. v. Silbande [7] , has again provided an appendix of the applicable range of sentences, for such offenses, 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. Pre-trial custody [ 31 ] Mr. Rowe was detained upon his arrest on October 23 2015.

According to the usual tariff and as agreed to by the parties, his pre-trial custody from his arrest until he received his 12-month sentence on December 1 2015, should be counted as time and a half (2 months credit).The issue raised by the defence is whether he may be credited, on a one-for-one basis for the detention he continued to serve since August 1 2016, which is the two-thirds mark of the 12 month sentence and represents the date at which he would normally have been eligible for parole.

The Crown opposes crediting any pre-trial custody to the period since December 1 2015, given that he is actually serving a sentence. [ 32 ] According to section 719(3) of the Criminal Code , in determining the sentence to be imposed, a court may take into consideration any time spent in custody as a result of the offence . In the present matter, the time spent in custody by Mr. Rowe from December 2015 was not as a result of the offences for which a sentence is now being imposed. However, it must be understood that according to

section 38 of the Act respecting the Québec correctional system [8] , the general rule allows for remission after an offender has served two-thirds of his sentence. Mr. Rowe remained incarcerated after the two-thirds date, because of the present charges pending. Thus, from August 1 2016, he was indeed “detained as a result of the offence”. There is no reason to believe that he would not have otherwise benefited from this early release, especially in view of the positive presentence report. For these reasons, a credit of 1 for 1 will be granted to Mr.

Rowe from August 1 2016 to today (3.5 months credit). [ 33 ] Taking into consideration the principles referred to and the particular circumstances of these offences and this offender, the Court imposes the following sentence: In file 500-01-128976-153: ▪ On count 1: 24 months; ▪ On count 2: 38 months; ▪ On count 3: 24 months; ▪ On count 4: 1 month; ▪ On count 5: 2 months; ▪ These sentences are all to be served concurrently, as per the principle in R. v.

Furtado [9] , where the Quebec Court of Appeal stated that where the offences of fleeing the police and of dangerous driving resulted from one and the same conduct of the offender, consecutive sentences are not warranted. This is specifically distinguished from a case, for example, where flight form the police and dangerous driving follow the commission of a distinct and separate offense.

In file 500-01-128975-155: ▪ On both counts of breaching a recognizance, the Court imposes 3 months on each count, to be served concurrently with each other, but consecutive to the sentence imposed in the other file, in order to properly reflect these additional offences of ignoring court-imposed conditions of release from custody, intended to protect the public. Had Mr.

Rowe not breached these conditions, these crimes would not have been committed. [ 34 ] The total sentence imposed is 41 months less 5.5 months for pre-trial custody, thus 35.5 months from today: ▪ These sentences will be followed by a 5 year driving prohibition; ▪ An order under

section 109 of the Criminal Code is imposed prohibiting Mr. Rowe from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for life; ▪ An order under

section 487.051(3) is imposed, directing that Mr. Rowe provide a sample of bodily substances required for the purpose of DNA analysis. _________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Johanne Duplessis Attorney of the DPCP M e Alexandre Goyette Attorney of the accused Date of hearing: October 28, 2016