) Mr. J. Ross ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. B. Gladstone - v. -, 2014 MBPC 48

R. v. Adam Quinn Langan 2014 MBPC 48 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. J. Ross ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. B. Gladstone - and - ) for the Accused ) ADAM QUINN LANGAN, ) ) Sentence delivered Accused. ) July 31, 2014 _____ MOAR, P.J. (Orally) I will indicate for the record, before we begin, that this is a case of R. v. Adam Quinn Langan. This case, as was previously indicated during the course of submissions, was designated as a case for broadcast. Counsel, on the previous occasion, consented to their image and their comments to be broadcast.

At that point I also indicated to the counsel, particularly Mr. Gladstone and Mr. Langan that I had decided that Mr. Langan's image could be broadcasted should he have chosen to make comments at that time. This is a pilot project that has been undertaken by the provincial court of Manitoba and as such is a project that is to be assessed and in terms of today's proceedings. I am still permitting the cameras to show the images of counsel along with any comments they may make. I will also indicate that I will permit the cameras to show the image of Mr.

Langan at the time he is asked to stand to receive sentence and the images will cease once the sentence is pronounced. So with that, the other note that I will make is that my comments are going to be somewhat lengthy. I do apologize as my head may be downwards as I refer to my notes as I progress, so just so counsel is aware. Back on July the 25th of 2014, Mr. Langan appeared before the court, having previously pled guilty that on August the 24th of 2013, he did operate a motor vehicle while his ability to do so was impaired by alcohol and/or drug and did cause the death of Ms. Doreen Chaikowsky.

On that date I heard the sentencing submissions of counsel who jointly put before the court a recommendation that a sentence of four and one-half years less the time that Mr. Langan has spent in pre-trial custody is a fit and proper disposition. The one issue that counsel were not joint on is whether the accused, Mr. Langan, is entitled to enhanced credit for, as counsel have indicated just moments ago, the 343 days of pre-trial custody he has served to date.

At the conclusion of those submissions, I took a brief moment to reflect upon the submissions and determined that I needed some additional time to again review the applicable law, having now had the benefit of hearing the factual foundation of the plea as well as the background of the accused, Mr. Langan. I do want to thank both counsel for their submissions and what I consider to be a fair review of the applicable law in this matter. Before I proceed to outline the law and some of the principles at play, I do want to take a moment to address the family of Ms. Chaikowsky.

There is no way that the court can know the impact that this incident has had on your families but the word devastated keeps coming to mind. I listened intently as the victim impact statement was being read by Ms. Debbie Leah and watched Mr. Wade Chaikowsky during that time. I could see and sense what I can only imagine as the intense anguish that was being felt by the both of you and probably the rest of your families as you told me about Ms. Doreen Chaikowsky and what she meant to your family. I heard Ms.

Leah talk about the sense of fear on that day, wondering why the police would need to speak to the family and then quickly followed by despair and the immense feeling of loss when told of the tragic occurrence. There is no real way to make sense of why it was that she was taken from your families that day. As we heard from the sentencing submissions of Crown counsel, this was a senseless and selfish act by Mr. Langan. What is unfortunate and a sad reality is that nothing that happens in this courtroom today will take away that pain that I know all of you are feeling.

The only good that may happen today is that hopefully there will be a sense of closure on this part of the process for your families. I hope it will allow each of you an opportunity to properly grieve your loss and begin to allow an opportunity for your family to heal and continue on with the children as your mother and mother-in-law would have wanted you to do so.

The facts of this case put before the court by Mr. Ross can be summarized as occurring on August the 24th of 2013. On that date I was told that the accused, Mr. Langan, had been consuming alcohol and cocaine prior to his decision to operate a motor vehicle. He, at the time, had a licence that permitted him to operate a motor vehicle so long as he had no alcohol in his blood. Sometime prior to 5:12 p.m., the accused, Mr. Langan, had gone to pick up a female friend of his, Ms. Deanna Owen, from her workplace.

She was an individual the accused had met while he was a resident at the Behavioural Health Foundation of whom he had a relationship with that led to his discharge from the foundation for breaching the rules. Ms. Owen told police that when she was picked up by the accused it was apparent to her that the accused had been drinking but she did not think that he was drunk. That being said, prior to the collision occurring, Ms. Owen did become concerned with the accused's manner of driving and asked him to slow down. Unfortunately, that did not occur.

At the intersection of McPhillips Street and William Avenue, the two adjacent northbound lanes on McPhillips Street remained stopped when the light turned green in order to permit a black Honda pickup truck to complete its turn to go eastbound on William Avenue. At this same point in time, Ms. Chaikowsky, who was westbound on William Avenue, entered the intersection and began to make her turn to go northbound on McPhillips Street. The accused did not pay heed to the traffic that was described as being essentially gridlocked, nor to the prior warning of Ms.

Owen and continued to go northbound on McPhillips Street in the curb lane at what can be only described as a high rate of speed. He entered the intersection of William Avenue and initially struck the front end of the black pickup truck that was trying to clear the intersection, before then striking the driver's side of Ms. Chaikowsky's vehicle full on. There was no evidence that the accused applied the brakes of his vehicle prior to the collision and the resulting force of the collision drove Ms. Chaikowsky's vehicle onto the sidewalk where it struck three other unoccupied vehicles before coming to a rest.

The evidence from the black box of the accused's vehicle showed that he was at 100 percent throttle five seconds prior to the collision occurring and at the point of impact was going 123 kilometres an hour in a posted 60 kilometre zone. Conversely, the black box information recovered from Ms. Chaikowsky's vehicle showed that her vehicle was moving at a speed of four miles per hour and had only been in motion for two seconds prior to the collision occurring.

As a result of further police investigation, it was determined that the accused's extrapolated blood alcohol level at the time of the collision was between 194 and 227 milligram percent and in later comments to the police, the accused admitted to being a user of cocaine and estimated that he would have used up to about six grams that day. A number of fire and paramedic service vehicles responded to the collision scene. Ms. Chaikowsky was found in an unconscious state and the jaws of life were used to remove her from the vehicle.

She was transported to the hospital and found to have suffered multiple crush related injuries including a broken left shin, a broken left thigh, multiple broken left ribs, a torn liver and a torn heart. Unfortunately, she never did regain consciousness from the accident and succumbed to those injuries. A total of six other people, including this accused, were also transported to the hospital for treatment as a result of this collision. None of these people were found to have any injuries other than what were termed to be soft tissues injuries and none required any further medical intervention.

Two of the seven vehicles involved in this collision were later written off by the Manitoba Public Insurance Corporation. In addition to the emergency crews arriving on scene, Winnipeg Police also arrived within about three minutes of the collision occurring.

They were met by what can be only described as an obnoxious accused who initially tried to blame the driver of the black Honda pickup for the accident by telling the officer, "Man, I was driving this way and that black truck pulled out in my lane and caused all of this." Officers described the accused as slurring his words, having poor balance and a strong odour of liquor. He was placed under arrest and continued his belligerent behaviour towards the police throughout their interaction.

While at the scene he called them various derogatory names and despite claiming that he had a sore arm from the collision, the officers advised that he was still able to give the police what is commonly referenced as the middle finger. Mr. Langan was taken to the hospital as a precaution and continued his disruptive behaviour to the point that he had to be removed from the general waiting area.

Police tried to isolate him while they waited for him to be seen medically, but unfortunately his behaviour continued to deteriorate to the point that he had to be taken down physically after he took a fighting stance with the officers. During the course of this altercation he suffered a black eye that was noted and photographed upon his admittance to the Provincial Remand Centre. At one point in time Mr.

Langan was afforded the opportunity to exercise his constitutional right to consult counsel and while that right was being exercised, police noted he essentially passed out while he was on the phone and could not be roused by the officers. I was advised that in April of this year he did bring an application for release to a recognized treatment facility but that request was ultimately declined by the presiding judge and counsel advised that very shortly thereafter Mr. Langan then entered a guilty plea to the charge that is now before the court. This is how the matter comes before the court at this point.

The accused comes before the court with a prior criminal record that was filed as Exhibit S6 in the cause. On January 30th of 2012 he was sentenced to a period of 25 months custody that was reduced by the nine months of pre-trial custody he had served to that date, leaving 16 months going forward. I am advised he was released from his sentence on December the 25th of 2013. The majority of the offences that he pled guilty to arose from a number of incidents that occurred on September the 1st of 2010.

For each of those matters the underlying fact is that the accused was noted to be high and under the influence of alcohol. Those incidents were particularly dangerous in that the accused was in possession of an ax and was using it to cause damage to each of the locations that he attended on that date. Although the accused was never charged with a drive impaired type of offence from that date, the facts put forth had him driving a vehicle and after rear-ending a car here in the city of Winnipeg, he fled that location without exchanging particulars as is mandated under the Highway Traffic Act.

Winnipeg Police responded very quickly in those matters and arrested this accused at his Dufferin Avenue home on that date. He, at

the time, was noted by the police to be highly intoxicated and later gave a statement to police in which he said that he was too drunk to remember what he had done that day. He remained in custody for about three months before gaining his release on bail and remained out on bail for about six weeks before police again located him in a passed out condition on his couch. Once again, he was belligerent upon his arrest and not only threatened harm to other people in the home at the time of his arrest but also to the arresting officers. About two months later, Mr.

Langan was again able to secure his release, this time to the Behavioural Health Foundation. He remained in that facility for about three months before breaching a condition of the foundation and he was subsequently rearrested and brought back into custody. During the course of his sentencing hearing on January the 30th, 2012, the accused told the presiding judge through counsel that alcohol and drugs were what caused him to be that way. Further, that he was embarrassed by his behaviour.

In reference to his time at the Behavioural Health Foundation, he stated that he had done well at the Behavioural Health Foundation and basically completed the program and also completed the Staying Sober program while he was in custody. Counsel advised the court that the accused was committed to live a sober life without alcohol or drugs and that he had got the help he needed and was very unlikely to come before the courts again. Much of that unfortunately proved to be untrue. The Highway Traffic Act record of Mr. Langan was filed as Exhibit S5.

As we note, he was a suspended driver from the period of December 17th, 2012 until March 6th of 2013, before being issued a licence that permitted him the right to operate a motor vehicle, as I indicated, as long as he had a blood alcohol level of zero. I have had the opportunity to consider the pre-sentence report that was prepared on May 7th of 2014 and in my view it paints a picture of a young aboriginal male who managed to stay out of the criminal justice system during his youth and early adult life but who now presents with some extremely serious issues.

Adam Langan was born to David Buboire and Tannis Langan as the only biological child of that union. The report tells us that his mother is from The Pas, Manitoba, where she was raised in what was described to be a practicing Christian home by her parents who both worked and did not use alcohol or drugs. She left the home at a relatively young age and ventured to Winnipeg where she met Mr. Buboire and they appeared to have had a very short relationship that led to the birth of the accused, Mr. Adam Langan. It is not clear why their relationship ended but it was Tannis Langan who raised her son here in Winnipeg.

Mr. Buboire played no real role in the accused's upbringing and there was only an 18 month period of time where it appeared that there was regular contact between the two of them. That contact was initiated by Mr. Buboire who reached out at a time that he had been diagnosed with a terminal illness. The two of them, that being Mr. Buboire and his son, continued their short relationship that ended with the accused attending to his father's funeral.

Although the pre-sentence report is a little scarce on details, it appears that the family home in Winnipeg was characterized with a lot of drinking as well as occasional domestic violence incidents between his mother, that is Mr. Langan's mother, and her domestic partners. During those periods of physical conflict in the home, Mr. Langan appears to have taken it upon himself to protect his half sister, Eden, by moving her to safe areas of the home and ensuring that she did not become placed in an area of danger. At the age of 16, Mr.

Langan quit school and took a job as a roofer with an individual he references in the report as his uncle. At the age of 17 he decided to move out of the family home as his relationship with his mother had deteriorated. He lived a very short time with a girlfriend before moving in with Eden and a cousin. Mr. Langan described his two relationships he has been involved in during his young life. His first relationship resulted in the birth of two children who at this time he believes are in the care of Child and Family Services.

It appears that the mother of those children has and continues to suffer from varying mental health related issues. His most recent relationship has been an on and off again that began back in 2010. The relationship resulted in the birth of a son on December the 18th of 2013 and I'm told this accused has only seen the child on one prior occasion, that being at a previous court appearance. Upon his last release from custody in December of 2012, Mr. Langan resumed living with Ms. Mentuck in a relationship that has been described as having a great deal of discord within.

Eden suggests that it is an up and down relationship and that both of these individuals fight a lot because they have what she describes as tempers. Mr. Langan's employment as a roofer ended after about two years of full time work when he fell from a roof and broke his back. He was initially confined to the hospital for about two weeks and upon his release he had to wear a back brace for a period of time. He decided at that time to return back to school and enrolled at Sisler High where he did end up obtaining a partial grade 11 standing before leaving to resume work as a roofer.

He has continued that line of work throughout the summer months and has relied on the employment insurance benefits for the winter months that he is off. Given the prevalence of alcohol in the family home, Adam Langan began drinking at the age of 12 years. He also began to experiment with marijuana during this time and his use of both alcohol and marijuana continued to escalate throughout his youth. He soon graduated to using prescription drugs that had not been prescribed to him, as well as cocaine, a very dangerous and highly addictive drug.

His use of cocaine continued to escalate and at one point in time he turned to trafficking in order to support what became to be a six gram a day habit. Mr. Langan's use of alcohol has been prevalent in each of the convictions that occurred in 2012 and certainly is evident in the offence now before the court. His ongoing consumption of alcohol has led to the loss of job due to intoxication, arguments with family and partners, as well as minor injuries and blackouts as is depicted in the pre-sentence report. Various family members interviewed for this report expressed concern about Mr.

Langan's ongoing use of alcohol and cocaine. They described that his behaviour has become uncontrollable at times and he has begun to suffer from blackouts. These concerns have been acknowledged by Mr. Langan and he indicated that he will bottle up his emotions for a long time and then drink to let them all out, obviously an inappropriate way for him to cope with those issues. As indicated prior, Mr. Langan did attend to the Behavioural Health Foundation but unfortunately he ended up being discharged for

breaching a house rule. Since he has been in custody, I am told he has not availed himself to the Winding River program while he was at the Headingley Correctional facility and that was commented on by counsel in terms of the reasons. It appears from collateral sources that Mr. Langan's social circle involves individuals who are involved with the criminal justice system and who also suffer with alcohol and drug related issues. When in the community it appears that Mr. Langan will always seem to gravitate back to those old friends and to the destructive behaviour that has led him to this point here today. Mr.

Langan was raised in a Christian home and was not exposed to, or taught about, his aboriginal background during his childhood. His exposure since he has become an adult has essentially occurred during the times he has been incarcerated. Within the institutions he has participated in sweat lodge ceremonies, as well as smudging, and has also taken the opportunity to seek the counsel of elders at both Headingley Correctional and Milner Ridge facilities. The paternal side of Mr. Langan's family has some history of residential schooling which does not exist on his mother's side of the family.

Although he identifies as being from the Fort Alexander First Nation, Mr. Langan has never been to that community and has expressed no desire to connect with his home community. He has never met any of his paternal side of the family. According to the probation officer who prepared this report the accused has accepted responsibility for the offence and has expressed remorse for his involvement. Although he has a relatively short history of involvement with the justice system, Mr.

Langan has been assessed as being a high risk to reoffend with the concerns being those of alcohol and drug abuse, companions, lack of leisure and recreation, along with his prior criminal history. It is clear from the pre-sentence report, that his mother struggled with alcohol abuse and the challenges of being a single parent, while his father did not have any involvement until shortly before his passing. The probation officer notes that Mr. Langan's upbringing appears to have had a general lack of guidance and support and he essentially was left to find his own way.

The impact of colonization is noted that neither the accused nor his mother maintained any significant connection to their aboriginal culture. Mr. Langan has struggled with addiction issues and controlling his anger in the past and has been described in the report as having a history of very dangerous and lethal behaviour while under the influence of alcohol and drugs. His involvement with his current common-law partner has been difficult and during times of conflict he has returned back to the use of substances to deal with that situation.

The determination of a fit sentence is not an art, it is not a science, nor is it a mathematical exercise. It is an individualized process where a court must look at the individual and assess his conduct in light of the particular circumstances of the incident that are put before the court. The determination of a fit sentence is achieved through a consideration of the fundamental principles of sentencing that are set out in

Section 718 of the Criminal Code and thereafter in a number of subsections that follow. What is clear from a reading of the sentencing principles contained in

part XXIII of the Criminal Code is that vengeance is not an enunciated principle of sentencing.

Section 718 of the Criminal Code sets out the following: "The fundamental purpose of sentencing is 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; • (

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 and to the community." Additional principles of importance in this matter are that: The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender, pursuant to 718.1. Pursuant to 718.2(

a) the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The sentence to be imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. And lastly, pursuant to 718.2(

e) that all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. It is unfortunate that we again find ourselves in court on a matter where a life has been taken. I am not sure what it is going to take for people to understand that alcohol and vehicles do not and cannot be used in conjunction with one another. When they are associated it can often have such devastating consequences as is evident in this case.

Government has long recognized the dangers of impaired driving and has tried to address that issue through amendments in the Criminal Code sanctions.

In 2007, the Criminal Code of Canada was amended to preclude a conditional sentence from being imposed where an individual isconvicted of a serious personal injury offence which would include the offence of drive impaired cause death. The very next yearParliament introduced another amendment to the impaired driving simplicitor sections of the Criminal Code by increasing the minimummonetary sentences along with the minimum incarceratory penalties for repeat offenders. Public interest groups have long waged an informational campaign aimed at trying to show the devastating effects that drinking anddriving can have.

One only has to consider the Manitoba Public Insurance commercials, that always seem to play during the holidayseasons, where viewers are often left speechless at the conclusion of the commercial. Ms. Doreen Chaikowsky shared that very same concern about impaired drivers throughout her life. We heard that she was alwaysconcerned for the safety of her sons, their friends and family to the degree that she preferred to be the driver during the late night hours inthe hope that her driving experience would allow her to better deal with potentially impaired drivers.

That same issue which caused hergreat concern ultimately took her life at a time when no one would have expected an impaired driver to be out on the roadway, 5:12 inthe afternoon. The senselessness of this incident can no better be highlighted by examining photograph 6 of Exhibit Number S4 whichdepicts three damaged automobiles, the debris of the damaged automobiles strewn about the roadway, police officers on sceneexamining the automobile of Ms. Chaikowsky and a huge sign in the background of the roadway that reads "Don't Drink and Drive".

MADD, Mothers Against Drunk Driving, has been a longstanding group who have devoted immense resources to try and educate thepublic on the inherent dangers of drinking and driving. Despite their efforts, we still have individuals such as Mr. Langan who choose todrink alcohol and I might add use cocaine to the degree of impairment and then choose to drive with complete disregard for others on theroadway. In the 2010 Manitoba Court of Appeal case of R. v. Ruizfuentes [2010] MBCA 90, the Manitoba Court of Appeal examined thehistory of sentencing decisions as it relates to drinking and driving cause death.

In that case the court agreed that the principles ofdenunciation and deterrence are paramount in these types of cases. With that though, I do recognize that given the limited criminalrecord and age of Mr. Langan, the court must also give due consideration to the important principle of rehabilitation. The court in Ruizfuentes conducted an extensive review of the sentencing decisions that occurred prior to 2010.

That assessmentnoted that prior to the legislative changes that were made, a number of cases concluded with the imposition of conditional sentenceswhich as we know are no longer an available disposition for these offences. The court in that case concluded that generally, the fit rangefor those offenders convicted of drive impaired cause death with no prior related record or convictions for serious personal injury cases isa sentence of two to five years. For those with a prior related criminal record, that is prior related drinking and driving convictions, therange ought to be four to eight years.

Where an offender falls within that established range is dependant on many factors, including anassessment of both the aggravating and mitigating circumstances. In aggravation I note that the matter occurred at 5:12 p.m., a time of day that is commonly referred to as rush hour. It is a time whenone can reasonably expect there would be extensive traffic as was noted in this case to be of a gridlock nature. The accused had a licence that limited his driving to instances where he had a zero blood alcohol level limit and at the time of thecollision, we know that he did not have that.

The extrapolated blood alcohol reading was 194 to 227 milligram percent which is overdouble the legal limit at the time of his collision and is a statutory aggravating factor that the court must consider. The accused also onthis day voluntarily ingested cocaine prior to assuming control of that automobile. At the point of impact the vehicle being driven by the accused was travelling 123 kilometres an hour which is 63 kilometres over theposted speed limit. The black box also recorded his vehicle as being at full throttle just prior to the collision occurring.

Upon exiting hiscar he showed no concern for those he had harmed and in fact tried to blame others for the collision that had occurred. He refused to cooperate with police and showed a complete lack of respect to the officers who were trying to ensure that he himselfreceived medical attention. Eventually his disrupted behaviour at the hospital led to a physical confrontation that became necessary inorder for the police to restore public peace. In mitigation, I note that he did in fact enter a guilty plea and thereby gave up his right to try this matter.

The accused has alsoaccepted responsibility and, as I have indicated, is remorseful, which I will address in a moment. As I identified at the outset of this matter, there is a joint recommendation before the court and prior to addressing that, I want tobriefly comment on the aspect of joint recommendations. The concept of joint recommendations has been consistently recognized by alllevels of court as an important and an essential component of the criminal justice system.

The importance though can never underminethe court's obligation to impose a fit sentence and as such, a court is never bound by a joint recommendation. The Manitoba Court of Appeal in the case of R. v. Perron, 2007 MBCA 73 , [2007] M.J. No. 237 (C.A.), outlined in non-binding nature of a joint recommendation in the following passage of Mr. Justice Huband adopted from the case of R. v. Pashe, (MB CA), [1995] M.J. No. 76 at para 12: "The sentencing judge is not bound to accept a recommendation, but it should not be rejected unless there is good cause for doing so." Citing the case of Divito [1990] M.J.

No. 12: "... this court stated that while a sentencing judge has an overriding discretion to reject a joint recommendation 'there must be good

reason to do so, particularly, as in this case, where the joint recommendation is made by experienced counsel.'" Although this passage is clear that joint recommendations are not binding on a court, it has also emphasized the importance to begiven to joint recommendations and laid caution for the court to perform a thorough analysis of the circumstances surrounding therecommendation as well as the applicable law before giving consideration to stepping outside of that recommendation. The weight to be given to any joint recommendation is always dependant on the circumstances of the case.

A court may inquirewhether the joint recommendation comes on the heels of a true plea bargain, where the Crown is facing various exigencies or difficultieswith the case? Has the accused given up potential defences or is he assisting in some other way to an exchange for a jointrecommendation on sentence? Conversely, a court may look and conclude that the recommendation is simply a situation where there is an agreement amongstcounsel as to what they feel the fit sentence should be for the matter before the court? In R. v. Broekaert, 2003 MBCA 10 , [2003], 170 Man.

R. (2d) 229 at para 29, the Manitoba Court of Appeal said: "Nonetheless, a joint submission as to sentence is an important consideration in sentencing. The sentencing judge must give it dueconsideration and must be slow to reject it without good cause ... The amount of weight to be accorded a joint submission will depend onall of the circumstances. One of the circumstances can be whether the joint submission arises out of a plea bargain situation, or as aresult of a joint submission on a guilty plea to the offence charged.

By plea bargain I mean a situation where an accused person pleadsguilty to the offence charged, or a lesser offence and, by doing so, gives up a viable defence, or provides another 'quid pro quo' inexchange for a joint submission on sentence." That line of thought was confirmed in the recent case of R. v. Wolonciej [2011] M.J. No. 373 where the Manitoba Court of Appealcited the comments of Steel, J. A. from Sinclair (at para 13-14): "There is a continuum in the spectrum of plea bargaining and joint submissions as to sentence.

In some cases, the Crown's case has someflaw or weakness and the accused agrees to give up his right to a trial and to pleas guilt in exchange for some consideration. Thisconsideration may take the form of a reduction in the original charge, withdrawal of other charges or an agreement to jointly recommenda more lenient sentence than would be likely after a guilty verdict at trial. Evidence always varies in strength and there is alwaysuncertainty in the trial process. In other cases, plea negotiations have become accepted as a means to expedite the administration ofcriminal justice...

Recognizing that cases fall at various places in the continuum, the essence of the plea bargain or joint submission should be placed onthe record in open court. The judge must have a solid factual basis on which to make an independent, reasoned decision. If a trial judgeis not given or fails to inquire into the circumstances underlying a joint sentencing submission, then he or she will be hard pressed todetermine whether there is good cause to reject that joint submission." In the case at bar there is a joint recommendation as to sentence.

It is a recommendation that comes from a very experienced Crowncounsel and a defence counsel who has from the nature of his comments, thoroughly reviewed this area of the law. The facts of this case are concerning and certainly inviting in the sense of pushing the bounds of sentencing as it relates to this type ofoffence. I gathered from some of the comments of Crown counsel that that was certainly in his consideration and cannot be more notedthan in his comments as it relates to the credit that he was being afforded to the guilty plea that was offered by Mr. Langan.

I agree with counsel that the guilty plea of Mr. Langan is a very important consideration for this court. The fact that the accused gaveup his right to try this matter to the fullest extent of the law by the use of a preliminary hearing and then a trial, should a committal havebeen ordered, is noted. Leaving the issue of pushing the bounds of sentencing aside, what is before the court is a joint recommendationthat is at the top of the sentencing range that was discussed in the Ruizfuentes decision.

The recommendation recognizes the terrible setof facts that are before the court and in my view gives the appropriate weight to what I see as the most prevalent principles in this case,those being deterrence and denunciation. It also, in my view, gives the appropriate consideration to the aboriginal background of Mr.Langan and therefore

Section 718.2(

e) of the Criminal Code which is commonly referenced to as the “Gladue” considerations. In thatrespect, I note the general comments of Madam Justice Hamilton [2013] MBCA 108 that at para 64 that: "Gladue applies to all aboriginal offenders, whether or not the offences are serious and violent." At paragraph 64:

"The unique circumstances of aboriginal offenders are both general and specific in nature." At paragraph 64 the court stated:, "In Gladue, the court stated generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing." Finally at paragraph 73, quoting from Cory, J. and Iacobucci, J. in Gladue (at para 71): "... [Section] 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal." Counsel for Mr. Langan suggests to the court that the accused ought to be credited at 1.5 to one for his pre-trial custody to date, that I have noted as 343 days. Crown counsel opposes that application and cites his numerous institutional violations as the primary basis for that consideration. Section 719(3) of the Criminal Code permits the court to consider the time the accused has spent in custody and credit the offender for that time.

Prior to the Truth in Sentencing Act of 2009, the practice in all Manitoba courts was to credit the accused on a two for one basis for any pre-trial custody that had been served to the date of sentencing. In 2009 the law was subsequently changed and 719(3.1) was added which reads “if the circumstances justify it, the maximum is one and one-half days for each day spent in custody”, and then goes on to list some exceptions to that rule that are not present in this particular case. That provision was considered by the Supreme Court of Canada in the case of R. v.

Summers , [2014] SCC 26, where the court, quoting from a paper on sentencing of C.C. Ruby, G.J. Chan and N.R.

Hasan, where it stated that, "... the vast majority of those serving reformatory sentences are released on 'remission' ... at approximately the two-thirds point in their sentence and only two to three percent of federal prisoners are not released either by way of parole or 'statutory release." The court, in its analysis determined that the loss of access to parole and early release as a result of being a remand prisoner are circumstances that are capable of justifying enhanced credit under 719(3.1) assuming the offender does not fall under any of the delineated exceptions.

The court, quoting from Beveridge J.A. from the case of R. v.

Carvery 2012 NSCA 107 that: "if it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity." Judge Beveridge goes on to state: "... it would not be onerous for most offenders to establish that they would have earned remission or been granted parole, and hence, it is not likely to be a rare occurrence for an offender to be worthy of a credit of more than 1:1." Eventually what the court in Summers concluded is that the practice of giving enhanced credit was not essentially altered by way of the Truth in Sentencing Act but rather the credit was essentially capped or limited to 1.5 to one as opposed to the then prevailing practice of two to one.

The onus is still on the accused to satisfy a court that he or she is entitled to enhanced credit for pre-trial custody served and the loss of early release will generally be a sufficient basis. In this case, Crown counsel pointed to the number of incidents of institutional misconduct that occurred during Mr. Langan's previous period of incarceration, along with those that have occurred since he has been waiting sentencing on this matter. What is evident from the record is the accused was still granted early release despite those incidents being documented.

The fact he has now committed four additional incidents that were detailed in the report does not satisfy me that he would now fall into the two or three percent of inmates who would eventually serve out their sentence to warrant expiry. I am satisfied that based on the record, the accused has presented a

sufficient basis in law for this court to conclude that he would be entitled to the early release provisions and there being nothing further presented by Crown counsel. I am prepared to credit him as serving 514 days or the equivalent of 17 months of pre-trial incarceration. Mr. Langan, would you please stand. Mr. Langan, you have committed what I think can only be described as the ultimate offence and that is the taking of a life. It is not any life that you took, it was the life of Ms. Doreen Chaikowsky. Ms. Chaikowsky was a vibrant and active lady who was dearly involved with her family.

She was the oldest of 10 siblings and was deeply involved in the lives of her two sons. She took every precaution to ensure their safety and held out that responsibility for the entirety of her life. I suspect your comments on wishing to switch places with her probably do not offer any comfort to the family of Ms. Chaikowsky. I have read and heard from your counsel how sorry you are. I accept those comments and accept the notion that you are in fact truly remorseful.

I note though that you were presented with an opportunity to make comments yourself and although you are not required to do so, it was potentially a lost opportunity for you to show your desire to seek rehabilitation by personally addressing those who you have harmed. Such an opportunity probably not present itself again. Your level of moral blameworthiness is extremely high in this case. There have been many warning bells sounding for you that your use of alcohol and cocaine had gotten out of control.

The facts of your previous offences should have served as a dark reminder for you of what happens when you choose to use cocaine and alcohol. You have lost a job because of your drinking and your own family has commented on their concerns with your current pattern of behaviours. On this particular date, you chose to drink and you chose to use cocaine and then you made a decision to arm yourself by taking control of a motor vehicle. Amongst your prior convictions was an incident where you had been drinking and rear ended a car before fleeing the scene.

You should have known the risk of drinking and driving from that incident alone. Yet again, you chose to get into the car and you drove to a location here in the city of Winnipeg. Your blood alcohol level was over two times the legal limit. Your manner of driving involved going double the speed limit and not paying any attention to the flow of traffic. You were warned by your passenger about your driving and you chose to ignore that warning. In fact, you have chosen to ignore the many instances that presented themselves to you that you in fact need help.

You caused the series of collisions to occur and then you tried to blame others. What happened in this case was not an accident. It was an eventuality that a sober individual would have realized. You showed a complete disregard for the users of the roadway and it is for that that you must be sentenced. After having given the submissions of counsel consideration, I find that the joint recommendation was put before the court has considered all of the principles of sentencing that are pertinent in this particular incident. As such I am prepared to accept, and do in fact impose upon you, Mr.

Langan, a sentence of 54 months of incarceration. You have served at total of 343 days in pre-trial custody and as I previously indicated, you will be credited with serving 17 months of pre-trial custody. So the sentence will be reflected as 37 months going forward with 17 months of pre-trial custody be noted. As such, you will be committed to the federal penitentiary system. Given the facts of the case, you will be prohibited from operating a motor vehicle for a period of 10 years upon your release from custody.

The costs and victim fine surcharge in this matter will be waived given the period of incarceration that have been imposed. This is a secondary DNA offence and given the gravity of the offence as well as the previous criminal record, I have concluded that you, your privacy interest is now outweighed by the public interest and you will provide a sample of your DNA upon demand of the authorities. Counsel, I believe those are the issues that need to be addressed. MR. ROSS: Yes, Your Honour. THE COURT: I thank counsel again for their submissions. ____