r v. GLEN ROBERT HARVEY, 2020 QCCQ 3879

R. c. Harvey 2020 QCCQ 3879 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF SAINT-FRANÇOIS TOWN OF SHERBROOKE “Criminal and Penal Division” N°: 450-01-115122-199, 450-01-116319-208, 450-01-116320-206 DATE: September 25, 2020 BY THE HONOURABLE DANIELLE CÔTÉ, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v.

GLEN ROBERT HARVEY Accused JUDGMENT [ 1 ] This matter calls for the determination of a fit and reasonable sentence for a serial drunk driver who pled guilty to having a blood alcohol concentration exceeding .08 within two hours after ceasing to operate a motor vehicle (two counts), obstructing peace officers in the execution of their duties and failing to comply with a condition of an undertaking, to wit: to abstain from the consumption of alcohol. [ 2 ] Considering the need to emphasize denunciation as well as deterrence, the many aggravating circumstances and the few mitigating circumstances, the Crown suggests a global sentence of 5 years of incarceration.

The Crown concedes that the Court should deduct the pretrial detention at a rate of 1.5 days for 1 day. [ 3 ] The Defense argues that the accused now admits, for the first time, that he has a problem with alcohol, that he is on the road to rehabilitation and that the Court should further his desire to change his way of life by accompanying him with a probation order with conditions that would ensure his full rehabilitation and, thus, the security of the public. She suggests that the only way to do so would be the imposition of a term of incarceration of 2 years less a day.

GRAVITY OF THE OFFENCE [ 4 ] The offence of having a blood alcohol concentration exceeding .08 within two hours after ceasing to operate a motor vehicle is punishable by a maximum term of imprisonment of 10 years [1] , obstructing peace officers in the execution of their duties is subject to a maximum term of two years [2] and failing to comply with a condition of an undertaking entails a maximum term of two years less a day. [3] CONTEXT [ 5 ] On September 8 th , 2019, police officers patrolling in Magog noticed the accused bizarre driving and intercepted him.

The accused was so evidently drunk that the officers arrested him immediately for impaired driving. [ 6 ] At first, he gave a false identity but at the police station he provided his real name and date of birth and explained that he did so because his driver’s licence is suspended. [ 7 ] Having blown .170, he is released on his undertaking to abstain from the consumption of alcohol or other intoxicating substances.

His car was impounded for 30 days and he was prohibited from driving for 90 days. [ 8 ] On December 1 st , 2019, police officers in Montreal received information from a McDonald’s drive-through clerk, suspecting a client of impaired driving after he drove on the sidewalk and hit the counter. [ 9 ] The accused was arrested in the parking lot of the restaurant where he failed the approved screening device test. The police

officers brought him to the police station in order to administer a breathalyzer test. The results was .196. The accused has been detained since then. THE ACCUSED PERSONAL CIRCUMSTANCES [ 10 ] The accused is 61 years old and single. At the time of the offence, he was employed as a security guard and his employer guarantees that his job will be available to him when he is able to return [4] . [ 11 ] As previously mentioned, the accused is a serial drunk driver: he has 9 previous convictions [5] for drunk driving and 3 for driving while prohibited.

He started on this path in 1979 and his last conviction is in 2009 for offences committed in 2006. [ 12 ] He has other convictions for failure to appear, resisting a peace officer and breach of an undertaking.

He was sentenced to fines, community service, an intermittent sentence and short jail terms, the last one for a period of 4 months. [ 13 ] His driver’s licence is suspended since March 2002. [ 14 ] He has siblings who are there to support him, even if they did not know at the time of his last incarceration that he had a drinking problem and many convictions in relation to drinking and driving. [ 15 ] In a letter filed with the Court, his sister wrote that his siblings, now aware of the situation, “ can offer him support, and arrange for follow up treatment once he is released” [6] .

PURPOSE AND PRINCIPLES OF SENTENCING [ 16 ] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society [7] . [ 17 ] This purpose can be attained by imposing just sanctions that have one or more of the following objectives: “ dénonciation, dissuasion générale et spécifique, neutralisation, réinsertion, réparation et prise de responsabilité” [8] . [ 18 ] In furthering these objectives, the Court must consider many principles, rules and factors in the proper exercise of its discretion in order to tailor a just sentence.

That said, the fundamental principle remains that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [9] . Or, as one could say, the sentence imposed must be “ just and appropriate, and nothing more” [10] . [ 19 ] The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender [11] .

When the offence is related to impaired driving the fact that the accused’s blood alcohol concentration exceeded .120 mg of alcohol in 100 ml. of blood and that he was not permitted to operate the conveyance are aggravating circumstances [12] . [ 20 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the principle of parity) [13] and, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [14] . [ 21 ] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [15] .

JURISPRUDENCE [ 22 ] Appellate courts across Canada have repeatedly emphasized that in matters of impaired driving, the foremost objectives of sentencing should be deterrence and denunciation [16] . [ 23 ] Higher sentences have been imposed in impaired driving cases where the accused, as in this case, is a repeat offender.

The range of sentences is thus between 1 and 3 years [17] and up to 5 years when there are multiple aggravating circumstances [18] . [ 24 ] More lenient sentences are imposed when an accused is rehabilitated from his drinking problem at the time of sentencing [19] . [ 25 ] The Court must nevertheless be cautious in reviewing the sentencing jurisprudence, because in September 2018, Parliament increased sentences for offences of impaired driving by doubling the maximum term of incarceration from 5 to 10 years. [ 26 ] This is an unequivocal message for the Courts. “ To respect Parliament’s decision [to increase maximum sentences], courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences” [20] .

DISCUSSION [ 27 ] From the outset, it must be stressed that the Court is not convinced that the accused is on the road to rehabilitation [21] . On the contrary, it is the Court’s opinion that his testimony affirming that he now admits his drinking problem was lip service to this fact. [ 28 ] For starters, at the bail hearing, he said that he was ready to submit to a closed therapy in order to fix his problem. Bail was denied, and although he has been in jail since December 1 st , he only went to one Alcoholics Anonymous meeting.

He blames this on the pandemic but this does not address the three months he had to start dealing with his problem. [ 29 ] At the time of sentencing, he no longer believes that he is in need of help, having been sober for 8 months without missing alcohol. On this point the Court notes that being sober in jail and not missing alcohol is quite different from maintaining sobriety in society amid people who can drink.

[ 30 ] In fact, he says that he is ready to do “whatever” the Court would ask him to do because “anything is better” than being in jail. These are not the words of someone who admits to having a drinking problem. [ 31 ] There is more: he says that in order to ensure his continuous sobriety, he would have to change his way of life and stop social drinking, but in cross-examination, he admits that he is still interested in acquiring a bar/restaurant business. [ 32 ] He describes himself as a social drinker, and adds that social drinking is not the problem but driving with alcohol is the problem.

He goes so far as to say that in fact he “was never all that drunk” . This is a surprising statement from the driver who, according to the McDonald’s clerk, drove on the sidewalk and hit the counter… [ 33 ] In

summary, rehabilitation is far from proven. Therefore, the Court must emphasize the paramount factors of denunciation and deterrence and thus ensure the protection of society. [ 34 ] The only mitigating circumstance is the guilty plea. [ 35 ] The aggravating circumstances are numerous: his prior convictions, three of them for driving while prohibited showing a blatant disregard for court orders, on both occasions his blood alcohol concentration exceeded .120 mg of alcohol [22] and he was not permitted to drive a motor vehicle under Quebec law.

In fact, he has been driving without permission since 2002. [ 36 ] On the last occurrence, in December, he failed to comply with the condition of an undertaking signed before a police officer 3 months earlier, prohibiting him from consuming alcohol. As well, he was driving his vehicle despite an administrative prohibition to do so. [ 37 ] As for the step-up principle referred to by the defense, suffice it to say that “ the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation.

It should be only in cases where rehabilitation is a significant sentencing factor” [23] . [ 38 ] As previously noted, the Court is far from convinced that this accused is on the road to rehabilitation. [ 39 ] Considering the need to emphasize denunciation, specific and general deterrence as well as the need to adjust sentencing to respect Parliament’s increase of the objective gravity of the offence of impaired driving, a global sentence of 5 years is appropriate. [ 40 ] As previously mentioned, both parties agree that the accused must be credited for 10 months of pretrial custody, calculated at a ratio of 1.5, thus reducing the sentence to 45 months as of today.

FOR THESE REASONS, THE COURT: In the file 450-01-115122-199: SENTENCES the accused to 9 months in jail on count 2; SENTENCES the accused to 3 months in jail on count 3, to be served concurrently; ORDERS that the accused be prohibited from operating a motor vehicle for a period of 10 years in addition to the period of imprisonment; ORDERS a minimum absolute prohibition of 5 years; In the file 450-01-116319-208: SENTENCES the accused to 36 months in jail on count 1, to be served consecutively; ORDERS that the accused be prohibited from operating a motor vehicle for a period of 10 years in addition to the period of imprisonment; ORDERS a minimum absolute prohibition of 5 years; In file 450-01-116320-206: SENTENCES the accused to 3 months in jail to be served concurrently; DANIELLE CÔTÉ, J.C.Q.

M e Louis Fouquet Prosecutor M e Ana Maria Mocanu For the Accused

[23] R. v. Robitaille, (BC CA), R. v. Drake, 2019 BCCA 170.