r v. TERRY BELL, 2015 QCCQ 8883

R. c. Bell 2015 QCCQ 8883 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Criminal and Penal Division No: 455-01-013595-149 DATE: September 10, 2015 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

TERRY BELL Accused ______________________________________________________________________ JUDGMENT ON SENTENCE DETERMINATION ______________________________________________________________________ [ 1 ] Terry Bell pleaded guilty to the charge of having operated a motor vehicle while disqualified from doing so on May 16, 2014 in Cowansville. [ 2 ] That disqualification was the result of a September 5, 2013 conviction.

On that date, he had been found guilty of impaired driving in relation to an event that occurred in September 2010, and had been prohibited from driving for one year. [ 3 ] The evidence adduced with regard to submissions on sentencing is quite scant: the accused was reportedly intercepted by the police during an operation to check on the wearing of seatbelts and the use of cell phones while driving. Although I do not know the exact circumstances, I understand that the verification of the accused’s right to drive revealed that he was prohibited from doing so.

I also understand that no statement of offence was served on him, either for not wearing a seatbelt or for using a cell phone. [ 4 ] Furthermore, the accused’s attorney explained that her client, Terry Bell, is the principal of an elementary school in Cowansville. He is reportedly involved in certain committees, about which no further details were provided. [ 5 ] I was informed that, after his 2013 conviction, the accused moved from his former residence into one located closer to his workplace (he reportedly moved from Knowlton to Cowansville). [ 6 ] The accused was intercepted in broad daylight.

He was coming back from work and had stopped his vehicle in the parking lot of the building where he lived. There was no alcohol in his system. According to his attorney, Terry Bell took his vehicle that day because he had [TRANSLATION] “a lot of things to do”.

When questioned, and I would add invited with some insistence, to indicate what those things were, the attorney replied [TRANSLATION] “I cannot tell you everything he had to do”. [ 7 ] The accused did not speak. [ 8 ] I therefore note that the accused’s vehicle did not have an alcohol ignition interlock device, at least not at the time he was intercepted. [ 9 ] The accused does not have a criminal record, except for the 2013 impaired driving conviction.

I know nothing else about the accused or the circumstances surrounding his use of his vehicle on May 16, 2014. [ 10 ] On that factual basis, the Crown is seeking the sentence generally imposed in the district for that type of offence, i.e. 30 days of imprisonment.

The defence instead proposes a fine of $1500 to $2000. [ 11 ] In support of her contention, Terry Bell’s attorney submitted the judgments of the Honourable Justices Charbonneau, in Michel Lambert , [1] and Bourque, in Girouard , [2] two decisions that are filed by the defence in all cases that deal with driving while prohibited from doing so or involve contestation of the Crown’s application. [ 12 ] A few other decisions applying those judgments were submitted, as well as copies of minutes of hearings concerning similar cases.

Since I am unaware of the facts in those cases or the circumstances in which the decisions were rendered, they are of little use to me. I also wish to add that between the moment the accused entered his guilty plea and now, I have also read the judgment from the Honourable justice Ruel in Lemieux v. R. [3] With the greatest of respect, I do not believe that leniency in cases related to drinking and

driving offenses is the direction the Supreme Court of Canada is pointing. [13] In fact, I believe it is a fundamental error to separate the origin, that is, the initial conviction for impaired driving, when dealingwith the system of sentencing for driving while prohibited from doing so. [14] If the prohibition from driving is the result of a conviction for impaired driving or driving with a blood alcohol level over thelegal limit, the two offences are closely and even inextricably linked.

The notion that drunk driving is a serious scourge is particularlyrelevant in matters of sentencing for driving while prohibited from doing so. [15] Let me explain. [16] Although some believe that the gravity of the drinking and driving problem is exaggerated, the Supreme Court of Canada hasstated the opposite many times. It would certainly be tedious to make an exhaustive list of all the times it has addressed the matter. [17] I would like to cite some of those comments. [18] In 1988, Thomsen v. R.[4] said the following: 21.

The importance of the legislative purpose to be served by s. 234.1(1) of the Code and the necessary relationship to it ofroadside breath testing under circumstances which do not permit an opportunity for contact with counsel are disclosed by the s. 1material that was placed before the Court by the respondent in the appeal in R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621,and relied on in this appeal, which was argued at the same time. It was the same material that was before the Ontario Court of Appeal inSeo, although apparently grouped together somewhat differently in the first seven volumes.

The material, consisting of statistics, reports,studies, articles, Canadian legislative history and foreign legislation with respect to the problem of impaired driving, is referred to inconsiderable detail by Finlayson J.A. in Seo, and I would respectfully adopt the following statement by him at pp. 398-99 of theconclusions that may be drawn from the material:

(1) The problem of the drinking driver has been recognized by the Ministers of Justice of Canada and by experts in trafficaccident research for many years.

(2) The problem of the drinking driver has not been controlled. It is very serious and must be addressed by urgent measures.

(3) There is a direct relationship between drinking drivers and automobile accidents.

(4) The severity of accidents increases almost in direct ratio to the quantity of alcohol consumed.

(5) The highest frequency of impairment is found late in the evening and in the early morning and the degree of impairment andthe severity of accidents is again almost in direct relationship to the time of day.

(6) The number of accidents increases dramatically at a blood level reading of 80 mg. per 100 ml. of blood.

(7) The number and severity of accidents is very pronounced at the so-called moderately impaired level of between 80 and 120mg.

(8) The detection of drivers who are impaired at the moderate level of impairment through observation by trained policeofficers is ineffective.

(9) Increased penalties have not been an effective deterrent.

(10) The most effective deterrent is the strong possibility of detection. 22. The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increasethe perceived risk of its detection, which is essential to its effective deterrence.

In my opinion the importance of this role makes thenecessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justifiedin a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more seriousbreathalyzer stage. [19] In 1990, the Supreme Court of Canada wrote the following in Ladouceur v. R.:[5] There cannot be any serious doubt that the legislation in question deals with a pressing and substantial concern.

The statistics paint adepressing picture of the killing and maiming that results from the operation of motor vehicles on the streets and highways of the nation.The evidence filed vividly demonstrates the validity of the pressing and substantial nature of the concern. . . . In addition, significant weight must be given to the statistical evidence that demonstrates a positive correlation between unlicenseddriving and an increased risk of serious highway accidents. In 1984, for example, there were 330,000 reported automobile accidents inOntario, 1500 of which resulted in fatalities.

Of the total of 330,000, over 6,000 (roughly 2 percent) involved unlicensed drivers.However, in what I consider a truly astounding figure, of the 1,500 fatal accidents, over 100 (or roughly 7 percent) involved unlicenseddrivers. In other words, in accidents involving licensed drivers, the probability of fatalities was 214 to 1, while for unlicensed drivers thesame probability was 59 to 1. The same type of comparison for insured and uninsured vehicles involved in fatal accidents yielded resultswhich were almost as marked.

To drive without proper insurance increases the chances of involvement in fatal accidents from 212 to 1 to83 to 1 (Ontario Motor Vehicle Accident Facts: 1984). The statistics for 1982 and 1983 reveal a comparable pattern. . . .

Another facet of the proper legislative goal of safety on the highways is the reduction of impaired driving. The studies on this subject have been well publicized over recent years. Once again, the evidence is overwhelming in its confirmation of the relationship between serious accidents and driving under the influence of alcohol or other drugs.

In 1984 the presence of alcohol and drug use as a percentage of the total number of accidents rose from 8 percent for all accidents to 10 percent for accidents involving injuries, and even higher to 31 percent in accidents involving fatalities (Ontario Motor Vehicle Accident Facts: 1984). This correlation became the justification for widespread campaigns aimed at educating people about impaired driving, and at organized random stop programs like R.I.D.E. in larger centres aimed at reducing the incidence of impaired driving. (I underlined) [ 20 ] In 1995, the Court dedicated a full

section of Bernshaw , [6] i.e. paragraphs 16 to 19, to the problem of drinking and driving, providing some striking statistics. 16 Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted: Impaired driving is a serious crime.

Every year thousands of Canadians are killed and many more injured in traffic-related accidents. Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation — D. R. Mayhew et al. [ Alcohol Use Among Persons Fatally Injured in Motor Vehicle Accidents: Canada 1990 ] 1992:33). ("Impaired Driving — Canada, 1991" (1992), 12:17 Juristat 1, at p. 2.) 17 Statistics Canada has compiled a variety of figures with respect to motor vehicle accidents in general. Between 1983 and 1991, 41,000 individuals died in traffic accidents in Canada.

A further 2.5 million people were injured: "Impaired Driving — Canada, 1992" (1994), 14:5 Juristat 1. In 1992, the total number of deaths resulting from motor vehicle accidents was 3,289: Causes of Death 1992 (1994), at pp. 246-51. This figure includes drivers, passengers, cyclists, and pedestrians.

In 1987, motor vehicle accidents were responsible for injuries requiring 762,000 days of in-hospital medical treatment and causing 12 million days of lost activity and employment: Accidents in Canada (1991), at pp. 61-64. 18 Statistics Canada observed that alcohol is a contributing factor in 43 percent of those motor vehicle accidents which cause death and injury.

Interpreting Statistics Canada's general motor vehicle accident statistics with reference to this 43 percent figure, it would seem that alcohol was a contributing factor in: -some 17,630 individual deaths between 1983 and 1991; -approximately 1,075,000 individuals injured between 1983 and 1991; -about 1,414 additional deaths (including drivers, passengers, cyclists and pedestrians) in 1992; -327,660 days of in-hospital medical treatment in 1987; and -5,160,000 days of lost activity and employment in 1987. 19 These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving.

The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones.

The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem. [ 21 ] In 2005, when assessing the legislative methods for addressing the problem, the Court stated the following in Orbansky and Elias : [7] 55 There is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective. [ 22 ] Lastly, the famous case of St-Onge-Lamoureux [8] contains the following: [33] Parliament’s decision to resort to the presumptions of accuracy and identity to help combat the problems resulting from drinking and driving is not at issue in this appeal; rather, what are at issue are the means available to rebut those presumptions.

Parliament intended to limit the evidence that can be adduced to raise a reasonable doubt about the reliability of the test results. As can be seen from the legislative history, the objective of the amendments, which form part of a scheme whose purpose is to “reduc[e] the carnage caused by impaired driving” ( Orbanski , at para. 55 ), was to give the reliability of the test results a weight consistent with their scientific value. [ 23 ] The means to combat drunk driving developed by Parliament change with the times.

When reading the cases cited above, it appears that, because of the urgency and importance of addressing that problem, the constitutional safeguard of certain infringements on

the rights guaranteed by the Canadian Charter of Rights and Freedoms was authorized (for example, the authority to subject someone to alcohol screening tests before allowing access to an attorney). [ 24 ] The other tool available is prohibition from driving. [ 25 ] All the judges of the Court of Québec sitting in the Criminal Division are well aware that fines have almost no impact on the progress of a drunk driving case and the position of the accused.

When a charge is liable to result in a fine and a prohibition from driving, the accused are indifferent to the fine and are only concerned about the prohibition from driving. All their questions, worries and hesitations focus on the prohibition from driving, its terms, its duration, the consequences for failing to comply, etc. No one asks about the fine. [ 26 ] To them, the only real sentence is the prohibition from driving. To those who can afford it, a fine of $1000, $1200 or $2000 is of no consequence.

As for the others, all those cases invariably appear, several months later, on the roll for the collection of unpaid fines. [ 27 ] Speaking for myself, I always tell an accused who does not have an attorney or who is convicted of that type of offence, that the consequence of driving while prohibited from doing so is generally imprisonment.

I know that most of my Court colleagues do the same. [ 28 ] Otherwise, if it became known that driving while prohibited from doing so results in a fine of $1500 or $2000, I have no doubt that all the accused who can do so would choose, as soon as they plead guilty, to pay their base fine, as well as the fine for driving while prohibited, for a total of about $3000, so that they can drive while prohibited. [ 29 ] All the experience I have acquired sitting on hundreds of cases involving drunk driving has allowed me to observe the many means, particularly financial, that are deployed to avoid a conviction.

This clearly indicates that the only truly relevant consequence is prohibition from driving. Besides which, that is what all the accused say when they speak about the matter. [ 30 ] That long aside was essential in order to explain that, by analogy, as the Supreme Court stated in the previous decisions, a method of repression certainly has a greater chance of succeeding if there is a perception that detecting those at fault will be easy and that the consequences cannot be avoided. [ 31 ] Fine are obviously an insignificant consequence to the scourge of drunk driving.

If the only true consequence is typically applied in a half-hearted manner, the entire exercise becomes futile. To those who can afford a fine, the risk is worth it. To those who are insolvent, adding one, two or several thousand dollars to a fine they cannot pay makes no difference either. [ 32 ] In the judicial district of Bedford, the usual sentence for this type of offence is 30 days of imprisonment.

I see no reason why a frequently pronounced sentence should be suspect. [ 33 ] Just as the higher courts have reiterated countless times the extent to which the lower courts are bound by joint recommendations ( Mailhot c. R. [9] , Poulin c. R. [10] , Boivin c. R. [11] , Oweetaluktuk c. R. [12] , Gagné c. R. [13] , Dumont c.

R. [14] , etc.), in the name of the trust that must be placed in attorneys, valuable officers of justice and experienced individuals who have weighed all the relevant factors, I believe the same weight must be given to the current joint recommendations that prison sentences be handed down for driving while prohibited. [ 34 ] I must assume that the attorneys who made those recommendations also considered the alternatives, the objective gravity of the offence and the circumstances particular to the accused. [ 35 ] What about the case of Terry Bell?

At the risk of repeating myself, let me point out that I invited the accused and his attorney to provide explanations about circumstances that could justify, or at least reduce, the accused’s criminal responsibility. [ 36 ] If the accused moved to Cowansville to avoid having to use his vehicle to go to work, why did he use said vehicle on the day in question? I have no explanation. I also see no reason explaining why he did not have an alcohol ignition interlock device installed in his vehicle.

There is no indication that attempts were made to find other solutions, such as asking a spouse, a friend or a family member for a ride, or calling a taxi. [ 37 ] In short, the circumstances are in no way comparable to those of Éric Morin in the judgment of the Honourable Justice Marchand in file 460-01-022573-101 (in which the employee the accused normally hired as a driver, had to go to the hospital), or to those reported in Lambert , of Charbonneau J. in file 455-36-000146-105 (in which the accused, who lived in a rural area, had made ongoing arrangements with his spouse who, on the morning in question, was not feeling well, whereas the accused had important work obligations). [ 38 ] However, I note that the accused was not seen leaving a bar or spotted late at night in shady circumstances.

Furthermore, it seems that the event did not involve any alcohol. [ 39 ] For the above reasons, I believe that the deterrence factor must take precedence, and I would add that the deterrence must be coherent, given its link with the accused’s other conviction. [ 40 ] Given the factors listed above and the fact that they must be weighed, consequently, Terry Bell is SENTENCED to 20 days of imprisonment and to pay the costs and surcharge within 45 days. __________________________________ Serge Champoux J.C.Q.

Mtre. Geneviève Crépeau Counsel for the prosecutor Mtre. Maryse Pinsonneault Counsel for the accused Date of hearing: July 9, 2015