2014 QCCQ 2487, 2014 QCCQ 2487

R. c. Abuel 2014 QCCQ 2487 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No: 500-01-084767-133 DATE : March 27 th , 2014 ______________________________________________________________________ BY THE HONOURABLE THIERRY NADON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

Ruben Honrade ABUEL Offender _____________________________________________________________________ ADDENDUM TO JUDGMENT ON SENTENCE ______________________________________________________________________ A correction was made to the judgment dated 26 March 2014. Paragraph [ 17 ] Unfortunately, defence counsel, despite requests and opportunities did not provide any case law but asked for the preparation of a pre-sentence report and argued that between three and six months of imprisonment would be a reasonable sentence. The case was postponed to March 24 th , 2014 in order to receive the report.

Paragraph [ 21 ] On March 24 th , 2014 , the defence reiterated that a three-month period of incarceration to be served intermittently should be imposed. The offender declined the offer to make any comments. __________________________________ THIERRY NADON, J.C.Q. Me Denise St-Jacques Attorney for prosecution Me Alexandre Goyette Attorney for the offender Dates of hearing: December 19, 2013 January 6, 8, 23 2014, March 24 th 2014.

JN 0409 R. c. Abuel 2014 QCCQ 2487 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No: 500-01-084767-133 DATE : March 26 th , 2014 ______________________________________________________________________ BY THE HONOURABLE THIERRY NADON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

Ruben Honrade ABUEL Offender _____________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ OVERVIEW [ 1 ] After guilty pleas, what sentence should be imposed on an offender with no prior convictions who drove without a license, while intoxicated with Crystal Meth in a stolen car and led police officers on a long, high speed and extremely dangerous chase on city streets and highways? That is the question at issue in the case at bar. A.

Facts [ 2 ] On January 11 th 2013, an Acura MDX was stolen in front of a house in Westmount. [ 3 ] On January 26 th , 2013, at 1:44 AM, a police officer noticed the Acura MDX in the Côte des Neiges area of Montreal. As the officer approached the vehicle, the offender started the car and sped off. The offender did not have a driver's licence. The officer took chase and discovered that the car had been stolen.

During the chase, the offender zigzagged, crisscrossed, burned red lights, and increased his speed in residential and commercial city streets. [ 4 ] The officer desperately tried to stop the offender from entering the highway but to no avail. The offender increased his speed and failed to stop. On the Decarie Expressway, police officers were unable to intercept him. [ 5 ] The offender then took Highway 40 in the westerly direction. Police cruiser lights on, officers tried to slow him down, but he reached up to 175km/h.

Because of the dangerousness of the situation, the officers had to abandon the pursuit in order to prevent an accident. [ 6 ] The offender exited at St-Charles in Kirkland approximately 20 kilometres from the original point. At 1:57AM, a police officer noticed an abandoned car near a gas station and saw steps in the snow. He followed the steps and found the offender. He appeared confused. He was arrested. An expert evaluator from the Montreal Police determined that the offender had consumed Crystal Meth . [ 7 ] Thankfully, and miraculously, no one was injured. B. Judicial Facts and Position of the Parties

[ 8 ] On December 19 th , 2013, the offender entered guilty pleas on the three counts of the information: operating a vehicle while his ability was impaired by alcohol or drugs, (s. 253(1)(

a) Cr.c.), while being pursued by a peace officer in order to evade the peace officer did fail to stop (s. 249.1(1)(2)

a) Cr.c.) and possession of stolen property exceeding 5000$ (s. 355a) Cr.c.) [ 9 ] When asked if he had anything to say before sentence the offender acknowledged having consumed Crystal Meth but denied some of the manoeuvres in the city part of the pursuit [1] . [ 10 ] Without any case law to support it, the Crown argued for 6 months of incarceration. [ 11 ] The defence suggested, also without any case law, a three-month prison term to be served intermittently.

It based its suggestion on the absence of prior convictions, the possibility of rehabilitation and the fact that the offender was not a regular Crystal meth user and was unaware of its effects. According to counsel, the offender is the primary care giver for his 3 and 9 year old children while his wife works outside the house. [ 12 ] The offender has, since the commission of the offences in the case at bar, been convicted for three breaches of conditions. He has been detained since December 6 th 2013. [ 13 ] The Court postponed the sentence to January 6th, 2014.

After preparing and reading case law for the judgment, the Court determined that it needed to hear the parties and required them to submit case law in support of their submissions. [ 14 ] On January 6th, defence counsel failed, even after having been called numerous times, to attend court. The case was postponed to January 8th. [ 15 ] On January 8th, the Court voiced its concern on the fitness of the suggestions of counsel. It invited counsel to argue and provide case law on the sentence and the question of consecutive or concurrent sentence for the count of evading a peace officer.

The case was postponed to January 23rd for arguments. [ 16 ] On January 23 rd , Crown counsel citing Roberts [2] , De Souza [3] and Witvoet [4] argued that sentence for evading a peace officer should be consecutive to the sentence for the crime the offender is fleeing. The Crown also provided cases of sentences for impaired driving [5] , and dangerous driving [6] . [ 17 ] Unfortunately, defence counsel, despite requests and opportunities did not provide any case law but asked for the preparation of a pre-sentence report and argued that between three and six months of imprisonment would be a reasonable sentence.

The case was postponed to March 24 th , 2013 in order to receive the report. [ 18 ] A report was prepared by Probation Officer Marius Magdes. In

summary, it is negative. 41 years old, the offender has had an addiction to methamphetamines since 2008. This contradicts his argument that, at the time of the offence, he ignored the effects of Crystal meth or that he was not a regular user. [ 19 ] The offender has been without a job for more than five years and living a life based on pleasure, drug consumption and neglect of his life and parental responsibilities. This contradicts another one of his argument: that he is the primary care giver for his children. [ 20 ] He refuses to participate in any therapy to deal with his drug problem.

Wishful thinking leads him to believe that he will be able to deal with it by himself. The prospect of recidivism is moderate. [ 21 ] On March 24 th , 2013, the defence reiterated that a three-month period of incarceration to be served intermittently should be imposed. The offender declined the offer to make any comments. [ 22 ] The Crown reiterated its request for a six-month period of incarceration followed by a probation order of three years and a prohibition on driving for three years. The defence agreed with the term of the prohibition on driving. C. Legal Principles Relevant in the Case at Bar 1.

General Principles on Sentencing [7] [ 23 ] Imposing sentence is a polycentric exercise that requires a consideration of numerous factors and the application of penal objectives and principles [8] . [ 24 ] A sentence should strive to achieve four overriding principles: proportionality, tailoring, parity and restraint. [ 25 ] The sentence should be proportional to the gravity of the offence and the degree of responsibility of the offender. (s. 718.1 Cr.c.) It needs to be tailored to the personal circumstances of the offender.

It must be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". (s. 718.2(

b) Cr.c.) The Court must show restraint and consider all other available sanctions other than imprisonment if reasonable in the circumstances. (s. 718.2 (e)) Where consecutive sentences are imposed the combined sentence must not be unduly long or harsh. (s. 718.2c) Cr.c.) [ 26 ] The Court must also consider the fundamental purpose of sentencing of contributing to the respect for the law and maintenance of a just and peaceful society (s. 718 Cr.

c) and the objectives of sentencing such as denunciation, deterrence and rehabilitation. (s. 718 (a) (b)(

d) Cr.c.) [ 27 ] Finally, the Court must evaluate if the other sentencing principles found at s. 718.2 Cr.c. are applicable and sentence the offender

accordingly. 2. Driving Offences and Sentencing [ 28 ] Driving is a privilege and a "licensed activity that is subject to regulation and control for the protection of life and property [9] ". [ 29 ] Driving under the influence of drugs is dangerous and the consequences possibly fatal. Impaired driving is often committed by otherwise law-abiding citizens [10] . [ 30 ] The Quebec Court of Appeal has stressed the fact that deterrence and denunciation are paramount principles when sentencing offenders who commit crimes involving motor vehicles.

Exemplary sentences should be imposed in order to send a clear message that society does not tolerate such conduct. Denunciation can thus be expressed by longer incarceration periods which can have a deterrent effect on the offender and all those tempted to act the same [11] . 3. The Dangerousness of Crystal Methamphetamine and Driving [ 31 ] Crystal methamphetamine is a dangerous drug. Parliament has included it in

Schedule 1 of the Controlled Drugs and Substances Act along with cocaine and heroin. Offences involving trafficking of such a drug can attract a sentence of life imprisonment. [ 32 ] The effects and description of the drug was summarized by Justice Brown of the Ontario Court of Justice in R. v. Paper , 2010 ONCJ 88 , at. para. 16: "[16] As noted in the materials in evidence, methamphetamine is highly addictive. It can speed up the body’s central nervous system. It is made in illicit laboratories with inexpensive ingredients which are often toxic or flammable.

It exists as a powder that dissolves easily in water or alcohol and may be snorted, swallowed, smoked or injected. In its smokable form, it is called ice or crystal. It is smoked in a pipe like crack cocaine. Recently it is attainable at low cost, and is easily manufactured. It is used among young people at raves, nightclubs and parties, and by cocaine users who use it for its cocaine-like effects. Immediately after smoking or injecting it, the user experiences an intense surge of euphoria referred to as a rush or flash. Snorting produces effects within 3 to 5 minutes, and swallowing within 15 to 20 minutes.

Tolerance to this drug builds quickly and regular users need more and more to achieve the desired effect. Some users take the drug continuously over days or weeks in a “binge and crash” pattern, giving rise to potentially serious health risks and leading to drug dependency. Stopping usage often causes strong cravings for the drug and triggers withdrawal symptoms. Methamphetamine can make people feel alert and energetic, confident and talkative. They feel little need for food or sleep. Effects include racing of the heart, chest pain, dryness of the mouth, nausea, vomiting and diarrhea and physical tension.

A user may experience an anxious wired feeling of restlessness and irritability. The negative effects of methamphetamine can be extreme and alarming and include paranoid delusions, hallucinations, aggressive behaviour and impulsive violence. An overdose of methamphetamine can result in seizures, high body temperature, irregular heartbeat, heart attack, stroke and death." [ 33 ] Driving under the influence of a drug such as Crystal Meth which can make you paranoid, delusional, aggressive, impulsive, violent and irritable is a recipe for disaster.

In such circumstances, the use of a car amounts to no less than using a weapon that can kill, injure, maim and destroy. [ 34 ] The Court concludes that when dealing with an offender convicted of driving under the influence of Crystal meth , deterrence and denunciation are, as they are for trafficking in such a substance [12] , paramount principles. The message should be loud and clear that such conduct is extremely dangerous, will not be tolerated and punished with an exemplary sentence. 4. Evading a Peace Officer: Principles of Sentencing [ 35 ] Parliament enacted

section 249.1 Cr.c. in 2000 [13] .

It provides for a maximum of five years of imprisonment when no injury results from the offence. [ 36 ] An offence that is very dangerous to the public [14] , evading a peace officer is considered by Parliament and Courts to be more serious than impaired driving, criminal negligence or dangerous driving [15] . [ 37 ] It is an aggravated criminal offence that cannot be committed in a trivial or technical fashion; deliberate illegal evasion is necessary under 249.1 Cr.c. [16] . [ 38 ] It should be considered as a separate offence distinct from the one for which the offender is fleeing.

Thus, it should be punished with a consecutive sentence, if not it would wipe it and virtually repeal the offence [17] . The sentencing regime should not create an incentive to flee [18] . [ 39 ] Two exceptions permit the imposition of concurrent sentences: where the actus reus of the flight and other offence overlap or where the overall sentence would not be fit. [19] [ 40 ] The sentence for flight should also equal or exceed the penalty for the pre-existing offence if not deterrence (individual or general) would not be achieved [20] .

It should elicit a "stern response [21] " from Courts. [ 41 ] A review of the range of sentences imposed for flight greatly varies depending on whether no injury, injuries or death resulted. Although the length of imprisonment varies, a prison sentence is always imposed. [ 42 ] For example, in Saskatchewan, the Court of Appeal reviewed five cases where no injuries were inflicted, and sentences ranged

from 12 months where driving was not particularly dangerous to 2 years [22] . [ 43 ] In Quebec, sentences range from ninety days of imprisonment [23] , seven months [24] one year concurrent [25] , reduced to twelve months [26] , eighteen months [27] to twenty-six months [28] . [ 44 ] A review of recent 2013 and 2014 cases reaffirmed the necessity of prison for relatively long periods. [29] 5.

Surcharge [ 45 ] On October 24 th , 2013, paragraph 737(5) Cr.c. was repealed [30] taking away the Court's discretion to exempt the offender from paying the victim surcharge where it would result in undue hardship. [ 46 ] Mr. Abuel's crimes were committed before the coming into force of the Increased Offenders’ Accountability for Victims Act. Thus two questions need to be answered: does the act apply retrospectively to offender's who committed crimes before its coming into force? And does

section 11i) of the Charter apply? [ 47 ] This Court agrees with the conclusions of Judge Gorman of the Newfoundland and Labrador Provincial Court in R. v. Williams [31] and finds that the provisions of the act have a prospective effect. Alternatively,

section 11i) of the Charter applies to the surcharge [32] . [ 48 ] Consequently, the law as it existed at the time of the offences committed by Mr. Abuel applies, enabling the Court to exempt the offender from the payment of the victim surcharge if undue hardship would result. D. Analysis [ 49 ] The offences committed by the offender were extremely serious and grave.

Leading police officers on a car chase in city streets and highways at speeds up to 175 km/h while intoxicated with Crystal meth in a stolen car is mind-boggling, dangerous and potentially fatal. [ 50 ] The offender's degree of responsibility is full. One cannot consume Crystal meth and then try to reduce his responsibility by arguing that he did not know the effects.

This is more so in the case at bar, knowing that the offender has had an addiction to the drug since 2008. [ 51 ] The aggravating factors are numerous: no driver's licence, danger to the lives of police officers and members of the public, danger to other drivers, high speed, residential area, stolen car, the nature of the drug and the distance travelled. [ 52 ] As for the mitigating factors, the Court notes the absence of prior convictions at the time of the offences, his family obligations and guilty pleas. [ 53 ] The suggestions made by the Crown and the defence do not reflect the seriousness of the offences and fail to adequately denounce the acts.

Furthermore, being too lenient it fails to deter and favours rehabilitation at a cost of unreasonability. [ 54 ] The Court needs to send a stern response in order to deter the offender and the public from committing such offences in the same circumstances. It also needs to denounce such conduct by imposing a sentence that reflects the dangerousness of the acts committed. The Court must also keep in mind the prospect of rehabilitation, although dim. [ 55 ] Being a more serious aggravated offence, the punishment for evading a peace officer has to be harsher than the one for driving under the influence.

The actus reus of the two offences do not overlap and target different behaviours thus mandating consecutive sentences. The possession of stolen property also targets a different behaviour. However, the Court must impose an overall fit sentence and for that reason, the punishment for this count will be concurrent. For all these reasons: The Court imposes For count 1 : driving under the influence: 6 months of imprisonment consecutive For count 2 : evading a police officer: 9 months of imprisonment consecutive For count 3 : possession of a stolen car: 3 months of imprisonment concurrent.

The Court imposes a total of 15 months of incarceration. The period already served in custody, since December 6 th , 2013 (3 months and 20 days) will be deducted. The sentence as of today will

be of 11 months and 10 days.

ORDERS that the offender, be on probation for a term of two years on the following conditions: -Keep the peace and be of good behaviour, -Appear before the court when required to do so by the court, -Report to a probation officer within 24h of your release from jail and thereafter whenever required by the probation officer and in the manner directed by him, -Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation, -Abstain from consuming drugs or other substances the simple possession of which is prohibited by law, -Abstain from being in places where drugs are used, sold or trafficked in. -Provide for the support or care of his dependants.

PROHIBITS the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment under 259(1) Cr.c. and 259(2) Cr. c. for a period of 36 months; ORDERS the forfeiture of the offender's driver license; ORDERS that the driving prohibition order be read, a copy be given and informs the offender that driving while disqualified constitutes a criminal offence; Because of the incarceration, lack of employment and two young children to take care of, the Court concludes that the payment of the victim surcharge would result in undue hardship and waives the surcharge [33] . __________________________________ THIERRY NADON, J.C.Q.

Me Denise St-Jacques Attorney for prosecution Me Alexandre Goyette Attorney for the offender Dates of hearing: December 19, 2013 January 6, 8, 23 2014, March 24 th 2014.