R. v. Clements, 2013 MBPC 69

CITATION: R. v. Clements , 2013 MBPC 69 Date: 2013 12 04 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Eva Marciniak ) for the Crown ) and ) ) ) Anthony Clements ) Karl Gowenlock ) for the Accused ) ) Oral decision delivered: ) December 4, 2013 ) ) Written Reasons for Decision delivered: ) December 18, 2013 KRAHN P.J. Introduction [ 1 ] Anthony Clements has plead guilty to impaired driving cause bodily harm and breach of recognizance by failing to reside as required by a recognizance. What is the appropriate sentence for these offences?

The Crown asked the court to impose a sentence of two years less one day and two years probation. The Accused asked the court to note 90 days time in custody and impose three years probation. History of Proceedings [ 2 ] The Court heard sentence submissions on November 14, 2013. I adjourned the sentencing hearing pending the resolution of charges which were alleged to have occurred on September 2, 2013 of care and control of a motor vehicle while impaired. This charge was scheduled for trial on November 27, 2013. On December 4, 2013 I heard additional sentence submissions.

There were time constraints on that date. I decided to give brief reasons for the sentence I imposed and indicated more detailed reasons would follow. These are those reasons. Circumstances of the Offences [ 3 ] On May 29, 2011, shortly before 4:00 in the afternoon, in the City of Thompson, Manitoba, the accused was driving his white Chevy truck when he turned in front of a Chrysler Sebring operated by Ms. Sukhveer Kullar. The accused struck Ms.

Kullar’s vehicle with sufficient force that he turned her vehicle 90 degrees and forced it up onto a boulevard where it came to a stop against a chain link fence, adjacent to a park. There were two young children in the backseat – Ms. Kullar’s nephew who was nine years old and her son (whose age the Crown did not know). The accused did not stop after the accident to check on the well-being of the occupants of the

Sebring. Ms. Kullar and the children were taken to the hospital where they were treated for bruises. Ms. Kullar had a bruise across herchest from the seatbelt, was unable to move her arm and was in a great deal of pain as a result of her injuries. The three were treated atthe hospital and released. A witness to the accident, Lawrence Pronteau, told police that he saw the truck in his rear view mirror drivingerratically, the accused’s vehicle had cut him off and then caused the accident.

He told police that the Sebring did not “stand a chance”to avoid the accident. [4] Prior to coming upon the accident, police had received a complaint regarding an intoxicated male in a white Chevy truck. Thecitizen who reported this explained that people were trying to get the male out of the truck. The male was in the driver’s seat. Thewitness had seen significant damage to the front of the vehicle. Police attended and noticed extensive damage to the front bumper of thetruck. They asked the homeowner where the driver of the truck was and were led upstairs.

They located the accused, passed out, facedown on the bed with his legs hanging off the side. He was arrested. Police observed that the accused had a strong odour of alcohol onhis breath, glassy eyes and appeared to be unable to focus. He was unable to stand unsupported. The accused was told three times thathe was under arrest for impaired driving as he kept asking what he was under arrest for. The accused responded, “You guys are in somuch trouble.” Once outside the residence, he was formally arrested for impaired driving and provided with his Charter rights.

Whenasked if he wanted to call counsel, he commented, “No I just wanna get out and have fun.” The accused provided two breath sampleswhich resulted in readings of 260 mg of alcohol in 100 millilitres of blood. [5] On February 15, 2009, the accused was charged in Barrie, Ontario for impaired driving and refusal. He failed to appear onthose charges resulting in charges of failing to appear. On the fail to appear charges, he was released on a recognizance which requiredthat he reside in Innisfill, Ontario. He has plead guilty to failing to reside as directed by his recognizance.

Circumstances of the Offender [6] The accused has two convictions on his criminal record. On July 5, 2001 he was convicted of driving with more than 80 mg ofalcohol in his blood. He was fined $600 and prohibited from driving for one year. On May 14, 2002, he was convicted of driving whiledisqualified and sentenced to 18 days intermittent, one month probation and a six month driving prohibition. [7] The accused was charged with impaired care and control of a motor vehicle in September 2013 in Gimli, Manitoba. He wasdenied bail on that charge and bail was revoked on the charges before this court.

He was also in custody from May 29 to June 14, 2011on the charges before this court before he was released on his own recognizance. [8] The accused argued that it was not clear that he was still pending on the impaired charges from Ontario and in any event, itwas inappropriate for me to consider either of his pending charges – the one from Ontario in 2009 or his most recent charges of care andcontrol while impaired and breaches of recognizance from September of this year.

After hearing the submissions on sentence on November 14, 2013, I adjourned the sentencing pending the outcome of his trial on the September charges in Gimli on November 26th,2013. I noted that section 723(3) of the Criminal Code allows the court, on its own motion, after hearing submissions, to require theproduction of evidence that would assist in determining the appropriate sentence.

In my view, it was necessary to know the dispositionof the charges from September 2013 as they impact the weight and credibility that can be attached to the accused’s assertion in the pre-sentence report (PSR) that he had quit drinking; and impact the potential for rehabilitation. The fact that the trial on the outstandingcharges was only two weeks away resulted in only minimal delay and that delay was outweighed by the importance of having thatresult. It was an important factor in the determination of the appropriate length of sentence in this case. [9] On December 4, 2013, counsel advised me that Mr.

Clements had been convicted on November 26, 2013 of care and controlwhile impaired. He was fined $1,300. He was also convicted of two counts of breaching his recognizance by failing to abstain from theconsumption of alcohol and driving contrary to a condition in his recognizance. He received fines of $200 on those offences. Counselalso confirmed that the accused’s charges of impaired driving and refusal to provide breath sample were still outstanding in Ontario. Iwas advised that the accused anticipated dealing with these charges once the matters in Manitoba have been completed.

I will deal laterwith what use I made of the pending charges in Ontario. [10] The accused has his Red Seal as a carpenter. He was employed with PCL construction for eight years and more recently byBird Construction. Exhibit S-2 contained confirmation that he has full time employment, that his absence from the jobsite has beenmissed by his fellow co-workers and that co-workers have already made plans to drive him to and from the work site. A letter ofreference from his girlfriend, Tamara Brooks, was filed as part of Exhibit S-2. It attests to the love Ms.

Brooks has for the accused andthe financial hardship his continued detention has on her. Ms. Brooks believes that Mr. Clements has learned his lesson and willcontinue with Alcoholics Anonymous (AA). She intends to be a support for him in the community and is committed to not allowingalcohol in her home. His mother also described in a letter that she believes he has hit “rock bottom” and will never drink again. Sheconfirmed that he has always been a hard worker and that Ms. Brooks is good for him. Both letters of reference say that Mr.

Clementswants to be a good role model for his daughter. [11] The PSR provides an overall assessment of low risk to re-offend although in relation to his criminal history alone he is amedium risk to re-offend. Mr. Clements told the probation officer in July 2013 that he had not drank since the May 29, 2011 incident inThompson. During the sentencing submissions, his counsel admitted that he had had a “slip” and drank alcohol in September, 2013. Positions of the Crown [12] In support of its position of two years less one day incarceration, the Crown filed a casebook including the following four cases: [13] In R. v.

Gutoski, (MB CA), 63 Man. R. (2d) 246, 1990 CarswellMan1, a decision of the Manitoba Court ofAppeal, the offender was convicted of impaired driving cause bodily harm when he struck two children on a sidewalk who received“moderately severe injuries”. He blew 140. He had no prior record. Gutoski was described as a slow learner. The Court of Appealoverturned a fine of $1,000 and one year probation and substituted six months in jail and confirmed the one year of probation.

Atparagraph 12 the court held that offences of impaired driving cause bodily harm should normally result in sentences of imprisonment, aprinciple which both parties agree on in this case. The dispute is over the length of the sentence. At paragraph 14 the court found that

remorse is a reason for leniency where specific deterrence is the primary concern but not where general deterrence is the goal of the sentence. In that case, the mitigating features were strong so the court reduced the length of the sentence. [ 14 ] R. v. Henderson , 2012 MBCA 9 , 2012 CarswellMan 36 is a more recent decision of the Manitoba Court of Appeal. The accused took a prescription drug which had the side-effect of causing her to drink compulsively and make poor choices.

The accused hit a City of Winnipeg street cleaning truck pinning the worker between her vehicle and the truck causing horrendous injuries and permanent damage to the worker’s legs. The sentencing judge suspended sentence for two years finding the offender’s circumstances met the extraordinary exception which allowed the judge not to impose a jail sentence. The Crown appealed. The Crown’s position was that the range of incarceration is three months to high end provincial time.

The Court confirmed that for impaired driving cause bodily harm the sentence must be denunciatory, try to deter drinking and driving and therefore should include a period of imprisonment (at paras 40, 55 and 71). The numerous amendments to the Criminal Code since 1985 also demonstrated Parliament’s intention to make these principles the primary goals when imposing sentence – which include amendments that now remove the suitability of conditional sentences for these offences. [ 15 ] R. v. Roulette is an unreported decision of The Honourable Mr.

Justice Dewar of the Manitoba Court of Queen’s Bench from June 29, 2011(CR10-01-30108). It is an example of one sentencing judge’s application of the sentencing principles applicable to impaired drivers who cause bodily harm. The Court identified the sentencing range as including a fine and probation to 30 months incarceration. Mr. Roulette had dated, unrelated convictions. Mr. Roulette was highly intoxicated, hit three parked cars and injured his passenger who suffered a severe laceration to his face. His alcohol readings were 230 or higher. Mr.

Roulette than left the scene of the accident, not waiting for paramedics to arrive, which the court found to be an aggravating factor. Justice Dewar imposed one year incarceration, two years probation and a three year driving prohibition. [ 16 ] R. v. Ruizfuentes 2010 MBCA 90 , 2010 CarswellMan 583 is another decision of the Manitoba Court of Appeal. The offence there was impaired driving cause death. The accused before me argued that Ruizfuentes has no precedential value in this case. I disagree. The principles of denunciation and deterrence apply with equal force to the charge before this court. Mr.

Ruizfuentes had no prior criminal record but had a bad Highway Traffic Act record. He had driven through three red lights before driving through a red light that killed the other driver. The Court of Appeal reduced the six year sentence to one of 4 ½ years and reduced the driving prohibition from 15 years to 7 ½ years. [ 17 ] Ruizfuentes identifies the ranges of sentence for drivers who cause death both for those offenders with no prior records and those with prior records.

Those identified ranges are not applicable here but the principles underlying the sentence for that offence are the same as those for the offence before this court. I also take from that case that different ranges apply for those offenders who have prior related records and those who do not. The court again identified the applicable principles and that the sentence must express society’s condemnation for the accused’s actions and send a message to others of this view (at paragraphs 31 and 33). Sentencing judges are to consider the offender’s level of culpable or blameworthy behavior (see paragraph 37 and 38).

To assess this, one considers the intentional risk-taking of the offender, the harm caused by the offender and the normative character of the accused’s conduct. While the court is not to lose sight of the harm done, the focus is on the culpable behavior or the blameworthiness of that conduct that must be assessed. Position of the Defence [ 18 ] In support of its position of 90 days time in custody (as of November 14, 2013) and three years probation, the accused filed the following cases: [ 19 ] R. v. Mosher 2012 CarswellMan 94 is a decision by my colleague, Judge Smith.

The 20 year old offender drove through a flashing red light and injured two police officers who suffered soft tissue injuries and one suffered a dislocated shoulder. They were treated at hospital but not admitted. The accused’s Breathalyzer readings were 130. He had no prior criminal record. The judge imposed 45 days – noting that the youth and good background of that offender impacted the imposition of a sentence below the usual range. A further one year probation, $7,526 restitution and 18 month driving prohibition were imposed. [ 20 ] R. v.

Gomez 2013 CarswellMan 58 is a decision of The Honourable Madam Justice McKelvey of the Court of Queen’s Bench. There the 22 year old accused lost control of his car in slippery road conditions and hit a hydro pole. His passengers, his girlfriend and sister, suffered serious injuries including broken bones and fractured vertebrae that kept them from working for three months. His readings were 180 and 190. He was noted as very low risk to re-offend. The court imposed 3 months intermittent, $1500 fine and 3 year driving prohibition. [ 21 ] R. v.

Biernat 2009 CarswellOnt 3413 , is an Ontario Court of Justice decision. The 55 year old offender hit a woman who was walking with her children causing a concussion and a laceration which required two staples to close. The accused had two impaired driving convictions from 2001 and 2008. The latter resulted in a 21 day intermittent sentence. This offence was committed while he was waiting for judgment on the 2008 conviction. Both previous convictions involved accidents and injuries. In relation to the 2008 convictions his wife had testified that he had been going to AA for two years and was a non-drinker.

The court noted that the offender had never been convicted of driving while disqualified and that if that had been the case it would significantly change the sentence (at paragraph 44(9)). The Court there had evidence of intensive treatment programs completed by the accused which included weekly drug and alcohol screening. The Court was impressed with the testimony of the offender’s daughter who had been cynical about her father’s reforms in the past but believed that she had noticed a profound change in the last eight or nine months.

He was sentenced to 90 days intermittent, a five year driving prohibition, victim fine surcharge of $2,500 and two years probation. [ 22 ] R. v. Rooplal 2009 ONCJ 613 , 2009 CarswellOnt 8085 is a decision of the Ontario Court of Justice. The offender there was 32 years old with no prior criminal record. He struck a child who was playing in a yard in a residential neighborhood. The child suffered cuts, bruises and a hairline fracture to the chest. The offender was speeding at over 100 km/h in a 60 km/h zone. His readings were 170 mg.

He was sentenced to 90 days intermittent, two years probation and a four year driving prohibition. [ 23 ] R. v. Stefinashen 2010 CarswellOnt 4826 is a decision of the Ontario Court of Justice. The 18 year old offender who had no

prior criminal record was speeding and hit a tree. He caused a serious brain injury to his girlfriend who was a passenger and a secondvictim suffered fractures, concussion and the insertion of a steel plate to repair a leg fracture. The accused also suffered injuries andbecame depressed. The Court accepted that the offender had stopped drinking entirely and would never be before the courts again (atparagraph 13). The Court identified the sentence range for impaired driving cause bodily harm offences as starting three months andextending to three years (at paragraph 19).

The sentencing judge distinguished the Biernat decision based on the extent of injuries (atparagraph 26). The judge imposed a sentence of six months incarceration and a one year driving prohibition Principles of Sentencing and Analysis in the Case [24] There is no dispute as to the principles of sentencing that must be applied by this court. They are set out in

section 718 of theCriminal Code. The Manitoba Court of Appeal cases referred to by counsel direct that the sentence for this type of offence mustemphasize denunciation and deterrence. The cases are replete with the recognition that impaired drivers cause tremendous damage,injury, death and heartache and therefore must be treated seriously by the court (see Biernat at paragraph 60, quoting from R. v.Bernshaw (1994), (SCC), [1995] 1 S.C.R. 254 (S.C.C.) about the devasting effects of impaired driving). In this case,specific deterrence is also engaged because of the history of re-involvement.

While I agree with defence counsel that completerehabilitation is the best protector of the public, in this case it takes a back seat to the principles of denunciation and deterrence. [25] What use can I make of the fact that the accused at the time of this offence had an outstanding impaired driving charge inOntario which he had not dealt with and that he has been subsequently convicted of care and control while impaired? Defence counselsuggested that I could not consider these factors at all. I do not agree.

Section 725 provides one avenue in which a court can consideroutstanding charges. They require the accused’s consent which was not forthcoming in this case. But this is not an exhaustive code asheld by the Supreme Court of Canada in R v. Angelillo 2006 SCC 55, [2006] 2 S.C.R. 728 at paragraphs 30-32. In Angelillo, theSupreme Court considered the issue of whether a sentencing court can consider evidence of facts tending to establish the commission ofanother offence for which there has not yet been a conviction.

The Supreme Court concluded that such information can be considered“to establish the offender’s character and reputation or risk of re-offending for the purpose of determining the appropriate sentence forthe offence of which he or she has been convicted.” (emphasis in original at para. 32) [26] In R. v. Edwards (2001) (ON CA), 45 C.R. (5th) 177 (Ont. C.A.) the Ontario Court of Appeal held atparagraph 63 that evidence of untried offences may be relevant to show the offender’s background and character which may be relevantto the objectives of sentencing.

The Court of Appeal said that a judge must consider the following factors in deciding whether to admitsuch evidence: • The nexus between the untried offence and the offence of which the accused has been convicted - here both the 2009 Ontarioallegations and the subsequent conviction for impaired care and control entered in November of this year occurred within two years ofthe impaired driving cause bodily harm incident in Thompson.

There is a temporal connection; • The similarity between the offences - here they are same types of offences that is, driving while impaired by alcohol; • The accused’s difficulty in defending against the untried offences - I do not have any specific information in this case but generallyimpaired driving offences are supported by police witnesses based on specific and time-limited observations so they do not generallyimpose a particular difficulty in defending against them – as opposed to unproven allegations that there is a significant history ofdomestic violence in a relationship which might pose more difficult obstacles in terms of defences such as alibi defences; • The effect of the untried offences on the length of hearing - here I found it would and did not have a significant impact. • Whether the accused has adduced evidence of good character - The accused in the PSR and in the letters of reference said that hehad not been drinking since this offence occurred in 2011 so the information of the subsequent conviction is relevant to assess credibilityand character. • The cogency of the evidence of the untried offence - the importance of the untried offences in Ontario is not whether he is guilty ornot guilty of those offences but that he had been charged with them, avoided dealing with them by leaving the jurisdiction and offendedin the manner he did on these offences in 2011.

The outstanding charges could have served as a wake-up call to avoid similar chargesbut they did not and he re-offended. [27] But as noted in Angelillo, I must be very careful not to punish the accused on this sentence for the untried offences or even forhis other convictions. In this case, the background of the offender is important in order to assess his moral culpability and the degree ofdeliberate risk taking.

The untried offence and the subsequent conviction also provide relevant information to the court toindependentlyevaluate the risk assessment set out in the PSR, that is, that he is a low risk to re-offend. The subsequent convictionimpacts the weight and credibility that can be placed on the accused’s assertions that he has stopped drinking and has learned his lesson. [28] In Ruizfuentes, the Manitoba Court of Appeal, relying on the Supreme Court of Canada, (R. v. C.A.M. (SCC),[1996] 1 S.C.R. 500 at para. 80), directed that a sentencing judge must consider the moral blameworthiness of each offender.

Here, theaccused Mr. Clements did intentionally drive while heavily intoxicated. He did so when his previous conviction for impaired driving in2001 and his conviction for driving while disqualified in 2002 should have alerted him to the risk he was taking. Unlike the Hendersoncase where the use of a new drug caused impulsive drinking which reduced the intentional risk-taking by the offender, there was no suchevidence in this case. [29] In assessing the moral blameworthiness of the offender, I considered the harm caused by the offender. Mr. Gowenlock arguedthat the injuries sustained by Ms.

Kullar in this case were on the lower end of the spectrum and therefore did now warrant a lengthy jailsentence. I agree that the injuries are on the lower end of the scale but as noted in Biernat, the injuries in a case are but one factor toconsider and the Court should not be overwhelmed by the extent of the injuries. The intention of Mr. Clements to drive whileintoxicated was the same whether the injuries that resulted from this action were severe or minor.

However, I do find that the nature ofthe injuries impact the sentence in that they lower the appropriate length of sentence significantly from the two year period of

incarceration sought by the Crown. [ 30 ] I also considered the normative character of the offender’s conduct. In this case, the offender’s criminal convictions both before the offences on which I imposed sentence and those which occurred after, demonstrated a pattern of behavior. The evidence of the witness Lawrence Pronteau showed that just prior to the collision with Ms. Kullar the accused was driving erratically and weaving on the road.

In this case, I have decided that the accused’s moral culpability is on the higher end of the scale given his deliberate risk taking behavior. [ 31 ] This incident occurred in 2011, the efforts at rehabilitation have not been overwhelming and appear to have occurred much more recently than in a time proximate to the offence – that is back in 2011 or 2012. His rehabilitation is not supported by any independent reports but by his own assertions and those of his references. In October 2012, while in custody, he completed the Coming to Terms program which helped him identify the risk factors in his decision making.

At the December hearing he filed a letter from Garnet Onischuk, dated December 3, 2013 which confirmed that he has known Mr. Clements for about a year and would support him upon his release to maintain a sober lifestyle. [ 32 ] The pre-sentence report assesses the accused as a low risk to re-offend but we now know that he has re-offended and been convicted of having care and control of a motor vehicle while impaired. In my view, while the attempt to assess his risk is based on statistical generalizations of risk factors, the accused continues to be a medium risk to re-offend.

I am not convinced that he has truly internalized the great danger he poses to the public when drinking to excess and then choosing to get behind the wheel of the vehicle. I say this because of his most recent conviction. I say this because of what he said to the writer of the pre-sentence report at page seven which was he felt ashamed and guilty for what he did as he could have hurt someone. He did hurt someone. It is only fortuitous that the occupants of the other vehicle which included children were not more seriously injured.

In my view, the attitude demonstrated by the accused in the heading of the report Pro-Criminal Attitude shows that his focus remains on the financial impact the charge has had on himself and the consequences that will be imposed by others like a judge rather than feeling real remorse for his own choices. At the November submissions, it was Mr. Clements position that he did not need residential treatment although he would comply with any treatment as directed. I did not see this as a full acceptance of his responsibility and the need for genuine commitment to a sober lifestyle.

He still appeared to lack insight into his offending behavior. In court he did say he was sorry for what he has done which I accept but time will tell whether these words can be translated into actions like not drinking again and not drinking and driving again. Mitigating Factors [ 33 ]

Section 718.2 Criminal Code directs a sentencing court to take into account any aggravating or mitigating circumstances. The mitigating circumstances in this case included: • He plead guilty shortly before the preliminary inquiry preventing the victim of the accident from having to travel to Thompson, Manitoba from Alberta. • He has been gainfully employed and has impressed his employer as a valuable worker. • He has been attending AA while he was incarcerated.

He has a person who will support him as a sponsor when he is released into the community, see Exhibit S-3. • He has the support of his mother and his partner who will work to keep him sober. His partner is committed to an alcohol free home.

Aggravating Factors [ 34 ] The aggravating factors include: • His extreme level of impairment – his readings were more than triple the legal limit. • His attitude at the time police were dealing with him shows either disregard for the victims of the accident or a complete absence of knowledge that an accident occurred – it certainly did not show remorse. • He left the scene of the accident without stopping to render assistance or exchange particulars. • A witness noticed the pattern of erratic driving which continued up until the collision occurred. • He was on a recognizance for impaired driving, refusal to provide breath sample and failures to appear at the time of this offence.

He had absconded from the jurisdiction of Ontario on these charges and failed to appear in court as required by the recognizance. • His prior criminal record. Although the date of those convictions, some nine or ten years previous, reduces their weight as aggravating factors somewhat. Conclusion [ 35 ] I accept that the range of sentences that are ordinarily imposed for impaired drivers who cause bodily harm start at three months and extend as high as 30 months. The imposition of sentence is an individualized process. The authorities provided by Mr.

Clements can be distinguished on the basis that, other than Biernat , the offenders did not have prior criminal records. Biernat can be distinguished on the significant and exceptional steps towards rehabilitation taken by the offender in that case which were not present in this case. In my view, sentences of three months or less are most often imposed for those with no prior record, who demonstrate heartfelt remorse and

have taken steps to ensure that they will not become re-involved in similar offences. [ 36 ] Mr. Clements criminal record and pattern of offending behavior disentitle him to a sentence at the bottom end of the range. When I balanced all of the factors, including the overarching principle of imposing a sentence which is proportionate to the offender’s culpability, the circumstances of the offence and personal background of Mr. Clements, I concluded that the fit and appropriate sentence was one year incarceration. Mr. Clements had served 110 days pre-trial custody which I credited as four months.

The sentence remaining then was one of eight months going forward. In order to provide some community support for Mr. Clement and aid his rehabilitation, this period of incarceration was followed by 18 months of supervised probation with the following conditions: • Within seven days of release from imprisonment, report to a probation officer and thereafter report as directed. • Abstain absolutely from the consumption of alcohol and non-prescription drugs. • Attend, participate in and complete any counselling as directed by your probation officer. [ 37 ] I imposed a three year driving prohibition.

A DNA order was imposed. Since these convictions pre-dated the amendments regarding court costs and witness surcharge and given the fact that the accused had been and was expected to be incarcerated for some time, the costs and surcharge were waived. [ 38 ] The Crown asked me to note default on the recognizance on these charges as a result of the convictions which were entered on November 26, 2013. I am prepared to note default. “Original signed by:” _________________________ KRAHN P.J.