2012 QCCQ 2797, 2012 QCCQ 2797

Unofficial English Translation R. c. Larouche 2012 QCCQ 2797 JD 2679 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ALMA “Criminal Division” No.: 160-01-000626-093 and 160-01-000283-119 DATE: April 17, 2012 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD P. DAOUST, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

CLAUDIA LAROUCHE Respondent ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] On November 28, 2011, Claudia Larouche ("Larouche") pleaded guilty to the following offences: [ 2 ] In file number 160-01-000626-093 : • of having, on December 5, 2008, operated a motor vehicle while her ability to do so was impaired by alcohol, thereby causing bodily harm to M.

G., an indictable offence carrying a maximum sentence of ten years' imprisonment. [ 3 ] In file number 160-01-000283-119 : • of having, on February 6, 2011, operated a motor vehicle while her ability to do so was impaired by alcohol. • of having, on that same date, failed to comply with a demand made by a peace officer. [ 4 ] The offences in file number 160-01-000283-119 are indictable offences and carry a maximum sentence of five years' imprisonment. [ 5 ] The prosecution suggests seven months' incarceration for each of the offences, to be served consecutively, for a total of fourteen months. [ 6 ] The defence suggests ninety days' detention, to be served concurrently and discontinuously. 1.

The Facts [ 7 ] At the time of the incident in 2008, Larouche was going through a difficult relationship break-up. She had an accident while driving impaired. Her friend M.G. and her two children, aged two and four at the time, were in the car with her. [ 8 ] Her friend, M.G., was injured. [ 9 ] At the time of the incident in 2011, she was awaiting trial with regard to 2008 incident. She returned to her residence after an evening during which she drank alcohol and used her car to drive the babysitter home. When she failed to make a mandatory stop, the police pulled her over.

She refused to comply with their demand to take a breathalyzer test since she had to go home because of the children. The usual symptoms of intoxication were observed.

2. The accused [ 10 ] Claudia Larouche is 27 years old. She has the equivalent of a Secondary 3 education. She lives primarily on government benefits, which she supplements by working part-time in a senior's home and as a cleaning lady. She is a hardworking single mother, who devotes most of her time to raising her two children.

Their father left the matrimonial home in 2008 and has not been in contact since. [ 11 ] She is the product of a pro-social background, although she faced some difficulties as a teenager that led to her spending some time in a youth centre. [ 12 ] Her sister and parents live in the city of Montreal. [ 13 ] She plans to train to become a wildlife officer. [ 14 ] She is not addicted to drugs or alcohol. She does not have a criminal record. 3.

Pre-sentence report [ 15 ] The probation officer notes that the accused states with certainty that she was not over the legal limit of blood alcohol concentration and that her driving was not as erratic as the police report indicated. This was verified during the guilty plea. This leads the probation officer to find that she tends to avoid responsibility and minimize her actions. Her capacity for introspection and self-analysis seems to be put to little use.

Her regrets centre primarily on herself. [ 16 ] The agent also notes that the offences were objectively and subjectively very serious, in particular because of the second incident, which took place while the accused was being prosecuted. The officer also adds that in each case, Larouche had passengers in her car, including her children during the first offence. The report also notes that the accused seems to engage in magical thinking about her ability to drive when she drinks and that she displays little empathy toward the passenger injured in 2008.

In light of all of these factors, the report concludes that there is an elevated risk of committing another offence of any kind. 4. The victim and her injuries [ 17 ] The victim of the 2008 incident was a friend of the accused. In her statement, filed as Exhibit RP-1, she states that since the accident she has experienced memory loss, difficulty getting into vehicles, and fear. [ 18 ] In the accident, she suffered whiplash, a concussion, loss of consciousness, and a few small scratches to her forehead, which led to X-rays, painkillers, and a CAT scan.

She spent one evening in the hospital. [ 19 ] Since then, she is more sensitive to temperature and claims to have neck stiffness, frequent headaches, recurring neck pain, and sometimes vertigo. 5.

The factors [ 20 ] The Court takes into account the following aggravating factors : • In the 2008 event, three passengers were on board, including her two very young children, whose vulnerability is obvious and whose safety was severely compromised • Her low degree of empathy for the victim • Her avoidance of responsibility and minimization of her actions • The long-term consequences for the victim • In the 2011 event , the fact that another case of a similar nature was pending against her • The fact that, once again, there was a passenger • No change in attitude after the 2008 charges • The elevated risk of re-offending. [ 21 ] The Court takes into account the following mitigating factors : • Her guilty plea • The fact that she was going through a difficult breakup at the time • No criminal record • Some remorse and regret • No significant delinquent values • The fact that she is hardworking and devoted primarily to raising her two children • Her young age

• The negative consequences of a long incarceration on her children. [ 22 ] Counsel for the defence has emphasized the negative consequences of a long incarceration on family life, particularly since the accused does not have the help of a spouse to raise her children and because her immediate family does not live in the area. [ 23 ] It is clearly not a determining factor, but it must be taken into consideration. [ 24 ] As the authors Parent and Desrosiers remark in their book on sentencing, [1] unlike the factors relating to the seriousness of the crime and the offender's degree of responsibility, negative consequences on the family are peripheral to sentencing and not central to judicial activity.

Their importance is therefore only relative. Although we note the lack of centrality of family considerations as opposed to the principle of proportionality of sentencing, the fact remains that courts generally prefer not to upset the family balance by punishing an accused's dependants. That being so, in some very specific circumstances, the consequences on the family may constitute a mitigating factor in sentencing. [2] 6.

The relevant objective [ 25 ] The Supreme Court has acknowledged the social evil of drunk driving. [ 26 ] In Bernshaw , [3] Cory J. writes the following at page 269: 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. [ 27 ] As Rémi Bouchard J. notes, [4] the situation has changed little since Bernshaw . Sadly, still today, drunk driving kills, causes injuries that can ruin entire lives, and represents a significant social and economic burden. [ 28 ] The sentence must have multiple objectives.

It must be a denunciation of the conduct of the impaired driver, particularly when there are passengers – especially child passengers – involved and even more so when there are similar charges already pending against the driver. [ 29 ] The sentence must be sufficient to contribute to the message that has been sent to the public for a number of years. [ 30 ] Since the accused in this case has a high risk of re-offending, the sentence must also be a deterrent to the accused and to anyone else contemplating such an offence. [ 31 ] The sentence must also promote the social reintegration of the offender and awaken in Claudia Larouche an awareness of her responsbility, in particular by recognizing the wrong she has caused to others and to society. [ 32 ] Of course, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In this case, the moral responsibility of the offender is high. [ 33 ] The sentence must take aggravating and mitigating circumstances into account, and it must not be excessive, especially since in this case the prison sentences are consecutive. [ 34 ] It must fall within the range of sentences for similar offences committed in similar circumstances. [ 35 ] The defence submits certain decisions [5] wherein offenders were sentenced to ninety days of discontinuous detention.

In these decisions, however, there were no consecutive offences as in the present case. [ 36 ] The evidence was also more favourable to the accused in those cases; in particular, the risk of re-offending was not as high. [ 37 ] When analyzing the primacy of the objectives of denunciation and deterrence, the consequences on the victim must be considered; without minimizing them, in this case they are fortunately less serious than in far too many other cases, wherein the victims and their families are forced to deal with death, paralysis, or severe handicaps. [6] [ 38 ] The sentence must be individualized and take into account all of the factors referred to above. [ 39 ] Among its submissions, the prosecution cites Lebel , in which nine months of detention were imposed in a case of impaired driving causing bodily injury. [7] [ 40 ] In that case, in which the pre-sentence report was favourable to the accused, Mr.

Lebel had hit another vehicle head on, causing serious bodily harm. Fortunately in this case, the injuries suffered by M.G. were comparatively less severe. In addition, in Lebel , the blood alcohol concentration was 171 milligrams per 100 millilitres of blood and two vehicles were hit, resulting in significant material damage.

In the cases before us, the results of the back-calculation are much lower. [ 41 ] The Court also takes into account the survey of the case law carried out by Jean-François Gosselin J. in Paquette , [8] but notes that in most of those decisions, the consequences were much more severe than in the case of M.G. [ 42 ] All things considered, an overall sentence of ten months' detention is appropriate in this case. [ 43 ] FOR THESE REASONS, THE COURT : [ 44 ] In case number 160-01-000626-093 , ORDERS a sentence of six months' detention.

[ 45 ] In case number 160-01-000283-119 , ORDERS a sentence of four months on each of the counts, to be served concurrently to each other but consecutively to the six months of detention to be served in case number 160-01-000626-093. [ 46 ] These detention periods will be followed by a one-year probation period with supervision under the following conditions: • Keep the peace and be of good behaviour • Appear before the court when required to do so by the court • Enter any program suggested by the probation officer • Continue follow-up with the CLSC for as long as deemed appropriate by the social workers. [ 47 ] PROHIBIT the accused from operating any motor vehicle in Canada for a period of two years, pursuant to s. 259(2) of the Criminal Code . __________________________________ RICHARD P.

DAOUST, J.C.Q. Mtre Amélie Gilbert For the prosecutrix Mtre Luc Tourangeau For Claudia Larouche Dates of hearing: November 28, 2011, and February 14, 2012