R. v. Mosher, 2012 MBPC 24

CITATION: R. v. Mosher , 2012 MBPC 24 Date: 2012 02 13 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Neil P. Steen ) for the Crown ) and ) ) ) Phillip John Mosher ) Michael P. Cook ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 13, 2012 M. J. SMITH P.J. [ 1 ] The accused Philip Mosher plead guilty to impaired driving causing bodily harm.

The offence is strictly indictable and carries a maximum sentence of 10 years incarceration. [ 2 ] The Crown maintains a jail sentence is necessary, and in these circumstances - where the accused failed to stop at a flashing red, collided with a police cruiser injuring two officers - argues for a four month sentence. The defence asks for a fine and probation for this youthful first offender. [ 3 ] The Crown asserted that due to the amendments to the Criminal Code , which came into force December1, 2007, a conditional sentence of imprisonment is no longer available. The defence did not contest that assertion.

This offence falls within a “serious personal injury offence” as defined in s. 752 and thus has been excluded from the conditional sentence regime due to the amendment to s. 742.1. [ 4 ] The Court has the benefit of a detailed pre-sentence report (PSR) authored by Restorative Resolutions. That report recommends a community based disposition with a number of probation conditions. CIRCUMSTANCES OF THE OFFENCE [ 5 ] During the evening of April 13, 2011, the accused, Phillip Mosher, was celebrating his 20 th birthday. He drove his car to a bar on Pembina Highway where he met some friends at about 10:30 p.m.

After a few drinks there, he left his vehicle at that bar and went with his friends to another hotel where they bought some beer. All of them drank the beer while walking around in the neigbourhood. In the early morning hours of April 14, 2011 his friends drove him back to his vehicle. [ 6 ] There he made the choice to commit a criminal act by getting behind the wheel of his car after having consumed too much alcohol.

It was 3:15 a.m. when, not far from the bar and en route home, alone in his vehicle, he proceeded at a high rate of speed through the intersection of Markham Avenue and Bison Drive without stopping at the flashing red light control device. There is no explanation for his failure to stop apart from the effect of the alcohol on his driving ability.

[ 7 ] In that intersection, Mr. Mosher’s vehicle struck the front driver’s side of a Winnipeg Police Service marked cruiser car which was heading east bound through the intersection. [ 8 ] The airbags in the offender’s vehicle went off, but thankfully Mr. Mosher was not injured. The police officers were not so fortunate. As a result of the collision, both were injured. Numerous Winnipeg Police units attended to the collision scene to assist the injured and to investigate the accident. The two injured officers were transported to hospital by ambulance and treated for their injuries.

Neither was admitted to hospital. [ 9 ] Shortly after the accident, the accused was read the A.S.D. demand, complied, and registered a fail. [ 10 ] The police concluded Mr. Mosher’s ability to operate a motor vehicle was impaired. He was arrested for impaired driving and provided a sample of his breath pursuant to a demand by police. He provided two samples at 4:40 a.m. and 5:01 a.m. The results were a blood alcohol reading of 130 milligrams of alcohol in 100 milliliters of blood. [ 11 ] Mr.

Mosher was co-operative with the police in all respects and was released on a promise to appear early that morning. [ 12 ] Constable Laurendeau received a blow to the head, soreness to the head and soreness to the neck and back. He had headaches for which he took Tylenol 3’s and ultimately missed a week of work. Constable Adam received soft tissue damage to the left shoulder and the left side of his neck. Constable Adam contacted the probation officer writing the PSR and advised that he and his partner were lucky to have walked away from the accident, indicating that it could have been worse.

Constable Adam reported having suffered a separated shoulder as a result of the accident. He missed three days of work. He also attended physiotherapy for approximately one month. He advised that he still has difficulty with his shoulder, stating that he cannot sleep on it for any length of time. [ 13 ] He also mentioned that when he attended back to work, he had pain in his left foot and discovered he had a stress fracture on his left foot but was uncertain as to whether or not it was the accident that caused that fracture.

Because of that uncertainty, I do not take the foot injury into account. [ 14 ] The claim for damage to the car driven by Mr. Mosher and paid by Manitoba Public Insurance Corporation (MPIC) was $7,526. CIRCUMSTANCES OF OFFENDER [ 15 ] As noted, a detailed PSR was prepared by Restorative Resolutions. The author noted that Mr. Mosher was cooperative and diligent in the preparation of the PSR and open and honest about the incident. [ 16 ] Mr. Mosher is 20 years old. He is a first time offender with no previous record of any sort, adult or youth.

The probation officer found him to be extremely remorseful and quite aware of how he had created victims as a result of his actions. [ 17 ] He comes from an excellent family background. Although his parents separated when he was quite young, he has maintained a good relationship with both parents and with his step-father. All have taken major roles in his upbringing. [ 18 ] After the separation, he lived with his mother (who has been coping with MS for many years) until he graduated from high school, spending many weekends with his father during these formative years. He currently lives with his father.

He sees his mother every Sunday for dinner. [ 19 ] Mr. Mosher was described as “a good kid who did not cause the family any grief” until the present matters. Drugs and alcohol have never been an issue for Mr. Mosher according to his family. [ 20 ] Mr. Mosher graduated from high school in 2009. There were never any problems with school. He was a well behaved and academically good student. He is currently in his second year at the University of Winnipeg in the Faculty of Business and Economics. [ 21 ] In addition to his studies, he is employed on a casual basis as his father’s assistant.

His father is a real estate agent. Young Mr. Mosher works in show homes assisting his father and creating feature sheets, working approximately six days a week. He does not currently receive a wage from his father. In lieu, his father is supporting him through university and providing housing.

Most of his time is spent working for his father or with his friends who attend university and work. [ 22 ] Prior to working for his father, he was employed as a cook at Earl’s restaurant from July 2008 through to February 2011, both full time and on a casual basis. [ 23 ] He states he has never used drugs, however admits he began drinking alcohol at the age of 16, drinking beer, albeit not that often. He considers his past alcohol use as very moderate. As a result of his involvement in this matter, he no longer drinks alcohol. [ 24 ] A friend of his interviewed by Restorative Resolutions indicates that Mr.

Mosher liked to party on the weekends and was a social drinker who liked to be around people and have fun. He has noted a change in that Mr. Mosher continues to go out with friends and have fun but no longer drinks any alcohol. [ 25 ] Mr. Mosher attended at the Addictions Foundation of Manitoba for an assessment. The outcome was that Mr. Mosher ought to attend the one day impaired driving workshop offered at the Addictions Foundation of Manitoba and that was completed on October 22, 2011. [ 26 ] The family members are very disappointed with their son’s behavior leading to the charge.

On the night in question his mother recalls talking with her son about drinking and driving and reminding him that if he ever needed a ride to call her to make sure that he will get home safely. I have no doubt as with all responsible families, this was not the first time that subject had been discussed. RESTORATIVE RESOLUTIONS REPORT

[27] Restorative Resolutions proposed a community based plan involving completion of counseling, treatment or other programs,completing 150 hours of community service work, observing a curfew and abstaining from alcohol among others. [28] The probation officer explained the rationale: Mr. Mosher comes before the court as a first time offender. He understands the seriousness of his current offence and is acceptingresponsibility for his actions. Mr. Mosher is a hardworking young man who has a job and is attending University to further hiseducation. He also has a supportive family.

He is a productive member of society and is a highly motivated individual. [29] The probation officer did a risk assessment and indicated the accused was a very low risk to reoffend with no significantcriminogenic risk factors identified. [30] The PSR suggested that community service work could encompass a referral to MPIC where Mr. Mosher could be considered acandidate for school presentations on drinking and driving.

SUBMISSIONS OF PARTIES [31] The Crown acknowledged that the lack of record, the positive PSR and the fact that the accused had already attended to theAddictions Foundation of Manitoba were mitigating and favourable factors for the accused. However, the Crown submitted that specificdeterrence was an important feature of sentencing in these cases and that general deterrence was the paramount consideration especiallyin cases involving bodily harm. [32] The Crown relied on R. v. MacDonald (1999), (MB CA), 139 C.C.C. (3d) 524 (Man.

C.A.) for theproposition that incarceration for a period of three to 18 months is the appropriate sentence for cases of impaired driving causing bodilyharm. [33] The Crown argued that the fact that the accident involved a police cruiser should be seen as an aggravating factor as it deprivedthe community of the police officers for a time. The police officers who are in the community are there to protect all of us. [34] The Crown also observed that there was a significant amount of alcohol consumed and the injuries, while less serious than insome cases, were not trifling.

One police officer is still feeling the effects. [35] The Crown submitted that four months incarceration is required. DEFENCE POSITION [36] The defence asserted that the appropriate disposition should be a fine and three years of probation, laying emphasis on theyouth of the offender, the lack of prior record, the fact that he is engaged in pro-social activities as a student at the University plusworking part time, and his remorse.

Essentially, the defence emphasized the same factors the author of the PSR had noted inrecommending a community based disposition. (See para. 28) [37] Defence counsel took issue with the Crown’s suggestion that the fact that a police cruiser was hit and police officers wereinjured ought to be considered an aggravating circumstance elevating the sentence. [38] Defence counsel observed that not only had Mr. Mosher gone to the AFM on his own; he had in fact made the decision to quitdrinking.

He observed that the accused wanted to apologise to the officers, and that the incident is clearly out of character. [39] Counsel suggested that general deterrence could be met by imposing both a fine and probation with stringent conditions,observing that probation would also promote rehabilitation. He suggested it was not necessary to impose a sentence that wouldeffectively result in this young man’s losing a year of university in order to satisfy goals of general deterrence. [40] Defence also relied on the recent decision in R. v.

Audy, 2010 MBPC 55 in which my colleague, Judge Slough, imposed a fineand probation following a plea of guilty to impaired driving causing bodily harm where the injuries were much more significant thanthose in this case. DISCUSSION [41] The Criminal Code declares in s. 718 that the fundamental purpose of sentencing is to contribute, along with crime preventioninitiatives, to respect for the law and the maintenance of a just peaceful and safe society by imposing sanctions that have one or more of anumber of objectives outlined in the Code.

Denunciation, deterrence, rehabilitation, and restorative objectives are among those outlined. [42] Society is not safe when impaired drivers are on the road. [43] The campaign against drinking and driving is the subject of many high profile crime prevention activities.

In schools, ontelevision and radio, and through other media the public is frequently reminded of the importance of not drinking and driving so that ourstreets can be safe, and of the tragic and terrible consequences that can result when that message is ignored. [44] In looking at sanctions against those who choose to risk public safety and commit criminal acts by drinking to excess anddriving, the main objectives of sentencing are denunciation and deterrence.

That is, to express the community’s abhorrence for theactivity, and to impose a sentence that will stop the offender before the court and other similar drivers from repeating the crime. It is alsoimportant to keep rehabilitation in mind, as the vast majority of drinking drivers will be given a further opportunity to drive again. Ifpossible a sentence should have a measure of restorative justice, to provide reparation for the harm done.

[45] While stepping up penalties over the years, Parliament has not yet imposed mandatory jail sentences for all who drink to excessand drive impaired or over the legal limit. For a first offence of impaired driving or being over the legal limit simpliciter (absent bodilyharm or worse) the minimum fine at present is $1000, and the customary sentence is a fine, albeit normally (and often significantly) overthe minimum, but jail is rarely asked for or imposed. [46] Every driver who makes a decision to drive while impaired or over the legal limit places the public safety at risk of bodily harmor death.

It is often only a matter of luck that the terrible risk does not materialize into actual harm. [47] In cases such as this, where bodily harm actually results from the same morally risky behavior, Parliament through its increasedmaximums and choice that such offences are solely indictable proceedings, signals that punishment must be more significant than incases where bodily harm was not caused by the driving. [48] Decisions from higher courts as well reinforce this approach. Normally, a jail sentence is imposed where drunk driving resultsin bodily harm. The Crown relied on R. v.

McDonald, supra, a decision of the Manitoba Court of Appeal that sets a guideline of threemonths to 18 months incarceration as an appropriate range of sentence for this offence. [49] In that case, the accused ran a red light while impaired, striking a Transit bus and severely injuring the driver. The offender’sblood alcohol level at the time was 120 milligrams.

He was convicted of impaired driving causing bodily harm and sentenced to twoyears less a day to be served in the community subject to stringent conditions. (At the time of that decision, a conditional sentence wasavailable for these types of offences.) He appealed from the sentence imposed. [50] The Court of Appeal held that the trial judge had erred in making a comparison to a case involving impaired driving causingdeath and accordingly reduced the sentence from 18 months to 15 months (to be served conditionally).

In the course of the decisionhowever, the Court observed that it had reviewed a large number of cases on sentencing for impaired driving cause bodily harm decidedacross Canada in the last 10 years, with a particular emphasis on those decided in the last year prior to the hearing. Twaddle J.A.observed for the majority: 13 ...This review shows that the prison term imposed has usually been in the range of 3 to 18 months.

The exceptions which do existinvolve cases where the accused was convicted at the same time of another offence such as driving while disqualified or where theaccused has a long list of prior related convictions. [51] The reference to “exceptions” was to cases where sentences had exceeded 18 months.

The Appeal Court identified a trendtowards more severe sentences and observed that so long as the offence remains as prevalent as it is, that trend should continue. [52] It is clear that any sentencing range is merely a guideline and if appropriate and consistent with the principles of sentencing,sentences may be lesser than the bottom of the suggested range or higher than the top of the suggested range. [53] The Crown also referred to R. v. Doerksen, [1989] M.J. No. 92. This is a case involving a fatality, although a Crown took aplea of guilty to the less serious offence of impaired driving simpliciter.

There was a plea bargain and defence conceded that the courtshould take into account the facts of the fatality. The judge imposed 12 months imprisonment. [54] On appeal, the sentence of imprisonment was reduced to four months. The Court of Appeal expressed considerable discomfortwith the nature of the plea bargain.

It held the fact that a fatality occurred should not as a rule be taken into account when the Crowndecides to accept the plea to impaired driving simpliciter. [55] The decision is of greater relevance for the general statements the Court makes concerning the need for deterrent sentences incases of impaired driving.

At para. 19 of the Doerksen decision the Manitoba Court of Appeal noted that it is often individuals with norecord and good backgrounds who commit these offences: The need for deterrent sentences in cases of impaired driving was expressed eloquently by MacKinnon, A.C.J.O., delivering thejudgment of the Ontario Court of Appeal, in R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145. He said (at p. 150): Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they maymeet with a driver whose faculties are impaired by alcohol.

It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone anylength towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught.

General deterrence in these cases should be the predominant concern, and such deterrence isnot realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving. [56] The Court of Appeal went on to approve certain additional comments made in R. v. McVeigh, supra. Although McVeigh was acase of impaired driving causing death by criminal negligence, that Court had made it clear that it was not confining its remarks to suchcases, or even those where injury had occurred.

Again, at para. 20 in Doerksen, Justice Twaddle approved the following passage fromthe judgement of MacKinnon A.C.J.O. in Mcveigh at page 150: In my view, the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed fordrinking and driving are great and increasing sentences for offences at the 'lower end' would emphasize that it is the conduct of theaccused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilitiesof serious and tragic results from such driving are reduced.

No one takes to the road after drinking with the thought that someone may bekilled as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the

wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer. [ 57 ] In Doerkson, Justice Twaddle went on to observe that it was in 1985 that the Criminal Code was amended to separate the offence of impaired driving into three different categories, impaired driving simpliciter , impaired driving causing bodily harm and impaired driving causing death.

At that time, the maximum penalties were increased to five years in the case of impaired driving simpliciter and the maximums of ten years for bodily harm and 14 years for death were imposed. [ 58 ] Having reviewed the Criminal Code amendments and judicial reaction to them, Twaddle J.A. concluded: … I am of the view that only in exceptional circumstances should any offender be spared the ignominy of a prison cell where his impaired driving caused bodily harm or death. [ 59 ] In assessing moral culpability, the court should consider the blood alcohol level, the nature of the journey undertaken by the driver – for example, whether it is on a major highway at highway speed and is more likely to cause bodily harm or death if a mistake is made. [ 60 ] More recently in R. v.

Ruizfuentes , 2010 MBCA 90 , the Manitoba Court of Appeal declared that the range of sentences for impaired driving causing death for offenders who have no prior convictions for drinking and driving or other serious personal injury offences should be increased to a range of two to five years; for those who are second or subsequent offenders, the range moves upwards to four to eight.

For first offenders involving impaired driving causing death, the range of driving prohibition is three to 10 years and for second or subsequent offenders from 10 years to a lifetime ban. [ 61 ] In a discussion which preceded the Court’s conclusion that the range must be increased, Justice Chartier referred with approval to some comments by O’Connor A.C.J.O., in R. v. Junkert , 2010 ONCA 549 , again, a case involving impaired driving cause death.

However, O’Connor A.C.J.O. observed at paragraph 46: 46 …In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences.

The reasons for this trend can be attributed to society's abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk. 47 The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired. [ 62 ] After this case was argued, the Manitoba Court of Appeal released a decision in R. v.

Henderson, 2012 MBCA 9 , upholding a non-jail sentence on a driver who, on the way home after drinking at a bar, drove into the back of a street-cleaning truck, pinning a City employee between her car and the truck. The victim suffered horrendous injuries to his legs, from which he would never recover. The sentencing judge held that the offender had established “exceptional circumstances” justifying a non-jail sentence.

At the hearing, there was uncontested medical evidence that the accused never drank or gambled until being prescribed with a drug for a medical condition; that studies substantiated that alarming impulse control side effects from the medication had been documented, including gambling and excessive alcohol consumption.

The expert opinion was that the drug underlay the alcohol use, gambling, and the poor decision to drive while intoxicated. [ 63 ] The Court of Appeal, at paragraph 40, noted its agreement with the Crown “that normally the sentence imposed for impaired driving causing bodily harm, even for a first offender, is a jail sentence.” The Court specifically approved both Doerksen and MacDonald, the cases relied on by the Crown in this case. The numerous Criminal Code amendments since 1985, the Court held, show Parliament’s intention to deter and denounce drinking and driving offences.

Again, as they had done in Doerksen, supra, the Manitoba Appeal Court referred with approval to the comments in Mcveigh, supra, quoted at paragraph 51 above, and as well to the decision in Doerksen, supra for the proposition that only in exceptional cases should an offender be spared jail where the impaired driving caused bodily harm or death. (Para. 42, Henderson ) [ 64 ] Thus the Manitoba Court of Appeal very recently made it clear that the dicta of both Macdonald, supra, and Doerksen, supra, the older cases cited to me by the Crown in this case, are authoritative today.

In addition, the Court in Henderson expressly approved a 1990 decision which held a non- jail sentence for impaired driving causing bodily harm to be unfit, while at the same time acknowledging that where there were exceptional circumstances, such a sentence could be justified. (See R. v. Gutoski (1990), 63 Man. R. 2 d(246) C.A.) [ 65 ] In Gutoski, the 44 year old driver with no previous record misjudged the angle of a turn and lost control of his vehicle, seriously injuring two young children.

Following his conviction for impaired driving causing bodily harm, the judge sentenced him to a fine of $1000 (a large fine at that time) and a year’s probation. There was no excessive speed or driving fault other than the misjudgement of the turn. The breathalyzer reading was 140. After the accident the accused stopped drinking and underwent rehabilitation treatment. There were mitigating circumstances in that the driver, who had mental challenges of his own, was the sole caregiver for his 83 year old father and was under stress. He drank after an argument with his father. He was remorseful.

On appeal, the Court held there were no exceptional circumstances and replaced the fine and probation with six months incarceration. [ 66 ] In Henderson , Hamilton J. A. who authored the judgment for the Court referred to Gutoski with approval at para. 46 and 47. She observed: 46 . . . Parliament has not imposed a minimum sentence for impaired driving causing bodily injury. The law continues to be as stated by Twaddle J.A. in Gutoski .

That is, a sentence for impaired driving causing bodily harm will be a jail sentence unless there are exceptional circumstances that permit the judge to impose a non-incarceratory sentence. Stating this principle is easier than ascertaining what are exceptional circumstances.

47 We know from Gutoski that a good record and remorse do not amount to exceptional circumstances.

We also know from Gutoski that an argument with a family member can be an exceptional circumstance that causes someone to drink, but it does not equate to exceptional circumstances for driving after drinking. (emphasis mine) and see also para. 59: The case law is clear that, for the offence of impaired driving causing bodily harm, the good character and remorse of an offender are mitigating, but they are not “exceptional circumstances.” The sentencing judge understood that. [ 67 ] Thus in Henderson , it was clearly not the fact that she was, like many people convicted of impaired driving, a sympathetic first offender unlikely to reoffend, who was genuinely remorseful and for whom the offence was out of character that constituted exceptional circumstances. [ 68 ] Instead, Hamilton J.A. noted that the trial judge had concluded on the medical evidence before her that the side effects of the drug prescribed for the offender led her to drink compulsively and affected her judgment, including her decision to drive in an intoxicated state.

It was this finding that was critical to the Appeal Court’s acceptance that there were exceptional circumstances meriting a non-jail sentence. These circumstances, the Court noted, significantly affected the level of the accused’s moral blameworthiness for the offence. [ 69 ] The Court did not attempt to define exceptional circumstances exhaustively, as the finding that they were present in that case was sufficient. The Appeal Court acknowledged there is little guidance in the case law as to what constitutes exceptional circumstances, observing at para. 56: In R. v.

Steeves (C.E.) et al. , 2005 NBCA 85 , 288 N.B.R. (2d) 1 , the New Brunswick Court of Appeal wrote about exceptional circumstances in the context of sentencing for theft committed by a person in a position of trust, an offence for which general deterrence is also a paramount sentencing principle (at para. 1): It has long been the view of this Court and other Canadian appellate courts that the need for general deterrence must be met when sentencing an employee who stole from his or her employer and thereby abused a position of trust.

Absent “exceptional circumstances”, a fit sentence for an offence of this nature is one that features incarceration. While a finding of “exceptional circumstances” typically rests upon proof of mitigating factors that tend to lessen guilt or the seeming seriousness of the offence charged, the concept is elastic in meaning and courts have wisely refrained from attempting to precisely delineate its reach . [emphasis added] [ 70 ] As noted above, the defence relied on R. v. Audy , 2011 MBPC 55 .

In that case the accused was a 29 year old First Nations woman who had grown up in a small, remote, impoverished community with high rates of unemployment and crime. She had two small children and subsisted on Band assistance. She had no previous criminal record and entered a guilty plea at an early stage in the proceedings to impaired driving cause bodily harm. After consuming beer, vodka and marijuana, the accused drove and was involved in a single vehicle rollover. Four people had been in the car, one of them was thrown from the vehicle. There were serious injuries.

She was fined $1000 and placed on probation, the type of disposition sought by defence counsel in this case. [ 71 ] I note that in R. v. Audy , the sentencing judge imposed very onerous terms in the 18 month probation order, including nine months of house arrest. [ 72 ] In that case, the Court also had the benefit of an extensive Gladue Report that clearly brought into play s. 718.2(

e) of the Code . In addition, the Court observed that given where she resided and that she was female, combined with her financial circumstances, an intermittent sentence was virtually unavailable to her. [ 73 ] There were clearly a set of unique or exceptional factors which justified a departure from the customary jail sentence. The Crown did not appeal the disposition imposed by my colleague in those circumstances. [ 74 ] Although Audy stands as an example of a case where a jail sentence was not imposed, I do not find it of much assistance in the very different fact scenario in this case.

I acknowledge there are other cases where jail sentences have not been imposed for impaired driving causing bodily harm, if there are exceptional circumstances: see for example R. v. Riddell, 2011 SKQB 378 . CONCLUSION [ 75 ] After analysing the cases and considering the circumstances of this offence and offender, I cannot find exceptional circumstances that would allow me to impose other than incarceratory sentence on this young man.

Like many other such drivers who commit these offences, he is of otherwise good character, he is responsible; he is remorseful; he is accepting responsibility and has insight into the harm his behaviour caused. He has addressed issues related to alcohol by attending the AFM and he has gone so far as to make the decision to quit drinking altogether and put that into practice. All of these are mitigating facts that should and will have an effect on the duration of the sentence. [ 76 ] Nonetheless he was a potential killer on the road when he made the decision to drive home, after consuming too much alcohol.

The collision was not the result of any unanticipated situation on the road. He simply failed to stop at the flashing red light. He was travelling too fast. He is likely fortunate the vehicle he hit was a police cruiser, which, for obvious reasons is a strong and solidly built car. Had some other lighter, older car been hit the injuries could have been catastrophic for the occupants. Thankfully the injuries to the officers were relatively minor. One officer has completely recovered.

The other has significantly recovered and hopefully through physiotherapy will fully recover. [ 77 ] Given the above case law, in Manitoba sentences for this offence normally range between three and 18 months incarceration. The Crown, in proposing a four month sentence, appeared to acknowledge that a sentence at the low end of the actual range was appropriate, recognizing the various mitigating circumstances. [ 78 ] I do not accept the Crown argument that hitting a police cruiser and causing harm to the officers is more aggravating than

hitting another vehicle and causing harm to civilians. That appeared to me to be the main reason the Crown sought a four month, ratherthan a three month sentence. [79] It was mere happenstance that it was a police vehicle in the intersection, as opposed to no vehicle or another vehicle.

While thefact that the officers were taken from their duties that night is regrettable, and their important role in the community is indisputable, thefact that a police vehicle was hit does not elevate the moral blameworthiness of the accused justifying an increase in an otherwiseappropriate jail sentence. [80] I have outlined a number of mitigating features already. In addition, while not mitigating, I note that the breathalyser reading,while well over the legal limit, was not excessively high and the injuries, while clearly not trifling, were much less serious than in manycases.

This is a case where the lowest end of the normal range can be considered. [81] Individual deterrence has been met by the fact of having been charged and undergoing the court processes, and the othercollateral consequences. But in this case, it is clear to me that jail is required for general deterrence. [82] In Ruizfuentes, supra, Chartier J.A., authoring the judgment of the court, took pains to again emphasize that in establishingranges, the court is setting out guidelines that are not conclusive of sentences. Of course, these ranges are but guidelines and, as was recently explained in R. v.

McCowan (K.J.), 2010 MBCA 45, 251 Man.R. (2d) 295by Steel J.A. (at para. 11): .... Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for theimposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948. But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence inany given case. The Supreme Court of Canada recently confirmed this basic principle in R. v.

Nasogaluak, 2010 SCC 6, [[2010] 1 S.C.R.206] 251 C.C.C. (3d) 293, when it repeated that a judge can order a sentence outside of a guideline range so long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. See also, R. v.

Sinclair (W.J.), 2009 MBCA 91, 245 Man.R. (2d) 237 at para. 6. [83] I take from this passage that if there is a good reason to do so, consistent with the principles and objectives of sentencing, I canconsider a jail sentence somewhat less than the bottom of the range. [84] One mitigating fact that is particularly important is the youth of this offender. The courts and the community recognize thatyoung persons, because of their lack of maturity and life experience, often act foolishly and some commit crimes.

While as young adultsthey cannot escape punishment for crimes they commit, their moral blameworthiness is somewhat diminished compared to mature adultswho commit crimes by drinking and driving. [85] A first sentence of imprisonment, especially for a youthful offender, should be the minimum necessary to respond to thesentencing objectives at play. (See, for example, R. v. McCormick, (MB CA), [1979] 4 W.W.R. 453 (Man.

C.A.)) [86] While a sentence of three months would be a fit disposition, I have concluded that the objective of general deterrence can beadequately and effectively met by a sentence of 45 days imprisonment, combined with a probationary condition of community servicethat will require this young man to speak directly to other young drivers about the dangers of drinking and driving, along with arestitution order. [87] The fact of incarceration for any period of time is significant. The 45 day prison sentence underlines that Mr.

Mosher hasviolated community values and is deserving of being deprived of liberty and of being ostracized and sent to a prison environment. He isnot spared the disgrace of a jail sentence. [88] Given the duration of the sentence, and the fact that his university term is unfinished, I will permit Mr. Mosher to serve itintermittently on the usual probation conditions, should he wish to do so. [89] The probation conditions and the restitution order provide restorative elements to the sentence, an objective that should be partof sentencing where possible.

Hopefully the tailored community service will effectively promote general deterrence by direct contactwith young drivers. [90] It is the prospect of clanging prison gates closing behind them, along with the other significant consequences of this crime –loss of driving privileges for an extended time, a large restitution order, and the community service requirement - that ought to deterother youth and young adults similar to Mr. Mosher in this case.

I have not lost sight of the paramount importance of general deterrenceand denunciation in fashioning this sentence. [91] There will be a period of 12 months probation to follow the jail sentence. In addition, I prohibit Mr. Mosher from drivinganywhere in Canada for 18 months. I also impose a free standing restitution order of $7,526 in favour of MPIC. [92] The probation is to be supervised by Restorative Resolutions. During this time, Mr. Mosher will be subject to all the statutoryconditions, including keeping the peace and being of good behaviour.

In addition: ▪ He will report within 48 hours of the conclusion of his jail sentence to Restorative Resolutions, provide current contact

information, and after that, report when and how he is directed. ▪ Within the first two weeks of his probationary period, he must contact MPIC.

He must arrange to meet with MPIC officials and with their assistance develop a presentation on drinking and driving of 40 – 60 minutes in duration, including talking about his own offending behaviour and consequences, which presentation is satisfactory to his probation officer or MPIC. ▪ He must arrange to make not less than 10 such presentations during the term of his probationary period to schools, educational institutions or community groups, the presentation arrangements to be approved by his probation officer, and he must report back to his probation officer on the outcome of those sessions. ▪ If desired by Constable Laurendeau and Constable Adam, he shall meet with them in person at a meeting to be arranged by his probation officer to deliver his apology and hear the effect of the crime on them.

In any case, he shall provide a letter of apology satisfactory to his probation officer within the first 30 days of his probationary period. [ 93 ] C osts and surcharges of $52 are required and payable within 90 days. _________________________ MARVA J. SMITH P.J.