2018 QCCQ 4604, 2018 QCCQ 4604

R. c. Charlebois 2018 QCCQ 4604 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU Criminal Division No. 550-01-090497-167 DATE: April 19, 2018 ______________________________________________________________________ PRESENT: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN v. FRANCOIS CHARLEBOIS Accused ______________________________________________________________________ DECISION ON SENTENCING ______________________________________________________________________ [ 1 ] On Sunday, January 10, 2016, Mr.

François Charlebois was driving a sport utility vehicle (SUV) when he violently struck a jogger who was running on the shoulder of the opposing lane. Mr. Charlebois failed to stop at the scene of the accident. He was intercepted some 9 minutes later by a police officer who noticed that the hood and front left fender of his vehicle were heavily damaged. The victim, Mr. Mark Laviolette, died from his injuries shortly thereafter. [ 2 ] Mr. Charlebois was convicted under section 252(1.3) of the Criminal Code . [ 3 ] The Court must determine the appropriate sentence in the circumstances. 1.

BACKGROUND [ 4 ] Around 9:00 a.m. on the morning of Sunday, January 10, 2016, Mr. Mark Laviolette was out for a run in the neighbourhood of Aylmer in the City of Gatineau. It was a mild and cloudy winter day, with some light drizzle. Mr. Laviolette had been running for about an hour. [1] He was heading east on the north side shoulder of Lucerne Boulevard in Gatineau, facing the westbound traffic, which was light. [ 5 ] Mr. Charlebois, was travelling east on Lucerne Boulevard aboard his Ford Explorer SUV.

He was coming from the U-Haul dealership in Aylmer, where he had just rented a truck for an acquaintance, Mathieu Martel, who was planning to move into a house that was owned in part by the offender. [ 6 ] Mr. Charlebois had been up all night doing inventory at a store he owned in Ottawa. [ 7 ] For reasons still unknown, Mr. Charlebois swerved into the opposing lane on Lucerne Boulevard, near the Pine Street intersection. The right side of his vehicle violently hit Mr. Laviolette from behind, throwing him approximately 30 meters. [2] Mr. Laviolette suffered fatal injuries. [ 8 ] Mr.

Charlebois did not stop or offer any assistance. He fled the scene aboard his vehicle and was intercepted by the police approximately 10 minutes later. [ 9 ] When intercepted, and later in the police cruiser, Mr. Charlebois lied to the police when offering an explanation for the heavy damages to the hood and front fender of his vehicle, claiming these were caused in a collision with a riser on a local highway a week earlier. [ 10 ] Debris left at the scene of impact overwhelmingly pointed to Mr. Charlebois’ vehicle as being the one involved in the fatal collision.

He admitted that his vehicle was the one that hit Mr. Laviolette, but claimed he had lent it to Mr. Martel and was not on board when the collision occurred. Mr. Charlebois accused Mr. Martel of being the driver involved in the collision with Mr. Laviolette and who failed to remain at the scene of the accident. [ 11 ] The Court did not believe Mr. Charlebois’ evidence, nor did it raise a reasonable doubt. He was convicted of failing to stop at the scene of a fatal accident pursuant to s. 252(1.3) of the Criminal Code . [ 12 ] The Court must now determine what sentence should be imposed for this offence.

2. ANALYSIS 2.1. The Offence [13] The offence of failing to stop at the scene of a fatal accident, set out under s. 252(1.3) of the Criminal Code, is punishable by amaximum sentence of imprisonment for life. There can be no doubt about the objective gravity of this offence; it is among the mostserious offences in the Criminal Code. 2.2. Crown and Defence Position on Sentencing [14] The Crown provided a table listing a number of sentences imposed by Court of Quebec judges as well as judges in otherprovinces for failing to remain at the scene of a fatal accident.

This table supports the Crown’s submission that sentences imposed forthis offence usually range between 12 to 24 months of imprisonment, absent significant mitigating or aggravating circumstances. [15] The Crown seeks a custodial sentence of 18 to 24 months, followed by a five-year prohibition to drive. [16] The defence agrees that the Crown properly articulated the range. It seeks a custodial sentence of 9 to 12 months, less enhancedcredit of 1.5:1 for pre-sentence custody. 2.3. The Victim Impact Statements [17] Mr. Laviolette’s wife, Ms. Chantal Belley, read a victim impact statement she prepared to the Court.

In this statement, sheexpresses sorrow, loss, frustration and despair. She suffers from insomnia, depression, anxiety and panic attacks. She feels guilty for nothaving been at her husband’s side at the time of the events. [18] Ms. Belley also read a statement in court prepared by her daughter, Erika, who was 8 years old at the time of the offence. She isnow 10. [19] Erika Laviolette misses her father deeply. She was very close to him. She has trouble concentrating in school. She experiencesfrustration, which she admits to taking out on her mother. She fears losing her mother and becoming orphaned.

She is sad that she willnever have the opportunity to share such life events as her graduation or her wedding with her father. 2.4. The Purpose and Principles of Sentencing [20] The purpose and principles of sentencing are set out under ss. 718, 718.1 and 718.2 of the Criminal Code. [21] In R. v. L.M., the Supreme Court of Canada stated the following on determining the appropriate sentence: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise.

The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 ,at para. 82).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and thepersonal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment ofand reparations for the harm they have done (s. 718 Cr.

C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that asentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identifiedand that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.).[3] [22] Thus, sentencing is essentially an individualized process that must take into account the mitigating and aggravating circumstancesparticular to each case. 2.5. Mitigating Factors [23] The offender was 29 years old and a business owner at the time of the events. He does not have any prior convictions. [24] Although his driving record for the last 15 years is fairly heavy (see below), he has not been convicted of any Highway Safety Actinfractions since December 2014. 2.6. Aggravating Factors 2.6.1. Driving Record [25] Mr.

Charlebois’ driving record with the Société de l’Assurance Automobile du Québec was filed under S-3. It shows that Mr.Charlebois was convicted of the following Highway Safety Act infractions between 2005 and 2013:

- 13 speeding infractions (s. 328); - 1 excessive speeding offence for driving 50 kms over the legal limit (s. 328); - 2 infractions for failing to stop at a red light (s. 359); - 3 infractions for failing to stop at a stop sign (s. 368); and - 1 infraction for using a hand-held phone while driving (s. 439.1). [ 26 ] Following the accumulation of demerit points, Mr. Charlebois’ driver’s licence was suspended for 3 months starting in November 2010, and for another 6 months starting in February 2011. 2.6.2.

Erratic Driving Causing the Fatal Collision with the Victim [ 27 ] Evidence presented at trial shows beyond a reasonable doubt that Mr. Charlebois, while driving east on Lucerne Boulevard near the Pine Street intersection, swerved into the opposing lane and violently hit Mr. Laviolette from behind as he was jogging on the shoulder of the westbound lane. Officer Jean-François Cyr, who is an expert in accident reconstruction, could not identify any cause for the accident aside from Mr. Charlebois’ driving, or any contributing factor. [ 28 ] We do not know what caused this erratic driving. Mr.

Charlebois did not show any signs of being impaired by alcohol or drugs when he was intercepted approximately 9 to 10 minutes after the hit-and-run. [ 29 ] Mr. Charlebois was not charged with any other offence. Thus, the appropriate sentence should not be similar to those imposed where the hit-and-run is accompanied by a dangerous or impaired driving offence. [ 30 ] However, the fact that Mr. Charlebois was responsible for the accident from which he fled involves greater moral culpability and constitutes an aggravating factor. [4] 2.7. Is Mr.

Charlebois’ Disbelieved Testimony at Trial an Aggravating Factor? [ 31 ] The Crown argues that the offender, during his testimony at trial, falsely accused Mathieu Martel of being responsible for the hit- and-run, and that this conduct by the offender constitutes and aggravating factor. [ 32 ] The Court respectfully disagrees. [ 33 ] In Gavin c.

R. , our Court of Appeal ruled that defence misconduct during a trial, e.g., threats made against prosecution witnesses, false testimony, or the filing of false documents, is generally not relevant to sentencing and does not constitute an aggravating circumstance. [5] [ 34 ] Our Court of Appeal reiterated this principle in Thibault c.

R. : Bien qu’il soit clairement reconnu en droit que les moyens de défense utilisés et la façon de les déployer n’ont, en règle générale, aucune incidence sur la détermination de la peine [24], il faut reconnaître que les propos du juge visaient plutôt l’argument relatif à l’hypermédiatisation du procès dont il a été traité sous la rubrique précédente. [6] (Our emphasis) [ 35 ] In R. v.

Vu , the Court of Appeal for British Columbia stated the following: It is not clear whether the trial judge concluded that what he viewed as false testimony by the appellant should be punished as an independent aggravating circumstance. If he did so, that would be an error, in my view.

To treat disbelieved testimony as an aggravating factor on sentencing would tend to dissuade innocent persons from testifying in their own defence for fear that their testimony, if disbelieved, would make matters worse for them . [7] [ 36 ] For these reasons, the Court is of the view that the offender’s disbelieved testimony at trial, in which he blamed Mathieu Martel for the offence, does not constitute an aggravating circumstance with respect to sentencing. 2.8. The Victim's Death as an Aggravating Circumstance [ 37 ] In Camiré c.

R. , our Court of Appeal said the following on the issue of whether the victim’s death may be considered as an aggravating circumstance: [ translation ] The trial judge incorrectly considered the victim's death to be an aggravating circumstance [ translation ] "even though the victim died on impact" because it is one of the essential elements of the charge. In considering the victim's death as an aggravating factor, the judge punished the appellant twice over because it had already been taken into consideration in connection with the objective gravity of the offence.

The case law accepts the victim's death as an aggravating circumstance in a hit-and-run where leaving the scene may have been one of the causes of death or where the accused could have assisted the suffering victim. This is not the situation here as the victim died on impact. There was no possibility of assisting him. This fact in no way diminishes the appellant's level of culpability with regard to the hit- and-run, but it must be taken into consideration because, in such circumstances, the hit-and-run charge inherently includes the aggravating circumstance of death in the context of its objective gravity.

It cannot be used as an aggravating circumstance as well. It is important to point out that the crime the appellant has pleaded guilty to is not that of having caused the death of the young victim,

but that of failing to stop at the scene of an accident. [8] [ 38 ] The Crown did not argue that Mr. Charlebois’ leaving the scene may have been one of the causes of death, or that he could have assisted the suffering victim. Evidence at trial showed that at least 3 witnesses where on the scene of the accident almost immediately after the collision. Yet, aside from calling 911 and protecting Mr.

Laviolette, they were not able to assist him in any significant way due to the extremely severe nature of his injuries. [ 39 ] For these reasons, the hit-and-run offence provided at section 252(1.3) inherently includes the aggravating circumstance of death, and this factor cannot be used to impose a sentence that is harsher than would otherwise have been appropriate. 3. CONCLUSION [ 40 ] Except for the fact that Mr. Charlebois does not have any criminal record, there are few mitigating factors in the circumstances. [ 41 ] Mr.

Charlebois’ driving record shows a history of bad driving, including excessive speeding and failing to stop at red lights. [ 42 ] For reasons unknown to all but himself, Mr. Charlebois drove his SUV onto the shoulder of the opposing lane, and hit Mr. Laviolette from behind as he was out for a Sunday morning run. [ 43 ] Mr. Charlebois never expressed any remorse or empathy for the victim’s family.

His fleeing the scene of the accident, as well as his unreliable testimony at trial, leave them clueless as to the cause of his erratic driving and the fatal collision that robbed them of a much-loved father and husband. [ 44 ] The fatal injuries sustained by the victim, the fact that he landed more than 30 meters from the collision site, as well as the considerable damages to the SUV driven by Mr. Charlebois speak to the force of the collision with Mr. Laviolette. There can be no doubt that Mr. Charlebois must have known that the person he struck had been severely injured.

To drive away from such an accident and leave an innocent jogger dying on the side of the road is unspeakable behaviour and callous disregard for the life of another human being. [ 45 ] The denunciatory element of an appropriate sentence in these circumstances must represent a collective statement that Mr. Charlebois’s conduct should be punished for so blatantly encroaching on our society's basic code of values. [ 46 ] In this case, the Court is satisfied that a fair and fit sentence is one of 24 months’ imprisonment, i.e. 730 days, less an enhanced credit of 1.5:1 for the 208 days Mr.

Charlebois has served in pre-sentence custody, i.e. 312 days. [ 47 ] Mr. Charlebois is thus sentenced to 418 days of imprisonment. [ 48 ] The Court also imposes a five-year driving prohibition to begin after his release from custody. THEREFORE, THE COURT : ORDERS that François Charlebois serve a term of imprisonment of 418 days; ORDERS that François Charlebois be prohibited from driving any motor vehicle for a five-year period beginning after his release from custody. __________________________________ ANOUK DESAULNIERS J.C.Q.

Mtre Stéphane Rolland For the Crown Mtre Michael Smith For the accused Dates of hearing: September 25-26,2017, October 4-5,2017, December 12-13,2017