r v. Troy, 2020 QCCQ 5625

R. c. Cunningham 2020 QCCQ 5625 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-151193-171 DATE: October 29, 2020 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Troy CUNNINGHAM Accused REASONS FOR SENTENCE [ 1 ] Mr. Cunningham pleaded guilty to a count of impaired driving causing bodily harm and a count of leaving the scene of an accident without providing assistance to injured persons.

The charges stem from events that occurred in Montreal in the early morning hours of September 18, 2016. [ 2 ] While at the wheel of his Porsche Macan after a night out drinking with friends, Mr. Cunningham struck two young women crossing the street near the Plamondon metro station. He was driving at a high rate of speed. The impact was severe. One of the mirrors of the vehicle was found at the scene of the collision. The two victims did not have a chance to move out of the way from the oncoming vehicle. [ 3 ] Both victims were severely injured.

One of them was in a coma for a month and in rehabilitation for over a year. She is unable to go to school or work due to a brain injury. She will suffer the consequences of the accused's behavior for the rest of her life. The other victim had a concussion, a broken wrist and lacerations that left scars on her body. She was traumatized by the events. [ 4 ] Despite the severity of the collision, Mr. Cunningham left the scene without providing any assistance to the victims. He surrendered himself to the police station the next morning.

Video recordings gathered by the police confirmed that he had been drinking at a bar prior to the collision. Furthermore, it was established that he drove after being told he was too intoxicated to do so. [ 5 ] Mr. Cunningham was charged a few months after the events. In August 2019, he pleaded guilty to the two counts mentioned above. A pre-sentence report containing information on his profile was prepared by the probation office. At the sentencing hearing, the two victims (Ms. Guillermo and Ms. Liwaliw), Ms. Guillermo’s mother and Mr.

Cunningham testified about the events and the consequences. [ 6 ] The Court must now determine the just and appropriate sentence to impose on Mr. Cunningham. THE VICTIMS [ 7 ] At the time of the events, both victims were studying to obtain their high school diploma. The incident happened as they were returning home after celebrating their graduation. The collision turned their lives upside down. They suffered both physically and psychologically. Kristine Joy Guillermo [ 8 ] Ms. Guillermo was 25 years old at the time of the events. She is now 29.

She immigrated to Canada from the Philippines in 2010 to join her mother who was already in the country in order to provide a better life for her family. She obtained her high school diploma and had plans to continue her studies at the college level in order to work in child care. The collision shattered all those plans.

[ 9 ] Ms. Guillermo spent one month in a coma, two-and-a-half months at the hospital and more than one year in rehabilitation. She had severe internal lesions, multiple facial fractures and a large laceration on her abdomen. She has serious brain damage. It took her a year to recognize her own mother. Although she is now in her late twenties, she cannot live on her own. She is unable to work or attend school.

She has problems with her memory, concentration, and vision, as well as a loss of sense of taste and smell. [ 10 ] In her testimony, her mother described the numerous consequences of the collision on her own life and on her daughter’s life. She had to quit her job to become a caregiver for her daughter. Despite the terrible tragedy that changed their lives, she testified with great courage, resilience and deep empathy. Although her daughter's quality of life is forever compromised (“she lost everything”), she still found the strength to say, in this courtroom, that she forgives the accused for his actions.

Ijy Liwaliw [ 11 ] In the case of Ms. Liwaliw, she was 20 years old at the time of the events. She is now 24. As a result of the collision, she suffered a concussion, a broken wrist, and lacerations on her left temple and right calf. To this day, the scars are still visible on her body and she continues to suffer from headaches. After the events, she wore a cast for six weeks and could not go to work. [ 12 ] Ms. Liwaliw testified that she was, and still is, emotionally and psychologically affected by this traumatizing event.

She found it difficult to see her friend in a coma, and finds it very difficult to cope with the long-term serious consequences of the events on her friend. During her testimony and in her victim impact statement, she explained the anxiety, fears and sleeping issues she has experienced since the events. THE ACCUSED [ 13 ] Mr. Cunningham is 39 years old. He was almost 35 at the time of the events. He has no criminal record nor any pending charges. He has no children and has been in a relationship with a woman for almost two years.

He was born and raised in a small village in eastern Ontario in a middle-class family. Although both his parents were alcoholics, he still managed to do well in school. He studied at Concordia University where he played football with the Stingers. [ 14 ] He was drafted in 2004 by the British Columbia Lions and played in the Canadian Football League (CFL) with three different teams between 2004 and 2008. During the football off-season, he worked as a bouncer in different bars in Montreal. After his football career, he tried unsuccessfully to join the ranks of law enforcement agencies.

At the present time, he is still working security in the bar industry. [ 15 ] Mr. Cunningham testified at the sentencing hearing. He took full responsibility for his actions and did not attempt to downplay the blameworthiness of his behavior. He is devastated by the consequences of his actions on the victims and their families. He expressed sincere remorse and regrets about the events. He stated that he has not had a single drink since the day of the events. After the events, he attended AA meetings sporadically for a certain period of time. [ 16 ] Regarding his alcohol consumption, Mr.

Cunningham admitted that he had problems in this regard in his life. His level of consumption gradually increased after he retired from football and started working full-time in bars. At the time of the events, he was at a rather tumultuous period in his life. He was dating a woman with whom he has since broken up. He testified that as of 2014, he went through a depression for which he consulted a psychiatrist. [ 17 ] On pages 5 and 6, the pre-sentence report mentions: Looking at the period that preceded the offence, we find that Mr. Cunningham was in a tumultuous period in his life.

He was affected by his inability to find something other than jobs in bars. He mentioned that he was questioning himself a lot at that time and that he did not know what he wanted to accomplish in his life. He also explained that he had lost confidence in himself. At that time, Mr. Cunningham went and see a doctor because of his difficulties and a diagnosis of major depression was retained. Idle, he was drinking on a more and more regular basis. At the time, Mr. Cunningham dated a woman with whom he had frequent arguments.

It is in this context that the current offence took place. [ 18 ] As to the regrets and remorse, the report states, on page 6: Mr. Cunningham’s acknowledgment of responsibility is complete. He agrees that his behavior is reprehensible and he assumes full responsibility for it. He is disgusted by his actions during this fateful evening. He said he is devastated by the consequences for the victims and their families and feels guilt. Mr. Cunningham said that he sometimes has nightmares related to the event and mentions that he has difficulty driving a car since the accident. The regrets expressed by Mr.

Cunningham seem sincere, especially since they are accompanied by a questioning of his behavior. [ 19 ] The report states that Mr. Cunningham does not have a “criminal personality structure” and represents a “low risk” to reoffend. It also mentions that he would “undoubtedly benefit from participation in a program helping him stay abstinent and sober” . POSITION OF THE PARTIES [ 20 ] Given all the circumstances and the applicable principles, the Crown submits that a global term of imprisonment of 22 months would be a just and appropriate sentence.

In support of its submission, the Crown relies on case law [1] in which similar sentences have been imposed to similar offenders in comparable circumstances. [ 21 ] The Crown argues that 18 months of imprisonment should be imposed on the count of impaired driving causing bodily harm and four months consecutive should be imposed on the count of leaving the scene without providing assistance to injured persons. [ 22 ] T he defence submits, on the other hand, that the present case does not call for a heavy sentence. Given the personal

circumstances of the accused, including his sincere remorse and regrets and the low risk to reoffend, the defence argues that 90 days ofintermittent imprisonment in addition to a probation order with the specific condition of performing 240 hours of community servicewould sufficiently serve the interests of justice. [23] In support of its argument, the defence relies on cases[2] in which more lenient sentences have been imposed to defendants witha good profile and a favorable pre-sentence report.

The defence further submits that the accused would be willing to give awarenesslectures about the consequences of impaired driving to his alma mater. ANALYSIS [24] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: thedenunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary,rehabilitation, repair of harm done to the victims or the community, promoting a sense of responsibility in offenders andacknowledgement of the harm done. [25]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degreeof responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravatingand mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed onsimilar offenders in similar circumstances. [26] At the time of the events, the maximum sentence for the offence of impaired driving causing bodily harm was 10 years ofimprisonment.

The same maximum penalty applied to the offence of leaving the scene of an accident without providing assistance toinjured persons. [27] It must be emphasized that the determination of a fit sentence is a fact-specific exercise. The facts of the offence, itsconsequences, the circumstances of the accused and his moral blameworthiness are all factors that the Court has to consider.

In thewords of the Supreme Court: “the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond apurely mathematical calculation”[3]. [28] Denunciation and deterrence are significant factors for offences of impaired driving causing bodily harm or death. In 2009, inthe case of Brutus v.

R.[4], at paragraph 18, the Court of Appeal of Quebec held: En terminant, il y a lieu de rappeler que les tribunaux tiennent depuis longtemps des propos fort sévères concernant la commission desinfractions routières de ce genre et affirment la primauté des objectifs de dénonciation et de dissuasion pour exprimer leur volonté demarquer par des peines exemplaires la réprobation de la société à l'égard de ces crimes, particulièrement dans les cas où desconséquences graves (comme en l'espèce) en résultent pour les victimes.

La réprobation de la société peut se traduire par des peinesd'incarcération plus longues, qui ont un effet dissuasif à la fois sur le délinquant lui-même et sur tous ceux et celles qui seraient tentés del'imiter. La peine imposée en l'espèce n'est pas déraisonnable au regard de cet objectif, pas plus qu'elle ne l'est au regard de toutes lescirconstances propres à l'affaire. (My emphasis) [29] In 2015, this principle was adopted with approval by the Supreme Court in the leading case of R. v. Lacasse[5].

At paragraph73, the Court also held: [73] While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences thatmight be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harshsentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: […] dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

Thesecrimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons arethe ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C.(3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24;R. v.

Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] (My emphasis) [30] At paragraph 74, the Court added: [74] As I mentioned in the introduction, courts from various parts of the country have adhered to the principle that the objectives ofdeterrence and denunciation must be emphasized in imposing sentences for this type of offence.

For example, the Quebec Court ofAppeal made the following comments in Lépine: [Translation] Sentences imposed for crimes involving dangerous operation of a motor vehicle while under the influence of alcohol mustbe aimed at deterring the public generally from driving in that manner. This Court has therefore upheld significant custodial sentences forsuch offences: R. v. Kelly, J.E. 97-1570 (C.A.).

Very often, the objective gravity of such crimes is based more on their consequences and the extent of those consequences than onconsciousness of guilt, which is why Parliament has increased the maximum sentences on the basis of the consequences of the operationof the vehicle.

A loss of human life caused by the operation of a vehicle while impaired is a consequence that cannot be remedied, which is why it isimportant for the courts to convey a message of denunciation to those who put themselves in potentially dangerous situations, even if theoffender does not have a criminal record and did not wish to cause the tragic accident. [paras. 19-21] (My emphasis) [31] That being said, it bears repeating that proportionality must always guide judges in determining the sentence that is fair andappropriate in any given case.

The fact that denunciation and deterrence should be emphasized does not mean that the other factors mustcompletely be ignored[6]. In the end, a sentence should always be individualized, proportionate to the gravity of the offence and the

degree of responsibility of the offender, and consistent with the sentencing objectives already mentioned. [32] Many examples of sentences imposed for impaired driving causing bodily harm can be found in the jurisprudence[7]. This typeof crime normally requires the imposition of a prison sentence of several months[8], even for offenders with no previous criminalrecord[9]. Sentences imposed for this type of offence generally range from 90 days intermittent jail to two years of incarceration[10].

Moreover, it is understood that sentencing ranges “are primarily guidelines, and not hard and fast rules”[11]. [33] In the case of Mr. Cunningham, the Court takes into account the following aggravating factors: ➢ the circumstances of the offence, including the fact that he was driving at a high rate of speed; ➢ the serious physical and psychological consequences on the victims; ➢ the fact that Ms. Guillermo will suffer the consequences for the rest of her life; and ➢ the fact that Mr.

Cunningham drove his vehicle even after being told he was too intoxicated to do so. [34] With regards to mitigating factors, the Court considers: ➢ the fact that Mr. Cunningham is a first offender and has no criminal record; ➢ the sincere remorse and regrets that he expressed; ➢ the fact that he pleaded guilty and took full responsibility for his actions; ➢ the low risk that he will reoffend; and ➢ his personal circumstances, as described in the pre-sentence report, including the support he receives from some of his relatives. [35] In R. v.

Clouthier[12], the Court of Appeal of Ontario had to determine whether the offences of impaired driving causing bodilyharm and failing to stop at the scene of an accident required the imposition of consecutive sentences. At paragraphs 54 and 55, the Courtheld : [54] The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodilyharm is caused to a fellow human being, are general deterrence and denunciation: R. v. Junkert, 2010 ONCA 549, at paras. 42 and 47; R.v. Biancofiore (1997), (ON CA), 35 O.R. (3d) 782 (C.A.), at pp. 790-92.

As a general rule, custodial sentences arerequired where bodily harm is caused: Biancofiore, at p. 791. [55] The offences of dangerous or impaired operation of a motor vehicle and failing to stop at the scene of an accident protect differentsocial interests. It follows that the rule or principle of sentencing – that sentences for offences arising out of the same transaction orincident should normally be concurrent – does not necessarily apply when the offences constitute invasions of different legally protectedinterests. Subject to the principle of totality, consecutive sentences are warranted: R. v.

Gummer (1983), (ON CA), 1O.A.C. 141, at para. 13; R. v. Van Puyenbroek, 2007 ONCA 824, at para. 63. (My emphasis) [36] In the present case, after considering all the circumstances, the Court concludes that the position advanced by the defence is toolenient. On the whole of the evidence, the circumstances of the present case can be distinguished from those in which intermittent jailterms have been imposed. In light of the aggravating factors listed above, a sentence of this nature would not be proportionate to thegravity of the offences and the degree of responsibility of Mr. Cunningham.

It would not sufficiently take into account the seriousnessof the offences, their consequences on the victims, the full degree of responsibility of the accused and the sentencing objectives ofdenunciation and general deterrence. [37] Had it not been for the mitigating factors, the Court would have acceded to the position advanced by the Crown. However,having regard to the appropriate weight to be given to Mr.

Cunningham’s favorable profile, including the sincere remorse and regrets heexpressed and the fact that he took full responsibility for his actions, the Court is of the opinion that a global term of 22 months would betoo severe. [38] For all those reasons, given all the circumstances, the case law and the applicable principles, including the principle of totality,Mr.

Cunningham is hereby sentenced to a global term of imprisonment of 12 months, which will be broken down in the followingmanner: ➢ Count 5 (impaired driving causing bodily harm): 10 months of incarceration; and ➢ Count 1 (leaving the scene of an accident without providing assistance): two months consecutive. [39] The Court prohibits Mr.

Cunningham from operating a motor vehicle on any street, road highway or other public place for aperiod of 2 years commencing at the time of his release from prison. [40] Moreover, the Court directs that the accused comply with the following conditions of a probation order for a period of 18months: ➢ Keep the peace and be of good behaviour; ➢ Appear before the court when required to do so by the court; ➢ Notify the court or probation officer in advance of any change of address, and promptly notify the court or the probation officer of

any change of employment or occupation; ➢ Report to a probation officer within two working days of your release from jail and, thereafter, whenever required by the probation officer and in the manner directed by the probation officer; and ➢ Follow any treatment recommended by the probation officer. ______________________________ YVAN POULIN, J.C.Q. Me Sylvie Dulude For the prosecution Me Vincent Lefebvre For the accused Date of hearing: August 31 and September 15, 2020