R. v. Wichart, 2022 MBPC 58

CITATION: R. v. Wichart, 2022 MBPC 58 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) D. Burland ) for the Crown - and – ) ) Taylor Wichart ) K. Jones ) for the Accused ) ) Judgment delivered: ) December 12, 2022 Pollack S.P.J. [ 1 ] This is an “I told you so” drunk driver case. It invokes a public service announcement scenario in which an impaired driver is staring in disbelief at their wrecked car or is explaining to a loved one on the telephone that they have been arrested for drinking and driving.

Taylor Wichart is an offender who admits causing bodily harm when driving with an alcohol-impaired ability that caused her boyfriend to require physical and mental health assistance for the rest of his life. [ 2 ] On March 9 2021, Taylor Wichart was celebrating her twenty-first birthday with friends. She and Ryland Hope (“Ryland”) were at the home of her friend Amy Glougie-Verbong (“Amy”). Also present was Amy’s boyfriend, Bryce Booth (“Bryce”). Amy obtained a bottle of gin, they played drinking games and, according to Bryce, Ms.

Wichart told them to watch what she was drinking, as she might have to drive later. [ 3 ] After midnight Ms. Wichart, Ryland and Bryce left in Ms. Wichart’s vehicle. Ryland, who was intoxicated, sat in the front seat without a seatbelt. Bryce sat in the rear seat, also unbuckled. [ 4 ] Just after 1:00 a.m., Ms. Wichart was driving on a residential street that has a curve to the left. As the vehicle approached that curve she was speeding at about 76 kilometers per hour on a 50 kilometers per hour undivided roadway.

Road conditions were good as the vehicle failed to make the curve, the driver took no steps to brake and as the car collided with a tree. It is admitted that there was “catastrophic damage to the front passenger side of the vehicle” and that “the front passenger side’s suspension was sheared off the frame and the ‘A’ pillar and firewall intruded into the passenger compartment”. [ 5 ] Ryland was trapped inside the vehicle. A witness called 911 for help and Ryland was ultimately taken to the Health Sciences Center in critical condition.

His three-month stay there was followed by nine days in Concordia Hospital and then three months in the renowned Neurology Rehabilitation Acquired Brain Injury Unit at Riverview Health Center. [ 6 ] Ryland will have on-going physical, cognitive, memory and behavioral issues. He could not speak initially after coming out of a coma and, while he can walk with assistance, he usually uses a wheelchair.

He will need home care for personal tasks indefinitely and has no employment prospects. [ 7 ] In conversations with the prosecutor, Ryland declined to participate in the sentencing process and his parents have indicated clearly that they bear no ill will toward Ms. Wichart. In the circumstances, given the relationship of the victim and the offender and the fact that the families know each other, the silence of Ryland’s family is to be respected.

The outcome for Ryland must, however, be reflected in his then girlfriend’s sentence. [ 8 ] Given the crime that was committed, this offender could not express a better attitude toward her offending. By her conduct in showing concern for her victim and his family, as well as her words to a Probation Officer and the Court, she has demonstrated that her remorse is complete. Shortly after the offence, she sought continuing education related to addiction.

She is quite prepared to serve her sentence in jail and I do not find in the pre-sentence facts so much as a hint of self-pity or attempt at sharing blameworthiness. [ 9 ] This offender has both a history of employment and future prospects. She also has the benefit of strong family support. Her mother and grandmother are watching these proceedings and I have a letter from her mother, with whom she lives, offering strong support for the conditional sentence order sought by the defence. [ 10 ] Upon

summary conviction, the prosecution seek a sentence of eighteen months. They direct me to some of the comments of the panel in R. v. Smoke, 2014 MBCA 91 about the need for higher sentences for those who injure by driving with impaired ability; the reasons why are obvious in the case law and public dialogue. R. v. Smoke was an indictable proceeding that also concerned causing death. After considering the appeal of the sentence in that count, Beard JA wrote this on behalf of the Manitoba Court of Appeal panel:

(51) It is reasonable to assume that the range of sentence for impaired driving causing bodily harm should undergo a similar

increase, putting the range at 6 to 24 months. [ 11 ] The defence seek a conditional sentence of up to two years, citing a case in which the Supreme Court of Canada reversed a Manitoba Court of Appeal decision to impose a conditional sentence for dangerous driving causing death: R. v. Proulx , 2000 SCC 5 . In allowing that appeal, the Supreme Court instructed judges to give serious consideration to a conditional sentence, even in cases of serious harm done. The Chief Justice reminded sentencing judges that, because conditional sentences limit the offender’s freedom, they are a form of punishment by imprisonment. [ 12 ] The fundamental Criminal Code sentencing principle (in

section 718.1 ) instructs me to determine the proportionality of the gravity of the bodily harm offence and Ms. Wichart’s background and personal circumstances. In determining the appropriate sentence, clause 718.2(

e) requires me to consider all reasonable available sanctions. Therefore, notwithstanding the debate in the courtroom over whether imprisonment should be conditional, probation as a sentencing alternative also requires a look. [ 13 ] In my opinion, the most aggravating factor in this case is the criminal decision by the offender to drive. Her driving privileges were subject to the legal requirement that, as a driver, she maintain a blood/alcohol concentration of zero milligrams/per cent.

Therefore, regardless of how much liquor she consumed, her first swallow disqualified her from driving that night and her moral culpability is to be measured from that point because that was when she raised the topic of driving later. [ 14 ] A properly admissible blood analysis demonstrated a concentration of about 150 milligrams/per cent, more than the 120 milligrams/per cent that engages Criminal Code clause 320.22 (

e) to label that reading as an aggravating factor. [ 15 ] Some personal history is not unrelated to her criminal decision to drink and drive. As a teenager, this offender used marihuana and alcohol to excess. It led to a stay in the Compass In-House Youth Program of the Addictions Foundation of Manitoba (“AFM”). She explained to the pre-sentence report writer that her stay at that time was not a successful answer to her addiction. [ 16 ] After the events of March 9, 2021 Ms. Wichart attended an AFM in-house program and was directed to a group program, although the latter conflicted with her school hours.

And she still drinks socially, indicating that once or twice a month she will do so at a friend’s home but not at a drinking establishment. This is a risk factor for future offending for someone who has the experience of learning how difficult addiction recovery is and how recovery is an ongoing process. [ 17 ] The most important mitigating factor is the expression of guilt from an offender with no criminal record, indeed no highway traffic record. As the pre-sentence report writer concluded: Ms. Wichart accepts responsibility for her actions and is prepared to accept the sentence deemed appropriate.

And I would add that her guilty plea is timely and without undue delay. [ 18 ] The unanimous decision in Proulx was to restore a jail sentence of eighteen months imposed by the sentencing judge, which the Manitoba Court of Appeal had changed to a conditional sentence. In doing so, the Chief Justice of Canada wrote this in paragraph 129: …I am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender. I point out that the offences here were very serious, and that they had resulted in a death and in severe bodily harm.

Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families.

Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties… ( emphasis added ) The judgement continued with reference to some features similar to the case before me: (130) “I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving. In fact, were I a trial Judge, I might have found that a conditional sentence would have been appropriate in this case.

The Respondent is still very young, he had no prior record and no convictions since the accident, he seems completely rehabilitated, he wants to go back to school, he has already suffered a lot by causing the death of a friend and was himself in a coma for some time.

To make sure that the objectives of denunciation and general deterrence would have been sufficiently addressed, I might have imposed conditions such as house arrest and a community service order requiring the offender to speak to designated groups about the consequences of dangerous driving…” [ 19 ] It is my opinion that sentencing in this case must amplify “I told you so” if it is to have any effect on otherwise “law-abiding persons, with good employment records and families” who gamble whether their drinking will make their vehicles wound, maim or disfigure people.

In my opinion, this case requires a sentence of imprisonment and certainly, the maximum sentence upon

summary conviction allows for a conditional sentence. I would add, parenthetically, that a suspended sentence with probation is not appropriate given the facts of this case. [ 20 ] While I am confident that Taylor Wichart would comply to the letter with a conditional sentence order, in my opinion such a sentence would not contain a sufficient “I told you so” value.

It would not address the requirements for denouncing her criminal thinking that began with her first drink and the caution to her friends that she intended to risk drinking and driving nor would it represent a sufficient effort by the Court to achieve some general deterrence. Similarly, such a sentence would ignore her failing to recognize the

risk factor inherent in her occasional decision to consume liquor after failing in the past to succeed in recovery. [ 21 ] Taylor Wichart is sentenced to imprisonment for one year and, pursuant to Criminal Code subsection 320.24(2) , is prohibited from operating a motor vehicle for a period of eighteen months following her release from imprisonment. In view of the licensing and insurance implications of this conviction, costs and surcharges are waived. “Original signed by” Pollack S.P.J.