Her Majesty the Queen - v. -, 2010 SKPC 159

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 159 Date: November 22, 2010 Information: 38416259 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew William MacDonald Appearing: C. Alexander For the Crown K. Amyotte For the Accused JUDGMENT M. M. BANIAK , J I.

INTRODUCTION [ 1 ] Andrew William MacDonald pled guilty to count 9 of Information 38416259, being that he did on or about the 12 th day of December 2009, at or near Prince Albert, Saskatchewan, operate a motor vehicle in a manner dangerous to the public, and did thereby cause the death of Tammy Lee Stene, contrary to s. 249(4) of the Criminal Code . [ 2 ] He also pled guilty to count 10 of the same Information, namely, that he did on or about the 12 th day of December 2009, at

or near Prince Albert, Saskatchewan, operate a motor vehicle in a manner dangerous to the public and did thereby cause bodily harm to Gloria Merasty, Aleyna Stene and Leonard Keenatch, contrary to s. 249(3) of the Criminal Code . II. BACKGROUND [ 3 ] On the day in question, December 12, 2009, Andrew MacDonald, by his own admission, consumed “...eight beer, two triples of rye and rum and a couple of shooters.” [1] He had a vehicle in the vicinity of the bar, and, as he had no ride after the establishment closed, he decided to drive.

He drove to a party but did not go inside with his girlfriend as he wanted to go to another party across town. Before getting to that party he decided to turn around and go back to get his girlfriend. [ 4 ] At approximately 3:30 a.m., at the intersection of 13 th Street West and 9 th Avenue West in the City of Prince Albert, Andrew MacDonald drove through a stop sign and struck a taxi cab carrying three passengers. The collision resulted in the death of Tammy Lee Stene and injuries to Gloria Merasty, Aleyna Stene and Leonard Keenatch, the driver of the taxi cab. [ 5 ] Inside Mr.

MacDonald’s truck was found a full bottle of beer and a partially consumed bottle of a cooler beverage. At 4:26 and 4:56 a.m., Mr. MacDonald’s readings were 220 and 210 milligrams of alcohol in 100 millilitres of blood. [ 6 ] Andrew William MacDonald is 20 years of age. At the time of this tragic accident he was 19 years old. He has no criminal record. He grew up living with his parents in Stony Rapids, Saskatchewan until he was 15 years of age at which time he came to live in Prince Albert in order to continue his education.

While in Prince Albert, he resided with his aunt, Lillian Laprise, and, later with his sister, Carrie Toutsaint. Both of his parents are educators in Black Lake, Saskatchewan. [ 7 ] According to the pre-sentence report prepared by Ms. Jessica Purdy, Andrew graduated from St. Mary’s High School at the age of 18. He was a very good student with some of his marks being in the 80's and 90's. His mother confirmed that he did well in school and won awards. After completing his high school education he started working at the McLean Lake mine. He worked there until being laid off on August 31, 2010.

The lay off was due to the mine running out of ore. Thereafter, he started working at the Stony Rapids water treatment plant on a casual basis.

According to a letter of support signed by the Black Lake First Nation Chief and Council, Andrew is characterized as a “...very good leader in the school and his citizenship skills were admired by school staff and community members.” [2] [ 8 ] These sentiments were echoed by the Mayor of Stony Rapids, Sandra Hansen, who described him as “...a kind and respectful young man” [3] , who did volunteer work in the community. [ 9 ] Andrew’s defence counsel also filed a letter written by his client to the victim’s family.

I will quote the letter in full so as not to distort the message: I am sorry I took so long to write this letter to you. I just wanted to think about the right things to say. I am really sorry for the loss of your wife, mother and relative. I want you to know that I would back through time to change all of this for the better. I don’t go without a single day about the incident, and thinking about the sorrow that your family is going through. It made me a whole different, it changed my life, made me think about life in a new perspective.

I want your family to know that I didn’t mean to do it, to take a loved one from your family. I didn’t plan any of this out, and I am sorry from the bottom of my heart. I hope your family won’t think of me as a bad person. I would never do any of this on purpose, to hurt anyone. I hope your family would please forgive me for taking lovely wife away from you. But I want you to know from the bottom of my heart that I am deeply sorry. [ 10 ] The victim’s family, in their victim impact statements speak of the huge loss and extreme sorrow they feel on a daily basis.

Aleyna Stene, Dale Arcand, Amena Stene, Anne Stene, Alexina Stene and Hurley Peters all paint a picture of the deceased as a loving and generous person. They all view this as a senseless crime perpetrated by an irresponsible and selfish person. They want justice done. Their feelings are understandable - Tammy Stene was 44 years of age and, under normal circumstances, could look forward to many enjoyable years ahead of her. Her children and grandchildren will not be able to enjoy her company. As her husband, Dale Arcand, wrote “...I see everyday the hurt and emptiness my children and grandchildren feel.

No amount of money will bring my wife of 27 years back to me. I feel cheated out of the life I could have had with her. I only wish justice will be served.” [4] [ 11 ] I understand and acknowledge their pain. I hope that they have started their healing process and that in time they will be able to resume their lives - that anger and sorrow will yield to acceptance and hope. III. POSITION OF THE PARTIES [ 12 ] The Crown has submitted that this is a crime deserving of penitentiary time and have asked for a sentence of two years and a driving prohibition of three years.

It was also suggested that a prohibition order for ten years pursuant to s. 109 of the Criminal Code be imposed - although no authorities were cited in support of this position.

The Crown contends that the two most important factors in sentencing offenders who cause death while driving impaired are denunciation and deterrence. [ 13 ] Defence counsel, stressing his client’s age, lack of criminal record and profound remorse, posits that a jail term of eighteen months, followed by a driving prohibition of two years would be appropriate. [ 14 ] Both parties submitted numerous authorities in support of their respective positions.

IV. ANALYSIS [ 15 ]

Section 718 of the Criminal Code states as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 16 ]

Section 718.1 states that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ]

Section 718.2(

b) states that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 18 ] In the instant case, both the Crown and defence agree that only a custodial sentence is appropriate and mandated - they disagree, however, on whether this sentence should be served in a provincial correctional centre or in a penitentiary. [ 19 ] In crafting a sentence for the offence of dangerous driving causing death, and of causing bodily harm, I am guided by decisions from all levels of Courts in this province. [ 20 ] I believe that an examination of some of these decisions, even if cursory, may prove instructive. [ 21 ] In R. v.

Blackwell , [5] the Saskatchewan Court of Appeal was of the view that an eighteen year old who was speeding down a residential street at about 100 km/hr in a 50 km/hr zone when he broadsided a car, killing an eight year old child, and injuring two others, should be sentenced to nineteen months imprisonment and a three year driving prohibition. The accused had four speeding violations prior to the incident and before trial he was again convicted of speeding, as well as running a stop sign and driving an unregistered vehicle. He refused to accept total responsibility for the accident. [ 22 ] In R. v.

McDonald , [6] the Court of Appeal imposed a sentence of eighteen months for criminal negligence causing death. The accused was an aboriginal woman living in a small aboriginal community. She drove her vehicle into a crowd of people. Her breath sample revealed a reading of more than twice the legal limit. She had a previous conviction for impaired driving. [ 23 ] In R. v. Decap , [7] the Saskatchewan Court of Queen’s Bench, in a case involving dangerous driving causing death and dangerous driving causing bodily harm, sentenced a twenty year old to eighteen months imprisonment and a three year driving prohibition.

The accused was speeding and he was impaired. He had a previous conviction for impaired driving. [ 24 ] In R. v. Merrifield , [8] the Saskatchewan Provincial Court sentenced a twenty year old offender to eighteen months in prison, with a three year driving prohibition, for impaired driving causing death. The accused was travelling 110 km/hr in a 50 km/hr zone. His remorse, as well as his taking responsibility by entering a guilty plea, were viewed by the Court as significant mitigating factors. [ 25 ] In R. v. Galloway , [9] the Court of Appeal dismissed the appellant’s conviction and sentence appeal.

The Court of Queen’s Bench convicted Ms. Galloway of dangerous driving causing death ( s. 249(4) ); dangerous driving causing bodily harm ( s. 249(3) ); impaired driving causing death (s. 255(3)); impaired driving causing bodily harm (s. 255(2)); and leaving the scene of a collision without giving her name and address, with the intention of avoiding civil or criminal liability (s. 252(1.2)). The Court sentenced Ms. Galloway to two years imprisonment on the first four counts (with the same to be served concurrently) and six months consecutive for “leaving the scene” of the accident.

The Court also imposed a three year driving prohibition. She did not show remorse and refused to take responsibility for her actions. She had a previous conviction for driving while her blood alcohol level exceeded .08. [ 26 ] In R. v. Smith , [10] the accused was sentenced to twenty-seven months incarceration, with a seven year driving prohibition, after he pled guilty to operating a motor vehicle in a manner dangerous to the public and thereby causing death contrary to s. 249(4) of the Criminal Code .

The accused was nineteen years of age, did not have a criminal record, but had ten driving offences in less than three and a half years. At the time of the accident, it was estimated that he was driving at twice the posted limit, which was 50 km/hr. [ 27 ] On appeal of sentence the Court of Appeal was of the view that a sentence in the neighbourhood of eighteen months (as in R.

v. Decap[11]) would have been more appropriate. However, since the accused’s counsel requested that his client serve his time in the penitentiary the Court of Appeal reduced the sentence to two years, but acknowledged that “...this term is slightly above the range...”.[12] The seven year driving prohibition was reduced to two years. [28] In September of this year, the Saskatchewan Court of Queen’s Bench, relying on the Saskatchewan Court of Appeal’s decision in R. v.

Smith,[13] sentenced an accused (Mitchell Rebryna)[14] to twenty-six months imprisonment for dangerous drivingcausing death and leaving the scene of the accident. After the collision, the accused fled the scene and his car was found later that dayabandoned in an alley several blocks away. A tip from the public led to Rebryna’s arrest the following day.

The sentence wasapportioned as follows: twenty months for the dangerous driving causing death, followed by six months consecutive for leaving thescene of the accident. [29] As has been stated on various occasions, by Courts of every level, it is important to avoid disparity in sentencing and try toensure that the sentence is proportionate to the gravity of the offence - having regard to the mitigating and aggravating circumstances. [30] The Crown submits that this is a crime deserving of penitentiary time and asks for a sentence of two years and a three yeardriving prohibition.

It contends that deterrence and denunciation must be the paramount considerations. [31] Defence counsel argues that a sentence of eighteen months together with a driving prohibition of two to three years, is moreappropriate. The accused’s lack of criminal record, his remorse and acceptance of responsibility, as well as his standing in thecommunity are cited as being mitigating factors. [32] In my view, Mr. MacDonald, with no excuse or explanation other than drunkenness, drove in a dangerous manner and causedthe death of one person and bodily injuries to three others.

There is clearly a need to denounce this offence and send a message to othersthat drinking and driving has no place in our society and that the Courts of this province will not tolerate it. Ordinarily, a penitentiaryterm would not be out of the question. However, having regard to this young man’s age; his lack of criminal record; his clean drivingabstract; his remorse - which to me appears sincere; his exemplary conduct since his release from remand; as well as his takingresponsibility by entering a guilty plea, tip the balance in favour of a provincial correctional centre.

It cannot be ignored that Mr.MacDonald, an aboriginal person living in a small northern aboriginal community will have to live with the history and stigma of thisaccident long after he is released from custody. [33] Accordingly, taking into account the six days he spent in remand, I sentence Mr. MacDonald to an additional twenty monthsto be served in a provincial correctional centre on count 9 of Information 38976259; further, I sentence him to three months on count 10of the same Information to be served consecutively. [34] Pursuant to s. 259(

a) of the Criminal Code, Mr. MacDonald is prohibited from operating a motor vehicle on any street, road,highway or other public place for a period of three years from today. In accordance with provincial legislation, s. 141 of The TrafficSafety Act I have to advise that his driver’s licence is immediately suspended and he will be disqualified from obtaining a driver’s licencein Saskatchewan or elsewhere in Canada. And, of course, he is disqualified from driving a vehicle on any street, road, highway or otherpublic place until such time as he obtains a valid driver’s licence.

He will also be required to pay a federal victim surcharge in theamount of $200.00. [35] Dated at the City of Prince Albert, in the Province of Saskatchewan this 22nd day of November, A.D. 2010. __________________________________ M. M. Baniak, J [1] Pre-sentence report, page 7. [2] Letter from Black Lake First Nation, dated August 30, 2010. [3] Letter from Mayor Sandra Hansen, dated August 24, 2010. [4] Dale Arcand’s victim impact statement. [5] R. v. Blackwell (1999), (SK CA), 180 Sask. R. 102. [6] R. v. McDonald (1997), (SK CA), 152 Sask. R. 81.

[7] R. v. Decap (2003), 2003 SKQB 450 , 239 Sask. R. 244. [8] R. v. Merrifield (2007), 2007 SKPC 77 , 297 Sask. R. 276. [9] R. v. Galloway, 2004 SKCA 106. [10] R. v. Smith, 2009 SKCA 38. [11] R. v. Decap, supra. [12] R. v. Smith, supra, p. 7. [13] R. v. Smith, ibid. [14] R. v. Rebryna, QBJ 19/2009, Madam Justice Dovell, Saskatchewan Court of Queen’s Bench, Unpublished, September 22, 2010.