r v. RAYMOND, 2016 QCCQ 15196

R. c. Muller 2016 QCCQ 15196 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF Rouyn-Noranda LOCALITY OF Rouyn-Noranda Criminal and Penal Division No. 600-01-015030-161 DATE: December 2, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE JOSÉE BÉLANGER J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

RAYMOND HENRY MULLER Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ [ 1 ] On September 20, 2016, the accused pleaded guilty to the following offences: [The following passage appears in English in the original French-language judgment.] 2.

On or about May 11, 2016, in Rouyn-Noranda and Cadillac, district of Rouyn-Noranda and Abitibi, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, in order to evade the peace officer, did fail to stop the vehicle as soon as was reasonable in the circumstances, committing thereby the indictable offence provided by

section 249.1 (1) (2)

a) of the Criminal Code . 3. On or about May 11, 2016, in Rouyn-Noranda and Cadillac, district of Rouyn-Noranda and Abitibi, operating a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, committing thereby the indictable offence provided by section 249 (1) a)

(2) a) of the Criminal Code . [End of passage.] The facts [ 2 ] In support of the representations on sentencing, the parties filed, by mutual agreement, as Exhibit S-1, a document relating the facts relevant to this case. Those facts are as follows: On May 11, 2016, around 11:06, a highway controller saw the vehicle of the accused on the road. The accused was driving a modified school bus with certain defects. The controller decided to intercept the school bus in front of the Ultramar gas station on rue Larivière in Rouyn-Noranda.

As the controller’s cruiser was flashing its lights, the accused flashed his as if he was about to pull over, but kept going. At that moment, the controller activated his siren but the accused still continued to drive. The controller followed the accused’s vehicle. When they reached the office of the highway controllers, a second highway controller cruiser started to chase the accused to help his colleague. At that moment, the vehicles’ speed was around 70 km/h. One of the controllers’ cruisers overtook the accused’s vehicle to make him pull over. The manoeuvre succeeded and the accused stopped his vehicle.

The controllers went to speak to the accused in English. They asked for the usual documents, which the accused’s spouse gave them. The controllers clearly explained to the accused that he had to follow them to their office. The accused refused, explaining that he had to go to the emergency department of a Montréal hospital with his child, who has heart problems, and that he would not comply with their demands even if they called the police, the RCMP or the OPP. The controllers explained to the accused that the health of the child would be evaluated at their office and that measures would be taken.

The accused chose to continue driving. He passed the controller’s vehicle on the right side and evaded. In doing so, he came very close to the vehicle and to one of the controllers. At this point, the controllers chased the accused’s vehicle again and contacted the SQ for assistance. The vehicles’ speed was around 80 km/h. At around 11:26, in front of the airport, a first SQ cruiser reached the accused’s vehicle, flashing its lights with its siren activated. The events occurred on route 117 and there was a high volume of traffic. After being pursued for 3 km by the SQ cruiser, the school bus stopped.

The police officer drew his weapon and ordered the accused several times to get out of his vehicle. He noted the presence of a woman and a child around the age of six. The accused said that he was going to Hôpital Sainte-Justine and that there were six people inside the vehicle. He then started driving again, and the pursuit continued

at speeds ranging between 60 and 90 km/h. Police officer Bédard placed a police spike strip 13 km from the location where the accused stopped his vehicle. The accused took the opposite side of the road to avoid the spike strip and continued to flee. Another spike strip was used by the police 22 km further down the road. This time, the accused stopped the school bus, then started again and avoided the spike strip by using the shoulder. A roadblock of police cruisers was in place 400 metres after the last spike strip. The school bus stopped and the officers had difficulty arresting the accused.

They had to damage the school bus to proceed and pepper spray was used. The accused was with his spouse and four children, aged four months to 13 years. The accused mentioned that they had been travelling across Canada for eight days to get to the hospital. The school bus was not seized, but it has one major and 15 minor defects and cannot be put back on the road without being repaired. The police pursuit lasted around 50 minutes over a distance of 38 km. Seven police officers and two highway controllers were involved in stopping it. The pursuit with controllers and police officers lasted more or less 56 km.

Positions of the parties [ 3 ] The prosecution asked the Court to stay the sentence and to order that the accused be discharged under the usual conditions of a probation order. In addition to that sentence, the prosecution asked the Court to prohibit the accused from operating any motor vehicle for three months, under section 259(2) (

c) of the Criminal Code . [ 4 ] The defence asked the Court to discharge the accused absolutely. Defendant’s evidence [ 5 ] In support of its application, the defence called Kathryn Stuart, the accused’s spouse. [ 6 ] The accused has been her husband and music partner for over 16 years. They are the parents of four children ages 13 years old, 8 years old, 5 years old and 10 months old. [ 7 ] For 12 years, they have all been living in a modified school bus. They travel across Canada and live off their music. [ 8 ] Their daughter Alexandra, born in 2003, has significant health problems.

When she was only five weeks old, physicians diagnosed her with a heart defect. She underwent open-heart surgery when she was seven weeks old. The operation was not entirely successful, as she had to wear an external pacemaker for 11 days. When she was eight weeks old, she received an internal pacemaker. [ 9 ] Due to her health problems, the child must be closely monitored.

Because the results of the operation were not substantial, the parents were not satisfied with the care she received in Victoria, British Columbia: not all of the child’s heart problems were resolved. [ 10 ] The family went to Halifax to meet with another cardiologist. The various medical consultations revealed that pressure was high in the child’s right ventricle and that a second operation may be necessary. [ 11 ] Lastly, a physician from Chicago recommended that they go to Hôpital Sainte-Justine in Montréal to obtain a second medical opinion.

That meeting took place in 2004. [ 12 ] In 2006, when the child was three years old, the family stayed in New York City for three months. They returned to Montréal in 2007. The child’s pacemaker was replaced in part at Hôpital Sainte-Justine. [ 13 ] Life went on. The family continued to travel and live off their music. The children were educated by the mother. During that time, the child was followed by Dr. Fournier and everything went well. [ 14 ] In 2012, the family traveled to the Yukon.

The child’s pacemaker was verified every six months and everything went well, until they consulted a physician in Whitehorse who noted that the pacemaker was defective. According to him, the pacemaker was internally damaged. The family lived in Alberta from 2012 to 2014, still traveling in the bus and living off their music. [ 15 ] In 2015, a physician in Prince Rupert noted that the battery of the child’s pacemaker was weakening. A surgery was planned for 2017 with Dr. Fournier at Hôpital Sainte-Justine.

As of that moment, the family developed plans on the basis of the upcoming surgery. [ 16 ] In early May 2016, while the family was in Prince Rupert, the mother noted that the child’s pacemaker was defective, since her heart was not doing well. Her parents took her to the Prince Rupert hospital, where she was observed by physicians for over three hours. They concluded that the pacemaker was working erratically. [ 17 ] In the early morning of May 4, 2016, the parents contacted a physician for the purpose of going to the Edmonton hospital.

They did not want to go to Victoria because of the negative experience they had had there. [ 18 ] The family arrived in Edmonton on Friday evening and parked near the hospital. The child had an appointment for May 11 at the Edmonton hospital, aimed at verifying the proper functioning of her pacemaker. Ultimately, the parents decided not to go to the appointment and to head directly for Hôpital Sainte-Justine in Montréal, so that the child could be seen by her physician. That decision was motivated by the fact that the parents trusted the physician and nursing staff at that hospital.

It will be noted that the child did not

have an appointment at Hôpital Sainte-Justine and that the parents had to go to the hospital’s emergency department. [19] On May 9, 2016, the family was in Kenora, Ontario. The father chose to go through the United States, since the bus was notworking well. The father then decided to have the bus inspected by a mechanic. The mechanic detected a problem with the engine,having to do with the vehicle’s start-up. [20] The bus drove toward Montréal for 18 hours, eventually reaching Rouyn-Noranda. The child was doing well.

Then, the fatherwas intercepted by the police and later arrested. [21] Social services intervened, and the mother and the child were taken to a women’s shelter. The child was seen by a physician,who noted that the housing of her pacemaker had stopped working and needed to be replaced. Dr. Taktak contacted the physicians atHôpital Sainte-Justine so that steps could be taken to have the child undergo an operation as soon as possible. [22] The mother, the child and the 10-month-old baby went to Hôpital Sainte-Justine on May 18. The child was operated the nextday and hospitalized until May 21.

The operation was a success and the child received a new pacemaker, which worked very well. [23] The father was incarcerated at the time of the operation. [24] The child is now 13 years old and is doing very well. [25] The cross-examination of Ms. Stuart revealed the following: • The school bus was purchased in 2001; • The last inspection was conducted in 2016. However, it was not an official inspection; • On May 11, Ms. Stuart called 911 and said that they were arriving from Prince Rupert. The 911 dispatcher told her to stop, as theywere being pursued by the police; • Ms.

Stuart told this to her husband, who stopped twice. He explained the situation and the child’s health problems to the police.They replied that they would take care of the child once they arrived at a police station; • Ms. Stuart’s husband did not exit the bus. He kept going, since it was an emergency situation.

Applicable law [26] The objective gravity of the offence provided for in section 249(1) of the Criminal Code, i.e. dangerous operation of a motorvehicle, is significant, as it is liable to imprisonment for a term not exceeding five years. [27] The subjective gravity is also significant, as shown by the facts in this case. In addition, the accused is fully responsible. [28] Sentencing is a delicate task that must meet the objectives and principles defined in the Criminal Code. The sentence must beindividualized and adapted to the aggravating and mitigating circumstances relating to the offence and the offender.

Furthermore, whensentencing, the Court must take into account the principle of parity, i.e. “a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances” (section 718.2(

b) of the Criminal Code). [29] As Salvatore Mascia J. of our Court very accurately pointed out regarding parity in sentencing, [TRANSLATION] “it isdifficult, if not impossible, to find two cases whose circumstances are identical in every way”.[1] [TRANSLATION] [39] With regard to the principle of parity in sentencing, the following comments are appropriate: any comparative study has inherentlimitations. It is difficult, if not impossible, to find two cases whose circumstances are identical in every way. In R. c.

Bernier, 2011QCCA, our Court of Appeal, in paragraph 67, reiterated the remarks of the Supreme Court in R. c. M.C.A, [1996] 1 SCR 500, , to illustrate the limitations inherent to the principle of parity in sentencing, as well as the importance of the principle ofindividualization in sentencing: . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should beexpected to vary to some degree across various communities and regions in this country . . . [30] The sentence must be consistent with the principle of proportionality, that is, it must not exceed what is just and appropriate inlight of the moral blameworthiness of the offender and the gravity of the offence. [31] In Abouabdellah c.

R.,[2] our Court of Appeal states this great principle, which must guide trial judges seized of an applicationfor discharge: [TRANSLATION] The golden rule in the matter states that an offender must not, in fact, be subjected to a punishment that is disproportionate to the offence,particularly where, as in this case, the offender does not have a criminal record, the offence was not premeditated, and its relative gravityis not significant, even though it is clearly reprehensible; [32] Discharge is addressed in

section 730 of the Criminal Code. Vauclair J. very clearly summarized the principles governing thatsentence.[3]

[TRANSLATION] [16] The general principles surrounding discharge are well known. Where the best interest of the accused requires it and thepublic interest is not affected, the Court may discharge the accused.

In such case, the accused is not sentenced, but the convictionremains; the person must therefore answer in the affirmative a question concerning that point, rather than the existence of a conviction.[7] Lastly, where a discharge is conditional, the order may be revoked and another sentence may be imposed if the conditions are notcomplied with or if there is a conviction for another offence, in accordance with section 730(4) of the Code. [17] In principle, the accused’s interest supposes the accused to be a person of good character who, as a rule, does not have acriminal record and who does not pose any problems with regard to specific deterrence and rehabilitation.

The public interest is evaluatedfirst and foremost in terms of the gravity of the conduct and its impact on the community, the need for general deterrence and theimportance of maintaining the public’s trust in the administration of justice.[8] [18] Such an order is generally issued where the circumstances of the offence are not particularly grave and the consequences of aconviction could be very serious; however, the provision should not be interpreted restrictively or exceptionally, the only test being theequilibrium between society’s interests and those of the accused.[9] The mere fact that a criminal sentence will have no immediateconsequence on the accused’s job does not bar a discharge; there needs only be a reasonable possibility in that regard.[10] [33] In this case, the two prior conditions required by

section 730 of the Criminal Code are met. There is no minimum punishmentprescribed for the offences, and they are not punishable by imprisonment for fourteen years or for life. Hence, a discharge may beconsidered. But is it an appropriate measure?

At this stage, the best interest of the accused and the public interest must be examined. [34] Jean-François Gosselin J. made the following comments about what the public interest requires:[4] [TRANSLATION] [53] What the public interest demands is directly dependant on the disparity between the alternative sentence, i.e. a discharge, and thesentence that would normally be imposed in the circumstances: the greater the disparity, the less the public interest can accommodate adischarge; conversely, the lesser the disparity, the more likely that the public interest will be properly served by a sentence without aconviction.

In other words, there is more to overcome if the crime to be punished deserves, for example, a sentence of imprisonment. [54] On reading the abundant jurisprudence cited by the prosecution and the defence in support of their respective positions, theCourt was struck by the fact that, each time a court of appeal has been seized of the question of whether absolute or conditional dischargewas appropriate in the circumstances, the range of sentencing should have normally been that identified as simple probation measures bythe Supreme Court in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61.

It will be recalled that this lower sentencing range includessuspended sentences with probation orders, as well as fines with or without probation. [35] Limiting the notion of public interest to general deterrence is an error in law. The following excerpt from R. v. Glover[5] isrelevant in that regard: 58 In R. v. Poitras, 2005 ABPC 334 , [2005] A.J. No. 1592 in considering the scope of the public interest the Court quotedwith approval from R. v. Boyko, 2003 SKQB 139; R. v. Kadotchnikov, 2002 SKPC 112 and R. v. Knowlton, 2005 ABPC 29 asfollows: 41 In R. v. Boyko, 2003 SKQB 139 , [2003] 7 W.W.R. 489 (Sask.

Q.B.) (Boyko) Barclay J. held that equating public interestto general deterrence was an error in law. At para. 12 Barclay J. wrote : It is critical to underscore that Parliament intended to give the courts discretion to grant a discharge when the circumstances warrant. Il isincumbent on the courts to act in a judicious manner when considering a s. 730 application, with the ultimate goal of granting a justresult that balances individual and societal interests.

As the statute indicates, a conditional discharge is available for consideration forany offence other than those punishable by fourteen years imprisonment or greater. It is not restricted to trivial offences. Even for seriousoffences, a judge must address all relevant factors in determining the best interests of the accused and the public.

While generaldeterrence is to be considered, the public interest encompasses other factors as well. 42 Later Barclay J. added at para. 16: In assessing an application for a conditional discharge, the Court must carefully weigh all factors relevant to the best interests of theaccused and the public. In this case, the Court must consider the broad public interest. This is an offender who, in a moment of fear andanxiety arising from the complainant’s attack, acted recklessly. It was extremely out of character for him, and he has shown greatremorse.

Should he receive a conviction, the appellant may enter into his adult life with his career hopes dashed. In my view the broadpublic interest is not served by sanctioning the appellant in this way.

While it is true that others must be deterred from acting in a similarmanner, it is also apparent that it is in the public interest that the appellant have the opportunity to learn from this experience, and retainthe ability to pursue his career and become a law-abiding contributor to society. [emphasis added] . . . [36] The jurisprudence therefore recognizes that the public interest may include considerations other than deterrence. Decision [37] The Court accepts the following mitigating factors: • The guilty plea;

• The absence of prior convictions; • The motive of the accused, which the Court will elaborate on more fully in the following paragraphs. [ 38 ] The Court accepts the following aggravating factors: • The pursuit took place on route 117, for about 56 km, and there was significant traffic; • The acts committed by the accused indicate that, to some extent, he made a conscious and deliberate decision not to submit to the authorities. His comments are to the same effect.

In fact, he told the controllers that he would not comply with their requests even if they called the police, the RCMP or the OPP. [ 39 ] The accused’s interim detention is equivalent to 21 days. [ 40 ] At the time of the events, the accused was preoccupied, not to say obsessed, with his daughter’s situation. His only goal was to bring his child to Hôpital Sainte-Justine in Montréal so that she could undergo an operation.

The facts and the evidence adduced by the defence clearly show that the acts committed by the accused were motivated by that emergency. [ 41 ] Although the motive is not relevant in determining whether an individual is guilty or innocent, it is relevant in determining the appropriate sentence. In that regard,

section 718.2 of the Criminal Code shows that, in certain circumstances, the motive may be considered an aggravating factor. However, the motive may also be a mitigating factor, depending on the case. Accordingly, in Glover , [6] the following can be read: 43 On the other hand, crimes motivated by personal circumstances of a temporary nature may be viewed as mitigating, as are motives that are good, but misguided. Clayton C. Ruby, Gerald J. Chan & Nader R.

Hasan, Sentencing , 8 th ed. (Canada: LexisNexis Canada, 2012) writes: Crimes motivated by personal circumstances of a temporary nature are often viewed as mitigating. Addicts who import to meet and finance their needs bear a responsibility that «is not necessarily the same in degree as that of cold-blooded non-users». Financial difficulties, marital and family problems, emotional problems, medical problems and youth all have been accepted in mitigation of sentence.

The Alberta Court of Appeal has decided that an addiction to gambling is neither a mitigating nor (sic) an extenuating circumstance justifying a lower sentence. Of particular importance are the «twin plagues» of domestic misfortune and sorry economic conditions. The more serious the offence, and the harm done, the less weight can be given to such mitigating factors.

Where the offences are very serious, such as the causing of serious bodily harm, a good motive may little effect. [Emphasis added.] [ 42 ] Given the special circumstances of this case, the Court considers that the motive for the accused’s actions is a mitigating factor. At this stage of the decision process, it is important to examine the specific situation of the accused and his family. [ 43 ] The accused and his family have adopted a nomadic lifestyle. They all live in a school bus that they converted into a house.

The children also receive their education in the bus. [ 44 ] The parents earn a living as musicians and travel across the country. Some might say that they live on the margins of society. Rather, the Court considers that they live differently, in accordance with their own values. [ 45 ] Some might say that making a long trip across Canada, in a poorly maintained vehicle, to have a child undergo emergency surgery in Montréal, is not something one would do when motivated by an urgent need to act.

Others feel that quicker, more efficient solutions could surely have been considered and that the decision of the accused and his family was unreasonable, even ridiculous. [ 46 ] However, the Court’s sentence is not intended for all those people, but only for the accused. [ 47 ] What about the accused’s best interest? The evidence as a whole amply shows that it is in the accused’s best interest that he be discharged. He has no criminal record, is of good character, and specific deterrence and rehabilitation are not a problem in his case. [ 48 ] What about the public interest?

Because of the charges brought against him, the accused was temporarily detained for 21 days, which prevented him from attending his child’s operation. He was released on May 24, 2016, subject to severe conditions, the first being that he makes a $500 deposit. In addition, on May 31, 2016, he had to give his driver’s licence to the authorities; he is prohibited from driving and he must report to the Sûreté du Québec station in Rouyn-Noranda every week to sign the register. Those conditions were in force from May 24 to September 21, 2016, the date on which the Court changed them.

The conditions were difficult not only for the accused but for his family, which shares his lifestyle. [ 49 ] Given the accused’s lifestyle, the Court is convinced that a criminal record could harm him by restricting his ability to travel and making it difficult for him to cross the Canadian border. [ 50 ] The acts committed by the accused are not innocuous, as they constitute a serious blunder that mobilized law enforcement over a distance of nearly 56 km.

Nevertheless, the Court considers that the accused’s intentions, though misguided, were good. [ 51 ] The Court is of the opinion that discharging the accused, rather than staying the sentence and subjecting him to conditions, is not likely to harm the public interest. Considering the circumstances of this case as a whole, saddling the accused with a criminal record would be a sentence disproportionate to the offences committed. [ 52 ] With respect to the prohibition from driving sought by the prosecution under section 259(2) (

c) of the Criminal Code , the Court exercises its discretion and does not allow such an order. The Court believes that such a prohibition would have a disproportionate impact on the lifestyle of the accused and his family. It is not necessary to protect the public or deter the accused from driving dangerously in the future.

THEREFORE, THE COURT: [ 53 ] PRONOUNCES an absolute discharge on counts 2 and 3; [ 54 ] ORDERS the payment of the surcharge on the two counts within the time set by the law. __________________________________ JOSÉE BÉLANGER J.C.Q. Mtre. Michèle Lacasse Counsel for the prosecution Mtre. Lloyd Fischler Counsel for the accused Date of hearing: September 20, 2016