) Ms. K. Berkis ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Gunn - v. -, 2013 MBPC 56

R. v. Glowa , 2013 MBPC 56 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. K. Berkis ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Gunn - and - ) for the Accused ) SAM MICHAEL GLOWA, ) ) Sentence delivered Accused. ) July 31, 2013 _____ PRESTON, P.J. (Orally) Twenty-year old Sam Michael Glowa entered a guilty plea four weeks ago to impaired driving causing death. At that time I heard submissions from both Crown and defence counsel and I also heard heart-wrenching victim impact statements from the family of the deceased. Mr. Glowa himself spoke to the family of the deceased.

I remanded him into custody and he spent four weeks in jail awaiting this sentencing decision. The only issue for me is to craft a fit and proper sentence which is no easy task even though these types of circumstances and tragic consequences are sadly familiar to this court. The backdrop to the crime occurred during the evening of November 10th, 2011 and the early morning hours of November 11th, 2011. Mr. Glowa was drinking. He met up with his friend, Jonathan Meier. Later on Mr. Glowa, Mr. Meier and a young friend, Tanner Fewchuk, ended up drinking at Mr. Glowa's shed.

After about 45 minutes of hanging out and drinking, Mr. Meier realized that he was out of cigarettes. So the three young men decided to drive to the bar because there was a cigarette-vending machine inside. Unfortunately, Mr. Glowa was driving. Mr. Meier was in the front passenger seat and Tanner Fewchuk was in the backseat. In the process of leaving the parking lot Mr. Glowa put the vehicle in reverse and hit another motor vehicle. He left the scene of that collision, drove off, did not leave particulars. In recounting to the police what happened, the passenger, Mr. Meier, told the police that he recalled Mr.

Glowa backing up and hitting the car in the parking lot. Then he remembered that Mr. Glowa sped away from the drinking establishment and he remembered telling Mr. Glowa to slow down, which he did. The vehicle slid off the road and then rolled over. Mr. Meier was ejected from the vehicle, as was Tanner Fewchuk, who tragically ended up trapped underneath the vehicle. When the police arrived at the scene, Mr. Glowa identified himself as the driver of the vehicle. The police noted that Mr. Glowa was showing obvious and disturbing signs of intoxication. He was argumentative with the paramedics.

He was transported to Selkirk General Hospital and while at the hospital the police told Mr. Glowa that his young friend, Tanner Fewchuk, was deceased. Mr. Glowa was flabbergasted, he was upset and he implored the police to go and save his friend. He readily agreed to provide the police with a blood sample. The readings were 193 milligrams of ethyl alcohol in a hundred milliliters of blood, well over double the legal limit. In short, Mr. Glowa's young friend, Tanner Jay Michael Fewchuk, was crushed to death by the vehicle driven by Mr. Glowa at an excessive rate of speed while Mr.

Glowa's ability to drive was grossly impaired by alcohol. There was no mechanical problem with the vehicle. Ironically enough, the vehicle came to rest at a tree. Unfortunately neither passenger wore a seatbelt. It so needs to be said by this court, as it is said by all courts time and time again, drinking and driving in general leaves a brutal legacy of injury, damage, destruction, death, devastation and broken hearts. The emotional toll that this incident has taken was palpable at the sentencing hearing.

Tanner Fewchuk's mother, Leanne, bravely told me how wonderful her son was and how deeply she feels her pain, her loss, her grief. She knows what happened but she still cannot understand why it happened. Tanner's mom spoke directly to the court, as did his sister, Kristy, and his uncle, Ken, who also read out Tanner's surviving brother's victim impact statement. By all accounts, Tanner was a wonderful young man who loved life, was loved by everyone, friends and family alike. Everyone's grief is still raw, as is their pain. His sister is, for instance, afraid to drive or get into a motor vehicle.

She has anger and resentment towards Mr. Glowa. Tanner's brother writes poignantly of the life he will never have with his brother. All of these people are clearly traumatized.

His uncle, who has no children of his own, treated the Fewchuk kids as his. He told me that a light shut off in his head and it is hard to watch everybody suffer. Tanner's father wanted very much for the Glowa family to know that he appreciated they were hurting, too. He wisely told the court that anger makes things worse. The court readily acknowledges the huge, irreplaceable loss of such a vibrant force in their family. But the unfortunate reality of this type of offence is that compensation, in other words, reparation, restitution for the family and friends, is impossible.

Nothing that this sentence crafts can accomplish bringing back Tanner Fewchuk or erase the traumatic memories of this event. I only hope that when this young man here spoke to the victim's family and friends they listened to and heard his apology. It seemed a sincere, unadorned apology. Obviously this court's fervent hope for the grieving Fewchuk family is that both individually and collectively they can heal, either with each other's help or with professional help. What then is the appropriate jail sentence for Mr. Glowa? The Crown asks this court to jail him for three and a half years.

His lawyer urges the court to sentence him to a jail term of two years. Parliament has tried, as have the courts, to educate the public on the devastation of drinking and driving, of how drunk driving is a crime and not a socially acceptable mode of behavior. The penalties for this crime have steadily increased. Parliament has created higher penalties in recognition of the crimes’ tremendously serious consequences. For instance, no longer are conditional sentences available for this particular crime.

The Crown's submission correctly emphasized the sentencing principles of denunciation and deterrence are paramount. This court agrees. The offence is punishable by a maximum of life imprisonment and there is no minimum term of imprisonment, yet our Manitoba Court of Appeal recognized in the Ruizfuentes decision from 2010 that the range of sentence for these types of charges for a person with no prior criminal record is two to five years in jail. This behaviour must be denounced.

In other words, the sentence will reflect that the court and the community will not tolerate this kind of conduct and has to deter the offender from committing this offence. I can safely say that any jail sentence will deter this young man, based on everything I know about him. The reference letters speak to his good character. The risk assessment speaks to his lack of entrenchment of criminal conduct.

The principle of general deterrence means that this sentence has to send a message to our community to deter anyone who may be thinking of drinking and driving, yet the sentence has to be proportionate to the gravity of the offence. It has to hold Mr. Glowa accountable for his intentional risk-taking and acknowledge the harm that he has done while providing a just consequence. Every time anyone drinks alcohol to excess and gets behind the wheel of a car, that person is taking a huge gamble. That person has the potential to kill themselves or anyone else.

It is only a matter of blind luck that this type of devastation does not occur more often. I always say to the many people who, day in and day out, appear in these courts on these types of charges of drunk driving, there is no difference between them and a person who kills someone. The only difference is luck and the tragic consequences. The court cannot lose sight of the principle of rehabilitation when it comes to a young many like Mr. Glowa. He was 18 and a half when he committed this crime. He has no criminal record.

He was otherwise a contributing member of society, apprenticing as he is to become a welder, a skill that can take him anywhere around the world. Rehabilitation in this context is a competing objective and that is because this sentence has to reflect the moral blameworthiness of Mr. Glowa. I said earlier, there is no difference between the activity of drunk driving: the gamble is the act of drinking and driving. Having said that, I am dealing with the consequence of the gamble. Mr. Glowa is entirely responsible for the events of the evening which resulted in the death of another young person.

He chose to drink to excess and to drive. His level of intoxication was such that his ability to drive the motor vehicle was completely impaired. He chose not to stick around after he rear-ended a vehicle in a parking lot. He chose to speed. He was responsible for the accident. After the accident, while in the custody of paramedics, this otherwise mild-mannered young man that I see in court was argumentative with the paramedics. It was only later on that he eventually was distraught about what he had done when he found out.

Both counsel filed a number of authorities to justify their recommendation to the court and I have read them. Not any of these cases is exactly on par because sentencing, as often has been said and should be said, is an individualistic process. It is for this court to weigh the aggravating and mitigating features of this particular incident and this particular individual. The Crown pointed out that in recent years in the Province of Ontario, for instance, there has been an incrementally upward trend in jail sentences. And in her words, if Mr.

Glowa has to be the “guinea pig” then let it be because this is the only way to reflect society's condemnation and outrage. Mr. Gunn, defence counsel, in a passionate submission which alternatively acknowledged the inevitability of jailing his client and the emotional toll that that takes on everyone, urged the court not to use his client as a “guinea pig” for an increased sentence. He pointed out that some of the Crown's jurisprudence from Ontario dealt with cases which involved sentences imposed after trial processes. In this instance, Mr.

Glowa not only cooperated with the police at the first instance by providing a blood sample but gave Mr. Gunn instructions to deal with the matter as expeditiously as possible. And in those circumstances his guilty plea must be acknowledged as a genuine sign of remorse. The court has no hesitation in accepting that, based on everything I have read and heard and seen. Throughout the sentencing proceeding, this young man hung his head in shame in acknowledgment of the pain he has caused. The mitigating factors: Although this incident dates back, it has always been Mr.

Glowa's intention to accept responsibility and he has done so by his guilty plea. He did not force any witness or any family member of the deceased to testify at a trial. He accepted full responsibility for the crime. He has no criminal record. He is a very young man with every potential for rehabilitation. At the time of the accident he was just 18. He is an otherwise productive member of society. He is remorseful.

He has been assessed by a well-respected psychologist as a low-risk to re-offend criminally. According to Dr. Somers, Mr. Glowa does not present as being at all criminally oriented, let alone criminally entrenched in his thinking. As far as the reference letters are concerned, the picture painted is one of a young man with the world at his feet. He is described by his mother and father as a caring person, a helpful person, an empathetic person. His sister tells me of his remorse. He is the one who tries to make the sibling relationship work. His uncle describes that Mr.

Glowa has a photo of the headstone of young Tanner to remind him of his responsibility of the events. His uncle and aunt describe him as being respectful of family and friends, and his uncle, Gary, describes him as a gentle spirit. His 19 year old friend, Jordan Cowell, describes him as always a friend in need. The mother of his ex-girlfriend likes him a lot.

The aggravating circumstances: The facts themselves are aggravating; the decision to drive drunk with two passengers, allowing them to ride without a seatbelt, leaving the scene of a collision, speeding, not being in any meaningful fashion in control of the vehicle; the consequence of the accident, a 15 year old life has been taken away by him forever, his blood-alcohol reading was very high, the alcohol was more than double the legal limit. This is a statutorily aggravating feature. Another aggravating feature is that there was no other cause of the accident. The weather was not a factor.

The car was not in any mechanical difficulty. The road conditions were not a factor. An issue the court does wish to comment on is that at present, I see a limited insight with respect to the role of alcohol in this young man's life. I do acknowledge that he had abstained from drinking. He was not ordered to abstain from alcohol. I did hear evidence that there was a Facebook photo showing him drinking about a month and a half before the sentencing hearing. And in the small community where families and friends live, it was reckless to have that picture taken in that context.

I have carefully read the risk assessment report. Mr. Glowa's comments about drinking and driving are fuzzy. He tells the doctor that his mother has always instilled in him that drinking and driving is wrong. His parents tolerated his drinking, but urged his taking appropriate precautions. They encouraged him to walk if he was drinking or to get rides with a designated driver.

Contrast all this with his rationalization that on the night in question he could not have imagined that it would have happened because it was not too long a drive to town and he had not been overly concerned because he did not consider that his driving was a decision laden with risk. He acknowledged he had been drinking and he reported that he knew in a general sense drinking and driving should not happen but, “I did not think of an accident as a specific case.” Those were his words. And obviously he did not recall very many details of the accident.

He conceded that his judgment about drinking and driving may have been eroded and made the observation that such behaviour was relatively commonplace among his peers. I heard no evidence that he sought any meaningful counselling with respect to this. He did not like the counselling he did attend. From the court's perspective, in terms of a fulsome sense of responsibility and insight, there is a piece missing. This may well be evidence of his immaturity and youth. He has yet to make a concerted commitment to this aspect of his own rehabilitation.

Again, I want to thank Tanner's mother, sister, brother, uncle and father for articulating their loss. The power of their words resonate so deeply. Tanner was an exceptional young man and his death is tragic and entirely preventable. Applying all the principles to this young man, there is no question that a jail sentence is called for. The only issue is the length of the sentence. And it is clear that the range recommended by the Manitoba Court of Appeal is appropriate. I have a specific recommendation for a two year penitentiary sentence from defence counsel which I appreciate will not have been made lightly.

There is no question that Mr. Glowa will be deterred by this sentence. And this sentence sends a message that even a decent young man like Mr. Glowa, with great potential, must spend time in jail for this crime. As I said earlier, part of the function of this sentence is to deter others from contemplating getting behind the wheel after they have been drinking. Will this sentence deter people in general from getting behind the wheel after they have been drinking? Why do people continue to break this law? Is it because they think it will not happen to them? Is it because they think they will not caught?

Is it because there is a segment of our community that turns a blind eye to it, or worse yet, tacitly condones it? The principle of general deterrence assures the general public that the sentence for this crime will reflect its seriousness and people who commit this crime will receive these sanctions. This court fervently hopes that this sentence will be reported and the message received by the public. In all the circumstances Mr. Glowa has now spent approximately a month in custody and I do take that into account. The sentence going forward is 24 months in jail, two years, from today. Mr.

Glowa is prohibited from driving anywhere in Canada for five years following his release from custody. Mr. Glowa is required to submit a sample of his DNA to the correctional authorities within the next 30 days for entry in the forensic databank. As far as the Crown's application for a firearms prohibition, I have concluded that

Section 109 does not encompass these circumstances since violence against a person was not used in the sense of this section. I do not see Mr. Glowa as a future threat to society. Costs and surcharge are waived. _____