r v. Norman Graham, 2016 QCCQ 1612

R. c. Graham 2016 QCCQ 1612 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF TERREBONNE Criminal and Penal Division No. 700-01-105635-117 DATE: March 7, 2016 PRESENT: THE HONOURABLE BRUNO LECLERC J.C.Q. Her Majesty The Queen Prosecutor v. Norman Graham Accused JUDGMENT ON SENTENCE [ 1 ] Following a trial, the accused was found guilty on June 27, 2014 of causing by criminal negligence the death of T.O.H. (2000- 04-04) and bodily harm to Tricia Ouellette-Hobbs in the same tragic event. [1] [ 2 ] The facts are simple. The accused decided to transport his wife in a motor vehicle.

He travelled on a road that he was familiar with. This road has two lanes, one in each direction. The speed limit is 70 km/h, then decreases to 50 km/h and decreases again at the entrance to a school zone. [ 3 ] The evidence shows that the vehicle driven by the accused was travelling at approximately 100 km/h; an expert assessment evaluated a minimum speed of 92 km/h on impact.

[ 4 ] The witnesses clearly indicated passing manoeuvers in prohibited zones and while there were oncoming vehicles; some vehicles had to swerve onto the shoulder to avoid hitting the accused’s vehicle. [ 5 ] The vehicle in which the victims were travelling was stopped at a compulsory stop signal, a few meters into a school zone. [ 6 ] The accused’s vehicle hit a first vehicle and continued travelling. It did not stop as it approached the victims’ vehicle and hit it from behind (while still travelling at this minimum speed evaluated at 92 km/h).

It was upon this impact and due to the configuration of the site that the young girl, who was seated in the back seat of the vehicle, was killed. The other victim, the mother of the deceased girl, was the front passenger of the same vehicle and suffered grievous bodily harm. [ 7 ] The accused has no recollection of the events and therefore cannot explain the way he drove during the events. [ 8 ] No health reasons explain this conduct.

The only explanation came from the spouse of the accused, who was with him during these manoeuvers, but those explanations were not accepted by the Court because they contradict the factual and testimonial evidence accepted by the undersigned. [ 9 ] The defence argued that the accused may have confused the accelerator and the brake pedal upon nearing the stop sign; however, the manoeuvers began approximately one kilometer from the said stop sign and in an area where the sign and the victims’ vehicle could not be seen by the accused and his spouse.

POSITIONS OF THE PARTIES [ 10 ] The prosecuting attorney, insisting on the tragic consequences of the event, the circumstances of the conduct accepted by the Court and jurisprudence establishing a range of sentences for this type of offence, called for the imposition of a prison term. Without suggesting a quantum , the prosecutor emphasized that our Court of Appeal has established, for crimes of this nature, that the sentence usually ranges from 18 months to 3 years of incarceration. [2] [ 11 ] Mr.

Graham’s attorney, for her part, insisted on the numerous mitigating factors afforded the accused in light of the pre-sentence report filed in the Court record.

According to her, the absence of a risk of reoffending and the advanced age of this individual, who has always been an asset to his fellow citizens, demands a sentence in the form of a suspended sentence or an intermittent sentence, should the Court conclude that a prison term is necessary. [ 12 ] The defence bases its request on decisions in which suspended sentences were imposed [3] or intermittent sentences handed down [4] for crimes of dangerous driving or criminal negligence causing death or bodily harm.

THE LAW [ 13 ] The applicable law for imposing a sentence is provided in sections 718 et seq. of the Criminal Code . [ 14 ] The basic principle is stipulated in

section 718.1 of the Criminal Code : 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 15 ] The Court is convinced that the accused must be attributed full responsibility for the tragic consequences of the use of his vehicle during the events at the centre of this case. [ 16 ] The crime committed is very serious from an objective and a subjective standpoint. Causing bodily harm by criminal negligence renders the offender liable to imprisonment for a term not exceeding 10 years, whereas causing death by criminal negligence renders the offender liable to imprisonment for life, a treatment reserved for crimes that are considered the most serious by the legislator and society. [ 17 ] The objectives pursued in imposing a sentence are provided in

section 718 of the Criminal Code : 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct; [ 18 ] The Court must, once again, remind members of society that driving a motor vehicle on the road is a privilege and not a right.

With this privilege comes strict obligations to respect others and comply with basic safety rules when driving a motor vehicle. [ 19 ] The driving described by witnesses in this case clearly denotes the use of excessive speed, illegal and dangerous passing manoeuvers in significant traffic, among others, in an area where drivers should be extra careful, i.e. in a school zone and when nearing an intersection. [ 20 ] People of all ages use the roads and certain users seem to forget these notions of safety when they get behind the wheel.

The Court must loudly and clearly condemn this behaviour that continues to take human lives. [ 21 ]

Section 718 continues with regard to the objectives to be achieved when imposing a sentence:

b) to deter the offender and other persons from committing offences; [ 22 ] In this case, the personal deterrence aspect has already been achieved. [ 23 ] The third paragraph of

section 718 provides as follows: (

c) to separate offenders from society, where necessary; [ 24 ] The Court will come to this objective, but underlines that the vast majority of cases consulted by the undersigned mention that the seriousness of the crime and its consequences demand a significant prison sentence. [ 25 ]

Section 718 continues with the enumeration of certain objectives of sentencing as follows: (

d) to assist in rehabilitating offenders; [ 26 ] The Court is of the opinion that this objective is of little importance in this case, as there was never any question that the accused

had a problem requiring rehabilitation. [ 27 ] The fifth paragraph of the

section provides as follows: (

e) to provide reparations for harm done to victims or to the community; [ 28 ] In this case, the Court will never be able to provide repair for the consequences related to the events through the imposition of a sentence. [ 29 ] The undersigned also points out to those close to the young victim that the sentence to be handed down by the Court does not have a vengeful nature; this simply is not the role of the Court, nor one of the objectives provided for by law. [ 30 ] No sentence will replace your daughter and even the longest prison term that I could impose could never relieve your sorrow and help with the grief that you must face. [ 31 ] Like everyone involved in this case, I would like to be able to wave a magic wand, go back in time and bring back young T.O.H., but this is impossible and it is not what the law asks me to do. [ 32 ] The last paragraph of

section 718 mentions that one of the objectives of sentencing is: (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 33 ] After hearing the accused testify during the representations on sentencing, the Court is of the opinion that this objective is already achieved and the remorse mentioned by the accused appears sincere. [ 34 ] In order to achieve the objectives set out in

section 718 and the primary objective of sentencing, i.e. respect for the law and the maintenance of a just, peaceful and safe society, the Court must take into account certain elements provided in

section 718.2 of the Criminal Code , which stipulates: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. . . [ 35 ] The Court notes the following aggravating factors: - The circumstances of the incident, including the foreseeable consequences that such driving could produce; - The number of victims; - The fact that the accused could have and should have slowed down from the first events, i.e. the illegal and dangerous passing manoeuvers, but continued travelling at the same speed, even after a first collision.

- The tragic consequences related to this event, which the young victim’s family members must deal with; [ 36 ] The Court notes the following mitigating factors: - The age of the accused, who has always been an asset to the community; - The absence of a criminal record during all these years; - The support of his family and family network, and the fact that he himself has always been and continues to support his family; - The sincere remorse expressed by the accused and the sadness he feels in living with the consequences of his act every day; - The absence of a risk of reoffending and the fact that he stopped driving right after the events took place; - The favourable pre-sentence report; ANALYSIS [ 37 ] Once these principles and objectives have been evaluated, there is very little left to analyze. [ 38 ] The Court is faced with a very serious crime with tragic consequences that the accused assumes full responsibility for.

A crime committed by a person with no prior history, except that he has always been involved in his community in various capacities and who is himself living with the severe consequences of his act. [ 39 ] In reading the decisions submitted by the parties, one can conclude that the guidelines or sentencing range in these matters and emphasized by the Québec Court of Appeal are still relevant. [ 40 ] The undersigned is aware that this is but a range that can help the Court to exercise its discretion in sentencing.

As mentioned recently by the Supreme Court: . . .Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. . . [5] [ 41 ] With regard to the decisions submitted by the defence, they are, for the most part, unique cases that differ from the case at hand. For example, the decision made by the Superior Court in Czornobaj has nothing in common with the present case, given its significant mediatization, which is unrelated to our case. [ 42 ] The Court is of the opinion that were it not for the age of Mr.

Graham, this case would call for a sentence at the bottom of the scale of sentences that are normally imposed in these cases, i.e. a sentence of approximately 18 months of incarceration.

[ 43 ] However, the age of the accused bears importance in this case. [ 44 ] Not only has Mr. Graham always abided by society rules, but also a long prison term could in his case become a life sentence. [ 45 ] The imposition of an 18-month sentence when in the flower of one’s youth and with still many years ahead does not have the same significance as at the venerable age of 84, with a precarious state of health, at the end of one’s statistical life expectancy and when having to care for a spouse whose health has declined over time. [ 46 ] Given Mr.

Graham’s age, the Court is of the opinion that the circumstances permit it to deviate from the range of sentences generally imposed, despite paragraph 718.2 (

b) of the Criminal Code . [ 47 ] Moreover, the Court is of the opinion that the seriousness of the crime, the tragic consequences of this behaviour and denunciation of the crime demand the imposition of a prison term. FOR THESE REASONS, THE COURT: [ 48 ] SENTENCES the accused to serve a sentence of 9 months of imprisonment for each charge, to be served concurrently. [ 49 ] PROHIBITS Normand Graham from driving a motor vehicle in Canada for a period of ten years; BRUNO LECLERC J.C.Q. Attorneys: Mtre. Maxime Lacoursière for the prosecution Mtre. Isabelle Schurman and Mtre. Rose-Mélanie Drivod pour the accused Date of hearing: December 7, 2014