R. v. Outifrakh, 2014 ONCJ 589

Citation: R. v. Outifrakh , 2014 ONCJ 589 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WASSIM OUTIFRAKH Before Justice Alder Heard on December 6, 2013 and July 25, 2014 Reasons for Judgment released on August 15, 2014 Mr. Carl Lem .......................................................................................... counsel for the Crown Mr. May ................................................................................................... Mr.

Wassim Outifrakh ALDER J.: [ 1 ] On December 6, 2013 Wassim Outifrakh plead guilty to impaired driving causing death; contrary to Section 255(3) of the Criminal Code of Canada . [ 2 ] A pre-sentence report was ordered, and a sentencing hearing date was set for April 1, 2013. At the time, Mr. Outifrakh was out of custody on bail. [ 3 ] On January 10, 2014 he was arrested for breaching conditions of his release, and has been in custody since.

On July 25, 2014, he pled guilty to one count of breaching his recognizance of bail – failing to abstain from the consumption of alcohol – contrary to Section 145(3) of the Criminal Code of Canada . [ 4 ] The Crown submits that the appropriate sentence for the impaired driving causing death offence is 6 years and suggests a concurrent 45-day sentence for the breach; with pre-trial credit to be given at 1.5 for 1 for the time from arrest to release, and then 1 for 1 for the pre-trial custody following the breach.

In addition, the Crown seeks a 15-year driving prohibition, and a DNA order. [ 5 ] Defence counsel submits the appropriate range of sentence is 3 1/2 to 4 years, minus credit for pre-trial custody. Agreeing with the Crown, that the pre-trial credit should be calculated as 1.5 for 1 for the initial period of detention, and then 1 for 1 for the period following the breach. However, defence also asks for some credit for the time spent on bail – suggesting .5 for 1. In regards to the length of the driving prohibition, defence counsel suggests a period of 10 years.

The Facts: [ 6 ] In regards to the facts, two agreed statement of facts were filed along with a Collision Reconstruction Report. [ 7 ] On Sunday, March 10, 2013 at approximately 7:40 a.m., Janet Clermont had just finished work and was on her way home. She was driving northbound on Dunning Road, approaching its intersection with Innes Road, in rural east Ottawa. [ 8 ] At the same time, the accused, Mr. Outifrakh was driving eastbound along Innes Road. He had just spent the night at the Casino Lac Leamy in Gatineau, Québec. [ 9 ] Mr. Outifrakh failed to stop at the stop sign at Dunning Road, and collided with Ms.

Clermont’s vehicle at a high speed as it passed through the intersection. Both vehicles ended up in the field in the north-west quadrant of the intersection. The Collision Reconstruction Report concluded that Mr. Outifrakh made no attempt to stop or brake, or any steering manoeuvre to avoid collision. Witnesses who had been travelling northbound on Dunning Road in front of Ms. Clermont observed Mr. Outifrakh’ s vehicle approaching the intersection at too high a speed to be able to make the stop. They saw the collision occur behind them, and returned to the scene.

They called 911 at 7:41 a.m., and emergency services were dispatched.

[ 10 ] Ms. Clermont was pronounced dead at the scene. Ms. Clermont’s cause of death was “multiple trauma” and death was inevitable; and would have ensued nearly instantaneously. [ 11 ] Cst. Ben Albert was the first police officer on scene, arriving at 7:49 a.m. He found Mr. Outifrakh still in the driver’s seat of his vehicle, smoking a cigarette. Paramedics began attending to Mr. Outifrakh and decided to take him to the hospital, while Cst. Albert followed. [ 12 ] Mr. Outifrakh ended up providing samples of his breath into an approved instrument at the hospital at 11:02 a.m. and 11:23 a.m.

They registered 161 milligrams of alcohol per 100 millilitres of blood, and 154 milligrams of alcohol per 100 millilitres of blood respectively. According to a toxicologist’s readback of the breath samples, Mr. Outifrakh’ s blood alcohol concentration at the time of the collision was between 165 and 220 milligrams of alcohol per 100 millilitres of blood. [ 13 ] Mr. Outifrakh was discharged from hospital at around 11:50 a.m., and then conveyed to the police station. [ 14 ] On 8 April, 2013, Det. Taing executed a search warrant on the Ottawa Hospital, Civic Campus, seizing samples of Mr.

Outifrakh’ s blood that had been drawn in the course of his treatment, and his hospital records. Subsequent analysis revealed that the blood alcohol concentration in these blood samples (at 9:00 a.m., the time of collection) was 203 milligrams of alcohol in 100 millilitres of blood. The hospital records showed that they had done their own analysis of Mr. Outifrakh’s blood and ascertained that it contained 50 mmol/L (at the time of collection), which equates to 203 milligrams of alcohol per 100 millilitres of blood. Readback to the time of the collision, the blood samples indicate that Mr.

Outifrakh’ s blood alcohol concentration at the time of the collision was between 203 and 230 milligrams of alcohol per 100 millilitres of blood. [ 15 ] Mr. Outifrakh was detained after a contested bail hearing on 30 April 2013, and remained in custody until he was released at a bail review on 24 June 2013. He was on a recognizance with conditions including that he live with his parents, and remain under house arrest - unless accompanied by one of his sureties.

He was also required to abstain from the consumption of alcohol, and to wear two electronic monitoring ankle bracelets, which were owned and administered by Recovery Science Corporation. One bracelet was to monitor the presence of any alcohol in his body by analyzing his perspiration for alcohol, and the other bracelet was to monitor his location via GPS. [ 16 ] On 24 December 2013, Mr.

Outifrakh consumed alcohol in a quantity that, according to the monitoring bracelet, resulted in a peak blood alcohol concentration of approximately 73 milligrams of alcohol in 100 millilitres of blood. [ 17 ] That was the only instance of alcohol consumption detected by the bracelet. However, on the following days subsequent to his consumption, Mr.

Outifrakh applied alcohol externally to the monitoring bracelet: a. 25 December 2013; b. 26 December 2013; c. 28 December 2013 (twice); d. 29 December 2013; e. 30 December 2013; f. 31 December 2013 (twice); g. 1 January 2014; h. 2 January 2014; i. 3 January 2014. [ 18 ] On 25 December 2013, a representative of Recovery Science Corporation called Mr. Outifrakh to discuss the bracelet’s readings from the night before. Mr. Outifrakh denied consumption. [ 19 ] On 7 January 2014, representatives of Recovery Science Corporation attended Mr.

Outifrakh’ s home and replaced his bracelet in order to ascertain whether or not it was working properly, M. Outifrakh continued to maintain that he had not consumed alcohol or introduced externally to the bracelet a substance containing alcohol. Subsequent testing of the old bracelet confirmed that it was functioning properly. [ 20 ] Mr. Outifrakh has no criminal record.

His driving record contains the following entries: Offence Date Conviction Date Offence Demerit Points Circumstances 6 July 2012 20 July 2012 Driving with handheld device 0 6 April 2012 25 May 2012 129 km in 80 km zone 4 Charged for 132km in 80 km zone 30 Sept 2009 16 Oct 2009 65 km in 50 km zone 0 3 Feb 2008 19 March 2008 Driving left of centre 3 Crossed lane and struck oncoming car 20 Sept 2007 4 Nov 2007 75 km in 50 km zone 3

Pre-sentence Report/Other Materials: [21] A pre-sentence report was prepared and filed. It is noted he was cooperative with the probation officer. [22] Mr. Outifrakh is 25 years old. As mentioned, he has no prior criminal record. He came to Canada in 2003 with his family, andbecame a Canadian Citizen in 2009. He was raised in a close-knit, pro-social family. [23] He had difficulties in school and stopped attending school at the age of 18. He has had various employment for relatively shortperiods of time. His last employment was in March of 2013.

He would like to be a musical artist. [24] He stated that he regularly consumed marihuana from the ages of 15 to 19, but then stopped, and that he only experimentedwith other drugs. He indicated that he did not believe he had an alcohol problem, and stated he had not consumed alcohol since hisrelease on bail. This, however, was not true; as he has now pled guilty to consuming alcohol while on bail. He did acknowledge he hadan issue with gambling, and following the offence, he sought counselling at Serenity Renewal for Families. [25] The accused also advised that he was seeing Dr.

Dufour at the Royal Ottawa Hospital to help deal with post-traumatic stressresulting from the offence. In regards to the offence, he stated that the offence was a tragedy, and that he feels horrible that someone losttheir life and he thinks ‘what if’ daily. [26] When asked by the court if he had anything to say, Mr. Outifrakh gave his condolences to Ms. Clermont’s family; heapologized for the pain he has caused and noted the hardest part of his life is waking up knowing he took a life.

He stated that heunderstands his mistake, and is taking responsibility; adding he has learnt a lot, and will do a lot when he is released to inform people ofthe consequences of drinking and driving. [27] Also presented to the court were victim impact statements.

It is clear from these statements and the family and friends of Ms.Clermont present in court at the sentencing hearing, that she was a very special person; a mother, grandmother, wife and friend who wasdearly loved, and whose death has profoundly affected many individuals. [28] Her husband’s statement speaks of how his life will never be the same again, of the immeasurable loss; her sister wrote of howshe was denied the chance to say goodbye, and how her heart is broken. Her daughter spoke of waking up every day, hoping it is adream, of the sleepless nights, nightmares, flashbacks, of the pain of losing a mother.

She also spoke of the loss to her son; of him nothaving the chance to grow up with a loving, caring, grandmother. There was also a statement from Ms. Clermont’s 11-year-oldgrandson. He speaks of feeling really sad, of realizing he will not see his grandmother again, that she will not be there for his soccergames, birthdays, or other occasions. He speaks of how sad his brothers are; of how sad everyone is. Case Law: [29] Both counsel provided the court with case law.

Sentencing is a very individualized process and cases can generally bedistinguished on their facts; either as they pertain to the circumstances of the offence, or the offender. It is for that reason that I will notrefer to each case provided by counsel. [30] Prior cases can, however, be of assistance in identifying the weight and importance to be accorded to specific principles and/orobjectives of sentencing in relation to certain offences.

They can also assist in identifying factors or circumstances as aggravating ormitigating, and identifying ranges or trends in relation to certain offences and/or circumstances. [31] The Crown submitted that the cases it filed with the court show that there has been, and continues to be, a slow increase in thelength of sentences for impaired driving causing death cases. [32] In R. v. Junkert, 2010 ONCA 549 , 2010 O.J.

No. 3387, the Ontario Court of Appeal noted that: “courts should becautious in rigidly applying a range of sentences in cases involving drinking causing death” and that in recent years there has been anupward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed tosociety’s abhorrence for the often-tragic circumstances that result when individuals choose to drink and drive, thereby putting the livesand safety of others at risk. [33] A year later, the same court in R. v. Kummer 2011 ONCA 39 , 2011 O.J. No. 234 again noted an increase insentences.

The court stated: “As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate itsintractability, the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences offour and five years for such offences in R. v. Ramage and R. v. Junkert.” In both of those cases, the accused was a first time offender. The court went on to say that, the sentences in Ramage and Junkert are notto be seen as a cap; again, cautioning against thinking rigidly about sentence ranges in drinking and driving cases.

In Kummer, the Courtof Appeal upheld an 8-year sentence. [34] There is no dispute as to the principles that must be applied in this case. Sentences for drinking and driving offences that resultin death must emphasize the aims of general deterrence and denunciation. [35] For decades, the courts have made observations and comments about the carnage, pain and suffering, caused by drunk drivers. Yet, people continue to drink and drive and to kill; causing immeasurable pain and suffering to those whose lives are forever affected bytheir selfish decisions.

[36] The continued prevalence of this offence only serves to illustrate that the courts must continue to emphasize general deterrence,denunciation, and aim to unequivocally deliver the message that this is criminal behaviour, which will carry significant legalconsequences. However, the other principles and objectives of sentencing cannot be ignored. Rehabilitation and specific deterrence arealso very important. Often in these cases, particularly because many involve first time offenders, there is a balancing of competinginterests that must be done.

Analysis: [37] Begin by characterizing the relevant facts and circumstances as aggravating or mitigating. [38] There are numerous aggravating circumstances surrounding the collision including the following: • it occurred in the early morning; • the road conditions were good and there was nothing unusual; • the accused failed to stop; • there is evidence of speeding; • there is no evidence of braking, or any avoidance steering; • eight minutes after the collision when the police arrived, the accused was sitting in his car, smoking a cigarette. [39] There are also a number of other aggravating factors including: • The breathalyser readings were more than twice the legal limit. • The accused’s driving record, while only 24 years old at the time of offence, he had accumulated 10 demerit points, andbeen convicted of five Highway Traffic Act offences from 2007 to 2012 – including three speeding offences. • That after being detained for some time, he was released on bail and breached a crucial condition.

This was not, what issometimes referred to as a technical breach, but a breach of a core condition of his release. • Then after breaching, he deliberately lied to authorities, including representatives of Recover Science Corporation, again in breachof one of his release conditions, and then to the Probation Officer preparing his pre- sentence report.

He also tampered with thealcohol-monitoring bracelet in an attempt to conceal his breach. • And of course, the tragic consequences, which resulted in the lost of a life and so many others, being forever changed. [45] There are also some mitigating factors, including that Mr Outifrakh is a young man with no prior criminal record who hasplead guilty and accepted responsibility for his actions. He has expressed remorse and demonstrates insight into his actions and theirconsequences. He now appears willing to address any issues he may have and overall had led a relatively pro social life until theseoffences.

He is also fortunate to have a supportive family who will continue to support him and assist him with his rehabilitation. [46] All of these factors must be balanced and due consideration must be given to the principles and objectives of sentencing. [47] After having done so, I have determined that a sentence of four year and nine months is appropriate. This is a substantialsentence for a young man without any prior convictions but Mr Outifrakh chose to drive while impaired that morning withoutconsideration to the fact he was endangering the life of others.

While it is often said that drunk drivers do not intentionally set out toinjury or kill someone, perhaps it is time to recognize that although there may be some truth to that statement, the reality is that drunkdrivers set out without any consideration of the fact that they may injure or kill someone. As the crown submitted anyone over the ageof ten, knows that drunk driving kills and when someone drives drunk they are ignoring the reality , choosing not to care and demonstrating a complete disregard for the safety of others.

Their very high level of moral blameworthiness must be recognized andreflected in the sentences imposed. In this particular case had it not been for the breach of recognizance, I would have been inclined toimpose a sentence in the range of 4 to 4 1/2 years, but I find the breach extremely aggravating and believe the sentence must be increasedto reflect its seriousness. [49] Turning to the issue of pre trial custody. The time from Mr. Outifrakh’s arrest to his release on bail is a period of 106 days, being from March 10th 2013 to June 24th 2013.

This time period is to be credited at 1.5 for 1, for a credit of 159 days. The period from January 10th 2014, when he was arrested for breaching his release conditions until the sentencing hearing on July 25th 2014 is a period of196 days. He light of the fact Mr Outifrakh was in custody because of breaches, enhanced custody is not appropriate and the credit willbe one for one. However from the sentencing hearing date to today’s date I am prepared to give him enhanced credit that is a period of20 days, at 1.5 for 1 for an additional credit of 30 days. [50] Defence counsel has requested that Mr.

Outifrakh be given credit for the time he spent on bail, while crown counsel submits nocredit should be given. In R. v.

Downes (ON CA), 2006 CanLII3957 (ON CA), Justice Rosenberg held that time spentunder stringent bail conditions especially under house arrest must be taken into account as a relevant mitigating factor, however he notedthat the amount of credit to be given for this time period is within the discretion of the trial judge and will depend on a number of factors.These factors include the length of time under house arrest, the stringency of the conditions, the impact on the offender’s liberty, and theability of the offender to carry on normal relationships, employment and activities.

[50] Mr. Outifrakh’ bail conditions included that he not be away from his residence except in the presence of one of his sureties and as previously mentioned he was to be subject to alcohol and GPS monitoring by Recovery Science Corporation at all times. His other bail conditions were not particularly onerous and were the more standard conditions including; kpgb, not drive a motor vehicle, abstain from the consumption of alcohol and non-prescription drugs, and remain within the jurisdiction of the city of Ottawa. No specific evidence was presented to the court on the impact these conditions had on Mr.

Outifrakh, however the court may infer by their very nature that they would have had some impact on his liberty. Mr. Outifrakh was subject to these conditions for 200 days, before he breached and returned to custody. While he did breach his conditions, he had been subject to these conditions for 200 days without any allegation of breach and I find some credit must be assigned for that period of time. In the circumstances and without further evidence I am prepared to give Mr Outifrakh credit of approximately one third to one or 70 days for the 200 days under bail conditions. Therefore, Mr.

Outifrakh has a total pre trial credit of 455 days. Four year and nine months or 1730 days minus 455 days equals 1275 days or approximately 3 1/2 years. The sentence on the breach will be 4 months concurrent. [51] In addition Mr. Outifrakh will be prohibited from operating a motor vehicle for a period of 12 years. There will also be an order that Mr. Outifrakh is to provide forthwith a sample of his DNA. [52] Given that Mr. Outifrakh will be incarcerated for a substantial period and will then require some time to re-establish himself the victim fine surcharge is waived .

Released: August 15, 2014 ________________________________ The Honourable Justice Ann M. Alder