R. v. Devos, 2022 MBKB 185

Date: 20220929 Docket: CR 19-03-00497 (Portage la Prairie Centre) Indexed as: R. v. Devos Cited as: 2022 MBKB 185 COURT OF KING'S BENCH OF MANITOBA (GENERAL DIVISION) B E T W E E N: Appearances/Counsel HIS MAJESTY THE KING ) JAY FUNKE ) for the Crown ) - and - ) ) ) KYLE NOLAN DEVOS, ) RYAN AMY Accused. ) for the Accused ) ) ) JUDGMENT DELIVERED: ) September 29, 2022 LEVEN J.

SUMMARY [ 1 ] The offender was convicted of driving impaired causing death and dangerous driving causing death. After consuming alcohol, he used his truck to do “donuts” in a frozen field at night. The truck flipped, and the passenger was killed. The passenger was the best friend of the offender. At the time of the incident, the offender was 18 and had a clean record. The Pre-Sentence Report (“PSR”) said he was a very low risk to re-offend. He doesn’t have any sort of substance-abuse problem.

He expressed sincere remorse, and he filed 129 Character Letters (the “Letters”), attesting to his kindness, empathy and integrity. [ 2 ] The Crown requested a sentence of four years, plus a 5 to 10-year driving prohibition. The defence requested three years of supervised probation or, in the alternative, an intermittent sentence of up to 90 days. For reasons explained below, I sentence the offender to six months in prison, followed by three years of supervised probation, and a two-year driving prohibition. BACKGROUND [ 3 ] On a cold, winter’s night in 2018, the offender had a few drinks at a party.

He later told the police that he drank shortly before leaving the party. He got into his truck. His best friend (who was then 15) was the only passenger. The passenger didn’t wear a seatbelt. The offender drove his truck in a frozen, rutted field, so as to deliberately spin it. He later told the police that he did this for fun. The evidence was that the truck fishtailed and flipped over.

One of the Crown’s expert witnesses said the truck was going about 50-64 km/hour when it flipped . [ 4 ] About two hours after the incident, the offender took two breathalyzer tests, and his blood alcohol level was exactly .08 on both.

[ 5 ] At the time of the incident, the offender was still subject to a graduated licencing program, which prohibited him from driving with any blood alcohol at all. [ 6 ] Because of evidence of “bolus drinking”, the offender was acquitted of driving over .08. [ 7 ] However, because there was no dispute that he had a few drinks before he drove, and no dispute that his blood alcohol was exactly .08 a couple hours after the incident, and because his extremely poor judgment was an objective sign of impairment, he was convicted of impaired driving causing death.

Because his driving choices were a marked departure from the standard of care which a reasonable person would have exercised under the circumstances, he was also convicted of dangerous driving causing death. [ 8 ] As explained below, impaired driving offences are very serious, and courts have been moving in the direction of imposing harsher sentences for such offences. A 2010 Manitoba Court of Appeal decision commented that the range for first-time offenders convicted of impaired driving causing death is about two to five years in prison.

THE LETTERS [ 9 ] As noted above, the offender filed 129 Character Letters (the “Letters”). They were written by an exceptionally diverse range of people, including friends and relatives, but also a variety of people who have interacted with the offender over the years, ranging from his former high school principal to young adults who have known the offender as their hockey coach. Many letters used the word “accident” to describe the incident.

Many letters used the phrase “driving causing death” (without using the precise terminology used in the Criminal Code , RSC 1985, c C-46 [the “ Code ”]). [ 10 ] The letter from the high school principal concluded: Kyle will spend the rest of his life facing the consequences of his actions. His community would benefit from hearing from him about his experience – especially in our local high schools. We would benefit from the hours of community service that he can provide to our community teams and clubs. Kyle has a lot to offer and is committed to repaying his community and the [family of the deceased].

The best place for him to do that is in his home community. [ 11 ] Many letters mention the offender’s exceptionally strong work ethic. Some letters mention how the parents of the deceased have forgiven the offender. Many mention his extensive volunteer work, both formal (coaching and refereeing kids’ sports) and informal (helping elderly neighbors). Even more significantly, many of the letters mention the offender’s personality traits, including kindness, empathy, integrity, generosity and humility. Many letters mention the offender’s extreme remorse.

Each letter was unique; they were obviously not “cookie cutter” letters written from a common script. [ 12 ] The offender addressed the court briefly. He apologized to the family of the deceased. He said he would live with the pain of what he did for the rest of his life. He said that he missed the deceased with all his heart. [ 13 ] The parents of the deceased were granted leave to participate in the sentencing hearing by teleconference. They made a brief victim impact statement. The parents expressed their profound grief but also expressed their support for the offender.

THE PSR [ 14 ] As noted above, the PSR said that the offender was a very low risk to reoffend. It said that the offender expressed remorse. The PSR used the word “accident” a number of times. [ 15 ] The PSR recommended that the offender be granted the opportunity of a community-based sentence: There is a valuable lesson for others with his sharing his experience/story. Exploring the possibility of partnering with Manitoba Public Insurance with their Drivers Ed program has substantial merit. Mr.

Devos’ speaking with other impressionable young people/drivers would also pay tribute to the victim – ensuring his young life and tragic loss are never forgotten. CRIMINAL CODE [ 16 ] Relevant sections of the Code include: Purpose 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; (

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 or to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [underlining added] Other sentencing principles 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, and, without limiting the generality of the foregoing, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. … Making of probation order 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. … Compulsory conditions of probation order 732.1

(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following: (

a) keep the peace and be of good behaviour; … (

b) appear before the court when required to do so by the court; and (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. … Optional conditions of probation order

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: (

a) report to a probation officer (

i) within two working days, or such longer period as the court directs, after the making of the probation order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer; … (

b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

(

c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; (c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance; … (

f) perform up to 240 hours of community service over a period not exceeding eighteen months; … (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. … Coming into force of order 732.2

(1) A probation order comes into force (

a) on the date on which the order is made; (

b) where the offender is sentenced to imprisonment under paragraph 731(1)(

b) or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or (

c) where the offender is under a conditional sentence order, at the expiration of the conditional sentence order. Duration of order and limit on term of order

(2) Subject to subsection (5), (

a) where an offender who is bound by a probation order is convicted of an offence, including an offence under

section 733.1, or is imprisoned under paragraph 731(1)(

b) in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and (

b) no probation order shall continue in force for more than three years after the date on which the order came into force. CROWN AND OTHER CASE LAW [ 17 ] In R. v. Lacasse , 2015 SCC 64 , the 20-year-old offender got drunk, sped, lost control, and killed his two passengers. He pled guilty to two counts of impaired driving cause death. He had no criminal record. At paragraph 5, the majority pointed out that deterrence and denunciation must be emphasized.

At paragraph 7, the majority observed that, despite “countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada”. At paragraph 60, the majority commented that “sentencing ranges are primarily guidelines, and not hard and fast rules”. [ 18 ] Much of the Supreme Court’s analysis focused on the deference that appeal courts should show towards sentencing courts. In the end, based on such deference, the court upheld the original sentence of six and a half years. [ 19 ] R. v.

Ruizfuentes , 2010 MBCA 90 (“ Ruizfuentes ”) is a leading case on impaired driving causing death. In this case, the 41- year-old offender had a truly terrible record of 13 highway traffic offences. He had one criminal conviction (for violating discharge conditions nine years before the incident). He got very drunk, sped, blew through three red lights, and finally killed another driver. He pled guilty to one count of impaired driving cause death. The Crown argued for five years in prison.

The defence argued for 18-24 months. [ 20 ] At paragraph 22, the appeal court observed: As a result of recent amendments [to the Code ] and the review of the case law, I conclude that the regular range of sentences for offenders who commit the crime of impaired driving casing death and who have no prior convictions for drinking and driving or serious personal injury offences should be increased to a range of two to five years. … As for driving prohibitions, the cases show that for first offenders, the range is three to ten years… Of course, these ranges are but guidelines and, as was very recently explained in R. v.

McCowan (K.J.), 2010 MBCA 45 , 251 Man.R. (2d) 295 by Steel J.A. (at para. 11): … Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for the imposition of similar penalties for similar offences… But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentences in any given case. …

[underlining added] [ 21 ] At paragraph 33, the appeal court pointed out that, in cases of impaired driving cause death, the paramount sentencing objectives are denunciation and deterrence. [ 22 ] In Ruizfuentes , the appeal court concluded that four and a half years of imprisonment, and a seven and a half year driving prohibition would be appropriate. [ 23 ] R. v. Smoke , 2014 MBCA 91 , was a more recent Manitoba Court of Appeal decision.

The 18-year-old offender pled guilty to one count of impaired driving cause death, two counts of impaired driving cause bodily harm, and one count of failing to stop at the scene of an accident. The offender got very drunk, sped, blew through four red lights, blew through a fifth light and hit a vehicle. A pedestrian died, three people were injured, and the offender fled the scene. The offender was Indigenous. He had a limited, unrelated youth criminal record.

At paragraph 46, the appeal court focused on the offender’s youth and pointed out that “a youthful offender is usually shown some leniency in sentencing as compared to a more mature offender”. At paragraph 47, the court focused on the offender’s Indigenous background. [ 24 ] Considering the mitigating and aggravating circumstances, the appeal court concluded that a sentence of four and a half years for the impaired cause death, plus one year consecutive for the fail to stop (a total of five and a half years) would be appropriate.

The sentence also included 20 months concurrent for each of the impaired cause bodily harm offences, which would not add to the five and a half years total. [ 25 ] R v Sinclair , 2021 MBCA 6 , was a very recent Manitoba Court of Appeal decision. The Indigenous offender pled guilty to possess property obtained by crime over $5,000, dangerous operation of a conveyance, operation of a conveyance while impaired, flight from peace officer, and fail to comply with conditions of recognizance and of probation. The decision didn’t mention her age.

After consuming Percocet and methamphetamine, and while under a driving prohibition, the offender drove a stolen vehicle, led police on a high-speed chase, drove the wrong way on one-way streets, and was apprehended after a violent struggle. She then violated her bail conditions and was rearrested. The offender had about 64 previous criminal convictions. The appeal court upheld the global sentence of three and a half years in prison.

The breakdown was three years concurrent on flight and dangerous operation, six months concurrent on possess property and impaired operation, and six months consecutive on the two breaches. [ 26 ] R. v. Eckert , 2006 MBCA 6 , was a sentence appeal regarding dangerous driving causing death. The offender had consumed some alcohol, but the decision only dealt with dangerous driving. The Crown argued for a prison sentence of two years less a day. The defence argued for a conditional sentence (of two years less a day).

The offender had a truly awful driving history, including 11 speeding convictions and a licence suspension. He was convicted of speeding a few months after the dangerous driving incident. He was also charged with unrelated charges for assault and mischief before the sentencing appeal hearing. The Court of Appeal agreed with the Crown. The facts were obviously different from those in the case at bar, but this case does at least shed some light on appropriate sentences for dangerous driving cause death. [ 27 ] R. v.

Hansell, 2015 MBQB 109 , was a sentencing for dangerous driving causing death, and driving over .08 causing death. The offender had a blood alcohol level of 100-120 milligrams per 100 millilitres. The offender was driving and texting, and the texting was the main cause of the incident. The offender was only 19; he had no criminal record; and he had only one highway traffic conviction. Part-way through the trial, he entered a guilty plea. The court considered Ruizfuenetes, but observed that Ruizfuentes didn’t involve a 19-year-old offender.

The court sentenced the offender to 26 months concurrent for each offence (drive over .08 and dangerous driving). [ 28 ] R. v. Recksiedler, 2017 MBQB 121 (“ Recksiedler ”) , was a sentencing for dangerous driving causing death. The offender was 29. He had a criminal record, for assault, and for driving over .08 (twice). He had consumed some alcohol, but the decision didn’t mention a blood alcohol reading. The culprit was fatigue. The offender knew that he was very tired, and he was warned that he shouldn’t drive in that state.

Nonetheless, he decided to drive; he blew through a red light, and he killed a pedestrian. The court sentenced him to one year in prison; followed by two years of supervised probation, a two-year driving prohibition, and 100 hours of community service. [ 29 ] R. v. Coutu , 2016 MBQB 5 (“ Coutu ”) , was an unusual sentencing, for driving impaired causing death, break and enter and assault, and mischief. The offender was 35. The decision didn’t mention a blood alcohol level, but the court did describe the impairment as minimal. The court noted that the only mitigating factor was remorse.

The court sentenced the offender to 18 months for the driving offence, plus six months consecutive for the break and enter, and two months concurrent for mischief (a total of 24 months), followed by one year of supervised probation, and a 30-month driving prohibition. [ 30 ] R v Shrivastava, 2019 ABQB 663 (“ Shrivastava ”) , was about a fit sentence for sexual assault. The Crown cited this case for its general comments about good character as a potential mitigating factor in sentencing. At paragraphs 70-93, the court discussed this factor.

At paragraph 72, the court commented that good “character has long been accepted as a potential mitigating factor on sentence”. [ 31 ] The court in Shrivastava was dealing with sexual assault, an offence which is usually committed in private. In that context, the court observed at paragraph 96 that positive “conduct witnessed by others is of limited utility in sentencing an offence committed in secret”. [ 32 ] Relying on American academic authorities, the court in Shrivastava also minimized the use of an offender’s record of volunteerism.

At paragraph 80, the court commented that people “with financial means have a higher rate of participation in volunteer work while those who struggle economically have less freedom to donate their time”. The court added that: Like so many other features associated with “good character”, reliance on volunteerism as evidence of good character has the potential to operate as a systemic bias based on socioeconomic status.

[33] R. v. Altiman, 2019 ONCA 511 (“Altiman”), involved a 31-year-old, Indigenous offender who got extremely drunk, sped, ran ared light, killed two people, and severely injured two others. At the time of impact, the offender was driving 187 km/hour. He had nohighway traffic or criminal record. The offender pled guilty. He volunteered a lot of time to coach sports teams. The court commentedupon the general trend for impaired driving sentences to become longer. In the end, the appeal court held that a seven-year sentence wasappropriate.

There would also be an eight-year driving prohibition to start at the end of the prison sentence. [34] In R. v. Stevens, 2017 ONCA 686, the offender was convicted of impaired driving cause death and dangerous driving causedeath. The offender admitted to using cocaine the night before the incident. She had a dated criminal record. The offender had a lack ofinsight into her drinking problem. Following the incident, she breached her recognizance.

The appeal court concluded that six yearsimprisonment (six years for impaired driving and a concurrent six years for dangerous driving) would be appropriate. [35] R v Siwicki, 2019 MBCA 104, was a case dealing with criminal negligence cause death. The 62-year-old offender’s elderlymother fell out of bed and was unable to get up off the floor. For 26 days, the offender provided her with water and nutritional drinks,but didn’t try to get help to get her off the floor. She died of bedsores and prolonged immobility. The offender pled guilty, had nocriminal record, and was a very low risk to re-offend.

At paragraph 46, the majority made the general comment that, “the greater thedegree of recklessness or willful blindness, the greater the moral culpability”. At paragraph 63, the majority observed that deterrenceand denunciation were the primary sentencing principles in that case. The offender had served two months between sentencing and theappeal hearing.

The majority of the appeal court sentenced the offender to two years in prison, minus pre-sentence custody and minusthe two months served before the appeal, for a total of 21 months after the appeal decision. [36] R v Burnett, 2017 MBCA 122 (“Burnett”), was tendered by the Crown because of its discussion of “exceptional circumstances”. The 23-year-old offender pled guilty to breaking and entering and stealing a firearm. He had a minor criminal record and a steady job. He did not cooperate with police after arrest (he wouldn’t help them locate the stolen gun).

The sentencing judge felt that this was acase of “exceptional circumstances”. The offender was sentenced to 90-days intermittent, and he served the full sentence before theappeal hearing. He was described as a “model inmate”. One issue the appeal court had to grapple with was the option of sending theoffender back to prison if it felt that the sentence had been too lenient. [37] In Burnett, at paragraphs 21-31, the court discussed the principle of “exceptional circumstances”.

At paragraph 22, the courtobserved that: …the practical effect of this sentencing principle is that it acts as a safety valve for the justice system in the “rare case” where thecircumstances are “above and beyond the norm” … [38] At paragraphs 25-26, the court pointed out that sentencing judges have general discretion, and that they don’t have to find“exceptional circumstances” in order to impose sentences more lenient than the usual range for similar offences. [39] In Burnett, at paragraph 28, the court pointed out that, “Exceptional circumstances can arise from the way in which an offence iscommitted or from the circumstances of the offender or a combination thereof…”.

At paragraph 29, the court added that “findings ofexceptional circumstances occur only in the clearest of cases where there are “multiple mitigating factors” of significance…”. [40] In Burnett, at paragraph 33, the court concluded: The personal circumstances that the sentencing judge cited in his reasons to justify the sentence imposed – youth, general law-abidingattitude, strong support from others, employment and possible job loss by a lengthy custodial sentence – are factors common to manyoffenders and appropriate factors to take into account to mitigate sentence. …I see nothing extraordinary as to the accused’s personalcircumstances. … Sentencing courts must take care not to conflate “sympathetic circumstances” with “exceptional circumstances”… [41] In Burnett, at paragraph 43, the appeal court concluded that a sentence of 18 months in prison and a fine of $4,000 would havebeen appropriate, however, as the offender had already completed his 90-days-intermittent, the court did not wish to send him back toprison.

Therefore, it added the $4,000 fine to the time he had already served. DEFENCE CASE LAW [42] R. v. Priest, (ON CA), involved sentencing for break, enter and theft. The 19-year-old offender had nocriminal record and no lawyer. He confessed immediately and pled guilty. There were no aggravating factors, and no PSR. The Crownasked for 30-60 days. The appeal court focused on the fact that the offender was a youthful first offender. It also noted that there was noPSR.

It concluded that a sentence of time already served (about five weeks) plus one year of supervised probation would be appropriate. [43] R v Beringer, 2022 ABPC 44 (“Beringer”), was about sentencing for robbery (with a knife) and uttering threats. The 22-year-old offender had no criminal record. She expressed remorse and pled guilty. At paragraph 36, the court commented: “Theindividualization aspect of proportionality sentencing sometimes demands a sentence that has never been imposed in the past for asimilar offence…”.

The court sentenced the offender to 90 days for the robbery (and 90 days concurrent for the utter threats), to befollowed by 18 months of probation. [44] R. v. Manty (C.), 2006 MBCA 25 (“Manty”), was a pre-Ruizfuentes conviction for dangerous driving cause death (three counts)and dangerous driving cause bodily harm (one count). The 22-year-old offender had no record. There was no alcohol involved and theoffender was not speeding. Inexplicably, he ran a stop sign and struck another vehicle. The three people in the other vehicle were killed.

The offender was given a suspended sentence, two years probation, a driving prohibition and 100 hours of community service. The

offender abandoned his sentence appeal. [ 45 ] R. v. Shoyoye , 2015 MBQB 72 (“ Shoyoye ”) , was a sentencing for dangerous driving cause death and dangerous driving cause bodily harm. The Crown asked for jail time and near the maximum driving prohibition of 10 years. This was an unusual case of “gas pedal misapplication” (the driver intended to brake but panicked and applied the gas instead). In the seven years before the incident, the driver was involved in 10 traffic accidents (and was 100% at fault for seven). He also committed five highway traffic offences.

Even after the incident, he was at fault for another accident and committed two other driving offences. He had no criminal record, a full-time job, and he felt obvious remorse. For dangerous driving cause death, the court sentenced him to 90-days intermittent followed by two years supervised probation (including 120 hours community service), and an eight year driving prohibition. The sentence for dangerous driving cause bodily harm was concurrent. [ 46 ] R. v Smith , 2017 MBPC 16 , was a sentencing for fail to provide breath sample (after a collision resulting in a death).

The offender was Indigenous, and his grandparents had all attended residential schools. He had a “very limited” prior record. He had already spent 20 days in custody. The court concluded that 120 days would be appropriate, so it sentenced the offender to 90-days intermittent going forward, plus 18-months supervised probation (including a curfew), plus a one-year driving prohibition. The decision doesn’t mention the offender’s age, the details of his criminal record or his highway traffic record, if any.

ARGUMENT [ 47 ] The Crown relied on the range mentioned in Ruizfuentes (two to five years for first offenders) and asked for four years. The defence pointed to the many mitigating circumstances and asked for three years supervised probation or, in the alternative, 90-days intermittent. [ 48 ] The Crown strongly criticized the PSR. Among other things, the Crown pounced upon the use of the word “accident” in the PSR. The Crown pointed out that there is a difference between a criminal offence and an accident. [ 49 ] The Crown criticized the Letters.

The Crown correctly pointed out that none of the Letters used the terminology used in the Code . Many simply mentioned “driving cause death”. The Crown pointed out that some of the Letters used the word “accident”. [ 50 ] The Crown emphasized the sentencing objectives of denunciation and deterrence. The Crown argued that the facts of this case simply do not constitute “exceptional circumstances”.

Therefore, sentencing should be in the Ruizfuentes range (two to five years). [ 51 ] Defence counsel pointed out that the word “accident” is commonly used in a non-technical sense to refer to motor vehicles collisions (or rollovers). It is obvious that the letter writers and the author of the PSR all knew that the offender had been convicted of a crime. [ 52 ] Defence counsel pointed out that non-lawyers cannot be expected to know the exact terminology used in the Code .

It is obvious from reading the letters that the writers all knew that the driving that caused the fatal rollover was at least “dangerous”. [ 53 ] Defence counsel argued that, even when denunciation and deterrence are paramount, rehabilitation still has some relevance. There is no dispute that, under

section 718.1 of the Code , the primary imperative is proportionality. [ 54 ] Defence counsel referred to the comment in Beringer : “The individualization aspect of proportionality sentencing sometimes demands a sentence that has never been imposed in the past for a similar offence…”. [ 55 ] Defence counsel also pointed out that the offender lives in rural Manitoba, where there is no public transit and no taxis. He works full-time so, while subject to a driving prohibition, he would rely on the kindness of friends and relatives to drive him to and from work. He also helps his parents on their dairy farm.

While subject to a driving prohibition, he could not drive farm vehicles on their farm. DECISION [ 56 ] Abraham Lincoln commented: “I have always found that mercy bears richer fruits than strict justice”. [ 57 ] I am obviously bound by the rulings of the Manitoba Court of Appeal, including Ruizfuentes , which sets out a regular range of sentences for first-time offenders convicted of offences like impaired driving cause death. However, the court also reminds us: “Of course, these ranges are but guidelines…”. [ 58 ] Recall the facts in Ruizfuentes .

The offender was 41; he had 13 prior highway traffic convictions and one prior criminal conviction; he got very drunk and blew through three red lights. It was only a matter of luck that just one person was killed. He got four and a half years. [ 59 ] Contrast that to our case. Our offender was 18. He had no highway traffic or criminal convictions. He was impaired, but was acquitted of driving over .08. He was not driving on a public roadway, so the only potential danger was to himself and his single passenger. Comparing Mr. Devos and Mr.

Ruizfuentes, if the latter only deserved four and half years in prison, it is fairly obvious that the former does not deserve four years in prison. [ 60 ] Indeed, a close reading of the above cases is revealing. For the sake of brevity, I have not quoted all pertinent passages from all cases. However, counsel can rest assured that I have read them all carefully and have considered all facets of each case. [ 61 ] The only rule is that no two cases are exactly the same. No case is precisely on point with our case.

For example, in Recksiedler , the offender was 29 and was sentenced to one year in prison and two years probation. However, although he did consume some alcohol, he was only convicted of dangerous driving (not impaired driving).

[ 62 ] In Coutu , the offender was convicted of impaired driving cause death, but also of break and enter and assault, and mischief. The court called his impairment “minimal”. The court commented that the only mitigating circumstance was remorse. The sentence was 18 months for the driving offence, and other penalties for the other offences. [ 63 ] Shoyoye was an unusual case of “gas pedal misapplication”. However, the offender was convicted of dangerous driving cause death and cause bodily harm. Furthermore, he had an almost unbelievably terrible record of highway traffic convictions and of causing accidents.

He was sentenced to 90-days intermittent, followed by two years supervised probation (including 120 hours community service), and an eight year driving prohibition. [ 64 ] As I said, no two cases are identical. [ 65 ] Some cases don’t mention the age of the offender, but most do. Other than the offender in Smoke , Mr. Devos is the only 18- year-old. [ 66 ] Of the driving cases that mention previous highway traffic and criminal records, only Altiman and Manty mention that the offenders had no highway traffic or criminal records. [ 67 ] It is no surprise that none of the cases mentioned 129 Character Letters.

It is a safe assumption that this is an unusual (if not unique) feature of our case. [ 68 ] I agree with defence counsel that nothing turns on the fact that some letters use the word “accident” and that none use the precise terminology from the Code to describe the offences. [ 69 ] The Letters make it clear that Mr. Devos does a large amount of volunteer work. The Crown included the Shrivastava case to minimize the importance of volunteer work. Some academic sources have tried to draw a connection between volunteer work and class privilege.

Of course, Shrivastava was a sexual assault case, and the court focused to some extent on the fact that much volunteer work is done in public while most sexual assaults happened in private. It is true that some wealthy individuals have ample free time and use some of that free time for volunteer work. It is also true that some “working poor” with family responsibilities have almost no free time. However, individuals are not mere stereotypes. Sadly, there are many people of means who do no volunteer work at all.

Also, there are people of modest means who do a great deal of volunteer work. [ 70 ] The Letters make it clear that Mr. Devos makes it a priority in his life to do a substantial amount of volunteer work, and it would be unfair not to give him credit for that commendable fact. [ 71 ] However, what I found most significant about the Letters was not how they documented Mr. Devos’ volunteer work, but how they documented his character. I am not using “character” in the narrow sense of being a “respectable” person from a “respectable” family.

I am using it to describe essential traits – the essential measure of a man. [ 72 ] The Letters make it clear that Mr. Devos is, in his very essence, a young man of kindness, empathy, integrity, and generosity. It would be unfair to simply ignore these essential facts in crafting a just and proportional sentence. [ 73 ] It is not necessary to label this an “exceptional case”. As the court pointed out in Burnett , sentencing courts have discretion to craft sentences outside of regular sentencing ranges even when a case is not “exceptional”. [ 74 ] Mr. Devos did not plead guilty.

However, to be fair, he raised what turned out to be a valid legal defence to the charge of driving over .08 causing death. [ 75 ] What Mr. Devos did on the night in question was a crime. His behaviour was not just foolish; it was criminal. However, when compared with the details set out in some of the driving cases above, his crime was not nearly as outrageous as some of the others. [ 76 ] In short, it is difficult to conceive of a scenario in which an adult was convicted of impaired driving and dangerous driving cause death, and in which the offender had more mitigating circumstances than Mr. Devos.

Absent Gladue factors, it is difficult to conceive of a more sympathetic case. [ 77 ] Denunciation and deterrence are the most important factors. Because of those factors, a period of incarceration is called for. [ 78 ] However, rehabilitation cannot be ignored altogether. It must have some role to play in a proportionality analysis. [ 79 ] This is the rare case with extremely unusual (if not unique) facts that justify a sentence well outside the Ruizfuentes range. [ 80 ] For these reasons, I sentence Mr.

Devos to six months of incarceration, to be followed by a period of three years supervised probation, with all of the statutory probation conditions. In addition, there shall be conditions that Mr. Devos report to his probation officer as directed and complete 200 hours of community service as directed by his probation officer. It is the hope of the court that this will include significant time spent in talking with young people about the importance of safe driving. [ 81 ] To be precise, the sentence is six months and probation for impaired driving, and six months concurrent for dangerous driving. [ 82 ] Mr.

Devos was subject to an administrative driving suspension of one year and three months in 2018-2019. [ 83 ] I am mindful of the comments by defence counsel that there is no public transit in rural Manitoba. As part of his sentence Mr. Devos shall be subject to a driving prohibition of two years (as was the case in Recksiedler ). [ 84 ] I thank counsel for their helpful and courteous submissions.

__________________________J.