R. v. Simpson, 2018 NLSC 197

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Simpson , 2018 NLSC 197 Date : October 11, 2018 Docket : 201706G0084 Her Majesty The Queen v. Kalil Glen Clayton Simpson Before: Justice Sandra R. Chaytor Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: September 25, 2018 Date of Judgment: October 11, 2018

Summary: The offender was convicted of operating a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood and causing an accident resulting in bodily harm to the passenger in his vehicle, contrary to section 253(1) (

b) of the Criminal Code of Canada and punishable by section 255(2.1). The Court rejected the Defence proposal of a 90 day intermittent sentence and imposed a sentence of 4 months incarceration followed by a 2 year probationary period. A 2 year driving prohibition and a restitution order were also imposed. The Court considered mitigating factors including that the offender had no prior criminal record as well as aggravating factors including the offender’s high blood alcohol level and that he was drinking while operating the vehicle.

Appearances: Alison J. Manning Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Ipeelee, 2012 SCC 13; R. v. Lacasse, 2015 SCC 64; R. v. Pittman, (NL SC), [1998]N.J. No. 367, 173 Nfld. & P.E.I.R. 107 (Nfld. S.C. (T.D.)); R. v. Squires, (NL SC), [2001] N.J. No. 45, 198 Nfld. &P.E.I.R. 252 (NLSC); R. v. Anstey, 2013 NUCJ 25 , [2013] N.J. No. 30, 332 Nfld. & P.E.I.R 216 (NL Prov. Ct.); R. v.Melanson, [2003] N.J. No. 38, 222 Nfld. & P.E.I.R. 197 (NL Prov. Ct.); R. v. Clark, 2005 NLCA 23; R. v. O’Keefe, 2011 NLCA 41; R.v.

Armstrong, 2012 SKQB 428; R. v. Morton, [2013] N.J. No. 405, 345 Nfld. & P.E.I.R. 256 (NL Prov. Ct.); R. v. McCarthy, [2014] N.J.No. 344, 357 Nfld. & P.E.I.R. 170 (NL Prov. Ct.); R. v. Kerrivan, [2015] N.J. No. 369, 374 Nfld. & P.E.I.R. 151 (NL Prov. Ct.); R. v.George, 2016 NSCA 88; R. v. Mitchell, 2016 ONCJ 731; R. v. Fancy, [2007] N.J. No. 191, 74 W.C.B. (2d) 27 (NL Prov. Ct.); R. v.Colombe, [2010] N.J. No. 440, 312 Nfld. & P.E.I.R. 138 (NL Prov. Ct.); R. v. Pupo, 2016 ONCJ 733; R. v. Ramage, 2010 ONCA 488;R. v. Beaudry, 2007 SCC 5; R. v. Junkert, 2010 ONCA 549.

STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Highway Traffic Act, R.S.N.L. 1990, c. H-3. REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] Following a trial, Kalil Simpson, was convicted of operating a motor vehicle with a blood alcohol level in excess of 80milligrams of alcohol per 100 millilitres of blood and causing an accident resulting in bodily harm to the passenger in his vehicle,contrary to section 253(1)(

b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“the Code”) and punishable by section 255(2.1). [2] On July 19, 2016, Mr. Simpson was operating a motor vehicle along the main road between Grand Le Pierre and EnglishHarbour East with his friend, Dylan Hickey, as a passenger, when he lost control of the vehicle. The vehicle rolled over and landed on itsroof in a ditch. Both Mr. Hickey and Mr. Simpson sustained injuries requiring hospitalization. Dylan Hickey sustained a dislocated hipthat required a procedure under anesthetic to correct.

At the time of trial, he was continuing to have symptoms from this injury andremained under the care of an orthopedic specialist. Mr. Simpson’s injuries were more extensive and required hospitalization and anextended stay in a rehabilitation centre for approximately five months. [3] The Court accepted Mr. Hickey’s evidence that both he and Mr. Simpson were drinking throughout the afternoon whiledriving around the local area. An analysis of Mr. Simpson’s blood alcohol concentration taken in hospital over 2 hours post-accident,was calculated to be in the range of 189 to 236 mg percent at the time of the accident.

This was based on the assumption that he did notdrink in the half hour prior to or any time after the incident. The Court accepted Mr. Simpson’s evidence that he had one drink in the halfhour leading up to the accident which he estimated to be about one to one and one-half ounces. This would not have been fully absorbedinto his system and could not be contributing to his BAC, however, based on the evidence accepted at trial, including that of a forensicspecialist, subtracting this amount of alcohol. Mr.

Simpson was highly intoxicated at the time of this accident. issue [4] What is an appropriate sentence to be imposed upon Mr. Simpson? SENTENCING PARAMETERS AND PRINCIPLES [5] In arriving at an appropriate sentence, consideration must be given to the principles of sentencing set out in

section 718 of theCode: denunciation, deterrence, both general and specific, reparation to victim or the community, rehabilitation, and the promotion of asense of responsibility in offenders for the harm they have caused. [6] The principle of proportionality must also be borne in mind to ensure that a sentence is proportionate to the gravity of theoffence and the degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison

with sentences imposed for similar offences under similar circumstances. [ 7 ] In R. v. Ipeelee , 2012 SCC 13 , at para. 37 , LeBel, J. explained proportionality as follows: … Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. ... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 8 ] Furthermore,

section 718.2(

d) of the Code states that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances."

Section 718.2(

e) states that, “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” It is noted that a conditional sentence is no longer an option for the offence for which Mr. Simpson has been convicted. CIRCUMSTANCES OF OFFENDER Background and Pre-Sentence Report [ 9 ] In reaching this decision, I have considered Mr. Simpson’s personal circumstances. A pre-sentence report was completed to assist the Court. The information that follows is primarily derived from that report. Mr.

Simpson is 27 years of age and resides in Grand Le Pierre with his common law spouse. They are expecting their first child. Mr. Simpson was raised by his mother and maternal grandparents and was provided a good upbringing. He continues to have a close relationship with his grandparents and his mother. His father was not involved in his upbringing and he does not have a close relationship with him. [ 10 ] Mr. Simpson completed high school but has no post-secondary education or training. He has a relatively strong employment history.

At the time of the pre-sentence report, he was seasonally employed in the inshore fishing industry as a deckhand. This employment was expected to continue until this month. At the time of the sentencing hearing, a letter from his current employer was introduced into evidence which indicated that he is expected to be employed in the fishing industry until at least late December 2018. Mr. Simpson has also had employment in this province in the construction industry. From 2012 to 2015, he resided in Manitoba where he was employed within the construction and oil industry sectors. [ 11 ] Mr.

Simpson sustained serious injuries in the motor vehicle accident. He consequently spent approximately five months in hospital and a rehabilitation centre. He currently does not have any physical health issues and although he is experiencing anxiety with respect to his current situation, he is not suffering from any significant mental health issues and has no history of mental illness. [ 12 ] Mr. Simpson admits that a few months prior to the accident he was consuming about a dozen beer on a daily basis and acknowledges that his drinking was starting to become problematic.

He has not undergone any addiction counselling but since the accident, he reports refraining from the use of alcohol. He has had a prescription for medical marijuana for the past three years. He states that this drug helps him carry out his daily activities and with insomnia. [ 13 ] Mr. Simpson maintains his denial that he was impaired at the time of the accident and continues to rationalize his behavior. Criminal Record [ 14 ] I have considered that Mr.

Simpson has no prior criminal record. the crown’s position [ 15 ] The Crown proposes a sentence of six months incarceration followed by a two year period of probation and a two year driving prohibition. The Crown also seeks restitution in the amount of $22,810.25 on behalf of RSA (the insurer of the vehicle operated by Mr. Simpson at the time of the offence) for its payout with respect to the claim for the damage sustained to the vehicle. The Defence’S Position [ 16 ] The Defence proposes a sentence of 90 days to be served intermittently to allow Mr. Simpson to continue his employment in the fishing industry.

The Defence does not oppose the restitution order in the event that the intermittent sentence is imposed as that would permit Mr. Simpson to continue to work and pay the restitution order. The Defence agrees with the period of the driving prohibition and probation sought by the Crown. analysis [ 17 ] To determine an appropriate sentence, I must begin with what is statutorily prescribed with respect to the offence for which Mr. Simpson has been convicted. Mr. Simpson is convicted of one count of breach of section 253(1) (

b) of the Code punishable by section 255(2.1) , the maximum sentence for which is 10 years’ imprisonment. [ 18 ] I have considered the range of sentence imposed for this offence in cases with similar fact situations, including those submitted by counsel and the cases referenced within those cases. In considering a range of sentence, however, I am also guided by the words of Wagner, J. in R. v. Lacasse , 2015 SCC 64 at paragraph 60 where he noted that sentencing ranges are primarily guidelines and not hard and fast rules. Every sentencing is an individual exercise and depends upon its own unique facts and the circumstances of the specific offender.

[19] In R. v. Pittman, (NL SC), [1998] N.J. No. 367, 173 Nfld. & P.E.I.R. 107 (NLSC), Adams, J. at paragraph29, identified the range of sentencing for impaired driving causing bodily harm, broadly stated, as between 12 and 15 monthsincarceration. In R. v. Squires, (NL SC), [2001] N.J. No. 45, 198 Nfld. & P.E.I.R. 252 (NLSC), at paragraph 6,O’Regan, J. identified the range of sentence for the offence of impaired driving causing bodily harm as being between 6 to 15 months. InR. v. Anstey, 2013 NUCJ 25 , [2013] N.J. No. 30, 332 Nfld. & P.E.I.R 216 (NL Prov.

Ct.), Judge Gorman noted the range ofsentencing to be from 90 days intermittent to 2 years imprisonment. [20] In R. v. Squires, the offender was an admitted alcoholic and pled guilty to impaired operation of a motor vehicle causing bodilyharm as well as driving while disqualified. He was involved in a rear end collision. The driver of the other vehicle sustained a soft tissueinjury to his neck and back which interfered with his ability to work. Aggravating factors included the severity of the injury to the victim,the fact that Mr.

Squires was severely intoxicated with breathalyzer readings of 290 to 310 which I note are higher than that of Mr.Simpson. As well, Mr. Squires, unlike Mr. Simpson, had a prior criminal record. Mitigating factors in that case, which are not present inMr. Simpson’s case, included the guilty plea and that Mr. Squires had expressed genuine remorse for his actions. A sentence of 10months plus a term of probation of 2 years was imposed. [21] In R. v. Melanson, [2003] N.J. No. 38, 222 Nfld. & P.E.I.R. 197 (NL Prov.

Ct.), a 48 year old offender, with a BAC of morethan three times the legal limit, was convicted of impaired driving causing bodily harm after his vehicle struck a pedestrian who was notseriously injured. Aggravating circumstances in that case, which are not present in this case, were that Mr. Melanson left the scene of theaccident and had multiple prior convictions for drinking and driving offences. He had a BAC of more than three times the legal limit.Mitigating factors included that he had pled guilty and that he had an addictions problem that he acknowledged and was taking steps toaddress. Not unlike Mr.

Simpson, he had taken some responsibility for his actions but minimized his actions. The Defence adducedevidence that Mr. Melanson was an integral part of a business that depended on his skill to keep others employed. Nonetheless the Courtrejected a conditional sentence and imposed a period of incarceration of 12 months on the impaired driving causing bodily harm charge.In doing so, the Court noted the high risk of reoffending given the offender’s alcohol problem and past pattern of offences. [22] In R. v. Clark,

(2005) NLCA 23, the offender was involved in a motor vehicle accident and was convicted of impaired drivingcausing bodily harm to an occupant in the other vehicle. The Court of Appeal upheld an eight month conditional sentence followed by atwo year probationary period and two year driving prohibition. [23] In R. v. Fancy, [2007] N.J. No. 191, 74 W.C.B. (2d) 27 (NL Prov. Ct.), a 21 year old offender, with no prior convictions, pledguilty to the offences of having operated a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol per 100 millilitresof blood and impaired driving causing bodily harm, contrary to sections 253(1)(

b) and 255(2) of the Code. He drove a motorcycle off theroad and into a ditch seriously injuring a passenger on the motorcycle. Judge Gorman imposed a period of 90 days incarceration to beserved on an intermittent basis, a 3 year driving prohibition, and a 2 year period of probation. In sentencing, Judge Gorman referencedthe Crown’s lenient position on sentencing. The Crown had proposed 3 to 6 months and would not have been opposed to a conditionalsentence. [24] In R. v. Colombe, [2010] N.J. No. 440, 312 Nfld. & P.E.I.R. 138 (NL Prov. Ct.), Mr.

Colombe pled guilty to the offence ofimpaired driving causing bodily harm contrary to section 255(2) of the Code. He drove his vehicle into a ditch causing serious injuries toa passenger in his vehicle. A sentence of 9 months incarceration and a 2 year driving prohibition was imposed. It is noted in that case thatthe Crown and Defence were in agreement that an appropriate range of sentence would be 8 to 12 months but the Defence sought aconditional sentence. The victim in that case suffered more catastrophic injuries than that of Mr.

Hickey, including loss of use of bothlegs and partial loss of use of both arms. [25] In R. v. O’Keefe, 2011 NLCA 41 the offender was convicted of two counts of dangerous driving causing bodily harm followinga motor vehicle/pedestrian accident which caused injuries to two pedestrians. Although Mr. O’Keefe had consumed some alcohol as hedrove, he was not under the influence of alcohol such that it affected his ability to drive. The Court of Appeal upheld a sentence of sixmonths incarceration followed by two years’ probation and a driving prohibition of three years.

In doing so, it quoted portions of thesentencing decision of the trial judge which referenced the developing trend towards the imposition of periods of incarceration forserious driving offences resulting in bodily harm. [26] In R. v. Armstrong, 2012 SKQB 428, a 21 year old offender was convicted of two counts of impaired driving causing bodilyharm. While driving at an excessive rate of speed, he lost control of his vehicle and drove off the road. Both his passengers sustainedserious injury. His blood alcohol concentration was twice the legal limit. Mitigating factors in that case included that Mr.

Armstrong pledguilty, had no prior criminal record and was remorseful. A sentence was imposed of 4 months incarceration, 18 months’ probation, and a2 year driving prohibition. [27] In R. v. Morton, [2013] N.J. No. 405, 345 Nfld. & P.E.I.R. 256 (NL Prov. Ct.), the offender was convicted of causing anaccident resulting in bodily harm while his blood alcohol level exceeded the legal limit. Although Mr. Morton’s trial commenced, afterhearing a portion of the Crown’s evidence, he conceded the Crown had established his guilt and the matter proceeded to sentencing.

Insentencing, the Court considered this to be a case where a guilty plea was entered at the earliest opportunity. It is noted that, unlike Mr.Simpson, the BAC readings in that case were low. As well, the victim’s injuries were not substantial and the offender suffered fromPTSD. The Crown had sought a period of 90 days while the Defence sought a fine. Mr. Morton was sentenced to 90 days imprisonmentto be served intermittently in addition to a 3 year driving prohibition. [28] In R. v. Anstey, 2013 NUCJ 25 , [2013] N.J. No. 30, 332 Nfld. & P.E.I.R 216 (NL Prov.

Ct.), a 33 year old man withalcohol abuse issues was convicted of impaired driving causing bodily harm after an accident in which his vehicle rear ended another.Mr. Anstey was grossly intoxicated at the time of the accident. His victim suffered from chronic pain as a result of the accident. Mr.Anstey pled guilty and the Court accepted a joint submission of 90 days incarceration to be served intermittently, 2 years’ probation, andan 18 month driving prohibition. [29] R. v. McCarthy, [2014] N.J. No. 344, 357 Nfld. & P.E.I.R. 170 (NL Prov.

Ct.), the accused pled guilty to the offence of causingbodily harm while operating a motor vehicle with blood alcohol in excess of 80 mg percent. Mr. McCarthy had struck a pedestrian and

did not stop to check on him. He had a prior criminal record for property related offences. The Crown sought a sentence of 4 to 6 months while the Defence sought 90 days. A sentence of 90 days intermittent, a 2 year driving prohibition, and 2 years’ probation was imposed. The trial judge noted the mitigating factor of the accused having pled guilty. The judge also considered that the offender was working; had accepted responsibility for his actions; expressed remorse; showed empathy towards his victim; and had undertaken counseling for substance abuse. [ 30 ] In R. v. Kerrivan , [2015] N.J.

No. 369, 374 Nfld. & P.E.I.R. 151 (NL Prov. Ct.) , the accused pled guilty to impaired driving causing bodily harm following a motor vehicle/pedestrian accident. The victim’s injuries appeared to be of more permanence and impact than in the case at bar in that at the time of sentencing she had not been able to return to work. Mr. Kerrivan was a first time offender and of low risk to reoffend. He had gainful employment and took responsibility for his actions. He was remorseful and had consumed no alcohol since the accident. The offender’s blood alcohol readings were lower than that of Mr.

Simpson’s but an aggravating circumstance in that case was that the offender was a designated driver for others. The Court imposed a sentence of six months incarceration and two year driving prohibition. In doing so, the Court rejected the Defence’s proposal of an intermittent sentence of 90 days stating it would not have met the necessary principles of denunciation and general deterrence to dissuade like-minded individuals from driving drunk. [ 31 ] R. v. George , 2016 NSCA 88 , the accused pled guilty to impaired driving causing bodily harm as a result of an accident in which his then girlfriend was injured.

The trial judge had mistakenly imposed a suspended sentence which was not available for this offence. The Nova Scotia Court of Appeal imposed a sentence of 4 months incarceration and 12 months’ probation. The accused had represented that he had abstained from alcohol and was committed to remaining alcohol free but this was shown to have been a misrepresentation to the Court. [ 32 ] R. v.

Mitchell , 2016 ONCJ 731 , the accused, a 31 year old mother of three young children, with no prior criminal record, pled guilty and was convicted of two counts of impaired driving causing bodily harm after a motor vehicle accident in which she and two passengers were seriously injured. At the time of sentencing, she was undergoing rehabilitation and was extremely remorseful. Although the Court expressed sympathy for her situation, the Court noted the importance of deterrence and denunciation and the trend towards increased sentences for this type of offence.

She was sentenced to 16 months incarceration. [ 33 ] The fact situation in R. v. Pupo , 2016 ONCJ 733 , is similar to that of this case. Ms. Pupo and her friend had been drinking in a bar. They left together in a vehicle with the accused driving. An accident ensued in which the vehicle went into a ditch and flipped over. Both women were injured. The passenger sustained a broken pelvis requiring surgery and a dislocated knee. Ms. Pupo pled guilty and was convicted of driving over 80 and causing an accident that resulted in bodily harm. Ms.

Pupo’s blood alcohol level at the time of the accident was lower than that of Mr. Simpson being 129 mg in 100 ml of blood. Ms. Pupo was sentenced to 6 months imprisonment followed by two years’ probation and a 2 year driving prohibition. [ 34 ] Paragraph 718.2 (

a) of the Code requires a Court that imposes a sentence to take into consideration any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 35 ]

Section 255.1 of the Code provides that a blood alcohol reading greater than 160 milligrams is an aggravating factor. It states: Without limiting the generality of

section 718.2 , where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle… evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2 (a). [ 36 ] Christopher Keddy, a forensic specialist, gave evidence at trial that he conducted an analysis and found that Mr.

Simpson’s blood alcohol concentration at the time of the accident was in the range of 189 to 236 mg percent. Mr. Keddy also testified that each ounce of alcohol would give a theoretical maximum BAC to an individual of Mr. Simpson’s size of approximately 15.2 mg percent. The Court accepted Mr. Simpson’s evidence that he had consumed one to one and a half ounces of vodka in the half hour preceding the accident. Subtracting this from the range determined by Mr. Keddy (as the alcohol would not all be in Mr. Simpson’s system at the time of the accident), puts Mr.

Simpson’s BAC over 160 mg percent at the time of the accident. I find this to be an aggravating factor in this case pursuant to

section 255.1 . [ 37 ] I have also considered the following aggravating factors: the serious and continuing nature of the injuries sustained by Mr. Hickey and that Mr. Simpson was drinking as he drove the vehicle. [ 38 ] In reaching this decision, I have also considered the mitigating circumstances that Mr. Simpson is a first-time offender and that he has acknowledged that his drinking was becoming problematic at the time of the accident and reports to have refrained from the consumption of alcohol since.

I have also considered his personal circumstances including that he is gainfully employed and has the support of his family including his mother and his common law spouse who is expecting their first child, all of which bodes well for his potential for rehabilitation. [ 39 ] In terms of specific deterrence, I have also considered that Mr. Simpson sustained significant injuries as a result of his actions. In terms of a further consequence to Mr. Simpson arising out of his actions, I have also considered Defence counsel’s argument that pursuant to subsection 65(1.1) of the Highway Traffic Act , R.S.N.L. 1990, c.

H-3 (“the Act ”), Mr. Simpson is barred from holding a driver’s licence in this province for 10 years. In these circumstances, however, I am not persuaded to allow a concession on sentence in this criminal matter due to a provincially imposed sanction limiting a driving privilege. [ 40 ] In cases involving drinking and driving, Courts have emphasized the importance of the principles of denunciation and general deterrence so as to dissuade like-minded persons from driving while impaired ( R. v. Ramage , 2010 ONCA 488 ; R. v. Kerrivan , [2015] N.J. No. 369, 374 Nfld. & P.E.I.R. 151 (NL Prov. Ct.) ; R. v.

O’Keefe , 2011 NLCA 41 ).

[41] In R. v. Beaudry, 2007 SCC 5, the Supreme Court of Canada emphasized the seriousness of offences involving drinking anddriving and referred to such offences as being the crime which causes “the most significant social loss to the country. The Court statedas follows at paragraphs 41 and 42: 41. … To reemphasize the seriousness of offences associated with drunk driving, and as a caveat against trivializing them, I reproducewithout reservation the comment made by Cory J. in R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.

From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [para. 16] 42. The situation in Canada has improved since Cory J. made this damning observation, but only because both the authorities andsociety itself have made extensive efforts to raise public awareness and crack down on impaired driving. … [42] In R. v.

Junkert, 2010 ONCA 549 the Ontario Court of Appeal noted that in “recent years there has been an upward trend in thelength of sentences imposed for drinking and driving offences.

The reasons for this trend can be attributed to society’s abhorrence for theoften tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.” [43] Although in this case the victim may not be viewed as innocent as victims seen in many impaired driving cases insofar as Mr.Hickey was participating in the behavior of drinking in the vehicle the day of the accident, this does not diminish the fact that the actionsof Mr.

Simpson put in jeopardy the lives of all users of the roads that he drove through while drinking and driving on that fateful day. InR. v. Ramage, 2010 ONCA 488, the Ontario Court of Appeal emphasized that drinking and driving related offences are serious crimesthat must be treated as such by the courts, as “every drinking driver is a potential killer.” [44] I am not unsympathetic to Mr. Simpson’s situation. He has suffered substantially as a result of his actions in that he wasseverely injured and spent a significant period of time in rehabilitation following the accident. He is also about to become a father.

I amconcerned, however, that although Mr. Simpson has acknowledged his drinking at the time was becoming a problem and he has refrainedfrom drinking since, he does not appear to appreciate the gravity of his actions. He continues to try and rationalize his behavior instead oftaking full responsibility for having caused the injuries to Mr. Hickey and having potentially put the lives and well-being of others at riskdue to his irresponsible decision to drink and drive. Now more than ever, on the eve of becoming a father, Mr.

Simpson needs to becomethat responsible adult and understand the gravity of drinking and driving and the tragic consequences that such reckless behavior caninflict. There is no rationalizing the treacherous actions of drunk drivers that have caused countless needless deaths and injuries on ourroads and highways throughout this province.

A significant step towards eradicating this destructive conduct is for the individualscommitting these type of offences to cease minimizing the behavior and take full responsibility for their actions. [45] The Defence seeks 90 days’ incarceration and asks that the sentence be completed on an intermittent basis. Mr. Simpson isemployed in the fishing industry, a position which is expected to continue to the end of this year and perhaps beyond. Defence counselsubmitted that his employer is prepared to accommodate Mr. Simpson if he were permitted to serve his sentence on an intermittent basison weekends.

For example, they would return from sea in time to allow Mr. Simpson to fulfill his sentence. [46] The Court’s authority to order that a period of incarceration be served on an intermittent basis is governed by section 732(1) ofthe Code. An intermittent sentence can only be given if the period of incarceration is 90 days or less. [47] A sentence of 90 days’ imprisonment served intermittently is on the low end of the range of sentencing for this offence. It wasimposed in R. v. Fancy and more recently, in R. v. McCarthy. It was also imposed in R. v. Anstey but that case involved a jointsubmission.

It is noted that all three cases, unlike the case at bar, involved guilty pleas. In both Fancy and Anstey, Judge Gorman notedthe leniency in imposing such a sentence.

In Fancy he noted a period of imprisonment in the range of 9 to 12 months would beappropriate and that in imposing a sentence for “a period of imprisonment of a length which would not normally be imposed”, heconsidered, amongst other things but, in particular, the Crown’s lenient position on sentence. [48] In my view a 90 day intermittent sentence is too lenient to satisfy the principles of general deterrence and denunciation whichare of primary importance in cases of this nature. I echo Judge Walsh’s comments in R. v.

Kerrivan that the imposition of an intermittentsentence would not meet the necessary principles of denunciation and general deterrence so as to dissuade like-minded individuals fromdriving while impaired. I am also of the view that a 90 day intermittent sentence would not be sufficient to promote a sense ofresponsibility in Mr. Simpson for the harm that he has caused. A longer period of incarceration is required. In my view, however, aperiod of six months as proposed by the Crown would be too high in these circumstances given Mr.

Simpson’s young age, the fact thatthis is his first offence and that he has family support and positive incentives towards making him a good candidate for rehabilitation. [49] Overall, factoring the principles of sentencing and having analyzed the case law with respect to sentences imposed in similarcases, as well as having considered Mr. Simpson’s personal circumstances and the relevant circumstances related to this offence,including all mitigating and aggravating circumstances, I find that a sentence of four months incarceration is appropriate in this casefollowed by a two year period of probation.

Driving Prohibition [50] Section 259(1) of the Code stipulates that for a first offence under

section 253, the Court must make an order prohibiting theoffender from operating a motor vehicle on any street, road, highway or other public place during a period of not more than three yearsplus any period to which the offender is sentence to imprisonment and not less than one year. Section 259(2)(

b) of the Code indicatesthat for the offence committed by Mr. Simpson under subsection 255(2.1), the Court has the discretion to impose a driving prohibition ofup to 10 years plus any period of imprisonment to which he is sentenced.

[ 51 ] The Crown sought a driving prohibition of two years. The Defence agreed with the length of driving prohibition sought. Having considered the nature and circumstances of this case, I find that a driving prohibition within Canada for a period of two years plus the period of imprisonment imposed is appropriate. This is separate and distinct from the suspension of his licence in this province pursuant to the Act which as noted above is in place for a period of 10 years. [ 52 ] Mr. Simpson, with respect to this driving prohibition, I direct your attention to subsection 259(4) of the Code .

If you operate a motor vehicle while disqualified from doing so, that is a separate offence for which you may for which you may also be charged. Restitution Order [ 53 ] The Crown sought a restitution order in the amount of $22,810.25, on behalf of RSA, the insurer of the vehicle being operated by Mr. Simpson at the time of the accident for its payout. Mr. Simpson has been gainfully employed seasonally in the fishing industry since this accident and continues to be so employed at the time of the sentencing hearing. He has also had a relatively strong working history and still has a long work life ahead of him.

He has a good reputation with his current employer who has described him as a “good hard worker.” [ 54 ] Therefore, I am satisfied to impose a restitution order in this case. Mr. Simpson is to pay restitution of $22,810.25 to RSA. This Order is made pursuant to

section 738 of the Code and may be enforced under

section 741 of the Code as if it were a judgment obtained in civil proceedings.

summary and disposition [ 55 ] Mr. Simpson, please stand while I impose your sentence with respect to the one count of breach of section 253(1) (

b) of the Code punishable by section 255(2.1) of the Code , you are hereby sentenced to a four month period of incarceration. [ 56 ] You are also prohibited from the operation of a motorized vehicle on any street, road, highway or other public place within Canada for a period of two years commencing from the date of completion of your period of incarceration. [ 57 ] Following your release from jail, pursuant to section 731(1) of the Code , you are to be bound by a probation order for two years subject to the following statutory conditions: 1) Keep the peace and be of good behavior; 2) Appear before the Court when required to do so; 3) Notify the Court or the probation officer, in advance, of any change in name or address and promptly notify the Court or probation officer of any change in employment; And the following additional conditions: 4) Report to and be under the supervision of a probation officer to whom you are to report within three working days from date of release from jail and, thereafter, when required by the probation officer and in the manner directed by the probation officer; 5) Refrain from using, consuming, or possessing alcoholic beverages or any drug which has not been prescribed for you by a physician; 6) Refrain from entering any licensed liquor establishment except a restaurant; and 7) Comply with all requirements of the probation officer including attending any counseling or other rehabilitative measures deemed appropriate by the probation officer. [ 58 ] Mr.

Simpson, you must also be aware that pursuant to

section 733.1(1) of the Code , if you fail or refuse to comply with the conditions of your probation that is a separate offence for which you may also be charged. Victim Surcharge [ 59 ] A victim surcharge pursuant to section 737(2) (b)(ii) of the Code , in the amount of $200 is ordered and is to be paid within 30 days from today’s date. _____________________________ Sandra R. Chaytor Justice