Page: 1 SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: R. v. Moase 2012 PESC 36 Date: Docket: S1-GC-965 Registry: Charlottetown

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1 Page: 1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Moase 2012 PESC 36 Date: Docket: S1-GC-965 Registry: Charlottetown Her Majesty the Queen -against- Clarence Arnold Moase Appearances: Before: The Honourable Justice John K. Mitchell John McMillan, Q.C. for the Crown Michael Drake and Tom Keeler for the Defence Place and Dates of Hearing Charlottetown, Prince Edward Island November 30, 2012 Place and Date of Oral Decision Charlottetown, Prince Edward Island December 4, 2012

2 Page: 2 Sentence for impaired driving causing death - s. 253(1)(b) and 255(3.1) - Accused with four prior convictions contrary to s blood alcohol concentration six years imprisonment - lifetime driving prohibition. CASES CITED: R. v. Morine, 2011 NSSC 46; R. v. Junkert, 2010 ONCA 549; R. v. Rammage, 2010 ONCA 488; R. v. Young, 2010 CarswellOnt 5351; R. v. Drake, 2008 CarswellOnt 848; R. v. Ruizfuentes, 2010 MBCA 90; R. v. John Alvin Gallant, 2008 PESCAD 01; R. v. James Calvin McFadden, 2003 PESCTD 67; R. v. Bernshaw, [1995] 1 S.C.R. 254 (SCC); R. v. Coupal, 2010 ABQB 229; R. v. Kummer, 2011 ONCA 39; R. v. Dingwell, 2012 PESC 13; R. v. Morris, 2011 ONSC 5206; Desjarlais 2012 NWTTC 2 Mitchell J.: [1] Mr. Moase has pled guilty to an offence under s. 253(1)(b) and 255(3.1) of the th Criminal Code. That is, that on the 14 day of July, 2012, having consumed alcohol in such a quantity that the concentration thereof exceeded 80 milligrams percent, he did, while operating a motor vehicle, cause an accident resulting in the death of Elizabeth Sovis. The maximum penalty for this offence is life imprisonment. It is indeed a very serious offence. Facts [2] Elizabeth Sovis and her husband, Edmund Aunger, were on a cycling vacation in the Maritimes. They left their home in Alberta and flew to Moncton, New th Brunswick, and cycled in that area for a few days. July 14 they arrived in Prince Edward Island. They cycled on the Confederation Trail from Borden to the Rennies Road. The Bed & Breakfast with which they had a reservation was some five kilometers off the trail. They proceeded down the Rennies Road. Mr. Aunger was ahead. Ms. Sovis was wearing a bicycle helmet and a reflective yellow safety vest. It was daylight, between 5:30 and 6:00 p.m. The asphalt on the Rennies Road was in excellent condition, bare and dry. There was no paved shoulder on the Rennies Road. The speed limit was 80 km, and the temperature was a muggy 24 degrees Celsius. [3] Clarence Arnold Moase was driving on a long straight section of the road when he struck Ms. Sovis. Traffic was fairly heavy. There was nothing obstructing his view. He did not brake, steer away nor accelerate prior to the collision. He continued about half a kilometer down the road before turning around and returning. Mr. Aunger heard the collision. He returned as well. There, he experienced the horror of watching his beloved wife of 34 years die before his very eyes.

3 Page: 3 [4] The RCMP found a half empty 1.14 liter bottle of vodka in the Moase vehicle. They observed that Moase was unsteady on his feet, had the smell of alcohol on his breath, red eyes, and his speech was slurred. At 7:32 (about 1.5 to 2 hours after the collision), he registered a blood alcohol concentration of 220 milligrams percent. At 7:53, he again registered 220 milligrams percent. Offender [5] Clarence Arnold Moase is 49 years of age. He is self-employed as owner of Moase Plumbing & Heating, a business which he took over from his father in He has a wife and three children, twins aged 21 and a 16-year old. He has a reasonably positive pre-sentence report. He is described as a family oriented individual and a good provider. He has always been gainfully employed and was an active supporter of community activities. He has, however, a dark side. His wife, who no doubt loves him very much, describes him as a good father when he is sober. He appears to have been struggling with alcohol for years. In fact, it is rather revealing that the pre-sentence report states at page 5 sources contacted for the purpose of the Report did not verbalize significant surprise in relation to Mr. Moase s current legal situation. It seems the community was alive to Moase s propensity for drinking and driving. It is not a crime to be an alcoholic. It is a crime, however, and a serious crime to operate a motor vehicle while impaired by alcohol. This is a fact Moase knows only too well. He was convicted August 20, 1993 of an offence contrary to s. 253(a) (impaired driving) and sentenced to three days in jail. Two years later he was convicted to an offence contrary to s. 253(b) of the Criminal Code (over.08) and served 20 days in jail. In 2006, he was convicted for a third time of an offence under s. 253 (253(b)) (over. 08) and received 10 days in jail as a sentence. His fourth drinking and driving conviction was 2008, again an offence under s. 253(b) (over. 08) for which he served 70 days in jail and was fined $1,500. [6] Moase has, I m afraid, done very little on his own to address his alcohol addiction. In 2007, after his third conviction, he completed a self referral to East Prince Addiction Services, but only because this was a requirement of Highway Safety for reinstatement of his license/ interlock program eligibility. Therefore, for a period of approximately 20 days he attended and completed an outpatient program. He started but did not complete the recommended follow-up program. [7] In August 2008, following his fourth conviction, he attended and successfully

4 Page: 4 completed (once again) the inpatient program. This time a 14-day program, but once again, it was because it was a requirement of Highway Safety for reinstatement of his license and interlock program eligibility. This time he did the recommended followup program for a year, from September 2008 to September Other than that, he appears to have done nothing prior to July 14, [8] During the time he s been in jail however, Moase has completed the Impaired Driving Program offered to inmates incarcerated on impaired driving charges and, as well, he is participating in the Correctional Substance Abuse Program and attending the in-center Alcoholics Anonymous meetings and Church/Fellowship program. Impact on the Victim and Community [9] There are two victim impact statements filed. They are articulate and very moving in describing the impact on the family, and yet, at the same time, they show compassion for Moase. Elizabeth Sovis was the mother of three. Her son, Edmund Stephen Aunger, wrote that his family was close. He would see his mother everyday, as she lived next door. He feels sad everyday. He lost his mother and his children lost their grandmother. [10] Mr. Aunger Sr. lost his wife of 34 years. She was the love of his life. They met in grade 7, and, as he wrote, fell madly in love. He has had the horrific experience of watching her die on the side of the road 3,000 miles from home. He partially blames himself because he always rode behind her but, on this occasion, he was ahead of her as he seemed to be more confident as to the location of the bed and breakfast to which they were going. He, of course, bears absolutely no fault. [11] The impact on Mr. Aunger Sr. and his family is huge, and his victim impact statement shows their struggle to make sense out of the senseless tragedy. [12] The number of deaths and serious injury occasioned by those who consume alcohol and drive automobiles throughout this country is staggering. This is a crime that adversely affects the whole of our society. Crown and Defence Positions

5 Page: 5 [13] The Crown takes the position this is a very serious offence and that sentences for this type of offence are on the rise across the country. The Crown s position is that the Court should impose a sentence of eight years with credit for time served at a ratio of one to one, a lifetime driving prohibition and a section DNA order. [14] The Defence emphasizes the fact of an early guilty plea and acceptance of responsibility and genuine remorse. The Defence takes the position that an appropriate sentence is in the range of three to four years, with credit for time served at one and a half to one, a ten-year driving prohibition and no DNA order. Principles of Sentencing [15] The purpose and principles of sentencing are set out in s. 718 to of the Criminal Code. The fundamental purpose of sentencing is to arrive at a sentence that contributes 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 objectives as set out in s. 718, which I shall paraphrase as follows: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done, promotion of a sense of responsibility and acknowledgment of harm. In other words, a just sentence. [16] The fundamental principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility (s.718.1). This is often called moral blameworthiness (R. v. Morine, 2011 NSSC 46). [17] While all sentences must be individually crafted, taking into account all the circumstances of the offence and the offender, s (b) dictates that a just sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. While the circumstances of the offence are never identical, it is helpful to canvas case law in this and other jurisdictions. [18] In R. v. Morine, supra, the Nova Scotia Supreme Court concluded that, in Nova Scotia, the appropriate range for impaired driving causing death was three to five years. The Nova Scotia Supreme Court imposed a sentence of five years for impaired driving causing death in that case.

6 Page: 6 [19] The Ontario Court of Appeal in R. v. Junkert, 2010 ONCA 549, upheld a sentence of five years where the accused, whose blood alcohol level was 130 milligrams percent, drove his car into a jogger, killing her. The Court stated at para. 49: I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time. That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court. While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years. [20] In R. v. Rammage, 2010 ONCA 488, the Ontario Court of Appeal upheld a four-year sentence imposed on Rammage whose blood alcohol level was 229 milligrams percent. In R. v. Young, 2010 CarswellOnt 5351, the Ontario Superior Court of Justice dealt with a 48-year old man with a previous conviction for impaired driving, who pled guilty to and was convicted on charges of impaired driving and driving with a blood alcohol concentration greater than 80 milligrams percent causing one death, two counts of impaired driving and driving with a blood alcohol concentration greater than 80 milligrams percent causing bodily harm. His blood alcohol level, according to the intoxilyzer samples, showed blood alcohol concentrations of 180 milligrams percent and 189 milligrams percent. He was sentenced to a four-year term of imprisonment after a one-year credit for time in pretrial custody. In R. v. Drake, 2008 CarswellOnt 848, the Ontario Court of Justice was dealing with an accused individual who drank 12 beers, and drove the vehicle that caused an accident that killed his best friend. He pled guilty to impaired driving causing death and driving while disqualified. He was sentenced to five years imprisonment. He had a long criminal record of driving while impaired. In fact, he had six previous convictions. In R. v. Ruizfuentes, 2010 MBCA 90, the Manitoba Court of Appeal sentenced the accused to 4 ½ years imprisonment, together with a 15-year driving prohibition for one count of impaired driving causing death. The Manitoba Court of Appeal reviewed the case law and stated at para. 22: As a result of the recent amendments and the review of the case law, I conclude that the regular range of sentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking and

7 Page: 7... driving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years. As for driving prohibitions, the cases show that for first offenders, the range is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban. [21] Counsel cites only two cases from Prince Edward Island. They are R. v. John Alvin Gallant, 2008 PESCAD 01 and R. v. James Calvin McFadden, 2003 PESCTD 67. In Gallant, the reading was 100 milligrams percent, and the Court of Appeal upheld an 18-month conditional sentence order. Conditional sentences are no longer available for this offence, and in the circumstances of this case I would not consider one even if they were available. Mr. Gallant had no record. [22] McFadden involved a 25-year old with no previous record whose blood alcohol concentration was 193 to 223 milligrams percent. He was sentenced to one year in jail. Mitigating Factors [23] To his credit, Moase was immediately cooperative with the police. He waived his right to counsel and admitted driving almost immediately. I accept, as well, his expressions of remorse made through the pre-sentence report, his counsel, and his own words in court, as being genuine. The biggest mitigating factor is the fact that Moase entered a guilty plea at the earliest opportunity. Not only does this save the time and expense of court proceedings and the pain and suffering of the victim s family to have to come to court and testify, but it constitutes a concrete acceptance of th responsibility for his wrongdoing. Moase was placed in jail July 14, taken before a th justice of the peace July 15 and has been in jail on remand since then. During the time he has been in jail, he has completed the Impaired Driving Program offered to those inmates incarcerated on impaired driving offences. He is, as well, participating in the Correctional Substance Abuse Program and attending the in-center Alcoholics Anonymous meetings and Church/Fellowship program. The pre-sentence report indicates that Moase takes these programs seriously and appears to be gaining insight into his alcohol issues. While his active participation in these programs is undoubtedly a mitigating factor, it is largely set off by the aggravating factor that Moase has had, what the author of the pre-sentence report describes as, a minimal history of involvement with Addiction Services prior to July 14, His involvement seems to have been motivated more to ensure his eligibility for

8 Page: 8 reinstatement of his driver s license/interlock program than an genuine desire to face his demons. The fact that he appears to be gaining insight into his alcohol issue is mitigating but also set off by the fact that it took four prior impaired driving convictions and the death of Elizabeth Sovis to open his eyes. [24] Moase has a relatively good pre-sentence report. He also has the support of his family, who themselves have been victims of his lengthy struggle with alcohol. His wife advised the author of the pre-sentence report that her family was significantly impacted and that the first few weeks after the offence were difficult and horrible. No doubt this is still a very difficult time for them. Nonetheless, his family is standing behind him, and that bodes well for his rehabilitation. He is in a stable 27-year marriage. He ran a successful business. He was involved in his community, having been described as an avid supporter of community activities and fundraising events. To paraphrase Moase s wife, I conclude that he is a good person when he is sober; a good person who has, unfortunately, committed a terrible crime with devastating consequences. Aggravating Circumstances [25] There are, in my view, three aggravating circumstances. The first is his blood alcohol concentration. Section makes a blood alcohol concentration in excess of 160 milligrams percent an aggravating factor. Moase had a blood alcohol concentration of 220 milligrams percent, which, as Mr. McMillan for the Crown pointed out, is approaching three times the legal limit of 80 milligrams percent. [26] The second aggravating factor is the circumstances of the collision. The driving conditions were about as good as it gets in this Province. The road was straight, there was nothing obstructing his view, it was daylight, there were clouds covering the sun which was off to the side, the pavement was in good condition, Ms. Sovis wore a reflective vest so as to be easily seen and all the other traffic had no difficulty going around her safely. Yet, with these near perfect conditions Moase made no effort to brake nor to steer so as to avoid striking Ms. Sovis. It is almost inconceivable that this happened. [27] The most serious aggravating factor, however, is Moase s prior four convictions. His being caught by the police four times, brought to court four times, sentenced to jail four times, and having had his license suspended four times did not curb his propensity to drink and to drive. Analysis

9 Page: 9 [28] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offence carries with it a maximum sentence of life imprisonment. This offence resulted in the tragic death of a healthy active woman. That speaks as to the gravity of this offence. [29] Moase has four prior convictions for drinking and driving. He spent time in jail ranging from three days for the first, to 70 days for the fourth. He did take an outpatient addictions program and follow up following convictions three and four. Even if taking those program was motivated by a desire to get behind the wheel again, Moase must have at least heard about the nature of the disease of alcoholism and the danger of combining alcohol with driving a motor vehicle. Moase was very well aware that he had an alcohol issue and that driving while intoxicated is a crime and, most importantly, that when he drank, he had a propensity to drive. [30] Alcoholism is a disease, not a crime. However, Moase, in the exercise of his own free will, knowing his own propensity to drive while under the influence of alcohol, chose to consume alcohol, chose to have it in his vehicle in the middle of the day, and chose to drive. His disease is absolutely no excuse. His degree of responsibility and his degree of moral blameworthiness is very high. [31] In R. v. Bernshaw, [1995] 1 S.C.R. 254 (S.C.C.), Justice Cory observed that drunk driving is the crime that causes the most significant social loss to our country through death and severe injury. It leaves, in his words, a terrible trail of death, injury, heartbreak and destruction (para 16). While there appears to be some statistical evidence in the case law to the effect that the incidence of impaired driving has diminished in the 20 years or so prior to 2008, (R. v. Coupal, 2010 ABQB 229 paras. 16 to 20), it is a crime which is still far too prevalent. Attitudes may be changing but not fast enough. Perhaps that is because not all those convicted of impaired driving fit our pre-conceived notion of what a criminal is or looks like. Perhaps because we see some of them as our own next door neighbours who have simply made a mistake; the well-respected businessman/woman who literally has one drink too many at a reception and drives home with a blood alcohol concentration just over 80 milligrams percent. However, make no mistake, every person who drives a motor vehicle while impaired turns a motor vehicle into a potential killing machine. [32] Thus, the overriding sentencing principle in the case of impaired driving causing death must be denunciation and general deterrence. (R. v. Junkert, supra,

10 Page: 10 para 42, R. v. Ruizfuentes, supra, at para 33, and R. v. Coupal, supra, at para 11). [33] The Manitoba Court of Appeal puts the sentencing range for impaired causing death at two to five years for those with no prior record and four to eight years for those with prior records (R. v. Ruizfuentes, supra). The Nova Scotia Supreme Court, after reviewing the case law in R. v. Morine, supra, concludes that the appropriate range of sentence for impaired driving causing death in these circumstances is three to five years. In the circumstances of that case, the accused had no record. In Ontario, the sentence for impaired causing death is increasing incrementally (R. v. Kummer, 2011 ONCA 39 at para 15 and Junkert at para 49). The Ontario Court of Appeal upheld sentences of four years where the accused, with no prior record and a blood alcohol concentration of 229 milligrams percent, killed one person and injured a second person (R. v. Rammage, supra) and five years where the accused s actions killed a young wife and mother of four (R. v. Junkert). In Junkert case, the accused s blood alcohol concentration was 130 milligrams percent and there was no indication of a prior record. [34] The Prince Edward Island cases are of little help. Gallant case involved a driver with no prior related record whose reading was 100. While that is over 80 milligrams percent, it is a relatively low reading. The facts of the case are significantly different as well. The driver came over a hill at about five minutes after seven p.m. in late March, and there was a jogger who the accused said was in the middle of the road. Thus, the circumstances of the case differ markedly. R. v. McFadden, supra, is nine years old, and in any event, it appears to me that McFadden and Gallant are out of step with the sentences imposed across Canada as sentences have increased in recent years. [35] In this case, then, given the circumstances of this incident, the high reading, the four prior convictions and the circumstances of Clarence Arnold Moase, and sentences imposed for similar offences, I believe an appropriate sentence is six years incarceration. Credit for Time Served in Pre-Trial Custody [36] Moase has been in jail since the evening of July 14, That totals 143 days. The Crown points out that the amendments to s. 719(3) and 719(3.1) of the Criminal Code create a presumption that the credit for time served should be on a one to one basis only. The Crown takes no position on whether the accused should receive a higher credit.

11 Page: 11 [37] The Defence takes the position that the credit should be 1.5 to 1. The Defence points out that Moase could have, but did not, apply for bail and that he has been a model prisoner. [38] I dealt with this issue in R. v. Dingwell, 2012 PESC 13, paras. 30 to 36. Prior to amendment of s. 719(3) and the addition of 719(3.1), courts in this Province routinely granted credit of 1.5 to 1 because of the fact that time spent in pre-trial custody does not qualify for earned remission and parole eligibility. For example, a person serving a three-month sentence may, by virtue of statutory remission, be released after having served two-thirds of his sentence. Thus, 60 days pre-trial may be considered to be the equivalent of a 90-day sentence. Some courts granted a ratio of 2:1 to reflect not only loss of statutory remission but the fact that inmates in pre-trial custody do not have full access to programs that other inmates do. [39] In R. v. Morris, 2011 ONSC 5206, the court found that loss of remission by itself cannot justify an increased credit as every person in pre-trial custody suffers a loss of remission. That court found to grant enhanced credit because of loss of remission or anything else which is normally associated with pre-trial custody would be to render the amendments to s. 719(3) meaningless. [40] There must be something other than the usual circumstances experienced by all inmates in pre-trial custody to justify an increase of the ratio. In Desjarlais 2012 NWTTC 2, Gorin, PCJ, found that the circumstances do not have to be exceptional. He looked at the fact that statutory remission was earned, and therefore not all inmates would receive the benefit of statutory remission. He concluded therefore that as he had affidavit evidence from the case manager within the correctional centre that housed the inmate to the effect that had the inmate been sentenced she would have earned remission of one-third to be sufficient circumstances to justify increasing the credit ratio. [41] I have nothing before me from the Provincial Correctional Center. What I do have, however, is the following paragraph from page 4 of the pre-sentence report. Arnold Moase has been on remand at the Provincial Correctional Center, Charlottetown, PE since July 15, He has not had any issues or incident reports since his admission. He has completed an Impaired Driving Program, which is offered to offenders that

12 Page: 12 have DUI/DWI charges. The program was comprised of eight sessions and was offered between Oct 23 and Nov 07, Paul Currie, program facilitator, informed that Mr. Moase was an active participant and appeared to be impacted by the program. Mr. Moase is currently participating in the CSAP (Correctional Substance Abuse Program). The program began October 30 and will finish November 22, Paul Currie informed that Mr. Moase is taking the program seriously and appears to be gaining insight into his alcohol issues. Mr. Moase is also attending the incenter Alcoholics Anonymous meetings and the Church/Fellowship program on a regular basis. [42] The fact that Moase did not seek bail, which would most probably have been granted, and instead chose to remain in jail to begin his first steps towards rehabilitation is something other than the usual circumstances, in my view. His steps while in jail towards rehabilitation were largely set off by the aggravating factor of his minimal history with Addiction Services prior to July 14, when I was calculating an appropriate sentence. However, I believe I can take into account the efforts he s made while in custody. He was not simply sitting around passing time. He was actively working towards his rehabilitation. It would be unfair then, in light of his efforts towards rehabilitation, to limit him to 1:1 credit. Moase will have credit for time served pre-trial at approximately 1.5 to 1 for a total of 214 days. His sentence will be six years minus 214 days. Ancillary Orders DNA Order [43] The Crown seeks an order authorizing the taking of bodily substances for forensic DNA analysis under s of the Code. The Crown s position is that this is a discretionary order that may be made where the court is satisfied that the order is in the best interest of the administration of justice. In deciding this issue, the court must consider the person s criminal record, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the privacy and security of the individual. [44] In this case, I would exercise my discretion and decline to order the taking of bodily substances for forensic DNA analysis. Moase is an alcoholic. While he has four previous convictions for impaired driving, he has no other criminal history. I do not believe it is in the best interests of the administration of justice to have a sample of Moase s DNA on a national databank.

13 Page: 13 Driving Prohibition [45] Driving is a privilege, not a right. Moase lost his driving privileges for a period of time following each of his four prior convictions. The Crown seeks a lifetime driving prohibition. The defence seeks a ten-year driving prohibition and states that a lifetime ban will effectively diminish his chances at rehabilitation as he will be unable to continue his business without his driver s license. I am unmoved by the defence position. Moase is a plumber who can find work without a driver s license, or he can run his business by hiring an employee or employees with a driver s license. In any event, Moase has had his license revoked four times and had it returned four times. It will not be returned a fifth time. Under s. 259(2)(a)(i), Clarence Arnold Moase is prohibited from operating a motor vehicle on any street, road, highway or other public place for life. Conclusion [46] Please stand, Mr. Moase. I sentence you to serve a period of incarceration of six years, less a credit of 214 days for time served. Pursuant to s. 259(2)(a)(i), you are prohibited from operating a motor vehicle on any street, road, highway or other public place for life. J. December 4, 2012.