COURT OF QUEEN S BENCH OF MANITOBA

Transcription

1 Date: Docket: CR (Winnipeg Centre) Indexed as: R. v. Stuart Cited as: 2018 MBQB 54 COURT OF QUEEN S BENCH OF MANITOBA B E T W E E N: HER MAJESTY THE QUEEN, ) Counsel: ) ) for the Crown - and - ) PETER V. EDGETT ) J. ERIC HACHINSKI ) KENDRA LEE STUART, ) for the Accused ) BRUCE F. BONNEY Accused. ) MANDEEP S. BHANGU ) ) JUDGMENT DELIVERED: ) April 5, 2018 GRAMMOND J. Reasons for Sentence INTRODUCTION [1] I have found Kendra Stuart guilty of dangerous operation of a motor vehicle causing death and impaired driving causing death. The issue now before me is the appropriate sentence to be imposed. The following are my reasons for decision relative to sentence.

2 Page: 2 CIRCUMSTANCES OF THE OFFENCE [2] The circumstances of the offences were set out in my reasons for decision relative to the convictions of Ms. Stuart, found at 2017 MBQB 149, and which I will summarize as follows. [3] Ms. Stuart was driving at the time of a single vehicle accident in which her passenger Mr. James Hayes was killed. There were normal driving conditions, in that the road was dry, there was no precipitation and visibility was good, though it was nighttime. Traffic was light on an undivided, two lane highway. While the collision took place on a straightaway, the road was narrow and winding with steep ditches on either side. Ms. Stuart failed to straighten out the vehicle after coming out of a curve, such that the vehicle entered the ditch and then vaulted into the air. [4] The collision was extremely violent, such that the vehicle travelled for approximately 58 metres from its initial vaulting point to its final resting place between two trees. There was no evidence either at the scene or within the vehicle s event data recorder that Ms. Stuart at any point took her foot off the gas pedal or attempted to apply the brakes. CIRCUMSTANCES OF THE OFFENDER [5] Ms. Stuart was 19 years old at the time of the offences and is now 23 years old. She has two siblings, and though her parents divorced ten years ago, she appears to have had a loving and supportive upbringing, with no major concerns. Ms. Stuart resides with her boyfriend, and has no children. Since this offence, she has maintained

3 Page: 3 employment at multiple locations, and has been described in the pre-sentence report as a hard worker. [6] The individuals interviewed in preparation of the pre-sentence report and those who provided reference letters expressed surprise at Ms. Stuart s actions giving rise to these offences. She appears to have been a generally well-behaved teenager. SENTENCING PRINCIPLES [7] The sentencing objectives to which I must have regard in this matter are set out in s. 718 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code ), and include: a) denunciation of unlawful conduct; b) deterrence of the offender and others; c) assistance in the rehabilitation of offenders; and d) an acknowledgement of the harm done to victims and to the community. [8] In addition, s. 718 provides the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In deciding what a fit and proper sentence is, the Court must take into account the circumstances of the offence and of the offender, both of which I have already described in this case. Certainly, what a fit and proper sentence is depends very much on the particular circumstances of each case.

4 Page: 4 [9] The leading case on sentencing in a case involving impaired driving causing death in Manitoba is R. v. Ruizfuentes, 2010 MBCA 90, 258 Man.R. (2d) 220, wherein the Court stated: 33 In cases of impaired driving causing death, the paramount objectives of sentencing are denunciation and deterrence. The punishment must express society's condemnation of the accused's ways and serve to dissuade others from engaging in similar conduct. In such cases, an accused is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity (see Vancouver (City) v. Ward, 2010 SCC 27, at para. 29). [10] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraph 73, the Court stated that the objectives of deterrence and denunciation are particularly relevant to offences that might be committed by ordinarily law-abiding people, such as impaired driving, as these individuals will be sensitive to harsh sentences. [11] Pursuant to the decision in Ruizfuentes, the applicable sentencing range for first offenders convicted of impaired driving causing death is two to five years incarceration and a driving prohibition of three to ten years. The law is clear that sentencing ranges are guidelines, and are useful in promoting consistency and parity for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. Having said that, a sentencing range is not conclusive of the appropriate sentence in a given case. In this case, there is no reason that the range should not apply, nor was a sentence outside the range requested. [12] To determine where within the sentencing range Ms. Stuart should be, I must determine which objectives deserve the greatest weight given the circumstances of the case, and I must consider any relevant mitigating or aggravating factors, which would

5 Page: 5 decrease or increase the sentence. I must then take a last look at the prospective sentence to ensure that it respects the overarching principle of sentencing, which is proportionality. POSITIONS OF THE PARTIES CROWN [13] The Crown requested a custodial sentence of five years, followed by a driving prohibition of seven-and-a-half years, and a DNA order. [14] The Crown pointed to the very significant impact upon the Hayes family due to the death of James, their son, brother and uncle. In addition, at the time of his death, James Hayes was about to become a father, and hence will never meet his daughter. DEFENCE [15] The defence requested a custodial sentence in a federal penitentiary of two years. [16] The defence noted that Ms. Stuart has not taken steps to regain her driving privileges. As referenced in the pre-sentence report, she feels that she does not deserve those privileges. Instead, she moved to a location within the city where she could get around without a licence. THE APPROPRIATE SENTENCE IN THIS CASE [17] The relevant mitigating factors in this case are: 1) Ms. Stuart has no previous criminal record; 2) Ms. Stuart s driving record consists of only one conviction, for speeding, which occurred in March 2013;

6 Page: 6 3) Ms. Stuart has stable and positive supports from her family and friends; 4) Ms. Stuart is steadily employed, and is a hard worker; 5) Ms. Stuart is a youthful offender. The Court in Ruizfuentes confirmed, at paragraph 24, that youth can be a mitigating factor. This approach was furthered commented upon in R. v. Hansell, 2015 MBQB 109 (CanLII), wherein the Court stated at paragraph 18: Courts understand that young adults sometimes behave foolishly, and some commit criminal acts. While they must not escape unpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness for the crimes they commit as compared to mature adults. This should be reflected in the sentence imposed. 6) Ms. Stuart is genuinely remorseful for her actions and the death of her friend James Hayes; and 7) Ms. Stuart was found to be at a very low risk to reoffend by Probation Services. [18] The relevant aggravating factors in this case are: 1) On the date of the offence, Ms. Stuart drank to the point of impairment and then drove a motor vehicle with two passengers; 2) Ms. Stuart drove at between 29 and 47 km/h over the speed limit of 70 km/h; 3) Many aspects of Ms. Stuart s manner of driving were otherwise dangerous, the details of which are set out at paragraph 63 of my reasons for decision on conviction;

7 Page: 7 4) At the time, Ms. Stuart had yet to complete the three-year period under which she was prohibited from driving with any alcohol in her blood, pursuant to the graduated licensing program. I acknowledge that this prohibition was set to expire approximately two weeks after the offences; 5) Ms. Stuart advised police shortly after the collision that she swerved to avoid hitting an animal crossing the road and lost control of the vehicle. At trial, I concluded that this version of the facts was not supported by any physical evidence, and amounted to speculation, at best; and 6) Ms. Stuart has, at all material times, been subject to a bail order with an abstention clause relative to alcohol and a requirement that she keep the peace and be of good behaviour. Despite these terms, as disclosed in the pre-sentence report, she has consumed alcohol, albeit in conservative amounts at family get-togethers, and has smoked marijuana very infrequently, whatever that means. These actions constitute breaches of her bail conditions. [19] I note that there is no Gladue component before the Court. [20] I am mindful of the following additional principles derived from the case law to which counsel directed me, and which in my view are of relevance in this case. [21] As directed by the Court in Ruizfuentes at paragraph 38, to assess the extent of moral culpability, due regard must be given to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender s conduct.

8 Page: 8 [22] In this case, Ms. Stuart clearly intentionally took a risk by driving while impaired, and the consequential harm that she caused was severe. On the basis of the presentence report, and her lack of a criminal record, this behaviour deviated from her standard or normative behaviour as a productive member of society. I recognize one previous conviction for speeding on her driving record, which is a regulatory offence for which moral culpability is less than for a criminal offence as noted in Ruizfuentes. Pursuant to this analysis, Ms. Stuart s moral culpability is at the middle to higher end of the range. [23] In R. v. Gejdos, 2017 ABCA 227, the Court confirmed that the gravity of the offence and the moral culpability of the offender are determined primarily at the time the offence is committed. The sentencing judge must determine the gravity of the particular offence committed by the accused against the global gravity of that type of offence. The gravity of the offence is not displaced by whether the offender has been rehabilitated or is remorseful. The gravity of the offence is unchanged by relevant mitigating or aggravating factors. In this case, the circumstances of the offence were grave. Ms. Stuart drove dangerously while impaired, in driving conditions which did not contribute to the single vehicle collision. The extreme violence of the collision was attributable to her actions alone. [24] I have already referenced the Hansell case, wherein the offender was also 19 years of age at the time of the offences, and was convicted of the same two offences. He was sentenced to 26 months in custody. There are, however, significant differences as between the circumstances in Hansell and this case. One major difference is that

9 Page: 9 Mr. Hansell entered pleas of guilty to both charges. Certainly, Ms. Stuart was well within her rights to plead not guilty and proceed to trial, and while doing so is certainly not an aggravating factor, she may not reap the benefit of a guilty plea as a mitigating factor. [25] In addition, in Hansell, the driving of the offender was not erratic, and he was not speeding, but he was texting at the time of the collision. In addition, there were no outward signs of impairment. [26] I also note that Hansell was decided six months before Lacasse, to which I have already referred. Accordingly, the Court in Hansell did not have the benefit of the guidance of that decision wherein the Court stated at paragraph 79 that: Although an offender s youth is often an important mitigating factor to consider, it should be noted that it is young people who are affected the most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the instant case, for which the respondent is entirely responsible, the trial judge was right to reduce the weight attached to his youth as a mitigating factor. [27] For these reasons, I do not accept that the decision in Hansell is directly applicable to this case. [28] The law is clear that given the offences before me, the sentencing objectives that must be given the greatest weight are deterrence and denunciation. In addition, there are significant aggravating factors that apply, the substance of which outweigh the mitigating factors that I have identified. The mitigating factor that carries the most weight is Ms. Stuart s age at the time of the offences, though I have attributed reduced weight to that factor in accordance with the direction in Lacasse. In coming to my decision, I have considered the principle of proportionality, and I am satisfied that the sentences that I am about to impose comply with that principle, relative to the case law

10 Page: 10 before me. This includes R. v. Coutu, 2016 MBQB 5, where exceptional circumstances were present that do not exist here, and where there was neither erratic driving nor signs of impairment at the scene. [29] I note that both counsel suggested that the sentences in this matter should be concurrent, and I agree, given that the offences arise out of the same incident. [30] Before imposing sentence, I wish to say to the Hayes family the following. I doubt that anything I say today can lessen your sorrow and pain, and obviously nothing can be done to bring James back. I truly hope, though, that the end of this Court proceeding will bring you a form of closure, to at least some part of what you have experienced, and that you will be able to find some measure of peace in which to move forward in your lives. [31] To Ms. Stuart I wish to say the following. You have a long life ahead of you, and I know that you can make the most of it. You said at the sentencing hearing that you will do something with your life in honour of Mr. Hayes, and I have no doubt that you can and will do it. Do not lose sight of that. CONCLUSION [32] Taking into account the applicable aggravating and mitigating factors in this case and all of the relevant facts and law that I have already referenced, I have concluded that a fit and proper sentence is: 1) with respect to count 2, impaired driving cause death, a period of incarceration of four years;

11 Page: 11 2) with respect to count 1, dangerous driving cause death, a period of incarceration of four years, concurrent; 3) there will be a driving prohibition for a period of seven-and-a-half years; and 4) I am not ordering that a DNA sample be provided pursuant to s (3) of the Criminal Code. Given the nature of the offence, the circumstances of its commission and the low risk of reoffence, I am not satisfied that the impact upon Ms. Stuart s privacy and security is in the best interests of the administration of justice. Grammond J.