SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Cantelo, 2013 PESC 1 Date: 20130130 Docket: S1-GC-931 Registry: Charlottetown HER MAJESTY THE QUEEN -and- RAYMOND ALFRED CANTELO Before: The Honourable Justice Gordon L. Campbell Appearances: Lisa Goulden, solicitor for the Crown Brenda Picard, Q.C., solicitor for the Accused Place and date of trial: Place and date of oral decision: Place and date of written decision: Charlottetown, Prince Edward Island December 10, 11, 12, & 13, 2012 Charlottetown, Prince Edward Island January 10, 2013 Charlottetown, Prince Edward Island January 30, 2013
Page: 2 CRIMINAL LAW - Sentencing - impaired driving causing death - impaired driving causing bodily harm - leaving the scene of an accident. CASES CONSIDERED: R.v. Moase, 2012 PESC 36, R. v. Morine, 2011 NSSC 46, R. v. Ruizfuentes, 2010 MBCA 90, R. v. Rammage, 2010 ONCA 488, R. v. Junkert, 2010 ONCA 549, R. v. Young, 2010 CarswellOnt 5351, R. v. Drake, 2008 CarswellOnt 848. STATUTES REFERRED TO: Criminal Code of Canada, RSC 1985, c C-46 Campbell J.: Introduction [1] Raymond Cantelo was tried on six criminal charges arising out of driving his motor vehicle on October 22, 2011 which resulted in the death of Stacy Cheverie and in the serious injury of her husband, Bernard Cheverie. The charges are that he did, at or near Peakes, Kings County, Prince Edward Island, commit the following offenses: 1) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml of blood, while operating a motor vehicle, cause an accident resulting in the death of Stacy Cheverie, contrary to section 253 (1)(b) and section 255 (3.1) of the Criminal Code of Canada and amendments thereto; 2) while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby cause death to Stacy Cheverie, contrary to section 253 (1)(a) and section 255 (3) of the Criminal Code of Canada and amendments thereto; 3) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml of blood, while operating a motor vehicle, cause an accident resulting in bodily harm to Bernard Cheverie, contrary to section 253 (1)(b) and section 255 (2.1) of the Criminal Code of Canada and amendments thereto; 4) while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby cause bodily harm to Bernard Cheverie, contrary to section 253 (1)(a) and section 255 (2) of the Criminal Code of Canada and amendments thereto;
Page: 3 5) having the care and control of a motor vehicle that was involved in an accident with Stacy Cheverie, with intent to escape civil or criminal liability, failed to stop his vehicle, give his name and address and offer assistance to Stacy Cheverie, an injured party, contrary to section 252 (1.3) of the Criminal Code of Canada and amendments thereto; and 6) having the care and control of a motor vehicle that was involved in an accident with Bernard Cheverie, with intent to escape civil or criminal liability, failed to stop his vehicle, give his name and address and offer assistance to Bernard Cheverie, an injured party, contrary to section 252 (1.2) of the Criminal Code of Canada and amendments thereto; [2] The trial ran over the course of four days, during which the Crown completed its case. Then the defence embarked upon its case, and completed the evidence of one witness before electing to change plea with respect to certain of the offences. [3] The accused entered guilty pleas to the charges of impaired driving causing the death of Stacy Cheverie, for which he is liable to a term of imprisonment for life, impaired driving causing bodily harm to Bernard Cheverie, for which he is liable to a term of imprisonment for up to 10 years, and to the charge of failing to stop his vehicle, give his name and address and offer assistance to Stacy Cheverie, an injured party, for which he is also liable to a term of imprisonment for life. The Crown then entered a stay of proceedings with respect to each of the other three counts, but served notice that pursuant to section 725 of the Criminal Code of Canada, in determining sentence, it would be asking the court to consider the facts and circumstances of the accused leaving the scene of the accident as it related to Bernard Cheverie as well. Facts [4] Bernard and Stacy Cheverie were husband and wife. One of the activities they enjoyed together was riding on Bernard s motorcycle. They were doing just that on the beautiful, sunny afternoon of October 22, 2011. As they approached the intersection of the Peakes Road, on which they were driving, and the St. Patrick s Road, on which the accused was driving, the accused ignored the stop sign facing him and drove his vehicle into the path of the Cheverie motorcycle, and stopped. Unavoidably, the motorcycle collided with the accused s van, throwing both Bernard and Stacy Cheverie from the bike onto the roadway.
Page: 4 [5] The accused then got out of his vehicle and spoke to another driver who had witnessed the accident, asking if anyone was hurt. He was advised that people were seriously injured and that the witness was calling 911. Then, without giving his name and address and without offering any assistance, the accused got back into his vehicle, drove through the accident scene, around the deceased s body, and proceeded 1.2 km up the Peakes Road to his girlfriend s residence where he was located by police approximately 45 minutes later. Stacy Cheverie was pronounced dead at the scene and Bernard Cheverie was taken to hospital to be treated for his injuries. [6] In the minutes just prior to the accident, Mr. Cantelo had been speaking with his friend and neighbor, Roger Nowe, who lives on the St. Patrick s Road, just 1.7 km from the accident scene. Mr. Cantelo had pulled his van into Mr. Nowe s driveway. When Mr. Nowe arrived at Cantelo s van, Mr. Cantelo got out of the van and started, as Mr. Nowe says, rambling on about the election. Both Mr. Cantelo and Mr. Nowe had run as candidates for the same political party in the provincial election which was held three weeks prior to the accident. Cantelo was angry and agitated and was blaming the world for him not having been elected. Mr. Nowe described the conversation as being pretty much one-sided. Mr. Nowe smelled alcohol coming from Cantelo s breath and noticed that Cantelo was staggering around a bit and that his coordination skills were not what they normally would be. He also noted that Cantelo s eyes did not look normal. [7] As a result of those observations, Mr. Nowe knew Cantelo was drinking and tried to drive him home. He offered to take him home in Cantelo s own vehicle and then have Cantelo s girlfriend drive Mr. Nowe back to his home. He asked Cantelo for his keys. Cantelo refused all of Nowe s offers and stated he was on a back road and he was going home. Cantelo then got into his vehicle, backed out of the driveway without looking, and proceeded down St. Patrick s Road towards the intersection with the Peakes Road where the accident occurred. [8] Mr. Nowe testified that his only other contact with Cantelo since the accident, with the exception of a brief salutation at a social event for a mutual friend, was some days after the accident when Cantelo again arrived at Mr. Nowe s driveway, in the company of Cantelo s son. Mr. Nowe s testimony is that Cantelo asked him at that time to prepare a letter confirming, essentially, that Cantelo was not under the influence of alcohol when he visited in Nowe s driveway just prior to the accident occurring. [9] John Cantelo, the accused s son, testified that he asked Mr. Nowe if his father
Page: 5 had been drinking there - meaning at Mr. Nowe s, on the date of the accident, and that he received the response that Cantelo had not a drop while he was there. That is not inconsistent with Mr. Nowe s testimony, but Mr. Nowe states his conversation was with the accused, not with the accused s son. [10] John Cantelo also testified that he asked Mr. Nowe if his father seemed drunk to which he says Mr. Nowe replied, he seemed fine. That testimony is in conflict with Mr. Nowe s testimony. Mr. Nowe says that he does not recall having that conversation with John Cantelo and was not paying much attention to John Cantelo. Under cross-examination it was suggested to Mr. Nowe that the majority of the conversation that day was between himself and John Cantelo. Mr. Nowe flatly rejected that notion. [11] John Cantelo s testimony confirms that on that occasion it was his father, and not him, who asked Mr. Nowe for a letter with respect to the accused s drinking. Mr. Nowe was clearly under the impression he was being asked to lie with respect to the accused s condition just prior to the accident. John Cantelo maintains his father s request was only with respect to whether the accused had been drinking while he was at Mr. Nowe s property. [12] Where the evidence of John Cantelo and Mr. Nowe conflict, I accept Mr. Nowe s evidence. [13] Mr. Nowe and the accused were longtime friends and neighbors. They had just shared the experience of running for the same political party. It would not be reasonable to expect that during the accused s return visit to Mr. Nowe s house after the accident, the bulk of the conversation would be between Mr. Nowe and the accused s son whom Mr. Nowe had never previously met, as opposed to being between Mr. Nowe and the accused. This is especially true given that the conversation related to what transpired immediately prior to the accident when only Mr. Nowe and the accused were present. [14] Mr. Nowe was unequivocal in his evidence that he attempted to get the accused to turn over his keys and accept a drive home. He did so because of his perception that the accused had been drinking alcohol. There had not been any suggestion that the accused consumed alcohol while he was at Mr. Nowe s residence.
Page: 6 [15] The more significant issue about which Mr. Nowe could testify was the accused s condition just prior to the accident. Mr. Nowe has no vested interest in the outcome of this case. I accept Mr. Nowe s assessment that the request put to him in the days following the accident related to the accused s condition prior to the accident, and not to whether any alcohol had been consumed on Mr. Nowe s premises. [16] On the day after the accident, the accused told police he consumed a number of ounces of alcohol immediately after the accident. While there is no onus on an accused person to say anything, this was not a comment or suggestion that was made at the beginning of his involvement with the police, or even in the somewhat lengthy discussions that took place while the police officer was trying to advise the accused of his rights and trying to demand the accused provide a breath sample, nor during the drive to the Montague detachment. No such suggestion was made until the following day. [17] Not only did the accused tell the police he drank alcohol after the accident, he expressly denied drinking any prior to the accident. As the testimony of the forensic analyst showed, that latter statement of the accused was clearly false. The accused did not testify at trial, but given the falsehood expressed by him in terms of his consumption prior to the accident, I find no basis for accepting his contention, made in police statements, that he consumed alcohol after the accident. However, that conclusion is not essential to the determination of sentence in that the accused pleaded guilty to impaired driving and the Crown is not relying on the specific breathalyzer readings as an aggravating factor. [18] After the accused was located, and during the time of his initial detention, his behaviour, much of which was recorded and presented at trial, can variously be described as being aggressive, arrogant, obstinate, obnoxious, argumentative, offensive, obstructive, cocky, demeaning, disrespectful, and self-serving. He lacked any appropriate measure of self-awareness and failed to acknowledge any role in the tragedy he had caused. There was no sincere expression of sympathy. There was no remorse. Principles of Sentencing [19] The Criminal Code of Canada sets out the purposes and principles of sentencing. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions
Page: 7 that have one or more of the following objectives: a) to denounce unlawful conduct; b) to deter the offender and others 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 and to the community. [20] There are three other general factors that must also be taken into account: i) A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. ii) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and iii) Where a number of charges arise out of the same occurrence we are directed to ensure the combined sentence is not unduly long or harsh. [21] Depending on the nature of the offence, and the frequency of that offence in any community, certain objectives take on a greater significance than others. Here we are once again dealing with the tragic results of impaired driving. So we ask ourselves, what objectives are brought to the fore? What needs to be addressed? [22] Impaired driving can no longer be treated as an Island custom. It can no longer be considered an acceptable part of the Island way of life. It can no longer be seen as ordinary or expected or acceptable behaviour. Impaired driving is a very serious social and community problem on PEI, but first and foremost, it is a serious crime. [23] The courts have a role to play in addressing this problem by imposing sentences that denounce the unlawful conduct and that truly act as a general deterrent in the community against such conduct. A custodial sentence will remove an individual offender from society for a period of time and prevent that offender from committing another similar act. However, in cases of impaired driving, especially with the frequency of that crime running at roughly double the national average, it is equally if not more important for the courts to impose a sentence that sends a clear message to the community in general that such conduct will not be tolerated. If the message is not being received with sentences that have regularly been imposed, then sentences must be increased to drive the point home.
Page: 8 [24] There is a role as well for the community to play in addressing this problem. When a person drinks too much and drives himself or herself home, or from place to place in the community, we can no longer just shake our heads and think, there he goes again, or there she goes again. We owe it to ourselves and to our loved ones to increase our efforts to stop drunk driving on PEI. I commend Roger Nowe for his efforts to stop the accused from driving, by asking for his keys and offering to drive him home. Unfortunately, Mr. Cantelo did not accept those offers. Had he done so, Stacy Cheverie would still be alive today, and the accused would be a free man. We need to address these issues in the community in order to modify people s conduct so they will no longer consider it an option to drink and drive. And further, if someone does find themselves in a position of having consumed too much, they will be receptive to making alternate arrangements. [25] I do not want my comments, in any way, to be taken as trying to shift the blame or responsibility for impaired driving away from any individual committing that offence and to transfer it to the community. It is each individual driver s sole responsibility to refrain from driving while impaired. However, in the same way that we lock our doors at night, or provide proper lighting on dark streets, there are things that we, as a community, can do to deter crime. As Mr. Nowe did, we can suggest and encourage alternative behaviours. Or, perhaps if it became the norm for friends to call 911 to report someone who was about to drive while impaired, individuals would think twice before getting behind the wheel. Notwithstanding an impaired individual may not view it as such, calling 911 in such circumstances ought to be seen as a strong act of friendship. We would be well served by having the phrase, Friends don t let friends drive drunk, become something we live by. [26] Having said that, I want to be clear as well that I am not promoting vigilante activities that could lead to immediate confrontation, but rather a collective change in attitude that will induce a change in behaviour. [27] We live in a largely rural province. Taxis, while readily available in urban areas, are few and far between elsewhere. That may limit the transportation options available to anyone who has been drinking and needs or wishes to go somewhere. However, the degree of responsibility remains exactly the same, regardless of where you are. Nobody has a right to drink and drive. That is not an option. And that applies whether you are in the middle of the city or on a back road, and whether you have to go 100 feet or 100 miles. No one has the right to risk the deadly and far-reaching consequences of impaired driving on the lives of others.
Page: 9 [28] Therefore, as I have indicated, denunciation of the accused s conduct and the general deterrence of such behaviour are the principal objectives to be considered with respect to impaired driving generally and with respect to impaired driving causing death or bodily harm. The imposition of sentence is the only way the community can collectively express its abhorrence of impaired driving. Nothing can bring Stacy Cheverie back. But, perhaps others who would drink and drive will understand that the community will no longer accept such behaviour, and the next victim will be spared. [29] In this case, the death and bodily harm that occurred as a result of the accused s conduct highlight the gravity of the offence. Responsibility for the offence in this case rests solely with the offender. [30] As well, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. One of the difficulties in determining a fair and proper sentence for any crime is that no two situations are ever identical in all respects. We have to consider the circumstances of the offence, the offender himself, the offender s record, the consequences of the offence, and any other circumstances that may bear on the matter. The sentence imposed in any particular case may be higher or lower than other cases which may appear, on the surface, to be similar. We look to precedents in this province and across the country to assist in determining the appropriate penalties to impose in each case [31] In recent years, the usual sentence for impaired driving causing death on PEI has been in the range of one to two years incarceration. Just over a month ago, Clarence Arnold Moase was sentenced to six years incarceration for causing the death of a cyclist while he was driving with a concentration of alcohol in his blood in excess of 80 mg percent (R. v. Moase, 2012 PESC 36). There were some serious aggravating circumstances in that case including that Mr. Moase s breathalyzer reading at the time the accident was 220 mg percent. The Criminal Code declares that confirmed readings over 160 mg percent are to be considered as aggravating factors when imposing a sentence. The most significant aggravating factor in that case was that the accused had four prior drunk driving convictions, had been sent to jail four times, and had his license suspended four times. That did not stop him from drinking and driving a fifth time, with deadly results. [32] In the course of his decision, Justice Mitchell of this Court reviewed various precedents from across the country: - In R. v. Morine, 2011 NSSC 46, the Nova Scotia Supreme Court concluded
Page: 10 the appropriate range of sentence for impaired driving causing death was 3 to 5 years imprisonment; - The Manitoba Court of Appeal in the case of R. v. Ruizfuentes, 2010 MBCA 90, determined it was appropriate to use two ranges, i.e., between two and five years imprisonment for those with no prior record, and between four and eight years for those with prior records; - In the last two years the Ontario Court of Appeal upheld sentences of four years imprisonment in R. v. Rammage, 2010 ONCA 488, and five years in R. v. Junkert, 2010 ONCA 549; - The Ontario Court of Justice also imposed sentence of four years in R. v. Young, 2010 CarswellOnt 5351, after giving a year s credit for pretrial custody, and five years in R. v. Drake, 2008 CarswellOnt 848. Impact on the Victim and Community [33] There have been several Victim Impact Statements filed by various people who are suffering from the loss of their loved one, Stacy Cheverie. Statements, some of which have been read in court, were filed by Bernard Cheverie, Stacy s husband, Natasha MacDonald, Stacy s daughter, Helen McDonald, Stacy s mother, Karen Peters, Stacy s sister, Joanne MacInnis, Stacy s sister, and Boyde and Bertha MacDonald, Stacy s brother and sister-in-law. I have reviewed each of those statements in their entirety, and I thank those who filed them. [34] To say that Stacy was loved by those close to her is clearly an understatement. Her family is deeply saddened and are suffering grief for which they can see no end. The impact on them is palpable. The accused is not only directly responsible for Stacy Cheverie s death, but he is directly responsible for the emotional pain being suffered by all of those who provided victim impact statements and many others who were friends and acquaintances of Stacy. [35] The community suffers as well. The safe, comfortable, happy, secure feeling of the community, both locally and in the broader provincial community, was shattered by this senseless and tragic accident. The selfish, uncaring acts of one person have taken a large toll.
Page: 11 The Offender [36] Ray Cantelo grew up on Prince Edward Island but spent most of his adult life in Ontario and Western Canada. He returned to PEI in 1999 and has spent the majority of the last dozen years on PEI. He is 73 years of age. He had four children, three of whom are still living, all of whom reside in Western Canada. Mr. Cantelo currently resides with his partner Winnie Murphy. He has been involved as a community volunteer and provides musical entertainment at local ceilidhs. He has been involved in the political scene on PEI and recently offered as a candidate in the provincial election. Mitigating and Aggravating Factors [37] In terms of aggravating and mitigating factors, it is a mitigating factor that he has no prior criminal record and no prior driving record. As well, I note, there is no record of any alcohol abuse. Defence counsel submits that notwithstanding the guilty plea was offered late in the day, it still stands as an acceptance of responsibility and constitutes a mitigating factor to some degree. She points out as well, and it is true, that the accused did concede a number of points before the trial began which significantly reduced the number of Crown witnesses, and therefore the length of the trial. [38] Every accused has the right to a trial and to maintain his innocence. Doing so is not to be held against anyone. However, when someone enters a guilty plea, normally it is taken as a sign of a person s remorse and as acceptance by them of their responsibility with respect to the offence. That is particularly true when a guilty plea is entered at an early stage in the proceedings. In this case, there was a preliminary inquiry followed by a trial in which the Crown completed its case and the defence presented its first witness before entering a change of plea. Bernard Cheverie, who suffered significant bodily harm in the accident and who lost his wife and best friend was required to testify. The evidence presented up to the point at which the trial stopped was overwhelmingly in favour of conviction. I consider the guilty plea to be more an act of resignation than a sign of remorse. Notwithstanding that, by entering a guilty plea, the accused does allow for a certain degree of closure to the matter and that does have some mitigating value. [39] I consider some of the circumstances surrounding the commission of this
Page: 12 offence to constitute aggravating factors in terms of determining the sentence. In particular, there is the fact that literally two minutes prior to the accident, the accused was pointedly made aware of the fact that he was impaired. How often does it happen that a friend asks for your car keys because of your condition? And then follows up with an offer to drive you and your vehicle home? And the accused dismissed those offers preferring instead to take his chances on the back roads. [40] Following the accident, the accused fled the scene. This was not a circumstance where the accused carried on because he did not know or was not sure there had been a collision. Nor was it a circumstance where the accused knew there had been a collision but fled without knowing the consequences of that collision. In this case, the accused got out of his vehicle, surveyed the scene, and specifically asked if people were injured. When he was informed they were very badly injured he got back into his vehicle and took off. Such callous, reprehensible behaviour deserves significant denunciation. [41] We continually refer to this as having been an accident. It is true that a motor vehicle accident occurred. However, Stacy Cheverie did not die as a result of a motor vehicle accident. She died as a result of a crime. A crime that was very preventable. A crime that happens all too frequently on Prince Edward Island. Crown and Defence Positions [42] The Crown and Defence each presented submissions regarding the breakdown of sentence. [43] The Crown is seeking a sentence of incarceration for four years in respect of the charge of impaired driving causing the death of Stacy Cheverie. They are seeking an additional 18 month jail term in respect of impaired driving causing bodily harm to Bernard Cheverie. With respect to the charge of fleeing the scene of the accident, they consider a period of 12 months incarceration to be appropriate. However, bearing in mind the totality principle which requires that the cumulative sentence for multiple offences arising from the same incident not be excessive, the Crown seeks a global sentence of five to 5 ½ years incarceration. [44] The Crown also seeks a DNA order given that the offence of failing to stop at the scene of an accident is a secondary designated offence for the purposes of collection of DNA. In assessing this request, the court is required to consider the person s criminal record, if any, the nature of the offence, the circumstances
Page: 13 surrounding its commission and the impact such an order would have on the privacy and security of the individual. I consider it appropriate with respect to the crime of leaving the scene of an accident for an accused person to be required to provide a DNA sample and I do not consider the taking of the sample to have any significant impact on the privacy and security of the individual in this case. [45] The Crown is also seeking a 10 year driving prohibition pursuant to section 259 (2)(b) of the Criminal Code. [46] Defence counsel acknowledges that a significant sentence is required and proposes a sentence of four years incarceration in respect of impaired driving causing death. Defence counsel submits that a sentence of 12 to 14 months incarceration is appropriate with respect to the charge of impaired driving causing bodily harm, but submits that sentence should be served concurrently with the sentence for impaired driving causing death as both charges arose from the same conduct. [47] Finally, Defence counsel submits that a sentence of six months is appropriate for the offence of leaving the scene of the accident, and that, based on the totality principle, that sentence should also be served concurrently, as opposed to consecutively, as having arisen out of the same incident. [48] I accept Defence counsel s submission that the charges of impaired driving causing death and impaired driving causing bodily harm arose from the same incident and that sentences for those offences would appropriately be served concurrently. With respect to the charge of impaired driving causing bodily harm, Bernard Cheverie suffered multiple severe injuries, many of which continue to cause pain and discomfort, and which act as a reminder of this horrific event. The sentence on this charge needs to be at the higher end of the range. [49] With respect to the offence of leaving the scene of the accident, I consider that to be conduct separate and apart from the accident itself and deserving of a sentence to be served consecutively to the other sentences to be imposed.
Page: 14 Conclusion [50] Mr. Cantelo, I would ask you to stand please. [51] With respect to the offence of impaired driving causing the death of Stacy Cheverie, contrary to section 253(1)(a) and section 255(3) of the Criminal Code, I sentence you to serve a period of incarceration of four years; [52] With respect to the offence of impaired driving causing bodily harm to Bernard Cheverie, contrary to section 253(1)(a) and section 255(2) of the Criminal Code, I sentence you to serve a period of incarceration of 18 months, concurrent to the sentence just imposed; and [53] With respect to the offence of failing to stop your vehicle, give your name and address and offer assistance to Stacy Cheverie, an injured party, with intent to escape criminal or civil liability, contrary to section 252 (1.3) of the Criminal Code, and considering as well, pursuant to section 725 of the Code, the circumstances relating to Bernard Cheverie and his injuries, I sentence you to serve a period of incarceration of one year, consecutive to the sentences just imposed, making the total sentence imposed on you one of five years incarceration. [54] In addition I grant the Crown s request for a DNA order, and pursuant to section 259 (2)(a.1) of the Criminal Code you are prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of 10 years following your release from penitentiary. [55] I waive the imposition of the victim surcharge. [56] You may be seated. January 30, 2013 Campbell J.