PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN. against. JAMES CALVIN McFADDEN

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1 Citation: R. v. McFadden Date: PESCTD 67 Docket: S1-GC-275 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN against JAMES CALVIN McFADDEN Before: The Honourable Mr. Justice Gordon L. Campbell John McMillan - Solicitor for the Crown Thane MacEachern - Solicitor for the Accused Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island August 8, 2003 Charlottetown, Prince Edward Island September 3, 2003

2 Citation: R. v. McFadden 2003 PESCTD 67 S1-GC-275 HER MAJESTY THE QUEEN against JAMES CALVIN McFADDEN Prince Edward Island Supreme Court - Trial Division Before: Campbell J. Date of Hearing: August 8, 2003 Date of Judgment: September 3, 2003 [13 pages] Impaired driving causing death - blood alcohol level exceeding 160 mg/100 ml - aggravating factor - s of Criminal Code - appropriateness of conditional sentence - need for denunciation and general deterrence. CASES CONSIDERED: R. v. Wismayer (1997) 115 C.C.C. (3d) 18; R. v. Proulx [2001] SCR 61; R. v. Elliott, [2001] SK.C.A. 19; R. v. Silbernagel, [2001] B.C.S.C. 1846; R. v. Taylor, [2000] B.C.S.C. 734; R. v. Cunningham, [1998] O.J. No. 971; R. v. Poole, [2001] O.J. No. 3934; R. v. Biancofiore (1997), 119 CCC (3d) 344. TEXT CONSIDERED: Criminal Code of Canada, R.S.C. 1985, Chap. C-46, ss John McMillan - Solicitor for the Crown Thane MacEachern - Solicitor for the Accused

3 CAMPBELL J.: [1] The accused has pleaded guilty to a charge of impaired driving causing death contrary to sections 253(a) and 255(3) of the Criminal Code. Section 255(3) states: (3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life. [2] Counsel for the Crown and the defence submitted an agreed statement of facts outlining the tragic events that bring us to this point today. These facts are as follows: On Saturday, September 14, 2002, James Calvin McFadden [D.O.B ] and Arnold James Birt [D.O.B ] were involved in a softball tournament in Montague, P.E.I. Mr. McFadden consumed 3 beer between 10:00 am and 6:30 pm when he left the ball park. He then went to his home in Midgell and showered and changed. Mr. McFadden and his fiancée then went to the Diner for supper. Between 8:15 pm and 10:00 pm he consumed 2 more beer. Mr. McFadden and his fiancée returned to his house at approximately 10:00 pm. His fiancée then took her car and went home. Mr. McFadden drove his truck back to the Diner. At the Diner he met up with Arnold Birt. Mr. Birt and Mr. McFadden were friends and played on the same ball team. Mr. McFadden drank 2 more beer between 10:15 pm and 12:00 midnight. Mr. McFadden then drove Mr. Birt to Charlottetown where they attended at Breakers Lounge. While at Breakers Mr. McFadden consumed 3 more beer between 1:00 am and 2:00 am. Mr. McFadden and Mr. Birt left Breakers and walked up to Myrons. The two met a third friend and drove him to his residence on University Avenue. Mr. McFadden and Mr. Birt left Charlottetown for home sometime after 3:00 am. Mr. McFadden was driving. In Dunstaffnage just before the Car Museum, Mr. McFadden passed a vehicle driven by Blair MacLeod. Mr. MacLeod provided a statement indicating that he was travelling 80 kms when Mr. McFadden s vehicle passed him. In West St. Peters, Mr. McFadden fell asleep, and drove his truck into the ditch, hitting a power pole. Mr. MacLeod was the first person on the scene. He indicated that Mr. McFadden got out of the pick-up on the driver s side, and approached him asking him to get help. Mr. McFadden was bleeding from the ears and had blood on his pants. Mr. MacLeod checked on Mr. Birt, who was sitting on the passenger side, and witnessed him taking several deep breaths and then believes that he died. This was approximately 4:30 am. Mr. MacLeod left the scene to call for help. He travelled to Morell and then back to a residence closer to the accident where he called 911.

4 Page: 2 Mr. McFadden did not know if Mr. MacLeod was going to come back, so he left the scene to try to find help on his own. He went to the nearby residence of Tracey Gaudet. Ms. Gaudet gave a statement indicating that Mr. McFadden came to her door covered in blood. He stated "we put the car in the ditch". He told her that Arnold Birt was with him and that he was hurt badly. Mr. McFadden then started to cry. Ms. Gaudet went to a neighbour s to call 911 and then came back to her residence. She took Mr. McFadden to a barn close to the road and waved down a fire truck for assistance, as he was not able to take her to the accident scene. The police arrived at the accident scene at 5:20 am. Mr. McFadden was being placed into Neil s Ambulance at that time and transported to the Queen Elizabeth Hospital. Mr. Birt was pronounced dead at the scene of the accident. The RCMP arrived at the Queen Elizabeth Hospital at 6:30 am. After Mr. McFadden was treated by medical personnel he was cleared to give blood. Pursuant to a blood demand, two blood samples were taken at 7:32 am and 7:33 am. A Forensic Lab report dated October 29, 2002 found the blood sample collected at 7:33 am contained 163 milligrams of ethyl alcohol per 100 ml of blood (mg %). A further report, dated February 17, 2003, contained an extrapolation of the blood alcohol concentration back three hours to the approximate time of the accident. The report suggests that the blood alcohol concentration would have been in the range of mg % at 4:30 am. Mr. McFadden has no previous criminal record. [3] The Crown is seeking a sentence of incarceration for a period of less than two years, while the defence is requesting a conditional sentence of between fifteen and twenty-four months. [4] The Crown Prosecutor reviewed the sentencing and legislative history for offences involving drunk driving causing death. Up to 1985 such offences were either characterized as criminal negligence causing death with a maximum sentence of life imprisonment or dangerous driving causing death with a maximum sentence of fourteen years imprisonment. Because of the chronically high number of impaired driving related offences, in 1985 Parliament added the offence of impaired driving causing death with which the accused is charged. At the time that offence was introduced it carried a maximum sentence of fourteen years imprisonment. The fact that Parliament has increased the maximum sentence for that offence to life imprisonment is an indication of the seriousness with which the offence is viewed by Parliament. [5] Crown counsel also pointed out that prior to 1985 the standard sentence imposed for a first time impaired driving offence on Prince Edward Island was a fine

5 Page: 3 of between $300 and $500 and a limited driving prohibition. Shortly after 1985 the standard sentence imposed on PEI for such an offence became a three day jail term plus a fine and a driving prohibition. The Crown contends that as a result of these harsher sentences and other societal pressures, the number of impaired driving or breathalyzer convictions have dropped from approximately 1500/year in 1985 to less than 500/year now. The standard sentence imposed on PEI for a first conviction of impaired driving is now one day in jail together with a fine in the range of $900 and a driving prohibition. [6] In 1995 Parliament passed section of the Criminal Code providing for conditional sentences. For offences where there was no minimum term of imprisonment and where the Court was going to impose a sentence of less than two years imprisonment, the Court could order that the sentence be served in the community if doing so would not endanger the community. The Ontario Court of Appeal in R. v. Wismayer (1997), 115 C.C.C. (3d) 18 interpreted this new provision as directing the courts to impose conditional sentences as the first option. In response to this decision, on May 2, 1997, Parliament amended section 742.1(b) to add the condition that the sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to which state: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender A court that imposes a sentence shall also take into consideration the

6 Page: 4 following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, (ii) evidence that the offender, committing the offence, abused the offender s spouse or common-law partner or child. (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances

7 Page: 5 of aboriginal offenders. [7] In 1999, Parliament amended the Criminal Code and added section which requires that in considering the list of aggravating circumstances for sentencing purposes under section 718.2(a) it is deemed to be an additional aggravating factor if the offence was committed by means of a motor vehicle while the concentration of alcohol in the offender s blood exceeded 160 milligrams of alcohol in 100 millilitres of blood. (Over 160.) The standard breathalyzer or blood analysis charge relates to a reading of over 80 milligrams per 100 millilitres. This additional aggravating factor comes into play when the offender has consumed more than double the legal limit and is over 160. The accused in this case had a reading of between 193 and 223 milligrams per 100 millilitres. [8] The leading case on the application of conditional sentences is the Supreme Court of Canada decision in R. v. Proulx, [2001] 1 SCR 61. That case confirmed that serious consideration of imposing a conditional sentence is to be undertaken with respect to all offences in which the statutory prerequisites are satisfied. While no offences are to be excluded from such consideration, the gravity of the offence is a relevant factor in determining whether such a sentence is appropriate. Even while requiring serious consideration of such a sentence for all qualifying offences, the Court clearly expressed that there is no presumption in favor of conditional sentences and there may be circumstances, specifically including dangerous driving and impaired driving offences, which warrant the harsher penalty of incarceration. The Supreme Court of Canada also confirmed that in sentencing, Courts do not have to fix a term of imprisonment and then decide whether that term should be served in jail or in the community. The Court can decide on a period of time for a conditional sentence and the term of that sentence can be longer than would have been the case if the sentence was actually to be served in jail. [9] Any sentence must take into consideration the codified principles of sentencing. The Crown argues that the foremost principle to be considered in cases such as this is that of general deterrence. The Crown concedes that this particular offender is very remorseful for his actions and has accepted full responsibility for the tragic consequences. They concede also that this offender is not a danger to society or the community, and he does not, for that reason, need to be separated from society. The pre-sentence report recommends as part of the rehabilitation of the offender, that he undergo assessment and counselling related to addictions and that he receive grief counselling both of which could be undertaken whether the sentence includes incarceration or not. [10] The Court has been presented with several very emotional and moving victim impact statements from the deceased victim s family members. It is clear that they are

8 Page: 6 suffering heart wrenching agony over the loss of Arnold Birt who was a family member they dearly loved. Yet their victim impact statements are not bitter and angry with respect to the offender. They are compassionate and forgiving. Some of the statements even express that, but for the grace of God, Arnold might have been the one left to carry the burden of causing a friend s death a fate they say he would have considered to be worse than death. There are letters of support from community members and from the accused s mother asking for the Court s mercy and pleading that the offender not be sent to jail. [11] The Crown, however, focuses on the need for general deterrence. They are asking for the Courts to send a message to the wider community on Prince Edward Island that drinking and driving will not be tolerated especially when it leads to such serious consequences. They make particular reference to the recently added section of the Criminal Code requiring the Court to consider any blood alcohol reading over 160 to be an aggravating factor. They point out that for offences of straightforward impaired driving or over 80 that do not involve dangerous driving or any property damage, bodily injury, or death, the minimum sentence includes one day in jail. They ask how can it be that you go to jail for impaired driving but that you do not go to jail for impaired driving causing death. [12] Defence counsel argues that a conditional sentence constitutes a serious deprivation of liberty and significant punishment and provides ample general deterrence, perhaps even more than would a period of incarceration. Members of the community in which the offender lives would regularly be reminded of the offender s punishment by seeing him in the community only for the purpose of going to and from work or attending medical appointments and the like. This particular offender is actively involved in many recreational activities such as baseball, hockey, hunting, and fishing. Seeing him present in the community for limited purposes knowing that he must return to house arrest rather than enjoy his recreational pursuits and other freedoms would act as a constant reminder of the consequences of drinking and driving. Supported by the Proulx decision, the defence would also argue that the principles of restorative justice and the objective of making reparations to the victims and the community are better addressed by maintaining the offender s exposure to the community than by putting him behind bars. The stigma of being an offender and the shame felt from having caused such a tragedy would be muted if the offender is sent to jail. [13] Chief Justice Lamer addressed the issue of denunciation in Proulx. He stated that, Denunciation is the communication of society s condemnation of the offender s conduct. At paragraph 102 he said:... a sentence with a denunciatory element represents a

9 Page: 7 symbolic, collective statement that the offender s conduct should be punished for encroaching on our society s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974) 60 Cr. App. R. 74, at p. 77: society through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.... [14] Later at paragraph 106 he said:... As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society s condemnation of the offender s conduct. And at paragraph 107: Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [15] At paragraph 113, Lamer C.J. concludes:

10 Page: 8 In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive. Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually. [16] It is useful to put Chief Justice Lamer s comments into context by reference to the fact situation in Proulx. After a night of partying involving consumption of some alcohol [it was found to be 2 beer or less], the accused decided to drive his friends home even though he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the accused, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. As the accused was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, sideswiped a first car and crashed into a second one. The driver of that second vehicle was seriously injured. The accident also claimed the life of a passenger in the accused s car. The accused was in a near-death coma for

11 Page: 9 some time, but ultimately recovered from his injuries. The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. He was sentenced to 18 months of incarceration, to be served concurrently on both charges. The sentencing judge concluded that a conditional sentence pursuant to s of the Criminal Code, which would allow the accused to serve his sentence in the community, would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence. The Court of Appeal allowed the appeal and substituted a conditional custodial sentence for the jail term. The Crown appealed to the Supreme Court of Canada. [17] Chief Justice Lamer considered the decisions of the Court of Appeal and of the Manitoba Court of Queens Bench where Keyser, J. was the sentencing judge. He stated (at paragraph 5): Keyser J. then turned her attention to the question of whether it was appropriate to allow the respondent to serve his sentence in the community, pursuant to s of the Criminal Code, R.S.C. 1985, c. C- 46. She took notice of the May 2, 1997 amendment to s , which added to that section an express reference to the fundamental purpose and principles of sentencing listed in ss. 718 to of the Code. She concluded that this amendment meant that she had to refer to the fundamental purpose and principles of sentencing in deciding whether to impose a conditional sentence. In the case at hand, she found that even though the respondent would not endanger the community and a jail sentence would not be necessary to deter him from similar conduct in the future or to rehabilitate him, a conditional sentence would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence. [18] Later in his judgement, starting at paragraph 128, Lamer C.J. noted:... In her view, even if incarceration was not necessary to deter the respondent from similar future conduct or necessary for his rehabilitation, incarceration was necessary to denounce the conduct of the respondent and to deter others from engaging in similar conduct. While Keyser J. seems to have proceeded according to a rigid two-step process, in deviation from the approach I have set out, I am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender. I point out that the offences here were very serious and that they had resulted in a death and in severe bodily harm. Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: See: R. v.

12 Page: 10 McVeigh (1985), 22 C.C.C. (3d) 145 (Ont.C.A.), at p. 150; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont.C.A.), at paras ; R. v. Blakeley (1998), 40 O.R. (3d) 541 (C.A.), at pp I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving. In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case.... [19] He discusses some of the specific considerations in that fact situation but concludes that the sentence imposed by the trial judge was appropriate and that the Court of Appeal erred in holding that the sentencing judge had given undue weight to the objective of denunciation. The 18-month sentence of incarceration was restored. [20] In this case, McFadden and his friend Mr. Birt were drinking together following a day in which they participated in a softball tournament. There was some alcohol at the tournament and Mr. McFadden consumed more early in the evening. He then rejoined Mr. Birt and they resumed drinking. Mr. McFadden should have made a conscious decision not to drive and not to risk taking his or someone else s life. While he obviously never made a conscious decision to take someone s life, he did, at several points during the evening, knowing he was drinking, make a conscious decision to drive. After dinner, at which Mr. McFadden drank two beer in addition to the amount he had at the tournament, he drove back to the diner. After drinking more beer at the diner, he drove to Charlottetown. After drinking more beer at Breaker s Lounge in Charlottetown, he drove to a residence on University Avenue. Finally he made the fateful decision to drive to his home in Midgell. On each of these occasions he was consuming alcohol and made a conscious decision to drive. If they had had a designated driver, or if on any one of these occasions he had turned over the keys to someone else or taken a taxi or called a friend or relative for a drive or stayed overnight at a friend s house life would be different today. Everyday there are drivers who are faced with these choices. At every ball tournament, house party, summer barbecue, or night on the town where alcohol is consumed, choices must be made. You can either drink or drive but you cannot do both. I am of the view that there is a pressing need for people in those types of situations to make a different choice than that made by Mr. McFadden. I do agree with the Crown that the dominant principles to be considered in this case are those of denunciation and general deterrence. What will be most effective in addressing those issues? [21] Between Crown counsel and defence counsel, I have been referred to approximately thirty cases dealing with similar charges of impaired driving causing death involving similar sounding stories all with the same tragic ending. Twenty of those cases were decided since the introduction of conditional sentences. Sentences range everywhere from seven months conditional sentence to three and one-half

13 Page: 11 years in jail. Most specifically address the issue of denunciation and deterrence. In some cases they conclude those issues can be addressed in the context of a conditional sentence and in others that conclude that a period of incarceration is essential to properly reflect society s denunciation and send a message that will deter others from similar behaviour. What is clear is that each case is based very much on its own facts and set of circumstances. [22] Among the cases is R. v. Elliott, [2001] SK.C.A. 19, in which the accused pleaded guilty to impaired driving causing death, and the Court imposed an eighteen month sentence to be served in the community. Mr. Elliott had consumed beer throughout the evening with friends up until he left for home some time after 2:00 a.m. On route, his truck left the road and struck a pole. The passenger in the vehicle died. Elliott s blood alcohol level was 120. The Court of Appeal held that the trial judge had considered all of the appropriate principles of sentencing and they dismissed the Crown s sentencing appeal. [23] In R. v. Silbernagel [2001] B.C.S.C. 1846, both the accused and his girlfriend had been consuming alcohol. The accused was driving at 114 kms/hr in an 80 km/hr zone when his truck flipped, killing his girlfriend. The accused pleaded guilty to impaired driving causing death. He admitted to consuming beer and wine with dinner prior to the accident. There was a long list of mitigating factors, and the accused had strong support from the community. He was sentenced to a conditional sentence of two years less a day. [24] In R. v. Taylor [2000] B.C.S.C. 734, the British Columbia Supreme Court sentenced a 25 year old accused to three and one-half years imprisonment on one count of impaired driving causing death. The accused failed to stop at a four-way intersection, killing a passenger in the vehicle he struck. His blood alcohol readings were 160 and 170 milligrams of alcohol per 100 millilitres of blood. He was also sentenced to an additional six months for failing to remain at the scene of the accident. [25] In R. v. Cunningham, [1998] O.J. No. 971, an accused with blood alcohol readings of between 210 and 240 was sentenced to 18 months incarceration for the offence of impaired driving causing death. The Court adopted the view that while a conditional sentence can have denunciatory value, it was not appropriate in that case as it would be inadequate to address the principles of general deterrence and that of denunciation. [26] At the lowest end of scale in terms of sentence is R. v. Poole, [2001] O.J. No The accused s vehicle suddenly swerved into oncoming traffic, killing the driver of another vehicle in a head on crash. The accused s breathalyzer readings

14 Page: 12 were 190 and 200. In the absence of any information before the Court about when, what amount, and under what circumstances the alcohol was consumed and for how long the accused had been driving, the Court declared itself to be incapable of assessing the level of moral blameworthiness to be attributed to the accused. In sentencing the accused to a conditional sentence of seven months, the Judge stated Had there been any evidence of a prolonged pattern of driving, or of improper driving, I would almost inevitably have ordered that [the] accused be incarcerated. [27] In R. v. Biancofiore (1997), 119 CCC (3d) 344, the Ontario Court of Appeal reviewed the special status of drinking and driving crimes and reiterated the need to maintain a tough approach so as to avoid a destigmatization of drinking and driving offences. [28] I have assessed the mitigating and aggravating factors present in this case. In point form, the mitigating factors in the offender s favor are: - he pleaded guilty; - he has no previous criminal record; - he is a person of good character and has a positive pre-sentence report; - he is gainfully employed; - he has not consumed alcohol since the accident; - he is genuinely and deeply remorseful; - the victim s family is compassionate and understanding towards him; and - he has received support from within the community. [29] The significant aggravating factor against the offender is the blood alcohol level he had at the time of the accident. Not only did he exceed the maximum legal limit of 80 milligrams of alcohol per 100 millilitres of blood but he exceeded double that amount. At minimum, his reading was 193 milligrams. At that level, he was exceedingly drunk. [30] The principle of proportionality requires that I assess the gravity of the offence

15 Page: 13 and the moral blameworthiness of the offender. The offence of impaired driving causing death is a gravely serious offence. A person s life has been taken. The consequences don t get any more serious or any more final. The offender in this case intentionally engaged in risk taking behaviour that led to these consequences. He has a high degree of moral blameworthiness. Notwithstanding that the statutory prerequisites have been met thereby making a conditional sentence an option, after serious consideration I am of the view that a period of incarceration is required in this case to adequately reflect society s abhorrence of and intolerance for such behaviour and to send a clear message to everyone that the only choice to make when you are going to be drinking is to not drive. [31] The many mitigating factors in the offender s favor have served to substantially reduce his custodial sentence from what it otherwise would have been. Mr. McFadden, on all of the circumstances, I am sentencing you to serve a term of incarceration of one year in a Provincial Correctional facility, followed by a term of probation of two years, the terms of which are that you keep the peace and be of good behaviour; report to a probation officer as and when required; abide by the other statutory conditions; and that you undergo any treatment or counselling prescribed by your probation officer related to addictions issues or mental health issues, including grief counselling. [32] There will also be an order pursuant to section 259 of the Criminal Code prohibiting you from operating a motor vehicle for a period of two years from today s date. [33] The Crown confirmed at the sentencing hearing that it was not seeking either DNA samples or a weapons prohibition available pursuant to the Criminal Code. September 3, 2003 Campbell J.