Décision

[1]           Jacob Guillon pled guilty to one count of impaired driving causing bodily harm and one count of leaving the scene of an accident with intent to escape civil and criminal liability without rendering assistance to an injured person.

[2]           Both offences are punishable by a sentence up to 10 years of imprisonment.

FACTS

[3]           On May 2, 2013, at approximately 3:23 AM, the offender was heading home travelling northbound on Highway 15 in a Chevrolet Camaro. Visibility was good, asphalt was dry traffic was light.

[4]           Driving in the right lane and upon noticing that he had passed the exit for Highway 20 W./720 E., the offender immobilized his vehicle and slowly reversed it to allow him to proceed towards the 20 W./720 E. exit.

[5]           While the offender is in reverse and driving slowly, the victim, on his motorcycle, noticed the car moving in reversed. He was driving in the left lane when at one point, he was within 60 metres of the offender’s car that was perpendicular to the traffic lanes, and consequently obstructing his lane. He could not avoid the impact and he hit the offender’s car. He was ejected from his motorcycle and projected over the Camaro.

[6]           After the impact, the offender immediately left the scene of the accident to take Highway 720 eastbound. More than 35 minutes later, a SPVM agent saw a red Camaro with damages at the rear end going southbound on Park Avenue and proceeded to stop the vehicle. A strong odour of alcohol was present in the offender’s vehicle. Given the breath samples were not obtain in conformity with the provisions of the Criminal code, a “retro calcul” was provided[1] which estimates the blood alcohol level of the offender at the moment of the accident between 86 and 152 mg/100 ml. At the preliminary inquiry, the chemist testified that the blood alcohol level of the offender was probably over 100 mg/100 ml.

THE OFFENDER

[7]           Jacob Guillon is 26 years old. He was 21 at the time of the event. He is now married and father of a young daughter since last May. At that time of the offences, he had recently graduated from Dawson College’s Law Society and Justice program and he was just beginning is undergraduate studies at Concordia University’s Religion program. Now he defends his master in religion. He is looking on obtaining a PhD.

[8]           According to the presentence report, « [L]’analyse de l’historique sociale du justiciable ne révèle pas de problématique ni de trouble qui aurait pu créer des périodes de désorganisation. Monsieur Guillon semble avoir évolué adéquatement durant son adolescence et l’âge adulte et il demeure toujours investi dans ses projets académiques. »

[9]           In a statement read in court, the offender assumes responsibility and recognizes the facts. He regrets the incident and he is remorseful. In court, he turned to the victim and apologized. He demonstrated an empathetic and sincere sympathy for the victim who seemed to take it sincerely. The victim, present in the courtroom at the time, said that he understands and forgives.

[10]        The offender is without prior and he is fully supported by his family.

the victim

[11]        The victim is a bus driver. Following the impact with the offender’s car, he sustained multiple bruises on his thighs and a laceration to the right knee. There were no fractures. He told the court that the following two years after the event, it was psychologically tougher but today, there’s no sequel. As for the physical consequences, he doesn’t have any except a bump under the right knee that it is still uncomfortable and inconvenient when he puts the knee down. Finally, he considers his injuries as light, given the incident.

Factors considered

[12]        The appropriate aggravating and mitigating circumstances examined and applied are:

Aggravating:

·        Dangerousness of the maneuvers

·        Driving record

Mitigating:

·        Guilty pleas

·        Youth

·        No criminal record

·        Regrets and remorse

·        Sincere apologies and sympathy

·        Family support

·        Actual personal situation: married, father, bright future

·        No risk of reoffending

SUBMISSIONS

[13]        The Crown submits that the objectives of deterrence and denunciation should prevail and can only be achieved by a sentence of imprisonment. A proportionate sentence that reaches these objectives, reflects the gravity of the offence, the responsibility and the profile of the offender would be 90 days in jail to be served intermittently in addition to 240 hours of community service.

[14]        The defence submits that the objectives of deterrence and denunciation can be achieved by a sentence without imprisonment, and that the objectives of rehabilitation and reparation can be better served by a fine and the imposition of community service. The defence argued that the commission of the offence was an isolated and greatly regretted incident, caused by a youthful first offender with a lack of maturity who is not the same person today who committed the crime in 2013.

DISCUSSION

[15]        Despite countless awareness campaigns conducted over the years, impaired driving offences is still a plague and courts from the various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation.

[16]        In addition to the fundamental purpose of sentencing mentioned at section 718 of the Criminal code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The sentence should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances and the offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

[17]        In 2015, the Supreme Court mentioned in Lacasse[2] that those objectives are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence.

[18]        The principle of proportionality is central to the sentencing process. It commands a sentence that both speaks out against the offence and punishes the offender no more than is necessary. Reiterating Nasogaluak[3], our Court of Appeal in Fedele recently wrote this about the proportionality:

« Ce principe comprend deux aspects principaux, soit celui voulant que la détermination de la peine doive refléter la réprobation de la société à l’égard de l’infraction en cause (la gravité objective de l’infraction), lequel est tempéré par le deuxième aspect du principe voulant que la peine infligée doive correspondre à la culpabilité morale du délinquant (la gravité subjective de l’infraction) ».

[19]        Sentencing cases for offences involving driving causing bodily harm focus on the circumstances of the offence and the offender, which are highly variable and result in a wide range of sentences. The sentencing cases cited by both parties reflect that reality. The facts in many of the decisions bore little resemblance to those in this case. Different offences, high level of intoxication, serious injuries or death, offenders with different personal situations are among notable differences between those cases and the present one.

[20]        Two years ago, the Court of Appeal in Lemaire[4] recalled that for the offence of impaired driving causing bodily harm, the range of sentences is between 90 days to two years of imprisonment.

[21]        As for the offence of leaving the scene, based upon the cases of Evans-Renaud[5], Harrison[6], Gejdos[7] and Croteau[8] and given also that “[N]ormally, the aggravating factors of death or serious injury and the consumption of alcohol will lead to a sentence in the range of six months to one year,” as Clayton Ruby writes in his book Sentencing[9], I am of the view that in the present case, the range is of three to 9 months.

[22]        As mentioned in Lacasse, there will always be situations that call for a sentence outside a particular range. Indeed, the fact that each crime is committed in unique circumstances by an offender with a unique profile has to be considered. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond the purely mathematical calculation. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case[10].

[23]        Speaking of the degree of responsibility and the specific circumstances of the offence, the Defence submits that what happened in the early hours of May 2, 2013, was an accident. He adds that the offender was careless, due to his youth, his immaturity and his alcohol consumption. For him, it was an anomaly, an aberration and that with the passing of time, the offender is not the same person who committed the offences.

[24]        The Alberta Court of Appeal wrote in Gejdos that “[R]esponsibility, however, is still primarily informed by the circumstances existing at the time of the offence, not whether the offender was subsequently remorseful or rehabilitated. That is particularly the case with an offence like impaired driving, which is often committed by otherwise upstanding citizens, with no prior criminal history, who subsequently realize fully the inappropriateness of their criminal behaviour. The moral culpability of such an offender is, however, primarily to be measured at the time they get behind the wheel while impaired, and make the selfish and dangerous choice to drive on the public highways.[11]”

[25]        The Court also wrote that “the fact that the offences were an “anomaly” for the offender is a common feature of impaired driving convictions and does not negate his moral culpability to the extent suggested[12].”

[26]        It’s true to say that the offender didn’t plan being struck by the victim’s motorcycle. It is of judicial knowledge that highways 15 and 720 are amongst the most used highways in Montreal. One who drives on those highways, even if it’s almost 3:30 in the morning, must expect encounters with other vehicles. Hence, one who drives in reverse on those highways, even if it’s almost 3:30 in the morning, execute a careless, a reckless, a dangerous maneuver. In the present case, this maneuver was followed by another dangerous one: placing his car perpendicular to the traffic lanes and therefore, blocking them.

[27]        The evidence doesn’t support any inference that the victim may have contributed to what happened, such as careless driving or mechanical issues with the motorcycle, as suggested by the Defence.

[28]        Thus, I am on the view that the impact with the victim motorcycle was not purely accidental and was caused by a careless, a reckless dangerous driving[13] from the offender.

[29]        This passage of the case of Gauthier[14] applies to the present case : « il y a divers degrés de responsabilité lors de la commission d'une conduite dangereuse. Certains gestes, dont notamment la vitesse excessive et la conduite erratique relèvent d'actes délibérés et seront punis plus sévèrement. D'autres se rapprochent davantage de l'accident et engendreront une responsabilité moindre ».

[30]        Therefore, even if the moral culpability of the offender is not as great as someone who intentionally cause an impact with another vehicle, I conclude that the execution of the two driving maneuvers by the offender raises considerably his degree of responsibility.

[31]        As for the youth and immaturity of the offender, without excluding them totally of my considerations, they should not be given that much weight as mitigating factors. As mentioned by Justice Dalphond, dissenting in Levesque-Chaput[15], « l'âge de l'intimé au moment du grave accident, 19 ans, et non 20, ne saurait être un élément en sa faveur, à moins d'accepter le principe que les jeunes conducteurs ont le droit à l'irresponsabilité. Le détenteur d'un permis de conduire est tenu aux mêmes normes de prudence indépendamment de son âge. »

[32]        On the same topic, the Supreme Court wrote, at paragraph 79 of Lacasse that “[A]lthough 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.”

[33]        The Defence also submits that I should consider the low level of intoxication of the offender. I disagree. If a high level of intoxication can become an aggravating factor, as specified by the legislator at section 255.1 of the Criminal code, a low level of intoxication is not mitigating. Impairment is an essential element of the offence. Hence, a blood-alcohol level that was probably over 100 mg, as written previously, is not a mitigating factor.

[34]        As for the guilty pleas, it must be noted that they happened 5 ½ years after the events. The Defence submits that it can’t be unfavourable because they followed a useful preliminary inquiry that allowed the parties to provide an agreed statement of facts, which explains the delay. He adds that it took time to prosecute. I don’t have details on how the procedures developed but I note that it took four years before the preliminary inquiry was held. This is definitely not what I call fast and early guilty pleas. Without being unfavourable or neutral, this mitigating factor doesn’t have much weight.

[35]        Even though the remorse and the regrets expressed by the offender are real and sincere and that he acknowledged the facts and his responsibility related to the impact with the victim in the statement he read in court, the presentence report author notes that the offender tends to minimize his responsibility, on both the impaired driving causing bodily harm and the leaving the scene offences.

[36]        Indeed, the author of the report wrote : « L’accusé reconnait sa responsabilité dans le passage à l’acte, mais son discours est parfois teinté de rationalisations et justifications. D’ailleurs il évoque toujours une certaine difficulté à concevoir que sa conduite ait été affectée par son intoxication. Nous trouvons aussi questionnable le fait qu’il offre des propos calculés nous laissant croire qu’il veut semer le doute quant à quelques faits liés à l’accident, probablement pour protéger son image, et servant ainsi à minimiser sa responsabilisation. Par ailleurs, sa décision de fuir les lieux de l’accident serait justifiée, selon lui, par le fait qu’il ignorait ce qu’il avait frappé, tandis que nous sommes d’avis qu’elle était principalement fondée sur la panique et l’évitement des conséquences associées à ses gestes.»

[37]        Given the evidence, it is unlikely, if not impossible, that the offender didn’t know he had been struck by another vehicle. Suffice to recall that the offender was not driving on a rural road where animals, for example, could jump off the road, or he was not driving in a residential area where objects, for example small bicycles or garbage cans may be on the side of the road. He was driving on a highway where the chances to be hit by other things than a vehicle are minimal. Hence, I make mine the conclusion of the report’s author.

[38]        The Defence pointed out that the injuries suffered by the victim are minors and therefore, it is a “critical mitigating factor” to cite his words. Recently in Dubourg, the Quebec Court of Appeal wrote the following : « L’importance des blessures est hautement pertinente à la pondération de la gravité de l’infraction et le degré de responsabilité du délinquant. C’est l’essence de la proportionnalité[16]. »

[39]        On the other end, if minor injuries might contribute to lowering the sentence on the impaired driving causing bodily harm offence, an injury increases the overall gravity of the offence of leaving the scene since section 252 of the Criminal code imposes an additional obligation on the driver to offer assistance to any injured person[17].

[40]        Also submitted by the Defence is the fact that, according to him, the offender cooperated with the police in the course of the interception that there was no concealment in this case and therefore, it suggests the he respects law and justice.

[41]        Here’s what the Alberta Court of Appeal wrote on concealment at paragraphs 65 and 67 in Gejdos:

« [65] The sentencing judge noted […] that other than removing himself from the location, the respondent “did not attempt to conceal the accident and his role in it”. The respondent pled guilty to leaving the scene “with intent to escape civil or criminal liability”. Removing himself from the location was the fundamental actus reus of the offence. Finding that he did not attempt to “conceal his role” in the accident is inconsistent with the conviction for attempting to “escape liability”. It is an error in principle to sentence an offender based on an inference of fact or a supposed mitigating factor that is inconsistent with the conviction. »

« [67] In any event, the absence of active concealment is not a mitigating circumstance. Taking active steps to conceal involvement (apart from merely leaving the scene) may well be an aggravating factor, but their absence is not mitigating: […] »

[42]        I totally agree with this conclusion.

[43]        The absence of a criminal record is obviously a mitigating factor. In the present case, it is counterbalanced though by the driving record of the offender. Many convictions and suspensions are part of it, notably an excessive speeding conviction and 14 demerit points, in May 2015 for having driven, two weeks before the event of the present case, at a speed of 132 km/h in a 70 km/h zone. It shows, to use the words written in Lacasse, that the offender repeatedly and frequently drove irresponsibly[18].

CONCLUSION

[44]        In this case, even if the mitigating factors outnumber the aggravating ones, they do not outweigh them to the extent of imposing a sentence that is outside the range proposed in Lemaire.

[45]        Moreover, the situation of the offender is not exceptional to the point of justifying a sentence outside this range. Although the offender is young, his situation is positive and the consequences of his offences are, fortunately, on a small human level scale, the offences were committed under the influence of alcohol in a very dangerous context. It is the dangerous manoeuvers described earlier that increase the responsibility of the offender.

[46]        In light of the moral blameworthiness of the offender, the gravity of the offences, the aggravating and mitigating factors as well as the need to denounce and deter, I conclude that a fit sentence combines a custodial period, a driving prohibition and a probationary period including community service.

[47]        Therefore, I sentence Jacob Guillon to 90 days of imprisonment on each of counts 1 and 3.

[48]        In addition, the offender must comply with the following conditions of a probation order for a period of two years:

·           Keep the peace and be of good behaviour;

·           Advise the Court or the probation officer of any change of address, name, employment or occupation;

·           Complete 200 hours of community service during the first 18 months of the probation order.

[49]        I order that Jacob Guillon be prohibited from operating a motor vehicle on any street, road, highway or public place for a period of 24 months.

[50]        Finally, in general, sentences for distinct offences should be served consecutively[19]. In addition, the circumstances of the offences and the need to deter and denounce favor a continuous jail term. Nevertheless, given the personal situation of the offender, the length of the prohibition order and the community service imposed, the principles of totality and proportionality require an adjustment in order to render an appropriate sentence[20]. Therefore, imprisonment will be served concurrently on counts 1 and 3, and intermittently from Saturday morning 9 am to Sunday evening 5 pm, beginning Saturday January 12, 2019.