QBC 40 of A.D. 1997 IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA PROVINCE OF SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and CHAD J. D. DELAITTRE Bryce Pashovitz for Her Majesty The Queen Aaron Fox, Q.C. for Chad J. D. Delaittre JUDGMENT ALLBRIGHT J. MARCH 10, 1998 The accused, Chad J. D. Delaittre, has pleadguilty to a charge: THAT HE, the said Chad J. D. Delaittre,on or about the 21st day of July, A.D. 1996 at or nearRegina, in the Province of Saskatchewan did operate amotor vehicle on the streets of the City of Regina towit: 200 North Albert Street, in a manner dangerous tothe public, and did hereby cause the death of VernonKeith Ward contrary to Section 249(4) of the CriminalCode of Canada. In addressing the matter of an appropriate sentence, the Crown suggests that range of sentences for such an offence runs from low of fifteen months to high of four and one-half years. In this instance, the Crown argues that incarceration should result, somewhere within that range and that under the circumstances of this offence conditional sentence would not be appropriate. The defence suggests range of sentences which is broad, and lower than that suggested by the Crown. Specifically the defence argues that a sentence in the lowerend of the range is one which should be imposed and that sucha sentence should be a conditional sentence to be served inthe community, rather than in a corrections facility. CIRCUMSTANCES OF THE OFFENCE This accident occurred at approximately 10:30 p.m. on Sunday, July 21, 1996 at the intersection of Albert Street and 3rd Avenue North in the City of Regina. At that intersection, there are two through driving lanes proceeding in northerly direction, with left turn lane and right curb lane. The intersection is not controlled by traffic lights. The accused was driving black 1986 Volkswagen model G.T.I. and had been travelling along Albert Street from the south side of Regina in northerly direction. He was accompanied by friend, Trevor Leibel. Alcohol does not appear to have been in any way involved in the accident, and breathalyzer reading taken approximately one and one-half hours after the accident revealed no alcohol in the blood of the accused. Conflicting accounts of the driving leading up to the accident and the accident itself have been provided by various witnesses. The following is summary of the observations of those witnesses. Alan Cassidy Alan Cassidy prior to the accident was travelling north bound on Albert Street having just passed 1st Avenue North. Two vehicles passed him at high rate of speed, one being light colored Audi which passed his vehicle on the left, the other being black Volkswagen, that being driven by the accused which passed on his right. He noticed number of vehicles stopped in front of him at the intersection of Albert Street and 3rd Avenue North and at about that same time, he observed pedestrian crossing at the intersection from the west side of Albert Street towards the east side of Albert Street. He noted, after the Volkswagen had passed him, the brake lights on the vehicle activate and he saw the vehicle strike the deceased, Vernon Keith Ward in the intersection. Trevor Ellis Trevor Ellis was driving south on Albert Street intending to turn on to 3rd Avenue North and proceed in an easterly direction. He stopped to await oncoming traffic and noted vehicle go by quickly to his left in what would be the left hand lane for traffic proceeding north. Vehicles were stopped in the driving lanes and he then observed the Volkswagen approach those vehicles from behind, and turn into the right hand curb lane. He heard squealing of tires and the sound of "bang" and saw something go flying. Following the accident he observed that Mr. Delaittre was upset and went over to the victim, Mr. Ward, indicating "I'm sorry, I'm sorry". He was uncertain as to what happened to the light colored Audi. Paul Benson Paul Benson was passenger in the Audi being driven by Dallas Black. He and Mr. Black, shortly after 10:00 p.m., had started driving up Albert Street from the south area of Regina. Early on, he noted the black Volkswagen driven by Mr. Delaittre also travelling north on Albert Street. He observed that the Volkswagen was travelling in and out of traffic and noted that for some period of time he was driving along with an Accura automobile. He estimated the Volkswagen to be travelling 70 to 80 kilometers per hour. He described the Volkswagen as pulling around vehicles whenever possible and "jousting with the Accura". At the intersection of Albert Street and 5th Avenue, the Audi driven by Mr. Black, and Mr. Delaittre's vehicle stopped at the traffic light. Mr. Black was in the right lane and Mr. Delaittre was in the left lane. When the light turned green both vehicles accelerated and the Audi moved into the left lane while the Volkswagen shifted into the right driving lane. They stopped for another light at Albert Street and 1st Avenue again with the Audi occupying the left driving lane and the Volkswagen in the right driving lane. Mr. Benson indicated the accused gestured as if he wanted to race and both vehicles accelerated hard when the light turned green. The Audi left the intersection first followed by the Volkswagen and Mr. Benson estimated that both vehicles reached speeds of 70 kilometers per hour. The Volkswagen, however ended up approximately one-half block behind the Audi. As the vehicles approached the intersection where the accident occurred, Mr. Benson saw two vehicles in his lane, the left driving lane and three vehicles in the right driving lane, that being the lane in which the Volkswagen was driving. These vehicles were either stopped or slowing to stop at the intersection. He then observed pedestrian crossing the intersection and immediately observed the Volkswagen on his right, drive into the curb lane, and lock its brakes. That was the end of the observations of Mr. Benson. Mr. Benson indicates that he and Mr. Black stopped, however that does not appear to be consistent with the evidence of Mr. Ellis, and indeed it would appear that the Audi left the scene of the accident immediately. Dallas Black Dallas Black confirmed Mr. Benson's description of the events leading up to the accident, although he recalls first seeing the black Volkswagen in the area of Albert Street and College. At the intersection of Albert Street and 1st Avenue, approximately three blocks from the accident, both vehicles were stopped, Mr. Black in the left driving lane and the black Volkswagen driven by Mr. Delaittre in the right driving lane. Mr. Black accelerated to approximately 70 kilometers per hour, then looked up, and continued to accelerate. He noticed vehicles at the intersection at Albert Street and 3rd Avenue and observed the Volkswagen turn into the right hand curb lane, lock its brakes and slide into the intersection. Mr. Black did not remain at the scene of the accident and only later was his identity made known to the authorities. Trevor Leibel Trevor Leibel was passenger in Mr. Delaittre's vehicle and indicates that Mr. Delaittre sped up to keep up with the Audi and that at the time of the accident, the accused had run out of room and had to go to the right lane to avoid hitting the cars which were in front of them in the driving lanes. The accused saw the pedestrian at that time and hit the brakes, however the vehicle could not stop and Mr. Ward was struck. Vernon Keith Ward, was 64 years of age at the time of the accident and lived in the vicinity. He was dressed in dark clothing that night and crossed in the southerly unmarked pedestrian crosswalk proceeding from the west to the east. Mr. Ward had almost completely crossed the intersection walking in front of the vehicles which had stopped to allow his passage. Upon impact he was thrown onto the hood of the vehicle, then the roof, and came to rest just in front of the vehicle in the intersection. passer-by called 911. The accused, as well had asked someone to call 911. Mr. Ward passed away short time thereafter as result of the injuries sustained in the accident. An investigator who attended at the scene estimated the speed of the Volkswagen at approximately 85 kilometers per hour prior to brake lock-up and further estimated the speed to be 56 kilometers per hour at impact. An expert, secured by the defence, indicated from his reconstruction that the accused could have been going approximately 65 kilometers per hour just prior to the brake lock-up. The Crown does not dispute this estimate. CIRCUMSTANCES OF THE ACCUSED The accused, Mr. Delaittre, was 19 years of age at the time of the accident and has now turned 21. He has minor youth record, that being charge of mischief proceeded with in Youth Court in September of 1993. In addition, Mr. Delaittre has six speeding convictions on his highway traffic record, two of them having been entered after the accident, in July and November of 1997. The accused lives with his parents in Pilot Butte and has worked steadily since the accident. He hopes in the future to attend University and pursue career in engineering. His work as of recent times has been involved in the oilfield. letter of support was offered by Mr. Delaittre's employer indicating Mr. Delaittre to be an "honest, reliable and hard-working individual with desire to better himself at all times." The letter is supportive of Mr. Delaittre and indicates that the accused has work with the company. further letter was provided by friend of Mr. Delaittre, retired Sgt. Ron Coleman of the Regina City Police. He has known Mr. Delaittre for fifteen years and has observed him as teenager and young adult. He speaks highly of Mr. Delaittre and has observed him to be polite and respectful towards others. He has undertaken job responsibilities that Mr. Coleman does not believe other young people would or could be in position to handle. Mr. Delaittre's parents were present in Court and have continued their support of him. While the accused had not prior to the entry of the guilty plea, directly expressed remorse to the family members of Mr. Ward, in Court he did express such remorse and from all accounts at the accident scene, expressed immediate remorse for his actions. THE LAW In determining what is fit and appropriate sentence in this matter, am required to consider and give effect to the principles set forth in the following statutory provisions contained in the Criminal Code of Canada: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of 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 sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) 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 of aboriginal 742.1 Where person is convicted of an offence, except an offence that is punishable by minimum term of imprisonment, and the court: (a) imposes sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of conditional sentence order made under section 742.3. Gerein J. in R. v. Melnyk (unreported July 4, 1997), commencing at p. analyzes the procedure which sentencing judge is to adopt in giving effect to these statutory sentencing provisions. He observes: From my reading of the legislation and the judicial commentary, conclude that court should proceed in this way. Initially there must be determination as to what is fit sentence taking into consideration what is set forth in the legislation, including ss. 718.2(d) and (e) which mandate somewhat new emphasis in the process. At the same time reference must be had to the jurisprudence contained in earlier cases, particularly with view to ensuring degree of parity as amongst like situations. If it happens that the appropriate sentence is one of more than two years imprisonment, then that sentence is imposed and that is the end of the matter. However, if the appropriate sentence is one of imprisonment for less than two years and such is not minimum sentence, then the court must go on to decide whether the sentence should be served in the community. In deciding this question, the court must first make determination about whether the accused presents danger to the community. If not, the court must then decide whether serving the sentence in the community will be consistent with ss. 718 to 718.2. To this extent consideration must be given to what is set forth in these sections and on that basis decision made as to whether the sentence will be served in the community. find support for the described process in R. v. Pierce (1997), 32 O.R. (3d) 321 (Ont. C.A.); R. v. Wismayer (unreported February 28, 1997, Ont. C.A.); R. v. Pederson (unreported May 9, 1997, Sask. C.A.); R. v. D.W.C. (unreported May 13, 1997, Sask. C.A.); R. v. Faubert (unreported May 14, 1997, Sask. C.A.); and R. v. Horvath (unreported June 16, 1997, Sask. C.A.). In this jurisdiction our Courts have canvassed appropriate sentences for the spectrum of driving offenses resulting in death or bodily harm. This spectrum includes the offences of criminal negligence in the operation of motor vehicle causing death or bodily harm, impaired driving causing death or bodily harm and dangerous driving causing death or bodily harm. In this instance, the offence is that of dangerous driving causing death. The Saskatchewan Court of Appeal to this time has not considered the question of whether it is appropriate that sentence of imprisonment be served in the community where the offence before the court is that of dangerous driving causing death. Prior to the implementation of the conditional sentence provisions contained in s. 742.1, the Saskatchewan Court of Appeal has imposed sentences of incarceration of different lengths in relation to various driving offences resulting in death. summary of some of these cases is as follows: In R. v. Hagen (unreported January 9, 1987) where the accused, with no prior record, was driving approximately 50 miles per hour on city street and while attempting to get around line of traffic, stopped for traffic light and struck and killed boy on bicycle. He then fled the scene of the crime. sentence of two years less day was upheld by the Court of Appeal. In R. v. Reynolds (unreported September 9, 1988) the sentence was 15 months where the accused had been drinking alcohol and fell asleep at the wheel. The vehicle rolled over causing the death of his passenger. In R. v. Awasis (1990), 1989 CanLII 4761 (SK CA), 78 Sask. R. 156 the accused pleaded guilty to two counts of dangerous driving causing death. The accused had been involved in night of drinking and partying without sleep. He had only one eye and drove in an erratic manner on the wrong side of the road killing two people. He had series of prior convictions including three impaired driving offenses. The Court of Appeal sentenced him to term of three years. In R. v. Osiowy (unreported October 8, 1993) the accused attempted to pass vehicles on the right hand shoulder of main highway at peak traffic conditions at high speeds. He struck and killed the victim who was riding his bicycle on the right shoulder. The accused left the scene, abandoned his vehicle and attempted to avoid detection by removing his license plates. He was driving while his license was suspended and had been consuming alcohol. He had substantial criminal record. He was sentenced to four and one-half years. R. v. Arcand unreported September 14, 1995) is case where the accused had consumed alcohol and entered ditch on the opposite side of the highway where he continued to drive until he ran into deep gully. One passenger was killed and all of the others injured. The accused was aware he was driving vehicle which was mechanically unsound and took the risk. He was sentenced to two years less day. It is significant to note that in almost all of these instances, the accused was consuming alcohol and that consumption of alcohol appeared to be either the major cause of the fatality or contributing factor. thorough canvass of these decisions and other sentencing precedents involving fatalities resulting from driving offenses is set forth in R. v. McKay unreported June 27, 1997). In v. McKay, Scheibel J., detailed series of relevant decisions in canvassing the question of what an appropriate sentence would be for Mr. McKay following his conviction for dangerous driving causing death. Mr. McKay was 20 years old at the time of the accident, and had committed five vehicle offences prior to the accident, however, he did not have prior criminal record. Scheibel J. described his driving; "although criminal, was not extremely erratic or bizarre. He was not driving at an excessively high speed, had not consumed any alcohol or drugs and he did not intend any harm. He stopped at the scene and attempted to render assistance. He is remorseful for what occurred." Following detailed analysis of the existing jurisprudence, and the sentencing principles set forth in ss. 718, 718.1, 718.2 and 742.1, Scheibel J. concluded that an appropriate sentence was term of imprisonment for eighteen months, to be served in the community pursuant to s. 742.1. The first six months of the sentence were subject to intensive conditions, to be served on the electronic monitoring program, and additionally the accused was required to perform 240 hours of community service work and prohibited from operating motor vehicle for three years. In R. v. Melnyk (supra) Gerein J. following detailed review of sentencing principles, sentenced the accused to term of 15 months to be served in the community, the first six months thereof to be served on the electronic monitoring program with intensive conditions. In addition the accused was placed on probation for term of 18 months, required to perform 200 hours of community service and prohibited from operating motor vehicle for three years. The accused was 21 years of age at the time of the offence and had consumed moderate amount of alcohol. He and two passengers were involved in single vehicle accident when he failed to navigate portion of the changing roadway, struck sign and entered the ditch where the vehicle flipped over. One of the passengers died. There was some evidence of speed over the posted speed limit, however not to excess. The Crown did not appeal from either of the sentences in R. v. McKay or R. v. Melnyk. The Saskatchewan Court of Appeal has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Towards that end, they haverejected alternatives to incarceration as not adequatelyreflecting the gravity of the offence and as not serving todeter either the offender or the general public fromcommitting like offences. One such case is R. v. Schneider (1994), 1994 CanLII 4670 (SK CA), 123 Sask. R. 162 (C.A.), decision prior to the conditional sentence amendment to the Criminal Code. In that case, the Court of Appeal upheld the 15 month sentence of imprisonment imposed upon an accused convicted of impaired driving causing death. The accused argued on appeal that she should have had the benefit of electronic monitoring as part of the sentence, as opposed to incarceration due to her lack of past criminal record and the low likelihood of re-offending. The Court, however held that where death had occurred, electronic monitoring would not maintain public confidence in the administration of justice. Recently, in R. v. Keller, the Court of Appeal dismissed an appeal by the accused from refusal by the learned trial judge to sentence the accused pursuant to s. 742.1 of the Criminal Code allowing her to serve the sentence in the community. The learned trial judge had sentenced the accused to term of imprisonment of two years less day. The accused had consumed significant quantity of alcohol and was in no shape to drive vehicle. With passengers in her vehicle, she accelerated constantly swerving in and out of traffic, and ran traffic light as she sped down Broad Street. She was travelling at 100 to 120 kilometers per hour, lost control of her vehicle, mounted concrete barrier, and skidded along the barrier. The deceased was thrown from the vehicle during this process. She had blood alcohol level of .180. At p. of the unreported decision, the court observes: In sentencing for crimes of the nature of those committed in this case, the public interest weighs heavily in the balance, point this and other courts have often been at pains to make, stressing the need to denounce strongly conduct of this character, to try diligently to deter it, and to strive continually to overcome the attitudes that spawn it. And so this court has said many times, having regard for these objectives in particular, that crimes of this nature will be met with firm sentencing hand in the interests of the safety of the public. In addition to R. v. Schneider, see, for example, R. v. Powell (1990), 1989 CanLII 5069 (SK CA), 81 Sask. R. 301; R. v. Pearman (1991), 1990 CanLII 7638 (SK CA), 89 Sask. R. 156; R. v. Paul (1991), Sask. R. 199; and R. v. Kahpeepatow (1992), 1991 CanLII 7956 (SK CA), 97 Sask. R. 90. The sentence appeal was dismissed. ANALYSIS As result of the actions of the accused, Vernon Keith Ward is deceased. The offence must be considered consequently as being serious. Indeed, the sentence imposed must reflect the seriousness and the gravity of the offence. Family members of the deceased have provided victim impact statements which express their personal sorrow. They keenly feel the loss of loved one and are troubled by the senseless death of Mr. Ward. The events of July 21, 1996 have been tragic for everyone concerned. In considering sentence, must be mindful of all of the circumstances. It is germane to consider the driving of the accused and do not believe it can be fairly said that he drove in bizarre fashion over protracted period of time. His actions were clearly inappropriate and imprudent and his failure to drive in normal fashion resulted in tragic consequences. For whatever reason, he failed to monitor and perceive the situation in front of him and drove at speed in excess of that permitted by law. He along with the occupants of the Audi had chosen to accelerate from stop lights and change lanes somewhat randomly. Neither vehicle was driven prudently. However, alcohol was not factor in this accident. That in my view is significant feature in this factual backdrop. Had the accused been paying attention to his surroundings the accident would not have occurred. It ishis lack of attention together with excessive speed thatresulted in the accident. Immediately following the accident, the accusedstopped to render what assistance he could to Mr. Ward andthis should be contrasted with the driver of the Audi who leftthe scene of the accident immediately. I am concerned in this matter with the principles ofgeneral deterrence, denunciation, protection of the public,and maintenance of public confidence in the administration ofjustice. I must also be concerned with the principles ofspecific deterrence and rehabilitation of the accused. A troubling factor in this instance arises from thesubsequent convictions of the accused for two speedingoffences. It is difficult to understand how the trauma of the accident could not have altered the accused's driving habits to prevent speeding infractions. These convictions must beviewed as an aggravating circumstance requiring some emphasison specific deterrence. am of the view that the range of sentencing sought by the Crown is higher than called for under these particular circumstances. am of the further view that conditional sentence would not be appropriate in this matter. It is important that members of the public be constantly aware that motor vehicles have the potential to be inherently dangerous if not operated with care and where misuse of motor vehicle occurs the sentences must serve as meaningful reminder that consequences will result. Upon considering all of the objectives and principles of sentencing, along with the particular circumstances of this offence, including its gravity, and the degree of responsibility of the accused, find that there must be some period of imprisonment. am of the view that an appropriate sentence is one which may be served intermittently. believe that this will effectively address the principles of general deterrence, specific deterrence, denunciation, and rehabilitation. Therefore, in respect to the offence of dangerousdriving causing death, I sentence the accused to be imprisonedfor 90 days in the Provincial Correctional Centre at Regina,Saskatchewan, said sentence to be served intermittently. While doing so, the accused shall comply with the followingconditions of probation: (1) He shall present himself to the keeper of the said Correctional Centre not later than 7:30 p.m. on Friday, March 20, 1998, and each succeeding Friday until the sentence is served and remain for release on the Monday next following each Friday at time not later than 7:00 a.m. (2) He shall keep the peace and be of good behavior. (3) He shall appear before the court whenever required to do so. (4) He shall refrain absolutely from the consumption ofalcohol and non-prescription drugs for 24 hoursprior to his attendance on each Friday at theCorrectional Centre. In addition, I direct that the accused enter into aprobation order which shall commence after he has served hissentence of imprisonment for 90 days and which shall be for aterm of 18 months. The conditions of the order shall be thefollowing:(1) keep the peace and be of good behavior;(2) report to this court if and when required to do so;(3) report to the Chief Probation Officer for theProvince of Saskatchewan, or his designate, withineight weeks of this date and thereafter as requiredby him or his designate;(4) that you perform 200 hours of community servicework at the direction and to the satisfaction of theChief Probation Office for the Province ofSaskatchewanor his designate;(5) that you shall register in a program of eduction ofdefensive driving under the direction of and to thesatisfaction of the Chief Probation Officer or hisdesignate. In addition you are ordered to pay a surcharge of$250.00 and in default you will be incarcerated for a periodof ten days. The time for payment is extended until May 31, 1998. Pursuant to s. 259(2)(b) of the Criminal Code ofCanada, you are prohibited from operating a motor vehicle onany street, road, highway or other public place for a periodof three years from this date. G.N. Allbright, Q.B.J.
The accused who had plead guilty to a charge of dangerous driving causing death sought a conditional sentence to be served in the community. Various witnesses gave conflicting accounts of the driving leading up to the accident and the accident itself. Two vehicles driving at a high rate of speed, one in the left lane and one in the right hand curb lane passed vehicles stopped at a cross walk, the later striking and killing a pedestrian. The vehicles had been observed pulling around other vehicles whenever possible and 'jousting' with each other. HELD: A sentence of 90 days to be served intermittently in a provincial correctional centre was imposed. Conditions of probation included restraint from the consumption of alcohol and non-prescription drugs for 24 hours prior to attendance at the centre. An 18 month probation order required him to perform 200 hours of community service and to enroll in a defensive driving course. He was prohibited from operating a motor vehicle for three years and was to pay a surcharge of $250.  1)The Saskatchewan Court of Appeal had not to date considered the question of whether it was appropriate that a sentence of imprisonment be served in the community where the offence is that of dangerous driving causing death. It has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Alternatives to incarceration were rejected as not adequately reflecting the gravity of the offence and as not serving to deter either the offender or the general public from committing like offences. 2)The driver's lack of attention together with excessive speed caused the accident. Alcohol was not involved. He stopped to render assistance whereas the driver of the second car which had been racing with him left the scene of the accident immediately. Principles of general and specific deterrence, rehabilitation, denunciation, protection of the public and maintenance of public confidence in the administration of justice were to be considered. 3)Specific deterence had to be emphasized in view of the driver's subsequent convictions for two speeding offences. The accused had six speeding convictions. He had a minor youth record involving mischief.