R. v. Larocque, 2017 NWTSC 37           S-1-CR-2016-000040

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

             IN THE MATTER OF:

                               HER MAJESTY THE QUEEN

                                       - V -

                                   JASON LAROCQUE

             _________________________________________________________

             Transcript of the Reasons for Sentence by The Honourable

             Justice S. H. Smallwood, sitting in Yellowknife, in the

             Northwest Territories, on the 26th day of May, 2017.

             _________________________________________________________

             APPEARANCES:

             Ms. M. Zimmer:              Counsel for the Crown

             Mr. C. Davison:             Counsel for the Defence

                    ----------------------------------------

                 Charge under s. 259(4) Criminal Code of Canada

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         1      THE COURT:             Jason Larocque has entered

         2          a guilty plea to a charge of driving while

         3          disqualified contrary to Section 259(4) of

         4          the Criminal Code.

         5               The facts, which were provided in an Agreed

         6          Statement of Facts, are that Mr. Larocque had

         7          been sentenced for two driving while disqualified

         8          offences.  He was, at the time of this offence,

         9          subject to two different driving prohibitions.

        10          The first was from October 22nd, 2012, in the

        11          Territorial Court, where he was ordered pursuant

        12          to Section 259 of the Criminal Code that he be

        13          prohibited from operating a motor vehicle on any

        14          street, road, highway, or other public place for

        15          a period of five years consecutive to any other

        16          driving prohibition.  The order of prohibition

        17          was attached to the Agreed Statement of Facts.

        18               On November 7th, 2015, at approximately

        19          2:30 in the afternoon, the RCMP received a

        20          report of a possible impaired driver in

        21          Hay River, Northwest Territories.  The RCMP

        22          responded and began patrols to attempt to

        23          locate the vehicle.  They located the vehicle

        24          matching the description driving in Hay River,

        25          and then the vehicle parked beside The Source

        26          in Hay River.

        27               Constable Newcombe of the RCMP turned on

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         1          his emergency lights and parked behind the black

         2          Ford Escape, which apparently was the vehicle in

         3          question.  While exiting the vehicle the members

         4          of the RCMP observed through the window that the

         5          two individuals in the vehicle were switching

         6          seats.  The officer approached the passenger

         7          side, which was now occupied by Jason Larocque.

         8          The officer recognized him, and upon opening the

         9          door noticed that there was an odor of marijuana,

        10          along with an open bottle of vodka between the

        11          center console and the passenger seat.

        12               There was another male in the vehicle.

        13          Constable Newcombe asked Mr. Larocque why they

        14          had switched drivers, to which Mr. Larocque had

        15          responded that he was not driving.  Constable

        16          Newcombe observed that Mr. Larocque had a dazed,

        17          blank stare to his eyes, and at that time he

        18          was arrested for possession of a controlled

        19          substance, along with being detained for

        20          impaired driving.  Ultimately he was not

        21          charged with impaired driving.

        22               Subsequent checks performed by Constable

        23          Newcombe indicated that Mr. Larocque was

        24          prohibited from driving, and so he was arrested

        25          for driving while prohibited, and the vehicle

        26          that Mr. Larocque had been driving was registered

        27          to his common-law spouse.  Mr. Larocque was

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         1          subsequently released on a promise to appear

         2          and also served with some SOTI tickets, to

         3          which he pled guilty, and he also pled guilty

         4          with respect to a possession of marijuana charge

         5          arising from this incident.  Mr. Larocque has

         6          been detained in custody on this and other

         7          matters since November 13th, 2016.

         8               The Crown has filed the Notice of Intention

         9          to Seek Greater Punishment, which means, because

        10          it is more than Mr. Larocque's third conviction

        11          for driving while disqualified, that he is

        12          subject to the following minimum penalties:

        13          120 days imprisonment and a three-year driving

        14          prohibition.

        15               The criminal record of Mr. Larocque was

        16          also filed, and it shows that over a period

        17          from 1994 to 2017 he has 35 convictions, starting

        18          in Youth Court and continuing up to earlier this

        19          year.  There are four convictions for impaired

        20          driving or over 80 on his criminal record, and

        21          there are also nine convictions for driving

        22          while disqualified, starting from 2001 to 2014.

        23               In 2001 Mr. Larocque was first convicted

        24          of driving while disqualified and at that time

        25          received a sentence of 60 days imprisonment.

        26          He was subsequently convicted of driving while

        27          disqualified in 2002 and received four months

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         1          imprisonment.  In 2004 again receiving four

         2          months imprisonment.  In 2005 receiving five

         3          months imprisonment.  In 2007 receiving a

         4          sentence of one day, but being given credit

         5          for three months of pre-trial custody.

         6          In 2009 receiving five months imprisonment.

         7          In 2012 receiving six months imprisonment.

         8          Again in 2012 six months imprisonment, and

         9          in 2014 receiving six months imprisonment.

        10               He is currently prohibited from driving.

        11          There are two driving prohibitions from February

        12          27th, 2009.  At that time he was convicted and

        13          was sentenced to a ten-year driving prohibition.

        14          He was convicted for driving while disqualified.

        15          Also, in February of 2014 he was also convicted

        16          again for driving while disqualified and received

        17          a nine-year driving prohibition consecutive

        18          to the driving prohibitions that he was on.

        19          As well, there was a driving prohibition from

        20          October 22nd, 2012, which was five years, which

        21          was consecutive to any other outstanding driving

        22          prohibition order.  So Mr. Larocque is currently

        23          on three driving prohibitions.  He is prohibited

        24          from driving until February of 2028.

        25               Mr. Larocque is an aboriginal offender.

        26          I have not heard much specifically about

        27          his background or any specific factors which

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         1          might have impacted upon him.  I heard from

         2          Mr. Larocque earlier this week that his

         3          parents were residential school survivors,

         4          and he was raised in an environment where

         5          there was drinking, and that did have an

         6          impact upon him.  I have heard that he has

         7          a grade 7 education, that he has worked, and

         8          that he has done some traditional activities.

         9          He has spent some time in the bush and has

        10          worked as a guide at a lodge in the Talston

        11          River.

        12               The fundamental purpose of sentencing

        13          according to Section 718 of the Criminal Code

        14          is to protect society and to contribute to

        15          respect for the law and the maintenance of

        16          a just, peaceful and safe society by imposing

        17          just sanctions.  The objectives of the sanctions

        18          include the denunciation of unlawful conduct,

        19          deterring the offender and others from committing

        20          offences, separating offenders from society

        21          where necessary, assisting in the rehabilitation

        22          of offenders, providing reparations for harm

        23          done to victims, and to promote a sense of

        24          responsibility in offenders.

        25               I have reviewed the cases that have been

        26          provided by the Crown, and there is a wide range

        27          of sentences that are available for this offence.

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         1          The maximum penalty is five years where the Crown

         2          proceeds by indictment.  The minimum penalty

         3          depends on whether the Crown has filed the Notice

         4          of Intention to Seek Greater Punishment and the

         5          number of prior convictions that the offender

         6          might have.

         7               Mr. Larocque has a lengthy history of

         8          driving offences.  He was initially sentenced

         9          for impaired driving offences, but over the

        10          years has accumulated multiple driving while

        11          disqualified convictions, as well as some more

        12          impaired driving offences.

        13               His criminal record is the most aggravating

        14          factor in this case.  It reflects a flagrant

        15          disregard for the driving prohibitions that

        16          he has been placed on.  Nothing has deterred

        17          Mr. Larocque from driving when he feels the

        18          need to.

        19               Mr. Larocque did enter a guilty plea to

        20          this offence, so that is deserving of some

        21          credit.  He entered it the week before the

        22          trial, so it cannot be called an early guilty

        23          plea, but it did save the Court time and prevent

        24          witnesses from having to travel and testify, and

        25          it also provided certainty of outcome.  So it is

        26          worthy of some credit.

        27               Mr. Larocque has also said that he has been

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         1          attending AA while he is in remand, and that he

         2          is beginning to recognize that he has a problem

         3          that he needs to address, and if that is the case

         4          that is to Mr. Larocque's credit.  His failure to

         5          comply with driving prohibitions and continuing

         6          to drive while impaired are only going to land

         7          him in jail for longer and longer sentences if

         8          he continues on this path.  As a 35-year-old

         9          man with children and a long-term girlfriend,

        10          I am sure that is not something that you want,

        11          Mr. Larocque.

        12               As it is today, before I impose sentence,

        13          you are prohibited from driving until 2028, and

        14          that is a reality that you need to face.  You are

        15          in this position because of your actions, and no

        16          one else is responsible, and it is time that you

        17          face that reality and start complying with the

        18          driving prohibitions.  The last three convictions

        19          for driving while disqualified have earned you

        20          a sentence of six months imprisonment, and that

        21          has done nothing to deter you.  You have received

        22          driving prohibitions of ten years and nine years,

        23          and that has not deterred you.

        24               Given your blatant disregard for the driving

        25          prohibitions that were put in place, prohibitions

        26          that were put in place to protect the public,

        27          your actions show contempt for those principles

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         1          and detract from the confidence that the public

         2          should have in the judicial system.  People want

         3          to know that the justice system is dealing with

         4          impaired drivers in a strict way and that the

         5          punishments and prohibitions that are put in

         6          place are being complied with and not flouted.

         7          People should be able to feel that the streets

         8          are safe to drive on, to walk on, that they can

         9          do so without fearing that someone who should

        10          not be driving is on the streets risking their

        11          safety and that of their family members.

        12               At the outset of sentencing my view was

        13          that the Crown's position was very lenient.

        14          My initial view was that nine months imprisonment

        15          was too low and that a life-time driving

        16          prohibition would be appropriate.  Driving

        17          is a privilege, not a right, and you have

        18          done nothing at this point to earn that right.

        19               But I have decided to exercise restraint.

        20          I have taken into account what you have said

        21          and what your lawyer has said on your behalf.

        22          You could easily be looking at a sentence much

        23          higher than what the Crown has suggested, and

        24          if you are convicted of driving while prohibited

        25          again you can expect to receive a much harsher

        26          sentence.  I have also taken into account the

        27          driving prohibitions that you are currently

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         1          on, and that you are prohibited from driving

         2          for another 11 years.

         3               You have been in custody since November

         4          13th, 2016, and there is also a period from

         5          July 26th to 29th, 2016, where you were in

         6          custody.  So those equate to 177 days, and

         7          at one-and-a-half-to-one credit equals 266

         8          days of remand credit, and that equates to

         9          almost nine months in custody, and I will

        10          give you credit for those days.  Please

        11          stand, Mr. Larocque.

        12               For the offence of driving while

        13          disqualified I sentence you to a period

        14          of nine months in custody.  I take into

        15          account your remand time of 177 days and

        16          give you credit at one-and-a-half-to-one

        17          for a total of 266 days credit for the

        18          remand time.  I will round that credit

        19          up to nine months, meaning that you will

        20          have served your sentence.

        21               There will also be a driving prohibition,

        22          and it will be consecutive to the driving

        23          prohibitions that you are currently on,

        24          and it will be for nine years.  You may

        25          sit down.

        26               Counsel, if there is nothing else.

        27      MR. DAVISON:           Two other matters.

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         1      THE COURT:             Okay.

         2      MR. DAVISON:           One I raise because if

         3          I don't I think it will end up being called

         4          back, and that is the victim surcharge.

         5      THE COURT:             Do you have any submissions

         6          on that, Ms. Zimmer?

         7      MS. ZIMMER:            Your Honour, it would apply

         8          in this case.

         9      THE COURT:             So there will be the victim

        10          of crime surcharge, and it will be I believe

        11          it is $200; is that correct?

        12      THE CLERK:             Yes.

        13      THE COURT:             And the time to pay will

        14          be in accordance with the statutory regulations

        15          unless you have any other submissions on that,

        16          Mr. Davison.

        17      MR. DAVISON:           No, that's fine, Your Honour.

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        20                           Certified to be a true and
                                     accurate transcript, pursuant
        21                           to Rules 723 and 724 of the
                                     Supreme Court Rules.
        22

        23
                                     _____________________________
        24                           Joel Bowker
                                     Court Reporter
        25

        26

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