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Abstract: Transcript of the Reasons for Sentence
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R. v. Basil, 2013 NWTSC 52 S-1-CR-2012-000058 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - HENRY BASIL __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 29th day of May, A.D. 2013. __________________________________________________________ APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Mr. C. Davison: Counsel for the Accused (Charges under s. 253(1)(a) x2 Criminal Code of Canada) Official Court Reporters 1 THE COURT: Henry Basil has pleaded guilty 2 to having operated a vessel while the 3 concentration of alcohol in his blood was over 4 the legally permitted limit. I must now decide 5 what sentence should be imposed for that offence. 6 The Crown and the defence have presented me 7 with a joint submission as to what the sentence 8 should be. That joint submission is that I 9 should impose a fine of $2,000 together with a 10 driving prohibition of 18 months. 11 As a rule, sentencing courts have a very 12 wide discretion in deciding what penalties should 13 be imposed for any given offence, but when a 14 joint submission is presented, the law says that 15 it should be followed unless it is clearly 16 unreasonable. Whether the joint submission 17 presented in this case is reasonable depends on 18 the facts of the offence, the circumstances of 19 the offender, and the interpretation of the 20 relevant sentencing principles that are set out 21 in the Criminal Code. 22 Dealing first with the facts of this offence 23 and the procedural history of the matter, the 24 events that led to this charge happened almost 25 three years ago. Mr. Basil had been at a camp on 26 an island in Yellowknife Bay near the community 27 of Dettah with two other people, Collin Lafferty Official Court Reporters 1 1 and Chris Bourke. On the evening of June 30th 2 and into the following day, the three of them 3 consumed alcohol. On July 1st, at 1:30 in the 4 afternoon, they left the camp in Mr. Basil's 5 boat. I heard that this is the boat he had 6 purchased recently when these events occurred. 7 The photographs that were filed as exhibits show 8 that it is an open boat with a removable cover, 9 and appears to be about 20 feet long. 10 It was a windy afternoon on July 1st, 2010, 11 and the waters were very rough. At some point, 12 and for an unknown reason, the boat suddenly 13 stopped. It quickly became swamped by waves 14 coming from the south, which would be the larger 15 opening of Great Slave Lake, and the boat sank 16 quickly thereafter. None of the three 17 individuals in the boat were wearing lifejackets. 18 Mr. Lafferty decided to try to get to shore using 19 a gas can as floatation. Mr. Bourke said that he 20 lost sight of Mr. Lafferty 15 to 20 minutes after 21 the boat sank. Mr. Lafferty did not make it to 22 shore and he drowned. 23 Mr. Basil and Bourke stayed with the sunken 24 boat which had, apparently, the bow sticking out 25 of the water still. Someone noticed from a house 26 on shore that there was something amiss on the 27 waters, realized what was happening and called Official Court Reporters 2 1 for help. Mr. Basil and the other man were 2 rescued when help arrived and they were taken to 3 hospital. Mr. Basil was treated for hypothermia. 4 I heard that to this day he continues to suffer 5 some physical consequences as a result of what 6 happened. I also heard that he continues to 7 suffer significant psychological consequences for 8 which he continues to take treatment. In fact, 9 it was to have better access to this treatment 10 that he relocated to Edmonton after these events. 11 While he was in the hospital that day, 12 though, blood samples were taken from Mr. Basil 13 and were analyzed. The amount of alcohol found 14 in his blood was determined to be 201 milligrams 15 of alcohol in 100 millilitres of blood, which is 16 almost three times the legal limit. 17 It took some time for the investigation into 18 this matter to be completed. Charges were 19 eventually laid against Mr. Basil in May 2011. 20 By then, he had already relocated to Edmonton. 21 Presumably because the authorities could not 22 locate him, a warrant was issued for his arrest. 23 I heard that once he learned of the existence of 24 that warrant, he turned himself into the custody 25 of police, was taken into custody and escorted 26 back to the Northwest Territories within a few 27 days to appear on these charges. As a result, he Official Court Reporters 3 1 spent a few days in custody before he was 2 released on bail. 3 Mr. Basil was charged with driving a vessel 4 with a concentration of alcohol in his blood that 5 was over the legal limit, with impaired driving, 6 and also under subsection (5.1), Section 253 of 7 the Criminal Code. That provision says that 8 every one who, while driving a motor vehicle or a 9 vessel with a concentration of alcohol in the 10 blood over the legal limit, causes an accident 11 resulting in the death of another person is 12 guilty of an offence. 13 Mr. Basil had his preliminary hearing on 14 those charges. I believe there may have been a 15 fourth charge on the original Information on 16 which he was discharged at the preliminary 17 hearing, but he was committed to stand trial on 18 the three others. In August 2012, the Crown 19 directed a stay of proceeding on the third count, 20 the one under Section 253(5.1) of the Criminal 21 Code. 22 At the sentencing hearing this morning, I 23 was provided with the agreed facts which were 24 reduced to writing. The Crown also filed 25 Mr. Basil's criminal record, photographs that 26 show the sunken boat as well as the boat once it 27 was taken out of the water. In addition, a Official Court Reporters 4 1 Victim Impact Statement prepared by 2 Mr. Lafferty's common-law spouse was marked as an 3 exhibit and I have reviewed it. That document 4 talks about the devastating consequences that 5 Mr. Lafferty's death had for his spouse and the 6 family emotionally, mentally, and financially. 7 The Court also heard this morning from 8 Mr. Lafferty's mother who expressed the depth of 9 the loss that she has felt as a result of this 10 and also told Mr. Basil directly that she 11 forgives him. Finally, defence counsel has filed 12 letters from the psychologist who assessed 13 Mr. Basil a month after the events -- or wrote 14 the letter a month after the events in August 15 2010 and sets out some of the symptoms that he 16 was experiencing then. There is also a letter 17 from his treating doctor that confirms that 18 Mr. Basil has been in his care since 2010. 19 Given some of the things that were said this 20 morning and some of the materials presented, I 21 think it is important for the Court to address 22 the question of whether Mr. Lafferty's death can 23 have a bearing on the sentence that I have to 24 impose today. 25 Drinking and driving is a serious problem in 26 this country and the ravages that it causes are 27 well known. For that reason, any charge Official Court Reporters 5 1 involving drinking and driving is considered to 2 be a serious matter. But, obviously, charges 3 that include having caused a person's death or 4 serious injuries are considered more serious than 5 charges that involve simply driving a motor 6 vehicle while impaired or with a blood alcohol 7 concentration that is over the legal limit. The 8 difference in seriousness between the two types 9 of charges is reflected in the maximum penalties 10 that can be imposed for these offences. For 11 example, driving with an alcohol concentration in 12 the blood that is over the legal limit is 13 punishable by a maximum of five years in jail if 14 the Crown proceeds by indictment. When the 15 charge is one involving impaired driving causing 16 death, the maximum penalty life imprisonment. In 17 addition, drinking and driving charges that do 18 not involve causing death or serious injury can 19 be proceeded summarily, which signals generally 20 less serious offences with less severe potential 21 penalties, whereas the charges that involve the 22 causing of death or serious injuries are 23 automatically indictable offences. 24 Here, the charge on which a stay of 25 proceedings was directed in August 2012 was by 26 far the most serious one that Mr. Basil faced. 27 The fact that this charge was stayed makes a Official Court Reporters 6 1 significant difference as far as what sentence 2 this court can impose today because it changes 3 the fundamental nature of what Mr. Basil is 4 admitting or acknowledging that he did and is 5 responsible for within the meaning of the 6 criminal law. 7 The decision as to what charge is proceeded 8 on is up to the Crown's office; it is not up to 9 the Court. In making its decisions as to which 10 charges should be proceeded on, the Crown follows 11 prosecution policies and guidelines which are a 12 matter of public record. Those policies are 13 publicly available. Those policies say that 14 matters are prosecuted when two criteria are met. 15 The first is that the evidence available to the 16 Crown is such that there is a reasonable prospect 17 of conviction on the charge. The second is that 18 a prosecution is in public interest. Having a 19 reasonable prospect of conviction means that the 20 evidence is strong enough to prove each element 21 of the offence charged beyond a reasonable doubt. 22 That is the standard of proof that applies on a 23 criminal case and it is a very high standard of 24 proof. It means that to have Mr. Basil convicted 25 of the count that was stayed, the Crown would 26 have had to prove something that is called 27 causation: that while his blood alcohol level Official Court Reporters 7 1 was above the legal limit, Mr. Basil caused an 2 accident that resulted in Mr. Lafferty's death. 3 There is a difference between what that means 4 within the context of criminal law and how people 5 understand causation in day-to-day life and this 6 was apparent this morning. 7 It is not surprising at all to the Court 8 that in the minds of Mr. Lafferty's family and 9 loved ones, Mr. Basil is responsible for 10 Mr. Lafferty's death. In fact, based on what he 11 has said, my impression is that Mr. Basil himself 12 seems to accept responsibility for that in that 13 sense, and I am not sure how this presents in his 14 mind. I am not sure if he thinks that if they 15 had only stayed on the island and waited for the 16 wind to die down, this would not have happened; 17 or if he wonders if he had taken some other route 18 to get back to shore, this would not have 19 happened; or if he feels responsible simply 20 because he was the one driving the boat. 21 Whatever it is, the fact is causation within the 22 meaning of criminal law means more than that. It 23 means looking into all of the circumstances, not 24 just what the accused person did but also what 25 everyone else did as well - and this is very 26 important - as well as outside factors that were 27 beyond anyone's control: in this case, factors Official Court Reporters 8 1 like the weather, the wind, the water 2 temperature, whatever caused the boat to stop, 3 everyone's conditions and decisions. Things of 4 that nature. 5 It is not for the Court to inquire why the 6 Crown made the decision it did to stay the count 7 that was stayed, but I will say for what it is 8 worth that based on the facts that were alleged 9 and admitted, it seems clear that there were many 10 factors at play that day that, very sadly, in 11 combination, led to this tragic result. These 12 included very rough water conditions on the lake; 13 it included whatever caused the boat to stop and 14 the conditions that were such that it became 15 swamped so quickly; the fact that there were no 16 lifejackets being used; the distance from shore 17 when the boat sank, which meant it was going to 18 inevitably take a while for someone to know what 19 was going on and for help to arrive; the fact 20 that the waters in the Great Slave Lake remain 21 very, very cold even in the summer. Based on all 22 the information that was presented this morning, 23 what I have been told overall, and although I do 24 not have the benefit of all of the evidence, I 25 have to say that it does appear that the Crown 26 would have had some problems establishing 27 causation beyond a reasonable doubt in this case. Official Court Reporters 9 1 That of course in no way changes or diminishes 2 the death and the loss experienced by 3 Mr. Lafferty's family. The Court recognizes 4 that, recognizes that loss and wants to express 5 its empathy for the family members, those who are 6 here today and those who are not here today. 7 There are all sorts of levels of 8 responsibility. There is criminal 9 responsibility, that can only be attributed based 10 on that very high standard of proof beyond a 11 reasonable doubt that I have already talked 12 about. There is civil responsibility, that can 13 be established on a lesser standard of proof. 14 And then there is moral responsibility, which is 15 not something that is dealt with or can be dealt 16 with by the courts. 17 Mr. Lafferty's family members, at least some 18 of the ones I heard from, hold Mr. Basil 19 responsible for what happened. As I have said, 20 Mr. Basil himself clearly feels responsible for 21 what happened. Those are normal human reactions. 22 But for the purposes of sentencing, I cannot take 23 into account, in the sentence I impose, the fact 24 that Mr. Lafferty died as a result of these 25 events because that is not what Mr. Basil has 26 pleaded guilty to. Even so, it is the Court's 27 hope that the fact that these proceedings took Official Court Reporters 10 1 place may play a part in helping those affected 2 by this in their own process of healing and 3 closure. 4 I have to say that the forgiveness expressed 5 to Mr. Basil by Mr. Lafferty's mother is 6 something that shows amazing character, required 7 a lot of personal courage, and was very 8 compelling and moving to hear. 9 Mr. Basil's apology and obvious distress 10 about what happened leaves no doubt about the 11 fact he is genuinely sorry, and hopefully that 12 can also be an important piece in healing from 13 all of this, although, of course, nothing can 14 change what has happened. 15 Having said all of that, I must turn to the 16 analysis that has to be undertaken to decide what 17 a fit sentence is for this offence. 18 In any sentencing decision, the Court must 19 take into account the principles and objectives 20 of sentencing that are set out in the Criminal 21 Code. It is well established that in dealing 22 with drinking and driving offences, the 23 principles of denunciation and deterrence are 24 very important. 25 Every time a person uses a motor vehicle or 26 a vessel while under the influence of alcohol, 27 the risk of serious injury or death being caused Official Court Reporters 11 1 is very real. The case books are full of such 2 tragic cases where lives have been ruined because 3 someone made the decision to drive when they 4 should not have been. Alcohol impairs judgment 5 and reflexes. Motor vehicles and motor-propelled 6 vessels are powerful and they should not be 7 operated by people whose faculties are 8 diminished. 9 The majority of drinking and driving cases 10 involve people who are driving cars. There are 11 fewer cases involving vessels, but that does not 12 mean that the risk of mixing alcohol and driving 13 motorboats should be underestimated. The mix of 14 alcohol and motorboats is every bit as dangerous 15 as the mix of alcohol and cars. Driving a 16 motorboat requires skills, knowledge, and good 17 reflexes. Conditions on the water can change 18 very quickly. The person driving a motorboat 19 needs all their wit, judgment, and reflexes. 20 They need to be able to react quickly to changing 21 conditions, to the weather, to obstacles they may 22 encounter on the water, and on a body of water 23 the magnitude of Great Slave Lake, that is 24 especially the case. 25 I think it is fair to say that public 26 awareness about the risks of driving cars while 27 impaired has increased a lot over the last 20 or Official Court Reporters 12 1 30 years. The problem of drinking and driving is 2 far from resolved on our roads, but there is more 3 awareness and more public outcry about the 4 possible consequences of this type of conduct. 5 Drinking and driving a car is certainly not 6 something that is generally considered to be 7 "cool" or acceptable in our society of today. I 8 am not convinced at all that the same awareness 9 exists about the risks of operating vessels while 10 intoxicated. For that reason, the Court has to 11 send a clear message about the seriousness of 12 that conduct because of the risk that it entails. 13 This is especially true in a jurisdiction like 14 ours where lakes are everywhere and many, many 15 people operate motorboats in the summer months. 16 In considering the importance of general 17 deterrence, I also take into account that the 18 detection of these offences regarding motorboats 19 is more difficult than with cars. It is much 20 harder for the police to monitor activities on 21 the many lakes in the Northwest Territories than 22 it is on the relatively few number of roads that 23 we have. The authorities, I know, do sometimes 24 patrol the navigable waters in the Yellowknife 25 area, but, realistically, I think people know 26 there is a greater risk of getting caught 27 drinking and driving a car than drinking and Official Court Reporters 13 1 driving a boat. And as I have already alluded 2 to, in a jurisdiction where water is everywhere 3 and many, many people go boating in the summer, 4 it has to be made very clear to people that if 5 they take the risk and get caught, there will be 6 severe consequences. 7 In addition to the sentencing principles, 8 the Court must also be focused primarily on the 9 specific facts that it is dealing with and take 10 into account aggravating and mitigating factors. 11 Here, the guilty plea and what I accept as 12 genuine, heartfelt remorse on Mr. Basil's part 13 are mitigating factors. So is the fact that 14 Mr. Basil recognizes that he needs to keep 15 alcohol out of his life and the steps that he has 16 taken to achieve this, which are to his credit. 17 But there are aggravating factors as well. 18 Mr. Basil has been convicted of drinking and 19 driving offences before and has a number of other 20 convictions on his criminal record. I recognize 21 that the related convictions are very dated and 22 that the last time he was convicted of anything 23 was 13 years ago, but, still, he does not come 24 before the Court as someone who has never been in 25 trouble with the law or never been convicted of 26 this particular type of crime. In addition, the 27 concentration of alcohol in his blood was very, Official Court Reporters 14 1 very high. The Criminal Code now makes that a 2 statutory aggravating factor, but readings as 3 high as these were always treated as an 4 aggravating factor by the courts in this 5 jurisdiction. 6 The minimum penalty for this offence is a 7 fine of $1,000 and the maximum penalty is five 8 years in jail. Although this court does not 9 usually deal with these types of offences because 10 most of them are dealt with in the Territorial 11 Court, the Court is aware that absent significant 12 aggravating factors, fines are usually imposed 13 for a person who is convicted for the first time 14 of drinking and driving offences. For a 15 subsequent offence, even when the minimum 16 penalties are not triggered because the Crown has 17 not filed a Notice of Intention to Seek Greater 18 Punishment, jail is sometimes imposed even if it 19 is not mandatory. But obviously that depends on 20 the individual circumstances of each case and, to 21 an extent, on how dated the other convictions 22 are. 23 I have already talked about the sentencing 24 principles of deterrence and denunciation, but 25 another important sentencing principle is 26 restraint. That principle means that jail should 27 only be imposed where no other sanction will Official Court Reporters 15 1 achieve the sentencing goals set out in the 2 Criminal Code. Applying that principle, taking 3 into account that Mr. Basil has pleaded guilty, 4 his overall circumstances, the consequences he 5 has already faced and will continue to face 6 arising from these events, and the fact that he 7 did spend some time in custody after he turned 8 himself in in Alberta and was escorted back to 9 the Northwest Territories, I cannot in this case 10 say that a jail term is required to achieve the 11 goals of sentencing and I accept that the proper 12 penalty for the offence Mr. Basil has pleaded 13 guilty to is a fine. That fine, however, has to 14 be significant enough to address the concerns I 15 have talked about, to denounce his conduct and 16 deter others who may be inclined to behave in the 17 same manner, in particular in relation to 18 motorboats. Coincidentally, the boating season 19 is almost upon us. The message has to be clear 20 that driving motorboats and being intoxicated is 21 a potentially lethal mix every bit as much as 22 driving a car while intoxicated. 23 At first blush, given the aggravating 24 factors I have talked about and the other 25 principles I have talked about, I would have been 26 inclined to impose a fine higher than what is 27 being suggested by counsel. But in imposing a Official Court Reporters 16 1 fine, the Court must take into account the 2 offender's ability to pay. Here, based on what I 3 heard about Mr. Basil's situation, his health 4 problems and his limited income, I have concluded 5 that what is being jointly submitted by counsel 6 is, in fact, reasonable. 7 As I indicated this morning, I would also 8 normally be inclined to impose a victim of crime 9 surcharge in circumstances such as this because 10 no jail term is being imposed, but, again, I have 11 taken into account what defence counsel has said 12 generally about Mr. Basil's means and 13 specifically also the costs he has incurred to 14 return to the Northwest Territories to attend 15 these proceedings. I heard that it cost him 16 between six and seven hundred dollars to come to 17 Hay River and, given his means, that is not an 18 insignificant amount of money. So I have 19 concluded, under the circumstances, that there 20 should not be a victim of crime surcharge imposed 21 because it would result in hardship. 22 Mr. Basil, stand up, please. 23 Sir, for the charge that you have pleaded 24 guilty to, I hereby sentence you to a fine of 25 $2,000 as was suggested by the lawyers. I will 26 give you 18 months to pay that fine or to work it 27 off, again, because of what your lawyer has told Official Court Reporters 17 1 me. In addition to that, you will be prohibited 2 from driving any motor vehicle for a period of 18 3 months. You can sit down. 4 Mr. Basil, I just want to say a few more 5 things to you. I believe you. I certainly 6 believe you when you say you are sorry about what 7 happened, and I know that living with this for 8 the rest of your life is a burden that is a lot 9 heavier than anything than I could have done 10 today as part of my sentence. I understand that. 11 I have heard that you do some volunteer work, 12 that you are involved in some community 13 organizations where you live. Maybe if you have 14 the opportunity ever when you do that kind of 15 work, you have the opportunity to share your 16 experience with people when you are ready to do 17 that, the importance of not mixing alcohol with 18 boats and vehicles, you can share some of what 19 you have lived through. It might be something 20 that could make a huge difference in someone's 21 life. Because of what happened, I am sure you 22 will be more convincing if you talked about that 23 than any ad than the government can put on the 24 radio or on television about what can happen. So 25 if you are ever able to do that, you might 26 actually be able to make a difference and avoid 27 someone living through what you have lived Official Court Reporters 18 1 through and what others have lived through. I 2 leave that thought with you. I am not ordering 3 you to do it, of course, I am just saying that 4 that is something perhaps, if you are ever able 5 to do, you could. That might actually make a 6 significant difference to someone on some lake. 7 But in the same way as I have expressed my 8 empathy for Mr. Lafferty's loved ones who are 9 here today and shared their loss, in the same way 10 that I said that I hope today's process will help 11 them with their process and closure, I hope that 12 in some way it will help you in that process as 13 well. 14 There will be an order that any exhibits 15 seized as part of this investigation can be 16 either returned to their rightful owners or 17 destroyed if that is more appropriate. 18 Is there anything else, Counsel, that I have 19 not addressed that needs to be addressed? 20 MR. DAVISON: Not that I can think of. 21 Thank you. 22 MR. GODFREY: Nothing I can think of, Your 23 Honour. 24 THE COURT: Before we close court, I want 25 to thank the people who attended today and I want 26 to thank those who shared what they could today 27 as part of this process. I want to thank counsel Official Court Reporters 19 1 for their work in resolving this difficult case. 2 With that, we can close court. 3 THE COURT CLERK: Thank you, Your Honour. All 4 rise. Court is now closed. 5 ................................. 6 7 8 Certified Pursuant to Rule 723 of the Rules of Court (transcribed 9 from audio recording) 10 11 12 Jane Romanowich, CSR(A) Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 20
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