Supreme Court

Decision Information

Decision information:

Transcript of the Reasons for Sentence

Decision Content

R v Moore, 2018 NWTSC 11           S-1-CR-2017-000147

 

 

AMENDED ORIGINAL

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 


IN THE MATTER OF:


 

HER MAJESTY THE QUEEN

 

 

- v -


 

 

JOSHUA RYAN CLIFFORD MOORE

Original amended as of October 26, 2018, to: Cover page:        Publication ban removed

_________________________________________________________ Transcript of the Reasons for Sentence held before The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 17th day of January, 2018.

_________________________________________________________ APPEARANCES:

 

Mr. A. Godfrey:               Counsel for the Crown

Mr. R. Clements:              Counsel for the Accused

 

 

(Charges under s. 255(3), s.255(2) of the Criminal Code)

 

THIS DECISION IS NOT SUBJECT TO A PUBLICATION BAN


 

1            THE COURT:             Joshua Moore has pleaded

2                    guilty to charges of impaired driving causing

3                    death and impaired driving causing bodily harm,

4                    and I must now sentence him for that offence.

5                             Crown and defence have presented the Court

6                    with a joint submission.  They are jointly

7                    suggesting that the sentence that should be

8                    imposed is two-and-a-half years' imprisonment

9                    together with a driving prohibition for a period

10                   of five years.  They are also jointly taking the

11                   position that a DNA order and a firearms

12                   prohibition order should be made.

13                             At the time of the sentencing hearing on

14          December 19th, I expressed concern about the

15                   joint submission.  Counsel said at the hearing

16                   that the sentence being jointly proposed was at

17                   the low end of the range.  And when I questioned

18                   counsel about the appropriateness of that joint

19                   position, they maintained that it was a fit

20                   sentence having regard to the circumstances of

21                   the case, and in particular the mitigating

22                   factors that are present.

23                             Having now taken some time to think about

24                   those submissions and having reviewed carefully

25                   the cases that were filed, as well as all the

26                   other materials that were filed at the hearing, I

27                   am going to say at the outset that although I


 

1                    continue to think that this is a very lenient

2                    sentence, overly lenient in my view, I have also

3                    concluded that because of the law that now

4                    governs joint submissions, it is not open to me

5                    to depart from what is being proposed as far as

6                    the duration of the jail term.

7                             There are aspects of the ancillary orders

8                    that are being proposed that I am unable to agree

9                    with, and I will explain why, but as far as the

10                   jail term of two and a half years, I do not think

11                   that it is open to me to depart from it.

12                             I understand that from the perspective of

13                   the public, it may seem contradictory to have a

14                   judge say that she disagrees with a proposed

15                   sentence and yet still impose that sentence, so I

16                   am going to take quite a bit time this afternoon

17                   to try to explain this decision.

18                             As is always the case in imposing sentence,

19                   a judge must take into account the circumstances

20                   of the offence, the circumstances of the person

21                   who committed the offence, and the legal

22                   principles that govern sentencing.

23                             Dealing first with the circumstances of the

24                   offence.  On the day of these tragic events, just

25                   before 9 a.m., Mr. Moore was driving in the area

26                   of Sissons Court in Yellowknife, and he came upon

27                   four people he knew.  He offered them a ride, and


 

1                    they accepted.  At first Mr. Moore drove around

2                    and in Yellowknife.  He was driving very fast.

3                    One witness thought at one point he was going as

4                    fast as 180 kilometers per hour.  Whatever the

5                    exact speed was, which is something we will never

6                    know, it was scaring the passengers, and they

7                    asked him to slow down.

8                             Eventually Mr. Moore drove outside of

9                    Yellowknife down the Ingraham Trail Highway.  He

10                   stopped at the recreational area at the

11                   Yellowknife River Bridge.  He and his passengers

12                   consumed alcohol there.  They got going again and

13                   Mr. Moore continued driving down the Ingraham

14                   Trail further east.  At that point he was going

15                   100 kilometers per hour.  The posted speed limit

16                   for that portion of the road is 70 kilometers per

17                   hour.  Quite apart from the posted speed limit,

18                   it is an agreed fact that 100 kilometers per hour

19                   is an excessive speed to be driving on that

20                   portion of the road.

21                             At one point Mr. Moore went over the centre

22                   line and came upon another vehicle going in the

23                   opposite direction.  He swerved back into his

24                   lane, narrowly missing the other vehicle.  300 or

25                   400 meters further, Mr. Moore came upon a sharp

26                   turn on the road just before the Prosperous Lake

27                   pullout area.  There is a sign on the road ahead


 

1                    of this turn that warns that it is a sharp turn.

2                             Mr. Moore was not able to negotiate this

3                    turn.  He hit the shoulder and lost control of

4                    the vehicle.  The vehicle ran off the shoulder,

5                    was in the air for a few meters, then hit the

6                    ditch where it rolled and came to a stop in

7                    nearby water.  There was water up to halfway up

8                    the doors of the vehicle.  Mr. Moore admits that

9                    at the time of the crash, he was driving between

10                   100 and 130 kilometers per hour.

11                             Other motorists came upon the crash site and

12                   called for help.  Emergency personnel arrived on

13                   the scene shortly thereafter.  The police officer

14                   who spoke to Mr. Moore at the scene did not

15                   initially detect any signs of impairment, but

16                   when she asked him to blow his breath in her

17                   face, she noted an odor of liquor.  She demanded

18                   that he provide a sample of his breath in a

19                   screening device, and the result was a "fail."

20                   Mr. Moore was arrested, advised of his rights,

21                   and a Breathalyzer demand was read to him.  He

22                   later provided samples of his breath.

23                             The results of the Breathalyzer testing were

24                   that there was 100 milligrams of alcohol in

25                   100 milliliters of blood on the first sample, and

26                   90 milligrams of alcohol in 100 milliliters of

27                   blood on the second sample.  The legal limit is


 

1                    80 milligrams of alcohol in 100 milliliters of

2                    blood.  Mr. Moore admits that his ability to

3                    operate the motor vehicle was impaired by alcohol

4                    at the time of this crash, and that the alcohol

5                    concentration in his blood was a significant

6                    contributing cause to the crash.

7                             One of the passengers miraculously was not

8                    injured, but others were not so lucky.  In fact,

9                    the consequence of this crash were disastrous.

10                   Karen Lafferty died as a result of the injuries

11                   that she sustained in this crash.  Another

12                   passenger, April Goulet was seriously injured.

13                   She suffered a broken shoulder, broken pelvis,

14                   fractured ribs, and a fractured sternum, as well

15                   as a contusion on her left lung.  She was

16                   medivaced to the Alberta Hospital in Edmonton,

17                   and remained there until May 30th.  She was

18                   transferred back to the hospital in Yellowknife

19                   and received further treatment and was discharged

20                   on June 14th.

21                             Another passenger suffered a broken arm as a

22                   result of the crash, and had surgery.  Mr. Moore

23                   was injured as well.  He broke his arm and

24                   required several surgeries and has still not

25                   fully healed.

26                             Mr. Moore has been in custody since his

27                   arrest, which now adds up to 242 days.  Credited


 

1                    at a rate of one and a half days of credit for

2                    each day in remand, which is what the law says is

3                    open to me to grant him, this adds up to

4                    363 days, which is just a few days short of

5                    one year.

6                             Mr. Moore pleaded guilty to these charges on

7          November 6th, 2017.  The sentencing hearing was

8                    adjourned so that a presentence report could be

9                    prepared.  I heard on December 19th that early on

10                   Mr. Moore expressed an intention to plead guilty

11                   on this matter, and that, in fact, the resolution

12                   discussions between Mr. Moore's counsel and the

13                   Crown started even before the disclosure process

14                   was complete.  There was no preliminary hearing

15                   in this case, which means that none of the

16                   passengers nor any other witnesses ever had to

17                   give evidence on this case.

18                             After I heard sentencing submissions on

19          December 19th, the matter was adjourned to last

20                   week for my decision.  At the time of the

21                   sentencing hearing, I had been told that

22                   Ms. Lafferty's family and the other victims had

23                   been made aware of their right to prepare victim

24                   impact statements, but they had chosen not to

25                   prepare any.  This was, I was told, because they

26                   were too overwhelmed by these events to do so,

27                   and they were still consumed with their grief.


 

1                    There were comments to a similar effect on the

2                    presentence report, because the author had

3                    attempted to contact the victims as well.

4                             On the day scheduled for my decision last

5                    week, counsel advised that members of

6                    Ms. Lafferty's family had approached the Crown

7                    and did want to provide victim impact statements.

8                    So last week, instead of me giving my decision, I

9                    heard these victim impact statements.

10                             Ms. Lafferty's grandmother, who raised her,

11                   read her victim impact statement to me herself.

12                   Two others, from Ms. Lafferty's mother and her

13                   sister-in-law were read by the Crown.  Three

14                   more, two from her sisters and one from her

15                   12-year-old niece, were not read out loud, but I

16                   have read them.  They were all very sad.  They

17                   speak volumes about the immense tragedy that

18                   these events have brought to the lives of

19                   Karen Lafferty's family.

20                             As I said last week to family members that

21                   were here, I know that nothing this Court does on

22                   sentencing can bring her back and undo the

23                   terrible harm that was done.  I can only hope

24                   that the conclusion of the criminal proceedings

25                   might be one step towards healing and closure.

26                             I was struck by the last words of the victim

27                   impact statement of Ms. Lafferty's grandmother.


 

1                    Those words are: (As read)

2                             My husband and I talk about missing Karen a lot, but we also know that we

3                             have to find a way to go ahead.

4                    Those words are very true, very wise, and very

5                    brave, and I do hope that those affected by these

6                    tragic events will find a way to go ahead and

7                    keep going, as she said.

8                             Earlier this afternoon we heard another

9                    victim impact statement.  It was sent to the

10                   Court just yesterday, and it was written by

11                   Ms. Goulet.  It, too, describes the impact that

12                   these events had on her, both from a physical

13                   point of view and from a psychological point of

14                   view.  Her physical injuries were significant,

15                   and I do not doubt that there is a long road

16                   ahead for her, even longer perhaps to heal from

17                   the emotional scars that these events have left

18                   on her.

19                             She expresses her sadness about

20                   Ms. Lafferty's death, and the impact that it has

21                   had on her family.  She expresses anger towards

22                   Mr. Moore, and that anger is entirely

23                   understandable under the circumstances.

24                             The timing of the presentation of these

25                   victim impact statements was unusual in the sense

26                   that ordinarily I would have heard them all back

27                   in December.  These victim impact statements, the


 

1                    ones that were read last week and the one that

2                    was read this afternoon, certainly have assisted

3                    me in understanding even more the impact that

4                    this crime had.  But they are not, in law, a

5                    basis for changing my decision in this case.

6                             The second factor that needs to be

7                    considered at any sentencing, as I said already,

8                    are the circumstances of the person who has

9                    committed the offence.  So I turn now to

10                   Mr. Moore's personal circumstances.  I have the

11                   benefit of a detailed presentence report that

12                   talks about that; about his circumstances, his

13                   family's circumstances, and information about

14                   specific factors that relate to his aboriginal

15                   heritage.  His mother has also written a letter,

16                   which was filed as an exhibit, and I have read it

17                   carefully.

18                             The report was marked as an exhibit, and it

19                   is part of the record.  I am not going to refer

20                   to all its details here.  It is very difficult to

21                   do justice to a detailed report like that simply

22                   by trying to summarize it, but I will say a few

23                   things about it.  I have considered all of it,

24                   whether I mention a specific aspect or not today.

25                             Mr. Moore is now 29.  He is Gwich'in.  He

26                   was born in Inuvik and spent the first years of

27                   his life there.  He has never met his biological


 

1                    father.  Until he was six, he lived with his

2                    mother, his grandmother, and Jackie Storr, who

3                    was his grandmother's partner at the time, as

4                    well as an aunt and uncle.  When he was six his

5                    mother relocated to Yellowknife.  For a time he

6                    stayed behind in Inuvik with his grandmother and

7                    Mr. Storr.  Once his mother was able to get a

8                    house and get settled in Yellowknife, she brought

9                    him to Yellowknife.  And that is where he has

10                   lived since.

11                             According to the author of the report,

12                   Mr. Moore views himself as having had a happy

13                   childhood.  Mr. Moore told the author of the

14                   presentence report that he had always felt loved,

15                   supported, and provided for, that he had a

16                   positive upbringing, free of violence, and that

17                   although as a youth he saw some substance abuse

18                   within the home, this stopped when he was older.

19                   He described himself as having been spoiled as a

20                   child, and that he often got to do as he pleased.

21                   This is confirmed by his mother and others who

22                   were interviewed by the author of the presentence

23                   report.

24                             There are indications that there was little

25                   to no structure in the home.  Mr. Moore was not

26                   required to participate in chores, did not have a

27                   curfew, and did whatever he wanted.  The report


 

1                    also says that Mr. Moore had difficulties

2                    adjusting after his move to Yellowknife.  He

3                    associated with a group of peers who did not

4                    follow the rules of their homes and did not

5                    attend school.  At that point his mother tried to

6                    establish some rules, but in the words of the

7                    presentence report, Mr. Moore was so accustomed

8                    to not having any structure that nothing seemed

9                    to work.

10                             Mr. Moore eventually got into trouble with

11                   the law.  His criminal record dates back to when

12                   he was a youth.  It includes a variety of

13                   convictions including several convictions for

14                   drug offences, property offences, failures to

15                   comply with court orders, and one conviction for

16                   aggravated assault, for which he was sentenced to

17                   23 months imprisonment in 2012.  There are no

18                   drinking and driving offences on his record,

19                   however.

20                             It seems clear to me that Mr. Moore has

21                   substance abuse issues.  He started consuming

22                   alcohol when he was 10 and first experimented

23                   with drugs when he was 11.  For a period of time

24                   he was using cocaine on a regular basis.  He has

25                   on several occasions consumed alcohol to excess,

26                   to the point of being held in the drunk tank.

27                   Many of the offences that he has been convicted


 

1                    for were committed when he was under the

2                    influence of alcohol or drugs.

3                             Mr. Moore sustained a head injury as a

4                    result of being beaten up some 13 years ago when

5                    he was around 16.  He was seriously injured and

6                    was in a coma for two weeks after this assault.

7                    He says, and this is confirmed by his mother,

8                    that to this day he has issues with his memory,

9                    and he thinks that is a consequence of this head

10                   injury that he suffered.

11                             Mr. Moore has the continued support of his

12                   mother, as he does the support of Mr. Storr.

13                   Mr. Storr's relationship with Mr. Moore's

14                   grandmother ended a long time ago, but Mr. Moore

15                   and Mr. Storr have remained close.  Mr. Moore is

16                   very fortunate to have this support, more

17                   fortunate than many offenders who come before the

18                   Court.

19                             The presentence report notes that attempts

20                   were made over the years to set Mr. Moore up to

21                   take counselling to address his issues.  There

22                   are indications in the report that some of these

23                   efforts may have failed through no fault of

24                   Mr. Moore's, but there are also indications that,

25                   in other respects, there was a lack of motivation

26                   and engagement on his part.  For example, the

27                   report says that in 2013, while in custody, he


 

1                    completed the National Substance Abuse Program,

2                    but he, "required a lot of assistance to do the

3                    work" and "often lacked motivation."

4                             Bearing in mind he was serving a sentence

5                    for aggravated assault, a very serious offence,

6                    this lack of motivation is troubling, to say the

7                    least.  More recently while on remand he has

8                    attended AA meetings.  This for sure is a step in

9                    the right direction.  On the other hand, the

10                   report also says that the jail psychologist met

11                   with him once, and when other attempts were made

12                   to set up other meetings, Mr. Moore did not take

13                   the psychologist up on that opportunity.  The

14                   psychologist is of the view that Mr. Moore could

15                   benefit from more sessions, but, of course,

16                   unless Mr. Moore himself is motivated to help

17                   himself, nothing will come of this.  Counselling

18                   cannot be forced on a person who does not want to

19                   receive it.

20                             I recognize that the evidence shows that

21                   Mr. Moore, as an aboriginal person, was affected

22                   by the systemic and background factors that have

23                   had an impact on the lives of aboriginal people

24                   in this country.  I also recognize that he was

25                   exposed to alcohol abuse in the home for part of

26                   when he was growing up.  He also, no doubt, was

27                   affected by not having ever known his father.


 

1                    None of that can be overlooked in deciding what

2                    his sentence should be.  Mr. Moore's aboriginal

3                    heritage and some of the struggles he has faced

4                    must be taken into account and do mitigate his

5                    blameworthiness to a point.

6                             That being said, his background is far more

7                    positive than many aboriginal offenders who come

8                    before the Court.  As has been noted in several

9                    cases, the application of the principles set out

10                   in the Supreme Court of Canada decisions of R v

11                   Gladue and R v Ipeelee should not be interpreted

12                   as operating an automatic reduction in the

13                   sentence that should otherwise be imposed for an

14                   offence, particularly for a serious offence.  And

15                   this is a very serious offence.

16                             No one must lose sight of the fact that

17                   Ms. Lafferty was also an aboriginal woman.  She

18                   and her family were also affected by the systemic

19                   issues, disadvantages, and unfairness that Gladue

20                   and Ipeelee talk about.  And now on top of that,

21                   they also have to deal with the added burden of

22                   this terrible loss as a direct consequence of

23                   Mr. Moore's actions.  They have to live with this

24                   pain every single day.

25                             As I already noted, it appears Mr. Moore was

26                   a very spoiled young man.  He was not forced to

27                   comply with rules, and he spent a lot of his life


 

1                    as a teenager and young adult not following

2                    rules.  It also seems that Mr. Moore, at least up

3                    until the time of these events was continuing to

4                    be spoiled, at 29 years old, still living with

5                    his mother, still dependent on her and others

6                    financially.  I realize he has had difficulties

7                    in school, but a lot of people who do not have

8                    extensive education still work to support

9                    themselves.  There is no reason Mr. Moore cannot

10                   work to support himself, or at least help his

11                   mother financially contribute to the expenses of

12                   her home if he is going to continue living with

13                   her.

14                             Mr. Moore's behaviour on the day of these

15                   events shows that his problems with the law, his

16                   exposure to whatever programs were available to

17                   him in custody, the added supervision he had when

18                   he was on probation have not worked.  They have

19                   not made him more inclined to follow the rules of

20                   society.  He was driving without a licence.  He

21                   was driving faster, much, much faster, than the

22                   speed limit, and he drank before driving and

23                   while he was driving.

24                             Mr. Moore is not a child anymore, and he has

25                   to stop acting like one.  Whatever struggles he

26          may have had, those cannot become permanent

27          excuses to do whatever he wants and act


 

1                    recklessly.  One can only hope that the

2                    disastrous consequence of his actions on

3          May 21st, 2017, will have brought home to him

4                    that he needs to make some significant changes.

5                    Only time will tell.  Although I accept that he

6                    is sorry for the harm he has caused, and although

7                    I do agree with his counsel that his attendance

8                    in AA is a positive step, a step in the right

9                    direction, I have to say I find it extremely

10                   worrisome and disturbing that he has not shown

11                   more interest in taking up the jail psychologist

12                   on his offer for more sessions, considering the

13                   seriousness of the offence he has committed and

14                   its consequences.

15                             Based on everything I have heard and read

16                   about Mr. Moore, I fear that unless he engages in

17                   a meaningful, long-term process to address his

18                   substance abuse issues, and whatever else is at

19                   the root of his behaviour, he will continue to

20                   present a threat to public safety.  I am not a

21                   psychologist, and I do not know what processes,

22                   counselling, or treatment may be needed to help

23                   him make progress in this regard, but something

24                   has to happen, otherwise he will be back before

25                   the Court before long, possibly after having

26                   caused great harm again.

27                             I turn now to the legal framework.  It has


 

1                    been recognized by the Courts for many years that

2                    drinking and driving causes a veritable carnage

3                    on the roads of this country.  Every year

4                    innocent people are killed by drunk drivers.  It

5                    has long been a serious problem, and it continues

6                    to be.  There have been countless education

7                    campaigns, and significant effort has gone into

8                    trying to get the message through about the

9                    devastation that this totally preventable crime

10                   causes.  Still, people drink and drive.

11                             People from all walks of life, all

12                   backgrounds, do this.  Notably, people who are

13                   normally law-abiding, responsible citizens commit

14                   this crime sometimes, and many, many do not get

15                   caught.  Many do get caught but do not have

16                   accidents and do not end up hurting anyone.  But

17                   sometimes what happened in this case happens.

18                   Someone gets seriously hurt or killed.

19                             The Courts cannot single-handedly solve this

20                   problem, not any more than Courts can

21                   single-handedly solve any other social problem.

22                   Courts have a limited number of tools, mostly

23                   very blunt instruments, to respond to these

24                   crimes.  Parliament decides what sentence are

25                   available and sometimes are mandatory for

26                   offences.  Parliament has responded to the

27                   persistent problem of drinking and driving by


 

1                    increasing the penalties for these offences, and

2                    Courts have imposed sentence of increased

3                    severity.

4                             It's relatively rare that the Supreme Court

5                    of Canada has occasion to deal with sentence

6                    appeals, but it did a few years ago in R v

7                    Lacasse, 2015 SCC 64, a case of impaired driving

8                    causing death.  That gave the Court a opportunity

9                    to make some comments about sentencing in these

10                   types of cases.  Ultimately, the Supreme Court of

11                   Canada restored a significant jail term that had

12                   been imposed by the sentencing judge and had been

13                   overturned by the Court of Appeal.

14                             The case engaged a number of issues, but I

15                   want to refer here primarily to the general

16                   comments that the Court made, and this is the top

17                   court in the country, about the sentencing

18                   principles that are paramount in drunk driving

19                   cases.  First the Court said that deterrence and

20                   denunciation are the sentencing objectives that

21                   must be emphasized in these cases to convey

22                   society's condemnation of drinking and driving.

23                   The Court then said: (As read)

24                             While it is normal for trial judges to consider sentences other than

25                             imprisonment in appropriate cases, in the instant case, as in all cases in

26                             which general or specific deterrence and denunciation must be emphasized,

27                             the Courts have very few options other than imprisonment for meeting


 

1                             these objectives, which are essential to the maintenance of a just,

2                             peaceful, and law-abiding society.

3                             The increase in the minimum and maximum sentences for impaired

4                             driving offences shows that Parliament wanted such offences to be

5                             punished more harshly.  Despite countless awareness campaigns

6                             conducted over the years, impaired driving offences still cause more

7                             deaths than any other offences in Canada.

8

This sad situation, which

9                             unfortunately continues to prevail today, was denounced by Justice Cory

10                             more than 20 years ago.

11                   And the Court here quotes what Justice Cory had

12                   said, which was:  (As read)

13                             Every year, drunk driving leaves a terrible trail of death, injury,

14                             heartbreak and destruction.  From the point of view of numbers alone, it

15                             has a far greater impact on Canadian society than any other crime.          In

16                             terms of the deaths and serious injuries resulting in

17                             hospitalization, drunk driving is clearly the crime which causes the

18                             most significant social loss to the country.

19

20                             The Supreme Court noted as well, as I did a

21                   moment ago, that this type of offence is often

22                   committed by law-abiding citizens, and that those

23                   people may be more sensitive to harsh sentences

24                   than other types of offenders.  Then after

25                   speaking of ranges of sentences for these types

26                   of offences across the country, the Supreme Court

27                   noted at paragraph 65 of the decision that in


 

1                    most jurisdictions, for impaired driving causing

2                    death:

3                             Sentences vary from 18 months to two years in the least serious

4                             situations and from seven to eight years in the most serious.

5

6                             These are the general legal principles that

7                    emerge from that Supreme Court of Canada case.

8                    Aside from that case, counsel filed a number of

9                    cases at the sentencing hearing.  I am not going

10                   to refer to each of them in detail, but I do want

11                   to make some comments about those cases.  No two

12                   cases are ever alike, and because of this,

13                   looking at the outcome in other cases to identify

14                   what the sentence should be in this case is

15                   always difficult.  Looking to other cases usually

16                   is more helpful to identify governing principles

17                   than it is in assisting in the determination of

18                   what the bottom line decision should be.  At the

19                   same time, one of the principles of sentencing is

20                   parity; the idea that similar offences committed

21                   by similar offenders should result in similar

22                   sentence.  And because of that, it is quite

23                   proper, as counsel have done, to refer to other

24                   cases and their outcomes and note similarities

25                   and differences between those cases and the case

26                   at bar.

27                             The cases provided by counsel are useful,


 

1                    but I disagree with some aspects of counsels'

2                    comparative analysis between those cases and this

3                    one.  I am not convinced that those cases support

4                    a two-and-a-half year jail term that is being put

5                    forward for this offence committed in these

6                    circumstances.  My view is that the cases filed,

7                    in particular, the ones that have most persuasive

8                    weight, support the proposition that a much more

9                    severe sentence ought to be imposed in the

10                   circumstances of this case.  I find that this is

11                   so, in particular, based on the cases from the

12                   Alberta Court of Appeal, those cases being

13                   particularly persuasive in this jurisdiction

14                   given the composition of our own Court of Appeal.

15                             For example, in R v Gibson, 2015 ABCA 41,

16                   the sentencing judge imposed a sentence of

17                   two years and eight months, which was challenged

18                   on appeal.  At the sentencing hearing, there had

19                   been a joint submission for a sentence of

20                   two years.  Not only did the Court of Appeal not

21                   reduce the sentence imposed at trial, but it said

22                   that a sentence of four to five years could have

23                   easily been justified.  The Court of Appeal also

24                   referred to cases from other jurisdictions where

25                   sentences of four-and-a-half years were imposed

26                   in less egregious circumstances than the ones in

27                   that case.


 

1                             I certainly agree with counsel that the

2                    circumstances in the Gibson case were more

3                    aggravating than the circumstances in this case.

4                    In particular, the accused had passed a vehicle

5                    and then stayed in the wrong lane long enough to

6                    drive two other vehicles off the road before

7                    crashing into a third, killing its occupant.  And

8                    the accused blood alcohol level in Gibson was

9                    higher than was the case here.

10                             Still, that was a case where the accused was

11                   only 22, pleaded guilty, and had no criminal

12                   record.  So there were mitigating factors.  So I

13                   question whether the additional aggravating

14                   features in the Gibson case justify a gap of some

15                   one-and-a-half to two-and-a-half years between

16                   what the Court of Appeal said in that case could

17                   easily be justified and what is been proposed

18                   here.

19                             The case of R v York, 2015 ABCA 129, is

20                   another Alberta Court of Appeal decision.  The

21                   accused in that case crossed the centre line and

22                   struck a motorcyclist who was going in the

23                   opposite direction, killing him.  The accused's

24                   blood alcohol contents in that case were very,

25                   very high at 240 milligrams of alcohol in

26                   100 milliliters of blood.  In addition, the

27                   accused had two prior convictions for drinking


 

1                    and driving and two prior convictions for driving

2                    while disqualified.  And a further aggravating

3                    factor was that he walked away from the scene

4                    when the victim, who eventually died, was in

5                    distress.  So there were aggravating factors in

6                    that case that are not present in this one.

7                    There was an early guilty plea, and the Court

8                    found there was genuine remorse, and the

9                    principles that I talked about emerging from the

10                   cases of Gladue and Ipeelee were not engaged in

11                   that case.

12                             The sentence imposed at trial in York was

13                   six years with the driving prohibition of

14                   10 years.  Mr. York appealed and the Court of

15                   Appeal upheld the sentence.  One of the things

16                   the Court of Appeal noted, which can be said of

17                   Mr. Moore as well, is that the accused would have

18                   been aware of his alcohol problem for several

19                   years before these events.  In its decision the

20                   majority quoted from another case, this one from

21                   the Manitoba Court of Appeal, R v Ruizfuentes,

22                   2010 MBCA 90, which identified the proper range

23                   for these offences as being one to four years for

24                   offenders who have no prior convictions for

25                   drinking and driving or serious personal injury

26                   offence.  And that for those who do have a prior

27                   record for driving and driving or a serious


 

1                    personal injury offence, the range is five to

2                    six years.  This is in line with my view that

3                    Mr. Moore's criminal record, although unrelated

4                    to drinking and driving, is aggravating because

5                    it does include a conviction for aggravated

6                    assault, which should be taken into account in

7                    deciding what a fit sentence is.

8                             There was a dissenting judge in York, but it

9                    is noteworthy that although that judge would have

10                   allowed the appeal, he would have reduced the

11                   sentence but still imposed a sentence of

12                   five years.  So, again, as with the Gibson case,

13                   York has some aggravating factors that are not

14                   present in this case, most significantly, the

15                   higher readings, the related criminal record, and

16                   the fact that the offender walked away from the

17                   accident scene, but that case did not involve a

18                   prolonged dangerous driving pattern as is the

19                   case here.  And, again, comparing the features of

20                   that case with this one, I find the gap between

21                   the sentence upheld by the Court of Appeal in

22                   that case, even the one that would have been

23                   imposed by the dissenting judge, and the sentence

24                   proposed here, difficult to reconcile.

25                             Counsel appear to have placed great reliance

26                   on R v Schwarz, 2017 ABQB 224, a decision from

27                   the Alberta Court of Queen's Bench.  It's a


 

1                    recent decision rendered after the Supreme Court

2                    of Canada decision in Lacasse.  The sentencing

3                    judge in that case imposed a sentence of

4                    two-and-a-half years in jail in the case of

5                    impaired driving causing death.

6                             That case, as all these cases are, was

7                    tragic.  The accused had been drinking, he had

8                    been having a heated conversation on the phone,

9                    and had thrown the phone on the floor of his

10                   vehicle in frustration.  He then bent over to

11                   pick up the phone while driving, went through an

12                   intersection at a red light, and crashed into

13                   another vehicle, killing a young child who was in

14                   that other vehicle.

15                             In submissions I understood counsel to say

16                   that those circumstances are more aggravating

17                   than what Mr. Moore did, and with respect, I

18                   disagree with that assessment.  Yes, the

19                   behaviour in Schwarz was very dangerous.  Yes,

20                   the evidence was that his blood alcohol level was

21                   higher than Mr. Moore's.  Still, the crash in

22                   that case was the result of decisions made over a

23                   short period of time and at the worst possible

24                   moment.

25                             Unlike here, there was no evidence of a

26                   prolonged pattern of fast and risky driving,

27                   despite passengers being scared and asking the


 

1                    driver to slow down, and despite an accident

2                    having nearly happened just before the fatal

3                    crash.  Here we have Mr. Moore picking up people

4                    just before 9 a.m. and crashing the car somewhere

5                    around 9:15 and 9:30, and a lot of driving in

6                    between, even taking into account the stop at the

7                    Yellowknife River.  So that is much, much more

8                    than a brief lapse in attention or a very

9                    short-lived loss of control of the vehicle.  It

10                   suggests reckless and risky behaviour for a long

11                   period of time, all things relative.

12                             When comparing the circumstances of this

13                   case to those in Schwarz, another significant

14                   factor is that in that case, the Crown put before

15                   the Court evidence showing that the credibility

16                   of one of the investigators, who have been a

17                   critical witness for the Crown, was very much an

18                   issue.  That officer had falsified notes in an

19                   unrelated investigation and had committed various

20                   policy violations.  His credibility would have

21                   been challenged had the matter gone to trial.

22                   That is a very unusual and very problematic

23                   situation that the Crown in that case would have

24                   faced if it had gone to trial.  I cannot think of

25                   a case that I ever heard in my experience as a

26                   judge, or as a lawyer, where that particular fact

27                   was put before a sentencing Court; that is, that


 

1                    a key police witness presented with that serious

2                    a credibility problem right from the start.

3                             The Crown in Schwarz obviously recognized

4                    this, because the Reasons For Sentence state that

5                    the Crown said that a sentence of four years

6                    would have been fit but for that weakness in the

7                    Crown's case.  That is mentioned at paragraph 33

8                    of the decision.

9                             Here, I accept that there were triable

10                   issues.  There usually are triable issues in

11                   these types of cases.  A number of technical

12                   defences can be raised in impaired driving cases.

13                   The admissibility of Breathalyzer results can be

14                   challenged through a number of means.  But still

15                   there were passengers in the vehicle who could

16                   have provided direct evidence about Mr. Moore's

17                   drinking and his erratic driving pattern.

18                             I am not dismissing the fact that Mr. Moore

19                   did give up his right to put the Crown to the

20                   proof of its case.  I simply note that the

21                   difficulties that the Crown was facing in the

22                   Schwarz case were far more significant and far

23                   from routine.  It seems to me that the issues

24                   that the Crown might have faced in this case, had

25                   it gone to trial, were, as Chief Justice Fraser

26                   put it in Gibson, "problems of a general nature

27                   that would be often engaged in these types of


 

1                    cases."

2                             For that reason, I find the Schwarz decision

3                    entirely distinguishable.  And as well, although

4                    it is a decision from a very experienced judge,

5                    it remains a trial decision and carries less

6                    persuasive weight than do decisions from the

7                    Court of Appeal or from the Supreme Court of

8                    Canada in Lacasse.

9                             Other cases referred to, such as R v

10                   Stimson, 2011 ABCA 59, and R v Cameron, 2016 SKQB

11                   83, also did not involve an extended pattern of

12                   risky driving.  The Court of Appeal made it clear

13                   in Gibson that the Stimson decision did not stand

14                   for the proposition that the range for impaired

15                   driving causing death cases was two to four years

16                   in Alberta.  It commented that the circumstances

17                   in that case involved a momentary loss of control

18                   by the accused on an unfamiliar road after she

19                   had been asked to take the wheel from the driver

20                   who had become tired.  Those circumstances bear

21                   no resemblance to what Mr. Moore did.

22                             Finally, I want to say a few words about R v

23                   Kayotuk, 2016 NWTSC 59, because it is a recent

24                   decision of this Court.  The sentence in that

25                   case was three-and-a-half years.  The accused had

26                   past convictions for drinking and driving, and

27                   his blood alcohol level was much higher than


 

1                    Mr. Moore's was.  But as was the case in Schwarz,

2                    there is no indication that his pattern of

3                    erratic and dangerous driving was as prolonged as

4                    was the case here.  And very significantly,

5                    Kayotuk was a case where the judge was presented

6                    with a joint submission as to range.  The

7                    sentencing judge followed it, but said at

8                    paragraph 15 of the decision, that he was

9                    following it "somewhat reluctantly."

10                             One of the consequences of the current state

11                   of the law about joint submissions, which I will

12                   get to in a moment, is that the precedential

13                   value of a case where a judge has followed a

14                   joint submission is very limited, unless of

15                   course the judge says that he or she agrees that

16                   the joint submission is a fit sentence.  And this

17                   often happens.  We have had numerous cases before

18                   this Court in the recent past, including a number

19                   of sentencings on major drug cases, where joint

20                   submissions were presented to the Court, and the

21                   Court accepted them without question.

22                             But when a joint submission is followed

23                   reluctantly, it does not represent an endorsement

24                   by the Court of the fitness of what is being

25                   proposed.  For those reasons, I do not find that

26                   the outcome in the Kayotuk case is of any

27                   assistance in supporting the joint submission


 

1                    that is being presented here.

2                             I generally agree with counsel in their

3                    identification of the aggravating and mitigating

4                    factors that are present in this case, but I do

5                    not share their view as to the weight that ought

6                    to be attached to those factors.  Where I agree

7                    completely with counsel is that the most

8                    mitigating factor is by far the guilty plea.  It

9                    has provided certainty of outcome.  It has

10                   avoided the need for witnesses to relive these

11                   terrible events and have to testify about what

12                   happened.  It has saved the time and resources

13                   needed to run a preliminary hearing and a trial.

14                   And avoiding that is important because both

15                   levels of court are under pressure, and the

16                   ability to use resources for other cases is an

17                   important factor.  And, finally, the guilty plea

18                   is an indication of remorse.  And I want to make

19                   clear that I accept Mr. Moore is sorry for what

20                   happened.

21                             Mr. Moore's personal circumstances as an

22                   aboriginal offender must also be taken into

23                   account, and I accept that they reduce his

24                   blameworthiness to a point, but only to a point.

25                   As I have said, Mr. Moore's circumstances compare

26                   favourably to those of many aboriginal offenders

27                   who come before the Court.


 

1                             As far as aggravating factors, the most

2                    significant one is something I have already

3                    alluded to, the persistent pattern of reckless

4                    driving, despite the protests of the passengers,

5                    and despite the near collision with the oncoming

6                    vehicle before the fatal crash.  Defence counsel

7                    argued during submissions that what happened

8                    after the passengers asked Mr. Moore to slow down

9                    was that he stopped at the Yellowknife River.

10                   With the greatest of respect, that is not what

11                   the agreed facts say.  There is no link in the

12                   agreed facts between the passengers asking

13                   Mr. Moore to slow down and the vehicle stopping

14                   at the Yellowknife River.  And even if there was,

15                   the fact is that after that stop, when they got

16                   going again after consuming more liquor,

17                   Mr. Moore again drove way too fast, and he

18                   continued to drive too fast, even after having

19                   gone over the centre line and nearly having a

20                   collision with another vehicle.  I find that

21                   highly aggravating, because it shows persistent

22                   recklessness and disregard for the safety of the

23                   others.

24                             It's also aggravating in my view that there

25                   were several passengers in the vehicle whose

26                   safety he endangered.  These were all potential

27                   victims.  It is not because of anything Mr. Moore


 

1                    did that Ms. Lafferty was the only one who died.

2                    The reality is that Mr. Moore could have killed

3                    them all.

4                             The record is aggravating to a far lesser

5                    degree than if it was a drinking and driving

6                    record, but it is not neutral, because it shows

7                    that Mr. Moore, despite being exposed to various

8                    sentencing options, supervision, despite the

9                    significant sentence he received for the

10                   aggravating assault, has not addressed his

11                   underlying issues.  He cannot be treated as

12                   though he is a youthful first offender.  Far from

13                   it.  In that respect, he is different from the

14                   offenders in some of the cases that I was

15                   referred to.

16                             To summarize, my main disagreement with the

17                   positions advanced by counsel about how all of

18                   these factors interplay boils down to this:

19                   Number 1, I view Mr. Moore's driving pattern as

20                   an aggravating factor of enormous significance

21                   given the persistence of his conduct and despite

22                   things that should have shaken some sense into

23                   it; Number 2, I do not attach as much weight as

24                   counsel seem to have to the fact that his blood

25                   alcohol readings were at the low end of what is

26                   illegal.

27                             Higher readings are an aggravating factor.


 

1                    Low readings are not mitigating.  Our Court of

2                    Appeal has stressed the importance of not

3                    confusing the absence of an aggravating factor

4                    with the presence of a mitigating factor in R v

5                    A.J.P.J., 2011 NWTCA 2, at paragraph 14.

6                             Drinking and driving is dangerous because

7                    alcohol impairs motor skills but also because it

8                    impairs judgment.  When they reach a certain

9                    level, high blood alcohol readings become

10                   statutorily aggravating, but as this case

11                   demonstrates, impairment caused by alcohol

12                   concentration in the blood that falls short of

13                   that threshold can still lead to disastrous

14                   consequences.  A case involving a lower level of

15                   impairment does not necessarily put a case at the

16                   low end of the scale in seriousness, and it does

17                   not necessarily justify a less severe sentence if

18                   other aggravating factors are present.

19                             Number 3, while I agree that aspects of

20                   Mr. Moore's circumstances as an aboriginal

21                   offender reduce his blameworthiness to a point, I

22                   would not have attached as much weight to that as

23                   counsel seem to have.

24                             I have already talked about the ranges that

25                   the Supreme Court of Canada referred is to in

26                   LacasseI would have placed this case neither

27                   in the least serious category nor in the most


 

1                    serious category.  I would have characterized it

2                    as falling in the middle of the range, and

3                    considering this, I would have thought that a

4                    sentence in the range of three-and-a-half to

5                    four years would have been fit under the

6                    circumstances.  To be sure, that would not be a

7                    lenient sentence by any stretch of the mind.  But

8                    in my view, such a sentence would have adequately

9                    reflected the seriousness of the offence and been

10                   in line with the stern comments of the Supreme

11                   Court of Canada in Lacasse.

12                             But I am not free in this case to simply

13                   impose a sentence that I think is fit, and this

14                   takes me to the law dealing with joint

15                   submissions.

16                             When a joint submission is presented at a

17                   sentencing hearing, it alters, in a profound way,

18                   the legal framework that governs the task of the

19                   sentencing judge.  It has long been the law that

20                   joint submissions are to be given serious

21                   consideration by sentencing judges, but since the

22                   Supreme Court of Canada decision in R v

23                   Anthony-Cook, 2016 SCR 204, the threshold that

24                   must be met before a judge can decline to follow

25                   a joint submission has been raised considerably.

26                             Lawyers and judges know this.  I want to

27                   make sure that others be clear on this as well.


 

1                    By "others" I mean Ms. Lafferty's family,

2                    Ms. Goulet's family, and Ms. Goulet herself,

3                    other passengers who were injured in this crash

4                    and the public in general.

5                             Sentencing is a highly individualized

6                    process.  It is anything but an exact science.

7                    For any crime committed by any offender, there is

8                    never only one appropriate sentence.  Typically

9                    there's a range of sentences that can be said to

10                   achieve the various sentencing objectives and

11                   conform with the principles of sentencing,

12                   primarily the fundamental principle that a

13                   sentence should always be proportionate to the

14                   degree of gravity of the offence and the degree

15                   of blameworthiness of the offender.

16                             There is much to consider, and ordinarily

17                   the sentencing judge considers all of those

18                   principles and the positions put forward by Crown

19                   and defence, and ultimately makes the call as to

20                   what a fit sentence is in that particular case.

21                   And in law, great deference is afforded to that

22                   determination.  Even the Court of Appeal is not

23                   permitted to vary a sentence simply because the

24                   Court of Appeal judges would have imposed a

25                   different one.

26                             But when a joint submission is presented,

27                   that legal framework is significantly altered.


 

1                    The framework that the Supreme Court has

2                    prescribed is that a sentencing judge must follow

3                    a joint submission unless to do so "would bring

4                    the administration of justice into disrepute or

5                    is otherwise not in the public interest."  That

6                    is at paragraph 29 of Anthony-Cook.

7                             This is a higher threshold than a simple

8                    fitness test, and it is a higher threshold than a

9                    "demonstrable unfitness test."  Both these tests

10                   were considered by the Court and rejected in

11                   Anthony-Cook at paragraphs 27, 28, and 46 to 48.

12                   As a result, a sentencing judge's discretion not

13                   to follow a joint submission is very, very

14                   limited.

15                             To illustrate in explaining just how high a

16                   threshold the test entails, the Supreme Court

17                   adopted language such as: (As read)

18                             A joint submission will be...contrary to the public interest if...it is so

19                             "markedly out of the line with the expectations of reasonable persons

20                             aware of the circumstances of the case that this would view it as a

21                             break down in the proper functioning of the criminal justice system."

22

23                   Or in deciding whether to follow a joint

24                   submission:  (As read)

25                             Trial judges should "avoid rendering a decision that causes an informed

26                             and reasonable public to lose confidence in the institution of the

27                             Courts."


 

1                             At paragraph 34 of the decision the Court

2                    said:  (As read)

3                             Rejection denotes a submission so unhinged from the circumstances of

4                             the offence and the offender, that its acceptance would lead reasonable

5                             and informed persons, aware of all the relevant circumstances, including

6                             the importance of promoting certainty in resolution discussions, to believe

7                             that the proper functioning of the justice system has broken down.

8

9              So in summary, the question today is not

10                   what sentence I would have imposed absent the

11                   joint submission.  The question I must answer is

12                   whether sentencing Mr. Moore to two-and-a-half

13                   years' imprisonment for this offence would bring

14                   the administration of justice into disrepute or

15                   otherwise not be in the public interest, whether

16                   it would be so unhinged from the circumstances of

17                   the case that it would make that reasonable and

18                   informed persons, aware of all the relevant

19                   circumstances and aware of the importance of

20                   promoting certainty in resolution discussions,

21                   believe that the proper functioning of the

22                   justice system has broken down.

23                             After having given the matter careful and

24                   very anxious consideration, I cannot say that

25                   this high threshold is met as far as the duration

26                   of the jail term.  As I've said, were my

27                   discretion not limited by this framework, I would


 

1                    have imposed a higher sentence than what is being

2                    proposed.  I would have done so because I think

3                    that for this type of offence, stern sentences

4                    are needed to send a consistent, firm message and

5                    reflect the devastating consequence and tragedy

6                    that result from drinking and driving across this

7                    country.

8                             The sentence being proposed places far more

9                    emphasis than I would on the mitigating factors

10                   in this case, and far less emphasis than I would

11                   have on the aggravating features of this case.

12                   But in the final analysis, I cannot say that what

13                   is being proposed is so lenient that I would be

14                   justified in not following it.  Because in law,

15                   my disagreement is not a sufficient reason to

16                   reject a joint submission.

17                             But as I am sure will be clear from

18                   everything I have said, I accept this joint

19                   submission with extreme reluctance.  The sentence

20                   imposed in this case should not be treated as

21                   having any precedential value whatsoever, and it

22                   should not be regarded as a reflection of what

23                   this Court sees as a fit sentence in

24                   circumstances when drinking and driving results

25                   in serious injury or death following actions such

26                   as the one described in this case.  In following

27                   this joint submission, I am simply following the


 

1                    binding direction of the Supreme Court of Canada

2                    and applying the extremely strict test that I am

3                    duty-bound to apply when considering a joint

4                    submission.

5                             However, with respect to the proposed length

6                    of the driving prohibition, I cannot impose a

7                    driving prohibition of only five years.  I do

8                    think that doing so would be contrary to the

9                    public interest.

10                             I do think that reasonable and informed

11                   members of the public, even knowing of the

12                   importance of resolution discussions and

13                   promoting certainty in outcome, would lose faith

14                   in the justice system if Mr. Moore was not

15                   prohibited from driving for a much longer period

16                   of time than what is being proposed.  I base this

17                   assessment on the length of driving prohibitions

18                   imposed in some of the cases that were filed, on

19                   the extent of risky driving that he engaged in,

20                   and on the fact that he did not even have a

21                   licence at the time of these events.

22                             The information about the lack of license,

23                   and, in fact, a lot of information about

24                   Mr. Moore's circumstances, comes from the

25                   presentence report.  I do not know if the Crown

26                   had the benefit of that information when it

27                   negotiated the joint submission, both from the


 

1                    point of view of the length of the jail term and

2                    from the point of view of the length of the

3                    driving prohibition.  But with the evidence

4                    available to me at this stage, I think that the

5                    length of driving prohibition that is being

6                    proposed is wholly inadequate and would cause

7                    reasonable, informed members of the public to

8                    lose confidence in the Courts, especially

9                    considering the extreme leniency of the jail term

10                   being proposed.

11                             I'm going to deal first with the ancillary

12                   orders that were included in the joint

13                   submission.  For the reasons that I have just

14                   given, I am going to depart from the joint

15                   submission as far as the driving prohibition is

16                   concerned, and it will be for a period of

17                   ten years in addition to the jail term that will

18                   be imposed today.  Driving is a licenced

19                   activity.  It's a privilege, not a right.  I find

20                   the circumstance of Mr. Moore's driving egregious

21                   and that to prohibit him from driving for only

22                   five years would bring the administration of

23                   justice into disrepute.

24                             The second issue that arose during

25                   submissions was the possibility of probation.

26                   Given the credit that Mr. Moore will receive for

27                   his remand time, the further jail term that will


 

1                    be imposed today will be in a range that would

2                    allow probation to be made part of the sentence.

3                    That may well have been helpful to him.  It would

4                    have permitted including a no-contact condition

5                    with the members of Ms. Lafferty's family, and I

6                    was told they wanted that.  But probation was not

7                    part of the joint submission.  It was raised by

8                    the Crown at the sentencing hearing, and it is

9                    not being agreed to by defence.

10                             The time for the Crown to think about this

11                   and ask for it, or discuss this possibility,

12                   would have been while the terms of the joint

13                   submissions were being discussed with defence.

14                   The Supreme Court has made it clear that joint

15                   submissions have to be approached on an as-is

16                   basis and specifically guarded against the idea,

17                   for example, of adding a probation order when it

18                   is not part of what is being proposed.  So,

19                   again, following those directions from the

20                   Supreme Court, I do not think it is open to me to

21                   include a probationary period as part of his

22                   sentence.

23                             The next ancillary order that is being

24                   sought is the DNA order.  This is a secondary

25                   designated offence, so the DNA order will issue.

26                             The next ancillary order that is being

27                   sought is a firearms prohibition order.  Counsel


 

1                    jointly suggest that it is mandatory pursuant to

2                    Section 109 of the Criminal Code.  That section

3                    says that a firearms prohibition order is

4                    mandatory for an offence when the offender is

5                    liable to ten years' imprisonment or more, which

6                    is the case here, for an offence in the

7                    commission of which violence against a person was

8                    used, threatened, or attempted.

9                             At the time of the hearing I asked counsel

10                   if they had any authority to support the

11                   proposition that this offence fits within that

12                   definition.  They were unable to refer me to any.

13                   Reviewing the cases that were filed at the

14                   hearing and other cases, I do see that in some,

15                   the Section 109 order was made.  It was, for

16                   example, made in KayotukIn other cases, there

17                   is no mention of a Section 109 order being made.

18                   In the cases where the order was made, there was

19                   no analysis on this topic.  It does not appear

20                   that this was ever raised before.

21                             I have looked into this issue, and I have

22                   been unable to find any cases that have examined

23                   this issue in the context of drinking and driving

24                   where bodily harm or death it caused.  There are

25                   a few cases that have examined the issue in the

26                   context of sexual offences.  There are cases

27                   going both ways, but the bulk of the authorities


 

1                    seem to have concluded that sexual assault is an

2                    inherently violent offence, and I agree with that

3                    analysis.  But it is not helpful in resolving the

4                    issue in the context of drinking and driving.

5                             I note that the Youth Criminal Justice Act

6                    defines the term "violent offence," in a very

7                    broad way.  It includes, among other things, an

8                    offence that has as one of its elements causing

9                    bodily harm.  It also includes offences where the

10                   safety of others is endangered.  So in that

11                   context, impaired causing death would clearly be

12                   included.  But the Criminal Code does not include

13                   any such definition.

14                             The Code does define "serious personal

15                   injury offence," and it defines it as including

16                   offences involving the use or attempted use of

17                   violence or conduct endangering or likely to

18                   endanger the life and safety of others.  The fact

19                   that in that context "conduct that endangers" is

20                   included specifically, in addition to the word

21                   "violence," seems to confirm that the concept of

22                   violence, on its own, does not include conduct

23                   that merely endangers safety.

24                             In the absence of a definition in the

25                   Criminal Code, whether in general or specifically

26                   applicable to Section 109, I am left with the

27                   ordinary meaning of the word.  The Oxford


 

1                    Dictionary defines "violence" as:

2                             Behaviour involving physical force intended to hurt, damage, or kill

3                             someone or something.

4                             The unlawful exercise of physical force or intimidation by the

5                             exhibition of such force.

6

7                             Violence implies an element of

8                    deliberateness of intention.  One of the features

9                    of drinking and driving offences that results in

10                   injury or death is, in a large majority of cases,

11                   that the driver never intended for anyone to get

12                   hurt or to be killed.  It is a crime of

13                   recklessness, of gross negligence, and we can

14                   attach many adjectives to it, but I do not think

15                   that it fits within the concept of use of

16                   violence referred to in Section 109 of the Code.

17                             As I have explained at length, the joint

18                   submission curtails my discretion considerably,

19                   but not to the point of going along with a

20                   position that I think is wrong in law.  I decline

21                   to make a firearms prohibition order because, in

22                   my view, Section 109 is not engaged in this case.

23                             The victim of crime surcharge is mandatory,

24                   so there will be one in the amount of $200 for

25                   each of the two counts.  The default time and the

26                   time to pay are statutorily provided for.  I will

27                   also credit Mr. Moore for the time that he has


 

1                    spent on remand on a ratio of roughly

2                    one-and-a-half days of credit for each he has

3                    spent on remand.  Again, there is clear direction

4                    from the Supreme Court of Canada that that should

5                    be the norm.

6                             Stand up, please, Mr. Moore.  Mr. Moore, I

7                    am going to follow the joint submission on

8                    Count 1.  But for the time that you spent on

9                    remand, the sentence would have been

10                   two-and-a-half years' imprisonment.  For the

11                   242 days you have spent on remand, I give you

12                   credit for 11-and-a-half months, so the time

13                   remaining to be served will be 18-and-a-half

14                   months.

15                             On Count 2, the sentence will be two years'

16                   imprisonment.  The one-and-a-half month credit

17                   for the remand time applies to that as well, so

18                   the time remaining to be served on that count

19                   12-and-a-half months, and that will be

20                   concurrent, which means served at the same time.

21                   You may sit down.

22                             There will also be, as I said, a driving

23                   prohibition of ten years plus 18-and-a-half

24                   months in accordance with Section 259(2)(a.1).

25                   Is there anything that I have overlooked from the

26                   Crown's point of view?

27            MR. GODFREY:           I don't believe so, Your


 

1                    Honour.  Thank you.

2            THE COURT:             Thank you.  Anything from the

3                    defence that I have overlooked?

4            MR. CLEMENTS:          No.

5            THE COURT:             Okay.  Thank you.  Mr. Moore,

6                    before we close court, there are a few things I

7                    want to tell you.  I hope you understand you are

8                    getting a huge break, huge, huge break today.  I

9                    believe you when you say you are sorry, but being

10                   sorry is not good enough.  It has to come with

11                   action.  You are 29 years old, and it is time you

12                   grew up.  You need to seriously work on your

13                   issues.  Keep going to AA while you are in jail,

14                   and keep going to AA when you get out of jail.

15                   While you are in jail, spend some time with the

16                   psychologist and make the most use possible of

17                   the resources that are there.

18                             You are very lucky.  You have the support of

19                   your mother, of Mr. Storr, and of others.  You

20                   cannot bring Karen Lafferty back.  You cannot

21                   undo what you have done.  But the least you can

22                   do is to work on yourself in a very serious

23                   long-term way.

24                             You can talk to other people about what you

25                   have done.  You can talk to other people about

26                   what happened.  How it has made you feel.  How it

27                   has hurt others.  The kind of harm that can never


 

1                    be undone.  That is something that you actually

2                    can do.  That is one way you might be able to

3                    start making amends.  Maybe you can prevent other

4                    people from doing what you did.  No one ever gets

5                    behind the wheel of a car thinking this is going

6                    to happen.  No one.  So if you are able to, you

7                    might want to try to be part of the solution and

8                    talk about this, even if it is very hard, and

9                    even if it does not put you in a very nice light.

10                             But you cannot just be sorry.  Sorry is not

11                   good enough this time.  So I hope you think

12                   carefully about that, and I hope although you are

13                   getting a lenient sentence today, I hope you do

14                   not look at it as having gotten away with

15                   something.  I hope you look at it as a chance to

16                   make real changes, because I hope to never have

17                   to see you in court again as an accused person.

18                   I hope no Court ever sees you in court again as

19                   an accused person.  But that is not up to me.  It

20                   is completely up to you.

21                             So I hope you were listening.  I hope you

22                   were listening when those victim impact

23                   statements were read last week and today, because

24                   that is the reality of what is happening because

25                   of what you have done.  So I hope that you do

26                   something about your issues.

27                             Close court.


 

1      -----------------------------------------------------

2

3      CERTIFICATE OF TRANSCRIPT

4

5                    I, the undersigned, hereby certify that the

6            foregoing pages are a complete and accurate

7            transcript of the proceedings taken down by me in

8            shorthand and transcribed from my shorthand notes

9            to the best of my skill and ability.

10                   Dated at the City of Edmonton, Province of

11                   Alberta, this 31st day of January, 2018.

12

13                             Certified Pursuant to Rule 723

14                             Of the Rules of Court

15

16

17

18                             __________________________

19                                                          Karilee Mankow

20                                                          Court Reporter

21

22

23

24

25

26

27

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.