R. v. Blakeley

R. v. Blakeley Collection Decisions of the Court of Appeal Date 1998-07-17 Docket numbers C29378 Judges Labrosse, Jean-Marc; Abella, Rosalie Silberman; Moldaver, Michael James Subject Criminal Decision Content DATE: 19980717 DOCKET: C29378 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. STEPHEN BLAKELEY (Respondent) BEFORE: LABROSSE, ABELLA and MOLDAVER JJ.A. COUNSEL: Jennifer Woolcombe, for the appellant Peter Napier, for the respondent HEARD: July 10, 1998 ENDORSEMENT [1] The respondent pleaded guilty to charges of impaired driving causing death and impaired driving causing bodily harm. He was sentenced to a conditional sentence of two years less a day and a three-year driving prohibition was imposed. The Crown seeks leave to appeal. [2] The charges arose as a result of a single car accident in which the respondent's four-year-old son was killed and his two- year-old son was injured and left with permanent scarring. [3] The respondent is thirty-nine years old, separated from his wife and employed as a molecular biologist. [4] There were mitigating circumstances which were reviewed by the trial judge. The respondent is a first offender. He pleaded guilty and demonstrated remorse for the death of his son. Twenty- four letters were filed on sentencing to speak to his remorse, his good character and his love for his children. [5] These mitigating circumstances were far outweighed by the aggravating circumstances. The respondent has a lengthy history of alcohol abuse for which he refused counselling and when he did take counselling, it proved to be largely ineffective. His drinking problem was such a concern to his wife, the mother of their two children, that in the separation agreement he was obliged to undertake that he would not drink before or during access visits with the children. [6] On September 27, 1997, the respondent exercised his first overnight access with the children. During the day, he concealed his drinking. While driving home with the children after visiting friends, he lost control of the vehicle and smashed into a rock face. There was a bottle of liquor in the vehicle which he attempted to conceal immediately after the accident. He had a blood alcohol reading of 304, more than three and one-half times the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. [7] The tragic consequences of the accident have had a devastating effect on the mother of the children. [8] At the time of sentencing the prognosis for recovery from alcohol dependency was generally disappointing. [9] The trial judge saw this case as a unique case. We disagree. This is not one of those rare cases that this court was referring to in R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.). There was nothing unusual or exceptional about this case that would warrant the imposition of a conditional sentence. The trial judge gave inadequate weight to the principle of general deterrence, which is of paramount importance in this type of case: (R. v. McVeigh) (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). [10] The trial judge also over-emphasized the absence of a pattern of bad driving. This was not a mitigating factor. A person driving with a blood alcohol level of 304 represents an unconscionable risk. At best, it represented the absence of what would otherwise have been an aggravating factor. [11] The inadequate weight to the principle of general deterrence and the over-emphasis on the absence of bad driving are both errors of principle. The respondent's entire conduct showed a profound lack of responsibility to his children and a complete indifference to the criminal nature of drinking and driving. A conditional sentence was manifestly inappropriate and demonstrably unfit in the circumstances of this case. [12] Fresh evidence was adduced which reveals that the respondent has not consumed alcohol since the accident. He has received addiction and psychiatric counselling. He has complied with the terms of his conditional sentence. While his efforts toward rehabilitation are positive, these recent events do not change the inappropriate sentence that was imposed. [13] The respondent was sentenced to two years less a day. While the sentence was lenient we are not persuaded at this time to interfere with the length of the sentence. He has served approximately five months of the conditional sentence. Taking that into consideration, a fit sentence is one of nineteen months together with probation for a period of two years on the statutory terms together with the conditions that he refrain from the consumption of alcohol and continue with counselling as directed by his probation officer. [14] Leave to appeal is granted and the appeal is allowed. The conditional sentence is set aside and a sentence of nineteen months' incarceration is imposed together with probation for a period of two years. The period of driving prohibition remains unchanged.