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SUPREME COURT OF PRINCE EDWARD ISLAND
Citation: R. v. Moase 2012 PESC 36
Date: 20121204
Docket: S1-GC-965
Registry: Charlottetown
Her Majesty the Queen
-againstClarence Arnold Moase
Before: The Honourable Justice John K. Mitchell
Appearances:
John McMillan, Q.C. for the Crown
Michael Drake and Tom Keeler for the Defence
Place and Dates of Hearing
Charlottetown, Prince Edward Island
November 30, 2012
Place and Date of Oral Decision
Charlottetown, Prince Edward Island
December 4, 2012
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Sentence for impaired driving causing death - s. 253(1)(b) and 255(3.1) - Accused
with four prior convictions contrary to s. 253 - blood alcohol concentration 220 six years imprisonment - lifetime driving prohibition.
CASES CITED: R. v. Morine, 2011 NSSC 46; R. v. Junkert, 2010 ONCA 549; R. v.
Rammage, 2010 ONCA 488; R. v. Young, 2010 CarswellOnt 5351; R. v. Drake,
2008 CarswellOnt 848; R. v. Ruizfuentes, 2010 MBCA 90; R. v. John Alvin Gallant,
2008 PESCAD 01; R. v. James Calvin McFadden, 2003 PESCTD 67; R. v. Bernshaw,
[1995] 1 S.C.R. 254 (SCC); R. v. Coupal, 2010 ABQB 229; R. v. Kummer, 2011
ONCA 39; R. v. Dingwell, 2012 PESC 13; R. v. Morris, 2011 ONSC 5206; Desjarlais
2012 NWTTC 2
Mitchell J.:
[1]
Mr. Moase has pled guilty to an offence under s. 253(1)(b) and 255(3.1) of the
Criminal Code. That is, that on the 14th day of July, 2012, having consumed alcohol
in such a quantity that the concentration thereof exceeded 80 milligrams percent, he
did, while operating a motor vehicle, cause an accident resulting in the death of
Elizabeth Sovis. The maximum penalty for this offence is life imprisonment. It is
indeed a very serious offence.
Facts
[2]
Elizabeth Sovis and her husband, Edmund Aunger, were on a cycling vacation
in the Maritimes. They left their home in Alberta and flew to Moncton, New
Brunswick, and cycled in that area for a few days. July 14th they arrived in Prince
Edward Island. They cycled on the Confederation Trail from Borden to the Rennies
Road. The Bed & Breakfast with which they had a reservation was some five
kilometers off the trail. They proceeded down the Rennies Road. Mr. Aunger was
ahead. Ms. Sovis was wearing a bicycle helmet and a reflective yellow safety vest. It
was daylight, between 5:30 and 6:00 p.m. The asphalt on the Rennies Road was in
excellent condition, bare and dry. There was no paved shoulder on the Rennies
Road. The speed limit was 80 km, and the temperature was a muggy 24 degrees
Celsius.
[3]
Clarence Arnold Moase was driving on a long straight section of the road
when he struck Ms. Sovis. Traffic was fairly heavy. There was nothing obstructing
his view. He did not brake, steer away nor accelerate prior to the collision. He
continued about half a kilometer down the road before turning around and returning.
Mr. Aunger heard the collision. He returned as well. There, he experienced the
horror of watching his beloved wife of 34 years die before his very eyes.
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[4]
The RCMP found a half empty 1.14 liter bottle of vodka in the Moase vehicle.
They observed that Moase was unsteady on his feet, had the smell of alcohol on his
breath, red eyes, and his speech was slurred. At 7:32 (about 1.5 to 2 hours after the
collision), he registered a blood alcohol concentration of 220 milligrams percent. At
7:53, he again registered 220 milligrams percent.
Offender
[5]
Clarence Arnold Moase is 49 years of age. He is self-employed as owner of
Moase Plumbing & Heating, a business which he took over from his father in 1992.
He has a wife and three children, twins aged 21 and a 16-year old. He has a
reasonably positive pre-sentence report. He is described as “a family oriented
individual and a good provider”. He has always been gainfully employed and was an
active supporter of community activities. He has, however, a dark side. His wife,
who no doubt loves him very much, describes him as a good father “when he is
sober”. He appears to have been struggling with alcohol for years. In fact, it is rather
revealing that the pre-sentence report states at page 5 “sources contacted for the
purpose of the Report did not verbalize significant surprise in relation to Mr. Moase’s
current legal situation”. It seems the community was alive to Moase’s propensity for
drinking and driving. It is not a crime to be an alcoholic. It is a crime, however, –
and a serious crime – to operate a motor vehicle while impaired by alcohol. This is a
fact Moase knows only too well. He was convicted August 20, 1993 of an offence
contrary to s. 253(a) (impaired driving) and sentenced to three days in jail. Two
years later he was convicted to an offence contrary to s. 253(b) of the Criminal Code
(over .08) and served 20 days in jail. In 2006, he was convicted for a third time of an
offence under s. 253 (253(b)) (over. 08) and received 10 days in jail as a sentence.
His fourth drinking and driving conviction was 2008, again an offence under s. 253(b)
(over. 08) for which he served 70 days in jail and was fined $1,500.
[6]
Moase has, I’m afraid, done very little on his own to address his alcohol
addiction. In 2007, after his third conviction, he completed a self referral to East
Prince Addiction Services, but only because this was a requirement of Highway Safety
for reinstatement of his license/ interlock program eligibility. Therefore, for a period
of approximately 20 days he attended and completed an outpatient program. He
started but did not complete the recommended follow-up program.
[7]
In August 2008, following his fourth conviction, he attended and successfully
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completed (once again) the inpatient program. This time a 14-day program, but once
again, it was because it was a requirement of Highway Safety for reinstatement of his
license and interlock program eligibility. This time he did the recommended followup program for a year, from September 2008 to September 2009. Other than that, he
appears to have done nothing prior to July 14, 2012.
[8]
During the time he’s been in jail however, Moase has completed the Impaired
Driving Program offered to inmates incarcerated on impaired driving charges and, as
well, he is participating in the Correctional Substance Abuse Program and attending
the in-center Alcoholics Anonymous meetings and Church/Fellowship program.
Impact on the Victim and Community
[9]
There are two victim impact statements filed. They are articulate and very
moving in describing the impact on the family, and yet, at the same time, they show
compassion for Moase. Elizabeth Sovis was the mother of three. Her son, Edmund
Stephen Aunger, wrote that his family was close. He would see his mother
everyday, as she lived next door. He feels sad everyday. He lost his mother and his
children lost their grandmother.
[10] Mr. Aunger Sr. lost his wife of 34 years. She was the love of his life. They met
in grade 7, and, as he wrote, “fell madly in love”. He has had the horrific experience
of watching her die on the side of the road 3,000 miles from home. He partially
blames himself because he always rode behind her but, on this occasion, he was
ahead of her as he seemed to be more confident as to the location of the bed and
breakfast to which they were going. He, of course, bears absolutely no fault.
[11] The impact on Mr. Aunger Sr. and his family is huge, and his victim impact
statement shows their struggle to make sense out of the senseless tragedy.
[12] The number of deaths and serious injury occasioned by those who consume
alcohol and drive automobiles throughout this country is staggering. This is a crime
that adversely affects the whole of our society.
Crown and Defence Positions
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[13] The Crown takes the position this is a very serious offence and that sentences
for this type of offence are on the rise across the country. The Crown’s position is that
the Court should impose a sentence of eight years with credit for time served at a
ratio of one to one, a lifetime driving prohibition and a section 487.051 DNA order.
[14] The Defence emphasizes the fact of an early guilty plea and acceptance of
responsibility and genuine remorse. The Defence takes the position that an
appropriate sentence is in the range of three to four years, with credit for time served
at one and a half to one, a ten-year driving prohibition and no DNA order.
Principles of Sentencing
[15] The purpose and principles of sentencing are set out in s. 718 to 718.2 of the
Criminal Code. The fundamental purpose of sentencing is to arrive at a sentence that
contributes to respect for the law and the maintenance of a just, peaceful and safe
society by imposing just sanctions that have one or more of the objectives as set out
in s. 718, which I shall paraphrase as follows: denunciation, deterrence, separation of
offenders from society where necessary, rehabilitation, reparations for harm done,
promotion of a sense of responsibility and acknowledgment of harm. In other words,
a just sentence.
[16] The fundamental principle is that the sentence must be proportionate to the
gravity of the offence and the degree of responsibility (s.718.1). This is often called
moral blameworthiness (R. v. Morine, 2011 NSSC 46).
[17] While all sentences must be individually crafted, taking into account all the
circumstances of the offence and the offender, s. 718.2 (b) dictates that a just
sentence should be similar to sentences imposed on similar offenders for similar
offences committed in similar circumstances. While the circumstances of the
offence are never identical, it is helpful to canvas case law in this and other
jurisdictions.
[18] In R. v. Morine, supra, the Nova Scotia Supreme Court concluded that, in
Nova Scotia, the appropriate range for impaired driving causing death was three to
five years. The Nova Scotia Supreme Court imposed a sentence of five years for
impaired driving causing death in that case.
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[19] The Ontario Court of Appeal in R. v. Junkert, 2010 ONCA 549, upheld a
sentence of five years where the accused, whose blood alcohol level was 130
milligrams percent, drove his car into a jogger, killing her. The Court stated at para.
49:
I recognize that sentences of four to five years for first
offenders may be at the high end of sentences imposed by
the courts to this point in time. That said, I do not think
that a sentence of five years for this offence is unfit. Nor is
it a significant departure from sentences previously
imposed so as to warrant interference by this court. W hile
the sentence in this case may be seen as a slight movement
upwards, I am satisfied that the increase, if there is one, is
incremental and that it quite properly continues the very
gradual trend that has taken place over recent years.
[20] In R. v. Rammage, 2010 ONCA 488, the Ontario Court of Appeal upheld a
four-year sentence imposed on Rammage whose blood alcohol level was 229
milligrams percent. In R. v. Young, 2010 CarswellOnt 5351, the Ontario Superior
Court of Justice dealt with a 48-year old man with a previous conviction for impaired
driving, who pled guilty to and was convicted on charges of impaired driving and
driving with a blood alcohol concentration greater than 80 milligrams percent causing
one death, two counts of impaired driving and driving with a blood alcohol
concentration greater than 80 milligrams percent causing bodily harm. His blood
alcohol level, according to the intoxilyzer samples, showed blood alcohol
concentrations of 180 milligrams percent and 189 milligrams percent. He was
sentenced to a four-year term of imprisonment after a one-year credit for time in pretrial custody. In R. v. Drake, 2008 CarswellOnt 848, the Ontario Court of Justice was
dealing with an accused individual who drank 12 beers, and drove the vehicle that
caused an accident that killed his best friend. He pled guilty to impaired driving
causing death and driving while disqualified. He was sentenced to five years’
imprisonment. He had a long criminal record of driving while impaired. In fact, he
had six previous convictions. In R. v. Ruizfuentes, 2010 MBCA 90, the Manitoba
Court of Appeal sentenced the accused to 4 ½ years’ imprisonment, together with a
15-year driving prohibition for one count of impaired driving causing death. The
Manitoba Court of Appeal reviewed the case law and stated at para. 22:
As a result of the recent amendments and the review of the
case law, I conclude that the regular range of sentences for
offenders who commit the crime of impaired driving causing
death and who have no prior convictions for drinking and
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driving or serious personal injury offences should be increased
to a range of two to five years. For those who are second or
subsequent offenders, it moves upwards to a range of four to
eight years. As for driving prohibitions, the cases show that for
first offenders, the range is three to ten years and for second or
subsequent offenders, from ten years to a lifetime ban.
...
[21] Counsel cites only two cases from Prince Edward Island. They are R. v. John
Alvin Gallant, 2008 PESCAD 01 and R. v. James Calvin McFadden, 2003 PESCTD 67.
In Gallant, the reading was 100 milligrams percent, and the Court of Appeal upheld
an 18-month conditional sentence order. Conditional sentences are no longer
available for this offence, and in the circumstances of this case I would not consider
one even if they were available. Mr. Gallant had no record.
[22] McFadden involved a 25-year old with no previous record whose blood
alcohol concentration was 193 to 223 milligrams percent. He was sentenced to one
year in jail.
Mitigating Factors
[23] To his credit, Moase was immediately cooperative with the police. He waived
his right to counsel and admitted driving almost immediately. I accept, as well, his
expressions of remorse made through the pre-sentence report, his counsel, and his
own words in court, as being genuine. The biggest mitigating factor is the fact that
Moase entered a guilty plea at the earliest opportunity. Not only does this save the
time and expense of court proceedings and the pain and suffering of the victim’s
family to have to come to court and testify, but it constitutes a concrete acceptance of
responsibility for his wrongdoing. Moase was placed in jail July 14th, taken before a
justice of the peace July 15th and has been in jail on remand since then. During the
time he has been in jail, he has completed the Impaired Driving Program offered to
those inmates incarcerated on impaired driving offences. He is, as well, participating
in the Correctional Substance Abuse Program and attending the in-center Alcoholics
Anonymous meetings and Church/Fellowship program. The pre-sentence report
indicates that Moase takes these programs seriously and “appears to be gaining insight
into his alcohol issues”. While his active participation in these programs is
undoubtedly a mitigating factor, it is largely set off by the aggravating factor that
Moase has had, what the author of the pre-sentence report describes as, “a minimal
history of involvement with Addiction Services” prior to July 14, 2012. His
involvement seems to have been motivated more to ensure his eligibility for
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reinstatement of his driver’s license/interlock program than an genuine desire to face
his demons. The fact that he appears to be gaining insight into his alcohol issue is
mitigating but also set off by the fact that it took four prior impaired driving
convictions and the death of Elizabeth Sovis to open his eyes.
[24] Moase has a relatively good pre-sentence report. He also has the support of his
family, who themselves have been victims of his lengthy struggle with alcohol. His
wife advised the author of the pre-sentence report that her family was significantly
impacted and that the first few weeks after the offence were “difficult” and “horrible”.
No doubt this is still a very difficult time for them. Nonetheless, his family is standing
behind him, and that bodes well for his rehabilitation. He is in a stable 27-year
marriage. He ran a successful business. He was involved in his community, having
been described as “an avid supporter of community activities and fundraising events”.
To paraphrase Moase’s wife, I conclude that he is a good person when he is sober; a
good person who has, unfortunately, committed a terrible crime with devastating
consequences.
Aggravating Circumstances
[25] There are, in my view, three aggravating circumstances. The first is his blood
alcohol concentration. Section 255.1 makes a blood alcohol concentration in excess
of 160 milligrams percent an aggravating factor. Moase had a blood alcohol
concentration of 220 milligrams percent, which, as Mr. McMillan for the Crown
pointed out, is approaching three times the legal limit of 80 milligrams percent.
[26] The second aggravating factor is the circumstances of the collision. The
driving conditions were about as good as it gets in this Province. The road was
straight, there was nothing obstructing his view, it was daylight, there were clouds
covering the sun which was off to the side, the pavement was in good condition, Ms.
Sovis wore a reflective vest so as to be easily seen and all the other traffic had no
difficulty going around her safely. Yet, with these near perfect conditions Moase made
no effort to brake nor to steer so as to avoid striking Ms. Sovis. It is almost
inconceivable that this happened.
[27] The most serious aggravating factor, however, is Moase’s prior four convictions.
His being caught by the police four times, brought to court four times, sentenced to
jail four times, and having had his license suspended four times did not curb his
propensity to drink and to drive.
Analysis
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[28] A sentence must be proportionate to the gravity of the offence and the degree
of responsibility of the offender. The offence carries with it a maximum sentence of
life imprisonment. This offence resulted in the tragic death of a healthy active woman.
That speaks as to the gravity of this offence.
[29] Moase has four prior convictions for drinking and driving. He spent time in jail
ranging from three days for the first, to 70 days for the fourth. He did take an
outpatient addictions program and follow up following convictions three and four.
Even if taking those program was motivated by a desire to get behind the wheel again,
Moase must have at least heard about the nature of the disease of alcoholism and the
danger of combining alcohol with driving a motor vehicle. Moase was very well
aware that he had an alcohol issue and that driving while intoxicated is a crime and,
most importantly, that when he drank, he had a propensity to drive.
[30] Alcoholism is a disease, not a crime. However, Moase, in the exercise of his
own free will, knowing his own propensity to drive while under the influence of
alcohol, chose to consume alcohol, chose to have it in his vehicle in the middle of the
day, and chose to drive. His disease is absolutely no excuse. His degree of
responsibility and his degree of moral blameworthiness is very high.
[31] In R. v. Bernshaw, [1995] 1 S.C.R. 254 (S.C.C.), Justice Cory observed that
drunk driving is the crime that causes the most significant social loss to our country
through death and severe injury. It leaves, in his words, “a terrible trail of death,
injury, heartbreak and destruction” (para 16). While there appears to be some
statistical evidence in the case law to the effect that the incidence of impaired driving
has diminished in the 20 years or so prior to 2008, (R. v. Coupal, 2010 ABQB 229
paras. 16 to 20), it is a crime which is still far too prevalent. Attitudes may be
changing but not fast enough. Perhaps that is because not all those convicted of
impaired driving fit our pre-conceived notion of what a criminal is or looks like.
Perhaps because we see some of them as our own next door neighbours who have
simply made a mistake; the well-respected businessman/woman who literally has one
drink too many at a reception and drives home with a blood alcohol concentration just
over 80 milligrams percent. However, make no mistake, every person who drives a
motor vehicle while impaired turns a motor vehicle into a potential killing machine.
[32] Thus, the overriding sentencing principle in the case of impaired driving
causing death must be denunciation and general deterrence. (R. v. Junkert, supra,
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para 42, R. v. Ruizfuentes, supra, at para 33, and R. v. Coupal, supra, at para 11).
[33] The Manitoba Court of Appeal puts the sentencing range for impaired causing
death at two to five years for those with no prior record and four to eight years for
those with prior records (R. v. Ruizfuentes, supra). The Nova Scotia Supreme Court,
after reviewing the case law in R. v. Morine, supra, concludes that “the appropriate
range of sentence for impaired driving causing death in these circumstances is three to
five years”. In the circumstances of that case, the accused had no record. In Ontario,
the sentence for impaired causing death is increasing incrementally (R. v. Kummer,
2011 ONCA 39 at para 15 and Junkert at para 49). The Ontario Court of Appeal
upheld sentences of four years where the accused, with no prior record and a blood
alcohol concentration of 229 milligrams percent, killed one person and injured a
second person (R. v. Rammage, supra) and five years where the accused’s actions
killed a young wife and mother of four (R. v. Junkert). In Junkert case, the accused’s
blood alcohol concentration was 130 milligrams percent and there was no indication
of a prior record.
[34] The Prince Edward Island cases are of little help. Gallant case involved a
driver with no prior related record whose reading was 100. While that is over 80
milligrams percent, it is a relatively low reading. The facts of the case are significantly
different as well. The driver came over a hill at about five minutes after seven p.m. in
late March, and there was a jogger who the accused said was in the middle of the
road. Thus, the circumstances of the case differ markedly. R. v. McFadden, supra, is
nine years old, and in any event, it appears to me that McFadden and Gallant are out
of step with the sentences imposed across Canada as sentences have increased in
recent years.
[35] In this case, then, given the circumstances of this incident, the high reading, the
four prior convictions and the circumstances of Clarence Arnold Moase, and sentences
imposed for similar offences, I believe an appropriate sentence is six years
incarceration.
Credit for Time Served in Pre-Trial Custody
[36] Moase has been in jail since the evening of July 14, 2012. That totals 143
days. The Crown points out that the amendments to s. 719(3) and 719(3.1) of the
Criminal Code create a presumption that the credit for time served should be on a one
to one basis only. The Crown takes no position on whether the accused should
receive a higher credit.
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[37] The Defence takes the position that the credit should be 1.5 to 1. The Defence
points out that Moase could have, but did not, apply for bail and that he has been a
model prisoner.
[38] I dealt with this issue in R. v. Dingwell, 2012 PESC 13, paras. 30 to 36. Prior to
amendment of s. 719(3) and the addition of 719(3.1), courts in this Province routinely
granted credit of 1.5 to 1 because of the fact that time spent in pre-trial custody does
not qualify for earned remission and parole eligibility. For example, a person serving
a three-month sentence may, by virtue of statutory remission, be released after having
served two-thirds of his sentence. Thus, 60 days pre-trial may be considered to be the
equivalent of a 90-day sentence. Some courts granted a ratio of 2:1 to reflect not only
loss of statutory remission but the fact that inmates in pre-trial custody do not have full
access to programs that other inmates do.
[39] In R. v. Morris, 2011 ONSC 5206, the court found that loss of remission by
itself cannot justify an increased credit as every person in pre-trial custody suffers a
loss of remission. That court found to grant enhanced credit because of loss of
remission or anything else which is normally associated with pre-trial custody would
be to render the amendments to s. 719(3) meaningless.
[40] There must be something other than the usual circumstances experienced by all
inmates in pre-trial custody to justify an increase of the ratio. In Desjarlais 2012
NWTTC 2, Gorin, PCJ, found that the circumstances do not have to be exceptional.
He looked at the fact that statutory remission was earned, and therefore not all inmates
would receive the benefit of statutory remission. He concluded therefore that as he
had affidavit evidence from the case manager within the correctional centre that
housed the inmate to the effect that had the inmate been sentenced she would have
earned remission of one-third to be sufficient circumstances to justify increasing the
credit ratio.
[41] I have nothing before me from the Provincial Correctional Center. What I do
have, however, is the following paragraph from page 4 of the pre-sentence report.
Arnold Moase has been on remand at the Provincial Correctional
Center, Charlottetown, PE since July 15, 2012. He has not had any
issues or incident reports since his admission. He has completed
an Impaired Driving Program, which is offered to offenders that
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have DUI/DW I charges. The program was comprised of eight
sessions and was offered between Oct 23 and Nov 07, 2012. Paul
Currie, program facilitator, informed that Mr. Moase was an active
participant and appeared to be impacted by the program. Mr.
Moase is currently participating in the CSAP (Correctional
Substance Abuse Program). The program began October 30 and
will finish November 22, 2012. Paul Currie informed that Mr.
Moase is taking the program seriously and appears to be gaining
insight into his alcohol issues. Mr. Moase is also attending the incenter Alcoholics Anonymous meetings and the Church/Fellowship
program on a regular basis.
[42] The fact that Moase did not seek bail, which would most probably have been
granted, and instead chose to remain in jail to begin his first steps towards
rehabilitation is something other than “the usual circumstances”, in my view. His
steps while in jail towards rehabilitation were largely set off by the aggravating factor
of his minimal history with Addiction Services prior to July 14, when I was calculating
an appropriate sentence. However, I believe I can take into account the efforts he’s
made while in custody. He was not simply sitting around passing time. He was
actively working towards his rehabilitation. It would be unfair then, in light of his
efforts towards rehabilitation, to limit him to 1:1 credit. Moase will have credit for
time served pre-trial at approximately 1.5 to 1 for a total of 214 days. His sentence
will be six years minus 214 days.
Ancillary Orders
DNA Order
[43] The Crown seeks an order authorizing the taking of bodily substances for
forensic DNA analysis under s. 487.051 of the Code. The Crown’s position is that this
is a discretionary order that may be made where the court is satisfied that the order is
in the best interest of the administration of justice. In deciding this issue, the court
must consider the person’s criminal record, the nature of the offence, the
circumstances surrounding its commission and the impact such an order would have
on the privacy and security of the individual.
[44] In this case, I would exercise my discretion and decline to order the taking of
bodily substances for forensic DNA analysis. Moase is an alcoholic. While he has
four previous convictions for impaired driving, he has no other criminal history. I do
not believe it is in the best interests of the administration of justice to have a sample of
Moase’s DNA on a national databank.
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Driving Prohibition
[45] Driving is a privilege, not a right. Moase lost his driving privileges for a period
of time following each of his four prior convictions. The Crown seeks a lifetime
driving prohibition. The defence seeks a ten-year driving prohibition and states that a
lifetime ban will effectively diminish his chances at rehabilitation as he will be unable
to continue his business without his driver’s license. I am unmoved by the defence
position. Moase is a plumber who can find work without a driver’s license, or he can
run his business by hiring an employee or employees with a driver’s license. In any
event, Moase has had his license revoked four times and had it returned four times. It
will not be returned a fifth time. Under s. 259(2)(a)(i), Clarence Arnold Moase is
prohibited from operating a motor vehicle on any street, road, highway or other public
place for life.
Conclusion
[46] Please stand, Mr. Moase. I sentence you to serve a period of incarceration of
six years, less a credit of 214 days for time served. Pursuant to s. 259(2)(a)(i), you are
prohibited from operating a motor vehicle on any street, road, highway or other public
place for life.
___________________________________
J.
December 4, 2012.