Date: 20170201
Docket: CR 14-15-00633
(Thompson Centre)
Indexed as: R. v. Morrisseau
Cited as: 2017 MBQB 26
COURT OF QUEEN'S BENCH OF MANITOBA
BETWEEN:
)
)
)
HER MAJESTY THE QUEEN
)
)
)
)
- and )
)
)
TIMOTHY CHARLES JOSEPH MORRISSEAU,
)
)
Accused. )
)
)
APPEARANCES:
David Gray & Barbara Pesalj
for the Crown
Jody Ostapiw
for the Accused
Judgment delivered:
February 1, 2017
MARTIN J.
I.
INTRODUCTION
[1]
As dawn broke on a beautiful July morning in 2013 near Thompson,
Manitoba, the all-too-common tragedy of death and life-changing injury from
drinking and driving struck yet again. This time three young persons lost their
lives and three others were seriously injured in a single vehicle, high-speed
rollover.
All six were friends who had been partying and drinking together.
Timothy Morrisseau was the driver.
[2]
Three years later he pled guilty to three counts of criminal negligence
causing death and two counts of criminal negligence causing bodily harm, along
Page: 2
with two criminal offences of breaching a recognizance for violating his curfew
and consuming alcohol, and one of breaching a probation order by drinking. My
task now is to impose a fit and appropriate sentence upon Mr. Morrisseau for
these offences.
[3]
The Crown seeks a total sentence of 11 years, 8 months’ incarceration,
while Mr. Morrisseau argues for a six-year sentence.
They differ in their
approach in that the Crown seeks a global 11-year sentence for the criminal
negligence charges and consecutive sentences totalling eight months for the
others, while Mr. Morrisseau argues for one global sentence for all charges.
From whatever sentence, they agree that Mr. Morrisseau should receive credit
for his pre-sentence custody, at a 1.5:1 ratio, of three years, nine and one-half
months. Thus, the go-forward penitentiary sentence would range from just over
two years to just under eight years. They also agree that a substantial driving
prohibition is warranted.
[4]
As a bit of a road map, I will outline the key facts, the sentencing
principles at play, Mr. Morrisseau’s background, sentence precedents, my
analysis and finally, my conclusion.
II.
FACTS
[5]
As a brief summary of the main facts for sentencing purposes, I note the
following.
[6]
On July 5, 2013, Mr. Morrisseau was a 23-year-old Aboriginal man who
had an unrelated criminal record. At that time he was under a probation order
not to consume alcohol. He was also bound by a recognizance with conditions
Page: 3
that he observe a curfew and not drink. He also had another undertaking not to
drink, respecting other charges.
[7]
Despite these restrictions, Mr. Morrisseau was at a typical house party
with a number of friends. They drank and carried on through sunrise on July 6.
Around 6:00 a.m., Mr. Morrisseau suggested they go to nearby Paint Lake. Five
partiers agreed and piled into a 2008 Chevrolet Impala owned by one of them.
Nobody except Mr. Morrisseau put on a seatbelt. He drove through Thompson at
a high rate of speed and then on Highway 6 toward Paint Lake.
[8]
Mr. Morrisseau was driving fast and recklessly.
Someone said to slow
down. The five passengers were high-spirited, whooping and hollering through
the windows and standing up, “dancing” it was described, through the sunroof.
At one point, Mr. Morrisseau allowed the Impala to veer across a solid yellow line
on the highway, forcing an oncoming vehicle to the shoulder to avoid a collision.
Mr. Morrisseau continued swerving down the highway and shortly lost control of
the Impala.
It shot off the highway and rolled over many times.
except Mr. Morrisseau was thrown from the vehicle.
Everyone
Scene photos show the
tremendous force and violence of the crash.
[9]
Two of the occupants, ages 15 and 17, died instantly. The owner of the
car, Mr. Morrisseau’s brother-in-law, aged 24, died six days later. The other two,
aged 25 and 18, and Mr. Morrisseau, suffered serious injuries and have ongoing
difficulties.
[10]
An RCMP traffic analyst estimated the speed of the Impala at the time of
the accident to be 150-160 km/h. The highway speed limit was 100 km/h. The
Page: 4
onboard car monitor logged the speed two seconds before the rollover impact to
be 214 km/h. Mr. Morrisseau’s blood alcohol level at the time of the accident
was between .214 and .229 mgs%, at the low end over two and one-half times
the legal limit of .08 mgs%. And, Mr. Morrisseau’s right to drive was suspended.
III.
SENTENCE CONSIDERATIONS
[11]
Section 718 of the Criminal Code sets out the general scheme of
sentencing considerations. Of relevance, these include the fundamental purpose
of respect for the law and the maintenance of a just, peaceful and safe society
by imposing just sanctions, having the objectives of denunciation, deterrence,
separation of offenders from society where necessary, rehabilitation, reparation
and responsibility.
Critically, s. 718.1 requires that the sentence be
proportionate to the gravity of the offence and the degree of responsibility of the
offender.
Further, s. 718.2 invokes other principles such as aggravating and
mitigating circumstances of the offences and the offender, parity, restraint and
totality of sentence. Also, here the impact on the victims and the degree of
intoxication are statutory aggravating factors.
[12]
The penalties for the offences are also important.
The most serious
offences of criminal negligence causing death, or causing bodily harm, have a
maximum sentence of life in prison and 10 years, respectively.
As well, a
maximum Criminal Code driving prohibition equal to the term of imprisonment
plus any other period the court considers proper is mandated (s. 259(2)(a.i)).
The other offences all have lesser penalties.
Page: 5
IV.
MR. MORRISSEAU’S BACKGROUND
[13]
Mr. Morrisseau was born in 1990 in Thompson. He has three siblings and
many half siblings on his father’s side, three of whom grew up with
Mr. Morrisseau. Both of his parents are Indigenous people, but from different
areas. He grew up in poverty until his teen years, as his parents struggled with
gambling addictions.
Not infrequently he was deprived of basic necessities
including proper clothes and food. Domestic violence between his parents was a
staple in the household; it cascaded in violence to the children as well.
[14]
there.
Mr. Morrisseau often stayed away from the home to avoid the chaos
Into his teens he became an outstanding hockey player.
He worked
intermittently for his uncle for four to five years as a student apprentice in
concrete and landscaping.
He was interested in, and took to, sled dog
competitions. He left school in grade nine and hung around with friends. He has
not been involved in street gangs.
[15]
Mr. Morrisseau began using alcohol and drugs at around 13 and 14 years
old. He believes he has been an alcoholic since age 16 and that it has affected
his life in many ways, including an inability to foster relationships and criminal
offending, mostly of petty matters but also assaults, some serious. While dealing
with youth charges he has twice been referred to alcohol treatment, but neither
referral led to any consistent programming or gains. Mr. Morrisseau did not have
enough maturity or motivation to stick with it. By age 17 he was diagnosed with
anxiety and depression, including anxiety attacks, which he attributes to an
abusive, violent and unstructured home life.
Page: 6
[16]
His criminal record spans from his teenage years to the time of the crash.
Of note, he has been convicted of about 38 breaches of court orders and 11
assaults of one form or another. Regrettably but predictably, he appeared to be
repeating a pattern of violent behaviour he was exposed to. Overwhelmingly the
offences are alcohol related. He was running out of control.
[17]
Mr. Morrisseau is still a relatively young, 26-year-old, Anishinaabe-Ojibway
man who plans to finish his high school through GED and then attain a certificate
in IT programming. He is single and has no children. His parents were not
materially involved in his adult life. They visited him only once in the last three
years that he has been in jail. Despite this, he attributes his future success to
his mother and sister supporting him. He has support in the community and
from his extended family. While in custody, he has taken a number of programs
and generally appears to have participated relatively constructively in the daily
routine of prison life.
[18]
At the sentencing he gave a heartfelt address that, taken on face value,
shows insight, remorse, motivation and good prospects for rehabilitation.
Materially, shortly before his arrest, which was about three months after the
crash, on his own he sought out alcohol treatment because, he says, he hit rock
bottom with this tragedy.
V.
PRECEDENTS
[19]
Altogether, I was given 38 authorities. Many were for various common-
sentencing principles or had fact patterns too distinct from the “similar sentences
for similar offenders and offences, committed in similar circumstances” parity
Page: 7
principle to be of much guidance. Of note, none of the cases, where the overall
circumstances were comparable, support the Crown’s or Mr. Morrisseau’s
sentence positions of almost 12 years and six years respectively.
[20]
Having said that, the following cases are noteworthy:

In R. v. Kummer (A. L.), 2011 ONCA 39, 273 O.A.C. 378, Mr.
Kummer was sentenced to eight years for causing the death of three
people, and injuring two others, while driving dangerously and being
impaired, which was cited only as over double the legal limit. While
driving 122 km/h in a 70 km/h speed limit area, he overlooked a stop
sign and plowed into another vehicle. His passenger had told him to
slow down. The vehicles exploded and three people, including two
teenage boys, died in the flames. Mr. Kummer was described as a
person of good character, with no prior record, but having a significant
driving record, including a prior accident-related, careless-driving
offence.

In R. v. Luskin, 2012 ONSC 1764, [2012] O.J. No. 1239 (QL), Mr.
Luskin was sentenced to eight years for three counts of criminal
negligence causing death and two impaired causing bodily harm. He
was a 23-year-old immigrant who was travelling at 181 km/h just
before the accident, and at least 118 km/h on impact, when he
smashed into a minivan, shredding it into four pieces.
His blood-
alcohol level was between .122 and .157 mgs%. He had an unrelated
Page: 8
record but had consistently been under bail or correctional supervision
since arriving in Canada.

In R. v. Pratt (J.R.), 2014 ABQB 529, 596 A.R. 199, Mr. Pratt was
sentenced to eight years for three counts of manslaughter by driving
impaired and causing an accident. He had been speeding at 199 km/h
and rear-ended the vehicle ahead, which was driving at the posted 70
km/h speed limit. Three occupants of the other vehicle were killed.
Mr. Pratt’s blood-alcohol level was .200 mgs%.
He had no prior
record.

Most recently in R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506
(QL), Mr. Muzzo was sentenced to ten years for causing four deaths
and seriously injuring two others.
He was returning home from a
weekend of partying when he went through a stop sign, smashing into
the vehicle having the right-of-way.
His blood-alcohol level was
between .190 and .245 mgs%, and he was speeding.
He killed a
grandfather and his three young grandchildren, gutting an entire
family.
All of these cases involved risky combinations of drunkenness, speed and bad
driving, adding up to reckless disregard for others. In most of these cases, the
victims were innocent bystanders. Only in the Kummer decision was a person
hurt or killed, who was a passenger in the vehicle causing the accident. All these
cases are relatively recent and reflect the trend of harsher penalties for these
types of crimes. Of these offenders, only Mr. Pratt was Aboriginal. While one
Page: 9
could quibble with whether one case or another dealt with the same specific
charges as here, or had the exact same features, the bottom line is that the
moral blameworthiness of all of these offenders is very high, with devastating
consequences.
VI.
ANALYSIS
[21]
It is trite to say that arriving at a fit and appropriate sentence for a
particular offender, in a particular set of circumstances, is a difficult exercise of
discretion for a sentencing judge. In the end, the sentence must be tailor-made,
fair and just. While punishment may be a factor, vengeance must not. The
overall sentence must be proportionate to the offence and offender, and
consistent with the fundamental purposes of sentencing.
[22]
Recently, in a case involving impaired driving causing two deaths, the
Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089,
commented on the broad discretion held by sentencing judges balancing relevant
sentencing factors. Early in the judgment, the court highlighted the notion of
sentence parity and that rehabilitation remains one of the main objectives of
Canadian criminal law. Further, the court said in cases such as this, “deterrence
and
denunciation
must
be
emphasized
in
order
to
convey
society’s
condemnation” (para. 5), and observed that Parliament wanted such offences to
be punished more harshly.
They reflected that “despite countless awareness
campaigns conducted over the years, impaired driving offences still cause more
deaths than any offences in Canada” (para. 7) and that this conduct was
denounced by the court more than 20 years ago.
Page: 10
[23]
The Crown filed a Statistics Canada report entitled “Impaired Driving in
Canada, 2015” catalogue no. 85-002-X (Ottawa: Statistics Canada, 14 December
2016)i (see endnote). It was released in December 2016. Perhaps contrary to
common belief, it highlights that, on a per capita basis, incidents of impaired
driving and impaired driving causing death or injury have declined markedly over
the last decades, and is trending downward. From this report it would be fair to
say that the spotlight on drinking and driving offences over the last several
decades is having an effect, likely from a combination of harsher sentences,
publicity, awareness or education campaigns and, as noted in the report, lifestyle
changes. The highest incident rate remains in the 20 to 24-year-old category.
Not surprisingly, fast and aggressive driving and not wearing seatbelts are at-risk
behaviours associated with impaired driving. Overall, the report does not lend
support to the Crown’s contention that yet higher and harsher sentences are
required as a matter of general deterrence, such so as to justify an 11-year
sentence for Mr. Morrisseau for the driving offences.
[24]
Moving on, I must first determine whether the sentences should be
consecutive or concurrent, or a combination of both. Here, criminal negligence
covers all of the victims and all of the driving circumstances. Hence, a global
sentence will properly reflect Mr. Morrisseau’s culpability for those acts. As to
the other offences, while they are connected in that the probation order and the
recognizance were legal constraints upon him that night and morning, they are
independent. While they could be considered aggravating circumstances as part
of a global sentence for the criminal negligence charges, this would not
Page: 11
sufficiently reflect that these offences stand alone, regardless of the driving. His
ignoring curfew and drinking were decisions made while sober, well before the
driving. Blending them into the driving offences mutes their significance and
may be seen as a so-called “free ride”. They warrant consecutive sentences and,
as such, the totality principle will come into play.
[25]
I now turn to the aggravating and mitigating circumstances of the offence
and the offender. Respecting the criminal negligence charges, the aggravating
factors can be concisely summed up as: driving a car full of partying teenagers
and young adult friends, who were not wearing seatbelts, in an erratic and
dangerous manner at very high speed, while very drunk, causing a violent crash
killing three and seriously injuring two, all while suspended from driving and
under court order not to drink.
There are few mitigating circumstances.
I
accept that his guilty plea to the most serious charges on the indictment is both
a sincere admission of responsibility and of contrition or remorse. It is true that
this did not happen until the eve of trial, but nonetheless under the
circumstances it is understandable, as his counsel suggests, that accepting the
magnitude of what he had done to his friends may have taken until the brink of
trial to admit, even to himself. His statement in court to the victims’ families
appeared heartfelt and genuine. I also take into account a number of other
factors.
[26]
First, there is no smoothing over the devastating effects of this event on
the victims and their families. The impact is deeply felt in many ways. And, as
said so many times by other judges, nothing in the sentence can undo the loss,
Page: 12
pain and grief of the surviving victims and all the families. These feelings will
hopefully dampen with time, but undoubtedly will never really disappear.
[27]
Second, turning to Mr. Morrisseau’s Aboriginal background, the Supreme
Court of Canada has been clear that assessing Gladue principles is a duty of all
sentencing judges. To be clear, there is no race-based sentence discount, but
rather there is recognition that “the reality is that [Indigenous peoples’]
constrained circumstances may diminish their moral culpability” (R. v. Ipeelee,
2012 SCC 13 at para. 73, [2012] 1 S.C.R. 433). The Manitoba Court of Appeal,
in R. v. Smoke, 2014 MBCA 91, 310 Man.R. (2d) 123, said at paras. 41–42:
It is worth repeating that, while an accused’s circumstances as an
Aboriginal offender often comes into play for less serious offences and
results in community-based sentence instead of a short period of
incarceration, the Supreme Court of Canada has recognized that, even for
serious offences requiring a period of incarceration, these circumstances
may still be relevant to lessen what would otherwise be a fit and proper
period of incarceration. . . .
Thus, the factors related to the accused’s circumstances as an Aboriginal
offender must be taken into account as mitigating factors going to moral
blameworthiness and weighed, together with all the other mitigating and
aggravating factors related to the offender and the offence, in
determining the appropriate sentence for each offence. This applies
whether the link is direct or indirect. . . .
[28]
Mr. Morrisseau’s background is difficult, but sadly not unique to his
generation of young Indigenous adults. I have no doubt that Mr. Morrisseau’s
dysfunctional upbringing, including poverty and family violence, materially
contributed to his lifestyle, alcohol addiction and related criminal behaviour. I
will not detail the Gladue report, but poverty, lack of education, lack of
employment and unstable family and community supports are clear indicators of
the effect of his Indigenous ancestry upon his present-day conduct.
It is
Page: 13
indirectly linked to Canada’s history of oppression and colonization of Indigenous
people, although he personally does not have insight into this. He has very little
connection to his roots or Aboriginal culture or spirituality – an outcome sought
by Canada’s early Indian policies.
[29]
Further, in terms of the restraint principle, before this offence the longest
sentence he had received was 11 months in jail. So any penitentiary sentence I
impose will be a significant jump and have much more impact on him.
[30]
Third, as noted, the sentence cases I outlined earlier are the closest
comparisons to the circumstances here. It is difficult to say that one or the other
is more grave or serious or that a certain particular factor outweighs another
different factor in a different case. Meaningful differences in the type of charges
is minimal, considering the underlying facts of this and those cases, although I
recognize that criminal negligence culpability is at the top of the driving offences
hierarchy (similar to Luskin and Pratt).
[31]
Fourth, Mr. Morrisseau’s prior criminal record is concerning but is
unrelated, in that he has does not have a noteworthy driving record or other
Criminal Code driving convictions.
His licence to drive was suspended for
being convicted of taking an auto without the owner’s consent. All in, his record
disentitles him to some degree of leniency, most particularly as it relates to the
breach of court-order charges.
[32]
Fifth, rehabilitation is a real prospect for him. Of note, his parents came
to court to support him and they now appear to be in a positive place in their
lives. Other family members are also prepared to support him. Finally, as noted
Page: 14
earlier, he started to take steps before his arrest to finally deal with his alcohol
addiction. With proper programming, treatment and parole supervision, his risk
of re-offending can be lessened.
[33]
So how do I balance all of the factors that I need take into account to
arrive at a fit and appropriate sentence?
[34]
Clearly the effects of drinking and driving, and the at-risk behaviours often
associated with it, such as reckless driving, remain a curse on our highways and
in society. Denunciation and deterrence are primary concerns. The devastating
impact of this accident on the victims and their families must also not be ignored.
The aggravating features here are significant, while the mitigating ones less so.
Mr. Morrisseau’s distressful upbringing and background bring him squarely within
consideration of Gladue factors, yet while his alcoholism and conduct can partly
be explained, it cannot be excused. His moral blameworthiness for this crash is
very high. I accept that his remorse is genuine. Where, as here, there is a
realistic hope for rehabilitation, the sentence must be one that does not punish
to the extent of extinguishing that hope.
Mr. Morrisseau has never before
experienced a federal penitentiary sentence or even faced the prospect of such a
sentence. The sentence must be just but not vindictive. It should be similar to
other offenders in similar circumstances.
[35]
While the focus of counsel and this decision has been on the driving
offences, the breach charges must not be ignored.
To be clear, as I am
sentencing separately on these charges, I have not reflected these as part of the
criminal negligence sentence. Counsel advised there was another order in place
Page: 15
at the time that he did not plead guilty to, which could aggravate the driving
offences, and that was the passing reference I made when outlining the
aggravating factors on the driving offences.
Nevertheless, these three guilty
pleas are significant because they involve two distinct types of breach, curfew
and not consuming alcohol.
The two alcohol charges should be concurrent
sentences as they cover the same matter, while the curfew should be
consecutive. His long record of breaching orders disentitles him to leniency here.
[36]
Finally, not much was made of a driving prohibition.
It is part of the
sentence and hence part of his penalty, subject to the same sentence factors I
have outlined (R. v. Muthoka, 2011 MBCA 40, 268 Man.R. (2d) 26). Of further
note though, it must be recognized that, particularly outside of large urban
centres like Winnipeg, the inability to drive has significant and difficult
consequences on many aspects of everyday life, including job and education
opportunities, let alone more urgent situations such as medical and child care.
Mr. Morrisseau will be given the opportunity to rehabilitate himself and to be
released into the community at some point. An unduly long prohibition may well
be an obstacle to his success in the community.
And it appears any alcohol
ignition interlock program is not available as a relief valve from a prohibition for
the criminal negligence convictions. He will receive a significant sanction for his
behaviour and has no other material driving record. Thus, the prohibition should
be tempered by all these factors and bearing in mind that, whenever his
prohibition is over, he will still have to prove to the drivers licensing authority
that he is capable of driving safely and within the law before he gets a licence.
Page: 16
Until that happens, he will be on a suspended status even after the prohibition
order expires.
VII.
CONCLUSION
[37]
In conclusion, weighing and balancing all of the factors that I must, I
sentence Mr. Morrisseau as follows:
(1)
counts 1, 2 and 3, criminal negligence causing death, eight years
concurrent to each;
(2)
counts 4 and 5, criminal negligence causing bodily harm, five years
concurrent to count 1 and each other;
(3)
count 22, breaching his recognizance by consuming alcohol, four
months consecutive to count 1;
(4)
count 23, breaching his recognizance by not obeying his curfew,
four months consecutive to count 1 and count 22; and
(5)
count 25, breaching his probation order by consuming alcohol, four
months concurrent to all counts.
The total sentence is thus eight years, eight months. As some of the sentences
are consecutive, I must take a last look to ensure the total sentence is not
unduly harsh. I am satisfied it is not. Mr. Morrisseau will receive pre-sentence
custody credit of three years, nine and one-half months, leaving a go-forward
sentence of four years, ten and one-half months.
In addition, he will be
prohibited from driving for five years after his sentence.
[38]
Finally, Mr. Morrisseau will provide a sample of his DNA within 14 days for
retention in the national DNA data bank. As these charges precede the changes
Page: 17
to the victim surcharge legislation, I agree with counsel that it should not be
ordered.
_________________________________ J.
Impaired Driving in Canada, 2015 (Statistics Canada)
Page 3:
In 2015, police reported 72,039 impaired driving incidents, representing a rate of 201 incidents
per 100,000 population. This is the lowest rate since data on impaired driving were first collected
in 1986 (-65%) and 4% lower than in 2014.
...
The highest impaired driving rates were reported in the Northwest Territories, Yukon and
Saskatchewan. The lowest rates were in Ontario, Quebec and Manitoba.
...
Young adults aged 20 to 24 years had the highest impaired driving rates. However, the largest
declines in rates since 2009 were also observed among young drivers.
...
Healthy lifestyles were generally linked to a lower likelihood of driving impaired, but individuals
who play team sports were more likely to report having driven after drinking.
Persons who reported other at-risk behaviours while driving, such as being more aggressive than
the average, speeding or using a cell phone, were more likely to report having driven after
drinking.
...
Page 5:
In 2015, impaired driving reported by police was at its lowest level since 1986, the year that data
on impaired driving were first collected. Both the number of incidents reported and the impaired
driving rate per 100,000 population have dropped over the last 30 years....
...
Police reported 72,039 impaired driving incidents nationally, corresponding to a rate of 201
incidents per 100,000 population (Table 1.1). This rate is 4% lower than that reported in 2014
(210 per 100,000 population) and 65% lower than the rate reported in 1986 (577 per 100,000
population).
Page: 18
The impaired driving rate declined almost steadily from 1986 until the early 2000s. It then
remained relatively stable, with slight fluctuations from time to time, until the start of the current
decade when it renewed its downward trend.
...
Impaired driving causing death and impaired driving causing bodily harm … For these offences,
there has also been a substantial decline. In 2015, police reported 122 incidents of impaired
driving causing death and 596 incidents of impaired driving causing bodily harm. In comparison,
in 1986, police reported 196 and 1,581 of these incidents respectively. When the size of the
population in those years is taken into consideration, these figures correspond to rate decreases
of 55% and 73% respectively.
The number of incidents of impaired driving causing death and impaired driving causing bodily
harm were also down from the previous year. In 2014, police reported 130 incidents causing
death and 605 causing bodily harm.