December 21, 2015 by Canadian Underwriter
When a judge makes a discretionary order of prohibition on a person convicted of impaired driving, the driving prohibition is supposed to commence “at the end of the period of imprisonment, not on the date of sentencing,” the Supreme Court of Canada has ruled.
In a divided decision released Dec. 17, Canada’s highest court restored a prison sentence of six years and six months on Tommy Lacasse, who pleaded guilty to two counts of alcohol-impaired driving causing death.
However, Lacasse’s driving prohibition has been reduced from 11 years to two years and four months.
Court records indicate that at about 4 am June 17, 2011 Lacasse “lost control of his vehicle while entering a curve on a country road in the Sainte Aurélie in the Beauce region.” Two of his female passengers, aged 17 and 18, were killed.
Lacasse “admitted to having smoked a joint of cannabis” at about 7:00 pm the previous night. He also drank “four small beers between 7:30 and midnight, another between 1:00 and 2:30 am and about 100 mL of lemonade and vodka mixture between 10:30 and 11:00 pm.”
The investigation determined the vehicle he was driving was going about 130 kilometres per hour on a curve where the recommended speed was 75 kilometres per hour.
A Quebec court sentenced Lacasse – on each count of impaired driving causing death – to six years and six months imprisonment minus a period of one month spent in pre-trial detention. Those sentences were to be served concurrently.
He was also sentenced to a driving prohibition of 11 years starting from the sentencing date.
The Quebec Court of Appeal replaced the sentence with one of four years’ imprisonment minus one month for the period of pre trial detention. The length of his driving prohibition was also reduced to four years commencing at the end of incarceration.
On appeal, the crown argued “that a sentence must commence when it is imposed and that the Court of Appeal erred in imposing a four year driving prohibition on the respondent at the end of his term of incarceration,” wrote Mr. Justice Richard Wagner of the Supreme Court of Canada on behalf of the himself and the four other judges who restored Lacasse’s prison sentence.
The other two judges hearing the crown appeal – Chief Justice Beverley McLachlin and Justice Clément Gascon – dissented.
Supreme Court of Canada disagreed that the Crown on the issue of the driving prohibition.
Section 259 (2) of the Criminal Code of Canada stipulates that when an offender is convicted of certain offences (including impaired driving), the court “may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be …. during any period that the court considers proper, plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for life in respect of that offence and if the sentence imposed is other than imprisonment for life.”
Before 1989, the law was worded “…during any period that the court considers proper, if the offender is liable to imprisonment for life in respect of that offence,” Justice Wagner noted.
“By adding the words ‘plus any period to which the offender is sentenced to imprisonment’, Parliament was making it clear that it intended driving prohibitions to commence at the end of the period of imprisonment, not on the date of sentencing,” he added.
Lacasse had been released July 5, 2011 on conditions, and was sentenced Oct. 4, 2013.
“If the term of imprisonment of six years and five months is subtracted, the driving prohibition should have been for four years and seven months commencing at the time” of Lacasse’s release from pre-trial custody, the Supreme Court of Canada ruled.
In restoring the prison sentence imposed at trial, the Supreme Court of Canada noted that the trial judge “properly emphasized the importance of deterrence and denunciation in this case, but he did not overlook the objective of rehabilitation,” Justice Wagner noted.
The Supreme Court of Canada also ruled that the trial judge did not err in considering “the frequency of impaired driving in the region where the offence was committed as a relevant sentencing factor.”
It was open to the trial judge “to take judicial notice of the evil represented by the large number of offences related to drinking and driving that are committed in the Beauce district,” Justice Wagner wrote, adding that the trial judge “was the resident judge in that district. He was therefore in a position to observe and assess the magnitude of the problem in his region, especially given that it is well established in our law that judges can take judicial notice of the contexts in which they perform the duties of their offices.”
Siding with Justice Wagner were Madam Justice Rosalie Silberman Abella, Madam Justice Suzanne Côté, Madam Justice Andromache Karakatsanis and Mr. Justice Michael J. Moldaver.