



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. LaForme, 2014 ONCA 367

DATE: 20140507

DOCKET: C58092

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Marvin LaForme

Respondent

Michael Perlin, for the appellant

Lauren M. Wilhelm, for the respondent

Heard: May 6, 2014

On appeal from the sentence imposed on November 6, 2013
    by Justice Donald J. Gordon of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The Crown seeks leave to appeal from a conditional sentence
    of imprisonment imposed following the accuseds guilty plea to impaired driving
    causing bodily harm. The defence concedes that the sentence imposed was not
    available because s. 742.1 forecloses the imposition of a conditional sentence
    for a serious personal injury offence, defined in s. 752 of the
Criminal
    Code
as:

1.

An indictable offence

2.

Punishable by a term of imprisonment of ten years or
    more

3.

With conduct endangering the life of safety of
    another person.

[2]

The accused drank 8-10
    beers during the afternoon of February 5, 2011 until he was cut off by the
    bartender. She warned him not to drive, however the accused drove at a high
    rate of speed, swerved in and out of his lane on snow covered roads, lost
    control of his truck and rolled it. A passenger was rendered a quadriplegic as
    a result of the accident. The accuseds blood-alcohol level was more than
    double the legal limit.

[3]

The Crown sought an 18
    month jail sentence following the plea and renews that submission before this
    court. Defence concedes that this is within the range of appropriate sentences
    but suggests that the term of imprisonment should be attenuated by the
    accuseds personal circumstances.

[4]

The accused is 72 years
    old. He has suffered from serious health issues. In November 2011 he was
    diagnosed with two brain aneurysms. One required surgery. The other requires
    monitoring because a rupture could lead to death. On March 13, 2013 he
    underwent a total knee replacement complicated by cellulitis which developed
    after the surgery and which persisted at the time of sentencing.

[5]

The accused is a member
    of the Mississaugas of New Credit First Nation. He grew up on the New Credit
    Reserve. For 22 years he served as elected councillor for the New Credit
    Council.

[6]

The Gladue report
    prepared for the purpose of sentencing indicates that the accuseds own father
    was a drinker and that the accused started drinking at the age of 12 years. He
    was not taught any native language, nor instructed in his aboriginal culture.

[7]

While his counsel
    describes him as an aging aboriginal man who has battled alcohol for most of
    his life, he has made significant contributions to his community. He worked as
    a welder, taught welding at a local college and ran a business for 25 years. He
    is now retired, does volunteer work and is supported by Canada Pension
    payments.

[8]

He is reported to have
    stopped consuming alcohol after this offence. He has five prior driving related
    convictions which are quite dated: dangerous driving in 1968, over 80 operation
    of a vehicle in 1973, failure to provide a breath sample in and impaired
    driving in 1987. He was convicted of assaulting his wife in 1998.

[9]

The accused himself lost
    three siblings as a result of separate incidents of impaired driving.

[10]

Sentences for impaired
    driving causing bodily harm frequently attract custodial sentences.
    Denunciation and general deterrence require emphasis because of the serious
    consequences for other users of the roads. (See
R. v. Junkert
, 2010 ONCA 549). Sentences of four to five years
    have been upheld for impaired driving causing death. (See
R. v.
    Ramage
,
R. v. Niganobe
, 2010 ONCA 508,
R. v. Hall
, (2007),83 O.R. (3d) 641).

[11]

The consequences for the
    accuseds passenger have been catastrophic. Timothy Henry is developmentally
    delayed, but was able to live independently before the accident and participate
    fully in family and community events. Now he is confined to a wheelchair and
    needs help to do all activities. He lives in a nursing home surrounded by
    others much older than he, where, as he says, people passing away on a regular
    basis is part of his daily life.

[12]

Here the sentencing
    judge imposed a conditional sentence because he was concerned that the
    accuseds health problems might go unattended if he were incarcerated. While
    the accused does have health issues, there is no basis to believe that he would
    be any less at risk in the community as opposed to within a custodial institution.

[13]

The accused has now
    served five months and ten days of the conditional sentence of imprisonment,
    under house arrest, and requiring him to perform community service. The
    respondent submits that he should get credit for this time, perhaps on a 1.5 to
    1 basis since parole, statutory remission and early release do not apply to
    conditional sentences, and that the court should consider staying any further
    sentence because of the hardship associated with incarceration at this stage,
    in light of the respondents personal circumstances. On the other hand, house
    arrest has been less restrictive of his liberty than a jail sentence.

[14]

The usual credit in
    these circumstances has been on a one for one basis. (See
R. v.
    G.C.F
. (2004) O.J. No. 3177)

[15]

In our view, given the
    seriousness of the offence, a stay is not appropriate. (See
R.
    v. Veysey
, 2006 N.B.C.A.).

[16]

We see no reason to
    depart from the norm of credit on a one for one basis, rounding the time served
    on the conditional sentence to six months. After credit for this time, the
    accused is sentenced to 12 months.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


