



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gauthier-Carrière, 2019 ONCA
    790

DATE: 20191004

DOCKET: C64427

Feldman, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marco Gauthier-Carrière

Appellant

Marco Gauthier-Carrière, in person

Delmar Doucette, appearing as duty
    counsel

Jessica Smith Joy, for the respondent

Heard: April 11, 2019

On appeal from the sentence imposed on
    July 13, 2017 by Justice Hugh R. McLean of the Superior Court of Justice.

Feldman J.A.:

[1]

The appellant was convicted by a jury on April 5,
    2017 of impaired driving causing death contrary to what was then s. 255(3) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, and criminal negligence
    causing death contrary to s. 220 of the
Criminal Code
. He was 21 years
    old at the time the offences occurred. He had consumed alcohol and marijuana
    before getting behind the wheel with his girlfriend as the front seat
    passenger.

[2]

The appellant was driving on Montreal Road in
    Ottawa when his car crossed the median and the two opposing lanes of traffic.
    The car then travelled onto the adjoining grass area where it hit a concrete
    light standard. The light standard fell onto the car, killing the appellants
    girlfriend. The appellant was also seriously injured.

[3]

The appellant was released on an undertaking
    after arrest. One of the conditions of his release prohibited him from driving.
    He was subject to this condition for 3 years and 3 months. During this period, on
    March 27, 2016, the appellant drove. As a result, he was charged with breach of
    undertaking. He pled guilty to the breach after he was sentenced on the two
    driving offences on July 13, 2017, and received a 21-day sentence concurrent to
    the sentences imposed for impaired driving causing death and criminal
    negligence causing death.

[4]

With respect to those offences, the appellant
    was sentenced to 5 years in prison concurrent on each count as well as a
    10-year driving prohibition. This sentence appeal relates only to the driving
    prohibition.

[5]

In his reasons for sentence, the sentencing
    judge concluded as follows:

Therefore, when I
    consider the evidence that is before me with regard to sentence and the
    incident itself, the Court is of the view that a sentence of five years in the
    penitentiary will meet the ends of justice. There will also be an order
    prohibiting you from driving for a period of 10 years. Thank you. There will be
    no DNA. And the sentence will be five years on count 1 concurrent to a five
    year sentence on count 2.

[6]

Because the sentencing judge did not state in
    the reasons when the driving prohibition would take effect, and the order that
    he signed on that day provided that the driving prohibition was [f]or a period
    of 10 years, commencing on todays date, the appellant submits, and the Crown
    agrees, that the sentencing judge committed the error identified by the Supreme
    Court of Canada in
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    by ordering that the driving prohibition commence on the date of sentencing
    rather than at the end of the period of imprisonment.

[7]

In
Lacasse
, the court pointed to the
    wording of what was then s. 259(2)(a.1) of the
Criminal Code
, which
    had been amended to specifically add the words plus any period to which the
    offender is sentenced to imprisonment to the period of the driving prohibition
    in cases where the offender is liable to imprisonment for life but receives a
    sentence other than life. By adding these words, the court in
Lacasse
concluded that 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: at para. 109. Therefore, an order that the driving
    prohibition commence on the day the sentence commences rather than on the date
    of release is an error in law.

[8]

Because the Crown agreed with duty counsel on
    this inmate appeal that the sentencing judge made the
Lacasse
error,
    the court was not asked to rule on the meaning or effect of the wording of the
    prohibition order.

[9]

In
Lacasse
, at para. 110, the court
    described the remedy for the error as a simple mathematical operation: the term
    of imprisonment imposed is subtracted from the period of the driving
    prohibition, which then commences at the time of the offenders release.

[10]

In addition, the Supreme Court in
Lacasse

addressed
    the issue of whether credit should also be given for time spent subject to a
    presentence driving prohibition that was imposed as a condition of release. On
    that point, the Supreme Court stated, at para. 113:

In short, where a
    driving prohibition is not only one of the release conditions imposed on an
    accused but also part of the sentence imposed upon his or her conviction, the
    length of the presentence driving prohibition must be subtracted from the
    prohibition imposed in the context of the sentence.

[11]

On this appeal, duty counsel and the Crown agree that in order to
    calculate the accurate effective period for the driving prohibition in
    accordance with
Lacasse
, the period of incarceration of 5 years must
    be subtracted from the 10-year driving prohibition. Subject to the issue
    discussed below, this would leave a driving prohibition of 5 years, commencing
    upon the appellants release from custody.

[12]

The one outstanding issue on which they do not agree is whether
Lacasse
also requires the deduction of the entire period of the presentence driving
    prohibition, or whether the court has the discretion to modify the size of the
    deduction, because, in this case, the appellant breached that condition.

[13]

The appellant was subject to a driving prohibition while on presentence
    release for 3 years and 3 months. Duty counsel submits that the appellant is
    entitled to credit for this full amount, with the result that the 5-year
    driving prohibition running from the time of the appellants release would be
    reduced to 1 year and 9 months.

[14]

The Crown submits that the appellants breach of his release
    conditions disentitles him to any credit because the release condition
    prohibiting him from driving failed to have its intended effect. As a secondary
    position, the Crown submits that at least the period of the presentence driving
    prohibition following the breach should not form part of the credit.

[15]

While the Supreme Court in
Lacasse
did not discuss the
    issue whether a sentencing judge has a residual discretion with respect to the
    amount of credit to be given for a presentence driving prohibition that was
    breached, its analysis of the fresh evidence of other breaches by M. Lacasse
    and their potential effect on his sentence is instructive.

[16]

M. Lacasse pled guilty to two breaches of his recognizance
    subsequent to his sentencing for the impaired driving causing death offences. Although
    M. Lacasses breaches were not driving breaches, the Supreme Court noted that
    they are evidence of a lack of respect on the respondents part for court
    orders and for the law, which relates directly to the conditions for his
    rehabilitation: at para. 118. The Crown sought to introduce evidence of these
    breaches as fresh evidence on the sentence appeal but the Court of Appeal
    refused.

[17]

The Supreme Court found that to be an error by the Court of Appeal
    because the evidence of the two breaches of the recognizances could have
    affected the weight given to the favourable presentence report and could
    therefore have affected the final sentencing decision. In particular, the Court
    of Appeal might have reached a different conclusion if it had admitted that
    evidence, which would have helped it in assessing the fitness of the sentence
    that had been imposed at trial: at para. 120.

[18]

In my view, applying similar reasoning, the fact that the appellant
    breached the driving prohibition that was a condition of his presentence
    release also demonstrated a lack of respect for court orders and the law. As
    this was an inmate appeal, this court was not given full information about the
    circumstances of the breach. Duty counsel stated that the appellant was driving
    someone to the hospital at the time, but it was not part of the record before
    the court. The appellant pled guilty and was sentenced to 21 days concurrent
    for the breach. That sentence would have taken into account the circumstances
    of the breach.

[19]

The Crown submitted that this court not follow the British Columbia
    Court of Appeal decision in
R. v. Burke
, 2017 BCCA 381, 21 M.V.R. (7th)
    43. There the court rejected a similar Crown submission on the basis that,
    whether or not the court retains any residual discretion after
Lacasse
to modify the extent of the deduction for time spent subject to a presentence
    driving prohibition, there was no basis to deny the credit where the appellant
    had been sentenced separately for a breach of a driving condition.

[20]

I would accept the submission of the Crown because it does not
    appear that the British Columbia Court of Appeal considered the portion of the
Lacasse
decision that discussed the fresh evidence and the effect that breaches of
    recognizance could have on a courts sentencing decision. In
Lacasse
,
    there had also been a guilty plea to the breaches, and M. Lacasse was sentenced
    to an additional 15 days imprisonment. But that did not prevent the Supreme Court
    from saying that the Court of Appeal should have taken the breaches into
    account when assessing the fitness of the sentence imposed at trial.

[21]

In conclusion, the Crowns position was that this court should
    exercise its discretion by according no credit for the period of the driving
    prohibition following the breach, approximately 1 year, 3 months. Duty counsel
    responded that if there were to be any reduction in the credit, it be a maximum
    of 3 months, bringing the total driving prohibition to 2 years following the
    appellants release.

[22]

I would accept the submission of the Crown
.
    In the context of serious driving offences that resulted in the death of a
    passenger in the car, the appellants failure to strictly abide by the driving
    prohibition that was a condition of his release indicates that the appellant
    did not accept the seriousness and reason for the driving prohibition, and his
    obligation to obey the law.
I would therefore grant leave to appeal the sentence
    and order that the period of the driving prohibition be 3 years following the
    appellants release from custody. On consent, I would also set aside the
    imposition of the victim surcharge.

Released: K.F. October 4, 2019

K. Feldman
    J.A.

I agree. M.L.
    Benotto J.A.

I agree. David
    Brown J.A.


