R. v. McIlwrick (J.R.), (2008) 461 A.R. 16 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 12, 2008
• Citations: (2008), 461 A.R. 16 (QB);2008 ABQB 724

R. v. McIlwrick (J.R.) (2008), 461 A.R. 16 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.047

Her Majesty the Queen v. James Richard McIlwrick (040549289Q1; 2008 ABQB 724)

Indexed As: R. v. McIlwrick (J.R.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

November 12, 2008.

Summary:

The accused was convicted of two counts of impaired driving causing bodily harm and two counts of impaired driving causing death under ss. 255(2) and (3) of the Criminal Code (see [2006] A.R. Uned. 294).

The Alberta Court of Queen's Bench sentenced the accused to four years' imprisonment (37 months of federal incarceration, after 11 months' credit for remand time). The court imposed a 10 year driving prohibition and ordered the taking of bodily substances for forensic DNA analysis under s. 487.051(b) of the Criminal Code.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - The accused was convicted of two counts of impaired driving causing bodily harm and two counts of impaired driving causing death - The accused had smoked marijuana before the accident - The accused's criminal record included one conviction for assault and 4 convictions for drug possession, including one for possession for the purpose of trafficking, predating these offences - The Alberta Court of Queen's Bench held that "prior convictions are aggravating where they demonstrate that the accused is a danger to society, which may justify more emphasis on denunciation and deterrence rather than rehabilitation. This applies where the prior convictions are for offences similar to the offence before the court, because they would then tend to show that the accused has a tendency, for example towards violence or dishonesty, that is dangerous to society and resistant to rehabilitation. However, where the prior offences are not similar to the one before the court, they may have little relevance" - The accused's prior convictions were for drug possession, not for driving while impaired or other Criminal Code driving offences - The offence of impaired driving was not concerned with whether a substance was legal or not, it was concerned with driving while the ability to do so was impaired by either alcohol, or a drug, whether that drug was illegally possessed or legally prescribed - The fact that marijuana was illegal, did not make the offence more serious - It was the impairment and the driving that mattered in this context - The danger to society arose from the accused's driving while impaired, not from his possession of marijuana - So, his prior convictions were of little relevance in and of themselves - However, the accused's prior and subsequent convictions for drug possession did provide additional evidence of another factor that the Crown asserted was aggravating, namely that the accused was a chronic drug user - See paragraphs 15 to 17.

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - The accused was convicted of two counts of impaired driving causing bodily harm and two counts of impaired driving causing death - The accused had smoked marijuana before the accident - The accused asserted that he suffered from a serious medical condition and that it should be considered a mitigating factor - The Alberta Court of Queen's Bench rejected the assertion - The fact that the accused had medical problems and required ongoing medical treatment was not mitigating - The accused's medical condition did not diminish the gravity of the offence or his moral blameworthiness for it - Even if he thought he was using marijuana for therapeutic, rather than recreational, reasons, that did not in any way excuse driving while or after using it - Further, there was no evidence that incarceration would affect his medical condition or the availability of medical treatment - Further, the accused was incarcerated for approximately six months and there was no evidence that this had any negative impact on his condition - See paragraph 30.

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - [See Criminal Law - Topic 5849.16 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - The accused was convicted of two counts of impaired driving causing bodily harm and two counts of impaired driving causing death - The accused smoked marijuana before the accident - The Crown asserted that the accused was a chronic drug user - The accused asserted that he suffered from a serious medical condition and that he needed marijuana for therapeutic purposes, for pain control and so he would be able to eat - The Alberta Court of Queen's Bench held that the accused had a drug dependency, similar to alcoholism - There was no evidence that the accused used marijuana for therapeutic purposes - His doctor did not refer to the requirement for or the desirability of treating the accused's condition with marijuana - The accused was using a number of prescription medications to treat his condition - There was no evidence that he had any medical need for marijuana or obtained any medical benefit from it - Further, the accused's use of marijuana dated back more than a decade before his medical condition, as established by prior drug convictions - Accordingly, the accused's continued chronic use of marijuana and his failure to take any steps to deal with his dependency was an aggravating factor - See paragraphs 19 to 24.

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The Alberta Court of Queen's Bench reviewed case law respecting sentencing in cases of impaired driving causing death and stated that "the cases do, in my opinion, support two general conclusions. One is that conditional sentences are reserved for special circumstances in cases of impaired driving causing death. Another is that sentences greater than 4 years are almost always reserved for offenders with previous impaired driving charges" - See paragraph 68.

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The accused was convicted of two counts of impaired driving causing bodily harm and two counts of impaired driving causing death -The accused, who had smoked marijuana prior to driving or was smoking marijuana while driving, drove into the oncoming lane of traffic - He struck a vehicle, killing its driver and one passenger and injuring two others - The Alberta Court of Queen's Bench sentenced the accused to four years' imprisonment (37 months of federal incarceration, after 11 months' credit for remand time) - The accused had no related criminal record - He was not a youthful offender (31 years at the time of the offence, 37 at sentencing) - He had a long history of chronic marijuana abuse and should have been aware of the drug's effects - He continued to have a drug problem, demonstrated by his convictions for drug possession and a resulting breach of recognizance while on release - The fact that he had not taken any steps to deal with this problem suggested that his expressions of remorse lacked real depth - He faced very difficult medical problems - However, his almost exclusive focus on his medical problems, and his failure to take meaningful responsibility for his actions, meant that he continued to pose a danger to society - The nature of his driving, crossing the centre lane of a highway directly into an oncoming vehicle, when road conditions and visibility were good, was an aggravating factor - See paragraphs 68 to 72.

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See second Criminal Law - Topic 5864.1 ].

Cases Noticed:

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R. v. Larche (J.-P.), [2006] 2 S.C.R. 762; 355 N.R. 48; 2006 SCC 56, refd to. [para. 12].

R. v. Bockman (R.M.) (2005), 389 A.R. 311; 2005 ABQB 918, refd to. [para. 18].

R. v. Merrifield (D.C.) (2007), 297 Sask.R. 276; 2007 SKPC 77, refd to. [para. 18].

R. v. Cote (D.A.) (2007), 300 Sask.R. 194; 2007 SKPC 100, refd to. [para. 18].

R. v. Stevenson, [2003] N.J. No. 125 (Prov. Ct.), refd to. [para. 18].

R. v. McKinley (M.E.K.) (2006), 403 A.R. 188; 2006 ABPC 152, refd to. [para. 18].

R. v. Woodfine, [2005] N.J. No. 338 (Prov. Ct.), refd to. [para. 18].

R. v. Brady, 2005 BCPC 499, refd to. [para. 18].

R. v. Wishart, 2003 BCPC 425, refd to. [para. 18].

R. v. Rhyason (B.P.) (2007), 404 A.R. 191; 394 W.A.C. 191; 2007 ABCA 119, refd to. [para. 28].

R. v. Brucker (B.E.) (2004), 362 A.R. 120; 2004 ABPC 181, refd to. [para. 36].

R. v. Gallant (J.J.), [2004] A.R. Uned. 84; 2004 ABCA 202, refd to. [para. 36].

R. v. Engelhardt (N.J.) (1999), 228 A.R. 337; 188 W.A.C. 337; 1999 ABCA 4, refd to. [para. 36].

R. v. Iftody (T.L.) (2003), 326 A.R. 358; 2003 ABPC 22, refd to. [para. 41].

R. v. Jackson (J.E.), [2007] A.R. Uned. 390; 2007 ABPC 198, refd to. [para. 41].

R. v. Carr (J.J.) (2008), 441 A.R. 360; 2008 ABQB 228, refd to. [para. 41].

R. v. Jenkins, [2004] A.J. No. 1631 (Q.B.), refd to. [para. 46].

R. v. Gallant (J.A.) (2008), 272 Nfld. & P.E.I.R. 338; 830 A.P.R. 338; 2008 PESCAD 1, refd to. [para. 47].

R. v. Wolfe, [2003] O.J. No. 5684 (C.J.), refd to. [para. 48].

R. v. Adams, 2005 NBPC 19, refd to. [para. 49].

R. v. Elliott, [2004] O.J. No. 5608 (Sup. Ct.), refd to. [para. 50].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 52].

R. v. McCormick (A.E.) (2006), 401 A.R. 119; 391 W.A.C. 119; 2006 ABCA 410, refd to. [para. 55].

R. v. Page (D.J.) (2003), 330 A.R. 192; 299 W.A.C. 192; 2003 ABCA 212, refd to. [para. 56].

R. v. Veitch (B.J.) (2008), 438 A.R. 15, 2008 ABPC 4, refd to. [para. 58].

R. v. Stumpf (T.A.) (2006), 413 A.R. 359; 2006 ABPC 282, refd to. [para. 59].

R. v. Milaney (T.P.), [2008] A.R. Uned. 429; 2008 ABPC 189, refd to. [para. 60].

R. v. Bockman (R.M.) (2005), 389 A.R. 311; 2005 ABQB 918, refd to. [para. 61].

R. v. T.J.G., [2005] A.J. No. 1920 (Q.B.), refd to. [para. 62].

R. v. Recabarren (J.) (2006), 402 A.R. 143; 2006 ABPC 109, refd to. [para. 63].

R. v. McKinley (M.E.K.) (2006), 403 A.R. 188; 2006 ABPC 152, refd to. [para. 64].

R. v. Gratton (A.L.) (2003), 356 A.R. 334; 2003 ABQB 882, refd to. [para. 65].

R. v. Petiquay, 2006 QCCQ 506, refd to. [para. 66].

R. v. Doxtator, [2003] O.J. No. 5988 (Sup. Ct.), refd to. [para. 66].

R. v. McFadden, 2003 PESCTD 67, refd to. [para. 66].

R. v. Naedzo (W.S.), [2007] Northwest Terr. Cases (SC) 68; 2007 NWTSC 68, refd to. [para. 66].

R. v. Comeau (G.) (2006), 300 N.B.R.(2d) 343; 782 A.P.R. 343; 2006 NBQB 59, refd to. [para. 66].

R. v. LaChappelle, [2005] O.J. No. 4248 (Sup. Ct.), refd to. [para. 66].

R. v. Klausen, 2004 BCPC 382, refd to. [para. 66].

R. v. Brisson, [2003] O.J. No. 6216 (Sup. Ct.), refd to. [para. 66].

R. v. Parrell, [2005] O.J. No. 4322 (C.J.), refd to. [para. 66].

R. v. Galloway (R.) (2004), 247 Sask.R. 107; 2004 SKQB 130, refd to. [para. 66].

R. v. Smyth, [2004] O.J. No. 292 (C.J.), refd to. [para. 66].

R. v. Dalkeith-Mackie (J.D.) (2003), 180 Man.R.(2d) 175; 310 W.A.C. 175; 2003 MBCA 144, refd to. [para. 66].

R. v. Robbie (G.) (2005), 265 Sask.R. 313; 2005 SKPC 72, refd to. [para. 66].

R. v. Szakacs (T.N.) (2006), 282 Sask.R. 117; 2006 SKQB 269, refd to. [para. 66].

R. v. Van Puyenbroek (Y.) (2007), 231 O.A.C. 146; 2007 ONCA 824, refd to. [para. 66].

R. v. Weaver, [2003] O.J. No. 2198 (Sup. Ct.), refd to. [para. 66].

R. v. Page, [2004] O.J. No. 5242 (Sup. Ct.), refd to. [para. 66].

R. v. Niganobe (J.), [2008] O.T.C. Uned. L91 (Sup. Ct.), refd to. [para. 67].

R. v. Cooper (M.) (2007), 255 N.S.R.(2d) 18; 814 A.P.R. 18; 2007 NSSC 130, refd to. [para. 67].

R. v. Cote (D.A.) (2007), 300 Sask.R. 194; 2007 SKPC 100, refd to. [para. 67].

R. v. Mooswa, [2004] S.J. No. 851 (Q.B.), refd to. [para. 67].

Counsel:

Gregory Marchant, for Her Majesty the Queen;

William J. Tatarchuk, Q.C., for James Richard McIlwrick.

This case was heard on November 12, 2008, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered his decision orally on November 12, 2008, and filed the following written reasons on November 21, 2008.