R. v. Musseau (C.), (2010) 318 Nfld. & P.E.I.R. 315 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 15, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 318 Nfld. & P.E.I.R. 315 (NLPC);2010 NLPC 13109

R. v. Musseau (C.) (2010), 318 Nfld. & P.E.I.R. 315 (NLPC);

    989 A.P.R. 315

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. FE.016

Her Majesty the Queen v. Christopher Musseau

(2010 NLPC 13109A00300)

Indexed As: R. v. Musseau (C.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 28, 2010.

Summary:

The accused pleaded guilty to operating a motor vehicle while having an excessive blood-alcohol level. The Crown proceeded by way of summary conviction.

The Newfoundland and Labrador Provincial Court sentenced the accused to 10 months' imprisonment and a five year driving prohibition.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The Newfoundland and Labrador Provincial Court set out the following summary of the principles arising from the case law respecting sentencing for operating a motor vehicle while having an excessive blood-alcohol level by an offender who had a related record: "1. drinking and driving is the crime which causes 'the most significant social loss to the country' ...; 2. it is not necessary for the Court to wait for someone to be killed for it to impose a sentence which seeks to protect the public ... 3. the Court must ensure that the sentence imposed is a proportionate one and that the offender is sentenced for the offence actually committed. However, a Court can consider the potential harm that could have occurred as a result of the offender's conduct ... 4. the Court must consider any increase in minimum and maximum penalties prescribed by Parliament ... but the Court must not place too great an emphasis on Parliament's decision to increase a minimum mandatory penalty ... 5. the primary sentencing principle to be applied is protection of the public through the application of the sentencing principle of general deterrence ... and 6. the court must consider all of the circumstances, but in particular: i. the nature of the driving involved; ii. the blood-alcohol level recorded (particularly if it exceeded 160 milligrams) and other indications of the offender's degree of impairment; and iii. the nature of the offender's previous convictions, including the number; when they were committed; and the effect if any of previous sentences imposed ... Finally, it is important for a Court to ask itself: what is it attempting to achieve in imposing sentence in these types of cases? I believe the answer to that question is: the prevention of injury and death. ... How is this to be achieved? I believe the Court has a crucial role to play. It must impose sentences which deter drinking and driving before it occurs rather than attempting to deter it by imposing sentence upon those who have harmed or killed someone. This requires the Court to recognize that those contemplating drinking and driving can, at a certain level of impairment, still be deterred and that the moral blameworthiness between those who kill and maim and those who do not is often slim. Thus, in imposing sentence in cases such as this one, s. 718(c) of the Criminal Code [i.e., separation of offenders from society] must be applied." - See paragraphs 56 to 60.

Criminal Law - Topic 5886

Sentence - Impaired driving - The 54 year old accused pleaded guilty to operating a motor vehicle while having an excessive blood-alcohol level - The accused's vehicle collided with another vehicle on a main commercial street in Corner Brook - He got out of his vehicle, exchanged information with the driver of the other vehicle and then walked away - The other driver concluded that the accused was under the influence of alcohol and called the police - By the time that the police responded, neither the accused nor his vehicle were present - The police located the accused driving on a highway - He was "grossly intoxicated" - Breath samples returned readings of 230 mg/100 ml and 240 mg/100 ml - The accused was employed by a snow removal company - He tended to minimize the frequency and extent of his use of alcohol and did not feel that it was problematic or that he required counselling - A presentence report concluded that the accused was suitable for community supervision, but that the prognosis for successful intervention was poor - The accused had over 100 prior convictions occurring between 1979 to 1992, including a 1979 conviction and a 1981 conviction for impaired driving offences - The Newfoundland and Labrador Provincial Court concluded that the accused's record indicated that he constituted an ongoing danger to the public and that his rehabilitation through community based sanctions was unlikely to be successful - The accused's blood-alcohol level was an aggravating factor (Criminal Code, s. 255.1) - Where this was a third offence, the minimum sentence was 120 days' imprisonment and a three year driving prohibition, while the maximum was 18 months' imprisonment and a lifetime prohibition (ss. 255 and 259) - The court concluded that an appropriate sentence was 10 months' imprisonment, one year's probation and a five year driving prohibition.

Cases Noticed:

R. v. Taylor (D.) (2004), 189 O.A.C. 388 (C.A.), refd to. [para. 17].

R. v. L.M.B. (2004), 240 Nfld. & P.E.I.R. 334; 711 A.P.R. 334; 2004 NLSCTD 151, refd to. [para. 17].

R. v. Williams (D.), [2004] Nfld. & P.E.I.R. Uned. 103; 9 M.V.R.(5th) 183; 2004 NLCA 15, refd to. [para. 20].

R. v. Newman (S.J.) (2009), 286 Nfld. & P.E.I.R. 176; 883 A.P.R. 176 (N.L.C.A.), refd to. [para. 20].

R. v. P.M.V. (2010), 282 B.C.A.C. 171; 476 W.A.C. 171; 2010 BCCA 34, refd to. [para. 20].

R. v. W.E. (2010), 293 Nfld. & P.E.I.R. 52; 906 A.P.R. 52; 2010 NLCA 4, refd to. [para. 20].

R. v. Squires (L.J.) (1995), 130 Nfld. & P.E.I.R. 84; 405 A.P.R. 84 (Nfld. C.A.), refd to. [para. 31].

R. v. Wells (R.J.), [1997] Nfld. & P.E.I.R. Uned. 26 (Nfld. C.A.), refd to. [para. 32].

R. v. Payne (D.L.) (2001), 208 Nfld. & P.E.I.R. 345; 624 A.P.R. 345 (Nfld. Prov. Ct.), refd to. [para. 33].

R. v. Hunt (D.W.) (2001), 207 Nfld. & P.E.I.R. 104; 620 A.P.R. 104 (Nfld. T.D.), refd to. [para. 34].

R. v. Connolly (2002), 21 M.V.R.(4th) 272 (N.L. Prov. Ct.), refd to. [para. 35].

R. v. Dunne, 2002 NFCA 12, refd to. [para. 36].

R. v. Cull (E.) (2003), 230 Nfld. & P.E.I.R. 7; 682 A.P.R. 7 (N.L.T.D.), refd to. [para. 37].

R. v. Power (J.F.) (2004), 238 Nfld. & P.E.I.R. 201; 706 A.P.R. 201 (N.L.C.A.), refd to. [para. 38].

R. v. Pittman (K.) (2006), 258 Nfld. & P.E.I.R. 357; 779 A.P.R. 357 (N.L.T.D.), refd to. [para. 44].

R. v. Hartery, [2007] N.J. No. 12 (Prov. Ct.), refd to. [para. 45].

R. v. Giovannini, [2007] N.J. No. 336 (Prov. Ct.), refd to. [para. 46].

R. v. Riggs, [2007] N.J. No. 360 (Prov. Ct.), refd to. [para. 47].

R. v. Oxford (2007), 45 M.V.R. (5th) 79 (N.L.P.C.), refd to. [para. 49].

R. v. Cullen (R.F.) (2009), 283 Nfld. & P.E.I.R. 57; 873 A.P.R. 57; 2009 NLCA 16, refd to. [para. 51].

R. v. Slaney, [2009] N.J. No. 327 (Prov. Ct.), refd to. [para. 52].

R. v. White (R.) (2009), 292 Nfld. & P.E.I.R. 128; 902 A.P.R. 128 (N.L.T.D.), refd to. [para. 53].

R. v. Germain, [2009] Y.J. No. 38 (Terr. Ct.), refd to. [para. 56].

R. v. Blanchard (R.R.) (2009), 278 B.C.A.C. 244; 471 W.A.C. 244 (Yuk. C.A.), refd to. [para. 57].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 58].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 58].

R. v. Jacobs (1982), 39 A.R. 391; 70 C.C.C.(2d) 569 (C.A.), refd to. [para. 58].

R. v. Alexson (1987), 60 Sask.R. 63; 7 M.V.R.(2d) 95 (C.A.), refd to. [para. 58].

R. v. Woodward (H.) (1993), 108 Nfld. & P.E.I.R. 240; 339 A.P.R. 240 (Nfld. C.A.), refd to. [para. 58].

R. v. McVeigh (1985), 11 O.A.C. 345; 22 C.C.C.(3d) 145 (C.A.), refd to. [para. 58].

R. v. Minaker (D.R.), [2009] A.R. Uned. 58; 79 M.V.R.(5th) 177 (C.A.), refd to. [para. 61].

Counsel:

M. Fox, for Her Majesty the Queen;

J. MacDonald, for Mr. Musseau.

This matter was heard on December 15, 2009, and January 19, 2010, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on January 28, 2010.