Ramage sentence upheld

The anxiously awaited decision in R. v. Ramage, 2010 ONCA 488 was just released and the conviction and sentence upheld.  In so doing the Court gave useful guidance on appellant review of sentences at trial:

 

[67]          At the end of his careful and detailed reasons for sentence, the trial judge aptly described the difficult task he faced in sentencing the appellant:

My responsibility in this matter is to impose a sentence on an offender who is an exemplary citizen, who has committed a serious crime with tragic consequences ... .  It is not an easy task but the message of general deterrence must be met.

[68]          The trial judge proceeded to impose sentences totalling four years.  He also imposed a five-year driving prohibition. 

[69]          This court’s power to vary a sentence on appeal is found in s. 687(1) of the Criminal Code.  That section tells the court to examine the “fitness” of the sentence imposed at trial.  The controlling jurisprudence directs that an appellate court must defer to the sentencing decision made at trial unless the appellate court is convinced that there is an error in principle or that the sentence is demonstrably unfit:  R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 90; R. v. L.M., [2008] 2 S.C.R. 163 at para. 14.  Counsel for the appellant focussed primarily on the second of the two bases upon which this court can interfere with the sentence imposed at trial.   Counsel submitted that while a four-year sentence was within the appropriate range for these offences, the sentence was “entirely disproportionate” given the appellant’s exemplary background and the position taken by the Magnuson family.  I take this to be an argument that, in the circumstances, the sentence was manifestly unreasonable.

[70]          Appellate deference to the trial judge’s sentencing decision makes good sense.  Sentencing is a fact-specific exercise of judicial discretion.  It is anything but an exact science.  In the vast majority of cases, there is no single sentence that is clearly preferable to all others.  Instead, there is a range of reasonable options from which the trial judge must make his or her selection.  That selection is driven by the judge’s evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence.  Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence.  Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources.  The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process.  

[71]          A deferential standard of review on sentence appeals also recognizes that a trial judge has an advantage over the appellate court when it comes to balancing the competing interests at play in sentencing.  The trial judge gains an appreciation of the relevant events and an insight into the participants in those events - particularly the accused - that cannot be revealed by appellate review of a transcript.  For example, in this case, the appellant’s remorse was accepted as genuine; however, at no time did he offer any explanation for what had happened.  The trial judge was much better positioned than this court to evaluate these arguably inconsistent features of the appellant’s response to the tragic events. 

[72]          Deference is justified for a third reason.  The sentencing judge represents and speaks for the community that has suffered the consequences of the crime.  He or she is much better placed to determine the sentence needed to adequately protect the community than is an appellate court sitting at a distant place often years removed from the relevant events.  As explained in M. (C.A.) at para. 91:

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime.  As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community.  The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[73]          I would think the trial judge’s ability to gauge the interests of the community was particularly important to his decision that a conditional sentence would be inappropriate.  Counsel for the appellant made a forceful argument that with the appropriate terms, a conditional sentence could meet the needs of general deterrence and denunciation.  The trial judge was in the best position to assess the merits of that submission, having regard to his perception of the community’s legitimate expectations.  I would add that the trial judge’s determination that a sentence of more than two years was required rendered moot any consideration of a conditional sentence. 

[74]          In imposing sentence, the trial judge identified general deterrence as the predominant concern.  In doing so, he correctly applied this court’s judgment in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.).  In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts.  In the memorable words of MacKinnon A.C.J.O. at p. 150, “every drinking driver is a potential killer”.  Unfortunately, that potential was realized in this case. 

[75]          McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law.  Even in those cases, however, McVeigh indicates that general deterrence is of primary importance.  The result in McVeigh demonstrates the court’s commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs.  McVeigh, a 31-year old first offender, had his sentence increased from 21 months to three years. 

[76]          As noted by the trial judge, there were aggravating factors in this case.  The appellant’s blood alcohol level was very high, well beyond the blood alcohol level of .160 deemed by statute to be an aggravating factor:  s. 255.1 of the Criminal Code.  The readings leave no doubt that the appellant was significantly impaired.  As he drove along the road, he presented an immediate and very real danger to hundreds of people.  Given the appellant’s very high blood alcohol level and his inevitable degree of impairment, the appellant must have known of the risk he posed to all around him when he chose to leave the reception and drive to his destination.  The danger created by the appellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random.  The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct.  Significant incarceration is the remedy that most emphatically achieves those goals. 

[77]          The sentencing process is, of course, not just about the offence.  It is also about the offender.  The trial judge was alive to the many mitigating factors in this case.  Not only is the appellant a first offender, but he is also an outstanding member of the community. The letters filed on his behalf on sentencing are a tribute to a life well led by the appellant.  He is a dedicated father and husband.  The appellant’s remorse is real and deep.  He will probably never forgive himself for what has happened to his friend, Mr. Magnuson, although the Magnuson family has forgiven him and asked the trial judge to not incarcerate the appellant.  The trial judge fully canvassed the “moving and rare” position taken by the Magnuson family and properly considered their request as one of the many factors that were relevant to his determination of an appropriate sentence.  He likewise gave full and proper consideration to the victim impact statement of Ms. Pacheco.    

[78]          The appellant’s convictions and resulting sentence will also have a significant impact on his ability to continue to live and work in the United States, where he has lived for many years.  The trial judge was advised that once sentenced, the appellant, who is not an American citizen, will be barred from re-entry into the United States subject to gaining re-entry through a complicated and difficult process.  The appellant’s future may not be in the United States, where he has lived and raised a family for many years. 

[79]          I have read and reread all of the material filed on sentencing.  As the trial judge observed, counsel for the Crown and counsel for the appellant both made excellent presentations on sentencing. 

[80]          Initially, I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant’s exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation.    I thought that a penitentiary sentence of less than four years would achieve that purpose.  Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge’s decision the deference it is due.  There is no error in principle here.  Nor, in light of McVeigh and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable.  This court must yield to the trial judge’s determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision.  I would add that deferring is made much easier by the trial judge’s thorough reasons, which demonstrate a keen appreciation of all of the factors relevant to the determination of the appropriate sentence in this very difficult case.