Jail for first-time drunk driver

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Judge Ray Wyant says Manitobans have the right to safe roads. (BRUCE BUMSTEAD / BRANDON SUN ARCHIVES)

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The culture of drinking and driving doesn't appear to be changing -- so a Manitoba judge says it's time the courts do something about it.

Provincial court Judge Ray Wyant took the rare step Wednesday of ignoring a Crown-defence sentencing recommendation, raising the bar for the kind of criminal offence that is becoming common.

Jesse Friesen, 29, appeared in court, hoping to get a fine and one-year driving ban under terms of a plea bargain struck by the Crown and defence. Instead, he left with a 14-day jail term, a 15-month driving prohibition and two years of supervised probation.

"I want the public to know that in imposing a jail sentence on Mr. Friesen, I am sending a message, and a warning, that the gloves are coming off when it comes to these types of cases of drinking and driving," Wyant said

Friesen, who had no criminal record and didn't hurt or injure anyone, has lost his opportunity to become a firefighter because of his crime. He also expressed remorse for his actions and had strong family support in court.

Wyant said despite all those positive factors, he needed to come down hard with the type of sentence he said he's never imposed before in these circumstances.

"Driving a car while impaired is like holding a loaded gun. The potential for death and injury is great," said Wyant. "I want the people who think they can flout the law and risk injury and death to know that as a society, this behaviour cannot be tolerated. We must take all reasonable steps to reduce the senseless carnage on our roads and highways."

Friesen was arrested last summer with a 0.33 blood-alcohol reading, which indicates an extreme level of intoxication. He was returning to Winnipeg from his cottage one evening and managed to avoid hitting other vehicles before driving into a ditch on Highway 59.

"This isn't just a social issue, it's a criminal issue. And as we hit the height of the summer season and more and more people will hit the roads and highways of our province on vacation, I want them to be able to feel a measure of safety that their lives will not be at such extreme risk at the unexpected risk of an impaired driver," said Wyant.

Wyant said he's aware the Court of Appeal has given judges strict instructions to ignore plea bargains only in rare circumstances. But Wyant said he couldn't ignore the broader issue of how impaired driving continues to be a major issue in Manitoba.

"Yes, fines are normal when no injury or death occurs. But jail is an option. To the argument that because fines have always been the case, so it should be the case, I say no," Wyant said in his decision.

"There is no absolute right for a fine in these cases."

Wyant was particularly upset with Friesen's level of impairment, which was more than four times the legal limit. Wyant said expert witnesses have testified people who are that impaired have acute alcohol poisoning and struggle to stay alive. As part of his probation, Friesen must abstain from alcohol and undergo counselling and treatment.

"It's not easy to send someone to jail in a situation where they are not in need of such correction personally and where, as here, the potential to be a productive and law-abiding member of society is high," said Wyant. "But this is not just about Mr. Friesen, it's about the issue of his behaviour and these circumstances, and what I find in this case to be the primary principal of deterrence and denunciation."

The impact of Wyant's decision remains to be seen. Hours after the ruling, another Manitoba judge handed a drunk driver a hefty fine for a crash in which there were no major injuries but plenty of damage. Although his blood-alcohol reading was lower than Friesen's, he had a criminal record.

Friesen has a month to file an appeal.

A spokesman for the Winnipeg chapter of Mothers Against Drunk Driving said the verdict is a step in the right direction, even if it's overturned on appeal.

"If he saves one life due to this judgment, it was worth it," said Wayne Bodnarchuk. "It's going to raise a lot of eyebrows."

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In Wyant's words

"It's not easy to send someone to jail in a situation where they are not in need of such correction personally and where, as here, the potential to be a productive and law-abiding member of society is high. But this is not just about Mr. Friesen. It's about the issue of his behaviour and these circumstances and what I find in this case to be the primary principle of deterrence and denunciation.

"I want the public to know that in imposing a jail sentence on Mr. Friesen, I am sending a message, and a warning, that the gloves are coming off when it comes to these types of cases of drinking and driving. Driving a car while impaired is like holding a loaded gun. The potential for death and injury is great. And if you choose to drink and drive, even as a first offender, you run the risk of not only losing your licence and your car and your money and getting a criminal record. You now run the risk of losing your job and your liberty.

"I want the people who think they can flout the law and risk injury and death to know that as a society this behaviour cannot be tolerated. This isn't just a social issue, it's a criminal issue. And as we hit the height of the summer season and more and more people will hit the roads and highways of our province on vacation, I want them to be able to feel a measure of safety that their lives will not be at such extreme risk at the unexpected risk of an impaired driver.

"So for the people who sit at their cottages at Lake Manitoba beaches, or Grand Beach or Victoria Beach or Gull Lake or Falcon or West Hawk, or wherever they may be, it is unacceptable and criminal to have alcohol in their system when they head out on the highways to and from their cottages at any time.

"And that goes for anyone, rural or urban, who thinks they are invincible or immune to the consequences of their behaviour. If we can save any life, if we can save the families and the children of our province who have the right to expect to be safe on our roads, by sending a message to those who would drink and drive, then some good will come of this decision, I hope.

"We must take all reasonable steps to reduce the senseless carnage on our roads and highways. Yes, fines are normal when no injury or death occurs. But jail is an option.

"To the argument that because fines have always been the case, so it should be the case, I say, no. If that were to be the situation, then the law would never move, it would be static. And courts have always moved the bar when circumstances call for it. There is no absolute right for a fine in these cases."

Republished from the Winnipeg Free Press print edition July 12, 2012 A3