Winnipeg Free Press - PRINT EDITION
A mixed message for drunk drivers
One judge's tough stand must be repeated
When Manitoba Judge Ray Wyant sent a stern message to would-be drunk drivers by sending a first-time offender to jail, it appeared a new day was dawning in how our courts were prepared to handle our most pressing road-safety issue.
Repeating that judgment, however, has been a different story.
This may have less to do with judges and more to do with the law surrounding sentencing and plea deals jointly put to judges by Crown and defence lawyers.
That jail for first-time drunk drivers remains rare in Manitoba appears evident from the results of a Free Press investigation published earlier this week.
The newspaper examined cases from the Winnipeg police Checkstop initiative in 2012 and found that fines remain overwhelmingly the punishment of choice for drunk driving where no personal injury occurs.
Twenty-four of 29 cases that had been resolved by press time resulted in fines ranging from the mandatory minimum $1,000 up to $2,500. All 29 were barred from driving for various periods, but no less than a year.
These sentences came many months after Wyant uttered his get-tough stand from the bench in July 2012:
"I want the public to know that in imposing a jail sentence, I am sending a message and a warning that the gloves are coming off when it comes to these types of cases," he said as he gave Jesse Friesen 14 days in jail, rejecting a joint submission from lawyers to fine the first-offender for his crime.
Wyant wasn't kidding. A few weeks later, he sent another first-time drunk driver to jail for two weeks, again rejecting a negotiated plea deal in which lawyers asked for a "high" fine and "an appropriate" driving ban in the case.
This time, Wyant's sentence wouldn't exactly stick.
Randall Dyck was arrested for impaired operation of a motor vehicle after he drove an unregistered car into the ditch along Highway 5 near Kleefield on Jan. 16, 2012. He appeared before Wyant to plead guilty and be sentenced in September 2012.
Witnesses who saw the 45-year-old in the ditch say Dyck became upset and tried to leave after he was told police were coming, according to prosecutors. They saw him driving in the ditch for 200 to 250 metres, at one point catching his bumper and ripping it off.
Police arrived and arrested Dyck, who refused to provide a breath sample. "His behaviour was described as aggressive, belligerent and uncivilized," the Crown attorney said.
At sentencing, Dyck said he didn't remember much of the event, but indicated he never meant to drive. He said he planned to stay at a friend's home where he had consumed the alcoholic drinks, but was ejected into the cold night.
After hearing both sides, Wyant signalled he wasn't comfortable with simply dishing out a fine and driving ban after looking at all the factors in the case.
Such punishment would be enough to deter Dyck personally (known as specific deterrence), Wyant reasoned, but it sent the entirely wrong message to the community at large (general deterrence).
"I think if I impose a fine, Mr. Dyck, I am sending a message to people that it is OK to just get blitzed to your heart's content, so blitzed that you can't remember, and put the lives of the citizens of this community at risk," Wyant said.
"I want people to get a message," the judge added.
"I think that they need to get a message that if you're going to exercise judgment after you've been drinking and take the lives of people in your hands drinking and driving, the potential for severe consequences is there, whether you are a first offender or not."
On top of 14 days in jail, to be served on weekends, Wyant meted out a period of probation and an 18-month driving ban for Dyck.
Dyck appealed to the Court of Queen's Bench and won a partial victory. By the time of his appeal hearing earlier this year, he'd already served his two weeks of jail time, so that couldn't be quashed.
But Justice Doug Abra called a halt to Dyck's probation and slashed his driving prohibition to one year.
Abra's chief concern was how Wyant came to reject the joint sentencing recommendation.
Wyant was obligated to tell the lawyer and law student involved that he was concerned about the general-deterrence aspect of their proposed sentence and allow them to address that concern head-on in argument, Abra said.
"In my view, he ought to have done so, because there's a big difference between the principle of general deterrence and the principle of specific deterrence," Abra said.
Sentencing judges retain the right to set aside joint submissions, said Abra.
But to do so, he said the judge is required to allow those suggesting the sentencing deal to address the court's specific concerns, which Abra felt wasn't done. "I reiterate, the sentencing judge in this case didn't make very clear what his specific concern was."
By my understanding of the law as it is today, Abra was absolutely correct.
But this leads to the larger, more pressing point.
It strikes me as a simply incredible amount of hoop-jumping in law Wyant was required to do here to get the outcome he felt was just and send a memo to society that it's not a foregone conclusion drunk drivers will simply fork over some cash and be barred from driving for a short time if they drive impaired, transforming the roads into death traps for the innocent.
We expect and demand that our judges make incredibly tough calls, as Wyant did in Dyck's case, for everyone's benefit.
It should be easier for them to do what they feel is right instead of seeing their hands bound with the equivalent of legal red tape.
Republished from the Winnipeg Free Press print edition December 26, 2013 A3
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