A great deal of public attention has recently been given to the case of Marco Muzzo, currently before the court  in Newmarket on charges of criminal negligence causing 4 deaths.  Media reports have indicated that he had failed to stop for a red light and had a blood-alcohol level above the legal limit.

Notwithstanding that he was arrested several months ago, he never sought to be released on bail. Rather, his counsel Brian Greenspan has revealed that he will be pleading guilty to certain charges in February and there will not  be a joint submission with the Crown on what the sentence should be.

To better understand what has gone on and what may be anticipated, here are some factors to be aware of:

  1. When the Crown has a very strong case and a jail sentence is a certainty on conviction, it may well be worthwhile to work on resolving it at the earliest possible time without seeking to obtain the release of the accused on bail. When the case has as intense a degree of public scrutiny as this one, that strategy may be even more worthwhile.  While the accused might want some time to arrange his personal affairs if released, his return to the community might engender very real public hostility which might, in turn, colour the later proceedings even more dramatically against him than the facts of the offence will do on their own;
  2. From a negotiating standpoint, when it could be said that an accused is inextricably caught, the Crown doesn’t have to offer much to encourage the accused to plead guilty and the defence has essentially no bargaining room.  The Crown can decide which charges to proceed on (in this case, there may be some duplication as, for example, charges of impaired causing death in addition to the criminal negligence charges) and can determine what position would be appropriate to take on sentencing without having to concede much, if anything, to the defence. The defence may be left in the position of emphasizing the fact that the accused has pled guilty at the earliest opportunity, has no record, has saved the family the stress of contested and protracted court proceedings and, accordingly, should get a sentence that would fall within the lower end of the range for such offences;
  3. That latter aspect has been considered very recently by the Supreme Court of Canada in the case of R. v. Lacasse.  A young man in Quebec, with no criminal record, entered pleas of guilty to two counts of impaired operation of a motor vehicle causing death.  While intoxicated, he drove at a high rate of speed and lost control of his vehicle, causing the deaths of his two passengers.  The trial judge commented on the problems in the local community with drinking drivers and decided to impose a 6 ½ year sentence plus a lengthy driving prohibition.

The  sentence was appealed to the Quebec Court of Appeal, who reduced it to 4 years.  The Court commented that the trial judge hadn’t given enough weight to the young man’s lack of record and guilty plea.  Significantly, they said that the sentence was outside of the range normally imposed on other offenders in similar cases and, therefore, was disproportionate to the accused’s degree of culpability.

Their ruling was reversed by a majority of the Supreme Court of Canada on December 17th, 2015.  In essence, the majority determined that sentencing is an individualized process with a very wide discretion being given to the trial judge who hears the evidence and knows the local conditions.  While sentencing ranges may be developed through a series of decisions of different courts, the specific sentence that’s considered to be proportionate,  in the sense that it is reflective of the degree of moral culpability of the particular offender for his or her conduct giving rise to the offence, is a matter generally best determined by the trial judge.  It may, in the appropriate circumstances, exceed the range of sentence without falling into reversible error.

Two of the Supreme Court judges dissented. They felt that the trial judge hadn’t given enough weight to the mitigating factors such as lack of record and youth of the offender but chose to focus heavily on the prevalence of the offence of drinking and driving in the community. He did so without evidence and without letting the defence know how much weight he was going to give to that single factor. The concept of proportionality, in the view of the dissenting judges, involved consideration of what sentences had been given to others in similar situations to that before the court on this occasion.  On that basis, they felt that the decision of the Quebec Court of Appeal was right, as appellate intervention was warranted.

As a side note, the driving prohibition imposed by the trial judge was reduced to give the accused credit for the time he’d spent on bail when he couldn’t drive.

Without predicting the sentence that Mr. Muzzo will get, I’m sure that the Crown, defence and judge will get considerable guidance from the decision in Lacasse. It certainly couldn’t have come in a more timely fashion.

If you have any questions, please email contact@jeffmanishen.com.


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