The afternoon of June 21, 2009 was a fateful one for Lawrence Bush and his three friends. Bush drank, did drugs, drove and, as a result, killed his friend. For this, he received a 12 year prison sentence. He thought that was too high. The Ontario Court of Appeal disagreed and upheld the highest sentence in the land to date for impaired driving and criminal negligence causing death: 2012 ONCA 743.

The facts were “egregious”; the driving was “outrageous.” Bush, on bail for an impaired driving charge, had been legally barred from driving since 1985 and was convicted 10 days earlier, for the 8^th time, of driving while his license was suspended. Despite this, he chose to drive a car, in the middle of the day, down country roads, for over an hour at speeds of 170 km/hr, all the while drinking and continuing to take narcotics. The sheer stupidity included driving at 110 km/hr with Bruno, a passenger who was also drunk and high, “hood surfing” on the hood of the car. The car ended up in the ditch. Unfortunately for all, it didn’t stay there.

Someone in the car was clearly coming to his senses and asked Bush to slow down his driving once he got the car back onto the road. This fell on deaf ears and shortly thereafter, Bush again drove off the road, landing the car on its roof in a stream. Bush took off, leaving Bruno, passed out in the car with his head underwater and another passenger trapped in the back of the car with his head, fortunately, in an air pocket.

Bush returned to the crash site several minutes later but refused to help the trapped passengers until they agreed to lie to the police to protect him. He also wasted precious time disposing of the alcohol and drugs in the car. One of the passengers managed to extricate himself and went to get help. When the police arrived 20 minutes later and pulled Bruno out of the water, he was dead.

Bush’s blood alcohol concentration was between 273 and 371 mg/100ml – 3 to 4 times the legal limit. To have a blood alcohol concentration only twice the legal limit is deemed to be an aggravating factor under the law and he was twice that.

It seems that the only thing to Bush’s credit was that he pleaded guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified and breach of an undertaking to abstain from the consumption of alcohol.

Despite the Crown seeking 10 years, the judge sentenced Bush to 12.

The Ontario Court of Appeal dismissed the appeal of sentence finding that the principle of deference to the decision of the trial judge applied:

Appellate deference to a trial judge’s sentencing decision is an appropriate reflection of the trial judge’s uniquely placed position in balancing the various interests at play in the fact-based act of judicial discretion that sentencing is. The sentencing judge represents and speaks for the community that suffers the consequences of the crime in a way this court does not. He or she must choose from the range of reasonable options, a sentence that best fits the offender and the offence, and if this is done, there would be little point in this court repeating the exercise. For these reasons, the sentence chosen attracts deference in this court [para 8].

The Court concluded by saying that although the judge imposed a sentence that was higher than the Crown sought and he should perhaps have indicated to counsel in advance that he was considering doing so, the facts of this particular case “demonstrate why society’s concern about drunk and reckless driving causing death continues to grow.”[para.11]

Against the backdrop of this reference by the Court to the public’s growing intolerance for the entirely preventable carnage on our roads wreaked by impaired drivers, it must be remembered that, while 12 years now represents the high water mark, the maximum sentence is life in prison. Let’s hope the message is received before the Court has to revisit the high water mark again, on even more egregious facts.