Tuesday September 02, 2014

Jail time for driver in drowning case


It is a scenario played out frequently in rural Saskatchewan. A driver comes across a washed out low level river crossing. The decision? Try to cross or turn back.

That is what faced James MacDougall and two friends on July 11, 2010. The men examined the grid road near Springside where a swelling Whitesand River had breached the road. They agreed the pickup truck MacDougall was driving could make it through. He proceeded slowly, but the rushing water was too strong and carried the truck into the river.

MacDougall made it to shore, but his friends did not. Rescue workers found one body in the truck and the other about a quarter mile down the shore hung up on a branch.

Unfortunately, this event was influenced by another scenario also all too frequently played out in rural Saskatchewan and all across the country, drinking and driving.

Police charged MacDougall with two counts of dangerous driving causing death and two counts of driving with a blood alcohol content (BAC) over .08 causing death. On December 18, 2013, a jury found him guilty.

On March 31, Justice J.E. McMurtry sentenced the now 69-year-old man to 30 months on the first dangerous driving charge to be served concurrently with 30 months on the second and 15 months each on the .08 charges.

At trial, the Crown, represented by Andy Wyatt, had argued for a three year sentence based on aggravating circumstances: that MacDougall was grossly intoxicated (an expert for the Crown testified that based on a reading of .172 taken later at the hospital his BAC at the time of the accident would have been .198 to .224); that two people had died; that

he lied to the RCMP about how much alcohol he had consumed; that he had a previous drunk driving conviction in 1982; and that having gotten out of the truck to examine the crossing he had had substantial time to contemplate the danger.

Defence attorney Shane Wagner argued for a conditional sentence to be served in the community. In support of leniency, Wagner submitted many letters of support from family, friends and neighbours including family members of the two victims, who did not want to see MacDougall serve time.

McMurtry acknowledged that there were mitigating circumstances including the strong community support and a pre-sentence report that indicated the defendant was a low risk to reoffend. She noted that, in fact, if it had not been for the leniency sought by the families of the victims, the Crown had intended to seek incarceration for four years.

Ultimately, however, the justice decided recent changes to the Criminal Code made a conditional sentence unavailable to the Court. Furthermore, she said societal attitudes regarding drunk driving and the overwhelming plurality of recent case law supported a sentence of three to four years.

Nevertheless, taking into account the overall circumstances of the case, including MacDougall’s family’s emotional and financial dependence on him, his age and his health, that a custodial sentence at the lower end of the range was warranted.



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