- Robson Crim
Do as I Say, Not as I’ve Done: The Role of Community Service in Deterrence and Denunciation
Written by Steven Csincsa
Party to the Offence: Introduction
More than a few of us have been there: a party with friends, alcoholic beverages and merriment abound—maybe you’ve drank more than you should? Then again, maybe not. Hours pass, and the answer to that question becomes a resounding “yes.” There I hope the similarity between your experience and Kyle Devos’ would end. What follows in R v Devos is a series of criminally poor decisions culminating in avoidable tragedy: the unintended death of one’s best friend. The case is a rare example of circumstances that are not altogether mitigating for the accused, but nonetheless inspire a lenient sentence well beyond the general recommendation of the courts. The purpose of this blog is to analyze and support the court’s sentencing decision and argue that deterrence of impaired and dangerous driving would be better pursued by expanding the role of community service in sentencing than continuing to rely on incarceration-forward measures that remove the offender from their community.
Far Too Flippant: The Facts
In early April, 2018, 18-year-old Kyle Devos was at a party and left with his 15-year-old best friend. He drank “one or two or three” Bud Light Apples “right before he left.” Devos and his friend were driven from the party to Devos’ truck, which was parked in a field near his home. Devos was operating under a graduated license, and as such was permitted to drive only with zero alcohol in his system. Evidence of “bolus drinking” (a since repealed defense to operating a vehicle with a blood alcohol content of .08 or greater) indicated that he would grow progressively intoxicated as time passed, eventually testing “.08” at the police station roughly two hours after his last drink. He decided to drive in the frozen field and do “donuts,” that is, drive on the ice while spinning his tires fast enough to lose traction and drift the vehicle in a tight circle—decidedly dangerous. Though Devos was wearing a seatbelt, his best friend was not.The truck proceeded to roll, and Devos’ friend was killed. This happened about 10 minutes after leaving the party.
Devos was charged with dangerous driving causing death, impaired driving causing death, and driving over .08 causing death (a charge of criminal negligence causing death and two firearms charges were not pursued by prosecution). Nonetheless his community coalesced behind him: an impressive collection of 129 Character Letters in his favour were submitted to the court. These letters attested to Devos’ role in the community, his exemplary work ethic and propensity for volunteering, as well as his kind nature, empathy, and integrity. The deceased’s parents made a Victim Impact Statement in which they relayed their immeasurable grief, and yet also their support for the young, albeit adult, offender. The Pre-Sentence Report stated there was a “very low risk” of the accused re-offending, he did not have a substance abuse problem, and held a clean criminal record. He was convicted of impaired driving causing death and dangerous driving causing death and sentenced to six months incarceration, three years of supervised probation, and 200 hours of community service. He was acquitted of driving over .08 on grounds of bolus drinking.
Just For Fun: Analysis of Sentencing Principles and Intent of Offenders
The facts leading up to sentencing paint a picture that, while not necessarily “exceptional,” is certainly more than merely sympathetic. The consequences of Devos’ criminal act are undeniably devastating, but the outpouring of support from his community—within which that same devastation reverberates—speaks to a fault wholly outside his regular disposition. The following cases demonstrate incarceration-forward sentencing principles where community support is decidedly absent. In R v Ruizfuentes, 2010, the offender was 41, had 13 prior highway traffic offences, a criminal conviction, was very drunk, drove through three red lights and killed another driver. He received four and a half years incarceration. Here, the court says that the guideline range for first time offenders should be increased to two to five years with the aim of furthering deterrence and denunciation. In R v Lacasse, 2015, the 20-year-old offender was sentenced to six and a half years for impaired driving causing death of his two passengers, and the court makes a point to indicate that as of 2015 “impaired driving offences still cause more deaths than any other offences in Canada.” While these cases are not similar to Devos in community response, they are still examples within the scope of this blog’s forthcoming recommendations.
I wholeheartedly agree that deterrence and denunciation of impaired driving is paramount, and I agree with Judge Leven’s lenient sentence. Where the true denunciation lies is the community service. Devos lives in rural Manitoba, as did I for my first 18 years. While my experience is anecdotal, I nonetheless knew many individuals who made awful decisions regarding dangerous driving and impaired driving—more than I ever met in Winnipeg. Many of my rural friends were also more aware of the range of incarcerations available than my past peers in Winnipeg (law students are a different matter). Yet, this was little deterrent: youthful men and boys are well-known, in my experience, for their invincibility complexes, the idea that “surely this tragic outcome won’t happen to me; I’m special.” A community member speaking to their own tragic outcome is a present source of deterrence and denunciation, whereas removing that person from their community via lengthy incarceration takes them out of sight and out of mind. They may even reach a sort of legendary status in that absence. After all, for a lot of young people, both rural and urban, dangerous driving is fun and impressive, as is getting impaired; Devos is quoted as describing his decision to drive dangerously as “a little bit of spinning just for fun.” A statute can do little to convince a person to not enjoy themselves when their peers are known to. Enlisting those peers post-conviction to speak against their own mistakes serves as an example that can be learned from directly. In cases such as Ruizfuentes where moral culpability is higher, community service should still be tacked-on to whatever punitive measures are seen to not bring the practice of justice into disrepute.
An Ounce of Suspension: A Problem in Need of a Cure
Deterrence and denunciation have been the court’s priority in sentencing since at least the 2010 Ruizfuentes case, and yet statistics from MPI show an erratic rate of impaired driving conviction that does not improve with time: looking to 2012 and 2019, there is a negligible decrease from 577 convictions for impaired driving to 539. In 2018 that number was 630, and a sharp spike in 2016—a year after the incarceration of Lacasse—saw 1,059 convictions. This is not a very strong downward trend, if it can even be called such. A more overtly two-pronged approach to deterrence is appropriate, as appealing to exclusively harsher sentences of incarceration is not having the desired effect. Incarceration should be deprioritized wherever possible and meted with specific requirements of community service.
Judge Leven states “[i]t is the hope of the court that this [community service] will include significant time spent in talking with young people about the importance of safe driving.” Why is this only a hope? While it might be said that discussion of one’s crime might be uncomfortable, it should be recognized that community service is still a punitive sentence and shouldn’t be easy. In fact, discomfort in discussing the depth of one’s mistakes could further the ends of denunciation and deterrence by illustrating the sincerity of their regret. I would like to see judges issuing more specific forms of community service where it is appropriate. In the case of Devos, that means specifically requiring a significant portion of his 200 hours of community service be spent talking to young people in his local communities. If it is currently outside the purview of the judiciary to specify which form(s) of community service might be required, then that purview warrants expansion. Where a community is not as supportive as in Devos, tacked-on community service might be more appropriate to neighboring communities, rather than the affected community.
The idea of community-based sentencing is not new: we can look to prior reports to see that it is a promising alternative to lengthy incarceration. Canada issued a report on community-based sentencing which acknowledged that jail-time is not a more effective deterrent than intermediate punishments such as intensive surveillance or electronic monitoring, making the expense of incarceration seem far less appealing. In similar cases to Devos, where the offender has no prior convictions, is remorseful, and is seen as unlikely to re-offend, the court would do well to consider community service as the primary punitive measure. The only argument against this is where it would adversely affect the victim, or in this case, the victim’s family, to have the offender present in the community. In cases where this is relevant, this can be at least partially mediated by sanctioning the offender from contacting the victim or victim’s family.Where this is not enough, community service can be relegated to neighboring communities (as stated earlier). This is most problematic in cases involving violent, purposeful harm, while the cases within the recommendations of this blog are impaired driving, dangerous driving, and impaired and/or dangerous driving causing death, which in most cases involves accidental death (as the mens rea need not extend to the act causing death) and no malicious intent between offender and victim.
Let’s Not Spin Our Wheels: Conclusion
Impaired and dangerous driving is a bane on public welfare. Every step should be taken to denounce and deter society from engaging in it, but we shouldn’t continue to rely on incarceration as the primary means of deterrence as we are not getting our intended results. While every community cannot be addressed at once, requiring offenders who have adversely affected a community to reach out to its members and condemn their own past behaviour would be a pertinent means of ensuring their peers and younger generations receive appropriate admonition from a relatable source. The halls of justice and punishment are far removed from many communities, both figuratively and literally. Community service provides a means of bringing the evidence of penalization closer to home. While the decision in Devos might be appealed, as this is a King’s Bench decision, it is my firm belief that the current sentence represents a sensible trajectory in dealing with impaired and dangerous driving by means of community service.
 R v Devos, 2022 MBKB 185 at para 1 [Devos].  R v Devos, 2021 MBQB 189 at para 11 [Devos 2021]; Devos, supra note 1 at para 3.  Devos 2021, supra note 2 at para 4.  Ibid.  Devos, supra note 1 at paras 5–6, 4.  Ibid at para 1.  Ibid at para 3.  Ibid at para 1.  Devos 2021, supra note 2 at para 7.  Ibid.at paras 11, 10.  Devos, supra note 1 at para 9.  Ibid at para 11.  Ibid at para 13.  Ibid at para 1.  Ibid at paras 7, 80.  Ibid at para 6.  Ibid at paras 50, 73, 76.  Ibid at para 19.  Ibid at para 22.  Ibid at para 20.  Ibid at para 17.  Ibid at para 55.  Devos 2021, supra note 2 at para 7.  Manitoba Public Insurance, “Traffic Collision Statistics Report” (2012), online (pdf): Manitoba Public Insurance<mpi.mb.ca/Documents/TCSR2012.pdf> [perma.cc/D5E8-QQH9] at vi; Manitoba Public Insurance, “Traffic Collision Statistics Report” (2019), online (pdf): Manitoba Public Insurance <mpi.mb.ca/Documents/TCSR2019.pdf> [perma.cc/9APR-6YL3] at vi. Manitoba Public Insurance, “Traffic Collision Statistics Report” (2018), online (pdf): Manitoba Public Insurance<mpi.mb.ca/Documents/TCSR2018.pdf> [perma.cc/M9F9-9YFP] at vi; Manitoba Public Insurance, “Traffic Collision Statistics Report” (2016), online (pdf): Manitoba Public Insurance <mpi.mb.ca/Documents/TCSR2016.pdf> [perma.cc/P33M-MR53] at vi.  Devos, supra note 1 at para 80.  Canada, Policy Centre for Victim Issues, Community-Based Sentencing: The Perspectives of Crime Victims, by Kent Roach & Julian V Roberts (Ottawa: Department of Justice Canada, 17 November 2004) at 5.  Ibid at 3.