Crown, defence argue jail time for drunk driver in fatal 2019 Whitehorse crash

A sentencing hearing was held in Whitehorse Tuesday for the drunk driver in a 2019 crash that killed two teens, with the Crown and defence disagreeing on how much jail time would be appropriate. 

Anthony Andre, now 24, was found guilty earlier this year of two counts of impaired driving causing death and one count of impaired driving causing bodily harm. 

Andre had more than twice the legal limit of alcohol in his system in the early hours of May 13, 2019, when he drove off Hamilton Boulevard near Falcon Drive, onto the unpaved median and into a light standard. The crash killed passengers Stallion Smarch and Faith Lynn Papineau, who were both 18 and friends of Andre's; a third passenger was seriously injured, while Andre and a fourth passenger were physically unharmed. 

Crown attorney Leo Lane told territorial court judge Peter Chisholm that Andre was facing "the most serious impaired driving offence" and that the situation had been preventable.

"If he had chosen not to drink and drive… [If he had] not gotten behind the wheel, none of this would have happened," Lane said, arguing that the right choice would have been for Andre to stay downtown with his friends after consuming alcohol. 

Lane requested Andre be given a three-year jail sentence followed by a 10-year driving prohibition, citing aggravating factors including the death and injury caused by the crash, Andre's elevated blood alcohol level and the fact that Andre had breached his bail conditions several times. 

Among the conditions was a prohibition on consuming alcohol. 

Lane also cited changes to Canadian impaired driving laws in 2018 that allow for harsher punishments upon conviction, saying they were indicative of the need to crack down on the "tragic," ongoing problem. 

Defence lawyer Malcolm Campbell, meanwhile, said a jail term of 18 months followed by two years' probation and a three-to-five-year driving prohibition was appropriate. 

Campbell argued that increased punishment hadn't solved the issue of drunk driving and suggested the best way to treat it was with counselling — something that would be available through a probation order. 

He pointed to Andre's remorse and a number of Gladue factors, including the impacts of childhood abuse and intergenerational trauma, as other reasons for a lesser sentence. Campbell also highlighted Andre's rehabilitation prospects, noting he was helping to financially support his five-year-old son and hoped to obtain a certificate from Yukon University to advance his employment prospects. 

Campbell said while an appropriate jail sentence would actually be two years plus a day, he thought Andre should be given credit for living at the "structured" environment of Connective — formerly the John Howard Society — for 13 months while out on bail. 

He also disputed the Crown's assertion that Andre consuming alcohol in breach of his bail conditions was aggravating; the deaths of Smarch and Papineau, and then shortly after, his sister, weighed on Andre heavily, and like many others in the community, he turned to alcohol to cope. 

With either jail sentence, Andre would receive 204 days of credit to account for the time he's already spent in custody. 

'A big gap in the hearts of the community'

The court also heard victim and community impact statements from family members and the First Nations of Smarch and Papineau.

In statements read to the court by the Crown, Cathy Smith, Smarch's grandmother, and Anita Papineau, Faith Lynn Papineau's aunt, both wrote about the "unbearable" pain and disbelief over the teens' deaths. 

Anita Papineau, who lives in Edmonton, wrote that she had to tell Faith Lynn's mother that her daughter had been killed in a "horrific and preventable way." 

"She kept saying it wasn't true," Anita Papineau recalled, adding that her sister seemed "lost" the last time she visited. 

"She won't stop screaming and I can't help her." 

Both Kwanlin Dün First Nation and Liard First Nation, of whom Smarch and Faith Lynn Papineau were citizens of, respectively, asked that their community impact statements not be read aloud. 

Summarizing them briefly, Lane said both statements touched on the importance of youth, especially in the colonial context of First Nations having their children forcefully taken from them. Youth in Whitehorse, Watson Lake and Lower Post, B.C., were all heavily impacted by Smarch and Papineau's deaths; Kwanlin Dün's statement said there was "a big gap in the hearts of the community," and alcohol and drug abuse as well as self-harm both increased. 

In Kwanlin Dün's case, citizens also had to deal with the fact that the crash site was near the McIntyre subdivision; some said it served as a place to honour Smarch's memory, while others said it was triggering and a site of "great pain."

'I know you were his best friend'

Two members of Smarch's family, however, also emphasized forgiveness. 

Smarch's father, Gabriel Smarch, told the court in his victim impact statement that his life had been difficult and the only thing that took the pain away was the birth of his son. However, he also spoke about his faith and said he didn't hold anything against Andre or his family.

"I do forgive you for the passing of my son," he said, looking at Andre. 

"God bless you." 

Meanwhile, Stallion Smarch's other grandmother, Diane Smith, told the judge that she believed sending Andre to a penitentiary would do more harm than good. She asked for Andre to be allowed to remain in the territory and be allowed to work on his alcohol issues while still being able to see his daughter and other family members.

She added that she also forgave Andre for her grandson's death.

"I know you were his best friend," she said.

Andre, who was initially too emotional to speak, addressed the court gallery before the proceedings ended.

"There's no easy way to say what happened … I do hold a lot of shame and a lot of guilt," he said, adding that he'd learned a lot about himself over the past three years, including that he needs help. 

Andre said he would live with guilt for the rest of his life, and wakes up every morning with "images" still burned into his mind. He also acknowledged the huge impact he'd had on the community. 

"I'm sorry," he said, looking at the families — including his own — seated in the gallery.

Chisholm will sentence Andre on Thursday.