R. v. Grenke, 2012 ABQB 198

Court of Queen ’ s Bench of Alberta Citation: R. v. Grenke, 2012 ABQB 198 Date: 20120326 Docket: 100014612Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael Jacob Grenke Defendant _______________________________________________________ Oral Reasons for Sentence of the Honourable Mr. Justice A W. Germain _______________________________________________________ 1. Introduction [ 1 ] On March 24, 2011 I convicted Mr. Grenke of one count of dangerous driving causing death ( Criminal Code , R.S.C. 1985, c.

C-46, s. 249(4)), plus another count of dangerous driving causing bodily harm ( Criminal Code , ss. 249(3)). At that same time I acquitted him on other charges of impaired driving ( Criminal Code , ss. 253(1), 255(2) - (3) ) and driving with a blood alcohol level over the allowable concentration of 80 mg of alcohol per 100 mL of blood ( Criminal Code , ss. 253(1)(a), 255(3.1) ). 2. Background

[ 2 ] On August 19, 2009 Mr. Grenke was driving a high powered automobile. He left a bar on Jasper Avenue in downtown Edmonton with two companions, walked a short distance to where his vehicle was parked on 107 th St. close to Jasper Avenue, drove the vehicle out of its parking spot, and accelerated northbound in an unrelenting way to the next intersection at 102 nd Ave. The vehicle then went out of control, travelled across the centerline of the street, began to turn in a counterclockwise motion, and slammed into a tree killing the front passenger, Mr.

Martin Schimmel, and also significantly injuring the rear passenger, Mr. Steven Capp. [ 3 ] I concluded and indicated orally in my judgment relating to the conviction as follows: The dangerous driving here is the intentional uncontrolled application of maximum power in an urban area with intersecting cross streets. When Mr. Grenke drove his vehicle at these unrelenting speeds he was operating a motor vehicle in a manner that represented a marked departure from the conduct expected of a reasonable driver. This driving fell significantly below the standard expected of a reasonably prudent driver.

I conclude that it was an alcohol induced attempt to show off the maximum performance of this vehicle and it resulted in tragic consequences. So egregious was this driving and so dangerous was it, that I have no doubt that the Crown has proven beyond a reasonable doubt both the actus rea and the mens rea of dangerous driving as defined by the Supreme Court of Canada. [ 4 ] I was satisfied that liquor consumption influenced this outcome because it lowered Mr. Grenke’s inhibitions and fueled his desire to drive this high-performance vehicle in a dangerous way. [ 5 ] Mr.

Grenke’s sentencing was adjourned because the Defence requested a pre-sentence report. The Crown also requested a forensic assessment to see if that would cast some light on what would cause a young man of obvious economic and societal advantage to drive a high-performance vehicle in such a dangerous and reckless way. [ 6 ] There has been significant delay between the conviction and the sentence. Some of this delay was as a result of structural delay in the criminal justice system, particularly in completing these necessary reports. Some further delay was requested by counsel.

I want to put on the record that it is not the norm that this kind of significant delay occurs between conviction and sentence. The Criminal Code discourages it. Delay on this scale impedes the healing process of the victims and postpones the rehabilitation and punishment of a convicted person. 3. The Position of the Parties [ 7 ] It is a submission of the Crown that the offense for which Mr. Grenke was convicted was egregious and that he must receive a prison sentence in a penitentiary. In their submission they suggest that because of the nature of the offense and Mr.

Grenke’s failure to learn lessons from his prior brushes with the law that the range fall between a low of five years to a high of six years. [ 8 ] It is the position of defense counsel that Mr. Grenke should received a jail sentence of two years less one day so that his time in custody may be served in a provincial institution, and that Mr. Grenke, if the court feels that it is appropriate, also undergo further rehabilitation and supervision by being placed on three years of probation following that jail sentence. [ 9 ] Both counsel agree that a prohibition of driving privilege is necessary.

The Crown suggests the maximum of ten years prohibition that commences when the prison sentence ends. The Defence feels that three years after the end of the prison sentence is appropriate. The Defence submission on the driving suspension is based in large part on the fact that Mr. Grenke has been prohibited from driving since his release on bail in 2009. Both counsel agree that a DNA sample should be provided, therefore I make that part of this sentence now as it is not controverted. 4. Analysis [ 10 ] Against that background I now discuss the sentence I propose to impose on Mr. Grenke.

[ 11 ] First, I recognize that despite the significant power given judges, we have no power to bring back the life of a loved one.

All I can do as both a parent, and a judge, is extend my sympathy to all loved ones affected greatly by this tragedy, and offer my condolences. [ 12 ] I was moved deeply by the victim impact statement that once again graphically points out that when a life is taken through a senseless crime or an individual’s life is altered irrevocably by serious injuries sustained in a senseless crime, the pain radiates out from the epicenter of that criminal activity, like the ripples caused by a pebble thrown into a still body of water. As these ripples of pain radiate outward they affect many people in many ways.

Here, the emotional loss sustained byBob Schimmel and Elaine Schimmel, the parents of Martin Schimmel, and their surviving son Chad, is palpable, definable, and understandable. I particularly note their quiet struggle to get through the delivery of their statement in court and the grief they describe for their son Chad. Chad has special needs, and Mr. Martin Schimmel was to have fulfilled those needs when Bob and Elaine became unable to do so.

Those plans have been nullified by the death of their son. [ 13 ] I recognize that there is no sentence that I can impose that will lift the pain and suffering from those affected by this situation. I can only go forward and impose what I conclude is a fit sentence based on the rule of law. [ 14 ] Despite the latitude that I have been given in crafting and imposing a fit sentence, that discretion is not decided in a vacuum. I have my bosses also. One of them is called the Supreme Court of Canada, the other is the Alberta Court of Appeal.

I also have the benefit of the wise thinking of other competent men and women who make up the judiciary across Canada and who have made judicial decisions similar to the one I must make. [ 15 ] I also have the law flowing from our elected government. This is found in the Criminal Code . It was that Criminal Code that set out the essential elements or ingredients that allowed me to find Mr. Grenke guilty of dangerous driving causing death and dangerous driving causing bodily harm, and also obliged me to acquit him of the four other counts. [ 16 ] The Criminal Code of Canada also shapes my sentencing. In overview

section 718 of the Criminal Code indicates that the sentencing judge must be mindful of the purpose of sentencing and its principles. Purposes which must be weighed include punishment and denunciation ( s. 718 (a)). They include deterrence ( s. 718 (b)). Another purpose of sentence is rehabilitation ( s. 718 (d)), and I cannot ignore the societal advantage of rehabilitating someone even guilty of an offense of this magnitude. I must also acknowledge the harm done to victims and the community ( s. 718 (e)). [ 17 ] All of the sentencing principles and objectives set out in

section 718 of the Criminal Code are not easily applied in every case. These objectives are not always compatible, so any sentence is a kind of balancing exercise. A judgment focused on punishment and deterrence may result in greater imprisonment than one overly focused on rehabilitation. The principles must be balanced against the circumstances of the crime and the character and background of the offender, Mr. Grenke.

However both the Supreme Court of Canada and our Alberta Court of Appeal have pointed out repeatedly that deterrence, through punishment, is an important factor in sentencing for this type of activity: R. v. Fox , 2001 ABCA 64 at para. 27 , 277 A.R. 298; R. v. Hindes , 2000 ABCA 197 at para. 43 , 261 A.R. 108. [ 18 ] The Criminal Code also guides me by setting out a maximum sentence which this crime can attract. The maximum jail sentence for dangerous driving causing death is 14 years imprisonment. For dangerous driving causing bodily harm it is 10 years.

Canadian legal authorities make it clear that it is rare that this maximum is handed out, nor here has the Crown asked for this. [ 19 ] The many case authorities submitted by both Crown and Defence illustrate the range of sentences that are handed out. Some of these cases also reflect greater punishment than the Crown suggests here (for example R. v. Gratton , 2003 ABQB 882 , 356 A.R. 334), while others administer more lenient punishment then the Defence acknowledges would be fair in this case (for example R. v. Chikie , 2011 ABQB 420 ).

One sees that dangerous driving conduct falls on a spectrum or continuum of dangerous driving patterns that ranges from misconduct only slightly greater than driving with undue care and attention, through to deliberate, persistent, and aggressive misconduct with persistent pathological recklessness (for example R. v. Regier , 2010 ONSC 1963 , 93 M.V.R. (5th) 264, affirmed 2011 ONCA 557 ), This most blameworthy end of the spectrum is often coupled with other influences, such as in this case alcohol, that fuels a feeling of invincibility and reduces caution, attention and prudence.

The cases often address a range of moral blameworthiness.

[20] From a practical point of view it is clear in this case that Mr. Grenke must go to jail so there is no point reviewing the veryfew unique and isolated cases where often an inexperienced driver, under no aggravating influences, drives in an objectively dangerouslyway that leads to a tragic consequence. In those cases the courts have found the compassion to craft a sentence without any jail, or with avery short jail sentence. That is not this offense.

In our case, it is very clear that the Defense can do no better than their submission onbehalf of their client for a provincial jail sentence and probation. [21] Between the Defense and Crown many sentencing cases involving death through vehicular crime were submitted to me.Others exist that were not supplied. Each case is extremely fact specific and while some generalization may be appropriate, reciting anddiscussing the individual cases provides no useful purpose. I accepted that the outcomes in some of the reported jurisprudence is notreconcilable.

This is inevitable because of the wide range of circumstance that can lead to a finding of dangerous driving and the relateddriving offenses. Nevertheless, the submissions of both counsel are grounded in the reality that the sentence they submit to beappropriate has been handed out in other cases. So what jail time sentence should Mr.

Grenke receive in the proposed range of two yearsless 1 day and 6 years? [22] The vast bulk and cluster of cases, including those in Alberta, create a sense that the jail time for a motor vehicle offencecausing death or injury is commonly between three and four years (for example R. v. Baddeley, [1991] 113 A.R. 253, 29 M.V.R. (2d) 17(Alta. C.A.); R. v. Cartwright (1995), 1995 ABCA 276 , 169 A.R. 315, 27 W.C.B. (2d) 593 (Alta. C.A.); R. v. Larson, 1999ABCA 352, 250 A.R. 147). But generalization is dangerous, as there are always exceptional circumstances and offenders (for example R.v. Gratton and R. v.

Chikie). [23] Repeatedly our Canadian courts including our Alberta Court of Appeal have emphasized that the crafting of a fit sentence forthis type of motor vehicle offense must focus on denunciation and deterrence: R. v. Fox, at para. 27; R. v. Hindes, at para. 43. [24] By example, in 1994 the Supreme Court of Canada in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at 269,35 C.R. (4th) 201 made this observation: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [25] Although the Supreme Court of Canada was speaking specifically of the offenses of drunk driving, and having a blood alcoholcontent of over 80 mg per 100 mL, their comments are equally applicable to any of the motor vehicle offenses that involve many of thesame elements. Many dangerous driving cases have some evidence of some consumption of alcohol or drugs even when thatconsumption does not amount to proof of the crime of impaired driving.

In our particular case it is clear that many hours after thecollision Mr. Grenke still had alcohol in his blood stream and also a trace of marijuana although the actual time of the ingestion of thatlatter substance cannot be identified with specificity. It is also clear and I found factually that he had been at two bars and consumedalcohol before he made the final decision to take the wheel of his automobile and drive as he did. [26] In the case R. v.

Rhyason, 2007 ABCA 119, 404 A.R. 191 the Alberta Court of Appeal discusses the social implications ofsentencing in this type of offense where a driver was convicted of impaired driving causing death and driving with a blood alcoholconcentration over 80 mg per 100 mL. Although impaired driving causing death has as a maximum sentence of life imprisonment, whichis greater that the maximum for dangerous driving causing death, the comments of the court are still applicable. [27] That driver struck and killed a pedestrian in a crosswalk.

The court made certain societal observations about the prevalence ofthis type of offense in our society, and how the various sentencing factors can be reconciled. [28] First the Alberta Court of Appeal (para. 29) pointed out proportionality of the sentencing as a factor. They stated: ... a sentence is to reflect the gravity of the offense and the degree of responsibility of the respondent. The consequences here were theworst (death). Though the respondent had no intention to hurt anyone, he made a deliberate decision to drive after drinking for manyhours.

That observation also applies here. [ 29 ] Further, the Alberta Court of Appeal emphasized denunciation (para. 31). They stated: This is important for this crime. Denunciation is especially needed to combat two still common views: that a death like this is a mere accident, and that the victim was as much to blame. Denunciation is also important in view of Canada’s and Alberta’s past lax attitudes to drinking and driving. Drinking and driving must be seen as a true crime, and no longer be brushed off as a mere non-deliberate regulatory offense.

It is my conclusion that dangerous driving must also fall into that category. [ 30 ] The Alberta Court of Appeal also focused on general deterrence - court sanction that is to deter others who might not identify themselves as criminals (para. 32): This is also important. Impaired driving differs from most crimes. Most who commit this crime, or are tempted to, come from a respectable milieu where other crime is rare, and where jail shocks them and shames them.

They tend to plan their lives, and are not, on the whole, impulsive or shortsighted. [ 31 ] Aggressive sentencing can deter individuals who would not identify themselves as potential criminals because it encourages those persons to think twice before they intentionally drive a vehicle in an dangerous fashion. [ 32 ] Boiling down all of the cases that have been submitted to me by both Crown and Defense one can pick up some trends or thoughts that other judges have shared.

My list is neither exhaustive nor all inclusive. [ 33 ] The inconsistencies and wide range of sentence options found in the sentences handed out for driving offenses, where death results, flow from the reality that the facts and circumstance of the fatal incident differ in each case, as does the background and circumstance of the offender. [ 34 ] I outline some commonsense propositions on sentencing in this area: 1. while jail sentences of less than two years exist, appeals taken from these sentences often result in the sentence being increased to a three to four year range; 2. lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; 3. an early plea of guilt, as a sign of remorse, is often mentioned in lower sentences but I hasten to add that an accused should not be treated more harshly, than the appropriate range of sentence, for exercising their constitutional right to a fair trial; 4. where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher; 5. where an offender is a youthful and less experienced driver, more emphasis may be placed on rehabilitation and less on punishment and deterrence; and

6. where there are multiple convictions the courts should ensure that no one gets a free crime simply because one offense is eclipsed with a more serious one, but, in total and globally the sentence should not be excessive; the sentencing levers of consecutive and concurrent sentences may be used to ensure that, globally, the sentence is appropriate. 5. The Circumstances of the Offence [ 35 ] Mr. Grenke’s driving pattern was extremely dangerous, though short-lived. Egregious conduct is not an unreasonable descriptor.

It was intentional, it was planned, it was deliberate, and it was highly dangerous based on the environment in which the crime was committed and the manner in which Mr. Grenke accelerated his vehicle to highway speeds while driving in downtown Edmonton. [ 36 ] Mr. Grenke intentionally and deliberately drove at maximum acceleration rate until finally, despite the sophistication and quality of the vehicle, it could not stay on the road. In a one block distance he achieved speeds of over 100 km an hour in a downtown city street. The circumstances of this case reflect the risk and danger. Mr.

Grenke’s dangerous driving pattern is obvious and self- evident, and the circumstances of the offense are grave. 6. Mr. Grenke as an Offender [ 37 ] Mr. Grenke has never been to jail before, and it is always difficult and somewhat rare for an individual to embark on a federal penitentiary sentence in their first jail sentence. However, a serious crime can attract serious time. Mr. Grenke has previously received a jail-like sentence. Mr. Grenke pled guilty to possession of a narcotic for the purpose of trafficking. That offense had occurred nearly two years before the ultimate disposition of it in the courts.

He received a conditional sentence order. That is in fact a jail sentence that the court allows to be served in a community instead of a brick-and-mortar jail. In effect, Mr. Grenke has already been to jail for a crime involving narcotics. That ‘jail like’ sentence ended June 24, 2009. On August 19, 2009 Mr. Grenke killed Mr. Schimmel. [ 38 ] In addition, Mr. Grenke as an offender, has had brushes with the law as it relates to drinking and driving. That is also an aggravating circumstance in this case.

He settled an allegation of impaired driving in which a police officer observed him speeding and later driving on the wrong side of a street in Kelowna B.C. at 2:45 A.M. in snowy driving conditions. The date of that alleged offence was December 2, 2005. The charge was settled on June 27, 2007 on the basis of a plea of guilt to a highway traffic offense of careless driving. [ 39 ] These are not the only instances where Mr. Grenke drank and drove and was caught by police.

He has also received one additional 24-hour suspension that result from the suspicion of the consumption of alcohol and driving, but in circumstances where the crime of impaired driving or having a blood alcohol concentration over 80 mg per 100 mL could not likely succeed. [ 40 ] Last, Mr. Grenke exhibits absolute disregard for speed limits imposed on users of the road to protect society and to keep drivers safe on the road. His record in this regard is, frankly, an insult to the administration of justice. Excessive speed played a role in my finding that Mr.

Grenke was driving dangerously and thereby caused the death and injury that followed. In a careful and comprehensive analysis learned Crown attorney has concluded that since Mr. Grenke received his driver’s license, he has been ticketed for 26 driving offenses, 18 of them in Alberta, the remaining eight in British Columbia. [ 41 ] Of the 18 in Alberta, 14 were in relation to speeding. The result was three demerit driving suspensions. The first in 1993 for 31 days, the second in 1994 for 189 days, the third in March of 1997 for 39 days. In short, Mr.

Grenke has lost his license in Alberta by virtue of demerit suspensions for a total of eight months and 19 days. In British Columbia four of his eight driving offenses also related to speeding. This led to two demerit suspensions: one of 90 days in late 2005 into early 2006, the second in late 2007 into the spring of 2008 for 120 days. [ 42 ] Despite this extensive traffic record I must not lose sight of the fact, as Defence correctly points out, that may of these violations occurred at the front end of Mr. Grenke’s driving career.

Punishment for everything, whether it be the drug charge, or the substituted care and control charge for one of impaired driving, or the demerit suspensions for the speeding and road safety violations, all lag the actual occurrences of the offenses. It is therefore fair to say that Mr. Grenke’s statistical brushes with the law may have been on a downward direction as he aged, but this still does detract from the totality of them.

[ 43 ] Mr. Grenke is now 36 years of age. He was over the age of 30 on the date of the offense. He is not a youthful first offender, and I am obliged to sentence him as an individual with a drug and regulatory record that is unenviable. [ 44 ] Offsetting this, Mr. Grenke presents with many positive attributes. He has a college education, is articulate and well spoken, able to earn a living, and functions in society at a high performance level.

He is kind and caring to his family, and has been supportive of his dad through his dad’s health care issues. [ 45 ] He has expressed remorse for his crime both in writing and orally today in this courtroom. He has elected to write an apology letter to the victims. One victim has forgiven Mr. Grenke and hopes that after this is over that they can become friends again. [ 46 ] It is also clear that Mr. Grenke is supported by a loving and caring family. They attend in court on his behalf, they offer moral support, and further offer and express sympathy to the victims in this case. Mr.

Grenke has also filed many supporting letters that reflect the image of a responsible community leader willing to assist others less fortunate in the community. The letters indicate that he is sensitive, in a long-term relationship with a supportive partner, and willing to help others in the community. The letters express the hope and the belief that due to the seriousness of this tragic crime Mr. Grenke learned his lesson, and his progress towards self-rehabilitation significant and has already commenced. [ 47 ] In short, as the Court observed in the R. v.

Rhyason case, we have here an individual who does not fall in the ordinary milieu of criminal activity. 7. The Professional Reports [ 48 ] In addition, to assist me in crafting a fit and proper sentence, I have had the benefit of three professional reports prepared in this case. The first is a pre-sentence report dated May 27 2011, the second an October 9, 2011 forensic assessment report provided by Alberta Health Services and authored by forensic psychiatrist Dr. Curtis Wood. The third professional report, dated April 11 2011, is over the signature of George Pugh, a psychologist with whom Mr. Grenke attended.

All have become exhibits in this case. [ 49 ] Also Mr. Grenke has attended on his own volition, post-crime, an addiction assessment and some addictions treatment sessions and attendances. . 8. The Pre-sentence Report [ 50 ] The pre-sentence report was completed in this case by Probation officer Ron Allen. The report is generally favorable. On page 8 of the report the author states: ... considering Mr.

Grenke is in a stable situation, he is very remorseful for his actions and accepts full responsibility, has a modest criminal history, has previously complied with the directions of the court, had shown some improvement in his driving habits in recent years, and expresses a willingness to comply with the court’s direction he may be considered a suitable candidate for a form of community disposition. [ 51 ] Mr.

Allen contemplates and recommends either a community sentence order or a combination of jail and probation. [ 52 ] Crown counsel makes an argument that the pre-sentence report must have been involved some minimalization of Mr. Grenke’s prior record in the area of drinking and driving, and speeding. Also troubling is the treatment of Mr. Grenke’s brush with the law, the conviction for possession of a narcotic for the purpose of trafficking, which resulted in a one year house arrest jail sentence. Mr. Allen reports Mr. Grenke describes this offense as his as being “at the wrong place at the wrong time”.

While learned Crown counsel is suspicious of this, and about Mr. Grenke’s involvement in this expression of attitude, this must be offset by the fact that the probation officer, who is experienced and constantly called upon to advise the court, and deals with these issues on a daily basis, and not easily tricked or misled, did conclude that both Mr. Grenke is remorseful and could well be sentenced at the lower end of the spectrum.

9. The George Pugh Ph.D Report [ 53 ] George M. Pugh’s report is a psychological assessment. It was Dr. Pugh’s conclusion on page nine of that report : Mr. Grenke remains very remorseful and deeply saddened by the death of his friend and the injuries brought to bear on the other passenger. He acknowledges that prior to the accident he lacked a clear direction in his life. He believes that he now has found himself and set a more responsible course for the future. In my opinion, he is not a danger when in control of a motor vehicle and therefore not a danger to society. Mr.

Grenke in my opinion has matured with the deep reflection that the accident brought to bear upon him. He stands respectfully before the court willing to accept the consequences of his actions to take on with dignity his debt to society. [ 54 ] The more objective elements of the report include the usual tests for aggression, personality assessments, and intellectual assessments. These were performed and it was determined that Mr. Grenke, from an intellectual point of view, approaches high average and that he has a healthy personality with no problems of significance.

The psychological testing indicates normal functioning and Mr. Grenke does not score highly on measures of aggression or on the

summary measure of antisocial conduct. Dr. Pugh asserts: He does not present as criminally minded but rather as a law-abiding citizen, who made tragic errors in judgment. As well, prior to the accident, he used alcohol when socializing. He related that he just drank socially and not excessively. [ 55 ] With respect, Mr. Grenke’s prior record and his early history would not appear to support Dr. Pugh’s conclusions.

An individual who has 24-hour suspensions for alcohol and automobile use, and who settles another impaired driving risk by pleading guilty to driving without due care and attention is inconsistent with Mr. Grenke’s self-report that his drinking was social and not excessive. Further, the driving pattern exhibited by Mr. Grenke on the day in question and his repeated speeding indicate a significant level of aggression, manifested as a heavy throttle foot. [ 56 ] I accept the Crown’s submission that it appears Mr. Grenke did not share with Dr. Pugh his Alberta driving record. Despite these limitations of Dr.

Pugh’s report it is also generally and highly positive. 10. The Alberta Health Services Report [ 57 ] The final report prepared and marked as an exhibit in this case is the forensic assessment completed by Dr. Wood. Dr. Wood concludes on page 19 of his 21 page report that Mr. Grenke does not manifest features suggestive of a serious mental disorder and does not appear to fulfill the criteria for either an alcohol substance use disorder or a clinically significant personality disorder. [ 58 ] Dr. Wood concludes that Mr. Grenke is not criminal minded in the sense of being antisocial or psychopathic by nature. Dr.

Wood’s report is very insightful because he indicates on page 20: ... that it is apparent that Mr. Grenke’s character has always been typified by confidence, gregariousness, passion about work and family, ambition, and initiative. Be that as it may, pre-morbidly ... I surmise that he evidenced situational dependent narcissistic impairment to a moderate degree, in part represented by egocentricity, entitlement, and heedless attitudes.

I believe that he tended to focus his attention on competitive pursuits with materialistic and self-centered objectives, and had a proclivity for engaging in behavior that might be construed as impetuous, sensation seeking, juvenile, and reckless. [ 59 ] Dr. Wood however feels that Mr. Grenke’s risk of criminal recidivism is very low, and that he is a suitable candidate for community supervision and does not require any particular therapeutic interventions. Dr. Wood believes that his remorse and expressions of regret are genuine. Dr. Wood’s overall report is positive.

[ 60 ] Many letters of support written on Mr. Grenke’s behalf by family members, friends and acquaintances were marked as exhibits. They have written impassioned pleas for mercy, arising from this “accident”. They just don’t get it. Their friend and loved one was not just in an unfortunate accident. He had not learned from society’s previous attempts to rehabilitate him and change his attitude.

He deliberately and intentionality drove a high powered vehicle to its inevitable result - a serious collision that causes a death and another serious injury. [ 61 ] To apply the nomenclature “accident” to what happened here is a misnomer and attempts to sanitize that which cannot be sanitized. That it took this tragedy and this death to perhaps now arrive at a point that Mr. Grenke has seen the error of his ways, at 36 years of age, is itself a tragedy. [ 62 ] Defence counsel suggest that Mr.

Grenke should get credit by a somewhat slight reduction in sentence on the basis of his stringent pre-trial and pre-sentence bail conditions. While that concept exists in the Canadian legal jurisprudence, I conclude here that his bail conditions were not particularly stringent, nor do they greatly interfere with his mobility in Canada or his lifestyle, save and except for the restriction of his driving privilege. Nor should he get credit for the fact that he appears to have performed satisfactorily while on bail. Frankly, this is expected of everybody who is permitted bail. [ 63 ] I return to where I started.

I must balance several sentencing principles. In my view, but for the positive pre-sentence report, the positive Alberta Health Services report, the positive report from Dr. Pugh, a sentence at the absolute highest range suggested by the Crown or even higher would have been a probable outcome in this case. [ 64 ] These reports and Mr. Grenke’s positive attributes do require a lower sentence when balancing of the factors of punishment, deterrence, and rehabilitation. However, the seriousness of the crime and the background of Mr.

Grenke as an offender do not allow me to accept learned Defense counsel’s request for time served in a provincial institution. Despite the positive reports, family and community support, these can neither trump nor eclipse in this balancing process the seriousness of the offense and the circumstance of Mr. Grenke. He must go to a federal penitentiary. [ 65 ] Mr.

Grenke, would you please stand. [ 66 ] For the crime of dangerous driving causing death I sentence you to a period of four and one half years in a federal penitentiary. [ 67 ] For the offense of dangerous driving causing bodily harm I sentence you to one year in a federal penitentiary, with both of these sentences to run concurrently, that is together. This sentence for dangerous driving causing bodily harm would have been higher but for the submission of the Crown that it should be only one year.

I accept that in recognition of the global sentence of four and a half years; it does not add anything. [ 68 ] I also prohibit you from operating a motor vehicle on any road, highway, or public place for a period of five years, plus the time of your jail sentence. That period of time of five years, in other words, will start when you are released from serving the prison portion of your sentence. [ 69 ] I have already directed that you are to provide a sample of your DNA to be retained by the law-enforcement. [ 70 ] The Defence ask the victim fine surcharge be waived, the Crown does not object.

The victim fine surcharge is waived. The exhibits are forfeit after all appeal periods have expired. The driving prohibition and DNA order applies to the charge of the dangerous driving causing death. Mr. Grenke’s driver’s license has previously been surrendered. [ 71 ] I want to conclude by thanking Counsel for your efforts in respect to your respective positions. Heard on the 9 th day of March, 2012.

Dated at Edmonton, Alberta this 23 rd day of March, 2012. A W. Germain J.C.Q.B.A. Appearances: Domina Hussain Alberta Justice for the Crown Robert H. Davidson, Q.C. Davidson Gregory for the Defendant