R v Didechko, 2016 ABQB 552

Court of Queen ’ s Bench of Alberta Citation: R v Didechko, 2016 ABQB 552 Date: 20161005 Docket: 130836984Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kenneth Didechko Accused _______________________________________________________ Memorandum of Sentence of the Honourable Mr. Justice A.W. Germain _______________________________________________________ I. Introduction [ 1 ] On July 4, 2016, Mr. Kenneth (“Ken”) Didechko was convicted under the Criminal Code , RSC 1985, c C-46 with: 1. Obstructing justice by giving a false statement: Criminal Code , s 139(2); and 2.

Failure to stop at a scene of an accident resulting in death: Criminal Code , s 252(1.3). [ 2 ] He was acquitted of: 3. Unlawfully causing bodily harm: Criminal Code , s 269; and 4. Dangerous operation of a motor vehicle causing death: Criminal Code , s 249(4).

II. Background Facts [ 3 ] Background detail can be found in R v Didechko , 2016 ABQB 376 . However, for completeness, I incorporate a brief

summary of the key factual findings. [ 4 ] On October 13, 2012, Ms. Faith Jackson, an 18-year-old female, was on the driving portion of 82 nd Street in Edmonton around the intersection of 141 st Avenue. At 3:06 AM, she was struck by a 2012 Dodge Charger [the “vehicle”]. This vehicle was owned by an Alberta car dealership, and had been assigned, the evening before, to Mr. Ken Didechko as his demonstration vehicle. The vehicle was located and identified about nine hours later at 11:30 AM by a civilian and reported to the Edmonton Police Service [“EPS”].

The vehicle had been abandoned off the road in North East Edmonton, on Fort Road near Meridian Street. [ 5 ] I found as a fact that Mr. Didechko had been driving the vehicle when it struck Ms. Jackson, leading to her death. Rather than stop, supply details and provide assistance, Mr. Didechko fled the scene. Immediately after fleeing, he made a call to his brother, Tom, backtracked to the scene, made a second call to his brother, and then parked the vehicle at his father’s home. The next morning, he got up, took the vehicle to Northeast Edmonton and abandoned it close to Meridian Street on Fort Road.

From that location, utilizing his cell phone, he then commenced an elaborate attempt to mislead the police by reporting the vehicle stolen. [ 6 ] I was suspicious that Mr. Didechko fled the scene because he was afraid that if he stayed he could be over .08 and ran the risk of criminal jeopardy of causing death while under the influence of alcohol. I was also highly suspicious that a combination of drinking and driving, moderately elevated speed, and the reality he was on his phone prior to the impact could possibly amount to dangerous driving causing death.

However, I was unable to conclude that beyond a reasonable doubt. An additional count of causing bodily harm also resulted in an acquittal. [ 7 ] Sentencing was adjourned to obtain a presentence report which has been completed and has been filed as an exhibit, as have a group of support letters. Victim impact statements from close family members of Ms. Faith Jackson were read into the record and marked as exhibits. [ 8 ] These remarks reflect my thought process on a fit and proper sentence to be applied to Mr. Didechko. III. The Parties’ Positions 1.

The Crown [ 9 ] The position of the Crown is that these two very serious charges require, whether concurrent or consecutive, a global sentence of a penitentiary term from 3 to 4 years, a 5 year driving prohibition, and a DNA sample. A conditional sentence order is not appropriate. 2. The Defence [ 10 ] The position of the defense is that Mr.

Didechko, with a favorable background, family support and a supporting presentence report, should be sentenced to a global period of imprisonment of two years (less one day) to be served in the community as a conditional sentence order [CSO]; which at the time of the offence was statutorily available. Although Mr. Didechko fled the scene, the unique circumstance of the immediately available paramedics meant that Ms. Faith Jackson was not delayed in the treatment for her injuries, by flight on the part of Mr. Didechko.

Further, the two counts blend together into one continuous criminal activity, so the sentences should be concurrent. Last, the driving prohibition should have time deducted from it due to the restrictive bail condition requiring that Mr. Didechko not be behind the wheel of a vehicle. IV. General Sentencing Framework [ 11 ] The general sentencing framework in Canada is shaped by

section 718 of the Criminal Code . This

section of the Code has been drafted and modified over the years to ensure that trial judges consider relevant sentencing factors. The

section is the legislative intent to ensure judges consider relevant legal concepts as well as public and social policy concerns in crafting fit and proper sentences. [ 12 ] The stated purpose of sentencing is: “... to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have [certain objectives]”.

A proposed 2015 amendment changed the wording slightly by identifying the protection of society, although arguably both before and after the amendment, the protection of society is an implicit aspect of sentencing. The amendment postdated the date of these offenses and Mr. Didechko must be sentenced on the basis of the wording of

section 718 at the time of the offense. Likewise, around the time of this offence, the rules relating to CSOs – imprisonment in the community –were in flux so that today, a CSO is not available for the crime of hit-and-run causing death as the maximum sentence of life imprisonment prohibits CSO eligibility. The Crown concedes however that the new regime had not yet become the law when this crime occurred and that a conditional sentence order is statutorily available. [ 13 ]

Section 718 continues with a list of purposes which are not always reconcilable, but include the sentencing objective of denouncing unlawful conduct, to deter the offender and other persons from committing offenses, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims, and the community.

[ 14 ] Other sentencing requirements ensure the least, but still reasonable restrictive sentence [ Code s 718.2(d)], parity with other cases [ Code s 718.2 (b)], and the use in Canada of prison as a last resort [ Code s 718.2(e)]. [ 15 ] In this particular case, both of the convictions strike at the heart of a society focused on law and order and the protection of its citizens. Denunciation and deterrence, both for Mr.

Didechko and for others who might be tempted to try to avoid responsibility by fleeing a vehicle collision or obstructing the police in their investigative duties by creating false factual scenarios, must be denounced and deterred in the strongest possible ways. [ 16 ] There are other ‘hit-and-runs’ in Alberta and Edmonton. Even one is too many.

Indeed, it was sad for me to observe that while the Didechko trial was ongoing; another hit-and-run allegation occurred in Edmonton where the pedestrian was killed. [ 17 ] On the other hand, deterrence and denunciation must not overwhelm the other sentencing objectives, including rehabilitation.

The key in any sentence is to achieve a fair and appropriate balance between the competing social values and public policy concerns. [ 18 ] Moving from the general to the more specific, an important indicator is given to trial judges in criminal sentencing by an analysis of what the proposed maximum or minimum sentence is for the crimes for which conviction has occurred. Neither of the two offenses for which Mr. Didechko was convicted have a minimum sentence.

However, the offense of hit-and-run, when a death has occurred, carries with it a maximum sentence similar to murder or manslaughter, life imprisonment. [ 19 ] There must be at least three critical public policy reasons why the maximum sentence for hit-and-run is so significant when a death occurs. The first observation is that in not all cases does the serious injury lead to death; however, a seriously critically injured victim could die simply because the driver did not stop and offer what assistance was possible. In this particular case, Mr. Didechko’s flight did not delay care. Mercifully, Ms.

Jackson was not alone for long because a couple of paramedics who had just finished a call in the area reached her within 20 seconds. It is clear in this case that Mr. Didechko’s cowardly act of fleeing the scene did not contribute to Ms. Jackson’s loss of her life.

However, it remains a viable observation that a life imprisonment sentence, where death has ensued from a hit-and-run, was obviously intended by Parliament to attract significant legal jeopardy because of the extreme risk to victims, where the running may take away any survival chance a victim might have had. [ 20 ] Many of these hit-and-runs occur at night, on deserted streets or highways, as did this one. Virtually no one was around to come to the assistance of Ms. Jackson, but for the unique circumstance of the paramedics in the area. Had the paramedics not been there, Ms.

Jackson, lying on the driving portion of the road, could have laid there for some considerable time before she was found and could also have been struck again by another driver. The risks to victims when serious injury occurs, to be reinjured by subsequent users of the road, or to be placed in greater physical jeopardy by a lack of immediate attention, cannot be understated. This ongoing victim risk is only one public policy reason why the offense must carry with it a significant penalty.

I turn to consider two others. [ 21 ] Another public policy reason for substantial penalties for the offense of failing to stop at the scene of an accident where bodily harm or death has occurred must be to remove any strategic incentive for an accused to benefit by fleeing the scene. I suggest that a large segment of the late-night hit-and-runs, also involve alcohol. This case did. In at least three licensed premises, Mr. Didechko was consuming alcohol prior to this hit-and-run.

When one looks at the legal literature in which convictions have been entered for a failure to stop at the scene of an accident, there is often discussion about other charges of impaired driving or dangerous driving. A charge of dangerous driving causing death carries a maximum 14 year imprisonment. So too, impaired driving causing death (or over .08, causing death) creates liability to life imprisonment.

So a sentence with a stated maximum of less than life imprisonment for leaving the scene of an accident causing death, which is often an attempt to mask the reality of impaired driving, would mean that from a strategic point of view, a dishonourable driver would view it better to take his chances on first, not being caught, or being caught only after he sobers up.

Anything that minimalizes or trivializes an offence measured against the potential offences one could be attempting to avoid, is bad social policy [see Hansard 36th Parliament, first session, edited number 241, topic 1835]. [ 22 ] The third social policy reason why these offenses attract a significant maximum term is because the manner and circumstances by which each of them can occur can vary greatly. By example, fleeing the scene of an accident can be a young person with a new license who panics momentarily, but later, perhaps with good family guidance, reports wrongdoing and accepts punishment.

At the other extreme is a sophisticated, mature driver who has time to assess his risk, perhaps even seek counsel from others, and then makes a deliberate and intentional decision to attempt to avoid legal jeopardy. The widely varying circumstances of each case all require a wide potential range of sanction. [ 23 ] To wrap up this discussion about hit-and-run, it is clear that the legislative intent of these sections was to emphasize general and specific deterrence and denunciation. Many hit-and-run drivers are not career criminals.

They often come from community accepted families, and often (with the exception of the crime before the court) would be respected as law-abiding citizens. They reflect a lack of judgment coupled with a potential character flaw. Those individuals are often incensed when the public rightly identifies their conduct as dangerous criminal behavior. This type of convict, who would not identify himself as a criminal, and would often feel insulted by that label, can be deterred by significant sentences. The courts can, if they have the willpower to do it, create significant disincentive to flee the scene of an accident.

Denunciation and deterrence must anchor a fit and proper sentence. [ 24 ] Mr. Didechko was also convicted by me of a charge under section 139(2) of obstructing justice. This offense also attracts a significant penal liability as the maximum sentence is 10 years imprisonment. The public policy reasons for this, significant maximum are obvious. The costs to municipalities, and to society, spent on law enforcement and crime investigation is significant. It does not need to be increased by individuals making false complaints about thefts in an attempt to exonerate their liability.

I view obstructing justice as a serious offense in the Criminal Code . It strikes at the heart of the administration of justice in a free and democratic society, and must be dealt with aggressively. Again, the public policy reason for this type of significant maximum sentence is to provide deterrence, both on an individual and community basis. Denunciation and deterrence are the key factors in imposing a fit and proper sentence for obstructing justice. V. The Presentence Report

[ 25 ] Mr. Didechko presents for sentencing with a generally positive presentence report. It comments on his favorable job history, his family status and his limited criminal record. He had no criminal record before this offence. The presentence report indicates under all the circumstances he would be a suitable candidate for a jail sentence served in the community. [ 26 ] There are also some troubling elements to the presentence report. First, Mr. Didechko would not confirm nor deny whether he took responsibility for the charges of which he had been convicted.

This led to the observation by the report author that no determination of whether or not Mr. Didechko is remorseful could be made. Rather than Mr. Didechko express remorse, it was left to legal counsel in paragraph 10 of their sentence brief to express “his sincere remorse for the loss of Ms. Jackson and the suffering her family has endured.” Some of the support letters filed also reflect his remorse. [ 27 ] Further, Mr. Didechko did express some negativity about the justice system generally focused on the police.

He also expressed some concern about his curfew while on judicial and term release, and therefore was not comfortable answering if he would be willing to comply with any conditions that might be imposed. Counsel today assures me about Mr. Didechko’s willingness to abide by conditions. Mr. Didechko’s marriage has failed; he blames it on this situation. However, his spouse reported to the probation service that the relationship was rocky and that there had been conflict regarding Mr. Didechko’s family behavior and alcohol use.

Counsel urges me to take that comment with a grain of salt because of the existing family law dispute. [ 28 ] Despite these reservations, the probation officer indicated that Mr. Didechko would be a suitable candidate for a CSO. VI. Other Community Support Letters [ 29 ] Mr. Didechko has also filed a few letters generally from business acquaintances, discussing his positive characteristic traits. Most speak of his interest in business issues, his work ethic, and his help to them in work related matters.

One of them describes him as “one of the best moral characters I have ever had the pleasure to work with...”, but quickly concedes that the Court probably doesn’t see him in the same light. Several of them indicate his expressions of remorse to them. VII. The Victim Impact Statements [ 30 ] Ms. Faith Jackson’s family was devastated by her death. I observed during the trial that her family attended every day of the trial and were emotionally impacted by it. This parallels the emotion and anguish expressed in their victim impact statements.

They were most distressed when two police officers attended to give evidence about how, for forensic purposes, they gathered Ms. Jackson’s clothes from the floor of the hospital room where medical staff were attending Ms. Jackson. [ 31 ] No parent ever wishes to lay a child to rest. The pain and the emotional tearing of that hurtful circumstance is self-evident. I am sorry for the loss suffered by Ms. Jackson’s family. Judges are given much power in a democratic law-abiding society.

But despite this, we do not have the power to bring back a loved one, and I understand and recognize that there is no sentence that I can impose on Mr. Didechko that will erase this family’s pain. Faith Jackson was a young woman with a long and full life ahead of her. She was the mother of a young child. She represented the inspiration, hope, and faith in the future held by her family; who today suffer her loss greatly. The community also suffers every life lost. We do not know what wonderful things Ms. Jackson may have accomplished, whose lives she may have touched, and whose burden she may have lifted.

We can only express our sorrow and extend to her family, our sympathy. VIII. The Legal Literature Relating to Sentencing in These Type of Cases [ 32 ] While there are many cases in which there is a combination of some type of driving offense as well as leaving the scene of the accident; cases in which a sentence was imposed in isolation relating only to the charge of hit-and-run causing death, are more difficult to find. Further, this type of charge and the sentence for it is highly dependent on the facts.

This type of charge has a continuum of sentencing, that must range (at the low-end) from flight caused by accident and panic to (at the high end) a deliberate decision-making process to flee, and hide. The mercy of the Court should be most commonly reserved for hit-and-run drivers who are youthful, make a driving error and who panic and run in the heat of fear. But when that heat dissipates, those who come forward and accept responsibility should be treated mere leniently then those ensnared only by good police work.

At the other end of the spectrum where a hit-and-run driver is collected and coolly able to assess the risks and then elects to run, perhaps to cover-up a larger driving defect, must receive a more significant sentence. The legal literature expressed in different ways and from across the country, indicates these realities. A second demarcation is where the flight aggravates the situation of the victim; sentences in those types of cases reflect relatively greater punishment. [ 33 ] By example, the Crown cites R v Yuzicapi , 2011 SKCA 134 , 377 Sask R 133.

There, the accused pled guilty to leaving the scene of the accident and obstructing the course of justice by threatening witnesses. At trial, he was also convicted of impaired driving. The trial judge imposed a global sentence of 39 months, comprised of a sentence of 36 months for the leaving the scene of offense. The Saskatchewan Court of Appeal increased that sentence (despite the plea of guilt) to a 51 month sentence.

While leaving the scene, the accused aggravated his sentence position by threatening his passengers to stop them from getting assistance for the pedestrian he had struck. [ 34 ] By contrast, R v Thompson , 2002 ABPC 69 , 315 AR 151, reflects a conditional sentence order imposed on a young 18-year- old who struck a young child who was running across the street to catch a bus. The driver drove to a nearby town and abandoned his vehicle in such a way that it appeared he had collided with a lamp post, and then reported to the police that the vehicle was stolen.

That accused pled guilty to charges of hit-and-run, public mischief and careless driving. The judge found that the failure to return to the scene

of the accident and falsely report the vehicle stolen were born of fear, panic and immaturity. The learned provincial court judge was heavily influenced by the early plea of guilt, the obvious remorse on the part of the accused and imposed a conditional sentence with fines for the other charges. The hit-and-run attracted an 18-month community sentence. [ 35 ] My colleague, the Hon. Mr. Justice Jerke, in R v Mikla , (20 January 2016, Lethbridge 140688409Q1 (ABQB)), imposed a 15- month jail sentence followed by probation, where a young man struck a pedestrian then fled.

The next day he turned himself into the police and resolved the case by a guilty plea. In imposing sentence, the trial judge acknowledged that there was no evidence of any driving breech prior to leaving the scene and also no alcohol involvement whatsoever. IX. Applying the Legal Literature to the Didechko Fact Situation [ 36 ] Each case is an individualized sentencing process based on very unique facts. The unique facts I find here can be listed: • Mr.

Didechko had been out at several licensed establishments consuming alcoholic beverages. • He was driving down 82 nd Street at 70 kilometres per hour, which was over the speed limit by at least 10 kilometres per hour (depending on whether the speed limit at that portion of the road was 50 or 60). • Around 3:06 AM, he struck Ms. Jackson. • Ms. Jackson was on the driving portion of a street not at an intersection (adjacent to a bus shelter). • Paramedics coincidentally in the area provided expeditious first response time. • Immediately following the collision, Mr. Didechko momentarily touched his brakes.

He then took his foot off the brakes and drove a few blocks pulling off the road and phoned his brother. • At that point, he circled back for another look.

He again stopped, but did not attend at the scene, instead driving a short further distance and stopped again. • He then had a longer call with his brother before driving the vehicle to his father’s home, where he parked it for approximately 7 hours. • He never does report the accident to police. [ 37 ] Learned defence counsel attempts to characterise his client’s return to the scene as doing the right thing, rather I find it to be more of the self-centered attempt to assess criminal jeopardy. Nothing in Mr. Didechko’s post offence conduct reflects well on Mr. Didechko.

After the accident, he isn’t calling the police to confirm his panic and report the accident, he is ‘texting’ a female acquaintance to apologise for standing her up and advise her that something bad happened! [ 38 ] He is not a youthful offender who panics. He presents to the Court as an individual who had spent considerable number of hours earlier in the evening before, and the early morning, consuming alcoholic beverages at three locations.

While I was unable to find him guilty of dangerous driving causing death, I have no difficulty concluding for the purpose of sentencing, that his alcohol consumption on that night prior to the hit-and-run contributed to his decision to leave the scene. It was risk management, pure and simple. [ 39 ] The next morning when Mr. Didechko woke up, he had again an opportunity to do what is right, but he did not do so. His conduct later that morning relates to the charge of obstructing justice.

It is appropriate for me to identify this conduct at this time. [ 40 ] First, he took the vehicle away from his father’s home and parked it in northeast Edmonton. The investigating police officers believe that someone wiped down the top of the hood. One person who had a good motive to do that would have been Mr. Didechko and it is highly probable that he was trying to wipe off Ms. Jackson’s blood, thereby specifically destroying potentially important forensic evidence. If not him, someone else, family or friend, was aiding and abetting him. [ 41 ] Then, from the location where Mr.

Didechko had abandoned the vehicle, he made not one but three telephone calls to the Edmonton City Police complaint line in which he fabricated, complete with details, a scenario that he had been the victim of crime himself - that his employer-supplied vehicle had been stolen from him, and he was reporting that crime. [ 42 ] Later at a taped and cautioned police interview, he filled in the theft scenario by casting suspicion on his brother’s friends supposedly partying at the house. He continued to play the role of a victim, while knowing he was a felon. X.

Concurrent or Consecutive Sentences? [ 43 ] Defence counsel makes a strong submission for concurrent sentences, taking the position that the continuum of events makes this pair of charges suitable for concurrent sentences. The Crown is also prepared to concede that a concurrent sentence may be appropriate here, but based on their submission that the facts of the obstruction of justice conviction constitute aggravating circumstances to increase the sentence on a global basis to three years minimum.

In R v Meads , 2010 ABPC 109 , 486 AR 282, that approach was taken with the downstream obstructionist conduct creating a global sentence. I do not read the Crown submission as suggesting a conditional sentence order for the hit-and-run, and a concurrent conditional sentence order for the obstruction charge.

[ 44 ] The defence fallback position is that even if I conclude that the appropriate sentencing approach in this case are consecutive sentences, a community served jail sentence is still appropriate as the combined jail time should be less than 2 years. [ 45 ] In my view, the appropriate sentencing regime that makes sense here are consecutive sentences. These two crimes do not relate to the same incident, such as would be the case, with by example dangerous driving and hit-and-run. These are separate and distinct crimes with a common motive.

Both of the crimes were motivated by the self-serving interest of avoiding civil or criminal responsibility. Were I to make these two sentences concurrent, it would mean that in Canada, we actually have free crime. The nature of these two offenses, one building on the other but with distinctly separate essential elements and apart in time, means that the sentences should be consecutive. The first offense, that of hit-and-run, was fully completed when the accused drove away without stopping. The second offense began with the planning that occurred when the accused woke up.

By then, any alcohol still in his system would have likely been eliminated and he was coolly and dispassionately planning his next crime that of obstructing justice. A common motive for his first crime and his midday crime do not make them appropriate for concurrent sentences. This would of course be militated if an individual sentence imposed consecutively offended the totality principle, where a sentence in totality should not be excessively harsh [ Code s 718.2(c)]. In that latter case, courts will sometimes impose concurrent sentences even though the individual crimes are distinctly different. XI.

Driving Prohibition [ 46 ] The charge of hit-and-run causing death permits the Court to impose a driver’s license prohibition [ Code s 259(2) (a.1)]. Again, this is Parliament’s intention to express denunciation and deterrence to the type of conduct found here, and provides yet another tool for judges to craft a fit and appropriate sentence. The Crown suggests a driving prohibition of 3 to 5 years.

Defence counsel suggests that the driving prohibition should be for a period of 60 months less the 28 months already prohibited by the bail order, leaving a net of 32 months. [ 47 ] The difficulty determining the period of prohibition is that the same day the bail condition came into effect, the accused, who was, on the day of his arrest, charged with refusing the breathalyzer, was then statutorily suspended from driving by operation of law other than the bail terms, and from the day of his plea of guilt was then prohibited from driving for one full year.

The bail term was thus overshadowed by other criminal conduct leading to a statutory suspension and a Criminal Code prohibition. [ 48 ] While I accept the proposition the bail term prohibiting driving be considered, [ R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, any reduction to the prohibition is colored by the reality that the underlining facts do not make it equitable to do so. For one full year ending before our trial, Mr. Didechko was suspended by his conviction under the Criminal Code .

Counsel agree that time would not be time he could apply to this prohibition. [ 49 ] In my view, this was a serious crime involved in the use of an automobile and the lengthy prohibition is called for. There is no prescribed minimum but the cases suggest a range from three to five years. In my view, a four year driving prohibition is appropriate. This deducts one year from what would have been a five year prohibition for the conditions of bail, but does not fully deduct all the time because of the overlap with the provincial suspension. XII. Other Ancillary Orders [ 50 ] I direct that Mr.

Didechko supply a sample of DNA to be recorded in the crime-fighting records of police agencies so that in the event that he is involved in any other downstream crime, the detection of his involvement will be made easier by this DNA sample. The sample must be provided within 14 days. [ 51 ] I now turn to the appropriate sentence to be imposed in this case. XIII. The Appropriate Sentence [ 52 ] The jurisprudence reflects a wide range of sentences triggered by widely differing facts.

Cases that suggest a sentence in the range of six months to a year are simply too low for this type of offense with a life imprisonment maximum and with the aggravating circumstances that are involved here. Virtually all lower sentence cases flow from an admission of guilt and a guilty plea. The sentences must be high enough to deter both Mr. Didechko and other like-minded people from fleeing from the scene of a vehicle collision. While I accept in this case that Mr. Didechko did not, by his flight, cause the death of Ms.

Jackson, there was a post-collision plan and deliberate nature to the decision to leave the scene. Mr. Didechko had been consuming alcohol in more than minor quantities before the accident. He was also speeding at the time of the collision. While his level of impairment at the time of the collision could not be ascertained, I view his flight from the scene as an obvious attempt to reduce the risk of a potential prosecution for some type of drinking and driving offense. The fact that he may have had other motives to flee, as identified in my reasons convicting him, does not mean that alcohol was not a factor.

In my view, this crime alone is capable of attracting a federal penitentiary sentence. [ 53 ] The obstruction of justice charge also has within it several aggravating circumstances including its planned and deliberate nature, the steps taken to fortify the false allegation, and the lengthy period of time where the false allegation of theft was maintained. It is also highly probable that in carrying out this crime, Mr. Didechko burdened his family with the knowledge of this crime, and may have even made some of them criminals as aiders, abettors, and accessories after the fact.

There were no other parties on the indictment that I have dealt with, but the circumstances of the obstruction of justice lead to a conclusion that other family members or close friends must have been involved. So not only does Mr. Didechko obstruct justice, but he maintains that obstruction for some considerable hours, and perhaps also burdens his family members with the burden of the knowledge of his cowardly conduct. [ 54 ] An agreed statement of facts was introduced as a sentencing exhibit outlining the considerable investigative effort the false

claims of a stolen vehicle required. The obstruction of justice charge alone and in isolation warrants a period of imprisonment. XIV. Cooperation as Mitigation [ 55 ] Counsel for Mr. Didechko raises the issue of his cooperation in the trial process by admitting certain critical facts. This is a request for mitigation by cooperation. The ultimate form of cooperation is an acknowledgment of guilt and a plea of guilty.

While a sentence cannot be increased by a citizen insisting on his constitutional right to be proven guilty in a court of law beyond a reasonable doubt, it is clear that in the area of hit-and-run and obstruction, an early showing of remorse and a plea of guilt is a huge mitigating factor which reduces significantly what would otherwise be a reasonable sentence.

Certain admissions or trial tactics such as waiving a jury in a complicated long fraud case, or admitting facts which might otherwise not be proven at trial, may warrant a discussion about a slightly more lenient sentence. [ 56 ] Making admissions simply so that the Crown does not have to prove the obvious is of less value. These trial admissions which learned counsel cites as sentencing mitigators were obvious facts that were readily and easily proven by the police authorities. For example, one admission was that the vehicle involved had a GPS system within it.

A single question to the owners of the car dealership or one of the officers who saw the vehicle would establish that. [ 57 ] I am mindful Mr. Didechko was free of criminal record on the occasion of these offences, so is sentenced effectively as a first time offender. I recognize that his driving conduct that night is not established as the legal cause of the death of Ms. Jackson, who for reasons best perhaps known to her companion that night, was in the middle of the road and not in a crosswalk when she was struck. I am not sentencing Mr. Didechko for an impaired driving or an impaired driving like offense.

In that case, he would expect to receive six years in prison. [ 58 ] However, I am sentencing him as a middle-aged gentleman who had his wits about him on the night in question, and knew he had been consuming alcohol and he had been speeding. An individual who made a deliberate and conscientious decision to leave the scene of an accident where he knew or had to have known that the victim was impacted hard enough that her death was likely.

After making that conscientious decision, he took advice from presumably his brother, doubled back to observe the scene again, called his brother than left the scene for the last time. He later led the police on a false investigation by which, on a planned and deliberate basis, he abandoned his vehicle in an isolated part of Edmonton and then made several calls to the police providing false and fabricated information that would lead them on investigation looking for a stolen vehicle. [ 59 ] The primary concerns in sentencing Mr.

Didechko must be the community ones of denunciation, and general and specific deterrence.

His rehabilitation is of secondary concern. [ 60 ] Even a sentence of two years less one day would still, in my view, require actual jail time, however taking both of these together as consecutive sentences, a federal penitentiary jail sentence is an appropriate one, balancing all of the sentencing factors, which include the nature and circumstances of the offenses, the nature and circumstances of the offender, and the jurisprudence relating to this type of offense. [ 61 ] The sentences in their totality must exceed a two year custodial sentence, therefore a conditional sentence served in the community is not appropriate here despite the recommendation of the pre-sentence report author.

XV. Imposition of Sentence [ 62 ] Mr. Didechko would you please stand: • On the charge of hit-and-run causing death, I sentence you to a period in a federal penitentiary of two years. • On the charge of obstructing justice, I sentence you to a consecutive sentence of six months. [ 63 ] Your total time therefore, is 30 months in a federal penitentiary.

In addition, you will supply a sample of your DNA, and you are prohibited from driving a motor vehicle on any road or highway for a period of four years commencing on the date you are released from prison, and continuing thereafter for 48 months. [ 64 ] These offences predate the mandatory victim fine surcharge so I waive the requirement of a victim fine surcharge. Dated at the City of Edmonton, Alberta this 28 th day of September, 2016.

A.W. Germain J.C.Q.B.A. Appearances: Chady F. Moustarah and Kelsey Selbee Moustarah & Company for the Accused James E. Stewart Specialized Prosecution Branch for the Crown