Her Majesty the Queen - v. -, 2013 SKPC 208

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 208 Date: December 10, 2013 Information: 37017992, 38282373 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordan McNabb Appearing: D. Kim Jones For the Crown Kim Stinson For the Accused JUDGMENT J.D. KALMAKOFF , J [ 1 ] Jordan McNabb pled guilty to four charges, arising out of the series of events that led to the death of John Boxall on February 20, 2013 in Regina. Those charges are: • Criminal negligence causing death, contrary to

section 220 of the Criminal Code ; • Theft of a motor vehicle, contrary to

section 333.1(1) of the Criminal Code ; • Breach of probation, contrary to

section 733.1(1) of the Criminal Code ; and

• Failing to remain at the scene of an accident where death has resulted, contrary to section 252(1.3) (

b) of the Criminal Code . [ 2 ] This is my decision on sentence. I. FACTUAL BACKGROUND [ 3 ] On the evening of Tuesday, February 19, 2013, Jordan McNabb was with his friend, Quinton Mantee. They went for a walk near the Jolly Roger bar, and came across a Dodge Ram pickup truck which had keys in the ignition. McNabb decided to steal it. He got into the driver’s seat, and Mantee got into the passenger seat.

They drove off, and went to Mantee’s residence, where they smoked some marihuana. [ 4 ] Some time later, in the early morning hours of Wednesday, February 20, McNabb picked up his girlfriend in the stolen truck, and he, Mantee, and the girlfriend continued to cruise around Regina. McNabb was driving throughout. Later that morning, McNabb went to the Empire Hotel off-sale and purchased a 26 ounce bottle of whiskey, which he took back to Mantee’s residence. McNabb, his girlfriend, and Mantee, shared the bottle. [ 5 ] After consuming the whiskey, they left Mantee’s residence and went for a drive.

Once again, McNabb was driving the vehicle; Mantee and McNabb’s girlfriend were passengers. The other two described McNabb’s driving as “ripping around, doing donuts, and driving recklessly”. As the time approached noon, McNabb sped into the downtown area of Regina. He ran a red light at Albert Street and Saskatchewan Drive, one of the busiest and most collision-prone intersections in the city. McNabb continued to near the Regina Public Library, where he spun a 360 degree turn, going off the street and crashing into a metal elephant statue that stands on the sidewalk.

The stolen vehicle actually became hung up on the statue, and McNabb had to spin the tires and accelerate to extricate the vehicle. [ 6 ] After doing so, McNabb reversed direction, and sped off northbound on Smith Street, travelling the wrong way on a one-way street. He then turned east onto 11 th Avenue, travelling at a high rate of speed, swerving and fishtailing down a busy, crowded, and narrow street that runs through the heart of the downtown business district.

After a couple of turns, McNabb travelled east on 12 th Avenue, at speeds of 75 to 90 km/h, in a mostly residential area, where the speed limit is 50 km/h. He stopped briefly to drop off his girlfriend, then turned onto Arcola Avenue, and began to drive southeast. By this time, the Regina Police Service had received complaints regarding the manner of his driving. [ 7 ] As McNabb continued southeast on Arcola, he increased his speed, weaving in and out of traffic. He told Mantee he was going to “do something crazy”.

He narrowly missed colliding with a vehicle at the intersection of Victoria Avenue and Arcola Avenue, and continued to accelerate southeast on Arcola. Drivers following him could see that McNabb was approaching a red light at the intersection of Arcola Avenue and Park Street. Other vehicles were stopped at the red light. However, rather than slow down, McNabb accelerated into the intersection, saying “I’m sorry bro’” to Mantee as he did. [ 8 ] John Boxall was alone in his vehicle, travelling northbound on Park Street, at the intersection of Park and Arcola.

When the light turned green, he began to proceed through the intersection. He was broadsided by the vehicle Mr. McNabb was driving. The collision was horrific. Mr. Boxall’s vehicle was completely destroyed; he was partially ejected from the vehicle by the force of the collision, but his body was dragged along with the wreck as it slammed into other vehicles. Mr. Boxall died at the scene. It is highly unlikely that Mr. Boxall even saw what hit him, as the collision analyst concluded that Mr. McNabb was travelling, at minimum, 137 km/h at the point of impact.

The speed limit at that location on Arcola Avenue is 60 km/h. [ 9 ] The force of the impact drove Mr. Boxall’s vehicle into two other vehicles that were waiting at the red light, travelling northwest on Arcola Avenue. The driver of one of those vehicles, Karen Lovas, suffered minor physical injuries, including bruising and inhalation of air bag dust. She was also traumatized by what she witnessed.

[10] The force of impact also mangled the stolen vehicle that Mr. McNabb was driving. The front tires were ripped off. Thevehicle came to rest approximately 85 metres away from the point of impact, and on the opposite side of the meridian. Mr. McNabb gotout of the truck and ran. He instructed Mr. Mantee to do the same. They crossed the road, hopped a chain-link fence, and ran to a nearbyhouse. [11] The occupants of that house stopped Mr. McNabb and Mr. Mantee, and called the police. Officers arrived shortly andarrested Mr. McNabb, who admitted that he had been driving. He was bleeding, and smelled of alcohol.

Subsequent analysis showedthat Mr. McNabb had a blood alcohol concentration of between .114 and .130 at the time of the collision. He was also on probation andprohibited from driving. II. POSITION OF THE PARTIES [12] The Crown seeks a total period of imprisonment of ten years or more, a lifetime driving prohibition, and a DNA sampleorder. The defence suggests a global sentence in the range of 5 to 6 years would be appropriate, less credit for remand time, consideringMr. McNabb’s youth, guilty pleas, remorse, and his personal circumstances. III. THE OFFENDER [13] Mr. McNabb is 22 years old.

He was 21 when this incident occurred. He was raised, for the most part, by his grandmother,and had little contact with his biological parents during his childhood. At age 10, he was diagnosed as suffering from Fetal AlcoholSpectrum Disorder. He is a person of aboriginal ancestry, and has experienced the effects of addictions, poverty, racism, and limitededucational achievement. [14] Mr. McNabb has a lengthy criminal record, which includes no less than 33 previous convictions, 15 of which were as a youth,and 18 as an adult, as well as one breach of a conditional sentence order.

Many of those 33 convictions are for offences related to thetype of charges he currently faces. Mr. McNabb has previous convictions for breaking and entering, theft, possession of stolen property,taking automobile without consent, flight from police, breach of probation and breach of bail conditions. In fact, no less than six of theprevious incidents in which Mr. McNabb committed criminal offences involved him stealing, occupying, or driving stolen cars. On themost recent of those occasions, an incident for which he was sentenced in February of 2011, Mr.

McNabb was driving a stolen car, andwhen police tried to stop him, he drove away and fled the scene, smashing into two other vehicles in the process. [15] At the time he committed the offences before the Court, Mr. McNabb was on probation, and was disqualified from driving. IV. VICTIM IMPACT [16] Victim impact statements have been filed by a number of members of Mr. Boxall’s family, in accordance with

section 722 ofthe Criminal Code. The purpose of such statements is to describe the harm done to or the loss suffered by victims as a result of theoffences. [17] Victim impact statements serve a dual purpose in the sentencing process. First, they serve to palpably bring home to theoffender the consequences of his behaviour. Second, they bring to the attention of the Court the damage done to the victims, and thusindirectly to the community as a whole. In doing so, victim impact statements assist in crafting a sentence that meets the objective insection 718(

f) of the Criminal Code (promoting a sense of responsibility in offenders and acknowledgment of the harm done to victimsand the community): R. v. Berner, 2013 BCCA 188. [18] It must be noted that a victim impact statement should not contain material that distracts a sentencing court from its properconsideration. A victim impact statement is not to be used as an opportunity for the victim to advocate for a certain sentence, introducenew evidence, restate the facts, or criticize the offender: R. v. Bremner, 2000 BCCA 345; R. v. Gabriel (1999), (ONSC), 137 C.C.C. (3d) 1 (Ont. S.C.J.). Victim impact statements should not be an appeal to the sentencing judge to compensate grief

through the imposition of a harsh sentence: R. v. Berner , supra , at para. 17 . [ 19 ] One victim impact statement in particular, that of John Boxall’s daughter, Melissa, was noted to contain passages that may be of concern in that respect. In her victim impact statement, Ms. Boxall describes February 20, 2013 as the day her father was “murdered”. She goes on to describe why she feels that way, and why she does not consider the events that led to her father’s death as an accident. Later in her victim impact statement, Ms. Boxall engages in some criticism of Mr.

McNabb. [ 20 ] While one can certainly empathize with Ms. Boxall’s emotional reaction to the events surrounding her father’s death, I must keep in mind that offence, legally speaking, was not a murder, and cannot be treated as such for the purposes of sentencing. With that in mind, I have not allowed the use of that term by Ms. Boxall, nor any criticisms she made of Mr.

McNabb in her victim impact statement, to influence my decision in this case. [ 21 ] In considering the use to be made of the victim impact statements, I am guided by the words of the British Columbia Court of Appeal in Berner , supra , at paragraph 25 : While a sentencing judge must try to understand a victim's experience, he or she must do more than that. He or she must craft a fit sentence by taking into consideration all relevant legal principles, and the circumstances of the offence and the offender.

In emotionally charged cases such as this, a sentencing judge must keep in mind his or her position of impartial decision maker. The sentencing judge must be wary of the risk of valuing victims, based on the strength of feelings expressed in the victim impact statement... It is in the public interest to deter and denounce all unlawful deaths . [ 22 ] With that in mind, it is clear that Mr. Boxall’s death has had a devastating impact on a number of people, including his spouse, his children, and his grandchildren.

One can only imagine the shock to his family members brought about by this horrific offence, especially in light of the fact that only one day previous, they had been celebrating the fact that Mr. Boxall had been given a clean bill of health after battling cancer for two years. In addition to Mr.

Boxall’s immediate family, this offence impacted upon the community, including Regina Police Service members who had not only the unpleasant task of dealing with the aftermath of a fatal accident, but having to do so with the knowledge that the victim of the offence was a family member of one of their colleagues and friends. V. ANALYSIS [ 23 ] A sentencing decision must be guided by the provisions of sections 718 to 718.2 of the Criminal Code .

Section 718 says that the fundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions having one or more of the objectives listed in

section 718 , namely:

a) denouncing unlawful conduct;

b) deterring the offender and other persons from committing offences;

c) separating offenders from society, where necessary;

d) assisting in the rehabilitation of offenders;

e) providing reparations for harm done to victims or to the community; and

f) promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and to the community. [ 24 ] The relative emphasis to be placed on each of these objectives varies according to the circumstances of the offence and the offender. [ 25 ]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This means that, even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances, the resulting sentence must respect the

fundamental principle of proportionality: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. [26]

Section 718.2 requires a sentencing judge to have regard for secondary sentencing principles, including consideration ofaggravating and mitigating circumstances, totality, parity, and the need to consider all available reasonable sanctions other thanimprisonment, with particular attention to the circumstances of aboriginal offenders.

a) Proportionality -

section 718.1 [27] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at paragraph 37, Justice LeBel described proportionality as the “sine quanon” of a just sanction, saying that a sentence which properly respects the principle of proportionality inevitably ensures that secondarygoals such as denunciation, restraint, promoting justice for victims, and maintaining public confidence in the administration of justice,are met. The Supreme Court of Canada also described proportionality as central to the sentencing process in R. v. Nasogaluak, supra andR. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309. In R. v.

Arcand, 2010 ABCA 63, the Alberta Court of Appeal describedproportionality as the most important of the factors codified in sections 718 to 718.2. [28] In R. v. Yuzicapi, 2011 SKCA 134, the Court of Appeal emphasized the importance of proportionality in sentencing, notingthat the gravity of an offence and the moral culpability of the offender in committing it are the principal factors to be considered insentencing. Writing for the Court, former Chief Justice Klebuc noted that there are three important considerations in determining thegravity of the offence: (

i) the nature and comparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) theharm caused by it.

i) the nature and comparative seriousness of the offence [29] Two of the offences to which Mr.

McNabb has pled guilty - criminal negligence causing death (section 220), and failure toremain at the scene of an accident involving death (section 252(1.3)(b)) - carry maximum sentences of life imprisonment. [30] Other Criminal Code driving offences - impaired driving causing death (section 255(3)), causing death while fleeing police(section 249.1(4)(b)), causing death by criminal negligence while street racing (section 249.2), and dangerous driving causing deathwhile street racing (section 249.4(4)) also carry maximum sentences of life imprisonment. [31] The fact that all of these offences are serious is inarguable.

However, in my view, criminal negligence causing death is at thehigh end of the scale, even for this category of offence. It is more serious than, for instance, impaired driving causing death, becausecriminal negligence requires more than mere impairment of a person’s ability to drive. In order to be guilty of criminal negligence, one’sactions must be more than simply unreasonable and dangerous, they must amount to such a marked and substantial departure from thestandard of conduct of a reasonable person as to demonstrate wanton and reckless disregard for the life or safety of others: R. v.

Waite, (SCC), [1989] 1 S.C.R. 1436; R. v. Anderson, (SCC), [1990] 1 S.C.R. 265. [32] The offence under section 252(1.3)(

b) is also very serious. In R. v. Yuzicapi, supra, at paragraph 31, Chief Justice Klebucnoted that the other driving-related offences which carry maximum sentences of life imprisonment (criminal negligence causing death,impaired driving causing death, etc.) all require that the offender, by the manner of operation of a motor vehicle, have caused the deathof another person. He concluded that the fact that the offence under section 252(1.3)(

b) carries a maximum penalty of lifeimprisonment, absent any such causal requirement “...further confirms that Parliament considered the offence, abstract any particularcircumstances, to be of a very serious nature...”. [33] The offence of theft of a motor vehicle, in

section 333.1 of the Criminal Code, when prosecuted by indictment, carries amaximum penalty of 10 years imprisonment, and a minimum sentence of imprisonment of six months for a third or subsequentconviction. This is different from other forms of theft under

section 334 of the Criminal Code, for which the maximum penalty, when prosecuted by indictment is ten years only if the value of the item stolen exceeds $5,000.00[1], and for which there is no minimumsentence. The imposition of a minimum sentence of imprisonment for repeat offenders demonstrates the seriousness of the offence.

[ 34 ] The offence of breach of probation carries a maximum sentence of two years imprisonment. It is, by comparison, the least serious of Mr. McNabb’s offences. ii) the circumstances of the commission of the offence [ 35 ] The circumstances of the commission of the offences in this case are horrific. Mr. McNabb’s driving was outrageous, and he drove that way over a significant distance and a significant period of time. Not only was he prohibited from driving at the time, he was driving a stolen vehicle.

He had consumed a significant quantity of alcohol, to the point that his blood alcohol concentration was well over the legal limit. His actions ended the life of one person, and endangered the lives of many others. After all of that, and seeing the destruction he had caused, he ran from the scene in an effort to avoid detection. iii) the harm caused by the offence [ 36 ] The harm caused by the offence in this case was extremely serious. Mr. Boxall, a completely innocent victim, was killed. His family continues to grieve his loss. Other people were injured, both physically and emotionally.

Major property damage was done. The harm in this case affects not only the direct victims; it affects the community as a whole. iv) degree of responsibility of the offender [ 37 ] In addition to considering the gravity of the offence, I must consider the degree of responsibility of the offender. In this regard, the collision that claimed John Boxall’s life cannot be accurately characterized as an accident. While the result may not have been what Mr. McNabb intended, it was a product of deliberate actions and conscious choices on his part. He made the conscious choice to steal a vehicle.

He made the conscious choice to consume marihuana and alcohol. He deliberately drove the vehicle in the fashion that he did, and that continued for a significant period of time and over a significant distance. He made the conscious choice to “do something crazy”, which entailed driving at grossly excessive speeds, weaving in and out of traffic, driving the wrong way on a one-way street, and running a red light at a busy intersection while travelling nearly 80 km/h above the posted speed limit. And, after causing a horrific crash which took the life of one person and injured others, Mr.

McNabb made the conscious choice to flee the scene rather than try to help anyone. [ 38 ] Both the gravity of the offence and the degree of Mr. McNabb’s responsibility lie at the upper end of the scale in this case.

b) Purposes of Sentencing -

section 718 [ 39 ] While all of the purposes of sentencing listed in

section 718 must be given consideration, the relative emphasis placed on each factor varies according to the circumstances of the offence and the offender. [ 40 ] Mr. McNabb is a young man, so I cannot completely ignore the need for rehabilitation. However, in my view, rehabilitation is something that, in this case, should be given low priority.

The jurisprudence makes it very clear that for the offence of criminal negligence causing death, involving the aggravating factors contained in this case, primary consideration in sentencing must be given to denunciation, deterrence, and protection of the public: see R. v. Caron , 2000 SKQB 298 ; R. v. Akapew , 2009 SKCA 137 ; R. v. Cappo , 2005 SKCA 134 ; R. v. Yuzicapi , supra. Deterrence and denunciation must be the primary focus for any offence involving drinking and driving, where death results: R. v. Alm , 2013 SKCA 40 .

c) Relevant aggravating and mitigating factors [ 41 ] The aggravating factors in this case are many, mostly related to the circumstances of the offences themselves. They include the following: • Mr. McNabb’s driving was outrageous, considering the locations at which it occurred, the speeds reached, and the distance and time span it covered; • he was prohibited from driving at the time of the offences; • he was driving a stolen vehicle when he collided with, and killed, Mr. Boxall; • his blood alcohol level exceeded the legal limit at the time, and he had been using other drugs throughout the night; • Mr.

McNabb’s criminal record is lengthy, and includes prior convictions for offences related to stolen cars, and for fleeing police; • he was subject to a probation order, at the time, for those very offences; • he left the scene of the collision, despite the obvious destruction he had been responsible for, and encouraged his passenger to do the same; • he knowingly put other drivers, his passenger, and anyone else who might have been in his path, at risk; • his actions caused significant property damage; and • the impact of Mr. McNabb’s offences on Mr.

Boxall’s family, and the community, is devastating. [ 42 ] I accept that Mr. McNabb is remorseful. That is a mitigating factor, as is the fact that he accepted responsibility from the outset, and pled guilty without a trial or preliminary inquiry. I also consider his youth and his family support as mitigating factors.

d) Parity: sentences in similar cases [ 43 ] The principle of parity, embodied in

section 718.2 (

b) of the Criminal Code , dictates that an offender’s sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Uniformity in sentencing is not required, as the individual nature of sentencing and the need to respect the principle of proportionality mean that disparity can exist where circumstances warrant. Such disparity, however, should not be egregious, or unjustified. [ 44 ] In this case, the most significant offence of which Mr. McNabb has been convicted is the charge of criminal negligence causing death.

My consideration of the parity principle will focus on that offence. In that respect, I consider the following cases to be of particular value: R. v. Caron , supra. In this case, the offender pled guilty to two counts of criminal negligence causing death, one of criminal negligence causing bodily harm, possession of a stolen car, and breach of recognizance. Alcohol was involved, but was not a significant factor. The offender, in a stolen car, drove recklessly to avoid apprehension by police. Travelling at speeds approaching 100 km/h, he drove through downtown Saskatoon, causing an accident that killed two people.

The offender was aboriginal, aged 20, and had a difficult and disadvantaged upbringing. The Court noted the gravity of the offence, and the high degree of responsibility of the offender, and imposed a total sentence of 9 years (concurrent sentences of 8 years on each count of criminal negligence causing death, three years concurrent for criminal negligence causing bodily harm, six months consecutive for possession of stolen property, and six months consecutive for breach of recognizance), which was reduced by two years when remand time was taken into effect.

The Court also rejected the Crown’s request for a lifetime driving prohibition, noting the offender’s lack of past driving record, and imposed a 10 year driving prohibition. R. v. Regnier , 2002 SKCA 82

The offender in this case was convicted of one count of criminal negligence causing death, and one of criminal negligence causing bodilyharm. While drunk, he drove at high speed, on the wrong side of the road, and collided head-on with another vehicle, killing its driver. The offender had a criminal record of 13 previous convictions, five of which were drinking-and-driving related, two for driving whiledisqualified, and one for failing to remain. The trial judge imposed concurrent 4 year sentences on each offence, and imposed a 9 yeardriving prohibition.

The Court of Appeal increased the jail term to 6 years, noting that “...in our view, the upper end of the range in thesecircumstances is in the neighbourhood of seven years...”. R. v. Akapew, 2009 SKCA 137 In this case, the offender was convicted, after trial, of theft, possession of stolen property, criminal negligence causing bodily harm, flightfrom police causing bodily harm, and flight from police causing death. The facts were horrific, but the offender was not the driver; hewas convicted as a party to the offences. Mr. Akapew and his co-accused had stolen one vehicle. It broke down, and they stole another.

Shortly thereafter, they were spotted by police, and a lengthy chase ensued. Mr. Akapew was the passenger throughout the chase, whichlasted more than 30 kilometres, at speeds of up to 140 km/h on the highway. The driver swerved in and out of the path of oncomingvehicles, while Mr. Akapew threw objects out the window at the police car. Eventually, the vehicle in which Mr. Akapew was ridingcrashed head-on into an oncoming vehicle, killing a 10 year old girl, and seriously injuring other people. Mr. Akapew was 46 years old,and had 75 previous convictions, including 22 for criminal driving offences.

The trial judge imposed a total sentence of 6 years, lessremand time, and a 10 year driving prohibition. The Court of Appeal increased the sentence to 12½ years, less remand time, noting thatthe fundamental principle to be pursued in sentencing in such cases is protection of the public from incorrigible repeat offenders. R. v. Starr, (26 October 2007) Regina, Saskatchewan (Sask. Prov. Court) Mr. Starr was the driver of the stolen vehicles involved in R. v. Akapew, supra. Mr.

Starr was 17 at the time of the offence, but wassentenced as an adult after pleading guilty to criminal negligence causing death, flight from police causing death, and criminal negligencecausing bodily harm. Mr. Starr’s blood alcohol concentration at the time of driving was between .226 and .250. He had a lengthy youthrecord, which included convictions for stealing cars and being involved in police chases.

Judge Halliday imposed a 7 year sentence onthe charge of criminal negligence causing death, 7 years concurrent on the flight from police charge, and three years concurrent on thecharge of criminal negligence causing bodily harm, noting that she had taken Mr. Starr’s young age into account as a mitigating factor. R. v. Cappo, supra In this case, the accused drove home from the bar, at night, in a car with no working headlights. He collided head-on with anothervehicle, killing his own passenger and seriously injuring a passenger in the other vehicle.

The offender was 39, and had a record of 7prior convictions, one of which involved drinking and driving. He pled guilty, and a sentencing circle was ordered. The Crown sought ajail sentence of 18-36 months. The sentencing circle’s recommendation for a two year less one day conditional sentence was imposed bythe trial judge. The Court of Appeal overturned the sentence, and said that a jail term of two years less a day was warranted, but reducedit to 18 months to take into account the time spent subject to the conditional sentence prior to appeal.

While the Court of Appealfocussed on the misapplication and overemphasis of

section 718.2(

e) in the original sentence, they also noted at paragraph 17 that: ...a conditional sentence in this case does not meet the requirement of the law respecting proportionality to the gravity of the offence andthe responsibility of the offender, and respecting denunciation, deterrence and parity. R. v. Weeseekase (1997), (SK CA), 158 Sask. R. 245 (C.A.) In this case, the offender drove home drunk with four passengers in his vehicle. He drove fast and erratically, while the passengersyelled at him to slow down or stop. He did not stop. Instead, he rolled the truck at high speed.

One passenger was thrown from the truckand died. After trial, the offender was found guilty of criminal negligence causing death, criminal negligence causing bodily harm, anddriving while disqualified. He had 34 previous convictions, including 12 for driving-related offences. The trial judge imposed a 10 yearsentence, made up of 7 years for criminal negligence causing death, and 3 years consecutive for criminal negligence causing bodilyharm. The Court of Appeal reduced the sentence, by making the three year sentence concurrent to the 7 years, noting that the 10 yearsentence was “at the high end of the range”.

R. v. Bush, 2012 ONCA 743 In this case, the offender had a significant criminal driving record, which included 8 prior convictions for driving while disqualified, andhad not held a licence for nearly 20 years. He pled guilty to impaired driving causing death, criminal negligence causing death, drivingwhile disqualified and breach of undertaking. While intoxicated, the offender drove recklessly along back roads, reaching speeds of 170km/h, eventually crashing his car into a stream. Two of his passengers escaped the vehicle, but a third, who was highly intoxicated,could not get out, and drowned.

The offender’s blood alcohol concentration at the time of driving was more than triple the legal limit. The offences occurred while he was on bail for another impaired driving charge. The trial judge imposed a 12 year sentence, reduced by

two years credit for remand time. The Ontario Court of Appeal upheld this sentence, noting: Finally, we return to the facts of this case that make the appellant’s conduct so egregious. As outlined above, his conduct leading up tothe crash was, as appropriately described by the trial judge, “outrageous”. It endangered the community. It was fuelled by excessiveconsumption of drugs and alcohol. His conduct after the crash was equally troubling and callous in an attempt to plot a fabricated storyfor police and in leaving Mr. Bruno to die.

His driving history confirms a pattern into which these tragic events seem all too easily to fit. R. v. Smith, 2012 ONSC 3089 In this case, the offender was convicted of criminal negligence causing death, five counts of criminal negligence causing bodily harm,two counts of theft, five counts of breaking and entering, flight from police, and possession of stolen property. He stole a car and wenton a spree of businesses break-ins, until police and witnesses caught up to him, and a chase ensued. The pursuit lasted approximatelyfour kilometres through city streets.

The offender ran red lights, drove on the wrong side of the road, and collided with an oncomingvehicle, killing its driver and injuring five passengers. The offender had 168 previous convictions, most of which were for propertyoffences. He also had three previous convictions for drinking and driving offences, one prior conviction for failing to remain, and hadbeen involved in vehicle chases with the police in the past. He was also subject to a two year driving prohibition under the CriminalCode, and a lifetime provincial driving suspension at the time of the offences.

Calling the offender a “recalcitrant recidivist”, the trialjudge imposed a sentence of life imprisonment on the charge of criminal negligence causing death, and concurrent sentences rangingfrom six to nine years on the charges of criminal negligence causing bodily harm, along with a lifetime driving prohibition. R. v. S.(J.J.) (1999), 14 M.V.R. (4th) 180 (Ont. C.J.) The offender in this case pled guilty to criminal negligence causing death, criminal negligence causing bodily harm, failing to stop forpolice, and possession of a stolen car.

The accused had stolen a vehicle, and was on his way to sell it when the police began to pursuehim. Attempting to flee the police, the offender drove recklessly and crossed into the oncoming lane, where he caused a head-oncollision which killed the driver of an oncoming vehicle and injured its passenger. The offender was 20 years old at the time of theoffence, and had a relatively minor criminal record. However, he was on probation at the time of the offence, and did not have a driver’slicence.

Justice Baig imposed a 9 year sentence for the offence of criminal negligence causing death, and concurrent sentences on theother charges. R. v. Mascarenhas (2002), (ON CA), 60 O.R. (3d) 465 (C.A.) In this case, the offender, whose blood alcohol level was more than four times the legal limit, failed to negotiate a curve in the road, andended up running over two pedestrians, both of whom were killed. The offender pled guilty to two counts of criminal negligence causingdeath, impaired driving, driving while suspended, and several counts of breach of recognizance.

The offender was 46, had three previousconvictions for drinking and driving-related offences, and was on bail for other drinking-and-driving charges. The trial judge imposed a9 year sentence on the criminal negligence causing death charges, which the Court of Appeal upheld. Consecutive sentences for thebreach of recognizance charges brought the total sentence to 10 years, before credit for remand time was deducted. [45] I have also considered R. v. Ruizfuentes, 2010 MBCA 90; R. v. Ross, 2013 SKCA 77; R. v. MacDonald, 2010 SKPC 159 andR. v. Mercredi, 2011 SKQB 4.

Those cases are of little assistance, as they did not involve offenders who were guilty of criminalnegligence causing death. I also find R. v. Gross (1999), (SK KB), 179 Sask. R. 280 (Q.B.), and R. v. McDonald(1997), (SK CA), 152 Sask. R. 81 (C.

A) to be distinguishable, because those cases involved offenders with negligiblecriminal records. [46] In considering the parity principle, I consider the facts of the offence and the personal circumstances of the offender in Mr.McNabb’s case to be most similar to those in Caron, Starr, Weeseekase, Bush and S.(J.J.), noted above, suggesting that the appropriaterange of sentence in this case should be somewhere in the neighbourhood of 7 to 12 years.

e) Restraint [47]

Section 718.2(

d) requires that offenders not be deprived of liberty if less restrictive sanctions are appropriate.

Section

718.2(

e) says that sentencing judges must consider all available sanctions other than imprisonment that are reasonable in thecircumstances, with particular attention to the circumstances of aboriginal offenders. [48] Given the horrific circumstances of this case, there is clearly no sanction other than imprisonment that is reasonable. Anysentence not involving a significant prison term, in these circumstances, would grossly violate the principles of proportionality andparity, and would ignore the pressing need for denunciation and deterrence. [49] Mr. McNabb is a person of aboriginal descent. Even though it is clear that incarceration is called for in this case, section718.2(

e) requires that I give particular attention to his circumstances in determining the appropriate sentence. [50] Mr. McNabb has suffered the effects of racism. He has experienced poverty, family breakdown, addictions, poor educationalperformance, lack of employment, and conflict with the law. Not all of those factors are necessarily attributable to his being anaboriginal person, but sadly, such experiences are all too common for people of aboriginal descent. They are all relevant factors, as theyhave been part of the journey that brought Mr. McNabb to where he stands today. [51]

Section 718.2(

e) does more simply than affirm existing principles of sentencing. It calls upon judges to use a different methodof analysis in determining a fit sentence for aboriginal offenders. It directs sentencing judges to pay particular attention to thecircumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders.Section 718.2(

e) does not mean that aboriginal offenders are to be exempt from accountability, but rather that judges must consider anindividual’s background in order to craft an appropriate sentence: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 37;R. v. Gabriel, 2013 MBCA 45. [52] Therefore, in addition to considering Mr.

McNabb’s personal circumstances, I must also take into account historicalfactors such as the legacy of colonialism, displacement, residential schools, systemic racial discrimination, and how those factors havecontributed to social problems, including a higher rate of incarceration, for aboriginal people. These factors, on their own, do notnecessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding andevaluating Mr. McNabb’s personal situation: R. v. Gladue, supra, at para. 78; R. v.

Ipeelee, supra, at para. 60. [53] The Supreme Court also made it clear in Ipeelee that proper consideration of

section 718.2(

e) does not require theoffender to establish a causal link between systemic or background factors and the commission of the offence in order to have thosefactors considered in sentencing. Furthermore, the remedial purpose of

section 718.2(

e) should not be negated through blind adherenceto parity in sentencing. [54] That said, not every case involving an aboriginal offender will call for a mitigated sentence. Although

section 718.2(

e) cannotbe ignored simply because the offender is convicted of a very serious offence, there are some cases where the goals of deterrence,denunciation and public safety simply must be given greater weight. It is unreasonable to assume that aboriginal people themselves donot believe in the importance of such goals. Even if they do not, in some cases, those goals must be predominant considerations insentencing: R. v. Gladue, supra, at para. 78; R. v. Gabriel, supra, at para. 20. [55] In my view, this is such a case. The combination of historical factors and Mr.

McNabb’s personal circumstances aresomewhat mitigating, as they cast his moral blameworthiness in a different light, as compared to someone coming from a background ofrelative privilege and advantage. Nevertheless, the circumstances of the offences Mr. McNabb has committed are so grave, and hismoral culpability such that, even taking

section 718.2(

e) into account, denunciation, deterrence and protection of the public are still theprimary goals that the sentence needs to address.

f) Totality [56] Mr. McNabb has pled guilty to a total of four offences.

Section 718.3(4)(c)(ii) gives the Court discretion, if imposing asentence of imprisonment for more than one offence, to order that the sentences be served consecutively.

Section 718.2(

c) says thatwhere consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.

[57] While the offences committed by Mr. McNabb were part of one chain of events, they were also separate offences. He stolethe truck some time before the impugned driving actions occurred. After the deadly crash, he fled the scene in an effort to avoid arrest. [58] In R. v. Yuzicapi, supra, the offender struck a pedestrian with his car, causing injuries that were ultimately fatal. He left thescene, prevented his passengers from returning to provide help to the victim, instructed them not to call the police, and took other steps todispose of evidence.

The offender in Yuzicapi was a young man with a minimal record. He pled guilty to failing to remain at the sceneof an accident where death was caused, and obstruction of justice. He was also found guilty, after trial, of impaired driving, in relation tothe same incident. The trial judge imposed a 3 year sentence for failing to remain, 2 months consecutive for impaired driving, and 4months consecutive for obstruction. The Court of Appeal increased the sentence by one year, imposing a 4 year sentence on the failingto remain charge, and leaving the rest of the sentence the same.

In its decision, the Court of Appeal highlighted the need to focus on thegravity of the offence and the moral culpability of the offender, and to give primary attention to denunciation, public safety anddeterrence, noting at paragraph 45 that: ...It must be clear to motor vehicle operators that it is far better to remain at the scene of an accident in which another person is injuredthan to flee and thereby risk lengthy incarceration. [59] While I am of the view that Mr.

McNabb’s actions in failing to remain do not warrant a sentence of the length received by Mr.Yuzicapi on the charge under section 252(1.3)(b), in light of the comments of the Court of Appeal in that case, it is clear that anysentence imposed for that charge should be consecutive to the sentence for criminal negligence causing death. I also consider aconsecutive sentence to be appropriate for the theft charge. [60] That being the case, I must not only determine the appropriate sentence for each offence, I must also look at the total sentence,to ensure that it does not exceed what is appropriate, given Mr.

McNabb’s overall level of culpability: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Taylor, 2010 MBCA 103.

g) Credit for Pre-Sentence Custody [61] Section 719(3) of the Criminal Code allows me to give Mr. McNabb credit for the time he has spent in custody prior to beingsentenced (commonly referred to as “remand time”), to a maximum of one day for each day spent in custody, against the sentence Iultimately determine to be appropriate. Section 719(3.1) says that, if circumstances justify it, I may increase the credit for remand timeto a maximum of 1.5 to 1.

Enhanced credit under s. 719(3.1) is not available if the offender was denied bail by the Court for reasons ofpast record or for breaching bail conditions. [62] In this case, Mr. McNabb has consented to his remand in custody from the outset, and as such I am not precluded fromconsidering enhanced credit for remand. [63] While there is conflicting case law regarding what circumstances will justify enhanced remand credit, I prefer and adopt theapproach taken by Judge Tomkins in R. v. Goforth, 2013 SKPC 109. In that decision, Judge Tomkins reviews a number of authorities,including R. v. Summers, 2013 ONCA 147; R. v.

Stonefish, 2012 MBCA 116; R. v. Carvery, 2012 NSCA 107; R. v. Johnson, 2013ABCA 190; R. v. Mullins, 2011 SKQB 478; and R. v. Waffle, 2013 SKQB 186, and concludes that: • A sentencing judge has the discretion to consider all circumstances that may warrant enhanced credit, subject to the maximum ratio of1.5 days for each day served in remand; • Ordinary or common circumstances (including the absence of remission or parole eligibility) may be sufficient to ground enhancedcredit.

There is no requirement that circumstances justifying an enhancement must be rare or ubiquitous; and • The fact that crediting to a maximum of 1.5 to 1 is a permitted exception to 1 to 1 crediting does not mean that the circumstances reliedon to support an enhanced credit must themselves be exceptional.

[ 64 ] However, as noted in Summers , supra , regardless of what factors are relied upon, there must be a basis in the evidence or information which suggests it is appropriate that enhanced credit be applied to the particular offender and case before the Court. [ 65 ] In this case, Mr. McNabb has spent 291 days in custody as of today (December 10, 2013).

The defence argues that he should receive credit for that time at a rate of 1.2 to 1, based on the fact that he has spent some of that time in 22 hour per day lockup, and also the fact that he has had little access to programming. [ 66 ] Adopting the approach noted in Goforth , and Summers, supra , I am satisfied that it is appropriate to give Mr. McNabb some additional credit for his remand time. It is likely he would be eligible for some form of parole or remission if serving a sentence. In addition, while he had access to some programming, it is certainly not the full range available to sentenced offenders.

Therefore, I consider it appropriate to give him 11 months credit for the 291 days he has spent in remand. That works out to credit just shy of 1.2 to 1. SENTENCE : [ 67 ] Having considered all the relevant factors, I impose the following sentence on Mr. McNabb. [ 68 ] For the offence of criminal negligence causing death, pursuant to

section 220 of the Criminal Code , I sentence Mr. McNabb to a term of imprisonment of 8 years in a federal penitentiary. I give him credit of 11 months for the time spent on remand. That leaves 7 years and one month to serve. I also make an order prohibiting Mr. McNabb from operating a motor vehicle for a period of 20 years following his release from imprisonment. [ 69 ] On the charge of failing to remain, section 252(1.3) (b), I sentence Mr. McNabb to a term of imprisonment of 1 year, consecutive. [ 70 ] On the charge of theft of a motor vehicle,

section 333.1 , I sentence Mr. McNabb to a term of imprisonment of 1 year, consecutive. [ 71 ] On the charge of breach of probation, I sentence Mr. McNabb to a term of imprisonment of 1 year, concurrent. [ 72 ] The offences of criminal negligence causing death, failing to remain and theft of a motor vehicle are all secondary designated offences listed in

section 487.04 of the Criminal Code . Given the serious nature of the offences, the sentence imposed, and Mr. McNabb’s criminal record, I am satisfied it is in the best interests of justice to make an order authorizing the taking of a DNA sample from Mr. McNabb for forensic analysis. Pursuant to

section 487.051(3) (

b) of the Criminal Code , I make such an order. [ 73 ] In light of the sentence I have imposed, and given that these offences occurred before October 24, 2013, the surcharges are waived. J.D. Kalmakoff, J [1] Under

section 334, where the value of the stolen item is less than $5,000.00 the maximum sentence is two years imprisonment.