R. v. Alves Date:, 2012 BCPC 403

Citation: R. v. Alves Date: 20121019 2012 BCPC 0403 File No: 221282-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTONIO ALVES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: B. Wolfe Counsel for the Defendant: E. dos Santos Place of Hearing: Vancouver , B.C. Date of Hearing: June 7, 2012 Date of Judgment: October 19, 2012

INTRODUCTION [ 1 ] The accused, Mr. Antonio Alves, was charged with what is colloquially referred to as failure to remain at or leaving the scene of an accident. In particular, he was charged with having the care of a vehicle that was involved in an accident with another person and knowing that bodily harm was caused to that person, whose death resulted from the accident, with intent to escape civil or criminal liability failed to stop his vehicle, give his name and address and offer assistance contrary to s. 252(1.3) (

b) of the Criminal Code (“the Code ”). [ 2 ] In

summary, on April 6, 2011, Mr. Alves was driving a truck that was involved in an accident with a 77-year-old pedestrian, Mrs. Susan Wong, who was crossing the street. Mrs. Wong was struck and fell to the ground on the passenger side of the truck. Mr. Alves continued driving the truck for a short distance and then pulled over. He walked over to the area where Mrs. Wong was lying on the roadway, had a conversation with a bystander, and shortly after left the scene. Mrs. Wong died as a result of the injuries she sustained from the accident. On April 2, 2012, Mr.

Alves pled guilty to the charge of failing to remain at the scene of the accident. The Crown proceeded by indictment. A sentencing hearing was held on June 7, 2012. ISSUES [ 3 ] The primary issue raised by the parties is whether Mr. Alves should serve his sentence in jail or in the community under a conditional sentence order. In the main counsel focused their submissions on whether a conditional sentence is available in the circumstances of this case in light of s. 742.1 and s. 752 of the Code .

Section 742.1 now provides that a conditional sentence is not available in cases where the offender is convicted of a “serious personal injury offence” as that term is defined in s. 752 . Moreover, if a conditional sentence is available, I must determine whether the prerequisites for imposing a conditional sentence have been met, and whether a conditional sentence is appropriate in the circumstances. CIRCUMSTANCES OF THE OFFENCE [ 4 ] On April 6, 2011, at approximately 2:30 p.m., Mr. Alves was driving a GMC truck. It was a clear, sunny day. He was travelling south on Renfrew Street in Vancouver.

When he arrived at East 22 nd Avenue and Renfrew Street, at which point Renfrew becomes the Boyd Diversion, he began to make a left-hand turn eastbound. He had a green traffic light when he began to execute the turn. The incident that led to the accident was captured on the surveillance video of a transit bus which was travelling eastbound on East 22 nd Avenue. [ 5 ] At the same time that Mr. Alves was executing the left-hand turn, an unknown pedestrian was crossing East 22 nd Avenue on the east crosswalk.

The unknown pedestrian, who was walking with the assistance of a walker, was crossing from the north side of East 22 nd Avenue to the south side. When Mr. Alves’ truck entered the intersection, the unknown pedestrian was crossing and was still in the westbound lane of East 22 nd Avenue. Another pedestrian, Mrs. Wong, was also crossing East 22 nd Avenue. She was also using the east crosswalk and walking from the north side of East 22 nd Avenue to the south side. Mrs. Wong was walking well ahead of the unknown pedestrian using the walker. She was already crossing the eastbound lane on East 22 nd Avenue when Mr.

Alves’ truck entered the centre of the intersection. Mr. Alves’ truck slowed at the intersection to make the left-hand turn. A review of the transit bus surveillance video shows that the truck made a wide left turn. The truck is shown turning onto East 22 nd Avenue into the eastbound lane close to the curb rather than into the eastbound lane immediately adjacent to the centre line of East 22 nd Avenue. It is possible that the wide turn was executed to avoid hitting the unknown pedestrian using the walker. However, Mrs.

Wong, who had almost made it to the south side of East 22 nd Avenue, was struck at low speed and knocked down. Mr. Alves’ truck continued going forward for a short distance and then stopped. During this portion of the incident the traffic light at the intersection was green for the two pedestrians crossing East 22 nd Avenue and for Mr. Alves. [ 6 ] Two persons, one of whom got out of a vehicle in the westbound lane of East 22 nd Avenue, went to Mrs. Wong. Mr. Alves got out of the truck and walked to where Ms. Wong was lying on the roadway. He bent over, looked at Mrs.

Wong and had a short conversation with one of the persons at the scene. According to Mr. Alves, who provided this information through counsel, he spoke to at least one witness. He said two calls were made to 911. He was at the scene at least while one of these calls was made. Mr. Alves also asserts that he was aware Mrs. Wong was being assisted by the witness when he left the scene. Mr. Alves was at the scene for approximately one minute after getting out of the truck. He then walked back to the truck and left. He turned himself in to the police later that evening. Mrs.

Wong died as a result of the impact from the truck and being knocked to the pavement. The principal cause of death was blunt force head injuries. POSITION OF THE PARTIES [ 7 ] The Crown submits a fit sentence in the circumstances of this case is in the range of 8 1/2 to 9 months jail, to be followed by two years probation. It also requests a lifetime driving prohibition and a DNA order. The Crown submits that an offence under s. 252 (1.3) (

b) is a serious personal injury offence as defined in s. 752 of the Code . Accordingly, the Crown submits a conditional sentence is not available to Mr. Alves because s. 742.1 of the Code specifically prohibits the imposition of a conditional sentence in circumstances

where the offence committed is a serious personal injury offence. [ 8 ] The Crown submits that, when deciding whether failing to remain at the scene of an accident is a serious personal injury offence, the court must focus on the actions of the accused and not on the actions or presence of anyone else who happened to be at the scene. On this point the Crown submits that R. v. Goulet 2011 ABCA 230 is wrongly decided and should not be followed by this court. [ 9 ] Mr.

Alves submits an appropriate sentence in the circumstances is a conditional sentence in the range of 12 to 18 months with restrictive conditions, to be followed by one year probation. Mr. Alves acknowledges that, pursuant to amendments made to s. 742.1 , a conditional sentence is not available to an offender convicted of a serious personal injury offence as defined in s. 752 . Mr. Alves further submits that whether an offence is a serious personal injury offence is a question of fact which must be determined by the sentencing judge. [ 10 ] Mr.

Alves submits a sentence of less than two years is appropriate in the circumstances. He acknowledges that a term of imprisonment is justified; however, he argues it should be served in the community under a conditional sentence order. Mr. Alves urges this court to look at the specific facts of this case in determining whether a conditional sentence is available. He submits that leaving the scene of an accident is the type of offence which may or may not satisfy the definition of serious personal injury offence under s. 752 , depending on the circumstances.

He submits, in the circumstances of this case, that this court should find he did not commit a serious personal injury offence. Mr. Alves specifically points to the following circumstances: immediately after the collision occurred, Mr. Alves stopped the truck; Mr. Alves immediately approached Mrs. Wong; several witnesses came to the aid of Mrs. Wong; Mr. Alves remained at the scene of the accident for short time during which he spoke to at least one of the witnesses; Mr. Alves says two calls were made to 911 within the first minute of the collision; Mr.

Alves also says he was at the scene while at least one of those calls was made; Mr. Alves says he was aware Mrs. Wong was being assisted by the witnesses at the time he left the scene. STATUTORY PROVISIONS REGARDING FAILURE TO REMAIN [ 11 ] By pleading guilty Mr. Alves has acknowledged the essential elements of the offence of failing to remain at the scene of an accident under s. 252 of the Code which reads, in part, as follows: Failure to stop at scene of accident 252.

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (

a) another person, (

b) a vehicle, vessel or aircraft, or (

c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. …

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if (

a) the person knows that another person involved in the accident is dead; or (

b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [ 12 ] It is clear that a person who commits an offence under s. 252 (1) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years. However, a person may also be liable to imprisonment up to life, if the requirements of subsection 1.3 are met.

IS A CONDITIONAL SENTENCE AVAILABLE IN THE CIRCUMSTANCES? The statutory provisions [ 13 ] The prerequisites for a conditional sentence are set out in s. 742.1 of the Code which reads as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752 , a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. It is clear from the above noted

section that a conditional sentence order can only be imposed if the following prerequisites are met: a.) there must be no minimum term of imprisonment applicable to the offence; b.) the sentence imposed must be a period of imprisonment of less than two years; c.) the offence in question must not be a serious personal injury offence as defined in s. 752 of the Code ; d.) the court must be satisfied that serving the sentence in the community will not endanger the safety of the community; and e.) a conditional sentence must be consistent with the fundamental purpose and principles of sentencing. [ 14 ] As already noted, the primary issue in this case is whether the offence committed by Mr.

Alves is a serious personal injury offence as defined in s. 752 . In R. v. Lebar 2010 ONCA 220 , the Ontario Court of Appeal reviewed the legislative history of s. 752 . That

section was first introduced in 1977 as part of an omnibus bill which included strict firearm controls and new dangerous offender provisions.

Section 752 sets out specific designated offences and the definition of a “serious personal injury offence”. Until 2007, serious personal injury offences were exclusively of interest in relation to the dangerous offender regimes. [ 15 ] Amendments to s. 742 were introduced in 2006. Effective December 1, 2007, s. 742.1 was amended to exclude serious personal injury offences from the conditional sentencing regime.

Consequently, a person convicted of an offence which falls under the definition of a serious personal injury offence cannot be sentenced to serve a jail sentence in the community under a conditional sentence order. A “serious personal injury offence” is defined in s. 752 as follows: 752 In this Part, ... “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

[ 16 ] In

summary, if a person is convicted of an indictable offence for which he or she could be sentenced to imprisonment for 10 years or more, a conditional sentence is not available if: • the offence involved the use or attempted use of violence; or • the offence involved conduct endangering the life or safety of another person or inflicted severe psychological damage on another person; • the offence involved conduct which is likely to endanger the life or safety of another person or likely to inflict severe psychological damage on another person.

Case law on failing to remain at the scene [ 17 ] The parties relied on a number of cases regarding sentencing for failure to remain offences under s. 252 of the Code . The list of cases is found at Appendix A. A number of those cases were decided before the amendments to s. 742.1 were in force, for example: R. v. Heften [2007] B.C.J. No. 2622 , R. v. Waddell [2005] B.C.J. No. 1600 , and R. v .Reinelt [2004] B.C.J. No. 2952 .

Some of the cases were decided after the amendments to s. 742.1 came into effect; however, they dealt with offences to which the amendments did not apply because the offences had occurred before the effective date of the amendments, for example: R. v. Sanghera 2009 BCPC 24 and R. v. Dhaliwal 2008 BCPC 451 . Below I have summarized the cases in which the application of s. 742.1 was specifically raised in relation to the offence of failure to stop or remain at the scene of an accident under s. 252 of the Code . [ 18 ] It should be noted that when this case was argued the

interpretation of the term “serious personal injury offence” in a failure to stop or remain case had yet to be fully considered by a court in British Columbia. However, approximately one week before the sentence decision for Mr. Alves was scheduled to be given, one of my colleagues issued a decision in a sentencing case that raised the same issues raised before me. Accordingly, I provided both counsel with a copy of that decision and received written submissions from them. [ 19 ] In R. v. Ali 2010 ABPC 393 , Mr. Ali pled guilty to failing to remain at the scene of an accident. A motorist in front of Mr.

Ali stopped to allow a pedestrian to cross the street. The pedestrian was not in a marked crosswalk. Mr. Ali switched lanes to pass the stationary vehicle and, in doing so, struck the pedestrian. Mr. Ali stopped and looked at the pedestrian but then he sped away. The pedestrian died as a result of his injuries. The Crown argued this was a serious personal injury offence and a conditional sentence was not available.

The court noted that where it is not clear if the conduct in question falls within the scope of s. 752 , the sentencing judge must be mindful that the term “serious personal injury offence” should be interpreted as covering a wide array of dangerous behaviour.

The court also noted that a sentencing judge is entitled to look to the circumstances surrounding the offence, including actions that do not form the requisite elements of the offence. [ 20 ] After reviewing various cases, the court noted that some offences have been found to constitute serious personal injury offences even though the essential elements of the offences in question did not include the type of conduct outlined in s. 752 (a).

The court said that determining whether an offence constitutes a serious personal injury offence requires a contextual analysis that is informed by the totality of the circumstances of the conduct outlined in s. 752 (

a) and does not need to be an essential element of the offence to transform the offence into a serious personal injury offence. The court concluded that the conduct of Mr. Ali in its totality, namely; striking the deceased, stopping, then fleeing the scene, and the subsequent death of the deceased, clearly fell within the definition of serious personal injury offence. Taking into account an early guilty plea and the personal circumstances of the accused, the court concluded a sentence in the lower range was appropriate and sentenced Mr. Ali to six months in prison. [ 21 ] In R. v.

Foley 2010 NSSC 449 , the court also considered whether leaving the scene of an accident was a serious personal injury offence. Mr. Foley struck a horse-drawn wagon and the driver was killed in the collision. Mr. Foley left the scene, went home, covered his car with a tarp and returned to the scene. He did not report to the police immediately but eventually turned himself in. The Crown argued that a conditional sentence was not available because the offence was a serious personal injury offence. The defence argued a conditional sentence was available and appropriate in the circumstances.

In deciding whether the offence was a serious personal injury offence, the court reviewed a number of cases where other courts rejected the argument that the predicate offence must itself be an offence against the person. The court said the case law suggests it is not the specific elements of the offence that will determine whether an offence is a serious personal injury offence. Instead, the sentencing judge must consider whether the circumstances bring the offence within the definition of a serious personal injury offence. The court concluded a conditional sentence was not available to Mr.

Foley in the circumstances. [ 22 ] In R. v. Goulet 2011 ABCA 230 , the Alberta Court of Appeal considered a sentence appeal by the Crown. Ms. Goulet received a 90 day intermittent sentence for impaired driving causing bodily harm and a 12 month conditional sentence for leaving the scene of an accident. On appeal the Crown submitted Ms. Goulet was not eligible for a conditional sentence because her conduct constituted a serious personal injury offence. The Crown conceded that any particular offence is not invariably a “serious personal injury offence”.

Further, the Crown conceded that leaving the scene of an accident is the type of offence which might sometimes be a serious personal injury offence and sometimes not. [ 23 ] The court dismissed the Crown’s appeal. The court found that a conditional sentence was available for the offence of leaving the scene of an accident so long as the safety of the injured person, in that case a driver, was not endangered or likely endangered by the accused leaving the scene.

It said the sentencing judge was entitled to consider the whole context in deciding the issue and was not limited to simply examining the accused’s conduct. In Goulet the sentencing judge concluded that the fact the accused left the scene did not expose the victim to any risk because of the large number of people who were available to attend to the victim. The Court of Appeal said that was a reasonable finding, essentially one of fact, which was available to the trial judge.

In the course of its analysis the court noted, at paragraph 18, that the definition of serious personal injury offence incorporates "endangerment" as well as "likelihood of endangerment". However, it concluded: “not much flows from that." It further concluded that the distinction between “endangerment” and "likely endangerment” is at one level only conceptual, and these two parts of the definition are best read together as one test.

[24] In R. v. Schmitt 2011 ONCJ 546, Mr. Schmitt pled guilty to failing to stop at the scene of an accident contrary to s. 252 (1.3) (b)of the Code. The issues addressed by the court were whether the offence qualified him for consideration of a conditional sentence and, ifso, whether a conditional sentence was appropriate in the circumstances. Mr. Schmitt was driving on a highway at night. He struck a15-year-old boy who was riding his bicycle on the same highway. Mr. Schmitt realized he had hit someone but did not stop and remainat the scene. The accident was witnessed by two other motorists.

One of them stopped and found the young boy who was still alive. She called 911 and the victim was taken to hospital where he died several hours later. Mr. Schmitt later turned himself in to police. Hetold the police he had seen the victim land on the north side of the road and believed he had killed the victim because of the speed atwhich he was driving. He continued driving and later called a friend to obtain his advice. He told the police he panicked.

The followingday he went to work and that evening turned himself in to the police. [25] The court in Schmitt addressed the same two issues raised in the case before me. On the issue of whether Mr. Schmitt hadcommitted a serious personal injury offence, defence counsel submitted, carefully and with sensitivity, that the offender’s conduct inleaving the scene did not endanger the victim’s life because there was nothing the offender could have done to save the victim. TheCrown argued that when a person hits someone and drives away he or she exposes the victim to danger, harm and risk.

The Crownfurther argued the offender should not be able to rely on the position that it would not have mattered if he did stop. The court acceptedthe Crown’s submission. It noted that the offender should not accrue any benefit because, as it turned out, there would not have beenanything he could have done to save the victim’s life if he had stopped. The court said there would have been assistance Mr. Schmittcould have offered in terms of comforting the victim and assisting with the investigation.

The court concluded: I am of the opinion that leaving the scene of an accident is dangerous behavior which endangers or is likely to endanger the life or safetyof another person. The fact that other people happened to be present doesn’t mitigate the danger he left the victim in, nor does it matterthat as it turns out he would not have been able to change the fate of the victim. The offender was not aware of that fact when he decidednot to stop. On the facts of this case, the accused was clearly aware that he had struck a person on a bicycle and that the person struckhis windshield and then fell onto the ground.

At the time the offender decided not to stop he had no idea if anyone else had stopped norwhether he could have assisted the victim. By not stopping he clearly endangered the life or safety of the victim and thereforecommitted a serious personal injury offence. (para. 29) The court also considered whether a conditional sentence would have been appropriate, if it had been available. In the circumstances ofthe case, the court concluded a conditional sentence would not be appropriate. [26] In R. v.

Dhaliwal 2012 MBQB 155, the court also considered whether an offender charged under s. 252 (1.3) of the Code waseligible to receive a conditional sentence. In that case, Mr. Dhaliwal hit a pedestrian who was walking on the roadway because therewas no sidewalk. He struck the pedestrian and the pedestrian’s body was dragged for a short distance under the vehicle. Mr. Dhaliwalfailed to stop at the scene of the accident and offer assistance to the victim. The victim was taken to hospital in critical condition andlater died. Mr. Dhaliwal turned himself in to police approximately five days after the accident.

The Crown submitted a conditionalsentence was not available because Mr. Dhaliwal had committed a serious personal injury offence. The defence submitted a conditionalsentence was appropriate. It argued that Mr. Dhaliwal failed to stop at the scene of the accident because he was driving whiledisqualified. He was scared and made a mistake. The defence argued the only offence Mr. Dhaliwal was charged with, other thandriving while prohibited, was leaving the scene of the accident. He was not charged with any offence such as speeding, dangerousdriving, impaired driving or the like.

The defence relied on the Goulet case and argued that a life could not be endangered incircumstances where it had been determined the victim would not have medically survived. [27] The court said that, when considering whether an offence is a serious personal injury offence, it is necessary to consider andfocus on both the conduct of the individual accused and the context of the case in its entirety. In particular, it noted that the court inGoulet held a judge is entitled to consider whether others were present at the scene who could have rendered assistance to the victim.

The court in Dhaliwal declined to follow Goulet on this point and instead followed Schmitt. The court concluded there was no doubt Mr.Dhaliwal must have known the person he struck had been injured and that he was totally unaware of her condition. By leaving thevictim unattended on the roadway he placed her at risk of being struck by another vehicle. He did not know whether anyone else wouldcome to assist her.

Indeed, there was no evidence of others being in the vicinity of this accident. [28] The court said there is no question that a determination of whether a serious personal injury offence occurred will varydepending on the particular legal context and fact situation. However, on the facts before the court, it concluded Mr. Dhaliwal’s conductendangered or was likely to endanger the life or safety of another person or inflicted or was likely to inflict severe psychological damageupon another person.

The court said, taking into account the far reaching meaning of the word “safety”, the clause used in s. 752 (a)(ii)points to Parliament’s intention to cover a very expansive range of dangerous behaviour with the term “serious personal injury offence”. [29] In R. v. Eichler 2012 ONCJ 480, the accused was driving a motor vehicle that struck a pedestrian who was crossing the street. The accident caused substantial damage to the vehicle and significant injuries to the pedestrian.

The accused slowed the vehicle butthen drove away causing the pedestrian’s body to spin on the hood of the vehicle before sliding off onto the pavement on the driver’sside. The accused drove away from the scene and, ultimately, a person who was a passenger in the car telephoned the police to reportthe accident. The pedestrian suffered significant injuries which required several surgeries. [30] In Eichler the court concluded, in the context of the events of that evening, that the offence was a serious personal injuryoffence.

The court did not undertake a detailed analysis noting it was not necessary to elaborate on the issue further because, even if aconditional sentence was available, it was not appropriate in the circumstances. Recent B.C. provincial court decision [31] In R. v. Peragine 2012 BCPC 355 , 2012 BCPC 0355, Harris Prov. Ct. J. sentenced an offender who pled guilty toleaving the scene of an accident under s. 252 (1.3) of the Code. The central issue was whether leaving the scene of an accident involvinga pedestrian who subsequently died, is a serious personal injury offence.

The offender was driving south on Willlingdon Avenue in

Burnaby in the middle of the afternoon when his vehicle collided with a pedestrian. After the collision the offender continued driving.One of his passengers told him she had seen someone lying on the road. The offender looked back, saw a person lying on the road, and asecond person going forward to assist. The offender continued driving. He stopped his car in a parking lot. On examining it he noteddamage to the front end and that a bag was lodged in the grill. He placed the bag in the trunk of the car and drove away. One of thepassengers repeatedly told him he should return to the scene.

He did not do so, moreover he told the passengers to forget the accidenthad happened. [32] The police questioned the offender about the damage to his vehicle a few weeks later. He falsely attributed the damage to twoprevious accidents. The police had no further contact with the offender until approximately two years later when he was contacted by anundercover police officer.

During recorded conversations with the undercover officer the offender admitted his involvement in theaccident. [33] The Crown argued that a conditional sentence was not available because the offender's actions constituted a serious personalinjury offence as defined in s. 752 of the Code.

The defence on the other hand maintained that the offender's conduct did not amount to aserious personal injury offence because, shortly after the accident, someone went to the aid of the pedestrian. [34] The court concluded that, in deciding whether an offender’s conduct constitutes a serious personal injury offence, considerationmust be given to all the circumstances, including actions that do not form the requisite elements of the offence, such as the context withinwhich those actions occurred. The court relied on Dhaliwal and Goulet in reaching this conclusion.

Further the court said a contextualanalysis will always involve a consideration of whether there are persons who are nearby or offering assistance. However, care must betaken to consider the entire context and not resolve the issue simply on the basis of whether there are persons nearby or offeringassistance.

The court specifically considered the following as some of the factors to be taken into account in determining whether theoffence of leaving the scene of the accident was a serious personal injury offence: the nature of the roadway, the amount of trafficactually on the road at the time of the incident, the positioning of the injured party, and whether or not someone was actually helping thevictim. The court concluded the offender’s conduct likely endangered the safety of the pedestrian and found that his actions constituteda serious personal injury offence.

After considering the offender's background and mitigating and aggravating factors, the courtsentenced the offender to five months in jail and a two year driving prohibition. Additional submissions on R. v. Peragine [35] The Crown respectfully submits that the court in Peragine mis-stated the law regarding what must be considered whendetermining whether the offence was a serious personal injury offence. It specifically focused on the court’s statement that"consideration must be given to all the circumstances".

The Crown submits the court should not have considered circumstances beyondthe control or actions of the accused when determining whether the offence under s. 252 (1.3) (

b) was a serious personal injury offence. The Crown argues that the court’s reasoning imports factors for consideration akin to those considered in Goulet, with the result thatfactors external to the actions of the offender were considered. The result of such an analytical approach is that an offence charged unders. 252 (1.3) (

b) might or might not be a serious personal injury offence. The Crown submits this is contrary to the analysis in Dhaliwal,which adopts Schmitt. The Crown submits that Goulet is at odds with Dhaliwal, and by implication Schmitt, regarding what mayproperly be considered in determining whether an offender’s conduct endangered or was likely to endanger the life or safety of anotherperson in the context of s. 252 (1.3) (b). [36] Mr. Alves submits that the court’s analysis, at paragraphs 46 and 47, is correct.

He agrees that a contextual analysis requiresthe court to consider the entire context in which the offence was committed. Therefore the court's analysis should not be restricted solelyto the conduct of the offender or the elements of the offence for which the offender was convicted. However, while Mr. Alves agreeswith the analysis of the law in Peragine, he does not agree that the end result applies to the facts of his case. Mr. Alves submits that thecircumstances in his case support a finding that he did not commit a serious personal injury offence.

He repeated the submissions madeinitially during the sentencing hearing as to the factors that this court ought to consider (see paragraph 10 above). He also added that theaccident in this case occurred at approximately 2:21 p.m. and rush-hour or heavy traffic would not have been an issue at this time. Analysis regarding “serious personal injury offence” [37] In determining whether the offence of leaving the scene of an accident in Mr.

Alves’ case constitutes a serious personal injuryoffence, I must consider whether it is an offence involving conduct endangering or likely to endanger the life or safety of another person. There are two lines of authority that have considered the meaning of “serious personal injury offence”. One line follows R. v. Neve,1999 ABCA 206 , [1999] A.J. No. 753. In Neve the court said that the actions of the offender must be objectively serious inorder to constitute a serious person injury offence. The other line of authority follows R. v.

Goforth (2005), 2005 SKCA 12 ,193 C.C.C. (3d) 354, in which the Saskatchewan Court of Appeal noted that s. 752 (

a) does not "invite a qualitative assessment of thedegree of violence or endangerment in the predicate offence." The court went on to note that the definition of a serious personal injuryoffence in s. 752 (

a) does not imply "the use or attempted use of serious violence against another person" or "conduct seriouslyendangering or likely to endanger the life or safety of another person." The reasoning in Goforth has consistently found favour in thesuperior courts of most provinces other than Alberta: see, R. v. D.J.B 2012 BCSC 1391. In a later Alberta decision, R. v. Ponticorvo,2009 ABCA 117 , [2009] A.J.

No. 326, the Alberta Court of Appeal noted that, in the context of the conditional sentenceprovisions of s. 742.1, "the use or attempted use of violence suffices and does not require an overlay of objective seriousness." [38] A number of cases have considered the meaning of the term "endanger", albeit in different circumstances. In R. v. Thornton(1991), (ON CA), 3 C.R. (4th) 381, the Ontario Court of Appeal considered the meaning of the term "endanger" inrelation to the offence of nuisance.

The court said that s. 180 of the Code simply requires that the conduct of a person "endanger" thelives or health of the public. It does not require actual injury or damage. The court said: "The word 'endanger' does not have any specialtechnical meaning. Among the ordinary meanings of that word are the concepts of exposing someone to danger, harm or risk, or puttingsomeone in danger of something untoward occurring.” In R. v.

J.R.B. (2004), 2004 NLCA 41 , 187C.C.C. (3d) 176, theNewfoundland Court of Appeal considered the meaning of the term "endangers" and the phrase "likely to cause the health of that personto be endangered" in relation to s. 215 (1) (

a) of the Code. It held that the essence of endangering is putting at risk of harm. In R. v. Alithe court adopted the meaning of "endanger" set out in the Thornton case. The court also noted that in R. v. McDonald, 2002 ABPC 50,

"endanger" was interpreted to mean – to cause the danger of something untoward happening; to render imminent or probable. [ 39 ] In Goulet the court said a sentencing judge ought to look at the whole context of the offence of leaving the scene of an accident, including the presence of others at the scene who might reasonably be expected to come to the assistance of the injured victim. The Crown urges me not to accept the court's analysis. A careful reading of Goulet makes it clear that the presence of others at the scene of an accident is only one of many factors that should be considered by the sentencing judge.

The court makes it clear that whether the conduct of the accused endangered others is to be determined on an objective basis. Accordingly, the accused’s subjective thought processes and views while fleeing the scene are not relevant on that issue unless they are objectively reasonable. The court specifically noted that hindsight can play only a limited role in the analysis. The fact that others offered assistance to the injured party is not determinative of an absence of objective endangerment.

I, like my brother Judge Harris, agree that in assessing whether an offender’s conduct constitutes a serious personal injury offence both the offender’s actions and the context within which those actions occur must be taken into account. To that extent I adopt the analysis in Goulet . However, I find the court’s comments at paragraph 18 of Goulet problematic. [ 40 ] The court suggests that not much flows from the use in s. 752 (a) (ii) of the terms “conduct endangering “or "likely to endanger”.

In fact the court states not much flows from that and these two parts of the definition are best read together as one test. I respectfully disagree. Those words clearly describe two different ways in which an offender’s conduct can fall within the definition of serious personal injury offence. One way is if the offender’s conduct actually endangers the life or safety of another person; the other way is if the offender’s conduct is likely to endanger the life or safety of another person.

I read the definition as meaning that even if an offender’s conduct does not actually endanger the life or safety of another person, it could nevertheless be found to be a serious personal injury offence if it was likely to do. [ 41 ] In several cases, for example Schmitt and Dhaliwal, the court stated that the fact the victim died at the scene and that any assistance provided by the accused driver would not have helped, does not relieve the driver of his obligation under s. 252 . In essence, Mr. Alves advances a variation on that argument; namely, that it did not matter if Mr.

Alves drove away because two other people were at the scene who could aid the victim. [ 42 ] The court in Schmitt declined to follow the Goulet decision. The court said, on this point: ...The Crown argues that when you hit someone and drive away you are exposing them to danger, harm and risk and the offender should not be able to rely on a position that it would not have mattered if he did not stop. I agree, I do not believe the offender should accrue any benefit because as it turns out, there would not have been anything he could have done to save the victim's life.

There would have been assistance the offender could have offered in terms of comforting the victim and assisting with the investigation. ... I am of the opinion that leaving the scene of an accident is dangerous behaviour which endangers or is likely to endanger the life or safety of another person. The fact that other people happen to be present doesn't mitigate the danger he left the victim in, nor does it matter that as it turns out he would not have been able to change the fate of the victim.

The offender was not aware of that fact when he decided not to stop. ... (paras. 28 & 29) [ 43 ] In Dhaliwal , the court also declined to follow the Goulet decision. It noted that the decision in Goulet , on the issue of the significance of the presence of others at the scene, was contrary to the views expressed in Schmitt , with which it agreed. The court rejected defence counsel's argument, based on the comments in Goulet , that the victim's injuries were fatal soon after she was struck and hence her life was not endangered by Mr. Dhaliwal’s failure to stop at the scene.

The court said, taking into account the far-reaching meaning of the word "safety" used in s. 752 (a)(ii), it was clear that Parliament’s intention was to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence". [ 44 ] I note that in Schmitt the court found the accused had no idea if anyone else had stopped or whether he could have assisted the victim at the time he decided not to stop. Similarly, in Dhaliwal the accused made no effort to stop the vehicle and was totally unaware of the victim's condition.

The court found he did not know whether anyone else would come to assist the victim. In fact there was no evidence of others being in the vicinity of the accident. That is not what happened in this case in that Mr. Alves did stop briefly, walked over to where the victim lay on the ground, briefly spoke to a bystander and then left. Accordingly, although the analysis in Dhaliwal and Schmitt is of some assistance, the cases are not directly on point. [ 45 ] What I must determine is whether the specific actions of Mr.

Alves, considered in the totality of the circumstances, constitute a "serious personal injury offence". Having considered the totality of the circumstances, I conclude Mr. Alves failed to comply with the legal duties imposed by s. 252 . Not only did he not remain at the scene, but he did not provide his name and address. Further, and more importantly, knowing a pedestrian had been injured he did not offer assistance. The legal requirement to provide assistance to an injured person falls on the person who has the care, charge or control of the vehicle involved in the accident. In this case that was Mr. Alves.

As noted in R. v. Wieczorek 2010 ONCJ 582 , the duty placed on the driver is not an onerous duty. It is the driver, and not witnesses or bystanders at the accident scene, who has a legal duty to stop and render assistance. [ 46 ] The offender’s responsibility to render assistance cannot simply be transferred to witnesses or bystanders who have no duty to the injured person and whose ability and capacity to render assistance cannot be gauged. I have taken into account that Mr. Alves stopped and went over and looked at Mrs. Wong and had a short conversation with one of the persons at the scene.

He was also aware that at least one person called 911. The simple fact that a 911 call was made does not amount to rendering assistance. Moreover, there is no evidence that Mr. Alves knew whether the bystanders were able and capable of rendering assistance. [ 47 ] In Goulet the court noted that the offender’s subjective thought processes and views while fleeing the scene are not relevant in determining whether his conduct endangered others, unless they are objectively reasonable.

The court also noted that "hindsight can play only a limited role in the analysis and the fact that others offered assistance to the injured parties is not determinative of an absence of objective endangerment." Mr. Alves emphasized that he was at the scene while at least one 911 emergency call was made by one of the bystanders. Further, he pointed out he was aware that the victim was being assisted by witnesses at the time he left the scene. These

observations were made while Mr. Alves was at the scene, which was approximately only one minute. [ 48 ] Mr. Alves’ observation that the victim was being assisted is a factor I have considered. However, it is not determinative of the question whether his conduct endangered or was likely to endanger the life or safety of the victim. Further, I adopt the observations made by the court in Schmitt to the effect that the offender should not accrue any benefit because, as it turned out, there would not have been anything he could have done to save the victim's life if he had stopped.

In this case a review of the transit surveillance video indicates that while it was not rush hour there was enough vehicular traffic at the intersection to cause safety concerns in light of the accident. In particular, although the victim fell to the ground near the curb side of the road, it was still likely, given the curve on the Boyd Diversion, that a vehicle or a cyclist executing a right turn could have struck the victim. [ 49 ] After considering the entire context in which the offence in this case was committed, I conclude that the life or safety of the victim was likely to be endangered by Mr.

Alves leaving the scene of the accident and his failure to assist the victim. Accordingly, a conditional sentence is not available to him. IF A CONDITIONAL SENTENCE IS AVAILABLE, IS IT APPROPRIATE [ 50 ] I have concluded that the offence in this case constitutes a serious personal injury offence. However, in the event my analysis on that issue is incorrect, I will also consider whether a conditional sentence should be granted if it were available. I begin my consideration of whether a conditional sentence is appropriate by setting out the circumstances of the accused as well as a

summary of the victim impact statements. Circumstances of the offender [ 51 ] Mr. Alves is 69 years old. He immigrated to Canada in 1982 and, after living in Ontario and Alberta, moved to British Columbia in 1995. He is not married and has no children. Mr. Alves completed school in Portugal and as soon as he finished school began working in bars and restaurants in Portugal. When he moved to Canada he worked in the same industry. He owned his own restaurant in Vancouver from 2000 to 2003. After that he worked in various Portuguese restaurants and retired four years ago. [ 52 ] Mr.

Alves told the probation officer who prepared the pre-sentence report that he spends a lot of his time with friends from the Portuguese community. Two of his friends, who happen to be brother and sister, were interviewed by the probation officer. They reported that they have known Mr. Alves for some time. They spent time with him in Vancouver and also travelled with him on vacation. They reported he is a good person. [ 53 ] Mr. Alves told the probation officer he is suffering from poor health. He is being monitored by the BC Cancer Agency following surgery for the removal of two tumours in his head.

He also reported to the probation officer that he had a stroke after this incident. He was at Burnaby General Hospital for about 10 days. He also suffers from diabetes and high blood pressure. [ 54 ] Mr. Alves told the probation officer that he has never used drugs, but uses wine regularly. He typically has a glass of wine with dinner and also drinks at social events. He denied having a drinking problem. [ 55 ] The probation officer questioned Mr. Alves about the offence before the court. He told the probation officer he did not see the victim while driving his friend’s vehicle and making a left-hand turn. Mr.

Alves told the probation officer he did not really feel anything when the truck struck the victim. However, he got out to see what happened. He did not think he had hit anything. He told the probation officer that when he saw the victim was being helped he left because he got nervous as he did not have his driver’s license with him. He later turned himself in to the police. [ 56 ] On April 20, 2011, Mr. Alves was convicted of impaired driving causing bodily harm for an incident that occurred on July 25, 2010, in New Westminster. He was fined $1000 and given an 18 month driving prohibition.

At the time of the accident on April 6, 2011, involving Mrs. Wong, Mr. Alves had not yet been convicted of impaired driving. Mr. Alves’ driving history is set out below: Violation Disposition and Date Act Description and

Section PTS Location 7 FEB 2001 30 MAR 2001 MVA: Motor Vehicle Act 146.3 SPEED AGAINST HIGHWAY SIGN 03 VALEMOUNT 6 FEB 2002 21 MAY 2003 MVA: Motor Vehicle Act 24..3.B DRIVING WITHOUT INSURANCE 00 VANCOUVER 6 FEB 2002 21 MAY 2003 MVA: Motor Vehicle Act 144.1.A DRIVE WITHOUT DUE CARE 06 VANCOUVER 3 JUL 2002 23 AUG 2002 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 VANCOUVER 9 DEC 2002 29 JAN 2003 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 HOPE 9 JUN 2006 10 JUL 2006 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 COQUITLAM

7 OCT 2006 MVA: Motor Vehicle Act 215(2) 24 HOUR PROHIBITION - ALCOHOL 00 NEW WESTMINSTER 8 APR 2008 19 MAY 2008 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 BURNABY 5 MAY 2008 26 JUN 2008 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 BURNABY 1 DEC 2008 31 JAN 2009 MVA: Motor Vehicle Act 220.4 FAILING TO WEAR SEATBELT 00 NEW WESTMINSTER 5 JUL 2010 MVA: Motor Vehicle Act 215(2) 24 HOUR PROHIBITION - ALCOHOL 00 NEW WESTMINSTER 5 JUL 2010 20 APR 2011 $1150 CCC: Criminal Code of Canada 255.2 OPERATING A MOTOR VEH.

WHILE IMPAIRED CAUSING BODILY HARM 10 NEW WESTMINSTER PROHIBITIONS/SUSPENSION FROM 16AUG2010 TO 14NOV2010 CAUSE ADMINISTRATIVE DRIVING PROHIBITION 94.2 MVA FROM 20APR2011 TO 20OCT2012 CAUSE PROHIBITION BY COURT – SEC 259(1) CC FROM 20APR2011 TO 20APR2012 CAUSE 12 MONTH AUTOMATIC PROHIBITION – SEC 99 MVA FROM 20APR2011 TO 20APR2012 CAUSE 1 YEAR SUSPENSION – SEC 232(3)(

a) MVA On April 6, 2011, Mr. Alves did not have a valid driver’s licence because ICBC prohibited him from driving pursuant to s. 91 of the Motor Vehicle Act because Mr. Alves had failed to satisfy a civil judgment arising out of a motor vehicle accident. VICTIM IMPACT STATEMENTS [ 57 ] Selena Wong, Mrs. Wong's daughter, provided a victim impact statement. She explained her mother followed her father from China to Canada. Her father died at a relatively young age so Mrs. Wong had the responsibility of raising four daughters which she did by working as a seamstress. Mrs. Wong was the matriarch of the family.

She was its centre and the glue that kept the family together. Family life centred on her. Her daughter wrote that Mrs. Wong taught them the importance of family life. No matter what they did or how successful they became the family always came first. Her children took great joy in being with her. Her daughter described her as a typical Asian woman who believed tradition and culture was of utmost importance. She was also a simple woman who did not need a lot to make her happy. She enjoyed tai chi, taking long walks and having coffee with her friends.

However, her greatest passion was her family, especially her grandchildren. Her daughter wrote that losing a parent is always difficult but to have lost her mother suddenly and so senselessly was absolutely devastating. She and her sisters are reminded of the accident whenever they cross the street or when they see someone making a left-hand turn when there are pedestrians crossing the street. [ 58 ] Jessica Mui, wrote a victim impact statement on behalf of all Mrs. Wong’s grandchildren. In her statement she explained what a lively, vibrant and active woman her grandmother was.

She wrote it was particularly troubling that her death occurred at the intersection in the very neighbourhood where all her grandchildren grew up. That neighbourhood, which has more than 40 years of memories, is now tainted by the memory of her death. Her granddaughter noted that what made this tragedy worse is that her grandmother died across the street from her home. Ms. Mui recounted fond memories of her grandmother and all she did for her children and grandchildren. She explained how much they all missed her.

She ended by saying there are not enough words to explain how the loss of their grandmother has affected all the grandchildren. They will forever have a void in their hearts. The purpose and principles of sentencing [ 59 ] It is my duty to determine a fit sentence for Mr. Alves for the offence of leaving the scene of an accident. Imposing a sentence for any driving-related offence that involves a person’s death is a sad and delicate task. On one hand it is important to acknowledge the tragic loss sustained by Mrs.

Wong’s family as a result of the accident; on the other hand any sentence I impose cannot compensate the family for the loss of a mother and grandmother or for the suffering arising from that loss. The sentence imposed is not a measure of the value of the victim’s life. In imposing a sentence on Mr. Alves, my role is not to compensate Mrs. Wong’s family for their loss. That is not the purpose of sentencing.

[ 60 ] The fundamental 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 with the specific objectives set out in s. 718. Sentencing is an individualized process which requires me to consider the objectives of sentencing in light of the circumstances of this offender and on the facts of this specific case. The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The main sentencing objectives in this case are denunciation, deterrence, both specific and general, and rehabilitation of the offender. Range of sentence [ 61 ] The case law submitted by the Crown and Mr. Alves indicates that sentences imposed for the offence of leaving the scene of an accident under s. 252 of the Code range from a custodial sentence of three months to a custodial sentence of 18 months. In some cases, sentences have been served in the community. In R. v.

Zhang 2007 BCPC 221 , a case in which the accused pled guilty to failing to stop at the scene of an accident and dangerous driving, Galati Prov. Ct. J. undertook a detailed review of a number of sentencing cases addressing similar, but not necessarily identical, circumstances as those before me. Some cases are also reviewed in R. v. Gill 2010 BCCA 388 . In this case the Crown submits an appropriate sentence is 8 1/2 to 9 months in jail, followed by two years probation.

The defence takes no issue with the length of sentence proposed by the Crown but submits an appropriate sentence is a conditional sentence order in the range of 12 to 18 months, followed by one year probation. A fit sentence for Mr. Alves in the circumstances of this case [ 62 ] I am satisfied that a sentence that falls in the provincial range would be appropriate in the circumstances of this case. Additionally, there is no minimum sentence for the offence of leaving or failing to remain at the scene of an accident. Accordingly, the first two prerequisites set out in s. 742.1 of the Code are met.

I must next consider the third prerequisite, that is, whether allowing Mr. Alves to serve his sentence in the community would not endanger the safety of the community. If the third prerequisite is met, I must consider whether a conditional sentence in this case meets the fundamental purpose and principles of sentencing. [ 63 ] Given Mr. Alves’ driving record, the fact that he was convicted of impaired driving causing bodily harm for an incident that occurred in July 2010, and the fact he was driving without a licence in April 2011, I have significant concerns about the risk he poses to the community.

However, I need not decide this issue because I have concluded a conditional sentence is not consistent with the objectives of denunciation and deterrence, which are the most pressing sentencing objectives in this case. I am aware rehabilitation is also an important sentencing objective; however, in the circumstances of this case I do not attach as much weight to rehabilitation as I do to deterrence and denunciation. I am not satisfied that a conditional sentence with strict conditions would meet those objectives in this case. [ 64 ] I have taken into account the mitigating and aggravating factors outlined by Mr.

Alves. In particular, I have considered Mr. Alves’ personal circumstances, his age, health and background, the fact that he eventually did turn himself in to the police and that he entered a guilty plea which, in part, spared the victim’s family from to revisiting painful memories regarding Mrs. Wong's death. However, I have also taken into account the seriousness of the circumstances of this offence.

In particular, I have taken into account his level of moral responsibility and his lack of consideration and concern for the victim. [ 65 ] The Code and the case law both emphasize that each case must be considered on its own merits. I must assess Mr. Alves’ moral responsibility and blameworthiness in the circumstances of this case and in relation to the charge to which he pled guilty. I fully appreciate that in sentencing Mr. Alves today I am sentencing him on the offence of failing to remain at the scene of an accident. I am not sentencing him for causing Mrs.

Wong’s death because that is not the offence with which he was charged. [ 66 ] In the circumstances of this case I have concluded that a fit sentence is 4 months in jail. In reaching my conclusion on the length of sentence, I have taken into account the fact there has been a guilty plea and other mitigating circumstances. I have also taken into account the sentence imposed in similar circumstances in Peragine where the offender's conduct in leaving the scene was much more egregious than that of Mr. Alves. Following the custodial sentence, Mr. Alves will be placed on probation for a period of 18 months.

Given the fact that he was driving while prohibited at the time of the accident a term of probation is necessary to assist him in complying with court orders. The conditions of the probation order will be addressed with counsel. I am also ordering Mr. Alves to provide a sample of his DNA pursuant to s. 487.051 (3) (b). There will also be a two year driving prohibition pursuant to s. 259 (2) of the Code as well as s. 98 of the Motor Vehicle Act . The victim fine surcharge is waived. CONCLUSION [ 67 ] In

summary, for the reasons set out above I have concluded: (

a) Mr. Alves’ conduct in the circumstances of this case constitutes a serious personal injury offence as defined in s. 752 of the Code . Accordingly, a conditional sentence is not available to him. (

b) Even if a conditional sentence had been available, I would not impose it because it is not consistent with the purpose and principles of sentencing. (

c) Mr. Alves is sentenced to 4 months in jail to be followed by 18 months probation. (

d) He will be subject to the following ancillary orders: (

i) to provide a sample of his DNA, and (ii) a driving prohibition of 2 years.

_____________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia APPENDIX A Crown cases on serious personal injury offence: R. v. Helten, [2007] BCJ No. 2622 R. v. Dhaliwal, [2008] BCJ No. 2742 R. v. Waddell, [2005] BCJ No. 1600 R. v. Yuzicapi, [2011] SJ No. 706 (Sask CA) R. v. Goulet, 2011 ABCA 230 , [2011] AJ No. 840 (Alta CA) R. v. Lebar, 2010 ONCA 220 , 2010 CarswellOnt 1625 (OCA) R. v. Ponticorvo, 2009 ABCA 117, 448 AR 275, (Alta CA) R. v. Ali, [2010] AJ No. 1475 (Alta PC) R. v. C.P.M., 2009 ABPC 58 , [2009] AJ No. 247 R. v. Schmitt, 2011 CarswellOnt 12061 R. v.

Foley, [2010] NSJ No. 641 (NSSC) R. v. Barton, 2010 NBBR 51 , 2010 NBQB 51 (NB) Crown cases on quantum of sentence R. v. Gill, [2010] BCJ 1691 R. v. Zhang, [2007] BCJ No. 1530 R. v. Toms, 2009 ABCA 318 , [2009] AJ No. 1010 R. v. Hatfield, [1980] NSJ No. 443 R. v. O’Neill, [2006] AJ No. 1121 R. v. Ramdass, [1992] OJ No. 177 R. v. Sampson, [1982] NSJ No. 52 R. v. Gummer [Ont. CA] OJ No. 181 Defence cases

R. v. Goulet 2011 ABCA 230 R. v. Schmitt, 2011 ONCJ 546 , [2011] OJ No. 4961 R. v. Dhaliwal, [2012] MBQB 155 R. v. Sanghera, [2009] BCJ No. 128 R. v. Helten, [2007] BCJ No. 2622 R. v. Waddell, [2005] P.C.J. No. 1600 R. v. Taha, [2003] AJ No. 1360 R. v. Reinelt, [2004] BCJ No. 2952