R. v. Silva, 2021 MBPC 54

CITATION: R. v. Silva , 2021 MBPC 54 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) S. Harland for the Crown ) ) - and – ) ) ) Marco Pedro Silva Accused ) ) ) K. Bueti and D. Davis for the Accused ) ) Reasons for Decision ) Delivered: November 23, 2021 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] This is a sentencing decision. Mr. Silva pleaded guilty to a charge of drive impaired cause bodily harm that occurred on September 24, 2020. His vehicle hit the victim’s vehicle almost head-on just before 5:00 p.m. on a clear weekday afternoon.

The victim, a 25-year-old journeyman plumber, was gravely injured and continues to be impacted physically and psychologically by the crash. The 45-year-old Mr. Silva does not have a criminal record. He is himself a hard-working labourer and a husband and father of three daughters. He is also a permanent resident from Portugal who now faces deportation. [ 2 ] The Crown is seeking a jail sentence of nine to 12 months. The defence is seeking a community-based disposition, or an intermittent sentence, or a sentence of less than six months.

The Manitoba Court of Appeal has established a range of sentences for impaired driving cause bodily harm of between six months and 24 months. FACTS [ 3 ] Just before 4:40 p.m. on Thursday, September 24, 2020, Connor Griffin was driving home from work in his Ford Fusion car, northbound on Highway 6 near Grosse Isle, Manitoba. Marco Silva was also driving home from work. He had consumed eight or nine drinks the night before, had a beer at lunch time that day and then drank about a half bottle of wine in the afternoon. He was driving a Chevrolet Silverado owned by the company for which he worked.

He stated that he did not feel intoxicated, but readings later obtained by the police show that he had more than three times the permitted level of alcohol in his system; his blood alcohol readings were 278%. [ 4 ] Dash cam video from another vehicle showed that Mr. Silva turned onto the highway cutting off a semi trailer, and overshot the lane, then drove into a ramp lane and eventually corrected to his proper lane. He accelerated and approached a curve in the highway, just as Mr. Griffin was driving towards him on that curve. Mr. Silva did not successfully navigate the curve; he drove straight into Mr.

Griffin’s car. [ 5 ] The video of the crash was played at the sentencing hearing and filed as an exhibit. It is shocking to see the vehicles driving what appeared to be normally and then suddenly, with no warning, Mr. Silva’s vehicle drove straight into Mr. Griffin’s vehicle as both vehicles attempted to negotiate the curve. Mr. Griffin’s vehicle was hit essentially head-on and spun off the road. [ 6 ] Both drivers were pinned in their vehicles. Mr. Griffin was critically injured. The STARS Helicopter was summoned, but not available, so Mr.

Griffin was driven by ambulance to the Health Sciences Centre where he underwent lifesaving measures and then surgeries. [ 7 ] Later that evening police enquired at the hospitals – Mr. Griffin was in unstable and critical condition. Mr. Silva was in stable condition. [ 8 ] Within days, the police applied for a production order from the hospital to obtain Mr. Silva’s medical records, since one of the investigating officers smelled the odor of liquor in Mr. Silva’s vehicle. The records revealed a high blood alcohol level. The police

subsequently obtained a warrant to obtain blood samples from the hospital lab, which they received, and the blood samples were sent tothe RCMP laboratory in Ottawa for a blood-alcohol analysis on November 25, 2020. On December 4, 2020, the police received themedical records for Mr. Griffin, which detailed several fractures and serious injuries. The police received the laboratory results of Mr.Silva’s blood-alcohol levels on January 22, and on February 1, 2021, they arrested him for impaired driving cause bodily harm. THE PURPOSE OF SENTENCING [9]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society and to contribute torespect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of thefollowing objectives:

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

THE SENTENCING OBJECTIVES IN THIS CASE [10] Striving to meet the goals of respect for the law, and maintenance of a just, peaceful and safe society by imposing a sentencefor this offence engages several sentencing objectives, including denunciation, general and specific deterrence, reparations for harm doneto the victim, and to promote a sense of responsibility in the offender and an acknowledgement of the harm done to the victim. [11] It is well-known law that cases involving impaired driving where death or bodily harm are caused, attract the objectives ofdenunciation and deterrence.

Many impaired drivers are otherwise law-abiding citizens. Imposing jail sentences for impaired driving isthereby recognized as an effective deterrent. As Chief Justice Wagner stated for the Supreme Court of Canada majority in R. v. Lacasse,2015 SCC 64: In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts fromvarious parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’scondemnation: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), at para. 129; R. c.

Lépine, 2007 QCCA 70 (C.A. Que.), at para.21; R. c. Brutus, 2009 QCCA 1382 (C.A. Que.), at para. 18; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185 (Alta. C.A.), at para. 21; R. v.McIlwrick, 2008 ABQB 724, 461 A.R. 16 (Alta. Q.B.), at para. 69; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284 (Ont. C.A.), atparas. 46-47; R. v. Ruizfuentes, 2010 MBCA 90, 258 Man. R. (2d) 220 (Man. C.A.), at para. 36. (at para. 5) And, While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences thatmight be committed by ordinarily law-abiding people.

It is such people, more than chronic offenders, who will be sensitive to harshsentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: [D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimesare often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the onesmost likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145(Ont. C.A.), at p. 150; R. v.

Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v.Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] (at para. 73)(Emphasis added.) [12] Notwithstanding the sentencing objectives that are engaged in this case, the overarching principle in sentencing isproportionality, that is, the sentence must be proportional to the seriousness of the offence and the degree of responsibility the offenderhad in committing the offence. PROPORTIONALITY The Seriousness of the Offence [13] The offence was serious because of the severe injuries to Mr. Griffin.

He prepared a Victim Impact Statement filed as anexhibit in this sentencing. Mr. Griffin spent two weeks in the Health Sciences Centre trauma ward. He underwent two major surgeriesimmediately. The first was to repair a torn diaphragm, his chest wall and a collapsed lung, and the other was to remove his ruptured spleen. He had a number of fractures: left shoulder, left hip, left 8th rib, sternum, and three transverse process fractures on the left side ofhis spine. His right hip was dislocated. He had a puncture wound to his right eye which resulted in a corneal laceration.

He also had adeep laceration to his left forearm, requiring extraction of glass and staples to close. [14] Mr. Griffin spent seven weeks using a wheelchair and then crutches. He went to physiotherapy three times a week for fourmonths, then reduced the physiotherapy visits to twice a week. [15] He missed five weeks of work, then had a graduated return to work over six weeks. [16] A year later, he was still experiencing pain and discomfort with certain physical movements and activities and in his hips and

back. Ongoing back pain requires him to attend to a chiropractor weekly. He has permanent partial vision loss not corrected by prescription lenses due to the corneal scar, which will require continual monitoring. [ 17 ] He has a nine-inch scar from his breastbone to below his belly button, a seven-inch scar across his left ribs, a four-inch by four- inch scar on his left forearm and various smaller scars from glass lacerations and medical tubes. [ 18 ] The collision and injuries have also had emotional consequences for Mr. Griffin.

He has anxiety about performing more physical tasks in his work as a journeyman plumber. He worries about re-injuring himself. He also suffers anxiety when he passes the collision location on the highway – the marks are still visible on the pavement. [ 19 ] There have also been financial consequences. He had to replace his commuter vehicle at a higher cost than the amount that he was reimbursed by Manitoba Public Insurance (MPI). He lost wages during the initial weeks after the injuries.

He did not get MPI coverage for wireless earbuds, and the cost of a replacement archery bow, which he needs because of the required change to his dominant eye. [ 20 ] The Victim Impact Statement impressed me as being straightforward and understated. It impressed me that this is a young, healthy man in the prime of his life and successful career has been very badly injured and that these injuries will be long-term if not permanent. The Offender [ 21 ] A Pre-Sentence Report (PSR) was filed in this case. Mr.

Silva was born and raised in Azores, an island off the coast of Portugal, and he holds Portuguese citizenship. He was born to a farm family and I infer it was a family without wealth. He obtained the equivalent of a grade eight education, then had to work on the farm, and then worked making cattle feed for a couple of years. He served six months in the Portuguese army to allow him to receive permission to leave the country and emigrate to Canada. He immigrated here to be with his now wife, whom he met when she was visiting Portugal to visit her family. [ 22 ] Mr. Silva has been in Canada for 25 years.

He and his wife have raised three daughters, aged 23, 21, and 13, all of whom still live with them. [ 23 ] Mr. Silva has always worked in Canada, as a labourer, then cement finisher, lead hand and foreman and then as foreman and supervisor for a rail products company, where he currently works. He worked hard to achieve the position, which came with increased pay and responsibility.

Since this offence, the company placed him on probation for a year and demoted him, such that he received less pay. [ 24 ] The company also requires that he abstains from alcohol and non-prescription drugs, complete Addiction Foundation Manitoba (AFM) programming and provide alcohol screens, because he was driving a company vehicle at the time of the offence. He has been compliant with these conditions and has passed all the random urinalysis tests.

All reports from former and current co-workers are very positive. [ 25 ] He was initially off work for some time because of the broken leg he suffered during the collision. He also required physiotherapy before he was cleared to return to work. He continues to have ongoing and recurring pain from the injury. [ 26 ] He is the primary wage-earner in the family. His wife is a health care worker at a facility that is scheduled to close in August, 2022. [ 27 ] His youngest daughter suffers from a severe form of epilepsy which requires several medications and medical treatment out of province at times.

Manitoba Health and Mr. Silva’s health care coverage do not cover the entirety of the medical costs. [ 28 ] Mr. Silva had never been a big drinker until about a month before this offence. During 2020, his father in Portugal became very ill and then died. Because of the COVID-19 pandemic, Mr. Silva was unable to travel to Portugal to see his father, or say goodbye to him. This has had a profound and grievous effect on Mr. Silva, initially driving him to over-drink. The over-drinking affected not only his work, but his relationship with his wife.

He told the PSR writer that he had been drinking heavily everyday that month. He was surprised by his high readings, because he did not feel drunk or even “half-drunk” that day. I infer that Mr.

Silva was drinking so excessively at the time that his blood-alcohol content remained at a higher level than normal. [ 29 ] He has good insight into how drinking has affected his life and the offence and has stopped drinking since the offence occurred, except for one occasion where his cousin, who was not aware of the offence, was encouraging him to have a drink. [ 30 ] He is very remorseful for the harm this offence has caused to Mr. Griffin.

He expressed it in the PSR, his wife and other family and co-workers spoke of it in the PSR, and he expressed it in Court, querying whether there was anything he could do to help Mr. Griffin. [ 31 ] Mr. Silva is a good husband and is devoted to his daughters and extended family. He regularly communicates with family in Portugal via FaceTime and socializes with family here, including helping out an older relative. He is involved in the Portuguese community and his church. [ 32 ] Mr.

Silva’s moral culpability in these circumstances was reduced by the state of depression and grief he was in at the time, which in turn led him to begin drinking heavily. It is clear that he did not have a drinking problem either before or since this offence. IMMIGRATION CONSEQUENCES [ 33 ] Mr. Silva is facing deportation as a result of this conviction. If his sentence is six months or more, he will be deported without recourse to an appeal.

[34] These consequences must be taken into account as part of the personal circumstances of Mr. Silva. As Justice Wagner (as hethen was) explained in R. v. Pham, 2013 SCC 15, . . . the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They maybe taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating ormitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of theoffender (s. 718.2(

a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity.(at para. 11) [35] In Pham, the Supreme Court held that collateral consequences related to immigration may be relevant in tailoring the sentence,the significance depending on and determined in accordance with the facts of the case. The general rule is that the court may takecollateral immigration consequences into account, provided that the sentence is still proportionate to the gravity of the offence and thedegree of responsibility of the offender, in other words, if it is proportional.

The mischief sought to be avoided is that artificial orinappropriate sentences are not imposed in order to avoid the collateral immigration consequences: “These consequences must not beallowed to dominate the exercise or skew the process either in favour of or against deportation.” (Pham, at para. 16) [36] The Supreme Court held that: . . . the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remainproportionate to the gravity of the offence and the responsibility of the offender.

Conversely, the closer the varied sentence is to therange of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thusreasonable and appropriate. (at para. 18) [37] The Supreme Court adopted Justice Doherty’s position from R. v. Hamilton (2004), (ON CA), 72 O.R. (3d)1 (Ont.C.A.) at paras. 156 and 158: . . . The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicatedabove, however, there is seldom only one correct sentencing response.

The risk of deportation can be a factor to be taken intoconsideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender . . .. . . . If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [theoffender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day asopposed to a sentence of two years. I see this as an example of the human face of the sentencing process.

If the future prospects of anoffender . . . can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keepingwith the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by theimposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impacton broader societal interests occasioned by the imposition of that sentence . . . . [Citations omitted.] [Emphasis added] [38] Mr.

David Davis is an immigration lawyer who provided detailed information to the Court in legal argument, case law and aletter from the Canadian Bar Association (CBA) Immigration Law

Section to Minister of Immigration, Refugees and Citizenship Hon.Ahmed Hussen, dated July 6, 2018. The materials and submissions focussed on the history and process involved when someone who isnot a Canadian citizen is convicted of or pleads guilty to a criminal offence. Mr. Silva is a permanent resident.

Once this conviction isregistered, the Canadian Border Services Agency (CBSA) will issue a deportation order. [39] The Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 (FRFCA) amended the Immigration and Refugee ProtectionAct, S.C. 2001, c. 27 (IRPA), removing judicial oversight and many procedural safeguards and concentrated discretionary powers in theMinister. [40] For the purposes of this case, the most important change is that a noncitizen who is convicted of an offence in the category of“serious criminality” who receives a sentence of six months or more is no longer able to appeal their deportation order from Canada.

Inthe past, only people sentenced two years or more for a “serious criminality” offence lost their appeal rights. [41] The passage of Bill C-46 (An Act to amend the Criminal Code (offences relating to conveyances) to the make consequentialamendments to other Acts, S.C. 2018, c. 21) increased the penalties for impaired driving offences with the unintended consequence thatimpaired driving offences are now considered to constitute “serious criminality” under the IRPA.

In fact, the situation of thoseindividuals caught up in the net of “serious criminality” is most acute for impaired driving offences, which the CBA focussed on in itsletter to the Minister. [42] A permanent resident convicted of or pleading guilty to an impaired driving offence is now considered a serious criminal. Theybecome “inadmissible” to Canada and subject to loss of their permanent resident status. And, as mentioned earlier, if they are sentencedto at least six months imprisonment, they lose appeal rights under the IRPA.

As the CBA letter points out, a Canadian citizen facing asummary proceeding first impaired driving offence may face a fine of $1,000, while a permanent resident might be deported andseparated from their family, possibly without appeal. [43] That is the situation Mr. Silva is facing. [44] Before December 2018, a permanent resident in Mr. Silva’s circumstances would be able to appeal a deportation order. Thatright of appeal has been removed.

The CBA, in its July 2018 letter to the Minister, described the consequences as follows: The lack of meaningful review is particularly harsh for long-term permanent residents who, in many cases, have been in Canada sincechildhood. Also, the loss of a right to IAD appeal significantly limits the opportunity to advance relevant considerations, such as the bestinterests of any child affected, hardship of removal on family members, the actual circumstances of the offence, lack of any priorcriminal history, and likelihood of rehabilitation – factors that would reasonably be considered in Immigration Appeal Division

proceedings. (at p. 2) [ 45 ] If Mr. Silva’s sentence is less than six months, he can appeal the deportation order and have the appeal heard by an administrative tribunal under the Immigration and Refugee Board (IRB) where he has a right to counsel and other administrative rights. The appeal would consider factors similar to what a judge considers in sentencing criminal offences, known as the “Ribic” factors, ( Ribic v. Canada (Minister of Employment and Immigration) (1986), 1986 CarswellNat 1357 (Imm. App.

Bd.) such as the seriousness of the offence, the risk to the public, the appellant’s rehabilitation to date and prospects for rehabilitation, the background, family and character of the appellant, how long they have been in Canada, and the degree of hardship the removal of the appellant would be on them and their family. The member of the IRB hearing the appeal can dismiss it, grant it, or allow the appeal with conditions that are rehabilitative in nature. PARITY [ 46 ] The principle of parity requires that similar offenders who commit similar offences receive similar sentences.

Counsel was unable to find any cases where persons convicted of impaired driving offences faced the dire immigration consequences facing Mr. Silva. Nonetheless, I must take those consequences into account as they form a part of his personal circumstances. [ 47 ] The Supreme Court observed in Lacasse , that sentences for impaired driving offences had in recent years increased, in response to a lack of reduction in the crime: The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol- Impaired Driving: A Common Approach (2009), at p. 5. (at para. 7) [ 48 ] The Manitoba Court of Appeal set the range for impaired driving cause bodily harm sentences in R. v.

Smoke , 2014 MBCA 91 at six to 24 months. [ 49 ] The defence initially filed three Manitoba cases decided prior to Smoke , prior to the higher range of sentencing for impaired driving offences. [ 50 ] The case of R. v. Audy , 2010 MBPC 55 , involved an Indigenous woman from a small, remote northwestern community. One of the passengers injured in a rollover suffered permanent injuries. Ms. Audy was extremely remorseful. Judge Slough declined to impose an intermittent sentence, given the impracticality of the four-hour drive to the closest women’s correctional facility. He found that Ms.

Audy’s moral culpability was significantly reduced by her circumstances as an Indigenous woman. He imposed a $1,000 fine and 18 months of supervised probation. [ 51 ] R. v. Henderson , 2012 MBCA 9 involved a case with exceptional facts. The accused had an extreme reaction to prescription drugs. She was extremely remorseful.

In upholding the suspended sentence and two years of probation, the Court of Appeal noted her reduced moral culpability and mitigating factors. [ 52 ] My observation about these two cases is that the non-custodial sentences were warranted because of the offenders’ reduced moral culpability, reduced by circumstances that are not present in Mr. Silva’s case. [ 53 ] In R. v. Gomez , 2013 MBQB 43 , the 22-year-old accused received a three- month intermittent sentence. He was driving several friends to a nightclub to celebrate a birthday, after having some drinks at his girlfriend’s apartment.

The night was snowy and stormy and the roads were slippery. Mr. Gomez drove into a hydro pole and two of his passengers were injured, one having a broken wrist and two fractured vertebrae and the other having a broken humerus leaving him with a permanently crooked arm. The accused had lower blood alcohol readings than Mr. Silva (180%). He took many rehabilitative steps subsequent to the offence. The PSR was very positive and he expressed remorse. The circumstances of the offence are more serious in Mr.

Silva’s case: his readings were over three and one half times the legal limit, the injuries to the victim were extremely serious and long term and the offence occurred on a highway with higher speeds and at a time of day that many vehicles were returning home from work. [ 54 ] The only case decided since Smoke that counsel was able to find was R. v. Renz , 2019 MBQB 172 , filed by the Crown.

The injuries to the victim were more extreme and permanent than in this case, described as “life altering permanent injuries”; the victim was in hospital for three months, had not been able to return to work and suffered ongoing pain. The driving was also more egregious than in Mr. Silva’s case. Significantly, the accused took different prescription drugs with the objective of dying by suicide, and then drove. The behaviour was found to be completely out of character. Subsequently, the accused was extremely remorseful and insightful and took steps to address her underlying issues.

Justice Keyser imposed a sentence of 12 months. [ 55 ] In that case, however, there were two other post- Smoke Manitoba decisions discussed by Justice Keyser. In both cases, sentences of six months were imposed. [ 56 ] The first was R. v. Chaudhary , 2019 MBPC 53 , where the accused who did not have a driver’s licence, decided to practise driving after he had been drinking. He veered off the street onto a sidewalk striking several parked cars and a bus bench and his passenger suffered a broken leg. Judge Corrin imposed a six-month jail sentence. [ 57 ] In R. v.

Anderson , 2017 MBCA 31 , the Manitoba Court of Appeal substituted a six-month sentence for the 90-day intermittent sentence originally imposed, on the basis that the aggravating factors of the offence had been minimized. Mr. Anderson was of Indigenous heritage. He had driven in the wrong direction on the Perimeter Highway into oncoming traffic and collided with a vehicle, injuring three people. One victim suffered a skull fracture and a fractured hand; another had a shattered kneecap and was laid off his job.

The accused’s BAC was more than double the legal limit and he was making jokes and “high fives” with paramedics. [ 58 ] Importantly, the Court of Appeal noted in Anderson , “There will be cases where such a departure from the guidelines is

warranted. This is not one of them” (at para. 30). [59] In this case, a sentencing continuation was scheduled, for defence counsel to provide more information about the immigrationconsequences and so that counsel could file the other case law to which she had referred but not filed. [60] Defence counsel filed several cases from jurisdictions other than Manitoba. They are of limited value, except I observe that itappears the range of sentences for impaired driving cause bodily harm cases from other provinces are not as high as in Manitoba.

Thestarting point sentence in the Yukon was noted by the Yukon Court of Appeal as four months in R. v. Schinkel, 2015 YKCA 2, and therange from four to 10 months in R. v. Kuhl, 2018 YKTC 27 and R. v. McCluskey, 2019 YKTC 20. In R. v. Leung, 2016 BCSC 214,Justice Johnston, after canvassing an extensive number of cases, determined a wide range of sentencing in British Columbia, from asuspended sentence to three and one half years (where the accused also struck and killed two people). In R. v.

Salandra, 2016 ONCJ 79,Justice Stribopoulos stated that the range in Ontario appeared to be two to three months to 18 months. (confirmed in R. v Pupo, 2016ONCJ 733). In Newfoundland and Labrador in R. v. Simpson, 2018 NLSC 197, Justice Chaytor canvassed the ranges set out in severalcases in that province, the most recent in R. v. Anstey, 2013 NUCJ 25 , [2013] 332 Nfld. & P.EI.R. 216 (NL Prov.

Ct.), rangingfrom 90 days intermittent to two years. [61] It should be observed that none of the cases filed by counsel involved the significant collateral consequence of deportationwithout appeal. [62] That being said, an individualized approach to sentencing is always taken, with observance of the fundamental principle set outin

section 718.1 of the Criminal Code, that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender (R. v. Nasogaluak, 2010 SCC 6 at para. 44 and R. v. Lacasse, 2015 SCC 64). [63] Lacasse was in fact an impaired driving case. The young, impaired driver lost control of his vehicle on a curve in the road andtwo of his passengers died. He was originally sentenced to six years imprisonment. The Supreme Court of Canada substituted asentence of four years. [64] Parity works hand in hand with the overarching principle of proportionality.

Sentencing ranges are short hand for applyingproportionality and parity. [65] But parity and sentencing ranges alone cannot be determinative of a fit sentence. In Lacasse, Chief Justice Wagner stated: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44)(cited inLacasse, at para. 58) [Emphasis added] [66] This is a situation that calls for a sentence at the lower end of the range for impaired driving cause bodily harm cases inManitoba. I have already noted that Mr. Silva’s moral culpability was reduced.

I observe that most of the sentences for impaired drivingcause bodily harm offences in Manitoba since Smoke, have been at the low end of the range, that is, six months. I especially note thatthe jail sentence substituted by the Court of Appeal in Anderson was six months. [67] It is also important to take into consideration mitigating and aggravating circumstances. Mitigating Circumstances [68] At the time of the offence, Mr. Silva was in a state of profound grief and depression, due to his father’s illness and death,exacerbated by his inability to see his father during the COVID-19 pandemic.

He was drinking heavily at the time, completely out ofcharacter for him, because of this state of distress. [69] He has pleaded guilty from the outset. This matter was never set for trial. [70] Additionally, Mr. Silva is remorseful, insightful and has followed all requirements to keep his job. [71] He does not have a criminal record. He has significant family, church and community support. I have already outlined hisdevotion to his wife and daughters, and the extra financial and medical care required for his youngest daughter. I observed that his wifewas present during the sentencing hearings in Mr.

Silva’s support. [72] The presentence report is positive. Mr. Silva is considered a low risk to reoffend. Aggravating Circumstances [73] I have already discussed the seriousness of the offence. The offence’s significant impact on Mr. Griffin’s physical and mentalhealth and well-being, financial and work is statutorily aggravating pursuant to Criminal Code

section 718.2(a) (iii.1). Mr. Silva’s highalcohol readings are also aggravating.

SENTENCE [ 74 ] In coming to a final determination about the sentence to impose in this case, I have attempted to balance an extremely serious offence, in terms of the harm caused to young Mr. Griffin, with the impact of sending a person like Mr. Silva to jail for any length of time. A jail sentence of any duration for Mr. Silva is an extremely significant consequence for this man and his family. He is a hard- working, middle-aged family man without a criminal record. He is the main income earner. He has already suffered significant financial and employment consequences from this offence.

His family will be impacted by his separation from them, and the absence of his income. And yet, on balance, a jail sentence is required to send a strong message of denunciation and deterrence to other law-abiding members of the community who may otherwise be tempted to have a drink or two at lunch or after work, with potentially disastrous or deadly consequences. [ 75 ] A sentence of approximately six months would be appropriate. [ 76 ] I have also taken into consideration however the additional unintended but inevitable collateral consequences of a six month or greater jail sentence to Mr. Silva and his family.

Imposing a sentence of six months or more would effectively impose a punishment on Mr. Silva and his family that is beyond what is necessary and greater than Mr. Silva’s responsibility in committing this offence. It would be contrary to the overarching sentencing principle of proportionality. As Justice LeBel stated in R. v. Nasogaluak , 2010 SCC 6 : . . . the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it .

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. (at para. 42)(Emphasis added.) [ 77 ] I adopt Justice Doherty’s observation, that considering the immigration consequences to Mr. Silva is the human face of sentencing. A proportional sentence that does not destroy his life and that of his family in Canada is still possible in this case. [ 78 ] The sentence will be one of six months less one day. Following that, Mr.

Silva will be placed on a period of supervised probation for six months. [ 79 ] In addition to the mandatory conditions, the conditions of the probation order are: - Report to Probation Services within one week of your release from jail and thereafter as required; - Attend an addictions assessment to determine if any further alcohol programming is warranted; - Take any counselling to address grief issues; - Write a letter to the victim, to be provided to the Probation Officer. [ 80 ] There will also be a driving prohibition pursuant to

section 320.24(4) during the entire length of Mr. Silva’s jail sentence, that is, six months less a day, plus one year after his jail sentence. During that time he is prohibited from driving anywhere in Canada. Costs and surcharges are waived. “Original signed by:” C.A. DEVINE, P.J.