Her Majesty the Queen - v. -, 2013 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 011 Date: January 30, 2013 Information: 24438546 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tanner Hallett Courtney Appearing: B. Bauer , Q.C. For the Crown M. Brayford, Q.C. For the Accused JUDGMENT M. M.

BANIAK , J [ 1 ] The accused, Tanner Courtney, pled guilty to count 1 of the Information, namely, that: On or about the 20 th day of May, A.D. 2012, at or near Prince Albert in the Province of Saskatchewan while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and did thereby cause the death of Benedict Darchuk contrary to section 255(3) of the Criminal Code .

I. BACKGROUND [ 2 ] By way of background, the facts leading to the charge and subsequent plea, can be summarized as follows. [ 3 ] On May 20, 2012, at approximately 8:30 p.m. the deceased, Mr. Darchuk, was on his way to the family cottage at Emma Lake. The accused was coming from the lake to Prince Albert. Approximately nine kilometres north of Prince Albert the accused’s vehicle collided with Mr. Darchuk’s vehicle head on. [ 4 ] According to a witness statement, the accused drove erratically. He drove in a manner which would, in the words of the witness be consistent with either being drunk or being asleep.

I quote, “So we were driving and I noticed he was jumping in and out of lane. I thought the driver was joking. Maybe he was not drunk - maybe he was falling asleep.” [ 5 ] According to the accident reconstructionist, Mr. Darchuk tried to avoid the accident. His vehicle left skid marks. The accused’s vehicle left no skid marks which would suggest that he did not apply his brakes. The accused drove 99 - 100 km/hr at the time of the accident.

The speed limit on this highway is 100 km/hr. [ 6 ] Blood samples taken from the accused about one hour and forty-five minutes after the collision produced a reading of 123 milligrams of alcohol in 100 millilitres of blood. [ 7 ] Additionally, the tests revealed the presence of cocaine in his system. As was pointed out by the Crown, cocaine, once it wears off, causes drowsiness and sleepiness. [ 8 ] Earlier in the afternoon - around 4:00 p.m. - the accused was observed drinking on the beach and was given a ticket for public intoxication. [ 9 ] Mr. Courtney is 22 years old.

From defence counsel’s submissions, as well as numerous reference letters provided by coaches, neighbours, his employer, as well as a neighbour who is a professional Parole Officer, a picture emerges of a young man who is well liked by his friends, teammates and co-workers. He is described as responsible, hard-working and respectful. Throughout his school years he took

part in extra curricular activities such as sports and cadets. [ 10 ] Ms. Janice Woytiuk, the parole officer who is also Mr. Courtney’s neighbour, has known him for 15 years. I quote one paragraph from her letter: In discussing this letter with Mr. Courtney, I asked him pointedly: “What about remorse Tanner, what are you feeling over all of this mess?

His response, which was most telling in my view was: ‘The real punishment is the fact that I have to live with the knowledge that I took a life, everyday for the rest of my life.’ ” [ 11 ] In the words of his counsel, he has great potential for becoming a good and productive member of society. [ 12 ] The victim’s family speaks of the huge loss and extreme sorrow that they feel on a daily basis. The wife, Leanne Darchuk, as well as her three children, Whitney, Julie and Jordan, all provided victim impact statements.

They all portray Ben Darchuk as a hardworking, loving and generous man who was the centre of their universe. [ 13 ] Understandably, they all view this as a senseless crime perpetrated by an irresponsible and selfish person. They want justice done, even though as they acknowledge, no sentence will bring their father and husband back.

[ 14 ] It is hoped that in time their anger and sorrow will yield to acceptance and hope. II. POSITION OF THE PARTIES [ 15 ] The Crown contends that the two most important factors in sentencing offenders who cause death while driving impaired are denunciation and deterrence.

It is pointed out that the accused had both alcohol and drugs in his system; he drove badly and the highway was very busy - particularly having regard to the fact that this was the May long weekend. [ 16 ] The Crown made specific reference to the Galloway [1] case and suggested that in this case an appropriate range would be in the two to two and a half year range.

The sentencing judge in Galloway stated that the range for impaired driving causing death is 15 months to three years. [ 17 ] Additionally, the Crown is asking for a three year driving prohibition to commence upon the accused’s release, as well as an order for restitution payable to the deceased’s wife and daughters. [ 18 ] Defence counsel, stressing the accused’s age, lack of criminal history, profound remorse, early guilty plea and acceptance of responsibility, argues that a lengthy term of imprisonment in a correctional facility is an appropriate sentence.

In support of its position, defence points to the accused’s strong family support; his abstention from alcohol or drugs since the accident; and his observance of conditions while awaiting sentencing, as strong indicators that he is likely to obey any Court orders or driving prohibitions. [ 19 ] Both counsel submitted authorities in support of their respective positions. As already stated, I had the benefit of listening to the victim impact statements and reading the letters of reference. III. ANALYSIS [ 20 ]

Section 718 of the Criminal Code reads as follows: 718. 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 that have one or more of the following objectives: (

a) to denounce 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 and to the community. [ 21 ]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ]

Section 718.2(

b) states that: 718.2 A Court that imposes a sentence shall also take into consideration the following principles: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [ 23 ] It has long been recognized, and clearly enunciated by former Chief Justice Lamer of the Supreme Court ( R. v.

M. (C.A.) [2] ), that sentencing is a highly individualized process, subject to the unique facts and circumstances of each case: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [ 24 ] In the instant case, both the Crown and defence agree that only a custodial sentence is appropriate - they disagree, however, on whether this should be served in a Provincial correctional centre or in a penitentiary. [ 25 ] In crafting this sentence, I am assisted by decisions from all levels of Courts in this Province. [ 26 ] A cursory examination of some of these decisions may help in providing a contextual framework and rationale for the decision in this case. [ 27 ] In R. v.

Merrifield , [3] the Saskatchewan Provincial Court sentenced a 20 year old to 18 months in prison, with a three year driving prohibition for impaired driving causing death. The accused was driving 110 km/hr in a 50 km/hr zone. His remorse, as well as his taking responsibility and entering a guilty plea, were viewed by the Court as significant mitigating factors. [ 28 ] In R. v. Decap , [4] the Saskatchewan Court of Queen’s Bench, in a case involving dangerous driving causing death and dangerous driving causing bodily harm, sentenced a 20 year old to 18 months imprisonment and a three year driving prohibition.

The accused was speeding and he was impaired. He also had a previous conviction for impaired driving. [ 29 ] In R. v. Keller , [5] the accused was convicted of impaired driving causing the death of one person and the injury of another, and was sentenced to two years less a day, placed on probation for two years and prohibited from driving for two and a half years. She appealed arguing that the sentence, while appropriate, should be served in the community rather than in a custodial facility.

In rejecting her appeal, the Court of Appeal held that deterrence and denunciation were important factors in sentencing for an offence of this type, and that public interest took precedence over sympathy for the accused. Ms. Keller drove at least twice the speed limit and her blood alcohol level was more than twice the legal limit. She was 22 years old, and this was her first conviction.

[ 30 ] In R. v. Galloway [6] the Court of Appeal dismissed the appellant’s conviction and sentence appeal. The Court of Queen’s Bench convicted Ms. Galloway of: dangerous driving causing death (s. 249(4)); dangerous driving causing bodily harm (s. 249(3)); impaired driving causing death ( s. 255(3) ); impaired driving causing bodily harm (s. 255(2)); and leaving the scene of an accident without giving her name and address with the intention of avoiding civil or criminal liability (S. 255(1.2)). The Court sentenced Ms.

Galloway to two years imprisonment on the first four counts (with the same to be served concurrently) and six months consecutive for “leaving the scene” of the accident. The Court also imposed a three year driving prohibition. [ 31 ] The Crown contends that the facts in the present case closely mirror those in Galloway and that, accordingly, a similar sentence is warranted. I respectfully disagree. Ms. Galloway was convicted of multiple counts.

She was twice the age of the accused here; she had a previous convictions for driving while her blood alcohol exceeded .08; she refused to take responsibility and fought her charges until she exhausted her appeals; she showed absolutely no remorse and, in fact, tried to suggest that it was her husband who was the driver - even though he wasn’t even in the vehicle. In short this case is clearly distinguishable from Galloway . [ 32 ] As I have tried to point out, Courts at every level have repeatedly held that it is important to avoid disparity in sentencing.

It is important that the sentence is proportionate to the gravity of the offence, having regard to the mitigating and aggravating circumstances. [ 33 ] The Crown submits that this is a crime deserving of penitentiary time and asks for a sentence in the two to two and a half years range, and a three year driving prohibition. It contends that deterrence and denunciation must be paramount considerations. [ 34 ] Defence counsel submits that - having regard to the facts and the law - a lengthy term of imprisonment in a correctional facility is appropriate.

The accused’s lack of criminal record; his remorse and acceptance of responsibility; his standing in the community; and his strict observance of conditions since the accident, are cited as being mitigating factors. [ 35 ] In the present case, Mr. Courtney, while impaired, drove in a manner that resulted in the death of an innocent motorist. No excuse or explanation was given. There is clearly a need to denounce this offence and send a message to stress that drinking and driving will not be tolerated. Mr.

Courtney, despite his young age; his lack of criminal record; his good driving abstract; his remorse; as well as his exemplary conduct since his release on conditions; will have to spend a part of his life in jail. This fact alone will not bring back Mr. Darchuk, and it may not satisfy or console his family, but it is, under the circumstances, the end result of a tragic event. An event which will scar the Darchuk family indefinitely and which will force Mr. Courtney to live with the fact that his actions caused the death of another human being. IV.

CONCLUSION [ 36 ] Accordingly, having considered all of the above, I hereby sentence Mr. Courtney to two years less a day to be served at a Provincial correctional facility. [ 37 ] Pursuant to s. 259 (

a) of the Criminal Code , Mr. Courtney is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of three years following his release from custody. [ 38 ] In accordance with Provincial legislation, namely, s. 141 of The Traffic Safety Act , I have to advise that his driver’s licence is immediately suspended and he will be disqualified from obtaining a drivers licence in Saskatchewan. And, further, he is disqualified from driving a vehicle on any street, road, highway or other public place until such time as he obtains a valid driver’s licence.

He will also be required to pay a federal victim surcharge in the amount of $100.00 within 30 days of his release from custody. V. RESTITUTION APPLICATIONS [ 39 ] At the conclusion of its sentencing submissions, the Crown filed Restitution Applications from Leanne Darchuk, Whitney Darchuk and Julie Darchuk.

[ 40 ] The claims may be summarized as follows: Leanne Darchuk: - Lost income - May 20 - 26, 2012, $41/hr x 8 hrs x 4 days = - Lost income - May 31 - August 26, 2012 = - Deductible on truck contents $1,312.00 $7,152.00 $750.00 Total $9,214.00 Whitney Darchuk - Loss of wages from Father’s business (bookkeeping) $14/hr x 30 hrs - Loss of wages from employment: $235/day x 35 days $420.00 $8,225.00 Total $8,645.00 Julie Darchuk - Lost wages: 8 days at 8hrs/day = 64 hours x $15.22/hr - Return flight from Toronto for October 19, 2012 $974.08 $526.00 Total $1,508.08 [ 41 ] Section 738(1) of the Criminal Code addresses the issue of restitution, and it reads, in part, as follows: 738.

(1) Where an offender is convicted or discharged under

section 730 of an offence, the Court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows: (

a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable; (

b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; [ 42 ] Under paragraph (1)(

a) the offender may be required to pay restitution to person or persons whose property was lost or destroyed. This is most commonly applicable to cases of vandalism, mischief, fraud or breach of trust. [ 43 ] Under paragraph (1)(

b) the offender may be required to pay for pecuniary damages, including loss of income, to any person who suffered as a result of the commission of the offence, “if the amount is easily ascertainable”. [ 44 ] Restitution orders are made most often in cases of mischief, theft, fraud, or breach of trust - but they are not restricted to those offences exclusively. It is well established that such orders are a valid and important part of criminal sentencing proceedings (See: R. v.

Fitzgibbon [7] ). [ 45 ] The issue, therefore, is whether a restitution order is appropriate in this case. Before I can determine this, I must consider the following: (

a) Is the amount of restitution sought readily discernable? (

b) Is the offender’s ability to pay a factor to be considered in determining whether a restitution order is appropriate? (

c) Should a restitution order be a factor in determining the totality of a custodial sentence? (

a) Is the amount of restitution sought readily discernable? [ 46 ] Firstly, it is difficult to quantify the damage or loss in this case. The wage loss reported by Leanne and Whitney Darchuk simply states the hours of work missed times the hourly rate and arrive at a figure for lost wages. There is no provision for deductions such as income tax, CPP, employment insurance, etc.

Also, any loss of income would, presumably, result in reducing the claimant’s tax liability at the end of the tax year, which would then result in lowering the tax payable or increasing the amount of the tax refund as the case might be. [ 47 ] I assume the hours missed from work were due to psychological harm suffered by the claimants, but it is simply an assumption on my part as no information was provided. [ 48 ] Further, it would have been useful to know if the business owned and operated by the deceased carried any business interruption insurance which may have been available to the claimants, or, for that matter, if the claimants themselves carried any disability insurance. [ 49 ] Finally, Julie Darchuk claims the cost of her return flight from Toronto on October 19, 2012.

Does this claim have a causal connection to the offence or is it too remote? Does it fall within the ambit of s. 738(1) (b)? [ 50 ] All these questions would be properly explored via the discovery process in any civil proceeding. (

b) Ability to Pay [ 51 ] While the ability to pay is not a precondition to the making of a restitution order, it is one factor - among others - to consider in determining whether a restitution order is appropriate (See: R. v. Gallagher [8] ). [ 52 ] Here, we know that Mr. Courtney was a seasonal employee for the last few years; he is going to jail; and there is no evidence as to his asset base; but having regard to his age and present circumstances, it is probably modest, although again, it is simply a conjecture on my part as no evidence was led or submissions made on this point. (

c) What effect does a restitution order have on the totality principle? [ 53 ]

Section 718(

c) requires a sentencing judge to consider the totality principle.

[54] Our Court of Appeal in R. v. Montgrand,[9] held that full restitution was a mitigating factor justifying leniency. [55] Other Appellate Courts have held that restitution is punishment and that restitution orders provide a measure of denunciationand deterrence. [56] The British Columbia Court of Appeal in R. v. Bodnarchuk,[10] includes the following passage: As the appellant acknowledges, the trial judge did reduce the length of the sentences she imposed to take into account the restitutionorders.

She noted (at para. 55): "An order for restitution, it must be remembered, is itself punishment and, accordingly, it must serve toreduce what would otherwise be an appropriate term of imprisonment." [57] The Manitoba Court of Appeal, in R. v. Siemens,[11] commented as follows: 8(1) The constitutional justification for a provision in the Code permitting restitution orders is that restitution is a part of the punishment.Where punishment is exacted in the form of a restitution order, there should be a corresponding reduction in other forms of punishmentwhich might be imposed.

In some cases, a restitution order will be a significant factor, while in others it will be trivial, depending on thecircumstances, but it must be included as a factor in the totality of the punishment imposed. ... 8(4) The shorter the sentence, the more likely it will be that a restitution order will be appropriate. Where the amount is manageable,there is every reason to impose an order of restitution when a sentence either does not involve imprisonment or is so short that it does notaffect the offender's employment or the sentence can be served conditionally.

Conversely, as an incarceratory sentence becomes longer,the futility of an order of restitution will become increasingly apparent. [58] It is important to note that the sentence imposed on Mr. Courtney is, I believe, in the range of sentences imposed for similaroffences by other Courts in this province. None of the sentences I made reference to considered or imposed restitution orders. It isarguable, therefore, that if restitution orders were requested and imposed in those cases, the period of incarceration would have beeneffected. [59] For all of the above, I decline to impose a restitution order.

The claimants are not precluded from availing themselves of acivil remedy, and having regard to all the circumstances, that may be a more appropriate action for a claim of this nature. [60] Dated at the City of Prince Albert, in the Province of Saskatchewan this 30th day of January, A.D. 2013. ___________________________________ M. M. Baniak, J [1] R. v. Galloway (2004), 3 M.V.R. (5th) 249; 2004 SKCA 106 , 249 Sask. R. 262 (SK CA). [2] R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, para. 92. [3] R. v. Merrifield, 2007 SKPC 77, 297 Sask. R. 276 (SK PC). [4] R. v.

Decap (2003), 2003 SKQB 450 , 47 M.V.R. (4th) 70, 239 Sask. R. 244 (SK QB). [5] R. v. Keller (1997), (SK CA), 31 M.V.R (3rd) 65, 158 Sask. R. 181 (SK CA).

[6]R. v. Galloway (2004), 2004 SKCA 106 , 3 M.V.R. (5th) 1249, 249 Sask. R. 262 (SK CA). [7] R. v. Fitzgibbon, (SCC), [1990] 1 S.C.R. 1005. [8] R. v. Gallagher, 2008 ONCA 252. [9] R. v. Montgrand, 2008 SKCA 50. [10] R. v. Bodnarchuk, [2008] B.C.N. No. 219, para. 7. [11] R. v. Siemens (1999), (MB CA), 136 C.C.C. (3d) 353, para. 8(1).