R. v. Shuvera, 2022 MBPC 27

CITATION: R. v. Shuvera, 2022 MBPC 27 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Smith ) ) for the Crown - and – ) ) ) Keenan Shuvera ) ) J. Prober for the Accused ) ) ) Judgment delivered: ) May 17, 2022 HARVIE, P.J. INTRODUCTION [ 1 ] The accused has entered a guilty plea to one count of dangerous driving causing bodily harm arising from an incident on April 29, 2018. At issue is the appropriate sentence. Crown counsel seeks a sentence of 10 months to be followed by an 18 month driving prohibition.

Defence counsel seeks a suspended sentence with supervised probation. [ 2 ] This is a sad case and is one which requires a balancing of this incident’s significant impact on the complainant against the difficult and troubled background of the accused. THE FACTS [ 3 ] The facts of the case are not in issue and were put before the Court by way of an agreed statement. [ 4 ] April 29, 2018 was a sunny and bright day, with clear roads and good visibility. At 8:45 a.m. the complainant was driving his Volkswagen Jetta in the curb lane west on Roblin Blvd, having just completed a U-Turn.

At the same time, the accused was also proceeding west on Roblin in a Ford F150 truck, coming up behind the complainant at a high rate of speed. As the complainant changed into the median lane, the accused also moved into the median lane, striking the Jetta from behind causing both vehicles to spin out. The complainant was seriously injured as a result of the accident and was transported to the Health Sciences Center in critical condition, where he remained for an extended period of time.

The accused was also admitted to the hospital but refused treatment and was released. [ 5 ] Winnipeg Police members who dealt with the accused at the scene reported signs of impairment, including glassy eyes, dilated pupils, and dry and cracked lips and mouth. He was slurring his words and speaking nonsensically. Toxicology reports indicate the presence of multiple illegal and prescription drugs in the accused’s blood and plasma.

However, the toxicologist was unable to definitively say that the accused was impaired at the time of the accident. [ 6 ] A Collision Analyst report was prepared but was not filed at the sentencing. It is agreed that at the time of the collision the accused’s vehicle was travelling at a speed of between 121-125 kms per hour in a 60 km zone. THE

SCHEDULE OF PROCEEDINGS [ 7 ] While the accident occurred in April, 2018, charges were not authorized for approximately one year, awaiting the traffic analyst and other reports used as part of the pre-charge assessment of the case. The matter was then the subject of multiple Case Management meetings which resulted in three days being approved for a Preliminary Inquiry. After further discussions, the accused entered a guilty plea, the Preliminary Inquiry dates were cancelled and a Pre-Sentence Report was ordered.

As this accused was out of custody, the COVID-19 court closures impacted the availability of court dates. [ 8 ] All of the foregoing is noteworthy, not for the purpose of attributing blame for the 4 years which has passed since the accident, but to recognize that both the complainant and the accused have waited a significant period of time to have this matter resolved. For his part, the accused has remained on release and out of trouble since the incident. I am satisfied that the delay in the matter is a factor to be considered when assessing the appropriate sentence.

THE RESULTS OF THE ACCIDENT [ 9 ] Crown counsel filed Victim Impact Statements prepared by the complainant and his wife. These statements outline the tragic effect of this incident. The complainant was 68 years old at the time of the accident, healthy and in good shape, golfing and playing hockey regularly. All of that changed on April 29, 2018. The collision resulted in injuries which included his head, neck, and arm. He spent two weeks in the ICU, where he developed pneumonia and required a breathing tube.

He was eventually transferred to the Riverview Health Center for his longer term therapy and recovery, which required, amongst other things, that he wear a neck brace around the clock for three months. He has multiple long term physical injuries which include loss of balance, 60% loss in his left arm function, slurred speech, short term memory loss and difficulty with concentration and swallowing. The ongoing need for blood thinners to treat his injuries has caused ongoing concerns for seizures or a stroke. [ 10 ] The emotional impact of this accident on both the complainant and his wife cannot be understated.

The loss of freedom, including the ability to drive, the curtailing of retirement travel plans and the stress and resulting depression has, in the words of the complainant’s wife “robbed us from enjoying our retirement.” Prior to the incident, she described her husband of 47 years as “a bit of a comic” who “always had a twinkle in his eye. I could actually see it.

He made me laugh (and) he made our friends laugh.” Since the accident she says her husband’s eyes “are dull and blank.” Because of the injuries the complainant cannot be left alone, which has made him moody and has caused friction and turmoil between the complainant and his wife. [ 11 ] During his submission, Crown counsel commented that no sentence can return the complainant to his pre-accident state. This observation is achingly true and leaves the feeling that any sentence is simply inadequate.

I note that the complainant ended his Victim Impact Statement with a prayer that “justice will be served, my family will be safe, and we can move on with my life.” I hope that the conclusion of these protracted proceedings will allow the complainant, his wife and their family the chance to do just that. THE CIRCUMSTANCES OF THE ACCUSED [ 12 ] The Pre-Sentence Report (PSR) provides insight into the background of the accused. Now 22 years old, the accused was 19 years old at the time of the incident and had no previous criminal involvement.

His parents are separated and at the time he lived with his mother in Headingley, where he was headed at the time of the crash. He has since moved out, but requires ongoing financial and emotional support from his mother. He has essentially no relationship with his father and a poor relationship with his two siblings. [ 13 ] The PSR indicates that the accused has suffered with severe depression and anxiety for many years, which adversely affected his high school years and his ability to maintain employment.

His mother describes the accused as someone who has “no friends”, an “extreme introvert” who has struggled with suicidal thoughts over the years. I am advised by defence counsel that following the crash the accused was admitted to the psychiatric unit at Health Sciences Center for a period of time. [ 14 ] Both the accused and his mother confirm an ongoing history of illegal and prescription drug abuse. His mother indicates that the accused has struggled with sleep pattern disturbances and says he has gone 3 to 5 days without sleeping, resulting in manic and extreme behaviour.

More recently, he was on the methadone program for approximately seven months, switching at his doctor’s recommendation to regular injections of Sublocade. He is currently unemployed. [ 15 ] Defence Counsel provided a report dated May 2, 2020 from Dr. Toby Rutner, a registered psychologist who assessed the accused in February and March of 2020. The report confirms many of the accused’s mental health concerns outlined in the PSR and opines that his risk of “any future offending is minimal.” This is somewhat different than the assessment in the PSR which concludes that the accused is a medium risk to reoffend.

However, the PSR indicates that the accused is a suitable candidate for community supervision. [ 16 ] Defence counsel also provided a letter from the Aurora Recovery Centre dated November 4, 2020 confirming that the accused had completed the 60 day inpatient program, during which he completed group sessions and therapy. He then moved into the extended care program, granting him greater freedom, less structure and more responsibility. Unfortunately, he regressed to his previous behaviours and was quickly returned to the main programming.

After a further two weeks he was “discharged due to his attitude, behaviour and overall un-investment in treatment.” [ 17 ] The PSR indicates that the accused has been under the care of Dr. Shelley Turner since December 6, 2020. She confirmed that the accused is suffering from a host of mental health issues, and indicates that he is on 5 different prescription drugs to address his anxiety, depression, insomnia, and his ADHD. Given his mental health instability, she indicates that he is unemployable at this time. Despite this, Dr.

Turner describes the accused as “a pleasant, respectful young man who maintains a positive attitude.” She indicates that the accused still struggles with addiction, and describes the prognosis for his future as “guarded”. [ 18 ] Whether his future prognosis is low, medium or guarded, it is clear that the risk assessment is tied directly to his ongoing need for treatment. The reports confirm, not surprisingly, that his treatment journey has been an uneven one. However, it does seem that he is committed to addressing his issues. I note as well that there has been no re-involvement since this incident occurred.

THE RELEVANT CASE LAW AND CRIMINAL CODE SENTENCING PROVISIONS [ 19 ] Crown counsel candidly acknowledged that given the date this offence was committed, the sentencing is governed by the previous Criminal Code provisions which set the maximum sentence at 10 years, thus allowing the Court to consider the imposition of a Suspended Sentence. The relevant provisions have since been amended, with the maximum sentence increased to 14 years, thus disallowing a Suspended Sentence.

Crown counsel argues that the Court should heed the message sent by Parliament through these amendments and impose a sentence that recognizes the seriousness of offences of this nature. He argues that the principles of denunciation and deterrence, and the need to acknowledge the harm done by the offending behaviour require the Court to impose as

custodial sentence. He emphasizes the aggravating factors which include the voluntary consumption of drugs, which may not haveresulted in intoxication but contributed to the poor decision making by the accused, as well as the excessive speed and manner of driving. [20] In arguing for a Suspended Sentence, defence counsel points to the sympathetic circumstances of the accused, and in particularhis ongoing mental health challenges. Counsel specifically declined to advance an “exceptional circumstances” argument.

Henonetheless suggests that the interplay between the accused’s mental health issues and his drug use, as well as the significant impact thata custodial sentence would have on the accused’s course of treatment, allows the Court to impose either a non-custodial sentence, oralternatively one that the accused could serve on weekends. [21] Crown counsel provided the Court with three cases, all of which dealt with offences of impaired driving causing bodily harm ordeath and some which commented on the impact of legislative changes on sentencing ranges for those offences. In R. v.

Ruizfuentes,2010 MBCA 90, the Court commented on the increase in sentences for impaired driving causing bodily harm and death, due in part toCourts applying legislative amendments. The Court suggested a range of two to five years for the offence of impaired driving causingdeath, recognizing the ability of the sentencing judge to depart from that range where circumstances warrant.

Building on this, in R. v.Smoke, 2014 MBCA 91, the Court referenced the Ruizfuentes range and went on to note that “It is reasonable to assume that the rangefor impaired driving causing bodily harm should undergo a similar increase, putting the range at six to twenty four months.” (at para. 51) [22] While recognizing that the accused did not admit to being impaired at the time of the offence, Crown counsel relies on therange set out in Smoke, and argues that the manner of driving, particularly the excessive speed, demonstrates a higher degree of moralculpability and therefore supports a sentence of ten months. [23] A number of cases have discussed the challenge in crafting a sentence for the offence of dangerous driving causing bodilyharm.

In R. v. Eckert, (J.J) 2006 MBCA 6, the Court noted that the offence of dangerous driving can encompass a wide range of conduct(at para 14-15): Consequently, in sentencing individuals for dangerous driving offences, the facts become crucial. They can vary in a continuum from ashort period of inattention, perhaps a violation of a traffic control signal, through to those that involve significant impairment whileknowingly driving unsafe vehicles and prolonged periods of driving at high rates of speed. In passing sentence, the judge must assess the moral blameworthiness involved in each case.

It is not sufficient to look only at the tragicconsequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentenceshould express society’s denunciation of the conduct involved. Therefore, the nature of the blameworthy conduct that led to theconsequences must be considered. [24] A review of the authorities involving the offence of dangerous driving causing death or bodily harm indicates that a sentencingrange of no jail to significant jail, depending upon the conduct of the accused.

The more serious and flagrant the departure from thestandard of the safe driver, the higher the sentence. [25] In cases involving “inattention and inadvertence” (see R. v. Manty, [2005] M. J. No. 137 (QB)) or unintentional speeding, albeitwith tragic results (see R. v. Muthoka, 2011 MBCA 40, 268 Man.R. (2d) 26)) a non-incarectory sentence was upheld. Short periods ofincarceration have been deemed necessary where the Court considered the conduct of the driver to be more serious, and therefore themoral culpability higher (30 days and community service work in R. v.

Carleton, 2012 MBPC 54, 282 Man.R. (2d) 247; 90 daysintermittent plus community service work in R. v. Shoyoye, 2015 MBQB 72). Longer sentences, including lengthy conditional sentences,have been upheld where the nature and duration of the driving reflect a high level of moral culpability on the part of the driver: See R. v.Pemkowski, (MB CA), 102 Man.R. (2d) 314 (Man. C.A.); R. v. Duchominsky, 2003 MBCA 19, 170 Man.R. (2d)270); R. v. Guimond, 2010 MBQB 1, 249 Man.R. (2d) 75); R. v. Wallace, 2012 MBCA 54, 280 Man.R. (2d) 209; R. v. Eckert (J.J)Supra; R. v. Ali 2015 MBCA 64.

DECISION [26] Offences of this nature represent an ongoing risk in our society. The injuries to the complainant demonstrate the serious impactthat can result when an individual choses to operate a vehicle in a dangerous manner. General and specific deterrence and denunciationare at the forefront of a sentencing of this nature. [27] I agree with the Crown that the nature of the driving in this case reflects a higher degree of moral culpability on the part of theaccused. This is coupled with the voluntary ingestion of various drugs.

Although the evidence does not support a finding of impairment,the accused admitted in the PSR to consuming drugs prior to driving and indicated that “he had no idea he was travelling that fast.” [28] I also agree that there are some mitigating factors. He has struggled for years with depression, a condition which hassignificantly and adversely impacted his life. I must take into account his youth, lack of record, guilty plea and his expressions ofremorse.

Despite the inconsistency in the evidence regarding his level of risk for reoffending, I am mindful that he has remained onrelease for a lengthy period of time and has remained out of trouble since this incident. I am also mindful of the steps he has taken toaddress his personal and mental health issues. [29] Defence counsel expressed concern as to whether the accused would be able to access his prescription medication and histherapy while in custody. I make two observations about this submission. First, as it relates to his medication, the concern at this stage isa hypothetical one.

Secondly, this is not the first time a concern of this nature has been raised in Court. I will simply say that it isincumbent on those in charge of the Correction Institutions to ensure that all inmates have access to appropriate medication. [30] While the accused deserves some credit for the steps he has taken to address his mental health issues, I am not satisfied that the

record as a whole supports the conclusion that the accused should receive a non-custodial sentence.

When assessing the moral culpability of the accused, I am satisfied that the length of the sentence should be tempered by the mitigating factors, which are sympathetic but not exceptional. [ 31 ] Taking into account all of the foregoing, I am satisfied that a custodial sentence of 8 months is warranted. [ 32 ] This will be followed by 2 years of supervised probation on the following conditions: • Keep the peace and be of good behaviour; • Report immediately upon your release to probation services and thereafter as directed to do so by probation services; • Attend, participate and complete any assessments, counselling or programming as directed to do so by probation services. [ 33 ] The accused is prohibited from operating a motor vehicle anywhere in Canada for a period of 18 months. [ 34 ] The accused will provide a sample suitable for DNA analysis while in custody. [ 35 ] The accused is subject to Criminal Code S. 109 weapons prohibition for a period of 10 years. [ 36 ] Costs and surcharge on this matter are waived. “Original signed by” Harvie, P.J.