Her Majesty the Queen ) Mr. T. Rambow, for the Crown ) - v. -, 2012 MBPC 52

2012 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Mr. T. Rambow, for the Crown ) - and - ) ) KELVIN KNIGHT ) Mr. J. Skinner, for the Accused ) ) Judgment delivered: June 19, 2012 LAWRENCE ALLEN, P.J. [ 1 ] Kelvin Knight has entered guilty pleas to Impaired Driving Causing Death (C.C. 255[3]) and Impaired driving Causing Bodily Harm (C.C. 255 [2]). These charges result from a single vehicle highway accident on June 9, 2011. Mr. Knight was driving a motor vehicle that left PTH 384 approximately two kilometers north of Moose Lake, Manitoba. [ 2 ] At Mr.

Knight’s sentencing hearing in The Pas, Manitoba, on April 19, 2012, the Crown suggested that a jail sentence in the range of five years was an appropriate disposition. Defence counsel asked the court to sentence Mr. Knight in the range of one to two years. [ 3 ] This is my decision on the sentencing of this matter. THE FACTS: [ 4 ] On the day in question, Kelvin Knight was drinking in Moose Lake with his sister, Thelma Ballantyne (aka Melissa) and his friend, Ron Lambert. The group decided they needed more alcohol and that they would drive to the nearest liquor store approximately 65 kilometers away.

The route was almost entirely a gravel road. They proceeded to do so. Thelma Ballantyne, who later provided a statement to the RCMP, was in the back seat of the vehicle. She told police that she did not want her brother to drive because he had been drinking and he did not have a driver’s licence. [ 5 ] The trio made the trip to the liquor store, purchased liquor and headed back to Moose Lake. The vehicle, driven throughout by Kelvin Knight appears to have been travelling at an excessive rate of speed.

Thelma Ballantyne told RCMP that: “I kept telling him to slow down, but he wouldn’t listen” (page 3 of the Prosecutor’s Information Sheet). Ms. Ballanatyne also told police that her brother was six on an intoxication scale of ten, with one being sober. [ 6 ] At a place just north of Moose Lake the vehicle left the road, rolled several times and came to a stop on its side almost at the tree line at the side of the gravel highway. [ 7 ] Kelvin Knight and his sister were later found by police on the highway walking towards Moose Lake.

The attending RCMP officer noted that Kelvin Knight had cuts on his face, his eyes were bloodshot and glassy, he was slurring his speech, he needed assistance walking and his breath had a strong odour of liquor. [ 8 ] The officer’s report, filed as an exhibit at the sentencing, says that both Kelvin Knight and his sister were certain that they were the only occupants of the vehicle. Mr.

Knight also told police that his sister had been driving. [ 9 ] After arriving at the nursing station, Thelma Ballantyne took the officer aside and told him that Ron Lambert was also a passenger in the vehicle and that her brother had been driving. Police returned to the accident scene and found Ron Lambert in the bush, approximately forty feet from the vehicle. Mr.

Lambert was conscious when located, but had suffered considerable loss of blood and later succumbed to his injuries. [ 10 ] The passenger, Thelma Ballantyne, was treated at the nursing station for a swollen nose and large wounds to her right upper forehead and right cheek area and a large wound to her right hand. [ 11 ] As Kelvin Knight was considered by the RCMP to be both drunk and injured, no breath demand was made.

A blood sample was taken, which resulted in a reading of .299 milligrams of alcohol in one hundred millilitres of blood. [ 12 ] At the sentencing hearing, a traffic analyst’s investigation report was filed. This report, relying on data from the air bag module and the measured distance that the vehicle rolled, determined that the minimum speed prior to the accident was 106 kph.

Information from the air bag control module indicated that six seconds before the air bags were deployed, the vehicle was travelling 136 kph, and that the brakes had not been applied within six seconds before the air bags deployed. [ 13 ] The Crown suggested in speaking to sentence that Mr. Knight’s speed at the time he lost control of the car was somewhere between 106 and 136 kph. At the lower of these speeds, the vehicle was travelling 26 kph over the posted 80 kph speed limit on that

highway. [ 14 ] Mr. Knight comes before the court with a criminal conviction for Assault in 2002. Also in 2002, he was convicted of Impaired Driving and two counts of Failing to Comply with a Probation Order. In 2008, he was sent to jail for 21 days for a conviction for driving with more than the legal allowable limit of alcohol in his blood. [ 15 ] The vehicle in question was taken into The Pas for a mechanical inspection and its suspension, brakes and steering were all found to be in working order.

ANALYSIS: [ 16 ] There are a number of aggravating features to this incident: • Excessive speed well beyond the speed limit; • The excessive amount of alcohol in Mr. Knight’s system; • That Mr. Knight originally tried to avoid responsibility by claiming that his sister was the driver; • That Thelma Ballantyne repeatedly asked her brother to slow down and he ignored her; • Kelvin Knight has two previous convictions for drinking and driving; • Mr. Knight placed his sister and Mr. Lambert, not to mention anyone else on the road that day, in serious jeopardy of significant harm; • Mr.

Knight was not a licensed driver. [ 17 ] In terms of mitigating factors, the Crown spoke with Angela Lambert, the wife of the deceased, who felt that Kelvin Knight has suffered significantly from this event and she did not “necessarily want him to go to jail”. Also, Mr. Knight filed several letters of support from individuals who are currently working with him at “Teen Challenge”, a residential treatment facility where Kelvin Knight has lived since his release on bail in November, 2011.

These letters spoke of an individual committed to rehabilitation. [ 18 ] There are references in the Pre-Sentencing Report prepared for the sentencing which indicate that Mr. Knight, an aboriginal person and member of the Mosakahiken Cree Nation, was exposed to considerable drinking and domestic violence in his home as a child. Various family members reported that Kelvin Knight’s abuse of alcohol eventually resulted in the loss of his 17-year marriage. Apparently Mr. Knight has twice sought treatment for alcohol abuse. Also significant is Mr.

Knight’s entrance into the Teen Challenge Program [ 19 ] Allen Lagore, the local director of Teen Challenge, testified that Mr. Knight had been released to his program on a bail plan put forward on November 21, 2011. At that point, Mr. Knight had been in custody for four months. Mr. Lagore described the program as being a faith oriented, one year residential plan which through application of principles of Christian faith, tries to assist “men to overcome their addictions and walk them to a road of freedom and success” (from the support letter filed by Allen Lagore). [ 20 ] Mr.

Lagore told the sentencing court that Mr. Knight has put incredible effort into the Teen Challenge Program. He said that he has shared with him the remorse he feels about the death of his friend, Ron Lambert. Mr. Lagore says that Mr. Knight has not only been completing the required material, but that he has been applying it to his life. [ 21 ] Mr. Knight also spoke on his own behalf and told the court that he is sorry for what has happened. He also told court that he feels the Teen Challenge program has “helped me”.

SENTENCING PRINCIPLES: [ 22 ] All sentencings in the criminal courts of Canada are governed by the principles set out at

section 718 of the Criminal Code of Canada . While all of these principles are applicable, it is clear from case law in this area that the principles of denunciation and deterrence are of paramount importance in impaired driving causing death charges. This is particularly the case where the offender has twice before been sentenced for drinking and driving. Canadian courts have frequently emphasized the objective of denunciation and deterrence in sentencing impaired driving causing death. An example is found in R. v. Rhyason (B.P.) [2007 ABCA 119]: “[Denunciation] This is important for this crime.

Denunciation is especially needed to combat two still common views: that a death like this is a mere accident and that the victim was much to blame. ...Drinking and driving must be seen as a true crime.” [ 23 ] In R. v. Ramage [ONCA, 2010], 2010 Carswell 4956, Doherty, J.A. at paragraph 74 said: “In imposing sentence the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court’s judgment in R. V. McVeigh [1985] 22 C.CC [3d) 145 (Ont. C.A.).

In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts.

In the memorable words of MacKinnon A.C.J.O. at p. 150, ‘every drinking driver is a potential killer.’ ...The result in McVeigh demonstrates the court’s commitment to general deterrence in all cases of drinking and driving, especially those in which death occurs...” (para 75). [ 24 ] Later in the Ramage judgment, Justice Doherty says: “The danger created by the appellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct.

Significant incarceration is the remedy that most emphatically achieves those goals.” (para 76).

[25] In R. v. Ruizfuentes, Justice Chartier writing for the Manitoba Court of Appeal [2010 MB.C.A. 90], conducted a review of allreported sentencing decisions for impaired driving causing death. In that decision, he says: “For those with prior convictions for drinking and driving or serious personal injury offences, the sentences tend to be around the five tosix-year range (p. 7, para 18).” [26] He also states that more recent cases clearly show a trend toward higher sentences (para 20) and goes on to quote JusticeO’Connor, ACJO from R. v.

Junkert (M) [2010] ON.C.A. 549 which upheld a five year sentence for a first offender who said: “In my view, a sentence of five years for this offence cannot be said to be ‘a substantial and marked departure’ from the sentencesordinarily imposed on similar offenders for similar offences’. In recent years there has been an upward trend in the length of sentencesimposed for drinking and driving offences. The reasons for this trend can be attributed to society’s abhorrence for the often tragiccircumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are consideringdriving while their ability is impaired.” (para 46 and 47). [27] In R. v. Niganobe [2010] ON.C.A. 508, a female aboriginal offender with one previous impaired driving conviction fromseven years earlier, was given a five year sentence for the same charges facing Mr. Knight. As in the case at bar, the offender inNiganobe drove after having consumed excessive amounts of alcohol.

The offender, having entered an intersection against a red light,caused the death of one person and serious injury to another. [28] In R. v. Junkert, previously quoted above, Justice O’Connor of the Ontario Court of Appeal, upheld a five year sentence for afirst offender convicted of dangerous driving causing death and impaired driving causing death. [29] At paragraph 42, he said: “I am not satisfied that the five year sentence imposed by the trial judge in this case is ‘clearly unreasonable’.

The trial judge recognizedcorrectly in my view, that the overriding sentencing principles in drinking and driving offences, particularly where death is involved, aredenunciation and general deterrence”. [30] In two cases from the Ontario Court of Appeal, R. v. Wood (ON CA), [2005] 196 C.CC (3d) 155 and R v.Kummer [2011] Carswell Ont 282, the issue of warnings from passengers were cited as aggravating features. [31] In R. v. Kummer, the offender, driving at excessive speed with a blood alcohol concentration of more than twice the legal limit,caused an accident which resulted in three deaths.

He was sentenced to eight year concurrent sentences for each of the dangerous andimpaired driving causing death charges he faced. The Court of Appeal in confirming the sentence, said: “The appellant received one final warning, just minutes before the fatal crash. His friend and passenger...warned him to slow down. Again, tragically this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could beignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so.

Hisdecision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence”. (para 26). [32] In R. v. Wood, the offender had a serious violence-oriented criminal record, but no previous alcohol driving charges. He wassentenced to nine years in prison and it was considered an aggravating feature that he ignored the advice of a friend not to drive. [33] In R. v. Bear [2008] SK.C.A. 172, from the Saskatchewan Court of Appeal, Mr. Bear was convicted of the same two offencesas in the case at bar. Mr.

Bear was impaired, driving at excess speed and failed to stop at an intersection. He had three previous alcoholrelated driving offences, the last of which was entered ten years before sentencing. Mr. Bear’s six year sentence was upheld by theAppeal Court. [34] In R. v. MacDonald (MB CA), [1999] M. J. No. 415, Justice Twaddle of the Manitoba Court of Appeal saidat paragraph 7: “In crafting a sentence for a particular offender the sentencing judge must have regard to

a) The specific crime committed;

b) The circumstances in which it was committed;

c) The circumstances of the offender. The sentencing judge must then compare the case with others involving a similar crime committed in broadly similar circumstances byoffenders whose circumstances are broadly similar. The sentence imposed should ordinarily be within the range of sentence imposed inthose other cases.

Exceptionally, where the circumstances of the offence or those of the offender (or both) do not fit the norm, asentence above or below the usual range may be justified”. (para 7). [35] In the case before the court, the specific crime committed has resulted in injury to the offender’s sister and death to his friend. The specific crime is Kelvin Knight’s driving while his ability to do so was impaired by alcohol. The consequences were devastating. [36] The circumstances of the crime include the high rate of speed on a gravel road. Mr. Knight was travelling at least 26 kph overthe legal speed limit on the road.

He had been asked by his sister, who was also a passenger, to slow down; he did not. His bloodalcohol was found to be more than three and one half times the legal allowable limit of alcohol in the blood. [37] As to the circumstances of Mr. Knight, he had twice before been convicted of drinking and driving. On the second occasion,

he had experienced the rehabilitative lash of a 21-day jail sentence. [38] Mr. Knight comes from a Manitoba First Nation. He is 47 years of age and of aboriginal descent. The sentencing reportprepared by Probation Services speaks of the impact of “the colonization process” on Mr. Knight’s home community. The report cites“loss of language, beliefs and tradition”. The report stresses that Mosakahiken Cree Nation “has been affected by trans-generationalissues such as substance abuse, domestic violence and increased risk of suicide and death” (PSR page 3). [39] Mr.

Knight was raised amidst periodic alcohol abuse and domestic violence. His upbringing and the circumstances of his homelife must be considered in light of the Criminal Code Section, Sec 718.2(

e) and the Supreme Court cases R. v. Gladue (SCC), [1999] 1 SCR 688 and R. v. Ipeelee [2012] SCC 13. That

section and those cases require that the background circumstances ofaboriginal offenders be particularly considered on sentencing. As required by the Supreme Court’s statements in these cases, I havetaken notice of the economic, cultural and social upheaval that has taken place in Mr. Knight’s community in post colonial times. Helives in a community with limited employment opportunities and rampant social ills. Mr. Knight finds himself employed on only alimited seasonal basis. The lack of opportunity in his community has undoubtedly played a role in what appears to be a longstandingaddiction to alcohol.

Additionally, the entrenched social and cultural difficulties in Mosakahiken are reflected in both his upbringing andhis current situation. I am satisfied that these factors must serve to some extent mitigate Mr. Knight’s moral blameworthiness in thematters before the court. [40] I am also satisfied that Mr. Knight’s home community may not necessarily share the same views of sentencing as othercommunities from which relevant case precedents are drawn. Perhaps the view of Ron Lambert’s widow, who does not necessarilywish to see Mr. Knight jailed, is more reflective of the opinions of the Mosakahiken band members.

This is a consideration that must betaken into account in determining an appropriate sentence. [41] Additionally, all indications are that Mr. Knight has been an exemplary participant in the residential treatment program, TeenChallenge, where he has resided since November, 2011. [42] As indicated previously, Justice Chartier of Manitoba’s Court of Appeal conducted a thorough review of case law in this areain the R. v. Ruizfuentes case.

At paragraph 22 of that decision, he said: “As a result of the recent amendments (to the Criminal Code) and the review of the case law, I conclude that the regular range ofsentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking anddriving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequentoffenders, it moves upwards to a range of four to eight years.

As for driving prohibitions, the cases show that for first offenders therange is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban”. [43] In my view in coming to a conclusion as to an appropriate sentence in this matter, I must give weight to Mr. Knight’supbringing and the difficulties suffered by him and his community which may have factored into the addiction to alcohol which leadshim to these crimes. I also have to consider his apparent success in a residential treatment program in which he has been resident for thelast number of months.

I must also consider the wishes of the widow of the deceased Mr. Lambert and Mr. Knight’s remorse. Thisremorse has been stated to the Probation Officer who prepared his sentencing report, to the officials he deals with at Teen Challenge andin court. All of these mitigating factors must be considered. [44] In terms of the aggravating factors in this case, I have considered that Mr. Knight’s blood alcohol reading was .299 and that hewas driving at a dangerously excessive speed on a gravel road. At the time of the offence he was not a licensed driver and had twoprevious drinking and driving convictions.

He had been warned by his sister that he was driving too fast and he had been asked to slowdown. He had ignored these warnings. [45] In my view, the gravity of these aggravating factors outweigh those that mitigate. [46] Mr. Knight’s crime was not spontaneous. It was conducted over a relatively long drive (approximately 65 kilometers) to theliquor store and almost all the way back. He was admonished to slow down. Mr. Knight had a lengthy period to recognize that what hewas doing was dangerous. This was not a momentary lapse of judgment.

As a result, I am of the view that the appropriate sentence inthis case does not fit at the lower end of the range. [47] As a last step in sentencing Mr. Knight, I must examine the sentencing principle of proportionality. The sentence imposed mustbe proportionate to the gravity of the offence and the degree of responsibility of the offender. [48] Lebel, J. In the Supreme Court case of R. v.

Nasogaluak [2010] SCC 6, defined “proportionality” at paragraph 42: “For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence ... ... whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence isalways limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it”. [49] Once again, Justice Chartier from R. v.

Ruizfuentes as to assessing moral culpability, says: “to assess the extent of moral culpability in a particular case, due regard must be given to ‘the intentional risk taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct’”. (para 38). [50] By driving intoxicated, at excessive speed and heedless of warnings, it is clear that there is substantial risk taking in this case. In terms of the “normative character” of Kelvin Knight, he did not have a driver’s license and his criminal record includes two previousconvictions for drinking and driving.

[ 51 ] In terms of moral blameworthiness, I am satisfied that this offender’s actions are significantly blameworthy, taking into particular consideration the excessive speed, extreme level of intoxication and fatal consequences of these actions. I believe that an appropriate sentence in this situation could well fall at the higher end of the generally accepted range of sentencing. But this sentencing, as with all sentencings, must reflect the individual circumstances of this offender and the circumstances of these offences.

In assessing the moral blameworthiness in this case, I do believe that it must be reduced in light of the “ Gladue factors” earlier discussed. Mr. Knight is a product of an unfortunate environment. His significant alcohol problem has developed in an environment which produced this problem in his parents, in many others in this community and clearly in himself. [ 52 ] In my view, a global sentence of five and one-half years of incarceration is appropriate in all of these circumstances. Mr.

Knight will be sentenced to five and one-half years of incarceration as to the impaired driving causing death charge and a concurrent two- year term of incarceration will be applied to the impaired driving causing bodily harm conviction. [ 53 ] I believe this sentence considers proportionality and is not excessive in proportion to the circumstances of this offender and this offence. [ 54 ] Mr. Knight will be credited with the four months that he spent in custody, on an equal basis.

In light of the seriousness of this matter, and the fact that it is his third related conviction, he will be prohibited from driving motorized vehicles anywhere in Canada for 15 years. [ 55 ] The crown seeks a DNA Order and I am satisfied that under the circumstances of the seriousness of this matter and Mr. Knight’s previous record, that it is in the best interests of the administration of justice to make the requested order for the taking of a sample of bodily substances for the purposes of DNA analysis. “Original signed by:” ____________________________ Judge Lawrence Allen