) ) HER MAJESTY THE QUEEN ) Larry Hodgson ) for the Crown - v. -, 2017 MBPC 16

2017 MBPC 16 THE PROVINCIAL COURT OF MANITOBA PORTAGE LA PRAIRIE CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Larry Hodgson ) for the Crown - and - ) ) DONNIE SMITH ) Ursula Goeres Accused. ) for the Accused ) ) Judgment Delivered: ) April 28, 2017 SLOUGH, P.J. INTRODUCTION [ 1 ] On February 21, 2015 after consuming alcohol Donnie Smith drove and became involved in a collision resulting in the death of Kaitlyn Myran.

He was arrested at the scene and after speaking to counsel on two occasions refused to provide a breath sample to the police. [ 2 ] The failure to provide a breath sample, objective and crucial evidence of his condition at the time of a fatal accident is a serious matter and requires a sentence that denounces his conduct and will deter others. Nevertheless, the evidence establishes that the accused is a valued member of his First Nations community and a good father and husband. Therefore, in sentencing Mr.

Smith, I must strike a balance between the serious nature of the accused’s conduct and the many positive aspects of his character. THE EVIDENCE [ 3 ] This matter was set for preliminary hearing and over three days, I heard evidence with respect to the circumstances leading up to the death of the victim and the aftermath. [ 4 ] The accused provided a statement to the police. That statement was taken approximately five hours after the collision. The officer taking the statement described the accused as being very cooperative, remorseful and credible. He did note that the accused smelt strongly of stale liquor.

In terms of the contents of the statement the accused told the police the following: • That at the time of the accident he was travelling on a dark road, following another vehicle. Suddenly, the lead vehicle swerved and when that vehicle swerved Mr. Smith saw Ms. Myran in the middle of the road. He told the police that he had no time to react and his car struck Ms. Myran.

In his statement he indicated that at the time of the collision he was following closely behind the other vehicle and estimated his speed as being between 60 to 70 km/h. • In terms of the consumption of alcohol and drugs during the evening of February 20th and the early morning of February 21, 2015, he indicated that he had smoked a little bit of marijuana in the early evening and that at approximately 11:00 p.m. went to Portage la Prairie to a social, after that he went to a bar and finally ended up at a house party, in his home community of Long Plains First Nation.

These activities all took approximately five to six hours and during that time he consumed seven drinks mostly beer, but also a rye and coke. (It should be noted that his depiction of his alcohol consumption was corroborated by other witnesses who were with him

throughout the evening). • He stated that when he left the party to go home he did not feel intoxicated and felt that he was capable of driving. • Mr. Smith described Kaitlyn Myran, as a very good friend. OTHER EVIDENCE [ 5 ] The witnesses who had contact with Kaitlyn Myran, all stated that she was intoxicated that evening. The driver of the vehicle that was in front of Mr. Smith’s car, testified that he was very surprised to see Ms. Myran walking down the middle of the road. He testified that he swerved around her but that he had had no time to brake.

He indicated that he was driving at approximately 70 km/h and that Mr. Smith’s car was approximately two car lengths behind his vehicle, although the distance between the two vehicles varied from time to time. Other witnesses estimated the distance between the two vehicles as being three or four car lengths at the time of the accident.

There was also evidence that at one point prior to the accident, one of the passengers in the vehicle driven by the accused told him to slow down and that he did so. [ 6 ] Witnesses who were with the accused, during the evening, indicated that he was not intoxicated, and that he was the designated driver for the evening. [ 7 ] The Crown called a traffic collision analyst.

The analyst was not able to draw particularly definitive conclusions about the circumstances of the collision between the accused’s car and the deceased due to the very cold weather, the nature of the roadway and the fact that certain items of clothing worn by Ms. Myran had been moved prior to the traffic analyst’s arrival at the scene. He did state that it was clear that the victim was not walking on the edge of the road at the time of the collision.

He indicated that the victim was struck in the middle of the vehicle and then hit the windshield and in all likelihood was vaulted over the hood of the car landing on the asphalt. He was unable to determine whether or not the vehicle swerved prior to the collision. The analyst suggested that Mr. Smith may have been following too closely or may have been driving at a speed which did not allow for him to take evasive action or make sound decisions in a timely manner or a combination of both. In addition, the expert testified that all these factors are compounded when a driver is fatigued.

A fatigued driver will react more slowly to an emergent situation. Although the analyst declined to comment on the impact of drinking, common sense tells us that a fatigued driver who has consumed alcohol would not react as quickly as a well rested driver who had not consumed alcohol. That being said, the analyst acknowledged that because the deceased was dressed in dark non- reflective clothing she would have been very difficult to see on a dark road, in the middle of the night. [ 8 ] The traffic analyst concluded: • That Ms.

Myran was hit by the centre of the accused’s vehicle. • He was unable to calculate a pre-collision speed. • The driver failed to identify and avoid Ms. Myran when the lead vehicle took evasive action to avoid her, which could indicate that the accused’s vehicle was following too close or travelling too fast. [ 9 ] It should be noted that there was conflicting evidence about the speed limit at that location.

The traffic analyst testified that he was informed the speed limit was 50 km/h whereas other evidence suggests the posted speed limit was 60 km/h. [ 10 ] The Crown called two police officers to testify as to the accused’s state of sobriety following his arrest. The first officer had extensive experience dealing with people who had been driving under the influence of alcohol. Although he spent a short period of time with the accused, in fact he described his interactions as being very brief, it was the opinion of that officer that the accused was impaired by alcohol.

He based this opinion on the fact that a great deal of what the accused was saying did not make any sense or, at the very least, was unusual in the particular circumstances of the case. He also indicated that during the time he was with the accused he was able to smell beverage alcohol, which in his opinion could only have emanated from the accused. He testified that he would not have permitted an acquaintance or a friend to get into a vehicle that was being operated by the accused. [ 11 ] On cross-examination, the officer acknowledged that there was nothing unusual about the physical movement of the accused.

Nor was the accused slurring his speech. [ 12 ] A second officer, a breath technician who spent a fair bit of time with the accused testified that she could smell a faint odour of beverage alcohol on the accused’s breath and that his speech was slurred. On the basis of these two factors she concluded that the accused was impaired by alcohol.

[13] After receiving legal advice on two occasions, the accused refused to provide a breath sample. [14] At the completion of the preliminary hearing, the Crown having had the opportunity to assess the evidence, reasonably chose tostay all charges relating to dangerous driving and accepted a plea to the charge of refusing to provide a breath sample knowing that hecaused an accident, resulting in death, pursuant to s. 255(3.2) of the Criminal Code.

That plea was entered before another judge, butremitted back to me for sentencing as I had heard the evidence at the preliminary hearing. [15] However, based on my analysis of the facts in this case, I had concerns with respect to the guilty plea entered by the accused. Briefly stated, the issue relates to causation. The accused entered a plea pursuant to s. 255(3.2) Criminal Code, that

section states thatthe accused is guilty, if he refuses to provide a breath sample, knowing that the “operation of a motor vehicle caused an accidentresulting in the death of another person” (emphasis added). My difficulty is that having heard the evidence at the preliminary hearing, Iquestioned whether or not it could be said that the accused caused the accident.

Clearly, a combination of circumstances were significantfactors leading to this tragedy, specifically: the deceased wearing dark clothing, walking down the middle of a dark road, plus the car infront of the accused’s vehicle swerving to avoid her leaving the accused with virtually no time to react to her unexpected presence. Theissue is whether or not aspects of accused’s conduct amounts to legal causation: “a contributing cause that is not trivial or insignificant”as defined in cases such as R v Smithers (SCC), [1978] 1 S.C.R. 506 or R v Nette 2001 SCC 78 , [2001] 3 S.C.R.488. [16]

Section 606 1.1(

i) Criminal Code requires that a judge only accept a guilty plea if the accused is acknowledging that the guiltyplea is an “admission of the essential elements of the offence”.

Both the Manitoba Court of Appeal (see R v Sinclair 2004 MBCA 48 atparagraph 17) and the Supreme Court of Canada (see R v Anthony-Cook 2016 SCC 43 , [2016] S.C.J. 43 paragraphs 49-54) havewritten that a trial judge should show considerable deference to plea arrangements arrived at by counsel for the Crown and the accused.Typically, these plea arrangements involve a recommendation as to sentence as opposed to the situation in this case where the pleaarrangement involves a guilty plea to a particular offence. I note that both counsel for the accused and the Crown are experienced andcompetent.

They reached this plea arrangement after hearing the evidence at the preliminary hearing and have urged me to accept theplea. I have given this a great deal of consideration and I find that the cumulative evidence of fatigue, alcohol consumption, speed andtravelling closely behind the lead vehicle provide a sufficient basis to conclude that the accused’s conduct was a contributing factor inthe death of Ms. Myran. Accordingly, I will sentence the accused on the basis that he refused to provide a breath sample after beinginvolved in an accident where his conduct caused the death of the victim.

I find that, in contrast to the leading decision in this area of thelaw, which I am about to discuss, the accused’s conduct, while a factor in Ms. Myran’s death, was not the primary cause. In my opinion,this gives rise to a lower degree of moral blameworthiness with respect to the causation of the accident. POSITION OF THE PARTIES [17] While counsel for the Crown and Mr. Smith have reached an agreement as to the appropriate

section for the guilty plea, theyare relatively far apart in terms of the recommendation as to the appropriate sentence. Counsel for the Crown, relying on the ManitobaCourt of Appeal decision in R v Ruizfuentes 2010 MBCA 90 at paragraph 22, emphasizes the importance of denunciation and deterrencein suggesting a sentence in the range of two years is appropriate. [18] A recent decision of the Manitoba Court of Appeal, R v Anderson 2017 MBCA 31, reinforces the emphasis that a sentencingjudge must place on general deterrence in dealing with drinking and driving offences.

In Anderson, the Manitoba Court of Appeal foundthat a sentence for driving impaired causing bodily harm consisting of 90 days of intermittent custody followed by three years ofprobation was unfit. As will be seen, I am going to impose a very similar sentence on Mr. Smith who caused the death of an individual asopposed to bodily harm. Nevertheless, I believe that the circumstances of the offence in Anderson involves a much higher degree ofmoral blameworthiness.

In Anderson (at paragraphs 4-7) the facts were as follows: “4 The accused drove his vehicle on the wrong side of the Perimeter Highway towards oncoming traffic, colliding with a vehicle andinjuring the driver and two passengers. The driver of the other vehicle switched lanes in an attempt to avoid a head on collision. Hemoved his vehicle as far to the left as he could, given the presence of the concrete barrier and then came to a complete stop. Theaccused had been travelling at 105 kilometres per hour but braked about a second prior to the collision, slowing to 77 kilometres per houron impact.

The accused’s blood alcohol content (BAC) was at least 185 mg of alcohol, more than double the legal limit. A search of theaccused’s vehicle revealed an open 355 ml can of Budweiser beer and a broken Budweiser king can. He greeted the paramedics withjokes and “high fives”. 5 The accident was quite serious, resulting in injuries to the driver of the other vehicle and his passengers. One passenger wasrendered unconscious. The driver and the same passenger had to be extricated using the Jaws of Life. The other passenger missed oneweek of school and one month of work.

One suffered a skull fracture and a fractured left hand. His brain injury resulted in headaches,physiotherapy and he was off work for a month and missed an entire semester of school. The driver, who was 21 years old at the time ofthe collision, was hospitalized for five days with a shattered knee cap, which required surgery and a leg brace followed byphysiotherapy. He was laid off from his job as a result of not being able to meet the physical demands, and was not sure if he couldbecome an electrician, which is what he was training to become at the time of the accident.

In addition to the physical injuries sufferedby each passenger, each reported mental and emotional harm by reason of the accident. 6 The accused did not appear for his preliminary inquiry and, while a warrant was issued for his arrest at that time, it was later

cancelled. He also missed one of his later court dates and did not attend with respect to the preparation of his pre-sentence report so that it had to be reordered. 7 Besides pleading guilty to one count of driving while over 80 mg and causing bodily harm, he pleaded guilty to one count of failing to appear in court.” [ 19 ] I note as well the Manitoba Court of Appeal acknowledged the importance of the “principles of restorative justice, especially with respect to indigenous offenders.

In appropriate circumstances, restorative justice can take into account all the principles of sentencing in a way that not only heals the individual, but makes his or her community whole again as well.” Anderson (paragraph 17 ). [ 20 ] Counsel for Mr. Smith, argues that Mr. Smith’s otherwise good character, his strong connections to his Indigenous community, warrant either a fine and probation or, at most, an intermittent custodial sentence. ANALYSIS [ 21 ] Section 255(3.2) of the Criminal Code is a relatively new

section of the Criminal Code and neither counsel, nor I, were able to find many sentencing precedents dealing with this section. The leading case is R v Suter 2016 ABCA 235 . The Suter decision dealt with a very different fact situation: Mr. Suter having consumed alcohol became involved in a serious argument with his wife while driving his vehicle. He pulled into a parking lot at a restaurant and when his wife told him that the vehicle was still rolling, instead of applying the brake, he accelerated, sending the vehicle onto the restaurant patio striking a number of people and killing a child.

He was arrested and then refused to provide a breath sample to the police. Clearly, his conduct was the sole cause of a fatal accident. The Alberta Court of Appeal emphasized Mr. Suter’s significant moral blameworthiness in terms of the causation of the accident aggravated by his refusal to provide a breath sample. The Court concluded that the 4 month sentence imposed at the original sentencing hearing was unfit and substituted a 26 month sentence. The rationale for the Alberta Court of Appeal’s ruling is found in the following passage at paragraphs 91-94 and 99-100: “91 Mr.

Suter was not simply a man who chose to continue driving while he argues with his wife. In the context of recent dramatic life events related to his drinking (which had increased after his retirement) and his health, he nonetheless chose to continue to drive while participating in a serious argument, when he could have pulled over.

Had he chosen not to drive or had pulled over once he and his wife began to argue, his “non-impaired driving error”, the error which took Geo’s life, would not have occurred. 92 Driving while distracted is often not regarded as evidencing the same degree of moral blameworthiness as driving while impaired by alcohol, but it can result in grave consequences to members of the public, as illustrated by this case. While not impaired by alcohol, Mr.

Suter’s ability to drive was impaired by the distraction offered by his argument with his wife, in the context of the health and drinking problems he had so recently been experiencing. His degree of personal responsibility for the collision was thus high. 93 The essence of the offence to which he pled guilty is not simply his failure to provide a breath sample. It is failure to do so after having knowingly caused a collision leading to death. Causing the collision which caused death is a required element of the offence; the offence does not occur unless it had that result.

All aspects of personal responsibility cannot therefore properly be limited to the refusal to provide a breath sample portion of the offence while ignoring the other elements of its commission. 94 In particular, the fact that the accused caused the accident and that the accident resulted in a death are directly relevant to moral culpability. Section 255(3.2) is not to be interpreted in such a way that no moral aspect attaches to the facts of the accident and resulting death, or to mean that the accident and death are relevant only to the extent that they occurred.

The purpose of the creation of this offence, as evidence by the extracts from the Parliamentary debates cited earlier, was not simply to punish an obstruction of justice by means of refusing to create evidence. The purpose is to deter impaired driving, in this incidence, indirectly by removing the incentive created by the fact that a refusal to provide a breath sample carried a significantly lower maximum penalty than the offence of impaired driving causing death…. 99 In

summary, the moral culpability of refusing to provide a breath sample on demand after having caused a collision leading to death in circumstances where the driver’s ability to drive is impaired by something other than alcohol may approach the moral culpability of having chosen to drive in those circumstances while his or her ability to drive is impaired by alcohol. 100 We conclude that the sentencing judge’s failure, as a part of establishing a proportional sentence, to assess Mr.

Suter’s moral culpability in terms of his choice to drive while distracted in the context of his health and pre-existing alcohol problems, a choice which caused a child’s death, not intentionally, but carelessly and even recklessly, was an error in principle as well as a failure to consider relevant factors, errors which combined to result in an unfit sentence.” [ 22 ] While I have found significant differences between Mr. Smith’s moral blameworthiness and that of Mr. Suter with respect to causation, nevertheless, I am of the view that Mr.

Smith’s refusal to provide a breath sample, knowing he had been the driver in an

accident resulting in death, is a significant aggravating factor in determining sentence. Simply stated, Mr. Smith chose to obstruct the investigation of the death of Kaitlyn Myran by withholding crucial evidence. Nevertheless, there are many other relevant factors that mitigate against a lengthy period of incarceration. PRE-SENTENCE REPORT [ 23 ] The Court had the benefit of a comprehensive pre-sentence report providing valuable information about the accused’s background, current circumstances and relevant factors relating to his Indigenous heritage.

At page two of the report, the author stated the following: “in regard to the subject’s attitude towards the current matter before the court, he accepted full responsibility for his actions and expressed immense remorse toward the victim and her family. The subject emphasized he has been significantly impacted by the current matter and disclosed that he has felt alone, angry at himself, and separated himself from all of his friends. He stated: “I feel sad, I talk to the victim’s sister a lot, she knows how I feel and tells me it is okay and not to beat myself up...

It’s always on my mind”. [ 24 ] The report indicates that the accused has a very limited prior record all of which arose as a young person. [ 25 ] The accused has lived in Long Plains First Nation for most of his life and has strong ties to that community. He has been maintained employment in the Long Plains community working as either a carpenter or by helping out on a farm. [ 26 ] In terms of drug and alcohol use, the accused advised the author of the report that since Ms. Myran’s death he has attended for alcohol counseling and has remained sober and has not used either alcohol or illegal drugs.

The accused also sought mental health counseling and according to the report received immense support from his counselors both in terms of substance abuse issues and mental health issues. [ 27 ] The report indicates that the accused has strong ties to his Indigenous heritage, including attending sweats and feasts and being involved in the community hunt to provide food for members of his community. Mr.

Smith’s grandparents all attended residential schools and according to his mother were affected by that experience, which has done profound damage to the community. [ 28 ] The accused has been in a stable relationship with his partner for seven years and is responsible for the support of three children. The accused has strong family supports within the community. [ 29 ] The probation officer assessed the accused as being at low risk to reoffend. Specifically, the probation officer indicated that the accused was very committed to seeking continued support in terms of alcohol abuse and any mental health issues.

In conclusion, the probation officer indicated that the accused was a suitable candidate for community supervision. [ 30 ] The probation officer’s conclusions were supported by social workers who spoke at the sentencing. These witnesses indicated that the accused is held in high regard by the Long Plains community. Further, they advised that the accused’s parents depend on him for support as his mother is very ill and his father is on dialysis. They describe the accused as being filled with remorse: “living in his own little prison”.

Finally, they advised the Court that the victim’s family holds no animosity towards the accused and are looking for closure through the sentencing process. I accept their evidence as being representative of the views of the Long Plains community with respect to this matter. DECISION [ 31 ] In reaching my decision, I have considered all the relevant factors listed in s. 718 of the Criminal Code .

Specifically, I believe that the circumstances of this offence involving the accused withholding crucial evidence with respect to the impact of his consumption of alcohol on his physical condition warrants a response that involves an emphasis on deterrence and denunciation. No person who finds himself in circumstances similar to those confronting the accused on February 21, 2015 should feel that they can avoid the appropriate consequences for their behaviour, by refusing to provide a breath sample.

In the circumstances of this case, I believe that the only way to give appropriate effect to the principles of denunciation and deterrence is through a custodial sentence. [ 32 ] That being said, the accused has a very limited prior record. He is a good father and husband and is a contributing member of the Long Plains community. He displays a great deal of remorse. It is noteworthy that Mr. Smith entered a guilty plea to a charge where it can fairly be said that conviction was not inevitable. This is a clear indication of remorse and a willingness to accept responsibility.

The guilty plea will bring closure to the victim’s family and the Long Plains Community.

[ 33 ] Mr. Smith has on his own initiative taken many steps, by way of treatment and counseling towards rehabilitation. I am told the deceased’s family does not hold any hard feelings or anger about what occurred. In many ways, the important goals of forgiveness, reconciliation and rehabilitation have already been achieved within the Long Plains community and it is important that both the community and the accused move on from this tragedy.

In structuring the sentence I am attempting to ensure that the sentence does cause unnecessary harm to this offender’s family for whom he is the main provider and support. [ 34 ] Balancing all these factors, I believe, a period of incarceration must be imposed but that period of incarceration should be at the low-end of the appropriate range. In my view, a sentence of 120 days is appropriate. I note the accused spent 20 days in custody immediately after his arrest on February 21, 2015. Using a multiplier of 1.5 that is the equivalent of 30 days already served.

Accordingly, I am sentencing him to 90 days of imprisonment, going forward. In her submissions, counsel for the accused, suggested that if the Court was not willing to impose a fine and probation that consideration be given to a custodial sentence involving intermittent time. I am prepared to order that the accused serve the remaining 90 days of the sentence on an intermittent basis.

I do so, because, I believe this will allow him to continue to work and support his family. [ 35 ] Accordingly, I am ordering the accused to report to the Remand Centre in Winnipeg, or any other Correctional facility designated by Corrections not later than 7:00 p.m. on Friday, May 5, 2017. He is to remain in custody until Sunday, May 7, 2017 until 6:00 p.m. or whatever time correctional authorities deem appropriate for his release. He is to continue to report every Friday until he has completed his custodial sentence.

From today’s date, I am placing the accused on supervised probation for 18 months. [ 36 ] The circumstances of this offence involve the accused using illegal drugs (marijuana) and consuming alcohol throughout the evening and well into the early hours of the morning. Given these circumstances, I believe it is appropriate to impose a curfew that will ensure that he remains at home and does not embark on the sort of partying that occurred on February 20 and 21, 2015. See R v Singh 2016 MBCA 38 at paragraphs 3 , 15 and 27. [ 37 ] The conditions will be: 1. He keep the peace and be of good behaviour. 2.

He is to report to probation within five working days and thereafter as directed. 3. He is to attend, participate and complete counselling as directed by Probation Services. 4. He is to abstain from the consumption of alcohol, illegal drugs and any prescription drugs for which he does not have a prescription. 5. For the first nine months of this probation order he is to be at his residence from 10:00 p.m. to 7:00 a.m. seven days a week. Exceptions would involve medical emergencies involving himself or a member of his immediate family. At the request of counsel for Mr.

Smith, I will order that should weather conditions prevent him from being at his residence while serving the intermittent sentence, he may also be at his brother’s residence the day before or the day after the intermittent sentence. Any other exceptions would only be with the advanced written approval of his probation officer. 6. He is to answer the door of his residence or the telephone if the police or probation perform a curfew check. 7.

He is to inform probation of any change of address prior to moving from his residence. [ 38 ] The accused will be prohibited from driving for a period of one year. [ 39 ] There is a mandatory firearms prohibition with respect to this offence. Therefore, in accordance with s. 109 of the Criminal Code the accused will be prohibited from possessing weapons as described in s. 109(1) for a period of ten years. However, subsistence hunting is a part of Mr. Smith’s lifestyle and culture and he hunts to support the elders in his Indigenous community.

Therefore, having considered the factors set out in section 113(2) Criminal Code , I am ordering that pursuant to s. 113(1) Criminal Code that Mr. Smith be permitted to subsistence hunt to provide food for his family and to provide food for elders in his community.

[ 40 ] I am ordering that Mr. Smith provide a DNA sample within 60 days. [ 41 ] I am imposing costs and surcharge of $202 and giving Mr. Smith until October 20, 2017 to either pay or work off these fees. [ 42 ] Finally, Mr. Smith, having read the pre-sentence report and having listened to the comments of the members of your community, I believe it is very important that you forgive yourself. It is clear to me that your community has forgiven you, Kaitlyn Myran’s family has forgiven you and now you must move on from this tragedy. ________________________________ Slough, P.J.