Her Majesty the Queen - v. -, 2016 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 056 Date: April 25, 2016 Information: 90118495 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Joseph Melin Appearing: Curtis Wiebe For the Crown Self Represented For the Accused SENTENCING DECISION K. BAZIN , J [ 1 ] Mr. Melin has pled guilty to driving while his blood alcohol concentration exceeded .08 pursuant to s. 253(1) (

b) of the Criminal Code . Mr. Melin was involved in an accident while driving a large transport truck, referred to as a Super B, which consists of two trailers, one being 32 feet long and the second one being 28 feet long. Mr. Melin, a professional driver, stated that a regular semi- trailer is 53 feet in length. The truck was fully loaded hauling drywall. [ 2 ] The accident happened prior to 6:15 p.m., on the Trans-Canada #1 Highway outside of Gull Lake, Saskatchewan. The truck left the highway and rolled on its side in the median which separates the two double lanes of the #1 Highway.

[3] Mr. Melin’s readings were both 110 milligrams of alcohol in 100 millilitres of blood. He stated that the main cause of theaccident was that he was reaching back to deal with his lunch box heater, as it had fallen over. When he realized that he had crossed theline he then over-corrected, trying to get the truck back in its lane. The trailers started to swing, he lost control, and ended up in themedian. [4] The size of the vehicle is an aggravating factor.

The large size of the transport trailer, when driven by someone withreadings over .08, puts other users of the road, including motor vehicles, bicycles, and pedestrians, in greater danger because of the sheermass of the transport truck. [5] In R v Tschetter, 2009 ABPC 291 the court, in sentencing the accused for five counts of criminal negligencemanslaughter, considered the size of the vehicle (a cement truck) to be an aggravating factor.

The concern about the potential for largervehicles to cause much more damage is set out in the second point in paragraph 18, as follows; The accused was driving in a cement truck, not an ordinary motor vehicle. This truck weighed approximately ten times the weight ofthe victim’s vehicle or most other vehicles on the road. The standard of care expected in driving any such vehicle is much higher thandriving an ordinary vehicle because it can cause so much more damage and all other users of the highway are at its mercy if reckless andnegligent driving is involved.

The increase in damage if his driving of this vehicle causes a collision can be astronomical compared todriving a normal vehicle as shown by the horrific and tragic results that occurred here. [6] The size of the vehicle as an aggravating factor was also taken into consideration in R v Moorhouse ,2007 ABPC 7The case also involved a transport truck but in a more serious offence of impaired driving causing bodily harm. The court considered itto be an aggravating factor that the vehicle being driven was a tandem axle transport truck weighing approximately 10,000 kg.

InMoorhouse it involved just the tractor unit, minus the trailer. One can infer from Moorhouse that the mass of Mr. Melin’s tractor unitand 2 loaded trailers would greatly exceed 10,000 kg. [7] The size of the vehicle was also considered an aggravating factor in R v Burger, 2015 ABPC 224 This involved adriver of a semi unit sentenced for impaired driving causing death. [8] R v Jehnn, 2006 BCPC 482 is a case of dangerous driving causing bodily harm.

The court considered the size andweight of the vehicle as an aggravating factor which was described as an “SUV”. [9] I find the following to be aggravating factors to be considered in this sentencing decision: - the size of the vehicle Mr. Melin was driving, being a large transport truck, referred to as a Super B, consisting of the tractor unitpulling two loaded trailers, the trailers alone being 32 feet and 28 feet in length, respectively - Mr. Melin is a professional driver, and the offence took place during the course of his employment.

He drank alcohol to the pointof being over .08 during his employment, and when he knew that he would be driving the large transport truck on a busy highway. - the vehicle was driven on the #1 Highway, at a time of day that one would expect other users to be on the roadway. The #1Trans-Canada Highway is a double laned highway which is an indicator of the volume of traffic expected on it. - there was an accident - the risk of potential harm to himself and others when he had consumed alcohol prior to driving should have been contemplated orknown by Mr. Melin

- property damage resulted from the accident [ 10 ] The following are the mitigating factors I find in this case: - Mr. Melin pled guilty at his first opportunity - he has no prior record - he will lose his employment as a professional truck driver - he has been employed continuously for many years and he supports his wife and young child.

As well as he indicated he provides support to his 20 year old son - he will in all likelihood have a substantial civil debt in relationship to the damage to the truck [ 11 ] Taking into consideration the principles of sentencing and particularly in light of the fact that this is Mr. Melin’s first offence, a sentence including conditions intended to assist with his rehabilitation, in addition to the mandatory penalty of a fine and a driving prohibition, will be of benefit to Mr.

Melin as well as society, to prevent further drinking and driving offences. [ 12 ] Whereas generally courts have ordered a fine of $1,000.00 for a first offence with no aggravating factors, a higher fine as well as a period of probation is necessary to reflect the aggravating factors as outlined above. [ 13 ] In conclusion, the sentence is as follows: (1) a fine of $3000.00 plus the victim surcharge of $900.00 (2) a one year driving prohibition (3) a nine month probation order on the following terms: (

a) keep the peace and be of good behaviour. (

b) appear before the court when required to do so by the court. (

c) notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. (

d) report to a probation officer at 350 Cheadle Street West, Swift Current, Saskatchewan, ph. (306) 778-8244 immediately and after that as told to do so by your probation officer or designate. (

e) live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the court. (

f) not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. (

g) participate in assessments and complete programming for addictions, as told to do so by your probation officer.

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h) come to the door of your residence when asked to do so by a police officer, a probation officer or designate and permit them entry into your home to monitor the conditions of the order. _______________________ K. Bazin, J