Her Majesty the Queen - v. -, 2013 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 040 Date: March 7, 2013 Information: 43212149 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Daly Appearing: Mr. D. Kim Jones For the Crown Mr. Jeffrey Reimer For the Accused JUDGMENT J.D. KALMAKOFF , J [ 1 ] Kevin Daly pled guilty to one count of impaired driving causing bodily harm. The offence occurred in Regina on May 24, 2012. This is my decision on sentence. I.

FACTUAL BACKGROUND [ 2 ] Shortly after midnight on May 24, 2012, Kevin Daly was driving west along Victoria Avenue in Regina. It was a dark, rainy night, and he had been drinking. In fact, he was intoxicated. At the intersection of Victoria Avenue and Atkinson Street, Mr. Daly

struck a pedestrian with his vehicle. That pedestrian was Edgar Machiskinic. [ 3 ] A friend of Mr. Machiskinic’s saw the collision occur. She said that Mr. Machiskinic was walking across the street, in the crosswalk, when she called out to him. When Mr. Machiskinic heard her, he turned back and began to walk towards her, and was struck by the car. She saw Mr. Machiskinic go flying through the air, and ran to a nearby restaurant to ask someone to call 911. [ 4 ] Police and EMS were on scene shortly. Police located Mr. Daly’s car near the intersection where the accident occurred. Mr.

Daly was not in the car when police arrived, but was seated on the steps of a restaurant a short distance away. He told the police that he struck something, but initially did not know what, then circled the block to see what he had hit, and parked his vehicle where the police found it. Mr. Daly was cooperative with the police. He admitted to being the driver involved in the accident, admitted he had been drinking, and complied with a breath demand. He provided breath samples indicating a blood alcohol concentration of 130 mg/%. [ 5 ] Mr. Machiskinic was transported to hospital by ambulance.

In addition to suffering road rash abrasions, Mr. Machiskinic sustained multiple skull and facial fractures, subdural bleeding and a brain injury. The consequences of his brain injury were devastating. It has affected his memory, as he is unable to remember some events prior to, and including the accident; he has difficulty recognizing family members, and those family members have noticed a significant change in his personality; he has lost hearing in his right ear. Mr. Machiskinic also suffered nerve damage in his right side, which has affected his coordination and mobility.

He has gone from living independently to requiring significant care from family members. It is unlikely that his condition will improve. II. THE POSITION OF THE PARTIES [ 6 ] The Crown seeks a period of imprisonment of 12 months, followed by a driving prohibition and DNA sample order. The Crown argues that a sentence of imprisonment is necessary to reflect the gravity of the offence and Mr. Daly’s moral culpability, and to address the need for denunciation and deterrence. [ 7 ] Mr.

Daly argues that while the offence is undeniably serious, the goals of denunciation and deterrence can be met by a sentence other than incarceration, given his good character, remorse, lack of record, and the need to observe the principle of restraint. III. THE OFFENDER [ 8 ] Mr. Daly is 46 years old, and has no previous criminal record. He is married, and has two sons, aged 17 and 19. Mr. Daly grew up in Regina, obtained a university degree in 1991, and has been steadily employed since that time. Mr.

Daly’s employment has seen him reside in a number of major cities in Canada and the United States, but from January of 2010 until he was arrested for this offence, he lived in Tampa, Florida. As part of his bail conditions, Mr. Daly was required to surrender his passport, and accordingly has not been able to travel to Florida for more than 9 months. [ 9 ] Mr. Daly has a supportive family. His employment supervisor describes him as a “marvellous worker” and an exemplary employee. He is extremely remorseful for this incident, and has been assessed as a low risk to re-offend.

He does not have a history of problem drinking, and by all accounts, the type of behaviour he exhibited in the early morning hours of May 24, 2012 is totally out of character for him. IV. ANALYSIS [ 10 ] In any case, a sentencing decision must be guided by the provisions of sections 718 to 718.2 of the Criminal Code . While the individual offender is central to the process, his circumstances cannot be the entire focus.

[11] The fundamental purpose of sentencing, as outlined in

section 718 of the Criminal Code, is to contribute to respect for lawand the maintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions having one or more of thefollowing objectives: denunciation of unlawful conduct; deterring the offender and others from committing offences; separation ofoffenders from society where necessary; rehabilitation of offenders; providing reparations to the victim and community; and promoting asense of responsibility in offenders as well as acknowledgment of harm done. The relative emphasis to be placed on each of theseobjectives varies according to the circumstances of the offence and the offender. [12]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that the sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. This means that, even though the emphasisgiven to the sentencing objectives listed in

section 718 may vary according to the circumstances, the resulting sentence must respect thefundamental principle of proportionality: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. [13]

Section 718.2 requires a sentencing judge to have regard for secondary sentencing principles, including consideration ofaggravating and mitigating circumstances, totality, parity, and the need to consider all available reasonable sanctions other thanimprisonment.

a) Proportionality -

section 718.1 [14] Proportionality is central to the sentencing process: R. v. Nasogaluak, supra; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R.309. It is the most important of the factors codified in sections 718 to 718.2: R. v. Arcand, 2010 ABCA 63. In R. v. Ipeelee, 2012 SCC13, [2012] 1 S.C.R. 433, Justice LeBel had this to say about the importance of proportionality in sentencing: [37]...Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [15] The offence of impaired driving causing bodily harm is an indictable offence, which carries a maximum penalty of 10 years’imprisonment.

It is a “serious personal injury offence” as defined in

section 752 of the Criminal Code (See R. v. Littlecrow, 2011 SKQB 393), and as such persons who commit the offence are not eligible for conditional sentences of imprisonment[1]. In short, it is bydefinition an offence of significant gravity. [16] As with any offence, there are varying degrees of severity in the manner in which the offence of impaired driving causingbodily harm may be committed. [17] In this case, there is no evidence that Mr. Daly was speeding, racing, performing stunts, or otherwise driving erratically beforehe struck and injured Mr. Machiskinic. Mr.

Daly’s blood alcohol level, while well over the legal limit, was not high enough to be intothe category where it would be deemed to be an aggravating factor by

section 255.1 of the Criminal Code. Mr. Daly did not flee thescene; he remained nearby and was cooperative with the police. The absence of such aggravating factors might serve to reduce theobjective gravity of the offence. [18] On the other side of the coin, however, Mr. Machiskinic was lawfully crossing the street when he was struck, in an areawhere drivers ought to be aware of the possible presence of pedestrians. The injuries suffered by Mr. Machiskinic were devastating.Those factors increase the objective gravity of the offence.

[19] In considering the degree of responsibility of the offender, the evidence suggests that, at the time Mr. Daly struck Mr.Machiskinic, it was dark, the visibility conditions were less than ideal, and Mr. Machiskinic was wearing dark clothing. I must alsoconsider the fact that, through his guilty plea, Mr. Daly has acknowledged that his impairment by alcohol was a significant contributingcause to the collision that injured Mr. Machiskinic. Though he was not speeding or driving erratically, I can infer that Mr. Daly’simpairment diminished his capacity to notice Mr.

Machiskinic on the street, and reduced his ability to react to Mr. Machiskinic’spresence. [20] I must also consider the degree of Mr. Daly’s responsibility in light of the fact that, on this occasion, he chose to consumealcohol to excess and then made a conscious decision to drive. He is a mature, intelligent, and high-functioning person. He has to betaken to be aware of the inherent danger in drinking and driving. He was travelling from one location in Regina to another, and wouldmost certainly have had other transportation options available to him.

In spite of all that, he decided to drive. [21] I consider the gravity of the offence and the degree of Mr. Daly’s responsibility to be very high.

b) Purposes of Sentencing -

section 718 [22] Mr. Daly has no prior criminal record, no significant personal issues which need to be addressed, and is seen as a low risk tore-offend. I am satisfied that he does not need to be specifically deterred from committing further offences by the sentence that I impose,as I am confident that the consequences of his conduct, namely being charged with and convicted of a criminal offence, being separatedfrom his wife and children, facing uncertainty regarding his employment, and living with the guilt of having seriously injured anotherperson, are likely all the deterrence he needs.

There is no specific area in which he requires rehabilitation, and because he is such a lowrisk to re-offend, it is not necessary to separate him from society for the sake of public protection. [23] However, the sentence cannot focus entirely on Mr. Daly. The nature of his crime is such that the sentence I impose mustadequately denounce the conduct, and must be sufficient to deter others from committing similar offences. In R. v. Trobert, 1999 SKQB189, Scheibel J. wrote: [9] The accused appears remorseful and it is unlikely he will commit an offence of this nature in the future. However, as I have stated inR. v.

Gross (T.M.) (1999), (SK KB), 179 Sask. R. 280 (Q.B.), having regard to the serious problem of drinking anddriving, sentences imposed for alcohol related driving offences must reflect that general deterrence is the predominant concern.

Suchdeterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from thedriving...Therefore the sentence must not only denounce the indefensible conduct of the accused, but must be one which sends a strongmessage to those so inclined to drive while their ability is impaired by drugs or alcohol that such conduct cannot and will not betolerated. [24] In R. v.

Luskin, 2012 ONSC 1764, Justice Trotter wrote: [18] The law is clear – in drinking and driving cases that result in death or bodily harm, the principal aims of sentencing must be generaldeterrence and denunciation. This approach can be traced back to the decision of the Court of Appeal for Ontario in R. v. McVeigh(1985), (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.). [19] In R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.), Justice Cory explained the impact of drunk drivingin our communities. As he said at p. 204: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.

From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. After reviewing empirical data on the issue, Cory J. added the following observations, at p. 205: These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking anddriving.

The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime throughthe death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal

Code amendments were enacted aimed at eliminating or, at least, reducing the problem. [20] There is no reason to think that these words are any less valid today. Indeed, since Bernshaw, a virtual chorus of cases repeat theseconcerns and continue to stress the importance of deterrence and denunciation. [25] This line of reasoning has been consistently expressed by superior and appellate courts in this province, and others. Theresounding theme is that denunciation and general deterrence are paramount sentencing principles for drinking and driving offences: R.v. Armstrong, 2012 SKQB 428; R. v.

Bear, 2008 SKCA 172; R. v. Hamel (1999), (SK CA), 172 Sask. R. 251 (C.A.);R. v. Schneider (1994), (SK CA), 123 Sask. R. 162 (C.A.); R. v. Biancofiore (1997), (ON CA), 119C.C.C (3d) 344 (Ont. C.A.); R. v. Henderson, 2012 MBCA 9; and R. v. MacLeod, 2004 NSCA 31, for example. [26] While the merits of general deterrence in sentencing may be subject to debate, it is my view that otherwise law-abidingcitizens, like Mr. Daly, who drink and drive are the persons most likely to be deterred from such activity by the prospect of a harshsentence. As Chief Justice Lamer noted in R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraph 129: ...Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, suchpersons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras18-24; R. v.

Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [27] A significant sentence is also necessary, in my view, to send the message that what Mr. Daly did was not merely anunfortunate accident; it was a crime.

c) Relevant aggravating and mitigating factors [28] Mr. Daly made the conscious decision in this case to drive after he had been drinking. There is no evidence that he wasdriving in a situation of any urgency, and there clearly would have been other, safer, options available to him. I consider that anaggravating factor. The devastating and permanent injuries caused to Mr. Machiskinic are also a significant aggravating factor. [29] There are a number of mitigating factors in this case as well. They include: • Mr. Daly’s guilty plea, which occurred prior to trial or preliminary inquiry; • The fact that Mr.

Daly did not flee the scene, and that he cooperated with police and accepted responsibility for his actions; • He has no previous criminal record; • Mr. Daly has an exemplary employment history, strong family support, and is of otherwise good character; • He is genuinely remorseful; • Mr. Daly has been subject to a deprivation of liberty, due to having to surrender his passport as part of his bail conditions. Thishas meant that he has been separated from his wife and sons for the better part of the last nine months.

d) Parity: sentences in similar cases [30] The principle of parity, embodied in

section 718.2(

b) of the Criminal Code, dictates that an offender’s sentence should besimilar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity is not the equivalentof uniformity, as the individual nature of sentencing and the need to respect the principle of proportionality mean that disparity can existwhere circumstances warrant. Such disparities, however, should not be egregious, or unjustified.

[31] Sentences for this type of offence vary widely. In some cases, sentencing courts have imposed fines followed by periods ofprobation. Examples include R. v. Riddell, 2011 SKQB 378 and R. v. Weisgerber, 2009 SKPC 107. [32] In Riddell, the 19 year old accused ran into a vehicle which was parked illegally, on the wrong side of the street, with its dooropen into traffic. The accused struck the door, which closed on the victim’s leg, causing a significant break. The accused did not stop,but continued to drive home. He was arrested at home by police, and determined to have a blood alcohol concentration of 190 mg/%.

The accused also had significant health problems. The sentencing judge, Gunn J., described him as “mentally fragile and physicallychallenged”, and it was noted that he had severe depressive symptoms and an increased risk of suicide if incarcerated. He had justbroken up with his girlfriend on the day of the offence. Gunn J. determined that a jail sentence was not the only means of addressing theprinciple of deterrence, and imposed a fine of $2,500.00, followed by three years probation. [33] In Weisgerber, the 67 year old accused was rear-ended by another vehicle while driving impaired.

He was aseasoned alcoholic, and provided a blood-alcohol reading of .403. He had three previous convictions for impaired driving. JudgeHarradence imposed a $2,000.00 fine. The injuries to the victim were not serious. [34] In other instances, courts have suspended the passing of sentence, and imposed periods of probation. However, as theManitoba Court of Appeal noted in R. v. Henderson, supra, such cases are the exception rather than the rule. In Henderson, the accuseddrove home drunk from a bar and was involved in an accident that caused injuries.

The trial judge imposed a suspended sentence, withprobation for two years, noting that the case was out of the ordinary, and calling the fact that the accused became impaired because ofthe combination of alcohol and a prescription drug taken for a medical condition an “exceptional circumstance” that justified a non-custodial sentence. While the Court of Appeal upheld the sentence, it noted that: [40]...normally the sentence imposed for impaired driving causing bodily harm, even for a first offender, is a jail sentence. See, forexample, R. v. Doerksen (1990), (MB CA), 62 Man. R. (2d) 259 (C.A.); R. v.

MacDonald (J.K.) (1999), (MB CA), 138 Man. R. (2d) 194 (C.A.); R. v. Ramage, 2010 ONCA 488, 265 O.A.C. 158; R. v. Vertlib, 2008 ONCA 236(QL); R. c. Morency, 2010 QCCQ 1520 (QL); and R. v. Currell, 2010 ONCA 826 (QL).

As well, numerous amendments to the Codesince 1985 to increase penalties for drinking and driving offences demonstrates Parliament’s intention to deter and denounce drinkingand driving offences. [35] The Court in Henderson also commented, at paragraph 47, that a sentence for impaired driving causing bodily harm willgenerally involve a term of imprisonment unless there are exceptional circumstances, and that a good record and remorse do not amountto exceptional circumstances. [36] That said, there are cases from other jurisdictions where suspended sentences, or other non-custodial sentences were imposedin cases of this nature: See R. v.

Martin (1996), 1996 NSCA 207 , 154 N.S.R. (2d) 268 (C.A.); R. v. Roasting, 1999 ABCA 52;R. v. Rowan (2004), (ON CA), 190 O.A.C. 342 (Ont. C.A.); R. v. Harris, 2002 CarswellQue 885 (C.Q.). Not all ofthem involve exceptional circumstances. [37] Most commonly, however, periods of imprisonment are imposed for impaired driving causing bodily harm, even for offenderswho have no previous record. As the Ontario Court of Appeal noted in R. v.

Junkert, 2010 ONCA 549, jail sentences for cases ofimpaired driving involving death or bodily harm should come as no surprise. [46]...In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences.

The reasonsfor this trend can be attributed to society’s abhorrence for the often tragic circumstances that result when individuals choose to drink anddrive, thereby putting the lives and safety of others at risk. [47] The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who areconsidering driving while their ability is impaired. [38] It seems that the more aggravating factors there are (high speeds, egregious driving actions, high blood alcohol readings, moreserious injuries, etc.), the longer the sentence.

Conditional sentences were not uncommon for offences committed before 2007 by

offenders with no previous record, but in those cases, the courts frequently commented that a conditional sentence was still a jail sentence, required to address the need for denunciation and deterrence. Examples include: R. v. Armstrong , supra The accused was travelling approximately 130 km/h in a 50 km/h zone when he lost control and collided with a tree. One of his passengers suffered a broken arm, and significant emotional trauma. The accused’s blood alcohol concentration was 187 mg/%. He had no previous record.

Scheibel J., distinguished Riddell , supra , on the basis of the high speed involved, and sentenced the accused to 4 months imprisonment, followed by 18 months probation. R. v. Hamel , supra In this case, the accused, aged 22, pled guilty to dangerous driving causing bodily harm and driving while over .08. He sped through an intersection, lost control, and crashed into a power pole. Three of his passengers suffered significant injuries. The accused’s blood alcohol level was .16. He had no record, but appeared to have an issue with alcohol, and was considered a medium risk to re-offend.

The Court of Appeal overturned the 90 day intermittent jail sentence imposed by the trial judge, and increased it to 6 months, followed by two years’ probation and a two year driving prohibition. R. v. Littlecrow , supra In this case the offender had 4 previous drinking and driving convictions, the most recent of which was 13 years previous. While driving on a highway near Saskatoon, she crossed the centre line and collided head-on with an oncoming vehicle, causing significant injuries to both of the occupants in that vehicle. Her blood-alcohol concentration was .287 at the time.

The Court imposed a jail sentence of two years less a day, plus a 5 year driving prohibition. R. v. Fuecht , 1992 SKCA (SentDig) 42 The accused was 25 and had no prior record. He drove away from a bar and rear-ended a vehicle stopped at a red light, causing whiplash injuries to the driver of that vehicle. The accused then attempted to flee the scene and collided head-on with another vehicle, knocking the driver of that vehicle unconscious.

The accused was sentenced to 6 months imprisonment on the charge of impaired driving causing bodily harm, and 3 months consecutive on the charge of failing to remain at the scene. The Court of Appeal upheld the jail sentence. R. v. Frank , 2004 SKCA (SentDig) 37 The accused was 23, and had a minor record with no previous driving-related convictions. He was intoxicated, and drove through the country in a dangerous and reckless fashion. He rolled his vehicle, and both his passengers were injured. The injuries were not as serious as those suffered by Mr. Machiskinic.

The trial judge imposed an 18 month conditional sentence of imprisonment, which was reduced to 1 year on appeal, followed by a 2 year driving prohibition. R. v. Horon , 1990 ABCA 242 In this case, the accused was initially sentenced to a fine and probation for a single count of impaired driving causing bodily harm. He had been drinking at a party, and decided to drive home, despite the urging of others that he not. The accused drove into the oncoming lane, and another vehicle had to take evasive action which led to the accused turning head-on into that vehicle.

The victim suffered a fractured wrist and lacerations. In overturning the sentence of the trial judge and substituting a two month jail sentence, the Court noted, at paragraph 17: [17] In this case the trial judge recognized the importance of general deterrence and stated that “in the normal case”, a gaol term would be required. I agree with that conclusion. I also agree with her that a driving prohibition is a deterrent, but the trend is to consider it generally inadequate for this offence. Similarly, community service orders are, generally speaking, an inadequate deterrent. R. v.

Startup , 2011 ABPC 389 In this case, the accused was a 21 year old who was convicted after trial of impaired driving causing bodily harm and dangerous driving causing bodily harm. He drove away from a pub where he had been drinking, lost control of his vehicle due to icy conditions and excessive speed, and hit a brick retaining wall. His passenger, who was not wearing a seatbelt, was thrown through the windshield and injured. While the accused had no criminal convictions, he had a record that included 3 convictions for provincial highway traffic

offences. The Court imposed a sentence of 1 year imprisonment and a three year driving prohibition, describing it as “at the low end ofthe range”. R. v. Stefinashen, 2010 CarswellOnt 4826 (Ont. C.J.) The accused was 18 and had no criminal record. He pled guilty to impaired driving causing bodily harm. While travelling 106 km/h in a40 km/h zone, he lost control, hit a tree and injured two passengers. One suffered a brain injury with permanent disability, and the othersuffered a concussion and a broken leg. The Court imposed a 6 month jail sentence and a one year driving prohibition. R. v.

Kannokko, 2009 ABPC 199 The accused in this case was driving approximately 140 km/h in a 110 km/h zone on the highway, and lost control of his vehicle. He hada blood alcohol concentration of 165 mg/%. The victim of the offence suffered a broken pelvic bone and spent 10 days in hospital. Theaccused had no previous criminal record, was remorseful and pled guilty. The court imposed an 8 month jail sentence and a 4 yeardriving prohibition, noting the high blood alcohol readings and the serious injuries to the victim as aggravating factors. R. v.

Roininen, 2009 ABPC 299 The accused in this case had been drinking, then drove with her passenger down a gravel road to get food. She rolled the vehicle, and herpassenger suffered a broken knee and a broken hip. The broken hip left the victim with permanent disability. The accused had a bloodalcohol concentration of 150 mg/%. She pled guilty and had no previous record. The court imposed a 9 month conditional sentence ofimprisonment, with the first 6 months under house arrest. R. v. Morency, 2010 QCCQ 1520 In this case, the accused was the 63 year old grandmother of the victim.

She lost control of her vehicle and hit a tree while her bloodalcohol concentration was .130. The victim suffered a skull fracture. There were no other aggravating factors. The accused had no priorrecord, pled guilty, and was obviously remorseful. The offence happened before 2007. The Court imposed an 18 month conditionalsentence of imprisonment.

e) Restraint [39] Sections 718.2(

d) and (

e) require that an offender not be deprived of liberty if less restrictive sanctions are appropriate. It alsorequires that a sentencing judge consider all available sanctions other than imprisonment that are reasonable in the circumstances. [40] In light of the gravity of this offence, especially taking into account the serious nature of the injuries suffered by Mr.Machiskinic, and the conscious, volitional nature of Mr. Daly’s decision to drink and drive, I conclude that no sanction short ofimprisonment would be reasonable in the circumstances.

Where a sentence is required to focus on deterrence and denunciation, it isimportant that the sentence contain a significant punitive element. A sentence can only denounce conduct and deter others to the extentthat it is punitive. The essence of general deterrence is punishment: R. v. Rawn, 2012 ONCA 487, at para. 33; R. v. P.(B.W.), 2006 SCC27, [2006] 1 S.C.R. 941. [41] A measure such as a suspended sentence with probation is primarily a rehabilitative sentencing tool: R. v. Proulx, supra. It isnot designed to punish, and therefore not designed to have denunciatory or general deterrent effects.

A suspended sentence is generallyinadequate when the sentence calls for a focus on deterrence and denunciation: R. v. Rawn, supra; R. v. Dunn, 2011 NBCA 19; R. v.Taylor (1997), (SK CA), 163 Sask. R. 29 (C.A.). In this case, a suspended sentence would clearly be inadequate. Itwould not be proportionate to the gravity of the offence or the degree of Mr. Daly’s responsibility. It would not sufficiently denouncethe crime, nor would it provide general deterrence. Likewise for a fine, or even the combination of a fine and a period of probation.

Inmy view, the need for denunciation and general deterrence in a case such as this is so strong that the only sentence that is sufficientlypunitive to provide it while at the same time respecting the principles of proportionality and parity is a jail sentence.

[ 42 ] Giving due consideration to the mitigating factors present in this case leads me to the conclusion that a jail term at the low end of the range is appropriate. A jail sentence that is no longer than necessary also respects the principles of proportionality and parity. CONCLUSION [ 43 ] I sentence Mr. Daly to a term of imprisonment of six months in a Provincial Correctional Centre. [ 44 ] Pursuant to section 259(2), I make an order prohibiting Mr. Daly from operating a motor vehicle on any street, road, highway or other public place anywhere in Canada for two years. [ 45 ] Impaired driving causing bodily harm is a secondary designated offence, as defined in

section 487.04 of the Criminal Code , and the Crown requests that I make a DNA sample order as part of Mr. Daly’s sentence. Considering the serious nature of the offence, the circumstances surrounding its commission, and the fact that Mr. Daly will be serving a jail sentence and subject to a reduced expectation of privacy as a result of this conviction, I am satisfied that it is in the best interests of justice to make such an order. Accordingly, pursuant to

section 487.051(3) of the Criminal Code , I make an order authorizing the taking of a DNA sample from Mr. Daly for forensic analysis. [ 46 ] The victim surcharge of $100.00 will apply in this case, pursuant to

section 737 of the Criminal Code , and Mr. Daly will have until October 31, 2013 to pay it. J.D. Kalmakoff, J [1] Recent amendments to the Criminal Code also make the offence of impaired driving causing bodily harm statutorily ineligible for consideration for a conditional sentence - see s. 742.1 (e). This

section was not proclaimed in force until November 20, 2012, so it is not applicable to Mr. Daly.