Her Majesty the Queen - v. -, 2019 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 52 Date: August 27, 2019 Information: 991063182 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon Mushanski Appearing: Andrew Campbell For the Crown Barry Nychuk For the Accused SENTENCING DECISION N. EVANCHUK, J I.

INTRODUCTION [ 1 ] Brandon Mushanski comes before this Court having entered a guilty plea to the charge that on or about August 19, 2018, he did have the care, charge or control of a vehicle that was involved in an accident with another person and knowing that bodily harm was caused to Jamie Strongeagle, another person involved in the accident, with intent to escape civil or criminal liability, did fail to stop his vehicle and assist an injured person contrary to section 252(1.2) of the Criminal Code . [ 2 ] Counsel for Mr.

Mushanski and the Crown agree to facts presented before the Court and the only remaining issue is determining an appropriate sentence. II. FACTS [ 3 ] Brandon Mushanski is 28 years of age, although he was 27 years old at the time the offence occurred. At 1:30 a.m. on August 19, 2018, Mr. Mushanski left his residence in his GMC Jimmy SUV en route to the McDonald’s drive-thru restaurant. The victim, Mr. Strongeagle, was outside with his friends, crossing Victoria Avenue on foot, heading northbound.

[ 4 ] Shortly before the accident, Mr. Strongeagle and his friends had stopped to take a “selfie” photo using a cellphone camera. Mr. Strongeagle, who was intoxicated, was still in the south portion of the divided Victoria Avenue, and bent over, when he was struck by Mr. Mushanski’s GMC Jimmy. The vehicle had been turning left from Park Street onto Victoria Avenue when the collision occurred. [ 5 ] The vehicle collided with Mr. Strongeagle on the front passenger side, causing some damage to the vehicle and causing minor debris to be scattered at the scene of the accident. After the accident, Mr.

Mushanski sped away travelling eastbound, making no attempt to stop. Witnesses at the scene estimated that the GMC Jimmy had been travelling between 30 and 40 km/hr. [ 6 ] Mr. Strongeagle was taken to hospital following the accident and suffered serious injuries, including multiple spine fractures and a brain bleed which required critical surgical attention. He required ongoing medical treatment following the accident, was on life support for over a week, suffered permanent scarring to his head, back and feet, and had to have screws inserted into his back. His injuries caused pain requiring painkillers, and Mr.

Strongeagle was further prescribed anti-psychotic and mood-stabilizing prescription medication to assist with his day to day recovery. To state that the accident had an immense and ongoing impact on his life would be an understatement. While he was previously employed, his injuries have left him unable to work. [ 7 ] Following the incident, Regina Police forensic identification and accident reconstruction officers attended at the intersection and obtained the debris from the accident.

From this evidence, the police were able to positively match the make and model of the vehicle in question as one matching that registered to Mr. Mushanski. On August 24, 2018, members of RPS observed a GMC Jimmy driven by the offender, matching the description of the suspect vehicle. Mr. Mushanski was stopped and arrested for unrelated traffic safety warrants. He was noted to be driving without a valid license at this time. [ 8 ] While in police custody Mr. Mushanski provided a false story about the cause of the damage to his vehicle. He indicated that he had damaged his headlight with a hammer.

RPS obtained a search warrant in order to follow-up on the vehicle damage. As a result of a database search, RPS suspected that in fact Mr. Mushanski was the driver of the vehicle that struck Jamie Strongeagle. [ 9 ] On August 26, 2018, the offender provided a statement to police, wherein he confessed to his involvement in the accident shortly after denying his responsibility. He indicated that he had hit something after leaving McDonald’s. He had heard the collision but did not see the collision, possibly because the victim had been wearing dark clothing and had been bent over in an intoxicated state.

Based on medical reports noted by counsel for Mr. Mushanski the victim was well over the legal limit prescribed for impaired driving under the Criminal Code . [ 10 ] The incident had a profound effect on Mr. Strongeagle, evidenced by the five victim impact statements that were filed by he, his mother and brother with the court as Exhibits P-4 through P-6. However, what is unique to this case is that in the spring of 2019, Mr.

Mushanski and the victim interacted in court, which led to a personal and meaningful sit-down meal between the young men, where the offender offered an apology for his actions and by all accounts the victim forgave the offender. Circumstances of the Offender [ 11 ] Mr. Mushanski is 28 years old, he is married and has three young children. He has a Grade 9 education and has been employed steadily for the last 10 years. He currently works as a framer for Duaco Construction, a job he has held for four years now. He had a tough upbringing but has been able to move on from that and improve his circumstances.

He states that his initial denial to the police of involvement in the accident was out of fear that he was going to lose his kids. He has since admitted to the offence and expressed considerable and heartfelt remorse for his actions. III. VICTIM IMPACT STATEMENTS [ 12 ] As noted above, Mr. Strongeagle and his mother, Tracey Ross each provided two victim impact statements. A further victim impact statement was filed on behalf of Mr. Strongeagle’s brother. [ 13 ] In the victim’s first impact statement, dated October 4, 2018, Mr.

Strongeagle notes how the accident has caused him to become unemployed, lose his driver’s license for medical reasons, and be prescribed strong painkillers for the first time in his life. He indicated that he struggled to understand why the accident happened and come to grips with the ongoing treatment he will require. [ 14 ] The victim’s mother Tracey Ross’ first impact statement follows along similar lines. She notes that her son has trouble sleeping, has lost confidence in himself and that he gets anxiety around certain noises. Similarly, the victim’s brother notes that Mr.

Strongeagle has changed and that he is in constant pain. In a second victim impact statement, Ms. Ross indicates that her 20 year old son has the body of a much older man and that he presents as a changed person on account of his trauma. [ 15 ] Notably, in a second victim impact statement dated March 28, 2019, Mr. Strongeagle reported that he has improved significantly. He notes that his outlook on life is better, and although he is still in pain, he has started going to the gym and is looking for work. He expresses hope that his life will return to normalcy and that he can put the accident behind him.

I find this change expressed by the victim to be remarkable, and reflective of his strength of character and courage. IV. SENTENCING POSITION OF THE PARTIES [ 16 ] The Crown submits that a 6-month sentence of incarceration, followed by a 2-year period of probation, with terms including an abstention clause and 50 hours of community service is fit given the circumstances. [ 17 ] Counsel on behalf of Mr. Mushanski submits that a 90-day sentence, to be served intermittently, followed by a period of probation, is appropriate. Notably, counsel for Mr.

Mushanski also indicated that a driving prohibition, while discretionary, is appropriate. V. ANALYSIS AND DECISION ON SENTENCE

The Purpose and Principles of Sentencing [ 18 ] Sections 718 through 718.2 of the Criminal Code set out the purpose and principles of sentencing that a court must take into consideration when determining a fit and proper sentence. 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. In addition to the above objectives,

section 718.1 sets out the fundamental principle in sentencing. That

section reads: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 19 ] In order to meet the above purpose and principles of sentencing,

section 718.2 provides additional principles that a sentencing judge must take into consideration. Those include parity and any aggravating or mitigating factors that are unique to the particular circumstances of the offence or the offender.

Section 718.2(

d) further provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. Parity [ 20 ] I will start my review of the case law with the Saskatchewan Court of Appeal decision in R v Kang , 2015 SKCA 98 , 465 Sask R 269 [ Kang ]. This case was filed by the Crown, although I find it has limited applicability to the case of Mr. Mushanski. Kang was a case of dangerous driving causing death and bodily harm and the Court of Appeal underwent an extensive review of the law on impaired driving causing death. There is, however, a brief

section of the judgment that focuses on the offender’s failure to stop charge. The case law reviewed by the Court of Appeal deals with fact scenarios that are significantly more egregious than the matter before this Court. In Kang , the Court of Appeal increased the offender’s sentence for failing to stop to one year of incarceration which was to be served consecutively with his sentence for impaired driving causing death. The limited value that this case has, then, is to demonstrate that a sentence of 12 months, which is well above what the Crown is seeking for Mr.

Mushanski, is appropriate only in a fact pattern far more serious than the circumstances of Mr. Mushanski’s offence. [ 21 ] The Crown also filed a case from this Court, R v Cook , 2013 SKPC 161 [ Cook ]. In Cook , Judge Hinds conducted an extensive review of Saskatchewan and Canadian case law. At paragraph 89, Judge Hinds wrote the following: At the low end, the case law above demonstrates that under exceptional circumstances, a suspended sentence may be appropriate.

However, a period of incarceration ranging from 2-15 months will generally be required to denounce and deter others from fleeing the scene of an accident where there is knowledge that bodily harm has occurred. I see no reason not to accept Judge Hinds’ conclusion on the range of sentences available for this offence. Indeed, both the Crown and defence have recognized that this is an appropriate range by asking for sentences that fall within this range. [ 22 ] In Cook , the offender (22) plead guilty under section 252(1)(

a) of the Code . The circumstances of the offence were that, per Ms. Cook’s own admission, she had been out drinking and decided to drive home. Cook was not, however, an impaired driving case as there was no evidence of impairment before the Court. On her way home, in the early hours of the morning, Ms. Cook ran over a man who had consumed so much alcohol that he passed out in the middle of the road. Ms. Cook stopped briefly at the scene, realized she had run over a person and then drove away and went home. When the police were investigating and first contacted her, Ms. Cook denied her involvement. In fact, Ms.

Cook maintained her denial of involvement until the police had enough evidence to link her to the accident. At that point, she confessed to the police and later plead guilty. Ms. Cook had no criminal record and she received a 90-day intermittent sentence. It is important to note that, in Cook , the level of bodily harm suffered by the victim was extremely high. [ 23 ] The defence filed the cases of R v Middleton , 2009 SCC 21 , 244 CCC (3d) 52 [ Middleton ], and R v Naidu , 2017 BCSC 671 [ Naidu ]. In both cases, the offender received a 90-day intermittent sentence.

While Middleton does provide an overview of intermittent sentences, it is unhelpful in determining the length of sentence that must be imposed because it involved an assault causing bodily harm. Naidu , on the other hand, does address section 252(1.2) of the Criminal Code . In that case, the offender caused serious bodily harm to the victim when his vehicle collided with her person. It was determined that Mr. Naidu bore no responsibility for the accident itself, because a combination of time of day, weather and the apparel of the victim would have made it impossible for Mr. Naidu to have seen the victim.

His culpability, therefore, arose solely from his failure to stop. With that being said, Mr. Naidu may have left the scene of the accident, but he was uncertain what he hit. He stopped his car at a nearby gas station and heard screaming coming from the scene of the accident and realized that what he had hit was a person. As an immigrant, he feared his safety would be in jeopardy if he returned to the scene so he instead contacted some friends and family members who, on the same evening, accompanied him to the police station where

he turned himself in and was completely cooperative with the police. The level of bodily harm suffered by the victim was very high. Mr. Naidu had no criminal record. [ 24 ] In addition to the above cases, I have reviewed two more recent decisions from the Saskatchewan Court of Queen’s Bench. In R v Racette , 2017 SKQB 132 , the offender was convicted of four offences – dangerous driving, impaired driving, refusal and failure to stop. He was 52 years old and had a lengthy record that included 12 prior driving offences.

The aggravating factors in this case were that he was drunk, uncooperative with the police and driving without a license. Mr. Racette received a 6 month consecutive sentence for the failure to stop. [ 25 ] In R v Landry , 2017 SKQB 169 , Mr. Landry plead guilty to, while operating a stolen car, running a stop sign and t-boning a vehicle. After the accident, Mr. Landry got out of his car and ran from the scene. He was arrested about two blocks away. He had a very lengthy criminal record and was on parole at the time of the offence. He received a sentence of 15 months.

Mitigating Factors [ 26 ] I find the following to be mitigating factors in this case: • Mr. Mushanski plead guilty, although this was only after first having denied his involvement and lying to the police. • Mr. Mushanski has a limited criminal record and there is a six year gap between this offence and his most previous offence. • Mr. Mushanski is relatively young (27). • Although Mr. Mushanski only has a Grade 9 education, he has been employed consistently for the past 10 years. He has been employed with his current employer for four years. • Alcohol and drugs were not a factor in the accident. • Mr.

Mushanski has expressed remorse for his actions. He located the victim on Facebook, made contact, and took the victim out for dinner. Mr. Mushanski apologized in person to the victim and I have accepted that apology as genuine. Aggravating Factors [ 27 ] I find the following to be aggravating factors: • There was a level of deceit in Mr. Mushanski’s actions after the offence. He had an early opportunity to come clean with the police during the traffic stop and he created a lie to distract the investigation. • Mr.

Mushanski has a history of regulatory driving offences that show a passing disregard for traffic laws. • Although Mr. Mushanski’s criminal record is dated, it is serious. • The level of bodily harm suffered by the victim was high. The Appropriate Sentence [ 28 ] As I noted above, the case law establishes a sentencing range of 2 months to 15 months incarceration. I am satisfied that the circumstances of this offence and the circumstances of Mr. Mushanski place this case at the lower end of that range.

The case law also establishes that the focus of sentencing for this offence should be on denunciation and deterrence. The defence is seeking a 90-day intermittent sentence, the same sentence imposed in Cook and Naidu . For the reasons that follow, I cannot accept a 90-day intermittent sentence as appropriate. [ 29 ] Both Cook and Naidu are distinguishable from this present case. Neither offender had a criminal record. Mr. Naidu, additionally, demonstrated no deceit in dealing with the police and actually turned himself in. While Ms.

Cook did conceal information from the police at first, she had significant personal circumstances that served to mitigate her sentence. Additionally, the victim in Cook was lying down on the road, passed out and would, therefore, be even less visible to a driver than the victim in Mr. Mushanski’s case, who was bent over but still on his feet. Mr. Mushanski, as well, has a criminal record, albeit a dated one. He also, however, has a history of regulatory infractions related to driving.

For these reasons, I conclude that a period of incarceration above the 90-day sentence asked for by the defence is appropriate in these circumstances. At the same time, given the above case law, I am convinced that a sentence of 6 months is unduly high – given that the circumstances of cases that received 6 months or higher are significantly more egregious than the circumstances of the offence committed by Mr.

Mushanski. [ 30 ] In addition to the above considerations, I must also balance the unique factors of this case whilst also publicly denouncing and deterring hit and runs, which are very serious offences – especially where bodily harm of another person is the result. It is necessary, however, to note that the victim in this case was extremely intoxicated. While this is not a mitigating factor, I accept that this does reduce, somewhat, Mr. Mushanski’s moral blameworthiness as he was neither driving dangerously nor driving while impaired.

With that being said, having regards to the purpose and principles of sentencing enunciated in the Criminal Code , the principle of parity and the unique mitigating and aggravating factors in this particular case, I find that a sentence of 4 months incarceration is appropriate, followed by a period of probation of 1 year. Per

section 732.1(2) of the Criminal Code , I set the following as conditions of Mr. Mushanski’s probation: (

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

b) appear before the Court when required to do so by the Court; and

(

c) notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation. [ 31 ] In addition to this, I impose a 1 year driving prohibition which, for clarification, will commence upon completion of Mr. Mushanski’s jail term. ____________________ N. Evanchuk, J