R. v. ANDERSON, 2016 MBPC 28

CITATION: R. v. ANDERSON , 2016 MBPC 28 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Shane Smith, ) for the Crown ) and ) ) ) Stephen Anderson ) Leonard Tailleur, ) for the Accused ) ) ) ) Reasons for Decision delivered: ) May 24, 2016 L. MARTIN, P.J. Introduction [ 1 ] Stephen Anderson (Anderson) has pleaded guilty to one count of driving over 80 mg% causing bodily harm, contrary to s. 255(2.1) of the Criminal Code , and one count of failing to attend court, contrary to s. 145(2) (

b) of the Criminal Code . At issue is the appropriate sentence for these offences. Facts [ 2 ] On September 15, 2013 shortly after midnight, Michael Speranza (Speranza), Benjamin Winston (Winston) and Kelsey Bachalo (Bachalo), three young adults in their early twenties, were on their way to a bonfire. Speranza was driving, Winston was in the front passenger seat, and Bachalo was in the back. As Speranza was driving southbound on the Perimeter Highway between Portage Avenue and Roblin Boulevard, he saw headlights from the vehicle driven by Anderson approaching in his lane.

Speranza took evasive measures, changing lanes and coming to a stop near the meridian. As the three sat in their car, they saw the headlights move into their lane. Within seconds, they were hit head on by Anderson. [ 3 ] An accident re-constructionist determined that one second prior to impact, Anderson applied his breaks, slowing his vehicle from a speed of 105 to 77 kmph. [ 4 ] Upon impact, Anderson immediately stopped his vehicle and went to Speranza, inquiring as to the well-being of the occupants.

Though Bachalo was able to walk away from the car, both Speranza and Winston were trapped inside, requiring the ‘jaws of life’ to extract them. Speranza had a notable injury to his left knee, while Winston was knocked unconscious. [ 5 ] At the time of the collision, Anderson had an estimated blood alcohol reading of 185–221 mg %. A search of his vehicle revealed an open 355 ml can of Budweiser beer and a broken Budweiser king can. He had glossy, “heavy” eyes and a smell of liquor on his breath. He was taken to the hospital, complaining of discomfort, but was ultimately discharged.

Emergency medical personnel noted that he was making jokes and trying to “high 5” them. Victim Impact [ 6 ] The collision was a life changing event for all three victims.

[ 7 ] In addition to various contusions and soreness, Speranza suffered an open commuted fracture of his left patella, which extended to the knee joint, as well as a torn medial collateral ligament which required surgery. He was hospitalized from September 15- 20, 2015, then, required a knee brace and intensive physiotherapy. His knee has never been the same since. To this day, he continues to suffer chronic pain and physical limitations which have had an impact on his overall health, schooling, and employability. Speranza also suffered significant emotional trauma.

At the time of the collision, he wondered if he and his friends were going to die. Since the collision, his behaviour and outlook on life has changed. He has difficulty sleeping. He is fearful, depressed, angry and easily frustrated. [ 8 ] As for Winston, in addition to bruising to his right lung and a small fracture to his left hand which required a cast, he suffered a small hemorrhage to his right frontal lobe, a right-sided subdural and extradural haematoma, as well as a skull fracture and concussion.

He remained in the hospital from September 15-18, 2013 and thereafter required physiotherapy and follow-up for his brain injury. He too became sad, thinking of what could have happened that night. His life has changed in all regards. He cannot do the same sports. He missed school and work. [ 9 ] As for Bachalo, she suffered a chipped tooth, as well as generalized soreness to her right collarbone and right side ribs. She missed one week of school and a month of work. She too was affected emotionally by the collision. The Offender [ 10 ] Anderson is a 28 year old Aboriginal man with no prior record.

Though he hails from Fairford First Nation, he now considers Ebb and Flow to be his home. [ 11 ] Anderson grew up not knowing his biological father. He was raised by his mother and step-father, the latter with whom he and his mother no longer have any contact, for reasons that are not clear. [ 12 ] Anderson presented, and is described as a very quiet and reserved individual. The pre-sentence report notes that as a child he was frequently bullied. To ensure that he received an appropriate education that was lacking on the reserve, Anderson’s mother sent him away to school, first to Moosehorn, and then to Ashern.

He found the experience isolating and stressful. He returned to Fairford for Grade 10 and 11, and then moved to Ebb and Flow, where his family was residing. It was in Ebb and Flow that he met his wife. Together, they have three children, aged 6, 2 and 1. [ 13 ] Anderson comes from a very supportive family which is not criminally involved. His maternal grandparents went to day school which resulted in them losing their language and their culture. They adopted Christianity which they have passed on to their children and grandchildren.

Anderson appears to know little of his heritage, though his wife is culturally aware and he is interested in learning more. [ 14 ] He has been a pro-social individual who has achieved post-secondary education and been gainfully employed at a variety of jobs. Most recently, he has been employed full time since September 2013 and is still seen as a valued employee. It is this job that caused Anderson to leave his family in Ebb and Flow, and move to Winnipeg. [ 15 ] Anderson first began drinking at the age of 17, though his consumption was infrequent. This changed when he moved to Winnipeg in September 2013.

It was at this time that Anderson began drinking on pay days to cope with his feelings of loneliness and isolation. This coping mechanism appears generational in Anderson’s family. As explained by the pre-sentence report writer: The historical impact of colonization and of residential schools has affected the subject’s family. There has been a devastating generational impact of lost culture and identity which continues to affect the subject and both the communities he feels connected to.

Though they struggled to discuss some [of] the issues that highlight the colonization that their community has suffered through, the family disclosed generational struggles and it is clear that substance misuse has become a means to cope. [ 16 ] Anderson remembers very little about his collision on September 15, 2013. He is at a loss to explain how it is he ended up on the Perimeter Highway driving in the wrong direction.

He is extremely remorseful, fully understanding the seriousness of his actions and the impact they have had on the victims. [ 17 ] Initially, Anderson had difficulty facing the consequences of his actions. He stopped participating in Restorative Resolutions, and he failed to come to court for his first sentencing hearing on July 15, 2015, resulting in a further charge of failing to attend court, for which he was detained five days at the Remand Centre in October 2015. [ 18 ] This period of detention appears to have brought home to Anderson the need to begin addressing his alcohol consumption.

Though he has not yet sought treatment specific to alcohol consumption, he has begun to address some of his underlying issues, notably by attending the Spirit of the Peace program at Ma Mawi. [ 19 ] Anderson is assessed as a low risk to re-offend. The pre-sentence report writer states that given Anderson’s “attachment to his community(

s) and his commitment to his family as well as his openness to exploring the needed addictions services...he is suitable for a community disposition. Though one of his greatest strengths is that he would not wilfully cause harm to others when sober, he will need continued assistance in dealing with substance abuse and the factors that have led him to utilize alcohol as a coping technique when he becomes overwhelmed or enters into social (sic) unknown situations.” Position of the Parties [ 20 ] The Crown submits that the paramount sentencing objectives for these offences are denunciation and deterrence.

Mindful of the sentencing range for the offence of impaired causing bodily harm, he suggests that a two year custodial sentence is appropriate given the significant injuries to the victims and the cavalier attitude of the offender at the time of the offence. As for the failure to attend court, he submits that a one day custodial sentence, noting the five day pre-sentence custody, is appropriate. [ 21 ] Defence counsel is asking for a ninety day intermittent sentence with three years of supervised probation. Though he

recognizes the sentencing objectives for impaired driving offences, he submits that the sentence must also take into account the sentencing principles of Gladue and parity. No submissions were made with respect to the failure to attend court. Sentencing Principles and Case Law [ 22 ] The purpose, objectives, and principles of sentencing are set out in s. 718 and following of the Criminal Code .

When dealing with impaired driving offences, the sentencing objectives of denunciation and deterrence are generally emphasized given the harm they cause to society but as well, and as recently pointed out by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 , to convey society’s condemnation, as such offences are ones that might be committed by ordinarily law abiding people. ( Lacasse , at para. 5 ) [ 23 ] Driving over 80 mg% causing bodily harm is an indictable offence with a mandatory minimum $1000 fine for a first offence.

Despite the legislative availability of a fine or other non-incarceratory sentence, courts generally impose custodial sentences for this type of offence. (See: R. v. Henderson , 2012 MBCA 9 , at para. 40 ). The recommended range of custodial sentence, previously three to eighteen months, was recently increased to six to 24 months. (See: R. v.

Smoke , 2014 MBCA 91 , at para. 51 ) [ 24 ] Though sentencing ranges are of great assistance to courts, notably because they assist in ensuring parity of sentences, the Supreme Court of Canada in Lacasse reminded us that sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past which serve in any given case as a guide for the application of all the relevant principles and objectives.

They should not be considered “averages”, let alone straight-jackets, but should be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. ( Lacasse , at para. 57 .) As such, a judge can impose a sentence outside of a sentencing range, so long as the sentence is in accordance with the principles and objectives of sentencing. (See: R. v .Mc Cowan (KJ), 2010 MBCA 45 , at para. 11 ) [ 25 ] In determining a fit and appropriate sentence, a sentencing court is to be guided by the fundamental principle of proportionality, meaning that the sentence has to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

To be proportionate, the sentence not only needs to be individualized in this manner, including consideration of Gladue principles, it also needs to be reconciled with parity, keeping in mind that parity is secondary to proportionality. ( Lacasse , at para. 53-54 ) [ 26 ] In reviewing impaired causing bodily harm case law, it is important to remember its chronological evolution and elevation, mindful that the increase in the minimum and maximum sentences for the offences demonstrates that Parliament has intended for them to be punished more harshly than in the past, emphasizing, once again, the paramount objectives of denunciation and deterrence. [ 27 ] The Crown provided the case of R. v.

Clements , 2013 MBPC 69 , for its review of the case law, acknowledging that it was not factually similar. Defence counsel relies on the case of R. v. Gomez , 2013 MBQB 43 , which is referred to in Clements . Both decisions were decided prior to the Manitoba Court of Appeal decisions of Smoke , supra, and R. v.

Huska , 2014 MBCA 114 . [ 28 ] Clements dealt with the case of an accused of unknown age with a prior dated record for impaired driving and drive disqualified who was pending on related charges both before and after the offence before the court, as well as breach charges for failing to abstain from the consumption of alcohol and driving a motor vehicle. On the date of the offence, the accused was driving erratically and cut off another vehicle, causing it to turn 90 degrees and mount the boulevard. The driver of the vehicle and two young passengers suffered bruising and soft tissue injuries.

The accused fled the scene of the collision but was later found by police. His blood alcohol readings were 260 mg%. The court noted mitigating factors of his guilty plea, gainful employment, supportive family and his rehabilitative attempts while in custody to address his substance abuse. No Gladue factors were present. Weighing all factors, the court imposed a sentence of one year of custody followed by eighteen months of supervised probation. [ 29 ] In R. v. Mosher , 2012 MBPC 24 , a 20 year old accused, with no prior record, drove through a red light at high speed, T-boning a police cruiser.

One officer suffered soft tissue injuries to his shoulder and side of his neck, as well as a separated shoulder. He missed three days of work and had continuing difficulties sleeping. The other officer received a blow to his head, resulting in soreness to the head, neck and back. He had headaches requiring T3’s. He missed one week of work. The accused’s blood alcohol readings were 130 mg%. He came from a good family, was employed part-time and pursing post-secondary education. Since the incident, he had ceased consuming alcohol. No Gladue factors were present.

The sentencing judge imposed a forty-five day intermittent sentence and one year of probation, together with restitution. [ 30 ] In R. v. Gomez , 2013 MBQB 43 , a 22 year old accused, with no prior record, hit a hydro pole, causing injuries to several of his five passengers, including a broken wrist, knee injury, and a fractured vertebrae, causing the victim to miss over three months of employment and return home to live with her parents. Another victim suffered a broken arm which never healed properly. She too was off work for an extended period of time.

The other victims suffered soft tissue injuries and bruising. The court noted that the road conditions were slippery and there was no indication that Gomez was driving erratically. The accused remained at the scene of the collision and was cooperative. His blood alcohol readings were 180 mg%. The accused had immigrated from a country torn by civil war. He had a supportive family and a good upbringing. He was gainfully employed with the hope of pursuing a post-secondary education. The pre-sentence report tendered at sentencing, assessed him as a low risk to re-offend. No Gladue factors were present.

The court imposed a three month intermittent sentence together with a $1500 fine. [ 31 ] R. v. Gill , 2013 BCPC 245 , is a factually similar case to the one at bar, and one that considered Gomez . In that case, the 30 year old accused drove the wrong way into on-coming traffic, T-boning the victim and her daughter. The damage to both vehicles was significant. The victim suffered a fractured rib, lacerations to her spleen and liver, soreness to her knees, whiplash and a broken pelvis, which required surgery. She missed five months of work and required ongoing physiotherapy to help manage her pain.

The injuries were described as significant with likely long-term effects. Her teenage daughter believed her mother to be dead as she had to crawl over her to get out. The daughter suffered emotionally, later struggling to learn to drive. In addition, the victim’s son, who had been driving behind, witnessed the collision, causing him trauma and anxiety. Upon impact, the accused left his vehicle and began walking away. Blood alcohol testing put his readings at 180 mg%. The accused had no prior record. He was married with one child. He immigrated to Canada from India in 2009.

His upbringing was described as difficult, given the generational alcoholism in his family. The accused had stopped drinking nine months before the sentencing though he had not undertaken any specific programming. No Gladue factors were

present. The court imposed a ninety day intermittent sentence and a three year period of supervised probation together with forty hours of community supervision. [ 32 ] Smoke, supra , which post-dates these cases, dealt with an Aboriginal accused who drove upwards of 100 kmph through Winnipeg, with five passengers. Despite his passengers telling him to slow down, he continued to drive at high speeds, proceeding through five red lights. The accused ultimately collided with an SUV that impacted with a pedestrian who died.

The accused fled the scene and was not arrested until two days later, at which time the accused was overheard telling his brother to tell the passengers to remain silent. In addition to the death of the pedestrian, the driver of the SUV and two passengers were injured. The exact nature of these injuries is unclear but the trial decision notes that the driver of the SUV was hospitalized overnight. He was off work for one month and required physiotherapy. As for the passengers, one suffered a concussion, as well as spinal and rib injuries.

At the time of the offence, the accused was 18 years old with a prior limited and unrelated youth record. He was novice driver with a zero alcohol requirement. He had significant Gladue factors and had developed a drug and alcohol addiction, which were significant underlying causes which lead him to commit the offences.

In addition to a 4½ year sentence for the impaired causing death, and a consecutive one year sentence for the failure to remain at the scene of the accident, the Court of Appeal substituted a twenty month concurrent sentence for the two impaired causing bodily harm offences. [ 33 ] Huska, supra, is a case decided after Smoke . In that case the 31 year old female accused, with significant Gladue factors, and a blood alcohol level between 196 – 228 mg%, drove 130 kmph in an 80 kmph zone. She was driving erratically and swerving into oncoming traffic despite her passenger’s pleas to slow down.

She ultimately lost control of her vehicle which rolled, causing her passenger to suffer extensive serious injuries, including a broken leg, four fractured ribs and a cut to her wrist that needed to be stapled to close the wound. As there was no victim impact statement, the sentencing judge considered the injuries healed but found them to be at the higher end of the spectrum. The accused suffered life threatening injuries. She came before the court with a dated criminal record for breaching court orders.

The sentencing judge noted that the accused had not sought help for substance abuse problems and had continued to abuse alcohol and cocaine since the offence. She was sentenced to a period of six months of incarceration and eighteen months of supervised probation. The Court of Appeal upheld the sentence. It noted that although the sentencing judge afforded less weight to the accused’s Gladue factors after considering all of the aggravating factors, the sentence imposed was within the range and not otherwise unfit. Analysis [ 34 ] The circumstances of this particular case are concerning.

It is clear that the three victims remain physically and emotionally traumatized by the collision. It has affected their sense of mortality at an age when one does not often contemplate death. [ 35 ] Unfortunately, the Court has no information about how long Anderson had been driving, where he had come from, or how it was he managed to end up driving northbound in the southbound lane of the Perimeter Highway at that location.

The only information provided to the Court is that Anderson was travelling close to the speed limit and then applied the brakes one second before impact, thereby reducing his speed. [ 36 ] The jokes and “high 5’s” to the paramedics after the collision are concerning as they suggest a degree of callousness or flippancy, but it is behaviour which is at odds with his general presentation. On the night of the collision Anderson stopped his vehicle and inquired as to the well-being of the passengers, he was cooperative and volunteered that he had consumed alcohol.

Since the collision, he has shown a great deal of remorse, expressing his shame and regret. In the end, given that the Court does not have any information as to what Anderson was saying when he was making jokes and ‘high-fiving’ the paramedics, as well his high blood alcohol readings, and the clear dichotomy between this behaviour and his general presentation, the Court has not found it to be an aggravating factor. [ 37 ] It is clear to the Court that Anderson has tried very hard to lead a pro-social life despite the generational challenges he and his family have faced.

Through schooling and employment, he has tried to better his situation in life. [ 38 ] He and his wife have attempted to provide a stable home for their three young children. The thought of incarceration is concerning to them both because of the impact it would have on Anderson’s family. His move to Winnipeg from Ebb and Flow gained him steady full-time employment, but it is clear from the pre-sentence report that the family had financial constraints such that they could not afford to immediately move to Winnipeg together in September 2013.

Since that time, the family has been reunited, allowing the children to attend school here. Anderson’s biggest worry about incarceration is the loss of income to his family, which would require them to move back to the reserve, away from the resources Winnipeg provides. [ 39 ] Anderson’s family appears to be very important to him. The pre-sentence report notes that it was as a result of being away from them and their support that he began drinking on pay days. Although Anderson had consumed alcohol previously, it was not noted to be an issue for him.

Given the timing of his move to Winnipeg and the date of the offence, Anderson’s drinking to deal with his loneliness appears to have started at about that time, such that it does not appear to have been a long standing issue prior to the offence. [ 40 ] The Court was not provided with any evidence as to Anderson’s alcohol consumption post offence, but this Court infers that his use of alcohol continued given his and his wife’s comments to the pre-sentence report writer that he had not listened to her that his drinking was becoming a problem and that he was open to counselling for it.

The use of alcohol as a coping mechanism is also the criminogenic area that the pre-sentence report writer identified as needing to be addressed. As noted previously, alcohol abuse is a generational problem for Anderson’s family. [ 41 ] Connected to Anderson’s alcohol use, is his difficulty identifying his underlying issues and communicating them, though he appears to have began rehabilitation in this regard. It is noteworthy that Anderson’s initial reaction to these charges was to ignore the severity and consequences of his offending behaviour.

This avoidant behaviour has seemingly changed since October 2015, when he was detained. His change in attitude and his participation in programming suggest, mindful of both the specific and general systemic issues Anderson has faced, that rehabilitation is a real possibility. [ 42 ] The sentencing of Aboriginal offenders continues to receive a great deal of commentary in the courts. The Supreme Court of

Canada in R. v. Ipeelee, 2012 SCC 13 noted, with dismay, that despite legislative amendments in 1996 and its decision in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the rate of incarceration of Aboriginal offenders has continued to increase. It also notedthat regardless of the offence, Gladue principles must always be considered, failing which the sentence will be unfit. In other words,even for offences where denunciation and deterrence are emphasized, courts must still apply Gladue: 78 The interaction between s. 718.2(

e) and 718.2(b) -- the parity principle -- merits specific attention.

Section 718.2(

b) states that "asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".Similarity, however, is sometimes an elusory concept. As J.-P. Brodeur describes ("On the Sentencing of Aboriginal Offenders: AReaction to Stenning and Roberts" (2002), 65 Sask. L.

Rev. 45, at p. 49): "[H]igh unemployment" has a different meaning in the context of an Aboriginal reservation where there are simply no job opportunitiesand in an urban context where the White majority exclude Blacks from segments of the labour-market; "substance abuse" is not the samewhen it refers to young men smoking crack cocaine and to kids committing suicide by sniffing gasoline; "loneliness" is not experiencedin a similar way in bush reservations and urban ghettoes. 79 In practice, similarity is a matter of degree.

No two offenders will come before the courts with the same background andexperiences, having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparitybetween sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders,those sanctions will be justified based on their unique circumstances -- circumstances which are rationally related to the sentencingprocess. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e).As Professor Quigley cautions (at p. 286): Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail.

It also prevents us from re-evaluating thevalue of our aims of sentencing and their efficacy. It is true that on the surface imposing the same penalty for the nearly identical offence is only fair. That might be closer to the truth in asociety that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diverse society, thereis a differential impact from the same treatment. Indeed, that has been recognized in the jurisprudence on equality rights under theCharter.

Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity. (See also: R. v.

Peters, 2015 MBCA 119) [43] In this case, considering the aggravating circumstances (statutorily aggravating blood alcohol readings; driving the wrong way;open liquor; number of victims; seriousness of the injuries) and the mitigating circumstances (lack of prior or subsequent criminalrecord; gainfully employed; married with a young family and supportive family; efforts at and a willingness to engage in rehabilitation;systemic Gladue factors, some of which are specifically related to alcohol abuse; applied the brakes; remained at the scene of theaccident; cooperative; guilty plea; remorse) and mindful of the sentencing principles and objectives, this Court finds that the appropriatesentence is one that balances denunciation and deterrence, but also rehabilitation, focussing not only on Anderson’s abuse of alcohol, butalso on his pro-social commitment to his employment and his family. [44] Considering the foregoing, and taking into account the time he spent in custody, this Court sentences Mr.

Anderson as follows: With respect to the failure to appear, a fine of $500, together with the 30% victim surcharge and costs for a total of $652, payable withintwo years; For the impaired causing bodily harm, a 90 day intermittent sentence, followed by a period of 3 years of supervised probation with thefollowing conditions: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so; 3. Advise the court or probation officer before you change your name or address and promptly notify if you change employment oroccupation; 4.

Report to a probation officer within two working days of today and thereafter as directed; 5. Attend, participate and complete all assessments, counselling and programming as directed, including but not limited to substanceabuse treatment through the Native Addictions Council of Manitoba, and the Culturally Appropriate Program, as directed; 6. Complete 100 hours of community service work within the first two years of your probation; 7.

No contact or communication with the victims except for the purpose of providing a letter of apology through and with theassistance of the probation officer. [45] There is also the $202 surcharge and costs, payable within two years, a two year driving prohibition and a 10 year s. 109Criminal Code weapons prohibition. There is also a secondary designated DNA Order to be completed within 30 days.

Original Signed by Judge Lee Ann Martin