R. v. Carleton, 2012 MBPC 54

CITATION: R. v. Carleton , 2012 MBPC 54 Date: 2012 07 27 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Jocelyne Ritchot ) for the Crown ) and ) ) ) JARRETT KYLE CARLETON ) Hymie Weinstein, Q.C. ) for the Accused ) ) ) ) Reasons for Decision delivered: ) July 27, 2012 M. J. SMITH P.J. INTRODUCTION [ 1 ] Joanna Elizabeth Storm was only 23 years of age when she was killed while crossing the street in a pedestrian corridor on Henderson Highway in Winnipeg.

She was a joyful young woman, a gifted musician, a bilingual award winning Royal Canadian Navy Cadet, whose special capacity for compassion and empathy, and commitment to equality, touched the lives of those she met. Her life was cut short before she could live out her obvious great potential, resulting in a loss to our community that is immeasurable. [ 2 ] Understandably, her family has been absolutely devastated by this tragic loss. Family members attended the sentencing hearing, some travelling from British Columbia.

Her mother, Janet Taylor, with great courage and strength, read a victim impact statement that was both an eloquent tribute to her daughter’s life and a raw, moving and painful description of the impact of her death on Ms Taylor, on her husband (Joanna’s stepfather), on Joanna’s grandmother, and on Joanna’s two brothers and her step-sister. [ 3 ] Thankfully, Joanna Storm had lived her life to the fullest before it was cut so terribly short by the actions of a young 18 year old driver, Jarrett Kyle Carleton (Carleton). [ 4 ] There is nothing the justice system can do to make up for such a terrible loss.

Certainly, every avenue of counseling should be made available to the family of Joanna Storm to help them cope with their pain. My sense is that the young woman they have lost was such a joyful, vibrant, and loving individual that she would be distressed if their grief continued to overwhelm them to the point that their days were full only of pain. I hope the point in time where they can move from grief to celebrating her life and affirming her values is not too far distant.

On behalf of the community, I am so sorry that this tragedy befell Ms Storm and her family. [ 5 ] In sentencing Carleton for his guilty plea to dangerous driving causing her death, I have to be guided solely by the sentencing principles in the Criminal Code , and the case law that has shed light on their meaning in this context. Similar cases must be given careful consideration to determine a fair sentence. [ 6 ] What is the appropriate sentence? Should Mr. Carleton be sent to prison for a period of up to two years, as the Crown argues,

or should he be given a community based disposition, as his lawyer submits? That is the issue I must decide. CIRCUMSTANCES OF THE OFFENCE [ 7 ] When the incident happened, around 1:00 p.m. on April 13, 2011, Carleton, who lived in a rural community outside the city but was attending high school in Winnipeg, was returning to his school for afternoon classes, driving his mother’s vehicle.

He had driven a friend to a body shop to pick up his car, and the two drivers were headed back to their high school, driving more or less in tandem on the same route. [ 8 ] Approaching the pedestrian corridor, Carleton was in the left lane, next to the centre of the road. The overhead pedestrian lights were flashing. The Crown accepts that Carleton did not see the flashing lights. [ 9 ] There were cars stopped in the next two lanes to his right. Carleton assumed that the cars in the far right lane were stopped because they were backed up waiting to turn into the busy Sobeys grocery store lot located nearby.

What his thought process was about the middle lane of stopped cars – which included his friend’s car – is not clear. In fact, both lanes were stopped because Joanna Storm was crossing in the pedestrian corridor. [ 10 ] Carleton did not think or realize there was or could be a pedestrian in the corridor. He drove by the stopped car of his friend. Just as he drove into the corridor, Ms Storm stepped into the lane he occupied. The right front passenger side of his vehicle hit her, causing fatal injuries. She died later that day. [ 11 ] Obviously every driver must approach every pedestrian corridor on full alert.

Passing cars in the lead up to the corridor and entering that corridor when lights are flashing is an action that no driver is ever entitled to undertake. While not every driver error resulting in a fatality is properly characterized as criminal, because of the circumstances present here, Carleton’s action and lack of attention to the circumstances requiring special care by all drivers, makes his conduct criminal. [ 12 ] A serious driving error, made in mere seconds, difficult to fathom, has lead to the loss of Ms Storm’s life and a criminal conviction for Carleton.

There is no basis for concluding that Carleton intentionally decided to risk anyone’s life when he made the fateful error. [ 13 ] From the outset Carleton has wanted to plead guilty and accept responsibility. From the outset he has wanted to express his sincere remorse and condolences to Ms Storm’s family.

The Crown fairly acknowledged that Carleton bears no responsibility for the fact that it has taken over a year to conclude these proceedings. [ 14 ] Accident reconstruction experts have substantiated the fact that at the time Carleton’s vehicle collided with Ms Storm, he was not travelling at an excessive speed – his speed was about 63 kph in a 60 kph zone. He was not racing anyone. He had not consumed any alcohol whatsoever.

He remained at the scene and co-operated with police so a complete investigation could be done. [ 15 ] The Crown argued that there was evidence of egregious driving prior to the incident that must be considered in assessing Carleton’s moral blameworthiness and determining a proportionate penalty. [ 16 ] Both counsel were content to rely on the submissions made about the prior driving, allowing the court to make the appropriate findings and assess the character of the driving. [ 17 ] Witness accounts indicate that Carleton’s car and that driven by his friend were speeding up, slowing down and changing lanes frequently prior to the collision.

Carleton admits he changed lanes about five times preceding the accident, but it is clear he did not change lanes as he approached the pedestrian corridor. One witness felt the car was speeding as it changed lanes to pass her in a “slingshot” fashion. She believed it almost hit her rear bumper. This witness said the two of them were driving “carelessly, for sure”. She described the lane changes as “swerving”. Others noted the lane changes and described the driving as “erratic”. Both Carleton and his friend deny that they were racing at the time or that high rates of speed were involved.

Carleton acknowledged going “somewhat” faster than the flow of traffic. Witnesses varied, not surprisingly, on the estimates of speed. [ 18 ] The findings of the Accident Reconstructionist support the contention that excessive speed was not a factor at the time of the collision. The expert estimated the speed at between 57 and 67 kph using one formula and 63 kph using another. The speed limit is 60 kph. I note that on busy thoroughfares in Winnipeg, traffic generally moves at or often somewhat above posted maximums, unless at peak rush hours.

At one point en route back to the school, on Main Street – not Henderson Highway – Carleton admitted to going 70 kph in a 60 kph zone. [ 19 ] The Crown conceded that based on the evidence available, this was not a case of excessive speed.

Rather, the Crown contended it was the manner of driving – especially the frequent and aggressive lane changes described by the witnesses – that constituted egregious driving. [ 20 ] The Crown noted that when interviewed by police the day of the collision, Carleton agreed with a police suggestion that there was a bit of a “cat and mouse” pattern of driving with his friend as they drove back to the school.

One witness observed what he described as “cat and mouse” behaviour 25 blocks before the collision. [ 21 ] I asked counsel what could be taken from these facts when it seems I must accept that no racing or excessive speeds was established. To me the cat and mouse analogy conjures up chasing each other. But the facts are also consistent with two young drivers keeping pace as they drove along to a common destination. [ 22 ] This is what was said in the police interview of Carleton about the “cat and mouse”: Q: Were you guys racing each other?

A: No. Q: You're not weaving in and out or racing each other? A: We weren't racing each other, no. Q: Were you kind of playing cat and mouse kind of or – A: No, but – Q: It's a long way from Selkirk all the way to that intersection. A: Yeah. Q: -- to be driving right together? A: Yeah. Well, I guess you could maybe like call cat and mouse type thing but like we weren't doing like stupid stuff. Like we weren't like reaching like high rates of speeds... [ 23 ] As noted, Carleton conceded, that he made five lane changes prior to the accident in the stretch of driving on Henderson Highway.

Yet it is also clear and accepted by the Crown that there was no lane change before the fatal collision. Carleton was in the left lane. [ 24 ] Carleton was very co-operative with police and self-critical of his driving generally, saying he forgets to use signals when changing lanes and changes lanes aggressively. He described himself as a tunnel vision driver, making last minute decisions without focusing on his surroundings.

Despite these general admissions, I must sentence him on the conduct proven at or shortly before the time of collision, and not increase the penalty because of his honesty and self-criticism following the accident. CIRCUMSTANCES OF THE OFFENDER [ 25 ] Carleton was born March 24, 1993. The offence occurred on April 13, 2011, three weeks past his eighteenth birthday. Given his age, he was a relatively inexperienced driver, no doubt operating under the graduated licensing scheme. [ 26 ] He comes before the court with no prior criminal record of any sort.

He has one entry on his driving record for an offence of speeding. For that offence, in August of 2010, he received a $200 fine for going 80 kph in a 60 kph zone. [ 27 ] A comprehensive and positive Pre-Sentence Report (PSR) was prepared and filed with the Court. The report notes that Carleton grew up in a stable and loving home, raised by both parents, along with three siblings. He still resides in the family home, just outside Winnipeg, with his parents. He has a good relationship of some duration with a young woman who is attending university.

The large majority of his friends are law abiding good young adult members of the community. A small number of his friends smoke illegal drugs. [ 28 ] Carleton does not use any illicit drugs and at present rarely drinks alcohol. Shortly after the accident he began drinking more frequently, apparently as a coping mechanism, but recognized this as harmful and discontinued the pattern. [ 29 ] In discussions with the Probation Officer, he accepted full responsibility for the accident stating: “The laws are there to help and protect people. I want to live with the rules of society.

These charges are fair as at the point of the accident, I broke the law by going though the cross walk”. He further commented, “I don’t remember seeing the lights of the crosswalk but all the witnesses say they were on. I am responsible for not paying attention and being aware. The charges fit for what I did”. The subject wants to become a positive member of the community. “I want to be a productive part of society. I have no issues with any part of this”. [ 30 ] The subject’s father told the Probation Officer: “He is a good kid. He always pulled over to talk on his cell phone.

I don’t want him to go down as a reckless driver. That is not him.” [ 31 ] A family friend who has known Carleton for a long time, and views him as another son, told the Probation Officer that he had spoken to the subject specifically about his attitude toward the offence and his remorse, commenting “He does not look it as just bad luck.

He understands what he has done is very serious and someone has lost a life.” He expressed the opinion to the Probation Officer that “[Carleton] is not one to talk and believes the stress of the whole situation is crushing him.” He added “He is trying to do things to make things right but there is nothing he can do.” [ 32 ] Carleton told the Probation Officer that he has experienced high anxiety levels, depression, has withdrawn from others, has low self-esteem and interrupted sleep patterns as a result of the current offence.

He has not seen any counselors or health care professionals, and has not really opened up emotionally to anyone about the offence. His parents corroborate this picture. His father describes how his son has woken up with nightmares of seeing the victim’s face. [ 33 ] As far as employment is concerned, the PSR documents a very impressive work ethic and history for such a young adult. He currently works at the Royal Fork Buffet, employment he has held for three years, part-time and summers during high school and full time since graduating in June of 2011. He has advanced in various positions while working there.

He supplements his income with a second job on an on call basis. As a younger teen, he also worked during prior summers on construction projects. [ 34 ] He has a long standing ambition to become an electrician. He put on hold his plans to begin college training immediately after grade twelve to deal with the aftermath of the offence. He has been accepted into the Electrical Apprenticeship program at Red River College. [ 35 ] The Probation Officer (PO) concluded that Carleton is a “low” risk to reoffend. In fact the author indicated that there are “no”

significant risk factors for Carleton, nor any criminally based need areas for probation to address. The PO identified the subject’s emotional distress with the accident as noteworthy and well documented with collateral contacts. He concluded: ...He also has a great deal of remorse for the circumstances and concern for the victims’ family for which he is before the Court.

The subject at no time attempted to minimize, deny or explain away his responsibility in this matter. ... [ 36 ] In addition, numerous letters of reference were filed from employers, co-workers, officials from his former high school, family members and family friends. [ 37 ] The picture that is presented is of a young man who struggled in high school at times, but with determination graduated. He has earned the respect of employers as a conscientious, reliable and responsible young man in the work force.

To his co-workers, family and friends, he has been described as a caring, kind and decent young man, who was often quieter and more responsible than peers his age, but also having a sense of humour and prior to the accident, a bright spirit. [ 38 ] Many of the reference letters described the remorse Carleton feels and the personal toll that has resulted from Ms Storm’s death. For a time he became extremely withdrawn and to some extent turned to alcohol. He started smoking again. He could no longer fall asleep at night until the early hours of the morning; still to this day he has problems sleeping.

He was described as being “not himself”. His grades and attendance at high school suffered after the accident. He graduated in June of 2011, but as noted placed his plans to go to Red River College on hold until he deals with his criminal charges, recognizing that he may go to jail. Some notice he has become more subdued and lost much of his youthful spirit and enthusiasm. At present, he rarely, if ever, drinks alcohol.

Some pointed out that he is even more responsible and thinks twice about all actions. [ 39 ] His mother attests that her son has become tortured over the accident; that he thinks about it and Ms Storm’s passing every day. He never wanted to go to trial - for the sake of Ms. Storm’s family and his own. He has expressed anger with himself and continual remorse.

He continues to show that he is under great stress. [ 40 ] Aside from his involvement in this terrible offence, Carleton is a responsible, kind, and decent young man who is, quite appropriately, all but overcome with remorse and personal guilt over the incident. His lawyer described him as being consumed “in his own personal hell”. From what I could observe from my vantage point in the courtroom, Carleton’s body language and tears – especially while listening to Ms Storm’s mother’s account of the pain of that family’s loss – bore witness to the truth of that assertion by his counsel.

So too did his own heartfelt letter of apology, read by his counsel, to Ms Taylor and her family. The letter states in part: … There hasn’t been a day that has passed in which I don’t flashback to the mere second of the accident. It haunts me and I struggle to find forgiveness within anybody. After all that has happened I just hope that you attempt to avoid resentment in your hearts for I don’t know how to compensate for my actions. As remorseful as I am I want to say I am sorry. After everything that has happened I have heard that the pain will only ease through support, love and forgiveness.

I have not found the strength to forgive myself as the only object of responsibility upon this tragedy. I would never expect any of Joanna’s loved ones to offer me their forgiveness but I pray that someday it will be found in their hearts to forgive me for my mistakes. I hope more than anything that God will give me the strength to forgive myself although through all the pain and regret, I do not believe this day will come for me.

DISCUSSION [ 41 ] Before reviewing sentencing principles and setting out what I have concluded is an appropriate sentence, I will examine the essential elements of the offence of dangerous driving. [ 42 ] Next I will consider general sentencing principles along with the sentencing considerations unique to this offence, and then refer to other cases and sentences for dangerous driving.

Sentences for this offence range from suspended sentences to terms of imprisonment in a penitentiary, depending, fundamentally on the moral blameworthiness of the offenders’ conduct, his prior record, and the number of fatalities in the accidents. DANGEROUS DRIVING – THE ELEMENTS OF THE OFFENCE [ 43 ] Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. [ 44 ] Recently, in R. v.

Roy, 2012 SCC 26 , the Supreme Court of Canada considered the offence of dangerous driving causing death. [ 45 ] As Cromwell J. observed at para. 1, as with all criminal offences there are two necessary elements. Prohibited conduct – the fact of operating a vehicle in a dangerous manner that causes death – and a required degree of fault. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. [ 46 ] The actus reus or prohibited conduct for dangerous driving is set out in s. 249(1)(

a) of the Code , that is, driving "in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place." [ 47 ] The mens rea or minimum fault requirement involves a marked departure from the standard of care that a reasonable person would observe in all the circumstances. Simple carelessness, the Court said, even though it results in death, is generally not criminal.

While a mere departure from the standard of care a reasonable person would observe justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence. Thus, drivers who depart from a reasonable standard of care may be liable civilly (unless comprehensive no-fault insurance schemes are in effect) or they may be found guilty of regulatory offences, such as careless or imprudent driving, under provincial Highway Traffic laws. [ 48 ] The Supreme Court in R. v. Roy cautioned that the net should not be drawn too widely in the dangerous driving context.

Not all instances of negligent or improper driving or driver error, even those causing death, will be sufficiently morally blameworthy to justify

the stigma of a criminal conviction (para. 2). [49] For purposes of determining guilt or innocence in dangerous driving cases, a modified objective standard is used. Evidence ofthe accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity toappreciate or to avoid the risk (para. 40, Beatty, and para. 38 Roy).

Of course, such attributes may be considered in mitigation. [50] There is a related offence, causing death by criminal negligence that, in the motor vehicle context, involves driving conduct thatshows wanton or reckless disregard for the lives or safety of other persons. (Code, s. 219 and 220) The blameworthy state of mind forthat offence requires evidence of a reckless disregard, or a marked and substantial departure from the standard of care that a reasonableperson would observe in the circumstances. [51] In Roy, the Supreme Court found the trial judge had made a serious legal error in relation to the fault element.

The judge foundthat when Roy pulled his motor home out from a stop sign, with poor road conditions and visibility diminished by fog, into the path of anoncoming tractor-trailer, this was objectively dangerous. The judge then inferred from this alone that the conduct displayed a markeddeparture from the standard of care expected of a reasonable person in the circumstances. [52] The tractor–trailer had insufficient time to stop. In the collision that resulted, Roy's passenger was killed.

Roy had no memoryof the crash or surrounding events. [53] Ultimately the Supreme Court held that the conduct was equally consistent with a simple driver error of misjudging when itwas safe to enter the intersection. That could not be considered a marked departure from the appropriate standard of care. [54] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, wasdangerous to the public in all of the circumstances.

In this case the action of driving through a pedestrian corridor when the lights areflashing and when other drivers are stopped in adjacent lanes obviously created a serious risk to the public.

Given the purpose ofpedestrian corridors and the vulnerability of pedestrians to serious injury from motor vehicles, the conduct was dangerous to the publicand serious enough to constitute the prohibited act, without considering the tragic consequence of that driving conduct. [55] Turning to the mens rea, a reasonable person would have foreseen the risk of entering a pedestrian corridor when the lights areflashing and when cars in adjacent lanes are stopped at the corridor. I accept that Carleton did not in fact foresee that risk.

He did not seethe lights, and did not appreciate the significance of the stopped cars. But in this context the accused has properly admitted through hisguilty plea that his failure to do so was a marked departure from the standard of care expected of a reasonable person in hiscircumstances. [56] I felt it important to delve into the elements of the offence carefully, despite the guilty plea. In effect, the Crown is asking meto sentence Carleton based on the position that the driving that preceded the crash was also “criminally dangerous driving”, elevating theoverall moral blameworthiness significantly.

There were a number of aggressive lane changes which departed from the standard of careexpected of a reasonably prudent driver prior to the collision. However, I cannot find that this pre-collision driving constituted a markeddeparture. There was no racing established. There was no element of excessive speeding involved. [57] The pre-collision driving was certainly a departure from that expected of a reasonably prudent driver. Carleton could havefaced imprudent driving charges under the Highway Traffic Act for the driving described by witnesses.

However, but for the act ofentering the pedestrian corridor in the context that existed, I find Carleton’s driving and state of mind was not criminally dangerous. [58] In the same vein, I cannot characterize the pre-collision driving as “egregious” as the Crown asserts; instead it was imprudent.The pre-collision driving here must be contrasted with the cases of Eckert and Wallace, infra, where the Court of Appeal described thedriving in these cases as “egregious”.

As will be seen, the driving in those cases presented a much greater risk to public safety thanCarleton’s driving in the 25 blocks preceding the crash. [59] I conclude that the dangerous driving here constituted a very brief, albeit absolutely tragic, period of inattention or lack of focusby this young driver, lasting mere seconds. Having regard to all the circumstances, driving into that corridor was clearly dangerous.

Inthis context, given the red flag of the stopped cars as well as the flashing lights, it is not difficult to infer that the action went beyondsimple driver error and constituted a marked departure from the standard expected of a reasonable driver, as Carleton himself hasaccepted through his guilty plea. [60] The improper driving preceding the collision does nonetheless constitute an aggravating factor which I must consider indetermining his sentence. That improper mode of driving may have contributed to a mindset that was responsible for his inattention atthe pedestrian corridor.

SENTENCING PRINCIPLES: DANGEROUS DRIVING [61] The sentencing principles and objectives are set out in s. 718 – 718.2 of the Criminal Code and are well known. [62] The Crown filed three cases for the Court to consider relating to driving offences involving deaths, two from the Ontario Courtof Appeal, R. v. L. (J.) (2000), 17 C.C.C. (3d) 299, and R. v. Lam (2003) (ON CA), 180 C.C.C. (3d) 127 and onefrom the British Columbia Court of Appeal, R. v.

Woodley, (BC CA). [63] Both of the Ontario cases deal with convictions for criminal negligence causing death, a significantly more serious offence thandangerous driving causing death, and because of this are of little direct application. [64] In R. v. L. (J.), however, I note that the Ontario Court of Appeal rejected the trial judge’s conclusion that there was a set rangeof three to seven or eight years for the offence of causing death by criminal negligence. On the contrary, the Appeal Court noted at para.2 that:

... criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases donot demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offencecan be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples ofsuspended sentences. [65] A similar observation surely could be made about the varied potential circumstances of the offence of dangerous drivingcausing death.

As a result, the establishment of a “range” for the offence of dangerous driving is inappropriate.

Further, if suspendedsentences are sometimes appropriate for the offence of criminal negligence causing death, surely they can be appropriate for the lessserious offence of dangerous driving causing death. [66] In that same case, the Ontario Appeal Court noted at para. 3 that sentencing for the offence of criminal negligence causingdeath is “...very much driven by individual factors, especially the blameworthiness of the conduct.” (emphasis mine) Despite the trialjudge’s error in stating a range, the Court upheld the five year sentence imposed in that case, concluding that it was not unreasonable inview of the facts.

The Appeal Court found the blameworthiness to be high and tending toward a conclusion that the accused wasdeliberately endangering life. He was found to be driving at high rates of speed over an extended period of time; he ran three red lights, inthe last of which he crashed into the victim’s car, all the while driving over the legal limit of alcohol consumption. The offender also hada prior criminal adult and youth record. [67] As will be noted shortly, the Manitoba Court of Appeal in R. v.

Eckert, 2006 MBCA 6 made a similar statement about thecritical role of assessing moral blameworthiness in sentencing for the offence of dangerous diving causing death. [68] The second Ontario case filed by the Crown, R. v. Lam, supra, once again rejects the notion that there is a fixed range forsentencing in causing death by criminal negligence, citing R. v. L. (J.), supra, with approval at para. 9-11.

In that case the offender whowas travelling at about 170 kph in a 70 kph zone in “show of speed” with another driver that lasted less than one minute on a busy sixlane highway was found guilty of causing the death by criminal negligence and manslaughter after a jury trial. The victim was a youngmother with preschool children. The offender was 26 years old at the time of the accident and had no record. He was sentenced to twoyears less one day.

The Crown appealed arguing in effect that three years was the minimum appropriate sentence. [69] The Court upheld the sentence, noting the absence of aggravating factors, such as those involving reckless conduct and theconsumption of alcohol, where sentences are generally more severe.

The Court added at para 10: ...In addition to the consumption of alcohol or drugs, courts have also treated multiple deaths, racing, reckless driving for a lengthyperiod of time, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident asaggravating circumstances. [70] Similar aggravating factors have also been considered by courts in dangerous driving cases. These factors elevate moralblameworthiness. [71] In R. v.

Lam, the Court attached a chart of recent cases involving sentencing for both causing death by criminal negligence anddangerous driving to which the Crown drew my attention. For the former, the sentences ranged from suspended sentences and probation,to conditional sentences, to reformatory terms of imprisonment and to varying terms of penitentiary sentences, the highest being eightyears for a death involving alcohol for an offender with several prior convictions for impaired driving.

For dangerous driving cases, thesentences ranged from suspended sentences with probation, to more commonly, conditional sentences of imprisonment to be served inthe community ranging from 15 months to two years less a day, to sentences of imprisonment of 15 months and of two years less a day.It is common ground that conditional sentences of imprisonment are no longer available for this offence as a result of amendments to theCriminal Code that came into effect in December, 2007. [72] The last case filed by the Crown, R. v.

Woodley, deals with a Crown appeal from a sentence of three years for criminalnegligence causing death, two years concurrent for criminal negligence causing bodily harm, and six months concurrent for having careand control while over the legal limit of alcohol. In dealing with the appeal, Seaton J.A. observed at para. 7 that “[c]onvictions fordangerous driving usually results (sic.) in a shorter sentence than those for criminal negligence.” That proposition is undoubtedly correctas is illustrated quite dramatically by the charts attached to the Lam decision, supra.

Justice Seaton went on to observe that his analysiswould be restricted to the criminal negligence cases. The decision is of little assistance because of the differing offences. The Courtultimately allowed the appeal and reduced the sentence on the first two offences to two years less one day. The 26 year old driver hadlittle to eat or little to sleep in the preceding 24 hours to the accident, but had consumed alcohol to the point his reading was .20 (morethan double the legal limit) an hour after the accident.

He was driving his tow truck on a highway back and forth in its lane, eventuallycrossing the lane and colliding almost head on with another vehicle killing the driver, then striking another vehicle and injuring thedriver. He had no record and was remorseful. [73] The defence asked me to consider five Manitoba cases. Two of these cases deal with general principles: R. v. Eckert, 2006MBCA 6 and R. v. Wallace, 2012 MBCA 54. Three other cases were cited in which suspended sentences were imposed for the offence ofdangerous driving causing death: R. v. Manty, 2006 MBCA 25, aff’g 2005 MBQB 55; R. v.

Muthoka, 2011 MBCA 40; and R. v.Demelnyk, not yet reported May 23, 2012 (MBPC). [74] R. v. Eckert is a case that is not factually similar to this one, but as noted above, it does contain clear guidance from our Courtof Appeal on the required approach to sentencing in these cases, reminiscent of the dicta in R. v. Lam, supra. [75] In Eckert, Justice Steel, authoring the judgment of the Court of Appeal opined that in sentencing for dangerous driving, thefacts are crucial and the court must carefully assess the moral blameworthiness involved.

She stated at paragraphs 14-16: 14 The test for mens rea in dangerous driving is an objective one, so that while a conviction will result from any behaviour thatrepresents a marked departure from the norm, the acts giving rise to such a marked departure can encompass a wide range of conduct.See R. v. Hundal, (SCC), [1993] 1 S.C.R. 867.

15 Consequently, in sentencing individuals for dangerous driving offences, the facts become crucial. They can vary in a continuum from a short period of inattention, perhaps a violation of a traffic control signal, through to those that involve significant impairment while knowingly driving unsafe vehicles and prolonged periods of driving at high rates of speed. 16 In passing sentence, the judge must assess the moral blameworthiness involved in each case. It is not sufficient to look only at the tragic consequences when determining the seriousness of a crime.

The function of a court is not to exact revenge, but, in this case, a sentence should express society's denunciation of the conduct involved. Therefore, the nature of the blameworthy conduct that led to the consequences must be considered. [ 76 ] In Eckert , both Crown and defence had agreed that the appropriate sentence was a period of two years less a day but parted company on whether the sentence for the 25 year old offender could be served conditionally. The sentencing judge agreed with defence that the jail sentence could be served in the community.

When the Crown appealed, the defence announced it would consent to the appeal. Nonetheless, the Court of Appeal gave reasons why the decision to allow the sentence to be served conditionally made the sentence unfit. (As noted, conditional sentences are no longer available for this offence.) [ 77 ] Basically the Appeal Court found that the trial judge erred in his assessment of the risk to the community presented by the accused serving his sentence conditionally. He had a driving record, before and even after the offence, that was described as atrocious.

This demonstrated that his extraordinarily reckless driving on the day of the collision was not unique, but reflective of past behaviour. [ 78 ] Steel J.A. set out the facts of Eckert ’s driving in paras. 19 and 20 of her judgment: 19. In the facts of this case, the accused had spent the afternoon at a party at the bar in the Assiniboine Gordon Hotel, located a few miles from where the fatal collision took place. He consumed at least two beers and one tequila shooter during the course of the afternoon. Witnesses testified that as he drove home, he did "wheelies" as he drove down Portage Avenue.

He drove through a red light, maneuvering his motorcycle through pedestrians crossing that intersection on the green light. As he turned off Portage Avenue onto a residential street, he accelerated and narrowly avoided striking a pedestrian, who had to jump out of his way to avoid being struck. 20. Witnesses on Portage Avenue estimated his speed at between 80 to 90 kilometres per hour. On Moray Street, the estimated speed was up to 200 kilometres per hour. A witness sitting in her backyard described the accused as flashing by at a tremendous speed when driving down a back lane.

There are houses on both sides of the back lane and a playground at the next intersection, at Bruce Avenue. The accused drove straight into the victim's vehicle as she proceeded west on Bruce Avenue. The accused's speed at the point of impact was at least 100 kilometres per hour. His helmet struck the vehicle and the raised lettering on his visor stamped the metal on the roof of the victim's car.

The victim died shortly after the accident as a result of multiple traumatic injuries. [ 79 ] Not surprisingly, the Court held that those circumstances were “egregious” and warranted strong denunciation and deterrence that could not be accomplished in a conditional sentence. Steel J.A. noted at para 21: 21 These facts show that the accused drove dangerously over an extended distance. Prior to killing Ms Robertson, the accused on two other occasions narrowly avoided collisions with other pedestrians. His speed and manner of driving on a busy thoroughfare were dangerous and reckless.

Once he got onto residential streets, he drove at extraordinary speeds and with a complete lack of attention to intersections, which made an accident almost inevitable. He sped down a residential back lane and onto a quiet street with an utter lack of regard for any other person who might be using the street. This kind of wilful and egregious behaviour demonstrates a high level of moral blameworthiness and warranted strong denunciation.

To characterize this behaviour, as the sentencing judge did, as simply an "exhibition of youthful exuberance" (at para. 10) is to unduly minimize the 25-year-old accused's disregard for the rules of the road and the safety of others. On facts of this kind, the judge gave inadequate weight to the principles of deterrence and denunciation and the sentence is unfit. [ 80 ] Another case which is helpful in discerning general principles applicable to dangerous driving cases is the recent decision of the Manitoba Court of Appeal in Wallace , supra .

In that case, the Crown appealed the sentencing judge’s decision to impose a conditional sentence on Mr. Wallace, who pled guilty to dangerous driving causing death and refusing to provide a breath sample in relation to the accident which caused the death. He was 28 years of age at the time of the offence. [ 81 ] The Court of Appeal dismissed the appeal. Justice MacInnes, authoring the Court’s decision, referred to Eckert , supra , as well as another decision of the Manitoba Court of Appeal, R. v. Duchominsky , 2003 MBCA 19 .

In Duchominsky , the accused’s appeal was allowed and the sentence of incarceration was allowed to be served in the community. In Wallace , MacInnes J.A. observed at paras. 50- 53 that the overarching requirement in sentencing is proportionality, although denunciation, deterrence and rehabilitation are all important principles: 50 Eckert and Duchominsky are but two examples of dangerous driving causing death offences with catastrophic results to the victim(

s) and to their families. There are many other such cases. The most that can be said for all of them is that they clearly demonstrate that the relevant sentence is wholly dependent on the individual circumstances of the given case to which the principles of sentencing are applied, in particular, the overarching principle of proportionality.

In this case, the sentencing judge demonstrated in his reasons that he was alive to the aggravating circumstances which existed here; namely, alcohol consumption and an accident with tragic consequences not caused by momentary lapse or inattention, but by deliberate egregiously excessive speed. 51 Dangerous driving causing death is an offence where denunciation and deterrence are uppermost concerns, particularly where, as here, aggravating circumstances exist and moral blameworthiness is high. 52 Notwithstanding, however, rehabilitation remains an important principle which must be considered in the imposition of sentence. [ 82 ] The facts in Wallace are set out in paras. 2-9 , as follows:

2 On the night of October 30, 2007, after drinking at a bar in west Winnipeg, the accused and his cousin decided to drive to the cousin's home. Enroute, in separate vehicles, they drove east on Hamilton Avenue. Hamilton Avenue was a residential street with a 50 kilometre per hour speed limit. It had two lanes for eastbound traffic, although the curb lane was also available for parking, and a centre median which divided eastbound from westbound traffic. 3 The accused and his cousin stopped for a stop sign on Hamilton Avenue at the intersection of Chapman Road.

The accused's vehicle was in the curb lane and the cousin's vehicle was in the lane to the accused's left, next to the centre median. The accused spoke to his cousin, saying something like "Come on ... let's go." They both accelerated quickly from the stop sign. After reaching 50 to 60 kilometres per hour, the cousin took his foot off the accelerator. The accused, however, continued to accelerate.

He pulled ahead of his cousin's vehicle and drove from the curb lane into the centre median lane ahead of him. 4 Another motorist had turned on to Hamilton Avenue from Chapman Road just before the accused and his cousin left the stop sign.

She also was driving east on Hamilton Avenue, saw the accused's vehicle coming up fast behind hers and pulled her vehicle onto the median, whereupon the accused drove between her vehicle and cars which were parked facing east in the curb lane of Hamilton Avenue. 5 The accused continued accelerating eastbound approaching the intersection of Cavalier Drive, which was approximately 500 metres east of Chapman Road. His vehicle reached a speed of approximately 138 kilometres per hour. 6 At that time, Theresa Hadley was driving her vehicle north on Cavalier Drive.

The intersection of Hamilton Avenue and Cavalier Drive was controlled by four-way stop signs. Ms Hadley stopped for the stop sign facing her and then drove northerly into the intersection. 7 The accused drove his vehicle through the stop sign facing him colliding with the driver's door of Ms Hadley's vehicle, killing her instantly. The crash data recorder in the accused's vehicle registered the speed of the vehicle at 136 kilometres per hour at the time of the collision. 8 The accused admitted to having had a couple of drinks prior to the accident, but maintained that he was not impaired.

He refused to take a breathalyzer test. The evidence of consumption was imprecise and there was no breathalyzer reading to provide evidence of his blood-alcohol level at the time of the accident. 9 He was extremely remorseful and, through his counsel, acknowledged that there existed a level of moral blameworthiness in respect of the accident sufficient to require a jail sentence. [ 83 ] Later, MacInnes J.A. characterized this driving behaviour as “egregious”, emphasising the following aspects: 28 Ms Hadley was lawfully driving her vehicle on a residential street in Winnipeg.

She stopped for a stop sign and proceeded into an intersection as she was entitled to do. Contrasted with her conduct was the egregious driving conduct of the accused. He chose to accelerate sharply from a stop sign at an intersection approximately 500 metres from the point of the collision. His purpose was to get ahead of his cousin's vehicle.

That in itself was a dangerous manoeuvre, given that there were parked vehicles ahead of him in the lane in which he was travelling, which thus necessitated rapid acceleration to get ahead of his cousin's vehicle and moving from the curb lane into the median lane over a relatively short distance. 29 Having done so, he continued to accelerate rather than slow down. His speed and driving conduct was such that another motorist drove her vehicle from the roadway onto the median out of fear.

The accused continued his rapid pace, driving between that vehicle and parked vehicles as he continued to accelerate, ultimately to a speed of approximately 138 kilometres per hour on a residential street with a speed limit of 50 kilometres per hour. He failed to see the stop sign facing him at the intersection of Cavalier Drive and failed to see Ms Hadley's vehicle at or within the intersection until it was too late to stop or avoid the collision.

Indeed, the facts are that he did not apply his brakes until approximately one-half second before impact and his speed at impact was 136 kilometres per hour. [ 84 ] MacInnes J.A. compared the facts in Eckert , and described that driving as even “more egregious” than Mr. Wallace’s. In Wallace , despite the aggravating factors of alcohol consumption and deliberate egregious excessive speed, the court of Appeal upheld the conditional sentence of two years less a day. [ 85 ] The Eckert case thus emphasizes the need, in dangerous driving cases, to consider the facts carefully to assess moral blameworthiness.

Both the Eckert and Wallace cases provide vivid examples of driving conduct properly characterized as “egregious”. With due respect to the Crown’s submission, the driving conduct of Carleton prior to the collision, while imprudent, does not come close to the serious levels of driving misconduct described in either Eckert or Wallace . [ 86 ] Three other cases were cited by the defence as authority for the proposition that a suspended sentence is an appropriate

sentence for dangerous driving causing death, depending on the circumstances of the offence and the offender. [ 87 ] The first such case is R. v. Manty , 2005 MBQB 55 (finding Manty guilty of dangerous driving causing death after a trial on an agreed set of facts), affirmed, 2006 MBCA 25 . The sentencing decision is found in R. v. Manty, [2005] M.J. No. 137 (Q.B.) .

I note that no appeal was taken by the Crown from the sentence imposed by Justice Suche - a two year suspended sentence with probation, including 100 hours of community service, to be directed to public education of driver safety, along with a two year driving prohibition. Manty was convicted of three counts of dangerous driving causing death, and one count of dangerous driving causing bodily harm. [ 88 ] Mr.

Manty filed a sentence appeal along with his unsuccessful conviction appeal but ultimately abandoned the former. ( See 2006 MBCA 25 at para. 1 .) The Crown did not appeal the suspended sentence. [ 89 ] As noted by the Court of Appeal on the conviction appeal, the circumstances of that case were “distressing, and the outcome was devastating.” Three people died; one was injured. The Court of Appeal went on to describe the incident in these words at para. 2: ... The accused, at the time 22 years old with no record, was driving one night on a rural highway on his way from church to bible camp.

The route was one he had followed in the daytime on numerous occasions although never at night. He was not speeding, nor had he been drinking or using drugs. Inexplicably, he missed warning signs, and drove into an intersection through a stop sign which was illuminated by a flashing red light. He struck another vehicle which had entered the intersection at a right angle to his vehicle.

All three passengers in the other vehicle died as a result of the accident, and the driver was seriously injured. ... [ 90 ] I agree with defence that there are some significant parallels between the fact scenario in Manty and this case. [ 91 ] As Suche J. observed in her sentencing decision at paras. 5 and 6: While Mr. Manty’s driving amounted to dangerous driving as is defined in the Criminal Code , none of the aggravating factors that are so often present in cases of dangerous driving are present here. He was not speeding. He was not driving erratically.

He was not driving a vehicle that was poorly or inadequately equipped to be on the road. He had not consumed any alcohol. This is a case of pure inattention and inadvertence: gross negligence of a magnitude that brings it within the definition of dangerous driving. [ 92 ] Much like Manty , inexplicably, Carleton missed the flashing lights activated at the pedestrian corridor and failed to appreciate the significance of the stopped vehicles in the adjacent lanes. Like Manty, he was not driving at an excessive speed. He was not driving a vehicle that was poorly equipped to be on the road.

He had not consumed any alcohol. [ 93 ] There are some differences between the cases. In Manty the consequences of the dangerous driving were even more devastating, in that three young women were killed and one man was injured. Families and friends were left reeling over the death of three loved ones. [ 94 ] Here, there is evidence of imprudent or erratic driving in the blocks prior to the crash, while in Manty the Court specifically noted that there was no erratic driving. [ 95 ] There are also some parallels in the circumstances of the offenders. Manty was also a young driver, but not as young as Carleton.

He was in his twenties, a university student. Like Carleton he had no criminal record and was, by all accounts a decent person. He was described as hard working and dedicated. Justice Suche commented that “he, until this point and except for this incident, would be described as a contributing, reliable young man with promise of a future.” (para. 12) Exactly the same could be said of Carlton. [ 96 ] In terms of differences in offenders, if anything, there are more mitigating features in this case. Carleton’s extreme level of remorse has been well documented.

He is unlikely to ever put his involvement in this crime totally behind him. He and his family have already made a donation in memory of Ms Storm on the anniversary of her death and have stated an intention to continue to do so annually. In addition, Carleton and his family have planted a tree in her memory on their rural property.

Although certainly Manty was entitled to contest the charges as he did, the guilty plea in this case which Carleton indicated was forthcoming right from the outset, shows a complete and unequivocal acceptance of responsibility which is clearly mitigating. [ 97 ] The second case cited by defence involving a suspended sentence is R. v. Muthoka , 2011 MBCA 40 . Ms Muthoka pled guilty to two counts of dangerous driving and was given a two year suspended sentence with probation and 240 hours of community service.

Her ten year driving prohibition initially imposed by the sentencing judge was reduced by the Court of Appeal to one of four years. That was the only aspect of the sentence imposed that was appealed. The Crown did not appeal the suspended sentence. The facts of that case are not as similar to this one as those in Manty . Muthoka was driving her vehicle out of a parkade, up the exit ramp. When she reached the street level, by error she stepped on the gas instead of the brake and suddenly accelerated at a high rate of speed. She panicked, lost control and hit two pedestrians, killing them.

The Court of Appeal found the driving prohibition to be excessive, given the findings – which were not criticized – that the driving in this case fell within the lower range of dangerous driving offences. The Court of Appeal found that the length of the driving prohibition was part of the sentence and needed to be proportional. At para. 10 the Court observed: The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see s. 718.1).

This requires an examination of the accused’s degree of guilt or moral blameworthiness with respect to the offence committed and the harm done to the victim to ensure that the sentence is in line with her “moral culpability, and not greater than it” ( see R. v. Nasogaluak, 2010 SCC 6 (S.C.C.) at para 42 , [2010] 1 S.C.R. 206 (S.C.C.) ). While this court recognizes the tragic results for the victims, their families and their community, the gravity of the offences must be balanced against the accused’s degree of moral blameworthiness, which in this case is low.

In my view, the term of the prohibition, which usually ranges from no prohibition to five years for similar offenders in similar circumstances, was harsh and excessive. [ 98 ] Finally, the defence relied on R. v. Denelyk , MBPC, May 23, 2012, not yet reported, a case involving one count of dangerous driving causing death. That case involved another tragic death of a well loved 45 year old widowed mother, Mrs. Sandhu. She was

walking across McPhillips, in Winnipeg, in a crosswalk area controlled by traffic lights. As she crossed, a vehicle driven by Ms Quigleywas in the median lane waiting to turn left onto McPhillips at the intersection. Ms Denelyk was behind that vehicle and also wanted toturn left. She did not realize that Ms Quigley was not proceeding with the left turn because of the pedestrian. It appears she wassomewhat impatient.

Instead of waiting her turn, she pulled around the side of Quigley’s vehicle into the curb lane and was staring intoQuigley’s vehicle as she advanced into the intersection to make the left turn, striking and killing Mrs. Sandhu. She was not entitled tomake a left turn from the curb lane. Her speed was found to be approximately 37 kilometers per hour when she hit the pedestrian causingthe fatal injuries.

Somewhat similar to this case, seconds of inattention, a violation of the Highway Traffic Act, and driving errors led to ahorrendous fatality. [99] Like Carleton, from the outset she was horrified by what she had done and accepted responsibility. She was extremelyremorseful. At the time of her sentencing she was still experiencing anguish for the losses suffered by the victim’s children and family,and was still thinking about the death of Mrs. Sandhu on a daily basis. [100] On the advice of counsel, she initially set a preliminary hearing date but pled guilty on that date.

She was a young widow withno criminal or even Highway Traffic record. [101] The Crown was silent on the appropriate penalty. The Court imposed a suspended sentence of 30 months with probation,including counselling and 150 hours of community service, plus an 18 month driving prohibition. In imposing sentence, Judge Finlaysonnoted that there was no evidence of bad driving prior to the accident, no excessive speed, no alcohol and no prior record. [102] In this case, the Crown argued that Denelyk should be distinguished, submitting: In the case at bar, Mr.

Carleton’s bad driving went on for an extended period of time over a distance of approximately 25 city blocks. Inthose 25 city blocks, Mr. Carleton was described by witnesses as driving carelessly or erratically in that he was speeding up then brakingsuddenly, swerving back and forth in and out of his lane, and almost collided with another behicle’s bumper. Mr. Carleton himselfadmitted in a statement he was doing a “cat and mouse thing” with his friend who was driving another vehicle. It cannot be said that thecollision occurred as brief inattention on Mr. Carleton’s part as Mr.

Carleton had seen the crosswalk as well as the stopped vehicles. Furthermore, the lights for the cross-walk had been activated for 10-15 seconds prior to the collision with Ms. Storm. As such, Mr.Carleton’s moral blameworthiness can be described as being much higher than that of Ms. Demelnyk. Secondly, Ms. Demelnyk was described as a perfect driver in that she had no prior criminal record nor a driving record with anyconvictions therein. While Mr. Carleton has no driving record, he does have one entry for speeding for which he received a fine. Moreimportantly, Mr.

Carleton describes himself as a poor driver in his statement to police in that he tends to be inattentive and unaware of hissurrounds. [103] I agree with the Crown that there was an element of preceding bad driving in this case absent in the Denelyk case. However, Ihave already set out why I disagree with the Crown’s characterization that the prior driving was “egregious”. As noted, although thatfeature cannot be overlooked, it does not merit exceptional weight as an aggravating feature.

While Eckert and Wallace deservedsubstantial jail sentences (albeit the latter’s to be served conditionally, as was then possible) Carleton’s moral blameworthiness issignificantly less than either of those offenders. Aside from the imprudent driving by aggressive and multiple lane changes, and one priorspeeding conviction under the Highway Traffic Act, there are no other aggravating factors and many mitigating factors present.

SENTENCING PRINCIPLES: YOUTHFUL OFFENDERS [104] Finally, concerning case law generally, I asked the Crown what role the case law dealing with young first offenders should playin this case. [105] It has long been the case that the principle of restraint is operative for youthful offenders. See: R. v. Demeter and Whitmore(1976), (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.). The rationale must surely be the common sense realization thatsome – if not most – young adults lack maturity and life experience. [106] Our community understands that young adults sometimes behave foolishly, and some commit criminal acts.

While they must notescape unpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness for crimesthey commit as compared to mature adults. It is only just that this be reflected in the sentence imposed. [107] Case law supports the proposition that when an offender comes before the court with no prior record, this mitigating factorshould be also influential in determining a fit sentence. Generally the primary objectives in dealing with first offenders are individualdeterrence and rehabilitation.

In this case the Crown acknowledged that individual deterrence has been achieved through the process ofcharge and conviction. [108] It has been said the sentence should constitute the minimum necessary intervention that is adequate in the circumstances.Sentences of incarceration should be imposed only where necessary: R. v. Priest (1996), (ON CA), 110 C.C.C. (3d)289 (Ont. C.A.). Recently, in R. v.

Draper, 2010 MBCA 35, the Manitoba Court of Appeal explicitly referred to Priest, supra, withapproval at paragraph 24. [109] Courts have also held that particularly in the case of a youthful offender, the first sentence of imprisonment should focus on theparticular offender, including the requirements of individual deterrence. Its length ought not to be governed by the factor of generaldeterrence. See R. v. Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.), and R. v. Demeterand Whitmore (1978) 3 C.R. (3d) 55 (Ont.

C.A.). [110] Both of these cases were considered, quoted from and applied with approval by the Manitoba Court of Appeal in R. v.McCormick, (MB CA), [1979] 4 W.W.R. 453. In that case the Appeal Court upheld a three month sentence for a 20year old offender who committed an armed robbery of a motor vehicle service station at knifepoint.

[111] According to the Manitoba Court of Appeal, the primary consideration in determining the length the sentence for youthful firstoffenders is what period is needed to impress on the particular offender before the court the gravity of the offence. Such a term need notbe lengthy. As Huband J.A. observed in para. 20 in McCormick: 20 The punishment should be tempered by virtue of a clear record. Punishment of the individual is intended to so impress the accusedthat he is unlikely to run foul of the law again.

Having no prior experience to determine its effectiveness, the benefit of the doubt shouldgo to the accused, and this is doubly so when the accused is young in years. In Regina v. Vandale and Maciejewski (1975), (ON CA), 21 C.C.C. (2d) 250, the Ontario Court of Appeal, in a judgment by Martin, J.A., expressed the view that with youthfulfirst offenders, the prime consideration in determining the custodial period is the need to impress upon the accused the gravity of hisoffence. That sentiment was re-stated in the same court by Dubin, J.A., in Regina v. Demeter and Whitmore (1978), 3 C.R. (3d) 55.

TheDemeter case involved two young men, aged 16 and 17, who committed an armed robbery of a kind similar to the robbery committed byMcCormick. Dubin, J.A., in imposing a three month sentence to be followed by a period of probation, wrote as follows: In considering what is an appropriate sentence for the very young, the paramount consideration must be their immediaterehabilitation. Speedy apprehension, arrest, public trial and a criminal record, with its consequences, should be the best deterrent forthose young persons who may be tempted to commit an offence such as this.

In the instant case there is no reason to believe that these two youths had set upon a course of criminal activity as a pattern for theirfuture. Indeed, the contrary appears clear. A short custodial term, followed by a period of probation, in my opinion, affords the bestprospect for their immediate rehabilitation, and if that is accomplished, the protection of the public and the interests of society are bestserved. (emphasis added) [112] Moreover it is wrong to postulate that general deterrence can only be effected by incarceration. In R. v. Leask, (MB CA), [1996] M.J.

No. 586 the Court of Appeal overturned a one year prison sentence and imposed substantial fines ($5000)or community service (300 hours) on three young first offenders for assault causing bodily harm, the circumstances of which weredescribed as “brutal”. Twaddle J.A., for a unanimous court, explained at para. 5: 5 The sentence must be a deterrent one, to discourage these young men and others from engaging in such callous behaviour, but adeterrent sentence does not have to be an incarcetory one.

A fine or order of community service, accompanied by supervised probation,can have a deterrent effect if substantial enough... [113] Finally in considering both individual and general deterrence, the significance of a criminal record as part of the punishmentshould not be overlooked.

In McCormick, (MB CA), [1979] 4 W.W.R. 453, the Manitoba Court of Appeal noted atpara. 21 that “a criminal record itself, and the consequences which it carries, becomes part of the punishment, and should be soconsidered by the judge imposing sentence.” [114] The Crown submitted essentially, that because a young driver is just as potentially hazardous as any driver, the case law onyouthful first offenders should have little effect on the outcome. I cannot agree that these principles should be ignored in the presentcase. They must be given some weight. CONCLUSION [115] Sentencing is an individualized process.

After giving careful thought to the sentencing principles set out in s. 718-718.2 of theCode, especially proportionality, as well as the goals of deterrence and rehabilitation, I have concluded that sending Carleton to jail for alengthy period of incarceration would exceed his overall moral culpability, considering the circumstances of the offence, his personalcircumstances, the significant mitigating circumstances, and the absence of serious aggravating circumstances such as the type ofegregious pre-collision driving in Eckert and Wallace. [116] I find that this tragic loss resulted fundamentally from seconds of inattention or lack of focus as Carleton approached thepedestrian corridor.

Yet, it was preceded by imprudent driving, an aggravating feature. [117] When I look at cases where suspended sentences have been imposed, they do not involve the type of erratic pre-collision drivingpresent in this case. [118] I find that in this case a short period of incarceration followed by two years of supervised probation with a significant communityservice component is appropriate and proportional considering the moral blameworthiness of Carleton and the need for an element ofdeterrence in this sentence. The period of incarceration is 30 days.

Although the period of incarceration is short, any period in acorrectional institution is significant for a youthful first offender. Combining incarceration with substantial community service will notonly result in a proportionate and deterrent sentence, but one that will serve restorative justice and rehabilitative ends. [119] I also prohibit Carleton from driving anywhere in Canada for 18 months.

I have considered the length of prohibition in othercases and his youth and individual circumstances in coming to this determination. [120] The probation conditions will include the following standard statutory conditions. (

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 probationofficer of any change of employment or occupation.

[ 121 ] In addition, Carleton must: (

a) report to probation services, in particular to Restorative Resolutions (

i) within two working days after his release from custody; and (ii) thereafter, when required by his probation officer and in the manner directed by his probation officer. (

b) perform 200 hours of community service over a period not exceeding eighteen months, as directed by his probation officer, a significant portion of which is to be directed to educating other young drivers about the special care to be taken around pedestrian corridors; (

c) attend, participate and complete such counselling, if any, as may be directed. [ 122 ] I leave it to the discretion of his probation officer how many of the 200 hours need to be spent on driver education initiative, provided the period is significant. [ 123 ] Because of the specialized nature of the community service, I am directing the probation along with the community service to be supervised by Restorative Resolutions.

For example, his probation officer may require him to contact Manitoba Public Insurance Corporation (MPIC) so that he may assist MPIC in developing or delivering public education programs; or he may be directed to contact high schools where drivers’ education is being offered, provide a copy of this decision, and offer to participate in those programs in a way that the probation officer decides is consistent with his rehabilitation and personal skills. [ 124 ] I expect Carleton to work with his probation officer to develop an appropriate program for the driver education component of his community service.

Through the probation officer, he may contact Ms Storm’s mother to determine whether she wishes her Victim Impact Statement or a portion of it to be used in driver education programs undertaken as part of his community service. [ 125 ] If through performing his community service Carleton can make other young drivers aware of the terrible consequences that can result from inattention to pedestrian corridors, he may help to prevent and deter another similar tragedy and loss of life. His punishment will help the community.

He must understand that the Court has determined the appropriate level of punishment for this offence. As that is being completed he must resume and then continue the steps he needs to take, such as furthering his education, to fulfill the promise he has clearly shown to himself, his family and the community. I do not expect that this young man will find himself a criminally accused person again. [ 126 ] Costs and surcharge of $102.00 are to be paid within 90 days. _________________________ M. J. SMITH P.J.