R. v. Wallace, 2012 MBCA 54

Citation: R. v. Wallace, 2012 MBCA 54 Date: 20120531 Docket: AR 11-30-07593 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) C. A. Vanderhooft ) for the Appellant Appellant ) ) B. F. Bonney ) for the Respondent - and - ) ) Appeal heard: ) December 15, 2011 BRIAN KENNETH WALLACE ) ) Judgment delivered: (Accused) Respondent ) May 31, 2012 MacINNES J.A. 1 The accused pled guilty to charges of dangerous driving causing death and refusal to provide a breath sample.

He was sentenced to two years’ imprisonment less one day to be served in the community, followed by one year of supervised probation. The Crown seeks leave to appeal the sentence. 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. 10 The Crown sought a sentence of three years’ incarceration in respect of the conviction for dangerous driving causing death and one year consecutive for refusal to take a breathalyzer.

The accused sought a jail sentence of two years less a day to be served in the community, together with a period of probation and a five-year prohibition from driving. He acknowledged that in terms of the moral blameworthiness, there was a high rate of speed involved and consumption of alcohol. 11 The sentencing judge imposed a sentence of incarceration of two years less one day to be served in the community, subject to extensive conditions.

As well, he imposed a sentence of six months’ incarceration for refusing to provide a breath sample, such sentence to be concurrent with the sentence for dangerous driving causing death, and also to be served in the community. 12 In addition, a term of one-year supervised probation with conditions was imposed, as well as a five-year driving prohibition.

POSITION OF THE CROWN 13 The Crown submits that the sentencing judge erred in principle by failing to apply what it asserts are the paramount principles of sentencing for the offence of dangerous driving causing death; namely, that of denunciation and general deterrence.

It argues that the judge overemphasized the principle of rehabilitation and underemphasized the gravity of the crime and the moral blameworthiness of the accused, thus resulting in an unfit sentence. 14 In addition, the Crown asserts that the judge erred in law by failing to consider the accused’s refusal to provide a breath sample as an aggravating factor and by imposing a concurrent sentence for it, arguing that the refusal offence was not part of the same transaction as the dangerous driving causing death offence. 15 The Crown says that the refusal arose in the course of the investigation of the accident and after the collision and death had already taken place.

It asserts that the accused knew when he refused that the victim had died. At the very least, says the Crown, the judge thus failed to consider this highly aggravating circumstance of refusal and, at worst, failed to consider it as an entirely separate offence for which a consecutive penalty ought to have been imposed. 16 In addition to these asserted errors in principle, the Crown submits that the accused’s sentence was demonstrably unfit, that leave should be granted, its appeal allowed, and a period of incarceration in an institution should be imposed.

POSITION OF THE ACCUSED 17 The accused argues that the appropriate range of sentence in a case such as this is one of incarceration for a period of high provincial time. He submits that a sentence of two years less a day to be served in the community is a fit sentence.

He argues that the principal consideration on this appeal is one of fitness of sentence and says the judge arrived at a fit sentence and, in doing so, applied proper sentencing principles. 18 The accused argues that both the Crown and defence counsel made numerous references to the principles of denunciation and deterrence and the question of the accused’s moral blameworthiness in respect of the offence and that the sentencing judge appropriately considered all three.

He asserts that the judge correctly concluded that the sentences recommended by both counsel were within the range of appropriate sentences for the dangerous driving causing death offence. 19 The accused argues that, while his consumption of alcohol might be a relevant fact in respect of his assumption of risk in driving that night (i.e., towards mens rea ), no such submission was made by the Crown to the sentencing judge. 20 He asserts, however, that his consumption of alcohol is not, in the circumstances here, a relevant fact in respect of the dangerousness of his driving (i.e., the actus reus of the offence) because, as the sentencing judge rightly concluded, there was no sufficient evidentiary basis as to the amount consumed or as to the effect such drinking had on his ability to drive. 21 The accused also argues that the judge made no error in imposing a concurrent sentence for the refusal offence and that he recognized the seriousness of the accused’s conduct by sentencing him to six months’ incarceration, albeit concurrent to the sentence for the dangerous driving causing death offence. 22 The accused submits that the sentence imposed was a fit and proper sentence and that there is no basis for appellate interference in respect of it.

ANALYSIS AND DECISION 23 The standard of review for a sentence appeal is one of deference. This has been made clear by the Supreme Court of Canada on several occasions, as well as by appellate courts throughout the country. 24 Recently, in R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163 , LeBel J. wrote (at paras. 14-15):

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be “convinced it is not fit”, that is, “that … the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15). This Court also made the following comment in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. …. Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference.

The sentencing judge has “served on the front lines of our criminaljustice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M. (C.A.), at para. 91). …. 25 It was recently so expressed by Chartier J.A. in R. v. Ruizfuentes (H.S.), 2010 MBCA 90, 258 Man.R. (2d) 220 (at para. 7): As was stated in R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, at para. 14, an appellate courtmust show “great deference” when reviewing a sentencing decision.

Upon the granting of leave, an appellate court can only interferewith a sentence in two circumstances: when the sentence is “demonstrably unfit”, “demonstrably inadequate or excessive”, or “clearlyunreasonable”, or when it has been arrived at as a result of an error in principle. An error in principle includes failing to consider arelevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing anappropriate factor. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106W.A.C. 37; R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; R. v. Rezaie(M.) (1996), 95 O.A.C. 268; (ON CA), 112 C.C.C. (3d) 97 (C.A.), and R. v. Solowan (K.S.T.), 2008 SCC 62, [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, at para. 16. “Unreasonableness” or“demonstrably unfit” in the sentencing context refers to an order falling outside the “acceptable range” of sentences under similarcircumstances. See Shropshire, at para. 50, and R. v.

G.W., (SCC), [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. &P.E.I.R. 139; 550 A.P.R. 139, which is referred to at para. 14 of L.M. 26 The Crown argues that this court should intervene because the judge erred in principle by failing to give sufficient weight tothe sentencing principles of denunciation and deterrence and by failing to give appropriate recognition to the moral blameworthiness ofthe accused in respect of the offence of dangerous driving causing death. 27 The circumstances of this offence are exceedingly troubling, not only because of the tragic and senseless death of Ms Hadley,but because of the accused’s conduct which resulted ultimately in her death. 28 Ms Hadley was lawfully driving her vehicle on a residential street in Winnipeg.

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

That in itself was a dangerous manoeuvre, given that there were parked vehicles ahead of him in the lanein which he was travelling, which thus necessitated rapid acceleration to get ahead of his cousin’s vehicle and moving from the curb laneinto 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 anothermotorist drove her vehicle from the roadway onto the median out of fear.

The accused continued his rapid pace, driving between thatvehicle and parked vehicles as he continued to accelerate, ultimately to a speed of approximately 138 kilometres per hour on a residentialstreet with a speed limit of 50 kilometres per hour. He failed to see the stop sign facing him at the intersection of Cavalier Drive andfailed 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 thathe did not apply his brakes until approximately one-half second before impact and his speed at impact was 136 kilometres per hour. 30 While the sentencing principle of rehabilitation is, as always, a factor for consideration, the law is clear that in respect ofoffences of this kind, the sentencing principles of denunciation and general deterrence are paramount. 31 Nonetheless, the overarching principle of sentencing is that of proportionality, which must always be met in the imposition ofa fit sentence.

That principle is set forth in s. 718.1 of the Criminal Code, which requires that a sentence must be proportionate to thegravity of the offence and the degree of responsibility (the moral blameworthiness) of the offender. 32 Recently, in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, LeBel J. wrote about both (at paras. 40-42): The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of theoffence and the degree of responsibility of the offender”.

Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list ofsecondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity andtotality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, …. It is clear from these provisions that the principle of proportionality is central to the sentencing process …. …. … [I]t requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravityof the offence. ….

Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary.

33 In his reasons for sentence in this case, the judge acknowledged the principle of proportionality. He described the fundamental purposes of sentencing to be holding the offender accountable, bringing home the message that the crime committed was horribly wrong, and achieving the long-term protection of the public. He instructed himself that close attention had to be paid to the circumstances of the offence, the consequences of the offence and the circumstances of the offender in considering what type of sentence and what length of sentence should be imposed.

He concluded that the sentences proposed by Crown and defence counsel in their respective submissions were within the range of appropriate sentences for the offence of dangerous driving causing death in the circumstances of this case. 34 The sentencing judge considered the moral blameworthiness of the accused in respect of the accident, including his drinking and outrageous driving, the horrific circumstances of the collision which resulted in the useless death of the victim and the devastating loss to her family and acquaintances, and the antecedents, circumstances and prospects of the accused. 35 The judge imposed a sentence of incarceration for the offence of dangerous driving causing death; namely, two years less one day to be served in the community, to be followed by one year of supervised probation.

Both were subject to enunciated restrictive conditions, including a curfew. 36 In the end, while alcohol was involved, the accused’s level of impairment was unproven. He pled guilty to the offence of dangerous driving causing death, not to the offence of impaired driving causing death. In my opinion, the sentence of incarceration for a period of two years less a day is within the appropriate sentencing range for the offence in question, albeit, perhaps, at the lower end of the range, given the particular circumstances of this case.

Thus, I would not interfere with the length of the sentence. 37 However, in my view, the question remains whether the judge erred in ordering that the sentence be served in the community. 38 In R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , the Supreme Court of Canada overturned a decision of this court granting a conditional sentence and reinstated the decision of the trial judge, who had imposed an 18-month term of imprisonment on an 18-year- old accused with no previous record.

The accused, after consuming alcohol, and while driving a vehicle which he knew to be mechanically unsafe, drove erratically on slippery roads, attempted to overtake a vehicle, and collided with an oncoming vehicle, causing the death of his passenger and serious injuries to both the driver of the other vehicle and to himself. 39 In Proulx , Lamer C.J.C. wrote (at paras. 114-15): Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually. 40 In R. v.

Eckert (J.J.) , 2006 MBCA 6 , 201 Man.R. (2d) 175 , this court allowed the Crown appeal from a conditional sentence of two years less a day imposed after a guilty plea on a charge of dangerous driving causing death and varied that sentence to one of the same length to be served in a correctional institution. 41 In Eckert , the accused had spent the afternoon partying at a bar a few miles away from the location of the collision. He drank at least two beers and one tequila shooter. There was evidence that he did “wheelies” as he drove down Portage Avenue on his way home.

He drove through a red light, manoeuvring 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. Witnesses estimated his speed as 200 kilometres per hour. It was at least 100 kilometres per hour on impact.

His dangerous driving occurred over a far greater distance than the accused’s here. 42 Moreover, Eckert, who was 25 years of age, had a driving record that included 11 speeding convictions, one conviction for stunting, one for failing to stop for a stop sign and others. Steel J.A. wrote (at para. 11): This type of record confirms that his extraordinary reckless driving on the day of the collision was not unique. It was reflective of behaviour that was present before. 43 Steel J.A. continued in Eckert (at paras. 15-16 ): … [I]n 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. 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. 44 While the result of Eckert was the same as in this case, namely, the killing of an innocent victim, the circumstances of Eckert were, in my view, more egregious than in the case here. Eckert’s dangerous driving occurred over a greater distance and he had a

lengthy record for driving offences. 45 Distinct from Eckert is the case of R. v. Duchominsky (M.), 2003 MBCA 19, 170 Man.R. (2d) 270. There, the accused wasconvicted of two counts of dangerous driving causing death and three counts of dangerous driving causing bodily harm as a result of aserious motor vehicle accident. The accused, in the course of his employment and accompanied by a co-worker, was driving a largetruck towing a trailer. The driving conditions were excellent, his vehicle was in sound condition, and prior to the accident, he wasdriving normally and responsibly.

Approaching an intersection, he was faced with flashing warning lights indicating that the intersectionlights ahead were either red or would shortly be turning red. 46 The accused had been travelling in the right-hand lane. He pulled his vehicle into the left-hand lane, passed a truck that hadalready stopped at the intersection, proceeded into the intersection against the red light and struck a small, compact car. Two occupantsof the car were killed and the other three seriously injured. The Crown sought a penitentiary sentence of three to five years and thedefence, a conditional sentence of 18 to 24 months.

The accused was sentenced to a period of incarceration of two years less a day. 47 In considering the appeal, Freedman J.A. wrote (at para. 15): The importance of maintaining a balanced perspective in this difficult area was aptly articulated by the Ontario Court of Appeal in itsrecent judgment in R. v. Areco (1999), (ON CA), 126 O.A.C. 338; 140 C.C.C. (3d) 255. Areco was a case ofdangerous driving causing death, where the driver was speeding and crossed over a centre line causing a crash.

The court said (at para.11): There is no doubt that the offence was a serious one that resulted in immeasurable loss to the victims, … The seriousness of the loss wasproperly reflected in the imposition of a term of imprisonment. However, it is not sufficient to look at the consequences alone whenassessing the overall seriousness of an offence. The blameworthy conduct that led to these consequences must be considered. In thiscase, the appellant’s manner of driving, although dangerous in all the circumstances, and deserving of a criminal sanction, was not themost egregious of its kind.

Rather, in terms of relative seriousness, it certainly fell within the lower end of the range of dangerousdriving offences. Hence, it is our view that the imposition of a conditional sentence would not have demeaned the seriousness of thisoffence. 48 Freedman J.A. accepted that view, stating (at para. 16): ….

In determining the appropriate disposition, a court must consider all relevant factors, whether aggravating or mitigating, and doing sodoes not diminish the gravity of the offence or the appellant’s conduct. …. 49 While acknowledging that the catastrophic results of the accused’s dangerous driving are an important factor that must betaken into consideration, Freedman J.A. pointed out that (unlike here) there was no alcohol or excessive speed involved or other factorsthat could be regarded as aggravating.

The court allowed the appeal and replaced the sentence of two years less a day in jail with asentence of two years less a day to be served in the community. 50 Eckert and Duchominsky are but two examples of dangerous driving causing death offences with catastrophic results to thevictim(

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

In this case, the sentencing judge demonstrated in hisreasons that he was alive to the aggravating circumstances which existed here; namely, alcohol consumption and an accident with tragicconsequences 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, particularlywhere, 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 ofsentence. 53 In this case, there are a number of mitigating circumstances.

There is no doubt that the accused has real and considerableremorse for his conduct and its result. 54 The accused quit drinking following the accident and he has not drank since then.

He had no prior criminal record, and onlyone speeding infraction in 2006. 55 Approximately five years have elapsed since the date of the offence and nearly one year since the imposition of the sentenceappealed from without any reinvolvement by the accused, including no breach of the conditions of his release pending trial or of theconditional sentence imposed by the sentencing judge. 56 The accused was 28 years of age at the time of the offence and 31 years of age when sentenced on June 1, 2011. He was in adomestic relationship with his life partner.

They had two children at the time of the sentencing and she was then pregnant. At the timeof the appeal before us, she had given birth and their relationship continued, now with three young children. 57 The accused has had steady employment since leaving school and his employer at the time of sentencing provided acomplimentary reference letter which confirmed that the employment would continue. 58 He was assessed by Restorative Resolutions as a medium risk to reoffend, although the report concludes by recommending acommunity-based sentence.

His counsel advised that the assessment of medium risk to reoffend was in part at least the result of aconcern over the stability of his relationship with his partner. The report was prepared November 30, 2010, and that relationship has

continued since then, as a result of which the accused’s counsel argues that the risk for reoffending should be downgraded. 59 There is evidence of a growing maturity in the accused in respect of his relationship with his partner, his involvement withtheir children, and his abstention from alcohol. His life seems to be coming together beyond that which pre-existed the offence. All ofthese factors were taken into account by the sentencing judge. 60 As I have already stated, the length of sentence falls within the appropriate range of sentence in all of the circumstanceswhich exist here.

An appellate tribunal is not to interfere with the sentence imposed by a sentencing judge because it may have imposeda different sentence.

Rather, as I have indicated, the entitlement to interfere is limited to those circumstances where the sentence isdemonstrably unfit or where it has been arrived at as a result of an error in principle. 61 After considering the type of sentence, I am not persuaded of any error in principle by the sentencing judge. 62 Furthermore, while a conditional sentence is technically a custodial sentence, I note the comments of Doherty J.A. in R. v.Russo (1998), (ON CA), 42 O.R. (3d) 120, a decision of the Ontario Court of Appeal, where he wrote (at p. 126): ….

I think, however, that the court should be reluctant to vary a non-custodial sentence to a custodial sentence on a Crown appeal evenwhere it finds error in principle unless it is also satisfied that the sentence imposed was outside of the acceptable range.

This addedlimitation on appellate intervention recognizes the added hardship brought when a custodial sentence is imposed on appeal severalmonths after the accused has received a non-custodial sentence at trial. 63 As regards the Crown’s appeal with respect to the concurrent sentence of six months’ incarceration for the offence ofrefusing to provide a breath sample, it is my view that the length of sentence is unassailable. Further, the fact that it was madeconcurrent as opposed to consecutive with the sentence for dangerous driving causing death is something clearly within the discretion ofthe sentencing judge.

There is no basis for appellate intervention in respect of it. See R. v. McDonnell, (SCC), [1997]1 S.C.R. 948 at para. 46, and R. v. Li (P.S.), 2009 BCCA 85 at para. 24, 267 B.C.A.C. 77. 64 I would therefore grant leave, but dismiss the Crown’s appeal from sentence. _______________________ J.A. I agree: _______________________ J.A. I agree: _______________________ J.A.