R. v. Henderson, 2012 MBCA 9

Citation: R. v. Henderson, 2012 MBCA 9 Date: 20120202 Docket: AR 11-30-07522 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : ) C. A. Vanderhooft HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) E. J. Roitenberg and ) L. C.

Robinson - and - ) for the Respondent ) JOAN ANN HENDERSON ) Appeal heard: ) November 3, 2011 (Accused) Respondent ) ) Judgment delivered: ) February 2, 2012 HAMILTON J.A. 1 The Crown appeals the non-jail sentence imposed on the accused after she pled guilty to impaired driving causing bodily harm. At issue is the sentencing judge’s suspension of the passing of sentence and the imposition of two years’ supervised probation on the accused. 2 On her way home after drinking at a bar, the accused drove into the back of a City of Winnipeg street-cleaning truck, pinning a City employee between her car and the truck.

Michael Pacheco suffered horrendous injuries to his legs, from which he will never fully recover. 3 In not imposing a jail sentence, the judge concluded that the accused had demonstrated “exceptional circumstances.” They arise from the side effects of the drug Mirapex, which the accused had been prescribed several weeks prior to the collision for the medical condition known as “restless leg syndrome.” The judge accepted the uncontested medical evidence filed by the accused and found that the drug “caused her to drink compulsively that day” and that her choice to drive “was an impaired choice by someone who had not chosen to become impaired.” She concluded that “this case is out of the ordinary because of the specific factors that caused [the accused] to drink.” 4 The Crown asserts that the judge made palpable and overriding errors with respect to her findings of fact, that she erred in principle in concluding that there are exceptional circumstances and that the sentence is unfit. 5 For the reasons that follow, I disagree.

I would dismiss the appeal. Background 6 On the evening of April 21, 2008, the accused played VLTs at a bar where she drank at least six double alcoholic drinks. On her way home, after the bar closed, she drove her car directly into Mr. Pacheco, who had been removing signs from the roadway and putting them into the back of a truck. The truck, which was in a lane blocked off with pylons, had a yellow flashing beacon light on its rooftop and illuminated directional arrows on the back of the truck warning people that it was stopped and that street work was taking place.

7 Witnesses described the accused as having trouble walking and stumbling, difficulty talking and slurring her words. She had to be helped into the cruiser car when the police arrived. She was sobbing and asking: “What have I done? Look what I’ve done. Is he going to be okay?” 8 Both of the accused’s breath samples had readings of .200, being more than double the legal limit. 9 In her statement to police, the accused remembered going to the bar and drinking “at least” three or four double white rum and cokes.

She admitted that she did not drink before going to the bar because she was taking medication for restless leg syndrome as well as Lorazepam and sleeping pills. 10 Mr. Pacheco was hospitalized in critical condition. He had fractures to both lower legs and severe soft tissue injuries. He spent seven weeks in the hospital, has had eight surgeries and faces the possibility of further surgery. 11 At the sentencing, Mr. Pacheco and his wife both spoke about the physical, emotional and psychological toll this event has had on them and their family.

Medical Evidence Tendered at the Sentencing Hearing 12 With the consent of the Crown, the accused filed the written report of Dr. Ari Kalechstein, along with his curriculum vitae . Dr. Kalechstein is a licensed clinical psychologist with expertise in the field of neuropsychology and is also currently an adjunct associate professor at The Menninger Department of Psychiatry and Behavioural Sciences, Baylor College of Medicine in California.

His expertise in this area and his qualifications to provide an opinion were not challenged by the Crown. 13 The report addressed the side effects of Mirapex, which is prescribed for Parkinson’s Disease and also used for relief of restless leg syndrome. 14 In order to provide his opinion, Dr.

Kalechstein reviewed the testimony from the preliminary inquiry with respect to the accused’s gambling and drinking that night from the waitress who served the accused, the narrative of the police after the crash, the medical records showing the date of the prescription of Mirapex and a letter from the accused’s doctor. 15 In his report, Dr.

Kalechstein wrote that studies have shown that “Mirapex administration is associated with the onset of various impulse control disorders, including Pathological Gambling, even in individuals who had not previously displayed any symptoms of any type of impulse control disorder.” An appendix to the report sets out details of various studies to this effect. The doctor noted that: ….

The onset of impulsive behavior as a result of Mirapex administration is not limited to the onset of pathological gambling; instead, it includes other impulsive [behavior], including, but not limited, compulsive shopping and alcohol consumption. 16 The doctor opined that: ... [T]o a reasonable degree of neuropsychological certainty that [the accused’s] gambling behavior, alcohol use , amnesia, and poor judgment, i.e., driving while intoxicated, was underlied [ sic ] by the administration of Mirapex . The association is well-documented in the peer review literature.

In addition, based on [the accused’s] self-report that she did not previously engage in such behaviors, it is the side effects of the medication, Mirapex, that most likely underlay her behavior on that evening. [emphasis added] Crown Submissions at the Sentencing Hearing 17 The Crown acknowledged that the accused was taking “a drug that was relatively new to her, called Mirapex, along with whatever else she had been prescribed,” that the accused’s guilty plea “is a genuine sign of remorse” and that she “takes responsibility for the events.” 18 Counsel for the Crown stated this with respect to the appropriate range of sentence: Now, the available sentence is anywhere from no jail and anything else below that to a maximum of 10 years in custody. ... [T]he Crown takes the general view that the range of sentence for impaired driving causing bodily harm for a person with no prior record is anywhere from a few months to a few years in the penitentiary.

I don’t see any case law supporting the notion that anything approaching 10 years for a first offender with no record would ever be imposed. .... … [I]t very much depends on the facts and the particular offence. …

[T]here are sentences that involve anything from intermittent sentences in 2009 to substantial jail terms for first offenders. So I think it’sall over the map and it’s a very difficult decision for the court. The Crown position, though, is that the appropriate range is anywherefrom a few months, and in this particular case I would say the high end of the range for someone like [the accused] would be highprovincial time. And that is the position we’re going to take.

I’m going to leave the length of sentence and the type of sentence to thecourt. [emphasis added] 19 Crown counsel acknowledged that specific deterrence was not necessary in this case. He stressed that generaldeterrence and denunciation were the paramount factors, citing the well-known decisions of R. v. McVeigh (1985), (ON CA), 11 O.A.C. 345, and R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, recent amendments to the Criminal Code(the Code) increasing minimum sentences for impaired driving offences, and this court’s recent analysis in R. v.

Ruizfuentes (H.S.), 2010MBCA 90, 258 Man.R. (2d) 220, with respect to the upward trend in sentencing for the offence of impaired driving cause death. 20 As aggravating factors, the Crown cited Mr. Pacheco’s vulnerable position working in the streets and the accused’sbreathalyzer readings. See s. 255.1 of the Code.

Defence Submissions at the Sentencing Hearing 21 Defence counsel agreed with the Crown that a conditional sentence is no longer available because of amendments tothe Code that except an offence that is a “serious personal injury offence.” 22 He explained that until the accused started taking Mirapex, she did not drink or gamble, as evidenced by numerousletters of reference from family and friends. Since the tragic collision, the accused has stopped taking all of the medications, exceptthose prescribed for her blood pressure and ulcers.

He also explained that while she has no memory of what she did on the day of thecollision, she does not dispute what the Crown says. 23 Relying on the report of Dr. Kalechstein, counsel for the accused argued that this was not the “usual case” calling forincarceration given the reduced moral blameworthiness of the accused as a result of the side effects of the Mirapex; rather, this was oneof those exceptional cases where jail should not be imposed, as contemplated in R. v. Gutoski (1990), (MB CA), 63Man.R. (2d) 246 (C.A.). The accused sought a suspended sentence with any conditions the judge wished to impose.

Alternatively, shesought an intermittent sentence if the judge felt compelled to impose jail. 24 After some discussion on the record as to the exact nature of the defence position with respect to the effect of theMirapex on the accused’s state of mind, defence counsel stated the accused’s position as follows: …. [The accused] was suffering the side effects from Mirapex. Those side effect[s] promote compulsive behaviour, particularly, aswe’ve seen, behaviour that a person wouldn’t ordinarily engage in if they’re not predisposed to by their own character.

And when [theaccused] drank that night, it was as a result of exercising a decision that she wouldn’t ordinarily have made as opposed toinvoluntariness. …. 25 At the end of submissions, in reply, Crown counsel stated: …. We don’t take issue with the fact that she was on the medication, that it does have certain side effects, and that some of thebehaviour may have been out of character for her. It doesn’t, however, change the fact that she did drink a significant amount and diddrive and did those things voluntarily. The Judge’s Reasons 26 The judge was moved by the victim impact statements and Mr.

Pacheco’s “overwhelming physical and emotionallimitations that affect him and his family to this date.” She accepted that the accused “is devastated by what has occurred, as evidencedby her guilty plea and her emotional apology” and stated that “[i]t is apparent that she also relives that night with horror.” 27 She noted the Crown’s position that an “appropriate disposition goes from a few months to high-end provincial time”and that the Crown: … [R]ightly points out, the cases are all over the map and are very fact specific.

They have asked for the high end of the range, in partbecause the blood alcohol of [the accused] was .20, over two times the legal limit, and an aggravating factor to be considered under theCriminal Code.

28 She also noted that since 2007, conditional sentences are no longer available for this offence and that the defence was seeking a suspended sentence, which is still available as the Code does not provide for a minimum jail term. See s. 255(2) of the Code . 29 She identified the issue before her as being, “… [W]ould [a suspended sentence] be appropriate in this case?” She concluded that it was for the following reasons: [The accused] is 54 years of age. She has no prior record either for driving or criminal offences.

Unfortunately, that is normally the situation with persons involved in this type of case; they are otherwise upstanding citizens who choose, for whatever reason, to drink and then get behind the wheel of a car and cause carnage on our roads. That is why the cases have so resoundingly stated that, in sentencing for this offence, the prime factor is general deterrence. I could not agree more with this sentiment. This case is out of the ordinary because of the specific factors that caused [the accused] to drink. I am satisfied that she was not normally a drinker at all.

The letters from her family members, friends and boss confirm that they never saw her drink alcohol. She was a coffee drinker. I am satisfied that shortly before April of 2008 she was put on [Mirapex] for restless leg syndrome. The medical literature and the doctor’s letter describe how this drug has been linked to the development of compulsive behaviour, of hyper-sexuality, excessive shopping, gambling and other disorders. As a result, lawsuits have been filed on the side effects that others have experienced.

This convinces me that this is not the normal situation of an upstanding citizen who has a bad day and chooses to drink. Her background and the effect of this drug lead to the conclusion that the drug caused her to drink compulsively that day. She then chose to drive, and for that her guilty plea was accepted, but I find that it was an impaired choice by someone who had not chosen to become impaired. She has since refused to take even prescribed medication except for high blood pressure and ulcers. I therefore find that this is one of those exceptional circumstances where jail is not appropriate.

It is unfortunate that conditional sentences are no longer available for this offence. The problem with mandatory minimums and the deletion of conditional sentence availability for certain offences means that the exceptional case frequently cannot be accommodated. Under the unique circumstances of this case, I sentence [the accused] to a period of two years’ supervised probation. . . . . . In coming to this sentence, I make the following points. I have not at all disregarded the suffering of the Pacheco family, but have tried to balance that with the root causes of the behaviour of [the accused] on that night.

This should not be used as a precedent. I reiterate, I find that there were exceptional and unique circumstances in this case. Position of the Crown 30 The Crown submits that the judge erred in principle by failing to apply the paramount principles of denunciation and general deterrence and by concluding that the accused demonstrated “exceptional circumstances” that took the offence out of its normal range of sentence. In doing so, it says that the judge made palpable and overriding errors with respect to her findings of fact and imposed an unfit sentence.

It seeks a jail sentence. 31 The Crown’s arguments were much the same as those made before the sentencing judge. In addition, the Crown argues that the judge’s observations lamenting the unavailability of the conditional sentence suggest that such a jail sentence would have been appropriate in this case. Therefore, she erred by imposing probation, because a conditional sentence can only be imposed once the sentencing judge has concluded that a probationary disposition would not be sufficient to meet the sentencing goals of s. 718 of the Code . See R. v.

Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61. 32 The Crown further asserts that in concluding that this was an “exceptional and unique” case, the judge made findings that were not based on the evidence, submissions or agreements of counsel. It points to the judge’s statements that the accused’s choice to drive was “an impaired choice by someone who had not chosen to become impaired,” and that the drug Mirapex had “caused her to drink compulsively that day.” The Crown asserts that this was not the evidence at the hearing and points to defence counsel’s statement

near the end of the hearing that “when [the accused] drank that night, it was as a result of exercising a decision that she wouldn’tordinarily have made as opposed to involuntariness.” The Crown argues that the Mirapex explained why she compulsively drank, but itdid not explain why she drove while impaired.

Therefore, the Crown says that the judge made palpable and overriding errors in herassessment of the accused’s decision to drive. 33 Finally, the Crown argues that if the accused’s moral blameworthiness is lessened by the side effects of the drug, thejudge was entitled to impose an intermittent jail sentence (which is permitted only for a sentence of three or less months), but she was notentitled to go outside the range requiring a period of incarceration. Position of the Accused 34 The accused asserts that the judge made no reviewable error in fact or in law and that her sentence is entitled todeference.

She says that the judge was mindful of the paramount sentencing principles of general deterrence and denunciation for theoffence of impaired driving cause bodily harm and that the sentence is not unfit in the exceptional circumstances presented to the court. 35 She relies on Gutoski, in which this court recognized the principle that, where there are exceptional circumstances, ajudge may impose a sentence for impaired driving causing bodily harm which does not involve a jail term.

She asserts that thecircumstances were not intentional risk-taking, which was the case in Ruizfuentes, for example. 36 Her counsel notes that while conditional sentences are excluded, Parliament did not set a mandatory minimum sentencefor the offence of impaired driving cause bodily harm. Therefore, the judge was entitled to consider all the available sanctions under theCode when determining what would meet the sentencing principles set out in the Code.

Further, he says that the case law demonstratesthat prior to 2007, conditional sentences were an option and the judge’s comments about the non-availability of conditional sentences arerelevant with respect to issues of parity. 37 Finally, defence counsel requests that, if the court agrees with the Crown, we apply the following principle articulatedby Doherty J.A. in R. v.

Russo (1998), (ON CA), 42 O.R. (3d) 120 (C.A.) (at p. 126): .... … [T]he court should be reluctant to vary a non-custodial sentence to a custodial sentence on a Crown appeal even where it findserror in principle unless it is also satisfied that the sentence imposed was outside of the acceptable range. This added limitation onappellate intervention recognizes the added hardship brought when a custodial sentence is imposed on appeal several months after anaccused has received a non-custodial sentence at trial. Analysis and Decision 38 The standard of review for a sentence appeal is one of deference.

As explained recently by Chartier J.A. in Ruizfuentes(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), (ON CA), 96 O.A.C. 268; 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. 39 The Crown asserts that this court should intervene because the judge made palpable and overriding errors of fact withrespect to the side effects of Mirapex, erred in principle when she found that the circumstances were exceptional and imposed an unfitsentence. 40 I agree with the Crown that normally the sentence imposed for impaired driving causing bodily harm, even for a firstoffender, is a jail sentence. See, for example, R. v.

Doerksen (1990), (MB CA), 62 Man.R. (2d) 259 (C.A.); R. v.MacDonald (J.K.) (1999), (MB CA), 138 Man.R. (2d) 194 (C.A.); R. v. Ramage (R.), 2010 ONCA 488, 265 O.A.C.158; R. v. Vertlib, 2008 ONCA 236 (QL); R. c. Morency, 2010 QCCQ 1520 (QL); and R. v. Currell, 2010 ONCA 826 (QL). As well, thenumerous amendments to the Code since 1985 to increase penalties for drinking and driving offences demonstrate Parliament’s intentionto deter and denounce drinking and driving offences.

41 For at least two decades the case law has consistently underscored that general deterrence and denunciation are theparamount principles for drinking and driving offences. As stated by the Ontario Court of Appeal in 1985 in McVeigh (at para. 13): Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they maymeet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records.

It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone anylength towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught.

General deterrence in these cases should be the predominant concern, and such deterrence isnot realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving. 42 In Doerksen, Twaddle J.A., for the majority, adopted the foregoing words of MacKinnon A.C.J.O. (see para. 19). Hewrote of the trend to stiffer penalties for impaired driving offences in light of the 1985 amendments in the Code to that effect.

He thenwrote (at paras. 32, 36): ... [O]nly in exceptional circumstances should any offender be spared the ignominy of a prison cell where his impaired driving causedbodily harm or death. …. As I see them, the 1985 amendments are a clear signal to the courts to charge forward in their attack on all impaired drivers, not onlythose who have caused bodily harm or death. At the same time, the increase in the maximum sentence which may be imposed permitsfiner distinctions to be made between offenders.

The culpability of each should be assessed and the appropriate sentence imposed. [emphasis added] 43 In Gutoski, Twaddle J.A., for the court, again wrote about the fitness of a sentence for impaired driving causing bodilyharm and that a sentence of imprisonment is the norm unless there are exceptional circumstances (at paras. 12-14): I had the opportunity in R. v. Doerksen (1990), (MB CA), 62 Man.R. (2d) 259 (judgment delivered on January 2,1990) to consider the effect the 1985 amendments to the Criminal Code should have on sentences for impaired driving.

In the reasonswhich I gave for my judgment in that case (concurred in by O’Sullivan, J.A.), I expressed the view that, in cases of impaired drivingcausing bodily harm, the normal rule should be that a sentence of imprisonment is required. That rule must, of course, be tempered bythe principle that the sentence in every case should be tailored to the circumstances of the offence and those of the offender. Exceptionalcircumstances may exist which will enable a sentencing judge to impose a sentence which does not involve a prison term.

The questionwhich arises here is whether the circumstances of the offence or of the offender were sufficiently exceptional to justify that course beingtaken in this case. That is a question which, because it has not yet been fully canvassed by this court, merits leave to appeal. As to the circumstances of the offence, I accept the learned sentencing judge’s view that there were exceptional circumstances which ledto the accused’s drinking, but I cannot accept that those same circumstances amount to an excuse for him driving after he drank toomuch.

There are many stresses in life which will cause a person to use alcohol unwisely. The fact that the person did so can readily beexcused, but not the criminal conduct of driving afterwards. As to the circumstances of the offender, I am not persuaded that the accused’s good record and remorse are enough to justify anexceptional sentence. The evils of impaired driving are such that, in my view, courts must be zealous in their attempts to deter the crime. An offender who causes harm is not entitled to immunity for his first offence. Some of the worst accidents are caused by first offenders.

Remorse is a reason for leniency where specific deterrence is the primary concern, but not, in my view, where general deterrence is theaim. 44 In MacDonald, Twaddle J.A. reiterated the principle that “[e]xceptionally, where the circumstances of the offence orthose of the offender (or both) do not fit the norm, a sentence above or below the usual range may be justified” (at para. 7). 45 In Ruizfuentes, Chartier J.A. wrote about the 2007 and 2008 amendments to the Code which further increased thepenalties for drinking and driving offences, particularly those causing injury or death (at para. 12):

As a result of these amendments, Parliament has in effect reduced the breadth of sentencing options available for judges by taking awaya type of sentence that was often used for first offenders (the conditional sentence) and by raising the minimum sentence plateau. 46 However, Parliament has not imposed a minimum sentence for impaired driving cause bodily injury. The lawcontinues to be as stated by Twaddle J.A. in Gutoski. That is, a sentence for impaired driving cause bodily harm will be a jail sentenceunless there are exceptional circumstances that permit the judge to impose a non-incarceratory sentence.

Stating this principle is easierthan ascertaining what are exceptional circumstances. 47 We know from Gutoski that a good record and remorse do not amount to exceptional circumstances. We also knowfrom Gutoski that an argument with a family member can be an exceptional circumstance that causes someone to drink, but it does notequate to exceptional circumstances for driving after drinking. The Crown relies on this distinction.

It accepts that the side effects ofthe Mirapex caused the accused to drink, but assert that they did not cause her to drive while impaired. 48 The Crown acknowledges that, like many people convicted of impaired driving, the accused was a sympatheticoffender who was unlikely to reoffend, was genuinely remorseful and that the offence was out of character.

However, the Crown arguesthat none of this makes her case “exceptional” or removes the need for a jail sentence consistent with the applicable jurisprudence. 49 In my view, what is key in this appeal are the judge’s findings of fact, which are entitled to deference unless there ispalpable and overriding error.

The judge made the following crucial findings of fact for determining that there were exceptionalcircumstances: • the accused did not normally drink alcohol; • shortly before the collision she was put on Mirapex for restless leg syndrome; • Mirapex is linked with compulsive behaviour; • Mirapex caused the accused to drink compulsively that day; and • her choice to drive was an “impaired choice” by someone who had not chosen to become impaired. 50 While the judge did not expressly say so, it is clear that she accepted the uncontroverted evidence of Dr.

Kalechstein,who had expressed the opinion that the accused’s “alcohol use … and poor judgment, i.e., driving while intoxicated, was underlied [sic]by the administration of Mirapex.” 51 The Crown asserts that the judge made palpable and overriding errors with respect to these findings of fact. I disagree. Given the evidence before her, and particularly the uncontroverted evidence of Dr.

Kalechstein, the judge was entitled to make thefindings of fact that she did. 52 Although she did not use the words, the judge was certainly addressing the issue of “moral blameworthiness” in relationto the accused’s decision to drive that evening after drinking. It is not open to an accused to attempt to deflect responsibility for choosingto drive impaired based upon voluntary intoxication. That is because the law does not recognize a reduction of moral culpability as aresult of a self-induced condition. However, that is not what the judge found to be the facts here.

On the medical evidence before her,she concluded that the side effects of the drug led the accused to drink compulsively and affected her judgment, including her decision todrive in her intoxicated state. 53 The more difficult question is whether these facts are exceptional circumstances to warrant the non-incarceratorysentence imposed on the accused. This raises a question of law that calls for the standard of review of correctness. I say this because inthe context of criminal law, the application of facts to a legal standard is a question of law. See R. v.

Mabior (C.L.), 2010 MBCA 93, 258Man.R. (2d) 166 (at para. 37): By which standard is this court to review the issue of whether the trial judge erred in her application of the test of “significant risk ofserious bodily harm” to the facts of this case? There are two components to this question. First, the trial judge made certain factualdeterminations. Those findings are entitled to deference, absent palpable and overriding error. See R. v. Grant (D.), 2009 SCC 32, [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, at para. 129.

Second, the application of a legal standard tothe facts of the case is a question of law. See R. v. Shepherd (C.), 2009 SCC 35 , [2009] 2 S.C.R. 527; 391 N.R. 132; 331Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, at para. 20. As a result, absent palpable and overriding error, the facts as found by the trial

judge are to be accepted. Whether those facts, as found by the trial judge, amount at law to “significant risk of serious bodily harm” is aquestion of law and will be reviewed on the standard of correctness. 54 See also R. v. McCaughan (C.J.), 2009 MBCA 14, 236 Man.R. (2d) 188; R. v. Farrah (D.), 2011 MBCA 49 at para. 7,268 Man.R. (2d) 112; and R. v. Katigbak, 2011 SCC 48 at para. 68.

In McCaughan, MacInnes J.A. wrote (at para. 31): When the facts, including judge-found facts, are accepted or not in dispute and the trial judge reaches a conclusion in law on such facts,an appellate court can intervene if it finds that the trial judge committed an error with respect to the legal effect of those facts. It can doso because the disagreement is with respect to the conclusion in law and not with respect to the findings of fact. Put another way, therecan only be appellate intervention if the error with respect to the legal effect is reached on the evidentiary foundation found by the trialjudge.

If it is reached on “a different theory of the facts and the inferences that could be drawn from those facts”, that is not a questionof law alone and an appellate court should not interfere (see Morin [ (SCC), [1992] 3 S.C.R. 286], at 297 [S.C.R.]). 55 There are many examples of cases where a judge, or an appeal court, states that “except in exceptional circumstances, aperiod of incarceration is called for,” or words to similar effect. However, there is little guidance in the case law as to what constitutesexceptional circumstances. 56 In R. v.

Steeves (C.E.) et al., 2005 NBCA 85, 288 N.B.R. (2d) 1, the New Brunswick Court of Appeal wrote aboutexceptional circumstances in the context of sentencing for theft committed by a person in a position of trust, an offence for which generaldeterrence is also a paramount sentencing principle (at para. 1): It has long been the view of this Court and other Canadian appellate courts that the need for general deterrence must be met whensentencing an employee who stole from his or her employer and thereby abused a position of trust.

Absent “exceptional circumstances”,a fit sentence for an offence of this nature is one that features incarceration. While a finding of “exceptional circumstances” typicallyrests upon proof of mitigating factors that tend to lessen guilt or the seeming seriousness of the offence charged, the concept is elastic inmeaning and courts have wisely refrained from attempting to precisely delineate its reach. [emphasis added] 57 While this case, and its companion case, R. v.

Chaulk (K.E.J.), 2005 NBCA 86, 287 N.B.R. (2d) 375, concerned theappropriateness of the imposition of a conditional sentence for theft by a person in a position of trust, the foregoing commentary is aspertinent for this appeal even though a conditional sentence is not an option. 58 In R. v.

Rice (2004), 9 M.V.R. (5th) 169, the Ontario Court of Appeal upheld the finding of exceptional circumstancesand the non-incarceratory sentence for a drinking and driving offence by an offender described as a “life-long alcoholic with a terriblecriminal record, which includes multiple drinking and driving convictions” (at para. 1). The offender had “remarkable success” inrehabilitation for his addiction, which he started right after his arrest.

The Court of Appeal held that the sentencing judge made no errorin principle when she determined that the offender’s “rehabilitative strides” were exceptional circumstances that warranted a sentencethat did not require incarceration. In doing so, the Court of Appeal underscored the importance of general deterrence in drinking anddriving cases and observed that it “applies with equal force to both [‘hardened alcoholics’ and ‘occasional drinkers’]” (at para. 3).

It thenstated that “[t]he exact weight to be attributed to general deterrence depends on the circumstances of the individual case” (ibid.). 59 The case law is clear that, for the offence of impaired driving causing bodily harm, the good character and remorse ofan offender are mitigating, but they are not “exceptional circumstances.” The sentencing judge understood that. 60 In concluding that there were exceptional circumstances here, the sentencing judge focussed on two things: the reasonbehind the accused’s drinking and her subsequent impaired choice to drive.

Both of these, on the evidence, were impacted by what forthe accused were the unknown side effects of Mirapex. By doing so, she was addressing the accused’s moral blameworthiness for thisserious offence and the principle of proportionality, which is the overarching principle of sentencing. See s. 718.1 of the Code. 61 In R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, LeBel J., for the court, wrote about proportionality and moralblameworthiness in the context of an appeal of a sentence for impaired driving which was reduced to take into account a breach of theaccused’s rights under s. 7 of the Canadian Charter of Rights and Freedoms as a result of the use of excessive force by the arrestingofficers (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”, with

particular attention paid to the circumstances of aboriginal offenders. 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 gravity ofthe offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J.V. Roberts and D.P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). 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. [emphasis added] 62 LeBel J. also explained a judge’s broad discretion in sentencing, the required deference owed by an appellate court andthe role of ranges in sentencing (at paras. 43-44): The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [emphasis added] 63 Although a judge must not lose sight of the harm done, it is an offender’s level of culpable behaviour that needs to bescrutinized when assessing moral blameworthiness. In R. v. Eckert (J.J.), 2006 MBCA 6, 201 Man.R. (2d) 175, Steel J.A. explained that(at para. 16): In passing sentence, the judge must assess the moral blameworthiness involved in each case.

It is not sufficient to look only at the tragicconsequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentenceshould express society’s denunciation of the conduct involved. Therefore, the nature of the blameworthy conduct that led to theconsequences must be considered. Chartier J.A. stated it this way in Ruizfuentes (at para. 38):

…. To assess the extent of moral culpability in a particular case, due regard must be given to “the intentional risk-taking of the offender,the consequential harm caused by the offender, and the normative character of the offender’s conduct” (see R. v. C.A.M. [ (SCC), [1996] 1 S.C.R. 500], at para. 80). 64 In my view, that is exactly what the judge did here. Given the uncontested medical evidence before her, she found thatthe accused’s drinking was caused by the drug Mirapex and that her level of intentional risk taking by driving while impaired waslessened as a result.

She also found that the accused’s conduct, including her drinking, was out of character as the normative character ofher conduct was not to drink or gamble. She also understood that the consequential harm to Mr. Pacheco caused by the accused’sconduct was great. 65 I see no error of law in the judge’s determination that exceptional circumstances existed here that permitted her toconsider a non-incarceratory sentence for the accused. I note that the Crown acknowledged that an appropriate range of sentence wasthree to 18 months of incarceration and that if three months, the sentence could be served intermittently.

Given that the range ofsentence started at three months and that the judge made no error in principle in finding exceptional circumstances, I cannot say that thesuspension of sentence accompanied by two years’ supervised probation is unfit. 66 I think it important to note that the judge suspended the passing of sentence on the accused for two years pursuant to s.731(1)(

a) of the Code: 731.

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of theoffence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on theconditions prescribed in a probation order; …. 67 The suspension of the passing of sentence means that if an offender breaches a condition of a probation order orcommits another offence during that period of probation, the Crown may apply to court to have the probation order revoked. In thosecircumstances, a judge may “impose any sentence that could have been imposed if the passing of sentence had not been suspended.” Sees. 732.2(5). 68 As explained in Clayton C.

Ruby et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) (at para. 10.8): …. The value of the probation lies in the fact that it is a restraint upon the freedom of the offender through the supervised control andthe realization that a breach of the probation would likely lead to a term of imprisonment. …. See also R. v. Tuckey (1977), (ON CA), 34 C.C.C. (2d) 572 (Ont. C.A.). 69 Finally, I do not accept the Crown’s argument that the judge’s comments about the unavailability of the conditionalsentence indicate that a jail sentence was an appropriate sentence for the accused.

The judge had already determined that jail was notappropriate and she was simply stating, in obiter, the view that a conditional sentence may very well have been an appropriate sentencehad it been available. Her observation does not make the sentence that she imposed unfit. 70 This was a particularly difficult sentencing. Counsel for the Crown acknowledged this early in his submissions at thesentencing when he stated that the sentence to be imposed was “a very difficult decision for the court.” As expressed by Doherty J.A. inR. v.

Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.) (at para. 1): The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwisedecent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy. …. He went on to say that (at para. 2): As difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence that reflects thecircumstances of the specific offence and the attributes of the specific offender.

Sentencing is not based on group characteristics, but onthe facts relating to the specific offence and specific offender as revealed by the evidence adduced in the proceedings. ….

[emphasis added] 71 The sentencing judge understood that the paramount principles of sentencing for the offence of impaired driving cause bodily harm are denunciation and deterrence and that normally a jail sentence is imposed for a first offender who is otherwise of good character. She also understood that the sentences vary depending on the specific circumstances of the offence and of the specific offender. 72 While recognizing the grave consequences to Mr.

Pacheco caused by the accused’s conduct, the judge concluded that a jail sentence was not warranted given the reduced moral blameworthiness of the accused in the context of all of the other mitigating factors in her favour. In doing so, she did not commit any palpable and overriding errors of fact or any error in principle; nor did she impose an unfit sentence. 73 I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.