R. v. Smoke, 2014 MBCA 91

Citation: R. v. Smoke, 2014 MBCA 91 Date: 20141007 Docket: AR 13-30-08066 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN: ) J. L. OstapiwHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent- and - ) ) ) Appeal heard:DAKOTA DENNIS SMOKE ) September 2, 2014 ) (Accused) Appellant ) Judgment delivered: ) October 7, 2014 BEARD J.A. I.

THE ISSUES [1] This is an application for leave to appeal a sentence and an appeal of that sentence related to the accused’s convictionsfor impaired driving causing death, impaired driving causing bodily harm (two counts) and failing to stop at the scene of an accident(failing to stop), all arising from a serious traffic collision on February 15, 2013. The accused was sentenced to a total sentence of sixand one-half years’ incarceration (before credit for pre-trial custody), and he wishes to appeal that sentence on the following bases: (

i) that the sentencing judge erred in imposing a sentence that was harsh and excessive having regard to the circumstances of theoffence and the circumstances of the offender; and (ii) that the sentencing judge failed to take into consideration the factors set out in R. v. Gladue, (SCC), [1999] 1S.C.R. 688, and s. 718.2(

e) of the Criminal Code. [2] The accused did not proceed with the third ground of appeal relating to the imposition of a consecutive sentence for theconviction of failing to stop. II. THE FACTS [3] The accused and five friends spent the evening of February 14, 2013, and the early morning hours of February 15,2013, drinking at several locations. They were travelling in the accused’s brother’s car, which was being driven by the accused. By allaccounts, the accused was very drunk when they left the last location. [4] The accused was driving north on Osborne Street (continuing onto Balmoral Street) at a high speed.

He drove throughred lights at the intersections at York, St. Mary, Sargent and Cumberland Avenues. A traffic camera at Sargent Avenue showed hisspeed to be 102 kilometres per hour, and the speedometer was frozen at 72 kilometres per hour at the time of the collision. [5] At the intersection at Notre Dame Avenue, the accused drove through another red light, hitting a sport utility vehicle(SUV) that had entered the intersection from the east. The impact was so great that the SUV turned more than 90 degrees and waspushed up onto the sidewalk where the deceased was standing at a bus stop.

The SUV ran into the deceased, causing her to sufferserious injuries from which she died a short time later. In addition to causing one death, three other people were injured – the driver ofthe SUV and two passengers in the car with the accused. [6] The accused fled the scene and was not arrested until two days later. The police took statements from the passengers inthe vehicle, one of whom told police that before the collision they had been trying to persuade the accused to slow down. After his

arrest, the accused was overheard telling his brother to tell his passengers to remain silent. [7] The accused admitted to police that he was the driver and did not apply for interim release. Three months after hisarrest, he pled guilty to the four charges. A pre-sentence report, including a comprehensive Gladue report, was prepared for thesentencing. By the time of the sentencing, the accused had spent eight months in pre-trial custody. III. STANDARD OF REVIEW [8] As correctly noted by both parties, the standard of review on an appeal from sentence is one of deference to the decisionof the sentencing judge.

An appellate court will only interfere if the sentence was demonstrably unfit or was the result of an error ofprinciple. An error of principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to giveweight to a relevant factor or overemphasizing an appropriate factor. (See R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227;R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; and R. v. Ruizfuentes (H.S.), 2010 MBCA 90 at para. 7, 258 Man.R. (2d)220.) IV.

THE SENTENCING JUDGE’S DECISION [9] The sentencing judge began his judgment by explaining in some detail the series of events leading up to the collision. He noted the accused’s early guilty plea, his personal circumstances, the information in the pre-sentence report including the detailsrelated to the accused’s Aboriginal background, and his limited youth criminal record. He ended by stating that “there are no mitigatingfacts.” [10] The sentencing judge then referred to this court’s decisions in Ruizfuentes regarding the range of sentence for impaireddriving convictions involving a death and R. v.

Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267, regarding the application of thetotality principle where an accused receives consecutive sentences. He also referred to the decision of the Supreme Court of Canada inR. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, regarding proportional sentences and the use of a judicially established range ofsentence. [11] The sentencing judge stated that he was applying the four-step procedure in Draper related to sentencing an accused formore than one offence.

Those steps are: (1) determine whether the sentences should be served consecutively or concurrently; (2)determine an appropriate sentence for each offence; (3) if there are consecutive sentences, determine, by applying the totality principleto the cumulative sentence, whether the total sentence is excessive; and (4) if the total sentence is excessive, adjust the sentence to anappropriate length (see Draper at para. 30). [12] The sentencing judge determined that the sentences for the three impaired driving convictions should be servedconcurrently but that the sentence for failing to stop should be served consecutively. [13] The sentencing judge then went on to consider the appropriate sentence for each offence, referencing the decision inRuizfuentes.

He concluded that, for impaired driving causing death, this accused should receive a longer sentence than the four and one-half years’ incarceration given to Mr. Ruizfuentes, and he sentenced him to five and one-half years’ incarceration.

He went on tosentence him to two years’ incarceration for the offence of failing to stop, finding that the facts were sufficiently serious to warrant apenitentiary sentence. [14] The sentencing judge then stated that, before applying the totality principle and taking a “last look,” he had to “reflectagain upon the circumstances of this aboriginal offender.” He concluded that the facts related to the accused’s Aboriginal backgrounddid not contribute to the commission of the offence and found that denunciation and deterrence were the paramount sentencingprinciples. [15] Applying the principles that he found relevant, the sentencing judge determined that a total sentence of seven and one-halfyears’ incarceration would be in excess of what the prosecution was seeking and that “there [would be] no room for optimism about [theaccused’s] future.” He again reviewed some of the provisions of the pre-sentence report and reduced the sentence to six and one-halfyears’ incarceration, composed of five and one-half years for impaired driving causing death, five years concurrent for each of theoffences of impaired driving causing bodily harm and one year consecutive for failing to stop. [16] Finally, the sentencing judge gave the accused eight months’ credit for the eight months that he spent in pre-sentencecustody, which was credited on a one-for-one basis.

This aspect of the sentence is not under appeal. V. THE POSITIONS OF THE PARTIES The Appellant’s Position [17] In his first ground of appeal regarding the length of the sentences, the accused argues that the sentencing judge failed totake into account any mitigating factors when determining the individual sentences for the four separate offences, with the result thatrelevant factors were not considered in determining the appropriate sentences.

This, he argues, was an error in law. [18] He further argues that there was no explanation by the sentencing judge as to why, despite his mitigating circumstances,he deserved a sentence that was higher than the sentencing range approved in Ruizfuentes.

In addition, he argues that the sentences forthe two counts of impaired driving causing bodily harm were significantly above the range, again without explaining why such asentence was warranted in this case. [19] In his second ground of appeal regarding the Gladue factors, the accused argues that the sentencing judge acknowledgedthe Gladue factors but then erroneously concluded that they did not factor into his sentence and went on to apply the conventionalsentencing range. He neither explained why the Gladue factors did not reduce the sentence nor why the accused deserved a sentenceoutside of that range.

Thus, it is argued that he erred by failing to give proper weight to a relevant sentencing factor and by permitting

the circumstances of the offence to overshadow the circumstances of the offender, each of which, he states, was an error in law. The Respondent’s Position [ 20 ] On the first ground of appeal, the Crown argues that it was open to the sentencing judge to impose a sentence outside the range and that he was justified in doing so in this case on the basis that there were a greater number of victims in this matter than in Ruizfuentes .

Regarding the two convictions for impaired driving causing bodily harm, the Crown’s position is that, while these sentences were substantially above the upper limit of the range, they were less than the sentence for impaired driving causing death and, because they were concurrent, they did not affect the ultimate sentence imposed. [ 21 ] The Crown disagrees with the defence position that the sentencing judge did not take into account the circumstances of the accused and his prospects of rehabilitation.

It points out that, in outlining the facts and reviewing the contents of the pre-sentence report, the sentencing judge set out all of the circumstances of the accused and discussed his prospects for rehabilitation. Further, it argues that the sentencing judge dealt with the accused’s prospects for rehabilitation again when he considered whether the total sentence of seven and one-half years would be excessive. Concluding that the sentence would be excessive, he reduced it by one year to six and one-half years.

The Crown’s position is that, by so doing, he was taking into account the accused’s circumstances. [ 22 ] On the second ground of appeal, the Crown points out that the sentencing judge referred to the Gladue factors and to the accused’s Aboriginal background several times in his decision.

He also said, “Before taking Justice Steel’s ‘last look’, it is necessary to reflect again upon the circumstances of this aboriginal offender.” It points out that, after stating that he could not find a “circumstantial deficit” that would demonstrate how using conventional sentencing ranges would add disproportionately to the number of Aboriginal offenders in custody (the statement that the accused argues was erroneously dismissive of the Gladue factors), the sentencing judge went on to correctly find that the paramount sentencing objectives for a drinking and driving offence were deterrence and denunciation. [ 23 ] The Crown argues that there is no requirement that the sentencing judge reduce the sentence because the accused is Aboriginal.

Its position is that the sentencing judge complied with s. 718.2(

e) of the Code and that nothing further was required. VI. ANALYSIS The First Ground of Appeal – Error in the Length of Sentence - the law [ 24 ] As is clear from Draper , a sentencing judge must first determine the fit and proper sentence for each offence by applying all of the appropriate sentencing principles. These would include looking at all of the mitigating and aggravating factors, the circumstances of the offender and the offence, and proportionality. It would also include a consideration of the circumstances of the accused as an Aboriginal offender. [ 25 ] Totality comes at the end of the process.

It is a last look, taken after individually setting the sentences for each offence. Only then does the sentencing judge consider the totality of all consecutive sentences, which is for the purpose of ensuring that what would be fit and proper sentences for each offence do not, when added together, become a crushing sentence for that offender. This is not the time to consider sentencing principles like proportionality and individual circumstances of the accused for the first time .

Doing so can lead to disproportionate individual sentences and constitutes an error in law. - application to the facts [ 26 ] As the Crown argues, the sentencing judge did refer to the circumstances of the accused and to the contents of the Gladue report before determining the sentence for the offences of impaired driving causing death and failing to stop.

While, in some cases, that reference could lead to the conclusion that those circumstances were factored into the determination of the sentence, it is necessary to examine the entirety of a judge’s reasons to determine whether that conclusion should be drawn in a specific case. [ 27 ] In determining the sentence for the conviction for impaired driving causing death, the sentencing judge compared this case to Ruizfuentes , finding similarities in the fact that both drivers had driven through a number of red lights and that both had some prior involvement with the law, albeit neither had a previous Criminal Code driving conviction.

He then went on to state that there were significant differences, noting that this accused was not permitted to have any alcohol in his blood (rather than being subject to the .08 limit) and, otherwise, referring solely to the circumstances of the two offences. Without considering any further differences between the two offenders or referring to mitigating circumstances, he found that the circumstances in this case were more aggravating than those in Ruizfuentes and concluded that this accused should receive a sentence of one year longer than that given to Mr.

Ruizfuentes. [ 28 ] He then stated that, before taking the “last look,” he was required to reflect on the circumstances of this Aboriginal offender and to consider whether he should apply conventional sentencing ranges to this accused. As I will discuss below in more detail, he concluded that those circumstances did not merit any reduction and that deterrence and denunciation were the paramount principles to be applied. [ 29 ] The sentencing judge then said that he was required to consider the “overarching principle of proportionality,” which raised the factors of the accused’s age and criminal history.

He continued by saying that, “He has the demonstrated potential to be a decent member of the community and in that regard a last look at my two sentence assessments becomes very important.” This is clearly a reference to the application of the totality principle from Draper , to which he had referred earlier in his decision. [ 30 ] It was only at this stage that the sentencing judge took into account the accused’s circumstances.

He concluded that the total sentence should be reduced by one year and implemented that reduction by reducing the sentence for the offence of failing to stop but leaving the sentence for the impaired driving causing death conviction at five and one-half years. [ 31 ] Thus, it is clear from reading his decision that the sentencing judge failed to consider (or to take into account) relevant

factors when determining the sentence for the impaired driving causing death conviction, being the circumstances of the accused. In this case, when his reasons are examined in their entirety, the fact that he had reviewed those circumstances earlier in his reasons does not lead to the conclusion that he took them into account because the reasons clearly demonstrate that he did not. Rather, he based his individual sentences on the circumstances of the offences without giving adequate consideration to this individual’s circumstances including his circumstances as an Aboriginal offender.

This is an error in law. [ 32 ] There are three significant differences between the accused and Mr. Ruizfuentes. The first is their ages – the accused was only 18 years old at the time of this collision, while Mr. Ruizfuentes was 40 years old. A youthful offender is usually shown some leniency, while a mature offender is not in the same position. The second difference relates to their prior involvement with the courts. Mr. Ruizfuentes had a lengthy record of traffic offences under The Highway Traffic Act , C.C.S.M., c.

H60, and a short, dated and unrelated criminal record, but no prior convictions under the Criminal Code for drinking and driving offences. This accused had no record of traffic offences, although he was a novice driver and had not been driving for long. The sentencing judge referred to the accused as having a minor, unrelated criminal record but that cannot be equated with Mr. Ruizfuentes’ lengthy record of traffic offences. Third, this accused had a history of dysfunction resulting from his circumstances as an Aboriginal offender, while there is no mention of Mr.

Ruizfuentes having any such issues. [ 33 ] The accused’s age and circumstances as an Aboriginal offender should have been viewed as mitigating factors, and failing to take them (and all of the accused’s personal circumstances) into account when determining the fit and proper sentence for each individual offence was an error in law. Further, failing to distintuish between the accused and Mr. Ruizfuentes when comparing their moral culpability by giving insufficient weight to Mr.

Ruizfuentes’ record of traffic offences and relatively too much weight to the accused’s minor, unrelated criminal record also constituted an error in law. Contrary to the Crown’s argument, taking them into account at the later stage when applying the totality principle did not correct this error because the sentence for each individual offence remained disproportionate for this offender.

The Second Ground of Appeal – the Gladue Report [ 34 ] The sentencing judge stated as follows regarding the pre-sentence report as it related to the accused’s circumstances as an Aboriginal offender: Before taking Justice Steel’s “last look”, it is necessary to reflect again upon the circumstances of this aboriginal offender. ....

I considered the pre-sentence report carefully because I was looking for a circumstantial deficit, and I regret that I cannot figure out a better term, that would demonstrate how using conventional sentencing ranges would cause me to add disproportionately to the number of aboriginal offenders in custody. I drew no such inferences from the thorough pre-sentence report and submissions by counsel. This case involves an individual who made a decision after drinking to start driving. That was illegal. As he continued to drink and continued to drive he formed the intention to offend the Criminal Code .

That leaves me to consider the other sentencing principles and it is undoubted that denunciation and deterrence come first. .... [ 35 ] It is clear that the sentencing judge dismissed the effect of the accused’s Aboriginal background and circumstances (which he referred to as a “circumstantial deficit”) as a factor in determining his sentence for impaired driving causing death, but his reasons for doing so are not clearly articulated.

It appears, however, that he required that the circumstances of the accused as an Aboriginal offender demonstrate how using conventional sentencing ranges would cause him to add disproportionately to the number of Aboriginal offenders in custody.

This suggests that he was looking for a direct causal link between the accused’s circumstances as an Aboriginal offender and the offence that he committed before he would consider those circumstances as a factor in the sentencing. [ 36 ] This view of the use of the circumstances of an Aboriginal offender was too narrow and did not take into account the reality of how an accused person’s Aboriginal background would affect his or her moral blameworthiness and degree of responsibility. In reality, the link may be more indirect and still be relevant.

Thus, a direct link is not required, and, if one is not evident, a court should go on to determine whether there is a more indirect link. [ 37 ] The need to consider an indirect link between an accused’s circumstances as an Aboriginal offender and the offence was clearly articulated by LeBel J., for the majority, in R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 (at paras. 72-73 ): .... The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed.

Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.

This is perhaps more evident in Wells [2000 SCC 10 , [2000] 1 S.C.R. 207 ] where Iacobucci J. described these circumstances as “the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’s conduct” (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability . As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani , 2002

ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals couldwithstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account wouldviolate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes account of the underlyingcauses of the criminal conduct may be more appropriate than one only aimed at punishment per se. …. [emphasis added] [38] The following comments by Steel J.A. in Draper are relevant to the issue of how moral blameworthiness is a factor butnot a complete excuse in sentencing (at para. 24): ... [T]he accused’s actions cannot be excused even though they were driven by addiction.

However, one cannot escape the realitythat the degree of moral blameworthiness is not on par with an offender whose robberies are driven solely by greed. A drug addiction isnot an excuse, but it is a fact to be taken into account and weighed along with many other factors in sentencing. As indicated in R. v.Priest (J.) (1996), 930 O.A.C. 163; (ON CA), 110 C.C.C. (3d) 289 (C.A.), factors which may accentuate the gravityof the crime cannot blind the judge to factors mitigating personal responsibility.

Equally, factors mitigating personal responsibilitycannot justify a disposition that unduly minimizes the seriousness of the crime committed. [39] While Steel J.A. was speaking of an addiction, these comments apply equally to other circumstances such as those ofAboriginal offenders. [40] This

interpretation of the application of moral blameworthiness as a factor but not a complete excuse is consistent with theSupreme Court of Canada’s

interpretation of s. 718.2(

e) of the Criminal Code, being that Aboriginal factors “do not necessarily justify adifferent sentence for Aboriginal offenders” (Ipeelee at para. 60) and “s. 718.2(

e) should not be taken as requiring an automatic reductionof a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal” (Ipeelee at para. 71). [41] It is worth repeating that, while the impact of an accused’s circumstances as an Aboriginal offender often comes into playfor less serious offences and results in a community-based sentence instead of a short period of incarceration, the Supreme Court ofCanada has recognized that, even for serious offences requiring a period of incarceration, these circumstances may still be relevant tolessen what would otherwise be a fit and proper period of incarceration. (See Gladue at para. 79.) [42] Thus, the factors related to the accused’s circumstances as an Aboriginal offender must be taken into account asmitigating factors going to moral blameworthiness and weighed, together with all of the other mitigating and aggravating factors relatedto the offender and the offence, in determining the appropriate sentence for each offence.

This applies whether the link is direct orindirect. This is what the sentencing judge failed to do in this case, resulting in a failure to consider a relevant factor, which is an error inlaw. Sentencing This Accused [43] Where there is an error in law, appellate intervention is justified and it is open to this court to impose the sentence that itfinds is fit. [44] First, it is important to note that both counsel have agreed that a penitentiary sentence for the offence of impaired drivingcausing death is appropriate. I agree. [45] The aggravating circumstances of the offence were significant.

The accused was quite impaired, he had four passengersin his car at the time of the collision, he had been driving at an excessive speed in downtown Winnipeg for many blocks and drovethrough four red lights. His passengers were telling him to slow down, but he did not heed their pleas. As he drove through a fifth redlight, he collided with another car that was legally in the intersection. I would agree with the sentencing judge that the circumstances ofthis offence were more serious than those in Ruizfuentes. [46] This court must, however, go on to consider the circumstances of this accused.

The most significant circumstance, andthat which distinguishes this accused from Mr. Ruizfuentes, is age – this accused was only 18 at the time of the collision, while Mr.Ruizfuentes was 40. As noted earlier, a youthful offender is usually shown some leniency in sentencing as compared to a more matureoffender. Another distinction is that of the prior record. This accused had no prior record of traffic offences and a limited and unrelatedcriminal record. Mr.

Ruizfuentes had a limited and unrelated criminal record with no drinking and driving convictions, but he had 13infractions on his driving record over 15 years, including several for disobeying a traffic control device, an offence that he committedagain by driving through several red lights. [47] Finally, it is also necessary to apply s. 718.2(

e) of the Criminal Code regarding the circumstances of an Aboriginaloffender. It is clear from the pre-sentence report that the accused’s Aboriginal background led to him developing both a drug andalcohol addiction and leaving school at an early age, and was a significant underlying cause leading to him committing these offences. While I will not list all of them, those circumstances include: - both of his parents come from communities where residential schooling and colonization have had a negative impact; - his biological father was not heavily involved with the accused, but he was an alcoholic and abusive, having grown up in severepoverty and surrounded by physical and substance abuse;

- his step-father was also an alcoholic who was abusive when drunk and was unemployed for many years; - his mother also grew up experiencing racism and negative interaction with non-aboriginal peers, and struggled with her own historyof alcohol abuse, although she now abstains; - the family moved frequently when the accused was growing up, ending up in poor neighbourhoods in Winnipeg where he becameinvolved in negative friendships; - the accused began to use marijuana when he was 13, moving up to hard drugs, and began drinking alcohol at around 15, to where hewas suffering black-outs and memory loss by the time he was 16; and - while growing up, the accused experienced racism from non-aboriginal people in the community and from his teachers, which waspart of the reason that he left school at age 15, only completing grade seven. [48] Considering all of these facts, I have concluded that there are significant mitigating circumstances related to this offenderthat are not present in relation to Mr.

Ruizfuentes. [49] Taking all of this into account, I am not satisfied that this offender in the circumstances of this offence should receive ahigher sentence than that imposed on Mr. Ruizfuentes. While the circumstances of this offence are more serious and involve morevictims, that has to be balanced by the mitigating circumstances, which are more significant than those related to Mr. Ruizfuentes. Iwould, therefore, sentence this accused to the same sentence for the impaired driving causing death that was imposed on Mr.

Ruizfuentes– being four and one-half years’ incarceration. [50] I would agree with defence counsel that a sentence of five years for each of the impaired driving causing bodily harmconvictions far exceeds the range for this offence. In R. v. MacDonald (J.K.) (1999), (MB CA), 138 Man.R. (2d)194, this court found that the range of sentence for impaired driving causing bodily harm was 3 to 18 months.

Twaddle J.A., for thecourt, also noted that sentences had been trending towards the higher end of that range. (See paras. 13-14.) [51] In Ruizfuentes, this court determined that the range of sentence for impaired driving causing death had increased since theearly to mid-2000s from that of 1 to 4 years to that of 2 to 5 years. (See para. 22.) It is reasonable to assume that the range of sentencefor impaired driving causing bodily harm should undergo a similar increase, putting the range at 6 to 24 months. [52] In this case, I would sentence the accused to a period of incarceration of 20 months on each of the convictions of impaireddriving causing bodily harm, to be served concurrently with each other and also concurrently with the sentence for impaired drivingcausing death. [53] Finally, for the offence of failing to stop, I agree with most of the sentencing judge’s findings, but his statement that therewere no mitigating factors that would lessen the requirement of a penitentiary sentence was not correct.

I have already referred to themitigating factors, and those are equally applicable to this offence. Taking the aggravating and mitigating factors into account, I wouldsentence the accused to one year of incarceration on this offence, to be served consecutively to the sentence for impaired driving causingdeath. [54] The resulting total sentence would be five and one-half years (66 months) of incarceration.

Applying the principles oftotality and taking one last look at this sentence in the context of the offences and the offender, I would not find that it was excessive orcrushing, so I would not make any further reduction. VII. DECISION [55] I would grant the accused’s application for leave to appeal his sentence and grant his appeal.

I would sentence theaccused to a total of five and one-half years’ incarceration as follows: - four and one-half years of incarceration for impaired driving causing death; - 20 months for each count of impaired driving causing bodily harm, to be served concurrently with each other and concurrently withthe sentence for impaired driving causing death; and - one year for failing to stop, to be served consecutively to the sentence for impaired driving causing death. [56] From this I would deduct eight months for the eight months of pre-sentence custody that the accused served, for a totalnet sentence of 58 months.

In all other respects, I would confirm the orders of the sentencing judge. J.A. I agree: J.A. I agree: J.A.