R v Saunders, 2015 MBCA 98

Citation: R v Saunders, 2015 MBCA 98 Date: 20151013 Docket: AR15-30-08377 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) A. L. Sansregret ) for the Appellant ) Respondent ) R. D. Lagimodière ) for the Respondent - and - ) ) Appeal heard: DARRYL SAUNDERS ) September 17, 2015 ) ) Judgment delivered: (Accused) Appellant ) October 13, 2015 CAMERON JA [ 1 ] Having been granted leave, the accused appeals his sentence of 12 months’ incarceration for the offence of impaired driving contrary to section 253(1) (

a) of the Criminal Code (the Code ). For the reasons that follow, I find that the trial judge erred in principle by considering an irrelevant factor. However, after contemplating the matter afresh, the 12-month sentence continues to be proportionate for this offence and offender and I would uphold it. Background and Issues [ 2 ] The facts of the offence are significant. After consuming alcohol and becoming intoxicated at a house party, the accused and another man decided to leave to get more alcohol.

While driving approximately 60 kilometres per hour (ten kilometres over the speed limit) on a dark road in northern Manitoba at 1:20 a.m., the accused ran over and killed the deceased. At the time of the collision, the deceased was intoxicated and laying in the middle of the road. The accused was arrested at the scene. His breathalyzer readings were 150 milligrams of alcohol per 100 millilitres of blood.

He was charged with impaired driving causing death ( section 255(3) of the Code ) and driving with a blood alcohol concentration over .08 causing death ( section 255(3.1) ). [ 3 ] The trial judge acquitted the accused of impaired driving causing death and driving with a blood alcohol concentration over .08 causing death on the basis that he was not satisfied beyond a reasonable doubt that the accused’s level of impairment, or his blood alcohol concentration, was a “contributing cause or factor at all, let alone one beyond the de minimis range.” Rather, he convicted the accused of the lesser included offences of impaired driving and driving with a blood alcohol concentration over .08 ( sections 253(1) (

a) and 253(1) (b)). [ 4 ] At the sentencing hearing, the trial judge entered a judicial stay on the charge of driving with a blood alcohol concentration over .08. He then proceeded to sentence the accused on the charge of impaired driving to 12 months’ incarceration followed by two years’ probation and a three-year driving prohibition. The accused only appeals the 12-month incarceration portion of the sentence. Issues and Positions of the Parties [ 5 ] The accused raises two grounds of appeal. First, he argues that the sentence was excessive given his background and the nature of the offence.

Second, he contends that the sentence was excessive given the trial judge’s finding that the impaired driving was in no causal way related to the death of the deceased. In support of this ground of appeal, the accused states that, having acquitted him of impaired driving causing death, the sentencing judge wrongly considered the accident to be an aggravating factor. Thus, he maintains that the trial judge erred in law by taking into account an irrelevant factor.

[6] At the appeal hearing of this matter, in relation to his contention that the trial judge improperly considered theaccident to be an aggravating factor, the accused suggested that the trial judge also improperly considered the victim impact statementsof the family of the deceased. I do not need to delve deeply into this argument as I agree with the Crown that a fair reading of thetranscript shows that the trial judge listened to the victim impact statements for restorative purposes. He did not rely on them inimposing the sentence he did.

However, I would take the opportunity to note that, had the issue been before the trial judge today, hewould have had to consider the Canadian Victims Bill of Rights, SC 2015 c 13 s 2, which has come into force since the time of thissentencing.

Section 2 of that Act contains an expanded definition of the word victim for the purposes of the presentation of a victimimpact statement to the court. [7] At the end of the day, the accused asks this Court to impose a period of incarceration of four months. [8] The Crown argues that the trial judge repeatedly stated that he was not sentencing the accused based on thecircumstance of death and a reading of his decision as a whole evidences such. Further, the Crown argues that, in all of thecircumstances, the sentence imposed was not unfit.

Analysis and Decision [9] Absent the accused showing that the trial judge committed an error in principle, or that the sentence is demonstrablyunfit, deference must be shown to the decision of the trial judge. An error in principle includes failing to consider a relevant factor,taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor.

See R v M (CA), (SCC), [1996] 1 SCR 500; R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220; andR v Gabriel (QJ), 2013 MBCA 45, 291 ManR (2d) 291. [10] We agree with the accused that, in circumstances such as these, consideration of the accident as an aggravating factorconstitutes an error. In R v Doerksen (1990), (MB CA), 62 ManR (2d) 259, this Court had the opportunity toconsider the issue in the context of the Crown entering into a plea bargain and accepting a guilty plea to a lesser charge of drivingimpaired in a situation where an impaired driver was involved in a fatal accident.

Similar to this case, the deceased in Doerksen wasresponsible for creating a dangerous situation on the highway which contributed to the accident. In that case, the Crown asked the courtto take into account the fact of the fatality.

Although divided on the issue of quantum of sentence, all members of the panel agreed thatthe court could not rely on the fact that the death was caused by the conduct of the accused as an aggravating factor. [11] There is no distinction between the Crown accepting a guilty plea to a lesser charge and the court convicting on a lessercharge. [12] In this case, despite stating, on a number of occasions, that he was not sentencing the accused based on the fact of thedeath, the trial judge also said that he considered the accident to be an aggravating factor.

Having found that he was not satisfied beyonda reasonable doubt that the accused’s level of impairment affected his driving to the extent necessary to convict the accused of causingthe death, the trial judge was necessarily finding that there was a reasonable doubt that the accused’s impairment caused the accident thatresulted in the death. The accident and death are one event. In the context of this case, they are serious factual circumstances.

However, by considering the accident to be an aggravating circumstance, the trial judge erred in principle by considering an irrelevantfactor. [13] An error in principle having occurred, this Court is now able to consider the matter afresh. Conversely, it is still openfor this Court to conclude that the original sentence was fit and uphold it.

See, for example, R v Proulx, 2000 SCC 5 at para 123, [2000]1 SCR 61; and R v Smoke (DD), 2014 MBCA 91 at para 43, 310 ManR (2d) 123. [14] Despite the very able submissions of counsel, in my view, the error made by the trial judge did not rise to the level thatit caused him to impose an unfit sentence. While the trial judge considered the accident to be an aggravating factor, he did not sentencethe accused as if he had been convicted of the offence of impaired driving causing death.

The trial judge correctly stated that, had hebeen sentencing the accused for such an offence, the accused would have been “looking at a penitentiary term.” See Ruizfuentes at para22. [15] In cases of drinking and driving, the sentencing principles of deterrence and denunciation are paramount. In Doerksen,Twaddle JA analysed and adopted the jurisprudence of various courts recognizing and enforcing the intent of Parliament to mandateheavier sentences for drinking and driving (see paras 19-38). The situation has not changed.

Parliament continues to impose heaviersentences for drinking and driving offences, including increased mandatory minimum sentences and lengthier driving prohibitions. SeeRuizfuentes at paras 11-12. See also the Criminal Law Improvement Act, 1996, SC 1997 c 18;

An Act to amend the Criminal Code(impaired driving and related matters), SC 1999 c 32;

An Act to amend the Criminal Code (impaired driving causing death and othermatters), SC 2000 c 25; and the Tackling Violent Crime Act, SC 2008 c 6. [16] In Doerkson, Twaddle JA, writing for the majority, stated that in circumstances such as these, while a sentence of 12months’ imprisonment “might have been fit for another offender” (at para 51) it was unfit for that accused based on his exemplaryrecord. In that case, the accused was 47 years old, had not even been convicted of a minor traffic violation, had a family, and wasusefully employed his entire adult life.

He was also an active volunteer with many glowing testimonials. [17] I recognize there are Gladue factors in this case (see R v Gladue, (SCC), [1999] 1 SCR 688) given theAboriginal ancestry of the accused (section 718.2(

e) of the Code). Also there are mitigating circumstances to be taken into account(section 718.2(a)). He has a supportive family. He will be able to return to his previous employment upon release. I also acknowledgethat he did not leave the scene of the accident and that he was co-operative with police. At the hearing of the matter we were told that hehas taken some programming and attended Alcoholics Anonymous meetings while incarcerated.

[ 18 ] However, the aggravating factors are substantial. At the time of driving, the accused was on his way to get more alcohol despite the fact that his blood alcohol level was almost double the legal limit. By driving in such a condition, the accused put himself in the situation of “being impaired when another’s mistake made it imperative that he be alert” ( Doerksen at para 48 ). While the speed he was travelling was perhaps not the most egregious (ten kilometres over the limit), he nevertheless was speeding and had already crossed the middle of the road once as a result of inattention.

His intentional risk taking in this regard is evidenced by the fact that, prior to the accident, his passenger told him to “stick to the speed limit so they would not get pulled over.” He was driving without a license. [ 19 ] All of the above are significant indicators of the accused’s level of moral culpability justifying the sentence of 12 months of incarceration that was imposed. [ 20 ] Moreover, the accused has two prior convictions (albeit dated) for driving with a blood alcohol concentration over .08.

He has a further, not insignificant, unrelated record for which he has previously served terms of incarceration. Even more concerning is the fact that the accused was convicted of four counts of breaching the recognizance(

s) on which he was released for this matter by driving a motor vehicle on one occasion and drinking on three occasions. He was also charged with, and convicted of, the offence of assault during the time he was pending on this matter. While his record is not an aggravating factor, it disentitles him to leniency. [ 21 ] In the result, I would dismiss the appeal. JA I agree: JA I agree: JA