R v Anderson, 2017 MBCA 31

Citation: R v Anderson, 2017 MBCA 31 Date: 20170309 Docket: AR16-30-08604 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: ) C. R. SavageHER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) M. R. Schwartz and ) M. A. J.

Kruse- and - ) for the Respondent ) STEPHEN JADE ANDERSON ) Appeal heard: ) January 25, 2017 (Accused) Respondent ) ) Judgment delivered: ) March 9, 2017 On appeal from 2016 MBPC 28 STEEL JA [1] This is a Crown appeal as to sentence. [2] The accused pleaded guilty to one count of driving over 80 mg causing bodily harm, contrary to section 255(2.1) ofthe Criminal Code.

Taking into account a variety of mitigating factors, but in particular, the Gladue principles, the sentencing judgeimposed a 90-day intermittent sentence, followed by three years of supervised probation and 100 hours of community service (R vGladue, (SCC), [1999] 1 SCR 688). [3] The Crown argues that the sentence is unfit given the manner of driving, the level of intoxication and the need forgeneral deterrence, and that the sentencing judge erred in her consideration and characterization of the aggravating and mitigatingcircumstances relevant to the sentence.

Facts [4] The accused drove his vehicle on the wrong side of the Perimeter Highway towards oncoming traffic, colliding with avehicle and injuring the driver and two passengers. The driver of the other vehicle switched lanes in an attempt to avoid a head oncollision. He moved his vehicle as far to the left as he could, given the presence of the concrete barrier and then came to a completestop. The accused had been travelling at 105 kilometres per hour but braked about a second prior to the collision, slowing to 77kilometres per hour on impact.

The accused’s blood alcohol content (BAC) was at least 185 mg of alcohol, more than double the legal

limit. A search of the accused’s vehicle revealed an open 355 ml can of Budweiser beer and a broken Budweiser king can. He greeted the paramedics with jokes and “high fives”. [ 5 ] The accident was quite serious, resulting in injuries to the driver of the other vehicle and his passengers. One passenger was rendered unconscious. The driver and that same passenger had to be extricated using the Jaws of Life. The other passenger missed one week of school and one month of work. One suffered a skull fracture and a fractured left hand.

His brain injury resulted in headaches, physiotherapy and he was off work for a month and missed an entire semester of school. The driver, who was 21 years old at the time of the collision, was hospitalized for five days with a shattered knee cap, which required surgery and a leg brace followed by physiotherapy. He was laid off from his job as a result of not being able to meet the physical demands, and was not sure if he could become an electrician, which is what he was training to become at the time of the accident.

In addition to the physical injuries suffered by each passenger, each reported mental and emotional harm by reason of the accident. [ 6 ] The accused did not appear for his preliminary inquiry and, while a warrant was issued for his arrest at that time, it was later cancelled.

He also missed one of his later court dates and did not attend with respect to the preparation of his pre-sentence report so that it had to be reordered. [ 7 ] Besides pleading guilty to one count of driving while over 80 mg and causing bodily harm, he pleaded guilty to one count of failing to appear in court. [ 8 ] The accused had no previous record. He was 26 years of age at the time of the offence, with a wife and three young children. He is gainfully employed. He is registered with Indian and Northern Affairs as a treaty person from Fairford First Nation.

Though he originally came from Fairford First Nation and considers this his home, he also now considers Ebb and Flow to be his home. [ 9 ] At the time of the offence, the accused was living in Winnipeg by himself for work. His wife and children were still on the reserve and had not yet moved to Winnipeg. He was commuting back and forth to Ebb and Flow First Nation on the weekends and was feeling very lonely and isolated and began drinking as a result. [ 10 ] The pre-sentence report was quite favourable.

It emphasized his remorse and the fact that he attended all his meetings on time and was open and candid with the probation officer. It found that he was at a low risk to reoffend, recommended a community disposition and concluded that, “The subject accepts responsibility for his actions and at no time attempted to deflect blame for his behavior and the resulting consequences to anything other than his bad choices.” [ 11 ] With respect to his heritage, the report indicated that: The historical impact of colonization and of residential schools has affected the subject’s family.

There has been a devastating generational impact of [loss] of culture and identity which continues to affect the subject and both the communities he feels connected to. Though they struggled to discuss some [of] the issues that highlight the colonization that their community has suffered through, the family disclosed generational struggles and it is clear that substance misuse has become a means to cope. [ 12 ] At the sentencing, the Crown recommended a sentence of two years’ custody. The accused asked for a 90-day custodial sentence, to be served intermittently, followed by three years of probation.

The sentencing judge imposed a 90-day intermittent custody sentence. Probation was imposed for the periods of time when the accused was not in custody while the intermittent sentence was being served, plus three years after the intermittent sentence was completed. The sentencing judge also imposed a two-year driving prohibition, a ten-year weapons prohibition and ordered the accused to provide a sample of his DNA.

Argument of the Parties on Appeal [ 13 ] The Crown argues that the sentencing judge failed to adequately address the principles of general deterrence and denunciation with respect to an offence in which those principles are to be given primacy.

While the Crown acknowledges that the Gladue principles are to be given consideration in this case, it submits that they were overemphasized and that the aggravating factors were mischaracterized. [ 14 ] The accused submits that the sentencing judge has taken a restorative justice approach to the sentencing of indigenous offenders and such an approach incorporates the principles of general deterrence and denunciation. An intermittent sentence is indeed an incarceratory one. The period of three years of probation can be seen as part of the restorative approach to sentencing.

It takes into account general deterrence by forcing the individual to take responsibility for his actions. The accused will continue his programming and begin treatment for his alcohol problems. He has completed an apology letter to his victims. Furthermore, restorative approaches to sentencing encourage offenders to “pay back the community,” in this case, by imposing 100 community service work hours. Therefore the sentence meets the objectives of denunciation and deterrence while balancing them against the restorative sentencing objectives outlined in Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 .

Analysis and Decision [15] In R v Park, 2016 MBCA 107, I set out the applicable standard of review in sentence appeals (at paras 5-6): The standard of review in sentencing decisions is well-known. This Court should not intervene unless the judge committed an error inprinciple or the sentence is demonstrably unfit.

An error in principle includes failing to consider a relevant factor, taking into account anirrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. “Demonstrably unfit” inthe sentencing context refers to a sentence falling outside the acceptable range of sentences under similar circumstances. If an error in principle has occurred, the appellate court need not extend deference to the original sentence.

The appellate court can lookat the matter from a fresh perspective and impose the sentence that it deems appropriate in the circumstances or the appellate court mayfind that, notwithstanding the error in principle, the original sentence is still fit and uphold that sentence. Minor errors of principle willnot justify intervention. It is only where the error has had a material impact on the sentence imposed that the appellate court shouldintervene.

See R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220; R v Sidwell (KA), 2015 MBCA 56 at paras 12-13,319 ManR (2d) 144; and R v Lacasse, 2015 SCC 64 at para 11, [2015] 3 SCR 1089. [16] This is a difficult appeal. On the one hand, the sentencing judge is entitled to deference in her decision to apply theGladue principles so as to avoid lengthy incarceration for this individual.

This Court has stated on many occasions that the Gladueprinciples need to be given more significant application in our courts if the intention of the Supreme Court of Canada in Gladue andIpeelee is to have any impact in our justice system. [17] I agree that the principles of sentencing include the principles of restorative justice, especially with respect toindigenous offenders.

In appropriate circumstances, restorative justice can take into account all the principles of sentencing in a way thatnot only heals the individual, but makes his or her community whole again as well. [18] As the Supreme Court of Canada indicated in Gladue (at paras 43, 70): The concept of restorative justice which underpins paras. (d), (e), and (f) . . . as a general matter restorative justice involves some form ofrestitution and reintegration into the community. [M]ost traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice.

This tradition isextremely important to the analysis under s. 718.2(e). [19] The Court goes on to explain that restorative justice (at para 71): “may be described as an approach to remedying crimein which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or atleast which it is felt should exist.” [20] On the other hand, “[d]espite countless awareness campaigns conducted over the years, impaired driving offences stillcause more deaths than any other offences in Canada” (R v Lacasse, 2015 SCC 64 at para 7, [2015] 3 SCR 1089).

That is why generaldeterrence is a prime objective in the sentencing for these offences. In R v Smoke, 2014 MBCA 91 at para 51, 310 ManR (2d) 123, thisCourt said the range of sentence for impaired driving causing bodily harm was six to 24 months. This is true even though individualdeterrence may not be necessary (see R v McVeigh (1985), (ON CA), 11 OAC 345). Authorities that pre-date Smokeare of limited value given that the appropriate range for impaired driving causing bodily harm was increased.

See Smoke at para 51. [21] I agree with the sentencing judge that the appropriate sentence is one that balances denunciation and deterrence, butalso rehabilitation, especially when Gladue factors are at play. Even for offences where denunciation and deterrence are emphasized,courts must still apply Gladue. As well, as the sentencing judge indicated, a range is a guideline only, not a straight-jacket (see para 24),and may be departed from in appropriate circumstances. See also Lacasse at para 57. [22] The question for this appeal is whether these were the appropriate circumstances. I find that they were not.

I agreewith the Crown that the sentencing judge minimized or mischaracterized several aggravating factors. [23] First, the sentencing judge correctly referred to the accused’s BAC as being aggravating, but failed to further considerhis gross intoxication and, in fact, considered the fact that he slammed on his brakes at the last second as a mitigating factor. [24] Different people can be differentially impaired by the same BAC.

In this case, the accused was driving on the wrongside of the road with open beer in the vehicle, slammed on the brakes approximately one second before impact and collided with astationary car. His level of intoxication was so high that he had little memory of what occurred and no explanation as to how it was thathe was driving into oncoming traffic on the wrong side of the highway. Slamming on the brakes at the last second was

an act of self-preservation, not

an act worthy of being considered a mitigating factor. [25] It could very well be that the jokes and attempted high fives with the paramedics after the collision were not indicativeof a callous or flippant attitude towards what had just occurred and therefore not aggravating, but it certainly emphasized his degree ofintoxication.

[ 26 ] Second, staying at the scene of the accident is not a mitigating factor, it is an absence of an aggravating factor. It is a criminal offence to leave the scene of an accident. [ 27 ] Third, the accused did not enter an early guilty plea as a result of being remorseful. He pleaded guilty 18 months after the offence, after failing to attend his preliminary inquiry. He then further delayed matters by failing to participate in the preparation of his pre-sentence report.

He was charged with failing to attend court and spent five days in the Remand Centre in October of 2015. [ 28 ] Last, the sentencing judge notes that being detained for a week in October 2015 “appears to have brought home to [the accused] the need to begin addressing his alcohol consumption” (at para 18). Yet, while the collision occurred in September 2013, the accused continued to drink and never sought treatment prior to the May 2016 sentencing. [ 29 ] This case is similar to that of R v Rossi , 2016 ABCA 43 , 612 AR 183 .

That was also a Crown appeal from a sentence of 90 days’ intermittent custody followed by a two-year probation order imposed after a guilty plea to three counts of driving causing bodily harm. The accused in that case was a “sympathetic offender, a genuinely remorseful young aboriginal man with no adult criminal record, who was gainfully employed and expecting a child, now born” (at para 4). There also, the sentencing judge declined to treat Mr. Rossi’s BAC as aggravating because the fact it was above .08 was a component of the offence, but the Alberta Court of Appeal held that “the fact Mr.

Rossi had more than one and a half times the legal limit of alcohol in this blood was a proper consideration” ( ibid ). The Court concluded in that case that (at para 6): An intermittent 90-day sentence, with probation, cannot be considered to be proportionate for the deliberate act of driving in these circumstances, with the obvious, apparent and inherent resulting danger thus created. The laudable goal of rehabilitation should not have been allowed to so completely outweigh the sentencing objectives of deterrence and denunciation.

We have no difficulty in accepting the Crown’s suggestion that a minimum 12 [month] period of incarceration would have been a fit sentence in this case. [ 30 ] The accused argues that in the Rossi case, even though the accused was an indigenous individual, there was no significant discussion of the Gladue factors.

I accept that not only should the Gladue factors be considered in every case involving an indigenous offender, but that in this particular case, the pre-sentence report confirms that substance misuse as a coping mechanism by the accused is a generational problem for his family as a result of the impact of residential schools. I also accept that given the mitigating factors discussed, especially that of Gladue , a sentence in the lowest end of the range is warranted. However, the sentencing judge in this case unduly minimized the aggravating factors which must be balanced against the mitigating factors.

There will be cases where such a departure from the guidelines is warranted. This is not one of them. In this case, a six-month period of incarceration is a fit sentence. Reincarceration [ 31 ] Stays of sentence are sometimes granted in successful Crown sentence appeals. If the court finds that the sentence imposed at trial was unfit, it imposes what it considers a fit sentence, but then exercises its discretion to avoid the injustice that would result from reincarcerating the offender who has served the original sentence and has gotten on with his or her life.

See , for example R v McMillan , 2016 MBCA 12 , 326 ManR (2d) 56 ; R v Veysey , 2006 NBCA 55 , 303 NBR (2d) 290 ; and R v Smickle , 2014 ONCA 49 , 317 OAC 196 . [ 32 ] In deciding whether it would result in an injustice to reincarcerate the offender, an appellate court may take into account a number of factors, including, but not limited to: 1. The reasons for any delay between the date of arrest and the date the appeal sentence was imposed ( R c Clarke , 2015 QCCA 1995 ); 2.

The time that has elapsed from the imposition and completion of the sentences at trial ( R v Clouthier , 2016 ONCA 197 at para 63 , 346 OAC 162 ); 3. The gravity of the offence ( McMillan at para 37 ); 4. The rehabilitative steps taken by the accused, both before and after sentencing, and the degree to which those steps may be adversely affected by reincarceration; and 5. The length of sentence remaining to be served (i.e., the difference between the new sentence and the original sentence).

[ 33 ] These factors are to be used to assist the court in balancing the applicable purposes, objectives and principles of sentencing so as to end up with a disposition that is compatible with the overall purpose of contributing to respect for the law and the maintenance of a just and safe society (see , for example, R v Taylor , 2013 NLCA 42 at paras 64 , 66, 337 Nfld & PEIR 24). [ 34 ] This is one of those cases. There is no doubt that it was a serious offence which requires an emphasis on deterrence and denunciation. On the other hand, this accident happened almost four years ago on September 15, 2013.

The accused finished serving his sentence some months ago. He has permanent employment and is continuing his alcohol treatment. He has made connections with his indigenous background and he and his family have integrated themselves into the community in Winnipeg. Reincarceration would have a severely negative impact not only on him, but on his family.

As the sentencing judge indicated (at para 38): His move to Winnipeg from Ebb and Flow gained him steady full-time employment, but it is clear from the pre-sentence report that the family had financial constraints such that they could not afford to immediately move to Winnipeg together in September 2013. Since that time, the family has been reunited, allowing the children to attend school here. [ 35 ] His reincarceration would result in a loss of income to his family and a move back to the reserve, away from the resources Winnipeg provides.

He continues to express his remorse about the accident and his community service and probation will reinforce those feelings. Reincarcerating him at this point in time can only adversely affect his progress towards rehabilitation and can serve no purpose for society. Conclusion [ 36 ] I would grant leave to appeal and allow the appeal in part. I would substitute the 90-day intermittent sentence with one of six months’ incarceration. I would leave the other parts of the sentence intact, including the ten-year

section 109 Criminal Code weapons prohibition and the two-year driving prohibition as well as the period of three years of supervised probation with the conditions as imposed by the sentencing judge. [ 37 ] With respect to the six months’ incarceration, in view of the above reasons regarding reincarceration, I would stay the remaining custodial portion of the sentence. JA I agree: JA I agree: JA