Docket: 1869 Jesse Curniski also known as Adam Andrew Anderson Appellant - v. -, 2010 SKCA 155

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 155 Date: 20101209 Between: Docket: 1869 Jesse Curniski also known as Adam Andrew Anderson Appellant - and - Her Majesty the Queen Respondent Publication Advisory: These reasons for decision contain the details of offences committed under the Youth Criminal Justice Act . Coram: Lane, Jackson and Richards JJ.A. Counsel:

Brad Tilling for the Appellant Kim Jones for the Crown Appeal: From: Provincial Court Heard: December 9, 2010 Disposition: Allowed in part (orally) Written Reasons: December 21, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson Richards J.A. I. Introduction [ 1 ] Mr. Anderson pled guilty to two charges of driving while disqualified, contrary to s. 259(4) of the Criminal Code , and two charges of failing to comply with release conditions.

He received a four-month jail sentence and a one-year driving prohibition on the first driving while disqualified charge and an eight-month consecutive, one-year driving prohibition and 18 months probation on the second. A sentence of “time served” was imposed with respect to the breach of conditions charges. Mr. Anderson appealed to this Court arguing that his sentence was too severe and failed to respect the principle of parity. We dismissed the appeal (save for one point explained below) following oral argument. These reasons confirm those given in the court room. II. Some Background [ 2 ] Mr.

Anderson was involved in a car accident at the age of four months and, as a result, suffered a head injury and was left with a paralyzed right arm. He has cognitive limitations in areas that are central for driving including vision, visual perception, information processing and responding to visual input and multiple stimuli. [ 3 ] In 2005, at age 16, Mr. Anderson was the driver of a vehicle in which five friends were passengers. He was travelling at a high rate of speed on Highway 4 near North Battleford and caused a head-on collision. Three people died and others received serious injuries. Mr.

Anderson pled guilty to three counts of dangerous driving causing death and three counts of dangerous driving causing bodily harm. He received a sentence of two years open custody (less time served). The judge also imposed a 10-year driving prohibition citing what was described as Mr. Anderson’s “incorrigible desire to do whatever it takes to operate a motor vehicle” and his “undeniably dangerous inability” to drive safely. [ 4 ] Mr. Anderson’s licence was suspended by SGI for medical reasons after the accident. He appealed the suspension but was unsuccessful in having it reversed.

A Driver Evaluation Assessment Report found him “not fit to drive.” [ 5 ] Mr. Anderson then changed his name (up until this point his name had been Jesse Anderson-Curniski) and wrote his learner’s licence examination. SGI learned of this and contacted him to confirm his medical suspension and advise that the learner’s licence had been issued improperly. [ 6 ] The first driving while disqualified offence underpinning this appeal occurred on November 19, 2009. Mr. Anderson drove a car on a Ring Road entry ramp in Regina in a manner that involved crossing a double line at high speed.

This caused two trucks to sound their horns as there was a near collision. [ 7 ] Ten days later, on November 29, 2009, Mr. Anderson was stopped while driving a different vehicle in Saskatoon. This gave rise to the second driving while disqualified charge.

[8] Mr. Anderson was released from custody on strict conditions. One was that he not be outside his residence unless in the company ofDonna Thibeault or Eric Ruda. He was also not to own, operate, possess or control a motor vehicle or to be in a motor vehicle unless inthe company of Ms. Thibeault or Mr. Ruda. [9] The first breach of conditions charge arose when it was discovered that, contrary to the terms of Mr. Anderson’s release, a vehiclewas registered in his name. The second failure to comply charge arose when the police observed a vehicle pull up to Mr. Anderson’sresidence.

He was in the back seat but neither Ms. Thibeault nor Mr. Ruda were with him, as required by the terms of his release. III. The Sentencing Decision [10] The sentencing judge expressed sympathy for Mr. Anderson’s problems. She requisitioned a pre-sentence report so as to be able tomore fully understand his circumstances. [11] The sentencing judge observed that Mr. Anderson could not be fairly said to be a serial disqualified driver of the type typicallyconsidered in the case law.

She examined the possibility of a conditional sentence order, both with and without electronic monitoring,but concluded neither option was appropriate because of the danger Mr. Anderson posed to the community. Then, referring to thehistory of the charges, Mr. Anderson’s lack of insight, poor impulse control and fixation on driving, she said it was necessary toemphasize deterrence, denunciation and the object of promoting a sense of responsibility in Mr. Anderson. She concluded the first stepin Mr.

Anderson’s rehabilitation was the need for him to finally acknowledge the criminality of his driving and for him to accept that hecannot operate a motor vehicle. She said it was necessary for that first step to be taken in a custodial facility. In the end, she imposedthe sentences described above. IV. Analysis [12] Mr. Anderson’s counsel seeks to overturn the sentence imposed below by reliance on the principle of parity as described in s.718.2(

b) of the Criminal Code: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [13] Counsel says there is no Saskatchewan case where an offender has been sentenced to jail for a first or second driving whiledisqualified offence. He stresses that Mr. Anderson has not driven since the second driving while disqualified charge was laid inNovember 2009, that he is youthful and that he has no previous record for driving while disqualified. [14] There are only limited grounds on which this Court can intervene with respect to a sentencing decision.

Absent an error in principle,failure to consider a relevant factor, or an overemphasis of appropriate factors, we may interfere with a sentence only if it isdemonstrably unfit. See: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500. [15] As recognized by the sentencing judge, Mr. Anderson is not the typical serial “driving while disqualified” offender considered incases like R. v. Bear, (SK CA), [1994] 9 W.W.R. 1 (Sask. C.A.); R. v. Kakakaway (1998), (SKCA), 168 Sask. R. 306 (C.A.); or R. v. Wolfe, 2008 SKCA 66, 310 Sask. R. 220.

He is disqualified from driving by virtue of a court-ordered prohibition but, in addition, he is also medically unfit to drive. This raises unique concerns because Mr. Anderson is necessarilya danger to the public whenever and wherever he gets behind the wheel. This is demonstrated by his short but extremely serious offencerecord. As a consequence, the doctrine of parity in sentencing is of little significance here. The authorities referred to us do not involve“similar offenders” in “similar circumstances” within the meaning of s. 718.2(

b) of the Code. [16] With the one exception noted below, we can see no reviewable error in the approach taken by the sentencing judge or in thesanctions she imposed. She made no error of principle. She considered the relevant sentencing factors and, in light of the unusualcircumstances of this case, she imposed a sentence which cannot be characterized as being demonstrably unfit. V. Credit for Remand Time [17] Mr. Anderson was in custody for two separate periods of time prior to sentencing. The first was from November 29 to December14, 2009. The second was in the spring of 2010. The sentencing judge gave Mr.

Anderson credit for only the latter period. This appearsto have been a simple oversight. Accordingly, using the standard “two for one” formula applicable to the timeframe in issue, Mr.Anderson should have received an additional 32 day credit against his sentence.

VI. Conclusion [ 18 ] Mr. Anderson’s jail term in relation to the second driving while disqualified conviction should be reduced by 32 days. The other aspects of the sentences imposed in respect of the four convictions underpinning this appeal remain unchanged.