Docket: CACR2223 Her Majesty the Queen Appellant - v. -, 2013 SKCA 77

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 77 Date: 2013-07-15 Between: Docket: CACR2223 Her Majesty the Queen Appellant - and - Kirk David Ross Respondent Coram: Jackson, Ottenbreit and Caldwell JJ.A. Counsel: W. Dean Sinclair for the appellant Ronald P. Piché for the respondent Appeal: From: Provincial Court

Heard: May 2, 2013 Disposition: Appeal allowed Written Reasons: July 15, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell Ottenbreit J.A. I. INTRODUCTION [ 1 ] The Crown appeals the sentence imposed on Kirk David Ross who pled guilty to the following charges: 1. On or about November 19, 2011, operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol or a drug and thereby causing the death of Danika Clarke contrary to s. 255(3.1) of the Criminal Code ; 2.

On or about November 19, 2011, being bound by a probation order without reasonable excuse failed to comply with a condition of the order of keeping the peace and being of good behaviour contrary to s. 733.1(1) of the Criminal Code ; 3. On or about June 21, 2012, being at large on a recognizance and being bound by a curfew to remain in an approved residence except for the purpose of employment as approved by the bail supervision officer or court, fail without lawful excuse to comply with the condition contrary to s. 145(3) of the Criminal Code ; and 4.

On or about July 28, 2012, being at large on his recognizance and being bound to comply with a condition to have no contact, direct or indirect, with Kelsey Janvier, Brenda Charles, Sharon Starblanket, Melvin Knife, Darlene Fiddler, Linda Turner and Christopher Roberts fail without lawful excuse to comply with the condition contrary to s. 145(3) of the Criminal Code . [ 2 ] On the first charge, the Provincial Court judge imposed a sentence of 24 months incarceration, which after a credit for remand of four months left 20 months to serve. In addition, Mr.

Ross was made subject to an 18 month probation order, a three year driving prohibition, a $500 surcharge, a DNA order and a 10 year firearms prohibition. On the second charge, he received a sentence of 30 days incarceration consecutive to the first charge which was deemed time served. On the third charge, he received 31 days consecutive to all of the charges which was deemed time served. On the fourth charge, he received 30 days consecutive to all other charges which was deemed time served. The deemed time served on the last three charges accounted for an additional 91 days spent on remand.

In total the sentence imposed for all offences was 27 months before credit for remand time. [ 3 ] The Crown appeals on the basis that the sentences imposed are demonstrably unfit. II. FACTS AND BACKGROUND [ 4 ] On November 19, 2011, the respondent was driving in a residential area of Prince Albert. The posted speed limit at that location was 40 kilometers per hour. However, Mr. Ross’s vehicle was travelling at speeds in excess of 115 kilometers per hour. Mr. Ross hit 17-year-old Danika Clarke as she was crossing the street on foot. Ms. Clarke’s legs were severed on impact and she was thrown almost 80 meters.

She died instantly. [ 5 ] Mr. Ross did not stop after he struck Ms. Clarke. He continued on and rear-ended another vehicle causing that vehicle to be pushed into some parked cars. He then veered into the westbound lane and hit another vehicle head-on. There were four people inside that vehicle but luckily none of them were injured. Mr. Ross fled from the scene and police later located him at a house in the area where he was arrested. His blood alcohol readings were .192 milligrams per cent. At the time of the collision with Ms. Clarke, Mr.

Ross was bound by a probation order requiring him to keep the peace and be of good behavior. [ 6 ] Mr. Ross was eventually released in March 2012 on conditions, one of which was a curfew. On June 22, 2012, Mr. Ross was observed walking down the street at 9:25 p.m. in violation of his curfew condition. He was arrested and again released from custody on June 27, 2012, with conditions that he not have any contact with Kelsey Janvier, his girlfriend. [ 7 ] On July 28, 2012, the police went to Mr. Ross’s house to see if he was complying with the curfew and discovered that Ms. Janvier was living with him. Mr.

Ross was taken into custody and did not seek bail thereafter. In total, Mr. Ross was on remand for 211 days before sentence was imposed. [ 8 ] Mr. Ross has a serious record of breaches, i.e. , 11 failures to comply with a probation order over a 14 month period, but all of the breaches are tied to the same probation order, imposed as a sentence for a shoplifting charge. No details are provided with respect to any of these breaches, which were often dealt with together and for only one of them did he receive anything more than a brief time served.

For the one for which he did receive additional time, he received a 30 day sentence only. [ 9 ] In the Court below, the Crown submitted that a sentence of 30 months incarceration should be imposed on the charge of

causing Ms. Clarke’s death, and that all of the 211 days that Mr. Ross spent on remand should be credited to the other offences and notthe causing death charge given his long record of breaching court orders. [10] Mr. Ross argued that the appropriate sentence for the driving charge was 18 to 20 months incarceration less 211 days spent onremand and a consecutive term of 45 days jail for the breaches. III. DECISION OF THE SENTENCING JUDGE [11] The sentencing judge described the circumstances of this case as extremely tragic.

He spent some time reading from the manyvictim impact statements which were filed attesting to the suffering and pain being experienced by Ms. Clarke’s family and friends. Hedescribed the death of Ms. Clarke, who was a young mother with one child, as a senseless and needless loss. [12] After noting that Mr. Ross had apologized and pled guilty, he moved on to reviewing the circumstances of Mr. Ross. He was23 years of age. He had what the sentencing judge described as a minimal criminal record. He also observed that Mr.

Ross came from asupportive, and perhaps even a privileged, background and had no related record and no driving record. He also considered ss. 718.1and 718.2 of the Criminal Code but observed that Mr. Ross’s counsel did not emphasize the Gladue or Ipeelee factors. [13] The sentencing judge noted that deterrence, both individual and general, and protection of the public were relevant factors. Healso noted that the rehabilitation of Mr. Ross was a relevant factor. He outlined the following factors as aggravating: 1. a reading of .192; 2. grossly excessive speed in a residential area in the City of Prince Albert; 3.

Mr. Ross was on probation when the offence was committed; and 4. he fled the scene of the accident. The sentencing judge indicated that Mr. Ross was remorseful. [14] He indicated that the sentencing range is broad for these types of offences and stated that the lower end of the range was 18months.

He concluded as follows: After having considered the tragic circumstances, the aggravating factors, the accused’s criminal record, and the accused’s youth, I amsatisfied, having considered the cases, as well, that were filed by counsel, that a sentence generally in the range of 18 months to 24 years-- 24 months -- sorry -- would be appropriate in these circumstances. This offender has spent 211 days presentence custody. After awarding a four month credit for pre-sentence custody, he imposed a further 20 month custodial sentence on the impaired drivingcausing death offence.

He credited the rest of the pre-sentence custody to the other offences. IV. ISSUES [15] The Crown states four points in issue: 1. The sentencing judge failed to impose a sentence which was proportionate to the gravity of the offence and degree ofresponsibility of Mr. Ross; 2. The sentencing judge failed to impose a sentence which adequately reflected the need to denounce crimes and deter others fromcommitting similar ones; 3. The sentencing judge failed to impose a sentence that was similar to other sentences imposed on similarly situated offenders whocommitted similar crimes; and 4.

The sentence was demonstrably unfit. In the Crown’s factum, these points have been collapsed into one, “The Trial Judge’s Errors of Principle” (para. 38). V. ANALYSIS 1.

Sentencing Objectives in Impaired Driving Death Cases [16] The Crown submits that impaired driving causing death mandates emphasis of denunciation and general deterrence over othersentencing objectives and, in support of this proposition, cites legislative change imposing more severe sentences as a clear emphasis ofthese objectives and appellate courts across the country responding to such changes by significantly increasing the ranges for thisoffence. [17] In R. v. Schneider (1994), (SK CA), 123 Sask. R. 162 (Sask. C.A.), the accused had no criminal record andno problem with alcohol abuse.

His level of impairment was low but he nevertheless ran a red light causing a collision. The accusedappealed his 15 month term of imprisonment for impaired driving causing death. This Court dismissed the appeal.

[18] In R. v. McDonald, (SK CA), [1997] 4 W.W.R. 318 (Sask. C.A.), the accused had been convicted andsentenced for criminal negligence causing death rather than impaired driving causing death. The Court indicated that the samesentencing principles applied as in a case of impaired driving causing death. Ms. McDonald had a previous conviction for impaireddriving and an extremely high level of impairment. She drove directly into a group of people.

The Court set aside the two yearsuspended sentence imposed at trial and imposed a sentence of 18 months incarceration, observing that, except for certain personalcircumstances, the fit minimum sentence would have been two years imprisonment. [19] In R. v. Keller (1997), (SK CA), 158 Sask. R. 181 (Sask. C.A.), the accused received a sentence of two yearsless a day for impaired driving causing death. Ms. Keller drove at twice the speed limit and her blood alcohol level was more than twicethe legal limit. She was 22 years old and this was her first conviction.

In rejecting her appeal, this Court emphasized that denunciationand deterrence were important factors in sentencing this kind of charge. [20] In R. v. Trobert, 2000 SKCA 113, 199 Sask. R. 224, the accused, who had a previous .08 and driving while disqualifiedconviction as well as some speeding convictions, was convicted of impaired driving causing bodily harm and sentenced to two years lessa day in prison. This Court dismissed the accused’s appeal. [21] In R. v.

Galloway, 2004 SKCA 106, [2005] 1 W.W.R. 54, the accused and the Crown both appealed a sentence of two years andsix months incarceration for impaired driving causing death. The accused had a previous .08 conviction and some speeding convictionsas well. Although there was no excessive speed, there was grossly erratic driving involved. The sentencing judge stated that the rangefor this offence was 15 months to three years. The sentence appeal was dismissed without comment by the Court on the correctness ofthe range. [22] In R. v. Kahpeepatow (1991), (SK CA), 97 Sask. R. 90 (Sask.

C.A.), a mother of five children, who hadone dated conviction for impaired driving and a recent “string of convictions for driving without a license”, had her sentence increasedfrom two years less a day to three years for impaired driving causing death. In that case the Court stated: [13] The long and short of it is that we can find very little in the circumstances of this case to distinguish it from others, especially that ofPaul, or to warrant a departure from the range of sentences being imposed in the province for this offence, when committed incircumstances such as these.

To sustain the sentence would serve in our respectful view to introduce disparity and to suggest, perhaps, asoftening in approach at a time when all of us are being continuously reminded of the grave dangers attendant upon drinking and driving. [23] In R. v. Paul (1991), (SK CA), 89 Sask. R. 199 (Sask. C.A.), the accused appealed his five year sentence. He had killed a 15-year-old teenager on a highway east of Regina. Mr. Paul was grossly intoxicated and was driving on the wrong sideof the divided highway, striking three vehicles and killing the victim in the last one.

He had one previous conviction for impaireddriving. The Court reduced his sentence to four years imprisonment. [24] In R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12, the accused appealed his sentence of six years for one count of impaireddriving causing death and one count of causing bodily harm. Mr. Bear had a record, including three previous convictions for drivingwith more than 80 mgs. of alcohol in his blood (1991, 1993 and 1998) and two previous convictions for driving while disqualified (1995and 1998).

Referring specifically to the 2001 amendments, Smith J.A. for the Court wrote: [57] While I agree that the sentence imposed was at the high end of the available range, I am unable to conclude that it was outside therange available on the circumstances of this case. Many of the cases cited by the appellant predate the 2001 amendment to this

section ofthe Code. Circumstances also vary widely in terms of the manner of driving, the degree of impairment, the previous criminal record inrelation to alcohol related offences and whether, by way of mitigation, the accused has accepted responsibility and shown remorse. In the result, she was unable to conclude that a sentence of six years was outside the appropriate range of sentences. [25] It is common ground that in the last 30 years, drinking and driving laws have been amended to aid police in the detection ofimpaired drivers and to generally increase the sentences which can be imposed on impaired drivers.

Legislative examples of this are theincreased maximum sentence for impaired driving causing death from 14 years imprisonment to life in 2001, amendments to theCriminal Code in December 2007 which precludes conditional sentences for impaired drivers causing death, and amendments in 2008which raised the minimum sentence plateau for drinking and driving offences.

However, despite strong penalties imposed by Parliament,drinking and driving offences continue to be a societal problem. [26] The range of sentencing for this offence has always been necessarily broad to account for the myriad of individualcircumstances of the offence and offender, and give effect to the fundamental principle of proportionality. These circumstances include,without defining them exhaustively, manner of driving, degree of impairment, previous criminal record in relation to alcohol offences,and whether by way of mitigation the accused has accepted responsibility and shown remorse.

However, an offence of impaired drivingcausing death can never fully be described as one of lower gravity even at the lower end of the sentencing spectrum because, after all, aperson has been killed as a result of the accused’s actions. Denunciation and deterrence continue to be the primary sentencing objectivesfor this kind of offence.

Nevertheless, rehabilitation cannot be totally ignored and is still a proper objective to factor into the sentencingmix. [27] It is noted that the Crown invited the Court to establish or recognize a range of two to five years imprisonment for first timeoffenders convicted of impaired driving causing death (Crown factum, para. 44). This is not, however, the appropriate case to examinethis issue in light of the Crown’s position with respect to sentencing in the within matter in the Provincial Court. 2.

Errors of Principle [28] This appeal must be determined applying the standard of review set out by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500: absent an error in principle, failure to consider a relevant factor, or an overemphasis of theappropriate factors, an appellate court should not interfere with sentence unless it is demonstrably unfit.

[ 29 ] In its submissions to this Court, the Crown argued essentially that the sentencing judge did not give effect to the fundamental principle of sentencing which is proportionality ( s. 718.1 of the Criminal Code ) and that he failed to impose a sentence that would serve to denounce the offence and to deter this offender and others ( s. 718 (

a) and (

b) of the Criminal Code ) and, speaking overall, the sentence was demonstrably unfit, permitting appellate intervention pursuant to s. 687(1) of the Criminal Code . [ 30 ] The Crown, however, considers itself bound by the upper limit of 30 months for the impaired driving charge, asking that the sentence nonetheless be increased to that amount, and submitting that all of the remand time be applied to the breach of probation and the two breaches of recognizance—which is the position it took in the Provincial Court. [ 31 ] There were many aggravating features which justify Mr. Ross receiving a substantial sentence.

He was on probation at the time and was prohibited from consuming alcohol. His blood alcohol level was .192, which brings s. 255.1 of the Criminal Code into play. He took the life of a bystander. The accident reconstruction expert estimated that Mr. Ross’s speed exceeded 115 kilometres per hour at the time of impact. Mr. Ross was driving in a residential area where the speed limit is 40 kilometres per hour. After striking and immediately causing the death of Ms. Clarke, Mr. Ross’s vehicle struck two other vehicles. (The occupants of those vehicles were unhurt, but nonetheless traumatized).

He then fled the scene of the crime and was not found by the police for another hour. After having been released on bail, he breached his recognizance twice. [ 32 ] Mr. Ross’s efforts toward rehabilitation, his young age (22 years old at the time of the offence), no related or driving record and his remorsefulness are mitigating. Upon being discovered by the police, he immediately admitted he was the driver of the vehicle in question.

He ultimately did plead guilty and gave a heartfelt apology to the victim’s family. [ 33 ] Given the aggravating features of this offence committed in these circumstances with this offender, a sentence of 24 months simply does not meet the fundamental principle of sentencing, being proportionality. It does not give effect to the gravity of the offence and the degree of responsibility of the offender or give effect to the objectives of deterrence or denunciation. Further, a sentence of 24 months is demonstrably unfit.

In light of these conclusions, the sentence for impaired driving causing death must be set aside. [ 34 ] In considering what a fit sentence would be in these circumstances, if the Court were unfettered, a sentence of three or four years may have been in order. We, however, are constrained by the 30 month limit which was the basis upon which the guilty plea was obtained. With that limit in mind, and to give effect to the principles of sentencing mentioned above, this Court must impose a sentence of 30 months—the maximum allowable in the circumstances. [ 35 ] Mr. Ross was also sentenced on three breach charges.

He continued to violate court orders even after he was charged with causing Ms. Clarke’s death and did that twice. [ 36 ] The Crown argues that the sentencing judge’s position that 15 previous offences for violating bail and probation orders was a minimal record was demonstrably in error and by imposing the same length of sentences that were imposed on him for violating a probation order two months before he killed Ms. Clarke, the sentences were demonstrably unfit. The Crown sought global sentences of seven months for all of these charges and argued that Mr.

Ross’s remand time should be allocated to them. [ 37 ] Although I agree that Mr. Ross’s record of breach offences is not minimal, all of the breaches are tied to the same probation order, imposed as a sentence for a shoplifting charge and no details are provided with respect to any of these breaches.

The Court must also be cognizant of the fact that, while the breach of probation was serious, resulting in the primary offence, the two breaches of recognizance were comparatively minor, i.e. , being found outside his residence 25 minutes past his curfew and permitting his girlfriend, who was on the no-contact list, to stay with him. In this context, I cannot say that the sentences imposed for the breach charges are themselves unfit or that the allocation of remand time with respect to them is inappropriate. [ 38 ] In this case, I am also mindful of the principle of totality set forth in s. 718.2 (

c) of the Criminal Code . To accept the Crown’s argument that a seven month sentence should be imposed for the breaches would also render the sentence, as a whole, unreasonable. [ 39 ] When looked at as a whole with the 30 month sentence for the s. 255(3.1) charge, Mr. Ross is sentenced to a total of 33 months incarceration for all charges before his 211 day credit for time spent in remand. VI. CONCLUSION [ 40 ] The appeal of the Crown respecting the s. 255(3.1) charge is allowed and the sentence is set aside.

A sentence of 30 months for this charge is imposed, which after credit for remand time not allocated to the breach charges, is 26 months. The probation order is set aside. All other ancillary orders remain in place. The sentence appeal from the remaining three convictions is dismissed. [ 41 ] I understand from the submissions of Mr. Ross’s counsel that his client has done well in the provincial correctional system. If it is possible for Mr. Ross to remain in the provincial system, and he wishes to continue to do so, I would recommend to the appropriate authorities that they consider permitting this to occur.

DATED at the City of Regina, in the Province of Saskatchewan, this 15 th day of July, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.

I concur “Jackson J.A.” Jackson J.A. I concur “Caldwell J.A.” Caldwell J.A.