R. v. Brackenreed, 2010 MBQB 24 (CanLII)
[17] Learned counsel for the appellant referred me to a number of decisions.
[18] In R v. Denney, [2007] N.J. 218 (Prov. Court), there were convictions for dangerous driving and flight from a peace officer. This appellant and Ms. Denney share many of the same characteristics: the conduct was out of character and neither had a record. Total fines of $1,250. 00 were imposed.
[19] In R. v. Hardy, [2005] N.J. No. 92 (Prov.Court), there was a chase of approximately 200 metres in a city setting. Passing of sentence was suspended for a period of six months.
[20] In R. v. Zadorozniak, [2008] S.J. 472 (Q.B.) there was a 3 or 4 block pursuit through a residential area. Speeds were high. A conditional discharge was granted.
[21] A decision of the Manitoba Provincial Court was made by Judge Elliot in 2004 (R. v. Martin, CR 04-01-25181). This was a flight from police in a rural reserve over a distance of 1.5 kilometers. A period of probation of one year was the disposition on the flight charge and 14 days incarceration on a breathalyzer charge.
[22] Learned Crown counsel cited four decisions from Manitoba courts.
[23] In R. v. Gibson, 1988 CarswellMan 446 (M.C.A.), the accused had a prior record. He was under the influence of alcohol and was disqualified from driving. There was a 20 kilometer high speed chase in which he evaded a roadblock and attempted to hit police cars. There was a one year period of incarceration.
[24] R. v. Sorokowski, 1990 CarswellMan 446 was another decision of the appellate court of this province. It confirmed the sentence of one year incarceration for a chase through downtown Winnipeg.
[25] The accused in R. v. Emes, 1990 CarswellMan 129 (M.C.A.) was sentenced to six months in jail for a chase through a city ending in a collision with a police vehicle.
[26] In Hannibal, 1994 CarswellMan 317 (M.C.A.), a sentence of three months to be served intermittently was upheld. This was a police chase on a highway for 15 to 18 miles. The accused also pled guilty to a breathalyzer offence. The Court emphasized that this sentence was on the low end of the acceptable range.
[27] In all of these cases the police chase resulted in a plea of guilty to dangerous driving, the offence under section 249.1, which is the subject of this appeal, not having been in existence at the time those cases were decided.
[28] Crown counsel cited seven cases from jurisdictions other than Manitoba.
[29] In McLean 2004 ABCA 353 (CanLII), (2004), 190 C.C.C. (3d) 472 (A.C.A.) the accused was sentenced to a 24 month conditional sentence order after a police chase. This case is not helpful as the pleas were to motor vehicle flight, dangerous driving and resisting a police officer.
[30] Two Alberta appellate decisions ((K.) J. (1992), 37 M.V.R. (2d) 66 and N. (A.J.) reflex, (1994), 157 A.R. 273) stand for the principle that youth who are in possession of stolen cars and become involved in a high speed police chase will go to jail. These cases are clearly of no help in determining this accused’s sentence.
[31] Similarily, Breton (2004), 8 M.V.R. (5th) 180 (A.C.A.) dealt with bodily harm during a flight and is not applicable to these facts.
[32] In Saskatchewan in the case of Holmgren (1987), 3 M.V.R. (2d) 129 (C.A.) the court commented that jail sentences of 6 to 9 months are imposed for offences arising from high speed chases.
[33] In R. v. Hurley (2006), 40 M.V.R. (5th) 53 (Ont. Ct. Jus.) there was a sentence of three months for flight from police. This was an 8 km chase; it was out of character and the accused had no prior record.
[34] Finally, the Newfoundland Supreme Court (Trial Division) sentenced an accused with no record to 60 days incarceration for a chase through residential areas (R. v. Estell reflex, (1993), 113 Nfld. & P.E.I.R. 203).
[35] I have noted that many of the decisions cited by the Crown are dangerous driving convictions. The offence before the court is pursuant to section 249.1 of the Code. This offence became law in 2000. Prior to its creation, all flight from police offences were brought as dangerous driving (section 249 of the Code). The penalties are the same under both sections.
[36] I have therefore concluded that sentence precedents, prior to 2000, of dangerous driving involving flight from police are helpful in my consideration of this sentence appeal.
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