R. v. Ruizfuentes, 2010 MBCA 90 (CanLII)
22 As a result of the recent amendments and the review of the case law, I conclude that the regular range of sentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking and driving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years. As for driving prohibitions, the cases show that for first offenders, the range is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban. Of course, these ranges are but guidelines and, as was recently explained in R. v. McCowan (K.J.), 2010 MBCA 45 (CanLII), 2010 MBCA 45, 251 Man.R. (2d) 295 by Steel J.A. (at para. 11):
.... Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v. McDonnell, 1997 CanLII 389 (S.C.C.), [1997] 1 S.C.R. 948. But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canada recently confirmed this basic principle in R. v. Nasogaluak, 2010 SCC 6 (CanLII), 2010 SCC 6, [2010 SCC 6 (CanLII), [2010] 1 S.C.R. 206] 251 C.C.C. (3d) 293, when it repeated that a judge can order a sentence outside of a guideline range so long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. See also, R. v. Sinclair (W.J.), 2009 MBCA 91 (CanLII), 2009 MBCA 91, 245 Man.R. (2d) 237 at para. 6.
First Offenders
R. v. Homer (L.), 2003 BCCA 15 (CanLII), 2003 BCCA 15, 179 B.C.A.C. 195: Three years of imprisonment for a 37-year-old who had a substance abuse problem. She lost control of her vehicle killing a teenage girl who was standing at an intersection. Her breathalyzer readings were .230 and .224.
R. v. Dalkeith-Mackie (J.D.), 2003 MBCA 144 (CanLII), 2003 MBCA 144, 180 Man.R. (2d) 175: Three years of imprisonment and a ten-year driving prohibition for a 19-year-old accused who pled guilty to two counts of impaired driving causing death and one count of impaired driving causing bodily harm. He was speeding and lost control of the vehicle. Two of his passengers died and one was injured. His breathalyzer readings were .100 and .090.
R. v. Shave (2005), 25 M.V.R. (5th) 285 (Man. P.C.): Two years less a day conditional sentence and a five-year driving prohibition for a 21-year-old who had no criminal record. His breathalyzer reading was over .200. He showed sincere remorse and had abstained from alcohol since the incident.
R. v. Bone, [2005] M.J. No. 75 (Q.B.) (QL): Two years less a day conditional sentence and a three-year driving prohibition for a 21-year-old accused who had no criminal record. Her breathalyzer reading was .200 and she was driving without a driver’s licence. Following the incident she enrolled in an alcohol treatment program.
R. v. Capuska (K.) 2005 CanLII 22806 (MB P.C.), (2005), 194 Man.R. (2d) 113 (P.C.): Two years less a day conditional sentence and a five-year driving prohibition for a 20-year-old accused who had no criminal record. Her breathalyzer reading was .150 and she was driving without a driver’s licence. Following the incident, she had not driven.
R. v. Munro, [2005] O.J. No. 3431 (C.A.) (QL): Three and one-half years’ imprisonment and a seven-year driving prohibition for a 37-year-old convicted of impaired driving causing death and impaired driving causing bodily harm. The accused had been drinking all day at a golf tournament and refused a ride home. The court noted that the accused’s blood alcohol reading exceeded 160 milligrams of alcohol in 100 millilitres of blood and that this is deemed to be an aggravating factor under s. 255(1) of the Code. The accused was an alcoholic and had a conviction for assault in 1986 and cultivating a narcotic in 1995.
R. v. Spence, [2006] M.J. No. 238 (P.C.) (QL): Two years less a day conditional sentence with an absolute curfew for the first 12 months of the sentence followed by a four-year driving prohibition for a 20-year-old accused who did not hold a driver’s licence and had double the legal blood alcohol content. The only matter on her criminal record was a discharge in 2003.
R. v. Howe (P.L.), 2007 NBCA 84 (CanLII), 2007 NBCA 84, 330 N.B.R. (2d) 204: Three years of imprisonment and a four-year driving prohibition for a 41-year-old who at first failed to stop at the scene, but 20 minutes after the collision called 911 and reported the accident. He pled guilty and was remorseful. The accused had a long-standing problem with alcohol.
R. v. LaChappelle, 2007 ONCA 655 (CanLII), 2007 ONCA 655, 226 C.C.C. (3d) 518: A 21-month period of imprisonment and a five-year driving prohibition for a 41-year-old police officer who lost his job as a result of the conviction. His blood alcohol was between 130 and 210 milligrams of alcohol in 100 millilitres of blood and there was some evidence of poor driving.
R. v. Gallant, 2008 PESCAD 1 (CanLII), 2008 PESCAD 1: An 18-month conditional sentence containing punitive conditions, plus two years’ probation and a two-year driving prohibition for a 39-year-old accused who pled guilty to the offence. A favourable pre-sentence report showed he was very remorseful and cooperative throughout. The victim impact statement was also generally favourable, noting his guilty plea and acceptance of responsibility. The accused had one prior conviction for common assault some 18 years earlier.
R. v. Ramage (R.), 2010 ONCA 488 (CanLII), 2010 ONCA 488: Four years of imprisonment and a five-year driving prohibition for an accused who was convicted of impaired driving causing death and dangerous driving causing death. An aggravating factor was that his blood alcohol level was very high, well beyond the blood alcohol level of .160 deemed by the Code to be an aggravating factor. There were many mitigating factors, including that he was an “outstanding member” of the community, was a dedicated husband and father, and was remorseful. The victim’s family had asked that he not be incarcerated. Doherty J.A., with some reluctance, affirmed a four-year sentence, writing (at para. 80):
... I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant’s exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge’s decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh [R. v. McVeigh, 1985 CanLII 115 (ON C.A.), (1985), 22 C.C.C. (3d) 145 (Ont. C.A.)] and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. This court must yield to the trial judge’s determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision. I would add that deferring is made much easier by the trial judge’s thorough reasons, which demonstrate a keen appreciation of all of the factors relevant to the determination of the appropriate sentence in this very difficult case.
R. v. Junkert (M.), 2010 ONCA 549 (CanLII), 2010 ONCA 549: Five years of imprisonment and a ten-year driving prohibition for an accused who was convicted of impaired driving causing death. He had no prior record. In affirming the sentence, O’Connor A.C.J.O. deferred to the sentencing judge’s decision because the sentence was not demonstrably unfit nor arrived at as a result of an error.
Second or Subsequent Offenders
R. v. Regnier (R.H.), 2002 SKCA 82 (CanLII), 2002 SKCA 82, 219 Sask.R. 316: Six years of imprisonment and a nine-year driving prohibition for criminal negligence in the operation of a motor vehicle causing death. While impaired, and with two and one-half times the legal limit, he drove on the wrong side of the road and was involved in a head-on collision. The accused had a lengthy record of alcohol-related driving offences.
R. v. Kaserbauer (P.), 2003 MBQB 28 (CanLII), 2003 MBQB 28, 171 Man.R. (2d) 230: One year of imprisonment, plus 18 months of probation followed by a three-year driving prohibition for an accused who had a prior drinking and driving conviction.
R. v. Hall 2007 ONCA 8 (CanLII), (2007), 83 O.R. (3d) 641 (C.A.): Four years’ and ten months’ imprisonment and a ten-year driving prohibition. As his breathalyzer tests were conducted more than two hours after the offence, his blood alcohol was estimated to be between 129 and 165 milligrams of alcohol in 100 millilitres of blood. He had a prior related record.
R. v. Rhyason (B.P.), 2007 ABCA 119 (CanLII), 2007 ABCA 119, 404 A.R. 191: Three years of imprisonment for impaired driving causing death. This was an increase from the 18-month sentence he had received from the trial judge. He was 21 years old at the time of the offence and was remorseful. He registered low breathalyzer readings of .120 and .100. He had one previous drinking and driving conviction.
R. v. Bear (C.C.), 2008 SKCA 172 (CanLII), 2008 SKCA 172, 320 Sask.R. 12: Six years of imprisonment and a lifetime driving prohibition for impaired driving causing death and impaired driving causing bodily harm. The accused was 31 years old and, amongst other prior offences, had three previous convictions for impaired driving. He drove through a stop sign while impaired. In his pre-sentence report he was rated as a high risk to reoffend, based primarily on his numerous failure-to-comply offences and his alcohol abuse. The trial judge noted that the accused had not accepted responsibility for the offence and, to the contrary, had attempted to shift blame to the other driver.
R. v. Richard (A.L.), 2009 MBQB 181 (CanLII), 2009 MBQB 181, 241 Man.R. (2d) 298: Six years of imprisonment and a 15-year driving prohibition. Although the 33-year-old accused had no prior drinking and driving convictions, he had a serious criminal record for violent crime and warrants were in existence at the time of the offence for his arrest for failure to appear in court and failure to report for bail supervision. His licence had been suspended and he was under recognizance to abstain from alcohol when he went to a party and drank to the point of impairment. He then got behind the wheel of a van he knew was stolen. He got into an accident resulting in the death of the victim. The Crown asked for six years; counsel for the accused submitted five years was appropriate.
R. v. Morneau, 2009 QCCA 1496 (CanLII), 2009 QCCA 1496: Six years of imprisonment and a 12-year driving prohibition for impaired driving causing death and impaired driving causing bodily harm for a 39-year-old accused who had breathalyzer readings of .247. He also had three prior drinking and driving convictions. Leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 408.
R. v. Niganobe (J.), 2010 ONCA 508 (CanLII), 2010 ONCA 508, 95 M.V.R. (5th) 175: Five years of imprisonment and a 15-year driving prohibition for impaired driving causing death and impaired driving causing bodily harm. The accused had a prior criminal record including a conviction for impaired driving in 2003. She did not have a driver’s licence and in fact had never been licensed to drive. The trial judge also found that the accused had not accepted responsibility for her conduct and therefore continued to pose a danger to the public.
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