In R. v Anderson, 2017 MBCA 31, the Manitoba Court of Appeal was faced with a Crown appeal of a lower court sentencing decision on a charge impaired driving causing bodily harm, where the jail sentence imposed fell below the range of sentences that had been set by an earlier decision of the court. In light of the court’s decision to allow the appeal and increase the jail sentence, a question that also needed to be decided was whether the accused should be reincarcerated, as the original jail sentence imposed had already been served in full.
The factual circumstances of the case were that the accused drove his vehicle on the wrong side of a highway toward oncoming traffic, colliding with another vehicle and injuring the driver and two passengers. The driver of the other vehicle attempted to avoid a collision by stopping his vehicle. The accused had been travelling at 105 km/h, but braked about a second prior to the collision, thereby slowing his vehicle to 77 km/h on impact. The accused’s blood alcohol content was more than twice the legal limit. An open can of beer was found in the accused’s vehicle, and the accused greeted the paramedics with jokes and high-fives. The accident resulted in significant injuries and mental and emotional harm to the three occupants of the other vehicle.
The accused pleaded guilty to one count of driving over .08 causing bodily harm and one count of failing to appear in court on the date of his preliminary hearing.
The accused, an indigenous male, was 26 years old and had no previous criminal record. He had a wife and three young children residing in Ebb and Flow First Nation, while he was employed and living away from them in Winnipeg. Feelings of loneliness and isolation led him to starting drinking. The positive pre-sentence report noted the accused’s acceptance of full responsibility for his actions, assessed him as a low risk to re-offend and recommended a community-based disposition.
At the sentencing hearing, Crown counsel recommended a two-year jail sentence, while defence counsel requested a 90-day intermittent jail sentence to be followed by three years of supervised probation.
On the charge of driving over .08 causing bodily harm, the sentencing judge imposed a 90-day intermittent sentence to be followed by a three-year period of supervised probation that included a condition to complete 100 hours of community service work, along with a two-year driving prohibition, a ten-year weapons prohibition and a DNA order. A fine of $500 was imposed on the charge of failing to appear. The sentencing judge’s reasons are reported at 2016 MBPC 28.
The Crown appealed the sentence in connection with the impaired driving charge. Crown counsel argued that the sentence was unfit in light of the manner of driving, the level of intoxication and the need for general deterrence, and, further, that the sentencing judge erred in her consideration and characterization of the aggravating and mitigating factors (which included Gladue factors).
The court unanimously concluded that general deterrence is a prime objective in sentencing for impaired driving offences, which cause more deaths in Canada than any other offences. The court noted that the range of sentences for impaired driving causing bodily harm was set at six to 24 months’ jail in R. v Smoke, 2014 MBCA 91. This is the case even where individual deterrence may not be necessary.
While acknowledging that sentencing ranges are guidelines only and may be departed from in appropriate cases, the court ultimately concluded that this was not such a case in light of the fact that the sentencing judge unduly minimized the aggravating factors that needed to be balanced against the mitigating factors. The court recognized that Gladue factors were present and that a sentence at the lowest end of the range was warranted. The court therefore allowed the appeal and concluded that six months’ incarceration was a fit sentence.
By the time the appeal was decided, the accused had finished serving the 90-day intermittent sentence. As a result, the court considered whether the accused should be reincarcerated or whether the sentence should be stayed to avoid the injustice that would otherwise result. In order to make this assessment, the court noted the following non-exhaustive list of factors that may be taken into consideration:
- the reasons for any delay between the date of arrest and the date the appeal sentence was imposed;
- the time that has elapsed from the imposition and completion of the sentences at trial;
- the gravity of the offence;
- 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
- the length of sentence remaining to be served (i.e., the difference between the new sentence and the original sentence).
While the court recognized that the serious nature of the offence requires an emphasis on deterrence and denunciation, it also recognized that the incident had occurred nearly four years before the appeal was decided. Reincarceration would have a significant negative financial impact on the accused and his family and would impede the accused’s ongoing rehabilitative efforts. The court found that reincarceration would serve no purpose for society and therefore stayed the remaining custodial portion of the sentence.
The court recognized in the course of its written reasons that this was a difficult appeal. Principles of rehabilitation and restorative justice needed to be delicately weighed against principles of general deterrence and denunciation. While these are factors that a sentencing judge must always consider, the challenge for this appeal was heightened by the deference that is owed to a sentencing judge’s decision and the significant rehabilitative steps taken by the accused post-sentencing. The outcome of this appeal appears to have struck the appropriate balance by increasing the sentence while not requiring the accused to serve any further jail time, thus avoiding the injustice that would otherwise have resulted.
Tony Cellitti is Defence Counsel with the law firm of Phillips Aiello in Winnipeg, Manitoba, a member of the Manitoba Bar Association (MBA) Council, Co-Chair of the MBA’s Criminal Justice Section and an Executive member of the Criminal Defence Lawyers Association of Manitoba.