Drunk Driving Causing Death In Alberta

Being charged with the offence of drunk driving that results in a death is a serious criminal charge that requires the counsel and advice of an experienced and seasoned criminal defence lawyer in Calgary. If you are facing such charges, there are heavy sentences that will be pursued by The Crown. These penalties can involve extensive prison sentences. Do not face these charges alone. In these circumstances, you should:

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Court of Queen’s Bench of Alberta
Citation: R. v. Rhyason, 2006 ABQB 86

Date: 20060131

Docket: 040886285Q1

Registry: Edmonton

Between:

Her Majesty the Queen

Crown

- and -

Bennett Parker Rhyason

Accused

_______________________________________________________

 

Reasons for Judgment

                                                                        of the

                                             Honourable Mr. Justice Donald Lee

_______________________________________________________

 

 

Introduction

 

 

[1]               The Accused has been convicted of the following:

 

(a)       Impaired driving causing death (Section 125(3) of the Criminal Code);

 

(b)       Operating a motor vehicle while having more than 80 mg of alcohol per 100 mL of blood (Section 123(b) of the Criminal Code).

 

[2]               Counsel for the Accused submits that the Section 123(b) conviction should be stayed conditionally under the Kienapple principle. Crown counsel has not taken any position with respect to this submission.

 

[3]               On the facts, the conviction for impaired driving causing death is, in part, based on evidence that the Accused operated a motor vehicle while having more than 80 mg of alcohol per 100 mL of blood. In that respect, the same act of the accused grounds each of the charges and both offenses are aimed at the same evil. Therefore, in the absence of argument to the contrary, I agree that the Section 123(b) conviction in this matter should be stayed conditionally.

 

[4]               The importance of the conditional stay as to Section 123(b) is that even if Crown counsel had given notice of greater punishment (Section 727), then the conditional stay has the effect that the mandatory term of imprisonment under Section 125(1)(a)(ii) does not apply.

 

[5]               The Accused’s criminal record shows a previous impaired driving conviction, under Section 123(a), in 2003. For the purpose of Section 125(1)(a)(ii), it would not have mattered that the Accused’s previous conviction is under Section 123(a), while the subsequent conviction in the present matter is under Section 123(b): for the purpose of Section 125(1)(a)(ii), the two are interchangeable. See, for example, R. v. Kumar, 85 C.C.C. (3d) 417 (B.C. C.A. 1993); R. v. Bordula 339 A.R. 390, 2004 ABCA 8 (CanLII), 2004 ABCA 8; Clayton C. Ruby, Sentencing, 6th ed., Butterworths: Markham, Ont., 2004, para. 8.85.

 

[6]               Given the conditional stay, the significance of Section 125(1)(a)(ii) for present purposes is merely to indicate Parliament’s overall intention to treat repeat offenders for drinking and driving severely and its overall lack of reluctance to have such offenders imprisoned.

 

[7]               Because the mandatory term of imprisonment under Section 125(1)(a)(ii) does not apply, the Accused is potentially eligible for a conditional sentence (see Section 742.1).

 

[8]               R. v. Gomes2003 ABCA 149 (CanLII), 175 C.C.C. (3d) 112, 2003 ABCA 149, establishes that the Section 125(1)(a) minimum terms of imprisonment do not apply to Section 125(2) impaired driving causing bodily harm. By analogy, the same applies to Section 125(3) impaired drivingcausing death. Therefore, there is no bar in the nature of a mandatory term of imprisonment, to having the Accused serve a conditional sentence.

 

[9]               Crown counsel argues for a term of imprisonment of 4 years because of the egregious nature of the offence coming on the heels of the prior related offence of impaired driving.

 

[10]            Counsel for the Accused argues for a conditional sentence of up to 2 years less a day submitting that the Accused is very remorseful, and should be allowed to continue as a productive member of society, albeit with severe restrictions placed on him. According to Counsel for the Accused, the actual events grounding the offence for which the Accused has been convicted are only marginally serious in nature and barely sufficient to warrant the conviction.

 

[11]            Counsel for the Accused did not see the need for any pre-sentence report.

 

 

 


Imprisonment or Conditional Sentence

 

 

[12]            Before deciding whether the Accused should serve a term of imprisonment, or else, a conditional sentence, I must point out that I am satisfied that his impaired driving causing death merits a custodial sentence, although one of less than 2 years.

 

[13]            I must therefore decide as between imprisonment or a conditional sentence. I have no jurisdiction to impose a blended sentence on a single charge. See, for example, R. v. Mo, 299 A.R. 388, 2002 ABCA 10 (CanLII), 2002 ABCA 10.

 

[14]            Section 742.1 of the Criminal Code reads as follows:

 

742.1    Imposing of conditional sentence

 

Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

 

(a)       imposes a sentence of imprisonment of less than two years, and

 

(b)       is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in Sections 718 to 718.2,

 

the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under Section 742.3.

 

[15]            According to the sentencing submissions, the Accused says through his counsel that he has practically eliminated his alcohol consumption since his arrest in this matter. Furthermore, if he is prohibited from consuming alcohol, or driving, or both, his serving of the sentence in the community would not endanger the safety of the community. The Accused has also managed to stay out of trouble since the July 31, 2004 tragic events.

 

[16]            The more difficult question is whether having the Accused serve his sentence in the community would be consistent with the purpose and relevant principles of sentencing. These are as follows:

 

718       Purpose

 

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

 

(a)       to denounce unlawful conduct;

 

(b)       to deter the offender and other persons from committing offences;

 

(c)       to separate offenders from society, where necessary;

 

(d)       to assist in rehabilitating offenders;

 

(e)       to provide reparations for harm done to victims or to the community; and

 

(f)       to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

 

718.1    Fundamental principle

 

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

 

718.2    Other sentencing principles

 

A court that imposes a sentence shall also take into consideration the following principles:

 

(a)       a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, …

 

(b)       a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

 

 

(d)       an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e)       all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

 

 

Denunciation and General Deterrence

 

 

[17]            The two sentencing objectives of denunciation and general deterrence are the two most relevant to this case.

 

[18]            Impaired driving is a criminal offense with potentially disastrous consequences, and merits strong denunciation, especially when those consequences materialize. In this society, drivers, passengers, and pedestrians are entitled to expect that drivers will not drive while impaired by alcohol, just like more generally, members of this society are entitled to expect that other persons will not assault or rob them.

 

[19]            The Accused’s conduct was directly contrary to the entitlement of drivers, passengers, and pedestrians. Given his very recent previous criminal conviction for impaired driving, this is not the first time that the Accused has conducted himself in this way.

 

 

Separation, Specific Deterrence and Rehabilitation

 

 

[20]            The Accused is not an offender who must or should be separated from society. At most, he should be separated from alcohol or operation of a motor vehicle, or both, so as to prevent a recurrence of his impaired driving. That objective is attainable through a driving prohibition. Based on all the submissions, the Accused is otherwise a healthy, functioning, productive member of society. Separation from society is therefore not a relevant sentencing objective in this case.

 

[21]            For similar reasons, rehabilitation is not especially relevant to this case. There is no suggestion that the Accused is socially dysfunctional, apart from his recurrent impaired driving.

 

[22]            Specific deterrence is highly relevant here, but again, a driving prohibition and a strongly denunciatory sentence is likely to accomplish that objective.

 

[23]            The evidence at trial and the sentencing submissions together indicate that the Accused is a person who cares about his own well-being and that of others, although this happened only after the fact rather than when he should have decided not to engage in conduct that puts others at risk of great harm. In that respect, a strongly denunciatory sentence is likely to convey to him clearly the message that impaired driving is not acceptable in this society and that he must never do it again.

 

 

Offender’s Sense of Responsibility, Acknowledgment of Harm, and Reparation

 

 

[24]            The evidence at trial and sentencing submissions together indicate that the Accused has a sense of responsibility. He appears to understand and acknowledge that his conduct has caused great harm to others. There does not appear to be any further contribution to the requisite sense of responsibility or acknowledgment of harm that formal sentencing can make.

 

[12]            The Accused’s offense is one for which it is difficult to assess adequate reparation. Nothing he does will ever bring back to life the deceased victim. The victim’s family and community have been deprived forever of one of its valued members. The most that one can hope for is that the victim’s family and community will accept, first, that the Accused’s formal sentencing has been just and appropriate, and second, that the Accused will be able to participate productively in the community as a valued and respected member once he has served his sentence.

 

 

Gravity of the Offense, Offender’s Degree of Responsibility

 

 

[26]            The gravity of the offense here is very high. Even after previously being convicted for impaired driving, the Accused consumed a significant amount of alcohol and then drove for many kilometers through an urban area at night. On the facts, there is no question that he had ready access to alternative means of transportation or accommodation for the night. He was within walking distance of a place where he could spend the night. He was in an urban area which he knew well, and in which he had friends and relatives. He could have taken a taxi or arranged for a ride from a friend or relative. As a result of his decision to drive after several hours of bar-hopping that night, the Accused caused the death of a pedestrian.

 

[27]            At the same time, neither the Accused’s blood alcohol level nor the “marked departure” in driving conduct, which evidenced the Accused’simpairment and caused the accident, was blatantly egregious. Furthermore, it may be that the pedestrian was himself impaired and may have contributed causally to the accident. Therefore, the Accused’s degree of responsibility for the accident is high, but not as high as that of many of the offenders in otherwise similar cases.

 

 

Relevant Aggravating and Mitigating Circumstances

 

 

[28]            There is no suggestion that the Accused’s family or employment situation is such that imprisonment, as opposed to a conditional sentence, would cause him undue hardship. There is nothing to indicate that he has any dependants.

 

[29]            He is apparently employed full-time in Edmonton as a skilled tradesperson. There is no indication that imprisonment, as opposed to a conditional sentence, would destroy his livelihood, or prevent him from finding employment comparable to that which he now has. The sentencing submissions suggest that the Accused has been able to find different jobs in different parts of the province within a short period of time. This suggests that he would not have trouble finding suitable employment even after an interruption of several months or years.

 

[30]            There is no suggestion that the Accused suffered from a medical, social, or economic dysfunction or deprivation which in some way caused him todrive impaired. There is no suggestion that he was an alcoholic, or otherwise addicted, helpless or distressed at the time of the offense. Unlike some cases of impaired driving, this is not a case where society has failed to provide the offender with adequate medical, social, or economic resources to prevent or treat a potentially disastrous addiction or condition.  See for example R. v. Auger, 2000 ABQB 450 (CanLII), 2000 ABQB 450.

 

[31]            On the contrary, this is a case of an otherwise healthy, functioning, and productive adult young man who indulged in a night of alcohol consumption in multiple bars, and then drove without any objectively compelling need to do so.

 

 

Similarity to Other Cases

 

 

[32]            In the present case, neither the Accused’s blood alcohol level nor the “marked departure” in driving conduct, which evidenced the Accused’simpairment and caused the accident, was blatantly egregious. On the facts, there may also have been multiple causation, due to the pedestrian’s possibleimpairment. These mitigating factors distinguish the present case from many of the reported cases on sentencing for dangerous or impaired drivingcausing bodily harm or death.

 

[33]            In that respect, R. v. Cunningham, 43 M.V.R. (3d) 39 (Ont. C.A. 1999), is instructive. The appeal court confirmed that although the offender’s blood alcohol was below the legal limit, he could nonetheless be correctly found to have been driving impaired. The appeal court also confirmed that the offender’s initial inattention, and subsequent failure to take effective evasive action, in the context of turning his face to a passenger while approaching an oncoming vehicle, was a proper basis for the trier of fact to find that his impairment caused the accident.

 

[34]            At the same time, the appeal court reduced the sentence from 18 months of imprisonment to 9 months. The alcohol-related nature of the death inCunningham led the appeal court to find that a “custodial term is called for”. To that extent, the appeal court implicitly affirmed the lower court’s rejection of a conditional sentence: a rejection carefully reasoned on the basis that only imprisonment would adequately address the sentencing objectives of denunciation and general deterrence.

 

[35]            However, the appeal court noted that the offender’s impairment was “at the lower level”, that the causal connection between the impairment and the death was “not greatly over the de minimis requirement”, and that the offender “had no driving record”. Therefore, the appeal court reduced the term of imprisonment to 9 months.

 

[36]            Cunningham is comparable to the present case in its absence of blatant egregiousness as to blood alcohol level and driving conduct. It is instructive to note that the appeal court nonetheless agreed with the lower court’s rejection of a conditional sentence, and imposed a term of imprisonment of 9 months on a person whom the lower court found to be a “responsible and respected member of the community”. On that basis, the Accused can expect a term of imprisonment of at least 9 months, rather than a conditional sentence.

 

[37]            Yet, Cunningham is distinguishable from the present matter in several ways, which together call for a longer term of imprisonment here than the appeal court imposed there. The offender there had no previous criminal record. The Accused does have a criminal record, including a very recent conviction for impaired driving. The offender there had a pre-sentence report indicating “little risk” of re-offending: a finding which the sentencing judge endorsed. In light of the Accused’s related criminal record, there appears to be a greater risk here. The offender there “consumed alcohol knowing he was going to have to drive”. On the evidence here, the Accused consumed alcohol apparently without anticipating that he would be driving, and then nonetheless decided to drive without any objectively compelling need to do so. Finally, the Accused’s blood alcohol level was above the legal limit.

 

[38]            In light of Cunningham, I am inclined to sentence the Accused to a term of imprisonment of more than 12 months.

 

[39]            I recognize that there are broadly similar cases where the appeal courts have affirmed a conditional sentence. See, for example, R. v. Reed, 34 M.V.R. (3d) 20 (B.C. C.A. 1998), where the appeal court affirmed an 18-month conditional sentence for a young adult man with a previous record for speeding, whose dangerous driving caused the death of three people. The offender there had been driving in the lane for oncoming traffic and was sleep-deprived. Although he had consumed alcohol, there was insufficient evidence to find that he was either impaired or that his blood alcohol level was above the legal limit.

 

[40]            A case with an outcome similar to Reed is R. v. Elliott, 203 Sask. R. 217, 2001 SKCA 19 (CanLII), 2001 SKCA 19, where the appeal court affirmed an 18-month conditional sentence. There, the offender had pled guilty to impaired driving causing death. His blood alcohol was somewhat above the legal limit and he was speeding over 40 km/h above the speed limit. He had no criminal record, had stopped consuming alcohol, and was employed.

 

[41]            The primary and significant factor in the present case which leads me to distinguish it from Reed and Elliott is that the Accused does have a related and very recent criminal record, specifically for impaired driving.

 

[42]            In my opinion, it would be unseemly, and contrary to the sentencing objectives of denunciation and general deterrence, not to impose imprisonment on an offender such as the Accused, who had already been convicted and sentenced for impaired driving, and drove impaired again, with deadly consequences, within a few months after coming off the resulting driving prohibition.

 

[43]            The recency of the closely related criminal record distinguishes this case from practically all the cases which counsel for the Accused submitted in favor of a conditional sentence, including R. v. Parker, 116 C.C.C. (3d) 236 (N.S. C.A. 1997) with its extensive discussion of the “negative collateral effects” of imprisonment.

 

[44]            At the same time, it would not be consistent with similar cases to sentence the Accused to more than 18 months of imprisonment. Most reported cases where appeal courts have affirmed sentences of 2 years or more involved either a significantly higher blood alcohol level than here, or else, erratic or dangerous driving before the accident.

 

[45]            Contrast, for example, R. v. Blackwell, 180 Sask. R. 102 (Sask. C.A. 1999), where the appeal court imposed a sentence of 19 months for dangerousdriving causing death and dangerous driving causing bodily harm. There, the offender operated a motor vehicle in a residential area at 100 km/h, or twice the speed limit. He had several previous speeding convictions, and while awaiting trial, he was convicted of speeding, running a stop sign, and driving an unregistered vehicle.

 

[46]            Contrast also R. v. Galloway2004 SKCA 106 (CanLII), 187 C.C.C. (3d) 305, 2004 SKCA 106, where the appeal court affirmed a 2-year concurrent sentence of imprisonment for impaired driving causing death, dangerous driving causing death, impaired driving causing bodily harm, and dangerous driving causing bodily harm. There, the offender’s driving had been “grossly erratic” before the accident, which caused death to one person and bodily harm to another person. She had consumed alcohol to the point of being asked to leave a bar several hours before the accident. She was not remorseful and had fled the accident scene. She had a previous conviction for driving over .08 five years earlier, as well as several recorded incidents of speeding. The lower court accepted that she had attained a “level of high education and community participation and leadership” and was a “low risk” to re-offend, but concluded that denunciation and general deterrence required 2 years of imprisonment concurrently for the driving offenses. The appeal court affirmed this sentence.

 

[47]            The present case differs from Galloway in that there is no evidence of erratic or dangerous driving before the accident. The Accused’s blood alcohol level was above the legal limit, but there is no clear evidence that he appeared intoxicated to anyone in his company. His degree of impairment was probably lower than in Galloway and certainly lower than in the cases which Crown counsel submitted in favor of a longer term of imprisonment. The Accused is apparently quite remorseful. He did not flee the accident scene and admitted almost immediately to being the driver.

 

 

Preferability of Imprisonment

 

 

[48]            In deciding on the sentence here, I have considered options such as an intermittent sentence, or an extended period of probation with a conditional or intermittent sentence. There are reported cases somewhat similar to this one, where the courts have imposed such sentences.

 

[49]            However, an intermittent sentence is only available for imprisonment for less than 90 days, which is not a sufficient number of days of imprisonment for this case.

 

[50]            At the same time, an extended period of probation, instead of imprisonment, would not meet the sentencing objectives of denunciation and general deterrence to the degree which I wish to emphasize in this case.

 

[51]            Furthermore, an extended period of probation may be counterproductive for the Accused, a mobile young man with no dependants. The sentencing submissions indicate that even between the accident and the trial, the Accused has held different jobs in different parts of the province. He apparently changes addresses frequently.

 

[52]            There is nothing inherently wrong with that, but it does create reporting and enforcement difficulties, and threatens to undermine the sentencing objectives of denunciation and general deterrence which together call for a publicly aversive sentence. It also puts the Accused at greater risk of breaching the probation order, which may lead to further, derivative difficulties with the law for him as evidenced by his three May 16, 2005 Failures to Comply with his Recognizance convictions under Section 145(3). Such derivative difficulties are contrary to the objectives of sentencing.

 

 

Term of Imprisonment

 

 

[53]            In light of the above factors, I sentence the Accused to a term of 18 months of imprisonment for impaired driving causing death.

 

 

Driving Prohibition

 

[54]           Section 129(2)(a) of the Criminal Code entitles me to prohibit the Accused from operating a motor vehicle. I do so for a period of 4 years. Section 129(1.1) and (1.2) of the Criminal Code allow me to authorize the offender to operate a motor vehicle equipped with an alcohol interlock device during the prohibition period. I authorize the Accused to apply for an alcohol ignition interlock device after two years.

 

 

 

Victim Fine Surcharge

 

 

[55]            There will be a victim fine surcharge of $150.00 imposed herein.

 

Heard on the 20th day of January, 2006.

Dated at the City of Edmonton, Alberta this 31st day of January, 2006.

 

 

Donald Lee

J.C.Q.B.A.

Appearances:

 

Shannon Prithipaul

Gunn & Prithipaul

for the Accused

 

William Gatward

Alberta Justice, Crown Prosecutor

for the Crown

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Posted on February 15th, 2013