" .1

ISSUES AND TRENDS IN SENTENCING DRINKING AND DRIVING OFFENDERS

I GENERAL BACKGROUND

A. 1985 C.C.C. Amendments

Mr. Justice Sherstobitoffin R v. Schneider (1994), 123 Sask. R. 162 (C.A.) refers to these

amendments at 163 - 164 as follows:

[3] It has only been in recent years that the public has become fully aware of the damage interms ofhuman injury and death caused by drinking drivers. That increasing awarenessled to public demand for greater sanctions which has resulted in the enactment byParliament of the legislation which governs this case. Until 1985, the only offences in theCriminal Code relating to drinking and driving were those created by the sectionsprohibiting driving while impaired and driving with a blood alcohol level exceeding .08with a maximum penalty for a first offence ofa fine of $2,000.00 or six months'imprisonment, and for third and subsequent offences, a maximum penalty of2 years'imprisonment (then s.s. 234 and 236). The present s. 255 came into force onDecember 3, 1985. Under it, the maximum penalties for impaired driving or exceeding .08were increased to 5 years' imprisonment for the ordinary offence, and new maximumpenalties were added in certain circumstances: 10 years' imprisonment where the offenderthereby caused bodily harm and 14 years' imprisonment where the offender thereby causeda death. These amendments and new provisions were made to meet the public demand forlaws directing Courts to treat impaired driving cases with greater severity then in the pastin order to deter repetition of and to denounce as unacceptable an all too commonoffence.

B. -1997 C.C.c. Amendments

The next major revisions to the Criminal Code respecting impaired driving charges occurred with

the 1997 sentencing amendments. Theses amendments codified sentencing principles and

provided for further sentencing alternatives for Criminal Code offences where

no minimum penalty is prescribed by statute. Since these amendments are relatively new there is

continuing debate at the Appellate and Superior Court level as to the impact of these provisions

and those issues will be discussed in an accompanying paper.

2

C. Charter

The minimum sentences set out in s. 255 have sUlvived Charter scrutiny. See:

R v. Tardif(1983), 9 C.C.c. (3d) 223 (Sask. c.A.)R v. Aucoin (1987),48 M.VR. 154 (N.S.S.C. App. Div.)R. v. Parsons (1988), 40 c.c.c. (3d) 128 (Nfld. S. C. T. D.)R v. Kumar (1993), 85 C.C.c. (3d) 417 (B.C.C.A.)

II RANGE OF SENTENCE

The paper on Relevant Statutory Provisions sets out the statutory range of a sentence on impaired

and .08 simpliciter and the maximum sentencing statutory provisions for impaired causing bodily

harm and causing death. This portion of the paper will provide a review of the case law regarding

sentencing in five specific areas and will deal primarily with Saskatchewan case law although there

will be occasional references to other jurisdictions.

A. Impaired causing bodily harmB. Impaired causing deathC. Repeat OffendersD. Driving Prohibitions.E. Further Issues

A SENTENCING ON IMPAIRED CAUSING BODILY HARM

The range of sentencing for charges of impaired driving causing bodily harm varies from

substantial fines at the low end to penitentiary terms.

In R v. Ulrich [1989] S.l No.268, (May 10, 1989), on a sentencing appeal the Court of Appeal

reduced a sentence to 90 days with 1 year probation which included 150 community service

hours. In that decision Mr. Justice Vancise for the majority wrote that;

..."a Court of Appeal should, in reviewing sentence, ensure that the sentence is neitherexcessive nor inadequate ... should not lose sight that each case must be decided on itsown merits have regard to the unique characteristics ofthe offender".

11

...

\) 3

Then citing the Nova Scotia Court of Appeal in R. y. Grady (1973),5 N.S.R. (2d) 264 at 266, he

further states that the Court must consider not only the offence committed but the method and

manner of committing; the presence or absence of remorse, the age and circumstances of the

offender, and other related factors. In Ulrich the Court of Appeal determined that the 10 month

sentence given at trial was excessive because, in its view, specific deterrence was not required, the

appellant was remorseful, had accepted responsibility, had no previous criminal record and there

was little likelihood that he would re-offend. The majority further states,

" ... general deterrence is an overused principle that is relied on all too frequently to justifycustodial sentence. What is more important, in my opinion, is that the seriousness of theoffence, including the impact and consequences of the accident to the victim, dictate aterm of imprisonment. The personal circumstances of the appellant must also beconsidered in arriving at a fit sentence".

The Court concluded that the trial judge failed in this case to place sufficient emphasis on the

principle of rehabilitation. Mr. Justice Wakeling, in dissent, however took the position that the

Court was bound by its previous decisions, specifically R. y. Melnyk (1985), 45 Sask R. 258,

where the Court on a charge of impaired driving causing death upheld a sentence of 15 months.

He further states,

"I agree that where injury rather than death is a result of the prohibited conduct, a lessersentence has been seen as appropriate, but not markedly so, as the extent of the injury isnot really indicative ofa lesser degree of culpability. The bulk of the offence in theoperation of the vehicle while impaired and the threat which that imposes upon society.The degree of injury is more related to chance than the seriousness of the offence, but,none the less, it is a factor to be considered".

He concluded that the sentence imposed by the lower Court did attempt to tailor justice to the

individual taking into account positive factors as well as the serious injury and the severe level of

impairment in the case.

The Court of Appeal in R. v. Powell (1989), 81 Sask. R. 301, allowed a Crown appeal on

sentence of six months' incarceration but approved a 2 year prohibition. Two people were

injured, degree of impairment was high, erratic driving, but good work record and character. The

Court concluded deterrence and public protection must be adequate consideration.

4

In R. v. Assiniboine [1992], SJ. No. 190 April 3, 1992 (Q.B.), the Court imposed a sentence of9

months on a charge ofimpaired causing bodily harm. The accused had spent 60 days on remand

and had also been charged with an obstruction ofjustice and received a concurrent sentence on

that matter. There is limited information as to the facts of the case.

In R. v. Feucht (1992), 100 Sask R. 96 (C.A.), the accused at trial was given 6 months on an

impaired causing bodily harm charge and 3 months for failing to remain at the scene ofaccident

for a total sentence of 9 months. In that case the Court of Appeal upheld the sentence but

reduced the period of prohibition. Two individuals sustained serious and severe injuries. The

accused was 25, had no previous criminal record and appeared genuinely remorseful. The Court

concluded that the total sentence of 9 months was well within the range for such offences and

found no ground to interfere.

In R. v. Eashappie (1994),3 M.Y.R. (3d) 187 (Sask.C.A.), at trial the accused, after pleading

guilty to a charge of impaired driving causing bodily harm in which there were serious injuries

(unlikely to ever recover), and charges of failing to comply with a demand and driving while

disqualified, was given sentence of2 years less one day and 1 year prohibition. On appeal the

sentence was increased to 6 years incarceration and a 10 year prohibition. In this case, the Court

relied on its previous decisions in R. v. Duckworth (1993), 113 Sask. R. 178 (C.A.), (failing to

provide a sample) and R. v. Bird (1990), 87 Sask. R. 19, (impaired and driving while disqualified)

and concluded that a substantial period of incarceration (five to eight years) was required

considering the extent of injuries, his extremely high blood alcohol readings and his extensive

record for drinking and driving and related offences ( 18 previous convictions). The Court

concluded that the sentence of2 years less a day even coupled with a 2 year driving prohibition

was not proportionate to the gravity of the offence and level of responsibility ofthe accused; nor

was it consistent with other sentences imposed on other offenders for similar offences committed

in similar circumstances. The Court took into account the nature of the offence, the manner in

which it was committed, the extent of the injuries, and the fact that any previous rehabilitative

measures had not been successful. It concluded that the only option was to disable the accused

1 ,

5

from driving for a substantial period to protect society, and although it was not the worst case

scenario so as to require a maximum period of imprisonment, it was near to being so.

Shortly after the Eashappie decision the Court of Appeal in R. v. Strongquill (1994),3 M.V.R.

(3d) 190, dealt again with charges of impaired causing bodily harm and driving while disqualified

where a victim received serious injuries and the accused had 25 prior motor vehicle related

convictions. At trial he was sentenced to 2 years less one day. The Court of Appeal concluded

that the sentence was wholly inadequate and increased the sentence to 4 years' imprisonment and

a 6 year driving prohibition. In that case the Court relied on its previous decisions in Eashappie

and R. v. Bear (1994), 3 M.V.R. (3d) 173, (refusal and driving while disqualified). It stated that

applying the principles set out in those two judgments, the appropriate sentence for the impaired

causing bodily harm charge would be 4 years incarcerations and a six year driving prohibition.

In R. v. Gorski (unreported) (Sask. c.A., Feb. 13, 1996) the Court dismissed the accused's

appeal against an 18 month sentence and 3 year driving prohibition stating that the sentence was

fit given the circumstances, the fact that a person was injured, and the accused's five previous

convictions for driving offences.

In R. v. Ceulemans [1998], Sask. D. Crim. 270.34.40.20 - 01 (Q.B.), the accused was convicted

of one count of impaired causing bodily and one count ofmanslaughter arising out of the same

episode. The Court concluded that the offences were very serious and noted a number of

aggravating factors surrounding the offence, and that the accused's conduct was not such that it

was at the lower end of the scale of culpability for manslaughter. One person was killed and a

second person was injured. It sentenced him to 4 and Y:z years on the manslaughter charge and 6

months concurrent on the impaired causing bodily harm charge.

In R. v. Beeds (unreported) (Sask. C.A., July 9, 1998), the accused had high breathalyzer

readings and was involved in a single vehicle rollover in which 2 passengers were seriously injured

but had made good recoveries. He was also charged with obstruction and possession of stolen

6

property charges that arose subsequent to the driving charges and was given a total sentence of

21 months. On appeal the 3 month consecutive sentence for possession of stolen property was

made concurrent to the total sentence of 18 months and the Court concluded that the 1 year

sentence for impaired driving causing bodily harm was a fit sentence.

It is of interest to compare these sentences to sentences imposed in cases where the charge is

dangerous driving causing bodily harm. The case citations and sentence we note here are for your

reference and review

R. v. Lowes (1994), 120 Sask. R. 315 (c.A.) - 6 months imprisonment

R. v. Labar (1996), 144 Sask. R. 220 (C.A.) - suspended sentence with intensive probation for 6months.

R. v. Rowse [1996] Sask. D. Crim. S. 7165-01 (Sask c.A.) - 90 days to be served intermittently.

R. v Scully [1996] Sask. D. Crim. S. 7165-02 - 6 months

R. v. Hogan (1997), 156 Sask. R. 203 (Q.B.) - 90 days intermittent

R. v. Meeley (1997), 156 Sask. R. 192 (in this case there was no alcohol involved) - 6 monthconditional sentence and 18 months probation

B. SENTENCING ON IMPAIRED CAUSING DEATH

In general, a period of incarceration ranging at the lower end from 15 months up to penitentiary is

the usual sentence however here is a notable exception.

In R. y. Paul (1991) 89 Sask. R. 199, the Court ofAppeal reduced a sentence to 4 years on facts

which included extreme intoxication in a series of accidents with the final one culminating in death

of a victim. The Court speaks ofdealing with one of"...the profound social problems of our time

- the culpability of the impaired or drunk driver". In this case there was a history of alcohol

abuse, some limited attempts to deal with the problem, but an accused who was remorseful and

since the episode was making a genuine effort to address his problem. The Court concluded that

the offence required a lengthy term of imprisonment to answer society's concerns and that the

7

sentence must emphasize the protection of the public as well as deterrence in its widest sense. It

further sought to rationalize the sentence for this offence with sentences imposed in this

jurisdiction for other offences, and concluded that the sentence should be 4 years.

In R v. Kahpeepatow [1991], SJ. No. 444 (September 1991), the Court of Appeal, relying on its

reasons in the case of Paul concluded that a sentence of nothing short of3 and Ih years would

constitute a properly balanced and fit sentence in this case but on consideration of the totality of

sentence, imposed a sentence of 3 years for the charge of impaired causing death and consecutive

sentences for leaving the scene of an accident and theft. The accused pled guilty at trial, had

previous convictions for both impaired and driving while disqualified charges and expressed deep

remorse.

In R v. Schneider (1994), 123 Sask. R162, the Saskatchewan Court of Appeal upheld a

sentence of 15 months imprisonment. The accused argued on Appeal that all or part of the

sentence should have been served under the electronic monitoring program. On the facts of this

case the level of impairment was very low, there was no prior criminal record, no alcohol abuse

problem and little likelihood of re-offending. The Court concluded that the circumstances of the

offence put it at the lowest level of gravity for an offence of this nature but stated that the most

important consideration on the facts of the case was that a life had been lost as a result of an act

which defined as a crime. On review of its decisions with respect to the issue of electronic

monitoring it concluded that it would not be appropriate in the circumstances of this case and that

the 15 month sentence imposed at trial was within the appropriate range for the offence and found

no basis to interfere.

In R. v. Rope [1995], S.1. No.494 (C.A. September 5, 1995), the Saskatchewan Court of Appeal

dealt with a Crown appeal of sentence imposed after a sentencing circle. The Trial judge imposed

a 2 year suspended sentence with 6 months electronic monitoring along with 120 community

service hours. The Court of Appeal dismissed the appeal by holding that the exemplary conduct

of the accused since the commission of the offence allowed them to sustain the sentence.

8

In R. v. Thomas, (unreported) (Sask. C.A. January 11, 1996), the accused appealed her sentence

of 15 months on charges of impaired driving causing death and impaired driving causing bodily

harm. A sentencing circle had been held however while the accused was awaiting that circle she

was charged with a further .08 and was sentenced to 30 days. The Court sentenced her to 15

months on each charge, concurrent, in spite of other recommendations from the sentencing circle,

stating that emphasis had to be on general and specific deterrence and maintaining public

confidence in the administration ofjustice. The Court upheld that sentence and found that her

subsequent conviction for impaired driving was a serious aggravating factor.

In R. v. Keller (1997),158 Sask R. 181 (C.A.), the accused pled guilty to impaired driving causing

death and impaired driving causing bodily harm charges arising out of the same episode. At trial a

sentence of2 years less 1 day was imposed and the accused appealed arguing that the trial judge

erred in declining to make a conditional sentence order. In that case there was excessive speed,

one person was killed, one was severely injured, the blood alcohol level was high, no criminal

record, expressions of remorse. The Court of Appeal relied on its decisions in a number of

previous cases including R. y. MacDonald (1997), 152 Sask. R. 81, R. v. Schneider (1994) 123

Sask. R. 162 (C.A.) and R. v. Powell (1989),81 Sask. R. 301 (C.A.) and concluded that the

sentence given at trial was a fit sentence having regard for the objectives; of denunciation,

deterrence and the promotion of responsible attitudes in this field ofactivity, as well as the gravity

of the offence, the accused's degree of responsibility, the issue of parity in sentencing and the

inappropriateness of less restrictive sanctions than imprisonment in such circumstances. The

Court states at 187

"Indeed given the gravity of the offence and a call for a just sanction, to have allowed theaccused's request to serve the sentence in the community would have been to invite ameasure of mischief, including the erosion of public respect for the law and publicconfidence in its administration".

For purposes ofcomparison and review the following are citations and sentences on convictions

for dangerous driving causing death and criminal negligence causing death.

\ 9

Dangerous Driving Causing Death:

R. v. Carlson [1987] S.l. No. 803 (C.A) - two deaths,alcohol involved but no evidence of

impairment. The Court of Appeal referred to the case ofR. v. Melnyk (1985),45 Sask. R. 258

and concluded that a sentence of 1 year as imposed by the trial judge was appropriate.

R. v. Arcand (unreported) (Sask. C.A, September 14, 1995) - charges of dangerous driving

causing death and causing bodily harm, had spent 2 months in remand. The Court upheld

sentences of2 years less 1 day plus 1 year concurrent as within range although at lower end.

R. v. Melnyk (1997), Sask R. 179 (Q.B.) - a sentence of 15 months imprisonment to be served in

the community and 18 months probation. Some alcohol impairment involved though likely not

over the legal limit and a mistake in judgment as opposed to willfully and deliberately engaging in

dangerous driving practices, no criminal record, remorseful.

R. v. Delaittre (unreported) (Sask. C.A, June 11, 1998) At trial, given a sentence of90 days'

intermittent and 18 months' probation including 200 community service hours, on appeal the

sentence was increased to 15 months as sentence was demonstratively unfit having regard for the

previous decisions of the Court, the conduct of the accused, and the need for general and specific

deterrence. The Court also noted that the particularly aggravating features of this case were the

accused's two convictions for speeding violations since the accident.

R. v McKay (unreported) (Sask. C. A, June 12,1998) - an 18 month conditional sentence

including 240 hours of community service and 3 year driving prohibition was imposed at trial.

The accused appealed the length of the prohibition however the Court upheld the sentence.

Criminal negligence in operation of a motor vehicle causing death:

R. v Melnyk (1985), Sask. R. 250 (C.A) - 15 month imprisonment upheld although it indicated

that it was lenient - refers to R. v. McVeigh (1985) 11 G.AC. 348 (C.A)

10

R. v. Klaus [1987], SJ. No. 242 - The Court concluded that a sentence in the range of3 to 4

years would be fit and sentenced the accused to 3 years.

R. v. MacDonald (1997), 152 Sask R. 81 (C.A.) - The Court imposed a sentence of 18 months

and concluded that a conditional sentence was not fit given the serious nature and circumstances

however concluded that since she had already spent 8 months on electronic monitoring the actual

sentence to be imposed would be 6 months in addition to time served. Mr. Justice Vancise, in

dissent, would have imposed a conditional sentence of 2 years less 1 day.

R. v. Weeseekase (1997), 158 Sask R. 245 - The accused was convicted ofboth criminal

negligence causing death and criminal negligence causing bodily harm as well as driving while

disqualified, all arising out of the same episode. He was given a total sentence of 10 years. The

Court concluded that this total sentence was at the high end of the range and although the actions

of the accused and his lengthy record justified a significant sentence, there were mitigating factors

and in result the Court of Appeal confirmed the 7 year sentence for criminal negligence causing

death but changed the 3 year sentence for conviction on a charge of criminal negligence causing

bodily harm to a concurrent sentence.

c. REPEAT OFFENDERS

The Saskatchewan Court of Appeal has on a number of occasions dealt with the matter of repeat

offenders and drinking and driving charges and the following cases are cited in that regard:

R. v. Bird (1990), 87 Sask. R. 19 (C.A.) - 17 previous convictions for either impaired or driving

while disqualified, sentence increased to 2 years less 1 day.

R. v. Duckworth (1993), 113 Sask. R. 178 (C.A.) - 20 drinking and driving offences including

many driving while disqualified, sentence of 3 years imprisonment.

)

) 11

R. v. Bear (1994),3 M.VR. (3d) 173 - 27 previous driving offence convictions including

convictions for driving while disqualified, 3 1;2 years on refusing to providing a breath sample and

2 years concurrent for driving while disqualified. In that case the Court says at 179 to 180;

"... when dealing with an offender who is not only a repeat offender, but a multiple re­offender ofdriving offences, specific deterrence is not an important principle to consider.The offender has not been specifically deterred, previous penalties have had little or noimpact on his criminal activity and he has continued to offend.

The length of sentences for driving offences has been steadily increasing for the so calledlesser offence of impaired driving as well as for driving offences involving bodily harm ordeath. This Court, and other Appellate Courts, seek by imposing longer sentences, toprohibit others from committing this criminal activity. It is generally conceded that legalsanctions have an overall deterrent effect, above all when it is generally known by thepublic that certain criminal activity, such as impaired driving or driving while disqualified,will be fairly certain to produce a known result, that is, a long period ofincarceration.What is not known is whether longer sentences for a particular offence, taken bythemselves, have the effect of reducing the crime rate, or deterring a particular class ofoffender.

Protection of the public is the paramount and overriding consideration of sentencing.One must ask how that goal becomes is best achieved.

...where it is clear rehabilitation is a faint possibility... Ifone accepts the fundamental goalof sentencing is the protection of society, the most direct method of achieving that goal,assuming protection of society cannot be achieved by rehabilitation or reformation, isincarceration" .

The Court, at page 181, in determining the length of penalty recognized that although where there

is death or injury the Parliament has imposed longer sentences, there are increasingly longer

sentences for other driving offences as well. The Court concludes at 184 that the sentence

imposed on repeat offenders charged with impaired driving or impaired driving causing bodily

harm or death must bear some relationship to and ought to be in the same range as sentences

imposed for the more serious offences committed in similar circumstances because of the

accused's repeated recidivism.

Also see R. v. Eashappie and R V Strom~Quill referred to earlier in this paper.

12

D. DRIVING PROHIBITIONS

The issue of the length ofa prohibition order has been addressed in a number of cases as follows:

R v, Rayner (1986), 53 Sask R 13 (Q.B.) - At trial on a first driving conviction charge a

prohibition of 6 months was imposed. The Court of Queen's Bench allowed the appeal reducing

the prohibition to 3 months stating that there must not be an unjustifiable disparity between similar

offences and offenders.

R v Bohachik (1998),68 Sask. R 300 (C.A.). At trial a prohibition of3 years was imposed on a

conviction of a charge of impaired driving causing bodily harm. The Court ofAppeal concluded

that the period ofprohibition for the charge of impaired causing bodily harm must be greater than

the usual 3 to 6 months imposed for a first offence for an impaired, simpliciter, and that the length

of the prohibition must depend on the facts of each case. In this case the Court considered the

good character of the appellant, his lack of any record, that he was not likely to re-offend, none of

the injuries were permanent and concluded that the prohibition imposed at the lower Court was

too high and that the appropriate period of prohibition would be nearer the minimum. It noted

that the only aggravating factors were the degree of intoxication and the number of persons

injured, however these were balanced by the substantial mitigating factors including the hardship

to the appellant in respect to his work and reduced the period of prohibition to 1 year.

The reasoning in these cases have been relied on in a number of subsequent cases.

E. FURTHER ISSUES

This paper will not pursue the matter of conditional sentences as that topic is dealt with

extensively in an accompanying paper but will also refer readers to the following papers:

Barrett, Rv. Biancofiore: "Defining the Role ofGeneral Deterrence in the Conditional Sentence"Regime, (1998) 10 C.R (5th) 214. (note: R v. Biancofiore (1998)10 c.R. (5th) 200 (Ont. c.A.) deals with conditional sentence in contextof a charge of dangerous driving causing bodily harm)

, I

\ '

\

i13

Bayda, The Honourable E.D., "The Theory and Practise of Sentencing: Are They on the SameWave Length?", (1996) 60(2) Sask. Law Rev. 317

Gemmell,: "The New Conditional Sentencing Regime", (1997),39 Crim. L.Q. 334

Manson,: "The Appeal of Conditional Sentences ofImprisonment", (1997) 5 C.R (5th) 279"Finding a Place for Conditional Sentences", (1997) 3 C.R (5th) 283"A BriefReply to Professor Roberts and Von Hirsch", (1998) 10 C.R (5th) 232

Roberts and Hirsch, " Conditional Sentences of Imprisonment and The Fundamental Principle ofProportionality in Sentencing", (1998) 10 C.R (5th) 222

Roberts, "Conditional Sentencing: Sword ofDamocles or Pandora's Box?" (1997)2 Crim. L.R 183

The role of the principles of protection of the public and denunciation ofdeterrence in sentencing

in impaired driving charges is often discussed in the case law. Recently Cory J. In Rv.Bemshaw

(1995) 95 C.C.c. (3d) 193 at 204 (S.C.C.), spoke of the extent of the problem as follows:

"...in terms of the deaths and serious injuries resulting in hospitalization, drunk driving isclearly the crime which causes the most significant social loss to the country...

Preview of cases from the Saskatchewan Court ofAppeal already cited in this paper will show

frequent reference to these principles and the role they ought to play in sentencing impaired

driving charges. Also, see Rv.Biancofiore (1998), 10 C.R (3d) 200 (Ont.C.A.)

Sentences must also reflect the gravity of the offense and the degree of responsibility of the

offender.

Addressing the degree of the moral culpability of the offender in sentencing in these matters is

often a difficult task. Some have questioned whether the moral culpability of one convicted of

impaired driving causing death or bodily harm is any different than one convicted of impaired

driving simpliciter. The argument being that moral culpability is determined by the state ofmind

accompanying the unlawful act and in impaired driving, the mental element is to drive while

14

impaired, there being a reckless disregard for foreseeable consequences. The fact that death or

injury has occurred is more likely due to chance than foreseeability. In the Sweeney cases

indexed as R.v. Sweeney (1992), 11 C.R. (4th) 1, the B.C. Court of Appeal addressed the issue

and in effect made the sentence directly proportional to the moral blame-worthiness of the

offender. Wood, J. (although concurring in result) wrote a separate decision addressing this issue

in greater detail. A commentary and discussions of the issues can be found in Code,

Proportionate Blameworthiness - The Rule Against Constructive Sentencing (1992), 11 c.R.

(4th) 40. This issue was again addressed in Biancofiore at 212 and that court cited Chief Justice

Lamer in R.v. M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.c.), where he states that punishment

must among other considerations reflect the moral culpability of the offender, having regard to the

intentional risk-taking of the offender, the consequential harm caused by the offenders conduct

and the normative character ofthe offenders conduct.

Last, but clearly not least, the court in arriving at a proper sentence must consider the

rehabilitation of the offender. This often plays a substantial role in sentencing considerations

based in part on a view that the most effective means of ensuring the protection of the public is to

rehabilitate the offender and reduce the possibility of recidivism.

III YOUTH AND DRIVING OFFENCES

Where a young person, within the meaning of the Young Offender Act is charged with a impaired

driving offence, that young person is to be dealt within accord with the principles and provisions

of the Young Offenders Act. This would, of course, include the fact that the young person would

be eligible for an alternative measures program however it would appear that Crown policy in

Saskatchewan precludes same.

On a finding ofguilt or an entry ofguilty plea, the young person is subject to any of the

dispositions set out in Section 20 of the Young Offenders Act. Section 14 states that where the

Court deems it advisable before making its disposition it may order a predisposition report

however Section 24(2) of the Young Offenders Act mandates a predisposition report where a

.' I

) 15

custodial sentence is being considered.

Minimum sentences as set out in the Criminal Code of Canada do not apply to young persons.

See:

R. y. T.(K.D.) (1986),28 C.C.C.(3d) 110 (N.S.C.A)

R. v. H(R.)1992, 77 C.C.C. (3d) 198 (D.C.A).

The Court has several dispositional options under Section 20 of the Young Offenders Act

including discharges, fines, community service hours, probation and custodial sentences (open or

closed).

If the Court imposes the disposition of a fine (s. 20(1)(b» the Court is directed by s. 21 (1) to have

regard for the present and future means of the young person to pay. The maximum fine that may

be imposed is $1,000.00. There is no default time attached to a fine imposed on a young person

and if the fine is not paid, the only recourse is a Section 26 breach charge. Section 21 (10) of the

Young Offenders Act allows for an application for further time to complete any disposition

imposed and would include an application to extend time to pay a fine.

The driving prohibitions under the Criminal Code apply to young persons. Section 20(1 )(h) states

that the Court may

" ...make any order of prohibition... that may be imposed under any Act ofParliament orany regulation made thereunder where an accused is found guilty or convicted of thatoffence"...

IV OTHER SENTENCING CONSIDERATIONS

A. USE OF PROBATION

Imposition of a period ofprobation is an additional sentencing option that could be considered by

the sentencing Court. Prior to the recent amendments to the Provincial legislation relating to

driving prohibitions, probationary orders were frequently imposed in addition to minimum

16

statutory sentences (fines or periods of incarceration). The terms of these orders were generally

designed both to require the accused to be involved in alcohol and addiction assessment,

treatment and counselling, and to facilitate and require entry in to the Drive Without Impairment

Programme (D.W.!.). With the new Provincial legislation and policies, such addiction screening

and treatment and the D.W.!. program are now often requirements for driver's licence

reinstatement, thus somewhat reducing the need for probation order to address these issues.

Clearly however, there will continue to be individual situations where probation would be a

reasonable option to continue to address individual needs. A period of probation requiring

further attendance at addiction counselling is usually recommended by Community Corrections to

follow placement at the St. Louis Rehabilitation Centre to ensure further intervention with respect

to alcohol problems and addictions.

B. AVAILABILITY OF TREATMENT RESOURCES IN CORRECTIONALCENTRE SYSTEM

The St. Louis Rehabilitation Centre is a specific 14 day program designed to provide residential

assessment, education and programming on alcohol and addiction. It is available to adult

offenders who are convicted of second or subsequent offenses and would "...benefit from

intervention and recovery services..." One of the goals of the programme is to develop an

individualized ongoing recovery plan with each offender.

Each correctional centre has specific addictions programming for inmates and may include such

programs as AA meetings, seminars and/or workshops. Attendance at these programs is , of

course, beyond the jurisdiction of the sentencing Court but may well be a consideration in

sentencing in cases where individuals show genuine interest in attending these programs.

)

\,I

Conditional Sentences in Drinking and Driving Cases

Parliament enacted Bill C-41 in September, 1996. One of the major amendments to the Criminal

Code was the introduction of a new type of sentence; the conditional sentence. Section 742.1

provides:

Where a person is convicted of an offence, except an offence that is punishable by aminimum tenn of imprisonment, and the court(a) imposes a sentence of imprisonment ofless than two years, and(b) is satisfied that serving the sentence in the community would not endanger the safety ofthe community and would be consistent with the fundamental purpose and principles ofsentencing set out in sections 718 to 718.2the court may, for the purpose of supervising the offender's behaviour in the community,order that the offender serve the sentence in the community, subject to the offender'scomplying with the conditions of a conditional sentence order made under section 742.3.

Unlike a suspended sentence, the offender is sentenced to a tenn of imprisonment. The sentence,

however, is served in the community subject to the conditions contained in the conditional sentence

order. If a condition of the order is breached the offender may be brought back before the Court.

If satisfied on a balance ofprobabilities that the breach occurred the Court may: (a) take no action;

(b) change the conditions; (c) suspend the conditional sentence and order that the offender serve a

portion of the unexpired sentence and then continue with the conditional sentence on the same or

new tenns or (d) tenninate the conditional sentence order and direct that the offender serve the

remainder ofthe sentence in custody (section 742.6(9)).

In Saskatchewan the Courts have accepted the new sentencing option with a great deal of

enthusiasm. Following is a number of cases where the Courts have considered the imposition of a

conditional sentence for offenses which involved drinking and driving.

1. R. v. Donna McDonald, (1997), 5 C.R.(5th) 189, 113 C.C.C. (3d) 418 (Sk.C.A.)

The first opportunity that the Saskatchewan Court ofAppeal had to consider the impact ofBill C-41

was in the case involving Donna McDonald. The original sentence imposed in Queen's Bench was

decided prior to the new legislation but by the time the appeal was heard Bill C-41 had been enacted.

The Court ofAppeal considered the use ofthe conditional sentence option in a criminal negligence

) causing death appeal.

McDonald was a case where a 33 year old woman attended a house party which spilled out into the

street. Everyone at the party, including the offender, had consumed a large quantity of alcohol. A

fight broke out on the street. The offender drove her 1/2 ton truck past the fight twice at a high rate

of speed. On the third pass she drove directly toward the crowd of people at a high rate ofspeed.

Two people were able to jump out of the way but the victim was facing away and did not see the

vehicle approaching. She was struck by the truck and killed instantly. The offender provided two

breath samples which readings of .20 were obtained. She pleaded guilty after a preliminary inquiry

and approximately three years after the offence.

Ms. McDonald had 1 impaired driving conviction from 1989. She was the mother of6 children and

was employed by the band. She lost a portion ofher right leg above the knee as a result of a hunting

accident and walks with the aid of a prosthesis. She was accepted by the court as being truly

remorseful and had not consumed alcohol in the three years between the offence and sentencing. The

victim was a married woman with 8 children. Due to the loss of their mother, the children were

taken into relative's homes. Their father had to leave the community as he felt that he was being

chastised and also to look for work.

Milliken Q.BJ. sentenced Ms. McDonald to 2 years probation, 9 months electronic monitored house

arrest and 2 year driving prohibition. The Crown appealed the sentence. On March 5, 1997 a

majority ofthe Court ofAppeal (Sherstobitoff lA. and Lane J.A.) allowed the Crown appeal and

increased the sentence to 18 months incarceration.

The majority of the Court of Appeal relied heavily upon the need to avoid disparity in sentencing

citing R. v. Schneider (1994), 123 Sask.R. 162. In Schneider the Court ofAppeal affirmed a term

of imprisonment of 15 months for a first offender convicted of impaired driving causing death in

circumstances less blameworthy than usual. (Mr. Schneider went through a red light, struck another

vehicle and killed the driver. His BAC was .10. He was a 40 year old employed man with no

previous criminal record. Defence asked the Court to impose electronic monitoring. The Court of

Appeal held that "use of electronic monitoring in respect of sentences for this offence would not

adequately reflect the gravity of the offence, nor serve adequately to deter either the offender or

the general public from committing like offenses. Nor would it, in a case such as this where a

death has occurred, maintain public confidence in the administration of justice" .).

In McDonald Lane lA. noted that although Schneider pre-dated Bill C-41 the reasoning remained

sound. The need to maintain parity in sentencing was stressed. Sherstobitoff J.A. and Lane J.A.

rejected, as inappropriate a conditional sentence. SherstobitofflA. summed up his views as follows:

"Notwithstanding that the facts of this case make it amenable to application of s.742.1, and the imposition of a conditional sentence to be served in the community,such a sentence would not, given the serious nature of the offence of causing deathby criminal negligence, and given the circumstances of the offence, constitute a fitsentence. This is a case where the fundamental principle of sentencing stated in s.718.1, that a sentence be proportionate to the gravity of the offence and the degreeof responsibility of the offender, must, along with the objectives of deterrence,denunciation, and retribution, prevail over the other sentencing principles, includingthose found in s. 718.2(d) and (e) [calling for less restrictive sanctions whereappropriate and reasonable in the circumstances].In this respect, what was said in Schneider respecting the continuing problem ofdeath and injury as a result of drinking and driving, and respecting Parliament'sdirection to impose more severe penalties in respect ofsuch offenses, remains valid."

The majority indicated that normally a sentence of 2 years would be appropriate. However due to

extenuating personal circumstances they would decrease the sentence by 6 months. Additionally,

the offender was given credit for the time which she spent on the electronic monitor. In the result

a sentence of6 months was imposed consecutive to that which she had already served. A minority

decision by Vancise J. A. would have allowed the Crown appeal and impose a conditional sentence

of 2 years less 1 day. Although Vancise J. is in the minority as to the final disposition in this

particular case, his analysis of how courts should approach conditional sentences is endorsed by

Lane l and is therefore the majority view on that issue.

2. R. v. Keller, A.A. (Court ofAppeal Unreported decision; July 10, 1997)

Following McDonald the Court of Appeal had a second opportunity to consider conditional

sentences in the context of a drinking and drivingcase. In R. v. Keller, A.A. the offender appealed

a sentence of 2 years less one day imprisonment imposed for an impaired driving causing death

conviction. Ms. Keller was a 22 year old married female who had no previous criminal record. The

circumstances of the offence included her driving at a speed of between 100 and 120 kmph down

Broad Street in Regina late at night. She lost control on a bridge. A passenger was thrown from the

vehicle and killed. Another passenger suffered injuries causing a permanent disability. This

passenger is unable to walk for other than short periods and can no longer live on her own. The

offender's breathalyser readings were .180. At trial defence had suggested to the Court that a

conditional sentence was appropriate. The trial judge disagreed, noting that the offender had shown

little remorse for her actions. An appeal was filed.

The Court ofAppeal (Cameron, Wakeling and Sherstobitoff lJ.A.) held that the sentence was fit in

all the circumstances having regard for denunciation, deterrence, the gravity of the offence, the

accused's degree ofresponsibility, and the need for parity in sentencing. Less restrictive sanctions

than imprisonment, (ie. a conditional sentence) were inappropriate in the circumstances. The Court

wrote:

"In sentencing for crimes of the nature of those committed in this case, the publicinterest weighs heavily in the balance, a point this and other courts have often beenat pains to make, stressing the need to denounce strongly conduct of this character,to try diligently to deter it, and to strive continually to overcome the attitudes thatspawn it. And so this court has said many times, having regard for these objectivesin particular, that crimes ofthis nature will be met with a firm sentencing hand in theinterests of the safety ofthe public. In addition to R. v. Schneider, see, for example,R. v. Powell (1990), 81 SaskR. 301; R. v. Pearman (1991), 89 SaskR. 156; R. v.Paul (1991), SaskR. 199; andR. v. Kahpeepatow (1992),97 SaskR. 90."

The Court concluded that the trial judge had not erred in following the majority decision in

McDonald.

3. R. v. M. T. Warder (Unreported SaskC.A. May 21, 1998)

The Crown's application for leave to appeal the conditional sentence imposed by the trial judge was

denied by the Court ofAppeal. The circumstances were that the offender, a 28 year old male with

no previous criminal record pleaded guilty to impaired driving causing bodily harm. Mr. Warder

went through a stop sign, apparently speeding, and struck a police car. Two police officers and three

high school students who were on a "ride along" as members ofS.A.D.D. were in the vehicle that

was struck All five sustained various degrees of injuries.

)At trial the Crown asked for a 9 month period of incarceration. The Court imposed a 9 month

conditional sentence including 150 hours community service work and electronic monitoring. He

further received one year probation with 100 hours of community service work. The Crown

appealed. The Court ofAppeal reserved the decision and then denied leave to appeal without issuing

reasons.

4. R. v. Alexander Kakakaway (Sask.c.A. Unreported decision, September 10, 1998)

Recently the Court ofAppeal has considered the imposition ofa conditional sentence for 2 years less

one day with 6 months electronic monitoring for a driving while prohibited conviction. On

September 10, 1998 the Crown appealed the sentence imposed on Alexander Kakakaway. The

circumstances of the offence were not remarkable. Mr. Kakakaway was spotted driving a motor

vehicle by an officer who knew he was disqualified. He was stopped and the officer noted a smell

of alcohol on the accused's breath. An open beer had been dumped in the car. At the time the

accused was on probation. He had a substantial criminal record consisting of 11 driving while

disqualified convictions and 8 drinking and driving convictions. The Court of Appeal (Vancise,

Wakeling and Jackson llA.) held that the trial judge erred in imposing a conditional sentence. Mr.

Kakakaway was clearly a danger to the community and therefore the conditions of section 742.1

were not met. The Court commented that although he deserved a penitentiary term, as the offender

had completed 4 months on electronic monitoring he was sentenced to 2 years less one day

imprisonment.

5. R. v. Melnyk (1997) 156 Sask.R. 179 (SaskQ.B.)

The 21 year old offender pleaded guilty to.dangerous driving causing death. The facts were that he

was driving in excess ofthe speed limit. He failed to observe the highway change from two lanes

to four lanes. He struck a sign in the median and lost control of the vehicle which rolled. A

passenger was killed. The offender's ability to drive was impaired by alcohol to some extent,

although he was not likely over the legal limit. Gerein Q.B.J. characterized it as a mistake in

judgment as opposed to wilfully and deliberately engaging in dangerous driving practices. He had

no prior criminal record and was remorseful.

Mr. Melnyk was sentenced to 15 months conditional sentence, 18 months probation and a three year

driving prohibition.

6. R. v. Hogan (1997) 156 Sask.R 203 (Sask.Q.B.)

The offender pleaded guilty to dangerous driving causing bodily harm. The 19 year old offender lost

control of the vehicle which went through a ditch and rolled over. A passenger sustained serious

injuries. He had been speeding and his breathalyser readings were 130 and 120. There was some

forethought and deliberation about the driving which extended both over a period of time and

distance travelled. The offender had no criminal record and was remorseful. Gerein Q.BJ.

sentenced Hogan to 90 days imprisonment to be served intermittently followed by 12 months

probation. An 18 month driving prohibition was also imposed. The court held that a conditional

sentence was not appropriate as some total deprivation of liberty was required to express proper

denunciation and meaningful deterrence.

7. R. v. Biancofore (1998),119 C.C.C. (3d) 344 (Ont.C.A.)

In Biancofore the Court considered the propriety ofan 18 month conditional sentence for dangerous

driving causing bodily harm, driving while over .08 and taking automobile without consent. Serious

injuries were sustained by passengers of a vehicle which the offender was driving after he struck a

concrete pole and guardrail. He had been driving at excessive speeds while weaving in and out of

traffic along major streets. His BAC was 110 and 97. He was 23 years old and had only one

previous conviction for mischief.

The Ontario Court of Appeal held that the sentence was improper and imposed a sentence of 15

months incarceration. They commented that there are offenses that are more likely to be influenced

by a general deterrence. Incarceration for crimes like those committed by this accused can be

justified on the basis ofgeneral deterrence. At page 357 the Court stated:

"The drinking and driving offenses occupy a unique position in the criminal law.Unlike most other criminal offenses, such as crimes of violence or crimes againstproperty, the stigma attached to the drinking and driving offenses is often notmatched by the objective gravity of these offenses. Some gains have been made inthe recent past. There is a greater public awareness of the dangers of drinking anddriving. Crime prevention initiatives such as the RI.D.E. programmes have also

)j

contributed to the stigmatization of drinking and driving. Parliament and thelegislatures have given increased powers to the police to assist in the detection ofimpaired drivers.Crime prevention and public education initiatives are not, however, required to carrythe entire burden. Section 718 directs that the fundamental purpose of sentencing is ."to contribute along with crime prevention initiatives" to respect for the law and themaintenance ofajust, peaceful and safe society. As Ms. Gallin pointed out, it is tooeasy for otherwise law-abiding people to view what happened in this case as an"accident", an unfortunate consequence of an error in judgment, rather than acommission ofa criminal offence. Sentencing courts should be careful to ensure thatthey do not bolster that view of serious drinking and driving offenses.The pressing need to ensure that the drinking and driving offenses not bedestigmatized might not be met by a conditional sentence in this case. Moreimportantly, there is no reason why the denunciatory burden should not be borne bythis offender. "

With regard to proportionality, the Ontario Court ofAppeal quoted Lamer C.lC. in R. v. U(CA.),

[1996] 1 S.C.R. 500 at pages 557-58:

"Retribution in a criminal context, [as contrasted with vengeance] represents anobjective, reasoned and measured determination ofan appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to theintentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character ofthe offender's conduct. Furthermore, unlikevengeance, retribution incorporates a principle of restraint; retribution requires theimposition of a just and appropriate punishment, and nothing more.

8. R. v. Proulx (1998),121 C.C.C. (3d) 68 (Man.C.A.). (Appl'n for leave to appeal to the Supreme

Court of Canada filed December 16, 1997)

The 18 year old offender pleaded guilty to dangerous driving causing death and dangerous driving

causing bodily harm. He was driving a car which he knew was not mechanically sound on slippery

roads. Although not a factor in the result, the offender had consumed some alcohol. He had only

7 weeks experience as a licensed driver prior to the accident. His driving actions were observed to

be erratic. The passenger in his vehicle was killed as a result ofthe accident. The driver of another

car was injured. The offender was in a coma for some time but recovered from his injuries. The

Manitoba Court ofAppeal allowed the offender's appeal from a sentence of 18 months incarceration

and imposed a conditional sentence. They iIidicated that the trial judge erred in not considering the

principles of sentencing globally. It is contrary to Parliament's intent for the sentencing judge to

single out anyone factor and to give it substantial weight to the exclusion of the other listed factors

when the judge is making a decision under s. 742.1 (b). The sentencing judge erred "in concluding

that a conditional sentence would not be consistent with the principle ofdenunciation. In revisiting.

the factor of denunciation, she afforded it undue weight. She failed to recognize that allowing the

offender the opportunity to serve his sentence in the community does not eliminate the denunciatory

effect of the sentence, nor does it render the sentence inconsistent with that principle."