Court of Appeal for Ontario
Before: Doherty, Watt and Miller JJ.A.
Between:
Her Majesty the Queen Respondent
and
Kunal Bulland Appellant
Counsel: Jessica Zita, for the appellant Christine Tier, the respondent
Heard: In writing
On appeal from the sentence imposed by Justice Faieta of the Superior Court of Justice on July 2, 2019, reported at 2019 ONSC 4220.
REASONS FOR DECISION
1The appellant was convicted of impaired driving causing bodily harm after a trial before a judge alone. He was sentenced to 39 months in jail. The appellant initially appealed conviction and sentence, but has abandoned his conviction appeal.
2The facts surrounding the accident giving rise to the charge are fully and carefully set out in the trial judge’s reasons for conviction and sentence. We need not repeat them. It is important, however, to acknowledge that the person hit by the appellant suffered catastrophic permanent injuries. He will never be able to look after himself, or work again.
3At trial, Crown counsel asked for a sentence of 2 years, less a day, to be followed by probation for 3 years. The appellant asked for an intermittent sentence of 60 to 90 days.
4During the Crown’s submissions, the trial judge questioned whether a penitentiary sentence might not be appropriate. The Crown acknowledged a low penitentiary sentence was within the range of sentencing, but maintained the position that the appropriate sentence was one of 2 years, less a day, to be followed by 3 years probation.
5The trial judge did not suggest to defence counsel during her submissions he was considering “jumping” the Crown’s request for a jail sentence of 2 years, less a day.
6The trial judge imposed a sentence of 39 months, 15 months longer than the sentence suggested by the Crown. The trial judge stressed the victim’s catastrophic injuries. He also referred to the appellant’s involvement years earlier in a drinking and driving incident that resulted in a conviction for careless driving. The appellant had promised the judge that he would not drink and drive again. The trial judge also noted the appellant had not taken the opportunity he had to avoid the crash. Finally, the trial judge referred to a prior single conviction for an unrelated assault. The trial judge offered no explanation for imposing a sentence well in excess of the sentence requested by the Crown.
7Crown counsel on appeal acknowledges, correctly in our view, the trial judge should have put defence counsel on notice he was contemplating imposing a significantly longer sentence than the Crown had requested. The trial judge also should have indicated in his reasons why he was departing so significantly from the position taken by the Crown: see R. v. Grant, 2016 ONCA 639, at paras. 164-65.
8The procedural errors described above are properly addressed by this court determining and imposing a fit sentence, based on the submissions made at trial and in this court. The Crown maintains the position it took at trial. The sentence should be 2 years, less a day, followed by 3 years probation. The defence asks this court to reduce the sentence, but asks that the appellant be allowed to remain in the penitentiary where he is apparently benefitting from programming. Interestingly, the appellant does not ask this court to impose a penitentiary sentence of 2 years, but instead asks the court to impose a sentence of 2 years, plus 1 day. Probation is available on a two-year sentence, but not on any sentence over two years.
9A penitentiary sentence somewhat in excess of two years would have fallen within the range of appropriate sentences. However, having regard to the carefully considered position of the Crown taken at trial and maintained on appeal, we think a sentence of two years is the appropriate sentence. We say two years, rather than two years, less a day to accommodate the appellant’s preference to remain in the penitentiary for the rest of his sentence.
10We also agree with the Crown that a three-year probation term is an essential component of an appropriate sentence in the circumstances of this case. The added three-year supervisory period afforded by the probation term is fully warranted here.
11The appeal is allowed, the sentence is varied to two years, to be followed by three years probation on the following terms:
keep the peace and be of good behaviour;
report within two working days of release from custody and thereafter as directed by your probation officer;
do not occupy the driver’s seat of a motor vehicle;
do not own a motor vehicle in Canada;
attend all counselling, specifically for alcohol abuse, as your probation officer shall direct and sign any necessary release to permit your attendance and compliance to be monitored by your probation officer;
attend and complete the “Missing You” program at a time and place to be arranged by your probation officer; and
no contact, directly or indirectly with Ian Godi-Chevrier or Bernice Chevrier, except through legal counsel.
12The DNA order made by the trial judge and the five-year driving prohibition are not challenged and remain in effect.
“Doherty J.A.”
“David Watt J.A.”
“B.W. Miller J.A.”
