COURT OF APPEAL FOR ONTARIO

DATE: 20000731

DOCKET: C33038

RE: HER MAJESTY THE QUEEN (Respondent) – and – J.L. (Appellant)

BEFORE: ROSENBERG, MacPHERSON and SHARPE JJ.A.

COUNSEL: Andras Schreck, for the appellant

Laura Hodgson, for the respondent

HEARD: July 27, 2000

On appeal from the sentence imposed by The Honourable Mr. Justice

R.J. Richards dated July 27, 1999

ENDORSEMENT

[1] This is an appeal from the sentence of five years imprisonment and 15 year driving prohibition imposed by Richards J. following the appellant’s plea of guilty to one count of criminal negligence causing death. The trial judge held that the range for the offence committed by the appellant was three to seven years. He then imposed a sentence in the middle of that range of five years. Counsel for the appellant argues that the trial judge was correct in holding that the sentence should be in the middle of the range but argues that the trial judge erred in principle in finding that the range was three to seven years. He argues that the range is 18 months to five or six years and that only offences with much more aggravating factors such as multiple deaths and a serious related driving record should attract a sentence of five years or more. He argues that, had the trial judge identified the proper range and imposed a sentence in the middle of that range, the sentence should have been two-and-one- half years taking into account the six months of pre-trial custody.

[2] After noting that he had been presented with various appellate authorities by counsel for Crown and defence, the trial judge said that the sentence “ranges from that of three years to seven years, with eight years afforded for the worst offender and the worst set of facts”. He then stated that he would be dealing in the three to seven year range. If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causing death. The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range- setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.

[3] The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

[4] The conduct involved in this case was very serious and tended very much towards the deliberate endangerment of the public. The appellant, after consuming alcohol sufficient to place him over the .08 limit, was observed to drive erratically for an extended period of time. He drove at a high rate of speed on the streets of Oshawa, nearly losing control of the vehicle on at least one occasion. He then drove at increasingly higher speeds as he ran through three red lights. On the last occasion, he drove into the vehicle of the victim. At the time, the appellant was southbound and traffic could clearly be seen driving east and west at the intersection. There was absolutely no explanation for this conduct. The appellant admitted to the police that he had consumed twelve beers and a quantity of marihuana. The circumstances demonstrate a very high degree of moral blameworthiness, calling for a sentence that emphasized denunciation and general deterrence.

[5] As to the circumstances of the appellant, he had a prior criminal and young offender record, although no driving record. That record included convictions for theft, obstruct police, fail to appear, assault and possession of a scheduled substance. While the appellant had received some treatment for alcohol and drug addiction while serving sentence in 1998, it is apparent that this treatment was of only limited success as this offence was committed less than a year after his release. The appellant’s parents separated when he was a teenager and he was sexually abused on one occasion by an older boy. The appellant was only 21 years of age at the time of the offence, pleaded guilty and displayed genuine remorse for causing the death of the young victim.

[6] The deceased was a law student. Her family was devastated by her death.

[7] While one or the other of us might have imposed a slightly lesser sentence given the pre-trial custody, we have not been persuaded that the sentence of five years was clearly unreasonable. As to the alleged error in principle, there is no question that cases of this nature have attracted sentences of three to seven years depending upon the particular facts. This was manifestly not a case for a sentence of 18 months or even minimum penitentiary. While the sentence imposed by the trial judge was substantial, we cannot say that he erred in principle.

[8] The maximum driving prohibition for this offence is life. The trial judge imposed 15 years. As matters stood at the time of trial, the appellant represented a serious danger to the public when he was operating a motor vehicle. We would not interfere with the trial judge’s decision. After five years, the appellant can apply to the National Parole Board to have the prohibition varied.

[9] While leave to appeal sentence is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”