DATE: 20031027
DOCKET: C39095
COURT OF APPEAL FOR ONTARIO
LABROSSE, ABELLA and CRONK JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Christopher Webb
for the appellant
(Appellant)
- and -
PETRO PAK TO LAM
R. Graham Zoppi
for the respondent
(Respondent)
Heard: September 2, 2003
On appeal from the sentence imposed by Justice Alfred J. Stong of the Superior Court of Justice, sitting with a jury, on October 11, 2002.
LABROSSE J.A.:
[1] Following his trial by judge and jury, the respondent was found guilty of the offences of criminal negligence causing death and manslaughter as a result of an automobile accident. For the offence of criminal negligence causing death, the respondent was sentenced to imprisonment for two years less a day, followed by probation for a period of three years, and a lifetime driving prohibition. The conviction for manslaughter was judicially stayed. The Crown appeals the sentence.
[2] The accident occurred on a busy six-lane highway in a built up commercial area at one of the busiest times of day. Prior to the collision, the respondent was engaged in a “show of speed” with another automobile which lasted less than one minute. He had modified his vehicle for both the appearance and ability to attain high speeds. At the time of the collision, the respondent was travelling at an estimated speed of 170 km/h in a 70 km/h zone. As a result of the collision, the respondent suffered a brain haemorrhage and retrograde amnesia. He cannot recall the events leading to the collision, nor the collision itself.
[3] The victim was a 29-year old married woman and mother of two young children aged 5 and 3. She was described as a fine person who loved life and who was close to her sons. The collision and resulting death had serious impact on the family and friends of the victim and witnesses to the horrific crash. Her sons, in particular, continue to struggle with the loss of their mother.
[4] The respondent was sent to Canada from Hong Kong at the age of 16. At trial, he was described as a loner with an apparent stoic disposition, and there was evidence that his emotional development may have been hampered as a result of being sent to a new country at a young age without immediate family support. At the time of the accident, the respondent was 26 years old and single, with no criminal record and no pattern of alcohol or drug use. His driving record consisted of a single speeding violation. He was employed as a sales representative selling computer equipment and was also a part-time student at Ryerson University where he achieved high marks while studying for a degree in computer science software engineering. He is generally known as being a reliable and punctual person with no known history of violence or aggression. The pre-sentence report, generally positive, described the respondent as a suitable candidate for community based supervision since he had no criminogenic factors that might suggest a risk of re-offending.
[5] At the sentencing hearing (and in this court), the Crown submitted that in the circumstances of this case, the proper range of sentence for criminal negligence causing death was between three and five years imprisonment. The defence argued in favour of a sentence of between 18 months to 2 years less one day, to be served conditionally.
[6] In his reasons, the trial judge viewed this case “to be one of the most extreme examples of both a wanton and reckless disregard for the lives and safety of other persons in the operation of a motor vehicle as could possibly be imagined.” Although another vehicle was involved, the trial judge did not conclude that the respondent was involved in a race with the other vehicle. However, he noted that the two vehicles were “at least engaged in a show of speed with each other” at the time of the accident. Even though the respondent presented a stoic appearance during the process, trial and sentencing, the trial judge was “not prepared to find” that the respondent was not “remorseful for what he had done”. The trial judge nevertheless recognized that the personal deterrent aspect of sentencing for this accused person was secondary to that of general deterrence and that the imposition of a conditional sentence, in the circumstances of this case, would send the wrong message to the community.
[7] As a result, the trial judge imposed a sentence of imprisonment of two years less one day, to be followed by probation for three years, including the performance of 240 hours of community service, plus a lifetime driving prohibition.
[8] Criminal negligence causing death is a serious offence which carries a maximum sentence of life imprisonment. Attached to these reasons, as “Schedule A”, is a sampling of sentences imposed by various courts for the offence of criminal negligence causing death. These samples demonstrate the wide divergence of punishments for this offence and the impact of certain factors on the severity of the sentence. Also included in the schedule are numerous dangerous driving causing death cases which were relied on by the parties. These cases have generally attracted lighter sentences than those imposed in the criminal negligence causing death cases.
[9] On the basis of the existing case law, I cannot accept the Crown’s submission that there is a range of between 3 to 5 years for the commission of this offence. It is important at the outset to restate the position of this court with respect to a range in criminal negligence cases. In R. v. Linden (2000), 2000 ONCA 15854, 147 C.C.C. (3d) 299 (Ont. C.A.), the court stated that as a result of the many factual possibilities in criminal negligence causing death cases, there is no set range of sentence for this offence. At para. 2, the court said:
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 … [c]ases can be found in the reformatory range and there are even examples of suspended sentences [emphasis added].
[10] However, while the court in Linden stated that there is no set range for the criminal negligence causing death offence, it recognized that driving offences involving reckless conduct and the consumption of alcohol are generally subject to more severe sentences. In addition to the consumption of alcohol or drugs, courts have also treated multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident as aggravating circumstances.
[11] In the present case, the modifications that the respondent made to his automobile and the show of speed, as found by the trial judge, are aggravating circumstances. However, unlike many cases of the “worst offence” nature, there was no alcohol or drug use, no street racing, no reckless driving for a lengthy period of time, no attempt to evade the police or leave the scene of the accident, and no criminal or significant driving record. Moreover, the respondent was of impeccable background and prior good character, and had respected and obeyed his strict bail conditions for over 29 months, leading up to the imposition of the sentence.
[12] Although the consequences of the offences were tragic, the sentence of imprisonment of two years less one day, plus probation for three years, including the performance of 240 hours of community service and a lifetime driving prohibition, is not unfit. Among other things, it goes a long way towards ensuring that the respondent will never drive in a similar manner again. The sentence therefore is not so inadequate that the interests of justice require the court’s intervention.
[13] Particularly relevant in reviewing the adequacy of the sentence imposed in this case are R. v. Guay (1986), 15 O.A.C. 111 and R. v. Persaud (2002), 2002 ONCA 44931, 159 O.A.C. 134. In those two cases, this court imposed reformatory sentences of 18 or 20 months respectively even though both offenders were convicted of criminal negligence causing death.
[14] The sentence imposed by the trial judge is entitled appropriate deference. In my view, the trial judge did not commit an error in principle. While the sentence imposed could have been more substantial, the case law does not support a conclusion that the sentence imposed is demonstrably unfit. See R. v. C.A.M., 1996 SCC 230, [1996] 1 S.C.R. 500.
[15] Although I have concluded that the sentence is not demonstrably unfit, there is another important factor that was argued by the parties that militates against increasing the sentence imposed on the respondent. The respondent was sentenced on October 11, 2002. In early March 2003, the transcript was available for review by the trial judge but was not returned to the Crown until July 2003. As a result of the delay, the appeal was not heard until September 2, 2003, 11 months after the respondent was first sentenced. No part of the delay is attributable to the respondent. By the time the appeal was heard, the respondent had been released on parole since July 18, 2003, having been in custody for approximately 9½ months.
[16] This court has consistently held that reincarceration in itself imposes additional hardship on an offender such that it has generally been hesitant to reincarcerate the offender unless the sentence is so grossly inadequate that the interests of justice require the court’s intervention. (See R. v. Cheng (1991), 50 O.A.C. 374.)
[17] The trial judge found that the respondent was otherwise of good character and not in need of specific deterrence. The pre-sentence report was favourable to the respondent and concluded that he was a suitable candidate for community supervision. This appears to have been confirmed by the Parole Board which, as I have said, granted him early release in July 2003. The sentence still includes a large amount of community service hours. The respondent has conducted himself properly since his release and “[t]o the extent that additional imprisonment might accomplish general deterrence, it would be of minimal significance compared to the impact of further punishment upon this youthful person who shows no present need except to get ahead with a useful life”, R. v. McIntyre, [1993] O.J. No. 2971 at para. 8 (C.A.).
[18] Under the circumstances, the reincarceration of the respondent would therefore serve no genuine societal interest.
[19] For these reasons, I would dismiss the appeal.
Released: OCT 27 2003 Signed: “J.-M. Labrosse J.A.”
JML “I agree R.S. Abella J.A.”
“I agree E.A. Cronk J.A.”
Criminal Negligence Causing Death Cases
Name of Case
Court
Date
Offence
Alcohol
Racing
Criminal Record
Driving Record
Police Chase or Fled Scene
Sentence
Driving Prohibition
R. v. Regier
Ont. C.J. (Gen. Div.)
1998
Criminal Negligence Causing Death x1 Bodily Harm x1
Yes
No
Yes, alcohol and driving related record
Yes
No
12 months in the community
12 months
R. v. Boyd
Ont. C.J. (Gen. Div.)
1998
Criminal Negligence Causing Death x1 Impaired Driving x1
Yes
No
No
Yes, major speeding infractions
No
Conditional Sentence 2 years less one day; 240 hours community service
5 years
R. v. Guay
Ont. C.A.
1986
Criminal Negligence Causing Death x1
Yes
No
No
No
No
18 months imprisonment
R. v. Persaud
Ont. C.A.
2002
Criminal Negligence Causing Death x1
Yes
No
No
No
Yes – Fled Scene
20 months imprisonment
7 years
R. v. Sandreswaren
Ont. C.J.
2001
Criminal Negligence Causing Death x1
Yes
No
Yes
Yes
No
2 years imprisonment, 3 years probation, 240 hours community service.
7 years
R. v. Andrzejczak
Ont. C.J.
2001
Criminal Negligence Causing Death x1
Yes, significant.
No
No
No
No
2 years less a day imprisonment, 3 years probation.
8 years
R. v. Gallant
Ont. C.A.
1989
Criminal Negligence Causing Death x1
Yes
No
Yes, significant
No
No
3 years imprisonment
3 years
R. v. Burcham
Ont. C.A.
1987
Criminal Negligence Causing Death x 3 Bodily harm x1
Yes, but sober
No
Yes, limited
Yes, limited
No
3 years imprisonment
R. v. McVeigh
Ont. C.A.
1985
Criminal Negligence Causing Death x 1
Yes, very drunk.
No
No
No
No
3 years imprisonment
R. v. Tang
BC Prov. Ct.
2001
Criminal Negligence Causing Death x1
No
Yes
Yes, limited.
Yes, serious
Yes – Police chase, but voluntary surrender a day later
4 years imprisonment
10 years
R. v. Lebeau
Ont. C.J.
2000
Criminal Negligence causing Death x 4
Yes
No
No
Yes
No
4 years imprisonment
15 years
R. v. Revoy
Alta. C.A.
1993
Criminal Negligence Causing Death x1
Yes
No
No
Yes
No
4 years imprisonment
5 years
R. v. Linden
Ont. C.A.
2000
Criminal Negligence Causing Death x 1
Yes
No
Yes
No
No
5 years imprisonment high, but not unreasonable
15 years
R. v. Anderson
B.C.C.A
1992
Criminal Negligence Causing Death x2 Bodily Harm x1
Yes
No
Yes, limited.
Yes, but stale
No
5 years imprisonment
15 years
R. v. Gucciardi
Ont. CJ (Gen. Div.)
1996
Criminal Negligence Causing Death x1
Yes
No
Yes, one previous conviction for “theft over” 13 years ago.
No
No
5 years imprisonment.
10 years
R. v. Lake
Ont. C.A.
1996
Criminal Negligence Causing Death x2 Bodily Harm x3
Yes
No
Yes, four prior convictions for drinking and driving
No
No
6 years imprisonment
10 years
R. v. Parkes
Ont. C.J.
2002
Criminal Negligence causing Death x1
Yes
Chased another vehicle, and hit stationary vehicle
Yes, several convictions for impaired driving
No
No
8 years imprisonment
20 years
R. v. Peladeau
Que. C.A.
1981
Criminal Negligence Causing Death x3
Yes
No
No
No
No
Probation for 2 years, 120 hours community service
R. v. Cedras
Que. C.A.
1981
Criminal Negligence Causing Death x2
Yes
No
No
No
No
Suspended sentence for period of 2 years, 120 hours community service
3 years
Dangerous Driving Cases
Name of Case
Court
Date
Offence
Alcohol
Racing
Criminal Record
Driving Record
Police Chase or Fled Scene
Sentence
Driving Prohibition
R. v. Reining
Ont. C.A.
1976
Dangerous Driving Causing Death x2 Bodily Harm x1
No
Yes
No.
Yes, lengthy
No
18 months probation
5 years
R. v. Hollinsky
Ont. C.A.
1995
Dangerous Driving Causing Death x2
No
No
No
No
No
Suspended sentence on both counts; 3 years probation; 750 hours community service
2 years
R. v. Hargreaves
Ont. Sup. Ct. J.
1999
Dangerous Driving causing Death x1
No
Not formally, but something akin to racing occurred
No
No
No
15 months served conditionally in the community, 100 hours of community service
R. v. Chan
Ont. C.J. (Gen. Div.)
1997
Dangerous Driving Causing Death x1
No
No
No
Yes, speeding offences
No
18 months imprisonment in community with conditions; 240 hours community service within 18 months
3 years
R. v. Thornton
B.C.S.C.
2000
Dangerous Driving Causing Death x1
No
No
No
Yes, lengthy
No
18 months conditional sentence; 240 hours community service
2 years
R. v. Khosa
B.C. S.C.
2003
Dangerous Driving Causing Death x1
No
Yes
No
No
No
Conditional sentence 2 years less one day; 3 years probation; 240 hours community service
5 years less one day
R. v. Parker
N.S.C.A
1997
Dangerous Driving Causing Death x2 Bodily Harm x2
No
No
No
No
No
2 years less a day served in the community; 240 hours of community service
10 years
R. v. Williams
Alta. C.A.
2003
Dangerous Driving Causing Death x1
No
No
No
No
Yes - fled scene, rammed another vehicle during escape.
2 years less a day conditional sentence of imprisonment; 240 hours community service
7 years
R. v. Delaittre
Sask. C.A.
1998
Dangerous Driving causing Death x1
No
Yes
No
Yes, speeding infractions before and after incident
No
15 months imprisonment, $250 surcharge
3 years
R. v. Ross
Ont. S.C.J.
2001
Dangerous Driving Causing Death x1 Bodily Harm x2
No
No
No
No
No
2 years less a day
5 years
Cases Cited in Schedule “A”
R. v. Anderson (1992), 1992 BCCA 6002, 74 C.C.C. (3d) 523 (B.C.C.A.)
R. v. Andrzejczak, [2001] O.J. No. 1075
R. v. Boyd (1998), 33 M.V.R. (3d) 37 (Ont. C.J. Gen. Div.)
R. v. Burcham (1987), 23 O.A.C. 21
R. v. Chan (1997), 31 M.V.R. (3d) 254 (Ont. C.J. Gen. Div.)
R. v. Delaittre (1998), Sask. R. 195 (Sask. C.A.)
R. v. Gallant (1989), 36 O.A.C. 229
R. v. Guay (1986), 15 O.A.C. 111
R. v. Gucciardi (1996), 38 M.V.R. (3d) 48 (Ont. C.J. Gen. Div.)
R. v. Hargreaves, [1999] O.J. No. 5171 (Ont. Sup. Ct. J.)
R. v. Hollinsky (1995), 1995 ONCA 8929, 103 C.C.C. (3d) 472 (Ont. CA)
R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (B.C.S.C.)
R. v. Lake, [1996] O.J. No. 1786 (Ont. C.A.)
R. v. Lebeau (2000), 50 M.V.R. (3d) 204 (Ont. C.J.)
R. v. Linden (2000), 2000 ONCA 15854, 147 C.C.C. (3d) 299 (Ont. CA)
R. v. McVeigh (1985), 1985 ONCA 115, 22 C.C.C. (3d) 145 (Ont. CA)
R. v. Parker (1997), 1997 NSCA 14391, 116 C.C.C. (3d) 236 (N.S.C.A.)
R. v. Parkes (2002), 36 M.V.R. (4th) 79 (Ont. C.J)
R. v. Persaud (2002), 2002 ONCA 44931, 159 O.A.C. 134
R. v. Regier, [1998] O.J. No. 3133 (Ont. C.J. Gen. Div.)
R. v. Reining, [1976] O.J. No. 1064 (Ont. C.A.)
R. v. Revoy (1993), 49 M.V.R. (2d) 304 (Alta. C.A.)
R. v. Ross, [2001] O.J. No. 2623 (Ont. S.C.J.)
R. v. Sandreswaren (2001), C.R. (5th) 162 (Ont. C.J.)
R. v. Tang, [2001] BCPC 62 (B.C. Prov. Ct.)
R. v. Thornton (2000), 6 M.V.R. (4th) 127 (B.C.S.C.)
R. v. Williams, [2003] A.J. No. 864 (Alta. C.A.)