DATE: 20040326
DOCKET: C39465
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SIMMONS and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Scott C. Hutchison for the respondent
Respondent
- and -
SIRAGE BALCHA
Paul Burstein for the appellant
Appellant
Heard: February 26, 2004
On appeal from the convictions entered by Justice Peter A. Grossi of the Superior Court of Justice, sitting with a jury, on November 29, 2002 and from the sentences imposed on May 1, 2003.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellant, Sirage Balcha, was convicted of the offences of dangerous driving causing bodily harm and failing to stop at the scene of an accident. He received a total custodial sentence of two years less a day and a five year driving prohibition. The appellant appeals both the convictions and the sentence.
[2] On the conviction appeal, the appellant contends that the trial judge failed to explain to the jury how to properly consider the evidence of his mental state, in terms of both the mens rea for the offences and the automatism defence he advanced.
[3] On the sentence appeal, the appellant contends that the trial judge committed two errors: (1) he improperly characterized the appellant’s dangerous driving as ‘intentional’, and used this as an aggravating factor; and (2) he imposed a sentence that was outside the range for these offences and this offender.
B. FACTS
(1) The parties and the events
[4] Sirage Balcha was born in Ethiopia and immigrated to Canada in 1990 when he was twenty‑seven years old. He is now a Canadian citizen. He completed high school and attended Humber College for courses in art, technology and truck driving. In October 1998, he was employed as a truck driver. He had never been in trouble with the law.
[5] On Saturday, October 18, 1998, Balcha and his girlfriend, Fathia Osman, went dancing at a club called The Docks, near the harbour in Toronto. At about 2:00 a.m., the crowd in the club began to disperse. Balcha and Osman started walking to their rented car.
[6] Three young men, Benji Badua, Joel Beza and Gary Guaing, also left The Docks at the same time. In a random, unprovoked and vicious attack, Badua hit Balcha on the forehead with a beer bottle. The three young men then ran down Cherry Street.
[7] Balcha fell to the ground, bleeding profusely from his forehead. Osman assisted her boyfriend to get to the car. Balcha started the car and drove it down Cherry Street. The car mounted a curb and struck Guaing. The car then backed up over Guaing. Shortly after, the police stopped Balcha. Balcha was then taken to a hospital and his forehead was stitched up.
[8] Guaing was seriously injured. He suffered a dislocated jaw, two broken ribs, a sprained ankle, a punctured lung, a broken nose and fractured cheekbones. He spent nine days in hospital and ten months in rehabilitation.
[9] On January 21, 2000, Badua pleaded guilty to a charge of assault causing bodily harm for having struck Balcha with a beer bottle. He was given a three month conditional sentence, followed by six months of probation.
(2) The appellant’s trial
[10] Balcha was charged with dangerous driving causing bodily harm and failing to stop at the scene of an accident. He advanced an automatism defence.
[11] On November 29, 2002, a jury found Balcha guilty of both offences.
[12] On May 1, 2003, Grossi J. sentenced Balcha to two years less a day for dangerous driving causing bodily harm and one year concurrent for failing to stop at the scene of an accident. He also imposed a five year driving prohibition.
[13] Balcha appeals his convictions and sentence.
C. ISSUES
[14] The issues on appeal are:
Conviction
(1) Did the trial judge fail to explain to the jury how to properly consider the evidence of the appellant’s mental state, in terms of both the mens rea for the offences and the automatism defence advanced by the appellant?
Sentence
(2) Did the trial judge err by finding that the appellant had intentionally struck the victim and by using this as an aggravating factor in sentencing?
(3) Did the trial judge err by imposing a sentence that was outside the range for these offences and this offender?
D. ANALYSIS
The conviction appeal[^1]
(1) The trial judge’s instruction about the appellant’s mental state
[15] The appellant advanced the defence of automatism at his trial. On that issue, he bore the burden of proving on a balance of probabilities that he had acted involuntarily. The appellant does not challenge the trial judge’s instruction to the jury on this issue.
[16] However, the appellant’s mental state was also relevant to whether the Crown had proven that the appellant had driven dangerously. On that issue, the trial judge instructed the jury in this fashion:
Did Mr. Balcha operate the motor vehicle in a manner that was dangerous to the public? To decide whether Mr. Balcha operated the motor vehicle in a manner that was dangerous to the public you have to consider all the circumstances in which the driving occurred. Take into account but do not limit yourselves to the evidence of the nature, condition and use of the place where the driving occurred, the amount of both vehicular and pedestrian traffic actually there at the time and the amount of both vehicular and pedestrian traffic that might be reasonably expected to be there at the time. Dangerous operation of a motor vehicle involves more than just carelessness. Crown counsel must satisfy you beyond a reasonable doubt that Mr. Balcha’s driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances but you have to decide in all the circumstances not what Mr. Balcha meant to do, but rather, whether he drove in a manner that was a marked departure from the manner in which a reasonable, prudent driver would drive in the same circumstances. You must be satisfied that a reasonable person in similar circumstances should have been aware of the risk and of the danger involved by Mr. Balcha’s conduct. I have previously reviewed the evidence of driving with you. You will have the exhibits in your jury room. You will recall in the reconstruction exhibit there is evidence concerning the angle of the road approaching the bridge, the position of the road and the location of the sidewalk. You may wish to consider Mr. Balcha’s condition, what effect it may have on his driving to manoeuvre the road in the area. He was bleeding and Ms. Osman was administering to his wound. If you are not satisfied beyond a reasonable doubt that Mr. Balcha operated the motor vehicle in a manner that was dangerous to the public, you must find him not guilty. [Emphasis added.]
[17] The appellant submits that the trial judge erred in telling the jury that it “may wish to consider Mr. Balcha’s condition” in deciding whether the Crown had proven the element of dangerousness. The appellant contends that the jury should have been instructed that it was required to consider the appellant’s mental state on this issue.
[18] I disagree. In my view, a full and fair reading of the quoted passage establishes that the jury would have understood its obligation to assess the appellant’s circumstances in deciding whether dangerousness had been proven beyond a reasonable doubt. In the quoted passage, the trial judge directed the jury to consider “a reasonable person in similar circumstances”. He then went on to enumerate the appellant’s circumstances: “He was bleeding and Ms. Osman was administering to his wound.”
[19] It is true that the trial judge used the word ‘may’ rather than ‘must’. However, in jury cases, it is common for trial judges to use the word ‘may’ when they are summarizing evidence that the jury should consider. It is a question of style, even courtesy, which reflects the trial judge’s previous instruction that the jury is the sole fact finder in the trial. I do not think that the use of ‘may’, in the context of the entire quoted passage, would convey to the jury the impression that it could ignore the facts presented by the trial judge.
[20] The appellant also contends that the trial judge failed to make a clear distinction between the burden of proof with respect to the defence of automatism (balance of probabilities) and the Crown’s burden of proof with respect to the essential elements of the offence of dangerous driving causing bodily harm (beyond a reasonable doubt).
[21] I disagree. The trial judge made a clear transition in his charge from the defence of automatism to the elements of the offences of dangerous driving and failing to stop at the scene of an accident. Almost at the outset of his instruction on the latter, he said:
If you conclude that the Crown has proven the elements with respect to each count beyond a reasonable doubt you will find the accused guilty of that count or counts. If you conclude that the Crown has not proven the elements with respect to each count beyond a reasonable doubt you will find the accused not guilty of that count or counts.
[22] The trial judge gave a similar instruction in the component of his charge concerning the element of dangerousness in the offence of dangerous driving causing bodily harm. At the conclusion of his review of the evidence on this issue, he said: “If you are not satisfied beyond a reasonable doubt that Mr. Balcha operated the motor vehicle in a manner that was dangerous to the public, you must find him not guilty.”
[23] For these reasons, I would dismiss the appellant’s appeal against conviction.
The sentence appeal
(2) Intention as an aggravating factor
[24] In R. v. Hundal, [1993] 1 S.C.R. 867, the Supreme Court of Canada held that the mens rea for the offence of dangerous driving is based on a modified objective test; an accused will be convicted if the Crown proves that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances. Accordingly, the offence of dangerous driving potentially covers both intentional and unintentional conduct.
[25] In his reasons for sentence, the trial judge found as a fact that the appellant had intentionally driven his car at the victim and his two friends:
Mr. Balcha and his girlfriend got into his motor vehicle and drove south on Cherry Street in pursuit of the persons fleeing.
[T]he factual scenario for the majority of dangerous driving causing bodily harm situations are where an accident occurs and the driver does not seek to harm anyone. In this case, Mr. Balcha pursued and upon catching up to the running person, deliberately drove his car over him.
The only conclusion one can realistically arrive at from the evidence is that Mr. Balcha deliberately used his motor vehicle as a weapon to run down the person fleeing.
I have no doubt that the conduct was deliberate and it arose from rage and a desire for revenge.
[26] The trial judge regarded the deliberateness of the appellant’s conduct as an aggravating factor and he took account of it when he imposed sentence:
I have no hesitation in saying a period of incarceration is required in this case of driving which was most dangerous and deliberate and the victim was severely injured.
He returned to the intentional aspect of the appellant’s conduct when he rejected the option of imposing a conditional sentence:
Mr. Balcha’s moral culpability is simply too serious. The most important objective is to deter people who take the law into their own hands and to make them aware of the legal consequences should they choose to resort to this type of conduct.
[27] The appellant submits that, since the offence of dangerous driving does not require subjective mens rea, the trial judge was not permitted to find that the appellant’s conduct was intentional or deliberate for the purposes of sentencing. Given that subjective mens rea is not an element of the offence, in considering the appellant’s mental state the sentencing judge effectively imposed a sentence on the appellant for a more serious crime – for example, aggravated assault, assault with a weapon, or even attempted murder.
[28] I begin my analysis with several sentencing provisions of the Criminal Code, R.S.C. 1985. c. C-46. Under the heading ‘Fundamental Principle’, s. 718.1 states:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[29] Section 718.2 provides:
718.2 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….
[30] Section 724 provides:
724(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentence proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven,….
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact….
[31] These provisions, taken together, suggest that the trial judge was not only entitled to consider factors relating to the appellant’s mental state when he drove the car and struck the victim; he was required to do so. The degree of responsibility of the offender (s. 718.1) and aggravating circumstances relating to the offender (s. 718.2(a)) necessarily inject moral blameworthiness into the sentencing process. Moreover, the thrust of s. 724 is the search for truth regarding the circumstances of the offence. In that context, where there is evidence about the state of mind of the offender, it is difficult to see why such evidence should be ignored.
[32] The appellant does not take issue with these general observations about sentencing. However, he contends that they are inapplicable in this case for two reasons: (1) there is case law which prohibits the sentencing judge from finding facts that would constitute elements of a more serious crime than the one for which an accused has been convicted; and (2) in the alternative, in the particular circumstances of this case, it was unfair for the Crown to contend at the sentence hearing that the appellant intentionally sought to run down the victim and that the sentencing judge should regard this as an aggravating factor.
[33] On the first point, the principal case relied on by the appellant is R. v. Brown, [1991] 2 S.C.R. 518. In that case, the accused was charged with dangerous driving causing death and dangerous driving causing bodily harm as a result of a motor vehicle collision. At trial, it was argued by the Crown that the accused was speeding and had driven through a red light and that this manner of driving had caused the collision and resulted in death and injuries. The defence argued that the manner of the accused’s driving was not causally connected to the collision or the death or injuries. The jury found the accused not guilty of causing death or bodily harm by dangerous driving, but guilty of the included offence of dangerous driving simpliciter.
[34] In imposing sentence, the trial judge stated:
Now in this case, under the jury, they found you guilty of dangerous driving alone. And it’s probably fortunate for you that they did. But the facts still are that two people died as the result – or following that collision – following that collision. And two others suffer injuries that they are still being treated for today.
The trial judge imposed a sentence of one year imprisonment. A majority of the Saskatchewan Court of Appeal upheld that sentence.
[35] The Supreme Court of Canada allowed the appeal. The appellant argues that Brown stands for the proposition that a sentencing judge may not adopt a view of the facts that would justify a conviction for a more serious offence than the one for which an accused has been convicted.
[36] I do not agree with the appellant’s description of the ratio in Brown. In my view, the holding in Brown is narrower. Brown stands for the proposition that where the factual implication of a jury verdict is clear, a sentencing judge cannot ignore or disagree with it. As expressed by Stevenson J. at pp. 523‑24:
[T]he correct principle [is] that the sentencer is bound by the express and implied factual implications of the jury’s verdict.
The findings of dangerous driving, simpliciter, in the face of the more serious charges leaves no room for speculation. The jury has negated the factor of causation. This verdict was unambiguous and the trial judge was bound by it. So was the Court of Appeal.
[37] The situation in the present case is different. The appellant here was charged with a single driving offence and was convicted of that offence. In contrast, in Brown the accused was acquitted of two of the three related offences.
[38] Moreover, in Brown the jury acquittals specifically removed certain facts from consideration, namely, that the accused’s driving caused death and bodily harm. In the present case, the jury verdict of guilty did not resolve, or remove from consideration, some issues that were relevant for sentencing purposes. Specifically, because of the modified objective test for the mens rea element of dangerous driving, the jury verdict did not have to – and did not in fact – resolve whether the appellant’s driving was intentional, as the Crown argued. Since that issue was left unresolved, the trial judge was entitled to consider whether the appellant’s conduct was intentional (a factor relevant to his “degree of responsibility” pursuant to s. 718.1) and to conclude that it was an aggravating factor, provided that, pursuant to s. 724(3), he was satisfied beyond a reasonable doubt of the existence of the fact. This is precisely what the trial judge did.
[39] The appellant also relies on R. v. Doerksen (1990), 53 C.C.C. (3d) 509 (Man. C.A.). In that case, the accused was charged with impaired driving causing death. Through a process of negotiation, the Crown agreed to accept a guilty plea to the offence of impaired driving simpliciter, principally because the victim had parked her car diagonally across the Trans‑Canada Highway at night. Crown counsel explained why the Crown had accepted a guilty plea to the lesser charge:
The obvious sequential problem in terms of the impaired cause death was the fact that the complainant had parked her car across the Trans‑Canada Highway at night.
[40] In spite of this acknowledgement, Crown counsel invited the trial judge to take into account “the tragic circumstances” of the death when imposing sentence. It is not clear from the report of the Manitoba Court of Appeal decision whether the trial judge did this; however, he imposed a sentence of twelve months imprisonment.
[41] The Manitoba Court of Appeal allowed the appeal and reduced the sentence to four months. Both Twaddle J.A. for the majority and Monnin C.J.M., dissenting in part, commented on the effect of the Crown’s acceptance of the plea bargain. Twaddle J.A. stated, at p. 518:
I am of the view that only in exceptional circumstances should any offender be spared the ignominy of a prison cell where his impaired driving caused bodily harm or death. But this is not a case in which there was such a consequence. The question before us is the fitness of a sentence of 12 months imprisonment for impaired driving simpliciter.
[42] In a similar vein, Monnin C.J.M. said, at p. 511:
Crown counsel requested Corrin Prov. Ct. J. to take into account the fatality which occurred. Because of the plea which was entered, in imposing a fit sentence I am not free to take into consideration the fact a fatal accident resulted from the impaired driving. Consequently, that death cannot be taken into account.
[43] The appellant contends that Doerksen also supports its core proposition that a sentencing judge may not adopt a view of the facts that would justify a conviction for a more serious offence than the one for which an accused has been convicted.
[44] I disagree. In my view, Doerksen is similar to Brown in that something happened during the progress of the case that explicitly removed certain facts from the sentencing equation. In Brown, the jury acquittals on the more serious offences removed ‘causing death’ and ‘causing bodily harm’ as potential facts for the trial judge to consider when imposing sentence. In Doerksen, Crown counsel’s decision to drop the charge of impaired driving causing death and accept a plea of guilty to impaired driving removed ‘causing death’ as a potential aggravating factor at the sentencing stage. In short, it would be unfair to permit the Crown, having explicitly dropped the charge in which ‘causing death’ is an essential element of the offence, to resurrect the same fact for consideration at the sentencing stage of the proceedings.
[45] The present case differs from Doerksen in a crucial respect. Throughout the trial, the Crown took the position that the appellant deliberately drove his car towards and struck the victim. The jury verdict neither affirms nor denies this position. The Crown then advanced precisely the same argument at the sentence hearing. In light of ss. 718.1, 718.2, 724(2) and 724(3) of the Code, it was permitted to do so.
[46] The appellant advances an alternative argument on this issue. Doerksen is a case in which the court held that it would have been unfair to permit the Crown to advance a fact as being aggravating at the sentence hearing after taking a formal step (accepting a plea) which removed the fact from the trial. In the present case, the appellant advances an ‘unfairness’ argument. He submits that since Crown counsel told the jury in his closing address that it could find the accused guilty without concluding that he intentionally drove at and struck the victim, it was unfair for Crown counsel to submit at the sentence hearing that the accused’s driving was intentional and should be considered as an aggravating factor.
[47] In his closing jury address, Crown counsel said:
As you know, it is the Crown’s theory here that Mr. Balcha deliberately drove his car into Mr. Guaing from a motive of rage or anger after having been hit in the forehead. However, you need not be convinced of that particular theory in order to find him guilty of dangerous driving causing bodily harm. The Crown need only prove here that Mr. Balcha drove in a manner that was dangerous to the public having regard to all of the circumstances including the nature, condition and use of the place and the amount of the traffic which might reasonably be expected. Simply put, the position of the Crown is that driving a car onto a sidewalk per se without going any further easily satisfies that definition of dangerous driving. Roads are for cars. Sidewalks are for pedestrians. So whatever Mr. Balcha’s intent may have been, illogical as it was, whatever his intent may be from the high point of hell bent on revenge to ‘run over that guy who I think hit me’ to ‘I’m just going to follow these guys because I’m mad. I want to pursue them’. Whatever his intent may be his actions in driving the car in that manner easily satisfies the definition of dangerous driving.
[48] I see nothing unfair in this portion of the Crown’s jury address. He stated candidly that the Crown’s theory was that the accused deliberately drove into the victim. However, he then pointed out, correctly, that the offence of dangerous driving does not require subjective intention. On this latter point, Crown counsel was merely anticipating the correct instruction (not challenged on this appeal) that the trial judge later gave to the jury. In short, Crown counsel’s position at the sentence hearing about the intentional nature of the appellant’s driving was identical to the Crown position throughout the trial. Unlike Doerksen, it was not unfair for the Crown to advance it at the sentence hearing.
[49] Before leaving this issue, I want to make one other observation. The general proposition advanced by the appellant is that a sentencing judge may not adopt a view of the facts which would justify a conviction for a more serious offence than the one for which an accused has been convicted. I confess that, apart from the fact that such a broad proposition is inconsistent with my reading of ss. 718.1, 718.2, 724(2) and 724(3) of the Code, I have serious doubts, for practical and policy reasons, about the desirability of the proposition, including from the perspective of many accused persons.
[50] The reality is that many (probably most) of the offences in the Criminal Code have elements which overlap with other offences. Examples include: (1) first degree murder, second degree murder and manslaughter; (2) dangerous driving, dangerous driving causing bodily harm, dangerous driving causing death, impaired driving and driving with a blood alcohol level over .08; (3) assault, assault causing bodily harm, aggravated assault, assault with intent to resist arrest, assault of a peace officer, sexual assault and attempted murder; and (4) sexual assault, indecency, sexual exploitation, sexual interference, sexual touching and incest. Many other examples could be found in the Code. The fact of overlap is especially prevalent with respect to offences that cover a wide range of conduct. Dangerous driving is such an offence; it encompasses conduct with deliberately intended consequences and conduct with unintended consequences.
[51] If the appellant’s broad proposition were adopted, I am concerned that one of the potential consequences might be an undesirable restriction of the Crown’s discretion to lay an appropriate charge. In the present case, possible charges against the appellant included assault, dangerous driving, dangerous driving causing bodily harm, assault with a weapon, aggravated assault and even attempted murder. Several of these potential charges are more serious, in terms of both potential penalties and current penalty ranges, than the charge the Crown chose to lay – dangerous driving causing bodily harm. If the bright line proposition advanced by the appellant were adopted and the Crown could not propose certain facts as being aggravating at the sentence hearing because those facts might constitute an element of a more serious offence, then the Crown might be compelled to consider two other options: (1) charge the more serious offence – in the present case, probably aggravated assault; or (2) charge all of the possible offences, including attempted murder. In this case, the latter might be the more likely possibility because dangerous driving is not an included offence to aggravated assault or attempted murder.
[52] In my view, a general proposition which invites these possibilities is undesirable. The Crown should be encouraged to lay a limited number of charges, not to overcharge. As well, the Crown should be encouraged to lay an appropriate charge in light of its assessment of all the relevant circumstances. Sometimes those circumstances will suggest a charge for an offence less serious than other possibilities. Perhaps the present case is an example; although the appellant’s conduct was blameworthy, there was the important mitigating factor that he had been viciously assaulted shortly before he committed his crime.
[53] I conclude on this issue by returning to the words of the Code. Section 718.1 provides that a sentence must be proportionate to the degree of responsibility of the offender. Section 718.2 states that a sentence should be increased to account for any relevant aggravating circumstances relating to the offence or the offender. Section 724(2) requires a sentencing judge to accept all facts essential to a jury’s verdict of guilty but permits the sentencing judge to find other facts disclosed by evidence at the trial. Section 724(3) requires the prosecutor to establish any disputed aggravating facts at the sentence hearing beyond a reasonable doubt.
[54] Read together, these provisions suggest that a sentencing judge is entitled to consider all relevant factors in imposing sentence. One important factor directly related to ‘the degree of responsibility of the offender’ is the accused person’s intention in committing the criminal act. In this case, the sentencing judge was entitled to consider this factor, and label it aggravating. This is what he did.
[55] There are exceptions to this general proposition. Brown is one example, although ‘exception’ is perhaps not the right word. In my view, Brown is really an affirmation of s. 724(2)(a) of the Code which requires the sentencing judge to accept as proven all facts essential to the jury’s verdict of guilty. A jury verdict of guilty of dangerous driving, but not guilty of dangerous driving causing bodily harm and dangerous driving causing death, constitutes a rejection by the jury of the facts necessary to establish bodily harm and causing death. Doerksen is a second exception; it posits that it is unfair for the Crown to advance a fact at the sentence hearing that is specifically disclaimed in the trial process. For the reasons set out above, the present case does not come within either the Brown or Doerksen exceptions. There may well be other exceptions − for example, a proposed aggravating factor that is a clear element of a higher offence but at the perimeter of the range of conduct encompassed by the charged offence − but none is suggested on the facts of this case.
(3) Unfit sentence
[56] The appellant contends that even if the trial judge was entitled to find that he intentionally drove over the victim and treat this as an aggravating factor, the sentence imposed was too harsh. In this submission, the appellant attacks both the imposition of a custodial, as opposed to conditional, sentence and the five year duration of the driving prohibition.
[57] In support of his submission that the trial judge erred in imposing a custodial sentence, the appellant relies on three cases.
[58] In R. v. Areco (1999), 140 C.C.C. (3d) 255 (Ont. C.A.), the accused was convicted of one count of dangerous driving causing death. The trial judge imposed a custodial sentence of one year. This court allowed the appeal and converted the remainder of the sentence to one served in the community.
[59] In R. v. Parker (1997), 116 C.C.C. (3d) 236 (N.S.C.A.), the trial judge imposed a conditional sentence of two years less a day for two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm. The Nova Scotia Court of Appeal upheld this sentence.
[60] In R. v. Pawa (1998), 106 B.C.A.C. 296, the trial judge imposed a conditional sentence of four months for dangerous driving causing death. The British Columbia Court of Appeal increased the sentence to nine months but did not interfere with the community locus for serving it.
[61] In my view, there is a fundamental difference between these cases and the present appeal. In none of the cited cases did the accused intentionally drive his car at the victim or victims. They were accidents caused by a want of attention and/or skill that fell well below the standard of the reasonable driver.
[62] In this case, the appellant drove in search of three men, spotted them, drove over the curb onto the sidewalk, and struck one of the men. He then backed up the car and ran over the victim again. The victim was very seriously injured.
[63] The trial judge dealt fairly with the many mitigating factors that favoured the appellant. However, in the end, he determined that the principles of general deterrence and denunciation required a custodial sentence. I cannot say that he erred in reaching this conclusion.
[64] With respect to the five year driving prohibition, the entirety of the trial judge’s analysis is contained in the last sentence of his reasons: “Further, you, Mr. Balcha, will also be prohibited from operating a motor vehicle for a period of five years.”
[65] At the sentence hearing, the Crown offered no case law to support its submission that a five year driving prohibition should be imposed. I have reviewed a substantial number of driving prohibition cases. In very few have prohibitions of five years or longer been ordered. Those cases usually involved terrible driving and the death of a victim or victims.
[66] The appellant has worked hard to make a life for himself in Canada. He contributes generously to his community. He committed no criminal offence before this incident. He has a good job as a truck driver.
[67] In light of these circumstances, I think that a five year driving prohibition is excessive. I would reduce it to one year.
E. DISPOSITION
[68] I would dismiss the conviction appeal. I would grant leave to appeal sentence. I would dismiss the appeal with respect to the custodial portion of the sentence. I would allow the appeal with respect to the driving prohibition and impose a prohibition of one year.
RELEASED: March 26, 2004 (“JCM”)
“J. C. MacPherson J.A.”
“I agree Janet M. Simmons J.A.”
“I agree E. A. Cronk J.A.”
[^1]: At the appeal hearing, the court did not call on the respondent to make submissions on this issue.