Her Majesty the Queen v. Kummer [Indexed as: R. v. Kummer]

103 O.R. (3d) 641

2011 ONCA 39

Court of Appeal for Ontario,

MacPherson, Simmons and Gillese JJ.A.

January 18, 2011

• Vous trouverez la traduction française à la p. 649, post.

Criminal law -- Drinking and driving offences -- Sentencing -- Accused driving at high speed and colliding with another vehicle in intersection after going through stop sign -- Accused's blood alcohol concentration more than twice legal limit -- Accident resulting in three deaths in particularly horrifying circumstances -- Accused's appeal from sentence of eight years' imprisonment for multiple counts of impaired driving causing death and dangerous driving causing death dismissed -- Prior decisions of Court of Appeal not capping sentences available for drinking and driving offences resulting in death at four to five years -- Accused having no criminal record but having related driving record and ignoring passenger's warning to slow down minutes before accident -- Sentence not manifestly unfit notwithstanding evidence of accused's good character.

The accused pleaded guilty to three counts each of dangerous driving causing death and impaired driving causing death, and two counts each of dangerous driving causing bodily harm and impaired driving causing bodily harm. He drove at an extreme speed with a blood alcohol concentration more than twice the legal limit, went through a stop sign and collided with a vehicle that was lawfully in the intersection. Both cars burst into flames. The father of one of two 12-year-old boys in the car hit by the accused had to be repeatedly restrained from rushing back to his car with his son and his young friend still trapped inside, and he saw it become completely engulfed in flames. The father also suffered serious physical injuries in the crash, as well as significant psychological consequences that were still evident a year after the crash. One of the accused's two passengers was also killed. The trial judge imposed eight-year concurrent sentences for each of the dangerous and impaired driving causing death offences and four- year concurrent sentences for each of the dangerous and impaired driving causing bodily harm offences, along with a 12- year driving prohibition. The accused appealed, arguing that the eight-year sentence was outside the four- to five-year range established by the Court of Appeal for drinking and driving offences resulting in death.

Held, the appeal should be dismissed.

Previous decisions of the Court of Appeal did not cap the sentences available for this kind of offence. The trial judge appropriately considered the accused's good character as a mitigating factor. However, the accused drove in an extremely reckless manner, and three young lives were lost in the most horrifying of circumstances. Although the accused had no prior criminal record, he was convicted in 2007 of careless driving and failing to report an accident. After consuming three drinks and taking allergy medication, the accused drove his car onto the runway of the airport in London. That accident caused over $100,000 damage to the airport and to his vehicle. The 2007 incident should have made the accused particularly aware of the risks of drinking and driving and the fact that [page642] he chose to drink and drive again following what should have been a "wake up call" is a significantly aggravating feature. The accused also ignored a passenger's warning to slow down minutes before the accident. The eight-year sentence was not manifestly unfit.

APPEAL by the accused from the sentence imposed by Skowronski J. of the Superior Court of Justice on April 30, 2010.

Cases referred to R. v. Junkert (2010), 103 O.R. (3d) 284, [2010] O.J. No. 3387, 2010 ONCA 549, 267 O.A.C. 7, 98 M.V.R. (5th) 14, 259 C.C.C. (3d) 14; R. v. Mascarenhas (2002), 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465, [2002] O.J. No. 2989, 162 O.A.C. 331, 29 M.V.R. (4th) 1, 58 W.C.B. (2d) 492 (C.A.); R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, 213 C.R.R. (2d) 291, 96 M.V.R. (5th) 1, 265 O.A.C. 158, 257 C.C.C. (3d) 261, 77 C.R. (6th) 134; R. v. Wood, 2005 CanLII 13779 (ON CA), [2005] O.J. No. 1611, 197 O.A.C. 43, 196 C.C.C. (3d) 155, 15 M.V.R. (5th) 37, 65 W.C.B. (2d) 221 (C.A.), consd Other cases referred to R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 93 O.A.C. 163, 110 C.C.C. (3d) 289, 1 C.R. (5th) 275, 32 W.C.B. (2d) 191 (C.A.); R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, J.E. 95-2139, 65 B.C.A.C. 37, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269, 28 W.C.B. (2d) 516 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 249(3), (4), 255(2), (3) [as am.]

Brian H. Greenspan and Seth P. Weinstein, for appellant. Joanne Stuart, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: -- A. Overview

[1] In March of 2009, the appellant, driving with a blood alcohol concentration more than twice the legal limit, caused an accident resulting in three deaths. He pled guilty to ten charges arising from this incident and was sentenced to eight years' imprisonment. He appeals from sentence. B. Facts (1) The parties and the accident

[2] On the evening of Friday, March 13, 2009, the appellant was driving his pickup truck in London, Ontario with two passengers, his friends David Marshall and Randy Psaila. The appellant had been drinking prior to driving and continued to do so while on the road. His blood alcohol level would be found to be over twice the legal limit, indicating that he had consumed [page643] the equivalent of 15 to 20 beers. The appellant was driving at an extreme speed, 122 km/h, where the posted speed limit was 70 km/h.

[3] Jason Berube was on the road at the same time. He was returning from a London Knights hockey game with his son, Mason, and family friend David Tinus, both 12 years old. They had left the game early to beat the traffic.

[4] Mr. Berube and the appellant approached the same intersection at the same time. Mr. Berube had the right of way; the appellant faced a stop sign. As Mr. Berube entered the intersection, it became clear that the appellant's vehicle was not going to stop. He slammed on the brakes. The appellant did the same. Nevertheless, the appellant's vehicle struck the passenger side of Mr. Berube's pickup truck travelling, at the time of the collision, at a speed of 83 km/h. Both vehicles came to rest in the roadside ditch. Both almost immediately caught fire.

[5] Mr. Berube, initially trapped in the front seat and now suffering from two collapsed lungs, a shattered hip, a broken femur, several cracked and broken ribs and a multitude of cuts, scrapes and bruises, eventually managed to pull himself free from the wreckage. Despite his injuries, he immediately began to try to rescue the two boys still trapped in the burning truck before being pulled from the wreckage by two civilian onlookers.

[6] In his victim impact statement, Mr. Berube remembered struggling against his rescuers as they dragged him away from the burning truck and the two boys still trapped inside. He described at one point breaking free of their grasp and attempting to return to his vehicle, only to find himself again being pulled away. Mr. Berube recalled watching the truck explode and described the vision of his 12-year-old son Mason engulfed in flames as his last memory of his son.

[7] The appellant and one of his passengers, Randy Psaila, also managed to survive the collision. His other passenger, 26- year-old David Marshall, succumbed to the fire along with Mason Berube and David Tinus. (2) The sentence

[8] The appellant pled guilty to ten charges: three counts of impaired driving causing death contrary to s. 255(3) of the Criminal Code, R.S.C. 1985, c. C-46; three counts of dangerous driving causing death contrary to s. 249(4); two counts of impaired driving causing bodily harm contrary to s. 255(2); and two counts of dangerous driving causing bodily harm contrary to s. 249(3). [page644]

[9] The sentencing hearing was marked by victim impact statements from Mr. Berube and the family and friends of the three young people killed in the collision. These statements offered some insight into the enormity of the tragedy caused by the appellant. They described how three families had been left devastated by the loss of some of their youngest members, how relatives and friends continue to struggle to come to terms with the deaths of these young people, and how a father who could not stop questioning his own role in these events continued, more than a year after the collision, to return to the intersection where he had last seen his son to reflect on what had been lost.

[10] The sentencing judge was also presented with 22 letters written in support of the appellant. These letters described the impact of these events on the Kummer family and explain that these actions were entirely out of character for the appellant, whom they described as kind, caring and generous.

[11] Balancing these competing factors was an important part of the challenge facing the sentencing judge in arriving at an appropriate sentence. In detailed reasons, he identified the "extent of the devastation" as a crucial aggravating factor, alongside the appellant's level of intoxication, the speed at which he was driving and his driving record. At the same time, he cited the appellant's "loving family and network of supportive friends" and his good character as mitigating factors, in addition to his guilty plea, his age and his lack of a criminal record.

[12] Turning to the question of proportionality as directed in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), the sentencing judge concluded that this was an extremely serious offence, that the appellant's culpability was high and that the harm resulting, as evidenced by the victim impact statements, was of the highest order. After citing the long-recognized importance of deterrence in impaired driving cases, the sentencing judge imposed eight-year concurrent sentences for each of the dangerous and impaired driving causing death offences and four-year concurrent sentences for each of the dangerous and impaired driving causing bodily harm offences, along with a 12-year driving prohibition. C. Issue

[13] The appellant submits that the sentence imposed is outside the range established by this court for these offences for first offenders and that the sentencing judge overemphasized the harm caused by the offences in arriving at an eight-year sentence. [page645] D. Analysis

[14] Sentencing decisions are entitled to considerable deference: see R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, at para. 46; and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at paras. 90-91. The justification for this deferential standard of review was recently explained by Doherty J.A. in R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970, 265 O.A.C. 158 (C.A.), at paras. 70-72:

Appellate deference to the trial judge's sentencing decision makes good sense. Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge's evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence. Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence. Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources. The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process.

A deferential standard of review on sentence appeals also recognizes that a trial judge has an advantage over the appellate court when it comes to balancing the competing interests at play in sentencing. The trial judge gains an appreciation of the relevant events and an insight into the participants in those events -- particularly the accused -- that cannot be revealed by appellate review of a transcript . . . .

Deference is justified for a third reason. The sentencing judge represents and speaks for the community that has suffered the consequences of the crime. He or she is much better placed to determine the sentence needed to adequately protect the community than is an appellate court sitting at a distant place often years removed from the relevant events.

[15] As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences of four and five years for such offences in R. v. Ramage and R. v. Junkert (2010), 103 O.R. (3d) 284, 2010 ONCA 549.

[16] In Ramage, the appellant, who had a blood alcohol concentration of between .229 and .274, drove across a busy, four-lane road into oncoming traffic. He struck one car, in which no one was hurt, and then collided with another. The appellant's passenger was killed and the driver of the other vehicle was injured. The appellant in Ramage, a first-time offender, was [page646] described by the sentencing judge as an outstanding member of the community who experienced "real and deep" remorse for his crime. He was convicted of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death, and dangerous driving causing bodily harm and sentenced to four years' imprisonment.

[17] The appellant in Junkert, while driving at least 90 km/h where the posted speed limit was 50 km/h, lost control of his vehicle and drove on to the sidewalk, where he struck and killed a jogger. At the time of the accident, the appellant's blood alcohol level was between .130 and .170. The appellant in Junkert was also a first-time offender.

[18] The sentence imposed on the appellant is higher than those levied in Ramage and Junkert. For the appellant, this difference provides the tipping point in his argument. The appellant candidly and fairly acknowledges that the sentencing judge was aware of and considered the general principles of sentencing, fully addressed the relevant aggravating and mitigating factors, and engaged in the proportionality analysis mandated by Priest. The appellant's submission, summarized crisply near the end of his oral argument, is "the number is too high . . . an eight-year sentence here is outside the four to five-year range in Ramage and Junkert".

[19] I do not accept this submission. Ramage and Junkert do not and cannot cap the sentences available for this kind of offence. This is so for three reasons.

[20] First, imposing such a cap would contradict the Criminal Code and defy the will of Parliament. The maximum sentence for the offence of impaired driving causing death is life imprisonment. It must remain within the realm of possibility that a life sentence could be imposed for this crime. Absent a determination that the maximum penalty is unconstitutional, this court is not entitled to lower the maximum penalty any more than it is entitled to raise it.

[21] Second, in Junkert itself this court cautioned against thinking formulaically about sentence ranges in drinking and driving cases involving death. As expressed by O'Connor A.C.J.O., at para. 40:

I begin by noting that courts should be cautious in rigidly applying "a range" of sentences in cases such as this, involving impaired driving causing death. In R. v. Heaslip (2001), 10 M.V.R. (4th) 220 (Ont. C.A.), in dismissing a Crown appeal from a sentence for two counts of impaired driving causing death and one court of impaired driving causing bodily harm, this court said:

In R. v. L.(J.) [(2000), 2000 CanLII 15854 (ON CA), 147 C.C.C. (3d) 299 (Ont. C.A.)], this Court also recognized that cases involving drinking and driving did not demonstrate a particular range of sentencing but rather that the sentences were driven [page647] by the almost "infinite variety of circumstances in which this offence can be committed".

[22] Third, there is precedent for the imposition of sentences more severe than those found in Ramage and Junkert in impaired driving causing death cases. In R. v. Wood, 2005 CanLII 13779 (ON CA), [2005] O.J. No. 1611, 197 O.A.C. 43 (C.A.), the appellant, who had an extensive criminal record, was sentenced to nine years' imprisonment after killing three people and injuring one while driving without a licence with a blood alcohol level nearly twice the legal limit. In R. v. Mascarenhas (2002), 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465, [2002] O.J. No. 2989 (C.A.), a nine-year sentence was substituted by this court for one of 12 years. The appellant in that case struck and killed two pedestrians while driving with a blood alcohol level between .339 and .353. The appellant had three previous impaired driving convictions, and at the time of the offence was on bail for a drinking and driving offence, had a suspended licence and was on a recognizance that prohibited him from drinking and driving.

[23] There is good reason, in this case, to move beyond the sentences imposed and affirmed on appeal in Ramage and Junkert. First and foremost, while the harm caused in each of these cases was significant, the results of the appellant's actions here were particularly catastrophic. The appellants in Ramage and Junkert each killed one person. Here, three young lives were lost in the most horrifying of circumstances. The impact of this tragedy on three families and, notably, the physical and emotional toll it has taken on Mr. Berube, must be recognized. The appellant must be held accountable for the consequences of his actions.

[24] This is not to suggest that the appellant's character and background are irrelevant, even in the face of such monumental tragedy. The appellant's good character was appropriately considered a mitigating factor by the sentencing judge. The fact that he does not have the kind of record seen in Wood or Mascarenhas distinguishes this case from those and does call for a reduced sentence.

[25] However, the appellant's circumstances are also different from those seen in Ramage and Junkert. The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked [page648] through the airport terminal and took a cab home. The incident caused $127,000 in damage to the vehicle and the airport.

[26] The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence.

[27] While, again, there are important distinctions between the appellant and the offender in R. v. Wood, the aggravating factors listed in para. 25 of Wood reveal a higher degree of similarity between the two cases than may at first be apparent:

This was a particularly serious example of criminal negligence. As indicated, the appellant's ability to drive was impaired and he had a high blood alcohol level. He ignored the advice of his friend not to drive. He drove without a licence the wrong way on a high-speed 400 series highway. He ignored the attempts of other motorists to warn him. The appellant had a serious criminal record, albeit not for driving offences, that includes prior penitentiary sentences and convictions for crimes of violence. He killed three people and caused serious and permanent injuries to another. His conduct has devastated the families of the victims and the survivor. A sentence of nine years was appropriate.

[28] Here, as in Wood, the appellant had a very high blood- alcohol level. As in Wood, he ignored the advice of his friend to slow down. While the appellant did have a valid licence, he also drove in an extremely reckless manner, reaching speeds of 52 km/h over the posted speed limit. The appellant did not have a criminal record, but he did have a highly relevant driving record which, coupled with his parents' warnings, should have left him very familiar with the risk he posed to himself and others when driving under the influence of alcohol. Finally, as in Wood, the appellant killed three people and seriously injured another, leaving three families irreparably damaged. Moreover, as I have said, in this case three young lives were lost in the most horrifying of circumstances, and the sentence imposed must hold the appellant accountable for the consequences of his actions. [page649]

[29] In the end, the sentence imposed by the sentencing judge was higher than those imposed in Ramage and Junkert but lower than the sentences in Mascarenhas and Wood. In the context of comprehensive reasons demonstrating full consideration of the general principles of sentencing, the relevant aggravating and mitigating circumstances, and the proportionality analysis, I cannot see any error in principle in those reasons. Nor is the eight-year sentence manifestly unfit. E. Disposition

[30] I would grant leave to appeal the sentence and would dismiss the appeal from sentence.

Appeal dismissed.