Court of Appeal for Ontario

Citation: R. v. Christink, 2012 ONCA 141

Date: 2012-03-06

Docket: C52142

Before: Simmons, Armstrong JJ.A. and Then R.S.J. (ad hoc)

Between

Her Majesty The Queen Appellant

and

Isaac Steven Christink Respondent

Counsel: Gregory J. Tweney, for the appellant R. Craig Bottomley, for the respondent

Heard and released orally: February 24, 2012

On appeal from sentence imposed by Justice R. M. Thompson of the Superior Court of Justice on April 26, 2010, with reasons reported at 2010 ONSC 2396.

ENDORSEMENT

[1] The respondent was convicted of two counts of dangerous driving causing death. The circumstances of the offences involved the respondent driving a late model sports car at a speed of more than twice the legal limit at night and failing to slow down in the face of warning signs. As a result, the 32-year-old respondent was unable to negotiate a curve in the road and the car he was driving smashed into a guardrail while travelling backwards. Two of the respondent’s young friends, fellow army privates, were thrown from the rear of the respondent’s vehicle and tragically died. Immediately prior to the accident, the respondent had boasted to his friends that his vehicle could achieve a speed of 240 k.p.h.

[2] The respondent was sentenced to a conditional sentence of two years less a day on each count, to be served concurrently, and was also prohibited from driving for a period of five years.

[3] We agree with the Crown's submission that, in the particular circumstances of this case, a conditional sentence failed to satisfy the sentencing principles of proportionality, denunciation and deterrence.

[4] The circumstances of the offences indicate that, at a minimum, the respondent engaged in intentionally reckless behaviour. Further, the appellant had a prior record for driving with a blood alcohol level in excess of the legal limit as well as five prior speeding infractions. In addition, in preparation for the sentencing hearing, the respondent prepared material that patently misrepresented his hours of employment, apparently for the purpose of persuading the trial judge to give him a conditional sentence. At a minimum, this latter conduct should have militated against giving any mitigating effect to the respondent's personal circumstances. On the facts of this case, the only real mitigating factor was the respondent's sincere expression of remorse.

[5] We recognize the high degree of deference owed to a sentencing judge. However, in this case, in our view, the sentencing judge erred in principle by failing to identify what factors, if any, led him to conclude that a conditional sentence could adequately address the sentencing factors of proportionality, denunciation and deterrence. Given the intentional nature of the respondent's behaviour, the respondent's prior record, the tragic consequences of this event, and the absence of any mitigating factors apart from remorse, a conditional sentence simply is not proportionate to respondent's level of moral blameworthiness; nor is a conditional sentence adequate to address the need for denunciation and deterrence. Simply put, the conditional sentence imposed is unfit.

[6] Similarly, on the facts of this case, the five-year driving prohibition fails to adequately address the respondent's prior driving record, the need to protect the public and the need for specific deterrence.

[7] In the result, leave to appeal sentence is granted, the conditional sentence is set aside and a sentence of imprisonment is imposed equivalent to the time remaining under the conditional sentence (101 days). The driving prohibition is increased to seven years. The respondent shall surrender on or before February 29, 2012, failing which a warrant may issue.

Signed: “Janet Simmons J.A.” “Robert Armstrong J.A.” “Edward Then RSJ (ad hoc)”