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

112 O.R. (3d) 626

2012 ONCA 743

Court of Appeal for Ontario,

Goudge, Rouleau and Watt JJ.A.

November 5, 2012

Criminal law -- Drinking and driving -- Sentencing -- Accused pleading guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified and breach of no consumption undertaking -- Extremely intoxicated accused driving dangerously over extended period while drinking and consuming drugs ending by driving off road and landing car upside down in stream -- Instead of attempting to rescue trapped passenger, accused trying to pressure other passengers into lying to police -- Unlicenced accused having eight prior convictions for driving while disqualified and on bail for impaired driving -- Crown seeking sentence of ten years' imprisonment -- Trial judge imposing sentence of 12 years' imprisonment -- Accused's conduct before and after crash egregious and sentence not unfit. [page627]

The accused pleaded guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified and breach of an undertaking requiring him to abstain from consuming alcohol. He engaged in extremely dangerous driving over a period of about an hour while drinking and consuming Percocet. He drove off the road and his vehicle landed upside down in a stream. He left a passenger in the vehicle to die and tried to pressure other passengers to agree on a lie to tell the police before anyone sought assistance for the unconscious passenger. His blood alcohol concentration was very high, he was on bail on a charge of impaired driving, he did not have a licence and he had eight prior convictions for driving while disqualified, the last of which was registered ten days before this offence. The Crown sought a global sentence of ten years' imprisonment. The trial judge imposed a global sentence of 12 years. The accused appealed.

Held, the appeal should be dismissed.

The Crown acknowledged that this was the highest sentence ever approved by the Court of Appeal for Ontario for drinking and driving offences, but argued that the sentence imposed was fit. A trial judge's sentencing decision should attract considerable deference. The accused's conduct was egregious. It would have been preferable for the trial judge to indicate that he was considering a sentence above that proposed by the Crown. The accused's outrageous driving conduct endangered the community and his attempt to escape responsibility after the crash by lying to the police while leaving the passenger to die was callous and troubling. The sentence imposed was not unfit.

APPEAL by the accused from the sentence imposed by Donohue J., [2010] O.J. No. 6265 (S.C.J.).

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. 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

Gord Cudmore, for appellant. Matthew Asma, for respondent.

[1] BY THE COURT: -- On the afternoon of June 21, 2009, the appellant, with three friends in his car, set off on a drunken high-speed "crop tour" of rural Lambton County. For more than an hour, this reckless escapade continued, with the appellant reaching speeds of 170 km/h on back roads, repeatedly endangering pedestrians and other drivers, while he and his passengers continued to drink and consume Percocet pills. At one point, he sped off at over 110 km/h, with one of his passengers, Roland Bruno, clinging to the hood of the car, so called "hood surfing". After running the car into a ditch, the appellant managed to get it back on the road and, despite his passengers' request that he slow down, continued his outrageous driving.

[2] It all ended tragically when the appellant drove off the road and his car landed upside down in a stream. The appellant [page628] promptly exited, leaving his passengers behind. When he returned several minutes later, Mr. Bruno, who had passed out from alcohol consumption, was still in the car with his head underwater. A second passenger was trapped in the back seat of the car with his head in an air pocket. The appellant tried to pressure the others into agreeing to a fabricated version of events to tell police and refused to do anything to help those still in the car until they all agreed on what story to tell the police. The appellant also proceeded to try to dispose of alcohol and drugs that had been in his car.

[3] One of the passengers finally decided to go for help. More than 20 minutes after the crash, when the police arrived, the appellant denied being the driver or knowing any of the passengers. Mr. Bruno was finally pulled from the car by a passerby, but by that time he was dead.

[4] The appellant's blood alcohol concentration at the time of the accident was between 273 and 371 mg/100 mL. He was on bail from an earlier charge of impaired driving. He had not had a licence to drive since 1985 and only ten days earlier had been convicted of driving while suspended, his eighth conviction for that offence.

[5] The appellant pleaded guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified and breach of an undertaking to abstain from consumption of alcohol. The trial judge imposed a global sentence of 12 years in prison. After a credit of two years for pre-trial custody, he was left with ten years to serve.

[6] The appellant appeals his sentence. His argument is that it is outside the range of sentences imposed for this offence and hence unfit. At trial, the Crown sought a global sentence of ten years. In this court, the Crown supported the sentence imposed, but fairly acknowledged that it is higher than any sentence previously approved by this court for fatal drinking and driving offences.

[7] After argument, the court announced that the appeal was dismissed with reasons to follow explaining why. These are those reasons.

[8] We begin by reiterating what this court said in R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488. Appellate deference to a trial judge's sentencing decision is an appropriate reflection of the trial judge's uniquely placed position in balancing the various interests at play in the fact-based act of judicial discretion that sentencing is. The sentencing judge represents and speaks for the community that suffers the consequences of the crime in a way this court does not. He or she must choose [page629] from the range of reasonable options, a sentence that best fits the offender and the offence, and if this is done, there would be little point in this court repeating the exercise. For these reasons, the sentence chosen attracts deference in this court.

[9] Second, we reaffirm what this court said in R. v. Junkert (2010), 103 O.R. (3d) 284, [2010] O.J. No. 3387, 2010 ONCA 549, at paras. 40-41:

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 count of impaired driving causing bodily harm, this court said:

In R v. L. (J.) [(2000), 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 by the almost "infinite variety of circumstances in which this offence can be committed".

Clearly, sentences imposed by courts in earlier decisions provide guidance as to an appropriate sentence. However, appellate interference may only be justified if the sentence imposed at trial is demonstrably unfit.

[10] Finally, we return to the facts of this case that make the appellant's conduct so egregious. As outlined above, his conduct leading up to the crash was, as appropriately described by the trial judge, "outrageous". It endangered the community. It was fuelled by excessive overconsumption of drugs and alcohol. His conduct after the crash was equally troubling and callous in attempting to plot a fabricated story for police and in leaving Mr. Bruno to die. His driving history confirms a pattern into which these tragic events seem all too easily to fit.

[11] Although it would have been preferable for the trial judge to indicate to counsel he was considering a sentence above that proposed by the Crown before he did so, these facts demonstrate why society's concern about drunk and reckless driving causing death continues to grow. In all the circumstances, while the sentence was undoubtedly high, we cannot find it unfit.

[12] The appeal is therefore dismissed.

Appeal dismissed.