Court of Appeal for Ontario

Citation: R. v. Purtill, 2013 ONCA 692

Date: 2013-11-13

Docket: C57032

Before: Weiler, Watt and Pepall JJ.A.

Between:

Her Majesty the Queen Respondent

and

Bonita Purtill Applicant/Appellant

Counsel:

Robert Sheppard, for the appellant

Riun Shandler, for the respondent

Heard and released orally: November 5, 2013

On appeal from the sentence imposed on September 19, 2012 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant seeks leave to appeal her sentence of six years for criminal negligence causing death and bodily harm and impaired driving causing death and bodily harm and one year consecutive for refusal to provide a breath sample. She has abandoned her inmate appeal against conviction.

[2] On the sentence appeal, the appellant submits that the overall sentence is excessive and beyond the upper limit of the appropriate range. Moreover, the appellant contends, the trial judge erred in failing to articulate why the upper range of five years submitted by the defence was inadequate. Finally, the appellant says that the sentencing judge failed to consider the principle of totality.

[3] We do not agree with these submissions.

[4] There is no fixed term upper limit for criminal negligence causing death or impaired driving causing death. The facts of the case must govern. Furthermore, the latter offence has attracted a sentence in the eight year range. See R. v. Kummer 2011 ONCA 39, [2011] O.J. No. 234 (Ont. C.A.) which involved a first time offender who pled guilty. In this appeal, a five-month-old baby was killed and his mother’s back broken as a result of the appellant’s offences. While the appellant showed remorse, she had a prior, albeit dated, criminal record for impaired driving. Furthermore, there was no error in the sentencing judge’s imposition of a consecutive sentence for the offence of refusal to provide a breath sample. Counsel acknowledges that a consecutive sentence for this offence was appropriate. The seven year sentence was not unduly long or harsh in the circumstances and we are satisfied that the sentence does not offend the totality principle.

[5] The sentencing judge’s decision is entitled to deference and the sentence is fit.

[6] Leave to appeal sentence is granted but the appeal is dismissed.

“K.M. Weiler J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”