Case: R v York, 2015 ABCA 129

Keywords: impaired driving causing death, increased sentencing ranges

Synopsis: The Appellant was driving drunk. His blood alcohol content was three times the legal limit. He veered into the oncoming lane and collided with a motorcycle. The crash proved fatal to the motorcyclist. The Appellant, however, literally walked away from the scene.

At trial he was convicted of impaired driving causing death and was sentenced to six years in jail and a ten-year driving ban. This was at the high end of what the Crown was seeking. The sentencing judge found several aggravating factors including the fact the appellant had two prior convictions for impaired driving (1997, 2000) and two convictions for driving while disqualified (1994, 1995). The mitigating factors were a timely guilty plea, no alcohol consumption post-accident and genuine remorse.

The appellant appeals on the basis the sentence is unduly harsh and inconsistent with sentences in similar cases and on the basis the judge overemphasized his prior record. The majority of the Court of Appeal disagreed and dismissed the appeal. Berger J.A. dissenting would have allowed the appeal and substituted a sentence of 5 years imprisonment.

Importance: This decision by the Alta. C.A. was released this week before the Supreme Court of Canada mandatory minimums decision in R. v. Nur, 2015 SCC 15. While the two cases dealt with different offences, they are interesting to compare. In Nur the SCC found the mandatory minimum sentences for firearm offences potentially grossly disproportionate and struck down the offending provisions. In contrast, the present appeal decision provides an example of Parliament increasing sentences and the Court being responsive to those legislative changes.

The majority of the C.A. confirms that decisions as recent as 2010 need no longer be closely followed as guides for sentencing ranges where sentences have increased as a result of legislative changes. It was open to the sentencing judge to refer to the appellant’s prior convictions. Stating that the appellant had failed to tackle his problem with drinking and driving despite previous offences did not amount to “undo emphasis” on prior convictions.

Berger J.A. in dissent emphasized the importance of individual sentencing and the principle of restraint. He cautioned against handing down six year sentences in every impaired driving case where death results and the offender has prior convictions. The majority responded to this argument by pointing to the importance of the principle of proportionality. A proportionate sentence will take into account the offender’s degree of responsibility and gravity of the offence while also encompassing the concept of restraint.

The majority C.A. concluded as follows:

[13] The sentencing judge took all the relevant factors into account and imposed a proportional sentence. Sentences for impaired driving causing death have increased in recent years, commensurate with legislative changes and society’s need to deter and denunciate the senseless loss of life on Canadian roads. In cases where the offender has a prior related record and/or high blood alcohol levels, proportionality demands a higher sentence. In this case, both circumstances exist. The sentence is not demonstrably unfit, nor is there any reversible error warranting our intervention.

Counsel for the Appellant: Alain Hepner, Q.C. (Ross Hepner, Calgary)

Counsel for the Respondent: Josh Hawkes, Q.C.  (Justice and Solicitor General (AB), Calgary)

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