Digest: R v Nahnybida, 2018 SKCA 72

• Date: August 18, 2019

Reported as: 2018 SKCA 72

Docket Number: CACR 2833|CACR 2842 , CA18071

Court: Court of Appeal

Date: 2019-08-18

Judges:

• Jackson
• Caldwell
• Schwann

Subjects:

• Criminal Law � Aggravated Refusal to Provide Breath Sample
• Criminal Law � Appeal � Conviction
• Criminal Law � Appeal � Sentencing
• Criminal Law � Dangerous Driving causing Death
• Criminal Law � Sentencing � Totality Principle � Consecutive Sentences � Concurrent Sentences

Digest: The respondent/appellant (hereinafter respondent) was the driver of a vehicle that went into the ditch. One of the three passengers died. The respondent had two trials, one for each indictment. On the second indictment, the respondent pled guilty to driving while disqualified and breach of probation. He was found guilty of aggravated refusal by judge alone, contrary to s. 255(3.2) of the Criminal Code. The trial for the first indictment occurred months later before judge and jury where the respondent was found guilty of operating a motor vehicle in a manner dangerous to the public, thereby causing death contrary to s. 249(4) of the Criminal Code. He was found not guilty of operating a motor vehicle while his ability to do so was impaired by alcohol. The respondent was sentenced to 40 months� imprisonment on the dangerous driving causing death conviction and a 40-month concurrent sentence on the aggravated refusal. He was sentenced to 6 months consecutive for the driving while disqualified with a 6-month concurrent sentence for the breach. The respondent and friends had been consuming alcohol on the day of the incident. An accident reconstruction expert testified that the truck brakes had never been applied and the truck�s minimum speed before entering the ditch was between 131 and 133 km/h. The respondent indicated that he must have fallen asleep. The second officer on the scene testified that she formed the belief that the respondent was impaired by alcohol and that he had operated a motor vehicle while impaired by alcohol within the previous three hours. The trial judge concluded that the officer�s subjective belief that the respondent had been operating a motor vehicle while impaired by alcohol within three hours prior to the breath demand was objectively reasonable. The issues on the conviction appeal were: 1) whether the jury�s finding of guilt on the dangerous driving causing death conviction was contrary to law or was an unreasonable verdict; and 2) whether the officer�s �reasonable grounds to believe� were objectively sustainable for the aggravated refusal conviction. The Crown and respondent both sought leave to appeal the sentence on the dangerous driving and aggravated refusal convictions and the respondent also sought leave to appeal the driving while disqualified sentence.
HELD: The conviction appeals were dismissed. Leave to appeal the sentences was granted; however, the appeals were both dismissed. The conviction appeals were dealt with as follows: 1) the jury was not precluded from relying on the respondent�s alcohol consumption to determine whether the driving was a marked departure from the standard of a reasonably prudent driver. The trial judge properly instructed the jury to consider the totality of the evidence, which included, but was not only the respondent�s evidence; 2) an officer is entitled to draw a reasonable inference from the totality of the circumstances. The trial judge property examined the reasonableness of the officer�s belief based on the totality of the evidence. With respect to the sentence for dangerous driving, the trial judge determined that the respondent�s alcohol consumption could not be considered as an aggravating factor because of the acquittal on the impaired driving charge. The trial judge committed an error in principle by disregarding relevant evidence about the respondent�s alcohol consumption as an aggravating factor for sentencing purposes. The appeal court concluded that the error in principle had no bearing on the sentence. The respondent argued that the trial judge erred in her assessment of his moral culpability when sentencing for the dangerous driving. He said that he simply nodded off when there was no other traffic. The trial judge did not err in that regard. The appeal court did not agree with the respondent that the trial judge...