R. v. Atkinson (B.R.), (2015) 439 N.B.R.(2d) 92 (CA)

• Judge: Richard, Bell and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 11, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 439 N.B.R.(2d) 92 (CA);2015 NBCA 48

R. v. Atkinson (B.R.) (2015), 439 N.B.R.(2d) 92 (CA);

    439 R.N.-B.(2e) 92; 1145 A.P.R. 92

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. AU.009

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AU.009

Boyd Reginald Atkinson (appellant) v. Her Majesty the Queen (respondent)

(13-14-CA; 2015 NBCA 48)

Indexed As: R. v. Atkinson (B.R.)

Répertorié: R. v. Atkinson (B.R.)

New Brunswick Court of Appeal

Richard, Bell and Green, JJ.A.

July 23, 2015.

Summary:

Résumé:

The accused pleaded guilty to charges of impaired driving causing death and impaired driving causing bodily harm, arising out of the same incident. He was sentenced on the first count to 10 years imprisonment (reduced to nine years and five months to account for time served). He was sentenced to three years concurrent on the second count. A life-long driving prohibition was also imposed. The accused applied for leave to appeal the sentence on the impaired driving causing death conviction. He claimed the sentence was clearly unreasonable and not in keeping with sentences customarily imposed for crimes of that kind. He also alleged the judge placed too much weight on the impact the crime had on the victim's family.

The New Brunswick Court of Appeal allowed the application for leave to appeal, but dismissed the appeal.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - The New Brunswick Court of Appeal stated that parity was not an imperative, but was one factor to be considered on sentencing - The court, after considering R. v. L.M. (SCC 2008), stated that "What the Supreme Court says is that the fact a sentence is not similar to other sentences in similar situations is not of itself a valid ground justifying appellate interference. A violation of the parity principle will only justify appellate interference if it meets the test enunciated for determining whether a sentence is clearly unreasonable, that is, it constitutes a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" - See paragraphs 32 to 34.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. repeat offenders) - [See first Criminal Law - Topic 5849.13 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The accused (Atkinson) applied for leave to appeal a 10 year sentence for impaired driving causing death - The New Brunswick Court of Appeal in granting leave to appeal, stated that, "... this case presents an opportunity for this Court to loudly denounce the conduct of repeat offenders who would, as did Mr. Atkinson, have callous disregard for the life of others. It is also an opportunity to confirm a sentence that not only meets the objective of denunciation but may also serve to deter those who might otherwise be inclined to engage in conduct which the Supreme Court of Canada has acknowledged '[e]ach year [...] leaves a terrible trail of death, injury, heartbreak and destruction': R. v. Bernshaw, [1995] 1 S.C.R. 254 ..." - See paragraph 2.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The New Brunswick Court of Appeal discussed sentencing in the context of impaired driving causing death offences - The court agreed 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 that offence could be committed - The court stated that "If anything, the range of appropriate sentences for impaired driving causing death is a very broad one, and remains so out of necessity in order to reflect the myriad of circumstances under which these offences can be committed. The range is defined by sentences at both ends that are not clearly unreasonable, in that they do not constitute a substantial and marked departure from those customarily imposed. Factors such as the degree of intoxication, the manner of driving and previous convictions are influential circumstances when imposing a sentence in the higher end of the range" - See paragraphs 30 to 43.

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The accused, age 42, caused an accident while impaired driving, killing a young single mother of two - He was sentenced to 10 years imprisonment - Had between 275 and 295 mgs. of alcohol in 100 mls. of his blood - Licence was suspended - Crossed centre line and collided with victim at high rate of speed - Did not brake - Four previous related convictions - The accused appealed the sentence, arguing: (1) that the sentencing judge placed too much weight on victim impact; and (2) the sentence was unreasonable having regard to the parity principle - The New Brunswick Court of Appeal dismissed the appeal - The accused's first argument had no merit - As to the second argument, the sentence was not clearly unreasonable - Parity was only one factor to be considered - The fundamental principle in s. 718.1 of the Criminal Code that the sentence be proportional to the gravity of the offence and the accused's degree of responsibility, was in no way offended by a sentence of 10 years - See paragraphs 21 to 47.

Cases Noticed:

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 2].

R. v. Steeves (T.) (2010), 360 N.B.R.(2d) 88; 930 A.P.R. 88; 2010 NBCA 57, refd to. [para. 21].

R. v. Snook (D.L.) (2015), 439 N.B.R.(2d) 10; 1145 A.P.R. 10; 2014 NBCA 71, refd to. [para. 21].

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), refd to. [para. 23].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 33].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 35].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 36].

R. v. Mascarenhas (R.) (2002), 162 O.A.C. 331; 60 O.R.(3d) 465 (C.A.), refd to. [para. 38].

R. v. Kummer (A.L.) (2011), 273 O.A.C. 378; 2011 ONCA 39, refd to. [para. 38].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C.(3d) 261; 2010 ONCA 488, refd to. [para. 41].

R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718 [para. 32].

Counsel:

Avocats:

Martin A. Goguen, for the appellant;

Stephen J. Holt, for the respondent.

This appeal was heard on February 11, 2015, before Richard, Bell and Green, JJ.A., of the New Brunswick Court of Appeal. The following decision was rendered, for the court, in English, by Richard, J.A., on July 23, 2015, with the official bilingual version released on August 27, 2015.