R. v. Carver (K.B.), 2013 ABPC 189

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 17, 2013
• Citations: 2013 ABPC 189;(2013), 565 A.R. 255 (PC)

R. v. Carver (K.B.) (2013), 565 A.R. 255 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.111

Her Majesty the Queen (Crown) v. Kyle Brian Carver (No.3) (offender)

(120374376P1; 2013 ABPC 189)

Indexed As: R. v. Carver (K.B.)

Alberta Provincial Court

Rosborough, P.C.J.

July 17, 2013.

Summary:

The accused was found guilty of driving with a blood-alcohol content over the legal limit and causing bodily harm, contrary to s. 255(2.1) of the Criminal Code (see (2013), 558 A.R. 50).

The Alberta Provincial Court sentenced the accused to 10 months' imprisonment, to be followed by two years' probation. The court also imposed a three year driving prohibition, an order authorizing the taking of samples for DNA analysis, and a victim surcharge fee.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - While his blood-alcohol content was twice the legal limit, Carver drove his vehicle through an intersection and struck a pedestrian who was in the crosswalk - He continued driving to the next intersection, where a witness informed him that he had struck someone - Carver turned the wrong way down a one-way street and proceeded to his residence - The pedestrian sustained serious injuries - Carver was convicted of driving with a blood-alcohol content over the legal limit and causing bodily harm (Criminal Code, s. 255(2.1)) - The pre-sentence report indicated that he had accepted full responsibility for drinking and driving - However, he did not believe that his ability to drive was impaired on the day in question - The Alberta Provincial Court held that a conditional sentence was not available on the facts of this case - The s. 255(2.1) offence was a serious personal injury defence, as Carver's behaviour constituted "conduct endangering or likely to endanger the life or safety of another person" (s. 742.1) - Even if s. 742.1 did not apply, a conditional sentence was not appropriate because (1) denunciation and deterrence would not be adequately served by permitting Carver to serve his sentence in the community, and (2) it would endanger the safety of the community - Carver's inability to accept the grave dangers posed by the amount of alcohol he had consumed created a danger that he would once again be prepared to drink and drive - See paragraphs 25 to 42.

Criminal Law - Topic 5886.1

Sentencing - Sentence - Particular offences - Impaired driving causing bodily harm - While his blood-alcohol content was twice the legal limit, Carver drove his vehicle through an intersection and struck a pedestrian who was in the crosswalk - He continued driving to the next intersection, where a witness informed him that he had struck someone - Carver turned the wrong way down a one-way street and proceeded to his residence - The pedestrian sustained a closed head injury, factures to her nose and a broken femur - She continued to experience headaches, anxiety and depression - Carver was convicted of driving with a blood-alcohol content over the legal limit and causing bodily harm (Criminal Code, s. 255(2.1)) - Carver was 19 years old and of previous good character - He was a good employee, had the support of his family and had expressed some remorse - The Alberta Provincial Court sentenced Carver to 10 months' imprisonment, followed by two years' probation - Aggravating factors included Carver's blood-alcohol concentration, the fact that his ability to drive was impaired by alcohol, his aberrant driving pattern, the fact that he fled the scene without contacting the police or emergency health authorities, and the extent of the pedestrian's injuries - See paragraphs 43 to 68.

Cases Noticed:

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 27].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 27].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 ONCA 220, refd to. [para. 28].

R. v. Goulet (T.L.) (2011), 510 A.R. 315; 527 W.A.C. 315; 2011 ABCA 230, refd to. [para. 29].

R. v. Irwin (L.D.), [2008] A.R. Uned. 519; 2008 ABPC 83, refd to. [para. 31].

R. v. Kannokko (D.H.), [2009] A.R. Uned. 517; 2009 ABPC 199, refd to. [para. 31].

R. v. Startup (D.J.) (2011), 528 A.R. 329; 2011 ABPC 389, refd to. [para. 32].

R. v. Gosse (S.C.), [2009] A.R. Uned. 694; 2009 ABPC 302, refd to. [para. 33].

R. v. Hill, [2010] O.J. No. 3612 (C.J.), refd to. [para. 34].

R. v. Leitch, [2010] O.J. No. 6240 (C.J.), refd to. [para. 34].

R. v. Voerman, [2012] B.C.J. No. 921 (Prov. Ct.), refd to. [para. 34].

R. v. Swanson, [2013] O.J. No. 2627 (Sup. Ct.), refd to. [para. 34].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 40].

R. v. Rhyason (B.P.) (2007), 404 A.R. 191; 394 W.A.C. 191; 2007 ABCA 119, refd to. [para. 44].

R. v. Stimson (K.A.) (2011), 499 A.R. 185; 514 W.A.C. 185; 2011 ABCA 59, refd to. [para. 44].

R. v. Hogg (P.E.) (2009), 470 A.R. 269; 2009 ABPC 230, refd to. [para. 46].

R. v. Jacobs (1982), 39 A.R. 391 (C.A.), refd to. [para. 51].

R. v. Horon (1990), 107 A.R. 328; 24 M.V.R.(2d) 223 (C.A.), refd to. [para. 53].

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. 54].

R. v. Duff (R.A.) (2010), 501 A.R. 122; 2010 ABPC 319, refd to. [para. 54].

R. v. Burback (B.T.) (2012), 522 A.R. 352; 544 W.A.C. 352; 2012 ABCA 30, refd to. [para. 63].

R. v. Alm (J.B.) (2013), 414 Sask.R. 41; 575 W.A.C. 41; 2013 SKCA 40, refd to. [para. 63].

R. v. Carr (J.J.) (2008), 441 A.R. 360; 2008 ABQB 228, refd to. [para. 63].

R. v. Vijay (D.) (2002), 324 A.R. 320; 2002 ABQB 825, refd to. [para. 63].

R. v. Veitch (B.J.) (2008), 438 A.R. 15; 2008 ABPC 4, refd to. [para. 63].

R. v. Berry (E.C.) (2007), 435 A.R. 254; 2007 ABPC 93, refd to. [para. 63].

R. v. Moller (M.H.) (2012), 539 A.R. 300; 561 W.A.C. 300; 2012 ABCA 381, refd to. [para. 65].

Authors and Works Noticed:

Canada, Statistics Canada, Juristat - Impaired Driving in Canada (2011), generally [para. 55].

Counsel:

M. Collard, for the Crown;

P. Northcott, for the accused.

This matter was heard at Red Deer, Alberta, on July 17, 2013, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for sentence on the same date.