R. v. Heathcliff (N.J.), 2015 YKCA 15

• Judge: Bauman, C.J.B.C., Goepel and Mahar, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 26, 2015
• Jurisdiction: Yukon
• Citations: 2015 YKCA 15;(2015), 375 B.C.A.C. 291 (YukCA)

R. v. Heathcliff (N.J.) (2015), 375 B.C.A.C. 291 (YukCA);

    644 W.A.C. 291

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. AU.001

Regina (respondent) v. Nathaniel J. Heathcliff (appellant)

(14-YU754; 2015 YKCA 15)

Indexed As: R. v. Heathcliff (N.J.)

Yukon Court of Appeal

Bauman, C.J.B.C., Goepel and Mahar, JJ.A.

August 13, 2015.

Summary:

The accused pled guilty to impaired driving causing bodily harm. The complainant had suffered lingering injuries. In addition to a five month jail term and the minimum one year driving prohibition, the court imposed a restitution order of $101,008 to ensure that the complainant (who had long term disability coverage) would be covered for her actual lost wages. The court also imposed a probation order of three years during which time the accused was prohibited from driving until at least $15,000 of the restitution order had been paid. The accused appealed from the restitution and probation orders.

The Yukon Court of Appeal allowed the appeal. The restitution order was reduced to $9,688 (the amount of the complainant's property losses). The probation order was cancelled. The accused's ability to pay the restitution order was not adequately considered. The amount ordered was crushing and would hamper, rather than assist, his rehabilitation. The only function of the probation order was to bolster the excessive restitution order. There was no need to place the accused on probation.

Criminal Law - Topic 5728

Punishments (sentence) - Probation or probation order - When required - See paragraph 12.

Criminal Law - Topic 5793

Punishments (sentence) - Restitution - Considerations (incl. conditions precedent) - See paragraphs 7 to 11.

Criminal Law - Topic 5795

Punishments (sentence) - Restitution - Quantum - See paragraphs 7 to 11.

Criminal Law - Topic 5795.1

Punishments (sentence) - Restitution - Appeals (incl. standard of review) - See paragraph 6.

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - See paragraphs 7 to 12.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - See paragraphs 7 to 12.

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 6].

R. v. Nanos (D.A.) (2013), 342 B.C.A.C. 22; 585 W.A.C. 22; 2013 BCCA 339, refd to. [para. 7].

R. v. Taylor (R.) (2003), 179 O.A.C. 285; 180 C.C.C.(3d) 495 (C.A.), refd to. [para. 8].

R. v. Siemens (K.G.) (1999), 138 Man.R.(2d) 90; 202 W.A.C. 90; 136 C.C.C.(3d) 353 (C.A.), refd to. [para. 8].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372, refd to. [para. 8].

Counsel:

L. Whyte, for the appellant;

L. Gouaillier, for the respondent.

This appeal was heard at Whitehorse, Yukon, on May 26, 2015, by Bauman, C.J.B.C., Goepel and Mahar, JJ.A., of the Yukon Court of Appeal. On August 13, 2015, Mahar, J.A., delivered the following judgment for the court at Vancouver, B.C.