R. v. Kang (M.), (2015) 465 Sask.R. 269 (CA)

• Judge: Whitmore, Lane and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 21, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 465 Sask.R. 269 (CA);2015 SKCA 98

R. v. Kang (M.) (2015), 465 Sask.R. 269 (CA);

    649 W.A.C. 269

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.031

Her Majesty the Queen (appellant) v. Maninderpal Kang (respondent)

(CACR2444; 2015 SKCA 98)

Indexed As: R. v. Kang (M.)

Saskatchewan Court of Appeal

Whitmore, Lane and Caldwell, JJ.A.

September 8, 2015.

Summary:

The accused was convicted of five offences: Count 1 - impaired driving causing death (Criminal Code, s. 255(3)); Counts 2 and 3 - impaired driving causing bodily harm (s. 255(2)); Count 4 - leaving the scene of an accident knowing that bodily harm had been caused to persons in the vehicle (s. 252(1.2)); and Count 5 - refusing a breathalyzer (s. 254(2)). The matter moved to sentencing.

The Saskatchewan Court of Queen's Bench, in a decision reported 444 Sask.R. 260, sentenced the accused as follows: Count 1 - 27 months' imprisonment; Counts 2 and 3 - 18 months on each count concurrent to each other and concurrent with the sentence for Count 1; Count 4 - three months consecutive to the other sentences; and Count 5 - a $1,000 fine. Thus the total sentence was 30 months' imprisonment. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal and held that the appropriate sentence was as follows: Count 1 (impaired driving causing death) - three years' imprisonment; Counts 2 and 3 (impaired driving causing bodily harm) - 18 months on each count concurrent to each other and concurrent with the sentence for Count 1; Count 4 (leaving accident scene) - one year's imprisonment consecutive to the sentence on Count 1; and Count 5 (breathalyzer refusal) - six months consecutive. The total sentence was, therefore, 4.5 years' imprisonment.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - The accused was convicted of impaired driving causing death, impaired driving causing bodily harm (two counts), leaving the scene of an accident, and refusing a breathalyzer - On sentencing, the judge considered the absence of evidence that the accused was grossly impaired as a mitigating factor - The Crown appealed - The Saskatchewan Court of Appeal noted that the absence of evidence of impairment was the direct consequence of the accused's refusal to provide a breath sample - The sentencing judge was in error to effectively find the accused could commit an offence (refuse to provide a breath sample) and then set up the consequences of his commission of that offence (the absence of evidence relating to a state of intoxication) as a mitigating factor - If anything, the absence of evidence as to the accused's level of impairment could be no better than a neutral factor - See paragraph 37.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - The accused was convicted of, inter alia, leaving the scene of an accident, and sentenced accordingly - The Crown appealed - The Saskatchewan Court of Appeal held that the sentencing judge erred in considering the fact that the accused did not flee far from the scene and called 911 within seven minutes of the accident as a mitigating factor - By leaving the scene of the accident, the accused committed another offence - An element of that offence, of which the accused was found guilty, was that he fled the scene with the intention of escaping criminal or civil liability - Regardless of how far he fled, the commission of another offence that necessarily included a specific intention to escape liability, could not be seen as a mitigating circumstance - See paragraphs 38 and 39.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The Saskatchewan Court of Appeal, after reviewing the relevant jurisprudence, stated that " It is clear that impaired driving causing death will rarely, if ever, attract a sentence of less than 30 months. This is an appropriate reflection of the seriousness of the offence and the primary goals of denunciation and deterrence which it attracts. A sentencing judge must therefore take care not to under-emphasize the seriousness of the offence or the principles of denunciation and deterrence" - See paragraph 59.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The accused was convicted of, inter alia, of impaired driving causing death and sentenced to 27 months' imprisonment - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal - The sentence was demonstrably unfit - The sentencing judge placed too heavy an emphasis on the accused's efforts to turn his life around after the accident - As a result, she under-emphasized the primary goals of denunciation and deterrence and also failed to impose a sentence that reflected the seriousness of the accused's actions - The appropriate sentence was three years - See paragraphs 60 to 65.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - [See first Criminal Law - Topic 5837 ].

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The accused, age 18, drove with three passengers after he consumed alcohol and smoked marijuana - Speeding - Accused hit a stopped tractor-trailer but did not stop - Rather, he drove away and stopped to call 911 about seven minutes after the collision - Refused breathalyzer - One passenger died - Two were seriously injured - No previous criminal record - Administrative driving suspensions - Had since been productive member of society - Met all conditions of release for several years - Remorseful - The Saskatchewan Court of Appeal held that the appropriate sentence was as follows: Count 1 (impaired driving causing death) - three years' imprisonment; Counts 2 and 3 (impaired driving causing bodily harm) - 18 months on each count concurrent to each other and concurrent with the sentence for Count 1; Count 4 (leaving accident scene) - one year's imprisonment consecutive to the sentence on Count 1; and Count 5 (breathalyzer refusal) - six months consecutive - The total sentence was 4.5 years' imprisonment - See paragraphs 42 to 84.

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5887

Sentence - Failure to provide a breath or blood sample - [See Criminal Law - Topic 5864.1 ].

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. 23].

R. v. Ross (K.D.) (2013), 417 Sask.R. 149; 580 W.A.C. 149; 2013 SKCA 77, refd to. [para. 42].

R. v. Alm (J.B.) (2013), 414 Sask.R. 41; 575 W.A.C. 41; 2013 SKCA 40, refd to. [para. 48].

R. v. Bear (C.C.) (2008), 320 Sask.R. 12; 444 W.A.C. 12; 2008 SKCA 172, refd to. [para. 51].

R. v. Andres (A.J.) (2002), 223 Sask.R. 121; 277 W.A.C. 121; 2002 SKCA 98, refd to. [para. 55].

R. v. Okemahwasin (B.) (2015), 462 Sask.R. 28; 79 M.V.R.(6th) 310; 2015 SKPC 71, refd to. [para. 57].

R. v. Best (T.), [2012] O.A.C. Uned. 346; 2012 ONCA 421, refd to. [para. 68].

R. v. Hughes (B.B.) (2012), 316 B.C.A.C. 226; 537 W.A.C. 226; 2012 BCCA 87, refd to. [para. 70].

R. v. Evans-Renaud (Z.) (2012), 328 Nfld. & P.E.I.R. 33; 1019 A.P.R. 33; 2012 PECA 21, refd to. [para. 71].

R. v. Cook (A.) (2013), 430 Sask.R. 118; 54 M.V.R.(6th) 96; 2013 SKPC 161, refd to. [para. 72].

R. v. Norberg, 1991 SKCA (Sent. Dig.) 70, refd to. [para. 72].

R. v. Boyenko, 1994 SKCA (Sent. Dig.) 92, refd to. [para. 72].

R. v. Yuzicapi (D.L.) (2010), 377 Sask.R. 133; 528 W.A.C. 133; 2011 SKCA 134, refd to. [para. 73].

R. v. Bear (L.E.) (1994), 120 Sask.R. 294; 68 W.A.C. 294 (C.A.), refd to. [para. 78].

R. v. McGhie (J.D.) (2014), 455 Sask.R. 310; 2014 SKQB 295, refd to. [para. 80].

R. v. Mooswa, 2011 SKCA (Sent. Dig.) 2, refd to. [para. 81].

R v Kingshott, 2009 SKCA (Sent. Dig.) 32, refd to. [para. 82].

R. v. Salikin, 2003 SKCA (Sent. Dig.) 13, refd to. [para. 83].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 252(1.2) [para. 67].

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Bob Hrycan, for the respondent.

This appeal was heard on May 21, 2015, in Regina, Saskatchewan, before Whitmore, Lane and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following decision was delivered for the court by Whitmore, J.A., on September 8, 2015.