R. v. Kummer,

• Jurisdiction: Ontario
• Judge: MacPherson, Simmons and Gillese, JJ.A.
• Neutral Citation: 2011 ONCA 39
• Date: 14 December 2010
• Court: Court of Appeal (Ontario)

R. v. Kummer (A.L.) (2011), 273 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.026

Her Majesty the Queen (respondent) v. Andrew Larry Kummer (appellant)

(C52044; 2011 ONCA 39)

Indexed As: R. v. Kummer (A.L.)

Ontario Court of Appeal

MacPherson, Simmons and Gillese, JJ.A.

January 18, 2011.

Summary:

The accused drove through a stop sign and into an intersection and struck another vehicle. Three people were killed and others were injured. He pled guilty to ten charges: three counts of impaired driving causing death (Criminal Code, s. 255(3)), three counts of dangerous driving causing death (s. 249(4)), two counts of impaired driving causing bodily harm (s. 255(2)), and two counts of dangerous driving causing bodily harm (s. 249(3)). He was sentenced to a total of eight years' imprisonment with a 12 year driving prohibition. He sought leave to appeal the sentence.

The Ontario Court of Appeal granted leave to appeal, but dismissed the sentence appeal.

Criminal Law - Topic 5798

Punishments (sentence) - Prohibition orders - Respecting driving of motor vehicle - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations - Drinking or driving offences - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The accused drove through a stop sign and into an intersection and struck another vehicle - Both vehicles caught fire - Two 12 year old boys in the other vehicle and a passenger (age 26) in the accused's vehicle died in the accident and resultant fire/explosion - Two others were injured - The accused had been driving 122 km/h in a 70 km/h zone and was warned by a passenger to slow down - His blood-alcohol level was over twice the legal limit - The victims' families were devastated - The accused had a significant driving record - He had prior convictions in 2007 for careless driving and failing to report an accident - Alcohol was a factor - His parents had spoken to him about the dangers of impaired driving - He had a loving family and network of supportive friends - 22 letters of support describing him as kind, caring and generous - No criminal record - He pled guilty to and was sentenced to a total of eight years' imprisonment respecting ten charges (eight years concurrent for three counts of impaired driving causing death and three counts of dangerous driving causing death, and four years concurrent for two counts of impaired driving causing bodily harm and two counts of dangerous driving causing bodily harm) - He sought leave to appeal the sentence - The Ontario Court of Appeal granted leave to appeal, but dismissed the sentence appeal - The sentencing judge did not commit any error in principle - The sentence was not manifestly unfit.

Criminal Law - Topic 5865.1

Sentence - Dangerous driving causing death or bodily harm - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5886.1

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

Cases Noticed:

R. v. Priest (J.) (1996), 93 O.A.C. 163; 30 O.R.(3d) 538 (C.A.), refd to. [para. 12].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 14].

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. 14].

R. v. Ramage (R.) (2010), 265 O.A.C. 158 (C.A.), refd to. [para. 14].

R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 15].

R. v. Wood (J.) (2005), 197 O.A.C. 43 (C.A.), refd to. [para. 22].

R. v. Mascarenhas (R.) (2002), 162 O.A.C. 331; 60 O.R.(3d) 465 (C.A.), refd to. [para. 22].

Counsel:

Brian H. Greenspan and Seth P. Weinstein, for the appellant;

Joanne Stuart, for the respondent.

This appeal was heard on December 14, 2010, by MacPherson, Simmons and Gillese, JJ.A., of the Ontario Court of Appeal. The following reasons for decision of the court were delivered by MacPherson, J.A., on January 18, 2011.