R. v. McDonald (D.P.), (1997) 152 Sask.R. 81 (CA)

• Judge: Vancise, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 05, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 152 Sask.R. 81 (CA);1997 CanLII 9710 (SK CA);1997 CanLII 9710 (BS SC);[1997] 4 WWR 318;113 CCC (3d) 418;5 CR (5th) 189;[1997] SJ No 117 (QL);152 Sask R 81;25 MVR (3d) 1

R. v. McDonald (D.P.) (1997), 152 Sask.R. 81 (CA);

    140 W.A.C. 81

MLB headnote and full text

Her Majesty the Queen (appellant) v. Donna Prisca McDonald (respondent)

(Appeal File No. 7005)

Indexed As: R. v. McDonald (D.P.)

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Lane, JJ.A.

March 5, 1997.

Summary:

The accused pleaded guilty to criminal negligence causing death and was sentenced to two years of probation, which included nine months of electronically monitored house arrest. The Crown appealed contend­ing that the sentence was not fit.

The Saskatchewan Court of Appeal, Van­cise, J.A., dissenting, allowed the appeal. The court set aside the sentence and imposed a sentence of six months' imprisonment, to be served in addition to the eight months already served under electronically moni­tored house arrest.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - [See Crimi­nal Law - Topic 5720.4 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When appropriate - The accused pleaded guilty to criminal negli­gence causing death and was sentenced to two years' probation, which included nine months' electronically monitored house arrest - The Crown appealed the sentence - The Saskatchewan Court of Appeal set aside the sentence and imposed a sentence of six months' imprisonment, in addition to the eight months already served under house arrest - In reaching its conclusion, the court considered the effect of recent amendments to the Criminal Code respect­ing sentencing (which came into effect after the accused was sentenced), including the use and imposition of a conditional sentence pursuant to s. 742.1.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - [See Criminal Law - Topic 5720.4 ]

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused pleaded guilty to criminal negli­gence causing death and was sentenced to two years of probation, which included nine months of electronically monitored house arrest - The Saskatchewan Court of Appeal set aside the sentence and imposed a sentence of six months' imprisonment, to be served in addition to the eight months already served under electronically moni­tored house arrest - The eight months of electronically monitored house arrest already served were counted as 12 months of imprisonment - See paragraph 140.

Criminal Law - Topic 5863.1

Sentence - Criminal negligence causing death - A fight at a party spilled out onto the street where a crowd gathered - The accused, who was very intoxicated, got into her truck and twice drove past the crowd at a high rate of speed - The third time that she drove toward the crowd, the victim was struck and killed - The ac­cused's alcohol content was 200 mg of alcohol in 100 ml of blood - Previous conviction for impaired driving - The accused pleaded guilty to criminal negli­gence causing death and was sentenced to two years' probation, which included nine months' electronically monitored house arrest - The accused was remorseful and had stopped drinking - She was the pri­mary supporter of six children and an elderly parent - The Crown appealed the sentence - The Saskatchewan Court of Appeal set aside the sentence and imposed a sentence of six months' imprisonment, in addition to the eight months already served under house arrest.

Criminal Law - Topic 6215

Sentencing - Appeals - Variation of sen­tence - Considerations - General - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120; 101 C.C.C.(3d) 124 (C.A.), refd to. [para. 5].

R. v. McLeod (R.G.) (1993), 109 Sask.R. 8; 42 W.A.C. 8; 81 C.C.C.(3d) 83 (C.A.), consd. [para. 13].

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. 19, footnote 1].

R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.), consd. [para. 29].

R. v. Finlay (1924), 43 C.C.C. 62 (Sask. C.A.), refd to. [para. 34].

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, consd. [para. 35].

R. v. O'Keefe (1968), 53 Cr. App. 91 (C.A.), consd. [para. 45].

R. v. Mark, [1975] Crim. L.R. 112 (C.A.), refd to. [para. 46].

R. v. Trowbridge, [1975] Crim. L.R. 295 (C.A.), refd to. [para. 46].

R. v. Hollinsky (1995), 46 C.R.(4th) 95 (Ont. C.A.), consd. [para. 66].

R. v. Schneider (D.P.) (1994), 123 Sask.R. 162; 74 W.A.C. 162 (C.A.), consd. [para. 68].

R. v. Wenarchuk (1982), 15 Sask.R. 240; 67 C.C.C.(2d) 169 (C.A.), refd to. [para. 70].

R. v. Ulrich (1989), 75 Sask.R. 26; 16 M.V.R.(2d) 150 (C.A.), refd to. [para. 70].

R. v. Rodrique (D.C.J.) (1995), 128 Sask.R. 154; 85 W.A.C. 154 (C.A.), refd to. [para. 73].

R. v. Pearman (1990), 89 Sask.R. 156; 26 M.V.R.(2d) 1 (C.A.), refd to. [para. 90].

R. v. Kahpeepatow (1991), 97 Sask.R. 90; 12 W.A.C. 90 (C.A.), refd to. [para. 106].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 121].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.R.R. 110, refd to. [para. 121].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261 (C.A.), refd to. [para. 122].

R. v. Van de Wiele (A.) (1997), 152 Sask.R. 65; 140 W.A.C. 65 (C.A.), consd. [para. 125].

R. v. Dunn (J.), [1995] 1 S.C.R. 226; 176 N.R. 375; 79 O.A.C. 161, refd to. [para. 143].

R. v. Arsiuta (J.) (1997), 115 Man.R.(2d) 105; 139 W.A.C. 105 (C.A.), refd to. [para. 149].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 687 [para. 18]; sect. 718.1 [para. 19 et seq.]; sect. 718.2, sect. 742.1, sect. 742.3 [para. 18 et seq.].

Authors and Works Noticed:

Archambault Report - see Canada, Sen­tencing Commission, Sentencing Reform: A Canadian Approach.

Canada, Information Canada, Studies on Sentencing (1974c), p. 4 [para. 28, foot­note 10].

Canada, Law Reform Commission, Im­prisonment and Release (1975b), Work­ing Paper No. 11, generally [para. 22, footnote 3].

Canada, Law Reform Commission, Prin­ciples of Sentencing and Dispositions (1974a), Working Paper No. 3, p. x [para. 28, footnote 10].

Canada, Report of the Canadian Commit­tee on Corrections, Towards Unity: Criminal Justice and Corrections (1969), generally [para. 26; footnote 7].

Canada, Sentencing Commission, Sentenc­ing Reform: A Canadian Approach (1987), pp. 22 [para. 22, footnote 4]; 50, 53 [para. 27, footnote 9].

Canada, Sentencing (1994), p. 32 [para. 34, footnote 13].

Canada, Standing Committee on Justice and the Solicitor General, Taking Re­sponsibility (1988), pp. 29 to 53 [para. 26, footnote 6].

Daubney Report - see Canada, Standing Committee on Justice and the Solicitor General, Taking Responsibility.

Donelson, A.C., Impaired Driving Report No. 4 Alcohol and Road Accidents in Canada: Issues Related to Future Strat­egies and Priorities (1985), generally [para. 88, footnote 25].

Donelson, A.C., The Alcohol Crash Prob­lem and its Persistence: The Need to Deal Effectively with the Hard Core of Drinking Drivers (1989), generally [para. 88, footnote 25].

Doob, Anthony, Community sanctions and imprisonment: Hoping for a miracle but not bothering even to pray for it (1990), 32 Can. J. Crim 415, pp. 424, 425 [para. 37, footnote 15].

Hay, Douglas et al. Albions Fatal Tree, Crime and Society in Eighteenth Century England, generally [para. 22, footnote 4].

Hay, Douglas, Property, Authority and Criminal Law, p. 17 et seq. [para. 22, footnote 4].

Manson, Finding a Place for Conditional Sentences (1997), 3 C.R.(5th), generally [para. 65, footnote 21].

Ouimet Report - see Canada, Report of the Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections.

Quigley, Tim, New Horizons in Sentenc­ing? (1996), 1 Can. Crim. L.R. 277, p. 290 [para. 37, footnote 15].

Roberts and von Hirsch, Statutory Sen­tencing Reform: The Purpose and Prin­ciples (1995), 37 Crim. L.Q. 220, p. 229 [para. 147].

Counsel:

D. Rayner, for the Crown;

A. Logue, for the respondent.

This appeal was heard on October 10, 1996, before Vancise, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal.

On March 5, 1997, the judgment of the court was rendered and the following opin­ions were filed:

Vancise, J.A., dissenting - see paragraphs 1 to 102;

Sherstobitoff, J.A. - see paragraphs 103 to 140;

Lane, J.A. - see paragraphs 141 to 153.