R. v. Ruizfuentes (H.S.),

• Jurisdiction: Manitoba
• Judge: Monnin, Chartier and MacInnes, JJ.A.
• Neutral Citation: 2010 MBCA 90
• Citation: 2010 MBCA 90,(2010), 258 Man.R.(2d) 220 (CA),262 CCC (3d) 540,[2010] CarswellMan 583,[2010] MJ No 310 (QL),258 Man R (2d) 220,(2010), 258 ManR(2d) 220 (CA),258 Man.R.(2d) 220,[2010] M.J. No 310 (QL),258 ManR(2d) 220
• Date: 14 October 2010
• Court: Court of Appeal (Manitoba)

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220 (CA);

      499 W.A.C. 220

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. OC.027

Her Majesty The Queen (respondent) v. Hugo Sergio Ruizfuentes (accused/appellant)

(AR 09-30-07243; 2010 MBCA 90)

Indexed As: R. v. Ruizfuentes (H.S.)

Manitoba Court of Appeal

Monnin, Chartier and MacInnes, JJ.A.

October 14, 2010.

Summary:

Ruizfuentes pled guilty to one count of impaired driving causing death (s. 255(3) of the Criminal Code). He was sentenced to six years' imprisonment and given a 15-year driving prohibition. He appealed on the ground that the sentence was unfit because the sentencing judge overemphasized his prior driving record under the Highway Traffic Act, and failed to give sufficient weight to the mitigating factors.

The Manitoba Court of Appeal allowed the appeal by varying the term of imprisonment, prior to any pre-sentence custody credit, from six to four and one-half years, and by varying the driving prohibition from 15 to seven and one-half years.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See fourth Criminal Law - Topic 5849.13 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - The Manitoba Court of Appeal stated that, in cases of impaired driving causing death, "the paramount objectives of sentencing are denunciation and deterrence. The punishment must express society's condemnation of the accused's ways and serve to dissuade others from engaging in similar conduct. In such cases, an accused is 'punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity'" - See paragraph 33.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - The accused was sentenced to six years' imprisonment and given a 15-year driving prohibition on one count of impaired driving causing death - The sentencing judge stated in her reasons that "The aggravating factors in this case are numerous. At 41 years of age, the accused is not a youthful offender" - On appeal, the accused argued that the sentencing judge erred in principle by treating his age to be an aggravating factor - The Manitoba Court of Appeal held that the sentencing judge erred in principle - "While youth can be a mitigating factor, the opposite does not hold true. The fact that someone is no longer a youthful offender is not an aggravating factor. If an accused is neither young, nor old, age is generally a neutral factor" - Although the sentencing judge did err on this point, it did not, on its own, reach the level of reversible error - See paragraphs 23 and 24.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5848.8 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations - First offence - The accused was sentenced to six years' imprisonment and given a 15-year driving prohibition on one count of impaired driving causing death, contrary to s. 255(3) of the Criminal Code - He had a dated, minor and unrelated criminal record for not respecting the conditions of a discharge order - However, his driving abstract under the Highway Traffic Act listed 13 infractions over a 15-year period - The sentencing judge stated that the accused was "anything but a first offender" as a result of his prior driving record - The Manitoba Court of Appeal held that the sentencing judge erred in principle - The sentencing judge should have given very little weight, if any, to his prior criminal record - More importantly, because the accused had no prior drinking and driving convictions, he was not "anything but a first offender", for the purposes of sentencing under s. 255 of the Criminal Code - The error led to the imposition of a sentence usually reserved for second offenders and it was demonstrably unfit - As a result, appellate intervention was justified - See paragraphs 25 to 30.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The Manitoba Court of Appeal discussed the two amendments to the punishment sections of the Criminal Code for drinking and driving offences that impacted directly on the impaired driving causing death offence - First, the amendment to s. 742.1 (that came into force on December 1, 2007) precluded the imposition of a conditional sentence for a person convicted of a "serious personal injury offence" - Second, on October 1, 2008, the minimum sentence, along with the other drinking and driving offences, was increased - "As a result of these amendments, Parliament has in effect reduced the breadth of sentencing options available for judges by taking away a type of sentence that was often used for first offenders (the conditional sentence) and by raising the minimum sentence plateau" - See paragraph 11.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - Parliament had recently amended the punishment sections for drinking and driving offences - Two amendments impacted directly on the impaired driving causing death offence - The Manitoba Court of Appeal concluded that, as a result of the recent amendments and the review of the case law (from the province's trial courts, together with Canadian appellate decisions, over the last seven or eight years) "that the regular range of sentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking and driving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years. As for driving prohibitions, the cases show that for first offenders, the range is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban" - See paragraphs 13 to 22.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The accused was sentenced to six years' imprisonment and given a 15-year driving prohibition on one count of impaired driving causing death - The sentencing judge's reasons showed that she decided to treat the accused as "anything but a first offender" because of his Highway Traffic Act (HTA) record - The Manitoba Court of Appeal stated that "A prior HTA record, although a relevant and important consideration in an impaired driving causing death sentencing hearing, cannot be elevated in significance to the level of a criminal record. There is an important distinction to be made between a regulatory offence, such as the HTA, and a criminal offence. They embody different concepts of fault and therefore moral blameworthiness" - See paragraph 29.

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - The Manitoba Court of Appeal stated that the appropriate range of sentences for impaired driving causing death was two to five years - To determine where an accused should be within that general range, "the sentencing judge will determine which sentencing objectives (s. 718 of the Code) deserve the greatest weight given the circumstances of the case. The judge will also consider any relevant mitigating or aggravating circumstances. These factors will cause the judge to decrease or increase the sentence along the appropriate range for similar crimes (see s. 718.2(a)). Lastly, the sentencing judge will take a last look at the prospective sentence to ensure that it respects the overarching principle of sentencing: proportionality (see s. 718.1, and R. v. Nasogaluak, 2010 SCC 6 ... 'whatever weight a judge may wish to accord to the [sentencing] objectives ..., the resulting sentence must respect the fundamental principle of proportionality' ... This is so because the proportionality principle acquired a constitutional dimension as a result of the protection against grossly disproportionate sentences under s. 12 of the Canadian Charter of Rights and Freedoms" - See paragraph 31.

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The accused was speeding, tailgating and driving through intersections against red lights - When he drove through his third red light, his vehicle hit another vehicle, killing the driver - He was sentenced to six years' imprisonment and given a 15-year driving prohibition on one count of impaired driving causing death - He appealed - The Manitoba Court of Appeal held that the sentencing judge erred by treating the accused as "anything but a first offender" because of his driving record under the Highway Traffic Act - The court reduced the sentence to four and one-half years' imprisonment and prohibited the accused from driving for a period of seven and one-half years - The aggravating circumstances outweighed the mitigating factors "simply because of the sheer dangerousness of the accused's actions" - A significant aggravating circumstance was the accused's lengthy and related prior driving record - As a result, the sentence was on the higher end of the two-to-five-year range - The sentence was in line with the accused's moral culpability (proportionality): he had a long history of not respecting traffic control devices - "On the spectrum of moral blameworthiness for impaired driving causing death, the accused clearly registers at the high end" - See paragraphs 34 to 40.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Manitoba Court of Appeal affirmed that an appellate court must show "great deference" when reviewing a sentencing decision - "Upon the granting of leave, an appellate court can only interfere with a sentence in two circumstances: when the sentence is 'demonstrably unfit', 'demonstrably inadequate or excessive', or 'clearly unreasonable', or when it has been arrived at as a result of an error in principle. An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. ...  'Unreasonableness' or 'demonstrably unfit' in the sentencing context refers to an order falling outside the 'acceptable range' of sentences under similar circumstances" - See paragraph 7.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5864.1 ].

Cases Noticed:

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 7].

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. 7].

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. 7].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 7].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 7].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 7].

R. v. Homer (L.) (2003), 179 B.C.A.C. 195; 295 W.A.C. 195; 2003 BCCA 15, refd to. [para. 17, Appendix].

R. v. Dalkeith-Mackie (J.D.) (2003), 180 Man.R.(2d) 175; 310 W.A.C. 175; 2003 MBCA 144, refd to. [para. 17, Appendix].

R. v. Munro, [2005] O.J. No. 3431 (C.A.), refd to. [para. 17, Appendix].

R. v. Howe (P.L.) (2007), 330 N.B.R.(2d) 204; 845 A.P.R. 204; 2007 NBCA 84, refd to. [para. 17, Appendix].

R. v. Lachappelle (C.) (2007), 229 O.A.C. 206; 226 C.C.C.(3d) 518; 2007 ONCA 655, refd to. [para. 17, Appendix].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 2010 ONCA 488, refd to. [para. 17, Appendix].

R. v. Regnier (R.H.) (2002), 219 Sask.R. 316; 272 W.A.C. 316; 2002 SKCA 82, refd to. [para. 18, Appendix].

R. v. Hall (S.) (2007), 219 O.A.C. 251; 83 O.R.(3d) 641 (C.A.), refd to. [para. 18, Appendix].

R. v. Bear (C.C.) (2008), 320 Sask.R. 12; 444 W.A.C. 12; 2008 SKCA 172, refd to. [para. 18, Appendix].

R. v. Richard (A.L.) (2009), 241 Man.R.(2d) 298; 2009 MBQB 181, refd to. [para. 18, Appendix].

R. v. Morneau (A.), 2009 QCCA 1496, leave to appeal refused (2010), 404 N.R. 393 (S.C.C.), refd to. [para. 18, Appendix].

R. v. Niganobe (J.), [2010] O.A.C. Uned. 328; 95 M.V.R.(5th) 175; 2010 ONCA 508, refd to. [para. 18, Appendix].

R. v. McIllwrick (J.R.) (2008), 461 A.R. 16; 2008 ABQB 724, refd to. [para. 19].

R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 20, Appendix].

R. v. Shave (2005), 25 M.V.R.(5th) 285 (Man. Prov. Ct.), refd to. [para. 21, Appendix].

R. v. Bone, [2005] M.J. No. 75 (Q.B.), refd to. [para. 21, Appendix].

R. v. Capuska (K.) (2005), 194 Man.R.(2d) 113 (Prov. Ct.), refd to. [para. 21, Appendix].

R. v. Spence, [2006] M.J. No. 238 (Prov. Ct.), refd to. [para. 21, Appendix].

R. v. Gallant (J.A.) (2008), 272 Nfld. & P.E.I.R. 338; 830 A.P.R. 338; 2008 PESCAD 1, refd to. [para. 21, Appendix].

R. v. McCowan (K.J.) (2010), 251 Man.R.(2d) 295; 478 W.A.C. 295; 2010 MBCA 45, refd to. [para. 22].

R. v. G.M. (1992), 58 O.A.C. 390 (C.A.), refd to. [para. 24].

R. v. Ceraldi, [1990] B.C.J. No. 2741 (C.A.), refd to. [para. 27].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 29].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 31].

Ward v. Vancouver (City) et al. (2010), 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 33].

R. v. Eckert (J.J.) (2006), 201 Man.R.(2d) 175; 366 W.A.C. 175; 2006 MBCA 6, refd to. [para. 37].

R. v. Kaserbauer (P.) (2003), 171 Man.R.(2d) 230; 2003 MBQB 28, refd to. [Appendix].

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

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), p. 251 [para. 24].

Counsel:

M.P. Cook, for the appellant;

C.A. Vanderhooft, for the respondent.

This sentencing appeal was heard before Monnin, Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. In reasons written by Chartier, J.A., the Court of Appeal delivered the following judgment, dated October 14, 2010.