R. v. Schinkel (T.L.), 2015 YKCA 2

• Judge: Kirkpatrick, Garson and MacKenzie, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: January 05, 2015
• Jurisdiction: Yukon
• Citations: 2015 YKCA 2;(2015), 365 B.C.A.C. 269 (YukCA)

R. v. Schinkel (T.L.) (2015), 365 B.C.A.C. 269 (YukCA);

    627 W.A.C. 269

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JA.046

Regina (appellant) v. Teri Lynn Schinkel (respondent)

(YU742; 2015 YKCA 2)

Indexed As: R. v. Schinkel (T.L.)

Yukon Court of Appeal

Kirkpatrick, Garson and MacKenzie, JJ.A.

January 5, 2015.

Summary:

The accused pleaded guilty to the following offences: count 1: impaired driving causing bodily harm (Criminal Code, s. 255(2)); count 2: dangerous driving causing bodily harm (s. 249(3)); and count 3: refusal to provide a breath sample (s. 254(5)).

The Territorial Court of Yukon imposed concurrent sentences of 60 days on each count, to be served intermittently. The sentence included a two-year probation order that bound the accused while serving her sentence intermittently, but when not confined. There were other strict terms of the probation order, which the judge described as "not specific" to the 60-day intermittent sentence, that precluded the consumption of alcohol or unprescribed controlled drugs. Also included was a 12-month driving prohibition concurrent on counts 1 and 2. A victim fine surcharge of $200 was imposed on each count. The Crown sought leave to appeal and, if granted, contended that the sentences were unfit and an appropriate sentence would be a total of six months jail with the one-year driving prohibition to apply concurrently to count 3. The Crown also argued that the judge erred by imposing concurrent sentences on all counts. The accused applied to adduce fresh evidence.

The Yukon Court of Appeal granted leave to appeal, but dismissed the appeal except to amend the driving order to make it apply concurrently on count 3. Although the sentences were below the ordinary range for these offences, they were fit for this particular aboriginal offender. It was open to the judge to impose concurrent sentences for the three offences. It was unnecessary to consider the application to adduce fresh evidence.

Criminal Law - Topic 5662.3

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Concurrent sentences - See paragraphs 35 to 37.

Criminal Law - Topic 5798

Punishments (sentence) - Prohibition orders - Respecting driving of motor vehicle - See paragraph 38.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - See paragraphs 1 to 34.

Criminal Law - Topic 5865.1

Sentence - Dangerous driving causing death or bodily harm - See paragraphs 1 to 37.

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - See paragraphs 1 to 37.

Criminal Law - Topic 5887

Sentence - Failure to provide a breath or blood sample - See paragraphs 1 to 38.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 8].

R. v. Lommerse (P.M.) (2013), 344 B.C.A.C. 38; 587 W.A.C. 38; 2013 YKCA 13, refd to. [para. 8].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 280 C.C.C.(3d) 265; 2012 SCC 13, refd to. [para. 9].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 9].

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. 16].

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. 16].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261; 112 C.C.C.(3d) 225 (C.A.), refd to. [para. 18].

R. v. Smith (T.D.) (2013), 337 B.C.A.C. 27; 576 W.A.C. 27; 2013 BCCA 173, refd to. [para. 21].

R. v. Craft (R.S.), [2006] Yukon Cases 19; 2006 YKTC 19, refd to. [para. 23].

R. v. Coldwell, 2008 YKTC 59, refd to. [para. 23].

R. v. Marshall (L.J.), [2010] Yukon Cases Uned. 81; 2010 YKTC 81, refd to. [para. 23].

R. v. Dickson (D.D.), [2013] Yukon Cases Uned. 27; 2013 YKTC 27, refd to. [para. 23].

R. v. Vallee (S.), [2012] Yukon Cases Uned. 92; 2012 YKTC 92, refd to. [para. 23].

R. v. Williams (A.D.), [2012] Yukon Cases Uned. 35; 2012 YKTC 35, refd to. [para. 23].

R. v. Tom Tom (T.), [2014] Yukon Cases Uned. 22; 2014 YKTC 22, refd to. [para. 23].

R. v. Taylor (M.A.) (2010), 262 Man.R.(2d) 43; 507 W.A.C. 43; 2010 MBCA 103, refd to. [para. 35].

R. v. Maxwell-Smith (C.J.) (2013), 342 B.C.A.C. 67; 585 W.A.C. 67; 2013 YKCA 12, refd to. [para. 36].

Counsel:

N. Sinclair, for the appellant;

K. Hawkins, for the respondent.

This appeal was heard in Vancouver, B.C., on January 5, 2015, by Kirkpatrick, Garson and MacKenzie, JJ.A., of the Yukon Court of Appeal. On the same date, MacKenzie, J.A., delivered the following oral decision for the court.