Sentencing for criminal negligence causing death in alcohol-related circumstances

R v Smith 2013 BCCA 173 is a tragic case of death resulting from impaired driving. The trial judge gave a sentence of one day because of the circumstances and rehabilitation of the offender. The Court of Appeal imposed a much longer sentence holding: 

[34]        The fundamental principle is proportionality: the punishment must be broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (R. v. M. (C.A.) at para. 40); s. 718.1.

[35]        In 1992, this Court, with a five-justice division, took the opportunity to review the range of sentences imposed for criminal negligence causing death in alcohol-related circumstances. At that time, offences of impaired driving causing death had a maximum sentence of 14 years, and criminal negligence causing death carried a maximum sentence of life imprisonment. As noted above, impaired driving causing death now carries a maximum sentence of life imprisonment.

[36]        In a series of four cases, R. v. Sweeney 1992 CanLII 4030 (BC CA), (1992) 11 C.R. (4th) 1; R. v. Grezenda 1992 CanLII 5987 (BC CA), (1992) 11 C.R. (4th) 34; R. v. Lunn1992 CanLII 5994 (BC CA), (1992) 11 C.R. (4th) 38 and R. v. McNeil1992 CanLII 5986 (BC CA), (1992), 11 C.R. (4th) 37, the five-justice division clarified that it had not set a "starting point" sentence of five years in criminal negligence causing death cases. In a case involving a 20-year-old, significantly disadvantaged offender with no criminal record, the Court reduced a sentence of four-and-a-half years to 18 months less one day (in addition to a six-month consecutive sentence for leaving the scene of the accident). He killed another driver while involved in a police chase, and had a blood alcohol reading of 230 milligrams of alcohol in 100 milliliters of blood (Sweeney). On the other hand, the Court dismissed the appeal of an eight-year sentence for a middle-aged individual with a lengthy record of driving offences (Lunn). I refer to these cases to highlight that the range of sentence is broader than that suggested by the Crown in this case.

[37]        While the reasoning in the concurring judgment of Wood J.A. has been overtaken (Johnson at para. 20), the general range of sentence still exists. Sentencing ranges are wide, and are generally limited only by the maximum sentence available and a minimum sentence, if applicable. However, ranges are developed to give guidance to sentencing judges for the application of treating similar offenders in similar circumstances alike (s. 718.2(b)). A sentence, while falling within the general range of available sentences, may still be an unfit sentence, depending on all of the circumstances (Johnson at para. 38).

[38]        Impaired driving is a crime that potentially has tragic and devastating consequences each time it is committed. As Madam Justice Ryan stated in R. v. Johnson:

[30]      Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same time they are so easily committed by ordinary citizens. They are unlike any other crimes in the sense that nothing much can be offered to justify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can be offered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communities rightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence and denunciation are legitimate objectives to pursue for this type of offence. And it is for this reason that deterrence and denunciation ought to have been considered by the trial judge in this case.

[39]        The imposition of a fit sentence accomplishes a number of things: it holds the offender responsible for his or her actions; it demonstrates to society as a whole that this member of society cannot commit crimes without facing consequences; it acknowledges the harm done to the victim; it contributes to the protection of the public by either (a) rehabilitating the offender or (b), through incapacitation; punishing the offender; and reminds the offender that unlawful conduct has consequences.