Canadian Criminal Sentencing/Offences/Dangerous Operation of a Motor Vehicle

Legislation Dangerous operation of motor vehicles, vessels and aircraft 249. (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; (b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea; (c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or (d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated. Punishment (2) Every one who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. Dangerous operation causing bodily harm (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Dangerous operation causing death (4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. CCC General Principles The Court’s primary emphasis is placed on general deterrence.R v Fox, 2001 ABCA 64 at para. 27 R v Hindes, 2000 ABCA 197 at para. 43 When an offender has a history of improper driving, specific deterrence will be emphasized.see R. v. Squires, [1995] N.J. No. 157 (C.A.) R. v. Strickland, [1997] N.J. No. 398 (S.C.) The Dangerous Operation offences are classified as more serious than impair driving and less than criminal negligence.R v Woodward (1993) 109 Nfld & PEIR 240 (NLCA) at 30 The sentence must be proportionate to the nature of the harm inflicted. R v Rhyason, [2007] AJ No. 372 (CA) at 29 R v Christink, [2012] OJ No 989 (CA) at para 5 There must be an emphasis on denunciation and general deterrence, particularly where the consequences are devastating, in order to make clear that these are "true crimes" rather than mere accidents. R v Biancofiore, 1997 CanLII 3420 (ONCA) ("condemnation of these types of offences must be clear and, where the offence has devastating consequences, it must be loud...") In R v Grenke, [2012] AJ No 323 (QB), a number of principles have been set out: while jail sentences of less than two years exist, appeals taken from these sentences often result in the sentence being increased to a three to four year range; lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; an early plea of guilt, as a sign of remorse, is often mentioned in lower sentences but I hasten to add that an accused should not be treated more harshly, than the appropriate range of sentence, for exercising their constitutional right to a fair trial; where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher; where an offender is a youthful and less experienced driver, more emphasis may be placed on rehabilitation and less on punishment and deterrence; and where there are multiple convictions the courts should ensure that no one gets a free crime simply because one offence is eclipsed with a more serious one, but, in total and globally the sentence should not be excessive; the sentencing levers of consecutive and concurrent sentences may be used to ensure that, globally, the sentence is appropriate. 2 Causing Bodily Harm or Death Where bodily harm is involved, it is among the more serious of motor vehicle offences as it places the public, including completely innocent bystanders at risk of harm.R. v. McMertry, (1987), 21 O.A.C. 68, at para. 11 There is inherent danger in an object such as a motor vehicle moving at high speed in areas where people frequent.R. v. Field, 2011 ABCA 48, 499 A.R. 178 at para. 23 ( “[d]riving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion”) The regular range for dangerous driving or impaired driving causing bodily harm is between a conditional sentence and two years less a day.R. v. Puyenbroek, 2007 ONCA 824 at 59 to 61 2 Factors The aggravating factors to consider include:R. v. Bennett, 2007 CanLII 11290 (NL PC) citing R. v. Cooksley, [2004] 1 Cr App(S) 1 at para 15 the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”; greatly excessive speed; racing; competitive driving against another vehicle; “showing off'”; disregard of warnings from fellow passengers; a prolonged, persistent and deliberate course of very bad driving aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking); driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held); driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills; driving when knowingly deprived of adequate sleep or rest; driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns; other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle; previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving; more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable); serious injury to one or more victims, in addition to the death(s); behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape; causing death in the course of dangerous driving in an attempt to avoid detection or apprehension; offence committed while the offender was on bail; and dangerous driving while in a residential area or in area where people frequent. Potential mitigating factors include: R. v. Cooksley at para. 15 a good driving record; the absence of previous convictions; a timely plea of guilty; genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving. 2 Dangerous