Tuesday, September 27, 2016


The Alberta COurt of APpeal unanimously rejected the argument that the sentence of a convicted driver who killed the driver of another car.  The appellant  was in Canada illegally after his  Study Permit had long expired, and he argued that his sentence should be reduced based in part on the potential immigration consequences that he would face. The court correctly held that, since the driver was already illegally in Canada after his Study Permit expired,  the matter had little relevance.

R. v. Mbachu

Her Majesty the Queen, Respondent, and
Eze Mbachu, Appellant
[2016] A.J. No. 945
2016 ABCA 270

Docket: 1501-0147-A

Registry: Calgary

 Alberta Court of Appeal

R.L. Berger, P.W.L. Martin and B.K. O'Ferrall JJ.A.

Heard: June 21, 2016.
Judgment: September 19, 2016.
(35 paras.)
Appeal From:
On appeal from the Sentence by the Honourable Madam Justice M.C. Erb Dated the 27th day of May, 2015 (Docket: 130124621Q1).

Memorandum of Judgment

·         The following judgment was delivered by 

·         THE COURT:-- 
I. Introduction
1     The appellant appeals his sentence of two-years less-a-day for dangerous driving causing death. Under section 249(4) of the Criminal Code, everyone who operates a motor vehicle in a manner which is dangerous to the public and thereby causes death is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years.
2     The appellant asks that the two-years less-a-day sentence imposed by the sentencing judge be replaced with a sentence of six months incarceration followed by a period of probation.
3     The appellant argues that the sentence imposed was unduly harsh having regard to cases that have imposed lower sentences in what the appellant argues were similar circumstances and similar offences. He argues that a sentence of less than six months would accomplish the sentencing objectives of denunciation and deterrence. The appellant further submits that, in arriving at the sentence she did, the sentencing judge overemphasized his previous driving record (four prior convictions in contravention of the restriction in his learner's permit requiring him to drive only if accompanied by a fully-licenced driver). Finally, the appellant argues that the sentencing judge failed to give sufficient consideration to the immigration consequences of the sentence imposed.
II. Background
4     At 6:30 a.m. on a January morning in 2013 the appellant ran a stop sign on Big Hill Springs Road (secondary highway 567) and killed the driver of a vehicle driving south along Simons Valley Road (secondary highway 772).
5     The appellant pled not guilty to the charge. He did agree to a statement of facts which were put before the trial judge by counsel for the defence and the Crown. In that agreed statement of facts, the appellant admitted, inter alia, that:

·         (a) 
he was driving alone on the day in question in contravention of his Class 7 Operator's Licence (commonly referred to as a learner's permit or learner's licence) and that he was aware that he was required to have a fully-licenced driver supervising him when he was driving; 

·         (b) 
his vehicle passed nine warning signs that he was approaching a major intersection and was required to stop and that those warning signs were as follows: 

·         (i) 
a stop sign at the intersection; 

·         (ii) 
a flashing red light on top of the stop sign clearly visible from approximately half a kilometer from the intersection; 

·         (iii) 
a roadsign a half a kilometer from the intersection stating "Important Intersection Ahead"; 

·         (iv) 
the words "Stop" and "Ahead" painted on the road surface roughly 400 meters from the intersection; and 

·         (v) 
five sets of rumble strips warning of the intersection and the need to stop; the rumble strips were located 301, 253, 197, 147 and 100 meters, respectively, from the intersection stop line; 

·         (c) 
there were no obstructions restricting visibility; 

·         (d) 
the appellant did not brake or veer prior to the collision; and 

·         (e) 
the appellant's vehicle, including its brakes, were operating properly. 
6     Prior to the accident which resulted in the victim's death, the appellant, a 25-year-old Nigerian citizen who was in Canada on a student visa and who had only a learner's permit to drive, had been given four traffic tickets for driving without being accompanied by fully-licenced driver, as required by a learner's permit. His learner's permit was issued in March of 2011, shortly after he arrived in Canada at 23 years of age. His first ticket was issued in July of 2011 (he was convicted in September of 2011). The three other tickets were issued in January, February and March of 2012 (for which he was convicted in February, March and November, 2012, respectively). On the day of the fatality which gave rise to this charge (January 9, 2013) he was also driving without the required supervision.
III. The Sentencing Decision
7     Before delivering the sentence, the sentencing judge set out the circumstances of the offence. In particular, she noted the appellant was aware that he was not to drive without having a fully-licenced driver in the vehicle with him and also emphasized the fact that there were numerous indicators of the need to stop at the intersection which the appellant failed to heed. The sentencing judge then reviewed the circumstances of the offender, including his difficult early experiences in Nigeria, his coming to Canada and the fact that he was sincerely remorseful about the death of the driver of the other vehicle (though she noted that, according to the writer of the Pre-sentence Report, the appellant diminished his role in the tragic events). The sentencing judge also took into consideration the terrible loss suffered by the victim's family as illustrated by the victim impact statements.
8     After reviewing the principles and objectives of sentencing set out in the Criminal Code, the sentencing judge considered the aggravating and mitigating circumstances. She found the appellant's multiple prior convictions for not complying with the restrictions of his learner's licence to be aggravating. As to mitigating factors, she noted that the appellant had complied with the conditions of his judicial interim release, had expressed remorse and had proceeded to trial on the basis of an Agreed Statement of Facts with the result being that no additional witnesses needed to be called at trial. The sentencing judge also considered the immigration consequences of the appellant's conviction.
9     Before imposing sentence, the sentencing judge noted that, given the diversity of circumstances in dangerous driving cases, there was no sentence starting point for this offence. Having considered the circumstances of the offence and the offender, the sentencing judge found the gravity of the offence to be profound and the degree of the appellant's moral and legal blameworthiness to be high and as a result imposed a term of imprisonment of two-years less-a-day.
IV. Issues on Appeal
10     The appellant submits that the sentence imposed was unduly harsh. Therefore we must determine whether or not in the circumstances of this case a two-year sentence for dangerous driving is a fit sentence. In addressing this issue, we must consider the appellant's arguments that a less-restrictive sanction would be appropriate in the circumstances and would meet sentencing objectives and his argument that the trial judge erred in overemphasizing the appellant's previous convictions for driving without the required supervision. We must also consider, based on the case law, whether the sentence imposed in this case is within the range of sentences for cases involving similar circumstance and similar offences. Finally, we must address the appellant's argument that the trial judge did not give sufficient consideration to the immigration consequences of the sentence imposed.
V. Standard of Review
11     The standard of appellate review in sentence appeals is deferential. To ground intervention, the sentence must be "not fit", "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see for example R v M(CA), [1996] 1 SCR 500, 105 CCC (3d) 327). This court may vary a sentence where there has been an error in principle, a failure to consider a relevant factor or an overemphasis of an appropriate factor, but only if the sentence is demonstrably unfit. An appellate court cannot intervene "simply because it would have weighed the relevant factors differently" (R v Lacasse, 2015 SCC 64 at para 49, [2015] 3 SCR 1089). An overemphasis of a relevant factor or failing to give sufficient weight to a relevant factor may amount to an error in principle requiring appellate intervention, but only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercised his or her discretion unreasonably: R v McKnight (1999), 44 OR (3d) 263, [1999] OJ No 1321 (QL) at para 35 (CA).
VI. Analysis

·         A. Would a sentence of six months or less satisfy the purposes of sentencing?
12     The appellant submits that the fundamental purpose of sentencing set out in section 718 of the Criminal Code could be met by a less-restrictive sanction. More specifically, the appellant argues that a custodial sentence of six months or less, with or without probation, would achieve that purpose.
13     For reasons which we will set out below, we are not of the view that the trial judge erred in imposing the sentence she did. That is, we do not agree that the sentencing judge erred in finding that the purpose and objectives of sentencing would not be satisfied by a term of imprisonment of six months or less, as the appellant had proposed.

·         B. Did the sentencing judge place undue emphasis on the appellant's driving record?
14     The appellant submits that the sentencing judge overemphasized his previous convictions for violating the terms of his learner's licence. He argues that the non-compliant behaviour, namely driving without the required supervision, had no bearing on his willingness to ignore danger and accept risk nor on the dangerousness of his driving at the time the offence took place. We cannot agree.
15     The requirement that those with a learner's licence not operate a vehicle without the supervision of a fully-licenced driver exists for a reason. The person with the learner's licence not only benefits from the presence of an experienced driver, but also from having a second set of senses in the vehicle. It is reasonable to think that, had an experienced driver been with the appellant on the morning of January 9, 2013, the tragedy that took place could have been avoided.
16     The appellant was very much aware that one of the conditions of his learner's permit required that he not operate a vehicle without a fully-licenced driver being present. Indeed, he had been convicted of failing to adhere to this condition on four separate occasions prior to January 9, 2013 when he, yet again, operated a vehicle without the required supervision. The conditions on learners' permits exist for the safety of both the licence holder and the general public. Although the appellant did not set out that fateful day intending to hurt anyone, let alone kill someone, in making the deliberate decision to drive without the required supervision, he disregarded a condition of his licence designed to ensure not only his own safety, but that of others as well.
17     Conditions on learners' permits are not negotiable or optional. It is not open to the holder of a learner's permit to decide that one or more requirements do not apply to him or her. If it were so, public safety would be compromised. Therefore, we do not agree with the appellant that the sentencing judge placed undue emphasis on the appellant's driving record or the fact that, on the day in question, the appellant again chose to drive without the supervision required under his learner's licence.

·         C. Is the sentence in this case within the range of sentences in dangerous driving cases with similar offenders and similar circumstances?
18     The appellant argues that the sentence of two years less a day is unduly harsh considering that there was no alcohol involved, no evidence he was driving recklessly prior to the accident, an expression of remorse by the appellant, and considering his personal circumstances and the immigration consequences of his conviction. The appellant argues that the facts of this case are more like to cases where a short-custodial sentence (e.g., 90 days) coupled with community service and probation or a suspended sentence have been imposed than to cases where substantial custodial sentences have been imposed.
19     Sentencing is an individualized process (see for example M(CA)) at para 92). Nowhere is this more apparent than sentencing those convicted of the offence of dangerous driving causing injury or death where courts throughout Canada have recognized the difficulty in comparing cases as the nature of the offender and the circumstances surrounding the offence vary greatly (R v Grenke, 2012 ABQB 198 at para 21, 537 AR 287, R v Dunford, 2015 SKQB 386 at para 42 (CanLII)). For this reason, in the case of dangerous driving offences, various courts have noted the futility of establishing sentencing starting points (e.g., R v Chikie, 2011 ABQB 420 at para 32, 527 AR 44) and also noted that the range of appropriate sentences is very broad (R v Hansell, 2015 MBQB 109, 318 Man R (2d) 169).
20     That being said, sentencing ranges are useful to the extent that they assist the court in applying the relevant sentencing principles and objectives (Lacasse at para 57). Alive to the wide range of circumstances in dangerous driving cases, we note that sentencing ranges are not "straightjackets" (to paraphrase Wagner, J. in Lacasse at para 69).
21     In considering the appropriate range of sentence in the present instance we are mindful that courts throughout Canada have stressed the importance of deterrence and denunciation in the sentencing of those convicted of dangerous driving causing death or injury (Grenke at paras 23-31, Dunford at 29). In the recent British Columbia Court of Appeal decision in R v Bosco, 2016 BCCA 55, Madam Justice Dickson discussed issues in sentencing in the case of dangerous driving offences:

·         General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn, [2012] O.J. No. 3096 at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conduct and serve to warn like-minded others that it will not be tolerated. 

·         Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775 at para. 25; Johnson at [1996] B.C.J. No. 2508, para. 30. (paras 38-39) 
22     Although the court in Bosco was considering sentencing in the context of dangerous driving causing bodily harm, the court's reasoning also applies to cases of dangerous driving causing death. Similar reasoning is likely behind trends noted by Justice Germain in Grenke in his list of "commonsense propositions" regarding the sentencing of dangerous driving offenders, some of which are as follows:

·         2. 
lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an [sic] no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; 

·         ... 

·         4. 
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. (para 34) 
23     Having read the transcript of the submissions before the sentencing judge as well as her sentencing decision, having considered the written and oral arguments by appellant's counsel and the Crown, having reviewed the case law put before us and bearing in mind the standard of review applicable to sentence decisions, we are not convinced appellate intervention is warranted in this case as we are not satisfied the sentence imposed is unfit.
24     It is apparent that the sentencing judge placed significant weight on the appellant's decision to drive without the required supervision both at the time of the incident and on a number of occasions prior to that. For reasons already discussed, we do not think it was unreasonable of her to do so.
25     As to the moral blameworthiness of the appellant, the judge's sentencing decision quite properly considered the appellant's driving without the requisite supervision to be risky behaviour. We do not consider this to be an unreasonable characterization. As the trial judge noted, "[t]he inattentiveness here was not only substantial, it was prolonged over half a kilometer distance in the face of repeated warnings". It is hard to imagine two occupants of a vehicle both failing to notice the numerous warnings, including rumble strips, of the need to stop at an upcoming intersection. The appellant's culpability was exacerbated by the fact that, despite multiple "reminders" that he was required to drive with supervision, the appellant repeatedly chose to engage in the prohibited behaviour.
26     The cardinal principle of sentencing is proportionality: the sentence imposed should reflect the gravity of the offence and the moral blameworthiness of the offender. In the present case, the gravity of the offence was high. The consequence of the impugned conduct was the most terrible imaginable--the loss of a life. Society's recognition of this gravity was reflected in changes to the Criminal Code in 2007 which made those convicted of dangerous driving causing death ineligible for conditional sentences. Given the significant gravity of the offence and the sentencing judge's conclusion that the appellant's conduct attracted an "exceedingly high degree of moral and legal blameworthiness" and our consideration of the cases provided to us by counsel, we do not believe a term of imprisonment of two years less a day is outside of the acceptable range of sentences or otherwise an unfit sentence considering the circumstances.

·         D. Immigration Consequences
27     The appellant submits that the trial judge erred in not giving sufficient consideration to the effect of the sentence imposed on his immigration status about which we note the evidence was less than satisfactory. It appears that, regardless of his criminal conviction and sentence, Mr. Mbachu faced the possibility of being the subject of a removal order. His student visa has expired. He has no work permit. He is not a permanent resident. And there was no evidence that the appellant holds a temporary resident permit or has temporary resident status. Consequently, on the record before us, he appears to have been a foreign national with no authorization to be in Canada.
28     Regardless of his seemingly precarious immigration status prior to trial, as a result of his criminal conviction Mr. Mbachu became "inadmissible" under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), which means a removal order can be made against him without an admissibility hearing. Subsections 36(1)(a) and 36(2)(a) of IRPA read:


(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years [the maximum term for dangerous driving causing death is 14 years], or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. 

·         (2) 
A foreign national is inadmissible on grounds of criminality for 

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence [emphasis added] 
29     Under both of these grounds, a foreign national may be subject to a removal order without an admissibility hearing (s. 44(2) IRPA and s. 228(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227). However, where a foreign national is deemed to be inadmissible on grounds of "serious criminality", more specifically where a foreign national has been sentenced to a term of imprisonment of at least six months, there is also no right to appeal the removal order to the Immigration Appeal Division (s. 64 IRPA).
30     In considering the immigration consequences of any sentence imposed upon the appellant, it is important to understand that the appellant faces the possibility of deportation as a consequence of having been convicted of an indictable offence (s. 36(2)(a)), regardless of the term of imprisonment. The only immigration consequence of the sentence imposed is that because the appellant was sentenced to a term of imprisonment longer than six months, he will not have the ability to appeal any deportation order which may be made.
31     At trial, defence counsel summarized the appellant's situation as follows:

·         Okay, Well, in the present case, presently, his visa has expired in any event. He is a foreign national with no visa. He's not a permanent resident. So currently -- his current status, as soon as this Court make a ruling, there will be a Section 44 deportation order given and he's going to be deported. If that's going to go fast-track, if it's six months or more, he can't even appeal it. And his chances on appeal, from my understanding, are very remote but there is -- that option is kept open for a hearing. 
32     On appeal, the appellant does not argue that the trial judge was unaware or otherwise ignored the fact that Mr. Mbachu faces significant immigration consequences. Rather, the appellant argues that the trial judge failed to give sufficient consideration to the effect of sentencing on the appellant in terms of his immigration status. While acknowledging that immigration consequences should not dominate the sentencing process, the appellant argues, citing the Supreme Court of Canada decision in R v Pham, 2013 SCC 15, [2013] 1 SCR 739, that these consequences should be given appropriate consideration.
33     In Pham, the Supreme Court considered the issue of the immigration consequences arising from sentencing and concluded that where the trial judge is aware of the immigration consequences and applies the proper sentencing principles but still arrives a sentence that results in the accused losing the right to appeal a removal order, then, absent fresh evidence, that decision is owed deference (para 23). As Justice Wagner, for the court, went on to explain at paragraph 24:

·         An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court's intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender's immigration status, there will be other cases in which it is not appropriate to do so. 
34     In the present case, the trial judge was aware of the immigration consequences for the appellant of imposing a term of imprisonment of greater than six months. But given what we have said above about the fitness of the two-year-less-a-day sentence imposed, to drastically reduce that fit sentence to less than six months in order to ameliorate the immigration consequences of the sentence would have been inappropriate.
VII. Conclusion
35     In conclusion, we are of the view that the sentence imposed was not unfit. The sentencing judge exercised her discretion in a reasonable way and our intervention is not warranted. The appeal is therefore dismissed. The appellant will surrender himself to the Calgary Police within 48 hours of the filing of this Judgment.
Memorandum filed at Calgary, Alberta this 19th day of September, 2016

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