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
Between
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:
|
36
|
|
(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
R.L. BERGER J.A.
P.W.L. MARTIN J.A.
B.K. O'FERRALL J.A.
