APPEAL NUMBER: 98-17728 IN THE COURT OF APPEAL OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN, - and - APPELLANT CHRISTOPHER SHONDERS GOODSTONEY, RESPONDENT Appeal from the Sentence by THE HONOURABLE JUDGE MALONEY Sentence the 8th day of April A.D. 1998 the Accused having pled Guilty SENTENCE MATERIALS OF THE CROWN APPELLANT G. TOMLJANOVIC L. E. HURSH AGENT OF THE ATTORNEY GENERAL OGLE, HURSH, BALLY ALBERTA JUSTICE, APPEALS BRANCH BARRISTERS AND SOLICITORS CRIMINAL JUSTICE DIVISION 402,1015-4 STREET S.W. 1620,639-5 AVENUE S.W. CALGARY, ALBERTA CALGARY, AB T2R 1 J4 T2P OM9 Counsel for the Applicant Counsel for the Respondent
IN THE COURT OF APPEAL OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN, - AND - APPELLANT CHRISTOPHER SHONDERS GOODSTONEY, RESPONDENT SENTENCE MATERIALS OF THE CROWN APPELLANT QUESTIONNAIRE 1. Court and Judge convicting: 2. Trial or Plea: 3. Jury: 4. (a) Offences: (b) Summary Conviction: 5. (a) Sentence: (b) Total Sentence: Provincial Court at Calgary, Alberta The Honourable Judge F. L. Maloney Guilty S. 221 C.C. (Criminal Negligence Causing Bodily Harm) S. 220(b) C.C. ( Criminal Negligence Causing Death) Count #1-3 years imprisonment, Driving Prohibition for 10 years Counts #2, #3, #4, #5-5 Years Imprisonment Global Sentence - 5 Years Imprisonment
Sentence Material Page 2 (c) Probation Conditions: (a) Date of Sentence: April 8, 1998 (b) Date of Offence: June 23, 1996 Time in Custody: (a) Date of Bail Pending Appeal: (b) Community Service: Serving Time on Other Sentences: Mandatory Release from Last Sentence: (a) Co-accused Sentences: (b) Record: (a) Offender's Record: (b) Page: Offender ' s Employment: (a) Age at Offence: (b) Age Now: PSR or Medical Reports: Victim Impact: 3 Months No No Unknown 18 Years 20 Years S.A.B. 82-161
Sentence Material Page 3 A. Facts 1. On February 20, 1998, the accused pled guilty to the following offences: COUNT #1: COUNT #2: COUNT #3: COUNT #4: COUNT #5: That he, on or about the 23rd day of June 1996, at or near Morley, Alberta, did by criminal negligence in the operation of a motor vehicle, unlawfully cause bodily harm to Shannon Aaron Shortneck, contrary to Section 221 of the Criminal Code of Canada. That he, on or about the 23^ day of June 199, at or near Morley, Alberta, did by criminal negligence in the operation of a motor vehicle, unlawfully cause the death ofamber Lynn Keuben, contrary to Section 220(b) of the Criminal Code of Canada. That he, on or about the 23rd day of June 1996, at or near Morley, Alberta, did by criminal negligence in the operation of a motor vehicle, unlawfully cause the death of Craig Douglas Powell, contrary to Section 220(b) of the Criminal Code of Canada. That he, on or about the 23rd day of June 1996, at or near Morley, Alberta did by criminal negligence in the operation of a motor vehicle, unlawfully cause the death of Brandy Ann Keuben, contrary to Section 220(b) of the Criminal Code of Canada. That he, on or about the 23rd day of June 1996, at or near Morley, Alberta did by criminal negligence in the operation of a motor vehicle, unlawfully case the death of Stephanie Lynn Smith, contrary to Section 220(b) of the Criminal Code of Canada. 2. For these offences the accused was sentenced to a global sentence of five years incarceration and a ten year driving prohibition. 3. The facts are set out in the Agreed Statement of Facts filed with the court as Exhibit 1. (SAB 164-7) Briefly, the offences occurred at 5:30 p.m. Sunday, June 23, 1996, on Highway 1 A, approximately 45 km. west of Cochrane, Alberta. The highway at that location is a two lane
undivided asphalt surface with no shoulders and a posted speed limit of 80 kmh. The accused, who was 18 years old and without a drivers license, was driving a Jimmy westbound on the highway. There was a passenger, Shannon Shortneck, in his vehicle. At an earlier time he passed another vehicle travelling in the same direction at an estimated speed of 150 krnh. across a solid centre line while entering a curve in the road where it was impossible to see oncoming traffic. The accused=s vehicle was then seen to weave from the north edge of the road to the south edge two or three times, raising dust on each edge. Three kilometres later, while travelling in his proper lane, the accused took his eyes off the road to locate a cassette tape, causing the passenger side of the vehicle to leave the asphalt surface. The accused overcorrected and veered across the centre line. Travelling eastbound at that location were two vehicles, the Hodgins= vehicle and the victim vehicle. The latter was a white Daytona containing four people; Craig Powell (age 27), Amber Keuben (age 20), Brandy Keuben (age 15) and Stephanie Smith (age 14) who were returning home from a camping week-end in Banff. The Jimmy was headed for the Hodgins= vehicle when the accused veered to the centre, but missed it and collided head on with the Daytona, killing all four of its occupants and seriously injuring the accused and his passenger. A blood sample taken from the accused at the hospital two hours after the accident showed a blood alcohol level of 190 mg.%. The accused=s blood alcohol reading at the time of driving could have been anywhere from 125 mg.% to 230 mg.%. Blood tests taken at the hospital also revealed that the accused had smoked a marijuana cigarette at about 4 p.m. that day. C. Aggravating Circumstances 4. The aggravating circumstances in this case include the following: 1. The accused caused the immediate deaths of four people. 2. He caused serious injuries to his own passenger. 3. The degree of negligence was significant.
4. The accused was impaired by alcohol to approximately twice the legal limit. 5. The accused had also consumed some marijuana that day 6. The accused was not qualified to drive a motor vehicle, even if he had been sober, and had no driving experience prior to the date of the offence. 7. Prior to the collision, the accused committed an extremely dangerous passing manoeuver at almost twice the speed limit and on a curve with no visibility respecting oncoming traffic. 8. The subsequent weaving also showed great recklessness and an inability to control his vehicle. 9. The deaths of the four young people has had a devastating impact on their families as evidenced by the 25 victim impact statements from immediate family and greater family members filed with the court. D. Mitigating Circumstances 5. The mitigating circumstances in this case include: 1. Guilty pleas entered after the preliminary hearing. 2. No prior record. 3. The young age of the offender. 6. Although the accused did spend some time in pre-trial custody, it was agreed by both parties (SAB 11110-40) and accepted by the learned trial Judge (SAB 57/37-43) that he would get no credit for that because it arose from breaches of his bail. As explained in the submissions of Defence counsel at trial, the accused had his bail revoked on Queen=s Bench bail review as a result of twice violating the prohibition against alcohol consumption. (SAB 35/14-30)
Sentence Material Page 6 E. Positions at Trial 7. The Crown at trial took the position that a sentence approaching eight years incarceration was appropriate. (S.A.B. 30129-39) 8. The Defence at trial submitted that three to four years was appropriate in the circumstances. (S.A.B. 49142-7) F. Reasons of the Learned Trial Judge 9. In imposing sentence the learned trial judge made rulings which include the following: 1. The conduct resulting in the collision is inexcusable (SAB 57119). 2. AThe victim impact statements reflect bitterness, loss, compassion, hopelessness, and despair. s (SAB 6 116-7) 3. Section 718.2(e) of the Criminal Code did not apply as the only reasonable sentence the court could impose in this case was imprisonment in a penitentiary (SAB 62/43-6313). 4. The aggravating circumstances include impairment, a pattern of bad driving, and the horrible consequences of four deaths and one serious injury (SAB 6413 1-9). 5. It is appropriate to refer to the decision of the Alberta Court of Appeal in R. v. Mellstrom with respect to not letting the tragic consequences unduly distort the consideration of an appropriate sentence (SAB 64140-6513). G. Sentencing Principles 10. The general sentencing principles are set out in ss. 718 and 718.1 of the Criminal Code, which state:
S. 718. Purpose -- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) (b) (c) to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; (4 to assist in rehabilitating offenders; (e) (f) to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. S. 718.1 Fundamental -- A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 1 1. In cases of motor vehicle deaths, the primary consideration in sentencing is deterrence. This is particularly true where the offence is criminal negligence and alcohol is a factor.' 12. In R v. Revoy (supra) the accused was convicted of criminal negligence causing a single death and was sentenced to 4 years imprisonment plus a five year driving prohibition. This Court dismissed a Crown appeal from sentence on the basis that accused=s culpability was mitigated somewhat by the fact that the deceased voluntarily rode on the hood of the truck and thereby contributed to his death. Cote, J. A., dissenting, would have imposed a sentence of 5 112 years. 'R v. Revoy (1993) 145 A.R. 236 (C.A.)
Sentence Material Page 8 13. Another important principle of sentencing is retribution. In R. v. M. the majority judgement of Lamer, C. J.C., stated: Alt is well recognized by this court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law......... Retribution, as an objective of sentencing, represents nothing less than the hallowedprinciple that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven in the existingprinciples of sentencing in Canadian law through the fundamental requirement that a sentence imposed be >just and appropriate= under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions.~ 14. Proportionality between the sentence and the harm done is required to maintain public confidence in the administration of justice. Retribution functions, according to O'Hearn, J. in R. v. Sumarah3, as a limiting factor: "Accordingly, the measure of punishment must be the harm that the offender has actually committed. That, no doubt, is why parliament has allotted different maximum penalties for different offences. No matter how large a penalty it thinks would actually be required to deter any specific individual in any particular case, a Court is not justified in going beyond the magnitude ofpenalty that is *R. v. M. (C.A.) (1996) 105 C.C.C. (3d) 327 at 366-7 (S.C.C.) 3~. v. Sumarah [I9701 5 C.C.C. 317 at 325 (N.S.Co.Ct.)
prescribedfor the harm done. This indicates that however much retribution is out of favour these days as a concept, it remains part of the law because of the persistent demand for it, not only by the public and injuredparty, but by the criminal himself.^(emphasis added) 15. On the question of consequences this Court, in R. v. Melistrom4, has stated the following: Awhile the enormity of the tragic consequences of an offence is a factor to be taken into consideration it must not be permitted unduly to distort the consideration of the Court as to the appropriate sentence for the offence committed. In other words, applying this line of reasoning to the case under consideration the fact that three people were killed should not be permitted to magnify the offence in the minds of the Judges over its sufficient serious nature if only one person had been the victim. s 16. In Mellstrom (supra) the accused was convicted of three counts of criminal negligence causing death and one of bodily harm for driving his car into a crowd of people. The accused was 19 years old, impaired by drugs, and had two prior convictions for drug offences. He spent 6 months in pre-trial custody and received a global sentence of 3 112 years incarceration, with a 10 year driving prohibition. ^R. v. Mellstrom (1975) 22 C.C.C. (2d) 472 at 486-7 (Alta. C.A.)
Sentence Material Page 10 17. In the subsequent decision of R. v. Jacobs5 this Court, while noting the principle in Mellstrom (supra), also noted that in the cases of dangerous driving causing death the consequences do effect the sentence in many, if not all, cases. 18. In R. v. Konkolus6 this Court again considered the principles in Mellstrom (supra) and concluded that they had no compelling reason to depart from those principles. Konkolus involved a conviction for criminal negligence causing death and three of causing bodily harm. The accused was sleepy and had been drinking when he ran a stop sign and struck a van, killing one occupant and seriously injuring three others. He fled the scene and had a lengthy record for drinking and driving offences. The global sentence imposed was 7 years incarceration and a lifetime driving prohibition. 19. Since these decisions were rendered, Parliament has enacted Bill C-41 which codified the general sentencing principles, as listed above, as well as introducing new provisions effecting the sentencing process. One of those was the process for receiving victim impact statements for consideration in determining a fit sentence. The section reads: AS. 722(1) Victim Impact Statement - For the purpose of determining the sentence to be imposed on an offender or whether the offender should be dischargedpursuant to section 730 in respect of an offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arisingfiom the commission of the 0ffence.s ^R. v. Jacobs (1982) 39 A.R. 391at 395 (C.A.) 6 ~ v.. Konkolus (1988) 86 A.R. 144 at 148 (C.A.)
20. Ins. 722(4) Avictims is defined to include the person to whom harm was done, or who suffered physical or emotional loss as a result of the offence. In the case where the victim has died, the definition includes any relative, thus expanding the Aconsequences of the offences to include not only the immediate consequences of the death and injuries caused but the further consequences of physical and emotional loss to family members of the dead and injured. 21. There is a further principle of sentencing that no criminal offence committed by an accused should be free. That is why the principle against double jeopardy still permits convictions to be entered for separate offences where there is a single act, but numerous victims. The reason for this requirement is that an accused should be held accountable for every criminal misdeed proven against him. As Dickson C.J.C. stated in R. v. Prince 7: "No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omittedfiom the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted. " 22. The nature of the crime committed is measured not only by the degree of responsibility of the offender, but by the seriousness of the harm done. Thus the seriousness of the offence must include the consequences of the offence. As stated by Sopinka, J. in R. v. DeSousa8: ^R. v. Prince (1986) 30 C.C.C. (3d) 35 at 49 (S.C.C.) *R. v. DeSousa (1992) 76 C.C.C. (3d) 124 at 141 (S.C.C.)
Sentence Material Page 12 ACourts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response. E 23. English authorities take a much more direct approach to the assessment of consequences. Where there are multiple deaths, that is to be taken as more criminal than the where there was a single death and the court should recognize that fact.' 8. Other Sentencing Cases 24. In addition to the cases already cited, the following cases are indicative of the range of sentence imposed for this type of offence. 25. In R. v. ~appenbushlo this Court upheld a sentence of 5 years for a 20 year old accused convicted of criminal negligence causing two deaths. The accused had an alcohol reading of 180 mgs.% and was speeding through a red light when he collided with the victims. He had no prior criminal record although he had a few speeding infractions. 26. In R. v. patrick'' the accused pled guilty to criminal negligence causing two deaths and failing to stop. The accused was high on cocaine and involved in a lengthy pattern of bad driving 'R. v. Chadwick (1990) 12 Cr. App. R. (S.) 349 at 352 'OR v. Lappenbush (unreported, April 18, 1989, Alta. C.A.) R. v. Patrick (unreported, December 16, 1992, Alta. C.A.)
which culminated in a collision when he was running a red light. The accused was 30 years old, employed and appeared to have no prior record. On appeal his 5 year sentence was increased to 7 years. 27. In R. v. ~yseyko'~, a decision of Mr. Justice Purvis of the Alberta Queen=s Bench, an accused facing a number of offences, including criminal negligence causing one death, and four counts of criminal negligence causing bodily harm received a sentence of 7 years. The accused engaged the police in a high speed chase when they frustrated his robbery attempt. After a pattern of bad driving he ran a red light and collided with the victim vehicle, killing one passenger and seriously in jurying the others. There was a separate high speed chase on another date for which he received a consecutive global sentence of 6 months. The accused had a significant record relating to property offences, break-ins, and robbery. 28. In R. v. Bla~krabbit~~, a decision of Mr. Justice Waite of the Alberta Queen=s Bench, the accused received 8 years for criminal negligence causing two deaths. He had a terrible driving record. There was an alcohol reading of 270 mgs.% and a bad driving pattern leading to a head- on collision on the wrong side of the road. The court found no mitigating factors. 29. In R. v. Brough (J.P.)^ this Court upheld a sentence of 4 112 years for three counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. The 19 year old accused was driving 100 krnh. through a residential street at night with his lights off. When he ran a red light he collided with another vehicle, killing three people and injuring two others. 2 ~ v.. Lyseyko (unreported, September 6, 1985, Alta. Q.B.) 3~. v. Blackrabbit (unreported, September 16, 1996, Alta. Q.B.) 14R. v. Brough (J.P.) (1993) 145 A.R. 70 (C.A.)
30. In R. v. Lunnl' the Court upheld a sentence of 8 years for criminal negligence causing death. The accused was driving a vehicle in poor mechanical condition and was impaired. The accused's vehicle left the road, killing his wife who was a passenger. The accused had seven prior convictions for drinking and driving offences as well as unrelated convictions. 1 5 ~. v. Lunn (1992), 71 C.C.C. (3d) 114 (B.C.C.A.)
3 1. In R. v. purdy16 the accused was sentenced to 6 112 years incarceration for killing three people and seriously injuring one other. He was 23 years old, had a significant related record, and had a blood alcohol level over the legal limit. The accident occurred after a pattern of bad driving involving high speed and the running of red lights in the city. 32. In R. v. Anderson" the Court upheld a sentence of 5 years imprisonment plus a 15 year driving prohibition for two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The accused had been driving erratically at a high rate of speed, and crossed over into the lane of oncoming traffic resulting in a head-on collision, leaving two people dead and one permanently injured. The accused had a minor prior record for property offences and a conviction for refusing to comply with a breathalyzer demand. He was not found to be impaired at the time of the accident. 1. Submissions 33. It is the Crown=s position that the sentence imposed is unfit in the circumstances and that a higher sentence should be substituted. 34. The Crown further submits that the principle in R. v. Melhtrom (supra) is wrong if it means that a sentence which is fit for a single victim offence would be fit for a multiple victim offence. 6 ~ v.. Purdy (unreported, May 1997, Alta. P.C.) 'R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A.)
Sentence Material Page 16 35. Such an interpretation, if it was the intent of Mellstrom, has been overruled by recent amendments to the Criminal Code as reflected in Bill C-41 and by subsequent decisions of the Supreme Court of Canada which recognize that the gravity of the offence includes not only the moral culpability of the accused but the full consequences of the act. 36. Those consequences which a sentencing judge must consider now include not only the direct victims of the criminal act, but also the families of those victim who suffer physical and emotional loss as a result. 37. If this Court concludes that the legislation and pronouncements of the Supreme Court have not expressly overruled Mellstrom, then the appellant submits that this Court should reconsider that principle in light of the circumstances of this case and the greater need for both deterrence and denunciation for multiple death and injury cases involving drinking drivers. 38. Should this Court choose not to overrule Mellstrom, it is still the Crown=s position that the sentence imposed is demonstrable unfit. The range of sentences imposed for similar offences show that a sentence of four or five years is at the lower end of the range. The Crown submits, as it did at trial, that these circumstances require a consideration of the upper end of the range. 39. The Crown further submits that the range of sentences imposed for these types of offences is too low. Given the maximum penalty of life imprisonment for each offence, this many deaths, even when arising from one incident, should attract a sentencing consideration in the double digits. ALL OF WHICH IS RESPECTFULLY SUBMITTED: Goran Tomljanovic Appellate Counsel for the Attorney General