



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Hayes,







2006 
          BCCA 29



Date: 20060119





Docket: CA033120

Between:

Regina

Respondent



And

Andrew 
    Thomas Hayes

Appellant












Before:


The 
          Honourable Madam Justice Southin




The 
          Honourable Madam Justice Prowse




The 
          Honourable Madam Justice Levine



Oral Reasons for Judgment




D. 
          Turko


Counsel for the Appellant




M. 
          Brundrett


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




19 January 2006





[1]

SOUTHIN, J.A.
:  This is an application for leave to appeal 
    and, if leave be granted, an appeal from a sentence of 18 months imposed upon 
    the applicant for the offence of dangerous driving under s. 249(2) of the
Criminal Code
.  The maximum sentence for this offence is five 
    years.  There is, therefore, no issue about the legality of the sentence.

[2]

The offender is a man of about 36 or 37 years, who has a long criminal 
    record going back at least to 1991 which includes several convictions for 
    dangerous driving.  We do not have before us any material as to the nature 
    of the dangerous driving, but a conviction for dangerous driving is a matter 
    of consequence.

[3]

On the particular occasion, the accuseds response to the facts of 
    the driving was that he was suffering from some kind of diabetic event which 
    affected his ability to drive.  The learned judge took the view that the accused 
    certainly ought to have appreciated that he was in no condition to be driving.

[4]

The
Criminal Code
provisions as to sentencing were clearly 
    before the learned judge and in her mind when she addressed the issues.

[5]

Even if an expression used by a trial judge might attract some dispute 
    in this Court, the ultimate question for us always is whether the sentence 
    on all the facts was a fit sentence.  I am certainly unable to say that for 
    someone with this record of dangerous driving a sentence of 18 months is in 
    and of itself unfit.

[6]

The problem which Ms. Turko has raised with us - and I must say I have 
    found most enlightening her explanation of how parts of the
Corrections 
    and Conditional Release Act
work  is that the applicant was at the 
    time of the offence in issue here on parole on a four-year sentence for breaking 
    and entering.  Immediately upon his being arrested on this offence his parole 
    was suspended and he was returned to a penal institution.  In this case the 
    Corrections authorities put him in a provincial institution although they 
    could have put him in a federal institution.  Because he was put into a provincial 
    institution, the way the system works, he was unable after 120 days from his 
    parole suspension to apply to have his parole reinstated.  For some reason 
    that does not happen in the provincial system but it must happen in the federal 
    system.

[7]

Ms. Turko suggests that the learned judge ought to have taken that 
    fact into account in arriving at her conclusion.  I am not sure that on a 
    close reading of her reasons she did not have it more or less in mind, perhaps 
    not in those exact terms, but she accepted the commonly held opinion that 
    provincial time is harder than federal time.  That is one of those commonly 
    held opinions that I have never seen satisfactorily proven, but
communis 
    error jus
if nothing more.  In the circumstances, even if she might have 
    given some more weight to that point, the question for us in the end is not 
    the process of reasoning of the learned judge below but the result.  The result 
    here is not one that I think can be characterized, especially in light of 
    his record, as unfit.

[8]

Therefore, while I would grant leave to appeal I would dismiss the 
    appeal.

[9]

PROWSE, J.A.
: I agree.

[10]

LEVINE, J.A.
: I agree.

The Honourable Madam Justice Southin


