



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Christink, 2012 ONCA 141

DATE:  20120306

DOCKET: C52142

Simmons, Armstrong
    JJ.A. and Then R.S.J. (
ad hoc
)

BETWEEN

Her Majesty The Queen

Appellant

and

Isaac Steven
    Christink

Respondent

Gregory J. Tweney, for the appellant

R. Craig Bottomley, for the respondent

Heard and released orally: February 24, 2012

On appeal from sentence imposed by Justice R. M. Thompson
    of the Superior Court of Justice on April 26, 2010, with reasons reported at
    2010 ONSC 2396.

ENDORSEMENT

[1]

The respondent was convicted of two counts of dangerous driving
    causing death. The circumstances of the offences involved the respondent
    driving a late model sports car at a speed of more than twice the legal limit
    at night
and failing to slow down in the face of warning
    signs. As a result, the 32-year-old respondent was unable to negotiate a curve
    in the road and the car he was driving smashed into a guardrail while
    travelling backwards. Two of the respondents young friends, fellow army
    privates, were thrown from the rear of the respondents vehicle and tragically
    died. Immediately prior to the accident, the respondent had boasted to his friends
    that his vehicle could achieve a speed of 240 k.p.h.

[2]

The respondent was sentenced to a conditional sentence of two
    years less a day on each count, to be served concurrently, and was also
    prohibited from driving for a period of five years.

[3]

We agree with the Crown's submission that, in the
    particular circumstances of this case, a conditional sentence failed to satisfy
    the sentencing principles of proportionality, denunciation and deterrence.

[4]

The circumstances of the offences indicate that, at a minimum,
    the respondent engaged in intentionally reckless behaviour. Further, the
    appellant had a prior record for driving with a blood alcohol level in excess
    of the legal limit as well as five prior speeding infractions. In addition, in
    preparation for the sentencing hearing, the respondent prepared material that
    patently misrepresented his hours of employment, apparently for the purpose of
    persuading the trial judge to give him a conditional sentence. At a minimum,
    this latter conduct should have militated against giving any mitigating effect
    to the respondent's personal circumstances. On the facts of this case, the only
    real mitigating factor was the respondent's sincere expression of remorse.

[5]

We recognize the high degree of deference owed to a
    sentencing judge. However, in this case, in our view, the sentencing judge
    erred in principle by failing to identify what factors, if any, led him to
    conclude that a conditional sentence could adequately address the sentencing
    factors of proportionality, denunciation and deterrence. Given the intentional
    nature of the respondent's behaviour, the respondent's prior record, the tragic
    consequences of this event, and the absence of any mitigating factors apart
    from remorse, a conditional sentence simply is not proportionate to respondent's
    level of moral blameworthiness; nor is a conditional sentence adequate to
    address the need for denunciation and deterrence. Simply put, the conditional sentence
    imposed is unfit.

[6]

Similarly, on the facts of this case, the five-year driving
    prohibition fails to adequately address the respondent's prior driving record,
    the need to protect the public and the need for specific deterrence.

[7]

In the result, leave to appeal sentence is granted, the
    conditional sentence is set aside and a sentence of imprisonment is imposed
    equivalent to the time remaining under the conditional sentence (101 days). 
    The driving prohibition is increased to seven years. The respondent shall surrender
    on or before February 29, 2012, failing which a warrant may issue.

Signed: Janet Simmons
    J.A.

Robert Armstrong
    J.A.

Edward Then RSJ
    (ad hoc)


