



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bush, 2012 ONCA
    743

DATE: 20121105

DOCKET: C52384

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Bush

Appellant

Gord Cudmore, for the appellant

Matthew Asma, for the respondent

Heard: October 23, 2012

On appeal from the sentence imposed on June 25, 2010 by
    Justice Joseph M.W. Donohue of the Superior Court of Justice, sitting without a
    jury.

By the Court:

[1]

On the afternoon of June 21, 2009, the appellant, with three friends in
    his car, set off on a drunken high speed crop tour of rural Lambton County. For
    more than an hour, this reckless escapade continued, with the appellant reaching
    speeds of 170 km/hr on back roads, repeatedly endangering pedestrians and other
    drivers, while he and his passengers continued to drink and consume Percocet
    pills. At one point, he sped off at over 110 km/hr, with one of his passengers,
    Roland Bruno, clinging to the hood of the car, so called hood surfing. After
    running the car into a ditch, the appellant managed to get it back on the road
    and, despite his passengers request that he slow down, continued his
    outrageous driving.

[2]

It all ended tragically when the appellant drove off the road and his
    car landed upside down in a stream. The appellant promptly exited, leaving his
    passengers behind. When he returned several minutes later Mr. Bruno, who had
    passed out from alcohol consumption, was still in the car with his head underwater.
    A second passenger was trapped in the back seat of the car with his head in an
    air pocket. The appellant tried to pressure the others into agreeing to a
    fabricated version of events to tell police and refused to do anything to help those
    still in the car until they all agreed on what story to tell the police. The
    appellant also proceeded to try to dispose of alcohol and drugs that had been
    in his car.

[3]

One of the passengers finally decided to go for help. More than 20
    minutes after the crash, when the police arrived, the appellant denied being
    the driver or knowing any of the passengers. Mr. Bruno was finally pulled from
    the car by a passersby, but by that time he was dead.

[4]

The appellants blood alcohol concentration at the time of the accident
    was between 273 and 371 mg/100 mL. He was on bail from an earlier charge of
    impaired driving. He had not had a licence to drive since 1985 and only ten
    days earlier had been convicted of driving while suspended, his eighth
    conviction for that offence.

[5]

The appellant pleaded guilty to criminal negligence causing death,
    impaired driving causing death, driving while disqualified and breach of an
    undertaking to abstain from consumption of alcohol. The trial judge imposed a
    global sentence of 12 years in prison. After a credit of two years for
    pre-trial custody, he was left with ten years to serve.

[6]

The appellant appeals his sentence. His argument is that it is outside
    the range of sentences imposed for this offence and hence unfit. At trial, the
    Crown sought a global sentence of ten years. In this court, the Crown supported
    the sentence imposed, but fairly acknowledged that it is higher than any
    sentence previously approved by this court for fatal drinking and driving
    offences.

[7]

After argument, the court announced that the appeal was dismissed with
    reasons to follow explaining why. These are those reasons.

[8]

We begin by reiterating what this court said in
R. v. Ramage
,
2010 ONCA 488. Appellate deference to a
    trial judges sentencing decision is an appropriate reflection of the trial
    judges uniquely placed position in balancing the various interests at play in
    the fact-based act of judicial discretion that sentencing is. The sentencing
    judge represents and speaks for the community that suffers the consequences of
    the crime in a way this court does not. He or she must chose from the range of
    reasonable options, a sentence that best fits the offender and the offence, and
    if this is done, there would be little point in this court repeating the
    exercise. For these reasons, the sentence chosen attracts deference in this
    court.

[9]

Second, we reaffirm what this court said in
R. v. Junkert
, 2010
    ONCA 549, at paras. 40-41:

[
40
]    I begin by noting that courts should
    be cautious in rigidly applying a range of sentences in cases such as this,
    involving impaired driving causing death.  In
R. v.

Heaslip

(2001), 10 M.V.R. (4th) 220 (Ont. C.A.), in
    dismissing a Crown appeal from a sentence for two counts of impaired driving
    causing death and one count of impaired driving causing bodily harm, this court
    said:

In
R v. L. (J.)
[(2000), 147 C.C.C. (3d) 299 (Ont.
    C.A.)], this Court also recognized that cases involving drinking and driving
    did not demonstrate a particular range of sentencing but rather that the
    sentences were driven by the almost infinite variety of circumstances in which
    this offence can be committed.

[
41
]

Clearly,
    sentences imposed by courts in earlier decisions provide guidance as to an
    appropriate sentence.  However, appellate interference may only be
    justified if the sentence imposed at trial is demonstrably unfit.

[10]

Finally,
    we return to the facts of this case that make the appellants conduct so
    egregious. As outlined above, his conduct leading up to the crash was, as
    appropriately described by the trial judge, outrageous. It endangered the
    community. It was fuelled by excessive overconsumption of drugs and alcohol.
    His conduct after the crash was equally troubling and callous in attempting to
    plot a fabricated story for police and in leaving Mr. Bruno to die. His driving
    history confirms a pattern into which these tragic events seem all too easily
    to fit.

[11]

Although
    it would have been preferable for the trial judge to indicate to counsel he was
    considering a sentence above that proposed by the Crown before he did so, these
    facts demonstrate why societys concern about drunk and reckless driving
    causing death continues to grow. In all the circumstances, while the sentence
    was undoubtedly high, we cannot find it unfit.

[12]

The
    appeal is therefore dismissed.

Released: November 5, 2012 (S.T.G.)

S.T. Goudge J.A.

Paul Rouleau J.A.

David Watt J.A.


