





CITATION:
R. v.
Kummer
, 2011 ONCA 39





DATE: 20110118



DOCKET: C52044



COURT OF APPEAL FOR ONTARIO



MacPherson, Simmons and Gillese JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Andrew Larry
Kummer



Appellant



Brian H. Greenspan and Seth P. Weinstein, for the appellant



Joanne Stuart, for the respondent



Heard: December 14, 2010



On appeal from the sentence imposed on April 30, 2010 by
          Justice J.S.
Skowronski
of the Ontario Court of
          Justice



MacPherson J.A.:




A.

OVERVIEW

[1]

In March of 2009, the appellant, driving with a blood
    alcohol concentration more than twice the legal limit, caused an accident
    resulting in three deaths. He pled guilty to ten charges arising from this
    incident and was sentenced to eight years imprisonment. He appeals from sentence.

B.

FACTS

(1)

The parties and the accident

[2]

On the evening of Friday, March 13, 2009, the appellant
    was driving his pick-up truck in London, Ontario with two passengers, his
    friends David Marshall and Randy
Psaila
. The
    appellant had been drinking prior to driving and continued to do so while on
    the road. His blood alcohol level would be found to be over twice the legal
    limit, indicating that he had consumed the equivalent of 15 to 20 beers. The
    appellant was driving at an extreme speed, 122 km/h where the posted speed
    limit was 70 km/h.

[3]

Jason Berube was on the road at the same time. He was
    returning from a London Knights hockey game with his son, Mason, and family
    friend David
Tinus
, both 12 years old. They had left
    the game early to beat the traffic.

[4]

Mr. Berube and the appellant approached the same
    intersection at the same time. Mr. Berube had the right of way; the appellant
    faced a stop sign. As Mr. Berube entered the intersection, it became clear that
    the appellants vehicle was not going to stop. He slammed on the brakes. The
    appellant did the same. Nevertheless, the appellants vehicle struck the
    passenger side of Mr.
Berubes
pick-up truck travelling,
    at the time of the collision, at a speed of 83 km/h. Both vehicles came to rest
    in the roadside ditch. Both almost immediately caught fire.

[5]

Mr.
Berube,
initially trapped
    in the front seat and now suffering from two collapsed lungs, a shattered hip,
    a broken femur, several cracked and broken ribs and a multitude of cuts,
    scrapes and bruises, eventually managed to pull himself free from the wreckage.
    Despite his injuries, he immediately began to try to rescue the two boys still
    trapped in the burning truck before being pulled from the wreckage by two
    civilian on-lookers.

[6]

In his victim impact statement, Mr. Berube remembered
    struggling against his rescuers as they dragged him away from the burning truck
    and the two boys still trapped inside. He described at one point breaking free
    of their grasp and attempting to return to his vehicle, only to find himself
    again being pulled away. Mr. Berube recalled watching the truck explode and
    described the vision of his 12-year-old son Mason engulfed in flames as his
    last memory of his son.

[7]

The appellant and one of his passengers, Randy
Psaila
, also managed to survive the collision. His other
    passenger, 26-year-old David Marshall, succumbed to the fire along with Mason
    Berube and David
Tinus
.

(2)

The Sentence

[8]

The appellant pled guilty to ten charges: three counts
    of impaired driving causing death contrary to s.255(3) of the
Criminal Code
, three counts of dangerous
    driving causing death  contrary to
    s.249(4), two counts of impaired driving causing bodily harm contrary to
    s.255(2), and two counts of dangerous driving causing bodily harm contrary to
    s.249(3).

[9]

The sentencing hearing was marked by victim impact
    statements from Mr. Berube and the family and friends of the three young people
    killed in the collision. These statements offered some insight into the
    enormity of the tragedy caused by the appellant. They described how three
    families had been left devastated by the loss of some of their youngest members,
    how relatives and friends continue to struggle to come to terms with the deaths
    of these young people, and how a father who could not stop questioning his own
    role in these events, continued, more than a year after the collision, to
    return to the intersection where he had last seen his son to reflect on what
    had been lost.

[10]

The sentencing
    judge was also presented with 22 letters written in support of the appellant.
    These letters described the impact of these events on the
Kummer
family and explain that these actions were entirely out of character for the
    appellant, whom they described as kind, caring and generous.

[11]

Balancing these competing factors was an important part
    of the challenge facing the sentencing judge in arriving at an appropriate
    sentence. In detailed reasons, he identified the extent of the devastation as
    a crucial aggravating factor, alongside the appellants level of intoxication,
    the speed at which he was driving, and his driving record. At the same time, he
    cited the appellants loving family and network of supportive friends and his
    good character as mitigating factors, in addition to his guilty plea, his age
    and his lack of a criminal record.

[12]

Turning to the question of proportionality as directed
    in
R. v. Priest
(1996), 30 O.R. (3d)
    538 (C.A.), the sentencing judge concluded that this was an extremely serious
    offence, that the appellants culpability was high, and that the harm
    resulting, as evidenced by the victim impact statements, was of the highest
    order. After citing the long-recognized importance of deterrence in impaired
    driving cases, the sentencing judge imposed eight-year concurrent sentences for
    each of the dangerous and impaired driving causing death offences and four-year
    concurrent sentences for each of the dangerous and impaired driving causing
    bodily harm offences, along with a 12-year driving prohibition.

C.

ISSUE

[13]

The appellant submits that the sentence imposed is
    outside the range established by this court for these offences for first
    offenders and that the sentencing judge overemphasized the harm caused by the
    offences in arriving at an eight-year sentence.

D.

ANALYSIS

[14]

Sentencing decisions are entitled to considerable
    deference: see
R. v. Shropshire
, [1995]
    4 S.C.R. 227 at
para
. 46, and
R. v. M
.(
C.A.
), [1996] 1 S.C.R. 500 at
paras
. 90-91.
The
justification
    for this deferential standard of review was recently explained by Doherty J.A.
    in
R. v.
Ramage
(2010), 265 O.A.C. 158 (C.A.), at
paras
. 70-72:

Appellate deference to the trial judges sentencing
    decision makes good sense. Sentencing is a fact-specific exercise of judicial
    discretion. It is anything but an exact science. In the vast majority of cases,
    there is no single sentence that is clearly preferable to all others. Instead,
    there is a range of reasonable options from which the trial judge must make his
    or her selection. That selection is driven by the judges evaluation of the
    sentence that best reflects his or her assessment of the combined effect of the
    many variables inevitably at play when imposing a sentence. Absent the
    discipline of deference, sentence appeals would invite the appellate court to
    repeat the same exercise performed by the trial judge, with no realistic
    prospect that the appellate court would arrive at a more appropriate sentence.
    Appellate repetition of the exercise of judicial discretion by the trial judge,
    without any reason to think that the second effort will improve upon the
    results of the first, is a misuse of judicial resources. The exercise also
    delays the final resolution of the criminal process, without any countervailing
    benefit to the process.

A deferential standard of review on sentence
    appeals also recognizes that a trial judge has an advantage over the appellate
    court when it comes to balancing the competing interests at play in sentencing.
    The trial judge gains an appreciation of the relevant events and an insight
    into the participants in those events  particularly the accused  that cannot
    be revealed by appellate review of a transcript....

Deference is justified for a third reason. The
    sentencing judge represents and speaks for the community that has suffered the
    consequences of the crime. He or she is much better placed to determine the
    sentence needed to adequately protect the community than is an appellate court
    sitting at a distant place often years removed from the relevant events.

[15]

As the dangers of impaired driving have become increasingly
    evident and as this problem has continued to demonstrate its intractability,
    the sentences imposed where impaired driving results in death have increased. Last
    year, this court upheld sentences of four and five years for such offences in
R. v.
Ramage
and
R. v.
Junkert
,
    2010 ONCA 549.

[16]

In
Ramage
, the appellant, who had a blood alcohol concentration
    of between .229 and .274, drove across a busy, four-lane road into oncoming
    traffic. He struck one car, in which no one was hurt, and then collided with
    another. The appellants passenger was killed and the driver of the other
    vehicle was injured. The appellant in
Ramage
, a first-time offender, was described by the
    sentencing judge as an outstanding member of the community who experienced
    real and deep remorse for his crime. He was convicted of impaired driving
    causing death, impaired driving causing bodily harm, dangerous driving causing
    death and dangerous driving causing bodily harm and sentenced to four years
    imprisonment.

[17]

The appellant in
Junkert
, while driving at least
    90 km/h where the posted speed limit was 50 km/h, lost control of his vehicle
    and drove on to the sidewalk where he struck and killed a jogger. At the time
    of the accident, the appellants blood alcohol level was between .130 and .170.
    The appellant in
Junkert
was also a first-time offender.

[18]

The sentence imposed on the appellant is higher than
    those levied in
Ramage

and

Junkert
. For the appellant, this difference
    provides the tipping point in his argument. The appellant candidly and fairly
    acknowledges that the sentencing judge was aware of and considered the general principles
    of sentencing, fully addressed the relevant aggravating and mitigating factors,
    and engaged in the proportionality analysis mandated by
Priest
. The appellants submission, summarized crisply near the end
    of his oral argument, is the number is too high... an eight-year sentence here
    is outside the four to five-year range in
Ramage

and
Junkert
.

[19]

I do not accept this submission.
Ramage

and
Junkert
do not and cannot cap the sentences available for this kind of offence. This is
    so for three reasons.

[20]

First, imposing such a cap would contradict the
Criminal Code
and defy the will of
    Parliament. The maximum sentence for the offence of impaired driving causing
    death is life imprisonment. It must remain within the realm of possibility that
    a life sentence could be imposed for this crime. Absent a determination that
    the maximum penalty is unconstitutional, this court is not entitled to lower
    the maximum penalty any more than it is entitled to raise it.

[21]

Second, in
Junkert
itself this court cautioned against thinking
    formulaically about sentence ranges in drinking and driving cases involving
    death. As expressed by OConnor A.C.J.O. at
para
. 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. (4
th
) 220, 49
    W.C.B. (2d) 347 (Ont. C.A.), in dismissing a Crown appeal from a sentence for
    two counts of impaired driving causing bodily harm, this court said:

In
R. v. L
.(
J.)
[(2000), 147 C.C.C. (3d) 2199 (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.

[22]

Third, there is precedent for the imposition of
    sentences more severe than those found in
Ramage

and
Junkert
in impaired driving causing death cases. In
R.
    v. Wood
(2005), 197 O.A.C. 43 (C.A.), the appellant, who had an extensive
    criminal record, was sentenced to nine years imprisonment after killing three
    people and injuring one while driving without a license with a blood alcohol
    level nearly twice the legal limit. In
R.
    v.
Mascarenhas
(2002), 60 O.R. (3d) 465 (C.A.), a
    nine-year sentence was substituted by this court for one of twelve years. The
    appellant in that case struck and killed two pedestrians while driving with a
    blood alcohol level between .339 and .353. The appellant had three previous
    impaired driving convictions, and at the time of the offence was on bail for a
    drinking and driving offence, had a suspended license, and was on a
    recognizance that prohibited him from drinking and driving.

[23]

There is good reason, in this case, to move beyond the
    sentences imposed and affirmed on appeal in
Ramage

and
Junkert
.
    First and foremost, while the harm caused in each of these cases was
    significant, the results of the appellants actions here were particularly
    catastrophic. The appellants in
Ramage

and
Junkert
each
    killed one person.

Here, three young
    lives were lost in the most horrifying of circumstances. The impact of this
    tragedy on three families and, notably, the physical and emotional toll it has
    taken on Mr. Berube, must be recognized. The appellant must be held accountable
    for the consequences of his actions.

[24]

This is not to suggest that the appellants character
    and background are irrelevant, even in the face of such monumental tragedy. The
    appellants good character was appropriately considered a mitigating factor by
    the sentencing judge. The fact that he does not have the kind of record seen in
Wood
or
Mascarenhas
distinguishes this
    case from those and does call for a reduced sentence.

[25]

However, the appellants circumstances are also
    different from those seen in
Ramage

and
Junkert
. The
    appellant did not have a criminal record and he cannot be treated as having
    one. His driving record, however, is significant. In October of 2007, the
    appellant was convicted of careless driving and failing to report an accident
    in relation to an incident in which, after consuming three drinks and allergy
    medication, he drove onto the runway at the London airport and jumped approximately
    60 metres through airport antennas. He then left his car, walked through the
    airport terminal, and took a cab home.  The
    incident caused $127, 000 in damage to the vehicle and the airport.

[26]

The 2007 incident should have served as a wake-up
    call to the appellant. It should have impressed upon him the danger he posed
    to himself and others when driving in an altered state. Clearly it did not.
    Following the 2007 incident, the appellants parents spoke with him about the
    dangers of drinking and driving. This also obviously had little effect on him.
    The appellant received one final warning just
minutes
before the fatal crash. His friend and passenger, Randy
Psaila
,
    warned him to slow down. Again, tragically, this warning had no impact on the
    appellant. While it would be difficult to believe that any person in Canada
    could be ignorant of the dangers of drinking and driving, the appellant had
    particular reason to be aware of the risk he posed in doing so. His decision to
    disregard that risk is an important factor that can and should be considered in
    determining an appropriate sentence.

[27]

While, again, there are important distinctions between
    the appellant and the offender in
R. v.
    Wood
, the aggravating factors listed in
para
. 25 of
Wood
reveal a higher degree of
    similarity between the two cases than may at first be apparent:

This was a particularly serious example of criminal
    negligence. As indicated, the appellants ability to drive was impaired and he
    had a high blood alcohol level. He ignored the advice of his friend not to
    drive. He drove without a licence the wrong way on a high speed 400 series
    highway. He ignored the attempts of other motorists to warn him. The appellant
    had a serious criminal record, albeit not for driving offences, that includes
    prior penitentiary sentences and convictions for crimes of violence. He killed
    three people and caused serious and permanent injuries to another. His conduct
    has devastated the families of the victims and the survivor. A sentence of nine
    years was appropriate.

[28]

Here, as in
Wood
,
    the appellant had a very high blood alcohol level. As in
Wood
, he ignored the advice of his friend to slow down. While the
    appellant did have a valid licence, he also drove in an extremely reckless
    manner, reaching speeds of 52 km/h over the posted speed limit. The appellant
    did not have a criminal record, but he did have a highly relevant driving
    record which, coupled with his parents warnings, should have left him very
    familiar with the risk he posed to himself and others when driving under the
    influence of alcohol. Finally, as in
Wood
,
    the appellant killed three people and seriously injured another, leaving three
    families irreparably damaged. Moreover, as I have said, in this case three
    young lives were lost in the most horrifying of circumstances and the sentence
    imposed must hold the appellant accountable for the consequences of his actions.

[29]

In the end, the sentence imposed by the sentencing
    judge was higher than those imposed in
Ramage
and
Junkert
but lower than the sentences in
Mascarenhas

and
Wood
. In the context
    of comprehensive reasons demonstrating full consideration of the general principles
    of sentencing, the relevant aggravating and mitigating circumstances, and the
    proportionality analysis, I cannot see any error in principle in those reasons.
    Nor is the eight-year sentence manifestly unfit.

E.

DISPOSITION

[30]

I would grant leave to appeal the sentence and would
    dismiss the appeal from sentence.

RELEASED:  JAN 18 2011
    (JCM)

J. C. MacPherson J.A.

I agree. J. M. Simmons J.A.

I agree. E. E. Gillese J.A.


