



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bulland, 2020 ONCA 318

DATE: 20200528

DOCKET: C66872

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kunal Bulland

Appellant

Jessica Zita, for the appellant

Christine Tier, the respondent

Heard: In writing

On appeal from the sentence imposed by
    Justice Faieta of the Superior Court of Justice on July 2, 2019, reported at
    2019 ONSC 4220.

REASONS FOR DECISION

[1]

The appellant was convicted of impaired driving
    causing bodily harm after a trial before a judge alone. He was sentenced to 39
    months in jail. The appellant initially appealed conviction and sentence, but
    has abandoned his conviction appeal.

[2]

The facts surrounding the accident giving rise
    to the charge are fully and carefully set out in the trial judges reasons for
    conviction and sentence. We need not repeat them. It is important, however, to
    acknowledge that the person hit by the appellant suffered catastrophic
    permanent injuries. He will never be able to look after himself, or work again.

[3]

At trial, Crown counsel asked for a sentence of
    2 years, less a day, to be followed by probation for 3 years. The appellant
    asked for an intermittent sentence of 60 to 90 days.

[4]

During the Crowns submissions, the trial judge
    questioned whether a penitentiary sentence might not be appropriate. The Crown
    acknowledged a low penitentiary sentence was within the range of sentencing,
    but maintained the position that the appropriate sentence was one of 2 years,
    less a day, to be followed by 3 years probation.

[5]

The trial judge did not suggest to defence
    counsel during her submissions he was considering jumping the Crowns request
    for a jail sentence of 2 years, less a day.

[6]

The trial judge imposed a sentence of 39 months,
    15 months longer than the sentence suggested by the Crown. The trial judge
    stressed the victims catastrophic injuries. He also referred to the
    appellants involvement years earlier in a drinking and driving incident that
    resulted in a conviction for careless driving. The appellant had promised the
    judge that he would not drink and drive again. The trial judge also noted the
    appellant had not taken the opportunity he had to avoid the crash. Finally, the
    trial judge referred to a prior single conviction for an unrelated assault. The
    trial judge offered no explanation for imposing a sentence well in excess of
    the sentence requested by the Crown.

[7]

Crown counsel on appeal acknowledges, correctly
    in our view, the trial judge should have put defence counsel on notice he was
    contemplating imposing a significantly longer sentence than the Crown had
    requested. The trial judge also should have indicated in his reasons why he was
    departing so significantly from the position taken by the Crown: see
R. v.
    Grant
, 2016 ONCA 639, at paras. 164-65.

[8]

The procedural errors described above are properly
    addressed by this court determining and imposing a fit sentence, based on the
    submissions made at trial and in this court. The Crown maintains the position
    it took at trial. The sentence should be 2 years, less a day, followed by 3
    years probation. The defence asks this court to reduce the sentence, but asks
    that the appellant be allowed to remain in the penitentiary where he is
    apparently benefitting from programming. Interestingly, the appellant does not
    ask this court to impose a penitentiary sentence of 2 years, but instead asks
    the court to impose a sentence of 2 years, plus 1 day. Probation is available
    on a two-year sentence, but not on any sentence over two years.

[9]

A penitentiary sentence somewhat in excess of
    two years would have fallen within the range of appropriate sentences. However,
    having regard to the carefully considered position of the Crown taken at trial
    and maintained on appeal, we think a sentence of two years is the appropriate
    sentence. We say two years, rather than two years, less a day to accommodate
    the appellants preference to remain in the penitentiary for the rest of his
    sentence.

[10]

We also agree with the Crown that a three-year
    probation term is an essential component of an appropriate sentence in the
    circumstances of this case. The added three-year supervisory period afforded by
    the probation term is fully warranted here.

[11]

The appeal is allowed, the sentence is varied to
    two years, to be followed by three years probation on the following terms:

·

keep the peace and be of good behaviour;

·

report within two working days of release from
    custody and thereafter as directed by your probation officer;

·

do not occupy the drivers seat of a motor
    vehicle;

·

do not own a motor vehicle in Canada;

·

attend all counselling, specifically for alcohol
    abuse, as your probation officer shall direct and sign any necessary release to
    permit your attendance and compliance to be monitored by your probation
    officer;

·

attend and complete the Missing You program at
    a time and place to be arranged by your probation officer; and

·

no contact, directly or indirectly with Ian
    Godi-Chevrier or Bernice Chevrier, except through legal counsel.

[12]

The DNA order made by the trial judge and the five-year
    driving prohibition are not challenged and remain in effect.

Doherty
    J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


