The absence of evidence, attributable to the accused’s refusal to blow, should not be a mitigating factor for sentencing
By: Murray D. Segal
R. v. Kang, 2015 SKCA 98, 2015 CarswellSask 515 (Sask. C.A.)
2. — Impaired causing death; Impaired causing bodily harm (2 counts); Fail to remain knowing bodily harm committed; Refusal to provide sample; Sentencing; Crown appeal after 30 month sentence; Sentence increased to 4 1/2 years; Errors made regarding nature of driving and impairment; Sentence increased 7 years after trial; Criminal Code, ss. 255(2), (3), 252(1.2), 254(5).
R. v. Kang, 2015 SKCA 98, 2015 CarswellSask 515 (Sask. C.A.), varying 2014 SKQB 132, 2014 CarswellSask 300 (Sask. Q.B.): The Crown sought leave from sentences totalling 30 months after a trial. The respondent was convicted of impaired causing death, two counts of impaired causing bodily harm, failing to remain knowing bodily harm had been caused and refusal to provide a breath sample. He received 3 months consecutive on the fail to remain and a 27 month sentence for impaired causing death. The accident occurred in 2007. He had been drinking and consuming marijuana while driving through city streets at speeds of 105 kmh in a 70 kmh zone with three passengers, the victims. He swerved to miss a truck at a red light, lost control and crashed. He reported the car had been stolen and crashed. He told the 911 operator that he fled the thieves. The survivors suffered lasting head injuries.
The accused was 18 years old at the time of the offence and 25 years old at sentencing. He had no criminal record but had a bad highway traffic record. He was now remorseful.
The sentencing judge committed two errors in principle. She found no evidence that he was very impaired and listed the absence of that as a mitigating factor. At most it was neutral as he had refused to provide a sample. The sentencing judge also noted that he did not flee from the scene and called 911 within 7 minutes of the accident. That is still an offence — a serious one, and not a mitigating factor. In addition, what he reported to the 911 operator were lies. Reviewing other cases caused the sentence to be increased to 4 1/2 years.