Impaired driving has proven to be an intractable problem. Society's abhorrence of it is palpable. According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related. It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.
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 [para 15]; [emphasis added].
In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen).
Tobin had been out drinking with friends including the victim, Alex Zolpis. Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa. The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4]. He did drive however. He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it. Tobin then began doing donuts. Somehow his friend Zolpis fell out. He was caught under the truck and was killed.
Tobin pleaded guilty.
Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:
Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed.
Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others. Some are disappointed at the sentence imposed and feel it will not serve as a lesson. Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost". (See similar discontent expressed in comments on the CBC).
The discontent with the sentence is understandable perhaps. A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.
In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549. In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving.
More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121.
While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.
Kumm er is another example of this trend. In that case the Court of Appeal upheld a sentence of eight years. Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:
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.
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 appellant's 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 [paras 25-26]; [emphasis added].
The similarities with the Tobin case are notable. Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18]. Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17]. Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17]. Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving". Tobin too should have been acutely aware of the dangers of drinking and driving.
Despite these similarities and background the judge imposed a sentence of three years. In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].
If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.
DG Mack