Applying Sentencing Principles in Dangerous Driving Cases: R v Bosco

Sentencing is both a science and an art. In R v Bosco, 2016 BCCA 55 [Bosco], the British Columbia Court of Appeal reviewed both the general guiding principles of sentencing and the desired impact of sentencing in dangerous driving charges. The appellant and the Crown agreed on these principles but disagreed on whether the sentencing judge followed them.

Facts

On January 14, 2012, while Mr. Bosco was driving eastbound in poor driving conditions, he began tailgating the car in front of him. The driver immediately in front of him responded by slamming on his brakes. Mr. Bosco did the same to avoid a collision, and as a result, fishtailed. Mr. Bosco veered into the westbound lane, passed the car immediately in front of him and then continued to pass several other cars. He collided with an oncoming car in the westbound lane; the other driver sustained significant and life-altering injuries.

At trial, Justice Hamilton sentenced Mr. Bosco to 60 days in jail (to be served intermittently), six months probation, and a two-year driving prohibition (R v Bosco, 2015 BCPC 0190, 59-60]. Justice Hamilton reduced the 60 days to 51, after crediting the nine days of pre-sentence detention.

Issues

The central issue in the appeal was whether the sentencing judge failed to give effect to the sentencing principles of proportionality, parity, and restraint.

Standard of Review for Sentencing

The trial judge is significantly better positioned to weigh the particulars of the case—the mitigating and aggravating factors. In recognition that the trial judge is better positioned to achieve a just sentence, the standard of review for sentencing is both narrow and deferential (R v Lacasse, 2015 SCC 64). In order to prove the sentence is unfit, the sentence would need to be found unreasonable. A finding of unreasonableness requires the sentencing judge to err in principle by employing an irrelevant factor, overlooking or overemphasizing a relevant factor, or imposing a sentence “in substantial and marked departure” from the range of sentences imposed for similar offences and similar offenders (R v M(CA), [1996] 1 SCR 500, 90-92).

The Trial Judge Followed the Sentencing Principles

Overview of Sentencing Principles

The Criminal Code, RSC 1985, c C-46 sets outs three principles of sentencing: proportionality, parity, and restraint. A sentencing judge has a duty to apply principles mandated by section 718(2) (R v Ipeelee, [2012] 1 SCR 433, para 51).

Proportionality is the guiding principle of sentencing. This principle is codified in section 718.1, which reads, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The purpose of the proportionality principle is to tie the sentence to the moral blameworthiness of the individual’s actions and the harm that the individual caused. The aim of section 718.1 is to prevent sentences that are disproportionate to conviction and the particulars of the case.

The second principle of sentencing that a judge must consider is parity. Parity is codified in section 718.2(b), which states, “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” A key aim of this principle is to achieve consistency and predictability in sentencing.

The third principle of sentencing that a judge is required to consider at sentencing is restraint. Restraint is codified in sections 718.2(d)-(e). The principle of restraint encourages caution and moderation in imposing custodial sentences. The dual purposes of restraint are to reduce high incarceration rates and unduly harsh sentences (R v Proulx, [2000] 1 SCR 61, 16-17).

Justice Hamilton was Guided by the Sentencing Principles

Justice Dickson, writing for a unanimous Court of Appeal, held that Justice Hamilton adhered to the sentencing principles. The goals of sentencing for dangerous driving are deterrence and denunciation (R v Rawn, 2012 ONCA 487, 33). In arriving at a proportional sentence, Justice Hamilton weighed the aggravating and mitigating factors.

Justice Hamilton considered several aggravating factors in assessing the moral blameworthiness of Mr. Bosco’s actions. First, he drove for more than forty seconds into oncoming traffic (Bosco, 5). He did so while driving up a blind hill, despite the double solid line, the time of night, and the icy conditions. Second, Justice Hamilton concluded that Mr. Bosco had the opportunity to merge back into his lane after he fishtailed. Third, Mr. Bosco has a history of driving offences. Between August 2002 and December 2011, Mr. Bosco had six speeding tickets and five unsafe driving violations, including one for driving without the due care and attention (Bosco, 12).

There were several mitigating factors that Justice Hamilton considered. First, Mr. Bosco did not have a criminal record. Second, Mr. Bosco, as a coach of a soccer academy for children and adults, would likely lose his job if he had a criminal record. Third, he had strong community ties, evidenced by the character references he provided to the court. Finally, there was a pending civil action, in which damages had not been quantified.

The principle of parity was achieved as Justice Hamilton had considered nine similar cases of dangerous driving or impaired driving. Justice Hamilton was also guided by restraint has he limited the custodial period to the “lightest term reasonable given the circumstances and broad sentencing range” (Bosco, 48).

Appeal on Credit

Mr. Bosco’s appeal was successful on the narrow issue of credit. Mr. Bosco spent two weekdays in custody after he was arrested for not surrendering to serve his intermittent sentence. These two days had not counted to his credit as the sentence addressed weekends. The Crown conceded this point.

Conclusion

Justice Hamilton’s sentence was fit. Mr. Bosco knowingly engaged in dangerous driving during poor driving conditions. As a result of his actions, another driver suffered life-altering injuries. The sentence was not unduly harsh but within the range of available sentencing options. In Bosco the trial judge effectively balanced Mr. Bosco’s good character against his decision to engage in reckless behavior. This was more than a case of in inattentiveness, Justice Hamilton’s sentence struck the balance between deterrence and denunciation of dangerous driving against proportionality, parity, and restraint.