R. v. Cunningham

R. v. Cunningham Collection Decisions of the Court of Appeal Date 1999-04-14 Docket numbers C28858 Judges Finlayson, George Duncan; Austin, Allan McNiece; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990416 DOCKET: C28858 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and BRIAN CUNNINGHAM (Appellant) BEFORE: FINLAYSON, AUSTIN and MOLDAVER JJ.A. COUNSEL: J. Randall Barrs, for the appellant Philip Downes, for the respondent HEARD: April 14, 1999 On appeal from the judgment of Glithero J., with a jury, dated December 5, 1997. ENDORSEMENT [1] The appellant submits that the failure of the jury to convict the appellant of driving his motor vehicle with a concentration of alcohol in his system of more than 80 milligrams of alcohol in a 100 millilitres of blood (over 80), meant that the jury must have accepted the appellant’s evidence that his consumption of alcohol was below the level of impairment. It is trite law that a jury can accept all or part of the evidence and there is evidence in the record to support a finding that the appellant had a concentration of alcohol in his body that was below that which would justify a conviction for “driving over 80” and yet sufficient to cause impairment. [2] The appellant further submits that there is no evidence that whatever impairment he suffered caused the accident. However, the standard for a causal connection is simply that it must be beyond the de minimus level. There was evidence that after seeing the lights of an on-coming vehicle, the appellant turned his face towards his passenger and talked to him. When he then turned his head and looked forward, the oncoming vehicle appeared to be in his lane. He then took evasive action that was inappropriate and, as it turned out, ineffective. [3] In these circumstances, it was open to the jury to find that there was a causal connection between the appellant’s impairment by alcohol and his initial inattention, followed by his failure to follow more effective evasive action. [4] As to sentence, this is an alcohol-related death. A custodial term is called for. However, we are of the view that in the circumstances of this case, eighteen months is not a fit sentence. The trial judge found, consistent with the verdict of the jury, that the appellant’s impairment was at the lower level and it is evident that the causal connection between impairment and the death of the passenger was not greatly over the de minimus requirement. In mitigation of sentence, the appellant had no driving record, the passenger who died was his best friend and he himself was badly injured. There were no other persons injured. Looking at this case on its own merits, we feel that the sentence should be nine months. [5] Accordingly, the appeal against conviction is dismissed, leave to appeal sentence is granted and the sentence is reduced from eighteen months to nine months. “G.D.Finlayson J.A.” “Austin J.A.” “M.J. Moldaver J.A.”