The B.C. Court of Appeal has overturned the one-day jail sentence for an impaired driver who killed a motorcyclist on the Trans-Canada Highway on Canada Day 2011.
On Tuesday, the appeal court set aside Tracy Dawn Smith’s one-day sentence and imposed a new sentence of two years less a day, followed by three years of probation.
Smith, 37, pleaded guilty last year to impaired driving causing the death of Jana Mahenthiran. Mahenthiran, a 47-year-old information technologist for Maximus Canada, died when Smith’s car crossed the centre line of the highway and hit him head-on. According to police and witnesses, Smith was in a rage, intoxicated and hostile. She blamed the crash on Mahenthiran.
In December, Victoria provincial court Judge Robert Higinbotham sentenced Smith to one day in jail, followed by three years of probation. Higinbotham ordered Smith to continue treatment with the VisionQuest Recovery Society at Harte House in Surrey, where she has been under house arrest since the crash.
In his decision, Higinbotham said sentencing Smith to prison would render her progress meaningless. He believed society was best protected if Smith continued as a ward of VisionQuest, not a prison inmate.
The Crown appealed, calling the sentence unfit, and asked the appeal court to impose a longer jail sentence. Higinbotham had erred by putting too much emphasis on Smith’s rehabilitation and recovery and not enough on the need to denounce the fact she was driving while impaired by drugs and alcohol, prosecutor Mary Ainslie told the appeal court.
After the decision was released on Tuesday, Smith’s defence lawyer, Mark Berry, said Smith would leave VisionQuest, turn herself in and start serving her sentence.
“She’s been quite concerned and quite stressed out,” Berry said. “I knew that this was a realistic possibility, so I certainly tried my best to prepare her for that responsibility.”
In its 22-page decision, the appeal court found Higinbotham had erred by not putting enough emphasis on the principle of deterrence. It found Higinbotham had also erred when he concluded Smith’s moral blameworthiness was no greater than an impaired driver who avoids tragedy.
The appeal court noted that Higinbotham decided a conditional sentence of two years less a day was a fit sentence for Smith. However, in 2007, Parliament limited the ability of judges to impose a conditional sentence on personal-injury offences.
The three-member court of appeal was unanimous in its decision to impose a longer sentence.
Two judges – Justice Elizabeth Bennett and Justice Richard Low – agreed that the sentencing judge was attempting to find a sentence that would best serve to rehabilitate Smith.
“His view was that sending her to prison would undermine the progress she has made to date. Thus, as neither a conditional sentence nor a suspended sentence was available to him, his only option was a lengthy term of probation. In my view, the sentencing judge was not trying to perform an end-run around Parliament’s intentions,” wrote Bennett.
In his own separate reasons for judgment, Justice Edward Chiasson found Higinbotham’s emphasis on rehabilitation over denunciation contrary to Parliament’s intention.
“The judge’s task was to determine a fit sentence. He did that and then balked at Parliament’s elimination of a conditional sentence for this offence. This led the judge to craft a sentence that was not fit,” wrote Chiasson.
Berry said the fact that a conditional sentence was not available in these circumstances is a damning indictment of the rigidity and the harshness and the cruelty of the new provisions of the criminal code that the Harper government has enacted.
“Because the strong, strong theme throughout the judgment that I picked upon is that Parliament has constrained sentencing judges and they’ve taken some options away,” said Berry. “They’ve sent a clear message and the courts needs to respect that message... but that’s not to say that that message is necessarily the right one.”
