In this case, the Court of Appeal upheld the decision of a sentencing judge to reject a joint submission for a two year sentence for an accused convicted of impaired driving causing death and upheld the sentence imposed of two years and eight months; noting, however, that a sentence of no less than four years ought to have been imposed: R v Gibson, 2015 ABCA 41 (CanLII).
Gibson had pleaded guilty to impaired driving causing death and impaired driving causing bodily harm. Gibson was driving a large pick-up truck on a highway after visiting friends and consuming alcohol. The highway had one lane of travel in each direction. After he passed two semi tractor-trailers by pulling around them using the oncoming traffic lane, he did not return to his own lane of travel, but continued on the wrong side of the road for some distance. An oncoming vehicle took to the shoulder to avoid a serious collision, but was struck on the side by Gibson’s vehicle. A second oncoming vehicle was struck more severely and was forced into the ditch. The driver of that vehicle was injured. Gibson continued on in the wrong lane, finally striking an oncoming vehicle head-on, causing the death of the 17 year-old driver of that third oncoming vehicle. Gibson’s blood alcohol level was between 170 mg and 181 mg per 100 mL of blood at the time of these collisions.
Gibson was, at the time, 22 years old with no criminal record. He was employed and had completed post-secondary education in petroleum engineering. A joint submission was made for a two year jail sentence. The sentencing judge was concerned that this was outside of the appropriate range and invited further submissions. The sentencing judge understood that he should not interfere with a joint submission unless the sentence proposed was unfit or unreasonable (see R v Bullock, 2013 ABCA 44 (CanLII) at para 18). After hearing further, a two year and eight month sentence was imposed.
The Crown at the sentencing relied primarily on the Court of Appeal’s decision in R v Stimson, 2011 ABCA 59 (CanLII), submitting that Gibson’s case was largely equivalent. The Court of Appeal had said, in Stimson, that the appropriate sentencing range in that case was between two and four years of jail; however, the panel in Gibson disagreed that Gibson and Stimson had similar levels of culpability.
The Court noted:
- the gravity of the offence was higher than in Stimson; Stimson was momentarily inattentive and lost control, whereas Gibson drove in a dangerous manner for an extended period of time, having several opportunities to return to the proper lane of travel or take evasive action and failing to do so
- Stimson had taken over driving mid-trip at the request of the original driver; Gibson entered the vehicle with the intention to drive from the start, knowing he had consumed a substantial quantity of alcohol;
- Gibson clearly had a blood alcohol level more than twice the legal limit, which is recognized as a statutorily aggravating factor; Stimson may have had a similarly elevated blood alcohol level, but that finding was not specifically made in her case;
- Stimson was aboriginal and her sentence reflected, in part, consideration of her unique circumstances as an aboriginal offender; Gibson is not of aboriginal descent.
Accordingly, the Court concluded that the range of two to four years as set out in Stimson and referred to by counsel at the sentencing hearing was not the correct range to be applied in the circumstances of Gibson. The Court noted:
 A sentencing judge is not bound by an error made by counsel as to the applicable case law. An offender is entitled to receive, and a judge is obliged to impose, a sentence that is based on a correct understanding of the background circumstances and relevant law. For this reason, it is an error in principle for a sentencing judge to misapprehend or mis-state the range of sentence for a particular offence: R v Dyck, 2014 SKCA 93 (CanLII) at para 22; R v Simcoe (2002), 2002 CanLII 5352 (ON CA), 156 OAC 190 at para 13 (CA). Equally, counsel cannot, through a joint submission, bind the sentencing court or this Court to an incorrect statement or understanding of the law. Counsel may sincerely believe that there are ranges or sub-ranges indicated by a collation of cases they may have cobbled together. But it is for this Court to decide if that view correctly represents the state of sentencing. Moreover, a sentence is not necessarily proportionate simply because it falls within a range: Arcand, supra at para 124. And a sentence is not necessarily disproportionate because it falls outside a range providing it is otherwise in accordance with the principles and objectives of sentencing: R v Nasogaluak,2010 SCC 6 (CanLII),  1 SCR 206 at para 44.
Noting that recent cases from elsewhere in Canada had resulted in sentences of four and a half or five years of imprisonment in cases involving less severe driving patterns than that of Gibson, the Court concluded that a fit sentence for Gibson would have been no less than four years imprisonment. Because the Crown had not appealed the sentence of two years and eight months, the Court upheld that sentence, noting that this affirmation of the lower court’s sentence “does not reconfigure the range”.