SENTENCE - REFUSAL AFTER HAVING CAUSED A COLLISION RESULTING IN DEATH

The offences of refusal after having caused a collision resulting in bodily harm or death, sections 255 (2.2) and (3.3), came into force in 2008.  Since then, courts have struggled to arrive at what appropriate sentences might be. A main factor is that the refusal did not "cause" the collision, unlike impaired operation "causing" death. Two cases may assist in setting precedents for these relatively new offences.   In R. v. Suter, 2016 ABCA 235, the Alberta Court of Appeal allowed the Crown appeal of a 4 month jail sentence and replaced it with a 26 month jail sentence. In R. v. Nahnybida, 2016 SKQB 245, the trial judge imposed a sentence of 40 months jail for the offence of dangerous driving causing death but also imposed a 40 month concurrent sentence for the refusal contrary to section 255(3.3), which arose out of the same incident. A quote from that case provides guidance:

The inclusion of the offence in the Criminal Code of refusal to provide a breath sample following an accident that has caused death is meant to remove the incentive for a person to refuse to provide a breath sample in order to deprive the police, the court, and the public from the best available evidence to answer the question as to what the blood alcohol content of that person was. Any sentence imposed must recognize this purpose.