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| John L. Hill |
Gruninger was travelling on Highway 3 at 8 p.m. in her 2007 Suzuki when she struck Yvette Renee Bakko’s 1993 Dodge flatbed truck that had pulled out in front of her from a side road. With a blood-alcohol concentration of 99 mg in 100 ml of blood, Bakko had turned onto the four-lane highway at night, straddled the yellow line and failed to accelerate to highway speed. A two-day trial before Judge Erin Olsen resulted in Bakko’s conviction and the imposition of a four-year term of imprisonment.
“Courtney Gruninger died when she was only 18 years old, a time of life when she was full of hopes and dreams, and her family was full of pride at her potential,” the sentencing judge said. She continued: “Her mom, dad and siblings miss her terribly, and they have suffered terrible pain at her unnecessary death. She sparkled in a special way as she grew up in their loving care. What a terrible and senseless loss her death is for her family and for our community.”
One can expect such concern when a death is involved in a motor vehicle collision. This is more so if the crash involves an impaired driver. Bakko appealed her sentence, and much of her appeal centred on the errors made by the driver who was killed. The Alberta Court of Appeal weighed the issues and determined this was not a case
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The Court of Appeal considered that Gruninger was primarily to blame for the collision. She was driving in the left lane at an excessive speed, 130 k/hr. No skid marks indicated an attempt to brake or evidence of evasive driving. A cellphone playing a video loop was found at the site in the Suzuki. The inference was that Gruninger’s attention had been distracted, and she did not foresee the possibility of an impact with the Dodge truck. The trial judge took judicial notice that the force of the collision could have activated the cellphone. Still, the Appeal Court found it improper to take judicial notice of a fact not widely accepted in the community being taken into evidence.
Although these factors had no bearing on Bakko’s guilt for causing death while driving while impaired, they did factor in assessing Bakko’s moral culpability and blameworthiness. The court allowed Bakko’s counsel to amend the Notice of Appeal to permit an appeal of sentence.
What is the appropriate sentence when the victim’s conduct contributed substantially to the outcome? The trial judge accepted that when an impaired driver causes death to another motorist, deterrence and denunciation must focus on punishing the impaired driver (R. v. Rhyason, 2007 ABCA 119). Case law suggests sentences ranging from two to three years up to eight to 10 years could be imposed (R. v. Suter, 2018 SCC 34; R. v. Lacasse, 2015 SCC 64; and R. v. Langrelle, 2019 ABQB 702).
The appeal court held that the sentencing judge erred in failing to consider the deceased woman’s own conduct in mitigation of Bakko’s moral culpability. Yet the court maintained that deterrence and denunciation remained the primary sentencing principles.
The appeal court relied on the mitigating factors the trial judge had accepted: Bakko’s difficult childhood in which she and her family were abused by her alcoholic father. She started working at a young age to provide for herself and her brother. Bakko also suffered from numerous chronic health problems, including a thyroid condition that required medication, osteoarthritis, fibromyalgia, neuralgia and deteriorating discs in her spine. She was also diagnosed with anxiety after the collision, and she had flashbacks of the crash. She accepted responsibility for the collision.
Weighing the mitigating and aggravating factors, the reduction in sentence from incarceration in a federal penitentiary to incarceration in a provincial facility was warranted.
Sometimes, it is appropriate to blame the victim.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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