Court dismisses appeal of fatal crash convictions
By Delon Shurtz - Lethbridge Herald on March 14, 2024.
LETHBRIDGE HERALDdshurtz@lethbridgeherald.com The Court of Appeal has dismissed a southern Alberta woman’s appeal of her convictions for impaired driving causing death and dangerous driving causing death, stemming from a fatal car collision four years ago.Yvette Bakko was sentenced last March to four years in a federal penitentiary after she was found guilty of both charges following a two-day trial. She appealed her convictions, but in a memorandum of judgment released by the appeal court in January, the appeal was dismissed.
In her appeal Bakko said the trial judge erred in determining that the cause of the collision had been proven beyond a reasonable doubt. The judge also erred in law, Bakko claimed, by applying a civil negligence standard to the criminal offence of dangerous driving.
The appeal court acknowledged some errors made by the judge, but said they are not significant enough to overturn the convictions.
“The trial judge made some errors in her findings of fact, but they are not overriding errors, meaning that they do not affect the outcome,” the appeal court judges stated in their judgment.
On the evening of Jan. 6, 2020, Bakko drove onto Highway 3 from a side road east of Coaldale and was struck from behind by a vehicle driven by 18-year-old Courtney Engelina Gruninger. Bakko, who had a blood-alcohol concentration exceeding the legal limit, turned onto the four-lane highway at night, straddled the yellow line and failed to accelerate to highway speed.
“Sadly, alcohol-related driving offences remain the second-leading criminal cause of death in Canada,” Judge Erin Olsen said as she read her sentencing decision last March.
The appeal court judges noted that Bakko’s theory is that Gruninger may have been speeding, and if Bakko’s passenger’s evidence that he could see only lights in the right oncoming lane is correct, then Gruninger’s vehicle, a Suzuki, must have drifted into the left lane to the area of impact on the highway, possibly because of the driver’s inattention.
When first responders arrived, they found a cell phone on the passenger side floor of the Suzuki playing a video in a continuous loop on the screen of the phone, which appeared to be playing on SnapChat or a similar social media platform.
The Crown accepted that it was not able to disprove that at the time of the collision Gruninger was watching a video on her cell phone, and Bakko said it was reasonable to infer that the driver was watching the video and therefore distracted at the time of the collision. In closing submissions, Bakko’s counsel argued the court could infer that the Suzuki drifted from the right lane into the left lane and caused the collision.
An accident reconstruction expert concluded he could not determine whether Gruninger was distracted, but it was possible.
The Crown, however, suggests the “distraction scenario” is a legal red herring, and even if Gruninger was speeding, driving badly, or distracted by her cell phone, Bakko’s driving was a significant contributing cause of Gruninger’s death. The Crown also points to the trial judge’s finding that Bakko’s driving was dangerous and lasted for so long that it rendered a collision a near certainty
The appeal court concluded that even though the unique combination of circumstances in the case does not alter the determination of guilt, it may have a direct bearing on Bakko’s moral culpability or blameworthiness to be considered on the sentence imposed. The appeal judges granted Bakko the opportunity, if she chooses, to amend her Notice of Appeal and seek permission to appeal her sentence.
In addition to her four-year prison term, Bakko is also prohibited from driving for five years after she is released from custody, and she was ordered to submit a sample of her DNA for the National DNA Data Bank. Olsen also recommended that the correctional authorities make available to Bakko programs, counselling and treatment to address her adverse childhood experiences and other trauma, as well as medications to manage her chronic and painful medical conditions.” 3
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