R. v. Drozdowski, 2014 ONCJ 264

Court File and Parties

Court File No.: Town of Oakville 109/12 Date: 2014-05-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — David Drozdowski

Before: Justice Stephen D. Brown

Heard on: March 26, 2014

Reasons for Sentence released on: May 27, 2014

Counsel:

• Mary Ward, for the Crown
• Bruce Daley, for the accused David Drozdowski

Reasons for Sentence

1: INTRODUCTION

1David Drozdowski pleaded guilty before me to three counts of impaired driving causing bodily harm contrary to s. 255(2) of the Criminal Code.

2The Crown proceeded by way of indictment. A preliminary hearing was conducted and during the course of the preliminary hearing the accused agreed to a committal to the Superior Court of Justice. At a later date he then re-elected trial before me and pleaded guilty to these charges.

2: CIRCUMSTANCES OF THE OFFENCE

3The offence date is September 13, 2011. On that date at 9:59 p.m. several cars were stopped or slowing to stop at the stoplight on the 9th line and Dundas Street in the Town of Oakville. The weather was clear and the roads were dry.

4Patricia Gonzalez, who testified before me at the preliminary hearing, was driving the first vehicle in the line of cars. As the light changed to green she was about to proceed when she was rear ended by the vehicle behind her. Behind her it appeared that there were approximately four vehicles that had been involved in the collision. The offender's vehicle had failed to stop or slow down significantly and ran into the back of another vehicle carrying Asma Riaz and Mahum Sheikh causing this chain reaction. Ms. Gonzalez suffered soft tissue injuries that persisted up until the time she testified at the preliminary hearing on December 10, 2012, and Justin Kuscanian, who also testified at the preliminary hearing, stated that he suffered neck pain that resolved in a couple of weeks.

5Mr. Drozdowski was subsequently arrested at the scene and later provided breath samples into an approved instrument. The blood alcohol readings in this matter were 188 milligrams of alcohol in 100 millilitres of blood and the second was 182 milligrams of alcohol in 100 millilitres of blood and, as such, are deemed to be an aggravating factor on sentencing pursuant to s. 255.1 of the Criminal Code.

6The most seriously injured people were the individuals named in the indictment that the accused pleaded guilty to. They were Asma Riaz, Sharda Aleem, and Mahum Sheikh.

7Although I did not get a victim impact statement from Sharda Aleem, she testified before me at the preliminary hearing and described her injuries. She described her neck, back and arm as being black and blue and she was required to be off work for about two months and then gradually returned over the next two months. She could not go to the hospital because she was breastfeeding, but subsequently saw her family doctor who prescribed her physiotherapy and Naproxen. It was unclear to me whether her injuries eventually resolved or whether she has lingering effects from the collision. Since the Crown has not provided this information to me, I will proceed with the sentencing assuming that the injuries have completely healed and there are no permanent effects from the collision regarding this victim.

8I have reviewed Mahum Sheik's victim impact statement filed as an exhibit in this proceeding. In that statement dated February 28, 2014 she says that she suffers from extreme anxiety when she is driving and has panic attacks during certain driving situations. She says that her body is constantly in pain, including her neck and shoulders, lower back, gluteus maximus, arms, hands and feet. She describes disturbed sleep patterns and nightmares about dying in a car accident. She also describes becoming less social and staying in her room often rather than socializing, and also a shortened attention span. She states that she was unable to resume work for one and one half months. She was prescribed Oxycontin, Naproxen, Celexa and other medications, and has had to engage in massage therapy, physiotherapy and purchase orthopaedic shoes. She describes this collision as the most traumatizing experience of her life.

9Asma Riaz was in the same vehicle as Ms. Sheik and suffered similar injuries. She broke her nose and had to have surgery for that and had a piece of glass that went into her eye and split her eyelid. She spent overnight in the hospital. She still says that her nose and jaw are somewhat crooked and she avoids smiling as it makes her self-conscious. She suffers from back, hip, neck, wrist, foot and jaw pain, and suffers from PTSD. She has been told that the eye injury puts her at greater risk of glaucoma and that it prevents her from wearing contact lenses. She states that she is more withdrawn than before and is constantly in pain, which puts her in a bad mood. She has lost most of the strength in her left wrist and hand and she relies on medication to get her through the day at work and to sleep at night. She was still taking physiotherapy as of the date of the statement, which was February 28, 2014.

3: CIRCUMSTANCES OF THE OFFENDER

10Mr. Daley filed a helpful sentencing brief on behalf of Mr. Drozdowski that is Exhibit 3 in these proceedings.

11I have also had the benefit of reading the presentence report filed as Exhibit 2.

12The offender is presently 26 years of age and would have been 23 years old at the time of the offences. He has no criminal record.

13He is the younger of two sons born to his parents. His mother is currently employed as a supply teacher. His mother worked as a full-time teacher until her children were born and then stayed at home to raise them before returning to work when they were both in school.

14His father owns an electrical contracting company where the offender is employed as a fifth-year apprentice electrician. By all accounts, he is a well liked, reliable and hardworking young man who is close to finishing his apprenticeship. It is expected that he and his brother will one day take over his father's business.

15The offender comes from a supportive and close family and is well liked and respected by his fellow employees and others in the community. The sentencing brief contains eleven letters of reference speaking to his good character in the community and his acceptance of responsibility for the harm that these offences have caused the victims and his family.

16At the age of 13 he was diagnosed with juvenile diabetes and ultimately had to be put on an insulin pump and has a catheter in his leg that the pump dispenses insulin to. This changed his life for some time as he was adjusting to this diagnosis and prevented him from engaging in sports that he enjoyed until his diabetes was well managed. He is very responsible with his diabetes management and follows a strict dietary regimen.

17His family has had several health concerns over the years. In 2008 his father was diagnosed with prostate cancer and in 2011 the cancer returned and he underwent radiation treatments. His paternal grandfather passed away in 2011 and his aunt was diagnosed with terminal cancer and passed away a few weeks before the offence. His mother was diagnosed with breast cancer last year and has undergone treatment. The offender and his brother have been very supportive and helpful to their parents during these ordeals.

18The offender progressed normally through high school and then took a two-year Business Administration course through Sheridan College. He is one credit short of having his diploma from this course. He has never presented as a disciplinary problem in school or otherwise and is a respectful and well liked young man by all who know him.

19He has no previous problems with drugs or alcohol, having never used drugs, and describes himself as a social drinker. He did see a psychologist, Dr. James Long, for an assessment after the offence and his report dated February 23, 2014 has been reviewed for this sentencing. Dr. Long suggests that he may be vulnerable to developing difficulties with the use of alcohol. He recognizes that the offender is concerned about his use of alcohol and the effect that it has on his diabetes and that this points to his motivation to be vigilant about the use of alcohol. He states that he is currently not addicted to alcohol and that he restricts himself to the consumption of beer in small quantities. However, alcohol use had been an important part of his social activities as it was with a fairly large group of college students of his age. Dr. Long suggests that further counselling may be helpful to Mr. Drozdowski to help him avoid any further problems.

20Dr. Long does comment on the genuine degree of remorse that the offender has expressed during their discussions, and this genuine remorse is mirrored in other character references and in his oral statement before me at the end of the sentencing hearing. It is also to be noted that the offender has made a voluntary donation of $200.00 to MADD Canada in February of this year and has done some volunteer work at a long-term care and seniors supportive housing complex operated by the Salvation Army and at a food bank in Fort Myers, Florida when on holiday with his parents.

21His grandfather suffered from dementia before his death and the offender regularly visited him and took him on outings. He does the same with his grandmother, who also suffers from the same disease.

4: POSITION OF THE PARTIES

22The Crown seeks a sentence of incarceration in the range of three to six months, a driving prohibition of 2 to 3 years and a period of probation with terms as suggested in the presentence report. Ms. Ward has not sought a DNA order in this case.

23Mr. Daley, on behalf of the offender, suggests that the appropriate principles of sentencing can be addressed by way of a high fine, an extended period of driving prohibition and a lengthy period of probation that would include a significant amount of community service and a period of house arrest conditions for the first several months of the probation order.

5: ANALYSIS

24The principles regarding this sentencing that I have taken into account are set out in section 718 to 718.2 of the Criminal Code and read as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

25Section 718.1 sets out the proportionality concept as follows:

718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

26Also section 718.2 sets out the relevant mitigating and aggravating factors that come into play:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and…

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

27Finally section 255.1 states:

255.1 Without limiting the generality of section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2(a).

28The Crown relies on the case decided by my colleague Justice Zisman in R. v. Verbitski, [2012] O.J. No 5422 (OCJ). In that case the offender was 24 years of age and had driven through a stop sign and collided with another motor vehicle containing the victim and his two daughters ages 13 and 15. The victim in that case suffered a loss of consciousness, a broken left arm, bruising to his left thigh and a lasting contusion. His daughters suffered no injuries. The offender in that case provided breath samples yielding results of 140 and 130 milligrams of alcohol in 100 millilitres of blood.

29The victim in that case had his arm in a cast for a month and had to use two weeks of his vacation to recover. He had to attend physiotherapy for a month and still felt anxious every time he drove.

30His daughters suffered emotional injuries in that they thought their father had been killed in the collision and now are very anxious themselves about being in a car.

31The defendant had an unrelated criminal record. In 2006 he was convicted of robbery as a youth and was placed on probation for 34 months, and in 2008 he was convicted of theft under and placed on probation for 12 months.

32That offender pleaded guilty, albeit on the day of trial, and had expressed his remorse, which Justice Zisman had no reason to doubt. He had apologized to the victim and his family. He completed 30 to 40 hours of community service prior to his plea.

33That offender had a supportive family, but his father deflected the blame for the drinking on his son's employer. There was a possibility that the offender would lose his employment if he were sentenced to a period of custody that exceeded the intermittent range.

34In the end, Justice Zisman sentenced Mr. Verbitski to a sentence of 5 months imprisonment and placed him on probation for 12 months and there was an 18-month driving prohibition ordered.

35Mr. Daley asks me to distinguish this case and takes exception to the comment made by Justice Zisman at paragraph 49 where she states that:

49 It appears that although drinking and driving offences continue to occur there has been an increase in public awareness of the dangers and that harsh penalties will be imposed for those that are caught. It is clear that in these types of offences the general public can be deterred by the prospect of a substantial sentence for drinking and driving offences.

36Mr. Daley argues that there was no evidence before the Court to warrant this observation. He also states that in that case the offender had a prior record where he had been placed on two terms of probation for a total of almost four years yet still committed the offence, unlike the case at bar where Mr. Drozdowski has no criminal record and has complied with all terms of his release without incident.

37He suggests that harsh conditions of probation, combined with a high fine and an extended driving prohibition, can serve to address the punitive requirements for a sentence to address the issues of general deterrence and denunciation, that a well-informed member of the public apprised of all the material that is before me on this sentencing would consider the sentence that he is proposing to be a punitive one and thus adequately addresses the issues of general deterrence.

38Colvin, J. was faced with a similar challenge in the case of R. v. Stefinashen, [2010] O.J. No. 6293 (OCJ). Commencing at paragraph 19 of that decision, my colleague reflects on the requirements for the paramountcy of general deterrence and denunciation in sentencing in these types of cases. He states:

19 Sentences for impaired driving causing bodily harm rise to a maximum of ten years imprisonment. The sentences vary enormously. Some have been as low as 90 days as in, for example, the Biernat decision mentioned earlier. Some have been as high as three years. R. v. Van Puyenbroek, 2007 ONCA 824 (Ont. C.A.), is an example.

20 Until Parliament amended our Criminal Code in 2008, one of the options available in sentencing was the conditional sentence or house arrest. This, Parliament has taken away as a tool of sentence. Parliament has said that Mr. Stefinashen must go to jail and the question simply is for how long. Parliament has determined that general deterrence is now the paramount consideration in dealing with a "serious personal injury offence". This is the combined result of s. 742.1 and s. 752 of the Criminal Code.

21 The fact that this sentencing was argued, and I had to reserve to come to a decision, review the materials and that there is such a range of sentence being proposed, underscores the fact that imprisonment, as general deterrence, is a most questionable concept.

22 In R. v. W. (J.) (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), Justice Rosenberg of the Ontario Court of Appeal in writing of conditional sentences said:

In my view the enactment of the conditional sentence regime, represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence.

23 In the W. (J.) decision Justice Rosenberg reviewed the reports of the Canadian sentencing commissions of 1987, the 1969 Ouimet Committee, the report of the Canadian Committee on corrections, the Ledain Commission, the final report of the commission of inquiry into the non-medical use of drugs 1973, and the 1977 Solicitor General of Canada summary and analysis of major inquires on corrections. The long and the short of the conclusion he arrives at does not favour prison as a tool of rehabilitative or indeed, as a method of general deterrence. This view was also expressed by Justice Shalhaney (sic) in a 1995 decision R. v. Flynn, [1995] O.J. No. 1216 (Ont. Gen. Div.). In that case Justice Salhaney wrote:

We have to start with the basic recognition that it is not the function of the courts to prevent crime -- that is the duty and the responsibility of the police. The function of the courts is to punish offenders who have been proven to have committed crimes. Unfortunately, there is a misguided and simplistic belief by some members of the public that the imposition of heavy sentences will automatically deter crime. We know from history and experience that this is simply not true. Such a belief places an unfair burden on the courts and instills an unrealistic expectation in the minds of the public.

24 Our Parliament brought in a major change in sentencing in 2008. Parliament, in effect, ruled that there must be a sentence of imprisonment for people such as Mr. Stefinashen, in offences such as this, regardless of the negative effects that might have on them, and the lack of any positive effect on their victims. The cost of incarcerating Mr. Stefinashen will be somewhere between $73,000.00 and $90,000.00 a year. The fact that government resources will go to incarcerating Mr. Stefinashen rather than assisting Ashley Hyatt and Megan Hyatt to recover from the injuries they have suffered is irrelevant.

25 As a judge, I must give effect to what Parliament has laid down. I must therefore consider how long a period of incarceration Mr. Stefinashen should face. In doing so, I must bear in mind the comments of Justice Cory in R. v. Bernshaw (1994), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.). In that decision the Supreme Court of Canada in 1995, Justice Cory reviewed the serious costs, monetary and physical, that flow from drinking and driving.

26 While the Biernat decision raised by Mr. Evans is attractive, the nature of the injuries in that case compared to the injuries in this case require that the outcome be different. The Biernat case involved driving in a parking lot at low speed knocking the victim to the ground with resulting relatively minor injuries. It is vastly different from this case.

27 I must balance the prospects for Mr. Stefinashen's future with the serious nature of the offence. It is appropriate, in my view, that he should be sentenced to a period of six months imprisonment.

39In that case, the facts were far more serious that the case at bar, resulting in one victim having a closed head injury, which altered her personality and will be something she would live with for the remainder of her life. The other victim had a broken bone that required surgery to repair. As well, the accused in that case suffered serious and debilitating injuries, including an eye injury that required surgery and depression over the injuries that he had caused to the victims. Notwithstanding the accused's young age and lack of a criminal record, the profound remorse that he felt, the positive presentence report that he received, and his family and community support, he was sentenced to a period of six months in custody rather than the period of 12 to 18 months sought by the Crown. I suspect that absent the significant injuries suffered by the accused himself in that case that he may have even received a sentence more closely approaching that requested by the Crown.

40Justice Zisman correctly states the principles to be addressed in sentencing on impaired causing bodily harm cases as follows commencing at paragraph 12 of Verbitski, supra, and I adopt her reasoning wherein she states:

12 The overriding principle of sentencing in cases such as this is general deterrence. This was the conclusion of the Ontario Court of Appeal in R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145, where the court clearly stated its policy approach and underlying rationale. In my view, the passage from this decision that I intend to quote is as true today as it was then, and would also currently find overwhelming public support:

In my view, the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by overemphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

13 Ten years later Justice Cory spoke of the gravity of drinking and driving offences in an often quoted passage from his decision in R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at paragraph 16:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

14 It is also clear from these decisions that denunciation is also an important objective of sentencing where personal injury or death is involved. It is through denunciation that general deterrence is reinforced, shared community values are communicated and the public is assured that the offender has been held to account for his or her particular conduct. Depending on the offender's personal circumstances and circumstances surrounding the offence under consideration, personal deterrence may also come into play.

15 In R. v. Biancofiore (1997) 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), Justice Rosenberg further concluded that courts must take care not to de-stigmatize drinking and driving offences. Denunciation through incarceration would generally have this effect and would guard against law-abiding people regarding such behaviour as a mere "accident" or "error in judgment", rather than the criminal act is was (supra, at paragraphs 25 to 29).

16 In R. v. Biancofiore, supra, the Court of Appeal concluded that under the sentencing regime introduced by Sections 718.1 and 718.2 of the Criminal Code, incarceration was proportionate to the gravity of the offence and degree of responsibility of the offender in serious drinking and driving cases. There is a high degree of moral culpability when an offender intentionally takes a risk that manifests itself in an unsafe manner of driving resulting in harm to someone else. Justice Rosenberg reconfirmed the gravity of drinking and driving offences, quoting the passage written by Lamer J. in R. v. Bernshaw, ibid.

17 As result of Biancofiore and subsequent decisions of the Ontario Court of Appeal and this court, it is clear that denunciation and deterrence are still the governing sentencing principles in these cases, and for all the same reasons.

18 Counsel for both the Crown and defendant provided the court with several cases to support their respective positions. It is clear from these cases and the principles I have cited above that the courts emphasize that any sentence imposed must address the principles of deterrence and denunciation and protection of society. In most of the cases, a term of incarceration is imposed to emphasize the serious nature of this crime. However, the sentences in these cases vary from short intermittent sentences as requested by the defendant to terms of penitentiary. Although an examination of similar cases is helpful, few cases are identical on their facts.

41The facts in Verbitski, supra, are in some ways less aggravating than in this case.

42In that case, the victim attended physiotherapy for approximately one month where in the case at bar, two of the victims continue to attend physiotherapy and engage in chemical pain relief some two years and five months after the collision. As in Verbitski, at least three individuals suffer anxiety from being in a car. In Verbitski, the offender pleaded guilty on the day of trial and avoided the trauma of having the victims testify. In the case at bar, the victims did testify at the preliminary hearing and did not avoid the trauma of having to relive the circumstances of that evening. Certainly some mitigation is to be given this offender for his plea of guilt and acceptance of responsibility, but on a lesser basis than if he had accepted responsibility without the necessity of having witnesses called at the preliminary hearing.

43As well, in the case at bar, the blood alcohol readings are in the statutorily aggravating range identified in s. 255.1 of the Criminal Code.

44It is true that the defendant in this case comes before the Court with absolutely no criminal record, that he is a young man of good character and that he is kind and compassionate, and a young man who, as Mr. Daley submits, anyone would like to have as a son or a friend. However, offenders charged with this type of offence all too often share these same characteristics. In my view, what is critical to the analysis are the injuries that the victims of these offences suffer.

45In the case at bar, the injuries have profoundly affected the victim's enjoyment of life. The injuries have persisted long after the offence and continue to impact at least two of the victims up to February 2014 and probably still to this day. They may continue indefinitely, and one victim is at serious risk of having glaucoma that could result in blindness in her eye.

46As observed by Vaillancourt J. in R. v. Rooplal, [2009] O.J. No. 5493 (OCJ), some cases of impaired driving causing bodily harm can result in the imposition of a non-custodial sentence. As he stated at paragraph 30:

30 I am aware that incarceration is not the only sentencing option when dealing with the offence of impaired driving causing bodily harm. The Criminal Code provides for a minimum monetary penalty. The trial judge in R. v. Rowan, [2004] O.J. No. 3719, (C.A.), adopted a joint submission for a fine, probation and a three-year driving suspension. The Court of Appeal dismissed the appeal regarding the length of the driving suspension noting in paragraph three that, "The trial judge, [2003] O.J. No. 5922, accepted a joint submission that a fine and period of probation, as opposed to a jail sentence, were sufficient to reflect the principles of general and specific deterrence but only with a driving prohibition of three years." In Rowan the injuries were "not as serious as in some cases." One victim received a hairline fracture of her right wrist and some back pain. Another victim experienced some back pain. Mr. Rowan had a breath reading of 220 and 210.

47In R. v. Sinnarasa, [2005] O.J. No. 4039 (Ont. Sup. Ct.) Justice Durno was asked to sentence a youthful first offender to a conditional sentence (now unavailable for this offence) wherein the victim, who was a passenger, suffered a broken vertebra. The victim made a full recovery from his injuries and did not hold any feelings of ill will against the offender and did not want the offender punished too harshly. In that case, Durno, J. felt that the imposition of a conditional sentence would not be consistent with the purposes and principles of sentencing; in particular, general deterrence and denunciation. That offender was sentenced to a period of 60 days in custody.

48In my view, it will be rare for an offender, even a remorseful one with no prior record, to be sentenced to a non-custodial term in a case such as this when the injuries are more than just above the level of proving bodily harm absent clear direction from an appellate court to the contrary. People who chose to get behind the wheel of a car and risk permanently altering or taking away the lives of members of the public, having them remain in pain on a daily basis for an extended period of time, must know that their sentence will be determined by placing great weight on painful life-altering injuries that persist long after the criminal act and indeed long after the sentencing. To be grossly impaired and to operate a motor vehicle which results in serious injury to a member of the public will result in, in all but the most exceptional of cases, a custodial sentence of ever increasing length in great part depending on the nature and seriousness and length of the injuries. That is the game of chance that all impaired drivers face.

49If the injuries are of a relatively minor nature, yet enough to meet the threshold of the definition of "bodily harm" in the Criminal Code, and if the offender's background and community supports are good and they are remorseful and accept responsibility for their acts and are not a danger to the public, then a non-custodial sentence is possible and should be considered. As the severity of the injury to the victim increases, the impact on their life becomes more pronounced, and the length of time that the injury and its consequences is expected to last, then the possibility of a non-custodial sentence diminishes in direct proportion to these factors even with the exceptional background that is possessed by this offender and many other similar offenders sentenced in these types of cases.

50Absent a clear signal from an appellate court that there should be a downward departure from these principles, they are the ones that I am bound to adhere to. Yet, it always hurts me to "sacrifice a person on the altar of general deterrence" in a case such as this.

51Perhaps this type of case suggests a need for a more focused restorative justice court, which more actively involves the victims in the entire sentencing process. In my view, a victim impact statement completed in February of this year for a sentencing in May, without any real knowledge of the person that put them in their pain, is limiting from a restorative justice perspective.

52I would have preferred the victims in this case to have all of the information that is before me now that they have not been privy to, but, most importantly, the real and visceral remorse that this accused feels and has felt since the outset for causing their pain and to have him apologize to them face to face, and perhaps for them to forgive him. That would be true restorative justice and would be healing for both the victims for the accused and would enable me to formulate a sentence that may have been more appropriate for this young man and more understandable to all involved.

Mitigating Factors

53The following are the mitigating factors that I have found:

1. The offender has no previous criminal record.

2. He has plead guilty and accepted responsibility for his conduct. Although the victims were not spared the trauma of testifying at the preliminary hearing, the plea does save court time and expense that would be associated with a trial.

3. He comes from a close-knit, pro-social and supportive family and enjoys their love and support.

4. He is employed and well regarded by his employer and his coworkers and supervisors.

5. He has a positive presentence report as well as supporting letters.

6. He has made a voluntary charitable donation to MADD and has completed some community service hours, although the amount is not specifically quantified.

7. There is no evidence that he has a substance abuse problem.

8. I accept that he is remorseful and has empathy with the suffering of victims.

9. He does suffer from Type 1 Diabetes and requires an insulin pump. There is, however, no evidence before me that the Correctional authorities could not accommodate his medical needs while in custody.

10. I think that there is little need to address the issue of specific deterrence as the offender's remorse, the consulting of professional help, comments in the supporting letters that he always arranges for designated drivers and warns his friends about the dangers of drinking and driving make it unlikely, in my view, that he would repeat this type of conduct.

Aggravating Factors

54The aggravating factors that I have taken into account are the following:

1. The nature of the accident involves a reasonable inference that he was travelling at a high rate of speed in good driving conditions and clear visibility and did not notice three or four vehicles that were stopped or stopping at a plainly marked stop light when he ran into the last vehicle starting a chain reaction that caused serious property damage and personal injury.

2. His blood alcohol was 180 milligrams of alcohol in 100 millilitres of blood, thus a statutorily deemed aggravating factor. See s. 255.1 of the Criminal Code.

3. The injuries suffered by the victims were not just above the threshold for bodily harm, but caused serious interference with the lives of the victims and persisted for over 2 years after the collision.

Sentencing Decision

55Having regard to all the factors in this case, I have come to the reluctant conclusion that the principles of general deterrence and denunciation cannot be adequately addressed by a non-custodial term, a fine, significant community service hours and an extended driving prohibition.

56In all the circumstances of this case, I believe that the appropriate sentence is one of 90 days in custody.

57I will, as well, prohibit the offender from operating a motor vehicle on any road, highway or other public place in Canada for a period of 18 months.

58He will be placed on probation that will be for a period of 12 months.

59He will be required to report to a probation officer within seven days of his release from custody, to report as directed, to keep the peace and be of good behaviour and to attend the Missing You program.

60He will be required to attend a substance abuse relapse prevention program, take any other counselling as directed by his probation officer and to sign all releases to allow his probation officer to monitor his compliance with that program or counselling.

61He is not to consume or possess alcohol during the period of his probation.

62Because of the charitable donation that he has made, I will waive the victim surcharge.