R. v. Fairchild, 2017 ONCJ 658

Court Information

Date: September 29, 2017

Information No.: 16SR5277

Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

Her Majesty the Queen

- and –

Ocean Fairchild

Counsel

For the Crown: Ms. S. Sheehan

For Ocean Fairchild: Ms. K. Vanderlee

Before: J.S. Nadel, J.

Reasons for Sentence

Introduction

1On Friday, May 13, 2016, at shortly after 1:00 a.m. in the morning, Ocean Fairchild drove his black 2003 Ford Escape SUV head-on, (driver's seat to driver's seat), into the vehicle that his major victim, Michelle Skinner, was operating in a safe and prudent manner.

2Ms. Skinner was travelling southbound on Ontario Street in St. Catharines, Ontario driving a white, 2001 Buick Century motor vehicle. She had come to a stop for the light at the intersection of Ontario Street and Meadowvale Road. As her light turned green she commenced to continue southbound with her friend and passenger, Lynne Gray, sitting beside her.

3Suddenly and without any sufficient warning that might have permitted her to take evasive action, Ms. Skinner's vehicle was struck head-on by Ocean Fairchild, who was travelling northbound at an excessive and unsafe rate of speed on Ontario Street. Fairchild hurtled into the intersection, crossed the centre line and struck Skinner's vehicle with significant force.

4That portion of Ontario Street is a posted 60 km/h zone. Fairchild's speed was determined to be no less than 124 km/h and possibly as high as 136 km/h. Additionally, Fairchild's BAC was determined to be no less than 74 and no more than 118 milligrams of alcohol in 100 millilitres of blood. His blood also contained a therapeutic level of "lorazepam" at the time of the collision.

5There were no external causes of this crash. It was nighttime but the intersection was well lit. It had been raining but visibility was good and the roads were not slippery. In these circumstances, Fairchild pleaded guilty to one count of dangerous driving causing bodily harm. (The injuries to Lynne Gray, Ms. Skinner's passenger, were read in as an aggravating feature of the offence.) It should be noted that Fairchild was taken to hospital by ambulance. His injuries were characterized as serious but not life threatening, however they were never detailed. As noted below, Fairchild was released from the hospital and not detained by the police.

The Injuries Sustained by Ms. Skinner and Ms. Gray

6Ms. Skinner, was 54 years old at the time of the collision. She had to be cut out of her vehicle. She sustained injuries that were initially assessed as "life threatening" and which can fairly be described as major and life-altering. She sustained two broken legs. Her left femur required the insertion of an intramedullary rod and her right femur required external plating. Her right knee was crushed during the collision and the brake handle became embedded in her left knee causing permanent damage to it, too. In addition, her right ankle was fractured. Beyond all of this, she suffered blunt force trauma to the right side of her skull.

7Ms. Skinner had a very difficult recovery. She spent eight months hospitalized after the collision. She suffered from multiple bouts of infection caused by the remedial measures that her treatment necessitated. Not surprisingly, she remains depressed by the pain and suffering that she has sustained to date and even more significantly by the major limitations on her mobility, freedom of movement and capacity to engage in activities. These limitations are likely to be permanent. While she can walk with a walker at home, she cannot ascend or descend stairs. Additionally she can no longer drive a motor vehicle. She is wheel-chair bound when she is able to leave her home and cannot visit her friends because their homes are not accessible to her. Her life has been badly deformed and diminished by Mr. Fairchild's crime.

8Ms. Skinner filed an eloquent victim impact statement that speaks to her pain, anxiety and fears for her future. In addition, the Crown filed an extensive physiotherapy report on Ms. Skinner's treatment outlining the many difficulties she is encountering in attempting to rehabilitate her life. She had been diagnosed as developing PTSD as well as a major depressive disorder, in consequence of her victimization. This crime has clearly had a significant impact on her, given her age and circumstances. She may be required to undergo further surgeries and her prognosis and prospects for a more fulsome recovery are and remain uncertain. Her life is much diminished from what it was and what it could have been as a result of Fairchild's crime.

9Ms. Gray's injuries were much less serious than Skinner's but Ms. Gray was substantially older than Skinner and hence less resilient and less capable of recovering from them. Ms. Gray sustained bruised ribs and a dislocated left thumb, exacerbated by a bone chip in that digit. She also sustained soft-tissue whiplash in both her neck and lower spine, together with a bruised hip that was slammed against her car's armrest as it spun out-of-control. She has lost 50% of the use of her left thumb and expects to incur ongoing chiropractic treatments for her soft-tissue injuries, along with psychological fears about travelling in cars.

10While Fairchild was also taken to the hospital from the scene, he was released both from the hospital and by the police. Hence there is no pre-sentence custody credit nor Downes credit to be assessed in crafting his sentence.

Ocean Fairchild

11Ocean Fairchild was born on April 3, 1976. He was 40 years old when he slammed his vehicle into Michelle Skinner's car. He had no prior criminal record until he pleaded guilty before me on May 16, 2017. He did have three Highway Traffic Act convictions that were filed as Exhibit 3 on his guilty plea. That record consists of the following entries:

Conviction Date	Province	Particulars	Offence Date
2016-02-18	Ontario	Fail To Share Road When Overtaking	2015-11-27
2015-09-17	Ontario	Shall Not Drive Holding Or Using a Hand-held Communication Device	2015-05-11
2015-03-09	Ontario	Following Too Closely	2015-02-27

12In addition to these three convictions, Fairchild was also involved in two property damage collisions. Both of these incidents occurred in 2015. The first occurred on February 27th when he was following another vehicle too closely. The other one happened on November 27th when he was travelling too fast for the road conditions.

13A pre-sentence report, (filed as Exhibit 4), augmented by Ms. Vanderlee's submissions provides extensive background information and some context to the circumstances of the night of the collision.

14Fairchild has two older brothers but his biological father left his mother before Fairchild was born. Seven years later his mother remarried and had a daughter with Fairchild's step-father.

15Fairchild is gay and his sexual orientation has been rejected by his family. His step-father has been physically and sexually abusive towards him though the family does not believe these allegations and no prosecutions have been initiated against his step-father. Fairchild says that one of his brothers is homophobic and the other is a drug-addicted criminal recidivist. His mother is supportive of her husband and his half-sister rejects his allegations about her father so she and Fairchild have a poor relationship. In short, he is rejected and ostracised by his family.

16While he has a high school equivalency, it was gained when he was an adult, since he found school a painful place due to his homosexuality and small stature – he stands 5' 3" tall, according to Ms. Vanderlee.

17Further, according to Ms. Vanderlee, in the hours before the collision Fairchild had argued with his half-sister and become upset as a result. He bought a bottle of gin and drank some, at a time when he had lorazepam in his system. In what I would call a "funk" he drove dangerously and caused bodily harm to his victims. He says that he has amnesia of the circumstances of the accident itself.

18The defence filed extensive psychiatric reports about Fairchild. His psychiatrist, Dr. Frederic Crouzat, (who works at "CAMH"), lists the following DSM-5 diagnoses as applying to Fairchild:

1. post-traumatic stress disorder with depersonalization;
2. major depressive disorder, recurrent, currently mild to moderate;
3. borderline traits, rule out borderline personality disorder;
4. rule out obsessive-compulsive disorder;
5. social isolation;
6. estrangement from family;
7. unemployed.

19Dr. Crouzat also opined that Fairchild uses alcohol in a maladaptive fashion as a coping mechanism.

20Fairchild has a limited employment history. He is currently supported by ODSP.

21In my view, Fairchild has been chastened by the consequences of his actions. Subsequent to being charged he made a serious suicide attempt. In addition, he commenced and continues to engage in an extensive regime of counselling and volunteer work that is detailed in the PSR and in Exhibit 6, a volume of materials filed by the defence. Those materials speak to his capacity for insight, rehabilitation and contribution to the community in his attempt to expiate his crime.

Aggravating Facts – Alcohol and Speed

22Fairchild had alcohol in his blood system at the time he was driving. His BAC was determined to be no less than 74 and no more than 118 milligrams of alcohol in 100 millilitres of blood. This is an aggravating feature of his crime. Likewise, the lowest speed that he was determined to be travelling at was 124 km/h, which was more than twice the 60 km/h posted speed limit in the area where he crashed into the Skinner vehicle.

A Caveat

23During her sentencing submissions Ms. Sheehan referred to a passage from R. v. Fracassi, [2017] O.J. No. 12 (SCO), where Justice R.C. Boswell, at paragraph [36], cogently identified three basic limitations of the sentencing process. Justice Boswell wrote:

(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with;

(2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code and that it be fit for purpose -- neither too lenient nor too harsh -- in order to maintain the confidence of the broader public; and,

(3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.

24With those limitations in mind, I turn next to the submissions of the Crown and of the Defence.

The Crown's Submissions

25Ms. Sheehan began her submissions by identifying her view of the appropriate range of sentence in this case. In her view that range falls within the upper reformatory to low penitentiary; that is to say between 18 and 30 months. Despite conceding that a fit sentence could be as low as 18 months, Ms. Sheehan contended that 30 months would be most fit, based upon a consideration of the aggravating and mitigating circumstances and applying the general principles of sentencing mandated by the Code.

26In support of her position Ms. Sheehan referred first to Justice M. Felix's decision in R. v. Mitchell, [2016] O.J. No. 6161 (OCJ). Among many other points of analyses, Mitchell endorses the proposition that the degree of bodily harm caused should not be the deciding factor in whether an offender is sent to the penitentiary. That conclusion follows from the chance nature of the degree of harm occasioned by many collisions. Many other factors must inform that ultimate decision, including the predominant concern to promote general deterrence.

27Specifically Ms. Sheehan referred to the instruction from the Court of Appeal in R. v. McVeigh, [1985] O.J. No. 207, that was quoted by Felix J. in Mitchell, at paragraph [18]; viz. that otherwise productive and law-abiding members of the community are the very people who may best be deterred by the prospect of substantial sentences for the kind of crime being sanctioned here, since individual deterrence is seldom needed for these individuals after tragedy has resulted from their behaviour while driving.

28Ms. Sheehan points to another of the cases where this sentencing principle is reiterated, being R. v. Selvakumar, [2016] O.J. No. 4106 (OCJ). There, Justice Wakefield, at paragraph [31], referred to R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J. No. 64 at paragraphs [73] and [74] as providing that "while it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than the chronic offenders, who will be sensitive to harsh sentences." That decision quoted a passage from R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 at paragraph [129], that provides that "dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by threat of severe penalties".

29Ms. Sheehan reminded the court of the extensive impact that this crime has had on Ms. Skinner. That impact is so substantial as to be a statutorily aggravating factor pursuant to s. 718.2 (a) (iii.1). Returning to the point she made earlier, Ms. Sheehan notes that while Ms. Skinner was not killed, her quality of life has been irreparably damaged and diminished and Mr. Fairchild's moral blameworthiness in the commission of this crime is absolute and unmitigated by any act of contribution from the victims.

30The Crown points to the following aggravating circumstances:

• excessive speed;
• driving with a level of alcohol in his body that, while arguably below the per se limit permitted by the Code, would nonetheless attract a suspension of driving privileges and an impoundment of a vehicle under the Highway Traffic Act;
• using alcohol and driving while having ingested lorazepam, which seriously aggravates the dangerousness of his driving;
• in that condition he drove a large motor vehicle dangerously;
• that he has a prior Highway Traffic Act history of convictions and a history of having been involved in two prior motor vehicle property act collisions, in the relatively recent past;
• that the maximum penalty for this crime is ten years of imprisonment demonstrating the severity of the offence.

31While not strictly an aggravating circumstance, the Crown submits that some comments made by Fairchild show a lack of insight into his culpability for his behaviour.

32The Crown concedes that Fairchild has addressed several areas of personal and psychological concern subsequent to committing this crime. Notwithstanding having done so Ms. Sheehan submits that Fairchild still suffers from a lack of insight into his culpability for this collision. She draws that conclusion from a comment made by Fairchild to his treating psychiatrist found at Tab – 1 of Exhibit 6 ("Defence Sentencing Materials"), where the psychiatrist states: "Although he took full responsibilities (sic) for his involvement in the MVA on that fateful night in March (sic) 2016, he was incredibly relieved to finally see the results of his toxicology screen that supported his claims of not being under the influence of alcohol or other recreational drugs at the time of the accident." (emphasis added)

33In my view, the Crown overstates the significance of this passage. The mixture of lorazepam and alcohol to any degree was ill-advised and is an aggravating feature of his crime, but it is not a denial of responsibility. Fairchild was correct that he was not affected by illegal street drugs and he is correct that his BAC may well have been within criminally allowable limits. I don't read more into his psychiatrist's comment than that. That passage cannot derogate from the hours, indeed weeks of counselling that Fairchild has undertaken to help him deal with the inadequacies of his life and personality that led him to act out with such tragic consequences.

34Ms. Sheehan acknowledges that Fairchild had a less than optimal childhood and upbringing and that he developed mal-adaptive strategies for coping with his "demons." Those mal-adaptive coping mechanisms included just what he did on this night; i.e., attempt to cope with the stresses of his life with alcohol while taking prescribed lorazepam.

35Ms. Sheehan submits that Fairchild continues to exhibit an "ongoing lack of insight here with respect to the contributing factors that led to the collision." The basis for her view is what she sees as the persistent characterization of the collision as an "accident" in the various defence exhibits filed. She infers from this language that Fairchild has and maintains a diminished subjectively held responsibility for committing this crime. I am of the view that such an inference is available and I am prepared to draw it. While Fairchild cannot be held responsible for the language and vocabulary used by his psychiatrist or by the pre-sentence reporter, Fairchild's own use of language is another matter.

36His one page letter to the court, dated August 17, 2017, (which can be found at Tab – 13 of Exhibit 6), calls this collision an "accident" five separate times. His fifth and last reference being: "My mental state has been to say the least extremely unstable and I beg you and plead mercy with the court that it was an accident and that I never meant to hurt anyone."

37The Crown acknowledges the several mitigating factors capably referred to by the defence in their materials, including the following:

• the offender is a mature first offender without any prior criminal record;
• the offender has verbalized and shown remorse;
• he has taken steps to address the issues, (mental health, childhood sexual victimization and substance abuse), which led to his behaviour on this night;
• he has contributed to the community by volunteer work subsequent to the offence;

38The Crown acknowledges the many mitigating circumstances that exist but submits that despite those circumstances and despite some psychological fragility on Fairchild's part, an appropriate and fit sentence would be one of 30 months incarceration, given the magnitude of his crime and the principle of general deterrence for otherwise law-abiding individuals who wreak havoc with motor vehicles. In the Crown's view, that would be a fit sentence, one that is proportional to the gravity of the offence and Fairchild's degree of moral culpability in its commission. That said, the Crown concedes that it would not necessarily be inappropriate to impose an upper reformatory sentence followed by extensive probation on appropriate terms.

The Defence's Submissions

39Ms. Vanderlee began her submissions by pointing out that many of the cases relied upon by the Crown were impaired driving offences causing death or bodily harm and not dangerous driving sentence precedents. In addition the defence submits that most of the cases in the Crown's casebook can be distinguished by reference to the other facts of them in any event.

40Ms. Vanderlee went on to note that on April 3, 2017 Mr. Fairchild attempted to commit suicide taking an overdose of drugs available to him. In my view, while his motivations for making that attempt may be manifold, a substantial contributing cause was his remorse for having committed this crime, and the despair that he felt about his future as a result of having done so.

41Counsel responded next to the Crown's submission that Fairchild lacked insight into his culpability since both he and the people he spoke to call the collision an "accident". First, Ms. Vanderlee noted that the Crown did not allege and would not have been able to prove that Fairchild's BAC was above 80 milligrams of alcohol in 100 millilitres of blood. Next the defence submitted that Fairchild does have insight though he struggled with some of the legal concepts at play in this prosecution. Those struggles do not derogate from his remorseful, which is manifest in the letters and materials file on his behalf, being Exhibit 6.

42In mitigation of his actions Ms. Vanderlee notes that while Fairchild had a therapeutic level of lorazepam in his system, an exhibited CFS report opined that a person, like the offender, can develop a tolerance for that drug and, given his BAC, that Mr. Fairchild did not feel that he was grossly intoxicated when he began to drive.

43In addition, he is a first offender, with no prior criminal record, and a very positive pre-sentence report. He is currently aged 41. He pleaded guilty. While his driving record is not helpful it is not overly aggravating.

44Ms. Vanderlee stresses that incarceration must be meted out with restraint and that all available sanctions less than jail must be considered. Moreover, the principle of rehabilitation ought not to be ignored despite the significance of the injuries to his victims.

45In urging this submission, Ms. Vanderlee highlights the "huge steps" her client has taken since the collision to turn his life around, emphasising the psychological and behavioural counselling that Fairchild has been involved in and emphasising the volunteer hours that he has contributed since committing his crime. The defence contends that the extent of those rehabilitative efforts distinguishes Fairchild from many of the middle-class offenders referred to in the Crown's book of authorities.

46The defence also submits that being disinherited by his family is not a future risk factor for Fairchild. His lack of family support is off-set by the insight that he has gained since the collision, by his prior lack of any criminal antecedents and by the counsellors, friends and volunteer associations that he has made since the collision.

47In addition to his rehabilitative efforts, Ms. Vanderlee stresses that her client's psychological fragility, (manifested by his suicide attempt earlier this year), his sexual orientation and slight psychical stature combined require that a very light carceral hand be administered in his relatively unique circumstances. The defence contends that any period of incarceration will be unduly difficult for him; that he will do particularly hard time and that that, too, should reduce the length of what might otherwise be an appropriate.

48In sum, Ms. Vanderlee submits that the events after the collision have changed Fairchild to his core, that he is not the man he was and that it would be fitting for his sentence to evince that reality. He has arranged for admission to continued counselling that will be available to him after he is sentenced.

49In the result, it is the defence's contention that a suspended sentence is within the range of fit sentences in this case. In any event, any sentence beyond six months would be unfit and excessive in the defence's submission. If incarceration is required then a sentence within the intermittent range ought to be imposed.

50As my ruling will shortly show, I do not accept the defence contention that this range of sentence would be fit. In my view the defence submission is inadequate to meet these facts and circumstances.

The Sentence

51Binding appellate direction requires me to conclude that general deterrence be the predominant principle propelling the sentence to be imposed. Pursuant to s. 718.1 this sentence must be proportionate to the gravity of the offence and Fairchild's degree of responsibility for its commission.

52Fairchild drove dangerously and caused severe bodily harm to Michelle Skinner, as well as bodily harm to another victim, Lynne Gray, as described earlier in these reasons. At a well-lit city intersection he smashed into his victims in essentially a head-on fashion. He was travelling at more than twice the posted city speed limit, while under the influence of alcohol and prescribed anti-anxiety medication. His victims had no chance to even attempt to avoid the collision. The consequences to his main victim were life-deforming and undoubtedly permanent. This was a grave offence and Fairchild's degree of responsibility for its commission is, as I have said previously, absolute.

53Bearing in mind Fairchild's psychological fragility, his small physical stature, and his lack of any criminal antecedents, a penitentiary term would not be a fit sentence. Sentencing an individual in his circumstances to a penitentiary sentence would be unduly punitive and unfit. In addition, anything over two years plus one day would preclude the availability of protective probationary restrictions.

54As I have noted elsewhere, retribution is a part of the criminal law. Its function is to sanction the moral culpability of the offender. It is woven into the principles of sentencing in Canadian law by the fundamental requirement that a sentence be "just and appropriate" under the circumstances. It is Fairchild's "moral blameworthiness" that justifies the state in imposing the stigma and punishment associated with a criminal sentence. It is the "moral blameworthiness" of Ocean Fairchild's conduct which animates the determination of the appropriate quantum of punishment for a convicted offender as a "just sanction".

55However, legal retribution bears little relationship to vengeance. Vengeance is an uncalibrated act of harm upon another motivated by emotions and anger, as a reprisal for a harm inflicted by that person. Retribution in a sentencing context represents an objective, reasoned and measured determination of an appropriate punishment, which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

56Importantly, and unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

57As noted by the Supreme Court of Canada"[i]n the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a 'just and appropriate' sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender."

58In my view, a fit sentence on all of these facts and in all of these circumstances is a sentence of 18 months in the reformatory to be followed by two years on probation on terms to be pronounced momentarily. In addition, Mr. Fairchild will be prohibited from driving for a period of five years. There shall be a primary designated DNA order that will remain in effect until it is carried out. Mr. Fairchild shall be allowed 36 months to pay the victim surcharge. A s. 743.21 order shall also issue, prohibiting Mr. Fairchild from contacting his victims.

Dated at St. Catharines, this 29th day of September, 2017.

J.S. Nadel (O.C.J.)

Footnotes

1Ms. Sheehan outlined Ms. Skinner's history of community service and involvement by way of submissions. Ms. Skinner was a day-care worker for 20 years and then spent seven years as a care-giver to adults with special needs. She left that endeavor in 2012 to provide care to her elderly mother who had special-needs and who has been now presenting within dementia.

2This drug is a member of the benzodiazepine family and is used to treat anxiety. Its effects are potentiated when taken in conjunction with alcohol.

3I have attached a copy of the index of citations submitted by the Crown and by the Defence at the conclusion of these reasons for sentence.

4R. v. C.A.M., [1996] 1 S.C.R. 500 (S.C.C.)