Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Clinton Sebastian Francis
Reasons for Sentence
Justice: Paul F. Monahan
Pleas of Guilt taken: September 11, 2020
Sentencing Submissions held: December 4, 2020
Written Reasons for Sentence released: December 10, 2020
Counsel
Ms. A. Simitsis — for the Crown
Mr. D. Cohn — for the defendant
Introduction
1Mr. Clinton Sebastian Francis pled guilty before me on September 11, 2020 to one count of leaving the scene of an accident contrary to section 252(1.1) of the Criminal Code of Canada and one count of public mischief contrary to 140(1)(c) of the Code. The Crown proceeded by indictment. I will explain below under the heading Potential Immigration Consequences, the background to the plea of guilt being taken to the section 252 (1.1) offence. However, to be clear at the outset, both the Crown and defence agree, as is reflected in the agreed statement of facts, that Mr. Francis is to be sentenced on a consideration of all the aggravating and mitigating facts. The aggravating facts include that Mr. Francis left the scene of an accident knowing or being wilfully blind to the fact that a person had suffered bodily harm by reason of the accident and Mr. Francis was reckless as to whether death ensued. He did so to avoid civil or criminal liability.
Circumstances of the Offence
2A five page agreed statement of facts was filed as an exhibit on the sentencing hearing. I will not go over all those facts here although I have had regard to them in arriving at my decision concerning sentence.
3Briefly stated, on November 30, 2018 at about 7:35 PM, the victim, Gianfranco (John) Zucatti, attempted to cross Dundas Street East in the middle of the block in front of the Fort York Motel in the City of Mississauga. In other words, the victim was "jaywalking". This is a major east and west bound street in the City of Mississauga. It has three lanes of traffic going in each direction plus a middle lane which is shared. The speed limit is 60 km/h. The roads were clear and there was clear visibility. It was dark, however, there was artificial lighting from the street lights in the area.
4Before the victim completed crossing the roadway, he was struck by an eastbound travelling red Dodge Challenger later determined to have been operated by Mr. Francis. Mr. Francis did not stop.
5A 911 call was received at approximately 7:49 PM by Peel Regional Police. Emergency personnel attended on the scene and the victim was pronounced dead at 8:06 PM.
6The police later determined that Mr. Francis had left work that day at about 4:30 PM. He and two other friends met at Tim Hortons also on Dundas Street East about 1.9 km west of where the accident occurred. Mr. Francis knew that he had been involved in an accident with a person or was wilfully blind in this regard. He knew that bodily harm had been caused and was reckless as to whether death ensued. He left the scene without any attempt to render assistance to the victim and he did so in order to escape civil or criminal liability.
7Mr. Francis abandoned his vehicle some distance away and then embarked upon creating an elaborate story in order to avoid detection. He made his way to downtown Toronto near the Eaton Centre where he ate at a Popeye's restaurant at about 11 PM using his debit card to pay and generating a banking record in this regard. He went to 225 the East Mall and took an Uber home thereby generating an Uber receipt. He then told police that his car had been stolen from 225 the East Mall. He told police that he had been in downtown Toronto doing some shopping and he used the receipts he had generated to support this false narrative.
8The police spent significant time and resources to uncover the truth. The investigation continued for three months during which time they obtained multiple production orders and search warrants. They also analyzed cell phone records, banking records and video surveillance. They also interviewed witnesses.
9Ultimately, police determined, correctly, that Mr. Francis' story was a complete falsehood. He was arrested on March 19, 2019 for failure to remain contrary to section 252(1.3) and public mischief contrary to section 140(1)(c).
Victim Impact Statements
10I had the benefit of hearing the victim impact statements from the surviving family members of Mr. Zucatti. I cannot do justice to what they told the court. I heard from his daughter, his stepdaughter, his sister and his spouse. Their statements were thoughtfully written and delivered. They helped the Court understand the kind of man John Zucatti was and what he meant to them. It is clear to me that he is a man who loved all of them and they loved him. His death was tragic. He was only 54 years of age. I have had regard to the impact on the victims in arriving at the appropriate sentences in this case.
Evidence on the Sentencing Hearing
11The evidence on the sentencing hearing included the agreed statement of facts; photographs associated with the accident; the victim impact statements; the presentence report (which I will have more to say about below); and the character letters filed in support of Mr. Francis. Certain other documents were marked for identification.
Position of the Parties
12The Crown seeks a sentence of 12 to 15 months imprisonment; a two-year probation order and a three-year driving prohibition as well as a DNA order.
13The defence seeks a global sentence of 4 to 5 months imprisonment.
Law
General Principles of Sentencing
14The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (section 718.1 of the Code). This is achieved by identifying and considering the aggravating and mitigating factors and circumstances of the offence and the offender bearing in mind the established principles of sentencing including those set out in section 718.2 of the Code. The sentencing objectives listed in section 718 must be considered. In addition, the Court must always be mindful of the principle of restraint contained in section 718.2 (c) to (e). The impact on any victim must also be considered. It is in this context and in considering these principles, goals, objectives and factors, that the Court selects a fit sentence that will best achieve the sentencing objectives and is similar to sentences imposed in similar cases (see section 718.2 (b)). The foregoing description of the sentencing process is based largely on Justice Paciocco's statements in R. v. Casselman, [2014] ONCJ 198 at para. 3.
Relevant Criminal Code Provisions
15Section 252, the failure to remain offence in force on November 30, 2018, provides in part as follows:
252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with
(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person,
and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if
(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.
16Section 140 of the Criminal Code provides as follows:
140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.
(2) Every one who commits public mischief
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction
17When courts seek to arrive at a proportionate sentence, the Court must consider other cases with a view to achieving some consistency in the common law. Like cases should be treated alike while of course recognizing that no two cases are exactly the same. I have reviewed a large number of cases involving failure to remain and public mischief. Like in many areas of the law there is a wide range of sentencing dispositions depending upon the particular facts of the case.
18I make the following observations based on my consideration of the case law:
(a) At least two Ontario Superior Court judges have observed that the range of sentence for a section 252 offence ranges from three months at the low end to two years at the high-end. (see R. v. Sanford, [2014] O.J. 4596 at para 22; and R. v. Oliveira, [2016] O.J. No. 140 at para 20). Clearly, both judges were referring to section 252 cases which involved bodily injury or death to the victim or victims.
(b) It is sometimes said that it is not an element of a section 252 offence that the injuries are caused by the "fault" of the defendant (see Sanford at para 4). However, it is clearly aggravating as concerns sentence where bodily harm or death occurs or where the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm.
(c) The Ontario Court of Appeal has said that a section 252 offence is a serious offence and that the conduct underlying it is not only "contrary to the Criminal Code, but contrary to any standard of decency": see R. v. Ramdass, [1982] O.J. 177 (C.A.) at para 5. Having said that, to be clear, while a section 252 offence is serious it is not as serious as an impaired driving causing death or dangerous driving causing death conviction. Such cases involve a direct linkage or connection between the wrongdoing of the defendant and the death of the victim.
(d) Denunciation and general deterrence are the paramount principles of sentencing for a failure to remain conviction (see Oliviera at para 26).
(e) Justice Hill in Sanford observed that a s. 252 charge is often a companion charge to other charges on an information or indictment. A consecutive sentence is normally imposed for the section 252 offence although there may be some reduction or rounding down due to the principle of totality (see Sanford at para 17).
(f) A prior record for a Criminal Code driving offence is aggravating: R. v. Fortin, [1984] O.J. 158 (C.A.). A prior record for a provincial offences Highway Traffic Act offence is also aggravating (see Oliveira at para 27).
(g) It is aggravating where a defendant takes steps to evade detection or misleads police (see R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501 (C.A.) at para 59; and R. v. Arruda, [2001] O.J. 6288 at para 10 and 32 affirmed [2002] O.J. 2403).
(h) While a sentence of three months to just under 2 years of imprisonment is said to be the range of sentence for a section 252 offence where bodily injury or death occurs, many of the sentences in such cases fall somewhere in the middle of that range rather than at either end of it. Three month sentence cases are definitely at the low end of the range of sentence and are not common (see R. v. Sandu, [2014] O.J. 960 (ONCJ) for example). To be clear, the Sanford case was not a 3 month sentence case. That was the net sentence that case. The true sentence was 5 to 9 months. In my view, three months sentences in failure to remain cases involving death or bodily injury are unusual and not in keeping with the weight of authority in this area which points towards higher sentences.
(i) In my view, a significant number of cases establish that the lower to middle end of the range is a sentence of imprisonment of 5 to 9 months. Sentences in this range will usually not involve a prior criminal driving record but may involve a provincial offences driving record: see R. v. Wieczorek, 2010 ONCJ 582, [2010] O.J. 5260 (5 months); R. v. Aman, 2012 ONCJ 654, [2012] O.J. 4998 (5 months); R. v. Norton, [2014] O.J. 2845 (5 months); Oliviera (6 months); R. v. Gummer, [1983] O.J. 181 (C.A.) (6 months on the failure to remain consecutive to a 6 month sentence on a dangerous driving conviction); Ramdass (9 months); and Arruda (9 months).
(j) Sentences in the 12 to 15 months range for failure remain tend to involve a prior criminal record or a companion impaired driving offence having been committed immediately prior to the failure to remain incident. (See Fortin where a sentence of 90 days was varied to one year in a case where there were two prior convictions for impaired driving); R. v. Turnbull, [2009] O.J. No. 6432 affirmed [2011] O.J. no. 1504 (one year for the failure to remain consecutive to 3.5 years for an impaired conviction); Lapensee (one year on the failure to remain with a six month concurrent sentence for public mischief. The defendant had a record for impaired driving); R. v. Avery, [2011] O.J. No. 2678 (15 months sentence on the failure to remain-the defendant had a record for impaired driving and had six drinks on the day of the failure to remain).
(k) There are sentences in the 18 to 24 month range for a failure to remain but they are exceptional and somewhat unusual in my view. See R. v. Dhesi, [2001] O.J. No. 1343 (C.A.) (18 months sentence. The accused had twice the legal limit of alcohol in his system and a prior conviction for impaired driving); R. v. Murray, [1994] O.J. 2392 (C.A.) (a two year consecutive sentence for failure to remain was imposed to the companion conviction for criminal negligence causing death. There was also a prior criminal record; R. v. Porter, [2017] O.J. No. 5784 (24 months was imposed after trial on a failure to remain conviction. This appears to be outside the range for similar cases).
Potential Collateral Immigration Consequences
19Mr. Francis is not a Canadian citizen. He is a permanent resident of Canada. The defence submits in its written and oral submissions that there are potential immigration consequences for Mr. Francis in the sentencing process and this would appear to me to be correct. No opinion of an immigration lawyer has been tendered as occurs in some cases.
20Beyond general observations about the principle that the Court can take collateral immigration consequences into account in the sentencing process, the only substantive submission made by the defence was in its written materials at para 14 wherein it is stated as follows:
"Pursuant to the Immigration and Refugee Protection Act, a sentence of six months or more for a criminal offence punishable by 10 years or less will result in the loss of any status in Canada and render Mr. Francis in admissible in Canada. As well he would have no right of appeal."
21The foregoing submission appears to be a paraphrasing of section 36 and 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). There is a slight error in this paraphrasing in my view. In order to be inadmissible under section 36 of the IRPA the sentence must be punishable by a maximum term of imprisonment of at least 10 years or an offence under an Act of Parliament for which a term of imprisonment of more than six months imposed (my emphasis). The defence submissions do not expressly address the point where there is a sentence for the s. 252(1.1) offence and a sentence for the s. 140 offence each under six months but ordered to the served consecutively. I will address this point below.
22Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") provides as follows:
A permanent resident or foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
23If a person is inadmissible under section 36, it may result in an officer's report and Minister's referral to the Immigration Division tribunal (s. 44). After a hearing, the Immigration Division may make a removal order (s.45). Section 64 of the IRPA provides that no appeal may be made to the Immigration Appeal Division by a permanent resident if they have been found inadmissible on the grounds of "serious criminality". In this context serious criminality means a crime that was punished in Canada by a term of imprisonment of at least six months (s. 64(2)).
24The Supreme Court of Canada has said that collateral immigration consequences can be taken in account in sentencing. In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, Wagner J., writing for the Supreme court, said as follows at paras. 11, 14 and 16:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(1)(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.
The general rule continues to be that a sentence must be fit in having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or he discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
25In R. v. McKenzie, [2017] O.J. No. 151, Justice Trotter for the Ontario Court of Appeal held that in approaching a consideration of collateral immigration consequences, there is no set methodology to be followed by the sentencing judge. For example, the court does not necessarily determine a fit sentence first absent the immigration consequences although the court could approach it this way. Alternatively, the court could arrive at a fit sentence considering the immigration consequences together with the other sentencing factors. The important point is not the methodology employed. The key point is that the Court must give the collateral immigration consequences serious consideration in determining a fit sentence (see Mckenzie at paras 30-31 and 35).
26In this case, the Crown and the defence agreed that notwithstanding that the facts could support a finding under s. 252(1.3), the defendant pled not guilty to the s. 252(1.3) offence, but guilty to what defence counsel called a s. 252 "simpliciter" offence meaning s. 252(1.1). To be clear, the defendant was not prepared to plead guilty to an offence under s. 252(1.3) because it carries a potential sentence of life imprisonment and a finding of guilt under s. 252(1.2) gives rise to a potential sentence of up to 10 years imprisonment. A finding of guilt under either s.252(1.2) or (1.3) could lead to a deportation order by reason of s. 36(1) of the IRPA. In the absence of an agreement by the Crown to accept a plea to 252(1.1) (with all the aggravating facts being read in), a contested trial would have had to take place and the Crown would have to prove all the facts. There would be no admission in this regard.
27The defence proposed the plea and the Crown accepted the plea under s. 252(1.1) on the basis that Mr. Francis would be sentenced on all aggravating facts including those that would support a finding under s. 252(1.3). Both the Crown and the defence had good reasons for proceeding this way: The Crown received certainty as to the facts the defendant would admit and avoided a 10 day trial and an 11(b) Charter application. The victims' family avoided a trial. The defence also avoided a 10 day trial and avoided the risk of a finding under s. 252(1.3) which could give rise to a deportation order.
28In the circumstances, both counsel submitted and I agreed that I could accept the plea to the s. 252(1.1) offence pursuant to s. 606(4) and I did so.
As I understand the law, the potential for a deportation order might still arise by reason of s. 36(1) of the IRPA if I imposed a sentence of more than six months on the s.252(1.1) conviction or the s.140 conviction. However, I note that it is my understanding that a sentence of 6 months or under on each of these two offences consecutive to one another does not engage s. 36 of the IRPA even if the two consecutive sentences lead to a global sentence that is more than six months. See page 6 of a paper prepared by Peter Edelmann and delivered to the Canadian Bar Association National Immigration Conference in May 2013 available at http://www.cba.org/CBA/cle/PDF/IMM13_paper_edelmann.pdf. See also a case cited by Mr. Edelmann namely the Ontario Court of Appeal's decision in R. v. Hennessy, 2007 ONCA 581 in which the Court of Appeal varied a sentence and imposed multiple sentences of under 2 years to be served consecutively. This was done to prevent the loss of appeal rights under a predecessor section to s.64 of the IRPA which previously provided for the loss of appeal rights with respect to deportation orders if a sentence of 2 years or more was imposed. I provided both the Edelmann paper and the Hennessy decision to both counsel.
Aggravating and Mitigating Factors
29Although there is obviously some overlap, I will consider the aggravating and mitigating factors separately with respect to the failure to remain conviction and the public mischief conviction.
Aggravating factors on the failure to remain charge
30The aggravating factors on this conviction are as follows:
(a) Mr. Francis failed to do any of the things required by section 252(1). He failed to stop and give his name and address. He failed to offer assistance. He knew he had hit someone or was wilfully blind in this regard. He left Mr. Zucatti without seeing if he could help him. He knew that bodily harm had been caused and he was reckless as to whether death ensued or not.
(b) The accident involved hitting a 6 foot tall 225 pound man with a car. The impact threw Mr. Zucatti into the air, knocking his shoes off his feet and causing them to land several feet away near a pole on the sidewalk. While we don't know whether Mr. Zucatti died instantly we know that the accident occurred at about 7:35 PM and we know that the victim was pronounced dead at 8:04 PM.
(c) After failing to stop at the scene, Mr. Francis immediately set up on a strategy to avoid liability for having left the scene of the accident. In this regard we know that he dumped his vehicle; he made his way to near the Eaton Centre in downtown Toronto where he bought food at a Popeye's restaurant thereby generating a debit banking record. He also took an Uber from where he would tell police his car was stolen thereby generating an Uber receipt to support his tale. He telephoned the police later that night after he had generated both the debit record for the food and Uber receipt. He told them that his car had been stolen. He said the same thing to his insurer.
(d) Mr. Francis never corrected his false statements to the police and the insurance adjuster. His first acknowledgement of his involvement in the accident and his false statements to the police occurred when he pled guilty before me in September 2020. I do appreciate that his counsel, acting on Mr. Francis' instructions, had been trying to resolve the case by way of multiple judicial pretrials for some time leading to the September 2020 plea but it would not be appropriate to review the content of those judicial pre trials beyond what I have already said and which I have reviewed above all of which I understand to be common ground between the Crown and the defence. The point here is that this was not one of those cases where the person leaves the scene and turns themselves in in a day or two. Mr. Francis never turned himself in. He only started to begin the process of acknowledging his wrongdoing after he was arrested in March 2019.
Mitigating factors on the failure to remain conviction
31The mitigating factors on this conviction are as follows:
(a) It is mitigating that Mr. Francis has pled guilty. A plea of guilt is always taken by the court as a sign of remorse. In addition, Mr. Francis made a statement at the sentencing hearing wherein he apologized to Mr. Zucatti's family. I take his apology to be heartfelt and genuine. He knows that he made multiple mistakes giving rise to the findings of guilt in this case.
(b) Mr. Francis is currently 27 years old. At the time of the November 30, 2018 events he was 25 years old. Accordingly, he is a relatively youthful offender.
(c) Mr. Francis has no criminal record and no provincial offences driving record.
(d) The PSR of Mr. Francis is very positive. Among other things, how he came to Canada is significant. He was born and raised in Sri Lanka. He was raised in the context of political and civil unrest in Sri Lanka. In 2008, the Army came to his home in Sri Lanka and kidnapped him and his father and held them captive for 10 days. During that 10 days, his mother sought and was granted refugee status in Canada. In 2013, Mr. Francis and his father came to Canada. Mr. Francis enrolled in college in Canada where he later graduated in 2015. He has been gainfully employed since graduation and has received a promotion at his most recent employer.
(e) Mr. Francis has strong supports in the community from his family and community members. His prospects for rehabilitation are very good.
(f) While it is not mitigating per se, it is a circumstance of the offence that there is no evidence of drinking or improper driving involving Mr. Francis. I recognize that by failing to remain on the scene, Mr. Francis deprived the police of any opportunity to investigate him. However, the agreed facts are that he had left work at about 4:30 PM that day. He met two friends at a Tim Hortons which was about 1.9 km away from where the accident occurred. The accident occurred shortly after he left Tim Hortons. While not conclusive, these facts seem to support the proposition that alcohol was not a factor in the accident.
Aggravating factors on the public mischief conviction
32The aggravating facts on this conviction are as follows:
(a) As indicated above, the strategy to lie to the police and the insurance adjuster was fairly detailed in that it involved an attempt not only to show that Mr. Francis' car was stolen; the strategy was to attempt to show that he had been in downtown Toronto that night and that he had only found out that his car was stolen when he returned to the East Mall. As I have already indicated, he took steps to generate a debit receipt and Uber receipt to support this false narrative.
(b) It is highly aggravating that Mr. Francis sustained his lies to try to hide his involvement in the accident. This led the police to expend significant resources in proving that Mr. Francis was lying. They spent three months investigating his lies. They obtained production orders and search warrants. They analyzed cell phone records, banking records and video surveillance. They interviewed witnesses. The police do not have unlimited resources. Resources expended proving that what Mr. Francis told them was a series of lies, means that the police can't spend their time on other matters.
Mitigating factors on the public mischief conviction
33The mitigating factors on the public mischief are the same as above and are briefly summarized as follows: he has pled guilty and is remorseful; he is a youthful offender; he has no criminal record or driving record; he has a strong PSR evidencing, among other things, good character; he has good supports and a job in the community and very good prospects for rehabilitation.
The Appropriate Sentences in this case
34As I indicated at the outset, the Crown seeks a sentence of 12 to 15 months imprisonment and other companion orders. The defendant seeks a global sentence of 4 to 5 months imprisonment.
35When I consider all the facts underlying both the failure to remain and the public mischief convictions, it is my view that a sentence of 6 months less a day on the failure to remain conviction followed by a sentence of 3 months consecutive on the public mischief conviction represent the appropriate sentences of imprisonment in this case. Two years' probation with counselling as directed and 100 hours of community service will also be imposed. Further, a DNA order is also ordered. There will be a two year driving prohibition recognizing that he has not been permitted to drive since the time of his arrest.
36I have reached this conclusion on a consideration of all the evidence and the law. I note in particular as follows:
(a) Although the offences of failure to remain and public mischief have a relationship to one another, they are separate offences and in my view, it is appropriate that Mr. Francis be sentenced to consecutive sentences in respect of these two offences. In this regard, I note that Justice Martin for the Court of Appeal in Gummer held that a dangerous driving offence and the failure to remain offence "protect different societal interests". This led the court in that case to hold that the failure to remain sentence should be consecutive to the dangerous driving sentence. Here, there are also different societal interests being protected by the s. 252 and s. 140 offences. The facts underlying the failure to remain charge occurred on November 30, 2018 when Mr. Francis failed to stop after hitting Mr. Zucatti. Section 252 governs the requirement that drivers must stop their vehicle in the circumstances set out in s. 252 as it is the "decent" way to act when an accident occurs. The facts on the public mischief offence began that night but continued for months. The purpose of this charge is different than the s. 252 charge. The s. 140(1)(c) provision seeks to ensure that police resources are not wasted through telling lies to the police which then need to be examined and unraveled.
(b) The failure to remain was a serious offence and I consider it aggravating that Mr. Francis never turned himself in on the failure to remain charge. He waited for the police to arrest him months later. However, Mr. Francis benefits from the fact that he is youthful; he has no criminal record; he is remorseful; he has no driving record and he appears to have strong prospects for rehabilitation. Further, there is no evidence of speeding or other improper driving with respect to the failure to remain conviction.
(c) I consider that the global sentence of 9 months less a day (broken down to 6 months less a day on the s. 252(1.1) conviction and 3 months consecutive on the public mischief conviction) properly situates this case on the range of sentences reviewed as set out in the case law above. I consider that the public mischief conviction merited a 4 month sentence but I have lowered it to 3 months to reflect the principle of totality and the partial overlap between the two convictions.
(d) The facts supporting the public mischief conviction are aggravating of the failure to remain conviction and, in my view, are as aggravating or more so than arises in any of the cases I have reviewed. The lying to police, travelling to downtown Toronto and creating the receipts as I have already been over and sustaining these lies for months was unconscionable. I understand that Mr. Francis likely panicked at the time of the accident but the cover-up lasted months and required the police to expend significant resources. I am well aware of Mr. Francis' interaction with the army in Sri Lanka, but this can't excuse his actions in the months that followed the accident. Whatever panic he felt at the outset cannot be taken to have continued up until his arrest. He could have sought guidance from a lawyer, a trusted family member or a respected community member and corrected the path of lies that he was on. He simply decided that he was going to wait and see whether the police would be able to charge and prove the case against him.
(e) In my view, the public mischief cases referred to by defence counsel with dispositions in the 30 day range for public mischief have little relevance to the case at bar. For example, in R. v. McKerness, 2007 ONCA 452, there was a failure to remain, but no death occurred-only bodily injury and the extent of those injuries are not clear from the reported case. Further, while the defendant in that case told police her car was stolen, there were no further elaborate lies to speak of that are apparent from the reported case. The public mischief cases in R. v. Pitman, 2014 ONSC 5091 and R. v. Akinyemi, 2014 ONCJ 278 largely involved reporting cars stolen so as to generate a fraud upon an insurance company. These are not cases which have any application to a case like the one at bar where a defendant repeatedly lies in order to prevent himself from being charged in connection with a failure to remain where a person died.
(f) On my reading of the IRPA as well as the Edelmann paper mentioned above and the Hennessy case, a sentence of 6 months less a day on the failure to remain and 3 months consecutive on the public mischief is not going to lead to a deportation order by reason of s. 36 of the IRPA. Accordingly, I have taken the potential immigration consequences into account in arriving at the sentences in this case. However, let me be clear that if there had only been a failure to remain conviction in this case and no public mischief charge but the facts had been the same, a sentence of six months less a day would not be a fit and proportionate sentence in my view. Put another way, in my view a global sentence totaling six months less a day in this case for both the failure to remain conviction and the public mischief sentence would not be a fit sentence in this case and I would not have imposed it regardless of the immigration consequences.
(g) The defence submitted that I should consider reducing the sentence in this case due to Covid-19. In my view, there is nothing about the circumstances of this case or any unique vulnerabilities associated with Mr. Francis that would justify shortening the sentences in this case: see R. v. Lariviere, [2020] O.J. 2264 (C.A.) at paras. 16-17.
Summary
37In my view, the sentence of 6 months less a day on the failure to remain conviction (s.252(1.1)) and a 3 month sentence to be served consecutively on the public mischief conviction will send the appropriate message of denunciation and general deterrence while at the same time promoting rehabilitation. To the extent that Mr. Francis still requires specific deterrence, it will send that message to him as well. What happened in this case never should have happened. There will be a deduction for time served of 2 days credited at 1.5 per day for a total of 3 days. I will check with counsel to see that I have the number of days correct.
38There will be two years' probation with counselling as directed and 100 hours of community service. Reporting by telephone within 3 working days of his release and thereafter as required. There will be a DNA order and a two-year driving prohibition.
Released: December 10, 2020
Signed: Justice Paul F. Monahan
