Court File and Parties
Date: 2022.03.18 Court File No.: St. Catharines Ontario Court of Justice
Between: Her Majesty The Queen — And — Vernon Hill
Before: Justice Fergus ODonnell
Reasons For Sentence Delivered on 17 March, 2022 Written Reasons released on 18 March, 2022
Counsel: Mr. G. Leach, for the Crown Mr. A. Manek, for the defendant, Vernon Hill
Fergus ODonnell J.:
Overview
Vernon Hill has pleaded guilty to the following offences committed on the following four dates (all but the cannabis offence are Criminal Code offences):
a. On 9 October, 2019 he drove while disqualified;
b. On 12 November, 2019 he drove while impaired by alcohol and while subject to a driving prohibition and breached the residence condition of a bail order;
c. On 7 April, 2021 he drove while disqualified and while subject to a bail condition that he not operate a motor vehicle
d. On 2 September, 2021 he drove while impaired, while disqualified and in breach of two bail conditions, namely not to operate a motor vehicle and not to do so without a driver's licence
e. Also on 2 September, 2021 he drove while cannabis was available, contrary to s. 12(1) of the Cannabis Control Act (Ontario)
The Facts
On 9 October, 2019 Mr. Hill crossed the Rainbow Bridge into Canada. Canada Border Services Agency officers determined that he was a prohibited driver and called the police. In fact, Mr. Hill was medically suspended and under a suspension for unpaid fines and was subject to several prohibition orders at that time. One of the driving prohibitions was as recent as two months earlier.
Mr. Hill was released the following day, with a condition that he live with his surety.
On 12 November, 2019 the police attended a single motor-vehicle collision scene in Caledonia. Mr. Hill's vehicle was upside-down in a ditch. He said that he had swerved to avoid a deer. His blood-alcohol readings were 205 and 191 mg of alcohol per 100 ml of blood, or roughly two-and-a-half times the lawful limit. Mr. Hill said that he had broken up with his surety and was no longer living with her. This was only a month after Mr. Hill was arrested and released for driving while prohibited at the border.
On 7 April, 2021 the police in Tuscarora again found Mr. Hill with his pick-up truck in the ditch. He admitted he was the driver and said he was okay. He was a prohibited driver and was on a bail condition not to operate a motor vehicle. He said he was on his own property and was backing the truck up.
Five months later, on 2 September, 2021 police in Caledonia found Mr. Hill driving through a drive-through. He was a prohibited driver, again with a bail condition not to drive. There was an open beer can in the door pocket and Mr. Hill was slurring his words slightly. He said he had had four beers; his blood alcohol readings were eighty and ninety. There was also a quantity of cannabis on the centre console close to him. There was also a small amount of cocaine.
Mr. Hill’s Background
Mr. Hill was born in 1979. He is now forty-three years old. He is an indigenous person.
I have a pre-sentence report and a Gladue report for Mr. Hill.
From those reports I know that Mr. Hill was living with his uncle at the time of writing; I suspect this is the terminally-ill uncle Mr. Manek refers to Mr. Hill as caring for. Mr. Hill is separated and has eight children. He himself was the eldest of three children. His father stayed with the family until Mr. Hill was eight years old. His father abused alcohol, but his mother did not, and Mr. Hill witnessed domestic violence. He continued to see his father but was angered by his abandonment. He spent a lot of time with his grandparents, whose home environment he described as healthy. Until he was seventeen, the year his grandmother died, he was engaged in Longhouse ceremonies. He said he was devastated by her death.
Mr. Hill left the family home at the age of fifteen to attend school in New York and pursue sports there and he had his first child by the age of seventeen. However, he dropped out of high school in grade nine due to his own drinking and achieved only five credits. He began to work when his partner got pregnant and has mostly worked in iron working, like his father, mostly in the United States until Covid-19 made crossing the border more complicated. This early relationship resulted in seven children. Mr. Hill was away for work a lot and played sports on weekends. He was involved in his children's upbringing. He and his partner have been separated for several years and he now has an eighth child with a different mother, who remains with the mother. Mr. Hill's eldest son lives with Mr. Hill's mother and is very hurt by Mr. Hill's behaviour. One of Mr. Hill's brothers has tried to help Mr. Hill but is frustrated by Mr. Hill's inconstancy. Mr. Hill's youngest brother loves him but does not like him and is frustrated by how poorly Mr. Hill has treated his own children.
Mr. Hill said he had lost work over the years because of his drinking. His drinking began as early as fifteen years old, perhaps earlier. It has caused problems with education, work, relationships and the criminal justice system. With his brother's help, Mr. Hill has maintained sobriety for up to three months at a time, but would invariably fall back into old patterns. He also has a fifteen-year long history of daily cocaine consumption. Mr. Hill has attended court-ordered counselling in the past, but continued to drink throughout that time. He told the probation officer writing the pre-sentence report that he does not believe treatment would help with his substance abuse but was interested in attending treatment on Manitoulin Island.
Mr. Hill has a long criminal record. Impaired driving, driving while disqualified and breaches of court orders figure prominently in that record. For example, in his pleas before me he acquired his fourth and fifth impaired driving convictions and his fifth, sixth, seventh and eighth convictions for driving while disqualified. The record runs from 1999 through to 2019, with a gap from 2014 to 2019. In addition to driving and breach convictions, the record has a couple of weapons offences and a couple of assault offences. Mr. Hill's longest sentence was one-hundred-and-twenty-four days imposed in 2007 for assault offences. His most recent drink-driving offence got him the equivalent of a sixty day sentence on 28 August, 2019, with five of those days being pre-sentence custody. Assuming he served two-thirds of that sentence, he would have been released about eleven days before the 9 October, 2019 driving while disqualified offence.
The Crown and Defence Positions
The Crown seeks a maximum reformatory sentence and a maximum probation term, along with a driving prohibition of at least twenty years, ideally for life. Mr. Hill argues that a conditional sentence would be fit, but certainly not longer than four months of real jail if real jail is unavoidable. He agrees that the mandatory probation term is appropriate but argues that a twenty-year driving prohibition would be crushing, although the Ministry of Transportation may step in on its own account in relation to the status of Mr. Hill's driving privileges.
Ms. Sheehan for the Crown portrays this case as a tragedy. She recognizes that Mr. Hill has faced issues with alcohol his whole life and has had medical consequences including near-fatal consequences from his addiction. Loss of life and family breakdown arising from alcoholism are no strangers to him. There was a long gap between his first guilty plea and his sentencing, with the hope that Mr. Hill would use community resources finally to address his demons, but that has not happened; to the contrary, he has continued his two-decade long pattern. In fact, the most recent offences were committed two days before he was scheduled to be sentenced on the first offences.
Mr. Manek asks me to take into account that there was no accident or injury and that is a factor to be taken into account. He pointed to Mr. Hill's deeply troubling background as set out above, including the fact that he witnessed his father's alcohol dependence as a child and drank to please his father. He has been subject to trauma arising from his grandmother's death. His family history has all of the classic features of colonial impact on indigenous Canadians, including a great-grandmother who spent seventeen years in a residential school, an experience that cascaded down through the generations and left Mr. Hill's mother unable to show any affection towards her children. The history of residential schools and intergenerational trauma, Mr. Manek says, not uncommonly leads to addiction issues in following generations.
Mr. Manek also points out that Mr. Hill suffers from survivor's guilt arising out of his father's death and his friend's death.
Mr. Hill's health issues include suffering from delirium tremens, a torn esophagus and cirrhosis of the liver. He has had to be revived after, in his words, dying in hospital. His father died of cirrhosis six years ago.
The Appropriate Sentence.
An appropriate sentence must take into account many, many considerations. In general I must consider the seriousness of the offences and Mr. Hill's moral accountability for those offences. A sentence must aim to make society safe by using a variety of tools such as jail, conditional sentences, probation and the like to achieve objectives such as general and specific deterrence, denunciation, rehabilitation and reparations to society for harm done. I must consider the fact that Mr. Hill has pleaded guilty. I cannot impose a fitting sentence without considering that Gladue factors are clearly in play here.
The offences here are serious. For almost all of us, driving is the most dangerous thing we do in our lives. It is for that reason that driving is highly regulated. We think of it as a right, but it is actually a privilege. If we do not drive with care, terrible outcomes ensue. Many hundreds of people die from impaired driving every year in this country alone. Many more are injured, often with serious and enduring injuries. The key, critical driving skills such as perception, judgment and reaction time are all compromised by alcohol or drug usage close to or at the time of driving. When people fail to conform to the requirements of a prudent driver by driving while impaired, they forsake their privilege to drive. They have absolutely no right to be on the road until their driving privilege is lawfully reinstated.
There is an expectation that people will learn from experience. Experience is why a child who touches a hot stove will not do so again. Maturity teaches us that giving in to our own needs and desires may adversely impact other people, so we learn restraint. Social responsibility tells us that if we were all to ignore society's rules and needs there would be no society, no safety, no future.
Mr. Hill's addiction is both real and tragic. It undoubtedly is rooted in the indigenous experience in Canada. He and those around him have paid a very high price for his addiction, both socially and in terms of his own physical health. Alas, he has a long history of failing to establish any traction in dealing with his alcoholism, despite his knowledge of its impact on his health and despite his father's experience.
If Mr. Hill limited himself to drinking constantly and to excess, it would only be tragic, but he has not done that. He has repeatedly driven while impaired and he has repeatedly driven despite society telling him he does not have the right. In doing so he has violated driving prohibitions and a bail condition. It is a minor miracle that he has not killed someone by his driving already; two of his three impaired drivings in this round involved single-vehicle collisions.
As I noted earlier, with this round of convictions, Mr. Hill has added two impaired driving convictions (his fourth and fifth) and four convictions for driving while prohibited (his fifth through eighth).
Given Mr. Hill's history, this is a case in which specific deterrence is a key driving factor in determining a fit sentence. Previous sentences have clearly failed entirely to change Mr. Hill's behaviour; neither have his health problems. Mr. Hill's intransigence constitutes a clear and present danger to public safety. The sentence must also reflect the persistent multitude of offences.
I have stated that the determination of Mr. Hill's sentence must consider Gladue principles and significant Gladue factors are clearly at play. That being said, although Gladue principles will often lead to a sentence other than "real jail" and will often result in a reduced sentence of imprisonment, it has clearly been recognized that Gladue is not a get out of jail free card.
Mr. Manek asks for a conditional sentence for Mr. Hill. I appreciate that a conditional sentence can, in the right circumstances, serve the purposes of denunciation and deterrence, but I am afraid that a conditional sentence is not available here because it would not safeguard the safety of the community given Mr. Hill's track record. There is also absolutely no rational basis to conclude that Mr. Hill would comply with the terms of a conditional sentence. I do not agree that Mr. Manek's alternate suggestion of up to four months in jail would come anywhere close to serving the objectives of sentencing. I stress that Mr. Hill is not being sentenced for his failure to address his alcoholism over many years, which will eventually kill him, but for his repeated, unchanging choices to drive while impaired and/or while suspended or prohibited, which puts the lives of other members of society in danger and which manifests a persistent disregard for society's rules.
I am of the view that the appropriate total sentence for Mr. Hill is a sentence of nineteen months in prison, composed as follows:
a. On the 9 October, 2019 driving while disqualified, two months’ imprisonment.
b. On the 12 November, 2019 impaired driving, driving while prohibited and breach of bail conditions, four months’ imprisonment concurrent on each charge, but consecutive to the two months above.
c. On the 7 April, 2021 driving while disqualified and breach of bail, a sentence of four months, concurrent on each charge but consecutive to the cumulative six months on the previous sentences.
d. On the 2 September, 2021 charges:
i. Driving while impaired: six months’ imprisonment consecutive. ii. Driving while disqualified: six months concurrent. iii. Breach of bail, not to operate a motor vehicle: two months consecutive. iv. Breach of bail, not operate a motor vehicle without a licence: two months concurrent.e. Cannabis Control Act: one month consecutive.
For a total sentence of nineteen months.
I recommend that Mr. Hill serve his sentence at the Ontario Correctional Institute, the St. Lawrence Valley Correctional Centre or the Algoma Treatment Centre if possible.
After completing his custodial sentence, Mr. Hill will thereafter be on probation for three years on the following conditions;
a. Report to probation within three days of your release and thereafter as required.
b. Attend for assessment/counselling as directed by probation, including in-patient treatment, for alcoholism, substance abuse and any other area identified by probation.
c. Sign releases and provide proof of compliance to allow probation to monitor compliance.
d. Make reasonable efforts to obtain and maintain employment.
e. Not operate or have care and control of any conveyance.
f. Not occupy the driver's seat of any conveyance.
There will be a driving prohibition for fifteen years in addition to the period of imprisonment.
Mr. Hill shall provide a sample of his DNA for inclusion in the DNA data bank on the secondary designated offences of breaching his bail conditions.
Were it not for the gap in Mr. Hill’s record before 2019, the guilty pleas, the significant Gladue factors and the principle of totality, I would have imposed a longer sentence, likely the maximum reformatory sentence sought by the Crown.
Released: 18 March, 2022