Court of Appeal for Ontario

Date: 2017-12-28 Docket: C60977

Judges: Sharpe, Watt and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Tabitha Frickey Appellant

Counsel

Erec Rolfe, for the appellant Jennifer McKee, for the respondent

Heard: December 21, 2017

Appeal Information

On appeal from the sentence imposed on February 13, 2015 by Justice Robert Reilly of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of dangerous operation of a motor vehicle causing bodily harm under s. 249(3) of the Criminal Code, which provides for a maximum term of imprisonment of ten years. She was sentenced to six months in custody, six months of probation, and a ten-year driving prohibition order. She has served her custodial sentence and completed probation. She appeals from the ten-year driving prohibition order.

[2] The appellant submits that the ten-year driving prohibition was manifestly unfit and seeks a five-year driving prohibition. She contends that the trial judge erred in treating general deterrence and denunciation as the primary sentencing objectives when she was a young, first-time offender.

[3] We disagree.

[4] The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens. In these circumstances, the driving prohibition serves as the most practical means to ensure the protection of the public.

[5] Notwithstanding the appellant's youth and lack of a criminal record, the sentencing objectives of general deterrence and denunciation were paramount because of the seriousness of the appellant's offence and the aggravating factors of her previous poor driving record and the devastating harm caused to the victims of the accident.

[6] The appellant had amassed three speeding convictions on her driving record prior to her commission of the index offence when she was 18 years old. These convictions did not serve as a deterrent. The circumstances of this offence were egregious: the appellant's vehicle hurtled across three lanes of traffic at an enormous speed, smashed into crash attenuation barrels, became airborne and landed on top of the victims' car. The impact almost killed one of the victims, who remains severely disabled by his injuries. We also note that the appellant committed a fourth speeding offence, as well as a distracted driving offence, following the present offence.

[7] Against these aggravating factors, the trial judge carefully considered the mitigating circumstances of the appellant's youth, her sincere remorse, her otherwise unblemished character, her excellent academic and work record, and her pregnancy.

[8] Crown counsel submitted that a custodial sentence of 18 months, plus probation, and a five-year driving prohibition order would be appropriate. Defence counsel argued that a custodial sentence capped at nine months and a five-year driving prohibition should be considered.

[9] The trial judge indicated to the parties that he was considering imposing a longer driving prohibition, up to the ten-year maximum under s. 259(2)(b) of the Criminal Code, and asked for submissions. Defence counsel urged the trial judge to impose a shorter custodial sentence and a longer driving prohibition, in order to meet the objectives of deterrence and denunciation, and to facilitate the appellant's rehabilitation and avoid her baby being born in custody. The trial judge followed the approach suggested by the defence.

[10] In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2(e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.

[11] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A. David Watt J.A. L.B. Roberts J.A.