Ontario Court of Justice
(East Region)
Her Majesty the Queen v. Jeffrey Lyle Casselman
Before: Justice David M. Paciocco – Ottawa, ON
Reasons for Sentence
Released: April 17, 2014
Counsel
For the Crown: Mr. J. Neubauer
For Mr. Casselman: Mr. L. Russomanno
I. Introduction
[1] On 9 February 2013, on a concession road approaching the town-line of Metcalfe Ontario, Jeffrey Casselman drove into a snowmobile operated by 16 year old Derek Smith causing Mr. Smith life-threatening, lifelong injury. Mr. Casselman was impaired by alcohol at the time. The collision drove Mr. Smith up onto the windshield of the vehicle and he was deposited metres away in the middle of the road. Mr. Casselman's severely damaged vehicle careened into the opposite snowbank after the collision. Mr. Casselman did not get out and check on Mr. Smith or summon help. Instead, frantically, he revved his engine until his car came free and tore away, driving on three tires and the rim of the right front tire. He sped as best he could, ultimately seeking haven in a side street before banking his car in yet another snowbank to avoid colliding with a parked truck. When the police arrived sometime later Mr. Casselman said he had hit a deer. Finding remnants of Mr. Smith's helmet in the back seat of the car and eye witness testimony proved otherwise. After trial, I found Mr. Casselman guilty of impaired driving causing bodily harm (255(2)), failing to stop at the scene of an accident that caused bodily harm (s.252(1.2)), dangerous driving (s.249(3)), and obstructing a peace officer in the course of his duty (s.129(a)). I also convicted Mr. Casselman of breaching the probation order of May 14, 2012, which was in force at the time; given the other offences he committed it is evident that on 9 February 2013 Mr. Casselman had failed to keep the peace and be of good behaviour after being ordered to do so. This is his sentencing on each of these offences, save for the dangerous driving charge. That charge has been stayed at the request of the Crown to avoid double jeopardy because of its heavy dependence on Mr. Casselman's impairment.
[2] The parties agree that significant incarceration is required but their sentencing recommendations are far apart. The defence is asking for a sentence of 3 years in custody minus credit on a 1.5:1 ratio for the considerable time that Mr. Casselman has served awaiting his trial and sentencing. Mr. Casselman has remained in custody since his arrest more than 14 months ago on February 10, 2013. The Crown is seeking a period of incarceration of 5 years and 10 months minus time served on a one for one basis. I must, of course, select a fit sentence according to law, and am not obliged to accept either of the recommendations put before me.
[3] The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s.718.2). The sentencing objectives suggested by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2 (c) – (e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases.
[4] In this case the identification of factors for consideration is not difficult. Emphasis must be given in this sentence to more punitive sentencing objectives, namely denunciation and deterrence, primarily general deterrence. Of course, hope for rehabilitation and reintegration should never be abandoned. Still, defence counsel concedes appropriately in this case that binding case law requires that I emphasize denunciation and deterrence, and recognizes that the prospects of Mr. Casselman's rehabilitation are bleak. Just how unlikely rehabilitation is will become apparent when I consider the offender-based factors that I must consult. I will begin the analysis, however, with the offence-based considerations related to the gravity of the crimes Mr. Casselman has committed.
II. The Gravity of the Offence
[5] The serious offences Mr. Casselman committed have already been described in broad strokes. There is nothing mitigating in the way these offences occurred. While Mr. Casselman's degree of manifest impairment was lower than is often observed, this simply serves to spare Mr. Casselman the additional censure that more extreme forms of intoxication would attract. The same holds true with the absence of proof of bad driving prior to the first accident, the one that maimed Mr. Smith. Had there been bad driving beforehand, this too would have aggravated things, but the absence of proof of bad driving beforehand does not mitigate the fact that it was Mr. Casselman's impaired driving that caused significant injury to Mr. Smith.
[6] In contrast, there is much about the events of February 9, 2013 that aggravates the gravity of the offences. I will begin with the impaired driving charge. While any decision to drink to impairment and then drive puts the public at risk of grave injury, in this case that risk was tragically realized when Mr. Casselman's impaired driving caused him to collide with Mr. Smith. The consequences of this crime were devastating. Mr. Smith suffered extensive internal bruising to major organs, a brain bleed, and most of the bones in his right leg were broken. He was near death for a time, convalesced in hospital for months, and will struggle with an acquired brain injury for the foreseeable future. He is also fighting to keep his leg, which is not healing properly and may require amputation. He anticipates extensive, highly invasive surgery. Not surprisingly, Mr. Smith's injuries have had a profound effect on the quality of his life. After the accident he was unable to graduate with his class, unable to continue to volunteer in the community, unable to work and unable to continue with many of his interests. It is not clear that he will ever be able to work in his chosen field as a heavy equipment mechanic since that work is physically demanding. Mr. Smith's life has been altered forever and the degree of suffering caused him cannot be doubted.
[7] And his family has suffered. As the poignant victim impact statement prepared by his mother describes, the family lost Derek's father in an automobile accident eight years before. It was against that tragedy that they had to deal with the trauma of seeing Derek so gravely injured. The family has had to make considerable quality of life and financial sacrifices to support Derek.
[8] In addition to the serious injuries caused by his offence, Mr. Casselman's offences are aggravated by his reaction after striking Mr. Smith. As the "failing to remain" conviction confirms, his response was not to offer aid, or secure help, or even take responsibility. Mr. Casselman's reaction was crass self-preservation when he knew that the accident would have seriously injured if not killed the snowmobile operator. Mr. Casselman left Mr. Smith lying on the road and sped off, sparks flying. In fleeing he further imperiled Mr. Smith's life. Mr. Casselman either knew that Derek Smith was lying in the middle of the road near the vehicle as it backed up and sped away, or he did not know where Mr. Smith was and negligently took the risk that Mr. Smith might be lying in his path. Then when confronted by the police he lied, claiming he had hit a deer. And when it became apparent that those who were trying to help him after the second accident might call the police, he did everything he could to discourage them, even chiding Ms. Evans Daley for summoning the police by telling her she was not sorry for having done so. Mr. Casselman's attempt to evade responsibility and his lack of concern for Mr. Smith was not momentary and instinctive. His attempt to accomplish flight persisted for more than an hour.
[9] There are other aggravating factors at play relating to the gravity of the offence, arising from the circumstances in which Mr. Casselman was even on the road. When Mr. Casselman committed these offences he was a suspended driver. He was also without insurance, putting the public at great risk of inadequate financial support in the event of an accident. And he was operating a motor vehicle, impaired, on a dark country road, with only one operating headlight.
[10] As indicated, both the Crown and the defence agree that the nature of the offences committed by Mr. Casselman require a sentence that focuses on denunciation and deterrence. Each of these sentencing goals requires punitive rather than rehabilitative consequences. The goal of denunciation is to ensure that, where required, a sentence must be sufficiently harsh to express society's disapproval if not its revulsion at the kind of conduct engaged in. Imposing a denunciatory sentence not only appeals to the public need that just sanctions be imposed to hold offenders accountable, a denunciatory sentence also serves to reinforce important societal values by confirming that the law holds the values protected by the law to be important. This is thought to encourage law abiding behaviour through appropriate socialization: See R. v. M.(C.A.), [1996] 1 S.C.R. 500. The goal of deterrence, by contrast, is to dissuade criminal offending through punishment. A deterrent sentence is one that intimidates further offending by demonstrating to the public in general, or the offender in specific, that the cost of punishment is not worth any benefits the criminal behaviour might offer.
[11] Binding authority in Ontario makes clear that "general deterrence is the paramount objective in sentencing for offences of drinking and driving, especially where serious consequences result," and that denunciation is an essential consideration: R. v. Biancofiore, 35 O.R. (3d) 782 at 790; R. v. McVeigh, 11 O.A.C. 345. The same holds true with respect to the offence of fail to remain. In R. v. Ramdass, [1982] O.J. No. 177 at para. 6 the Ontario Court of Appeal explained that general deterrence is a paramount principle for this offence, and quoted from an earlier decision that focused on deterrence in its "widest sense," which encompasses what I have described here as denunciation:
"The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act."
As Justice Alder said in R. v. Davis, [2010] O.J. No. 4742 at para. 22 (Ont.C.J.) with reference to the offence of failing to remain:
"[This is] an offence that generally carries a high level of moral blameworthiness. It is, as the Ontario Court of Appeal has stated, not only contrary to the Criminal Code but contrary to any standard of decency and humanity."
[12] In short, Mr. Casselman must be sentenced for committing a gravely serious offence that went beyond merely endangering the public but had tragic consequences for Mr. Smith and his family, and he must be sentenced for the significant moral departure he showed in leaving Mr. Smith near death on the roadway in a desperate and inhumane act of self-preservation. The sentence for the impaired driving causing bodily harm offence must be adequate to deter others who might be inclined to take the risk of drinking and driving, and must be sufficient to express societal denunciation of Mr. Casselman's decision to drink and drive in the circumstances he did. The sentence for the fail to remain after a bodily harm accident offence must be sufficient to discourage flight after an accident has occurred, notwithstanding the powerful incentives that may exist to attempt avoid the heavy responsibility an accident might entail, and it must also be adequate to show that right-thinking people want to distance themselves from such conduct and hold accountable those who flee from accidents, particularly were injury has occurred.
III. The Degree of Responsibility of the Offender
[13] Factors relating to the degree of responsibility of the offender – the offender-based considerations – tend to focus on other objectives of sentencing, most commonly specific deterrence and rehabilitation, and at times the need for incapacitation by locking the offender up to protect the public. They inform whether prominence should be given to intimidating the offender to discourage future crimes, or whether the focus should be on rehabilitating the offender by addressing the conditions that cause him to offend. In Mr. Casselman's case considering his degree of responsibility and his personal history the focus of sentencing must be on the stick of specific deterrence more than on the carrot of rehabilitation.
[14] Mr. Casselman will soon be 47 years of age. He is a serious recidivist. His criminal record is significant. He has 48 convictions, including six criminal driving convictions acquired in connection with five discrete events; three being alcohol driving convictions and two for driving while prohibited. The record includes nine convictions for breaching court orders. The probation order he breached in this case was imposed, in part, for two other breaches of court orders that he had committed. Mr. Casselman's driving record is equally startling. It discloses a long history of rank irresponsibility in the operation of motor vehicles, including an unbroken string of more than 40 convictions, the first within a month of his 16th birthday. There are related convictions, including a provincial Highway Traffic Act conviction for leaving the scene of the accident in 1989, and another for failing to report an accident that same year. He has five convictions for driving while suspended and numerous other convictions for failing to surrender a permit or for driving a vehicle without a permit. He also has four convictions for driving without insurance in the last 10 years.
[15] It is evident that longstanding substance abuse problems have contributed to Mr. Casselman's extensive and varied criminal history. He has been abusing alcohol and drugs since he was a young man, something he attributes, perhaps with good reason, to a history of sexual abuse by a family friend and to serious pain related to "Cushing's Syndrome" which is at the root of extensive health problems that plague him. Mr. Casselman has received extensive assistance over the years for his addiction, including a period at the Secure Treatment Unit – St. Lawrence Valley Correctional and Treatment Centre in 2005. The Presentence Report filed in this matter confirms that these interventions have been unsuccessful, largely because of Mr. Casselman's lack of motivation. It notes that Mr. Casselman did not respond to community supervision, failed to attend appointments and did not really work on the steps set down by Alcoholics Anonymous when he did attend. The presentence report records that Mr. Casselman was not motivated to follow the post-treatment plan identified at St. Lawrence Valley and he continues to minimize his substance abuse problems. His addictions have not only contributed to his criminal history, they have plagued the quality of his own life. He himself recognizes that they prevented him from finishing school and ruined his marriage and a subsequent relationship, yet he has demonstrated little commitment to try to overcome them.
[16] The defence points out that Mr. Casselman's remorse is an important mitigating factor that reduces the need for a punitive sentence. To be sure, Mr. Casselman offered an eloquent apology to Mr. Smith and the family even offering to trade places with Mr. Smith were that possible, and the Crown has conceded that Mr. Casselman is remorseful. In my view the remorse that Mr. Casselman is now expressing should not be over-valued. The presentence report records an unscripted description by him of the regret he feels. Naturally he expressed remorse in that statement for having injured Mr. Smith, but he clearly did not accept full responsibility for what occurred. He said he was unhappy with the facts that came out in court, and says that regardless of whose fault it was, it bothers him that he hurt someone. Even bearing in mind his more complete claim of remorse made in court, it is evident to me that Mr. Casselman lacks insight into the degree of his responsibility. Indeed, although his in-court statement said he should not have been driving for any reason, in his presentence report statement Mr. Casselman said he should not have been driving because he did not have a licence, making no mention of the fact he had been drinking. And he made no apology in his probation interview or in his in-court statement for having left the scene of the accident. To be clear, the failure by Mr. Casselman to take full responsibility for his actions cannot lead to a higher sentence than he otherwise deserves. It does, however, significantly tincture or dull any credit that he can be given for his professed remorse.
[17] In all of the circumstances including his status as a suspended uninsured driver, Mr. Casselman's degree of responsibility for the offences he has committed is decidedly high. As indicated, these offender-based factors align in a way that requires emphasis to be given to denunciation, general deterrence, and to specific deterrence, more than rehabilitation. This must be so notwithstanding the extensive personal problems that Mr. Casselman has, and notwithstanding his burning need for effective counselling and treatment. His extensive and highly relevant criminal record and driving history show that his criminality and disregard for the law and the welfare of others is so deep-rooted that rehabilitative efforts are unlikely to take root. The extensive failed efforts that have been made over the years to address his alcohol dependency also suggest that he is apt to remain a danger to reoffend, even with more intervention. The point where Mr. Casselman's rehabilitation and reintegration can be priority objectives for his sentencing has passed.
[18] In considering an appropriate deterrent and denunciatory sentence for Mr. Casselman I agree with the Crown that his record is a significant aggravating factor, notwithstanding the 13 year gap since Mr. Casselman's last criminal driving conviction. It is not as though Mr. Casselman was rehabilitated during that gap period and has now stumbled. He accumulated 22 criminal convictions during that period, including for an imposing variety of serious offences against persons, property and relating to drug abuse and drug trafficking. He has also had two dozen non-criminal driving convictions during the 13 years before this offence: see R. v. Patriquin, [2011] O.J. No. 6246, affirmed 2012 ONCA 67.
[19] Mr. Casselman's record is an aggravating factor in sentencing him not only for the driving offences, but also for breaching his probation and for obstructing a peace officer in the course of his duties. As indicated, he has 9 previous convictions for breaching court orders. While he has no prior obstruct peace officer convictions, this is not the first time he has tried to avoid detection. This can be seen from his conviction for refusing to provide a breath sample on the occasion in July 2000 when he was convicted of impaired driving, and his many traffic offences, including his convictions for leaving the scene of an accident and failing to report an accident.
[20] The final factor relating to Mr. Casselman requiring attention is his poor personal health. There is no doubt that Mr. Casselman is in frail-health, beyond his years. He suffers from depression and the side effects of the numerous medications he must take to deal with the pain he experiences and the other symptoms he endures. Of course, ill-health is not a get-out-of-jail card, but it is relevant, in my view, in evaluating how much denunciation and specific deterrence is required. To the extent that jail denounces by ensuring that offenders suffer the loss of their freedom, time served in custody can be harder for those who are seriously ill than it is for others. In other words, a shorter period of custody may accomplish a similar degree of denunciation and specific deterrence for a seriously ill offender than a longer period of incarceration would for a healthy person. I have taken this into account in the total sentence I am about to impose.
IV. The Sentence
[21] What, then, is an appropriate sentence in light of the sentencing goals I am to pursue, bearing in mind that (1) the overall sentence should be comparable to similar sentences imposed in similar cases, (2) it should represent the shortest period of incarceration capable of accomplishing the sentencing objectives I have selected, (3) it should not exceed in proportion the degree of responsibility and gravity of the offence that I have identified, and (4) the global sentence I impose should not be excessive?
[22] I agree with both counsel that no two cases are alike, inhibiting the development of a clear and certain sentencing range for each offence. Ultimately I must exercise discretion - my best judgment - in determining where this case fits within the broad ranges that are reflected in the authority.
[23] With respect to the foundational offence, impaired driving causing bodily harm contrary to section 255(2), the Crown suggests a range of four to four and a half years. The Crown supports this position by relying upon a number of cases where accused persons with outrageous driving records have received sentences in that range for impaired driving convictions where no bodily harm or no serious bodily harm has occurred, including R. v. Malicia, [2006] O.J. No. 3676 (4 ½ years); R. v. Patriquin, supra, (4 ½ years), R. v. Burbidge, 2008 ONCA 765, [2008] O.J. No. 4595 (3 ½ years); and R. v. Noel, [2006] O.J. No. 3183 (43 months). Although all of these offenders had more related criminal driving convictions than Mr. Casselman, in the Crown's view his serious criminal and driving records coupled with the injuries suffered by Mr. Smith compensate for that, bringing Mr. Casselman into this range.
[24] The defence argued for a global sentence for all offences that is below the range that was suggested by the Crown for the impaired driving causing bodily harm offence alone. To support its suggested range the defence relied on a case involving a dangerous driving causing bodily harm conviction where alcohol was involved and the accused left the scene (R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689 (3 years)), two dangerous driving causing death cases where the accused fled the scene (R. v. Phillips, [2003] O.J. No. 4641 (Ont.S.C.J.), affirmed, [2005] O.J. No. 155 (36 month global sentence); R. v. Boukchev, [2003] O.J. No. 3944 (5 year global sentence)), as well as a criminal negligence causing death case where the accused failed to remain (R. v. Nandlall, [2009] O.J. No. 3451 (Ont.S.C.J.) (3 years 6 months globally)). The defence theory in relying on these cases is they show that the sentence proposed by the Crown is not even appropriate as a global sentence where the driving itself is worse than it was in this case, the victim of the offence has died, and the accused has left the scene.
[25] I agree with the defence that the range suggested by the Crown for this offence is excessive. In saying this I do not want in any way to suggest that this offence is not extremely serious given the injuries sustained by Mr. Smith and the disgraceful criminal and driving record that Mr. Casselman carries. While the Ontario Court of Appeal has recently cautioned against attempting to define rigid ranges (R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 at para 21), guidance on the kind of sentence that is warranted in this case for the impaired driving causing bodily harm offence can be gleaned from the authority. Back in 1999 in R. v. MacLaren, [1999] O.J. No. 2566, the Ontario Court of Appeal imposed an 18 month sentence for someone with no criminal record who had caused serious injury to a cyclist. In R. v. Dhesi, [2001] O.J. No. 1343 the same Court imposed an 18 month sentence on another impaired driver who caused serious bodily injury to someone. Although Mr. Dhesi had a prior impaired driving conviction, he had taken effective steps to get control of his alcohol problem. Since the time these decisions were rendered offences for alcohol driving offences that end in calamity have been increasing (R. v. Kummer, supra; R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970). In R. v. Thompson, [2011] O.J. No. 369 (S.C.J.) Quigley J. identified a general range for impaired driving causing bodily harm cases in light of the increase in penalties of between one and two-and-a-half years of imprisonment, depending on the circumstances. Moreover, it has always been true that there are circumstances where a sentence beyond the more familiar range is called for. In R. v. Cohen, [2007] B.C.J. No. 1114 (C.A.), for example, the accused was given a three year sentence for causing a serious head injury to a cyclist where the young accused was grossly impaired and in R. v. Latour, [2005] O.J. No. 4351 (C.J.) the accused received a 35 month sentence when he caused serious injury to a husband and wife in a motor vehicle accident, given his horrendous record and that he was a suspended, uninsured driver at the time. Without question an appropriate sentence in this case for the impaired driving causing bodily harm conviction, given Mr. Casselman's horrendous record, and the severe injuries caused would be at the higher end of the range for this offence. I am of the view that in all the circumstances a fit sentence in this case for this conviction would be at the top end of the range identified in Thompson of 30 months, or 2 years 6 months, even taking his ill-health into account. With respect to the impaired driving causing bodily harm conviction this sentence provides adequate denunciation and sufficiently targets general and specific deterrence within the limits imposed by the principles of proportionality and restraint.
[26] The Crown seeks a sentence of 18 months on the "fail to remain" charge and 60 days concurrent on the charge of obstructing a peace officer, with that 18 month period being consecutive to the sentence imposed for the impaired driving causing bodily harm conviction. I agree that it is appropriate to deal with these offences together and to sentence the fail to remain and obstruction charges concurrently. The lie about hitting the deer was a continuation of Mr. Casselman's reprehensible conduct in fleeing the scene of the accident. I also agree that the sentence for this offence must be consecutive to the impaired driving causing bodily harm conviction. As R. v. Gummer, [1983] O.J. No. 181 at para. 13 reinforces, the offence of failing to remain is an "invasion of a differently protected interest" than the underlying driving offence is meant to protect.
[27] With respect to the suggested length, courts in the cases presented before me have imposed sentences in the range of between 6 months to 15 months, depending on the circumstances. In R. v. Gummer, [1983] O.J. No. 181 the sentence was 6 months. In R. v. Ramdass, supra, the sentence was 9 months. In R. v. Davis, supra (Ont.C.J.), a case involving the death of the victim, the sentence was 12 months, and in R. v. McLean, [2005] A.J. No. 596 (Alta. Prov. Ct.) a one year sentence was imposed where the victim sustained particularly serious bodily harm. In R. v. Folkes, 2010 ONCJ 326, [2010] O.J. No. 3435 (Ont.C.J.), a death case where the accused had moved the body of the victim to assist his escape, the sentence was 15 months.
[28] In my view the appropriate sentence for this offence is 12 months. I am of the view that this offence is at the more serious end of the spectrum because of the aggravating factors. I start with Mr. Casselman's record, including two related, albeit dated, previous offences under the Highway Traffic Act, one for failing to report an accident and another for failing to remain at the scene of an accident. This repeat offender left knowing from the nature of the collision that he had struck a snowmobile operator with sufficient force to crush his car windshield. He was certainly aware that serious injuries if not death was inevitable. I have already mentioned the desperate departure while the vehicle was being approached by Mr. Griffith that no doubt put him at risk and posed a further risk to Mr. Smith, who was lying nearby in the roadway. Then there is the inherent dangerousness of fleeing in his badly disabled vehicle. Finally there was the attempt to hide the vehicle in the side road, the attempt to deceive those who sought to give assistance; the attempt to arrange a tow through his brother to make good his escape, and his effort to obstruct the police by claiming the damage to his car was caused by a deer. This is not a case where there are any mitigating considerations. It is not a case where the decision was made spontaneously in a panic. This was a sustained, callous and self-centred attempt to evade responsibility. In my view the 12 month sentence is warranted to denounce what Mr. Casselman had done and pursue the deterrent objective, while at the same time being respectful of the principles of restraint.
[29] Finally, the appropriate sentence for Mr. Casselman's breach of probation charge is 60 days, consecutive to the other sentences being imposed. This is so even though this is a "failure to be of good behaviour breach" that was committed by committing the other offences Mr. Casselman is being sentenced for, and even though Mr. Casselman plead guilty to this offence. He has numerous breaches of court orders on his record, including two of the offences he was on probation for at the time he committed these offences.
[30] The total individuated sentence fit to impose on Mr. Casselman is therefore 44 months, or three years 8 months, consisting of 30 months for the impaired driving causing bodily harm charge, 12 months consecutive for the failing to remain charge with 60 days concurrent of the obstructing a peace officer conviction, and a further 60 days or 2 months consecutive for the breach of probation charge. In my view this global sentence is not disproportionate in all of the circumstances after the principle of totality is considered.
[31] The remaining question relating to the duration of Mr. Casselman's sentence is the credit Mr. Casselman should receive for the time he has served in pretrial custody on these charges. He has already served a total of 428 days, including today, a little over fourteen months. This issue was argued before me before the Supreme Court of Canada released its decision in R. v. Summers, 2014 SCC 26, which has now settled the law. The Crown submissions nonetheless remain relevant. The Crown urged that I should give Mr. Casselman one day credit for each day he has spent in custody provided for in section 719(3) of the Criminal Code of Canada. The "day for a day" credit that the Crown is seeking was styled in the enactment that created section 719(3) as a "truth in sentencing" initiative because it calls a day in custody for what it is, a day in custody. In fact the truth is that the use of a 1:1 formula to calculate pretrial custody will in most cases result in harsher treatment for those who are not granted bail than those who are. This is because, absent exceptional circumstances, the typical offender will not serve their entire sentence in jail. They will be released while still under sentence so that the corrections officials can impose conditions on them to assist them in reintegrating into the community. If offender are not released while still under sentence corrections officials would have no authority to monitor or assist them once they leave prison. Many offenders would be released without homes, jobs, and without community support. By releasing offenders before their sentence has expired corrections officials can place conditions on the offender to try to reduce the risk of re-offence after their release. "Under [relevant] legislation, the vast majority of federal prisoners are [therefore] released statutorily after serving two thirds of their sentence": Anthony Doob and Cheryl Webster, "The 'Truth in Sentencing' Act: The Triumph of Form over Substance" (2013) 17 C.C.C.L.R. 365 at 372. In other words and to make things simple, an offender sentenced to 3 days, would likely serve 2 days before being released into the community on conditions; that is 1.5:1 "credit" for each day imposed after sentencing. As a result, unless 1.5 "credit" is given for each day of pre-trial custody before sentencing, the typical offender who has been denied bail will serve a longer sentence than someone receiving the same sentence but who has made bail. To make this concrete in the context of this case, if someone had been released before their trial, they would likely serve 871 days of a 44 month sentence before being released. Yet someone such as Mr. Casselman who deserves the same 44 month sentence but who has served 14 months before trial because they have been denied bail will likely spend 1,014 days in jail. This is close to 5 months more in custody, even though the two hypothetical convicts are meant to receive the same sentence, even though the Criminal Code of Canada requires judges to try to ensure that similar offenders receive similar sentences, and even though those who serve time in pretrial custody have not yet been convicted, and even though presentence custody is not meant to be a form of enhanced punishment. Yet that is the rule that is ordinarily to be applied according to section 719(3) as a result of 1:1 credit.
[32] Not surprisingly, Mr. Russomanno has asked that I give Mr. Casselman 1 ½ days of credit for each day served in pretrial custody. Section 719(3.1) empowers courts to give enhanced credit up to 1.5:1 in appropriate circumstances. In R. v. Summers, supra, the Supreme Court of Canada interpreted section 719(3.) and (3.1) in the context of the broader principles of sentencing. It directed, in effect, that unless enhanced credit is prohibited because the accused person was detained through a judicial order made under sections 515(9.1), 524(4) or 524(8), 1.5:1 will be the norm in order to avoid penalizing those who are denied bail more harshly than those who have been released pending trial. The Court directed that while the accused bears the onus of demonstrating that enhanced credit should be given, it can generally be inferred that an individual will be released early into the community after sentence, and that this alone is sufficient to warrant enhanced credit unless the Crown can demonstrate that the accused would not likely earn early statutory release.
[33] In this case the Crown relies on three disciplinary offences committed by Mr. Casselman (recounted in tab 3 of Exhibit 3 in this sentencing hearing) as well as Mr. Casselman's record of non-compliance with conditions of release to resist any suggestion he would have qualified for early release from custody. The ultimate decision will be made by the correctional authorities, but I do not agree that Mr. Casselman is the kind of offender likely to serve his entire sentence in jail. I think he will receive statutory release, given his age and poor health and he is not a violent offender. While the nature of the three internal misconduct penalties that have been imposed on him during pretrial custody could impact on his ability to get paroled, they are not the kinds of events likely, in my view, to result in him being denied statutory release. In my view, in Mr. Casselman's case, denying him 1.5:1 credit is likely to result in him serving longer in custody than similar offenders who have committed similar offences, but who have made bail.
[34] Mr. Casselman has also provided unsworn claims in Tab 1 of Exhibit 3 describing the poor conditions he has endured in the remand centre awaiting trial. Harsh conditions during pretrial custody can, independently of the statutory release issue, support enhanced credit. The Crown does not concede that the claims made by Mr. Casselman about the conditions of his detention are true, but agreed that they can be treated as if they were given in sworn evidence by Mr. Casselman, without the need to call him. The Crown has also opted not to cross-examine Mr. Casselman on these claims or otherwise challenge them. I am therefore going to credit them for the purpose of this application for enhanced credit. Specifically Mr. Casselman describes triple bunking, few visits to the yard, the absence of rehabilitative programs, no weekend visits, and inconsistent access to Alcoholics Anonymous and Narcotics Anonymous. Even without knowing the specifics of how intensely these things have affected Mr. Casselman, I have no doubt on the evidence before me that the time he has served awaiting trial has been "harder time" than the time he will serve after he is classified and placed, particularly given his ill-health.
[35] I am therefore persuaded that a fit sentence for Mr. Casselman requires that he be credited on a 1.5:1 ratio, one-and-one-half days in custody for each day served before today. I am therefore crediting him with 428 days of pretrial custody at that ratio. Mr. Casselman has therefore already served the equivalent of 642 days or 21.4 months of incarceration. The global sentence I am imposing on him today is therefore 44 months minus the 21.4 months he has served, or 22 months and 20 days. The time served of 642 days will be reflected on his criminal record, attributed to the impaired driving causing bodily harm conviction, to show that the global penalty being imposed was the equivalent of 44 months. Broken down by offence Mr. Casselman's remaining sentence is therefore:
(a) Impaired driving causing bodily harm (s.255(2)): 30 months minus 21.4 months (642 days) pretrial custody, for a remaining sentence of 8 months, 20 days (pretrial custody of 642 days to be reflected on the record)
(b) Failing to remain at the scene of an accident that caused bodily harm (s.252(1.2)): 12 months consecutive
(c) Obstructing a peace officer in the course of his duty (s.129(a)): 60 days concurrent
(d) Breach of Probation (s.733.1): 60 days consecutive
[36] Since Mr. Casselman's remaining sentence of 22 months and 20 days is within the reformatory range, I do have lawful authority to impose probation on Mr. Casselman for up to 3 years. I am not going to do that. Mr. Casselman is not a suitable candidate for probation according to his presentence report. He has proved noncompliant with probation orders in the past and I will not burden an under-resourced probation service with responsibility for monitoring him. If he is going to get a hold of his alcohol addiction, as he should, it is going to have to come from within him.
[37] In addition, pursuant to section 259(1)(c) I am prohibiting Mr. Casselman from operating a motor vehicle on any street, road, highway or any other public place anywhere in Canada for life. Driving is a privilege, not a right. Mr. Casselman has shown through his persistent and contemptuous refusal to operate a motor vehicle in a responsible and safe manner that he cannot be trusted to operate a motor vehicle again. As Mr. Smith can attest, the risks of permitting him to do so are simply too great. Mr. Casselman is hereby advised that should he operate a motor vehicle in contravention of this prohibition, he will be committing a criminal offence, and that with his record it is easy to predict that upon conviction he will receive a significant jail sentence.
[38] I am also making an order pursuant to section 487.04 of the Criminal Code of Canada that Mr. Casselman provide sufficient bodily samples as may be required to enable his DNA to be recorded. This is being ordered to protect the public by enabling his detection in the event that Mr. Casselman reoffends and leaves a sample of his DNA at the scene of the offence.
[39] Finally, Mr. Casselman will be required to pay the victim surcharge in the amount of $400.00, $100.00 per offence. I am aware that I have the discretion to waive this payment as he is going to jail for a long period of time, has not worked for more than a year and is on disability payments when not in jail. The evidence before me shows that when not in custody Mr. Casselman lives on a mortgage paid farm that belonged to his parents. Mr. Casselman is lucky to have the support of his family. Ultimately, he can pay the victim surcharge, and given that his offence did indeed victimize Derek Smith and his family, it is fitting that Mr. Casselman contribute to the fund intended to be collected to assist those who are victimized by crime. If Mr. Casselman is unable to pay this in the 60 days allowed because of his incarceration, he can apply to me for an extension for time to pay.
Released: April 17, 2014
The Hon. Justice David M. Paciocco