Court File and Parties

Court File No.: Toronto

Date: 2014-05-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Saeid Mesgarha

Before: Justice Fergus O'Donnell

Heard on: 17 May 2013 and 24 March 2014

Reasons for Sentence released on: 9 May 2014

Counsel:

Mr. P. Clement for the Crown

Mr. C. Barry for the defendant, Saeid Mesgarha

Reasons for Sentence

O'Donnell, J.:

The Offence and Sentencing Positions

[1] Saeid Mesgarha pleaded guilty to impaired driving causing bodily harm. The case was then adjourned several times over almost a year, mostly to allow for Mr. Mesgarha to attend medical appointments and obtain ensuing reports in support of his position on sentence. The Crown seeks a sentence of fifteen months' imprisonment; Mr. Mesgarha suggests that an intermittent sentence of ninety days plus probation would be more appropriate.

The Collision and Injuries

[2] It was just after midnight on 18 July 2011. Mr. Mesgarha was driving his wife's car, with his wife and two other family members as passengers. The roads were dry and well-lit. He was driving close to double the speed limit on Bayview Avenue, a posted sixty kilometre per hour zone. After coming in very close to the car in front of him, Mr. Mesgarha overtook it. It was Gordon Partridge's misfortune to be at work on Bayview that night performing sewer inspections. Mr. Partridge and his colleagues were found by the Ministry of Labour to have followed all appropriate safety procedures that night. His large white cube van was "protected" by an amber directional arrow and fluorescent traffic cones to warn off approaching drivers. They did not serve their function in relation to Mr. Mesgarha, whose blood alcohol concentration was 174 mg/100 ml of blood, more than double the lawful limit. Mr. Mesgarha's car struck Mr. Partridge. The impact that moved the cube van two feet forward from its parked position caused enormous injuries to Mr. Partridge. Mr. Mesgarha was also injured, as were each of his passengers.

[3] Although it is of trifling relevance compared to the human suffering, the police estimated the damage caused by the collision at $100,000.

The Victim's Suffering

[4] Mr. Partridge was about 56 years old when Mr. Mesgarha hit him. He was rushed to Sunnybrook Hospital and remained in hospital there and in Burlington for three months. He had a closed head injury and severe injuries to his shoulder, legs, collarbone and back. While in hospital, one of his wounds went septic and the infection ran through his body, putting him at a very real risk of death. His long hospital stay also resulted in an MRSA infection. After his release from hospital, Mr. Partridge was effectively house-bound for another five months.

[5] I note that Mr. Partridge refers to what happened to him as "the accident". I do not fault him for that: the use of the word is not linguistically incorrect here, but there is a danger that the word "accident" can carry the implication of inevitability, as if what happened was fate, nobody's fault. The reality is that very few "accidents" are actually unavoidable; most are, at least, the product of varying degrees of human carelessness. This "accident" in particular, is more aptly described as what it was, a crime.

[6] Almost two years after that crime, Mr. Partridge walks with a limp and with the assistance of a cane. His severe back and shoulder pain deprive him of the ability to sleep through the night. He can neither sit nor stand for extended periods due to lower back pain that migrates down into his legs and up into his chest. He uses the cane for short periods but needs a walker for extended outings such as going to custom car shows. However, he can no longer enjoy those outings because he tires so easily. He had a custom camper van that he had to sell both because he could no longer use it and because he could no longer afford to keep it.

[7] I believe there was sadness and resignation, but also much truth, in Mr. Partridge's observation that his chances of re-entering the job market with his injuries are slim to none. Mr. Partridge clearly took pride in having been fully employed in his life before the collision. He was one of those people for whom the inability to make a meaningful contribution was a real loss.

[8] The grim, day-to-day reality of the effects of impaired driving reminds us that it is never a fair fight when steel, glass and rubber engage in combat with flesh and bone. The tragic and entirely avoidable reality of Mr. Partridge's situation as a result of the "accident" is perhaps most plainly summarized in the language of a child's rhyme. Mr. Partridge after the "accident" is like Humpty Dumpty: all the king's horses and all the king's men could not put him together again, all the doctors and physiotherapists and financial settlements in the world will not make him whole or return to him the simple pleasures and dignities of life that most of us take for granted.

[9] Mr. Partridge was not the only member of his family to suffer from Mr. Mesgarha's crime. He had been taking care of his elderly mother, seeing to her daily living needs, doing the chores around the house and paying her mortgage. Those are tasks that he can no longer perform. Each now lives a diminished life, dependent on others.

[10] Mr. Partridge described his financial losses up to when he testified a year ago, as hard to calculate, but certainly in the tens of thousands of dollars. Uncertainty about the adequacy of Mr. Mesgarha's insurance coverage adds to the uncertainty about his own ability to live in dignity in the future.

[11] Unsurprisingly, Mr. Partridge's victim impact statement was the only one filed by the Crown. The other victims of Mr. Mesgarha's crime were his relatives. However, the admitted facts demonstrated that Mr. Mesgarha's wife suffered a broken leg, his sister-in-law had a shoulder fracture and his brother-in-law sustained broken ribs and a chipped spine.

Background of the Defendant

[12] I had the benefit of a pre-sentence report prepared in relation to Mr. Mesgarha. He is a thirty-one year old first offender, who has been married for almost ten years and has lived in Canada for about six years. He has a college education in computer science. Although he was well employed in Iran, he and his wife moved to Canada in search of a better life. He has been employed since their arrival in Canada and was planning on continuing his engineering studies a couple of months after the collision, although that was not feasible in light of his injuries. The present charge has created strain in his and his wife's relationship, including a period during which they were living apart while he was in residence at Harbour Light in downtown Toronto. After about a six-week substance abuse programme there, he then registered in their eleven-month transitional housing programme.

[13] I was presented with fairly voluminous materials relating to Mr. Mesgarha.[1] Mr. Mesgarha has spent some of his free time since the collision volunteering, including hundreds of hours at various locations including the YMCA, the Harbour Light Café and an M.P.'s office. He has completed the Pre-Employment Personal Life Management Program through the Oasis Addiction Recovery Society. When sentencing submissions were made about a month ago, Mr. Mesgarha filed a compilation of his attendances at AA/NA meetings. These amounted to a total of seventy meetings, with the earliest being March 2012 and the most recent listed being July 2013.[2] In addition to the gap between his most recent attendance and the day the document was submitted, there are significant gaps within the period covered. Mr. Barry, however, tells me he has been attending AA for three years, i.e. since the offence, and has not consumed alcohol since the event.

Medical Evidence

[14] The medical material presented to me, which dates from various periods since the collision, refers to various stages in Mr. Mesgarha's treatment. The initial effects of the collision included loss of consciousness, lumbar spine compression, cervical and thoracic spine sprain, left wrist strain, laceration and bruising, post-traumatic stress disorder and anxiety with insomnia.

[15] A psychologist's report from November 2012 describes Mr. Mesgarha's cognitive and emotional challenges, including difficulties with memory, concentration, anxiety, depression, sleep and stress. This letter also speaks of Mr. Mesgarha as being unlikely ever to drink again. It also refers to him as being a caretaker for his wife, however, which does not appear consistent with the other history or the chronology of events around that time;[3] it may, in fact, refer to a time more proximate to the collision, although even that is hard to reconcile with the evidence about Mr. Mesgarha's initial cognitive challenges, which were worse than they now are. There is also talk of suicidal ideation at that time, although that does not appear more recently. Interestingly, Dr. Zakzanis's report (Tab 19 of the materials, April-May 2012) recounts Mr. Mesgarha as explicitly denying thoughts of self-harm, while the psychologist's report (Tab 12, January-November 2012), which overlaps in terms of timing, says that he did have suicidal ideation. In any event, it is clear that at least earlier in his progression Mr. Mesgarha suffered from situational panic, apathy, social withdrawal and a sense of worthlessness.

[16] Dr. Zakzanis's neurocognitive examination from two years ago, i.e. nine to ten months after the offence, showed mild to moderate to severe impairment in various cognitive areas. Dr. Zakzanis concludes that Mr. Mesgarha suffered a "severe traumatic brain injury" as a result of the collision. Dr. Zakzanis said that most recovery from such injury will occur in the first year after injury, typically reaching a plateau around the two year mark. A January 2013 report from Dr. Tyndel characterized Mr. Mesgarha's brain injury as "mild traumatic brain injury" in contrast to Dr. Zakzanis's assessment about eight months earlier. The Spring 2013 case management report (Tab 15) refers to Mr. Mesgarha making good improvement in various comprehension and expression skills. As of the summer 2013 case management report, Mr. Mesgarha had been re-admitted to his civil engineering programme at Seneca College, but he did not pass his new courses. At that point, his improvement rate in various cognition and expression skills seemed to have slowed down somewhat.

[17] The most recent medical documentation comes from early this year. The head injury clinic at St. Michael's Hospital in Toronto saw Mr. Mesgarha in relation to bouts of dizziness and problems with balance. The treating doctor recommended a hearing aid, balance retraining therapy and appropriate attention to his depression. Mr. Mesgarha also testified about that assessment and about his current condition. He is working part-time at a church. He is still depressed and suffers from back, wrist and hearing problems. He cannot walk for more than five or ten minutes at a time. He is on numerous medications for dizziness, anxiety, sleep and pain.

[18] Both Mr. Mesgarha and his wife described his pre-collision drinking pattern in a way that would be consistent with binge-drinking rather than any sustained or routine pattern of alcohol dependency. At the time he might have drunk as seldom as twice a month. As noted above, he attended a residential alcohol treatment programme with Harbour Light in Toronto in the summer of 2012. He says that he has not drunk alcohol since the offence.

Sentencing Principles

[19] The principles of sentence that I am required to apply are set out in the Criminal Code. That sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and must aim to achieve certain objectives, namely:

(a) Denouncing unlawful conduct;

(b) Deterring the particular defendant from committing offences;

(c) Deterring other persons from committing offences;

(d) Separating offenders from society where required;

(e) Helping to rehabilitate offenders;

(f) Providing reparations for harm done;

(g) Promoting a sense of responsibility in offenders and recognizing the harm done to the community.

[20] I note that Mr. Mesgarha's blood alcohol concentration is a statutory aggravating factor in this case.

Case Law Review

[21] Mr. Barry and Mr. Clement provided me with a variety of cases on the appropriate range of sentence. Mr. Barry points to R. v. Biernat, 2009 ONCJ 273, in which a repeat impaired driving offender received a sentence of ninety days intermittent plus probation for impaired driving causing bodily harm. I recognize, as did the judge in Biernat, that an offender's crimes often impact innocent family members, in that case with the potential loss of family income, and the injuries in Biernat were fewer and less serious than in the present case, but I have struggled to conclude that the sentence imposed in that case was at all fitting. I would not follow it unless it were a sentence by which I was lawfully bound; it seems, in fact, to be an attempt to impose a conditional sentence where a conditional sentence was not available in law.

[22] In R. v. Rooplal, [2009] O.J. No. 5493, a decision from this courthouse, the speed and the blood alcohol concentration and the offender's background are reasonably similar to the present case. However, the nature of the injuries in that case was entirely of a different magnitude, a fact to which the sentencing judge in that case specifically adverted. There was also only one victim in that case.

[23] In R. v. Sinnarasa, [2005] O.J. No. 4039, the defendant, with a blood alcohol concentration of between 120 and 150 mg of alcohol/100 ml of blood, lost control at high speed, crossed six lanes of traffic and rolled his vehicle, causing his passenger to suffer broken vertebrae. The victim, who was not wearing a seat belt, who was ejected from the car and who made a full recovery, unlike Mr. Partridge, told the sentencing court that he knew the defendant had been drinking, should not have gotten in the car as a passenger and wished him no ill will.[4] The defendant was 26 years old at the time of the offence and played a pivotal role in the care of his very ill mother. There were triable issues but the defendant still pleaded guilty. I do not believe there were any triable issues in Mr. Mesgarha's case.

[24] The final case relied upon by Mr. Barry was the recent Manitoba decision in R. v. Gomez, [2013] M.J. No. 47, in which the 22 year old first offender, with a blood alcohol concentration slightly higher than Mr. Mesgarha's, lost control of his car on very slippery roads and hit a hydro pole, causing bruising to some of his passengers and injuries to the other two passengers that were significantly less serious than in the present case. He was sentenced to a ninety day intermittent sentence, plus a $1,500 fine and a three year driving prohibition.

[25] The Crown presented me with a series of four cases to demonstrate the general range of sentence for offences of this nature. As with the defence cases, none of them was on all fours with the facts of the present case. R. v. Harrington, 2012 ONSC 5363 involved a "fine young man", a 21 year old first offender who had been the primary caregiver for his seriously disabled mother in very difficult circumstances and who pleaded guilty to impaired driving after driving his van on the wrong side of the road and colliding with a car operated by a 69 year old motorist. There was a shortened trial on the issue of causation of the victim's injuries because a police cruiser responding to the initial collision also hit the victim's car. The sole victim's injuries were in many ways reminiscent of Mr. Partridge's injuries. Harrington, who had one of the best pre-sentence reports the judge had seen in ten years, was sentenced to nine months' imprisonment plus two years probation and a three year driving prohibition.

[26] In R. v. Bouchard, [2001] O.J. No. 5971, a 22 year old aboriginal offender with a blood alcohol concentration of 220 mg of alcohol/100 ml of blood lost control while passing a truck in the rain and hit an oncoming vehicle. He pleaded guilty to impaired driving causing bodily harm and was sentenced to fifteen months' imprisonment on top of ninety-nine days of pre-sentence custody. The two victims suffered injuries of comparable severity to Mr. Partridge's.

[27] R. v. Grozell, 2010 ONSC 307, [2010] O.J. No 360 was also a guilty plea. Grozell, a 25 year old who had no previous record, drove while impaired, with a blood alcohol concentration of at least 2 ½ times the legal limit, at 120 km/hour in an 80 km/hour zone and struck a boulder, causing injuries to his girlfriend that left her in hospital for several months. Like Mr. Partridge, there were times when this victim's survival was touch and go. Mr. Grozell was sentenced to thirteen months' imprisonment and a three year driving prohibition.

[28] R. v. Thompson, [2011] O.J. No. 369 was a case in which the defendant pleaded guilty to impaired driving causing bodily harm and was found guilty after a trial of dangerous driving causing bodily harm.[5] The guilty plea was entered after the defendant lost an application to exclude his breath samples from evidence. Thompson also committed these offences while awaiting trial for an earlier impaired driving charge, of which he was convicted after this offence took place.[6] Thompson, who had a blood alcohol concentration similar to Mr. Mesgarha's, also suffered a serious leg fracture in the collision. His victim suffered worse than that, two broken legs and a permanent impairment insofar as his feet now connect unnaturally to his legs, affecting his ability to walk. Like Mr. Partridge, there was no realistic likelihood that that victim's life would ever be the same. A jail sentence would cause Mr. Thompson's family to rely on social assistance. Nonetheless, Thompson was sentenced to two years' imprisonment on the driving offences alone, plus a four year prohibition.

[29] There is a useful, albeit now somewhat dated chart of sentences for impaired driving causing bodily harm appended to the reasons of the Court of Appeal for Ontario in R. v. Goudreault.

[30] One of the more significant recent decisions of the Court of Appeal for Ontario in relation to impaired driving sentencing is R. v. Ramage, 2010 ONCA 488. While that decision deals with an offender found guilty of both impaired driving causing bodily harm and impaired driving causing death, which necessarily engages a different range of sentence, the long-standing philosophical approach to both offences is reflected in the reasons of Doherty, J.A. as follows:

[74] In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh, (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, "every drinking driver is a potential killer". Unfortunately, that potential was realized in this case.

[75] McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases, however, McVeigh indicates that general deterrence is of primary importance. The result in McVeigh demonstrates the court's commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs. McVeigh, a 31-year old first offender, had his sentence increased from 21 months to three years.

[76] As noted by the trial judge, there were aggravating factors in this case. The appellant's blood alcohol level was very high, well beyond the blood alcohol level of .160 deemed by statute to be an aggravating factor: s. 255.1 of the Criminal Code. The readings leave no doubt that the appellant was significantly impaired. As he drove along the road, he presented an immediate and very real danger to hundreds of people. Given the appellant's very high blood alcohol level and his inevitable degree of impairment, the appellant must have known of the risk he posed to all around him when he chose to leave the reception and drive to his destination. The danger created by the appellant's conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals. (emphasis added)

[31] Soon after, the Court of Appeal for Ontario in R. v. Junkert, 2010 ONCA 549, another impaired driving causing death case, noted an appropriate upward trend in sentences over recent years.

Medical Condition as a Mitigating Factor

[32] I am presented with two very different positions with respect to the appropriate sentence. The Crown asks for a fifteen-month jail sentence. The defence asks for an intermittent sentence with probation. There are certain mitigating factors present here. Mr. Mesgarha has no previous record. He has also pleaded guilty and even for someone who may have had little or no room to manoeuvre in terms of triable issues, that plea is nonetheless entitled to appropriate consideration, although not as much as for a defendant who pleads guilty and thereby foregoes a viable defence or constitutional argument. He has done a significant amount of community service work before his sentencing. I accept his remorse as genuine, although it does seem that he places somewhat less emphasis on Mr. Partridge's suffering than on his own. He has also suffered ongoing consequences of his own as a result of the events of 18 July 2011; it is the impact of that final factor that separates the Crown and defence on this sentencing.

[33] Mr. Barry tells me that Mr. Mesgarha's medical progress would be compromised by any sentence of straight imprisonment. Mr. Clement challenges the defence position on that issue directly. In his submissions he said that he expected that the medical reports filed would demonstrate that any sentence of imprisonment other than an intermittent sentence would irreparably harm Mr. Mesgarha.

[34] The law with respect to how a defendant's medical condition factors into the appropriate sentence can be summarized as follows. Significant medical concerns, which I accept exist here, can take a defendant towards the lower end of the appropriate range of sentence. In order to obtain a result that is fundamentally different from the generally appropriate range of sentence, which I take Mr. Barry's intermittent sentence submission to be in light of all of the facts of this case, the medical circumstances have to be of a different order of magnitude. Thus, in R. v. C.D., 2012 ONCA 696, the defendant, otherwise facing a sentence of real jail, was a quadriplegic, in severe pain, with a colostomy, requiring therapy four days a week and requiring nursing assistance to perform even basic bodily functions and taking many medications, including opiates several times daily. He faced a high risk of complications. Using language such as "extraordinary" and "these totally unique facts", the Court of Appeal for Ontario decided that a conditional sentence would be appropriate in lieu of the sentence of real jail imposed at trial. In R. v. McCrystal, [1992] O.J. No. 385, the Court of Appeal, on a record that addressed the health impacts of incarceration on a very ill 72 year old man very directly, substituted a non-custodial sentence for a twelve month jail sentence, noting: "Our concern is that to require the appellant to serve a custodial term could well amount to the imposition of a death sentence." Another Court of Appeal decision in which a much more compelling medical and factual record led to an alternative sentencing regime is R. v. Jacobson. See also R. v. Bradford, [2005] O.J. No. 2244. As I note elsewhere, I find the evidence of the psychologist in this case to be most unsatisfactory.

[35] The law is also clear that unless the record shows that the impact of incarceration would be virtually catastrophic, the appropriate outcome is to treat medical conditions that can be handled in prison as potentially placing the defendant lower in the range than he might otherwise have been. That is precisely what the trial judge did in R. v. J.G.R., [2009] O.J. No. 1177, an approach endorsed by the Court of Appeal for Ontario, which noted:

No doubt, it would be better for the appellant's medical treatment if he were not incarcerated. That is, however, no justification for interfering with an entirely appropriate sentence that takes into account the added difficulties the appellant will face in custody.

[36] To similar effect is the Court of Appeal's decision in R. v. Weig, [2009] O.J. No. 5237:

[4] On his sentence appeal, the appellant submits that although the trial judge took into account his ill health as a mitigating factor, she did not consider imposing a conditional sentence on purely compassionate grounds.

[5] We recognize that the appellant is in poor health and that incarceration may add to the stress he is now experiencing. However, the fresh evidence filed before us does not materially change the picture of the appellant's health that was presented to the trial judge. She concluded that the appellant's medical needs could be adequately taken care of in custody. That still seems to be the case. Overall, we are not persuaded that the evidence makes out the kind of compelling case that would warrant reducing the sentence to two years less a day and imposing a conditional sentence.

[37] The consistency of the Court of Appeal's views on the approach to be taken is also seen in R. v. Duncan, [2005] O.J. No. 4804:

3 The sentence imposed was measured and reflected a consideration of the appellant's age (78) and his medical condition. As the trial judge correctly observed, absent these mitigating factors, a penitentiary term of three years would have been appropriate.

4 We have considered the fresh evidence pertaining to the appellant's medical condition. While his condition is cause for concern, we are not persuaded that it cannot be appropriately monitored and treated by the prison authorities. The medical reports should be brought to the attention of the prison authorities. Leave to appeal sentence granted and the appeal is dismissed.

[38] These authorities dictate the analytical approach to be taken in relation to Mr. Mesgarha's case. In terms of the facts, I think the following conclusions can be reached based on the medical material put before me. Mr. Mesgarha suffered significant physical and cognitive injuries as a result of the collision. He has made significant progress since the time of the collision but continues to have a series of non-trivial physical and cognitive issues. He has, however, progressed from being someone who was considered unsuitable to be left on his own because of attention limitations to someone who has been assessed as suitable to resume his college career as of the summer/fall of 2013, even if his first attempt at that has been unsuccessful. When I consider the comments of the psychologist (Tab 12 and also subsequent reports referred to elsewhere, e.g. at pp. 7-9 of Tab 17, the summer 2013 case management report) in light of the other source material, it seems to me that the psychologist's reports fail to keep track of the changing background information (e.g. Mr. Mesgarha's obligation to care for his wife is inconsistent with other caregivers' assessments of his ability to care for himself and with his long-term absence from the family home) and, in my view, their reliability is undermined by that failing. I do not doubt that imprisonment will have an impact on Mr. Mesgarha—imprisonment tends not to be good for anyone's emotional or physical health—but I cannot comfortably place any significant weight on the psychologist's report about the extent of any impact imprisonment would have on Mr. Mesgarha.

[39] What cannot be derived from the material presented is any reasonable conclusion that a sentence of straight imprisonment would have the kind of deleterious impact on Mr. Mesgarha or his medical progress that is required to take a sentence outside its appropriate range. I accept that there are cases that seem to suggest that the appropriate range for impaired driving causing bodily harm includes sentences at or below ninety days.[7] Given the relatively low threshold set in the definition of "bodily harm" in the Criminal Code, there may well be cases in which such an outcome is just. There may also be cases in which particular circumstances justify going outside the normal range of sentence. However, given the seriousness of those impaired driving causing bodily harm cases resulting in broken limbs and chronic impairments, and given the prevalence of the offence and its impacts on society, I cannot accept the proposition that sentences in the intermittent range will generally be acceptable. They are certainly not in the appropriate range for a case such as this with four victims other than Mr. Mesgarha.

Sentencing Principles: General Deterrence and Denunciation

[40] I accept that specific deterrence is likely a minor or irrelevant consideration in sentencing here. However, for offences of this nature, typically committed by people of otherwise good character and having tremendous potential to maim and kill innocent users of the road and to impose ongoing serious consequences on surviving victims and their families, there is an undeniable need for general deterrence and denunciation. Almost twenty years ago, in R. v. Bernshaw, the Supreme Court of Canada stated:

16. Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

In many ways, Canadian society has changed dramatically in the past two decades, but not meaningfully so in terms of the said reality of impaired driving and its consequences. The more things change, the more they remain the same.

The Sentence

[41] On one level, it is entirely natural to feel compassion for Mr. Mesgarha and his present situation. Even though it is the product of his own criminal action, he continues to suffer significant limitations quite some time after the offence. There is no satisfaction to be derived from his situation; this is no place for a "serves him right" type of analysis. I have, accordingly, wrestled with the question of what is the appropriate sentence to impose on Mr. Mesgarha, not, I stress, as between the sentence suggested by Mr. Barry and the sentence suggested by the Crown, because the sentence suggested on Mr. Mesgarha's behalf is so patently unfit for the offence and the evidence before me that it does not give me cause for pause. Given the nature of Mr. Mesgarha's offence, the breadth and depth of the injuries to others caused by him (including but not limited to Mr. Partridge), the principles of sentencing dictated by the Court of Appeal for cases of this nature, the principles that apply to medical circumstances as mitigating factors and the nature of Mr. Mesgarha's condition as set out in evidence, Mr. Clement's resistance to the intermittent sentence is principled and correct. Rather, the question with which I have struggled is this: considering the important principle that when jail is called for it should be used only to the extent absolutely necessary, how much can I "discount" the sentence I impose on Mr. Mesgarha to recognize his own injuries without undermining the purposes of sentencing in the Criminal Code? This involves a compromise between mercy and reason. In William Shakespeare's play, "The Merchant of Venice", Portia comments that "the quality of mercy is not strained; it falleth like the gentle rain from heaven." That may be so in the decisions made by individuals, but in the sentencing context I must be alive to the reality that unbridled mercy that has not been balanced against other considerations will lead to an unjust result: mercy in the sentencing context must always be balanced with reason. Too much mercy for Mr. Mesgarha easily becomes too little justice for Mr. Partridge and other users of the roads.

[42] I believe that in general terms, the sentence range advanced by the Crown, i.e. from nine months to two years less a day, for impaired driving causing bodily harm, is a fair range and that the authorities advanced on Mr. Mesgarha's behalf are, in some cases incomprehensible and in other cases simply outliers from the general range or inconsistent with the upward trajectory of sentences for this offence. I think that for a first offender who has pleaded guilty on the facts admitted by Mr. Mesgarha, i.e. a very high blood alcohol concentration, driving near double the speed limit, colliding with a clearly marked utility vehicle, serious injuries to three passengers and lifelong consequences to Mr. Partridge, the Crown's fifteen month position shows balance and appropriate recognition of most of the mitigating factors. Where the Crown errs, however, in my opinion, albeit not by much, is perhaps in not giving sufficient weight to the fact of Mr. Mesgarha's own injuries, past, present and likely future. I must sentence not only the healthy man who decided to drive after drinking as much as Mr. Mesgarha did in July 2011; I must also sentence the weakened man who appears before me in May 2014. When I take that factor into account, self-inflicted as those injuries were, I think that on all the facts of this case a sentence of eleven months' imprisonment is appropriate. That is a mitigation of more than a quarter from a Crown sentence position that was already very fair in relation to all of the other considerations. It is possible that it is somewhat too generous to Mr. Mesgarha, but in my view it certainly gives full consideration to the mitigating effect of his own injuries. I do not believe that I could responsibly go lower than that. It must be kept in mind that in the absence of the guilty plea and other mitigating factors such as the community service work and Mr. Mesgarha's condition, his offence would readily have resulted in a sentence at or very near the top of the reformatory range.

[43] Given the passage of time since the offence and given the steps taken by Mr. Mesgarha during that time, I do not consider a probationary period to be necessary or appropriate here.

Driving Prohibition

[44] The cases recognize that the length of the driving prohibition is one component of the overall fitness of a sentence. In this case, the Crown asks for a two year prohibition and the defence asks for a year, this about a year after I made my finding of guilt, which triggers Mr. Mesgarha's disentitlement to drive from the Ministry of Transportation's perspective. Given the serious aggravating factors that are present in this case I am entirely satisfied that a further two year prohibition is an appropriate component of an overall fit sentence and I order pursuant to the Criminal Code that Mr. Mesgarha be prohibited from operating a motor vehicle on any street, road, highway or public place for two years after his release from custody.

Victim Surcharge

[45] This offence pre-dates the changes to the victim surcharge provisions in October 2013. Given what I have been told about Mr. Mesgarha's absence from the workforce for a prolonged period due to his injuries, the low-wage, part-time work he has had recently and his enforced absence from the workforce as a result of his sentencing, I am satisfied that requiring him to pay the victim surcharge would cause undue hardship so the surcharge is waived.

Released: 9 May 2014

Footnotes

[1] I have reviewed the material, both at the time it was presented and as the case has proceeded towards sentencing. I do not propose to summarize every document, which includes drug/alcohol test results, doctors' reports, physiotherapy reports, etc.

[2] Another attendance sheet, part of a bundle provided to me during the judicial pre-trial process, but for some reason not part of the bundle tendered as an exhibit, shows Mr. Mesgarha attending another twenty-one sessions during a time period from April to November 2012.

[3] See, e.g. Dr. Zakzanis's report of 24 May 2012—Tab 19, p. 8, including: "Mr. Mesgarha reportedly does not have any caregiving responsibilities.")

[4] As noted by Durno, J., the views of the victim are a relevant but not determinative consideration: R. v. Mould. The facts in Sinnarasa are materially different from the present case: contributory fault on the victim's part leading to his ejection from the car, a willing assumption of risk by the victim who accompanied Mr. Sinnarasa and knew he was impaired, a single victim rather than four victims, lesser injuries, full recovery by the victim and a victim who expressed a desire for leniency. The defendant in Sinnarasa was also the primary care-giver to his elderly mother.

[5] The issue at that trial was whether convictions for dangerous driving causing bodily harm and impaired driving causing bodily harm could both be imposed in light of the Kienapple principle.

[6] Mr. Thompson also received a consecutive sentence for breach of undertaking charges arising from conditions imposed after his arrest on the first impaired driving charge.

[7] I should note that in assessing what ranges have been defined by the courts, it is important to interpret decisions of the Court of Appeal in a fashion that is true to the realities of that court's approach to sentence appeals. A court of appeal conducting a sentence review must apply a fine balance. Sometimes when an appellate court dismisses a Crown sentence appeal, it does so because it considers the sentence entirely fit; in other cases it might dismiss an appeal even though it is has concerns about the sentence but holds back because of the principle of appellate deference; other times it will dismiss a prosecution sentence appeal simply because the passage of time makes fixing a trial level error either impractical or unfair to the defendant. An appellate court will not always express those outcomes in so many words, but the delicate nature of its work on sentence appeals means that one ought not to be too hasty in reading broad significance into particular outcomes.