Court File and Parties

Court File No.: 15-5744 Location: London, Ontario Date: January 29, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Jamie Smith

Reasons for Sentence

Counsel:

• G. Cudmore for J. Smith
• H. Palin for Crown

Before: Justice Jonathon C. George

Decision

[1] Guilty Plea and Charge

Jamie Smith pleaded guilty to failing to remain at the scene of an accident, knowing that bodily harm was caused, contrary to section 252(1.2) of the Criminal Code of Canada.

[2] Finding of Guilt

On May 15, 2015 I found her guilty.

[3] Nature of Offence

This is a straight indictable offence.

[4] Central Sentencing Issue

The central sentencing issue is whether jail is the appropriate consequence. All agree a conditional sentence is not available.

Facts

[5] The Incident

These are the facts. Jamie Smith was operating her motor vehicle on January 1, 2015, returning from a local pub after New Year's celebrations. A pedestrian, the victim Alison Chmara, was crossing Central Street, in London, from the south side towards the north. The victim's companion told her to "watch it…and be careful". Ms. Smith's vehicle then collided with her, knocking her to the ground. In the process the vehicle's side mirror was broken. Ms. Smith did not stop. She kept driving making no attempt to offer assistance.

[6] Victim's Injuries

Ms. Chmara sustained serious injuries. Plates were inserted in her head. She suffered a concussion. There was injury to her shoulder, and her teeth were damaged.

[7] Investigation and Arrest

The investigation revealed that Ms. Smith purchased a new mirror, replacing the broken one, clearly an attempt to conceal what had happened. As it was initially unknown who the driver was, a friend of Ms. Chmara posted on Facebook, essentially a plea for anyone with information to come forward. This led to the police identifying Ms. Smith as the driver. She was arrested on January 31, 2015, a full month after the incident.

[8] Admission and Explanation

Upon arrest, Ms. Smith admitted to being the driver and to striking a pedestrian. She did not believe the impact was bad enough to cause injury, which doesn't explain how she reconciled that belief with the clear and obvious damage to her vehicle. Nor does it explain why she felt the need to leave the scene; a failure of her moral obligation.

Offender Background

[9] Personal Circumstances

32 year old Ms. Smith has no criminal record. She is separated; a mother of two children, ages 4 and 6.

[10] Pre-Sentence Materials

I have the benefit of a presentence report, victim impact statement, and information respecting (and photographs of) Ms. Chmara's injuries.

[11] Formative Years and Family

There are no underlying issues. That is, no addictions or mental health issues contributed to Ms. Smith's offending behaviour. Her formative years were uneventful. She is from a broken home, but by all accounts her parents remained focused on her well-being post separation. She has a good relationship with her step mother, step father, biological family, and two step brothers. She describes her childhood as happy, never experiencing extreme hardship or tragedy.

[12] Marital Status and Parenting

Ms. Smith was married, separating from her husband in 2014. Since that time, she has been the primary caregiver for her children. Her ex-husband contributes little, financially or otherwise.

[13] Parenting Abilities

The report describes Ms. Smith as a loving mother. She speaks of her children in caring terms, making it clear they are her number one priority. Her ability to provide for her children and give them the lifestyle she wants, is complicated by the fact that, according to the report, the father has "lost interest" in the children and is seeing them with ever decreasing frequency.

[14] Community Involvement

Ms. Smith is currently single, not having dated anyone since the dissolution of her marriage. To her parenting abilities, Ms. Smith's mother calls her "an amazing mother who is actively involved in every facet of her children's life including volunteering at their school, daycare, and at the humane society". She is said to, notwithstanding her financial limitations, always prioritize her children's activities so they have as many opportunities as possible.

[15] Employment History

Ms. Smith has worked full time since the age of 19. She has been employed, on a full time basis, and at the same company, since 2003. This experience - being charged, going through the court system, and staring at, potentially, a fairly lengthy jail sentence - has had an impact on her. She has not worked since being charged, supporting herself through the short term disability program offered by her employer. She is presently applying for long term disability benefits.

[16] Mental Health and Remorse

She is suffering from anxiety and panic attacks, and is under the care of a doctor and taking medication to manage her symptoms. The report's author suggests that not only is she scared of the potential personal consequences of her behaviour, but that she feels horrible about the accident and impact upon the victim. Ms. Smith is remorseful. The following passage from the report, found at the top of page 5, best captures her response to this ordeal:

The offender was quite nervous at the onset of the presentence report interview. She became very emotional when discussing the index offence and expressed guilt, shame and remorse for her actions that have brought her before the court. When discussing the injuries the victim sustained the offender began to cry and acknowledged that she has not told anyone aside from her mother about the offence as she is so ashamed of herself…

[17] Pre-Sentence Report Assessment

The author goes on to write:

The offender takes responsibility and expressed genuine remorse for her actions on the night of the offence. These actions do not appear consistent or representative of the pro-social lifestyle that she has led and continues to lead. Throughout her life she has maintained employment, positive family relationships, social use of substances, volunteered in her community and has never been in conflict with the law. She is the primary caregiver to her daughters aged 4 and 6. She does not have any criminogenic targets that require intervention.

Sentencing Authorities and Analysis

[18] Crown's Position and R. v. Eichler

The Crown seeks a, relatively speaking, lengthy period of incarceration, one in the range set forth in the authorities it has provided and relies upon. I will summarize them. In R. v. Eichler 2012 ONCJ 480, [2012] O.J. No. 3390, a 2012 Ontario Court decision, Justice Hearn imposed a six month sentence; two year driving prohibition; and 12 months of probation. In that matter the offender had no prior record, was remorseful, and pleaded guilty. Mr. Eichler was a youthful first offender, with a positive pre-sentence report. He pleaded guilty to failing to remain at the scene of an accident knowing that the victim had suffered bodily harm, the same offence for which Ms. Smith has been found guilty. Mr. Eichler consumed two beers prior to driving, and there was no evidence of erratic driving. He did, however, strike the victim, a pedestrian attempting to cross the street, leaving (after temporarily slowing) offering no assistance.

[19] Eichler Victim Injuries

Like Ms. Smith, his conduct was described as being motivated by sheer panic. In his case, the victim's leg was broken in three places. Two surgeries were required which involved the insertion of plates and steel bars. The victim also suffered a fractured skull and upper vertebrae together with extensive scraping and bruising. Those injuries, not unlike this matter, resulted in significant pain, lengthy rehabilitation, and a diminished quality of life. Depression ensued, with severe impacts upon his once very active life and social existence.

[20] Denunciation Principle - R. v. Gummer

The court in Eichler clearly views denunciation as the foremost factor to consider, the sentencing goal clearly being to communicate society's condemnation of the offender's conduct. It quotes the still relevant 1983 Court of Appeal decision in R. v. Gummer, [1983] O.J. No. 181, where at para 14 the court writes that:

Failing to remain at the scene of an accident to offer assistance to an injured person was a grave failure to comport with the standards of humanity and decency.

[21] Court's Duty - Gummer

At paragraph 16, it goes on to write that:

The court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the criminal code.

[22] R. v. Ramdass

I was also provided the case of R. v. Ramdass [1982] O.J. No. 177, a 1982 Court of Appeal opinion, which confirmed a lower court's decision to impose a 9 month jail sentence. Respecting this case I note two things. First, not to suggest this is no longer good law, but this decision is dated some 34 years. Second, death ensued, which was the direct result of the offender's bad driving. That is, in that matter, the fail to remain conviction was entered together with a finding that he drove carelessly. Neither is the case here. In other words, there is no underlying (or accompanying) substantive offence and, thankfully, death was not the result.

[23] Defence Position

The defence advocates for a suspended sentence and lengthy period of probation. There being no underlying issues suggesting a counselling need, the only real and meaningful way for Ms. smith to be held accountable, should I accept this argument, would be through the imposition of a significant number of community service hours.

Sentencing Principles and Proportionality

[24] Balancing Denunciation with Individualization

I found this to be a difficult and challenging sentencing. While denunciation and deterrence are paramount, that doesn't entirely diminish every other consideration. The biggest challenge has been determining a fit, individualized sentence, while at the same time having it properly reflect the serious victim impact. This is not easy because the calculus should never be, as a general rule, to increase the punitive nature of a sentence in an attempt to have it commensurate with victim suffering. It simply cannot work that way, for many reasons, including the fact it wouldn't be realistic or achievable. It is not formulaic in that sense.

[25] Denunciation and Community Standards

Conversely, denunciation demands that a sentencing judge be responsible in signalling to the community that certain kinds of behaviour cannot and will not be tolerated, and that, if certain standards of decency are not met, stern consequences will follow.

[26] Proportionality and Parity

This is a delicate balancing act, with many interests at stake, and in that sense, one must never lose sight of the fact that the primary purpose of sentencing is to fashion a proportional punishment. In all cases, a sentence must be proportionate to the severity of the crime and degree of responsibility of the offender. In doing so, I must consider the nature and gravity of the offence, and be informed by the notion of parity in that the sentence should be like those imposed on others, who are similarly situated, having committed similar crimes.

[27] Individualized Sentencing

This doesn't detract from the fact sentencing is an individualized process. A fit sentence cannot be determined without knowing the background and current circumstances of the particular offender before the court. This must mean that, at least to some extent, I should consider the impact and ramifications of this offence on the offender, beyond the formal sentence I endorse.

[28] Professor Benjamin Berger on Punishment

Professor Benjamin Berger puts it best, in a piece found in the Supreme Court Law Review titled "Sentencing and the Salience of Pain and Hope" SCLR (2d.), where he writes:

Sentencing judges rarely speak about punishment. There is much discussion of sentencing objectives, with courts debating, for example, the relative situational importance of deterrence and denunciation, as compared with rehabilitation. Appellate courts emphasize the fundamental purpose of sentencing, which, in Canada "is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions". One can find careful reflection on the principles of sentencing, with appellate courts giving guidance on principles of parity and parsimony, mitigation and aggravation. With this, a rich sentencing jurisprudence has developed to help judges to arrive at an appropriate form of sanction, imposed in a fit quantum. But all of this is really just the technocratic rendering of the thing itself. "Sentencing" - and the language of principles and objectives that fuel it - is the bureaucratized expression of how one arrives at what truly is at stake after a finding of criminal liability; the infliction and experience of suffering at the hands of the state. The law of sentencing, as we have it now, is overwhelmingly a kind of meta-narrative; a principled and careful reflection, to be sure, but a principled and careful reflection about how to engage in a process already one step removed from punishment itself.

What would a jurisprudence of sentencing that was induced from the experience of punishment rather than deduced from the technocracy of criminal justice look like? Otherwise put, what would we expect to find in sentencing jurisprudence if one began with a phenomenology of punishment? One answer is that we would expect to find more careful attention paid to the empirical bases for our hopes surrounding punishment. One might expect to see more interest in and significance attach to how, when, and why offenders are actually deterred, rehabilitated, or made more responsible. At a time when facts are out of political favour in matters of criminal justice policy, such a jurisprudential reinvestment in the empirical would be refreshing, treating sentencing objectives with the seriousness and realism that one would think they demand.

[29] Jurisprudence from Experience

I believe what he is talking about, and specifically suggesting, is that sentencing judges should be mindful of the broad scope of the offenders experience in and with the criminal justice system. Later in that same article, Professor Berger writes:

In this jurisprudence "from up close", we would be interested in the pain, loss, estrangement, alienation and other features of the life that the criminal justice system imposes on the offender in response to his or her wrongdoing. Rather than the abstract of quantum, the focus would be the experience of suffering at the hands of the state. It is, after all, the character of that experience that acts upon the offender and, in so doing, dictates the realization of our sentencing objectives.

[30] Supreme Court Guidance on Collateral Consequences

I appreciate what I have quoted is an opinion, from the academic world, which essentially advocates for the expansion of what we would consider in assessing proportionality. And while this is somewhat novel, higher courts haven't been entirely silent either. The Supreme Court, in R. v. Pham 2013 SCC 15 discusses sentence fitness where there are looming collateral consequences from the Immigration and Refugee Protection Act. Similarly, in R. v. Nasogaluak 2010 SCC 6, the Supreme Court assesses the impact of police misconduct during an arrest, and how that should impact upon the "gravity of the offence".

[31] Proportionality in R. v. Ipeelee

Furthermore, Justice Lebel talks extensively about proportionality in R. v. Ipeelee 2012 SCC 13, which is not, as some believe, simply an aboriginal sentencing case.

[32] Offender-Specific Considerations

The point is this, it is not wrong to consider the impact of, for example, a driving prohibition on Ms. Smith as compared to its impact on another offender; the impact a jail sentence would have on her and her two young, vulnerable, and dependent children; the impact on her employment situation and prospects; the impact a criminal conviction would have on her specifically; and the significant toll this process has taken on her mental health and emotional well-being.

[33] Proportionality Analysis and Offender Circumstances

With my thanks to Professor Berger for, in a very thoughtful and articulate way, setting out what I would be incapable of expressing, I must now consider what impact Ms. Smith's particular circumstances and attendant hardships, has on sentence quantum. In other words, is this a part of her punishment? Again, this is a balancing act. And I understand and appreciate the counter-argument to applying proportionality in the way I suggest, to Ms. Smith. Which is to say, to keep with the examples already cited: she does not have the antecedents of an aboriginal person who has to constantly deal with inherent unfairness within the system, she is not facing collateral immigration consequences, nor has she been the target of police aggression. I would point out simply that a proportionality analysis is not limited to pre-determined factors. This is always dependent on an offender's personal circumstances.

[34] Victim Impact and Offender Conscience

To be clear, no one should take my offender-specific and focussed comments to this point, to be a minimization of the extreme harm caused by Ms. Smith's actions and the significant injuries occasioned the victim. These too are sentencing considerations. Whatever sentence I impose, it won't detract from that, nor should it be construed as a reflection of the value of Ms. Chmara's life and level of suffering. No matter what I do, Ms. Chmara will continue to struggle and cope with this, all of which should weigh heavily upon Ms. Smith's conscience. And I have no doubt it will. She should feel bad, remorseful, guilty and sad. If she didn't, something would be very wrong with her moral compass, a compass that we know can be corrupted given her decision to leave Ms. Chmara without offering assistance.

Alternative Sentencing Approaches

[35] Parliament's Intent

The authorities the Crown relies upon are examples of courts determining there is no reasonable alternative to custody. This isn't, however, always the case. If Parliament wanted to require the imposition of a jail sentence, it would have done so. It has not created such a regime for this offence.

[36] Counter Authorities

In similar cases, courts have, on occasion, taken a different view. Most aren't binding, they are merely instructive, but do represent a counter position to other instances where there is an enhanced reliance on denunciation and deterrence as a basis for the position that no option but custody exists.

[37] R. v. Oliveira

In R. v. Oliveira, an unreported decision of Ontario's Superior Court, the offender received a three month jail sentence (to be served on weekends), after 3 months credit for some of the time he spent on bail. Mr. Oliveira operated a vehicle, striking the victim, who was riding a bicycle. The victim succumbed to his injuries, and lost his life. Mr. Oliveira did not stop, and did not turn himself in until two days later. The sentence included a two year driving prohibition, and a probation order with 240 hours of community service.

[38] R. v. Smith (2015) - Suspended Sentence

In R. v. Smith [2015] O.J. No. 134, Justice DeFillipis suspended the passing of sentence placing the offender on probation for two years. In arriving at that decision, he wrote this:

Although denunciation and general deterrence point to incarceration as the appropriate response, considering the defendant injured his passenger and could have injured others, his youth, guilty plea, and lack of criminal record were important mitigating factors. The right balance was achieved by suspending sentence and placing the defendant on probation.

[39] Smith - Multiple Offences

This was a concurrent sentence for three offences: impaired driving causing bodily harm, dangerous operation of a motor vehicle and failing to remain at the scene of an accident.

[40] R. v. Rayner - Intermittent Sentence

Also instructive, if not entirely on par, is the court's decision in R. v. Rayner [2014] O.J. No. 2444, where Justice Harris saw fit to impose a 60 day intermittent sentence for the offence of dangerous driving causing bodily harm. Jail was imposed, but far less than would ordinarily be the case. The obvious distinguishing feature here is Rayner deals only with the substantive offence of bad driving, there being no charge that the offender failed to stop and assist. There is a debate to be had here, that focusses on whether one is more morally culpable by committing a bad act which directly leads to harm, or one who, while not causing the harm through a criminal act, fails to fulfill their moral and societal obligation to assist. Reasonable people can disagree on this, and I suppose it could be they are equivalents, but to compare and contrast various approaches to similar cases highlights the difficulty in placing conduct on the spectrum of seriousness, which is a prerequisite to determining a fit sentence.

[41] Rayner as Comparative Authority

The point in referencing Rayner is to simply illustrate an approach and sentence that is outside the range suggested by the Crown in Ms. Smith's case, for someone who is, arguably, as morally culpable.

Offender-Specific Factors

[42] First-Time Offender and Deterrence

There is no question that Ms. Smith would not fit well within the milieu of a jail. She committed a crime, no doubt, but she has no criminal antecedents. I would go so far as to say she has specifically been deterred, and that it would be naïve to think housing her in a jail cell and exposing her, for the first time, to the criminal element, will enhance that effect. I am confident she won't ever do this again, and that we won't see her stand as a defendant in a criminal prosecution after today.

[43] Parental Status and Pro-Social Life

This is not to suggest first time offenders, who live predominantly pro social lives, should never go to jail, nor does it mean being a parent of young children is a get out of jail free card. But both considerations are a part of the overall picture. These realities should, and in this case will, impact the nature of the sentence, and quantum.

Victim Impact

[44] Victim Impact Statements

As I have already stressed, victim impact is a factor to consider. The statements prepared by Ms. Chmara and her mother were powerful, and gave me insight into the consequences of Ms. Smith's behavior.

[45] Purpose of Victim Impact Statements

Beyond the statutory right for a victim to provide their very important input, it is always helpful to remind ourselves of the purpose of victim impact statements. The intention is not for the statement to direct, at least not to any significant degree, the severity of the penalty ultimately imposed. In fact, Canadian courts have been careful to avoid any appearance that it impacts, for example, quantum. It is a factor, among other factors. It provides victims a voice, where they didn't before have one, and this does represent an important step in the evolution of Canadian criminal law.

[46] Crime as Wrong Against Community

We must, however, recognize that a crime is more than the occasion of harm upon an individual. It is that, but it's more than that. It is a wrong against the community as a whole. Which is to say this - the equation should never be to conflate the measure of one's life with the amount of time one spends in a jail cell. Ms. Chmara has value beyond that, and I won't trivialize her real trauma and extensive injuries by artificially attempting to place that kind of price on it.

[47] Alternatives to Custody

By the same token, and this is to state the obvious, the more serious the harm, the, practically speaking, higher likelihood a penal consequence will be imposed. But the question remains, is there an alternative to custody that is reasonable in the circumstances. Because, despite the proliferation of mandatory minimum jail sentences; despite the limiting of conditional sentences (which by the way would have been a very constructive and legitimate option in this case); and notwithstanding the seeming increased prominence of general deterrence, and reliance on incarceration as a sentencing tool, there are other ways to hold people accountable, and to engage in appropriate messaging with the broader public.

[48] Jail Not the Only Option

In this case, jail, while available, and while the typical punishment, is not the only viable sentencing option.

Sentence

[49] Sentencing Order

I am going to impose a $1000 fine. Ms. Smith will have a year to pay that fine and the 30% victim fine surcharge. In addition, I make a probation order. It will be in effect for two years, during which time she'll be bound by these terms:

• Keep the peace and be of good behavior and abide by all statutory terms;
• Report to probation today and thereafter as required;
• Not operate or be in the care and control of a motor vehicle;
• Complete 200 hours of community service, completing them at a rate and in a manner approved of by probation. She will have to complete them before the order expires, but I will note that once the hours are complete, the reporting obligation will end.

[50] Driving Prohibition

Finally, I prohibit Ms. Smith from operating a motor vehicle on any street, road, highway, or other public place. This order will remain in effect for two years, starting today.

[51] DNA

DNA is declined.

January 29, 2016

Justice Jonathon C. George