Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 09 03 COURT FILE No.: Hamilton 4711 998 22 47101503

BETWEEN:

HIS MAJESTY THE KING

— AND —

COREY PARNELL

Before: Justice Davin M.K. Garg

Heard on: August 6, 2024 Reasons for Sentence released on: September 3, 2024

Counsel: Matthew Moser, counsel for the Crown Adrianne DiSimoni, counsel for the defendant Corey Parnell

GARG J.:

Overview

[1] Corey Parnell fled from the police in a dangerous manner. He was also overheld in custody when he was not released on a valid release order. These reasons address both the appropriate sentence and the appropriate remedy for the overhold.

[2] Mr. Parnell was found guilty after trial of dangerous driving and flight from police: see R. v. Parnell, 2024 ONCJ 310. He took off from a traffic stop and rapidly accelerated. He was going well above the speed limit. As he approached a red light, he went straight through without slowing down. He had not given himself the time to stop if someone entered the intersection on their right-of-way. Mr. Parnell drove in this manner because he was trying to flee from the police. This motive overwhelmed his thought process and rendered him a significant danger on the road.

[3] Mr. Parnell was also overheld in custody for two days. [1] He ought to have been released when the federal charges holding him in custody were withdrawn. I declined to stay the proceedings. Both parties ask me to fashion a Charter remedy under s. 24(1) by reducing Mr. Parnell’s sentence.

[4] For the reasons that follow, the appropriate sentence is a global custodial term of 120 days, reduced to 60 days as the remedy under s. 24(1). I also prohibit Mr. Parnell from operating a motor vehicle for the custodial term plus two years.

Positions of the parties

[5] The Crown seeks a custodial sentence of three to four months in jail and a driving prohibition of one to three years. The Crown also raises the possibility of probation but does not insist on it. The Crown then seeks a remedy of 60 days for the overhold, leaving Mr. Parnell to serve 30-60 days.

[6] The defence seeks a non-custodial sentence. After accounting for the overhold, the defence asks me to impose a fine.

General principles

[7] The goal of any sentence under the Criminal Code is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. The fundamental principle of sentencing per s. 718.1 is to impose a sanction that is proportionate to the gravity of the offence and the offender’s degree of responsibility. The sentence that I impose must be tailored to Mr. Parnell’s circumstances and the circumstances of the offences that he committed.

Aggravating and mitigating factors

[8] I have identified the following aggravating circumstances:

(1) The nature of the offence. Defence counsel highlighted the absence of aggravating features that are sometimes present in dangerous driving cases: e.g., a collision, impairment, or the consumption of intoxicants. However, it is the intentionality of the driving conduct that is aggravating in this case. Mr. Parnell wilfully drove through a red light at a high rate of speed because he was fully committed to escaping the police. His manner of driving and underlying motivations could be analogized to street racing. The risk to society is similar. I find that Mr. Parnell was racing against police officers that, in his mind, could have been pursuing him. [2]

(2) Pattern of undermining the administration of justice. Mr. Parnell obstructed the traffic stop and ensuing investigation through his flight. His decision to flee continues a pattern of disrespecting the criminal justice system. Mr. Parnell has five entries on his record for offences against the administration of justice, including a conviction in March 2019 for failing to comply with a recognizance. The dangerous flight from police continued that pattern in a way that put the public at risk.

[9] I also find that Mr. Parnell lacks sufficient insight into his behaviour. This factor is not aggravating, but it demonstrates the absence of a common mitigating factor. I accept that a custodial sentence would create certain collateral consequences for Mr. Parnell and his family. I must consider whether a custodial disposition is appropriate given these consequences. But Mr. Parnell must understand that the consequences arise from the offences that he committed. Mr. Parnell is responsible for his actions. He is thus responsible for the consequences that flow from the sentence imposed for his actions. This sentencing objective of promoting a sense of responsibility in offenders is referenced in section 718 (f) of the Criminal Code.

[10] Turning to the mitigating circumstances, I accept that Mr. Parnell has endured challenging circumstances in his life, including his prior encounters with the police. These encounters were elicited during his testimony at trial. While not supplying a lawful defence, they reduce Mr. Parnell’s moral culpability for taking flight to a limited extent.

[11] It is not aggravating for a person to exercise their constitutional right to a trial. I decline, however, to grant Mr. Parnell mitigation for running a somewhat focused trial. It is not surprising that identity was not in issue when the officer was left holding Mr. Parnell’s driver’s license after he took flight.

Analysis

[12] After considering Mr. Parnell’s criminal record and the facts of this case, I agree with the Crown that a non-custodial sentence would send a message that a person should drive away as fast as they can when they do not want to remain at a traffic stop. A non-custodial sentence would fail to achieve the necessary level of specific and general deterrence. If the objective risk of harming his fellow citizens was insufficient to deter Mr. Parnell’s behaviour, then I must fashion a sentence that will. While I cannot sentence Mr. Parnell for consequences that did not occur (e.g., no one was injured or killed in this case), my sentence must deter Mr. Parnell and others from driving in a manner that brings the potential for tragic consequences. When sentencing an offender for a driving offence, the focus is on the conduct of the offender and not the consequences: see R. v. Mitchell, 2016 ONCJ 731 at paras. 26-27; R. v. Babulal, 2020 ONCJ 140 at para. 19. As Parliament decreed through section 320.12(b), “the protection of society is well served by deterring persons from operating conveyances dangerously … because that conduct poses a threat to the life, health and safety of Canadians”.

[13] It is difficult to pin down the applicable range of sentence because dangerous driving and flight from police can be committed in many ways. But I am satisfied that the Crown’s proposed sentence is well within the appropriate range. For example, in R. v. McCool, 2024 ONCA 457, the offender was also convicted of dangerous driving and flight from police. The Court of Appeal sentenced the offender to an effective global sentence of two years less a day. The facts in that case were significantly more aggravating. The offender was also an eight-time suspended driver with a related criminal record. But McCool nonetheless offers some support for the Crown’s position of three to four months in custody. As the Court of Appeal explained in McCool at para. 43, there is a “grave risk of harm that arises in similar cases of flight from police … The fact that no one was injured in this case in no way diminishes the gravity of the respondent’s conduct or the moral responsibility that she must accept.” I am also guided by Gorman P.C. J.’s comments in R. v. Wight, 2022 NLPC 1320A00365 at para. 70 that “periods of incarceration are routinely imposed for the offence of flight from the police. This offence has the potential to place police officers and the public at risk. General deterrence and denunciation must be stressed”. [3]

[14] I am satisfied that a four-month custodial term is the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction.

Charter remedy for the overhold

[15] Mr. Parnell had a release order for the present charges. He was then arrested on new charges and did not get bail. When those new charges were eventually withdrawn, Mr. Parnell ought to have been released on the existing release order. I found that the Crown’s anticipated application to cancel the release order under s. 524 of the Criminal Code did not encumber its validity. It took mistakes by multiple actors across the justice system—including the Crown, the defence, and the court system—for Mr. Parnell to remain in custody until he was released two days later. While I declined to stay the proceedings, the parties jointly seek a sentence reduction under s. 24(1) of the Charter.

[16] The Crown submits that a 60-day sentence reduction is an appropriate remedy for the overhold and would give effect to my findings on this issue. [4] I find that a 60-day reduction would more than demonstrate this court’s concern with the process that led to the two-day overhold. The reduction would send a message to the public and the justice system of the need to prevent this situation from reoccurring. It would go well beyond merely offsetting the two-day overhold. I find that this remedy would restore public confidence in the justice system, regardless of whether it also provides an incidental benefit to Mr. Parnell: R. v. Brown, 2024 ONCA 453 at para. 66.

Driving prohibition

[17] Section 320.24(5)(c) allows me to prohibit Mr. Parnell from operating a motor vehicle for a maximum of three years in addition to the entire period of imprisonment.

[18] The offences demonstrated Mr. Parnell’s disrespect for highway safety and highlighted the risk that he posed to the public that day. Speeding through a solid red light on a Friday night put the pedestrians and other motorists at risk of serious injury or death. In some respects, the risk to public safety was greater than the risk that flows from an ordinary “80 plus” or even impaired driving case, where the risk is inherent but not necessarily evinced by aggressive, erratic, or dangerous driving. Mr. Parnell’s decision to drive at an elevated speed was also not limited to a brief moment. There are multiple blocks between when Mr. Parnell took off from the traffic stop and where the officer lost sight of him.

[19] Mr. Parnell comes before this court without driving-related entries on his criminal record. But the analysis cannot be limited to counting the prior driving offences. The multiple breaches on his record tell a relevant story as well. They reveal that Mr. Parnell has not complied with the rules imposed to manage his risk to society. The driving conduct here supplies another example of Mr. Parnell ignoring rules that are vital to controlling risks to public safety.

[20] The facts of this case, in conjunction with Mr. Parnell’s pattern of conduct, supports the imposition of a significant driving prohibition. I fix the prohibition at two years in addition to the custodial term.

Disposition

[21] I would have imposed a global sentence of 120 days in jail. The global sentence is 60 days after granting the Charter remedy. The sentence breaks down as follows and is concurrent on both counts:

• Pre-sentence custody of 32 real days with enhanced credit of 48 days.
• Further jail sentence of 12 days.
• Driving prohibition of 2 years and 12 days.
• I decline to impose probation.
• I give 9 months to pay the $200 victim surcharge.

[1] R. v. Parnell, 2024 ONCJ 310 at paras. 36-63.

[2] I am not treating the mere fact that Mr. Parnell fled from the police as aggravating on the dangerous driving offence given that he is also being sentenced for the flight offence.

[3] The offender in that case was sentenced to a three-month conditional sentence. The facts of that case were probably more serious, but the offender pleaded guilty and had no prior convictions. See also R. v. Rogers, 2008 NLCA 19, where the Court imposed a 12-month jail global sentence for the offences of dangerous driving and flight from police.

[4] R. v. Parnell, 2024 ONCJ 310 at paras. 67-69.

Released: September 3, 2024 Signed: Justice Davin M.K. Garg