Court File and Parties
COURT FILE NO.: 7735/17 DATE: 2018-11-13
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Kelly A. Weeks, Counsel for the Crown
- and -
NICHOLAS ROBERT BERTO Accused C. Bruce Willson, Counsel for the Accused
HEARD: October 10 and 11, 2018
RASAIAH J.
Reasons on Sentencing
Introduction
1On May 23, 2018 a jury found Mr. Nicholas Berto guilty of dangerous driving causing bodily harm and failing to stop at the scene of an accident.
2On October 10, and 11, 2018, a sentencing hearing was conducted.
3Following the receipt of victim and community impact statements, and evidence, I heard submissions from the defence and the Crown.
Summary of the Position of the Crown and Defence and Issues
4The Crown and defence did not agree on some of the facts necessary for determining sentence; they did not agree on whether certain aggravating or mitigating facts were proven; they did not agree on the weight, if any, to be given to certain factors; and they did not agree on what would be the appropriate sentence in this case.
5As I understand the position of the Crown, the Crown asks the court to impose for the dangerous driving offence, a sentence of imprisonment between two to three years, but closer to two years based on the mitigating factors; and for the fail to stop at the scene of the accident, a sentence of imprisonment of 1 year, consecutive. In addition, the Crown seeks a five-year driving prohibition; a DNA data bank order; the mandatory s. 109 firearms prohibition order for a period of 10 years; and on consent, a forfeiture order of Mr. Berto’s vehicle that was seized by the police following his arrest.
6A condensed summary of the Crown’s position is that society and our community demand that persons who commit offences of this nature and who then fail to remain at the scene in circumstances such as this case be severely sanctioned and punished. A message must be sent to Mr. Berto and others that this conduct will not be tolerated or go unpunished, despite the mitigating factors that exist.
7The Crown emphasized that deterrence and denunciation are the most important factors and primary objectives for the court to consider in respect of both offences, acknowledging that individual deterrence and rehabilitation are paramount when sentencing youthful first offenders generally, but not for very serious offences and offences involving violence.
8The Crown sought specific findings that Mr. Berto’s conduct and driving in this case were intentional and accordingly, aggravating; and his failures after the accident were serious and aggravating.
9The Crown did not agree that Mr. Berto’s driving was a “one-off” despite the positive pre-sentence report comments (hereafter referred to as “PSR”).
10In respect of the bail conditions Mr. Berto was on following his arrest, the Crown submitted this factor should be afforded little weight if any.
11The defence asked the court to consider a short sharp sentence on the dangerous driving offence that could be served locally, that would not be more than 90 days (and that there was precedent for that), noting that all options other than conditional sentence order were open to the court for this offence.
12On the offence of fail to stop at the scene of the accident, the defence pointed out that all options for sentencing were available, however, if the court was considering a custodial sentence, the defence asked that the court impose a conditional sentence order, the length of which and conditions for which, defence would leave to the court.
13Defence raised the option of a following probation order with terms for counselling and to report to a probation officer.
14In respect of a driving prohibition, defence asked the court to note that Mr. Berto has already been prohibited from driving for the past two and a half years as a term of his bail and that if the court was going to impose make a prohibition order, that it be for one year in duration on this basis.
15The condensed summary of the defence position is the following: before the court is a genuinely remorseful, employed, youthful, first offender with a cognitive impairment and anxiety disorder, who presents with a very positive pre-sentence report in terms of character, attitude and support, who presents with a low risk to re-offend, who engaged in a short period of dangerous driving, whose driving in a momentary out of character error in judgment, admittedly but unintentionally, caused serious injuries to the victim - but to some extent unforeseeable injuries. Before the court is an offender who was placed on and remained on strict bail conditions without any allegations of breach, and who as part of this process has consented to forfeiture of the vehicle involved in the accident.
16Defence counsel emphasized restraint and its reach in respect of youthful, first time offenders in respect of crimes ordinarily and predominantly governed by the objectives of deterrence and denunciation. The defence also emphasized proportionality; specific deterrence and rehabilitation with respect to youthful first offenders.
17The defence submitted that the Crown’s submissions regarding Mr. Berto’s intentions with his driving were different than that submitted at trial and the finding sought was being opposed, as well as findings with respect to Mr. Berto’s conduct before he got into his truck.
18The defence made no submissions opposing the DNA data bank order or s. 109 order being requested by the Crown.
Summary of the Facts
19In respect of determining the facts following a jury verdict, in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18, McLachlin C.J., as she then was, stated:
16… unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
17Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 SCC 73, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995).
18Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; -to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 SCC 30, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
20It is appropriate for the trial judge to consider the legal instructions to the jury in this process: Ferguson, para. 20.
21The sentencing judge is not obliged to assume that the jury took “the most lenient path to conviction”. R. v. Nelson, 2014 ONCA 853 at para. 56.
22Based on the verdict, it is clear that the jury found beyond a reasonable doubt that Mr. Berto operated a motor vehicle, in a manner that was dangerous to the public, that his driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances.
23I am satisfied that it is fair, reasonable and necessary for me to set out and determine the following facts based on the verdicts, and/or the evidence the jury was entitled to consider to permit the proper sentence to be imposed.
24On the evening of March 11, 2016, in the City of Sault Ste. Marie, Mr. Paul VanderGriendt and a number of his colleagues and friends, as well as students from the Sault College Aviation Program attended a retirement dinner at Grand Gardens. Following that dinner, a number of these attendees including Mr. VanderGriendt went to the Harp Bar and Grill, located in the Pine Street Plaza to continue their evening with each other. The consensus was that they were a large group, fifteen to twenty. Fourteen members of this group were able to be identified by name by the witnesses. The members of the group were mostly in their early to mid-twenties. They arrived at the bar at various times, starting at approximately 10:30 p.m.
25On that same night, Mr. Berto, age 18 at the time, and three his friends also attended the Harp Bar and Gill. They arrived at approximately midnight or a little later than that. This was their second attendance at the bar that evening.
26At some point after Mr. Berto and his friends arrived, a game of pool was had by Mr. Berto, one of his friends, and aviation group members Mr. VanderGriendt and Mr. Nicholas Gillanders. Before this evening, the aviation group, Mr. Berto and his friends were strangers to each other. Ms. Jessica Traynor who was also with the aviation group watched the game. During the game Mr. Berto flirted with Ms. Traynor. Ms. Traynor was the former girlfriend of Mr. Gillanders.
27The pool game ended on friendly terms, and at some point later, after the game, Mr. Gillanders and Mr. Berto were outside of the bar, smoking. They engaged in a conversation which at some point got on to the topic of Ms. Traynor and that conversation did not go well. The conversation escalated to an altercation between Mr. Gillanders and Mr. Berto. Mr. Berto did not deny that he started the physical altercation. He became upset and pushed Mr. Gillanders up against a window outside of the bar.
28Some of the members of the aviation group had been drawn outside because of the altercation and heated interactions that were going on outside of the bar. At some point another member of that group became involved in an altercation with Mr. Berto after Mr. Gillanders. The scene was charged, and there was yelling going on.
29At this point, which was close to 2:00 a.m., the bar was closing and more people, including more members of the aviation group were leaving the bar; and were outside in the parking lot in the area of the altercation or close by.
30A male bar employee, came out of the bar and asked Mr. Berto to leave. Mr. Berto’s friends were encouraging him to leave, which Mr. Berto did not recall, but agreed may have happened. Mr. Berto was described as being very angry, belligerent, and aggressive. However, once asked to leave by the bar employee, Mr. Berto started to leave and walk toward his truck. There was still back and forth yelling going on at this time but no further altercations.
31I agree with the defence that for purposes of sentencing it need not be determined by me who started the discord that led to the physical altercation. Mr. Berto admitted he started the physical altercation with Mr. Gillanders because he was angry and upset. Mr. Berto was the initial physical aggressor. Mr. Berto did not testify that Mr. Gillanders was threatening violence against him in any way. He was upset and angry about what he stated Mr. Gillanders was saying at the time. He grabbed Mr. Gillanders.
32At some point while Mr. Berto was walking toward his truck some members of the group and a friend of Mr. Berto were also walking behind Mr. Berto. Mr. Vein testified that it may have been six to seven people. The evidence was, that during this time frame that either a beer bottle was thrown at Mr. Berto, and picked up by Mr. Berto, or, that Mr. Berto took a beer bottle out of his truck and smashed it on the ground - following which Mr. Berto brandished it toward the group in an aggressive manner. Yelling and loud conversation were still occurring during this time. The witnesses could not remember what was being said, but the witness testimony was that the people that were behind Mr. Berto, including his friend were there to ensure that Mr. Berto went to his truck to encourage him to leave.
33As to the beer bottle incident, the Crown seeks a finding that Mr. Berto took the bottle from his truck, smashed it on the ground and brandished it to establish that Mr. Berto was intentionally escalating an already tense situation. The defence says this is not something that needs to be decided for purposes of sentencing. I agree from this perspective. Whether the bottle was thrown or Mr. Berto took it out of this truck, aggressive behaviour and anger is unquestionably being demonstrated during this time period, which behaviour admittedly included a very strong reaction on the part of Mr. Berto toward the group, namely to brandish a broken beer bottle into their direction; and that Mr. Berto was clearly angry and upset when he got into his truck. The defence agreed the court should/could find that Mr. Berto was angry and agitated when he got into his vehicle.
34In addition, thereafter, the uncontradicted evidence was that after the beer bottle was brandished everyone backed up and retreated away from Mr. Berto.
35There was no evidence that after Mr. Berto got into his truck that any members of the group attempted to or sought to continue interaction with Mr. Berto.
36When Mr. Berto got into his truck, it was approximately 2:00 a.m. in the morning of March 12, 2016.
37Mr. Berto’s vehicle is a large domestic jacked-up 2007 GMC pick up with large knobby tires. Mr. Berto had installed a seven-inch lift kit on the truck. He bought this truck himself with his own money in September of 2015 and he agreed that he was familiar with the functions, handling and capabilities of the truck. Mr. Berto was a novice driver, having a valid G2 licence effective August 18, 2014. He had approximately 19 months experience as a G2 driver.
38Once inside of the truck, Mr. Berto testified that he made a decision to leave. He backed up his truck and angled it in the direction of the crowd who are at this point, no longer near him or his vehicle, and drove forward right towards them. He said this decision was made because this was the way he travelled home based on where he lived at the time. Mr. Berto testified that his approach was not slow but not too fast. He then came to a brief stop, within a matter of seconds. The stop thereafter was also brief.
39Mr. Berto testified that it was after the stop, that he realized that the crowd was not going to separate; that they were yelling at him; hitting his vehicle and kicking the back of his vehicle and bumper. He feared that someone was going to punch him through his open driver’s side window (that he had down to continue yelling at the group on his approach to apparently get them to get out of the way). Because of this, he testified that he made a sudden sharp turn out of fear and natural instinct. He presented his reaction at trial as self-defence.
40Based on the jury’s verdict, it is clear that they rejected the defence of self-defence. What is not clear is the stage at which they rejected it. Intention was not something made known by the verdict either.
41I reviewed the evidence the jury was entitled to consider. I do not believe Mr. Berto’s evidence that he backed up his truck and angled it in the direction of where the group was standing simply because that was the way he wished to exit. There were so many other ways he could have exited the parking lot. He did not have to go towards the crowd to use the Allard exit as evident by the photographs and drawings of the parking lot filed at trial. His approach toward the crowd was immediately after the beer bottle incident that he admittedly was angry and upset about. While I do not believe that Mr. Berto intended to run someone over with this driving stunt, I am satisfied based on the evidence beyond a reasonable doubt he intentionally drove toward the crowd, that he did so when he was in an angry and upset state, and that he intended to use his vehicle and operate it in a way to intimidate the group before leaving the parking lot to go home. In my view, it was an irresponsible exit intimidation tactic that went wrong.
42Further, I did not interpret the Crown’s submissions to suggest, as defence was concerned, that Mr. Berto meant to specifically strike Mr. VanderGriendt or to cause him the injuries he did or to strike anyone else for that matter. The submission was that he intentionally and deliberately drove his vehicle in an aggressive and dangerous manner at a group of people and that he meant to do that. I agree. This position was consistent with the position taken by the Crown at trial, namely that Mr. Berto did this to intimidate the crowd of pedestrians and that it was an intentional and objectively dangerous act.
43I do not believe that one or more of the members of the group were kicking or hitting Mr. Berto’s truck or that someone was trying to. I do not believe that someone was at the driver’s side of his truck in such a way that caused him to fear that he or she would get up on to his truck to punch him through his open driver side window. I am not left with a reasonable doubt by his evidence either or on the rest of the evidence. Even taking into consideration that the video evidence of the driving was motion activated, the stop was brief by all accounts, including Mr. Berto’s. He said that the crowd was kicking at the back of his vehicle and his bumper and hitting his vehicle. There was no evidence of that kicking or hitting on the vehicle in the locations he stated. I accept the evidence of Cst. Poderys who examined the vehicle after it was seized and who noted no evidence that would match Mr. Berto’s evidence. There was no demonstrated dirt transfer in the layer of dirt on the truck or damage that was consistent with the described kicking or hitting. I am satisfied beyond a reasonable doubt based on the video and evidence of Cst. Poderys and other witnesses that the group was in fact reacting in shock and fear; and scattering and trying to flee within the short period after Mr. Berto drove his vehicle towards them. You can see the people fleeing on the video before the vehicle even makes the turn. Bar employee, Mr. Fyfe testified as to what he saw. His observations started when the truck was already stopped at the group. He heard Mr. Berto revving his engine. Others heard the revving. Mr. Fyfe interpreted it as Mr. Berto signalling for the group to get out of the way. According to Mr. Berto, he already had his window down yelling at them to get out of the way. Mr. Fyfe thought the truck was lurching or lunging forward to try to leave. Mr. Berto could not remember lurching or lunging forward. Mr. Fyfe described the group around the truck at that point as merely pointing and yelling at the truck and provided no evidence of seeing anyone making contact with the truck in any way during that period. Then he saw the truck jack-knife as he described it in an abrupt way, at which time he saw someone bump off the front grill before getting away, and then Mr. VanderGriendt got run over. He felt the jack-knife motion was reflective of the driver losing control of the vehicle. When the truck clears the parking lot after having run over Mr. VanderGriendt, there are no people near the back of the truck, there are people in the back in the distance. You then see the crowd immediately running back over towards Mr. VanderGriendt.
44Bradley Vien testified that there were six to seven members of the group at the time in the location Mr. Berto drove towards. The video and evidence support that there were at minimum three just before the turn but was consistent with there being more than this amount when he drove towards the group looking at the images that appear to be moving and running away from the truck. The testimony included that Mr. Gillanders, Ms. Reid-Sneath and Mr. Vien were near the entrance to the Harp. Mr. VanderGriendt and Mr. Doleman were in the front of the truck. Ms. Traynor and Ms. Capstick indicated that they had backed up to get out of the way when the truck came toward the crowd. Ms. Capstick stated she went to the driver side to move out of the way of the truck but she had her back to the truck when the accident occurred. Dean Sater had left the bar before the accident happened.
45During the course of making the sharp turn to leave the parking lot, Mr. Berto ran over Mr. VanderGriendt. This also is captured by the video. In terms of how he made the turn, Mr. Berto described it as an aggressive motion and that he accelerated quickly. Tire marks were left. During examination in-chief, Mr. Berto stated that he did not go forward because there were people there. In cross-examination, he stated he did not look. Mr. Berto acknowledged that he should have looked.
46Mr. VanderGriendt was in front of the truck and according to the testimony had initially taken a defensive step toward the truck and put his hands up and out simply in a protective manner when the vehicle came toward the group and may have touched the truck but then quickly turned and was running away. There was no evidence that Mr. VanderGriendt was involved with any of the exchanges between the group and/or Mr. Berto, making him an innocent bystander.
47Mr. VanderGriendt was seriously injured. The extent of his injuries included: (1) a collusion of the proximal left subclavian artery; (2) hangman fracture type 2 with traumatic spondylitis of C-2 and disrupted C-2, C-3 disc; (3) displaced fractures of the spinous processes C6 through T3 levels, along with multi-level interspinous ligament injury; (4) thoracic spinous process fractures extending from T1 to T8; (5) fracture of the left T1 transverse process; (6) fracture C6 spinous process; (7) fracture C7 spinous process and left transverse process; (8) small bilateral pneumothoraxes; (9) small lung laceration measuring .7 centimeters on the right upper lobe; (10) lung contusion involving the posterior aspect of the left lung and right upper lobe; (11) nondisplaced fracture through the right scapula; (12) commuted fracture of the left scapula; (13) nondisplaced fractures of the right first rib and left first through third ribs; (14) nondisplaced fracture through the mid portion of the sternum.
48Following one of the number of surgeries he underwent, Mr. VanderGriendt was noted to have no motor function to all four extremities and no central response to pain. Post-operatively Mr. VanderGriendt initially had been moving limbs spontaneously. After testing, it was determined that Mr. VanderGriendt developed severe axonal Guillain Barre Syndrome. Mr. VanderGriendt spent approximately six months in the hospital. He was discharged and transferred to Lyndhurst Rehabilitation to the spinal cord program where he stayed for approximately five and a half months before being discharged for an outpatient follow-up care program. His discharge diagnosis was C4 tetraplegia, severe Guillain-Barre syndrome, significant injuries from the m.v.a., tracheostomy, now decannulated, G-tube, now removed, sinus tachycardia, NYD (not yet diagnosed), left subclavian and vertebral artery dissection, treated with clopidogrel, and neuropathic pain. Mr. VanderGriendt remains dependent for all activities of daily living.
49Based on the jury’s verdict and the evidence the jury was entitled to consider, Mr. Berto knew that the vehicle was involved in an accident; that he knew that someone involved in the accident was injured or required assistance; Mr. Berto failed to stop and identify himself after the accident; Mr. Berto failed to offer assistance to Paul VanderGriendt who was injured and needed assistance; and Mr. Berto did so intending to escape liability for the accident.
50Cst. Poderys opined, based on Mr. Berto’s vehicle and the manner in which Paul VanderGriendt was run over, that when the vehicle was in the process of running over Mr. VanderGriendt, Mr. Berto would have felt it. Mr. Berto testified that he did in fact feel a bump and he did figure that he had hit something or someone but he continued to get really scared and took off.
51Mr. Berto left the parking lot accelerating. He travelled at a high rate of speed away from the scene starting as low as 88 km per hour and ending up as high as 117 km per hour in a 50km/hr zone over a short stretch of the road (that the near-by gas station cameras were able to capture), and during this time he travelled through a red light at an intersection where there was other vehicular traffic.
52Mr. Berto did not stop anywhere to report the accident or call 911. Mr. Berto testified that he remembered coming to a stop somewhere, shortly after he left the accident scene at which time he placed a call to one of his friends, who was still at the accident scene. After that call, Mr. Berto testified that he felt that he was in trouble with police, and that he actually knew that someone was hurt. He described that he was shaken up and that he needed his own time to figure things out. He continued to drive his vehicle to a property owned by his parents, where he admittedly hid the vehicle. Mr. Berto testified that he ended up hiding the vehicle at first to take a mental break, but agreed that he was also thinking about the police and whether or not they would see his side of the story. He testified that he was scared and fearful; he felt he was in legal trouble also, and he wanted the truck hidden so the police wouldn’t get it right away, while he pondered his thoughts. Mr. Berto thinks he sat in his truck for a few hours, smoking and trying to figure out what to do next; lots of things were going through his mind. He eventually called his mother who brought him back to her home and they waited to talk to a lawyer as to how to proceed next, before attending the police station at 1:00 p.m. that same day where Mr. Berto turned himself in, approximately 11 hours after the accident.
Analysis
53It has been written many times that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code, R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.), at paras. 40-41; R. v. Ipeelee (2012) 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.) at paras. 37-39.
54The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence: R. v. Hamilton, para 90.
55The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Doherty J.A., Hamilton, para 91.
56In R. v. Priest (1996), 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 (C.A.) at pp. 546-47 O.R., pp. 297-98 C.C.C., Rosenberg J.A. described the proportionality requirement in this way:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
57In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other: Hamilton, para 94.
58Parity, totality, and restraint are also principles which must be considered when determining an appropriate sentence. Subsections 718.2 (b),(d) and (e) of the Criminal Code provide respectively: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.
59In fixing the appropriate sentence for a young first offender facing a period of incarceration, the period imposed should be as short as possible while giving adequate weight to the principles of general deterrence and denunciation: R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont. C.A.).
60In R. v. Currie, 2018 ONCA 218, para. 4., the Court of Appeal considered the imposition of a sentence on a youthful first offender in a dangerous driving case on the basis of sending a message of deterrence to the community, and they did not consider it an error to do so. The court stated the following:
Primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation: R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) and R. v. Priest, supra. Age and unblemished record are considerations. This was a serious accident that will have devastating lifelong impacts. Particularly because of this factor it is essential that the courts sent a message to young people, to protect both them and the public from the serious consequences of such conduct. Denunciation and deterrence must be a paramount consideration.
61The fundamental principle of sentencing is intimately tied to the fundamental purpose of sentencing, namely, respect for the law and the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Just sanctions should reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders from society when necessary, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community: Section 718 of the Criminal Code; Ipeelee, at paras. 37-39.
62The relevance and relative importance of each of the objectives identified in s. 718 will vary according to the nature of the offence and the circumstances of the offender: R. v. Lyons, 1987 SCC 25, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, at p. 329 S.C.R.; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, 148 C.C.C. (3d) 1, at pp. 116-18 S.C.R., p. 23 C.C.C.: Hamilton, para. 102.
63The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender: R. v. Currie, 1997 SCC 347, [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at pp. 278-80 S.C.R., p. 219 C.C.C.; R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, at para. 80 S.C.R.; R. v. Proulx, 2000 SCC 5, supra, at pp. 105-08 S.C.R., pp. 485-86 C.C.C.; R. v. Borde (2003), 63 O.R. (3d) 417, 172 C.C.C. (3d) 225 (C.A.) at pp. 429-30 O.R., p. 238 C.C.C., Ipeelee, at paras. 37-39.
64Doherty J.A., Hamilton, at para 111 wrote:
Fixing the range of sentences for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the "objective seriousness" of the crime: R. v. H. (C.N.), supra, at pp. 574-75 O.R., p. 266 C.C.C. Once the range is identified, the sentencing judge must consider specific aggravating and mitigating [page 32] factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.
65The range of sentence for the offence of dangerous operation of a motor vehicle causing death or bodily harm is very broad: R. v. Phillips, [2005] O.J. No. 155 (C.A.), at para. 21.
66In R. v. Rawn, 2012 ONCA 487, the court wrote at paragraphs 43-44:
In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range for impaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146, at paras. 59-61. More substantial sentences were available in certain cases; in Van Puyenbroek itself a three year sentence was upheld.
Then, in 2007, s. 742.1 of the Criminal Code was amended to exclude the availability of conditional sentences for serious personal injury offences. Given the injuries suffered by Ms. Snyder, this case clearly qualifies: Belanger, at para. 4. While it follows that a conditional sentence is not available in this case, the more important consequence of this amendment is that it signals that Parliament has determined that conduct of this nature will not be tolerated.
67The offence of dangerous driving causing bodily harm provides for a sentence not exceeding ten years. The scale of punishment provided in the Criminal Code for dangerous driving increases or rises relative to the consequences that flow from dangerous driving. Other than conditional sentence, all of the other sentencing options are available.
68The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes: R. v. McMertry (1987), 21 O.A.C. 68, at para. 11. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured: R. v. Rawn, 2012 ONCA 487, para. 41.
69The dangerous driving sections of the Criminal Code exist to combat the operation of motorized vehicles in a manner that is dangerous to the public. The section focuses on the danger to the public; the nature of the place where the operation took place; the condition of the place where the operation took place; the use of the place where the operation took place and the amount of traffic that is or might reasonably be expected to be present; and finally, if the conduct engaged in reflects a marked departure from the expected standard of care of a prudent driver in the circumstances: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Hundal, 1993 SCC 120, [1993] 1 S.C.R. 867.
70The offence of fail to stop at the scene of an accident provides for a sentence not exceeding five years. The full range of sentencing options are available. While perhaps only limited assistance may be derived from review of individual fail to remain sentencing cases, the range of sentence appears to be roughly three months to two years.
71The primary objectives when sentencing for this offence are: general deterrence; specific deterrence (especially if there were attempts made to avoid detection); and protection of the public. The court will look at characteristics of the offender including age, employment history, and attempts at or prospects for rehabilitation. The cases also highlight certain aggravating factors one of which includes awareness of the injuries: R. v. Gummer, at paras. 15 and 16, R. v. Ramdass, at paras. 5 and 6, R. v. Boukchev, [2003] O.J. No. 3944 (C.A.), at para. 6, R. v. Fortin, [1984] O.J. No. 158 (C.A.), at para. 6, R. v. McLaren, [1999] 45 M.V.R. (3d) 120 (ONCA), and R. v. Sanford 2014 ONSC 5555.
72In Gummer, at paragraph 16, the court stated:
In our view, 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.
73In Gummer, at paragraph 14, the court wrote that failure to stop when you are aware that you have struck someone is serious, and exhibits a grave failure to comport with the standards of humanity and decency.
74The offences of dangerous operation of a motor vehicle and failing to stop at the scene of an accident protect different social interests. It follows that the rule or principle of sentencing that sentences for offences arising out of the same transaction or incident should normally be concurrent, does not necessarily apply when the offences constitute invasions of different legally protected interests. Subject to the principle of totality, consecutive sentences are warranted: R. v. Gummer (1983), 1 O.A.C. 141, at para. 13; R. v. Van Puyenbroek, 2007 ONCA 824, 226 C.C.C. (3d) 289, at para. 63.
75General deterrence is aimed at discouraging others from engaging in criminal conduct by sending a message to those who may be inclined to engage in similar conduct: R. v. P (B.W.) (2006), 2006 SCC 27, 209 C.C.C. (3d) 97 (S.C.C.), at para. 2.
76An appropriate sentence for dangerous driving offences must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable: R. v. Rawn, 2012 ONCA 487, para. 45.
77In cases of dangerous driving where death or bodily harm is caused, the primary sentencing goals must be denunciation and general deterrence: see R. v. Belanger, 2009 ONCA 867, at para. 5; R. v. Nusrat, 2009 ONCA 31 at para. 67, [2009] O.J. No. 120 (C.A.), at para. 76; R. v. Kippax, [2010] O.J. No. 2021 (Sup. Ct.), at para. 30.
78In R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 (S.C.C.) Wagner J. stated at paragraph 73, that the objectives of deterrence and denunciation “are particularly relevant to offences that might be committed by ordinarily law abiding people”.
79In R. v. Proulx, 2000 SCC 5, supra, at paragraph 129, the court wrote:
…dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.) at p. 150; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.) at paras. 18-24; R. v. Blakeley (1998), 40 O.R. (3d) 541 (Ont. C.A.) at pp. 542-43.
80Specific deterrence is aimed at the offender himself to prevent the offender from repeating the offence.
81Denunciation is aimed at communicating society’s condemnation of the offender’s conduct. It is well established that denunciation focuses on the conduct assessed on the particular facts of the case, and preservation of the continued confidence of the public in the administration of the justice system by the imposition of sentences which are proportionate to society’s reasonable and fair-minded condemnation of the conduct. : [R. v. Latimer (2001] 2001 SCC 1](https://www.minicounsel.ca/scc/2001/1), 1 S.C.R. 3, at para. 86.
82In respect of rehabilitation and promoting a sense of responsibility in an offender, these considerations have restorative objectives in mind aimed at promoting correction and re-integration, and countering recidivism.
83If the appropriate range of sentence for an offence includes potential imprisonment, and if the trial judge excludes the need for a sentence of two years or more, the trial judge must then consider whether to impose a conditional sentence if that option is available: R. v. Proulx, 2000 SCC 5, supra, at pp. 97-99 S.C.R., p. 479 C.C.C. If the prerequisites of s. 742.1 of the Criminal Code are met, the judge must decide whether a conditional sentence is consistent with the statutory scheme of sentencing described in ss. 718 to 718.2. The court outlined a two-stage analysis for determining whether an offender should be permitted to serve his or her sentence in the community. At the first stage, the sentencing judge must make a preliminary determination of the appropriate range of sentence. Where the preliminary determination excludes both probationary measures and a penitentiary term, and assuming the other statutory prerequisites are satisfied, the sentencing judge should proceed to the second stage of the analysis. At the second stage, the sentencing judge will determine whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing outlined in ss. 718 to 718.2 of the Criminal Code.: R. v. Proulx, 2000 SCC 5, supra, at pp. 97-99 S.C.R., p. 479 C.C.C.: R. v. Hamilton, para 112.
84In R. v. Plein, 2018 ONCA 748 at para. 83, the court found that evidence of diminished intelligence may be important in identifying the moral fault and degree of responsibility of an offender that should be ascribed for the offender’s acts.
85In R. v. Downes, [2006] O.J. No. 555 (C.A.) at para. 37 the court wrote that time spent on stringent pre-trial bail conditions, especially house arrest, is a relevant mitigating factor. The amount of credit to be given is discretionary and there is no specific applicable formula to apply. The length of time spent under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity are factors. When an offender asks a sentencing judge to take this into consideration, the onus is on the offender to supply the judge with information in a contest as to the impact of the conditions and to establish these facts on a balance of probabilities.
86In R. v. Ijam, 2007 ONCA 597, the court wrote at paras. 36-37:
…I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.
The import of the above reasoning is this: pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases -- Downes, with long-term house arrest bail conditions, is one -- where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases -- Lawes and Hunjan are examples -- where this factor should attract little, if any, weight.
87The court received a positive PSR. The sources of information for the PSR included Mr. Berto, his mother, his father, his uncle, his aunt, his great uncle, three family friends, one of Mr. Berto’s friends, his past home school instructor, Mr. Berto’s educational history; a psychological assessment prepared by Dr. Keith LeFave (hereafter referred to as the “LeFave assessment”) and a CPIC inquiry.
88Mr. Berto it a youthful offender. He was 18 years old at the time of the offence. He is now 20.
89Mr. Berto has no criminal record. He is a first offender.
90Mr. Berto is currently single with no dependents.
91Mr. Berto is the only child of his parents. He has always enjoyed the benefit of their support and extended family and was never abused in any way. He was well provided for both emotionally and materially, but was reportedly not spoiled.
92Mr. Berto has a supportive family. All friends and family interviewed by the PSR author described Mr. Berto as polite, respectful and friendly with an amazing work ethic. Some of the PSR interviewees expressed that they did not feel that Mr. Berto would fare well if incarcerated or that it would benefit society.
93Mr. Berto left high school after the second semester due to learning and social difficulties he was having. He does, however, have a grade 12 diploma which he achieved after completing a homeschooling program.
94Mr. Berto was at the time and continues to be employed by his parents in a family business, attending to property maintenance on apartments and properties in their possession, such as minor plumbing, minor electrical, dry walling, flooring and painting work.
95In respect of his health, the PSR reports that Mr. Berto has been having trouble sleeping, is stressed, and that Mr. Berto was recently taken to the Sault Area Hospital by his mother after he reported overwhelming feelings of despair and depression. Mr. Berto is now on anti-depressants and seeing his family physician for monitoring.
96The PSR indicated that Mr. Berto presents with no historical or present substance abuse concerns.
97The PSR author expressed his view that Mr. Berto posed a very low risk to re-offend in the future. His recommendations included conditional sentence or sufficient period of intermittent incarceration if that was going to be a sanction, on the basis of this being Mr. Berto’s first offence, very low risk to re-offend and psychological needs going forward.
98There are no allegations of breach of any of the terms and conditions of his bail release, since his release.
99In respect of pre-trial custody, I have noted that Mr. Berto spent six days in custody after his arrest.
100I reviewed the LeFave assessment which was prepared based on four attendances that occurred during the summer of 2017.
101As a child, Mr. Berto suffered separation anxiety, and experienced a significant amount of anxiety when he started school. The LeFave assessment indicates that in grade 3 Mr. Berto was diagnosed with Anxiety Disorder, which for the time was specified as Overanxious Disorder of Childhood and at which time, it was speculated that Mr. Berto might try to avoid tasks that he perceived as too difficult and that angry reactions might surface when he was forced to face or remain in an anxiety-provoking situation. In grade 8, he was assessed as showing low average cognitive ability. Teacher responses on a standardized rating scale produced elevated scores on measures of rule breaking, angry/aggressive behaviour and anxious behaviour. At school it was reported that he could be stubborn, easily frustrated and prone to sudden changes in mood. He often appeared anxious and self-conscious. Mr. Berto’s anxiety followed Mr. Berto into his teenage years.
102Dr. LeFave indicated that the tests indicate that Mr. Berto has Social Anxiety Disorder, implying that he has a marked fear or anxiety about one or more social situations in which he is exposed to possible scrutiny by others. Dr. LeFave indicated that Mr. Berto at that time, presented also with significant depression likely associated with guilt and remorse. In that context, he stated that Mr. Berto presented with an Adjustment Disorder with Depressed Mood.
103In the LeFave assessment, Mr. Berto was reported as having intrusive thoughts about Paul VanderGriendt’s well-being and why the incident occurred, that he stated that he often breaks down and cries and has problems falling asleep at night.
104Dr. LeFave indicated that Mr. Berto was functioning in the very low range of cognitive ability but that emotional factors might have contributed to his decline in performance when comparing his grade 8 testing results to new test results. The IQ score was 69 (2nd percentile), in the extremely low range based on four composite or index scores. Each of the scores were in the “borderline” or very low range, with percentiles ranging from 5th to 3rd.
105Dr. LeFave in the context of expressing validity of his testing noted that although he did not assess Mr. Berto as deceitful with his answers (because he produced several clinical scale elevations), he expressed that Mr. Berto was likely to be rigid, ruminative, aspiring to be virtuous and/or lacking personal insight. The clinical scale elevations led Dr. LeFave to assess Mr. Berto as feeling unhappy or depressed, and that Mr. Berto was feeling inferior, lacking in self-confidence and uneasy in social situations, prone to obsessive worries, compulsive rituals and feelings of fear/anxiety.
106In this case, I was not persuaded on a balance of probabilities to give Mr. Berto’s cognitive assessment weight in terms of contextualizing what was going on in his head in respect of his moral blameworthiness at the time of the offence. First, at trial, Mr. Berto’s testimony and presentation was such that it appeared to me that he clearly understood that he had other choices available to him when he embarked on the driving path he embarked upon. He was angry and upset with the group. It was not a split-second decision to drive toward the group. He seemed to appreciate that driving towards the group could make them angry. On the evidence, in my view, it is not more probable that his lack of appreciation or decision, was as a result of his intelligence level as opposed to simply being a result of his anger and upset with the crowd. Secondly, Plein, in my view is distinguishable. Plein is not a dangerous driving case and in such cases, there is a presumption related to the licencing requirements for driving, that every driver has the required minimum standard of competence, assured by the licencing authority. Criminal fault can be based on the voluntary undertaking of the activity, the presumed capacity to properly do so, and the failure to meet the requisite standard of care: R. v. Beatty, 2008 SCC 5, para. 32; R. v. Brown, 2018 ONCA 814, paras. 6-7.
107In terms of Mr. Berto’s conduct being characterized as a “one-off” or a momentary error in judgment, based on the positive statements made about him by the interviewees outlined in the PSR, I have already set out the historical health, behaviour and potential judgment issues noted by the LeFave assessment and it appears that those issues have been in existence for some time. In the PSR, I also noted that Mr. Berto’s great-uncle, identified a tendency on the part of Mr. Berto to get frustrated when things do not progress as planned.
108The defence points to Mr. VanderGriendt’s Guillain Barre Syndrome, not to suggest that it is not a consequence of the accident, but to suggest that it was a rare unusual unique consequence. This may be true. However, in contemplating this and its weight, I am mindful that the elements of driving offences themselves call for the consideration of not just what happened, but what could have reasonably been expected to happen. It seems obvious to me that driving a large jacked-up truck towards a group of people in a parking lot at 2 a.m. who have just come out of a drinking establishment could lead to drastic results and foreseeable consequences as serious as death.
109As to the time factor/length of the driving in question in this case, Mr. Berto testified that his decision was not a split-second decision to travel his vehicle toward the group. It was his choice to do so and I have made a finding that he intentionally chose to drive toward the group. On this basis, the length of the driving is inconsequential.
110In respect of bail conditions, I gave this factor some weight but not the weight defence argued that it should attract for the following reasons.
111After being arrested, Mr. Berto was released March 17, 2016 on a recognizance of bail including non-communication terms with witnesses and the victim, a term not to attend Sand Bay Road, a weapons prohibition, an alcohol and intoxicating substances consumption prohibition, terms not to operate or have care of a motor vehicle or be in the driver’s seat; and finally a term to be in the presence of one of his sureties (his parents) at all times – house arrest. This recognizance was changed two and half months later, on June 3, 2016. The terms requiring Mr. Berto to be in the presence of one of his sureties at all times was changed to allow exceptions. Mr. Berto could be in his residence without either of his sureties; and he could be at work and travel to and from work between the hours of 6:00 a.m. and 9:00 p.m. without being in the presence of one of his sureties. Mr. Berto’s mother testified at the sentencing hearing that the term was changed because it was restricting/constricting for her and her husband, not Mr. Berto.
112Mr. Berto has been able to continue working uninterrupted since March 17, 2016. His employment was not interfered with on either recognizance.
113After the change was put into place, I did not receive actual evidence that Mr. Berto’s ability to move around and go out was severely constrained. Mr. Berto somehow was also able to meet and maintain a relationship with a girlfriend from three months after the occurrence to four months prior to the sentencing hearing. I did not receive evidence that any of his relationships were specifically disrupted or impacted by the bail conditions. He could be alone with friends and his girlfriend in his home. He was not limited on who he could have in home either by the recognizance or his parents. There were no limits on him leaving the home for purposes other than work for any other purpose provided he was accompanied by his surety. Unique to this case is the fact that Mr. Berto was not a social person and the presentation of the defence on this issue was directed specifically at the conditions being operative over what defence called “formative years of teenager/young adult socializing which they do a lot of as part of life”. The evidence was that prior to the accident, Mr. Berto was homeschooled from second semester of grade 9 onward and he did not have any social life with his anxiety issues. His mother testified that he “pretty much stayed home and worked”. His mother testified that he was alone quite often. That being said, in giving it some weight, I was mindful of Mrs. Berto’s evidence and the facts of the case that seemed to suggest that Mr. Berto had reconnected with some people not long before the accident and may have tried to be more social.
114In respect of the consent forfeiture order, forfeiture orders and terms of imprisonment or other aspects of a sentence are intended to be treated as separate and distinctive consequences: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, para. 41.
115While not proven to be a factor nor is it being suggested to be one whatsoever in this case, the Crown noted that Mr. Berto admitted at trial that he had drank two beer on the evening in question. He was under age and was consuming alcohol contrary to the conditions of his licence. I understood the point of the Crown to be one of emphasizing that Mr. Berto did not respect the law or conditions of his licence that evening.
116There were six victim impact statements and one community impact statement presented and filed. They included statements from the victim, the victim's mother, father, brother, sister, fiancée and a former colleague and friend. All of the statements described tragic consequences and how each has been affected.
117The course of Mr. VanderGriendt’s life has been profoundly changed. He will never reach or realize the future he envisioned for himself before the accident. The nature of his injuries are life-long and life-altering.
118The lives of Mr. VanderGriendt’s family members have been dramatically affected emotionally, and economically.
119The pain that the victim and family feel does not appear to have subsided any since the incident.
120Many of them expressed a desire that Mr. Berto get the help he needs; that he reflects upon his decisions and actions; and they expressed a wish that this never happens to anyone else.
121On behalf of the community it was expressed that the community lost a much needed excellent pilot and instructor, and the statement reflected concern for the grief and trauma caused to all of the others including those who witnessed Mr. Berto’s vehicle run over Mr. VanderGriendt and others affected by this. The college aviation program shut down its operations for several days to allow students and instructors to deal with their grief.
122Mr. Berto accepts responsibility for his actions. Mr. Berto is remorseful. Mr. Berto reported that he attends church now, believes in God and prays for Paul VanderGriendt. Mr. Berto advised the court that there were no words that he could express to Mr. VanderGriendt and his family to make things right. Every day he thinks of him and prays for what has been lost and what the whole family has suffered. He remarked that seeing Mr. VanderGriendt deliver his statement and viewing his strength was heartbreaking for him. Harder yet for Mr. Berto is Mr. VanderGriendt’s lost dream of flying. To Mr. VanderGriendt and his extended family, Mr. Berto stated that sorry is not enough and that one day he hopes to meet Mr. VanderGriendt so that he can say sorry in person. He ended by telling the court that he takes responsibility for his actions.
123The gravity of the offences in this case is serious and there are aggravating factors.
124I find Mr. Berto’s culpability in this case to be high. What Mr. Berto did was dangerous, reckless, irresponsible; and stupid, as he put it. The moral blameworthiness rests upon one person, Mr. Berto. He made a choice, a choice to intentionally back up, angle and drive his large jacked-up truck, in a parking lot, outside of a drinking establishment, at 2:00 a.m., towards a crowd of people with whom he was angry and upset with at the time, and aggressive with before even getting into his truck. He chose to drive in an angry and upset state, and engage in a stupid intimidation tactic before leaving the parking lot. These people he drove towards were by no means expecting or anticipating Mr. Berto to do this, as evident by the video and the testimony. He did not check who may have been in front of him when he chose to make an aggressive turn and accelerate out of the parking lot.
125The actual harm occasioned by the dangerous driving was significant. Mr. VanderGriendt was seriously injured. Mr. VanderGriendt, by all accounts, was an innocent bystander.
126This was a serious accident that will have lifelong impacts, not only for Mr. VanderGriendt, but all of the others as expressed in the impact statements.
127The consequences could have been much more serious in this case if the others in the crowd had not been so lucky to get out of the way in time.
128Mr. Berto then left the scene, continuing to drive in a very dangerous manner, first suspecting he had run over someone, then continuing on, after being informed that he had in fact actually done so. He continued on. He then concealed his vehicle and part of his explanation for that included to avoid detection and liability for what he had done. He turned himself in eleven hours later.
Conclusion
129Sentencing is not an easy task. The sentencing judge must scrutinize the principles, facts, cases, the factors, arguments and what is fit for the offences - and the specific offender - in the particular circumstances.
130I reject discharge as a fit sentence for either offence. The seriousness of the offences and need for deterrence and denunciation are inconsistent with discharge, and not in the public interest. The registration of a conviction in my view would not be disproportionate given the facts of this case. I also reject a fine alone or combined with probation, and/or the suspension of sentence as being appropriate in this case for the same reasons.
131I find that a period of incarceration is required in this case on both counts.
132I reviewed the many cases provided to me. I considered the broad ranges, the similarities, the dates of the cases, and the distinguishing features of each as presented by counsel, keeping in mind that each case is dependent on its own facts and the individual accused.
133If not for the mitigating factors in this case, I agree that the periods of incarceration proposed by the Crown were reasonable and within range.
134I am of the view that the sentence that I have chosen acknowledges the mitigating factors but also gives adequate weight to the principles of general deterrence and denunciation that are called for in a case like this, which I agree are and should be paramount considerations - even with a youthful first offender. The relevance and relative importance of deterrence and denunciation in this case is high, on the facts of this case.
135Accordingly, in my view, the appropriate period of incarceration for this case for the dangerous driving offence is 18 months, and 6 months for the offence of fail to remain at the scene of the accident.
136I reject a conditional sentence for count 2, recognizing the following: that I have imposed a sentence for this offence which is less than two years; that Mr. Berto’s character has been described as good in the PSR; that it is unlikely that he will be before the courts in the future; that he would not be a real risk of re-offending during the period I have sentenced him to thus being of no danger to the safety to the community.
137It is the more general factors, and in particular, deterrence and denunciation, that cause me to reject a conditional sentence for count 2. The culpability for this offence, in my view, as stated is serious. It is important to send a message to deter others, including young people; to make it known what the legal consequences are, should they choose to resort to this type of driving conduct, and then after that, fail to stop or return to the scene of the accident to meet their obligations to assist - when they have actual knowledge that someone was seriously hurt, and when they are engaging in the escape from the scene with a purpose that includes avoiding detection and liability for what they have done.
138The period of incarceration for count 2 will be consecutive to that of count 1, and I find it is warranted based on the facts of this case.
139With respect to the DNA data bank order in respect of count 2, the defence made no submissions on the Crown’s application for it. The offence of fail to stop at the scene of an accident is a secondary designated offence. Where the offender is convicted of a secondary designated offence, the burden is on the Crown to show that an order would be in the best interests of the administration of justice. I am prepared to make the order and find that it is in the best interests of the administration of justice based on the nature of the offences and the circumstances surrounding their commission.
140With respect to ordering a firearms prohibition pursuant to s. 109 of the Criminal Code in respect of count 1, it is mandatory that I do so.
141With respect to ordering a driving prohibition, the power to do so is discretionary and the duration is for a period of up to 10 years on count 1 and up to 3 years on count 2, pursuant to s. 259(2)(b) and (c) of the Criminal Code. I am of the view (and it was not strongly contested) that my discretion should be exercised, and an order made. The dispute between the two positions was the length of the prohibition. I am mindful that Mr. Berto has not driven since March 12, 2016. As such, for all of the reasons I expressed for determining the incarceration, and the foregoing fact, I am of the view that the term of the prohibition should be two years.
142In respect to forfeiture of the vehicle as offence related property, an order pursuant to s. 490(1) of the Criminal Code, was consented to and a draft order was filed for me to review and sign.
143Finally a victim fine surcharge in the amount of $400.00 is payable.
Sentence
144Convictions shall be registered for both offences.
145On count 1, Mr. Berto is sentenced to 18 months imprisonment, less credit for pre-trial custody in the amount of nine days for the six days he was in custody, for a total of 17 months and 21 days.
146On count 2, Mr. Berto is sentenced to six months imprisonment, consecutive to the term imposed on count 1. The cumulative effect of these two sentences is, of course, a reformatory sentence.
147Pursuant to section 109 of the Criminal Code of Canada, I order that Mr. Berto shall be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years from his release from imprisonment for these offences.
148In respect of count 2, fail to stop at a scene of an accident, which is a secondary designated offence, a DNA order shall issue pursuant to section 487.051 (3) (b) of the Criminal Code of Canada, to take or cause to be taken from Mr. Berto the number of samples of bodily substances that is reasonably required for forensic DNA analysis as set out by that form order.
149Mr. Berto shall pay a victim fine surcharge in the amount of $400.
150Based on consent and my review of the draft order provided, a forfeiture order in respect of the vehicle identified therein is hereby granted as signed by me on today’s date.
Rasaiah J.
Released: November 13, 2018
Schedule A
R. v. Nicholas Berto Court File No.: 7735/17
Endorsement
1Sentencing occurred today. A written decision was delivered orally.
2Convictions shall be registered for both offences.
3On count 1, Mr. Berto is sentenced to 18 months imprisonment, less credit for pre-trial custody in the amount of 9 days for the six days he was in custody, for a total of 17 months and 21 days.
4On count 2, Mr. Berto is sentenced to 6 months imprisonment, consecutive to the term imposed on count 1.
5Pursuant to section 109 of the Criminal Code of Canada I order that Mr. Berto shall be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years from his release from imprisonment for these offences and an order shall issue in respect of same.
6In respect of count 2, fail to stop at a scene of an accident, which is a secondary designated offence, a DNA Order shall issue pursuant to section 487.051 (3) (b) of the Criminal Code of Canada, to take or cause to be taken from Mr. Berto the number of samples of bodily substances that is reasonably required for forensic DNA analysis as set out by that form order.
7Mr. Berto shall pay a victim fine surcharge in the amount of $400 and an order shall issue in respect of same.
8Based on consent and my review of the draft order provided, a forfeiture order in respect of the vehicle identified therein is hereby granted as signed by me on today’s date.
9A driving prohibition shall issue for a period of 2 years as indicated.
November 13, 2018
Rasaiah J.
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NICHOLAS BERTO REASONS FOR sentence Rasaiah J.
Released: November 13, 2018