DATE: 20030121
DOCKET: C37285
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SIMMONS AND GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Robert Kelly for the respondent
Respondent
- and -
JONATHON KEEVIL
Christopher Hicks for the appellant
Applicant/Appellant
Heard: December 10, 2002
On appeal from the sentence imposed by Justice Karen E. Johnston of the Ontario Court of Justice on November 6, 2000.
BY THE COURT:
[1] The appellant, Jonathon Keevil, pleaded guilty to three sets of criminal charges. One set of charges related to six break and enters of residential properties between October 5 and December 25, 1998, and on December 10, 1999. The second set of charges involved possession of a stolen vehicle in June 1999. The third, and most serious, set of charges related to an appalling police chase incident which unfolded on December 17, 1999 in the Township of Bexley. The convictions which flowed from this incident were aggravated assault endangering life, dangerous driving, possession of property obtained by the commission of a crime with a value under $5000 (x3), possession of a controlled substance (Controlled Drugs and Substance Act) and failure to stop (Highway Traffic Act).
[2] On November 6, 2000, Johnston J. imposed a total sentence of 7 years and 9 months after giving credit on a 2:1 basis for the 326 days the appellant had served in pre‑trial custody. The key components of the sentence were: aggravated assault endangering life – 6 years (7 years less 183 days time served on a 2:1 basis); 1998 break and enter offences – 9 months; 1999 break and enter offences – 12 months (15 months less 45 days time served on a 2:1 basis; and 1999 possession of a stolen vehicle – 6 months time served (90 days time served on a 2:1 basis).
[3] The appellant initially sought to appeal from conviction, but abandoned that appeal and it is disposed of accordingly. The appellant seeks leave to appeal his sentence and, if leave is granted, he advances three arguments on the appeal: (1) the trial judge erred by hearing and relying on certain viva voce evidence tendered by the Crown at the sentencing hearing; (2) the seven year sentence for aggravated assault endangering life was outside the range for similar offences; and (3) the trial judge did not properly take into account the principle of totality.
(1) Evidence at sentencing hearing
[4] At the sentencing hearing, the Crown called three witnesses who had no direct involvement in the criminal incidents.
[5] Janet Perfect was a Coordinator of Statistical Services in the Ministry of the Solicitor General who had served on a Ministry task force which studied the problem of police chase incidents. She testified about the extent of the problem (1034 reported pursuits in Ontario in 1999) and the profile of participants in the chases (“96 per cent of our pursuit drivers are male under the age of 26”).
[6] Kelly Rae, a Claims Analyst in the Workplace Support Unit of the Ontario Provincial Police, testified about the number of injuries to OPP officers caused by non‑accidental incidents with accused persons (197 reported incidents in 1999).
[7] Constable Peter Dugeay of the York Regional Police testified about the appellant’s prior conviction for dangerous driving relating to an incident in 1993 in which the appellant drove his car directly at the officer, forcing him to dive to the roadway to avoid being struck.
[8] The testimony of these three witnesses at the sentencing hearing was extremely brief and experienced defence counsel made no objection to it. However, the appellant now contends that the testimony should not have been admitted because it was not relevant to the principles of sentencing.
[9] We disagree. Ms. Perfect’s testimony about the nature and extent of police chase incidents was relevant on the issue of general deterrence. Ms. Rae’s testimony about injuries to police officers was directed at the same principle. Constable Dugeay’s synopsis of the appellant’s previous conviction for dangerous driving, which also related to an incident in which the appellant drove a vehicle directly at a police officer, was relevant on the issue of specific deterrence.
(2) Aggravated assault endangering life
[10] The appellant contends that the seven year sentence for aggravated assault endangering life was excessive. Specifically, the appellant contends that the trial judge erred by relying too heavily on R. v. Singh, [1995] A.J. No. 800 (Q.B.), rev’d on other grounds (1995), 1995 ABCA 453, 174 A.R. 350 (C.A.), a case in which a seven year sentence was imposed for criminal negligence causing bodily harm. In Singh, the accused drove at high speeds with a police officer hanging onto the car, partly inside and partly outside. Singh tried to push the officer out the window, the car reached a speed approaching 140 kilometers per hour in Edmonton, and Singh ignored the officer’s screams and yelled at her “I’m going to take you straight to hell, I’m going to kill you.”
[11] It is true that some of the factors in Singh are worse than those in the present appeal. However, in several respects the appellant’s behaviour in the present case was also remarkably vicious and dangerous. The incident continued for approximately 20 minutes. On three separate occasions, the appellant drove directly at the police and their vehicle. Twice he turned his car around to make another charge at the police vehicle. On at least two other occasions, the appellant stopped his vehicle so suddenly that the pursuing police vehicle rear‑ended him. In the initial moments of the incident, a police officer ended up on the hood of the appellant’s car. In the final moments, the appellant was successful in using his car as a weapon; he drove his car directly into the police cruiser.
[12] In addition, the appellant’s conduct caused serious injury to one of the police officers. As expressed by the trial judge:
P.C. Size was transported to the hospital. P.C. Size suffered injuries to the muscles of his lower back, his neck, bruising on his right forearms and soreness of his left elbow. He has suffered a permanent disability, and now suffers from post traumatic stress disorder. It is unlikely that he will ever be able to return to his position as a field officer, and it appears he will have to move elsewhere in Ontario to continue employment in another capacity with the O. P. P.
[13] Finally, and crucially, we note that the appellant engaged in similar conduct on a previous occasion. The trial judge stated that “[t]here must be a strong message to the community that police officers, who are working to protect society, must themselves be protected in the course of their work.” We agree.
[14] The trial judge carefully reviewed the principles of sentencing set out in s. 718 of the Criminal Code. We cannot say that the seven year sentence she imposed for the offence of aggravated assault endangering life was excessive.
(3) Totality
[15] The appellant contends that the trial judge failed to properly consider the totality principle. He submits that a total sentence of 7 years and 9 months (in effect 9½ years once credit, on a 2:1 basis, is given for pre‑trial custody) is simply too high for a 23 year old offender.
[16] We disagree. Near the end of her comprehensive reasons for sentence, the trial judge explicitly considered this issue:
I have considered the submission with respect to defence counsel that the sentence should not be one that is crushing, and I have struggled, I can tell you, with that concept. I have looked at every factor that I could look at to try and determine if there was any way the needs of society could be met and impose a sentence of less than this amount, because it is a long sentence. In my view, the protection of society cannot be met with any other sentence.
[17] Although we acknowledge that the sentence is “a long sentence” for a 23 year old man, we see no basis for interfering with the trial judge’s conclusion on the totality issue. The seven year sentence for aggravated assault endangering life was not excessive. The additional sentences, mostly for break and enters, were certainly not excessive in light of the appellant’s long criminal record and the large number of break and enter convictions. Taken together, we cannot say that the global sentence violated the totality principle.
Disposition
[18] Leave to appeal sentence is granted. The appeal from sentence is dismissed.
RELEASED: January 21, 2003 (“JCM”)
“J. C. MacPherson J.A.”
“Janet M. Simmons J.A.”
“E. E. Gillese J.A.”