Court of Appeal for Ontario

Citation: R. v. Chiasson, 2008 ONCA 90 Date: 2008-02-12 Docket: C46011

Between: Her Majesty the Queen (Respondent) and Justin Chiasson (Applicant/Appellant)

Before: Feldman, Lang and Juriansz JJ.A.

Counsel: Glenn Elliott for the appellant Maura Jetté for the respondent

Heard: January 22, 2008

On appeal from the judgment of Justice D.M. Stone of the Superior Court of Justice dated July 31, 2006.

Endorsement

[1] The appellant appeals his conviction for dangerous driving and his eighteen- month sentence.

[2] The appellant, who was driving his mother’s car, was signalled by a police car to stop. Although the appellant saw the signal, he continued driving for some distance before finally stopping in a residential driveway. The police officer approached the appellant’s car. He held the appellant’s shoulders through the open car window and told him that he was under arrest. The appellant put his car into gear and applied the accelerator, an act that knocked the police officer to the ground. The appellant’s car ran over the police officer’s leg, causing ligament injuries that fortunately were not permanent. The appellant parked the car a short distance away and fled into a marshy area. He was apprehended with difficulty. In the course of his apprehension, the appellant initially failed to respond to an order to put his hands in the air. He also resisted arrest and attempted to grab the gun of one of the arresting officers from its holster.

[3] The appellant was convicted of fail to stop, dangerous driving causing bodily harm, escape custody, flight from police officer, attempt to disarm officer and resist arrest. He was sentenced to concurrent and consecutive sentences totalling eighteen months and three years of probation. The trial judge also imposed a five-year driving prohibition and a three-year weapons prohibition.

[4] The appeal from the conviction for dangerous driving was concerned with the appellant’s intention in putting his car in gear and pressing the accelerator when he knew the police officer’s arm was in the car. The appellant argues that the trial judge erred in finding this conduct was other than a panicked reflex reaction to his apprehension. In concluding that the appellant’s conduct was intentional, the trial judge considered the appellant’s conduct in the context that the appellant acknowledged his initial failure to stop for the officer, he knew when he did stop that the officer was approaching his car to speak with him, he knew the officer’s arm was in the car and he knew that he was under arrest. In these circumstances, the appellant’s response in accelerating the car could not be said to be either spontaneous or reflexive. Rather, it was a considered response taken to avoid arrest. We see no basis on which to interfere with the trial judge’s findings. The appeal from conviction is dismissed.

[5] The appellant also appeals his combined sentence of eighteen months imprisonment for these offences.

[6] The appellant argues that, although serious, these offences were at the lower end of the spectrum for this type of offence because the appellant was driving at a low rate of speed when first signalled to stop by the officer and thereafter and the appellant did stop, albeit after a delay. The appellant also argues that his subsequent conduct was effectively a continuation of his effort to avoid the police, although admittedly exacerbated by his conduct in the marshy field.

[7] In our view, these offences were extremely serious. They involved putting more than one police officer at risk. The trial judge made no error in considering the vulnerability of police officers placed in a potentially dangerous situation and the importance of general deterrence. Accordingly, in our view, it was within the discretion of the trial judge to impose significant sentences for these offences. Moreover, in our view the total sentence of 18 months, viewed in isolation, is not outside the range for offences of this nature.

[8] Nevertheless, we would interfere with the sentence for three reasons.

[9] First, in our view, the trial judge focussed excessively on the principles of general deterrence and denunciation and failed to give adequate weight to the principle that the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation. In this case the appellant’s individual circumstances presented a combination of both usual and unusual factors. The appellant’s prospects for rehabilitation were very positive. The trial judge remarked that specific deterrence was not an issue for this offender, for whom this conduct was completely out of character. During his childhood, the appellant experienced significant and prolonged abuse from a step-father. This abuse left him with a stutter so significant that his ability to communicate was impaired to the extent that, apart from family members, he often resorted to written communication or required a person to interpret for him. The appellant’s communication problems would substantially increase his difficulties in serving a sentence in a prison setting. The pre-sentence report was extremely positive. It addressed the appellant’s disabilities and found they explained to some extent his aberrant behaviour on the night in question. Finally, this young man acts virtually as a parent to his disabled mother who is dependent upon him for her day to day needs including her meal preparation.

[10] Second, the trial judge did not provide sufficient reason for rejecting the imposition of a conditional sentence on at least some of the convictions. He alluded to this possibility in regard to the “flight from police” charge, but simply observed it was “part of a package” that “should be weighed in with the others”.

[11] Third, it is not in the interests of justice that the appellant be reincarcerated at this time. The appellant served just less than three months in prison before being released on a consent bail. While on bail, he has seen a psychiatrist and speech therapist, with positive results. He has completed a program at Sanford Fleming Academy, and is now employed on a full-time basis. All these steps reinforce the positive prospects for the appellant’s rehabilitation, which would be placed at risk if he were reincarcerated.

[12] These considerations lead us to allow the appeal and substitute a sentence of three months imprisonment for flight from police, followed by a conditional sentence of twelve months for the remaining offences, broken down as follows: three months concurrent for fail to stop; three months concurrent for escape custody; six months consecutive for dangerous driving; six months consecutive for attempt to disarm police and four months concurrent for resist arrest.

[13] We note that the trial judge failed to take into account the appellant’s aboriginal status in his reasons for sentence. The presentence report stated that the appellant “had recently had contact with his birth father who advised he is to be getting his full Native status as a Micmac”. The failure to consider the appellant’s aboriginal status and to give effect to s. 718.2(e) of the Criminal Code is an error in principle. However we say no more about it as this error was not raised as a ground of appeal, counsel neither requested nor suggested a Gladue report be obtained, and we impose a conditional sentence in any event.

[14] In addition to the usual terms for a conditional sentence, the appellant will abstain from alcohol and drugs (apart from over-the-counter and prescription medication). He will continue treatment for his speech impediment and any other treatment or counselling as directed by his supervisor. For the first nine months of the conditional portion of his sentence, he will remain at his residence at all times, except in the case of attending school or employment, appointments at court or with his physician or legal counsel, hospitalization, emergencies, grocery shopping on Saturdays between the hours of 2 p.m. and 4 p.m.; and as permitted in writing by his supervisor.

[15] Subject to the same exceptions, the appellant will remain in his residence between the hours of 7:00 p.m. to 6:00 a.m. for the remaining three months of his conditional sentence.

[16] For the purposes of the conditional sentence, residence includes facilities within the appellant’s apartment building.

[17] We would not interfere with the terms of probation or the driving and weapons prohibitions imposed by the trial judge.

[18] In the result, the conviction appeal is dismissed, leave to appeal sentence is granted and the sentence is varied so that the twelve-month balance of the appellant’s sentence will be a conditional sentence on the terms set out in these reasons.

“K. Feldman J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”