Court of Appeal for Ontario

Citation: R. v. Belanger, 2009 ONCA 867

Date: 2009-12-08

Docket: C50295

Before: Laskin, Sharpe and Gillese JJ.A.

Between:

Her Majesty the Queen Appellant

And

Robert Belanger Respondent

Counsel: Elise Nakelsky, for the appellant Robert Belanger, acting in person

Heard: December 2, 2009

On appeal from the sentence imposed by Justice Richard D. Schneider of the Ontario Court of Justice on March 10, 2009

Reasons for Decision

By the court:

[1] This is a crown appeal against sentence. The respondent, Robert Belanger, pleaded guilty to dangerous driving causing bodily harm. On March 10, 2009 he was given a 60-day intermittent sentence, two years probation and a 3-year driving prohibition. The Crown contends that the sentence is demonstrably unfit.

[2] In her factum, Ms. Nakelsky has fairly and thoroughly set out the relevant facts. Mr. Belanger was driving on Highway 401 near Port Union. He had consumed a considerable amount of alcohol, though the evidence fell short of establishing that he was over the legal limit. The victim, Kimberly Maiolo, and her husband had parked their van on the "bull nose" of the highway to change a flat tire. Mr. Belanger was speeding when he cut across the main part of the highway to the collector lanes. As he did so, he crashed into Ms. Maiolo while she stood beside her van. As a result of the collision, Ms. Maiolo's leg was completely severed from her body. Although the police later recovered her leg, it could not be reattached.

[3] The collision has had a devastating and permanent effect on Ms. Maiolo. She was 41 years old at the time. She sustained acute injuries, including the leg amputation, fractures to her pelvis, back and right wrist, and damage to the ligaments in her left knee. She now has a prosthetic leg, pain in her back, and symptoms of arthritis. Her physical injuries have been exacerbated by the psychological consequences of the collision she now endures. She has feelings of depression, fury and hate. In her words "my life is a mess. Some days I can't stand all the physical pain and agony in my heart".

[4] The sentencing judge was of the view that Mr. Belanger would likely have been a candidate for a conditional sentence. However, he recognized that the recent amendments to s. 742.1 of the Criminal Code precluded a conditional sentence for a serious personal injury offence such as this one where the Crown had proceeded by way of indictment. He, therefore, imposed a 60-day intermittent term of incarceration, to be served on weekends.

[5] We agree with the Crown that the sentence imposed by the sentencing judge was demonstrably unfit. Although the sentencing judge recognized the importance of denunciation and general deterrence, the sentence he imposed did not adequately reflect these principles, or adequately recognize the profound harm to Ms. Maiolo caused by Mr. Belanger's dangerous driving. In our view, a non-intermittent custodial sentence was warranted.

[6] However, nine months have now passed since Mr. Belanger was sentenced. He has served all 60 days of his intermittent sentence. We do not consider it in the public interest to now re-incarcerate him. He is in his late 60s; he had no previous criminal record; he is the sole support of his wife, who is 11 years older than he is, and their daughter; both he and his wife have serious health problems. Nothing is to be gained by now putting Mr. Belanger in jail.

[7] Where we do think it is appropriate to intervene is on the length of the driving prohibition. The trial Crown asked for a prohibition of three to five years. The sentencing judge imposed a three year prohibition. We have decided to increase the driving prohibition to five years. Although Mr. Belanger had no criminal record, he had 10 previous speeding convictions. In the light of this record and the offence before the court, he should not be driving for a long time. In a case such as this one, a lengthy driving prohibition, not incarceration, is a more meaningful way to promote general deterrence and denunciation.

[8] Accordingly, leave to appeal sentence is granted and the appeal is allowed in part by increasing the driving prohibition from three years to five years.

RELEASED: December 8, 2009

"John Laskin J.A." "JL" "Robert J. Sharpe J.A." "E.E. Gillese J.A."