Court of Appeal for Ontario

Citation: R. v. Rawn, 2012 ONCA 487 Date: 2012-07-09 Docket: C53457

Before: Weiler, Watt and Epstein JJ.A.

Between:

Her Majesty the Queen (Appellant)

and

Holly Rawn (Respondent)

Counsel: John McInnes, for the appellant Franklin Lyons, for the respondent

Heard: May 4, 2012

On appeal from the sentence imposed on February 18, 2011 by Justice Kim A. Carpenter-Gunn of the Superior Court of Justice.

Epstein J.A.:

OVERVIEW

[1] On May 10, 2008, the respondent, Holly Rawn, was involved in a serious motor vehicle collision that injured seven people.

[2] Ms. Rawn was charged with seven counts of dangerous driving causing bodily harm. Following an eight-day trial, a jury found her guilty of all counts. The trial judge suspended the passing of sentence and ordered Ms. Rawn to comply with the terms of a two-year period of probation with no terms other than those mandated under s. 732.1(2) of the Criminal Code, R.S.C, 1985, c. C-46. The trial judge also imposed a two-year driving prohibition, concurrent with the one year mandatory licence suspension under the Highway Traffic Act, R.S.O. 1990, c. H.8.

[3] The Crown appeals this sentence on the basis that the trial judge erred in principle when sentencing Ms. Rawn and that the sentence imposed is manifestly unfit.

[4] For the reasons that follow, I would grant leave to appeal and allow the appeal. I would set aside the sentence and, in its place, substitute a nine-month custodial sentence. In addition, I would set aside the two-year driving prohibition and impose one of five years to be served concurrently with the mandatory licence suspension under the Highway Traffic Act.

THE FACTS

[5] During the evening of May 9, 2008, Ms. Rawn socialized for a few hours at a bar in downtown Hamilton with her friend, Stephanie Snyder. Both consumed some alcohol. Around 2:00 a.m. they left in Ms. Rawn’s SUV. Ms. Rawn drove. Ms. Snyder occupied the front passenger seat. The two ended up on a residential street with a posted speed limit of 50 km per hour, where they encountered Marcello Clazzer, accompanied by five friends. Mr. Clazzer was driving a Nissan.

[6] Ms. Snyder started teasing and flirting with the men in the other car. Mr. Clazzer, responding to Ms. Snyder’s provocative behaviour, accelerated. Ms. Rawn followed suit. Over the next 1.3 km, the two vehicles drove in tandem down a residential street reaching speeds of at least 137 km per hour. Eventually, the cars collided, causing the Clazzer vehicle to hit the curb, bounce off and again hit Ms. Rawn’s car. Ms. Rawn’s car flipped onto its roof and Mr. Clazzer’s car crossed the median, struck trees, and then a fence. Both vehicles were destroyed in the accident.

[7] Expert evidence was provided by Jason Bayley, a professional engineer who was qualified as an accident reconstruction expert. His unchallenged evidence, based on his examination of the scene and of data saved in the computerized air bag system in Ms. Rawn’s car, was that the two vehicles were travelling at the same speed and that the impact point of the collision was on the side of each car.

[8] As a result of the accident, Ms. Snyder suffered serious injuries. She was resuscitated in hospital after her heart stopped. She remained in hospital for two months and in bed for another year. She continues to suffer permanent damage to her right arm. The bodily harm suffered by Ms. Rawn, Mr. Clazzer and the five passengers in his car, included lacerations, concussions, bruising, and broken bones.

[9] Like Ms. Rawn, Mr. Clazzer was charged with seven counts of dangerous driving causing bodily harm. Mr. Clazzer pleaded guilty to one count. The sentencing judge, Justice Speyer, accepted counsel’s joint submission and suspended the passing of sentence, ordered Mr. Clazzer to comply with the terms of an 18-month period of probation that included three months of house arrest and imposed a one-year driving prohibition. The remaining counts were withdrawn.

THE SENTENCING

[10] In this case, the Crown sought a nine-month period of incarceration followed by 24 months’ probation and a three to five-year driving prohibition. The defence argued that the trial judge should suspend the passing of sentence and order a period of probation of 18 to 24 months and a driving prohibition in the range of 18 to 24 months.

[11] At the outset of her reasons, the trial judge reviewed the disposition of Mr. Clazzer’s charges, as set out above. She then focused her attention on the relative culpability of the two drivers. The trial judge made note of the fact that Speyer J., in her reasons for sentence, had expressed the view that Mr. Clazzer was less culpable than Ms. Rawn. The trial judge did not see it that way. She found that she could not assign greater culpability to either driver; both drivers drove at excessive speeds on a residential street, putting members of the public at great risk. She did, however, comment on the fact that she was not aware of the facts that were read into the record in support of the Clazzer conviction.

[12] From there the reasons contain a description of some of Ms. Rawn’s personal characteristics. She was 40 years old at the time of the collision and had no previous criminal record. She had a difficult childhood and at age 30 attained her high school equivalency. She went on to complete a five-month program to be a personal support worker. At the time of the trial, she was being treated for her injuries and for depression.

[13] Next, the trial judge considered and rejected the Crown’s argument that Ms. Rawn had been racing at the time of the collision.

[14] The issue of parity was then addressed – the impact of the Clazzer sentence on the determination of a fit sentence for Ms. Rawn. The trial judge noted that each driver had been charged with seven counts under the same section of the Code. Mr. Clazzer was convicted of one count, was in his 20s and, like Ms. Rawn, did not have a criminal record. The trial judge also noted that Mr. Clazzer pleaded guilty and, contrary to Ms. Rawn, demonstrated remorse.

[15] Finally, after reviewing the authorities provided by counsel and identifying general deterrence as the controlling principal, the trial judge imposed the sentence as set out above.

ISSUES

[16] The Crown raises four issues:

1. Did the trial judge err in her consideration of the issue of parity?

2. Did the trial judge err in her identification of the relevant principles of sentencing?

3. Did the trial judge err in finding that Ms. Rawn was not racing at the time of the collision?

4. Was the sentence, in any event, unfit having regard to the circumstances of the offence and of the offender?

ANALYSIS

A. The Sentence Imposed

1. Parity - Did the trial judge err in law by misapplying the parity principle?

[17] The principle of parity of sentences is set out in s. 718.2(b) of the Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[18] The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

[19] In my view, the trial judge erred in her application of the parity principle in two respects. First, the reasons disclose that she failed to appreciate important differences between the two offenders and the two offences. Second, the trial judge appears to have allowed the parity principle to divert her attention from other relevant sentencing factors.

[20] There were many differences between the circumstances of the two offenders.

[21] Mr. Clazzer was a youthful first offender who took responsibility and demonstrated remorse in the immediate aftermath of the accident. Ms. Rawn, while also a first offender, at no time accepted responsibility. In fact, in her response to the trial judge’s invitation to address the court in advance of being sentenced, she maintained that “the other kid in the car was more guilty than I was”.

[22] Mr. Clazzer, early in the proceedings, pleaded guilty to one offence and six charges were withdrawn. His sentence was the product of a joint submission. Ms. Rawn was convicted of seven offences after an eight-day jury trial. Ms. Rawn’s sentence was hotly contested.

[23] Significantly, while the offences for which both Mr. Clazzer and Ms. Rawn were convicted were the same, arising out of the same accident, Mr. Clazzer was sentenced in circumstances where the trial judge identified him as being the least culpable of the two drivers. In contrast, Ms. Rawn was sentenced on the basis of the trial judge’s finding that she and Mr. Clazzer were equally culpable.

[24] It was perhaps prescient that Speyer J., in her reasons for sentence in the Clazzer matter, made specific note of the effect this should have on a consideration of parity:

[Your sentence] reflects the lesser role that you played in this situation. In my view Ms. Rawn has the greater culpability. She will be dealt with by another court, but I do want the record to reflect that in terms of looking at sentences down the road, that in terms of parity of sentences, it should be kept in mind that it is this court’s view that Ms. Rawn’s conduct was the more egregious of the two of you, although you both behaved terribly. [Emphasis added.]

[25] The above comparison demonstrates that there were factors relevant to the determination of the Clazzer sentence that supported leniency. These factors did not apply to Ms. Rawn.

[26] Speyer J. described Mr. Clazzer’s sentence as “on the very, very low end of a sentence that [she] could impose in this case”. The law is clear that the parity principle does not operate so as to give Ms. Rawn the benefit of the factors that justified Mr. Clazzer’s being treated with leniency. It also does not operate so as to give her the benefit of Mr. Clazzer’s good fortune in having received a “very, very low” sentence: R. v. Douglas (1996), 1996 CanLII 666 (ON CA), 91 O.A.C. 224, at para. 9, R. v. Flowers, 2010 ONCA 129, 258 O.A.C. 97.

[27] It follows that Mr. Clazzer’s sentence was lenient and Ms. Rawn was not entitled to similar consideration. Ms. Rawn’s sentence should have reflected the fact that she was not entitled to the leniency apparent in the Clazzer sentence. What is troubling is that, notwithstanding that the trial judge appears to have been aware of at least some of the factors that would support a more severe sentence for Ms. Rawn, she imposed a sentence that was more lenient.

[28] The second concern I have about the trial judge’s application of the parity principle comes from the extent to which it appears to have influenced her determination of Ms. Rawn’s sentence.

[29] It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

[30] In R. v. Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby’s statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing “does not require equal sentences, but only understandable sentences when examined together.” [Citations omitted.]

[31] In my view, the record and the similarity between the two sentences indicate that the parity principle unduly influenced the trial judge’s determination of Ms. Rawn’s sentence; in fact it would appear that she allowed the principle to dictate the result rather than to inform it.

[32] The trial judge’s pre-occupation with the parity principle is apparent from the outset of the Crown’s submissions as to sentence and dominated the ensuing exchanges with counsel. In her relatively brief reasons for sentence, the trial judge kept returning to the issue. Finally, the parity principle featured prominently in the summary of her rationale for imposing the sentence she did.

2. Did the sentencing judge err in law by failing to recognize that the primacy of general deterrence and denunciation requires a component that is punitive?

[33] General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one: see R. v. Nusrat, 2009 ONCA 31, 244 O.A.C. 241. Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-5.

[34] The trial judge correctly acknowledged the importance of general deterrence, describing the principle as being “at the forefront” of her determination of a fit sentence. However, in my view, she erred in principle in not applying the principle. In my view, the sentence she imposed contained little, if any, element of punishment.

[35] The principal component of Ms. Rawn’s sentence was a period of probation. However, probation is regarded as a rehabilitative sentencing tool: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 31-33. It is not considered punitive in nature. This is particularly the case here as the trial judge did not impose any optional conditions under s. 732.1(3) of the Code.

[36] The only potentially punitive aspect of Ms. Rawn’s sentence is the driving prohibition, the effect of which was to deprive her of her ability to drive for one year beyond the automatic 12-month suspension pursuant to the provisions of the Highway Traffic Act. However, while there can be no doubt that a driving prohibition is inconvenient for Ms. Rawn, particularly given that she is required to drive for work, this inconvenience would, to most, be regarded as a conspicuously mild response to Ms. Rawn’s conduct, the harm she caused and the danger to which she exposed others.

[37] In summary, I am of the view that the trial judge erred in misapplying the parity principle and further erred by imposing a sentence that did not adequately reflect the principles of general deterrence and denunciation. I therefore agree with the Crown that these errors led the trial judge to arrive at a sentence that was demonstrably unfit.

[38] On the basis of these two errors, I would grant leave to appeal sentence and allow the Crown’s appeal. In the light of this conclusion, it is not necessary to consider the Crown’s submissions relating to the trial judge’s refusal to make a finding that Ms. Rawn was street racing at the time of the collision.

B. The Appropriate Sentence

[39] It is clear that this court is entitled to review the record and impose what it regards to be an appropriate sentence. See, for example, R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 719.

[40] The gravity of the offence is, of course, a fundamental component of the sentence to be imposed: s. 718.1 of the Code.

[41] The 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.

[42] Here, Ms. Rawn’s driving involved speeds of nearly three times the speed limit in a residential area. Her conduct caused grave personal injuries to seven people, particularly to Ms. Snyder, and endangered the lives of many others in the community. The gravity of the consequences of Ms. Rawn’s driving - serious personal injury - must be given considerable weight in determining a fit sentence: Nusrat, at paras. 65-67.

[43] 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.

[44] Then, in 2007, s. 742.1 of the 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.

CONCLUSION AND DISPOSITION

[45] It is worth repeating - dangerous driving causing bodily harm is a serious offence. An appropriate sentence 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.

[46] Having regard to the Crown's position, the sentence I would impose is as follows.

[47] First, I agree with the Crown that a period of incarceration is called for in order to meet the requirements of general deterrence and denunciation. I would therefore impose a sentence of imprisonment for 9 months.

[48] Second, in my view, a fit sentence in this case must include an extended period of driving prohibition. I emphasize this aspect of the sentence as driving is at the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created. A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives. The Alberta Court of Appeal expressed this view as follows in R. v. Field, 2011 ABCA 48, 499 A.R. 178: “[d]riving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion” (at para. 23).

[49] It must be made clear that driving a motor vehicle is a privilege, not a right. With that privilege comes responsibility. This responsibility entails respecting the laws that govern driving so that the public can reasonably expect that when using our road system their lives and security will not be threatened by unexpected reckless conduct by impulsive drivers such as Ms. Rawn: Field, at para. 22.

[50] This reality must be explained, in a clear and convincing fashion to Ms. Rawn and others like her. To accomplish this goal, the court’s response to conduct such as this, where drivers deliberately choose to use the roads to satisfy their own thrill-seeking interests, must include the loss, for an extended period of time, of the privilege of driving.

[51] I would therefore vary the driving prohibition made under the Code to one of five years concurrent with the mandatory licence suspension under the Highway Traffic Act.

[52] Third, I would set aside the probation order. I see no reason for it.

[53] In the result, leave to appeal is granted, the appeal is allowed and the sentence imposed, varied in accordance with these reasons. If necessary, a warrant may issue for Ms. Rawn’s apprehension.

Released:

“JUL -9 2012” “G.J. Epstein J.A.”

“KMW” “I agree K.M. Weiler J.A.”

“I agree David Watt J.A.”