Court of Appeal for Ontario

Date: 2018-03-06 Docket: C63740

Judges: Strathy C.J.O., Simmons and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Hunter Currie Appellant

Counsel

Mark Halfyard, for the appellant Dena Bonnet, for the respondent

Heard: February 28, 2018

On appeal from: the sentence imposed on April 12, 2017 by Justice Alexander D. Kurke of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant pleaded guilty to two counts of dangerous driving causing bodily harm. He was sentenced to concurrent sentences of 18 months' imprisonment, plus two years' probation and was prohibited from driving for four years. He seeks leave to appeal sentence.

[2] The appellant fell asleep at the wheel of his car around 4 o'clock in the afternoon on November 22, 2014, on a busy highway in the Sudbury area. He was travelling 80 kilometers per hour in a 60 kilometer zone. He crossed the centre line and ran into the victims' car. The victims, a mother and a daughter, suffered grievous injuries.

[3] The appellant attempted to dispose of a bag of marijuana after the accident. Drug paraphernalia was found in his car. Police observed a smell of alcohol on his breath.

[4] A "read back" by a toxicologist estimated that the appellant's blood/alcohol content at the time of the accident was between 40 and 90 milligrams in 100 millilitres of blood. A drug recognition evaluation performed at 8:30 p.m. revealed that the appellant was under the influence of cannabis at that time. Urine testing revealed the presence of marijuana, cocaine and fentanyl.

[5] Facts admitted on the guilty plea included that:

• the presence of cocaine in the appellant's system was suggestive of a recent large dose or a binge dose over a period of days; and
• while cocaine initially stimulates the body when consumed, it can cause a "crash phase" as the effects wear off, causing sleepiness, among other things.

[6] The appellant was a nineteen year old novice driver at the time of the accident. He held a G2 licence and was prohibited from driving with alcohol in his body.

[7] The appellant submits that the sentence of 18 months was demonstrably unfit and a marked departure from the range in cases such as this. He asserts that the sentencing judge made four errors that contributed to an unfit sentence.

[8] First, he submits that the sentencing judge erred in finding the fact that "the cocktail of drugs [in the appellant's system], combined with the alcohol, contributed to his inability to stay awake and directly contributed to the dangerous driving [emphasis added]." He submits that this error caused the sentencing judge to impose a sentence that was outside the range for cases of dangerous driving in the absence of impairment.

[9] We do not accept this submission. As a matter of common sense, it is self-evident that the combination of drugs and alcohol consumed by the appellant contributed, at the very least, to the appellant falling asleep while driving in the middle of the afternoon. This is entirely consistent with the admitted connection between cocaine use and sleepiness and the admission that the appellant's urine levels indicated either a large dose or a binge dose over several days.

[10] Second, the appellant asserts that the sentencing judge erred in relying on the presence of drug paraphernalia in the appellant's car as an aggravating factor, as it reflected nothing more than bad character. We disagree. The sentencing judge was entitled to refer to this factor as supporting the evidence that the appellant had been consuming drugs and as evidence of his irresponsibility.

[11] Third, the appellant argues that the sentencing judge erred in imposing a sentence on a youthful first offender in order to send a message of deterrence to the community. We do not accept this.

[12] This was a serious accident that will have devastating lifelong physical and psychological impacts on its victims. The appellant's counsel on sentencing acknowledged that specific and general deterrence would play a role in the sentence. This offence is frequently committed by first-time offenders and young persons, like the appellant, of otherwise good character. Particularly because of this factor, it is essential that courts send 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.

[13] It bears repeating that as a G2 driver, the appellant was not permitted to have any alcohol in his system.

[14] Finally, the appellant points to other cases in which lower sentences have been imposed and submits that the sentence was unfit for this offence and for this offender.

[15] We disagree. The appellant acknowledges that the range in cases of this kind extends up to two years less a day. See R. v. Rawn, 2012 ONCA 487, at paras. 43-44. Here, the trial judge considered the relevant authorities and sentencing principles, the victim impact statements, a positive pre-sentence report and many mitigating factors. He concluded that the presence of drugs and alcohol in the appellant's system, his status as a novice driver who should not have been driving with alcohol or drugs in his body, and the catastrophic consequences of the accident demanded a significant sentence.

[16] We see no error in principle in this reasoning. Nor is the sentence unfit.

[17] Leave to appeal is granted, but the appeal is dismissed.

"G.R. Strathy C.J.O."

"Janet Simmons J.A."

"C.W. Hourigan J.A."