Court of Appeal for Ontario
Date: 20210902 Docket: C68740
Paciocco, Nordheimer and Coroza JJ.A.
Between
Her Majesty the Queen Respondent
and
Warren Lewis Appellant
Counsel: Jeff Marshman, for the appellant Samuel Greene, for the respondent
Heard: August 31, 2021 by videoconference
On appeal from the sentences imposed on July 23, 2020 by Justice Bernd E. Zabel of the Ontario Court of Justice.
Reasons for Decision
[1] Mr. Lewis seeks leave to appeal the total sentence of eight years imposed on him following on his convictions for impaired driving causing death, criminal negligence causing death, and failing to comply with probation. At the conclusion of the hearing, we granted leave but dismissed the appeal for reasons to follow. We now provide our reasons.
[2] The appellant was convicted of the offences arising out of an instance of street racing. His co-accused, who was also involved and was also convicted of related offences, was sentenced to a total of five years.
[3] The appellant was involved in street racing on a road in Hamilton during a weekday rush hour. He and his co-accused were observed driving side by side at speeds up to 130 kph, making unsafe lane changes, and tailgating one another. The posted speed limit on the road was 50 kph.
[4] Very unfortunately, a 25-year-old woman was driving out of a parking lot onto the road when she was struck by the appellant’s vehicle. The woman died from the injuries that she sustained in the collision.
[5] A toxicologist testified that, from readings obtained from both blood and breath samples, the appellant’s blood alcohol concentration was between 83 mg and 113 mg of alcohol per 100 ml of blood at the time of the collision. Her evidence was consistent with the physical observations of the appellant after the collision, including that his eyes were bloodshot and glassy and there was a strong odour of alcohol on his breath.
[6] The appellant raises three issues regarding the sentence imposed. First, he complains that the trial judge did not give him any credit for the conditions under which he was incarcerated for a period of time prior to trial. Second, he complains that the trial judge did not give him any credit for the time he spent on house arrest bail. Third, he says that the trial judge failed to apply the principle of parity given the disparity in the sentence imposed on the appellant compared to the sentence imposed on his co-accused.
[7] We do not accept any of these grounds. On the first ground, the trial judge did give the appellant some enhanced credit for the conditions that arose from the COVID-19 pandemic. The appellant complains that he should have received more credit, yet the appellant did not lead any evidence of any particular impact from the pre-trial incarceration conditions. Without evidence of exceptionally punitive conditions, the appellant was not entitled to any further credit: R. v. Marshall, 2021 ONCA 344 at para. 50.
[8] On the second ground, the appellant also did not lead any evidence as to the impact of the bail conditions on him. While the appellant was under house arrest, he was allowed to leave his house in the presence of a surety. We agree with the respondent that, depending on the lifestyle of the accused and the nature of their relationship with their surety, this form of house arrest may not operate in a harsh or punitive manner sufficient to warrant credit. Later, when the appellant obtained a job, he was also allowed to leave his house alone for employment purposes. While it would have been preferable if the trial judge had directly addressed this issue, his failure to do so only warrants appellate intervention if it appears from the trial judge’s decision that such failure had an impact on the sentence imposed: R. v. Adamson, 2018 ONCA 678, at para. 108. We are not satisfied that is the case here, both because of the absence of case specific evidence and the reasons we provide regarding the parity principle.
[9] On the third ground of appeal, we do not find any failure to apply the parity principle. There were significant differences in the surrounding circumstances of the appellant and his co-accused. In particular, the appellant was impaired by alcohol. There was no evidence that his co-accused was also impaired. Further, the appellant had longer and more aggravating criminal and driving records. Still further, unlike his co-accused, the appellant was on probation for a prior set of offences at the time that these offences were committed.
[10] The parity principle does not require that co-accused must be subject to the same sentence. To the contrary, different sentences do not violate the parity principle if differences in the surrounding circumstances justify the difference. In this case, they clearly did. Given the dangerous acts of the appellant, his impaired condition, his prior criminal and driving records, and the horrific consequences of his acts, a mid-range penitentiary term of imprisonment was entirely justified.
[11] It is for these reasons that, while we granted leave to appeal the sentences, the appeal was dismissed.
“David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.”
