Court of Appeal for Ontario

Date: 20210913 Docket: C67987

Judges: Tulloch, van Rensburg and Nordheimer JJ.A.

Between:

Her Majesty the Queen Respondent

and

Carly Anderson Appellant

Counsel:

Howard L. Krongold, for the appellant Gavin MacDonald, for the respondent

Heard: September 8, 2021 by videoconference

On appeal from the sentence imposed on January 28, 2020 by Justice Peter Doody of the Ontario Court of Justice.

Reasons for Decision

[1] Ms. Anderson seeks leave to appeal the sentence of six months imposed on her, following her conviction for aggravated assault. At the conclusion of the hearing, we granted leave to appeal and reduced the sentence to time served, with reasons to follow. We now provide our reasons.

[2] This was a case of what is commonly referred to as "road rage". The appellant, who was 24 years old at the time, was driving on a busy road in Ottawa on August 7, 2018. She cut off the car driven by the complainant and abruptly stopped about three car lengths in front of her, causing the complainant to apply her brakes and stop her car quickly.

[3] The appellant got out of her car and began to move toward the complainant’s car. The complainant, who was 66 years old, got out of her own car and walked, with the support of a cane, towards the appellant. She came very close to the appellant. The appellant pushed or shoved the complainant, causing her to fall to the roadway. The complainant sustained injuries from the fall that required hospitalization.

[4] After the complainant fell to the ground, the appellant bent down towards her. The appellant then got in her car and drove away. She turned herself in to police the next day.

[5] Appellate courts may interfere with a sentence if it is demonstrably unfit or if the trial judge has committed an error in principle, failed to consider a relevant factor, or erroneously considered aggravating or mitigating factors, and such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 43-44. In our view, the sentencing judge erred in his reliance on the decision of this court in R. v. Rocchetta, 2016 ONCA 577 as the benchmark for his assessment of the appropriate sentence to be imposed in this case. The two cases are not comparable. This error led the sentencing judge to impose a harsher sentence than was warranted given the surrounding circumstances.

[6] In reaching that conclusion, we recognize that the complainant suffered serious injuries, and we recognize that the altercation arose out of a road rage situation. On that latter point, we agree with the sentiment that acts of road rage must be denounced in clear and unmistakable terms.

[7] However, achieving the objectives of general deterrence and denunciation did not require a jail sentence of the length imposed by the sentencing judge, given the particular circumstances of the appellant. In that regard, we emphasize the appellant’s very troubled upbringing, the fact that the sentencing judge had concluded, in his reasons for conviction, that two of the three factors in support of self-defence were made out in this case, and the very positive efforts that the appellant has made, since her conviction, to improve her life, including her success at Algonquin College and her efforts to obtain counselling.

[8] We were advised that the appellant has spent 38 days in custody during the course of these proceedings. In our view, that period of incarceration is sufficient to drive home to the appellant, and to others, that instances of road rage will be dealt with seriously. Further incarceration will not advance the objectives of general deterrence and denunciation in this case. Those objectives are achieved as much by the fact of incarceration as by the length of that incarceration.

[9] It is for these reasons that we granted leave to appeal and reduced the sentence to time served. The two-year probation order along with the other ancillary orders remain in effect.

“M. Tulloch J.A.”

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”