Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240513 DOCKET: C70872

Tulloch C.J.O., George and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Haleigh Hutchinson Appellant

Counsel: Christi Hunter and Taufiq Hashmani, for the appellant Baaba Forson, for the respondent

Heard and released orally: April 18, 2024

On appeal from the sentence imposed on June 14, 2022 by Justice David A. Harris of the Ontario Court of Justice.

Reasons for Decision

[1] Shortly after midnight on August 18, 2019 the appellant was driving her car on Trafalgar Rd. in Milton. The victim, riding his bike, was travelling in the same direction just ahead of her. After passing a vehicle the appellant struck the victim, ejecting him from his bike. The appellant’s speed was approximately 131 km/hr in an 80 km/h zone immediately prior to the collision. The victim sustained serious injuries, including severe head trauma, and was left in a coma.

[2] The appellant initially pleaded guilty to dangerous driving causing bodily harm. After the guilty plea, but before sentencing, the victim died from the injuries sustained in the collision. On consent, the Information was amended charging the appellant with dangerous driving causing death. The appellant’s election and plea remained the same and the parties agreed that all previously admitted facts and exhibits would still apply.

[3] The sentencing judge imposed a conditional sentence of two years less a day, a 2-year probation order, and a 10-year driving prohibition, in addition to other ancillary orders. The appellant only appeals the length of the driving prohibition. She argues that the sentencing judge 1) erred in principle by imposing a 10-year driving prohibition, and 2) erred by failing to consider that the appellant’s license had been suspended for the nine months before she was sentenced. Should we find that the sentencing judge erred, and decide afresh the length of the driving prohibition, the appellant seeks to admit fresh evidence.

[4] The appellant has a significant driving record, including four convictions for speeding. The most recent, in 2017, was for travelling 109 km/hr in a 60 km/hr zone.

[5] The starting point is s. 320.24(5)(a) of the Criminal Code which grants to sentencing judges the discretion to impose a driving prohibition for any duration that they consider appropriate when the offender is convicted of dangerous driving causing death. A ten-year prohibition was therefore statutorily available.

[6] In the context of dangerous driving, deterrence and denunciation are the paramount sentencing objectives, including when determining the appropriate length of a driving prohibition. The sentencing judge’s reasons make it clear that these objectives, while not to the exclusion of other sentencing principles, were the primary consideration. The sentencing judge also recognized that a conditional sentence is available where the total sentence can satisfy these objectives. He concluded that, in order to make a conditional sentence sustainable on the facts of this case, it was necessary to make a driving prohibition longer than what he would have otherwise imposed.

[7] The appellant argues that the sentencing judge was wrong to rely on this court’s decision in R. v. Frickey, 2017 ONCA 1024, in which a 10-year driving prohibition was upheld on appeal, as a benchmark, as the facts are distinguishable in two respects: First, unlike Ms. Frickey, the appellant had not been convicted of further driving offences after being charged; and second, again unlike Ms. Frickey, the appellant had been assessed by a psychiatrist who found her to be a low risk to reoffend.

[8] We reject this argument. The sentencing judge’s reasons demonstrate that he was well aware of the key features that distinguished the appellant’s circumstances from those present in Frickey, namely that, unlike the appellant, Ms. Frickey received a custodial sentence outside of the generally accepted range (which, in the appellant’s view, more clearly necessitated a lengthier driving prohibition), and that the appellant “[had] not offended further since this happened, almost 34 months ago”. However, despite these distinctions, given the fact Ms. Frickey and the appellant had been convicted of similar offences (Ms. Frickey was convicted of dangerous driving causing bodily harm), and had similar driving records, it was reasonable to impose similar driving prohibitions.

[9] Furthermore, the fact that the appellant had been assessed by her psychiatrist as being a low risk to reoffend, when there was no such evidence in Frickey, is not relevant. It simply offered no basis on which to meaningfully distinguish the cases such that the appellant’s prohibition had to be shorter.

[10] Lastly, the sentencing judge did not err by failing to consider that the appellant’s license had been suspended nine months prior to her sentencing. While the sentencing judge does not expressly reference the license suspension in his reasons, given his rationale for imposing a 10-year prohibition – to ensure that the overall sentence was consistent with the fundamental purpose and principles of sentencing – the automatic suspension that came into effect upon a finding of guilt did not impact the fitness of the global sentence. In any case, while it would have been open to the sentencing judge to grant credit for this period of time, whether to do so or not was within his discretion.

[11] The sentencing judge provided cogent reasons explaining why he believed a ten-year driving prohibition was appropriate, and, consistent with this court’s direction, considered the sentence as a whole when determining it’s length. The sentencing judge committed no error in principle, and the length of the prohibition is not demonstrably unfit. The decision is therefore owed deference.

[12] The appellant acknowledged that the fresh evidence she seeks to adduce would only be admissible if we were to find an error in principle and engage in a fresh assessment of the appropriate sentence. Having found no such error in principle, we need not consider the fresh evidence.

[13] For these reasons, while leave to appeal sentence is granted, the sentence appeal is dismissed.

“M. Tulloch C.J.O.” “J. George J.A.” “P.J. Monahan J.A.”