Court File and Parties

Court File No.: Kitchener 4402/11 Date: 2012-07-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kevin Eichler

Before: Justice G.F. Hearn

Heard on: April 3, 2012, June 5, 2012 and June 22, 2012

Reasons for Judgment released on: July 18, 2012

Counsel:

• Ms. Melanie Sopinka for the Crown
• Mr. George Christakos for the accused Kevin Eichler

Judgment

BACKGROUND

[1] On April 3, 2012 Mr. Eichler came before the court and entered a plea of guilty to a count under s. 252(1.2) of the Criminal Code and acknowledged that on July 30, 2011 while having the care and control of a motor vehicle that was involved in an accident left the scene of that accident with intent to escape civil or criminal liability and failed to stop his vehicle, give his name and address and offer assistance to Daniel Medeiros knowing that Mr. Medeiros had suffered bodily harm. The matter was put over for a presentence report and for victim impact statements. On June 5 the matter returned to the court and submissions were made by counsel. The presentence report was received together with the victim impact statement and various materials were filed on behalf of the defence. As well both the Crown and the defence have submitted case briefs. It should be noted the Crown elected to proceed by indictment on this matter.

[2] Following submissions the matter was adjourned ultimately to today's date for sentencing.

CIRCUMSTANCES OF THE OFFENCE

[3] On April 3, 2012 a summary of the facts was read in to the record by the Crown. Those facts were elaborated upon by defence counsel on June 5, 2012 during the course of submissions.

[4] Briefly, the facts indicate that on July 30, 2011 in the early morning hours at approximately 2:47 a.m. Mr. Eichler was operating his motor vehicle eastbound on King Street in the City of Kitchener. With him at that time was a passenger, Rory Gull-McDermott. While operating that vehicle Daniel Medeiros the victim was crossing King Street when Mr. Eichler's vehicle struck Mr. Medeiros causing substantial damage to the vehicle and significant injuries to Mr. Medeiros.

[5] A witness indicated that he observed Mr. Medeiros in the process of crossing the street when struck by the vehicle. Mr. Medeiros' body slammed into the hood of the vehicle and ultimately came into contact with the windshield. Mr. Eichler's motor vehicle slowed temporarily then drove away causing Mr. Medeiro's body to spin on the hood of the vehicle before sliding off onto the pavement on the driver's side.

[6] Mr. Eichler drove from the scene and ultimately his passenger Mr. Gull-McDermott telephoned the police to report the incident. Approximately four or five hours later Mr. Eichler was arrested at his home.

[7] When the matter came before the court on June 5 defence counsel provided further information with respect to the facts which indicate that on that particular evening Mr. Eichler had met his father at a local pub and had consumed two beers at that time. He then spent the balance of the evening with Mr. Gull-McDermott. During the course of the evening another bar was attended, however it is of note that there is no drinking and driving charge before the court nor were there any indications of impairment when the officer arrested Mr. Eichler a few hours after the incident.

[8] In any event, defence also advised that Mr. Medeiros was travelling at what he estimates a speed of approximately 60 kilometres an hour down King Street with Mr. Gull-McDermott at the time of the incident. He went to change lanes, checked his blind spot and it was at that point that Mr. Medeiros who had been attempting to cross the street was struck. Mr. Eichler then panicked, left the scene, parked his vehicle in a parking lot near some garbage bins and he and Mr. Gull-McDermott walked to the home of Mr. Gull-McDermott. Mr. Gull-McDermott conveyed to his mother what had happened, his mother asked Mr. Eichler to leave and Mr. Eichler then proceeded to his own home.

[9] Mr. Gull-McDermott phoned the police and made a report. Mr. Eichler was then arrested and provided an inculpatory statement accepting full responsibility for the incident. He indicated, among other things, to the police that he knew he would not "get away with the conduct" and that he had panicked and had made no effort to hide the vehicle.

[10] Further defence counsel advised that following the accident, Mr. Eichler's vehicle had been followed by an observer who had noted the licence plate and there had been contact between that witness and Mr. Eichler during which through open windows of vehicles Mr. Eichler was advised to return to the scene. That witness did return to assist others with Mr. Medeiros, but Mr. Eichler did not return. That witness estimates at the time of the accident Mr. Eichler's vehicle was travelling at a speed of 65 to 70 kilometres an hour.

[11] Mr. Medeiros suffered substantial physical injuries including a leg broken in three places and a broken knee and ankle. It required two surgeries on his leg which involved the insertion of steel bars and plates. He suffered a fracture of his skull and the upper vertebrae in his back together with extensive scraping and bruising on his arm. He was required to remain in hospital after being transferred from the Kitchener hospital to Hamilton until August 15. Victim impact statements have been filed and set out further detail of Mr. Medeiros' injuries. It is obvious that the injuries suffered by Mr. Medeiros were significant.

VICTIM IMPACT STATEMENTS

[12] There are actually two victim impact statements from Mr. Medeiros, one dated August 26, 2011 shortly after the incident. At that time Mr. Medeiros was recovering from his injuries. He noted that he was an outgoing person, constantly on the go, but as a result of his injuries was confined to his residence unable to walk or get around. He was dependent on others for his personal care, suffered a short attention span, was unable to work, was moody, frustrated and suffering the effects of medications he was required to take. He was using a neck and a leg brace, was unable to sleep and had numerous appointments with medical personnel to deal with his recovery. He makes it clear in his initial victim impact statement that he was very active, but his activities had ceased almost entirely as a result of his injuries. He also noted that he had been advised that he was lucky that it was not necessary to amputate his leg given the serious nature of the injuries to that leg.

[13] An updated victim impact statement dated May 31, 2012 was received by the court on June 5, 2012. In that statement Mr. Medeiros noted that when he was admitted to the hospital he had broken ribs, a fractured skull in two places, severe head trauma, shattered knee, tibia, fibula and lacerations over his entire body. He had short term memory loss and severe pain in his leg for months. He had to enter into an extensive course of physiotherapy and had to wear a neck brace for three months. Further surgery is contemplated on his leg to repair the plates that have been inserted. He still cannot walk on the leg normally.

[14] In his most recent statement he also indicates that the accident has dramatically affected his emotional state. His quality of life has been lessened, he has problems with depression and describes his life as "an emotional rollercoaster".

[15] He describes dealing with stress every day, the frustration that results and his recovery has been prolonged. He no longer is able to take part in the activities which he thoroughly enjoyed prior to the accident, including sports and quite eloquently states that it had been his yearly habit to ride his motorcycle in honour of his father on a certain day, but as a result of the injuries sustained this is the first year he will not be able to do so.

[16] Also filed is a victim impact statement of Mr. Medeiros' mother who indicates that prior to the accident her son was very active and social. She indicates that his recovery has been a strain on the family and has caused them a good deal of worry.

CIRCUMSTANCES OF THE OFFENDER

[17] Mr. Eichler comes before the court as a first time offender. He has no criminal record and is currently 20 years of age, soon to be 21. The presentence report before the court sets out the background of Mr. Eichler.

[18] His childhood was unremarkable notwithstanding his parents had some difficulties in their relationship. Both parents provided support and love for their children. Mr. Eichler's mother remarried in 2000 and Mr. Eichler has a good relationship with his stepfather. Mr. Eichler describes his family life and upbringing as positive.

[19] Mr. Eichler excelled at athletics during the course of his high school career and graduated in 2009. For the past four years he has been employed on a full time and part time basis and is described by his employer as a good employee. Mr. Eichler has no issues with respect to drugs or alcohol and there is nothing before the court to suggest that alcohol was a factor in this incident.

[20] Mr. Eichler during the course of the presentence report being prepared reported that he did not intend the accident to occur, that he panicked, was in shock and disbelief after he hit Mr. Medeiros and acknowledges his failure to remain at the scene was totally inappropriate. He expresses remorse and "deep regret" for the victim. He expressed similar sentiments when he spoke to the court during the course of sentencing.

[21] His actions on the night in question and the consequences to Mr. Medeiros have caused him to suffer anxiety and depression. He sought out professional assistance to deal with his own aftermath of that particular night. He intends to continue the counselling and only stopped it apparently as a result of financial issues.

[22] The presentence report is a positive report and notes the pro-social attitude of Mr. Eichler and the concerns he has for the victim. He is described by others as amiable, respectful, polite and a law abiding person "who committed this crime in a moment of confusion and fear".

[23] Filed are letters in support of Mr. Eichler from a number of individuals, including his mother. Those letters are consistent in their description of Mr. Eichler as a compassionate and kind young man who made a very bad decision on July 30, 2011 when he left the scene of the accident. The letters also attest to the remorse Mr. Eichler is experiencing and that he has taken full responsibility for his actions.

POSITION OF THE PARTIES

[24] The Crown takes the position that given the serious circumstances with respect to the events before the court notwithstanding the good character of Mr. Eichler, a period of custody in a traditional setting is required. The Crown submits that the appropriate sentence would be in the range of 9 months to be followed by a period of probation.

[25] Defence counsel acknowledges that a period of imprisonment is appropriate, but submits that a conditional sentence could meet all principles of sentencing and is in fact a disposition that is available to the court in this matter. Defence suggests a conditional sentence in the range of 12 months with an increased prohibition of driving privileges as well as a period of probation.

PRINCIPLES TO BE APPLIED

[26] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, [2006] O.J. No. 4870, para. 16; Regina v. D.(D.), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court of Appeal).

[27] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2(1). Section 718 reads as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[28] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Eichler and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[30] Section 718.2 sets out:

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender...;

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

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[31] The case law with respect to the sentencing on this type of an offence clearly indicates that the principles of general deterrence and denunciation are primary factors to consider, but the court still considers Mr. Eichler's youthful age and appreciates, given all the circumstances here that rehabilitation is also to be considered. In dealing with the issue of denunciation the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[32] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'

[33] Further:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

[34] Dealing with the offence of failing to remain at the scene of an accident the Ontario Court of Appeal in a number of cases has emphasized the serious nature of this offence and the significant consideration that must be given to principles of general deterrence and denunciation.

[35] In Regina v. Gummer, [1983] O.J. No. 181 the Court of Appeal in paragraph 14 stated that failing to remain at the scene of an accident to offer assistance to an injured person was a grave failure to comport with the standards of humanity and decency.

[36] At paragraph 16 in that judgment the court stated as follows:

The court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code.

[37] In Regina v. Ramdass, 18 M.V.R. 256 the Ontario Court of Appeal upheld a sentence of 9 months on an accused charged with a similar offence where the accused, after drinking alcohol, had hit a man on a bicycle and killed him. Several days later, after an intense police investigation the police arrested the accused. The trial judge sentenced the accused to 9 months imprisonment and on appeal where the sentence was upheld the court stated at page 258 as follows:

But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral and educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

[38] In this particular case as well defence advocates for a conditional sentence. The court has considered the provisions of s. 742.1 which states that a conditional sentence is not available to a person convicted of a serious personal injury offence as defined in s. 752. The words "other than a serious personal injury offence as defined by s. 752" did not appear in the Code until 2007. Well before that date Justice Kastner in the case Regina v. Arruda [2001] O.J. No. 6288 had declined to impose a conditional sentence on a fail to remain charge where the accused there had struck and killed a 69 year old pedestrian and then left the scene, concealed his car and turned himself in to the police four days later. His record was minimal, he was youthful and expressed remorse. Further, the offender's father was suffering from terminal cancer and his death was imminent.

[39] In dealing with the appropriateness of a conditional sentence in that setting, the court stated as follows:

Having reviewed the submissions of counsel and the cases submitted I am not satisfied that permitting Mr. Arruda to serve a sentence in the community would be consistent with the fundamental purpose and principles of sentencing. I am not satisfied that the statutory conditions and special conditions that might be sensibly fashioned are sufficient in this case to meet the principles of denunciation and deterrence. They do not satisfy the restrictive aspect of sentence. They do not reflect proportionality in this case and most importantly a sentence served in the community would not send the message of denunciation as to the complete and utter failure to comport with the standards of human decency by leaving a 69 year old woman to die in a snow bank.

[40] Since that case, of course as noted, a conditional sentence is not available if the offence is a serious personal injury offence as defined in s. 752. I have considered the cases provided by counsel and note the decision of the Ontario Court of Justice in Regina v. Schmitt 98 W.C.B. (2d) 243 where the court determined that such an offence is in fact a serious personal injury offence and a conditional sentence is not available. In the decision of Regina v. Weieczorek [2010] ONCJ 582 the court also considered the matter and found that it was not necessary to determine whether or not the offence was a serious personal injury offence as a conditional sentence could not meet the objectives of denunciation and deterrence in that case. (See also Regina v. Foley [2010] N.S.J. No. 641 where the court also found that a conditional sentence was not available as a result of s. 752 of the Code and Regina v. Goulet 2011 ONSC 874, [2011] O.J. No. 840 where the availability of a conditional sentence on a charge such as that before the court was considered further.)

AGGRAVATING FACTORS

[41] There are a number of aggravating factors present in this matter:

1. The offence before the court is a very serious charge. Mr. Eichler struck Mr. Medeiros injuring him severely and being fully aware of the circumstances left Mr. Medeiros in the middle of the road and drove away.

2. Even upon leaving the scene and reasonably attributing that to his panic as he has indicated, he was followed by a citizen who confronted Mr. Eichler and told him to return to the scene of the accident. The citizen then returned to the scene herself to offer assistance to Mr. Medeiros. Mr. Eichler did not.

3. Mr. Eichler although not taking steps to conceal his vehicle abandoned it in a location not at his residence and then eventually made his way home where he still did not take steps to report the matter to the police. It was only as a result of the report of his passenger to the police that the investigation was cut relatively short and Mr. Eichler was arrested some three to four hours after the event.

4. The serious and substantial injuries to Mr. Medeiros cannot be overlooked. He suffered multiple fractures, hospitalization and his quality of life has been reduced significantly. The victim impact statements speak volumes to the injuries and the consequences far beyond the physical pain and discomfort that Mr. Medeiros endured and will likely endure for some indefinite period of time. Mr. Medeiros was once an active and valuable contributing member in the community and now his quality of life and his ability to enjoy that life has been significantly compromised by the actions of Mr. Eichler. Mr. Medeiros, one might effectively say, has been subjected to a life sentence as a result of the injuries sustained and the conduct of Mr. Eichler.

MITIGATING FACTORS

[42] The mitigating factors here are as follows:

1. Mr. Eichler has accepted full responsibility and entered a plea of guilty to the charge before the court. I accept that his remorse as indicated both by that plea and his comments to both the court and the probation officer as well as attested to by others is genuine and sincere.

2. Although Mr. Eichler was not necessarily cooperative in moving the investigation along, once he was arrested some short period of time after the incident he was fully cooperative with the police and provided an inculpatory statement accepting responsibility for the event.

3. Mr. Eichler has insight into his conduct, has empathy for the victim and accepts full responsibility for his conduct. He has himself suffered depression, has sought professional assistance to deal with that through counselling and the court suspects very much that the events of July 30 will stay with Mr. Eichler probably for the rest of his life.

4. Mr. Eichler comes before the court as a youthful first time offender. He has never been in difficulty with the criminal justice system before as far as I am aware and presents as a prime candidate for rehabilitation.

5. The unfortunate circumstances of the events on July 30 were not planned or deliberated upon. There is no indication that alcohol was a factor in the accident. Mr. Eichler acknowledges that he had been consuming alcohol on that evening, but I note that there are no such related charges with respect to the matter before the court.

6. The presentence report is an extremely positive report and letters filed in support of Mr. Eichler speak to his good character. I accept that his conduct here was out of character and the event tragic not only very much so for Mr. Medeiros, but also for Mr. Eichler.

SENTENCE TO BE IMPOSED

[43] This is a very troublesome sentencing. Mr. Eichler presents as a youthful, first time adult offender facing a very serious charge and the material filed before the court clearly indicates the consequences of Mr. Eichler's conduct on July 30, 2011 have been significant not only for himself, but most importantly for Mr. Medeiros. There can be little doubt that the principles of general deterrence and denunciation are paramount considerations here, although clearly other principles of sentencing are also relevant. There is a high degree of responsibility on Mr. Eichler and blameworthiness for leaving the scene after clearly and undoubtedly being aware that the victim had been seriously injured. His panic and shock are certainly understandable, but do not in any way compensate for what appears to have been a complete disregard for the well being of Mr. Medeiros.

[44] I would find in this particular case given the circumstances and the context of the event of that evening that the offence before the court is a serious personal injury offence. However, there is really no need to elaborate on that any further as the finding of the court is that even if a conditional sentence was available for consideration in this matter, this is not a situation where the fundamental principles of sentencing could be reasonably met by such a sentence.

[45] Driving is a privilege and all of the obligations and responsibilities associated with that privilege must be respected. There is a statutory obligation to stop a motor vehicle if it is involved in a collision. Even more so, there is a moral obligation where an accident occurs and serious injuries are obvious on the individuals involved in such an accident to stop and assist each other with specific regard to those in clear need such as Mr. Medeiros in this case. Mr. Eichler not only ignored his legal obligation, he also failed to "comport with the standards of humanity and decency" by leaving the scene. A period of imprisonment in a traditional setting is called for here.

[46] I have considered the facts and the circumstances of the event and as well the circumstances of Mr. Eichler. I am satisfied that he is extremely remorseful and has support in the community all of which speak well for the likelihood of him not ever having to come before a criminal court again. I have considered the aggravating and the mitigating factors here, the submissions of counsel and the principles set out in the various case law provided. I am satisfied that the appropriate disposition in this matter is a period of imprisonment of 6 months to be followed by a period of 12 months probation and a prohibition of Mr. Eichler's driving privileges for a period of 2 years.

[47] The terms of the probation will be as follows:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so.

3. Notify the court or the probation officer in advance of any change of name, address, employment or occupation.

4. Report within two working days of your release from custody and be under the supervision of a probation officer, or person authorized by the probation officer and thereafter to report at such times and places as the person may require.

5. Make reasonable efforts to find and maintain suitable employment.

6. Attend and participate in any program or counselling that may be recommended for any area identified by your probation officer and provide proof as may be required by your probation officer of your attendance of your attendance at and participation in such programs.

7. Sign any and all releases as required by the probation officer to monitor your attendance and progress in any of those programs if deemed appropriate.

8. Perform 50 hours of community service work. That work will commence at a time and rate to be agreed upon with your probation officer, but will be completed within the first 9 months of the probation order.

9. Also as a term of the probation order, you will not have care or control of a motor vehicle during the period of probation.

[48] In addition, you will be prohibited from operating a motor vehicle anywhere in Canada for a period of 2 years. The prohibition with respect to driving is to commence following the completion of the period of imprisonment.

[49] As the offence before the court is a secondary designated offence, there will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code.

[50] The victim fine surcharge in this matter will be waived.

[51] This has been a difficult matter as I have noted and I would like to thank counsel for their very thorough and thoughtful submissions which have been of assistance to the court.

Released: July 18, 2012

Signed: Justice G.F. Hearn