Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. A. Samberg, for the Crown

— And —

William Davidson

Mr. S. Weinstein, for the Accused

Heard: November 19, 2012, February 7, 2013

NAKATSURU J.:

Introduction

[1] The accused, William Davidson, pleaded guilty to dangerous operation of a motor vehicle, assault with a weapon, criminal negligence causing bodily harm, and flight from police. These are my reasons for sentence.

[2] The agreed facts are the following. On September 20, 2011, the victim was parallel parking his car on Roxton Road. Mr. Davidson along with his passenger, Andy Calcagin, drove up to the victim's car. Mr. Davidson became impatient with the victim's parking in that location. There was a heated verbal exchange between the two. Mr. Davidson threatened the victim saying he was going to come back and kill him. Mr. Davidson sped off going northbound but did a U-turn and drove back in the direction of the victim. By this time, the victim was at the rear of his van with his rear van doors open. The offender drove past and did another U-turn and headed back northbound. Mr. Davidson drove his car into the rear corner of the van causing the back doors of the van to hit the victim in his legs around the knee. The victim collapsed. Mr. Davidson then sped off very fast and almost hit another car. Witnesses called the police and within minutes the police found the offender in the neighbourhood. The police car pulled Mr. Davidson over on Ossington Avenue but as they exited their cruiser to approach Mr. Davidson, he sped off and engaged the police in a high speed pursuit in the residential area. The accused drove the wrong way on a one way street, did not stop for signs and endangered others by his driving. The police called off the pursuit. The next day, the offender's car was found abandoned. Eventually, Mr. Davidson surrendered to the police after investigation.

[3] Mr. Davidson is not a first time offender. He has a prior conviction on September 16, 2008, for assault cause bodily harm for which he received a suspended sentence and probation for 18 months.

The Gardiner Hearing

[4] At the sentencing hearing, an issue arose that required evidence to be called. The issue was the manner in which the assault with the motor vehicle was committed. The Crown alleged that Mr. Davidson intentionally drove his motor vehicle in a manner to inflict harm to the victim. The defence disputed this. It was the defence position that he did not intend to strike the victim with his car. Indeed, the defence contended that the offender did not intend to strike the victim's van. Rather, it was submitted that he committed the assault by threatening through his act of driving to apply force to the victim when he had or caused the victim to believe on reasonable grounds that the offender had the ability to effect that purpose. In doing so, the defence argues, it was not Mr. Davidson's intention to actually strike the victim or his car.

[5] Since the Crown wished to rely on his intent to strike the victim with his car as an aggravating factor on sentence, she was required to prove this fact beyond a reasonable doubt. As a result, a Gardiner hearing was entered into where I heard evidence on this issue.

Witness Testimony

[6] A number of civilian witnesses testified. They all recounted what they observed from their own unique perspective and location. There were no real credibility issues with these witnesses. Even Andy Calcagin, Mr. Davidson's past friend, came across as unbiased and credible. Any differences between their accounts can be attributed to honest witnesses trying to remember an event from their own individual vantage point.

[7] Mr. Jose Pereira, a real estate agent, was driving to a listing around seven in the evening when he was heading north on Roxton Road, a one way street. He came upon Mr. Davidson's car in front of him. Mr. Davidson and the victim in the white van were arguing so he could not get by. The victim was at the back of the van on the sidewalk. Mr. Davidson drove north, did a U-turn, and came south and past Mr. Pereira. Through Mr. Pereira's rear-view mirror, he saw Mr. Davidson pull another U-turn and head north again. The victim had opened the back doors and was getting something. Mr. Davidson rammed the back corner and side of the van, pulled out, and then took off. Mr. Pereira could not estimate the speed of the car. Mr. Davidson hit the back door of the van and then the door closed on the victim. Mr. Pereira was making these observations as he was looking in the rear-view mirror.

[8] Ms. Melissa Dickie was walking her bicycle on the sidewalk when the collision occurred. She witnessed the verbal argument and heard Mr. Davidson threaten the victim. This took a matter of ten seconds. However, at the time she made her observations, she was standing north of the van. She had seen the van doors open and the victim standing behind. She saw the offender drive abruptly into the back of the van but given her position she could not say exactly how the car impacted the van.

[9] Ms. Stella Kyriakakis also testified. She was driving northbound on Roxton Road to get to Bloor Street and she saw a car initially going the wrong direction, make a three point turn to head north. The car then accelerated and slammed into a parked van. He backed up and drove away. She did not see anyone standing at the white van. The impact was on the right hand side of the rear where the door was open. She then heard a man screaming. The victim was on the ground.

[10] Mr. Andrew Calcagin testified. He is a friend of Mr. Davidson and was in the passenger seat of the car at the time. He has known Mr. Davidson for about six or seven years. He testified that the victim was parallel parking a cube van and was blocking traffic. Words were exchanged and it escalated to the point that Mr. Calcagin thought it may get physical. Mr. Calcagin was yelling at Mr. Davidson to leave. They were having a nice day up to then. He testified that there were threats exchanged from both sides but although he could not recall exactly what they were, the threats were nasty.

[11] Mr. Calcagin testified that victim got out of the van and went to the back. It looked like he was going to get something. The doors were open. Mr. Davidson's car accelerated, went diagonally, and went swerving into the van. It caught the right passenger side back door which closed on the victim. Mr. Calcagin lost it and became angry with Mr. Davidson, asking him why he would do something like that. He did not recall any response. He did remember that at the end of it all, after the police chase before they went their separate ways, Mr. Davidson said he had no idea what came over him. His reaction was more of "I cannot believe what just happened."

[12] Mr. Calcagin testified that he did not think they had much chance to go very fast as they only travelled a short distance. But it was the power of the automobile, the weight of the car, that contributed to the collision. It all happened very fast. Mr. Calcagin testified that he did not know whether the collision was intentional or not. Mr. Davidson said nothing before he hit the van. It was pretty outrageous to Mr. Calcagin and Mr. Davidson had never done anything like that before. Mr. Calcagin testified he thought Mr. Davidson braked prior to hitting the van since the car kind of went to the right. Otherwise, the car would have hit straight on into the rear of the van. Instead Mr. Davidson went to the right, steering away from the van when it came into contact with the rear door. Mr. Calcagin believed that had Mr. Davidson steered further right, it was quite possible the collision could have been avoided.

[13] Mr. Calcagin testified that he did not believe Mr. Davidson was under the influence of anything that day. He was not sure the extent of Mr. Davidson's substance abuse problem as he kept it well hidden. However, Mr. Calcagin knew it was heroin use and his friend was seeking treatment. Mr. Calcagin was sure Mr. Davidson was not on anything that day as he had made it clear Mr. Davidson was not to do anything around him and they had spent from the night before together. Mr. Davidson did seem a bit on the edge and angry.

[14] Mr. Calcagin testified that either the day or night before, Mr. Davidson had gone to the hospital by ambulance. He understood that Mr. Davidson was suffering heart palpitations and panic attacks.

[15] As previously indicated, I accept the evidence of Mr. Calcagin. Although he is a friend, it is obvious to me from the substance and manner of his testimony, that he was shocked by the behaviour of his friend and wishes to dissociate himself from that conduct. In other words, putting it bluntly, he is not at all inclined to do his friend any favours from the witness box. He is telling it as it is.

Findings on Intent

[16] Taking all these accounts together and the agreed statement of facts, I find that the Crown has not proven beyond a reasonable doubt that Mr. Davidson intentionally drove at the victim to strike him with his car. By his plea to assault with a weapon, as specifically clarified through his lawyer, he has admitted to threatening by his act of driving his car to apply force to the victim when he had the ability to affect that purpose. However, the Crown has not proven beyond a reasonable doubt that he intended to hit the victim with his car. In short, I find that the victim was physically struck indirectly by Mr. Davidson's car unintentionally.

[17] The Crown argues that proof can come from the threats of violence Mr. Davidson directed against the victim. While I have considered this, at the end of the day, contextually, both men were angry and confrontational. The threats made by Mr. Davidson, nasty and violent though they were, could equally be an expression of his angry emotional state as much as direct evidence of his intention to harm.

[18] The reasonable doubt arises from the nature of the driving and the evidence of Mr. Calcagin. First of all, Mr. Davidson's car did not actually strike the victim. Rather it was a chain of events whereby his car struck the van and perhaps the rear van doors which then closed upon the victim. Had the offender truly wished to have hit the victim directly he could have readily done so. The victim was in the open with his back to the offender. The victim took no evasive action and appears not to have even seen the car coming. While Mr. Davidson could have intended to apply force indirectly to the victim, in my opinion, this is far-fetched. The complex and fortuitous method whereby the door struck the victim could not have been thought out in advance by Mr. Davidson.

[19] Mr. Calcagin's evidence supports this conclusion. He testified that Mr. Davidson veered to the right at the last moment and possibly applied his brakes. It was apparent to Mr. Calcagin that if the accused did wish to strike the victim, he would have driven straight forward which he did not. Looking at all the evidence, I find that Mr. Davidson acted in senseless and mindless rage. But he did not direct his car at the victim with the intent to strike him with it.

[20] Of course, the offender's act remains serious. He recklessly and intentionally drove his car towards the rear of the van. He also intended to use his car as a weapon to threaten the victim. The Crown has failed to prove beyond a reasonable doubt that he intended to strike the victim with his car. That being said, it was entirely foreseeable that this could have been a possibility given the dangerousness of his driving.

The Sentence

Crown and Defence Submissions

[21] In submissions, the Crown has focused on general deterrence and denunciation. Mr. Davidson has a prior criminal record in 2008 for assault cause bodily harm for which he received probation. The Pre-Sentence Report notes compliance issues and problems when he was younger. The Victim Impact Statement indicates the suffering of the victim; something that is on-going to this day. The flight from the police was extremely dangerous and reckless and put others at risk. The Crown submits that he should receive 1 year custody for the criminal negligence causing bodily harm, dangerous driving, and assault with a weapon. She further submits that Mr. Davidson should receive a consecutive sentence of 6 months on the flight from police offence. The total jail time should be 18 months. This should be followed by an 18 month probationary period, a 3 year driving prohibition, a DNA order, and a s. 109 order.

[22] The defence submits that an appropriate term of imprisonment is 6 to 9 months. The defence focuses on Mr. Davidson's substance abuse issues and his efforts at rehabilitation while acknowledging the other principles of sentencing that are engaged by the facts.

Sentencing Principles and Aggravating Factors

[23] In assessing what the appropriate sentence should be, I have regard to the proper principles of sentencing as found in the Criminal Code. Proportionality is a key consideration. In this case, given the nature of the offences, deterrence and denunciation are important factors. This much is obvious.

[24] In terms of aggravating factors, the facts of the offences are aggravating. First of all, the offences were committed in an act of road rage over an argument about the victim's parallel parking. The confrontation should not have escalated to the point it did. Further, Mr. Davidson had an opportunity to drive away and cool off. However, he turned back. After doing so, he rammed the rear of the victim's van. Then, rather than assisting the victim, who was screaming in pain, he drove off.

[25] The victim also suffered significant injuries. He was an active construction worker prior to the incident. The actions of Mr. Davidson caused injuries to his right leg. The victim has been in rehabilitation and he had an operation to repair his ACL ligament. He remained off work for a few months and this caused him financial strain. His doctor has advised him that he should think about other forms of work since the manual labour required of him may prove to be too much for his leg. The victim is worried whether he can successfully re-train to do that at the age of 39.

[26] Mr. Davidson has a criminal record for violence. I acknowledge that there is a bit of a gap in his record and it is a singular conviction for which he only received probation and no jail. That being said, he is not a first offender and the conviction is related.

[27] In addition to these aggravating factors, there is his conduct after the collision. His driving was atrocious and it is very fortunate that no further injury or property damage arose from it. Thus, there is a need in my view to impose a consecutive sentence for the conviction of flight from the police.

Mitigating Factors

[28] There are a number of mitigating factors. I will elaborate more on some of them. Of course, there is the plea of guilty, the remorse shown by Mr. Davidson, and his rehabilitative efforts. These are all important in this case.

[29] In assessing what the proper sentence should be, both parties agree that a term of imprisonment is warranted. There is no serious disagreement with the probation or the other orders, except the driving prohibition. Fundamentally, the point of disagreement is the length of the custody necessary to meet the requirements of sentencing.

[30] First of all, the offences are all serious. It is true that the Crown has not proven beyond a reasonable doubt that Mr. Davidson meant to hit the victim. If that was the case, in my opinion, the range of sentence would have been significantly elevated. Rather, I find what occurred in this case is that a verbal confrontation arose between the two men that escalated to swearing and threats. This fuelled Mr. Davidson's anger and he simply lost control of his behaviour. He drove dangerously and erratically. His car, although unable to reach high speeds, was used to threaten the safety of the victim. It could have been worse. The injuries sustained by the victim, in these circumstances, could have been greater than what occurred.

[31] This assessment of the offences and Mr. Davidson's role in it shows a significant degree of moral blameworthiness. It is tempered by the fact that the injuries suffered were only to the victim's right leg. The impact of his behaviour did have significant consequences for the victim but it did not permanently disable him. I note no medical evidence was provided to me about the victim's injuries.

[32] Although, no doubt Mr. Davidson was still in an heightened emotional state and likely in a state of panic, his driving conduct fleeing from the police was fraught with risk. Again, the tempering factor is that it did not result in harm to anybody or property.

[33] The sentence must deter and denounce this conduct. Only a significant term of imprisonment will do so. The question for me is the length of that term. It is here that there has to be a greater examination of the background of Mr. Davidson.

Background and Personal Circumstances

[34] Mr. Davidson is 24 years of age, single, but in a steady relationship with his girlfriend. He is currently a student at the University of Toronto in part-time studies attempting to finish his degree. His ultimate goal is to do post-graduate work. He is doing well in school. He has a very supportive family and I am advised that he is a model son in many ways, taking his responsibilities seriously.

[35] Since September 20, 2011, he has lived with his parents under a form of house arrest. His liberty has been restricted but he has been able to pursue his studies.

[36] Numerous character letters from friends of the accused were submitted. They paint the picture of a young man who is intelligent, compassionate, and hardworking. They list numerous characteristics of the man at odds with the facts of the offences. They support and confirm Mr. Davidson's profound regret for his actions. They also indicate that Mr. Davidson, since his arrest, has taken a newer and better path; away from the destruction of his addiction and into more positive activities. He has developed a healthier attitude and is accepting of his upcoming imprisonment. They also confirm the severity of Mr. Davidson's addiction to drugs. It is clear he enjoys considerable support in the community.

[37] Sometimes, character letters presented on sentencing do not have a great deal of weight in that for some offences, it is by the good reputation of the accused, the accused has an opportunity to commit the offences. Other times, they simply reveal the unfamiliarity of the writers with the real character of the offender. In this case, I can attribute significant weight to these character letters. They do show how much out of character the offences are. They confirm the severity of his addiction. They show the insight and gains he has made since the offences. In sum, they auger well for Mr. Davidson's rehabilitation.

[38] The Pre-Sentence Report is overall a positive report. It confirms the other materials submitted by the defence at this sentencing. It does note some difficulties with missed appointments and his lack of cooperation addressing his drinking while on his probation in 2008. However, one must contextualize these comments. The behaviours observed were based upon Mr. Davidson when he was four years younger and before he came to grip with his addiction issues.

[39] The family support comes out in the Pre-Sentence Report. According to the close family, Mr. Davidson is not an aggressive or explosive person. Rather, he is respectful, fun loving, and humorous. He has done well in the field of sports and music.

[40] It is clear that substance addiction and its deleterious effects form a focus in the offender's later life and in this sentencing. Mr. Davidson had to initially drop out of university due to it. The jobs he held down after have been in the service industry. He has not been employed since his arrest.

Addiction and Medical Evidence

[41] The history of his addiction is set out in the very detailed psychiatric reports of Dr. Glancy and Dr. Wiebe. I will not repeat it. I will say that I do accept the opinions of these respected health professionals. Mr. Davidson has a very serious addiction to opioids including heroin and to cocaine and has been struggling with this addiction for some time.

[42] Mr. Davidson is a client of the Center for Addiction and Mental Health (Henceforth, "CAMH"). He is participating in the methadone program. From my review of the reports, his treatment has been intensive and it has to date been very successful. It also has been closely monitored by the treatment team.

[43] Osamu Minami, his addiction therapist, writes:

The treatment team observes that Mr. Davidson has made significant changes about his substance abuse and he has been maintaining those changes…recovery from substance use is challenging for clients. However, despite the additional stress and challenges imposed by the house arrest condition added in his life, Mr. Davidson has responded very well to the AMS treatment program and has already made a significant series of positive changes in his life.

[44] Dr. Wiebe, his addiction specialist at CAMH, writes that Mr. Davidson has since September of 2011 abstained completely from opioid and cocaine use. He is on methadone but is tapering. He has demonstrated excellent commitment to all aspects of his therapy. The treatment goal is to continue the taper. While the risk of lapse is dependent upon a number of factors, Dr. Wiebe opines that at the moment it is low. In conclusion he writes:

Mr. Davidson has suffered severe consequences due to his addiction to opioids and cocaine, but through his engagement in medical treatment and therapy, he has become a model patient for addiction recovery. I hope that his sentence will take into account an understanding of his progress in recovery from addiction and his needs for ongoing medical treatment, therapy and occupational fulfillment.

[45] Dr. Glancy's report is a thorough one. He has done a number of tests and collateral investigations. Dr. Glancy concludes that it is vital that Mr. Davidson continue with treatment and that he has a good connection and rapport with his team at CAMH. Further, he concludes about Mr. Davidson's present condition in the following way.

The assessment reveals that he is still experiencing mild symptoms of anxiety and depression, consistent with partially treated generalized anxiety disorder. Testing for anger confirms the clinical history that anger is not a repetitive feature and is not significantly ingrained as a trait.

I would conclude, guided by the HCR-20 and the totality of the assessment, that the likelihood of future violence is low.

Historically, he has one previous conviction that occurred when he was 18. He has a history of severe substance abuse problems, which are now controlled.

On the positive side he does not demonstrate relationship instability, and he is stable at university. Most particularly he did not have early maladjustment problems, and is not a psychopath or other personality disorder. He does not have prior supervision failure.

Clinically, he has good insight, positive attitudes and is not generally impulsive. He is responding to, and is connected to, a program. He has characteristics that predict a good treatment response.

[46] The addiction issue is important in this case. I accept that Mr. Davidson at the time of the incident was suffering from opioid withdrawal. This evidence comes from Mr. Davidson, Mr. Calcagin, Dr. Wiebe and Dr. Glancy. It also makes sense in the context of what happened that day and who Mr. Davidson is normally. The night before, Mr. Davidson had attended the Toronto Western Hospital describing a seizure. Dr. Glancy opined that he was probably experiencing a panic attack perhaps related to the withdrawal he was experiencing despite being treated on a small dose of methadone. He had also used heroin and a psycho-stimulant, which made his withdrawal even more intense.

[47] In addition, it had an effect on the commission of the offences. Dr. Wiebe opines that any criminal activity during this time would have been significantly affected by impaired judgment due to opioid withdrawal.

[48] Dr. Glancy supports this conclusion and opines:

At the time he was experiencing a craving for opiates with some withdrawal symptoms that coupled with anxiety, would likely have greatly increased his irritability. These symptoms would likely contribute to an understanding of the incident.

[49] His addiction and the withdrawal symptoms had an effect on his behaviour at the time he committed these criminal offences. This has a significant mitigating effect on Mr. Davidson's moral blameworthiness. In other words, he did not with cold detachment deliberately drive in the fashion he did. He reacted angrily and uncontrollably due to an underlying medical condition that contributed to his behaviour.

[50] In and of itself, this factor does not mean that an offender should benefit from the existence of such a condition. However, coupled with it, Mr. Davidson is, I find, truly remorseful for what happened to the victim and what he did. He has gained insight and motivation to achieve control over his addiction. Most importantly, he has been successful in all the circumstances, and has over a number of months gained a proven track record of that success. The health care professionals who have seen him are very positive about his rehabilitation and consider him a low risk. He has the community and family support and the individual advantages to completely rehabilitate himself and make a positive contribution to society.

[51] It is the combination of these factors that makes this case, in some respect, exceptional. It must be also remembered that he is still a relatively young man in his twenties. Some leniency should be extended to Mr. Davidson.

[52] I recognize that there is the prior assault on his record, but I am lead to understand this arose out of a dispute with a pizza delivery man which lead to a consensual fight where Mr. Davidson broke the man's nose. Alcohol was involved in this incident. The sentence he received at the time indicates to me that there were mitigating circumstances existing at the time of the offence.

[53] There is then the time he spent on bail prior to this sentencing. In my opinion, this must be a mitigating factor. While I do appreciate that he has been able to attend to his schooling and treatment while on release, nonetheless, the condition is restrictive on his liberty and he has been on it for a significant period of time. While I will not attribute an exact amount of credit to this factor or use any formula in calculating its effect, I will use it as a mitigating factor to reduce his sentence. In other words, Mr. Davidson's sentence would have been longer but for this time spent on bail.

[54] In my view, the sentence requested by the Crown does not adequately take into account the diminished moral blameworthiness of the conduct due the impairment of his judgment at the time, the insight and remorse gained by the accused including his plea of guilty, and the success he has had in rehabilitation. These factors in my opinion should reduce the sentence to a range where total sentence should not be moving beyond the mid-reformatory range as suggested by the Crown. I do have a concern that an overly lengthy jail sentence will set back the rehabilitation of this young man. To do so, would ultimately lessen the protection of the public.

[55] In my view, the defence range is one that reflects the individual factors at play in this case. It is not an insignificant period of incarceration for a young man who has never spent time in custody before. It will have the deterrent and denunciatory effect that is needed due to the aggravating facts of the offences. It will recognize the harm done to the victim and the need to protect society from this type of behaviour.

[56] The sentences for the offences committed on the victim and flight from police should be consecutive sentences. It is clear they should be treated separately. In sentencing Mr. Davidson, I also take into account the principle of totality in ensuring that the two consecutive sentences remain proportional.

Sentence Imposed

[57] In my final conclusion, to give effect to all the proper principles of sentencing the following terms of imprisonment is imposed: 7 months concurrent sentences for the criminal negligence causing bodily harm, assault with a weapon, and dangerous driving; 2 months consecutive for the offence of flight from police. The total sentence is 9 months. Given the need for continuing treatment, I endorse the warrant of committal with the recommendation that Mr. Davidson serve his time at OCI.

Kienapple Issue

[58] The defence has raised a Kienapple issue with respect to the assault with a weapon and the criminal negligence causing bodily harm. I am not persuaded that one of the charges should be stayed under that principle. While factually the two offences may be similar, they are quite different in law and the legal nexus between the two offences does not suffice to make the application of this principle warranted.

Probation and Other Orders

[59] Following the term of imprisonment, Mr. Davidson will be placed on probation for 18 months. He will report forthwith upon release to a probation officer and thereafter required. He will take such counselling recommended by his probation including counselling for drug addiction and anger management. He will sign all releases so that his probation officer can monitor this. He will have no contact directly or indirectly with the named victim. The last condition will be that he will not possess any weapons.

[60] There will also be an order made for a DNA sample and a s. 109 order made.

Driving Prohibition

[61] Finally, with respect to the driving prohibition. The Crown asks for 3 years. The defence submits that there already has been a driving prohibition condition on his bail and that Mr. Davidson has not been able to drive for a number of months. As a result, the defence argues he should be prohibited for only two years.

[62] In my opinion, driving remains a privilege in our society. It is not a right. While I acknowledge that Mr. Davidson has no prior history of similar driving, the driving here in this case was so outrageous and sustained that there is no injustice in prohibiting him for the three year period. The fact he was prohibited on his release was a condition enacted to protect the public while he was out on bail. The timing of his plea was in Mr. Davidson's choosing. Finally, given the severity of his addiction issue, even though he has achieved great success in dealing with it, I find that it is entirely right that the driving prohibition be extended for this lengthier period of time to ensure the protection of the community. During this time, the gains Mr. Davidson has made so far can, hopefully, be made permanent.

Released: May 14, 2013

Signed: Nakatsuru J.