COURT FILE NO.: St. Catharines - 2111-998-13-N2611-00

DATE: 2014·05·12

Citation: R. v. Rayner, 2014 ONCJ 246

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EMMA RAYNER

Before Justice D.A. Harris

Heard – January 9, 2014 and March 27, 2014

Reasons for Sentence delivered on May 12, 2014

A. Brown ................................................................................................ counsel for the Crown

T. Robertson .................................................................................... counsel for Emma Rayner

REASONS FOR SENTENCE

HARRIS J.:

OVERVIEW

[1] Emma Rayner pled guilty to dangerous driving which caused bodily harm to William Hobin.

[2] She is before me today to be sentenced with respect to that offence.

[3] Crown counsel argued that I should impose a sentence of imprisonment in the range of 60 to 90 days, to be served on an intermittent basis.

[4] Counsel for Ms. Rayner argued that I should suspend sentence, and place her on probation.

[5] Both counsel agreed that a driving prohibition is in order here.

[6] My task here then is to determine the appropriate sentence for Ms. Rayner.

THE LAW

[7] In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[8] The fundamental purpose of sentencing is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[^1]

[9] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^2]

[10] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[^3]

[11] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[^4]

[12] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^5]

[13] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[^6]

[14] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.[^7]

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] I must specifically consider section 718.2(d) of the Criminal Code which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[17] I must also consider the impact of section 718.2(e) which provides that "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."

[18] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[^8]

[19] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[^9] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[20] Dangerous driving causing bodily harm is an indictable offence. The maximum sentence is imprisonment for 10 years. There is no minimum sentence. A conditional sentence of imprisonment is not an option here in light of section 742.1(e)(i) of the Criminal Code.

[21] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here and at Ms. Rayner's background.

THE OFFENCE

[22] On June 19, 2013, Ms. Rayner was driving her motor vehicle from her home in Niagara Falls to work. She was running late.

[23] The roads were dry and the weather was clear.

[24] She overtook another vehicle on Beaverdams Road just as they reached a speed bump/traffic calming device. She was travelling in excess of the 50 kilometre per hour posted speed limit and so was definitely exceeding the 20 kilometre per hour suggested speed for the traffic calming device.

[25] She failed to stop at a stop sign.

[26] She then drove across another speed bump fast enough to cause her vehicle to jump.

[27] She began to lose control of her vehicle and failed to negotiate a bend in the road due to her speed. Her vehicle travelled onto the paved shoulder.

[28] She quickly redirected it back onto the road but the vehicle slid sideways.

[29] William Hobin was trimming weeds in the ditch when her vehicle struck him before continuing on, rolling onto its side.

[30] Ms. Rayner crawled from her vehicle and went to help Mr. Hobin.

[31] When speaking to him and to police later she was distraught. She stated that she was late and that she had been going too fast. She was travelling 90 kilometres per hour.

[32] The posted speed limit at that point was 80 kilometres per hour but there was a 60 kilometre per hour advisory sign for the bend in the road.

[33] Ms. Rayner was familiar with Beaverdams Road, travelling it daily.

[34] A school and a golf course are both located nearby along that road.

[35] Ms. Rayner was taken by ambulance to the Greater Niagara General Hospital for minor injuries. She was released later the same day.

INJURIES TO MR. HOBIN

[36] The paramedics believed that his injuries were life threatening and they took Mr. Hobin to the Erie County Hospital in Buffalo, New York. His condition was later downgraded to stable but serious.

[37] He suffered a compound fracture of his left femur. There was a 16 centimetre wound. Surgery was performed. This included the insertion of a 38 centimetre long pin into Mr. Hobin's leg. His spleen was also lacerated.

[38] He is still feeling pain. He has difficulty kneeling and climbing stairs. He attends physiotherapy three times per week and hopes to return to work later this year.

[39] He has experienced nightmares and insomnia. The accident has also caused him financial strain.

[40] He stated that he holds no ill will against Ms. Rayner and expressed the hope that she had fully recovered from the accident. He indicated that he did not want Ms. Rayner to be sent to jail for what she had done.

BACKGROUND OF MS. RAYNER

[41] I have had the benefit of a Pre-Sentence Report and a book of references and other sentencing materials which provided me with the following information.

[42] Ms. Rayner is 42 years old.

[43] She resides in Niagara Falls with her 10 year old daughter and with her mother and stepfather. She also has a 24 year old daughter attending university in Hamilton.

[44] Following the breakup of her marriage, she has taken on nearly sole responsibility for her daughters. She has been described as a devoted mother.

[45] She quit school in grade 10 but returned to school after her daughter was born and earned her Ontario Secondary School Diploma. She then completed a two-year Early Childhood Education program.

[46] She has been employed as a Registered Early Childhood Educator ever since. Her current employer speaks very highly of her dedication to her work.

[47] She has no issues with alcohol or drugs.

[48] The Pre-Sentence Report states that she expressed remorse for her actions and concern over the physical and emotional impact on the victim. She indicated that she accepts full responsibility for making "a poor decision" to drive over the speed limit on the morning of the offence. She reported that she has not driven a motor vehicle since that day and is unsure that she will in the future.

[49] She sustained contusions to her rib cage, chest, and sternum in the accident and was off work on medical leave for approximately one month. She continues to experience physical pain and deal with symptoms related to depression and post-traumatic stress disorder.

[50] She stated that she was willing to comply with any conditions that are placed on her and that she is amenable to community service.

[51] She is a good candidate for community supervision.

ANALYSIS

[52] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy.[^10]

[53] There is a great deal that can be said in favour of Ms. Rayner.

[54] She pled guilty. She has accepted full responsibility for her offence and expressed remorse.

[55] She had no criminal record. Her driving record does not include any "moving violations".

[56] She has been a productive and contributing member of society.

[57] She has suffered from the loss of reputation as a result of committing this offence.

[58] She too has suffered, both physically and psychologically.

[59] I am sure that she has been personally deterred by being apprehended and brought to court.

[60] She has good prospects for rehabilitation and is unlikely to reoffend.

[61] On the other hand, the offence that she committed here is an extremely serious one with horrendous consequences for Mr. Hobin.

[62] I note the comments of Epstein J.A. in R. v. Rawn where she said:

The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes: R. v. McMertry (1987), 21 O.A.C. 68, at para. 11. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.[^11]

[63] She repeated herself later, stating:

It is worth repeating - dangerous driving causing bodily harm is a serious offence. An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable.[^12]

[64] When considering deterrence, I look to the words of Zuber J.A. in R. v. Roussy, where he said:

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 or 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.[^13]

[65] So, general deterrence and denunciation are the principles of sentencing which need to be given primacy here. The question is whether this can be accomplished by means of a suspended sentence which includes restrictive or even punitive terms of probation combined with a lengthy driving prohibition.

[66] I have reviewed a number of cases in which conditional sentences or suspended sentences were imposed for similar offences. Most of these are dated however, decided prior to 2007 when section 742.1 of the Criminal Code was first amended so as to preclude the imposition of a conditional sentence for serious personal injury offences such as dangerous driving causing bodily harm. As I mentioned earlier, the most recent amendments are such that a conditional sentence is still not an option now in light of section 742.1(e)(i).

[67] As noted by Epstein J.A. in R. v. Rawn, "the more important consequence of this amendment is that it signals that Parliament has determined that conduct of this nature will not be tolerated."[^14]

[68] In any event, I have found very few suspended sentences imposed for dangerous driving causing bodily harm since these amendments came into effect.

[69] Arguably, a suspended sentence and probation can be punitive and accomplish some degree of deterrence and denunciation.

[70] I note however the comments of the Supreme Court of Canada in R. v. Proulx stating that probation has traditionally been viewed as a rehabilitative sentencing tool. Probation seeks to secure "the good conduct" of the offender and to deter him from committing other offences. It does not particularly seek to reflect the seriousness of the offence or the offender's degree of culpability. Nor does it particularly seek to fill the need for denunciation of the offence or the general deterrence of others to commit the same or other offences. Depending upon the specific conditions of the order there may well be a punitive aspect to a probation order but punishment is not the dominant or an inherent purpose. It is perhaps not even a secondary purpose but is more in the nature of a consequence of an offender's compliance with one or more of the specific conditions with which he or she may find it hard to comply.[^15]

[71] After considering all of the above, while I am not prepared to find that a suspended sentence would never be appropriate for the offence of dangerous driving causing bodily harm, I find that a short period of imprisonment to be served on an intermittent basis would be the appropriate sentence in this case.

[72] Crown counsel has provided me with one recent decision of the Ontario Court of Appeal in which an intermittent sentence was found to be within the acceptable range.[^16]

[73] I intend to structure the intermittent sentence here in such a way as to maximize the number of weekends Ms. Rayner will spend in jail while minimizing the length of time she will be away from her child on any one occasion. It will also allow her to continue her employment.

[74] This will be supplemented by a period of probation which will include a sizable community service component. My intention is that the community service order will provide the means for Ms. Rayner to give something back to the whole community.

[75] In addition, she will be prohibited from driving for the next three years.

[76] Taken together these are the least restrictive sanctions that are appropriate in the circumstances. They satisfy the need for denunciation and general deterrence while still giving effect to the principles of rehabilitation and restorative justice.

SENTENCE

[77] I sentence Ms. Rayner to imprisonment for 60 days, to be served on an intermittent basis.

[78] She will be taken into custody today for processing and then released. She will then surrender herself into custody at the jail at 7:00 a.m. on Saturday, May 17, 2014 and remain in custody until 7:00 p.m. on Sunday, May 18, 2014 and thereafter between each subsequent Saturday at 7:00 a.m. until the following Sunday at 7:00 p.m. until the sentence is completed.

[79] By my calculation, it will take her 20 weeks, or about five months, to complete that sentence. It is my hope and intention that she will pause and reflect on the seriousness of her offence each and every time she attends at the jail to serve this intermittent sentence.

[80] She will be placed on probation for three years commencing today.

[81] The terms of the probation will require that Ms. Rayner:

1. keep the peace and be of good behaviour;
2. appear before the court when required to do so by the court;
3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
4. must appear at the jail to serve her intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance unless she is taking that controlled substance pursuant to a lawfully obtained prescription;
5. must report in person to a probation officer within two working days of her release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in her supervision;
6. Her reporting requirement ends when she has satisfied her probation officer that she has completed all of her community service hours.
7. must cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;
8. must not be in the driver's seat of any motor vehicle;
9. must perform 100 hours of community service work. This work is to start within 60 days of completing her intermittent sentence and shall be completed at a rate of not less than 10 hours per month. She shall complete the work as directed by and to the satisfaction of the probation officer. She must complete all of her community service hours within 17 months.

[82] Ms. Rayner is prohibited from operating a motor vehicle on any street, road, highway or other public place for three years.

[83] She has 90 days in which to pay the victim fine surcharge.

Released:

May 12, 2014

Signed:

"Justice D.A. Harris"

Justice D.A. Harris

[^1]: Criminal Code of Canada, section 718. [^2]: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at para. 102; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46. [^3]: Criminal Code of Canada, section 718.1. [^4]: R. v. Hamilton, supra, at para. 90. [^5]: Ibid, at para. 91. [^6]: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92. [^7]: R. v. Hamilton, supra, at para. 93. [^8]: Gladue v. The Queen, 1999 679 (SCC), [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 20. [^9]: Gladue, supra, at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 through 20. [^10]: R. v. Hamilton, supra, at para. 1. [^11]: R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 (Ont. C.A.) per Epstein J.A. at para. 41. [^12]: Ibid, at para. 45. [^13]: R. v. Roussy, [1977] O.J. No. 1208 (Ont. C.A.). per Zuber J.A. at para. 5. [^14]: R. v. Rawn, supra, at para. 41. [^15]: R. v. Proulx, supra, at para. 32 quoting with approval from R. v. W.B.T., [1997] S.J. No. 826 (Sask. C.A.). [^16]: R. v. Markozashvili, 2010 ONCA 52, [2010] O.J. No. 209 (Ont. C.A.): but see R. v. Belanger, 2009 ONCA 867, [2009] O.J. No. 5242 (Ont. C.A.).