Court File and Parties

Ontario Court of Justice

Date: 2015-01-13

Court File No.: Regional Municipality of Durham 998 13 12366

Between:

Her Majesty the Queen

— and —

Dustin Smith

Before: Justice J. De Filippis

Heard on: August 26 & November 26, 2014

Reasons for Sentence released on: January 13, 2015

Counsel:

• Ms T. Jackson — counsel for the Crown
• Mr. D. Barrison — counsel for the defendant

Reasons for Sentence

De Filippis, J.:

[1] Dustin Smith pled guilty to three charges; Impaired Operation of a Motor Vehicle Causing Bodily Harm, Dangerous Operation of a Motor Vehicle Causing Bodily Harm, and Failing to Remain at the Scene of an Accident. The Crown proceeded by Indictment.

[2] On June 14, 2013 the defendant was at a night club in Oshawa with, amongst other people, Luke Hiscock. The defendant consumed at least 10-12 drinks. At about 3 AM, he left the night club in a motor vehicle owned by his father, with Mr. Hiscock as his passenger. The defendant drove through a residential area, southbound on Grandview Drive from Olive Avenue at a high rate of speed. Mr. Hiscock estimated the speed to be between 100 to 120 km/hr. The defendant continued on Grandview where the road comes to a gradual left turn bend before heading Eastbound.

[3] As the vehicle approached the turn, it struck the left hand curb near the beginning of the bend in the road. The vehicle then mounted the curb, striking several objects including a "blue box" before colliding with two trees and a light post. As a result of the collision damage was caused to the first tree, the second tree was broken and uprooted, and the light post was brought to the ground. The motor vehicle came to a rest on its side with significant damage to all parts of the car, particularly the hood, which was smashed in. The defendant drove 1.6 km from the bar to the crash site.

[4] A local resident was awakened by the sound of the collision. She ran outside and immediately heard voices. One person was out of the car and yelling to an occupant to hurry up and get out. Ms. Grant went back inside her home to call 911 and when she went outside again she could see two figures running to the East. She went to check the car and it was empty.

[5] As a result of the accident Mr. Hiscock's face hit the windshield of the vehicle. He and the defendant exited the vehicle through the rear driver's side window. As they were leaving the defendant told Mr. Hiscock they would have to lie, saying that two black people had robbed them and stolen the car. As they were running from the scene the defendant telephoned his mother and told her this story. Soon after, the two men arrived at Mr. Hiscock's house and Durham Regional Police, as well as EMS and the fire department arrived at the scene of the collision. Police commenced a search for the individuals involved, using both K9 and air support.

[6] During the search police received information that two men had arrived at Mr. Hiscock's house. PC Mounsteven arrived and saw a woman talking to two men at the edge of the roadway. Mr. Hiscock was crying as the defendant pointed at him, yelling "don't fucking tell them shit." Mr. Smith told PC Mounsteven that a black male had crashed his car, and that the defendant had not been in the car at the time.

[7] Mr. Hiscock was bleeding from the mouth and told PC Mounsteven that he had a chipped tooth. When asked what happened, Mr. Hiscock said, "Fuck it, I almost died tonight, Dustin was driving." Mr. Hiscock spoke to another police officer and said "it's fucked up, I can't believe this shit, I wasn't driving, I don't want to rat, he's my bro, I don't want to fuck him over."

[8] The defendant was turned over to PC Delaney. He expressed concern about the well-being of Mr. Hiscock but then became agitated and shouted racial slurs towards black people. He told PC Delaney that a girl had been driving, but he could not give a name. While talking to PC Delaney he was unsteady on his feet – stumbling and swaying. He slurred some of his words. He was angry, wanting to punch and kill people. He had an odor of alcohol on his breath and red eyes. PC Delaney saw abrasions on Mr. Smith's hands, a small amount of blood on his shirt and lots of grass on his sneakers and clothes.

[9] PC Delaney determined that the defendant was the driver of the motor vehicle and arrested him at 3:40 a.m. When placed in the rear of the cruiser, he remained angry and banged his head on the window. PC Delaney opened the door and told him to stop. He complied and was taken to Durham Police 17 Division where he spoke to duty counsel. At approximately 4:24 a.m., the defendant was turned over to PC Grenier, a Qualified Breath Technician. The officer observed the defendant to have a heavy odour of alcohol on his breath and glassy bloodshot eyes, as well as numerous small abrasions. His conversation was tense and erratic, jumping from one topic to another. The defendant provided samples of his breath, with a truncated reading of 140, well over the legal limit. On the date in question, he was the holder of a G2 driver's license and not permitted to operate a motor vehicle with any alcohol in the body.

[10] As a result of the collision, Mr. Hiscock sustained the following injuries; a chipped tooth, cut lip, glass in his ears and nose, and pain in his neck and back. He suffers from headaches. Mr. Hiscock continues to see a doctor for his injuries and was referred to physiotherapy. Medical reports confirm that, one year after the collision, his "back is no longer straight" and that he complained of left lumbar spine pain and difficulty in sitting on the toilet. The most recent medical evaluation suggests that his back "is much improved but still limited forward flexion".

[11] The pre-sentence report includes comments by the defendant, his parents and, Ms Persaud, a representative of the Brain Injury Association of Durham Region. Mr. Hiscock could not be contacted (and a victim impact statement was not provided to the court). The defendant is the younger of two children born to Shirley and Glen Smith. He had a good upbringing but by his late teens was drinking 6-8 beers on weekends and doing poorly in school, including suspensions for truancy. Nevertheless, he earned all credits until Grade 12. In that year, he was the victim of an assault; he was punched to the back of the head and, upon falling down, his head struck a cement curb. He was in a coma for one week and suffered brain damage, including cognitive impairments that have affected his daily life. The defendant's mother reported that the brain injury "changed [their] lives forever". For example, she reported that although the defendant is currently in greater control of his emotions, early on he "trashed" the family home including all photographs in which he was a subject.

[12] The defendant has a limited employment history. He claims he has not consumed alcohol since this incident. However, he did not follow through with arrangements made for substance abuse counselling. Moreover, the probation officer expressed some concern about the defendant's insight into his criminal conduct. In this regard, although he acknowledges causing injury to Mr. Hiscock, he partially blames his friend for allowing him to drive, explaining he had given the cars keys to Mr. Hiscock to hold, before they entered the bar.

[13] The Crown proposes a jail sentence in the range of 8-12 months, followed by a period of probation with counselling terms, and a 3 year driving prohibition. In support of this submission, counsel points to the high readings, dangerous driving, injuries caused, failure to remain at the scene, and the fabricated story about other culprits. It is suggested that the Pre-sentence Report shows the defendant lacks insight and remorse.

[14] The Defence suggests a suspended sentence with probation for up to two years with 240 hours of community service or, in the alternative, an intermittent sentence up to 90 days. Counsel notes that the defendant is 21 years old, does not have a prior criminal record, and has supportive parents. It is submitted that the brain injury has had a significant impact on the defendant and explains why he acted as he did on the night in question. He has been on bail since then with terms that include a curfew and prohibition on operating a motor vehicle.

[15] The defendant tearfully apologized and said he accepted his punishment.

Sentencing Principles

[16] Section 718 of the Criminal Code defines the principles of sentencing as the maintenance of a just, peaceful and safe society by the imposition of 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;

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

Analysis and Decision

[17] The Crown has properly set out the aggravating factors in this case. The defendant's racial slurs are also troubling. I accept the mitigating factors emphasized by the Defence, especially, the defendant's cognitive limitations. The assault upon him and resulting brain injury is not disputed. I am advised that the perpetrator was sentenced to 90 days in jail. This has had a profound effect on his life. However, it must be noted that before this incident, in his late teens, he was doing poorly in school and regularly drinking 6-8 beers on weekends. With the guidance of his parents, he could have overcome these bad choices. The brain injury significantly complicated matters.

[18] In the circumstances of this case, denunciation and general deterrence point to incarceration as the appropriate response. The defendant injured his passenger and could have done the same, or worse, to others who might have been in the path of his motor vehicle. His subsequent conduct also highlights the need for specific deterrence. The offender's youth, guilty plea, and lack of criminal record are important mitigating factors and, when considered along with the cognitive difficulties caused by his brain injury, suggest that such incarceration be served in the community, under terms of house arrest. However, this option is no longer available.

[19] Amendments to the Criminal Code, dated 20 November 2012, about six months before the events in question, restrict the availability of conditional sentences, including, as in this case, to offences prosecuted by indictment for which the maximum term of imprisonment is 10 years that caused bodily harm. Thus, I must choose between jail and a non-custodial disposition. This must be done in accordance with the aforementioned principles of sentencing.

[20] It is my opinion that the right balance is achieved by suspending sentence and placing the defendant on probation, as set out below. This result appropriately reflects the cognitive difficulties as a contributing factor in the crimes and its impact on a jail sentence for this individual.

Sentence

[21] The defendant will be on probation for two years. In addition to the statutory terms, he will abide by these conditions:

• Report forthwith, and thereafter, as required to a probation officer;

• Take counselling as directed by that officer, including for substance abuse;

• Perform 240 hours of community service, to begin within 60 days, and be completed at a rate of at least 10 hours per month;

• Not to associate or communicate with Luke Hiscock without his written revocable consent;

• For the first 12 months, not to attend any establishment, the principal business of which is the sale of alcohol, including bars, taverns, and pubs;

• For the first six months, to be in his place of residence between the hours of 9 PM and 6 AM each day, unless in the direct company of one of his parents, or while at remunerative employment, including travelling directly to and from such employment, or for special occasions as may be approved, in advance and in writing, by the probation officer.

[22] The defendant is prohibited from driving on any street, road, or public place for a period of three years.

[23] The defendant will pay a victim fine surcharge of $200.00 per count, to be paid within six months.

Released: January 13, 2015

Signed: Justice J. De Filippis