Information and Parties

Information No.: 12-13496

Ontario Court of Justice

Between:

Her Majesty the Queen

v.

Trevor Clarke

Reasons for Judgment

Rendered by the Honourable Justice D. Paciocco

On September 24, 2015 at Ottawa, Ontario

Appearances

Ms. S. Fountain, Counsel for the Crown

Mr. W. Carroll, Counsel for the Accused

Judgment

PACIOCCO, J. (Orally)

On October 9th, 2012, Trevor Clarke sideswiped cyclist Jennifer Leonard on a straight stretch of country road, severely injuring her. On June 15, 2015, I convicted Mr. Clarke of impaired driving causing bodily harm. Indeed, Mr. Clarke was so substantially intoxicated at the time that I had a reasonable doubt about whether he even realized he struck Ms. Leonard. While he did not exhibit profound physical impairment, the evidence made clear that his ability to orient himself and process information in the period immediately surrounding the collision was severely impaired.

The bodily harm that Mr. Clarke caused Ms. Leonard was devastating. It has altered Ms. Leonard's life for the worst. A battered body, close to death, months in the hospital, and left with a traumatic brain injury that has altered her energy, her memory, her taste and smell, and perhaps most tragically, aspects of her personality. She offered the Court a powerful victim impact statement describing the horrible effects that Mr. Clarke's crime had on her. I use the term "crime" advisedly. I agree with Ms. Fountain that even though the parties at the time referred to the collision as an accident, it was an accident only in the sense that Mr. Clarke did not mean to harm Ms. Leonard. His decision to operate his large truck while impaired was not accidental. While his judgment was no doubt clouded by drink, he chose to drink, and then get behind the wheel. An act that unquestionably caused Ms. Leonard's traumatic injury.

My obligation today is to impose a just sentence according to law for this crime. I do accept that Mr. Clarke is horrified by what he has done. The remorse he expressed for harming not only Ms. Leonard but other members of the community, including her family and his own, is genuine. Still, Mr. Clarke no doubt understands that he's responsible for his conduct and I have to impose a sentence that reflects the crime and his degree of responsibility.

Finding an appropriate sentence for an offender for a serious offence is always challenging. Sentencing is not a mechanical exercise. It cannot be, because not all offences are the same. Like all offences, impaired driving causing bodily harm is committed by a wide range of people. People such as the accused in a case cited before me in a prior decision of my own in R. v. Casselman, a gentleman who had a horrendous driving record and who drove without a licence or insurance in a vehicle with one headlight. The other extreme are persons like Mr. Clarke who has never been in trouble before.

And not every act of impaired driving causing bodily harm is the same. Some incidents occur after extended horrendous driving. Other incidents occur without any prior horrible driving, other than the calamity of the incident that causes the injury. Some persons who commit the offence are mildly intoxicated and others are grossly so. Some events cause minor injury and others devastating harm. That is why the law requires judges to try to craft a sentence that fits the crime. The judge is to look at those factors that aggravate the offence and those things that might mitigate it and arrive at a sentence that reflects the degree of responsibility of the offender and the gravity of the offence.

Once that measure is made, the judge must determine according to law what the objectives of the sentence should be and then craft a sentence that is consistent with sentences imposed in similar cases and which best accomplish relevant objectives. This challenging task is made modestly less challenging by the helpful, fair positions taken by both counsel.

Both Crown and the Defence agree that Mr. Clarke must be sentenced to jail. I agree as well because case law I am bound by requires in the circumstances of this case that I emphasize the punitive aspect of the sentencing objective instead of focusing primarily on crafting a sentence that fits Mr. Clarke's personal needs.

The Ontario Court of Appeal said in R. v. Biancofiore:

"General deterrence is the paramount objective in sentencing for offences of drinking and driving, especially where serious consequences result."

I have to impose a sentence that will be sufficient to intimidate members of the public to show that the risk of drinking and driving is simply not worth taking.

There are of course significant risks involved in this kind of behaviour independent of the criminal process. There is the risk of reality that you have damaged the life of an innocent human being, something that one would hope would discourage people of conscience. Then there is the risk of damaging one's own self. When Mr. Clarke got behind the wheel of his truck, he took the risk that he himself could die or be maimed, depriving his children of their father.

One would like to think that such risks would be sufficient deterrent, even more profound perhaps than the criminal penalties. Sadly, they are not enough and this type of conduct continues. So the case law holds that it is important for the law to impose penalties to add to the risks, and I must do so. The penalty has to be sufficient to discourage this kind of activity.

According to the Ontario Court of Appeal in R. v. McVeigh, the Ontario Court of Appeal has emphasized that denunciation is also an essential consideration. Denunciation is the law's attempt to answer the call for justice. It is the process by which the sentence expresses society's disapproval, indeed repugnance, and imposes fit consequences for criminal conduct. Ms. Leonard has been maimed by Mr. Clarke's actions. It is only just that he too should suffer and it is by punishing him proportionately that society expresses its denunciation. It is up to me to craft a sentence that meets those goals, while not entirely disregarding Mr. Clarke's own background and needs.

Binding case law establishes a range of sentencing outcomes that I have to consider. After examining the case law, Justice Quigley in R. v. Thompson concluded that for this kind of offence the sentence range is generally between one and two and a half years' incarceration. In some aggravated cases the sentence can go higher, such as in R. v. Cohen where the B.C. Court of Appeal upheld a sentence of three years for a serious head injury caused to a cyclist by an impaired driver.

The parties have recommended sentences to me in the appropriate range. The Defence has suggested 18 months but offered two years as the primary position. The Crown has asked for a sentence of three years' incarceration.

The Defence position is supported by the opportunity it creates to put Mr. Clarke on probation following the jail term, for up to another three years. If a judge sentences someone to more than two years, they are not entitled to place that person on probation. At the end of serving a sentence longer than two years, the offender is not under supervision.

The Defence supports probation as offering further intervention to assist Mr. Clarke to overcome his obvious alcohol dependency.

The Crown urges that there is no need for probation. Mr. Clarke has taken steps to address the problem on his own. But more importantly, the Crown's view is that a two-year sentence is inadequate given the aggravating factors. Three years, the Crown contends, is required.

So what is a fit sentence within the range?

I accept the evidence offered from many supporters that Mr. Clarke is a good man. He has never been in trouble with the law before. He has been gainfully employed. He has volunteered for the community and assisted his neighbours. He has the support of his family and continues to be a supportive parent. He has taken meaningful steps to address his alcohol issues and he understands the impact alcoholism has had on his life, including likely his marriage. And he understands the impact that this event has had not only on him, but on those affected.

This is not a case where, in my view, specific deterrence or rehabilitation need be featured. Even if the appropriate sentence left Mr. Clarke eligible for probation, this would not be a case where in my view it would be required.

I even accept that by his general character, Mr. Clarke is a caring and compassionate person. We are here today, however, because he was not a caring and compassionate person on October 9th, 2012. As indicated, Mr. Clarke chose to get behind the wheel of his large truck while significantly impaired. So impaired that I could not be satisfied that he even turned his mind to having clipped Ms. Leonard on her bike. He was so disengaged from the risk that he was prepared to respond to an emergency as a volunteer firefighter, ironically, relating to the very accident he caused.

His conduct on that occasion has to be the focus of my effort to determine where the case fits in the range.

I need to deal with one issue before identifying Mr. Clarke's sentence. Ms. Leonard understandably described in her victim impact statement how Mr. Clarke made the choice to leave her in a ditch to die rather than to remain. I understand why she and her family would expect him to be punished for that. I found Mr. Clarke not guilty of that offence. Parliament, in its wisdom, has not made it an offence to leave the scene of a drunken accident. It has made it an offence to leave the scene when you know or were wilfully blind you were in an accident and you make the decision to leave because you want to avoid criminal or civil liability. The fault for that offence rises primarily from the evil mind that is engaged in such a decision. I could not get there on the evidence which requires me to make a finding beyond a reasonable doubt. Evidence of the confusion of Mr. Clarke shortly after the collision in the circumstances of the offence, including responding to the call, left me in a reasonable doubt on that issue.

I agree with Mr. Carroll that it would be inappropriate to sentence Mr. Clarke as though he had been convicted of failing to remain. It would be wrong to sentence someone for an offence they have been acquitted of committing. It is not wrong, however, to sentence someone for driving so drunk that they are not only incapable of avoiding a cyclist on the side of the road but not even capable of knowing what any sober person would know: that they had collided with someone on the side of the road. Mr. Clarke's degree of impairment at the time of the accident aggravates things.

Most significantly, there is the devastating injury to Ms. Leonard that this crime caused. This crime came close to killing her and it left her with many challenges that she should not have to endure.

If you could stand up, Mr. Clarke.

Sentence

PACIOCCO, J. (Orally)

Mr. Clarke, it is my view that taking into account all of the principles of sentencing, including the principle of restraint, when I examine the aggravating and mitigating circumstances, it is appropriate that your sentence be at the higher end of the range and I am sentencing you to 30 months in custody.

I am also imposing a five-year driving prohibition. You are prohibited from operating a motor vehicle on any street, road, highway, or any other public place anywhere in Canada for a period of five years.

You need to understand that this prohibition will begin when your custodial sentence ends, and if you operate a motor vehicle during the period of the prohibition, you will be committing a criminal offence.

I have also been asked by the Crown to impose a DNA order requiring the collection of a sample of your DNA for inclusion in the criminal databank. Given your degree of impairment and your failure to remain at the scene as a result of your inability to even know that you were engaged in an accident, this is an appropriate case to require that that degree of evidence be available to the State in the event that it is required. I am therefore making an order pursuant to s. 487.051 of the Criminal Code that you furnish a sample of your DNA.

Are there any other issues that arise, Mr. Carroll?

MR. CARROLL: No, sir. Thank you.

MS. FOUNTAIN: No issues, Your Honour.

THE COURT: Very well.

CLERK OF THE COURT: The surcharge predates the....

THE COURT: Yes. The surcharge will carry. How much time does your client require to pay the surcharge, Mr. Carroll?

MR. CARROLL: Four months, please.

THE COURT: All right. Any issue with extending the time to pay, Ms. Fountain?

MS. FOUNTAIN: No, Your Honour.

THE COURT: In addition to the sentence I have imposed, the law automatically imposes a victim surcharge. Since this case occurred prior to recent increases in the amount of the levy, I believe that the surcharge is $100. I am going to give you four months to pay that $100. This fund is intended to provide support for Victim Services and is mandatory unless an individual is unable to pay without undue hardship. In the circumstances, that is not you, sir, and therefore I am imposing that.

Certification

I, J. Walsh, certify that this document is a true and accurate transcription to the best of my skill and ability of the recording of R. v. Trevor Clarke in the Ontario Court of Justice held at Ottawa, Ontario, taken from Recording 11-20150924, as recorded and certified by D. Johnstone in Form 1.

J. Walsh Certified Court Reporter/Transcriptionist

REASONS FOR JUDGMENT APPROVED BY PACIOCCO, J. OCTOBER 6, 2015

Photocopies of this transcript are not certified and not authorized unless affixed with the original signature of the Certified Court Reporter/Transcriptionist.