Court File and Parties

Court File No.: 14-0366

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Freddy Conty

Before: Justice Robert S. Gee

Heard on: December 10, 2015 and February 12, 2016

Reasons for Sentence Released: April 15, 2016

Counsel:

• A. Paparella for the Crown
• R. Yanch for the Accused

Introduction

[1] The night of July 26, 2014 started out like many summer nights do, friends meeting at a bar, having a few drinks and playing some pool. That seems to be the way it started for the four persons involved in this case. However it ended tragically, with a single vehicle accident, resulting in life threatening injuries to two of the four occupants, and with the other two occupants, the accused being one of them, leaving the scene.

[2] The accused, Freddy Conty was the driver of the vehicle involved. As a result of the accident, he was charged with two counts of dangerous driving cause bodily harm, and as well, with failing to stop at the scene of an accident, knowing that bodily harm had been caused. His trial on these charges was set to commence on December 10, 2015. An agreement to resolve the matter was reached the day before the start of trial, and on December 10, 2015 Mr. Conty pled guilty to failing to stop at the scene of the accident knowing that bodily harm had been caused, contrary to s. 252(1.2) of the Criminal Code. He is here today to be sentenced for that offence.

[3] The position of the Crown is for a period of custody of at least 12 months plus a two year probation order. A driving prohibition for five years and DNA are also sought. The defence suggests a period of custody of 90 days, to be served intermittently, would be appropriate, along with a shorter driving prohibition.

Facts

[4] The facts of this case underscore, in stark terms, the purpose for which the obligations imposed by this section of the Criminal Code were enacted. Section 252 of the Criminal Code requires everyone who is in the care or control of a vehicle that has been involved in an accident to remain at the scene, provide his or her name and address and, where a person has been injured, render assistance. Failing to stop at the scene of an accident where bodily harm has resulted, is an indictable offence with a maximum sentence of 10 years imprisonment.

[5] The night of July 26, 2014 started for the foursome at the Victoria Hotel in Dunnville. The accused was there with his friend Georgina Sullivan. Also there was Andrew Zahourski and Shannon Carson. The four began playing pool and were drinking while doing so. They soon devised a plan to go to Welland to attend some bars there. The accused drove to Welland where they visited several bars, having drinks at each, ending at the Olympia. They left the Olympia around closing time heading back to Dunnville. Once again, the accused drove. Georgina Sullivan was the front seat passenger while Andrew Zahourski and Shannon Carson were in the back seat.

[6] At about 3:45 a.m. they were driving southbound on Wainfleet/Dunnville Townline Road approaching a T-intersection at Feeder Road West. As they approached, the accused was arguing with Ms. Sullivan and not paying complete attention to his driving. As a result he drove through the intersection without stopping for the stop sign, and was traveling too fast to make the turn. The vehicle left the road on the north side of Feeder Road, struck the ditch, rolled and came to rest on the north side of the ditch, some distance away from the roadway.

[7] When the vehicle rolled, Shannon Carson was ejected and sustained life threatening injuries. Andrew Zahourski also suffered significant injuries. He was able to get out of the vehicle and attended to Ms. Carson. He also called 9-1-1 from his cell phone.

[8] The accused also got out of the vehicle. He briefly checked on Ms. Carson, spoke to Mr. Zahourski then he and Ms. Sullivan walked back to the road and flagged down a passing motorist. At no time did he request assistance for the injured person, nor did he call for assistance himself. He requested that he and Ms. Sullivan be driven back to her place where they remained until the morning. In the morning he returned to his home where he was located by the police, some 17 hours after the accident.

[9] Mr. Zahourski, although he was on the line with the 9-1-1 operator, was unfamiliar with the area or where the accident occurred. As such, he was unable to assist much in directing emergency responders to the scene of the accident. The person who would have been able to advise the operator where they were was the accused, but he had left. As a result, it took the ambulance some 26 minutes to locate the scene of the accident and to begin to render assistance to the injured.

[10] As noted Ms. Carson had suffered severe life threatening injuries. These included a broken nose, broken neck, shattered shoulder, spinal injuries, broken left foot, shattered right knee and a compound fracture to her right femur. Notwithstanding the severity of her injuries she remained conscious after the accident, lying on the ground in excruciating pain, unsure if she would receive help for her injuries in time to save her life.

[11] Both Mr. Zahourski and Ms. Carson were initially transported to West Haldimand War Memorial Hospital. Both needed to be transported to Hamilton General Hospital due to the severity of their injuries. In fact, Ms. Carson was airlifted to Hamilton as her injuries were considered life threatening.

[12] Ms. Carson was confined to a wheelchair for the next year and a half following the accident. To date, she has had 22 surgeries as a result of her injuries, and has more to come. She remains in constant pain and continues to undergo treatment for her injuries. Needless to say, her quality of life has been diminished greatly, and likely will be indefinitely.

[13] Mr. Zahourski also suffered significant injuries. He spent a week in the hospital and underwent abdominal surgery to treat internal bleeding and intestinal tears. After leaving the hospital he required six weeks of at-home nursing care. Since the accident he has had numbness and mobility issues. Like Ms. Carson, his quality of life has been diminished significantly since the accident.

Analysis

[14] The fundamental principle of sentencing in all cases is that of proportionality. That means the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see s. 718.1 of the Code). This requires an examination of the aggravating and mitigating factors involved, both in the offence itself and the personal circumstances of the offender. As well the established sentencing principles enumerated in s. 718.2 of the Code must be kept in mind.

[15] The aggravating factors in this case are numerous and obvious.

[16] First, the injuries suffered by Ms. Carson and Mr. Zahourski were grave and life threatening. They needed immediate medical attention. The person in the best position to ensure they received this attention as soon as possible was the accused, and he chose to leave without making any effort to ensure they received help.

[17] Furthermore, this is not a situation where an accused had a moment of panic and fled only later to return to offer assistance, or at least call to ensure help for the injured was on the way. Not only did Mr. Conty leave the scene without rendering any assistance, at no other time after leaving the scene did he exhibit any level of the common human decency one would expect from a person in his situation. For instance, he apparently never advised the person whom he flagged down that there had been an accident and he was leaving injured persons behind. He never contacted police or anyone else when he got to Ms. Sullivan's residence to ensure help was on the way, and likewise, when he returned to his residence he again took absolutely no steps to obtain help or to advise police of his role in the accident. For 17 hours after the accident, until the police arrived at his door, he was content to stay silent.

[18] In submissions and in his statement to police which was filed as part of the facts in this matter, the accused minimizes the seriousness of his actions by stating he knew Mr. Zahourski had called 9-1-1, so he knew police had been notified and were responding.

[19] The fact he may have known Mr. Zahourski called 9-1-1 completely glosses over why his failure to act was so serious. As noted, the accident occurred in a very rural area, not near any houses or businesses, and the injured persons were off the roadway and not visible to any other vehicles that may have passed by. Additionally Mr. Zahourski had no idea where they were and was unable to offer much assistance to the 9-1-1 operator, who herself only had a vague understanding of where the accident took place, resulting in the ambulance taking 26 minutes to locate them.

[20] Mr. Conty's submissions and his statement imply he was unaware when he left that the first responders were having difficulty locating them. However this implication is inconsistent with the known facts. The 9-1-1 call was made an exhibit as was a transcript of it. On at least three occasions before Mr. Conty left the scene, Mr. Zahourski was calling out to him for information about where they were. In leaving the scene as he did, Mr. Conty further imperiled the lives of Mr. Zahourski and Ms. Carson.

[21] There is also the fact that the accused had been drinking that night, although he claims this was not a factor in the events. An agreed statement of facts was filed. In it Mr. Conty admits to drinking while playing pool at the Victoria Hotel in Dunnville. It also indicates the four left to visit bars, plural, in Welland, and that Mr. Conty had mixed drinks, again plural, while the others drank beer. In his statement to the police and in his presentence report, he claims he had two to, at most, three drinks total, with food, and was not impaired.

[22] What makes this aggravating is that due his actions, we will never know the truth about his alcohol consumption and to what extent it was a factor. His decision to leave the scene frustrated any investigation into his alcohol consumption that no doubt would have been undertaken had he remained.

[23] As well, Mr. Conty comes before the court with a not insignificant record. In total he has 14 prior convictions that span a wide range of offences. Six of his convictions are for theft or possession of stolen property. Three convictions are related to drugs, two of which were trafficking related. He has one conviction for failing to comply with a recognizance, and perhaps most related to the current offence, one conviction for dangerous driving. This latter conviction and the impact of his record overall is tempered somewhat by its age; the dangerous driving conviction came in 1985 and he has not had a conviction of any type since 2000, approximately 14 years prior to the commission of this offence.

[24] The age of his record segues neatly into an examination of the mitigating factors present. Mr. Conty, who is currently 50 years of age, grew up in a home that saw him be a witness to domestic violence. He as well, during his formative years, was the victim of physical violence perpetrated by his step-father. He left home at age of 14 and became the victim of a sexual assault at the hands of an adult male. He never completed high school, and by age 16 was living on the streets. It was at this time he began to come into conflict with the law. He was involved in selling drugs and developed substance abuse issues.

[25] He has had three significant relationships in his life producing two children. The oldest, a daughter, is now 24 and he seems to have limited contact with her. His other child is an eight year old son. He and his former common law spouse share custody of him. This child has his own struggles, being diagnosed with ADHD. Mr. Conty continues to be an important and supportive person in his life.

[26] Currently Mr. Conty is not in a relationship and resides with, and enjoys the support of his mother and step-father. As well, he is employed full time, and has been for two years.

[27] Also to his credit Mr. Conty has been able to overcome his substance abuse issues and has remained drug-free for a significant period of time, coinciding with the gap in his criminal record.

[28] Last, there is his guilty plea. Guilty pleas are recognized as a sign of remorse and often a harbinger of positive rehabilitative prospects. In this case though those factors may be tempered somewhat, given Mr. Conty's plea came some 17 months after the offence date, on the eve of trial. As well, comments he made in his statement, the presentence report and submissions, also give me reason to question the sincerity of his remorse.

[29] Mr. Conty stated that just before the accident Ms. Carson had been arguing with Ms. Sullivan over her desire to obtain cocaine. It was this argument and his aversion to drugs, given his past addiction issues that caused him to momentarily shift his focus from his driving, and led to him missing the stop sign and causing the accident. Furthermore he sought to blame Ms. Carson for her injuries, stating she would not have been injured as she was had she wore her seatbelt. Then, finally, in his presentence report, he explains his decision to leave the scene was based partly on the fact others were encouraging him to do so. It is unclear who he claims encouraged him to leave, since a review of the 9-1-1 recording clearly indicates it was neither Mr. Zahourski nor Ms. Carson.

[30] Statements such as these diminish any expression of remorse by the accused and provide a window into his true character.

[31] I have been referred to a number of cases by the Crown and defence supportive of their respective positions. In R. v. Casselman [2014] O.J. No. 1995 the sentence was 12 months. In R. v. Davis [2010] O.J. No. 4742 the sentence was 12 months. In R. v. Folkes 2010 ONCJ 326, [2010] O.J. 3435 the accused was sentenced to 15 months. In R. v. Avery [2011] O.J. No. 2678 a case involving a death, the sentence was 15 months. In R. v. Lapensee 2009 ONCA 646, [2009] O.J. No. 3745 also a case involving a death, the accused received 12 months consecutive to other charges, including impaired driving causing death. In R. v. Doucet [2009] ABCA 416 the accused received a global sentence of 28 months in a case involving a death. In R. v. Gill [2010] BCCA 388, 18 months consecutive to other charges was imposed. In R. v. Gummer [1983] O.J. No. 18 the sentence was 6 months. In R. v. Ramdass [1982] O.J. No. 177 the sentence was 6 months. In R. v. Harrison [2015] B.C.J. No. 1050 the accused received a conditional sentence of 6 months.

[32] In addressing the last case first, that of Harrison, the defence addressed the possibility of a conditional sentence but did not press it forcefully. The real issue is whether a conditional sentence is available for this offence. Section 742.1(e)(i) precludes the imposition of a conditional sentence for any indictable offence where the maximum sentence is 10 years or more and bodily harm resulted.

[33] The issue in cases such as this is whether the bodily harm resulted from the criminal act committed by the accused. If the bodily harm did not result from the criminal act committed by the accused, then a conditional sentence would be a sentencing option. The facts in Harrison are substantially different from this case. In that case a cyclist either darted out in front of the accused and was struck, or, possibly even struck the side of the accused's vehicle. In either scenario the court found the accused was not at fault for the accident that resulted in the bodily harm, which was a significant factor in the court's analysis of whether a conditional sentence was available in the circumstances.

[34] In this case, the fault for the accident that resulted in the bodily harm lies exclusively with Mr. Conty, notwithstanding his attempts to lessen his culpability. As such that aspect is not present here. The real issue is whether the bodily harm could be said to have resulted from the criminal act to which he was found guilty, that being failing to stop at the accident. That issue was not argued fully in this case, and as such I decline to decide the issue. Having said that, I would add that even if a conditional sentence were available, in the circumstances of this case, given the morally bankrupt behaviour displayed by the accused, the applicable sentencing principles could not be achieved by the imposition of a conditional sentence, and I would decline to do so.

[35] What I have gleaned from a review of the above cases is that the range of sentences for an offence such as this is between 6 to 18 months and that the principles of denunciation and deterrence are paramount.

[36] Denunciation and deterrence require the sentence to have a punitive focus as opposed to strictly rehabilitative. The goal of a denunciatory sentence is to express the court's and thereby the community's disapproval for the conduct displayed by the accused. The deterrent aspect is to dissuade like-minded individuals from engaging in similar conduct. The goal of the sentence is to make it clear to others who may find themselves in a similar situation, facing a similar decision to that of the accused that engaging in this type of conduct will come at a steep price.

[37] In this case when arriving at an appropriate sentence I note that Mr. Conty's level of moral blameworthiness is particularly high. In spite of what he says, he was solely responsible for the accident. That Ms. Carson suffered serious, life threatening injuries, that required immediate medical intervention, would have been obvious. It was also obvious that Mr. Zahourski did not know where the accident occurred, and was unable to assist the 9-1-1 operator in directing first responders to the scene. Mr. Conty had been consuming alcohol that night and his actions frustrated any investigation into that aspect of the matter. Leaving as he did in light of these factors displays a level of reprehensible conduct that cries out for a significant sentence.

[38] Based on the foregoing, I agree with the Crown. A significant period of custody is required to meet the sentencing principles as they apply to the particular facts of this case. The sentence as suggested by the defence simply would not reflect the gravity of the offence and Mr. Conty's level of moral blameworthiness.

[39] As such, Mr. Conty will be sentenced to a period of custody of 12 months. A term of probation was requested by the Crown for two years. I was not advised of any particular issue that currently needed to be addressed through counselling so although I will impose the order for two years, it will be non-reporting. The only terms in addition to the statutory terms will be that he is to abstain from communicating with Ms. Carson and Mr. Zahourski in any manner whatsoever, except through counsel or during court proceedings. He will also be prohibited from attending within 100 metres of any place known to him to be their place of residence, employment, schooling or training or any place they are known to be. He will also be prohibited from operating a motor vehicle on any street, road, highway or other public place for three years, and last, he will provide a sample of his DNA for inclusion in the DNA databank. Given the length of the custody and the effect this may have on his employment, I will grant Mr. Conty 18 months to pay any applicable surcharge. That is the sentence.

Dated at Cayuga, Ontario

This 15th day of April, 2016

The Honourable Mr. Justice R.S. Gee