Court Information

Ontario Court of Justice

Date: February 20, 2018

Court File No.: Central East - Newmarket 4911-998-17-00618

Parties

Between:

Her Majesty the Queen

— and —

Ramin Tahmasebi

Before the Court

Justice: P.N. Bourque

Heard on: November 6, 7, 8, 2017 and January 30, 2018

Reasons for Sentence released on: February 20, 2018

Counsel

For the Crown: B. McCallion

For the Accused: L. Shemesh

Decision

BOURQUE J.:

Overview

[1] After a trial, I found the defendant guilty of the offences of impaired (by drug) driving causing bodily harm, s. 255(2) Criminal Code of Canada and fail to comply with a demand for a urine sample, s. 254(5) Criminal Code of Canada.

[2] The defendant was found stopped in a driveway (not his own) of a residence. When the police arrived he was woken up and showed signs of impairment. An officer moved behind his vehicle to get into the police cruiser and the defendant's vehicle (with the defendant in the driver's seat) backed up (albeit slowly) and pushed the officer into his own vehicle. The defendant was taken out of the car, arrested and at the detachment was interviewed by a drug recognition officer who was of the opinion he was under the effects of two drugs. The defendant refused a lawful demand to provide a sample of his urine.

[3] The officer's injury was to his right knee. It initially caused him pain at the scene. The officer stated that there was damage to the meniscus of his knee and he also suffered bruising. He was on physiotherapy for several months. He stated that he did not suffer any permanent injury. When he testified in court he did not seem to be suffering any ill effects. He did not present a victim impact statement.

[4] A presentence report was presented. The defendant is 53 years old. He immigrated to Canada from Iran in 1988 and became a Canadian citizen. He is married without children. He is from a large family and he is very close to them.

[5] He owns a business which repairs services and sells vehicles. He earns between $80,000 and $100,000 per year.

[6] He has a criminal record with one conviction for a refuse breath sample on October 27, 1998. The Crown did not file a notice seeking an increased penalty.

Position of the Parties

[7] The Crown is seeking a sentence of imprisonment of 7 months, and a 3 year licence prohibition.

[8] The defendant is seeking a suspended sentence with a fine and an increased licence suspension.

The Law

[9] In cases like R. v. Mitchell, 2016 ONCJ 731, and others, there is a consensus that for cases of impaired driving causing death, the principal consideration is denunciation and deterrence, and the severity of sentences has increased. From R. v. McVeigh, through R. v. Junkert, 2010 ONCA 549, up to R. v. Muzzo, 2016 ONSC 2068, there is increasing awareness that sentences in the high single digits to low double digits are the norm when death is caused by the crime of impaired driving.

[10] It is safe to say, that the causing of bodily harm, while much less severe than death, would lead to the same principals being applied, albeit with lower sentences. Where there is a greater discrepancy in sentencing for the imposition of bodily harm, it is most often attributable to the severity of the injury and the degree reckless driving. The Ontario Court of Appeal has not set out in any specific range for the offence of impaired driving causing bodily harm. The cases show a great variety in sentencing. The imposition of fines, probation is not uncommon (R. v. Smith, 2015 ONCJ 11, R. v. Rowan, 2004 O.J. No. 3719). Jail sentences of 12 or more months are also often imposed (R. v. Mitchell – 16 months. R. v. Thompson, 2011 O.J. No. 369 – 2 years less a day).

[11] As stated by Valincourt, J. in R. v. Rooplal, 2009 O.J. No. 5493:

[31] Sentencing decisions are useful in the sense that they provide a broad landscape of factual situations and sentencing principles and how other courts have approached the challenging task of arriving at the appropriate sentence for a specific individual. However, each case is unique and the sentence to be imposed must balance the competing interests that are in play.

[12] Finally, there is an increasing awareness of the continued prevalence of impaired driving and the need to take steps to deter persons who would get behind the wheel of a car when they are significantly impaired. Justice MacKinnon of the Ontario Court of Appeal (R. v. McVeigh) noted over 30 years ago "…General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving".

Aggravating and Mitigating Factors

[13] I find the following are aggravating factors:

(i) The level of impairment was so significant that the defendant was totally disoriented and did not know that he had stopped his vehicle in a driveway some distance from his home;

(ii) The impairment led the defendant to allow his vehicle to move backwards without taking any notice of what was behind him;

(iii) The lack of awareness caused bodily harm to a police officer who was doing his duty;

(iv) The defendant compounded his crime by refusing to provide a sample of his urine when demanded by the drug recognition officer; and,

(v) The defendant has a previous (albeit dated) conviction for failure to provide a sample of his breath after a proper demand.

[14] I find the following are mitigating factors:

(i) The degree of bodily injury while more than trifling or transient, has not led to any permanent injury or any need for future medical interventions;

(ii) The driving did not involve high speeds or was not otherwise reckless, other than getting behind the wheel in his impaired condition; and,

(iii) Like most other persons in this situation the defendant leads an otherwise exemplary life (as revealed in his pre-sentence report).

Conclusion

[15] Upon a review of all the factors in this matter, I have come to the conclusion that this case calls for an imposition of a custodial sentence.

[16] Of all of the cases that I have reviewed, the decision in R. v. Rooplal, is most similar to this case before me.

[17] For the offence of causing bodily harm while impaired, I sentence the defendant to 60 days in custody. For the offence of failure to provide a urine sample, I sentence the defendant to 30 days in custody, the sentences to run consecutively.

[18] I also make an order that the defendant is prohibited from operating a motor vehicle anywhere in Canada for a period of 2 years.

Released: February 20, 2018

Signed: Justice P.N. Bourque