WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 - Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4 (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

Court Information

Ontario Court of Justice

Date: 2018-02-08

Court File No.: Halton 17-2637

Between:

Her Majesty the Queen

— And —

ML

Before: Justice D.A. Harris

Heard on: December 7, 2017 and January 5, 2018

Reasons for Sentence released on: February 8, 2018

Counsel

David King — counsel for the Crown

Elscar Chung — counsel for the accused ML

Decision

HARRIS J.:

[1] Guilty Plea

[1] ML pled guilty to impaired driving causing bodily harm to his 8 year old son CL.

[2] This is an indictable offence.

[3] ML is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for 3 years less credit for pre-sentence custody. He asked that I prohibit him from driving for 5 years. Finally he requested a DNA order.

[5] Counsel for ML suggested that I impose a sentence of imprisonment for two years over and above the pre-sentence custody. He asked that I prohibit him from driving for three years. He left it up to me to determine if it was appropriate for me to make a DNA order.

[6] I note further that a weapons prohibition is mandatory pursuant to section 109 of the Criminal Code.

[7] I find that a sentence of imprisonment for the equivalent of just under 28 months is the appropriate sentence. That should be followed by a driving prohibition for five years.

[8] My reasons for this are set out under the following headings:

1. The fundamental purpose and principles of sentencing,
2. The facts underlying the offence,
3. The impact on the victims,
4. The background of Mr. ML, and
5. Analysis

Fundamental Purpose and Principles of Sentencing

[9] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

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

[17] Section 255.1 of the Criminal Code provides that in cases like this, "evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded 160 milligrams of alcohol in 100 milliliters of blood shall be deemed to be aggravating circumstances".

[18] Section 718.01 provides that "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".

[19] Section 718.2(a)(ii.1) provide that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[20] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[21] The offence had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

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

[23] 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."

[24] 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.

[25] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing 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. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[26] The maximum sentence for impaired driving causing bodily harm is imprisonment for 10 years.

[27] I also note the comments of the appeal courts regarding drinking and driving offences.

[28] As far back as 1985, the Ontario Court of Appeal stated in R. v. McVeigh that:

In my view the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. 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.

[29] Ten years later, in the Supreme Court of Canada decision in R. v. Bernshaw, Cory J. stated that:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[30] In R. v. Biancofiore, Rosenberg J.A. of the Ontario Court of Appeal wrote that courts must take care not to de-stigmatize drinking and driving offences. Denunciation through incarceration would generally avoid this and would guard against law-abiding people regarding such behaviour as a mere "accident" or "error in judgment", rather than the criminal act it was.

[31] I have also considered a number of cases where death was involved. While the length of sentences imposed in those cases is very different from the sentences imposed where bodily harm occurred, the underlying principles are the same.

[32] A very helpful summary of these principles is set out in the reasons for sentence given by Justice Fuerst in R. v. Muzzo, where she wrote:

In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

[33] In other cases, the Ontario Court of Appeal has concluded that, because the offence of impaired driving causing death can be committed in an almost infinite variety of circumstances, there is no identifiable range of sentence that applies to the crime.

[34] That is even truer in cases of impaired driving causing bodily harm where there can be many different degrees of bodily harm.

[35] The Supreme Court of Canada recently cautioned that even where sentencing ranges are identified, they are guidelines and not hard and fast rules.

[36] I must however return to R. v. Muzzo where Justice Fuerst referred to three relatively recent decisions of the Ontario Court of Appeal which she suggested support the proposition that the offence of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character. She then found that it was clear that:

…sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.

[37] I am satisfied that this is equally applicable with respect to the offence of impaired driving causing bodily harm.

[38] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victim, and the background of ML.

The Offence

[39] ML was driving his motor vehicle westbound on Highway 401 just east of Trafalgar Road. His vehicle made contact with the guardrail on the edge of the left shoulder of the highway. It then re-entered the highway, travelled across it and made contact with the guardrail on the edge of the right shoulder. The vehicle finally came to a stop in lane 3 of 3. The vehicle sustained heavy front end damage.

[40] ML and his 8 year old son, who was a passenger in the vehicle, were both taken to Milton General Hospital. The son remained in hospital for a number of days before spending three months in a rehabilitation centre.

[41] Blood taken from ML at the hospital was analyzed at the Centre for Forensic Sciences, where it was determined that his blood alcohol concentration at the time that he was driving was 195 milligrams of alcohol in 100 milliliters of blood.

[42] He admitted that his ability to operate a motor vehicle was impaired by alcohol.

Victim Impact

[43] I received a Victim Impact Statement which provided the following information.

[44] CL had multiple injuries from the accident including a fracture of the cervical spine resulting in a rod and bolts being inserted to stabilize the spine. There was also severe damage to the spinal cord. For a time he was paralyzed from the neck down and was given a grim prognosis. He persevered however and is fully walking, using a walker only in busy crowds. He has regained full function to his left extremities and is at about 65% on the right. He is still on medication for nerve pain. As well he is scheduled for another surgery to further fuse his neck. This surgery is less invasive, has few risks and allows for a one night stay in hospital with a six week recovery time. He will continue to attend physio and occupational therapy sessions weekly during his recovery. Once this surgery is complete he will no longer be able to nod his head up and down, and will have permanent restrictions to certain physical activities. He will also have two scars. One is about six inches long from within his hairline down the centre of the back of his neck. The second surgery will leave an approximate two to three inch scar on the right side of his neck.

[45] He has had many emotional impacts as a result of the accident. His day-to-day life has completely changed as he spent four months in hospital unable to socialize with his own friends, missing out on the first day of school, and unable to start his drumming lessons in September. Currently he is still being homeschooled as he was overwhelmed and unable to complete the physical evaluation with the local LHIN. He is now becoming trusting with more drivers, but still shows signs of anxiety when riding in cars. If there is hard braking he will burst into tears. He attends trauma counselling every Monday to help work through some of his anxiety and emotions.

[46] He has mentioned quite a number of times both at home as well as in counselling that he is afraid to ever be in a car again with ML as he fears that both he and his sister would be hurt next time.

[47] He speaks frequently about how much he misses his Dad.

[48] He has also had behavioural issues that began to surface in mid-September. He has shown multiple angry outbursts, becoming physically abusive. As a result he has been put on a medication that acts as a beta blocker allowing for him to better control his emotions, and to be reasoned with during those situations.

Background of ML

[49] I received a Pre-sentence Report, four reference letters and a letter of apology written by ML. I learned the following information from these sources.

[50] He is 34 years old.

[51] He is the younger of two children born to DL and the only child born to SL. His mother passed away in 2014 from cancer, and his father, a former electrician but now retired, presently resides in the same small community as ML. He and his father have not had contact since the evening of this offence. His father noted he would like to re-establish his relationship with his son.

[52] He was raised in Mississauga. He recalled a "constant tension" in his home due to the negative behaviour of his older half-sister. He and his half-sister have had no contact for the past number of years.

[53] He participated in organized sports until high school, and remembers his parents both being involved in his development and extra-curricular activities. His father recalled his son as a bright, "good" child who developed in an age appropriate manner, aside from being bored in school until they moved him into a French Immersion program.

[54] He attended elementary and two different high schools in Mississauga. His grades were always good but the first high school "recommended" after he completed grade 11 that he should attend another school to finish off his remaining credits. This "request" was due to fights he was involved in at school.

[55] Following high school, he attended the University of Toronto, graduating with a BA in History and English in 2005. He met his current spouse while still in university, and began working fulltime following university. They dated until he finished his degree, and married in 2005. They bought their first house and moved to Milton in 2008. They had their first child in 2007, and their son CL, who was the victim of this offence, in 2009.

[56] ML ''walked away" from the negative peer group he had been involved with in high school and early university around the time he met his wife, and for the last number of years has been focused on his career and family.

[57] He worked part-time while in school at a local restaurant and home renovation store. Following university, he took a position with a major bank at one of their call centres, where he worked for three years before being offered a position as an account manager. In 2011 he left the bank for a position at a competitor bank as an options trader. In 2014 he moved to a securities company as they offered significantly better pay, and worked there for three years. He was at this bank until one month before committing this offence, when he accepted a position as a compliance officer in downtown Toronto. He described this as his "dream job". He lost this position there after being charged with this offence.

[58] ML experimented with marijuana throughout high school, and in university experimented a few times with cocaine. Once he entered the workforce, he quit using both.

[59] Alcohol, however, has been a significant area of concern for him since he first began consuming at age 13. He describes his consumption of both beer and hard liquor as being out of control throughout his teens and early twenties. He recalled being hospitalized in his early teens for alcohol poisoning. His father also stated that he and his former wife were called many times to come and pick their son up after he was found highly intoxicated in public places.

[60] His spouse did not notice that he had a significant problem with alcohol until they were expecting their first child. She recalled an incident when he was painting the baby's room while she was in the hospital, and upon coming home, realized the room had to be repainted as he had painted while intoxicated and "made a huge mess of it". Once, he passed out in the stairwell of their condo building. She found "stashed empty alcohol bottles" behind walls in the storage area of their condo. They separated for a brief time, during which time he quit drinking, and she thought he had put the problem behind him.

[61] Following a drinking / driving charge in 2010, he finally "woke up" and realized this was an area of his life that he needed to address. He attended a residential substance abuse treatment center (Homewood) and began attending Alcoholics Anonymous regularly. He attended AA two to three times a week, over the past seven years. He has "slipped" three times since becoming abstinent seven years ago. Two "slips" occurred during the month before the evening of this offence and were ones that he believed he had caught immediately and stopped. He claims the evening of this offence was his third "slip", and he has no recollection of consuming more than one drink that evening. He recalls he had taken his son to his first music concert at the Air Canada Centre, but has no memory of the drive home or of the accident.

[62] His spouse offered a similar accounting of his alcohol abuse and slips, and notes that their son has no recollection of his father drinking the evening of the concert.

[63] In 2015, wanting a bigger home for their growing family, ML and his spouse moved to Ayr, where they were living at the time of the accident this past summer.

[64] His spouse states that prior to this incident, the subject was a "model dad", coaching their daughter's soccer team, taking their children camping, and involved in community events in their small town. He attended AA regularly since his DUI charge in 2010, and was focused on his new job in securities downtown Toronto. She stated, "the accident changed everything", and that while she remains supportive of her husband, she does not see their relationship continuing.

[65] His family has felt the impact of the loss of his employment, as he was the main breadwinner in the family. His spouse does not have benefits with her work, and with ML out of work, they must pay personally for all their son's many prescriptions and the care he needs.

[66] In 2011, ML was convicted of impaired driving. This offence also involved a single car motor vehicle collision. In that case, he struck a lamp-post with his car.

[67] Following this, he reported on a one year probation order. He attended and completed residential treatment, and attended AA regularly afterwards. He reported as directed and was deemed a suitable candidate for future community supervision. He told his supervising probation officer he "cannot drink because he does not know when to stop". Following the residential program and while on probation, he maintained sobriety and completed a follow up/relapse prevention program with ADAPT.

[68] There are no diagnosed mental health issues.

[69] He appears genuinely remorseful for his decision to consume alcohol and drive the evening of this offence. He recognizes the impact on his family, most of all his young son, who still lives with severe physical injuries in the accident but also on his wife and their daughter.

Analysis

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

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[71] That is certainly the case here even though the two sides are only 8 or 9 months apart in their respective submissions.

[72] Further, no sentence can adequately put a value on someone's serious injuries. It certainly cannot undo the harm done to CL.

[73] Finally, as Justice Fuerst stated in R. v. Muzzo, supra:

Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada, "a highly individualized exercise that goes beyond a purely mathematical calculation." The gravity of the offence, the offender's degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.

[74] The sentencing principles of denunciation and deterrence are paramount here. Years of public education programs and previous decisions by the court failed to bring home to ML the message that we, as a society, will not tolerate drinking and driving. The sentence that I impose must make that message clear to him and to anyone else who might even consider committing such an offence in the future.

[75] I must not however lose sight of the possibility of rehabilitation.

[76] I have considered both the mitigating and the aggravating factors present.

[77] The aggravating factors arise out of the offence itself.

[78] Mr. ML chose to drink and then to drive. He did not have to drink that night. Having done so, he could, and should have found some alternative to driving. Instead, he chose to drive. He chose to drive with his son in the car.

[79] His blood alcohol concentration at the time was 195 milligrams of alcohol in 100 milliliters of blood.

[80] He had a previous conviction for drinking and driving. That earlier incident also resulted in a single motor vehicle collision. ML should have been even more aware than others of the risks inherent in drinking and driving.

[81] Finally, the impact on his son has been devastating. He has yet to recover fully from his injuries. He will need years to get over this, if he ever does. The impact on the boy's mother has also been significant.

[82] There are also a number of mitigating factors here.

[83] ML pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for his son or anyone else to relive the events of that night while testifying in court.

[84] ML has expressed extreme remorse and written a very moving letter of apology.

[85] When not drinking, he is otherwise a person of good character.

[86] He has already suffered a number of other consequences.

[87] He lost his job.

[88] He may have lost his marriage.

[89] He feels tremendous guilt for the harm he did to his son and he will have to live with that guilt for many years, if not for the rest of his life.

[90] This will be his first sentence of imprisonment.

Sentence

[91] For the above reasons, I sentence ML to a sentence of time served, being 73 days of pre-sentence custody credited as 109 days, plus further imprisonment in the penitentiary for two years.

[92] I also make the following ancillary orders.

[93] ML will be prohibited from operating a motor vehicle on any street, road highway or other public place for a period of five years following his release from custody.

[94] Pursuant to section 109 of the Criminal Code, ML will be prohibited from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 10 years.

[95] This is a secondary designated offence. I am satisfied that it is appropriate that I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from ML of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[96] ML will have six months following his release to pay the victim fine surcharge.

Released: February 8, 2018

Signed: Justice D.A. Harris