ONTARIO COURT OF JUSTICE

Date: September 8, 2020

Central East Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAMUEL HUNT

Before: Justice F. Javed

Sentencing submissions heard on: August 12, 2020

Reasons for Sentence released on: September 8, 2020

Counsel:

• D. Slessor, for the Crown
• S. Gill, for the defendant

A. OVERVIEW

[1] Samuel Hunt ("Mr. Hunt") stands convicted of the offences of having care or control of a motor vehicle while his blood alcohol concentration ("BAC") exceeded 80mgs of alcohol in 100mls of blood contrary to s.253(1)(a) of the Criminal Code and one count of impaired operation of a motor vehicle causing bodily harm, contrary to s.255(2) of the Criminal Code, in respect of offences that were committed on September 19, 2017.

[2] The court found Mr. Hunt guilty after a trial in which Mr. Hunt argued his rights under the Charter of Rights and Freedoms ("Charter") had been violated necessitating an exclusion of his breath samples under s.24(2) and/or a stay of proceedings under s.24(1) of the Charter. Specifically, Mr. Hunt argued that the police had no grounds to administer a breath demand and his blood sample taken by a nurse was unlawfully obtained. Further, he argued that the police lost the evidence of his blood sample which was recorded in hospital records, which were then obtained pursuant to a production order and used to form an opinion that his BAC exceeded the legal limit. Finally, he argued that the delay of almost 13 months in being charged with the offences was prejudicial and should result in the prosecution being terminated. The Charter applications were largely dismissed, with the exception of a notional violation of his right to counsel under s.10(b) of the Charter when the police provided untimely advice in the hospital in a state when he could not understand them. The court ruled that Mr. Hunt did not meet his onus under s.24(2) to exclude the evidence due to this technical breach because his hospital records were independent of any state action. The request for a stay of proceedings was also dismissed because Mr. Hunt's fair trial rights were not impacted nor prejudiced. The court rendered a comprehensive ruling which was expected to be delivered on April 6, 2020, but was delayed as courts in Ontario shuttered due to the COVID-19 pandemic. The court communicated with the parties in May 2020 requesting their position on whether an appearance for judgment could proceed remotely. The parties jointly agreed to receive the court's ruling remotely, which was rendered on June 2, 2020.

[3] Given the nature of the charges and the Crown's election to proceed by indictment, the court ordered that the parties attend in person for sentencing submissions. This was completed on August 12, 2020 after the court had reopened. The victim, Kathey Herbert, participated remotely by audio-conference. The sentencing record was voluminous and given the substantial gulf in the respective sentencing positions, the court reserved its sentencing ruling to September 8, 2020.

[4] These are the court's reasons for sentence.

B. THE FACTUAL BACKGROUND

[5] The factual circumstances were reviewed in detail in the court's Charter and trial ruling at paragraphs 16-26. Mr. Hunt only testified on the Charter voir dire and did not testify on the trial issues. Nor did he testify at the sentencing hearing. The court made some credibility findings on the Charter voir dire which have not been considered in this ruling. That said, counsel did agree to have the evidence of the Crown's witnesses apply to both proceedings. I have kept this in mind in terms of the findings that are important for purposes of crafting a fit sentence. For greater context, these reasons should be read in conjunction with the court's Charter and trial ruling. For purposes of imposing sentence, the following are the court's core findings:

• A collision occurred in Ajax on September 19, 2017 involving Mr. Hunt as the operator of a motor vehicle and the victims, Kathey and Murray Herbert. Ms. Kathey Herbert was the operator of their new motor vehicle, a Honda Civic with her husband as the passenger. Both the Herberts are elderly individuals;

• The motor vehicle collision occurred on Bayly St. in an area where the lanes had been reduced to one lane in each direction due to construction. The collision involved "head-on" impact with Ms. Herbert attempting to swerve but slamming into a concrete block as she could not avoid Mr. Hunt's vehicle;

• As a result of the collision, both Mr. and Mrs. Herbert suffered "bodily harm" as Mrs. Herbert broke both hands requiring a soft cast for up to 9 weeks and a fractured back requiring extensive physiotherapy;

• There is no evidence that Mr. Hunt also suffered any injuries as he did not testify on the trial, however, the parties filed medical evidence as part of sentencing which revealed he "blacked out";

• Mr. Hunt was investigated at the roadside and was in and out of consciousness. A sample of Mr. Hunt's blood taken by the hospital generated an opinion from a witness from the Centre of Forensic Sciences, which the court ruled as admissible, revealing that the time of the collision was at or between 10:25 pm to 10:35 pm and Mr. Hunt's blood sample had a serum alcohol concentration of 36.9mmo/L, resulting in a BAC of 147 to 192mgs of alcohol in 100mls of blood. For purposes of sentencing, I am prepared to assume the lowest BAC of 147mgs of alcohol in 100mls of blood;

• Mr. Hunt was not immediately charged with the above offences. After an unusually slow but not unfair police investigation, he was charged with the offences after 13 months; and

• The court found that the police violated his right to counsel under s.10(b) of the Charter by not advising him of his rights in a manner that he could understand them at the hospital as he was still in and out of consciousness. However, Mr. Hunt never invoked his right to counsel even when he was lucid and no state sponsored evidence was collected from him as his blood was taken solely for medical reasons.

[6] The parties agreed that the conviction for the exceed 80mgs counts should be stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. I will direct the clerk to make this endorsement on the information. This leaves the court to sentence Mr. Hunt for the offence of impaired operation causing bodily harm.

C. THE SENTENCING RECORD

[7] Given the unusual way the sentencing hearing unfolded during the COVID-19 pandemic, I will itemize the record filed by the parties to honor the open court principle:

Exhibit 1: Victim impact statement of Kathey Herbert

Exhibit 2: Victim impact statement of Murray Herbert

Exhibit 3: Response to COVID-19 Information Note (Authored by Michael Walker, Strategic Advisor, Institutional Services Division, Assistant Deputy Minister's Office, August 11, 2020)

Exhibit 4: Affidavit of Dr. Aaron Orkin, Family Physician and Epidemiologist, Toronto (with Exhibits)

Exhibit 5: Character References

• (i) Jeffrey Canton
• (ii) Jonathan Hunt
• (iii) Peter Barrett

Exhibit 6: Forensic Psychiatric Assessment, prepared by Dr. Giovana De Amorim Levin.

[8] The court is grateful for the assistance of counsel who both filed an overview of their sentencing submissions in writing, with Mr. Slessor relying on a sentencing chart. Mr. Gill filed a number of authorities as well. I have carefully reviewed all of the authorities relied on by the parties and my failure to mention them in these reasons is not a reflection they were ignored.

D. THE POSITIONS OF THE PARTIES

[9] Mr. Slessor argues that drinking and driving remains a scourge in our community and Mr. Hunt's actions in driving while intoxicated demand a jail sentence of 12 months followed by a period of probation for 12 months with a term for alcohol counselling. Further, the court should impose a 3-year driving prohibition.

[10] Mr. Gill agrees that deterrence and denunciation remain the overarching sentencing principles but says the advent of the COVID-19 pandemic requires the court to impose an exceptional sentence. He says the court should impose a fine of $1500 with a probation order for 12-18 months followed with a 3-year driving prohibition. Alternatively, if the court sees fit to impose a custodial sentence, the court should impose a jail sentence in the community as a conditional sentence order under s.742.1 or at worst, a 90-day intermittent jail sentence which Mr. Hunt could serve on the weekends. In addition to the COVID-19 pandemic, Mr. Gill points to Mr. Hunt's status as a first offender with a mild intellectual disability as factors that militate in favor of an exceptional sentence.

E. CIRCUMSTANCES OF THE OFFENDER

[11] The extent of Mr. Hunt's background is gleaned from a combination of Mr. Gill's submissions, the psychiatric assessment authored by Dr. Levin and the character references filed by friends and families. Mr. Hunt also addressed the court, apologizing for his actions and pledging to "better himself".

[12] Mr. Hunt is 31 years old. Shortly after the incident in 2017, he commenced a relationship with Jeffrey Canton who prepared a character reference. Mr. Canton wrote that Mr. Hunt was extremely remorseful for his actions and has given up alcohol consumption. He describes him as a "loving partner" and a "wonderful uncle" to his family members. He has changed his life around for the better.

[13] Mr. Hunt was sporadically employed as a roofer for two years but has limited employment due to a combination of his intellectual disability and the COVID-19 pandemic. He is currently unemployed and receiving employment insurance.

[14] He is the youngest of six children and grew up in a pro-social household. He remains close with his siblings and parents. Indeed, his brother Jonathan Hunt provided a letter explaining that his brother suffers from a "considerable deficit of life skills and understanding". He stated that Mr. Hunt's life prospects are limited, largely caused by his intellectual disability which has resulted in limited work experience, a poor standard of living and bleak future prospects. He urged the court to take a compassionate approach to his brother who is now in a loving and supportive relationship.

[15] The above sentiments are also shared by his brother in law, Peter Barrett who authored a letter. Mr. Barrett highlighted additional details of Mr. Hunt's intellectual disability explaining that in 2015, Mr. Hunt moved in with Mr. Barrett's family and was notably depressed and suffered from anxiety. He also documented a violent and traumatic event which Mr. Hunt did not disclose to his loved ones which left him vulnerable and depressed. After a bout with homelessness, he began to slowly recover. He felt that Mr. Hunt is easily manipulated and suggested that his alcohol consumption on the night of the event was unusual and he may have been manipulated to drive while intoxicated by alcohol. He too agrees that a stable environment will benefit Mr. Hunt and a jail term of any variety will only be a set back.

[16] Dr. Levin's forensic psychiatric assessment indicated that in 2008, Mr. Hunt was identified as having a "mild intellectual disability" which required several academic accommodations. With appropriate supports, he was able to complete high school and was accepted into a college in Sudbury. He started a Personal Support Worker course but didn't finish as it wasn't right for him. He then pursued employment in the construction and roofing industries, leading to his current unemployment. Dr. Levin noted that Mr. Hunt does not have a history of any psychiatric or psychological disorders, which she said might be common for offenders who might pose a risk to re-offend. Instead, she confirmed a diagnosis of alcohol use disorder in early remission (between 3 and 12 months). It is important that this was based on Mr. Hunt's self-report, not through medically performed tests.

[17] With respect to the intellectual disability, Dr. Levin noted that Mr. Hunt presents with having some difficulty in processing information quickly and understanding new information. As a result, she opines he is easily manipulated and easily influenced by negative peer groups. In short, she opined that his mild disability makes him vulnerable to act in certain ways, something he now has better insight of because of his positive peer group. However, she stopped short of opining that his vulnerability caused him to choose to drink and drive.

[18] Having considered the record as a whole, there is simply no evidence before me that Mr. Hunt committed the offences and decided to drink and drive because of his intellectual disability. In other words, there is no causal link between his poor decision making and the commission of the offence which would otherwise reduce his moral blameworthiness and reduce the sentence. While it assists in providing important context, it does not explain the commission of the offence. That said, Mr. Hunt's mild intellectual disability remains a relevant factor to consider as part of a proportional sentence because it is unique to him: R. v. Davies, 2017 ONCA 467 at para. 5. Further, I accept the sentiments of his family and friends about his positive character which will assist with his rehabilitative efforts, but in cases of drinking and driving, it is not uncommon to sentence offenders who present with positive backgrounds. A court must be cautious before relying on sentencing recommendations from third parties. It is understandable that loved ones would be advocates for Mr. Hunt and urge the court to not separate him from the community. Just like I would have to be careful if the victims were advocating for a particular sentence, my task is to impose a fit and proportionate sentence balancing a number of sentencing principles, not sympathy or prejudice.

[19] While Mr. Gill did not point me to any specific cases dealing with Mr. Hunt's intellectual disability and how it should factor into the sentencing calculus, I have reviewed some on my own. In R. v. Beach, [2019] O.J. No. 1911 (Ont. Sup. Ct.), Justice Patterson observed at paragraph 22:

Cognitive defects may result in the accused being unable to comprehend the causal link between punishment and the crime for which he has been convicted and in such a case, it is important that both general deterrence and denunciation be greatly mitigated: see R. v. Ramsay, 2012 ABCA 257, at para 24. C.C. Ruby, Sentencing (6th ed.)(Markham: Buttersworth, 2004) at paras. 5.246 and 5.256 was referenced by the court in R. v. Belcourt, 2010 ABCA 319, at para. 8 that provides:

'That a sentence can be reduced on psychiatric grounds in two instances: (1) where the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or other penalty would be disproportionately severe because of the offender's mental illness.'

[20] As noted above, I am not satisfied that the evidence establishes that Mr. Hunt's mild intellectual disability contributed to or caused him to choose to drink and drive. I simply don't know why he made the poor choice to drink and drive causing a serious collision. Unfortunately, many people in our community continue to choose to drink and drive despite the repeated admonition that driving drunk is both illegal and unsafe. Courts have reminded that drinking and driving is a crime that is pervasive and often committed by law abiding and pro-social people. There is nothing to suggest that Mr. Hunt was forced or manipulated into driving while intoxicated. This factor does not diminish his moral blameworthiness.

[21] Having said this, I am prepared to take into account Mr. Hunt's mild intellectual disability when considering if a particular penalty would have a disproportionate impact on him. I will do so in the context of considering the COVID-19 pandemic as a collateral consequence on sentence.

F. THE VICTIMS

[22] Both Mr. and Mrs. Herbert filed victim impact statements. Neither read them into the record but they have been carefully reviewed and considered. Kathey Herbert was most impacted by the trauma of the offences. She noted that the impact of the collision caused her to break bones in both hands and a fractured vertebra in her lower back. She wore a soft cast for 2 weeks and replaced them with a hard cast. Her right hand healed after 6-8 weeks but her left hand has not fully healed. It remains very weak. She advised that she has difficulty twisting, pulling and turning things. A specialist told her that she would have permanent damage to her "scissor/claw-like hand". She continues to have limited use of her hands and needs the intervention of a physiotherapist. More tragically, the impact of the injuries has resulted in her being unable to fully engage with her grandchildren, pursue routine leisure activities, fitness activities and intimacy with her husband. None of this evidence was challenged. I find that the offence had a traumatic physical and psychological toll on her.

[23] Murray Herbert also provided a victim impact statement. He candidly acknowledged that while he didn't suffer the same extent of physical pain as suffered by his spouse, his pain was more emotional. He had some bruising, soreness and swelling which eventually abated but the emotional toll of the night and its impact on his family is lasting. He is worried about the long-term impact of the injuries on his spouse and himself as both are aging. He remains anxious to drive.

[24] In my view, there is no doubt that Mr. Hunt's actions left a lasting physical and psychological toll on the Herberts and their extended family. Given their old age and condition, it is hard to predict what the overall impact will be, but it will be profound. They cannot simply heal from the physical injuries and move on. The freedom associated with driving is often a life-line for seniors. This joy has been shattered by Mr. Hunt's actions. A routine activity like driving is now an anxious one. The victim impact is an important aggravating factor in this case.

G. THE LEGAL PRINCIPLES

General Principles

[11] The purpose of sentencing an offender is set out in s. 718 to 718.2 of the Criminal Code. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to victims, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the victims and the community.

[12] Section 718.1 provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." See R. v. Priest, [1996] O.J. No. 3369 (C.A.), at para. 26.

[13] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered. See R. v. Ipeelee, 2012 SCC 13 at para. 75.

[14] Mr. Gill submits that a proportionate sentence in the circumstances of this case requires the court to depart from a number of cases in Ontario where custodial sentences have been imposed for the offence of impaired driving causing bodily harm – because of the COVID-19 virus. He relies on the decision of Justice Pomerance in R. v. Hearns, [2020] ONSC 2365 in which her honour acknowledged the pandemic and its impact on sentencing principles, including softening the requirement of parity with precedent. Mr. Gill says "now is not the time to blindly follow precedents". He says the COVID-19 virus is a problem in congregate settings, like institutions and the courts need to minimize the potential impact of the virus as best as we can, which in this case means crafting a non-custodial sentence or something closely akin to one.

[15] In my view, Mr. Gill has misconceived the reach of the comments of Pomerance J. in Hearns. I agree with the Crown's overall submission that the court should consider the impact of the COVID-19 pandemic when crafting a fit sentence for Mr. Hunt but this should be done using the pandemic as a collateral consequence based on the record before me. I will discuss this in greater detail below but do not want to leave this discussion about general principles before first addressing Mr. Gill's submission about parity and proportionality.

[16] Courts have long discussed the principles of proportionality and parity and how they should operate in crafting a fit sentence. Recently, the Supreme Court returned to this discussion in R. v. Friesen, 2020 SCC 9, [2019] SCJ No. 100. Chief Justice Wagner, supported in his reasons by Justice Rowe, observed the following at paragraphs 31-33:

31 Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2(b) of the Criminal Code.

32 Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 78-79).

33 In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality

[17] In my view, Justice Pomerance in Hearns was essentially making the same point as the Supreme Court in Friesen, namely that sentencing is inherently an individualized process and calls for sentencing judges to focus on case specific proportionality as opposed to blindly following other cases. Justice Pomerance added the important observation that the COVID-19 pandemic may also impact on the perception of the fitness of the sentence which includes looking not only at the length of the sentence but also the conditions under which it is served. At paragraph 17, she added that this may require the court to depart from the usual range of sentence: Lacasse, at para. 58. Further, she also made an important observation at paragraph 19, which is relevant to the circumstances of this case, being that extraneous circumstances, such as state misconduct which falls short of a Charter violation could also operate to impact the fitness of a sentence as a collateral consequence: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. She added that the circumstances of the pandemic could operate to impact the conditions in which a sentence is served even though there is nobody to blame for the pandemic. Here, while the cloud of the COVID-19 pandemic continues to loom, the court also found a notional s.10(b) violation in a case that has weighed heavily on the minds of Mr. Hunt, the victims and the community for far too long even though it did not translate into a Charter violation. All of these are unique factors to Mr. Hunt's case and it would be an error to ignore them when fashioning a proportionate and fit sentence.

[18] It is also important to observe that Hearns was decided in the context of a case in which counsel presented a joint submission on sentence where the offender was already in custody. Mr. Hunt is not in this position. Pomerance J. offered a caveat to her analysis which in my opinion, effectively captures Mr. Slessor's response to Mr. Gill's argument. At paragraph 23, she held:

Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

The Offence of Impaired Driving Causing Bodily Harm

[19] With the above backdrop in mind, I will start by considering the offence of impaired driving causing bodily harm. Regrettably, there is no shortage of cases in Ontario that discusses the perils of drinking and driving and the carnage it causes to communities. In R. v. Clouthier, 2016 ONCA 197 at para. 54, the Court of Appeal said:

54 The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation: R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at paras. 42 and 47; R. v. Biancofiore (1997), 35 O.R. (3d) 782 (C.A.), at pp. 790-92. As a general rule, custodial sentences are required where bodily harm is caused: Biancofiore, at p. 791

[20] Mr. Gill did not cite Clouthier which is binding on me and must guide my analysis. The Court of Appeal has provided clear direction to sentencing courts that a non-custodial sentence in a case involving an alcohol-driving offence which results in bodily harm would be a rare exception, not the norm. In Clouthier, the offender was convicted of similar offences as Mr. Hunt as well as failing to stop. The trial judge chained two intermittent sentences and imposed a 5 month jail sentence, which the Court of Appeal held was in error. On appeal, the court imposed an 11 month sentence for the impaired driving causing bodily harm count followed by a 4 month consecutive jail sentence for failing to stop, for a global 15 month jail sentence. Mr. Clouthier was involved in multiple collisions and attempted to flee. His BAC was between 100 and 150, thus less than Mr. Hunt. Unlike Mr. Hunt, he pled guilty. The Court of Appeal held that the "appropriate range varies significantly". At paragraph 56, Watt J.A. wrote "[F]or our purposes, it is enough to say that within that range are sentences in the mid to upper reformatory and lower end penitentiary range". These comments were premised on a "myriad" of factors including the positions of the parties, the rehabilitative efforts of the defendant during his appeal and the impact of re-imprisoning him after he had served his carceral sentence. Again, those factors were unique to Mr. Clouthier's case resulting in an individualized sentence.

Aggravating and Mitigating Factors

[21] Turning next to the aggravating and mitigating factors in this case. The aggravating factors in this case are:

(i) Mr. Hunt chose to drive in the wrong direction in a construction zone in an urban area. By doing so, he failed to take extra care and caution;

(ii) Mr. Hunt's BAC was in the range of 147mgs of alcohol in 100mls of blood. While these BAC readings are not statutorily aggravating, they represent a significant departure from the legal limit of 80mgs of alcohol in 100mls of blood; and

(iii) The impact of Mr. Hunt's offences on the Herberts is profound both physically and psychologically. This is important because there was nothing that Ms. Herbert could have done even if she wanted to, to mitigate the impact of the head-on collision. This factor speaks to the extent of Mr. Hunt's moral blameworthiness. It also speaks to the seriousness of the offence and the need to craft a sentence that responds to this conduct. Of course, if the injuries in this case were minimal, it would impact on the fitness of the case.

[22] The mitigating factors in this case are:

(i) Mr. Hunt is a first offender. While not youthful, at 31 years of age, I do take into account his mild intellectual disability as reducing his cognitive age. Either way, this triggers the principle of restraint;

(ii) Mr. Hunt does not have a prior criminal record nor any pre-existing issues with poor driving or alcoholism that puts him at an elevated risk to reoffend; and

(iii) Mr. Hunt is genuinely remorseful. I accept his comments of contrition to the court and to Dr. Levin. Indeed, even during the roadside investigation, he kept apologizing to the police. This shows some insight into his conduct and also bodes well for his rehabilitation prospects.

[23] Mr. Gill also submitted that Mr. Hunt's "mental health concerns" are a mitigating factor on sentence. As noted above, I am not persuaded that his mild intellectual disability played a causal role in committing the offences. I do not view this as mitigating given this record, but as I will explain below, I will take it into account as a collateral consequence of sentence.

Collateral Consequences & Impact of COVID-19

[24] A proportionate sentence may require an examination of the collateral consequences that may arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47. A collateral consequence is not necessarily aggravating or mitigating within the meaning of s.718.2(a) of the Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender. Collateral consequences are integrally connected to the goal of an individualized and proportionate sentence because the focus shifts to concerns about whether the impact of the sentence would have a more significant impact on the offender because of the offender's circumstances: Suter, at para. 48. These consequences "cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender": Suter at para. 56.

[24] In this case, an important collateral consequence that will flow from any jail sentence if imposed is the impact of COVID-19 on Mr. Hunt. Mr. Gill submits that the COVID-19 pandemic compels the court to impose an exceptional sentence. He pointed to the affidavit of Dr. Orkin to support his argument relating to the elevated risk of contracting the COVID-19 virus in congregate settings such as an institution and Dr. Orkin's opinion that 99% of the public remains susceptible to the virus and it is difficult, if not impossible to control the spread of the virus in an institutional setting. He takes the view that "decongregation" or stated differently, avoiding people in congregate settings, is the best method to reduce the spread of the virus. The clear implication is not placing people in custody.

[25] In response to this argument, Mr. Slessor filed an updated Information Note from the Ministry of Solicitor General dated August 11, 2020. I have reviewed this material carefully. It details a number of actions taken by the government to stop transmission of the COVID-19 virus in institutions. Of importance to this case, the report noted that as of August 10, 2020, there were two cases of inmates testing positive in institutions in Ontario and no cases of staff testing positive in some institutions. Mr. Slessor argued that the court can and should take the COVID-19 virus as a collateral consequence of sentence but there is no specific evidence before me that it will have a disproportionate impact on Mr. Hunt. He says this does not justify a non-custodial or exceptionally low jail sentence.

[26] Many courts in Ontario have recognized the impact of the COVID-19 virus in society. In R. v. Morgan, 2020 ONCA 279, the court held at para. 8: "[W]e do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission." Pomerance J. in Hearns made the point at paragraph 14, which appears to be supported by the affidavit of Dr. Orkin that social distancing is challenging in prisons, leaving inmates at greater risk of infection.

[27] While there appears to be consensus in Ontario about the general impact of the COVID-19 virus in our community, there is less judicial consensus about the application of this factor in crafting an appropriate sentence. Some courts have insisted on case specific evidence of the impact of the virus on the accused while others have not. Even where specific evidence is missing, the Court of Appeal has held that where there is evidence of particular vulnerabilities of an accused person that would make proposed incarceration more difficult, this evidence should be assessed by the sentencing court: R. v. Lariviere, [2020] O.J. No. 2264 (C.A.) at para. 17. In this case, the defence did not call any specific evidence related to Mr. Hunt's circumstances that would make a jail sentence more harsh for him apart from the toll it would take on his mental health. The defence did file some medical evidence which reveals Mr. Hunt with a mild intellectual disability and positive family supports but nothing to suggest that there are specific medical issues that would elevate his risk of contracting the COVID-19 virus or impact his treatment and recovery if he did contract the virus while in custody.

[28] Mr. Slessor relied on the decision of Justice Heeney in R. v. Tasevski, 2020 ONSC 3724 which he says dealt with the COVID-19 factor as a collateral consequence. Justice Heeney was tasked with sentencing a 65 year-old offender who was found guilty of several drug offences. The Crown sought a lengthy jail term and agreed that the defence did not have to call evidence to prove that usual operations in an institutional facility would be impacted by the pandemic, including access to visits, movement within the institution and the availability of programming. Heeney J. took the pandemic into account and mindful of the defendant's old age, held that his risk of contracting the virus was elevated. Accordingly, he reduced the overall sentence by 1 year to account for this collateral consequence. Importantly, this was done in the context of the totality principle because he determined that a fit sentence was 14.5 years imprisonment which he reduced to 12 years imprisonment. Clearly Mr. Hunt is not looking at a lengthy penitentiary sentence but the general observations related to the pandemic remain relevant.

[29] Further, Mr. Slessor reminded me that Heeney J. was presented with similar evidence from Dr. Orkin, and his response is not dissimilar from that of the Crown in that case. He submits that if the court were to imprison Mr. Hunt, he would likely serve his sentence at Central East Correctional Centre (CECC) in Lindsay, Ontario where the Information Note suggests there is 1 active case, but the institution has taken significant measures to protect the health and safety of the prisoners. Mr. Slessor says while this presents as a collateral consequence, it is a muted consequence in this case, given this record and if the court sees fit, should only result in a small reduction of his sentence. It should not justify an "exceptional" non-custodial sentence of something in the range of 90 days as advocated by Mr. Gill.

[30] While I tend to agree with Mr. Gill that the COVID-19 pandemic is an extraordinary event which has uprooted society as we know it, I disagree that it requires an "exceptional" sentence within the meaning of the law. Even though the full impact of the COVID-19 virus is evolving, sometimes at break neck speed, the law has been clear that the advent of the pandemic does not necessarily reduce a sentence that is already at the low end of the range: Morgan, at paras. 11, 12. In my view, the Crown's position of 12 months imprisonment is already at the low end of a fit range given the binding guidance and specific circumstances of this case. That said, I agree with the general observation of Heeney J. in Tasevski, that even in cases where there are no active cases of the virus in the institution, the pandemic has changed the usual operations of institutions. At paragraph 65 he noted that while jails are doing their best and can't be faulted for the pandemic, the simple fact of the COVID-19 virus in the community will mean prison conditions will be more harsh because access to visitors will be limited, freedom of movement will be restricted and programming will be restricted. I think this makes good sense. On this basis, I am satisfied that even without any specific evidence of the impact on Mr. Hunt, the existence of the COVID-19 virus in the community will change the way Mr. Hunt would have served a jail sentence if there was no virus. To put it bluntly, the prison experience will be different. It is therefore a valid collateral consequence of sentence.

[31] This leads me to the next inquiry of whether there is also case specific evidence that the COVID-19 virus will have a further disproportionate impact on Mr. Hunt requiring the court to consider imposing a different sentence. While there is still some debate in Ontario, I am persuaded by the guidance offered by Justice Skarica in R. v. Hannaford, 2020 ONSC 3665. At paragraph 39, Skarica J. identified a number of factors that he used in assessing the specific risk to an accused during the COVID-19 pandemic. These factors were developed in a bail context but he suggested they would be helpful in a sentencing context as well. I agree. In R. v. Baidwan, 2020 ONSC 2349, at para. 161, he identified the following factors:

1. Recent reliable data regarding the general risk, to the Canadian/Ontario/local population, of being infected by COVID-19 and related risk of serious illness/death.

2. The specific risk of an accused due to his/her age and underlying medical conditions.

3. The specific risk of an accused in a particular institution.

4. Any medical evidence particular to an accused's physical and/or mental health.

5. Any history of violating court orders.

[32] Applying the above framework, I make the following findings, as it relates to assessing the specific risk of the COVID-19 virus to Mr. Hunt. In doing so, I note that the information that was filed by the parties was not tested by cross-examination:

1. General risk to Ontario population having regard to most recent data — At the time of sentencing in August 2020, this information was not presented at the hearing. Dr. Orkin's affidavit was dated in May 2020 and is therefore not entirely up to date but he does make some broad points worth consideration. First, he noted that 99% of the population remains susceptible to the virus. I can only infer that this would not change with time, especially because I know (at this point), there is no vaccine for the virus approved by Health Canada. Second, he stated that healthier and younger persons are not immune to the virus, even though the worst effects are felt by older and those with pre-existing medical conditions. Third, there is no specific therapy or treatment of the virus (at the time of his affidavit in May 2020) and the virus can be best managed through population health strategies (at para. 23). These broad points have been endorsed in other cases as well but don't tell me much about the risk to Mr. Hunt. In Baidwan, Justice Skarica relied on an "Epidemiological Summary COVID-19 in Ontario: January 15, 2020 to June 9, 2020" and noted that the likelihood of a person under 40 dying from COVID-19, if infected, is reported at 0.1 percent. While I don't have this evidence before me, there is nothing to suggest that Mr. Hunt (who is under 40), is at an elevated risk of dying from contracting the virus.

2. Specific risks to accused — Mr. Hunt is 31 years old. As stated above, there is no evidence of any specific risk to him if he contracts the virus. In Baidwan, Justice Skarica sentenced a 32 year-old offender in June, 2020 and held that according to the data filed in his case, there were 11 people in Ontario, in Mr. Baidwan's age, who had died after being infected by the virus. He added: "Even if infected, according to the data, the accused's chances of death are approximate 0.1 percent". Again, while this evidence was not presented in this case, it does offer a similar perspective.

3. Specific risks in institution — As noted above, as of August, 2020, there are no staff with the virus at CECC and one case with a positive inmate, one positive case which was resolved while in custody and one positive case where the inmate was released from custody. I do not know if this has changed for better or worse in September 2020 but I will assume for Mr. Hunt's sake that there is still one active case at CECC at the time of sentencing. That said, the Information Note filed by Mr. Slessor suggests CECC is doing everything it can to control and isolate the virus. This includes a number of lofty measures which is getting better with time as more is learned about the virus. It is comforting to know there is no evidence of any outbreaks.

4. Medical Evidence — Mr. Hunt has presented no medical evidence regarding health/mental conditions that would make him more susceptible from an infection from the virus. I am prepared to find that should he contract the virus, his coping strategies from a mental health point of view would be more challenging because of his mild intellectual disability, but this is a big if - as there's no evidence he has the virus.

5. Violation of court orders — Finally, Mr. Hunt has no history of violating court orders and I find he would dutifully follow public recommendations regarding physical distancing and stay at home rules if not incarcerated. Of course, this is part of the equation and does not on its own tilt the balance.

[33] Based on the above findings on this limited record, I find there is no case specific evidence above and beyond the existence of the COVID-19 virus in the community that would make serving a long jail sentence disproportionate to Mr. Hunt's circumstances. While I remain sensitive to the scope of the COVID-19 pandemic in our community and in congregate settings like institutions, I must stay focused on the appropriate sentencing principles. In R. v. McGill, 2016 ONCJ 138, my colleague Justice Green in his erudite reasons discussed the concept of "exceptionality". At paragraph 69, he held that the notion of "exceptional circumstances" is often the mechanism for, "preserving the continuing authority of the sanctioned range [of sentence] while allowing for more lenient treatment of "exceptional", "rare", "unusual" or "extraordinary" cases that, through such legal characterizations, can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class of cases." While the COVID-19 virus is indeed extraordinary, there is nothing exceptional, rare or unusual about sentencing an offender for drinking and driving which unfortunately continues to flourish in our community. The fact of the virus is not, on its own, an "exceptional circumstance" that justifies departing from an acceptable range of sentence. Instead, I view it as an important collateral consequence of imposing an individualized and proportionate sentence. The pandemic cannot make an unfit sentence, a fit one.

Parity and Proportionality

[34] Returning to Mr. Gill's submission about ignoring precedent. In Friesen, the Supreme Court reminded that parity is an expression of proportionality. It would be an error in principle to simply ignore precedents. Instead, precedents play a different role in light of the COVID-19 pandemic. Invariably, other cases are helpful in assessing proportionality in the circumstances of Mr. Hunt's case. I have reviewed the cases filed by Mr. Gill in support of his submission for a fine and in my view, they can all be distinguished. See for example, R. v. Murray, [1997] O.J. No. 6196 (Ont. Sup. Ct.); R. v. Rowan, [2004] O.J. No. 3719 (C.A.). Most, if not all of them were guilty pleas, which is an important factor in drinking and driving cases because it spares the toll on the victims from testifying about a traumatic event. Mr. Hunt did not plead guilty and while his lack of plea does not equate to an aggravating factor, it disentitles him to the benefit of potentially an important mitigating factor. In Rowan, the Court of Appeal in a short endorsement dealt with a dispute about the proper length of the driving prohibition, not the fitness of the sentence which was a joint submission. Rowan has no binding application to this case.

[35] I have considered a number of cases where sentences were imposed for first offenders convicted of the offence of impaired driving causing bodily harm. This includes all the cases filed by the parties and the helpful sentencing chart prepared by Mr. Slessor. The sentences range across a spectrum from 6 months imprisonment to longer jail sentences in the reformatory. This appears to be in line with the advice from the Court of Appeal in Clouthier which suggested prison sentences in the mid to upper reformatory range barring any exceptional circumstances. In cases where sentences closer to 6 months were imposed, the offenders pled guilty and the BAC levels were lower than Mr. Hunt. I have already explained why no exceptional factual or legal circumstances exist in this case. Again, the pandemic is a collateral consequence of sentence. In my view, this case clearly calls for a prison sentence of substantial length to give effect to the circumstances of this case.

[36] One case in particular which is helpful in identifying an appropriate sentence is R. v. Salandra, 2016 ONCJ 79, penned by Justice Stribopoulos (sitting in the Ontario Court of Justice, now in the Superior Court of Justice). In that case, the court sentenced an offender who rear ended a pizza delivery driver causing broken ribs to a sentence of 6 months imprisonment followed by a 12 month probation order. Ms. Salandra registered breath readings in the range of 140 mgs of alcohol in 100 mls of blood but unlike Mr. Hunt, pled guilty. I am persuaded by the thoughtful analysis of Stribopoulos J. who reviewed all the binding authorities and held there are two variables which are pertinent in sentencing an offender for this offence. The first is the offender's character including a related criminal record. The second is the nature, severity and lasting effects, if any, of the injuries to the victim(s). In view of the defendant's positive character, lack of any record, guilty plea and lack of any lasting effects on the victim, he settled on 6 months as an appropriate penalty for Ms. Salandra.

[37] There are a plethora of other cases that have relied on similar factors in sentencing offenders to sentences much higher than 6 months. For example, see R. v. Harrington, 2012 ONSC 5363 (9 months), R. v. Ranger, 2015 ONSC 4383 (19 months) and R. v. Grozell, 2010 ONSC 307 (13 months per Lauwers J. [as he then was]). Of course, there are many other cases, including those in Mr. Slessor's sentencing chart.

[38] Mr. Hunt presents with a sympathetic and positive background as evidenced by his character letters. He is a mature first offender who presents with a mild intellectual disability and is now in a stable relationship which will help him cope with his deficits. I am persuaded that he will not reoffend by drinking and driving. However, the impact of his crime on the Herberts was significant. As senior citizens, they will not easily heal from the emotional or physical pain of Mr. Hunt's actions. Balancing all these and other appropriate factors in this case, I agree with the Crown that a fit sentence is 12 months imprisonment.

Collateral Consequences and the Circumstances of the Case

[39] Turning finally to the treatment of COVID-19 and its impact in this case as a collateral consequence. While I have found that it does not on its own call for an exceptional sentence, I return to the comments of Heeney J. in Tasevski which I adopt. I am sentencing Mr. Hunt in September 2020 when the curve of the virus has been flattened, but, by all accounts from health officials, a second wave may be imminent with colder weather around the corner making physical distancing challenging. I can take judicial notice that September is also back to school for many members of the community, which has increased the levels of anxiety for parents and others as evidenced in many media reports. I do not know if the one active case in CECC has been resolved and will assume for Mr. Hunt's purposes, it has not. Even with CECC doing everything they can to control and isolate the virus in the institution, I can reasonably infer that this would cause a person like Mr. Hunt who has never experienced prison, to be more anxious. The experience of serving time behind bars during a pandemic is fundamentally different if the experience did not involve a pandemic. In my view, this will make serving a long jail sentence that much more difficult. See also R. v. A.A., 2020 ONSC 3802; and R. v. Durance, 2020 ONCJ 236, where my judicial colleagues took a similar approach.

[40] Added to this mix is the fact that this case has weighed on the minds of Mr. Hunt, the victims and the community for over 3 years. While I did not find a Charter violation based on pre-charge delay, closure in a case like this should not have taken this long. This too, remains a valid consideration as a collateral consequence. I am sensitive to the defence submission that a slow police investigation resulted in Mr. Hunt having to retain counsel to advance Charter applications, which were arguable but unsuccessful. Even Mrs. Herbert in her victim impact statement expressed frustration with the police investigation, after her calls and emails went silent. As I held in my Charter reasons, the community expects timely justice. While this was not a reason to terminate the prosecution, it is unique to Mr. Hunt's case and worthy of consideration. The same can be said for the notional violation of Mr. Hunt's right to counsel.

H. THE SENTENCE

[41] Balancing all the unique factors in this case, I have determined that this record requires some consideration of reducing an otherwise fit sentence of 12 months imprisonment. While there is no mechanical or academic exercise, this is largely a discretionary decision given the record before me. Factually, this is an odd case, one which I don't think will carry much precedential value. In approaching my task, I remain alive to the overall fitness of a case and one that cannot exceed an absolute bottom end of an acceptable sentence. For this reason, I am prepared to reduce the sentence by 3 months based on this unique record and impose an overall sentence of 9 months imprisonment. This will give effect to all of the unique collateral consequences of commencing a jail sentence in the fall and the odd factual circumstances of this case. This represents an individualized and proportionate sentence but also on par with similar cases in Ontario. In my view, anything lower than 9 months imprisonment would result in an unfit sentence for an offender who chose to drink alcohol and drive causing a collision and meaningful injuries to the victim. With statutory remission, Mr. Hunt would be incarcerated until about the spring of 2021. Hopefully, the COVID-19 virus will have abated allowing him to safely return to his community. In the spring, he could transition into the rehabilitative phase of his sentence with probation services and commence employment in the construction industry.

[42] Respectfully, Mr. Gill's submission for a fine and probation would be an error in principle. It is neither proportional to the circumstances of this case, including the background of Mr. Hunt, nor on par with similar sentences imposed for similar offenders in similar circumstances.

[43] Nor would an intermittent sentence be fit given that the maximum sentence permitted to be served on the weekends would be 90 days. Neither Mr. Hunt's circumstances nor the COVID-19 pandemic, swing the pendulum to anywhere near 90 days.

[44] Similarly, I have considered Mr. Gill's submission for a conditional sentence order under s.742.1 of the Criminal Code and I agree with Mr. Slessor that it is not statutorily available in this case by virtue of s.742.1(e)(i) as the offence resulted in bodily harm. I agree with Mr. Slessor that the Court of Appeal in R. v. Sharma, 2020 ONCA 478 only dealt with the constitutionality of s.742.1(c) and s.742.1(e)(ii), not subsection (i). No similar constitutional challenge was launched in this case to s.742.1(i) which remains in force and effect, barring consideration of a conditional sentence. See also R. v. Rawn, 2012 ONCA 487, at para. 44.

[45] I will place Mr. Hunt on probation for 15 months which will start once he is released from the institution. This is in lieu of a longer jail sentence which will help Mr. Hunt with his rehabilitative efforts in the community. The order will have a reporting condition until his counselling for alcohol abuse has been completed to the satisfaction of his probation officer.

[46] Also on consent, there will be a driving prohibition for 3 years which will start upon termination of the prison sentence.

[47] Finally, there will be a DNA order as the offence is a secondary designated offence prosecuted by indictment. It is in the best interests of the administration of justice having balanced the nature of the offence, the lack of any criminal record and the low impact on Mr. Hunt's privacy and security interests.

[48] I will direct the clerk to send a copy of these reasons to the institution to assist with classification. It is hoped these reasons will inform the institution about Mr. Hunt's background even if he can't meaningfully communicate them himself. It is hoped he will pursue programming for alcoholism and life skills and return to the community a better man as he has vowed to be, after paying his debt to the community. It is hoped his family and friends will continue to support him while in custody and beyond. Finally, it is also hoped that the Herberts' physical and psychological pain can heal allowing them to enjoy their senior years.

[49] I would like to thank counsel for their helpful material which greatly assisted the court in adjudicating this case during a health emergency.

Released: September 8, 2020

Signed: "Mr. Justice F. Javed"