Court File and Parties
Date: March 11, 2021 Information No.: 2811-998-17-25083-00, 2811-999-17-23207-00 Court: Ontario Court of Justice
Her Majesty the Queen v. Rose Andrew-Somers
Before: The Honourable Justice G. R. Wakefield Heard: March 11, 2021, at Oshawa, Ontario
Appearances
Counsel for the Crown: D. Parke Counsel for Rose Andrew-Somers: E. Neubauer
Wakefield, J. (Orally):
Reasons for Sentence
[1] Ms. Andrew-Somers stands before me having been convicted of two counts of causing an accident resulting in bodily harm while having a blood alcohol concentration of over 80 contrary to the now repealed section 255.21 of the Criminal Code, due to a motor vehicle collision on March 24th, 2017.
[2] The issue on sentencing is what is the appropriate sentence on this charge with few case precedents and given its subsequent repeal and replacement.
[3] The Crown is seeking a sentence of 15 months incarceration followed by three years’ probation and a three-year driving prohibition. The defendant is advocating a sentence of 90 days intermittent with a lengthy probation order including restitution and does not object to the Crown proposal of the three-year driving prohibition and also raises the prospect of a substantial fine.
[4] The defendant was originally tried on the above noted offence together with two counts of impaired causing bodily harm with an acquittal being entered on the latter charges, the reasons for which are set out in R. v. Andrew-Somers, [2018] OJ No. 7236. Given that result, a trial was at least partially successful. While no one should ever be penalized for exercising their constitutional right to a trial, in many cases, a defendant by so doing, loses the benefit on sentencing of an early guilty plea which often has a tremendous mitigating effect on sentencing.
[5] I agree with the Crown submission that a triable issue is not by itself a mitigating factor and not parallel to an early guilty plea, though I part ways with the Crown to this extent: the triable issues resulting in acquittals may, in some circumstances, form part of the constellation of sentencing factors a judge must consider.
[6] Similarly, I also take into account the fact of an agreed statement of fact which resulted in both a more efficiently run trial and more importantly, preserving both victims from having to testify.
[7] In any event, a defendant should never feel pressured into a guilty plea on counts including some of which a defendant is indeed not guilty. An early guilty plea to a count of which the defendant is not guilty is not mitigation, but a fraud upon the Court.
[8] As such, in my view, how one assesses trial results does play some role that in the right circumstances parallel some but not all of the values reflected in sentencing arising from an early guilty plea. I’ve included some credit for the trial result and efficiencies conceded during the trial for the purposes of this sentencing.
[9] In summary, the facts found at trial is that the defendant rear-ended a vehicle stopped at a red light. She attended the other vehicle then walked away briefly before returning. She did not exhibit any indicia of impairment to the extent that despite a Crown directive, investigating officer refused to charge her with impaired and charged only an over 80 simpliciter.
[10] A Crown review resulted in a different officer preparing a replacement information for two counts of impaired bodily harm and two counts of cause accident with bodily harm while over 80. The defendant’s truncated BAC readings were 160 and 150.
[11] The stopped vehicle passengers suffered injuries which were conceded as amounting to bodily harm. As one victim reminded the Court in an updated victim impact statement, the sentencing hearing occurs three years, seven months, and twenty-one days after the defendant chose to drink and drive. Despite that extensive length of time, the two victims’ injuries have not resolved.
[12] The passenger’s injuries reported in an initial 2018 statement comprised of whiplash-associated disorder with a complaint of neck pain, with musculoskeletal signs, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of ribs and sternum, sprain and strain of lumbar spine, contusion of thigh, insomnia, post-traumatic stress disorder, anxiety, panic attacks, and depression.
[13] The passenger’s subsequent November 2020 victim impact statement categorized each of the same injuries still plaguing her. She continues to suffer a great deal of pain; is seeing a therapist for her mental health and is battling her insurance company for both benefits and financial support. She lost her career path employment and while finding lesser a replacement employment, working from home during the pandemic is challenging as her injuries continue to pain her while trying to keep up with work.
[14] The two victims were in a spousal relationship which fell apart and in the view of both victims, as a consequence of the stress and challenges of their respective injuries.
[15] The driver of the impacted vehicle also provided a victim impact statement. He filed a restitution statement with a modest amount given the circumstances especially after clarification of the numbers. The driver’s victim impact statement also reflects continuing health issues caused by the accident. His initial victim impact statement described the following injuries: whiplash-associated disorder with complaint of neck pain and musculoskeletal signs; injury of nerves at shoulder and arm level; sprain and strain of thoracic spine; sprain and strain of lumbar spine; sciatica; sprain and strain of other and unspecific parts of knee; dizziness and giddiness; post-traumatic stress disorder; depression; anxiety, insomnia; disc bulges in the lumbar spine; ongoing neurological symptoms in both upper and lower limbs. The driver’s subsequent statement updated for the sentencing hearing is especially restrained. He confirmed the breakdown of the relationship with his then-partner, as they both dealt with their respective injuries. He too lost a career path after the accident and had to engage in counselling. He continues to be in pain and has suffered financial setbacks. Treatment for his now-chronic conditions have been disrupted by the pandemic. His current victim impact statement concludes with a truly charitable level of forgiveness towards the defendant.
[16] To the defendant’s credit, she readily conceded that both victims’ injuries are serious and I certainly find that they amount to life-changing injuries given both of their continuing impact on both of the victims’ lives and economic security years after the collision. Additionally, the defendant did not object to the admission of the victim impact statement with a consequential delay that would occur if contested, but relied on the Court to disabuse itself of those contents which fell outside the purpose of the statements.
[17] As to why this matter is still before the courts now in 2021, there have been many steps in the trial process. There are reported reasons for the initial application before arraignment to quash the replacement information for noncompliance with section 504 of the Criminal Code, setting out several reasons including lack of an oral oath while swearing the information, found at R. v. Andrew-Somers, [2018] OJ No. 7230, the trial judgment found at R. v. Andrew-Somers, [2018] OJ No. 7236, a Rowbotham application being denied at R. v. Andrew-Somers, [2019] OJ No. 4987, and a constitutional challenge result found at R. v. Andrew-Somers, [2020] OJ No. 2804. Obviously, the pandemic also created some delay in bringing this matter to a conclusion.
[18] The defendant is almost 37 years of age and the subject of a positive pre-sentence report. She is in a committed domestic relationship, employed in two businesses, and has earned both the respect and reliance of her main employer. In both the pre-sentence report and her viva voce apology to the victims, she demonstrated genuine remorse. She has the support of her extended family and her spouse. She plays an important role as support for her mother, including being the interpreter for her mother who has lost all hearing.
[19] On the basis of the support shown to her, as well as the exercise of responsibility towards her mother and the sacrifices that entails, I agree with the defence categorization of specific deterrence playing a lesser role in the sentencing matrix.
[20] I also agree with the defence submission that while not approaching anywhere near the life-changing impact on the victims of the defendant’s actions, Ms. Andrew-Somers has been living with these criminal charges now for years. In observing the defendant over the course of this trial, I have inferred that the personal consequences of her choices have been a continuing reminder to her of the responsibility for how she impacted into the lives of the victims. I note that immediately after the collision, she went over to the victims’ car to inquire about their wellbeing and gave, what I accept, was a heartfelt apology to the victims during the trial.
[21] Ms. Andrew-Somers has successfully completed addiction counselling through the Pinewood Centre. However, in submissions, counsel for the defendant submitted that the defendant’s behaviour was not intentional and it was an accident, which if accurate as to the defendant’s mindset (I don’t ascribe that comment to the defendant) would demonstrate an ongoing lack of insight. The choice to drink to excess and then drive was intentional and the collision was not an accident but rather one caused by her in circumstances in which her BAC was almost double the legal limit.
[22] Indeed, in the circumstances of drinking and driving generally and specifically regarding the wording of this particular charge, the very use of the word “accident” carries with it an implied diminution of responsibility rather more applicable to a civil standard than a criminal culpability standard.
[23] The defendant, when asked, advised she understood she shared indigenous heritage. A Gladue report was ordered and which advised that the author was unable to confirm such heritage.
[24] I fully accept the caution in that report that the lack of confirmation is no way a denial of such heritage. I accept that one of the many impacts of colonialism has been the destruction of any connection to First Nation heritage for far too many families. The result, however, is that I now lack any evidentiary foundation impacting the moral responsibility of the accused arising from that First Nation heritage and history.
[25] I have disabused myself of the suggestion which rose from an explanation that the Ministry of Transportation driving record had not been updated, that Ms. Andrew-Somers may be facing subsequent criminal or quasi-criminal charges and I rely upon the pre-sentence report and supporting sentencing materials setting out her successful strides in rehabilitation and the impact on her of having caused the accident as well as my observations of the defendant in court over the several years this matter has been litigated for the purposes of my assessment of the appropriate sentence.
[26] However, the filed driving record does display a series of speeding and moving violations denoting a lack of responsibility for the duties imposed on all drivers with a privilege of a driver’s licence.
[27] More disconcerting is that on two prior occasions, Ms. Andrew-Somers has received two licence suspensions for recording a “warn” on a roadside screening device. As the Crown properly submitted, such an entry is not a conviction and certainly not an aggravating factor on sentencing as would be the case of a conviction.
[28] However, the Crown asserts and I agree, that two such incidents should be considered as warnings to the defendant as to both an issue regarding drinking and driving as well as confirmation of her knowledge that there are consequences for so doing neither of which deterred her from the consumption of alcohol and then driving with the subsequent causation of the motor vehicle collision which injured the victims.
[29] The pre-sentence report gives insight to both some of the struggles and maturation Ms. Andrew-Somers has experienced and the progress she has made in counselling.
[30] Dealing first with the section of the Code itself, in my view, there is an argument to be made that this is a distinct offence from that of impaired bodily harm. The elements of the offence are unrelated to impairment, but focus on the causation of the collision, who was the driver, the blood-alcohol concentration of the driver, and the severity of the injuries. While I observe that the section’s purpose is to deter drinking to excess and then driving with a consequential risk to the community, the offence does not require impairment nor potentially would a Kienapple stay result if convicted of impaired bodily harm.
[31] Given the acquittals on the impaired bodily harm counts, that is not an issue I need address in this sentencing. This issue was reviewed in R. v. Ranger, [2015] OJ No. 3982, and resolved by counsel jointly recommending that the section 255(2.1) counts be stayed pursuant to Kienapple. My view is that in parallel with dangerous operation causing bodily harm, the underlying delict is distinctly different from either impaired bodily harm or dangerous operation bodily harm.
[32] I can also appreciate some others might see sufficient overlap to the other two types of offences so as to result in a stay or at least, concurrent sentences.
[33] In my view, section 255(2.1) of the Criminal Code is not a lesser-included offence of an impaired bodily harm, but a distinct charge standing independently within the drinking and driving sections of the Code. As such, I am of the view that the level of impairment is not necessarily an aggravating factor in this particular offence, in that the impaired charges have their own section of the Code. The aggravating factors would be restricted to the nature of how the collision was caused, the severity of the collision, the severity of the injuries, and how high was the BAC. In other words, I would rely upon the elements of the offence as an attempt by parliament to create a drinking and driving offence not reliant on impairment.
[34] I also note that an acquittal on the impaired bodily harm counts is not the same as finding that the defendant was not impaired, only that the Crown was not able to meet its evidentiary onus in order to obtain a conviction on those two counts. Section 255(2.1) of the Criminal Code has a jeopardy of up to 10 years. I note that it would be a combination of the worst offender and the worst facts that would result in the maximum sentence. I accept the defendant is far from the worst offender as reviewed above, but nor is she the least aggravating offender given her prior driving history. I further accept defence counsel’s submissions that the bodily harm caused here is not the most egregious and I must note that those submissions by defence counsel were made most respectfully and sympathetically regarding the victims in this case.
[35] However, the injuries caused to both victims in this case are neither minimal nor are they fleeting and years later, those injuries are still plaguing both victims. I also again note that the maximum sentence would be for the worst injuries just short of death or a greater number of victims or lesser injuries with a worse offender than the defendant.
[36] Both defence counsel prepared sentencing charts, attempting to rationalize the wide diversity in sentencing judgments and drinking and driving cases. I agree that impaired bodily harm and dangerous bodily harm or refuse bodily harm sentences can provide some guidance for the trial judge for a conviction under the section before me today.
[37] The defendant’s sentencing chart is consistent for the proposal for an intermittent sentence of incarceration. All but two predate the sentence of Marco Muzzo on March 29th, 2016, but many of the defence cases do post-date R. v. Ramage, 2010 ONCA 488, R. v. Junkert, 2010 ONCA 549, and R. v. Kummer, 2011 ONCA 39. The three appellate decisions, which many jurists have pointed to, is yet another turning point in drinking and driving sentences and that cases pre-dated those three Court of Appeal decisions having diminished value, (for example, R. v. Muzzo, 2016 ONSC 2068, paragraph 69).
[38] It should be remembered that in the Muzzo decision, Justice Fuerst sentenced Mr. Muzzo to five years concurrent on each of the bodily harm counts. Some of those victims had far more severe physical injuries than the case at bar. Those victims of Mr. Muzzo were also emotionally traumatized by the loss of so many members of their family killed in that collision, which I view as another aspect of bodily harm. At the same time, I would note that living with their injuries, the victims in the case before me caused emotional trauma leading to the dissolution of their relationship.
[39] I have concluded that the circumstances of this case and those of the defendant’s simply cannot justify an intermittent sentence. While all the sentencing criteria set out in section 718 of the Criminal Code apply, the message of a multitude of sentencings is that the two most important sentencing principles are denunciation and general deterrence in drinking and driving cases. Neither an intermittent sentence nor, were it available, a conditional sentence would come close to satisfying those two sentencing principles in the current sentencing ranges for drinking and driving which results in bodily harm.
[40] Cases provided by the Crown, pre-Muzzo, still reflect an increase in severity of sentences where the physical and psychological health of the victims of drinking drivers is adversely impacted. In R. v. Mitchell, [2016] OC No. 6161, after a guilty plea to two counts of impaired bodily harm, the accused was sentenced to 16 months incarceration, circumstances of where two victims suffered serious injuries itemized in those reasons.
[41] Additionally, Justice Felix also finds, and I agree with him, that the decision R. v. Lacasse, 2015 SCC 64, that Court set out that there are no applicable sentence ranges for impaired causing death and “that statement of the Court is also applicable to impaired causing bodily harm,” paragraph 35.
[42] R. v. Harrington, 2012 ONSC 5363, [2012] OJ No. 4545, is a sentence on the same charges as before the Court, section 255(2.1) of the Criminal Code, in which the victim suffered serious and life-threatening injuries and whose limited recovery prevented his returning to employment and left him with continuing chronic pain. That accused was sentenced to nine months jail and a hundred hours of community service, which I take that community service as being imposed in lieu of a longer period of incarceration. I note this sentence did not deter Mr. Muzzo from committing his crimes a few years later.
[43] Cases provided by the Crown released after the Muzzo decision reflect further increases in sentencing severity. For example, R. v. Clouthier, 2016 ONCA 197, in which the Court increased two intermittent sentences of 90 and then 60 days, arising out of the same offence to one of 11 months incarceration which would have been an incarceration of between 15 to 18 months, absent a number of mitigating factors. The victims included a passenger requiring emergency surgery and two others who “suffered both physical and psychological harm as a result of this action,” paragraph 43.
[44] In R. v. Bulland, [2019] OJ No. 3689, the accused was convicted after trial of impaired bodily harm. That defendant had a lower BAC range than the defendant before me today. The victim had more serious injuries which kept him in the hospital for eight months and subsequent in-patient care in a rehabilitation centre. That victim’s ongoing prognosis was bleak, unable to walk again nor able to live independently again, with a consequential further suffering from depression. The trial judge exceeded the trial Crown’s position of two years and imposed 39 months but did not ask for further submissions from either Crown or defence, resulting in the appellate Superior Court reducing the sentence to the two years initially recommended by the Crown at trial. Given the devastating injuries reflected in that trial judgment, I’m quite comfortable with the trial judge’s original sentence.
[45] A number of cases were included in the Crown case book released soon after the Muzzo decision but not referencing the Muzzo sentences on the bodily harm counts having incarceration ranges of six to nine months for each of those defendants.
[46] However, the most recent filed case is that of R. v. Wadien, [2020] OJ No. 586. The defendant was convicted of both impaired bodily harm and over 80 bodily harm with a Crown seeking a sentence on the impaired bodily harm count. That defendant had roughly the same BAC as the defendant here. There were five victims in the collision with injuries to some more extensive than the case at bar and more severely life altering in consequential emotional trauma. The judgment references a series of cases of impaired bodily harm where the victims were made paraplegics for example, but whose sentences range from three years to in excess of four years’ incarceration.
[47] At paragraph 28, Rahman, J. notes that: What is even more surprising is that the problem persists after high profile cases, such as Muzzo, where three children and their grandfather were killed by a wealthy, privileged, offender. That is likely why the Muzzo case has been described as a turning point, marking an increase in sentences for this offence.
[48] While the offender before me is neither wealthy or necessarily privileged, she did feel sufficiently entitled to drink and drive no matter the risks. Mr. Wadien was sentenced to two years in the penitentiary.
[49] Current sentencing ranges post-Muzzo, in my view, are now reflecting yet another escalation in sentencing and response to the continuing threat posed by drinking drivers. In other words, I do not perceive the Muzzo decision as any sort of high-water mark, but rather as a current comparative when assessing current offences.
[50] Sentencing ranges up to even today have not eliminated the carnage caused by drinking drivers. I do not need to cite statistical analysis to note that in my jurisdiction of Durham Region, drinking and driving cases continue to occupy judicial resources every week, if not every day, in at least one of our courtrooms. At some point, sentences must reach the level of severity as to ensure those who would drink and drive will be deterred.
[51] That deterrence is not met when an accused is found guilty of an impaired or over 80 simpliciter and receives, almost always, a fine and driving prohibition. The latter order being subjected to an interlock program which effectively protects the community from a driver consuming alcohol and driving but only for the limited period of time such device is installed in a motor vehicle.
[52] Deterrent sentences only appear due to the consequences of bad luck, timing, and sheer chance, where victims are injured or killed, sentences which cannot prevent the carnage directly, and can only in reaction send a message out to the community.
[53] In my view, the facts of the offences before me, with two victims whose injuries continue to this day offering little in any prognosis of full recovery, calls for a sentence in the range of two to three years before taking into account the circumstances of Ms. Andrew-Somers.
[54] Ms. Andrew-Somers is the beneficiary of a positive pre-sentence report. She has confirmed her involvement in counselling despite the challenges in doing so during the pandemic. She describes herself as not the same person as at the time of these offences. She’s gainfully employed; in a committed relationship of some duration, and has strong environmental supports. The pre-sentence report confirms that she has demonstrated the ability to recognize the harmful impact that her actions have had on the victims. She understands the potential consequences of her choices arising from her thinking and attitude. The report confirms the strong community supports which will reduce her risk to reoffend.
[55] There are now reported decisions amounting to an ocean of judicial ink on the issue of drinking and driving. I would consider the appellate decision R. v. McVeigh, 1985 OAC 354, as the foundational decision upon which is based the ever-increasing sentences for drinking drivers convicted of causing death or injury to their victims. Like the defendant, Mr. McVeigh was an otherwise good person with a good reputation who was active in his community. The McVeigh judgment is a warning to the community of the penal consequences for drinking drivers and was released the year after Ms. Andrew-Somers was born. Her life has been lived with that judicial warning and many others over the course of her lifetime. Those warnings did not deter her nor have those warnings deterred so many other drinking drivers.
[56] Ms. Andrew-Somers is a first offender. While the case law is clear that the sentencing principles of deterrence and denunciation are paramount, I must still balance the other sentencing principles including prospects of rehabilitation and that of restraint in sentencing. In so doing, I find the appropriate sentence for this defendant would be within a range of 18 to 24 months. It would be inappropriate in my view, to impose a penitentiary sentence in these circumstances.
[57] I do observe that should the number of drinking and driving offences continue, I can certainly see a future in which first offenders might be at risk of being sentenced to the penitentiary. Post-offence denunciatory sentences are the only responses the Criminal Code provides sentencing judges to attempt curtailing the carnage risk caused by drinking drivers.
[58] Having come to my conclusion as the appropriate range for Ms. Andrew-Somers, I must also acknowledge that such a range is in excess of the Crown position and circumstances in which I have not requested further submissions from either the Crown or the defendant. As in the Bulland decision, I accept that absent further submissions, it is appropriate to restrict my sentence to that proposed by the Crown and do so solely for that reason.
[59] Ms. Andrew-Somers is sentenced to a period of incarceration of 15 months followed by three years’ probation. I understand the driving prohibition has not yet been made and that is, you are now prohibited from operating a motor vehicle on any street, road, highway, or other place for a period of three years commencing on today’s date. I am obliged to warn you that if you are found guilty of breaching my driving prohibition order and in circumstances in which the Crown elects by way of indictment, you would be at risk for up to five years in the penitentiary. It is simply not worth that risk. The terms of probation will follow the e-form. It will be of three years duration. The terms are you will keep the peace and be of good behaviour. Appear before the Court when required to do so by the Court. Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or the probation of any change in employment or occupation. You will report in person or remotely, if directed, to a probation officer within two working days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. Is the Crown seeking non-association orders?
MR. PARKE: Yes, please.
THE COURT: You will not associate or communicate in any way by any physical, electronic, or other means or be in the company of Vanessa Attard or Christopher Franklin except in the presence of or through legal counsel, and/or a peace officer. Radius?
MR. PARKE: Hundred metres, please.
THE COURT: Any submissions from defence as to the non-associations or the radius?
MR. NEUBAUER: Yes, my view is that radiuses are good and important when there is some concern about an individual attending where someone is or where the offence is sort of targeted at an individual. There’s no reason to believe that Ms. Andrew-Somers would want to have any contact with these individuals. If there’s animus in this case, it’s one way and I think Ms. Andrew-Somers has expressed she has nothing but hopes for a brighter future for these two individuals. In those circumstances I think any such boundary condition or distance condition unfortunately just creates a risk of an inadvertent breach and so I would just ask that there be no specific distance and rather just a not to attend anywhere she knows them to be. That of course, protects in any circumstance where she comes to learn that they are somewhere and she knows she has the obligation to leave them and not the other way around. Those are my only submissions.
THE COURT: You’ve actually saved me saying something directly to Ms. Andrew-Somers about her obligation but the circumstances here, I think the point of the radius is actually just to ensure that once Ms. Andrew-Somers is aware of the presence of either the two victims, that she has the obligation to back away. That’s important if for no other reason because I do accept that I have no basis to see any animus on the part of Ms. Andrew-Somers to the victims. Quite the contrary she was, I believe, genuine in her apology and her appreciation of the consequences of her actions. I just want to preserve the victims from that inadvertent contact that may enhance the trauma that they have already confirmed. As such, I will make an order that Ms. Andrew-Somers not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent, or any place you know the person to be except for required court attendances. The court attendance exception, I think, is important as well as the legal counsel is important as there is always the prospect of ongoing civil litigation that Ms. Andrew-Somers deserves the ability to defend herself appropriately. I cannot think of any other exceptions that would be appropriate here.
Paragraph 11. I’m not making an alcohol prohibition order. I don’t know the extent to which, if at all, Ms. Andrew-Somers has a dependency here, but rather address it through terms of counselling. As such, you will attend and actively participate in all assessment, counselling, or rehabilitative programs directed by the probation officer and complete them to the satisfaction of the probation for substance abuse, alcohol abuse, and then I am just going to go more generically to “other,” any counselling to assist in rehabilitation. I say that because again, I do not know enough about Ms. Andrew-Somers’ background and her life that there may not be other issues that have contributed to the use of alcohol and if so, I am just trusting that Ms. Andrew-Somers would take the initiative to follow through if those issues do exist. You will sign any release of information forms as will enable your probation to monitor attendance and completion of any assessment, counselling, or rehabilitation programs as directed. Mr. Neubauer, are you in agreement that restitution amount is $1,276.46 in total?
MR. NEUBAUER: Yes. If memory serves, that was the amount we agreed upon in the hearing and I think that we - I am seeing Mr. Parke nod his head yes - and that was an amount that we concede was fair and we were consenting to. So, I haven’t changed my position in that regard.
MR. PARKE: Your Honour, I had a request from your clerk this morning. I recalculated it off the medical records that were filed. You’ll recall that the specific request on what was given by Mr. Franklin, in my opinion, had the numbers switched. He put in what he had been reimbursed as opposed to what he was out of pocket. I recalculated it again this morning to confirm it and that’s the number that I provided. I’m confident based on the medical records that were filed in court that that’s an accurate reflection of the out-of-pocket expenses of Mr. Franklin.
THE COURT: Content, Mr. Neubauer?
MR. NEUBAUER: Yes, thank you.
THE COURT: Make restitution out of $1,276.46 to Christopher Franklin, to be paid - the reality is, my sentence is going to disrupt Ms. Andrew-Somers employment and in many ways, her financial stability. Normally, I’d think in terms of some sort of monthly component, here, subject to any contrary submissions, I am just going to have the amount to be paid in full by the completion of the probation order. Any contrary submissions?
MR. PARKE: Not from the Crown.
THE COURT: I am sure Mr. Neubauer is not opposed to that.
MR. NEUBAUER: Not at all.
THE COURT: So that restitution is to be paid in full by the completion date of the probation order. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim or agreed party. Are there any other terms of probation being sought by the Crown or defence or any concern with the wording I used from Crown or defence?
MR. PARKE: No, thank you, Your Honour.
MR.NEUBAUER: No, thank you, Your Honour, and sometimes these things pop up in writing. I have no doubt that Madam Registrar will be forwarding a copy of Your Honour’s order soon. I would simply ask, would Your Honour give us the permission, Mr. Parke and I, perhaps virtually or otherwise, to readdress you if we happen to notice something later on today?
THE COURT: I have no difficulty with that. Do you, Mr. Parke?
MR. PARKE: So long as it’s a matter of simply addressing typos or minor corrections, otherwise Your Honour would be functus, but for that purpose and that purpose alone, obviously I’ve got no problems.
THE COURT: Is that the import of what you’re suggesting?
MR. NEUBAUER: Yes. I don’t know that I can see the functus point but without discussing that, yes, that was my intention.
THE COURT: Thank you. Crown is seeking DNA. Any contrary submissions or is that conceded as well?
MR. NEUBAUER: I expect Your Honour will order it. I don’t think it’s necessary. I would oppose it.
THE COURT: Given on the one hand I have taken in account the lack of any prior criminal record, on the other hand, taking in account the nature of the offence, the circumstances of the offence, the minimal physical impact on the personal integrity of Ms. Andrew-Somers, I am satisfied it is in the best interest of the administration of justice to make the order. She will provide a sample of her DNA. That will be done in a safe, hygienic manner, I assume later today. I take into account as well in making that decision, that there is more to a DNA sample than just the physical extraction of a drop of blood, but it provides the government with essentially the very nature that makes up a person by that DNA sample. So, I do not take making that order lightly but, in these circumstances, given the appellate decisions as to the value of DNA, it is an appropriate decision to make today. Any other aspects of sentencing that the Crown would have me address?
MR. PARKE: No, Your Honour. I didn’t make note, you did impose the driving prohibition?
THE COURT: I did. Mr. Neubauer?
MR. NEUBAUER: Nothing else, thank you very much.
Certificate of Transcript
FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act
I, Jenny Locke, certify that this document is a true and accurate transcript of the recording of R. v. Andrew-Somers, in the Ontario Court of Justice, held at OSHAWA, Ontario, on March 11, 2021 taken from Recording No. 2811_101_20210311_085311__6_WAKEFIG.dcr, which has been certified in Form 1.
This certification does not apply to the Reasons for Sentence which was judicially edited.
March 25 2021
Date Jenny Locke, Authorized Court Transcriptionist
ACT ID 1448121453 Jenny.locke@outlook.com
