Ontario Court of Justice
Date: 2021·12·09 Newmarket
Between: Her Majesty The Queen — And — Aaron Lee
Sentencing Delivered: December 9, 2021.
Counsel: Ms. Vanessa Szirmak, counsel for the Crown Ms. Keely Duncan, counsel for the defendant
Kenkel J.:
Introduction
[1] The Crown elected to proceed by indictment and Mr. Lee pleaded guilty to:
- Attempted Robbery ss 343,463(a) of the Criminal Code
- Dangerous Operation s 320.13 of the Criminal Code
- Driving While Prohibited s 320.18 of the Criminal Code
[2] Mr. Lee drove a stolen car in a dangerous manner, driving in oncoming lanes and ultimately running a red light at high speed causing a multi-car collision. Mr. Lee approached a Nissan van and tried to steal that vehicle after punching and shattering the driver’s side window. He then fled but was arrested in the area. Mr. Lee suffered significant injuries. One other driver was taken to hospital for assessment but luckily no other driver was injured. CFS analysis of his blood from samples taken at the hospital indicated several drugs were present – Fentanyl, metabolites of cocaine and three further non-prescription drugs. Mr. Lee was on a release, probation and a driving prohibition at the time.
[3] The Crown submits that a sentence of two years less one day is necessary given the circumstances of the offences and the extensive record. This position takes into account the mitigating factors identified in submissions as well as the guilty plea. The defence submits that a sentence of time served is appropriate given the mitigating factors.
Aggravating Factors
[4] There are several factors that aggravate sentence:
- The dangerous operation caused a multi-car collision with 4 vehicles
- Mr. Lee has a lengthy, unbroken criminal record including past convictions for Dangerous Operation, Driving While Prohibited and offences of violence
- Mr. Lee was on release and probation at the time of the offences
- The presence of dangerous drugs in his system at the time of operation
- The impact on the community given the danger created and the fact that 4 vehicles were involved in the collision
[5] The dangerous driving in this case put the lives of everyone on the roadway at risk. The multi-car collision was predictable if not inevitable. At the time, Mr. Lee plainly had no regard for the safety of others on the roadway. It is pure luck that none of the other drivers were badly injured or killed.
[6] After the collision Mr. Lee chose to make matters worse by smashing out the window of one of the other damaged cars to try to steal the car from the driver. His subsequent flight put the public at further risk of harm.
[7] The offences of violence on Mr. Lee’s youth court record start in 2000 and include causing death by criminal negligence. His offences continued as an adult from 2005 to the present. On his last robbery conviction in 2016 he received the equivalent of a 30-month sentence.
[8] The part of the record most relevant to this sentence includes three convictions for Driving While Prohibited, the last one in 2021 when he was also convicted of Dangerous Operation less than three months prior to these offences. As an adult he has been convicted of driving offences that put the community in danger several times – 2006 Flight from Police s 249.1, 2013 Dangerous Operation s 249, 2021 Dangerous Operation s 320.13(1) and Flight from Police s 320.17.
[9] At the time of these offences Mr. Lee was on probation. He was prohibited from operating a motor vehicle which is an aggravating factor on the dangerous operation count – s 320.22(g) of the Criminal Code.
Mitigating Factors
[10] There are important factors that mitigate sentence:
- Mr. Lee’s guilty plea
- Mr. Lee’s difficult background as set out in the Pre-Sentence Report
- Mr. Lee’s expression of remorse
- The difficult circumstances in which he will serve any further sentence during the COVID pandemic
[11] Mr. Lee’s guilty plea, and his consistent expression of remorse when he spoke to sentence shows that he regrets his actions and understands that he needs to change.
[12] While his connection to indigenous ancestry is uncertain as explained in the Gladue letter by Aboriginal Legal Services, the details of his personal history set out in the Pre-Sentence Report show very difficult personal circumstances that certainly engage s 718.2(e) of the Criminal Code. I accept that he may well have a genuine connection to that ancestry and consider that as an important circumstance in sentencing. I agree with the defence that his background leads to a finding of reduced moral blameworthiness for a person battling significant behavioural issues since childhood and addictions throughout his adult life.
[13] His mother moved him from Newfoundland to Ontario so that he could get better behavioural therapy. He ended up living in group homes from 13 to 18 as his mother could not control his behaviour. He was a CAS ward from 14 to 18. In addition to the counselling he received as a youth, he’s had extensive counselling in the criminal justice system including Indigenous counselling and High Intensity Indigenous Programming in the penitentiary system. Despite what were likely genuine efforts to reform, as an adult he’s been in and out of jails continually for 16 years. He’s received counselling for his drug use but that remains a central problem.
[14] The difficult circumstances of incarceration during the COVID pandemic are notorious. Jail facilities are required to impose several layers of health restrictions for the safety of inmates and staff, but those restrictions also make time in custody more difficult. I take that circumstance into account in determining the appropriate overall sentence both with respect to time served and with respect to the conditions of further incarceration.
Sentence
[15] Mr. Lee is 35, with a long history of anti-social behaviour that dates back to early childhood. To this point all counselling, indigenous programming and other interventions have failed. The protection of the public is the central sentencing factor. There continues to be a need for specific deterrence. I find general deterrence plays a lesser role in this case given his difficult personal history. Rehabilitation is still the long-term goal that best serves Mr. Lee and the community.
[16] The circumstances of the offences combined with Mr. Lee’s record suggest the need for a lengthy sentence to protect the public. Unfortunately, the sentence proposed by the defence would immediately put the public at a high degree of risk. Mr. Lee has received penitentiary sentences in the past and on his last robbery conviction in 2016 he received the equivalent of a 30-month sentence. He received an actual 30-month sentence for further offences in 2017 including driving while prohibited. If he were convicted at trial, a penitentiary sentence in this case would have been inevitable.
[17] I agree with both parties that the accused’s background, his past efforts at reform and the circumstances under which he will be serving any future custodial sentence during the COVID pandemic emphasize the need for restraint. Those circumstances together reasonably result in a sentence below the penitentiary range on a guilty plea. Before consideration of the circumstances of his incarceration, I find a global custodial sentence of 20 months would be appropriate.
[18] As discussed above, the difficult conditions of incarceration during the COVID pandemic are notorious and ongoing. The defence was not required to call further evidence in that regard. As Mr. Lee has served all of his pre-trial custody during the pandemic, I find it necessary to reduce the global sentence by two months for a total global sentence of 18 months. This “Duncan credit” is part of the determination of a fit sentence before statutory “Summers credit” is applied – R v Marshall, 2021 ONCA 344 at para 52.
[19] Considering all of the circumstances, I find the least restrictive sentence that would be proportionate to the gravity of the offence and the degree of responsibility of the offender is a global custodial term of 18 months.
[20] Mr. Lee is entitled to the maximum statutory credit of 1.5/1 for the time he spent in pre-trial custody. He’s been in-custody since the day of his arrest on August 10th. August 10, 2021 to December 9th, 2021 is 4 months. The maximum statutory credit of 6 month applies.
[21] The global sentence before consideration of s 719(3.1) of the Criminal Code statutory credit for pre-trial custody is 18 months. From that term 6 months are deducted for “Summers credit” – 2014 SCC 26. That leaves 12 months remaining to be served.
[22] CUSTODY – Mr. Lee is sentenced to 365 days on each count to be served concurrently for a total sentence of 365 days.
[23] PROBATION – The custodial sentence will be followed by a period of probation for 2 years. In addition to the statutory conditions you will:
- Report to probation by phone within 3 business days of your release and thereafter as required.
- Reside at an address approved of by probation.
- Not operate any motor vehicle.
- Not occupy the driver’s seat of any motor vehicle.
- Take any counselling directed by your probation officer including counselling for drug use.
- Sign any releases required for probation to monitor compliance with this order.
- Not possess any drugs or substances listed in the Controlled Drugs and Substances Act without a valid medical prescription in your name.
- Not possess any weapons as defined by the Criminal Code
[24] DNA – Robbery is a primary compulsory DNA offence – s 487.04(a) of the Criminal Code. Mr. Lee is ordered to provide a sample of his DNA for registration on the national databank on that offence. Dangerous Driving and Driving while Prohibited are secondary offences where the Crown proceeds by Indictment. The circumstances of the offences and the accused’s prior record require DNA orders to be made on those counts in the public interest. I understand that Mr. Lee has already had his DNA taken, but the orders must be made where the criteria are met.
[25] PROHIBITION – The maximum prohibition where Dangerous Driving and Driving while Prohibited are prosecuted by indictment is 10 years commencing upon release from imprisonment. The dangerous circumstances of the offences, the multi-car collision that resulted and the accused’s lengthy record including multiple prior convictions for the same offences all require that to protect the public Mr. Lee must be prohibited from driving anywhere in Canada for the maximum period of 10 years on each count. The prohibitions are concurrent to each other, but consecutive to any prior prohibition order that was outstanding at the time of the offences – s 320.24(9) of the Criminal Code. The prohibitions commence upon Mr. Lee’s release from custody.
[26] VICTIM FINE SURCHARGE – Mr. Lee’s incarceration and his lack of means of support on his release render him unable to pay a surcharge. The surcharge is waived.
[27] FIREARMS – There will be a s 109 order prohibiting you from possessing any firearms or related items set out in that section for life.
Delivered: 9 December, 2021. Justice Joseph F. Kenkel