ONTARIO COURT OF JUSTICE

CITATION: R. v. Creft, 2022 ONCJ 572

DATE: 2022 12 09

COURT FILE No.: 21-15001123

Toronto Region – Old City Hall

BETWEEN:

HIS MAJESTY THE KING

— AND —

KEVIN CREFT

Before Justice H. Pringle

Heard on December 7, 2021; January 31, 2022; June 29, 2022; October 25, 2022

Oral Reasons for Judgment released October 25, 2022

Written Reasons for Judgment released on December 9, 2022

Erin Winocur........................................................................................ counsel for the Crown

J. David Ekpenyong................................................................... counsel for the defendant

PRINGLE J.:

FACTUAL OVERVIEW

[1] Mr. Creft, back in September 2020, was driving someone else’s car in an underground parking garage. He did not have a driver’s licence at the time and, clearly, did not know what he was doing. There were others in the car that Mr. Creft was trying to impress with this behaviour.

[2] In the garage, he was haphazardly turning on windshield wipers and turning signals, stopping and then accelerating at a high rate of speed. He lost control at the same time two pedestrians stepped out of an elevator vestibule. Mr. Creft drove through the vestibule doors, hitting one of these pedestrians. She was thrown up into the air and then pinned up against a wall.

[3] A hot water pipe burst and the vestibule area was significantly damaged. Everyone, including Mr. Creft, fled from inside the car. The victim was left, pinned against the wall, severely injured, and crying fruitlessly for help. The defendant never returned to see if she needed help, although he did not go far and was cooperative with police.

[4] While police were speaking with Mr. Creft on scene, they noticed the smell of alcohol on his breath. Breath samples showed his blood alcohol level to be 19 mg of alcohol in 100 ml of blood. This was below the legal limit of 80 mg of alcohol in 100 ml of blood.

[5] Mr. Creft was not arrested until January 17, 2021. Early in the criminal court proceedings, he expressed the wish to plead guilty. He did, on January 31, 2022 to both counts laid against him.

[6] The Crown elected summarily, rendering the maximum penalty available for both charges as a fine of no more than $5000 or prison for no more than two years less one day or both, and a driving prohibition of not more than three years.

[7] The victim has sued Mr. Creft. Her life has been forever changed by his crime. Her nose and right leg were broken. Her left leg was crushed, deformed and scarred. She was hospitalized for six days. The physical and psychological injuries have been profound.

[8] Some days, she lacks the will to live. The victim developed anxiety and depression. She was unable to work for ten months. Her schedule filled up with surgeries and rehabilitation appointments.

[9] Upon returning to work, the victim found the work too challenging and her ability to concentrate impaired. She had to stop working and is now on long-term disability. She continues to have ongoing pain, nightmares, frequent post-concussive headaches, and social anxiety. As per the Presentence Report:

According to (the victim), the psychological affect is worse than any of the physical or emotional pain she experienced. She recounts the moment of the current offence, believing at the time that she was going to die. She recalls the smoke coming out of the car and fearing that the car was going to explode at any moment. She recalls seeing the extensive injury to her leg and fearing for her life. She cannot make sense of the accident due to the unexpected nature of it – simply exiting an elevator in a parking garage. She explains that as a result of this offence, she has lost the meaning of life.

[10] Getting behind the wheel of a car, unqualified to drive, to impress some friends has wreaked havoc on the victim’s quality of life. To his credit, Mr. Creft recognizes his wrongdoing and has fully accepted responsibility for this. He pled guilty to both Dangerous Operation Causing Bodily Harm (320.13(2) and Failing to Stop at the Scene of an Accident involving Bodily Harm.

[11] This has been Mr. Creft’s first experience with the criminal justice system. He had just turned twenty-three when he committed these crimes. He was brought up in a loving, supportive, stable family environment, and until this happened, was firmly on a prosocial path. He has worked with the same company since 2016 and still lives at home.

[12] His community supports consistently and resoundingly described these crimes as out of character. A presentence report showed Mr. Creft’s insight into his offending and true remorse for his actions:

In addressing the current offence, the subject takes accountability and understands the severity of his actions. He recalls the events that took place in full detail and does not have any lapses in memory. The subject states there is no excuse for what he did, adding that “it happened so quickly”. … The subject asserts to be working on himself and relays that he never wants to find himself in a similar situation. He describes the current offence as eye-opening; he is more aware of who he associates with and believes has learned from his mistake. The subject reflects on the offence and acknowledges that the offence may have a lasting impact on everyone involved, specifically the victim.

PRIMARY OBJECTIVES OF SENTENCING

[13] Every sentence imposed should contribute to respect for the law and to maintaining a just, peaceful, and safe society. Fit and just sentences should have one or more of the following objectives:

• denunciation;

• general and specific deterrence;

• separation of offenders from society, where necessary;

• rehabilitation;

• promotion of a sense of responsibility in the offender;

• an acknowledgment of harm to victims, and;

• reparation, where appropriate, to victims and community.

[14] A sentence imposed for the offence of Dangerous Driving Cause Bodily Harm must emphasize, most strongly, the objectives of general deterrence and denunciation. As the Court of Appeal held in R. v. Currie, 2018 ONCA 218 at paras. 11-12:

…..the appellant argues that the sentencing judge erred in imposing a sentence on a youthful first offender in order to send a message of deterrence to the community. We do not accept this.

This was a serious accident that will have devastating lifelong physical and psychological impacts on its victims. The appellant's counsel on sentencing acknowledged that specific and general deterrence would play a role in the sentence. This offence is frequently committed by first-time offenders and young persons, like the appellant, of otherwise good character. Particularly because of this factor, it is essential that courts send a message to young people, to protect both them and the public from the serious consequences of such conduct. Denunciation and deterrence must be a paramount consideration.

[15] Mr. Creft’s sentence must be proportionate to the gravity of his crimes and his degree of responsibility in committing them. His sentence must, meaningfully, reflect the harm his offending caused.

APPLICABLE RANGE AND THE POSITION OF THE PARTIES

[16] The Court of Appeal held, in R. v. Markos, 2019 ONCA 80 at para. 26:

This court has identified sentences for dangerous driving causing bodily injury as normally ranging up to two years less one day, with more substantial sentences available in certain cases: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 43.

[17] Paragraph 43 of R. v. Rawn, 2012 ONCA 487, upon which the Court relied above, said:

In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range for impaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146, at paras. 59-61. More substantial sentences were available in certain cases; in Van Puyenbroek itself a three year sentence was upheld.

[18] I accept this as the applicable range. I also accept that the defendant’s sentence for Fail to Remain should be served consecutively to the Dangerous Driving Cause Bodily Harm count: see, for example, R. v. Anderson, [1987] O.J. No 2477. It is a separate, distinct act from the driving offence. Given this conclusion, the defendant’s failure to remain will not be employed as an aggravating factor.

[19] The Crown sought a global jail sentence of between eighteen and twenty-two months, followed by a five year driving prohibition. She argued that between twelve to fourteen months in jail was merited for the Dangerous Driving offence, and between six to eight consecutive months in jail for the Fail to Remain.

[20] The defence argued for, globally, a suspended sentence, a fine, or an intermittent sentence.

AGGRAVATING AND MITIGATING FACTORS

[21] Factors that aggravate the defendant’s sentence are:

• That he was driving while not permitted to operate a motor vehicle: s. 320.22(g);

• The serious property damage his offending caused;

• The lifelong physical and emotional trauma he caused the victim.

[22] I have not employed the low levels of alcohol in his bloodstream as an aggravating factor. He was below the legal limit, far below the statutorily aggravating limit, and I cannot infer, on this record, that his low level of alcohol must have impaired his driving.

• Factors that mitigate the defendant’s sentence are:

• His youth and lack of prior criminal antecedents;

• His stability in the community, including an excellent work history for someone of his age;

• His guilty plea, which spared the victim from re-living her trauma in court;

• The strong prosocial supports that surround him;

• The insight he has into his offending, and the remorse that he clearly has for his actions.

[23] I appreciate that sentencing ranges are guidelines and not straitjackets. That said, the defence position of suspended sentence or fine is unfit, given the need to emphasize general deterrence and denunciation and the seriousness of Mr. Creft’s offences.

[24] With respect to that denunciatory and deterrent need, as per the Court of Appeal in Rawn, supra, at paras. 41 and 42:

The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes: R. v. McMertry (1987), 21 O.A.C. 68, at para. 11. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.

Here, Ms. Rawn's driving involved speeds of nearly three times the speed limit in a residential area. Her conduct caused grave personal injuries to seven people, particularly to Ms. Snyder, and endangered the lives of many others in the community. The gravity of the consequences of Ms. Rawn's driving - serious personal injury - must be given considerable weight in determining a fit sentence: Nusrat, at paras. 65-67.

[25] The appellant in Rawn had received a suspended sentence for seven counts of dangerous driving causing bodily harm. She had caused grave, life-threatening injuries to one victim, who remained hospitalized for two months and in bed for one further year. The other six victims were also injured, albeit less seriously.

[26] The Court of Appeal determined suspended sentence and probation was unfit, because it failed to give proper effect to the primary objectives of general deterrence and denunciation. Mr. Creft’s sentence must emphasize those same objectives. As per para. 33:

General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one: see R. v. Nusrat, 2009 ONCA 31, 244 O.A.C. 241. Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-5.

[27] In order to properly express denunciation, general deterrence, and the seriousness of the offence, the Court of Appeal overturned the suspended sentence and imposed nine months of incarceration.

[28] In the case at bar, the right sentence for both offences is a global sentence of seven months in jail. This quantum, in my view, properly expresses the seriousness of the crimes and the paramountcy of general deterrence and denunciation. It balances aggravating factors such as the devastating effect on the victim, with mitigating factors such as Mr. Creft’s strong rehabilitative prospects.

CONDITIONAL SENTENCE ANALYSIS

[29] Having determined a reformatory sentence is fit, the following four factors determine whether that sentence can be served in the community:

• The offender must be convicted of an offence that is not punishable by a minimum term of prison;

• The court must impose a term of imprisonment of less than two years;

• The safety of the community would not be endangered by the offender serving their sentence in the community, and;

• A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in 718 to 718.2.

[30] The first two criteria are met. I turn to the question of whether permitting Mr. Creft to serve his sentence in the community would endanger our community.

[31] Mr. Creft has been on bail without incident. He has no prior criminal record. He is stable in the community. He has positive family and social supports. He has insight into his own offending, which is an important step in ensuring history does not repeat itself.

[32] I am satisfied that the third criteria has been met on the evidence in this case.

[33] Finally, I considered whether permitting Mr. Creft to serve a sentence in the community would be consistent with the fundamental purpose of sentencing and the primary objectives his sentence must achieve. I am satisfied that, in his case, it would. Paras. 102 and 107 of R. v. Proulx, 2000 SCC 5 have been applied here:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence that a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.…Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders….

[emphasis added]

[34] A conditional sentence, in this case, for this offender, is consistent with the fundamental purpose of sentencing. In this case, a conditional sentence can and will give effect to the objectives of sentencing that are paramount.

[35] Mr. Creft will be permitted to serve his incarceration conditionally, in the community. The conditions imposed upon him are designed to punish, to send a message, to protect the community from further driving offences, and to assist him in his continued rehabilitation.

SENTENCE IMPOSED

[36] I assessed the correct jail sentence for Mr. Creft to be seven months. Because a conditional sentence is typically lengthened to serve punitive interests, Mr. Creft is sentenced to a global sentence of twelve months to be served in the community on conditions.

[37] More specifically, he will serve nine months conditionally for the offence of Dangerous Driving Cause Bodily Harm. He will serve three months, consecutively, for the offence of Fail to Remain. A driving suspension and ancillary orders will also be imposed.

Released: December 9, 2022

Signed: Justice H. Pringle