Court File and Parties

Ontario Court of Justice Date: 2023 06 28 Information Number: 22-47100143

Between: His Majesty The King

— And —

Omar Bataineh

Before: Justice M.K. Wendl

Heard on: June 8, 2023 Reasons for Sentence Released: June 28, 2023

Counsel: B. Adsett, for the Crown D. Paquette, for O. Bataineh

Reasons for Sentence

WENDL J.:

[1] Omar Bataineh was found guilty after trial of failing to stop after an accident resulting in death contrary to section 320.16(3) of the Criminal Code. The Crown is requesting a sentence of 12-18 months jail while the defense is requesting a conditional sentence.

[2] On April 8th, 2022, Mr. Bataineh was driving southbound on Limeridge Road in the city of Hamilton. Mr. Bataineh had just picked up some food from McDonald’s when he struck and killed Mr. Glen Clark. There was no evidence of bad driving. Mr. Clark, who appeared to have been under the influence at the time of the collision, had been stumbling back and forth onto Limeridge Road.

[3] At trial, I found that Mr. Bataineh was aware that he struck Mr. Clark when it happened. Although it was nighttime, the road was well lit as was the location where Mr. Bataineh struck the accused. Mr. Bataineh applied the brakes to his vehicle when the incident occurred and the damage to the vehicle was significant enough for Mr. Bataineh to feel it when it happened. Shortly after striking the deceased Mr. Bataineh stopped and exited his vehicle. I found that the only explanation for stopping so quickly after the accident was for Mr. Bataineh to check the damage to his vehicle or assess the situation. After this stop, Mr. Bataineh then returned to his vehicle and drove by the accident scene again. The data collected from the vehicle shows that he slowed down when he drove by Mr. Clark on the road this second time, but he did not stop. Mr. Bataineh then drove to Burlington and ultimately, he returned home to Hamilton.

Analysis

[4] Omar Bataineh is 35 years old. He comes before this court without a criminal record and, until this incident, he ran his own restaurant. The numerous character letters filed on his behalf describe him as a support to his family, a good friend and valued member of his community. These letters also note he volunteered on a regular basis at the Hamilton Mountain Mosque since 2001. In his own letter to the court, Mr. Bataineh writes that he is remorseful for the events of April 8th, 2022.

[5] The dominant sentencing principles in this case are denunciation and deterrence. The Court of Appeal’s decision in Ramdass, also a fail to remain case, is particularly instructive:

The appellant is a building contractor, has no previous record and is described by credible witnesses as a person of good character. It must be added, however, that while Mr. Hall was killed instantly in this accident the appellant had no way of knowing this and leaving him on the road was not only contrary to the Criminal Code but contrary to any standard of decency and humanity.

In imposing the sentence of 9 months the learned trial judge emphasized the principle of general deterrence. In my view, he was right in so doing. General deterrence is a paramount principle in a sentence imposed for this offence. In the case of R. v. Andrew Roussy, released December 15, 1967, this Court said, albeit about a far different crime, the following:

But, in a crime of this type the deterrent quality of the sentence must be given paramount consideration and here I am using the term "deterrent" in its widest sense. The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act. [1]

[6] The Supreme Court also noted in R. v. M. (C.A.) that a denunciatory sentence is proper where it is necessary to reinforce society’s values:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". [2]

[7] However, even though denunciation and deterrence are the primary principles, every case must be decided on its own facts. As Justice Ditomaso stated in the Porter:

There is a continuum in hit and run cases where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. At the other end of the scale are those cases where the accused acted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability. (See R. v. Hindes, 2000 ABCA 197 at para. 56). [3]

[8] Although Mr. Bataineh is not at the high end of moral culpability, neither is he at the low end. This is not a case where Mr. Bataineh acted out of panic or an error in judgment. Mr. Bataineh, after he struck and killed Mr. Clark, stopped his vehicle a short while later, away from the scene, to examine the damage to his vehicle or to assess the situation. After making this assessment, Mr. Bataineh deliberately drove back to the scene, slowing down where the accident occurred, and deliberately drove away again for a second time. Mr. Bataineh then drove to Burlington before going home in Hamilton.

[9] Additionally, the Court has concerns about Mr. Bataineh’s insight into his behavior. While he states his remorse in the letter to the Court, in the pre-sentence report Mr. Bataineh described himself as a victim of the accident. Even though I have significant concerns about the content of the pre-sentence report, I believe the author’s concerns about Mr. Bataineh viewing himself as a victim are properly before the Court under section s. 721(3)(a) of the Criminal Code. That section states that a pre-sentence report must contain information on “the offender’s age, maturity, character, behaviour, attitude and willingness to make amends”. Clearly, Mr. Bataineh’s viewing himself as a victim has an impact on the assessment of Mr. Bataineh’s maturity, character and attitude. Moreover, and echoing his description of being a victim contained in the pre-sentence report, Mr. Bataineh in his letter to the court states: “I have reflected upon the event that unfolded and have reached the realization that I was an innocent individual caught up in an incident that had an unfortunate turn of events.” These comments demonstrate a clear lack of insight into the offense he committed. A lack of insight into one’s behavior is a relevant factor to consider on sentence as the Court of Appeal recently stated in Walker:

In our view, this case is distinguishable from Reeve. First, the issue in the present case was a lack of insight and not a lack of remorse. In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences: R. v. Hawley, 2016 ONCA 143, at para. 5, R. v. Shah, 2017 ONCA 872, at para. 8. Consequently, we do not give effect to this ground of appeal. [4]

[10] While the Court finds no fault in Mr. Bataineh’s driving nor attributes any fault to either party for the collision, in the words of Martin J.A., Mr. Bataineh exhibited a grave failure to comport with the standards of humanity and decency. Mr. Bataineh is at fault for abandoning a dying man – a man he struck with his vehicle – at the roadside, alone and without care. His moral culpability is amplified by returning to the scene and leaving again. While Mr. Bataineh has clearly been impacted by this accident, he is not the victim here. Glen Clark is the victim.

[11] Balancing the aggravating and mitigating factors, namely the remorse, his otherwise good character, the nature of the fail to remain and the lack of insight into his behavior, I sentence Mr. Bataineh to 12 months in custody, a three-year driving prohibition and 1 year of probation to assist with his rehabilitation.

Released: June 28, 2023 Signed: Justice M.K. Wendl

Footnotes

[1] R v Ramdass, [1982] OJ No 177 (ONCA); see also R. v. Gummer, [1983] O.J. No. 181 (ONCA), Martin, J.A. held, at paragraph 14 and 16:

"In our view, the failure of the respondent to stop his automobile when, as the trial judge found, he was aware that he had struck someone was perhaps the more serious of the two offences which the respondent committed. In failing to stop as required, the respondent exhibited a grave failure to comport with the standards of humanity and decency. In our view, the court has a duty to bring home the persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code."

[2] R v CAM, [1996] 1 SCR 500

[3] R v Porter, [2017] OJ No 5784 at para 49 (SCJ)

[4] R v Walker, [2021] OJ No 6817 (ONCA)