ONTARIO COURT OF JUSTICE
DATE: 2025 03 13
COURT FILE No.: Windsor 22-81100787
BETWEEN:
HIS MAJESTY THE KING
— AND —
AUSTIN YOUNG
Before Justice S. G. Pratt
Heard on 16 September 2024, 7 January 2025
Reasons for Judgment released on 13 March 2025
Emile Carrington ........................................................................ Counsel for the Crown
Alyssa Jervis ............................................................................. Counsel for the Defendant
Pratt J.:
[1] On 16 September 2024 the Offender Austin Young pleaded guilty to one count of failing to remain at the scene of an accident where bodily harm was caused. Submissions were received on 7 January 2025. These are my reasons for sentence.
Facts
[2] On 18 March 2022 at approximately 4:30 pm, the Victim Rechelle Atkins was walking on Tecumseh Road East with her seven year-old grandson, Matthew. They were passing the 7-11 store at the corner of McDougall Street. At the same time, the Offender was driving his father’s vehicle and leaving the store parking lot. The Victim and Offender converged at the lot exit. The Offender’s vehicle struck the Victim, knocking her to the ground. The vehicle ran over her legs and kept going. A witness pursued the Offender but lost track of him. Emergency services soon arrived and brought the Victim to hospital. Police spoke to witnesses and obtained the Offender’s license plate. They also obtained video footage from the 7-11.
[3] The license plate allowed police to find the registered owner of the vehicle, James Young, the next day. Mr. Young told police that his son used his vehicle regularly. The description of the driver given by witnesses matched Mr. Young’s son. The Offender was arrested. Following the provision of rights to counsel and a caution, the Offender denied driving at the time of the collision. He said he was home playing video games. He then gave a first name of someone he said drove the vehicle two to three times a week, and provided a description of this person. Finally, he told police he wouldn’t know how to live with himself if he had done something like this.
[4] This other driver was, of course, a fictional character created by the Offender to divert suspicion from him. It did not work, but that wasn’t for a lack of effort on the Offender’s part.
The Positions of the Parties
[5] For the Offender, counsel seeks a conditional sentence of 18 months to two years less a day, followed by probation and a driving prohibition. Counsel points to the mitigation of the plea, the positive Pre-Sentence Report, and the lack of any further legal issues since the incident.
[6] The Crown argues for a sentence of 9-12 months jail, 12-18 months probation, and a 3-5 year driving prohibition. The Crown acknowledges a conditional sentence of imprisonment is available but submits it would be inappropriate in the circumstances given the seriousness of the offence and the injuries to the Victim.
The Pre-Sentence Report
[7] I have reviewed a Pre-Sentence Report (PSR) authored by probation officer Jacqueline DiPietro. Without question, it is one of the more positive PSRs I’ve seen in some time. The Offender comes from a stable family with whom he enjoys a close relationship. He is employed. He has no issue with substances or alcohol. He lives with and cares for his grandmother.
[8] He suffers from no mental health challenges, aside from the stress that is related to the charge before me.
[9] The author notes the Offender’s remorse for his actions. According to the report, he thinks of the Victim every day and feels shame for what he did. He expressed hope that the Victim recovers from her injuries. The Offender’s father, interviewed for the PSR, also remarked on his son’s remorse.
[10] As I said, this is a very positive PSR. It describes a first-offender with a positive and pro-social background. It gives me every reason to expect the courts will not see him again.
Victim Impact Statement
[11] The Crown filed two Victim Impact Statements. One was from the Victim herself and one was jointly from her son Andrew and his wife. They reveal the pervasive impact this incident has had not only on the Victim but on the entire family.
[12] The Victim recalled the physical trauma she has endured. This has included surgery and physiotherapy. She has gone from being an active person who enjoyed playing with her grandchildren in the park to someone who now uses a walker and will continue to do so for the rest of her life. She wears braces on her knee, ankle, and wrist. She has had to rely on her husband and others to perform tasks she used to accomplish on her own. At just 54 years old at the time of the incident, a permanent reduction in mobility and independence must surely be, as the Victim herself says, “a hard pill to swallow.”
[13] Beyond the physical impact of the collision, the family has also dealt with the emotional impact it has wrought. Matthew, the Victim’s grandson, was traumatized by the incident. According to the Victim, the family had to convince him he wasn’t to blame for what happened. Understandably, the family’s grandchildren were frightened and upset about what happened, and about their grandmother being hospitalized.
[14] Andrew wrote of the fear they felt when police called shortly after they dropped Matthew off for a sleepover with the Victim. They were not told what had happened, but only that they needed to come to the scene to be with their son. Later, Matthew apologized to his parents, thinking he was at fault. They wrote of how difficult it has been to see the Victim go from being an active person to one dependent on others. The incident, they said, has destroyed her.
[15] There is little more I can say about how this offence has impacted the Victim and her family. They have been changed permanently by something that was entirely unprovoked and unexpected. But all is not lost. You still have each other. You can still all play a positive, loving role in each other’s lives for many years to come. Your future will be different, but it can still be a bright one. I wish you all the best.
Principles of Sentencing
[16] Section 718 and onward of the Criminal Code sets out the principles and factors a court must consider when imposing a sentence. A fit sentence must encourage respect for the law and protect society. It must also take rehabilitation into account and deter others from committing similar offences. Specifically, s. 718.2(a)(iii.1) states that an offence having a significant impact on the victim, particularly considering their age, health, and personal circumstances, shall be deemed to be an aggravating factor deserving of an increased sentence.
[17] Further, a court should only consider custody when other options do not meet the requirements of the case. The appropriateness of non-custodial sentences (or, I would add, non-incarceral sentences) should be considered for all offenders, particularly those of Indigenous background. Finally, a sentence must always be proportionate to the gravity of the offence and the blameworthiness of the offender.
[18] On the issue of the Offender’s Indigenous background, I have considered that as a relevant factor in my analysis. The conclusion I come to, however, is that it is not a significant determinant of sentence. In the Offender’s case, while he has Indigenous heritage, it is difficult to draw any connection between that heritage and his offence, or even between his heritage and his current life circumstances. His upbringing does not appear to have been affected by the damage of colonialism or residential schools; on the contrary, if his heritage has had any effect, it has been to dissuade him from consuming illicit substances.
The Offence
[19] The offence enacted through s. 320.16(2) of the Criminal Code is a curious creature. Parliament views leaving the scene of an accident where bodily harm has been caused as objectively more serious than the same conduct committed without such injury. Failing to remain simpliciter attracts a maximum punishment of 10 years’ jail when prosecuted by indictment; failing to remain after bodily harm is caused attracts a maximum punishment of 14 years’ jail and specific minimum sentences that depend on the number of prior convictions, if any. While the exact sentences have changed over the course of several amendments, the simpliciter / bodily harm distinction has always been in place.
[20] The rationale for this difference must be rooted in the danger posed by leaving someone injured and not remaining to help. Leaving the scene of an accident where injury was caused can easily turn a difficult situation into a tragedy. If the fleeing driver is the only other person in the area, an injured person may be left alone and unable to seek help. In that sense, it is entirely understandable and appropriate that penalties in such cases would be harsher.
[21] The underlying conduct, however, remains the same. A driver is involved in an accident and does not stay at the scene. Why would Parliament seek to criminalize this behaviour in the first place? There are multiple answers.
[22] First, an involved party fleeing the scene hinders law enforcement’s ability to investigate the accident. It is difficult, if not impossible, to determine a sequence of events, or the relative positions of involved vehicles, or even how injuries were caused, when one of the vehicles or parties is no longer present. Fleeing the scene can frustrate the important societal interest in having motor vehicle collisions investigated efficiently and completely. It can prevent police from laying appropriate charges, like dangerous operation or impaired operation. The need to investigate collisions effectively is related to the notion that driving is not a right but a regulated privilege.
[23] Secondly, failing to remain at the scene can frustrate important civil remedies for poor driving. It would be unknown if the fleeing driver carried sufficient insurance at the time of the accident. Meritorious civil actions against a responsible party could not be brought if the driver could never be identified. As a result, all drivers end up paying higher insurance rates to cover damage caused by unidentified parties.
[24] In summary, then, the reasons for criminalizing the failure to remain at the scene of an accident are clear. Likewise, the increased punishments for doing so when bodily harm is caused reasonably reflect the increased risk created in those situations.
Caselaw
[25] The case of R. v. Coates, 2023 ONSC 3392 is of great assistance. In that case, an off-duty police officer was involved in a serious collision with a motorcyclist. He did not remain at the scene, but only pulled over nearly 4km away to call his parents and wife. He did not call for help for the motorcyclist. After a trial, Coates was acquitted of charges of impaired and dangerous operation but convicted of failing to remain. An important point in this case is that Coates was convicted of failing to remain simpliciter despite the fact that the motorcyclist suffered very serious injuries.
[26] Justice Dawe (then of the Superior Court of Justice) reviewed the law surrounding the offence of failing to remain and considered various sentencing authorities. In imposing an 18-month conditional sentence, the Court took into account the difficulty custody would pose for a police officer, and also the specific level of moral blameworthiness borne by Coates.
[27] I echo Justice Dawe’s observation and reminder that an offender convicted of this charge can only be sentenced for their actions in leaving the scene. They cannot be sentenced for the collision itself, or for their driving. As His Honour noted at paragraph 41:
Put simply, an offender who, like Mr. Coates, has been found not guilty of any criminal responsibility for the accident itself, cannot be sentenced with the objective of punishing him for causing the accident.
[28] I would equate an offender who was acquitted of other offences to an offender who, as here, has only pleaded guilty to failing to remain and will not be prosecuted for any conduct related to the collision itself.
[29] Returning to Justice Dawe’s decision, His Honour reaffirmed the above point at paragraph 55:
It is important to note at the outset that Mr. Coates is being sentenced for his conduct in failing to stop and render assistance to Mr. Sweeney after the collision. He is not being sentenced for causing the accident in the first place. Indeed, I acquitted him on the charges that he faced arising out of the accident itself.
[30] This creates an emotionally difficult situation for the Victim and her family. The Victim did nothing wrong but is left to live with the aftermath of the collision. It is entirely reasonable to want someone to be held accountable, both for her injuries and for the family’s emotional and psychological damage. But the Offender was not prosecuted for his role in the collision. He is only being sentenced for leaving the scene. I will return to this point, and to the impact of his flight, later in these reasons.
[31] The other cases filed by counsel support the opposing positions that driving offences, including failing to remain, can attract conditional sentences and incarceral sentences. R. v. Bleck, 2024 ONSC 3461 involved an offender who was convicted after trial of failing to remain where bodily harm was caused and driving while prohibited. The facts are very different from the case at bar. Bleck was far more culpable, and his actions following the collision underscore his sustained and focused desire to avoid responsibility. He also did not have the mitigation of a guilty plea. He was sentenced to 44 months’ jail for the failing to remain, and a further 10 months consecutive for driving while prohibited.
[32] The case provides useful propositions but is not factually similar. It confirms the seriousness of this offence, and the need to deter others from committing it. At paragraph 81 of the decision, Justice Tranquilli cited a decision of the Alberta Court of Appeal with approval and stated the following:
With this offence, there is a continuum of culpability in cases where an offender involved in an accident fails to stop to offer assistance. At the one end there are offenders who react out of momentary panic or an error in judgment and then take responsibility. At the other end of the spectrum are offenders who act with callous disregard and deception: Vanasse, at para. 24.
[33] I find the Offender falls closer to the lower end of the spectrum than he does to the higher end.
[34] Cases provided by the defence, including R. v Beedawia [2024] O.J. No. 1520 (S.C.J.) and my own decision in R. v. Desjardins, 2023 ONCJ 61, show that conditional sentences are sometimes appropriate, even for serious driving offences.
[35] Taking all of the caselaw provided into consideration, the guiding principle I am left with is that no two cases are alike, and a sentencing court must consider the unique circumstances before it to determine a fit and proper punishment.
Aggravating Factors
[36] Section 320.22 of the Criminal Code sets out several statutorily aggravating factors a court must consider when sentencing for this offence. I have reviewed that section. None of the listed factors are present in the case before me.
[37] The primary aggravating feature of this case is the Offender’s attempt to divert suspicion from himself by lying to police. He claimed not to be driving at the relevant time. More than simply saying it wasn’t him, the Offender concocted a story. He said he’d been home playing video games at the time of the accident. He told police about another person who drove his father’s car regularly. He made up a name and even a physical description of this person. To this fiction he added the comments that he wouldn’t know how to live with himself if he had done it, and that he couldn’t imagine leaving the scene of an accident.
[38] This is the first occasion where the Offender turned out to be very lucky.
[39] At the time he spun his tale, he was already under arrest. He matched the description of the driver given by witnesses at the scene. His father had confirmed he was driving the car. Despite his best effort, police saw through his story and disregarded it immediately. Had they not done so, and had they needlessly expended resources searching for this imaginary culprit, the sentence I impose today would have been different.
Mitigating Factors
[40] There are several mitigating factors present.
[41] The Offender is a young man. He was 25 years old at the time of the incident and is 28 today. Certainly old enough to know right from wrong and to be responsible for his actions, but a young man with a future ahead of him just the same.
[42] He has no prior record.
[43] As I noted, the PSR is extremely positive. By all accounts, the Offender is a productive, law-abiding member of society who made one awful mistake. He must be held accountable for that mistake, but I cannot ignore his background and the excellent rehabilitative prospects he holds.
[44] Finally, his plea of guilt is a sign of remorse and is itself a mitigating factor. That said, the mitigation from the plea is limited in this case. This was not an early plea. Really, it could not have come much later in the proceedings. A trial date was set, and the witnesses were prepared for testifying. The guilty plea only came on the first day of a two-day trial. For 2 ½ years, the Victim and her family had this hanging over their heads. As the trial date approached, no doubt they began to feel nervous. It was not until everyone was present on the first day set for trial that the Offender entered a guilty plea. While I must allow some mitigation from the plea, I find it to be minimal in this case.
Analysis
[45] The conduct of the Offender that day, and the day that followed, is gravely serious. By leaving the scene of a serious accident, he hindered law enforcement’s ability to investigate that accident and work to keep our roads safe. But for someone getting the license plate, and security video from the 7-11, he may never have been found out. When he was confronted soon after, he lied to cover up his involvement. This is why the Crown reasonably seeks a jail sentence.
[46] I turn now to the second occasion where the Offender is very lucky.
[47] His collision with the Victim took place on a busy street in the afternoon. In the moments that followed, witnesses immediately called for help. Police and ambulance quickly arrived to render assistance. The Victim was taken to hospital for care. All of this is to say that the condition of the Victim was not worsened by the Offender leaving the scene. He is extremely lucky there were others around who were able to assist the Victim. Had they not been there, and had the Victim been left to lie injured on the ground for any length of time, I would not have hesitated to send the Offender to jail. I also note that the Offender likely didn’t know help would arrive that quickly when he fled. He simply left. That decision increases his moral blameworthiness.
[48] I remind myself that I am sentencing the Offender only for his flight. I do not sentence for his role in the accident or for his causing the Victim’s injuries. It is for leaving the scene after being involved in what was clearly and obviously a serious accident that I impose sentence.
[49] Counsel for the Offender seeks a conditional sentence of imprisonment. As many courts have said in the past, a conditional sentence, despite being served in the community rather than a jail, can be punitive. It can achieve the objectives of denunciation and deterrence. Whether it does in a given case is fact-specific.
[50] A court can only impose a conditional sentence if it meets the criteria set out in s. 742.1 of the Criminal Code. The Crown concedes such a sentence is legally available but argues it would not be appropriate in these circumstances. I take that to mean that it would not be consistent with the purpose and principles of sentencing and that it could endanger the safety of the community.
[51] Dealing with the latter issue first, I find a conditional sentence could be crafted to address any risk to the community the Offender may currently pose. He has no prior criminal record and no history of breaching court orders. The offence before me was an isolated event. I do not find the Offender poses such a risk to the community that he could not be trusted to serve a conditional sentence. Any risk he may pose can be addressed through proper conditions and the additional order of a driving prohibition.
[52] Regarding the first issue, whether a conditional sentence would meet the purpose and principles of sentencing, it must be remembered that a conditional sentence is a custodial sentence. As I have told many offenders in previous cases, a conditional sentence is a jail sentence they are given the opportunity to begin serving in the community. It is up to them if they finish it that way. If an offender breaches any term of a conditional sentence, the presumption is they will serve the unexpired portion of the sentence in a jail cell.
[53] Core sentencing principles include denunciation and deterrence, but they also include rehabilitation, reintegration, and restraint. A court should not be afraid to sentence someone to custody in an appropriate case, but it should never do so lightly.
[54] Bearing in mind all the guiding principles of sentencing set out in the law, I find it would be possible to craft a conditional sentence that meets the competing objectives of this case. It would hold the Offender accountable while recognizing the mitigating factors that are present.
[55] The sentence will be as follows:
(1) The Offender will be sentenced to a term of imprisonment of 18 months, to be served as a conditional sentence. Conditional sentence terms, in addition to the statutory terms, will be:
(a) Report in person to a supervisor within two working days of today’s date and after that at all times and places as directed by the supervisor or anyone authorized by the supervisor to assist in your supervision;
(b) Co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request;
(c) You will live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;
(d) The home confinement condition will be in effect for the first 12 months of the sentence. You are to remain in your residence or on the property of your residence at all times except:
(i) Between 12pm – 4pm each Saturday in order to acquire the necessities of life;
(ii) For any medical emergencies involving you or any member of your immediate family, which includes your grandmother;
(iii) For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments;
(iv) With the prior written approval of the supervisor. The written approval is to be carried with you during these times;
(e) Following your home confinement, for the balance of your order, you will remain in your residence or on the property of your residence daily between the hours of 11pm and 6am except:
(i) for any medical emergency involving you or any member of your immediate family, which includes your grandmother;
(ii) travelling directly to, from, or while at work or school;
(iii) with the prior written permission of your supervisor.
(f) Do not contact or communicate in any way, either directly or indirectly by any physical, electronic or other means with Rechelle Atkins or any member of her family;
(g) Do not be within 100m of any place where you know the person named above to live, work, go to school, or any place you know the person to be except for required court attendances;
(h) Do not buy, possess or consume alcohol or other intoxicating substances;
(i) Do not possess or consume any unlawful drugs or substances except with a valid prescription in your name or those available over the counter;
(j) Do not occupy the driver’s seat of any motor vehicle.
(2) Following completion of the conditional sentence, the Offender will be placed on probation for 12 months. Probation terms, in addition to the statutory terms, will be:
(a) Do not contact or communicate, in any way, directly or indirectly, by any physical, electronic or other means, with Rechelle Atkins or any member of her immediate family;
(b) Do not be within 100m of any place where you know the person named above to live, work, go to school, or any place you know the person to be except for required court attendances.
(3) The Offender will be prohibited from operating a motor vehicle on any road, street, highway, or other public place anywhere in Canada for a period of three years.
(4) The Offender will provide a sample of his DNA to the Windsor Police for inclusion in the national DNA databank, on or before 31 March 2025.
(5) The Offender will pay a $200 Victim Surcharge within 90 days.
[56] As I said earlier, I wish the Victim and her family the best in the future. I likewise wish the same for the Offender and his family. I am confident I will not see the Offender in court again.
Released: 13 March 2025
Signed: Justice S. G. Pratt