COURT FILE NO.: 11-30000374-0000
DATE: 20120525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
ROBERT CLIFFORD SMITH
Andrew Pilla, for the Crown
Ed Schofield, for the Accused
HEARD: April 4 and 5, 2012 and May 2 and 3, 2012
Kelly j.
REASONS FOR SENTENCE
[1] It would be terribly wrong to underestimate and difficult to exaggerate the magnitude of the tragedy caused by Mr. Robert Clifford Smith’s criminal conduct in the early morning hours of February 15, 2010. His actions took the life of Ms. Mahboba Attayee and forever altered, both physically and emotionally, the lives of the surviving five victims and their extended family members.
[2] It is next to impossible for me to find anything redeeming about Mr. Smith. He has an extensive criminal record that covers 24 years. It involves 32 sentencing hearings in respect of 168 convictions. He is a recalcitrant recidivist. He has never been deterred from committing criminal offences. He has little or no regard for the laws of this country or anything other than his own selfish motivations.
[3] The Crown has asked that I impose a sentence of life imprisonment in circumstances where it is not a mandatory minimum. The offender’s counsel has asked that I impose a sentence of less than 10 years’ imprisonment. I have carefully considered these submissions, the circumstances of the offence and the circumstances of the offender. There is only one sentence that would be fit in this case and only one sentence that can adequately protect the public from the offender’s carnage: Life imprisonment.
Introduction
[4] Mr. Smith was charged with 25 criminal offences arising from various break and enters and a collision resulting in the death of one person and serious bodily harm to five others. After hearing from several witnesses and making a number of admissions, Mr. Smith changed his plea on 19 of those offences from “not guilty” to “guilty”. Six of those offences included dangerous driving causing death and dangerous driving causing bodily harm.
[5] Following submissions, I found Mr. Smith guilty of criminal negligence causing death and five counts of criminal negligence causing bodily harm. Mr. Smith now comes before me for sentencing.
The Facts
[6] The facts were set out in my finding of guilt regarding criminal negligence cause death but bear some repetition here.[^1]
[7] On or about February 10, 2010, Mr. Smith stole a Dodge Caravan belonging to Mr. Robert Nunes. Over the next few days, Mr. Smith broke into Glamorous You, Chopstick Delight, Portugrill Restaurant and Auto Zone Central Inc. He stole various items and money from all but Portugrill Restaurant. He also stole gasoline from a Shell Station and on February 14, 2010 he purchased gasoline from an Esso Station using funds stolen from Auto Zone Central Inc.
[8] Shortly after Mr. Smith was at the Esso station, he attended at the Herbal Magic Store located at Midland Avenue and Ellesmere Road in the City of Toronto. Two people passing by observed Mr. Smith in the midst of conducting a break and enter. They reported their observations to the police and while doing so, they observed Mr. Smith depart the parking lot and proceed southbound on Midland Avenue. They followed the van that Mr. Smith was driving.
[9] Police were notified of the break and enter in progress. One police cruiser occupied by Officers Seaban and Guy happened to be heading north on Midland Avenue when they passed the van driven by Mr. Smith. They immediately made a u-turn and followed him. A second cruiser occupied by Officers Poirier and Machell was also heading northbound on Midland Avenue at the time they received the radio call. They, too, made a u-turn and followed the van and the first cruiser.
[10] Mr. Smith made a right hand turn at a fast pace onto Lawrence Avenue to head in a westerly direction. The officers who followed the van described the speed of travel along Lawrence Avenue to be between 100 kms. per hour up to 160 kms. per hour. Both cruisers had activated their emergency lights and sirens. They were also traveling at a high rate of speed but stopped at each intersection as required.
[11] The area between Midland and Pharmacy Avenues on Lawrence Avenue is occupied by low rise apartment buildings, small businesses such as restaurants, a church, school, etc. All officers described the traffic as light due to the fact that it was after midnight when the chase ensued.
[12] At Kennedy Road and Lawrence Avenue, Mr. Smith failed to stop at a red light. A car driven by Mr. Steven Straker was legally traveling through this intersection. Out of the corner of his eye, he noticed the van driven by Mr. Smith. He concluded that the van was not going to stop for the red light and that he was going to be hit. He slammed on his brakes but did not escape collision. The van clipped his front bumper causing approximately $900 in damages. Mr. Smith did not stop the van following this collision and continued traveling westbound on Lawrence Avenue.
[13] As Mr. Smith approached the intersection at Pharmacy Avenue, he drove the van into the eastbound lanes of Lawrence Avenue just before entering into the intersection. He did so because all lanes traveling westbound on Lawrence Avenue were occupied. There did not appear to be any traffic traveling eastbound when Mr. Smith moved his van into that lane. There was no evidence that any cars were traveling either northbound or southbound when Mr. Smith entered the intersection.
[14] The left turning lane was occupied by a Honda Accord that contained the six female victims of the collision caused by Mr. Smith. When the light turned green, the Honda proceeded to make a left turn as it was entitled to do. The van driven by Mr. Smith was in the eastbound lane traveling west and collided with the Honda. It is estimated that the van was traveling at 100 to 102 kms per hour at the time of the collision.
[15] The Honda was pushed a number of feet over the median and finally came to rest in the westbound lanes on Lawrence Avenue. The van spun approximately 180 degrees so that it was facing eastbound in the eastbound lanes. The police cruisers arrived within seconds and arrested Mr. Smith.
[16] The six women in the Honda were ultimately removed from it and were taken to hospital. The driver of the Honda died and the five other women suffered bodily harm.
Issues
[17] The following are the questions that arose during the sentencing hearing that require analysis:
a. Did the police use excessive force when arresting Mr. Smith? If so, should this be considered a mitigating factor?
b. What is the appropriate sentence?
c. Should Mr. Smith be given credit for time served on a 2 for 1 basis?
d. Should Mr. Smith’s eligibility for parole be delayed?
Analysis
a. Did the police use excessive force when arresting Mr. Smith? If so, should this be considered a mitigating factor?
[18] There is no dispute but that Mr. Smith suffered a hip injury during this incident. The question that I must answer for the purposes of sentencing is whether the injury was caused by excessive force used by police and if so, should it be considered a mitigating factor?[^2]
[19] A sentence can be reduced in light of state misconduct. The Supreme Court of Canada has held that,
… a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach.[^3]
[20] Medical evidence has been provided that shows Mr. Smith was injured as a result of the occurrence. He was admitted to the Sunnybrook Health Sciences Centre on February 15, 2010 as a trauma patient. The diagnosis of his injury was as follows: “right hip dislocation and acetabular fracture”. He underwent surgery for the acetabular fracture and responded well. He was discharged from the hospital on February 23, 2010.
[21] Dr. Hans J. Kreder, M.D., M.P.H., F.R.C.S. (C)[^4] testified at the sentencing hearing. He had reviewed documents regarding the collision impact, including the high rate of speed that the van was traveling. He also examined the circumstances of the police takedown and described it as a “hard tactical takedown”. Lastly, he reviewed the relevant imaging studies of the injury.
[22] Dr. Kreder concluded that Mr. Smith’s hip injury resulted from a “high energy impact”. He said as follows:
The specific fracture pattern sustained by Mr. Smith is incompatible with any conceivable force that any group of individuals could apply to another individual with both parties at or about ground level (i.e. eliminating the possibility of a fall or impact from a significant height). Conversely, this type of fracture pattern is entirely consistent with, and indeed quite common after a motor vehicle crash such as that sustained by Mr. Smith. … It is my opinion that these injuries are incompatible with any conceivable type of police takedown.
[23] In my view, the opinion of Dr. Kreder is consistent with the evidence. The van driven by Mr. Smith was involved in a significant motor vehicle crash as he was driving at a high rate of speed. The airbags in the van were activated. The injury is consistent with the observations of Detective Constable Richard MacKinnon who observed the injury on scene. He testified that Mr. Smith’s leg appeared to be broken and looked like an “accordion”.
[24] There is evidence from civilian witnesses that they observed Mr. Smith get out of the van and take a number of steps before being “taken down” by the police. For example, Mr. Paul Liem was at the intersection at the time of the crash. He testified that he observed Mr. Smith exit the van and thought he was drunk because he was stumbling. He denies that he saw the police beating Mr. Smith.
[25] Several other civilians[^5] who were on scene at the time of the crash testified at the sentencing hearing. None of them observed the police beating Mr. Smith.
[26] All police officers deny that Mr. Smith was beaten upon arrest. It appears that four officers participated in securing Mr. Smith. Initially, Mr. Smith was struggling upon arrest. He was lying on his hands and refusing to obey police commands to put his hands behind his back. Two officers (Guy and Levesque) testified that they executed “distractionary blows” to the face of Mr. Smith in an attempt to secure his hands. Police Constable Guy testified that she struck Mr. Smith in the face a number of times. It worked and Mr. Smith was cuffed immediately to the rear.
[27] Counsel submits that I cannot rely on the evidence of the Officers as accurate. In particular he submits Officers Guy and Levesque could not both have punched Mr. Smith and one would have had to have seen the other punch Mr. Smith which they denied. Further he submits that Officer Guy’s evidence is completely unreliable as she testified that Mr. Smith had driven into the east bound lanes a number of times before entering the intersection at Pharmacy Avenue. This was contradicted by others. As such, Counsel submits that the officers were lying. I do not agree.
[28] I accept the evidence of both Officers about the arrest. It was complete mayhem after the collision and the officers were trying to detain Mr. Smith who had just eluded them on a chase of approximately four kilometres. I also accept they were concentrating on Mr. Smith and not on what other police officers were doing when and to whom.
[29] I find that Officer Guy was simply mistaken about Mr. Smith’s van entering the eastbound lanes on a number of occasions prior to entering the intersection at Pharmacy Avenue. Despite that, I do not find that she is unreliable. She admitted punching Mr. Smith and her evidence regarding other issues was not contradicted.
[30] Mr. Eric Wood was in an apartment building to the north and west of where the crash occurred. He testified that he saw three officers approach the van, pull the driver out of the van and start “beating” on the driver. Three to four officers were kicking and punching Mr. Smith. He was on his apartment balcony which was approximately 70 feet from the accident. In cross-examination, Mr. Wood agreed that there were people obstructing his view of Mr. Smith.
[31] I do not accept the testimony of Mr. Wood regarding the beating. Although I have no doubt that Mr. Wood believes that Mr. Smith was beaten, I prefer the evidence of those witnesses who were present immediately upon impact and made observations from ground level. Put simply, they were in a much better location to make such observations.
[32] I should add that it might be possible for Mr. Wood to have believed that Mr. Smith was being beaten from his viewpoint and due to the chaotic and dynamic nature of the situation. Afterall, four officers descended on Mr. Smith while he was on the ground and it may have appeared to Mr. Wood that they were beating him rather than using reasonable force to affect a lawful arrest.
[33] Further, I reject the defence submission that Mr. Smith incurred the hip injury due to police brutality and not the collision. This, Counsel submits, is supported by the evidence of many who testified that Mr. Smith was able to walk following the crash and therefore his hip must have been dislocated due to police misconduct. Dr. Kreder testified that it was possible that Mr. Smith could have taken such steps with his hip dislocated. Such steps and being forced to the ground by police may have aggravated such injuries, but not caused them. I accept this evidence.
[34] I do not find that the hip injury was caused by excessive force used by the police. As such, I do not find it to be a mitigating factor in my consideration of the appropriate sentence in these circumstances.
b. What is the appropriate sentence?
[35] Section 718 of the Criminal Code sets out the objectives of sentencing. The fundamental purpose of sentencing is to “contribute, along with crime prevention initiatives, a respect for the law and the maintenance of a just, peaceful and safe society”. Further a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In my view, the most relevant considerations in these circumstances are: deterrence, denunciation and protection of the public.
The Mitigating Factors
[36] Mr. Smith is 43 years of age. He is not married but has a child that was given up for adoption while he was in custody. The last time that Mr. Smith was legally employed was several years ago. He has a grade 11 education.
[37] Mr. Smith’s parents separated when he was four years old and he resided with his mother. His mother remarried and there are two children from that marriage. He also has a half brother from his father’s subsequent relationship.
[38] When Mr. Smith was 15 years of age, he went to live with his father. That is when things changed for the worse and Mr. Smith became involved with illegal narcotics. Mr. Smith has reported that his father was a “drug dealer” and a “biker”. He died of cirrhosis of the liver while serving a life sentence for murder at the Millhaven Penitentiary in 1989.
[39] Mr. Smith says that he was sexually molested as a child by two different people. He was molested by a neighbour between the ages of 9 and 13. He was also molested on one occasion by a family friend. That family friend was convicted of assaulting another child in 1988.
[40] Since being incarcerated on these charges, Mr. Smith appears to have been a model prisoner. Mr. John Lawson, head of security at the Metro East Detention Centre testified that he is very familiar with Mr. Smith because Mr. Smith has been an inmate in his facility many times. Over the last two years, there have been no incidents of misconduct and Mr. Smith has shown a substantial improvement in his attitude resulting in more responsibilities within the facility. This behavior is a signficant improvement over his previous visits.
[41] Ms. Judith Russo, the Chaplain at the Metro East Detention Centre testified on behalf of Mr. Smith. She, too, has had experience with Mr. Smith and has noticed a marked change during this period of incarceration. She does not believe the change is manipulative as he stated, almost immediately upon being incarcerated on this occasion, that he is willing to seek treatment for his substance abuse.
[42] While I am sympathetic to the circumstances of Mr. Smith’s upbringing and admire his current intention to seek treatment as well as the progress that he has made while in custody on this occasion, the public must be protected from his criminality. This can only be accomplished by a significant period of incarceration, which separates the offender from the community. This position is supported by the overwhelming aggravating factors presented in this case.
The Aggravating Factors
[43] There are a number of aggravating factors which I consider significant in coming to the appropriate sentence.
a. The nature of the driving
[44] The nature of Mr. Smith’s driving is nothing short of shocking:
a. The van was driven at a high rate of speed on a city street in Toronto. The estimated rate of speed down Midland Avenue was over 100 kms per hour. This was double the posted speed limit of 50 kms per hour.
b. It was also estimated that the van turned right onto Lawrence Avenue at a rate of speed of 60 kms per hour. Again, this was a significant speed for a van to be making a turn on these particular streets.
c. In analyzing the evidence of the police at trial, it appears that at the very least, Mr. Smith travelled at approximately 100 kms per hour in a posted 60 km per hour zone across Lawrence Avenue. Accordingly, Mr. Smith was traveling at a rate of speed well in excess of the posted zone.
d. The distance between Midland and Pharmacy Avenues along Lawrence Avenue is close to four kilometres in length. That means that Mr. Smith was driving at a high rate of speed for close to four kilometres on a city street.
e. Mr. Smith travelled through a red light at Kennedy Road. At that point he collided with a vehicle that was travelling through a green light, causing damage to the bumper of the other car. Mr. Smith was not deterred by such a collision.
f. Mr. Smith veered into the eastbound lanes while traveling westbound on Lawrence Avenue. There were cars waiting at a red light at Lawrence and Pharmacy Avenues when he did so. Accordingly, there was other traffic in the area although there may not have been cars proceeding in the eastbound lanes when this manoeuvre occurred.
g. Although there was no advanced green light for the cars turning left to head south on Pharmacy Avenue at Lawrence Avenue, the victim’s car was waiting in that lane. The Honda proceeded to make a legal left hand turn and while doing so, the van driven by Mr. Smith collided with it at a speed of almost 100 kms per hour. Mr. Smith was wrongfully in the eastbound lane when this occurred.
h. There was no reason for the driver of the Honda to have expected a van to approach on her left side. Mr. Smith should have anticipated such a turn in light of the fact that the Honda was sitting in the left turning lane as he approached the intersection.
i. At the time the collision occurred, Mr. Smith had been pursued by two police cruisers that had their emergency lights and sirens activated. Such a pursuit had happened over a fair distance from Midland to Pharmacy Avenues crossing three major intersections at Kennedy Road, Birchmount Road, Warden Avenue and finally into Pharmacy Avenue. This, in and of itself is troubling.
j. There is no doubt that this chase ensued for the time that it did because Mr. Smith was attempting to avoid arrest. Mr. Smith controlled the chase and the outcome. All that he needed to do to end the chase was stop his van. He did not. Because he did not, he caused the collison at Pharmacy Avenue which resulted in horrifying consequences.
b. Mr. Smith’s Criminal Antecedents and Misconduct
The Record Generally
[45] More shocking than the driving demonstrated by Mr. Smith is Mr. Smith’s criminal record itself. Mr. Smith has been convicted of 168 offences prior to the 25 registered in these proceedings. Accordingly, Mr. Smith comes before the Court for sentencing having amassed a criminal record of 193 criminal convictions.
[46] Since 1988 (24 years), Mr. Smith has almost habitually been serving a sentence, subject to probation or a recognizance: none of which have curtailed his criminality.
[47] Most of the convictions on Mr. Smith’s record deal with theft offences. It appears that Mr. Smith engages in criminal activity to obtain funds in support of his drug habit. He has been incarcerated for such offences mainly in provincial institutions but went to the penitentiary on one occasion in 1990.
[48] Perhaps of more importance for the purpose of this proceeding is Mr. Smith’s inability to comply with Court orders. Mr. Smith has 25 convictions for his failure to comply with court orders. It appears that on two occasions, he was unlawfully at large. He also has eight convictions for either obstructing police or attempting to obstruct police, demonstrating that he has little regard for our criminal justice system.
Police Chases
[49] Of equal or greater importance in this case is the fact that Mr. Smith has three convictions for dangerous operation of a motor vehicle and one conviction for failure to remain at the scene of an accident. Other facts of a police chase were read in at a plea. Those offences may be summarized as follows.
[50] Mr. Smith’s first police chase occurred in 1991 when he either ran or drove away from the police as he was pursued following a theft from a motor vehicle.
[51] In 1996, the police responded to a report of a break and enter in Mississauga. Three police vehicles with their emergency lights activated engaged in the pursuit of a stolen van that was driven by Mr. Smith. The van travelled at a speed of close to 130 km/hr. Mr. Smith headed northbound on Dixie Road and at times drove northbound in the southbound lanes. He ran through red traffic lights at two intersections. He continued driving and eventually spun the van 180 degrees to head in another direction. He travelled through another two red lights and approached the 401. He lost control of the van, hit the front corner of a police cruiser, went off the road and then re-entered it, hit a second cruiser and came to a stop following which he was arrested. This driving caused approximately $21,000 in damage to the vehicles. Thankfully, no one was hurt.
[52] Approximately 5 years later, Mr. Smith led police on yet another chase. At 11:47 p.m. on Friday, February 16, 2001 (almost nine years to the day of this offence) the police clocked Mr. Smith driving 106 km/hr in a 50 km/hr zone. The police tried to stop Mr. Smith by activating their lights. Mr. Smith swerved into the lanes of oncoming traffic and fled past the police who began to chase him. Mr. Smith refused to stop continuing to swerve his vehicle. Mr. Smith eventually pulled into a driveway. When confronted by police, he began laughing. He was arrested for failing to stop for police.
[53] The next police chase occurred less than a year later and in January, 2002. The police observed Mr. Smith driving a stolen car at a high rate of speed with the vehicle lights out. The roads, at this time, were slushy and ice covered. The police tried to catch the vehicle but lost sight of it. They eventually found it and concluded that the vehicle had struck a parked auto and then drove into a tree. A police dog picked up on the scent of Mr. Smith and he was eventually apprehended. Mr. Smith’s driving on this occasion caused approximately $5,500 in damages to the vehicles.
[54] On January 4, 2006, Mr. Smith took the police on another chase. A police officer observed a vehicle being driven by Mr. Smith. The officer pursued Mr. Smith who rammed his vehicle into the scout car. Accordingly, the police pursuit was terminated. Eventually the vehicle was found but Mr. Smith was not in it. He eventually admitted responsibility for this action at a guilty plea before Justice S. Nakatsuru on July 6, 2007.
[55] On January 26, 2006 (22 days later), Mr. Smith was involved in yet another police chase. Mr. Smith was in an industrial area of Toronto and in the midst of a break and enter when police saw him approach a stolen van. Mr. Smith got into the van and he was followed by officers as he drove at a high rate of speed and erratically. Mr. Smith drove the van through two red lights. He veered onto several streets during the chase and the police were not able to keep up. Eventually, Mr. Smith was arrested.
[56] The last police chase on record occurred on March 11, 2008. Mr. Smith had stolen a car and was seen breaking into vehicles in the parking lot of the East General Hospital. He was observed by police northbound on Morton Road and then proceeded east on Danforth Avenue at approximately 11:42 a.m. The police followed him in a marked car. Mr. Smith traveled at a high rate of speed and drove east in the westbound lanes. He passed three lanes of traffic including vehicles waiting to make a left hand turn. Cars driving in the westbound lanes had to take action to avoid collision.
[57] Mr. Smith proceeded through an intersection with no attempt to stop. He travelled through a second red light at a cross walk. He was traveling at approximately 90 km/hr in a 50 km/hr zone. At Dawes Road, Mr. Smith drove eastbound in the westbound lanes passing three lanes of stopped traffic. Again, he went through the intersection while the light was red. He then turned into a residential area, driving through a stop sign and traveling at twice the speed limit. The vehicle was eventually abandoned and Mr. Smith was arrested eight days later. These facts were admitted during his last plea before Otter J. on July 31, 2009.
[58] These six police chases are unsettling. They show that Mr. Smith has absolutely no regard for the rules of the road or the innocent people using them. It is by sheer luck that Mr. Smith did not injure or kill anybody prior to February 15, 2010. He no longer deserves the privilege of sharing the road with the public and must be separated from society to prevent such a further occurrence.
Driving Prohibitions
[59] Mr. Smith does not appear to have been deterred from his criminal conduct after having been sentenced to three different driving prohibitions in the criminal court: for one year in 1996, one year in 2007 and two years in 2009. On March 6, 2009 Mr. Smith’s licence to drive was suspended for life by the Ministry of Transportation.
[60] The fact that Mr. Smith was driving while prohibited at the time of this offence is a significant aggravating factor. Put simply, no Court order is capable of keeping Mr. Smith out of the driver’s seat of a vehicle.
[61] I wish to make it clear that I am not sentencing the offender here for past criminal offences for which he has already been sentenced. However, in my view, Mr. Smith’s criminal convictions in the past have a direct bearing on my decision to impose the custodial sentence that I have. It appears that no court order or stint in jail can protect society from Mr. Smith’s criminal conduct. It is my view that the public can only be protected if Mr. Smith is in custody. His prior submissions at seeking rehabilitation support my findings: such submissions are hollow.
c. Mr. Smith’s Attempts at Rehabilitation
[62] As I have stated above, Mr. Smith has been incarcerated for much of his adult life. It has been suggested that since his incarceration for these offences, he has “seen the light” and wishes to become a contributing member of society through treatment. Unfortunately, his personal history does not give the Court much hope that such a desire is sincere.
[63] Filed on behalf of Mr. Smith during this sentencing hearing was a letter from the Stonehenge Therapeutic Community, dated March 29, 2012. It states that Mr. Smith had completed a phone assessment interview. Upon release he would be considered for a four to six-month treatment program designed to address issues related to or supporting drug use.
[64] Since being incarcerated on these charges, Mr. Smith appears to have successfully participated in a self esteem workshop, a Correctional Services CIAC Substance Use Program and an Anger Management Workshop. This should be commended but as I say, I question the sincerity of Mr. Smith’s efforts.
[65] It is clear from his institutional records that Mr. Smith has indicated an intention to reform himself in the past. As early as 1992 it was his intention to “participate fully in a residential treatment program”; “meet regularly with an addictions counselor to discuss progress in terms of substance abuse”; and “regularly attend two community NA [Narcotics Anonymous] meetings per week for maintenance purposes, upon completion of treatment”. While this was his plan for release on September 29, 1992, five days later on October 4, 1992 he returned to his residence at CRF St. Leonard’s “clearly under the influence” of either alcohol or drugs.
[66] During his next period of incarceration, it appears that Mr. Smith made some progress because he completed the “CHOICES” program. He reported that he found the program to be “very helpful”. The Final Report of this program, dated May 6, 1993, stated: “He reports that he is determined to stand by his decision to remain abstinent and is in the process of recognizing what sorts of things have triggered him to use in the past.” It also stated that he had completed the “Pre-Release Substance Abuse Programme” at Bath Institution, the “St. Leonard’s Treatment Programme”, a course on “Relationships and Communication” and that he was enrolled in a program on “Problem Solving”. Such programs did not appear to be all that helpful because Mr. Smith amassed numerous convictions thereafter resulting in further periods of incarceration.
[67] Despite Mr. Smith’s protestations about reforming, references to his insincerity are rife throughout his probation and parole records. In September, 1995 a Special Report stated as follows:
The subject indicated that he did not report to his supervisor or to treatment as he feared he would fail any future urinalysis testing. He stated “I will smoke dope until the day I die.” The subject also indicated that he became addicted to heroin while he was at large and that his current offences are the direct result of his addiction. The subject also indicated that the police report is completely accurate and that the police caught him “dead to rights”. The subject also indicated that he would like to have his release revoked. He was very apologetic but he did not seem very sincere. [Emphasis added]
[68] Other reports from Correctional Services Canada have referred to Mr. Smith as “irresponsible”, “indifferent” and “unacceptable”, having made little effort to cooperate. On occasion, he has admitted that he lies and takes advantage of loved ones.
[69] In a subsequent pre-sentence report done in 2004, Mr. Smith referred to the CHOICES program that he had previously stated was “very helpful” as “stupid”. In this report, he indicated that the only program that he wanted to attend was Turning Point. Accordingly, upon his release from custody in 2004, Mr. Smith was instructed to report to Turning Point within 24 hours. Within 48 hours, he had failed to do so and never did.
[70] On November 23, 2005, Mr. Smith indicated that he was not going to make any promises about seeking treatment and that he would likely “use” upon release. Rife throughout his probation records are references to the fact that Mr. Smith is at a high risk to re-offend. He also admitted that he is “unsuitable” for community supervision and that he was likely to use crack again and that he has no real interest in treatment.
[71] In 2005, a report for a parole hearing stated the following:
His demeanour during the interview for this report was cooperative and forthcoming but it appears that he may be claiming to want treatment to get out of jail [rather] than a desire to seek help for a 20-year addiction. …
The client does not appear motivated to change. During the interview he referred to himself as a “salesman” and it seemed that he was more interested in claiming he wants help to get released than actually wanting help. He also told his previous PO who wrote a PSR nine months ago that he was ready to change and needed to get into rehab to deal with his drug issues but at the time he was also in custody on remand. He minimizes the effects of his crimes as he says he is not physically harming individuals but only affecting businesses financially. [Emphasis added]
[72] At his sentencing hearing on July 6, 2007, Mr. Smith addressed the Court. At that time he said “… just that if it wasn’t for drugs, I’d never see the inside of prison”. In response to a comment made by Nakaratsu J., Mr. Smith said that he hoped that he would remain out of the courts and prison. Despite such representations, Mr. Smith was back before the Court soon thereafter for offences committed in 2007 and 2008.
[73] At his sentencing hearing on July 31, 2009, and when asked if he had anything to say before Otter J. passed sentence, he said: “Just at the end of the day, Your Honour, no matter what, it’s the last time I’ll be here, and … This time’s different”. Well it was not different because immediately upon release from custody, Mr. Smith refused treatment and within three months was before the Court on the current set of charges.
[74] At this sentencing hearing in July, 2009 as well, it was Mr. Smith’s Counsel (also Counsel at this trial) that suggested that it be a requirement of his probation that on the date of his release that he “report to and become involved in the program at Turning Point”. It was as a result of Counsel’s suggestion that the Court ordered Mr. Smith attend at Turning Point immediately upon his release.
[75] Mr. Smith was released from Maplehurst Correctional Complex on December 20, 2009. He reported to probation as directed. At that time, Mr. Smith indicated that he had no intention of attending Turning Point because “he is now 41 years old, has been in jail for 2 years and is clean”. He advised that he would attend some form of drug counseling and he did see a Dr. Paitich in January, 2010 but denied that he had substance abuse issues.
[76] Mr. Smith told the probation officer that he wants to stay “clean” and that he is “fine now”. He further stated that his daughter “is his new focus” and that “he intends to stay clean, in order to better himself”. While that is what Mr. Smith might have said, that was not the case as this collision occurred approximately two weeks after that representation was made.
[77] Two days before the collision occurred and at the time that Mr. Smith was driving around town in a stolen van and deeply emerged in his spree of thefts, he called his probation office. Mr. Smith told them that he could not report as he was looking after his daughter. When his daughter’s prime caregiver was contacted on that same day, she advised that the daughter was in daycare and that she had not seen Mr. Smith for two to three weeks. Obviously, Mr. Smith had lied to his probation officer as he was on his criminal rampage leading up to the charges before this Court.
[78] Up until Mr. Smith was convicted of these offences, he had accumulated 168 criminal convictions. He has participated in approximately 32 sentencing hearings and knows that something positive must be placed before the Court about his efforts to deal with his substance abuse and character.
[79] Mr. Smith’s records from parole and probation indicate time and time again that there is a “different attitude emerging” and that Mr. Smith appears to be “committed and determined” to deal with his substance abuse. To date, he has not succeeded and many family and friends have been disappointed by Mr. Smith’s broken promises.[^6] He has pursued little, if any, counseling outside of custody as he has promised repeatedly.
[80] Mr. Smith has been through this before and as it was so eloquently stated in his parole report of November 12, 1992: “the subject’s risk in the community does not seem manageable at this time”. This comment remains true almost 20 years later and I do not see any reason to believe that Mr. Smith will be rehabilitated any time in the near future.
[81] Although Mr. Smith submits that this time is different, because he killed someone, I simply cannot accept his promises as sincere. In my view, his representation that he will seek counselling is just one more of his promises that will be broken in the future. Mr. Smith’s statements are those of convenience rather than conviction: he says what he believes the Court and others want to hear without any intention of following through on those promises. His history referred to briefly above, supports such a finding.
[82] Mr. Smith has been afforded every opportunity to obtain treatment for his drug addiction but has not been interested in doing so. He is immune from court ordered supervision because of his own conduct.
d. Misconduct While Incarcerated
[83] Even when in custody, Mr. Smith has racked up a series of “misconducts”. A report from the Metro East Detention Centre demonstrates that he has been reprimanded or punished for misconduct such as: having contraband or attempting to bring contraband into the facility (2002), wilfully disobeying an order of an officer (2001) and creating a disturbance (1997). It appears that Mr. Smith is amenable to no authority.
d. Remorse
[84] Although Mr. Smith indicated to this Court that he is sorry for his actions on February 15, 2010, it does not appear that such a submission is sincere. Despite the fact that early after his arrest, he stated that he would plead guilty to the dangerous driving cause death offence “right away” as he did not “want to put the victim’s family through more grief”, he did not do so.
[85] Mr. Smith proceeded to a preliminary hearing on all of the offences including the break, enter and theft at Herbal Magic, theft of gasoline, theft of the van, etc. He did not plead guilty to dangerous driving cause death until the close of the Crown’s case at trial. It was only after all of these witnesses testified that he did plead guilty to 19 of the 25 offences. It was following argument that he was found guilty of criminal negligence causing death and criminal negligence causing bodily harm.
[86] Despite his noble protestations of pleading guilty at the earliest opportunity, Mr. Smith did not do so. This is hardly a plea of guilt at the earliest opportunity and is yet another broken promise. Little remorse has been shown by Mr. Smith in the circumstances.
[87] Crown Counsel also submits that any attempts at rehabilitation since his incarceration on these charges is simply an attempt to persuade this Court that he has changed and is not a genuine sign of remorse. A case note provided by probation following this incident shows that Mr. Smith expected to receive a sentence of 10 years for these crimes.
[88] In May, 2010 Mr. Smith expressed concern that the Crown was seeking a Dangerous Offender designation for him. He told the probation officer that he was not dangerous and not violent. This shows that Mr. Smith has little insight into the gravity of this offence. He does not appear to appreciate that he is dangerous when behind the wheel of a car avoiding police. Perhaps he has come to that conclusion because despite the numerous police chases he has been involved in, he has managed to avoid injury to others. Such a view is short sited and unrealistic demonstrating a profound lack of understanding.
[89] This lack of insight shown by Mr. Smith has been evident for some time. In the past, he has minimized his criminal record and justifies his stealing. He believes that he does not target individuals but chooses to “hit” businesses so that they can recuperate their losses through insurance. Again, this representation demonstrates a profound lack of understanding of the gravity of his offences.
[90] It was in August, 2010 that Mr. Smith was recommended for treatment. It may be that since Mr. Smith had been involved in approximately 32 prior sentencing hearings he knew that his Counsel had to show some progress with respect to his rehabilitation so that he had better make some effort. However, I will give him the benefit of the doubt. I do accept that Mr. Smith may view this case as different from the rest because he killed somebody and recognizes the need for rehabilitation. However, one might say that it is a little too late for such insight.
[91] While I applaud the efforts of Mr. Smith to rehabilitate himself, I simply do not find that he is capable of maintaining such progress. He is 43 years of age and has been in custody for a great deal of it since 1988. Although his record reflects only one trip to the penitentiary, he has served the functional equivalent of at least two other penitentiary sentences due to the imposition of enhanced credit on a 2:1 basis in both 2007 and 2009.
[92] I recognize that the sentence that I am imposing is a significant “jump” and that such a sentence may crush Mr. Smith’s optimism for rehabilitation. However, I simply cannot ignore his antecedents which demonstrate that his rehabilitative prospects are indeed “dim” if not non-existent. In imposing the sentence today, I have reviewed the decision of the Court of Appeal for Ontario released two days ago in R. v. Johnson.[^7]. It does not change or detract from my analysis of the appropriate sentence in this case.
e. The Impact on the Victims
[93] To say that this collision has had a devastating effect on the victims is a tremendous understatement. It is obvious that the conduct of Mr. Smith has had a profound impact on the victims. One person died and another five were injured.
[94] I cannot recreate, in words, the feelings of despair conveyed by those family members that survived this devastating crash and who appeared before me. As the brother of the deceased expressed to the Court: “Pen cannot say, words cannot express”.
(i) Ms. Mahboba Attayee (“Sara”)
[95] The deceased was 26 years of age at the time of her death. Her family described her as a bright and loving member of the Attayee family. Her brother described her as the “trunk” of the Attayee family tree. Not only did she help those who were related to her, she had aspirations to help those who weren’t.
[96] It was her wish to open a clinic for women in Afghanistan as well as assist orphans through charity. She had already begun collecting money and sending it to Afghanistan for widows and people in need. It was her intention to remember the people who suffer in that country.
[97] Of course, those dreams will never be fulfilled due to the actions of Mr. Smith on February 15, 2010. This was succinctly put in the victim impact statement of Ms. Addela Attayee who said: “Just in short, she had a lot of wishes and desires in order to fulfill them, but unfortunately she was not able to do so.” It was obvious that Sara had lived a great life which was cut far too short and far too soon by the criminal actions of Mr. Smith.
(ii) Ms. Khoshbo Attayee
[98] Ms. Khoshbo Attayee was a rear passenger in the Honda and a niece of the deceased. After the accident, she was taken to Sunnybrook Health Sciences Centre. She had lost consciousness on impact and did not awaken until she arrived at the hospital. She suffered traumatic injuries, including a head injury, injury to the eyes causing blurred vision, a neck injury, knee swelling and injury to her ribs and sternum. She spent two weeks in hospital before being released.
[99] Due to her injuries, Ms. Khoshbo Attayee was unable to finish her final year at high school on time and either attend college or university as she had planned. The loss of her aunt has had a tremendous affect on her. This was evident from her victim impact statement. She described her Aunt Sara as “humble, kindhearted, loving, respectful and full of joy who lived her life to the fullest”. It was obvious that Sara is deeply missed.
(iii) Ms. Fahemah Attayee
[100] Ms. Fahemah Attayee is 38 years old and she was also a rear passenger in the Honda. She did not lose consciousness, but was taken to St. Michael’s Hospital where she remained for two months following the crash. She did not know that Sara had died until one month after the crash. She was devastated.
[101] As Ms. Fahemah Attayee expressed in her victim impact statement: “Even though I cannot stand and walk properly, and that I have many pains, but the pain of having lost youthful Sara is the most painful of all which I suffer currently”. That being said, Ms. Fahemah Attayee has suffered devastating injuries.
[102] Ms. Fahemah Attayee suffers from various physical ailments, including injury to her neck, shoulder, ankle and ribs. She is unable to breathe normally and now suffers from depression. Her husband has “lost his work and his future” due to the attention he has had to devote to his wife and their five children. In closing, she said: “It has taken all my happiness. It can even be seen in my face. I see that I can never go back to my normal life in the future unless God himself assists us.”
(iv) Ms. Dina Khalil
[103] Ms. Dina Khalil was 15 years of age at the time of the collision and was sitting in the rear of the Honda. She suffered a head injury, injury to her back, spine, shoulders, right knee, ribs, neck and jaw. She suffiers from fatigue and poor endurance which requires her to come home from school most days. Her sleep is disrupted regularly due to fear and anxiety. She suffers from post-traumatic stress including nightmares. Her life has changed dramatically and she has expressed frustration about the length of time it is taking her to recover. She will never be the same.
(v) Ms. Addela Attayee
[104] Ms. Addela Attayee was 45 years old at the time of the collision and is the sister of the deceased. She was riding in the passenger seat of the Honda. She is suffering neck, left shoulder, back and right leg pain following the collision. In her words, she described her pain in her body as akin to putting “wheat in a mill and you grind that. That is what happened to my body”. Such injuries have prevented her from doing chores, preparing food, doing laundry or putting on clothing. Of most significance is the impact on her family. She said that she is not able to talk with her own children and she cannot show her husband the love she was able to before the incident.
[105] In closing, Ms. Addella Attayee said that “the only place which gives me some peace and serenity is the grave yard of my sister which I go there and I pray for her. God bless her soul”.
(vi) Ms. Nadia Hassan
[106] Ms. Nadia Hassan was 35 years old at the time of the collision and was sitting in the rear of the Honda. She is the mother of Ms. Dina Khalil. She suffered numerous fractures and suffers headaches daily. She too suffers from nightmares and anxiety. Since the accident, she has engaged in self-harming behaviours. Her husband keeps the balcony locked so that she cannot harm herself there. Her mood fluctuates depending on the day and with her pain. Her mobility has significantly decreased. This, of course, is not the life she had intended to lead.
[107] Mr. Smith not only caused an immeasurable amount of grief for those involved in the collision but the extended family as well. It is trite to say they will never be the same.
Case Law Analysis
[108] As in any sentencing case, it is difficult to find precedent that mirrors the factual situation before the Court. This is true for each of the cases that I examined.
[109] For example, I have carefully considered the case of R. v. Underhill.[^8] In that case, Mr. Underhill was driving at a high rate of speed and in a reckless manner. Like Mr. Smith, he was driving a stolen motor vehicle and appeared to be fleeing its owner. The driving occurred on a Saturday on a Labour Day weekend in downtown Toronto that was very populated. Mr. Underhill’s conduct driving caused the death of one person and injured three others. He was sentenced to six years in the penitentiary.
[110] Like Mr. Smith, Mr. Underhill had a lengthy criminal record. The offences on the record are non-violent and as the Court said: “he has been given every break imaginable”. There were many conditional sentences on the record and a lot of probation. There is no discussion of the number of convictions or any reference to periods spent in custody. This case was decided in 2001.
[111] A case similar to the one before me is R. v. Shore.[^9] Mr. Shore pleaded guilty to and was found guilty of a number of offences in 1999 including: criminal negligence causing death, criminal negligence causing bodily harm, failing to stop his motor vehicle when signaled to do so by a police officer, possession of a motor vehicle obtained by crime, etc. Mr. Shore was given a sentence of 9 years in custody.
[112] Mr. Shore and another passenger were traveling from Winnipeg to Toronto to sell the stolen Suburban vehicle in which they were traveling. They had discussed what to do if the police chased them: drive “really crazy” to get the police to back off and allow for them to escape.
[113] At the time, Mr. Shore was facing outstanding charges. When they were in Thunder Bay, they stole gas and the police were alerted. The police located the Suburban and followed it. They activated the emergency lights on the scout car. The Suburban accelerated passing other cars at a speed of 140 km/hr to 160 km/hr.
[114] At one intersection, a vehicle had moved into the left turn lane and had begun making the turn. The Suburban passed him on the left side and thankfully avoided collision. The pursuit continued. The Suburban moved back and forth from the east to the westbound lanes forcing some cars onto the shoulder of the road to avoid collision.
[115] The deceased was legally driving her car in the opposite direction of the Suburban. The Suburban pulled into her lane and she went onto the shoulder in an attempt to avoid a collision. She was not successful and was hit “head-on”. She died instantly and her passenger suffered irreparable damage.
[116] The factual circumstances of the Shore case sound eerily similar to the case before me. However, there are many differences regarding Mr. Shore and Mr. Smith. Mr. Shore killed one person and injured one other. Mr. Shore was 20 years of age at the time. His criminal record included two offences for theft under for which he received fines and one break, enter and commit for which he had received a suspended sentence and probation for two years. At the time of this offence, he had never been incarcerated. This, in my view, is a significant distinction from Mr. Smith’s circumstances.
[117] I have also carefully reviewed the more recent decision of my colleague, Trotter J. in the case of R. v. Luskin.[^10] Mr. Luskin, at 23 years of age was impaired by alcohol and driving his car at a high rate of speed. He crashed into a car with five occupants. Three of them died and two were injured. Mr. Luskin pleaded guilty to three counts of criminal negligence causing death and two counts of impaired driving causing bodily harm. Trotter J. sentenced Mr. Luskin to eight years in custody.
[118] What makes the Luskin case different than the one before me? For starters, Mr. Luskin was only 23 years of age at the time of the offences and he was impaired. He pleaded guilty. Prior to this occurrence, Mr. Luskin had accumulated a criminal record for credit card offences for which he received a conditional sentence. At the time of the crash, he was on a peace bond. Many letters of support were filed on his behalf. Mr. Luskin would likely be deported as a result of this and his prior convictions.
[119] Another case that I have considered is that of R. v. Kummer.[^11] The Court of Appeal upheld a sentence of eight years. Mr. Kummer was impaired by alcohol, drove at a high rate of speed and proceeded through a stop sign. He killed three people and seriously injured two. Mr. Kummer had no criminal record, but he had a serious driving infraction involving alcohol which was serious.
[120] Unlike Mr. Luskin and Mr. Kummer, there is no evidence that Mr. Smith was under the influence of either alcohol or narcotics at the time of the offences. As stated in the Shore case: “ … in this case we have a sober aware driver who was deliberately engaged in a course of conduct to avoid apprehension of the police”.
[121] In my view, Mr. Smith is far more culpable than the offenders in the other cases provided by both the Crown and Counsel for Mr. Smith. Denunciation, specific deterrence and protection of the public are, in addition to general deterrence, the most important objectives in this sentencing.
[122] Although the life sentence being requested by the Crown would seem to be unsupported in the authorities, the Criminal Code has indicated that in some circumstances, it will be warranted. Although MacPherson J.A. was referring to impaired driving causing death offences, his words are appropriate here: “It must remain within the realm of possibility that a life sentence could be imposed for this crime”.[^12]
[123] It is my view that the case before me is different than the cases considered above. Although Mr. Smith was not impaired at the time of driving, he has 168 prior convictions, some of which are related to this offence.
[124] What is clear from a review of the materials filed on this sentencing hearing and during submissions is the following:
a. Mr. Smith is unable or unwilling to abide by court orders whether they be in the form of a recognizance of bail or a probation order;
b. Mr. Smith is unable or unwilling to comply with any court ordered driving prohibition as he was the subject of one at the time of this incident;
c. Incarceration is not a deterrent to Mr. Smith, be it a stay at the penitentiary or a provincial institution;
d. That despite having participated in numerous programs while in custody and being offered various opportunities, none have assisted Mr. Smith in dealing positively with his substance abuse;
e. That as late as December, 2009, Mr. Smith denied that he had suffered from substance abuse;
f. That Mr. Smith has little insight into his property crimes as he views them as victimless;
g. That despite help from family and friends, Mr. Smith is not able to stay free of narcotics;
h. That not even the birth of a daughter could help Mr. Smith remain free of narcotics and the criminality that comes along with it; and
i. The promises from Mr. Smith that he is going to remain drug free and stop committing offences soon become broken ones within days of obtaining freedom.
[125] In coming to my conclusion that the maximum sentence of life is warranted, I am cognizant of the comment of Taggart J.A. in the case of R. v. Goronuk[^13] where he stated the following:
At some point in time the court must consider when the maximum sentence is appropriate. Are we expected to carry on giving out sentences that are something less than the maximum sentence when it’s perfectly obvious that the accused person has not been deterred from the commission of these types of offences in the past by reason of lengthy gaol sentences? Well my answer to that is simply “No” …
Here the trial judge … considered that these offences warranted the maximum sentence. I think the judge was right. There comes a time in the history of an offender such as this one where, really, the sole consideration must be to protect the public from further depredations of the offender. That is what, in my opinion, militates in favour of the conclusion that the sentences here were entirely fit. [Emphasis added]
[126] In my view, the public must be protected from Mr. Smith’s criminal activities and wanton disregard for its safety. The only way to do that is through the imposition of a life sentence. Despite my conclusion, I will answer the other questions raised at this hearing.
c. Should Mr. Smith be Given Credit for Time Served?
[127] In light of the imposition of a life sentence, the question of giving Mr. Smith credit for time served in pre-trial custody is irrelevant. However, should I have imposed a determinate sentence, I would not have given Mr. Smith credit for time served.
[128] Although there are no “hard and fast rules” for giving enhanced credit, the general rule is that 2:1 credit is given for pre-sentencing custody time.[^14]If such credit is given, 30 months, 20 days would be deducted from Mr. Smith’s sentence.
[129] It is unlikely that Mr. Smith would receive parole. He poses a significant danger to society as is evident from his criminal record and the offences before the court. Further, it appears that Mr. Smith was able to take advantage of rehabilitative programs that were offered a the Metro East Detention Centre and referred to in paragraphs 64 and 65 above.
[130] Lastly, the conditions at the Metro East Detention Centre have not been more crowded and the conditions have not been more onerous since Mr. Smith was incarcerated on these offences. From May 31, 2010 through to March 26. 2012, Mr. Smith spent 15 nights with 2 other inmates in his cell, 29 in a cell by himself and the balance with 1 inmate in his cell.[^15]
[131] As such, it is my view that this is a case where the general principle of giving credit for time served on a 2:1 basis should not apply. Mr. Smith will be given credit for time served on a 1:1 basis.
d. Should Mr. Smith’s eligibility for parole be delayed?
[132] Had I not imposed a life sentence, I would have recommended that Mr. Smith serve one half of his sentence pursuant to s. 746.3 of the Criminal Code. For the reasons set out above, this is not a routine case. In considering my decision to resort to such a section, I am mindful that the factors of general and specific deterrence as well as denunciation are paramount in this consideration.[^16]
[133] A message must be sent to like minded individuals who believe that it is in their best interests to try to outrun the police if they are observed in the midst of their criminal activity. Further, Mr. Smith must be informed that although he may have succeeded in various police chases in the past, his conduct must be specifically deterred. Lastly, this conduct must be denounced because it places the public in imminent danger. Had a determinate sentence been imposed, I would have imposed a s. 746.3 Order in the circumstances.
Conclusion
[134] As stated above, a fundamental principle in sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Clearly, these offences are grave. Mr. Smith is fully responsible for the outcome of his driving. His deliberate attempt to outrun the police caused the senseless death of one beautiful person and injury to five others. He was thoughtless as to whom he might hurt in his effort to escape apprehension. He thought only of himself as he has done so often in the past.
[135] It is my view that in order to properly give effect to the significant aggravating factors present in this case and in order to properly give effect to the principles of general deterrence and denunciation, a sentence of life in prison is appropriate. Such a sentence is imposed to denounce Mr. Smith’s behaviour and to deter others. Most importantly, it is designed to protect the public.
[136] The Criminal Code allows for a sentence of life in prison for these offences. It is always possible for a court to imagine a worse case than the one before it but such sentences are not to be reserved for the worst crimes committed in the worst circumstances.[^17] A maximum sentence must be more than theoretical. In this case, the maximum sentence is warranted: the offence is of sufficient gravity and the Mr. Smith is solely to blame. This, no doubt is an unusual case, specifically due to the antecedents of the offender.[^18]
[137] Mr. Smith is a serial and uncontrollable criminal. He is a threat to our society and to the safety of our public. The only way to control Mr. Smith while protecting the public is to keep him in custody and that is where he shall remain for life.
[138] Mr. Smith will receive a life sentence for the offence of criminal negligence causing death. All other sentences imposed are set out in Appendix “A” attached hereto. The one count of dangerous driving cause death and five counts of dangerous driving cause bodily harm will be stayed in accordance with the principle in R. v. Kienapple.[^19] Lastly, I prohibit Mr. Smith from driving anywhere in Canada for life.
Kelly J.
Released: May 25, 2012
Appendix “A”
To the reasons for sentence of Kelly J. re: R. v. Clifford Robert Smith, dated May 25, 2012
| Count | Offence | Criminal Code | Sentence |
|---|---|---|---|
| 1 | Theft Under $5,000: Dodge Caravan | 334 | 2 years in custody |
| 23 | Possession of Property Obtained by Crime: Dodge Caravan | 354(1) | 2 years concurrent to Count 1 |
| 2 | Break, Enter and Commit Theft: Glamorous you | 348(1)(b) | 2 years in custody consecutive to Count 1 |
| 3 | Break, Enter and Commit Theft: Chopstick Delight | 348(1)(b) | 2 years concurrent to Count 2 |
| 4 | Theft Under $5,000 (gasoline from Shell) | 334 | 18 months concurrent to count 2 |
| 5 | Break, Enter and With Intent to Commit Theft: Portugrill Restaurant | 348(1)(b) | 2 years concurrent to Count 2 |
| 6 | Break, Enter and Commit Theft: Auto Zone Central Inc. | 348(1)(b) | 2 years concurrent to Count 2 |
| 21 | Break, Enter and Commit Theft: Herbal Magic | 348(1)(b) | 2 Years concurrent to Count 2 |
| 22 | Possession of Property Obtained by Crime: Canadian Currency | 354(1) | 18 months concurrent to Count 2 |
| 24 | Possession of Break In Instruments | 351(1) | 18 months concurrent to Count 2 |
| 7 | Fail to Stop for Police | 249(1.1) | 2 years consecutive to Counts 1 and 2 |
| 25 | Operation of a Motor Vehicle While Disqualified | 259(4) | 18 months concurrent to Count 7 |
| 8 | Fail to Stop at the Scene of an Accident | 252(1.1) | 2 years concurrent to Count 7 |
| 9 | Dangerous Driving Cause Death | 249(4) | Stayed |
| 10 | Dangerous Driving Cause Bodily Harm | 249(3) | Stayed |
| 11 | Dangerous Driving Cause Bodily Harm | 249(3) | Stayed |
| 12 | Dangerous Driving Cause Bodily Harm | 249(3) | Stayed |
| 13 | Dangerous Driving Cause Bodily Harm | 249(3) | Stayed |
| 14 | Dangerous Driving Cause Bodily Harm | 249(3) | Stayed |
| 15 | Criminal Negligence Causing Death | 220 | Life in Prison |
| 16 | Criminal Negligence Causing Bodily Harm: Ms. Addela Attayee | 221 | 9 Years consecutive to Counts 1, 2 and 7 but concurrent to Count 15 |
| 17 | Criminal Negligence Causing Bodily Harm: Ms. Khoshbo Attayee | 221 | 8 Years concurrent to Count 16 |
| 18 | Criminal Negligence Causing Bodily Harm: Ms. Fahemah Attayee | 221 | 9 Years Concurrent to Count 16 |
| 19 | Criminal Negligence Causing Bodily Harm: Ms. Dina Khalil | 221 | 6 Years concurrent to Count 16 |
| 20 | Criminal Negligence Causing Bodily Harm: Ms. Nadia Hassan | 221 | 6 Years Concurrent to Count 16 |
COURT FILE NO.: 11-30000374-0000
DATE: 20120525
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
ROBERT CLIFFORD SMITH
REASONS FOR SENTENCE
Kelly J.
Released: May 25, 2012
[^1]: See: R. v. Smith, 2012 ONSC 787 [^2]: See: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 [^3]: R. v. Nasogaluak, supra, at para. 55 [^4]: At the time of testifying, Dr. Kreder was a professor at the University of Toronto, Orthopaedic Surgery and Health Policy Evaluation and Management, Chief, Holland Musculoskeletal Program, Marvin Tile Chair and Chief, Division of Orthopaedic Surgery, Sunnybrook Health Sciences Centre. [^5]: Messrs. Wiirk Jr., Walker and Todd Walsh and Ms. Jacqueline Walker were in a taxi behind the Honda. They were present when the police arrived. [^6]: See: Exhibit 14A: Correctional Service Community Assessment dated March 23, 1993; May 19, 1993 [^7]: 2012 ONCA 339 [^8]: [2001] O.J. No. 5927 (S.C.J.) [^9]: [1999] O.J. No. 1545 [^10]: 2012 ONSC 1764 (S.C.J.) [^11]: 2011 ONCA 39, [2011] O.J. No. 234 (C.A.) [^12]: Ibid. at para. 20 [^13]: Unreported British Columbia Court of Appeal decision, released April 6, 1987; See also R. v. Reimer [1990] M.J. No. 416 (Man.C.A.) and R. v. Fragoso 2008 ONCA 486 [^14]: See: R. v. Pangman, 2001 MBCA 64, [2001] M.J. No. 217 (C.A.) [^15]: See: R. v. Francis 2006 CanLII 10203 (ON CA), [2006] O.J. No. 1287 (Ont. C.A.) [^16]: See: R. v. Zinck [2003] S.C.R. 41 [^17]: See: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433 [^18]: See: R. v. L.M. 2008 SCC 31, [2008] 2 S.C.R. 163 [^19]: 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729