ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-0015
DATE: 20120925

BETWEEN:

HER MAJESTY THE QUEEN – and – RYAN HARRINGTON

Walter Devenz, for the Crown
B.J. Allison, for the Accused

HEARD: January 9,10,11,12,13 and 16, 2012

REASONS FOR sentencing

toscano roccamo j. (given orally)

Overview and Factual Background

[ 1 ] On December 20, 2008, at approximately 11:40 p.m., a complaint was lodged with the Ontario Provincial Police of a Ford Windstar van travelling westbound on Hunt Club Road in the City of Ottawa in an erratic manner above the posted speed limit. Ryan Harrington was the driver behind the wheel. He had consumed three to four ryes, as well as two beer at his employer’s Christmas party that evening. He had also taken two oxycotin pills at some point earlier in the day for headache.

[ 2 ] The chilling account of events which followed is captured on a CD recording 911 calls made by at least four members of the public (Exhibit #4) who observed the perilous course of the Windstar, as it weaved across lanes of traffic, hitting curbs, striking guard rails and almost running several vehicles off the road.

[ 3 ] As predicted by one of the concerned callers, a tragic accident occurred after Mr. Harrington entered the southbound lanes of Highway 416, travelling in the wrong direction and collided head on with a Pontiac Sunfire operated by 69 year old Roy Hogben.

[ 4 ] Mr. Hogben sustained serious and life threatening injuries.

[ 5 ] Unfortunately, a police-issued Tahoe SUV that was dispatched to the scene also collided with the Hogben Sunfire at the right front corner of Mr. Hogben’s vehicle while its operator, Constable Kehoe, was braking and attempting to steer away from Mr. Hogben’s vehicle.

[ 6 ] As a result of these events, Ryan Harrington was charged with driving with a blood alcohol concentration in excess of the legal limit causing bodily harm, dangerous driving causing bodily harm and impaired driving causing bodily harm. At the outset of trial, Mr. Harrington admitted to driving with over the legal limit of alcohol in his blood, dangerous driving and impaired driving simpliciter, thereby reducing the duration and expense of trial.

[ 7 ] Trial proceeded solely on the issue of whether the Crown could prove beyond reasonable doubt that the injuries sustained by Mr. Hogben were caused by Mr. Harrington.

[ 8 ] I found Mr. Harrington guilty of all offenses charged, but entered a conviction only on the driving over the legal limit causing bodily injury, contrary to section 255(2.1) of the Criminal Code .

[ 9 ] Arriving at a suitable sentence for a sympathetic offender who has committed a minor misdemeanour presents no challenge, just as the sentencing of an unsympathetic offender who has committed a heinous offense presents no challenge. This case, on the other hand, offers no easy disposition, as there is no doubt Ryan Harrington is a fine young man who has committed a very serious offence of the kind that leaves families bereft of loved ones, innocent people permanently disabled, and the public burdened with the care of those injured by others who choose to drink and drive.

[ 10 ] In his address to the Court, Ryan Harrington fully acknowledged the debt due to society for this kind of egregious conduct. The fact that he expressed his desire to perform community service as a feature of his sentence is a matter of which I take favourable notice.

Circumstances of the Offender

[ 11 ] Ryan Harrington was a 21 year old first offender at the time the charges were laid against him.

[ 12 ] The details of his antecedents are laid out in one of the most favourable Pre-Sentence reports that I have read in 10 years. ( Exhibit #1)

[ 13 ] Before the events of December 20, 2008, Ryan Harrington was a primary caregiver for a very disabled mother and tended daily to her needs, even while in school.

[ 14 ] His sister, who lives independently and his father, who lives in the United States, state that he was troubled by a toxic environment in the home as a result of arguments with his stepfather over the adequacy of care provided to his mother.

[ 15 ] His mother became disabled as a result of a skydiving accident and was effectively wheelchair bound and frequently in hospital. She used, and at times abused, prescription drugs and marijuana under medical exemption in order to relieve her pain.

[ 16 ] Notwithstanding the opportunity to do so, Ryan did not himself succumb to addictions although he has admitted to occasional use of marijuana.

[ 17 ] The first concern Ryan expressed after his arrest was for his mother, whom he was scheduled to meet at a restaurant. He told the investigating officers she was not well. Sadly, she died three months later.

[ 18 ] Notwithstanding the obvious emotional distress associated with the loss of his mother, and the distress of criminal proceedings, Ryan still pursued a pro-social lifestyle. He steadily devoted himself to his studies, and acquired his licence as a marine mechanic, as appears from a computer generated Learning History filed in evidence (Exhibit #6).

[ 19 ] He eventually secured full-time employment with Hurst Marina, the very employer he worked for part-time while in school and whose Christmas party he was attending the night of December 20, 2008.

[ 20 ] Unsolicited communications from customers of Hurst, (Exhibit #5) indicate that Ryan is a valued employee with a bright future ahead. I also took note of reports that Ryan has a skill in training others in the safe operation of motorized watercraft.

[ 21 ] With the money he received from his mother’s estate, Ryan made a mature decision and sold his interest in his mother’s home to his stepfather, against whom he bears no ill-will, and purchased his own home where he lives alone with his dog.

[ 22 ] Ryan has the support of a good family, and I have witnessed the presence of his family and his father in particular, who has travelled repeatedly to be at his son’s side throughout these proceedings.

Impact on Roy Hogben and the Community

[ 23 ] I had occasion to hear the evidence of 72 year old Roy Hogben at trial. He walked with an obvious limp yet made no effort to exaggerate his injuries.

[ 24 ] Mr. Hogben has no recollection of the accident. He remained in coma for almost a month after the car crash due to a closed head injury, as well as obvious trauma to his face. He was not discharged from hospital until early March 2009, and required treatment for over a year after his discharge.

[ 25 ] He required surgery to fuse a seriously fractured right ankle and a fractured right arm. He also suffered broken ribs and a punctured lung. Finally, he experienced soft tissue injuries to his neck and back which still cause him discomfort.

[ 26 ] Although an issue was raised as to whether Mr. Hogben’s Victim Impact Statement (Exhibit #2) secured by investigating officer Mullen of the Ottawa Police Service in an interview with Mr. Hogben on May 12, 2012, met the requirements of section 722 of the Criminal Code , these concerns go to weight only, as I am satisfied the contents of the statement are in keeping with the evidence Mr. Hogben provided at trial.

[ 27 ] The Victim Impact Statement indicates that, as a result of the accident, Mr. Hogben has not returned to work with Activox Electronics where he earned $25,000 to $30,000 a year at the time of the accident. His wife of 75 years was a personal support worker but stopped working to tend to his care. Both subsist on old age security and Mr. Hogben’s military pension.

[ 28 ] Although Crown counsel revealed that civil proceedings arising from the accident gave rise to a monetary settlement provided by Ryan and Hurst Marina’s insurers, which to some undisclosed extent addresses Mr. Hogben’s out-of-pocket losses, Mr. Hogben states that he was not fully compensated for his vehicle loss and cannot afford to maintain his pool or professional lawn care.

[ 29 ] Mr. Hogben is left with physical impairments limiting his ability to maintain his home and yard. He suffers chronic pain interfering with sleep.

[ 30 ] Yet, I accept Crown counsel’s description of Mr. Hogben: he is not one of those pro-active victims who has followed these criminal proceedings zealously to exact his “pound of flesh.” He has come to court when required to do so. Mr. Hogben presents as a stoic and uncomplaining individual. He chose not to come to the sentencing hearing, although aware of his opportunity to do so.

[ 31 ] While there was a civil settlement to compensate for some of Mr. Hogben’s out-of-pocket losses, there is nonetheless a significant loss society faces in the cost of medical care absorbed by the taxpayer for serious injury inflicted on innocent victims of drunk drivers who are hospitalized and require medical and rehabilitation services.

[ 32 ] In addition, society places an immeasurable premium upon the safety of its roadways and highways that are open to all members of the public. Each time a member of society falls prey to another impaired by alcohol, there is an incalculable loss to others and a collective outrage at the senseless harm done.

Legal Parameters

[ 33 ] The Criminal Code lays out the legal parameters for the sentencing of offenders convicted of alcohol-related crimes.

[ 34 ] Section 255 (2.1) provides that:

Blood alcohol level over legal limit — bodily harm

(2.1) Everyone who, while committing an offence under paragraph 253(1)( b ), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

[ 35 ] Section 259 (3.2) (b) provides a mandatory driving prohibition in addition to any punishment that may be imposed for driving under the influence of alcohol in excess of the legal limit causing bodily injury to another, for a first offender of no less than one year and no more than 10 years.

[ 36 ] By sections 718 to 718.2 of the Criminal Code , I am directed to take into account certain principles of sentencing, as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

( a ) to denounce unlawful conduct;

( b ) to deter the offender and other persons from committing offences;

( c ) to separate offenders from society, where necessary;

( d ) to assist in rehabilitating offenders;

( e ) to provide reparations for harm done to victims or to the community; and

( f ) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[ 37 ] Section 718.1 sets out the proportionality concept, as follows:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 38 ] Also, section 718.2 sets out the relevant mitigating and aggravating factors that come into play:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

( a ) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

( b ) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

( c ) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

( d ) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

( e ) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Position of the Crown

[ 39 ] The Crown invites me to impose a period of incarceration of between 18 months and two years less a day, plus a driving prohibition of five years. A period of probation is not pursued given the absence of rehabilitative issues according to the Pre-Sentence report. On the other hand, Crown counsel concedes that a significant number of hours of community service, employing Ryan Harrington’s obvious teaching skills at spreading the word on the dangers of drinking and driving, could be seen as a vehicle by which society could require Mr. Harrington to atone for the crimes he has committed.

Position of the Defence

[ 40 ] Defence counsel urges me to fashion a sentence that will not crush or arrest Ryan Harrington’s pro-social lifestyle. He suggests that Ryan may lose his home and employment with a lengthy period of incarceration but concedes that a conditional sentence is clearly off the table, having regard to the amendments to section 742.1 of the Criminal Code in effect from December 1, 2007, as recently confirmed by our Court of Appeal in R. v. Rawn , 2012 ONCA 489 at para. 44 .

[ 41 ] I am reminded that a fit sentence must not simply express society’s general denunciation and deterrence, but allow the offender reasonable opportunity to return to society as a contributing member of the public.

[ 42 ] Accordingly, I am invited to impose a period of three to six months jail, using a lengthy period of probation of as much as three years with community service, along with a driving prohibition to ensure Ryan’s compliance with strict terms.

Aggravating Factors

[ 43 ] There are three main aggravating factors in this case.

[ 44 ] First, Ryan Harrington’s admitted degree of impairment at the time of the accident. The toxicology report filed as part of Exhibit #1 at trial reveals his blood alcohol concentration readings, at almost three hours post accident, were 122 and 103 milligrams of alcohol in 100 milliliters of blood. Therefore, the projected blood alcohol concentration at 12:09 a.m., at the time of the accident, was 110 to 160 milligrams of alcohol in 100 milliliters of blood: up to two times the legal limit.

[ 45 ] Second, the degree of risk to others by the extremely dangerous driving described in the 911 calls cannot be denied.

[ 46 ] Third, the degree of injury and loss to Mr. Hogben need not be repeated. He is lucky to be alive. His life has nonetheless been permanently altered.

The Mitigating Factors

[ 47 ] There are many mitigating factors I take note of in this case:

1. Although Mr. Harrington did not enter a plea of guilt to the offences as charged, and therefore cannot acquire full credit for a plea in mitigation of sentence, he did nonetheless plead to the drinking and driving offences simpliciter thereby limiting the time and expense of trial. It goes without saying, his failure to plead to the offences as charged is not an aggravating factor and he was entitled to require the Crown to prove all elements of the offences charged.

2. He is a youthful and first offender with no criminal record and no further criminal offences since the date of the accident. However, I did note, with some dismay, his driving record (Exhibit #3) reflects three speeding offences: one in 2005, prior to the date of the accident, and two others in 2010 and 2011. I would have expected greater vigilance to observe all rules of the road under the circumstances.

3. He co-operated with police at the scene, and was released on his own Promise to Appear and has in all other respects been a law abiding and contributing member of society in continuing his schooling, pursuing a career and securing full-time employment.

4. He enjoys the support of his family, friends and employer.

5. He does not present with any addiction to drugs or alcohol.

6. I am satisfied the circumstances giving rise to the charges were an isolated event.

7. I am satisfied Ryan Harrington is genuinely remorseful for the crimes he has committed and will forever rue the day he did not accept an offer of transport from his employer’s Christmas party.

The Case Law

[ 48 ] In arriving at a fit and just sentence, I must start by acknowledging the primacy of general deterrence and denunciation of drinking and driving offences, as expressed by the Court of Appeal 25 years ago in R. v. McViegh (1985), 1985 115 (ON CA) , 22 C.C.C. (3d) 145 where at page. 4 of its decision, Associate Chief Judge MacKinnon said the following:

In my view, the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the “lower end” would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts’ repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

[ 49 ] More recently, in R. v. Ramage , 2010 ONCA 488 , 257 C.C.C. (3d) 261, at para. 76 , the Court of Appeal observed:

The danger created by the drinking driver’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random.

[ 50 ] In R. v. Junkert , 2010 ONCA 549 , 259 C.C.C. (3d) 14, at paras: 46 to 48, the Court of Appeal acknowledged that while the length of sentences in cases of impaired driving causing bodily harm vary considerably,

In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society’s abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

[ 51 ] In R. v. Rawn , supra , the Court of Appeal set aside a suspended sentence of incarceration with a two year period of probation with just the mandatory terms under section 732.1(1) of the Criminal Code along with a mandatory one year licence suspension for a first offender, and substituted a period of nine months incarceration and a five year driving prohibition in a case of dangerous driving that injured seven people, one who suffered permanent injury to her arm and the others, lacerations, concussion, bruises, and broken bones.

[ 52 ] In substituting the jail term for the suspended sentence, the Court noted that effective December 1, 2007, section 742. 1 of the Criminal Code was amended to exclude the availability of conditional sentences for serious personal injury offences, thereby signaling Parliament’s determination that drinking and driving will not be tolerated, and that in such cases, the requirements of general deterrence and denunciation necessitate the imposition of a period of incarceration. In increasing the driving prohibition, the Court of Appeal also noted that, in similar offences, a sentencing judge must make it clear that driving a motor vehicle is a privilege, not a right, which comes with responsibility. Failure to recognize this responsibility is the criminal conduct addressed in sentencing and at the core of bodily harm and potential bodily harm caused to innocent users of the highway. The Court of Appeal in Rawn cited, with approval, the views expressed by the Alberta Court of Appeal in R. v. Field , 2011 ABCA 48 , 499 A.R. 178, at para. 23 , as follows:

…driving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop a vehicle in time to avoid calamity cannot be treated as a youthful indiscretion.

[ 53 ] In the case before me, the Crown has referred me to the Court of Appeal’s decision in R. v. Goudreault (2004), 2004 34503 (ON CA) , 190 C.C.C. (3d) 19, where the Court expressed serious reservations in respect of a sentence of 60 days imprisonment, two years probation and a four year driving prohibition in a case of impaired driving causing bodily injury where the offender had a previous record of three drinking and driving offences. The trial judge noted the degree of impairment, the injuries to the victim, but ultimately concluded the offender had health problems, both physical and mental and that the leniency shown by what appeared to be an unfit sentence was offset by the probation order and the four year driving prohibition.

[ 54 ] In R. v. Van Puyenbroek , 2007 ONCA 824 , 226 C.C.C. (3d) 289, the Court of Appeal addressed the totality of the sentence imposed upon a first offender in the case of impaired driving causing bodily harm, dangerous driving causing bodily harm, failure to remain at the scene of the accident, and careless storage of firearms. In reducing the sentence of three years and six months for the driving offence including leaving the scene of the accident plus 60 days for the careless storage of the firearms, and further ancillary orders after a two-for-one credit for 55 days of pre-sentence custody, to three years based only on the principle of totality, the Court of Appeal noted that, notwithstanding the aggravating circumstances including hot pursuit of the offender who left the scene, a three year period of incarceration plus a consecutive sentence for leaving the scene was somewhat beyond the historical range.

[ 55 ] I note the Court in R. v. Khelawan , 2011 ONSC 51 , imposed a sentence of 18 months imprisonment plus six months less a day for failure to remain at the scene, two months concurrent imprisonment for failing to provide a breath sample and impaired driving, and a five year driving prohibition where a first offender struck and catastrophically injured a four year old in a residential area. The offender then left the scene, went home and consumed more alcohol, changed his clothing and later returned to the roadway without calling 911 or identifying himself as the driver involved in the accident.

[ 56 ] I also note the circumstances in R. v. Currell , [2010] O. J. No. 5719 (S.C.) , where the trial judge imposed a 12 month sentence, a DNA order, and five year driving prohibition following convictions on two counts of impaired driving causing bodily harm, one count of failing to remain at the scene, one count of driving with over 80 milligrams in the case of a 24 year old first offender who did not have an exemplary driving record and who was convicted of sexual assault after the driving offences.

[ 57 ] In addition, I note sentences of six months jail plus terms of probation of between 18 months and two years and driving prohibitions of 30 and 36 months respectively imposed by the Ontario Court of Justice in R. v. Gardiner , [2006] O.J. No. 3262 , and R. v. Wickman , [2002] O.J. No. 5155 , cases involving first offenders of favourable background involved in drinking and driving offences causing bodily harm. These cases pre-date changes to section 742.1 and the noted upward trend in jail terms for similar offences.

Reasons

[ 58 ] In my opinion, a fit and just sentence in the case before me must recognize the very serious nature of the driving offences, the permanent injury to Mr. Hogben and society’s denunciation of drinking and driving. At the same time, I do not minimize the very favourable contribution Ryan Harrington made before and after these offences to his family and community at large, his pro-social lifestyle since then and his willingness to do community service as a part of his sentence. He has nonetheless been free since the offences were committed to drive without limitation and without restraint on his freedom, and still has two driving infractions. I take all of these things into account and find that an appropriate sentence for driving with over the legal limits of alcohol causing bodily harm is one of nine months jail plus two years probation and a three year driving prohibition.

[ 59 ] With good behaviour, Mr. Harrington’s sentence will be served within six months and he will be back at work at the end of March in time for the spring season at Hurst. I am hopeful given the employer’s commitment to Mr. Harrington and Mr. Harrington’s credentials that his job will be waiting. I am also mindful that Mr. Harrington’s home will be empty for at least six months with a mortgage to meet. I am sure Ryan and his family have considered the potential for jail in this case, and will carry the cost or rent the house over the jail term.

[ 60 ] The terms of probation will include the following:

1. To report within two working days of the end of his jail term to a probation officer as directed.

2. To attend any assessment and program of counselling as may be required by the probation officer.

3. To remain within the province of Ontario and notify the probation officer of any change in address.

4. To abstain from the purchase, possession and consumption of alcohol and non-prescription drugs or other intoxicating substances other than in his home.

5. To perform 100 hours of community service, preferably with youth or others who may become involved with drinking and driving.

6. Make reasonable efforts to maintain employment.

[ 61 ] I trust counsel will ensure that Mr. Harrington fully understands these terms.

Caution to Offender under Probation

[ 62 ] I must now provide Mr. Harrington with some advice as an offender who will be bound by a probation order.

1. Upon application being made, a court may order you to appear before it and make changes to any optional conditions that may have been imposed upon you and/or relieve you, to one extent or another, of compliance with any optional conditions and/or decrease the period for which the probation order is to remain in force.

2. If you are convicted of an offence while bound by this probation order, you may, on application being made by the prosecutor, and depending upon the situation that confronts the Court in your particular case, see the life of the probation order extended or optional conditions changed in addition to any sentence for the new offence.

3. It is an offence punishable by up to two years imprisonment for one who is bound by a probation order, to fail or refuse to comply with the order, absent reasonable excuse.

4. If at any time while you are bound by the probation order you wish to apply to the Court to have the life of the probation order decreased, or changes made to any of the optional conditions, or to be relieved of the necessity to comply with an optional condition, you must file an application to that effect in the court’s registry and serve a copy that application on the office of the Crown counsel. Your application will then in the ordinary course be heard by the Court.

[ 63 ] Those are my Reasons, subject to any further ancillary orders counsel may wish to address.

Madam Justice Toscano Roccamo

Released: September 25, 2012

COURT FILE NO.: 09-0015
DATE: 20120925

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – RYAN HARRINGTON

REASONS FOR senTencing

Madam Justice Toscano Roccamo

Released: September 25, 2012