SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JOSEPH ARLOW
BEFORE THE HONOURABLE JUSTICE MULLIGAN
on March 12, 2013 at Barrie, Ontario
APPEARANCES:
F. Faveri Counsel for the Crown
M. Malick Counsel for the Defence
SUPERIOR COURT OF JUSTICE
T A B L E OF C O N T E N T S
Exam. Cr.- Re-
WITNESSES in-Chief Exam Exam
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
TRANSCRIPT ORDERED.........................March 13, 2013
TRANSCRIPT COMPLETED.......................March 25, 2013
ORDERING COUNSEL NOTIFIED..................April 4, 2012
R E A S O N S F O R S E N T E N C I N G :
MULLIGAN: J. (Orally):
After a jury trial which concluded on February 7th, 2013, the jury considered a seven-count indictment. The jury found Mr. Arlow not guilty of impaired driving causing bodily harm (Count 1) and not guilty of assault (Count 6). The jury found Mr. Arlow not criminally responsible (NCR) for being involved in an accident with intent to escape criminal or civil liability (Count 4). The jury found Mr. Arlow guilty of four counts as follows:
• dangerous driving causing serious bodily harm, Code s. 249 (3), which was count 2
• failing to stop a vehicle while being pursued by a peace officer, causing bodily harm, Code s. 249.1(3), which was count 3.
• resisting arrest, Code s. 129, which was count 5
• obstructing a peace officer in the execution of his duty, Code s. 129, which was count 7
At the sentencing hearing, the Crown submitted Victim Impact Statements from three police officers and a copy of Mr. Arlow’s record. In addition, the Crown called evidence from a police officer as to the presence of, and the serious consequences flowing from high-speed police chases.
Although the court did not have the benefit of a pre-sentence report, a considerable amount of evidence about Mr. Arlow was gleaned during the trial itself, including evidence from a psychiatrist and his own evidence.
The jury found Mr. Arlow guilty of three offences, which occurred on the 2nd day of February 2010. In addition, they found him guilty of the fourth offence, obstructing a peace officer, which occurred on the 3rd day of February 2010.
It is not necessary to review all the evidence which the jury heard, but the following overview will provide context for this sentencing decision.
Mr. Arlow was driving a vehicle at Base Borden on February 2, 2010. I will divide the driving into two separate streams. The first stream led up to his crashing into the front of the No Frills store after he rear-ended another vehicle. One specific count coming out of this stream was a charge of being involved in an accident with intent to escape civil or criminal liability. The jury heard evidence from Dr. Anne Jones, Mr. Arlow’s psychiatrist, who met with him and treated him pursuant to a 60 day assessment which was ordered after his arrest. It was her view that he was not criminally responsible for the conduct which occurred up to and including this collision at the No Frills Store. The jury found him not criminally responsible, and, therefore, I do not consider any of the facts of his driving to that point in the sentencing decision that follows.
My consideration of the driving conduct and other activity begins after Mr. Arlow drove away from the No Frills store. It was the psychiatrist’s opinion that he was criminally responsible and had intent to flee the police. The jury found him guilty of three counts based on the activity that followed, and rejected a consideration of not criminally responsible for those three counts.
A brief review of that activity will assist. Mr. Arlow drove away from the accident at the No Frills, but the Military Police on the base were notified and an officer began following him. Mr. Arlow was driving at high speed and ignoring lights and sirens from the vehicle in pursuit. The officer indicated he was not authorized to conduct a high speed pursuit within the base, so he lost sight of Mr. Arlow. He continued to follow and when he got to the north gates, Mr. Arlow had already crashed through the gates by passing parked vehicles that were stopped at the request of the Military Police. He barged through the gates causing minor damage to the gates. Several witnesses observed that activity.
The O.P.P were notified and two officers in plain clothes saw Mr. Arlow’s vehicle and began following it on County Road 90. They called for the assistance of a marked vehicle, and Officer Majer came on the scene in a marked cruiser and began to follow Mr. Arlow with lights and sirens flashing. The pursuit continued on County Road 90, but the vehicle stayed in traffic and Mr. Arlow did not pass any other vehicles in a zone that had a speed limit of 90 kilometres per hour. After a period of time, he pulled over on the shoulder, and Officer Majer exited her vehicle and went to his driver’s side window. She attempted to speak to him and requested he roll down the window. He refused to do so. By this time, the plainclothes officers in their van had arrived on the scene, and Officer Scott positioned himself on the passenger side of the van to provide further assistance. However, Mr. Arlow ignored the commands of Officer Majer and, instead, sped away from the scene. In so doing, he ran over the foot of Officer Scott, who was positioned beside the passenger side of the van. As events would later turn out, the officer’s foot was broken. He later required medical attention, a cast, and was off work for a time. Although Mr. Arlow’s activities caused the injury, there is no evidence that he was specifically aware of Officer Scott or had a specific intent to cause bodily harm. But, certainly, his driving and failure to stop or remained stopped caused the injury.
Officer Majer continued the pursuit along County Road 90. In the meantime, Officer Dolan had been engaged further along the road. She parked her cruiser with lights and sirens flashing, stopped vehicles coming from the other direction, and when she observed Mr. Arlow’s van, deployed a spike belt and took up a position of safety. Mr. Arlow avoided the spike belt by driving around it, using the shoulder. The pursuit continued on County Road 90 until Mr. Arlow turned north on George Johnson Road, closer to the City of Barrie. At this point, an officer from the Barrie Police Services joined the pursuit. He attempted to pass Mr. Arlow because the officers intended to to do a rolling block to stop Mr. Arlow. He was unsuccessful in passing him, but his vehicle was bumped in the process. Mr. Arlow was veering into the oncoming lane at times. Officer Majer was able to get out in front of Mr. Arlow, but her vehicle was bumped in the process, as well. At this point, it was a low-speed chase, but the officers were concerned about Mr. Arlow, based on previous incidents, and the fact that they were approaching a hill. They were concerned that Mr. Arlow’s veering into the improper lane could have caused a collision with an oncoming vehicle coming down over the hill. In fact, there was a vehicle coming, it stopped at the top of the hill. The driver observed the police activity.
The officers were able to stop Mr. Arlow, using this rolling block procedure, and after some resistance, he was extricated from his vehicle and taken into custody. In addition to the bodily harm to Officer Scott, the evidence before the court indicated damage to two police vehicles caused by the bumping impacts during this rolling block procedure.
The jury heard evidence that Mr. Arlow resisted Officer Majer’s attempts to arrest him during this chase. She attempted to arrest him once on County Road 90 and he refused to leave his vehicle and sped off. She then attempted to arrest him on George Johnston Road, and after a time and some struggle was able to extricate him was able to extricate him from the vehicle and place him under arrest.
The next day, February 3rd, 2010, Mr. Arlow was in custody at the courthouse awaiting a bail hearing. The jury heard evidence that when the name of another accused was called, Mr. Arlow answered that that was his name, and that caused this officer to bring Mr. Arlow up from the holding cells into the courtroom. Mr. Arlow identified by that other name in court when that name was called, but the error was quickly corrected because his mother was in the courtroom and identified that it was in fact Mr. Arlow before the court. Mr. Arlow was returned to the holding cells and processed later in the day. The jury found Mr. Arlow guilty of obstructing the peace officer in the execution of his duty in connection with this incident.
The jury found Mr. Arlow not criminally responsible with respect to Count 4, being involved in an accident with intent to escape civil or criminal liability. In accordance with the provisions of the Criminal Code, Mr. Arlow has been referred to the Ontario Review Board for a disposition hearing, which is evidently scheduled for March 27th, 2013.
Count 2, dangerous driving causing serious bodily harm, and Count 3, failing to stop the vehicle while being pursued, causing bodily harm, covered the same factual matters which led to the bodily harm to Officer Scott, his broken foot. The Crown submits that Count 2, dangerous driving causing bodily harm should be stayed conditionally based on R. v. Kienapple principles. (R. v. Kienapple, [1075] 1 S.C.R. 729)
[Abridged note: the full transcript text continues verbatim in the original decision.]
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Debra Byrne, certify that this document is a true and accurate transcript in the recording of R. v. Joseph Arlow in the Ontario Court of Justice, held at Courtroom No. 1 , Barrie Courthouse, 75 Mulcaster Street, Barrie, Ontario, taken from Recordings 3811-01-20130312, which has been certified in Form 1.
April 2, 2013
Debra Byrne,
Certified Court Reporter