ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11334
DATE: 2014/06/13
BETWEEN:
Her Majesty the Queen
Ms. Jennifer Moser, for Her Majesty the Queen
- and -
Darrin Norton
Mr. Brian E. Chambers, for Mr. Norton
HEARD: May 5, 2014
BRYANT J.:
REASONS FOR SENTENCE
I The Offence
[1] Ms. Moser, counsel for the Crown, and Mr. Chambers, counsel for the defence, filed an agreed statement of facts (exhibit #1).
[2] Joshua Switzer was jogging southbound in the middle of the southbound lane of Highbury Avenue, just north of Fanshawe Park Road, in London, Ontario, at around 4 a.m. on May 19, 2012. Mr. Switzer was wearing dark clothing and running shoes.
[3] Mr. Darrin Norton was driving his pickup truck between 60-70 kms per hour in a southbound direction on Highbury Avenue. Mr. Norton’s son Tyler was in the truck with him, as they were returning from an overnight camping trip. Mr. Norton’s truck struck Mr. Switzer from behind as he was running in the middle of the southbound lane. Mr. Norton did not see Mr. Switzer until just before impact; he applied his brakes, but he could not avoid hitting him. The collision occurred on May 19, 2012 at approximately 4 a.m.
[4] The impact of the collision between the vehicle and the deceased caused Joshua Switzer to be thrown backwards and strike the pavement. The force of impact caused Mr. Switzer to be knocked out of his shoes. The autopsy report stated that the force of the impact from Mr. Norton’s vehicle and the striking of the pavement caused his immediate death.
[5] Mr. Norton did not recall applying his brakes before his vehicle struck Mr. Switzer. The police inspection of the scene showed there were dual skid marks on the road indicating that Mr. Norton had applied his brakes just before contact with Mr. Switzer.
[6] On May 23, 2012, Mr. Norton was interviewed by the police, commencing at 7:14 a.m. and concluding at 9:57 p.m. that same day. Mr. Norton told the officers that he momentarily brought his vehicle to a stop after hitting the deceased. The offender’s son tried to get out of the vehicle. Mr. Norton panicked, not wanting his son to see what he thought was probably a dead body, and decided to leave the scene.
[7] Mr Norton explained to police that he left the scene without rendering any aid or assistance to Mr. Switzer. Mr. Norton did not call for assistance and instead he continued driving home to his residence in St. Thomas, Ontario. Mr. Norton did not report this accident to the police.
[8] Mr. Norton returned to the campground the next day and explained to neighbouring campers or friends that the damage to his vehicle had been caused by a deer that he hit while driving home earlier that morning. Ms. Laura Ball was present when Mr. Norton explained that the damage to his vehicle had been caused by hitting a deer. Ms. Ball and her partner, Mr. Fox, both noted that the damage was far too narrow to be consistent with hitting a deer.
[9] A police media release was prepared with a description of the time and location of the accident. In response to the public appeal, the police received information from one of the campers at River View Campground who had seen Mr. Norton’s vehicle the morning after the collision. On Monday, May 21, 2012, Laura Ball contacted the police and informed the officers about the damaged vehicle and its colour. The police were interested in obtaining a statement from her because they had not released the colour of the vehicle to the public. After Ms. Ball provided her statement to the police, the police became aware of the identity of Darrin Norton and other information about him.
[10] The O.P.P. conducted surveillance of Darrin Norton and his damaged pickup truck. Mr. Norton was arrested on Tuesday May 22, 2012 at 7:21 p.m.
II The Offender
[11] Mr. Norton is 35 years old. He has a high school education. He shares joint custody of his son Tyler with his former common law spouse and is actively involved in raising his son. He and Tyler currently live with his cousin and her children and boyfriend. He also has a close relationship with his younger brother.
[12] He worked at a factory in St. Thomas for more than a year but it has since closed. He was employed at a local factory but is currently unemployed and hoping to be called back. He has found work through an employment agency and reported his income to Legal Aid which resulted in the cancellation of his Legal Aid certificate.
[13] Dr. Robert Floyd, a family physician, informed the probation officer that Mr. Norton presented as “extremely depressed, crying, stressed regarding an accident that he was involved in the early morning hours May 19, 2012”. The physician prescribed medication to assist the offender with his psychological status.
[14] Since Mr. Norton’s initial appointment on May 25, 2012, the offender has attended at his family physician’s office on at least six occasions for counselling. The physician prescribed relaxants and antidepressants to assist the offender to deal with the ongoing physiological effects of the accident, such as stress, anxiety and intermittent bouts of spontaneous crying. Dr. Floyd told Mr. Norton to continue meeting with his psychologist Dr. Lee for counselling.
[15] Dr. Lee first saw the offender in July 2012. The probation officer reported that Mr. Norton attended 14 sessions from September 2012 to April 2013 to assist him with his depression and anxiety. Dr. Lee confirmed that the offender has made considerable progress in therapy. The psychologist reported that the offender “was quite emotionally affected when they discussed details of the accident and his attempts to cope since the accident.”
[16] The probation officer reported that Mr. Norton presented as a very remorseful person who accepted full responsibility for his actions. She writes that the offender demonstrated a willingness to make amends and understood the trauma and hurt that has been caused to the victim’s family.
[17] Mr. Norton has a minor criminal record. He was convicted of theft under $5,000 on May 27, 1997 and was fined $75. Defence counsel advised it was a shoplifting offence. The theft conviction is an unrelated offence which occurred 17 years ago. The offender’s dated and unrelated criminal record is not an aggravating circumstance in the context of this case.
[18] Mr. Norton gave a voluntary statement to the police upon his arrest. He admitted that he was driving the vehicle which struck Joshua Switzer. The offender waived his right to counsel and answered the questions the police officers asked him. Mr. Norton has pled guilty to the offence before the court.
III Letters of Support and Victim Impact Statements
[19] The offender’s father, mother, brother and a cousin have provided letters of support. The offender’s parents write that “their son, Darrin, is at the bottom of a very deep abyss and will likely blame himself during his lifetime.” Although their letters are written in support of their son, they recognized the immense loss suffered by the Switzer family and that this unfortunate incident impacted both families.
[20] Members of the Switzer family completed victim impact statements and read them in court. The death of Joshua Switzer has deeply affected the family members and will continue to do so for an indefinite period. Mrs. Switzer stated in her Victim Impact Statement that: “It’s impossible to describe how completely and horribly this senseless, careless, accident has changed everything. So we do what’s necessary - each of us - every day, just to survive”. This case was a tragedy that clearly affected both families.
IV The Issue
[21] The sole issue before me is the appropriate sentence for the offence of leaving the scene of an accident with the intent to escape civil or criminal liability. I point out that the offender was not charged with any driving offences under either the Highway Traffic Act or the Criminal Code relating to the cause of death nor could there have been based on the facts provided to the Court by counsel.
V Position of the Parties
[22] It is the position of the Crown that the Court should sentence the accused to a penitentiary sentence of two to three years. Crown counsel further submits that a D.N.A. order and a three year driving prohibition should be imposed.
[23] It is the position of counsel for the defence that the Court should levy a large fine together with probation with a significant community service component. In the alternative, defence counsel submits an intermittent sentence and a period of probation with a significant community service. Counsel further submits that there should be no further licence suspension since Mr. Norton’s driving privileges have been suspended since his arrest in May 2012.
V Analysis and Decision
[24] Mr. Norton was charged as follows:
that on or about the 19th day of May 2012 at the city of London did, having the care, charge or control of the vehicle on Highbury Avenue, near Fanshawe Park Road that was involved in an accident with another person and knows that bodily harm was caused to that person, namely Joshua Switzer, and is reckless as to whether the death of that person results from that bodily harm and the death of Joshua Switzer resulted, with intent to escape civil and criminal liability, fail to stop the vehicle and give his name and address, contrary to section 252 subsection (1.3) (b) of the Criminal Code.
[25] I do not find that a two or three year penitentiary sentence, a D.N.A. order and a three year licence suspension is an appropriate sentence in the context of all of the evidence. Nor do I find that a large fine or an intermittent sentence is appropriate. For reasons that follow, I find that a five month jail sentence followed by a two year period of probation with a community service component of 100 hours is appropriate in the context of the surrounding circumstances.
[26] Earlier on May 19, 2012, Mr. Switzer had been told by a police officer to go to his friend’s residence and stay the night. Unfortunately, Mr. Switzer decided to run home from his friend’s residence and while he was running home in the southbound lane he was struck from behind by Mr. Norton’s truck which was travelling in the same direction as the deceased. The autopsy report stated that Mr. Switzer was instantly killed upon being struck in the collision.
[27] The Crown must prove aggravating facts beyond a reasonable doubt. For example, Crown counsel suggested in argument that the court should find that Mr. Norton left the scene of the accident because he had been drinking. There is no direct or circumstantial evidence that would permit the court to find the offender was drinking and driving the truck. Similarly, there was no evidence that Mr. Norton was driving carelessly or recklessly contrary to the Highway Traffic Act or the Criminal Code just prior to or when the accident happened.
[28] Mr. Norton was control of a vehicle that was involved in an accident with Mr. Norton. He knew that the collision had caused bodily harm to a person but he did not know whether the pedestrian was alive or dead. Mr. Norton, with the intent to escape criminal or civil liability, failed to stop and offer assistance to Mr. Switzer as he was required to do under the Criminal Code and the Highway Traffic Act.
[29] Mr. Norton provided an excuse that he panicked and wished to protect his son. Assuming without deciding the matter that he was justified in driving his son home, Mr. Norton went back to the campground later that day and told other campers that he hit a deer. This was not true. Mr. Norton did not take any steps to inform the police that he was responsible for hitting Mr. Switzer. When he realized that the police had grounds to believe that he was the driver of the vehicle, he told the police that he struck the victim and took responsibility for crime of failing to report.
[30] Section 718 of the Criminal Code states:
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 assist in rehabilitating offenders; and
(d) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[31] The Ontario Court of Appeal has consistently held that general deterrence is a paramount principle in a sentence imposed for leaving the scene of an accident. In R. v. Ramdass [1982] O.J. No. 177, at para. 6 and R. v. Gummer [1983] O.J. No. 181, para. 15 the Court of Appeal stated:
But, in a crime of this type the deterrent quality of the sentence must be given paramount consideration and here I am using the term "deterrent" in its widest sense. The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
[32] Mr. Norton has accepted responsibility for his conduct and in my view, it is one of the reasons he needed counselling for his failure to meet his civic duty.
[33] The principle of denunciation is another applicable sentencing principle for this offence. When Mr. Norton left the scene of the accident he did not know if Mr. Switzer was alive or dead. He failed in his duty to determine whether Mr. Switzer was alive or dead as he was lying prone on the roadway and investigate if he needed assistance.
[34] The offender failed to take any measures to protect the runner from other vehicular traffic and thereby breached the Criminal Code and any standard of decency and humanity. It is morally reprehensible and a lack of responsibility to leave an injured or dead victim at the scene of an accident (R. v. McAndrew, 2004 BCCA 368, [2004] B.C.J. No. 1345 (B.C.C.A.); R. v. Ramdass, supra, at para. 5).
[35] The offender’s decision to leave the scene also deprived the police of knowing what the accused was like and his condition at the time the offence occurred (R. v. Lisa, [2001] B.C.J. No. 2006 (B.C.C.A.), at para. 7).
[36] I find a large fine, an intermittent sentence or a conditional sentence would not be appropriate for the subject crime to satisfy the principles of denunciation and deterrence.
[37] There are a range of sentences for this offence in the jurisprudence. The penalty could be a fine or a three or six month custodial sentence (see R. v. Fernandes, [1989] O.J. No. 1098 (Ont. C.A.). An upper range of sentence for this class of offences could be levied where an accused is a repeat offender, was driving without a licence or insurance, was impaired or was driving dangerously or in a criminally negligent manner. As mentioned, the accused in this case faced a single count of failing to remain at the scene of the accident.
[38] Mr. Norton has admitted his guilt, has accepted full responsibility for the offence and has expressed his sincere remorse. I am satisfied that he will be deterred from committing this or similar driving offences in the future. The offender’s criminal record consists of a dated shoplifting conviction. Apart from the present offence, he has been a contributing member of society and has worked to provide for himself and his son Tyler.
[39] I sentence Mr. Norton to a five month custodial sentence to be followed by two years of probation with the statutory terms and 100 hours of community service. I do not impose a licence suspension as it has been suspended for two years.
Justice A. W. Bryant
Delivered Orally: June 13, 2014.
COURT FILE NO.: 11334
DATE: 20140613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Darrin Norton
REASONS FOR SENTENCE
BRYANT J.
Released: June 13, 2014