COURT FILE NO.:10999
DATE: 2014/05/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
E. McGuire, for the Crown
- and -
MITCHELL RILEY
F. Brennan, for the Accused
HEARD: May 20, 2014
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On May 20, 2014, Mr. Riley pleaded guilty to five counts, namely; criminal negligence causing death, criminal negligence causing bodily harm, impaired driving causing death, impaired driving causing bodily harm and possession of stolen property, a motor vehicle of a value exceeding five thousand dollars, all contrary to their respective provisions in the Criminal Code.
[2] Given the history of this case and the personal health of the accused, with the consent of all parties, following counsels’ respective submissions, I sentenced the accused with the proviso that my written reasons for judgment would follow. These are my reasons.
Circumstances of the offence:
[3] All of these charges stem from events that occurred in the City of London on May 22, 2010. Mr. Riley was in possession of and driving a motor vehicle belonging to and reported stolen by its owner Sarah Cross. Mr. Riley was travelling at an excessive speed, failing to negotiate a traffic control device, and then lost control of the vehicle; it flew four to five feet through the air and collided into a house on Langarth Street in London, causing extensive damage to two dwellings. As a result of the collision, Mr. Card lost his life and Mr. Justin John-Scott suffered injuries. Mr. Riley sustained serious life-threatening injuries.
[4] An investigation ensued and Mr Riley was found to have had a blood alcohol reading of 292 milligrams of alcohol in 100 millilitres of blood.
Victim Impact statement
[5] No Victim Impact Statements were received from members of Justin Card’s family or from Jordan John-Scott or his immediate family. The victim impact Statement of Kevin Temple and Ian Wombell were entered as exhibits. Both authors relate the extent of the damage that ensued as a result of the accused’s conduct in driving the vehicle that impacted with the houses. The authors also revealed the very real potential for serious harm or worse to young family members who were at the very location just prior to the collision. It was indeed fortuitous that no one from these households were killed or injured.
Circumstances of the offender:
[6] A Gladue report was prepared. While the entire report was considered, only brief segments are presented in this judgment.
[7] Mitchell Riley is 24 years old, born in London, Ontario, November 8, 1989. Mitchell identifies as Chippewa (Ojibway or Anishinabek), from the Chippewa of the Thames First Nation (COTTFN). His mother is Leslie Riley and his step-father is William (Bill) Berryhill. Mitchell was raised with his two younger half-sisters, Cimarron age 21 and Leslie age 19. Bill is the biological father of both Cimarron and Leslie
[8] Leslie indicated that Mitchell’s great-grandmother Norma went to Residential School. Leslie was told that Norma had spent time in a mental institution. Leslie stated that Norma doesn’t like to talk about her experience and just wants to forget it.
[9] Mitchell did not grow up on the reserve. He was not taught any traditional/cultural teachings. When he was a child, he was exposed to Christianity (specifically, the Baptist denomination). He recalled a two year period (during one of his parent’s separations) when his mother had stopped drinking and smoking, she took him and his sisters to the Lighthouse Baptist Church four times a week. Leslie stated that she stopped taking them to church for a number of reasons. Her mother’s extended family didn’t support her choices and made their lives difficult by criticizing and belittling what they were doing. And Mitchell was losing friends because she (Leslie) would not allow them to visit or hang-out together, unless they went to church with them. Leslie asserted that it was just too hard on them and they eventually went back to the way things were, which involved “drinking and partying.
[10] Mitchell moved out of the parental home at age 18 because, he and his girlfriend Sarah were starting a family of their own and wanted their own place. Ontario Works was their main source of income because he lacked employment skills and only worked casual jobs (“under-the-table”).
[11] According to Mitchell, his relationship with Sarah McLeod was his only meaningful relationship. Sarah is Oneida, from the Oneida of the Thames First Nation. Mitchell was involved with her for five years and they have a four year old daughter, Alexis Rose Chrisjohn, born January 24, 2009, who is in Sarah’s care.
[12] Mitchell claimed that the Children’s Aid Society (CAS) was never involved with his family and hopes it won’t be involved in his daughter’s life either. Mitchell hopes that his daughter will be taught good values and that her life will be free of drugs and alcohol. He would like to do right by Alexis and is hopeful that someday he will have an opportunity to take part in raising her.
[13] Mitchell and collateral interview sources described a childhood of extensive exposure to alcohol and drug abuse by his parents. He indicated that although he did not witness any physical altercations, his parents were often verbally and emotionally abusive towards each other while under the influence, and they separated many times.
[14] Mitchell related that the one and only time he smoked marijuana, he experienced a panic attack. As a result, he claims to have never used it again, nor has he used any non-prescribed drugs. Mitchell stated that he believes he suffers with various FASE/FASD related issues due to his mother’s alcohol use while pregnant with him. In the future, he may seek an assessment through the Southwest Ontario Aboriginal Health Access Centre (SOAHAC) in London.
[15] With respect to health issue, the author writes that Mitchell must have intravenous feeding due to having his entire small intestines removed in May 2010. As the result of injuries sustained in the accident, he cannot eat food or drink any fluids, and requires seven nutrition and saline intravenous bags administered through a “pic line” in his left arm every week. The veins in his right arm have all collapsed and are no longer useful for intravenous feeds; and when the veins in his left arm are used up, he will need the pic line to be inserted into a vein in his chest. Mitchell’s medical situation must be monitored around the clock because he is extremely high-risk of contracting a bacterial infection that could cause his death. He has already survived two serious infections that required two blood transfusions. Mitchell also has bleeding ulcers and receives dilated pain medication eight times daily.
[16] Mitchell stated that since his incarceration at Maplehurst, he has turned to prayer and bible study and is proud to have completed four out of eight courses in his bible study course. Mitchell started psychological therapy in June 2012 at the Maplehurst Complex with a student intern placement. When her placement was completed, he began therapy with Dr. Sandy Moniz until June 2013.
[17] Mitchell’s criminal record began as a youth beginning in 2006 and continued until being charged with the matters before the Court. He has served several short periods of incarceration since becoming an adult in 2008. Mitchell’s Ministry of Community Safety and Correctional Services file indicates that he has several Fail to Comply convictions as part of his criminal record. Mitchell disclosed that all of his troubles with the law have been related to alcohol and the poor decisions he made while he was intoxicated.
[18] In summing up, the author writes that Mitchell is currently incarcerated at the Maplehurst Correctional Centre. Due to his severe medical condition, he has been held in the Maplehurst Infirmary and will continue to be until sentenced. Over the last several months, Mitchell has been meeting regularly with the Native Inmate Liaison Officer (NILO), Anthony Bomberry, who provides culturally appropriate counselling and advocacy services for inmates, their families, the institution and other social agencies.
[19] Mitchell’s future plans include maintaining treatment for his medical issues, obtaining alcohol abuse counselling and upgrading his education in order to obtain his GED. Mitchell expressed an interest in upgrading his education to pursue a career in auto body repairs, but due to his fragile state of health, will likely have to reconsider. He stated that his primary goal for the future is to secure suitable employment in order to financially support his daughter.
[20] Ms. Brennan filed extensive medical documentation with respect to her client. A small segment of the clinical report and doctors’ notes reads as follows: This unfortunate 22-year-old was in a motor vehicle accident and severed his superior mesenteric artery and a subsequent bowel resection. This resulted in a complete loss of his small bowel from the ligament of Treitz to the splenic flexure of his colon. He is left with a G-tube sucking out all of the contents of the stomach and all the secretions from his pancreas and liver. He also requires ongoing TPN every night, as well as daily hydrations. Mitchell has pain related to ulcerations. He is taking 40 mg of pantoprazole twice a day to be given prior to and after his TPN run. I understand that the court is proceeding with trial and sentencing. Mitchell was certainly responsible for the accident and the death of his friend. However, he is being sentenced to his own prison – a prison much worse than one would get in society. He has to hook himself up to an IV at least 12 hours a day, plus giving him 2 additional 2-hour runs of hydration. He has to have all his pancreatic and gastric secretions emptied out of his stomach and these secretions have to be made up by intravenous fluids. His energy is nothing. He requires extensive attention by his parents for his physical needs.
[21] Mr. Riley has a prior youth and criminal record, including convictions for theft, assault, dangerous operation of a motor vehicle, fail to stop for police, carrying concealed weapon and failing to comply with recognizances. Mr. Riley has received some time in jail, albeit at the low end of the reformatory range.
[22] Regarding the offence for which Mr. Riley is now before the court, he has expressed sincere remorse for his behaviour and his desire to continue with treatment and counselling and to re-connect with his aboriginal community.
Positions of the parties:
[23] Ms. McGuire takes the position that the remaining portion of his sentence left to be served for this offender ought to be two years less a day in a reformatory. Ms. McGuire’s position is premised on the accused’ health condition and the care that he has received while at Maplehurst. The Crown also sought a three-year term of probation and various ancillary orders including a free-standing restitution order.
[24] Ms. Brennan submits that the appropriate sentence must fall in the reformatory range and ought to be set at 15 months, once the appropriate credit of 810 days for pre-plea custody is deducted on a 1:1 basis. Ms. Brennan submits that based on the guilty plea, Mr. Riley’ understanding and acknowledgment of his personal issues, his dire medical situation combined with the emotional support he enjoys from family and close friends, the proposed term of incarceration would best meet the principles of deterrence and denunciation. There is essentially no issue with respect to the ancillary orders.
Case law:
[25] I have been provided with cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed.
[26] Clearly, no party takes issue that for these types of offences involving impaired driving causing death and bodily harm, the range of sentence falls in the penitentiary range. It seems when one extracts the essence of these offences from the jurisprudence proffered before me, the authorities provide for sentences in the single digit penitentiary range for these types of offences. Of course, the individual circumstances of the offender must be taken into account. In considering these cases and the jurisprudence generally, I appreciate that the range of sentence varies considerably. I can only conclude that the range of penalty is very broad and the particular circumstances of this case must be carefully considered.
Analysis:
[27] The court is guided by the principles of sentencing as set out in ss. 718 and 718.2 of the Criminal Code.
[28] As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives, relevant to this case, are denunciation of the unlawful conduct, deterrence of other potential offenders and rehabilitation of Mr. Riley. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[29] Section 718.2 addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. I have not neglected to consider all of the other principles listed in ss. 718 and 718.2 of the Code including rehabilitation and other relevant factors in deciding what sentence to impose. I am also compelled to consider the Gladue report and the principles is s. 718.2(e): R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.).
[30] In this case, the principles espoused by the Supreme Court in Gladue and its prodigy have less bearing and weight to the circumstances of the offender and these very serious offences. According to the author of the Gladue report, Mr. Riley has had ostensibly no connection to his aboriginal heritage and his knowledge of and participation in his Aboriginal culture was negligible. Only recently has he become aware of his cultural heritage. While there is some reference to the accused’s great-grandmother and residential schools, the link is tenuous and I do not find any nexus with any systemic discrimination and hardship that befell aboriginal members of our society and this particular accused: R v. Whiskeyjack, 2008 ONCA 800, [2008] O.J. No. 4755 (C.A.) at paras. 30 and 31, R. v. Bauer, 2013 ONCA 691 at para. 13 and 14.
[31] In my opinion, Ms. McGuire’s approach to the sentence to be imposed in this case is not only reasonable, but extremely compassionate. Ms. McGuire acknowledged Mr. Riley’s dire medical situation. Mr. Riley, can never consume food or liquid orally. He needs to be nourished intravenously. He will be under constant doctors’ care and significant medical intervention for the remainder of his life, which may be abbreviated due to his serious medical condition.
[32] There is little doubt that Mr. Riley brought this on himself, however, one cannot lose sight of the pain and punishment Mr. Riley must now endure well after he is released from any period of incarceration.
[33] There are some mitigating factors. Indeed, I must be cognizant of that fact and am concerned about Mr. Riley’s prospects and health. I am persuaded that Mr. Riley has insight into his issues and had learned form this very unfortunate incident. He has the support of family members and his community and has commenced to address some of his issues.
[34] Mr. Riley has the backing of friends and family members and he especially enjoys the support of his girlfriend or common law, Sarah Biddle. He has commenced with counselling and has indicated that he will continue to do so when released. He wants to reintegrate with the aboriginal community and is desirous in speaking out against the perils of drinking and driving.
[35] A significant mitigating factor is that Mr. Riley has pleaded guilty to very serious charges. In my view, a plea of guilt is a serious mitigating factor, as it demonstrates remorse and acceptance of responsibility for the misconduct. Mr. Riley has also shown some remorse by virtue of his statement to the Court.
[36] In my view, the aforementioned factors are an indication that specific and general deterrence and denunciation are required. However, the medical issues are significant and that rehabilitative programs may be of ultimate benefit to him must be considered in the overall mix of factors that go into determining a fit sentence.
[37] The delay in resolving this case does not fall at the feet of Mr. Riley. There were many other factors beyond Mr. Riley’s control that perpetuated and accounted for the delay in resolving this matter. I agree with Mr. Brennan there is some merit to her argument and that factor is a valid consideration for my decision. As mentioned to counsel, even if I accede to Ms. Brennan’s submissions, pursuant to the principles in s. 719 and Part XXIII of the Code, based on the nature of the detention order in this case, I cannot provide more than the statutorily mandated 1:1 credit for pretrial custody. However, in order to give effect to the loss of statutory earned remission that befell Mr. Riley through no fault of his own, I will reflect these considerations through the exercise of my discretion as to the global sentence to be imposed. In other words, I would likely have imposed a much lengthier sentence in this case but for the issue of delay and the loss of earned remission, as well as Mr. Riley’s’ particular serious medical circumstances.
[38] Both counsel have proposed a reasonable sentence for the particular offender in this case while demonstrating compassion and leniency. As such, I have adopted counsel’s submissions with regards to the unique circumstance facing Mr. Riley. However, in sending out the appropriate message to Mr. Riley and others, I accept that a substantial jail term is required.
[39] To their credit I am advised that Maplehurst is one of the only correctional institutions equipped to accommodate Mr. Riley’s specific medical issues. Ms. Brennan was highly complementary of this institution and they are to be commended for their efforts in handling Mr. Riley’s specific medical concerns.
Disposition
[40] I have considered the relevant authorities, including the guidance provided by the cases. I take into account the circumstances of the offence and of the defendant, while recognizing and applying the applicable sentencing principles.
[41] As mentioned, Mr. Riley was formally sentenced on May 20, 2014. I imposed the following disposition. With respect to count nine, Mr. Riley is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. I impose a s.109 weapons prohibition for ten years. Mr. Riley is prohibited from driving on any road or highway in Canada for a period of 10 years.
[42] A free-standing restitution order in the amount of $1,595.00 in favour of Mr. Temple and $1000.00 for Mr. Wombell is ordered.
[43] I conclude that a fit and appropriate global sentence in this case is four years’ incarceration. Mr. Riley is to be credited for 810 days of pre-plea custody on a 1:1 basis. Therefore, the net sentence to be imposed is a period of incarceration of 21 months. Upon his release, Mr. Riley will be subject to three years of probation with terms. The sentences are concurrent with regards to all remaining counts.
“A. J. Goodman J”
A. J. Goodman J.
Dated: May 28, 2014
COURT FILE NO.:10999
DATE: 2014/05/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Mitchell Riley
reasons for sentence
A. J. Goodman J.