R. v. Sanford

Reasons for Sentence – Hill J.

MONDAY, SEPTEMBER 8, 2014

R E A S O N S F O R S E N T E N C E

Hill J. (Orally):

On May 23rd, 2014, following a trial, Jeffrey Sanford was found guilty of failing to comply with the requirements of s.252(1) of the Criminal Code, relating to the mandatory, cumulative obligations of a motor vehicle driver involved in an accident on a roadway.

It follows to be determined what a fit sentence is for the crime committed. As to the factual circumstances, they were substantially reviewed in the court’s earlier reasons, 2014 ONSC 3164. Therefore, only a brief summary is necessary at this point.

1. During the evening of August 19, 2012, the offender was driving his business partner’s F150 pickup truck on Burnhamthorpe Road in Mississauga. The vehicle had Georgia licence plates.

2. Mr. Sanford’s driver’s licence had been suspended under the Provincial Highway Traffic Act.

3. At the location of Burnhamthorpe Road and Tomken Road, the offender’s truck struck a bicycle operated by 75-year-old John McBride. The cyclist was thrown from his bicycle, landing on the ground.

4. On Burnhamthorpe Road, Mueen Hakak had been travelling behind Mr. Sanford. Hakak’s opinion was that the offender was travelling at nearly 80 kilometres per hour, not the posted 50 kilometre per hours, just prior to the accident.

5. The offender and Hakak stopped their respective vehicles at the scene. The injured cyclist was unconscious or semi-conscious. He had suffered obvious physical injuries and was having difficulty breathing.

6. Hakak called 9-1-1 for emergency assistance. He was directly at the victim’s side, trying to assist him. The offender stood some feet away. Within a minute or two, two other vehicles stopped.

7. The offender was angry and upset, he claimed that the victim was drunk and came into the path of the vehicle he was driving.

8. As Hakak rendered assistance under the telephone direction of emergency personnel, the offender walked away without telling Hakak he was leaving or why he was departing.

9. As the offender was back in his truck, and about to drive from the scene, he told another motorist that he was going to get water. He would subsequently repeat that assertion to the police and again in his trial testimony. That evidence was rejected as a fabrication designed to conceal his actual intention in leaving the accident scene.

10. The offender drove away from the scene at a high speed. Within a few minutes, the police stopped the offender’s vehicle a few seconds driving distance from an on-ramp to Highway 403.

11. Emergency personnel arrived at the accident scene within minutes. Mr. McBride ultimately succumbed to his injuries.

12. The offender left the accident scene without giving his name or address or offering assistance to the injured victim. He did so with the intent to escape civil or criminal liability for his involvement in the accident, in which he struck a cyclist with the truck he was operating. He intended to evade identification as the driver. Incidentally or secondarily, Mr. Sanford may well have thought, though legally impossible on the Boggs principle, that with his Provincial licence suspension he could also be charged criminally or incur further serious civil liability.

Mr. McBride led a very full life. Unfortunately it was far too short.

As a matter of law, the fail to remain crime does not engage the issue of causation for any injury which occurs in the relevant accident. For example, the offender does not stand convicted of criminal negligence, dangerous driving or careless driving. Fault, in terms of how the accident occurred, is not the concern of the sentencing court.

I noted during oral submissions, this legal and factual reality renders the victim impact materials, the Exhibit Number 3 narrative, and the Exhibit Number 4 eulogy, as being of limited relevance.

While it is of absolutely no benefit to the offender, Mr. McBride would undoubtedly have lost his life as a consequence of the accident for which the immediate cause remains unknown, whether or not the offender remained at the scene.

Jeffrey Sanford is currently 48 years of age. He has no prior criminal record. The offender completed high school and has steady employment. He is currently a partner in the RFN Transport Trucking Division.

Mr. Sanford exercises access with his eight-year-old daughter from a prior relationship. He provides child support and is fully involved in that child’s life.

The recognizance upon which Mr. Sanford was released prohibited him from driving a motor vehicle. Further, for this approximately two-year period, he was subject to a house arrest condition with limited exceptions.

The offender was arrested on August 19, 2012. He was released on bail on August 29th. The parties agree that this 11-day period is to be treated as the equivalent of 16 days of pre-sentence custody.

On behalf of the offender, Mr. Park submitted that the starting point for a fit sentence would be in the range of five months’ imprisonment. It was submitted that with consideration of the restrictive judicial interim release conditions, and the pre-sentence custody, that the court could well consider a sentence in the range of one day, effectively reflecting time served.

In addition, counsel placed particular emphasis upon the absence of a criminal record, and pointed to the family support and stable employment of the offender.

Ms. Beaton submitted, on behalf of the Crown, that a sentence in the range of 12 to 15 months would be appropriate, followed by probation and the maximum allowable driving prohibition.

Counsel emphasized the cowardly nature of the crime and the need for general deterrence. Counsel noted the aggravating fact that Mr. Sanford was a suspended driver at the time of the offence.

It was further noted that the offender is disentitled to the mitigation which would be warranted by the presence of genuine remorse.

The crime for which the offender stands convicted admits of a wide range of underlying circumstances. And, of course, every case has its own fact-driven uniqueness.

Frequently the s.252(1), fail to remain crime, is a companion charge to other charges in an information or an indictment. In those instances, a consecutive sentence is ordinarily imposed for the offence upon conviction. As a result, with operation of the totality principle, there can be some reduction or rounding down of the sentence imposed for this crime.

A related observation is that in the existing jurisprudence the fail to remain crime often occurs in the context of aggravated circumstances relating to the offender’s manner of driving, the role of alcohol consumption, and/or a criminal record for driving offences. It was generally agreed that none of these circumstances exist here.

The s.252(1) crime, is considered a serious offence. In R. v. Ramdass, [1982] O.J. No. 177 (C.A.) para 5, the court described the offence as not only, “contrary to the Criminal Code, but contrary to any standard of decency and humanity”.

In R. v. Gummer, 1983 5286 (ON CA), [1983] 38 C.R. (3d) 46, (Ont. C.A.), at paragraph 16, the court stated:

In our view, the Court has a duty to bring home to persons having the charge of a motor vehicle, which has been involved in an accident, that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code.

The relevant jurisprudence emphasizes the predominant role in sentencing for this crime of general deterrence, denunciation and protection of the public: R. v. Gummer, at paragraphs 15 and 16, R. v. Ramdass, at paragraphs 5 and 6, R. v. Boukchev, 2003 26654 (ON CA), [2003] O.J. No. 3944 (C.A.), at paragraph 6, R. v. Fortin, [1984] O.J. No. 158 (C.A.), at paragraph 6, and finally, R. v. McLaren, [1999] 45 M.V.R. (3d) 120 (ONCA), at paragraph 12.

While perhaps only limited assistance may be derived from review of individual fail to remain sentencing cases, the jurisprudential experience of a range of sentence does emerge of roughly three months to two years.

In the following cases a three-month sentence was imposed: R. v. Driscoll, [1990] O.J. No. 795 (C.A.), R. v. M.R.M., [1966] O.J. No. 663 (C.A.), R. v. McNeil, [1965] O.J. No. 300 (C.A.), and R. v. McConnell, [1965] O.J. No. 672 (C.A.).

Four-month consecutive sentences were imposed in the McLaren case, after a trial which involved an offender with blood alcohol readings of .204 and .191; and also in R. v. Anderson, [1997] O.J. No. 2477 (C.A.), where the accused was also convicted of impaired driving causing bodily harm.

Five-month sentences were imposed in these cases: R. v. Norton, 2014 ONSC 3611, R. v. Peebles, 2013 MBQB 234, R. v. Aman, 2012 ONCJ 654, and R. v. Schmidt, [2011] ONCJ 654.

A six-month consecutive sentence was imposed in the Gummer case following a trial in which the accused, who had two and a half times the legal blood alcohol level at the relevant time, was also convicted of dangerous driving. In R. Puyenbroek, 2007 ONCA 824, a case where alcohol was involved, a six month consecutive sentence was also imposed. A similar sentence was imposed in R. v. Ali, [1989] O.J. No. 2073 (C.A.), respecting a 22-year-old offender, also convicted of impaired driving causing death.

Nine-month consecutive sentences were imposed in these cases: R. v. Baker, 2006 19332 (ON CA), [2006] 209 C.C.C. (3d) 508 ONCA, sentencing after a trial also with a conviction involving criminal negligence causing bodily harm, and in R. v. Ramdass, which also involved a careless driving conviction.

I note that a one-year sentence was imposed in the following three cases for the s.252(1) crime: in the Fortin case, where alcohol was involved, and there was a prior criminal record; in R. v. Lafancee, 2009 ONCA 646, sentencing after a trial also for impaired operation of a motor vehicle causing death and public mischief; and in R. v. Howes, [1998] 39 M.V.R. (3d) 211 (ONCA), a case involving alcohol and a disqualified driver with a criminal record of driving offences.

An 18-month sentence was imposed in R. v. Dhesi, [2001] O.J. No. 1343 (C.A.), where the accused had twice the legal limit of blood alcohol at the relevant time, and a prior serious record for driving offences.

Finally, in R. v. Murray, [1994] O.J. No. 2392 (C.A.), a consecutive two-year sentence was imposed. The case also involved a conviction for criminal negligence causing death with the accused having a bad prior criminal record, including for impaired operation of a motor vehicle and for leaving the scene of an accident.

The aggravating factors of the present case are manifestly apparent including:

1. The offender failed in more than one of the obligations mandated by s.252(1) of the Criminal Code.

2. Mr. Sanford was a suspended driver at the time of this offence.

In the balance, and in mitigation, I note the following:

1. The offender has no prior criminal record.

2. He is steadily employed and responsible for the support of a young child.

3. The pre-sentence report is generally positive.

4. There has been compliance with judicial interim release.

5. For two years approximately, the offender has been subject to a restrictive bail condition of house arrest. With regard to consideration of this as a mitigating circumstance, see R. v. Fournel, 2014 ONCA 305, at paragraph 62, and R. v. E.B., 2013 ONCA 429, at paragraphs 8 to 10.

Mr. Sanford cannot, of course, be punished for his not guilty plea or the lack of remorse or public acceptance of responsibility for his crime. That said, he is disentitled to the leniency which would otherwise flow from the presence of a guilty plea, remorse and acceptance of responsibility.

Given that the offender committed the offence while suspended from driving, another instance of contempt for the rules of the road, some measure of specific deterrence must be reflected in the court’s disposition in addition to the dominant sentencing principles.

Given the lengthy prohibition from driving by virtue of a bail condition, only a one-year driving prohibition is necessary pursuant to s.259(2) of the Criminal Code.

This is not a case where a lengthy probation order is necessary for protection of the public or rehabilitation of the offender.

Pursuant to s.487.051(3) of the Criminal Code, a DNA authorization order is imposed.

Turning to the main sentence, a further period of custody is warranted proportionate to the gravity of the offence committed and the relevant factors already discussed.

While a sentence in the range of roughly five months to nine months would be appropriate in this case, I am satisfied that a 90-day intermittent sentence, while at the low end of an acceptable range, is appropriate for the following reasons:

1. The offender spent over two years on a restrictive bail condition, including house arrest.

2. The offender is to be credited for 16 days of pre-sentence custody.

3. The offender is subject to the additional penalties of a driving prohibition effectively three years in duration, and pursuant to s.737(3) of the Criminal Code, the court now imposes a victim surcharge of $1,000, which is five times the ordinary penalty in this case.

The intermittent sentence will be served in the following fashion: today for processing and thereafter on consecutive weekends until served; Friday 6:00 p.m. to Monday 7:00 a.m. commencing September 12, 2014.

During the service of the intermittent sentence the offender will be subject to a probation order on the mandatory, statutory terms in s.732.1(2) of the Criminal Code and the

additional condition that the offender report to the probation officer as required.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Tanya Crawford, certify that this document is a true and accurate transcription of the recording of September 16, 2014, in R. v. Sanford, in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199 404 20140908 091045 30 HILLCAS, which has been certified in Form 1.

(Date) (Tanya Crawford)

Court File No. CR-13-556

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JEFFREY SANFORD

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE HILL

on September 8, 2014, at BRAMPTON, Ontario

APPEARANCES:

E. Beaton

Counsel for the Crown

J. Park

Counsel for Jeffrey Sanford

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Reasons for Judgment 1.

Transcript Ordered:

September 10, 2014

Transcript Completed:

September 29 2014

Ordering Party Notified:

September 30, 2014