COURT FILE NO.: 7315/12

DATE: 20140212

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Kelly, for the Crown

• and -

Brent Earl Garson

Bruce Willson, for the Defendant

Defendant

HEARD: December 6, 2013

REASONS FOR SENTENCE

E. J. Koke J.

Introduction

[1] On April 9, 2013, Mr. Garson was convicted of Dangerous Driving causing Bodily Harm following a trial.

[2] The charges against Mr. Garson arose out of an incident which occurred on the afternoon of July 23, 2010. On that day, he drove his vehicle against the direction of travel on a one-way residential street. At the time, the victim, Mr. Dennis Couturier was standing on the street in front of Mr. Garson’s house. After first stopping his vehicle several yards from Mr. Couturier, Mr. Garson drove at a fast pace in his direction. Although he swerved to the right, he struck Mr. Couturier. The impact sent Mr. Couturier across the hood of Mr. Garson’s vehicle and then over the windshield and roof so that he landed on the street.

[3] Mr. Garson left the scene of the collision, returning some time later after the police and ambulance had arrived at the scene.

[4] Earlier that day, Mr. Garson, while driving the same vehicle, had chased the adult son of Mr. Couturier who was riding his motorcycle on a downtown city street. While both vehicles where moving, Mr. Garson struck the back end of the motorcycle with his vehicle. The motorcycle remained operational and the son was able to drive away.

[5] Mr. Couturier suffered significant injuries that have left him unable to work in his chosen field and unable to enjoy many of his customary activities.

Legal Parameters

[6] A person convicted of dangerous driving causing bodily harm is subject to imprisonment for a term not exceeding ten years (Criminal Code, R.S.C. 1985, c. C-46, s. 249(3) [Criminal Code]).

[7] A conditional sentence of imprisonment under s. 742.1 of the Criminal Code is no longer available due to the 2007 amendment to the Code which excluded this option for a person convicted of a “serious personal injury offence”. Section 752 of the Code defines a serious personal injury offence as “an indictable offence … involving … (ii) conduct endangering or likely to endanger the life or safety of another person”.

[8] The offence of dangerous driving causing bodily harm will always amount to conduct endangering life or safety (R. v. Cepic, 2010 ONSC 561, 93 M.V.R. (5th) 129 at para. 18).

[9] A discretionary driving prohibition of up to ten years, plus any period to which the offender is sentenced to imprisonment, is available for the offence of dangerous driving causing bodily harm. (Criminal Code, s. 259(2)(b)).

[10] In addition to the above sanctions, the Criminal Code provides that a firearms prohibition order is mandatory since this is “an indictable offence in the commission of which violence against a person was used” and for which Mr. Garson “may be sentenced to imprisonment for ten years” (Criminal Code, s. 109(1)(a)). This prohibition order is to be in effect for a period of at least ten years following release from imprisonment for those items listed in s. 109(2)(a) (any firearm) and in effect for life for those items listed in s. 109(2)(b) (restricted and prohibited firearms and weapons).

[11] The offence of dangerous driving is also a secondary designated offence for which a DNA databank order may be made under s. 487.051 of the Code.

Positions of Crown and Defence

[12] Citing the Criminal Code objectives of deterrence and denunciation and emphasizing the intentional actions of Mr. Garson’s conduct, the Crown requests that the court impose a sentence that includes:

(a) a term of custody in the penitentiary;

(b) a driving prohibition of ten years;

(c) a s. 109 weapons prohibition for ten years (sub. 2(a)) and life (sub. 2(b)); and

(d) a DNA data bank order in Form 5.04.

[13] The defence agrees that general deterrence and denunciation are the most important factors in the determination of a sentence in cases of dangerous driving causing bodily harm. The defence also acknowledges that the circumstances of the offence warrant a custodial sentence but submits that the court should impose a sentence of 6 months’ imprisonment followed by a period of probation for 12 months and a driving prohibition of 5 years. The defence points out that Mr. Garson is relatively young, has demonstrated remorse for his actions and can benefit from a period of probation which will not be available if he receives a penitentiary sentence.

Case Law

[14] The Crown argues that previous judicial decisions have established a range for custodial sentences of two years less a day to approximately five years, given the factors at play in the case, and in doing so points out that the significant feature here is the driving of the vehicle in the direction of the victim.

[15] The Crown submits that the decision of the Ontario Court of Appeal in the case of R. v. Balcha (2004), 2004 396 (ON CA), 184 C.C.C. (3d) 1 [Balcha], sets out the low end of the range. In this case, the offender had no prior criminal record. Upon leaving a nightclub with his girlfriend, Mr. Balcha was attacked by three individuals. He then proceeded to follow them in his car, striking one of them with his car and then backing over him. He was sentenced to two years less a day and given a five-year driving prohibition.

[16] The Crown argues that Mr. Garson has a criminal record and that the existence of a criminal record has a significant effect on a sentence, especially when that criminal record contains driving offences, as it does in the case of Mr. Garson.

[17] The Crown submits that the case of R. v. Muldoon, 2005 BCCA 429, 20 M.V.R (5th) 175 [Muldoon], is a case which is consistent with the high end of the sentencing range. Mr. Muldoon was convicted of two counts of dangerous driving causing bodily harm, hit and run, flight from police and unlawful confinement. The sentences were made concurrent, including a sentence of three years’ custody for the initial dangerous driving causing bodily harm, which the court of Appeal said was an effective sentence of five years and three months when pre-sentence custody was calculated. The initial dangerous driving involved announcing to his passenger “I’m not going to jail”, then accelerating and driving the passenger side of his vehicle into the driver’s side of an unmarked police vehicle, injuring the driver. Later, following a police chase, Mr. Muldoon intentionally directed his vehicle into a second police vehicle, injuring the occupant.

[18] Mr. Muldoon had a lengthy criminal record, including 47 convictions which included driving offences. The court concluded that Mr. Muldoon’s moral blameworthiness was extremely elevated and would have led to a longer sentence if the Crown had not requested a sentence in the range of two to three years in addition to pre-sentence time served.

[19] The Crown also directs the court’s attention to the case of R. v. Kippax, 2010 ONSC 2529, aff’d 2011 ONCA 766, 286 O.A.C. 144 [Kippax], which it submits adopts a similar approach of escalating sentences in a dangerous driving case where a criminal record is involved.

[20] In Kippax, the accused was sentenced to three years’ imprisonment and given a ten-year driving prohibition. The court held that this was a case where the sentence should reflect the principle of specific deterrence. Mr. Kippax was in a separate vehicle from the one that directly caused death and bodily harm, but he was travelling at an excessive speed on dark, wet roads. He inappropriately used lanes of traffic to overtake vehicles. His cousin followed using the same maneuver and lost control of his vehicle, colliding with an oncoming vehicle and killing himself and injuring two occupants of the oncoming vehicle. Mr. Kippax had a dated but significant criminal record and numerous speeding convictions. Post-crash, he observed the scene pretending to be uninvolved. He showed little regard or genuine remorse for the consequences of his driving.

[21] In support of its position that the court should impose a custodial term of no more than six months the defence relies on the case of R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261 [Rawn]. In this case the Ontario Court of Appeal imposed a nine-month sentence and a five-year driving prohibition on a 40-year-old offender who was convicted of seven counts of dangerous driving causing bodily harm. Seven people were involved in the car accident and injured as a result of the accident. Ms. Rawn was a first-time offender, who showed no remorse and took no responsibility for her involvement in the accident.

[22] The defence also relies on R. v. Khelawan, 2011 ONSC 51, 7 M.V.R. (6th) 86 [Khelawan], a case in which the accused was convicted of impaired driving, refusing to provide a breath sample, dangerous driving causing bodily harm and failing to stop at the scene of an accident. The accused in this case had spent the day consuming alcohol and then drove home. He struck a child who ran out onto the street and did not stop and offer assistance. The child appeared lifeless at the scene but survived, spending one month in a coma and sustaining severe and catastrophic brain damage. The accused had no relevant criminal record, had the support of his family and was gainfully employed. The accused was sentenced to eighteen months’ imprisonment for dangerous driving causing bodily harm and a five-year driving prohibition.

Mitigating and Aggravating Factors

[23] The Crown submits that the court should consider the following as aggravating factors:

(a) the risk the accused took in driving directly toward the position of the victim and veering to the right at the last minute;

(b) the accused deliberately took a very significant and totally unnecessary risk that resulted in significant injury to the victim;

(c) the accused took this deliberate action at a time when he admitted he was angry;

(d) although the court had a reasonable doubt about whether the accused intended to strike/assault the victim, the accused had to have known that driving quickly in the direction of the victim would cause the victim to fear for his safety;

(e) the serious and possibly lifelong harm that the accused’s actions have caused the victim;

(f) the potential risk created by the accused for even greater injury to the public (including children) from the residential nature of the neighbourhood and relatively narrow street where the dangerous driving took place;

(g) the decision to travel against the flow of travel on a one-way street putting other unsuspecting drivers at risk;

(h) the deliberate failure to live up to the heavy responsibility placed on licenced drivers who choose to engage in the regulated activity of driving; and

(i) the pattern of deliberately bad driving which also put the victim’s son’s safety at risk earlier that day.

[24] The Crown also submits that the following circumstances which normally favour a restorative sentence are absent from this case:

(a) rendering assistance to the victim;

(b) entering a plea of guilty;

(c) an expression of genuine remorse; and

(d) lack of a criminal record.

[25] Mr. Garson was 27-years-old at the time he committed this offence, and the Crown submits that his relatively young age at the time is the only mitigating factor for me to consider.

[26] The defence reminds the court that Mr. Garson broke down into tears when he was testifying and submits that he is genuinely remorseful for his actions. It also points out that Mr. Garson’s criminal record is dated (prior offences occurred in 2005 and 2006), that he is in a long term relationship, is a devoted father to his young son and following his conviction for impaired driving in 2005, he has not consumed alcohol or drugs. It also points out that the author of the pre-sentence report indicates that Mr. Garson is likely to respond positively to a period of community supervision.

Circumstances of the Offender

[27] Mr. Garson is the youngest of three children. He was born on March 3, 1983 and is now 30-years-old. He was 27-years-old when he committed this offence.

[28] A review of the pre-sentence report reveals that Mr. Garson’s early years and adolescence where marred by a degree of instability and uncertainty. His father was a drug dealer and had a substance abuse problem. He was diagnosed with schizophrenia and committed suicide when Mr. Garson was two-years-old. His older brother has a criminal record.

[29] Shortly after her husband’s death, Mr. Garson’s mother became involved in another relationship and although they did not reside together, this man was always at their residence. This man had a severe alcohol abuse problem and would consume alcohol until he would pass out and eventually fall down. Mr. Garson reported to the author of the pre-sentence report that he can recall one occasion when his stepfather assaulted his mother, which resulted in the police intervening. They eventually separated as a result of his ongoing substance abuse problem and being verbally abusive.

[30] Mr. Garson’s mother supported the family as a single parent through a combination of employment and Mother’s Allowance.

[31] The Garson family lived in a trailer park until Mr. Garson was about eight-years-old. They then moved into town (Sault Ste. Marie) for another eight years and then moved to the neighbouring town of Echo Bay, where Ms. Garson was able to purchase a home.

[32] Mr. Garson attended Aweres Public School and transferred to a different school when he was nine-years-old. He had some behavioural issues and records indicate that he received a total of eight suspensions for spitting, fighting and oppositional behaviour towards the teachers. Initially he attended Central Algoma Secondary School where an educational assessment concluded that he had a learning disability and special learning accommodations were made available for him for his remaining high school years. In this high school, he received two suspensions. He transferred to a different high school when his family moved to Echo Bay. School records indicate that he did well in most of his classes there, especially in the technical classes such as automotive, scoring in the 90 percent range in his class. Here he had one suspension for using profanity.

[33] With respect to employment, Mr. Garson started work with North Shore Industrial Wheel Manufacturing in May 2003. He is reported to have been a good worker and responsible. However, in January 2004, Mr. Garson injured his back at work, and as a result thereof he has been the recipient of WSIB benefits since that time, receiving $840 per month. As a result of these injuries he is not able to sit or stand in one position for very long.

[34] At the age of 18, Mr. Garson moved out of the parental home to reside with friends. This move correlated with his use of alcohol and drugs, which resulted in several charges of Mischief, Break and Enter and Causing a Disturbance. In 2005 Mr. Garson was convicted of Impaired Driving, and in 2006, he was charged with Driving while Disqualified. He maintains that since his conviction for Impaired Driving, he has not consumed drugs or alcohol.

[35] In 2004, Mr. Garson entered into a common-law relationship with Samantha Gaudenzi. They have one child together, Mason, who was born two years ago. Mr. Garson was able to purchase a home on Grace Street in Sault Ste. Marie, and he and Ms. Gaudenzi lived together in this home for about a year until he was charged with this offence, at which time he moved in with his mother who was his surety. His mother has since moved to Alberta, and Ms. Gaudenzi’s mother is now his surety.

[36] Mr. Garson is reported by Ms. Gaudenzi to be a good father, and he babysits Mason on a daily basis while she works as a nurse. She described Mr. Garson as a very emotional person who does not have a drug or alcohol problem and has always respected her. She does not believe that he has anger issues; when he gets upset he cries and feels like he is the victim of circumstances.

[37] The author of the pre-sentence report points out that although Mr. Garson presents as a recidivist, his last conviction was in 2006 for Driving while Disqualified. It is his opinion that Mr. Garson is likely to respond positively and benefit from a community supervision order, and that he is an appropriate candidate for probation.

Sentence

[38] For the reasons set out below, I have concluded that an appropriate sentence in the circumstances of this case is for Mr. Garson to serve a custodial term of eighteen months, followed by a two-year period of probation, together with the ancillary relief referred to hereafter.

Reasons and Analysis

[39] I agree generally that the aggravating factors set out by the Crown are applicable in sentencing Mr. Garson. Clearly, Mr. Garson’s actions in setting his vehicle in motion and driving in the direction of Mr. Couturier were intentional and resulted in very serious injuries to the victim.

[40] I cannot interpret Mr. Garson’s tears while testifying as an indication that he is remorseful for his actions. I note that he left Mr. Couturier lying injured on the street and did not return until sometime later, accompanied by three friends. He presented to the court an account of the incident, which included a suggestion that Mr. Couturier had with him a set of brass knuckles, an account which was rejected by the court. His tears could just as easily be interpreted as the tears of someone who is feeling sorry for himself.

[41] In my view, this case can be distinguished from the Balcha decision which was referred to by the Crown in that the trial judge in Balcha concluded that Mr. Balcha deliberately drove his car over the victim. In this case, the court did not find that Mr. Garson deliberately struck Mr. Couturier with his vehicle, only that he deliberately drove his vehicle in the direction of Mr. Couturier and against the flow of traffic. The finding in Balcha was that Mr. Balcha intended to injure the victim, and there was no such finding in this case.

[42] In my view, the case of Muldoon can also be distinguished from this case. In Muldoon, the finding of the trial judge was that Mr. Muldoon deliberately accelerated and drove his vehicle into the driver’s side of the police vehicle, injuring its driver, after announcing to his passenger, “I’m not going to jail”. As in the Balcha case, the accused used his vehicle as a weapon of force. Mr. Muldoon also had a lengthy criminal record, including 47 convictions which included driving offences. His record was much more significant and covered a greater period of time than Mr. Garson’s record.

[43] The accused in Kippax was given a custodial sentence of three years. Like Mr. Garson, Mr. Kippax had a criminal record which was dated. Unlike Mr. Garson, Mr. Kippax had numerous recent convictions for speeding. Also, in Kippax, Mr. Kippax’s conduct contributed to a death and what has been described as devastating injuries to other individuals. Mr. Kippax was also older than Mr. Garson, being described by the court as a “mature” individual.

[44] The defence relies on the case of Rawn, a case in which the Ontario Court of Appeal imposed a nine-month sentence and a five-year driving prohibition on a 40-year-old offender who was convicted of seven counts of dangerous driving causing bodily harm. Seven people were involved in the car accident and injured as a result of the accident. I note that the offender in this case did not have a prior criminal record, and the Crown had only asked for a custodial sentence of nine months.

[45] The case before the court shares a number of elements with the case of Khelawan, a decision which was cited by the defence. In Khelawan, the accused was sentenced to eighteen months imprisonment and given a five-year driving prohibition. Like the facts in the case before the court, Mr. Khelawan’s actions resulted in serious injuries to a pedestrian, and Mr. Khelawan fled the scene. Although Mr. Khelawan did not have a prior criminal record and there was no intention to intimidate or strike a pedestrian, Mr. Khelawan was an older individual and he had made the decision to drive his vehicle after he had spent the day consuming alcohol.

[46] In arriving at my decision, I am influenced by my belief that Mr. Garson can benefit from having a probation officer in his life. Although I do not view the principle of rehabilitation as the primary objective in sentencing Mr. Garson, it remains a factor. In reviewing and considering Mr. Garson’s personal circumstances, what stands out to me is the lack of positive adult role models. As indicated, his father committed suicide when he was very young. His stepfather was an alcoholic who can hardly be considered a positive role model. His mother has now moved out west, and he was compelled to ask his girlfriend’s mother to act as his surety. At the sentencing hearing, and in response to one of my questions, counsel for Mr. Garson mentioned that Mr. Garson had met with him for the purpose of exploring and discussing with him a certain career option which he was contemplating. This suggests to me that Mr. Garson is interested in moving his life forward in a positive direction, and that he can benefit from having someone with whom he can discuss important life decisions. I note also that during the trial, Mr. Garson did not appear to have any support in the courtroom from family or friends.

[47] I am also influenced by the fact that Mr. Garson’s criminal record is dated. For a period of four to five years prior to these charges, he was not charged with any criminal offences. During this time period, he entered into a relationship with a woman who has been described as motivated and a steadying influence on him. He has become a father, and the information before the court is that he is a dedicated and conscientious parent. There is evidence that he has not consumed alcohol or drugs since he was charged with impaired driving in 2005. Also, notwithstanding the fact that his income is limited, he has managed to cobble together enough money to purchase a house. There is reason to believe therefore that Mr. Garson’s actions on July 23, 2010 should not be viewed as representative of the way in which he has chosen to live his life, and in my view, a lengthy penitentiary term might impede the positive changes which Mr. Garson has made in his life.

[48] With respect to a driving prohibition, the Crown requests a prohibition of 10 years and the defence submits that a prohibition of 5 years is appropriate. Mr. Garson will be seeking some form of employment after his release from custody, and I am concerned that a driving prohibition will limit his options in relation thereto. In the circumstances, I am imposing a driving prohibition of 5 years to commence following his release from custody.

[49] In addition to the above, I am imposing a 10-year firearms prohibition under subsection 109 (2)(a) of the Code and a lifetime prohibition under s. 109(2)(b) and I am requiring that Mr. Garson submit a DNA sample pursuant to Section 487.051 of the Code. Also, pursuant to s. 743.21 of the Code Mr. Garson is not to communicate with either Dennis John Couturier or his son Joshua Couturier while he is in custody.

[50] With respect to terms which are to govern his probation, Mr. Garson is not to communicate or associate with Dennis John Couturier or his son Joshua while he is on probation, and is to report to his probation officer whenever required or ordered to do so.

E.J. Koke (SCJ)

Date: 20140212