ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11167
DATE: 2015/07/27
B E T W E E N:
HER MAJESTY THE QUEEN
S. Monaghan for the Crown
- and -
ANDREW IAN RANGER
S. Cowan and M. Cleland, for the offender
HEARD: July 3, 2015
LEACH J. (ORALLY)
[1] On March 13, 2015, following a six day trial by judge alone that took place before me in January of 2013 and September of 2014, I found the defendant Andrew Ian Ranger guilty of all counts on the indictment herein, namely:
• three counts of impaired driving causing bodily harm, contrary to s.255(2) of the Criminal Code, (“the Code”);
• three counts of dangerous driving causing bodily harm, contrary to s.249(3) of the Code; and
• three counts of driving with a blood alcohol concentration exceeding 80mg of alcohol in 100ml of blood causing bodily harm, contrary to s.255(2.1) of the Code.
[2] Circumstances underlying those findings of guilt were set out fully in my previously delivered reasons, since reported as R. v. Ranger, [2015] O.J. No. 1423 (S.C.J.). I will return expressly to some of the specifics in the course of these sentencing reasons, but emphasize that I have regard to all of them in reaching my decision in relation to sentence.
Further procedural history
[3] Following delivery of my reasons for finding Mr Ranger guilty of all counts set forth on the indictment, and before the entering of formal convictions, I invited submissions from counsel in relation to the possible application of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, which precludes multiple convictions for the same delict.
[4] In that regard, my preliminary view was that convictions should not be imposed for both impaired driving and driving with an excessive blood alcohol content, as the underlying delict was essentially the same or at least very similar.
[5] However, I also directed counsel’s attention to other authority, including R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 (C.A.), which confirmed that “the rule in Kienapple” does not preclude a conviction both for impaired driving and for driving in a manner dangerous to the public, as the former speaks to the risk posed by impairment of an accused’s ability to drive while the latter addresses the risk caused by the manner in which an accused actually drove.
[6] Counsel requested more time to consider such matters before the entry of formal convictions, and the case was adjourned to the next assignment court for the setting of a date for further submissions in that regard, as well as submissions in relation to sentencing. In the meantime, I also directed preparation of a pre-sentence report in relation to Mr Ranger, pursuant to s.721 of the Code.
[7] Following a scheduling hearing in assignment court, the matter then came back before me on July 3, 2015.
[8] At that time, having regard to the principles emphasized in R. v. Kienapple, supra, I agreed with the parties’ now shared view that formal convictions should be entered in relation to counts 1‑6 of the indictment, (in relation to impaired driving causing bodily harm and dangerous driving causing bodily harm), but that counts 7‑9, (relating to driving with excessive blood alcohol content causing bodily harm), should be stayed.
[9] After receiving further submissions from counsel on sentencing, (which included the tendering of supportive letters provided by Mr Ranger’s step-son, the owner and operator of a restaurant frequented by Mr Ranger, and one of Mr Ranger’s physicians, as well as written and oral comments from Mr Ranger himself), the matter was adjourned to today for formal imposition of sentence and delivery of my associated reasons.
Circumstances of the offence
[10] I begin with consideration of the circumstances of the offences in respect of which Mr Ranger has been convicted.
[11] As I said, those circumstances were outlined by me in considerable detail in my earlier reasons for findings of guilt, and my earlier comments in that regard notionally should be incorporated herein in their entirety.
[12] However, by way of summary and overview, I found, (consistent with a number of admissions made by Mr Ranger, and based on further evidence tendered at trial), that:
• Mr Ranger was operating his motor vehicle in an eastbound direction along Highway 2, between the cities of London and Woodstock, in the late afternoon of February 12, 2011.
• Mr Ranger was doing so intentionally after consuming alcohol earlier that day, and his ability to operate a motor vehicle was impaired. Later analysis would confirm that his blood alcohol concentration at the relevant time was 191‑230 mg in 100mL of blood, (and therefore well over twice the legal limit).
• Mr Ranger was operating his motor vehicle in a manner dangerous to the public. His conduct in that regard included numerous lane changes, “weaving” through traffic by overtaking and undertaking, ignoring or disregarding clearly visible lane designations and control markings on the highway, travelling well above the posted speed limit of 80 kph, (e.g., as much as 130‑140 kph), and crossing substantially into the westbound lane intended for oncoming traffic.
• Mr Ranger’s vehicle was then involved in a very severe “offset” head‑on collision with a westbound vehicle being operated by Joao Medeiros. Maria Pimental, (the mother‑in‑law of Mr Medeiros), was travelling in the Medeiros vehicle as a front seat passenger.
• The impact of that initial collision stopped the forward movement of the Medeiros vehicle, and caused it to rotate counter‑clockwise in a manner that caused it to then block the westbound lane of traffic. This in turn resulted in a second collision between the Medeiros vehicle and another being operated by Owen McCarthy, who had been travelling with his wife in a westbound direction behind the Medeiros vehicle.
• Mr Ranger’s conduct had caused the first collision, which in turn caused the second collision, and both collisions resulted in bodily harm to Mr Medeiros, Ms Pimental, and Mr McCarthy.
[13] I will have more to say about certain particulars of the circumstances of Mr Ranger’s offences in the course of these reasons.
[14] My current task is to determine the appropriate sentence that Mr Ranger should receive in relation to his convictions, in respect of which he apparently has not yet spent any time in custody.
Circumstances of the offender
[15] The personal circumstances of Mr Ranger were outlined in considerable detail by the s.721 pre‑sentence report noted above, the accuracy of which was accepted.
[16] That report was supplemented by the aforesaid letters of support, written comments from Mr Ranger, and Mr Ranger’s direct comments to me at the sentencing hearing.
[17] These various sources collectively include the following information:
• Mr Ranger was born in 1960, (as the middle of seven children born to his parents), and he is currently 55 years old.
• He had a dysfunctional childhood marred by domestic violence. His father was said to be a “drinker”, and abusive towards his wife and children. This led to Mr Ranger’s mother leaving her husband, with whom Mr Ranger thereafter had little contact. Mr Ranger was then raised primarily by his mother and her new partner, whom Mr Ranger regarded as a father‑figure. His mother and step‑father were said to have had “problems with alcohol” before both then “quit drinking”.
• Mr Ranger struggled with school as a result of his family situation, but finished grade 12 and then began what seems to have been a commendable and honored 18‑year career with the Canadian military. In the course of that military service, he was stationed at several different locations within Canada, (involving moves between at least four provinces). He also travelled extensively to 18 other countries, serving on a number of United Nations peacekeeping missions. As part of an Armed Forces Reduction Plan, and to accommodate the wishes of his first wife and the couple’s two sons, Mr Ranger left the military with the rank of corporal, an honorable discharge, and a medal for distinguished service. He then took up gainful long term employment in the private sector as a truck driver and delivery person; work which involved substantial physical effort, as he personally loaded and unloaded his vehicles by hand.
• Mr Ranger also has devoted himself to numerous charitable causes over the years. For example, he frequently and regularly has raised money through sponsored marathon and team running events for such causes as the purchase of trained guide dogs for the blind, and has devoted his annual Christmas “vacations” to food and gift drives for the less fortunate.
• After Mr Ranger’s first marriage came to an end in 1986, (when he was approximately 26 years old), Mr Ranger assumed responsibility for raising his two young sons. (They are now 30 and 29, but the eldest, at least, still maintains a relationship with Mr Ranger.) In 1990, Mr Ranger married his second wife, and they are still together some 25 years later, with both partners describing their union as a really “good marriage” – at least until the difficulties and challenges brought about by the collision giving rise to this proceeding. With Mr Ranger’s second marriage came a step‑son, (now an adult), with whom Mr Ranger also seems to enjoy a close relationship. (Again, that step‑son was one of those who provided the court with a compelling letter of support written on Mr Ranger’s behalf.)
• Although Mr Ranger’s mother died in 2011, (the year of the collision), he continued to enjoy a positive relationship with her up until the time of her death. He also continues to maintain contact with his surviving siblings, (although they reside in the Sudbury area).
• Mr Ranger has no criminal record.
• He has never used illicit drugs, and although alcohol has been part of his life for many years, there are no indications that it has ever impacted in any way on his familial relationships or ability to do his job, or that his alcohol consumption has been problematic in any other ways, prior to the collision that brings Mr Ranger before me now.
• In particular, all sources of information seem to agree that drinking and driving has never before formed part of Mr Ranger’s behavior. To the contrary, information provided by Mr Ranger, his wife, his step‑son, and the former owner of a restaurant where Mr Ranger was a frequent patron, all confirm that Mr Ranger was a cautious drinker who never drove after consuming alcohol. He would instead consistently call home for a ride, take a taxi, or walk to his destination. In that regard, a responsible attitude in relation to drinking and driving seems to have been fostered and reinforced by his decades of work, within the military and for many decades thereafter as a professional driver, on heavy equipment, multi‑ton trucks and large buses carrying upwards of 40 passengers.
• Apart from a memory of being at a bar and having some drinks, Mr Ranger generally has no recollection of the particular events leading up to the tragic collision that brings him before me today, (which is not surprising given the traumatic and near‑fatal injuries that he himself sustained in the collision). He feels that he “always made good decisions” in the past, when it came to drinking and driving, and he is at a loss to explain why he failed to do so on the fateful day in question.
• While the collision unquestionably has had a significant and substantial impact on Mr Ranger’s three victims, (considered in more detail below), I think it fair to say that the collision also has had a profound effect on Mr Ranger, in numerous ways.
• First, there are the very serious, lingering and/or permanent consequences of Mr Ranger’s extensive and near‑fatal physical injuries, the nature and treatment of which were described in considerable detail in a letter supplied by one of Mr Ranger’s physicians. Those injuries included a closed head injury, massive blunt trauma to the chest and abdominal areas, vertebral fractures, (cervical, thoracic and lumbar), various pelvic fractures, and additional fractures, dislocation and/or trauma to his left distal femur, left patella, quadriceps tendon, left forearm radius and ulna, and right great toe. His injuries required various forms of resuscitation, acute care, surgical intervention, (including internal fixations and immobilization), as well as rehabilitation and other forms of ongoing treatment, including regular stretching and exercise routines, as well as massage and chiropractic treatments. However, even after all this treatment, he has been left with serious and permanent injuries and limitations. He now suffers from headaches, light sensitivity and diminished cognitive, memory and concentration functions stemming from his closed head injury, along with TMJ dysfunction and pain, all of which require the regular wearing of sunglasses and a mouth‑guard at night. His thoracic and lumbar vertebral fractures have healed, with specific management, but he has been left with chronic back pain. His left forearm fractures have healed, but he continues to suffer pain and restricted range of movement in that area, resulting in significant restrictions on his ability to perform self‑care, and considerable pain and difficulty in use of his left hand and forearm to transfer positions. Those difficulties, (which are permanent and not amenable to further surgery or correction), are compounded by constant pain and significant instability in his left knee, related to disruption of the posterior cruciate ligament. Despite constant use of a brace to reduce that instability, Mr Ranger still requires a cane or walker to ambulate, and his leg swells after any sustained standing or sitting. The most recent orthopedic surgeon assessments have advised against further surgery, and although Mr Ranger continues to work at improving his strength and function through exercises, his disabilities and restrictions therefore are likely to remain with him indefinitely. In the result, the collision has transformed him from a man who was physically strong and capable throughout his life into someone who now struggles greatly with all activities of daily living, with the assistance of considerable “painkiller”, anti‑inflammatory and other medications. Because of his physical limitations, he now rarely leaves his home for any significant outside activities.
• Second, Mr Ranger has been unable to work since the collision, and having regard to his permanent physical injuries and limitations, limited education, cognitive difficulties and visual problems, it seems unlikely that he will ever be able to return to his former employment or take up any meaningful alternate employment. This in turn has caused significant financial hardship and concerns for Mr Ranger and his family, who now struggle to survive on Mr Ranger’s military pension and Mrs Ranger’s government benefits.
• Third, by all accounts, Mr Ranger has been experiencing severe guilt and depression since the collision. He consistently has expressed regret for his actions and remorse for his victims, as well as a wish that he had died in the collision. He experiences constant stress and inability to sleep, in large measure because he cannot stop “thinking about what he did”. In particular, it seems that not a day goes by without him struggling, as he puts it, to “deal with the knowledge of the pain [he has] caused the victims of the accident”, and a realization of the severe financial impact his actions will have on his wife’s financial future. His feelings of guilt and depression have necessitated considerable medication, and severely jeopardized his previously solid marriage. (In the words of Mr Ranger’s step‑son, Mr Ranger’s “guilt and the efforts required to pick up the pieces” have “torn [the] family apart”.) Along with his physical injuries and limitations, such feelings also have transformed Mr Ranger into something of a house‑bound recluse, who no longer associates with anyone outside his home. In his tearful and clearly sincere direct comments to me, he emphasized his sorrow for the pain he has caused his victims, and how much he had been hoping to face them directly, at his sentencing hearing, to let them know how very sorry he was for his conduct. He emphasized that he “was raised better”, and taught to be good to other people. He simply does not know what happened to make him cause others such suffering through his acknowledged crimes.
• In short, whatever additional sentence I may impose on Mr Ranger, his own misconduct and reaction to that misconduct already has left him with severe physical, financial and emotional consequences that are likely to be permanent.
• On a more positive note, Mr Ranger reports that he no longer consumes alcohol, and is adamant that he will “never drink again”. (This finds some support in the information provided by Mrs Ranger, who confirmed that her husband’s consumption of alcohol since the collision has been “minimal”, and that he had not consumed any alcohol whatsoever for “a number of months” at the time of her interview.) Mr Ranger is amenable to any court‑imposed conditions requiring him to abstain from any purchase, possession or consumption of alcohol. While he has never had any treatment or counselling for mental health or other issues, he is amenable to that as well.
Position of the Crown
[18] The Crown submits that, having regard to all the circumstances, an appropriate global sentence for Ranger’s crimes would be a custodial sentence in the range of 18‑24 months, to be followed by 12‑18 months of probation with terms that would include an alcohol abstention condition, and a condition requiring Mr Ranger to participate in whatever counselling assistance may be recommended by Mr Ranger’s probation officer.
[19] The Crown also seeks an ancillary order imposing a driving prohibition, pursuant to s.259(2)(b) of the Code, with a suggested duration of three years.
[20] The Crown also noted, but did not strenuously pursue, the possibility of an ancillary order pursuant to s.487.04 and s.487.051(3) of the Code, authorizing the taking of the number of samples of bodily substances from Mr Ranger that is reasonably required for DNA analysis, given that Mr Ranger’s crimes fell within the s.487.04 definition of “secondary designated offences”.
Position of the defence
[21] Defence counsel acknowledged that a custodial sentence was required, but submitted that the appropriate range was 6‑18 months. It was suggested that a custodial sentence of 12 months would be the most appropriate disposition in relation to Mr Ranger.
[22] No issue was taken with the subsequent period of probation or associated conditions suggested by the Crown.
[23] Defence counsel also did not dispute the advisability of a s.259(2) driving prohibition, but submitted that its appropriate duration should be two years rather than three.
[24] No position was taken in relation to the making of a DNA sample order, pursuant to ss.487.04 and 487.051(3) of the Code.
[25] However, defence counsel did ask that a copy of the letter from Mr Ranger’s physician be attached to his warrant of committal, pursuant to a direction of the court, so that those involved in supervising his custodial sentence will be made aware of the numerous needs and restrictions Mr Ranger will have while he is incarcerated, owing to his injuries and ongoing disabilities.
Sentencing objectives
[26] As emphasized 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 have one or more of the following objectives:
a. Denunciation of unlawful conduct;
b. Deterring the offender and others from committing offences;
c. Separation of offenders from society, where necessary;
d. Assisting in the rehabilitation of offenders;
e. Providing reparations for any harm done to victims or the community; and
f. Promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.
[27] Pursuant to s.718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[28] Pursuant to s.718.2 of the Criminal Code, I note that, amongst other considerations, the court is obliged to take into account that:
a. Sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender;
b. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
c. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
d. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[29] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Ranger, in relation to the convictions now before me.
[30] However, the authorities provide further guidance as to how these general sentencing objectives should be applied in dealing with offences in the nature of those now before me.
[31] More than 20 years ago, in R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, Justice Cory emphasized the serious nature of impaired driving offences, given their devastating effect on our society. As he noted at paragraph 16 of that decision:
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss in the country.
[32] Appellate authority therefore repeatedly has emphasized that denunciation and general deterrence take precedence in relation to such crimes, and that courts must take care not to undermine those critically important goals by inordinate focus on the reality that those who commit such crimes frequently are otherwise law‑abiding people, who often feel genuine guilt and remorse for their conduct, and require little in the way of specific deterrence for the future.
[33] For example, as Associate Chief Justice Mackinnon observed in R. v. McVeigh, [1995] O.J. No. 207 (C.A.), at paragraph 12:
It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over‑emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.
[34] Similarly, as Justice Rosenberg noted and emphasized in R. v. Biancofore, 1997 3420 (ON CA), [1997] O.J. no. 3865 (C.A.), at paragraphs 24‑27:
… The sentence for these crimes must bring home to other like‑minded persons that drinking and driving offences will not be tolerated. …
The drinking and driving offences occupy a unique position in the criminal law. Unlike most other criminal offences, such as crimes of violence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the gravity of these crimes. Some gains have been made in the recent past. There is a greater public awareness of the dangers of drinking and driving. Crime prevention initiatives such as the R.I.D.E. programmes have also contributed to the stigmatization of drinking and driving. Parliament and the legislatures have given increased powers to the police to assist in the detection of impaired drivers.
Crime prevention and public education initiatives are not, however, required to carry the entire burden. Section 718 directs that 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. As Ms Gallin pointed out, it is too easy for otherwise law‑abiding people to view what happened in this case as an “accident”, an unfortunate consequence of an error in judgment, rather than the commission of a criminal offence. Sent