COURT FILE NO.: CRIMJ(P) 330/13
DATE: 2015 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Prihar, for the Crown
- and -
JANINA KRAUS
A. Forbes, for the Defence
HEARD: September 30, 2015
REASONS FOR SENTENCE
Baltman J.
Introduction
[1] Shortly after midnight on July 11, 2012, Ms. Kraus lost control of her Jeep and crashed into another vehicle on the QEW. One of the passengers in the other car sustained a shoulder injury from the impact. Ms. Kraus was charged with four offences as a result:
i. Impaired Driving Causing Bodily Harm;
ii. Operating a Motor Vehicle while “Over 80”;
iii. Dangerous Driving causing Bodily Harm;
iv. Refusal to Comply with Breath Demand.
[2] As a result of various pre-trial rulings – including the exclusion of blood samples – the Crown stayed the “over 80” and breath demand charges. On July 27, 2015, following a trial, I found Ms. Kraus guilty of the two remaining charges, namely impaired driving causing bodily harm and dangerous driving causing bodily harm. She is now before me for sentencing.
The Facts
(a) Circumstances of the Offence
[3] On the night in question Ms. Kraus was driving eastbound on the QEW, in the middle lane. For no apparent reason her car suddenly moved to the right, over the curb lane and the paved shoulder and into the soft grassy area beyond. She then overcorrected by veering sharply to the left, crossing perpendicular to the eastbound traffic. She crashed into a sedan driven by Fahima Sabir, knocking that car out of control and into the ditch on the south side of the highway. Ms. Sabir was travelling with her husband and two young children; the family was returning from a day trip to Niagara Falls.
[4] Ms. Kraus’ vehicle continued on its trajectory until it struck the median, whereupon it flipped over on its roof, leaving Ms. Kraus suspended upside down in the car.
[5] Police found numerous bottles of alcohol in the Jeep, including six empty Vex coolers and one bottle of white wine containing a small amount of alcohol. After she was extricated from her Jeep Ms. Kraus was taken to Credit Valley for treatment of minor injuries. She was released later that day.
[6] In the other vehicle Ms. Sabir’s husband – Zaheer Ul Hassan – sustained a broken clavicle. He ultimately underwent surgical repair. He claims the accident has left him with numerous physical and emotional sequelae. He believes that he will be in pain for the rest of his life and states he can never return to his former employment as a security guard. None of the other occupants of that vehicle sustained any injury.
(b) Circumstances of the Offender
[7] Ms. Kraus is 55 years old. She is single and has no children but is devoted to her dog, Monty. She has minimal contact with her family but has two good friends – a married couple – who have supported her through many challenges, including this case.
[8] Shortly before this incident Ms. Kraus lost her job as a customs consultant, and then could not afford to maintain her apartment. At the time of this accident she was looking for work and living with her friends, with much of her belongings in storage.
[9] Ms. Kraus remains unemployed today but continues to look for work as a customs agent, and recently identified a potential position with a company. She is currently on social assistance.
Positions of Crown and Defence:
[10] The Crown seeks a custodial period of between 15–18 months, and a driving prohibition of five years. The defence maintains that custody in the range of 10-15 months is sufficient, along with a probationary period and a three year driving prohibition.
Submissions and Analysis
[11] The overriding sentencing principles in drinking and driving offences are denunciation and general deterrence. Unlike other crimes, where the value of general deterrence is questionable, many of these offenders are otherwise productive members of society for whom prison terms and driving prohibitions will have a huge impact. In recent years there has also been an increase in the length of sentences imposed in such cases, largely to reflect society’s growing awareness of – and intolerance for – the often catastrophic results of this behaviour: R. v. Junkert 2010 ONCA 549, paras. 42, 46; R. v. LaForme 2014 ONCA 367, para. 10; R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782 (C.A.), paras. 25-27; R. v. McKeown 2010 ONSC 3431, paras. 23-35.
[12] There are a number of factors that make this offence serious. First, it occurred on a major highway where the offender was surrounded by other vehicles that were also travelling at high speeds. Many people were placed at risk.
[13] Second, this event involved at least two marked departures from how a reasonable person would drive: Ms. Kraus not only wandered beyond her lane, over the shoulder and into a ditch, but then instead of regaining control of her vehicle and easing back onto the roadway, she wrenched it across three lanes of oncoming traffic. It is truly fortunate, if not miraculous, that the human toll here was no greater.
[14] Third, this is not Ms. Kraus’ first drinking and driving offence. In 2005 she was convicted of driving while “over 80”. That resulted in a probationary period and a driving prohibition of 12 months. This recurrence suggests she did not learn from her previous mistake. Indeed she denies that she has a drinking problem or that she needs counselling, making her prospects for rehabilitation questionable.
[15] There are some mitigating factors. Until shortly before this incident Ms. Kraus was gainfully employed and a productive member of society. She has the support of two good friends. And she has expressed remorse for the physical injuries sustained by Mr. Ul Hassan.
[16] The case law referred to by counsel is highly fact driven. To the extent the cases cited parallel this case they support the 12-18 month range proposed by counsel. In R. v. Dhesi [2001] O.J. No. 1343 (C.A.) our Court of Appeal upheld a sentence of 18 months imprisonment and a five year driving prohibition for impaired driving where the offender, who pled guilty, had a similar prior conviction. In McKeown, supra, Lauwers J. (as he then was) imposed 18 months imprisonment and a three year driving prohibition for an impaired offender with a prior conviction for trafficking. That offender was gainfully employed and supporting his children. R. v. Khelawan 2011 ONSC 51 concerned a man without any criminal record who, while impaired, struck a child. He received an 18 month sentence for dangerous driving.
[17] Importantly, and in contrast to this matter, the offenders in all those cases caused very serious injuries to the victim: the child in Khelawan sustained permanent, catastrophic brain damage; the passenger in McKeown suffered a head injury, required plastic surgery on her face, and suffered partial severance of her right arm.
[18] In my view, the appropriate sentence in this case is 15 months and a three year driving prohibition. The period of incarceration will be followed by a probationary period of one year. The terms of that probation are that:
(i) You keep the peace and be of good behaviour;
(ii) You appear before the court when required to do so;
(iii) You will notify the court or probation officer in advance of any change of name or address;
(iv) You will promptly notify the court or probation officer of any change of employment or occupation;
(v) You will report within two working days from your release from jail, in person, to a probation officer as directed and thereafter be under the supervision of a probation officer or person authorized by the probation officer to assist in your supervision;
(vi) You will report at such times in such places as such person may require;
(vii) While I cannot require you to take treatment or counselling, it is my strong recommendation that you attend and actively participate in a rehabilitative program for alcohol abuse as may be recommended by your probation officer.
[19] I decline the Crown’s request for a DNA order; the public interest in obtaining such evidence does not outweigh Ms. Kraus’ privacy interests.
Baltman J.
Released: October 6, 2015
COURT FILE NO.: CRIMJ(P) 330/13
DATE: 2015 10 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JANINA KRAUS
REASONS FOR SENTENCE
Baltman J.
Released: October 6, 2015