CITATION: R. v. Irons, 2016 ONSC 1490
COURT FILE NO.: CR15-4/061
DATE: 20160303
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ZEIKO IRONS
O. Braithwaite, for the Crown
R. Elbirt, for Zeiko Irons
HEARD: February 10, 2016
SPIES J. (orally)
REASONS FOR SENTENCE
Overview
[1] On November 2, 2015, Zeiko Irons was convicted by a jury of two counts of dangerous driving causing bodily harm to Matthew Bortolus and Chemeka Sadler contrary to s. 249(3) of the Criminal Code and two counts of failure to remain at the scene of the accident, knowing that bodily harm had been caused to Matthew Bortolus and Chemeka Sadler, contrary to s. 252(1.2) of the Criminal Code. He is now before me for sentencing.
The Facts
(a) Circumstances of the Offences
[2] On August 29, 2013, Mr. Irons was driving his white Honda southbound on Allen Road. Shortly after 9:30 p.m., he rear-ended a motorcycle being driven by Mr. Bortolus with Ms. Sadler as a passenger. The road was clean and dry and the weather was clear and dry. There were no concerns about road conditions or visibility. It was dark but Allen Road was well illuminated with streetlights. The traffic was busy but not bumper-to-bumper according to most of the witnesses.
[3] I must determine certain facts for the purpose of sentencing. It is clear that the jury did not accept Mr. Irons’ evidence that Mr. Bortolus surprised him and the motorcycle suddenly cut in front of him, giving him no time to stop. Mr. Irons admitted that at that point he was travelling at a maximum of 110 km/hr.
[4] Sergeant Bassingthwaite, who was qualified as an expert witness in collision reconstruction, testified that the collision was avoidable. He could not say what the speed of either Mr. Irons’ Honda or the motorcycle was before the collision but in his opinion both were travelling in excess of the speed limit and the speed of the two vehicles was 111 km/hr. when they came together but that did not take into account speed lost due to tires locking up, skidding, and the damage. He did say that in his opinion Mr. Irons’ Honda had to be going faster than the motorcycle although he could not say how much faster.
[5] Clearly given the evidence of Mr. Irons, he was going significantly over the speed limit of 70 km/hr. Given the opinion evidence of Sergeant Bassingthwaite it is likely that Mr. Irons was going somewhat faster than 110 km/hr.
[6] There was more to this case, however, than speeding. It is not clear what the jury found with respect to what some of the witnesses described as “extreme lane changes” being made by Mr. Irons. Mr. Irons testified that he was able to signal, check his blind spot and move from the far right lane into the centre lane and then into the left lane travelling at only 70 km/hr. It was only once he was in the left lane and had an “open lane” that he started doing between 100 and 110 km/hr. He testified that he did not see Mr. Bortolus in front of him until just before the collision because the motorcycle was in front of a car in the centre lane. When it cut in front of him the motorcycle was starting to slow down because the light at Transit Road had changed. Mr. Irons testified that he slammed on his brakes but that didn’t work and that he realized that his car was not going to stop as fast as the motorcycle. He had nowhere to go as there was a car in the centre lane to his right and the concrete median was to his left.
[7] Although the civilian witnesses who were travelling south on Allen Road just before the accident were not able to confirm that the white car they saw prior to the collision was Mr. Irons’ Honda, they all described a white car save for Frank Rovazzi, who described it as a gold Honda. He was certain, however, it was a Honda. There is no evidence to suggest that any other Honda was making extreme lane changes. The overwhelming evidence of the civilian witnesses is that Mr. Irons made at least two extreme lane changes, moving from the right lane to the centre lane and then to the left lane and that he did so at a very high speed, almost hitting the rear end of Mark Champion’s vehicle.
[8] I accept the evidence of the civilian witnesses and find that Mr. Irons did make at least two extreme lane changes in an unsafe manner without signaling. In fact, he was causing other vehicles to brake to avoid hitting him. I further accept the evidence of Mr. Champion, who is the only other witness who observed the collision, that once Mr. Irons moved into the far left lane, he was travelling considerably faster than the rest of the traffic which was estimated by the various witnesses as somewhere between 80-90 km/hr.
[9] Mr. Champion testified that there were at least four car lengths of space between the Honda and the motorcycle when the motorcycle moved into the far left lane. I accept the evidence of Mr. Champion that the motorcycle made a safe lane change. Presumably Mr. Bortolus did not appreciate the speed at which Mr. Irons was travelling in the left lane. Mr. Irons then drove directly into the back of the motorcycle.
[10] Mr. Champion testified that he did not see any brake lights, which is contrary to the evidence of Mr. Irons. There is no road evidence to suggest that brakes were applied although the mechanic, who investigated the Honda, noticed some blue tinting to the rotor, which is consistent with brakes being applied heavily. As I assume Mr. Irons had at least a split second to react to the fact that he was about to drive into the back of the motorcycle, I can only assume that he did apply the brakes but that it was too late.
[11] For these reasons I find that Mr. Irons was driving at an excessive rate of speed, well in excess of the speed limit on Allen Road, that he made at least two extreme lane changes, moving from the right lane to the left lane without signaling, and that this action caused other vehicles to brake. Mr. Irons did not foresee the risk of the motorcycle or another vehicle changing lanes from the centre lane to the left lane and his excessive speed would mean that he did not have enough time to sufficiently slow down to avoid a collision.
[12] Mr. Bortolus and Ms. Sadler were ejected from the motorcycle upon impact. They were lying in a live lane of traffic and it was only because of the quick thinking of the other drivers on Allen Road, and in particular Fernando Cordero and Robert Crummey, that they were not run over by another vehicle. Given the volume of traffic, they could have been killed.
[13] Mr. Irons knew that he had collided with the motorcycle and that the driver and passenger were now on the road. He testified that at that moment he thought that they might have died.
[14] There is a factual issue as to whether or not Mr. Irons could have stopped his vehicle immediately after impact. At trial Ms. Braithwaite’s position was that Mr. Irons’ immediate intention was to flee to avoid criminal responsibility. This was not a factual issue the jury needed to decide given the evidence of what followed. However, it may have some relevance to sentencing.
[15] Mr. Irons testified that the motorcycle was under the front of his car and that after impact, even though his foot was still on the brakes, the car did not feel like it was slowing down. He said that the motorcycle was under his car all the way over to Transit Road and all that time he could not stop the car. According to Sergeant Bassingthwaite, the motorcycle moved under the Honda up to the front axle but in his opinion it separated from the car before Transit Road. Ralph Murphy, the truck driver who stopped and spoke to Mr. Irons on Transit Road, testified that the motorcycle remained under the front of Mr. Irons’ car until Mr. Irons turned onto Transit Road, which corroborates some of Mr. Irons’ evidence.
[16] The mechanic who inspected the Honda determined that the brakes and steering on the Honda were functioning properly but unfortunately Sergeant Bassingthwaite was never asked how the presence of the motorcycle under the front of the Honda might have impacted the braking and steering abilities of the Honda.
[17] I find that Mr. Irons’ evidence raises a reasonable doubt as to whether or not, while the motorcycle was under the front of his car, he could have immediately stopped the car; he may have attempted to stop earlier but was unable to.
[18] However, there is no doubt that once the motorcycle was no longer under the Honda, Mr. Irons kept driving away from the accident along Transit Road until the Honda was no longer operable because it had lost all of its oil. Once the Honda stopped Mr. Irons got out and ran further away from the accident. Ms. Braithwaite argued that but for his car becoming inoperable Mr. Irons would have kept on driving. I am not prepared to make that finding as I prefer to consider the facts that are known.
[19] The jury clearly found that at least one of Mr. Irons’ reasons for running was that he was intending to escape criminal liability as he testified that he was afraid to go to jail. However, Mr. Irons did ultimately turn himself in about 15-20 minutes later after he calmed down and Mr. Murphy persuaded him to do so. Mr. Murphy testified that Mr. Irons was very emotional and visibly upset and very sorry for what had happened. When he turned himself in to Officer Stoker, Mr. Irons did not immediately admit responsibility. He lied to the officer and told him that he didn’t run away and that he had to “go pee in the bushes”. Captain Kuijpers, however, who escorted Mr. Irons to the police station, testified that Mr. Irons said he was there to make himself accountable and that he seemed contrite and felt badly about the accident.
(b) Impact on the complainants
[20] Mr. Bortolus is 34 years old and is not working now as a result of the injuries he suffered during the accident. He was employed in August 2013 as a high-rise plumber and had been so employed for three years. He testified at trial that he suffered a traumatic brain injury, multiple fractures to various bones in his body, and was put in an induced coma for about one month. He also had lacerations to his liver and spleen. He remained in hospital for five months.
[21] Mr. Bortolus' mother prepared two victim impact statements. She states that her son did not want to participate and so she chose to write a victim impact statement on his behalf. She also prepared one describing the impact that the injuries her son sustained have had on her and her husband.
[22] Ms. Bortolus reports that her son’s traumatic brain injury has caused changes in Mr. Bortolus’ personality and has impaired his cognitive functioning, memory, executive functioning, multi-tasking, decision-making and problem solving. He is also suffering from depression and sees a psychiatrist and a social worker for counselling on a regular basis. Her son's licence has been suspended as a result of his brain injury and so he now relies on family, friends and taxis to get to where he needs to go. Because of his physical limitations he no longer socializes the way he used to. Ms. Bortolus reports that her son experiences constant frustration, sadness, reduced enjoyment, diminished interest and depression. He also experiences chronic pain and takes pain medication on a daily basis.
[23] Ms. Bortolus detailed the therapy that her son needed after the accident. He was only able to walk again nine months afterwards and he still walks with an impaired gait and has reduced left shoulder and hand function. After her son was released from hospital he was transferred to the Toronto Rehabilitation Institute to help him learn to walk again. Unfortunately, due to complications, he came home two months later in a wheelchair needing 24-hour care. The following two years were filled with endless doctors' appointments.
[24] Ms. Bortolus’ victim impact statement sets out the impact on her and her husband. She reports that they "feel intolerable anguish and sadness when we [they] hear our [their] son repeat over and over again how much he misses his old life". She states that her mind is never at peace and she is constantly reliving the events of the last two and a half years.
[25] Ms. Bortolus was at her son's bedside every day for six months dealing with so many complications and constant confrontations with medical staff as she advocated for the best medical treatment for her son. This was stressful and exhausting and as a result she has begun to take anti-depressants and her physical health has also been compromised. She experiences little joy in her life and is often angry and impatient which has led to many conflicts, especially in her marriage. Ms. Bortolus and her husband are still involved in dealing with the many therapy and doctors' appointments for their son and Ms. Bortolus states that it is not the life they envisioned when her husband retired a year before the accident. Their lives are now filled with profound sadness and uncertainty.
[26] Ms. Sadler is 24 years old and was working as a waitress and bartender at the time of the accident. She is not working now as a result of the injuries she sustained during the collision. At trial she reported that she suffered various fractures and a brain injury that she still feels the effects of. It takes her longer to process things and she is not able to multi-task. It is harder for her to understand and she gets frustrated more easily. She was in hospital and rehabilitation for almost a month. She had significant road rash over her back, her legs, shoulder and buttocks. There was a hole in her right foot and they had to reattach her right big toe. She had multiple liver lacerations, a punctured lung and multiple soft tissue injuries.
[27] Ms. Sadler read her victim impact statement into the record. She began by stating that the "results of this accident have been horrendous. My life is screwed up." She went on to detail her physical limitations as a result of her injuries and a brain injury, which is hard to come to terms with. She struggled to complete high school and can only take two courses at once now at the post-secondary level. She has difficulty paying attention, understanding, remembering and difficulties working as fast as she needs to and keeping organized.
[28] Before the accident Ms. Sadler stated that all she did was work. Now she is not able to and she doesn't have the finances that she used to have to do things with her son, family, friends and for herself. She struggles on a day-to-day basis to make ends meet because she has to rely on a low income from the government and makes nothing compared to what she used to. Her time is taken up with a grueling rehabilitation schedule and struggling with school.
[29] Eighty percent of Ms. Sadler’s body was scarred as a result of the accident. She advised that with all of the scarring she is embarrassed to wear shorts, bathing suits or any clothing that shows her skin. She hates looking in the mirror as it constantly reminds her of a day she tries to put behind her.
[30] Because of the accident Ms. Sadler stated that she will forever be in pain and no one is able to tell her if it will go away. She suffers from headaches and pain elsewhere in her body. She has to take a lot of medication due to damage to her internal organs that has led to other complications. St. Michael's Hospital has become her second home as she has frequent follow up appointments to the present. Her physical abilities are limited from fatigue and limitations in what she can do.
[31] Finally, Ms. Sadler stated that she fears things she never did before. It has taken considerable time for her to trust her mother to drive her places and still remain calm. She concluded her statement saying that her "sense of security and safety was left on Allen Road on August 29, 2013 along with my [her] confidence".
(c) Circumstances of Mr. Irons
[32] I have a pre-sentence report (PSR) which provides some information about Mr. Irons’ background. Mr. Irons is single, 26 years old and has no dependents save for his mother who relies upon him for support. He had a very difficult childhood. Mr. Irons was born on March 1, 1989 in Kingston, Jamaica and came to Toronto as an infant with his mother that same year. His father, with whom he does not communicate, is reportedly residing in Jamaica. He has a half-brother on his father’s side with whom he has no contact and two half-brothers on his mother’s side, aged 16 and 17 years old. He advised the author of the PSR that he has had little communication with his mother and described their relationship as “not close”. He rarely sees his half-brothers although he has tried to maintain positive relationships with them. The author of the PSR was not able to communicate with Mr. Irons’ mother as she does not have a telephone.
[33] As Mr. Irons reported that he had been taken into the care of the Children’s Aid Society (CAS), the author of the PSR reviewed their records and learned that in May 1993, Mr. Irons was found wandering the streets by himself and was returned home. There were several further incidents of his being “deliberately left unsupervised” and being exposed to verbal abuse. The records also show that he was subjected to incidents of physical abuse. In June 1995, he was placed in the care of CAS. He was then in and out of the care of the CAS until April 1997 when his case was transferred to Jamaica and he was taken into the care of his maternal grandmother. Ministry records indicate that Mr. Irons had a difficult childhood while in the care of his grandmother. He came back to Canada to live with his mother when he was around 15 or 16 years old.
[34] Sharmaine Reynolds, who acted as surety for Mr. Irons, has known him for many years as he dated her daughter. He has lived in her home since about 2011. She referred to him as “nobody’s child” and that he is a “traumatized person”. She is doing everything she can to provide him with love and support as he has no one but her. She referred to herself as his “mother” and told the author of the PSR that they share a “very close” relationship. Ms. Reynolds described Mr. Irons as a “good kid” who is hard working and who has matured. She is of the opinion that Mr. Irons is “trying in every way possible to change” despite his unfortunate life circumstances and expressed her belief that he needs to be given a second chance.
[35] Mr. Irons’ aunt, who did not wish to have her name in the PSR, stated that she was “shocked to hear” that he had been involved in this matter. She described Mr. Irons as a “respectful, responsible person who goes to church on a regular basis.”
[36] Mr. Irons obtained his Ontario Secondary School Diploma while serving a 17-month sentence in Penetanguishene, Ontario. His resume indicates that he obtained his forklift certification from a Toronto-based truck and forklift school and has been employed as a forklift operator with a number of different companies since 2007. He is currently employed by Polybrite, a division of Magna International, as a permanent full-time shipper/receiver; a position he has held since March 30, 2015. His immediate supervisor described him as “a reliable/hard-working employee, who is always willing to help and when asked to work extra hours never says no.”
[37] A letter dated February 5, 2016 was filed by Sunday Oromitan, a youth leader and program coordinator for the City of Toronto at the Chalkfarm Community Centre; a priority neighbourhood where Mr. Irons started volunteering on November 17, 2015. He accumulated 138.5 hours between then and February 5, 2016. Mr. Oromitan speaks highly of Mr. Irons and he reports that it was great for the kids to have someone to look up to and learn something from. He has seen an increase in the number of kids involved since Mr. Irons has been present. Mr. Oromitan believes that Mr. Irons used this opportunity as a challenge and motivation to better himself and also make an impact on the kids' lives. Mr. Irons also made a $500 donation to the Salvation Army.
[38] Mr. Irons took the opportunity to speak to me briefly during the course of the sentencing hearing. He stated that he knows that he has caused everyone a lot of pain and that he is extremely sorry for that. He didn't mean to do this and is glad that no one died.
[39] Mr. Irons has a criminal record. In January 2011, he was found guilty of failure to comply with recognizance and given a suspended sentence and 18 months’ probation in addition to six days pre-sentence custody. On January 11, 2013, Mr. Irons was convicted of sexual assault and sexual interference and received a sentence of 17 months in jail and two years’ probation. Ministry of Community Safety and Correctional Services records show that during the supervision period of December 21, 2012 to December 20, 2014, Mr. Irons incurred the charges currently before the court. However, during that time his reporting habits were consistent and his residence was with his surety and he maintained steady employment.
[40] Mr. Irons completed a 16-week mainstream program at the Centre for Addiction and Mental Health (CAMH). The closing summary from CAMH states that “due to the lack of participation in this group, it was unclear as to what skill or information the offender learned from his attendance in this group.” It was recommended that he attend the sexual behaviors clinic follow-up group for future support but he did not wish to follow through. This program presumably relates to Mr. Irons’ convictions for sexual assault and sexual interference. He reported to the author of the PSR that substance abuse is not an area of concern.
[41] Mr. Irons' driving record shows four convictions. One conviction is relevant. In 2009, Mr. Irons was convicted for speeding; 103 km/hr. in an 80 km/hr. zone. Mr. Irons has not committed any offences while on bail.
[42] Mr. Irons advised the author of the PSR that he was ordered deported sometime in 2012 but he appealed the decision and was granted a stay of the removal order permitting him to stay in Canada with terms and conditions, which was to end in 2017. This conviction terminated that stay. As a result, if a sentence of more than six months is imposed, Mr. Irons will be deported back to Jamaica. I will come to the significance of this.
[43] Mr. Irons advised the author of the PSR that he now accepts responsibility for his involvement in the offence and that he wants to apologize to the victims. He had also prepared a letter of apology that he planned to present to the court at the time of his sentencing.
[44] Finally, I should note, as I advised counsel, that the PSR contains the opinions of Detective Van Nest, the officer in charge of this matter, as to the manner of Mr. Irons’ driving, his culpability and the impact on the complainants, which I have deleted from the PSR and ignored. I do not blame the officer for expressing these views but in my view these opinions ought not to have been included in the report.
Legal Parameters
[45] The maximum sentence for the convictions of dangerous driving causing bodily harm and for the convictions of failure to remain is ten years pursuant to s. 249(3) and s. 252 of the Criminal Code. There are no minimums. In addition, pursuant to s. 259 (2)(b) of the Criminal Code, a discretionary driving prohibition for a maximum of ten years can be imposed.
Positions of Crown and Defence
[46] Ms. Braithwaite took the position that Mr. Irons should receive a sentence of three years concurrent on each of his convictions for dangerous driving and two years concurrent on each of his convictions for failure to remain, but consecutive to the three-year sentence; for a five year sentence in total. She also requested a five-year driving prohibition in addition to whatever prohibition is imposed by the Highway Traffic Act, R.S.O. 1990, Chapter H.8 (HTA).[^1]
[47] Mr. Elbirt requested a sentence of less than six months so that Mr. Irons can avoid deportation, to be followed by a period of probation. He acknowledged that Mr. Irons might deserve "slightly more" but asked that I give Mr. Irons a break so that he not suffer the consequences of deportation. Mr. Elbirt agreed that as a matter of law the sentence for the conviction for fail to remain should be consecutive to Mr. Irons’ sentence for dangerous driving causing bodily harm.
Case Law
[48] Ms. Braithwaite provided a number of cases, most from the Court of Appeal, in support of her position. Mr. Elbirt did not provide any additional cases but did seek to distinguish some of the Crown’s cases.
[49] No case is on all fours with the case before me. Some of the cases involve impaired driving which is an aggravating factor. In some cases no one was seriously injured which is not the case here. One case involved the death of an innocent person, obviously a very aggravating fact. Although the law is clear that each case turns on its own specific facts, a careful review of some of these cases, to the extent I can find similarities to the case before me, does assist in determining what an appropriate range is for sentence for these convictions. I recognize, however, that any range is only a guide in determining a fit sentence in this case.
[50] Turning first of all to the decision from our Court of Appeal, in R. v. Van Puyenbroek, 2007 ONCA 824 at para. 59, Feldman JA speaking for the Court stated that the range of sentence for the two major driving offences of impaired driving causing bodily harm and dangerous driving causing bodily harm ran from a conditional sentence to two years less a day in prison, in circumstances comparable to that case in terms of aggravating factors. It is important to note that the offender in that case was convicted of both impaired driving causing bodily harm and dangerous driving causing bodily harm. The fact that the offender was intoxicated is a significant aggravating factor not present in this case.
[51] Justice Feldman referred to a chart attached to the Court’s decision in R. v. Goudreault (2004), 2004 CanLII 34503 (ON CA), 190 C.C.C. (3d) 19 in support of this range (at para. 59). I have reviewed that chart and all of the cases involved convictions for impaired driving causing bodily harm.
[52] In Van Puyenbroek the offender hit two pedestrians walking on the highway and then drove home. One was hurt quite badly, required brain surgery and rehabilitation. The offender had a dated conviction for drinking and driving. The trial judge accepted that the offender had expressed remorse. The offender had steady work, supported two dependents, and needed his licence to work. Significantly, Feldman JA noted at para. 62 that the three year sentence was “somewhat beyond the range historically imposed in similar cases” but she saw no error in the sentence imposed by the trial judge. However, because of the principle of totality, she reduced the sentence of three years plus six months consecutive for the fail to remain to three years after credit for pre-sentence custody in addition to the five-year driving prohibition imposed by the trial judge.
[53] Van Puyenbroek made no reference to the Court of Appeal’s earlier decision in R. v. Popovics, [2005] O.J. No. 2456 where the Court upheld an “admittedly lengthy” sentence of five and a half years; three years for dangerous driving, two years on each of three counts of driving while disqualified, concurrent but consecutive to the dangerous driving and six months consecutive for failing to remain. The offender was already subject to two lifetime driving bans. The offender did a U-turn to avoid a RIDE program and the officer gave chase. The offender eventually struck another vehicle and then fled but fortunately he did not seriously injure anyone. What distinguishes this case in particular is that the offender had approximately 77 prior convictions including a long list of serious driving offences and the trial judge had stated: “It is safe to say that, looking at his record alone, there appears to be no sanction or Court order which Mr. Popovics would obey”. This case is clearly distinguishable from the case at bar given the driving record of the offender.
[54] In R. v. Marynissen, 2007 ONCA 821, in a short endorsement released the day before the Court’s decision in Van Puyenbroek, the Court reduced a sentence for dangerous driving causing bodily injury from six years to four years. The facts of that case are not known save that the Crown sought a sentence of five years, which was the maximum sentence for that offence at the time. The Appeal Court also reduced a 16-year driving prohibition to 11 years. Given the lack of information about the offence, I did not find this decision of much assistance.
[55] In R. v. McKerness, 2007 ONCA 452, the nature of the dangerous driving resulting in a collision with another car was similar to the case at bar although the offender had consumed a considerable amount of alcohol which was clearly an aggravating factor that is not present here. The circumstances of the failure to remain were also more serious. The passenger of the offender’s vehicle and a driver of another suffered soft tissue injuries and cracked ribs. On appeal, Armstrong JA, speaking for the Court, stated:
The offences for which the appellant was convicted are extremely serious. She was speeding on Canada’s busiest highway and weaving in and out of traffic, having consumed a considerable amount of alcohol. She was fortunate that the consequences of her actions did not result in far greater personal injuries or death. She left the scene of the accident and falsely reported her vehicle as stolen. Her conduct in this respect is also reprehensible.” (at para. 44)
[56] The Court upheld the sentence imposed by the trial judge of 12 months concurrent on each of the two counts of dangerous driving causing bodily harm, the impaired driving offence and the failing to stop offence plus probation for two years and a driving prohibition of two years. No comment was made on the fact that the failing to stop sentence was not consecutive.
[57] I have considered R. v. Currie, [2002] O.J. No. 2550 (Ont. C.A.), referred to in R. v. Luangpakham, [2012] O.J. No. 1475 (S.C.), which I will come to. In Currie the offender sped onto a dock intending to frighten his passengers but he was unable to stop as his brakes failed and his car flew off the pier into a lake where one of his passengers drowned. The offender had a previous conviction for dangerous driving that was 20 years old as well as a record for other offences. The Court of Appeal agreed that a sentence of two years less a day was appropriate. This case was far more serious than the case at bar in that a death occurred.
[58] I also considered R. v. Markozashvili, 2010 ONCA 52, where in a short endorsement the Court upheld a sentence of 90 days intermittent for a first offender, convicted of two counts of dangerous driving causing bodily harm and assault with intent to resist arrest. The appellant ran two red lights at well-travelled intersections and two people suffered significant injuries. No other facts are available. This decision was referred to in R. v. Cepic, 2010 ONSC 561, as support for the sentence imposed, a decision I will come to.
[59] I also note R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181, at para. 14, where the Court of Appeal stated that failing to remain at the scene of a collision to offer assistance is “a grave failure to comport with the standards of humanity and decency” referred to in R. v. Khelawon, 2011 ONSC 51, at para. 28, a decision I will come to.
[60] The most recent case I was referred to from our Court of Appeal is R. v. Rawn, 2012 ONCA 487, which has some similarities to the case at bar. In that case the offender, driving her vehicle, and a driver of another vehicle sped down a residential street reaching speeds of up to 137 km/h; nearly three times the speed limit. The vehicles collided resulting in serious injuries to seven people; the occupants of both cars. The injuries included broken bones and concussions and one passenger’s heart stopped and she was hospitalized for two months and bedridden for a year. The offender was charged with seven counts of dangerous driving causing bodily harm. There is no suggestion the offender had consumed alcohol.
[61] The other driver was also charged and pleaded guilty and received a suspended sentence based on a joint submission and an 18 month period of probation which included three months of house arrest and a one-year driving prohibition.
[62] On appeal, Epstein JA, speaking for the Court, reaffirmed the range of sentence set out in Van Puyenbroek noting that more substantial sentences are available in certain cases such as Van Puyenbroek (at para. 443). Justice Epstein also stated a number of general principles that I must consider:
General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one … [citation omitted] Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment; [citation omitted]. (at para. 33)
The gravity of the offence is … a fundamental component of the sentence to be imposed: s. 718.1 of the Code. (at para. 40).
The offence of dangerous driving causing bodily harm has been described as among the more serious of crimes [citation omitted]. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public are injured. (at para. 41).
The gravity of the consequences of Ms. Rawn’s driving – serious personal injury – must be given considerable weight in determining a fit sentence [citation omitted] (at para. 42).
It is worth repeating – dangerous driving causing bodily harm is a serious offence. An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirement of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable. (at para. 45).
[63] Epstein JA set aside the sentence imposed by the trial judge and substituted a nine-month custodial sentence and a five-year driving prohibition. She emphasized the prohibition aspect of the sentence for the following reasons:
… as driving is at the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created. A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives. (at para. 48)
…where drivers deliberately choose to use the roads to satisfy their own thrill-seeking interests, [the court’s response] must include the loss, for an extended period of time, of the privilege of driving. (at para. 50)
[64] Ms. Braithwaite referred to one decision from the British Columbia Court of Appeal; R. v. Gill, 2010 BCCA 388. In that case the driver looked away from the road to focus on lighting a cigarette and his truck veered across four lanes and hit another vehicle head on. The resulting injuries to the driver of the other vehicle appear to have been comparable to the injuries suffered in the case at bar.
[65] The sentence imposed by the trial judge of 12 months for dangerous driving causing bodily harm, 18 months consecutive for failure to remain and a two-year driving prohibition was upheld. The 18 month sentence reflected the view of the trial judge that the offender “knew that the other motorist was very badly injured, bleeding, unconscious and in need of help, had the ability to call police or an ambulance, but instead arranged for a way to leave the scene” (at para. 28), which the trial judge found he would have done regardless of whether help had arrived or not.
[66] The other cases referred to by Ms. Braithwaite are all cases of this Court. They illustrate the wide range of sentence imposed in these cases. There are many variables in the cases related to the age of the offender, the offender’s driving record, the potential for rehabilitation and other factors. The cases that have some similarity to the case at bar; either in terms of the nature of the driving or the injuries suffered or both, are as follows:
A) R. v. Cepic, supra where Wein J. sentenced an offender who left a gas station, crossed three lanes of traffic and turned left, striking a vehicle. He panicked and fled on foot. The offender had not consumed alcohol. He had no criminal record but had one speeding ticket. Three people suffered significant physical injuries, which were causing ongoing issues. The offender pleaded guilty, was remorseful and had what Justice Wein described as an exceptionally positive PSR. He had excellent family support, planned to continue his education, and was about to become a father. Wein J. imposed a sentence for the dangerous driving causing bodily harm of six months less 98 days pre-trial custody to be served intermittently. The sentence for fail to remain was to be concurrent since the offender turned himself in and pled guilty. In addition, a driving prohibition of four years reduced by one and a half years for time the accused did not drive to date of sentencing was imposed.
B) R. v. Khelawon, Ricchetti J. sentenced an offender for a conviction of dangerous driving causing bodily harm who had been speeding down a dead-end street after consuming alcohol, to 18 months and a driving prohibition of five years. He struck a four year old child then left and went to his apartment on that street, drank more and then returned to the scene and never identified himself as the driver – he “went to great lengths to avoid responsibility”. The child spent one month in a coma and sustained permanent and catastrophic brain damage and would require some medical care for the rest of his life. The sentence imposed for fail to remain was six months less a day consecutive. In addition the offender was sentenced for impaired driving and failure to blow. This case is more serious than the case at bar in that the offender had consumed alcohol.
At para. 37, Justice Ricchetti observed that despite changing society attitudes and amendments to legislation to increase penalties to deter dangerous and impaired driving, these types of driving offences and the carnage they cause continue.
C) R. v. Peric, 2015 ONSC 4494, Allen J. sentenced an offender for a conviction of dangerous driving causing bodily harm who had been driving erratically, entered an intersection on a red light and struck two pedestrians. He then drove away and was chased by another vehicle. The offender never returned to the scene but was found two months later via his licence plate. The two pedestrians suffered serious permanent physical and emotional injuries. The offender had a dated and unrelated criminal record but a lengthy driving record for speeding infractions and unsafe driving. Allen J. sentenced the offender to 12 months for the dangerous driving and a further 12 months consecutive for the failure to remain for a total sentence of two years less a day, plus probation for two years. In addition she imposed a driving prohibition of 24 months. In her reasons, Justice Allen helpfully summarized the cases referred to her by the Crown and the Defence and many are Court of Appeal cases that were not specifically referred to me.
D) Mr. Elbirt relied on R. v. Luangpakham, supra in support of his position that it is the manner of driving that is most important, not the number of persons injured or the severity of their injuries. In that case Metivier J. sentenced an offender for dangerous driving causing bodily harm to 15 months and a one-year driving prohibition. The offender fell asleep at the wheel and hit five cyclists. When the offender woke up, he noticed his smashed windshield but he kept driving. He turned himself in within three hours but he had tried to hide his damaged van. The cyclists all suffered brain injuries; what were described as horrific life altering injuries. Justice Metivier did find that the number of victims was a factor (at para. 39). The offender had a strong employment history and community and family support. He was sentenced to nine months for the dangerous driving and 15 months less one day for failing to stop to be served consecutively. I did not find this decision helpful since there was nothing deliberate about the dangerous driving. As Justice Metivier found, the offender was not intentionally reckless and neither speed nor alcohol was a factor.
[67] The conclusion that I have come to, having reviewed the cases noted here and the others referred to by counsel and in the various sentencing decisions dealing with these offences, is that the Crown’s proposed sentence of five years in the penitentiary is unreasonably high. The sentences for dangerous driving causing bodily harm in the cases I have reviewed, for an offender with no serious driving record who had consumed no alcohol, range from 90 days intermittent to 18 months, even where the resulting injuries are serious but did not result in death. As for sentences for fail to remain, most are six months consecutive unless there are egregious circumstances.
Principles of Sentencing
[68] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.
Determination of a Fit Sentence
[69] Turning to my determination of a fit sentence, the following facts are aggravating factors in this case:
a) Mr. Irons made a deliberate and conscious decision to drive dangerously on a busy highway. This is not a case where momentary inattention caused a collision;
b) His decision to flee was also deliberate and motivated by a selfish concern that he not go to jail, no doubt because of the consequence of deportation that would result;
c) Mr. Bortolus was speeding as well but made a safe lane change and as such his actions did not contribute to the cause of the collision;
d) The injuries suffered by Mr. Bortolus and Ms. Sadler, both at a young age, have and will continue to cause them significant pain and suffering and will severely impact their ability to work and enjoy life. Watching their children suffer has also devastated their parents.
[70] As for mitigating factors, Mr. Irons cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor.
[71] In my view the following facts are mitigating factors relevant to sentence in this case:
a) Unlike many of the cases referred to me, Mr. Irons had not consumed any alcohol;
b) The dangerous driving was of a relatively brief duration;
c) Mr. Irons turned himself in to police. The fact he fled and then was persuaded to return lessens the mitigating effect of his actions but the fact remains he did turn himself in and accept responsibility for his actions;
d) I am satisfied that Mr. Irons expressed remorse at the time and that he is genuinely sorry for the injuries he inflicted on Mr. Bortolus and Ms. Sadler;
e) As Ms. Braithwaite argued, although it is unfortunate Mr. Irons has had a difficult background that does not excuse his behaviour. It is not a mitigating factor. However it is a mitigating factor that Mr. Irons is a relatively youthful offender who, despite a difficult childhood, was turning his life around.
[72] As for the immigration consequences, Ms. Braithwaite argued that Mr. Irons has already had his chance when a stay was imposed resulting from his first offence. He does not deserve another chance. Mr. Elbirt did not provide any law or make any specific submissions with respect to the fact that Mr. Irons faces deportation save for asking that I give him a break and a reduced sentence.
[73] I accept that since Mr. Irons was arrested for these offences before the stay of his removal order ended that the removal order is still in effect and that pursuant to s. 68(4) of the Immigration and Refugee Protection Act, Mr. Irons’ convictions in this matter cancel the stay and foreclose any appeal. His removal order is now automatic; with no right of appeal, and once Mr. Irons serves the sentence I impose, he will be deported back to Jamaica. I accept that this will be a significant hardship as he has lived most of his life in Canada.
[74] I dealt with this issue recently in R. v. Boyce, 2016 ONSC 1118 at paras. 24-32. I will not repeat my reasons, but in that case I concluded that as a matter of law the certainty of deportation permits only a slight reduction in the appropriate sentence if warranted.
[75] Finally, Mr. Elbirt advised me of the bail conditions Mr. Irons was under prior to his conviction. He is now on an immigration hold. Mr. Elbirt acknowledged it was not a harsh bail and he did not ask that it be a consideration in reducing Mr. Irons' sentence.
[76] In determining a fit sentence in this case, I wish to begin by saying to Mr. Bortolus and Ms. Sadler and their families that I appreciate that no sentence that I impose of whatever duration will redress the unfairness and the tragedy of what happened to them because of Mr. Irons’ deliberate actions. However, I must consider all of the law and the factors I have referred to in imposing sentence.
[77] Dealing first of all with the conviction for dangerous driving causing bodily harm, I must consider the primary goal of denunciation and general deterrence. As for specific deterrence, I expect that given the consequences in this case of deportation and based on the positive information about Mr. Irons set out in the PSR, that he is unlikely to reoffend. Despite his earlier, serious conviction, it appears that at the time of this offence Mr. Irons had finally turned his life around and was on the path to leading a productive life.
[78] In this case, given no alcohol was involved, that this is Mr. Irons’ first serious driving offence in that he has only one prior speeding offence and he has expressed remorse, the appropriate range of sentence, based on the cases I have reviewed is between six to 18 months notwithstanding the serious harm caused to the complainants. In my view in this case a fit sentence is 12 months. This collision occurred in 2013 and given the many cases that have come to this Court and the Court of Appeal the message that a custodial term will likely be imposed for this type of offence must be heard.
[79] As for the conviction for failure to remain, Ms. Braithwaite disagreed with Mr. Elbirt that this case is not one of the most egregious failure to remain cases. She argued that Mr. Irons left two people lying on Allen Road at 9 p.m. at night and that he did not come back because he was remorseful. He was persuaded to come back. When he did, he didn't say he was sorry but told the officer a lie. She argued that if the Honda had not become inoperable Mr. Irons would have kept going.
[80] Although some of the cases reflect sentences as high as 18 months, for whatever the reason, Mr. Irons did turn himself in shortly after the collision. He fled the scene because he panicked, because he feared he would be deported. The typical sentence for this offence is six months and I see no reason to deviate from that in this case. This is not one of the more egregious cases of failure to remain. In my view a fit sentence for this conviction is six months consecutive to the other sentence.
[81] Finally, with respect to the driving prohibition, I accept Ms. Braithwaite’s submission that a five year prohibition is appropriate. As Justice Epstein stated in Rawn, Mr. Irons’ driving is at the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created.
[82] After I gave my sentencing reasons orally Ms. Braithwaite asked for a discretionary DNA order which Mr. Elbirt did not object to.
Final Disposition
[83] Mr. Irons would you please stand.
[84] With respect to your two convictions of dangerous driving causing bodily harm; Counts #1 and #2, I sentence you to 12 months incarceration on each conviction concurrent to each other.
[85] With respect to the your two convictions of failure to remain; Counts #3 and #4, I sentence you to six months incarceration on each conviction, concurrent to each other but consecutive to your sentence on Counts #1 and #2.
[86] As a result, your total sentence is an 18 month reformatory sentence.
[87] Finally, there will be five-year driving prohibition in addition to whatever prohibition was imposed by the Highway Traffic Act.
[88] In addition, there will be a DNA order authorizing the taking of a DNA sample and this order shall apply to the convictions on Counts #3 and #4.
SPIES J.
Released: March 3, 2016
Edited Reasons Released March 22, 2016
[^1]: Pursuant to the HTA in force at the time of the accident. Mr. Irons’ driver’s licence would have been automatically suspended for one year.