COURT FILE NO.: CR-14-90000307-0000 DATE: 20170224 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – FERNANDO CORREIA Accused
Counsel: Paul Zambonini, for the Crown David Costa, for the Accused
HEARD: December 2, 2016
B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCING
BACKGROUND
[1] Fernando Correia was charged with aggravated assault, dangerous driving and mischief to property. He was found guilty of dangerous driving by a jury and not guilty on the charges of aggravated assault and mischief to property.
[2] During the evening of August 19, 2014, Mr. Correia and Erick De Sousa were in Mr. Correia’s mini-van on Grovedale Ave. in Toronto. They got into an argument. Mr. De Sousa left the vehicle and entered the lawn of a home on Grovedale Ave. Mr. Correia drove his mini-van onto the lawn and ran over Mr. De Sousa’s leg breaking it in two places. Mr. Correia damaged a wall that ran along the driveway of the home where he drove his vehicle.
[3] Mr. De Sousa required surgery which resulted in metal plates being inserted into his leg. He first required the use of a wheelchair and then a cane to walk. He continues to have some difficulty walking.
The Effect of the Verdicts
[4] The not guilty verdicts are associated with offences requiring the subjective mens rea of intention to commit the offences. The jury’s verdicts therefore reflect a finding of not guilty of intentionally running over Mr. De Sousa and not guilty of intentionally damaging the wall.
[5] The offence of dangerous driving, on the other hand, does not require the subjective mens rea of intention. The actus reus of this offence requires finding that Mr. Correia was driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place: Criminal Code, s. 249(1)(a).”
[6] The mens rea of dangerous driving is a modified objective test which requires a finding that the accused’s driving was a “‘marked departure’ from the standard of a reasonable person”: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60.
[7] Defence counsel argues that the not guilty verdicts reached by the jury are inconsistent with the finding of guilt of dangerous driving. Although, as I conclude below, this is a legal issue within the purview of appellate review, I will say at this point that I do not agree with the defence’s position.
[8] I find it is not inconsistent for the jury to find that Mr. Correia did not mean to assault Mr. De Sousa with his vehicle and to find that he did not intend to damage the property and at the same time find that Mr. Correia drove in such a manner as to fall below the standard of driving of a reasonable person. The jury did not have to find that he drove in that manner intentionally, only that as a fact he drove in that manner.
Defence’s Application for a Judicial Stay
[9] Defence counsel took the position, on his view that the verdicts are inconsistent, that the jury must have been confused by my final instructions or had reached some unjustifiable compromise. No reasonable jury, in his view, could have arrived at those verdicts. He further argued that based on the inconsistency in the verdicts, Mr. Correia is entitled to a post-verdict stay on the basis of abuse of process. He asks the court to decline to enter a conviction and direct a stay be entered with the finding of guilt of dangerous driving.
[10] What the defence seeks runs counter to a very basic principle enunciated by the Supreme Court of Canada in R. v. Head, [1986] 2 S.C.R. 684. Protecting the sanctity of a jury verdict requires recognition that once the jury verdict has been recorded and the jury has been discharged the assessment of guilt is final, subject to an appeal. The judge sits alone on sentencing and cannot reopen the case. The judge’s only role after the finding of guilt to sentence the offender: R. v. Head, [1986] 2 S.C.R. 684.
[11] The customary rule is that following the delivery and recording of the verdict by the jury, the trial judge is functus in respect of that verdict which cannot be altered except on appeal: R. v. Burke, [2002] 2 S.C.R. 857, 2002 SCC 55; also see R. v. Henderson. The Ontario Court of Appeal dealt with another case where the accused sought to re-open the trial proceedings to stay the charges. The court found that a remedy for dissatisfaction with a verdict which would give rise to a stay application must be sought by way of appeal: R. v. Gostick (1991), 62 C.C.C. (3d) 276 (Ont. C.A.).
[12] For the foregoing reasons, I deny the defence’s application for a stay.
SENTENCING PRINCIPLES
[13] Section 718 of the Criminal Code sets down the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.
[14] 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 by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
[15] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).
[16] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31.
[17] Sentencing for crimes involving dangerous driving must recognize the paramountcy of general deterrence and denunciation: “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 punishment: R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096, at para. 33 (Ont. C.A.).”
AGGRAVATING AND MITIGATING FACTORS
[18] Section 718.2(a) of the Criminal Code provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.
Aggravating Factors
[19] A guilty verdict amounts to a finding by the jury that the Crown has proved the essential elements of an offence beyond a reasonable doubt. The aggravating facts that underlie the jury’s verdict must be proven by the Crown beyond a reasonable doubt. Reasonable doubt on these facts must be resolved in favour of the offender. This means that where the basis of the jury’s verdict is unclear the sentencing judge should make their own independent determination of the facts, consistent with the jury’s verdict: R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 9 (S.C.C.).
[20] Although dangerous driving does not require subjective mens rea, the trial judge for the purpose of sentencing is permitted to find that the offender’s conduct was intentional. The principle of proportionality enunciated in s. 718.1 of the Criminal Code and the requirement to raise or lower a sentence based on aggravating and mitigating factors under s. 718.2 of the Criminal Code, require the sentencing judge to take into consideration the offender’s mental state when he struck the victim with his vehicle: R. v. Balcha, [2004] O.J. No. 1217, at paras. 28 and 29 (Ont. C.A.).
[21] Further, the sentencing judge is bound by the implied factual implications of the jury’s verdict:
… the trial judge is entitled to consider whether the offender’s conduct was intentional (a factor relevant to his “degree of responsibility” pursuant to s. 718.1) and to conclude that it was an aggravating factor, provided that, pursuant to s. 724(3) of the Criminal Code, he was satisfied beyond a reasonable doubt of the existence of the fact.
[22] On the facts before the jury in the case before me I find there is evidence that shows Mr. Correia intentionally drove in a dangerous manner. He drove onto the lawn at the Grovedale Ave. address and ran over Mr. De Sousa’s leg. The evidence also shows to my satisfaction that after Mr. Correia left the property and drove eastward on Grovedale Ave., he did a U-turn and re-entered the lawn and once again drove over Mr. De Sousa’s leg. I find the evidence establishes beyond a reasonable doubt that Mr. Correia intentionally drove dangerously and struck Mr. De Sousa injuring him. Mr. Correia’s conduct resulted in serious and disabling injuries to Mr. De Sousa’s leg.
[23] Mr. Correia was charged with dangerous driving simpliciter under s. 249(1)(a) of the Criminal Code. Section 249(3) of the Criminal Code contains the punishment provisions and addresses the penalty for dangerous driving causing bodily harm or death. Section 243(3) provides that persons who commit the offence of dangerous driving and cause bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[24] Defence counsel argues that because Mr. Correia was not charged with dangerous driving causing bodily harm the fact of bodily harm cannot be considered on sentencing him for dangerous driving simpliciter. Defence counsel takes the view that were this permissible Mr. Correia would be sentenced for an offence more serious than the one he was charged with.
[25] In response, Crown counsel cited the Ontario Court of Appeal in R. v. Watson, 2008 ONCA 576, [2008] O.J. No. 3450 (Ont. C.A.). In that case it was alleged the accused used a firearm during a robbery. He was charged with robbery simpliciter and was sentenced on robbery with the use of a firearm.
[26] In R. v. Watson the court dealt with sections 343 and 344 of the Criminal Code. Similar to s. 249(1), which provides various modes of dangerous driving, s. 343 provides various modes of robbery. Section 344, like s. 249(3), is a punishment provision. Section 344 provides a sentence range for robbery where a firearm is involved. The court in R. v. Watson held that pursuant to the principle set down in s. 724 of the Criminal Code, the trial judge was entitled to find beyond a reasonable doubt that the accused used a firearm during the robbery: R. v. Watson, at para. 70.
[27] The Crown also cited R. v. Smithers, [1977] 1 S.C.R. 506 (S.C.C.) for the proposition that it is open to a jury, where there is no intervening factors, to make a finding that the accused caused an injury. In that case the Supreme Court of Canada dealt with causation in relation to an injury sustained by a victim that resulted in his death. The court held that where there is no intervening cause, a jury would have little difficulty from their experience and knowledge deciding the cause of the injury. This has nothing to do with determining intention: R. v. Smithers, [1977] 1 S.C.R. 506, at p. 9 (S.C.C.).
[28] It can be reasonably inferred that the jury in the case before me arrived at a finding, without the necessity to determine his intention, that Mr. Correia’s vehicle caused the injury to Mr. De Sousa’s leg. There is evidence that establishes beyond a reasonable doubt that Mr. Correia caused Mr. De Sousa’s bodily harm. Therefore, even though Mr. Correia was charged with dangerous driving simpliciter, I am entitled to consider the bodily harm as an aggravating factor on sentencing taking into account the gravity of the injury to Mr. De Sousa’s leg.
[29] Mr. Correia claims that he has abstained from alcohol for the past seven years. However, in spite of the fact he was not charged with impaired driving, there is evidence both from Mr. De Sousa speaking of their activities that evening and from the police that I find establishes beyond a reasonable doubt that he was under the influence of a substance the night he was arrested.
Mitigating Factors
[30] The mitigating factors in this case are substantial. The Pre-Sentence Report sets out the following factors:
- Mr. Correia is 56 years of age.
- He has no criminal record.
- Those interviewed describe Mr. Correia as a friendly and giving person who has tried to support and advise Mr. De Sousa during difficult times in his life.
- He has a strong work ethic and has worked for his current employer for 21 years as a skilled forklift driver. His manager has provided him a positive reference as an employee who is critical to the work of the company.
- He is at risk of losing his job if he is required to serve a custodial sentence that requires a lengthy absence from work.
- Mr. Correia has strong family ties and is a husband and breadwinner, the father of three children and a grandfather of one child all of whom live together at his residence.
- A driving prohibition would put his employment at risk since he requires a license to drive a forklift for his job.
- There appears to be no substantial substance abuse or addiction problems. He states that he has abstained from alcohol for the last seven years.
[31] Mr. Correia did not plead guilty. He is entitled to maintain his innocence. It is recognized that the absence of a guilty plea cannot be considered an aggravating factor. There is no doubt Mr. Correia’s vehicle ran over Mr. De Sousa’s leg. He caused Mr. De Sousa’s injury.
[32] The probation officer observed in the Pre-Sentence Report that Mr. Correia showed no remorse for injuring Mr. De Sousa. In an oral statement he gave during the sentencing hearing he asked for sympathy for himself for the predicament of his life but showed no regret for causing Mr. De Sousa’s injury.
THE PARTIES’ POSITIONS ON SENTENCE
The Crown
[33] The Crown cited the following cases:
- R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 (Ont. C.A.): offender drove at a high speed down a residential street and collided causing injury to passengers; convicted on seven counts of dangerous driving; pleaded guilty; appeal court overturned the suspended sentence replacing it with a nine-month sentence and replaced a two-year driving prohibition with a five-year driving prohibition.
- R. v. McMerty, [1987] O.J. No. 507 (Ont. C.A.): offender drove through a stop sign and struck a van killing four people, seriously injuring a fifth person; given a concurrent sentence on all charges of two years less a day plus two further months on another charge; appeal court upheld sentence.
- R. v. Popovics, [2005] O.J. No. 2456 (Ont. C.A.): offender sentenced to five-and-a-half year custodial sentence for dangerous driving and failing to remain; pleaded guilty to three counts of driving while disqualified and one count of breach of probation; appeal court upheld trial sentence.
- R. v. Marynissen, 2007 ONCA 821, [2007] O.J. No. 4650 (Ont. C.A.): offender sentenced for dangerous driving causing bodily harm and failing to remain; trial sentence six years for dangerous driving reduced to four years.
- R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689 (Ont. C.A.): offender charged with impaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to remain, and firearm offences; offender drove home intoxicated and hit two pedestrians; sentence for driving offences reduced from three years and six months to three years after credit for 55 days of pre-trial custody.
- R. v. Balcha, [2004] O.J. No. 1217 (Ont. C.A.): offender sentenced for dangerous driving causing bodily harm and failing to remain; no prior criminal record; sentenced to a custodial term of two years less a day and a five-year driving prohibition; the custodial sentence was upheld and the driving prohibition reduced to one year.
[34] The Crown seeks a custodial sentence of two years less a day, a five-year driving prohibition and a no contact order in relation to Mr. De Sousa. The Crown also seeks a DNA order, recognizing that such an order is not mandatory with the secondary designated offence of dangerous driving.
The Defence
[35] In the alternative to a stay of the dangerous driving charge, the defence seeks an absolute discharge. He also asks that no further conditions be imposed on the basis Mr. Correia spent two days in pre-trial custody and lost his driving privileges for just over 12 months, from the date of his arrest on August 19, 2014 until his bail condition was varied on August 24, 2015.
[36] Defence counsel cites a case from the then Ontario Provincial Court in support of an absolute discharge. In that case the offender was arrested for running a stop sign and speeding. His car sped across a lane. The judge found the offender having been caught and arrested was enough to deter him from repeating the crime. He received an absolute discharge and a one-year driving prohibition: R. v. Blackmore, [1998] O.J. No. 5983 (Ont. Prov. Ct.).
CONCLUSION ON SENTENCING
[37] I have balanced the mitigating and aggravating factors and considered the case law.
[38] An absolute discharge with no added conditions is not a fit sentence in the circumstances. Further, the facts in the case cited by defence counsel are clearly distinguishable from Mr. Correia’s situation. The sentence proposed will not address the punitive objectives of denunciation and general deterrence for a crime where with the use of a motor vehicle Mr. Correia drove onto private property and ran over Mr. De Sousa’s leg severely injuring it.
[39] I find a 12-month custodial sentence with credit of 3.5 days for Mr. Correia’s two days’ pre-trial custody is appropriate in the circumstances. I take into account the one-year driving prohibition Mr. Correia served before trial and impose a further one-year driving prohibition on sentence.
[40] I make a no contact order in relation to Mr. De Sousa whereby Mr. Correia is prohibited from having any contact with Mr. De Sousa by any means for the duration of the custodial sentence.
[41] I do not impose a DNA order.
[42] I find the sentence imposed is fit in the circumstances and addresses the objectives of denunciation and general deterrence.
SENTENCE
[43] I will now pronounce sentence. Fernando Correia, will you please stand?
[44] You have been convicted on count 1 on the indictment of dangerous driving. You stand to be sentenced for dangerous driving.
[45] A conviction will therefore be entered for count 1.
[46] You were acquitted on count 2, aggravated assault, and count 3, mischief to property.
[47] Acquittals will be entered for count 2 and count 3.
[48] I sentence you on count 1 to a total of 12 months’ imprisonment with 3.5 days’ credit for pre-trial custody served.
[49] I impose a one-year driving prohibition.
[50] I further impose a no contact order whereby you are prohibited from contacting Erick De Sousa by any means for the duration of the custodial sentence.