R. v Irwin, 2017 ONSC 4492

R. v Irwin, 2017 ONSC 4492

COURT FILE NO.: CR-17-70000/117 DATE: 20170724 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and - MITCHELL IRWIN

Counsel: Neville Golwalla, for the Crown Leo Kinahan, for Mr. Irwin

HEARD: July 21 and 24, 2017

BEFORE: M. Forestell J.

REASONS FOR SENTENCING

Overview

1Mitchell Irwin has entered guilty pleas to three charges: dangerous driving causing death, failing to stop and failing to comply with a recognizance.

2The guilty pleas in this case were entered after discussions between the Crown and counsel for Mr. Irwin. Crown and defence counsel met with me in Chambers before the pleas were entered. The out of court discussions included a discussion of the sentence to be sought and the reasons that the Crown and defence were seeking that sentence. Counsel reached an agreement that a total of four years and fourteen days would be the appropriate length of imprisonment for these offences and this offender. Counsel did not agree on the length of the driving prohibition to be imposed. The Crown seeks a 10-year prohibition and the defence submits that a 5-year prohibition is sufficient.

3There is a joint submission on the most significant part of the sentence to be imposed. This proposal was made to the Court after careful consideration by very experienced counsel. The length of imprisonment proposed by both counsel on these guilty pleas is appropriate. The sentence takes into account the circumstances of the offences and the circumstances of Mr. Irwin. It takes into account the relevant objectives and principles of sentencing. Although it may not be strictly necessary, given the joint submission on the sentence of imprisonment, I intend to explain the reasons for the sentence of imprisonment.

Sentencing Principles

4The fundamental purposes of sentencing are to protect society, to foster respect for the law and to contribute to the maintenance of a just, peaceful and safe society. These purposes are advanced by imposing sentences that denounce unlawful conduct and the harm done to the victims or the community, that deter the offender and others from committing similar offences, that separate the offender from society where necessary, that rehabilitate the offender and that promote a sense of responsibility in the offender and an acknowledgment of the harm done.

5The fundamental principle that governs the determination of an appropriate sentence is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other principles that govern sentencing and that must be considered in cases like the one before me are: that the sentence should be similar to sentences imposed on similar offenders for similar offences; that the sentence should be increased or reduced taking into account any aggravating or mitigating circumstances; and, that where consecutive sentences are imposed, the total combined sentence should not be unduly long or harsh. When sentencing a first offender or a youthful offender the sentence should constitute the minimum intervention necessary to achieve the relevant sentencing objectives.

6In applying these principles and determining the appropriate sentence I must take into account the circumstances of the offences, the harm done to the victims and the circumstances of Mr. Irwin.

The Circumstances of the Offences

7The circumstances of the offences are set out in the agreed facts which are part of Exhibit 1 on sentencing. In summary, Mr. Irwin drove at a very excessive rate of speed (almost 40 km/hour over the speed limit) on a city street, weaving in and out of traffic. He then made a sudden lane change and accelerated through an amber light hitting the victim, James Adam Excell, who was riding his bicycle and making a left hand turn. Mr. Excell suffered severe head injuries and later succumbed to those injuries.

8Mr. Irwin did not stop at the scene. Others stopped and called police and ambulance services. Mr. Irwin drove away from the scene with a seriously damaged windshield. Mr. Irwin had to have known that the person that he hit with his car was seriously injured or dead. After driving away from the collision, Mr. Irwin stopped his car at a school where occupants from his car removed a case of beer and left it on the school grounds. He then drove 70 km to his family home. The condition of his car made it dangerous for him to drive any distance after the collision.

9Mr. Irwin turned himself into police the next day. He made a statement admitting responsibility.

10Mr. Irwin was released on bail with conditions which included that he not consume alcohol and that he not communicate with the individuals who were in the car with him that night. He breached the bail conditions by possessing alcohol and by socializing with the individuals who were named in the bail. Photographs of Mr. Irwin socializing with alcohol in his hand were posted on social media.

Victim Impact

11As part of the sentencing hearing, the Victim Impact Statements of 11 individuals were filed with the Court. Several were read into the record.

12The Victim Impact Statements that were filed and read to the Court are quite simply heartbreaking. There is no question that the family and friends of Adam Excell have been devastated by the crimes committed by Mr. Irwin.

13As revealed by the statements of his family and friends, Adam Excell was many things. He was an artist, a photographer, an environmentalist, a cyclist. He was more importantly a son, a brother and a friend to many. The statements all speak of Adam Excell’s kindness and generosity.

14The family and friends of Mr. Excell have suffered and continue to suffer not only because they have lost a loved one, but because of the violent circumstances of his death. Many of the Victim Impact Statements refer to the pain of imagining what Mr. Excell felt and thought after being fatally struck.

15The family and friends of Adam Excell will continue to suffer as a result of the offences committed by Mr. Irwin. Adam Excell’s aunt wrote of her heart aching for Adam’s parents and of the agony of knowing that there is nothing that she can do to take their pain away. The end of these proceedings, including the imposition of a sentence by me will not end their suffering. There is no sentence that I could impose that could take away their pain or compensate them for what they have lost.

Circumstances of the Offender

16Mitchell Irwin is now 21 years-old. He was 19 years-old at the time of the offences. At the time of the offences he had only a G2 license. He has no criminal record. He does have a record for speeding. He was fined for speeding in October 2013 and in December 2013. In December 2013 he was driving at 93 km per hour in a 70 km/hour zone.

17Mr. Irwin completed high school and has attended two years of college. He has not completed his college programme because of these court proceedings.

18There have been many letters filed attesting to Mr. Irwin’s good character.

19The letters indicate that Mr. Irwin has been a contributing member of his community, volunteering at his Church and coaching sports.

20Many of the letters filed speak of the remorse exhibited by Mr. Irwin. The conduct and demeanour of Mr. Irwin during the sentencing hearing was consistent with the observations of friends and family that Mr. Irwin is extremely remorseful.

21Mr. Irwin was visibly distraught when the Victim Impact Statements were read. His lawyer read a letter written by Mr. Irwin to the Court. The letter offered an apology to the family of Mr. Excell. It expressed Mr. Irwin’s remorse and his acceptance of responsibility for his actions.

22In considering Mr. Irwin’s remorse I have considered his conduct while on bail. The manner in which Mr. Irwin breached his bail causes concern with respect to his insight into the gravity of his conduct. His conduct on bail could be seen as demonstrating disdain for the justice system and the bail order. However, I am satisfied that while insight and remorse may have been inadequate initially, Mr. Irwin has gained insight and feels genuine remorse. Mr. Irwin appears to have matured and to have taken responsibility for his actions. This is demonstrated by his guilty plea and by his expression of remorse. He has shown courage in entering guilty pleas knowing that the result will be a four-year sentence of imprisonment in a federal penitentiary. The guilty pleas have saved the state the financial costs of a trial. The guilty pleas have saved the family of Adam Excell the emotional costs of a trial.

The Appropriate Sentence

23In a case of this type, the primary objectives of sentencing are denunciation and deterrence. Imprisonment in the penitentiary is the means of accomplishing these objectives. As set out by the Supreme Court of Canada in R. v Lacasse [1] the objectives of deterrence and denunciation apply in most cases, but they are particularly relevant to offences like driving offences that are very often committed by ordinarily law-abiding people. 2

24It is pointed out in many of the character letters filed on behalf of Mr. Irwin that he did not intend the consequences of his actions. I accept that. Mr. Irwin did not intend to kill anyone or even to hurt anyone. He did, however, intend to drive in a manner that put the public at risk. He intended to drive in a manner that cost Adam Excell his life. Mr. Irwin intended to leave the scene, leaving Mr. Excell injured and dying in the road. In cases like this one, the offender almost never intends the consequences. It is the consequences, however, that make the offences so serious. The majority of the Supreme Court in Lacasse observed that the objective gravity of offences involving impaired driving causing death or bodily harm is measured more by reference to the consequences of the conduct than by reference to the intention of the offender. 3 That same principle applies to dangerous driving causing death. I am required to look at the consequences of Mr. Irwin’s conduct and to give more weight to those consequences than to Mr. Irwin’s subjective intentions.

25In any sentencing the court must consider any aggravating and mitigating factors with respect to the offence and the offender.

26In this case, the extremely high rate of speed and aggressive driving on a city street, Mr. Irwin’s prior driving infractions and the actions of Mr. Irwin in stopping to allow the removal of a case of beer before driving home are clearly aggravating factors.

27Mitigating factors are Mr. Irwin’s youth, his prior good character, his family and community support, his guilty plea and his remorse.

28In imposing a first sentence of imprisonment on a youthful offender, our courts attempt to arrive at a total sentence that reflects the gravity of the offence, that achieves the objectives of denouncing the conduct and deterring others from engaging in that conduct, but at the same time is not so lengthy that the spirit of the offender and his hope of rehabilitation are crushed.

29I am satisfied that the sentence of imprisonment suggested in this case by experienced counsel is an appropriate sentence. Specific deterrence is not a significant factor in this case. I expect that Mr. Irwin has already been deterred. However, the sentence that I impose must denounce his conduct and deter others. The sentence must also take into account rehabilitation. Mr. Irwin is a young man. He has, until these offences, been a law-abiding, contributing member of society. He is capable of living a productive and law-abiding life following this sentence. A four-year and 14 day sentence of imprisonment in the penitentiary accomplishes the objectives of denunciation and deterrence while allowing for the rehabilitation of Mr. Irwin.

30I will, as I have already indicated, impose the sentence of imprisonment recommended by counsel.

31The remaining issue is the length of the driving prohibition.

32Counsel for Mr. Irwin has referred me to several cases of dangerous driving causing death that resulted in the imposition of driving prohibitions in the range he has suggested of five years. He points to the two years of bail, when Mr. Irwin was prohibited from driving, as a factor to be considered in determining the period of the driving prohibition. Counsel for the Crown has referred to several cases that support lengthier driving prohibitions.

33It is apparent from the cases that a prior history of driving infractions is a factor that supports a more significant driving prohibition. Mr. Irwin has two prior speeding infractions but his driving record is not lengthy or egregious. Another factor in this case is that Mr. Irwin did not hold a full license at the time of the offences. The fact that he drove in a dangerous manner at a time when he lacked a full license shows a lack of appreciation of the fact that driving is a privilege.

34The driving prohibition that I impose is part of Mr. Irwin’s punishment. I must consider the sentencing principles and objectives to which I have already referred. I will not repeat those principles and objectives.

35On June 13, 2015 Mr. Irwin’s dangerous conduct while driving cost a life. He abused the privilege of driving and the driving prohibition serves to denounce that conduct and to protect the public. I have taken into account the two years since the offences when Mr. Irwin was prohibited from driving by the conditions of his bail and I find that the protection of the public and the objectives of denunciation and deterrence demand the imposition of a driving prohibition of a further 6 years in addition to the period of imprisonment. This is effectively an 8-year prohibition given the 2 years during which Mr. Irwin has been prohibited from driving.

Order

36I therefore impose the following sentence:

(a) Three years’ imprisonment on Count 1: dangerous driving causing death;

(b) One year imprisonment on Count 3: failing to stop, to be served consecutively;

(c) 14 days’ imprisonment on Count 4: failing to comply with his recognizance, to be served consecutively;

(d) I order a driving prohibition for a period of 6 years in addition to the period of imprisonment and I order that the prohibition be read to Mr. Irwin and a copy provided to him;

(e) In light of Mr. Irwin’s conduct in leaving the scene to avoid detection, I find that this is an appropriate case for a DNA order and I make an order pursuant to s. 487.051(3) that Mr. Irwin provide a sample for DNA analysis;

(f) There will be an order under s. 743.21 that Mr. Irwin have no contact with any member of the family of James Adam Excell for the period of his imprisonment;

(g) There will also be a s. 109(2) weapons prohibition for 10 years.

M. Forestell J.