SUPERIOR COURT OF JUSTICE
5
HER MAJESTY THE QUEEN
10
v.
15 DANIEL PORTER
O R A L R E A S O N S F O R S E N T E N C E
20
BEFORE THE HONOURABLE JUSTICE G. DiTOMASO
On March 15, 2017, at NEWMARKET, Ontario
25
APPEARANCES:
M. Montemurro Counsel for the Provincial Crown
30 A. Kwan Counsel for Mr. Daniel Porter
1
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DiTomaso, J.
R E A S O N S F O R S E N T E N C I N G
5 DiTOMASO J. (ORALLY)
OVERVIEW
[1] After a trial by judge and jury, Mr. Porter was
10 found guilty on November 10, 2016, of failing to
remain under s. 252(1.3)(b) of the Criminal Code.
A sentence hearing was conducted on January 12,
2017, with sentence to be imposed today.
15 THE FACTS
(a) Circumstances of the Offence
[2] The circumstances of the offence based on the
20 evidence at trial, including the Agreed Statement
of Facts filed at trial as Exhibit 1 and the
agreed evidence of Detective Steve Higho filed at
trial as Exhibit 27, can be summarized as follows:
25 The Collision
- The deceased, 71 year old Kunning Yu, lived at an
apartment complex located at 7373 Kennedy Road,
30 Markham, Ontario, with his wife. 7373 Kennedy
Road is at the southeast corner of Dennison Street
and Kennedy Road. On Saturday, January 12, 2013,
Mr. Yu left his home at approximately 7 p.m. to
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DiTomaso, J.
attend a plaza across the street to pick up gifts
for a trip he and his wife were planning to take
to China the next morning. Surveillance video
footage obtained from the Dennison Plaza
5 established that after leaving his home, Mr. Yu
walked across the Kennedy Road northbound lanes,
and at approximately 7:11 p.m. he was standing on
a median dividing the north and southbound lanes
when he stepped off the curb and into the path of
10 a southbound vehicle.
- The vehicle was travelling in the southbound
passing lane on Kennedy Road, south of Dennison
Street, and north of Gorvette Road, Markham. At
15 the time he was struck, Mr. Yu was opposite
Dennison Plaza located on the west side of Kennedy
Road. He was not in a crosswalk or at a
controlled intersection. Mr. Yu was wearing an
orange baseball hat, a light blue long sleeved
20 shirt, and dark pants, as is evident in
photographs taken at the scene. The video
surveillance footage appears to show that there
was a brief pre-collision braking, but not
post-collision braking. The vehicle, a light
25 coloured sedan, did not slow or stop following the
impact with Mr. Yu. Civilian witness Tak Shun Miu
described that the vehicle was travelling fast,
and estimated the speed at approximately 80
kilometres per hour.
30
- It was nighttime. The roads were clear, flat and
level. Kennedy Road was damp but not wet.
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Driving conditions were good and the area, a
heavily populated urban area, was well lit.
- A reconstruction report prepared by PC Veenstra
5 determined that the vehicle was travelling at
approximately 59-70 kilometres per hour at the
time of the impact. The posted speed limit was 60
kilometres per hour. PC Veenstra concluded that
the vehicle's front left side front bumper struck
10 Mr. Yu on the legs. The contact by the front
bumper caused compound fractures to Mr. Yu's tibia
and fibula on both legs (bumper fractures).
Because Mr. Yu was struck below his centre of
mass, he was scooped up onto the hood of the
15 vehicle and slammed into the windshield. After
contacting the windshield, Mr. Yu was projected
airborne and accelerated forward by the southbound
vehicle. Mr. Yu travelled in the air before he
struck the ground and tumbled onto the roadway,
20 approximately 30 metres south of the area where he
was struck.
- Mr. Yu suffered catastrophic injuries including
multiple palpable comminuted fractures of the
25 skull, lacerations of the aorta in two places,
tearing of the lungs and bronchi in two places,
broken ribs, a broken clavicle, compound fractures
of the tibia and fibula of the left and right
legs, a fracture to the right humerus, a fracture
30 to the hyoid bone, multiple cervical vertebral
fractures, and severe damage to the brain and
brain stem. Death would have been immediate and
4
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occurred as a result of the multiple blunt force
traumatic injuries.
- Surveillance systems of the nearby plaza recorded
5 the accident. A video of the collision appeared
to show activation of the rear brake lights of the
vehicle that struck Mr. Yu. However, the vehicle
failed to stop or remain at the scene of the
collision. Two vehicles, a truck driven by
10 Christopher McGinn, and a Rav4 SUV, driven by
Terry Phillips, stopped to assist and protect the
body of Mr. Yu after they saw him lying on the
roadway. They called 911. They concluded that
Mr. Yu was obviously dead. Emergency vehicles,
15 fire, ambulance and police arrived a short time
later and closed Kennedy Road. Mr. Yu was
declared deceased by the coroner at the scene.
Neither Christopher McGinn nor Terry Phillips or
his passengers saw the impact.
20
- Leon Tak-Shun was turning from the plaza onto
Kennedy Road at the time of the accident. A
vehicle was in front of his vehicle, also turning
onto Kennedy Road. He described hearing a boom,
25 and seeing something flying through the air. Once
the vehicle in front of him turned onto Kennedy
Road and he moved forward, he realized that a
person had been hit. He advised that the car that
hit the person did not stop at all.
30
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Agincourt Chrysler and Robbie Stern
- In January 2013, Robbie Stern was the body shop
manager for Agincourt Chrysler, located on Kennedy
5 Road in Scarborough. When Stern arrived at work
on Monday, January 14, 2013, at 9:00 a.m., he
found a Volvo S40 in the parking lot and an
envelope with keys for the vehicle and a note to
call or text Daniel Porter. Stern had seen Daniel
10 Porter driving the vehicle in the past. The
windshield had several circular impact marks and a
hole in the windshield on the driver's side. The
A-pillar had two large dents. The driver's side
headlight and signal light were broken. There was
15 damage to the front fender and front bumper. The
vehicle's hood on the driver's side was dented and
there was damage to the windshield wiper
windshield mechanism. Stern drove the vehicle
into the dealership and there was glass inside the
20 vehicle, and it was wet where water had come into
the vehicle through the hole in the windshield.
Stern's impression was that the windshield and
A-pillar looked like they had been hit by a bat.
25 9. Stern spoke with Daniel Porter that same morning
on the phone. He knew Porter from prior dealings
at the dealership. Porter told Stern that the car
had been vandalized downtown on the weekend.
Stern told Porter that the damage to the vehicle
30 exceeded its value and they discussed the bare
necessities required to get the car roadworthy.
Porter instructed Stern to repair the windshield,
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DiTomaso, J.
A-pillar, wiper arm and headlight, but not the
bumper or the hood. Porter came into the
dealership the next day, Tuesday, January 15,
2013, with a cash deposit and, at that time,
5 requested Stern to also repair the hood and
possibly the bumper.
- On Wednesday, January 16, 2013, between 9:00 a.m.
and 11:00 a.m., Daniel Porter contacted Robbie
10 Stern and told him to stop the work on the
vehicle. Stern said they were half-way through
and asked why they should stop. Porter replied,
"please stop", and said he would pay for the work
already performed. Stern mentioned that he had
15 ordered parts. Porter replied that he would pay
for whatever they had done and the parts as well.
Stern asked Porter if he was just going to scrap
the car. Porter said he was not sure. At this
point, the windshield had been removed and the
20 A-pillar had been repaired, but not painted.
- At the point in time when Porter told Stern to
stop work on the vehicle (the morning of January
16, 2013) Robbie Stern was aware that the police
25 were looking for a vehicle related to a hit and
run that had occurred on the weekend, but had not
yet made the connection to the Volvo in his body
shop. However, during the course of the day on
January 16, 2013, Ramona, the office
30 administrator, was asking questions about the
vehicle. She was looking on Google regarding the
type of vehicle involved in the hit and run.
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Initially, Stern believed that the media release
said the police were looking for a Corolla. Later
on that afternoon the administrator kept on
looking and she found a bulletin that came out
5 that changed the vehicle type to a late model, '01
to '04 S40 (Volvo), which was the same vehicle
that was at the dealership. When he came back
from lunch, Ramona told him that "this" was the
vehicle. She had her computer open and showed
10 Stern the picture.
- That afternoon, Stern received a call from Daniel
Porter's sister, Tracy Porter. She told him that
they were going to bring the rental back and that
15 Daniel would be turning himself in because he was
involved in the hit and run. Stern was upset at
Daniel Porter for having involved his dealership.
That evening, Porter's mother and sister, Sarah,
came into the dealership. Stern asked them if the
20 police knew where the vehicle was located or if
they knew what was happening with the car. They
said that they were not allowed to speak about it.
Stern told them that he needed to know if he
needed to make "that phone call" (to the police).
25 They said they would get in touch with the lawyer.
Stern said he would be leaving the dealership at
6:00 p.m. and he needed to know before he got home
whether they had contacted the police. He told
them that he intended to contact the police and
30 tell them where the vehicle was by 7:00 p.m. if he
did not hear anything further. He asked them to
have the lawyer contact him. Stern subsequently
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received a call from Ms. Schmid, who identified
herself as Mr. Porter's lawyer. She confirmed
that the police were aware of the location of the
vehicle and they would come with a warrant to
5 remove it.
- Daniel Porter had attended the office of Elme
Schmid early on January 16, 2013. After
Mr. Porter met with Ms. Schmid, on January 16,
10 2013, at approximately noon, Tracy Porter and
Karen Porter attended Elme Schmid's office. They
learned that Mr. Porter was involved in a fatal
motor vehicle accident. Mr. Porter was not at the
office. When they left the lawyer's office, they
15 advised Sarah Porter that there had been an
accident with her vehicle involving a pedestrian
who had passed away. Tracy Porter acknowledged
that she subsequently contacted Robbie Stern to
make arrangements to return the rental car.
20
- Sarah Porter, Daniel Porter's sister, was the
owner of the Volvo, licence plate number BNYP 641.
She said that she believed that the vehicle was
parked at a parking lot adjacent to her home,
25 located at Unit 98-39 Wayside Drive, Toronto,
Ontario. She advised that only her mother and
brother had access to the vehicle and that in
January 2013, Daniel Porter predominantly drove
the Volvo.
30
9
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DiTomaso, J.
- She stated that her brother, Daniel Porter, had
retrieved the keys for the vehicle on Friday,
January 11, 2013, and did not return them that
night. She next saw him on January 12, 2013, at
5 approximately 7:30 p.m. running from the area
where she believed the car was parked, toward her.
Sarah was in the driveway of her home and was on
her way with a friend, Christa Colbourne, to a
club in downtown Toronto. Mr. Porter asked her
10 for a ride downtown. He said he was going to a
stag party for a friend. He told her that the
Volvo would not start. He said nothing about an
accident having occurred during the trip downtown.
She dropped him off at approximately 8:00 p.m.
15 Sarah Porter advised that she was not aware of any
damage to her Volvo prior to January 12, 2013.
She did not see the vehicle on January 12, 2013.
She was not informed of any damage having occurred
to her vehicle between January 11 and January 16,
20 2013.
- Daniel Porter's mother, Karen Porter, also
testified that she saw Daniel Porter coming from
the parking lot on January 12 "maybe around - in
25 between 7:30 - 7:00" and that he asked if she
could drive him somewhere. Karen told him she
could not because she was babysitting. Daniel did
not say anything to her about the car being
vandalized.
30
- Friends of Mr. Porter testified that they attended
the stag party. They confirmed that Mr. Porter
10
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attended, was repeatedly borrowing and using their
cell phones and sat and talked and drank with
others in attendance.
5 18. Daniel Porter testified at trial and confirmed
that he was in the accident which resulted in the
death of Kunning Yu. He denied any requisite
knowledge of the accident at the time but did
admit that he later lied to his sister, mother and
10 Mr. Stern about the damaged car. He also admitted
to further damaging the car after returning from
the stag party and to arranging for its immediate
repair, despite not having the funds to do so. He
denied deliberately trying to avoid liability for
15 the accident. He claimed he only realized he had
been involved with a hit and run accident days
afterwards. At a time when the news was flooded
with bulletins about this hit and run accident, he
discussed his situation with his friend, Daniel
20 Hill, and his best friend, Jimmy Baxter, before
going to seek the advice of a lawyer, Ms. Schmid.
He testified at trial that he went to voluntarily
turn himself in to police with Ms. Schmid, but
then applied pre-trial to exclude that evidence,
25 claiming in an affidavit that Ms. Schmid had acted
without his consent in disclosing his identity to
the police as the driver. His application was
unsuccessful and was dismissed.
30 [3] There was compelling evidence at trial that Daniel
Porter was driving a Volvo S40 (owned by his
sister, Sarah Porter) that struck and killed 71
11
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year old Kunning Yu as he crossed Kennedy Road on
the evening of January 12, 2013. There was also
compelling evidence that following the accident
Daniel Porter tried to conceal his involvement in
5 the accident by:
• failing to render any assistance to Mr. Yu,
who, after flying onto the hood and windshield
of Mr. Porter's vehicle was thrown onto the
10 street;
• immediately fleeing the scene, without coming
to a stop;
15 • failing to report the accident;
• causing additional damage to the Volvo with a
bat in order to conceal his involvement in the
accident; and,
20
• by lying to Service Manager, Robbie Stern, of
Agincourt Dodge Chrysler, about what had
happened to the vehicle, and destroying
evidence by having the damage to the Volvo
25 repaired.
(b) Circumstances of the Offender
[4] Daniel Porter was 26 years of age at the time of
30 the accident. He is now 30 years of age. He is
not married, nor does he have any children. He
lived at his parents's home along with his sister
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and nephew. He was not gainfully employed in the
traditional sense. Rather, he was a professional
gambler who earned his living by playing online
poker and other online games.
5
[5] Mr. Porter was close to his family. He was also a
social person and socialized with a number of
friends. He was passionate about sports and
played regularly in a ball hockey league.
10
[6] After the death of Mr. Yu, he was arrested and
charged on January 16, 2013, and released on
January 17, 2013, on a surety recognizance. He
served two days of pre-trial custody.
15
[7] After Mr. Porter was convicted on November the
10th, 2016, was he immediately taken into custody.
Crown counsel and Defence counsel agree that as of
March 15, 2017, Mr. Porter would have served 128
20 real days in pre-sentence custody. At an enhanced
rate of 1.5 to 1, Mr. Porter's total pre-sentence
credit is an agreed upon 192 days. Mr. Porter is
a first offender.
25 (c) Impact on the Victims
Victim Impact Statements
[8] The violent death of Mr. Yu in this case makes the
30 victim impact significant to him and to his
grieving family. Marked as Exhibit 1 on the
sentencing hearing was a Crown brief containing
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Victim Impact Statements. Collectively, these
statements are filled with profound sadness,
sorrow and pain. The Victim Impact Statements
come from Mr. Yu's wife, Qiyue Chen and two
5 daughters, Maggie Yu and Rita Yu. They all suffer
from pain and emptiness in losing their loved one.
Individually, they speak of their lives being
devastated by personal loss and grief as a result
of Mr. Yu's death.
10
[9] This Court's review of the Victim Impact
Statements provides some painful insight into the
heartfelt loss suffered by the family of Mr. Yu.
15 LEGAL PARAMETERS
[10] Failing to remain in general has been treated as
an extremely serious crime requiring emphasis of
general deterrence. Our Court of Appeal has
20 routinely cited the cases of R. v. Gummer and R.
v. Ramdass, [1982] O.J. No. 177, for the
proposition that failing to remain is a grave and
serious crime.
25 [11] In R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181 (C.A.),
Martin, J.A. held, at paragraph 14 and 16:
"In our view, the failure of the respondent
to stop his automobile when, as the trial
30 judge found, he was aware that he had struck
someone was perhaps the more serious of the
two offences which the respondent committed.
14
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In failing to stop as required, the
respondent exhibited a grave failure to
comport with the standards of humanity and
decency.
5
In our view, the court has a duty to bring
home the persons having the charge of a motor
vehicle which has been involved in an
accident that the courts of this country will
10 not countenance the failure to remain at the
scene and discharge the duties required by
the Criminal Code."
[12] It is worth noting that the maximum sentence for
15 section 252(1.3) is life imprisonment. Prior to
1999, the maximum sentence was five years for
failing to stop, regardless of circumstances. In
1999, Parliament changed the sentence to a
potential life sentence for failing to remain when
20 it is shown that death occurred or where the
accused was reckless as to whether death occurred.
This amendment to the Criminal Code clearly
signals a message from Parliament that this
offence is extremely serious, the gravity of which
25 warrants onerous sanction. (See R. v. Yuzicapi,
[2011] SKCA 34 at para. 29)
30
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POSITIONS OF THE CROWN AND THE DEFENCE
Position of the Crown
5 [13] The Crown submits that the range of sentence for
this offence is mid to high reformatory
incarceration. Given the aggravating factors in
this case, the Crown submits that Mr. Porter
should be sentenced to a period of custody in the
10 range of two years less a day minus the 192 days
of pre-sentence custody. Any global sentence
imposed should consider the bail which Mr. Porter
was on for a period of three years and ten months
as a mitigating factor but need not stipulate a
15 particular amount of credit in doing so. The
Crown submits that there are numerous aggravating
factors in this case which warrant a sentence that
emphasizes general deterrence. By way of
ancillary orders, the Crown seeks a DNA order,
20 pursuant to s. 487.051 and a driving prohibition
under s. 259(2) of the Criminal Code for a period
of 5 to 10 years.
25 [14] In addition, any custodial disposition should be
followed by a period of probation of at least 2
years with conditions.
Position of the Defence
30
[15] The Defence submits that a custodial sentence in
reformatory in the range of 12 to 18 months is
16
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DiTomaso, J.
appropriate in this case, less enhanced credit at
1.5 to 1 basis for a total credit of 192 days.
Such credit has been agreed to by the Crown.
Further, the Defence submits that the principles
5 set out in R. v. Downes,[2000] O.J. No. 555
applies and seeks a further credit between 4 to 6
months.
[16] As for ancillary orders, it is submitted that the
10 appropriate driving prohibition order should be in
the range of one to three years. The Defence
disagrees that there ought to be a DNA order. As
for probation, the Defence also submits that there
be no probation but if probation is ordered, the
15 appropriate range would be between one and two
years.
REVIEW OF RELEVANT CASELAW
20 [17] Both the Crown and Defence submitted case briefs.
I have reviewed all of the authorities submitted
by both sides. Neither side was able to provide
me with cases that were on all fours with the case
before us. That is understandable. Each side
25 presented cases which were illustrative of legal
principles involved in this kind of offence.
Sentencing depends on the specific facts of each
and every case. To a very large measure,
sentencing is tailor made to the offence and to
30 the offender.
17
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[18] The Defence relied upon the following cases:
R. v. Khelawon, [2011] O.J. No. 10 (S.C.J.)
5 R. v. Lapensee, 2009 ONCA 646, [2009] O.J. No. 3745 (C.A.)
R. v. Harris, [2008] O.J. No. 1035 (C.A.)
R. v. Summers, [2014] S.C.J. No. 266 (S.C.C.)
10
R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.)
[19] I find these cases cited by the Defence somewhat
dissimilar in that one case dealt with a guilty
15 plea. In our case, there is no guilty plea and we
have no joint submission as to sentence. A number
of the cases also dealt with multiple counts,
whereas in our case there is only one offence on
which Mr. Porter was found guilty.
20
[20] The Crown produced a number of authorities which I
have reviewed, as follows:
Credit for "Strict" Bail Conditions
25
• R. v. Downes, (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.)
• R. v. Siconolfi, [2015] O.J. No. 6650
30 • R. v. R.O. 2015 ONCA 814, [2015] O.J. No. 6170
18
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Fail to remain - Sentencing Factors and Range
• R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181 (C.A.)
5 • R. v. Ramdass, [1982] O.J. No. 177 (C.A.)
• R. v. Yuzicapi, [2011] SKCA 134 at para. 29.
• R. v. Arruda, [2011], O.J. No. 6288, aff'd in
10 R. v. Arruda, [2002] O.J. No. 2403 (C.A.)
• R. v. Precup, [2015] ONSC 2112.
• R. v. Baker, {2004], O.J No. 6221 (C.A.)
15
• R. v. Folkes, [2010] ONCJ 326.
• R. v. Pijogge, [2013] Carswell Nfld 28,
(Newfoundland Supreme Court, Trial Division)
20
[21] The cases cited by the Crown assisted in
identifying a range of sentencing in Fail to
Remain cases and factors, both mitigating and
aggravating, which are significant.
25
[22] In R. v. Arruda, a 69 year old elderly victim was
crossing the street. Mr. Arruda struck her with
his vehicle. He may have been driving slightly
more than the speed limit. He fled the scene and
30 never returned to offer his name or assistance.
The elderly victim died as a result of the hit and
run. There was intense police investigation for
19
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about three days until Mr. Arruda retained a
lawyer and surrendered to police.
[23] Mr. Arruda entered a guilty plea at a very early
5 point in the prosecution. The sentencing judge
found him to be honestly remorseful. Mr. Arruda
was 25 years old at the time with a minor
unrelated record for a small amount of cocaine, as
well as some Highway Traffic Act speeding tickets.
10 Mr. Arruda was sentenced to nine months in jail,
one year of probation and a two year driving
prohibition.
[24] The court found that there were a number of
15 aggravating factors:
• the fact that the defendant left an elderly
person to die, causing significant victim
impact;
20
• the fact that the defendant took steps to
conceal his vehicle; and
• the fact of the act itself, being a cowardly
25 act to leave somebody to die without offering
help.
[25] The mitigating factors were:
30 • plea of guilty early in the proceedings;
• remorse;
20
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• defendant turned himself in, albeit days
after the offence.
[26] The sentence appeal was dismissed by the Ontario
5 Court of Appeal.
[27] The facts of the offence in the Arruda case are
remarkably similar to the facts in our case.
However, there are some significant differences
10 regarding aggravating factors. Mr. Porter took
extensive steps to hide the crime, lied to people,
and continued onto a stag party while the victim
was lying in the road, dead. Mr. Porter turned
himself in but did not plead guilty and, in fact,
15 continued to deny the offence at trial. He also
has shown no remorse except for a short statement
he made at the conclusion of submissions. The
Crown submits that there are significantly more
aggravating factors in Mr. Porter's case which
20 would warrant increased jail time.
[28] In R. v. Precup, Mr. Precup was convicted of
Dangerous Driving and Fail to Remain after a nine
day trial. He became angry at a pedestrian and
25 struck the pedestrian with his car. The
pedestrian died. Precup had no prior criminal
charges involving collisions. He also had a
schizophrenia diagnosis.
30
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[29] Significantly, Mr. Precup took active steps to
evade police and deflect responsibility following
his flight from the scene. He took active steps
to conceal and destroy evidence, conspired with
5 his wife to mislead police, and took steps to
shift the investigation away from himself. After
trial, he attempted to blame another witness in
the trial for the collision. He exhibited no
remorse at any point in the proceedings. He was
10 sentenced to two years in jail, a weapons
prohibition, a DNA order and a 10 year driving
prohibition.
[30] In our case, Mr. Porter took a number of active
15 steps to hide and destroy evidence: he lied to his
sister, he lied to Mr. Stern, he faked vandalism
to the car to add credibility to his lies, and he
attempted to have the car fixed to repair the
damage. These are aggravating factors.
20
[31] In R. v. Baker, Mr. Baker was convicted after
trial on charges of Criminal Negligence Causing
Injury and Failing to Remain at the scene of a
boating accident. His victims were injured but
25 there were no fatalities. Mr. Baker left the
scene of the accident. He testified that he
thought he hit a rock. He then continued home and
the police eventually came to his home later that
night and arrested him.
30
[32] The trial judge concluded that Mr. Baker's conduct
after the accident fell at the "high end" of the
22
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continuum for the degree of culpability in hit and
run cases.
[33] In Baker, the trial judge found that Mr. Baker's
5 conduct in returning to his cottage and going to
bed was a cowardly act and required communication
of society's condemnation of his conduct.
[34] In our case, Mr. Porter not only abandoned Mr. Yu,
10 but his conduct continued to the most serious end
of the scale. Mr. Porter engaged in calculated
deception. In terms of the victim impact,
Mr. Porter also caused death rather than injury.
15 [35] In Folkes, Mr. Folkes was driving home and hit the
victim who was jaywalking across the street. No
negligent driving was alleged, but Mr. Folkes'
driving licence was suspended at the time. The
victim did not die but suffered serious injuries.
20 Mr. Folkes braked heavily before impact and got
out of his car to examine the victim briefly. He
moved the victim off the road then fled the scene.
He left his car in a parking lot and then went to
a gas station and lied to the attendant and to an
25 officer, telling them someone stole his car.
Mr. Folkes continued to lie at his trial. The
trial judge disbelieved him and convicted
Mr. Folkes.
30 [36] In Folkes, the court found there were significant
aggravating factors:
23
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DiTomaso, J.
• the fact of the act itself, hitting a person
with a car and leaving them on the side of
the road, severely injured, without calling
for help;
5
• the fact that he concocted a lie and cover
story;
• lack of remorse and accountability; and
10
• criminal record.
[37] There were no real mitigating factors. Mr. Folkes
was sentenced to 15 months in jail after being
15 convicted at trial, a driving prohibition for 18
months and a DNA order.
[38] I find a review of the cases support the range of
18 months to two years less a day in light of the
20 aggravating factors in our case. A custodial
sentence in the range of 12 to 18 months suggested
by Defence counsel, although appropriate in other
circumstances, is not the appropriate range in
this case.
25
AGGRAVATING AND MITIGATING FACTORS
Aggravating Factors
30
[39] The aggravating factors in this case are as
follows:
24
Ruling
DiTomaso, J.
• substantial victim impact;
• although Mr. Porter was not charged with
5 attempt to obstruct justice, his actions
after the accident constituted an attempt to
obstruct justice;
• Mr. Porter's callous attitude towards the
10 victim and his family is an aggravating
factor;
• Mr. Porter struck Mr. Yu, killing him
instantly;
15
• Mr. Porter fled the scene without stopping to
check on Mr. Yu or offering to help him;
• Mr. Porter set upon a course of deception to
20 hide the crime;
• he continued on to a stag party while Mr. Yu
was lying in the road, dead;
25 • he damaged his sister's vehicle further to
make it appear as though it had been
vandalized;
• he lied to his sister and Mr. Stern.
30
25
Ruling
DiTomaso, J.
Mitigating Factors
• Mr. Porter has no criminal record;
5 • he was on bail for three years and ten months
in total compliance with his conditions;
• at the enhanced rate, he is entitled to 192
days of pre-sentence credit;
10
• he is supported by his family;
• he has secured employment with James Huggins
Construction as a general labourer (see
15 Exhibit 3, letter dated January 5, 2017 from
James Huggins);
• in Exhibit 2 (Book of Records and Authorities
for Sentencing filed by Mr. Porter's counsel)
20 there is a letter from Chad Walker dated
December 5, 2016, speaking to Mr. Porter's
service in assisting the Goulding Park
Rangers Bantam AA Hockey Club. Mr. Porter
has been a great inspiration and help with
25 the young people on the team. Further,
there is a letter from Patricia Hughes, dated
November 26, 2016, attesting to Mr. Porter's
positive role model for children involved in
the Kenfinch Youth Group and community;
30
• Mr. Porter is a youthful offender, 26 years
of age on the date of the accident.
26
Ruling
DiTomaso, J.
Remorse
[40] While absence of remorse is not an aggravating
5 factor, I find there was an absence of genuine
remorse on the part of Mr. Porter. When asked if
he had anything to say to the court prior to
sentencing, for the first time he wished to
apologize to Mr. Yu's family for the loss and
10 grief which he caused. Otherwise, he had nothing
else to say.
[41] While Defence counsel submits that the appropriate
range for sentence is a custodial sentence between
15 12 and 18 months, I do not agree. Rather,
Mr. Porter's conduct, when viewed in its totality,
approximates the higher end of the spectrum of
moral blameworthiness. It is at the higher end of
the scale. It approximates the upper to mid range
20 sentence sought by the Crown with the high end of
that sentence representing a custodial sentence of
two years less a day.
[42] In all of the tragic circumstances of this case, I
25 find that the aggravating factors far outweigh any
mitigating factors.
PRINCIPLES OF SENTENCING AND REASONS
30
[43] The fundamental purpose of sentencing as set out
in s. 718 of the Criminal Code, is to "contribute,
27
Ruling
DiTomaso, J.
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
5 objectives:
(a) to denounce unlawful conduct and the harm done
to victims or to the community that is caused by
unlawful conduct;
10
(b) to deter the offender and other persons from
committing offences;
(c) to separate offenders from society, where
15 necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to
20 victims or to the community; and,
(f) to promote a sense of responsibility in
offenders, and acknowledgment of the harm done to
victims or to the community.
25
[44] The fundamental principle at play in sentencing
can be found in s. 718.1 of the Criminal Code
where a sentence must be proportionate to the
gravity of the offence and the degree of the
30 responsibility of the offender.
28
Ruling
DiTomaso, J.
[45] Section 718.2(a) of the Criminal Code requires the
court to consider any relevant aggravating and
mitigating circumstances including evidence that
the offence had a significant impact on the
5 victims, considering their age and other personal
circumstances, including their health and
financial situation.
[46] Sentencing necessarily involves a balancing of
10 specific and general deterrence with the
rehabilitation of offenders. While Mr. Porter has
been convicted of a serious offence which he
committed at age 25, he has no prior criminal
record. He is currently 30 years of age. He has
15 the capacity to be a productive member of society.
There are a number of people who see him in that
light.
[47] However, in balancing the sentencing factors,
20 Mr. Porter's rehabilitation is secondary to the
principles of deterrence and denunciation.
General deterrence requires a sentence which will
influence drivers not to leave the scene of an
accident. Drivers should know that they cannot
25 avoid responsibility for their driving misconduct
by fleeing the scene and refusing to cooperate
with authorities. They gain nothing from leaving
the scene except the condemnation of society.
Specific deterrence and denunciation speaks
30 directly to Mr. Porter's criminal conduct.
29
Ruling
DiTomaso, J.
[48] The tragic and inescapable reality in this case is
that Mr. Porter was involved in a "hit and run"
collision with Mr. Yu. This collision caused Mr.
Yu's death. Mr. Porter fled the scene and through
5 calculated deception he tried to cover up his
crime.
[49] I find that Mr. Porter's conduct is certainly at
the upper end of the moral culpability. He
10 demonstrated a high degree of callousness and
disregard. He fled the scene in a calculated
attempt to avoid criminal or civil liability as
further evidenced by his conduct after he arrived
home.
15
[50] There is a continuum in hit and run cases where,
at one end, the accused does everything in his or
her power, through deception, calculation or
whatever means, to avoid liability. At the other
20 end of the scale are those cases where the accused
acted out of panic or an error in judgment. The
sentences should be adjusted for the degree of
culpability. (See R. v. Hindes [2000] ABCA 197 at
para. 56)
25
[51] In this case, the facts are clear. After
Mr. Porter struck and killed Mr. Yu, he did
everything that he could to escape civil or
criminal liability for the accident. He has shown
30 a consistent pattern of denying any responsibility
for his actions. He has made concerted efforts to
avoid responsibility for his actions. He has
30
Ruling
DiTomaso, J.
expressed no genuine remorse for the death of Mr.
Yu.
[52] In my view, taking all of the factors into
5 consideration, such as the circumstances of the
offence, the circumstances of the offender, impact
on the victims, the positions of the Crown and
Defence, review of relevant caselaw and,
aggravating and mitigating factors, and principles
10 of sentencing, I find the Crown's position
regarding the range of sentence, particularly, at
the upper end of the range of two years less a day
custody to be the fit and appropriate penalty.
15 SENTENCE
Global Sentence
[53] For these reasons, I find that a global sentence,
20 both fit and appropriate, for this crime is a
custodial reformatory sentence of two years less a
day.
Enhanced Credit
25
[54] As agreed by Crown and the Defence, Mr. Porter
shall receive enhanced credit of 192 days
representing 128 days served in pre-sentence
custody at an enhanced rate of 1.5 to 1 for a
30 total of 192 days.
31
Ruling
DiTomaso, J.
The Downes Principle
[55] The Crown submits that any credit regarding
Mr. Porter's bail out to be considered in the
5 global assessment of his sentence. No specific
period of time ought to be calculated by way of
credit.
[56] The Defence submits that Mr. Porter, given his
10 lengthy bail of three years and ten months, is
entitled to credit of four to six months in
reduction of his global sentence.
[57] I find for three years and ten months, (46 months)
15 Mr. Porter was under strict conditions limiting
his liberty. While those restrictions were not
the most extreme restrictions that could be placed
on his liberty, nevertheless, he lived with
reporting conditions to the police, a driving
20 prohibition and restrictions in respect of his
movement for a significant period of time. During
that interval, he was fully compliant. Granting
any credit in light of the principles in R. v.
Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 is entirely within the
25 discretion of the court. I am of the view that
said discretion ought to be exercised in favour of
Mr. Porter. I find that a further credit of three
months (90 days) is appropriate in all the
circumstances.
30
[58] Mr. Porter, please stand. For the Fail to Remain
conviction, I impose a global sentence of two
32
Ruling
DiTomaso, J.
years less a day from which is deducted the
enhanced credit on a 1.5 to 1 basis for
pre-sentence custody of 192 days. Further, from
the balance of 537 days, you shall receive a
5 further credit of three months or 90 days, further
reducing your sentence to 447 days or one year and
82 days. Your net sentence to be served in
reformatory, in addition to any time served, is
447 days or one year and 82 days.
10
Ancillary Orders
[59] Fail to Remain under s. 252 of the Criminal Code
is a "secondary" designated offence listed in s.
15 487.04(c)(iv) of the Code. There shall be a DNA
order under s. 487.051 of the Code.
[60] Further, there will be a driving prohibition under
s. 295(2) of the Criminal Code for a period of
20 three years. I note you have already been under
driving prohibition during the time of your bail
for a period of three years and ten months.
[61] In respect of probation, although the Crown has
25 asked for probation for a term of two years, I do
not find that a term of probation is necessary or
appropriate in this case.
]62] Please be seated. Ms. Montemurro, any comments?
30
MS. MONTEMURRO: Just one question. Is the
driving prohibition to commence at the end of
33
Ruling
DiTomaso, J.
sentence, at the end of his custodial sentence or
from today's date?
THE COURT: The driving prohibition is to
commence at the end of his custodial sentence.
5 MS. MONTEMURRO: Thank you. Those are all the
questions on my behalf then.
THE COURT: Any comment or questions, Ms. Kwan?
MS. KWAN: No, Your Honour. Thank you.
THE COURT: That concludes this matter.
10
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)
Evidence Act
15
I, Dianne Letts, certify that this document is a
true and accurate transcript of R. v. Daniel
Porter, in the Superior Court of Justice held at
50 Eagle Street West, Newmarket, Ontario taken
20 from Recording of March 15, 2017, Recording No.
4911_107_20170315_085802_10_DITOMAG.dcr.
25 __________________ ___________________________
(Date) Dianne Letts, C.S.R.
Certified Court Reporter
30