Citation: R. v. Porto, 2017 ONSC 733
COURT FILE NO.: CR-15-3502
DATE: 20170322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jamie Porto
Offender
Peter Scrutton, for the Crown
Daniel W. Scott, for the Accused
HEARD: November 15, 16, 17 and 18, 2016
Reasons for Judgment: December 15, 2016
REASONS FOR sentence
thomas j.:
[1] After a trial, I found Jamie Porto guilty of the offence of dangerous driving causing bodily harm.
[2] At the time of the offence - October 24, 2014 – Jamie Porto was a 32 year old constable with the Ontario Provincial Police. He was responding to an emergency call from his dispatcher alerting all units in Essex County to a serious motor vehicle accident near Highway 401 in Lakeshore.
[3] It was just after 2:00 p.m. on a sunny Friday fall afternoon. Jamie Porto left the Town of Belle River and accelerated rapidly down the two-lane highway that was County Road 42. He drove into the Village of St. Joachim with emergency lights and siren activated.
[4] I made the following findings of fact at paragraphs 72, 73, 84 and 90 of my judgment. These findings need to be reviewed to give context to this sentencing:
[72] I am required to expand my examination beyond speed to consider its context. Constable Porto entered a small village at 2:00 p.m. on a sunny fall Friday afternoon. He crossed into the 50 km/h zone, travelling 178 km/h. He passed a sign alerting him to the 50 km/h zone, a school sign, a 50 km/h sign, two construction signs, and a sign alerting him to a community safety zone. He passed an elementary school, a church, a post office, a rest home, a restaurant and private residences. There were sidewalks and driveways leading to the buildings, which were close to the road. He encountered two intersections, one for County Road 31 south and one for County Road 31 north, the latter being the location of the collision. At that location, there was a full service gas station with gas pumps close to the road. This area was not new to Constable Porto – he had been assigned here for four years. He had been through St. Joachim hundreds of times before.
[73] Constable Porto recognized that Ryan Coombes’ vehicle obstructed his path eastward through St. Joachim. He said he saw Coombes’ vehicle from about 200 metres away (or about the elementary school). At that point, he moved into the westbound lane to pass Coombes’ vehicle. This is consistent with the evidence of the Aecon worker, Mr. Apollonio.
[84] The road at this intersection was flat, the lines of sight clear. Ryan Coombes was required by law to pull off to the right when aware of Constable Porto’s vehicle approaching. He was required by law to ensure he could make his left hand turn in safety. I accept that he never saw the police vehicle. I also find it was there to be seen. I recognize, as well, that he had his radio on and his windows up. I reflect on the evidence of Frank Apollonio. He said the officer was “going so fast it’s hard to believe the kid would have seen him.” The failures of Ryan Coombes do not excuse Jamie Porto’s conduct.
[90] Constable Porto should have foreseen the danger posed by Mr. Coombes’ vehicle. At the speed he was travelling, he should have realized that he had no time to react if he guessed wrong. I find that the reasonable police officer in these circumstances would have reduced his speed dramatically and maintained his eastbound lane until he was sure of the intentions of Ryan Coombes. The failure to reduce his speed and proceed to pass at this intersection in the middle of the village amounted to a marked departure from the standard of care of a reasonable police officer.
[5] Miraculously, despite the violent impact, neither Ryan Coombes nor Jamie Porto were seriously injured. Miraculously, as well, the pedestrian, Lisa Holmes and her daughters shook out the glass and walked away despite being within a few feet of the spinning Coombes vehicle.
Positions of the Parties on Sentence
[6] The defence seeks an absolute discharge. Counsel argues that Jamie Porto clearly has been specifically deterred by this prosecution and that I should accept that the message has gone out regarding the need for officers to react to emergencies in the most responsible way possible.
[7] The prosecution accepts that specific deterrence has been achieved but he maintains general deterrence and denunciation cannot be accomplished through a discharge. Counsel argues the sentence must be punitive if it is to provide a message to the broader policing community.
[8] The prosecution acknowledges the mitigating factors but suggests an appropriate sentence to be probation, a fine and an 18 month driving prohibition
Aggravating and Mitigating Factors
[9] It is aggravating that Jamie Porto is a police officer, sworn to uphold the laws of the Province and yet he committed a criminal offence.
[10] The facts are, as well, aggravating. An extremely high rate of speed through a village in mid-afternoon leading to a collision causing bodily harm. Ryan Coombes had a number of cracked ribs and a concussion. Property damage was extensive. Trepanier’s service station suffered a significant financial loss.
[11] I have considered the content of the victim impact statement of Darlene Trepanier which speaks not only of monetary loss but of what she views as a lack of remorse.
[12] In mitigation Jamie Porto is 34 years of age. He obviously has no criminal record. He has no driving record. He was reacting to a public emergency. He was attempting to do his job. He exercised poor judgment to the extent it became criminal.
[13] He has been a good police officer for ten years. He is married with two young children. He is an involved member of the community. I accept that he is remorseful. I accept that he has learned from this mistake.
Analysis
[14] Section 249(3) of the Criminal Code, R.S.C. 1985, c. C-46, is the penalty section for dangerous driving causing bodily harm and allows for a penalty of imprisonment up to 10 years. As a result, a broad range of sanctions are available but not including a conditional sentence because of the bodily harm and the operation of s. 742.1(e)(i). The broad range of penalties for this offence indicates that each case is largely to be determined by its own facts.
[15] Section 259(2) provides discretion to the court in prohibiting the offender’s ability to operate a motor vehicle when convicted or discharged for this offence. That prohibition could be as long as 10 years.
[16] Section 41(1)(b) and (g) of the Highway Traffic Act, R.S.O. 1990, c. H.8, operates in tandem to suspend the driver’s licence of the offender on conviction. Section 41(5) directs a suspension on a discharge. That suspension for a first conviction is a year in duration.
[17] I am required to consider the purposes and principles of sentencing contained in sections 718 to 718.2 of the Criminal Code.
[18] The decision of the Court of Appeal in R. v. Rawn, 2012 ONCA 487 (Rawn), provides a comprehensive look at the relevant purposes and principles in play for this offence.
[19] In Rawn, Epstein J.A. considered a situation akin to street racing where two vehicles were proceeding in tandem at speeds at least 137 kilometres per hour in a residential area. The vehicles collided and serious injuries resulted. The penalty at trial was a suspended sentence and probation. In setting aside the sentence and imposing nine months imprisonment with a five year driving prohibition, Justice Epstein commented at paras. 43 and 45 about the objectives of sentencing and the appropriate range:
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 requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable.
In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range for impaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146, at paras. 59-61.
[20] A deterrent sentence must emphasize community disapproval of the act and brand it reprehensible. That branding has a moral and educative affect not only on the offender, but hopefully on the public who will then not likely commit a similar act (R. v. Roussy, [1977] O.J. No. 1208 (O.C.A.), at para. 5).
[21] But along with deterrence and denunciation, I must be concerned with proportionality. A principle that is rooted in notions of fairness and justice (R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (O.C.A.), at para. 26).
[22] As Doherty J.A. suggested in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (O.C.A.), at para. 102:
Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.
[23] This sentencing I find to be particularly difficult. This is a not a driver street racing or swerving in and out of traffic. The gravamen of this offence is disregard for public safety. The reason that this case is so challenging is that this police officer’s motive was the protection of public safety. While his motive is not a legal defence, it substantially mitigates moral culpability. Here, unlike most crimes, the officer’s conduct had considerable social utility. It became criminal only because he responded in a disproportionate manner.
[24] But, “a failure to exercise one’s capacities and power to bring about and control conduct and its risks is a culpable failure and sufficiently morally culpable to attract the criminal sanction” even if as it is inadvertent (Don Stuart, Criminal Negligence: Deadlock and Confusion in the Supreme Court (1989), 69 C.R. (3d) 331, at p. 333).
[25] This sentence must then attempt to balance the level of culpability of the offender and the need to denounce and deter with the other relevant circumstances, including the finding that Ryan Coombes made an illegal left turn into the path of Porto’s police vehicle and perhaps the recognition that Porto’s employer has no policy or directive regarding this form of response.
[26] What sentence is proportionate when considering the need to deter and denounce Jamie Porto’s driving while acknowledging his moral position?
[27] In this analysis, I must confess to a considerable concern. The evidence in this trial clearly indicated to me that this type of driving in these circumstances was not necessarily a rare occurrence. At para. 76 of my reasons, I made the following observation:
I am reminded as well that Constables Marrocco and Pillon endorsed the actions of this accused officer. Constable Pillon testified he was travelling 190-200 km/h responding to the same call. While all officers, including Porto, agreed they had to travel as fast as they could safely, all clearly reached the same conclusion that this collision was the result of Ryan Coombes making an unadvised and illegal left turn into Porto’s path when he should have pulled over to the right and stopped. There was nothing wrong with Jamie Porto’s speed.
[28] The question then becomes what sanction imposed on Jamie Porto will send the necessary message to this very unique audience? Should my sentence speak to them more so than the community of drivers at large? Is the charge, trial and finding of guilt enough to accomplish that goal?
[29] Constable Porto, in sentencing, told me that his fellow officers now react differently to emergency calls. All of them are more careful of their speeds. I have a copy of an e-mail sent to officers in the County from Staff Sergeant Marocko, Essex County O.P.P. Operations Manager. I will consider the details of the e-mail later.
[30] I must, as well, acknowledge the potential impact of this process and a conviction on the ability of Jamie Porto to continue his career as a police officer. While that concern cannot overpower the rest of the analysis and cannot force the sentence out of an acceptable range, it is still a valid consideration (R. v. Pham 2013 SCC 15, 2013 S.C.C. 15 para. 18, R. v. Edmunds 2012 NLCA 26, 2012 N.L.C.A 26, R. v. Swienszcz, 2006 CanLII 8713 (ON CA), 2006 208 O.A.C. 300 (O.C.A.), at para. 5).
[31] As to this collateral consequence I have learned that the Ontario Provincial Police did not commence an investigation of potential Police Act charges until after I found Jamie Porto guilty of the offence, or 26 months after the accident.
[32] The best guess I have from counsel as to the employment consequences to the offender suggests a potential loss of income due to demotion or days off. Any loss of his driver’s licence will clearly affect his employment duties.
[33] Jamie Porto has maintained his regular duties from the time of charge and continues to patrol the community.
[34] I am not certain my sentence, whatever it is, will affect the Police Act process or impact his employment in these particular circumstances.
[35] The defence seeks a form of discharge pursuant to s. 730 of the Criminal Code. A discharge is legally available. To be appropriate it must be in the offender’s best interests, that is the offender is not in need of specific deterrence or rehabilitation. I accept that as being the case in this instance.
[36] More importantly, and frankly more troublesome, is the assessment of whether a discharge in this case is “not contrary to the public interest”. Could it act with the necessary deterrence and denunciation? What is the public interest in this case that must be protected? (R. v. Sanchez-Pino, 1973 CanLII 794 (ON CA), [1973] O.J. No. 1903 (O.C.A.) para. 17) (Sanchez-Pino)
[37] In Sanchez-Pino, at paras. 18 and 19, Arnup J.A. discussed the situations where the discharge provisions of the Criminal Code might be applied.
It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is “not contrary to public interest”. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.
[38] In considering the potential of a discharge, I am mindful of the caution expressed by Epstein J.A. in Rawn. At paragraph 44, she confirmed that the 2007 amendments to the Criminal Code removed the potential of a conditional sentence for this offence. She noted “the more important consequence of this amendment is that it signals that Parliament has determined that conduct of this nature will not be tolerated”.
Conclusion
[39] I accept that a discharge of some form is in the best interests of Jamie Porto. I find, however, that a discharge would be contrary to the public interest.
[40] In coming to that conclusion I have considered all the special circumstances of this case. I have found that the lessened level of moral blameworthiness recognized in Jamie Porto’s motive for his driving and his stated remorse have muted the call for any specific deterrence.
[41] I am not convinced that a discharge can satisfy general deterrence or denunciation.
[42] I am concerned that other officers testified they responded to emergencies in a similar and consistent manner. I am concerned that the Ontario Provincial Police did not see the obvious inherent danger posed by this driving and chose instead, it seems, to rest all blame on the left turn of Ryan Coombes, waiting for the conclusion of this Court.
[43] I am concerned about the underlying tone of the message of Sergeant Marocko. Staff Sergeant Marocko comments in his e-mail to County officers about a potential petition from St. Joachim residents and the need to respond to high priority calls in a safe manner, but the final paragraph says the following:
This email is a reminder that all of our actions have a reaction by the communities we serve. The overwhelming majority of time the reaction is positive and serves to build strong community relations. Occasionally the reaction from our communities can be negative, and we will of course challenge that and defend our members actions. Please be conscious of the speeds traveling through St. Joachim as well as all of our communities.
[44] I read that as saying: We will continue to defend our actions to the public and slow down in communities to limit criticism of police.
[45] Perhaps instead of getting behind the officer, the organization needs to get out front with training and supervision. Finally, I am concerned about the comment of Jamie Porto where he expresses his remorse, but tells me:
No one really understands policing and the experiences until you’ve been a police officer and had to deal with the best and worst that humanity offers.
We get there when we get there is the best approach now, regardless of the emergency.
[46] I have great respect for police officers and the work they do, but this is not a “them” and “us” environment. We are all servants of the public who employ us and rely upon us and have a right to demand the very best from us. No one promised the job would be easy.
[47] I believe Jamie Porto is a good police constable, husband and father. Whatever the reaction of his employer to this sentence, I hope he will continue in that role. However, there must be a sentence that speaks to the seriousness of the offence. Lest it appear that I am sentencing Jamie Porto more seriously solely to send a message to others, that is only one factor. As the Court directed in Rawn, “the sentence must clearly reflect the seriousness of the conduct and its consequences both actual and potential”.
[48] A conviction will register. There will be a $2,500 fine with the appropriate surcharge and eight months to pay both. I see no reason to place Jamie Porto on probation and I believe he has been doing community service as part of his employment. There will, however, be a driving prohibition of 12 months. I recognize the effect of the loss of his driving privileges on both him and his family. It is a necessary part of this sentence if it is to meet the punitive purpose required.
“original signed by Justice Thomas”
Bruce Thomas
Justice
Released Orally: March 22, 2017
CITATION: R. v. Porto, 2017 ONSC 733
COURT FILE NO.: CR-15-3502
DATE: 20170322
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jamie Porto
REASONS FOR sentence
Thomas J.
Released Orally: March 22, 2017