Her Majesty the Queen v. Downs, 2018 ONSC 4095
COURT FILE NO.: CR17-099-0000 DATE: 20180628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Andrea Camilletti, for the Crown
- and -
Tyler Downs Douglas Grace, for the Accused Accused
HEARD: June 28, 2018
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] After a trial by jury, Tyler Downs (“Downs”) has been found guilty of dangerous driving, by racing, causing bodily harm. The formal charge, count 2 on the Indictment, is reproduced below:
AND TYLER DOWNS FURTHER STANDS CHARGED THAT, on or about the 17th day of February, 2017, at the City of Owen Sound in the said region, while street racing, did operate a motor vehicle on a highway, to wit: the 500 block of 10th Street East, Owen Sound, Ontario, in a manner that was dangerous to the public, and did thereby cause bodily harm to Nicholas Heinzer, contrary to section 249.4(3) of the Criminal Code of Canada.
[2] Downs needs to be sentenced for that offence.
II. The Facts
[3] On the date in question, in the middle of the day, two cars met up on 10th Street East in Owen Sound, a multi-lane, busy thoroughfare. One, driven by Downs, was turning left onto 10th Street East to travel westbound. The other, driven by a young adult male named Bridge, was turning right onto 10th Street East, also to travel westbound. There are two westbound lanes of 10th Street East, and each of those lanes was occupied by one of the vehicles in question.
[4] The two cars were side by side and matching speeds, and then Mr. Heinzer, a passenger in the Downs vehicle, made a hand gesture to “go, go, go”, and Downs said “ok”. Both cars sped up, going significantly over the speed limit. They were racing westbound on 10th Street East, downhill, towards the downtown core of the city. Downs was cut-off when the other car swerved suddenly. Downs slammed on the brakes, lost control and crossed over the centre of the road and into the two eastbound lanes of traffic. A multi-vehicle collision ensued on 10th Street East which resulted in serious bodily injury to Mr. Heinzer. Although the Downs vehicle was involved in two crashes in very short succession, the Bridge car was not and continued on unscathed.
[5] A motor vehicle collision and accident reconstruction expert confirmed that the Downs vehicle was going at a top speed of 99 km/hr. at five seconds before impact with a white Lexus that was not involved in the street race. The speed limit in the area of the crashes was 50 km/hr.
[6] The Defence argues that this Court should find that the speed of the Downs vehicle is uncertain and may have been as low as about 65 km/hr. before the collisions, based on civilian testimony at trial. I do not accept that submission. The imprecise estimates of the lay witnesses cannot be preferred over the precise evidence of the expert. As the speed of the Downs vehicle is being relied upon by the Crown as an aggravating factor on sentence, I am cognizant of the need for the Crown to prove that speed beyond a reasonable doubt, and I am satisfied that the Crown has done so.
III. The Injuries to Mr. Heinzer and Victim Impact
[7] Mr. Heinzer nearly died at the scene of the collisions. Unresponsive, he was resuscitated by a heroic citizen. He was airlifted to a hospital in Toronto and placed in a medical coma. He was in the hospital for quite a while and then underwent intensive physiotherapy and rehabilitation. He experienced a traumatic brain injury that continues to affect him today.
[8] This Court has read the victim impact statements filed by Mr. Heinzer, his mother, the two occupants of the Lexus that was struck by the Downs vehicle, and the driver of the commercial truck that was also struck by the Downs vehicle. Much emotional, physical and economic loss has resulted from the criminal actions of Downs. None of these persons will ever be the same.
IV. The Offender
[9] This Court has the benefit of a presentence report. Downs just turned 20 years old. He was only 18 years of age when the offence was committed. He has no criminal record of any kind, nor does he have any driving record.
[10] Downs is very close with his maternal grandparents and with his mother. He currently lives with his maternal grandparents and his sisters in Hepworth. He has had no contact with his biological father for many years, and his relationship with his stepfather is strained.
[11] Downs himself was seriously injured in the collisions that led to him being charged by the police. He was airlifted to a hospital in London, Ontario. He was at the time of the crashes and remains best friends with Mr. Heinzer.
[12] Although Downs, a high school graduate, started a college program in London, Ontario in September 2017, he withdrew from that program when his mother was diagnosed with liver cancer in November 2017. His mother is currently receiving treatment in Mexico.
[13] Downs plans to return to college soon and study radio broadcasting. He works currently, five days per week at minimum wage, at the Wiarton Marina.
[14] Downs was polite, cooperative and forthcoming with the author of the presentence report, and he expressed great remorse with regard to the injuries and trauma experienced by all those who were affected by the collisions.
[15] As a result of the collisions, the stress of the Court experience and the serious illness that his mother is battling, Downs is seeing a psychologist for trauma therapy.
[16] There have been no issues with Downs complying with the conditions of his judicial interim release order since February 2017, and the author of the presentence report opines that he “appears to be an appropriate candidate for community based supervision”.
[17] Downs has written a letter that has been filed by the Defence. In that letter, he expresses his inability to remember the collisions, his anxiety and depression, his post-traumatic stress disorder, his injuries (broken ribs, a cracked pelvis, trauma to his spleen and liver, a collapsed lung, bruising to his heart, glass in his eyes, and major whiplash), his long road to recovery through physiotherapy, his mother’s diagnosis, and the enormous stress of the whole experience.
[18] At Court today, Downs spoke on his own behalf. He expressed genuine remorse for what happened and apologized to all of those who have been affected and to the public at large.
[19] There are also letters that have been filed from Downs’ mother, his maternal grandparents, Mr. Heinzer, Mr. Heinzer’s mother, and others. The letters plead for mercy to be shown by this Court and describe Downs as a generally responsible and caring person who is genuinely sorry for what happened on the day in question.
V. The Positions of the Parties
[20] The Crown suggests the following sentence for Downs: nine (9) months in custody, a driving prohibition order for three (3) years, and some other ancillary orders.
[21] The Defence recommends the following sentence for Downs: a fine and/or probation for up to twenty-four (24) months in duration. No issue is taken with the driving ban or the other ancillary orders sought by the Crown.
VI. The Legal Parameters
[22] Downs is not facing any minimum penalty, and the maximum punishment for his crime is fourteen years in prison. A conditional sentence order is statutorily unavailable.
VII. Analysis and Decision
[23] First, let us deal with the ancillary orders. There will be a victim fine surcharge imposed, with 90 days to pay. There will also be a driving prohibition Order for three (3) years. And there will be a section 109 firearms and weapons prohibition Order for ten (10) years and life, according to the two paragraphs of subsection (2). Finally, there will be a secondary DNA Order.
[24] Now, let us turn to the more substantive aspect of the sentence. Sentencing is a highly individualized process. The goal is to impose something that is fit given the unique facts and the special circumstances of the offender.
[25] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law. Any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[26] No offender should be deprived of his or her liberty if less restrictive sanctions are appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable should be considered for all offenders.
[27] For a youthful first offender like Downs, individual deterrence and rehabilitation are key. And it must be remembered that imprisonment is not the only way to achieve deterrence.
[28] Here, I view the paramount sentencing principles as being denunciation, general deterrence, specific deterrence and rehabilitation. Street racing is inherently dangerous conduct that must be strongly denounced by the courts, and the sentencing of dangerous drivers must send a message to society as a whole that one must have respect for other passengers, pedestrians and users of the road.
[29] Of course, as a first offender, Downs is a good candidate for rehabilitation, and his relative youthfulness means that individual deterrence is crucial.
[30] In my opinion, the aggravating factors at play in this case include: (i) the nature of the driving (street racing at a very high speed along a major city thoroughfare in the middle of the day) and (ii) the severe consequences (two collisions involving multiple vehicles and very serious, life-threatening injuries to Mr. Heinzer).
[31] The mitigating factors include: (i) the lack of any criminal history, (ii) the relative youthfulness of the offender, (iii) a relatively positive presentence report, and (iv) the excellent character letters.
[32] For parity purposes, it is important to note what happened to the other driver involved in the race, Bridge. He pleaded guilty, fairly early on, to three criminal offences – (i) dangerous driving, by racing, causing bodily harm to Mr. Heinzer, (ii) dangerous driving, by racing, causing bodily harm to Downs, and (iii) fleeing the scene under section 252 of the Criminal Code. On a joint submission that this Court accepted notwithstanding its perceived leniency towards Bridge, he received a global sentence of ten (10) months in jail, plus a five (5)-year driving ban, plus other ancillary orders. He was only 19 years old when he was sentenced, without any criminal record but with three prior traffic offences, and with several other mitigating factors in his favour.
[33] In my view, having considered the facts, the circumstances of Downs, and the case law filed by counsel, nothing short of jail would be appropriate for Downs. Further, nothing much different than what Bridge received would be a fit sentence for Downs.
[34] Yes, Bridge’s moral culpability was even higher than that of Downs. Bridge’s erratic cutting-off of Downs and his leaving the scene of what he knew to be an accident were terrible conduct. And yes, Bridge, unlike Downs, had a prior driving record.
[35] On the other hand, however, Bridge’s sentence was based largely on the important mitigating factor of his fairly early guilty pleas. That mitigating factor is absent in the case of Downs.
[36] The Crown is already asking for a sentence for Downs that is less than that received by Bridge, both in terms of the length of custody and in relation to the duration of the driving ban. In my view, the Crown’s position adequately takes into consideration the differences between the two matters but still respects the principle that similar offenders ought to generally be treated similarly when it comes to sentencing.
[37] For these reasons, I agree with the Crown’s position on sentencing. Downs is hereby imprisoned for a period of nine (9) months.
Conlan J.
Released: June 28, 2018