COURT FILE NO.: 18-675
DATE: 2019/09/16 (Orally)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD DAFOE
Defendant
Elizabeth Wilson and Frances Brennan, for the Crown
Eric Van Drunen, for the Defendant
HEARD: September 11, 2019
JUSTICE I.F. Leach (ORALLY)
[1] Before me for sentencing is Richard Dafoe.
[2] On the evening of May 17, 2019, following a five-day trial by judge and jury, Mr Dafoe was found guilty of the following five offences:
i. dangerous operation of a motor vehicle, contrary to s.249(1)(a) of the Criminal Code of Canada, (“the Code”);
ii. flight from police in a motor vehicle, contrary to s.249.1(1) of the Code;
iii. mischief in relation to property having a value exceeding $5,000.00, contrary to s.430(3) of the Code;
iv. resisting arrest by a police officer, contrary to s.129(a) of the Code; and
v. possession of methamphetamine, contrary to s.4(1) of the Controlled Drugs and Substances Act, (“the CDSA”).
[3] Following delivery of the jury’s verdict, the matter initially was adjourned to be spoken to in the next assignment court, on May 24, 2019. On that date, I directed preparation of a pre-sentence report, pursuant to s.721 of the Code. At the request of defence counsel, I also directed preparation of an “Electronic Supervision Program (ESP) Technological Report”, relevant to anticipated defence submissions suggesting imposition of a conditional sentence.
[4] The matter then was adjourned to September 3, 2019, (the first day of the current trial sittings here in Stratford), for scheduling of a sentencing hearing within this three-week trial sitting.
[5] That sentencing hearing then proceeded before me on September 11, 2019, at which time I received submissions from Crown and defence counsel. Mr Dafoe declined the opportunity to make any comments directly, pursuant to s.726 of the Code.
[6] The matter then was adjourned to today, for imposition of sentence.
Circumstances of the Offences
[7] I begin with consideration of the circumstances underlying Mr Dafoe’s five convictions, which all stem from what can only be described as an extraordinary series of events that took place in the late afternoon of Saturday, February 17, 2018.
[8] In that regard, pursuant to s.724(2) of the Code, I have regard to considerations such as the following matters that were disclosed at trial, which includes, in my view, factual findings implicit in the jury’s verdict, as well as additional relevant information consistent with those findings:
At approximately 5:20pm on February 17, 2018, (a day that was sunny and clear with no adverse weather or road conditions), an OPP Constable - Officer Green - was travelling northbound on Highway 23 here in Perth County, north of Mitchell, when he noticed Mr Dafoe drive past him, in the opposite direction, at a very high rate of speed.
As Mr Dafoe noticed at the time, Officer Green immediately turned his marked police vehicle around to pursue Mr Dafoe and his Intrepid motor vehicle. Thus began a police pursuit that would last approximately 25 minutes, and extend over a distance of 41km through rural and more densely populated communities.
In particular, Mr Dafoe and his vehicle, with a growing number of officers and marked police vehicles in pursuit, proceeded south on Highway 23, into and through downtown Mitchell, (where he turned right onto Highway 8), and West on Highway 8 to and through downtown Seaforth before reaching the outskirts of the larger town of Clinton, where Mr Dafoe and his vehicle were finally brought to a stop.
In the course of that police pursuit:
Apart from slowing occasionally, (e.g., after crossing the first of two spike belts deployed by police, and to make a right angled turn from Highway 23 onto Highway 8, in downtown Mitchell), Mr Dafoe and his vehicle consistently travelled at speeds well over posted speed limits, admittedly reaching speeds up to 170kph; speeds which a number of experienced police officers, testifying at trial, described as extreme, “flying”, and “faster than anything [they] had seen before”.
Mr Dafoe, his vehicle and pursuing police vehicles continued at such excessive rates of speed through built up municipal areas, (i.e., Mitchell and Seaforth), with some of that police pursuit being caught on the video cameras of businesses along the way, as Mr Dafoe and his vehicle approached the even larger community of Clinton.
While doing so, Mr Dafoe repeatedly and aggressively passed numerous vehicles in his own lane, and veered into or drove for extended periods of time in the lane of oncoming traffic, both of which repeatedly forced oncoming traffic to take evasive action; e.g., by pulling off the road in ways that often barely avoided collision.
Mr Dafoe continued to drive on in that dangerous fashion, at such high rates of speed, even after three of his vehicle’s tires had been blown by the first spike belt deployed by police, and then after traversing the second spike belt deployed by police – with Mr Dafoe continuing to travel on his vehicle’s bare wheel rims, (with inherently reduced steering capacity), once the damaged rubber on the tires had been completely worn away. In doing so, Mr Dafoe’s vehicle continued to scatter debris from the damaged tires and surrounding parts of his vehicle, with some of that debris being cast up and onto nearby vehicles, (e.g., inflicting damage to the hood and windshield of the pursuing police vehicle being operated by Officer Blacklock, requiring repairs costing $1,191.70), and leaving other debris scattered on the roadway.
In passing through downtown Seaforth, Mr Dafoe and his vehicle proceeded through a red traffic light signal at approximately 80kph, without stopping – avoiding a collision at the intersection because officers had anticipated the danger and raced ahead to the relevant intersection in a desperate attempt to stop and hold other traffic before Mr Dafoe and his vehicle got there.
As no less than four marked police vehicles, (operated by Officers Green, Blacklock, Morgan and Payette), pursued and surrounded Mr Dafoe, with their emergency lights flashing and sirens sounding, Mr Dafoe and his vehicle repeatedly moved towards the police vehicles, making contact with them on a number of occasions. Such actions initially caused the officers, fearing for their own safety, to refrain from further efforts to execute a “rolling block” manoeuvre; i.e., boxing Mr Dafoe’s vehicle in with police vehicles all around it, before then slowing and stopping the police vehicles to force Mr Dafoe’s vehicle to a stop as well.
When the pursuing officers finally received authorization and direction from their superiors to execute and complete the aforesaid “rolling block” manoeuvre, despite the inherent dangers - in an effort to bring Mr Dafoe and his vehicle to a stop before it made its way into the more densely populated and congested area of Clinton where an accident seemed inevitable - the officers did so on Highway 8, on the eastern outskirts of that town.
Once Mr Dafoe’s vehicle finally had been brought to an initial stop outside of Clinton, he did not immediately turn his engine off, or lower his window. Instead, Mr Dafoe continued to rev his vehicle’s engine loudly before proceeding to accelerate again, with his vehicle’s bare wheel rims digging into the highway pavement. In the result, Mr Dafoe’s vehicle continued to push forward into and under the rear of the police vehicle stopped ahead of it, (i.e., the marked police vehicle assigned to Officer Morgan), in turn causing damage to that vehicle’s rear bumper, muffler and undercarriage requiring $2,535.35 in repairs.
In the circumstances, the attending police officers, who had exited their vehicles to approach Mr Dafoe, necessarily resorted to breaking the driver’s window of Mr Dafoe’s vehicle with a collapsible police baton, while continuing to yell instructions to Mr Dafoe to turn his vehicle off. At that point, Mr Dafoe finally turned off his vehicle’s engine.
[9] At trial, Mr Dafoe claimed, in his testimony, that the entire incident had resulted from a completely unexpected and accidental situation that simultaneously resulted in his vehicle’s accelerator being full depressed while he effectively was prevented from using his vehicle’s brakes. In particular, Mr Dafoe claimed:
a. that he had experienced a sudden muscle spasm or cramp in his right leg which pushed his right foot forward, and was accompanied by an attempt on his part to address the cramp by turning his right foot inwards so that he could massage his leg;
b. that such movements nevertheless resulted in the steel toe of his right winter work boot becoming firmly lodged underneath the brake pedal, while its heel was still firmly pressed down on the accelerator, causing his vehicle to accelerate to its maximum speed in a completely sustained manner;
c. that, at the same time, he was unable to apply the “normal” brake with his left foot, (although he tried to do so), as the boot toe underneath it prevented the brake from being depressed;
d. that he also was unable to apply his vehicle’s emergency brake, because of his resulting awkward position in the vehicle, the position of his vehicle’s driver seat, and the position of his vehicle’s dashboard;
e. that he could not turn his vehicle off because he then would lose power steering;
f. that he also was not inclined to put the vehicle into neutral, as it might “blow” his engine by over-revving it without its transmission being engaged; and
g. that his vehicle had only moved into and under the rear of Officer Morgan’s vehicle because it had been hit from behind by another police vehicle.
[10] The account Mr Dafoe gave at trial was at odds with a video-recorded statement Mr Dafoe gave to police a day after the incident, during which he mentioned nothing about any such boot difficulty, but instead indicated that he generally lacked a memory about much that had happened during the incident, apart from hearing a voice in his head telling him not to stop, (although he should have), because “the cops” would “kill” him if he did. In his recorded statement, he also recalled thinking the police were “playing dirty” by deploying spike belts to slow him down.
[11] In any event, the jury, in its verdict, clearly rejected Mr Dafoe’s assertion at trial that his ostensible dangerous driving, flight from police in a motor vehicle, and mischief causing damage to police vehicles, (worth more than $5,000), were caused by events beyond his control, in the manner he alleged.
[12] Fortunately, it seems that no one was injured during the course of the extended high-speed pursuit, and that the only notable property damage inflicted during the course of the pursuit was that sustained by the two police vehicles, (described above), and Mr Dafoe’s vehicle.
[13] After Mr Dafoe’s vehicle had been brought to a stop, and he finally had turned off its engine, Mr Dafoe repeatedly was instructed by police officers to remove his seatbelt and exit his vehicle. However:
a. After removing his seatbelt slowly and reluctantly, Mr Dafoe failed to comply with police instructions to get out of his vehicle. He instead was non-compliant and uncooperative, refusing to exit the vehicle and yelling that he had “not done anything wrong”.
b. When Officer Green then took hold of Mr Dafoe’s left arm, in an effort to remove Mr Dafoe from his vehicle, Mr Dafoe pulled away and actively leaned into and towards the passenger side of his vehicle, saying, in a very irritated and upset manner, “leave me alone” and “get your hands off me”.
c. At that point, after Officer Green had been struggling to remove Mr Dafoe from his vehicle, Officer Smith chose to deploy his “Controlled Energy Weapon”, (or “CEW”), alternatively identified, in colloquial terms, by reference to the brand name “Taser”.
d. Although Officer Smith fired the CEW at Mr Dafoe, the firing was not consistent with a good deployment. It nevertheless did enable the officers to remove Mr Dafoe from his vehicle and put him to the ground outside of his vehicle, in an area near the vehicle’s driver door.
e. Once Mr Dafoe was on the ground, the officers attempted to place Mr Dafoe in handcuffs, with his hands behind his back. However, those efforts were hampered by Mr Dafoe failing to comply with repeated officer directions to get his hands behind his back, and Mr Dafoe instead holding one arm and hand underneath his body for approximately 45 seconds.
f. In the result, one of the attending officers, (Officer Morgan), was obliged to use his expandable baton in a “prying action” to assist in freeing Mr Dafoe’s concealed arm for the arresting officer, so that the hand of that arm could be seized and cuffed as well.
[14] In his testimony at trial, Mr Dafoe denied that he had resisted arrest, claiming instead that the police officers were needlessly aggressive; e.g., swearing at him, calling him names and, “for no good reason”, smashing his car window, grabbing at him suddenly without his pulling away, and tasering him. He also claimed that he was trying to get his arm out from underneath him, but was prevented from doing so by the way the officers were holding him down to the ground – while ignoring his requests to “get the fuck off” him.
[15] In my view, the jury, in its verdict, clearly rejected Mr Dafoe’s version of events, as far as the circumstances of his arrest were concerned.
[16] It seems that no police officers were injured during the course of Mr Dafoe’s arrest.
[17] However, Mr Dafoe did sustain injuries to his face, (because of a distracting blow inflicted by Officer Green and/or by Mr Dafoe’s face being pressed to the ground outside his vehicle, in an area where there were pieces of glass from his broken car window), and Mr Dafoe complained of other injuries; e.g., to his arm.
[18] The circumstances underlying Mr Dafoe’s convictions also include police discovery of methamphetamine that had been in possession of Mr Dafoe. In that regard:
a. At the time of his arrest, the arresting officer, (Officer Green), observed a dry white substance around Mr Dafoe’s mouth, and noticed that Mr Dafoe was sweating profusely. It appeared to the officer that Mr Dafoe was “under the influence” of some substance at the time.
b. Shortly after Mr Dafoe had been removed from his vehicle, put to the ground outside and placed in handcuffs, Officer Payette discovered, lying on the roadway near to where Mr Dafoe had been put to the ground, and wrapped in a paper towel, a glass pipe containing burnt and unburnt residue of a powder or crystal substance.
c. Police also located a butane lighter inside a pocket of Mr Dafoe’s trousers, and additional butane lighters in his vehicle.
d. Later the same day, at a hospital where Mr Dafoe had been taken by the police after his arrest, for assessment and treatment, Sergeant McIsaac also located, in the breast pocket of a shirt Mr Dafoe was wearing, (after a hospital x-ray technician had alerted the officer to the presence of something there), a small plastic baggie containing a substance.
e. Subsequent measurements and testing confirmed that the substance on the pipe, and the substance in the plastic baggie, were both methamphetamine. – with the pipe containing at least .2 grams of that substance, (i.e., the amount scraped off and sent for testing), and the baggie containing a total of .9 grams of methamphetamine.
[19] In his trial testimony, Mr Dafoe denied that he smoked methamphetamine, denied that the pipe or baggie of methamphetamine belonged to him – although, in his video recorded statement provided to the police the day after his arrest, he appeared to acknowledge that the pipe was his. In cross-examination at trial, it was suggested that the police had brought the baggie of methamphetamine to the hospital and deliberately “planted” the baggie and its contents in Mr Dafoe’s shirt pocket.
[20] In my view, the jury, in its verdict convicting Mr Dafoe of possessing methamphetamine, implicitly rejected Mr Dafoe’s denials and assertions in that regard. To the extent the verdict is ambiguous as to whether the jury found both the pipe and the baggie to have been in Mr Dafoe’s possession, I find that both items were in his possession. In particular:
a. The glass pipe was found on the roadway near to where Mr Dafoe had been taken to the ground, and was accidentally broken when Officer Payette stepped on the paper towel before noticing the item. I think it highly improbable that such a pipe coincidentally happened to be in the precise location where the traffic pursuit randomly happened to stop – and that it lay there unbroken on the highway with vehicles passing by until Officer Payette stepped on it. In my view, the overwhelming reasonable inference is that the pipe came to be where it was through Mr Dafoe.
b. In his own testimony, Mr Dafoe confirmed that the baggie containing methamphetamine initially was located in his shirt pocket by a hospital x-ray technician who drew it to the attention of the police. In my view, none of those realities were reasonably or logically consistent with the police having planted the baggie there with an elaborate intention to feign “discovery” of it there at some later time, trusting in Mr Dafoe or others not having found and disposed of the baggie and its contents before then.
Number of convictions – Possible application of R. v. Kienapple
[21] Before proceeding further, I pause to address an issue, raised during sentencing submissions, as to the number of convictions in respect of which I should be imposing sentence upon Mr Dafoe. In that regard:
a. In the course of his submissions, counsel for Mr Dafoe - relying upon the rule against multiple convictions set forth and explained by the Supreme Court of Canada in R. v. Kienapple, 1974 CanLII 14 (SCC), 1975] 1 S.C.R. 729, and R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480 – asked that a conditional stay be imposed in relation to the jury’s finding of guilt in relation to Count 2 of the indictment, wherein Mr Dafoe was charged with flight from a peace officer in a motor vehicle, contrary to s.249.1(1) of the Code.
b. In essence, it was suggested that a conviction for flight from peace officers in a motor vehicle contrary to s.249.1(1) of the Code would be improperly duplicative of a simultaneous conviction for the offence of dangerous operation of motor vehicle contrary to s.249(1)(a), arising from the same underlying driving conduct, and that dangerous driving was the more serious offence on these particular facts.
c. In support of his suggested approach in that regard, counsel for Mr Dafoe drew an analogy to the approach adopted in R. v. Arlow, [2013[ O.J. No. 4475 (S.C.J.), wherein the offender was found guilty of offences including flight from peace officers in a motor vehicle causing bodily harm and dangerous driving causing bodily harm, and the court entered a conditional stay in relation to the latter offence at the request of the Crown. See, in particular, R. v. Arlow, supra, at paragraphs 15 and 53.
d. In response, Crown counsel disagreed with the suggestion that the circumstances warranted a conditional stay in relation to Mr Dafoe’s offence of flight from police officers in a motor vehicle, contrary to s.249.1(1) of the Code.
e. In that regard, Crown counsel relied on R. v. Knuff, [2008] O.J. No. 683 (O.C.J.), affirmed [2009] O.J. No. 1696 (C.A.), and R. v. Manship, [2014] O.J. No. 5499 (S.C.J.), affirmed [2015] O.J. No. 6315 (C.A.), wherein each offender received separate custodial sentences for dangerous operation of a motor vehicle and flight from a peace officer in a motor vehicle, although the two offences clearly arose from the same underlying events; i.e., events wherein the offender drove dangerously while trying to evade pursuing police.
[22] Resolution of the issue obviously will determine the nature of the additional convictions added to Mr Dafoe’s criminal record.
[23] However, as counsel candidly acknowledged, the “Kienapple” issue raised by defence counsel is somewhat academic, at least in terms of the practical outcome of this sentencing exercise, as there was no disagreement that the sentences imposed in relation to all of Mr Dafoe’s sentences should run concurrently in any event.
[24] In the circumstances, I will limit my treatment of the issue to an indication of my view that a conditional stay of Mr Dafoe’s s.249.1(1) offence is not appropriate for reasons that include the following:
a. As the Supreme Court indicated in R. v. Prince, supra, the “Kienapple rule” precludes multiple convictions for different offences only where the circumstances establish both a factual and legal nexus connecting the offences.
b. In that regard, the Supreme Court noted that, in most cases, the factual nexus requirement will be satisfied if the same act of the accused grounds each of the relevant charges; i.e., if the charges sufficiently arose from the same transaction or act. That determination is to be made on a case by case basis, having regard to the particular factual context. However, factors to be considered include the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events, and whether the accused’s actions were related to each other by a common objective.
c. In this case, I have no difficulty finding that the circumstances establish a sufficient factual nexus between Mr Dafoe’s dangerous operation of a motor vehicle and his flight from peace officers in a motor vehicle. The obvious reality here is that Mr Dafoe drove dangerously to evade pursuing police officers.
d. However, as emphasized by the Supreme Court, the question of whether two offences have a legal nexus warranting application of the Kienapple rule generally requires a more nuanced analysis, requiring the court to compare the constituent elements of the respective offences, together with their societal purpose, to determine whether the offences truly constitute a single wrong or delict. In that regard, the necessary focus is not so much on a search for the presence of shared elements, as it is on identifying “the presence or absence of additional distinguishing elements”.
e. In that regard, the Supreme Court went on to identify, in particular, three factors that will defeat any claim that different offences have a sufficient legal nexus to warrant application of the Kienapple rule. In particular:
i. Where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule.
ii. Where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim.
iii. Where the offences prescribe different consequences, the Kienapple rule will not bar multiple convictions.
f. For present purposes, I think it sufficient to emphasize and rely upon the first such factor, insofar as, in my view, the s.249(1)(a) offence of dangerous driving and the s.249.1(1) offence of flight from a peace officer in a motor vehicle were enacted to address and protect two separate and distinct societal interests. In that regard:
i. Authorities have made it clear that s.249(1)(a) was intended to protect society from the risks and dangers posed to persons and property by operation of motor vehicle in a manner representing a marked departure from the manner in which a reasonable driver would drive in the same circumstances. The offence protects all persons and property in our society by encouraging necessary respect for appropriately safe operation of a motor vehicle. As members of that society, peace officers obviously are among those persons who enjoy the benefit of the protection promoted by the dangerous driving offence. However, their potential involvement in an incident of dangerous driving clearly is not essential to the evil which the offence was designed to address and discourage. Many incidents of dangerous driving occur in the absence of peace officers, and are established by the testimony of civilian witnesses, and/or the inferences to be drawn from resulting accidents. In short, the offence recognizes that society needs to be protected from those who engage in dangerous driving, regardless of whether or not such drivers are fleeing from peace officers.
ii. In contrast, the focus of the offence created by s.249.1(1) is on a different concern; i.e., the need to protect society by encouraging respect for police authority, and corresponding compliance with police indications, implicit in police pursuit of a vehicle, noted by a driver, that the police want a vehicle to stop. In that regard, I think it noteworthy that nothing in the essential elements of the offence requires proof that the driver in question operated his or her vehicle in a dangerous manner while failing to stop for police as soon as circumstances reasonably would allow. A driver committing the offence may do so by continuously failing to stop for police while carefully and prudently obeying all other rules of the road, creating no danger to any persons or property. In short, the offence targets disrespect for police authority by continued driving, not dangerous driving, once a driver knows he or she is being pursued by a peace officer.
iii. While the two offences might be committed in the course of the events with a factual nexus, (as they were in the case of Mr Dafoe’s misconduct), in my view they accordingly lack the requisite legal nexus for application of “the Kienapple rule”.
g. The particular authorities provided to me by counsel frankly do not address the relevant Kienapple issue raised by defence counsel in any reasoned way. In that regard:
i. The Kienapple rule was applied in R. v. Arlow, supra, at the request of the Crown, (presumably to the relief of the offender, who did not oppose the request), and without any substantive analysis.
ii. The rule was not applied in R. v. Knuff, supra, or R. v. Manship, supra, and that too happened without any substantive analysis, as no Kienapple issues were raised or discussed in that regard. However, to the extent both cases proceeded to appellate confirmation of outcomes clearly imposing separate sentences for dangerous operation of a motor vehicle and flight from peace officers in a motor vehicle, in my view that offers at least some support for an inference that the Court of Appeal saw nothing inappropriate with outcomes consistent with my conclusion regarding the Kienapple issue raised in this case.
[25] There accordingly will be no conditional stay entered in relation to Mr Dafoe’s s.249.1(1) offence.
[26] With the number, nature and underlying circumstances of Mr Dafoe’s convictions in mind, I accordingly turn to my current task; i.e., determination of the appropriate sentence Mr Dafoe should receive in relation to those offences and convictions.
Circumstances of the offender
[27] The personal circumstances of Mr Dafoe were outlined in detail in the presentence report mentioned above – with that information being supplemented by the submissions of counsel.
[28] I have reviewed and considered all of that information, but note that the personal circumstances of Mr Dafoe include the following:
a. He was born in October of 1965, and accordingly was 52 at the time of the misconduct that brings him before me now. He is 53 at the time of sentencing.
b. Mr Dafoe was the third of four children, all boys, born to his biological parents – who apparently had a long-standing and excellent relationship, before it ended tragically with Mr Dafoe’s mother dying from a brain aneurism when he was just five years old. However, his father remarried approximately one year later, and that too was a good relationship; one which apparently “filled a void” and resulted in two additional half-siblings for Mr Dafoe. That said, Mr Dafoe’s brother feels that Mr Dafoe has always been affected by unresolved grief issues, which have never really been addressed.
c. By all accounts, (including his own), Mr Dafoe nevertheless enjoyed a positive family upbringing, with a steadily employed father and a caring step-mother who taught him good values. Although his father believed in what the author of the presentence report described as “judiciously applied corporal punishment”, there is no suggestion that Mr Dafoe was abused as a child. Certainly, Mr Dafoe does not believe that he was.
d. Mr Dafoe’s father passed away in 2017. However, from the members of his original family, Mr Dafoe still has the support of his surviving step-mother, (who attended the sentencing hearing), and that of one of his brothers. In particular, Jeffrey Dafoe, who spoke to the author of the presentence report, apparently wishes to rebuild a relationship with Mr Dafoe despite a period of ongoing forced estrangement required by terms of probation imposed on Mr Dafoe, after Mr Dafoe committed mischief against his brother Jeffrey’s property while Jeffrey was acting as Mr Dafoe’s surety.
e. Although he has no diagnosed learning disabilities, Mr Dafoe apparently struggled with his schooling, requiring a degree of remedial help, and encountering social difficulties. He managed to complete only his grade 10 studies at high school before he was expelled for repeated fighting. He apparently received no further formal education, and instead found manual labour employment in a variety of areas, such as construction, shipping and receiving, steel fabrication, and the building of electrical panels. For the past six years or so, Mr Dafoe nevertheless has struggled to find full time work, resorting to casual and temporary “odd jobs”, as well as “handyman” assignments for property managers, such as removal of snow and ice, and other maintenance tasks. He lives in the residence of Carol Schneider, the 78-year-old mother of a friend, in exchange for Mr Dafoe providing her with help around her home, and assistance with her transportation needs. (According to his brother Jeffrey, Mr Dafoe also voluntarily provides other seniors in the Elmira area with assistance on a volunteer basis.) It seems that Mr Dafoe has relied on social assistance for support, or partial support, for many years. In that regard, he currently is unemployed, and again receiving social assistance – although his past property manager employers have expressed a willingness to hire him again.
f. His ability to find employment apparently has been hampered by his criminal record, which extends from 1982 to 2018 - albeit with intermittent gaps for as much as six to eight years, offsetting other periods where he received further convictions every year or every other year. In that regard:
i. While a number of Mr Dafoe’s convictions were for property-related offences, (such as break and enter, modest possession of stolen property, and mischief in relation to property with a value less than $5,000), there are more serious offences as well.
ii. Those more serious offences include numerous crimes of violence, including three assault convictions, as well as convictions for robbery, attempted robbery and use of a firearm – along with convictions for criminal harassment. In that regard, there are references to anger management issues, (manifesting themselves not only in crimes like assault and robbery, but in incidents of road rage and inappropriate pursuit of online dating relationships), in respect of which Mr Dafoe received some counselling – albeit apparently without much success in changing his views about such matters. A more recent attempt at counselling, in 2016, apparently was terminated by Mr Dafoe’s social worker, who felt that the sessions were simply unproductive. In particular, despite such counselling, Mr Dafoe continued to maintain a belief that he was justified in reacting aggressively towards others.
iii. Mr Dafoe also has past drug-related convictions, including a 2010 conviction for possession of a Schedule 2 substance, and a 2017 conviction for possession of a Schedule 1 substance for the purpose of trafficking.
iv. While there are some indications that Mr Dafoe apparently has managed to be compliant with some terms of probation and conditional sentence orders in the past, (including reporting, participation in directed counselling sessions, and attendance for substance abuse assessment), and that he made positive strides during past periods of probation, (e.g., making active efforts to reconnect with his children and maintain steady employment), not all of the indications are positive in that regard. As noted by the author of the presentence report, Mr Dafoe also has a history of committing further offences while on probation; an indication reinforced by convictions from 2010 and 2018 for failure to comply with the terms of his recognizance, and by the aforesaid indications of having committed mischief against the property of his brother Jeffrey, while Jeffrey had agreed to act as Mr Dafoe’s surety.
v. Past sentencing imposed on Mr Dafoe has ranged from suspended sentences, modest fines, a conditional sentence and relatively short periods of incarceration to a penitentiary sentence of four years.
g. Mr Dafoe also has struggled with substance abuse. In particular, his use of illicit drugs started with marihuana at the age of 15, but apparently progressed into experimentation with a wide variety of more serious drugs. In that regard, Mr Dafoe indicated to the author of the presentence report that he has experimented “with every drug out there”, that he was using crack cocaine from time to time, (although he found it hard to obtain), and then became addicted to crystal methamphetamine approximately 10 years ago – using it, at times, on a daily basis. Earlier pre-parole reports, from 2017, note that the Waterloo Regional Police regarded Mr Dafoe as someone with a significant history of involvement in the drug subculture of Elmira, where he currently lives. In that regard:
i. One of Mr Dafoe’s daughters, (Alexis Reist, who also attended the sentencing hearing), attributes such problems to a lack of counselling and negative peer associations, and Mr Dafoe himself apparently agrees that he has had a tendency to associate with people engaged in anti-social and addictive lifestyles.
ii. On a more positive note, Mr Dafoe reports that he has stopped using harder drugs since his arrest on the charges that bring him before me now, that he wants to continue on that path, and that he has determined to change his negative peer associations. The author of the presentence report feels that Mr Dafoe has made some progress in that regard – and Mr Dafoe also has expressed a willingness to engage in addictions counselling.
iii. However, I also think it troubling that Mr Dafoe has indicated that he will attend counselling “if ordered” to do so by the Court. In other words, despite his extended history of addiction, and what would seem to be obvious probable connections between his drug use and repeated acts of criminal behaviour, Mr Dafoe apparently still lacks insight into his condition, motivation to pursue such counselling in any event, or awareness that such counselling is advisable regardless of what the court may order. Moreover, as noted by the author of the presentence report, Mr Dafoe did attempt addictions counselling in the past, but it lasted no more than one session, and Mr Dafoe notably has not made much progress in the past towards addressing his addiction problem in a meaningful manner.
h. Although described as “currently single”, by the author of the presentence report, Mr Dafoe did have two relatively short-term intimate relationships that resulted in three children; two daughters who are approximately 25 and/or 24, and a son who is 20. He also apparently has three grandchildren, and takes an enthusiastic interest in at least one of them; i.e., the daughter of Ms Reist. Although Mr Dafoe apparently maintained regular access to his children as they were growing up, and believes he continues to have a good relationship with them, (although he demonstrates support and affection in non-verbal ways, according to one of his daughters), he also still owes substantial arrears of child support, (somewhere in the region of $11,000 to $35,000), which seems a long-standing problem, given the current ages of his children.
i. Consistent with his not-guilty pleas at trial, Mr Dafoe has expressed no remorse whatsoever for his actions.
j. It was common ground that Mr Dafoe spent 33 days in actual presentence custody, (i.e., in a formal detention facility), in relation to the offences that bring him before me now.
k. Beyond the time Mr Dafoe spent in actual presentence custody, it also was not disputed that Mr Dafoe has spent, in relation to the misconduct that brings him before me now, a total of 14.5 months during which he was subject to stringent terms of interim release, tantamount to conditional “house arrest”. That time spent under such “house arrest” admittedly was interrupted by the aforesaid incident of mischief against the property of Mr Dafoe’s brother and surety, which resulted in Mr Dafoe going back into formal custody for a time. However, it was agreed that the total time spent under such terms of “house arrest” was approximately 14.5 months in duration.
Position of the Crown
[29] Crown counsel submit that, having regard to all the circumstances, an appropriate global sentence for Mr Dafoe’s five convictions should be 30 months, and that any custodial sentence should be served in an institutional setting; i.e., rather than in the community, by way of a conditional sentence. In that regard:
a. As noted above, Crown counsel agreed that Mr Dafoe spent 33 days in actual presentence custody, in relation to the conduct underlying those five convictions. In particular, it was not disputed that, in relation to whatever custodial sentence I may impose, Mr Dafoe should receive credit for that actual presentence custody at the rate of 1.5 days for each actual day, pursuant to s.719(3.1) of the Code; i.e., that Mr Dafoe should receive, in relation to any custodial sentence I should impose, a credit of 50 days notional presentence custody.
b. While Crown counsel acknowledged that time spent by Mr Dafoe under stringent terms of interim release before sentencing could and should be considered as a mitigating factor, pursuant to authorities such as R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), it was noted and emphasized that the global sentence requested by Crown counsel had taken that consideration into account.
c. Crown counsel were focused primarily on a global sentence; i.e., without any initial indication of any particular duration of sentence to be imposed in relation to each of Mr Dafoe’s five convictions, apart from a suggestion of 30 days for the Count 5 conviction for simple possession of methamphetamine, contrary to s.4(1) of the CDSA. Having regard to the underlying circumstances, the Crown nevertheless emphasized its view, (not disputed by defence counsel), that dangerous operation of a motor vehicle was the most serious of Mr Dafoe’s convictions here, and accordingly should receive the most substantial or longest custodial sentence.
d. As noted above, Crown counsel did not dispute that the sentences imposed in relation to Mr Dafoe’s five convictions should run concurrently, as all of the convictions arise from the same general transaction or occurrence.
[30] In addition to the suggested global sentence of 30 months in formal custody, Crown counsel also sought ancillary orders that would include the following:
a. Pursuant to what was then the applicable s.259(2) of the Code, a discretionary driving prohibition, with a duration of three years; and
b. Pursuant to s.487.04, and ss.487.051(3) of the Code, a discretionary order compelling Mr Dafoe to provide the number of samples of bodily substances reasonably required for forensic DNA analysis.
[31] Crown counsel noted that consideration had been given to the possibility of requesting an ancillary order, (pursuant to ss.737.1 and 738 of the Code), requiring Mr Dafoe to make restitution in relation to the cost of repairs made to the OPP vehicles that were damaged as a result of his misconduct. In that regard:
a. It was noted again that OPP officers testifying at trial, (and Officers Blacklock and Morgan in particular), had presented repair invoices confirming the cost of repairs to their respective vehicles.
b. Crown counsel nevertheless was of the view that the imposition of any corresponding order requiring Mr Dafoe to make restitution in that regard was likely to be crushing, from a financial perspective, given the undisputed indications of his unemployment, reliance on social assistance, and substantial unpaid child support obligations.
c. Crown counsel also was of the view, (which I share), that Mr Dafoe’s latter unfulfilled obligation, (i.e., to support his children), should take precedence over any possible obligation to reimburse the state for the property damage sustained by the OPP’s vehicles.
[32] Finally, in relation to possible ancillary orders, it should be noted that Crown counsel confirmed there was no need for a forfeiture order pursuant to s.11 of the CDSA, in relation to the “meth pipe” and methamphetamine discovered and seized in this case, as those items already have been destroyed.
Position of the defence
[33] Defence counsel submitted that, having regard to all the circumstances, an appropriate disposition would be imposition of a global two-year sentence to be served in the community, (i.e., by way of a conditional sentence, pursuant to s.742.1 of the Code), followed by a two-year period of probation.
[34] In the alternative, (i.e., if a conditional sentence was found to be inappropriate in the circumstances), defence counsel submitted that the court should impose a global sentence of 20 months, (to be served in an institutional setting), followed by the same suggested two-year period of probation.
[35] In that regard, defence counsel agreed that a custodial sentence of 30 days for Mr Dafoe’s s.4(1) CDSA conviction, to be served concurrently with his other four conviction sentences, would be appropriate.
[36] In relation to any custodial sentence imposed, defence counsel emphasized the credit for presentence custody Mr Dafoe should receive, pursuant to s.719(3.1) of the Code, and that the time spent by Mr Dafoe under stringent conditions of interim pretrial release should be treated as a mitigating consideration.
[37] As for ancillary orders:
a. Defence counsel did not dispute that imposition of a discretionary driving prohibition would be appropriate, in the circumstances, but suggested that it have a duration of two years rather than three.
b. In relation to Crown counsel’s request for imposition of a discretionary DNA order, defence counsel indicated that Mr Dafoe was ready and willing to comply with such an order, but questioned whether it was really necessary, insofar as Mr Dafoe was thought to have already provided such DNA samples in relation to earlier convictions.
Sentencing objectives
[38] As emphasized by s.718 of the Code, the fundamental purpose of sentencing is to contribute 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. Denunciation of unlawful conduct;
b. Deterring the offender and others from committing offences;
c. Separation of offenders from society, where necessary;
d. Assisting in the rehabilitation of offenders;
e. Providing reparations for any harm done to victims or the community; and
f. Promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.
[39] Pursuant to s.718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[40] Pursuant s.718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account that:
a. Sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender;
b. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
c. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh – also known as the “totality” principle;
d. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
e. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm one to victims or to the community should be considered for all offenders.
[41] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Dafoe, in relation to the convictions now before me.
[42] I nevertheless also am mindful of the guidance offered by authorities, particularly in relation to situations involving dangerous driving and flight in vehicles from pursuing police officers.
[43] They emphasize that, while concern for an offender’s potential rehabilitation obviously must never be forgotten, denunciation and general deterrence are the sentencing principles of paramount importance in relation to such matters. See, for example: R. v. Knuff, supra, at paragraph 22 of the decision at first instance, upheld by our Court of Appeal; R. v. Arlow, supra, at paragraph 48; and R. v. Manship, supra, at paragraph 24 of the decision at first instance, and paragraph 15 of the Court of Appeal’s decision upholding the sentence imposed at first instance.
Conditional Sentences
[44] Legislation and authorities also indicate whether and how imposition of a “conditional sentence”, permitting Mr Dafoe to serve his sentence “in the community” rather than a penal institution, might be consistent with the fundamental purpose and principles of sentencing.
[45] In that regard, the possibility of a “conditional sentence” is raised by s.742.1 of the Code, which generally provides that, if a person is convicted of an offence, and the court imposes a sentence of less than 2 years, the court may, for the purpose of supervising the offender’s behavior in the community, order that the offender serve the sentence in the community, subject to prescribed conditions, if:
i. in accordance with the requirements of s.742.1(a), “the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing”; and
ii. the offence does not fall within one of the excluding provisions set forth in ss.742.1(b) through (f).
[46] In this particular case, it was not suggested that the latter provisions have any application, so as to preclude the availability of a conditional sentence. In particular, at all material times, the offences in question were not punishable by a minimum term of imprisonment. Nor do any of them fall within the list of specifically indicated offences in respect of which a condition sentence is not available.
[47] A conditional sentence therefore is a possibility in this case, provided the remaining demands of s.742.1(a) of the Code are satisfied.
[48] The principles to be applied in that regard have been considered in a number of Supreme Court of Canada decisions, such as the leading case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, as well as R. v. R.N.S, 2000 SCC 7, [2000] 1 S.C.R. 149, and include the following:
A conditional sentence is intended to address both punitive and rehabilitative objectives, and therefore generally should include punitive conditions that restrict an offender’s liberty. Conditions such as house arrest or strict curfew should be the norm.
Concern for the safety of the community is merely one of the prerequisites for imposing a conditional sentence and is not the primary consideration.
A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances.
There is also no presumption in favour of a conditional sentence if the perquisites have been satisfied. However, serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites are satisfied.
A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
A conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed, and judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration – although there may be circumstances in which the need for deterrence will warrant incarceration.
When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present.
Neither party has the onus of establishing that the offender should or should not receive a conditional sentence.
In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence generally should be imposed, even if it would be longer than the appropriate sentence of incarceration. There nevertheless may be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence.
[49] Bearing in mind the general sentencing objectives outlined above, I turn next to a consideration of possible aggravating and mitigating factors.
Aggravating factors
[50] Certainly, Mr Dafoe’s ongoing assertion of innocence in relation to these convictions is not an aggravating circumstance, although I note that it does leave the court without a basis for inferring that Mr Dafoe has insight into his behavior, and the absence of insight may be relevant to the need for specific deterrence and/or Mr Dafoe’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57.
[51] In my view, this case nevertheless does present a number of aggravating circumstances, which include the following:
a. Mr Dafoe is neither youthful nor a first-time offender. To the contrary, as noted above, he is a mature man in his early fifties with an extended criminal record – including past convictions for related behaviours – which is clearly an aggravating consideration. In that regard:
i. While the convictions in this proceeding involve the first Mr Dafoe has received for driving-related misconduct, his past record, and offence-related counselling, highlight aggressive tendencies that, in my view, were once again evident in this case. For example, that aggression was evident in the manner in which he overtook and approached other vehicles, his admitted anger at the decision of police to deploy spike belts, and his decision to drive towards and into police vehicles during the pursuit and after his vehicle initially had been brought to a stop. Past sentences of this court, and mandated counselling sessions, apparently have done little to make Mr Dafoe change his attitudes, beliefs and behaviours in terms of reacting inappropriately with aggression.
ii. This also clearly is not the first time Mr Dafoe has wilfully damaged the property of others.
iii. Nor is this the first time Mr Dafoe has been involved with illicit narcotics. In that regard:
Mr Dafoe’s prior convictions for possessing a Schedule 2 substance, and trafficking in a Schedule 1 substance, are clearly aggravating.
Although the 1.1 grams of methamphetamine found in his possession in this occasion are relatively modest, and consistent with personal use, the serious nature of that highly addictive Schedule 1 substance, (the prevalence and deleterious effects of which are particularly pernicious here in Perth County), is aggravating.
The indications that Mr Dafoe was using methamphetamine shortly before or while he was driving, and/or had that substance and the means to use it in his possession and readily available while driving, is aggravating.
Most troubling, I think, is the clear and ongoing failure by Mr Dafoe to properly recognize and meaningful address his longstanding addiction to methamphetamine.
iv. In my view, all of these considerations heighten the need for specific deterrence in this case, regardless of the additional aggravating factors highlighting the need for appropriate general deterrence and denunciation.
b. In that regard, apart from the fact that Mr Dafoe thankfully did not injure police officers or other civilians in this case, the police pursuit in this case was of a duration, distance and nature that seems to easily rival and in many ways exceed those addressed in the authorities to which I have been referred. Without limiting the generality of the foregoing:
i. The speeds involved were clearly extreme, repeatedly going as high as 170kph or more.
ii. That speed was accompanied by repeated acts of aggressive overtaking of vehicles, travelling for extended periods of time in the lanes of oncoming traffic with no effort to yield the right of way to such oncoming traffic, speeding through a red traffic light at no less than 80kph without stopping, and driving towards and into pursuing police vehicles.
iii. Mr Dafoe persisted in such dangerous driving and attempts to evade police, although the remarkable number of police vehicles chasing and surrounding him was clearly mounting, and his eventual apprehension was a foregone conclusion.
iv. Mr Dafoe also persisted in travelling at such dangerous speeds, and engaging in such already unsafe manoeuvres, while travelling on the bare rims of his vehicle’s wheels, after the rubber on his vehicle’s tires had been destroyed by the two spike belts deployed by police. In doing so, his conduct became all the more dangerous because of his inherently reduced ability to steer his vehicle properly.
v. Along the very extended 41km route of the police pursuit, Mr Dafoe repeatedly exposed members of the public and the police to obvious lethal dangers. The fact that there were no injuries to those in passed vehicles, oncoming vehicles, and/or vehicles crossing or intending to cross the roads travelled by Mr Dafoe, no injuries to the officers who exited the safety of their vehicles to deploy spike belts as Mr Dafoe was approaching at incredible speeds, and no injuries to any pedestrians reasonably walking the streets of the various communities through which the high-speed chase was passing, on a sunny and clear Saturday afternoon, is something akin to a miracle – albeit one due, in very large measure, to the skill and initial restraint exhibited by the officers who were pursuing Mr Dafoe, the officers who rushed ahead of Mr Dafoe to warn and protect others, and the evasive driving of other civilians. Certainly, Mr Dafoe did nothing to minimize the associated dangers.
vi. Even after his vehicle had been brought to an initial stop, (by officers who had exposed themselves to considerable risk in using their vehicles to execute a successful “rolling block” manoeuvre), Mr Dafoe then chose to expose those officers to further dangers, after they had left the safety of their vehicles to approach his vehicle on foot, by trying to accelerate again and push through the police vehicle blocking his path.
Mitigating factors
[52] In this case, there was no guilty plea, or other expression of remorse from Mr Dafoe, so I am unable to give Mr Dafoe any credit in that regard, in terms of a corresponding reduction of sentence.
[53] Nor, as I say, is he a youthful or first-time offender, in respect of whom a measure of sentencing restraint might be warranted.
[54] I also am inclined to agree with the submission of Crown counsel that there are few mitigating considerations in this case. However, having regard to all the evidence before me, I think there are some, including the following:
a. There are indications, (e.g., in his noted provision of volunteer assistance to seniors in Elmira, and enthusiasm for his grandchildren), that Mr Dafoe is capable of prosocial behaviour.
b. Mr Dafoe also still has a network of personal support, which usually bodes well for prospects of rehabilitation. In particular, as noted above, he retains the active support of his step-mother and daughter Ms Reist, who attended these proceedings along with another woman identified as Mr Dafoe’s girlfriend – although the relationship appears to be relatively recent in nature, as the presentence report, submitted less than three weeks ago, described Mr Dafoe as “currently single”. Mr Dafoe also apparently maintains contact with his other children and grandchildren. Moreover, he still enjoys the support of his currently estranged brother, as well as that of Ms Schneider, (who has provided him with accommodation), and the property managers who have employed him in the past. Having said all that, it seems that none of that support network has been sufficient to keep Mr Dafoe moving forward in positive directions. To the contrary, both he and his daughter note ongoing problems with negative peer associations that have reinforced his drug addiction and related behaviours.
c. Finally, by way of mitigating considerations, there is the matter of the 14.5 months spent by Mr Dafoe on stringent bail conditions, (including conditional “house arrest”), while awaiting trial in relation to this matter. In that regard:
i. It was not disputed, and I agree, that this clearly is a relevant mitigating factor, as confirmed by authorities such as R. v. Downes, supra. I therefore have considered that factor, in determining the length of an appropriate sentence for Mr Dafoe.
ii. Unlike statutory provisions relating to actual pretrial custody, such as s.719(3.1) of the Code, there nevertheless is no fixed formula for determining the precise impact of that mitigating consideration on sentence. It is simply a factor, like other mitigating factors, to be taken into consideration with the myriad of other mitigating and aggravating circumstances that may impact on the sentence to be imposed in any given case.
iii. In the case of Mr Dafoe, I nevertheless have considered particular matters such as the following:
The duration of those pretrial bail conditions, which lasted a total of 14.5 months. While those terms of judicial interim release were interrupted for a time because of Mr Dafoe’s misconduct, (i.e., with Mr Dafoe going back into formal custody for a time owing to his breach of conditions and apparent commission of a mischief offence against his surety brother), Mr Dafoe has been punished separately for that misconduct, and it obviously would not be appropriate to effectively punish him for that again now. The reality is that he did spend a total of 14.5 months under bail conditions while awaiting trial in relation to the misconduct that brings him before me now.
While I did not receive a great deal of information about the stringency of the relevant bail conditions to which Mr Dafoe was subject, there appeared to be no dispute that they were tantamount to “house arrest” – although, as noted by our Court of Appeal in R. v. Downes, supra, even the most stringent bail conditions usually allow an offender the opportunity to work or attend school, attend medical appointments, conduct religious worship and address other personal needs. In this case, there were indications that Mr Dafoe may not have been permitted to work for his property manager employers, and there apparently was a challenging instance wherein Mr Dafoe was unable to attend the hospital where his son had been taken in the wake of a serious motorcycle accident. However, there were also indications that Mr Dafoe has been permitted to leave the home in the company of his surety or sureties. (That freedom was noted by defence counsel in his submissions noting that Mr Dafoe apparently has been driving, without incident, while on bail. That suggests that the restrictions on Mr Dafoe’s liberty did not involve strict confinement to his residence.)
Further analysis
[55] In addition to the matters outlined above, I also have considered the precedents referred to by counsel, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[56] However, the reality, of course, is that no two cases are exactly alike. As emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:
- Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[57] As noted above, I was referred to the first instance and appellate decisions in R. v. Knuff, supra. In that regard:
a. The offender in that case apparently entered a vehicle and fled the scene of a break-in, (in which he was not the main participant), with the police in pursuit.
b. There is no indication of how long the relevant pursuit lasted, the distance covered before it came to an end, the speeds reached during the pursuit, or precisely how many police officers and vehicles may have been involved. However, it seems the incident took place in the middle of a May afternoon, on a Thursday. It started in a residential area, (where the offender drove up a driveway and across a lawn), before entering an arterial road where it ignored a red light and collided with a police cruiser. With one wheel of his vehicle “damaged and smoking”, the offender then proceeded along two arterial roads towards a second residential subdivision, with police in pursuit and causing other vehicles encountered along the way to stop and/or take other evasive action. In the second residential area, the offender apparently drove across another lawn, before coming to a stop after a collision with a second police vehicle and a private vehicle operated by another citizen. The actions of the offender caused approximately $41,000 in damage to the two police vehicles, (one of which was considered a “write off”), and approximately $5,500 in damage to the property of an insured homeowner. Despite the property damage occasioned by the offender’s conduct, it seems no one was injured.
c. In the result, the offender received convictions for break and enter, possession of stolen property, dangerous operation of a motor vehicle, and flight from the police in a motor vehicle.
d. In relation to the latter two convictions, the court imposed a concurrent sentence of 27 months.
e. By way of comparison and contrast with the situation before me:
i. There were some aggravating considerations present in that case which are not present here, or present to the same extent. For example, the property damage inflicted by Mr Dafoe during his attempts to evade police pales in comparison to that inflicted by Mr Knuff. Moreover, at least two civilians, (the citizen driver with whom Mr Knuff collided and the homeowner whose property he damaged), were directly affected by the pursuit.
ii. However, it seems to me that the circumstances before me are more serious in many respects. Without limiting the generality of the foregoing:
The relevant police pursuit in Mr Knuff’s case was limited to lawns, driveways, residential areas and arterial roads, and apparently never extended to open highways. While no speeds are indicated, I think it likely, in the circumstances, that they failed to approach anything like those involved in Mr Dafoe’s efforts to evade police. More generally, it seems to me that Mr Dafoe’s dangerous driving and efforts to evade police were more serious.
Mr Knuff was a relatively youthful offender, (i.e., 25 years old), which Mr Dafoe is not.
While Mr Knuff had a criminal record, it was not “long or continuous”, and was limited to property crimes, (i.e., break and enter and possession of stolen property), one incident of failure to stop after an accident, and failures to attend and/or comply with probation. In my view, the extent and nature of that record pale in comparison with those of Mr Dafoe’s record.
The presentence report for Mr Knuff was positive and, along with letters tendered by Mr Knuff’s mother, spouse and Mr Knuff himself, and counsel submissions, confirmed that the relevant incident was a marked departure and “brief interlude” from the positive lifestyle Mr Knuff had adopted in the preceding five years – with a firm expectation that such behaviour would not repeated in the future. There are no comparable indications for Mr Dafoe.
Mr Knuff expressed remorse for the choices he made, and regret for how his actions had affected the community. Mr Dafoe has expressed no remorse whatsoever for his conduct or its consequences.
iii. Like Mr Dafoe, Mr Knuff was subject to stringent bail terms, including house arrest, (albeit with an exception like that apparently enjoyed by Mr Dafoe, allowing the offender to leave his residence in the company of his surety), all of which the court regarded as “a significant deprivation of liberty”. Although Mr Knuff’s terms also permitted his completion of work and education, (whereas Mr Dafoe’s terms of release apparently have prevented him from working for his former property manager employers), it seems that Mr Knuff also was on such stringent bail terms for a longer period than Mr Dafoe; i.e., with more than 18 months passing between the time of his release on bail and the imposition of sentence.
f. Having regard to all such considerations, it seems to me that Mr Dafoe’s circumstances warrant a more serious sentence than the 27 months and 3 year driving prohibition imposed on Mr Knuff, (and upheld by our Court of Appeal), for his dangerous operation of a motor vehicle and flight from police.
[58] As previously noted, I also was referred, (by Crown counsel and by defence counsel), to this court’s decision in R. v. Arlow, supra. In that regard:
a. The offender in that case initially was involved in a collision with another vehicle and a store, on an army base, in respect of which he was found not criminally responsible. However, Mr Arlow then drove away from the scene of the collision, leading to a pursuit on the army base by military police, followed by further pursuit by officers from other police agencies after he drove off the army base.
b. There is no indication in the reported decision of precisely how long the entire pursuit lasted, but it covered a distance of no more than two kilometers, and took place on “municipal highways and rural roads” in early February, when the shoulders of the roads were “slushy”. Although “other vehicles were around”, there is no suggestion that the pursuit passed through any developed or residential areas.
c. Further provided details concerning the offender’s driving and efforts to evade police included the following:
i. While still driving on the army base, the offender was pursued by a single officer in a police vehicle, with lights activated and sirens flashing. The offender was able to evade that officer by traveling at a higher rate of speed, as the officer was not authorized to conduct a high-speed pursuit on base property.
ii. Arriving at the exit gate of the base, (without any police in immediate pursuit), the offender drove around and past a line of waiting vehicles stopped there by the military police, and barged through the gate barriers causing minor property damage.
iii. Members of the OPP were notified, and pursuit of the offender after he left the base initially was continued by two officers in plain clothes, who called for the assistance of a marked police vehicle.
iv. When that marked police vehicle arrived and joined in the pursuit, (with its lights and siren activated), the offender’s vehicle was followed along a County Road with a 90kph speed limit, during which time it apparently stayed in traffic, without speeding or passing any other vehicles.
v. At some point along that County Road, the offender decided to pull to a stop on the road’s shoulder, allowing the pursuing officers to stop as well, approach the offender and his vehicle on foot, and ask the offender to lower his driver’s window.
vi. The offender nevertheless then refused to lower his driver’s window or speak to the officers, and instead decided to drive off again. In doing so, he drove over and broke the foot of an officer who had approached the passenger side of the vehicle – although the court found that the offender had no specific intent to cause that or any other injury to the officer.
vii. When the pursuit resumed along the same County Road, the offender successfully drove around a spike belt deployed by an officer who had deployed the belt in advance and then taken up a position of safety.
viii. After the offender had turned onto another road, another police vehicle joined in the pursuit, and the police made unsuccessful attempts to overtake the offender, during which the offender occasionally was driving in the wrong lane and bumping into the two police vehicles, such that they were at risk of being run off the road. At times, the offender also accelerated to speeds exceeding 140kph in an 80kph zone.
ix. However, one of the officers succeeded in passing the offender, and the pursuit then became a “low speed chase”, with the officers succeeding in bringing the offender and his vehicle to a stop with a “rolling block” manoeuvre at the top of a hill.
d. After the offender’s vehicle was brought to a stop, he resisted being removed from the vehicle, and was taken into custody only after a struggle with the arresting officer.
e. The following day, while the offender was being held in custody and awaiting a bail hearing, he deliberately interfered with police processing of those awaiting hearings by pretending to be a prisoner whose name was called before his, resulting in his mistakenly being brought into court.
f. In the result, the offender was found guilty of dangerous driving causing bodily harm, flight from police in a motor vehicle causing bodily harm, (in respect of which a conditional stay was entered), resisting arrest, and obstructing a peace officer.
g. In relation to the conviction for dangerous driving causing bodily harm, the court imposed a custodial sentence of 20 months.
h. By way of comparison and contrast with the situation before me:
i. There were some aggravating considerations present in that case which are not present here. In particular, by definition, and having regard to the injury inflicted on the officer by the offender’s driving, the situation involved a more serious offence.
ii. However, it otherwise seems to me that the circumstances before me once again are more serious in many respects. Without limiting the generality of the foregoing:
The relevant police pursuit in Mr Arlow’s case covered a much shorter distance, and was limited to municipal highways and rural roads. While there were “other vehicles around”, there is no suggestion that the pursuit of Mr Arlow passed, (as the pursuit of Mr Dafoe did), through the downtown areas of developed municipalities, so as to pose correspondingly increased dangers.
In many respects, the dangerous aspects of Mr Arlow’s driving were less egregious than those of Mr Dafoe. For example:
a. During the police pursuit of Mr Arlow, he apparently drove for sustained periods without passing other vehicles, without speeding, and/or at a low rate of speed. In contrast, Mr Dafoe consistently travelled well above posted speed limits, (except when slowing as necessary to make a right-angled turn, and after deployment of the first spike belt), and aggressively passed numerous other vehicles.
b. In contrast to Mr Dafoe, there is no suggestion that Mr Arlow failed to stop as required at any red traffic light or similar signal.
c. While Mr Arlow occasionally travelled in the wrong lane, in an effort to prevent police from passing his vehicle, Mr Dafoe travelled in the wrong lane for prolonged periods of time, repeatedly forcing oncoming traffic to take evasive action.
d. As Mr Arlow successfully drove around the only spike belt deployed in his case, he never lost the rubber on his vehicle’s wheels, or the corresponding ability to steer with precision. Mr Dafoe pressed on at high speed, even after his tires had been destroyed by passing over two spike belts, when his ability to steer was severely compromised by driving on his vehicle’s bare steel rims.
e. While Mr Arlow occasionally “bumped” into the police vehicles trying to overtake him and bring him to a stop, there was no suggestion that he deliberately tried to drive into those vehicles, or that they sustained any damage, (let alone serious damage), by his doing so. In the case of Mr Dafoe, he repeatedly drove towards and into the police vehicles trying to stop him, and deliberately rammed into the rear of the police vehicle blocking his path after he initially had been brought to a stop.
iii. At the time of his misconduct, Mr Arlow was suffering from a delusional disorder, (confirmed by professional diagnosis following a court-ordered psychiatric assessment), which was sufficient to negate his responsibility for the collision that occurred immediately before the relevant police pursuit. There is no similar significant mitigating consideration in relation to Mr Dafoe.
iv. While not youthful, Mr Arlow was significantly younger than Mr Dafoe, (33 at the time of his dangerous driving), and although he had a prior criminal record, it was minimal and isolated. In particular, he had only two prior convictions, (for an assault and failure to comply with the terms of a recognizance), in respect of which he had received a short sentence followed by 12 months of uneventful probation. He otherwise had not any involvement whatsoever with the criminal justice system.
v. Like Mr Dafoe, Mr Arlow was subject to stringent bail terms before trial and sentencing, which was a mitigating consideration. However, the conditions imposed on Mr Arlow were much more stringent; i.e., compelling him to remain under strict house arrest in his father’s residence, with permission to leave the home only for the purpose of medical appointments. He did so without incident. Mr Arlow also was obliged to abide by such conditions for a much longer period than Mr Dafoe; i.e., for three years, rather than 14 months. In addition, Mr Arlow had spent 60 days at a medical facility, undergoing the court ordered psychiatric assessment.
i. Having regard to all such considerations, and bearing in mind that strict comparisons are difficult because Mr Arlow was convicted of a more serious driving offence, it still seems to me that Mr Dafoe’s circumstances warrant a more serious sentence, in relation to his driving misconduct, than the 20-month custodial sentence, and three years of probation, imposed on Mr Arlow.
j. I note that, while Mr Arlow also was subjected to a driving prohibition for 10 years, that more extended period was permissible and appropriate only because Mr Arlow’s driving offence had included the infliction of serious bodily harm; considerations which fortunately do not apply to the case before me.
[59] Finally, as noted above, I was referred by counsel to the first instance and appellate decision in R. v. Manship, supra. In that regard:
a. The offender in that case, (breaching several conditions imposed after being charged with an earlier assault), consumed alcohol and attended at the residence of his girlfriend, where he assaulted her and two of her female friends. The police were notified, began searching for the offender, and observed the offender driving away from the scene of the altercation. The offender refused police efforts to have him pull over, and a chase ensued involving multiple police vehicles.
b. There is no indication in the reported trial or appellate decisions of precisely how long the entire pursuit lasted, the distance it covered, or the nature of the roads or surrounding areas through which it proceeded - apart from the fact that it began on a “highway” and ended somewhere within the town of Smith Falls.
c. It seems the pursuit occurred in the “early morning” hours, and apart from a reference to the defendant’s driving having “the potential for endangering other drivers and pedestrians”, there are no specifics provided as to whether or how persons or vehicles other than those associated with the police actually may have been affected.
d. Other provided information concerning the offender’s driving and efforts to evade police includes general references to speeding, crossing both lanes, colliding with the shoulder, failing to obey traffic signals, ignoring a roadblock, and ramming various police vehicles. (At least three police vehicles suffered serious damage, totalling approximately $20,000.) The pursuit ended with the offender, after running over a spike belt, ramming a particular police vehicle twice.
e. In the result, the offender pled guilty to breaching numerous conditions of his interim release, was found guilty of assaults on his girlfriend and her friends, and pled guilty to multiple driving offences, including dangerous operation of a motor vehicle, flight from police officers in a motor vehicle, operating a vehicle with excess blood alcohol, and assaulting a police officer with a weapon; i.e., a motor vehicle.
f. In relation to the conviction for dangerous operation of a motor vehicle, the offender received a custodial sentence of 10 months. In relation to the conviction for flight from police officers in a motor vehicle, the offender received a custodial sentence of six months. Ancillary orders imposed by the court included concurrent three year driving suspensions in relation to each of the dangerous driving, flight from police officers in a motor vehicle, and operation of a motor vehicle with excess blood alcohol.
g. All aspects of the sentence imposed at first instance were upheld by the Court of Appeal.
h. By way of comparison and contrast with the situation before me:
i. There clearly are many points of similarity between the offensive driving behaviours exhibited by Mr Manship and Mr Dafoe; e.g., in terms of their speeding, failing to stay in proper lanes, disobeying traffic signals, running over spike belts, ramming and damaging police vehicles, and endangering the lives of police officers and others. However, comparisons as to the relative severity of each form of driving misconduct nevertheless are difficult without knowing the specifics of Mr Manship’s transgressions – except to say that he clearly managed to inflict more property damage to police vehicles than Mr Dafoe.
ii. However, there clearly were a number of very significant mitigating factors present in Mr Manship’s case, (lacking in the case before me), which militated in favour of Mr Manship receiving a more lenient sentence for his driving offences. Without limiting the generality of the foregoing:
Unlike Mr Dafoe, Mr Manship entered guilty pleas in relation to his dangerous driving and flight from police offences. Beyond the contrition and remorse implicit in such guilty pleas, Mr Manship also expressly indicated remorse for his conduct, accepted responsibility for his actions, and apologized for those actions. Mr Dafoe demonstrates no similar awareness and insight into his conduct, or any indication of remorse or regret.
Unlike Mr Dafoe, (who has a lengthy and varied criminal record), Mr Manship was a first-time offender for the purposes of sentencing, with no prior criminal record. All collaterals contacted by Mr Manship’s probation supervisor expressed support for Mr Manship, and emphasized that the offences were out of character. Our courts repeatedly have emphasized that restraint is called for in sentencing such first-time offenders. Mr Dafoe clearly is not entitled to leniency based on such considerations.
Unlike Mr Dafoe, Mr Manship voluntarily had pursued and completed numerous formal rehabilitative programs prior to sentencing, including programs relating to substance abuse, anger management and parenting. Prior to sentencing, he also voluntarily had participated in employment and additional volunteer work through the John Howard Society and local Mission Society, both of which confirmed that Mr Manship was working hard at serious efforts to better himself. His presentence report was very positive. In short, in contrast to Mr Dafoe, Mr Manship clearly had demonstrated, by the time of sentencing, significant progress and potential as far as rehabilitation was concerned, and a willingness to change his behaviours.
Assessment
[60] With all of the above considerations in mind, I turn to assessment of an appropriate sentencing disposition, as far as Mr Dafoe is concerned.
[61] In my view, imposition of a conditional sentence in relation to Mr Dafoe’s offences would not be appropriate. In particular:
a. In my view, even when one takes into account the mitigating considerations I have described, (which are relatively few in number), and does not ignore concerns for rehabilitation, a sentence of two years or less would not sufficiently address the sentencing principles of denunciation and deterrence which are paramount here. In particular, having regard to the facts and aggravating circumstances I have outlined, and the precedents to which I have been directed, Mr Dafoe’s driving misconduct and flight from police in this instance were extraordinarily egregious. It seems to me that they are at the extreme end of the offences with which he was charged. Indeed, short of increased property damage, and/or the infliction of bodily harm or death, (would take the case into the realm of different and more egregious offences), I think one would be hard pressed to find examples of worse driving or more determined flight from police in a vehicle. Mr Dafoe’s driving misconduct, and the life-threatening dangers to which he exposed the pursuing police officers, and all other drivers, vehicle occupants and pedestrians along his 41km path of potential death and destruction, accordingly need to be condemned and deterred in the strongest possible terms.
b. I accordingly am not inclined to impose a sentence of less than two years, which negates the availability of a conditional sentence, pursuant to s.742.1 of the Code.
c. For related reasons, I do not think service of Mr Dafoe’s sentence in the community would be consistent with the fundamental purpose and principles of sentencing in any event, particularly insofar as a conditional sentence, while capable of expressing denunciation and deterrence, would not do so sufficiently in this case for the reasons I have mentioned, regardless of how restrictive and therefore punitive the terms of “house arrest” might be.
d. I also frankly have concerns for the safety of the community, if Mr Dafoe was permitted to serve his sentence in that community. For the reasons I have outlined, prior sentences have done little to deter Mr Dafoe from further misconduct, or encourage Mr Dafoe to take meaningful steps to address and change his aggressive behaviour and longstanding drug addiction in any sustained and meaningful way. To state the obvious, the clear and immediate presence of multiple police vehicles with lights flashing and sirens sounding was not sufficient to bring about a voluntary cessation of further misbehaviour in the underlying circumstances of this case, and Mr Dafoe was not able to refrain from further misconduct vis-à-vis his own supportive brother and surety while awaiting trial in this case. In my view, there frankly is little to support a hope that Mr Dafoe’s service of a sentence in the community would be free of further misconduct.
e. For similar and related reasons, I think Mr Dafoe needs to be separated from society for a time, which will include forced separation from his ongoing negative peer associations in Elmira, (from whom he seems incapable of voluntary separation), and hopefully a forced period of sustained abstinence from illicit substances. At the same time, one hopes – although this is beyond my control – that Mr Dafoe will be placed in a correctional facility where he has access to programs addressing substance abuse and aggressive behaviour. In other words, I think service of Mr Dafoe’s sentence in an institutional setting is likely to be more conducive to his rehabilitation, as he has made little progress towards rehabilitation in the community.
[62] As for what Mr Dafoe’s global sentence should be, it has been said many times, and in many ways, that sentencing is more of an art than a science.
[63] In this case, having regard to the circumstances of the offence, the circumstances of Mr Dafoe, the paramount principles of denunciation and deterrence, (while not ignoring concerns for rehabilitation), the aggravating and mitigating considerations I have outlined, and the precedents to which I have been directed, I independently think imposition of a 30-month global custodial sentence, such as that requested by the Crown, is appropriate in the circumstances.
[64] Against that sentence, Mr Dafoe nevertheless shall receive credit for actual time in presentence custody, in the manner noted above, and which I will repeat during formal imposition of sentence.
Further orders
[65] As for the further orders requested by the Crown:
a. In my view, imposition of a driving prohibition pursuant to s.259(2) of the Code is entirely appropriate, and the duration of that prohibition should be for three years. Certainly, I see no reason why the prohibition imposed in relation to Mr Dafoe for his driving misconduct should be less than the three-year prohibitions on Mr Knuff and Mr Manship, both of which were upheld by our Court of Appeal.
b. Having regard to the nature of the offence, the circumstances of its commission, and the minimal impact it will have on Mr Dafoe’s privacy and security, I also think it appropriate to make an order pursuant to ss.487.04 and 487.051(3) of the Code, requiring Mr Dafoe to provide samples of bodily substances reasonably required for DNA analysis. While Mr Dafoe may have been through such an exercise before, there was no confirmation of that in the hearing before me, and I think any and all further measures that might encourage Mr Dafoe to avoid future misconduct should be taken.
c. Crown counsel did not press for the making of an order pursuant to ss.737.1 and 738, requiring Mr Dafoe to make restitution in relation to the property damage sustained by the two OPP vehicles as a result of his misconduct, and I independently decline to make such an order in the particular circumstances of this case. The information before me indicates that Mr Dafoe has no realistic means of satisfying such an order, in addition to his already substantial child support arrears obligations, (which in my view should take priority in any event), and that imposition of such an order directing restitution would be crushing and almost certainly send Mr Dafoe needlessly down a path of further order non-compliance.
Formal imposition of sentence
[66] Mr Dafoe, at this point, I will ask you to please stand.
[67] For the reasons I have outlined, I am sentencing you to a total period of imprisonment of 30 months, made up of the following custodial sentences in relation to the following convictions:
in relation to the Count 1 conviction for dangerous operation of a motor vehicle, a sentence of 30 months, (to be served concurrently with the sentences in relation to the convictions on Counts 2, 3, 4 and 5);
in relation to the Count 2 conviction for flight from a police officer in a motor vehicle, a sentence of 27 months, (to be served concurrently with the sentences in relation to the convictions on Counts 1, 3, 4 and 5);
in relation to the Count 3 conviction for mischief in relation to property having a value exceeding $5,000, a sentence of 2 months, (to be served concurrently with the sentences in relation to the convictions on Counts 1,2, 4 and 5);
in relation to the Count 4 conviction for obstruction of a peace officer by resisting arrest, a sentence of 2 months, (to be served concurrently with the sentences in relation to the convictions on Counts 1, 2, 3 and 5); and
in relation to the Count 5 conviction for possession of methamphetamine, a sentence of 1 month, (to be served concurrently with the sentences in relation to Counts 1, 2, 3 and 4).
[68] However, against that total sentence of 30 months, you shall receive credit for time spent in actual presentence custody to date, in relation to these offences, on the basis of 1.5 days for each actual day spent in custody.
[69] In particular, for your 33 days in actual presentence custody, you shall receive credit for 50 days spent in presentence custody, to be applied against your total sentence. That will require you to spend a further 28 months and 10 days in custody.
[70] There will, as well, be further ancillary sentencing orders whereby:
a. pursuant to s.259(2) of the Code, you will be subject to a driving prohibition for a period of 3 years; and
b. pursuant to ss.487.04 and 487.051(3) of the Code, you will be required to provide samples of bodily substances reasonably required for DNA analysis
[71] Please be seated while I endorse the indictment accordingly.
“Justice I.F. Leach”
Justice I.F. Leach
Released: September 16, 2019 (Orally)
COURT FILE NO.: 18-675
DATE: 2019/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD DAFOE
REASONS FOR SENTENCE
Justice I.F. Leach
Released: September 16, 2019 (Orally)