R. v. Schmitt, 2011 ONCJ 546

COURT FILE No.: 10 8261 Citation: R. v. Schmitt , 2011 ONCJ 546 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PETER SCHMITT Justice Lloyd Dean Submissions made as to sentence on July 27, 2011 WALTER COSTA ................................................................................................ for the Crown ANDREW BRADIE .......................................................................................... for the Accused JUDGMENT Introduction 1 On July 27, 2011, the offender pleaded guilty to fail to stop at scene of accident contrary to s. 252 (1.3) (

b) of the Criminal Code . The issues are whether the offence qualifies for consideration of a conditional sentence order and if so, should the offender be allowed to serve the term of imprisonment in the community pursuant to a conditional sentence order or be incarcerated. Facts 2 Between 8:30 and 9:00 PM on August 31, 2010, the offender, age 18, was driving his motor vehicle westbound on County Road 34 in the Municipality of Leamington. County Road 34 is a two lane highway with a posted speed limit of 80 km/h. It is the primary road used by persons travelling between Leamington and Wheatley.

The victim, Kyle Peters, age 15, was riding his bicycle westbound on the same stretch of road, near the edge of the roadway on the travel portion of the roadway. It was a warm and clear night. Visibility was good. The victim was a short distance from his home when he was struck by the vehicle driven by the offender. The offender, although realizing he had struck someone did not stop and remain at the scene. The police investigation revealed the sun had already set and it was dark at the time of the accident. There was no artificial lighting of the roadway where the collision took place.

The bicycle had no rear reflectors or lighting. It did have two reflectors on the front of the bicycle. The victim was not wearing a helmet. The accident was witnessed to varying degrees by two other motorists. One of the motorists who had stopped located the victim alive on the gravel portion of the roadway but barely breathing. She observed several injuries and called 9-1-1. Ambulance and police arrived and the victim was taken to a hospital. He died several hours later, in the early morning hours of September 1 st .

Debris from the motor vehicle which had struck the victim was found at or near the scene. 3 At approximately 10:10 PM on September 1 st the offender attended at the Leamington OPP detachment and advised an officer he was the driver of the motor vehicle involved in the collision the night before. He attended without having spoken to any legal counsel. He was given his rights to counsel by the officer and declined to speak to counsel before providing further details. The officer noted the offender was polite and cooperative during the arrest process.

The offender indicated just before the incident his cell phone showed an incoming call or text message but he did not answer it, he then made an adjustment to his car stereo and when he looked up he saw the victim riding a bicycle. He attempted to take evasive action, however he was not able to avoid the victim. He indicated when he struck the victim, the victim was thrown off his bike and his body struck his the windshield, damaging it, and then continued over the remainder of the vehicle. The offender said he observed the victim land on the north side of the road.

He indicated he was sure he had killed the victim given the speed he was driving and the fact that he had no time to apply the brakes. He continued on and called his friend whose residence he had just left. He told his friend something bad had happened and he needed his friend’s advice. They decided to meet at a location in Leamington. His friend had been traveling a short distance behind and passed the location of the accident. The friend observed the victim lying on the side of the road and also observed two vehicles which had stopped at the scene. When the

offender and his friend met up they had a conversation and then examined the large amount of damage to the offender's vehicle. The offender then returned home; he says he panicked. He parked the vehicle in his shop at his residence, he did not clean it and he did not tamper with it. The following morning he got up at 4:00 AM to attend work in Sarnia. He told his mother he had been involved in an accident. At this time in the morning, as a result of what he heard on the radio, he believed the victim was still alive, which was true.

His brother then drove him to Wheatley for work and on their way they passed the scene of the accident. He attended at work, listened on the radio and bought the newspaper to determine how badly he had injured the victim. During the day while working in Sarnia it bothered him that he had struck someone and left them. Upon returning home, his father, he and his brother had a conversation. By now, he was aware that the victim had died. He had already made up his mind that he was going to turn himself in. He prepared himself to be incarcerated.

He had dinner and then attended the Leamington OPP station with his brother. 4 When officers attempted to seize the vehicle they spoke to the offender's father. The father told the police that his son had been smoking marijuana on the night of the accident. As a result of the conversation with the father the police conducted a second interview with the offender. During the second interview the offender admitted that he had smoked marijuana approximately an hour to an hour and a half before the accident. He also acknowledged having what he described as a sip of beer.

The offender denied being impaired at the time of the accident. He indicated his motive for leaving the scene was that he was worried about being sued or going to jail. 5 The offender's entire family cooperated during the investigation and were extremely remorseful for the death of the victim. The family wanted very much to apologize to the victim’s family but were told by police not to contact the victim’s family.

Prior to being told this the offender’s brother and the offender’s friend had already attended at the victim’s residence and advised a friend of the victim’s family that they were extremely sorry for what happened. 6 The Collision Reconstruction Report prepared by members of the OPP concluded the offender was operating his motor vehicle at a speed between 66 km/h and 79 km/h in the posted 80 km/h zone, and therefore concludes speed was not a factor in the collision.

The author of the report concluded based on the physical evidence observed at the scene, had the cyclist utilized the required light system on the bicycle the driver of the motor vehicle may have been able to avoid the collision. The author also indicates the inattention of the operator of the vehicle may have been a factor in the collision. 7 Counsel agree that had the offender stopped at the scene of the accident it would not have prevented the victim from dying. Background of the Offender 8 The offender is part of a large family. He has ten siblings.

According to the pre-sentence report he shares a good relationship with his parents and siblings. They have all continued to offer him support throughout the proceedings and were here in court at the time of his guilty plea. The offender is single and resides in the parental home. He left school at an early age in order to secure employment. He is currently employed on a full time basis in the construction field. His employer confirms in the report that he is a good worker and will consider hiring him back upon his release should he receive a custodial sentence.

Although the report indicates there have been no concerns noted with regards to substance abuse the offender did acknowledge using marijuana once a month prior to the offence. The offender has been on conditions not to use alcohol or non-prescription drugs since the offence. He has abided by those conditions and indicated that he will not use marijuana again.

According to the report the offender appears to accept responsibility and expresses remorse for his behaviour; however the author of the report is concerned that he has not fully realized the impact of his actions and would benefit from a period of a community supervision which includes counselling. 9 With regard to the offence, the offender indicated to the author of the pre-sentence report that he has felt depressed since the time of the accident. The offender's father indicates he has noted a change in his son since the accident, as well as a change in the whole family.

Victim Impact Statements 10 There was numerous victim impact statements filed. They include statements from the victim's mother and father, older brother, younger sister, extended family members and friends of the victim. Most of them read their victim impact statements in court on the date of the sentencing hearing. Most, if not all, speak to the willingness of the victim to always want to help others and the joy he brought wherever he went. Obviously their lives have been dramatically affected. The pain does not appear to have subsided any since the incident.

Many of them expressed frustration and extreme disappointment that the offender did not stop and offer assistance to the victim. Many of them saw it as

an act of a coward and are left wondering if the offender was impaired by drug or alcohol.

Position of the parties 11 The defence agrees the offender should receive a jail sentence but argues the offender should receive a conditional sentence, submitting the offence of leaving the scene of an accident does not qualify as a “serious personal injury offence”. 12 The defence points to the following factors in support of a conditional sentence: 1) no prior record at the time of the offence; 2) guilty plea; 3) the offender turned himself in and provided an inculpatory statement without first having the benefit of any advice from legal counsel; 4) youthful age of the offender; and 5) he is employed. 13 He further submits the police completed a thorough investigation and there was no evidence found that the accused committed any other offence other then leaving the scene of the accident.

The defence carefully and with sensitivity for the victim's family submitted the investigation confirmed the offender not stopping in no way contributed to the death of the victim. 14 In support of its position the defence referred to three cases. The first one is the case of R. v. Snively , January 20, 2010, an unreported decision of Pomerance J. of the Ontario Superior Court here in Windsor. The accused in that case entered a guilty plea for an offence under s. 252 (1) of the Criminal Code , which is slightly different than the offence before this court. Her Honour granted a nine month conditional sentence.

The defence also relied on an April 14, 2011 unreported decision of my Windsor colleague, DeMarco J., the case of R. v. Granada . The accused before him entered a guilty plea to the same offence as in this case. He refers to Snively , agreeing with her Honour’s reasoning, and he too imposes a conditional sentence. As a result of the facts present in his case he imposed a twelve month conditional sentence. The third case the defence relied upon is the case of R. v. Areco , (1999) 140 C.C.C. (3d) (Ont. C.A.).

The Court of Appeal allowed an appeal as to sentence and imposed a conditional sentence in place of a custodial sentence imposed by the trial judge. The offence before the appellate court was dangerous driving causing death. 15 The Crown submits the appropriate sentence is a jail term in the mid level reformatory range and the accused should be incarcerated and not be allowed to serve his sentence in the community.

The Crown argues a conditional sentence is not available because the facts of this case support a finding the offender committed a serious personal injury offence. 16 The Crown further submits if the court concludes it is not a serious personal injury offence, it would still not be appropriate to impose a conditional sentence in this case as it would not meet the purpose and principles of sentencing. The Crown argues the accused actions of leaving the scene prevented the police from being able to conduct a full investigation.

If the accused would have stayed at the scene he would have been able to dispel any notion he was impaired or perhaps confirmed he was impaired, especially since the offender admitted smoking a joint with a friend and having a sip of beer between an hour and an hour and a half before the offence. As a result the Crown wonders if the offender was in fact impaired.

The Crown submits the accused held hostage the evidence that would have helped the victim's family understand how or why their son was killed. 17 The Crown's final argument on sentence was if the court was inclined to impose a conditional sentence it should come with the harshest of conditions including house arrest which does not allow the offender to leave his house even for employment purposes and he should have an electronic tether attached to him. 19 The Crown supported its position by referring to several cases (see endnote).

The Crown also asks this court to impose a three year driving prohibition, a DNA order and place the offender on probation with terms including counselling and an abstinence from alcohol and non-medically prescribed drugs. Issues

20 Two issues are raised. a. Is this a serious personal injury offence thereby making a conditional sentence unavailable? b. If a conditional sentence is available, is it an appropriate sentence? Analysis a. Is this a serious personal injury offence thereby making a conditional sentence unavailable? 21 First, dealing with the cases relied upon by the defence. In Snively, the offence charged was a different offence than the one before this court. The significant difference between them is that under s. 252 (1.3) (

b) an element of the offence is that the accused knew bodily harm had been caused and was reckless as to whether death of the other person resulted from that bodily harm. In Snively , supra, the offender was charged under s. 252 (1) where there is no such element to be proven by the Crown. The Crown is required to only prove that the accused failed to stop at the scene of the accident, give his or her name and address and offer assistance, with the intent to escape criminal or civil liability. The issue of whether the offence was a serious personal injury offence was not before the court.

In Granad a, supra, it appears as though the same offence may have been before the court and DeMarco J. when giving his reasons for sentence states, at page one, the offence he is dealing with is not a serious personal injury offence. He does so without providing any analysis. It is not clear if counsel argued that issue, although I would have expected DeMarco J. to have addressed the argument in more detail if it had been made. It is also not clear as to what case law he might have been provided. He does make mention of the Crown having provided an excellent case brief, which included Snively , supra.

The case of Areco , supra, was a dangerous driving causing death, not failing to remain at the scene of accident. Also of note, the issue of whether the offence qualified as a serious personal injury offence was not before the Court of Appeal as the amendment to s. 742.1of the Criminal Code , adding the words “other than a serious personal injury offence as defined by

section 752 ”, did not occur until 2007. As a result, I am not persuaded by these cases that a conditional sentence is available for the offence before me. Following is my analysis of the relevant sections and other case law. 22

Section 742.1 states that a conditional sentence is not available to a person convicted of a serious personal injury offence as defined in s. 752. The phrase, serious personal injury, is defined, in part, as follows: 752 . In this Part, … “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, … [Emphasis added] 23 For the case before me the pertinent part of the definition is s. 752 (a) (ii). 24 The offender has been charged under s. 252 (1.3) (

b) of the Criminal Code . That offence carries upon conviction a potential term

of life imprisonment. Two of the cases the Crown has referred to in support of incarceration, R. v. Wieczorek, 2010 ONCJ 582 ,[2010] O.J. No.5260 (O.C.J. ) and R. v. Davis, [2010] O.J. No. 4742 (O.C.J.), considered whether the specific offence before the courtqualifies as a serious personal injury offence. In Wieczorek, Perkins-McVey J. did not make a final decision on the issue but did indicateat paragraph 61: [61] On the other hand as previously set out s. 252 is an offence of obligation – one of those legal obligations is to offer assistancewhere any person has been injured or appears to require assistance.

By failing in his duty to Mr. O’Neil (a legal duty only owed by thedriver not bystanders) his conduct could be seen as conduct endangering or likely to endanger the life or safety of another person. [Emphasis added.] 25 As I said, Perkins-McVey J. did not make a ruling on whether the offence was a serious personal injury offence.

She concludedthat even if it wasn’t a serious personal offence she would not grant a conditional sentence as it would not be consistent with thefundamental purpose and principles of sentencing. 26 In Davis, Alder J. came to the same conclusion; she would not impose a conditional sentence even if the offence met the criteriafor a conditional sentence to be considered. But she did make the following comment about whether the offence was a serious personalinjury offence at paragraph 39: 39 Mr. Davis, after being involved in a serious motor vehicle accident with a motorcyclist, failed to remain at the scene.

There can beno doubt he knew that the person had been seriously injured; the person was on a motorcycle. By leaving Mr. Dorion on the roadunattended, he placed him at a risk of perhaps being hit by another vehicle. He did not know - Mr. Davis, that is - if anyone else wouldcome to help. He did not know what Mr. Dorion's condition was. In these circumstances, I find that Mr. Davis' conduct endangered orwas likely to endanger the life or safety of another person and, therefore, would be precluded from being an offence for which aconditional sentence is available. [Emphasis added.] 27 In R. v.

Lebar, 2010 ONCA 220 , [2010] O.J. No. 1133 the Ontario Court of Appeal dealt with the phrase. Admittedly,the Court was dealing with a case involving s. 752 (a) (

i) rather than (a) (ii). But in my view their review of what is meant by “seriouspersonal injury” offence and the method to be used by the trial judge in determining whether an offence is a serious personal injuryoffence is applicable to the case before me.

At paragraph 49 the court states: [49] A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence againstanother person, or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severepsychological damage upon another person.” Taken together, and especially taking into account the far-reaching meaning of the word“safety”, these two clauses point to the legislature’s intention to cover a very expansive range of dangerous behaviour with the term“serious personal injury offence”. 28 As I noted above, defence counsel carefully and with sensitivity submitted the offender’s conduct in leaving the scene did notendanger the victim’s life because there was nothing the offender could have done to save the victim.

The Crown argues that when youhit someone and drive away you are exposing them to danger, harm and risk and the offender should not be able to rely on a position thatit would not have mattered if he did stop. I agree. I do not believe the offender should accrue any benefit because as it turns out, therewould not have been anything he could have done to save the victim’s life. There would have been assistance the offender could haveoffered in terms of comforting the victim and assisting with the investigation. As the Court of Appeal stated in R. v.

Arruda, [2002] O.J.No. 2403, at paragraph 2: 2 In our view, the question whether the victim died instantaneously and the appellant’s state of knowledge of the fact is irrelevantand provides no basis for interfering with the sentence appealed from. 29 I am of the opinion that leaving the scene of an accident is dangerous behaviour which endangers or is likely to endanger the lifeor safety of another person. The fact that other people happened to be present doesn’t mitigate the danger he left the victim in, nor does itmatter that as it turns out he would not have been able to change the fate of the victim.

The offender was not aware of that fact when hedecided not to stop. On the facts of this case, the accused was clearly aware that he had struck a person on a bicycle, and that the personstruck his windshield and then fell onto the ground. At the time the offender decided not to stop he had no idea if anyone else had

stopped nor whether he could have assisted the victim. By not stopping he clearly endangered the life or safety of the victim andtherefore committed a serious personal injury offence. Therefore a conditional sentence is not available. 30 Having decided that issue it is not necessary to address whether I would have imposed a conditional sentence if I had come to adifferent conclusion. But, I feel it is prudent to do so. b. If a conditional sentence is available, is it an appropriate sentence? 31 The Court of Appeal has characterized the offence of “fail to remain” as a serious offence. In R. v.

Ramdass, [1982] O.J. 177(Ont. C.A.), R. v. Gummer, (ON CA), [1983] O.J. No. 181 (Ont. C.A.) and R. v. Fortin, [1984] O.J. No. 158 (Ont.C.A.), the Court of Appeal made it clear that the sentencing principles of general deterrence and denunciation are of paramountimportance in determining the appropriate sentence in this types of cases even when the accused is not charged with a driving offencerelated to the accident. I take note that these cases were decided before conditional sentences were available.

I am also cognizant of thefact that conditional sentence with appropriate strict conditions can meet the principles of denunciation and deterrence. The question iswhether in this particular case a conditional sentence would be a just and fit sentence, meeting the fundamental purpose and principles ofsentencing as outlined in the Criminal Code. 32 The Court of Appeal stated at paragraph 15 in Ramdass, supra: 15 It must be added, however that while Mr.

Hall was killed instantly in this accident the appellant had no way of knowing this andleaving him on the road was not only contrary to the Criminal Code but contrary to any standard of decency and humanity. 33 Perkins-McVey J. said in Wieczorek, supra, at paragraph 64: [64] …The duty imposed under s. 252 is not an onerous one – a person involved in an accident must remain at the scene, identify himor herself and give assistance to any injured party. This allows for any criminal investigation to occur without delay, resolves issues ofcivil or criminal liability.

Just as importantly, there is a simple duty as a human being to show care and respect for those who may havebeen injured or killed – to remain until authorities determine what has happened. 34 I agree. It is not an onerous duty, despite the anxiety that understandably comes upon anyone involved in such an accident. Whilethe feelings of panic that the offender felt are understandable, the action of continuing on his way is not. He had a legal duty to stop andhe chose not to. Even after he stopped to discuss the incident with his friend he chose to continue on to his home.

His actions reflected alack of regard for the welfare of the victim. Part of the purpose of the

section by directing the operator of the vehicle to stop and givetheir name and address is to allow criminal investigations to take place without delay or obstruction to assist in any criminal and/or civildispute that may arise. As a result of not stopping there remain many unanswered questions, such as whether the offender was under theinfluence of alcohol or a drug.

Although the accident reconstruction by the OPP answers some questions it is not able to answer whetheror not the sobriety or lack thereof on the part of the offender caused the offender to not see the victim on his bicycle or respond soonenough to avoid a collision. 35 On the facts in this case a conditional sentence would not meet the sentencing principles found in s. 718 to 718.2 of the CriminalCode. In particular the necessary principles of deterrence and denunciation would not be met with a sentence served in the communityfor this offence in this particular case.

Sentence 36 The question remains as to what is the appropriate length of sentence. 37 I have reviewed the entirety of s. 718 – 718.2. I have reproduced here the relevant parts of those sections applicable to the casebefore me: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;

(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating 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; … (

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Aggravating Factors 38 The following are aggravating factors:

a) the seriousness of the offence as indicated by the Ontario Court of Appeal;

b) the offender fled the scene without rendering any assistance or providing his name and address with intent to escape criminal and civil consequences;

c) we don’t know what the offender’s sobriety was because he did not turn himself in until the next day; and

d) the offender has on one occasion breached the condition of his bail (curfew). Mitigating Factors 39 The following are mitigating factors:

a) the offender entered a guilty plea and expressed remorse through the pre-sentence report and in

the courtroom; the matter was never set down for trial and the offender intended on pleading guilty from the outset;

b) he turned himself in the next day and provided an inculpatory statement to the police withoutrequesting to speak to a lawyer;

c) at the time of the offence he was first time youthful offender; as noted above, he subsequently wasconvicted of a curfew breach;

d) he has a strong family support network and the support of his employer which suggest goodprospects for rehabilitation; and

e) he is not charged with driving offences arising from the accident. 40 The authorities I have been provided and reviewed have a range of sentences between 5 and 12 months. Of course each case hasits own unique set of facts and individual circumstances or antecedents of the offender. Some of the sentencing decisions in the casesoccurred after a trial and some after a guilty plea.

Some had other charges associated with the fail to remain charge. 41 Bearing in mind the purpose and principles of sentencing noted above, the aggravating and mitigating circumstance in thisparticular case, the circumstances and antecedents of this particular offender I am of the view that a five month custodial sentence isappropriate. 42 This will be followed by a period of probation for 12 months with the following conditions in addition to the statutory terms:

a) report within 72 hours of your release from custody in person to a probation officer and be under their supervision or anyone elseauthorized by the probation officer to assist in your supervision and report at such times and places as required;

b) not attend at any known residence of Eric or Maria Peters;

c) attend for counselling as recommended by the probation officer;

d) abstain from the purchase, possession and consumption of alcohol; and

e) abstain from the purchase, possession and consumption of non medically prescribed drugs. 43 There will be a two year driving prohibition. This is not listed as a DNA eligible offence so no DNA order is made. I will waivethe victim fine surcharge as a result of the incarceration. Dated October 12, 2011 ________________________ Judge Lloyd Dean Ontario Court of Justice Endnote List of cases referred to: 1. R. v. Ramdass, [1982] O.J. No. 177 (Ont. C.A.) 2. R. v. Gummer, (ON CA), [1983] O.J. No.181 (Ont. C.A.) 3. R. v. Fortin, [1984] O.J. No. 158 (Ont. C.A.) 4. R. v. Phillips, (ON CA), [2005] O.J. No. 155 (Ont. C.A.)

5. R. v. Wieczorek, 2010 ONCJ 582 , [2010] O.J. No.5260 (O.C.J.) 6. R. v. Davis, [2010] O.J. No. 4742 (O.C.J.) 7. R. v. Shelly, [2002] O.J. No. 1442 (Ont. S.C.J.) 8. R. v. Areco, (1999) 140 C.C.C. (3d) (Ont. C.A.) 9. R. v. Granada, April 14, 2011 unreported (O.C.J.), Windsor, ON 10. R. v. Snively, January 20, 2010, Pomerance J., unreported (Ont. S.C.J.), Windsor, ON 11. R. v. Lebar, 2010 ONCA 220 , [2010] O.J. No. 1133 (Ont. C.A.) 12. R. v. Arruda, [2002] O.J. No. 2403(Ont. C.A.)