R. v. McKinlay Date:, 2013 BCPC 370

Citation: R. v. McKinlay Date: 20131024 2013 BCPC 0370 File No: 195859-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DYLEN JAMES THOMAS McKINLAY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Jantunen Counsel for the Defendant: A.P. Serka, Q.C. Place of Hearing: Surrey , B.C.

Dates of Hearing: August 7, 8, 9, September 26, 2013 Date of Judgment: October 24, 2013 [ 1 ] THE COURT : Dylen McKinlay is before the court today to be sentenced following his pleas of guilty to two counts of dangerous driving causing bodily harm arising from the events of August 21st, 2011. On an earlier day I heard submissions from both counsel, admissions of fact were filed, both counsel provided books of authorities containing court decisions in previous cases. In addition to that material, I have reviewed the pre-sentence report, Mr.

McKinlay’s motor vehicle driver's extract, and the book of letters of support filed on his behalf. [ 2 ] The hearing was adjourned to today's date to allow me to consider all of that material in the context of the purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code which guide sentencing in criminal proceedings, and to determine the appropriate sentence to be imposed. [ 3 ] The Crown seeks a sentence of six months' imprisonment, followed by a three-to-four-year driving prohibition.

Such a sentence emphasizes the importance to be placed on general deterrence and denunciation of this offender's conduct in serious cases of this kind. Counsel for Mr. McKinlay seeks a suspended sentence with lengthy probation. Mr. Serka agrees these offences are serious and that deterrence and denunciation are important sentencing objectives, but he argues that the particular circumstances of this offender call for strong emphasis on rehabilitation and restorative objectives.

He says a proper balancing of all of the objectives of sentencing at play here support a non-custodial outcome. [ 4 ] The offence of dangerous driving causing bodily harm is a very serious criminal offence. In the particular circumstances of this case, two close friends of Mr. McKinlay's suffered significant injuries. Although it is not common that the maximum penalty available for this offence is imposed, the fact that the maximum penalty is ten years' imprisonment helps us to understand how seriously Parliament and the community view this conduct.

Those who drive dangerously place their passengers, those on or near the roadway, and themselves at great risk of death or, as in this case, serious harm. This maximum sentence helps to emphasize the overriding importance our sentencing regime places on the deterrence of others, as well as this offender, from driving in a way that places people at risk. [ 5 ] Everyone in this courtroom understands that it is important to deter people from driving dangerously on our highways. We have all heard too often, news of the tragic consequences that can follow. Those of you who are here to support Mr.

McKinlay today now have that experience beyond a news report. You have personally experienced the agony that flows from seeing a young man you love and respect, called to account in a criminal court for his criminal behaviour in serious circumstances. Many of those who know Mr.

McKinlay well have attested in letters filed in this hearing that the actions of this young man on the night of August 21st, 2011 are not the actions of the Dylen McKinlay they know, that this must have been a lapse of judgment, that he has learned his lesson and won't do something like this again, that he has accepted responsibility and wants now to be the best person he can possibly be, that he has learned from this experience and that no good purpose would be served now if he were held back in fulfilling his aspirations. [ 6 ] Those many letters, the pre-sentence report, and Mr.

Serka's submissions have satisfied me that indeed Mr. McKinlay is the person those letters describe, that he understands today how his foolish behaviour and exceedingly poor judgment placed his friends and anyone else on or near that road at great danger, that he accepts personal responsibility for the injuries his two close friends have suffered, for the agony their families have suffered, and the worry and concern his parents, his sisters and friends have had to endure, and as well, he knows that his own actions have placed his career as a professional hockey player in danger.

I am satisfied he is exceedingly remorseful and that he wants only to see his friends fully recover their health. I am satisfied that Dylen McKinlay is unlikely to act this way again. His personal deterrence is well in hand. [ 7 ] He is a young man; 19 at the time of these events, 21 now, with no prior criminal record. His continued rehabilitation in these circumstances is an important sentencing consideration. [ 8 ] But these are not the only important objectives of sentencing in a case like this.

I must consider those objectives, together with a spectrum of other important sentencing objectives in arriving at the appropriate outcome. Mr. McKinlay's conduct carries a significant degree of moral blameworthiness. I must impose a sentence which denounces his conduct in strong terms. Denunciation in this context is a statement on behalf of the community which expresses in measured terms, not driven by the emotions of the moment, the community's outrage over his actions, the risks he created, and the harm he caused, and in doing so, his disregard for the basic values of the community. Accepting Mr.

McKinlay's personal deterrence is substantially achieved, I must nevertheless impose a sentence which also delivers a strong message of deterrence to others who might act as he did in similar circumstances. [ 9 ] In determining a proper sentence and in finding the right balance among these sentencing objectives, I must consider aggravating and mitigating factors in respect to this particular offence and this particular offender. I must take account of sentences imposed on similar offenders in similar circumstances.

I must consider all available sanctions other than imprisonment that are reasonable in the circumstances. I must not deprive an offender of liberty if less restrictive sanctions are available and appropriate. [ 10 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. From this you will see that sentencing in a criminal case is not an arbitrary process. It is complex. Each individual case must be judged on its particular circumstances. Even in cases where the personal circumstances of the offender are positive, as they are for Mr.

McKinlay, courts have imposed sentences of imprisonment where balancing of all sentencing objectives and principles require that. I must determine in this particular case whether that analysis calls for imprisonment, as the Crown argues, or whether that balance favours the non-custodial outcome which Mr. McKinlay seeks. [ 11 ] Section 731(1) (

a) of the Criminal Code provides that a court may, having regard to the circumstances of the offence and the offender, suspend the passing of sentence and direct the offender be released on conditions prescribed in a probation order.

Section 732.1 sets out statutory and optional conditions which may be included in a probation order.

Section 732.1(3) (

h) provides for:

…other reasonable conditions that the court considers desirable, subject to regulations… for protecting society and for facilitating theoffender's successful reintegration into the community. [12] The Supreme Court of Canada has made clear the purpose of probation is rehabilitative and restorative (R. v. Proulx, 2000 SCC5 , [2000] 1 SCR 61). Its purpose is not punitive, although that may be a secondary effect (R. v. Harding 2002 BCCA 606 atpara. 14).

I take from the authorities that in serious cases, suspending the passing of sentence and imposing a probation order willgenerally make a much-reduced statement of denunciation and deterrence.

Its appropriateness must be gauged in that light whenassessing the circumstances of the offence and balancing the degree of responsibility of the offender. [13] Until recent years, a conditional sentence order was available as a sentencing option which allowed a custodial sentence to beserved in the community under strict conditions and provided a means by which, in appropriate cases, general deterrence anddenunciation could be addressed while supporting rehabilitative and restorative steps which were underway. Parliament has determinedthat middle ground between the suspended sentence with probation urged by Mr.

Serka on Mr. McKinlay's behalf, and a conventionalsentence of imprisonment urged by Crown counsel, should no longer be available. [14] I must be mindful of the guidance the British Columbia Court of Appeal recently provided sentencing courts as a result of thischange in the sentencing landscape. R. v. Smith is a decision of the British Columbia Court of Appeal this summer. That was a case ofan impaired driver who caused death. The sentencing judge imposed one day of imprisonment and a three-year probation order. TheCourt of Appeal acknowledged that sentence was available, but concluded it was not appropriate.

At paragraphs 71 and 72 of the Courtof Appeal's decision, Madam Justice Bennett of the Court of Appeal stated the following: By eliminating conditional sentences for the offence in this case, Parliament did not open the door to reducing sentences below the usualrange to avoid its clear intention that offenders should be incarcerated. The judge’s task was to determine a fit sentence. He did that andthen balked at the implications of Parliament’s elimination of a conditional sentence for this offence. This led the judge to craft asentence that was not fit.

Often in these cases two lives are lost: the victim and the offender. I understand the judge’s desire to attempt to save the respondent, butit was not open to him to do so by circumventing Parliament’s express intention that such offenders be incarcerated. (R. v. Smith 2013BCJ No. 745 (BCCA)) [15] That was a more serious case and carried a higher maximum penalty because the offender was impaired by alcohol and a deathresulted. The Court of Appeal in the Smith case also noted that the actual consequences are relevant to the analysis.

Madam JusticeBennett took the following from a decision in the Supreme Court of Canada called DeSousa. She quoted this paragraph: Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable todistinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.

This isreflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledgethe harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response. [16] Madam Justice Bennett in the Smith case then stated: It is clear that where there is a more serious consequence from

an act, a higher sentence may be justified. The moral culpability is higherfor the person who kills someone when impaired as opposed to someone who drives impaired but causes no injury or death to another. Thus, the sentencing judge erred when he concluded that Ms. Smith’s moral blameworthiness was the same as if she had not killedsomeone. Parliament has clearly said it is not. (R. v. Smith, supra, para. 45) [17] With those considerations in mind, I will now summarize the circumstances in this case. [18] At about 9:30 p.m. on the evening of August 20th, 2011, Mr.

McKinlay drove his father's 2003 Nissan 350Z two-seater sportscar from his home to a gathering of friends on 88th Avenue, also known as River Road, in Langley. Oliver Simon was a passenger. Atthe party, Mr. McKinlay consumed vodka. His last drink was at 10:30 p.m. His friends also consumed alcohol. At about 12:15 p.m.,Mr. McKinlay, Mr. Simon and a third friend, James Winterton, attempted to organize a taxi to leave the party. They did not have cash topay the taxi and the driver would not take them. Mr. McKinlay then offered to give Mr. Simon and Mr. Winterton a ride in his father'stwo-seater sports car. Mr.

Winterton was in the passenger's seat; Mr. Simon occupied the space between the driver's seat and thepassenger's seat. Mr. McKinlay and Mr. Winterton wore the two seatbelts available; Mr. Simon was not secured nor occupying a properseat. Neither Mr. Winterton nor Mr. Simon recalls observing Mr. McKinlay to exhibit symptoms of alcohol impairment. Mr. McKinlayleft, driving westbound. [19] 88th Avenue westbound from 252nd Street, the site of the party, is a paved roadway with a single lane in each direction. Thearea is rural. The speed limit is 60 kilometres per hour.

The road is generally straight with a slight incline as the crash site isapproached. Weather conditions were good. [20] Paragraphs 7 and 8 of the Agreed Statement of Facts are as follows: 7. Winterton noticed that McKinlay accelerated quickly. Winterton was concerned about the speed at which the vehicle wastravelling, and when the vehicle got to the West Creek Bridge, Winterton asked McKinlay to slow down. On the west side of the bridge,Winterton observed that McKinlay began slowing down. At this time, Winterton recalled looking at the vehicle's speedometer and

seeing that it indicated that the vehicle speed was between 155 and 160 kilometres an hour. 8. Winterton recalled that as the vehicle approached the intersection of 88th Avenue and Armstrong Road, he felt the vehicle hit a bump. At this point McKinlay lost control of the vehicle, which became airborne, rolled, and came to rest in a large ditch next to railway tracks. The vehicle was facing in a northeast direction when it came to a stop. [ 21 ] Cpl. G.B. Parsons is a forensic collision reconstructionist with the RCMP. He investigated the scene and examined the vehicle.

His report is Appendix 1 to the Agreed Statement of Facts. He determined the vehicle was travelling at a minimum speed of 190 kilometres per hour just before it crashed. The vehicle sustained substantial damage which can be seen in the photographs marked Appendix 2 to the agreed facts. The officer who attended the scene detected a faint odour of liquor on Mr. McKinlay's breath. He was cooperative with police. No other symptoms of impairment were noted. [ 22 ] Mr. Winterton was hospitalized and was unable to walk for several days.

He suffered at least five broken ribs, torn neck ligaments requiring he wear a neck brace for four or five days. His C2 and C3 vertebrae were dislodged. His spine is no longer curved as it should be. He suffers neck and back pain. He suffered a shoulder injury resulting in an inability to raise his arm over his head for a period of months. He suffers migraines, his face can become numb, and he is very sensitive to light. He has been diagnosed with Post Traumatic Stress Disorder. He expresses anxiety when riding as a passenger in a vehicle. He has nightmares. Mr.

Winterton played competitive baseball but has been unable to play since these events. [ 23 ] Oliver Simon was hospitalized until September 19th following the accident. He remained in a coma for eight days. His ability to concentrate, his memory, his organizational and planning skills and his ability to retain information have all suffered as a result of the head injury he sustained. His spleen and liver were lacerated. He suffered a fractured spine and a fractured condyle in the neck. His nasal bone and a rib were broken.

He developed sepsis while in the hospital. [ 24 ] When one considers the speed this vehicle reached, its small size, the congested space with three people pressed inside a compartment built for two, the fact Mr. Simon was not secured, and the extent of the damage to the vehicle, we can only be thankful the outcome was not much worse. [ 25 ] At the time of these events, Mr. McKinlay was under a Motor Vehicle Act restriction. He was only permitted to operate a vehicle while carrying a single, non-family passenger. He was in violation of that restriction. That extra passenger, of course, was unrestrained. Mr.

McKinlay had consumed alcohol earlier in the evening. In these circumstances, and travelling at a speed likely at or exceeding three times the permitted speed limit, he presented an enormous risk on the highway. That risk was realized when he lost control of this vehicle. [ 26 ] Mr. McKinlay does not have a criminal record; however, his motor vehicle record leading up to these events is troubling. His record includes two prior Motor Vehicle Act speeding violations in 2009 and 2010. On three occasions he failed to have displayed the "L" or "N" designation required of young drivers.

On one occasion he failed to produce a driver's licence or insurance. Based on his history, he was prohibited from driving by the Superintendent from November 28, 2010 to February 28, 2011. The events of August 21st, 2011 occurred just six months after that prohibition ended. [ 27 ] Those earlier sanctions were intended to teach Mr. McKinlay the importance of safe driving. They did not succeed. That message has now reached Mr. McKinlay but at a very high price, principally paid by his two friends and their families. [ 28 ] Dylen McKinlay is 21 years of age now. He has completed Grade 12.

He is part of a close and supportive family which includes three younger sisters. Many of those supporters, of course, are here in court today. Mr. McKinlay is a highly-accomplished hockey player. He has played major junior hockey in the Western Hockey League since he was 16, and has lived the winters away from home as a result. His junior career ended in the spring of 2013. He was earlier drafted by a National Hockey League team in the United States. His ambition is to play in the National Hockey League.

He is under contract to a minor league team this year in the United States, I am told. [ 29 ] I am also told that his NHL ambitions are at risk. Although I have not been provided the specifics of how that might occur, I assume the risk might arise as a result of any restraint on his ability to travel to the United States, or his ability perhaps to meet contract obligations this year. [ 30 ] I understand he faces the potential for substantial civil consequences. This is a relevant personal circumstance when considering the restorative objectives of sentencing. ( R. v. Sadler 2009 BCCA 386 at para. 24 ) [ 31 ] Mr.

McKinlay has very strong support from his family, from the community, and from people he has known through his junior hockey career. His reputation among this wide circle is remarkably strong. He is described as a person who took responsibility immediately and attended the hospital to support his friends and their families. It is clear that he has suffered anguish over his decisions that night, and what has followed. He has not driven since. His neighbours speak of his involvement with their children as a role model when he is at home.

His coaches, billet parents and teammates have described his strong work ethic, determination to succeed in his sport, and his positive contribution as a teammate. He has actively participated in team-sponsored initiatives supporting the communities where he has played. [ 32 ] In many of the letters of support, the writers have urged a non-custodial outcome for Mr. McKinlay. I understand why they would say that. I cannot be swayed by those urgings. I can say, however, that the many letters filed are of assistance to me, along with the pre-sentence report and Mr.

Serka's submissions, in seeing beyond the tragic facts of this case to Mr. McKinlay's best qualities. Those comments have assisted me in concluding that his personal deterrence is well at hand and that his rehabilitation is progressing. [ 33 ] Crown counsel has drawn my attention to several authorities in which the most serious of the charges involve driving where death ensued. Conventional jail sentences were imposed. Generally, the significance of those cases in the present analysis lies in the

importance courts place on deterrence and denunciation in cases involving dangerous driving and risk-taking behaviour. Those casesemphasize the impact a conventional jail sentence has on those objectives, even in the case of offenders with no prior criminal history. R. v. Gill, [2012] BCJ No. 2815; R. v. J.A.W., [2006] BCJ 1112 (BCCA) in the Court of Appeal in this province; R. v. Binning, [2012]BCJ 1291 (BCPC) in this court in 2012; R. v. Nyl, Abbotsford Reg. no. 77578-1 Aug. 17, 2013, BCPC in this court earlier this year, areall examples. R. v.

Smith, which I referred to a few minutes ago from the Court of Appeal, is another example. [34] The Crown argues that those objectives are compelling here and can only be addressed adequately through a custodialsentence. Crown counsel also brought to my attention the Court of Appeal decision in Ontario in a case called R. v. Rawn, 2012 ONCA487 , [2012] OJ No. 3096 (Ont. CA) in which the offender was convicted following trial on seven counts of dangerous drivingcausing bodily harm. In that case, Ms.

Rawn, driving one vehicle, and another person driving a second vehicle, both with passengers,accelerated in tandem down a residential street. A collision occurred involving significant injuries to the occupants. Rawn was aged 40with no prior record. The trial judge suspended sentence and placed her on a two-year probation order. The Court of Appeal set thesentence aside and imposed a nine-month jail sentence.

At paragraph 33 of that decision, the Ontario Court of Appeal stated thefollowing: General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one. Other,like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence canonly denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment. (R.v.

B.W.P. 2006 SCC 27, [2006] 1 SCR 941 at para. 2 - 5) [35] A complete consideration of that case, that is the Rawn case, will also note that the second driver was a youthful first offenderwho took responsibility in the aftermath of the accident and demonstrated remorse. On a joint submission, his sentence was suspendedon his guilty plea and he was placed on probation. His sentence was not under appeal, but it was the trial judge's application of the parityprinciple in Rawn which the Court of Appeal took issue with. The court noted that Rawn, although a first offender, at no time acceptedresponsibility.

The court said: In fact, in her response to the trial judge's invitation to address the court in advance of being sentenced, she maintained that "the other kidin the car was more guilty than I was." The court sentencing the other driver noted he had a lesser role, and the Court of Appeal noted that there were factors relevant to thedetermination of his sentence which supported leniency. I take those other factors or considerations to be his relative young age, hisremorse, and his early acceptance of responsibility. [36] Mr.

Serka has placed several cases of assault causing bodily harm and aggravated assault before me on which a suspendedsentence and probation was the outcome. The examples are R. v. Boone, [2013] BCJ 1587 (BCSC) in 2013 in the Supreme Court in thisprovince, R. v. Greenough, [2013] BCPC 218 (Brecknell PCJ), a decision of this court in 2013, R. v. Nakamura, [2012] BCSC 327, adecision of Mr. Justice Romilly of the Supreme Court, and R. v. Nicholls, [2013] BCSC 1145 (Savage, J.) a Supreme Court decision in2013. Those are examples of the cases I am referring to. Mr.

Serka argues the outcomes in those cases are useful in assessing a fitsentence because the harm is measured in similar terms under the Criminal Code. I conclude their value is limited. Certainly thedefinition of bodily harm is the same, but the sentencing considerations for dangerous driving are otherwise much more specific to thecontext of that offence and the weighting of the sentencing objectives must be considered in that context. [37] Mr. Serka has also provided cases in which alcohol is a strong presence and influential in the circumstances, or where death hasoccurred, or both, and argues that Mr.

McKinlay's lower degree of moral culpability should be gauged against those outcomes supportiveof a non-custodial sentence. [38] In R. v. Peragine, [2012] BCPC 355, Judge Harris of this court in 2012 imposed a five-month sentence of imprisonment wherethe offender left the scene of an accident in which a pedestrian died, a case which carries significant moral blameworthiness.

R. v.Gelowitz (Surrey reg. no. 190382-1 July 2, 2013, BCPC) is a decision of mine in 2013 in which the offender, on guilty pleas, wassentenced to two-and-a-half years for dangerous driving causing death of a passenger, and 15 months concurrent for the dangerousdriving causing bodily harm to a second friend. High blood alcohol readings and high speed were present in that case. The offender hada significant motor vehicle driving record, including offences post-dating the matters before the court, at least one of which involvedalcohol. [39] Mr. Serka has drawn my attention to R. v.

Gill (Surrey reg. no. 190555-1 June 26, 2013 BCPC which is a decision in June ofthis year in which I imposed a 90-day intermittent sentence in respect of a charge of dangerous driving causing bodily harm in whichalcohol was involved. [40] A suspended sentence with probation was imposed by Mr. Justice Romilly in a case called R. v. Giles, [2012] BCSC 775 on acharge of dangerous driving causing bodily harm where a 19-year-old offender, having consumed one beer, drove out of a McDonald'srestaurant. She became confused by the road pattern, but nevertheless drove at an excessive speed. Her food fell to the floor.

Shereached for it, lost sight of the roadway, and collided with another vehicle, causing herself and three people to be injured who were in theother vehicle. Severe injuries resulted. Although her blood alcohol reading was .104, the expert stated she was probably not impaired. She faced a civil lawsuit. She was genuinely remorseful. She had prior 12-hour and 24-hour prohibitions on her record.

Her inattentionwas momentary. [41] Justice Romilly observed the importance of reflecting the nature of the harm caused, that sentencing is not an academicexercise, that the harm can be lifelong, and that as a result, courts are obliged to impose sentences of condemnation and deterrence. Healso noted that each case must be resolved on the particular circumstances of the offence and the moral culpability of the offender. Hestated the following at paragraphs 45 and 46 of that decision:

The circumstances of the offender include her young age; her lack of an extensive or related criminal record; her plea of guilty, her lossof employment as a result of this conviction and her civil liability for the accident. The circumstances of the offences include excessive speed; consumption of alcohol and her momentary inattention while driving at ahigh rate of speed. Quite frankly, the moral culpability of this young accused was not as high as some of the other cases to which I havepreviously referred. He imposed a suspended sentence with probation. The circumstances here are more serious than in R. v.

Giles. (Note: This sentencewas inadvertently missed when the oral judgment was delivered.) [42] Deterrence and denunciation are often the overriding considerations in cases like this, but ultimately, the sentence I imposemust account for all of the relevant objectives and principles to reach an outcome that reflects the gravity of the offence and the moralculpability of this offender. (R. v. Kwasnica (BCSC 2006 BCSC 2037 , 2006 BCJ 3504, Cullen ACJ)) [43] The determination of a fit sentence in this case is challenging because Mr. McKinlay, I am satisfied, is highly remorseful.

Heimmediately accepted responsibility. He has agonized for his friends and the harm he has caused. He is young, with no prior criminalhistory. He has worked hard to position himself for a career as a professional hockey player. His prospects of pursuing that career arelikely to be affected to some extent. He is loved and respected by those who know him well. He has their complete support which isimportant in assessing his rehabilitative prospects. He faces civil consequences.

He is certainly, in my view, an offender who shouldhave the benefit of a strong weighting in favour of restorative and rehabilitative considerations. The issue is whether that weightingshould overcome the need for the strong statement of deterrence to others and denunciation which a sentence of imprisonment delivers. [44] Despite the Criminal Code provisions which allow an individual to be brought back before the court to have sentence imposedif a new offence is committed, a suspended sentence and a probation order make a muted statement of general deterrence in a case likethis.

There is no middle ground available. The court cannot fix that situation by imposing a sentence which amounts to an inadequateresponse to deterrence. [45] In this case, Mr. McKinlay made the worst possible decision in deciding to drive himself and his friends away from the party. He consumed alcohol that night. He violated the restrictions on his driver's licence by carrying an extra passenger, and he allowed thatperson to ride unseated and unrestrained. He drove at high speed, three times the posted limit, on a rural, two-lane highway.

Althoughone of his friends asked him to slow down, on the circumstances before me his response must be determined to have been minimal. Anyvehicle travelling at that speed under those circumstances was on a knife edge. Mr. McKinlay could not safely respond to the leastdistraction or unexpected event. He was not deterred by earlier speeding enforcement or by a recent three-month driving prohibition. Hedeliberately engaged in a high-risk behaviour.

The injuries caused to his friends are not fleeting; they are not at the low end of bodilyharm. [46] I have determined in these circumstances, despite strong weighting in favour of rehabilitative objectives, a suspended sentencewith probation does not deliver the necessary deterrent message. It does not adequately denounce this conduct. It does not reflect thegravity of the offence or the moral blameworthiness of this offender. [47] Mr. McKinlay, if you could stand, please?

On both counts concurrent, I impose a sentence of three months' imprisonment. [48] The victim surcharge is waived. [49] There will be a three-year driving prohibition under the Criminal Code which will apply across Canada. [50] A DNA Databank order will be made, to be enforced during the period of imprisonment. (REASONS FOR SENTENCE CONCLUDED)