R. v. Savoie, 2011 ONCJ 268

Citation: R. v. Savoie , 2011 ONCJ 268 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Paul Savoie Before Justice M.H. Bloomenfeld Heard on February 10, 2011 and April 5, 2011 Reasons for Judgment Delivered Orally on May 17, 2011 R. Koehl and J. Smith ................................................................................................. for the Crown J.

Struthers ........................................................................................... for the accused Paul Savoie Bloomenfeld J.: INTRODUCTION [ 1 ] On February 10, 2011, the date set for his preliminary inquiry, Paul Savoie entered guilty pleas to two counts of assault with a weapon against a peace officer, assaulting a peace officer, dangerous driving, failing to stop in order to evade a peace officer and driving while his licence was suspended pursuant to the Highway Traffic Act .

The matter was adjourned to April 5, 2011 for a fuller recitation of the facts, the preparation of a pre-sentence report and sentencing submissions. Mr. Savoie has returned today, May 17, 2011, for sentencing. [ 2 ] I will elucidate the facts and circumstances more expansively further on in my reasons but, in

summary, Mr. Savoie was seen by police acting suspiciously in the driver’s seat of a motor vehicle in a parking lot at a housing project. Unbeknownst to the police, Mr. Savoie had purchased cocaine earlier that day and still had trace amounts in his system. Rather than allow the police to investigate him, Mr. Savoie took off in his car and instigated a police chase in which he drove directly at police officers both on foot and in their cars, actually collided with police cars twice and continued to flee at high speeds throughout the neighbourhood, jumping lanes and curbs and sometimes driving on grass.

He eluded being boxed in by the original investigating officers and back up scout cars and only stopped driving when he ran into a tree, deployed the air bags and injured himself. Even then, Mr. Savoie refused to get out of his car and ultimately had to be forcibly removed by police breaking his driver’s window and dragging him out. Mr.

Savoie was seriously injured in this process but none of the police officers was harmed. [ 3 ] Crown counsel contended that these offences are sufficiently serious that the paramount sentencing principles of deterrence and denunciation mandate a penitentiary term in the range of 27 months. She invoked, amongst other things, the recent death of a police officer in this community by being run down by a citizen that he was trying to apprehend for dangerous driving.

In seeking a penitentiary sentence, Crown counsel submitted that persons in the community must not view their chances to avoid serious penal consequences as better if they attempt to use their vehicles to flee police apprehension. This sentence should demonstrate that when an officer says “stop,”one must stop. [ 4 ] Defence counsel characterized this as a case of “a good man who drove badly” and has rehabilitated himself since his arrest. He also pointed out that Mr. Savoie did not try to out-drive the police because he was trying to evade apprehension for an underlying crime. He just panicked.

While it may have appeared to the police that they were being assaulted, Mr. Savoie never actually hit anybody and the only person injured was himself. Defence counsel disputed Crown counsel’s emphasis on the gravity of Mr. Savoie’s conduct and dismissively described the offences as a “game of bumper cars with the police.” Although he did not provide any specific recommendation with respect to sentence, defence counsel observed that the totality of the circumstances could potentially support anything from a suspended sentence plus probation, to a reformatory term to imprisonment in the penitentiary.

He submitted that, if I determined that jail was a necessary component of the sentence, Mr. Savoie’s 17 months [1] of scrupulously-observed house arrest and diligent, successful and demonstrable efforts at rehabilitation should keep him out of the penitentiary and within the provincial reformatory system. CIRCUMSTANCES OF THE OFFENCE [ 5 ] On Saturday, November 1, 2009 at approximately 9:45 p.m., two police officers, Cosntables Matthew Wighton and Ronald Reise, were in the area of the north parking lot of the housing development at 90 Mornelle Court in Toronto on routine patrol.

The officers were in full uniform and driving a marked scout car. They saw a black motor vehicle parked haphazardly across a number of parking spaces. Thinking that the car was unoccupied and possibly abandoned or stolen, the two officers drove up. As they got to the vehicle, they noticed a male person, ultimately identified as Mr. Savoie, slouched down in the driver’s seat. According to defence

counsel, the events that followed were the result of Mr. Savoie panicking when he saw the police approaching. [ 6 ] Mr. Savoie sat up in the driver’s seat and turned on the headlights. The officers got out of their car and approached Mr. Savoie’s vehicle. Mr. Savoie backed his car up while P.C. Wighton continued towards him on foot and P.C. Reise returned to the scout car. Trying to leave the parking lot, Mr. Savoie drove forward past P.C. Wighton, striking the police scout car. Because the scout car was blocking his escape, Mr. Savoie made a u-turn and drove around it. P.C. Wighton pursued Mr.

Savoie on foot, believing that he may try to abandon the car and flee. Instead, Mr. Savoie accelerated and drove directly at P.C. Wighton. Fearing for his life, P.C. Wighton turned and ran towards the parked cars. [ 7 ] Believing that P.C. Wighton’s life was in imminent danger, P.C. Reise got back into his scout car and reversed it, driving between Mr. Savoie’s car and P.C. Wighton to protect P.C. Wighton from being struck by Mr. Savoie. As a result, Mr.

Savoie hit the left side of the scout car and accelerated again, continuing towards the parking lot exit and striking another parked motor vehicle on his way out. P.C. Wighton got back into the scout car and called for back-up while P.C. Reise drove in pursuit of Mr. Savoie. [ 8 ] The police officers momentarily lost sight of Mr. Savoie’s car but then saw him travelling eastbound as they were leaving the parking lot. They continued following Mr. Savoie, activating all of their emergency equipment including lights and sirens. Mr.

Savoie was driving at a speed between 90 and 100 kph in a marked 50 kph zone and his vehicle was smoking. [ 9 ] Mr. Savoie turned on to another street and other scout cars tried to box him in. P.C. Reise positioned his scout car in front of Mr. Savoie’s vehicle while two other cars positioned themselves behind. P.C. Reise slowed down in an effort to get Mr. Savoie to slow down as well. Instead, Mr. Savoie began to swerve on the roadway, trying to get around P.C. Reise. He drove his vehicle so close to P.C. Reise’s scout car that P.C. Reise could not even see his headlights in the rear view mirror. Mr.

Savoie then pulled out to the left of P.C. Reise’s scout car, still travelling at 80 to 90 kph, and intentionally swerved into the side of the police car, striking it for the second time. Mr. Savoie’s vehicle then jumped the curb, drove on to the grass and kept going. The police slowed to allow Mr. Savoie to move ahead and then pulled on to the grass behind him. Mr. Savoie crossed on to another street, tried to turn eastbound on that street but instead jumped the curb on the other side and drove on the grass again. When he tried to manoeuvre his vehicle around a light pole, Mr. Savoie struck a tree.

His car spun around and came to a rest. [ 10 ] The police stopped, got out of their scout cars and approached Mr. Savoie with their guns drawn. They yelled at Mr. Savoie to get out of his vehicle so that they could see his hands, but Mr. Savoie just sat there. They tried to open the driver’s door but it was locked. The police officers then saw Mr. Savoie moving his hands out of their eyesight. Fearing for officer safety if Mr. Savoie was fumbling for something, P.C. Wighton used his asp to break the driver’s window and forcibly removed Mr. Savoie from the car. Mr.

Savoie grabbed the asp but other officers intervened and took him to the ground, where he continued to struggle. [ 11 ] Subsequent examination of Mr. Savoie’s vehicle revealed that his airbags had been deployed and there was blood on the driver’s air bag and the bottom of the driver’s door where the metal was bent and jagged. Mr. Savoie was taken to hospital, treated and then released into police custody. [ 12 ] Although Mr. Savoie suffered serious injuries, none of the police officers was harmed.

Crown counsel attributed this fortunate circumstance primarily due to the quick-thinking responses of the police. [ 13 ] Mr. Savoie, through his counsel, focused much of his sentencing submissions on the drug and alcohol addictions that had ruled his life until these offences inspired him to embrace sobriety and devote himself to his own rehabilitation. The Crown challenged the significance of the role by played by substance abuse in Mr. Savoie’s conduct in this case. She pointed out that, while Mr.

Savoie had consumed cocaine earlier that day, there was no charge of impaired driving here and the toxicology report revealed only traces of narcotics in Mr. Savoie’s system. She argued that cocaine may have contributed to Mr. Savoie’s conduct but that is not what drove him to try to strike the police officers and their vehicles. Rather, she asserted that Mr. Savoie’s addictions did not run him.

He had been gainfully employed for 10 years and in this case made the choice to try to run down a police officer with a lethal weapon rather than submit to the legitimate police efforts to apprehend him. [ 14 ] Further investigation showed that Mr. Savoie’s licence to operate a motor vehicle had been suspended on March 8, 2001 for unpaid fines and then again on September 24, 2009 for driving while his license was under suspension. CIRCUMSTANCES OF MR. SAVOIE [ 15 ] Mr. Savoie is now 32 years old. He has a spouse, Natasha Noseworthy, and together they have a five-year-old son.

While he got into some trouble with the law as a youth, Mr. Savoie had no criminal record until now. He began using drugs and alcohol in his early teens and was ultimately expelled from high school in grade eleven for dealing drugs on school property. By 18, he was drinking alcohol throughout the week. His initial drug of choice after experimentation was marijuana but by 2003 he was also using cocaine regularly. He supported his daily drug habit by working as a labourer. Despite the absence of any criminal record, Mr. Savoie does have a relevant and troubling driving record.

He has not been licensed to drive for many years and clearly has had profound difficulty in accepting that the rules governing the privilege of driving in this province apply to him just as they apply to everybody else. [ 16 ] Mr. Savoie described himself as having lived two lives prior to his arrest: a life as a working spouse and father and a second life in which he used and abused drugs away from the house. Eventually Mr. Savoie began using drugs heavily and would be gone from home for days at a time, creating the predictable toll on the relationship.

His addiction also became apparent at work and his union sent him to a 28 rehabilitation program. Although he completed the program, Mr. Savoie viewed treatment as “for everyone else” and relapsed shortly after returning home. [ 17 ] Mr. Savoie’s arrest on these charges appears to have been a wake-up call. He has taken many actions supporting his assertion that he wants and needs to stop abusing drugs. He has been sober since 2009 and showed off his one-year Alcoholics Anonymous chip to the probation officer who prepared the pre-sentence report. He attends AA and NA meetings three times a week and

completed a second rehabilitative treatment program in the spring of 2010. He has also complied scrupulously with the conditions of his bail, faithfully observing his house arrest for the last year and a half. [ 18 ] Although he is still a member of the union, Mr. Savoie has not worked since he was arrested on these charges. The union is aware of the charges and his status is “inactive.” Instead, he has become the primary caregiver for their young son while Ms. Noseworthy works outside the home. According to Ms.

Noseworthy, their relationship has improved significantly over the last year and they are working through their issues together as a family. He is a loving father to his son as well as to Ms. Noseworthy’s two elder children from a prior relationship. He does not know if he will return to the labourer’s union once he has dealt with his charges. His Alcoholics Anonymous sponsor, who owns a contracting company, wrote a supportive letter for Mr. Savoie and stated that he has offered him full time employment. Mr.

Savoie is also considering returning to school to become a substance abuse counsellor. [ 19 ] The author of the pre-sentence report described Mr. Savoie as open and honest and expressing remorse for these offences. He realizes the risk that he created given his degree of impairment but is grateful that it represented the “rock bottom” that forced him to make real changes in his life. Ms. Noseworthy’s view is that Mr. Savoie’s criminal conduct was the direct result of his substance abuse rather than a true part of his personality.

She advised that he has consistently maintained his sobriety and worked the program since his arrest. [ 20 ] The very positive pre-sentence report was complemented with a collection of letters from friends, family and members of Alcoholics Anonymous expressing support and confirming Mr. Savoie’s substance abuse treatment. A common theme of these letters is Mr. Savoie’s commitment to abstaining from drugs and alcohol and his willingness and ability to change for the better. The letters suggest that Mr.

Savoie has inspired others struggling with addiction with his own perseverance and express great hope for his ability to change both his and others’ lives for the better. [ 21 ] In addition to their profound effect on Mr. Savoie’s outlook on life and determination to overcome his addictions, the offences had significant physical consequences for him.

He suffered very serious injuries including a badly broken jaw requiring the permanent installation of a titanium plate, another steel plate in his face to address a broken orbital bone, many stitches to his head, hands and arm and a serious, disabling injury to his bicep. The injuries were the product of hitting the tree, the deployment of the airbags and the need for police to break the window to forcibly remove him from the car when he was unwilling to open the door. CASE LAW AND RANGE OF SENTENCE [ 22 ] Crown counsel provided four cases of other offenders who struck police with their vehicles.

Although none of these cases is precisely analogous with the instant case, they are helpful in identifying some of the general parameters of the appropriate range in this type of situation. [ 23 ] In R. v. Keevil, [2] the Ontario Court of Appeal affirmed a sentence equivalent to approximately 7 years imprisonment. The circumstances of the offences and the offender were far more aggravated than in the present case.

The court described the police chase as “appalling” and the offender’s conduct as “remarkably vicious and dangerous.” The incident lasted 20 minutes, began with one of the police officers being knocked up on the hood of the offender’s car and ended with him using his car as a weapon to drive directly into the police cruiser. In total, the offender drove at the police and their vehicle three times, twice turned his car around to charge at police vehicles and twice stopped his car so suddenly that the police rear-ended him.

One of the officers that the offender attacked was seriously injured and permanently disabled. As well, this was not the first time that the offender had engaged in similar conduct. Accordingly, despite the offender’s young age of 23, the court of appeal upheld the lengthy penitentiary term, in view of, amongst other things, the necessity to “send a strong message to the community that police officers, who are working to protect society, must themselves be protected in the course of their work.” [3] Unlike the offender in Keevil, Mr. Savoie had no criminal record and did not actually strike any police officers.

Further, none of the police officers in the instant case suffered any injury as a result of Mr. Savoie’s conduct. Nevertheless, the importance of sending a clear and forceful message to the community that the safety of police officers executing their duty must be protected is as applicable here as in Keevil. The roadway carnage that dangerous driving of all kinds can wreak and the unique role that police officers play by essentially placing themselves between the risk of that carnage and the rest of society must be addressed in the sentences imposed.

Hence, exemplary sentences are required to discourage, denounce and deter police chases and the use of a car as an instrument of force. [ 24 ] The case of R. v. Roberts [4] from the Alberta Court of Appeal is similar to Mr. Savoie’s situation in that in both offenders suffered serious injuries in the course of a motor vehicle police chase.

The cases also share the factual similarity of the offenders striking a police car and persisting in their efforts to evade police even after their vehicles had been incapacitated by a collision. [5] Roberts had the additional aggravating factor of the offender actually harming the police. One of the officers that Mr. Roberts struck was gravely affected and her life was essentially ruined. Unlike Mr. Savoie, however, Mr. Roberts did not intentionally ram into the police car.

Notably, the Alberta Court of Appeal distinguished Roberts from the Ontario Court of Appeal decision in Keevil, [6] precisely because it lacked this aggravating feature of deliberate efforts to hit the police vehicle. Mr. Roberts’ personal circumstances were more aggravating than Mr. Savoie’s because he was on bail at the time that he committed the driving offences. Further, in contrast with Mr. Savoie, who pleaded guilty on his preliminary inquiry date, Mr.

Roberts’ guilty plea came “after the twelfth hour,” months after the scheduled superior court trial date and after he had failed to appear repeatedly on critical court dates. Ultimately, the court of appeal sentenced Mr. Roberts to 3 ½ years imprisonment for flight from the police causing bodily harm plus an additional six months consecutive for possessing the stolen truck that he had been driving. [ 25 ] The Crown also relied upon another Alberta decision, R. v. Kidd, [7] that shares some commonality with the instant case.

In both cases, the offender was affected by drugs or alcohol, drove directly at a police officer who was on foot, led the police on a chase and only stopped driving when his vehicle became inoperable. Both offenders had also struggled with alcohol problems and pleaded guilty out of remorse. Mr. Kidd, however, had a serious and related criminal record. Taking into account Mr. Kidd’s early guilty plea, the court sentenced him to 18 months’ imprisonment, making the following observations that are highly apt in the instant case:

The aggravating circumstances outweigh this significant mitigating factor. [8] The accused voluntarily consumed alcohol so that his ability to drive was grossly impaired. Despite this he entered a motor vehicle and drove it. An officer tried to stop the vehicle driven by the accused. Mr. Kidd then drove at the officer in a manner which caused the officer to take evasive action. Thereafter, he drove a vehicle causing danger to himself, other users of the roadway, and the police who chased after him. Fortunately, he was apprehended with[sic] injury to anyone, but this had little to do with his actions.

The tragedies caused by those who drive in an impaired state are well recognized. Police officers are expected to apprehend individuals who drive in an impaired state because of the danger these individuals present. Officers who place themselves in harm’s way to apprehend individuals must be protected by the courts. Also, the carnage caused by drivers attempting to evade police is well documented. [9] Although alcohol impairment is not an element of the offences to which Mr.

Savoie pleaded guilty, the common thread in these cases is the use of the potentially deadly force of a vehicle to attack the very individuals who are charged with protecting the public from the carnage of criminal driving offences. Society’s renunciation and denunciation of this conduct must be clearly communicated with potent consequences. [ 26 ] The final case submitted by the Crown is R. v. Knuff. [10] The offender in Knuff also led the police on a chase, although in his case he was fleeing the scene of a residential break and enter. As in Mr. Savoie’s case, Mr.

Knuff drove up on the grass in a residential area. He also collided with a police cruiser and kept going. The chase, which took place in the middle of the day, created grave risks for the safety of the offender, the police and the public. As the sentencing judge stated, “vast numbers of the community [were] seriously endangered by egregious conduct… It is a stroke of good fortune no one was killed.” [11] In some respects, the circumstances of the offence in Knuff were less aggravated than in the instant case since it involved no deliberate efforts to strike the police.

On the other hand, the police chase in Knuff was instigated by the offender’s efforts to evade capture for residential break and enters. Further, Mr. Knuff, at just 25 years of age, had a criminal record which included convictions for failing to comply with probation, failing to appear in court, possession over and under, breaking and entering, for which he served 30 days imprisonment and failing to stop after an accident. Crown counsel submitted that Mr. Savoie demonstrated an analogous disregard for the law by continuing to operate a motor vehicle despite Provincial Offences Act suspensions.

While I concur that Mr. Savoie’s obstinate insistence on driving in flagrant violation of the Provincial Offences Act is an aggravating factor and must be taken into consideration, I do not accord it the same weight as Mr. Knuff’s unenviable criminal record and prior opportunities to learn from imprisonment for criminal offences. Like Mr. Savoie, Mr. Knuff had shown his remorse and potential for rehabilitation not only with his guilty plea but also in his strict compliance with his house arrest bail and extensive efforts to better himself while on release. The sentencing judge expressed confidence that Mr.

Knuff would be a productive, responsible citizen and continue into the future without further criminal involvement. Nevertheless, he concluded that only a penitentiary sentence was proportionate to the gravity of the offence.

After subtracting two months’ credit for pre-trial detention and an additional 6 months to reflect 21 months under house arrest, the sentence going forward was 22 months’ imprisonment plus 12 months’ probation. [ 27 ] Having reviewed the cases submitted by Crown counsel as well as other authorities referred to in the jurisprudence, [12] the range for this type of offence in which an offender engages the police in a dangerous motor vehicle pursuit would appear to be mid- reformatory to penitentiary terms of imprisonment.

A very general, non-exhaustive list of aggravating and mitigating factors affecting where a particular case may fall within this range would include: • Remorse; • The offender’s prior record and background; • Steps that the offender may have taken towards rehabilitation; • The length of the police chase and the dangerousness of the actual driving; • Whether the offender struck police officers or police vehicles; • Whether other members of the public were put at risk by the offender’s conduct; • The time of day and location of the driving (for example, if the offence occurred at lunchtime near a public school crossing that would be more aggravating than if it committed in a deserted industrial area in the middle of the night); • Whether any police officers or members of the public were injured as a result of the offender’s conduct; • Whether the offender intentionally aimed his vehicle towards police officers or police vehicles; • Whether the offender himself was injured in the incident; • Whether there was any property damage as a result of the offender’s conduct; • Whether the offender was fleeing police because he had been apprehended committing another offence or was attempting to evade police investigation; • Whether the offender was intoxicated by drugs or alcohol; and • Whether the offender ceased driving and surrendered on his own or was forced to stop driving by a collision or other factor beyond his control such as police intervention or damage to his own vehicle.

I wish to be clear that when I delineate a “range,” I do not view it as set in stone. Each sentence must, of course, be individualized and there may be cases where a much more lenient or harsh sentence is appropriate depending on the circumstances.

MITIGATING AND AGGRAVATING FACTORS IN MR. SAVOIE’S CASE [ 28 ] There are some highly significant mitigating factors in this case. I am deeply impressed by Mr. Savoie’s genuine dedication to his own rehabilitation and the concrete steps he has taken to make that rehabilitation real. I am satisfied that he has successfully sought treatment and indeed become a role model to others who battle ferocious addiction and lose everything. Not only that, Mr. Savoie has attracted the respect of other members of his community and has employment waiting for him when he is ready.

He has complied fastidiously with his house arrest conditions and used that time not only to address his own addictions but also to fulfil his role as devoted and loving father while enabling his spouse to work outside the home. The house arrest has been stringent and Mr. Savoie has abided by those restraints faithfully and without complaint for a year and a half. He has accepted the serious injuries that he himself sustained in the course of the offence and merely expresses deep remorse for what he has done.

That remorse was communicated not only through his guilty plea which, while not an early plea, was still entered before a trial date, but also through his words at the sentencing hearing. Mr. Savoie made it clear that he is sorry for what he did and prepared to pay the necessary debt to society. He has come a long way, is grateful for the support and opportunities that his friends and community have given him and aspires to become an outstanding citizen. [ 29 ] These considerable mitigating factors must be balanced with some equally compelling aggravating factors, including the following: • Mr.

Savoie deliberately aimed his vehicle at a police officer and rammed a police car. Only good fortune, quick thinking and fast acting prevented the potential for further grievous injuries and consequences. I note, however that, thankfully, no police officers were physically injured as a result of these offences; • The chase took place in a residential area behind a housing project, albeit later in the evening, and there was no evidence that members of the public were placed specifically at risk; • Although he had no criminal record, Mr.

Savoie had repeatedly and determinedly disobeyed his Provincial Offences Act driving suspensions, demonstrating significant disrespect for the constraints of the law; • Mr. Savoie’s driving on that night was dangerous and out of control; and • Mr. Savoie only stopped driving when his car hit a tree. In short, this was not a game of “bumper cars” as defence counsel would suggest. This was dangerous and assaultive driving that jeopardized the safety of the public and the police.

SENTENCE [ 30 ] As both counsel and the applicable jurisprudence establish, deterrence and denunciation are paramount sentencing principles where an individual drives dangerously and uses his car to attack the very police officers who risk their lives to protect the rest of the community against such conduct. Rehabilitation must also play a role but in the circumstances of this case, while the sentence is intended to promote Mr. Savoie’s continued rehabilitation, that role must be secondary to the protection of the public.

A penitentiary sentence is required to reflect proportionality with the gravity of the offence and the degree of responsibility of the offender. In this case, however, I am satisfied that the lowest end of the penitentiary range is appropriate, given the mitigating circumstances. Accordingly, the sentence is intended to be equivalent to two years imprisonment. [ 31 ] I am satisfied, however, that this is a case where it is appropriate to deduct credit for time served under stringent bail conditions from that period of imprisonment.

As Justice Rosenberg stated in R. v Downes , [13] “a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach.

In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge… The amount of credit will depend on a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.” I deduct four months from the total sentence in view of the year and a half that Mr. Savoie spent on house arrest.

As I have repeated several times, the conditions of that house arrest were highly constraining. Other than treatment, Mr. Savoie was at home. He observed his bail conditions conscientiously and made the most of that time to advance his own rehabilitation. As a result, he is a changed man. The sentence imposed at this point will therefore be 20 months imprisonment plus two years probation. There will also be a three-year driving prohibition, a s. 109 weapons prohibition for 10 years and a DNA order. Released: Reasons delivered orally on May 17, 2011, released in writing on May 19, 2011 Signed: “Justice M.H.

Bloomenfeld”