R. v. Daoud, 2011 ONCJ 192

Citation: R. v. Daoud , 2011 ONCJ 192 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SAMIRA MOHAMMAD DAOUD Before Justice C.S. DORVAL Reasons for Judgment released on March 18, 2011 Ms. Julie Scott............................................................................................................. for the Crown Mr. Robert Carew ................................................................................................ for Samira Daoud DORVAL, J.: [ 1 ] On December 15, 2010 Ms.

Daoud entered a plea of guilty to impaired driving causing the death of Alex Hayes, as well as breaches of probation and undertaking and one count of mischief. The facts underlying these offences were not placed before me until February 28, 2011, date set for the sentencing hearing. The evidence is as follows. [ 2 ] On September 9, 2010 Alex Hayes, 16 years of age, completed his shift at Foodland at 9:00 p.m. and was travelling on his bike to return home. He was wearing dark clothes.

He was struck from behind by the accused and his body was thrown some 39 meters into the ditch in front of 5729 Bank Street, a rural area of Bank street north. The driver did not stop and his body was not found until 00:13 on September 10. His bicycle was found at the end of the laneway at that address, completed destroyed. The accident reconstruction officer was not able to calculate the speed of travel at impact, but was able to note that there was no physical evidence of excessive speed and no evidence of any evasive manoeuvres taken.

Alex’s helmet was in his backpack, but given the extent of the injuries, death was presumed to be almost instantaneous. [ 3 ] The accused Ms. Daoud was arrested for impaired driving shortly after 9:30 pm on September 9, after a number of persons had called 911 with respect to Ms. Daoud’s driving. Three drivers had to take evasive measures to avoid head-on collisions with her, two other drivers had to avoid rear end collisions, and one witness observed her cut across several lanes of traffic, go over a median and lose control.

Numerous witnesses observed her vehicle swerving, numerous witnesses observed smoke emanating from her vehicle. Cst. Proulx responded to the 911 calls and observed her vehicle on the shoulder. He stopped his vehicle and was about to exit when the truck driven by Ms. Daoud collided with his cruiser lightly. He ran to the driver’s side of the vehicle and issued orders which were not immediately complied with. He had to assist her to exit the vehicle. He confirmed that this was the vehicle subject to the 911 calls, noted the odour of alcohol on the accused’s breath and her slurred speech and placed her under arrest.

He transported the accused to the station, arriving at 21:57. During transport, the accused offered the arresting officer sexual favours in exchange for letting her go. She displayed mood changes and became aggressive. [ 4 ] Once at the police station, she was provided the opportunity to contact counsel and broke the telephone by banging it repeatedly. She provided three samples of breath which were analyzed and gave the following results: at 23:13: 269 mgs of alcohol per 100 ml of blood, at 23:37: 234 mgs/100ml, and at 23:58: 230 mgs/100 ml of blood. She was lodged in a cell and Cst.

Proulx was then advised that a cyclist had been found in the ditch. The investigation revealed that the truck driven by Ms. Daoud had two worn front tires, front end damage, the passenger side door mirror was bent back, there were dents to the door, the windshield was cracked the entire width. The vehicle essentially failed a mechanical verification. The debris left at the scene of the collision with the bicycle was matched to the vehicle. The vehicle itself was searched and a number of empty Budweiser beer cans were found in the back, an opened

bottle of wine was located in the front compartment, as well as an orange alcoholic drink which was in the driver’s side cup holder. [ 5 ] Ms. Daoud stated to officers in the cell block that she was vomiting blood, but when Cst. Spingle offered to drive her to the hospital, she used profanity and refused to attend the hospital. Ms. Daoud was interviewed in the afternoon of September 10 and denied ever having hit anyone and disbelieved the officer that she had. She stated that she had not blacked out the night before, that she only does so when she drinks Tequila. [ 6 ] The investigation revealed that Ms.

Daoud went to a local restaurant around 5-6 o’clock on September 9, 2010 and ordered food. Mr. Weisho left at 6:00 p.m. to make a delivery and upon his return, noted that the accused was consuming wine with her food and she was being rude. He admonished her with respect to her bringing in alcohol and then offered to drive her where she wanted to go. He drove her to Bar 31 where he had Tequila with her then left. Ms. Mpendubundi is the owner of that bar and offered to drive Ms. Daoud home after she had dropped off another customer. Upon her return, Ms.

Daoud had left and the truck was no longer in the parking lot. [ 7 ] At the time of this occurrence, Ms. Daoud was on probation with conditions to keep the peace and be of good behaviour and to continue the treatment program that she was involved with. She was also on bail to abstain from the possession and consumption of alcohol and to keep the peace. [ 8 ] Ms. Daoud’s driver’s license history was put before me. She was issued a G2 license in 1995, but it expired in 1999 and was never renewed. When she was convicted of impaired driving in 2006, she was prohibited from driving until 2009.

Her driver’s license was suspended in 2009 until she completed the remedial measures program required following such convictions. She never did, therefore continued to be suspended and without a license at the time of this offence. [ 9 ] Her criminal record was filed as tab 17 of exhibit 5. It is replete with breaches of court orders. Occurrence reports related to her convictions have been filed as tabs 18 to 25 of exhibit 5. The breaches mainly involve the consumption of alcohol. The conviction for impaired driving of 2006 is of particular significance to this sentencing.

I did not have the benefit of any transcripts of the proceedings which led to the convictions on her record. I advised counsel that I would listen to the tapes of some of those proceedings. I have listened to the pleas entered on August 24 th , 2006, as well as the conviction under s.218 of the Criminal Code and the conviction on breaches in August of 2010. Of note is the blood alcohol concentration of 259 mgs of alcohol on the impaired driving conviction. The accused admitted to the sentencing judge on that date that she had been addicted to alcohol for four years.

The Court applied pre- disposition custody, imposed a fine and probation. The probation order included conditions to attend counselling for substance abuse. In 2008 Ms. Daoud entered a plea of guilty to child abandonment which had occurred in 2005. On that occasion, Ms. Daoud who had been drinking with friends at home, chose to leave her two year old child alone at home to go with friends to a drinking establishment situated 30 minutes away. A friend called her sister at one point, but Ms. Daoud did not return to the apartment until 5:30 a.m.

The Court was told that this event was what had brought the alcohol addiction to light and at the time of the plea, Ms. Daoud was in a rehabilitation program. In imposing sentence, the Court noted that the fact that she was addressing her alcohol addiction led to the conclusion that imprisonment was not necessary. Probation was imposed with conditions to continue counselling. In August 2010, Ms. Daoud appeared before the Court on a breach of her conditions of probation.

Once again, the Court was told that she was completing a rehabilitation program at Amethyst House and she was placed on a probation order to continue treatment. [ 10 ] THE ACCUSED Ms. Daoud is 41 years of age. She is originally from a small village in Ethiopia. She was publically circumcised at a young age and her marriage to a much older man was arranged when she was 12 years old. She was required to take care of her 9 siblings while her parents were away. She was repeatedly raped as a young woman.

The psychological consequences of this background are evident to the social workers in Canada who have tried to assist Ms. Daoud. Although the Court did not have the benefit of a pre-sentence report, I did receive letters from Amethyst House, a women’s addiction center. The letters outline the issues she faces, the effort she has put into rehabilitation, and describe her as a kind and compassionate woman.

[11] I have received a letter written by Ms. Motiuk, at the Ottawa Carleton Detention Center. She advises that Ms. Daoud hasbeen actively working on issues while incarcerated on this offence and has expressed deep regret and remorse for her actions. Since herarrest, Ms.

Daoud has continued counselling over emotional distress experienced over having caused the death of the young person [12] POSITIONS OF THE PARTIES The Crown seeks a period of imprisonment in the range of 7 to 10 years, in view of the aggravating factors in this case. [13] The Defence submits that the range supported by the caselaw is that of 3 to 5 years, but that given the factors in this case thatfour years would be appropriate. [14] THE LAW Counsels have both provided casebooks in support of their positions.

I have reviewed the cases in order to ascertain what sentences havebeen imposed by trial courts in similar circumstances. I found the cases of R. v. Linden (2000) (ON CA), O.J.No2789, R. v. Velikov

(1991) O.J.No 1347, R. v. Sandreswaren

(2001) O.J. No.3933 and R. v. Boyce

(2010) O.J.No 2004 to be of someassistance in this comparative analysis. However, a number of the cases provided to me were quite dated. This is quite significant givenrecent Ontario Court of Appeal decisions. [15] In R. v. Junkert (2010) 2010 ONCA 549 , O.J. No. 3387 our appellate court upheld a sentence of five years on a firstoffender convicted of impaired causing death and stated at paragraph 46: “In my view, a sentence of five years for this offence cannot be said to be “a substantial and marked departure” from the sentencesordinarily imposed on similar offenders for similar offences.

In recent years there has been an upward trend in the length of sentencesimposed for drinking and driving offences. The reasons for this trend can be attributed to society’s abhorrence for the often tragiccircumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.” [16] And at paragraph 49: “While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, isincremental and that it quite properly continues the very gradual trend that has taken place over recent years.” [17] In R. v.

Kummer (2011) 2011 ONCA 39 , O.J. No. 234 our Court of Appeal once again reiterated that the range ofsentence has increased. At paragraph 15 the Court noted: “As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability,the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences of four and fiveyears for such offences in R. v. Ramage and R. v. Junkert.”

[18] I therefore attach little weight to decisions which predate the latest pronouncements of our appellate court on this very issueand prefer to outline the circumstances in the three appellate decisions in the last year. [19] In R. v. Ramage (2010) 2010 ONCA 488 , O.J.No 2970 the trial judge sentenced the accused to four years ofimprisonment following convictions by jury of impaired driving causing death, causing bodily harm and dangerous driving causingdeath and bodily harm.

The accused was a first offender that was described as an outstanding member of the community whose remorsewas found to be deep and genuine. The deceased, a passenger in his vehicle, was a friend. The deceased’s family did not want Mr.Ramage to be incarcerated. The Ontario Court of Appeal noted that the trial judge had correctly identified general deterrence as thepredominant concern and thereby correctly applied R. v. McVeigh (1985) (ON CA), 22 CCC(3d)145.

The Courtunderlined the importance of deference to the trial judge’s decision given the judge’s task of balancing of competing interests, and thejudge’s particular position in gauging the interests of his/her community. In so doing, the Court quoted the Supreme Court of Canada inR. v. M(C.A.)(1996) (SCC), 1 S.C.R. 500 at paragraph 91: “Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered theconsequences of the offender’s crime.

As such, the sentencing judge will have a strong sense of the particular blend of sentencing goalsthat will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is adelicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender andthe circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” [20] In R. v.

Junkert (supra) the accused was convicted of impaired driving causing death and dangerous driving causing death. The accused failed to negotiate a curve, his vehicle went over a curb, crossed a grassy area, went onto a sidewalk, struck the deceasedwho was jogging, then struck a vehicle parked in its laneway, then struck a concrete street lamp pole and re-entered the roadway andtravelled a further distance before coming to a stop. The victim was a 37 year old mother of four children.

The accused’s blood alcoholconcentration was at the time of the accident would have been between 130 and 170 mgs of alcohol per 100 ml of blood. The OntarioCourt of Appeal noted that trial courts should be cautious in applying “a range” to these cases given the different circumstancessurrounding each one. Once again the Court noted that the trial judge had correctly identified the main principles of sentencing in thesematters to be that of denunciation and general deterrence.

The Court noted that the impact of this offence on the deceased’s family andstated that the sentence should reflect the serious consequences of the accused’s decision to drive while impaired. [21] In R. v. Krummer (2011) 2011 ONCA 39 , O.J.No 234 the accused entered a plea of guilty to three counts ofimpaired driving causing death, two counts of impaired driving causing bodily harm and the equivalent dangerous driving offences. Theaccused’s blood alcohol concentration was twice the legal limit, he was speeding and failed to stop at an intersection and struck a vehiclein the intersection.

One of his two passengers was killed. The driver of the vehicle he struck was seriously injured, but managed to getout of his vehicle then engulfed in flames. He attempted to get his son and his son’s friend out of the vehicle, but was pulled away byby-standers. The victim impact statements from the victims’ families showed the devastation of three families. The trial judge had alsohad the benefit of a number of letters in support of the accused. After reviewing the recent decisions of R. v.

Ramage (supra) and R. v.Junkert(supra) the court stated at paragraph 19: “Ramage and Junkert do not and cannot cap the sentences available for this kind of offence.” [22] The Court noted the maximum sentence for this offence in the Criminal Code, the caution to trial courts about strictapplication of ranges, and the precedents for more severe sentences for this type of offence. The Court noted the impact on threeseparate families as particularly catastrophic.

Although the accused did not have a criminal record, he did have a driving record whichshould have impressed upon him the danger he posed when driving in an altered state. The sentence of eight years was upheld. [23] In the last twelve months, therefore, the Ontario Court of Appeal has upheld sentences ranging from four years for a personwith an exemplary background to eight years for a youthful offender who caused the death of two children and a young person. Theprinciples that emerge from these decisions are quite clear. Although all principles of sentence enumerated in

section 718 of theCriminal Code must be considered, general deterrence and denunciation remain the most important principles of sentencing in thesematters, and the balancing of the competing interests in each case must be carefully completed without rigid adherence to “ranges” of

sentence. [ 24 ] ANALYSIS The aggravating factors in this case are numerous. They are the following: I. Ms. Daoud has a prior criminal record for impaired driving, as well as 13 counts of breach of court orders mainly related to her consumption of alcohol. II. She was on probation at the time of this offence, having been sentenced one month prior to this occurrence. III. She was on judicial interim release at the time of this occurrence and subject to a condition to abstain from the consumption of alcohol. IV.

She was driving while her driver’s license was suspended because she did not comply with remedial measures enacted by our province to deal with drinking and driving. V. Her blood alcohol concentration was very high; almost triple the maximum legal amount for driving. Her degree of intoxication was very high. Not only is this reflected in the driving she displayed, but also in her behavior upon her vehicle being stopped. Not only did her vehicle move forward into the police cruiser, but she was unresponsive to police commands.

Upon arrest, she offered sexual services to the police, then became aggressive and made racial slurs towards the officer who was a black male. She is also black. At the station, she broke the telephone used to exercise her right to counsel. VI. The offender told the police that she was not aware that she had struck anyone. This is not contradicted.

In such circumstances, leaving the scene of the accident is not an aggravating factor, but the fact that she could have struck a cyclist thereby projecting him some 39 meters away without realizing her vehicle had come in contact with something or someone is further evidence of her degree of intoxication. VII. She was offered a ride home and chose to drive. VIII. She had opened alcohol in her vehicle. The bottle of wine had a cork that was obviously partly reinserted in the neck of the bottle at some point, and it is unlikely that the offender was drinking from that bottle during the driving.

However, there was alcohol in the orange drink placed in the cup holder on the driver’s side of the vehicle. IX. The driving exhibited was extremely erratic. She drove in the on-coming traffic lane on several occasions, across lanes of traffic, over one median, lost control at an intersection. A number of witnesses had to take evasive actions to avoid head- on collisions. She struck the deceased’s bicycle without leaving any evidence of braking. X.

The offender has been given many opportunities to benefit from rehabilitative sentences to deal with her addiction to alcohol and continues to show inability to sustain sobriety. [ 25 ] The horrendous impact of the death of Alex Hayes on his family and the community. Alex was a very unique and special young man who supported his mother in every way he could. They were very close and his loss has left his mother in emotional turmoil which affects every aspect of her life. The extended family has witnessed the devastation that the death of Alex has caused.

In the greater community, Alex’s death has had a considerable impact on the students at his school as well as the community at large. [ 26 ] I find the accused’s plea of guilty an important mitigating factor. As Mr. Carew submitted, there may well have been some issues with respect to causality raised at trial, yet Ms. Daoud has chosen to enter a plea of guilty. I accept that she is genuinely remorseful for her actions and that her plea and subsequent attitude at the detention center are indicative of that remorse. [ 27 ] Ms.

Daoud did have a horrendous childhood which continues to plague her with psychological issues which have led to her drinking. The Court does not condone, but understands why she is addicted to alcohol. Once again, however, I must distinguish the addiction to alcohol from the act of driving. Ms. Daoud first started seeking substance abuse treatment in 2004 and has successfully completed many addiction programs since, but eventually relapses. As noted by counsellors at Amethyst House, relapse is not unusual in the field of addiction therapy.

It does, however, place the offender in the position of being quite aware of the risk that she poses when she does relapse.

[ 28 ] The nature and frequency of Ms. Daoud’s contacts with the police over alcohol related issues do show that when she relapses, she drinks to such excess that she poses a danger for herself and others. Ms. Daoud would have been aware of that when she was driven from the restaurant to Bar 31. She would have been aware of her condition when she was offered a ride home by the owner of the bar. She chose to drive her vehicle and put other lives at risk. That decision is independent of her addiction to alcohol. Her actions in this context carry a high level of moral blameworthiness. [ 29 ] Ms.

Daoud’s prospects for rehabilitation in my view are poor. She continues to show interest in combating her addiction to alcohol and continues to attend programs to assist her to do so. However, she consistently relapses and once she does, shows total loss of control over her drinking or her actions. [ 30 ] General deterrence and denunciation are the most important principles of sentencing that I must apply in this case, particularly since the impaired driving has caused death. I must also apply these principles in the context of this community.

The nature and character of Alex Hayes has attracted the community’s attention in this case. The community has felt his loss. The number of citizens who chose to attend the sentencing hearing, in support of the family, reflects the community’s interest in the Court’s decision on sentencing. [ 31 ] However, I feel I must address the message on T-shirts worn by several people in the public gallery. In our justice system, victims of crime and their family may address the Court with respect to the financial, psychological and emotional impact on them caused by the offence.

In this particular case, several members of Alex’ extended family did just that. That input is meaningful in a sentencing hearing. Victims are not permitted however to make submissions as to what is an appropriate sentence as that right rests with legal counsel only. It was therefore inappropriate for members of the public and family members to wear shirts indicating “More time for the crime”. This is akin to a political protest in the courtroom, in the same manner as if they had attempted to hold up placards, which would never have been permitted.

Given the sensitivities of this case and the trauma suffered by the victim’s family, I chose not to ask them to leave the courtroom. This hearing must be fair to all the parties involved including the accused who has admitted her guilt. Those messages created an inappropriate atmosphere in the courtroom. I wish to make plain to all concerned that my decision in this matter was based solely on the facts, the arguments of counsel and my review of the case law which sets the range of sentencing for this type of offence involving a fatality.

This type of demonstration should never occur again. [ 32 ] This case is not at either end of the spectrum of recent cases reviewed by the Ontario Court of Appeal. Ms. Daoud is not an exemplary citizen. Although her record is mainly alcohol related, she continues to display outrageous behaviour when under the influence of alcohol. The numerous aggravating factors outlined above show a high degree of moral blameworthiness. Indeed, given the driving which occurred either shortly before or shortly after her striking of Alex Hayes, it is surprising that Ms.

Daoud did not cause any other serious accidents before she was stopped by the police. But for the evasive actions of other drivers, she would have. [ 33 ] Considering all of the factors and competing interests, I sentence Ms. Daoud as follows: -on the s.255 : 6 years -on the s. 733.1: 1 day concurrent (3 months pre-disposition custody) -on the s.145 : 1 day concurrent (3 months pre-disposition custody) -on the s. 430 : 30 days concurrent [ 34 ] I prohibit Ms. Daoud from driving for a period of 10 years.

Released: March 18, 2011 _________________________________ The Honourable Justice C.S. Dorval