R. v. Hogue, 2019 MBPC 76

CITATION: R. v. Hogue , 2019 MBPC 76 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Wall ) ) for the Crown - and - ) ) ) Daniel Hogue ) ) P. Smith for the Accused ) ) ) Reasons for Decision ) Delivered: November 26, 2019 CORRIN, P.J. INTRODUCTION [ 1 ] Mr. Hogue, the offender, is charged with knowingly failing to stop his vehicle and give his name and address, and offer assistance to an injured person pursuant to s. 252(1.2) of the Criminal Code .

He pled guilty to the charge. [ 2 ] The circumstances of the incident, which were incidentally captured by a Winnipeg traffic camera (exhibit 2), were as follows: On September 28, 2018, • A truck driven by Mr. Hogue was waiting to turn right from westbound River Avenue onto northbound Osborne. • When his light turned green the pedestrian light for those crossing Osborne also lit up. • Mr. Peters, the victim in this case, rightfully began to proceed in a westbound direction across Osborne. • As he did this, Mr. Hogue turned right, and presumably without seeing Mr.

Peters, literally ran Peters over with both his front and back tires. • Although he later told police that he thought he hit the curb, the traffic cam video shows that the vehicle was not near the curb when it made the turn and ran over Mr. Peters. • Following the accident Mr. Hogue continued northbound on Osborne, making no attempt to stop. • The vehicle directly behind the accused followed him to the intersection at Roslyn where the driver informs Mr. Hogue that he ran someone over. • Mr.

Hogue then drove into the parking lot of a corner store. • After a couple of seconds, he then reverses, almost running over a cyclist. • He then stops for another five or so seconds before backing out and driving away. • Court was told that bystanders had called 911 and that paramedic assistance arrived soon after the accident. • Mr. Hogue went to a Winnipeg Police Service office the following day and reported his involvement in the accident. [ 3 ] The principle issue in this case relates to whether Mr. Hogue is eligible for a conditional sentence order (“CSO”).

The Crown took the position that he should not be granted such an order, even if the Court were to find in the offender’s favour respecting the eligibility issue. [ 4 ] Defence, arguing that the offender had succumbed to “panic”, suggested that Mr. Hogue’s sentence should be a 9-month CSO, observing that a real jail sentence, if imposed, should, on the basis of the Proulx decision, be substantially less, somewhere between three and six months.

Crown counsel suggested that the range of available sentence was three to 24 months and asked the Court to incarcerate the offender for nine months, emphasizing that his failure to stop or return to the scene of the accident, had frustrated police efforts to

investigate the incident on a timely basis. [5] While the Crown agreed with Defence that the offender, who possesses no criminal history, was of general good character, heemphasized the need for deterrence. In such respect Crown counsel drew the Court’s attention to several cases: R. v. Dhaliwal, 2012 MBQB 155 R. v. Conty, 2016 ONCJ 211 R. v. Theather, 2016 MBQB 157 R. v.

Didiechko, 2016 ABQB 552 [6] The Crown made particular reference to the remarks of Justice Robert Gee in the Conty case, drawing the Court’s attention toparas. 21 and 22, which deal with the aggravating nature of the Crown’s central concern: the frustration of investigation into Mr.Hogue’s prior alcohol consumption. Mr. Hogue, like Mr.

Conty, had told investigators, after he turned himself in the day after theincident, that he had consumed alcohol prior to the accident, but that such consumption was limited to only a single beer. [7] The Crown further emphasized its main concern by reference to paras. 21 and 23 of the Didiechko decision where JusticeA.W.

Germaine reminded that leaving the scene of an accident is “often an attempt to mask the reality of impaired driving”, that “... adishonourable driver would view it better to take his chances on not being caught or being caught only after sobering up.” The Courtfound para. 23 to be particularly pertinent to the case at bar: To wrap up this discussion about hit-and-run, it is clear that the legislative intent of these sections was to emphasize general and specificdeterrence and denunciation. Many hit-and-run drivers are not career criminals.

They often come from community respected families,and often (with the exception of the crime before the court) would be respected as law-abiding citizens. They reflect a lack of judgmentcoupled with a potential character flaw. Those individuals are often incensed when the public rightly identifies their conduct asdangerous criminal behavior. This type of convict, who would not identify himself as a criminal, and would often feel insulted by thatlabel, can be deterred by significant sentences. The courts can, if they have the willpower to do it, create significant disincentive to fleethe scene of an accident.

Denunciation and deterrence must anchor a fit and proper sentence. [8] Similar observations were made in both the Dhaliwal and Teather cases, where CSO applications were rejected by Manitobasuperior court judges. [9] This Court also agrees with the Crown that the significant question in this case is with respect to whether a conditionalsentence would be consistent with the fundamental purpose and principles of sentencing. The case law has well established that theoffence of failure to stop at the scene of an accident is serious in nature.

The jurisprudence indicates that sentencing objectives ofdenunciation and general deterrence are of paramount importance in determining the appropriate disposition in these types of situations.This is so even where there is no other related criminal offence or Highway Traffic Act offence, such as is the case in this matter. I quotethe instructive remarks of Justice McKelvey as found in para. 55 of R. v. Dhaliwal in such respect; the context of her comments beingdicta found in R. v. Schmitt, 2011 ONCJ 546: [31] The Court of Appeal has characterized the offence of “fail to remain” as a serious offence. In R. v.

Ramdass, [1982] O.J. [No.] 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 these 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 [a] conditional sentence with appropriate strict conditions can meet the principles of denunciation and deterrence. The questionis whether in this particular case a conditional sentence would be a just and fit sentence, meeting the fundamental purpose and principlesof sentencing 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 him orherself and give assistance to any injured party. This allows for any criminal investigation to occur without delay, resolves issues of civilor criminal liability.

Just as importantly, there is a simple duty as a human being to show care and respect for those who may have beeninjured 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. [10] As did Justice McKelvey, I find that a conditional sentence would not meet the fundamental purpose and principles of

sentencing as outlined in sections 718 to 718.2 of the Criminal Code . I therefore also adopt the superior court opinions expressed in Schmitt and Wieczorek , which incidentally can be found at 2010 ONCJ 582 . [ 11 ] The Court is of the view that denunciation and general deterrence would not be served in the circumstances of this case because the offender’s actions were particularly egregious and morally culpable because his truck not only struck but also drove over - both a front and a rear tire - the victim’s body, causing extremely serious injuries.

In such respect, the Court also agrees with the Crown that the offender’s moral culpability was heightened by the circumstances of his departure from the scene of the accident, because another motorist had advised him beforehand that he had struck a pedestrian. Indeed, exhibit 2, footage of the accident captured by a City of Winnipeg Traffic Camera, clearly shows the informant’s vehicle apparently attempting to keep the offender from driving away, evidence that Mr.

Hogue had more or less made a measured decision to drive away as opposed to having done so in a panicked state in the heat of the moment as he alleges. [ 12 ] In Teather , a case where both dangerous driving and fail to stop charges were in play in the context of a seemingly purposeful non-accidental collision with a firefighter who was trying to remove the accused’s vehicle from a restricted emergency area, Justice Toews ordered two consecutive three-month sentences.

Teather, who was 20 at the time of the incident, provided psychiatric evidence that he suffered from an anxiety disorder and was only able to focus on flight when confronting what he had done because of the strong impulse to flee the stressful situation he had precipitated. [ 13 ] In Teather , the Crown had recommended the sentence pronounced by Justice Toews while Defence had suggested a suspended sentence and 240 hours of community service or a conditional sentence. [ 14 ] Although the Court recognizes that each case’s and offender’s circumstances are unique, the Court is of the view that a 90-day sentence, the agreed upon bottom of the range, would also be appropriate in reference to Mr.

Hogue’s offence. The Court also prohibits the offender from driving any motorized vehicles for a period of 12 months. “Original signed by:” CORRIN, P.J.