2022 QCCQ 6791, 2022 QCCQ 6791

R. c. Darkwa 2022 QCCQ 6791 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N° : 500-01-224389-210 500-01-222854-215 DATE : OCTOBER 14, 2022 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. HIS MAJESTY THE KING Prosecution v. deon ofosu DARKWA Accused JUDGMENT ON SENTENCE [ 1 ] Deon Osofu Darkwa pleaded guilty to obstruction of justice (section 129 Cr. C.) and to dangerous driving (section 320.13 (1) - 320.19 5)

a) Cr. C.) on August 3, 2021 (file 500-01-224389-210), and to failing to stop a motor vehicle while being pursued by a peace officer (section 320.17-320.19

(5) a) Cr. C.) and dangerous driving (section 320.13(1) – 320.19

(5) a) Cr. C.), on August 25, 2021 (file 500-01-222854-215). The facts [1] File 500-01-224389-210 [ 2 ] On Tuesday, August 3 rd , 2021, at 3:48 PM, the police received a 911 call from Ms. M. who was driving herself to the police station while she was being pursued by her boyfriend, “Brent Johnson” driving a black Range Rover. Soon after, police officers spotted the two vehicles in front of police station 49. Despite her call for assistance, Ms.

M. refused to cooperate any further with a police investigation. [ 3 ] The police then approached the driver of the Range Rover who handed them an Ontario driver’s license in the name of “Brent Johnson”, but they quickly realized that the license was a fake. The driver, who was in fact Mr. Darkwa, refused to exit the vehicle, becoming increasingly agitated to the point where Officer Laramée was prepared to use pepper spray as a precaution. While the officer had one hand inside the vehicle, Mr. Darkwa started the engine and accelerated rapidly. Officer Laramée was able to spray Mr.

Darkwa in the face with the pepper spray, but Mr. Darkwa continued to drive, going up on the sidewalk and forcing a woman with a stroller to quickly move out of the way to avoid being hit. Mr. Darkwa drove through a red light, onto René Levesque Blvd. (a busy downtown street). [ 4 ] The traffic at that time, close to rush-hour, was fairly heavy but moving along. The officers estimated that the accused’s car sped up to approximately 80 km an hour as they lost sight of it. Their investigation only revealed the identity of the driver as Mr. Darkwa, a few weeks later.

File 500-01-222854-215 [ 5 ] Three weeks later, on Wednesday, August 25, 2021, at 5:25 PM, before his arrest for the incidents of August 3 2021, Mr. Darkwa was stopped for parking in an illegal area on Guy Street near St. Catherine Street West. [ 6 ] When asked to provide his papers, Mr. Darkwa suddenly drove away, forcing the officers to move out of the way in order to avoid being hit by the vehicle or have it drive over their feet. [ 7 ] A police chase ensued that lasted over thirty minutes. Several police officers were deployed to try to intercept Mr. Darkwa as

he fled northbound on Guy Street. They saw him driving his car on the bicycle path where pedestrians and cyclists were present. Pedestrians waved their arms trying to attract the attention of the officers to the fleeing vehicle. [ 8 ] Mr. Darkwa continued driving northbound on Guy Street going through a red light at the intersection of Ste. Catherine Street, forcing cars to stop rapidly to avoid an accident. He then zigzagged between vehicles as he drove on the wrong side of the road along Guy between Ste. Catherine and de Maisonneuve, going through another red light.

Pedestrians ran toward the sidewalk in order to avoid being hit by the vehicle. [ 9 ] Mr. Darkwa ran another red light at the intersection of Guy and Sherbrooke Street as he overtook other vehicles. [ 10 ] Mr. Darkwa drove up Côte des Neiges, and then against oncoming traffic on Forest Hill Road, almost causing a head-on collision with an STM bus. His vehicle then stopped at the dead end of Hill Park Circle, where two officers attempted a high risk interception by standing in the middle of the street facing the driver and holding their handguns. Mr.

Darkwa drove forward, overtaking another car by driving in the opposite lane and drove at high speed in the direction of the two police officers, forcing them to barricade themselves behind the vehicle, while still pointing their guns at him. [ 11 ] Mr. Darkwa dodged the police car, heading southbound on Hill Park Circle, squealing his tires. [ 12 ] The vehicle was located abandoned on Ridgewood Avenue, and Mr. Darkwa was found in the forest nearby. [ 13 ] Mr. Darkwa did not have a valid driver’s license and in fact, as he testified, he has never had a driver’s license nor taken driving lessons.

Sentencing principles [ 14 ] The Court must determine the appropriate sentence to be imposed on Mr. Darkwa, applying the principles set out in sections 718 and following of the Criminal Code . These provide that the goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This goal is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary;

d) to assist in rehabilitating offenders;

e) to provide reparation for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 15 ] A sentence should be similar to sentences imposed on similar offenders for similar offences and the Court must take into account any aggravating and mitigating circumstances relating to the offence or to the offender, keeping in mind that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 16 ] In applying these principles, the Court must keep in mind the fundamental precept requiring that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [2] Profile of the offender [ 17 ] Mr.

Darkwa is 19 years old. He immigrated to Canada 10 years ago with his father and his brother, his mother remaining in their native country of Ghana. He grew up in Toronto, where he finished high school and then moved to Montreal to be with his girlfriend. He has never been employed but is learning about “crypto currency” from his cousin, also in Montreal, who works in that field. He is close with his brother and has some contact with his father.

He has no prior record but is facing pending charges in Ontario for offenses allegedly committed in May 2022, namely: robbery, confinement, kidnapping, theft, conspiracy to commit these offenses and breach of a Court order. The position of the parties [ 18 ] Emphasizing the mitigating factors of his guilty plea, the absence of a prior criminal record and his young age, Mr. Darkwa suggests a global sentence for all charges of 6 months. He submits that these offenses are youthful mistakes. He now recognizes his irresponsible behaviour, which he regrets. [ 19 ] Mr.

Darkwa also asks the Court to consider the absence of aggravating factors often found in this type of matter, namely the absence of any injuries caused and the short distance of the dangerous driving. [3] [ 20 ] Finally, Mr. Darkwa asks the Court to consider the pre-trial detention period since July 2022 as an additional factor which should operate to lessen the sentence, claiming that the conditions of his incarceration were particularly harsh. According to the testimony of Mr. Darkwa, he was assaulted while in jail.

He also spent many days in “lockdown” because of a combination of a shortage of prison staff and as a result of fights in his “range.” The detainees were thus allowed only one hour out of their cell per day. [ 21 ] The prosecutor recommends the imposition of a term of imprisonment of five months in the first file [4] and an additional seven months on both counts in the second file, for a total of 12 months. She emphasizes the particularly dangerous manoeuvres of Mr. Darkwa and, although no one was injured, the fact that on both occasions his behaviour behind the wheel seriously jeopardized the safety of the

public. Analysis [ 22 ] The Court considers the behaviour of Mr. Darkwa on both occasions in August 2021 to be quite reprehensible in that it shows a complete lack of consideration for the safety of anyone at all. In order to evade the police and avoid a well-deserved ticket for driving without a license, [5] Mr. Darkwa drove in a dangerous manner on a busy city street. The fact that pedestrians, cyclists and even a woman pushing a stroller had to jump out of the way is an important aggravating factor. Mr.

Darkwa is nothing short of fortunate that no one was injured despite his dangerous driving. [ 23 ] An important aggravating circumstance here is the fact that three weeks after he escaped the police in the first file, Mr.

Darkwa adopted the same irresponsible behaviour, once again finding himself behind the wheel of a car that he had no right to drive. [ 24 ] The number of police officers involved (particularly in the second car chase), the dangerous manoeuvres, including driving on the bicycle path and against the flow of traffic, the temerity shown by this young and inexperienced driver in his escape and the combination of dangerous driving and flight from the police are all circumstances that call for an exemplary and deterrent sentence.

In fact, the Court finds the recommendation by the Crown prosecutor to be on the low end of the appropriate sentencing range. [ 25 ] The examples of sentences imposed referred to by the prosecutor [6] although still relevant, all deal with offenses committed prior to the legislative amendment of 2018, increasing the maximum penalty for dangerous driving from five years to ten years. [7] This is a clear indication by Parliament that such offenses are to be viewed with more gravity (thus higher sentences) than they had been in the past. [8] [ 26 ] Recently, the Quebec Court of Appeal in R. v.

Gagnon [9] recognized that the range of sentences for dangerous driving and flight offences is very wide, while noting that sentences imposed are harsher, where, as here, the charges involve both offences. [ 27 ] Nevertheless, despite the aggravating circumstances, the Court puts significant weight on the fact that Mr. Darkwa is a youthful first offender. At 19 years old, he has now spent more than three months in jail and has seen firsthand that it is a place he wishes to avoid in the future. He claims to have learned from his mistakes and regrets his behaviour.

His guilty plea, although far from being at the earliest opportunity, is an indication of his recognition of his reprehensible conduct and of his taking responsibility for his actions. [ 28 ] As to Mr. Darkwa’s pending charges, these are troubling in terms of his prospects of rehabilitation, given the seriousness of the offenses. However, it must be emphasized that he is presumed innocent of all those charges. If and when he is convicted, an appropriate sentence will be imposed for those specific offenses.

Enhanced credit for pretrial detention [ 29 ] According to section 719 (3.1) of the Criminal Code , an enhanced credit for preventive custody is capped at 1.5 days for each day served. Thus the Court may not increase the ratio of enhanced credit. However, it is understood that in the exercise of their discretion in imposing sentence, Courts can consider harsh conditions of custody in order to tailor the appropriate sentence to the personal circumstances of the accused.

Collateral consequences of the offence or of the sentence are neither mitigating nor aggravating, but they can properly be considered as part of the overall factors relevant to the sentence to be imposed. [10] [ 30 ] Regarding his harsh conditions of detention, the Court notes that Mr. Darkwa was initially released on bail conditions and it is only following his refusal to respect these conditions, namely his failure to appear in Court, that his bail was revoked. This does not affect the credit he will be entitled to for his pre-trail detention.

However, on an analysis of whether his conditions justify lessening the sentence to be imposed, the Court cannot ignore the fact that Mr.

Darkwa was incarcerated only because he failed to respect the elemental condition of showing up to Court when required, and was subject to a bench warrant for approximately 9 months until his arrest. [11] [ 31 ] As to the proof of his conditions of detention, although a lockdown for 23 hours a day would certainly amount to harsh conditions and be appropriately considered when imposing a sentence, the Court was not presented with sufficient evidence to consider these circumstances in a meaningful way. The Court was presented with vague references by Mr.

Darkwa himself noting an unspecified period of days during which his range was subjected to lockdown. Similarly, although the Court has no reason to disbelieve Mr. Darkwa when he states that he was assaulted in jail, the total absence of any context or details about this or these incidents does not provide sufficient evidence to allow the Court to consider them as part of the sentencing analysis. The Court understands that Mr. Darkwa has found his time thus far in custody particularly difficult. This is not surprising, given that Mr. Darkwa is incarcerated for the first time in his life.

Nevertheless, the facts as presented do not justify any more consideration than the usual ratio of 1.5 for each day spent while awaiting trial. FOR THESE REASONS, THE COURT: In file 500-01-224389-210 : IMPOSES on count 1 (obstruction of justice) a prison term of one month and on count 3 (dangerous driving) a prison term of five months concurrent. In file 500-01-222854-215:

IMPOSES on count 1 (failure to stop) a prison term of seven months, consecutive to file 500-01-224389-210 and on count 3 (dangerous driving), a prison term of seven months, concurrent, to count 1, in application of the totality principle, for a total sentence of 12 months in both files. The total period of pretrial custody is calculated on the ratio of 1.5:1, thus subtracting 147 days [12] from the sentence of 365 days. The sentence imposed today is thus 218 days in prison. ORDERS Mr. Darkwa to be on probation for a period of two years (section 731 Cr. C); PROHIBITS Mr.

Darkwa from operating a motor vehicle for a period of 24 months. (section 320.24 Cr. C.) __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Anik Archambault Attorney for the Prosecution Me Safaa Essakhri Attorney for the Defence Hearing Dates: September 21 and 22, 2022.