R. v. Wright, 2020 ONCJ 513

ONTARIO COURT OF JUSTICE CITATION: R. v. Wright, 2020 ONCJ 513 DATE: November 9, 2020 BETWEEN: HER MAJESTY THE QUEEN — AND — TREY WRIGHT Before Justice B. Green Reasons for sentence released on November 9th, 2020 Ms. S. Thompson.......................................................... Counsel for the Crown Ms. M. Salih................................... Counsel for the defendant Mr. Trey Wright Green J.: A. Introduction: [1] Mr. Wright was charged with a series of offences as a result of his interactions with the police after they pulled him over to check on his sobriety on March 13th, 2019.

One of the charges was dangerous operation causing bodily harm to a police officer. Afterconsulting with the investigating officers and with the consent of counsel, the crown sought an amendment to this count on theInformation deleting any reference to bodily harm and re-elected by

summary conviction. [2] Mr. Wright was found guilty after trial of three counts: driving dangerously by pulling the car he was driving away from theroadside and accelerating while an officer was trapped between the driver’s door and the car; assaulting an officer with the vehicle andresisting the officer’s directions during the lawful execution of his duties. [3] There were no Charter issues raised during the trial about the grounds for the stop or the nature of the interaction between thepolice and Mr. Wright. Rather, Mr.

Wright advanced an alibi defence that was not believed, and it did not raise a reasonable doubt. Ifound that Mr. Wright was the driver of the vehicle who became involved in this altercation with police. [4] Mr. Wright and his brother, who was seated in the passenger seat, are two young black men. Whether an individual’s raceshould be a factor that influences a sentence has been the subject of significant legal debate, especially because of ongoing concerns withrespect to the alarming overrepresentation of people of colour in custody.

After reviewing various materials and resources in R. v.Jackson, 2018 ONSC 2527 , [2018] O.J. No. 2136 at para. 40 (Ont.S.C.J.), Justice Nakatsuru observed that “stripped to itsessentials, African Canadians have been jailed three times more than their general representation in society for quite some time. Theproblem is not getting better”. [5] I agree whole-heartedly with Justice Nakatsuru that the “contextual circumstances regarding the lived experiences of AfricanCanadians” may be appropriately considered when applying the principles of sentencing.

I am very mindful of current events in theworld, the global media attention surrounding countless accounts and recordings of police brutality involving black people and how thismounting distrust of police within racialized communities may impact the way a person of colour perceives and reacts to the directionsand actions of a police officer. The detrimental impact on police relations within the black community from being inundated withhorrific images like that of a fully uniformed police officer kneeling on the neck of a defenceless black man as he is slowly and painfullysuffocated to death is immeasurable.

[6] Counsel urged me to infer that Mr. Wright’s behaviour was a spontaneous, panicked response to being directed to leave thesafety of the vehicle. Arguably, how Mr. Wright reacted that night may have been influenced by his perceptions of the police as a youngblack man thereby attenuating his moral culpability for the offences. In R. v. Hamilton, (ON CA), [2004] O.J. No.3252 at paras, 134 and 135 (Ont.C.A.), Justice Doherty acknowledged that: A sentencing judge is, however, required to take into account all factors that are germane to the gravity of the offence and the personalculpability of the offender.

That inquiry can encompass systemic racial and gender bias. As the court explained in R. v. Borde, supra, atp. 236: However, the principles that are generally applicable to all offenders, including African-Canadians, are sufficiently broad and flexible toenable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in thecommission of the offence ... Reference to factors that may "have played a role in the commission of the offence" encompasses a broad range of potentialconsiderations.

Those factors include any explanation for the offender's commission of the crime. If racial and gender bias suffered bythe offender helps explain why the offender committed the crime, then those factors can be said to have "played a role in the commissionof the offence". [7] The Supreme Court of Canada in R. v. Le, 2019 SCC 34 , [2019] S.C.J.

No. 34 at paras 95 and 97 (S.C.C.), addressedthe lasting negative impact of unfair police practices on the collective psyche of racialized communities and concluded that: The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonablesuspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person's physical and mental health. It impactstheir ability to pursue employment and education opportunities (Tulloch Report, at p. 42).

Such a practice contributes to the continuingsocial exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuatescriminalization (see N.

Nichols, "The Social Organization of Access to Justice for Youth in 'Unsafe' Urban Neighbourhoods" (2018), 27Soc. & Legal Stud. 79, at p. 86; see also Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report onRacial Profiling in Ontario (2017), at pp. 31-40). … We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now showsdisproportionate policing of racialized and low-income communities (see D. M. Tanovich, "Applying the Racial ProfilingCorrespondence Test" (2017), 64 C.L.Q. 359).

Indeed, it is in this larger social context that the police entry into the backyard andquestioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racializedyoung men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of therelations between police and racialized communities would have had an impact on the perceptions of a reasonable person in theshoes of the accused.

When three officers entered a small, private backyard, without warrant, consent, or warning, late at night, to askquestions of five racialized young men in a Toronto housing co-operative, these young men would have felt compelled to remain, answerand comply. [8] More recently, in R. v. Thompson, 2020 ONCA 264 , [2020] O.J. No. 1757 at para. 63 (Ont.C.A.), Justice Jamal appliedthe comments in the Le decision to perceptions of interactions between police and motorists who are people of colour: The trial judge noted that "Mr.

Thompson is not a young person", but more to the point he was a black man sitting in his car at night inBrampton when his car was obstructed without apparent reason by two marked police cruisers. I am not suggesting that the policeengaged in racial profiling - to the contrary, they could not determine the race of the occupants because the windows were tinted. But theappellant's status as a racialized Canadian in Brampton, one of the largest majority-racialized cities in Canada, is relevant to theperception of a reasonable person in his shoes.

The majority in Le, at para. 97, referred to "a common and shared experience of racializedyoung men: being frequently targeted, stopped, and subjected to pointed and familiar questions". As in Le, at para. 97, I conclude that "[t]he documented history of relations between police and racialized communities would have had an impact on the perceptions of areasonable person in the shoes of the [appellant]". Here, the appellant's race would contribute to a reasonable person's perception in allthe circumstances that he was detained. [9] While Mr.

Wright’s perceptions and life experiences could have provided important context to his reaction to being told to exitthe car, I do not have any information or evidence about this issue from him. Mr.

Wright denied committing the offences during the trial.Moreover, unlike the Thompson case, the officers articulated the reasons for the traffic stop and the legitimacy of the stop was notchallenged by counsel. [10] I am prepared to take judicial notice of the fact that the shared history of negative police interactions with members of the blackcommunity influences how a person of colour responds to or perceives being pulled over by the police. However, in the uniquecircumstances of this case, I cannot make assumptions without any evidence about what Mr. Wright was thinking or feeling in those fewmoments in time.

It would be speculative for me to presume that this individual engaged in this conduct because of his perceptions of thepolice or the situation as opposed to any number of other possible explanations. [11] Counsel also urged me to consider Mr. Wright’s otherwise stellar background and his potential for rehabilitation as a youthfulfirst offender. She provided multiple, positive, compelling letters about Mr. Wright to support her sentencing position of a conditionalsentence in the range of 15 to 18 months as well as a 1-year driving prohibition.

Counsel submitted that the conditional sentence shouldbe served in the form of gradual reductions in the restrictions on Mr. Wright’s liberty of 1/3 house arrest, 1/3 curfew and 1/3 without acurfew.

[12] In contrast, the crown emphasized the seriousness of these offences and that Mr. Wright’s conduct directly risked the lives of twopolice officers engaged in the lawful execution of their duties. The crown acknowledged the mitigating features of this offender andadvocated for a reasonable sentence that she submitted will balance these competing considerations. She sought a sentence of 6 monthsincarceration to be followed by a period of probation, a 2-year driving prohibition, a

section 110 weapons prohibition order and a DNAorder. [13] This was a challenging decision because of the diametrically opposing sentencing considerations. The offences areunquestionably extremely serious. Mr. Wright endangered the lives of police officers which necessitated the officers responding to thethreat to their lives by discharging their firearms. Any number of innocent people could have been killed that night because of Mr.Wright’s actions. In contrast, there are multiple uniquely mitigating factors with respect to Mr. Wright.

He is a youthful first offender.He has faced numerous life challenges and he has achieved considerable success in the face of adversity. He has a positive supportnetwork and he has significant potential for rehabilitation. [14] A fulsome review of the aggravating and mitigating facts, the various sentencing principles and comparable sentencingprecedents is essential to explain the sentence for this offender for these offences. B.

Summary of the Facts: i. Aggravating circumstances of the offences: [15] On March 13th, 2019, at 11:28 p.m., PC Scholtes and his partner, PC Richer were in uniform and on patrol in Oshawa in a fullymarked police vehicle. They are both experienced, veteran police officers. Their attention was drawn to an Acura with tinted windowsthat was parked illegally, partially on the curb with its four-way flashers on. The officers could not see the driver or occupants inside thevehicle. PC Scholtes turned the cruiser around to see what was going on with this car.

As he approached the Acura, it pulled away andthe officers began to follow it. After observing erratic driving, PC Scholtes decided to pull the vehicle over to check on the sobrietyand/or welfare of the driver. [16] PC Scholtes activated the emergency lights on the police vehicle and the Acura immediately pulled over on Capreol Courtwithout incident. Capreol Court is a dead-end residential street lined with homes. In order to exit, a driver would have to turn around inthe court area and exit out the same way they entered but driving in the opposite direction.

The Acura pulled over on the side of thecourt, before the circular end and the police cruiser pulled in behind it. There was a van parked in the circular area at the top of the courtthat would have to be maneuvered around in order to exit. [17] PC Scholtes approached the driver’s door and PC Richer approached the passenger side. The windows were rolled down andthere were two occupants, the driver and a passenger in the front seat.

Both officers immediately noted an odour of freshly burntmarijuana emanating from the vehicle which impacted the direction of their investigation. [18] PC Scholtes engaged the driver in a conversation while PC Richer spoke with the passenger. Mr. Wright was initially nervousbut cooperative with the police. He provided his driver’s licence, ownership documents and a photograph that he had on his phone fromthe owner of the vehicle establishing that it was insured.

PC Scholtes and PC Richer went back to their cruiser for a couple of minutes.PC Scholtes assessed various factors and decided that he had grounds to believe the driver’s ability to operate a vehicle was impaired bya drug. [19] He and his partner returned to the same positions outside the Acura. PC Scholtes asked Mr. Wright to step out of the vehicle foran impaired driving investigation. As soon as PC Scholtes made that request, Mr. Wright’s attitude and demeanour changeddramatically. He became very confrontational, loud and profane.

He shouted at the passenger not to let PC Richer look in a satchel thathe had across his chest. [20] Mr. Wright told PC Scholtes that he had no reason to stop him and that he only pulled him over because he was black. Counseldid not challenge the credibility or reliability of the officers’ observations or interactions with the driver and occupant. I am aware of thediffering components of racial profiling. Justice Paciocco explained in R. v. Dudhi, 2019 ONCA 665 , [2019] O.J.

No. 4333 atparas. 54 and 55 (Ont.C.A.) that: Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. As Brown and Martin JJ. explainedin R. v. Le, 2019 SCC 34, at para. 76, for the majority of the Court: [T]he concept of racial profiling is primarily concerned with the motivation of the police.

It occurs when race or racial stereotypes aboutoffending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [Citationsomitted.] The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevantin identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), (ONCA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10.

The causation component requiresthat this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivateor influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment. [21] There was absolutely no evidence that PC Scholtes engaged in either component of racial profiling.

I accept, as a fact, that neitherPC Scholtes nor PC Richer knew the race of the occupants prior to stopping that vehicle because of their relative positioning when theyfirst observed the car, it was night time and the windows were tinted. [22] PC Scholtes’ reasons for stopping this vehicle and the request for Mr. Wright to step out of the vehicle were not the subject of aCharter challenge. Nevertheless, he articulated various discernable factors that explained each step in the investigation.

PC Scholtes wasengaged in the lawful execution of his duties and properly conducted an impaired driving investigation because of observations of poordriving coupled with the smell of marijuana emanating from the car. Furthermore, while interacting with the driver, neither of the

officers were in any way verbally or physically abusive or aggressive with Mr. Wright or the passenger. [ 23 ] A routine traffic stop quickly escalated in a manner that did not make sense to either officer. Mr. Wright was very agitated, and the passenger was acting unusually nervous. PC Scholtes directed Mr. Wright a number of times to step out of the vehicle but he refused to comply with these commands. He said he wanted to call his mom and he began dialing numbers on his cell phone. PC Scholtes reached in the car and hung up the phone and asked him again to step out of the vehicle. Mr.

Wright then reached for the ignition and he was specifically directed not to do that. [ 24 ] PC Scholtes opened the driver’s door so that he was positioned in between the door and the driver. Suddenly, Mr. Wright made a quick move, reached in between the driver and passenger seats, into the back seat. Neither of the officers could see what was in the back seat so they were both very alarmed and concerned for their safety by this unexpected movement. PC Scholtes responded by grabbing Mr. Wright’s arm and pulling him forward to prevent him from retrieving whatever he was reaching for in the back seat.

Unfortunately, as he was pulled forward, Mr. Wright grabbed for the ignition and he started the car with PC Scholtes stuck between the door and the car. Mr. Wright immediately accelerated towards the top of the crescent where the parked van was located. [ 25 ] As the car took off, Cst. Richer pulled away from the passenger door and took the satchel the passenger had with him. Cst. Scholtes’ leg was twisted underneath the side of the car.

He was able to use the car door to pull his leg free and he managed to jump on the inside frame of the car while holding on to the car door to prevent himself from being dragged or run over by Mr. Wright. As he hung onto the moving car, it was headed towards the parked van. PC Scholtes was at risk of being crushed between the car and the van, if Mr. Wright drove close enough to the van, because of the confined path that Mr. Wright travelled trying to flee the scene. [ 26 ] Mr. Wright’s conduct was incredibly dangerous. Whatever the reasons, fears or impulses were that motivated Mr.

Wright’s desire to flee, they could not possibly have justified jeopardizing the life of an innocent person who was just trying to do his job. As soon as Mr. Wright realized that the officer was perilously clinging to the car, he could have and should have stopped the car immediately, but he chose to continue speeding away despite the obvious risks. [ 27 ] Cst. Scholtes’ had mere seconds to make a decision. By happenstance, he is left handed and he was able to grab his gun with his left hand while holding himself up with his right arm. He could have taken that gun, pressed it against Mr.

Wright and shot him to save his own life. Instead, in a candid but understated moment during the trial, Cst. Scholtes hesitated and then explained that he didn’t feel comfortable shooting into the car at Mr. Wright. He was also cognizant of the presence of the passenger. Cst. Scholtes made a deliberate choice to try and shoot the tire of the vehicle rather than shoot at this youthful driver. This officer’s restraint, courage and professionalism are admirable. It was evident throughout the trial that this interaction with Mr. Wright deeply impacted Cst.

Scholtes and he has replayed the events of that night over and over in his mind. [ 28 ] The Acura came within 5 feet of the van. Cst. Scholtes tumbled from the car after firing two shots and shot once more into the body of the car. The car looped around and made its way toward the exit of the crescent. Cst. Richer had no idea what happened to his partner in those few seconds. His voice shook with emotion when he stated that he didn’t even know if Cst. Scholtes was alive or dead. Cst. Scholtes testified that while he was lying on the ground, he also feared for his partner’s safety because he could see that Cst.

Richer had run across the road and he was in the pathway of the oncoming vehicle. [ 29 ] The Acura sped by Cst. Richer. Cst. Richer made an informed choice to shoot into the driver’s side of the fleeing vehicle as opposed to shooting directly at the driver. Because of their experience and judgement, both officers responded intuitively and with measured force. A talented, smart, cherished young man is still alive with a bright future ahead of him despite his incredibly hazardous conduct because of two brave police officers who chose to risk their own lives to avoid taking his life.

Both officers were heroes that evening. [ 30 ] The officers simultaneously radioed for assistance and Cst. Richer ran to check on the well-being of Cst. Scholtes. Mr. Wright fled the scene and was not arrested that night. Miraculously, Cst. Scholtes only suffered a sprained knee which didn’t require medical attention, but he was still taken to the hospital as a precaution. As far as I am aware, Mr. Wright was not injured when the shots were fired at the vehicle. [ 31 ] After Mr. Wright fled the scene, the area and the satchel were searched for any illegal items or weapons.

Nothing was discovered in the area and the satchel only contained a small amount of marijuana which is not illegal to possess. [ 32 ] The facts in this case are reminiscent of the tragic case involving the death of Cst. Garrett Styles. Cst. Styles was engaged in a traffic stop when a van operated by a young person suddenly accelerated forward and pinned the officer under the van. The officer succumbed to his injuries but only after expressing concern on his radio for the safety of the occupants of the van.

The driver of the van crashed the vehicle and he is a quadriplegic as a result of the injuries that he sustained that night. Cst. Styles’ death attracted nation wide media attention. Cst. Scholtes could have been another fallen officer and Mr. Wright another victim of his own poor choices. [ 33 ] Both Cst. Scholtes and Cst. Richer have been police officers for almost two decades but neither one of them had ever discharged their firearms in the line of duty before that night. They were clearly shaken and upset by the choices they were forced to make because of Mr. Wright’s conduct.

The officers were contacted by the crown prior to the sentencing but they declined to give victim impact statements. [ 34 ] It is important to emphasize that Capreol Court is a residential street. Mr. Wright’s driving jeopardized the lives of two police officers as well as any other resident who came out in response to the presence of police, emergency lights, shouting and shots being fired in their neighbourhood. However, the crown did not seek to tender a community victim impact statement. In addition, Mr. Wright jeopardized his own life and his brother’s life. ii.

Mitigating circumstances of the offender: [ 35 ] I do not know why Mr. Wright’s attitude changed dramatically or why he suddenly reached into the back seat of the car or why he made the decision to accelerate forward knowing that a police officer was trapped between the door and the car. An acceptance of

responsibility for this crime and a heart felt apology to these two officers are substantially mitigating factors that are absent in this case. [ 36 ] Counsel provided a lot information about the background of this young man that is difficult to reconcile with the seriously disturbing choices that he made that night. Both Mr. Wright and his mother, Michelle Wright, wrote poignant, eloquent letters that have provided me with insight into Mr. Wright’s true character. Mr. Wright’s behaviour on March 13 th , 2019, seems to be an aberration in the life of an otherwise impressive young man. [ 37 ] Mr.

Wright faced substantial adversity as a child. His father abandoned him before he was born. He was raised by a single mother. His mother struggled with various mental health issues and a limited income, but she did her best to love and support her son. As a child, Mr. Wright was diagnosed with ADHD and oppositional defiance disorder. As a result, he felt overwhelmed in school and embarrassed by his limitations. Fortunately, he connected with a special teacher who helped him through these challenges. He began to excel with this extra guidance and graduated from high school. [ 38 ] While Mr.

Wright persevered through his challenges in school, his home life became quite unstable. When he was six years old, his mother met a man and eventually they got married. Mr. Wright’s stepfather had his own son and the two boys consider each other brothers. Unfortunately, Mr. Wright’s stepfather was not the male role model that he needed in his life. [ 39 ] Mr. Wright’s mother had another child, a little girl, who she hoped would unite and strengthen their family bonds. Tragically, Mr. Wright’s sister suffered a seizure disorder and she has multiple disabilities that require the constant care and attention of Mr.

Wright’s mother which makes it difficult for her to give Mr. Wright the attention that he needed from her. His stepfather did little to help with caring for his sister. To make matters worse, his stepbrother’s mother was diagnosed with cancer, so his stepfather concentrated all his care and attention on his biological son and neglected Mr. Wright. [ 40 ] With tensions building in the family home, Mr. Wright made the tough decision to move out on his own at the young age of 18 years old. He was quickly overcome by the responsibility of caring for himself, but he still managed to maintain full-time employment.

He worked at Staples and then in the construction industry. He provided a letter of reference from one of his employers who spoke very highly of him. Mr. Cosovic from Nusens construction related that Mr. Wright worked with him for 3 years and “displayed incredible levels of respect, determination and dedication towards his duties”. He felt that he witnessed “tremendous growth” in Mr. Wright over the years. [ 41 ] Mr. Wright has also participated in programs with the TAIBU community center.

Through this organization, he began helping other youths and he met a mentor who inspired him to pursue a career in community building. He has great aspirations for his future, and he has already begun to try and achieve his dreams. He is enrolled at the University of Toronto School of Continuing Studies to earn a Project Management Certification while maintaining a job to support himself. He is also registered with Tropicana Community Services. He is involved with a program for employment services under the “youth job connection programs”.

A job developer will assist him with finding more employment opportunities. [ 42 ] In addition to working, going to school, attending employment programs and helping at the community center, Mr. Wright completed community service work. He volunteered with the Legacy Dreams to Reality youth empowerment center and completed 50 hours of volunteer work as a “program support worker”. [ 43 ] While Mr.

Wright has not expressed remorse or any insight with respect to the seriousness of these offences, he wrote in the letter to the Court that he “will do everything in my power to never be in this situation again.” I noted that the project coordinator where he volunteers observed that Mr. Wright shared “his lived experience” to help youths “make better decisions” and “life choices”. His mother also wrote that: I want you to know that my son is kind and loving and is always checking up on his sister and me. He is a good son and brother.

I am sorry that circumstances have caused him to go down the path that has led to this incident, but he really wants to be a good man, make his family proud and grow and learn from this experience. [ 44 ] Mr. Wright was 21 years old when he committed these offences. He is about to turn 23 years old. Prior to these convictions, he had no criminal antecedents.

He has a bright future ahead of him. [ 45 ] To arrive at a just sanction that balances the competing considerations of the aggravating circumstances of the offence and the mitigating circumstances of this offender, I must consider the guiding sentencing principles and any similar sentencing precedents. C. Legal Analysis i.

Guiding sentencing principles: [ 46 ] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: 1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct ; 2. to deter the offender and other persons from committing offences; 3. to separate offenders from society, where necessary; 4. to assist in rehabilitating offenders; 5. to provide reparations for harm done to victims or to the community; and 6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[47]

Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of theoffender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision. [48] In cases involving dangerous driving, especially when the vehicle was used to assault a police officer and flee the scene, theprimary principles of sentencing that will guide my judgement are denunciation and deterrence.

Please see: R. v. Frickey, [2017] O.J.No. 6887 (Ont.C.A.). However, rehabilitation remains an important goal with any sentencing particularly in a case involving a youthfulfirst-time offender. ii. The principle of restraint: [49] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada inR. v. Lacasse, 2015 SCC 64 , [2015] S.C.J.

No. 64 at para 12 (S.C.C.) explained: The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moralblameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task.

As I mentioned above, bothsentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. [50] An important sentencing consideration is the principle of restraint which has been codified in the

section 718.2 of the CriminalCode and states that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [51] Courts in Ontario have been unequivocally clear that youth and the lack of criminal antecedents should weigh very heavily interms of tipping the scales towards a more lenient sentence.

Except for very serious offences or crimes of violence, the primaryobjectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. The crown emphasizedhowever, that this offence is so serious that a custodial sentence is required even though Mr. Wright is a first offender. [52] While I agree with the crown that these offences are extremely serious and merit a denunciatory and deterrent sentence,incarceration is not the only means to achieve these sentencing goals. In the recent decision of R. v. Sharma, 2020 ONCA 478 ,[2020] O.J.

No. 3183 at para. 110, the Ontario Court of Appeal emphasized that a conditional sentence: …serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even incases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, atpara. 35. [53] All available sanctions must be considered when determining what is reasonable in the unique circumstances of these offencesand this offender.

There is an effective, alternative sanction of serving a jail sentence in the community that may achieve the sentencinggoals of denunciation and deterrence while reinforcing all the positive steps that Mr. Wright has taken towards rehabilitation. While aconditional sentence would be the least restrictive penalty in these circumstances, I must consider whether it appropriately balances thecompeting sentencing considerations by reviewing any similar cases. iii. The principle of parity: [54] Subsection 718.2(

a) of the Criminal Code codified the long-standing principle of parity that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [55] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find similar facts.Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality ofeach offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500 at para 92 (S.C.C.): ...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction. [56] Even when there are comparable cases, I acknowledge that precedents are intended to provide guidance as opposed todominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 , [2012] O.J.

No. 3096 at paras. 29 and 30 (Ont.C.A.), theOntario Court of Appeal cautioned that: It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parityprinciple, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fitsentence. In R. v.

Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9: So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offencewhich are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonabledisparity in sentencing "does not require equal sentences, but only understandable sentences when examined together."

[57] In addition to reviewing any comparable cases, I must consider whether a conditional sentence is statutorily available. Section742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence: 1. The offender must not be convicted of an offence that is specifically excluded; 2. The offence must not be punishable by a minimum term of imprisonment; 3. The court must impose a sentence of imprisonment of less than two years; 4. The safety of the community must not be endangered by the offender serving his or her sentence in the community; and 5.

A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to718.2. [58] These offences are not statutorily precluded from being eligible for a conditional sentence. Secondly, there are no minimumterms of imprisonment for any of the offences. Thirdly, the crown and counsel have agreed that the appropriate sentence is less than twoyears. Fourthly, I am satisfied that a conditional sentence would specifically deter Mr. Wright from committing any further offences.

Hehas established that he has significant potential for rehabilitation and to be a positively contributing member of society. He complied withthe terms of his bail for 20 months. I believe that it is highly unlikely that he will reoffend. As a result, I am confident that a conditionalsentence would not endanger the safety of the community. [59] Since the first four prerequisites have been met, the only remaining question is whether a conditional sentence would beconsistent with the fundamental purposes and principles of sentencing.

Undoubtedly, a strong message must be sent to the general publicand like-minded offenders that a heavy price will be paid by anyone who abuses their driving privileges, fails to follow the directions ofa police officer in the lawful execution of his/her duties and endangers the lives and safety of the police and members of the community.The sentence must be proportionate to the gravity of these offences and Mr.

Wright’s sole responsibility for the commission of thesecrimes. [60] While PC Scholtes did not suffer long-lasting injuries, he sustained a sprained knee and his life was put in jeopardy by Mr.Wright’s dangerous driving. As a result, the sentence should be similar to cases involving bodily harm. In R. v.

Rawn, supra at paras. 43to 45, the Court of Appeal reviewed the “normal range” of sentences for dangerous driving causing bodily harm and found that: In terms of the range of sentences established by the jurisprudence, I note that in 2007, this court identified the normal range forimpaired driving or dangerous driving causing bodily harm as between a conditional sentence and two years less a day: R. v. VanPuyenbroek, 2007 ONCA 824, 231 O.A.C. 146, at paras. 59-61. More substantial sentences were available in certain cases; in VanPuyenbroek itself a three year sentence was upheld.

Then, in 2007, s. 742.1 of the Code was amended to exclude the availability of conditional sentences for serious personal injury offences.Given the injuries suffered by Ms. Snyder, this case clearly qualifies: Belanger, 2009 ONCA 867 , [2009] O.J. No. 5242, atpara. 4. While it follows that a conditional sentence is not available in this case, the more important consequence of this amendment isthat it signals that Parliament has determined that conduct of this nature will not be tolerated. It is worth repeating - dangerous driving causing bodily harm is a serious offence.

An appropriate sentence must give primacy to theobjectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect theseriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary thatthere be absolutely no ambiguity in the message that such conduct is completely unacceptable. [61] Fortunately, Mr.

Wright’s crimes did not end in lasting trauma or tragedy despite the enormous risks of substantial harm.Nevertheless, I must consider the uniquely aggravating circumstances of dangerous operation in the context of fleeing a lawful trafficstop. There should be “absolutely no ambiguity in the message” that this specific type of conduct is completely unacceptable and willresult in severe punishment. [62] Counsel helpfully provided a sentencing precedent with similar facts: R. v. Chiasson, [2008] O.J. No. 466 (Ont.C.A.).

Mr.Chiasson was pulled over by the police and the officer attempted to arrest him by placing his hand on his shoulder. Instead of complyingwith the officer’s directions, Mr. Chiasson put the car in gear and accelerated forward knocking the officer to the ground. He ran overthe officer’s leg, but the officer miraculously only sustained minor injuries. After running over the police officer, Mr. Chiasson parkedthe car and fled the scene on foot. He was eventually apprehended but he resisted arrest and he attempted to disarm one of the arrestingofficers. [63] Like Mr. Wright, Mr.

Chiasson was a youthful, first time offender. The trial judge sentenced him to 18 months incarceration, a 5-year driving prohibition and 3 years of probation. The Court emphasized that a reformatory sentence was necessary to address theoverriding considerations of denunciation and deterrence. The Court of Appeal acknowledged the seriousness of the offences butoverturned the sentence for a few reasons: In our view, these offences were extremely serious. They involved putting more than one police officer at risk.

The trial judge made noerror in considering the vulnerability of police officers placed in a potentially dangerous situation and the importance of generaldeterrence. Accordingly, in our view, it was within the discretion of the trial judge to impose significant sentences for these offences.Moreover, in our view the total sentence of 18 months, viewed in isolation, is not outside the range for offences of this nature. Nevertheless, we would interfere with the sentence for three reasons.

First, in our view, the trial judge focused excessively on the principles of general deterrence and denunciation and failed to give adequateweight to the principle that the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation. Inthis case the appellant's individual circumstances presented a combination of both usual and unusual factors. The appellant's prospects

for rehabilitation were very positive. The trial judge remarked that specific deterrence was not an issue for this offender, forwhom this conduct was completely out of character. During his childhood, the appellant experienced significant and prolonged abusefrom a step-father. This abuse left him with a stutter so significant that his ability to communicate was impaired to the extent that, apartfrom family members, he often resorted to written communication or required a person to interpret for him.

The appellant'scommunication problems would substantially increase his difficulties in serving a sentence in a prison setting. The pre-sentence reportwas extremely positive. It addressed the appellant's disabilities and found they explained to some extent his aberrant behavior on thenight in question. Finally, this young man acts virtually as a parent to his disabled mother who is dependent upon him for her day to dayneeds including her meal preparation. Second, the trial judge did not provide sufficient reason for rejecting the imposition of a conditional sentence on at least some of theconvictions.

He alluded to this possibility in regard to the "flight from police" charge, but simply observed it was "part of a package" that"should be weighed in with the others". Third, it is not in the interests of justice that the appellant be reincarcerated at this time. The appellant served just less than three monthsin prison before being released on a consent bail. While on bail, he has seen a psychiatrist and speech therapist, with positive results.He has completed a program at Sanford Fleming Academy, and is now employed on a full-time basis.

All these steps reinforcethe positive prospects for the appellant's rehabilitation, which would be placed at risk if he were reincarcerated. [emphasis mine] [64] The Court of Appeal substituted the sentence of 18 months incarceration with 3 months time served and an additional 12 monthsconditional sentence with the first 9 months to be on house arrest with certain exceptions and the last 3 months with a restrictive curfewof 7 p.m. to 6 a.m. daily. [65] Despite the serious nature of these offences, denunciation and deterrence can be achieved by a conditional sentence with punitiveterms.

The message will be clear that should a person choose not to cooperate with a police officer engaged in the lawful execution ofhis/her duties and endangers the lives of police officers who are serving the community, a significant price will be paid. The penalty forMr. Wright will include the loss of his driving privileges in addition to a period of home confinement as an alternative to incarceration aswell as a period of probation to ensure his ongoing rehabilitation. This sentence balances the competing sentencing considerations whileholding Mr.

Wright fully accountable for his actions. [66] Counsel advocated for a conditional sentence in the range of 15 to 18 months, but she suggested that only 1/3 of the sentenceshould be on house arrest, the next 1/3 should be a curfew and the last 1/3 should not have any restrictions on Mr. Wright’s liberty. [67] I find that it is counterintuitive to order a conditional sentence, that is intended to be a period of incarceration in an offender’shome as opposed to actual custody, without terms that restrict the person’s liberty.

Without these restrictions, the last part of the sentenceproposed by counsel would be virtually indistinguishable from a suspended sentence. In the seminal decision of R. v. Proulx, 2000 SCC5 , [2000] S.C.J. No. 6 at para 117, the Supreme Court of Canada unequivocally stated that: “punitive conditions such as housearrest should be the norm, not the exception”. Similarly, in R. v. Wu, 2003 SCC 73 , [2003] S.C.J.

No. 78 at para. 25 (S.C.C.),the Supreme Court explained that: In Proulx, supra, it was held that the requirement that the court impose "a sentence of imprisonment of less than two years" was intendedto identify the type of offenders who could be entitled to a conditional sentence (para. 55). Specifically, Parliament did not intendconditional sentences to be "probation under a different name" (para. 28). A conditional sentence is a sentence of imprisonment, albeitthe sentence is served in the community. It is imprisonment without incarceration.

Only when the sentencing judge has rejected othersentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term ofimprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does aconditional sentence arise for consideration. At that point, the question is where the term of imprisonment is to be served, in a penalinstitution or, under punitive conditions, in the community.

"It is this punitive aspect that distinguishes the conditional sentencefrom probation" (Proulx, supra, at para. 22). [emphasis mine] [68] The terms of the conditional sentence advocated for by counsel would not be sufficiently punitive or adequately address thepredominant sentencing principles. As a result, for most of duration of the conditional sentence, Mr. Wright will be under house arrestand the balance will have curfew conditions. iv. Downes credit: [69] Mr. Wright spent a couple of days in pretrial custody which he will receive credit for as part of the overall sentence. Counselurged me to also give Mr.

Wright substantial credit for the time that he has spent on restrictive bail terms. The crown conceded that Mr.Wright ought to be afforded some credit for the time spent on bail although she submitted that “bail is not jail”. [70] Mr. Wright was bound by terms of bail from his release on March 20th, 2019 until August 21st, 2020 when certain terms werevaried. His bail included terms that he was to: 1. Reside with his grandmother; 2. Abide by a curfew daily of 10 p.m. to 6 a.m. unless for medical emergencies or while he was in the presence of his surety which washis mother; and 3.

He was prohibited from communicating with and required to remain a radius away from a list of people including his brother. [71] It should be noted that Mr. Wright was also bound by a term of bail that prohibited him from driving a motor vehicle right up tothe date of this sentencing. I will not consider this term when assessing what credit should be afforded to the time that he has spent onbail. Rather, as will be explained, I will account for this restriction separately when determining the appropriate length of the licenceprohibition.

[72] Counsel did not seek a bail variation while Mr. Wright was bound by these release terms. Several judgements have referred to theabsence of a bail variation request by defence counsel or the defendant when considering whether to grant credit for time spent on bailconditions. However, in R. v. Zora, 2020 SCC 14 , [2020] S.C.J.

No. 14 (S.C.C.), the Supreme Court recently reminded allparticipants in the criminal justice system that our actions are to be guided by the presumption innocence and that “bail is a dynamic,ongoing assessment, a joint enterprise among all parties involved to craft the most reasonable and least onerous set of conditions, evenas circumstances evolve”. [73] Counsel is not solely responsible for assessing the ongoing reasonableness of bail conditions. For example, in this case, Idetermined that the curfew condition and the term prohibiting Mr.

Wright from communicating with his brother were no longer justifiedon the secondary grounds. As a result, I deleted these two terms while Mr. Wright awaited sentencing. Considering that he was foundguilty of a serious driving offence, I left the driving restrictions in place. The absence of a bail variation request is not necessarilydeterminative of whether to grant credit for pretrial release terms. [74] In R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 (Ont.

C.A.), Justice Rosenberg held that “time spentunder stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (Seepara. 33). In addition, he noted that (at paragraph 36): Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, theamount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge.

That factor must beconsidered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. [75] Finally, the Court summarized the guiding considerations when deciding whether to give credit for time spent on bail conditionsat paragraph 37: The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is noformula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringencyof the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment andactivity. Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge withinformation as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on the offender toestablish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [76] A sentencing judge is entitled to decline to give credit for time spent on bail conditions if the terms were not particularly onerousor there is no evidence of hardship or deprivation. In R. v. Ijam, 2007 ONCA 597 , [2007] O.J. No. 3395 (Ont.C.A.), the Courtof Appeal distinguished the Downes case and upheld a trial judge’s decision declining to give credit for the time the offender spent onpre-trial release.

The Court repeated the oft-cited quote that “bail is not jail”. [77] Mr. Wright has excelled while on bail. He made the best of a difficult situation by volunteering, advancing his education andcontinuing to work while living with his grandmother. That does not mean however, that the bail terms did not take a toll on himpersonally, emotionally and psychologically. [78] An offender’s productive use of time spent on bail speaks to his or her significant potential for rehabilitation and it is nonethelessa mitigating factor. As Justice Watt observed in R. v. Adamson, 2018 ONCA 678 , [2018] O.J.

No. 4104 at para 106 (Ont.C.A.),“it is beyond controversy that prior decisions of this court authorize a sentencing judge to take into account, as a relevant mitigatingcircumstance on sentence, time spent under stringent bail conditions”. Mr. Wright’s industrious and positive conduct while on bail issubstantially mitigating. One way or the other, as a credit reducing the overall sentence or a mitigating factor reducing the overallsentence, Mr. Wright should receive credit for the time that he spent abiding by these restrictive bail terms. [79] Mr.

Wright detailed in a letter to the Court how his bail conditions have negatively impacted him. He explained that it was verydifficult for him to “navigate his work life” with curfew conditions. He described that “with a snap of a finger so many privileges weretaken away from me and this has made a major impact on my life.” The hardest term for him was not being allowed to associate with hisbrother, a relationship that he values. Sadly, his stepbrother’s mother died while Mr. Wright was on these terms. He was not able tocomfort his brother or even attend the funeral.

He explained that he is “all he has to support” his brother and he wasn’t there when heneeded him the most. [80] Mr. Wright was forced to give up his independence and live with his grandmother. He had to make alternate arrangements tocare for his dogs that he cherishes. He is a vibrant young man whose social activities and associations were significantly curtailed by a10 o’clock curfew for 17 months with the only exceptions being for medical emergencies or while he was in the company of his mom. [81] I am satisfied that Mr.

Wright’s liberty interests, familial relationships and normal activities were negatively impacted by hisrelease terms. Since he has abided by these terms without incurring any breaches, I will deduct a number of months from the overallappropriate conditional sentence that is commensurate with the impact of the pretrial release terms and his exemplary conduct. v. The licence prohibition:

a) When does a prohibition order commence? [82] The crown submitted that a 2-year driving prohibition is essential to reflect the aggravating features of this case. Counseladvocated for a sentence that would restrict Mr. Wright’s driving privileges for a year or, alternatively, for a 1-year driving prohibition.Counsel urged me to consider that Mr. Wright has already respected the bail conditions that prohibited him from driving for the past 20months since his release in March of 2019 and he was automatically suspended from driving under provincial legislation upon

conviction. In addition, counsel emphasized that, pursuant to subsection 320.24(5) of the Criminal Code, any driving prohibition willonly commence “after the entire period to which the offender is sentenced to imprisonment”. [83] In R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J. No. 64 at para. 109 (S.C.C.), the Supreme Court concisely stated that: By adding the words "plus any period to which the offender is sentenced to imprisonment", Parliament was making it clear that itintended driving prohibitions to commence at the end of the period of imprisonment, not on the date of sentencing.

Section 719(1)provides that a sentence commences when it is imposed, except where an enactment otherwise provides. [84] The Ontario Court of Appeal stressed in Sharma, supra at para. 110, that a conditional sentence is “a jail sentence but served inthe community”. Similarly,

section 742.1 of the Criminal Code specifically refers to a conditional sentence as a sentence of“imprisonment” of less than two years that the offender will serve “in the community” while subject to certain conditions. As result, if Imake a separate prohibition order, it will only commence after the conditional sentence of “imprisonment” is completed which makesabsolutely no sense in these circumstances. [85] Instead of imposing a delayed prohibition order that commences after a period of imprisonment, since Mr.

Wright will be servinghis sentence in the community, I can impose a term that will prohibit him from driving as part of the conditional sentence. Mr. Wrightcould not be charged with breaching a prohibition order if he drove a motor vehicle in contravention of this term. Nevertheless, he wouldstill face a penalty for breaching the terms of his conditional sentence. The balance of his conditional sentence could be converted into acustodial sentence if he breaches the order. [86] In R. v. Bland, 2016 YKTC 27 , [2016] Y.J.

No. 89 at para. 30 (Yukon Terr.Ct.), the Court suggested this approach toavoid the delayed commencement of a prohibition order and noted that: In the event that the offender is found driving contrary to a term of the conditional sentence order, the offender could not be charged withhaving committed a s. 259(4) offence but with having breached the term in the conditional sentence order prohibiting him or her fromdriving. Thus the offender would be dealt with under s. 742.6 setting out the procedure for dealing with an allegation of a breach of aconditional sentence order.

b) Should pretrial bail terms be deducted from the total length of the prohibition order or driving restrictions? [87] Mr. Wright has already abided by a driving prohibition as a result of the terms of his release for a total of 20 months. Unlikeother bail terms, the Supreme Court has been very clear that the total period of time spent on pretrial driving prohibition terms “must be”deducted from the prohibition that is ordered as a part of the sentence. In R. v.

Lacasse, supra at paras.112 to 113, the Supreme Court ofCanada held that: The courts have seemed quite reluctant to grant a credit where the release of the accused was subject to restrictions, given that suchrestrictive release conditions are not equivalent to actually being in custody ("bail is not jail"): R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321 (C.A.); R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 36; R. v. Panday, 2007 ONCA 598, 87 O.R.(3d) 1. In the instant case, the driving prohibition has the same effect regardless of whether it was imposed before or after the respondentwas sentenced. In R. v.

Sharma, (SCC), [1992] 1 S.C.R. 814, Lamer C.J., dissenting, explained that the accused had infact begun serving his sentence, given that the driving prohibition would have been imposed as part of his sentence had he been tried andfound guilty within a reasonable time.

In short, where a driving prohibition is not only one of the release conditions imposed on anaccused but also part of the sentence imposed upon his or her conviction, the length of the presentence driving prohibition mustbe subtracted from the prohibition imposed in the context of the sentence. [emphasis mine] [88] The Ontario Court of Appeal recently addressed the issue of whether a sentencing judge “must” subtract the entire period of thepretrial driving prohibition terms or whether there is a residual discretion to reduce the amount of credit.

Despite the seeminglymandatory wording of the Supreme Court of Canada’s decision in Lacasse, in R. v. Gauthier-Carriere, [2019] O.J. No. 5024 (Ont.C.A.),Justice Feldman found that there is a residual discretion not to grant full credit if the offender breached the terms of the drivingprohibition while on bail: While the Supreme Court in Lacasse did not discuss the issue whether a sentencing judge has a residual discretion with respect to theamount of credit to be given for a presentence driving prohibition that was breached, its analysis of the fresh evidence of other breachesby M.

Lacasse and their potential effect on his sentence is instructive. M. Lacasse pled guilty to two breaches of his recognizance subsequent to his sentencing for the impaired driving causing death offences.Although M. Lacasse's breaches were not driving breaches, the Supreme Court noted that "they are evidence of a lack of respect on therespondent's part for court orders and for the law, which relates directly to the conditions for his rehabilitation": at para. 118. The Crownsought to introduce evidence of these breaches as fresh evidence on the sentence appeal but the Court of Appeal refused.

The Supreme Court found that to be an error by the Court of Appeal because "the evidence of the two breaches of the recognizancescould have affected the weight given to the favourable presentence report and could therefore have affected the final sentencing decision.In particular, the Court of Appeal might have reached a different conclusion if it had admitted that evidence, which would have helped itin assessing the fitness of the sentence that had been imposed at trial": at para. 120.

In my view, applying similar reasoning, the fact that the appellant breached the driving prohibition that was a condition of hispresentence release also demonstrated a lack of respect for court orders and the law… And further on at paragraph 20: I would accept the submission of the Crown because it does not appear that the British Columbia Court of Appeal considered the portion

of the Lacasse decision that discussed the fresh evidence and the effect that breaches of recognizance could have on a court's sentencing decision. In Lacasse , there had also been a guilty plea to the breaches, and M. Lacasse was sentenced to an additional 15 days' imprisonment. But that did not prevent the Supreme Court from saying that the Court of Appeal should have taken the breaches into account when assessing the fitness of the sentence imposed at trial.

c) Whether to make a separate prohibition order for Mr. Wright? [ 89 ] There were no allegations that Mr. Wright breached his bail that will interfere with the amount of credit to be attributed to the bail term that prohibited him from driving. I also note that, pursuant to subsection 41(1)(

f) of the Highway Traffic Act , Mr. Wright’s licence was automatically suspended for a period of one year upon conviction for his first offence of dangerous driving. This suspension is running concurrently with the bail term while he has been awaiting sentencing. When structuring this sentence, I have considered that Mr. Wright is subject to a provincial licence suspension and the Ministry of Transportation may require him to take remedial programs as a result of this conviction and his driving record. [ 90 ] The bail term prohibiting Mr. Wright from driving has been undoubtedly punitive for him.

He diligently maintained his employment, which required him to travel to different sites, by paying for alternative means of transportation at substantial personal expense. He was embarrassed because he had to disclose that he was struggling with legal troubles to secure the assistance of friends for rides when he could not afford drivers. He also had to pass up on different job opportunities. [ 91 ] The loss of the privilege to drive is a punishment that is rationally connected to the nature of this offence. If you abuse your driving privileges, you lose your driving privileges.

Simply put, the punishment fits the crime. In R. v. Nickerson , [2019] O.J. No. 5428 at para. 43 (Ont.C.J.) , I noted that: Lengthy jail sentences are not the only means to accomplish general deterrence and denunciation. Driving is a privilege that provides substantial convenience in our daily lives. Depending on where a person resides, it may be a necessity in order to get to and from work or other commitments. The loss of that privilege for an extended period of time can be a very significant punishment. In R. v. Frickey , [2017] O.J.

No 6887 at paras 4 and 10 , the Ontario Court of Appeal recognized that it is important to consider the propriety of a sentence as a whole: The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first- time offenders and otherwise law-abiding citizens. In these circumstances, the driving prohibition serves as the most practical means to ensure the protection of the public. [ 92 ] The Ontario Court of Appeal did not interfere with the 5-year driving prohibition imposed by the trial judge in R. v. Chiasson, supra.

Nevertheless, the 2-year licence prohibition advocated by the crown, in addition to the 20 months of being bound by bail terms prohibiting him from driving, would be unduly punitive and interfere with Mr. Wright’s prospects for rehabilitation. [ 93 ] I agree with counsel that the restrictions prohibiting Mr. Wright from driving ought to form part of his conditional sentence as opposed to a separate order to avoid a delayed commencement of the driving prohibition.

In addition, he “must be” given credit for the full period that he has been prohibited from driving when determining the total length of the restriction of his driving privileges. Mr. Wright’s continued employment and his future aspirations are dependent on his ability to drive. I will craft terms of the conditional sentence and the probation order that will restrict his driving privileges while still ensuring his ongoing rehabilitation by facilitating his ability to work productively in the community. D. Conclusion: [ 94 ] Certainly, an unequivocal message must be sent to other like-minded offenders and Mr.

Wright that our Courts will not countenance any conduct that jeopardizes the lives and wellbeing of police officers engaged in the execution of their duties to serve and protect our community. Officers Scholtes and Richer were trying to guard the safety of the public by ensuring that a possible impaired driver was taken off the road. They were performing their duties professionally and respectfully. Instead of complying with Cst. Scholtes’ reasonable directions, Mr. Wright verbally abused these officers and endangered their lives.

I am not in any way diminishing the seriousness of these offences or ignoring the importance of protecting police officers from these kinds of crimes. [ 95 ] I recognize however, that Mr. Wright is standing at a cross-road in his young life. If I were to sentence him to a period of incarceration to reflect the seriousness of the offences, it would risk sending him along the wrong path and destroying the progress that Mr. Wright has made to better himself since these offences. The terrible choices that he made on March 13 th , 2019, could leave an indelible mark on his future. Ensuring that Mr.

Wright stays on the right path by serving his sentence in the community is also a means to protect the public from any future offending behaviour and hold him accountable for his crimes through a creative but meaningful sanction. [ 96 ] After considering all the principles of sentencing, the guiding legal precedents and the aggravating and mitigating factors, I have decided that a fit sentence is 2 days of pretrial custody (PTC) to be the equivalent of 3 days and an 18-month conditional sentence to be followed by 2 years of probation.

This is the least onerous sentence that is consistent with the purposes and principles of sentencing. [ 97 ] I will reduce the overall appropriate sentence by 6 months to account for the “ Downes ” credit for the punitive impact of the bail conditions. As a result, Mr. Wright’s conditional sentence will be 12 months in duration. During the first nine months of his conditional sentence, he will be subject to house arrest terms with exceptions as set out in

Schedule 1. For the last 3 months of his conditional sentence, he will have curfew conditions with exceptions while travelling for employment purposes and other listed exceptions. Mr. Wright will also be required to participate in counseling and refrain from possessing any non-medically prescribed drugs including marijuana. He has already performed a significant number of community service hours.

Instead, he should focus on his schooling, maintaining a job and any counselling that he needs to address why he committed these offences. [ 98 ] There is one additional creative term that I am adding to the conditional sentence to address the unique circumstances of this case. An expression of remorse and an explanation would have been very meaningful for Cst. Scholtes and Cst. Richer. Unfortunately,

neither of these police officers will ever receive the apology they deserve from Mr. Wright or any acknowledgement that Cst. Scholtes chose to risk his own life rather than risk taking Mr. Wright’s life. Ordering Mr. Wright to write a letter of apology would be hollow and meaningless. However, he can express what he has learned through this process and, potentially, his regret through another medium. [ 99 ] As a term of the conditional sentence, Mr. Wright will be ordered to write an essay of at least 1500 words about the life and death of Cst.

Garrett Styles, the impact of his death on his family and the community and the consequences that the offender S.K. suffered as a result of his choices. The essay must be completed to the satisfaction of the conditional sentence supervisor within the first 90 days of the commencement of the order. Hopefully, through this process, Mr. Wright will realize how fortunate he was that his choices did not result in similarly tragic consequences. [ 100 ] In terms of the driving prohibition, a total of three years is appropriate. If one of the factors that motivated Mr.

Wright to leave the scene was to avoid an arrest for impaired driving, this prohibition is three times the length that he would have been sentenced to if he was convicted of impaired driving. This consequence is a disincentive for anyone who is thinking of failing to comply with a roadside impaired driving investigation and speed away from the scene. [ 101 ] I will reduce the total driving prohibition by 20 months to reflect the period of time that Mr. Wright was prohibited from driving while on bail.

This will leave a balance of 16 months during which his driving privileges will be impacted because of his misconduct. [ 102 ] To avoid the driving prohibition commencing after the end of the conditional sentence, I will not make an independent prohibition order. Rather, it will be a term of his conditional sentence and his subsequent probation order. The term will initially prohibit him from operating a motor vehicle or occupying the driver’s seat of a motor vehicle for a period of 9 months.

For the last 3 months of his conditional sentence and, subsequently, for the first 4 months of his probation order, he is not to operate a motor vehicle or occupy the driver’s seat of a motor vehicle unless he is validly licenced by the Ministry of Transportation and only for the purpose of travelling directly to, directly from and during the course of employment that has been approved of in advance by his conditional sentence supervisor/probation officer. The remaining terms of probation are set out in

Schedule II. [ 103 ] The sentence will be attributed as follows: Count 1: dangerous driving: 2 days PTC = 3 days + 6 months conditional sentence + 2 years of probation Count 2: assault police: 6 months conditional sentence consecutive + 2 years of probation + a

section 110 weapons prohibition for 2 years + a DNA order with an execution time of 4 p.m. Count 4: Resist arrest: 6 months conditional sentence concurrent + 2 years of probation [ 104 ] I sincerely hope that Mr. Wright will continue to thrive and succeed in the future. I also hope that he will never forget that his future is possible in part because two remarkable police officers chose to risk their lives to spare his life. This sentence ensures that he receives meaningful and punitive consequences for his crimes but, gives him an opportunity to prove that those few minutes in his young life do not define who he is as a person or determine who he will become in his adulthood.

Schedule I Terms of the 12 months Conditional Sentence Order • Keep the peace and be of good behavior; • Appear before the court when required to do so; • Notify the Court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation Reporting: • Report in person or by telephone to a conditional sentence supervisor: o within 2 working days; o and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision. • you must cooperate with your conditional sentence supervisor.

You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request. Residence:

• you must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor. Travel restrictions: • Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor.

Curfew: • For the first 9 months of your conditional sentence order you will remain in your residence or on the property of your residence at all times except: o on Saturdays between the hours of 1 p.m. to 4 p.m. in order to acquire the necessities of life; o on December 24 th , December 25 th and January 1 st when you are permitted to be outside of your home without a curfew to celebrate the holidays; o for any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours; o while travelling directly to, directly from and while attending at your pre-scheduled legal, medical or dental appointments; o while travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs; o while travelling directly to, directly from and during the course of your employment; o while travelling directly to, directly from and while attending at your place of education or career counselling; o with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and o for carrying out any legal obligations regarding compliance with this conditional sentence order. • You must confirm the

schedule for any of these exceptions to your period of home confinement by telephone or in person in advance with the conditional sentence supervisor setting out the times for these activities; • For the last 3 months of your conditional sentence order you will remain in your residence or on the property of your residence between the hours of 10 p.m. to 6 a.m. daily, except: o for any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours; o while travelling directly to, directly from and during the course of your employment; o with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and o for carrying out any legal obligations regarding compliance with this conditional sentence order; • You must present yourself at your doorway of your residence upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement and curfew conditions.

Essay: • You must write an essay of at least 1500 words about the life and death of Cst. Garrett Styles, the impact of his death on his family and the community and the consequences that the offender S.K. suffered as a result of his choices ; and • This essay must be written to the satisfaction of your conditional sentence supervisor within the first 90 days of the commencement of the conditional sentence. Drugs:

• Do not purchase, possess or consume any marijuana or any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act except in accordance with a valid prescription in your name.

Counselling and Treatment: • Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor; • You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; • You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed Additional terms – Driving Prohibition: • For the first 9 months of your conditional sentence, you are not to occupy the driver’s seat of a motor vehicle or operate a motor vehicle and you shall not possess any car keys or car key fobs; • For the last 3 months of your conditional sentence, you are not to occupy the driver’s seat of a motor vehicle or operate a motor vehicle unless you possess a current valid driver’s license issued by the Ministry of Transportation in Ontario and unless you are travelling directly to, from and during the course of employment that has been approved of in advance by your conditional sentence supervisor.

Schedule II Terms of the two-year Probation Order Statutory conditions: • Keep the peace and be of good behavior; • Appear before the court when required to do so; • Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

Reporting: • Report in person or by telephone to a probation officer: o within 5 working days of the completion of your conditional sentence; o and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. • Your reporting requirements will end when you have satisfied your probation officer that you have completed all of your counselling. • You must cooperate with your probation officer.

You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request. Counselling and Treatment: • Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer; • You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance

and completion of any assessments, counselling or rehabilitative programs as directed; and • You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed. Additional terms: For the first 4 months of your probation order, you are not to occupy the driver’s seat of a motor vehicle or operate a motor vehicle unless you possess a current valid driver’s license issued by the Ministry of Transportation in Ontario and unless you are travelling directly to, from and during the course of employment that has been approved of in advance by your probation officer.