R. v. Caines, 2019 ONCJ 348

CITATION: R. v. Caines , 2019 ONCJ 348 DATE: April 5, 2019 Information No. 18-1059 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LAWRENCE CAINES REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on April 5, 2019 at ORANGEVILLE, Ontario APPEARANCES : R. Fetterly Counsel for the Crown A. Faeoring Cruich Counsel for Lawrence Caines FRIDAY, APRIL 5, 2019 PUGSLEY J. (Orally): Lawrence Caines is before the court for sentence after pleading guilty to five Criminal Code offences, all stemming from a brief period of time last September.

On September 7th, 2018, the defendant took a relative's 2017 Dodge Ram pick-up truck without their permission. He drove from his home in Toronto north into Grey County. In the early morning hours of September 8th, 2018, Ms. A. was driving with two friends southbound on Highway 10 in Grey County between Holland Centre and the hamlet of Berkley. Her passengers were Mr. D. and Mr. R. They had been fishing earlier that day. In

the area where they were driving they were on Highway 10, which at that place passes through a lonely, rural area. Sometime after 2:00 a.m., they came upon the defendant's pick-up truck which was stopped in the middle of the road with its four-way flashers activated. The defendant was out of his vehicle and waved at them as they approached, but then jumped back into the pick-up truck and drove off southbound ahead of Ms. A.'s car. Roughly 500 metres later the defendant stopped the pick-up again. As Ms.

A.'s vehicle approached and stopped, the defendant then reversed the pick-up truck and backed slowly towards them on the roadway. The defendant and a witness momentarily got out of the vehicles, and then the witness got back into the car and Ms. A. drove around the defendant's truck on the gravel shoulder. They then continued southbound on Highway 10, now ahead of the defendant, and still in Grey County. The defendant's pick-up drove up behind them, still with the four-way flashers active and repeatedly flashed his headlights at their vehicle from behind. The defendant then drove his pick-up into the rear of Ms.

A.'s car while both vehicles were moving at highway speeds southbound on Highway 10. One of her passengers called 9-1-1 at 2:43 a.m. and was connected to the OPP dispatcher. The defendant continued to follow and rammed Ms. A.'s car from behind at highway speed again, this time causing her to nearly lose control of her vehicle. At this time, they were approaching the village of Markdale where there is an OPP detachment. Ms. A. was upset and crying and pulled off the road into a gas station. The defendant stopped his truck on the roadway in front of the gas station. While Ms.

A was stopped, the defendant accelerated his pick-up truck into the car, spinning it around 180 degrees. The defendant then reversed and once again hit the car hard. At this point, an ambulance came up and the defendant disengaged from Ms. A. and her passengers, and drove off southbound on Highway 10 from Markdale. Ms. A. and her passengers were badly shaken and emotionally traumatized. Their car had to be written off. Mr. Caines' lack of car insurance complicated their monetary recovery.

Markdale OPP soon located the defendant's pick-up truck and used their emergency equipment in an attempt to get the defendant to pull over near Flesherton on Highway 10 southbound. The defendant did not stop but continued to drive south. Markdale OPP officers obtained the licence plate and noted extensive damage to the pick-up. When the defendant continued to flee, they discontinued the pursuit in the interests of the public but continued to follow. Sergeant Beaton of the Dufferin County OPP detachment was directed to Highway 10 at the north end of this county to watch for the defendant's vehicle.

At 3:09 a.m., he saw the defendant's pick-up truck driving southbound on Highway 10, now in Dufferin Cou nty, still with the four-way lights flashing and with one of its headlights now out. He too did not pursue the defendant in the public interest, but followed it at a distance and relayed the defendant's position as they drove south through the county towards the town of Shelburne. Shelburne Police Service set up to watch for the defendant in their police cars and spotted his truck there at 3:13 a.m.

Two Shelburne Police cruisers tried to pull the defendant over with their activated emergency equipment but the defendant did not stop. They too then discontinued the chase, but followed the defendant as he drove through and around in Shelburne. Sergeant Beaton of the OPP continued to follow. The defendant left the east side of Shelburne and started to drive north on County Road 124 with the police continuing to follow.

On County Road 124, the defendant sped up and was at times observed by Sergeant Beaton to be driving between 90 kilometres per hour and 161 kilometres per hour in his damaged pick-up truck in an 80 kilometre per hour speed zone. Huronia OPP set up a spike belt on County Road 124, now in Clearview Township in Simcoe County, the third county engaged here. The defendant drove his pick-up truck over the spike belt, which deflated the tires and reduced his speed to about 50 kilometres per hour, but he continued to drive.

Sergeant Beaton passed the defendant, pulled ahead of him and braked in an attempt to force the defendant's vehicle to stop, but instead the defendant evaded the officer's cruiser and passed it and continued to drive. When Sergeant Beaton again attempted to pass the defendant to do a rolling stop, the defendant deliberately drove his pick-up truck into the side of Sergeant Beaton's OPP cruiser causing both vehicles to spin out. The defendant exited his truck and was immediately confrontational with the police. His actively resistant behaviour continued even after he had been stunned by a conductive energy device.

Eventually, he was apprehended and taken into custody. The defendant has pled guilty to five charges on the multi-count Informations. First, subsection 335(1) of the Criminal Code , taking the pick-up truck without the owner's permission. Second, paragraph 249(1) (

a) of the Criminal Code , dangerous driving. Third, subsection

252 of the Criminal Code , leaving the scene of an accident, that being the accident with Ms. A.'s vehicle. Four, subsection 249.1(1) of the Criminal Code , failing to stop for police. And fifth, subsection 129 (

a) of the Criminal Code , resisting his lawful arrest. On all of these charges, except the take automobile without owner's permission, the Crown elected to proceed by indictment, engaging a five-year maximum sentence. Mr. Caines was held for a bail hearing after his initial arrest. After 19 days in custody, he was released on a recognizance with a surety. On October 30th, 2018, his surety surrendered him, and he has been in custody since that date.

In total, the defendant has been in pre-sentence custody for 177 days on a one to one and a half basis, a further 89 days' credit is added, for a total time served credit of 266 days. Counsel agreed, for brevity purposes, that the pre-sentence credit should be summarized as 9 months. The defendant has a criminal record reflecting 12 prior sentencings on some 41 different counts. Three involve drinking and driving offences. The last entry, however, was in July of 2009. Exhibit 2 represents two informal victim impact statements received by email. The three individuals in Ms.

A.'s car, as noted previously, were shaken up physically and also have had significant psychological effects as a result of the defendant's action. A pre-sentence report identifies significant past trauma that this defendant suffered in his youth – he is 51 now - difficulties with substance abuse and mental health struggles. To date, he has engaged medical and counselling assistance on a relatively sporadic basis, and has had very limited success in facing, in particular, his serious mental health issues.

The defendant has pled guilty and has accepted responsibility before his community for the events of September 7th and 8th of 2018. He spoke before sentencing of his contrition, and he apologized to the victims and to his family. In custody, he has seen a counsellor on a weekly basis. He appears to have some fresh insight as to the best way forward in dealing with his multiple medical issues. Both counsel correctly acknowledged that there must be a significant role for general and specific deterrence in my sentence today. Ms.

A. and her passengers did nothing wrong, but were relentlessly targeted by the defendant who used his relative's large, multi-tonne pick- up truck as a weapon and battering ram repeatedly. He then callously drove off after wrecking their vehicle. Luckily, the complainants suffered little physical injury, but their emails speak of the understandable emotional trauma they suffered, trauma that continued to affect them to the date of the emails. Both counsel referenced some case law on somewhat or sometimes, similar past cases.

Case law here underlines more than anything that the facts of each case drive the ultimate decision on the length of sentence. The Crown seeks global sentence in the range of 18 to 24 months in jail, less the nine months' credit for pre-sentence custody, leaving a range after credit for pre-sentence custody of nine to 15 months. The defendant submits that a global sentence of 12 months less pre-sentence custody is fit and proper on these facts, considering the defendant's plea of guilt, his antecedence, and the fact that no one was injured here.

Both counsel agree that a lengthy period of probation with healing terms is appropriate, including on consent a treatment term, and that a driving prohibition and DNA order is proper.

Notably, the defendant's health status has improved while in custody where his distractions and options to self-medicate are perhaps more constrained. I agree, however, that a key component to my sentence must be to deter this defendant and others who deliberately attack innocent individuals with large motor vehicles, drive off from the scene of that attack and lead the police on kilometres long high speed chases. The potential for a horrific injury or death to the defendant, to the police, to the complainants and to the general public at large is all apparent here. The pursuit engaged rural and town locations.

Even when his vehicle was disabled by the spike belt, the defendant did not stop, but evaded and then deliberately rammed Sergeant Beaton's police car. A significant period of jail is required here to deter the defendant and others. The defendant, while having no recent record, comes before the court with three past drinking and driving convictions, which engaged fines and jail. Having been released from custody, he was shortly surrendered into custody by his surety, and has built up a considerable period of time prior to his plea.

While I note the defendant's antecedence, I also note that in the past he has been on probation where some of those issues could have been dealt with, or he could have sought out assistance. While I believe that the defendant now wants the help he so obviously needs, my biggest concern today is to protect the public from the defendant and those like him who would seek to avoid being caught by dangerous and criminally irresponsible driving. A significant sentence approaching the two years asked for by the Crown is required here, even on a plea.

By their election to proceed by indictment, a five year maximum sentence is engaged. In my view, the range suggested by the Crown is indeed appropriate and supported by the case law provided to me, even considering the fact of the plea. In my view, the best progress that the defendant has made recently has been while he was being treated in custody. It is my hope that that treatment may be continued, and indeed expanded, before he is released. I will ask you to stand up now, please, Mr. Caines.

In my view, the appropriate global sentence here is as follows: On the multi-count Information on count one of dangerous driving, the appropriate sentence is 18 months, less than 9 months of pre-sentence custody credit. That leaves you with nine further months to serve. On the leaving the scene of the accident, the sentence is three months to be served concurrently to the dangerous driving sentence, so it is still nine. On the fail to stop for police, however, there must be a consecutive sentence, in my view, three months consecutive is appropriate. We are now up to 12 months.

On count six, three months concurrent, on the take auto without owner's consent, three months concurrent, for a total sentence of one year of further custody. I recommend strongly that your sentence be served at the Ontario Correctional Institute in Brampton. In order to assist the authorities in considering that request, a copy of the pre-sentence report will be made available to them together with a transcript of these reasons. You will also be prohibited from driving anywhere in Canada for three years on the dangerous driving allegation. You will be placed as well on probation for three years.

The terms are that you keep the peace and be of good behaviour; return to court if required; report to and be under the supervision of a probation officer as soon as you are released from custody; take such counselling, assessment and/or treatment for substance abuse and mental health issues as may be directed by your probation officer; and cooperate in information going back to the probation officer so they know how you are doing with that counselling assessment and treatment, including signing releases so they can talk to the service providers directly.

You will not associate directly or indirectly, except through legal counsel, with Ms. A., Mr. D. and Mr. R., and you will not attend their place of residence, employment or any other place you know those individuals to be, and you will not possess any weapons as defined by the Criminal Code . The dangerous driving, the leaving the scene of an accident and the resisting arrest are all secondary DNA offences, and there will be a DNA sample taken downstairs. Do you understand the terms of your probation, sir? LAWRENCE CAINES: Yes, I do. THE COURT: As you know, it is a serious matter to breach a court order.

It could lead to further jail. Do you understand that warning? If this order needs to be reviewed or changed, or if you are doing spectacularly well and the probation order should be ended early, you can ask the court to consider changing the order or ending the probation order early. You can make that request through your probation officer or by coming here to the courthouse, or through your lawyer and a judge will decide if the order should be changed. In a few minutes you will get a copy of this order downstairs. Please make sure you understand your rights and your duties under the probation order.

If you have any questions, your lawyer or your probation officer will sort those out. The other charges, Mr. Fetterly? MR. FETTERLY: They would be withdrawn, including the HTA matter. I would ask Your Honour to consider, and I did discuss this with my friend after our submissions, but in Your Honour's absence, a 110 order, which I think would be applicable as

an act of violence against the three occupants of the other vehicle. THE COURT: Which

section is that authorized under? MR. FETTERLY: 110. Or pardon me.

THE COURT: No. Which of the charges to which a conviction has been.... MR. FETTERLY: The 249. THE COURT: The dangerous driving? MR. FETTERLY: Dangerous driving. THE COURT: Any issue with respect to the weapons prohibition? MR. FAEORING CRUICH: No issue. THE COURT: For five years, you will not possess any weapons, or a firearm or explosive device under

section 110 of the Criminal Code . That will be an added form that the court will prepare and serve on you. All right? Thanks very much, counsel. Thank you, sir. MR. FETTERLY: Thank you, Your Honour. THE COURT: Good luck. Thanks for coming in support of Mr. Caines today. I am hoping he gets further help at OCI. They are renowned for helping people like him, if he gets in there. Thank you. MR. FAEORING CRUICH: Thank you, Your Honour. ...PROCEEDING ADJOURNED