R. v. Salandra, 2016 ONCJ 79

Information No. 15-001086 CITATION: R. v. Salandra , 2016 ONCJ 79 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MARIANNA SALANDRA REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on January 8, 2016, BRAMPTON, Ontario APPEARANCES: Mr. R. Lemke Counsel for the Crown Mr. D. Sederoff Counsel for Mariana Salandra ONTARIO COURT OF JUSTICE

TABLE OF CONTENTS Ruling 1 Transcript Ordered: January 12, 2016 Transcript Completed: February 7, 2016 Ordering Party Notified: February 7, 2016 FRIDAY, JANUARY 8, 2016 INTRODUCTION Marianna Salandra pled guilty before me to a charge of impaired driving causing bodily harm, contrary to section 255(2) of the Criminal Code of Canada . Ms. Salandra entered her plea on July 28, 2015. The matter was adjourned on that date to allow for the preparation of a pre-sentence report and to afford the victim an opportunity to prepare a victim impact statement. I heard sentencing submissions on November 2, 2015.

The parties are not agreed on the appropriate sentence in this case. On behalf of Ms. Salandra, Mr. Sederoff submits that, in all of the circumstances, a sentence of three months imprisonment, to be served intermittently, would be appropriate. He argues that Ms. Salandra should be prohibited from driving for two-years. In contrast, Mr. Lemke, for the Crown, emphasizing the victim’s very significant injuries, argues that a sentence of nine-months imprisonment is warranted, followed by one year probation, and a three-year driving prohibition. After hearing submissions I reserved judgment to today’s date.

These are my reasons for sentence.

CIRCUMSTANCES OF THE OFFENCE On Sunday January 18, 2015, at 3:28 in the morning, police were called to the intersection of Lakeshore Road East at Delta Road, in the City of Mississauga, in response to a report regarding a collision involving two motor vehicles. The police attended the location and observed the two vehicles in the westbound curb lanes of Lakeshore Road East. From their observations, it appeared to police that Ms. Salandra’s vehicle had rear-ended the victim’s vehicle; with both vehicles sustaining considerable damage. From speaking with witnesses, police were able to identify Ms.

Salandra as the driver of her vehicle. While speaking with her, officers noted a strong odour of an alcoholic beverage emanating from her breath, she appeared to be unsteady on her feet, and her eyes were bloodshot. Based on this collection of circumstances, the police formed grounds to believe that Ms. Salandra’s ability to operate a motor vehicle was impaired by alcohol. As a result, at 3:48 a.m., she was arrested for impaired operation of a motor vehicle causing bodily harm. At that point, she was apprised of her rights to counsel, cautioned, and was read an approved instrument breath demand.

She acknowledged understanding all of this. Ms. Salandra was then transported to 11 Division for the purpose of breath testing. She provided two samples of her breath, the first at 4:55 a.m., the second at 5:18 a.m. Based on the analysis of those samples, her truncated blood alcohol readings were 140 milligrams of alcohol in 100 millilitres of blood. The victim, Giueseppe Meta, was working as a pizza delivery driver on the morning in question. At the time of the collision, the victim’s vehicle was parked at the curb, just past a bend in the road, but with his four-way flashers activated.

He was just reaching into the rear of his vehicle to remove some pizza he was in the process of delivering, when Ms. Salandra drove into the rear of his vehicle. The force of the impact caused Mr. Meta’s vehicle to move and strike him, which led to him being thrown down the road. Mr. Meta suffered serious injuries and was transported to hospital by ambulance. His injuries included: • Traumatic lacerations to his liver, kidney and spleen; • A puncture wound to his right knee; • A punctured lung; • Six broken ribs; and • A hemothorax requiring the insertion of a chest tube. In order to treat his injuries, Mr.

Meta underwent a number of surgeries, including an operation to remove part of his left lung, surgery to his knee, and surgery to his spleen. He received four blood transfusions. In terms of the ongoing physical impact of these injuries on Mr. Meta, he reports that he is in constant pain, that he experiences chronic headaches and dizziness, and pain in his neck, upper body, lower body and back. His mobility has been adversely impacted, such that he requires assistance to get dressed and undressed, to bathe, and to get in and out of bed.

Although he has been attending for physiotherapy and other rehabilitative treatments, two to three times per week, he reports that these efforts only result in temporary relief. Unfortunately, it would appear that the physical healing process for him is progressing rather slowly. The psychological impact of these events on Mr. Meta is nothing short of profound. Given his inability to work he reports being in a constant state of anxiety. He is plagued by worries that he will be unable to make ends meet and to support his family.

He reports that the anxiety he experiences has interfered with his ability to enjoy life. He indicates that: he is irritable; has difficulty sleeping, even with the aid of sleeping pills; that he now avoids social activities; and finally, that his injuries, both physical and psychological, have

adversely impacted his relationship with his wife. Thankfully, Mr. Metta is seeing a psychiatrist to help him cope with the emotional trauma that has accompanied his physical injuries. Finally, in terms of the financial impact of these events, due to his injuries, Mr. Meta has been unable to return to work. Further, his wife was forced to take a temporary leave of absence from her employment to assist with his care. The family is currently getting by on his wife’s salary, and funds periodically advanced by an insurer. He reports that without his income, the family is struggling financially.

They were forced to give up their home and move into an apartment. He reports that they are barely able to make ends meet. He expressed a concern to the author of the pre-sentence report that the family is on the verge of losing everything. In

summary, this offence occasioned significant physical, psychological and financial consequences for the victim, Mr. Meta. In describing the impact of these events on his life, he explained to the author of the pre-sentence report that he has been “crippled; emotionally, physically, and financially”. CIRCUMSTANCES OF THE OFFENDER Ms. Salandra is 26 years of age. She was born and raised in Mississauga, where she grew up the middle child in a loving and supportive family.

She enjoys a close relationship with her parents, her grandparents, her siblings and her extended family, consisting of many aunts, uncles, and cousins. Unlike many of the unfortunate individuals who come before this court for sentencing, Ms. Salandra has had a very privileged upbringing, which was, thankfully for her, free of abuse, neglect or mistreatment. Ms. Salandra graduated from high school in 2007. She attended college after high school, where she studied journalism, but ultimately left her program during her second year of studies due to some health difficulties. After leaving college, Ms.

Salandra was employed for two years as a taxi dispatcher. She eventually left that job, and took a position with a local business supply company for a year. She left that position and became involved with a youth employment program. Through that program, she was placed at the Yonge Street Mission, where she completed a ten-week placement. Apparently, she made a very positive impression there. So much so, that in December 2013, they offered her a full-time position as their Volunteer Resources Coordinator. Ms. Salandra has remained in that position ever since.

By all accounts, she has excelled in that job, winning several volunteer awards for outreach and pilot projects that she has spearheaded. Ruth Pentinga, her supervisor at the Yonge Street Mission, describes her as an exceptional member of the staff and as a person of extremely good character. A number of letters were filed at the sentencing hearing, from family members, friends and acquaintances. All of these attest to Ms. Salandra’s good character.

They uniformly describe her as a kind, generous, thoughtful and compassionate person, who demonstrates true selflessness in the extraordinary lengths she consistently goes to in order to help others. Based on these letters, it is apparent that the offence that brings Ms. Salandra before the court is entirely out of character for her. Ms. Salandra has suffered from depression in the past. It was a deep depression that set in after her health difficulties in her second year of college studies that led to her leaving school. Apparently, since being charged, those feelings returned again. Thankfully, Ms.

Salandra has been meeting with a psychotherapist regularly since June 2015, and her mental health is improving. It is clear that Ms. Salandra is extremely remorseful for her actions. This is apparent from her comments to the author of the pre- sentence report, as well as from letters filed from her family, friends, and her psychotherapist. Her remorse is also evidenced by her guilty plea. Although that plea came six months after she was charged, it is clear that Ms. Salandra’s intention from very soon after being charged was to plead guilty and to take responsibility for her actions.

Finally, it bears mentioning that Ms. Salandra would not appear to have a problem with alcohol or drugs. The materials placed beforeme establish that she is, at best, a social drinker. It would appear that on the evening in question Ms. Salandra was out with friends,clearly drank too much, and in her drunken condition, with her judgment compromised by her state of intoxication, made the veryunfortunate decision to drive home, with calamitous results for Mr. Meta. THE APPROPRIATE SENTENCE The Criminal Code provides that the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of ajust, peaceful and safe society” (Criminal Code,

section 718). Generally, this is accomplished by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives:denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility inoffenders and acknowledgment of the harm done to victims and the community (Criminal Code, ss. 718(

a) through (f)). That said, as the Supreme Court of Canada noted just last month, in cases like this, where an impaired driver has caused a death orcaused bodily harm, “courts from various parts of the country have held that the objectives of deterrence and denunciation must beemphasized in order to convey society’s condemnation.” R. v. Lacasse, 2015 SCC 64 at paragraph 5. This is the very same message that our Court of Appeal has repeated time and time again. See R. v. McVeigh, (1985), (ON CA), 22 C.C.C. (3rd) 145 at 150 to 151 (Ont. C.A.); R. v. Ramage, 2010 ONCA 488 at paragraphs 74 to 75; R. v.

Junkert, 2010ONCA 549 at paragraphs 46 to 47. The emphasis in sentencing for impaired driving causing bodily harm on the objectives of general deterrence and denunciation hassignificant implications for someone like Ms. Salandra. Ordinarily, when sentencing a youthful first offender, the focus would be onspecific deterrence and rehabilitation. These objectives would normally counsel against the imposition of custodial sentence. See R. v. Stein, (1974), (ON CA), 15 C.C.C. (2nd) 376 at 377 (Ont. C.A.); R. v. Priest, (1996), (ON CA), 110 C.C.C. (3rd) 289 at 294 to 296 (Ont. C.A).

This is in keeping with the principle of restraint, now codified in ss. 718.2(

d) and (

f) ofthe Criminal Code. However, given the very serious nature of the offence of impaired driving causing bodily harm and the resulting emphasis on generaldeterrence and denunciation, a sentencing judge’s options narrow considerably.

As the Supreme Court of Canada noted in Lacasse, atparagraph 6: While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all casesin which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonmentfor meeting these objectives, which are essential to the maintenance of a just, peaceful and law abiding society. It is, therefore, not at all surprising that in the circumstances of this case, even though Ms.

Salandra is a youthful first offender ofpreviously unblemished character, both the Crown and the defence are agreed that a sentence of imprisonment is required. In arriving at the appropriate sentence, the parties are also in agreement that this is not a situation where either specific deterrence orrehabilitation are live concerns. In terms of specific deterrence, given Ms. Salandra’s insight into the magnitude of her offence and its consequences, and herconsiderable remorse, I have no doubt that she will never drink and drive again.

In terms of her rehabilitation, as noted before, there is no underlying alcohol problem that needs to be addressed. More generally, it isapparent that Ms. Salandra is a person of good character, hardworking, kind, compassionate, generous and pro-social in every way. I am

satisfied that her offence was truly an aberration; the result of a drunken lapse in judgment. I have no doubt that in future Ms. Salandrawill return to being a law-abiding and productive member of society. What remains, then, is the need for a sentence that is sufficiently severe that it will serve to deter others in the community from drinkingand driving. And, just as importantly, in my view, a sentence that will serve to denounce Ms. Salandra’s conduct and thereby expresssociety’s condemnation for her crime.

As already noted, what separates the parties is a difference of opinion on the length of thesentence that is necessary to serve these sentencing objectives. Since hearing submissions on this matter, I have carefully reviewed the cases referenced by the parties during oral argument and in theirwritten materials. In conducting this review, I have been mindful of the principle that: “A sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances.” See Criminal Code, ss. 718.2(b).

There is a very wide range of sentences imposed by courts where an individual is being sentenced for a single count of impaired drivingcausing bodily harm. At the low end of the range would appear to be sentences of 2 to 3 months imprisonment. See R. v. Sinnarasa, (2005), 23 M.V.R. (5th) 279 (Ont. S.C.); and R. v. Rooplal, 2009 ONCJ 613. In contrast, 18 months imprisonment would appear to bethe upper end of the range. See example, R. v. LaForme, 2014 ONCA 367.

From my review of the case law, two variables would seem to be most pertinent in fixing the sentence duration for those sentenced forimpaired driving causing bodily harm: 1) The offender’s character, of key importance is if they have a prior criminal record, andespecially if it is related; and 2) The nature, severity and lasting effects, if any, of the victim’s injuries. In my view, the significance ofthese two variables in the determination of an appropriate sentence makes eminently good sense and is tied directly to the need to imposea proportionate sentence.

The fundamental principle of sentencing is the sentence imposed must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. This long established tenet of the sentencing process is now expressly contained in the Criminal Code (seesection 718.1) and also recognized as a principle of fundamental justice constitutionally guaranteed by

section 7 of the Charter. See R. v.Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 at paragraphs 36 to 37; R. v. Anderson, 2014 SCC 41 , [2014] 2 S.C.R. 167at paragraphs 21 to 22. To be proportionate, the sentence imposed must reflect the seriousness of the offence, the degree of culpabilityof the offender and the harm occasioned by the offence. In arriving at the appropriate sentence, a sentencing judge must have regard tothe aggravating and mitigating factors in the particular case. See Priest, supra, at pages 297 to 298; Ipeelee, supra, at paragraphs 36 to39. Here, the harm occasioned by Ms.

Salandra’s offence is considerable. Because of Ms. Salandra’s crime, Mr. Meta suffered extremelysignificant physical, psychological, and financial consequences. His life has been profoundly altered because of Ms. Salandra’s actions. In my view, the authorities clearly establish that the more severe the consequences for the victim the more severe the sentence thatshould be imposed. That said proportionality is not simply a function of the impact of the offence on the victim. In assessing an offender’s degree ofculpability for the offence, mitigating considerations must also be taken into account.

In this case, there are a number of mitigatingfactors, including: Ms. Salandra’s relative youth, her guilty plea, her considerable remorse, her lack of any prior criminal record, and thefact that she is clearly a person of previously good character.

In the end, after considering the relevant principles and objectives of sentencing, the sentencing decisions of other judges who haveimposed sentences for this offence, along with the aggravating and mitigating features of this case, I have concluded that it would not beappropriate to accede to the positions advanced by either party in terms of the sentence duration that each side proposes.

With respect to the position of the defence, although some judges have agreed to impose a sentence in the intermittent range for thisoffence, based on my review, those cases would all appear to involve situations where the injuries occasioned to the victim were far lesssevere and far more transient than the injuries suffered by Mr. Meta. In my view, a 90-day sentence would simply be inadequate to thetask of denouncing Ms. Salandra’s conduct, in light of the extent of the harm that has been occasioned to Mr. Meta.

At the same time, based on my review of the case law, I think the Crown’s request for a 9-month sentence would result in a sentence that is longer than what is necessary to deter others from engaging in similar behaviour and to denounce this crime. In that regard, I note that the accused in R. v. Harrington, 2012 ONSC 5363 received a 9-month sentence of imprisonment and a 3-year driving prohibition for driving with excess blood alcohol causing bodily harm. Like Ms. Salandra, the offender in that case was in his early twenties, had no prior criminal record, and was of previously good character. Like Mr.

Meta, the victim in that case suffered serious physical, emotional and financial consequences. Of all the cases placed before me, Harrington seems to me to be most analogous to the circumstances of Ms. Salandra’s case. That said, Mr. Harrington was found guilty after a trial. In contrast, Ms. Salandra entered a guilty plea, took responsibility for her actions, and thereby spared the administration of justice the time and expense of a contested trial. More importantly, in my view, she has demonstrated genuine remorse for her actions. All of that very much counts in her favour.

Because of that, I think the sentence imposed upon her should be of significantly shorter duration than that imposed upon Mr. Harrington. Ms. Salandra, could you please stand up. For the reasons I have just explained, I am sentencing you to a term of six months imprisonment. In addition, at the completion of your sentence you will be placed on probation for a period of 12 months. You will be subject to the following conditions: • First, that you keep the peace and be of good behaviour; it means exactly what is sounds like, you must be good.

If you were to commit another offence during the time you are on probation, not only would you be guilty of that offence but you would also be guilty of breaching your probation order. • Second, you are to come to court if and when directed to do so either by the court or your probation officer.

I cannot imagine that we will ask you to come back to court, but if we do, you must come. • Third, you must notify the court or your probation officer, in advance of any change of name, address or occupation. • Fourth, you are to report to a probation officer within two working days of your release from custody, and thereafter if and when directed to do so by your probation officer. • Fifth, you are to take any counselling as recommended by your probation officer, with a specific recommendation that you continue to see your psychotherapist, Abby Rozen. • Sixth, you are to sign any necessary releases to allow your probation officer to monitor your attendance for counselling, your progress during counselling, and your completion of same.

Those are the various terms for the probation order; do you understand the terms as I have explained them to you? MARIANNA SALANDRA: Yes, Your Honour. THE COURT: Okay. Will you abide by them? MARIANNA SALANDRA: Yes, Your Honour. THE COURT: All right. And I have to caution you that the failure to abide by any of the terms would be a separate serious criminal offence for which people go to jail; do you understand? You are nodding yes? MARIANNA SALANDRA: Yes. Sorry.

THE COURT: Now, I want to point out to you that in placing you on probation, my aim is to ensure that you continue to get the counselling that I think will assist you. I realize that you were rather depressed after you were charged, and that counselling helped you in that regard. I am worried for you, in terms of the impact that going to jail and how it will affect you over the next several months and how it will impact on your mental health, to be sure. And I hope that by requiring you to continue seeing Ms. Rozen, you will have the supports you may require as you emerge from jail and begin to rebuild your life.

Finally, pursuant to

section 259 of the Criminal Code , you will be prohibited from operating a motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of three years from today’s date.

Do you understand that order, ma’am? MARIANNA SALANDRA: Yes, Your Honour. THE COURT: I understand that you have not been driving since the offence, so another three years with no driving. It is a separate freestanding court order. If you were to breach the terms of that order, it is an offence, people go to jail for that offence. Do you understand? MARIANNA SALANDRA: Yes, Your Honour. THE COURT: Will you abide by it? MARIANNA SALANDRA: Yes, Your Honour. THE COURT: Okay. Now, Mr. Sederoff, how much time is she going to require to pay the victim fine surcharge, which.... MR. SEDEROFF: It was a $100.

THE COURT: I believe it is a $100. Crown proceeded summarily, did they not? MR. SEDEROFF: Why don’t we.... MR. LEMKE: By indictment. MR. SEDEROFF: Why don’t we say 90 days? THE COURT: Oh, it’s $200. MR. SEDEROFF: We say 90 days, please. THE COURT: Okay. You have 90 days to pay the victim fine surcharge, which is $200, in the circumstances. Now, Ms. Salandra, I did want to speak to you a little bit more personally and less formally. I realize this is probably the most difficult day of your entire life. I know that. And I just want to tell you that I know that you are a good person, it is apparent to the court.

You come from a good family and I know that you made a terrible mistake. But given all of your strengths, in terms of your character, along with the love and support that you clearly have from your family, I know that you will get through these next several months and eventually put your life back together. I am confident of that. And I expect that you will, in time, make a valuable contribution to our society. You have a debt to pay to society, you are about to pay it. This offence, your mistake, will not define you.

You will move forward with your life, and put all of this behind you, and of that I am quite confident. I wish you the best going forward. All right ma’am? MARIANNA SALANDRA: Thank you. THE COURT: I’m just going to ask you to have a seat in the prisoner’s box; we’re going to call down for you to be taken into custody. MR. LEMKE: Your Honour, I do believe there are additional counts, those are to be marked withdrawn, please. THE COURT: The additional counts against Ms. Salandra will be marked withdrawn at the request of the Crown.