Her Majesty the Queen - v. -, 2013 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 161 Date: September 30, 2013 Information: 44840868 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alyssa Cook Appearing: Mr. R. Snyder For the Crown Mr. L. Browne For the Accused SENTENCING DECISION M. HINDS , J I. Introduction [ 1 ] Alyssa Cook entered a guilty plea to a charge that on November 16, 2012 she did have the care, charge or control of a vehicle that was involved in an accident with another person and, with the intent to escape civil or criminal liability did fail to stop to help an injured person contrary to section 252(1) (

a) of the Criminal Code . [ 2 ] The only issue concerns the appropriate sentence for Ms. Cook.

[ 3 ] For the reasons which follow I sentence to a 90 day term of imprisonment to be served intermittently. Ms. Cook is also placed on probation for a period of 18 months. In addition, she shall be prohibited from driving for a period of 2 years. The driving prohibition shall run concurrently with her sentence. Lastly, Ms. Cook is ordered to provide samples of her DNA to the police within the next two days. II. Facts [ 4 ] Alyssa Cook is 23 years old. She was 22 years of age at the time of the offence. During the evening of November 15, 2012 and the early morning hours of November 16, 2012, Ms.

Cook was out and about in the City of Regina visiting friends and drinking alcohol. [ 5 ] Ms. Cook drove her 2010 Jeep Liberty motor vehicle to one of her friend’s homes around 9:00 p.m. on November 15, 2012. Ms. Cook and her friend then went to Osler Street to visit two of Ms. Cook’s other friends. While at the Osler Street residence, Ms. Cook consumed two shots of vodka. [ 6 ] Around 11:00 p.m., Ms. Cook and her friends took a taxi from the Osler Street residence to O’Hanlon’s Irish Pub on Scarth Street. During her time at O’Hanlon’s Ms.

Cook consumed two “double rye and cokes”. [ 7 ] At approximately 1:30 a.m. on November 16 th , Ms. Cook took a taxi back to her friend’s house on Osler Street to pick up her vehicle. Ms. Cook proceeded to drive her 2010 Jeep Liberty. Initially, she dropped off one friend at that friend’s home and then proceeded to drive to her own home. Her route home had her drive south on Lacon Street. [ 8 ] Brandin Cannon is 18 years old. Regrettably, young Mr. Cannon consumed too much alcohol during the evening of November 15 th and/or the early morning hours of November 16, 2012.

Subsequent samples of blood taken at the Regina General Hospital showed that Mr. Cannon’s blood alcohol level was four times the legal limit. It appears that as a result of his over consumption of alcohol Mr. Cannon passed out on the travelled portion of the roadway in the 2500 block of Lacon Street. [ 9 ] As Ms. Cook was driving southbound on Lacon Street, she was “fiddling with her I-pod” when she suddenly “ran over something”. That something was Mr. Cannon. Ms. Cook stopped her vehicle, opened her door, and looked to see what she had run over. After looking back, Ms.

Cook realized that she had run over a person and that this person was in need of medical attention. [ 10 ] Ms. Cook did not exit her vehicle to come to the aid of Mr. Cannon, nor did she notify police or emergency medical services of the accident and the fact that Mr. Cannon was injured and needed help. Instead, Ms. Cook fled the scene of the accident and went to her nearby home. During a subsequent police interview Ms. Cook stated that her rationale for leaving was that she “did not want to be in legal trouble for drinking and driving”. [ 11 ] Mr. Cannon lay injured and unattended on Lacon Street.

At approximately 3:30 a.m. on November 16, 2012, Mr. Cannon was found by a local paperboy lying in the middle of the 2500 block of Lacon Street. Upon observing that Mr. Cannon was seriously injured, the paperboy notified the police. [ 12 ] An emergency dispatch team arrived at the scene at approximately 3:40 a.m. The officers at the scene noted that Mr. Cannon’s body was difficult to see as the street was poorly lit and Mr. Cannon was wearing dark clothing. [ 13 ] The officers observed that Mr. Cannon was lying face down in a pool of blood and was unresponsive to any attempts to communicate with him. Mr.

Cannon was also found to be cold to the touch suggesting that he had been lying on the road for some time.

[ 14 ] Medical reports later confirmed that Mr. Cannon had a large laceration to his lower right leg and a smaller laceration on his left leg. A large piece of skin and some muscle was missing from the calf area of his right leg. As well, Mr. Cannon had several open pelvic fractures, suffered a small rupture in his abdomen, and was frostbitten. As a result of these injuries, Mr. Cannon was taken to the Regina General Hospital. Mr. Cannon was in an unstable condition when he arrived at the hospital. [ 15 ] Police officers at the scene of the accident found a number of pieces from the lower

section of a motor vehicle. Moreover, officers observed tire tracks of a vehicle going southbound on Lacon Street. The officers determined by observing the track marks on the road that a vehicle had initially slid to a stop before accelerating and continuing southbound on Lacon Street. Based on this evidence, the officers believed that a motor vehicle had run over Mr. Cannon. As Ms.

Cook did not remain at the scene of the accident or report the accident, several members of the Regina Police Service subsequently carried out a very thorough and professional investigation. [ 16 ] The police investigation centred on the parts of the vehicle left behind at the scene of the accident. After seeking the advice of vehicle parts specialists, the officers were able to determine that the parts of the vehicle found at the scene were from a 2008-2011 Dodge Nitro or Jeep Liberty. [ 17 ] Police conducted a search for all 2008-2011 Dodge Nitro and Jeep Liberty vehicles in Regina.

The search brought up a 20 page list of vehicles matching this description. With this list, the officers proceeded to visit the homes of owners of these vehicles. [ 18 ] According to the police search, it was determined that Ms. Cook was the owner of a 2010 Jeep Liberty. The investigating officers visited Ms. Cook’s home six days after the accident on November 22, 2013. [ 19 ] After informing Ms. Cook of the reason for their investigation, Ms. Cook permitted the officers to inspect her vehicle. Upon inspecting Ms.

Cook’s vehicle, the officers determined that the vehicle was missing the same parts as found at the scene of the accident. Based on this information, the officers believed that Ms. Cook’s vehicle was involved in the accident and began questioning her. [ 20 ] In response to questions by the officers, Ms. Cook stated that she was the only person who drove her vehicle. Initially, Ms. Cook stated that she was unaware of the reasons for the damage to her vehicle. [ 21 ] Based on the evidence gathered from Ms. Cook, the officers arrested Ms.

Cook and brought her back to the police station for further questioning. [ 22 ] During her first interview with police at the police station, Ms. Cook initially denied having driven on Lacon Street on November 16 th . However, she eventually admitted to having driven on Lacon Street on November 16 th . She then stated that at the approximate time of the accident she remembered having hit a piece of ice. Some time later in the interview, however, she reverted back to her original position. She later attributed her lack of memory concerning the accident to alcohol consumption. After this interview, Ms.

Cook was lodged in police cells. [ 23 ] During this time, the Regina Police Service had obtained a search warrant and seized Ms. Cook’s vehicle. Upon inspecting the vehicle, the police forensic unit found pieces of human skin lodged in the vehicle. [ 24 ] After the police search of Ms. Cook’s vehicle, a second officer came to interview Ms. Cook. The officer informed Ms. Cook of the human skin that was lodged in her vehicle. Ms. Cook then voluntarily agreed to speak to the officer. [ 25 ] During the second interview with police at the police station, Ms.

Cook provided a much more thorough recollection of the evening prior to, and early morning of the accident as set out in paragraphs 5 to 10 above.

Victim Impact Statements [ 26 ] Mr. Cannon and Mr. Cannon’s mother each provided the Court with Victim Impact Statements. The combination of these statements provides the Court with the following insights as to how Mr. Cannon and his family have been affected by the accident. [ 27 ] Mr. Cannon was 18 years old at the time of the accident. He had just entered his first year of study at the University of Regina and subsequently dropped out of his first year of university to focus on recovering from his injuries. [ 28 ] After the accident, further surgeries were required to repair Mr. Cannon’s abdomen and pelvis.

As a result of both these surgeries and the initial surgery on the day of the accident, Mr. Cannon has pins in his jaw and pelvis which will be with him for the rest of his life. [ 29 ] As of January 16, 2013, Mr. Cannon was still unable to leave his home without assistance. He had difficulty walking due to braces on his hips and legs and was not able to put full weight on his legs. He also still had a catheter in his body at this time due to his abdominal injury. [ 30 ] Given the extent of the injuries, Mr. Cannon was not able to work or make any money during the summer of 2013.

In particular, he has not been able to work on his father’s farm, an activity which Mr. Cannon takes pleasure in. It is not known whether he will ever be able to perform farm labour or play football in the future. [ 31 ] Mr. Cannon’s mother stayed home for 3 months to look after Mr. Cannon after the accident. Ms. Cannon also expressed how difficult it was on her knowing that her son was injured and left unattended when he required immediate medical attention. Pre-Sentence Report – Ms. Cook [ 32 ] Ms. Cook is a 23 year old resident of Regina. She does not have a criminal record. She grew up in a good home.

Her parents have primarily resided in Thailand since Ms. Cook graduated from high school. She currently resides with her aging and sick grandmother of whom she is the primary caregiver. Ms. Cook has been in charge of attending to her grandmother’s various health care needs for the past couple of years. The compassion she exhibits towards her grandmother is very much at odds with the offence before the Court. [ 33 ] Ms. Cook has a grade twelve education and two years of undergraduate studies at the University of Regina. She stopped attending university in 2010 so as to look after her grandmother.

She plans on staying in Regina to pursue future studies so as to look after her grandmother. [ 34 ] Ms. Cook states that she is not a heavy drinker, never having experienced a “blackout” or having engaged in “binge drinking”. Ms. Cook also states that she has not consumed any alcohol since the day this Court placed an abstinence condition on her. She has not had any notable difficulties with abstaining from drug or alcohol consumption. Ms. Cook has also complied with all other probation conditions imposed upon her. [ 35 ] Ms. Cook has expressed empathy for the victim and his family.

She expresses a desire to take full responsibility for her actions. Ms. Cook states that she panicked and chose to flee rather than contact the police or emergency services. She also states that she feels “horrible” for her actions and frequently reflects on how she should have acted both leading up to and after the accident. [ 36 ] Ms. Cook’s grandmother stated that Ms. Cook is of good character and that her actions pertaining to the accident were “out of character”.

[ 37 ] Ms. Cook is currently employed at a clothing retail store in Regina. She has held this position since February of 2013 and has recently been promoted to store manager. [ 38 ] The Pre-Sentence Report has reported that Ms. Cook has been assessed as being a low risk to re-offend. III. Sentencing Position of the Parties [ 39 ] The Crown submits that a 4 month sentence of incarceration, combined with a 2 year driving prohibition, and a DNA order is an appropriate sentence in the circumstances. [ 40 ] Counsel for Ms.

Cook submits that a suspended sentence of 24 months with or without electronic monitoring combined with an 18 month driving prohibition is appropriate in the circumstances. In the alternative, counsel for Ms. Cook submits that an intermittent sentence would be appropriate. During submissions, counsel also requested that a Conditional Sentence Order be imposed should I decide that a sentence of imprisonment was required. IV. Law [ 41 ] Sections 718 to 718.2 of the Criminal Code guide the Court in determining the appropriate sentence for an offender. [ 42 ]

Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions with one or more of the objectives set out in that section. These objectives include: (

a) Denouncing unlawful conduct; (

b) Deterring the offender and other persons from committing offences; (

c) Separating offenders from society if necessary; (

d) Rehabilitating offenders; (

e) Providing reparations for harm done to victims or the community; and (

f) Promoting a sense of responsibility in offenders. The weight to be placed on each of the objectives listed in

section 718 is determined by the circumstances of the offence and the offender. [ 43 ] The fundamental principle of sentencing set out in

section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 44 ]

Section 718.2 of the Criminal Code lists a number of other secondary sentencing principles a Court must take into consideration when fashioning a sentence. These factors include consideration of aggravating and mitigating circumstances, as well as the principles of parity, totality, and restraint. A.

Section 718 and 718.2

[45] Ms. Cook’s admission of guilt along with her youth, lack of a criminal record, positive Pre-Sentence Report and sincerefeelings of remorse and other personal circumstances are all factors to be taken into consideration on sentencing. [46] The offence itself and the circumstances surrounding it must also be closely examined. Numerous courts through outCanada have consistently emphasized the serious nature of the offence of failing to remain at the scene of an accident and the significantconsideration that must be given to the sentencing principles of deterrence and denunciation. [47] In R. v.

Ramdass, [1982] O.J. No. 177 at para. 6, Justice Zuber of the Ontario Court of Appeal held that general deterrence isthe paramount principle when sentencing an individual for the offence of failing to remain at the scene of an accident. At paragraph 6Justice Zuber quotes with approval the following passage from R. v. Roussy, [1977] O.J. No. 1208, an unreported decision of the OntarioCourt of Appeal: [I]n a crime of this type the deterrent quality of the sentence must be given paramount consideration and here I am using the term'deterrent' in its widest sense. The sentence by emphasizing community disapproval of

an act and branding it as reprehensible has amoral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned toregard conduct as reprehensible will not likely commit such

an act. [48] In R. v. Gummer, (ON CA), [1983] O.J. No. 181, Justice Martin of the Ontario Court of Appeal expandedupon this point. Justice Martin stated at para. 14 of Gummer that “failing to remain at the scene of an accident to offer assistance to aninjured person was a grave failure to comport with the standards of humanity and decency” and continued, at para. 16:

(16) In our view, the Court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in anaccident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by theCriminal Code. [49] Other jurisdictions have also emphasized general deterrence when sentencing offenders for failure to remain at the scene of anaccident: see R. v. Plante, 2005 BCSC 1148 at para. 44; R. v. Brousseau, 2006 NLTD 104 at para. 20; and R. v. Hindes, 2000 ABCA 197at para. 43. [50] I am in full agreement with the statements in these cases.

Given the lack of humanity and decency in Ms. Cook’s actions in leaving the scene of the accident, I am of the view that the principles of general deterrence as well asdenunciation must be given the most weight in determining her sentence. It is important that society be sent the message that failing toremain at the scene of an accident where someone is injured is morally reprehensible. B. Aggravating and Mitigating Factors [51]

Section 718.2(

a) of the Criminal Code states that the sentence imposed on an offender must take into account any aggravatingand mitigating circumstances. I consider the following to be aggravating circumstances in this case: (

a) Ms. Cook left the victim, Mr. Cannon in an injured state on a roadway between 1:30 and 3:40 a.m. in the middle of November inRegina. (

b) She did not report the accident to the police or to anyone who could have offered timely assistance to Mr. Cannon. (

c) At no time in the ensuing six days did she report the accident to authorities, thereby requiring the police to undertake a comprehensiveinvestigation. (

d) She initially lied to the police about her involvement in the accident. (

e) She had been drinking alcohol prior to the time of the accident and her rationale for leaving the scene of the accident was that she

“did not want to be in legal trouble for drinking and driving”. [ 52 ] I consider the following to be mitigating circumstances: (

a) She has entered a guilty plea, to the charge; (

b) Her relative young age; (

c) She does not have a criminal record; (

d) She demonstrated remorse as well as a desire to accept responsibility for her actions; (

e) She is assessed as a low risk to re-offend; and (

f) She is the primary caregiver to her grandmother. [ 53 ] Counsel for Ms. Cook argued that as there was some level of cooperation I should also consider this to be a mitigating factor. I hesitate to give much weight to this factor. Ms. Cook did not admit to the offence when her vehicle was found damaged in the same spot as the vehicle pieces left at the scene. Instead, she admitted to the offence only after she learned that human skin was found lodged in her vehicle. At this point, it was highly likely that she would be found guilty of the offence.

This is very different from an offender who admits their criminal conduct upon first being questioned. As such, her minimal cooperation with the police, although a mitigating factor, is of less value in the circumstances. C. Parity [ 54 ] The parity principle requires that sentences be similar to sentences imposed on similar offenders under similar circumstances. In their submissions, counsel submitted a number of Saskatchewan cases concerning impaired driving causing bodily harm.

The reason for so doing was due to there being very few Saskatchewan cases concerning charges for failure to remain at the scene of an accident. Although I find counsel’s submissions useful and review them below, it is prudent under such circumstances to also canvass relevant decisions of other Canadian jurisdictions. I am mindful that although the facts reveal Ms. Cook drank some alcohol prior to the accident, she was not charged with impaired driving. (

i) Saskatchewan Cases Involving Impaired Causing Bodily Harm [ 55 ] In R. v. Weisgerber , 2009 SKPC 107 , Mr. Weisgerber pleaded guilty to a charge of impaired driving causing bodily harm. He had rear-ended a vehicle and then fled the scene, only to be stopped a short time later by the police. Mr. Weisgerber’s blood alcohol was over five times the legal limit. The victim of the accident was unconscious and later suffered from neck pains as a result of the accident. Mr. Weisgerber was a 67 year old Aboriginal man. He had a minor record which included 3 impaired driving charges.

He was given a $2,000.00 fine in addition to 3 years of probation . [ 56 ] In R. v. Riddell , 2011 SKQB 378 , Mr. Riddell pleaded guilty to impaired driving causing bodily harm. Mr. Riddell ran into the open door of the victim’s vehicle that was parked on the wrong side of the road. The accident caused the door to close on the victim’s leg causing a significant break to his leg. Mr. Riddell fled the scene of the accident and was soon after found at home. He registered a blood alcohol concentration that was more than double the legal limit. The sentencing judge described Mr.

Riddell as “mentally fragile and physically challenged”, severely depressed, and at a significantly increased risk of suicide if incarcerated. He also had no criminal record, expressed remorse, and was 18 years of age at the time of the incident. Mr. Riddell was given a fine of $2,500.00 and placed on probation for a 3 year period. [ 57 ] In R. v. Armstrong , 2012 SKQB 428 , Mr. Armstrong pleaded guilty to two counts of impaired driving causing bodily harm.

Mr. Armstrong was driving his vehicle at 130 kph in a 50 kph zone when he lost control of his vehicle and collided with a tree. The two passengers were seriously injured. At the time of the accident, Mr. Armstrong’s blood alcohol level was over twice the legal limit. Mr. Armstrong was 21 years of age with no prior record. He expressed remorse for his actions. Mr. Armstrong was sentenced to 4 months incarceration followed by 18 months of probation and a 2 year driving prohibition. [ 58 ] In R. v. Daly , 2013 SKPC 40 , Mr. Daly pleaded guilty to impaired driving causing bodily harm.

While driving, he had struck a pedestrian causing seriously bodily harm to the victim. He registered a blood alcohol concentration of 130 mg per 100 ml of blood. Mr. Daly was 46 years old, married, and had steady employment. He was cooperative with the police and was found to be of good character. He did not have a criminal record and expressed remorse for his actions. He was sentenced to six months imprisonment and given a 2 year driving prohibition. (ii) Saskatchewan Cases Involving Failure to Remain with Death Resulting [ 59 ] In R. v. Boyenko , 1994 SKCA (SentDig) 92, Mr.

Boyenko struck a pedestrian with his vehicle. The victim died immediately or shortly after the accident. The accused fled the scene and attended a local bar. He lied about the damage to his vehicle to a number of people, including the police. It was determined at trial that Mr. Boyenko knew that he had hit a person. He was sentenced to 80 days imprisonment , followed by 1 year of probation which included 150 hours of community service, as well as a 1 year driving prohibition. The Saskatchewan Court of Appeal upheld the sentence although the driving prohibition was increased by 1 year.

The Court noted the sentence imposed was “low based on the subsequent conduct of the accused attempting to avoid responsibility”. The sentence was not altered because at the time of appeal the sentence and the community service hours had been completed. [ 60 ] In R. v. Yuzicapi , 2011 SKCA 134 , Mr. Yuzicapi was convicted of impaired driving and pleaded guilty to failure to remain at the scene of an accident and obstructing justice. He was driving erratically when he hit a pedestrian. Upon fleeing the scene, Mr. Yuzicapi threatened to punish the passengers of his vehicle if they called the police.

The victim died later in hospital. The accused had a severe alcohol addiction and a minor record that included one prior conviction for drinking and driving. Mr. Yuzicapi was given a 4 year sentence for failing to remain at the scene of the accident, largely due to having threatened his passengers if they informed the police about the incident. A 6 month consecutive sentence was added for the remaining charges. (iii) Saskatchewan Cases Involving Failure to Remain with Bodily Harm Resulting [ 61 ] In R. v. Norberg , 1991 SKCA (SentDig) 70, Mr.

Norberg ran into the victim with his vehicle on his way home from a bar. He refused to stop, drove the passengers in his vehicle home, and asked the passengers to remain quiet about the incident. However, Mr. Norberg turned himself in to police the following day. The victim suffered a broken arm, some permanent injury to his shoulder, bruising, and a gash on his head as well as a concussion. Mr. Norberg was 32 years of age at the time of the incident. He assumed full financial responsibility for making restitution to the victim.

He had a somewhat dated record consisting of 2 convictions for impaired driving and one conviction for theft under $5,000.00. He was sentenced to 90 days imprisonment and received a 2 year driving prohibition. (iv) Failure to Remain with Bodily Harm Resulting: Other Jurisdictions [ 62 ] In R. v. Clements , 2002 PESCTD 7 , Mr. Clements had hit the victim’s motorcycle with his vehicle causing severe injury to the victim. Due to his many Highway Traffic Act convictions, Mr. Clements along with his 15 year old son fled the scene. Mr.

Clements was a 30-year-old, low-functioning illiterate who had custody of one of his five children. He had no criminal record. Mr. Clements received a suspended sentence, put on probation for two years , required to perform 100 hours of community service, and received a 1 year driving prohibition. [ 63 ] In R. v. Pijogge , 2013 NLTD(G) 7, Ms. Pijogge hit another vehicle and fled the scene of the accident. The collision caused serious injuries to the occupants of the vehicle including a broken hip, broken clavicle, broken arms and legs, and hearing loss. Ms. Pijogge was a 30 year old Aboriginal person.

She did not plead guilty but demonstrated remorse for her actions. She had no criminal record. She was a mother of five and at the time was still breast feeding her youngest child. She received a 6 month CSO and a 9 month driving prohibition.

[ 64 ] In R. v. Hussein , 2011 ONCJ 828 , Mr. Hussein rear-ended a vehicle while it was in motion, causing the vehicle to veer off the road and roll over several times. Mr. Hussein’s vehicle also went into the ditch. Mr. Hussein exited his vehicle and inquired as to whether the passenger in the victim’s vehicle was injured. Afterwards, he left the scene on foot. The victim received serious injuries including numerous cuts, bruises, and sprains. Mr. Hussein was 38 years old at the time of sentencing. He had a serious and lengthy criminal record.

However, he had made serious and substantial positive changes since the incident, and any “real jail time” would have hindered his ability to raise his children. Mr. Hussein was sentenced to a 6 month CSO , followed by a two year probation order, and a 1 year driving prohibition. [ 65 ] In R. v. Brousseau , 2006 NLTD 104 , Mr. Brousseau hit a pedestrian crossing the street. When confronted by police, he originally denied having driven on the road in question, but then admitted to driving on the road but stated that he was unaware that he had hit somebody.

Later he stated that he felt a “slight bump” but did not see what he hit in his mirror and assumed he had run off the edge of the asphalt. The elderly victim suffered serious injuries to his pelvic and groin area. Mr. Brousseau had a very minor and dated record. He was 68 years old at the time of the offence. Mr. Brousseau was sentenced to an 8 month CSO and given an 18 month driving prohibition. [ 66 ] In R. v. Peters , 2009 BCPC 96 , Mr. Peters was convicted of dangerous driving causing bodily harm and failing to stop at the scene of an accident. Mr.

Peters, a 24 year old Aboriginal man, drove his friend's vehicle without permission. He collided with a bicyclist and a bike trailer with two young children while driving at excessive speeds. Mr. Peters subsequently fled the scene. The victims were not seriously injured, but were psychologically traumatized. At the time of the collision, he had not slept for days due to drug and alcohol consumption over the prior couple days. He was remorseful and made sincere efforts to change his ways. A CSO of two years less one day was imposed followed by two years probation. [ 67 ] In R. v. Harris , [2008] O.J.

No. 1035 , Ms. Harris was convicted of failure to remain at the scene of an accident after hitting a pedestrian with her vehicle. The victim was injured but recovered from most of his injuries. Ms. Harris stated that her reason for not stopping was that she thought she had hit a large animal despite the fact that she was driving on a city street. She had a minimal and dated criminal record. She was sentenced to 60 days incarceration , 18 months probation, and a two year driving prohibition. [ 68 ] In R. v. Duncan , [1999] O.J. No. 5361 , Mr. Duncan collided with the victim.

As the victim was not wearing a seat belt, he was catapulted through the windshield. He suffered serious brain damage as a result. The accident, however, was held not to be Mr. Duncan’s fault. His only fault was having left the scene. Less than a day later, Mr. Duncan turned himself in and pleaded guilty to the offence. He was completely cooperative with the police. Based on a joint submission, Mr. Duncan was sentenced to 90 days imprisonment and was given a two year driving prohibition. [ 69 ] In R. v. Evans-Renaud , 2012 PECA 21 , Mr. Evans-Renaud hit a pedestrian while driving his vehicle.

He did not stop to see what he hit. The victim suffered numerous cuts and bruises, but was released from hospital the next day. Mr. Evans-Renaud was 20 years old with no prior criminal record. He showed remorse for his actions. He was also employed and enrolled in university at the time of sentencing. He was sentenced to 4 months imprisonment . [ 70 ] In R. v. Eichler , 2012 ONCJ 480 , Mr. Eichler, a 20 year old man at the time of the accident, hit a pedestrian crossing the street. Mr. Eichler slowed the vehicle but then sped away causing the victim’s body to slide off the vehicle and hit the pavement.

The accident caused serious injuries to the victim which required numerous surgeries. Approximately 5 hours after the accident, Mr. Eichler was arrested at his home. Although Mr. Eichler admitted to consuming two beers on the evening in question, there was no evidence suggesting that he was impaired at the time of the incident. He pleaded guilty and had no criminal record. He also expressed remorse and was seen as a contributing member of society. The Court sentenced Mr. Eichler to 6 months imprisonment , followed by 12 months probation and a 2 year driving prohibition. [ 71 ] In R. v.

Hindes , 2000 ABCA 197 , Ms. Hindes ran a red light, collided with another vehicle, and subsequently left the scene of the accident. Witnesses to the accident followed her and told her to return to the scene of the accident as someone had been hurt but she did not respond. Not long before the accident she had consumed some beer despite being on prescription medication. One of the occupants of the victim’s vehicle required brain and abdominal surgery as a result of the accident and his cognitive functions were severely impaired. Ms. Hindes was 35 years of age at the time of sentencing.

She suffered from numerous psychological disorders relating to depression. She was remorseful. The Court imposed a term of imprisonment of 6 months for the offence of failing to

remain at the scene of the accident to be followed by a consecutive term of 12 months to be served conditionally for the offence ofdangerous driving causing bodily harm. [72] In R. v. Ledoux, [1997] A.J. No. 685, Mr. Ledoux was convicted of two counts of dangerous driving causing bodily harm, onecount of driving while disqualified, and one count of leaving the scene of an accident. Mr. Ledoux was speeding when he ran a stop signand crashed into the victim’s vehicle. After the incident, he fled on foot.

The victim suffered serious injuries, including a collapsedlung, fractured ribs and teeth, as well as slight brain damage. Mr. Ledoux had a serious record which included driving related offences. It was also determined that he had long term addictions issues. He showed little respect for the criminal justice system or any signs ofremorse for his actions. In addition to receiving an 8 month sentence for dangerous driving and a 3 month consecutive sentence fordriving while disqualified, Mr. Ledoux was sentenced to 6 months consecutive for failing to remain at the scene. [73] In R. v. Plante, 2005 BCSC 1148, Mr.

Plante was charged with failure to remain at the scene, dangerous driving, and theft ofa motor vehicle. While driving the stolen vehicle Mr. Plante ran a red light and collided with another vehicle. The collision seriouslyinjured the occupants of the vehicle. Mr. Plante had a serious criminal record. He was remorseful for his actions. The Court imposed a12 month sentence to be served consecutively for failing to remain at the scene of the accident. However, the sentencing judgeexpressly shortened the sentence due to consideration of the totality principle. [74] In R. v. Folkes, 2010 ONCJ 326, Mr.

Folkes was driving while prohibited when he hit a pedestrian with his vehicle. Thevictim suffered serious injuries including a broken vertebrae, jaw, and skull. Mr. Folkes originally attempted to mislead the police bytelling them that someone else had stolen his car. Mr. Folkes had a lengthy criminal record. He demonstrated a general lack of remorseand did not appreciate the seriousness of his conduct. Mr. Folkes was sentenced to 13 months and 12 days in jail, after receiving creditfor 48 days served. He was also given an 18 month driving prohibition. D. Restraint [75]

Section 718.2(

d) requires that an offender not be deprived of liberty if less restrictive sanctions are appropriate. Section718.2(

e) requires that I consider all sanctions other than imprisonment that are reasonable in the circumstances. In accordance with theseprinciples, counsel for the defendant suggested that a suspended or conditional sentence was appropriate in the circumstances. I willconsider each in turn. (

i) Is a suspended sentence appropriate in the circumstances? [76] In R. v. Daly, supra, at para. 40, citing R. v. Rawn, 2012 ONCA 487 and R. v. P.(B.W.), 2006 SCC 27, Judge Kalmakoff statesthat “[a] sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence ispunishment”. [77] Judge Kalmakoff goes on to state in Daly, supra, at para. 41, citing Rawn, supra; R. v. Dunn, 2011 NBCA 19; and R. v. Taylor(1997), (SK CA), 163 Sask.

R. 29 (Sask CA), that “[a] suspended sentence is generally inadequate when the sentencecalls for a focus on deterrence and denunciation”. The above case law demonstrates that a suspended sentence in the context of a chargeof failure to remain at the scene of an accident where bodily harm ensues or impaired driving causing bodily harm is the exception ratherthan the rule.

Only when rehabilitation was a serious issue, such as in Riddell, supra, the offender was mentally disabled, as in Clements,supra, or the injuries were very minor, such as in Weisgerber, supra, have suspended sentences (or a fine and probation in the case ofWeisgerber) been deemed appropriate. As is evident from the facts, Ms. Cook is not faced with serious rehabilitative concerns thatwould be worsened by a term of imprisonment. Moreover, the injuries to Mr.

Cannon were certainly serious. [78] Based on the circumstances of the offence, I have concluded that general deterrence and denunciation are the sentencingprinciples that must be emphasized. Although I agree with Justice Gunn’s conclusion in Riddell, supra, at para. 45 that generaldeterrence and denunciation can be met by using non-custodial sentences, I do not think that a non-custodial sentence will satisfy theseprinciples in this case. As such, I am of the view that a suspended sentence would be an unfit sentence for Ms. Cook. (ii) Is a Conditional Sentence Order appropriate in the circumstances?

[ 79 ] Defence counsel also suggested that a Conditional Sentence Order (CSO) would be appropriate in the circumstances. The Crown takes the position that a CSO is not available or, in the alternative, not appropriate in the circumstances. [ 80 ] It is noteworthy that recent amendments to

section 742.1 of the Criminal Code which would preclude consideration of a CSO —in particular what is now subsection 742.1(e)(i)—are not applicable in this case. The current version of

section 742.1 only became effective on November 20, 2012. The offence in this case happened on November 16, 2012. As such, the previous version of

section 742.1 is applicable. [ 81 ] The previous version of

section 742.1 of the Criminal Code provided a number of preconditions that were required to be met before a CSO could be ordered. On the facts of this case, only two of these prerequisites need be discussed. The first prerequisite is that a conditional sentence is not available in cases where the offender is convicted of a "serious personal injury offence" as that term is defined in

section 752. That

section defines a “serious personal injury offence” as: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more. [ 82 ] I have reviewed the following cases concerning failure to remain at the scene of an accident where bodily harm ensued and a CSO was considered: R. v. Goulet , 2011 ABCA 230 ; R. v. Eichler , 2012 ONCJ 480 ; Hussein , supra ; Pijogge , supra ; Brousseau , supra ; and Peters , supra .

I have also reviewed the following cases concerning failure to remain at the scene of an accident where death ensued and a CSO was considered: R. v. Foley , 2010 NSSC 449 ; R. v. Ali , 2010 ABPC 393 ; R. v. Schmitt , 2011 ONCJ 546 ; R. v. Dhaliwal , 2012 MBQB 155 ; R. v. Alves , 2012 BCPC 403 ; and R. v. Peragine , 2012 BCPC 355 . [ 83 ] Where death ensued, the offence of failure to remain at the scene of an accident has consistently been categorized as a serious personal injury offence.

Where bodily harm ensues, the circumstances dictate whether the conduct amounts to a serious personal injury offence: see Goulet , supra , at para. 6 and Foley , supra , at paras. 31-33 . [ 84 ] Of these decisions, I am of the view that Eichler , supra , is the case that most closely mirrors the circumstances of Ms. Cook. In that case, Mr. Eichler struck a pedestrian crossing the street. Mr. Eichler slowed the vehicle but then sped away causing the victim’s body to slide off the vehicle and hit the pavement. The accident caused serious injuries to the victim which required numerous surgeries.

The Court concluded that the conduct of Mr. Eichler amounted to a serious personal injury offence. [ 85 ] The cases of Pijogge , supra ; Brousseau , supra ; Goulet , supra ; and Peters , supra , all involved exceptional circumstances. In Pijogge , at para. 43, Judge Stack expressly refused to consider whether Ms. Pijogge’s conduct amounted to a serious personal injury offence as counsel did not mention it in their submissions. In Peters , the harm done to the victims was not serious. The Brousseau decision was decided before 2007 when the amendment to

section 742.1 prohibiting a CSO if an offence was a serious personal injury offence came into force. Finally, Goulet held that the offence was not a serious personal injury offence due to other civilians immediately coming to the aid of the victim. Even if immediate civilian help was a relevant factor, this did not happen in the instant case. [ 86 ] The last decision listed, Hussein , supra , at para. 47 held that “[t]he offence of fail to stop at the scene of an accident is not a ‘serious personal injury’ offence as defined in

section 752”. To categorically exclude this offence from being a serious personal injury offence, however, flies in the face of every other authority cited. As no rationale was provided for so doing, I would respectfully not follow Hussein .

[ 87 ] As the level of harm in this case is similar to that in Eichler , I find that a CSO is precluded based on Ms. Cook’s conduct amounting to a serious personal injury offence. As in Eichler , I find her conduct was likely to endanger the life or safety of the victim. Leaving a seriously injured Mr. Cannon in the middle of a road, in the early morning in November in Regina, Saskatchewan, certainly endangered his life or safety. Hence, I am of the view Ms.

Cook’s conduct meets the definition of serious personal injury offence. [ 88 ] The second applicable prerequisite requires that a CSO be consistent with the fundamental purposes and principles of sentencing as defined in sections 718 through 718.2 of the Criminal Code . If I am incorrect in holding that Ms. Cook committed a serious personal injury offence, I would otherwise have held that the principles of denunciation and general deterrence would not be met if a CSO was ordered. As discussed above, the lack of humanity in the conduct of Ms. Cook is chilling. Ms.

Cook’s decision to leave the scene was a complete and utter failure to comport with standards of human decency. General deterrence and denunciation are certainly the paramount principles to consider in her sentence. These principles would not be served by imposing a CSO in these circumstances. E. Range of Sentences [ 89 ] Given the above overview of case law in Saskatchewan and other jurisdictions, I conclude that there is a broad range of sentences for failing to remain at the scene of an accident where bodily harm occurs.

Section 252(1.2) of the Criminal Code states that the maximum sentence for this crime is 10 years imprisonment. At the low end, the case law above demonstrates that under exceptional circumstances, a suspended sentence may be appropriate. However, a period of incarceration ranging from 2-15 months will generally be required to denounce and deter others from fleeing the scene of an accident where there is knowledge that bodily harm has occurred. Sentences will obviously vary based on the circumstances of each case. F.

Balancing the Sentencing Principles [ 90 ] The above analysis assists in determining the appropriate sentence for Ms. Cook. As I have determined that a term of imprisonment is required, I must first determine the length of sentence to be imposed. As counsel disagreed as to the length of any driving prohibition to be imposed, as well as whether a DNA order is warranted, I must further consider the appropriateness of these orders. Each will be considered in turn. (

i) Duration of Sentence [ 91 ] Given the above analysis, the Norberg decision of the Saskatchewan Court of Appeal is most useful. The major distinguishing factor in that case from the case at hand is that Mr. Norberg initially asked that the other parties remain silent about the incident. However, Mr. Norberg turned himself in to police the next day. Ms. Cook was alone at the time of the accident. She did not turn herself in to the police, instead requiring the police to perform a comprehensive investigation. Even after the police had reasonable grounds to believe she had ran over Mr. Cannon, she did not confess.

Only when she was almost certain to be found guilty of the offence did she confess. In my view, this aggravating circumstance in Ms. Cook’s case is more serious than that in Norberg . [ 92 ] Mr. Norberg was, however, almost a decade older than Ms. Cook and had a number of driving and theft related convictions. All other factors between the two cases appear relatively neutral. It is relevant that Ms. Cook is the sole care provider for her grandmother, who will be in worse circumstances if not cared for by Ms. Cook. Balancing all these factors, I find that the sentence ordered in Norberg is also suitable for Ms.

Cook. I therefore impose a 90 day sentence of incarceration on Ms. Cook. This sentence will be served intermittently as permitted by

section 732 of the Criminal Code . In addition, Ms. Cook will be placed on probation for the period of 18 months on the following conditions: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(

d) report to a probation officer at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, in person by 2:00 p.m. October 1, 2013 and after that as told to do so by your probation officer. (

e) live at 2914 Rothwell Street, Regina, Saskatchewan and not change that residence without the prior written approval of your probation officer or the court. (

f) for the first 6 months of this order, stay inside your approved residence from 11:00 p.m. each night until 7:00 a.m. the next morning unless you have the prior written permission of your probation officer or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a probation officer or a designate or police officer who may be checking the residence and curfew conditions of this order. (

g) not to possess or consume alcohol of drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. (

h) participate in assessment(

s) and complete programming for personal counseling as told to do so by your probation officer. (

i) complete 100 hours of community service work by September 30, 2014, as told to do so by your probation officer. (

j) prepare a written apology to Brandin Cannon approved by your probation officer and deliver that apology as told to do so by your probation officer by October 30, 2013. (

k) not use alcohol or drugs that have not been prescribed for you for 24 hours before going to the Correctional Centre to serve your sentence. [ 93 ] In determining this to be an appropriate sentence, I was also guided by the following cases from other Canadian jurisdictions: Duncan , supra ; Evans-Renaud , supra ; Hindes , supra ; and Harris , supra . In each of these cases, short incarceral sentences were made under similar circumstances to those of Ms. Cook. [ 94 ] Although counsel for Ms.

Cook urged that a lower duration of sentence would be appropriate, the case law relied upon by counsel is readily distinguishable. Counsel first points to Boyenko , supra , in which the offender received an 80 day sentence for a charge of failure to remain at the scene of an accident. As the offender was intoxicated at the time of the accident, and the victim later died, the gravity of the conduct is greater than in the instant case. However, I find the obiter comments of the Saskatchewan Court of Appeal to be persuasive.

The Court stated that the 80 day sentence was at the “low-end” and was not altered due to the sentence already having been served by the time the appeal was heard. Thus, it appears that the sentence in Boyenko ought to have been higher. [ 95 ] In Weisgerber , supra , the offender was given a low-end sentence. However, the harm to the victim in that case was much less serious than the harm done to Mr. Cannon. Moreover, Judge Harradence focused on rehabilitative principles in passing sentence.

As I have stated at length above, the circumstances of this case require there to be an emphasis on general deterrence and denunciation. [ 96 ] In Riddell , supra , it seems that Justice Gunn’s decision to not incarcerate Mr. Riddell was strongly influenced by the significant increase in the chance of him committing suicide if incarcerated.

This fact, combined with the fact that a failure to remain at the scene of an accident charge was not at issue in Riddell , distinguishes the case. [ 97 ] The remaining cases concern impaired driving causing bodily harm where the offender did not leave the scene of the accident. I am reluctant to follow any of these cases as they involve a different offence and different circumstances. [ 98 ] Finally, an additional argument by counsel warrants comment. Counsel for Ms. Cook urged me to consider additional facts such as the intoxication of Mr.

Cannon, his being in a bar while under age, and the fact that he was lying on the road when he was run over. However, the offence in question concerns Ms. Cook’s conduct of failing to remain at the scene of an accident. The issue does not concern Mr. Cannon’s actions. I therefore fully agree with counsel for the Crown that the conduct of Mr. Cannon is of no moment in the context of a charge of failure to remain at the scene of an accident. (ii) Driving Prohibition [ 99 ] Counsel disagreed as to whether a driving prohibition was required in the event I imposed a sentence of imprisonment.

Section 259(2) grants me discretion as to whether to order a driving prohibition. In my view, the principles of denunciation and general deterrence require that Ms. Cook be prohibited from driving for a considerable period of time. Further, the principle of parity requires that similar offenders receive similar sentences. Again considering the Norberg decision, I agree with the Crown that a driving prohibition of 2 years is appropriate in the circumstances. (iii) DNA Order [ 100 ] Finally, the Crown requested that I require Ms. Cook to provide samples of her DNA. Failing to remain at the scene of an accident is a secondary designated offence as defined under

section 487.04 of the Criminal Code . As such,

section 487.051(3) grants me discretion as to whether to order a DNA sample. That

section requires that I “consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person”. [ 101 ] I consider this an appropriate case, given the serious nature of this offence, to impose a forensic DNA order under s. 487.051 the Criminal Code , and I do so in the standard terms.

You will, therefore, attend at the Regina City Police Station within the next two days to provide such samples as are reasonably required for that purpose. V. Conclusion [ 102 ] In

summary, I sentence Ms. Cook to a 90 day term of imprisonment to be served intermittently. Ms. Cook is also placed on probation for a period of 18 months. In addition, she shall be prohibited from driving for a period of 2 years. The driving prohibition shall run concurrently with her sentence. Lastly, Ms. Cook is ordered to provide samples of her DNA to the police within the next two days. [ 103 ] The matter before the Court has been difficult and I would like to thank counsel for their very thorough and thoughtful submissions which have been of assistance to the Court. M. Hinds, J