R. v. Brown, 2011 ONCJ 462

COURT FILE NO.: 998 11 00919 DATE: 2011-09-06 Citation: R. v. Brown , 2011 ONCJ 462 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) Mr. K. Saliwonchyk, for the Crown ) ) ) - and - ) ) ) Suvaugh Brown ) ) ) Mr. J. Wilton, for the Defendant ) ) ) ) ) HEARD: September 6, 2011 De Filippis, J [ 1 ] The Defendant was charged with a number of offences arising from his operation of a motor vehicle. The Crown proceeded by Indictment and the Defendant elected trial in the Ontario Court of Justice.

On the day set for trial he pleaded guilty to flight from police and drive while suspended. These are my reasons for sentence. [ 2 ] On 11 May 2011 at 1:45 AM, Cst. Maddan, from the Ontario Provincial Police, set up radar at Whites Rd and Highway 401, in the City of Pickering. The Defendant drove eastbound on Highway 401 at 162 km/hr. The officer activated his lights and pursued the vehicle. The Defendant slowed down and made his way towards the shoulder but, as the officer did the same, he abruptly accelerated to 178 km/hr.

The Defendant exited at Brock Rd in the Town of Whitby, proceeded southbound into an industrial area at an estimated speed of 130-150 km/hr, and ignored two red lights. By this time the Durham Regional Police Service helicopter was in the area as well as the K-9 Unit and Cst. Maddan abandoned the pursuit. The Defendant struck a curb and disabled his vehicle. He was found hiding behind a nearby tree. The Defendant’s license to drive had been suspended in 2009 for “remedial reasons”. [ 3 ] The Defendant is 18 years old. Since 2007 has been convicted of 16 offences, including dangerous driving and flight from

police. He was placed on probation for those offences. He has several convictions for failure to comply with court orders, assault, and drug offences. The offences before me are his first adult convictions. He has been in custody, awaiting trial, for almost four months. [ 4 ] At the time of these offences he resided with his mother and two younger siblings in Toronto. I have been informed that he has a strained relationship with his father, who lives in Jamaica, and that his mother has found it difficult to cope with the Defendant and her other children. The Defendant has a one year old child.

I was told the Defendant has a good relationship with that child. I was not told anything about the Defendant’s education or employment history. [ 5 ] The Crown suggests that a sentence of 12 months followed by probation and the maximum driving prohibition of three years. The Defendant submits that time served is appropriate with a short or no driving prohibition. Defence counsel fairly noted that sentences for these types of offences vary widely. That, no doubt, reflects the numerous ways in which the crimes can be committed. Counsel referred me to R v Chuang [2006] O.J.

No. 3248 in which Dawson, J held as follows: 32 The appellant received a six month conditional sentence to be served concurrently on each count. He was prohibited from driving for a period of two years. 33 The appellant submits that the trial judge did not balance the interests of the appellant and the community, over emphasized "blameworthiness" and failed to give proper weight to mitigating factors. 34 I note that the accused has a prior record for dangerous driving and failing to stop at the scene of an accident in 1992.

Although this record is dated, it is relevant because the appellant also has an extensive current record of bad driving under the Highway Traffic Act, R.S.O. 1990, c. H-8. The Crown sought a custodial sentence of three to four months. 35 The reasons of the experienced trial judge do not reveal any error of principle. The sentence imposed was well within the range of appropriate sentences for this form of dangerous misconduct.

Indeed I think the accused was fortunate in avoiding jail time, particularly because he was trying to outrun the police. 36 The sentence appeal is also dismissed. [ 6 ] The guidance offered by similar cases is helpful but few cases are identical and each one must be decided with respect to the unique circumstances of the offence and offender. In so doing, I must consider the fundamental purposes of all sentencing, as set out in the Criminal Code : 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.... [ 7 ] Using a motor vehicle to flee from police is an offence that can put the public at enormous risk of harm. That risk was present in this case; the Defendant drove at great speeds along a major highway and municipal street, ignored two red lights, and struck a curb. While focused on evading police, he could easily have struck another vehicle or person. [ 8 ] The Defendant has spent much of his teenage years engaged in criminal activity.

He has been continuously on probation for almost four years. During that time, he has had access to support programs, especially in the last year at the Roy McMurtry Youth Centre. In spite of this, and within one month of his last release from custody, he committed these crimes.

Accordingly, while general deterrence is always an important consideration in offences of this kind, specific deterrence is a paramount consideration with respect to this offender. [ 9 ] The Defendant is sentenced to five months in jail in addition to the four months presentence custody for the offence of flight from police and one month consecutive for the offence of driving while suspended. The total is six months in addition to the four

months presentence custody for an effective sentence of ten months. I do not believe probation will be worthwhile. Having regard to the prior related offences, there will be a three year driving prohibition. ___________________________ Signed: “Justice J. De Filippis” Released: 6 September 2011