R. v. O’Keefe, 2011 NLCA 41

Date: 20110615 Docket: 10/22 Citation: R. v. O’Keefe , 2011 NLCA 41 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : GERARD M. O’KEEFE APPELLANT AND HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., White and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, (General) 200906T0090 Appeal Heard: March 11, 2011 Judgment Rendered: June 15, 2011 Reasons for Judgment by Harrington, J.A. Concurred in by Green, C.J.N.L and White, J.A. Counsel for the Appellant: Glen W. Picco Counsel for the Respondent: Vikas Khaladkar Harrington, J.A.:

[ 1 ] The vehicle which the appellant was operating struck and seriously injured Deborah Hillier and her daughter Shae Lynn Piercey in Fortune, NL on January 31, 2008. The appellant was charged with two counts of criminal negligence in the operation of a motor vehicle causing bodily harm and two counts of dangerous driving causing bodily harm. [ 2 ] The Crown conceded at trial that two counts of criminal negligence could not be proven. The trial judge acquitted the appellant on these counts.

However, the appellant was convicted under s. 249(1) of the Criminal Code on two counts of dangerous driving causing bodily harm. [ 3 ] The appellant was sentenced to six months of incarceration on each charge to be served concurrently.

Supervised probation for two years was imposed along with a driving prohibition of three years. [ 4 ] The sentencing disposition was based on primary concerns of deterrence and denunciation expressed by the trial judge which caused him to direct that the incarceration be served in closed custody and not in the community pursuant to a conditional sentence. [ 5 ] The appellant appeals both his convictions and resulting sentences. For the reasons which follow, I would dismiss the appeal on both conviction and sentence.

BACKGROUND [ 6 ] The appellant drove his 2001 compact car northeast on Eldon Street in Fortune, NL on a cold winter’s evening at about 6:30 p.m. There were four passengers in the motor vehicle, which was also transporting personal possessions of two of the passengers, who were moving to another residence in Fortune. The appellant had made one trip earlier that day from the former residence to the new one without incident. [ 7 ] On the second trip, the trunk of the appellant’s vehicle was filled with personal property. Computer parts and accessories were in the back seat area where three passengers were seated.

The appellant’s tools, which he used to repair drywall in the former residence, were stored on the floor of the back seat. The rear seat of the vehicle was described by witnesses as being “cramped and congested”, and one of the female passengers said she asked the appellant to speed up because she was uncomfortable. [ 8 ] Lindsey Matterface sat next to the appellant on the front passenger side. The other three passengers, Tony Ashford, Veronica Brady and Danielle Hepditch, sat in the rear, with Mr. Ashford sitting behind Ms. Matterface, Ms. Brady sitting in the middle of the back seat and Ms.

Hepditch sitting behind the appellant. A box containing a dozen bottles of beer was placed between the feet of Ms. Matterface on the floor on the passenger side of the front seat. [ 9 ] The posted speed limit along Eldon Street was 30 kilometres per hour.

The route of travel of the appellant’s vehicle was northeast along Eldon Street until the street intersected with Forest Road, at which point the appellant would have had to navigate around a sharp turn. [ 10 ] Deborah Hillier, a resident of Fortune, along with her eleven year old daughter, left their home shortly before 6:30 p.m. to walk to the Salvation Army Citadel so that her daughter could receive instructions in mime. They had been walking for approximately five minutes when Ms. Hillier noticed a vehicle coming towards them on Eldon Street.

Her initial impression upon seeing the vehicle was that it was moving at a fast rate of speed because of the noise that it was making. Ms. Hillier reacted by reaching towards her daughter to push her further inward from the gravel shoulder upon which they were walking. However, the appellant’s vehicle struck both of them. [ 11 ] At trial, two years after the event, Ms. Hillier described serious injuries to her leg which required several surgeries and extensive physiotherapy, and requires her to use a cane while walking.

Besides intermittent problems with her balance, she also had injuries to her chest, ribs and abdomen. She has difficulty dressing herself, problems with footwear and cannot participate in certain recreation activities. She has continuing pain and discomfort in her leg. She has adverse psychological effects from anxiety and distress caused by her predicament. She feels she has lost her dignity and independence, and still has flash backs about the accident. [ 12 ] Barry Spencer, who was also walking ahead of Ms.

Hillier and her daughter, testified at trial that he too felt that the appellant’s vehicle was being operated at a fast rate of speed. Out of fear for his safety, he increased his walking speed and ultimately started running into a neighbour’s driveway to avoid being struck. [ 13 ] Wayne Thornhill was driving his pick-up truck in the opposite direction along Forest Road towards its intersection with Eldon Street, with his wife as a passenger.

When he first saw the appellant’s vehicle he testified it was fishtailing and appeared to be riding on two wheels as it spun out of control on the sharp angle of the intersection. He saw the vehicle strike a pole support system in the form of a rock-filled breastwork, after which he saw the appellant’s vehicle strike Ms. Hillier and her daughter. [ 14 ] During the short drive and before the loss of control of his vehicle, the appellant asked Ms. Matterface to open the box of beer on the floor and to hand him an open bottle of beer.

She testified that an open bottle of beer was alternatively at the appellant’s lips or between his legs shortly before he lost control of the vehicle. [ 15 ] Black ice was alleged by the appellant to have been present in the area where the vehicle went out of control, and there was testimony regarding the condition of the surfaces of Eldon Street and Forest Road during the period leading up to the accident. The appellant admitted in a statement to police that his speed prior to the accident was 50-55 kilometres per hour.

DECISION OF THE TRIAL JUDGE [ 16 ] The trial judge summarized his major findings of fact in respect of the appellant’s driving in his reasons as follows: [53] In the circumstances prevailing at that time and judged objectively, Mr. O’Keefe’s driving was dangerous. The following “circumstances” are relevant to my finding that Mr. O’Keefe drove his vehicle dangerously:

• Pedestrian and vehicular traffic was present on Eldon Street. • Eldon Street is narrow in places and does not have sidewalks for pedestrians to use. • The speed limit on Eldon Street is 30 kph. • Eldon Street turns sharply to the left where it intersects with Forest Road. • Eldon Street is bounded by many residential properties and is a major thoroughfare in the Town of Fortune. • It was dark at the time. • It was a cold, winter evening and so that black ice may have been present on the road. [54] The best indications that Mr.

O’Keefe drove dangerously come from the reactions of those who witnessed what was happening: • Deborah Hillier tried to push her daughter out of harm’s way as she saw his vehicle nearing them. • Barry Spencer ran into a driveway so the car would not hit him. • Veronica Brady said she closed her eyes and put her head down when she saw the truck coming and wondered if they were going to make it. • Lindsay Matterface did the same thing. • Wayne Thornhill said he was “frightened” when he saw Mr.

O’Keefe coming at him and so distraught after the accident that he could not speak to the police and fire department after he dialed their number on his cell phone so he handed it to Mr. Spencer. [ 17 ] Based on his fact findings, the trial judge decided that the appellant’s driving constituted a marked departure from the standard of care that a reasonably prudent driver would have observed in the circumstances contrary to s. 249(1) (

a) of the Criminal Code . As a result, the appellant was found guilty on two counts of the offence of dangerous driving causing bodily harm under s. 249(3) of the Code . [ 18 ] The trial judge analyzed the evidence in relation to s. 249(1) of the Code in the context of R. v. Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49 as follows: [56] The trial judge in R. v. Beatty concluded that Mr. Beatty’s momentary lapse of attention was insufficient to support a finding that he was criminally culpable for killing three people.

All nine judges of the Supreme Court of Canada agreed with her finding and endorsed her further conclusion that “…there was ‘insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver’”. The defence claims that Mr. O’Keefe also underwent a “momentary lapse of attention” akin to Mr. Beatty’s lapse and urges me to find that his driving was not a marked departure from the standard of care that a prudent driver would have exercised in the same circumstances. I do not agree. Let me explain. [57] Mr. O’Keefe did not experience a “momentary lapse of attention”.

While his perilous driving may not have lasted any more than a few minutes, it was certainly longer than “momentary”, just as it was deliberate and not merely inattentive. It helps to recall the atmosphere inside Mr. O’Keefe’s vehicle when he left for the second time, bound for Justina Kearley’s to drop off what was left from the apartment. [ 19 ] The trial judge further commented: [59] Mr. O’Keefe turned the music up loud and, to use Mr. Ashford’s words, “put the gas pedal down to the mat”. Mr.

O’Keefe had a request of his own: He was thirsty so he asked Lindsay Matterface to open a beer for him from the box of beer on the floor between her feet. Ms. Matterface did as he asked and opened him a bottle of beer which he drank from when it came across. He says he lowered the beer to the seat and balanced it between his legs after he took a mouthful from it. And then he met the truck at the bend in Eldon Street and panic set in. [60] My purpose in reciting the preceding facts was simply to show how deliberate Mr.

O’Keefe’s actions were during the short time, whether it was many long seconds or a few short minutes, leading up to the accident. His words and actions display a “derring-do” attitude that is incompatible with his present claim that he suffered a momentary lapse of attention. Mr. O’Keefe took the risk that he would have an accident.

He may not have understood how truly dangerous his behaviour was but it far exceeded what a prudent driver would have done in those circumstances. [ 20 ] The trial judge summarized at para. 61 the key aspects of the appellant’s “risky” driving behaviour as follows: • A fully-loaded (perhaps overloaded) car. • An elevated noise level. • The distraction of four passengers. • Drinking from a bottle of beer while driving and then either carrying it in his hand or between his legs. [ 21 ] The trial judge then turned his attention to the relevance of the issue of alcohol with respect to the appellant’s conduct.

The police reported that the appellant did not have enough alcohol in his blood to impair his ability to drive. He had a low reading under the ALERT demand which provided no grounds for the police to give him a breathalyzer demand.

[ 22 ] However, the learned trial judge noted that having an open bottle of beer in his hand while driving a vehicle is an offence under the Liquor Control Act, R.S.N.L. 1990, c.L-18, and concluded that the consumption of beer while driving is reflective of behaviour which constituted “a marked departure from what a prudent person would do in the circumstances”. The trial judge found at para. 64: … that this behaviour betrays Mr.

O’Keefe’s cavalier attitude toward his responsibilities as a driver; and it shows that he blithely ignored the risk that he was exposing his passengers and other members of the public while operating his vehicle. … He concluded that the appellant’s manner of driving did not constitute a “momentary lapse”, but rather constituted dangerous driving as defined by s. 249(1) (

a) of the Criminal Code . [ 23 ] Having convicted the appellant, the trial judge was satisfied that Mr. O’Keefe’s conduct justified emphasis being placed on the principles of denunciation and deterrence in sentencing. He was concerned that the reckless nature of the appellant’s driving which included high speed in a residential area in winter conditions while drinking from an open bottle of beer and having a prior conviction for open alcohol in a vehicle warranted a stern response. [ 24 ] He decided that a six-month period of incarceration was an appropriate sentence and that a conditional sentence was not.

He also ordered probation for two years and a driving prohibition of three years. APPLICABLE LAW [ 25 ] The relevant parts of s. 249 of the Criminal Code read: 249 .

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; …..

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. ISSUES ON APPEAL [ 26 ] The appellant pleaded two grounds of appeal regarding conviction and three grounds regarding sentence as follows: Conviction : (

i) the verdict is unreasonable and cannot be supported by the evidence. (ii) the learned trial judge misunderstood and misapplied the evidence. Sentence : (

i) the learned trial judge placed too much weight on deterrence. (ii) the learned trial judge failed to give sufficient weight to the antecedents of the appellant. (iii) the sentence is outside the range involving similar injuries by a complainant and similar antecedents for an accused. ANALYSIS (

i) Conviction [ 27 ] There is really only one ground of appeal regarding conviction. The appellant’s position that the verdict is unreasonable and unsupportable is based on the submission that the trial judge made unreasonable findings regarding the credibility of the Crown witnesses. Notwithstanding the principle of appellate deference regarding findings of credibility made by a trial judge, appellant’s counsel contends that there is justification for overturning the convictions of the appellant because of the serious lack of credibility of key Crown witnesses.

The main attack is on the credibility of the passengers travelling in the appellant’s vehicle at the time of the accident. [ 28 ] The trial judge relied on the evidence of Tony Ashford seated in the back seat behind the front seat passenger. While admitting that he had consumed a considerable amount of beer while assisting his friends with their efforts to move their belongings, Mr. Ashford nevertheless testified that, after the appellant’s vehicle entered Eldon Street, the appellant’s vehicle increased speed rapidly, and he felt as though the appellant had put the accelerator to the floor.

The appellant’s counsel says not only was Mr. Ashford’s evidence unreliable because he had been drinking, but also his credibility was in doubt because his claim that road conditions were slushy and slippery from the beginning of the journey to the accident site was not consistent with the evidence of the other witnesses, including the police officers who were on the scene. [ 29 ] Veronica Brady, sitting in the middle of the back seat with her legs “cramped in under the computer”, testified that she asked the appellant to speed up because of the discomfort she was encountering as the drive commenced.

She confirmed that, prior to the mishap, the appellant had tipped the open bottle of beer up his mouth, “took a swally of it” and drove on. She testified that she knew the

appellant’s vehicle would not be able to navigate the sharp turn at the intersection of Eldon Street and Forest Road if it continued to bedriven at a high rate of speed. She also confirmed that when the Thornhill vehicle was seen while the appellant attempted to navigate theturn, it was in its own lane. Ms.

Brady did acknowledge on cross-examination that her memory was poor, an admission appellant’scounsel alleges was not properly weighed by the trial judge. [30] Lindsey Matterface, the front seat passenger, admitted that she could not remember the events of the accident very clearly, butthat she could recall that the appellant caused the speed of the vehicle to accelerate to the point where she felt that “he just pushed downon the gas” as they left the former residence and that the drive prior to the accident was “scary”. [31] The third passenger in the back seat, Danielle Hepditch, gave evidence that she could not see much from where she was sittingand had no idea how fast the vehicle was being driven.

She was fourteen years of age at the time of the accident. [32] Appellant’s counsel submits that the weakness of the memories of the passengers combined with the impairment by alcoholaffecting the reliability of the evidence of Tony Ashford raises considerable concerns regarding the credibility and sufficiency of theCrown’s case.

He also contends that the trial judge failed to give adequate and convincing reasons to justify his reliance upon theevidence of any of the passengers given the evidentiary frailties that were clear from the record. [33] Appellant’s counsel relies on the Supreme Court of Canada decision in R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 for theproposition that the reasons of the trial judge must be sufficient to fulfill their function of explaining why the accused was convicted,particularly when the conviction is grounded significantly on the credibility of key witnesses relied upon by the prosecution. (See alsoR. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 and R. v.

Burke, (SCC), [1996] 1 S.C.R. 474.) [34] The appellant’s position is not sustainable given that the trial judge conducted a detailed analysis of the credibility of each ofthe passengers in the appellant’s vehicle while addressing all of the alleged weaknesses raised with regard to their credibility. Notwithstanding the fact that Tony Ashford had consumed up to six bottles of beer in a period of three to four hours prior to reaching theapartment where the possessions to be moved were stored, the trial judge felt Mr. Ashford was “one of the more reliable of the civilianwitnesses who testified”.

At page 14, footnote 9 of his reasons, the trial judge wrote: … He acknowledged that he had been drinking earlier and that the alcohol he drank may have affected his judgment of events and howhe remembered them. However, I was impressed by his candour and the clarity of what he did recall about what happened, as well as theconsistency between his memory of the events and what others said. He did not speculate about what may have happened and he limitedhimself to what he could actually remember, instead of surmising or relying on what somebody else may have told him.

I do not agreewith the defence that his evidence is unreliable and should be discounted entirely, although he may have been influenced by the alcoholhe drank earlier that day. [35] The trial judge relied on the evidence of Ms. Matterface who sat in the front passenger seat. He found that she had providedrelevant evidence on two important issues, the consumption of beer by the appellant and the speed of the appellant’s vehicle during thetwo delivery trips. The trial judge wrote at para. 40: • She opened a bottle of beer for Mr.

O’Keefe “as we were driving up the road” and when she passed it to him he “put it up anddrank out of it”. • She and Mr. O’Keefe had just been to Justina Kearley’s with a first load of their things and returned to the apartment for whatwas left; she said Mr.

O’Keefe drove at the speed limit during their first trip and had no problem controlling his vehicle in the turn at theForest Road intersection. [36] The trial judge also relied on some of the evidence of Veronica Brady to the extent that she was sitting in the middle of theback seat in a cramped and uncomfortable position, which caused her to make a request that the appellant “hurry up”.

She testified thathe did so. [37] Having focused on the issue of speed as the primary factor in this accident, the trial judge found that there was “morecompelling” evidence about speed from Deborah Hillier and her daughter along with Barry Spencer, the other pedestrian, and WayneThornhill, the driver of the pick-up truck. [38] The trial judge noted that Ms. Hillier had reacted as soon as she saw the lights of the appellant’s motor vehicle by concludingthat it was coming at a fast rate of speed and she immediately tried to get her daughter further away from the shoulder of the road.

Shewas not successful. [39] The trial judge emphasized that Barry Spencer, who was walking a short distance ahead of Ms.

Hillier, testified that, becausethe appellant’s vehicle appeared to be coming at a fast rate of speed, he began to move away from the gravel portion next to thepavement on Eldon Street in order to take refuge in the driveway of a neighbour’s property. [40] Wayne Thornhill testified that as he drove his truck towards the sharp turn at the intersection of Eldon Street and Forest Roadhe could hear a “scraping noise” from the approaching car that appeared to be coming from studded tires and was loud enough to beheard with the windows closed.

When he saw the appellant’s vehicle it was across the center line of the intersection proceeding at “quitea speed” and “it frightened the shit out of [him]”. [41] Tony Ashford corroborated this testimony by recalling that the appellant’s vehicle was “more or less towards the middle of theroad” as it went into the turn. Mr.

Ashford testified that he could feel the appellant’s vehicle fishtailing, at which point it went towardsthe side of the road and “struck something”. [42] The appellant’s counsel places considerable weight on the proposition that although the road conditions were generallyfavourable on the evening in question, the police evidence supported a defence theory that the vehicle struck an unanticipated patch ofblack ice at the centre of the sharp turn at the intersection of Eldon Street and Forest Road and that this event contributed significantly to

the loss of control of the appellant’s vehicle.

Appellant’s counsel submits that the evidence of the investigating RCMP officers confirmed the presence of black ice towards the middle of the intersection, upon which confirmation he bases the submission that this concealed hazard should have minimized any suggestion that the appellant’s driving behaviour constituted a “marked departure” from the standard of care expected of a prudent driver. [ 43 ] The Crown submits that an analysis of the testimony of the officers only confirmed an observation of the presence of black ice near the edge of the pavement through which the studded tires of the appellant’s vehicle skidded in the process of leaving the paved driving surface and ultimately striking the pole support and Ms.

Hillier and her daughter before coming to rest in an overturned position. [ 44 ] A review of excerpts of the trial transcript containing the evidence of the investigating officer who marked the path of travel of the appellant’s out-of-control vehicle on the roadway pinpointed the location of black ice near the edge of the pavement, away from the centre line contrary to the appellant’s claim. [ 45 ] The trial judge found that he was not satisfied that the evidence established that black ice was present near the centre of the paved intersection where the loss of control occurred.

I do not accept the submission of appellant’s counsel that the approach of the trial judge to this issue effectively shifted the burden of proof to the accused. The trial judge simply weighed the evidence of the eyewitnesses along with that of the investigating officers and concluded that the appellant’s position that black ice was present in the middle of the road at the intersection was not supportable.

I agree with the trial judge’s conclusion that, even if black ice was present at the point alleged by the appellant, he ought to have foreseen that risk before he drove his vehicle at a fast rate of speed, knowing he would have to navigate a sharp turn on the cold evening in question. [ 46 ] The appellant’s position is that the evidence as a whole constitutes nothing more than a “momentary lapse” as opposed to a “marked departure” in the appellant’s driving behaviour. In that regard, the appellant relies on the Supreme Court decision in Beatty .

There the Supreme Court acquitted an accused driver charged with three counts of dangerous driving causing death after his truck had crossed the double solid line of a highway in British Columbia and collided with an oncoming vehicle, instantly killing the three occupants. The evidence before the trial court indicated that the accused was driving his truck at or below the speed limit and that his driving ability was not impaired by alcohol or drugs.

The position of the defence was that the accused had either lost consciousness or fallen asleep prior to the collision. [ 47 ] I do not accept the appellant’s submission. Charron J., writing for the Court, reaffirmed that s. 249 of the Code has both an actus reus and a mens rea element. At paras. 6, 7 and 8 the court said the following: [6] … However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct .

Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea .

Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code , the distinction between civil and penal negligence acquires a constitutional dimension. [7] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects.

First, there must be a “marked departure” from the civil norm in the circumstances of the case . A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree.

It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind . [8] Second , unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care.

Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving .

However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. … (Underlining added; italics in original.) [ 48 ] The trial judge properly rejected the appellant’s submission that the appellant’s driving behaviour constituted merely a “momentary lapse” in detailed reasons set out at paras. 56 to 60 of his conviction decision.

I am satisfied that the appellant has failed to establish reversible error in the form of an unreasonable verdict based on a misunderstanding and misapplication of the evidence in the context of the modified objective test for determining whether the constituent elements for a conviction for dangerous driving causing bodily harm had been proven beyond a reasonable doubt by the Crown or based on the inadequacy of reasons. (ii) Sentence [ 49 ] The three grounds of appeal on sentence can be combined in terms of whether the imposition of a six month sentence of incarceration constituted reversible error based on undue weight given by the trial judge to denunciation and deterrence without proper regard for the appellant’s antecedents and the range of sentences for similar offences. [ 50 ] The appellant submits that the sentence of six months incarceration was not a fit sentence by being outside the range for similar offences and by not taking account of the appellant’s antecedents.

In the alternative, the appellant seeks a conditional sentence. [ 51 ] Following conviction of the appellant, the trial judge invited submissions with regard to sentence and then rendered a detailed written sentencing decision on March 11, 2010. An issue at play in this appeal is whether consideration can be given to a conditional

sentence for a “serious personal injury offence” in light of the amendments to s. 742.1 of the Criminal Code on December 1, 2007. Thisissue was only briefly mentioned by counsel during the sentencing submissions. This matter will be discussed later. [52] In his sentencing decision, the trial judge reiterated that excessive speed was the primary cause of the accident, which seriouslyinjured two pedestrians. He took the position that two concurrent sentences of six months to be served in jail rather than in thecommunity as a conditional sentence were justified on the grounds of general deterrence and denunciation.

The trial judge found thatthere was less need to stress reform, rehabilitation and specific deterrence since the appellant expressed remorse. While noting that thepre-sentence report reflected “quite positively on the appellant”, the trial judge noted that the author of the report made the followingcomment: [T]he defendant reported that it was an accident and he could not have prevented it from happening. He stated that he was sorry that ithappened and he is sorry for the victims’ hassles. He advised that he was very upset the night it happened. He does not remember howfast he was driving that night.

I believe the roads were slippery. (Emphasis added.) [53] The trial judge felt that the appellant may not have made an appropriate connection between his conduct and the seriousconsequences that affected the injured pedestrians.

The trial judge assessed whether a conditional sentence was an appropriatealternative, but rejected it in the following terms: [14] A conditional sentence of imprisonment will generally be better than imprisonment in a jail at achieving the restorative objectivesof sentencing: rehabilitation of the offender; reparations to the victim and the community; promotion of a sense of responsibility in theoffender; and, acknowledgment of the harm done to the victim and the community. [15] The Supreme Court of Canada said in R. v.

Proulx that Parliament made it clear to judges when it introduced conditional sentencesthat it wanted them to use jail terms less often as a sentencing sanction.

The duration and degree of restriction imposed throughconditional sentences are governed by the seriousness of the offence. [16] One final comment about conditional sentences is apropos of this case: A conditional sentence can provide significantdenunciation and deterrence, but there are some cases, and this is one of them, in which the need for denunciation or deterrence is sopressing that a jail sentence will be the only suitable way to condemn the offender's conduct or to deter similar conduct in the future. (Emphasis added.) [54] With respect to the antecedents of the appellant, the trial judge noted that he was born in March 1982 and has a partner, withwhom he is raising a child, who was eleven months old at the time of the sentencing decision.

He is a high school graduate, trained as awelder, gainfully employed as a roofer and highly regarded by his current employer. The criminal record of the appellant was describedas “dated” and unrelated to dangerous driving.

His driving record was “relatively benign”, with the exception of the conviction forhaving open liquor in a vehicle in September 2003. [55] At the conclusion of his reasons for imposing a six-month sentence of institutional custody, he wrote: [52] General deterrence and denunciation are very important in this case, as they always are where innocent people are seriously andneedlessly hurt by careless drivers. These sentencing principles are of primary concern to me in this case because we are told constantlyof the danger that speeding and reckless drivers present for other users of the highways.

It is important to warn these drivers of the risksthat inhere in their behaviour so as to deter them from driving their vehicles when they are either unable or simply unwilling to do sosafely and prudently. The sentences I impose on Mr.

O’Keefe will inform him and others like him of this, as well as denounce thebehaviour. [56] Appellant’s counsel relied on a number of less-current sentencing decisions of lower courts of this Province where monetaryfines were imposed in the range of $1,500-$3,000 combined with driving prohibitions and probation in support of the submission that thesentence here is outside the range and thus demonstrably unfit. The Crown relies on the principle of limited intervention in sentencingdecisions affirmed by the Supreme Court of Canada in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90 whereChief Justice Lamer wrote: … absent an error in principle, failure to consider a relevant factor, or an over-emphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentences are demonstrably unfit. [57] I am satisfied that there has been a developing trend towards the imposition of periods of incarceration for serious drivingoffences resulting in bodily harm. The trend emanates from the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5,[2000] 1 S.C.R. 61.

There an eighteen year old expectant father with no record of previous offences pleaded guilty to dangerous drivingcausing death and dangerous driving causing bodily harm. He had driven a mechanically faulty vehicle while being an inexperienceddriver and having consumed alcohol. While attempting to overtake a vehicle, he crossed the centre line and struck an oncoming vehicle,resulting in death to the passenger in his vehicle and serious bodily harm to the driver of the oncoming vehicle. [58] The trial judge in Proulx considered a conditional sentence pursuant to s. 742.1 of the Criminal Code.

Notwithstanding thatthe trial judge found that the accused posed no community danger and that a term of imprisonment was not required for specialdeterrence, she decided that an eighteen month term of imprisonment was required for the purpose of denunciation and generaldeterrence. [59] The Court of Appeal held that the trial judge placed undue emphasis on the principle of denunciation, allowed the appeal andresentenced the accused to an eighteen month conditional sentence. [60] The Supreme Court reversed the decision of the Manitoba Court of Appeal and restored the sentencing decision of the trial

judge. While doing so, the Supreme Court acknowledged that the imposition of a conditional sentence was open to the trial judge basedon the provisions of the Code as they stood at the date of that decision. [61] The Court also confirmed that the sentencing judge’s authority included the discretion to give appropriate weight to differentobjectives of sentencing.

This approach prohibited interference by the appellate court by substituting its opinion as to the weight to begiven to denunciation as opposed to rehabilitation. [62] The following decisions are reflective of non-intermittent custodial sentences being imposed for offences under s. 249(1)(a). They also indicate a range of custodial sentences which supports a conclusion that the sentence imposed by the trial judge was notoutside the range. In R. v. Synard, 2006 NLTD 101, 257 Nfld. & P.E.I.R. 341, the accused pleaded guilty to dangerous driving causingdeath and bodily harm.

He lost control of his vehicle, ran into a ditch and struck a culvert. One passenger died, and the other was thrownout of the car and suffered broken bones and cuts. He was sentenced to eighteen months’ incarceration for dangerous driving causingdeath and six months’ incarceration for dangerous driving causing bodily harm, to be served concurrently. He was also sentenced to adriving prohibition for a period of five years. [63] In R. v. Bennett, (NLPC), an unlicensed driver pleaded guilty to dangerous driving causing bodily harmand possession of marihuana.

He had driven an unregistered vehicle into a gravel pit from a dirt road at a high speed, sending one of thepassengers into a coma for nine days and causing partial paralysis and memory loss. The accused had no criminal convictions, but sevenconvictions under the Highway Traffic Act, RSNL 1990. The trial judge sentenced him to six months’ imprisonment, three-and-a-halfyears’ driving prohibition, and one year of probation. [64] In R. v. Tapper, 2009 NLTD 97, the accused pleaded guilty to two counts of dangerous driving causing bodily harm and onecount of breach of probation.

Having consumed a significant amount of alcohol, the offender drove too fast, failed to make a turn andcaused a head-on collision. A passenger and the other driver were seriously injured. The trial judge sentenced him to twenty months ofincarceration on each charge of dangerous driving causing bodily harm, to run concurrently, followed by three months’ incarceration forbreach of probation and a three-year driving prohibition. The trial judge commented: [33] The range of sentence indicated is, in my view, very low for the facts of this case.

I note that the more recent cases take a differentview of these offences, imposing greater periods of incarceration for offences which do not have the aggravating circumstances found inthis case. This appears to reflect increasing public intolerance for offences involving driving after consuming alcohol. [65] In R. v. Belanger, 2009 ONCA 867, [2009] O.J. No. 5242 the Ontario Court of Appeal considered a Crown appeal of a 60 dayintermittent sentence resulting from a guilty plea to a charge of dangerous driving causing bodily harm.

Belanger, who was 60 years oldand had no criminal record but general speeding offences on his driving record, struck a motorist of a disabled vehicle. He had beendrinking heavily. The motorist’s leg was severed and she required a prosthetic leg. The motorist was left with chronic pain, arthritis andresidual psychological problems.

The physical injuries to Deborah Hillier in the current case were less severe in nature but somewhatsimilar in their physical and psychological effects to those described in Belanger. [66] The Ontario Court of Appeal found that the 60 day intermittent term of incarceration, to be served on weekends as analternative to an unavailable conditional sentence, was demonstrably unfit. The Court held that a non-intermittent custodial sentence wasjustified given the importance of denunciation and general deterrence.

The Court felt the trial judge failed to adequately recognize the“profound harm” suffered by the injured motorist. Given that the 60-day intermittent sentence had been served, the Court chose not toimpose a longer sentence but extended the driving prohibition from three to five years. [67] In R. v. Cepic, 2010 ONSC 561, the accused, who had not been drinking, left a gas station and drove his new vehicle acrossthree lanes of traffic, cutting off other vehicles. He struck a car, which was then struck by another.

He approached the vehicle he hadstruck, but panicked and fled before offering assistance. [68] The accused was remorseful, surrendered to police and pleaded guilty. He was a refugee and an expectant father. The driverand two passengers of the car the accused hit were seriously injured. He was sentenced to six months’ imprisonment minus credit forpre-trial custody, to be served intermittently. He also received a driving prohibition for two-and-a-half years. [69] In R. v.

Thompson, 2011 ONSC 624, the accused pleaded guilty after four days of trial to impaired driving causing bodilyharm and two breaches of an undertaking. He was convicted of dangerous driving causing bodily harm. [70] The accused passed out while driving, swerved into the other lane of traffic and hit another vehicle in an “oblique partial head-on collision.” The accused had double the legal limit of alcohol in his system. He was driving after midnight, thereby breaching theterms of his novice license and of his undertaking for a drinking and driving charge on which he was later convicted.

He was uninsuredand driving in breach of his bail conditions from another charge which required him to drive only to work. The victim suffered“debilitating injuries” that “left him with a permanent impairment and a reduced quality of life.” The accused was also seriously injured. [71] The accused was married and had six children. He had become an active volunteer in his church community. He had alcoholabuse issues. The probation officer thought he might be a good candidate for a conditional sentence, but was also troubled byinconsistencies in his employment record.

The accused was sentenced to two years’ imprisonment on each of the dangerous driving andimpaired driving charges, to be served concurrently and followed consecutively by six months’ imprisonment on the two breach ofundertaking charges, also to be served concurrently. A four-year driving prohibition and a DNA order were also imposed. [72] In this case, the trial judge focused on the character and record of the accused while addressing whether an alternative toincarceration was appropriate.

He expressed concern about the appellant’s past offence of having open liquor in a vehicle combined withhis conclusion that the appellant had not demonstrated recognition and acceptance of full responsibility for his criminal behaviour. [73] I am satisfied that this analysis by the trial judge is supported by the reasons of Lamer C.J.C. in Proulx at para. 131: [131] … trial judges are closer to their community and know better what would be acceptable to their community. Absent evidence that

the sentence imposed by the trial judge was demonstrably unfit, the Court of Appeal should not have interfered to substitute its ownopinion for that of the sentencing judge. The trial judge did not commit a reversible error in principle and she appropriately consideredall the relevant factors. Although the Court of Appeal’s decision is entitled to some deference … in my opinion it erred in holding thatthe sentencing judge had given undue weight to the objective of denunciation.

I see no ground for the Court of Appeal’s intervention. (Emphasis added.) [74] It is clear from the reasons of the trial judge that he was concerned that denunciation and general deterrence were paramountin this case while deciding upon a fit sentence.

I am satisfied that deference by this Court is justified based on the detailed analysis of thetrial judge in his conviction and sentencing decisions and in the context of the principles set out in Proulx. [75] Although what has already been written is sufficient to justify dismissal of this appeal, it is nevertheless appropriate to makesome observation on the arguments relating to the appropriateness of imposing a conditional sentence in this case.

At the sentencinghearing, Crown counsel submitted that a conditional sentence was not a sentencing option for the appellant in light of the amendments tos. 742.1 of the Criminal Code which became effective before the commission of the offences in this case. In response, the appellant’scounsel argued that these amendments only applied to serious bodily offences where the maximum sentence is in excess of ten years.

Hesubmitted that the appellant’s offences only made him liable to a sentence up to but not in excess of ten years rendering the s. 742.1amendments inapplicable. [76] Without addressing this issue, the trial judge gave detailed reasons why incarceration as opposed to a conditional sentence wasthe more appropriate response to the offences. Since the appellant seeks a conditional sentence as an alternative, it is appropriate toaddress the question of whether such a sentence could be imposed for the offences committed. [77]

Section 742.1 of the Criminal Code was amended on December 1, 2007 to exclude the availability of conditional sentences ofimprisonment where a person has been convicted of a “serious personal injury offence” when the Crown has proceeded by way ofindictment. The offences in this case occurred January 31, 2008. [78]

Section 752 of the Code 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 psychologicalharm upon another person, and (iii) for which the offender may be sentenced to imprisonment for ten years or more. [79] The offence of dangerous driving causing bodily harm falls under s. 249(3) of the Criminal Code and carries with it amaximum sentence of ten years. In Belanger, the sentencing judge took the view that Mr.

Belanger would likely have been a candidatefor a conditional sentence following a guilty plea on a charge of dangerous driving causing bodily harm.

The court noted that the trialjudge “… recognized that the recent amendments to s. 742.1 of the Criminal Code precluded a conditional sentence for a seriouspersonal injury offence such as this one where the Crown proceeded by way of indictment.” As noted earlier in these reasons, theOntario Court of Appeal considered a 60-day intermittent sentence as an alternative to a conditional sentence to be demonstrably unfitand that a “non-intermittent custodial sentence was warranted”. Since Mr.

Belanger had already served his sentence, the court declinedto impose a further period of incarceration. [80] Justice Wein of the Ontario Superior Court of Justice reviewed the developing jurisprudence on this issue in the context of adangerous driving offence in Cepic. Her decision referred to Belanger as a starting point. She analyzed the existing case law at paras.12-15 and para. 18 as follows: [12] The problem of defining “serious personal injury offence” in the context of driving based offences was recently reviewed in R. v.Biernat, [2009] ONCJ 273.

In that case, Brown J. canvasses two lines of authority considering the definition of “serious personal injuryoffence”. The first line, following the Alberta Court of Appeal’s decision in R. v. Neve, 1999 ABCA 206 , [1999] A.J. No.753, holds that the actions of the offender must be objectively dangerous in order to meet the definition of a “serious personal injuryoffence”. The second line of authority canvassed by Brown J., follows the Saskatchewan Court of Appeal’s decision in R. v. Goforth,2005 SKCA 12 , [2005] S.J. No. 79, in which the Neve test of objective dangerousness was rejected.

In Goforth, the court foundthat it is not necessary to assess the level of violence or dangerousness of the offender’s actions in order to determine whether the offencein question meets the definition in

section 752. [13] That Neve has limited application in the context of assessing the availability of conditional sentences has been acknowledged in R.v. Ponticorvo (2009), 2009 ABCA 117 , 246 C.C.C. (3d) 48 (Alta. C.A.) [14] The Neve approach has been rejected in some decisions in this province: see for example R. v. Naess, [2005] O.J. No. 936 (S.C.) atpara. 54, in which Hill J. rejected the submission that although an offence might “technically” meet the definition of a serious personalinjury offence, the court might still assess the objective seriousness of the violence used. See also R. v.

Thompson 2009 ONCJ 359, atpara. 25. [15] In R. v. Nikolovski, (ON CA), [2005] O.J. No. 494, at para.16, the Court of Appeal has made it clear thatwhether an offence qualifies as a “serious personal injury offence” under

section 752 depends on the facts of a particular case. ….. [18] Cases of dangerous driving causing bodily harm inevitably amount to “conduct endangering or likely to endanger the life or safety

of another person” as contemplated by s. 752: if not an essential element of the offence per se, dangerousness and the causing of bodily harm as a practical matter will amount to endangering life or safety. It is hard to posit a circumstance that would not meet the test. Although it is not strictly speaking necessary to decide the issue in this case, in my view the offence of dangerous driving causing bodily harm will always amount to conduct endangering life or safety.

Consequently, the offence of dangerous driving causing bodily harm fits the definition of a serious personal injury offence in ss. 752(a)(ii), and thus, a conditional sentence is not available to the offender. [ 81 ] I reject the submission of the appellant that a conditional sentence is available given Parliament’s legislative message that this does not provide sufficient denunciation and general deterrence for a s. 249(3) offence. I agree with and would apply the Belanger approach that an intermittent custodial sentence is not justified on the facts.

I also conclude that the six month sentence imposed by the trial judge in this case is not outside the range given the appellant’s reckless driving behaviour and the seriousness of the injuries suffered by Ms. Hillier and her daughter. [ 82 ] The current statutory framework is consistent with the view of the trial judge that the concern for deterrence and denunciation can be linked to the serious bodily harm suffered by two pedestrians which warrants a non-intermittent custodial sentence and not a conditional sentence.

SUMMARY AND DISPOSITION [ 83 ] The trial judge did not err in concluding that the appellant’s conduct constituted a marked departure from the standard of care expected of a prudent driver contrary to s. 249(1) (

a) of the Criminal Code resulting in conviction for two indictable offences of dangerous driving causing bodily harm under s. 249(3) of the Code . [ 84 ] The trial judge also did not err in focusing on denunciation and general deterrence as the primary factors in sentencing the appellant to two concurrent terms of six months of institutional incarceration. [ 85 ] In the result, the appeal is dismissed and all aspects of the sentence of the trial judge are affirmed. _______________________ M. F. Harrington, J.A. I concur: ______________________ J.D. Green, C.J.N.L. I concur: _______________________ C.W. White, J.A.