R. v. Steele-Young, 2019 NLSC 174

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Steele-Young , 2019 NLSC 174 Date : October 4, 2019 Docket : 201701G7528 Her Majesty The Queen v. Joshua Steele-Young Before: Justice Frances J. Knickle Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 16, 2019 Date of Oral Judgment: October 4, 2019 Appearances: Jennifer E. Lundrigan Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Offender

Authorities Cited: ​ CASES CONSIDERED: R. v. Lacasse, 2015 SCC 64; R. v. Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (N.L. Prov.Ct.; R. v. Biancafiore, (1997) (ON CA), 35 O.R. (3d) 782, 10 C.R. (5th) 200 (C.A.); R. v. M. (C.A), (SCC), [1996] 1 S.C.R. 500; R. v. Sidhu, 2019 SKPC 19; R. v. Blackmore (1996), (NL SC), 140 Nfld. & P.E.I.R. 56,438 A.P.R. 56 (Nfld. S.C.(T.D.)); R. v. Warren (2003), 222 Nlfd. & P.E.I.R. 270, 662 A.P.R. 270 (N.L.S.C.(T.D.)); R. v. O’Keefe, 2011NLCA 41; R. v. Proulx, 2000 SCC 5; R. v. Sparkes (2011), 315 Nfld. & P.E.I.R. 71, 981 A.P.R. 71 (N.L. Prov. Ct.); R. v.

Mercer, 2018NLSC 219; R. v. Tapper, 2009 NLTD 97; R. v. Point, 2006 CarswellOnt 938, 30 M.V.R. (5th) 138 (Ct. J.); R. v. Rich, 2019 NLSC 37 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Highway Traffic Act, R.S.N.L. 1990, c. H-3 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] To make the decision to get behind the wheel of a motor vehicle is not a decision without implications or obligations. It is adecision that includes a commitment to your passengers, other drivers, indeed your community, that you will operate this fantasticallypowerful machine with care.

Too often, the attitude toward this powerful machine as occurred in this case, and so many others hasresulted in tragedy. Joshua Steele-Young, was convicted after a trial of dangerous driving causing bodily harm to Morgan Pardy,contrary to Section 249(2) of the Criminal Code, R.S.C. 1985, c. C-46. This is the decision on sentence. [2] The circumstances of the offence are detailed in the decision on verdict 2019 NLSC 143. In

summary, while in a heatedargument with his then girlfriend Morgan Pardy, who was seated in the front passenger seat of his vehicle, Mr. Steele-Young drove at anexcessive speed, 130 kilometres per hour, in poor weather conditions on a busy and snow-covered highway just outside the City of St.John’s, Newfoundland and Labrador. He refused repeated requests by Morgan Pardy for him to slow down, and let her exit the vehicle. He passed at least two vehicles. He was traveling far too fast for the conditions. [3] Mr.

Steele-Young lost control of the vehicle and the car left the highway, became airborne, and then rolled several times. Before the vehicle came to a rest, Morgan Pardy, who had removed her seatbelt in an effort to get Mr. Steele-Young to allow her to exitthe vehicle, was ejected from the car. She ascended high into the air and then came to rest on the ground many feet from the vehicle. Witnesses described her “cartwheeling” though the air going above the telephone lines. She suffered serious injuries. She ispermanently paralyzed and her life as she knew it before the incident has ended.

She requires the use of a wheelchair and assistance withalmost all facets of her day-to-day living. Mr. Steele-Young, who was wearing a seatbelt, suffered minor injuries. THE PRINCIPLES OF SENTENCING [4] The principles of sentencing are codified under the Criminal Code at sections 718 to 718.2. Under

section 718.1, a sentencemust be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to as the levelof “moral blameworthiness” of the offender, or the “proportionality principle.” Wagner, C. J. in R. v. Lacasse, 2015 SCC 64, explainedthe proportionality principle in sentencing, at paragraph 12: In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposedon an offender.

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier thesentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also onthe moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [5] The proportionality principle includes a consideration of the kinds of sentences that have been imposed for similar offenders insimilar circumstances, referred to as the “parity” principle.

However, as stated by Wagner, C.J., first and foremost, the sentence must“fit” the offender and the circumstances of the particular case. It is an individualized process. As stated in Lacasse, at paragraph 58: “The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematicalcalculation. It involves a variety of factors that are difficult to define with precision.” [6] The fit sentence must reflect the fundamental principle under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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 and the harm done to victims or to the community that is caused by 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 or to the community. [7] The sentence imposed must also promote respect for the law, and a just and peaceful society as stated in

section 718. [8] In cases involving offences of dangerous driving, the principles of deterrence and denunciation are paramount. As stated byGorman, PCJ. in R. v. Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (N.L. Prov. Ct.), at paragraph 36: The primary objective of the Court in imposing sentence for the offence of dangerous driving must be protection of the public. TheCourt's primary emphasis must be placed on general deterrence (see R. v. Fox, 2001 ABCA 64 (Alta. C.A.) at paragraph 27 and R. v.Hindes, 2000 ABCA 197 (Alta. C.A.) at paragraph 43).

When an offender has a history of improper driving, specific deterrence will alsoplay an important role (see R. v. Squires, [1995] N.J. No. 157 (Nfld. C.A.) and R. v. Strickland, [1997] N.J. No. 398 (N.L. T.D.)). [9] This is not to say that there is no consideration of the principles of rehabilitation; there is and will be in this case, but the natureof the offence requires a primary emphasis on deterrence and denunciation.

Wagner, C.J. in Lacasse, at paragraph 73 stated: While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences thatmight be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harshsentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: [D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

These crimesare often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the onesmost likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145(Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont.

C.A.), at paras. 18-24; R. v.Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [10] As observed in the above excerpts there is a tendency for offenders and members of the public to see this kind of conduct,however reprehensible, not so much as “criminal,” but as “an accident.” In R. v. Biancafiore, (1997) (ON CA), 35O.R. (3d) 782, 10 C.R. (5th) 200 (C.A.), referred to in the above quote, discussing the need for an emphasis on denunciation of suchoffences, the Court stated at paragraph 26: “The drinking and driving offences occupy a unique position in the criminal law.

Unlikemost other criminal offences, such as crimes of violence or crimes against property, the stigma attached to the drinking and drivingoffences is often not matched by the objective gravity of these crimes.” [11] The above statement is equally applicable to other driving offences such as dangerous driving. [12] The principle of retribution is also a legitimate consideration in sentencing, particularly where the moral blameworthiness of theoffender is high. See R. v. M. (C.A), (SCC), [1996] 1 S.C.R. 500.

The principle of retribution does not equate withvengeance, but as stated by Lamer, CJ. in M. (C.A.), at paragraph 80: … Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothingmore. … [13] There is no place for vengeance in sentencing. The application of the principle of retribution is to accord the offender theappropriate punishment for his or her criminal conduct; the “intentional risk-taking,” and the “consequential harm” caused by theconduct.

The proper role of retribution will reflect the moral blameworthiness of the offender in the circumstances, and attempt topromote both reparation for the harm done to a victim under

Section 718(

d) and (e), and a sense of responsibility in the offender underSection 718(f). [14] Having said that, there is nothing the criminal law can do to restore Morgan Pardy to her state as it was prior to the commissionof the offence. This is the tragedy of these kinds of offences (See R. v. Sidhu, 2019 SKPC 19; particularly at paragraph 92). [15] No one will argue with Morgan Pardy that she “wants her life back” or that her life has been changed forever. Nor is therereason to doubt the veracity of Mr.

Steele-Young’s expressions of regret made at the sentencing hearing: that if he could go back, hewould have made different choices. While Mr. Steele-Young firmly denied responsibility that his conduct was the cause the harmsuffered by Morgan Pardy, indeed he blamed Morgan Pardy, I accept that Mr. Steele-Young never intended Morgan Pardy to suffer this

kind of permanent harm. Unfortunately, no sentence can undo Mr. Steele-Young’s actions or restore Morgan Pardy to the state prior to the accident. [ 16 ] The principle of rehabilitation must also play a role as stated in Lacasse , at paragraph 4 : “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations around the world, and it helps the courts impose sentences that are just and appropriate.” [ 17 ] The principle of restraint must also play a role in determining the proper sentence in these circumstances, as per Sections 718.2 (

d) and (e). Mr. Steele-Young is a youthful, first-time offender who has never faced a term of imprisonment. THE CIRCUMSTANCES OF THE OFFENCE [ 18 ] The circumstances of the offence are grave. While not the most serious dangerous driving that has ever occurred, or could be imagined, Mr. Steele-Young’s moral blameworthiness in these circumstances is high. Mr. Steele-Young, intentionally drove at a speed of 130 kilometres, while distracted by a heated argument with his passenger, on slippery and snow-covered roads, passing vehicles and ignoring the pleas of Morgan Pardy to slow down.

He was fully aware that Morgan Pardy wanted him to slow down, and he chose to continue with conduct that was clearly dangerous. This was deliberate conduct that deserves a severe sanction. [ 19 ] Mr. Steele-Young also put the other members of the public who were driving on that highway, at risk; not just Morgan Pardy. It may be recalled from her testimony that as control was lost of the car, Morgan Pardy observed the front of a truck in her passenger window. It does not take imagination to envisage that this truck, in proximity to Morgan Pardy as Mr.

Steele-Young’s vehicle swerved out of control, could have easily become part of the consequences of this dangerous conduct. [ 20 ] The consequences of this deliberate conduct, that is, the bodily harm suffered by Morgan Pardy, are also at the high end of the spectrum of seriousness, without constituting a more serious offence. Morgan Pardy’s life as it was before the dangerous driving has ended. In describing her life before the offence in her Victim Impact Statement, Morgan Pardy stated: I’m not going to try and convince the court that I was an innocent 21 year old at the time.

I was your average 21 year old trying to navigate the world thinking I knew everything. I was going to college in a course I loved, I had a job, my own vehicle I paid for, went out Friday nights, had great friends and I thought I was doing alright in life. [ 21 ] In describing her life in general since the offence: I am a C6 spinal cord injury survivor. The day of the accident I also broke my pelvis, my collar bone, all the ribs on my left side. I was fortunate enough to not have any brain damage or injury to my head.

Doctors were amazed at how fast I was able to adjust to what was happening with my body and my will to fight. Then again, saying I was going to walk again, trying to convince myself that in a year’s time I would be upright and back to my old life was a huge exaggeration on my part. Something I have yet to mentally process in a healthy manner or have yet to accept.

Here we are two and half years later and I’m still a quadriplegic by definition, still in a wheel chair, still can’t walk, still can’t hold a fork or spoon like before and still very dependent on home care workers and my parents to basically do everything for. My pride, my dignity, my morale, my self-esteem and the confident person I was before all this is gone. Dead. Vanished. Non-existent. [ 22 ] Morgan Pardy described her typical day, which is difficult for anyone to imagine unless they are living that day themselves. It is a challenge for her and her family.

She needs assistance for all of her daily functioning of which most of us take for granted; from the simple act of using the toilet to feeding herself. She needs assistance from the moment she wakes until she sleeps at night. Every aspect of her daily life has changed. She now suffers from anxiety attacks. She is often in pain throughout the day. [ 23 ] Her honesty as to her feelings and difficulty embracing her new life, is heartbreaking: I’m jealous of every person who gets to slow dance at a party when a slow song comes on.

I’m jealous of people that get to try on a nice pair of jeans to look nice and feel good about their appearance. I’m jealous of women that have long hair and can use both hands to put their hair up in a simple pony tail or bun. I’m jealous of people that can feel the grass between their toes and jealous of those that can sit by a beach fire at Middle Cove Beach. [ 24 ] She also cannot imagine that she will ever be in a relationship, “who will want me now?” [ 25 ] There was no expression of a desire for vengeance.

While, as discussed above, there is no place for vengeance in sentencing, it is not surprising sometimes that a victim might express such a sentiment. Morgan Pardy’s statement avoids falling into that trap but instead only conveys how her life, by having been rendered a quadriplegic, has been forever changed. Her victim impact statement was detailed and compelling.

It is a testament of courage and, by implication, a plea to others to be aware of the consequences of their decision to drive in a manner that puts the public at risk. [ 26 ] Sharon Stamp, Morgan Pardy’s mother, also provided a detailed victim impact statement. Like her daughter, Ms. Stamp has eloquently detailed how the lives of their family have changed. Her statement illustrates how profound and widespread the consequences of this kind of criminal conduct extend.

She described the horror of coming to realize that the accident she had passed on the highway involved her daughter, and the exhaustion and demands that come with the 24-hour care for Morgan:

It would be naïve on my part to try and explain in detail what one, twenty four hour day is like for Morgan. Because although there are routines in place every day. Every day is different. Because it all depends on Morgan’s mental state, level of pain and anxiety level that particular day. Living life with a quadriplegic isn’t what you see on the movies. Every minute of every day is consumed with how that person is doing and appointments, Progress is slow and plateau’s [ sic ] leaving the person feeling like all the work they strive for was nothing for some days.

I use the word frustration a lot because there is no other word for it, for the person that is injured and the families that care for them. [ 27 ] Sharon Stamp described the strain the circumstances have placed on the whole family, and her relationship with her partner. Yet, it is also clear she is devoted to her daughter. Her one wish is for Morgan Pardy to be able to live pain free: I am one person who got her wish, for my daughter to live. But I want so much more. I want my daughter back. My daughter that flew in the door and out of the house with a “Hi Mom, Bye Mom”, carefree tone to her voice.

My challenging then 21 year old daughter that kept me on my toes, the non-perfect daughter that pipped off school from time to time and the daughter that was free to make her own choices and mistakes. But most of all, right now, I pray for a pain-free daughter. [ 28 ] The above statements illustrate the gravity of this crime in the severe and permanent impact. The circumstances of the offence illustrate the gravity in the deliberate conduct of Mr. Steele-Young to drive dangerously. The sentence imposed must adequately reflect this gravity. THE CIRCUMSTANCES OF THE OFFENDER [ 29 ] Mr.

Steele-Young is now 24 years of age and was 22 when the offence was committed. In a letter provided to the Court, Mr. Steele-Young’s mother, Jacqueline Steel-Young described Mr. Steele-Young when he was a child: As a child Joshua was always a good boy, showing compassion, respect and love for others. Throughout his school years he was a good student, he had many friends and never got in any trouble in or out of school. [ 30 ] Ms. Steele-Young described that Mr. Steele-Young suffers from “ADHD, Depression, and Anxiety” and has been treated with medication and counselling in the past.

But he also enjoyed sports, has graduated from high school and has been employed with his father, and has abided by the conditions of release since having been charged with this offence. It was evident in this letter that Mr. Steele-Young’s mother and family care deeply for him and have supported him throughout these proceedings. These are important supports and provide some assurance that he has reasonable prospects for his rehabilitation. It is also evident that Mr. Steele-Young has positive antecedents. He has no criminal history and a credible employment history as described by his mother, and by Mr.

Steele- Young himself during his testimony. This also bodes well for his rehabilitation. [ 31 ] Throughout this letter, what happened on that day is never described as an “offence,” or conduct that was “wrong,” or “criminal,” but rather as “an accident.” I do not place particular significance on this except that this apparent view of the circumstances echoes Mr. Steele-Young’s testimony. [ 32 ] Mr. Steele-Young’s testimony was repeatedly that the circumstances related to driving were “not my responsibility,” in particular with regard to Morgan Pardy having taken off her seatbelt.

He did not use the words, “not my responsibility” that maybe also the music was too loud so he could not acknowledge the indicators that her seatbelt was off, or that he was driving too fast, but his testimony left the impression that he did not connect his responsibility with these actions and that it constituted dangerous driving.

Likewise, while he admitted he drove 130 kilometers per hour during his testimony, he did not concede that it was too fast a speed to be driving and, in fact, testified that his speed generally “depends on the conditions.” [ 33 ] As stated in the decision on verdict, these kinds of comments are troubling because they reveal a lack of insight on his part as to the significant responsibility that comes with getting behind the wheel of a motor vehicle. This testimony also does not easily reconcile with the references in Ms. Steele-Young’s letter that Mr. Steele-Young takes “full responsibility” for his actions.

I am circumspect that Mr. Steele-Young accepts that the consequences suffered by Morgan Pardy were not the result of an “accident” but the result of his criminal conduct, deserving of a criminal sanction. [ 34 ] However, I do accept statements that he did not wish for Morgan Pardy to be rendered quadriplegic, and now knowing this outcome, that he wishes he had made different choices at that time. I accept he presents with remorse for his conduct in this regard. [ 35 ] There was also a letter filed on Mr. Steele-Young’s behalf from Doctor Matthew Greenberg, Mr. Steele-Young’s medical practitioner. Dr.

Greenberg described that Mr. Steele-Young has had “significant issues with panic attacks, nightmares, persistent excessive anxiety, and decreased mood over the past two years.” According to Dr. Greenberg, Mr. Steele-Young also has a new diagnosis of Post-Traumatic Stress Disorder and the stress of the past two years has had a negative impact on Mr. Steele-Young. Dr. Greenberg expressed concern of the worsening of this condition should he be removed from his supports for a “prolonged period of time.” [ 36 ] It is not surprising that the past two years have been stressful for Mr. Steele-Young.

Without diminishing that he has struggled with his mental health in the past, the criminal process is stressful for the most robust of people. The prospect of being found guilty of a criminal offence and serving a sentence is going to be extremely stressful for most persons – especially as is the case with these kinds of crimes, and is the case here, where the offender is an otherwise generally upstanding citizen. The criminal process must strive to be just, fair, respect human dignity, and be meted in accordance with legal principles, but a journey through the criminal justice system is going to be stressful.

It is not meant to, and cannot be, a pleasant experience. [ 37 ] Given that increased stress is a likely part of the experience of the criminal justice system, I am not satisfied that the statements

from Dr. Greenberg place Mr. Steele-Young in unique circumstances or that he would be different than most persons facing a criminalcharge. There is counselling and programming available to offenders while serving a sentence, and I am confident Mr. Steele-Youngwill be able to avail of same during any period of incarceration. [38] Mr. Steele-Young has been bound by a strict recognizance since the charges were laid. While there have apparently been issuesin the past, there has been compliance since January of 2018. By complying with the terms of his release, Mr. Steele-Young is onlydoing what he ought to do.

Having said that, I accept that the conditions were onerous, akin to house arrest for a lengthy period. I haveconsidered this in determining the appropriate sentence. [39] In

summary, Mr. Steele-Young is a youthful, capable man who has never been in trouble with the law. He has struggled, butalso managed with his mental health in the past. He has been seeking help to address his stress and anxiety as these matters have workedtheir way through the court process. He has the support of his family, and is employed. He has expressed his regret for what hashappened to Morgan Pardy although he does not yet seem to grasp the significance of his conduct as “criminal.” The sentence imposedmust take into account these circumstances.

RANGE OF SENTENCE AND POSITION OF THE PARTIES [40] The maximum available sanction for dangerous driving causing bodily harm as dictated by the Criminal Code is ten years’incarceration. It is also open to the Court to impose a driving prohibition to a maximum of ten years, plus any period of imprisonmentthat is imposed. A review of the jurisprudence reveals that these sentences vary significantly depending on the circumstances. [41] Perhaps an example of the high watermark in sentences imposed for this kind of offence is the tragic case in Sidhu. Mr.

Sidhuby his dangerous driving crashed his large tractor trailer into a school bus carrying the hockey team, the “Broncos.” Sixteen members ofthe team were killed and thirteen were seriously injured. At the time of sentencing, at least one of the victims was rendered a paraplegic. Mr. Sidhu pleaded guilty and was very remorseful for his conduct. Mr.

Sidhu was sentenced to global sentences of eight years, eachconcurrent, for the offences involving deaths, and six years concurrent for each of the offences causing bodily harm. [42] At the other end of the spectrum are cases where fines have been imposed, including several from our jurisdiction (See forexample R. v. Blackmore (1996), (NL SC), 140 Nfld. & P.E.I.R. 56, 438 A.P.R. 56 (Nfld. S.C.(T.D.)); R. v. Warren(2003), 222 Nlfd. & P.E.I.R. 270, 662 A.P.R. 270 (N.L.S.C.(T.D.)).

I note in both Warren and Blackmore, the offenders pleaded guilty,a significant mitigating factor not present here. [43] Defence counsel accepts that a fine is not appropriate in these circumstances. Given the changes to the Criminal Code withrespect to the considerations on sentence where bodily harm has occurred, it may be that in most cases incarceration will be theappropriate sanction. As stated by our Court of Appeal in R. v. O’Keefe, 2011 NLCA 41 at paragraph 57, that since R. v.

Proulx, 2000SCC 5, “there has been a developing trend towards the imposition of periods of incarceration for serious driving offences causing bodilyharm.” [44] The Crown submits the appropriate sentence in these circumstances, is from three to three and one-half years imprisonmentstressing the need for deterrence and denunciation, the high level of moral blameworthiness of Mr. Steele-Young, and the serious andpermanent harm suffered by Morgan Pardy as a result of his dangerous driving. The Crown provided no cases illustrating circumstanceswhere such a sentence for dangerous driving was imposed.

However, the Crown pointed to the Supreme Court of Canada’s decision inLacasse, supra, as both an example of where a sentence may justifiably fall outside of what is described as a typical “range” and for theprinciple that ranges of sentence as established by the jurisprudence are not fixed points from which a sentencing court may not deviate. [45] Counsel for Mr. Steele-Young submits the appropriate sentence is five and one-half months imprisonment, taking into accountthat this will be Mr.

Steele-Young’s first period of lengthy incarceration, his youth, and his positive antecedents. [46] In assessing the cases discussed below, I agree with the Crown that it is important to remember that ranges are just that, ranges. They are not fixed points or “straightjackets” from which a sentencing judge may never deviate (Lacasse, at para. 57). A sentence is notunfit simply because it departs from what might be seen as the given range.

But I am also cognizant that sentence must be based on theproper application of principles including parity to the extent it can be applied and still result in the fit sentence. [47] In this case, while deterrence and denunciation are the principles to be given primary weight, I have not ignored the principleof rehabilitation and parity in sentencing. I have kept this in mind in reviewing the cases provided by counsel. I have reviewed all of thecases provided by counsel; as well as several of the decisions referred to within many of these decisions (for example see R. v.

Sparkes(2011), 315 Nfld. & P.E.I.R. 71, 981 A.P.R. 71 (N.L. Prov. Ct.) at paragraphs 23-32; R. v. Mercer, 2018 NLSC 219, at paras. 32). Thefollowing decisions are discussed below. [48] In Proulx, a youthful and inexperienced driver pleaded guilty to one count of dangerous driving causing bodily harm and onecount for dangerous driving causing death. On the count involving bodily harm he was sentenced to 18 months imprisonment.

Thissentence was upheld by the Supreme Court of Canada. [49] In Hodder, considered in Mercer, a youthful offender (20 years old at the time) pleaded guilty to one count of dangerous drivingcausing death and one count of dangerous driving causing bodily harm. He reached speeds of 130 kilometres an hour. Although thebodily harm suffered by the victim was not as serious as the circumstances here, the deceased in the matter was the victim’s brother. The victim watched his brother drown unable to assist him because of his own injuries. The offender was bound by a probation order atthe time. [50] In R. v.

Tapper, 2009 NLTD 97 (considered in Sparkes), the offender pleaded guilty, albeit on the eve of trial, to two counts ofdangerous driving causing bodily harm. The injuries were serious but do not reach the magnitude of the permanency of injury sufferedby Morgan Pardy. The offender had consumed alcohol and drove recklessly. The Court attached a high level or moral blameworthinessto his conduct. The previous conviction for aggravated assault supported that Mr. Tapper also may have possessed a problem withalcohol.

Two concurrent sentences of twenty months were imposed, and a further consecutive three months for breach of a probation

order. [ 51 ] In R. v. Point , 2006 CarswellOnt 938, 30 M.V.R. (5th) 138 (Ct. J.) a first time offender was sentenced to two years’ incarceration for dangerous driving. He was intoxicated at the time, and the four passengers in his vehicle were almost drowned. His conduct was described as deliberate and he showed a “callous disregard for life”. The circumstances were also considered as evidence of domestic violence towards his partner who was a passenger.

The guilty plea was given considerable significance (see paragraphs 66 and 73). [ 52 ] In O’Keefe , 2010 NLTD 45 , aff’d 2011 NLCA 41 , our Court of Appeal upheld a period of incarceration of six months for an offender who was found guilty after a trial of two counts of dangerous driving causing bodily harm to a mother and daughter who were pedestrians. The dangerous driving was largely due to his excessive speed. The mother suffered serious and likely permanent injury to her leg. The offender was considered at low risk to re-offend and the court accepted that he accepted responsibility for his conduct.

The offender possessed a previous history of offences under the Highway Traffic Act , R.S.N.L. 1990, c. H-3 . [ 53 ] While there are similarities between O’Keefe and these circumstances, there are important distinguishing features. The injuries in O’Keefe do not reach the same magnitude as the present circumstances. Nor is the level of moral blameworthiness in the conduct as high. While the trial found the conduct was dangerous, it did not involve the deliberate conduct as was present in these circumstances. [ 54 ] These are examples of sentences that have been imposed for this kind of offence.

The precedents are helpful to an extent but, as can be seen, the circumstances of both the offence and the offender vary tremendously resulting in a wide range of what might be the “fit” sentence. THE FIT SENTENCE IN THE CIRCUMSTANCES [ 55 ] I accept that Mr. Steele-Young is a youthful first-time offender, and his expression of remorse for the harm suffered by Morgan Pardy at the sentencing hearing. On the other hand, his level of moral blameworthiness in driving as he did is high, and the harm suffered by Morgan Pardy as a result is severe. Indeed the harm is permanent. At trial Mr.

Steele-Young showed little insight into the dangerousness of his conduct. While there is no issue that he did not intend that Morgan Pardy suffered the injuries, his lack of insight into his conduct raises a legitimate concern that there must be an emphasis on both specific and general deterrence. [ 56 ] I am of the view that sentence of five and one-half months, as submitted by counsel for Mr. Steele-Young, does not adequately reflect the seriousness of the offence or the moral blameworthiness of Mr. Steele-Young.

It also does not give adequate effect to the principles of denunciation and specific deterrence in this case. [ 57 ] However, I cannot endorse the sentence of three and half years as recommended by the Crown, in these circumstances.

While the circumstances of the dangerous driving here are at the higher end of the spectrum, and the harm caused is perhaps near the highest end of the spectrum of seriousness without constituting a more serious offence, I cannot ignore the mitigating factors in these circumstances, which in my view, bring the sentence to a duration of less than requested by the Crown, but will still be significant. Apart from this event, Mr. Steele-Young has never been in trouble and is youthful. He has never served a period of imprisonment, and the principle of restraint must be applied.

As well, there are other tools available in this case to assist in protection of the public without the use of lengthy imprisonment, such as the driving prohibition, of which I will discuss below. [ 58 ] Further, in my view, a probation order is warranted in these circumstances. Mr. Steele-Young may benefit from educational programming as it relates to safe driving to gain insight into his conduct and attitude toward driving, as well as counselling for anger management.

His level of anger played a significant role in the commission of the offence, and he needs to address this if he wishes to avoid further involvement with the law.

As a first-time offender, in my view, applying the principle of restraint, I am inclined to facilitate the programming by way of the use of a probation order. [ 59 ] Given the above, and keeping in mind the level of seriousness of his conduct, his high level of moral blameworthiness, and the harm suffered by Morgan Pardy, and that I must not impose a sentence that is so severe it will crush his prospects of rehabilitation, the fit sentence in my view is two years imprisonment. In arriving at that sentence, I have paid close attention to all of the cases provided, and the principles of sentencing.

I find Hodder , Point , and Proulx provide particular support for the sentence I have imposed. ANCILLARY ORDERS [ 60 ] A driving prohibition is appropriate in the circumstances, as recommended by both counsel. As I stated in R. v. Rich , 2019 NLSC 37 , at paragraph 45 , a driving prohibition is a useful alternative to incarceration as a means of providing for the protection of the public, and to promote a sense of responsibility in an offender; particularly where these is confidence that the offender will abide by the order. Mr.

Steele-Young has been bound by Court Order since July of 2017 to not drive a motor vehicle, a period of just over 26 months, without issue. [ 61 ] Under Lacasse , it is appropriate to take in to account this period of time in determining the appropriate driving prohibition. For simplicity, I will reduce the driving prohibition I am to impose by 26 months. [ 62 ] Because of the seriousness of the offence, in particular the lack of insight of Mr. Steele-Young into his responsibility as evidenced at trial, the circumstances warrant a lengthy driving prohibition.

I am imposing a period of five years plus the period of imprisonment, but less the time already imposed, that is 26 months, for a further driving prohibition of 32 months (in addition to the two years imprisonment). [ 63 ] In order to facilitate his rehabilitation, in particular to address his issues with anger, and lack of insight as to the responsibility that attaches to operating a motor vehicle, I am also imposing a period of two years supervised probation to follow imprisonment.

The probation will include the usual statutory conditions, as well that he report to a probation officer upon release, and to attend such educational programs on prudent driving, and/or counselling as it relates to anger management as recommended by his probation officer. There will also be a no contact or communication condition with Morgan Pardy and to remain away from her place of residence,

schooling, or employment. [ 64 ] With the consent of defence counsel, I am further imposing an Order under

section 746.2 of the Code that Mr. Steele-Young have no contact or communication with Morgan Pardy while he serves his period of incarceration. [ 65 ] I am declining to impose a DNA Order in these circumstances. conclusion [ 66 ] For the offence of dangerous driving causing bodily harm, Joshua Steele-Young is sentenced as follows to: - Two years imprisonment; - 32-months driving prohibition plus his period of imprisonment; - two years supervised probation; and - to have no contact or communication with Morgan Pardy while serving his period of incarceration. [ 67 ] Judgment Accordingly. _____________________________ Frances J. Knickle Justice