Failing to Provide the Necessary Jury Instruction

Ezekiel was 18months old when he fell ill. His daycare contacted his parents. His symptoms included fever, lack of appetite and trouble breathing. Both parents were concerned. Neither sought medical attention for their child. Instead they contacted a family friend, a nurse, by phone. They had her listen to Ezekiel’s breathing over the phone and the friend suggested that the child might have croup. Over the next several days Ezekiel got much worse. No medical attention was sought. The parents ‘treated’ Ezekiel with a number of naturopathic remedies. The nurse friend suggested that Ezekiel had meningitis and recommended that a doctor be consulted. The parents did no such thing. Instead the mother took to the internet and concluded that her child had viral meningitis not the more serious bacterial meningitis. A receptionist at the naturopathic clinic told the parents to bring their child to a doctor. The parents did no such thing. Instead their child stopped breathing at home about a week after his first symptoms appeared. It was only after Ezekiel had been revived by his father that  his parents called 911. He was resuscitated again by paramedics but never regained consciousness and died 5 days later.

Both parents were charged with failing to provide the necessaries of life. A jury found them guilty. They appealed to the Alberta Court of Appeal. The majority of the appellate court dismissed the appeal: 2017 ABCA 380. Justice O’Ferrall, however dissented and would have granted the appeal. A unanimous Supreme Court of Canada agreed with Justice O’Ferrall and ordered a new trial: 2018 SCC 21.

On appeal the Stephans argued that the trial judge erred:

  • by failing to limit the expert evidence called by the Crown
  • by limiting the defence expert evidence
  • by failing to qualify the accused father as an expert
  • in rejecting the accuseds’ 11b motion; and finally
  • in a number of ways in the instructions to the jury

Only one gained any traction with Justice O’Ferrell and ultimately the Supreme Court; this was with respect to the trial judge’s charge to the jury.

Justice O’Ferrell concluded that:

the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.
(…)
The instructions tended to give the impression this was a strict liability offence. That is, if a parent does not take his or her sick child to the doctor and the child dies, the parent is guilty of failing to provide the necessaries of life. Even in strict liability regulatory offences, due diligence is a consideration. Section 215 has been interpreted to require objective fault, but such fault must be assessed in terms of the reasonableness of the accused’s conduct. @213-214.

The Supreme Court held that the “learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.” @2.

Of note, defence had no objection to the charge at the time of trial (ABCA @84). Though certainly not determinative the absence of such an objection is sometimes a helpful way for appellate courts to get the pulse of the charge in the context of the trial, but, as this case illustrates, is not always determinative.

LT

Fit for the Pen

Inksetter had one of the largest and worst collections of child pornography that the Ottawa Police Services had ever uncovered. He was found guilty of both possessing child pornography and making it available. Police identified some 28,052 unique images and 1,144 unique videos. The investigation was halted at this point even though 1.2million other images and 40,000 other videos remained to be categorized.

At the sentencing hearing Detective Carr testified that Inksetter’s collection was among the top one or two most difficult collections she had ever had to review. About 95% of the material depicted explicit sexual activity. The youngest of the victims were around a year old. The folders were user organized and labelled commensurate with their contents. Some of the material was downloaded and remained in a shared folder available to others.

At the time of his sentencing Inksetter was 51years old and had no criminal record. The Crown sought a sentence of 4.5years. Defence sought a term of 1year imprisonment followed by probation. The sentencing judge imposed a term of two years less a day followed by three years probation. The Crown appealed. The Court of Appeal agreed that the sentence was unfit: 2018 ONCA 474

First, the appellate court noted that s718.01 makes clear that denunciation and deterrence are primary considerations for any offences involving the abuse of a child.

Second, the Court reminded everyone that probation is traditionally a rehabilitative tool and does not seek to “serve the need for denunciation or general deterrence” @18. The Court of Appeal soundly rejected Inksetter’s argument that probation could fulfill the principles of denunciation and deterrence. The Court framed the argument this way:

The respondent argues that, in this case, probation assists in filling the need for denunciation and general deterrence because the probation order includes a term requiring him to agree to provide access to his electronic devices to the Ottawa Police Service upon demand for the purpose of searching for material related to child pornography before using the internet. The respondent says that this term, which was included as a workable alternative to a blanket prohibition on internet use, permits a significant interference with his privacy rights. @19

The Court held:

I reject this argument. As I indicate above, it is clear from the trial judge’s reasons that his objective in imposing a long period of probation was not denunciation and general deterrence. Moreover, I do not accept that the possibility that such a term might be imposed in a probation order, and that, if imposed, police might search an individual’s electronic devices, serves as a general deterrent or that its imposition meets the objective of denunciation. @20

The Court of Appeal then set about determining a fit sentence. In so doing they noted the following.

First, over the past decade Parliament has increased the legislated range of sentence for these types of offences. @23

Second, as technology becomes increasingly sophisticated the prevalence of child pornography related offences is on the rise. @25

Third, making child pornography available warrants a longer sentence than possession of child pornography. @27

The Court concluded that a sentence of 3years for possession of child pornography and a sentence of 3.5years for making child pornography to be served concurrently was a fit sentence. @28

LT

Harm without Physical Contact

Walters was designated a dangerous offender and given a determinate sentence of 5 years (3year presentence custody) and a 10 year long term supervision order. Walters appealed both the designation and the custodial sentence. The appeal failed: R v Walters, 2018 ONCA 391.

The predicate offence was a single count of criminal harassment. Walters emerged “from the bushes in the dark, on a lonely street. He was close enough that the complainant could feel his breath. He was masturbating as he followed her.” @6

On appeal Walters first disputed that the criminal harassment conviction qualified as a serious personal injury offence. And, second argued that the sentencing judge erred in concluding that the necessary statutory pattern had been established for the purposes of the dangerous offender designation.

With respect to the offence of criminal harassment as a serious personal injury offence [SPIO] the sentencing judge found that:

the offence was not “violent in the usual way”, because there was no physical touching, she concluded that it was “physically and psychologically violent in all other circumstances”. @5

This finding was predicated on the trial judge’s factual finding that the complainant sustained severe psychological damage. This finding was based on the judge’s acceptance of the victim’s evidence including the fact that:

she panicked, was scared and terrified, could no longer go out without fear, and now hears footsteps when she is outside. As she said, her “life flashed before [her] eyes … not knowing if [she] would be seriously harmed or killed”. She maintained in her victim impact statement that the crime had changed her. @6

The Court of Appeal found the record to amply support these findings.

With respect to the requisite statutory pattern Walters argued that “the nature of his prior conduct [fell] largely at the lower end of seriousness for sexual and other violent misconduct” @8. Walters maintained that his prior criminal history was more along the lines of indecent exposure types of offences and that there was no evidence of severe psychological harm from prior victims.

The Court of Appeal held that the sentencing judge properly considered a variety of factors including:

  1. The expert evidence including the assessment as to the future likelihood of severe psychological damage; and

  2. The appellant’s prior record of 15 sexual offences and 19 prior non-sexual offences and 21 breaches of court orders

Moreover, the Court concluded that:

trial judge properly approached her task of sentencing the appellant, after he had been found a dangerous offender, in a manner that emphasized the least intrusive sentence required to achieve the primary purpose of the statutory scheme: R. v. Boutilier, 2017 SCC  64, [2017] 2 S.C.R. 936, at para. 60. In particular, the trial judge had regard to the need for the appellant to be in a penitentiary setting in order to access necessary “high intensity sexual assault programs”. The trial judge determined this to be necessary treatment to address the significant threat posed by the appellant to the community. @13

The decision of the ONCA in Walters, particularly with respect to the SPIO is in line with recent jurisprudence from that Court.

In 2016 the ONCA found that a sexual assault was made out where an accused broke into a young woman’s home and forced her to watch him masturbate. The victim, fearing for her safety, fled her home by leaping from her balcony some 12 feet from the ground: R v Edgar, 2016 ONCA 120.

The decision in Walters is consistent with Edgar in that the violation of someone’s sexual integrity can occur even in the absence of physical contact. Although Walters was charged with criminal harassment the findings made by the sentencing judge and the Appellate Court clearly demonstrated it was considered as part of a pattern of sexual offences which had a profound impact on the victim. 

LT

No Discretion to Circumvent

Judge (2).jpg

Do sentencing judges have the discretion to impose concurrent victim surcharges [VS]? The Ontario Court of Appeal unanimously says no. In short, the Court held that “there is no discretion in the court to circumvent this automatic imposition [of the VS] by ordering concurrent victim surcharges.” [Fedele @1]

The Ontario Court of Appeal released the decision in Fedele, 2017 ONCA 554 on the same day that it unanimously upheld the constitutionality of the surcharge: Tinker, 2017 ONCA 552. 

Fedele stole a wheel of cheese and a pack of razor blades. He plead guilty. A pre-sentence report revealed that Fedele was supported by the Ontario Disability Support Program. He was sentenced to five days in jail and 18months probation. The sentencing judge ordered that the victim surcharge of 100$ per conviction be applied concurrently.

The Crown appeal to the Superior Court was dismissed. 

The Summary Conviction Appeal court analogized the VS to a DNA order, in other words, “one order will suffice even where there are multiple convictions” [@9]

The Court disagreed and held that:

the legislative text and legislative history of s. 737 make it clear that victim surcharges are to be imposed for each and every offence and as is the case with fines, there is no judicial discretion in a court to impose victim surcharges concurrently. [@13]

First, the court noted that while

[i]t is true that s. 737 does not remove the discretion to impose victim surcharges concurrently or consecutively, this misses the point. The proper question to ask is whether such a discretion exists. In my view, it does not. [@32]

Second, the Court explained that the terms concurrent and consecutive do not apply to monetary amounts:

[c]oncurrent and consecutive are concepts that apply to periods of time. There can be concurrent sentences of incarceration or concurrent prohibitions on driving. Fines and surcharges are not punishments which are measured in time – they are measured in amounts of money. [@34]

In short, there is no discretion to circumvent the VS.  

LT

You are not the Reasonable Person

Berry was charged with the first degree murder of Andrew Christie. Berry testified in his own defence. He admitted to shooting Christie but said he did so in self-defence. Alternatively, he argued provocation.

The jury convicted Berry of second degree murder and the judge set his parole ineligibility of 17years. Berry appealed conviction and sentence- both were dismissed: 2017 ONCA 17.

One of the grounds of appeal related to the trial judge’s instruction on the defences of self-defence and provocation.

As part of his defence Berry called Dr Pollock, a psychologist who testified about Berry’s “reduced cognitive abilities and his personality traits.” [@25]

Dr. Pollock testified that he was of “modest intelligence”, with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock’s opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant’s profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress. [@25]

With respect to self-defence the trial judge agreed “to charge the jurors were entitled to consider both the appellant’s diminished intelligence and his psychological makeup on the issue of his subjective state of mind” @68. However, with respect to the objective component of the test the judge instructed the jury that they could only consider Berry’s “diminished intelligence but not his psychological makeup.” [@68]

The Court found no error in this decision. From an evidentiary perspective, the Court held that Dr Pollock’s evidence did not establish:

a sufficient causal connection between the appellant’s “border-line IQ”/“modest intelligence” (5th percentile), and the appellant’s personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others). [@71]

In this case, Berry’s psychological makeup was not attributable to anything beyond his control and as such had no place in the objective component of the self-defence inquiry. Did Berry believe that he had no choice but to shoot the victim and was that belief objectively reasonable? @73  Permitting Berry to rely on the evidence of his psychological makeup as an explanation for his actions would improperly conflate the subjective and objective components of the test. [@73]

The Court reached a similar conclusion with respect to the defence of provocation. The test on the defene of provocation has both a subjective and objective component.

First, was the wrongful act or insult of such a nature to deprive an ordinary person of the power of self-control.

Second, did the accused act on that insult, suddenly, before any time for passion to cool.

The Court summarized the trial judge’s instructions as follows:

In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant’s passion had time to cool – the trial judge told the jurors they could consider the appellant’s individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so. [@78]

In finding that the trial judge had not erred the Court referenced Charron J’s decision in R v Tran, 2010 SCC 58 where Her Honour held that: 

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [@83]

Although the Court in Berry leaves open the possibility that diminished mental capacity could be relevant to the ordinary person inquiry in the provocation analysis [@84] for now the court says that you and the reasonable person are not one and the same.

LT

Settled Law

Lam was convicted of driving with an illegal blood alcohol concentration [BAC] – he was over 80. This was his second trial.  The Crown sought to invoke the presumption of identity and attempted to file the certificate of analysis as evidence of Lam’s BAC at the time of driving. The defence opposed the filing of the certificate and argued that the failure of the police to have the approved instrument inspected in accordance with the Alcohol Test Committee’s [ATC] recommendations was fatal to the Crown’s case.

The trial judge accepted this argument and found that the police failure to send the Approved Instrument for annual inspection for 13 months constituted evidence which tended to show that the instrument was operated improperly. The accused was acquitted. The Crown appealed.

The Summary Conviction Appeal [SCA] judge held that the trial judge erred and ordered a new trial. In particular, the SCA found that:

elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s258(1)(c) was not engaged and thus could not be invoked to establish the application’s blood alcohol concentration when he was operating his motor vehicle [@6]

Lam appealed to the Court of Appeal. The Court refused to hear the appeal: 2016 ONCA 850

The Court did so for four reasons.

First, leave from summary conviction proceedings are exceptional. Moreover, there is a need for finality. When all is said and done Lam will have had 2 trials, 2 summary conviction appeals and this journey to the Court of Appeal. [@12]

Second, the grounds of appeal are a mix of law and fact. With respect to the law it concerns only “the application of well-settled principles of law in no need of restatement or refinement” [@13]

With respect to the misapprehension of facts, the facts in this case as so many others, rarely “transcend the idiosyncrasies of the case at hand” [@13]

Third:

invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

Fourth, the substantive issue is in fact well settled law: See St-Onge-Lamoureux, 2012 SCC 57 "(not Jackson, 2015 ONCA 832 as the respondent suggests)" [@15].

LT

Now or Never

Just after midnight in late October 2014 police came across Pociurko standing about 3 metres from his motor vehicle which had obviously just been in an accident. Mrs Pociurko and the couple’s child were also on scene and standing some 10-15meters from the car.

When police spoke with Pociurko he admitted to drinking but denied driving. Mrs Pociurko gave lots of different answers to the question of who was driving. Sometimes she said she was driving, other times her husband, sometimes she said both were driving. Finally she asserted that the accident was as a result of a mechanical failure. None of these versions had any impact on the officer’s legally authority to demand a sample of Pociurko’s breath.

The officer made just such a breath demand of Pociurko who asserted that because he was not the driver he would not blow. The officer let Pociurko know the consequence for refusing to provide a sample. Pociurko again refused and pulled out his cell phone. He told the officer he was calling his lawyer. The officer took the cell phone and placed Pociurko under arrest.

He was convicted at trial of refusing to provide a breath sample. He appealed, unsuccessfully: 2016 ONSC 6691

On appeal Pociurko argued that his refusal was equivocal because he was confused about his obligations. He further argued that his confusion and equivocation was apparent as he was trying to call his lawyer when he was so rudely interrupted by the police. The summary conviction appeal judge disagreed.

Richetti J held that the evidence did not support the defence assertion of confusion. In fact, to the contrary Richetti J found that there was “no confusion about the demand for a breath sample and there was no confusion about Mr Pociurko’s refusal to provide it promptly.” [@24]

Moreover, there is no obligation on police to explain the law. In other words, police did not have to explain to Pociurko that neither his claim of not being the driver nor his desire to speak with a lawyer were reasonable excuses for refusing . The summary conviction appeal judge gave short shrift to the defence assertion that such an obligation exists, instead finding that:

Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail [@25]

In short, any version of ‘maybe I will later’ in response to a breath demand “constitutes a refusal since it is not providing a breath sample promptly” [@21]

LT

Realistically Dangerous

At 5:20am Balogun-Jubril [hereafter BJ] like a lot of folks was sound asleep. Unlike other folks though BJ was not tucked snugly into his bed. BJ was in the driver’s seat of his car. The car was off, the transmission was in park but the key was in the ignition. Most peculiar however was the location of BJ’s car. He was stopped in a lane of an exit ramp on a provincial highway. The location of the vehicle and BJ’s deep sleep caught the attention of both the Ministry of Transportation and police. Once conscious BJ exhibited what officers described as significant signs of impairment.

At 6:41am BJ provided his first of two breath samples which confirmed what the officers suspected – BJ’s blood alcohol concentration was well over the legal limit at 150mg of alcohol per 100ml of blood. BJ was charged with driving over the legal limit and impaired driving.

At trial BJ testified. He claimed that at 2:45am as he was driving his car stopped working. A mechanic testified that the vehicle was inoperable, as the oil had leaked causing the engine to seize.

The trial judge found that BJ was not operating the vehicle while impaired but was in care and control of the vehicle. The trial judge then concluded that BJ had “not engaged in an intentional course of conduct that had created a realistic risk of danger.” As a result she acquitted BJ of both charges.

The Crown successfully appealed to the summary conviction appeal court. The summary conviction appeal court held:

that the trial judge committed a palpable and overriding factual error in concluding that there was no realistic risk of danger to persons or property when the police arrived on the scene. Noting the "low threshold" of establishing that the conduct of the accused in relation to his motor vehicle created a realistic risk of danger to public safety, the appeal judge set aside the trial judge's decision and registered convictions on both counts against the appellant.  @para 5

At the Court of Appeal BJ advanced two grounds of appeal: 2016 ONCA 199. First, that the summary conviction appeal judge “was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact.”

Second, even if the appellate judge was entitled to interfere with the trial judge’s finding, “the risk identified by the appeal judge is properly characterized as ‘theoretical’ and not ‘realistic’.” @para 6

With respect to the first ground the Court of Appeal held that the trial judge embarked upon the wrong inquiry. The trial judge framed her conclusion as follows BJ had done "all that could be done to reduce the risk".

That of course is not the correct or even “pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.” @para 12

Juriansz JA writing for a unanimous Court held that:

given the incorrect analysis of the trial judge, the appeal judge was entitled to interfere with her conclusion and to find that the risk was realistic, and not merely theoretical. On the facts found by the trial judge, I would conclude that he was correct in doing so.
While the application of the standard of review is a question of law, this proposed argument has no merit and cannot provide a basis for leave to appeal.  @paras 13-14

On the second ground the Court held that whether the risk was realistic or theoretical is not a question of pure law and therefore could not be advanced on appeal. @para 16

The ONCA refused leave to appeal. @para 17

Although impaired and over 80 cases are some of the most demanding offences to prove from an evidentiary perspective as is clear from the various rulings in the present case, the outcome here is one of pure and simple common sense.

BJ was in the driver’s seat of his car. The car was in a lane on a ramp on a highway. The key was in the ignition. There can be no question that such a vehicle poses a risk of danger to other motorists. Further exacerbating this risk was the fact that BJ was impaired by alcohol and his blood alcohol concentration was nearly twice the legal limit. Nothing other than realistically dangerous about that

LT

Some is all you need

Webster was accused of committing offences against is former domestic partner. At the preliminary inquiry the now ex-partner testified via closed circuit television in a sequestration suite designed to allow witnesses to testify outside of the presence of accused.

She testified that she knew Webster, had been engaged to him and that they resided at the address specified in the information before the court.

The complainant was not asked to identify Webster nor from the sequestration suite would she have been able to do so.

At the conclusion of the preliminary hearing the defence argued that the accused should be discharged as the crown had failed to adduce some evidence that the accused before the court was the person who committed the offences.

The preliminary hearing judge discharged the accused. The Crown successfully sought the extraordinary remedies of certiorari and mandamus. Webster appealed to the Court of Appeal seeking to have the discharge reinstated. That appeal was dismissed: 2016 ONCA 189.

In a brief endorsement the Court reminded us that:

It is well settled that the identity of names a complainant identifies as her assailant and the person charged constitutes some evidence of identity. It is all the more so, when the name is accompanied by an address and other biographical details: R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; and R. v. B.(D.), [2007] O.J. No. 1893 (C.A.), at para. 1.

The Court agreed with the certiorari judge that preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the evidence and in particular the identity of names as some evidence of identity.  [at para 6]

LT

Tried to go to rehab; ONCA said no, no, no

Clouthier’s blood alcohol was over the legal limit; he drove anyway. He drove badly and dangerously. Clouthier rear-ended another motorist as he approached an intersection; he fled from the accident. He did so by reversing over the median and heading into a residential area. There he rear-ended a second vehicle. He fled from that accident too- accelerating away at speeds over 100km/hr. He collided head on with another vehicle. One of the passengers of that third vehicle sustained serious injuries and need emergency surgery. Clouthier climbed out of the window of his truck and tried to run away. Witnesses captured him and held him until police arrived.

Clouthier plead guilty to impaired operation causing bodily harm, dangerous operation causing bodily harm and two counts of failing to stop at the scene of an accident.

He was remorseful. He took steps prior to sentencing to address his addictions and depression. By the time of sentencing he was gainfully employed.

Clouthier sought a suspended sentence or alternatively that he be sentenced to 90days and be permitted to serve the time on weekends.

The Crown argued for a sentence of 12months incarceration followed by probation.

The sentencing judge decided that a period of 5months in custody was the appropriate sentence, however she offered Clouthier the opportunity to serve the sentence in two intermittent installments. Clouthier accepted. He served 90days intermittently and then returned to court months later to be sentenced to a further 60days intermittent sentence.

The Crown appealed arguing that the imposition of consecutive intermittent sentences was illegal and that the sentence was manifestly unfit. The Ontario Court of Appeal agreed: 2016 ONCA 197.

Watt JA writing for the Court held:

What happened here was that, by imposing intermittent sentences at different times, the trial judge did indirectly what she could not have done directly without breaching the 90-day limit in s. 732(1) of the Criminal Code. The result is an effective sentence that defeated the very object of s. 732(1) and disregarded the correctional principles that it was meant to serve. [@para 38]

With respect to the fitness of the sentence the Court held that the five month sentence imposed “fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation, and protection of the public.” [@para 58]

Moreover the Court noted that it was an error not to have imposed consecutive sentences for the two counts of failing to stop at the scene. Although the sentences for failing to stop could have been made concurrent to each other to give effect to the principle of totality “they should have been made consecutive to the sentences for the dangerous and impaired offences.” [@para 60]

The Court held that the appropriate sentence in this case would have been 15-18months followed by a 12 month period of probation. This is so notwithstanding the positive rehabilitative steps Clouthier took to address his addictions.

In deciding whether to reincarcerate the offender the Court explained that:

These were serious offences that demonstrated a complete disregard for the lives and safety of others lawfully using the streets of an urban area on a summer evening. Repeated flights from the scenes of the accidents displayed a callous indifference to fellow motorists. No undue delay has occurred between service of the sentence and the hearing and determination of the sentence appeal. Despite the respondent’s remorse and significant rehabilitative steps, I see no reason to stay the operation of the sentence I consider appropriate in this case. [@para 64]

The ONCA ordered Clouthier to surrender himself within 72hours to serve a further 9months in custody.

Active efforts at rehabilitation are an important consideration at sentencing however they cannot displace the predominant sentencing objectives of deterrence, denunciation and protection of the public. As Watt JA held, those efforts are what make the appropriate range 15-18months “were it not for these positive attributes, a fit sentence would involve a more lengthy period of incarceration.” [@para 61]