



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Currie, 2018 ONCA 218

DATE: 20180306

DOCKET: C63740

Strathy C.J.O., Simmons and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hunter Currie

Appellant

Mark Halfyard, for the appellant

Dena Bonnet, for the respondent

Heard: February 28, 2018

On appeal from the sentence imposed on April 12, 2017 by
    Justice Alexander D. Kurke of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The
    appellant pleaded guilty to two counts of dangerous driving causing bodily harm.
    He was sentenced to concurrent sentences of 18 months imprisonment, plus two
    years probation and was prohibited from driving for four years. He seeks leave
    to appeal sentence.

[2]

The
    appellant fell asleep at the wheel of his car around 4 oclock in the afternoon
    on November 22, 2014, on a busy highway in the Sudbury area. He was travelling
    80 kilometers per hour in a 60 kilometer zone. He crossed the centre line and
    ran into the victims car. The victims, a mother and a daughter, suffered
    grievous injuries.

[3]

The
    appellant attempted to dispose of a bag of marijuana after the accident. Drug
    paraphernalia was found in his car. Police observed a smell of alcohol on his
    breath.

[4]

A
    read back by a toxicologist estimated that the appellants blood/alcohol
    content at the time of the accident was between 40 and 90 milligrams in 100
    millilitres of blood. A drug recognition evaluation performed at 8:30 p.m.
    revealed that the appellant was under the influence of cannabis at that time.
    Urine testing revealed the presence of marijuana, cocaine and fentanyl.

[5]

Facts
    admitted on the guilty plea included that:

·

the presence of cocaine in the appellants system was suggestive
    of a recent large dose or a binge dose over a period of days; and

·

while cocaine initially stimulates the body when consumed, it can
    cause a crash phase as the effects wear off, causing sleepiness, among other
    things.

[6]

The
    appellant was a nineteen year old novice driver at the time of the accident. He
    held a G2 licence and was prohibited from driving with alcohol in his body.

[7]

The
    appellant submits that the sentence of 18 months was demonstrably unfit and a
    marked departure from the range in cases such as this. He asserts that the
    sentencing judge made four errors that contributed to an unfit sentence.

[8]

First,
    he submits that the sentencing judge erred in finding the fact that the
    cocktail of drugs [in the appellants system], combined with the alcohol,
contributed
to his inability to stay awake and directly
    contributed to the dangerous driving [emphasis added]. He submits that this
    error caused the sentencing judge to impose a sentence that was outside the
    range for cases of dangerous driving in the absence of impairment.

[9]

We
    do not accept this submission. As a matter of common sense, it is self-evident
    that the combination of drugs and alcohol consumed by the appellant
    contributed, at the very least, to the appellant falling asleep while driving
    in the middle of the afternoon. This is entirely consistent with the admitted
    connection between cocaine use and sleepiness and the admission that the
    appellants urine levels indicated either a large dose or a binge dose over
    several days.

[10]

Second, the appellant
    asserts that the sentencing judge erred in relying on the presence of drug
    paraphernalia in the appellants car as an aggravating factor, as it reflected
    nothing more than bad character. We disagree. The sentencing judge was entitled
    to refer to this factor as supporting the evidence that the appellant had been
    consuming drugs and as evidence of his irresponsibility.

[11]

Third, the appellant
    argues that the sentencing judge erred in imposing a sentence on a youthful
    first offender in order to send a message of deterrence to the community. We do
    not accept this.

[12]

This was a serious
    accident that will have devastating lifelong physical and psychological impacts
    on its victims. The appellants counsel on sentencing acknowledged that
    specific and general deterrence would play a role in the sentence. This offence
    is frequently committed by first-time offenders and young persons, like the
    appellant, of otherwise good character. Particularly because of this factor, it
    is essential that courts send a message to young people, to protect both them
    and the public from the serious consequences of such conduct. Denunciation and
    deterrence must be a paramount consideration.

[13]

It bears repeating
    that as a G2 driver, the appellant was not permitted to have
any
alcohol in his system.

[14]

Finally, the appellant
    points to other cases in which lower sentences have been imposed and submits
    that the sentence was unfit for this offence and for this offender.

[15]

We disagree. The
    appellant acknowledges that the range in cases of this kind extends up to two
    years less a day. See
R. v. Rawn
, 2012 ONCA 487, at paras. 43-44.
    Here, the trial judge considered the relevant authorities and sentencing
    principles, the victim impact statements, a positive pre-sentence report and
    many mitigating factors. He concluded that the presence of drugs and alcohol in
    the appellants system, his status as a novice driver who should not have been
    driving with alcohol or drugs in his body, and the catastrophic consequences of
    the accident demanded a significant sentence.

[16]

We see no error in
    principle in this reasoning. Nor is the sentence unfit.

[17]

Leave to appeal is
    granted, but the appeal is dismissed.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.


