



COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. Lewis, 2021 ONCA 597

DATE: 20210902

DOCKET: C68740

Paciocco, Nordheimer and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Lewis

Appellant

Jeff Marshman, for the appellant

Samuel Greene, for the respondent

Heard: August 31, 2021 by videoconference

On appeal from the sentences
    imposed on July 23, 2020 by Justice Bernd E. Zabel of the Ontario Court of
    Justice.

REASONS FOR
    DECISION

[1]

Mr. Lewis seeks leave to appeal the total sentence of eight years imposed
    on him following on his convictions for impaired driving causing death,
    criminal negligence causing death, and failing to comply with probation. At the
    conclusion of the hearing, we granted leave but dismissed the appeal for
    reasons to follow. We now provide our reasons.

[2]

The appellant was convicted of the offences arising out of an instance
    of street racing. His co-accused, who was also involved and was also convicted
    of related offences, was sentenced to a total of five years.

[3]

The appellant was involved in street racing on a road in Hamilton during
    a weekday rush hour. He and his co-accused were observed driving side by side
    at speeds up to 130 kph, making unsafe lane changes, and tailgating one another.
    The posted speed limit on the road was 50 kph.

[4]

Very unfortunately, a 25-year-old woman was driving out of a parking lot
    onto the road when she was struck by the appellants vehicle. The woman died
    from the injuries that she sustained in the collision.

[5]

A toxicologist testified that, from readings obtained from both blood
    and breath samples, the appellants blood alcohol concentration was between 83
    mg and 113 mg of alcohol per 100 ml of blood at the time of the collision. Her
    evidence was consistent with the physical observations of the appellant after
    the collision, including that his eyes were bloodshot and glassy and there was
    a strong odour of alcohol on his breath.

[6]

The appellant raises three issues regarding the sentence imposed. First,
    he complains that the trial judge did not give him any credit for the
    conditions under which he was incarcerated for a period of time prior to trial.
    Second, he complains that the trial judge did not give him any credit for the
    time he spent on house arrest bail. Third, he says that the trial judge failed
    to apply the principle of parity given the disparity in the sentence imposed on
    the appellant compared to the sentence imposed on his co-accused.

[7]

We do not accept any of these grounds. On the first ground, the trial
    judge did give the appellant some enhanced credit for the conditions that arose
    from the COVID-19 pandemic. The appellant complains that he should have
    received more credit, yet the appellant did not lead any evidence of any
    particular impact from the pre-trial incarceration conditions. Without evidence
    of exceptionally punitive conditions, the appellant was not entitled to any
    further credit
: R. v. Marshall
, 2021 ONCA 344 at para. 50.

[8]

On the second ground, the appellant also did not lead any evidence as to
    the impact of the bail conditions on him. While the appellant was under house
    arrest, he was allowed to leave his house in the presence of a surety. We agree
    with the respondent that, depending on the lifestyle of the accused and the
    nature of their relationship with their surety, this form of house arrest may
    not operate in a harsh or punitive manner sufficient to warrant credit. Later,
    when the appellant obtained a job, he was also allowed to leave his house alone
    for employment purposes. While it would have been preferable if the trial judge
    had directly addressed this issue, his failure to do so only warrants appellate
    intervention if it appears from the trial judges decision that such failure
    had an impact on the sentence imposed:
R. v. Adamson
, 2018 ONCA 678,
    at para. 108. We are not satisfied that is the case here, both because of the
    absence of case specific evidence and the reasons we provide regarding the
    parity principle.

[9]

On the third ground of appeal, we do not find any failure to apply the
    parity principle. There were significant differences in the surrounding
    circumstances of the appellant and his co-accused. In particular, the appellant
    was impaired by alcohol. There was no evidence that his co-accused was also
    impaired. Further, the appellant had longer and more aggravating criminal and
    driving records. Still further, unlike his co-accused, the appellant was on
    probation for a prior set of offences at the time that these offences were committed.

[10]

The
    parity principle does not require that co-accused must be subject to the same
    sentence. To the contrary, different sentences do not violate the parity
    principle if differences in the surrounding circumstances justify the
    difference. In this case, they clearly did. Given the dangerous acts of the
    appellant, his impaired condition, his prior criminal and driving records, and
    the horrific consequences of his acts, a mid-range penitentiary term of
    imprisonment was entirely justified.

[11]

It
    is for these reasons that, while we granted leave to appeal the sentences, the
    appeal was dismissed.

David M. Paciocco
    J.A.
I.V.B. Nordheimer J.A.
S. Coroza J.A.


