Boys will be Boys? Street-Racing Drives-Up Sentencing in R. v. Field ABCA

Another Weekend Out-on-the-Town

Timmothy Field, an ordinary 18 year-old Calgary teen, was out partying with friends on a Friday night. They went to two clubs, and then went back to his residence where they were drinking and playing video games until 4am. He and his friends left early that Saturday morning at 8:30am with little sleep. They drove away in two cars (a 2003 black Nissan Maxima) driven by Timmothy and another car driven by a friend (an older model Nissan). They went to a McDonalds for breakfast and then headed to the mall. It really was a pretty ordinary morning for this group of teens, but it all changed in an instant.

At this point, the friends were near downtown Calgary at 10:30am on a Saturday morning along 1.5 km of a major thoroughfare. Using hand gestures and revved engines, the two cars decided to race. In an area with a 60 km/h speed limit, the racing cars reached an estimated speed of about 140 km/h, which was 80 km/h over the speed limit. Predictably, Timmothy lost control of his car and crashed head-on with a Jeep and then into both a Lexus and a Honda. A woman in one of the cars suffered severe injuries requiring on-going physiotherapy; the passenger in Field’s vehicle, a friend, had a dislocated shoulder (that the appeal judge thought the trial judge undermined) and had 35 stitches on his head. It is unclear from the judgment what Field’s injuries were, if any, but his biggest problem after the crash seems to have been the serious jail time he was now facing.

Driving Ban + Jail Time

Originally sentenced to 90 days in jail at trial, now in R. v. Field 2011 ABCA 48 (pdf link), the Crown seeks leave to appeal and appeals from the sentence imposed on the respondent following his guilty plea to two counts of dangerous driving causing bodily harm by street racing.

The ABCA allowed the Crown’s appeal and increased the sentence to 15 months in jail with no probation to follow, plus 200 hours of community service and a two-year prohibition on driving based on the Criminal Code of Canada (the “Criminal Code”).

The most interesting aspect of this judgment is the judge’s analysis of how much weight the respondent’s youth should be accorded in determining an appropriate sentence.

Speeding Away from Proportionality

At trial, the judge considered the pre-sentence report that described the respondent as a “hard worker both scholastically and in employment:”

He appears to be an able and intelligent young person. He has a good relationship with his family and is a solid wage earner. The report identified that in his younger years he did have some issues of truancy and also what are described as “serious mistakes in his past” when a younger teen. These circumstances, having regard to his age at the time, were not regarded as weighty by the trial judge.

However, the appeal judge remarked that the trial judge accorded deference to the “young adult with good prospects and no real need of conscriptive social control” and noted in this judgment that there are no indications the respondent holds a “generally anti-social attitude in need of stern punishment for correction.”

The Crown disagreed with the trial judge’s characterization of the offence as a “foolish decision,” “stupid” or “impulsive” act, describing this as a severe understatement. In the Crown’s view, this act was “thrill-seeking” by youths that was coloured by drinking the night before without adequate sleep and then knowingly engaging in a dangerous street race.

The Crown also took issue with the trial judge’s overemphasis on the youth of the respondent in a manner that was incongruent with the purpose of enacting street racing legislation:

Ordinarily, youthfulness of an offender is a significant matter, even intensely so at times. However, the Crown submits that available statistical information defines the class of offenders in street racing as largely males in their teens and early twenties. The Crown further argued that it was this particular demographic that was targeted by Parliament when the offence of street racing was enacted in the first place.

The appellate court agreed with this submission, ruling that the respondent was the precise demographic targeted by the legislature when they enacted this legislation. Accordingly, the trial court over-considered the issue of youth versus the weightier matter of the protecting the safety of law-abiding drivers from the “unexpected reckless conduct by other thrill seeking drivers.” In other words, the sentence disposition made by the trial judge failed to meet the fundamental principle of proportionality in section 718.1 of the Criminal Code.

In accepting the Crown’s argument, the appeal judge went on to comment that driving is a privilege, not a right:

Driving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion. Street racing is entirely avoidable. There is no need for it to ever happen.

Accordingly, the ABCA held a high degree of moral blameworthiness on the offender regardless of his youth by raising the sentence with regard to the objectives of denunciation and deterrence.

Putting the Brakes on the Youth Factor

I agree with the judge’s decision, but it raises further questions about how much weight should be accorded to contextual factors related to the characterization of street racing: What if the driver was not an otherwise law-abiding male youth? What other contextual factors would matter? At what point should the judge take a strict interpretative approach to the legislation? As I argued in my coverage here of R. v. Paul (2011) BCCA 46, I think that context plays a role in some criminal cases more than others and proper weighing of such contextual factor depends on a delicate interplay between the facts and the law – oftentimes tinged with societal assumptions and a tad of politics.

These provisions relating to street racing crimes have been faced with controversy ever since street racing legislation amending the Criminal Code came into force in Canada in 2006. For instance, Ontario’s provincial Highway Traffic Act addressing street racing was subject to a constitutional challenge in 2009. Moreover, there have been some concerns about the difficulty of drawing a precise line between fast driving and actual street racing, which was not an issue in this case.

This case shows that not all street racing occurs in the middle the night on isolated back roads among individuals belonging to a particular subculture of sports car enthusiasts. Here it occurred in broad daylight in a busy downtown core with young drivers willing to show-off the speed of their average suburban cars. While this legislation has been targeted at a particular demographic, it is also open to broader interpretation by applying it all drivers who knowingly take that extra criminal step.