Court of Appeal decision underscores significance of obeying police instruction

Law360 Canada (July 25, 2024, 3:06 PM EDT) --

John L. Hill

On March 23, 2017, the Canadian Press reported that Angel McCool, then a 30-year-old Stratford woman, was charged with obstruction of police after her GMC utility vehicle was stopped on Highway 401 in Thames Centre, Ont.

The obstruction charge resulted from her providing false information about her identity. The police also charged her with possession of methamphetamine and cannabis resin. She was on probation when charged and remained in custody until trial.

Then, on July 2, 2021, at 1:00 a.m., she led police on a dangerous high-speed chase. McCool was arrested after crashing her car into a ditch. On this occasion, she was charged with dangerous operation of a motor vehicle and flight from police. She was also accused of provincial offences, such as driving while suspended and stunt driving. On this occasion, the Ontario Court of Justice imposed a global sentence of six months in custody followed by 18 months of probation. The Crown appealed the sentence on the Criminal Code offences as reflecting an error in principle and that the sentence was demonstrably unfit.

A unanimous judgment of the Ontario Court of Appeal handed down its decision on June 10, 2024. (R. v. McCool, 2024 ONCA 457)

There could be little dispute that she was aware of her wrongdoing. Const. Moore was on patrol in a police cruiser and spotted McCool’s car outside a residence “known to police.” The car’s licence was registered to McCool. Officer Moore was familiar with her as he had arrested her within the previous year for driving while suspended. When Moore saw McCool leave the residence, he activated the roof lights. As he approached the car and placed his arm on the driver’s window, he said, “Angel, you are not supposed to be driving.” McCool placed the vehicle in reverse. Moore’s arm became entangled in the seat belt; he was thrown to the ground and dragged about 100 feet.

Const. Moore was not seriously injured and was able to call for assistance. Eventually, those officers were able to bring the McCool car to a stop. She refused to exit the vehicle and had to be physically removed.

Even though appellate courts owe great deference to trial judges when sentences are imposed, the Court of Appeal should have intervened in this case because the trial judge erred in principle and imposed a demonstrably unfit sentence. (R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020SCC 9)

The error in principle was that the trial judge had mischaracterized her criminal record as “unrelated.” He believed her most extended period of incarceration was in 2017 when she received a sentence of four months. The trial judge failed to consider a punishment levied in 2019 of 18 months (two months for failing to attend court and 16 months for drug possession). On another occasion in 2017, she was sentenced to another six-month term. The trial judge erred in assessing the six-month penalty as increasing her longest term of four months in custody by an additional two months.

Rather than having unrelated previous convictions, the Court of Appeal held that her previous convictions involved defying authority and failing to abide by court orders and directions.

The six-month sentence imposed in 2023 was also demonstrably unfit since it departed from the principle of proportionality. Considering the gravity of the offence, it called for a penitentiary term.

The fact that no one was seriously injured does not detract from the gravity of McCool’s conduct. Courts have never condoned the grave risk of harm in flights from police. (R. v. S.K., 2019 ONCA 776; R. v. A.M., 2023 ABKB 563; R. v. Jiwa, 2012 ONCA 532)

McCool should not have been the beneficiary of mitigation in sentence. Her admission of some aspects of the offence came too late to shorten the trial; she has not shown remorse or insight and was not unduly inconvenienced by a curfew.

McCool, who is now 36, experienced hardship as a child and was taken into care by CAS. She also is grieving the loss of her father, uncle and brother. Nonetheless, these losses do not excuse her repeated conduct that endangers others. The court imposed a further 18 months less a day on top of the six months in custody already served.

The Court of Appeal has shown us that it will not tolerate flouting police direction. There are legally available mechanisms to challenge authority. Allowing such irresponsible behaviour to go unpunished or with undue leniency would be a tear in the fabric of society.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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