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BARRHEAD – A youth with “profound” Fetal Alcohol Spectrum Disorder (FASD) who struck a 71-year-old property-owner with his quad, inflicting “significant road rash” on the victim, was sentenced to two years of probation in Barrhead Court of Justice on April 25,
The teen, who cannot be identified under the Youth Criminal Justice Act, maintained his not guilty plea to assault causing bodily harm but pleaded guilty to dangerous operation of a vehicle causing bodily harm under Section 320.13 (2) of the Criminal Code of Canada.
Judge Gerald Annetts sentenced the youth to two years of probation in line with a joint submission from the Crown and defence. While the terms of the probation order were not read out in court, statements from the Crown and defence indicated that it included 25 hours of community service and enrolment in programs aimed at treatment of the youth’s condition.
Annetts also imposed a one-year driving prohibition, which was requested by the Crown.
Annetts said he felt the sentence was appropriate given the circumstances, alluding to the Alberta Court of Appeal’s authority with regards to offenders who have FASD and how their cognitive deficits may affect their moral blameworthiness.
“The more acute the deficit, the greater the importance as a mitigating factor, and the less weight I should be placing on deterrence and denunciation when determining an appropriate sentence,” he said, adding that the youth was lucky that the victim’s injuries were not more serious.
Facts of the case
Crown prosecutor Anthony Estephan said that on July 31, 2022, at approximately 4:18 p.m., the youth was operating his side-by-side ATV (all-terrain vehicle) on a property described as being located 10 minutes north of Fort Assiniboine.
Estephan said there was a brief interaction where the property-owner told the youth to get off of his land. The youth then drove his ATV towards the property-owner, striking him and then leaving the scene immediately.
The victim’s wife observed the incident and contacted 9-1-1. Estephan said the victim was transported to the Barrhead Healthcare Centre with bruising and some minor bleeding from his lower right abdomen and right arm.
“The injuries were described in medical reports as significant road rash,” Estephan said.
Barrhead RCMP then located the youth, who was “crying and shaking” while speaking to police, he said, adding that he was co-operative with RCMP and admitted to not knowing whether the property-owner was injured.
Defence lawyer Jan Terhart indicated that the youth’s parents had separated prior to this offence, and while he is now living with his mother, the youth was residing with his father at the time.
Terhart said the youth had been told by his father that he could go riding along the trail where he was confronted by the victim, who was “rightfully upset” about the youth being on his property.
“(The youth) simply panicked. He just drove off without any regard to who was there, or who was in the way, and struck (the victim) on the way by,” he said.
Victim impact
Estephan then read out a victim impact statement from the property-owner, who said he has been unable to do “much of anything” since the incident.
For instance, the statement indicated that the victim has been unable to drive because he couldn’t look over his left shoulder to see traffic and could not pursue his passion of golfing.
“In terms of the physical impact, the pain in my shoulder seems to be long-term. It aches at night when I’m in bed, trying to sleep. I wake up in the morning with headaches due to whiplash. Currently, I go to physiotherapy twice a week,” the victim impact statement read.
In terms of economic impact, the property-owner indicated that he was in the middle of renovating his home when the incident occurred, and they have now been forced to bring in tradespeople to do work he normally would have handled.
As well, he has the added burden of spending money on gas to attend physiotherapy in Barrhead or doctor appointments in Edmonton.
The victim also indicated that his wife is more fearful in the aftermath of the incident, adding that they have placed a gate on the lease road where the incident occurred, and they now have their sons on speed-dial.
“I lost a full summer of my life. If I was a 30-year-old, it would not have impacted me the way it has,” the victim impact statement reads.
Mitigating factors
Estephan said April 25 had been the original trial date for the case, but the defence and Crown had been in conversations for some time and the matter had been brought forward some time ago to vacate this trial date with an expectation that a resolution would be reached.
For that reason, the Crown considered this an early guilty plea, Estephan said, adding that the youth’s plea also relieved the victim or his wife from having to take the stand.
“(The youth) is also taking responsibility for his actions and being accountable for what he did. He is demonstrating remorse by virtue of his conduct,” he said.
Estephan also noted the significant mitigating factor of the youth’s FASD diagnosis, entering a number of documents attesting to the male’s condition.
“There is certainly a connection between the symptoms that (the youth) would experience with that disorder and the commission of this offence,” he said.
“Most notably, it’s (the youth’s) reaction to this situation and perhaps ... the inability to respond to this situation in a manner that may have been more appropriate.”
Estephan acknowledged that the victim had suffered emotional and financial harm on top of his physical injuries. It was also aggravating that the youth had left the scene of the incident without stopping to check on the victim.
“I think we’re very fortunate today that … physically, the injuries were not worse than they are. But there were injuries, in any event, so the gravity is serious,” he said.
Terhart acknowledged that it would have been better if the youth had just stopped, but “he has some deficits which didn’t really make that an option for him.”
He suggested that the lengthy probationary period might actually be beneficial to the youth, as probation would open some doors in terms of treatment programs that might not be available otherwise.
“So it’s certainly in his best interests to be restricted for a longer period of time than might otherwise be contemplated,” Terhart said.
