Court Information

Court: Ontario Court of Justice

Location: Oshawa, Ontario

Date of Sentencing: August 28, 2014

Judge: The Honourable Justice M.S. Felix

Parties and Counsel

Crown: Her Majesty the Queen Crown Counsel: G. O'Driscoll

Accused: Brandon Carreira Defence Counsel: R. Handlarski

Reasons for Sentence

FELIX, J. (Orally):

I'm providing these oral reasons on an expedited basis. It has been one week since I've heard submissions and I have not had an opportunity to review the transcript of the evidence in this hearing. I've done my best, based on my notes and aided by the submissions of counsel. I reserve the right to make minor editorial corrections that do not affect the substance of my judgment if this decision is published.

I. FRAMEWORK – THE OFFENCES

Brandon Carreira pled guilty to the criminal offence of criminal negligence causing death contrary to section 220 of the Criminal Code of Canada. He operated his motorcycle on Sunday, May 26th, 2013 and caused the death of a passenger on the motorcycle named Teegan Danielle Herold. He has also pled guilty to section 3 of the Ontario Compulsory Automobile Insurance Act RSO 1990 Chapter c. 25. He did not have insurance on his motorcycle.

His plea was entered on August the 6th, 2014. While he pled guilty to the offences there was a question as to what aggravating facts were admitted. As a result we embarked upon a sentencing hearing and the court heard evidence from several witnesses over a period of three days. Extensive submissions have been made by Crown Attorney Mr. O'Driscoll and defence counsel Mr. Handlarski.

II. PROOF OF CRIMINAL NEGLIGENCE

Criminal negligence in driving-related cases requires proof that the accused's conduct constituted a marked and substantial departure from that expected of the reasonable driver and proof that the conduct demonstrated a wanton or reckless disregard for the lives or safety of other persons. Brandon Carreira pled guilty and the court accepted his guilty plea because there was ample demonstration in the facts of both of these elements.

III. "GARDINER HEARING" - BURDEN OF PROOF

The defendant has admitted the facts contained in Exhibit 1. I have also received an agreement that the minimum distance travelled by the defendant on his motorcycle would have been one-point-two kilometres. I accept these agreed facts and find that they are a foundation for me to consider when evaluating other evidence in this proceeding and to determine what aggravating facts have been proven.

In R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 the Supreme Court of Canada set out the following guidance:

"It should be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that, any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested, the issues should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. 'It would appear well established that the sentencing process is merely a phase of the trial process, (Olah, supra, at p. 107 cited by the Supreme Court of Canada). Upon conviction, the accused is not abruptly deprived of all procedural rights existing at trial. He has a right to counsel, a right to call evidence, and to cross-examine the prosecution witnesses, a right to give evidence himself, and to address the court."

I also find that I must apply the principles outlined in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 given the defence evidence presented during this hearing.

IV. SECTION 724(1) - AGREED FACTS

Pursuant to section 724(1) of the Criminal Code of Canada the Crown and defence provided me with Exhibit 1 to these proceedings. These are agreed facts and I accept them. In summary, Brandon Carreira was heavily intoxicated by alcohol. He offered a ride on his motorcycle to the deceased, Teegan Danielle Herold. He skidded, lost control of the motorcycle, and he caused the death of Teegan Danielle Herold. He suffered injuries, and at the time of the police investigation indicated he had no memory of the event.

V. FACTS PROVEN ON THE GARDINER HEARING

A number of days of evidence and numerous witnesses were called on the sentencing hearing. I will not recount the viva voce evidence in detail. My failure to refer to certain evidence does not mean that I failed to consider it. I have considered the evidence heard during the hearing. I have considered the agreed statement of facts and the submissions of counsel. I believe that I have a responsibility to the public, the Herold family and friends, and to Brandon Carreira to explain the basis for my judgment today.

Based on the evidence, the law, and the submissions of counsel I find there are four main issues that I must address to determine the relevant aggravating facts on sentence.

Four Main Issues

1. Is the fact that the offence of criminal negligence causing death was caused by the use of a motorcycle deserving of any special recognition? Is the use of a motorcycle per se an aggravating factor?

2. Did Brandon Carreira voluntarily consume alcohol?

3. To what extent was Brandon Carreira intoxicated by alcohol?

4. Was Brandon Carreira's level of intoxication a significant cause of the accident, thereby constituting an aggravating factor?

Issue Number One: Motorcycle as Aggravating Factor

I find that there is no specialized aggravating factor attributable to the use of a motorcycle per se. They are legal vehicles and operable on our roads and highways. It is the manner in which a vehicle is operated that is the core concern, whether it be a motorcycle, a Ford Focus, or a Ferrari.

Each case and each circumstance has to be evaluated carefully. It makes common sense that if the motor vehicle has certain enhanced characteristics there could be a corresponding duty of care to ensure its safe operation. This depends on the circumstances. It may also depend on the particular experience of the operator.

In this case I find that Brandon Carreira is an experienced motorcycle rider. I find as a fact that the Yamaha YZF-R1 is a highly specialized motorcycle that is inherently far more dangerous to operate than a four-wheeled car. The mechanical specifications are contained in Exhibit 1 and detail that this is a highly sophisticated "track-ready" speed motorcycle. During cross-examination by Crown attorney O'Driscoll the specific details including speed and handling characteristics were acknowledged by the defendant. The operator of this particular motorcycle must possess a certain skill level and an enhanced ability to operate the motorcycle safely. Brandon Carreira acknowledged this in his evidence. He was subjectively aware of this specialized duty and risk.

Separate and apart from the operation of a motorcycle there is an even more heightened concern when a passenger is taken on a motorcycle. I heard evidence on this issue. Subjectively, Brandon Carreira acknowledged this. He testified to this fact. He further testified that he had not allowed his fiancée to ride on the motorcycle due to the inherent danger. He then testified that she had probably been on the motorcycle only once or twice.

I find that the Crown has established beyond a reasonable doubt that the type of motorized vehicle in this particular case, coupled with Brandon Carreira's subjective knowledge of the requirement of enhanced ability and the specialized risk is indeed an aggravating factor.

Issue Number Two: Voluntary Consumption of Alcohol

Brandon Carreira admits he committed the offence of criminal negligence causing death. During this sentence hearing he testified that he did not consume alcohol voluntarily at first. He indicated that he consumed Caesar drinks on the patio of the restaurant. He testified that he was not aware that Caesar drinks contained alcohol and he did not detect alcohol in the drinks provided. He submits that his later consumption of a large amount of alcohol was linked to the early involuntary consumption of alcohol.

I find that there is a rebuttable presumption with respect to voluntary consumption of alcohol in "drinking and driving" law per the Supreme Court of Canada in R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.J. No. 60 at p. 63 and 64:

"When it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence...and must be convicted unless other evidence is adduced, which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment, which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then in my view the offence...cannot be said to have been committed."

In the context of this "Gardiner hearing" Mr. Carreira holds the Crown to strict proof of this issue.

It should be noted that while evidence of intoxication is often present in criminal negligence cases involving motor vehicles, it is not a condition-precedent to proof of the offence. In other words the offence may be committed without intoxication. I find that the fact of voluntary consumption of alcohol and the degree of intoxication are two issues that the Crown must prove beyond a reasonable doubt if I am to consider intoxication as an aggravating factor on sentence. Brandon Carreira need not disprove these issues. He need only raise a doubt by rebutting the presumption.

I find there are three issues I must address on route to a decision on the question of voluntary consumption of alcohol:

1. Brandon Carreira's "fractured recovered memory".
2. The "Caesar drink issue".
3. Brandon Carreira's stated reliance on Heather Ricard.

One: The Fractured Memory

I will begin with the recovered memory issue because it has an impact on other issues in this hearing.

The defendant testified that he has (what he described) as a "fractured memory". He does not recall events clearly. He does not recall events completely. There is no complete memory of his involvement in the offence, his interactions with others, what he did, what he said. He testified that he understood that this was as a result of injuries received in the collision. He testified that he had received a concussion.

First of all, I ruled in this hearing that there was no requirement to call expert evidence to lay a foundation to allow me to hear this type of evidence from the defendant. That said, the evidence deserves to be evaluated thoroughly and carefully having regard to the burden of proof and the principles in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

Second, I would observe that I have not received any evidence about this "recovered memory" state separate and apart from the defendant. To be clear, I have not received any expert opinion evidence generally on this issue. I have not received any expert evidence specific to Brandon Carreira.

I am allowed to rely on my common sense and the common human experience in the world. I am generally aware that there are medical professionals in the world who help those who suffer from memory loss due to trauma. I would imagine that these medical professionals work with the patient to address the medical cause of memory loss and to assist with rehabilitation and recovery. There is no such evidence in this case. It is not required as a pre-condition to admissibility, but I must evaluate the evidence based on the applicable principles of law, the evidence that I do have, and my own common sense.

To be frank, there are a number of questions I have about the evidence I heard from Brandon Carreira.

1. Is there a specific medical injury causing the memory loss? What are the symptoms of the memory loss?
2. What was the strategy deployed by medical professionals, if any, to address the memory loss? Were medications utilized?
3. Were there medical professionals involved? How many? What specialties?
4. How many times did Mr. Carreira attend appointments to address this memory loss issue?
5. How has he progressed throughout the treatment? What is the prognosis?

I could go on and on and list 10 or 20 more questions, but that is not my purpose or my role. I do not understand why his memory is as fractured as he describes. I do not know why he has a memory of certain events but not other events.

For example, why did he testify that he remembers putting a helmet on Teegan Danielle Herold but he does not testify to a recall concerning stalling the motorcycle shortly thereafter? Why does he have a distinct memory of the sensation, taste, and consumption of Caesar drinks but not the other alcohol consumed subsequently?

The night before this tragic event he consumed a large amount of alcohol and testified that in the morning he had to rely on his friend and another person to fill him in on what occurred. Was this memory loss a problem prior to this tragic event? I must assess his evidence using my common sense, guided by the applicable legal principles including the burden of proof in R. v. W.(D), previously cited.

In Chapter 30:10 of McWilliams Canadian Criminal Evidence 5th edition, the authors discuss the analysis of credibility. It strikes me that the truthfulness of a witness is a separate issue from the reliability of the witness. The authors point out in that chapter that the reliability of a witness is concerned with issues such as whether the witness has accurately recalled or observed what he or she is testifying about.

The simple fact is that I find Brandon Carreira to be an unreliable witness due to his "fractured memory" memory loss. Brandon Carreira is an unreliable witness by definition. He claims no complete memory of the relevant events. He has a memory of some things and not others. His memory is selective. In fact, it is best described as he described it - fractured. He has testified that through support groups and counselling and reviewing the disclosure he began to recover memories approximately six months later. The memories of what happened the day before and leading up to the collision are the most fractured.

I do not have to make a finding that this claimed memory loss is deliberate or contrived. I make no such finding. I will simply weigh the evidence having regard to this fundamental concern about reliability.

I have carefully considered his evidence on this issue. I've gone over it several times over and over again. I've come to the conclusion that it's dangerous to rely on evidence from this witness, Mr. Carreira.

I cannot fully evaluate the evidence given its stipulated incompleteness. I cannot weigh the evidence against other witness evidence in this case properly. I cannot weigh his evidence against other evidence in this case properly. I cannot determine if his evidence as a whole is internally consistent. I cannot determine if there are material gaps in his evidence. A fractured memory, whatever the cause, presents a significant challenge to the court.

I want to be clear; I am not reversing the presumption of innocence or reversing the burden of proof. I'm simply stating a fact. A witness who testifies to an incomplete memory has to be closely examined on the issue of reliability of that evidence, leaving aside the issue of whether it is true or not. The fractured memory of Brandon Carreira is a significant factor when I'm evaluating his evidence and applying the test in R. v. D.(W) and considering the evidence overall and whether the Crown has established facts beyond a reasonable doubt.

Two: The Caesar Issue

With respect to the consumption of Caesars, Mr. Carreira has not rebutted the presumption that he voluntarily consumed alcohol. I'm satisfied on the evidence as a whole that he voluntarily consumed alcohol at the establishment that Sunday. Whether he formed that intention prior to attending the establishment, while parking his motorcycle, while walking up to the door or minutes after arriving, is of no real importance to me in this sentencing.

I find it difficult to accept, having regard to my common sense and life experience, that an adult person in today's society is not aware that a cocktail drink called a Caesar has alcohol in it, much less a self-described alcoholic attending a local restaurant on so-called "Caesar Sundays". It may very well be that Mr. Carreira simply has not retained a memory of what a Caesar contains and is simply unable to testify concerning it today in 2014 post accident. I have no way to critically evaluate his evidence in this regard given his fractured memory.

Mr. Carreira, his friend Ezan, and a group of young and older patrons were consuming alcohol on the patio of the restaurant that Sunday. Was there no discussion about the consumption of alcohol with Ezan? With others on the patio? The evidentiary record before me is that there was not. How do I know there was no discussion about the alcohol amongst the people on the patio and Mr. Carreira has simply not retrieved or recovered that memory? I have to be cautious. This is speculation. I cannot rely upon it. But it is an illustration of the difficulty outlined above when evaluating the evidence from a witness with fractured memories.

There was no real separation between the consumption of Caesars and the consumption of other alcohol on the part of Brandon Carreira as submitted by counsel for Mr. Carreira. Why is there no recall of the slide from tomato juice, to beer, to a tequila shot proximate in time to him getting on his motorcycle? Again, we simply cannot know the answer to this.

Generally, I do not know if his fragmented memory today has robbed him of important details. For example, why is there such a recall of the strong taste of the Caesars; the pepper; the realization that this is nothing like the tomato juice he normally loved to drink? How do I know he has not yet recovered a memory of detecting that he was becoming intoxicated? There are material gaps in the evidence.

I do not accept his evidence or the submission that he went to the establishment out of some earnest need to see it and/or to say goodbye to Heather Ricard. With the greatest of respect, the establishment I have seen in the pictures is rather unremarkable. I've heard evidence and seen the pictures concerning the layout of the establishment. I'm satisfied it is a small establishment and it would take seconds to cast your eyes around the small interior. I heard no evidence about a tour, introduction to the cook in the kitchen, or other features of a special attendance for the purpose of touring the premises. There was no special bond between Mr. Carreira and Ms. Ricard. There was no relationship interest. She was someone who was dating his friend. He met her the day before. Why was it so important to say goodbye after spending approximately an hour with her and Ezan that very morning recounting the previous night's escapades?

Where he parked his bike in front of the establishment, in my respectful view, is neutral evidence. It does not disclose his intention to stay for a short time or a long time. He did not apparently enter the establishment with his motorcycle helmet under his arm. This doesn't prove that he entered the restaurant and intended to stay for a long time either. Maybe he simply wanted to park his high-performance motorcycle where he could see it. Maybe it was parked there to impress the patrons. I don't know, and nothing much turns on it.

I noted that when Brandon Carreira testified he took great care to point out that when on the patio he sat up against the building facing the street. He then volunteered evidence that he could not see the drinks being made inside.

He did not ask about the alcohol in the Caesar and he says no one told him. "Tasted like ice cold tomato juice", he said. Except who puts black pepper in tomato juice and serves it in a jug?

His friend Ezan, his drinking partner from the night prior, was with him and also sat there drinking Caesars.

As a trial judge I must use common sense, but I must also only consider the evidence heard. I have knowledge in my mind, and indeed perhaps many people in the courtroom have this knowledge, that a Caesar is a popular drink in Canada and is a Canadian invention. There were submissions by defence counsel on this point. The elephant in the room so-to-speak is that I'm aware - and many members of the public are aware - that a Caesar is a popular hangover remedy, the irony being it has alcohol in it. I have decided that I will simply not rely on this point and I have disabused my mind of this issue because there was no evidence directly on point. I certainly cannot take judicial notice of this. It's perhaps not quite notoriously known.

I do not believe the evidence that Brandon Carreira provided about the consumption of Caesars, mostly due to his deficient memory. I'm not in a state of doubt as to his voluntary consumption of alcohol. I'm convinced beyond a reasonable doubt that he voluntarily consumed alcohol at the establishment that Sunday. Whether he formed that intention prior to attending the establishment, while parking his motorcycle, while walking up to the door or minutes after arriving, is of no real importance to me in this sentencing.

I want to emphasize were his memory less fractured, more complete, I would be in a better position to evaluate his evidence, to accept his evidence, have it at least raise a doubt on an issue, or cause me to be unsure overall whether the Crown has proven this issue beyond a reasonable doubt.

Three: Reliance on Heather Ricard

Heather Ricard was a witness who had some credibility challenges skillfully and effectively illuminated by Mr. Handlarski's cross-examination.

She admitted under oath that she was trying to safeguard herself in the context of an investigation by the police into the tragic death of a young woman. This is quite telling, disturbing, and concerning about her state of mind.

I'm troubled by the missing tab. I'm troubled about her willingness to mislead or lie to the police. I'm not satisfied that she was an entirely truthful witness. That being said I am satisfied that she warned Brandon Carreira prior to him leaving on the motorcycle, as this was corroborated by Christian Westlake.

It is totally appropriate to suggest that a bartender has an obligation to follow provincial law with respect to the service of alcohol. That being said, I found it difficult to accept the submission of counsel that Brandon Carreira was somehow entitled to rely on Heather Ricard to be aware of how drunk he was the night before; that he was feeling hung over or unwell; that he had some distance to drive; and he had work scheduled the next day. I repeat, this is a woman he met the day before.

The tone of Mr. Carreira's evidence and indeed the submissions of counsel suggest that Heather Ricard had a duty to evaluate these circumstances; that somehow she is the cause of his predicament. It is too much to submit to me that she had a positive duty to proactively advise Mr. Carreira that she was serving him alcohol. Is a bartender required to keep an account of every customer, their particular characteristics, their plans for the next day, and factor that into their decisions? No. Mr. Carreira is a grown man and has demonstrated responsibility in his life as I now know. Why not ask someone what you're putting into your body if you're totally unaware? Why not ask why some of the young women who are on the patio also enjoying Caesars? Why not ask your friend Ezan, why are drinking so much tomato juice on the patio? Why is everyone so involved with tomato juice? I didn't hear evidence that this occurred.

Whatever one thinks about Ms. Ricard she did not try to stop him that day. She tried to stop this tragedy. If she's liable in civil law that's not my concern on this sentencing. Mr. Carreira evidence on this point, his reliance on her that she had a positive duty, is more in the range of an after-the-fact justification and I reject this approach. Mr. Carreira was a self-described alcoholic on that fateful Sunday. He consumed alcohol voluntarily.

Issue Number Three: Extent of Intoxication

Forensic toxicologist Mrs. Betty Chow, her report is contained in Exhibit 1 and establishes that at the time of driving Mr. Carreira's blood alcohol concentration, using the hospital result, would have been between 196 and 221 milligrams of alcohol in 100 millilitres of blood.

Based on her own independent analysis the result would have been between 206 and 231 milligrams of alcohol in 100 millilitres of blood. There is ample evidence on this hearing that the defendant was intoxicated by alcohol, though the observation of this state varies from witness to witness. Everyone perceives things differently. Everyone has a different opportunity or capacity to observe. Everyone has a different capacity to recall. I am not concerned about the variance in the testimony from the witnesses about his apparent state of intoxication. Some of the witnesses in this hearing were consuming alcohol as well. I must say that I find more favour with Mr. and Mrs. Umphrey's evidence because they were not heavily intoxicated and had a quieter opportunity to observe the defendant inside the restaurant. I note that Mr. Umphrey actually went over and interacted with this gentleman because he was close to Mr. Umphrey's children and Mr. Umphrey wanted to be a buffer between his children and this gentleman, given his state of intoxication.

I find as well that Brandon Carreira engaged in boastful discussion. He spoke to Mr. Umphrey about the military. I've heard nothing about his service to the country. I suspect that is the alcohol talking. Quite frankly, I've also disabused my mind of the discussion about cocaine for the same reason. There's no evidence of drug consumption in this case.

There can be no dispute. Really, defence counsel in the end did not seriously dispute the fact that Brandon Carreira was heavily intoxicated. I find he was grossly intoxicated. The Crown has proven his level of intoxication beyond a reasonable doubt.

Issue Number Four: Intoxication as Significant Cause of Accident

Leaving aside the test in law for the commission of the offence of criminal negligence causing death, as outlined above in the admitted facts portion of this judgment and in Exhibit 1, a review of all of those factors discloses no environmental factor that contributed to the death of Teegan Danielle Herold.

The admitted facts and the collision reconstruction evidence filed in Exhibit 1 cite speed and driver error as relevant factors. While I find that is so, I find that the defendant's level of intoxication is a significant cause of the accident.

Dr. Betty Chow's report outlines that significant impairment of one's driving ability is observed at levels of 50 milligrams of alcohol in 100 millilitres of blood. In this case I have approximately four times that level of alcohol in Mr. Carreira's system at the time of operation.

Section 255.1 of the Criminal Code instructs that alcohol levels exceeding 160 milligrams in 100 millilitres of blood are an aggravating factor on sentence.

Brandon Carreira's level of intoxication and his operation of his motorcycle with Teegan Danielle Herold as a passenger over a distance of approximately one-point-two kilometres ultimately encountering a clearly marked one-way street is the most significant contributing factor to the issue of causation in this case.

VI. CONCLUSION – AGGRAVATING FACTORS

I will now summarize my findings as to the aggravating factors relying on the findings I have made during the hearing and the admitted facts.

1. The defendant has an extensive Provincial Offences Act record.

2. Was operating his motorcycle without insurance.

3. Was operating a Yamaha YZF-R1 high performance track-ready speed bike motorcycle.

4. The roadway was clear.

5. There was nothing impairing vision of the roadway.

6. There were no weather-related conditions affecting the operation of the motorcycle.

7. It was daylight.

8. There was no evidence of an intervening event relevant to the issue of causation.

9. He voluntarily consumed alcohol such that his readings, based on the hospital result, would have been between 196 and 221 milligrams of alcohol in 100 millilitres of blood. Based on the toxicologist's independent analysis the result would have been between 206 and 231 milligrams of alcohol in 100 millilitres of blood - gross, excessive levels of intoxication.

10. Brandon Carreira was warned on two occasions by two separate witnesses, within a short time frame not to operate his motorcycle due to his state of intoxication. Despite this, persisted and operated his motorcycle.

11. He stalled his motorcycle at first. That was another opportunity to reconsider operating it, much less with a passenger.

12. He was stopped yet again by another witness who cautioned him not to operate his motorcycle without a helmet as there were "cops" in the area. There was another opportunity to stop. Instead he drove across the street a short distance without a helmet to obtain a helmet for himself after providing a helmet to his passenger.

13. He drove through a residential area with a posted speed limit of 50 kilometres per hour at a high rate of speed, shifting gears aggressively.

14. Prior to the collision he was travelling in the range of 84 to 95 kilometres per hour in a posted 50 kilometre an hour zone.

15. He entered the wrong way on Simcoe Street at Harbour Park Crescent.

16. Simcoe Street is clearly marked with two "Do Not Enter" signs and a one-way arrow sign directing motorists. I've seen the photographs provided in Exhibit 1. It is clearly marked.

17. He proceeded westbound onto the eastbound portion of Simcoe Street essentially driving the wrong way down a one-way street.

18. He failed to negotiate a turn in the roadway.

19. He applied his brakes for 50.5 metres, locking up both his front and rear wheels having regard to the tremendous speed he was travelling.

20. He caused the death of Teegan Danielle Herold.

In short, there is no environmental explanation or excuse to explain the motorcycle crashing. I will not term these circumstances to be an accident because it was not an accident. It could have been prevented. It should have been prevented. Two members of the community intervened to try to stop him. None of this had to happen.

In conclusion, I judge Brandon Carreira's criminal moral blameworthiness for this offence to be very high and deserving of significant denunciation.

VII. SENTENCE

Because we embarked upon a Gardiner hearing I have made the findings with respect to relevant aggravating factors first. I will now move on to the other considerations involved in determining a fit sentence.

VIII. FACTORS IN MITIGATION

Brandon Carreira indicated his intention to plead guilty at an early stage. He notified the Crown as soon as possible to let the Crown know this position. I observe that a trial in this matter would have taken several years. There are always challenges one can launch against a criminal case. There is always the ability in our system of law to hold the Crown to prove the case beyond a reasonable doubt. At a jury trial only one juror need have a doubt in order for there to be an acquittal. Mr. Carreira has spared the Herold family and friends that process.

I balance this against the fact that there was a strong Crown's case and the fact that notwithstanding the guilty plea there was a significant amount of litigation around the issue of voluntary consumption of alcohol. Mr. Carreira is not to be punished for having a trial of that issue, but he does not get full credit for an early remorseful plea and a quick resolution of the matter, thereby sparing the family.

The criminal law recognizes that when a person pleads guilty there is inferred remorse. I find in this case that Mr. Brandon Carreira is remorseful.

IX. BACKGROUND OF THE OFFENDER - FAMILY

Mr. Carreira has a good background. I have read carefully 14 letters of support and I know that he's a good person, a dedicated partner, brother, son, and grandson.

I noted the letters from Mr. and Mrs. Chin. He's impressed the parents of his partner of seven years. Even her grandparents are impressed with his dedication to his family, his support of them. His partner Jessica has told me about his dedication to family. I was particularly impressed by the letters from his mother. Her letters captured his character, his approach to life, philosophy, his support for her, and the family through great challenges.

I have noted his excellent employment history. I have read with interest his dedication to martial arts, supporting kids and families, and essentially doing community service work.

The letters all carry a common theme – none of these close members of his family, friends, and his partner appear to have had any idea about what he told the court, that he was a struggling binge alcoholic. When you read many of the cases in this area you find that the offenders in many of the cases, are in similar situations. Previous good character; no prior criminal record; members of their community.

X. BACKGROUND OF THE OFFENDER - RECORD

He has no prior criminal record. On the other hand I must recognize that he has 17 convictions for provincial offences including nine for offences relating to operating a vehicle. This extensive record for committing provincial offences in this province is aggravating.

He has a prior conviction for operating with no insurance in 2008. He has numerous speeding convictions. He has been convicted by me in this circumstance before the court of once again operating his motorcycle without insurance. He had no business being on the road with that motorcycle, period.

XI. CASE LAW

I have reviewed the cases that both the Crown and defence have provided. I have also reviewed over two dozen appellate decisions in this area of law, and I find the following cases of assistance, and I ask for everyone's indulgence as I quote:

In R. v. Bernshaw, 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193, Mr. Justice Cory explained the impact of drinking and driving at pages 204 and 205:

"Every year, drunk driving leaves a terrible trail of death, injury, heartbreak, and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones."

In R. v. Kummer, 2011 ONCA 39 (CanLII), [2011] O.J. No. 234 the Ontario Court of Appeal provided recent guidance. The court stated, beginning at paragraph 18:

"The sentence imposed on the appellant is higher than those levied in Ramage and Junkert. For the appellant, this difference provides the tipping point in his argument. The appellant candidly and fairly acknowledges that the sentencing judge was aware of and considered the general principles of sentencing, fully addressed the relevant aggravating and mitigating factors, and engaged in the proportionality analysis mandated by Priest. The appellant's submission, summarized crisply near the end of his oral argument is 'the number is too high...an eight-year sentence here is outside the four to five-year range in Rampage and Junkert.'"

The court continued in paragraph 19. "I do not accept this submission.

Ramage and Junkert do not and cannot cap the sentences available for this kind of offence. This is so for three reasons. First – paragraph 20:

"Imposing such a cap would contradict the Criminal Code and defy the will of Parliament. The maximum sentence for the offence of impaired driving causing death is life imprisonment. It must remain within the realm of possibility that a life sentence could be imposed for this crime. Absent a determination that the maximum penalty is unconstitutional this court is not entitled to lower the maximum penalty any more than it is entitled to raise it."

Second, paragraph 21:

"In Junkert itself this court cautioned against thinking formulaically about sentence ranges in drinking and driving cases involving death."

As expressed by Chief Justice O'Connor at paragraph 40:

"I begin by noting that courts should be cautious in rigidly applying 'a range' of sentences in cases such as this, involving impaired driving causing death. In R. v. Heaslip ... in dismissing a Crown appeal from sentence for two counts of impaired driving causing bodily harm, this court said in R. v. L(J.), 2000 CanLII 15854 (ON CA), 147 C.C.C. (3d) 299, this Court also recognized that cases involving drinking and driving did not demonstrate a particular range of sentencing, but rather that the sentences were driven by the almost 'infinite variety of circumstances in which this offence can be committed.'"

I would note that the Ontario Court of Appeal reinforced this approach in a recent endorsement; R. v. Purtill, 2013 ONCA 692 (CanLII), [2013] O.J. No. 5136.

I have surveyed numerous cases in this area. It is perhaps not surprising that I do not find any particular case to be instructive on sentence. Sentencing is a unique and particular exercise.

I do not accept the submissions of Mr. Handlarski that I should compare Mr. Carreira's plea of guilt to other cases where accused persons put the Crown to its burden at a trial, preliminary hearing, or otherwise challenge the admissibility of evidence. I further do not find persuasive the related submissions concerning remorse or what I term, a concept of "relative remorse", which is trying to assign a particularized level of remorse based on the conduct of the defendant during the criminal proceedings. I reject those submissions. I reject that approach to sentence as I believe I would be in error if I considered this approach. (see R. v. N.(J.), (1994) O.J. No. 2965, Ontario Court of Appeal, R. v. Hunter, 2004 CanLII 32107 (ON CA), [2004] O.J. No. 328, Ontario Court of Appeal). In my view these submissions do not adequately respect the presumption of innocence and the right of an accused person to challenge the case. It's a fundamental legal principle in our society and I believe it's dangerous to focus on the conduct of the defendant in this way. I do not find the submissions persuasive in this regard.

The case of R. v. Karafa, [2014] No. 3013, Mr. Justice Trotter of the Ontario Superior Court of Justice. And I thank Mr. Handlarski for referring to that case. I agree with the observations in paragraph 18 of that decision and the cases cited therein. I won't repeat them.

In summary:

1. Courts have repeatedly stressed the importance of deterrence and denunciation in this area of law; and,

2. Sentences have tended to increase over the years.

I further share Mr. Justice Trotter's observation in paragraph 20 of that decision that,

"Each case is unique, making sentencing anything but automatic or mechanical. After all, general deterrence and denunciation are only two of the relevant goals of sentencing. Rehabilitation and specific deterrence are also very important. The individual circumstances of the offences and the offender must be examined to determine the appropriate sentence. Typically, this is achieved by characterizing the relevant facts and circumstances as aggravating or mitigating."

Finally, my survey of the case law ends with R. v. McVeigh, 1985 CanLII 115 (ON CA), O.J. No. 207. At that time the Supreme Court of Ontario, Court of Appeal in Toronto. Chief Justice MacKinnon outlined in the first paragraph that that appeal raised an important question of policy for the court. The respondent was sentenced to 21 months imprisonment for criminal negligence causing death arising of a motor vehicle accident.

There are paragraphs of that judgment that are often cited, and I will cite them now:

"In my view the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the 'lower end' would emphasize that it is the conduct of the accused, not just the consequences that is the criminality punished. If such an approach acts as a general deterrent, then the possibilities of serious and tragic result from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the court's repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer. Members of the public, when they exercise their lawful right to use the highways of this province should not live in fear they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone to any length towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving."

Justice Laycraft of the Alberta Court of Appeal in R. v. Jacobs, (1982) 70 C.C.C. 20, 569 at 574 put the issue clearly:

"The culpability in each case where a death occurred from drinking and driving is not only the driving error or failure which leads immediately to death. The additional blameworthy act, meriting punishment is the earlier act of taking control of a motor vehicle while under the influence of alcohol. The drunken driver disables himself from needing emergencies or from instantly recovering without resulting harm from the small errors which all drivers frequently commit. If it is a culpable act to take control of a motor vehicle while impaired, all drivers guilty of that act merit punishment and not merely those involved in tragedy. Each is potentially a killer. It is often mere change or mischance which determines which one causes death and which one gets home safely. Should not the attack be on all the impaired drivers of Canada in their tens of thousands, in addition to condemnation of the smaller number who cause death or injury?"

The court concludes that area of the judgment by saying, "I have sought to make clear that in my view the attack should indeed be on all impaired drivers."

XII. APPLICABLE SENTENCING PRINCIPLES

Section 718 of the Criminal Code of Canada holds that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct,

(b) to deter the offender and other persons from committing offences,

(c) to separate offenders from society, where necessary,

(d) to assist in rehabilitating offenders,

(e) to provide reparations for harm done to victims or to the community, and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

One of the fundamental principle of sentencing in section 718.1 of the Criminal Code of Canada is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

I have considered all of the principles outlined in section 718.2 of the Criminal Code, but in particular, I have considered 718.2(a):

"A sentence should be increased or reduced to account for any relevant, aggravating, or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation."

That is one of the deemed aggravating circumstances in 718.2. It is trite to say that the loss of Teegan Danielle Herold meets that criteria.

XIII. THE LOSS OF TEEGAN DANIELLE HEROLD

I indicated a moment ago that Brandon Carreira is a good person. The problem with drinking and drinking and driving offences is that they're often committed by good people with no prior criminal record. He has caused a number of tragedies as a result of his actions.

His family has been devastated by his actions. Victimized. My decision cannot capture the grief and sorrow on the faces of his family. I've seen them during this hearing. The face of his girlfriend Jessica. He has done violence to his family. He has done violence to his relationship with his partner.

But I must also crucially recognize the Herold family and friends. Let me begin by telling you that unfortunately I have had much professional experience with loss. I know that at times there is a criticism of the criminal justice system and some frustration. I must recognize that you have been well served by Mr. O'Driscoll as the Crown attorney personally addressing this matter. You should also know that the approach by Mr. Handlarski is to be commended as respectful.

But this does not change the fact that the Herold family and friends have been severely victimized. The Crown attorney, in his submissions, had great difficulty referring to the victim impact statements and he thought that he could do no better than the victim impact statements. I agree. I simply have no further words to say. The victim impact statements say it all.

I'd like to thank you for writing your statements and allowing me to even glean a glimpse of Teegan Danielle Herold. I want you to know that I've read the impact statements several times and I've looked at the photos you provided. I can appreciate that there is nothing more that can be said. I want to tell the Herold family and friends that I deeply regret their loss. I'd like to thank you for allowing me to understand your loss. I would like to thank you for providing me with a window into her life. The loss is senseless and profoundly aggravating.

I must move on to other sentencing considerations.

XIV. SPECIFIC DETERRENCE

In many cases like this specific deterrence is not a predominant concern because the defendant has a good background and is not expected to be involved in similar or the same offences again. I find in this case there is some specific deterrent concern because Mr. Carreira's prior provincial offences record and the fact that he was prepared to operate his motorcycle without regard for the law requiring insurance.

XV. GENERAL DETERRENCE AND DENUNCIATION

In addition to the cases that I have cited, it is quite clear time, and time, and time again courts have reiterated that the predominate focus of sentencing for this crime is general deterrence and denunciation. The blood alcohol readings in this case are a statutory aggravating factor as per section 255.1 of the Criminal Code of Canada and I have outlined in detail to the best of my ability all of the other aggravating factors.

XVI. REHABILITATION

Brandon Carreira is a young man. It is entirely possible, if not probable, that he will be rehabilitated and not come before a court again. He has taken some steps in A.A. (Alcoholics Anonymous) to get a hold of his alcoholism. He advises that he will continue to work on this issue. I believe that is true. I echo the sentiment of Teegan Danielle Herold's sister that a sentence should not destroy his life, but should be designed to make him pay a significant price.

XVII. SENTENCE

I've considered carefully the submission as to the specific sentence to be considered in this case.

Position Of The Crown

I think it's important for the Herold family and friends, as well as the general public, to know that Crown attorney O'Driscoll is not a pure litigator. He is the Crown attorney. He is a quasi-minister of justice. This means that he is not a pure advocate. No doubt he has agonized over the proper approach in this case. He is obligated to prosecute in a fair fashion and to consider the circumstances of the case, the circumstances of the offender and his background, the case law, and the relevant sentencing principles. The Crown has submitted that six years is the appropriate sentence.

Position of the Defence

The range of sentence of thirty months to three years submitted by Mr. Handlarski is, with great respect, not sufficient to address the criminal moral blameworthiness of Brandon Carreira and to achieve the aims of general deterrence and denunciation.

Pronouncement of Sentence

Mr. Carreira, would you stand up please? It gives me no pleasure to sentence you today and remove you from society and your family. I have an obligation to do my duty and to fearlessly pronounce the sentence that I deem fit.

A transcript of these proceedings is ordered and will be sent to the penitentiary. All of the exhibits in this proceeding, including the victim impact statements, will be sent to the correctional authorities for their review.

First of all, pursuant to section 743.21 of the Criminal Code of Canada you will not communicate, directly or indirectly, with any member of the Herold family during your custodial sentence. This means directly or indirectly, via electronic written means. Do not communicate with them.

With respect to the conviction for operation of your vehicle without insurance I've considered section 59(2) of the Ontario Provincial Offences Act and determined that exceptional circumstances exist. You're going to the penitentiary. The minimum fine would not be in the interest of justice, that is to say your rehabilitation prospects upon release one day. You have a prior conviction from 2008 for no insurance. I can tell you that I'm very suspicious about your conviction in 2008 for also not having a proper licence and whether that is insurance-related, but I have not heard any evidence on this point. The minimum sentence normally would be 10,000 dollars. I will sentence you to a fine of 5,000 dollars with one year to pay that fine under the Provincial Offences Act.

With respect to the criminal sentence, first of all this is – a D.N.A. order will be made pursuant to 487.04(a) of the Criminal Code of Canada. I'm satisfied based on the circumstances of this offence to make this order. A weapons prohibition pursuant to 109 of the Criminal Code will be placed for 10 years. Pursuant to section 259(2) you will be prohibited from driving for ten years. The victim fine surcharge will apply of 200 dollars with one day jail in default. Thirty days to pay.

Having taken into consideration your remorse, guilty plea, the positive and negative aspects of your antecedence and the fact that sentences should increase for these types of offences to more properly reflect denunciation and general deterrence, I believe the appropriate sentence in this case to be six years. The sentence imposed will be six years or 2,190 days. Pre-sentence custody will be eight days at one and a half to one, which equals 12 days, leaving a sentence remaining of 2,178 days. That is the order of this court. Good luck, sir.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Vickie Foster, certify that this document is a true and accurate transcript, to the best of my skills and ability, in the matter of R. v. Carreira, in the Ontario Court of Justice, at 150 Bond Street East, Oshawa, Ontario, produced from Recording No. 2811-102-20140828-091138-10-FELIXMA which has been certified in Form 1.

Note: This certification does not apply to the Reasons for Judgment or Reasons for Sentence, which were judicially reviewed and edited.

VICKIE FOSTER AUTHORIZED COURT TRANSCRIPTIONIST

Date: October 9, 2014

Please contact this AUTHORIZED court transcriptionist to obtain further copies from the reporter listed above.