minicounsel

Date: October 19, 2020

Court File No.: 19-0544

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Matthew Lindsay

Before: Justice Michael G. March

Heard on: March 13 & September 15, 2020

Reasons for Sentence released on: October 19, 2020

Counsel:

Caitlin Downing, for the Crown
Mark Huckabone, for Mr. Lindsay

Introduction

1Matthew Lindsay ("Lindsay") pleaded guilty before me on March 13, 2020 to the offence of operating dangerously a conveyance on April 11, 2019. In doing so, he caused bodily harm to Jacques Lebel ("Lebel") contrary to section 320.13(2) of the Criminal Code ("the Code").

2I heard submissions on sentence from Crown and defence counsel on both March 13 and September 15, 2020.

3Arriving at a sentence which addresses comprehensively the purposes and principles set out in sections 718 to 718.3 of the Code is seldom an easy task. This case was no exception.

Circumstances of the Offence

4On April 11, 2019, police began to receive a flurry of 911 calls about a serious head on collision involving a tractor-trailer and an SUV on Highway 17 near Mountain Road in Whitewater Township, Ontario.

5Both drivers appeared to be trapped in their vehicles.

6Police attended on scene and shut down the operation of the highway in both directions in order to render assistance to the drivers involved in the collision.

7Lindsay was the driver of the SUV.

8Lebel was operating the tractor-trailer.

9Both were extracted from their respective vehicles and transported to hospital with non-life-threatening injuries.

10Prior to the collision, Lebel had been headed eastbound on Highway 17.

11Lindsay was approaching him from the westbound direction.

12Lindsay turned his vehicle abruptly into the path of Lebel's.

13As a result, Lebel attempted to turn his vehicle to the right to avoid Lindsay's. Lebel was unable to succeed completely in doing so. Both vehicles impacted on their drivers' sides.

14In attempting to maintain control of his vehicle, Lebel steered to the left and entered the ditch on the north side of the highway. Connected to Lebel's vehicle was a flatbed trailer loaded with engineered building supplies.

15Lebel's truck broke through a farmer's fence and bogged down in the soft terrain of the ditch. The load Lebel was carrying shifted forward shearing off the roof of his vehicle.

16Lebel found himself pinned against his steering column.

17The shifted load of building supplies further damaged the attached garage of a home occupied by Ryan and Victoria McKay. The wall of their adjacent living room was pushed in. As well, the roof of the residence buckled.

18Flying debris from the collision struck another vehicle behind Lindsay's.

19Lindsay maintained consciousness following the collision. He told paramedics on scene that he intentionally crossed the centreline of the highway in an attempt to commit suicide.

20He lamented that he "couldn't even kill himself properly".

21En route to the hospital, Lindsay continually asked about the condition of the other driver. He stated that if he hurt someone, he did not deserve to live. He described his conduct as unforgivable.

22Lindsay's condition at the time of assessment by paramedics was described as "alert, oriented, somber, answering questions appropriately, calm and not making eye contact".

23Another motorist who happened upon the collision, one Richard Coughlin, captured the incident on his dashboard camera. A review of the video footage confirmed Lindsay's account of the cause for the collision.

24Lebel suffered numerous, debilitating injuries as a result of the incident. They included:

a) a facial laceration stretching from his head area down to his nose,

b) one of his ears having been torn off,

c) part of his cheek having been severed off,

d) two crushed vertebrae in his back,

e) a complete loss of feeling in his left index finger, and

f) deafness in his right ear.

25In his Victim Impact Statement, Lebel recounted that he required in excess of 120 stitches to close the lacerations to his face and head. He underwent plastic surgery to repair his disfigurement.

26To this day, Lebel experiences chronic pain in consequence of the incident. He can no longer work as a professional driver. The lasting effects of his injuries have impacted his future financial stability. He suffers nightmares and flashbacks about the collision.

27Not surprisingly, the physical and mental toll the incident has exacted from him has jeopardized his relationship with his domestic partner.

28In contrast, the physical effects of the collision on Lindsay were minor. Medical testing revealed that he suffered no spinal or head injury. There was no alcohol in his blood when he was taken to hospital on April 11, 2019.

Circumstances of the Offender

29At present, Lindsay is 27 years of age. He is single. He has no children. He resides alone in Cobden, Ontario.

30Lindsay was born in Hilden, Nova Scotia. He was physically abused by his biological father from an early age. His parents separated when he was 7.

31Lindsay's mother and her new partner moved the family to Alfred, Ontario for employment purposes. Lindsay lost all contact with his biological father thereafter.

32Lindsay reported that his school experience was not pleasant. He was bullied for being "small as a kid".

33At 19, Lindsay enlisted in the Canadian military. In 2012, he began his first posting at Garrison Petawawa.

34In 2018, Lindsay was medically discharged due to mental health issues.

35In October 2018, Lindsay began studying at Willis College in Arnprior, Ontario. He enrolled in a cyber security analyst program.

36Unfortunately, around that time as well, he started experiencing auditory hallucinations. This condition led to him to abandon his studies.

37Currently, Lindsay supports himself through benefits he receives from Veteran Affairs Canada.

38On November 26, 2019, Dr. Selaman and Dr. Watts jointly prepared a forensic psychiatric report for the Court. Following a thorough assessment of Lindsay, they were not inclined to make a finding of 'not criminally responsible' under s. 672.10 of the Code. Put another way, the medical evidence pointed to an ability on the part of Lindsay to appreciate the nature and quality of his acts, and their wrongfulness, when he veered into the path of Lebel's vehicle.

39Lindsay's personal history, as reviewed by the doctors, was quite helpful. They concluded with reasonable medical certainty that Lindsay was experiencing active symptoms of a major depressive disorder with psychotic features on April 11, 2019, the date of the offence.

40They opined as well that Lindsay had not yet been prescribed his antipsychotic medication at an optimal dose.

41Lindsay's perceived mistreatment during his military service, his discharge and the breakup of a domestic relationship had added to his stress.

42When interviewed, Lindsay related to the doctors that as a member of the military, people "ganged up on him". He remembered being belittled and diminished virtually every day. He believed his depression and anxiety developed over time as a result.

43Following his discharge, in or about February 2019, Lindsay began experiencing episodes of psychosis. He heard "voices in [his] head screaming at [him] to kill [him]self".

44He smashed his computer because he believed at one point that the voices were emanating from it.

45He secluded himself since, as he explained, it was "... hard to know what, if anything was real anymore". His delusions of hearing things persisted.

46Lindsay began to contemplate suicide. He considered hanging himself in his garage or slitting his own throat. He laid in bed with a knife to his neck on multiple occasions. He also considered overdosing. He researched how to manufacture cyanide.

47Some years before on August 24, 2015, Lindsay went to the emergency department of the Pembroke Regional Hospital. He was noted as having suicidal ideation. He disclosed that he had a morbid personality. Of note, he shared that he thought of committing suicide by either overdosing or running into another car.

48Following a brief stay in hospital, Lindsay was discharged with a prescription for an antidepressant.

49Further, Lindsay told his social worker that in a previous suicide attempt on January 8, 2019, he tried to kill himself by driving into a truck. He escaped harm or death when his vehicle slid clear on an icy road.

50On February 6, 2019, Lindsay went again to the Pembroke Regional Hospital for psychiatric reasons. He spoke of hating his personality and his looks. His assigned counsellor reported the danger he posed to himself to police.

51Under the provisions of the Mental Health Act, Lindsay was transferred to the Ottawa Hospital (General Campus). Against medical advice on February 11, 2019, Lindsay left the care and supervision offered by that facility. He was diagnosed with unspecified psychosis, as well as caffeine and alcohol use disorder. He had been drinking up to 8 cups of coffee per day and up to 26 ounces of liquor per night. He was prescribed Aripiprazole.

52Between March 6 and March 8, 2019 Lindsay was again at the Pembroke Regional Hospital. He had stopped taking his prescription medication because he believed it was causing "bowel seepage". He began having suicidal thoughts once more. His mood was low. He drove to a friend's house and tore apart his computers. The friend suggested he return to the Emergency Department of a local hospital.

53On April 10, 2019, Lindsay began seeing a psychiatrist in Pembroke, Dr. Brown. He was worried and anxious during his initial visit. He reported hearing voices talking to him continuously again.

54Dr. Brown queried whether Lindsay was suffering from depression with psychosis. In addition, the doctor could not rule out underlying borderline personality traits.

55The following day, April 11, 2019, Lindsay drove dangerously causing serious injuries to Lebel. Lindsay was taken to the Pembroke Regional Hospital. Again, under the provisions of the Mental Health Act, Lindsay was a patient at the Ottawa Hospital (General Campus) from April 12-17, 2019. During this stay, his diagnosis of unspecified psychosis was reconfirmed.

56Two days following his discharge, on April 19, 2019, Lindsay re-attended at the Ottawa Hospital (General Campus). He told the medical staff that he had had a mental breakdown. He planned to hang himself with an extension cord. However, he was no longer reporting auditory hallucinations or paranoia. He was kept overnight.

57He opined that the medical system "screwed up" in prescribing Risperidone for him. It was "... the reason he got into an accident".

58On April 24, 2019, Lindsay attended an appointment with Dr. Brown again. His medications were changed. Dr. Brown made a diagnosis of major depressive disorder.

59On two further occasions, September 17 and October 1, 2019, Lindsay saw Dr. Brown. His medications were further adjusted. He was no longer experiencing auditory hallucinations or suicidal ideation.

60On October 11, 2019, Lindsay attended at the Royal Ottawa Hospital for his forensic psychiatry assessment by Drs. Selaman and Watts. The doctors found that his thinking was non-delusional. He was not having thoughts of paranoia, suicide or self-harm.

61When questioned about the day of the collision, Lindsay stated that he took his first dose of 2 mgs. of Risperidone the night before April 11, 2019. Other than feeling anxious in the morning, he could not recall anything unusual. The voices were not there. He did have suicidal thoughts, but had no plan to act on them.

62However, later while driving, they were present and "... told me to kill myself, but they tell me that all the time".

63Lindsay recalled that the voices were still in his head at the time he was transported in the ambulance. They ceased after he was discharged from the hospital following the collision.

64He stated that he still wished he had died.

65When asked by the doctors if he ever thought about driving into a vehicle such as a transport truck because it would be less likely to harm another person while ensuring his own death, Lindsay admitted that the thought had crossed his mind in the past. He denied however that he was thinking of that form of suicide immediately preceding the collision on April 11, 2019.

66In short, the doctors found that Lindsay's insight and judgment were adequate at the time of his assessment. He did not endorse having any psychotic or manic symptoms. He nevertheless continued to experience anger issues.

67The doctors reached the following diagnoses:

a) major depressive disorder with mood-congruent psychotic features, in partial remission,

b) borderline personality traits, and

c) caffeine, alcohol and cannabis use disorder.

Victim Impact Statement

68Section 722(1) of the Code requires consideration of:

"... any statement of a victim ... filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the events on the victim."

69Lebel, as of right, chose to read his Victim Impact Statement in French before me in open court. He was assisted by a French-English interpreter. A translated, corrected version of his statement was made Exhibit 3 at the sentencing hearing. The original French version handwritten by Lebel was filed as Exhibit 4.

70There can be no doubt that the offence committed by Lindsay had a devastating impact physically, emotionally and financially on Lebel. There is little I can do to restore Lebel to his pre-collision state in passing sentence upon Lindsay.

71I accept what Lebel says about his enduring, constant pain, his loss of mobility, his nightmares in reliving the incident, his ongoing physical deficits and his uncertainty as to his financial security.

Crown's Position

72The Crown seeks a penitentiary sentence of 3 years for Lindsay. Further, the Crown asks that a 10 year driving prohibition be imposed.

73The Crown argues that Lindsay should be compelled to provide a sample of his DNA to the authorities.

74Under section 109 of the Code, the Crown requests that a 10 year weapons prohibition be made by the Court.

75Finally, the Crown seeks restitution under section 738 of the Code in the sum of $2500.00 for the damage done to the property occupied by Ryan and Victoria McKay, but owned by one John Alexiou.

Defence Position

76Defence counsel submits that a period of 3 to 9 months in jail would suffice for Lindsay.

77The defence agrees that a driving prohibition must be imposed, but left it in the Court's discretion to determine the appropriate length. Gingerly, 3 to 6 years was suggested.

78The defence is not opposed either to banning Lindsay from possessing weapons for the next 10 years, or requiring him to submit a sample of his DNA.

Denunciation and General Deterrence

79Relying on the authority of R. v. Tkachuk, [2001] A.J. No. 1277, a decision of the Alberta Court of Appeal, the Crown emphasized that the sentencing principles of paramount importance in this case are denunciation and general deterrence.

80In Tkachuk, the offender, in a depressed and despondent state, decided to kill himself by driving his car over the centreline of the highway and head on into the path of an oncoming minivan.

81One of the occupants of the minivan suffered catastrophic injuries. She was essentially wheelchair-bound following the incident.

82At paragraph 12 of the decision, the unanimous Court of Appeal described the offence as such:

"This was a most serious crime. Put bluntly, the appellant deliberately intended to kill, or at least inflict life-threatening injuries on one or more people while attempting to commit suicide. His targets were strangers, chosen completely at random. But for the heroic efforts of the emergency response people, outstanding medical intervention and Mrs. Kerr's determination to live, the appellant would likely have been charged with and convicted of murder and sentenced therefor to imprisonment for life."

83Further, the Alberta Court of Appeal opined on the range of sentence the crime ought to attract as follows:

"Given the appellant's intentional and deliberate infliction of life-threatening harm, we think that this case should have attracted the same range of sentence as would be imposed upon conviction for attempted murder. We conclude that a proper application of the principles of sentencing would call for a sentence in the range of 7 to 10 years imprisonment".

84The Court of Appeal concluded however that the sentencing judge had not erred in rejecting a joint submission for a two year sentence. The Court upheld the three year period of incarceration imposed in its stead by the sentencing judge.

85In contrast, the Court of Appeal for Ontario in R. v. Dedeckere, 2017 ONCA 799, held that the principles of deterrence and denunciation cannot completely override the concepts of restraint and proportionality.

86In Dedeckere, the offender tried to commit suicide by driving his vehicle into a hydro pole on a rural road. Debris from the collision struck the victim and caused her serious harm. She required surgery to repair a hole in her skull. She spent some time in rehabilitation.

87The offender was 58 years old at the time the incident occurred. He was not under the influence of drugs or alcohol. He had no criminal record.

88He had a long history of mental illness and failed suicide attempts. He was diagnosed with bipolar disorder some 35 years prior to the accident.

89The offender was a lawyer. He was no longer practising. In fact, he was on a day pass from a mental health facility when the collision occurred. He had also received a letter from the Law Society of Upper Canada the very day of the incident informing him that he would be disbarred.

90At paragraph 13 of Dedeckere, the Court of Appeal wrote:

"Although the sentencing judge mentioned rehabilitation as a principle of sentencing, he sentenced the appellant on the basis of deterrence and denunciation to the exclusion of all other relevant sentencing principles. He failed to consider restraint and proportionality, and did not give meaningful consideration in his analysis to the appellant's mental health and rehabilitation. In essence, the sentencing judge determined that specific deterrence could only be met by a custodial term due to the appellant being chronically suicidal."

91By the time the appeal had been heard by the Court of Appeal for Ontario, the offender had served a year in custody. The sentencing judge had imposed a two year penitentiary term.

92The Court of Appeal reduced the sentence to time served and imposed a two-year period of probation.

93In my humble view, the criminal law has for centuries had an aversion to treating the mentally ill in the same manner as perfectly lucid offenders. Moral culpability does not attach to the same degree to one whose judgment is clouded by a disease of the mind.

94Indeed, in Dedeckere, the unanimous panel of the Court of Appeal for Ontario commented at para. 14 that "... general deterrence is a factor of decreased significance when sentencing those whose behaviour is driven by mental illness". The same could be said about denunciation.

95As I will explain later however, general deterrence and denunciation are not wholly without application to the facts of this case.

Specific Deterrence

96In Dedeckere, the Court of Appeal for Ontario categorically stated at para. 14:

"Specific deterrence has little relevance in the context of suicide ..."

97A person who genuinely attempts to end his or her own life rarely requires societal redress. To the contrary, our institutions, mostly in a clinical and counselling vein, respond to such an individual's despair with offers of treatment, compassion and hope. The goal is to ease the person's troubled mind, and to adjust his or her thinking.

98Suicide is no longer a crime. If a person intends to bring about his or her own demise, there is little society can do to prevent him or her from carrying out his or her plan.

99To my mind, courts of law have no place in sanctioning such an individual with resort to the principle of specific deterrence to dissuade like future conduct on his or her part. The proper legal approach should be one more rooted in rehabilitation and restraint.

Separation from Society, Where Necessary

100When well, if he can be made so, Lindsay would pose no danger to society. He has no criminal record. There is little in his background to suggest he poses a general threat to others.

101In the days and months leading up to April 11, 2019, all factors pointed to Lindsay posing the greatest threat of harm to himself.

Rehabilitation

102As alluded to above, an offender who commits his crime at the very moment of attempting to commit suicide is an extreme rarity.

103In R. v. Ferguson, 2014 ONCA 673, a case decided three years prior to Dedeckere, the Court of Appeal for Ontario upheld a 90 day intermittent sentence and a two year driving prohibition imposed by the trial judge on the appellant, Mr. Ferguson.

104Mr. Ferguson crossed the centre of the highway. He impacted another vehicle approaching him. Two of his passengers suffered serious injuries including a child victim.

105Post collision, Mr. Ferguson slashed his wrists. He was yelling he wanted to die.

106Ferguson was an Endorsement of the Court of Appeal. Endorsements speak briefly to the parties to litigation. They have precedential value, but they do not establish broad overarching principles to be applied by lower courts in future. Indeed, rehabilitation is not specifically mentioned in Ferguson beyond the fact that the appellant was a youthful, first time offender.

107On the other hand, the Court of Appeal did articulate the necessity for general deterrence and denunciation in exercising its discretion to consider a fit disposition, having concluded the trial judge erred in passing sentence.

108Dedeckere was not an Endorsement. The Court of Appeal for Ontario issued formal written reasons for judgment. The Court carefully considered competing principles of sentencing. The factors of deterrence and denunciation were essentially pitted against rehabilitation and restraint.

109The Court went on to find the sentencing judge erred by overemphasizing deterrence and denunciation to the exclusion of restraint, rehabilitation and proportionality.

110Clearly, rehabilitation is a highly significant factor to be adequately addressed when sentencing a mentally ill offender.

Reparations for Harm Done

111To the extent that an offender has an ability to pay for harm caused to people or property, a restitution order should be made.

112In this case, the greatest harm suffered was the physical injury inflicted upon Lebel as a result of the collision caused by Lindsay. Lebel has not put forth any claim for his significant pain and suffering. Perhaps another forum or tribunal has already addressed, or will in future, assess damages to be paid to Lebel by Lindsay.

113On consent in any event, Lindsay through his counsel has agreed to pay the sum of $2500.00 sought by Mr. Alexiou, the owner of the property adversely affected in the aftermath of the collision Lindsay caused.

Promotion of a Sense of Responsibility

114Every sentencing judge must strive to bring home to an offender the wrongfulness of his or her conduct.

115For the offender, however, who commits a crime while attempting to end his or her own life, promoting a sense of responsibility in him or her is of very limited application.

Acknowledgement of Harm Done

116Again, promoting acknowledgement of harm done in an offender whose ability to reason and understand was clouded by mental illness is a difficult task.

117Much criticism is levelled at the Canadian justice system for delays encountered in dealing with offenders. Courts must never give in to external pressures advocating a rush to judgment and punishment. Cooler heads must always prevail.

118In this case, I accept the expression of remorse Lindsay made to Lebel on the last day of his sentencing hearing. His sense of responsibility was both heartfelt and genuine. Indeed, his remorse was apparent almost immediately following the accident when he became aware of the grave injuries Lebel suffered.

Proportionality

119Dangerous operation of a motor vehicle causing bodily harm is a most serious crime. It involves the abuse of the privilege of driving. Too often, it results in significant injuries suffered by innocent users of the highway, or passengers within the offender's vehicle.

120Generally, the punishment must fit the crime.

121The degree of responsibility of the mentally ill offender requires nevertheless a more nuanced approach. His or her moral blameworthiness must be closely assessed.

Aggravating Factors

122I find the following circumstances to be aggravating features of the crime committed by Lindsay:

a) the deliberate decision to choose a method of suicide which endangered others,

b) the unacceptable risk to which he exposed Lebel and other users of the road in carrying out his plan, and

c) the ensuing, significant injuries suffered by Lebel, which were caused by the collision Lindsay brought about.

Mitigating Factors

123I consider the following to be mitigating in respect of the offence perpetrated by Lindsay:

a) his genuine expression of remorse almost immediately following the collision and continuing to the present day,

b) his general state of ill mental health at the time he committed the offence,

c) his attempts at seeking medical assistance for his suicidal ideation and disordered thought processes prior to the offence,

d) his willingness to continue assessment, treatment and counselling for his diagnosed psychiatric conditions, and

e) his intention to plead guilty from an early stage of his criminal prosecution.

Parity

124While acknowledging that no two cases are the same, courts seek to impose like sentences for similar offenders based on the commission of near equivalent offences.

125Closest on its facts to the case before me is a decision rendered by my brother judge, Guay J., in R. v. Spencer, 2019 ONCJ 945.

126In Spencer, the offender drove a pickup truck head on into an SUV. The collision occurred as a result of the deliberate attempt by the offender to commit suicide. His intended target was a transport trailer.

127The driver of the transport trailer avoided impact with the offender's pickup, but the unsuspecting occupants of the SUV behind the 18 wheeler were not so fortunate.

128The driver of the SUV was badly injured. His femur was broken. Twenty-three of his ribs were fractured. Those injuries led to a serious infection from a laceration to his bowel. As a consequence, he faced a further, life-threatening surgery.

129His wife of 50 years, a passenger in the SUV, was killed instantly in the collision.

130His son, another passenger in the SUV and a medical doctor, suffered serious injuries as well. His pelvic socket was broken. His right hand was badly hurt. The nerves in his right leg and foot were damaged. His overall mobility was gravely compromised. His manual dexterity, required to perform his medical duties, were quite negatively impacted. Indeed, the pain he experienced from the collision had the potential for being permanent.

131A forensic psychologist, who testified at the offender's sentencing hearing, opined that Mr. Spencer was suffering from a major depressive episode at the time of the incident. He concluded that the offender's thinking was impaired.

132The forensic psychologist's prognosis was that the offender had apparently dealt with his depression post-collision. The psychologist assessed his risk of recidivism as low, but could not rule out completely the possibility for further offending.

133Guay J. reviewed extensively a body of case law where courts have found dangerous driving to have arisen due to mental illness. In commenting upon this rare, subcategory of 'suicide' driving cases, he observed at paragraph 18:

"While such cases are not numerous, the courts have not been reluctant to denounce and sanction those causing such accidents in the most serious terms. Harsh consequences are visited on offenders to the extent that their actions were deliberate and hazardous to others using the road or finding themselves in the vicinity of their dangerous driving conduct."

134Further, at paragraph 49, upon a comprehensive assessment of the applicable purposes and principles of sentencing as set out in sections 718 to 718.2 of the Code, Guay J. commented:

"Whatever it was that was ailing [the offender], it did not justify his recklessness in targeting an unsuspecting tractor-trailer driver and others on the highway when he decided to use the company truck to kill himself."

135Guay J. referred to the language used in the British Columbia Supreme Court in R. v. Brewer, 2014 Carswell BC 1700, where Romilly J. wrote at para. 46:

"... Sentences imposed must recognize that driving offences are true crimes which cause grievous injuries as well as lifelong harm for victims and their families. Offenders convicted of driving offences should therefore be dealt with accordingly. Real people suffer or have to live without their loved ones because of driving offences ..."

136Guay J. went on to impose a period of custody of 15 months. He prohibited the offender from driving for one year under section 259(2) of the Code. He also placed the offender on a period of probation for three years, one of the terms of which was to restrict the offender's operation of a motor vehicle to employment purposes following the expiry of his driving prohibition. Guay J. required the offender to submit a sample of his DNA to the authorities. Lastly, His Honour imposed a 10 year weapons prohibition.

Conclusion

137Sadly, nothing I impose in the way of a criminal sanction will ever restore Lebel to his former self. The man he once was, he will never be again. His life changed forever in an instant.

138Lebel's sacrifice, in my eyes, makes him a hero. In that split second he had to react, he put himself in harm's way. Rather than maintain his lane and proceed straight ahead, he steered away. His first, selfless instinct was to avoid the oncoming motorist, Lindsay.

139Had Lebel chosen self-preservation instead of saving another, grievous bodily harm, if not sure death, would have ensued for Lindsay. In a cruel irony, Lebel was the one who ended up with permanent, and perhaps lifelong injuries. To this day, he is in pain. But both Lindsay and Lebel are with us today and alive because of Lebel's quick reaction to the danger he met on the road.

140Lindsay must be held accountable for the offence he committed. He must be punished for the risk he ran that not he alone, but others, could be harmed or killed when he chose to drive his vehicle at someone else in the hope of ending his life. To this extent, general deterrence and denunciation as sentencing principles have application to this case. In effect, they demand that a message be sent that society will not tolerate a motorist driving his or her vehicle at another in an act of kamikaze. They require that Lindsay be deprived of his liberty as a result.

141In short, no one should ever be subjected to the threat of harm a suicide driver poses.

142Tkachuk is readily distinguishable on the facts of this case. The Alberta Court of Appeal either specifically found or inferred on the evidentiary record put before it that the offender "... deliberately intended to kill, or at least inflict life threatening injuries on one or more people while attempting to commit suicide".

143I make no such finding or inference. Lindsay wanted to bring about solely his own death. He picked a far larger and heavier vehicle with which to collide. How he managed to escape death or serious injury is mainly attributable to Lebel's heroic efforts to prevent his tractor trailer from smashing into Lindsay's SUV head on.

144In that critical moment, Lindsay's mind was not on killing or harming anyone else. His actions however ran the unacceptable risk of causing harm or death to others. That is why he must be punished.

145I cannot and will not lose sight of the fact that Lindsay was at the depths of despair when he deliberately drove into Lebel's path. He was bent on self-harm. He was not capable of thinking straight. He was mentally ill.

146The moral blameworthiness of Lindsay's conduct, when cast in this light, is much less than that of the lucid driver who decides senselessly to endanger other users of public roadways.

147Due emphasis must be placed on restraint and rehabilitation. Lindsay is a first time offender. His prospects for becoming a productive member of society in future are high, provided he continues to follow all treatment and counselling recommendations made by his doctors and therapists.

Incarceration

148Having considered all of the applicable purposes and principles of sentencing set out in the Code, I shall impose upon Lindsay a period of custody of 9 months. I will endorse his Warrant of Committal to recommend service of his sentence at the St. Lawrence Valley Correctional and Treatment Centre in Brockville to permit him to continue to access mental health care.

Driving Prohibition

149To promote the greatest sense of responsibility in Lindsay for the nature of the crime he committed, I shall prohibit him from operating a motor vehicle on any road, street, highway or public place anywhere in Canada for the next 7 years.

150In R. v. Coholic, 2019 ONCJ 42, O'Marra J. aptly observed at para. 32 that:

"... It is ... permissible to exercise judicial restraint and lower an otherwise appropriate jail sentence by increasing the driving prohibition."

DNA

151Under authority of s. 487.051 of the Code, I will require Lindsay to provide a sample of his DNA to the appropriate authorities forthwith.

Weapons Prohibition

152Under s. 109 of the Code, I will impose a 10 year weapons' prohibition upon Lindsay.

Restitution

153Lindsay shall pay the sum of $2500.00 to John Alexiou for the readily ascertainable damages caused to his property – the cost of a replacement fence and house repairs.

Probation

154I shall place Lindsay following his release from custody on a period of probation for 3 years on the statutorily imposed conditions, and in addition, the following:

a) report to a probation officer within 48 hours of your release and thereafter as required;

b) reside at a residence approved by your probation officer and not elsewhere;

c) attend for any assessment and counselling recommended by your probation officers for anger management and mental health; and

d) do not have contact directly or indirectly with Jacques Lebel.

Final Conclusion

155I wish to thank counsel for their helpful submissions and expansive review of the law.

Dated: October 19, 2020

_________________________________

March, M.G., J.