R. v. Robertson, 2022 ONCJ 240

ONTARIO COURT OF JUSTICE

DATE: May 16, 2022

COURT FILE No.: Brampton 20-8221

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRADY ROBERTSON

REASONS FOR SENTENCE

Before: Justice Caponecchia

Reasons Released: May 16, 2022

Counsel: P. Quilty, for the Crown C. Bottomley and M. Quenneville, for the accused B. Robertson

CAPONECCHIA J.:

Introduction

1Brady Robertson pled guilty to four counts of dangerous driving cause death. ¹ After a streamlined trial, s. 8 Charter motion ² and a constitutional challenge to the per se limits for tetrahydrocannabinol (THC), ³ he was found guilty of four counts of causing death while having more than 5 nanograms (ng) of THC per milliliter of blood in his body within 2 hours of ceasing to operate a motor vehicle. Mr. Robertson was also found guilty of dangerous driving in relation to a different collision two days earlier. ⁴

2The parties are far from agreed on the appropriate sentence.

3The Crown is seeking a 23-year jail sentence, less pre-trial custody, an order delaying eligibility for parole pursuant to s. 743.6(1) of the Criminal Code of Canada, a lifetime driving prohibition and an order requiring the offender to provide a sample of his blood for the national DNA data bank.

4The defence submit the appropriate sentence is one of 7 years jail, less pre-trial custody. The defence opposes any order delaying Mr. Robertson’s parole eligibility and submits a driving prohibition of 10 years in addition to any jail term is appropriate. The defence does not oppose the DNA order requested.

The Governing Principles of Sentencing

5Sentencing is highly discretionary. Judges have no set formula to follow in determining the appropriate sentence. A court must balance a host of relevant factors concerning the offence and the offender to fix a sentence that best accords with the purpose, objectives, and principles of sentencing.

6The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. ⁵

7Achieving that purpose requires the court to impose just sanctions that reflect one or more of the traditional sentencing objectives. These include denunciation, general and specific deterrence, separation of offenders from society where necessary, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community. ⁶

8The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. ⁷ In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission. ⁸

9The parity principle requires that a sentence also be like those imposed on similar offenders for similar offences committed in similar circumstances. ⁹ That said, if the personal circumstances of the offender are different, different sentences will be justified. ¹⁰

Background of the Offender

10Mr. Robertson was 20 years old at the time he committed the offences. He was single, unemployed, and living with his aunt. His childhood was marked by disadvantage: abandonment, dislocation, poverty, and both of his parents suffered from addiction.

11His parents separated when he was six months old. Between the ages of two to nine he lived with his father and his grandparents’ in Alberta. At one stage as a child, he lived in a trailer with 12 people.

12Mr. Robertson’s mother left Alberta when he was four years old, at the time she was addicted to drugs and suicidal.

13His father suffered from alcoholism and was in and out of Mr. Robertson’s life.

14Mr. Robertson’s childhood included sexual abuse by a friend of the family. By the age of seven Mr. Robertson had attended seven different schools.

15When he was nine years old his mother returned to Alberta with her partner and Mr. Robertson went to live with her and his sisters. Left unsupervised, he would leave the home at all hours and started to get into trouble. When he was 11 years old, he learned his mother’s partner had sexually abused his sisters and his mother separated from his stepfather. His parents reconciled briefly before his father left them.

16Mr. Robertson started using drugs at a young age. He began using marijuana at the age of 11 and cocaine and methamphetamine by the age of 13. At the age of 12 Mr. Robertson was first charged with theft and began to affiliate with negative influences.

17When Mr. Robertson was approximately 14 years old, his mother sent him to live with his uncle in Ontario for a year and a half. He continued to struggle. He was suspended monthly and was returned to live with his mother out west. He left to go live with a friend, where he began to use drugs more heavily and sell them to support his addiction.

18At the age of 15 Mr. Robertson returned to Ontario. He continued to skip school to do drugs. By the age of 16 he was addicted to Xanax. He reports consuming approximately 40 pills a day. He eventually stopped going to school when he was 16, got different jobs in mechanic garages and proceeded to use cocaine for two years.

19In his late teens he became involved in a romantic relationship, during which time he was able to maintain his sobriety for six months. In March 2020 he stopped working and turned back to drugs. He reported feeling depressed and using drugs as an escape. He has experienced seizures from his drug use that required hospitalization.

20Seventeen letters of support were submitted on Mr. Robertson’s behalf from his mother, grandmother, sister, aunts, cousin, girlfriend, and friends. They describe Mr. Robertson’s difficult childhood and history with addiction. They also report he can be loyal and generous towards those he cares about. His aunt Jane, with whom he has lived, reports that Mr. Robertson is an important part of her family’s life. Her three children think of him as a big brother.

21There is no information before this court that Mr. Robertson has ever sought or received counselling for his addiction to drugs or any mental health issues. He has had thoughts of suicide since committing the offences before the court.

22It is an understatement to say that Mr. Robertson is in need of significant rehabilitation.

Gladue Principles

23Sections 718.2 (e) of the Criminal Code requires a court impose a sentence which takes into consideration the principle that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

24A Gladue Report confirms that Mr. Roberson is of mixed ancestry. He is of Irish ancestry on his paternal side and Quebecois French and Metis ancestry on his maternal side. Mr. Robertson’s mother is a member of the Aboriginal Community of Manawaki and traces her indigenous ancestry through her paternal side. Her grandmother lost her status when she married a white man. His mother has not been in touch or lived in her traditional territory. She reports that she is still trying to learn about her family’s history.

25Mr. Robertson was not raised with Indigenous culture or heritage. He only learned about his Metis background in the last several years and is interested in learning more about his heritage.

26The Supreme Court of Canada has held that there need not be a direct link between an offender’s circumstances and the offences committed. ¹¹ I am required to determine the degree to which Mr. Robertson’s unique circumstances related to his background played a part in bringing him before the court. ¹² I am satisfied that Mr. Robertson’s difficult and disadvantaged upbringing, which includes the classic characteristics of inter-generational deprivation, neglect, trauma, and poverty, explains in large measure how he finds himself before the courts and his offending conduct.

27I agree with the defense submission that Mr. Robertson’s moral blameworthiness is less than that of an offender who has had every advantage in life.

Aggravating Factors

1 Victim Impact

28The negative effect of a crime on its victims is always an important consideration in sentencing. ¹³ The Criminal Code directs the court to specifically consider evidence that the offence had a significant impact on the victim. This includes the impact on their personal circumstances and health. ¹⁴

29In this case the Crown tendered 75 victim impact statements from family, friends and neighbors of the deceased, Karolina, Klara (six years old), Lili (three years old) and Mila Ciasullo (one year old). The Crown also tendered seven victim impact statements from police that detail the post-traumatic stress they have experienced as a result of their work at the scene. I have considered them all. It is an understatement to say that the impact of the offences committed on June 18, 2020 is profound.

30The Ciasullo family: Michael Ciasullo stood before this court while his friend read out his Victim Impact Statement. Mr. Ciasullo appeared both physically and emotionally unwell. He describes himself as a shell of who he once was. He shared the details of the unbearable pain he lives with as a result of losing his entire family. The trauma has been overwhelming. He experiences nightmares and panic attacks. He explains that sometimes he wishes he would not wake up. His sister, Connie Ciasullo, detailed the pain and grief that she and her whole family have endured as a result of having to lay to rest four members of their family all at once. In addition to her grief, Miss Ciasullo described what it is like watching her brother and her mother suffer.

31Karolina Ciasullo’s sister: Anna Martin described in poignant detail the toll that the loss of her only sister and three vibrant nieces has taken. She shared a strong bond with her sister and her nieces. As did her two sons. Their death has affected every aspect of her family’s life. Mrs. Martin’s husband described the hole left in their family, how his wife has changed, and the toll it has taken on their relationship.

32Karolina Ciasullo’s parents, Klara, Lili and Mila’s grandparents: They describe the immense hole left in their life by the deaths of their loved ones. They will never enjoy the daily visits, support, and companionship of their daughter, nor the love and affection of their three granddaughters. They live with the trauma that comes with knowing that their daughter and granddaughters died on their way home from a visit with them.

33Friends and Neighbors: Numerous close friends and neighbors describe their loss. Karolina Ciasullo was a caring, thoughtful friend to many people. Friends of the couple struggle to be able to provide support and maintain a relationship with Mr. Ciasullo because so much of their time spent together used to revolve around shared experiences with their partners and children. Many parents have struggled to explain the loss of Klara, Lili and Mila to their own children who were friends with the girls.

34Colleagues: Karolina Ciasullo’s colleagues describe the loss to their teaching community and her students. Jennifer Neville Lake was amongst Karolina Ciasullo’s work colleagues. Mrs. Neville Lake, who lost her two little boys, her little girl and father due to the actions of an impaired driver in 2015 explained how the events of June 18, 2020 were triggering for her and caused her emotional trauma. ¹⁵

35First Responders: Seven Peel Regional Police officers submitted victim impact statements. One Sergeant described the trauma associated with his memories of watching his fellow officers cry as they performed chest compressions on the children on the roadside in full view of the public. One Detective Sergeant retired at the conclusion of the investigation and requires the ongoing assistance of a mental health professional to treat his post-traumatic stress, which has been totally debilitating. He described the recurring images he has of the little girls at the scene, Klara in particular, and having to inform Michael Ciasullo of the death of his family. Another Sergeant, who pulled Mr. Robertson out of his burning car and reassured him, also describes the trauma he experienced as a result of watching 6-year-old Klara turn lifeless before him as he tried to comfort her. This officer has been unable return to his regular duties.

36In summary, the impact of the crimes Mr. Robertson committed has been monumental to the victim’s family, friends, and the broader community.

2 Driving Record

37An offender’s driving record is relevant in a sentencing proceeding such as this one. ¹⁶

38Mr. Robertson amassed 15 driving convictions over the two-and-half-year period prior to committing the offences before the court in June 2020. His driving record consists of the following:

1. Speeding 75km/60km zone January 12, 2018
2. Fail to Produce a Driver’s Licence January 12, 2018
3. Fail to Produce a Driver’s License April 13, 2018

On May 1, 2018, Mr. Robertson’s licence was suspended for unpaid fines.

4. Fail to share road when overtaking October 15, 2018
5. Racing/Stunt Driving November 28, 2018
6. No Validation on Plate February 27, 2019
7. Drive While Licence Suspended February 27, 2019

On February 27, 2019, Mr. Robertson’s licence was suspended for driving while suspended.

8. Careless Driving December 2, 2019
9. Fail to have insurance car December 2, 2019
10. Fail to surrender permit for vehicle December 2, 2019
11. Use plate not authorized for vehicle December 2, 2019
12. Drive While Licence suspended December 2, 2019

On December 2, 2019, his licence was suspended for driving while suspended.

On December 16, 2019, his licence was suspended based on his demerit points.

13. Use plate not authorized for vehicle January 10, 2020
14. Fail to have insurance car January 10, 2020
15. Drive While Licence suspended January 10, 2020

On January 10, 2020, his licence was suspended for driving while suspended.

39Mr. Robertson’s driving record is evidence that he repeatedly and frequently drove irresponsibly. ¹⁷ It demonstrates that Mr. Robertson’s driving on June 16 and June 18 were not isolated events. None of the previous penalties or encounters with police served to deter him. ¹⁸ Three of the entries, failing to share the road, stunt driving and careless driving, demonstrate that Mr. Robertson had little regard for the safety of others on the road. His two entries for driving while suspended indicate to me that he had no regard for court orders. His eight entries related to complying with basic licencing and registration requirements indicates to me a fundamental lack of care for adhering to the simplest of driving rules.

40The 15 entries on his driving record were accumulated over a relatively short period of time, the last entry only six months before the offences before the court. I am satisfied his driving record demonstrates that Mr. Robertson thought he was above complying with the laws that relate to the privilege of driving.

3 The Driving

41Mr. Robertson’s driving on both June 16, 2020 and June 18, 2020 was egregious. On both days his driving was intractable, he eluded two different police officers.

• June 16, 2020

42I found that on June 16, 2020 at approximately 8:25PM Mr. Robertson failed to stop at a four-way intersection and proceeded to crash into barriers on a sidewalk outside a business, on the opposite side of the intersection. Moments before he crashed into the barriers, pedestrians can be seen on video walking past the very location he crashed into. When he travelled through the intersection his head was swung back. He had no business being behind the wheel of his car in the condition he was in. After he crashed and was jolted out of his slumber, he did not stop to exit his car and take responsibility for the obvious property damage he caused. Instead, Mr. Robertson fled the scene to avoid responsibility, despite two concerned citizens yelling for him to stop. Mr. Robertson furiously spun his wheels, reversed his car, and sped away. He reversed in a frenzy, with a citizen clearly standing at his open passenger door and without any regard for anyone else going through the four-way intersection. Having been undeterred by the literal and figurative “wake up call,” approximately 20 minutes later he continued to travel at excessive speed. He veered out of his lane and into the lane for oncoming traffic and drove on the shoulder of King St. PC Babanca was unable to catch up to Mr. Robertson while travelling 130 km/hr in the 60km zone. The officer stopped pursuing Mr. Robertson because it was unsafe. The fact that no one was hurt on this day at either location was pure happenstance. ¹⁹

• June 18, 2020

43The collision on June 16, 2020 did not deter Mr. Robertson from engaging in risk taking behavior two days later. I found that on June 18, 2020 Mr. Robertson was behind the wheel of a car in the middle of the day after having consumed cannabis earlier the same morning. For 2.6km prior to the collision he drove through residential areas at a high rate of speed while Constable Omar tried to catch up to him. One video surveillance depicts Mr. Robertson driving through a stop sign. Constable Omar was unable to catch up to Mr. Robertson while travelling as much as 105km/hr. Mr. Robertson was travelling at least 134km/hr in a 70km zone when he drove through the intersection with out stopping for a red light and crashed into the vehicle that Mrs. Ciasullo and her three little girls were in. Mr. Robertson used the lane designated for left turns to get around the vehicles stopped ahead of him for the red light. A hydro pole fell on Mrs. Ciasullo’s vehicle. Two other vehicles were damaged. The car Mr. Robertson was driving caught on fire. Exhibits 18-23 depict the trail of devastation caused by Mr. Robertson on June 18, 2020.

44I have avoided calling both crashes an "accident". That is because both were anything but an accident. Both crashes were crimes, not accidents. Both crimes were 100% avoidable had Mr. Robertson had any regard for the lives and safety of others. On June 16 he drove notwithstanding his ability to do so was obviously compromised. Two days after crashing into sidewalk barriers while in a slumber, he got behind the wheel of his car after having consumed cannabis earlier in the morning. On both days he displayed a flagrant indifference to the possibility that someone could get hurt or die. That is the essence of the offences that I am sentencing him on.

45Furthermore, on both June 16 and June 18, 2020 Mr. Robertson was driving without a valid driver’s licence. He was subject to two separate licence suspensions under the Highway Traffic Act. This is a statutory aggravating fact, pursuant to s. 320.22(g).

46On both days Mr. Robertson was driving with no car insurance.

47On both days he did not have a valid licence plate attached to the front of his vehicle. The plate affixed to the rear of his vehicle on June 18, 2020 did not belong to the car he was driving.

48Mr. Robertson failed to register the car he was driving in his name after he purchased it on June 6, 2020.

49Mr. Robertson’s cavalier attitude towards his responsibilities as a driver on both days calls out for a significant sentence that denounces his actions.

4 Drug Consumption

50The evidence proved that Mr. Robertson had two recreational drugs in his blood when he got behind the wheel of his car on June 18, 2020: THC and flubromazolan.

51The toxicologist was unable to say whether the 21 ng/ml flubromazolan in his blood drawn 45 minutes after the collision at 1PM was consistent with recent use.

52Mr. Robertson’s THC levels prove he had consumed cannabis recently. His THC level at 1:00PM and 3:21PM were 40ng/ml of blood (+/- 3 ng/ml) and 15 ng/ml blood (+/- 1ng/ml) respectively. I found that Mr. Robertson consumed an unknown quantity of cannabis between 7AM and 9AM on June 18, 2020. He had eight times the legal limit of THC in his blood within two hours of operating a motor vehicle.

53Mr. Robertson’s decision to drive in the middle of the day on June 18, 2020 with two recreational drugs in his blood and after having consumed cannabis earlier in the morning, is risk taking behaviour that is highly aggravating. It is especially so given he caused a collision two days earlier while in a physical state that obviously compromised his ability to drive safely.

5 Drug Paraphernalia

54The presence of drug paraphernalia in a car is an aggravating factor. The Court of Appeal has described it as evidence of irresponsibility. ²⁰

55In this case, Mr. Robertson had more than drug paraphernalia. He had readily accessible drugs within arm’s reach while he drove. Police located cannabis and four pills in the glove compartment of his vehicle. One of the pills was tested, it was fentanyl.

Other Evidence Relied on By the Crown

56The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge. ²¹

57Crown counsel filed an affidavit of a crime analyst employed by Peel Regional Police, Edel Randall. The affidavit sets out the number of driving offence charges laid by Peel Regional Police between 2011 through to 2021. The Crown also filed offence-based statistics for both the Region of Peel and Ontario as whole.

58I am unable to conclude from the affidavit or statistics whether driving offences are on the increase in Peel Region because the materials do not include information necessary to interpret the raw numbers provided, such as changes in population figures, the number of drivers checked for sobriety during the relevant years, or any change in police enforcement during the pandemic.

59The materials do however make clear, that driving offences remain a persistent problem in Peel Region and occupy a great deal of judicial resources. While this is not an aggravating factor, it underscores the need to impose a sentence that denounces and deters irresponsible drivers who commit criminal offences. This is especially so after the legalization of cannabis in 2018.

Mitigating Factors

1 Criminal Record

60An offender's prior criminal record, or the absence thereof, is always a factor entitled to some weight in a sentencing context. ²²

61Mr. Robertson does not have an adult criminal record. On December 4, 2018, he received a conditional discharge and 12 months probation for two unrelated offences. He has six youth dispositions between 2016 and 2017 for unrelated offences for which he was sentenced to probation on each occasion.

62The sentence I imposed will be his first sentence of incarceration.

2 Youthful First Time Adult Offender

63Mr. Robertson is a youthful offender. At the time of his offences, he had just turned 20 years old.

64The Court of Appeal has made it clear that, ordinarily, when sentencing a youthful first offender, the focus should be on specific deterrence and rehabilitation. An offender’s youth deserves consideration as a mitigating factor that counts towards using the blunt instrument of incarceration with considerable restraint. ²³ These objectives usually favour a non-custodial sentence. ²⁴ That principle, however, has its limits. It does not apply to very serious offences and offences involving violence. ²⁵ In other words, where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. ²⁶

65In two relatively recent dangerous driving cases, it was argued on appeal that the sentencing judge erred in imposing a sentence on a youthful first offender to send a message of deterrence to the community. In the first, the Court of Appeal held that notwithstanding the appellant’s youth and lack of a criminal record, the sentencing objectives of general deterrence and denunciation were paramount because of the seriousness of the appellant’s offence, the aggravating factors of her previous poor driving record and the devastating harm caused to the victims of the accident. ²⁷ In the second, the appellate court reinforced the same message:

This was a serious accident that will have devastating lifelong physical and psychological impacts on its victims. The appellant’s counsel on sentencing acknowledged that specific and general deterrence would play a role in the sentence. This offence is frequently committed by first-time offenders and young persons, like the appellant, of otherwise good character. Particularly because of this factor, it is essential that courts send a message to young people, to protect both them and the public from the serious consequences of such conduct. Denunciation and deterrence must be a paramount consideration. ²⁸

3 Guilty Plea & Remorse

66At the outset of these proceedings Mr. Robertson pled guilty to four counts of dangerous driving causing death. Mr. Robertson is entitled to credit for his guilty pleas, even in the face of a strong Crown’s case for dangerous driving.

67Mr. Robertson pled not guilty to the remaining charges which he has been found guilty of. There were triable issues. Reasonable and significant admissions were made which resulted in a focused trial on the issues in dispute. Valuable court resources were spared, and he is to be credited for that too.

68Mr. Robertson addressed the court at the end of sentencing submission. He expressed remorse for his actions and the harm he caused Mr. Ciasullo, Anna Martin and their entire extended family and friends. Mr. Robertson’s expression of remorse was sincere. It merits consideration as a mitigating factor. ²⁹

4 Pre-Trial Custody & Duncan Credit

69Section 719(3) gives the court discretion to credit Mr. Robertson for the time he has spent in pre-trial custody. Section 719(3.1) prohibits me from affording him more than one and one-half days credit for each day spent in custody.

70Routinely called “Summers” credit, after the case by the same name, "Summers" credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. It is statutorily capped at 1.5:1. It is wrong to think of "Summers" credit as a mitigating factor. ³⁰

71A deduction for time spent in pre-trial custody is not only routine, but fair, because it is time that does not count towards remission and because the conditions in holding facilities are widely understood as harsher than in institutions where individuals are ultimately placed to serve their sentences. Resources and programming in pre-trial detention facilities are either limited or nonexistent compared to reformatories and penitentiaries -- conditions only made harsher by the pandemic.

72In this case, Mr. Robertson was detained after a bail hearing. He was arrested on June 24, 2020. The parties agree that as of today he has spent 692 days, or 22 months and 23 days in pre-trial custody. The parties agree that Mr. Robertson should be given credit at a rate of 1.5 and that 34 months should be deducted from any sentence I impose. I agree.

73The defence also submits that Mr. Robertson should be given “Duncan” credit, referring to a case by the same name, which recognizes that an offender should be given credit for time spent in extra ordinary harsh conditions, such as during the pandemic. Unlike “Summers” credit, "Duncan" credit is not a deduction from the otherwise appropriate sentence, but it can be a mitigating factor to be considered with the other mitigating and aggravating factors. It cannot justify the imposition of a sentence which is inappropriate, having regard to all the relevant mitigating or aggravating factors. ³¹

74Mr. Robertson’s pre-trial detention was extraordinarily harsh in more than one way. He had difficulty consistently receiving the medication he required for anxiety and depression. He reports having been assaulted by a guard and on one occasion a guard encouraged inmates to assault him. It was also extraordinarily harsh because Mr. Robertson spent 181 days ³² in full lock down, and five days in partial lockdown. Full lockdown means Mr. Robertson was confined to his cell for 24 hours a day. ³³ The records indicate the reasons for the lockdowns: staff shortages, outbreaks and isolation measures imposed by the local public health unit. There were covid outbreaks in the units where Mr. Robertson was kept. Mr. Robertson contracted covid.

75I am persuaded that the conditions in which Mr. Robertson served his pre-trial were extraordinarily harsh at times and I consider them to be a mitigating factor.

76The defence invited me to go further and find that the lockdowns experienced by Mr. Robertson are representative of a chronic underfunding problem at the detention centers. I am not prepared to make such a finding on the record before me.

Judicial Precedents, Parity and Proportionality

77Section 718.2 (b) of the Criminal Code requires that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." That provision codifies the long-established sentencing principle of parity, which, as noted, is closely tied to the principle of proportionality. Proportionality is a function of the circumstances of the offence and offender, in comparison to sentences previously imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate." ³⁴

78The defence and the Crown both submitted cases with various similar and distinguishing features to Mr. Robertson’s offences. The following is a summary of relevant binding appellate authorities:

a) Single-death collisions

79In R. v. Boukchev, [2003] O.J. No. 3944 (C.A.) a sentence for dangerous driving cause death and leaving the scene of an accident was increased on appeal from 21 months to five years (less 9 months pre-trial custody). While speeding the offender ran two red lights and dragged the 20-year-old victim. He had a “horrendous” driving record and showed flagrant disregard for prior license suspensions and driving prohibitions.

80In R. v. Ramage (2010), 2010 ONCA 488, 265 O.A.C. 158 the court upheld a four-year sentence imposed after a trial on an impaired driver with an exemplary background and whose driving had resulted in the death of one person and debilitating injuries to another.

81In the case of R. v. Niganobe, 2010 ONCA 508 a female Aboriginal offender was sentenced to five years imprisonment for impaired driving causing death and impaired driving causing bodily harm. The appellant had a prior criminal conviction for impaired driving. This appellate court did not interfere with the sentence.

82In R. v. Junkert, 2010 ONCA 549, [2010] 103 O.R. (3d) 284 the offender drove at a high rate of speed and failed to negotiate a turn in a residential neighborhood. His car went onto the sidewalk, where it struck a car and a lamp pole before re-entering the roadway. During its travel, the car struck and killed a jogger. The offender's blood alcohol concentration at the time was 130 mg/ml. He was convicted after trial of both impaired driving and dangerous driving. He was a first offender. A sentence of five years for both offences and a ten-year driving prohibition was upheld on appeal.

83In R. v. Bush, 2012 ONCA 743, 112 O.R. (3d) 626, the impaired driver killed one person. He pled guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified, and breach of an undertaking to abstain from the consumption of alcohol. A global sentence of 12-years imprisonment was upheld.

84In R. v. Purtill, 2013 ONCA 692, this court refused to interfere with a six-year sentence for criminal negligence causing death and bodily injury and impaired driving causing death and bodily injury. The impaired driver had caused the death of a five-month-old infant and serious injuries to his mother. He had one prior dated conviction for impaired driving.

85In R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, an intoxicated motorcyclist lost control of his bike and crashed, killing his rear-seat passenger. He pled guilty to criminal negligence cause death. His blood alcohol concentration was 160mg/100ml. He was a self-admitted "binge alcoholic." The court did not interfere with the sentence of six years' imprisonment.

86In R. v. Stevens, 2017 ONCA 686, the court upheld a six-year sentence for impaired operation of a vehicle causing death and dangerous operation causing death for a female offender who had been driving with between 70-110 mg of per 100ml of alcohol in her blood on a country road.

87In R. v. Eden, [2021] O.J. No. 5347 (CA) the offender pled guilty to having operated her mother's motor vehicle and colliding with another vehicle ahead of her that had stopped at an intersection. The offender proceeded to strike a motorcycle heading in the opposite direction. The offender fled on foot and was arrested a short time later about two kilometres from the accident. The offenders blood alcohol readings at the time of the accident in a range between 70 milligrams to 135 milligrams of alcohol per 100 millilitres of blood. The offender was estimated to have been speeding approximately 113km in a posted 80 km zone. A five-year sentence was upheld.

88In R v Lewis, 2021 ONCA 597 a total of eight years incarceration for impaired driving causing death, criminal negligence causing one death and breach of probation was upheld. The offender was found guilty after a trial. The facts included a street race in rush hour with speeds of 130 kph in a 50 kph zone. The offenders blood alcohol concertation was between 83-113 milligrams percent. Mr. Lewis also had a related 2014 record for dangerous driving while fleeing police and a provincial record with seven speeding convictions.

89In R. v. Romano, 2021 ONCA 211, [2021] O.J. No. 1858 (C.A.) a police officer who was driving 115km/ in a 60/km zone in order to catch up with his surveillance team was convicted after trial (and two appeals) and sentenced to 8 months jail for dangerous driving cause death.

90Most recently in R. v. Durani, [2022] O.J. No. 142 the offender was convicted of criminal negligence causing death while street racing and failing to remain. He participated in a high-speed race on a busy city street during rush hour resulting in the death of a jogger. Although relatively young, the appellant was not a first offender and the pre-sentence report indicated he had no insight into his behavior. The sentence of five years imprisonment (less 1 year for pre-sentence custody) was upheld on appeal.

b) Collisions resulting in two deaths

91In R. v. Mascarenhas (2002), 60 O.R. (3d) 465 (C.A.), a 12-year jail sentence was reduced to 10 years. However, the nine-year sentence for causing the deaths of two people was upheld. The driver pled guilty. He struck two pedestrians while driving with a blood alcohol level between .339 and .353. The offender was 46-years old and had three previous impaired driving convictions. He also received a consecutive sentence of one year for breaching a term of his bail prohibiting from driving.

92A six-year sentence was upheld on appeal for two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm in R. v. Regier, 2011 ONCA 557, 16 M.V.R. (6th) 20. Two young people were killed, and the driver of another vehicle seriously injured. The driving was described as "aggressive" and his maneuvering as "grossly unsafe". The appellant had a lengthy driving record involving 25 Highway Traffic Act convictions over a period of 28 years and was charged with careless driving in another incident near the place of this accident on the same highway within two years following this accident. The court in Regier quoted a 2003 endorsement by the Court of Appeal, in which the court observed that "sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public.” ³⁵

93In R. v. Lacasse, [2015] SCC 64 the 20-year-old offender pled guilty to having caused the death of his two passengers while impaired. He lost control of his car while driving 130/km in a 75km zone down a country road. The sentence of six and a half years was upheld.

94R. v. Altiman, 2019 ONCA 511, [2019] O.J. No. 3216 (CA) a 31-year-old Indigenous person pled guilty to having caused the death of two individuals by driving with a high blood alcohol concentration through a red light at a high rate of speed. On appeal his sentence was reduced from 10 years jail to seven. Mr. Altiman pled guilty, had no criminal record or traffic record and was of previous good character.

c) Collison resulting in three deaths

95In R. v. Wood, [2005] 197 O.A.C. 43 (C.A.), the offender had an extensive criminal record and pled guilty for having killed three people and injuring one while driving without a licence and with a blood alcohol level nearly twice the legal limit. The sentence of nine years imprisonment was upheld on appeal.

96In R. v. Kummer, 2011 ONCA 39 the Ontario Court of Appeal upheld an eight-year prison sentence imposed on a driver who pled guilty to three counts of impaired driving cause death, three counts of dangerous driving cause death, two counts of impaired driving cause bodily harm and two counts of dangerous driving cause bodily harm. The offender was speeding, travelling 122/km in a 70/km zone before he went through an intersection and struck a vehicle which had the right of way. The offender had no criminal record but had a significant driving record. Three young people died, including a 12-year-old boy on the way home from a hockey game.

97In R. v. Randhawa, [2020] O.J. No. 257 a sentence of seven years was imposed on an individual whose driving at high speeds in a residential area after a night of drinking caused the death of his three passengers and his own traumatic brain injury. He had approximately twice the legal limit for alcohol in his system. The appellant was 22 years old, and his passengers ranged in age from 19 to 24 years old.

d) Collisions resulting in four deaths

98There are no appellate cases from Ontario which comment on the fitness of a sentence where someone’s driving unlawfully caused the death of four people, someone’s entire family.

99Counsel made submissions with respect to the decision in R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (S.C.). A sentence of ten years was imposed on an offender who drove impaired and killed three children and their grandfather. Other than the tragic consequences in both cases, the offence and the offenders are notably different:

• In the Muzzo case the Crown sought a twelve-year jail sentence, the defence eight;
• Prior to Mr. Muzzo driving through a stop sign he was speeding; at the time of impact he was travelling 85km in a 60km zone. In Mr. Robertson’s case he was travelling almost twice the legal limit prior to impact, 134km in a posted 70km zone;
• Unlike in Mr. Robertson’s case, a medical professional assessed Mr. Muzzo to be a low risk to reoffend;
• Unlike Mr. Robertson, prior to the offence Mr. Muzzo had an established history of having lived a pro-social life and was a productive member of the community. He had completed his education and acquired a reputation for having a strong work ethic;
• Unlike Mr. Robertson, Mr. Muzzo was a licenced driver and there is no indication that Mr. Muzzo failed to comply with any licencing and registration of his vehicle;
• Unlike Mr. Robertson, there is no indication that Mr. Muzzo drove without insurance;
• At the age of 29, Mr. Muzzo had 12 highway traffic convictions over 12 years, 10 for speeding. At the age of 20, Mr. Robertson accumulated 15 highway traffic violations in the two-year period immediately preceding the offences before the court;
• Mr. Muzzo was a licenced driver; Mr. Robertson was not. Mr. Robertson was subject to two different driving suspensions at the time he committed the offences on June 16 and 18, 2020;
• Unlike in Mr. Robertson’s case, Mr. Muzzo did not cause a crash two days earlier: and
• Unlike in Mr. Robertson’s case, there is no indication that Mr. Muzzo ever attempted to evade responsibility for his actions or detection by police. Mr. Muzzo admitted he was driving at the roadside after having been cautioned and again after speaking with his lawyer.

100Having reviewed the relevant cases, I make two observations. First, there has only been a minimal increase in sentences for offenders involved in high-risk driving that resulted in death. Second, in Kummer, the Ontario Court of Appeal noted that the Ramage and Junkert cases "do not and cannot cap the sentences available for this kind of offence." ³⁶

101I would also observe that the following guidance from Supreme Court of Canada in 2015 continues to be applicable today:

1. Sentencing ranges established by judicial precedents, they do not dictate the appropriate sentence in a specific case. They are guidelines rather than "hard and fast" rules. ³⁷
2. The Ontario Court of Appeal has declined to define a set sentencing range for the crime of impaired driving causing death, acknowledging that the crime can be committed in an infinite variety of circumstances. ³⁸ The same can be said with respect to the offence of dangerous driving and driving in violation of the per se limits for drugs and alcohol.
3. Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range" must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge. ³⁹
4. There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. ⁴⁰
5. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. ⁴¹

The Fit Sentence in this Case

102What is a fit sentence for this offender and this offence?

103The seven-year jail sentence submitted by defense does not adequately hold Mr. Robertson accountable for having unlawfully caused the death of someone’s entire family, a wife an infant, a six-year-old and three-year-old.

104The 23-year jail sentence submitted by the Crown is unprecedented. I am not persuaded that it adequately considers the mitigating features of this case or Mr. Robertson’s background.

105Mr. Robertson’s background is relevant, even in the face of such a monumental tragedy. His youth, lack of criminal record, remorse and harsh pre-trial detention are mitigating factors. This sentence will be his first custodial sentence.

106Balanced against the personal circumstances of this offender, are the circumstances of the offence. Any loss of life caused by dangerous driving due to alcohol, drugs or bad judgment is tragic because it is 100% avoidable. This one is particularly so. The victims were killed in the middle of a summer day, on their way home after playing in a pool in their grandparents’ backyard. The results of Mr. Robertson’s actions were catastrophic. The impact of the victims’ death will last a lifetime. The impact on Mr. Ciasullo cannot be overstated. Mr. Robertson must be held accountable for the consequences of his actions.

107Previous attempts to hold Mr. Robertson accountable for careless driving, stunt driving, and speeding had no effect on him. Prior driving suspensions did not keep him off the road. He was not legally entitled to drive when he committed both offences before the court. He had no insurance. He did not stop to take responsibility for the damage he caused on June 16, 2020. The collision on June 16, 2020 did not serve as a "wake-up call" to Mr. Robertson. It should have brought home to him the danger he posed to himself and others by driving when he was not fit to do so. Clearly it did not. Instead, he woke up on June 18, 2020, consumed cannabis and got behind the wheel of a car. After travelling at excessive speed for 2.6km through residential areas and reaching 134km an hour in a 70km zone, he drove around stopped cars in his way to enter a major four-way intersection on a red light in the middle of a summer day. It is difficult to accept that any person in Canada could be ignorant of the dangers of driving in the fashion Mr. Robertson did on June 18, 2020. Mr. Robertson gambled with other peoples lives on both days. The consequences were predictable, yet they did not deter him.

108The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives. ⁴²

109In this case, mindful of all the circumstances of this case, the purpose, objectives, and principles of sentencing, this court concludes that a sentence of 17 years of imprisonment is the appropriate jail sentence in all the circumstances. Credit will be given for Mr. Robertson’s pre-trial detention. The parties agree that 34 months (two years and ten months) should be credited to Mr. Roberson, with a remaining sentence of 14 years and 2 months. The sentences will be served concurrently on counts 1-4 and 6-9. As I have relied on the offence on June 16, 2020 as an aggravating factor in determine a total fit sentence, I am sentencing Mr. Robertson to a concurrent a sentence of 12 months on count 5.

110To the extent that this sentence represents a departure from the cases that have come before it, I would note that the Ontario Court of Appeal very recently recognized that trial judges may, from time to time, become frustrated with a particular approach that is developed by appellate courts. ⁴³ Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated. ⁴⁴

111In the same case, the Ontario Court of Appeal also stated:

…[M]easured expressions of that frustration may be a mechanism whereby appellate courts can become aware of the problem and, hopefully, correct it. After all, our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 22. Trial judges are likely to be the first to become aware of such changes. It may also be that the expression of that frustration by trial judges will draw the attention of those in government who may choose to legislate a correction. ⁴⁵

112Respectfully, this is one of those cases. Once again, as in the case of Kummer, ⁴⁶ there is good reason to move beyond the sentences imposed and affirmed in past cases.

113In 2000 the maximum sentence for the crime of impaired driving causing death was raised from 14 years to imprisonment for life. ⁴⁷ Since that time sentences have not increased in any appreciable way.

114More recently, the maximum sentence for dangerous driving cause death was increased from 14 years to life in 2018 with the introduction of Bill C-46, the same legislation that introduced for the first time per se limits for THC in a driver’s blood. The new per se offence also carries with it a maximum sentence of life imprisonment where death results. The penalties for both impaired driving, the per se offences and dangerous driving, all seek to prevent and punish high-risk driving activity for which the serious risk of injury to others is foreseeable.

115The increase in the maximum sentences for all three of these inherently serious driving offences shows that Parliament wanted the offences to be punished more harshly. ⁴⁸ It is also an indication that Parliament intended that they be treated equally serious. ⁴⁹ They have the same objective, to deter and hold accountable those individuals whose decision to engage in high risk driving results in the senseless loss of life.

116The public should not have to wait until four innocent members of the public are killed before the courts' repudiation of the conduct that led to the deaths is made clear. ⁵⁰ One of the first appellate cases which explicitly called for increased sentences in cases such as this one was over 35 years ago, R. v. McVeigh. ⁵¹ It too originated in Peel. It too involved the death of a child. A 14-year-old child stopped to fix their bike chain and was struck by car being driven by a 31-year-old accountant with an alcohol problem, who was travelling at excessive speed and with excess alcohol in his blood.

117The danger created by Mr. Robertson on both June 16 and 18 is not unlike that created by a person who takes control of a different weapon and walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals. ⁵²

Parole Ineligibility

118The Crown seeks an order pursuant to s. 743.6 of the Criminal Code delaying Mr. Robertson’s eligibility for parole until he has served one-half of his sentence.

119Section 120 of the Corrections and Conditional Release Act permits an offender to apply for parole after having served one third of their sentence. Parole is by no means guaranteed or automatic at this time, it is earned. The granting of parole does not amount to a reduction of the jail sentence. The offender is still serving his or her full sentence until the end of its term. Parole is an alteration of the conditions under which a sentence is served and is an integral part of the process of reintegrating offenders into a community in a way that protects the public.

120The leading case on delayed parole is the case of R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41. In that case an order delaying parole was made for a 56-year-old offender with a 30 year long criminal record who pled guilty to manslaughter for having shot and killed his 19-year-old female neighbor. The case sets out the following principles I am to apply:

1. Delaying parole should not be ordinary or routine. Nor should it be applied in an automatic manner.
2. The provision should be invoked only based on demonstrated need. It is a special, additional form of punishment. The prosecution bears the burden of proof that it is warranted.
3. The trial judge should first determine the length of the sentence based on the usual sentencing principles.
4. A judge ought only to delay parole if it is viewed as necessary in order to fulfill the objectives of denunciation and deterrence. This involves engaging in a double weighing exercise. In considering delayed parole, the judge must give priority to deterrence and denunciation as required by Section 743.6(2). Rehabilitation and other factors are subordinated.

121The issue for me to decide is whether an additional punishment is required.

122In this case the Crown relies on multiple Parole Board decisions granting parole to offenders serving sentences for driving offences which resulted in death. The Crown submits that the decisions demonstrate the frequency with which parole is granted for driving offences and a need for parole to be delayed in this case.

123I am not persuaded that previous parole decisions are relevant to the decision I must make in Mr. Robertson’s case. The Crown’s reliance on previous parole board decisions conflates the Parole Board’s function with that of the court. The Parole Board provides a valuable function in deciding safe terms under which individuals can be released into society. The Parole Board has a large volume of material with respect to the offender’s performance in the penitentiary to draw on. Their expertise and wealth of up-to-date information informs their decisions. By contrast, the decision I must make to delay parole is concerned solely with whether the principles of denunciation and deterrence require that Mr. Robertson’s parole be delayed.

124The prosecution has the burden of establishing that additional punishment is required. I was not made aware of any cases in which an order has been made delaying the parole of a youthful offender with no criminal record. Nor of any orders made in connection with individuals convicted of driving offence which resulted in death.

125In Mr. Robertson’s case the Crown has not persuaded me that it is necessary for parole to be delayed to fulfill the objectives of denunciation and deterrence. Mr. Robertson is a 21-year-old being sentenced to a significant penitentiary term. He has spent a significant amount of time in pre-sentence custody. I am satisfied that both the remaining sentence and the presentence custody advance the objectives of denunciation and deterrence for the consequences of his actions. There has been no demonstrated need for any additional form of punishment.

Driving Prohibition

126The Crown seeks a lifetime driving prohibition. The defence submits a 10-year driving prohibition is in order.

127Very brief submissions were made regarding the appropriate length for a driving prohibition in this case. The length of driving prohibitions imposed in other driving fatalities varies widely. Both counsel agree that any driving prohibition I impose should be increased by the number of years of jail imposed.

128A driving prohibition is necessary for the protection of the public. ⁵³ In this case I am satisfied that a driving prohibition of 20 years, in addition to the jail sentence is appropriate.

Conclusion

129I have decided that a fit sentence for this offence and this offender is 17 years. After deducting the 34 months spent in pre-trial custody, the sentence remaining is one of 14 years and 2 months. The sentences will be served concurrently on counts 1-4 and 6-9. As I have relied on the offence on June 16, 2020 as an aggravating factor in determine a total fit sentence, I am sentencing Mr. Robertson to a concurrent a sentence of 12 months on count 5.

130There will be 34-year year driving prohibition that commences today on counts 1-4 and 6-9.

131On consent, an in-custody DNA order will be made on counts 1-4 and 6-9.

Released: May 16, 2022 Signed: Justice Sandra Caponecchia

Footnotes

Footnotes

1. 1Pleas to counts 1-4 were entered on July 12, 2021.
2. 2Reasons Released September 22, 2021.
3. 3Reasons Released April 7, 2022.
4. 4Reasons released November 2, 2021.
5. 5Criminal Code, s. 718.
6. 6Criminal Code, ss. 718(a)-(f).
7. 7Criminal Code, s. 718.1.
8. 8R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37 [Ipeelee]; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras 40-43; R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at 546-47 [Priest].
9. 9Criminal Code s. 718.2(b).
10. 10R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 9; C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41).
11. 11Ipeelee, supra note 8, at para 83.
12. 12R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, at para 50.
13. 13R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para 179.
14. 14Criminal Code, s 718.2(a)(iii.1).
15. 15R. v. Muzzo, 2016 ONSC 2068, [2016] OJ No. 1506.
16. 16R. v. Lacasse, 2015 SCC 64 at para 80 [Lacasse].
17. 17Ibid.
18. 18R. v. Frickey, 2017 ONCA 1024 at para 6 [Frickey].
19. 19The driving was captured on a dashcam and video surveillance, see Exhibits 28 and 30.
20. 20R. v. Currie, 2018 ONCA 218 at para 10 [Currie].
21. 21Lacasse, supra note 16 at para 89.
22. 22R. v. Dobis (2002), 58 O.R (3d) 536 (C.A.), at para 28.
23. 23R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para 36-37.
24. 24R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.), at p. 377[Stein]; Priest, supra note 8 at 543-544.
25. 25Priest, supra note 8 at 543.
26. 26Stein, supra note 24 at 377.
27. 27Frickey, supra note 18 at para 5.
28. 28Currie, supra note 20 at para 11-12.
29. 29R. v. Valentini (1999), 43 O.R. (3d) 178 (C. A.), at para 82.
30. 30R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 para 50-53
31. 31Ibid.
32. 32100 full days were spent in lockdown at Maplehurst Detention Centre, 76 days were spent in full lock down at the Central North Correctional Centre.
33. 33When not in lockdown, six and a half hours are permitted outside a cell in the common areas at Maplehurst, 10 hours are permitted outside the cell at Central North Correctional Centre.
34. 34Lacasse, supra note 16, at para 53.
35. 35R. v. Boukchev, [2003] O.J. No. 3944 (C.A.) at para 6.
36. 36R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 at para 19 [Kummer].
37. 37Lacasse, supra note 16, at para 60.
38. 38Ibid at para 66.
39. 39Ibid at para 57.
40. 40Ibid at para 58.
41. 41Ibid.
42. 42Ibid at para 3.
43. 43R v Lynch, 2022 ONCA 109 at para 12.
44. 44Ibid.
45. 45Ibid.
46. 46Kummer, supra note 36, at para 23.
47. 47An Act to amend the Criminal Code (impaired driving cause death and other matters) S.C. 2000, C.25; Lacasse, supra note 16, at para 62.
48. 48Lacasse, supra note 16, at para 7.
49. 49R v Suter, 2018 SCC 34, [2018] SCJ No 34 at para 26.
50. 50R v McVeigh (1985), 11 O.A.C. 345.
51. 51Ibid.
52. 52R. v. Ramage, 2010 ONCA 488 at para 76.
53. 53R. v. Frickey, 2017 ONCA 1024 para 4,10.