ONTARIO COURT OF JUSTICE
BETWEEN:
His Majesty the King
— AND —
Shawn INGRAM
Before Justice of the Peace Kevin J.A. Hunter
Heard on March 2, 2023
Reasons for Judgment released on March 14, 2023
K. KENNEDY…………….…………………………………...……for the Crown
S. YEGHOYAN…………… ……………………. for the Defendant
JUSTICE OF THE PEACE HUNTER:
INTRODUCTION
1Shawn INGRAM (the defendant) was charged on November 5, 2021, with careless driving causing death, contrary to s. 130(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8. Mr. Ingram pleaded guilty to the charge before me on March 2, 2023. The Crown seeks a sentence of 90 days incarceration, a 2-year period of probation, and a 5-year driver’s licence suspension. The defendant submits that the appropriate sentence is between 21-30 days in jail, a 1-year period of probation, and a 3-year driver’s licence suspension. The Crown did not oppose the defendant’s request to serve his sentence intermittently.
2There is no sentence I can impose which will erase the loss and pain caused by Mr. Ingram. Nor can I provide redress to anyone aggrieved by his actions. Other areas of law may provide an avenue for such a remedy, but regulatory sentencing is primarily guided by an examination of two overarching principles – deterrence and proportionality. After a careful balancing of these tenets, I find that the appropriate sentence is one of 75 days in custody, to be served intermittently, followed by a 2-year period of probation, and a 5-year driver’s licence suspension. These are my reasons.
THE OFFENCE
3Filed on consent, the statement of agreed facts reveals that on November 5, 2021, at approximately 8:10 a.m., the defendant was driving eastbound on Regional Highway 47 in the Town of Uxbridge. As the defendant approached the intersection at Concession Road 2, the vehicle traveling ahead of him slowed to just below the posted 80km/h speed limit. Attempting to pass at approximately 113 km/h, Mr. Ingram’s vehicle crossed over a double solid yellow line into the westbound lane of traffic. Two westbound vehicles were forced onto the gravel shoulder to avoid a collision. The defendant’s vehicle struck a third westbound vehicle head-on. This vehicle was driven by 58-year-old Ricky Cooper. Mr. Cooper did not survive the collision and was pronounced dead at the scene. At the time, the defendant’s driver’s licence had been suspended for unpaid fines since October of 2001.
4Mr. Cooper was not the only victim of Mr. Ingram’s careless driving. I have had the benefit of victim impact statements from Mr. Cooper’s widow, Ally Turner, and from Jeffery Lem, writing on behalf of the staff of the Ontario Land Registry, where Mr. Cooper was employed.
5Mr. Lem describes the devastation and grief felt by the members of various offices of the Land Registry from the loss of Mr. Cooper. He expressed the effect Mr. Cooper’s loss had on what he referred to as the Land Registry family. He commented:
While I say that (the) Land Registry offices were devastated, that is a bit of an understatement…the grief was like a contagion that spread throughout all of our 250 staff, and lingers to this day…
6While his former work colleagues feel the pain of Mr. Cooper’s loss, Ally Turner’s life has been torn apart. It is not my intent to trivialize her heartfelt statement by reproducing only a small portion of it. However, the following passage captures her statement’s underlying theme – Ms. Turner now lives a life shattered and broken:
I used to love life. Ricky was my dream come true; he was my soulmate. Since his death, I have contemplated suicide on many occasions, and have come, so very, very close to following through with plans to end my life…I rarely smile or laugh anymore, which is so different from my life before…
THE OFFENDER
7The defendant is 40 years old. He comes from a socio-economically disadvantaged background and has recently endured the emotional strain of losing his mother. Counsel for the defendant advises that since the collision, Mr. Ingram has been struggling with some minor physical health issues. He has also struggled with depression. These submissions were made without any supporting evidence, but I accept them as a likely consequence of what the defendant experienced.
8The defendant has an extensive driving record. At the time of this offence, Mr. Ingram had not held a valid licence for 20 years. Despite this, he has been found guilty of 26 driving related offences, including the following convictions, which are of particular concern in this case:
2001-09-18 Driving Left of Centre On/Near Grade
2001-11-05 Speeding 160km/h in a 100 km/h Zone
2001-11-26 Speeding 110km/h in a 90 km/h Zone
2002-03-01 Operate Motor Vehicle, No Insurance
2003-04-23 Speeding 92 km/h in a 60km/h Zone
2005-01-31 Radar Warning Device in Motor Vehicle
2005-01-31 Driving While Licence Suspended
2005-01-31 Operate Motor Vehicle, No Insurance
2008-08-27 Speeding 109 km/h in a 60 km/h Zone
2008-12-23 Driving While Licence Suspended
2010-08-20 Driving While Licence Suspended
2015-09-30 Speeding 95 km/h in a 80 km/h Zone
2015-09-30 Driving While Licence Suspended
2016-06-22 Driving While Licence Suspended
9I was not provided with the dispositions for each conviction. However, the parties are content that I proceed on the understanding that each conviction resulted in a fine and, where applicable, a statutory licence suspension. The defendant also has a criminal record. While his criminal convictions are mostly dated and non-cognate, they include offences against the administration of justice and offences of dishonesty.
THE LAW
10Section 130(4) of the Highway Traffic Act prescribes the penalty provisions for careless driving causing death:
On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years.
ANALYSIS
11Deterrence is the paramount consideration in sentencing for public welfare statutes. (R. v. Cotton Felts Ltd. (1982), 1982 CanLII 3695 (ON CA), 2 C.C.C. (3d) 287 (Ont. C.A.)). To be meaningful, punishment must be felt by the defendant (specific deterrence) while also serving as a warning to others who might contemplate similar misconduct (general deterrence). Moreover, a just sentence must be proportionate to the gravity of the offence and the responsibility of the offender. In crafting a sentence which meets these criteria, I have balanced those factors which justify a more lenient sentence with those which tend to elevate its severity.
12It is mitigating that the defendant pleaded guilty at a relatively early stage in the proceedings. A guilty plea spares the expenditure of resources associated with conducting a trial, particularly in the face of a pandemic-related backlog. A plea of guilt is an implicit acceptance of responsibility and an admission of wrongdoing. Furthermore, Mr. Ingram expressed actual remorse for what occurred, albeit through his counsel.
13The aggravating factors are substantial. The defendant’s driving behaviour alone requires strong denunciation. I have yet to encounter a careless driving case rooted in driving behaviour which falls so far below the standard expected of a reasonably prudent driver. This is not a case of mere inadvertence or inattention. It is a case of calculated, risky action with tragic consequences. Making a pass on a double yellow line in the face of oncoming traffic, forcing two oncoming vehicles to take evasive action before striking Mr. Cooper’s vehicle, was either one of two things: astonishing indifference or arrogant entitlement. Either way, in my view, Mr. Ingram’s driving behavior is blameworthy from all angles. Mr. Cooper’s death adds to the defendant’s moral culpability, particularly because it was objectively foreseeable.
14It is also aggravating that Mr. Ingram’s driver’s licence was suspended at the time of the collision. In fact, the defendant’s driving record reveals a steady pattern of disregard for the suspension of his licence over the past 20 years. Had Mr. Ingram respected the suspension of his licence, his actions would not have taken the life of Mr. Cooper.
15Mr. Ingram’s driving record is egregious. It is also cognate in nature. It contains 26 convictions for driving related offences, including 5 convictions for driving while suspended and multiple convictions for driving at high rates of speed. Mr. Ingram’s driving record is demonstrative of someone with a consistent disregard for the rules of the road, all while habitually thumbing his nose at his driving prohibition. The defendant’s driving record and, to a lesser extent, his criminal record reveal a broad and continuous indifference to the law, warranting a more severe sentence.
16Crown and Defence counsel brought several sentencing authorities to my attention. Most of these cases predate the 2018 Highway Traffic Act amendments which introduced an increased penalty for careless driving causing death. Nevertheless, these precedents are helpful.
17A review of the caselaw suggests a broad range of sentences for careless driving causing death, from the minimum fine up to incarceration. It appears that I am not alone in my view that incarceration should be used as a measure of last resort for regulatory matters. A jail sentence should only be imposed if all lower forms of punishment are considered and rejected. In this case, it is trite to say that fines have had no deterrent effect on Mr. Ingram whatsoever. Imposing yet another fine would be tantamount to levying no punishment at all. Moreover, a fine would reflect neither the gravity of the offence nor Mr. Ingram’s overall culpability. In these circumstances, a period of custody is required.
18To determine how much jail time is appropriate, a helpful starting point is the Court of Appeal’s decision in R v. Martinez [1996] O.J. No. 544. In that case, the defendant pleaded guilty to careless driving causing death. Mr. Martinez was driving at a relatively slow speed when he ran a stop sign and killed another motorist. He was a first-time offender with no driving or criminal record. Mr. Martinez had the benefit of a favourable pre-sentence report which described him as an otherwise model citizen. The defendant’s inattention was brief and there was nothing intentional or willful about his conduct. The trial judge imposed a 90-day jail sentence. Upon review, the Court of Appeal reduced that sentence to 20 days.
19The factors in this case are more aggravating than those in Martinez in almost every respect. Here, Mr. Ingram was driving in defiance of a suspension, which he routinely flouted. He was driving approximately 30 km/h over the speed limit. Mr. Ingram did not suffer from momentary inattention; he made a conscious choice to pass, despite the warning produced by a double yellow line on the roadway. Mr. Ingram is an offender many times over with a reprehensible driving record. Unlike in Martinez, I have not been furnished any information about Mr. Ingram’s character which might offer some mitigation. Ultimately, if the highest court in the province decided to jail Mr. Martinez for 20 days, I am confident that a lengthier period of incarceration is required in this case to reflect the amplified degree of aggravation. This is so, particularly since Martinez was decided before the Legislature raised the penalty for this offence in 2018.
20I find further support from Poland J’s decision in R. v. Miller, 2023 ONCJ 77. Ms. Miller pleaded guilty to careless driving causing death. The defendant was texting while driving when she struck and killed a cyclist. She was a 40-year-old mother of 2, an upstanding member of the community, with no criminal record and only one dated prior traffic conviction. The court found that a fit sentence was 45 days in jail, more than double the sentence in Martinez. Poland J’s custodial disposition appears to be largely contingent on two key aggravating features. First, Ms. Miller invited an inherently dangerous situation by texting while driving through a construction zone. Further, Ms. Miller’s carelessness killed a cyclist, a statutorily aggravating feature.
21Even considering the aggravation in Miller, the contrast between that case and this one is tangible. At the time of the offence, Ms. Miller had preserved her driving privilege, incurring a single dated entry on her driving record. Ms. Miller was ultimately guilty of momentary inattention. Mr. Ingram, on the other hand, had been ordered not to drive and made regular contributions to a lengthy driving record. His driving behaviour was also far more perilous and intolerable. These differences provide further justification for Mr. Ingram to be subject to an appreciably longer period of incarceration than was ordered in Miller.
CONCLUSION
22In my view, a 75-day jail sentence appropriately addresses the sentencing principles of deterrence and proportionality and falls squarely within the acceptable range. It is my hope that combined with two ancillary orders, this period of custody will specifically deter Mr. Ingram from behaving similarly in the future. It is my further hope that this sentence will put the public on notice that comparable misbehaviour will result in significant consequences. Finally, this sentence addresses both the augmented culpability of the defendant and the considerable gravity of his actions.
23Mr. Ingram will be taken into custody today to be processed and released. The defendant will be placed on non-reporting probation for a period of 24 months with the standard statutory conditions. pursuant to s. 72(2) of the Provincial Offences Act. They are:
a) the defendant will not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment;
b) the defendant will appear before the court as and when required; and
c) the defendant will notify the court of any change in the defendant’s address.
24The defendant will report to probation within 48-hours of his release. He will then attend the Central East Correction Centre in Lindsay, in an alcohol and drug-free state, starting on Friday March 10 at 7 p.m., to be released Sunday March 12 at 6 p.m., and thereafter every Friday from 7 p.m. to Sunday at 6 p.m. until the completion of his sentence.
25The circumstances of this case call for the maximum allowable suspension under s. 130(4) of the Highway Traffic Act. The defendant’s driver’s licence will be suspended for a further 5 years.
26I am thankful to counsel for their assistance in this matter.
Released: March 14, 2023
Justice of the Peace Kevin J.A. Hunter