ONTARIO COURT OF JUSTICE DATE: 2023 06 22 COURT FILE No.: 3111-998-20-3732
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRENDA BOUTROUS
Before Justice A. Dellandrea
Reasons for Sentence released June 22, 2023
Counsel: Ms. A. Simitsis.................................................................................... counsel for the Crown Mr. L. Liquornik........................................... counsel for the accused Brenda Boutrous
DELLANDREA J.:
1.0 Introduction
1On February 5, 2020, Brenda Boutrous was working an overnight shift at McDonald’s in Brampton. Just after midnight, she offered to drive two of her co-workers home on her thirty-minute break. In her haste, Ms. Boutrous was speeding southbound on Torbram Road at more than two times the posted speed limit of 60 km/hr. As she drove her vehicle dangerously in the left lane towards the Williams Parkway intersection, Dennis Malone was driving slowly southbound in the curb lane. When Mr. Malone initiated a U-turn towards northbound Torbram Road, Ms. Boutrous struck the driver’s side of Mr. Malone’s vehicle at a velocity of 151 km/hr.
2The damage from the collision was catastrophic. Mr. Malone’s Kia was completely demolished. Tragically, Mr. Malone was pronounced deceased at the scene as a result of the blunt force trauma from the collision. One of Ms. Boutrous’ passengers also suffered serious injuries, from which she has thankfully recovered.
3On December 20, 2021 Ms. Boutrous pleaded guilty to Dangerous Operation Causing Death. A lengthy Agreed Statement of Facts (“ASF”) detailing the accident formed the basis of Ms. Boutrous’ plea. Critically, it includes Ms. Boutrous’ admission that her dangerous operation of the Mercedes SUV at 151 km/hr prevented her from being able to avoid Mr. Malone’s vehicle, making her legally responsible for the collision and for the death of Dennis Malone.
4While most of the details of the collision were undisputed, evidence was called on the sentencing hearing with respect to the manner of the deceased’s driving in the moments preceding the collision. Mr. Liquornik submitted that factual findings on these issues could be considered by the court as potentially mitigating his client’s moral blameworthiness for the collision, based on the principle of contributory negligence applicable on sentencing. The disputed factual issues were:
(1) Did the Kia come to a full stop at Williams Parkway before turning right onto Torbram Road; (2) Did the Kia’s brake lights come on before the U-turn was initiated; (3) Was the Kia’s left turn signal activated before the U-turn was initiated; (4) Was the Kia’s intended U-turn “lawful.”
1.1 Positions of the Parties
5The parties offer divergent positions on what is the appropriate sentence for Ms. Boutrous’ offence.
6On behalf of the Crown, Ms. Simitsis submits the court should impose a sentence of 15 to 24 months’ imprisonment, followed by two years’ probation and a five-year driving prohibition. The Crown emphasizes the enormity of the loss which Ms. Boutrous caused to the Malone family, and underscores the primacy of the sentencing principles of denunciation and deterrence applicable when sentencing an offender for dangerous driving causing death – principles which she submits cannot be meaningfully expressed other than by a carceral sentence. Ms. Simitsis argued that the evidence does not support any consideration of contributory negligence in the assessment of an appropriate sentence, given what she characterizes as Ms. Boutrous’ exclusive responsibility for the fatal collision.
7On behalf of the offender, Mr. Liquornik acknowledges that denunciation and deterrence are the preeminent sentencing objectives for this offence, which require a custodial sentence in this case. However, he submits that Mr. Malone’s unsafe U-turn deserves some consideration when assessing Ms. Boutrous' degree of responsibility for the harm caused by the collision. Further, Mr. Liquornik emphasizes several additional mitigating factors, including Ms. Boutrous’ guilty plea, youthfulness, lack of any prior criminal or driving record, positive work history, and profound remorse. In all the circumstances, counsel submits that a restrictive conditional sentence of imprisonment of 18 to 24 months’ duration followed by a lengthy driving prohibition would serve the objectives of denunciation and deterrence and be proportionate to the gravity of Ms. Boutrous’ offences and her degree of responsibility.
8These reasons for sentence begin by detailing the circumstances of these offences, including the facts in dispute, and their profound impact on the victim’s family. Then, they describe Ms. Boutrous’ circumstances. Finally, I turn to consider the governing legal principles before addressing the appropriate sentence for Ms. Boutrous.
2.0 Circumstances of the Offence
9The detailed circumstances of the offence were captured in the 46-page Accident Reconstruction Report (“ACR”) prepared by the Major Collision Bureau of the Peel Regional Police, which was entered into evidence. The “ACR” included scene photos, video, velocity calculations, crash data recorder information, and collision analysis. The following facts were found based on the contents of “ACR” and the testimony on the Gardiner hearing.
10Importantly, it is not disputed that speed was the only factor which made Ms. Boutrous’ driving dangerous.
11The roads were clear and dry on February 5, 2020 when Mr. Malone was on his way to his workplace on eastbound Williams Parkway. As it was after midnight, there was no traffic in the area.
12Williams Parkway runs east/west, with two through lanes in each direction along with a dedicated left and right turning lanes at intersections. Torbram Road southbound has two through lanes and a left turning lane as it intersects with Williams Parkway. The posted speed limit on both roadways is 60 km/h and the area is mainly residential.
2.1 Right Turn onto Torbram Road
13At approximately 12:22 a.m., Mr. Malone approached the intersection with Torbram Road in his Kia Rio. The light was red. At 12:22:26 Mr. Malone made a right hand turn into the curb lane of southbound Torbram Road. Video surveillance footage obtained from a business located at 1650 Williams Parkway E placed Ms. Boutrous’ SUV approximately 240m north of the intersection at the time of Mr. Malone’s southbound turn.
14Cst. Misev, a qualified accident reconstructionist of the Peel Police Major Collision Bureau, reviewed the video evidence frame by frame and summarized his findings both in the accident reconstruction report as well as in his testimony.
15It was suggested to Cst. Misev in cross-examination that it is clear from the video evidence that the Kia did not come to a full stop prior to making the right hand/ southbound turn from Williams to Torbram. Various Google Street view images depicting the nearby signposts, a snowbank and the stop line were shown to the officer to invite his comparison with the video in support of counsel’s suggestion that the Kia “rolled through” the right turn as opposed to making a lawful stop.
16Cst. Misev maintained that the video evidence did not allow for any definitive conclusion to be made with respect to the Kia’s right turn, as the stop line is not visible in the video, and the vehicle is already in motion through the intersection when the footage starts.
17I accept and agree with the officer’s conclusion on this issue. The nighttime video is of rather poor quality, shot from a considerable distance. It does not allow for finding to be made one way or another as to whether the Kia came to a complete stop before turning into the southbound curb lane of Torbram Road.
18Either way, the evidence is clear that when the Kia made the right turn into the curb lane of Torbram Road, Ms. Boutrous’ SUV was approximately 200m north on Torbram, from where she had a clear view of Mr. Malone’s vehicle ahead of her. Ms. Boutrous’ own evidence supports this finding. I therefore conclude that the mechanics of Mr. Malone’s turn onto Torbram did not contribute in any way to the collision which shortly ensued.
2.2 Kia Brake Lights & Left Turn Indicator
19After completing the right turn, the Kia travelled slowly south in the curb lane for approximately 30-40 metres before braking and initiating a left turn at 12:22:28. As the turn was initiated, the SUV was crossing the intersection in the left lane. The collision happened one second later, at 12:22:29 a.m.
20Analysis of the Kia’s Event Data Recorder (EDR) revealed that at the time of impact, the Kia was travelling at 28 km/hr. The Kia’s brakes had been activated just prior to the turn and the impact (1.5 seconds). The defence conceded that the Kia’s brake lights were discernible on the “Everything Wireless” video (on the northeast of the intersection) in the second before the crash.
21At issue is the question of whether any left indicator signal had been activated by the Kia prior to initiating the turn in to the left lane of Torbram south. No “EDR” data is available on this issue.
22The only evidence available on this issue is the video, and the conflicting testimony of Ms. Boutrous and one of her passengers, Mr. Morbi.
23The video is of no real utility on this point. At the moment when a left turn signal might have been engaged in the seconds before impact, the Kia’s left taillight is obstructed by the time stamp on the video, which could not be removed to allow an unobstructed view.
24Mr. Aidan Morbi was in the rear of Ms. Boutrous’ vehicle, in the seat directly behind her. He testified that he had been leaning slightly to his right in order to look out through the right side of Ms. Boutrous’ windshield as they approached the intersection with Williams’ Parkway. Mr. Morbi said he saw the blue Kia travelling in the right lane as they approached in Ms. Boutrous’ SUV on the left. According to Mr. Morbi, the blue Kia “signalled over and almost immediately came in our lane.” He believes he saw the Kia’s indicator one second before impact.
25Ms. Boutrous initially testified that she “didn’t notice” any signal by the Kia, but went on in her evidence to say that she was sure there was none, and would have noticed it if it had been made. She admitted that she had changed from the right to left lanes of Torbram just north of the intersection upon seeing the Kia and realizing that she wouldn’t be able to avoid it unless she moved to a different lane, due to her excessive speed. She further acknowledged that after switching to the left lane to avoid colliding into the rear of the Kia, she saw its brake lights illuminate while she continued at the same speed.
26Ms. Boutrous was insistent that if she had seen any turn signal from the Kia she would have “reacted quicker,” “avoided it sooner” or “hit him differently.” In cross-examination Ms. Boutrous also acknowledged that at the speed she was travelling, she would have had no real time to react to Mr. Malone’s vehicle.
27I am unable to accept the evidence of either Mr. Morbi or Ms. Boutrous on the issue of the presence or absence of a left turn signal by Mr. Malone, due to reliability concerns in both of their testimony. Mr. Morbi was clearly mistaken about another issue in his evidence: that the Kia had no visible taillights or brake lights. The video confirms that it did. Moreover, the varying then overconfident nature of Ms. Boutrous’ evidence on this point fails to assure me of either the credibility or reliability of her observation. In the final analysis, I am simply not satisfied that either party was in a position to make an accurate or reliable observation of the Kia’s signal light in the split second before impact, while the Mercedes was travelling at such an incredibly high rate of speed.
2.3 “Lawful” U-turn
28While the presence or absence of a left signal indicator by the Kia remains unknown, there is no dispute that the Kia’s Event Data Recorder (“EDR”) shows that the Kia’s brake pedal was activated 1.5 seconds before impact, and that in the seconds before impact, the Kia steered to the left into the lane in which Ms. Boutrous was speeding.
29There can be no doubt that this action by the Kia factually contributed to the collision’s occurrence. The evidence in this case supports a finding similar to the one made in Yogeswaran 1, namely: that while Mr. Malone’s unsafe left turn played some role in causing the collision, it did not “displace the significant contribution” of Ms. Boutrous’ dangerous driving.
30Indeed, the Accident Reconstruction analysis included calculations which confirm that had the Mercedes been travelling at the posted speed limit of 60 km/hr, the Kia would have had sufficient time to safely complete the U-turn without the requirement of any evasive action by either vehicle. In other words, but-for the Mercedes’ excessive speed, the Kia would have had sufficient time to make a lawful U-turn and clear the southbound lanes of Torbram Road without incident.
31We will never know if Mr. Malone checked his mirrors and misread the turn as a safe one to make, or failed to check them altogether. The fact remains that he unknowingly and tragically navigated into the lane of Ms. Boutrous’ rapidly advancing vehicle.
32The video evidence shows the Mercedes brake light illuminating one second before impact. I accept Cst. Misev’s evidence that given Ms. Boutrous’ speed of 151 km/hr, there was virtually no opportunity for her to react in any manner that could have avoided the collision.
33In conclusion, I find that while Ms. Boutrous’ dangerous driving was a significant contributing cause of the harm occasioned by the collision, for which she undoubtedly deserves punishment, she does not bear exclusive responsibility for the tragic outcome, and her sentence must be determined accordingly: R. v. Ally, 2015 ONSC 1204 at para. 123.
34Before turning to the mitigating circumstances of the offender it is necessary to acknowledge and assess the larger contextual circumstances which led to Ms. Boutrous offending here. As Mr. Liquornik very fairly characterized it in his submissions, when Ms. Boutrous committed this offence she was being a nice person to her co-workers. There was no street racing or horsing around or distracted driving that led to this tragic occurrence: rather, it was the hurried goodwill of an immature driver with good intentions, but unfortunately poor judgment which led to this tragic outcome. I acknowledge this factor in calibrating Ms. Boutrous’ moral culpability for this offence.
2.4 Victim Impact
35Denis Malone was not the only victim of Ms. Boutrous’ offence. The impact of his loss was deeply felt by his wife, children, step-children, and no doubt by his extended community.
36Victim impact statements were received during the sentencing submissions from Mr. Malone’s wife, Sarah, as well as from his children Susan, Samantha and Jacob. I am grateful to each of them for taking the time to share what were obviously their painful reflections with the court. They were very important to hear.
37These statements expressed the profound loss and ongoing pain felt every day by Mr. Malone’s family members due to his sudden absence from their lives, and the reality that he will not be present for their future milestones, celebrations, or everyday moments of life. For a wife to lose her husband, and children their father, in circumstances this avoidable is a terrible tragedy. The permanent impact of Ms. Boutrous’ offending on the Malone family, as well as her own family cannot be overstated, and there is no sentence available to be imposed which could fill the void left by Mr. Malone’s sudden loss.
38The sentence imposed must balance the family’s loss, the community’s abhorrence for this crime, and the personal circumstances of the offender.
3.0 Circumstances of the Offender
39At the time of her offence, Ms. Boutrous was 18 years old. She was working fulltime as a shift supervisor at McDonald’s while completing her high school degree. By all accounts, she was a good student, hard worker and valued employee.
40Ms. Boutrous has neither a criminal nor a Highway Traffic Act record. At the time of the offence, she had just obtained her G2 license and was driving in contravention of the passenger limits at the time of the occurrence. At the time of this offence, she had offered to drive two of her younger co-workers home on her break from work, instead of their taking public transit home.
41Ms. Boutrous’ parents were born and raised in Iraq. They came to Canada after the Gulf war. They are described as a modest, stoic and hard-working family. Ms. Boutrous has a sister who is married and has two young children, as well as a brother. After this incident, the Boutrous family moved to Windsor, to be near the offender’s older sister and her family. Ms. Boutrous’ family have been present in her support throughout these proceedings.
42Ms. Boutrous hopes to continue her post secondary education by pursuing a degree in nursing. Currently she continues to work fulltime at McDonald’s in the Windsor area, where she has a positive work record.
43Since the commission of her offence, Ms. Boutrous has been in the care of a therapist, whom she has consulted to help her deal with her guilt and shame arising from the enormity of her driving misconduct. Earlier this year, she suffered from a bout of acute depression during which she made a suicide attempt. Ms. Boutrous has expressed her willingness and desire to continue her therapy in the future. She told her therapist that she is deeply regretful for her actions, and wishes there was something that she could do to comfort the Malone family whose pain she knows she caused.
4.0 Applicable Legal Principles
44Sentencing is a highly discretionary, individualized exercise. There is no rigid formula applicable to the calculation of the appropriate sentence; rather judges must balance the unique factors particular to the offence and the offender in order to fix a sentence that best reflects the purpose, objectives, and principles of sentencing.
45The "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:" Criminal Code, s. 718 – s.718.2.
46The sentencing court must aim 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, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: Criminal Code, ss. 718 (a)-(f).
47The 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: Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime (including the harm it occasioned) and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, at paras. 40-43; R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at pp. 546‑47.
48Proportionality also includes consideration of comparable sentences previously imposed for similar offences committed in similar circumstances. R. v. Lacasse, 2015 SCC 64, at para. 53.
49In Priest, the court held that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence. The principle of restraint with respect to youthful first offenders was more recently reiterated by our Court of Appeal in Mohenu, 2019 ONCA 291 as well as in Randhawa, 2020 ONCA 668.
4.1 Sentences for Dangerous Driving Causing Death
50Dangerous Driving Causing Death is recognized to be a serious offence. The Court of Appeal has observed: “Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured:” Rawn, 2012 ONCA 487 at para. 41.
51Owing to the obvious gravity of the offence, appellate courts have recognized that denunciation and deterrence are the paramount objectives when sentencing an offender for dangerous driving causing death: Rawn, at para. 33; Singh, 2018 ONSC 4598 at para. 22-25; aff’d 2019 ONCA 872.
52Both parties provided me with cases in which the broad range of available sentences for dangerous driving causing death were reflected. These sentences ranged from conditional sentences of imprisonment (R. v. Ryazanov, 2008 ONCA 667; Christink, 2010 ONSC 2396; Linton, 2022 ONCJ 197; Hutchison, 2022 ONCJ 276; He, 2022 ONSC 2100, Paul, 2022 ONCJ 102) to a range of reformatory sentences (Ally, 2015 ONSC 1204; Yogeswaran, 2021 ONSC 5920; Kirkpatrick, 2018 ONCJ 208; Laine, 2015 ONCA 519, Gawronski, 2023 ONCJ 67) to penitentiary sentences (Saunders, 2021 ONSC 6149; Robertson, 2022 ONCJ 240). I have reviewed and considered all of these decisions.
53In R. v. Paul, 2022 ONCJ 102, Justice Rose provided the following helpful articulation of the factors which bear on the court’s decision on where to situate the individual sentence on this spectrum in cases of dangerous driving causing death:
The range of sentence for dangerous driving causing death is quite broad. Aggravating factors which tend to elevate the length of sentence include street racing, presence of intoxicants, deliberately engaging in risky behaviour or multiple convictions. Less blameworthy conduct can mitigate a sentence, see R. v. Stephens 2013 ONCJ 575, R. v. Singh, 2018 ONSC 4598.
4.2 Aggravating and Mitigating factors
54A sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s 718.2(a). These factors situate the sentence “up or down the scale of appropriate sentences for similar offences.": Nasogaluak, at para. 43.
55In terms of aggravating factors, the Criminal Code directs the court to specifically consider: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation:” Criminal Code, s 718.2(a)(iii.1). In short"[t]he negative effect of a crime on its victims is always an important consideration in sentencing:” R. v. Drabinsky, 2011 ONCA 582, at para. 179.
56There can be no dispute that the devastating loss to the Malone family is an aggravating factor here.
57The fact that Ms. Boutrous’ was driving after midnight with underaged passengers in contravention to the G2 regulations is also somewhat aggravating.
58Most notable in aggravation was Ms. Boutrous’ excessive speed. At the moment of impact, she was travelling at more than twice the posted speed limit, at a staggering velocity of 151 km/hr. The speed at which Ms. Boutrous was driving posed a significant risk to herself, her passengers, and the public at large.
4.3 Mitigating Factors
59There are also several mitigating factors in this case.
60Almost immediately after being charged and retaining counsel, Ms. Boutrous indicated her wish to plead guilty and to accept responsibility for this offence. She expressed her profound and sincere remorse to the court and to the victim’s family when offering her plea and before sentencing submissions. Since this incident, Ms. Boutrous has been suffering from depression from having caused Mr. Malone’s death. Earlier this year she attempted to commit suicide and was hospitalized for several days. Currently Ms. Boutrous is in the care of a registered therapist with whom she has begun to work through her acceptance of responsibility for her misconduct and the challenge of moving on with her life. These are mitigating factors.
61Second: Ms. Boutrous is a first offender without any criminal record or any history of provincial driving offences. These are also mitigating factors: see R. v. Dobis (2002), 58 O.R (3d) 536 (C.A.), at para. 28.
62Third: Ms. Boutrous is a very youthful offender. At the time of her offence, she was just 18 years old. Appellate authority instructs that ordinarily the focus should be on specific deterrence and rehabilitation when sentencing a youthful first offender. These objectives will typically favour a non-custodial sentence: Priest, at pp. 543-44; Brown, 2015 ONCA 361 at para. 7. The principle of restraint for youthful offenders has its limits, however. The gravity of an offence committed by a youthful offender may, in very serious circumstances demand a denunciatory jail sentence: Priest, at p. 543.
63Careful calculation of both the gravity of the offence and the moral blameworthiness of the offender are separate considerations essential to achieving the goal of proportionality in sentencing. Sentences must ensure "that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused:" Nasogaluak, at para. 42.
64Contributory negligence may be considered in the sentencing inquiry, which requires that the sentence imposed be proportional and commensurate with the degree of moral blameworthiness of the offender: Nette, 2001 SCC 78 at para. 49; R. v. K.L., 2009 ONCA 141, at para. 18; Menezes at paras. 92 and 98; R. v. Ally, 2015 ONSC 1204; R. v. Singh, 2014 ONSC 6960, Yogeswaran, 2021 ONSC 1242.
65Ms. Boutrous is responsible for her excessive speed which was undoubtedly the prevailing cause of the collision. However, her moral blameworthiness for the event should be mitigated to some degree by the totality of circumstances which played a role in the accident, including Mr. Malone’s untimely U-turn.
5.0 Analysis and Conclusion
66In considering the appropriate sentence for Ms. Boutrous’ offence, I also note the important absence of any additional aggravating factors such as aggressive or bad driving, the use of alcohol or drugs, fatigue, horseplay or distraction while driving. Indeed, the only element of Ms. Boutrous’ driving which was dangerous was her speed.
67The sentence sought by the Crown in this case is a carceral sentence of 15 to 24 months.
68The Crown acknowledges that a conditional sentence of imprisonment is available in this case but submits that it is inadequate to give proper expression to the predominant principles of sentencing.
69Mr. Liquornik submits that a fit sentence is under two years in this case, and that a conditional sentence is capable of adequately addressing both denunciation and deterrence.
70With respect to both the range and type of sentence sought by the Crown, counsel argued that the cases relied on by the Crown to justify a higher sentence all included aggravating factors which are absent here, such as more prolonged bad driving, criminal or HTA records, the use of alcohol or drugs, and absconding offenders. Mr. Liquornik submits that those cases can be distinguished from the circumstances of this case, which call for a more lenient disposition in view of the relevant factors. Having carefully considered all of the evidence, I agree with this assessment.
71I consider the facts of Christink, 2010 ONSC 2396 and Linton, 2022 ONCJ 197 to be the most useful comparators to the offending circumstances here. In the first case, the offender was driving at over twice the posted speed limit for no other reason than to impress his friends with the power of his sportscar. He was unable to react to the road conditions and he caused a collision which resulted in the death of his two passengers. The offender had a criminal record with one entry, and several HTA convictions. He was profoundly remorseful and had strong support in the community and his place of employment. In imposing a conditional sentence of imprisonment of 2 years less a day, the court emphasized the absence of any contributors besides speed to the collision.
72Linton involved more aggravating driving circumstances. The offender was passing a line of cars in front of him across a double line on a two-lane roadway in circumstances which the court concluded were patently dangerous. While speeding over 100 km/hr to overtake traffic, he struck an unseen vehicle coming in the opposite direction, killing one of its passengers and injuring the driver. The 27-year-old offender pleaded guilty, had no prior criminal or traffic record, and suffered significant personal losses as a result of the offences. The court noted the offender’s relative youth, guilty plea and absence of any record or otherwise aggressive driving in imposing a conditional sentence of two years.
73Counsel relies on the Supreme Court of Canada’s finding in Proulx, (2000) 140 C.C.C. (3d) that a conditional sentence of imprisonment can meaningfully express denunciation and deterrence where onerous conditions are imposed and the term of sentence is longer than a carceral period.
74Notwithstanding the horrific consequences of Ms. Boutrous’ conduct, it is my duty to apply the law dispassionately in a manner which holds her accountable for her offending, deters others, and is proportionate to the nature of her offence and her moral blameworthiness for it.
75Deterrence and denunciation are paramount in this case, but they are not the only principles of sentencing that apply. I must also consider the principles of restraint and the objective of rehabilitation in the sentencing of Ms. Boutrous as a young and deeply remorseful offender.
76After carefully considering all of the mitigating and aggravating circumstances of this offence and this offender, I am satisfied that a sentence of two years’ imprisonment, to be served in the community with strict conditions, gives appropriate expression to the sentencing principles required in Ms. Boutrous’ case.
77It is true that a conditional sentence is not the equivalent of a carceral jail sentence, as “incarceration remains the most formidable denunciatory weapon in the sentencing arsenal:” Killam, 1999 ONCA 2489, at para. 13. However a conditional sentence is a punitive sanction, capable of achieving denunciation and deterrence where the conditions are designed to meet these objectives. A breach of a conditional sentence order can lead to new charges which can collapse the sentence into one of real custody. This mechanism serves the objectives of both specific and general deterrence.
78Ms. Boutrous is a very young woman with no criminal record or driving violations. The catastrophic consequences of her offending were the result of but a few minutes of horrendously bad judgment, and excessive speed. She was hurrying to help her friends, and in the process she took another human life. Ms. Boutrous is not a danger to the public. It is also abundantly clear to me that Ms. Boutrous’ remorse for this misconduct is genuine, and profound. I am confident that Ms. Boutrous will never forget, and to some degree will always be marked by the enormity of her actions on this fateful day. Remorse, when sincerely felt, can be a powerful motivator towards rehabilitation and reparations for harms caused. I am satisfied by the sincerity of her remorse, and am very hopeful that Ms. Boutrous will continue to focus on these objectives during the period of her confinement under conditional sentence.
79Ms. Boutrous will be subject to a conditional sentence of imprisonment for a period of two years less a day. The terms of the conditional sentence are as follows:
(1) You are to keep the peace and be of good behaviour. (2) Appear before the court when required to do so. (3) Report as the court directs in person to a supervisor and thereafter when required and in the manner directed by the supervisor. (4) Remain in the Province of Ontario unless you have prior written permission from the supervisor. (5) Notify the supervisor or the court in advance of any change of name or address or employment. (6) Report to your conditional sentence supervisor immediately and thereafter at all times, places and manner as directed by your supervisor or anyone authorized to assist in your supervision. (7) For the first 18 months of your sentence, reside at your family residence and remain within it at all times, except: (a) In the case of medical emergencies experienced by yourself or any member of your immediate family; or for scheduled medical, dental or therapeutic appointments; (b) For the purpose of going directly to and from your place of employment or education, the details of which to be provided in advance and approved by to your supervisor; (c) For the purpose of attending any place of worship, once weekly, subject to the advance approval of your supervisor; (d) Once weekly for a period of four hours, for the purpose of obtaining the necessaries of life; and, (e) To attend any funeral for an immediate family member. (8) You shall be placed on the GPS monitoring program for the duration of your conditional sentence order. (9) Abide by the rules and protocols of the Recovery Science Corporation (RSC) by providing your signature on the GPS rules and protocols which will be attached to this order as Schedule “A” and which are part of this Conditional Sentence Order. (10) You are to attend and actively participate in any counseling or rehabilitative programs as may be directed by your supervisor. (11) For the remaining six months of your conditional sentence order, you are to abide by a curfew and be within your residence by 11:00 p.m. every night until 6:00 a.m., subject to the following exceptions: (a) In the case of medical emergencies experienced by yourself or any member of your immediate family; (b) For the purpose of going directly to and from your place of employment the details of which to be provided in advance and approved by to your supervisor.
80There will be a 24-month probation order to follow the conditional sentence:
(1) Keep the peace and be of good behaviour. (2) Attend court when required. (3) Notify the court or your probation officer in advance of any change to your name, address or employment. (4) Attend at and actively participate in any counseling as directed. (5) Complete 100 community service hours to the satisfaction of your probation officer.
81Ms. Boutrous will be prohibited form driving anywhere in Canada for a period of 5 years from the date of this sentence. Driving is a privilege, not a right – and it is necessary for Ms. Boutrous to be denied this privilege for a significant period of time in view of the serious nature of her offending.
82I will hear from counsel with respect to any additional exceptions sought from the house arrest conditions for the conditional sentence.
83I would like to thank both counsel for their mutually respectful and helpful submissions in this difficult case.
Released: June 22, 2023 Signed: Justice A. Dellandrea
