Ontario Court of Justice
Date: 2024 01 16 Court File No.: Newmarket 4960 999 21 26670000 00
BETWEEN:
HIS MAJESTY THE KING
— AND —
Madison P. BIGGAR
Before: Justice of the Peace T. Rotondi
Oral Reasons for Judgment given: November 14, 2023 Written Reasons for Sentence released on: January 16, 2024
Counsel: Ramandeep Gill, counsel for the prosecution Dennis J. Reeve, counsel for the defendant Madison P. Biggar
Reasons for Sentence
JUSTICE OF THE PEACE T. ROTONDI:
1Madison Biggar was charged on June 28, 2021, with careless driving causing death, contrary to section 130 (3) of the Highway Traffic Act.
2After a two-day trial Ms. Biggar was convicted on May 15, 2023.
3A sentencing hearing was scheduled for August 8, 2023.
4Today has been set for my ruling, November 14, 2023.
5As part of the sentencing hearing the Court heard impact statements from the family of Remington Chase Taylor.
6A pre-sentence report was filed by the defence as well as three statements in support of Madison Biggar.
7The statements are filed as exhibits as part of the sentencing hearing.
Family impact statements: Remington Taylor (Chase)
8The family of Remington Chase Taylor shared the impact his loss has had on them.
9The Court heard victim impact statements from Nicole Taylor, Chase’s wife, Debbie Taylor, Chase’s mother, Summer Harris, a family friend, Katelyn Sooley, Chase’s sister-in-law, and Natalie Foster. I thank each of you for taking the time to openly share the heartache and ongoing struggles following the accident. The loss will be everlasting.
10Nicole Taylor, Chase’s wife, described the day as the most terrifying and traumatic day she has ever encountered. Her husband was on his way to attend their daughter’s graduation.
11Her life and the life of her children has drastically changed. She has struggled with panic attacks, flash backs, PTSD, and mental health requiring medication to get through the days. The children have had trouble sleeping, eating, going to school, and getting through normal daily activities.
12Debbie Taylor, Chase’s mother, spoke on behalf of her husband and Brandon, Chase’s brother. She said for a parent to lose their son in this manner is horrifying and senseless.
13She described him as a happily married man, devoted husband a father, a loving son and brother. He was a person who was always thinking of others. As a result of his selflessness, seven others benefited from his gift of life donation.
Pre-Sentence Report
14The pre-sentence report provided the Court with information and history about the defendant, her family, and the challenges she’s faced throughout her life.
15Madison Patricia Biggar was born in Newmarket and raised in Keswick. Presently she resides in Newmarket with her parents and her six-year-old niece.
16For the six months leading up to the offence, she worked part time at a burrito restaurant. Due to her emotional and physical state following the offence, Ms. Biggar no longer works there and is currently unemployed.
17Three months following the offence, she began to receive rehabilitation benefits from her motor vehicle insurance company.
18Maria Bedford, the writer of the pre-sentence report, reported that Ms. Biggar demonstrated difficulty with reporting in person as directed for the purpose of writing the report. Upon receiving the PSR requisition, she contacted Ms. Biggar on six occasions receiving no responses.
19When she attended the first meeting, while she apologized saying she had difficulty remembering appointments, she appeared apathetic when told she had put the writer under time constraints to write the report.
20During the first year after the accident, she lost 150 pounds. After the offence she started experiencing symptoms described as post traumatic stress disorder, attended counselling with a therapist virtually and by telephone sessions, but did not find them helpful.
21Ms. Hart, the psychotherapist, reported the sessions were one hour in duration totalling 16 sessions. Ms. Hart stated that Ms. Biggar struggled with attendance. As a result, the weekly sessions gradually turned into monthly.
22Madison Biggar’s statement includes the trauma she experienced as a result of the accident. She never meant to hurt anyone and feels awful for changing peoples lives the way she has.
23As I consider sentencing, I want the family of Remington Chase Taylor to know that there is no sentence that I can impose that will make up for the void that you feel since the collision on June 28, 2021.
24The sentence imposed by the Court in this case cannot be seen in any way to represent an evaluation of the remarkable life that has been lost.
25There is nothing in a sentence that can achieve any compensation for the loss of such a person, and the affect it will forever have on all who loved him and are deeply impacted by his loss.
The Law
26My task is to sentence Madison Biggar in a way that is compatible with the law following two principles. One is specific deterrence, and one is general deterrence.
27As stated in R v Cotton Felts Ltd., deterrence is the paramount consideration in sentencing for public welfare statues. 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 appropriate to the gravity of the offence and the responsibility of the offender.
Mitigating Factors
28At the time of the offence Maddison Biggar was 17 years of age.
29She obtained her G2 licence seven days prior to the collision and was now able to drive without another licenced driver in her vehicle.
30As stated in the pre-sentence report she has also suffered as a result of the collision.
31Madison Biggar does not have a criminal record and no convictions on her driving record.
Aggravating Factors
32The impact on the family, friends and children of Remington Chase Taylor losing his life has been devastating. The loss of a loving husband, father, son, brother, and friend represents a life-long tragedy that will never be overcome.
33The offence of driving without due care and attention arose from making a left hand turn at the intersection of Ravenshoe and Queensway immediately following the vehicle in front of her. There was no viable explanation provided at trial as to the reason for proceeding through the intersection and not giving the motorcyclist time to clear the intersection.
34Ms. Biggar’s driving behaviour caused the death of a person who was a vulnerable road user. This is a statutory aggravating circumstance under section 130 (6) of the Highway Traffic Act.
Analysis and Conclusions
Review of cases:
35In reviewing the seven cases provided in the book of authorities I note that six are decisions arising from guilty pleas.
36There is a clear distinction between careless driving and careless driving causing death or bodily harm.
37Under section 130 (4) fines are to be a minimum of $2,000 to a maximum of $50,000. The driver could face a maximum of two years in prison, their driver’s license could be suspended for up to five years. The sentencing options include the requirement to complete a road safety or driver training course, as well.
38This draws the attention to the fact that when a motorist is careless and hits a cyclist or a pedestrian, the outcomes are much more significant.
39Whether the driving was careless is dependent upon the acts or omissions of the driver, not the consequences: R v Kinch, 2004 ONCJ 486 at paras. 51-53.
40Nonetheless, the fact that the driving caused the death is a factor that is appropriate to take into account when considering a fit sentence for careless driving: R v Stupar, 2015 ONCJ 350.
41The consequences of the driving behaviour that gave rise to the charge of careless causing death are severe. The lives of all those affected are irrevocable and dramatically altered.
Parity:
42The supreme court addressed the concept of parity and the fundamental principle of proportionality: R v Friesen, 2020 SCC 9.
43I was provided with a book of authorities to consider the sentencing in similar cases.
[44] The cases provided are as follows: R v Kreyger, 2020 ONCJ 424 R v Hiebert, 2022 ONCJ 47 R v Taylor-Rawlings, 2019 ONCJ 698 R v Miller, 2023 ONCJ 77 R v Watson, 2023 ONCJ 50 R v Ingram, 2023 ONCJ 141 R v Ramsey, 2021 ONCJ 652
45Of the seven cases provided, six are cases in which defendants took responsibility for the cause of the accident that ultimately led to the death of the victim. By entering a guilty plea, the families of the victims were spared the prolonged trial and having to relive the collision.
46Mr. Taylor-Rawlings as young and a novice driver at the time of the accident was blinded by the sun and made a left hand turn into the pathway of a motorcycle: R v Taylor-Rawlings, 2019 ONCJ 698.
47The Court found this case fell at the lower level given the issue of the sun and it’s contributing factor in causing the collision. As well as the mitigating factor of the guilty plea, true remorse and that it saved the system time as well as the participants the stress and strain of reliving the difficult event at trial.
48Taylor-Rawlings received a sentence of two-year driver licence suspension, $3,500.00 fine, and was required to make a $500.00 donation.
49Ms. Kreyger is Indigenous, 54 years of age, a wife, a mother, and a long-time member of the community: R v Kreyger, 2020 ONCJ 424.
50She drove through a stop sign without stopping or slowing. She struck the victim’s vehicle who had the right of way.
51The Court gave her credit for taking responsibility and pleading guilty very early in the court process. At the time of the plea, she had already completed 100 hours of community service which was viewed upon by the Court as a further sign of her remorse.
52A $2,000.00 fine was imposed as well as a four-year driving prohibition and two years probation.
53Ms. Miller is 40 years of age, a mother with two children. She was distracted while driving in a construction zone and killed a cyclist: R v Miller, 2023 ONCJ 77.
54She took full responsibility from the first moment. There were no witnesses to the collision, no surveillance footage, and no one complained about her driving behaviour. She was extremely remorseful, she remained on the scene, called 911 and attempted to offer assistance until first responders arrived.
55With no witnesses to the collision, no surveillance footage, no one that could attest to Ms. Miller’s driving behaviour, there was a realistic chance that in a trial she might have been found not guilty.
56The acknowledgement of a guilty plea as a mitigating factor particularly in a case where a guilty verdict was not a foregone conclusion, is absolutely required as a matter of law: R v Faulds.
57Ms. Miller was sentenced to 45 days in custody and a two-year license suspension.
Sentence
58The sentencing principles of deterrence and denunciation must satisfy the public interest in relations to driving offences where there is a fatality.
59In determining the appropriate sentence, I must consider specific deterrence and general deterrence as well as the concept of parity and the fundamental principle of proportionality.
Specific Deterrence
60Specific deterrence is to make sure that Madison Bigger never again puts herself in a position of driving without due care and attention or without reasonable consideration for other persons using the highway.
61In R v Hiebert, 2022 ONCJ 47, His Worship Cuthbertson stated in that the remorse Mr. Hiebert has shown by his early guilty plea and the remorse shown to the victim meets specific deterrence.
62Although Ms. Biggar did not enter a guilty plea and exercised her right to have a trial, she will have to live with the results of her actions for the rest of her life. Her statement of the vivid nightmares of the accident, reliving it every time, goes to specific deterrence. No sentence this Court could impose can send a better message.
General Deterrence
63General deterrence serves to discourage other potential offenders from committing similar offences. The Court in deciding sentence must send a message to all drivers in the province of Ontario that everyone must be vigilant at all times on the road.
Youth Criminal Justice Act
64In sentencing today, I take into consideration that Madison Bigger was 17 years old at the time of the collision. Although the Provincial Offences Act does not recognize her as a youth; she is a youth as defined in the Youth Criminal Justice Act which instructs Canada’s policy with respect to young persons.
65The principles in the Act intend to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person.
66The Criminal justice system is based on the principle of diminished moral blameworthiness and emphasizes rehabilitation and reintegration.
67It is to be fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.
68Although the outcome of Ms. Biggar’s driving conduct was completely devastating, the conduct that gave rise to the outcome cannot be described as the worst offence.
69The careless in this case consisted of not giving opportunity to the motorcyclist to proceed through the intersection freely without obstruction. This is failure to apply due care and attention to others using the roadway.
70The driving conduct must be denounced, and future motorists must be deterred. The proportionality analysis and hence the sentence are to reflect this reality.
71I have considered the submissions by both the Crown and the defence.
72The Ontario Court of Appeal has endorsed significant sentence reductions in cases involving guilty pleas. Even in cases where a guilty plea occurs without unique factors of weaknesses in the Crowns case, R v Pham, 2008 ONCA 421.
73Madison Biggar was convicted after a trial. This is not a case that falls under the direction of the Ontario Court of Appeal endorsing a significant sentence reduction.
74I conclude that a just a fair sentence to be as follows:
Fine
75With respect to the fine, the Crown submits a $4,500.00 fine plus victim impact costs.
76Defence submits Ms. Biggar’s limited ability to pay and asks the Court to consider $2,500.00 fine.
77I accept defence submission on the amount of fine and impose a $2,500.00 fine plus victim fine surcharge for a total payable $3,125.00.
78It's a fine that is appropriate and complies with the penalty in the legislation.
79It reflects the circumstances that Ms. Biggar is young, unskilled, has not been able to work since the collision due to PTSD. Recognizing her limited ability to generate a significant income, the Court will allow a lengthy period of time to pay the fine.
Probation
80I accept the joint submission on probation.
81This Court orders a probation period of 24 months. Madison Biggar, you will be under the supervision of a probation officer for the duration of 24 months with the following conditions:
(1) Report to a probation officer as directed. (2) Attend and actively participate in counselling for trauma/grief counselling directed by the probation officer, and not stop that counselling without the prior permission of the probation officer (counselling appointments to be conducted in person). (3) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any counselling programs. (4) Reside at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer. (5) Do not drive a motor vehicle for the period directed by the court and take a motor vehicle driver safety course prior to renewing your driver’s licence. (6) Do not communicate directly or indirectly with the family of Remington Chase Taylor.
Community Service
82I accept Crown’s submission on community service hours.
83You are to complete 250 hours of community service to the satisfaction of your probation officer.
84The community service hours will benefit the community as well as Ms. Biggar. Those who participate in community service work have been known to also benefit by an increase in self confidence and enhancing work skills which will no doubt assist in Ms. Biggar’s rehabilitation.
Licence Suspension
85To make a ruling on the license suspension, I’ve taken into consideration the submissions by both the Crown and defence counsel.
86As well as the statements by the defendant, Ms. Biggar, and the totality of the pre-sentence report.
87Furthermore, in applying parity I have considered the case law provided to me as discussed earlier, as well as other similar cases.
88Many are defendants that have entered guilty pleas and there has been a joint position on sentencing.
89I have also considered an unreported case, R v H(R).
90HR was also a 17-year-old driver who drove through a stop sign. The joint submission on penalty was accepted by the Court.
91The Court imposed a $6,000.00 fine and a three-year driving suspension. As a joint position on sentencing was proposed, I can surmise that it was after a guilty plea to the charge.
Driving Suspension
92The legislation prescribes a maximum of five years driving prohibition.
93Driving is not a right bestowed on everyone; it is a privilege granted to those who fulfill and pass extensive driving courses that include road safety and respect for other drivers on the road.
94Ms. Biggar pleaded not guilty to the offence of careless driving causing death. She has maintained this position since the incident, taking her matter to trial where no defense was mounted. In reviewing the victim impact statements, I am acutely aware of how agonizing this process has been for the victim’s family. Although Ms. Biggar stated at the sentencing hearing that she feels an insane amount of guilt for the accident and she never meant to hurt anyone, she did not take responsibility for her actions.
95The Crown submits that a four-year driving prohibition is applicable in the circumstances, whereas defense counsel submits that a two-year driving prohibition is more than a sufficient deterrent and sentence. I accept that Ms. Biggar is a novice driver and that continued delay in her return to the road may result in her having further apprehensions in driving in the future. However, it is my view that with additional road safety training and practice, Ms. Biggar will return to the road as a safer driver whenever that time may come. I find that a four-year driving prohibition is sufficient in the circumstances and will serve as both a general and specific deterrent in line with the fundamental principles of sentencing. A four-year driving prohibition will ensure that when Ms. Biggar returns to the road, she is an older, more mature individual who will have had sufficient time to reflect on road safety.
96I find that in light of no custodial sentence, a four-year driving prohibition is minimally appropriate for the circumstances and responds to general deterrence.
97It sends a message to the public that when there is a conviction for careless driving, and it causes death that the court takes it seriously by imposing a sentence that reflects the circumstances of the driving behaviour and the conviction entered after a trial.
Closing
98To the family of Remington Chase Taylor, I want to say that I appreciate your heartfelt statements. I saw how difficult it was for you to share your experiences and describing how his loss has impacted your lives. I am deeply sorry for your loss, and I wish to share with you that every time I see a motorcycle, I’m reminded of the tragic loss to all who knew Chase.
99To Madison Biggar, I sincerely hope that the probationary period that includes counselling will assist you with coping mechanisms to deal with the trauma that you will no doubt have to live with.
Released: January 16, 2024 Signed: Justice of the Peace T. Rotondi