CITATION: R. v. McGowan, 2026 ONCJ 130

DATE: February 4, 2026

INFORMATION NOS: 22-30001564, 22-30002576, 23-48103778, 23-48103799, 998-22-16180000

R. O’Brien Counsel for Todd McGowan

This is one of the most challenging and difficult sentencing cases related to driving offences which this court has had to consider over the many years of its judicial career. It is also one of the most egregious cases relating to a course of repetitive driving conduct, putting at risk other users of the road, parking lots, schoolyards, and places where the offender chose to drive, and the many police officers who were required to protect the public and were in numerous instances required to put their lives at risk to pursue and try to apprehend Mr. McGowan. Mr. McGowan is an offender who has chosen over the course of his life to make bad choices, to consume drugs, to drive dangerously, and one cannot help but ask why does he do this over and over again. The court ordered a psychiatric report at the request of counsel to potentially shed some light on why Mr. McGowan continues to commit these offences. Potentially that answers what would otherwise be an unanswered question. Mr. McGowan has been diagnosed with antisocial personality disorder, according to the DSM-5. It is a diagnosis which relates to reckless disregard for the safety of self and others, and a failure to conform to social norms with respect to lawful behaviours, resulting in recurrent interactions and apprehensions by police as well as legal charges. The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others.

The court also ordered a presentence report, which shed further light on his background and situation. In the context of this situation, with a multitude of offences constituting repetitive criminal behaviour, the court is challenged by the application of the principle of totality for many offences, and the principle of specific deterrence for an offender who has not been previously deterred by serious lengthy terms of incarceration, including lengthy penitentiary terms. That is the challenge before the court in this case.

Mr. Todd McGowan entered a guilty plea on April 7th, 2025, to multiple driving-related and other charges on six Informations, over the offence dates spanning over 2 years, starting April 6th, 2021, to and including the last offences on April 26th, 2023, that had been outstanding. Those charges and facts are set out below. It is to be noted that for many Informations before the court, the Crown indicated an intention to withdraw counts, but the facts were to be read into the record to be considered on sentence for those counts for which there were findings of guilt and for which sentences will be imposed. The case was put over for the preparation of a presentence report, a Form 6 report, as indicated earlier, under the Mental Health Act, and a Gladue report from Aboriginal Legal Services. The presentence report and the Form 6 report have been received and are exhibits in this matter. Aboriginal Legal Services has provided the court with a letter setting out the reasons why it will not prepare a Gladue report for Mr. McGowan. Mr. McGowan has been in presentence custody for a considerable period of time. The case is now before the court for the imposition of sentence. The Crown is seeking an extremely lengthy sentence, just under 20 years in the penitentiary, taking a position that it has articulated in detail, reducing its sentence position greatly based upon the principle of totality. The court will outline it later in greater detail. The defence seeks a sentence in the range of 14 years, reduced to 10 years in the penitentiary in light of totality, to allow Mr. McGowan some hope for the future.

THE FACTS:

A. Circumstances of the offences:

1.) Driving prohibition orders:

Mr. McGowan has a lengthy criminal record, which is before the court and will be noted below, beginning from the time he was a young person and continuing with regular and frequent entries while he was an adult. Relevant to the facts in this matter, he was, at the time of various offences, subject to numerous of the noted driving prohibition orders as follows:

March 13, 2012 - driving prohibition for 10

years, which expired March 13, 2022;

September 20th, 2018 - driving prohibition for 5 years, which expired September 20, 2023;
December 12th, 2018 - driving prohibition for 5 years, which expired December 12th, 2023;
August 23rd, 2019 - driving prohibition for

2 years, which expired August 23, 2021;

March 20th, 2020 - driving prohibition order for life.

2.) April 6th, 2021 - Information 9961:

The first offence date was April 6th, 2021. The Crown proceeded summarily on counts 1, 2, and 3 of the Information. Mr. McGowan entered pleas of guilt to dangerous driving, s. 320.13 of the Criminal Code, flight from police, s.320.17, and drive while prohibited, s.320.18. He was at the time of these offences subject to the five driving prohibition orders as set out above. The maximum term of imprisonment, given the summary election for each of these offences, is 2 years less a day incarceration.

The Information for those charges was sworn on May 18th, 2021, in Brampton.

The facts were as follows: On Tuesday, April 6th, 2021, at 8:59 a.m., police were on general patrol in the Pizza Nova plaza located at 3417 Derry Road, in the City of Mississauga. They observed a 2006 black Nissan Altima with no front plate parked in a private parking spot in this plaza. The rear plate was an Ontario licence plate, AZ 50963.

Todd McGowan was in the driver’s seat, and Caitlin DeFreitas was a passenger. Uniformed police officers approached Mr. McGowan with respect to the front plate. Constable Gonsalves asked Mr. McGowan for his driver’s licence, insurance, and registration. Mr. McGowan asked, “Why?” and said he was not doing anything wrong. The officer checked the rear plate and noted that it was for commercial motor vehicles only and would not be for a sedan.

The officer advised Mr. McGowan to turn off the vehicle and step out. Ms. DeFreitas reached over and turned off the vehicle but left the keys in the ignition. The officer asked Mr. McGowan to step out again and advised that he was investigating the vehicle as a stolen vehicle because of the commercial plate.

Mr. McGowan swore at the officer, rolled up his window, and drove directly at the officer. Fortunately, the officer was able to run behind his vehicle to shield himself. Mr. McGowan drove over the curb and off at a high rate of speed. He exited the parking lot and drove westbound on Derry Road, into oncoming eastbound traffic in the eastbound lanes. Given the dangers of a pursuit - there was medium traffic, and Mr. McGowan was driving dangerously quickly the wrong way - the officer did not pursue him. He advised on his radio what had happened.

Other officers attempted to stop the vehicle in uniformed vehicles with lights on. Mr. McGowan continued to flee at a high rate of speed, driving on the wrong side of the road and running red lights in attempts to evade police. In the interest of public safety, various police officers discontinued the pursuit.

The police received many calls as a result of the dangerous driving behaviour. Mr. McGowan later ditched the vehicle near the Super 8 hotel at Courtneypark Drive and Kennedy Road. He and Ms. DeFreitas then fled on foot but were located in the lobby of a nearby building at 6550 Danville Road in Mississauga. At 9:37 a.m., Mr. McGowan was placed under arrest.

There was an Appendix B, which was filed as one of the exhibits in the proceedings. It shows Mr. McGowan’s approximate route on April 6th, 2021. The route is just under 10 kilometres in length. It is to be noted that this route went around two portions of the perimeter of the very busy Toronto Pearson International Airport. Again, that is in evidence.

April 6th, 2021 release:

The accused was transported to 12 Division and released on a Form 10 that included the condition: “You must not occupy the driver’s seat of a motor vehicle.”

In August of 2021 the August 2019 driving prohibition expired. The four other prohibitions and the undertaking remained in effect.

A s. 524 application was subsequently brought by the Crown. Subsequently, in relation to that application, Mr. McGowan was released on a bail order on July 14th, 2022. That seems to have related to Informations 9661, 2576, and potentially, 1618. There were two sureties on this bail order, Ashley McGowan and David Buist, totaling $9,000. The conditions of this bail required him to reside with his surety, Ms. McGowan. He was to have a house arrest, except for medical emergencies or when he was in the direct and continuous presence of his sureties, and he was not to be in the driver’s seat of any motor vehicle and not to possess any keys or ignition devices to any motor vehicle. He also had a GPS monitoring term.

3.) December 19, 2021 - Information 1618:

The second set of charges related to December 19, 2021, some eight months after the first set of driving charges. At the time, in addition to the various relevant driving prohibition orders noted above, he was subject to the release order relating to the April 2021 charges and bound by the term that he not be in the driver’s seat of any motor vehicle and not possess any keys or ignition device to any motor vehicle.

Mr. McGowan pled guilty to charges on this Information of dangerous driving, s. 320.13; flight from police, s. 320.17; drive while prohibited, s. 320.18; fail to comply with an undertaking to not occupy the driver’s seat of a motor vehicle, s. 145(4)(a). The Crown proceeded summarily. As a result, the maximum terms of imprisonment for each of these offences is 2 years less a day.

The facts were as follows: On Sunday, December 19, 2021, at 3:10 in the afternoon, police received a call from Dilip Patel, an employee at Safe Self Storage located at 2480 Argentia Road, Mississauga, reporting a silver BMW sedan that was running with a male driver, later identified as Mr. McGowan, passed out behind the wheel.

At 3:24 p.m., police arrived and located the vehicle in front of storage unit D13 within the Safe Self Storage compound. Officers pulled their marked vehicles toward Mr. McGowan’s vehicle. One pulled immediately ahead of him, and the other police officer immediately behind, to block him in. The officers could smell marijuana from the vehicle. They knocked on his window to wake him up.

Mr. McGowan refused to get out of the vehicle. As the officers attempted to speak to him, Mr. McGowan backed his vehicle into the police vehicle that was behind him and began to drive away. The officers attempted to block him in but were unsuccessful. He then drove towards the exit of the storage facility and came close to hitting firefighters who were standing by their vehicle.

The officers were able to get in front of Mr. McGowan’s vehicle and motioned at him to stop. They were able to observe him in the driver’s seat. Mr. McGowan then accelerated quickly and officers followed. Mr. McGowan lost control slightly. Officer Stacey made intentional contact with him in order to stop him.

The vehicle was disabled, and then Mr. McGowan fled on foot. He climbed underneath the perimeter fence and fled through a field.

Officers followed on foot but were unable to catch up.

Further investigation revealed that Mr. McGowan had accessed Safe Self Storage using the gate code that is assigned to him. Mr. Patel, who was the employee on site, also advised that he had seen Mr. McGowan access his storage locker, number D13, on numerous occasions in the past with the same vehicle.

A warrant in the first was sought and issued. There is in evidence Appendix D which shows Mr. McGowan’s approximate route of driving on that date, December 19 of 2021. The Information was sworn on February 10th of 2022.

Mr. McGowan’s first appearance in court was May 25th, 2022, when the case was remanded for a bail hearing. Subsequently, he was released on a bail order on July 14th, 2022, on an order that the court noted earlier, with two sureties, Ashley McGowan and David Buist, totaling $9,000. He also had conditions, including that he reside with his surety. He had a house arrest with limited exceptions, as noted above, and he was not to be in the driver’s seat of any motor vehicle, et cetera. He also had a GPS monitoring term.

4.) December 24th, 2021, Christmas Eve - Information 2576:

Mr. McGowan entered a guilty plea to the charge of drive while prohibited in relation to this charge. The Crown proceeded summarily. The maximum term of imprisonment for this offence is 2 years less a day.

On that day, Christmas Eve, at around 6:00 a.m., Mr. McGowan attended the Shoppers Drug Mart at 2251 Lawrence Avenue East in Toronto with Baxter Parsons. They left the area shortly thereafter in a vehicle driven by Mr. McGowan.

It is to be noted that in addition to the driving prohibition orders he was subject to at the time of this offence, he was on a release for the bail order which was noted above, and required to not occupy the driver’s seat of a motor vehicle. He also had a house arrest term, as noted above.

It appears from the Information that he was not arrested on these charges until May 18th, 2022.

He was released on a bail order on June 24th, 2022, with similar terms to the other order, naming two sureties for the total amount of $9,000, a similar house arrest, an exception term, also a non-contact term relating to Baxter Parsons, and to stay away from an address in relation to other allegations before the court. He was also not to be in the front seat of any motor vehicle, and to be subject to GPS monitoring.

5.) February 17, 2022 - Information 1564:

Mr. McGowan entered pleas of guilt to charges of dangerous driving, flight from police, fail to stop after collision, s. 320.16(1), and drive while prohibited in relation to the driving charges on February 17, 2022. The Crown proceeded summarily. The maximum term of incarceration for each of these offences is 2 years less a day incarceration.

On February 17th of 2022, shortly after midnight, P.C. Reise was working in a uniform capacity, operating a fully marked police car with the in- car camera system functioning. He was at 3941 Lawrence Avenue East in Toronto when he observed a vehicle parked in the fire route of the driveway.

The officer pulled up beside the vehicle and immediately recognized the driver as Mr. McGowan and the front passenger as Caitlin DeFreitas. The officer was aware that Mr. McGowan was prohibited from driving and that there was a warrant outstanding for his arrest from Peel.

The officer stopped beside Mr. McGowan’s vehicle and called for backup. Mr. McGowan then began to drive away. The officer told him to stop, and Mr. McGowan proceeded to strike the left rear corner of the police vehicle with his vehicle and then fled eastbound on Lawrence Avenue East. The officer activated his emergency equipment and followed the fleeing vehicle.

Mr. McGowan continued eastbound, but in the westbound lanes of Lawrence Avenue East at Galloway Road. He continued to drive in the westbound lanes through the intersection at Kingston Road, then moved back into the eastbound lanes. The accused made no attempt to stop, and he drove through a stale red light at Lawrence Avenue East and Morningside Avenue. In the interest of public safety, the officer discontinued the pursuit and lost sight of the vehicle as it continued eastbound.

Officers checked the area for the vehicle and observed it to be at Island Road, still traveling at a high rate of speed. The vehicle was last seen traveling eastbound on the 401 highway. A warrant was sought and issued for Mr. McGowan’s arrest.

On March 10th, 2022, Mr. McGowan was arrested by York Regional Police for a separate incident.

The warrant in relation to the February 17, 2022 matter came to light, and he was transported to Toronto Police 42 Division. While in custody, Mr. McGowan was arrested on the December 19th, 2021 charges from Peel and on the December 24th, 2021 charges from Toronto, pursuant to judges’ orders.

While he was in custody prior to being released on bail, his daughter was born in April of 2022. Later, on June 24th, 2022, he was released on a bail order with a surety for $9,000. He was in the community, as was his daughter at that point in time.

On June 24th, 2022, Mr. McGowan had a bail hearing on the two Toronto Informations ending in 1564 and 2576. He was released on a release order with two sureties, Ashley McGowan, his sister, and David Buist, in the total amount of $9,000. That is in Appendix F before the court. The conditions of the release included house arrest, except for medical emergencies or when with his surety, together with GPS monitoring. The release also included the condition to not be in the front seat of any motor vehicle.

He was released on the bail order for the charges in this Information, in addition to the charges in Information 2576 noted above.

On July 14th, 2022, Mr. McGowan had a bail hearing on the two Peel Informations ending in 1618 and 9661. As in Toronto, he was released on a release order with the two sureties, Ashley McGowan and David Buist, in the total amount of $9,000, with house arrest and GPS monitoring, which is Appendix G in the exhibits. The release also included a condition not to be in the driver’s seat of a motor vehicle and not to possess any keys or ignition device to any motor vehicle.

The court would interject some of the timeline for the offender at this point. It assists in understanding the situation for sentence in a better focus. After his daughter was born, according to the presentence report, she was taken into the care of Native Family and Child after birth. The offender’s sister initially started to visit the child and was starting the process to gain custody of his daughter. After a disagreement, his sister pulled his bail, and Mr. McGowan was on the run for seven months. The court does not have the information as to when the bail was pulled or when he started his period of time that he indicated in the PSR he was on the run.

March 13, 2022, was the expiry of another driving prohibition order. That was the driving prohibition order from March of 2012. That was the 10-year order arising from the very serious and significant sentence that he received in relation to those driving offences. However, three other driving prohibition orders remained in effect.

6.) September 23, 2022 - Information 3799:

A guilty plea was entered for failure to appear in court, s. 145(2)(a), on September 23rd, 2022, which was in relation to an appearance to be in a Toronto court. On that, the Crown proceeded by indictment. Mr. McGowan was required to attend court September 23rd, 2022, at 1911 Eglinton Avenue East in Toronto. He did not attend court as required, and a bench warrant was issued for his arrest. The maximum term of imprisonment for this offence is 2 years incarceration.

7.) April 20th, 2023 - Information 3799:

Mr. McGowan entered guilty pleas for charges of fail to comply with release, s. 145(5)(a), flight from police, s. 320.17, and drive while prohibited, s. 320.18, in relation to April 20th, 2023. The Crown proceeded by indictment on these charges. As a result, the maximum term of imprisonment for the fail to comply charge is 2 years incarceration, and for each of the flight from police and drive while prohibited, 10 years incarceration for each.

On Thursday, April 20th, 2023, at around 10:40 in the morning, police were at 22 Bowhill Crescent in Toronto. They were there to execute an arrest warrant on a female, and they had placed her under arrest.

While in the basement apartment with the female, Mr. McGowan entered the apartment and came down the stairs. He appeared to be surprised to see the officers in the basement. He locked eyes with the officer in the basement. P.C. Reise recognized Mr. McGowan immediately.

Mr. McGowan fled back up the stairs. He then got into the driver’s seat of a black BMW that was parked in the driveway. No one else was in the vehicle. He backed the car away from the address and fled onto Bowhill Crescent. Police were able to get to their marked police vehicle and they attempted to intercept the BMW on the other side of the crescent. The vehicle was coming towards the marked police car.

Mr. McGowan then stopped the vehicle and turned the vehicle into the schoolyard at Pleasant View Middle School. The officer driving the marked police car followed the accused through the schoolyard and was able to see the rear Quebec marker, FSN 2326. Thankfully, there were no students outside for recess or any other reason at the time of this event. As indicated earlier, this was shortly after 10:40 in the morning on a Thursday in April.

Officers activated the overhead lights on the police vehicle. Mr. McGowan, still operating the BMW, then fled from that schoolyard onto Van Horne Avenue westbound, then north onto Bickerton Crescent. The vehicle was followed back to Van Horne Avenue. Mr. McGowan did not attempt to stop for the police.

The pursuit had to be discontinued. The car was last observed southbound on Victoria Park Avenue.

Mr. McGowan was arrested after committing a series of other driving-related charges, as noted below, on April 26th, 2023, after which he has been in custody.

The driving that was indicated above was captured on the in-car camera of police car 4321, which is in evidence as Appendix H.

8.) April 26th, 2023 - Information 3778:

Six days later, on April 26th, 2023, while Mr. McGowan remained out of custody and had not yet been arrested on the April 20th charges, he was charged with a number of similar driving-related offences. He entered a guilty plea to charges of fail to stop after collision, s. 320.16; drive while prohibited, s. 320.18; dangerous driving, s. 320.13; flight from police, s. 320.17; impaired operation of a vehicle, s. 320.14; and fail to comply with release, which was the house arrest term, s. 145(5)(a). On these charges, the Crown proceeded by indictment. As a result, for each of these offences, other than the fail to comply, the maximum term of imprisonment is 10 years incarceration. For the breach of house arrest, the maximum term of imprisonment is 2 years incarceration.

On April 26th, 2023, shortly after 9:00 a.m., Patrick Reid was doing housekeeping at the City Automotive at 301 Rexdale Boulevard in Toronto. He observed a black BMW 320i, Quebec plate FSN2326, stopped blocking the west driveway of the 301 Rexdale Boulevard area, facing Rexdale. Mr. Reid then approached the car and observed a solo male occupant, later identified by police as Mr. McGowan, and he was sleeping behind the wheel.

Mr. McGowan’s ability to operate that vehicle was impaired by cocaine or alcohol or both at the time. Mr. Reid woke up Mr. McGowan and asked him to park his car in front of the building. Mr. Reid noticed that the BMW hood was slightly raised above the grill, suggesting that the car was possibly in a previous collision. Mr. McGowan parked the BMW in front of the building. Mr. Reid went inside to continue his work.

At some point, Mr. Reid noticed the BMW slowly moving across the front parking lot and then colliding with a grey Dodge Caravan that was parked in front of the business. The Dodge Caravan sustained a dent to its front left side.

Mr. Reid exited the building again and spoke to Mr. McGowan about the damage. Mr. McGowan told Mr. Reid that he was very tired, and instead of checking on the damages to both vehicles, Mr. McGowan reversed his car and parked it closer to the middle of the building. At that point, Mr. Reid had concerns that the male, who was Mr. McGowan, might be impaired, and he called 911.

Uniformed police officers operating marked police vehicles arrived and located Mr. McGowan asleep in the driver’s side of the BMW. P.C. Saeed approached the vehicle and noted that it was running and it was in reverse, but it was not moving. It had been reversed into a parking spot.

As P.C. Saeed updated dispatch, Mr. McGowan woke up and saw P.C. Saeed, who told him to exit from the vehicle. Mr. McGowan responded by putting the vehicle in drive and accelerating away from P.C. Saeed. Mr. McGowan then collided with the front scout car bumper as he went around the vehicle.

Mr. McGowan proceeded to turn northbound on Rexdale Boulevard and then continued to cross active lanes of eastbound traffic, jumping a median and driving into oncoming traffic. Mr. McGowan then collided with an SUV that was traveling westbound.

Officers who had been called to the scene observed the collision. They attempted to block Mr. McGowan, and he collided with the marked police vehicle that was attempting to stop him. The airbags deployed in the BMW being operated by Mr. McGowan. The driver’s airbag was also deployed in the police car.

Mr. McGowan was removed from the vehicle and arrested. He was transported to the hospital as he was complaining of chest pain.

A crack pipe and scale were located inside the vehicle that had been driven by Mr. McGowan. Two civilian vehicles and three police vehicles were damaged in the collisions. Appendix I, in evidence, contains images of the damage to the vehicles and their positions.

4. Circumstances of the offender:

As indicated above, the court has sought out various forms of information to shed light on the background of the offender and potentially explore what has driven him to commit the multitude of offences before this court for sentence and potentially the earlier charges on his criminal record. In that regard, the court has obtained a presentence report and the Form 6 mental health assessment by Dr. Choptiany, which are helpful. The court also draws upon submissions from defence counsel to amplify and add to that information. Defence counsel has also put various exhibits before the court.

The court would note that defence counsel initially indicated his intention to seek out a Gladue report, but his subsequent position was that he chose not to do so. Further to that, more recently, defence counsel did request the preparation of a Gladue report from Aboriginal Legal Services. The presentence report had indicated that Mr. McGowan identified as First Nations.

However, the court now has the benefit of a letter from Ms. Amanda General, Senior Manager, Gladue Writer Program, of Aboriginal Legal Services. This letter sets out the basis upon which ALS will not provide a report for Mr. McGowan, and this is set out further in the section dealing with the circumstances of the offender, and it is also an exhibit before the court.

There is no other information that has been put before the court to confirm or deny whether Mr. McGowan has an Indigenous background, and if so, what circumstances might have brought him before this court with the charges for which he is to be sentenced. Accordingly, it is very difficult to determine how the court might assess this factor in imposing sentence.

There is also a very lengthy criminal record for Mr. McGowan, which is before the court as an exhibit. It indicates as follows, starting with youth entries:

January 18, 2002, Brampton, mischief under $5,000, fail to comply with recognizance, probation for 12 months on each charge concurrent.

Then, February 3rd, 2003, again in Brampton Youth Court, charges of break and enter and fail to comply with disposition, for which he was given 2 years probation on each charge concurrent.

Then, February 12th, 2004, again in Brampton Youth Court, attempt break and enter with intent, for which he was also given probation for 1 year.

Following that, October 5 of 2005, again in Brampton Youth Court, for charges of fail to appear in court, fail to comply with disposition, and assault with a weapon, he was given time served for the first two charges of 29 days, to be followed by 2 years on each charge concurrent. Finally, on the assault with a weapon, there was recognition of the same 29 days time served, after which he was given 2 years probation and a mandatory or discretionary prohibition order under s. 51 of the YCJ Act.

Following that, December 8, 2005, again Brampton Youth Justice Court, for a charge of assault, he was given time served of 37 days, to be followed by probation of 15 months.

Following that, again, March 15, 2006, Brampton Youth Court, for charges of obstruct peace officer and fail to comply with disposition, he was given time served, recognition of 19 days, to be following by 1 year probation.

There is next an adult entry, it appears, August 30th of 2006, in Brampton, for which he was sentenced on charges of use of credit card, for which there had been 45 days time served - sorry - eight days presentence custody, and there was a sentence of 45 days jail and 1 year probation.

In addition to that, on charges of attempt theft and possession of property obtained, it appears that he was given 45 days jail and 1 year probation concurrent.

Following that he has his final youth court entry, which is September 12th of 2006, youth court, but this time in Burlington, for a charge of theft under, for which he was given

15 months probation.

The next entry on his adult record is September 22, 2008, as it related to the following three charges: possession of property obtained by crime, escape lawful custody, and possession of credit card, he was given recognition for 47 days presentence custody and given a sentence of 3 months jail, to be followed by 24 months probation on each charge concurrent.

Following that, for a charge of theft under, he was given a sentence of 60 days concurrent.

Then, for charges of possession of property obtained by crime, two charges, and a count of uttering, he was given recognition for 47 days of presentence custody credit, and he was given a sentence of 10 days jail, to be followed by 2 years probation concurrent.

Then, on a charge of uttering, after recognition of 47 days presentence custody credit, he was given a sentence of 10 days jail and one year probation concurrent.

Following that, again in Burlington, July 23rd, 2009, for a charge of assault cause bodily harm, he was given a sentence of an eight-month conditional sentence, to be followed by 12 months probation and a s. 109 mandatory weapons prohibition order.

Then, September 8th, 2009, he went back to Brampton for break/enter and commit, for which he had been given recognition of 59 days presentence custody credit, and he was given 60 days jail, to be followed by probation for 12 months. At the same time, he had a fail to comply with probation order for which he was given 60 days and 12 months probation concurrent.

Then, in Milton, November 4th, 2009, for a charge of theft over, he was given a 90 day jail sentence and 1 year probation.

Then, in Toronto, on June 18th, 2010, he had a conviction and sentence for unlawfully at large, for which he was given 30 days jail.

Following that, back in Brampton, June 23rd, 2010, for a charge of assault, there was recognition for 1 day presentence custody, and he was given a further 4 days jail.

Then there are a series of charges, which are the most serious earlier charges on his record.

March 13, 2012, there were six charges at that time that were dealt with by way of sentence before the court. This was in Milton, Ontario. The first one was for impaired cause death. On that charge he was given credit of 2 years presentence custody and given a sentence of 3 years jail after recognition of that credit. Then, with respect to impaired driving cause bodily harm, four charges, he was given 3 years incarceration on each charge concurrent. Then, for a charge of dangerous operation causing death, he was given a similar 3 year concurrent sentence. Similarly, dangerous driving cause bodily harm, four counts, he was given a similar 3 year concurrent sentence. Then, for the charge of fail to stop at scene of accident involving bodily harm or death, he was given a sentence of 2 years jail consecutive. In addition to that, he was given a sentence for failing to stop at the scene of an accident involving bodily harm, three charges, 2 years on each charge concurrent, together with a 10 year driving prohibition, at least indicated by CPIC.

Following that, February 5th, 2018, in Goderich, he was sentenced for drive while disqualified, for which he was given 21 days jail, and take motor vehicle without consent, for which he was given 18 days jail consecutive.

There’s an entry for September 20th, 2018, in Milton, for which the Crown has corrected the criminal record. The Crown has indicated it was a guilty plea on September 20th, but the sentencing was on October 18th. It appears that on the drive while disqualified, the sentence was 60 days jail and 2 years probation after recognition for 113 days presentence credit. He was also prohibited from operating a motor vehicle for 5 years. He also was sentenced for theft under to 60 days jail concurrent, and as well given a sentence which was concurrent for possession of proceeds of property obtained by crime. And so on.

The paramount sentencing principles in this case are deterrence and denunciation for these types of offences, but as it relates to Mr. McGowan, also specific deterrence. The Crown also relies upon the principle of separation from society as an important sentencing objective for Mr. McGowan. As indicated, his criminal record is very extensive and includes 56 convictions as an adult and 12 convictions in Youth Justice Court, for a total of 68 convictions.

Just by way of summary, although the court did read the entries, starting in August of 2006, he had three convictions; and then in 2008, he had nine convictions; 2009, four convictions; 2010, two convictions, which totaled 18 to that point; 2012, the very serious driving offences resulting in death and bodily harm to various victims, for which there were 14 convictions; 2018, he had a further 15 convictions; 2019, a further conviction; 2020, a further eight convictions.

Then by way of breakdown prior to these charges, he has had five convictions for impaired driving cause bodily harm; one conviction for impaired driving cause death; four for dangerous driving cause bodily harm; one for dangerous driving cause death; dangerous driving simpliciter, one conviction; fail to stop at the scene of an accident involving death or bodily harm, four convictions; drive while disqualified or drive while prohibited, nine convictions; flight while pursued by a peace officer, one conviction; impaired driving, one conviction; fail or refuse sample, one conviction.

As indicated, the most serious set of driving offences and penalties was in 2012, where his driving caused the death of his friend and injuries to numerous other people in a motor vehicle collision, after which Mr. McGowan also had injuries. Nonetheless, that very serious penitentiary sentence did not deter Mr. McGowan from his subsequent numerous driving offences.

His record also displays a pattern of breaching court orders. As noted by the Crown in submissions, he has had many convictions for disobeying court orders. In addition to the drive while prohibited and drive while disqualified convictions set out above, he has convictions for one count of failing to comply with release, three counts of failing to comply with a youth sentence or disposition, one count of failing to appear in court, one of fail to comply with probation, one of escaping lawful custody, and one of being unlawfully at large.

In addition, the court notes that when he was released from serving various terms of imprisonment, he has had various releases suspended, including the following: 2012, on March 28th, he arrived in federal custody. Then, on July 9th of 2015, he was released on statutory release. However, shortly after that, September 25 of 2015, that release was suspended. He entered back into federal custody on October 2nd of 2015 and remained there. He was re-released on statutory release on September 13th of 2016. However, that release was also suspended February 20th, 2017.

The Crown makes the submission that Mr. McGowan was subject to numerous sentences and was almost always continuously subject to supervision arising from court sentences or in jail for many years of his life.

The Crown relies on R. v. Smith, 2012 ONSC 3089, and in particular, paras. 46 and 48, which state as follows:

“[46] Since 1988, 24 years, Mr. Smith has almost habitually been serving a sentence, subject to probation or a recognizance: none of which have curtailed his criminality.

48Perhaps of more importance for the purpose of this proceeding is Mr. Smith’s inability to comply with court orders. Mr. Smith has 25 convictions for his failure to comply with court orders. It appears that on two occasions, he was unlawfully at large. He also has eight convictions for either obstructing police or attempting to obstruct police, demonstrating that he has little regard for our criminal justice system."

The submissions of the defence are that Mr. McGowan has been in and out of trouble and in and out of jail for most of his life. The court cannot disagree with the position and submissions of both counsel in this regard.

The presentence report is fairly comprehensive and is longer than most presentence reports which come before this court. It spans 16 pages in length.

Mr. McGowan is 37 years of age, having a date of birth in March of 1988. He is a Canadian citizen, and he is single, with no dependents. He does, however, have a daughter who is currently three years of age, having a date of birth in April of 2022. She was initially placed in care, but subsequently, Brittany Nelson, a family friend, has been, since January of 2024, given custody of her. Mr. McGowan has been in custody since Brittany Nelson has had custody of his daughter, but through the presentence report, the court is advised that he tries to speak with her as often as he can. Although he has made reference to his daughter being a motivation for him to be rehabilitated and to do better, essentially, the court notes in the last two series of charges that were committed in April 2023, when he was out of custody, she was there, and she was one year of age. It was obviously not a motivation for him to stay out of trouble then.

It is clear that Mr. McGowan, however, did not have a good maternal influence in his life from the time he was born. His mother was not a typical mother figure. She suffered from excessive use of drugs or alcohol. She tried to kidnap Mr. McGowan and his sister when there were ongoing custody battles with their father. Ultimately, she sent both of them back to their father, and this was all when Mr. McGowan was between two and three years of age. He had virtually no relationship with her after that. His father would come home from work and, prior to that, would find her intoxicated with the children in the home. She passed away in her early fifties, having suffered from the excessive use of drugs and alcohol, which contributed to sclerosis of her liver, and he was given a pass while incarcerated to attend her burial. He did have a good relationship with his father, whom he has referred to as his best friend. The court has seen his father and his sister in court when this case has been before the court in the past. Throughout all of what was no doubt an incredible series of challenges in raising Mr. McGowan and supporting him through his criminal charges, including as a surety, Mr. McGowan’s father has remained very supportive of Mr. McGowan. Mr. McGowan indicated that his father did not raise him to behave in such a manner and did not condone his offending behaviour.

Mr. McGowan has also had support from his sister and Brittany Nelson, the family friend who currently has custody of his child. His sister was previously a surety, but she pulled his bail, and he was subsequently on the run for seven months.

Mr. McGowan’s education consists of a high school completion, for which the court has a certificate from 2014, and a college diploma, which was completed during his last penitentiary sentence. He has had work experience in roofing, moving, and warehousing. Following the completion of his penitentiary sentence, he had employment in carpentry and worked in renovation construction and installation. While at Toronto South he worked in the kitchen unit for two years, but has since been removed from those privileges due to misconducts. Mr. McGowan explained it was due to conflicting personalities, although this was not able to be confirmed by the author of the presentence report.

Mr. McGowan began consuming alcohol at 11 years and consumed excessively between 16 and 18 years. This slowed down when he was between 18 and 22 years. During his penitentiary sentence, he completed the National Substance Abuse Program and became an occasional drinker.

He first started using cocaine and marijuana between the ages of 14 and 16 years. He had friends involved in drug dealing, and he then took up the same behaviour. He described cocaine as the heart of his issues in continuing to commit further offences.

In 2012 he was convicted of multiple driving offences, including impaired driving causing death. His childhood best friend died in that incident, and Mr. McGowan appears to have unresolved issues arising from that death. His cousin sustained a serious injury, and there were also three females in the vehicle. They had all been drinking at a bar, and Mr. McGowan missed a turn and hit a tree. Mr. McGowan fractured his hips and had some cuts to his arm and head. The report indicates that Mr. McGowan may require continued mental health support to deal with that unresolved trauma.

There is no doubt that after he was released from serving his penitentiary sentence, Mr. McGowan started to make positive changes in his life. It is truly unfortunate that he could not keep up that progress. He has reflected that his criminal conduct endangers himself and others around him and expressed remorse for that.

Notwithstanding his self-reflection through his statements, as it relates to the current offences, he deflects responsibility to the author of the presentence report, attributing his actions to drug use and his peer group. The court cannot help but note that he is a 37-year- old man, and he is blaming his friends and peers for his conduct. He also has a long-standing drug dependency that he has previously battled and conquered, and yet, continues to blame his recurring use on the drugs he takes into his body.

In the presentence report, he acknowledged that he would use drugs and subsequently operate a motor vehicle, despite being aware of probable consequences. He indicated that his drug use would prevent him from making informed decisions.

He has admitted that he consumed drugs and then operated a motor vehicle. This is a significant aggravating factor for the offences where he was not able to be apprehended by the police to detect and measure his level of impairment. It is potentially also a motivating factor for him to elude the police and engage in dangerous driving to evade apprehension and being charged with impaired operation. Each time he successfully fled from the police, they were unable to investigate whether there was any impaired ability to drive arising from drugs and/or alcohol. It is also unfortunate that as a 37-year-old man he will not take responsibility for his actions. The lack of self-reflection for these offences does not bode well for his prospects of rehabilitation at this point in time. He stated he expressed remorse and said he wished he had treatment before committing the offences. And yet, this court would note, he was rehabilitated regarding drug dependency after serving the penitentiary sentence, it just did not have a continuing positive effect on him. He went right back to taking drugs and blaming the drugs for his conduct. The court finds that his dependency on cocaine is not a mitigating circumstance.

Mr. McGowan also expresses a wish to move forward and focus on the goal of being a good dad. The court is mindful of the fact that his daughter was born during the period of the offences before the court, and she was taken by Native Child and Family Services and not in his care. One would have thought that if the birth of his child motivated him to turn his life around and make sustained good choices in his life, this would have happened around that time. It did not. From the information before the court, Mr. McGowan was released on bail in July of 2022, when his daughter was approximately three months old, and he remained out of custody until April 26th, 2023, when his daughter was approximately one year old. That was a period of approximately nine months after his daughter was born that he could have spent with his daughter, and yet, he continued to take drugs and commit more and more offences. He has been in custody since April 26th, 2023.

For this reason, again considering past behaviour and conduct to assess future promises to do better and to be motivated to rehabilitate himself because he has a daughter, the court questions the genuineness of those statements in his statement to the court.

Ms. Nelson and others around him, although perhaps not his sister, seem to provide ongoing unquestioning support for Mr. McGowan, and yet, he continues to make mistakes, continues to go forward in a consistent and repeated pattern of continuing to commit very serious offences that put members of the public, the police officers who investigate him, and others at serious risk of injury or death arising from his driving conduct.

The court also notes that while he was on release, he lacked motivation to address his mental health issues. He had in fact been referred to a psychologist and had access to that resource, which many other offenders are not able to be offered, and yet, he missed his appointments. He missed his chance. He effectively gave up that chance of rehabilitation by simply not attending appointments. And yet, as noted above, he said he wished he had been provided support for his issues while on release. The court cannot escape making the obvious observation that he says he wants help, but he won’t follow through when he is in the community. He cannot continue to deflect responsibility and blame his criminal behaviour on drugs and mental health issues that he is truly and genuinely not prepared to address while in the community.

While he is in the community, things seem to fall apart. At 37 years of age, he cannot keep a sustained healthy, non-criminal lifestyle. The only time rehabilitation seems to work for Mr. McGowan is when he is in jail. The court cannot put him in jail for the rest of his life, nor is the court going to do that.

While the court finds some favour with the fact that Mr. McGowan recently, while in custody, completed numerous programs and obtained certificates, that is entirely in keeping with his past behaviour. He tends to do well while in custody but does not address rehabilitation issues when he is out of custody.

In an interesting revelation to Dr. Choptiany, Mr. McGowan stated, as replicated at page 10 of that report:

“Mr. McGowan reported that he knows how to work, to be a good person, abide by the law, and refrain from criminal activity. If he was not doing substances, his judgment would not be impaired, and he would be scared to drive in fear of the legal ramifications. However, as soon as he resumes drug use, he becomes a different person, who hides away from his family and socializes with people who use drugs. The only time he has been able to abstain from using substances is while in custody and while being closely supervised. He reported that while he was living at the halfway house and was being monitored, his urine drug screens were negative, and he abstained from substance use. He was also working. After his falling out at the cookie company, he started to associate with substance-using peers and started selling and using cocaine.”

The mental health assessment by Dr. Choptiany covered a number of issues mentioned in the presentence report and commented on other aspects related to Mr. McGowan. He summarized that Mr. McGowan’s childhood was good, although it had its ups and downs, that he was neither abused nor neglected during his upbringing. His father always made sure they had clothing and a place to stay. He clearly raised Mr. McGowan as a single parent for most of Mr. McGowan’s childhood.

In terms of his behaviour, Mr. McGowan was frequently in trouble. He described himself as a hyperactive child. He was suspended and expelled from schools starting in grades two and three. His first criminal behaviour started when he was too young to be charged. It continued through his youth, as indicated in the report at page 3.

Dr. Choptiany reviewed various medical records relating to hospital visits, including for injuries to his knee and ribs, which the court has reviewed.

He related that he started using cocaine and crack cocaine after his release from the penitentiary after his 6-year sentence. The court would note the information in the presentence report that he started using cocaine at 14 to 16 years.

His partner, who was the mother of his child, and Mr. McGowan were moving from place to place, evading the police for a driving charge. She was using fentanyl while pregnant and abandoned his child when she was born. She had moved in with Mr. McGowan’s sister just prior to that time. He has had two other relationships with women after his release from the Pen.

As it relates to his penitentiary sentence, it was indicated that he was sentenced to 7 years incarceration, which included 5 years, which was at Pittsburgh, then Joyceville for 2 years, then 1 year at Fernbrook, 90 days at Millhaven, and 2 years at Maplehurst. He has more recently been primarily detained at Maplehurst but also at the Toronto South Detention Centre. In terms of his institutional history, Dr. Choptiany stated at page 7 that he has not engaged in any problematic or impulsive behaviour in custody. He has not incurred any institutional misconduct. The court is not sure how to take that in light of what happened with the position working in the kitchen, but I don’t make anything of that.

Dr. Choptiany has diagnosed Mr. McGowan as suffering from substance abuse disorder (alcohol, cannabis, and stimulants) and antisocial personality disorder, at page 11 of his report.

As it relates to the substance use disorder, he indicated that more recently cocaine has been his drug of choice. Dr. Choptiany indicated his prior success in addictions programming while in custody and his capacity to maintain abstinence for extended periods while in custody or under close supervision. However, he is at considerable risk of relapse following release in the absence of appropriate supervision, according to Dr. Choptiany.

He was diagnosed with antisocial personality disorder given his past behaviour. The report indicates:

“The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of 15, as indicated by three or more of:

Failure to conform to social norms with respect to lawful behaviours;
Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure;
Impulsivity or a failure to plan ahead;
Irritability and aggressiveness;
Reckless disregard for the safety of self or others;
Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations; and
Lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another.”

As indicated in the report, this is an extremely significant diagnosis and potential root explanation for Mr. McGowan’s continuous and repetitive behaviour of criminal conduct, putting other members of society at risk of injury or death from his driving offences. As an adult he has a history of impulsivity and failure to plan ahead, a reckless disregard for the safety of self and others, and a failure to conform to social norms with respect to lawful behaviours, resulting in recurrent interactions and apprehensions by police, as well as legal charges.

Although he reported experiencing some trauma, such as nightmares and flashbacks, due to the 2010 vehicle fatality for which he was convicted, according to Dr. Choptiany he does not have PTSD arising from this incident where he caused the death of his friend and injuries to others.

Dr. Choptiany made a series of recommendations on page 12 of his report that the court will consider with respect to components of his sentence and recommendations to the correctional authorities.

As it relates to Mr. McGowan’s comment that he has an Indigenous background arising from his mother’s background, the court considers the letter from Ms. Amanda General, as indicated above. This letter sets out the basis upon which Aboriginal Legal Services will not provide a report for Mr. McGowan.

The letter sets out the attempts made by Lucas Laporta, the ALS Gladue writer for the Toronto catchment area. His mother was identified as Frances McGowan, and she died on November 11th, 2012. Mr. McGowan indicated that his mother was from Six Nations of the Grand River but had no further information about her Indigenous history. The membership office of Six Nations had no records of Frances McGowan.

Mr. McGowan could not speak about his experiences as an Indigenous person or the experiences of his family members. The report indicates that while ALS is unsure about the specific nature of his Indigenous ancestry, and even if it could be confirmed, ALS is unable to address how being an Indigenous person has affected his life circumstances. There is no way to comment upon whether he has been influenced and affected by any Indigenous ancestry, either directly or by systemic and historical factors.

There is no other information that has been put before the court to confirm or deny whether he has an Indigenous background, and if so, what circumstances might have brought him before the court with the charges for which he is to be sentenced. Accordingly, it is very difficult to determine how the court might assess this factor in imposing sentence. See also R. v. Crocker, 2018 ONCA 600, at paras. 10 to 12 and R. v. Alexis, 2024 ONCA 693, at paras 4 and 5.

The court does not have any information to assist in this regard, notwithstanding s. 718.2(e) of the Criminal Code and the numerous delays from the date of the guilty plea to this eventual sentencing date seeking additional materials. In oral submissions, the defence relies upon the circumstances of Mr. McGowan’s mother, and that even if she did not have an Indigenous background, Mr. McGowan was affected by her passing away at a very young age, arising from her substance abuse. So, while the defence does not rely specifically on Mr. McGowan having an Indigenous background, he relies upon the circumstances of Mr. McGowan’s mother and her addiction impacting on Mr. McGowan’s life. The court does accept that submission, as he lost his mother at a very young age, and that would have had an impact on him.

While in presentence custody, Mr. McGowan has completed a series of courses, for which certificates were filed in evidence. These programs and certificates relate to the following:

Addiction Services for CAMH;
Food Handler Certification in Basics;
Food Handler Certificate Card;
Certificate of Completion - 17 Core Life Skills, May 13th, 17 hours.

These are all certificates:

Drug and Alcohol Awareness Program;
Building Up Black Speaker Series;
Planning for Discharge, Men’s Education Session;
Use of Leisure Time, March 23rd, 2024;
Looking for Work, Men’s Education Lifestyle;
Role Setting, Men’s Education, Life Skills;
Setting Up a Budget, Life Skills;
Maintaining Employment, Life Skills, Men’s Education;
Maintaining Employment;
Being an Effective Father, Life Skills;
Understanding Feelings;
Thoughts to Action, Life Skills;
Substance Use, Life Skills;
Changing Habits and Life Skills;
Problem Solving;
Being an Effective Father;
Maintaining employment;
Anger management;
Managing stress;
Problem Solving;
It’s a Gamble, Life Skills;
Recognizing Healthy Relationships and Supportive Relationships.

At the conclusion of submissions of counsel regarding sentence, Mr. McGowan made a lengthy statement to the court, which he had previously prepared. The court noted carefully everything he said and will provide a summary of that statement at this point.

He stated as follows:

He stated that he apologized to those impacted by his actions, the police officers in the chases where he avoided attempts to be captured and whose safety was jeopardized due to “my erratic and dangerous driving.” To the public at large, who also had their safety compromised during these incidents, he is sorry. To the jurist who gave him supplementary release with conditions, including who prohibited him from driving, to which he carelessly disobeyed, he apologized. And lastly, to his family, including his father, his sister, and his three-year-old daughter, who to this point has grown up without him in her life, he asked for their forgiveness.

He acknowledged his record, and with respect to his most serious driving offence, referred to it in a removed type of way, calling it “a terrible collision in 2010, with me behind the wheel, took the life of my best friend and injured four others.”

As indicated earlier - and I’m interrupting his statement at this point - he was convicted of dangerous driving cause death and bodily harm for the various victims and impaired cause death and bodily harm. Those are all criminal charges; it was not a negligent collision.

Continuing with his comments:

He called it a collision, rather than referring to it as the type of criminal driving offences which he committed. He did, however, refer to his guilt and remorse, and also his trauma. He stated that he takes full responsibility for his actions. He stated that he has the sincere intention to never again disobey any driving prohibitions. He referred to his past convictions, his mistakes, and poor decisions. He made reference to the lack of a suitable mother figure in his life.

That is a factor which this court acknowledges and no doubt has played an important role in his life.

He has had a supportive father, however. He referred to his having made an effort to become a dad to his three-year-old daughter. He stated that he recognized that he must change. He referred to the completion of his programs while in custody and his better understanding of coping mechanisms. He worked in the kitchen in the jail for two years. He has improved himself in terms of his reading and writing. He has taken a program related to construction work. He acknowledged the need for trauma and grief counseling and substance abuse programs. He stated that he is truly remorseful for his actions. He is thankful that no serious injuries or deaths occurred throughout the chases and pursuits. He is indebted to his family, and Brittany, who is raising his daughter with her husband Ricky. He stated that he wants to start the process of becoming a full-time dad to his daughter.

LEGAL PARAMETERS

There is a range of penalty for each of the various offences in the various Informations, which are set out above under the reasons dealing with the facts for each offence.

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

Crown Position:

The Crown has done a considerable amount of work breaking down its position on the various charges, putting forward a series of sentencing positions, each to be considered consecutively to each other for each Information, and then reduced from the initial position to a reduced position given the principle of totality. The Crown has prepared and filed with the court a Crown Compendium on Sentencing, outlining written submissions, together with case law. The Crown positions have been put before the court in the form of a chart, which has been filed in evidence.

The court asked the defence to provide a sentencing position. The defence resisted that request initially, but nonetheless provided a breakdown with a sentencing position for the various charges. Defence counsel also referred to this in a chart, which has been placed before the court.

In summary, as far as the defence position, the defence takes the position that the total sentence for all the offences should be approximately 14 years, reduced to a sentence of 10 years based on totality, to give Mr. McGowan some hope, to provide time with his daughter as a teenager. The defence also requests that there be presentence custody credit deducted from the 10 years.

The Crown, in its position, initially indicated that it would have been requesting a sentence potentially in the range well in excess of this, but after reducing its position based on totality, took the position that there should be a sentence totaling 18 years. That would be to be considered as a starting point and then deducting from that enhanced presentence custody credit.

MITIGATING AND AGGRAVATING CIRCUMSTANCES:

Mitigating:

In this case, perhaps the strongest mitigating factor is the entry of guilty pleas to the various charges. It has saved the Crown the need to prove the charges and saved the court system the use of resources that would have been required to prove guilt. The guilty pleas were contemplated and entered prior to scheduling the charges for trial.

The court also considers Mr. McGowan’s statement of remorse made in court following submissions of counsel.

Although Mr. McGowan has taken various counseling courses while in custody, and that is deserving of positive comment, the value of that as a mitigating factor is tempered somewhat given his past history. As set out above, he generally does rehabilitation well while he is serving time or in custody awaiting sentence, but does not follow up with rehabilitation once released from custody. For example, as indicated earlier, he had an opportunity to see a psychologist while in the community and simply never did so, and yet, spoke about the fact that he should have been given a chance to be rehabilitated. This speaks volumes to his past genuine willingness, or lack thereof, to follow through on rehabilitation after release from jail. Past behaviour is often a good predictor of future behaviour for Mr. McGowan.

While one might say that he has the prosocial benefit of a supportive sister and father and family friend, he had all of that previously, and he has still continued to commit more and more offences. This would seem to suggest that, unfortunately, that support is not likely to generate a change in the choices he makes, the behaviour he chooses to engage in, consuming drugs and committing more and more offences while he is in the community.

Aggravating:

The court notes his prior criminal record, which is not an aggravating factor but is one that bears upon the analysis for the need for specific deterrence and rehabilitation prospects. In this case the past criminal offences which he has committed, together with the repetitive and continuous nature of his subsequent criminal conduct, indicates that specific deterrence is a primary sentencing principle. Rehabilitation, as noted below, is of lesser consideration to this court given the numerous opportunities he has been given to have rehabilitation and either not continued with or not followed through with in terms of the psychologist.

In relation to numerous of the charges, he was on release for similar offences while committing subsequent offences.

There were numerous police officers and, as well, firefighters in harm’s way as Mr. McGowan drove by or close to them. He drove at high speed. He drove on the wrong side of the road, through red lights, on schoolyards, through areas where one would expect there would have been other vehicles and/or users of the road outside vehicles. There were numerous vehicles that were damaged by the criminal conduct of Mr. McGowan, none of which were the subject of any restitution made by him.

As the court will note below, the court also considers as an aggravating circumstance Mr. McGowan putting police officers who were in the lawful execution of their duties in pursuing him and whose lives and safety were put at risk by Mr. McGowan as a very aggravating circumstance, as indicated below.

I am going to take a recess now to give everyone an opportunity for a personal break for 10 minutes.

Now, Officer, does Mr. McGowan have access to a washroom facility up here or -

COURT OFFICER: Yes, Your Honour.

THE COURT: He does? Okay. So, I’m going to take a 10 minute break and then I’ll continue.

Everyone can be excused; I’m going to stay here.

... RECORDING EQUIPMENT TURNED OFF

THE COURT: ...was the driving prohibition orders, and those are very detailed and very technical. I don’t know what the position - for example, the Crown, I think, is requesting them; I don’t know on which charges or what length of time. If you want to just spend a bit more time on that later at the end, I’ll be asking for comments on that, and Mr. O’Brien, if you have some as well, but perhaps the Crown can share with you what her position is because they’re very technical.

Anyway, okay, we’ll take the 10 minutes now.

R E C E S S

U P O N R E S U M I N G:

SENTENCING PRINCIPLES:

Analysis:

The court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64. In that judgment, the court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered averages, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straightjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender’s degree of responsibility, and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work. The court specifically considers para. 73 of that judgment, although the court’s not going to read it out today. See also R. v. Frickey, 2017 ONCA 1024, paras. 4 and 5.

In 2010, the Supreme Court of Canada noted in Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at para. 43, that “no one sentencing objective trumps the others, and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."

Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34, and in particular, para. 4 of that decision.

In 2021, the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] SCJ No. 46, in the majority judgment at para. 10, indicated that proportionality is the organizing principle for the court in imposing a fair, fit, and principled sentence. Proportionality is the fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender and the unique circumstances of each case. Parity and individualization are important, yet secondary, principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in para. 12.

As often stated by appellate courts considering sentence appeals, every case has its unique features relating to the offender or the offence. The court has reviewed all of the cases referred to by the defence and the Crown. The absence of mention by this court does not mean that this court has not considered a particular case. It simply reflects the court’s view that the circumstances in those cases are not of assistance in considering the appropriate sentence in this case.

The principle of proportionality is also now codified in the Criminal Code, which states that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (See s. 718.1 of the Code.)

Further, the court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence (both generally and specifically for the offender), separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. (See s. 718.) The court bears in mind any applicable sentencing principles set out in s. 718.2, as well as the principles of parity, totality, and judicial restraint in considering a sentence of deprivation of liberty or imprisonment, as set out in s. 718.2(b) through (e). The emphasis of the court in considering those various objectives depends on the nature of the offence and the circumstances of the offender.

As referred to in the beginning of the reasons, the court is most challenged by the consideration of the principle of totality and judicial restraint in this case, together with specific deterrence. There is no doubt that Mr. McGowan will be given sentences which result in deprivation of liberty or imprisonment. There is also no doubt that given the facts of the offences, many of the offences relate to driving. Mr. McGowan has indicated that he would use drugs and then operate a vehicle, despite being aware of probable consequences. He seems to use his drug use as an excuse for making informed decisions. The court must consider that as an aggravating factor relating to the offences, particularly those for which he was not charged specifically with an offence related to the impaired operation of a vehicle. The court finds that based on his admission, most, if not all, of these offences were committed under the influence of drugs or alcohol, as he has admitted, while he was no doubt motivated to escape capture, investigation and charges related to driving while under the influence of those substances. That is particularly aggravating. Further, the primary objectives in a case such as this are denunciation, deterrence (both general and, most particularly for Mr. McGowan, specific deterrence) separation of him from society where necessary, promoting a sense of responsibility and acknowledgment of the harm done or potential harm that could have resulted from his criminal driving conduct. These are the most relevant factors for this court to consider in the case.

At this point, the principle of rehabilitation for Mr. McGowan is notable, and the court is seeing some positive signs in terms of the programs he has taken in jail and his conduct while at jail working in the kitchen, perhaps motivated by the sentencing hanging over his head to be imposed at this time, yet overshadowed, and of minimum consideration to this court given the other important principles. Some of his personal circumstances, in terms of what the court sees as his positive conduct while in jail and his motivation towards wanting to have a relationship with his daughter, are in the balance very much outweighed by the other sentencing considerations in the case.

At this point, the court considers the nature of the offences, together with the circumstances of the offender.

Driving offences:

As noted by the Court of Appeal for Ontario in

R. v. Simeunovich, 2023 ONCA 562, at para. 7:

“Over the years, Parliament has increased the maximum sentence for the offence of driving while disqualified: before 1999, the maximum sentence was 2 years; it was raised in 1999 to 5 years; and as a result of 2018 amendments, at the time of the appellant’s sentencing the maximum sentence was (and remains) 10 years. Section 320.19(5)(a).

On June 21, 2018, Parliament assented to an Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. In the preamble, it indicated in part:

Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year;

Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances;

Whereas it is important to deter persons from driving while impaired by alcohol or drugs;

Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving;

Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood;

Whereas it is important that federal and provincial laws work together to promote the safe operation of motor vehicles;

And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaired driving.

The court as well notes the high punishment for offences as of 2018, where the Crown proceeded by indictment for ss. 320.13, .16, .17 or .18 of 10 years in the penitentiary for each offence where the Crown proceeds by indictment.

The court notes s. 320.19(5) and (a) and (b) in terms of punishments.

This means that Parliament increased the penalties in 2018, as the prior maximum penalties for dangerous driving being 5 years by indictment and 6 months by summary conviction. The maximum penalties for fail to remain increased from the maximum of 5 years, and also similarly increased the maximum for flight from peace officer and drive while prohibited.

The amendment also stated that it would be a statutory aggravating circumstance under s. 320.22(g) if a party drove while prohibited, under a federal or provincial Act, from the operation of a conveyance. But the court notes, in terms of some of the charges that are before the court, Mr. McGowan was actually charged with drive while prohibited, so that doesn’t make it an aggravating circumstance; that’s a separate offence.

This legislation also provided the length of prohibition for a number of offences, including the .13, .14, .15, .16, and .18 offences. I am not going to repeat those provisions, but the court has considered those provisions as they relate to (4) and (5).

The increase in the penalties for this offence reflects Parliament’s direction, as generally commented upon by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, at paras. 99 and 100, that the offences are to be treated as more grave than they have in the past. Accordingly, this court should look at sentences imposed prior to 2018 through that filter, which was pursuant to a pre-2018 sentencing regime that provided lower maximum sentences and potentially lower punishments overall. This is consistent with R. v. Seguin, 2024 ONCA 355, at para. 14 and R. v. Fazzina, 2024 ONCJ 647, at para. 47.

In addition, the court considers the following. The paramount sentencing principles are deterrence and denunciation for these types of offences, but as it relates to Mr. McGowan, also specific deterrence. The Crown before the court submits that the principle of separation from society is also an important sentencing objective. The court has referred to his extensive criminal record.

As noted by the Court of Appeal for Ontario in R. v. Simeunovich, at paras. 20 and 21, the court must examine the case law and also Mr. McGowan’s record in light of the lower maximum sentences that were in place at the time of his prior convictions and sentences for serious driving offences. Society’s current understanding and awareness of the gravity of the driving offences before this court and the blameworthiness has increased. See R. v. Friesen at paras. 35, 108 and 110, Parranto at para. 86, and Simeunovich at para. 20.

As the court considers the criminal record of Mr. McGowan and the principle of specific deterrence and potentially rehabilitation, the court also considers R. v. M.V., 2023 ONCA 724.

As it relates to the jump principle, the court considers R. v. Green, 2021 ONCA 932, at paras.

11 and 12. In particular, in paragraph 12, the court stated:

“The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender.”

Accordingly, as it relates to that principle, the jump principle has little application where the severity of the crimes shows a dramatic increase or, as indicated below, where there are multiple convictions, with a lengthy criminal record, and previous sanctions have been ineffective in deterring the offender.

See also R. v. Simeunovich at para. 23. A more holistic view of the past and current conduct of Mr. McGowan must be considered.

Accordingly, this court finds that the jump principle has little or no application to the sentencing scenario before this court, where previous sentences have been ineffective in deterring Mr. McGowan in what has now become a lengthy criminal record.

The court considers the helpful analysis of case law dealing with the potential sentence range under consideration, as considered in R. v. Fazzina, 2024 ONCJ 647, at para. 49, including the separation of the pre-2018 sentencing amendment and post-2018 sentencing amendment time frames.

In Fazzina, the court found that the offender presented a risk to public safety. The court in this case would find that there is an even greater risk to public safety as it relates to Mr. McGowan, as he suffers from an antisocial personality disorder and a substance abuse disorder. He has clearly indicated that when he consumes drugs, and most recently cocaine, this causes him to commit further offences. Further to that, his past behaviour has shown a consistent repetitive behaviour of abusing one after the other, and other multiple driving prohibition orders, at the same time, over a lengthy period of time. While the court would like to think that hope springs eternal, as it relates to Mr. McGowan, there is really no basis to predict that he would do anything other than drive a vehicle when prohibited if he gets the chance to get in a vehicle and drive, and if he has consumed any drugs or alcohol prior to doing so. This essentially makes him a loaded weapon, as described in the Bernshaw case, whenever he is in the community. This is truly a sad situation with Mr. McGowan, as the court would like to find optimism and hope, and yet, there is simply no basis for finding that potential. He has had treatment opportunities numerous times in the past and not availed himself of that treatment in the community. He says he is motivated to be a good father to his daughter, and yet, he has been her father over the time he was on release for nine months and he committed subsequent offences.

As noted, the court considers R. v. Simeunovich, 2023 ONCA 562, particularly at para. 21 at this point.

None of the prior prohibition orders stopped Mr. McGowan from driving on the dates of the various offences before this court, and it would seem that this pattern is one which has repeated itself from prior driving offences set out in the record. As set out in para. 17 of Simeunovich, as it related to that type of a court order, prohibiting him from driving, Mr. McGowan seems similarly positioned as an offender who cannot be stopped by any driving prohibition.

Mr. McGowan has been intent on driving, particularly when he consumes cocaine. He has had little or no regard for the lives and safety of others who might be on the road, in a parking lot, in a schoolyard playing, or on any road or highway in the community. He has no regard for the lives or safety of police officers, whom the community expects to protect him and to protect the public, to take steps to apprehend him, who time and time again found themselves in the path of where Mr. McGowan drove to get away. Time after time they were put at risk of injury or worse, resulting from the actions of Mr. McGowan. His words of remorse, given his pattern of conduct over the course of these continuing offences before the court, ring hollow.

A driver like Mr. McGowan presents a risk to public safety. See R. v. Lavergne, 2018 ONCJ 901, at para. 86 and R. v. Simeunovich at para. 19.

The totality principle is engaged in this sentencing, given the multitude of offences over the multitude of dates in this case. See R. v. Simeunovich at paras. 26 to 30.

The most serious set of driving offences and penalties previously on his record was in 2012, where his driving conduct caused the death of his close friend and injuries to numerous other people in the collision, and he also had injuries himself. Nonetheless, that very serious penitentiary sentence did not deter Mr. McGowan from his numerous subsequent driving offences.

In terms of breach of court orders, Mr. McGowan has many convictions for disobeying court orders. In addition to driving while prohibited and driving while disqualified, he has had convictions of failure to comply with orders, as indicated, escaping, being unlawfully at large, and failing to appear in court.

The court noted above that he has also had his release suspended when he was in the community serving his federal sentence.

The Crown relies on R. v. Smith, 2012 ONSC 3089, and in particular, paras. 46 and 48, which the court is not going to quote, but the court has considered.

Offences committed while fleeing the police or against a police officer:

Further, in addition to s. 718.3(4)(b)(iii) in the Criminal Code, which suggests that in these circumstances the court should consider the imposition of consecutive sentences for offences committed while fleeing from a police officer, the court considers the case law.

In R. v. Forest, [1986] O.J. No. 330 (C.A.), the court noted that:

“Police officers, in the performance of their duties, are the representatives of the whole community, and an attack upon them is an attack upon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of special vulnerability and are entitled to such protection as the law can give."

In R. v. Sturge, [2001] O.J. No. 3923, a decision released September 21st of 2001, the Court of Appeal referred to the need for general deterrence and denunciation to be given paramount consideration in cases where police officers are required to put themselves at risk, as in this case, to make an arrest. The officers, in certain circumstances, to quote the Court of Appeal, “must be assured that those who physically resist arrest will be dealt with sternly by the courts.”

In that case, the court imposed a consecutive sentence.

In 2004, the Court of Appeal spoke to this issue again. This court quotes the comments of Justice Doherty in R. v. McArthur, 2004 8759 (ON CA), 2004 182 C.C.C. (3d) 230 (Ont. C.A.), where he stated at para. 49:

“As indicated above, the maintenance of a just, peaceful, and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful, and safe society. We rely on the police to put themselves in harm’s way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function." R. v. Forrest, (1986) 15 O.A.C. 104 at 107 (C.A.).

More recently, in 2021, the Court of Appeal for Ontario referred to McArthur and affirmed those principles. The court also considers R. v. Rajkovic, 2021 ONCA 11, another judgment of the Court of Appeal, most particularly at para. 15.

While the court is well aware of the fact that there is no evidence that Mr. McGowan intended to kill any police officers, his flagrant and reckless conduct directed towards the police officers who were seeking to apprehend him, when he sought to flee from them, where he put their safety at risk, gives rise to a consideration of these principles. He indicated his prior ingestion of cocaine in relation to many of the offences, and ostensibly he sought to evade the police to avoid being charged, found guilty, or sentenced for driving while impaired.

An offender’s background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who had been subjected to systemic prejudices or racism, or was exposed to physical, sexual or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one’s background will be case specific. A single factor will rarely be determinative.

In this case, while Mr. McGowan had an unfortunate background as it related to his mom, which is outlined clearly in the material before the court and above in the reasons, it is clear that his father was very supportive and provided a stable and positive environment for his son while growing up. While the court does not have information to sentence him as having an Indigenous background, the court does take into account the unfortunate circumstances of his mother having a substance dependency, leaving him and his sister when they were young children, and later passing away. To use the phrase by Mr. McGowan, he did not have a nurturing relationship with his mother that all children should have when they are growing up. The court agrees.

The court considers any possible collateral consequences that might arise from a sentence of incarceration, as it bears upon close family relationships and the sentence to be imposed by this court. The court bears in mind that a lengthy sentence of incarceration will keep Mr. McGowan from being able to see his daughter as she grows up to a teenager and perhaps beyond. That is family separation. The court considers the principles set out by the Court of Appeal for Ontario in R. v. D.B., 2025 ONCA 577, most particularly at paras. 19 to 24 and 37 to 38.

While Mr. McGowan states that he wishes to have a relationship with his daughter, the court cannot help but question the sincerity of that statement given that he has not made choices in the past that would have provided that opportunity for a quality relationship for his daughter when she was under a year old. In addition to the past history of not having a close relationship with his daughter at an early age, there is no indication that he has been a provider to her in terms of financial or other types of support, as it might relate to those circumstances as discussed in R. v. D.B.

The court is not going to repeat all of the facts set out above relating to the offender and his individual circumstances. The court considers all of these circumstances, as outlined above, as it considers an appropriate sentence for him as an offender and for the offences before this court.

Types of sentence - Consecutive or concurrent:

The court has discretion to impose sentences for the various offences on a concurrent or consecutive basis. A guiding principle for this court to consider is whether the acts constituting the offences were part of a series of acts within a single endeavor. See s.

718.3(4), which states in the relevant portion:

“The court that sentences an accused shall consider directing (i) the offences do not arise out of the same event or series of events."

The court also considers (ii) and (iii).

In this case, as a general rule, where counts are for offences set out in a particular Information, they have generally arisen out of the same event or series of events. In that respect, it would generally be appropriate that for sentences imposed on that Information, they be consecutive to sentences imposed on other Informations. The other Informations relate to allegations that do not arise out of the same event or series of events.

In some ways, the Criminal Code principles could lead to a granular approach to sentencing that does not properly capture the task at hand for imposing sentence. In that respect, the court has considered R. v. Jewell, 1993 11 CCC (3d) 270 (Ont. C.A.).

The application of the principle of totality to a series of offences has been considered by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, and in particular, at paragraph 157, where the court considered the different approaches taken by different provincial courts of appeal in considering the principle. The court quoted from R. v. Ahmed, 2017 ONCA 76, for Ontario, referring to an approach for determining an overall fit sentence, then imposing individual sentences adding up to the total. The court considers and applies that.

Where consecutive sentences are imposed for multiple offences, the court must ensure that the cumulative sentence not exceed the overall culpability of the offender. See R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 SCR 500. The aggregate sentence must be just and appropriate. The court considers from Clayton Ruby, Sentencing, at pp. 44 to 45:

“A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects.”

The court also referred to a reluctance by courts in Canada to impose sentences beyond 20 years, upholding them on only rare occasions. While the Court of Appeal for Ontario in R. v. J.A.C., (1995) 1995 635 (ON CA), 86 OAC 135, declined to adopt the 20-year ceiling rule that is in place in the British Columbia Court of Appeal, nonetheless found that the 30-year sentence was excessive and reduced the sentence to 21 years.

In 2023, the Supreme Court of Canada considered the totality principle in R. v. Bertrand Marchand, 2023 SCC 26, and most particularly, paras. 91 and 99 are being considered by the court. In those paragraphs the court indicated in part:

“The sentencing judge first determined the just and appropriate sentence for each offence individually. Next, she considered whether the sentences ought to be consecutive or concurrent. Only after doing this did she consider the principle of totality in s. 718.2(a), which ensures that ‘the cumulative sentence rendered does not exceed the overall culpability of the offender.’”

Then in paragraph 99:

“The effect of the totality principle is to require a judge to ensure that the series of sentences are, in aggregate, ‘just and appropriate’. This involves taking ‘one last look at the combined sentence’ to assess whether it is ‘unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.’ If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences.”

Where the court imposes consecutive sentences, the court should be mindful of this principle of totality and apply it to the sentence.

The Crown takes the position that there should be consecutive sentences imposed for the various offences in each Information, such that the sentence on each Information would give rise to a jail sentence, where the sentences on each count would either be concurrent or consecutive to each other, then reduced on the basis of totality for that Information, then to be consecutive to sentences imposed on each of the other Informations, of which the various charges of each Information would either be concurrent or consecutive to each other, each of which would also be reduced on the basis of totality. The Crown has reduced its sentence position for each Information on the basis of totality in a very real and significant way, as indicated in the chart which is before the court.

The defence applies the totality principle at the end of its calculation, starting with a 14-year term of incarceration and then reducing it to 10 years based on totality, to give Mr. McGowan a sense of hope for the future, less presentence custody credit.

The court finds that each grouping of the charges, by date of offence, should be sentences which are consecutive to each other. In other words, the sentence imposed on each Information should be consecutive to the sentences imposed in relation to the other Informations. These are not continuing offences; they are separate and distinct and require separate treatment. A global sentence would not be an appropriate way to address the circumstances of the offender relative to the various offences. Nonetheless, as it relates to each date on which various offences were committed, they are related in terms of time, and the court finds that it considers the sentence and the way in which sentence is being imposed in light of that similarity of time frame.

The consideration of sentence in this case has been an iterative process back and forth for this court in reducing sentences based on totality to come up with a just total. As noted above, the court will consider what sentence would have been in place without the consideration of presentence custody, which will later reduce the sentences as noted below.

The court will consider the range of sentences, and sentencing positions, as it relates to the offences in each of the Informations, proceeding with each in turn. The court would note that for the sentences, it would be reduced by the consideration of presentence custody credit, which will be enhanced and considered after each of these individual Informations.

Following the Supreme Court of Canada’s guiding comments in R. v. Bertrand Marchand, the court indicates that it has taken a great deal of time in considering the individual sentences, considering all of the relevant factors, back and forth, and then taking one last look at the combined sentence to assess whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. The court has adjusted the sentences accordingly. It is only after going through that procedure of iteration that the court has concluded its decisions as to the appropriate components of sentence for the various offences before this court.

I am going to start and go Information by Information.

Information 9661:

This is the first series of offences, committed on April 6th, 2021, by Mr. McGowan over the period of two years. At that time, he was subject to various prohibition orders, which were set out above. As it relates to the offences of dangerous driving, flight from police, and drive while prohibited, the Crown proceeded summarily on each of the charges. This would result in a maximum penalty for each of the three charges of 2 years less a day. The Crown takes the position that the appropriate range of sentence for those charges is a global sentence of 4 to 5 years in total for those three offences, although the Crown reduces its sentencing submission in light of totality to a sentence position of 21 months incarceration. It is to be noted that at the time he committed these offences, he had three prior drive while prohibited convictions from 2020, one drive while disqualified in 2019, five drive while disqualified in 2018. He also had prior convictions for dangerous driving and impaired driving, together with flight while pursued by peace officer in 2020, impaired driving cause death, impaired driving cause bodily harm times four, dangerous driving cause death, dangerous driving cause bodily harm, fail to remain where death, fail to remain where bodily harm, in 2012, together with numerous other types of criminal convictions on his record showing a wide array of criminal conduct.

Defence counsel has submitted that the appropriate sentence for this is 24 months incarceration, to be concurrent on the various counts. This is, initially, in excess of the Crown’s position, although the defence does not seek to reduce individual components for totality, rather leaving totality to an endpoint calculation. This makes it somewhat challenging for the court to consider, given the vast number of Informations and charges.

Overall, though, this is the first set of charges. This was an outrageous pattern of driving while on five driving prohibition orders, driving at a police officer, who was able to avoid being hit by running behind his vehicle to shield himself, then the accused fleeing at a high rate of speed, in medium traffic, down the wrong way on the road, running red lights, et cetera. The driving was just under 10 kilometres. And this was a very busy area of the perimeter of the Pearson International Airport on a Tuesday morning, after 9:00 a.m., a period of time where one would expect numerous users on the road. Generally speaking, the court would not be inclined to reduce this sentence to any great extent for totality since it is the first set of charges. Accordingly, the court would impose a sentence of 6 months on drive while disqualified, 22 months on dangerous driving consecutive, and 4 months consecutive on flight from police. However, applying the principle of totality, the court reduces those sentences to a total of 27 months incarceration, based on the imposition of 20 months incarceration for dangerous driving, 4 months consecutive for drive while disqualified, and 3 months consecutive for flight from police. That gives rise to that Information - again prior to the future adjustments I am going to have - 27 months.

Information 1618:

As it relates to this series of offences, committed just eight months after the first set of serious driving charges and while he was on release, he violated four driving prohibition orders. He also violated bail terms. He intentionally backed into a police vehicle that had blocked his vehicle. He then continued to drive, and the officers attempted unsuccessfully to block him in again. He continued to drive and came close to hitting firefighters who were just standing by their vehicle. After his vehicle was stopped, he fled on foot. It was also clear that he had driven his vehicle to this location on additional dates prior this offence, again contrary to his driving prohibition orders.

The Crown takes the position that a global sentence of 4 to 5 years would be appropriate for these offences but reduces that submission to one of 21 months to account for the principle of totality. In terms of the breakdown, the Crown submits, after consideration of totality, that the sentences should be 18 months for dangerous driving, 18 months concurrent for flight from police, 18 months concurrent for drive while prohibited, and three months consecutive for breach of undertaking.

For these offences, the defence takes the position that a sentence of 21 months incarceration would be appropriate; although it appears that the defence subsequently reduced that somewhat for totality.

After considering all the appropriate factors and positions and applying totality, the court finds that the appropriate sentence for this Information is a total of 30 months consecutive to Information 1618. This is the result of the imposition of dangerous driving of 23 months jail, consecutive to Information 9661, flight from police 3 months consecutive, drive while prohibited 3 months consecutive, and breach of undertaking 1 month consecutive. The court has applied a greater reduction for totality in this second set of charges in all the circumstances. The court would have found, before totality, that the sentences of 24 months less a day on the dangerous driving, 3 months consecutive, plus a day on flight from police, 7 months consecutive on drive while prohibited and 3 months consecutive on breach of undertaking would have been appropriate. So, again, on that Information, a total of 30 months.

Information 2576:

This charge related to drive while prohibited on Christmas Eve, 2021. He was at the time on four driving prohibition orders. At the time he drove, he was also subject to a bail order with a term not to be in the front seat of any motor vehicle. He might not have been on that term about the front seat, but in any event, he was on four driving prohibition orders. All those facts, as far as the driving prohibition orders, are going to be considered for the breach of driving prohibition order.

On this series of charges, the Crown submitted that the appropriate sentence for drive while prohibited would be 2 years less a day, which it reduced for totality to 1 year consecutive.

The defence submits that the appropriate sentence is 5 months consecutive, to be reduced for totality.

The court finds that it would have imposed 8 months consecutive before consideration of totality. However, the court instead reduces it to 6 months in jail, consecutive, after considering totality. So, 6 months on that one.

Information 1564:

This also related to egregious facts related to driving offences. On February 17, 2022, just under two months after the most recent drive while prohibited, Mr. McGowan was parked in a fire route and approached by the police. The officer called for backup. He told Mr. McGowan to stop, and Mr. McGowan proceeded to strike the officer’s vehicle and then drove and fled along Lawrence Avenue East, with the officer in pursuit, with emergency equipment activated. He then proceeded to drive on the wrong side of the road on Lawrence. It was just after midnight. He continued to drive in the lane for oncoming traffic, through the busy intersection of Kingston Road, and then returned to the proper lane and made no attempt to stop at the other major intersection of Morningside Drive. The officer discontinued the pursuit due to public safety concerns. The vehicle was later observed driving at a high rate of speed, after which it drove eastbound on the 401 highway. Mr. McGowan pled and was found guilty of dangerous driving, flight from police, fail to stop after collision, and drive while prohibited. He was at the time still subject to a bail order not to occupy the driver’s seat of a motor vehicle.

The Crown submitted that on this Information the appropriate sentence is 2 years less a day on each count, for a global sentence of 5 to 6 years. Reducing its position based on totality, the Crown submitted that the components of sentence should be 18 months for dangerous driving, 18 months concurrent for flight from police, 1 year consecutive for fail to stop, and

1 year consecutive for drive while prohibited, for the ultimate submission by the Crown to be the appropriate sentence of 3 and a half years.

The defence submitted that on this Information, the defence position is that the appropriate sentence would be 18 months incarceration, to be reduced for totality.

The court finds that the driving in this case is bad, also aggravated by the aspect of flight and fail to stop and drive while prohibited, all the while breaching his bail order to not occupy the driver’s seat of a vehicle. Accordingly, the court finds, after consideration of totality, that the total sentence on this Information will be 35 months jail consecutive to the sentences imposed on the other Informations. The court breaks this down as 22 months on the dangerous driving consecutive, 5 months consecutive on the flight from police, 3 months consecutive on fail to stop after collision, and 5 months consecutive for the drive while prohibited. Prior to applying the principle of totality, the court would have considered appropriate 24 months less a day on the dangerous driving, 5 months plus a day consecutive on the flight from police, 3 months consecutive on the fail to stop after collision, and 9 months consecutive for drive while prohibited. So, 35 months on that Information.

Information 3799:

This information includes a fail to appear for a separate date of September 23rd, 2022, and another series of offences, including fail to comply with release regarding his house arrest, flight from police, and drive while prohibited on April 20th, 2023. At the time he was also subject to a term on bail for house arrest. When officers saw him at a residence, he fled upstairs and got into a vehicle parked in the driveway. Police officers tried to intercept him, in the vehicle he drove, with their vehicle. It was a Thursday, just after 10:40 in the morning. At that time Mr. McGowan stopped his vehicle and then drove his vehicle into the schoolyard at a middle school. Officers pursued Mr. McGowan in their vehicle as he drove through the schoolyard.

It is extremely fortunate that students were not outside for a recess, outdoor physical education, or for any other reason. The police pursued Mr. McGowan down numerous other streets but had to discontinue the pursuit for public safety. There is in-car camera video of his driving in evidence.

The Crown has submitted that the appropriate sentences should be as follows, for charges which were all proceeded by indictment: Firstly, the Crown submits that there should be a global sentence of 6 to 8 years. However, the Crown reduces its submission based on totality as follows: fail to appear, 3 months; breach of release, 3 months consecutive; flight from police, 3 and a half years; and drive while prohibited, 1 year.

On these charges, the defence submitted that the appropriate total sentence should be 24 months, to be reduced for totality.

The court imposes a total sentence of 47 months incarceration consecutive to sentences on the other Informations for the offences in this Information, broken down as follows, taking into account all the principles, including totality: fail to appear, 2 months incarceration; breach of bail, 3 months consecutive; flight from police, bearing in mind that the facts support dangerous driving, of 36 months consecutive; and drive while prohibited, 6 months consecutive. Prior to the consideration of totality, the court would have found appropriate sentences of 3 months on the fail to appear, 6 months consecutive on the breach of bail, 3 and a half years consecutive on the flight from police, which included dangerous driving in terms of the type of driving, and 10 months consecutive for drive while prohibited.

Last Information, 3778:

This was the last series of charges, at the conclusion of which Mr. McGowan was finally and thankfully arrested and held in custody. They were on April 26th, 2023, just days after the preceding driving charges. Mr. McGowan was asleep in the vehicle behind the wheel. He was impaired by cocaine or alcohol or both. It appeared as though his vehicle was previously in a collision. He drove his vehicle into another vehicle in the parking lot. A witness called police. When police officers arrived on scene, they noted his engine was running and it was in reverse and not moving. They asked him to exit the vehicle. He responded by putting his vehicle in drive and accelerating away from the officer. Mr. McGowan then collided with the officer’s police car as he went around his vehicle. He then turned onto Rexdale Boulevard and continued to cross active lanes of eastbound traffic, jumping a median into oncoming traffic. He then collided with an SUV traveling westbound.

Officers tried to block Mr. McGowan, and he then collided with the police vehicle that was trying to stop him. A crack pipe and scale were located inside Mr. McGowan’s vehicle. Two civilian vehicles and three police vehicles were damaged in the collisions. Photographs of the damaged vehicles were filed in evidence. At the time, he was subject to bail order conditions to abide by house arrest and to not be in the front seat of a motor vehicle when he breached them at the time.

The Crown submits that the appropriate global sentence for these charges should be 6 to 8 years but reduces its submission based on totality to one of 5 years. The Crown submits that the sentences should be broken down as follows: fail to comply with release, 3 months; for the charge of fail to stop, 3 and a half years consecutive; for drive while prohibited, 15 months consecutive; for dangerous driving and flight from police, together with impaired operation, 3.5 years concurrent, to result in a total of 5 years.

The defence submission is that the sentence for these offences should be 72 months consecutive to the other terms on the other Informations, to be reduced for totality. It would have been a sentence of 6 years.

The court finds the circumstances of the charges of dangerous driving, flight from police, fail to stop for police to be particularly aggravating when one also considers the clear proof in this instance of impaired ability and the breach of bail orders. The court imposes a total sentence for this Information of 62 months consecutive to the other Informations. On the dangerous driving, the court finds that a 42-month jail term is appropriate, consecutive to the other Informations. This time there would be a concurrent sentence of 42 months on the impaired operation. On the charge of flight from police, the court imposes a sentence of 8 months consecutive. On the drive while prohibited, a sentence of 6 months consecutive. On the fail to stop for collision, 2 months consecutive, and breach of release, 4 months consecutive. The sentence would have been, before application of totality, 48 months on the dangerous driving and a concurrent 48 months for the impaired driving, 10 months consecutive for flight from police, 12 months consecutive for drive while prohibited, 4 months consecutive on fail to stop collision, and 6 months consecutive for breach of release.

The total of the sentence the court is working on with the various Informations prior to presentence custody credit is 207 months of incarceration. That is 17 years and 3 months of incarceration before the court considers presentence custody credit.

Mr. McGowan has been in custody since April 26, 2023. To this point, February 4th of 2026, this is a total of 1,015 days of real days of presentence custody. On an enhanced Summers credit of 1 and a half days credit for each day, this would result in enhanced presentence custody credit of 1,523 days.

While Mr. McGowan has been in presentence custody for a significant period of time, the court notes the position of the defence that it essentially is not going to request credit beyond the 1.5 Summers credit, in light of the fact that for the majority of time in custody, Mr. McGowan has had a position working in the kitchen for the jail. Accordingly, although the defence did file some records relating to lockdowns, the defence did not seek additional credit in that regard.

Nonetheless, the court takes into account that he did work in the kitchen for 2 years, and accordingly, he was not subject to difficult pre- trial conditions often relied upon for enhanced presentence custody credit beyond Summers credit for that period of time. Often, the additional credit is to reflect that due to the conditions, in addition to restrictions moving around, having showers, making phone calls, et cetera, inmates and detainees are often not able to do any counseling or programming. This does not seem to have been much of a restriction for Mr. McGowan because, as noted above, he has been able to do a considerable number of programs and get certificates. Nonetheless, the court is of the view that there should be some reduction in the sentence to reflect lockdown records that were filed previous to the oral submission on that point related to what the court understands to be other portions in time. The court was advised, from those records, that he was subject to a total of 30 days of partial, full or tier days of lockdown, and no days of triple bunking. Accordingly, the court is going to apply a further credit of 60 days to that 30 days of enhanced presentence custody credit to reflect the difficult conditions which the court has been advised of relating to Mr. McGowan.

This 60 days enhanced presentence custody, added to the calculation of the Summers credit of 1,523 days, results in a total enhanced presentence custody credit of 1,583 days, which is approximately 4 years and 123 days. In terms of the mechanics of the breakdown of sentence, the court will deduct this enhanced presentence custody credit from the sentence on the last series of offences in Information 3778, which, as indicated earlier, resulted in a sentence of 62 months consecutive. 62 months is equivalent to 1,860 days. That sentence will be reduced by 1,583 days enhanced presentence custody credit, which is 4 years and 123 days. This would result in a remnant sentence which the court is going to indicate in just a moment. The court needs to apply them to the individual counts and does so as follows: on flight from police there will be 8 months enhanced presentence custody credit; following that there will be - to make it a legal sentence - 1 day jail concurrent; on the drive while prohibited there will be 6 months enhanced presentence custody credit; on the fail to stop, 2 months enhanced presentence custody credit; on the breach of release, 4 months enhanced presentence custody credit. That gives rise to this point: the use of 20 months of the enhanced presentence custody credit.

The original enhanced presentence custody credit of 1,583 days is equivalent to 52 months and 23 days. The court has just allocated 20 months of that to the four offences the court just indicated. That leaves a balance to be allocated and credited of that enhanced presentence custody credit of 32 months and 23 days. The court applies that on the sentence for dangerous of 42 months. So, that 42 months will have subtracted from it 32 months and 23 days, which will result in a sentence of 9 months and 7 days jail. That is the remaining sentence on 3778.

There will be ancillary orders as well that will be imposed in relation to this sentence.

First of all, there are going to be s. 110 weapons prohibition orders. Given the nature of the driving, the court is going to impose that for 10 years on Informations 9661, 1618, 1564, and 3778.

There will also be DNA samples taken for the secondary designated offences on all of the counts of dangerous driving, on all of the counts of drive while prohibited, on all of the counts for flight from police, on all of the counts of fail to stop, on all of the counts of fail to comply, and impaired driving.

The court is going to waive the victim fine surcharge because Mr. McGowan has been in custody for a lengthy period of time.

The court is going to seek the submissions of counsel, as indicated earlier, because it needs to be done at this stage, given the provisions of the Criminal Code with respect to driving prohibition orders and the sentences that have been imposed and the length of those driving prohibition orders. I don’t know if counsel are able to make those submissions now or if they need a moment.

A. GILMER: I can outline the Crown’s position and I think there are two options, mainly two options for Your Honour. For the count of impaired operation, given the history, there’s no maximum to that prohibition order, and the Crown would be seeking a lifetime prohibition order on that count. That’s count 8 on Information 3778.

And then I would leave it to Your Honour whether to impose other prohibitions. They are - they do have maximums, the other ones. So, on the other driving offences where the Crown proceeded by indictment, the maximum sentence of custody is 10 years, and therefore the maximum length of the prohibition order is 10 years, plus any period of custody.

THE COURT: And that’s where - when I look at that -

A. GILMER: Yeah.

THE COURT: - it gets confusing because it’s not clear on the wording of that provision of the Criminal Code if it means the period in custody for that Information or the overall period of custody for the whole charges and what length the court is to consider.

A. GILMER: Yeah. Given all of the circumstances here, it might just make sense to do just the one lifetime prohibition order stemming from the impaired operation because, otherwise, there would be many, many orders, number one, and number two, Your Honour could - for instance, there’s also the operation of 320.24(9), which lets Your Honour make it consecutive to any previous prohibition orders, which would include the previous lifetime prohibition order. So, it seems like we’re getting redundant beyond the one lifetime prohibition order. So, I -

THE COURT: Just in terms –

A. GILMER: Yeah.

THE COURT: - of an appeal, though, I guess the only issue is that if an appellate court were inclined to set aside a prohibition order on one count.

A. GILMER: Yeah, that’s why I was toying back and forth. I don’t - yeah, I don’t think that’s likely here, but -

THE COURT: I guess the only other thing would be Information 3799.

A. GILMER: Yeah, the other indictable Information.

THE COURT: Right. I’ll hear from you in a second, Mr. O’Brien.

R. O’BRIEN: I don’t know what I have to add, Your Honour.

THE COURT: Well, when they did this, I understand the intent, but I don’t think the drafters of the Criminal Code were thinking about this kind of a sentence with so many counts at the same time and with a record like this.

A. GILMER: Absolutely.

THE COURT: But 3799, what’s the Crown’s submission as to an appropriate length of driving prohibition? The main offence, of course, is the flight from police.

A. GILMER: So, it would be 10 years in addition to the period of incarceration.

THE COURT: 47 months.

A. GILMER: Yeah.

THE COURT: My clerk is going to be driving me nuts because they want everything in days.

All right. Okay, Mr. O’Brien, what’s your position on anything like this?

R. O’BRIEN: I’m content - I’m content with the suggestions my friend’s making as far as the prohibitions go. I mean, it is going to be redundant throughout each charge, and the maximum would seem to be appropriate for each particular charge -

THE COURT: Right, okay.

R. O’BRIEN: - at the end of the day, so - THE COURT: Well, I’ll just indicate that the court would have applied and imposed driving prohibition orders on each of these Informations for each of the counts that were eligible for driving prohibition orders, given the circumstances of the offences and the offender, but it does seem to this court to be somewhat redundant. So, should an appeal court be looking at this in the future, that is certainly the intention the court would have imposed, but I’m not going to do it.

I am going to, on the impaired count, impose a lifetime driving prohibition, and on the 3779 flight from police, I’m going to impose a driving prohibition of 10 years, well, plus 47 months. So, hold on a second. 13 years and 11 months on that flight from police. So, we’ll just do two driving prohibition orders.

And last, but not least, and this is also important, but I’m going to do it, I’m going to make recommendations on the committal warrant to the correctional authorities.

Number 1, Mr. McGowan should abstain from substance and alcohol use.

I am getting a lot of these from the material that’s before the court from Dr. Choptiany and other sources.

Mr. McGowan should abstain from substance and alcohol use. While his substance use disorder appears to be in remission in a controlled environment, substance use is risk enhancing and increases the likelihood of Mr. McGowan engaging in impulsive behaviours that could place himself and others at risk of physical and psychological harm.

Mr. McGowan would likely benefit from intense supervision and close monitoring upon his eventual release to the community, including the use of urine drug screens to ensure ongoing abstinence or to facilitate rapid intervention and support should he resume substance or alcohol use.

The court is going to recommend that the correctional authorities provide Mr. McGowan with counseling and treatment for substance and alcohol abuse.

Also, with respect to grief counseling - there are other recommendations in Dr. Choptiany’s report, I’m not going to quote all of them, but I’m going to add this one. It’s recommended that Mr. McGowan get psychological treatment targeting maladaptive antisocial personality traits, particularly impulsivity, which appears to be exacerbated by the use of substances and alcohol. He may benefit from participation in an evidence- based psychotherapy such as Dialectical Behavioral Therapy or Cognitive Behaviour Therapy to target mood, impulsivity, social skills, and to build coping skills to be used when under stress, which could increase risk of relapse.

Those are the recommendations the court’s going to make to the correctional authorities.

The court is also going to provide them with the presentence report, the Form 6, Dr. Choptiany’s report, and other materials that have been filed as exhibits.

In due course, the court will also provide the Reasons for Sentence, but a lot of what corrections is going to want are those exhibits.

All right. Thank you very much to counsel, I know this was a lot of work.

I wish you luck, Mr. McGowan, I truly do. I hope that things do turn around for you and your daughter.

And I’m not sure if that’s your sister there, but - UNIDENTIFIED SPEAKER: [Indiscernible] with John Howard Society.

THE COURT: You’re with John Howard Society, okay. Well, I think they were here on the earlier date, I noted that.

Is the Crown withdrawing the other counts that haven’t been withdrawn that are before the court on the six Informations?

A. GILMER: Yes. Thank you.

THE COURT: Okay.

R. O’BRIEN: Thank you.

THE COURT: Do you want to see your client in the other room there?

R. O’BRIEN: No, I’ll see him downstairs.

THE COURT: Okay. All right. Thank you. You’re free to go.

Certification

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Susan Murphy, certify that this document is a true and accurate transcript of the recording of R. v. Todd McGowan, in the Ontario Court of Justice, held at 10 Armoury Street, Toronto, Ontario, taken from recording 4810_1206_20260204_133805 6_BROWNBE.dcr, which has been certified in Form 1.

March 9, 2026

(Date) (Signature of Authorized Person)

Susan Murphy

ACT ID: 3874324289

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the recording of evidence and proceedings in the proceeding that is identified in the certificate.

His Majesty the King v. Todd McGowan, 2026 ONCJ 130

Case Summary

THE FACTS:

A. Circumstances of the offences:

April 6th, 2021 release:

4. Circumstances of the offender:

LEGAL PARAMETERS

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

Crown Position:

MITIGATING AND AGGRAVATING CIRCUMSTANCES:

SENTENCING PRINCIPLES:

Analysis:

Driving offences:

Offences committed while fleeing the police or against a police officer:

Types of sentence - Consecutive or concurrent:

Information 9661:

Information 1618:

Information 2576:

Information 1564:

Information 3799:

Last Information, 3778:

Evidence Act