Court of Appeal for Ontario

Date: 2025-03-31
Docket: COA-23-CR-1354
Before: Lauwers, Roberts and Zarnett JJ.A.

Between:
His Majesty the King (Respondent)
and
Mason Perry (Appellant)

Appearances:

• Mason Perry, acting in person
• Megan Savard, appearing as duty counsel
• Nicole Rivers, for the respondent

Heard: March 3, 2025

On appeal from the sentence imposed on December 20, 2023 by Regional Senior Justice M. Edward Graham of the Ontario Court of Justice.

Introduction

Lauwers J.A.:

[1] Mason Perry pleaded guilty and was convicted of dangerous driving causing death and dangerous driving. He was sentenced to three years in custody on a joint sentence submission, but appeals the lifetime driving prohibition imposed by the sentencing judge as an ancillary order. He has served his custodial sentence.

[2] The sole issue on this appeal is whether the sentencing judge erred in imposing a lifetime driving prohibition on Mr. Perry, who must wait ten years before he can apply to the Parole Board for a reduction of his prohibition under s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

[3] I first set out the facts that led to his convictions, and then turn to the sentencing principles.

A. Factual Overview

[4] On September 3, 2021, Mr. Perry recklessly collided with two separate vehicles on Highway 407 near Milton. He fled the scene on foot. He was charged with one count of dangerous operation and two counts of failure to stop after an accident.

[5] After this arrest, Mr. Perry was apprehended under the Mental Health Act, R.S.O. 1990, c. M.7, and subsequently placed on a Form 1 psychiatric hold at the Trillium Health Partners Mississauga Hospital. He stayed in hospital until he was discharged three days later and released to his mother. The psychiatric assessment report stated: “The doctor told [his mother] if he was behind the wheel again, he could kill somebody.” Despite the doctor’s concern, Mr. Perry’s licence was not suspended at this time.

[6] A week later, on September 10, 2021, Mr. Perry was driving at about 160 km/h in a posted 50 km/h zone. He sped through a red light and struck Ms. Karen Franklin’s car. Ms. Franklin suffered a vertebral fracture and died.

[7] The custodial sentence of three years included a concurrent sentence of eight months for the September 3, 2021 charges.

[8] At the time of the offences Mr. Perry was 27 years old.

B. The Sentencing Principles

[9] In determining any sentence, and in accordance with the principle of restraint as codified in ss. 718.2(d) and (e) of the Criminal Code, RSC 1985, c C-46, the court must consider all sanctions apart from incarceration and, where it must be imposed, the duration should be as short as possible and tailored to the offender’s individual circumstances: R. v. Batisse, 2009 ONCA 114, paras. 32-35. The principle of restraint also directs courts, when sentencing a youthful offender for a first offence, not to prioritize denunciation and deterrence over rehabilitation: R. v. Habib, 2024 ONCA 830, para. 31.

[10] The principles of denunciation and deterrence, however, are “particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens”: R. v. Frickey, 2017 ONCA 1024, para. 4; R. v. Augustine, 2019 ONCA 119, para. 11. As this court stated in R. v. Rawn, 2012 ONCA 487, paras. 48-49, “[a] motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives” and, accordingly, the licence to drive is a privilege that comes with immense responsibility.

[11] In motor vehicle accidents, the court may attach less weight to certain mitigating factors such as youth: R. v. Lacasse, 2015 SCC 64, para. 79. Because of the dire consequences of a fatal accident, significant weight is given to the sentencing objectives of deterrence and denunciation.

[12] The sentencing judge has discretion in determining the weight to be given to aggravating or mitigating circumstances: R. v. Nasogaluak, 2010 SCC 6, paras. 43-46; Lacasse, para. 78. Unless the sentence is demonstrably unfit, and absent an error in principle that affected the sentence, an appellate court must defer to the sentencing decision made at trial: R. v. M.(C.A.), para. 90; R. v. Ramage, 2010 ONCA 488, para. 69.

C. The Sentencing Principles Applied

[13] The Crown proposed a lifetime driving prohibition. Trial defence counsel proposed a driving prohibition of six years. Duty counsel on appeal submits that a driving prohibition of six years would be fit, but concedes that ten years would still be appropriate.

[14] Duty counsel argues that the sentencing judge failed to consider the principle of restraint in sentencing, and that this and related errors in principle had an impact on the driving prohibition aspect of the sentence. She also argues that the sentence is demonstrably unfit under Lacasse as it relates to the driving prohibition. She makes five points. First, the principle of restraint applies because Mr. Perry was a first-time offender. Second, there are no comparable cases imposing a lifetime driving prohibition. Third, Mr. Perry’s mental health issues should have been treated as a mitigating factor, but instead his mental health became an aggravating factor. Fourth, it was an error in principle for the sentencing judge to inferentially insist on risk elimination rather than risk management in relation to Mr. Perry’s mental health as a potential risk factor. Fifth, the prohibition is harder on Mr. Perry, who lives in a more rural area, than it would be for someone living in a more urban area where there are more transportation alternatives.

[15] I address each point in turn.

(1) Restraint and a First-time Offender

[16] It is difficult to see Mr. Perry as a typical first-time offender in respect of the conviction for dangerous driving causing death, especially in view of the charges for the September 3 collisions.

[17] On appeal, the court must look at the sentence as a whole, not each component individually. Under s. 718.2(e) of the Criminal Code, a carceral sentence may be shortened by the imposition of a longer driving prohibition: Frickey, para. 10. In this case, the carceral portion of the sentence here was on the shorter side and offset the lifetime driving prohibition.

(2) Comparable Cases

[18] While lifetime driving prohibitions are not a common sentence, long prohibitions have been employed in previous cases to counterbalance lighter custodial sentences.

[19] Lifetime driving prohibitions have been imposed in cases such as R. v. Lam, R. v. Nusrat, 2009 ONCA 31, and R. v. Day, 2019 ABCA 103:

• Lam: Lam was found guilty of criminal negligence causing death. He engaged in a “show of speed” with another vehicle which lasted less than one minute. He caused a collision while driving at an estimated speed of 170 km/h in a 70 km/h zone and killed one person. He was 26 on the day of the accident. He was sentenced to imprisonment for two years less a day, followed by probation for a period of three years, and a lifetime driving prohibition.

• Nusrat: Nusrat pleaded guilty to criminal negligence causing death. He was street racing with two other cars on Highway 400 when he cut off and struck a tractor-trailer. He killed the driver of the trailer. He was 19 on the date of the collision and had two prior convictions for speeding. Nusrat was sentenced to two and a half years’ imprisonment, two years’ probation, 140 hours of community service, and a lifetime driving prohibition.

• Day: Day was convicted of failing to stop when being pursued by a peace officer and driving while disqualified. He had twelve previous convictions for driving while disqualified, and four previous convictions for criminal flight. He had been incarcerated multiple times and had received three different driving prohibitions. On the first count, he received a sentence of one year and eight months, together with a three-year driving prohibition, which was the maximum available. On the second count, he received a consecutive sentence of one and a half years’ imprisonment, and a lifetime driving prohibition.

[20] Duty counsel on appeal relied on R. v. Auger, 2000 BCCA 557, R. v. Antunes, 2013 BCCA 127, and Lacasse to argue that, even in the cases where the harm and behaviour of the offender was more serious, courts have not imposed a lifetime prohibition:

• Lacasse: Lacasse pleaded guilty to two counts of impaired driving causing death. He lost control of his vehicle while entering a curve on a country road. He was speeding and impaired by alcohol. Two passengers died instantly. Lacasse was sentenced to six years and six months’ imprisonment and received a driving prohibition for two years and four months commencing at the end of the incarceration period.

• Antunes: Antunes was convicted of two counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, and three counts of failing to remain at the scene of an accident. He struck three individuals with his car after they had just exited a taxi while in the downtown core of Vancouver. One victim died instantly and another later in hospital. The third person survived but sustained serious injuries. The police had been following Antunes prior to the accident for suspicious behaviour and tried to stop him. They abandoned the chase when Antunes reached speeds of about 100 km/h and ran a red light. After striking the three victims, Antunes swerved, stopped briefly and then took off. Antunes had a lengthy driving record and eight previous driving prohibitions. He was sentenced to five and a half years’ imprisonment and received an 11-year prohibition from driving.

• Auger: Auger was convicted for one count of manslaughter and two counts of criminal negligence causing bodily harm. Auger deliberately drove her van into the oncoming lane of traffic with her headlights turned off. She killed one person and injured two others. Auger was in her early 30s on the date of the collision. Her criminal record was for “a small number of convictions for possession of drugs.” She was sentenced to 6 years’ imprisonment and received a driving prohibition for 20 years.

[21] I am not persuaded that these cases establish a fixed range for driving prohibitions or render the sentence unfit. The applicable caselaw reveals a wide range in the length of custodial sentences and driving prohibitions imposed in similar cases. These ranges should be treated as guidelines, and not “hard and fast rules”: Lacasse, para. 60. This shows the individualized nature of sentencing for each offender and the degree of discretion accorded to the sentencing judge.

[22] One factor to be considered is the offender’s likelihood of recidivism. This court noted in Frickey, para. 4, a “driving prohibition serves as the most practical means to ensure the protection of the public.” This factor recognizes that driving is a privilege, and that the offender who has engaged in dangerous driving presents a risk to the public. This also speaks to the need for specific deterrence in sentencing.

[23] The sentencing judge was in the best position to determine the appropriate sentence in Mr. Perry’s circumstances and took into account the appropriate considerations. He noted that driving can be an important part of rehabilitation. However, considering that driving is a privilege, the seriousness of the offences, Dr. Ramshaw’s assessment (discussed below), and Mr. Perry’s history of not being able to appropriately manage his mental health difficulties, the sentencing judge determined that a lifetime driving prohibition was appropriate in the circumstances. I see no error in this conclusion, nor do I accept duty counsel’s argument that the sentence significantly departs from previous caselaw.

(3) Mr. Perry’s Mental Health

[24] Dr. Ramshaw conducted a psychiatric assessment to determine whether Mr. Perry was criminally responsible under s. 16 of the Criminal Code. The defence of not criminally responsible on account of a mental disorder was not pursued at trial.

[25] Dr. Ramshaw’s diagnoses were these:

Mr. Perry has a probable bipolar disorder, though a substance-induced bipolar disorder could not be ruled out. He also has substance use disorders (alcohol in remission, cocaine in remission, and cannabis), a personality disorder with borderline features, and he likely has a gambling disorder.

[26] Dr. Ramshaw added that Mr. Perry was “frequently non-adherent with mood stabilizing medication, including until shortly before the motor vehicle accidents in September 2021.”

[27] There is no dispute that mental health challenges may serve as a mitigating factor and lower the offender’s moral blameworthiness when there is a causal connection between the mental health challenges and the offences at issue: R. v. Fabbro, 2021 ONCA 494, para. 25; R. v. Megill, 2021 ONCA 253, para. 171; R. v. Hart, 2015 ONCA 480, para. 6. This court in Fabbro, at para. 25, instructed that mental health challenges may be taken into account where “a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds”.

[28] The sentencing judge correctly applied these principles. Mr. Perry’s struggles with his mental health were taken into account as a mitigating factor to support the joint submission at sentencing on a custodial sentence in the lower range.

(4) Risk Elimination versus Risk Management

[29] Mr. Perry’s mental health challenges pose a risk to the public should he resume driving without proper compliance with a treatment plan. Duty counsel argues that the sentencing judge inferentially insisted on risk elimination rather than risk management in relation to Mr. Perry’s mental health as a potential risk factor. Duty counsel argues that, in doing so, the sentencing judge made an error in principle.

[30] Duty Counsel points to this submission by the trial Crown in reply as the source of the error:

So, all of this to say, Your Honour, is that the – the historical picture painted by Mr. Perry is one of instability. It is one that has not been managed well in the community in the sense of his own mental health. I’m not saying that he’s acted out in any criminal antecedent way, but the genesis – if the genesis of this occurrence links to the management and our trust and faith in Mr. Perry to remain stable. In my respectful submission, this report paints a picture of a person who should never get behind the wheel of a car again, and who we should never risk having a moment or a crisis episode, so that we never have two families in the courtroom again, at least by the driving – the hands on the driving wheel of Mr. Perry.

[31] In my view the sentencing judge’s approach was appropriate. As this court instructed in Rawn, para. 49:

It must be made clear that driving a motor vehicle is a privilege, not a right. With that privilege comes responsibility. This responsibility entails respecting the laws that govern driving so that the public can reasonably expect that when using our road system their lives and security will not be threatened by unexpected reckless conduct by impulsive drivers…

While the protection of the public is relevant in determining the suitability and duration of a driving prohibition, what is at stake is not a right but a privilege. This is not comparable, as duty counsel suggests, to dangerous offender or Ontario Review Board proceedings where restrictions might limit the offender’s liberty.

(5) Living in a Rural Area

[32] Living in a rural area magnifies the impact of a driving prohibition. It makes it harder for Mr. Perry to leave the house and perform daily tasks such as buying groceries, seeing friends and family, or getting to work. As duty counsel noted, it would create additional hardship for Mr. Perry to attend medical appointments with a psychiatrist or pick up medication. This was not an issue raised in sentencing submissions, nor is it clear that Mr. Perry was always intending to live in a rural area. In my view the sentencing judge cannot be faulted for not taking into account a factor that the defence did not raise.

D. Disposition

[33] I would dismiss the appeal.

[34] It remains open to Mr. Perry to apply to the Parole Board for a reduction of his driving prohibition after ten years have passed since the imposition of the prohibition.

Released: March 31, 2025

“P.D.L.”
“P. Lauwers J.A.”
“I agree. L.B. Roberts J.A.”
“I agree. B. Zarnett J.A.”