WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Date: 2017-07-13
Court File No.: 15-Y1245
Parties
Between:
Her Majesty the Queen
— AND —
A.H., a young person
Before: Justice J. M. Copeland
Heard on: June 16, 2017
Reasons for Sentence released on: July 13, 2017
Counsel
Mr. M. Morris — counsel for the Crown
Ms. J. Rekai — counsel for the defendant, A.H.
Decision
COPELAND J.:
Introduction
[1] The circumstances of this case involve a tragic loss of life. Leonel Monterroso went to the mall the evening of October 16, 2015. He was struck and killed by the car driven by A.H.. It is clear from the victim impact statements provided by Mr. Monterroso's family that he greatly loved them, and was greatly loved in return. His family is left to grieve, and the hole in their lives left by his absence will never be filled.
[2] This tragedy has also touched the life of A.H. in ways that will be with him forever. He will have to live with the fact that his actions caused Mr. Monterroso's death.
[3] A significant amount of material has been put before me to consider in assessing the appropriate sentence for Mr. A.H.. This material includes the moving victim impact statements of Mr. Monterroso's family, as well as from some of the witnesses to the events of October 16, 2015; a very thorough pre-sentence report in relation to Mr. A.H.; and character letters and other supporting information about Mr. A.H..
[4] Sentencing is an individualized process. In coming to the appropriate sentence I must take into account the principles and objectives of the Youth Criminal Justice Act ("YCJA"), and in particular the purposes and principles of sentencing under the YCJA. Often, the principles of sentencing pull in different directions. My task is to balance all of the relevant principles, and arrive at a sentence that is proportionate in all of the circumstances, that provides for meaningful accountability on the part of Mr. A.H., and that also fosters his rehabilitation.
Circumstances of Mr. Monterroso and the Impact on His Family
[5] Victim impact statements were provided by many members of Mr. Monterroso's family – his wife, his children, his son-in-law, and his grandchildren. In addition, two witnesses to Mr. Monterroso's death provided victim impact statements. I want to thank all of the individuals who provided victim impact statements. Your contribution to this hearing is very valuable.
[6] Mr. Monterroso's family members spoke eloquently in their victim impact statements about Mr. Monterroso as a person, and the impact on them of his death. I will not summarize all of the victim impact statements, but I will highlight some of the themes that stood out.
[7] Leonel Monterroso was 60 years old when he died. He had been married for 35 years. He had 5 children. He had grandchildren. What stands out from the victim impact statements is that family was the most important thing in Mr. Monterroso's life. He was dedicated to his loved ones. He was kind, generous, and had a great sense of humour. He deeply loved his family, and they loved him back. In his role as husband, father, and grandfather, he was a partner, a provider, a mentor, and a friend.
[8] His family members spoke of being devastated by his death. They spoke of the emotional and physical pain caused by his death, using words like "hurt and despair," "emptiness in all of our hearts," "soul wrenching pain," "a part of my heart is gone and I cannot get it back," "my heart shattered." They spoke of the birthdays, graduations, weddings, and other family events that Mr. Monterroso will miss. Several of his family members found it particularly difficult that they did not have a chance to say good-bye to Mr. Monterroso.
[9] Mr. Monterroso's family members described him as someone who stands up for people. They took some solace in the fact that Mr. Monterroso was acting as a Good Samaritan at the time of his death. The victim impact statements speak to Mr. Monterroso's strong Christian faith. They also speak to the Christian faith of the members of his family. A number of his family members stated that their faith teaches them to forgive, and that through their faith, they have been able, over time, to forgive Mr. A.H..
[10] As a judge listening to the statements of Mr. Monterroso's family members about their love for the man who was their husband, father or grandfather, I can only begin to understand the enormity of their loss. No sentence I impose today will remove their pain. Their lives have been changed in a way that cannot be mended. I am hopeful that their close family bonds, which are obvious from the victim impact statements, and their Christian faith, will continue to provide strength and comfort to them.
Circumstances of Mr. A.H.
[11] Mr. A.H.'s personal circumstances are set out in the very comprehensive pre-sentence report, and in materials filed by defence counsel at the sentencing hearing.
[12] Mr. A.H. was 17 years old at the time of the offence, and is 19 years old now. He lives in the United States, in Tennessee. His parents are separated. At present he lives with his father, and stays with his mother on weekends. His family is supportive of him. However, it is clear there is tension between his parents as a result of their separation, and also their different perspectives on how to address Mr. A.H.'s disability. Mr. A.H. and his family attend a Christian church in their community. I note that the pre-sentence report outlines that if community service is included as an aspect of Mr. A.H.'s sentence, Mr. A.H. could perform it at the free community store run by his church, which provides clothing and household items for people in need.
[13] Mr. A.H. has had no prior involvement with the criminal justice system, either in Tennessee or in Canada. Mr. A.H. has no history of acting out aggressively, at school or elsewhere. The letters filed on his behalf by defence counsel speak to Mr. A.H.'s good character as a diligent student, and a polite and respectful young man. Mr. A.H. has followed his bail terms since his release in October 2015. During the brief time he was in custody before he was granted bail he did not display any behavioural problems.
[14] Most significantly, the pre-sentence report provides information that Mr. A.H. was diagnosed at the age of 15 months with Autism Spectrum Disorder ("ASD"). This is a lifelong disability. He was non-verbal until age 5. Initially, doctors were unsure if he could hear. He had four surgeries before his fourth birthday. He had some therapy at home and in the community. He began to talk around age 5 years, and his vocabulary increased by age 6 or 7. He gradually learned how to read and write. He was schooled at home until the age of 14 years, when he was ready to start high school. Both his mother and his teachers report that he has an excellent memory.
[15] Although Mr. A.H. is high functioning in many ways, including academically, it is clear from the pre-sentence report that Mr. A.H.'s Autism Spectrum diagnosis has an impact on his social interactions with others. He presents as detached and does not show much emotion. He has certain ritual habits and routines involving personal hygiene, lighting, food and clothing. He does not like crowds, loud noises or bright lights. The Assistant Principal of his school describes him as "very socially awkward" at school. His mother advised the pre-sentence report writer that Mr. A.H. has rarely been involved in a situation where people were confrontational with him, and that he would have difficulty knowing how to respond to that. The Social Security Administration disability assessment included in the defence materials filed at the sentencing hearing confirms Mr. A.H.'s autism diagnosis. The specific diagnosis noted is "Autism Spectrum Disorder, Level 1 (Previously Asperger's)." The assessment indicates that he has moderate difficulties in maintaining social functioning.
[16] Mr. A.H. has recently completed high school, in May 2017, and done well academically. Mr. A.H. has plans to apply for college, and the Assistant Principal reports that he will have no issue being admitted. However, A.H. has put those plans on hold for a year, pending the sentencing decision of this court.
[17] I accept the information in the pre-sentence report regarding Mr. A.H.'s Autism Spectrum Disorder diagnosis as reliable. It was not challenged by Crown counsel, and Crown counsel accepted it as a relevant factor to consider in sentencing. Importantly, the information in the pre-sentence report about Mr. A.H.'s diagnosis and the impact of the condition on him comes not only from his relatives, but also from the Assistant Principal and a teacher at Mr. A.H.'s high school, who have known Mr. A.H. and taught him for several years, as well as the disability assessment for the Social Security Administration.
[18] Although Mr. A.H.'s Autism Spectrum diagnosis is longstanding, it appears from the pre-sentence report that his treatment for the condition has in some ways been inconsistent. The pre-sentence report indicates that at times Mr. A.H. has had therapy at home and in the community for his ASD, including behavioural therapy, speech and hearing therapy, and specialists regarding the ASD at various children's hospitals in Tennessee. However, the pre-sentence report states that most of this intervention came to an end when he reached puberty and started high school (which I understand to mean sometime prior to the last 4 or 5 years). The pre-sentence report suggests that Mr. A.H.'s father has had difficulty accepting Mr. A.H.'s autism diagnosis and has at times had difficulty managing the condition. The pre-sentence also suggests that Mr. A.H.'s parents do not see eye to eye on how to manage Mr. A.H.'s disability. I flag these issues with respect to treatment, because for someone who was diagnosed as a young child, and has only recently become an adult in the eyes of the law, to the extent that there may be issues with sufficiency of past treatment, these issues cannot be said to be the fault of A.H..
[19] Both the Assistant Principal and a teacher from Mr. A.H.'s school expressed the view in the pre-sentence report that Mr. A.H. would benefit from counselling – a conclusion I agree with. The pre-sentence report advises that now that he is over 18, Mr. A.H. is eligible for adult disability services and counselling in Tennessee. The pre-sentence report also outlines counselling options available in Ontario in the event a custodial sentence is ordered.
[20] I note that Mr. A.H.'s Autism Spectrum diagnosis was not put into evidence before the court at the liability phase of the hearing. The first the court learned of the diagnosis was in the pre-sentence report. I will comment further on the relevance of the diagnosis in my assessment of whether a custodial sentence is necessary in this case.
[21] The pre-sentence report indicates that although Mr. A.H. is having a difficult time understanding the trial and the fact that he was found guilty, he accepts the decision of the court. The pre-sentence report also indicates that Mr. A.H. feels terrible and deeply regrets that he caused Mr. Monterroso's death, and that he did not intend to harm him. The writer of the pre-sentence report described Mr. A.H. as polite and cooperative, and as "a pensive young man who is attempting to manage his disability."
Contested Factual Issues in Relation to Sentence
[22] Crown counsel led evidence at the sentencing hearing which he argued, if believed, was evidence of a lack of remorse or lack of insight on the part of Mr. A.H.. The evidence was contested by the defence. Defence evidence was called at the sentencing hearing to respond to it.
[23] I will outline the context of the evidence the Crown led at the sentencing hearing. During the trial, Crown counsel cross-examined Mr. A.H. about whether as a 17 year old he was allowed to drive the rental car. He testified that he was not aware that he was not, and that he had gone with his aunt to pick up the rental car, and that the rental agent gave the keys to him. Crown counsel did not lead or seek to lead any evidence at trial to contradict Mr. A.H.'s evidence on this issue (it is an open question whether such evidence would have been admissible, as the issue appears to be collateral).
[24] At the sentencing hearing Crown counsel sought to prove that Mr. A.H. lied about the keys being given to him by the rental agent at the time the car was rented. Crown counsel called the rental agent, and a risk manager for Enterprise Rental, and filed as an exhibit the particular rental contract for the car Mr. A.H. was driving. In response, the defence called Mr. A.H.'s aunt, who attended with Mr. A.H. to pick up the rental car on October 16, 2015.
[25] Crown counsel conceded that because he was seeking to prove that Mr. A.H. lied as an aggravating factor on sentence, he bears the burden of proof to prove it beyond a reasonable doubt on the Gardiner standard, now codified in s. 724(3)(e) of the Criminal Code.
[26] I find that the rental contract clearly lists Mr. A.H.'s aunt, D.A., as the renter, and that she was the person who signed the rental contract. The contract also clearly indicates "No other drivers permitted." I accept that the terms of the rental contract did not permit drivers other than those listed on the contract. This is some evidence that I can consider in assessing whether the keys were given to Mr. A.H. at the time of the rental. But it is far from conclusive.
[27] The rental agent, Mr. Yanes-Ramirez, testified that he prepared the rental contract, including filling in "No other drivers permitted." He testified that he could not recall any discussion with Ms D.A. about other drivers. He testified that Ms D.A. signed and initialed the contract. Mr. Yanes-Ramirez denied he gave the keys to the rental car to Mr. A.H.. He testified that he gave them to Ms D.A..
[28] I do not find Mr. Yanes-Ramirez's evidence to be reliable, primarily for two reasons. First, he was testifying about the rental of the particular vehicle close to two years after the event. He testified from memory. There was no suggestion in his evidence that he ever provided a statement to police about this event when the events were fresh in his mind. I have concerns about his ability to remember one particular rental transaction so long after the event, because he rented cars for a living. He testified that he worked 5 days a week as a rental agent for Enterprise Rental, and he estimated that he handled 15 rentals a day. At the time he testified, he no longer worked for Enterprise Rental. He had worked there for 4 years prior to this rental, and continued to work there for approximately one more year afterwards. Mr. Yanes-Ramirez claimed that he remembered this rental because he heard after the weekend following the rental that someone had been killed. But he was not testifying after the weekend after the rental. He was testifying close to two years later. Thus, I have concerns about the reliability of his memory of the particular rental.
[29] My second concern about the reliability of Mr. Yanes-Ramirez's evidence relates to evidence that Mr. Yanes-Ramirez did not correctly know the company's policies in relation to minimum ages for rentals. I will explain my concern in this regard in dealing with Mr. Whitley's evidence, as it is related to Mr. Whitley's evidence.
[30] Mr. Whitley testified about the policies of Enterprise Rental with respect to not renting to people under certain ages, and fees for additional drivers, as well as training for staff. I accept Mr. Whitley's evidence as true; however, he has no knowledge about the particular transaction involving the rental of the car Mr. A.H. was driving. Mr. Whitley was not present or involved in the particular rental. Thus, he can shed no light on whether Mr. Yanes-Ramirez followed established procedures that day.
[31] Importantly, Mr. Whitley's evidence showed that Mr. Yanes-Ramirez did not have a correct knowledge of Enterprise Rental's policies about minimum age for rentals. Mr. Whitley testified that for a retail rental contract, the type of contract involved in the rental of the car Mr. A.H. was driving, the minimum age for a rental is 21 years. Mr. Whitley also testified that for drivers aged 21 to 24 years, the driver must in addition have transferable liability insurance coverage. Mr. Yanes-Ramirez testified that the minimum age for a rental was 18 years. Thus, I find that Mr. Whitley's evidence casts doubt on Mr. Yanes-Ramirez's knowledge of Enterprise Rental's rental policies in relation to age. This raises further concerns for me regarding Mr. Ramirez's evidence, particularly since Mr. Whitley testified that this information would be part of training for rental agents, and yet Mr. Yanes-Ramirez did not know the correct information.
[32] D.A., Mr. A.H.'s aunt, testified for the defence on this issue. She testified that her cousin L.H. from Tennessee had arranged car rental from Tennessee. Ms D.A. testified that she went with Mr. A.H. to pick up the rental car for L.H. because she was the Canadian contact. Ms D.A. drove her own car to the rental company. Ms D.A. testified that she went earlier in the afternoon to pick up the rental, and spoke to Mr. Yanes-Ramirez and another agent. At the time they only had a minivan. She did not take the minivan because that was not what L.H. had ordered. The rental agents told her to come back later. She returned to the rental agency around 4 p.m. with Mr. A.H.. She said she was rushed because she had to get back to pick up her husband, and it was the eve of their son's wedding. She did not read the rental contract. She had never rented a car before. She said Mr. Yanes-Ramirez took her and Mr. A.H. outside to the rental car. She asked him a question to confirm that the contract included insurance, and he did so, and asked her to initial for that. Mr. Yanes-Ramirez then gave Mr. A.H. the keys. Ms D.A. then went to her own car, and Mr. A.H. left in the rental car.
[33] I found Ms D.A. to be a credible witness. She was consistent in her evidence. Crown counsel argued that I should not accept Ms D.A.'s evidence because it was inconsistent with the terms of the rental contract. Ms D.A. frankly testified that she did not read the rental contract. She said she was in a hurry, because she was just picking up the car, and her son's wedding was the next day. Crown counsel suggested that it was not credible that she would not read the contract for the rental of a car valued at in the range of $40,000. With respect, I reject this argument. The rental contract is a standard form contract. It is not unusual for people to sign standard form contracts without reading the terms.
[34] I have considered Crown counsel's argument that Ms D.A. had a motive to mislead the court, either to protect her nephew, or because of a civil suit against her. Ms D.A. denied that she would lie for either of these reasons. She also testified that she had not at any point been told by anyone that it would help her in the civil suit to say she never read the contract. I believe Ms D.A.'s evidence. I acknowledge that like Mr. Yanes-Ramirez, Ms D.A. was testifying about events close to two years after they occurred, and this raises some concerns for the reliability of her memory.
[35] Considering all of this evidence together, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. A.H. lied about being given the keys by the rental agent.
[36] As a result of my finding of fact that the Crown has not proven beyond a reasonable doubt that Mr. A.H. lied during the trial about being given the keys to the rental car at the time it was rented, it is not necessary for me to consider whether had the Crown proven that the defendant lied at trial about this collateral issue, it would be evidence of a lack of remorse and relevant at sentencing.
Positions of the Parties on the Appropriate Sentence
[37] Crown counsel submits that the Court should impose a custody and supervision order pursuant to s. 42(2)(n) of the Youth Criminal Justice Act ("YCJA"), of 12 months of open custody, followed by six months of community supervision, followed by 1 year of probation pursuant to s. 42(2)(k) of the YCJA. Crown counsel also seeks a driving prohibition order of 10 years, pursuant to s. 42(2)(j).
[38] Counsel on behalf of Mr. A.H. seeks a sentence probation pursuant to s. 42(2)(k) of the YCJA, and a driving prohibition of not more than three years pursuant to s. 42(2)(j).
Law in Relation to Sentencing Under the Youth Criminal Justice Act
[39] The YCJA provides that young people who are under 18 when they commit criminal offences are held accountable for their actions, but in a manner that is different than the way adults are held accountable for criminal offences. The YCJA takes this approach because it recognizes the diminished moral blameworthiness of young people who commit criminal offences, due to their lower level of maturity: R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3.
[40] These principles are visible throughout the YCJA. The declaration of principle in s. 3 of the YCJA provides that the Act is intended to protect the public by holding young people accountable through measures that are proportionate to the seriousness of the offence, and the degree of responsibility of the young person; by promoting rehabilitation and reintegration of young persons who have committed offences; and by supporting the prevention of crime by referring young people to programs or agencies in the community to address the circumstances underlying the offending behavior. The declaration of principle makes clear that the youth criminal justice system must emphasize rehabilitation and reintegration of young people who have committed offences, and fair and proportionate accountability for young people who commit criminal offences.
[41] Section 38 of the YCJA sets out the purposes and principles of sentencing under the YCJA. In determining the appropriate sentence for a young person, a youth court must have regard to promoting the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society, and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. A youth court judge must impose the least restrictive sentence that is capable of achieving these purposes, and that is most likely to rehabilitate the young person and promote a sense of responsibility, and an acknowledgement of the harm done to the victims and the community. In considering whether a sentence will hold a young person accountable in the sense of being a meaningful sanction, the sentence must reflect the level of culpability of the young person, having regard to whether the offence is a product of intentional risk-taking by the offender, the harm caused by the offender, and the normative character of the offender's conduct. The sentence must be proportionate to the seriousness of the offence, and the degree of the young person's responsibility: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941; R. v. A.O., 2007 ONCA 144, 84 O.R. (3d) 561.
[42] Section 39 of the YCJA governs when a custodial disposition is available. A custodial sentence is not available unless at least one of the threshold conditions in s. 39(1) is met. Further, where one of the threshold conditions in s. 39(1) is met, s. 39(2) provides that a court may only impose a custodial sentence where the court has considered all alternatives to custody that are reasonable in the circumstances, and determined that there is not a reasonable alternative or combination of alternatives that will achieve the sentencing purposes set out in s. 38. Section 39(3) provides that in considering whether there are reasonable alternatives to custody, the court must consider the alternatives to custody that are reasonable, the likelihood that the young person will comply with a non-custodial sentence, and alternatives to custody that have been used in respect of young persons for similar offences in similar circumstances.
Analysis
Is Custody Available Under the YCJA in This Case?
[43] In considering whether it is open to me to impose a custodial disposition as requested by Crown counsel, I find that the initial threshold in s. 39(1) is met. I find that dangerous driving causing death is a violent offence within the meaning of s. 39(1)(a). The definition of "violent offence" in s. 2 of the YCJA includes: "an offence committed by a young person that includes as an element the causing of bodily harm." I find that the element of causing death in dangerous driving causing death meets the requirement of being a violent offence: R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668 at paras. 65-87; R. v. R.R., 2016 ONCJ 307 at paras. 44-46.
Is a Custodial Sentence Necessary?
[44] Section 39(2) provides that a youth justice court "shall not" impose a custodial sentence "unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38." I underline that s. 39 is mandatory. If the court finds that there are reasonable alternatives to custody that meet the principles in s. 38, then the court cannot impose a custodial sentence. In making this assessment, the court must also consider the factors listed in s. 39(3).
Range of Sentence
[45] Crown and defence counsel filed a number of cases at the sentencing hearing to show the range of sentence for a young person for the offence of dangerous driving causing death. As is usually the case with sentencing precedents, none of the cases are factually identical to this case. But the cases are helpful to show the range of sentences imposed for this offence.
[46] R. v. M.W., [2013] O.J. No. 6256 (OCJ), involved a joint submission following a guilty plea to the offence of dangerous driving causing death. The youth had been driving down a major city street, weaving in and out of traffic at high speeds. He was travelling at an estimated speed of 80 to 100 km/h when he collided with a vehicle making a left turn on a yellow light. The posted speed limit was 60 km/h. The driver of the vehicle making the left turn, a 73 year old man, was killed. The young person was 17 years of age at the time of the offence. He had no criminal record, and his prospects for rehabilitation were good. Justice Kelly of this court accepted a joint submission of 12 months' probation, and a driving prohibition of three months (taking into account that the young person had already been prohibited from driving for 19 months by his bail conditions). The youth had been on a strict house arrest bail for 19 months prior to the guilty plea. Although there was evidence of excessive speed, and the weaving in and out of traffic, there was no evidence of street racing or other horseplay with another vehicle on the road.
[47] In R. v. M.N., [2004] O.J. No. 5787 (OCJ) the young person pleaded guilty to two counts of dangerous driving causing death. The sentencing judge accepted a joint submission for six months' deferred custody and supervision followed by 18 months' probation. In addition, a 10 year driving prohibition was imposed. The sentencing decision does not provide much detail about the facts leading to the collision; however, it is clear that excessive speed was a factor, and that the collision occurred hear a large high school. The young person appealed only the 10 year driving prohibition to the Court of Appeal, and it was upheld in the context of the sentence as a whole: R. v. M.A.N., 2007 ONCA 12.
[48] I note that deferred custody and supervision is no longer an available sentence pursuant to s. 42(5)(a) as a result of amendments to the YCJA made in 2012.
[49] Crown counsel relied on the authority R. v. R.R., 2016 ONCJ 307, a recent decision of Justice Crewe of this court. That case involved a youth who was involved in street-racing his mother's car, racing against another vehicle. During the race, the youth's car struck and killed an 18 year old male who was riding his bicycle on the road. The youth in R.R. was sentenced to 7 months of open custody, and 3.5 months of community supervision, to be followed by one year of probation. In addition, a five year driving prohibition was imposed. The youth in R.R. pleaded guilty. He was 16 years old at the time of the offence, and had no criminal record or driving record. He had good prospects for rehabilitation. The sentencing judge found that he was remorseful for his actions.
[50] I agree with defence counsel that I must be cautious in my use of the R.R. precedent, because the offence the youth pleaded guilty to in that case was a different and more serious offence than the offence in this case. Although the specific section number is not referred to in the R.R. sentencing decision, it is clear from the language used to describe the offence, and from the analysis, that the youth in that case had pled guilty to dangerous driving causing death while street-racing, pursuant to s. 249.4(4) (see in particular paragraphs 3 and 55 of the reasons in R.R.). On the facts in R.R., the youth's car was travelling 130 km/h as it approached the young man on the bicycle, in an area where the posted speed limit was 60 km/h. Thus, the offence at issue in the R.R. case is not the same as the offence at issue in this case. The different offence is significant when considering whether it is an appropriate precedent to look to in considering the sentence to be imposed on Mr. A.H.. The maximum sentence for dangerous driving causing death while street-racing for an adult under s. 249.4(4) is imprisonment for life. Thus, it is clear that Parliament consider it to be a more aggravated offence than dangerous driving causing death pursuant to s. 249(4), for which the maximum punishment for an adult is imprisonment for 14 years. Quite apart from the different offence in R.R., the fact of street-racing is a significantly aggravating factor which is not present in the facts in Mr. A.H.'s case: see discussion in M.W., supra at para. 24.
[51] In light of the different offence and the very different circumstances in the R.R. case, I find that it does not involve a similar offence in similar circumstances to this case, pursuant to ss. 38(2)(b) and 39(3)(c) of the YCJA. Indeed, the sentence of 7 months custody followed by 3.5 months of supervision, plus probation, imposed in the R.R. case for a more serious offence in significantly more aggravated circumstances speaks to the sentence being sought by Crown counsel in this case as being higher than is warranted in the circumstances of this case.
[52] Defence counsel also referred the court to one adult sentence: R. v. Burger, unreported decision of Justice George of the Ontario Court of Justice, October 20, 2015 (the trial decision is reported at 2015 ONCJ 349). This adult sentencing decision has relevance because s. 38(2)(a) provides that a youth sentence must not result in a punishment that is greater than would be appropriate for an adult who has been convicted in similar circumstances.
[53] The Burger case involved an older female offender, who was found guilty following a trial of two counts of dangerous driving causing death, and two counts of dangerous driving causing bodily harm. She had no criminal record, and a good work history. The deaths involved were of a newborn baby, and her six-year-old sister. The defendant was backing out of a parking spot in a mall, and accelerated at high speed, without braking, into the entrance of a store. The evidence was that in the 5 seconds prior to the collision, the offender's car accelerated from 11 km/h to 46 km/h. The sentence imposed was a suspended sentence and three years' probation, and a five year driving prohibition. The Court of Appeal upheld the conviction in Burger on a defence appeal: R. v. Burger, 2017 ONCA 101. Neither party appealed the sentence imposed.
[54] As I will explain further in addressing the appropriate sentence in this case, I do not find that the facts of Burger are so similar to this case that they effectively impose an upper limit of probation on the sentence that can be imposed on Mr. A.H.. However, the Burger case is of assistance in showing that the range of sentence for dangerous driving causing death is quite varied, and even for an adult, can include probation and a lengthy driving prohibition at the lower end.
The Circumstances of the Offence
[55] As a starting point, I come back to the factual findings I made in my judgment finding Mr. A.H. guilty of dangerous driving causing death. It is necessary to go back to those findings in order to assess a number of factors in arriving at an appropriate sentence, such as whether the precedents put before the court for range of sentence involve "similar circumstances", whether the sentence is proportionate to the seriousness of the offence and the degree of responsibility of the young person, the extent to which the conduct involved intentional risk-taking, and the normative character of the offender's conduct. In referring to specific points below, I refer in particular to paragraphs 102 to 139 and 154 to 170 of my Reasons for Judgment.
[56] Counsel for Mr. A.H. during the trial did not contest that his actions constituted the offence of dangerous driving. Rather, the defence was put forward on the basis that Mr. A.H. acted in self-defence. Although I did not accept that all of the conditions for self-defence were met, I found Mr. A.H. to be a truthful witness, and I accepted much of his evidence. The reason his self-defence claim failed was because I found that objectively, in all of the circumstances, his use of force was excessive and not reasonable, and that he over-reacted to the situation. I will come back to the issue of the reasons for his over-reaction.
[57] It is important to underline a number of findings that I made, which are relevant to the sentencing phase of the trial. I accepted Mr. A.H.'s evidence that Mr. Monterroso hit Mr. A.H.'s car multiple times in the initial interaction outside the Walmart doors. I did not make a finding as to what precipitated that action by Mr. Monterroso. I accepted as a fact that Mr. Monterroso must have perceived that Mr. A.H. did something he did not like in his driving that caused Mr. Monterroso to hit the car. But the evidence was not sufficient to allow me to make a finding of what actually happened prior to the hitting of the car.
[58] I accepted that the hitting of the car by Mr. Monterroso displayed some level of aggression, but I did not accept that he was trying to break the car window. I accepted Mr. A.H.'s evidence that he was frightened when he executed the fast and unsafe left turn up the parking aisle and hit the stroller.
[59] I accepted Mr. A.H.'s evidence that when Mr. Monterroso subsequently blocked his car and then got out and reached into the car and took hold of Mr. A.H.'s right arm, Mr. A.H. was frightened. I accepted Mr. A.H.'s evidence that this was the same man from the interaction outside the Walmart doors, a fact which was confirmed by the evidence of Ms Ingram. I accepted Mr. A.H.'s evidence that he perceived that the man had followed him. I found as a fact that Mr. Monterroso was reaching into Mr. A.H.'s car, and took hold of Mr. A.H.'s arm. I accepted that, as a matter of fact, what Mr. Monterroso was doing was trying to get the keys, because he was aware, as were others in the parking lot, that Mr. A.H. had hit a stroller. He was acting as a Good Samaritan. But I accepted that Mr. A.H. was frightened, based on the fact that Mr. Monterroso was the same person he had just had an altercation with outside the Walmart doors, and he perceived that Mr. Monterroso had followed him. Although Mr. A.H.'s appreciation of all of the circumstances was tragically wrong, it was not without any factual foundation.
[60] As I noted in my reasons, Mr. A.H. called 911 very soon after he hit the stroller, and the 911 call continues until after he hit Mr. Monterroso. The voices of people outside his car are not clearly audible on the recording of the 911 call. But Mr. A.H.'s voice is very clear. As I found in my Reasons for Judgment, the 911 call provides substantial corroboration for Mr. A.H.'s evidence of his fear.
[61] I accepted Mr. A.H.'s evidence that he made the decision to reverse the car because he was afraid and wanted to get further away from Mr. Monterroso. I found that Mr. A.H. was aware of the risk of harm to Mr. Monterroso when he put the car in reverse. All of this happened very quickly, as outlined in paragraph 134 of my Reasons for Judgment.
[62] In considering self-defence, I accepted that the first two branches of the self-defence analysis were met, but found that the Crown had proven beyond a reasonable doubt that viewed objectively, the force used was excessive in the circumstances.
The Role of Mr. A.H.'s Diagnosis of Autism Spectrum Disorder in the Offence
[63] In my Reasons for Judgment I found that Mr. A.H.'s over-reaction to the circumstances was caused by a number of circumstances, including, his youth, his inexperience as a driver, the fact that he was driving a rental car in a place he was not familiar with, and the fact that he was on the phone with 911, and thus distracted from the events occurring around him.
[64] The pre-sentence report and materials filed at the sentencing hearing revealed what I find as a fact was another factor that contributed to Mr. A.H.'s over-reaction to the circumstances, the fact that he is diagnosed as having Autism Spectrum Disorder.
[65] As I noted above, Mr. A.H.'s ASD was not raised during the liability phase of the trial. There was no argument put before the court that Mr. A.H.'s condition had any bearing on either the mens rea of the offence of dangerous driving causing death, or on the assessment of self-defence under s. 34 of the Criminal Code.
[66] However, there is no question that Mr. A.H.'s autism is a relevant factor in assessing the appropriate sentence. In the particular circumstances of this case, I find that it is a mitigating factor, although it also has relevance for assessing protection of the public as a factor in considering the appropriate sentence. In R. v. Davies, 2017 ONCA 467, the Court of Appeal recently reiterated (in relation to an adult sentence) the well-established principle that the fitness of a sentence depends not only on the seriousness of the crime and its consequences, but also on the moral blameworthiness of the offender. An offender's personal circumstances inform the question of moral blameworthiness. This is true for young people as it is for adults: see A.O., supra.
[67] The information in the pre-sentence report about Mr. A.H.'s Autism Spectrum diagnosis is like the missing piece to the puzzle of the cause of Mr. A.H.'s overreaction to the circumstances he faced. As outlined in the pre-sentence report, ASD is a social and communication disorder. Individuals with ASD may have difficulty communicating and have difficulty in social situations. That this is true of Mr. A.H. is clear from the information in the pre-sentence report provided by the Assistant Principal and a teacher from Mr. A.H.'s high school, and from his mother. He is relatively high functioning in sense that he has completed high school, and does well academically. But it is clear from the pre-sentence report that social interaction is one of the primary areas where his ASD diagnosis is an issue. He does not like crowds, loud noises or bright lights. The Assistant Principal of his school describes him as "very socially awkward" at school. His mother advised the pre-sentence report writer that Mr. A.H. has rarely been involved in a situation where people were confrontational with him, and that he would have difficulty knowing how to respond to that. The Social Security Administration disability assessment filed at the sentencing hearing indicates that he has moderate difficulties in maintaining social functioning.
[68] I find that it is an inescapable conclusion from the information provided about Mr. A.H.'s ASD diagnosis, and all of the facts I found about what occurred on October 16, 2015, that Mr. A.H.'s ASD was a significant factor in his perception of and his reaction to Mr. Monterroso hitting his car outside the Walmart doors; in his decision to drive away from Ms Hudson-Ingram and put some space between himself and her when she was yelling at him after he hit the stroller; and in his perception of and reaction to Mr. Monterroso blocking his car and then reaching in and taking hold of his arm. A combinations of unusual and unfortunate factors came together with Mr. A.H.'s ASD, and his youth and inexperience, to produce the tragic result of Mr. Monterroso's death. Mr. A.H. is responsible for his decisions and his poor judgment. But his actions must be looked at in their full context, including his ASD diagnosis.
[69] Before turning back to how the purposes and principles of sentencing apply to this case, I want to address one final factual issue. I accept, based on the pre-sentence report, that Mr. A.H. is remorseful for his actions and deeply regrets that he caused Mr. Monterroso's death. Absence of remorse is not an aggravating factor in imposing sentence, but the presence of remorse can be a mitigating factor. Most often, remorse is weighed in the context of a guilty plea, because that is one common and accepted way to show remorse. But the choice to have a trial does not disentitle a defendant from a finding that he is remorseful, if there is a factual basis for such a finding. I accept Mr. A.H.'s statements of remorse to the writer of the pre-sentence report as true. I note as well that there was nothing in the conduct of Mr. A.H.'s defence at trial that leads me to question his remorse.
Application of the Purposes and Principles of Sentencing to This Case
[70] The fundamental issue I need to consider, taking into account the principles and purposes of sentencing in s. 38 and 39 of the YCJA, is whether a custodial sentence is required in order to achieve the purposes set out in s. 38, or whether there are reasonable alternatives that are less restrictive that are capable of achieving those purposes. In seeking a custodial sentence, Crown counsel argues that custody is necessary in order to provide meaningful accountability for Mr. A.H. for his actions. Crown counsel concedes that custody is not necessary for protection of the public in this case (but seeks a lengthy driving prohibition on that basis).
[71] In considering whether custody is necessary I consider the analysis outlined by the Ontario Court of Appeal in A.O., supra, as to how to approach the need for meaningful accountability. In assessing what is an appropriate and proportionate punishment, I consider the moral culpability of Mr. A.H., having regard to the presence or absence of intentional risk-taking, the harm caused by Mr. A.H., and the normative character of his conduct.
[72] Although Mr. A.H. conceded in his evidence, and I found as a fact, that when he reversed the car as Mr. Monterroso was reaching in, he was aware that this created a risk to Mr. Monterroso, I do not find that this is the type of intentional risk-taking behaviour that the court referred to in A.O. In the context of dangerous driving, the courts have repeatedly recognized factors such as street-racing, horseplay with other vehicles on the road, speeding, or consumption of drugs or alcohol as factors that involve intentional risk-taking and increase the moral blameworthiness of an offender's conduct. Mr. A.H.'s conduct in this case is of a different nature. I accepted his evidence that he was afraid when he reversed the car, because he saw that Mr. Monterroso was the same person from the interaction outside the Walmart doors, and he perceived that Mr. Monterroso had followed him, blocked his car, and was now reaching in and taking hold of his arm. As I have outlined, Mr. A.H.'s ASD was a significant contributing factor in his reaction. Mr. A.H. acted out of fear. He was wrong and over-reacted. But his actions were not the type of intentional risk-taking behaviour that the Court of Appeal was considering in A.O., or that is seen in many dangerous driving cases.
[73] The sentence must reflect that harm caused by Mr. A.H.'s conduct. Mr. A.H. caused the tragic and unnecessary death of Mr. Monterroso. Death is the most serious type of consequence our criminal law addresses. The victim impact statements from Mr. Monterroso's family, which I have outlined, speak to the magnitude of the loss.
[74] The sentence must also be appropriate to address the normative character of Mr. A.H.'s conduct. As the Court of Appeal noted in A.O., this requires the court to consider society's values. This factor speaks to considering the nature of the offender's conduct, and the offender's role in the offence, and an objective, reasoned, and measured determination of what punishment our society considers appropriate for this offence. I find that when all of the circumstances of this case are considered, they call for restraint in sentencing. Mr. A.H. did not set out on an intentionally dangerous course of conduct, such as street-racing or speeding, that day. He went to the mall. As did Mr. Monterroso. A combinations of unusual and unfortunate factors came together with Mr. A.H.'s ASD, and his youth and inexperience, to produce the tragic result of Mr. Monterroso's death.
[75] I find that there is no need for specific deterrence in this case. Mr. A.H. did not engage in intentionally risky behaviour; rather a combination of his own actions, the unusual circumstances that came together that day, his ASD, and his youth and inexperience, resulted in Mr. A.H. making the poor decisions that led to Mr. Monterroso's death. These factors speak to the need for rehabilitation, in the sense of counselling to assist Mr. A.H. by giving him the tools to better manage his ASD, and to identify situations that may be difficult for him to deal with, and either avoid those situations, or seek appropriate help and support.
[76] Nor do I find that a need for denunciation is a significant factor in this case. Very often in dangerous driving cases denunciation is an important sentencing principle, in order to drive home the message that intentionally driving in a way that creates danger to the public will not be tolerated by society. That is the case in cases involving conduct such as street-racing or speeding. Given the unusual nature of the circumstances of the offence in this case, and the role played by Mr. A.H.'s ASD, the need for denunciation is greatly decreased.
[77] Protection of the public is a valid concern in this case, but in a limited way. It is a valid concern in relation to Mr. A.H. driving, and what length of driving prohibition should be imposed. This is not a concern that Mr. A.H. would intentionally engage in dangerous conduct; but rather, that in light of what occurred in this case, as a result of his ASD, Mr. A.H. may perceive events as more dangerous than they objectively are, and may react inappropriately. But I do not want to overstate this risk.
[78] Protection of the public does not support the imposition of custody in this case. Mr. A.H. has no criminal record. He has lived his life without blemish to this point. He has no history of aggressive behaviour of any kind. And there is every reason to believe that he will comply with any order this court makes, given his good compliance with his bail order for a lengthy period of time.
[79] Considering the principle that similar sentences should be imposed on similar young people for offences committed in similar circumstances, I find that of the cases referred to above at paragraphs 45-54, R.R., M.W., and M.N., all involve offenders who are significantly different from Mr. A.H.. None of the young people in those cases had the circumstance faced by Mr. A.H. that a medical condition, his ASD, contributed to his actions in committing the offence. Further, I find that in each of those cases, the conduct of the young person was more intentionally risk-taking than Mr. A.H.'s conduct. I have already noted that R.R. involved street-racing, extremely dangerous and intentional conduct. M.W. involved speeding, and weaving in and out of traffic at high speed, also intentionally dangerous conduct. M.N. also involved speeding. In light of these differences, I find that this case warrants a lesser sanction that the sentences in those cases. I have considered that all of these cases involved guilty pleas, and Mr. A.H. chose to have a trial. However, it is well-established that having a trial is not an aggravating factor in sentencing. And as I have explained, I accept that Mr. A.H. is remorseful.
[80] This case is closer to the Burger decision. On the facts, Mr. A.H.'s conduct is more intentional than was Ms Burger's (in many ways' Ms Burger's conduct is unexplained, if one reads the trial judgment). But Ms Burger was an adult, not a young person. As I have noted, Ms Burger was placed on probation, and a five year driving prohibition was imposed.
[81] In all of the circumstances of this case, and taking into account the factors I have outlined, I find that the sentencing principles of the YCJA can be fulfilled through the maximum probationary term of two years, including counselling and community service, and a lengthy driving prohibition. As I have found that reasonable alternatives to custody can fulfill the principles and purposes of sentencing, as custodial sentence cannot be imposed.
[82] For the sake of completeness of the record, I note that Mr. A.H. spent 5 days in pre-sentence custody before he was granted bail. This is not a factor I give significant weight in my sentencing decision. Whether or not Mr. A.H. had spent those 5 days in pre-sentence custody, I would still come to the conclusion that a custodial sentence is not required. Further, in reaching the conclusion that a custodial sentence is not required, I do not place any weight on the defence argument that there is a risk that Mr. A.H. would be bullied if he were sentenced to a custodial sentence. I agree with Crown counsel that the court should presume that the custodial authorities are capable and will take appropriate steps to prevent bullying for young people who are sentenced to custodial sentences.
The Possibility of Transfer of the Probation Order to Tennessee
[83] Before I address the specific terms of probation and the driving prohibition, I want to address the issue of whether Mr. A.H.'s probation can be transferred to Tennessee through Canada's agreements with the United States for transfer of offenders or through other agreements (or informally). The record before the court was not satisfactory for me to assess whether such a transfer is possible. The probation officer who prepared the pre-sentence report advised that she believed that as a matter of law it was possible, but that she was not aware of it ever having been done (the pre-sentence report only addressed the possibility of transferring a custodial sentence). Crown counsel did not have any information on the possibility of transferring a probation order. Counsel for Mr. A.H. advised the court that she had spoken to a lawyer in the United States who advised her that a probation order can be informally transferred to the United States. However, this information was provided in oral submissions, without any detail. Counsel for Mr. A.H. did file a letter from a Program Manager at the Southwest Tennessee Community Corrections Program advising that he would be willing to monitor and document any community service that Mr. A.H. may be required to perform as part of his sentence.
[84] Ultimately, the order I make is a Canadian order. The Ontario youth probation authorities have the responsibility to supervise Mr. A.H.'s compliance with the order. If there is an international agreement that allows for the transfer of the order to Tennessee, nothing in my order today prevents such a transfer. But because it is not clear to me that the probation order can be transferred to Tennessee, I have framed the probation terms to allow the Ontario youth probation authorities flexibility in how they carry out their supervision of Mr. A.H., including flexible means of reporting. If it is possible, either formally or informally, for the Ontario youth probation authorities to work with the Tennessee probation authorities to carry out the supervision of Mr. A.H., that is permissible under this order, in the discretion of the Ontario youth probation authorities. In addition, I have included a term in the probation terms that requires Mr. A.H. to appear before me approximately 9 months from now for a progress update.
The Sentence Imposed
[85] I order that Mr. A.H. be placed on probation, pursuant to s. 42(2)(k) of the YCJA for a period of two years, with the following conditions:
Keep the peace and be of good behavior;
Appear before the youth court when required to do so, and particularly on April 26, 2018 before Justice Copeland or her designate for a progress report;
Report to and be supervised by the Provincial Director or a youth worker as required. After the first reporting today, reporting may be in person, by phone or by other means, in the discretion of the Provincial Director or the youth worker. In the discretion of the Provincial Director or the youth worker, arrangements may be made to coordinate reporting with the Tennessee probation authorities if means exist to do so.
Reside at an address approved by the Provincial Director or youth worker, and be amenable to the rules and discipline of the residence;
Notify the youth worker assigned to your case of any change of address;
Not to have any contact directly or indirectly with the family of Leonel Monterroso;
Attend and actively participate in such assessment or counselling programs as recommended by your youth worker;
Sign any necessary releases so that your youth worker can confirm participation and attendance in any counselling, assessment and treatment programs;
Not to operate a motor vehicle;
Complete 100 hours of community service. At least 50 hours of the community service are to be completed within the first 9 months of this probation order;
Provide written proof of completion of community service hours to your youth worker;
Complete an accredited driver's education course approved by the youth worker at the young person's expense.
[86] Crown counsel asked that I impose a driving prohibition of ten years. Counsel on behalf of Mr. A.H. asked for a driving prohibition not exceeding three years. A preliminary issues arises as to what is the maximum period that the court can impose a driving prohibition in a youth court proceeding. Section 42(14) of the YCJA limits the duration of most youth court sentences to two years. However, some sentences are exempt from the two year maximum. Prohibition orders under s. 42(2)(j) are one of the exceptions to the two year maximum. Although s. 42(14) exempts prohibition orders from the two year maximum duration, it is silent about what the maximum length is for a prohibition order.
[87] I asked counsel for submissions on whether as a matter of statutory interpretation the applicable maximum driving prohibition for a youth would be that set out in s.259(2)(b) (ten years) or that set out in s. 259(2)(c) (three years). The maximum term of a discretionary driving prohibition under s. 259(2) is determined by the maximum sentence of imprisonment available. The issue of which maximum applies to a young person turns on whether, when considering which maximum prohibition applies, one uses the parallel maximum adult sentence for the offence of dangerous driving causing death under s. 249(4) (up to 14 years imprisonment), or the maximum custodial term for a youth for dangerous driving causing death (up to two years).
[88] Having considered this issue, I find that the maximum youth driving prohibition for the offence of dangerous driving causing death is 10 years. I reach this conclusion for the following reasons. S. 42(14) of the YCJA exempts prohibition orders from the two year maximum on most types of youth sentences, but does not specify any maximum for a youth prohibition order. S. 38(2)(a) has the effect that a youth driving prohibition cannot be longer than an adult driving prohibition for the same offence committed in similar circumstances. The maximum driving prohibition for an adult convicted of dangerous driving causing death is 10 tears, pursuant to s. 259(2)(b) of the Criminal Code. I find that the only maximum limit provided by the YCJA on the length of a youth driving prohibition is that it cannot exceed the length of the driving prohibition that could be imposed on an adult for the same offence in similar circumstances. In this case, the possible maximum length for an adult is 10 years, and so that same possible maximum applies to a youth. Further, in the decision of M.A.N., supra (affirming R. v. M.N., supra), the Ontario Court of Appeal upheld a 10 year driving prohibition as part of a youth sentence for two counts of dangerous driving causing death. Although the Court of Appeal did not engage in the statutory interpretation analysis of why a 10 year driving prohibition is available, I am bound by the Court of Appeal's conclusion that a driving prohibition of up to 10 years is available as part of a youth sentence for dangerous driving causing death.
[89] This conclusion only settles the issue of what is the maximum possible driving prohibition. The length of the driving prohibition which is appropriate in any particular case is governed by the principles that govern all youth sentences, which I have outlined at paragraphs 39-41 above.
[90] I find that a lengthy driving prohibition for Mr. A.H. is justified on the basis of protection of the public, and holding Mr. A.H. accountable by meaningful consequences for his actions. Driving is a privilege. Taking away that privilege for a significant period of time is a means of holding Mr. A.H. accountable for his actions. Taking into account all of the circumstances of this case, I will make an order prohibiting Mr. A.H. from operating a motor vehicle for a period of five years. Mr. A.H. has already been prohibited from driving by the terms of his bail for almost 21 months. Together with the five year driving prohibition I impose today, this is a total driving prohibition of almost seven years. Seven years is a significant period of time to prohibit a young person from driving. In five years, Mr. A.H. will be 24 years old. He will have had the benefit of counselling under the probation order, and the maturity that five more years will bring.
[91] I thank counsel for their assistance throughout the trial and sentencing hearing.
Signed: Justice J.M. Copeland
[Corrected version re-released July 14, 2017]