Court Information

Ontario Court of Justice

Date: February 19, 2020

Court File No.: NEWMARKET 4960 999 19 90000897

Parties

Between:

Her Majesty the Queen

— AND —

Jeffrey DeFreitas

Judicial Officer and Counsel

Before: Justice Marcella Henschel

Heard on: October 7, November 15, 2019, January 9 and 16, 2020

Reasons for Judgment Delivered on: January 16, 2020

Written Reasons Released: February 19, 2020

Counsel:

B. McCallion, for the Crown
M. Fahmy, for the defendant Jeffrey DeFreitas

HENSCHEL J.:

A. Summary of the Facts

[1] On October 7, 2019 Jeffrey DeFreitas plead guilty to careless driving contrary to s. 130 of the Highway Traffic Act. The parties filed an Agreed Statement of Fact in respect of the events that led to the serious accident and the tragic death of Alwyn Lloyd, a passenger in Mr. DeFreitas's vehicle.

[2] The Agreed Statement of Facts indicated that on February 21, 2017 Jeffrey DeFreitas was driving his Honda CRV northbound on Keele Street on his way to work when he lost control of his vehicle, which began to roll, was struck by a southbound car, and came to rest in the southbound curb lane of Keele Street in Vaughan.

[3] The accident scene on Keele Street was 36 meters south of Rivermede Road. At the location Keele Street is straight and level with five lanes. There are two lanes for northbound traffic, two lanes for southbound traffic, and a shared centre lane. The shared centre lane becomes a left turn lane near the intersection with Rivermede Road for vehicles to turn left to travel westbound on Rivermede Road. There is also a northbound right turn lane on Keele Street for Rivermede Road. The intersection of Keele Street and Rivermede Road is controlled by traffic signal lights. The traffic lights were functioning properly on February 21, 2017.

[4] In the moments before the accident, Mr. DeFreitas was travelling northbound on Keele Street at approximately 7:20 a.m. with his two coworkers, Jason Rodgers, and Alwyn Lloyd. Their shift was scheduled to begin at 7:00 a.m. They often showed up late without consequence.

[5] As Mr. DeFreitas approached the intersection of Keele Street and Rivermede Road he intended to turn right. He was travelling more than the posted 60 km/hour speed limit as he approached ten to twenty northbound cars that were slowing down for a light that would be turning red at the intersection. As Mr. DeFreitas changed lanes to pass a northbound vehicle, he sped up, but then realized that the car in front of him, in the left lane, had begun to stop. To avoid a collision, he turned to the left into the turning lane and began to lose control of his vehicle. While in the shared middle lane he was unable to gain control of his vehicle. The vehicle began to roll onto the passenger side and crossed into the oncoming lanes. Mr. DeFreitas's vehicle was struck while on its roof by a southbound Honda Accord and the CRV continued towards the west curb. The CRV struck the west curb of Keele Street and slid north, while on its roof, along the curb before coming to a stop. There was extensive damage to the Honda CRV and Mr. Lloyd suffered serious injuries which caused his death.

[6] Based on the distance travelled by the Honda CRV after it lost control, rolled, and collided with another vehicle, and the amount of damage to the vehicle, the accident reconstructionist, PC McKerigan, concluded that the Honda CRV was travelling in excess of 77 km/hour but was unable to determine the exact speed.

[7] The vehicle was inspected. No mechanical failure was identified that would account for the accident occurring. No actions of other drivers contributed to the accident occurring. The road conditions were good and it was a clear, dry, and sunny day.

[8] Mr. DeFreitas was travelling in a heavy populated urban area during rush hour. The traffic was heavy, as was ordinarily the case for that time of day at that location.

[9] Mr. DeFreitas was operating his motor vehicle without due care and attention for other vehicles on the roadway by travelling at a speed greater than the 60 km/hour speed limit as he approached the busy intersection where traffic was stopping and attempting to pass another vehicle. His careless driving led to the loss of control of his vehicle. It was careless for Mr. DeFreitas to approach the intersection and the traffic at the speed he was travelling and to attempt to maneuver around another vehicle. Mr. DeFreitas's careless driving caused him to lose control of his vehicle and resulted in the death of his passenger Alwyn Lloyd.

B. Relevant Statutory Provisions and Position of the Parties

[10] Careless driving under s. 130 of the Highway Traffic Act, at the time of the offence, provided that:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her license or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 41.

[11] The Crown submits that the court should impose a period of custody of 5 months jail, a $1,000 fine, and a driving suspension for a period of 2 years.

[12] Mr. Fahmy, on behalf of Mr. DeFreitas, submits that the court should impose a $1,000 fine, and probation for 18 months, and an 18 month driving suspension.

C. Circumstances of the Offender

[13] Mr. DeFreitas is now 31 years old. He came to Canada as a visitor from St. Vincent. Mr. DeFreitas has a 5-year-old daughter and is the step-father to his partner's three children. At the time of the accident he worked for Mr. Marble, a company that makes marble counter tops, shower bases, and accessories. He had worked for Mr. Marble for 8 years.

[14] Mr. DeFreitas is now on disability as a result of the injuries he suffered from the accident. He suffered a back injury, a punctured lung, and laceration to his liver. He required surgery and was in hospital for several days. The accident had a significant psychological impact upon Mr. DeFreitas. He continues to think about the accident and suffers from insomnia and depression. He has ongoing pain and takes medication. He continues to receive treatment for the psychological impact of the accident.

[15] Following his arrest for dangerous driving causing bodily harm, Mr. DeFreitas spent eleven days in pre-trial custody between March 27, 2017 and April 6, 2017. His bail conditions prohibited him from driving from March 27, 2017 until October 2019, a period of 2 years and 9 months. He reported weekly.

[16] Mr. DeFreitas has completed twenty-two hours of community service work for the Salvation Army. He has also completed a defensive driving course.

[17] Mr. DeFreitas in a thoughtful statement expressed his profound remorse for the accident and his grief at the loss of his friend. I have no doubt that the accident has had a profound impact upon him.

D. Principles of Sentencing and Range of Sentences for Careless Driving

[18] A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

[19] The Crown submitted that Mr. DeFreitas was committed to stand trial on the charge of dangerous driving causing death, and that the evidence heard at the preliminary hearing established that Mr. DeFreitas's driving constituted a marked departure from the standard of care exercised by a reasonable person.

[20] At the conclusion of the preliminary hearing I concluded that there was some evidence upon which a properly instructed jury acting reasonably could find Mr. DeFreitas guilty of dangerous driving. However, Mr. DeFreitas has not been found guilty of dangerous driving. He has plead guilty to careless driving on the basis of an agreed statement of facts accepted by both parties.

[21] The Crown theory of liability at the preliminary hearing, that Mr. DeFreitas attempted to overtake rush hour traffic by driving northbound in the centre lane reserved for turning with the intention of crossing three lanes of traffic and turning right on Rivermede was relied upon by the Crown in the written submissions on sentence. However, Mr. DeFreitas did not plead guilty to dangerous driving and the agreed facts filed on the guilty plea do not reflect the Crown theory at the preliminary hearing.

[22] There is a spectrum of driving offences. At the lower end of the spectrum is careless driving, followed by dangerous driving, and then criminal negligence. Careless driving is a regulatory offence, whereas dangerous driving and criminal negligence are criminal offences. Convictions for the different offences reflect varying degrees of moral blameworthiness. The fault requirement for careless driving is less than that of dangerous driving.

[23] To establish dangerous driving the Crown must prove that the driving amounted to a marked departure from the standard of care of a reasonable driver in all of the circumstances. The trier of fact must be satisfied that, viewed objectively, the accused was driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to have been at that place".[1] While liability may be established on the basis of a modified objective test, the conduct must nonetheless be sufficiently morally blameworthy to attract criminal consequence. As noted by the Supreme Court of Canada in Roy, the fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.[2]

[24] In contrast, careless driving is a regulatory offence, not a criminal offence. To be proven it must be established that the accused person drove without due care and attention or without reasonable consideration for other persons using the road. Proof of the offence is based on a purely objective standard. Whether the driving is careless is dependent upon the acts or omissions of the driver, not the consequences. The moral blameworthiness associated with careless driving is less than that associated with dangerous driving.

[25] While proof of the offence is dependent upon the acts or omissions of the driver, not the consequences, where a death has occurred the fact that the offender's carelessness caused the death of another person is an important factor that the court must consider when determining the fit sentence. Where the consequences of careless driving are objectively foreseeable, they add to the moral culpability of the offender. While consideration of the tragic consequences will be important in determining a fit sentence, the sentence must also balance and reflect the degree of culpability or moral blameworthiness of the offender's actions and his personal circumstances.[3]

[26] Convictions for careless driving involve varying degrees of morally blameworthy conduct. I was provided with a number of authorities involving cases of careless driving where a death has occurred. The range of sentence for careless driving where a death has occurred varies from a suspended sentence and probation, to a fine and probation, to a period of custody of up to six months, together with driving suspensions of up to two years.

[27] In Messercola[4], the accused who plead guilty, struck and killed two pedestrians who were crossing in a marked crosswalk. Messercola was turning left at a busy intersection and failed to keep a proper lookout. The 48-year-old accused had no prior criminal or driving record. He was sentenced to a $1,000 fine, 18 months probation, and to an 18 months driving suspension.

[28] In Stupar the 50-year-old male offender was driving in a residential area where children would be expected to be. He approached an intersection while facing a red traffic light and failed to stop at a marked crosswalk, proceeding against the red light and striking a six-year-old child who was crossing in the marked crosswalk in accordance with the cross signal. The offender did not realize that he struck the child and drove another thirty meters after striking her. Mr. Stupar had no criminal record, and had a single conviction for speeding fifteen kilometers over the speed limit. Mr. Stupar entered a guilty plea and was extremely remorseful. He was diagnosed with depression and post traumatic stress disorder following the accident. He was sentenced to a $2,000 fine, a 2-year driving prohibition, and probation for 2 years including a requirement that he perform 200 hours of community service.

[29] In Pellerin[5] the twenty-five-year-old offender struck and killed a cyclist. He was convicted following a trial. He had twenty prior convictions for Highway Traffic Act matters, primarily speeding offences. The accident occurred because he was following the vehicle in front of him too closely, and as a result of a brief period of inattention. The court imposed the maximum fine of $1000, the maximum licence suspension of twenty-four months, and a period of probation for twenty-four months which included conditions that he not operate a motor vehicle, complete driver re-training course, and complete one hundred and twenty hours of community service work.

[30] In upholding the sentence on appeal, Justice LeDressay, of the Ontario Court of Justice found that non-custodial dispositions are within the range of sentences imposed for careless driving matters involving a fatality, stating as follows:

The totality of the case law, as I read it, indicates that a short period of incarceration is often imposed upon an offender who has been found guilty of a careless driving charge where a fatality is involved. However, the case law would also indicate that a period of institutional incarceration in those types of cases is not necessarily a required disposition and that significant non-custodial dispositions are also within the acceptable range depending on the totality of the circumstances presented to a court in each individual case.[6]

[31] In Martinez[7], the forty-one-year old first offender failed to stop for a stop sign and struck a vehicle that had the right of way, killing the driver. He plead guilty after a preliminary hearing. At trial the court imposed a ninety-day sentence and one-year probation. The length of the suspension is not referenced. On appeal, the Court of Appeal reduced the sentence to one of time served. The accused had served twenty days of the ninety-day sentence. The court found that the offence was at the lower end of the range in terms of moral blameworthiness.

Aggravating and Mitigating Factors

[32] In determining the appropriate sentence, I have taken into account both the mitigating and aggravating factors in this case. In terms of moral blameworthiness, I have concluded that the facts of this case fall within the lower to middle of the range for the offence of careless driving. The accident occurred in a busy urban area and Mr. DeFreitas was travelling at an unsafe speed approaching a large number of slowing and stopped vehicles. Given the volume of traffic it was reasonably foreseeable to any prudent driver that extra precaution was required approaching the intersection. It was careless for Mr. DeFreitas to approach the intersection in the manner he did and at the speed he did and to attempt to pass the slowing vehicle in front of him.

[33] However, Mr. DeFreitas's conduct did not involve the type of conduct sometimes present in aggravated cases of careless driving. Mr. DeFreitas's ability to drive was not affected by alcohol or drugs. The evidence did not establish that he was racing other vehicles or driving aggressively as a result of anger directed towards another driver. The bad driving occurred over a short period of time, and not over a long distance. This is not a case of protracted aggressive driving and the case did not involve an extended period of undue care and attention.

[34] The case does not involve the same level of moral blameworthiness as in Stupar[8], wherein the accused failed to keep a proper lookout or take the precautions necessary in an area where it was reasonably foreseeable that there would be children. Mr. Stupar disregarded a stop bar at a crosswalk, resulting in his striking a child, and after doing so he failed for some distance and time to recognize that he had struck the child.

[35] The key aggravating factor in this case is the tragic loss of Mr. Lloyd's life and the impact of that loss upon his family and on the community. Mr. Lloyd was only twenty-seven years old. He was a young father. He was married and his wife was expecting their second child. He was a co-worker of Mr. DeFreitas and Jason Rodgers, the second passenger in Mr. DeFreitas's vehicle. Unfortunately, I do not have the benefit of a victim impact statement to know more about Mr. Lloyd. However, no words and no sentence can adequately convey or communicate the significance of a life cut short and the loss of a father, husband, and friend. As a result of the accident on February 21, 2017, Mr. Lloyd lost his life and the lives of his family members have undoubtedly been changed forever. No sentence, punishment, or any other justice system response can quantify or rectify the loss that occurred as a result of the accident. I wish it could. I extend my sympathy to everyone affected by this horrible tragedy.

Mitigating Factors

[36] The mitigating factors include that Mr. DeFreitas has entered a guilty plea, and while the plea was not entered at an early stage, and only occurred following the completion of the preliminary hearing, Mr. DeFreitas plead guilty to a lesser offence than that he was originally charged with. He is entitled to the mitigating effect of the plea. Mr. DeFreitas has no prior criminal record or driving record. He has spent eleven days in pre-trial custody and was subject to a no driving condition for over two years. He has taken a driving course and has voluntarily performed twenty hours of community service. I accept that he is remorseful, and I also accept that the accident has had a significant impact upon his life as a result of his physical and emotional injuries.

[37] In all of the circumstances, I am satisfied, having regard to the eleven days Mr. DeFreitas spent in custody and the bail conditions that prohibited driving, that the appropriate disposition is a $1000 fine, probation for a period of 18 months, and an 18-month driving suspension. The probation will include a requirement that Mr. DeFreitas perform 50 hours of community service and attend counselling as directed by probation.

Released: Amended Written Reasons Released February 19, 2020

Signed: Justice Marcella Henschel