ONTARIO COURT OF JUSTICE DATE: 2021 03 04 COURT FILE No.: Newmarket 4911-998-20-07034
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ALEXANDRA FORRESTALL
Before: Justice E. Prutschi
Heard on: January 27, 2021 Reasons for sentence released on: March 4, 2021
Counsel: Brad Juriansz, counsel for the Crown Seth Weinstein, counsel for the accused Alexandra Forrestall
PRUTSCHI J.:
[1] Alexandra Forrestall plead guilty before me to failing to stop after an accident in a case of death pursuant to sections 320.16(1) and (3) of the Criminal Code. The penalty provisions are set out in s. 320.21.
320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of, (a) for a first offence, a fine of $1,000; (b) for a second offence, imprisonment for a term of 30 days; and (c) for each subsequent offence, imprisonment for a term of 120 days.
[2] It is indisputable that the circumstances of this case are a colossal tragedy that has utterly destroyed two extended families. Although I recognize that my decision today is entirely incapable of undoing the damage that has been done, I have nevertheless agonized over the construction of a fit and just sentence which can acknowledge the pain of the Tairoski family, and the denunciation this mandates, while fairly applying all the appropriate principles of sentencing to Ms. Forrestall.
[3] This sentence will likely attract criticism from all quarters. It will undoubtedly be viewed as too lenient for those who are, entirely understandably, still shattered, broken and angry from the loss of their beloved father, husband, sibling, family member, colleague and friend. It may be viewed as unnecessarily strict or lengthy for those who believe that Ms. Forrestall has already learned enough painful lessons through this court process. While it may not satisfy the interests of a particular party, my focus has been on ensuring it satisfies the interests of justice.
Factual Overview
[4] The parties filed an Agreed Statement of Facts setting out the key events of June 15, 2020. Ms. Forrestall was trained as an Early Childhood Educator but had been laid off from the daycare she worked at due to its closure in the face of the COVID-19 pandemic. She had secured part-time employment caring for the children of one of the daycare families. At about 8:22am she was driving her usual route to her babysitting job in Stouffville.
[5] At the same time Safet Tairoski was enjoying a morning bike ride in an area he frequented along Carlton Road. He was struck from behind by Ms. Forrestall suffering fatal injuries. The medical evidence suggested he was mortally wounded from the collision and beyond the help of medical assistance almost immediately.
[6] An expert accident reconstructionist concluded that environmental factors were at play in the collision. That point on Carlton Road has a curve and on that specific day and time, the sun would have been shining in Ms. Forrestall’s face obscuring the windshield of her car as she proceeded eastbound.
[7] Ms. Forrestall’s vehicle was badly damaged in the accident. She knew she had struck a person and, looking back in a mirror of her car, she thought Mr. Tairoski was dead. Nevertheless, she did not stop and remain at the scene nor offer any assistance.
[8] Instead, in a panicked state she described to forensic psychiatrist Dr. Jonathan Rootenberg as “zombie-like”, she continued to Tim Hortons approximately twenty minutes away. She was “shaking considerably and had difficulty focusing” and said she experienced herself “in a dream-like state, as though watching herself from above”.
[9] From there she drove to her babysitting job where she called her mother and concocted a story that her car had been hit by a truck in the Tim Hortons parking lot. Her mother inquired about possible video surveillance of the accident and Ms. Forrestall lied, saying that she had been informed by Tim Hortons staff that the restaurant’s video cameras were not working.
[10] She repeated these lies to her employer and then retreated to her vehicle where she called a collision reporting centre and disclosed the fabricated story. Around 9:30am her mother texted her the news that there had been a hit-and-run accident on Carlton which resulted in a fatality that morning. Ms. Forrestall expressed surprise to her mother that someone could have left the scene of that accident even though she knew that it was she herself who had fled that scene.
[11] She met a police officer who responded to her collision report where she repeated the lies about being struck in the Tim Hortons parking lot and that the surveillance cameras there were not functioning. She completed her workday and drove home where she again disclosed the phony story – this time to her insurance company.
[12] The next day she attended at an autobody shop to retrieve her car where she was met by police and arrested for several offences including failing to stop.
Position of the Parties
[13] Although there are minor differences at the periphery of the sentences respectively being proposed by each party, the only distinction of real significance is whether the custodial portion of the sentence should be served in jail or conditionally in the community.
[14] The Crown submits that the appropriate sentence is one of six to eight months in jail followed by two years probation, a three-year driving prohibition and a DNA order.
[15] Ms. Forrestall asserts that a five-month custodial disposition is appropriate but that this sentence should be served in the community under strict conditions followed by probation for two years and a one-year driving prohibition.
Factors Considered on Sentencing
Aggravating Factors
Loss of life
[16] The most serious aggravating circumstance here is the fact that Ms. Forrestall’s decision to leave the scene was made knowing full well that Mr. Tairoski had been grievously injured and possibly killed.
[17] The unfathomable harm of her actions was poignantly driven home by the long line of friends and family who paid tribute to Mr. Tairoski. In total, seventeen Victim Impact Statements were filed with the Court, nearly half of which were courageously read into the record by their authors.
[18] I want to thank his family and friends for providing me with this very personal glimpse of who Safet Tairoski was. He was not a traffic statistic or a name on a police report but an extraordinary human being who filled the lives of those around him with love and happiness. The day of the sentencing hearing would have been Mr. Tairoski’s 55th birthday – a day of celebration he shared with his son Michael who was also born on January 27.
[19] Amanda, Mr. Tairoski's daughter, expressed emotions understandably still very raw seven months after the accident and acknowledged the truism that, no matter what I do today, my sentence cannot unbreak her heart, heal her pain or fill the emptiness inside her.
[20] The words of Anna Tairoski, Mr. Tairoski’s widow, touched me deeply. She and Mr. Tairoski’s mother, Bilnas Tairoski, are clearly haunted by the questions of ‘what if’. What if Ms. Forrestall had stopped and attempted first-aid? What if Ms. Forrestall had simply called 911, hastening the arrival of paramedics? What if Ms. Forrestall had just been there to hold his hand and look in his eyes, providing some measure of human contact in his last moments? The evidence suggests that Mr. Tairoski died immediately from the impact with the vehicle and the ground. I hope this answer, though incapable of providing comfort, at least eases their nightmare.
The extent and length of the fabrication
[21] Ms. Forrestall knew the devastation caused by the accident when she chose to drive away. Her criminal conduct was not solely a spur-of-the-moment panicked decision but was followed by an extended downward spiral of lies and misinformation transmitted to her mother, her employer, her insurance company and – most egregiously – to police.
[22] This pattern of conduct had the effect of obstructing the police investigation and denying the public the ability to complete a fulsome inquiry into the circumstances of the accident.
Driving record
[23] Ms. Forrestall has three Highway Traffic Act convictions for speeding from 2017 to 2019. Though this has no bearing on the length or type of custodial term I impose, it does have some relevance in assessing the appropriate length of any driving prohibition.
Mitigating Factors
Plea of guilt and expression of remorse
[24] Ms. Forrestall was arrested on June 16, 2020 the day after the accident. She expressed an intention to accept responsibility by way of guilty plea almost immediately and, through her counsel, was already engaged in the judicial pre-trial process towards that end. Her plea of guilt at this early stage is a clear expression of remorse.
[25] Mr. Tairoski’s brother, Irfan, spoke of how the family patriarch had raised them all to “own up to their mistakes and learn from them.” To her credit, this is what Ms. Forrestall has now done by entering an early and unequivocal guilty plea.
[26] Throughout the sentencing hearing, it was readily apparent that Ms. Forrestall was experiencing deep regret and was emotionally overwhelmed by the enormity of her actions. When given the opportunity to speak to the Court prior to sentencing she directed her comments not to me, but to Mr. Tairoski’s family saying, “I wish I could trade places with him so his incredible life could be lived…I wouldn’t blame any one of you if you hated me forever.”
Youthful first offender
[27] Ms. Forrestall was twenty-five years old at the time of the accident and comes before this court as a youthful first offender. She completed two years of undergraduate work at Carleton University before completing her certification as an Early Childhood Educator at Seneca College.
[28] She has no prior criminal record, was active in a variety of community volunteer and philanthropic activities and was gainfully employed at the time of the offence.
[29] The principle of restraint requires that I consider all sentences apart from jail and order a jail sentence only if the other principles of sentencing cannot be adequately addressed by a different disposition.
Character references
[30] Thirty-three letters of support from family members, neighbours and friends were filed with the Court. While I cannot possibly do justice to the rich picture painted by these letters, a few recurring themes emerge.
[31] Ms. Forrestall is a young woman of extraordinary resilience who has demonstrated an ability to recover from previous traumas in her life. Her decision to leave the scene of the accident and subsequently lie about what transpired appear highly out of character with her otherwise deeply ingrained belief in right and wrong.
[32] Many writers commented that, while they were shocked to learn that Ms. Forrestall had committed this offence, none were surprised when she quickly made the decision to accept responsibility for her actions and plead guilty.
[33] The letter writers were unanimous in noting that Ms. Forrestall unreservedly recognized the wrongfulness of her actions and that her conduct has had a profound effect on her as a person. This impact was movingly encapsulated by the words of Patricia Forrestall, Ms. Forrestall’s aunt, who observed an air of “unspoken heartache in her identity” since the accident.
Psychiatric report
[34] Following her arrest, Ms. Forrestall was assessed at length by Dr. Jonathan Rootenberg, a forensic psychiatrist. Dr. Rootenberg’s report sheds light on Ms. Forrestall’s mental health both before and after the accident.
[35] Since her late teenaged years, Ms. Forrestall suffered from depression and was prescribed medication. In January 2020 further medication was prescribed to help address anxiety. Ms. Forrestall was also attending regular sessions with a psychotherapist to help deal with her depressive symptoms. She has a history of severe panic attacks.
[36] In May 2019 she was briefly hospitalized as she was experiencing extreme depressive symptoms including contemplating suicide. At the time of the accident, Ms. Forrestall was struggling to cope with the recent break-up of a long-term relationship and her layoff from work due to the pandemic. These stressors had exacerbated her pre-existing battle with depression and anxiety.
[37] The day after the accident when she was arrested, she became extremely distraught, smashing her head against the concrete wall of the cell multiple times. She returned to the hospital several days after her release expressing severe depression but was not admitted at that time.
[38] Shortly after the accident Ms. Forrestall experienced frequent suicidal thoughts and had to be monitored closely by her family to prevent self-harm. She was unable to sleep, undergoing nightmares about the accident and suffering flashbacks on an almost daily basis.
[39] Dr. Rootenberg’s opinion is that Ms. Forrestall suffers from features of Panic Disorder and Post-Traumatic Stress Disorder though she does not meet all the specific diagnostic criteria for these conditions. He does however definitively diagnose her with Unspecified Anxiety Disorder and Borderline Personality Disorder.
[40] Dr. Rootenberg describes Ms. Forrestall as “a young woman who is easily overwhelmed”. When circumstances overwhelm her, as they did in the moments after the accident, “she disconnects from the events around her” and struggled to reconcile what she had done, failing to psychologically accept the reality that she had struck and killed Mr. Tairoski. He offers this opinion as an explanation for her out-of-character conduct but not as an excuse.
[41] Dr. Rootenberg notes Ms. Forrestall’s sincere expressions of remorse and genuine sorrow at the devastation she has caused to the Tairoski family. In his opinion, if Ms. Forrestall continues to comply fully with her recommended medication and therapy, the prognosis for her future is very optimistic.
Collateral employment consequences
[42] Upon being charged the Canadian College of Educators, which serves as the self-regulating body for Early Childhood Educators, imposed an interim suspension of her license to practice. Ms. Forrestall has been advised that upon her conviction the College will move to complete the revocation of her license.
[43] The loss of employment and future loss of accredited licensing is a collateral consequence that I must consider in assessing the deterrent and denunciatory impact of my sentence. Ms. Forrestal worked for many years to earn the ability to work with children in a licensed childcare setting. All that hard work has been undone in seconds by her own hand.
Circumstances of the offence
[44] Though not strictly speaking a mitigating factor, it is important to remain cognizant of what precisely Ms. Forrestall is being sentenced for, and what she is not being sentenced for. In the face of such obvious and overpowering tragedy, there is the risk of losing sight of the scope of this sentencing.
[45] Ms. Forrestal is not being sentenced for causing Mr. Tairoski’s death. Nor is she being sentencing for denying Mr. Tairoski life-saving aid. The accepted evidence is that Mr. Tairoski was mortally wounded immediately upon impact and no amount of intervention would have changed that. There was no evidence of intoxication, impairment, excessive speed, bad driving or distracted driving.
[46] The criminal conduct that attracts punishment here is the depravity of knowing Mr. Tairoski was injured or dead at her accidental hand, yet not remaining on scene to provide aid if necessary or participate in the investigation.
Reasons for Sentence
Is a conditional sentence available in the circumstances?
[47] Both parties agree that the range of sentence appropriate in these circumstances is well within the scope of the conditional sentencing range. R. v. Oliveira, 2016 ONSC 120, contains a very helpful chart summarizing and reviewing sentences imposed in a variety of failure to stop cases where death ensued. Although these cases deal with a predecessor section and pre-date the ONCA’s decision in R. v. Sharma, 2020 ONCA 478, they serve to set a well-establish sentencing range for this type of offence from three to twelve months jail.
[48] Conditional sentences were introduced in 1995 as a tool to address the problem of over-incarceration. They are meant to be more punitive than a probation order but more effective than incarceration at balancing the various principles of sentencing in certain circumstances.
[49] In 2007 Parliament amended the conditional sentence regime removing them as an option in cases of “serious personal injury”. In 2011 this reference was deleted and replaced with an enumerated list of offences for which a conditional sentence is not available. Most recently the ONCA in Sharma ruled sections 742.1(c) and (e)(ii) of the Criminal Code unconstitutional and of no force and effect. These sections prohibited granting a conditional sentence in cases where the offence carried a maximum term of imprisonment of 14 years or more and in offences involving the import, export, trafficking or production of drugs.
[50] For the purposes of Ms. Forrestall’s sentence, the impact of Sharma is of great significance. Failing to stop in cases where death resulted is punishable by up to life imprisonment by virtue of section 320.21. Were it not for Sharma’s elimination of section 742.1(c), a conditional sentence would be prohibited.
[51] The Crown argues that Sharma did not affect section 742.1(e)(i) which bars the granting of a conditional sentence for offences prosecuted by way of indictment with a maximum term of imprisonment of 10 years that “resulted in bodily harm”.
[52] The plain reading of “resulted in bodily harm” would seem to have no application to cases of failing to stop in situations where bodily harm ensued as the consequence of “bodily harm” was not a “result” of the offender’s actions. The conduct being criminalized in the section is not the bodily harm suffered by the victim but rather the act of leaving the scene knowing that such harm has been suffered.
[53] The Crown however urges me to draw support from section 752 which defines “serious personal injury offence” in (a)(ii) as “conduct endangering or likely to endanger the life or safety of another person”. These definitions appear within PART XXIV of the Criminal Code dealing with dangerous and long-term offenders. Designated offences for the purposes of this Part include, per subsection (xxiii.7), the offence of failing to stop in section 320.16.
[54] The Supreme Court of Canada in R. v. Steele 2014 SCC 61, [2014] S.C.J. 61 considered the scope of the definition of “serious personal injury offence” in the context of a robbery where the accused used the threat of violence – but no actual physical violence – to rob drugstore cashiers by telling them he had a gun, even though that was not the case. At paragraphs 58 and 59, the court notes that offences involving negligence, including dangerous operation of a vehicle causing bodily harm, are properly included as “serious personal injury offences”. The court states that, “whether an offence is likely to result in bodily harm is really a question of whether the offence is dangerous rather than whether it is violent, and these two concepts are distinct from one another.”
[55] Following that reasoning, the Crown argues that failing to stop at the scene of an accident knowing that someone may be seriously injured exposes that injured person to further danger by not ensuring that they receive prompt medical attention.
[56] Though I agree that, in certain cases of failure to stop, the offender’s neglect might expose the victim to further harm over and above what was caused by the accident itself, I find that this approach would dramatically over-broaden the scope of serious personal injury offences. If every offence that carries a hypothetical risk of danger is a serious personal injury offence, offences such as impaired or dangerous driving – even where no bodily harm results – would have to be included, as it is indisputable that such activities carry the real risk of danger.
[57] Parliament’s use of the words “ resulted in bodily harm” [emphasis added] in section 742.1(e)(i) connotes a direct connection between the actions of the offender and the infliction of bodily harm. This is a notable difference between the more generalized words of “serious bodily harm” in the definitional language of section 752. Steele dealt with the section 752 definition and not with the more recently amended language that now appears in section 742.1(e)(i). Moreover, in Steele the offender’s statement that he had a gun was an unequivocal threat levelled during a robbery. His words were a clear intimation of violence uttered with the intention of causing fear in the cashiers thereby convincing them to agree to his demands. This is not reasonably comparable to the hypothetical danger created by an offender’s unlawful decision to fail to stop at the scene of an accident.
[58] The Crown urges an expansive reading of section 742.1(e)(i) to make it consistent with section 752 and the language of Steele. However, in my view, where the liberty of an offender is at stake, the language of the exclusionary rules in section 742.1 should be read narrowly to ensure that conditional sentences remain an available option except where Parliament expressed a clear intention to preclude them.
[59] Moreover, applying Sharma in the manner the Crown proposes risks creating some bizarre and untenable scenarios. Strictly limiting Sharma’s application to the narrow confines of 742.1(e)(ii) would create a scenario where the offence of aggravated assault – punishable by a maximum penalty of 14 years – would be eligible for a conditional sentence but assault causing bodily harm – punishable by only a 10 year maximum – would be ineligible. A fair and principled reading of Sharma demands that all of section 742.(1)(e) be encompassed by its reasoning.
Is a conditional sentence appropriate in the circumstances?
[60] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing fair sanctions in all of the circumstances. A fair sentence must proportionally balance the gravity of the offence with the offender’s degree of responsibility and moral blameworthiness. This engages consideration of general and specific deterrence, rehabilitation, denunciation, and protection of the public. A fair sentence will promote a sense of responsibility in the offender and cause her to acknowledge the harm done to the victims and the broader community.
[61] Both parties agree that the primary sentencing principles engaged in this case are those of general deterrence and denunciation. Having found that, in light of Sharma, a conditional sentence remains a lawfully available sentence, I turn now to the question of whether it is appropriate in the specific circumstances of this case.
[62] The maximum penalty of life imprisonment for failing to stop in cases where death ensued speaks to how seriously Parliament treats this offence placing it in the same sentencing category as dangerous driving causing death and impaired driving causing death. However, the range of available sentences is extraordinarily broad with the minimum penalty on a first offence being only a $1000 fine.
[63] Section 320.22 lists a series of aggravating factors that are to be specifically considered for offences under sections 320.13 to 320.18. None of those factors are present here.
[64] Both parties submit the appropriate sentence is a term in the range of five to eight months. A review of recent sentences for similar circumstances suggests a range anywhere between five and twelve months. Thus, the sentence clearly falls within the two years less a day required for conditional sentence eligibility.
[65] It is well established since R. v. Proulx, 2000 SCC 5, that a properly structured conditional sentence can address denunciation and general deterrence. In assessing the ability of a conditional sentence to satisfy these principles, the totality of the sentence – including features outside the conditional sentence itself such as the length and nature of probation, the imposition of prohibitions and ancillary orders, and collateral consequences – must all be considered.
COVID-19 Considerations
[66] In addition to balancing the aggravating and mitigating factors I have previously discussed, I must address the unique circumstances of the ongoing COVID-19 public health pandemic. The Crown filed an “Information Note” outlining the ongoing efforts of custodial institutions to manage the elevated risks for COVID-19 in the congregant setting of a jail.
[67] Ms. Forrestal filed a letter from her family doctor which noted that, as an asthma sufferer reliant on puffers, she is in a “higher risk category for COVID-19 infection” and recommends that she be afforded “appropriate protections” including social distancing to minimize the risk of exposure. Social distancing is largely impossible in a jail setting where inmates are often assigned multiple cellmates and regularly come in close contact with a high number of both inmates and staff. While I recognize the extraordinary efforts of the correctional service to take appropriate infection control measures, there can be no doubt that jail poses an elevated risk when compared to self-isolation in a house arrest scenario.
[68] Proportionality remains the fundamental plank upon which all sentences rests. The troubling reality of COVID-19 must factor into the balance when crafting a sentence that is neither too lenient nor too harsh. However, COVID considerations cannot serve to justify the imposition of an otherwise unfit sentence.
The Sentence
[69] Having carefully considered all the principles of sentencing and balanced the many factors at play, Ms. Forrestall is sentenced as follows:
[70] 12 months custody to be served conditionally in the community.
- Keep the peace and be of good behaviour;
- Appear before the court when required to do so;
- Report to your conditional sentence supervisor by phone within 72 hours and thereafter as required;
- Remain within the Province of Ontario unless written permission to do so is obtained from either the court or your supervisor;
- Reside at an address approved of by your supervisor and not change that address without obtaining the consent of your supervisor in advance;
- Notify your supervisor in advance of any change of name, address, employment or occupation;
- Abstain from communicating directly or indirectly with any of the persons who filed Victim Impact Statements in this case unless the person gives their advance consent in writing to your supervisor;
- For the first six months of this Conditional Sentence Order you are to be confined to your home at all times EXCEPT:
- once weekly for a four-hour period to acquire the necessities of life;
- for medical emergencies involving you or any member of your immediate family;
- for going directly to and from any personal medical or dental appointments;
- for going directly to and from any community service hours approved in advance by your supervisor; and
- for carrying out any legal obligations regarding compliance with this Order.
- For the remaining six months of this Conditional Sentence Order you are to be confined to your home at all times between the hours of 9:00pm and 6:00am EXCEPT:
- For medical emergencies involving you or any member of your immediate family.
- During the entirety of your Conditional Sentence Order you are not to permit any visitors to your residence with the exception of those currently residing in the home as of today’s date and you are to present yourself at the doorway of your home upon request by your supervisor or a peace officer for the purposes of verifying compliance with these home confinement conditions;
- Continue your existing counselling for depression and anxiety as directed by your supervisor and sign all releases necessary to allow you Supervisor to monitor your compliance with this condition;
- Complete 100 hours of community service to the satisfaction of your supervisor before the expiration of this Conditional Sentence Order;
- You are not to operate a motor vehicle for any reason for the life of this Conditional Sentence Order.
[71] Commencing at the conclusion of your Conditional Sentence Order you are subject to the following Probation Order for a period of two years:
- Keep the peace and be of good behaviour;
- Appear before the court when required to do so;
- Notify your probation officer in advance of any change of name, address, employment or occupation;
- Report to your probation officer by phone within 72 hours of the completion of your Conditional Sentence and thereafter as required;
- Abstain from communicating directly or indirectly with any of the persons who filed Victim Impact Statements in this case unless the person gives their advance consent in writing to your Probation Officer;
- Continue counselling for depression and anxiety as directed by your Probation Officer and sign all releases necessary to allow your Probation Officer to monitor your compliance with this condition;
- Seek and maintain employment or education; and
- You are not to operate a motor vehicle at any time during the life of this Probation Order.
[72] Effective immediately, you are prohibited from operating a motor vehicle anywhere in Canada for a period of three years.
[73] As you have been convicted of a secondary designated offence, you are ordered to provide a suitable sample of your DNA for registration in the DNA databank. This order involves a minimally invasive procedure and is warranted in the circumstances in light of your failure to stop at the scene of the accident.
[74] In a moment I will hear submissions from both counsel on any minor modifications that might be necessary to the conditions described above. I want to thank both counsel for their thoughtful and respectful approach to a most emotional and difficult case. Finally, I want to thank the families of both Mr. Tairoski and Ms. Forrestall who, through no fault of their own, have endured this heart wrenching court process with grace and dignity.
Released: March 4, 2021 Signed: Justice Edward Prutschi