Court File and Parties

DATE: May 26, 2023 Court File: 1160 999 21 0109 00 Ontario Court of Justice

Between

His Majesty the King

and

Trevor Henry

Before Justice of the Peace St. Peter

Heard: March 24, 2023 Judgment: May 26, 2023

Counsel

D. Paquette for the Defendant Trevor Henry C. Rogers, for the Crown

Decision on Sentence

S. St. Peter, J.P.

Introduction

[1] Trevor Henry (the defendant) was charged on July 23, 2021, with careless driving causing death, contrary to s. 130(3) of the Highway Traffic Act and careless driving causing bodily harm contrary to s. 130(3) of the Highway Traffic Act. Mr. Henry pled guilty to both counts before me on March 24, 2023. The agreed statement of facts supported a conviction for both offences before the court, that Mr. Henry was driving a motor vehicle on a highway without due care and attention and as a result caused the death of Nancy Fleming and bodily harm to William Fleming. These reasons address the penalty for conviction of both offences under the Highway Traffic Act of Ontario.

The Offence

[2] An Agreed Statement of Facts indicate that on July 23, 2021 at approximately 11:54 a.m. the Ontario Provincial Police received a call for service for a fatal motor vehicle collision on Haldimand Road 32, near Concession 2 Road South in Haldimand County.

[3] Upon police arrival, they determined that Trevor Henry, being the driver of a 2009 Chevrolet Tahoe was travelling northbound on Haldimand Road 32 and crossed into the southbound lane at which time William Fleming was driving a 2016 Ford Fusion southbound. Nancy Fleming was the front passenger in the Ford Fusion.

[4] William Fleming observed the Chevrolet Tahoe driving in his (southbound) lane of travel and he then tried to avoid a collision by heading his Fusion into the northbound lane. Trevor Henry then steered back into the northbound lane which resulted in a broadside collision with the passenger side of the Ford Fusion.

[5] As a result of the collision, Nancy Fleming died at the scene and William Fleming sustained life altering injuries including: subarachnoid hemorrhage, right femur ankle fractures, epistaxis, right orbital fracture, left internal iliac aneurysm, right internal carotid artery aneurysm and pulmonary fibrosis with interstitial pneumonia and diabetes mellitus.

[6] Haldimand Road 32 in this area is a 2-lane county road running north and south in a rural area. The lanes are marked by a dashed, single, yellow centre line. The roadway has an asphalt surface reported to be in good condition with wide groomed, gravel shoulders which dropped off to drainage ditches on both the east and west side. The roadway is straight and level with no view obstructions.

Position of the Parties

[7] The Crown seeks a global sentence of 90-day continuous period of incarceration, a 2-year probation period including the statutory terms and up to 100 hours of community service; and a 2-year driver’s licence suspension. The Crown submits this is a fit sentence given the facts of this case, and the intention of parliament in relation to the amendments to the Highway Traffic Act careless driving offence and penalty provisions and review of the case law involving careless driving causing death and bodily harm. They further contend that the aggravating factors of multiple convictions for failure to comply with court orders on his criminal record in addition to a conviction for flight from police support their submission that Mr. Henry is not a suitable candidate for this type of sentence.

[8] The defence submits that appropriate to the circumstances in this matter, the shortest period of incarceration is necessary to achieve the principles of sentencing. Defence submits that a 45 day period of incarceration to be served intermittently, together with a 1-2 year driver’s licence suspension balances the objectives of sentencing. Defence argues that Mr. Henry’s criminal record is not as aggravating as it would appear on its face, given the flight from police and failure to comply convictions occurred over 10 years ago. The defence further submits that Mr. Henry has emerged from an earlier life of crime and has become a stable and contributing member of community as evidenced in the presentence report and the support letters provided.

[9] Before I continue, I wish to direct my comments to the family of the victims Nancy and William Fleming.

[10] The court does not exist in a vacuum, and I cannot ignore the fact that this family has experienced an immeasurable loss, that of their mother, grandmother, and wife. I acknowledge how painful it must be for the family to continue their respective lives without their loved one and to be reminded daily of their loss. I further acknowledge how challenging and difficult it must be for the family to have become a caregiver to Mr. Fleming who suffered serious physical impairments because of the collision. There is no sentence this court can impose that will adequately address the life-changing impact to the family.

[11] I have received victim impact statements by family members of William and Nancy Fleming. Charlene Fleming, daughter in law, on behalf of the victim’s son Adam Fleming describes the extent of their loss and states:

”mom was taken from us, a grandmother our family rock gone”.

[12] Reid and William, grandsons ages 11 and 12 report:

“I have a hard time falling asleep because my head thinks of my grandma and how sad my grandad and mom are”. “My mom cries a lot. I hate to see her cry. She must take time away from me to care for my grandad and that is not fair. She is all that I have. I have to hug my mom to comfort her, and she comforts me”.

It is evident that Mr. and Mrs. Fleming were the foundation and stabilizing force within the family and their loss has had an emotionally devastating impact on the lives of the family.

[13] Marie Oliver, daughter of Mr. and Mrs. Fleming, describes not only the emotional impacts of the collision but also the challenging and practical realities as it relates to her father who has sustained significant life altering physical and cognitive impairments which require ongoing daily care and support.

The Offender

[14] A pre-sentence has proved helpful in understanding Mr. Henry’s background.

[15] Trevor Henry is 36 years of age at time of sentencing. On the date of the offence, he was 34 years old. He is single and a father to 4 children. He had a challenging childhood, having never met his biological father and was a witness to the effects of alcohol abuse within the family during his formative years. His mother is a strong support in his life as well as his maternal grandparents.

[16] The court received 5 support letters from family members, counsellors and his current employer. It is evident that both his mother and his maternal grandparents continue their support for Mr. Henry and have detailed some of the psychological and emotional impacts the offences have had on him. Family Services of Perth-Huron have offered to connect Mr. Henry with counselling and his current employer Listowel Technologies remains open to continue his employment contingent upon the features of the particular sentence imposed.

[17] Mr. Henry completed his grade 12 education and has a sporadic employment history as he spent periods of time before the criminal courts for offences which are not cognate to the offences in this case.

[18] At the time of the collision, Mr. Henry was a properly licensed driver. His driving record is unremarkable. At the time of the offence, he had been licensed for 2 years and 2 months and had the following convictions on his driving record:

2003-06-18 permit/drive snow vehicle no insurance 2006-01-16 drive no licence/improper class licence 2007-06-20 no number plate on vehicle 2013-07-03 fail to stop for police officer

He has not had a driving related conviction since 2013.

The Law

[19] When it comes to careless driving causing bodily harm and/or death, I am limited by the penalty provisions under s.130(4) of the Highway Traffic Act:

On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years.

[20] This proceeding takes place in the context of a guilty plea to a regulatory offence, not a criminal offence. The court must examine the case in the context of the guilty plea and impose a sentence that is appropriate and fit under the regulatory scheme.

[21] Sentencing under provincial regulatory legislation is guided by 3 fundamental principles: deterrence, proportionality and restraint.

[22] Deterrence as it relates to offences under the Highway Traffic Act reflects the need to both specifically and generally discourage persons from driving behaviors that negatively impact the safety of those using the roadways, as either pedestrians, passengers or drivers. The Highway Traffic Act exists to ensure that the roadways can be used safely by all.

[23] The Highway Traffic Act was amended in 2018 to include s. 130(3) careless causing death and/or bodily harm and associated sentencing provisions of s. 130(4). These were intended to send a message that driving carelessly could result in significant penalties should the consequences cause death or bodily harm.

[24] In the first session of legislative debate in Hansard (Legislative Assembly of Ontario- Hansard- June 9, 2016, 41st Parliament, 1st Session) with respect to Bill 213- An Act to Amend the Highway Traffic Act:

Ultimately, the goal is to have penalties in place that discourage careless driving and encourage good choice behind the wheel. But we will also use this opportunity to help promote public awareness of the threat posed by motor vehicles in the hands of the wrong person.

With Bill 213, both our officers and courts will have the opportunity to send that very clear signal that driving with due care and attention matters.

[25] The principle of proportionality means that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The 2018 amendments of the Highway Traffic Act to include escalated penalties for driving without due care and attention reflect the seriousness and often catastrophic consequences of such driving conduct.

[26] It is important to remind myself that it is the conduct of driving without due care and attention that is the focus of sentencing. In R v Grosse, 2017 ONCJ 228:

However, it is not the consequences that is the focus of the sentence rather, it is the driving conduct itself, lack of due care and attention, along with other mitigating and aggravating factors being taken into consideration (at para 7).

[27] Finally, the principle of restraint guides all sentencing in both Criminal Code and regulatory statutes. I am alive to the need for restraint and that the sentence imposed is not to be more than is required in the particular circumstances having regard to the relevant factors.

[28] To assist with sentencing, the court was provided with several exhibits:

a. Pre-sentence report (Mr. Henry) b. Victim impact statements c. Support letters for Mr. Henry d. Ministry of Transportation Driving Record of Mr. Henry e. Criminal Record of Mr. Henry

Factors in Sentencing

[29] The guilty plea is a mitigating factor. It demonstrates responsibility taken by Mr. Henry and the agreed statement of facts reflects an admission that his actions lacked the due care and attention required of all drivers using the roadways in Ontario.

[30] Driving without due care and attention by definition does not presuppose wilful misconduct or acts of reckless or intentional dangerous driving. I rely on the agreed statement of facts to support the convictions of careless driving causing death and bodily harm and it offers very little in the form of aggravating or mitigating factors.

[31] Furthermore, Mr. Henry, has expressed remorse for the events that occurred on July 23, 2021, albeit indirectly through is counsel. His counsel indicated that he has voluntarily chosen not to drive a motor vehicle since the incident occurred, a period of almost 2 years.

[32] The criminal record of Mr. Henry has numerous entries beginning as a youth in 2001 and through until October of 2020 with a 6-year gap from 2014-2020. However, there are no convictions within the criminal record that reflect driving offences or offences similar to that before the court today. While the Crown considers the multiple failure to comply with court order convictions as well as flight from police conviction as an aggravating factor as it relates to the suitability of Mr. Henry to serve an intermittent sentence, I draw little to no nexus between the criminal record and the facts of this case, and I can therefore conclude that the criminal record is neither mitigating or aggravating in these circumstances.

[33] Mr. Henry’s driving record is dated with his last conviction in July of 2013. He has 4 convictions, none which are similar to the offences before the court today. I conclude that his driving record is a neutral factor on sentencing as he has no previous convictions for careless driving or similar offences and has no further convictions since 2013.

[34] I find the following aggravating factor to be present in consideration of sentencing:

The consequences of driving carelessly has caused the death of Nancy Fleming and significant bodily harm to William Fleming. The devastating impact this collision has had on the family, including the grandchildren is immeasurable. The physical and cognitive injuries sustained by William Fleming require expensive and ongoing medical care and daily living supports. The family continues to experience the impact of the loss of their mother and grandmother on a daily basis as well as the life-altering changes to the quality of life of their father and grandfather.

[35] The parties submitted several sentencing decisions for my consideration. A review of these cases and others suggest a variable range of sentences for careless driving causing death and/or bodily harm. I am mindful that the offences before the court today are regulatory offences and not criminal offences. I am to impose a sentence that in the totality of the circumstances is both fit and proportionate to the gravity of the offence. In a similar case of R v Miller (2023 ONCJ 77 at para 105) the court said:

It is therefore necessary to re-emphasize a critical point. The sentence imposed by the Court in this case cannot be seen in any way to represent the valuation of the remarkable life that has been lost. (para 105).

The real difficulty in this sentencing is obvious: Objectively, Ms. Miller was not close to being the worst offender. Although the outcome of the driving conduct was completely devastating, the conduct that gave rise to that outcome cannot be described as the worst offence. Having said that, the driving conduct here was bad. It must be denounced, and future motorists must be deterred. The proportionality analysis, and hence the sentence, reflect this reality. (para 106).

[36] It is impossible for this court to compensate the Fleming family for their loss and the significant injuries incurred as a result of the offences. However, the driving conduct here is what is to be denounced.

Parity in Sentencing

[37] The range of penalties indicated by case law for offences of careless driving causing death and/or bodily harm suggest a period of incarceration. The parity principle requires consistency in penalties imposed to the extent that similar sentences be imposed for similar offences committed by similar offender in similar circumstances R v. C.A.M., [1996] 105 C.C.C. (3d) 327 (S.C.C.)

[38] The parity principle does not require that the sentences given to person who commit the same crime be the same but rather the principle stands for the proposition that the differences be understandable. R v. Choquette, 2010 ONCA 327, [2010] ONCA 327, [2010] O.J. No. 1851 (Ont C.A.)

[39] The case of R v. Laycock [1996] O.J. No. 3846, was an appeal against conviction for careless driving which caused the death of a cyclist in the Township of Rama. She was sentenced to a period of incarceration of 60 days and a driver’s licence suspension for 1 year. On appeal, the court held that the penalty was within the appropriate range and was not unreasonable given the serious consequences of the appellant’s carelessness. The circumstances were somewhat similar to this case, involving a driver on a two-lane highway with gravel shoulders on a clear, dry day who failed to use due care and attention and struck another roadway user. However, in this case the victim was a cyclist, a vulnerable road user which is now considered under s. 130(6) of the HTA as an aggravating factor in sentencing.

[40] In R. v. Martinez [1996] O.J. No. 544, the Ontario Court of Appeal allowed a sentence appeal and reduced the period of incarceration from 90 days to 20 days and upheld the 1-year period of probation. Mr. Martinez drove through a stop sign at an intersection and the driver of the oncoming vehicle died as a result of the collision. The defendant was presented as a law abiding and responsible citizen having no criminal or driving record. His simple inadvertence and distraction caused the death of the victim and upon appeal the court found he was ‘at the opposite end of the spectrum from the worst offender in the context of careless driving’ (para 12) and reduced his sentence to 20 days.

[41] In the case of R v Ballard [2020 ONCJ unreported], the defendant Gregory Ballard pled guilty to careless driving which caused the death of an elderly man crossing on foot at an unlit crosswalk. The defendant was charged under s. 130(1) of the HTA prior to the 2018 amendment that now includes s. 130(3) and 130(4) offence of careless driving causing bodily harm or death and associated penalty provisions.

[42] The victim was crossing the street and was struck by the minivan driven by Mr. Ballard. The elderly pedestrian died as a result of his injuries. The road conditions were dry and the event occurred in the evening. There were limited aggravating factors and the joint submission on sentencing included 90 days imprisonment served intermittently, 12 months’ probation and 12-month driver’s license suspension. The sentence of incarceration was ordered to be served intermittently to allow Mr. Ballard to keep his livelihood as a taxicab company owner. In the Ballard case, the victim was what is now considered to be a vulnerable road user under s. 130(6)(a pedestrian), which is not the case in the matter before me.

[43] In R v Miller, supra the facts included texting while driving and the death of a vulnerable road user, a cyclist in a construction zone. Ms. Miller had limited driving convictions, no criminal record and was an upstanding member of the community. The position of the parties on sentencing was not a joint submission. Upon pleading guilty, the court imposed a sentence of 45 days in jail and 2-year driver’s license suspension.

[44] In the recent sentencing decision R v Watson, 2023 ONCJ 50, the defendant was sentenced to 45 days imprisonment and a driver’s license suspension for 4 years upon conviction for careless driving causing death. He was also convicted of careless driving and the court imposed a period of incarceration of 30 days to be served concurrently with count one. In this case, the 2 victims were determined to be vulnerable road users by virtue of their use of walkers. They were both struck by Mr. Watson just after he left an intersection. One of them was killed as a result. Mitigating factors on sentencing included Mr. Watson’s ill health and his inability to drive as a result of medical conditions incurred after the collision. Other factors considered were the finding that the victims were crossing the road at a location not authorized for pedestrian crossing. There were limited aggravating factors in this case.

Intermittent Sentences

[45] The defence offered the cases of R v Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674 and R v Burill [2022] O.J. No. 2696 to guide the sentencing analysis as it relates to intermittent sentencing. In R v Middleton, the Supreme Court of Canada commented on the use of intermittent sentences:

Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of ‘real jail time’ and the rehabilitative functions of preserving the offender’s employment, family relationships and responsibilities and obligations to the community’ (para 45).

The defence submits that the most appropriate and fit sentence in the circumstances of this case would involve a period of incarceration, specifically 45 days to be served intermittently. A letter from Mr. Henry’s current employer indicates that he will be able to maintain his employment at Listowel Technologies should the sentence imposed fit within their current policies in relation to leaves of absence. The pre-sentence report indicates that while Mr. Henry has had a sporadic and limited employment record, he has been employed for the last 7 or 8 months, although is currently on leave to manage and adjust to changes in his medication regime. He is expected to return to work within 3-4 weeks of the date of the report.

I am satisfied that an intermittent sentence serves the ends of justice by balancing denunciation, deterrence, the principles of rehabilitation and restraint, while permitting the defendant to contribute to society through continued employment.

Sentence

[46] Having considered the driving conduct itself, namely the lack of due care and attention together with mitigating and aggravating factors in this case and the principles of sentencing, I agree with the parties that a sentence of incarceration is the only fit sentence in the circumstances, and recognizes the gravity of the offences.

[47] A review of the authorities noted earlier suggests a penalty in the range of 45-90 days incarceration, however I note the circumstances of this case are different. There are limited aggravating factors in this matter and several of the cases brought to my attention involve vulnerable road users that meet the criteria established under s. 130(6), unlike the case before me. That is not to say that the real and ever-lasting impact of the loss of a loved one, who by all accounts was the ‘rock of the family’ is overlooked by this fact. There is no sentence that will fully and adequately address the incalculable heartbreak experienced by the victims’ family and community.

[48] Drivers of motor vehicles must understand their responsibilities and that their sustained attention at the wheel is required to ensure safe roadways for all users. Anything less than continuous focus on the road could result in catastrophic consequences.

[49] Mr. Henry can you please stand? A fit and appropriate global sentence ordered in this case is a period of 45 days imprisonment to be served intermittently. Further, there will be a 2-year non-reporting probation order with the statutory terms which are: that you attend court when and as required; that you not commit the same or similar offence and that you will notify the court of any change in your address.

[50] A term related to the intermittent sentence will also be included in the probation order: You must appear at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance pursuant to a lawfully obtained prescription. I include this term of the probation order as a standard term as required by the local probation office and not in reflection of any facts or circumstances of this case. Community service hours will not be ordered as part of your probation order.

[51] The court also orders that your driver’s licence will be suspended for a period of 2 years beginning today.

[52] In my view, this penalty addresses both specific and general deterrence, appropriately balances both aggravating and mitigating factors and is within the range imposed for similar offences.

[53] I am also satisfied that this penalty appropriately addresses both counts in totality, therefore the penalty for count 2, careless driving causing bodily harm is suspended.

[54] Mr. Henry is to surrender his driver’s licence to the court today.

[55] Mr. Henry will be taken into custody today to be processed at the HWDC and released and thereafter 45 days in jail to be served intermittently on weekends between the hours of 8 pm on Fridays and 6 am Monday. You must present yourself to the institution to begin serving your sentence on Friday, June 2, 2023 and each weekend thereafter until the expiration of the sentence.

Released Friday, May 26, 2023 in Haldimand County, Ontario

Justice of the Peace S. St. Peter