Ontario Court of Justice

Date: August 28, 2023

Between: His Majesty the King — And — Kurlan Cadet

Before: Justice B. Green

Reasons for Sentence Released Electronically: August 25, 2023 Sentence Rendered: August 28, 2023

Amended Reasons

Counsel: Mr. David Parke, for the Crown Mr. Rudi Covre, for Mr. Cadet

Green J.:

A. Introduction

[1] This is, sadly, yet another case where a Court must decide the appropriate sentence for an otherwise decent, law-abiding citizen who committed the crime of driving a motor vehicle while under the influence of an intoxicant. This irresponsible choice resulted in tragic, life altering consequences. No matter how many times impaired drivers or drivers operating a vehicle in excess of the legal limits of intoxicants are sent to jail, for lengthy periods of time, the public still doesn’t seem to be getting the message that these are remarkably serious crimes for which the penalties must be severe.

[2] These cases incite passionate submissions from the advocates about the appropriate penalty because of diametrically opposing perspectives. The crown forcefully urged me to consider the aggravating features of the offence and the overwhelming need for a sentence that unequivocally denounces and deters impaired driving offences in the hope that it will prevent more tragedies associated with these crimes. Counsel persuasively focussed on the undeniably mitigating circumstances of the offender and the collateral consequences of these offences. A young man, a father, who has no record and a plethora of character references. Mr. Cadet’s life has already been permanently impacted due to his own poor choices on the day of these offences.

[3] The crown sought a sentence of two years incarceration and a lengthy driving prohibition. His submissions emphasized the public interest in an exemplary sentence. In contrast, counsel sought a conditional sentence of eighteen months duration and a three-year driving prohibition. Both lawyers agreed that I should deduct the time that Mr. Cadet has spent subject to judicial interim release conditions prohibiting him from driving from the ultimate prohibition order: R. v. Basque, 2023 SCC 18.

[4] A just sentence balances both the circumstances of the offence and the circumstances of the offender as opposed to unduly focusing on one or the other. It is guided by the applicable principles of sentencing, proportionality, parity and ultimately fairness. For the reasons that follow, I have decided that neither of the advocates’ positions adequately balance the aggravating and mitigating factors. I have crafted a sentence that is punitive but not crushing and seeks to achieve restorative justice for one of the victims, Mr. Cadet’s 12-year-old son.

B. Facts

i. History of the case and circumstances of the offences

[5] Mr. Cadet was initially self-represented. He eventually retained a lawyer for the Charter argument. After I ruled that the evidence of the analyses of Mr. Cadet’s blood was admissible, Mr. Cadet subsequently retained another lawyer. Mr. Covre was counsel for the rest of the trial, the pleas of guilty and sentencing hearing.

[6] The trial commenced with the evidence of one witness, a civilian bystander. However, with Mr. Covre’s advice and guidance, Mr. Cadet decided to enter pleas of guilty before further evidence was called. As a result, the victims of these offences did not have to testify in court which is a mitigating fact.

[7] Mr. Cadet entered pleas of guilty to two counts of committing offences contrary to section 320.14(1)(c) of the Criminal Code by having, within two hours of ceasing to operate a motor vehicle, a blood-drug concentration that exceeded the legal limit proscribed by regulation, and while operating the vehicle he caused bodily harm to both Kaiden Cadet-Darling and Phong Pham. The crown elected to proceed summarily on both counts.

[8] Mr. Cadet admitted that:

On June 13th, 2020, at approximately 7:45 p.m., Mr. Cadet was operating a BMW northbound on Brock Road in Pickering. Given the time of year, it was a clear, warm, and still sunny evening.

In this area, Brock Road is a 6-lane road with 3 northbound and 3 southbound lanes. To the east is a large suburban commercial shopping plaza and parking lot. To the west is a suburban, residential neighborhood. The speed limit is 60 km/hr.

The intersection of Brock Road and Pickering Parkway is at the south-west corner of this commercial parking lot. It is controlled by a traffic light. North of Pickering Parkway is an entrance into the parking lot that is also controlled by a traffic light. There is a left turn lane permitting southbound traffic to turn into the parking lot.

As Mr. Cadet was driving north on Brock Road, prior to Pickering Parkway, he was driving near Colin Lymer who was operating a Nissan. Both Mr. Cadet and Mr. Lymer began speeding, driving close to each other and accelerating at approximately the same rate. By the time they passed Pickering Parkway, approaching the entrance to the parking lot, they were both travelling unreasonably quickly compared to the regular rate of traffic in the area.

Mona Boni was operating a white vehicle southbound on Brock Road. She was at the traffic light for the intersection into the plaza parking lot. She had come to a complete stop for several seconds, waiting in the left turn lane for traffic to clear before turning left into the parking lot. She looked ahead and, believing the way to be clear, not expecting speeding vehicles, she began to turn into the parking lot. Police reconstruction data showed that she accelerated to approximately 15 km/hr as she turned into the plaza.

Mr. Cadet and Mr. Lymer came upon Ms. Boni as she was turning. Mr. Cadet was in the right-hand lane, and, at this point, he was ahead of Mr. Lymer. He attempted to brake but given the circumstances he was unable to avoid striking Ms. Boni’s vehicle. Mr. Lymer, driving slightly behind, slammed on his brakes and skidded through the collision site just after Mr. Cadet struck Ms. Boni. Mr. Lymer avoided the collision, and eventually regained control continuing past the collision before stopping. Mr. Lymer’s braking caused a large and distinct skid mark on the roadway.

Police collision reconstruction was able to conduct a speed calculation based on this skid mark. Had Mr. Lymer began braking at the moment the skid began, and came to a complete stop at the point where the skid ended, his speed would have been at least 94 km/hr. Given that he did not come to complete stop, Mr. Lymer, who was trailing behind Mr. Cadet, was going more than 94 km/hr up Brock Road when he and Mr. Cadet came upon Ms. Boni.

Although it was Ms. Boni who was turning left, given the defendant’s speed and his relation to Mr. Lymer, Mr. Cadet was a significant contributing cause of the collision with Ms. Boni. Mr. Cadet struck the front driver’s side of Ms. Boni’s vehicle. This caused massive damage to both cars. The BWM skidded to the right, eventually mounting the curb, coming to rest on the grassy boulevard.

Ms. Boni’s vehicle also suffered significant front and passenger side damage. It was spun, and redirected to the west, coming to rest against the traffic light on the median to the north of the intersection.

Mr. Cadet was not wearing his seat belt. He was thrown from the driver’s seat to the passenger seat, striking his head on the windshield. As a result of the collision, he suffered extensive and significant injuries. Seated in the back of his vehicle through this crash was Mr. Cadet’s 9-year-old son, Kaiden Cadet-Darling. He was seriously injured.

Phong Pham was seated in the front passenger seat of Ms. Boni’s vehicle. Her mother and sister were seated in the back. As a result of the collision, Mr. Pham suffered long term significant hearing loss. Ms. Boni and the other passengers had minor injuries.

Mr. Cadet was air lifted to a hospital. At 9:25 p.m. a nurse at St. Michael’s Hospital drew his blood. This blood was later analyzed at the Center of Forensic Sciences, where it was determined that he had a blood drug concentration for THC of 6.9 ng/ml. The legal limit by regulation is 5 ng/ml.

[9] The pictures of the damage to Mr. Cadet’s vehicle are shocking. It is miraculous that he and his son survived that crash.

[10] There was some additional evidence that was not part of the agreed statement of facts. I am entitled to rely on testimony that I heard during the trial if I am satisfied that it was credible and reliable. [1]

[11] Mr. Jake Eagles was in the area just before the crash. Mr. Eagles’ attention was drawn to the sound of engines revving. He thought that this was unusual in a quiet neighbourhood, with some commercial properties and a speed limit of 60 km an hour. Two vehicles passed by him at a high rate of speed immediately prior to the dramatic collision.

[12] Mr. Eagles testified that his best estimate of the distance that the vehicles travelled from the time he first saw them, to the crash, was approximately 500 feet. Converting feet into metric measurements, that is 152 metres. I take judicial notice of the fact that the distance between Pickering Parkway and the first set of lights to the plaza is about that distance. Based on an estimated speed of 94 km/hr in the agreed statement of facts, Mr. Cadet’s observed poor driving lasted for approximately 10 seconds. Those 10 seconds and Mr. Cadet’s initial irresponsible decision to drive under the influence of an intoxicating substance changed innocent lives forever.

ii. Tragic aftermath of the collision

[13] Ms. Boni provided a victim impact statement expressing shock and outrage that Mr. Cadet put her family’s well being at risk and his own son’s life at risk. She wrote about the impact of this offence on her boyfriend, Mr. Pham, who permanently lost his hearing in one ear at such a young age. In addition, Ms. Boni’s sister is “suffering and dealing with mental health issues”. Although they have moved on with their lives, she feels like “things will never be the same”. Mr. Pham declined the opportunity to provide a victim impact statement, but it is obvious that he has also been suffering because of Mr. Cadet’s actions. He will be left with a lasting disability for the rest of his life.

[14] Kaiden Cadet-Darling was only 9 years old. As a result of the collision, he suffered a dislocated jaw, dental trauma, a laceration to his chin, bruised lungs, a lacerated spleen, and a minor pelvic fracture. According to family members, he was hospitalized for four weeks. Since his release from the hospital, Kaiden has been recovering with the help of his mother, father, and extended family. He required some physiotherapy, but it appears that he is a resilient child. He will not have any permanent physical disabilities.

[15] The person who was the most seriously physically injured was Mr. Cadet. He was airlifted from the scene. The injuries he suffered were detailed in statements provided by his girlfriend and his mother who became his caregivers.

[16] Mr. Cadet suffered a broken ankle, wrist, broken ribs, and various injuries that required multiple surgeries. He has permanent metal rods in his hip and a temporary steel rod in his left wrist. Most substantially, because he was not wearing a seat belt, he suffered severe brain injuries, including contusions and hemorrhaging. He was in hospital for a month. Afterwards, he spent 3 months undergoing intensive in-patient rehabilitative care. He required a wheelchair when he was first released from the hospital. He slowly transitioned to crutches. Currently, he walks unassisted however, he will never jump or run like he used to before the collision.

[17] Three years after the accident, it is apparent that Mr. Cadet’s road to recovery has been slow and arduous. Mr. Cadet has difficulty sleeping due to persisting pain in his wrist, knee, and hips. He requires ongoing physical and massage therapy to regain mobility and alleviate his pain. In addition to lasting mobility issues, he suffers with light sensitivity and frequent headaches due to his head injuries. He has issues with his memory, focusing and concentrating. He is struggling with depression and anxiety.

[18] Mr. Cadet has not been able to work since the crash which caused financial hardship. He has not been able to drive because of the release conditions prohibiting from driving for the past three years. He depends on family and his girlfriend to transport him to his various appointments.

iii. Circumstances of the offender

[19] Counsel provided a fulsome picture of Mr. Cadet’s life before the collision. He filed over a dozen character letters that detail Mr. Cadet’s positive characteristics, his love for his son, his extensive support system, his continued suffering due to his misdeeds and his deep remorse for these offences. Impressively, none of the character references excused or minimized the impact of Mr. Cadet’s crimes. They spoke to the gravity of his misconduct and the terrible repercussions. It is evident that Mr. Cadet has accepted full responsibility and he understands the hurt and disappointment that he caused to his loved ones in addition to the victims.

[20] I read letters from his girlfriend, the mother of his son and her family, his mother, other family members, friends, and former coworkers. Mr. Cadet’s physiotherapist was even present during the sentencing hearing. All his references expressed shock and disbelief that Mr. Cadet committed these crimes which they described as completely out of character for him, especially endangering the life and safety of his son. In summary, the mitigating facts are:

• Mr. Cadet is a youthful man, 31 years old. He has no prior criminal or driving record. He plead guilty before any of the victims of the crash were required to testify in court.
• From an early age, Mr. Cadet was “a good kid, always stayed out of trouble, graduated high school”. He “went to church” and “helped his community”.
• Mr. Cadet was a very “talented athlete”. He played competitive football in high school and university. He was playing at the “semi-pro level and had offers to play in Europe”. His dreams and aspirations of a career in football abruptly ended the day of this collision.
• He has a university education. He had a career path planned for after he finished playing football. Before he was injured, Mr. Cadet had an “excellent work ethic”, a “thirst for knowledge” and “an eagerness to grow and improve”. He is hoping that he will recover more so that he can pursue a career in “coding”.
• Presently, he is unable to work because he is in constant pain and the aftermath of his brain injury. He requires assistance with daily activities, household chores and remains dependent on his support system.
• He was consistently described in the letters as solid, dependable, loyal, honest, exceptional, wonderful, pleasant, kind, thoughtful, compassionate, gentle, responsible, and respectful. He has positively impacted the lives of many people over the years.
• Every character reference described his parenting, other than that one fateful day, in glowing terms. He is a “first-class”, loving father. He shares a “special bond” with his son. He was an excellent role model who tried to instill sound morals and values in his son. He is devastated by how his actions have impacted his child. Mr. Cadet has taken responsibility and provided emotional support to his son while he was recovering from his injuries. He is helping Kaiden transition back to a sense of normalcy. Mr. Cadet attends his son’s sporting activities, martial arts, track and field, school events and family outings. Kaiden is now twelve years old and “needs his father in his life more than ever”.
• Mr. Cadet has the benefit of a very strong support network including the unwavering presence of his girlfriend. He has remarkable potential for rehabilitation.
• Mr. Cadet spoke to me during the hearing. He expressed sincere remorse for his actions and the pain and suffering that he caused to each of the victims. Despite his own devastating injuries, he did not express any self pity.

[21] An extraordinarily good, talented person made an exceptionally poor choice that permanently changed the lives of innocent victims. I accept that this offender has already been specifically deterred and has great potential for rehabilitation. Nevertheless, the very reason why these types of offences require punitive sentences is that it is essential to send an unwavering message that may deter or prevent some other good person from making the dangerous choice of getting behind the wheel of a vehicle while under the influence of an intoxicant.

C. The legal principles

i. Guiding sentencing principles

[22] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

[1] to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct . [2] to deter the offender and other persons from committing offences. [3] to separate offenders from society, where necessary. [4] to assist in rehabilitating offenders. [5] to provide reparations for harm done to victims or to the community; and [6] to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[23] Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.

[24] Undoubtedly, in cases involving driving under the influence of an intoxicant that result in bodily harm, general deterrence and denunciation are the predominant sentencing principles. When there are additional aggravating factors, like speeding in a populated area and driving under the influence of a drug with a child present in the vehicle, these guiding considerations are even more pressing. Parliament identified specific statutorily aggravating factors for sentencing purposes in section 320.22 of the Criminal Code:

A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person. (c) a person under the age of 16 years was a passenger in the conveyance operated by the offender.

[25] There are countless powerfully worded decisions about the prevalence and perils of choosing to drive while under the influence of an excessive amount of an intoxicant and the tragic consequences. These precedents explain and justify the exemplary and steadily increasing sentences that are meted out in the hope that deterrent and denunciatory sentences will stem the tide of death, injury and destruction caused by these crimes:

• “Every year, drunk driving leaves a terrible trail of death, injury, heartbreak, and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country”: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 16 (S.C.C.)
• “No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer. Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving”: R. v. McVeigh, [1985] O.J. No. 207 at page 5 (Ont.C.A.)
• “Impaired driving causing bodily harm is the type of offence where offenders often present as solid "pillar-of-the-community" type men and women with otherwise impeccable characters and without any criminal record. When our courts speak of the need for deterrence, it is a particular type of conduct and not the consequences of the conduct that is the primary focus. An accident that has occurred cannot be undone. Nobody -- sober or impaired -- gets behind the wheel intending to inflict grievous bodily harm upon someone else. Impaired drivers often delude themselves into thinking that they pose no risk to anyone when they take to the road. Law enforcement cannot hope to catch more than a tiny fraction of the drivers who choose to take that risk (or who convince themselves that there is no risk) by driving while impaired. The role of exemplary sentences is to alter the mindset of the person who is about to get behind the wheel while impaired. Such sentences are designed to result in more people saying "it's not worth the risk of being caught" if the objective risk of harming their fellow citizens is insufficient to deter their behaviour”: R. v. Gomes, 2020 ONSC 1013, [2020] O.J. No. 688 at para 19 (Ont.Sup.C.J.)
• The Ontario Court of Appeal observed that a significant custodial sentence for these crimes reflect “the gravity of the risk the appellant took and the tragic consequences that flowed from his taking that risk. It also reflects the upward trend for sentences involving drunk driving causing death, a trend that corresponds to society's heightened recognition of the need for sentences in these cases that focus on general deterrence and protection of the public”: R. v. Carreira, [2015] O.J. No. 4867 at para 26 (Ont.C.A.)
• “While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society”: R. v. Lacasse, 2015 SCC 64 at para. 6
• The crown relied on local decisions rendered by my colleagues. Justice Wakefield observed that “ sentencing ranges up to even today have not eliminated the carnage cause by drinking drivers. I do not need to cite statistical analysis to note that in my jurisdiction of Durham Region, drinking and driving cases continue to occupy judicial resources every week, if not every day, in at least one of our courtrooms. At some point, sentences much reach the level of severity as to ensure those who would drink and drive will be deterred”: R. v. Andrews-Somers, 2021 ONCJ 227 at para. 50.
• Similarly, Justice Felix stated “ as a Judge presiding in criminal court every sitting day, I am keenly aware of the prevalence of drinking and driving in Durham even without resort to evidence or statistics”: R. v. Mitchell, 2016 ONCJ 731 at para 44.

[26] Parliament responded to the dangers to public safety posed by these crimes by increasing the available penalties. In R. v. Lacasse, supra, at para 7, the Supreme Court observed that “the increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.”

[27] While almost all the precedents I reviewed involved impairment by alcohol or exceeding the legal limit of alcohol in a person’s blood, the principles apply equally to impairment by drugs or exceeding the legal limit of THC in a person’s blood. After reviewing similar sentencing decisions in R. v. Ashton, [2021] O.J. No. 3223 at paras. 41 and 44 (ONSC), Justice Leibovich made the following pertinent remarks:

The range described above has developed largely in the context of individuals who are impaired by alcohol. There is no logical reason, (and to be clear, counsel does not suggest that there is), to treat cases where an accused person drives with a prohibited amount of a drug and causes death any differently. Both types of drivers pose the same risk to the safety of the public. The Criminal Code provides that in each case an offender can receive a maximum penalty of life imprisonment. [emphasis mine]

Dr. Beirness also talked about the difficulties in identifying drivers impaired by drugs. He stated:

In many respects, however, compared to identifying drivers impaired by alcohol, detecting drug-impaired drivers presents a series of additional challenges. For example, breath testing for alcohol has been commonplace in Canada since its introduction in 1969; roadside alcohol screening has been used since the mid-1970s. In contrast, most drugs of interest cannot be readily detected or measured in breath and require more complex and time-consuming procedures to collect and analyze samples of blood, urine or oral fluid.

In some sense, the danger produced by mixing drugs and driving is even more pronounced given that others may not recognize the signs that the person is impaired by drugs. It is difficult to stop a friend from driving under the influence of drugs when you cannot recognize the signs.

[28] Justice Leibovich’s findings were supported by expert evidence and statistical analyses establishing that collisions involving injuries and fatalities caused by drivers operating under the influence of mind-altering drugs are on the rise. Surprisingly, he found that drugs are an even more prevalent contributing cause of serious collisions than operating under the influence of a prohibited amount of alcohol. Cannabis was the most frequently detected drug.

[29] The guiding sentencing principles in drinking and driving cases are equally applicable to driving with an excessive amount of cannabis in a person’s system. These offences are more insidious insofar as it is more difficult to detect the presence of a drug in a driver’s system. Absent the blood seized at the hospital, there were no indicators at the scene that Mr. Cadet was operating under the influence of cannabis in excess of the legal limit.

[30] The sentence ranges for these types of offences have been consistently increasing over the past twenty years. Nevertheless, the Supreme Court of Canada cautioned in R. v. Lacasse, supra, at paras 57 and 58 that:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range", as it were, must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge.

There will always be situations that call for a sentence outside a particular range : although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [emphasis mine]

[31] The crown vehemently advocated that a conditional sentence “must not” and “cannot” be imposed because it would be contrary to the long line of binding appellate authority directing that the sentence ranges of incarceration should continue to increase to protect the lives and safety of innocent members of the public. These appellate decisions do not prohibit the imposition of a sentence outside the range in exceptional circumstances. As the Supreme Court held in R. v. Lacasse, supra, at para. 60:

…sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak , at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle.

[32] A sentence must be responsive to the aggravating circumstances of the offence and the mitigating circumstances of the offender as opposed to unduly focusing on one or the other. The Supreme Court emphasized in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 at para. 37 that:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system....

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[33] The crown also advocated that the only way to generally deter other individuals from committing these offences is to incarcerate the offenders. I disagree. There are other consequences that send a deterrent message in addition to incarceration. The loss of an individual’s driver’s licence is a substantial penalty that should impact the totality of the sentence. In R. v. Frickey, [2017] O.J. No. 6887 at paras. 4 and 10, the Ontario of Appeal observed that:

The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens. In these circumstances, the driving prohibition serves as the most practical means to ensure the protection of the public.

In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2(e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision. [emphasis mine]

[34] An increased driving prohibition, as well as other sanctions, can appropriately reduce the length of a custodial sentence and may even support a conditional sentence in exceptional cases. Sentencing requires a careful balancing of competing considerations to achieve a just disposition. The Supreme Court of Canada reiterated in R. v. Lacasse, supra, at para 12 that:

Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[35] I must balance the aggravating features of the offences with the mitigating circumstances of this offender. Some unusually aggravating or mitigating factors may tip the scales one way or the other when deciding whether to impose a custodial sentence. Important considerations are the youthfulness of an offender, whether they have a previous record and whether less restrictive sanctions could achieve all the sentencing goals.

ii. The principle of restraint

[36] Section 718.2 of the Criminal Code codified the principle of restraint that:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[37] In the seminal decision of R. v. Priest, [1996] O.J. No. 3369, the Ontario Court of Appeal stressed that:

Para 20: The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence.

Para 26: The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good . [emphasis mine]

[38] In R. v. Francis, 2022 ONCA 729 at para. 80, the Court of Appeal overturned a sentence and reduced it by two years because the sentencing judge had not sufficiently considered the appellant’s age and lack of record. Justice Tulloch reiterated that:

This court has repeatedly emphasized the critical role that the principle of restraint plays when sentencing a youthful, first-time offender. While the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence. Where an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed. [citations omitted]

[39] Mr. Cadet’s youthfulness and lack of any criminal or driving record are mitigating factors that should weigh heavily in terms of tipping the scales towards a more lenient sentence. Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. The crown emphasized that these crimes are so serious that a custodial sentence is required even though Mr. Cadet is a first-time offender.

[40] While I agree with the crown that these offences are extremely serious and merit a denunciatory and deterrent sentence, as noted, incarceration is not the only means to achieve these sentencing goals in certain cases. Other punitive sanctions must be explored. In R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 at para. 110, the Ontario Court of Appeal emphasized that a conditional sentence: [2]

…serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives.

[41] While a conditional sentence would be the least restrictive penalty in these circumstances, I must consider whether it appropriately balances competing sentencing considerations by reviewing any similar sentencing precedents and whether it is a statutorily available sanction.

iii. The principle of parity

[42] Subsection 718.2(a) of the Criminal Code codified the long-standing principle of parity that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[43] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find identical facts. Even when there are comparable cases, it cannot be understated that there is no "one size fits all" sentence for any offence. In R. v. Lacasse, supra at para. 54 the Court provided the following guidance:

The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.

[44] Sentencing precedents are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 at para. 29, the Ontario Court of Appeal cautioned that:

It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

[45] The crown relied on a multitude of decisions, helpfully summarized in a sentencing chart, to support his position of 2 years incarceration. Based on a review of the binding appellate sentencing precedents, it is evident that sentence ranges have been steadily increasing over the past decade in response to the continued carnage on our roads. Every decision relied on by the crown resulted in the offender being sentenced to a period of incarceration. While the principles of sentencing were applicable to this case, each of the decisions were factually distinguishable.

[46] In contrast, counsel relied on three sentencing decisions from the Ontario Court of Justice in which the offenders received the benefit of conditional sentences as opposed to incarceration. [3] Conditional sentences are and should be exceptional, but they are not unprecedented. The individual facts in each case inform the just and proportionate sentence.

[47] In contrast to many of the decisions relied on by the crown, a consideration unique to this case is the crown’s election. The crown elected to proceed by summary conviction on both counts. As a result, the sentence is both informed and limited by the maximum available penalties. Sections 320.2(b) and 320.24 of the Criminal Code state that:

Punishment in case of bodily harm

320.2 Every person who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of, (i) for a first offence, a fine of $1,000, (ii) for a second offence, imprisonment for a term of 30 days, and (iii) for each subsequent offence, imprisonment for a term of 120 days; or (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day , or to both, and to the minimum punishments set out in subparagraphs (a)(i) to (iii).

Prohibition period

(5) The prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment; (b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and (c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment .

[48] The maximum period of incarceration for each offence is two years less a day. The crown agreed that a total sentence of two years incarceration would be fit, proportionate and within the range of sentences recently contemplated by the Ontario Court of Appeal as well as numerous other courts. The remaining consideration is whether the sentence ought to be served in custody or in the community.

[49] Both counsel and the crown initially advocated for lengthy prohibition orders for different reasons. They altered their positions as a result of the crown’s election. The maximum prohibition order is three years for each offence plus any period of incarceration.

iv. Collateral consequences of the crime

[50] Before addressing whether a conditional sentence is a fitting sanction, there are two unique collateral consequences that provide important context to my decision.

[51] The Supreme Court of Canada has repeatedly and consistently emphasized the importance of “individualization” in sentencing. In R. v. Pham, 2013 SCC 15 at para 9, the Supreme Court reiterated that, “consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender's personal circumstances .” [emphasis mine]

[52] There are a myriad of subjective and objective factors that contribute to the unique sentencing considerations in an individual case. There are two different types of collateral consequences of Mr. Cadet’s crimes that may impact the sentence.

[53] First, Mr. Cadet’s son, Kaiden, was severely injured in the collision. This is an aggravating fact, but it is also a complicated consideration. This child is an innocent victim who has already suffered considerably. He is very close to his father. Kali Darling, Kaiden’s mother, filed a character letter on behalf of Mr. Cadet. She explained how they became parents as teenagers. Their relationship ended but they continued to coparent their son. Ms. Darling wrote:

• Kurlan has been a solid and committed father, even through our ups and downs, he stayed strong, reliable, and dependable for our son.
• We coparent Kaiden in a positive and loving environment. Kurlan is a huge part of Kaiden’s life, they spend almost every single weekend together.
• I am very dependent on Kurlan and his assistance in co-parenting Kaiden, school pick-ups/drops offs, sports, camps, father figure, parenting decisions and the list goes on.
• I know Kurlan is an exceptional individual, a first-class father to his son and a wonderful stand-up human being. Kaiden and I love Kurlan very much.

[54] Mr. Cadet is an actively involved and loving parent. He shares custody of his son. If Mr. Cadet is incarcerated, this innocent child victim will be separated from a parent who he depends on which will exacerbate his trauma. I asked the crown what, if any, impact the additional suffering that a sentence of incarceration would inevitably cause this child, this victim, should have on the sentencing. The crown’s response was that Kaiden’s suffering is Mr. Cadet’s “fault” which should not mitigate the sentence. The crown’s response was both insensitive and misguided.

[55] The preamble to the Victim Bill of Rights, 1995 S.O. 1995, c. 6 states that:

The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process. [emphasis mine]

[56] A victim should not advocate for or provide an opinion about the appropriateness of a particular sentence: R. v. Jackson, [2002] O.J. No. 1097 (Ont.C.A.). That does not mean that a court cannot consider the negative impact that a particular sentence may have on the victims of a crime especially when it may “increase the suffering of victims of crime”.

[57] Restorative justice is an important and worthy goal of sentencing. In R. v. Proulx, 2000 SCC 5 at para. 19, the Supreme Court explained that it was one of the many considerations behind the introduction of conditional sentences in 1996. Justice Lamer explained that “with the introduction of Bill C-41, however, Parliament has placed new emphasis upon the goals of restorative justice”.

[58] When an offender is sent to jail, their families are often adversely impacted by the forced separation from a loved one. This consequence should not necessarily “mitigate” the sentence. In R. v. Skardiute, 2023 ONCJ 10 at paras 35 and 36, a Court recently considered this issue and found that:

Ms. Skardiute submitted that incarcerating her would deprive her children of their primary caregiver, thereby causing her to suffer disproportionate collateral consequences. While I am not unsympathetic, separation from her family speaks less to the propriety of a CSO and more to the appropriate length of incarceration. The collateral effect that the defence speaks of is not exclusive to Ms. Skardiute. The prospect of family disruption is true for all offenders with families, whether or not they are primary caregivers. In my view, as long as an offender has family that relies upon them in any way, family disruption is a foreseeable consequence of committing serious crimes. That said, the separation of an offender from her family is an appropriate consideration provided that the sentence imposed remains proportionate to the gravity of the offence and the responsibility of the offender: R. v. L.C., 2022 ONCA 863.

Having taken into account the effects of familial separation, I am persuaded that the family disruption caused by Ms. Skardiute's incarceration can be mitigated given the arrangements for childcare outlined by counsel in his submissions, including relatives and friends pitching in to look after the children.

[59] The collateral consequence of Mr. Cadet harming his son and being separated from him were foreseeable consequences of driving while under the influence of an intoxicant with his son in the car. Moreover, it is a statutorily aggravating that Mr. Cadet risked the life and safety of a child. Nevertheless, I must be sensitive to the impact this sentence will have on a child victim.

[60] Respectfully, the impact of any sentence on innocent members of the community is one of many factors that ought to be considered when assessing whether a conditional sentence is a proportionate sanction. I do not agree that these considerations “speak more to the appropriate length of incarceration” as opposed to exploring other punishments like a conditional sentence. The Supreme Court explained in R. v. Pham, supra, at para. 11 that:

The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.

[61] Furthermore, in R. v. L.C., 2022 ONCA 863 at paras 23 and 24, the Ontario Court of Appeal was clear that it is “open” to the court to consider the collateral consequences of familial separation:

The appellant relies on R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20, for the proposition that sentencing courts can consider not only that a parent will be separated from their children, but that the children will be separated from the parent and (where applicable) each other, as collateral consequences that could magnify the severity of the sentence for an offender … This court also has previously accepted that family separation may be a relevant collateral consequence. [citations omitted and emphasis mine]

Given this authority, I accept that it is open to a sentencing judge to consider both collateral family consequences of family separation on the offender, as well as on the children themselves. However, the sentence imposed must always remain proportionate to the gravity of the offence and the responsibility of the offender.

[62] Mr. Cadet’s son is a victim who will be detrimentally impacted if he is separated from a loving, supportive, and involved parent. While the perspectives of the victims of crimes cannot dictate an outcome, if a sentence can be crafted that achieves the predominant sentencing principles and restorative justice, that is preferable to narrowly focussing on general deterrence. General deterrence and denunciation are the predominant sentencing objectives, but they are not the only goals or guiding principles.

[63] I am also cognizant of the Supreme Court of Canada’s cautionary remarks in R. v. Pham, supra, at para. 18 that attenuating considerations with respect to collateral consequences cannot justify a disproportionate sentence:

It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.

[64] A second collateral consideration is that Mr. Cadet was the person who was the most seriously injured because of his crimes and foolish choice not to wear a seat belt. He continues to suffer lasting physical and mental disabilities. He needs ongoing therapy to fully regain his mobility. I take judicial notice of the abysmal conditions in correctional facilities in this province. It is doubtful that Mr. Cadet will have access to adequate rehabilitative care that is essential to his continued recovery while in custody.

[65] Mr. Cadet has been penalized in other respects. He devoted most of his life to becoming a football player. He was an exceptional athlete. At the time of the collision, he was a semi-pro football player. As a result of his extensive injuries, he will never play football again.

[66] For the rest of his life, Mr. Cadet will be faced with constant deterrent reminders of the horrible consequences of his choice to drive under the influence of an intoxicant. He will have to cope with the guilt of the pain and suffering that he caused to his son and Mr. Pham. He will continue to suffer with his own disabilities. Finally, his life-long dreams were quite literally crushed in that crash. Mr. Cadet paid an immeasurable price for his crimes, the loss of his ability to support his family, the loss of his physical abilities, lasting neurological damage, and the loss of his independence.

[67] The Supreme Court of Canada in R. v. Suter, 2018 SCC 34 at para 46, recognised the collateral consequences of a crime may attenuate the overall sentence to ensure proportionality by “taking into account all relevant circumstances related to the offence and the offender”. The court cited a sentencing text at para 47:

There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself … [citations omitted] In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence , the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]

I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [emphasis mine]

[68] The Supreme Court went on to explain at para. 48 that these unique considerations are part of the circumstances of the offender:

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code - as they do not relate to the gravity of the offence or the level of responsibility of the offender - they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid. ; s. 718.2(b) of the Criminal Code. 2 The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [emphasis mine]

[69] I recognize that the Supreme Court cautioned that an almost inevitable collateral consequence of driving under the influence of an intoxicant, like being injured, may have less of an impact on a sentence. Moreover, as noted, it is essential that these consequences are not “used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”: R. v. Suter, supra at para. 56.

[70] I find that the life-altering punitive consequences Mr. Cadet has already endured and the impact that a sentence of incarceration would have on his son are important attenuating considerations when rendering a fit, proportionate, and individualized sentence.

v. The availability of a conditional sentence

[71] Section 742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence:

1. The offender must not be convicted of an offence that is specifically excluded.
2. The offence must not be punishable by a minimum term of imprisonment.
3. The court must impose a sentence of imprisonment of less than two years.
4. The safety of the community must not be endangered by the offender serving his or her sentence in the community; and
5. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[72] These offences are not statutorily precluded from being eligible for a conditional sentence. Secondly, there are no minimum terms of imprisonment for either of the offences. Thirdly, I find that the appropriate global sentence is less than two years.

[73] When making submissions about the fourth consideration, the crown submitted that a conditional sentence could endanger the safety of the community because it would send the wrong message to like-minded offenders. The Supreme Court unequivocally rejected this approach to assessing the danger to the community. Rather, “the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community”: Proulx, supra at para 68. Justice Lamer explained that (para. 69):

In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence.

[74] I am satisfied that Mr. Cadet has been specifically deterred from committing any further offences. He has established that he has significant potential for rehabilitation and to be a positively contributing member of society. He does not pose any threat to the safety of our community.

[75] The most challenging prerequisite to meet in these types of cases is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. The crown repeatedly submitted that a conditional sentence runs contrary to the ever-increasing sentences of incarceration aimed at protecting the public and it would not achieve general deterrence.

[76] I agree that, in most cases, a period of incarceration is required to realize the predominant sentencing principles. However, the crown’s submissions were tantamount to suggesting that the fundamental purposes and principles of sentencing necessitate a presumption against conditional sentences for impaired driving offences that cause bodily harm. Justice Lamer rejected a very similar argument advanced by the Attorney General in Proulx, supra, at paras. 80 to 83 and explained that:

81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle.

[77] I find that this case is exceptional and justifies a sentence outside the normal range. There is an opportunity to achieve the restorative objectives of sentencing through a very strict conditional sentence with creative terms. When considered in totality, this sentence will send a strong message to the public and like-minded offenders that a heavy price will be paid by anyone who drives while under the influence of an intoxicant, like marijuana, and seriously injures innocent victims including a young child.

[78] A conditional sentence will effectively balance the competing sentencing considerations only if the terms reflect that it is intended to be a jail sentence in Mr. Cadet’s home. It is counterintuitive to order a conditional sentence without terms that restrict the person’s liberty. In R. v. Proulx, supra, at para. 117, the Supreme Court of Canada was clear that: “punitive conditions such as house arrest should be the norm, not the exception”. Similarly, in R. v. Wu, 2003 SCC 73, [2003] S.C.J. No. 78 at para. 25 (S.C.C.), the Supreme Court explained that:

…Parliament did not intend conditional sentences to be "probation under a different name" (para. 28). A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration… [portion omitted] … At that point, the question is where the term of imprisonment is to be served, in a penal institution or, under punitive conditions, in the community. "It is this punitive aspect that distinguishes the conditional sentence from probation" (Proulx, supra, at para. 22).

[79] Mr. Cadet has demonstrated his commitment not to drive for three years and he has not been charged with any further offences. He has established that he is willing and able to follow court orders. I accept that he is committed to continuing his road towards rehabilitation. He will be subject to strict house arrest terms for most of the conditional sentence to ensure that it is a jail sentence in his home. The balance of the sentence will have a curfew.

vi. The driving prohibition

[80] Considering Mr. Cadet’s precarious medical state after the collision and the police needed the results of the blood analyses to form grounds, the police delayed arresting him. He was not arrested until September 4th, 2020. He was released on an undertaking that prohibited him from “operating any motor vehicle or occupying the driver’s seat of any motor vehicle”.

[81] Although the crown initially requested an unprecedented sentence of a 10-year driving prohibition, that sentence is not legally available since the crown elected to proceed summarily.

[82] The crown’s decision to elect summarily was not a reflection of the seriousness of the facts. Rather, it was a wise tactical decision to avoid the possibly of a preliminary hearing and jury trial with an initially unrepresented accused. As a result, the statutory maximum prohibition order is a period of three years for each offence. Mr. Cadet has already been prohibited from driving for nearly 3 years.

[83] Unlike other bail terms, the Supreme Court directed that the total period of time spent on pretrial driving prohibition terms “must be” deducted from the prohibition that is ordered as a part of the sentence. In R. v. Lacasse, supra, at para.113, the Supreme Court of Canada held that:

In the instant case, the driving prohibition has the same effect regardless of whether it was imposed before or after the respondent was sentenced. In R. v. Sharma, [1992] 1 S.C.R. 814, Lamer C.J., dissenting, explained that the accused had in fact begun serving his sentence, given that the driving prohibition would have been imposed as part of his sentence had he been tried and found guilty within a reasonable time. In short, where a driving prohibition is not only one of the release conditions imposed on an accused but also part of the sentence imposed upon his or her conviction, the length of the presentence driving prohibition must be subtracted from the prohibition imposed in the context of the sentence . [emphasis mine]

[84] More recently, the Supreme Court addressed this issue again in R. v. Basque, 2023 SCC 18 when deciding whether the length of time bound by bail terms that prohibit driving can be subtracted from the statutory mandatory minimum prohibition orders like time served in pretrial custody. I note that the Supreme Court’s language changed from Lacasse that the pretrial prohibition period “must be” subtracted from the ultimate prohibition order to an emphasis in Basque that this is a “common law discretion” at paras. 3 and on.

[85] At first blush, it is challenging to reconcile directions that a sentencing judge “must” as opposed to “may exercise discretion” when taking into account the pretrial prohibition period. While the Supreme Court referred to this as a discretionary consideration in Basque, the Court also observed that (para. 71):

For example, the imposition of an additional driving prohibition for a minimum of one year would amount to double punishment for an offender who had already served all or part of the minimum driving prohibition period while awaiting trial. Such a result would be contrary to the most fundamental interests of justice, raising the spectre of double punishment "without the clearest of evidence to show that Parliament wanted to achieve such an outcome" (Pham, at para. 10).

[86] It would be contrary to the fundamental interests of justice, not to deduct the pretrial prohibition period from the overall sentence if it amounts to “double punishment”. Notably the Supreme Court said it must be subtracted “in the context of the sentence”. These two decisions can be reconciled by interpreting them as a direction that a sentencing judge “must” deduct, day for day, the pretrial prohibition period unless the total period of driving prohibition has factored into lessening other punitive aspects of the sentence, so that the additional prohibition period does not amount to double punishment.

[87] For example, in this case, since the statutory maximum is a three-year driving prohibition, I can use my discretion not to count the pretrial prohibition period day for day if a lengthier prohibition period may balance the imposition of lesser custodial sentence or a conditional sentence. In the context of the overall sentence, it is not double punishment.

[88] As noted earlier in these reasons, an increased driving prohibition may justify more restraint with respect to sentences of imprisonment or the imposition of a conditional sentence. [4] But for the summary election, I would have sentenced Mr. Cadet to a driving prohibition period of five years or more.

[89] Fortunately, I do not have to decide this interesting legal issue because there is another means to achieve a similar result. The maximum driving prohibition is 3 years for each offence. To balance the competing considerations and render a sufficiently punitive sentence, I have determined that an overall loss of Mr. Cadet’s driving privileges for a period of 5 years is appropriate.

[90] All the time that Mr. Cadet spent bound by a driving prohibition while on bail will be reflected as 35 months and 24 days. The remaining driving prohibition order will be 6 days. In addition, Mr. Cadet will be prohibited from occupying the driver’s seat of motor vehicle or operating a motor vehicle or possessing car keys or car key fobs for the full duration of his conditional sentence, which will be two years in length. Subsequently, for the first month of his probation order, he will have similar terms restricting his driving privileges.

D. Conclusion

[91] While protecting our communities from more tragedies caused by impaired drivers is an important goal, judges cannot focus solely on the circumstances of the offence when sentencing an offender. A just sentence cannot be achieved through tunnel vision. Such rigidity is antithetical to rendering fair and balanced decisions.

[92] Each sentence should reflect a culmination of individual and sometimes opposing considerations. The public interest in deterring and denouncing the irresponsible choice to drive while under the influence of an excessive amount of intoxicant can be addressed, in unique cases, without incarcerating the offender. When considered in totality, this sentence is sufficiently punitive that it achieves all the predominant sentencing objectives.

[93] I have carefully considered the aggravating and mitigating facts, the unique personal circumstances, the victim impact, the guiding sentencing principles, and the precedents relied on by both counsel and the crown. While incarceration is unquestionably the norm, I find that this is an exceptional case that justifies a creatively structured sentence outside the normal range.

[94] There will be a driving prohibition period of 35 months and 24 days pretrial days plus 6 additional days. Mr. Cadet is sentenced to concurrent two-year conditional sentences with terms that will restrict his liberty interests. For the first 18 months, Mr. Cadet will serve a jail sentence in his home with GPS monitoring to ensure that he is compliant with the terms that I will impose. Thereafter, he will have curfew conditions to gradually regain some freedom. Throughout the conditional sentence and afterwards while on probation, he will be required to take counselling for psychiatric and psychological issues to address his depression and anxiety.

[95] Since Mr. Cadet’s marijuana use led to these offences, he will not be permitted to consume it. He will be prohibited from purchasing, possessing or consuming marijuana unless it is prescribed by a doctor. To ensure that he does not drive while serving his sentence in the community, a term of his conditional sentence will be that he is prohibited from occupying the driver’s seat of a motor vehicle or operating a motor vehicle. He is also prohibited from possessing car keys or car key fobs.

[96] Considering the exceptional nature of this sentence, if Mr. Cadet breaches any of the terms of the conditional sentence order, it must be impressed upon him that he could serve the balance of his sentence in custody. As a result, I expect that any allegations of a conditional sentence breach will be heard in front of me.

[97] The sentence will be creatively structured to achieve restorative justice by ensuring that Mr. Cadet spends ample time devoted to supporting his son. Mr. Cadet cannot alter the past, but he can ensure that he continues to dedicate his future time and energy to his son’s physical, emotional, and psychological healing. He is ordered to complete lengthy community service hours that are focussed primarily on volunteering in a manner that helps Kaiden’s continued recovery.

[98] While devoting a significant amount of time to the care of Mr. Cadet’s son is not traditionally what is contemplated by community service work, subsection 742.3(2)(d) of the Criminal Code provides that the optional conditions of a conditional sentence can include to “provide for the support and care of dependants”. Moreover, subsection 742.3(2)(f) states that I can order “such other reasonable conditions as the court considers desirable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offence”. Focusing on Kaiden’s support and recovery is a means to secure Mr. Cadet’s ongoing good conduct and rehabilitation.

[99] The conditional sentence will be followed by a period of one year of probation to ensure Mr. Cadet’s continued counselling and sobriety.

Appendix A

2-year Conditional Sentence

• Keep the peace and be of good behavior.
• Appear before the court when required to do so.
• Notify the Court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

Reporting:

• Report in person or by telephone to a conditional sentence supervisor:
  • today; and
  • thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision.
• you must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request.

Residence:

• you must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor.

Travel restrictions:

• Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor.

Curfew:

• For the first 18 months of your conditional sentence order, you will remain in your residence or on the property of your residence at all times except:
  • on Saturdays between the hours of 1 p.m. to 5 p.m. in order to acquire the necessities of life.
  • on December 24th and December 25th when you are permitted to be outside of your home without a curfew to celebrate the holidays only if you are in the company of Kaiden Cadet-Darling.
  • for any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours.
  • while travelling directly to, directly from and while attending at pre-scheduled legal, medical, physiotherapy, rehabilitation, or dental appointments.
  • while travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs.
  • while travelling directly to, directly from and during the course of your gainful employment.
  • while travelling directly to, directly from and while attending at your community service hours (restorative justice hours) which includes all of the activities with Kaiden Cadet-Darling that are outlined in the community service part of this order.
  • while travelling directly to, directly from and while attending at your place of worship.
  • You must confirm the schedule for all of these exceptions to your period of home confinement by telephone or in person in advance with the conditional sentence supervisor setting out the specific times for these activities.
  • with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and
  • for carrying out any legal obligations regarding compliance with this conditional sentence order.
• For the last 6 months of your conditional sentence order, you will remain in your residence or on the property of your residence between the hours of 10 p.m. to 6 a.m. daily, except:
  • for any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours.
  • while travelling directly to, directly from and during the course of your employment.
  • while travelling directly to, directly from and while attending at your community service (restorative justice) hours.
  • with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and
  • for carrying out any legal obligations regarding compliance with this conditional sentence order.
• You must present yourself at your doorway of your residence upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement and curfew conditions.

GPS monitoring:

• For the first 18 months of your conditional sentence, you shall be subject to the GPS monitoring program.
• You shall report to your conditional sentence supervisor today for the purpose of arranging your enrolment in the GPS program.
• After completing the intake process with your conditional sentence supervisor, you shall go directly to your approved address.
• You will be subject to GPS monitoring by the government funded GPS monitoring program and agree to abide by all of its rules and protocols ( except those specifically excluded by this order ) by providing your signature on the GPS Rules and Protocols which will be attached to this conditional sentence as Schedule A. These rules and protocols form part of the conditional sentence order.
• You shall follow the instructions of your conditional sentence supervisor and/or representatives of the government funded GPS monitoring program with respect to the installation of the GPS monitoring ankle bracelet and any associated equipment.

Community service/restorative justice work:

• You will perform 180 hours of community service/restorative justice work which must include:
  • Travelling directly to and directly from and while attending at or coaching organized sports and/or martial arts in which Kaiden Cadet-Darling is participating; and/or
  • Travelling directly to and directly from and while volunteering at any camp that Kaiden Cadet-Darling is attending; and
  • Travelling directly to and directly from and while attending at or volunteering at Kaiden Cadet-Darling’s organized school activities including extracurricular activities.
• The hours are to be performed on a rate and schedule to be directed by and to the satisfaction of the conditional sentence supervisor and they it must be completed within the first 18 months of the start date of this Order.

Drugs:

• Do not purchase, possess, or consume any marijuana or any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act except in accordance with a valid prescription in your name.

Counselling and Treatment:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to:
  • Counseling for anxiety, depression and post-traumatic stress disorder
• You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Additional terms – Driving Prohibition:

• You are not to occupy the driver’s seat of a motor vehicle or operate a motor vehicle.
• You are not to possess any keys or key fobs that operate a motor vehicle.

Appendix B

Terms of the one-year Probation Order

Statutory conditions:

• Keep the peace and be of good behavior.
• Appear before the court when required to do so.
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

Reporting:

• Report in person or by telephone to a probation officer:
  • within 5 working days of the completion of your conditional sentence;
  • and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
• Your reporting requirements will end when you have satisfied your probation officer that you have completed all your counselling.
• You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.

Drugs:

• Do not purchase, possess, or consume any marijuana or any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act except in accordance with a valid prescription in your name.

Counselling and Treatment:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer.
• You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Additional terms – Driving Prohibition:

For the first 30 days of your probation order:

• You are not to occupy the driver’s seat of a motor vehicle or operate a motor vehicle.
• You are not to possess any keys or key fobs that operate a motor vehicle.

[1] The degree of proof varies depending on whether it is a mitigating or aggravating fact: section 724(3) of the Criminal Code [2] This decision was overturned on other grounds: R. v. Sharma, 2022 SCC 39 [3] R. v. Zachar, 2018 ONCJ 631; R. v. Ferguson-Kellum, 2023 ONCJ 119; R. v. Creft, 2022 ONCJ 572 [4] See paragraph 31 and the decision of R. v. Frickey, [2017] O.J. No. 6887 (Ont.C.A.)