ONTARIO COURT OF JUSTICE

DATE: October 17, 2023

COURT FILE No.: 3811-21-81400883

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRANDON LAKE

Before: Justice Angela L. McLeod

Heard: December 23, 2022, for Judicial Pretrial April 25, 2023, for Plea of Guilt July 28, 2023, for Sentencing Hearing

Counsel: Katherine Spensieri, counsel for the Crown Soban Ponnampolam, counsel for the accused

McLeod J.:

OVERVIEW

[1] Mr. Lake was charged that on or about the 10th day of January in the year 2021 at the Town of Collingwood in the said Region, did drive a vehicle, 2019 GMC Sierra Pickup Truck, on a highway, to wit,: Poplar Sideroad, carelessly, to wit: without due care and attention or without reasonable consideration for other persons using the highway, and did cause death to Michael Geoffrey Day, contrary to s. 220(b) of the Criminal Code of Canada.

[2] He plead guilty to the offence of dangerous driving cause death, contrary to s. 320.13(3) of the Criminal Code of Canada.

[3] The maximum penalty is imprisonment for life.

[4] Following his plea of guilt, a presentence report was ordered, and a sentencing hearing was scheduled.

FACTS

[5] An agreed statement of fact was filed as Exhibit #1. A summary follows:

(1) On the day in question, Mr. Lake was 31 years of age; Mr. Day was 37 years of age.

(2) The two-car motor vehicle collision occurred at approximately 8:00pm. Each driver was the lone occupant of their vehicle.

(3) When fire and police personnel arrived on scene they observed:

(a) The deceased was lodged in the driver seat of his vehicle.

(b) All air bags were deployed.

(c) The driver side of the vehicle was completely sheared off.

(d) The deceased had obvious head trauma, a shattered leg and blood was observed on him. He was vital signs absent.

(e) Mr. Lake was walking from the direction of the second vehicle, which had rolled onto its roof.

(f) Mr. Lake appeared to be in shock and was unaware of his surroundings or what had occurred.

(g) Mr. Lake had nonlife threatening injuries.

(h) Mr. Lake divulged that he is prescribed Dilantin for seizures and takes the medication as prescribed. He also stated that he last suffered a seizure the day before the collision.

(4) When Mr. Lake was taken to the hospital:

(a) There was no indication his ability to operate a motor vehicle was impaired by consumption of alcohol or other substances.

(b) He revealed that he had a history of seizures and admitted to suffering from a seizure the day before the collision.

(c) He divulged to the attending physician that he had not taken his seizure medication for at least two days.

(d) His blood was tested, and he had less than 3 micromoles per litre of phenytoin in his body, the active ingredient in Dilantin. The expected level of phenytoin for those being treated with Dilantin is between 40-80 micromoles per litre.

(e) A small amount of ethyl alcohol and THC was detected in his body.

(5) Six days later, Mr. Lake provided a cautioned statement to police:

(a) He advised that he had no memory of the collision.

(b) He advised that he had not consumed alcohol nor drugs on the day in question.

(c) He advised that he had seizures in the past and takes Dilantin.

(d) He advised that his last seizure was in February or March 2020.

(e) He advised that he takes his medication, as prescribed, each night before bed, and took it the night before the collision.

(6) Through police investigation and accident reconstruction, the following details of the collision were revealed:

(a) Mr. Lake was travelling at approximately 135 km/hr at the time of impact.

(b) Mr. Day was travelling at approximately 14 km/hr at the time of impact.

(c) Mr. Lake’s vehicle had been accelerating slightly in the moments preceding the collision. No breaking was detected.

(d) Mr. Lake’s vehicle crossed the center line, into the oncoming lane of traffic, onto the gravel shoulder and colliding head on with Mr. Day’s vehicle.

(e) Both drivers were wearing seat belts.

(f) Weather, road conditions and mechanical fitness of both vehicles were not factors.

(7) Mr. Lake’s history of seizures vis-à-vis his driving privileges can be summarized as follows:

(a) June 29, 2008 – suffers a seizure and MTO is notified. Prescribed Dilantin.

(b) August 18, 2008 – MTO issued a medical suspension.

(c) October 30, 2008–June 12, 2009 – completed numerous medical assessments.

(d) June 12, 2009 – his physician provided a medical report confirming that he would continue taking his medication.

(e) June 26, 2009 – his license was reinstated, and he was directed to advise of any change to his medical condition.

(f) January 29, 2020 – MTO received a medical report in regard to another seizure that was due to epilepsy. The opinion expressed was that it was dangerous for him to drive.

(g) February 3, 2020 – he advised his doctor that he had discontinued Dilantin 6 months prior. His medication was re-prescribed.

(h) February 19, 2020 – MTO issued a medical suspension of his driver’s license.

(i) May 14, 2020 – MTO reinstated his driver’s license.

(j) Post collision – his doctor confirmed his primary condition as epilepsy and that the January 10, 2021, incident was due to same. He admitted to reducing his Dilantin contrary to his doctor’s direction and without medical consultation or notice. He admitted that he had a mild substance use disorder, occasional inappropriate use of alcohol or psychoactive substances, including cannabinoids.

VICTIM IMPACT

[6] Mr. Day’s sister, Kristina, wrote that her brother Michael was “the type of person you would call if you were in trouble or needed a friend.” She can no longer drive at night as a direct result of this incident. She included a photo of Michael in which he is smiling and it appears that his smile could light up a room.

[7] Mr. Day’s parents, Ralph and Linda, wrote that they continue to struggle with the loss of their son to this day. It is challenging for them to even talk about their loss. They have had to seek medical assistance for the impact upon them.

[8] The impact upon the family and friends of Michael Day is profound.

POSITION OF THE PARTIES

[9] The Crown seeks a custodial sentence of 2 years less one day, to be followed by 12 months probation, a driving prohibition of not less than 25 years to a maximum of life, a s. 109 order for 10 years, a DNA order and a s. 743.21 order.

[10] The Crown relies upon the sentencing principles of proportionality, deterrence, reparation, parity, and denunciation. The Crown argues that Mr. Lake’s moral blameworthiness is at the high end, considering that his actions were not a momentary or transient lapse of judgement but rather was prolonged and that he had a degree of foresight into what danger he placed himself and other drivers on the road should he not take his medication.

[11] The Crown acknowledges that other courts have imposed sentences from suspended sentence to multi-year penitentiary sentences.

[12] The Crown is opposed to a conditional sentence, highlighting that Mr. Lake claimed in the presentence report not to be aware of what was underlying his seizures (despite years of medical treatment and interventions by the MTO), deflected some blame on the medical care he had been receiving from his now deceased doctor and his downplaying of the seriousness of mixing alcohol and recreational drugs with prescribed medication.

[13] Additionally, the Crown underscores Mr. Lake’s MTO convictions, some 14 over 12 years, including careless driving less than 1 year before the collision. She argues that the convictions represent a course of conduct and general carelessness toward driving, the rules of the road and concern for public safety.

[14] Lastly, the Crown submits that the court should have concerns about Mr. Lake’s reliability regarding self reporting, understanding that his position about taking his medication changed when reporting same to the EMS, the hospital and then police.

[15] The defence submits that a conditional sentence of two years less one day is appropriate.

[16] The defence relies upon the mitigation of the plea, the expressed remorse and positive letters and presentence report.

[17] Both parties made reference to a number of cases, wherein sentences ranged as noted above. I have reviewed same.

ANALYSIS

A. SENTENCING PRINCIPLES

[18] Section 718 of the Criminal Code, provides that 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."

[19] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives:

• denouncing unlawful conduct
• deterrence of the offender and other persons from committing offences
• separation of offenders from society, where necessary
• assisting in the rehabilitation of offenders
• to provide for reparations of harm done to victims, or the community; and,
• to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community.

[20] The purpose, objectives, and principles of sentencing set out in s.718 and following, of the Code, as interpreted by the courts, provide the framework for the imposition of a fit sentence on the offender.

[21] Section 718.1 provides that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh

(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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[22] A principled approach to sentencing requires an analysis without prejudice or sympathy. In R. v. Burghardt, 2020 ONCJ 517, at para 34, Justice West wrote:

Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

The purpose of sentencing is to enhance the protection of society. Sentences should reflect the gravity of the offence and the degree of responsibility of the offender. These factors can be characterized as the moral culpability of the offender’s conduct.

[23] In R. v. Vader, 2019 ABCA 488, para. 16, the court wrote:

In assessing moral blameworthiness, a sentencing judge must consider all of the circumstances that bear on an offender's moral culpability. This includes not only the nature of the unlawful act, but also the degree of planning and deliberation involved in the unlawful act and any other factor that is relevant to the offender's moral blameworthiness, such as the personal characteristics of the offender that may aggravate or mitigate the offender's moral culpability.

[24] In R. v. T., 2006 MBCA 15, the court wrote:

24 Denunciation of unlawful conduct is a discrete principle of sentencing. It is one of the objectives of sentencing set out in s. 718 of the Criminal Code. Denunciation is "the communication of society's condemnation of the offender's conduct" (Lamer C.J. in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 (S.C.C.) at para. 102). It is "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values" (Lamer C.J. in R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.) at para. 81). Denunciation is typically reserved for crimes that are particularly offensive or prevalent. When applicable, it usually prevails over the principle of rehabilitation.

[25] The principle of deterrence is succinctly summarized in R. v. Bourgeois, 2022 NBPC 2 as follows:

33 Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation.

34 General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.

[26] The principle of rehabilitation is succinctly summarized in Bourgeois, supra, as follows:

36 The maintenance of a just, peaceful and safe society, as is mandated by section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, "Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world" (see R. v. Lacasse, 2015 SCC 64 at para. 4).

[27] In R. v. Rawn, 2012 ONCA 487, paras. 17-18 and 30, the Court wrote:

17 The principle of parity of sentences is set out in s. 718.2(b) of the Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

30 In R. v. Issa (1992), 57 O.A.C. 253 (Ont. C.A.), this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there maybe sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together." [Citations omitted.]

[28] In R. v. Batisse, 2009 ONCA 114, pp. 32, the principle of restraint was reviewed:

32 The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (Ont. C.A.), at p. 545.

33 Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226 (Ont. C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

34 In serious cases and cases involving violence, rehabilitation alone is not the determinative factor — general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky [2005 Carswell Ont 876 (Ont. C.A.)], at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

B. CONDITIONAL SENTENCES – LAW AND GENERAL PRINCIPLES

[29] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

a. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment

b. the court must impose a term of imprisonment of less than two years

c. the safety of the community would not be endangered by the offender serving the sentence in the community; and,

d. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s s. 718 to 718.2.

[30] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[31] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[32] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

AGGRAVATING AND MITIGATING FACTS

[33] I find the following to be aggravating facts for consideration on sentence:

(1) Mr. Lake was travelling at a grossly excessive speed.

(2) Mr. Lake’s history of disregard for the conditions of his license, his medical issues relating thereto, and the clear historical evidence of what would happen if he did not take his prescribed medication (ie a seizure would occur).

(3) Mr. Lake’s MTO convictions and history of poor driving.

(4) The profound impact upon Mr. Day’s family, friends and community.

[34] I find the following to be mitigating facts for consideration on sentence:

(1) The plea of guilt, although at a late stage in the proceedings but before any trial dates had been set.

(2) Mr. Lake’s expression of remorse to the court.

(3) Mr. Lake’s positive letters of familial support filed as composite Exhibit #4.

(4) Mr. Lake’s positive presentence report filed as Exhibit #2.

(5) Mr. Lake’s lack of prior antecedents.

CONCLUSION

[35] As Justice Schwarzl noted in R. v. Linton, 2022 ONCJ 197:

26 The range of sentencing is cases involving dangerous driving causing death and bodily harm run the gamut from a few months to five years or more. Such a wide range is of little practical use, but it reminds us that sentencing is an individualized process that must assess and balance the unique circumstances of each case, each victim, and each offender.

[36] Parliament has identified the seriousness of the offence by making the maximum penalty life in jail.

[37] The gravity of the offence is the highest possible, the loss of a life.

[38] The degree of responsibility, and ultimately the moral blameworthiness of Mr. Lake is, I find, very high.

[39] There are rules and requirements for all drivers:

(1) Be licensed

(2) Operate a fully functioning and safe conveyance

(3) Be of sound mind and sober

(4) Be insured

(5) Follow the rules of the road.

[40] These are neither complicated nor difficult. They are absolutely necessary to ensure that everyone is safe.

[41] Mr. Lake’s driver’s license was conditional. He was required to take his prescribed medication, to address his epilepsy, to ensure that he was capable of operating his conveyance in a safe manner. He had a long history with the MTO and his treating physician regarding this need. He had a long history of disregarding his physician’s prescription and treatment. His poor decision to not take his medication, despite his prescription, license conditions and recent seizure, elevates his moral blameworthiness.

[42] While a conditional sentence is available, it is not appropriate. In these circumstances, for this offender, a conditional sentence would not meet the principles of sentencing highlighted above. Furthermore, given the history of non-compliance, exacerbated by the poor history of MTO convictions, raises concerns for the safety of the public.

[43] The appropriate sentence is 2 years less one day custody, a driving prohibition for 10 years, s.109 order for 10 years, a DNA order and a s. 743.21 order.

Released: October 17, 2023. Signed: Justice Angela L. McLeod