Court and Parties

Date: January 31, 2023 Ontario Court of Justice Central West Region

His Majesty the King -and- Scott Watson

Sentencing Proceeding conducted: December 15, 2022 Decision and Reasons issued: January 31, 2023

Appearances: R. Branton, for the Crown G. Read and self, for the defence

Statutes Considered or Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Cases Considered or Cited

• Ontario, Legislative Assembly, Hansard, 41st Parliament, 1st Sess, No 185 (9 June 2016)
• R. v. Laycock, 1996 Carswell Ont 4137
• R. v. Martinez
• R. v. McBride, 2010 Carswell Yukon 185
• R. v. Pellerin, [2006] O.J. No. 5184
• R. v. Stupar, 2015 ONCJ 350
• R. v. Trigiani, 2001 Carswell Ont 4233
• R. v. Ward, 2017 BCPC 40
• R. v. Watson, 2022 ONCJ 220
• R. v. Kinch, [2004] O.J. No. 486
• R. v Nur, 2013 ONCA 677
• R. v. Hamilton and Mason (2004)

Decision of the Court

[1] For the reasons set out below, I sentence Mr. Watson to a period of custody of forty-five days, and a driving licence suspension of four years on count one. I impose a penalty of thirty days in custody on count two, to be served concurrently. I impose no financial penalty.

Background and Evidence

[2] Mr. Watson comes before the Court for sentencing, having been convicted of the offences of careless driving cause death (s. 130(3) of the HTA), and careless driving simpliciter, (s.130(1) of the HTA). Evidence in relation to the second count clearly establishes that a result of that driving behaviour resulted in significant bodily injuries to a pedestrian, which were described in my decision on the merits in this case, as found in R. V. Watson (supra).

[3] The penalty provisions allow for a fine and custody, and specifically, in the case of the careless driving cause death or bodily harm, up to two years.

[4] The Court is assisted for sentencing by a number of pieces of evidence, which include: a. A copy of Mr. Watson’s criminal record b. A copy of Mr. Watson’s MOT (driving) record c. A pre-sentence report d. A victim impact statement, and e. A doctor’s note relating to Mr. Watson’s status.

[5] In addition, the Court drew the parties’ attention to the proceedings of the Legislature, as set out in Hansard, as the offence of careless driving cause bodily harm and careless driving cause death, along with the enhanced penalty provisions were enacted.

[6] It is clear Mr. Watson is unwell. He suffered significant injuries as a result of the incident, which are set out in the decision on the merits of the charges.

[7] In the course of the trial, dates had to be either adjourned as a result of his sometimes same-day visits to the emergency department or scheduled with an eye to ongoing health challenges. His health problems relate largely to breathing and oxygenation.

[8] Until the time of the events giving rise to these charges, Mr. Watson worked as a professional truck driver. He was licensed to operate large trucks as well as motorcycles. His work schedule as a truck driver is not readily available to me.

[9] The criminal record is dated and only tangentially relevant, except that it is suggestive of problems relating to alcohol and non-prescription drugs.

[10] Mr. Watson’s driving record is unremarkable.

[11] The pre-sentence report includes the following: The offender also mentioned that he attended an eighteen day rehabilitation centre in 2004 for his three year weekend use of crack/cocaine. He indicated that he recognized his use was becoming a problem for him financially. He has reportedly abstained since that time.

[12] At the same time, the pre-sentence report provides the following information: The offender reported he has not drank [sic] any alcohol for the past five months, as he just decided to stop. Previously, he advised he consumed alcohol on the weekends only, when he may drink six beers up to twenty-four beers. He noted this pattern has occurred over the past twenty years, dependant on the weekend. He indicated that he never felt his drinking was a problem and added that his drinking never affected his employment. Regarding drug use, he advised that he used to smoke marijuana on a daily basis for the past twenty years but stopped in January 2022. He added that he still eats the odd marijuana edible.

[13] The medical report filed in the course of the trial makes no mention of intoxicants. While it may be reasonable to anticipate toxicology studies were completed, there is simply nothing to indicate this.

[14] The seeming inconsistency between those observations was not canvassed in any evidence, nor discussed in submissions.

[15] The pre-sentence report includes comments that Mr. Watson expressed remorse for the consequences of his driving (“he feels really bad that someone died and the other person suffered injuries”). He made no comments in relation to remorse as part of the sentencing hearing. I note that during the trial itself, Mr. Watson took the position that he had acted at all times with care and attention required of a prudent driver, which stands in contrast to his expression of remorse.

[16] Mr. Watson is now medically unable to drive and does not foresee driving for an extended period of time, as a result of his medical conditions, including the injuries sustained as a result of the collision in this case.

Position of the Parties

[17] Crown seeks a period of custody, in the range of sixty to ninety days, as well as a driving license suspension for up to two years.

[18] The defence position adopts the need for a driving suspension, but suggests that custody is both inappropriate, particularly in light of Mr. Watson’s health, and also unnecessary in the circumstances of this case. In the event a financial penalty were to be imposed, defence seeks relief from minimum fine under s.59(2) of the POA.

[19] Both parties rely on a litany of cases. In my read of them, they could be summarized as acknowledging that custody is an available and fit sentence, but not necessary.

[20] The parties did not provide any caselaw arising from the newly enacted provision creating the offence under s.130(3) of the HTA and its specific sentencing provisions.

[21] Counsel for Mr. Watson concedes that a cynic may look at the net result of his submissions to be an almost inconsequential penalty. He urges that in forming a fit sentence, I need to consider all relevant factors, including Mr. Watson’s remorse, the consequences he has suffered as a result of the incident, as well as his abiding and ongoing debilitating medical status.

[22] In particular, counsel for Mr. Watson reminds the court that the victims were crossing the road where pedestrians are not authorized to cross, that is, where there are no traffic control mechanisms, such as stop signs, traffic control signals or cross walks. In counsel’s submission, Mr. Watson may not have needed to be prepared for the possibility of someone crossing where the victims were in fact crossing. This suggests a lower level of culpability on the part of Mr. Watson.

[23] The Crown in particular focussed attention on the intent of the legislative intent, and in particular the need to better protect vulnerable users of the road, enshrined in s.130(6) of the HTA, as follows: (6) A court that imposes a sentence for an offence under subsection (3) shall consider as an aggravating factor evidence that bodily harm or death was caused to a person who, in the circumstances of the offence, was vulnerable to a lack of due care and attention or reasonable consideration by a driver, including by virtue of the fact that the person was a pedestrian, cyclist or person working upon the highway.

Analysis and Conclusions

[24] As noted, I am not aware of any sentencing decisions arising from conviction after trial pursuant to the relatively newly enacted s.130(3) of the HTA and the related penalty provisions. There are a number of decisions reported arising from guilty pleas and joint submissions on penalty.

[25] As a result, I turn first to the legislative debates in Hansard, which describe the legislative intent of enacting the new provision in relation to careless driving causing death or bodily harm. The following comments are included, and seem to set the tone for a legislative amendment: This bill aims to fill the gap between less and more severe offences, providing additional charging options to both law enforcement and our courts. It aims to recognize and provide a tool for collisions that result in serious injury or death by creating a separate offence of careless driving causing death or bodily harm. Bill 213, if passed, would increase penalties under this new category, making a clear distinction between careless driving and careless driving causing death or bodily harm. It will also give police officers more time to conduct an investigation, and collision reconstructionists the time they need to do these often painstaking investigations. Under the proposed new category, fines would be a minimum of $2,000 to a maximum of $50,000. The driver could face a maximum of two years in prison, the maximum allowed under provincial statute, as opposed to the current maximum for careless driving, which is six months. Their driver’s licence could be suspended for up to five years. Their sentencing options will include the requirement to complete a road safety or driver training course, as well. Ultimately, the goal is to have penalties in place that discourage careless driving and encourage good choices behind the wheel. But we will also use this opportunity to help promote public awareness of the threat posed by motor vehicles in the hands of the wrong person. And finally, we will draw attention to the fact that when a motorist is careless and hits a cyclist or a pedestrian, the outcomes are much more significant. With Bill 213, both our officers and our courts will have the opportunity to send that very clear signal that driving with due care and attention matters, arguably more so when it comes to our most vulnerable road users. (Hansard, supra, at 10012, the Hon. Cristina Martins)

[26] I have taken time to review the numerous cases cited by the parties. In my view, the decision by S. Ford Clements, J in R. v. Stupar, 2015 ONCJ 350 provide an effective framework for my decision.

[27] I am particularly mindful of the following reflections:

[39] Whether the driving was careless is dependent upon the acts or omissions of the driver, not the consequences. See: R. v. Kinch, [2004] O.J. No. 486 at paras. 51-53. Nonetheless, the fact that Mr. Stupar’s driving caused Ms. Walsh’s death is a factor that is appropriate to take into account when considering a fit sentence for his careless driving. As the Ontario Court of Appeal noted in R. v. Martinez, [1996] O.J. No. 544 at para. 11: “The appellant's momentary distraction or preoccupation obviously caused him to drive without due care and attention. The consequences of his carelessness were objectively foreseeable and added to his moral culpability in the circumstances.”

[41] In R. v Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (Ont.C.A.) at para. 83, Doherty J. wrote: “...moral culpability is generally reflected in a mens rea requirement”. While the consequences of Mr. Stupar’s conduct must be consider in determining a fit sentence, his level of moral blameworthiness, which is less than the fault requirement for dangerous driving, must also be considered. As noted in Martinez at para. 10: “ We do not think much is to be gained by attempting to grade the appellant's driving within the range of driving which would constitute Careless Driving. It will suffice to say that the appellant failed to keep a proper lookout that is he failed to drive with due care and attention...”

[42] The fundamental principle of sentencing, codified in s. 718.1 of the Criminal Code, is that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Proportionality has been said to be “ … the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender” . See : R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129 (Ont.C.A.), at para. 87.

[60] This is a difficult case. The theory of denunciation parallels general deterrence and it is the irresponsible behaviour that society seeks to denounce because the conduct offends our communal values. Using denunciation to justify harsher penalties because of the outcome arguably misapplies that principle. The target of denunciation like general deterrence should be conduct. If we shift the focus from blameworthy conduct to an unfortunate outcome we risk undermining the effectiveness of denunciation and may improperly rationalize substantial increases in penalty. The harm or outcome caused by a crime and the moral culpability of the offender are two distinct components of the seriousness of the crime. The degree of moral culpability is equated with the degree of responsibility, while the gravity of the offence is left to be considered in the context of the harm caused. Ultimately the sentence must be proportionate to the seriousness of the offence as determined by these two distinct variables. Where two offenders engage in identical risk-taking conduct their moral blameworthiness cannot differ simply because chance produced different outcomes.

[28] I agree that the consequences of the events on the day giving rise to these charges are severe. One victim died from injuries, another suffered serious bodily injury. The victim impact statement attests to the lifelong consequences beset upon the surviving victim, as well as the extended family of the two victims. Their lives are irrevocably and dramatically altered.

[29] Likewise, Mr. Watson’s life has changed dramatically. He too suffered significant injuries, and now faces unrelated medical challenges. He is not presently able to drive, which means he is no longer able to engage in his profession and support his family.

[30] The legislative debates also include the following: Carelessness is the cause of most deaths that result from vehicle-related accidents. By the year 2020, it is estimated that road traffic injuries will become the third greatest contributor to the global burden of disease and injury. These kinds of injuries and fatalities are preventable. In fact, according to the 2012 coroner’s report that I mentioned earlier, of the 129 deaths reviewed, 100% of them were preventable, because all drivers make choices, whether it’s choosing to text and drive, choosing to get behind the wheel after a few beers or, instead, choosing to concentrate on the task at hand, focusing on the road and arriving at their destination safely. (Hansard, supra, at 10012, the Hon. Cristina Martins).

[31] There are significant charges to the community and the public purse. Roads are closed; investigations ensue; other road users experience inconvenience. Significant resources including police, paramedics, ambulance, hospital, rehabilitation, and income supports are engaged. Given the observations, the need for denunciation is heightened.

[32] Mr. Watson has made life choices following the events, such as stopping his consumption of alcohol and marihuana. This suggests he understands a connection between his choice to consume intoxicants and the tragic consequences of these events.

[33] That said, I find his comments on alcohol consumption confusing. While he acknowledges his abstinence from use of crack/cocaine from the time of his participation in rehabilitation, in 2004, the issues of impact of other intoxicants seems not to have had the same impact. He concedes consuming up to twenty-four beer a day on weekends – presumably non-working days - for the last twenty years. He contends he has had not adverse consequences of this level of consumption on his employment. His driving record seems to support this.

[34] At the same time, his use of alcohol continued unabated until only six months ago, a substantial period of time after the event. His use of marijuana continues.

[35] At the same time, Mr. Watson insisted in his evidence during the trial on the merits that he acted at all times with prudence, that he operated with care and attention. I have found that he did not. I was not persuaded by his claim which fails to reconcile with the facts and circumstances of the impact with the pedestrians.

[36] I have found that the victims were on the road. Another motor vehicle was positioned at the stop line next to Mr. Watson’s motorcycle for a red light. Both departed from the stop line at the same time. A passenger in that motor vehicle advised their vehicle had travelled at a reasonable pace but that their vehicle covered some fifty to sixty percent of the distance travelled by Mr. Watson when the passenger observed the pedestrians, and experienced the shock of anticipating Mr. Watson would strike them with his motorcycle. Yet, Mr. Watson professes not to have seen those same pedestrians.

[37] Contrary to the evidence, he maintained that they wore dark clothing, rendering them hard to see.

[38] He suggested they may have crossed his path of travel quickly, in spite of their use of walkers and their advanced years.

[39] Mr. Watson was unable to provide any compelling explanation as to how he failed to note these clearly visible pedestrians. In my view, the suggestions offered by way of explanation were clearly only for the purpose of attempting an innocent explanation for the events, in spite of clear evidence to the contrary.

[40] In my view, Mr. Watson’s driving behaviour fell woefully short of what is expected of a careful driver paying attention.

[41] And, it had tragic consequences.

[42] As a result, I conclude that an elevated penalty is required. Fining Mr. Watson seems to be an exercise in futility, as his financial wherewithal is significantly diminished, in part a result of his own actions.

[43] A driving licence suspension for two years is likely not impactful, as Mr. Watson is already unable to drive. A suspension at the higher end of the range is appropriate in the circumstances.

[44] In terms of custody, Mr. Watson’s behaviour led to the tragic and life altering consequences. While he professes remorse, it seems to have arisen only after the conviction was registered, that is, only once he had to face the reality of having been adjudged culpable. He did not apparently come to accept responsibility on his own assessment of the circumstance.

[45] Mr. Watson comes before the Court with a relatively limited involvement in the criminal or regulatory justice system. The gap in his record goes to his credit.

[46] I am struck by the contrast and inconsistency between his conviction for impaired in 1995, and that it was not until his conviction in 2004 that he undertook rehabilitative treatment for substance abuse. And, in spite of completing that treatment, he continued to consume alcohol and marijuana in significant quantities, while continuing in his career as a professional truck driver.

[47] Mr. Watson’s self-reported use of alcohol and marijuana are strongly suggestive of a cavalier attitude to his responsibility throughout his career as a profession truck driver.

[48] That said, I of course make no finding that he was in any way impaired at the time of these events. However, these observations do provide a lens through which I view much of the remaining evidence. This is particularly the case in relation to Mr. Watson’s assertion that he acted prudently, without any credible evidence to support his own view.

[49] As noted, Mr. Watson did not express any remorse before the court and to the family of the victims. Any information about remorse is only through family and friends, and the author of the pre-sentence report.

[50] This stands in contrast to the perspective shared by Ford, J in R. v. Stupar, as follows:

[29] Counsel emphasized Mr. Stupar’s genuine remorse. Apart from the remorse demonstrated by his plea, which spared the deceased’s family the trauma of a trial, Counsel made reference to the fact that his client has expressed his remorse to counsel, to the probation officer, to the deceased’s family, to his psychiatrist and to the Court. Counsel noted Dr. Erdmann’s comment in the pre-sentence report that Mr. Stupar is “beyond remorse”.

[51] In this case, Mr. Watson insisted on his innocence. He made comments suggestive of what might be called “victim blaming”, which comments were repeated in submissions on penalty. These deflect from accepting that the victims were there to be seen, that Mr. Watson failed for no reason offered to the court to see them, took evasive action only at the last moment and is responsible for the consequences.

[52] As a result, his driving behaviour calls out for a significant penalty.

[53] Of course, I am mindful that any period of custody will be difficult for Mr. Watson. He has significant health challenges, is frequently reliant on supplemental oxygen, and is in a compromised state.

[54] I am also alive to the need for restraint.

[55] That said, Mr. Watson has had two prior periods of custody, one in 1984 and another in 1987.

[56] With respect to the offence under s.130(3), Accordingly, I order him to a period of custody of 45 days. I accept it will be up to any detention facility to accommodate his health needs.

[57] Further, I order that his license be suspended for a period of four years. I make this determination on the basis that he is unlikely to be able to drive for the next two years, and any driving suspension should reflect the consequence for these events, apart from the consequence he brought upon himself. The net result, then, is a driving suspension for two years beyond his expected time of being able to regain his licence.

[58] There will be no monetary penalty.

[59] I will mirror these penalties in respect of the offence under s.130(1), however, having regard to the principle of totality, suspend that sentence.

[60] At the request of defence, I am exercising my authority under s.63(2) of the POA, and direct that the sentence not start until 01 March, 2023. The defendant is to present himself to the Hamilton Police Service Central Station at 165 King William Street, Hamilton, ON, no later than noon, for processing, at which police will take him to the detention centre to serve his sentence.

Issued at City of Hamilton, Ontario, January 31, 2023

His Worship Donald Dudar Justice of the Peace