Court File and Parties

COURT FILE NO.: CR-16-07 DATE: 2017-01-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Heather Noganosh Defendant

Counsel: Steven Scharger, for the Crown Larry Douglas, for the Defendant

HEARD: June 29, 2016; January 5, 2017

REasons for Sentence

E.J. Koke J.

Introduction

[1] On June 29, 2016 Heather Noganosh pleaded guilty to the following offences listed on an indictment dated April 20, 2016:

a) Count 4 of the Indictment: Operating a vehicle on a highway in a manner that was dangerous to the public and thereby causing the death of Andre Veilleux, contrary to section 249(4) of the Criminal Code of Canada. b) Count 5 of the Indictment: Operating a vehicle on a highway in a manner that was dangerous to the public and thereby causing the death of Doreen Veilleux, contrary to section 249(4) of the Criminal Code of Canada. c) Count 6 of the Indictment: Operating a vehicle on a highway in a manner that was dangerous to the public and thereby causing bodily harm to Steven Helderley, contrary to section 249(3) of the Criminal Code of Canada.

The circumstances of the offences

[2] Highway 69 is a provincial roadway which runs between the Town of Parry Sound in the south and the community of French River in the North. It is primarily a two-lane undivided highway, but in various locations an additional passing lane has been added to the southbound and northbound lanes.

[3] Although the additional passing lanes which have been added to the southbound lanes are designed primarily to allow southbound traffic to pass slower moving vehicles, it is not unusual or impermissible for these lanes to be used by northbound vehicles for passing other northbound vehicles when these passing lanes are clear of southbound traffic. Similarly, southbound vehicles may also use the northbound passing lanes for passing other vehicles when these lanes are clear of northbound traffic.

[4] Hwy 69 is located in the heart of cottage country and is known to be very busy on weekends during the summer months.

[5] On Saturday afternoon, July 25, 2015 thirty-four year old Heather Noganosh was operating a Chevrolet Silverado pickup truck northbound on Hwy 69. Ms. Noganosh was a novice driver with an Ontario “G1’” class licence, a classification which required her to be accompanied by a fully licenced driver. Seated next to her was her thirty-six year old sister, Brenda Salerno who was a licenced driver. Seated in the back seat was twenty-nine year old Sheena St. Clair. The three women were returning from a grocery shopping trip to Parry Sound and were on route to the Magnetewan First Nation.

[6] When Ms. Noganosh was about three kilometres south of the community of Point au Baril Station she found herself behind two northbound pickup trucks hauling “5th wheel” camper trailers. Observing that there was a southbound passing lane at this location she decided to enter this passing lane and pass the slower moving vehicles ahead of her. At the point where she entered the passing lane the roadway was downhill and had dashed yellow lines between the northbound lane and the southbound passing lane, indicating northbound traffic could pass if the roadway was clear.

[7] Ms. Noganosh passed the first vehicle, a GMC Sierra pickup truck and then continued to drive in the southbound passing lane at a high rate of speed, presumably with the intention of passing the second pickup truck. At this point the road began to incline uphill and curve to the left with trees and a “rock cut” on both sides of the roadway. Ms. Noganosh’s view of the roadway ahead was obstructed at this point and the dashed yellow line had changed to a solid line.

[8] As she approached the second pickup truck a south bound Jeep Grand Cherokee which was traveling in the southbound passing lane rounded the corner and came into view. Ms. Noganosh responded by swerving to her left into the southbound driving lane in an attempt to avoid a collision with the Grand Cherokee. However, the front right corner of her pickup truck collided with the front right corner of the Grand Cherokee, causing the Jeep to rotate clockwise and into the northbound driving lane. After entering this northbound lane the northbound GMC Sierra which Ms. Noganosh had just passed struck the driver’s side of the Grand Cherokee.

[9] The Grand Cherokee sustained severe damage as a result of the impact and the two occupants, Andre and Doreen Veilleux were pronounced dead at the scene. The GMC Sierra also sustained damage to its front end and after emergency responders extricated the occupants from this vehicle they were taken to the West Parry Sound Health Centre where one of the occupants, Steven Hilderley was diagnosed with broken ribs and a fractured vertebra bone in his back.

[10] On August 4, 2015, after the OPP had completed their investigation, Ms. Noganosh was arrested and charged with these offences. She was released on a Promise to Appear and an Undertaking and has been out of custody and awaiting the disposition of these charges since the date of her arrest.

Circumstances of Ms. Noganosh

[11] To assist the court with sentencing Ms. Noganosh, a Pre-Sentence Report was prepared by Ms. Bonnie Keith, a probation and parole officer with the Ministry of Community Safety and Correctional Services. A Gladue report was also prepared by Ms. Maggie Linklater, who is with the Aboriginal Legal Services of Toronto.

[12] Gladue reports are produced in accordance with the 1999 Supreme Court of Canada’s ruling in R. v. Gladue. Specifically, Gladue Reports pertain to the application of section 712.2(e) of the Criminal Code, a section which directs the courts that all available sanctions, other than imprisonment, that are reasonable in the circumstances, and consistent with the harm done to victims and to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Ms. Noganosh is of Aboriginal heritage and is recognized as a status Indian under the Indian Act.

[13] Ms. Linklater reports that Heather Noganosh is one of 7 children. She is 35 years old. She is Ojibway and was raised on Magnetewan First Nation located north of Parry Sound, Ontario.

[14] Ms. Linklater reports that Ms. Noganosh’s biological father died when she was very young and she was raised by her mother Christina Pitawanakwat and her stepfather, Theodore Pitawanakwat who adopted her when she was 2 years old.

[15] Ms. Noganosh continues to live on the Magnetewan First Nation with her four children, Marquis, age 12, Delsin-Ray, age 10, Tee-Anna, age 2 and Miracle, age 1. She supports herself and her children on ODSP.

[16] Ms. Linklater reports that Ms. Noganosh has been in three significant relationships and became a mother at a young age. Her first relationship was with a man named Cosmo. Cosmo is Marquis’ dad. They did not live together but spent a weekend together. After Marquis was born he visited his son once and then she did not hear from him again.

[17] She met Francis Pegnegabow when Marquis was about 2 years old. He is Delsin-Ray’s dad. They were together for about a year but she left him because of his drinking. She explained to Ms. Linklater that she did not want her boys to be “around that stuff.”

[18] Next, she met Torian Joseph. Torian is Tee-Anna and Miracle’s dad. She explained that they had been “on and off” for the past three years. They are on and off because of his drinking and his smoking “weed”. She explained that he has an anger problem and so she locks him out when he arrives at her home high on “weed” or alcohol and in an angry mood.

[19] On the subject of residential schools Ms. Keith reported that Mr. Pitawanakwat informed her that his mother attended a residential school and that she described her experience in positive terms. His mother was pleased that she learned to read and write English since this enabled her to help her people over the years in completing forms. He indicated that many of the family members on his maternal side have had careers as nurses and doctors and he described his parents as loving family members.

[20] Mr. Pitawanakwat related that he started working at 17 years of age in the construction field. By the 1990’s he was the driver for the Magnetewan First Nation transportation van and he worked in this capacity until 2013 when he retired due to his diabetes and the loss of his left leg. He has subsequently lost part of his right leg and he now walks with two prostheses.

[21] Mr Pitawanakwat noted that Ms. Noganosh’s two boys have strong athletic hockey ability and he supports their efforts. He was proud that this summer they had attended hockey camp and that they are on an all-star team. He indicated when the two boys are not playing hockey they are playing baseball. He and his wife are the drivers for Ms. Noganosh and her children and take them wherever they have to go.

[22] With respect to the environment in which she was raised Ms. Noganosh reported the following to Ms. Linklater:

It was good as I was growing up. Nothing bad happened to me. My parents were very good to me. Public school was good but high school was hard. Public school didn’t teach me how to read so when I got to high school it was really hard. Now with my learning disability it’s a bummer because I can’t read and write, that why I can’t get a job. When I was a teenager we lived on reserve. I liked being on the reserve. I didn’t drink or smoke, I just was not into that kind of thing. That’s not cool.

[23] Ms. Noganosh spoke about her future plans to Ms. Linklater as follows:

I live in Magnetewan with my four children, Marquis, Delsin-Ray, Tee-Anna and Miracle on the reservation. It’s lonely there especially now that I can’t leave my house. If I could, I would take my kids places. I do volunteer my time with Magnetewan Health Centre. I volunteer at Elders Luncheons and the Tiny Tots program once a week. I participate in smudging and workshops and I have gone to see Elders now and then. I look forward to volunteering more at the Health Centre; they said I can come back and I’m happy about that.

I want to go to college and in the future open my own daycare. I want to stay in Magnetewan because it’s safe for my kids and it’s quiet.

Comments from friends, family members and members of the community

[24] Ms. Linklater interviewed a number of Ms. Noganosh’s acquaintances and relatives. Ms. Noganosh’s cousin Lee-Ann provided the following comments about Ms. Noganosh:

She is not a negative person. She always tried to find the good in everything. She’s an awesome mom. She’s a very social mom; very active in their lives. She makes sure they have everything they need. She’s like my best friend or sister. Heather has so much patience.

[25] Ms. Noganosh’s mother Christina who suffers from a disability described Heather as follows:

She’ll come up and see what needs to be done. She provides homecare, attends medical appointments, bathing and cooks us dinner. She’s usually there from 8:30 a.m. until 8.00 p.m. She’s been doing this since Theodore got his double leg amputation six years ago. I need her to be there for us. I’m really happy she’s there to guide and help me.

[26] Ms. Noganosh’s brother Chris commented that:

She is a good person with a good heart. She finds the best in people. She’s a great person to be around. She’s always involved in the community. She always has her kids out. Baseball in the summer. Hockey in the winter. She always puts her kids first. For her being a single parent, I’m super proud of her. It’s such a tragedy that this had to happen to such an amazing person. She would never want to hurt anyone. It really hurts me that she has to go through this on her own.

Our family is such a tight knit crew and when one of us goes down, we all go down too. Since the accident, everyone has felt it. It’s been a super hard year. Both my parents have diabetes and we lost our sister in February. It’s like so much has happened and I wonder when it’s all going to end. It’s just been super hard. It’s just been so hard to hear the things they say in the media. I hope when all is said and done it will all work out for her. Heather is the only person who can take care of my parents. Me and my brothers all work. If Heather isn’t around no one will be there to take care of them.

[27] Mr. Pitawanakwat informed Ms. Keith that Ms. Noganosh is a very good mother to her children. He indicated he has never been in conflict with the law and prior to this incident Ms. Noganosh had never been in trouble with the law either.

[28] According to Mr. Pitawanakwat, Ms. Noganosh attended the local elementary school and she did well there but they basically passed her along and they didn’t seem to care that she could not read or write well. In high school she had a special education counsellor and the educational assistant would help her by reading her the questions and then she would answer verbally. When the weather was bad and the school bus did not run to Parry Sound he would drive her…she never missed a day of high school for which he is very proud.

[29] Lloyd Myke, an elected band councillor at the Magnetewan First Nation advised Ms. Keith that he has known Ms. Noganosh all her life and that she has spoken to the Band Council regarding the court matters. Mr. Myke spoke at the sentencing in support of Ms. Noganosh, and filed a letter signed by the chief and council members in which they expressed that Ms. Noganosh is a very kind and compassionate person, attentive to her parents and children and is an active volunteer within the community. Mr. Myke informed the court Ms. Noganosh keeps her house in an impeccable manner and is a good community citizen. She has never had any issues with alcohol or drugs or cigarettes and is a good young lady.”

[30] Other letters filed by friends and members of the Magnetewan First Nations community were unanimous in their praise of Ms. Noganosh and her commitment to being a good parent, friend, daughter and involved member of the community.

Impact of Ms. Noganosh’s conduct on the victims and the community

[31] The deceased, Andre and Doreen Veilleux were in their seventies and had just celebrated their 50th wedding anniversary at the time of this incident. It is apparent that they played a major supportive role in the lives of their children and grandchildren.

[32] Brenda and Steven Hilderley, who were the occupants of the pickup truck which struck the Veilleux vehicle were 52 years old. They were looking forward to retiring in 4 or 5 years and spending their retirement years traveling in their recently purchased 5th wheel trailer. They were both injured in the collision and continue to experience both physical and emotional discomfort.

[33] A number of victim impact statements were filed with the court. I have included some excerpts from these statements.

[34] Sydney Duncan, who was the Veilleux’ granddaughter and about to commence university studies in Ottawa at the time of the accident wrote the following comments in her statement:

My relationship with my grandparents wasn’t typical. They were extremely involved in my childhood and celebrated everything I accomplished with my family and I. Birthdays, Christmas, even just getting a good mark in school, you name it, they were there. However, when my father left, they decided to partake in our lives even more and help my mother through that. Moreover, they helped Callum and I through that as Mom was so caught in her own emotions that she found trouble in doing some everyday household tasks. Over the few years after, they did everything they imaginably could. Papa helped Mom fix up the house so it was ready to sell. Granny helped Mom organize everything to move it. They cooked dinners when Mom couldn’t find the time or was too busy that day. They even built an in-law suite downstairs to help support my mom financially in our new home. I saw them every day. Papa drove Callum and I to school in the morning and Granny picked us up after school or even drove us to work if needed.

[35] Sydney’s brother Callum wrote:

I just can’t seem to be able to wrap my head around the fact that they aren’t coming home. I didn’t just lose my grandparents; I lost my second set of parents. Whether it was greeting Papa with our special handshake and watching TV together or visiting Granny for talks about how her and my day were, helping her with technology and her making everyone an amazing dinner or lunch. They were always there in our daily lives. They are and always will be the people I look up to the most in the world and they will always be my role models. I hope that someday I can be half the man that Papa was.

[36] The Veilleux’ daughter Christine Duncan wrote:

…five years ago when my husband walked out the door and left me to raise our two preteen children, they were here. When I lost my job and I was struggling financially, they were here. When I couldn’t make ends meet and pay the mortgage, they built an in-law suite and moved in below me; they were here. As a working single parent I relied on them to help me parent my children. When I couldn’t be there for Sydney and Callum they were, driving them to work and school when needed, providing meals, listening and offering words of advice.

When I needed them to help raise my children; they were here.

They are not here anymore. They were such loving and giving people. Their lives mattered. They were my safety net and most days it feels like I am free falling. Since the accident, I have a nervous tic I can’t get rid of that belies my bravery. In an instant my life changed forever and I will never be the same.

[37] The Veilleux’ son Donald Veilleux wrote:

I would like to explain to everyone here exactly who these people were to our lives. They were the embodiment of unconditional love for all of us. Our parents were a shoulder to cry on, a pair of ears to listen, a voice to teach us and provide us with the wisdom of their experiences. They were companions to grow, cry, and laugh with as they came to appreciate us for the mother, uncle, grandson, granddaughter, and fiancé that we’ve become. They were all of this and more.

…My parents loved my sister and I very much. They saw both of us through many ups and downs. They allowed us to make mistakes, but were always there to pick up the pieces. Mom and Dad were always in our corner! They gave us a voice, and made us who we are today. Mom and Dad celebrated our achievements. When we stumbled we were given the guidance we needed. I wish I could hug them and say that to them right here, but I can’t.

[38] Mr. Hilderley wrote:

…having a broken back can seem like a life limiting sentence. We were starting to talk about our retirement years and travelling. Enjoying the variety of sites to see was the reason we had this type of truck and trailer. Our plan was to tour around the warmer climates in the Southern US during our winter months. Now our ability to do this as we had planned is very much in jeopardy.

My biggest concern at the moment is my ability to maintain my standard of work and my employer’s willingness to allow me the latitude to continue as I have. My memory has suffered since this incident and since this is a vital part of what I need to do at work to be successful, I am concerned for my professional future.

…as my wife has been a paramedic for the past 28 years, her role in life is to help people in need, not to be involved in an incident where someone else suffers injury or death. When these actions are out of our control, we want to forget and get back to normal as soon as possible. That is what we struggle to do day after day after day in the hopes that sometime soon, we may once again find peace.

[39] Ms. Hilderley wrote:

…August 11, 2015 was my appointment with the family doctor. He was amazed that we survived the crash. Again this reminded me of how lucky I am to be alive and very sad that I killed 2 people. He diagnosed me with PTSD, post-concussion and soft tissue injuries that could take up to 3 years to heal. He wrote me off work until January 2016 with reassessments monthly. He also prescribed more pain medication, muscle relaxers, physio, psychologist, massage, hot tub soaking and sauna.

I have been accommodated with modified work and hate it. It is steady days auditing ambulance calls. I am trying very hard to accept that this is how I may end my career, which is 4 years away.

February 2016 I started my sessions with a psychologist. I have never cried so much in my life. At this time I have completed 12 sessions and waiting approval for 8 more. I stopped taking the antianxiety/depression medication because I felt more depressed on them.

I continue to have weekly massage, chiropractor, and physio appointments to make it through the days. Some days I find I struggle more with forgetfulness when I am stressed. Monthly I get reassessed for pain management meds. I sure can see why people want to kill themselves when they live with chronic pain. I am still waiting for further treatments and assessments. My sleep is always interrupted from either pain or flashbacks. I often think of the couple that died.

[40] Colin and Lori Mandy were the occupants of the pickup truck which was pulling the 5th wheel trailer in front of the Hilderley vehicle. The pickup driven by Ms. Noganosh struck the rear of the Mandy’s trailer after striking the Grand Cherokee.

[41] Lori Mandy writes:

This accident has since caused me to have nightmares and has triggered what I thought was forgotten memories…I was almost killed in a head-on collision and those memories returned.

This accident on July 25th, 2015 has brought on bouts of unexplained tears, anxiousness…I can’t sleep. To write this statement has been extremely difficult. I am nervous when people tailgate and sometimes will pull over to let the impatient people carry on.

This accident has caused this family financial stress as we had to pay off the loan for our trailer because it was written off by the insurance company. To many a trailer is just a trailer. But to my family it was full of memories. The destruction of our trailer took away our retirement. Took away well needed time to spend together with our children.

[42] Colin Mandy writes:

The trailer we were pulling was partially purchased with funds left to us upon the deaths of my parents. I wanted something that my immediate family could use to remember my mother and father. But this has been taken away from us.

…a big part of me also feels selfish about the loss of our trailer because 2 lives were needlessly taken from their families. My heart goes out to them. I am a confident and steady driver but after the accident it took me months to get back to being confident again. For Lori, it has brought back very bad memories which only time will hopefully heal again.

Principles of sentencing

[43] The fundamental objectives and principles of sentencing are stated in the Criminal Code. They include denunciation, deterrence, the separation of offenders from society where necessary, rehabilitation, the promotion of responsibility, and the recognition of harm done to victims of crime. They require the consideration of aggravating and mitigating circumstances. They provide that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions, other than imprisonment, which are reasonable in the circumstances, and consistent with the harm done to the victims and the community, should be considered for all offenders and in particular for Aboriginal offenders.

[44] Case law reveals that the paramount objectives in dangerous driving cases are general and specific deterrence and denunciation. Although these principles are regarded as paramount, the objective of rehabilitation is not to be ignored, and the principle that a sentence must be proportionate to the gravity of the offence remains an important consideration.

Mitigating and Aggravating Factors

[45] Section 718.2 of the Criminal Code requires me to take into consideration any relevant aggravating or mitigating circumstances relating to these offences. In this case I find that there are a number of aggravating factors which it is incumbent on me to consider. These include the following:

a) Ms. Noganosh was familiar with the risks associated with travelling this section of road, especially on a summer weekend. She had travelled this road on the way to her high school in Parry Sound on a daily basis for many years, and on many other occasions thereafter. b) Ms. Noganosh was travelling at a speed which exceeded the posted speed of 90 kilometres per hour. c) There was no need for Ms. Noganosh to pass these camper trailers. The evidence is that they were travelling at approximately the posted speed limit. d) Ms. Noganosh had the opportunity to pull back into the northbound travelling lane after she passed the Hilderley vehicle…instead she chose to keep moving forward in the southbound passing lane, notwithstanding the fact that her visibility was impeded and the broken line between the lanes had become a solid line. e) Ms. Noganosh was not alone. She was pregnant at the time and so she was placing both her unborn baby and the two passengers in her vehicle at risk, as well as all of the drivers and occupants in the other vehicles in the vicinity. f) Ms. Noganosh made a deliberate and intentional decision to pass. g) Ms. Noganosh’s actions resulted in multiple deaths and physical and emotional injuries to a number of individuals.

[46] I consider the following to be mitigating factors:

a) Ms. Noganosh has been described as a kind and caring mother to her children and daughter to her parents. Her stepfather is a double amputee and her mother lost one of her legs as well. They are very much dependent on her assistance. b) Ms. Noganosh was a novice driver, and was under the mentorship and guidance of the licenced driver seated next to her. c) Ms. Noganosh has never been in trouble with the law before. Her lack of care on this occasion is inconsistent with the way in which she normally conducts herself. d) When she initially pulled into the southbound passing lane Ms. Noganosh crossed a broken centre line and it would appear that she had the necessary visibility to pass the first Sierra pickup truck safely. Her error in judgment occurred when she decided not to pull back into the northbound lane in front of the Sierra, but instead she proceeded to advance in the passing lane even though her visibility was now impeded and the centre line had changed to a solid line. In the circumstances, her actions constituted a momentary lapse in judgment. e) There is no evidence that she was speeding or driving in a careless manner prior to the time she pulled into the southbound passing lane. f) She has pleaded guilty to these offences, thereby sparing the victims from having to attend what would have been a lengthy trial. g) There is evidence in the Gladue report that Ms. Noganosh has experienced remorse about her actions. Her sorrow and remorse was confirmed by her pastor, Pastor Bursma who spoke on her behalf at her sentencing.

Positions of Crown and Defence

[47] The Crown submits that in the circumstances of this case a just and proper sentence includes a custodial order of three and a half years or 42 months. In addition Ms. Noganosh should receive a driving prohibition of 5 years.

[48] Crown counsel reminds the court that one of the main purposes of sentencing in cases such as this is to deter other drivers from driving dangerously and in a way that puts the public at risk. He reminded the court that the accident did not result from a momentary lapse of attention, but resulted from a deliberate decision by Ms. Noganosh. He cites a number of cases in support of his position that 42 months of incarceration represents a fit and just sentence.

[49] Counsel for Ms. Noganosh submits that considering all of the mitigating factors which exist here any custodial disposition should be minimal in nature and the maximum with respect to probation. He agrees that a driving prohibition of any length in time is appropriate.

[50] Counsel for Ms. Noganosh reviewed with the court a number of cases in which persons charged with driving offences received conditional sentences. Although recent legislative changes prevent this court from imposing a conditional sentence, counsel argues that a brief or suspended sentence together with strict conditions would have the same effect as a conditional sentence.

Analysis of what constitutes a just and proper sentence in the circumstances of this case

[51] In my view, many of the cases cited by the Crown in support of his position can be distinguished from the facts in this case.

[52] The Crown cites the 2003 decision of the Ontario Court of Appeal in R. v. Boukchev, [2003] O.J. No. 3944 in which the accused was convicted of dangerous driving which led to the death of a pedestrian. Mr. Bouckchev was sentenced by the Court of Appeal to four years and three months of imprisonment, and his licence was suspended for life. However, in that case, Mr. Boukchev had fled the scene of the accident, initially denied that he was driving and maintained that his vehicle had been stolen. He also had a lengthy criminal record of driving offences, including careless driving and seven convictions for driving while suspended or disqualified, as well as a previous conviction for impaired driving.

[53] In R. v. Regier, 2011 ONCA 557, [2011] O.J. No. 3749, another Ontario Court of Appeal case relied on by the Crown, the Court of Appeal upheld a sentence of 6 years imprisonment on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. In this case however the appellant had a lengthy driving record involving 25 Highway Traffic Act convictions over a period of 28 years. In fact, he was charged with careless driving in relation to another incident near the place of this accident on the same highway within 2 years following the accident in question.

[54] In R. v. Rij [1993] O.J. No. 4381 the accused, who was a professional driver with 17 years’ experience, was convicted of dangerous driving causing death and dangerous driving causing bodily harm and was sentenced to five years’ imprisonment. The court found that the accident was not a result of a momentary lapse or of inadvertent negligence and the accused’s record indicated a considerable lack of responsibility.

[55] In R. v. Hodder [2012] N.J. No. 155, a decision of the Newfoundland and Labrador Court of Appeal, the accused was convicted of dangerous driving causing bodily harm and dangerous driving causing death. The accused was speeding and there was evidence that prior to the accident the deceased, who was a passenger in his vehicle, had told him to slow down. Mr. Hodder, who was only 20 years old at the time of sentencing, had one prior Criminal Code conviction and a driving record which already contained three speeding offences. He was sentenced to 30 months imprisonment and given a five year driving prohibition.

[56] In R. v. Kippax the accused was convicted of dangerous driving causing death and two counts of dangerous driving causing bodily harm. Although his vehicle was not directly involved in the accident, the court found that he was at fault. Mr. Kippax was sentenced to three years imprisonment and was given a 10 year driving prohibition. The court noted that post-crash he pretended that he was not involved. He showed little remorse for the consequences of his driving. He had a criminal record which included related driving offences and numerous recent speeding convictions.

[57] In R. v. Fitt [2011] O.J. No 1961 the accused pleaded guilty to one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm. Mr. Fitt had a record of 19 provincial offence convictions for driving as well as three criminal convictions. Mr. Fitt was sentenced to three years’ imprisonment and subject to a driving prohibition for the duration of his imprisonment and for the following five years.

[58] Finally, in R. v. Marona [2010] A.J. No. 1048 the accused pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm. The accused had a history of drug abuse and domestic abuse and a lengthy criminal record, including nine administrative offences. He also had a long record of driving infractions and accidents. The Alberta court of Queens Bench sentenced him to two years imprisonment and a seven year driving prohibition.

[59] In concluding that Ms. Noganosh’s case can be distinguished from these cases I underscore the fact that Ms. Noganosh has pleaded guilty to these offences, she was a novice driver who was under the tutelage of a more experienced driver, and she does not have a criminal record or a record of driving offences. There is also evidence that she has suffered a significant degree of remorse as a result of this incident and has attended counselling to help her deal with these issues.

[60] Counsel for Ms. Noganosh cites the Ontario Court of Appeal decision in R. v. Ryazanov [2008] OJ. No. 3916. In this case the two accused who were in separate vehicles drove at more than twice the speed limit for about a kilometre and a half on a busy thoroughfare, passing each other and at times leaving little space between each other. One of the accused crashed into a taxi, killing the driver. The two accused pleaded guilty to dangerous driving causing death. The two accused were 18 years old at the time. They did not have criminal records and they had positive pre-sentence reports and had expressed remorse.

[61] The trial judge imposed a conditional sentence of two years less a day, with house arrest for the first year and a curfew thereafter, followed by two years’ probation, plus a four year driving prohibition. The Attorney General appealed the sentence of the trial judge. The Court of Appeal found that the trial judge did not err in principle in imposing conditional sentences. However, the Court of Appeal did find that the trial judge erred by failing to impose sufficiently punitive terms to the conditional sentence so as to reflect the principles of general deterrence and denunciation. The court extended the house arrest condition to the full term of the sentence i.e. two years, and the driving prohibition was increased to seven years.

[62] I note that counsel agree that conditional sentences of imprisonment are no longer available for the offence of Dangerous Driving Causing Death as a result of amendments to the Criminal Code that came into effect in December, 2007.

[63] Counsel for Ms. Noganosh also refers the court to the decision in R. v. Carleton, 2012 MBPC 54. In this case, Mr. Carleton was driving to high school. As he approached a pedestrian corridor he was driving in the left lane, next to the centre of the road. Overhead pedestrian lights were flashing and the Crown agreed that Mr. Carleton did not see these lights. There were cars stopped in the next two lanes to his right. Mr. Carleton assumed that the cars in these lanes were stopped because they were backed up waiting to turn into the busy Sobeys grocery store lot located nearby. In fact, these two lanes were stopped because the deceased, Joanna Storm was crossing in the pedestrian corridor. Apparently, Mr. Carleton did not think or realize there was or could be a pedestrian in the corridor. Just as he drove into the corridor Ms. Storm stepped into the lane he occupied. She was struck by the right side of his vehicle, causing serious injuries and she died later that day. Mr. Carleton pleaded guilty to dangerous driving and accepted full responsibility for the accident.

[64] There was no evidence of speeding by Mr. Carleton or egregious driving at the time of the accident. Mr Carleton was 18 years old, a relatively inexperienced driver and operating under a graduated licensing scheme. He had no prior criminal record but highway traffic record for driving 80 kilometres in a 60 kilometre zone.

[65] At paragraphs 118 and 119 of the Carleton decision Justice M.J. Smith sentenced Mr. Carleton as follows:

118. I find that in this case a short period of incarceration followed by two years of supervised probation with a significant community service component is appropriate and proportional considering the moral blameworthiness of Carleton and the need for an element of deterrence in this sentence. The period of incarceration is 30 days. Although the period of incarceration is short, any period in a correctional institution is significant for a youthful first offender. Combining incarceration with substantial community service will not only result in a proportionate and deterrent sentence, but one which will serve restorative justice and rehabilitative ends.
119. I also prohibit Carleton from driving anywhere in Canada for 18 months. I have considered the length of prohibition in other cases and his youth and individual circumstances in coming to this determination.

[66] I note that the Carleton decision can be distinguished from the case involving Ms. Noganosh since it appears that Mr. Carleton’s actions resulted from a momentary lack of attention on his part but Ms. Noganosh’s actions constituted a deliberate decision on her part.

[67] In the Ontario Court of Appeal decision in R. v. L.(J.) (2000), 17 C.C.C.(3d) 299 the Ontario Court of Appeal rejected the trial judge’s conclusion that there was a set range of 3 to 7 or 8 years of incarceration for the offence Criminal Negligence Causing Death. On the contrary, the Appellate Court noted at para. 2 that:

The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.

[68] In the same case, the Court of Appeal noted at para. 3 that sentencing for the offence of criminal negligence causing death is “…very much driven by individual factors, especially the blameworthiness of the conduct”. (emphasis added).

[69] Although the comments by the court in the L.(J.) case were in reference to the offence of Criminal Negligence causing Death, I believe the same comments are applicable with respect to the offence of Dangerous Driving Causing Death…sentencing is driven by individual factors unique to each case.

[70] In the Ontario Court of Appeal decision in R. v. Lam (2003), 180 C.C.C. (3d) 127 the court attached a chart of recent cases involving sentencing for both the offence of Causing Death by Criminal Negligence and the offence of Dangerous Driving. For the former, the sentences ranged from suspended sentences and probation, to conditional sentences, to reformatory terms of imprisonment and to varying terms of penitentiary sentences, the highest being eight years for a death involving alcohol for an offender with several prior convictions for impaired driving. For dangerous driving cases, the sentences ranged from suspended sentences with probation, to more commonly, conditional sentences of imprisonment to be served in the community ranging from 15 months to 2 years less a day. As I have already noted, it is common ground that conditional sentences of imprisonment are no longer available for this offence.

[71] Quite clearly in my view, the establishment of a “range of sentences” for the offence of dangerous driving is inappropriate. Each sentence must reflect the unique circumstances of the accused and the offence.

[72] Finally, I note that it would be a mistake to postulate that general deterrence can only be effected by incarceration. In R. v. Leask, [1996] M.J. No. 586 the Court of Appeal overturned a one year prison sentence and imposed substantial fines and community service on three young first offenders for assault causing bodily harm. The court ruled unanimously in par. 5 of the decision that:

5. The sentence must be a deterrent one, to discourage these young men and others from engaging in such callous behaviour, but a deterrent sentence does not have to be an incarcetory one. A fine or order of community service, accompanied by supervised probation, can have a deterrent effect if substantial enough…

Conclusion

[73] In my view Ms. Noganosh’s moral culpability resulted from her failure to respond to the changing driving circumstances in which she was travelling after she passed the first pick-up truck.

[74] Sentencing is an individualized process. After giving careful consideration to the sentencing principles set out in the Criminal Code, including the goals of deterrence and rehabilitation, I have concluded that sending Ms. Noganosh to jail for three and a half years as suggested by the Crown would exceed her overall moral culpability. In coming to this conclusion I have considered among many other factors the fact that she is a person who has been raised in the relative security and social isolation of a First Nation environment. A period of incarceration of this length in a Canadian penal institution would have a significant and detrimental effect on her.

[75] In coming to this conclusion that a sentence of three and half years exceeds what is fair and just, I have also considered the circumstances of the offence, Ms. Noganosh’s personal circumstances, the mitigating circumstances and the absence of serious aggravating circumstances such as a period of negligent or careless pre-collision driving, of which there is no evidence.

[76] With respect to the two offences of dangerous driving causing death I have decided to sentence Ms. Noganosh to a period of incarceration of 12 months. For the purposes of the record, that is 12 months on count 4 and 12 months concurrent on count 5. When I consider the consequences of her actions, I acknowledge that a period of incarceration of this length is relatively short, but when combined with a substantial community service order I am of the view that this sentence will serve the principles of restorative justice and rehabilitative ends.

[77] With respect to the offence of dangerous driving causing bodily harm I am sentencing her to 3 months of incarceration, to be served concurrently with the other two offences.

[78] With respect to the two offences of Dangerous Driving Causing Death I am also imposing a period of probation of two years following her release, which are to be concurrent, and I am prohibiting Ms. Noganosh from driving anywhere in Canada for five years. The terms of her probation will include the following standard statutory conditions:

a) Keep the peace and be of good behaviour; b) Appear before the court when required to do so by the court; and c) Notify the court or the probation officer in advance of any change of name or address.

[79] In addition, Ms. Noganosh must:

a) Report to probation services, (i) Within two working days after her release from custody; and (ii) Thereafter, when required by her probation officer and in the manner directed by her probation officer. b) Perform 200 hours of community service over a period not exceeding 24 months, as directed by her probation officer; c) Attend, participate and complete counselling, as may be directed by her probation officer.

[80] I am forced by government policy to impose a victim surcharge fine of $600. That is $200.00 for every indictable offence for which she is found guilty. I have no idea how a person who is raising 4 children and whose only source of income is ODSP can pay such a fine but I understand that the legislature provides me with no discretion and I must therefore impose this fine. The legislation does permit me to give Ms. Noganosh time to pay and I am therefore giving her two years from the date of her release to pay this amount.

Mr. Justice E.J. Koke (SCJ) January 5, 2017