R. v. QUIGLEY 2017 ONSC 389

Court File No. CR-15-282

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

GERALD QUIGLEY

REASONS FOR SENTENCE and SENTENCING

BEFORE THE HONOURABLE JUSTICE MCCARTHY

on SEPTEMBER 8, 2017 at BARRIE, Ontario

Appearances:

C. Peters Counsel for the Provincial Crown G. Pickard Counsel for Gerald Quigley

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

WITNESSES

IN-CH CR-EX RE-EX

No Witness Examinations

Transcript Ordered....................... Nov 16/17 Transcript Completed..................... Jan. 31/18 Ordering Party Notified.................. Jan 31/18

FRIDAY, SEPTEMBER 8, 2017

SENTENCING

McCARTHY, J. (Orally):

Gerald Jeffrey Quigley, (Defendant) appears before me today for sentencing.

The Trial

On April 13th, 2017, I found the Defendant guilty of criminal negligence causing death and guilty of the lesser included offence of dangerous driving causing death as a result of a multi-vehicle accident which occurred on March the 5th, 2014. That accident claimed the life of Karen Mitchell-Derbyshire. Pursuant to the principle in R. v. Keinapple, the charge on the lesser and included offence of dangerous driving cause death has been conditionally stayed.

The facts in support of the conviction are set out in my reasons delivered on April the 13th, 2017. Briefly, I found that the Defendant failed to inspect the air brakes on his tractor-trailer on the morning of the accident; the Defendant knowingly took his tractor-trailer out on the highway that day without conducting that inspection; that in operating the tractor-trailer on the highway he either failed to notice or simply ignored the fact that his tractor-trailer was demonstrating insufficient brake force; and that in causing a rear end collision with a panel truck ahead of him on the highway and forcing it over into the oncoming lanes of traffic and into collision with two oncoming vehicles, the Defendant caused the death of Ms. Mitchell-Derbyshire.

The Crown's Position

The Crown seeks a sentence of 7 to 8 years of incarceration together with a driving prohibition of 15 to 20 years.

The Crown argues that aggravating factors include the Defendant's utter lack of insight into both the severity of his crime and the harm that he has caused. The Crown also points to the evidence of Officer Bolstad at the sentencing hearing. The pre-offence period shows discrepancies between the log sheets and the GPS records consistent with the Defendant forging those same logs. Although this is not directly relevant to the offence, it does demonstrate an overall pattern of failing to comply with legal requirements which are designed to ensure that commercial motor vehicles can be operated safely on public highways.

In addition, it is obvious from the evidence that the air brakes would not have deteriorated into the condition that they were found in by inspecting officers between the January/February 2014 safety inspection and the date of the accident. Had the Defendant bothered to check the air brakes in the days and weeks leading up to the accident, he would have discovered that they were unsafe. Instead, the Defendant put the safety of the public at risk in neglecting his legal duty to inspect the air brakes in accordance with the governing regulations.

The fact that the Defendant was guilty of operating another tractor-trailer with unsafe air brakes a mere seven months before the fatality is a further aggravating factor. Having received the ticket for the offence of operating a tractor-trailer with a major defect in July of 2013, it must have been clear to the Defendant that it was incumbent upon him to conduct daily safety inspections as per the regulations. Instead, he blithely operated the tractor-trailer in question in the days and the weeks leading up to the subject accident, either without bothering to inspect the brakes or doing in a slipshod and unreliable manner. The blameworthiness of the Defendant's conduct on March the 5th, 2014 is, thus, quite high: he deliberately put the safety of the public at risk by operating a large, dangerous and fully loaded commercial vehicle on the highway when he knew that the air brakes had not been properly inspected; he clearly understood that such an inspection was both legally required and necessary to help ensure public safety.

The Defence Position

The Defence suggests a sentence of 2 to 4 years. The Defence reminds the Court that it cannot take into account the criticisms levied against the Defendant by the victims or their suggestion for sentence. The pre-sentence report reveals that the Defendant was for 25 years a consistently employed professional driver with an average driver's record. He takes care of his 76 year old mother. He is in a stable relationship with a supportive common-law spouse. Since being unable to drive, the Defendant has been forced to seek social assistance. The Crown is unfair when it suggests that the Defendant has no insight into his crime; in fact, the pre-sentence report suggests that the Defendant lives with an unenviable amount of guilt.

Principles of Sentencing

Under s. 718 of the Criminal Code, R.S.C. 1985, c. C-46 (the Code), the fundamental purpose of sentencing is to contribute 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:

a) To denounce unlawful conduct; b) To deter the offender and other persons from committing offences; c) To separate offenders from society where necessary; d) To assist in rehabilitating offenders; e) To provide reparations for harm done to victims or the community; and f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

Section 718.1 of the Criminal Code requires that a sentence be proportionate to the offence and the degree of the offender's responsibility. Section 718.2 of the Criminal Code requires that sentences should be similar to sentences imposed for similar offences. As well, all other reasonable sanctions but imprisonment should be considered.

Analysis

I have considered the submissions of the parties, the case law presented, the victim impact statements filed and read out in open court, the pre-sentence report, the Defendant's criminal record, the expert opinion of Officer Bolstad and all of the relevant sentencing principles. I have factored in my findings at trial which undergirded the convictions on the offence as charged. I have considered what I find to be aggravating factors at play: the fact that the Defendant was ticketed for operating a tractor-trailer with a major defect just seven months before the date of the present offence leads me to conclude that not only was there an element of criminal neglect on the Defendant's conduct but also an element of deliberateness. It is evident that the Defendant was prepared to operate the tractor-trailer on the highway without conducting daily air brake inspections when he clearly knew and understood the importance of them.

I find that the evidence, both at trial and at the sentencing hearing shows a willingness and tendency of the Defendant to ignore commercial motor vehicle regulations, eshew safety precautions and trivialize logs and records.

There are several mitigating factors: this is not a case involving excessive speed, the consumption of alcohol or non-prescription drugs. The Defendant's driving record is not deplorable. The Defendant was, for some 25 years, a regularly employed truck driver. He appears to be a contributing member of society. The care and support he provides to his mother is noteworthy and admirable.

Nevertheless, the blameworthiness of the Defendant cannot be mollified or ignored. His deliberate endangerment of public safety is neither excusable nor justifiable. This was no momentary lapse of attention; nor was it an isolated incident of forgetfulness. Clearly, the Defendant chose to neglect his statutory duties knowing that, in doing so, he was putting the lives of other motorists at risk.

The Ontario Court of Appeal touched upon blameworthy conduct for these types of offences. In R. v. Linden, [2000] O.J. 2789 at para. 3:

"...the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends towards demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required."

In my view, denunciation is a critical aspect of sentencing in this case. The deliberate and reckless conduct of the Defendant led directly to the loss of life of an innocent motorist. The neglect seen here must be strongly denounced. Nothing short of a significant prison term will suffice in order to advance the principle of denunciation. Having said that, the term of imprisonment suggested by the Crown is excessive. The absence of alcohol, drugs and/or speeding satisfies me that in the case at bar, the sentence should not drift into that higher end of the range.

In imposing a prison term of 5 years together with a 15 year driving prohibition in her R. v. Bhangal, an unreported decision of Hourigan, J. (as he then was) dated December the 3rd, 2013, the trial judge commented upon his concern that the Defendant in that case was a "danger on our public highways". He went on to add that, "...driving is a privilege and... public safety must come before commercial gain". I share that sentiment and would apply it to the matter before me. The Defendant has proven to be a danger on our public highways. He has also proven himself to be a dishonest keeper of inspection records and logs. These are documents designed to ensure that commercial motor vehicles are maintained in a suitable condition for operation on highways and that commercial drivers are fit and able to safely operate those vehicles amidst other vehicular traffic on our roadways. Specific deterrence demands that the Defendant be prevented from driving again for a good long time.

Mr. Quigley, would you please stand.

I sentence you to a term of incarceration of 5 years. I find that such a term of incarceration is appropriate in all of the circumstances. I understand that you have been prohibited from driving since the commission of this offence. That being the case, there shall be a further driving prohibition of 11 and one half years from today's date. For greater certainty, that driving prohibition shall remain in effect until March 5, 2029 which is the 15th anniversary of the accident in question. In addition, criminal negligence causing death is a secondary offence. Having regard to the seriousness of the offence and minimal intrusion that a DNA order will have on Mr. Quigley's life, there shall be an order to issue for the taking of samples of bodily substances from Mr. Quigley that are reasonably required for the purpose of forensic DNA analysis, pursuant to s. 487.051(1) of the Criminal Code. That is the sentence of the court.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and accurate transcript of the recording of R. v. Gerald Quigley in the Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No.(’s) 3811-4-20170908-090522-10-MCCARTJOH which has been certified in Form 1.

January 31, 2018

Shannon Heryet ACT #3389634078