Court File and Parties

Court File No.: CR-19-30000369-0000 Date: 20220407 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Yu-Lan He

Before: R.F. Goldstein J.

Counsel: Patrick Woods, for the Crown Robert Warren, Q.C., for the Defence

Heard: February 25, 2022

Reasons for Sentence

1. Overview

[1] I convicted Ms. He of one count of dangerous driving causing death. She now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] On January 24, 2018, Yu-Lan He killed Marwan Chabou. Ms. He was driving a Ford Escape southbound on Warden Avenue in Toronto just south of Bamburgh Circle. She was not exceeding the speed limit. Mr. Chabou was crossing Warden Avenue at a crosswalk when Ms. He struck and killed him. The light was red. Ms. He drove through the red light. She did not stop. Mr. Chabou died from blunt force injury to the head and torso. I found as a fact that the light had been red for at least 11 seconds when Ms. He drove right through it. Speed, alcohol, drugs, and distraction (such as from a cell phone) were not a factor. Ms. He was not momentarily distracted. The key factor in this tragedy is that Ms. He had a prolonged period of inattention and therefore a marked and substantial departure from the standard of care expected of a reasonable driver.

(b) Circumstances of the offender

[3] Ms. He was born in the People’s Republic of China in 1962. She immigrated to this country in 2004 and became a Canadian citizen in 2008. She is married with two children. Prior to immigrating to Canada, she had been a high school biology teacher. She is now a homemaker and currently principal caregiver to her 15-year-old son. She also occasionally takes care of her grandchildren, the children of her older son. She is a devout Christian and attends regular church service. As Mr. Warren put it, her religious faith is not a mitigating factor but a description that Ms. He lives in a small world devoted to her faith and her family. Mr. Warren supplied several letters of support for Ms. He. All of the letters – including one from her driving instructor, who said that she took her lessons very seriously – speak of a woman who is kindly, a true Christian, and a devoted friend and member of the community who regularly volunteers to help others.

(c) Impact on the victim

[4] Marwan Chabou’s wife, Nuha Baour, filed a victim impact statement. The statement is absolutely heartbreaking. Mr. Chabou, Ms. Baour, and their daughter Phoebe came to this country as refugees from Syria. Their two sons are refugees in the United States and the United Kingdom. Ms. Baour stated how their town was destroyed in the Syrian civil war. The family was forced to leave and after many travails came to Canada, where they started a new life. Ms. Baour described how her husband was a man of integrity, faithful to his family and to God, and a protector and provider. He struggled to learn English when he came to Canada but adapted and worked hard, often at difficult labour-intensive jobs, to provide for his family. Ms. Baour described how the loss of her husband – and Pheobe’s loss of her father – has been heart-wrenching. Mr. Chabou was looking forward to a reunion with his sons and meeting his grandchildren. Those things will never happen now.

3. Legal Parameters

[5] The maximum penalty at the time of this offence was 14 years imprisonment: Criminal Code, s. 249(4). Parliament has since increased the maximum penalty to life imprisonment: Criminal Code, s. 320.21. Ms. He obviously has the benefit of the lesser punishment. Section 742.1(c) of the Criminal Code prohibits the imposition of a conditional sentence for offences carrying a maximum penalty of 14 years of life imprisonment. The Ontario Court of Appeal struck down that section in R. v. Sharma, 2020 ONCA 478. As a result, a conditional sentence is available in this case. R. v. Sharma is currently on appeal to the Supreme Court of Canada but there has been no decision at the time of writing these reasons. I note that in any event there is currently legislation before Parliament that would repeal that section.

4. Positions of the Crown and Defense

[6] Crown counsel, Mr. Woods, argues that a one-year jail sentence is appropriate, as well as a five-year driving prohibition. Mr. Warren, for Ms. He, argues that I should suspend the passing of sentence and place Ms. He on probation. In the alternative, he argues that a conditional sentence would be appropriate.

5. Case Law

[7] Crown and defence counsel both presented cases supporting their positions. What is clear is that the cases show outcomes ranging from a suspended sentence to multiple years in the penitentiary. A key feature guiding sentencing is the moral blameworthiness of the offender.

[8] In R. v. Linden (2000), 147 C.C.C. (3d) 299, [2000] O.J. No. 2789 (C.A.) the offender had consumed 12 beers, smoked marijuana, drove at a high rate of speed, and ran three red lights. He struck a car after driving through the third red light, killing the victim. The trial judge imposed a sentence of five years. The Court of Appeal commented at para 2:

If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causing death. 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.

The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends toward 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.

[9] In R. v. Nusrat, 2009 ONCA 31, the offender had been street racing. He cut off and collided with a tractor-trailer. The driver was killed. Mr. Nusrat pleaded guilty to criminal negligence causing death while street racing. Mr. Nusrat had been weaving in and out of traffic at an estimated speed of 200 km/h on highway 400. He gave the police a forged insurance slip. The trial judge sentenced him to two years less a day conditional, with probation and a lifetime driving prohibition. Epstein J. found that in the circumstances of this case – street racing that endangered many people – the principles of denunciation and deterrence required a penitentiary sentence, and that a conditional sentence was unfit.

[10] In R. v. Manty, 2006 MBCA 25 the offender missed a stop sign and drove into the intersection. He collided with another vehicle. Three passengers in the other vehicle were killed and the driver was seriously injured. The offender was a young man driving from church to bible camp on a rural road. He had not been drinking, speeding, or using drugs. The trial judge gave the offender a suspended sentence, two years probation and a driving prohibition. He did not appeal the sentence.

[11] In R. v. Muthoka, 2011 MBCA 40 the offender was driving out of a parkade when she accidentally stepped on the accelerator rather than the brake. She panicked, lost control, and struck two pedestrians. Both were killed. She was given a suspended sentence and two years probation, with a ten year driving prohibition. The Manitoba Court of Appeal lowered the driving prohibition to four years. The sentencing judge had found that the offender’s conduct was at the lower end of dangerous driving offences. The Court of Appeal noted that:

While this court recognizes the tragic results for the victims, their families and their community, the gravity of the offences must be balanced against the accused's degree of moral blameworthiness, which in this case is low. In my view, the term of the prohibition, which usually ranges from no prohibition to five years for similar offenders in similar circumstances, was harsh and excessive.

[12] Crown counsel relied on R. v. Patel, 2017 ONSC 4048. In that case, the offender struck a 7-year old girl while she was on her bicycle. The girl was crossing an intersection. The offender was distracted by an argument with his girlfriend. I do not have a copy of the decision by my colleague Sutherland J., but I am told by counsel that he sentenced Mr. Patel to 12 months imprisonment.

[13] In R. v. Singh, 2018 ONSC 4598 the offender was driving a large tractor-trailer southbound in wintry conditions, with ice patches on the road and occasional whiteouts. He decided to pass several slower vehicles, which the trial judge characterized as a risky manoeuvre. When he was passing a pick-up truck, his vehicle stuck a northbound tanker. The driver of that vehicle was killed. The trial judge found that the offender’s driving showed wanton and reckless disregard for the lives and safety of those around him. The offender had no criminal or driving record. He was a professional driver. The trial judge sentenced him to three years in custody and a five-year driving prohibition. That sentence was upheld by the Court of Appeal: R. v. Singh, 2019 ONCA 872.

[14] In R. v. Dunford, 2017 SKCA 1, the offender was driving in a construction zone. There were numerous signs warning of the construction, that people were working, and advising drivers not to pass. Signs also warned drivers to slow to 60 km/h when passing construction workers. Notwithstanding the signs, the offender passed two semi-trailers. As he was passing the second, he saw the victim, a highway construction flag operator, but was too late to stop or miss her. The offender struck and killed her. He had no criminal record but did have a poor driving record. The trial judge sentenced him to two years less a day, and a three year driving prohibition. The Saskatchewan Court of Appeal upheld the sentence, pointing out that denunciation and deterrence are the governing sentencing principles.

6. Mitigating and Aggravating Factors

[15] The key mitigating factor here is that Ms. He has led, up until now, a pro-social life, raising her family and engaging in charitable and religious works. She has never been in trouble with the law or had a driving demerit.

[16] While it is not aggravating that Ms. He had a trial and maintains her innocence, she does not get the mitigating benefit of a guilty plea.

[17] The main aggravating factor here is that Ms. He’s driving was a marked and substantial departure from the standards expected of an ordinary driver. What she did was very dangerous. She stopped paying attention while piloting a lethal weapon through busy city streets.

7. Principles of Sentencing

[18] As the cases have pointed out, the important sentencing principles in dangerous driving cases are denunciation and deterrence. In my view, however, the cases also indicate that the higher the degree of moral blameworthiness, the more likely it is that those principles will play a role. The court must deter potential offenders who engage in high-risk behaviour, such as street racing, or driving while impaired by drugs or alcohol, or dangerous high-speed manoeuvres: see Linden at para. 2. The court must also strongly denounce that behaviour. It places everyone who uses our roads – which is everyone in our society – at risk. Courts have a duty to protect the public from the actions of reckless drivers. There is less of a need to deter and denounce conduct by drivers who are otherwise law abiding and engaged in more transient, less dangerous behaviour.

8. Ancillary Orders

[19] This is not a case where an ancillary order such as a DNA order or a s. 109 weapons prohibition is appropriate.

9. Sentence Imposed

[20] When a person is tragically killed there is often an understandable instinct to punish the killer in a harsh and vengeful way. In our society, which I hope is a civilized one governed by the rule of law, that instinct must be tempered by a reasoned application of the principles of sentencing, guided by the purposes of sentencing, as set out in our Criminal Code.

[21] In my view, Ms. He is morally blameworthy. Her moral blameworthiness, however, falls at the lower end of the spectrum. Her crime was inattention – she was not speeding, street racing, under the influence of alcohol, or engaging in high-risk behaviour. This is not a case like Linden, or Nusrat; it is more like a case of Muthoka, or Manty.

[22] Both parties agree that the principles of sentencing here do not require a penitentiary sentence. I agree with that assessment. As any sentence I impose will be less than two years, I must assess whether a conditional sentence of imprisonment is appropriate as long as I am satisfied that:

First, the service of the sentence in the community would not endanger the safety of the community; and,

Second, the sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[23] See: Criminal Code s. 742.1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.

[24] Ms. He is, of course, an ideal candidate for a conditional sentence. She has led an ordinary, law-abiding life without so much as a hint of trouble with the law. As Mr. Warren pointed out, she has never even had a speeding ticket. I have no doubt that she would comply with all of the terms of a conditional sentence and that she does not present a danger to the community.

[25] In my view, a conditional sentence of 18 months is appropriate. While I recognize that this number is higher than suggested by either counsel, I note that the Crown asked for 12 months incarceration in a custodial facility. An 18 month conditional sentence, while a real sentence, is not has harsh as one where a person is actually in jail. An 18 month sentence served in the community properly balances the sentencing principles of denunciation and deterrence, reflects the lower level of Ms. He’s moral blameworthiness, and takes into account Ms. He’s obvious prospects for rehabilitation. This is not a case where any social purpose would be usefully served by incarcerating Ms. He in a provincial jail.

[26] Ms. He is sentenced as follows: she is to serve 18 months conditional, in the community. She will report to a conditional sentence supervisor within three business days. For the entirety of her conditional sentence, she will be prohibited from driving.

[27] For the first six months of her sentence, she will be under house arrest. She will not be permitted to leave her home except for the following reasons:

• For medical emergencies for herself of an immediate member of her family;
• Once per week on Sundays for religious services;
• Once per week, on a Saturday, for two hours for personal errands;
• When required, to pick up her grandchildren from school and take them back to her home.

[28] For the final twelve months of her conditional sentence the only term (other than not driving) is that she is to keep the peace and be of good behaviour.

[29] Ms. He will also be subject to a 3 ½ year driving prohibition, which commences upon the expiry of her conditional sentence.

Released: April 7, 2022 R.F. Goldstein J.