OWEN SOUND COURT FILE NO.: CR-21-63 DATE: 20240712

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MICHAEL PAUL TAYLOR Defendant

Counsel: Andrea Camilletti, for the Crown Jill Gamble, for the Defence

HEARD: June 3, 2024

REASONS FOR SENTENCE

SPROAT J.

INTRODUCTION

[1] Mr. Taylor was found guilty as follows:

(1) Impaired operation of a conveyance causing bodily harm to Susan Thompson (s.320.14(1) C.C.). (2) Refuse to submit to an evaluation as to whether his ability was impaired by drug or a combination of drug and alcohol (s.320.13(2) C.C.). (3) Dangerous operation of a conveyance causing bodily harm to Ethil McCrabb (s.320.13(2) C.C.). (4) Impaired operation of a conveyance causing bodily harm to Ethil McCrabb (s.320.14(2) C.C.). (5) Dangerous operation of a conveyance causing bodily harm to Susan Thompson (s.320.13(2) C.C.).

[2] I advised counsel of my bottom line ruling that the Kienapple principle did not apply. My reasons are that apart from the fact Mr. Taylor was impaired, he drove in a manner that was dangerous. Mr. Taylor was driving at 99 km/hr in a 70 km/hr zone 16 seconds prior to the collision and he was driving at approximately 60 km/hr when he struck the vehicle stopped at the red light. As stated, by Doherty J.A. in R. v. Ramage, 2010 ONCA 488:

[64] I agree with the distinction between the offences of impaired driving and dangerous driving (or criminal negligence) drawn in Galloway and Andrew. An impaired driving charge focuses on an accused’s ability to operate a motor vehicle or, more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver’s impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focussing on different dangers posed to road safety. Impaired driving looks to the driver’s ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.

[65] In Andrew, the court acknowledged that Kienapple had been applied in cases where there was no evidence of the manner of driving apart from the accident that produced the injuries or death. The court, at p. 308, expressed some doubt as to the correctness of those decisions. I, too, doubt their correctness. I do not regard an allegation that the accused’s ability to drive was impaired by alcohol or some other drug as merely a particularization of the allegation that he or she drove dangerously. As I have tried to explain, the two allegations address different issues.

[3] Convictions were, therefore, entered on all counts. In any event, the sentence would have been the same even if I had entered the Kienapple stays on the dangerous operation counts.

CIRCUMSTANCES OF THE OFFENCES

[4] On April 23, 2021, at approximately 9:45 a.m., Mr. Taylor was driving a tractor trailer unit heading eastbound on Highway 6 into Owen Sound. A Toyota vehicle was stopped in the eastbound curb lane at a red light. A Nissan vehicle was parked immediately behind it. Data from the engine control module of the tractor indicated that it was travelling between 65-54 km/h when it struck the Nissan from behind. This caused the Nissan to be pushed forward into the Toyota. The Nissan suffered extensive damage. A data module in the Toyota indicated that the service brake was on as it was stopped at the intersection on the red light. A module on the Nissan indicated that prior to collision it was braking and had slowed to 4 km/h. As such its brake lights were on.

[5] There was a skid mark caused by the tractor trailer unit within the area where the tractor-trailer stuck the Nissan.

[6] Mr. Taylor was driving at 99 km/hr in a 70 km/hr zone, 16 seconds prior to the collision.

[7] As detailed at length in my reasons finding Mr. Taylor guilty, following the collision, Mr. Taylor was unsteady on his feet. He could not answer simple questions such as where he came from and where he was going to. He told a bystander who observed the accident and EMS personnel that he should not have been driving. He told a police officer that he should not have been driving and that something was not right with his head. On the way to and at the police station he appeared to be sleeping.

[8] A search of the vehicle revealed two empty containers of Trazodone, one container of Gabapentin, three containers of Supeudol, five containers of Oxyneo, and four containers of Methadone. Police found a glass pipe, of the type used to smoke stimulants, opioids or a combination of the two.

[9] Dr. Mayers, a toxicologist employed by The Centre for Forensic Sciences, testified regarding the effects of drugs on the human body and as to the pharmacology and toxicology of drugs and alcohol. He explained that Supeudol is a rapid absorption formulation of Oxycodone and that Oxyneo is a sustained release formation of Oxycodone so that it might only be taken one or two times a day. These pills are designed to be swallowed whole and if crushed can cause an unpredictable amount of Oxycodone to be released in the system. (Over 400 Supeudol pills and over 200 Oxyneo pills were found in the tractor).

[10] Persons using drugs for pain relief build up a tolerance over time so that they require increased doses to achieve the same pain relief. Oxycodone suppresses the central nervous system. If a person ingests more drugs than they can tolerate it makes them sleepy, inattentive, and lethargic and can cause unconsciousness. A person might take more drugs than their body can tolerate if they abstained for a while and then took their normal dose, or if they took a greater dose than normal or if they combined other drugs.

[11] Oxycodone is prescribed for pain relief but is also used recreationally because it gives a sense of euphoria. Methadone can also be prescribed for pain but more frequently is used to diminish an individual’s interest in other drugs to replace other drugs. Gabapentin is prescribed to address certain types of pain that are not addressed by opioids. It can also be used recreationally and is often crushed and snorted. Trazodone is prescribed to treat depression and insomnia. It has a strong sedative effect.

[12] Dr. Mayers testified that these drugs can cause diminished alertness and slower responses. All these drugs depress the central nervous system and can impair the ability to drive by diminishing the ability to pay attention to multiple inputs and by slowing down the processing of information and motor responses.

CIRCUMSTANCES OF THE OFFENDER

[13] Mr. Taylor is 63 years old. He grew up in Toronto. His father was a hard worker, but seldom at home. Mr. Taylor is of Oneida ancestry. His mother attended two residential schools, and then was institutionalized for mental health issues until she was 18. His mother in turn was physically abusive to her children. She had what was referred to as a “nervous breakdown” when he was a child. He left home when he was 18 years old.

[14] Mr. Taylor was a member of the Vagabonds Motorcycle Club from 1985 to 2022. Mr. Taylor suffered serious injuries in a motorcycle accident in 1997, was in a coma for 33 days, and almost died. Mr. Taylor has an extensive criminal record. From 1977 – 2004 he has over 30 criminal convictions and has been incarcerated many times with the longest sentence being 30 months. The offences include a 1977 conviction for impaired driving, a 1981 conviction for driving with blood alcohol in excess of the legal limit, assaulting and obstructing peace officers, and possession of a restricted or prohibited weapon. He has a long list of Highway Traffic Act violations, including in 2010 for following too closely in a commercial vehicle, and in 2014, driving while holding or using a communication device. Since 2000, he has nine speeding violations: (73 in 50 zone; 134 in 100 zone; 70 in 60 zone; 84 in 60 zone; 80 in 60 zone; 78 in 50 zone; 75 in 60 zone; 111 in 90 zone; and 109 in 80 zone.)

[15] In or about 2010, Mr. Taylor was prescribed OxyContin by his family doctor. He suffers from chronic pain and currently takes 800 mg of morphine a day. Dr. Mehta, who treated Mr. Taylor following the accident, advised the author of the Pre-Sentence Report (PSR) that Mr. Taylor reported using, “Fentanyl and crystal meth to stay alert for his job.”

[16] The PSR author described Mr. Taylor as polite and respectful and as expressing remorse for the injuries that he caused. The PSR described Mr. Taylor as lacking empathy for the victims.

[17] The Gladue report provided additional details regarding the residential school attended by Mr. Taylor’s grandmother. It also explains that his mother was a victim of sexual and other physical abuse. Mr. Taylor’s mother lost her Indian status when she married a non-indigenous person, although that status was later restored by legislation.

[18] Mr. Taylor’s sister related that Mr. Taylor’s mother said she was hitting Mr. Taylor in order to try to toughen him up. Mr. Taylor reported that one time his mother tried to kill him and said that she could not stand looking at him.

[19] From 1997, Mr. Taylor was taking prescribed Percocet and Tylenol for pain, and later moved on to be prescribed OxyContin.

[20] Mr. Taylor’s sister reported that just prior to the collision in Owen Sound, Mr. Taylor was in a fragile emotional state. His father and his dog died, and he had problems with his partner of 20 years. He would call his sister sobbing.

[21] After high school, Mr. Taylor completed a graphic arts program. He has, however, worked mainly in Western Canada on pipelines and in Ontario driving a truck. In 2019, he and his sister co-founded a group promoting indigenous arts and culture.

[22] Mr. Taylor had a 20-year relationship that ended in 2021. He has no biological children, but his partner had a son he was close to.

[23] Mr. Taylor is seeing Dr. Mehta and James Loney at Anishnawbe Health in Toronto. He is on a high dose of prescription morphine as well as methadone.

[24] The Gladue writer requested that the Recommendations portion only of the report be sent to the institution at which Mr. Taylor is incarcerated.

VICTIM IMPACT

[25] Ethil McCrabb read a Victim Impact Statement. Mr. Taylor’s tractor trailer hit her stopped vehicle. Her injuries included a broken neck, brain bleed, fractured ribs and pelvis and broken teeth. She had a stroke that led to right side paralysis. She was in an induced coma for 10 days and required surgery to fuse her neck and skull to avoid permanent paralysis. She suffered a traumatic brain injury and excruciating pain.

[26] Prior to the accident, she was extremely active physically and enjoyed social gatherings. Most of the activities she previously enjoyed are no longer possible. She continues to be in pain every day and cannot tolerate large gatherings or noisy settings. Her career as a nurse ended on the day of the collision.

[27] Craig Litster, Ms. McCrabb’s partner, also filed a Victim Impact Statement. He described the shock of seeing her in the hospital, unconscious with a breathing tube. He related the active life she led prior to the collision and how all that has changed. As he said it has been “a long and trying road.” He expressed his gratitude to all of the health care professionals.

[28] Susan Thompson was in the vehicle stopped in front of Ms. McCrabb. She suffered multiple fractures to her neck and back and a severe concussion. For an extended time she could not work or engage in normal activities. She suffered from pain, headaches and anxiety. She was treated by a long list of health care providers. She has improved considerably, but still suffers from dizziness, has difficulty concentrating and remembering and is predisposed to arthritis.

[29] Ms. McCrabb and Ms. Thompson impressed me with the great courage and determination they have demonstrated in striving to recover from their injuries.

AGGRAVATING CIRCUMSTANCES

[30] Section 320.22 C.C. provides that the following are aggravating circumstances:

(a) the offence caused bodily harm to more than one person; (b) Mr. Taylor was being remunerated for driving the transport truck; and (c) the transport truck with a partially loaded trailer was a large motor vehicle.

[31] In addition, there are the following aggravating circumstances:

(a) the devastating life altering injuries of the two victims; and (b) Mr. Taylor’s criminal record, which includes convictions for impaired driving and over 80, and his extensive highway traffic record which includes multiple speeding violations.

MITIGATING CIRCUMSTANCES

[32] The Gladue report identifies intergenerational abuse that I accept has played some part in Mr. Taylor’s criminal history, and which to some extent reduces his moral blameworthiness.

[33] Mr. Taylor has family support and has been receiving treatment and counselling.

POSITION OF THE CROWN

[34] Ms. Camilletti submitted that Mr. Taylor should be sentenced to 7 years imprisonment, a 17-year driving prohibition, a DNA order, and the mandatory s. 109 order for life.

POSITION OF THE DEFENCE

[35] Ms. Gamble submitted that 3 years of imprisonment was appropriate. She did not take any issue with the DNA and s. 109 orders. As to the driving prohibition, she indicated that having the ability to drive is not a high priority for Mr. Taylor.

THE LAW

General Principles

[36] The Criminal Code provides:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 and the harm done to victims or to the community that is caused by 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 to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Gladue Principles

[37] In R. v. Altiman, 2019 ONCA 511, Brown J.A. reviewed the Gladue principles as follows:

[77] Mr. Altiman is an Aboriginal offender, which requires considering as part of the sentencing analysis the principles found in s. 781.2(e) of the Criminal Code. In R. v. F.H.L, 2018 ONCA 83, 360 C.C.C. (3d) 189, this court attempted to synthesize those principles, as elaborated in Gladue and Ipeelee. In F.H.L., at paras. 38-40, this court summarized the proper approach to the application of the s. 718.2(e) principles:

The law, reviewed above, is clear. In order to be relevant to sentencing, an offender's Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed. In what circumstances, then, will an offender's Aboriginal background influence their ultimate sentence? The answer is "not so easily ascertained or articulated": R. v. Whitehead, 2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 60. Clearly, the mere assertion of one's Aboriginal heritage is insufficient - s. 718.2(e) does not create a "race-based discount on sentencing": Ipeelee, at para. 75. Although Aboriginal offenders are not required to "draw a straight line" between their Aboriginal roots and the offences for which they are being sentenced, more is required "than the bare assertion of an offender's Aboriginal status": R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115.

It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel": Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, at para. 54.

The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.

[78] In dealing with the role played by systemic and background factors in the analysis, this court stated, at para. 47: Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation, and deterrence.

[79] In considering the first factor dealing with moral blameworthiness, s. 718.2(e) does not require an automatic reduction of a sentence or a remission of a warranted period of incarceration simply because the offender is Aboriginal: Ipeelee, at para. 71. Instead, the section directs the sentencing judge "to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case": Ipeelee, at para. 75. Part of that inquiry involves ascertaining whether the constrained circumstances of an Aboriginal offender - situations of social and economic deprivation with a lack of opportunities and limited options for positive development - may diminish the offender's moral culpability: Ipeelee, at para. 73.

ANALYSIS

[38] The Crown memorandum of law included the following case summaries:

R. v. Tabanao, 2024 ONCA 85

• Commercial truck driver operating a loaded tractor-trailer travelling about 100 km/h on cruise control failed to slow for stopped traffic, striking a Ford Focus from behind, causing it to burst into flames, and forcing the Ford underneath a Garda truck. in front of it. All four passengers in the Ford were killed instantly and three passengers in the Garda truck were injured. The impact of the collision caused a six-vehicle pile-up.
• Found guilty after trial on four counts of criminal negligence causing death and three counts of criminal negligence causing bodily harm
• Sentenced to 7 years imprisonment, 12-year driving prohibition, 10-year weapons prohibition
• No criminal record, no driving record, no evidence of aggressive driving or being under the influence of drugs or alcohol, positive PSR, sincere remorse, prosocial lifestyle, compliant with the terms of the release, low risk to reoffend
• Court of Appeal upheld the conviction, but reduced the sentence to 5 years imprisonment

R. v. Saini, 2023 ONCA 445

• Commercial truck driver drove through a construction zone with numerous signs and reduced lanes, he failed to slow down or reach to slowed traffic ahead of him and instead struck a vehicle from behind, which set off a multi-impact collision involving 17 vehicles. Four people, including two children were killed. Nine other sustained significant bodily harm, including permanent, life-altering injuries
• Found guilty at trail – 4 counts of dangerous driving causing death, nine counts of dangerous driving CBH
• 76-year old first-time offender, strong family support, no prior driving record, suffered from medical issues
• The appellant did not take responsibility for his actions and appeared to have “no sincere appreciation of how his driving continues to pose a very serious harm to others”
• Sentenced to 6 years imprisonment
• Sentence upheld by the Court of Appeal

R. v. Quigley, 2017 ONSC 389

• Commercial truck driver failed to inspect the air brakes on his tractor-trailer the morning of the collision, and later caused a rear end collision with a panel truck ahead of him on the highway forcing it into the oncoming lanes of traffic, causing a collision with two oncoming vehicles, killing one of the occupants
• Found guilty after trial of criminal negligence causing death (judicial stay/ Kienapple on dangerous driving causing death)
• Accused received a ticket for operating a tractor-trailer with a major defence seven months prior to the offence, some evidence of doctoring logs and records, no excessive speed or consumption of alcohol or drugs
• Sentenced to 5 years imprisonment + 11.5-year driving prohibition (15 years from time of offence)

R. v. Gill, 2017 ONSC 723

• Guilty plea after a preliminary inquiry to Impaired Driving, Dangerous Driving CBH and breach of probation (KPBGB)
• Accused was veering between lanes when he struck a motorcycle from behind, extreme indicia of impairment (fell on top of the victim on the roadway), serious injuries to both occupants of the motorcycle (including broken bones, concussion, skin abrasions, damaged liver, collapsed lung, paralysis for several months, problems with speech and memory loss, herniated bowel). Accused refused to provide a breath sample.
• Prior criminal record, including failing to comply with court orders. Accused on probation at the time of offence, outstanding refusal charge at the time of the offence, remorse
• Sentenced to 4 years, 3 months imprisonment (less 2 years, 3 months PSC) + 5-year driving prohibition + 3 years probation

[39] This case calls for a significant penitentiary sentence. In my view, however, the cases cited by the Crown indicate that a global sentence of somewhat less than 7 years is appropriate.

[40] In Tabanao, the offender was convicted of criminal negligence causing death, an offence punishable by up to life imprisonment, and sentenced to 5 years imprisonment. Like Mr. Taylor he was a commercial truck driver who failed to slow for stopped traffic. Four people were killed and three injured. Unlike Mr. Taylor, the offender had no criminal or driving record.

[41] In Saini, the offender was a commercial truck driver, 76 years’ old with no criminal record. He was convicted of 4 counts of dangerous driving causing death, and 9 counts of dangerous driving causing bodily harm. He failed to slow in a construction zone and struck a vehicle from behind resulting in 17 vehicles colliding, with 4 killed and 9 injured. He received a 6-year sentence.

[42] In Quigley, the offender was convicted of criminal negligence causing death. He was a commercial truck driver who struck a vehicle from behind forcing it into oncoming traffic and one person was killed. He had no prior criminal record. He received a 5-year sentence.

[43] These cases all involved commercial truck drivers who caused fatal accidents and were convicted after trial. Their sentences were 5-6 years. These offenders were less deserving of punishment than Mr. Taylor when you compare their criminal and driving records, but more deserving of punishment given the fatal consequences of their actions and given there were no Gladue considerations. This suggests to me that a sentence on the order of 5 years would be appropriate on the impaired operation-dangerous operation counts.

[44] Mr. Taylor’s case is similar in some respects to Gill, in which the offender caused devastating, life altering injuries although to one victim and not two as in the case of Mr. Taylor. He had the mitigating factor of pleading guilty to impaired driving and dangerous driving causing bodily harm. The offender had a criminal record, although not as extensive as Mr. Taylor, and there were no Gladue considerations. The offender was sentenced to 4 years and 3 months imprisonment. In my view, Mr. Taylor is deserving of greater punishment than the offender in Gill.

[45] In considering what is a fit sentence I must also take account of Gladue considerations. Mr. Taylor's mother attended residential schools and did not get the care and attention she needed. In turn, as is often the case, she was mentally and physically abusive to her own children. Given the circumstances of his childhood it is not surprising that Mr. Taylor would end up with a lengthy criminal record and addiction issues.

[46] There also need to be a significant consecutive sentence for the distinct offence of refusing to submit to a drug test.

[47] In determining what is a fit sentence, I also must factor in that Mr. Taylor is 63 years old and suffers chronic pain. As such, incarceration will be more difficult and punishing than it would be for a younger person in good health.

CONCLUSION

[48] On counts 1, 3, 4, and 5, Mr. Taylor is sentenced to imprisonment for 5 years, all sentences to be concurrent.

[49] On count 2, Mr. Taylor is sentenced to imprisonment for 6 months, which sentence is consecutive to the other sentences.

[50] Mr. Taylor shall be prohibited from driving for 15.5 years, and there shall be a DNA order, and a s.109 weapons prohibition for life.

[51] As requested, in addition to the Reasons for Sentence, I will attach a copy of the Recommendations section of the Gladue report to the warrant of committal.

Sproat J.

Released: July 12, 2024