Court File and Parties

Citation: R. v. Fretz, 2008 ONCA 507 Date: 2008-06-24 Docket: C48341 Court of Appeal for Ontario

Before: Cronk, Gillese and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jason Fretz Appellant

Counsel: Irwin Koziebrocki for the appellant Michelle Campbell for the respondent

Heard and released orally: June 20, 2008

On appeal from the sentence of Justice Linda M. Walters of the Superior Court of Justice imposed on January 17, 2008.

Endorsement

[1] The appellant was convicted of two counts of criminal negligence causing death. The convictions arose from a car accident on November 6, 2005. On that day, the appellant consumed alcohol and then drove his car on the Queen Elizabeth Highway, in an erratic "out of control" fashion, at speeds in excess of 140 kilometres per hour. His vehicle crossed three lanes of traffic and struck a car that was parked on the shoulder of the highway. The two people in the parked car were killed instantly.

[2] The appellant was sentenced to two years less a day incarceration, three years probation and a ten-year driving prohibition. He appeals against sentence. He also applies to admit fresh evidence of the rehabilitative activities in which he has participated since the time of sentencing and that shows he continues to suffer from post-traumatic stress disorder as a result of the accident.

[3] The appellant's primary ground of appeal is that the sentencing judge erred in failing to impose a conditional sentence. He argues that the sentencing judge erred by placing undue weight on the principles of general deterrence and denunciation, and ruling out the possibility of a conditional sentence ab initio.

[4] We disagree. The sentencing judge clearly considered the availability of a conditional sentence. However, she found that given the circumstances of this case, which include the driving offence involving reckless conduct and the consumption of alcohol, the objectives of denunciation and general deterrence had to take precedence. The sentencing judge was fully aware of the appellant's youthfulness, and the other mitigating factors including the appellant's lack of prior driving offences, the fact that he is a gifted athlete, and that he has excellent family and community support.

[5] The fresh evidence shows that the appellant has continued to suffer tremendously from guilt and remorse. However, the sentencing judge was fully aware of the appellant's suffering and took it into consideration at the time of sentencing as well.

[6] In respect of the driving prohibition, however, no reasons were given for imposing the prohibition for ten years duration. We are satisfied that a reduction to five years is appropriate as a longer period would unreasonably hamper this young man's future employment prospects.

[7] Accordingly, the appeal is allowed in part, and the sentence is varied to reflect a reduction of the driving prohibition to a period of five years. In all other respects, the appeal is dismissed.

"E.A. Cronk J.A."

"E.E. Gillese J.A."

"David Watt J.A."