Court File and Parties

Court File No.: 12572 Location: St. Thomas, Ontario Date: November 1, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Brandon Hughes

Before: Justice J.C. George

Heard: October 5, 2012

Reasons for Judgment Released: November 1, 2012

Counsel:

• D. Walker, for the Crown
• W. Glover, for the accused Brandon Hughes

GEORGE J.:

Background / Facts

[1] Impaired by alcohol, Brandon Hughes made the decision to operate a motor vehicle on Fingal Line, west of St. Thomas in Elgin County. There were two passengers - Mr. Hughes' good friends Kyle Payne and Andrew Herbert. All three were intoxicated.

[2] Their time together began early in the afternoon on May 26, 2012. They attended at least two different residences throughout the afternoon and evening, and although I do not have a precise indication as to how much alcohol Mr. Hughes drank, it is clear a significant amount was consumed by everyone, and over an extended period of time.

[3] At or around 4:30 p.m., they attended the residence of Robert Smith where they remained until shortly after midnight. Having consumed alcohol at the Smith residence, arrangements were made for Mr. Hughes and his two friends to spend the night there. In the early morning hours of May 27, 2012 he did, however, drive.

[4] At some point between 12:30 and 1 a.m., with Mr. Payne and Mr. Herbert as passengers, Mr. Hughes drove from the Smith residence. As he was travelling eastbound on Fingal Line towards St. Thomas, he approached another vehicle who was forced to leave the roadway as a result of Mr. Hughes' erratic driving. This other motorist could not immediately call and notify the police as she did not have a phone and was returning home after picking up her daughter.

[5] Mr. Hughes continued to travel eastbound at a high rate of speed and at an 's-curve' at the bottom of a hill on Fingal Line, lost control of the vehicle, at which point he left the roadway and struck a telephone pole. Mr. Payne was ejected from the vehicle, while Mr. Herbert remained inside. Mr. Hughes survived the crash and left the scene on foot, eventually meeting up with two people who were sitting outside their residence, in the backyard. They allowed Mr. Hughes, who was injured and bleeding, to use their water hose to wash off. Mr. Hughes then made several frantic phone calls, and eventually a passing ambulance (which had not been called as a result of this accident) was directed to the scene. Both passengers were pronounced dead.

[6] Mr. Hughes then fled on foot and was only apprehended after the police employed the use of their K-9 unit. At the time of his arrest, Mr. Hughes smelt strongly of alcohol and was unsteady on his feet.

[7] Mr. Hughes was transported to the hospital. As he was unable to provide breath samples, blood was taken with his consent. A report was received from the Center of Forensic Sciences which detailed two separate readings which were significantly different from each other. This discrepancy raises issues of reliability - nonetheless there is no dispute Mr. Hughes was significantly impaired at the time he operated the motor vehicle. Mr. Hughes, as well, provided a cautioned inculpatory statement to the police.

[8] On July 25, 2012 Mr. Hughes pleaded guilty to two counts of impaired driving causing death. Mr. Hughes remained in custody after his arrest and was not released on bail until August 2, 2012. The total time spent in pre-plea custody amounts to sixty-seven days. Since his release, Mr. Hughes has been subject to the strictest possible bail terms essentially being confined to his home twenty-four hours a day subject to certain exceptions.

Sentencing Hearing

[9] On October 5th, 2012 lengthy sentencing submissions were made on behalf of the Crown and Mr. Hughes. A pre-sentence report was prepared by probation, and I received several victim impact statements, some of which were read in court by their authors and some by the Crown. All of the statements, in their written form, were filed as exhibits.

[10] Mr. Hughes has no prior criminal record. To my knowledge, he has no prior driving record. The report was generally positive, and more than adequately detailed Mr. Hughes' background and life circumstances. It is fair to say that Mr. Hughes' childhood was marked by some instability, highlighted by disputes as between his parents, mobility issues, and some Children's Aid Society involvement. The death of a close friend (mentor) seems to have had a significant impact on him as well. He has been involved in what could be described as an 'on again-off again' relationship with his current romantic partner. Their first child passed away at birth. They have since given birth to their second child, who is now approximately a year and a half old. Although Mr. Hughes and his partner are not currently living together there is apparently a plan whereby the partner and child will soon move in with Mr. Hughes' mother.

[11] Mr. Hughes has an incomplete education as he left school in grade nine. He advises the author of the pre-sentence report that he does plan on addressing this issue and has taken some steps to obtain his General Equivalency Diploma (GED). He is currently unemployed and has been relying on others to support him financially.

[12] Mr. Hughes is an alcoholic. His abuse of alcohol has continued on for several years now and has clearly affected his relationships with friends, family and has contributed to his limited education and sporadic work record. This is an unresolved issue. There appears to be some insight on Mr. Hughes' part in that he does not justify or minimize his alcohol use. He knows he is an alcoholic. He acknowledges and seems to believe he needs help. To this point he has described his drinking as a "release" and as "a way to get through the day". He has not consumed alcohol since May 26, 2012.

[13] There is, as well, a history of mental health issues. He has before attempted suicide and has received counselling, although there has been no formal diagnosis. Mr. Hughes describes feeling sluggish, having difficulty getting out of bed sometimes, having trouble sleeping and indicates that he experiences bad dreams. There appears to be issues of depression. This issue is unresolved as well. The incident itself, these proceedings, and the fact he caused the death of two close friends is, and will continue to exacerbate these problems. Significant intervention through counselling and treatment is going to be required.

[14] The most dramatic, and heartbreaking aspect of the sentencing hearing was the presentation of the victim impact statements. They were detailed, and powerful. They described a pain that is cutting and which will clearly have a lifelong impact on Mr. Payne and Mr. Herbert's close friends and family. Two people lost their lives in a violent manner - the suddenness, and senseless nature of it, has clearly contributed to the pain and is something for which their loved ones will grapple with forever. I would say as well that the nature of the relationship and closeness of Mr. Hughes and the deceased, makes this all the more difficult and confusing, as the victim's families are left to sort out the conflicting feelings of anger, sadness, and perhaps even some sympathy towards Mr. Hughes.

[15] To some extent Mr. Hughes' family is victimized as well. Their behaviour didn't cause these deaths, yet they will lose their loved one for a significant period of time, and will have afterwards a firsthand view of the inevitable emotional difficulties that Mr. Hughes will struggle with. They have, thankfully, not lost their son forever, which is a tragic reality for Mr. Payne and Mr. Herbert's families. At the conclusion of the hearing Mr. Hughes read a prepared apology to each of Mr. Payne and Mr. Herbert's families. It was, I believe, heartfelt and sincere and was a clear expression of his remorse.

Positions of the Parties

[16] The Crown submits that a sentence of six years (concurrent on each count), in addition to any pre-plea custody, is the appropriate sentence. It is acknowledged that there is no formula, tariff, or fixed set of sentences that apply to cases such as these but that in light of the requirement that the court give paramount consideration to the principles of general deterrence and denunciation, a significant penitentiary sentence is required. The Crown highlighted the aggravating features of this case including the fact two people lost their lives; the level of impairment; the combination of speed, erratic driving and the general danger Mr. Hughes posed to others who met him on the road on the night in question; and his seeming aversion to treatment and counselling which was apparent at his bail hearing where he testified about seeking treatment "only if it were reasonable" and how, in his view, "going to counselling every day would be a waste of time".

[17] The defence submits that a sentencing range of two to five years is appropriate, contending that a sentence at the lowest part of the range would suffice. It is argued that a two year sentence coupled with a three year probationary period would allow the court to stress the need for deterrence as well as facilitate a lengthy period of community supervision. This dual benefit approach would, I'm told, strike the appropriate balance in stressing the denunciatory aspects of the sentence while paying due regard to rehabilitation which, although clearly a secondary concern, should not be ignored. In highlighting the mitigating factors, it was pointed out that Mr. Hughes had no prior criminal record and no significant driving record. There were several others, including the fact Mr. Hughes pleaded guilty at what could only be described as the earliest possible opportunity; the fact he provided a full confession at the earliest stages of the investigation which actually assisted law enforcement in that Mr. Hughes was not seen driving specifically nor was he found at the scene; his remorse, and candour with the pre-sentence report's author.

Law

[18] While determining a fit sentence in cases such as these is not an easy task, there are some firm guiding principles which must inform the court's decision. First, there is no formula to apply. Each case is unique; each set of circumstances different from the other.

[19] It is accurate to say that there should be an emphasis on general deterrence and denunciation. Although reasonable people can disagree about the effectiveness of jail as a tool for anything specific to an accused, there can be no doubt that a denunciatory message can be achieved in the form of a jail sentence. How effective this is in actually reaching and impacting the intended recipients of that message (the public at large), is debatable.

[20] I am of the view that, first in terms of specific deterrence, that objective has likely already been met for someone like Mr. Hughes. His lack of record, great remorse, the nature of his relationship with the two victims, the fact he had to initially endure the grieving process while incarcerated, and the angst and stress associated with simply going through this process, has likely deterred him from engaging in this kind of behaviour again. I may be wrong - I'm not naive enough to think that the powerful grip of alcoholism would be incapable of prompting, once again, the kind of stupidity associated with combining the consumption of alcohol with driving. This is just the general impression I have.

[21] Second, that if Mr. Hughes is at all serious about engaging in rehabilitative efforts, jail will probably do little to assist. Again, I may be wrong - there is programming available in each of the Provincial and Federal correctional systems, and it is my great hope he avails himself of this. Rehabilitation, counselling, therapy, all with a view to defeating an insidious disease such as alcoholism would clearly be best done in the community, with the loving support of family and friends, and with service providers doing their work in a setting other than jail. This would be the optimal way to do it.

[22] Focussing on rehabilitation as the primary objective, however, does not adequately denounce this kind of conduct. That does not mean I am to ignore rehabilitation, or any of the other principles and objectives of sentencing, rather they cannot be primary in my mind.

[23] As it is important to consider other courts' approach to sentencing in impaired driving cause death cases, paying particular attention to what Ontario's Appeal Court says on the subject, I am thankful to counsel for their assistance in this regard.

[24] The Crown and defence have generally agreed upon, and presented to me, the most up to date authority on sentencing for these offences in Ontario. Counsel for Mr. Hughes additionally referenced the case of R. v. Ruizfuentes 2010 MBCA 90, a Manitoba Court of Appeal decision which thoroughly analyzes several cases from across Canada, and makes some general statements about what would typically be the appropriate ranges of sentence. It stands for the proposition that, typically, the range of sentence for a first-time offender is two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years. This all being expressed while recognizing there is no cap on what the sentence could be. Life in prison is permissible, but should clearly be reserved for the worst possible offenders. This, obviously, is not one of those cases. The question then is, where on the spectrum does it fit?

[25] To that end, the Crown brought to my attention several Ontario Court of Appeal, and Ontario Superior Court decisions, which mostly deal with multiple fatalities and all involved several aggravating factors other than what's inherently evil in the offence itself. In R. v. Ramage 2010 ONCA 488, the Court of Appeal upheld a sentence of four years imprisonment, confirming the level of deference to be afforded sentencing judges and once again stressing the paramount importance of general deterrence and denunciation. This particular case involved an extremely aggravating set of driving facts - Mr. Ramage drove his vehicle, impaired, with his close friend as a passenger. Mr. Ramage's vehicle struck two oncoming vehicles, with the impact causing his passenger's death and seriously injuring the driver of one of the other cars. Although the case at bar involves two fatalities, and the Ramage matter one death, and one victim suffering what was described as debilitating injuries, they are not dissimilar. Although I wouldn't necessarily describe Mr. Hughes as an exemplary citizen as he has certainly had his difficulties in the past which reflect poorly on him, I am mindful of the trial judge's comments in Ramage, where he states:

My responsibility in this matter is to impose a sentence on an offender who is an exemplary citizen, who has committed a serious crime with tragic consequences….It is not an easy task but the message of general deterrence must be met.

[26] The Appeal court, in reviewing the sentencing aspect of the case, indicated the following (para. 70):

Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge's evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing sentence.

[27] I must note however, that although factually I find these cases to be similar, there are distinctions that could be considered in mitigation for Mr. Hughes. First, although proceeding to trial and putting the Crown to their burden is never an aggravating factor, it is not mitigating either. Mr. Ramage fought his case, asserted his rights, and disputed most everything with a view to beating the charge. He proceeded to trial, and then on to a lengthy appeal. It took years for his case to move through the courts to a final resolution. This prolonged the suffering of the victim's families; expended significant court resources; and engaging in this process at the very least delays any expression of remorse. In some cases it is outright contrary to a meaningful expression of contrition. Mr. Hughes on the other hand has, at his instance, moved this case through the system swiftly. I would say it could not have been possible to do this any quicker than we have. Mr. Hughes waived his right to a trial. He pleaded guilty within two months of the offence, and any delay after that (which was minimal) was at the behest of either counsel or the court in requesting the preparation of reports or to enable me to consider the matter further. Courts often pay lip service to this being a mitigating factor - in my view, it must mean something, and it must be to Mr. Hughes credit in a tangible way.

[28] The case of R. v. Junkert 2010 ONCA 549, is an Ontario Court of Appeal decision involving the sentencing of an offender who was found to have operated his vehicle while impaired, who was speeding, and who left the roadway in a residential neighbourhood striking a pedestrian, a parked car, and a cement pole. Although Mr. Junkert had no prior record the Court of Appeal upheld a custodial sentence of five years. The facts in Junkert, as I understand them, were particularly aggravating in that the pedestrian was sent flying several feet, landing face first into a parked car and dying instantly. Mr. Junkert was estimated to be driving in excess of 90 km/hr in a residential neighbourhood. I note as well that Mr. Junkert did not plead guilty and proceeded to trial. It took in excess of two years for this matter to reach trial, and additional time for the appeal process to be completed.

[29] In R. v. Kummer 2011 ONCA 39, the Court of Appeal confirmed the imposition of an eight year jail sentence. This case, to me, represents a most aggravating set of circumstances, both as it relates to the facts and to the response of the accused. The facts, as they're found on page three of the decision, speak for themselves, both detailing Mr. Kummer's driving, and the horrific nature of the deaths. One passenger in Mr. Kummer's vehicle and two twelve year old children in another vehicle perished in a fire that raged after and as a result of the collision caused by Mr. Kummer. This matter involved three fatalities, and Mr. Kummer had what was described as a 'significant' driving record, including prior convictions for careless driving, and failing to report an accident. I understand, having regard to the trial judge's reasons, that there were concerns relating to the level of remorse expressed by Mr. Kummer at sentencing. In no conceivable way, are the circumstances here similar to the case before me.

[30] I was referred as well to Justice Trotter's decision in R. v. Luskin 2012 ONSC 1764, an Ontario Superior Court decision. Without reproducing the facts, I am mindful of Justice Trotter's comments at paragraph 28 of his decision, where he indicates:

To properly give effect to the significant aggravating factors present in this case, and to reflect the principles of general deterrence and denunciation, a sentence at the very upper end of the continuum of sentences for this type of case is warranted. I am unable to meaningfully distinguish this case from R. v. Kummer. Applying the law conscientiously, it is my view that a sentence of 8 years imprisonment is appropriate for this horrific cluster of offences.

[31] As already indicated, I cannot come to the conclusion that this case is indistinguishable from Kummer. By extension, I am unable to agree with the Crown's submission that the case at bar is similar to Luskin, a position taken by the Crown in their submissions.

Pre-trial Custody

[32] Prior to his release, Mr. Hughes was in custody at the Elgin Middlesex Detention Center (EMDC) for 67 days. Prior to the relatively recent amendments to the Criminal Code, it was the common practice for courts to grant credit on a 2:1 basis for any time spent in pre-sentence custody. That is no longer allowed. Section 719(3) of the Criminal Code indicates as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[33] The reason for Mr. Hughes' initial detention in custody was not on account of a prior criminal record/conviction nor is he before me charged with a bail violation. As such there is no statutory bar to me granting enhanced credit at the permissible rate of 1.5 days for each day served. The question then is, do the 'circumstances' justify it. I have and will continue to struggle with this threshold. Some courts (with counsel seemingly tailoring their submissions to this) have focussed almost exclusively on harsh jail conditions. Although I did hear submissions, and there was some evidence in the bail hearing transcript, confirming the less than ideal conditions at EMDC while Mr. Hughes was detained there, I don't feel it is always necessary to hear that. In my view, provided there is no information suggesting an accused contributed to the difficulties (i.e. lockdowns) while at the detention facility, and absent evidence to suggest an accused has intentionally delayed proceedings for the purpose of receiving enhanced credit, the mere fact one has lost their eligibility for remission/parole eligibility can be the 'circumstances' justifying the granting of enhanced credit. It is the only fair way to approach this, contrasting it with an accused person who pleads guilty on day one and the unlikelihood of that person serving the full sentence imposed.

[34] I will, therefore, allow a further credit of 33 days. The total amount of pre-trial custody then is 100 days.

[35] The next question is whether or not the court should grant credit for some or all of the time Mr. Hughes has been in the community on strict bail conditions? Some courts refer to this as a 'credit' towards the amount of time spent in custody; in the case of R. v. Cook 2012 ONSC 3265 it refers to this as a factor in mitigation of sentence. Either way, it is open for a sentencing court to reduce a sentence on account of or proportional to the time an offender has spent on bail and subject to strict terms (i.e. house arrest).

[36] Credit, however, is not automatically granted when there has been an imposition of significant bail terms. Several factors impact on whether or not it is appropriate. Justice Rosenberg, in R. v. Downes (2006), states the following:

.....like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.

[37] This needs to be read together with Justice Rosenberg's earlier comments wherein he concludes that:

....time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.

[38] Several factors disincline me to grant credit here. I'll mention the two that concern me most. First, the pre-sentence report suggests the use of marijuana by Mr. Hughes as a form of stress relief, and although it's not entirely clear, one could infer in how that information was presented to me that he continued to use subsequent to his release on August 2, 2012. If true, this is troubling.

[39] Second, recognizing and appreciating the limited time he was on bail, Mr. Hughes made no effective use of this time in seeking a start on his path to recovery, or to address his addiction issues in any way. It appears the inevitable imposition of a penitentiary period dissuaded him from doing so, rationalizing that it wouldn't be worth his while at this point. I'm not impressed with that approach, especially given what I heard at the bail stage where it was strongly suggested that this was in fact something he wanted to pursue while awaiting sentence.

[40] The above, however, must be balanced with the fact that a significant error was, in my view, committed when Mr. Hughes was first detained and denied his constitutional right to bail. Beyond the obvious fact that he was incarcerated at a time when he was to be presumed innocent, it without a doubt impacted the nature of the terms I ultimately imposed, as at that time the presumption of innocence no longer attached. That is, bail was not obtained until after his guilty plea. At that stage, I felt compelled to impose a strict term of house arrest, notwithstanding the fact Mr. Hughes had no prior record. There was at no point any basis to conclude that Mr. Hughes wouldn't follow the terms of a release. In spite of this he was in effect serving a sentence. It didn't necessarily have to be that way.

[41] I must also be mindful of the fact that courts are often of the view that allowing for credit in these circumstances is inappropriate where the accused, when initially being granted bail on reasonable terms, and on account of their inability to abide by those terms, is re-released on the more stringent form. For instance, in Cook, the court does not grant credit, largely on the basis that Mr. Cook, who was initially released by the Police on a Promise to Appear with an undertaking, was rearrested which led to the imposition of stricter terms. This is not the case for Mr. Hughes.

[42] In the end, and after balancing all of the points just made - paying particular attention to the circumstances which led to Mr. Hughes' release, fairness dictates that I consider this a factor in mitigation of sentence. I will in a moment address how this impacts the quantum.

Conclusion

[43] In imposing sentence, I am mindful of the fact that some will think what I'm about to do is too harsh. Some will think it is much too light. Some will speak of the message this sends to the community. The reality is, as much as I wish I could, this sentence won't remove the pain felt by Mr. Payne and Mr. Herbert's loved ones and friends. Their anguish will continue. I do hope today brings some closure to this chapter, and will at least allow them to start the healing process.

[44] Taking into account all of the principles and objectives of sentencing; being mindful of the fact that a sentence must be proportional to the gravity of the offence and the responsibility of the offender; and after balancing the primary objective of denouncing this kind of lawful conduct with Mr. Hughes' particular circumstances, I believe a sentence in excess of what was imposed in Ramage (4 years) and less than what the Crown seeks here, is appropriate.

[45] Taking into account the 100 days of pre-plea custody, as well as the credit I'm prepared to allow for the time spent on house arrest – which taken together amounts to about six months, I believe a global sentence in the range of four and one half (4.5) years is necessary. That leaves a further four years to be served in the penitentiary.

[46] In addition, I prohibit Mr. Hughes from operating a motor vehicle on any street, road, highway, or public place for ten years.

November 1, 2012

Justice Jonathon C. George