Ontario Court of Justice

Date: 2014-08-13 Court File No.: Guelph 14/1054

Between: R. — and — M.K.

Before: Justice of the Peace Thomas Stinson

Heard on: May 5, 2014

Reasons for Judgment released on: August 13, 2014

Counsel:

• Marilyn Dolby, counsel for the prosecution
• The defendant M.K. on his own behalf

JUSTICE OF THE PEACE STINSON:

[1] Early on the afternoon of September 14, 2013, M.K., the defendant, who was then seventeen years old, was driving a truck eastbound on County Road 109 in the Township of Wellington North. The truck was pulling an unplated, homemade utility trailer. The trailer swayed, became detached, and veered into the shoulder of the roadway. Tragically, Mark Machado, who would be turning sixteen in a couple of weeks, was riding his bicycle westbound. He was struck by the trailer and he subsequently passed away on October 3, 2013 from the injuries he suffered in this collision.

[2] A mechanical investigation determined that the trailer was in an unsafe condition and was improperly attached. Mr. M.K. was charged, by way of an information laid under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (hereinafter referred to as the "POA") with four offences pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (hereinafter referred to as the "HTA"). On May 5, 2014, in front of me, Mr. M.K. pleaded guilty to two of the charges he was facing. He pled guilty to one count of operating a motor vehicle with an improper means of attachment, pursuant to section 80 of the HTA. He also pled guilty to one count of operating an unsafe motor vehicle, pursuant to section 84 of the HTA. Upon Mr. M.K.'s admission that the allegations, as presented by the crown, were substantially correct, I convicted him of these two offences. I then ordered that a presentence report be prepared with respect to M.K., and his sentencing hearing was adjourned until today, August 13, 2014.

Sentencing Options

[3] In deciding what the appropriate sentences should be for these two charges, I first must consider what my options are. Jail may only be imposed by me if the legislation creating the specific offences provides for jail. In Mr. M.K.'s case, jail is not available to me as a sentencing option. Both sections 80 and 84 of the HTA set out a range for fines if the vehicle in question is a commercial motor vehicle. In Mr. M.K.'s case, he was not driving a commercial motor vehicle. Therefore, in the absence of anything specific and relevant in the sections of the HTA under which Mr. M.K. has been convicted, I am governed by the general penalty provision, found in section 214(1) of the HTA. It states as follows: "Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500." There is no provision for imprisonment as part of this general penalty. Nor, as part of the general penalty, do I have any ability to suspend Mr. M.K.'s driver's licence for any period of time.

[4] I also have the option of placing Mr. M.K. on probation, pursuant to section 72 of the POA. However, the possible conditions which I can attach to a probation order are quite limited. For example, I cannot impose a community service order as a condition of probation on Mr. M.K. because the offences for which he has been convicted are not potentially punishable by jail.

Background Information

[5] I need also to consider the background information with respect to M.K. that has been provided in his presentence report. He was taken into care by Family and Children's Services at the age of six, and he has had difficulties and challenges in school. He has been diagnosed with Attention Deficit Hyperactivity Disorder.

[6] Since this tragic incident, he has stopped attending school, advising that his schoolmates began referring to him as "the killer" which led to him experiencing thoughts of hopelessness and anger. Since the accident, he has also been attending for counselling, and he has expressed remorse to his counsellor regarding this incident, and is concerned about how he could make amends for what has happened.

Sentencing Principles

[7] The goals or objectives of sentencing that apply to all offences include general and specific deterrence, rehabilitation, and protection of the public.

[8] General deterrence involves deterring the public generally from committing the offence. It is the most important sentencing goal for most regulatory offences. While it is obvious that there is nothing that I can do, and nothing that M.K. can do, that can bring back Mark Machado, I must do everything that I can to prevent such a tragedy from recurring. The offences which Mr. M.K. committed are relatively minor ones; but the consequences of him having committed them have been unbearably great. General deterrence requires that Mr. M.K.'s punishment be sufficiently large enough, within the range legally permitted, to send a message to all drivers that vehicles and trailers must be safe and properly attached. As this case shows, the consequences can be tragic and catastrophic if they are not.

[9] Specific deterrence involves deterring the specific offender before the court from committing the offence again. It is also an important goal of sentencing in regulatory offences. In this case, M.K. has pleaded guilty to the charges he is facing. He has thus spared Mr. Machado's family from having to sit through his trial on these charges. His presentence report and his demeanour before me today satisfy me that he is truly remorseful about what happened and that he would likely do anything if he could rewrite the events of last September 14. However, I am concerned that, according to his adoptive mother and others, M.K. continues to drive too quickly and irresponsibly. I am hopeful that he has learned the lesson that not driving carefully and safely can result in irreparable tragedies.

[10] Rehabilitation of the offender is generally given less weight with regulatory charges than criminal ones. In this specific case, it could well be helpful for M.K. to be under the supervision of probation.

[11] Protection of the public is an important consideration for offences where public safety is an issue. However, the specific events of this case were so random that, aside from the principle of general deterrence, it does not need to be addressed by me.

Victim Impact

[12] I have heard today the victim impact statement of Sandra Machado, the mother of Mark Machado. I appreciate, and I am certain that M.K. does as well, that Mark Machado's family have suffered a great and unfair loss. I do not know whether they will be able to forgive M.K. for what he has done. The burden that they will continue to feel cannot be alleviated by anything this court can order M.K. to do.

Sentencing Decision

[13] In summary, the maximum penalties I can impose on M.K. would be $500 fines for each of the two charges and a two year period of probation. Mitigating factors that go to M.K.'s credit are as follows:

[14] He has pleaded guilty, thus saving the court the time and expense of a trial, and saving Mark Machado's family the stress of going through that process.

[15] M.K. has no prior record of having been convicted of any criminal or regulatory offences.

[16] I believe that he is truly sorry for what he did, and for the awful consequences of his actions.

[17] Because, however, the consequences of his actions were so severe, his penalties must be towards the higher end of the possible range.

[18] I am therefore imposing a fine of $400 for each of the two offences, plus the mandatory surcharges. I am also placing M.K. on probation, pursuant to the provisions of section 72(1)(b) of the POA, for a period of eighteen months, and the statutory conditions of section 72(2) shall apply. These are that he shall not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; he shall appear before the court as and when required; and he shall notify the court of any change in his address. Given the tragic circumstances of this case, I am also, pursuant to section 72(3)(d) of the POA, adding a term to his probation order that M.K. be required to report to a probation officer as directed and be under the supervision of that officer for the term of his probation.

[19] I wish to express my sincere sympathy to Mr. Machado's family and friends for the terrible loss which they have suffered.

Released: August 13, 2014

Signed: Justice of the Peace Thomas Stinson