CITATION: R. v. Carter, 2014 ONCJ 795
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
WALTER CARTER
PROCEEDINGS ON PLEA OF GUILT
BEFORE THE HONOURABLE MR. JUSTICE R. LALANDE
On November 3rd, 2014, at Sudbury, Ontario.
APPEARANCES:
A. Kurke Counsel for the Crown
C. Bourgeois Counsel for the accused
T A B L E O F C O N T E N T S
page
ARRAIGNMENT 1
FACTS READ IN BY THE CROWN 4
VICTIM IMPACT STATEMENTS 23
SUBMISSIONS BY MR. KURKE 48
SUBMISSIONS BY MR. BOURGEOIS 59
STATEMENT BY WALTER CARTER 66
SENTENCING 67
EXHIBITS page
One synopsis of facts 4
Two book of photographs 4
Three composite of book of victim 21
Impact statements
Four composite of book of Walter Carter’s 22
Reference letters
November 3, 2014
MR. KURKE: Your Honour, this is Walter Carter before the court. There are two informations we’ll be proceeding on today. I should have spoken to my friend about this aspect. On the seven count information, we’ll be proceeding on counts one, two, and seven, with an indictable election on count seven. The other ones are straight indictable. The other information is the two counts alleging offences from January 30th, 2014. A summary election has already been made. We’ll be proceeding on count two. If my friend is content to keep them all together, I’d ask to strike the election and make an indictable election on that information as well.
MR. BOURGEOIS: That’s fine, Your Honour. That’s agreed.
THE COURT: So on consent, the previous election is marked struck, and Madam clerk, if you can include by indictment.
MR. BOURGEOIS: That’s fine, Your Honour.
THE COURT: Thank you.
MR. KURKE: Thank you. Those four counts, please.
THE COURT: All right, thank you. Please stand, sir.
COURT CLERK: Walter Carter, you are charged on or about the 30th day January, 2014, at the City of Greater Sudbury, in the said region, had the care or control of a motor vehicle, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code of Canada.
You are further charged on or about the 21st day of August, 2014, in the same place, while his ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle and did thereby cause the death of Dean Hancock, contrary to s. 253(b)(3) of the Criminal Code. You are further charged on this same date and in the same place, while his ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle and thereby caused bodily harm to Daniel Cassio, contrary to s. 255(2) of the Criminal Code. You are further charged on this same date, and in the same place, did being at large on his undertaking given to a peace officer and being bound to comply with the condition of that undertaking directed by the said officer, failed without lawful excuse to comply with that condition, to wit: to abstain from the consumption of alcohol, contrary to s. 145(5).1 of the Criminal Code.
The Highway Traffic Act provides that upon conviction of the offences with which you are charged and in the circumstances indicated therein, your driver’s license shall be suspended forthwith for the period prescribed by the Statute.
Do you understand the charges and the caution as read to you?
WALTER CARTER: I do.
COURT CLERK: Mr. Bourgeois, is your client aware of his trial options?
MR. BOURGEOIS: Yes, he is, Your Honour. I’ve complied with 606(1).1 completely with my client and he enters into this plea as he indicated to me today completely of his own freewill. Is that fair?
THE COURT: Thank you. He elects to be tried in this court?
MR. BOURGEOIS: Yes, he does.
THE COURT: All right, thank you.
COURT CLERK: To these charges as read to you, how do you plead, guilty or not guilty?
WALTER CARTER: Guilty.
THE COURT: All right, thank you. Just have a seat, sir, for now.
MR. KURKE: Your Honour, before I do the facts, could I ask permission for the officer who investigated the August incident, Constable Ian Anderson of the Ontario Provincial Police, to assist me at counsel table?
THE COURT: Thank you. Any objection to that, Mr. Bourgeois?
MR. BOURGEOIS: None whatsoever, Your Honour.
THE COURT: All right, Officer Anderson may sit with you at counsel table.
MR. KURKE: Your Honour, at this time I’d like to make an exhibit the facts I intend to read to you. Could they be exhibit one?
THE COURT: Thank you. Exhibit one is a synopsis….
MR. BOURGEOIS: On consent, Your Honour.
THE COURT: Thank you. You have a copy, Mr. Bourgeois?
MR. BOURGEOIS: Yes, I do. Thank you.
EXHIBIT ONE: Synopsis of facts read in.
MR. KURKE: And as exhibit two, sir, there’s a book of photographs involved in the investigation.
MR. BOURGEOIS: I’ve been provided with those as well, Your Honour. Thank you.
THE COURT: Thank you. That will be marked filed by the Crown, marked as exhibit two.
EXHIBIT TWO: Book of photographs.
MR. KURKE: Thank you.
THE COURT: You will be proceeding with the January 30th matter first?
MR. KURKE: Yes, sir. Your Honour, in addition to the facts as pleaded to, I can tell you that on January 30th, 2014, at about one o’clock in the morning, Greater Sudbury Police responded to a single motor vehicle accident at Municipal Road 55 and Fielding Road, in Greater Sudbury. They were advised by a witness, Sam Jones, that prior to their arrival, the male driver of the motor vehicle was believed to be impaired when Mr. Jones attempted to render him assistance at about 55 minutes after midnight. Police attended the location at nine minutes after one in the morning. They noted a 2007 Chevrolet Sierra pickup truck, grey in colour, a motor vehicle about one kilometre west of Fielding Road, within the ditch portion between the westbound and eastbound four lane highway. The vehicle was further observed to be about 15 metres into the ditch and 70 metres off the shoulder of the highway where the tracks of the motor vehicle indicated that it had left the roadway. Mr. Carter, Walter Carter, a date of birth of June 2nd, 1975, of 2566 Highway 69 North in Val Caron, in Greater Sudbury, was located by police in the driver’s seat of that motor vehicle. He was the lone occupant of the motor vehicle. The vehicle was running when police arrived. Mr. Carter was still behind the wheel and there was no indication in the snow that surrounded the vehicle that Mr. Carter had at any point left that vehicle before police arrived and after the car went off the road. Mr. Carter was cautioned when police arrived that they were conducting an investigation into an allegation of impaired driving. Mr. Carter indicated that he understood. He denied consuming any alcohol, but he was unsteady on his feet. He tripped in the snow as he approached the side of the highway. Police observed a strong odour of alcohol coming from Mr. Carter’s breath. Accordingly, the officer who attended at 1:17 in the morning made an approved screening device demand upon Mr. Carter. Mr. Carter had some difficulty handling the approved screening device, but did provide a sample of his breath and registered a fail in the approved screening device. A bottle of wine was located on the floor of the rear cab of his motor vehicle and seized. After his failure on the approved screening device, he was arrested, cautioned, given his rights to counsel and a breath demand for evidentiary samples was made upon him. A tow truck was called for his vehicle and he was transported to the nearest available approved instrument at the Greater Sudbury Police Headquarters at 190 Brady Street, where within the requisite period of time he provided two samples of his breath, the first, 160, and the second of 170 milligrams of alcohol in 100 millilitres of blood into the approved instrument. Accordingly, he was arrested as well for the over 80 offence in addition to the impaired offence to which we’re not taking a plea. He’s pleaded to the over 80. When arrangements were made for Mr. Carter’s mother to attend, he was released by police on an undertaking before an officer in charge. One condition of the undertaking, Your Honour, was that he was not to consume alcohol. Your Honour, those are the facts relating to the January offence.
THE COURT: Thank you. Mr. Bourgeois, are those facts substantially correct?
MR. BOURGEOIS: They are substantially correct. Is that correct, Mr. Carter? Indicating yes for the record.
THE COURT: Thank you. Based on those facts, counsel, I am satisfied that the offence often referred to as over 80 was committed, on January 30th, 2014, and there will be a finding of guilt. What do you want done with the other count?
MR. KURKE: The other count, please, to be withdrawn.
THE COURT: Thank you. The other count is marked withdrawn at the request of the Crown.
MR. KURKE: Getting to August, 2014, Your Honour. Again, in addition to the facts as pleaded to, I can tell you the following. Sir, on Thursday, August 21st, 2014, just before 11:22 in the evening, Dean Hancock Jr., 18 years old and known to his friends and family as DJ, was driving eastbound towards Sudbury on Highway 17. He had just left the Walden Arena where he had been at a tryout for the Sudbury Nickel Barons Junior A Hockey Club. His parents, Dean and Kim Hancock, had attended the arena in a separate vehicle to watch their son play. At 11:28 pm, Sudbury Ontario Provincial Police officers were dispatched to a three vehicle crash involving a fatality on Highway 17, in Greater Sudbury. Constable Ian Anderson became the lead investigator in this matter. At 11:33 pm, police arrived at the scene, which was located about 1.8 kilometres west of Southview Drive. The weather was clear. The highway was dry. At the scene, police found three severely damaged motor vehicles. Your Honour, in the book of photographs that’s been filed, you will be able to see what the scene looked like the following day in daylight. I turn your attention at this point to photographs 1, 2, and 3 in that volume. The first photograph, sir, number 1 is from the eastbound ditch of the highway. That’s in the foreground. It’s the south side of the highway. It’s facing north. The second photograph is the highway facing east at that location. The third photo, sir, is facing west towards Lively. The first vehicle, a 2008 Subaru Impreza sedan was on the back slope of the eastbound shoulder of the highway. The male driver of this vehicle, Dean Hancock Jr, DJ, was trapped in his car. You can see that automobile, sir, in images 7 and 8.
North of the Subaru on the highway was a 2010 Ford F150 pickup truck, which had been driven by Daniel Cassio, age 48. Dan Cassio had been doing work on a friend’s sauna on Lake Penage and was heading home into Sudbury at the time of the incident. He was transported to Health Sciences North where he was treated for injuries sustained in the crash and then released. His vehicle, sir, you can see at photograph 4, and I’ll provide you more details later on in the facts about Mr. Cassio.
A few metres west of Mr. Cassio’s Ford pickup truck, facing eastbound in the westbound lane, police located a damaged Chevrolet Silverado pickup truck bearing Ontario license plate 8511RP, a vehicle registered to Mr. Carter. Inside this motor vehicle, the lone occupant was seated unconscious in the driver’s seat with the steering wheel airbag deployed and keys in the ignition. That vehicle, sir, you can see in photograph 5 in daylight, and Mr. Carter in the vehicle, you can see in photograph 6. That was a photo that was taken on the night of by first responders. Walter Carter, age 39, was extricated from the Silverado pickup truck by the fire department and ambulance crew and was transported to Health Sciences North where he was admitted for treatment. Your Honour, the facts of this matter are devastating. The circumstances are awful, but even in situations like this, there is room to recognize the heroism of ordinary people. There are situations which call out for assistance and people who answer that call deserve the community’s recognition for what can only be called heroism. One such person was Lisa Parise and Constable Anderson learned the following from her. Your Honour, Ms. Parise is an ICU nurse who was travelling eastbound on Highway 17. She saw a pickup truck, which was later determined by police to be Mr. Carter’s truck, coming at her in her lane and she swerved onto the shoulder of the highway to avoid a head-on collision. Mr. Carter’s pickup truck passed by her, continuing on westbound in the eastbound lane. She heard a crash and saw smoke and dust in her rear-view mirror. Sir, subsequent investigation by O.P.P. reconstructionist Constable Brown and technical collision investigator Constable Chokomolin confirmed that the pickup truck being driven by Walter Carter had been proceeding westbound on Highway 17, but in the eastbound lane. Once it passed Ms. Parise’s vehicle, Mr. Carter’s truck collided head-on, offset on the driver’s side with DJ Hancock’s eastbound Subaru. Mr. Carter’s truck then rotated on the highway, colliding with Dan Cassio’s Ford F150 which was travelling behind the Subaru. Sir, Ms. Parise stopped and ran back to the scene and assisted DJ Hancock who was trapped in the Subaru. She told police he was unconscious, a GCS Glasgow coma scale of about 3 to 4. He had laboured breathing. Pupils were fixed. Left pupil was 4. Right pupil was 2. He was unresponsive. He had a pulse. He had good lung symmetry. He had a laceration to his right eyelid. No major deformities to his face. Multiple open fractures and deformities to upper limbs. His legs were pinned under the dash. EMS arrived. C-spine was immobilized with hard collar.
Your Honour, another hero was witness James Stefanko. On August 21st, 2014, he was driving eastbound on Highway 17 behind a transport truck for his job delivering pizza for Topper’s. He saw the transport brake and come to a stop. He stopped behind it and got out of his car. He went over to the badly damaged Subaru car and found Lisa Parise dealing with the young male driver who was pinned in the vehicle and badly injured. He called 911 at 11:22 pm, and handed the phone to Ms. Parise so that she could advise them about DJ Hancock’s condition. Mr. Stefanko went over to a light coloured two door pickup truck located in the westbound lane and found the driver, who was Walter Carter, seated in the driver’s seat with his seatbelt still on. He had been knocked out with his head slouched down and to the left. He was breathing, but unresponsive. Mr. Stefanko described this driver as being really thin, shaggy hair, with a beard and a Summerfest wristband on. While at this truck, he noticed a man, apparently Dan Cassio, walking around a third involved motor vehicle which was a pickup truck. He spoke to this man who told him that he had tried to avoid this accident. Mr. Stefanko ran back to the first vehicle and did what he could to offer comfort to DJ, as they waited for paramedics to arrive. After that, he spoke to friends of DJ who had arrived at the scene and tried to reassure DJ’s mother, Kim, who was distraught and standing nearby. Ms. Parise remained with DJ. She was joined at the car by DJ’s father, Dean Hancock. As EMS personnel tried to extricate DJ from the car, he stopped breathing, but still had a faint carotid pulse, Ms. Parise noted. EMS took over and performed CPR, but DJ died at the scene. Along with Dean Hancock, Lisa Parise stayed with DJ the whole time until he was pronounced. The cause of death was later determined to be blunt force head injuries sustained in the collision.
Sir, Scott Ryan was the paramedic who transported Mr. Carter from the grey Chevrolet pickup truck. While on transit to the hospital, he smelled the faint odour of alcohol on Mr. Carter’s breath, adding that Walter Carter’s demeanour was, in his words, “combative and uncooperative”, which he noted was typical of a head injury. When they arrived at Health Sciences North in Sudbury, Mr. Ryan overheard Mr. Carter respond to a nurse that he was intoxicated when she asked him, “Do you know why you are here?”.
Police spoke with the nursing staff at the hospital. Marissa Maki was Mr. Carter’s primary care nurse at the hospital. She described Walter Carter as being confused with a decreased level consciousness. His speech was repetitive and not oriented to what had cost him to be brought to the hospital. She could smell alcohol on Mr. Carter’s breath and he said to her that he had been drinking too much.
Another nurse, Virginia Boden, heard Walter Carter say that he was intoxicated in answer to nurse Maki’s question to him if he knew why he was here. Virginia Boden also noted that Mr. Carter was wearing a Summerfest wristband.
Sir, at 3:45 in the morning, on August 22nd, 2014, Constable Anderson went with Constable St. George to the hospital lab with Yvette Tessier, who was the lab technician who had taken blood from Mr. Carter for medical purposes on his admission. Lab technologist Renee Dixon produced a spare vial with Mr. Carter’s blood that had not been opened or used by the hospital. Constable Anderson affixed a CFS seal, that is the Centre of Forensic Sciences seal, to this blood vial and returned it to Renee Dixon for safe storage until police could return with a search warrant. At 4:11 that morning, Constables Anderson and St. George spoke briefly to Walter Carter who identified himself verbally to the officers, providing his full name, date of birth, and address, along with his phone number. Constable Anderson told Mr. Carter that he was investigating the multi-vehicle crash that had occurred the night before. Mr. Carter asked if anyone had been hurt and he was told that one person had died. Mr. Carter kept covering his mouth when Constable Anderson was speaking to him. Mr. Carter was advised that police would follow-up with him at a later time. He was complaining of a sore chest and had a head injury. Constable Anderson had confirmed through a check with the Ministry of Transportation and RCMP data resources that the owner of the Chevrolet Silverado pickup truck involved in this crash was Mr. Carter, with a date of birth of June 2nd, 1975, and having a Lively address. The officer also learned that Mr. Carter had an outstanding set of charges for impaired driving and driving over 80 that had been laid by the Greater Sudbury Police Service, and also that Mr. Carter was on bail on those charges on an undertaking with conditions. Incidentally, sir, that undertaking continued until today and was still in force on this date, August 21st, 2014.
At 6:13 in the morning, Constable Anderson returned to the hospital upon learning that Walter Carter was going to be discharged. At 6:25 am, Constable Anderson arrested Mr. Carter for breaching an outstanding condition of his undertaking that required him to abstain from the consumption of alcohol. Mr. Carter was provided his right to counsel and asked to speak with a lawyer. He was transported back to the Sudbury O.P.P. Detachment where he spoke with duty counsel, while police continued to attempt to contact Mr. Bourgeois who is Mr. Carter’s lawyer. Police ultimately transported Mr. Carter to the Sudbury District Jail so that he could be brought to bail court.
In the afternoon of August 22nd, 2014, the day following the incident, Daniel Cassio, the driver of the Ford pickup truck, attended the Sudbury O.P.P. Detachment and gave a statement to police. He had been eastbound on Highway 17 when the crash occurred. The weather was clear. The roads were dry. He was following the Subaru, which he estimated to be about 120 metres ahead of him. All of a sudden, he saw lights of a vehicle go off the road, at which point he put on his brakes and veered left and struck something, which turned out to be the Silverado truck. Mr. Cassio checked on the other involved vehicles. In the Chevrolet Silverado, he found Mr. Carter alone and seated in the driver’s seat, not moving or speaking. Mr. Cassio advised police that he had received cuts and bruises and swelling on his left thigh, right knee and arms, which were cut, bruised, and swollen. His hands were also cut up slightly and he had a cut and bruising near his left eye. He had been treated and released from the hospital at 2:15, on August 22nd, 2014. Your Honour, in the book of photographs, photos 9 to 14 are photographs showing the injuries sustained by Mr. Cassio.
On August 25th, 2014, Constable Anderson was contacted by witness Stacey Lavoie. She told him that she was at Summerfest on August 21st, 2014. She was in the smoking area at 9:30 pm when she saw Walter Carter, whom she has known since grade school. He had a drink cup in his hand and he looked very intoxicated. He was flirting with her while her big boyfriend was standing beside her. She didn’t smell alcohol on Mr. Carter’s breath, however, he appeared to be under the influence. His speech was slurred and he had loose body movements, bobbing his head. She is not a drinker, but she knows the difference between a sober and a drunk person, and Mr. Carter appeared to have had too much to drink. There was a beer tent at this event where alcohol was being served. Mr. Carter told Stacey Lavoie that there was somebody with him who was in the bathroom, but she didn’t see that other person.
On August 27th, Constable Anderson attended Health Sciences North with a search warrant and obtained the vial of spare medical blood plasma that he had sealed on August 22nd, and medical records relating to Walter Carter. Constable Anderson examined Walter Carter’s hospital records and observed that his blood alcohol reading was 63 millimoles per litre. The seized blood vial was sent to the Sault Ste. Marie Centre of Forensic Science for analysis and retro-calculation of Mr. Carter’s blood alcohol concentration at the time of the incident.
On September 4th, 2014, Constable Anderson received a letter of opinion from toxicologist James Rajotte of the Centre of Forensic Science in Sault Ste. Marie. Mr. Rajotte advised that a plasma ethanol concentration of 63 millimoles per litre is equivalent to a blood alcohol concentration of 250 milligrams of alcohol in 100 millilitres of blood. Based on the time the blood had been drawn from Mr. Carter, Mr. Rajotte was able to project that the blood alcohol concentration, or BAC in Walter Carter’s blood at or between 11 pm and 11:30 pm, on August 21st, 2014, was between 250 and 282 milligrams of alcohol per 100 millilitres of blood.
By September 3rd, 2014, the investigation had advanced sufficiently for Constable Anderson to obtain an arrest warrant for the driving charges before the court stemming from the August 21st, 2014 incident. Mr. Carter was re-arrested at the district jail where he was still in custody on the breach of undertaking charge. From the time that Mr. Carter was arrested at the hospital on August 22nd, 2014, he has remained in custody at the Sudbury District Jail.
On September 15th, 2014, Constable Anderson met with and interviewed Sherry-Ann Boston, who is Walter Carter’s ex-wife. She told Constable Anderson that she and Walter Carter had separated in December, 2013, after having lived together common-law for 14 years. They have two children together, ages 13 and 9. The reason for the break-up was Walter’s problem with alcohol and poor choices that he made while under the influence. She told the officer that Walter Carter was having a difficult time with the marital separation. She described Mr. Carter as a daily drinker, but that she noticed it had gotten progressively worse. They would argue over the amount of money he spent on alcohol. Many times, he drove home drunk. She described Walter Carter as a good person and a good father, but that once alcohol became more important to him, he changed and became a very different person. Ms. Boston believes that Walter Carter needs rehabilitation and counselling to help deal with this, and she feels sorry for all those who were affected and for her children.
Police investigation revealed that the person Mr. Carter was with at Summerfest on the evening of August 21st, 2014, was Marissa Martin. On September 17th, 2014, at the request of police, Marissa Martin attended the Sudbury O.P.P. Detachment to be interviewed. Miss Martin told Constable Anderson that she had been dating Walter Carter for two months prior to the incident. She met up with him at Summerfest on August 21st, at about 6:30 pm. Both were driving their own vehicles. Walter was driving a Chevrolet truck. Miss Martin saw a couple of Cold Shot cans in the back of his truck when he first arrived. At the event, she and Walter Carter were drinking Wildberry Vodka Coolers, which were given to them in plastic cups. Miss Martin was not sure exactly how much they drank at Summerfest, mentioning between four and eight drink tickets worth, or possibly more. Walter Carter met a friend there who was giving away drink tickets. She said that every time she left her seat and came back, there was another full drink there for her and Walter Carter. She left Summerfest in her car at around 11:15 pm and saw Walter Carter getting into his vehicle. She and Walter Carter were talking by cell phone when the connection failed some time before 11:45 pm. She told police she felt guilty for letting Walter Carter drive away that night. Those are the facts, Your Honour.
THE COURT: Thank you, Mr. Kurke. Mr. Bourgeois, the facts are quite detailed. You were provided in narrative form. You have a copy of the summary. Does your client substantially agree with the facts recited?
MR. BOURGEOIS: He is. Where he doesn’t remember, he obviously can’t take issue with and the rest of it is substantially correct. Is that fair, Mr. Carter?
WALTER CARTER: Yes, sir.
MR. BOURGEOIS: So they are adopted, Your Honour.
THE COURT: Thank you. Based on the facts as I have heard them, I am satisfied that the necessary elements are there for purposes of a finding of guilt on the charge of impaired driving causing the death of Dean Hancock Jr. I am satisfied that the facts are sufficient for purposes of a finding of guilt on the charge of impaired care and control causing bodily harm to the person of Mr. Cassio. I am also satisfied that on the same date, August 21st, 2014, he had breached his undertaking given when he had been earlier arrested and the failure to comply with the undertaking will result in a finding of guilt on that count as well. There will therefore, counsel, be findings of guilt on all four charges to which he has entered pleas today.
MR. KURKE: Thank you, Your Honour.
THE COURT: In terms of other charges related to….
MR. KURKE: Could the rest be marked withdrawn, please?
THE COURT: Thank you. Other matters not pleaded to, not referred to, resulting from the August 21st, 2014 incident shall be marked withdrawn at the request of the Crown.
MR. KURKE: I should note at this time, sir, that the other charges are either dealt with by way of the Kienapple principle, or otherwise dealt with by the facts on counts one and two.
THE COURT: Thank you. I know that, but it is good that you mentioned it for the purposes of the public. Are you alleging a record?
MR. KURKE: No, sir.
THE COURT: Thank you.
MR. KURKE: Your Honour, earlier, you were provided with a volume of victim impact statements.
THE COURT: I was and before you start, I read each and every one of the victim impact statements, counsel.
MR. KURKE: Could that volume be made exhibit one on sentencing.
THE COURT: Thank you. The booklet containing the 13 tab victim impact statements will be entered and marked as the next exhibit.
COURT CLERK: Composite exhibit three.
THE COURT: Thank you.
COMPOSITE EXHIBIT THREE: Booklet of victim impact statements.
THE COURT: Counsel, I have also made some notes with reference to the victim impact statements and I am anticipating that some will be read to the court aloud. For those that are not, then I am prepared to place on the record my appreciation of what those persons said in those statements.
MR. KURKE: Thank you, Your Honour. At this time, sir, as well, I know that Mr. Bourgeois had a volume of letters. I’m content that they be filed as well as the next exhibit.
MR. BOURGEOIS: May I, Your Honour?
THE COURT: I have it, Mr. Bourgeois.
MR. BOURGEOIS: Thank you, Your Honour.
THE COURT: So the book of reference letters containing 10 tabs, and I have read all of the letters, Mr. Bourgeois, will be entered and marked as the next exhibit.
MR. BOURGEOIS: Thank you, sir.
COURT CLERK: Composite exhibit four.
COMPOSITE EXHIBIT FOUR: Book of Walter Carter’s reference letters.
MR. KURKE: Court’s indulgence. Your Honour, we ask a lot of victims in the circumstances of cases like these. Could I ask permission that Melissa Bromley with the Victim Witness Office be permitted to stand by?
THE COURT: Yes, of course.
MR. KURKE: Thank you. This is Kim Hancock, Your Honour.
THE COURT: And who is the other person standing here?
MR. KURKE: This is Dean Hancock.
THE COURT: Yes, good morning. I have read your statement. It is very touching. I know that your preference is to place it on the record yourself by reading it aloud. Should you have to pause at any point, just let me know. Take your time. There is no rush. Anytime you are ready.
KIM HANCOCK: My name is Kim Hancock. I’m DJ’s mother. My son DJ was killed by Walter Carter who made the decision to drink and drive on the night of August 21st, of this year. It is extremely difficult to find proper words, or the energy to express exactly what I’m feeling and what I’m going through. I will touch on a few emotions and the impact this incident has made on my life. Walter Carter has taken everything from me. My life has changed in so many ways it makes my head spin. I try to make sense of living and moving forward with my life, but I can’t. I am completely lost. I am not and never will be the same loving, caring, energetic mother, wife, or person that I was before this horrific accident. We had been watching DJ’s Junior A hockey tryout at the Lively Arena, on August 21st, and even spoken to him at the end of his tryout. This was the last time I spoke with my son. We were directly behind DJ as he drove out of the arena parking lot. We decided to stop at Tim Hortons. Two minutes later, we came upon the accident scene where the driver’s side of DJ’s car was torn off and there was DJ trapped inside. DJ was still alive at that point. My husband tried to console DJ by rubbing his chest as he was breathing very heavily. I just kept screaming and screaming “Get him out of the car.”. I waited by the ambulance, screaming and crying. All I knew then was that I wanted to be with DJ when they took him to the hospital. Had I known that he wasn’t going to live that night, I could have perhaps been with him at the car for his last breath. This continues to haunt me. All I could do was scream and cry and I couldn’t help my son. I have never felt so helpless in all my life. Protecting my children was my sole purpose in life. Every time I close my eyes at night, all I see is the side of DJ’s car wide open and his body trapped inside. I cannot sleep. I have had to take sleeping pills every night to help me sleep, but mostly so I don’t dream. I’m afraid to keep dreaming that vision I have of DJ trapped in his car and what he would have thought and felt those last few seconds when he saw Walter Carter’s truck in his lane, driving directly towards him. Every time I think about the accident, I feel like throwing up. I cannot eat. I’m losing weight. I cry all the time. I don’t know how to live without my son. I supported him in everything he did. I cannot watch him play hockey, which I loved to do. I have had to attend two hockey games already in DJ’s honour, which were devastating experiences. On both occasions, I had heart palpitations. My head felt like I was going to faint and almost throw up. By the time we left the arena, I felt like my head was going to explode. It was so hard to watch our friends’ children continue on their hockey dreams, knowing that DJ should be out there with his friends. I will never hear his voice again telling me how much fun he had with his friends, whether he was snowmobile, dirt biking, quading, seadooing, boating, fishing, and even just hanging out with his friends and his girlfriend. I don’t know how I am expected to move on with my life when I have been robbed of a million life experiences with my son. This is not normal. Nothing in my life will ever be normal again. I miss folding his laundry and rushing home to make him pre-game meals and lunches for school and having his friends visit all the time. Even with work, we closed our business of 20 years for two weeks, but had to return to try and make ends meet. I cannot concentrate at work, but I’ve been going into our shop just sitting there because I can’t stay home. DJ worked with us for the past year and a half and took great pride in what he did. I will never see his beautiful smile, his cheerful attitude again, even when his hands were covered in grease. Everywhere I turn, I’m constantly reminded of my life being shattered and all I can do is cry. Driving on a highway is devastating. I still cannot drive at night. All I think about is DJ and how horrifying that last few moments must have been. I’m nervous when cars are coming towards us and I can just visualize what DJ was thinking when he saw that truck heading towards him. I cannot drive on Highway 17 by the accident scene. I’ve not driven anywhere past the Four Corners by myself. I will only go with my husband if he is with me. I feel like I need a chaperon. I was such an independent woman and now I have no confidence in anything I do. It scares me that a person I never knew could so negatively affect so many aspects of my life. I could not go into DJ’s bedroom for the first three weeks after he died, and even now, I go in his room rarely. It is too hard. I cannot look at pictures of DJ without crying and feeling depressed and overwhelmed with helplessness. We come home after being out somewhere and I want to leave. My whole life is empty and being at home is depressing. We did everything for our kids. They were always home and now, even our daughter doesn’t want to be there. I’m overly protective of our daughter Jaymie-Lyne. I want to put her in a bubble. She’s in fourth year nursing at Laurentian University and is having a difficult time trying to concentrate on completing her fourth and final year of university. Jaymie has always maintained two jobs even throughout university and has not worked since the accident either. She should not have to be going through this. She’s a beautiful 21 year old outgoing girl who is now mourning her baby brother, and I can see how stressed she is about me and my husband and our family being torn apart like this. Again, I don’t know how to protect her from this horrible life we have been forced to live. I am her mother and I can’t help her. I just feel sick about this. I still picture DJ coming in our room every night. Where he was home, or in doing homework, or just hanging out at home, he would come into our room, give both my husband and I a kiss and a hug, saying “Goodnight” and “I love you”, and asking me to come tuck him in before bed, which I did. I tucked him in every night until that night of this horrific accident. It was our special moment every night. Walter Carter had two choices that night on August 21st. First of all, he could have chosen not to drink since he was driving. Secondly, when I think about the fact that he chose to drink excessively that night, he should have chosen not to drive. I cannot get my head around the fact this man has already been caught and charged with drinking and driving earlier this year. Any intelligent person should have learned a lesson from this. Walter Carter was selfish, ignorant, and irresponsible, and now my son is gone forever. DJ was only 18 years old and he was robbed of a bright future because of an irresponsible choice made by an adult and a father. I have been robbed of sharing childhood memories and all of life’s future experiences with my son, my only son. DJ should still be alive and my life should not feel like it is over. I could go on and on about how this has affected my life, but I don’t think there are enough words to truly express what I am going through. The suffering I am feeling and what I have been through just over these past two months is only the beginning and I cannot see light at the end of the tunnel. I don’t know if I ever will. I only have two children and now I have one. When my husband and I go, my daughter will have no one. My heart breaks. We are now forced to celebrate every birthday, holiday, and life’s milestones without DJ. How do you do that? Happy birthday. Merry Christmas. What do those words mean anymore? This is just completely senseless. No parents should ever have to live with this grief. I would not wish this experience on the devil himself. My life, my heart is not only broken, but shattered and empty. I love my son to the moon and back, but my life will never be the same. Kim Hancock. Thank you, Your Honour.
THE COURT: Thank you, Mrs. Hancock.
MR. KURKE: Your Honour, you have as well Jaymie Hancock, DJ’s sister.
THE COURT: Yes, thank you. Good morning. Whenever you are ready and take your time.
JAYMIE HANCOCK: Like my mom said, I shouldn’t be having to give this statement right now. If I could even begin to explain to any of you how this feels, you would become those pieces on the ground. The only reason I’m not right now is because I know in this moment, I need to say this for my brother’s sake. If I could start from the beginning of the second this entire situation started impacting my life, it’s receiving the Facebook message from one of my brother’s friends at 11:26 pm, on Thursday, August 21st. I was sitting in my kitchen with my best friend, and moments after getting that message, I had a phone call coming in. When I picked up, I heard nothing but frantic chaos and panic on the other line, as his friend, who had just messaged me, told me DJ had been in an accident and it was bad. It felt like a scene in a movie. In my head, I thought, okay, stay calm. I was thinking of vital signs and injuries. I was thinking Dylan is only 18. He hasn’t seen an accident. He’s just panicking for no reason. DJ has to be okay. I crumbled to the ground on my kitchen floor, my best friend standing beside me. He said I needed to call my parents, so I did. Wait. I had to tell my parents DJ had been in an accident. They would freak out. My mom picked up. “It’s not DJ. No, Jaymie. Is it DJ, Jaymie?” My mom’s sobs and panic ringing in my ear. I said “Yes, it’s DJ. I just spoke to Dylan. Where are you?”. “Jaymie”, hearing my mom like that on the phone will never leave my memory. “Mom, you have to breathe. Come on, just breathe with me.” I kept repeating this phrase over and over. Hearing her panic on the other line, feeling so helpless. She was going to pass out. She’s not getting oxygen to her brain. No. She might have a heart attack. Who knows. “Mom, you need to breathe.” If only DJ could have breathed, she would have been okay. My best friend drove me to the hospital. My mom told me to meet them there and that she had to go. I waited for the sirens when we got to the hospital and waited and waited, and something (inaudible) knew they’d never come, but we kept ourselves in denial the whole time. My cell phone rang after a while. It was my dad. Silence. He said “He’s gone.”. More silence. He said that “I was with him, Jaymie. Jaymie, I love you. I love you too, dad.”. Then he asked me “What are we going to do?”, and I said “I don’t know.”. He said “I love you”, and I said “I love you too.”. Hang up the phone. Scream. Cry. Scream. Where am I? This isn’t real. Scream. Panic. Scream more. Now my screams just sound like silence. I don’t know what’s happening. This can’t be real, not my baby brother. This was on the bench outside of the main entrance at Health Sciences North, my hopeful future place of work. I’m going to be a nurse. Perhaps that’s what makes this hard for me. Perhaps that’s why this has had such an impact on my entire life. I know pathophysiology. I know what happens internally when you die. What killed him? Did he bleed out? Was that the primary cause of his heart stopping? Did the blow to his head take its toll, or was it something else? Was it simply the fact that he got physically ran over by a pickup truck being driven by a drunk? Yeah, maybe it was that, a crush injury. Was he scared? I will never walk into Health Sciences North the way I thought I once would. Instead now, every time I walk into that hospital, I will remember how I crumbled and screamed into my best friend’s arms as she repeated “No, Jaymie, he’s fine. Everything is okay. He’s strong.”. It didn’t hit her right away. We were all in shock. We must have been. My dad was with him in the demolished car. I replay hearing my mom on the phone in complete panic saying “They’re pumping his chest, Jaymie. They’re pumping his chest, Jaymie. DJ. DJ. DJ.”. This is another memory I can’t get out of my head. I remember thinking to myself, no mom, that’s cardiopulmonary ressucitation, and yeah, he has about a ten percent chance of survival, and I’m thinking afterwards that he’s already gone. Jaymie, and you have to check (inaudible) phone call. No, stop, don’t think like that. Now, for the rest of my night. Telling my aunt, uncle Kevin. Telling my grandmother and then having to get my best friend to drive me at my other aunt and uncle’s house to tell them that my brother died. The same reaction from all of them over and over burned in my memory. Me saying “There’s been an accident. DJ didn’t make it.”. Them all responding with a lack of understanding. “What? No. Jaymie, what are you talking about?” So I repeat it. “DJ was in a car accident and he didn’t make it.” (inaudible), please don’t make me say it again. No. DJ. This can’t be real. They start to realize what has happened and then the sadness comes. Tears. More disbelief. More missunderstanding. Hundred questions running through their heads. This isn’t real. “Where was he? Where’s mom and dad? How did this happen?” I repeat the same answers over and over to everyone who asks. My best friend drives me back to my house. I can’t possibly get out of the car right now and walk in there. Please just take me far away from here. Drive and don’t stop. That’s what I was thinking when we pulled into my driveway. I can’t see my parents like this. Are they even going to survive the night? I get out and walk up the walkway, with my family starting to gather. Every single person crying. Why wasn’t I crying? What’s wrong with me, I thought. I like to think my nurse instincts kicked in. In times of chaos, we stay strong. Don’t fall apart. Do what you need to do. I kept these thoughts going through my head as I saw my dad bawling his eyes out, the strongest man I have ever known. My father, who I have known for 21 years, who I have never seen cry was crying right in front of me. Then my mom was on the couch when I walk in. Her face distorted and her eyes so heartbroken, her entire body curled up. Would she ever be the same? No. What a stupid thought, Jaymie. You won’t either. I can’t look at that couch anymore without getting flashbacks from that night, my mom sitting there so broken. You have no idea what that feels like. None of you do. The rest is a blurr. I called more family members, went through the same conversations, listened to them deny it and then accept it, cry and cry and cry and not understand, over and over and over again. How many people did I call that night? I replayed my night as I did laundry. I knew my mom wouldn’t be able to herself. I made coffee for mom and dad. I did things to keep busy. God, I was exhausted. Don’t stop. Don’t think, I thought. He has to come home. He’s coming home. The weeks following all felt like one very long day, or should I say nightmare. Each day, waking up knowing my brother is dead. Trying to wake up everyday with that thought and having to pick yourself out of bed to go say good morning to your parents who you know just woke up with the same broken thoughts. I had to gather his belongings for his visitation. I had to spend nights up making slide shows with my cousins of all the pictures we could find of DJ. I had to get his suit ready so that he could look his best at his wake. Why am I stuck doing all this? I had to attend my little brother’s funeral. I had to kneel beside his casket with his lifeless body lying there, trying to comfort my mom and my dad, and trying not to allow myself to feel this pain because they needed me, with a hundred thoughts running through my head that I can now tell you are the thoughts that describe how this has impacted my life. I will never be an aunt to the ten kids he wanted. I don’t want kids. My parents might not be grandparents. No more waving to my brother on our street when we’re headed the opposite way. No more being so proud to call him my younger brother when I’m at the gym. I can’t cut the grass for mom and dad. I don’t know how. Who’s going to cut it now? Do our animals know he’s never coming home? They must, right? Are they sad? We’ll never hear a Subaru coming down the street, or pulling in the driveway. We’ll never come home to him and his girlfriend being goofy while they cook in the kitchen. The boys won’t be over in the summer anymore. The seadoo won’t ever be driven that fast ever again. Every childhood memory I have of him and I is now haunted by his absence. And what about Christmas morning? Who’s going to wake me up to open gifts? What am I even going to buy mom and dad? Who do I consult with? When I go on dates and they ask me if I have siblings, I have to answer yeah, a brother, he was killed a couple of months ago. How many more “Oh my God, I’m so sorry” responses am I going to receive? My thoughts still being yeah, everyone is sorry, it sucks, and me responding to their condolences with “Thanks”. Why am I saying thanks? I’m not thankful that my brother died. When I ask my parents how their day was, it’s always just “okay”. Well how about you just tell me our lives are shit because we will forever feel empty because DJ is never coming home. Yeah, their day was shit. Mine was too. How could it not when your 18 year old brother is killed? We were so close. We had each other’s backs and everything. He consulted with me about girls and school and would get so excited to show me his newest parts for his car. We were planning our night out for his first legal birthday this coming February. We had our whole lives ahead of us. I was going to show him around our university the following week, and then in four years, I was going to go to his university graduation and be so proud of him like I always was, and he was supposed to be at my graduation this coming June. You get to bring three people. It was perfect. My three family members. It just felt (inaudible). And what about my wedding one day? I wanted him standing up there with me when I did get married. He was going to get married one day too. I wanted a sister-in-law. I wanted nieces and nephews. I wanted DJ and I’s relationship to continue for so many years. We had so much to do and so many plans. I didn’t get to say goodbye to my little brother and none of these things are ever going to happen. That’s the sad reality. I now fear every oncoming driver on the road. I’ve not been able to drive in my car because it’s so similar to my brother’s Subaru, grey, hatchback, small. This has not only impacted me emotionally and psychologically, but financially too, trying to afford the gas in a bigger vehicle to avoid the anxiety I feel getting into a small car. People would say to me, “Oh Jaymie, you have to write your victim impact statement saying how DJ’s accident has affected your life.”. How has my brother being killed affected my life? Every way possible, and this is going to impact my life in ways I haven’t even realized yet. I know it doesn’t end here. There is something in my life that will be forever missing and this will continue to affect me long after these formalities are over. My brother was supposed to be my support system. We only had each other. We don’t come from a family with ten siblings to rely on and fall back on. I work in a long-term care facility right now and most of the family members of our residents have brothers and sisters they rely on when making decisions for their elderly parents who are unable to make their own decisions anymore. Who do I have years from now when my parents are in need of this care? No one. I will face yet another obstacle, no matter how far down the road, alone. DJ would have been there to help me, and even of difficulty of tasks like this. This is just one small example of how so many things I will have to face will be left out of this statement, and how many little things deserve to be in this letter that I couldn’t possibly think of right now. There’s pain in every word of this statement. You would have no idea what this pain feels like even if I continued to name off all the things he was supposed to be a part of in my life that he now won’t be. But hey, I hope this letter and this statement helps you all see how this has impacted my life.
THE COURT: Thank you.
MR. KURKE: Your Honour, perhaps this is a reasonable time for the morning recess.
THE COURT: Fifteen minutes.
COURT STANDS IN RECESS
COURT RESUMES
MR. KURKE: Your Honour, Dean Hancock wishes to read his own statement.
THE COURT: Thank you. I notice you wrote it in your own hand, Mr. Hancock.
DEAN HANCOCK: Yeah.
THE COURT: It is the same one that I have.
DEAN HANCOCK: My life has taken a turn for the worst on August 22nd, 2014. My son DJ was killed by Walter Carter, a drunk driver. Me and DJ spent almost everyday together doing things that a close father and son do. My house is an empty space now, not a safe haven it once was. Our dream home is not a dream home anymore. I can’t go in my home shop where we spent time building dirt bikes and skidoos because all I do is cry. I have a very hard time watching hockey. It’s hard to watch. He played for 13 years and I rarely missed a game. My family is a mess and I mean everybody right down the line. All the interests I had in life are gone. It’s just a big empty world and I don’t know if they will come back. I have my own business. It’s taking a big loss. My part-time co-worker DJ is gone. My wife Kim, my partner, she’s not working. It’s very hard to keep it running. I’m so worried about my wife and my daughter and the rest of my family. I have not slept good since it happened. Very tired. My world will never be the same because of this man. And when this is all said and done and Walter Carter is all done with this, he will have his boys to go back with and do the things that fathers and sons do, and I don’t, and that’s it.
THE COURT: Thank you.
MR. KURKE: Your Honour, at this time, could we hear from Dan Cassio.
THE COURT: Yes.
DAN CASSIO: I drive a lot. I had 147,000 kilometres on that truck in four years. I drive a lot. Never been nervous in a vehicle. Never given it a second thought. On the night of the accident, I was driving home on that highway like I’ve done a thousand times when the tail lights on the car in front of me appeared to go up into the air and fly off the side of the road. Before I could make sense of anything, I could see a large black object ahead in the road, obscuring the headlights of the oncoming traffic. No lights. No reflection. No time. I crossed the yellow line partially, terrified I would be driving head-on into another vehicle. Then the impact. I will always remember thinking the seconds after my truck stopped moving, with the glass and the dust still flying around, that for sure another vehicle was going to crash into me. When I got out of my truck, I was confronted by a woman making her way to DJ’s vehicle, who yelled at me, asking me what I was doing in their lane. At this time, I had no idea how the accident had occurred, or what I had collided with, and in that moment, I had this dreadful feeling that I had hurt someone in this crash. I know that thankfully, I wasn’t responsible, but in that moment when I stood by his car and not knowing if my vehicle had made contact with his, I was devastated. This was compounded by the stomach turning fear that I had when I walked back to the other truck and saw the driver. I thought he was dead. What occurred in the next 30 minutes or so, standing on the side of that highway is what plays on a loop in my head, keeps me awake at night. I stood helplessly on the road, watching DJ trapped in his car, dying. I stood there helplessly watching his mother Kim on the side of the road. I’ve never seen such heartbreaking anguish, grief, and absolute despair. It’s the hardest thing that I deal with. I see it over and over again. That will never leave me. In the moments after the collision, I called my wife to call 911 and to come and get our dog who was in the truck with me. She was there when DJ’s friends began arriving at the accident scene. One of those boys was our nephew. She ended up helping those young men who stood by watching their friend’s life end, trapped in that crumpled car. She was there to witness him pass away and see the pain DJ’s family and friends experienced. Their agony that night will be with her forever. She too felt completely helpless. In the days that followed, I was extremely distressed and upset not knowing the details of the accident. I wasn’t sleeping and I spent a lot of time crying. To add to the confusion, an inaccurate article in the paper stated that my vehicle had ploughed into the back of DJ’s car. This caused my family and me several days of additional stress. My children were extremely upset, and I later learned that friends were afraid to call the house as a result of this article. The accident and death of DJ have not left my mind since that night. At this point, 74 days after, it still is vivid as if it were last night. I spent 46 days trying to resolve the total loss of my vehicle with the insurance company. Each of the numerous conversations required me to rehash the details of that night. No peace of mind. I was angry everyday because I was a victim. My dog was also injured that night. He required surgery on his leg and has a permanent limp now. It’s just another daily reminder of the accident. To summarize how I’ve been impacted by this senseless tragedy, I’m anxious. I’m short tempered. I have trouble sleeping. I worry about driving. I worry about my children getting into cars. I’ve not gone for counselling yet, but I know I need to. I’m angry and really, really sad. I was only a couple of feet from being killed in that crash. I think about what my death would have done to my three children. I feel guilty for complaining about being sore and having to work shorter hours, or stop working to go to treatment and therapy appointments because I shouldn’t be complaining. I’m embarrassed to have gone through this process of writing this impact statement because all of my loss and suffering is trivial in comparison to the loss of that young man’s life. I feel deep sorrow for DJ’s family and friends. I was lucky to survive and he wasn’t. He never had a chance. His life was taken away. Thank you.
THE COURT: Thank you, sir.
MR. KURKE: Sir, you’ve heard Jim Stefanko’s name. He wishes to read his as well.
THE COURT: Mr. Stefanko.
JIM STEFANKO: Good afternoon.
THE COURT: Good afternoon.
JIM STEFANKO: Not too many places that make me feel uncomfortable behind the wheel of my car, and every time I pass by the memorial of DJ Hancock, I’m reminded of the events of that evening, the sounds, the smells, and the sight of complete destruction that I’d stumbled upon. When I arrived at the accident, it was like nothing I’d ever seen. I was instantly focused on the car in the worst condition, that of DJ’s. I still to this day vividly recall his quick, heavy breaths as he held on for life, looking at his body and deep down knowing that nobody could possibly survive this. As I held his shattered arm, trying to reassure him that he was not alone in this nightmare, I couldn’t help but wonder what if this had happened to me. I was only about 30 seconds behind the accident and put into perspective how quickly lives can change. The one moment that still brings me to tears is when DJ’s father ran over to the car, hearing him say to his boy, “It’s okay, buddy. Daddy’s here. You’re going to be okay, buddy.”. Those words and the way it was said will be with me forever. I couldn’t imagine my father showing up to that accident, having to see me in that condition. It literally makes me sick to my stomach. Many nights, I stayed awake thinking about that exact moment, crying to myself knowing that I was possibly the last non-medical person to touch him, hear him breathe, and speak words to him before he passed away on-scene. I became short tempered with people around me, became angry at people that really did nothing wrong. Being at work and becoming overwhelmed with emotions and visions from that moment of that night. I feel frustrated with the decisions some people make, not taking into consideration who and what it will impact. In the days following the event, I was referred to speak with somebody at the Sudbury Crisis Centre and many of my family and friends thought I should speak with a professional to discuss what I saw, but I opted to try and deal with it in my own way. And though I never knew or met DJ, he will always be a part of my life.
THE COURT: Thank you.
MR. KURKE: Lastly, Your Honour, Frank Anzil Jr. wishes to read his victim impact statement.
THE COURT: Thank you. This is Josh Cross(ph) who is with him to assist him in doing that.
THE COURT: Thank you. Good afternoon.
FRANK ANZIL JR.: Here to tell you today about the person DJ was to my friends and I. Dean Hancock wasn’t your average 18 year old kid. The amount of love he shared towards his closest friends is what made him so special to everybody. I was proudly one of DJ’s best friends. DJ would have done everything for me. DJ would often offer up advice in any situation I encountered in my life and this is how he got the early title in my life as “my big brother”. Not only was DJ a great friend, he was heavily involved in things that he loved. He loved to go to the gym on a daily basis and on top of that, play hockey at the very highly competitive level. DJ was also a high academic achiever. He was due to attend Laurentian University’s new architecture program to some day become a successful contributor to our community and society, but that all changed the night of August 21st, 2014. On that evening, my life changed forever. I never truly understood what the saying “things will never be the same” meant, but now, I do. DJ died an innocent victim. He had just finished doing what he loved, playing hockey. He was on his way to meet myself and our friends to enjoy yet another summer night. “I just got off the ice, boys. I’ll be there in ten minutes. Wait for me.” For us, family and friends, that waiting has never ended. That was the last thing he ever said to anybody. “I’m coming, boys. I’m coming.” DJ was struck and brutally killed by the selfish actions of a re-offending drunk driver. His parents were only a couple of cars behind him and had to experience the tragedy first-hand. He lost his life as his father laid his hands on his chest for the last time. The unthinkable occurred on that night, which haunts my memory so vividly. When Walter Carter struck him, he was so terribly pinned in his car, there was nothing that could be done but for him to slowly die. DJ was part of our friend group of six friends. We were together our entire lives, and now, we’re only five. Never refer to each other as best friends though, but brothers. We went to school together. Played sports together. Socialized together, and the more I think about it, we did everything together. Now, since his death, my world is filled with such a deep and dark hole no matter how good I possibly feel because I know I’ll never see him again because of Walter Carter. At our grade 8 graduation, our parents took a picture of the six of us together. At our grade 12 graduation in June, of 2014, at Glad Tidings, our parents took the same picture of us in our grad gowns, in the exact same order. Two months later, in August of 2014, we returned to Glad Tidings, not to celebrate another chapter of our lives, but to close one. We had to carry the casket containing our brother down the aisle and then give a eulogy to talk about how great he was to all of us. It still doesn’t seem real. He was just a kid. It’s disgusting in this day and age that drunk driving is continuing to kill people. My life will never be the same. There’s no amount of remorse or apology that will smooth over this senseless act of total disregard for human life. I came to the first bail hearing for Walter Carter because I wanted to see the man who killed my best friend. It’s forever that DJ’s gone. It is forever that I will suffer tremendous loss, the tremendous loss of my best friend, my brother who had his whole life ahead of him. I still find his death so unbelievable because he had so much to live for. The impact of this tragedy will affect me for the rest of my life and everything I do because DJ was always there for me. He was there for all of us. No matter what, he’s a text message away. I can’t imagine the pain, the grief, and the anger I feel at the loss of DJ. He’s gone forever and he’s never coming back because Walter Carter drove drunk and killed him. I ask the court to consider the magnitude and impact of this crime on his friends and family and everyone who has suffered at the hands of a drunk driver, and I ask Your Honour to sentence Walter Carter to the maximum sentence under the law because Mr. Carter should have the same chance DJ had in this accident, no chance, no chance at all. I’ll miss him forever.
THE COURT: Thank you, Mr. Anzil.
MR. KURKE: Those are they, Your Honour. You have the volume filed, sir, the ones that haven’t been read to you, you have in the bottom. Did you want to proceed at this point to sentencing, sir?
THE COURT: I think so, counsel. It is 12:20 and absent people wanting to go for lunch, I thought we would continue for a short while.
MR. BOURGEOIS: It’s fine with me, Your Honour.
THE COURT: Do you have a preference?
MR. KURKE: No. I’m fine, sir. Your Honour, you have heard lastly the statement from Mr. Anzil and he asks you to impose the maximum sentence at law. The cases that we filed give you that number. What we’re proposing to the court by way of penalty in this case is a sentence of five years incarceration. That is a joint submission. From that number though is to be deducted the amount of time that Mr. Carter has been in custody pending this disposition.
Sir, I’m proposing that the first count, the count dealing with the death of DJ Hancock caused by Mr. Carter who was impaired and in care or control of a motor vehicle, that, that receive a sentence of five years incarceration, or four years and whatever the amount is after the deduction is made for pre-sentence custody.
I’m proposing that for the second, the harm done to Mr. Cassio, from whom you’ve heard as well, not just from me, that you impose a sentence of six months jail concurrent with the five year sentence.
And on the breach of the undertaking, sir, that you impose a sentence of six months concurrent on that as well.
With respect to the first offence from January, I’m going to be proposing, sir, a sentence of 30 days concurrent.
The other aspect of sentencing in matters like this, sir, involves the driving prohibition. I’m proposing, we are jointly proposing that you impose a ten year driving prohibition on Mr. Carter, on the August offences.
The January offence, sir, as Mr. Carter had no criminal record at the time that he committed that offence, the standard one year driving prohibition concurrent goes along with it.
And oddly enough by way of lapse in the legislation, these offences of impaired operation causing death and bodily harm do not attract automatic DNA orders, but given those two offences and the breach of undertaking charge, sir, as secondary designated offences, I’m asking that you make a DNA order for the purposes of the National DNA Data Bank.
The thing that you need to bear in mind, sir, is that once again, we assemble this court to deal with a member of our community taken away from us because of somebody driving drunk and killing him. We’ve lost another young man, sir, who we hear, of course, is a son, a brother, and you know from the statements you have with you, a grandson, a nephew, a cousin, a boyfriend, a friend to many and a teammate. He was a good kid. The only thing he did wrong apparently, was to get a driver’s license and have the misfortune to be on that road when Walter Carter was there. In one senseless act, sir, our community has lost such a valuable member, and it’s a tribute to Dan Cassio, a victim himself, that he’s embarrassed to talk about the significant harm he has suffered in comparison to DJ’s loss. It, in his view, pales in comparison. This, Your Honour, is the stuff of our worst nightmares, and you’ve heard that again and again and again in the statements of Kim Hancock and Dean Hancock and Jaymie Hancock. You’ve read the statement of Jackie Lagace and the cousins, everybody. What you take from reading those statements, if you can get through them, is that this isn’t just a waking horror that they now have to deal with, it keeps them awake because of what they experienced. Dean Hancock, sir, had the good fortune and the terrible fortune to be with his son as his son passed away, and I don’t imagine that he’s ever going to lose that image. You heard the same from Jim Stefanko, whose only relationship to DJ Hancock was helping him through his last moments on earth and he’ll never forget what he witnessed. His friends and coaches portray a loving, kind, focused, caring young man with a wonderful future ahead of him taken again by a drunk driver.
This is what the case law talks about, sir, the same case law that sets a range for us to consider today, speaks of how we are to deal with this, and I’ll run through them quickly, sir. You have the two book of authorities. I’ll start with the blue one.
At tab 1, there’s a decision of Junkert out of our Court of Appeal. This was a situation where an individual drove impaired and killed a person, in this case, a pedestrian. After a trial, that accused was sentenced to five years. That’s after trial, in 2010. That factors into the range that we deal with in offences such as this. If I could turn your attention though, to paragraph 42. What you need to consider in sentencing on this case, in the case before you, what the court makes clear in Junkert, in paragraph 42, is that your guiding sentencing principle in drinking and driving offences, particularly where death is involved, are denunciation and general deterrence.
The community needs to know, once again, Your Honour, that the tariff is high, that the penitentiary awaits when you take another person’s life for no reason at all. The dockets of our courts, sir, are filled every Wednesday, you know this, with new cases that are coming through the court every day of impaired driving and driving over 80. Some of them plead guilty. Some of them don’t. But the affect on the community remains because every drunk driver is a potential killer. It’s simply a matter of luck. Unfortunately, it was DJ Hancock’s bad luck and Daniel Cassio’s bad luck that Mr. Carter’s number was up that night.
Sir, at paragraph 49 of the Junkert decision, the associate Chief Justice of Ontario, Justice O’Connor, indicates “I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time. That said, I do not think that a sentence of five years for this offence is unfit.”. That’s the range of sentence we are dealing today. That was the sentence imposed in that case after a trial. As Your Honour is aware, whatever else Mr. Carter has taken from the Hancock family, his plea of guilt is an enormous benefit to them and to the community. His acknowledgement of responsibility indicates an acceptance of his responsibility early on, and as always in these courts, attracts recognition as a mitigating factor.
You have at tab 2, sir, the case of Heaslip. Mr. Heaslip also when he was drunk, crossed over the centre line with his vehicle into oncoming traffic and ran into another vehicle, killing two children and injuring others. That case from 2001 shows what the numbers used to be. Mr. Heaslip was sentenced to three years for taking those young lives.
At tab 6, sir, you’ll see the decision in Page after trial, a four year sentence, when he killed another driver and injured his own wife who was a passenger in his own vehicle. That was after trial.
And the numbers are similar throughout the decisions in the casebook, sir. That’s how counsel and I arrived at the number that we put before you. The range is nicely set out in terms of understanding where it comes from and where it’s going. In fact, the Manitoba Court of Appeal did us the favour of assisting in this regard.
If I could turn your attention, sir, to tab 7 in the Ruizfuentes case. At paragraphs 13 and following, the court describes a review of the case law. That decision, sir, was 2010 as well, and I’d ask you to turn to paragraph 16 to 18. It wasn’t just a summary of cases in Manitoba, Your Honour. The Manitoba Court of Appeal studied the sentencing positions throughout Canada. In paragraphs 17 to 18, they give their results.
“17 What can be ascertained from this review is that, for the most part, the sentences range from one to four years of imprisonment for offenders who have no prior convictions for drinking and driving or serious personal injury offences.
18 For those with prior convictions for drinking and driving or serious personal injury offences, the sentences tend to be around the five to six year range.” That, in a nutshell, is the state of the law, but it has to be filled out some with the decision in the white casebook, sir, at tab 4. That’s the case involving Her Majesty and Robert Ramage, from March 1st, 2010, another decision of our Court of Appeal. Mr. Ramage, while intoxicated and driving a motor vehicle, crossed four lanes of traffic on a busy four lane road and struck two oncoming vehicles. His passenger was killed. A driver of one of the vehicles struck by Mr. Ramage suffered significant debilitating injuries. After trial, the man received four years incarceration.
If I could turn your attention, Your Honour, to paragraph 74 and following because it needs to be said what the courts recognize in these decisions over and over again is that the people who commit offences like this are often the Walter Carters of the world.
Mr. Carter comes before this court with no prior criminal record. He had an outstanding charge, and I’ll get to that in a moment, but he was convicted of no prior offences before this, and the courts struggle with what to do with people in this situation who takes lives, and on balance what the courts have ended up is the range that you’ve heard about. It’s not simply a matter of saying, well, the maximum penalty for impaired driving cause death is life imprisonment. The person who died was a wonderful person and therefore, we will sentence the offender before us to life imprisonment. That’s not the state of the law. What the case law indicates is a maximum for the situation that we find ourselves in today, of five years, which is what is being proposed.
But if I could turn your attention to Ramage, at paragraph 74 and following, on page 31 of the decision, Your Honour.
“In imposing sentence, the trial judge identified general deterrence as the predominant concern.”
General deterrence, as Your Honour knows, is a sentencing principle to try to encourage the selfish, stupid people of our community who get themselves intoxicated and then drive motor vehicles not to do that. The way this is done is by indicating to them a significant penitentiary sentence is an outcome if they take a life while they’re doing that.
The court goes on, “In doing so, he correctly applied this court’s judgment in the McVeigh decision (ON CA). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the court. In the memorable words of MacKinnon, “every drinking driver is a potential killer”. Unfortunately, that potential was realized in this case.”, as it is in ours.
“75 McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases, however, McVeigh indicates that general deterrence is of primary importance. The result in McVeigh demonstrates the court’s commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs. McVeigh, a 31 year old first offender, had his sentence increased from 21 months to three years.” Again, an indication of an upward movement in sentencing, Your Honour.
Paragraph 76 needs to be taken into account. “As noted by the trial judge, there were aggravating factors in this case. The appellant’s blood alcohol level was very high, well beyond the blood alcohol level of 160 deemed by statute to be an aggravating factor.” Your Honour will be aware of s. 255.1 of the Criminal Code. I would point out that in this case, Mr. Carter’s blood alcohol concentration was 250, or higher, three times the legal limit.
“The readings leave no doubt that the appellant was significantly impaired. As he drove along the road, he presented an immediate and very real danger to hundreds of people. Given the appellant’s very high blood alcohol level and his inevitable degree of impairment, the appellant must have known of the risk he posed to all around him when he chose to leave the reception and drive to his destination.” This is the sentence, sir, that our community needs to hear.
“The danger created by the appellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves these goals.” That was the Ramage decision, sir.
In this case, Your Honour, you have the mitigating circumstance of a plea of guilt at an early stage, and I’m sure that my friend will tell you more about that. I ask you, sir, take into account though as aggravating circumstances, what raises this case from four to five years. Mr. Carter had an outstanding set of charges in the impaired and over 80 charges from January, 2014. Mr. Carter was on an undertaking in which he had promised not to drink alcohol at all. Mr. Carter, on August 21st, 2014, drank an incredible amount of alcohol, enough so that his blood alcohol concentration could be determined to be more than three times the legal limit. Mr. Carter quite possibly, Your Honour, was using his cell phone while driving intoxicated. You’ll be aware of the new charge of distracted driving. You’ll be aware of the statement of the young lady who was with him at Summerfest and how she indicated that his phone went dead as she was communicating with him after she had left Summerfest. Your Honour, Walter Carter forced Lisa Parise off the road and collided with DJ Hancock, taking that young man’s life. He rebounded from there into the vehicle driven by Dan Cassio, causing that man bodily harm and endless suffering for what he had witnessed happen to another person. Those are the aggravating circumstances, Your Honour. Those are what bring the number to the five years, which is a significantly high sentence for a man only now convicted for his first set of driving offences.
With respect to the January offences, as I said earlier, Your Honour, Mr. Carter had no criminal record at the point of those offences and he must be sentenced on those in essence as a first offender. Since he’s going to be spending a significant amount of time in the penitentiary, we’re proposing to you that instead of the ordinary fine for a first offender, that he be sentenced to 30 days concurrent for that offence.
The ten years, Your Honour, you’ll see from the review of the case law, the ten year prohibition is well in line with what the cases have proposed for a prohibition.
Sir, those are the circumstances that lead to the joint submission. If I haven’t been clear about anything, or if you need any further explanation of our position, I invite any questions you might have.
THE COURT: Thank you very much. Mr. Bourgeois.
MR. BOURGEOIS: Yes, Your Honour, it’s obviously a very regrettable situation that we find ourselves here for, and myself as well, I certainly want to send my deepest condolences to the family and I know Mr. Carter wants to as well. His position all along was one in which he wanted to resolve the matter and deal with it as quickly as possible. He enunciated that to Constable Anderson and to myself immediately and has done everything that he could since that day to try to make it as easy as possible and recognize what he did, which was obviously horrible, despicable and unacceptable and he knows that.
He’s pled guilty, Your Honour. With these type of cases, this would be an extraordinarily fast plea. I think Your Honour would agree with that and my friend as well, and that’s something that Mr. Carter wanted as well. He waived his right to a bail, sir, and he understood that he was going to have to spend a significant amount of time in custody.
As my friend indicated, Your Honour, it’s always a very difficult situation because you have, quite frankly, I couldn’t get through the victim impact statements myself yesterday, I wasn’t driving, I was a passenger with my fiancée, and I couldn’t finish them. So I understand the devastation of the family and friends as much as I can and recognize it openly and I know that Mr. Carter does as well. All he can do now, Your Honour, is come before you and be sentenced by yourself and move forward. There’s not much more he can do at this point, quite frankly, but he has pled guilty before you. He has accepted complete responsibility for his actions, and he’s going to have to pay the price now.
I presented a series of character reference letters on his behalf. Obviously, they come before this incident, but they talk about a gentleman, as you will see, Your Honour, who is an extremely hard working individual with two jobs, one with Xstrata and one with Day Transport. All people, whether they spoke good of him or bad of him, all said that he was an extremely hard working individual and that he was helpful in the community to neighbours and like, aunts and uncles and cousins. So certainly, that part of his life, he was a contributing member of the community in the sense that he didn’t take from the community in that regard.
Unfortunately, on the day in question, it’s an act that he, himself, has to live with and he’s told me on numerous occasions that, that’s something that he will have to deal with everyday for the rest of his life. Certainly, it’s no consolation to the family, but it’s something that certainly, he knows what he did and that’s something that he’ll have to deal with everyday in the future.
I think Mr. Kurke was beyond fair and reasonable in the cases. I mean, I presented some that the sentences were significantly lower than what we’re suggesting, Your Honour. I gave a casebook to this Honourable court just as an indication that this is not what would be considered necessarily in the lower end of sentences for these type of cases. One would almost be shocked at some of the sentences that were given in the past and some of recent vintage. So I do that only so that the court knows that it is a tightrope and there’s a significant balancing act between the devastation that was caused by Mr. Carter and the mitigation factors of his life, his contrition and how he’s dealt with it in the criminal judicial system. So in doing so, I do so only to tell the court that I respectfully submit there is no magic in the number. I remember telling Your Honour at the pre-trial, there is no type of penalty or sentence that this Honourable court will give that will give satisfaction to the Hancocks and quite frankly, I understand that. So that’s really not the purpose of this court today. In my respectful submission, it’s to sentence Mr. Carter for this particular incident, given the case law that we have.
The Ramage case was pretty telling, and Mr. Kurke already addressed it, but that was one that I was going to deal with. Even in that case, which I was quite familiar with, Your Honour might remember a bit of the facts, but Mr. Magnuson, the victim, was a very close friend of Mr. Ramage and despite that, the court said that it had to be a significant penalty, but they didn’t look at those particular factors as being relevant factors. The factor was that they had to come up with a sentence that dealt with the incident and dealt with the general and specific deterrence of that particular case, that particular offender at that particular time.
So I believe, Your Honour, in all of that, that what we’re submitting to this Honourable court is reasonable and just in the face of the law and certainly not for the Hancocks, or their friends, or family members, or maybe not even for the community, but it’s certainly, what I respectfully submit, within the reasonable range and there has to be some recognition, for whatever that percentage is, this Honourable court has to decide for somebody that takes all the right steps and tries to deal with it. As Your Honour knows, these matter could, if one wanted, be dragged out three, four years with preliminary inquiries and trials and appeals, and that just puts everybody through it time and time again and more hurt and pain and it just doesn’t allow the chapter to at least unfold itself from one way to another. So I submit that to Your Honour as a joint submission with Mr. Kurke.
In terms of the DNA order, I take no issue with that. I spoke to my client. He’s content with that, Your Honour.
The other amounts that we proposed to this Honourable court as a sentence, I join my friend in those. I think they’re reasonable and just in these particular circumstances. I note that the ten year prohibition is extremely significant in nature compared to the other cases, but that’s one that my client is prepared to accept and understands that driving is a privilege. I can tell this Honourable court, for whatever it’s worth, that, that would be followed by, if ever he were to drive again, he has to drive with an interlock for the rest of his life. That’s through the regulations. That might give some comfort to the court, but those are the regulations for a sentence of ten years of more in terms of a prohibition through the MTO.
Subject to any questions, Your Honour, Mr. Carter obviously deeply apologizes to the family, the community at large, to his own family, and to all the victims. He accepts full and unencumbered responsibility for his conduct. He makes no excuses whatsoever in coming here before you and understands that whatever penalty Your Honour will impose, he will respect it and abide by it and move forward in the community at that point, in custody, and deal with whatever he has to do at that time.
While he’s been in custody, Your Honour, I count 75 days, but I heard Mr. Cassio said it’s 74, so it’s either 74 or 75, Your Honour, at 1.5, so I had it at 112 days, I’ll let Your Honour calculate that total, he’s done the right things inside the facility as well. I’m not just saying that. He has. He’s worked at the kitchen extra hours. He’s engaged AA services in there as much as he could, and that wasn’t done to come in front of the court and say that. That was something that he did on his own, realizing that he obviously has an issue. That goes without saying, and one that he’s going to have to deal with going forward, but he is a gentleman that can be rehabilitated, I believe, Your Honour, and continue to be a contributing member of the community maybe in the future, and certainly, he’ll have to live his whole life with this over him.
There’s already been a significance of backlash on him personally, not that if I was the family of the victims would care about, but it’s been difficult for him in the facility. Ms. Boston’s house has been visited a few times as well, where his children reside. That’s something that further weighs upon him because obviously, he brought that to their doorstep, nobody else, so he knows that. So my conversations with him have been, I could say, unmeasured in terms of him trying to make excuses. That goes to his credit, I believe, and he comes to the court, as you saw numerous of his family members who gave letters for him, Your Honour, talk about the amount of remorse that he has and I believe those are genuine letters from people that aren’t trying to gain anything because they already knew what the position was.
Subject to any questions you might have, Your Honour….
THE COURT: No, thank you. The only other question is whether Mr. Carter has anything personally to say, or is he satisfied that you have covered the territory for him?
MR. BOURGEOIS: I’ll ask him whether he does or not. He told me he didn’t know.
WALTER CARTER: I need to formally apologize to the Hancock family. I’m sorry for bringing this to your family. Sorry. And I just need to apologize to my family as well for the shame and embarrassment I brought to them.
THE COURT: Thank you. Counsel, I need a few minutes and I will tell you why. I was not sure about the amount of time I would need to actually pronounce the sentence. I have heard from you both. I know it is a joint submission, which is going to impact and shorten the necessity of what I have to say. It is important though that sentence be imposed all while referencing what I heard. In that context, it would be my preference to return at two o’clock. I am somewhat loathe to do that because I know people have been here and they have been with us since probably before ten, wanting to be part and present during the entirety of the process. I could shorten that a bit if that is the consensus of everybody, but on the other hand, if anybody wants to venture out and have coffee or have a quick bite to eat, if I make it shorter than an hour, that is not going to give them enough time. So my preference is two o’clock and we should not be very long after that. It will give me time to tidy up my notes, absorb what you have said, and try and make the decision, or pronouncement of it as succinct as I possibly can. So thank you.
COURT STANDS IN RECESS
COURT RESUMES
LALANDE, R. (Orally):
Thank you counsel for your helpful submissions. I wish to thank DJ’s parents and his only sibling Jamie for having prepared and delivered the most thorough telling and heartfelt victim impact statements I have ever had to consider. Each statement set out in heartbreaking detail the grief, hardship, and impact that this unnecessary tragedy has caused.
I also thank Dan Cassio, Jim Stefanko, and Frank Anzil Jr. for having presented and read their respective victim impact statements.
I have also carefully read and considered the victim impact statements provided by others who suffered emotional loss as a result of the commission of these offences, including from Jackie Lagace. From reading it, I gathered that she is DJ’s maternal grandmother. She made sincere observations about how he was close to the family. She expressed her love for him. She observed that DJ had aspirations of going to university and maybe becoming an architect. She spoke about the devastating impact resulting from DJ’s untimely death, which in her own words she described as a tragedy and nightmare.
There was a letter from Carol and Junior Hancock. I presume uncle. On that letter appeared the names of Natalie, Joshua, and Deanne. I presume all cousins. They question why DJ was taken away so soon by someone who chose to drink and drive. Their statement discussed the impact that the loss has had on Joshua’s recovery from open-heart surgery and the difficulty they had in choosing a proper time to tell him about what happened to his cousin. In that statement, Joshua provided his own words about his future life plans, which included DJ. He stated, “Losing DJ was the hardest thing I have had to embrace in my short 24 years.”.
Gillian Townend provided a brief statement. She is a friend of DJ’s. She said that she cries a lot and is angry. She has nightmares when thinking about his loss. She suffers from loss of concentration. She mentioned grief counselling. I am assuming that she may be considering that.
Nathan Shane said that he and DJ played hockey from age eight. Actually, they attended the same school at an earlier age. He stated that DJ was stolen from his family and friends. He rushed to the accident scene. I presume he was one of the several who attended after they found out about the accident. He was present when DJ’s parents found out, or realized that he was gone. He stated, “I will never see my best friend again.”. Not a day goes by that he is not haunted, or has nightmares about the accident and DJ’s death.
Natasha Giusti indicated she was DJ’s close friend for about eight years. She said that she finds it difficult to sleep, or be happy, or participate in activities like she did before. She now finds it difficult to watch hockey, be alone, or watch people socialize and drink.
Jeff Forsyth is one of DJ’s hockey coaches. He put it this way. “The privilege of life was taken from an innocent, responsible, respectful, loving and aspiring young man driving home from a hockey tryout.” He said that he is grieving DJ’s loss. He set out touching examples of reasons for which he cries when he thinks about DJ and the circumstances of his death.
Albert Cordini is another hockey coach who knew DJ well. He described DJ as a fierce competitor with a blistering shot. In speaking about DJ’s attitude, he stated, “He was passionate, intelligent and above all, he cared.”. He described DJ as a person ripe for success at all levels of life. He stated that “DJ’s loss has changed the landscape of the team and that DJ’s death damaged our spirits.”. I presume he is speaking about himself and DJ’s hockey colleagues. He stated that “All is trivial of course compared to the loss DJ’s family is feeling.”.
I noted that some of the victim impact statements referred to the healing process and some made comment about the severity of punishment that should be imposed. These comments as they related to punishment are understandable in these circumstances. The court, however, appreciates that what this really means is that persons who are aggrieved and who have provided victim impact statements, importantly those of DJ’s parents and sister, are asking that justice be properly served in the context of Mr. Carter’s sentencing. The victim impact statements are a testament to DJ’s memory.
I especially, again, extend my sincere thanks to DJ’s mom, dad, and sister who had the courage to read their victim impact statements in open court. As a father, a mom, and a sister, this takes courage. Notwithstanding your lack of familiarity with the judicial process, you have attended here today, determined in DJ’s memory to do what had to be done. You each knew and felt you were obliged to speak on his behalf. You did so very well and you have created a tremendously helpful impact on the sentencing process.
No sentence imposed today can right the wrong that has been caused, or repair the terrible daunting and horrific damage that has been caused. DJ’s life will forever impact his family and friends, and for that matter in case it has not been said, the community at large. It is a loss to the community when somebody of his calibre and potential has been taken away.
I have had the good fortune on this case in dealing with two experienced lawyers, who themselves are familiar with the sentencing process, who are familiar with the law and know what it takes to responsibly bring this type of matter to a resolution. Their task along the way has been difficult. They have considered the complexities of the case and from what I can tell, have each discharged their obligations professionally all the while remaining sensitive to the pain, pressure, and grief suffered by DJ’s family and friends.
The law is always evolving. Those of us who have been around long enough understand that. Mr. Carter, for instance, entered a plea of guilt to a charge of impaired driving causing death and to a charge of impaired driving causing bodily harm. These are serious indictable offences. These offences did not exist when many of us started practicing law. The criminal law system and legislation evolved to incorporate these serious type charges sadly in order to deal with increased challenges brought on by people who choose to drink and drive.
Many of you might be asking the question, what is the sentencing process all about and what are the objectives? The lawyers, from their comments, in part have answered that. Of fundamental importance is the objective to deter an offender and deter other persons from committing offences. That is one of the main targets; prevent crimes from occurring. Sadly, it is not always possible. The justice system does its best to denounce unlawful conduct and the justice system has the onerous task, where appropriate, to separate offenders from society or from the community. That is what is going to happen today.
The justice system also does not forget the importance of rehabilitating offenders, so that some day when they are released, they will be better citizens and not present further risks.
Generally speaking, when the court looks at any case, it must measure the sentence against the gravity or seriousness of the offence and it must take into account the responsibility of the offender. Sentences are often increased, or decreased depending on what the lawyers have referred to as aggravating, or mitigating circumstances. The court also knows that in the larger context, sentences should be similar to each other. It is not always possible to capture that because things happen in different ways and different people are involved. In law school, we used the phrase “Is it a case on all fours?”, meaning is it a similar case. Does one case resemble the other? It is very difficult to get one case identical to the other. By and large, however, the lawyers have done their best to capture the flavour, or flow of the cases dealing with similar charges, although the circumstances are different and the victims are different.
There are a number of mitigating factors, which I must take into account in assessing what has been presented to me. The Crown mentioned it and Mr. Bourgeois as well. Mr. Carter has entered a plea of guilt to these charges. A plea of guilt is often important because it saves on resources, it saves on time, it saves on energy, it saves the people from having to attend court and in more detail, relive what has happened in the past. There was mention that Mr. Carter is remorseful for what he has done. He got up and spoke. He did not say that much, but I think in his heart and mind, what he said was important. It was important to him and he wanted the aggrieved family and friends to hear it. He has the support from his family and friends. I can tell that because I do have the book of reference letters where various members of his family have made comment about the person that they think and believe that he is, not the person who necessarily committed the offence, not the person who went out there and got drunk and drove a car, not the irresponsible person that he was when he committed the crimes, but the person that he otherwise is, or can be. He is referred to as a decent person at the core. He is referred to as an amazing father to his two children. He is referred to as a person who has made mistakes, but who is incredibly remorseful. I am told, although I do not have a lot of detail, that he has a good work history. His lawyer said that he carried two jobs. He therefore struck me, absent his criminal conduct of course, as a person who has contributed. We also heard reference about his failed relationship. Sadly, that appears to have been triggered by alcohol. Alcohol seems to have been something that has affected his judgment in the past. I cannot help but think that alcohol and the failure to control it has cost him a lot of frustration. It was probably the reason that his relationship ended. It was probably the reason that he chose to drink excessively after having been released further to his charge on January 30th, 2014. One would think that a person would tread very cautiously after being charged. One would think that, that outstanding charge would impact one’s brain and would be a weight on one’s shoulders from day to day. One would think that. Largely, that is why people are released on undertakings. They provide an undertaking, which is a promise, and when they sign it and it says “not to consume alcohol”, it means that they will carry through. If a justice of the peace in bail court knew in advance that, that person was going to breach his, or her promise to the court, that judicial officer may not have granted the release. So had someone known that he was going to drink and had someone known that this was going to happen, and nobody has a crystal ball, then the undertaking may not have been accepted. He may have gone to bail court and he may have been dealt with differently. By and large, the judicial system works fairly well. The idea is not to impose on the freedom of persons who make mistakes unnecessarily and in large part, it works, but the system is not perfect. This case may be representative of an imperfect situation, but there was no way to foresee it.
There are aggravating features and I do not have to dwell on them. I have already mentioned the January 30th case. After consuming a significant amount of alcohol, Mr. Carter decided to drive. It is too bad his friend who was at the festivity with him would not have said to him, don’t drive, I will drive you. Had that occurred, we might not all be here today, but it did not happen. She drove her vehicle and he drove his. He drank a tremendous amount of alcohol. I know that partially because of what she said and also because of the readings. The police took a vial of his blood and had it examined at the Centre of Forensic Sciences and it resulted in us knowing that he had in excess of three times the limit in his system. So after having that in his system, he engaged in operating his truck and we all know what happened. He engaged in terrible bad driving. He ultimately drove in the oncoming lane and caused this terrible accident which took DJ’s life. These are very aggravating features. The Crown mentioned, and I know it, that when you have over 160 in your system, it is to be considered as an aggravating feature.
It is not necessary for me to talk in detail about all the cases. There are a couple of cases that I cannot help but refer to just to give some perspective on how these matters are being dealt with. The case of R. v. Nahdee is a rather recent decision. It was decided in March of this year, 2014. Mr. Nahdee pled to impaired operation causing death. There was a single car accident. He failed to stop at a stop sign. His vehicle went through the intersection, broke through a steel guardrail and came to rest in a field. One of his friends was a passenger. He was in the rear seat. He sustained serious head injuries and died later in hospital. In that case, the Crown was suggesting imprisonment of two years less a day. Defence counsel thought that a jail term of 18 months or so would do. He was sentenced to 18 months jail. He was 35 years old. It is important in that case to note that the deceased’s family were supportive of Mr. Nahdee and were not asking the Crown at all to secure a penalty involving incarceration. He was genuinely remorseful for his actions and deemed to be a low risk to re-offend. Importantly, he was not in custody pending trial and had not consumed alcohol and chose not to do so from the time of his arrest until the court dealt with him.
Somewhat in a bit of a contrast to that case is the decision of Maxime Morin Leblanc, a rather recent decision, April 15th, 2014. Justice Lalonde of the Superior Court dealt with the charge. Mr. Morin Leblanc drove his Honda Accord with two passengers the wrong way on a downtown Ottawa street. At a busy intersection, he struck and killed a pedestrian, Alexandra Dodger. She was simply at the wrong place, at the wrong time. She was crossing the street. He was 28 years old and single. He was a student at Ottawa University and at the same time, had been working for the federal government. He was a first time offender and remorseful. The Crown sought a global sentence of seven years. The defence sought two years less a day. Justice Lalonde noted that the recent court decisions from the Ontario Court of Appeal were giving the message that sentences for these types of offences had increased. After considering all the case law, he imposed a global sentence of four years, plus a ten year prohibition.
In this case, the lawyers have done their homework and they understand what the appropriate range is. From what I captured by the submissions, the suggestion is that the range currently rests in the area of four to five years. I accept this to be the case. I am familiar with another case that was not mentioned, that of R. v. Cummer, decided by the Ontario Court of Appeal, in 2011. I will read a very brief passage that I am interested in, as follows: “As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this Court upheld a sentence of four to five years for such sentences.”.
Now, it should be noted that in Justice Lalonde’s case, he imposed a sentence after the conclusion of a judge and jury trial. In this case, the joint submission provided by counsel is not four to five years, but five years. Of importance, especially with reference to the Crown’s submission, is that the five year sentence as advanced jointly is further to a plea of guilt. As earlier indicated, a trial has been avoided. Mr. Carter has accepted responsibility for what he has done and we are proceeding on that basis.
So it is against this backdrop that the court must strongly consider the position advanced by counsel. There is also a lot of case law giving us proper instructions as to when to disagree with the lawyers on a joint position. Sentencing is inherently an individualized process where the judge has wide discretion. In order to arrive, however, at a fit and proper sentence, the court is expected to examine the specific circumstances surrounding the case and to consider case law in terms of general ranges of sentencing.
In my view, knowing what I do, and although I fully understand that it may not be in sync with what some members of the public personally feel, a sentence of five years for this offence, or these offences all of which occurred at the same time cannot be said to be outside the guidelines set by the courts, especially the courts who have made pronouncements on appellate reviews. I know that there has been an upward trend in the length of sentences imposed for drinking and driving and that is manifesting itself today. All of this to also say on a final basis that the judicial system understands society’s abhorrence for these tragic situations.
Again, I thank those of you who have chosen to be here and participate.
In terms of the sentence to be pronounced, I would ask that you stand, Mr. Carter, please. I know, Mr. Carter, that by virtue of the sentence being imposed that you will have time to think and reflect about what has happened. In your mind, you will probably many times be saying to yourself, if I could turn back the clock, I would. Everybody in this room would do that if they could, but nobody can accomplish it and we have to face the reality of the day. I know you have had some lengthy discussions with your lawyer before making the decision to plead guilty here today. I think, as I may have said earlier, that it was important for you earlier to say those brief comments out loud to the family. They, of course, will be living on with the consequences of what has happened, but speaking of yourself, I do not think that too many days will go by where you will not think of the tragedy that you have caused and think of what has occurred today as a result.
All that being said and having determined that the lawyers are on target, so to speak, with the joint proposal, sentence imposed shall be as follows.
On the first count of the information of August 21st, 2014, on the charge of impaired causing the death of Dean, or DJ Hancock, there will be a period of custody of five years less 113 days of pre-trial custody to be served in federal prison.
On the second charge of impaired causing bodily harm to Mr. Dan Cassio, there will be a period of custody to be served concurrently of six months jail.
On the third count, breach of undertaking, a period of custody of six months jail concurrent.
On the separate information alleging the occurrence upon which you were found guilty January 30th, 2014, there will be a period of custody of 30 days concurrent.
There will be a prohibition from you operating a motor vehicle on any street, road, or highway for a period of ten years. That will run concurrent on two driving charges on the main information of August, 2014. There will also be a concurrent prohibition from operating a motor vehicle on any street, road, or highway, on the January 30th, 2014 count, of one year.
Mr. Kurke has mentioned DNA because of the severity of these matters. No issue has been taken in opposition to that. Notwithstanding, I think that DNA is proper in this case and there will be an order that you provide your DNA by way of a small sterile sample of blood taken for analysis and purposes of the National Data Bank.
Is there anything, Mr. Kurke, that I have not touched upon, or you need clarification on?
MR. KURKE: No, Your Honour. I believe the remaining counts on the informations have been marked withdrawn.
THE COURT: They have. Mr. Bourgeois, on your side?
MR. BOURGEOIS: Nothing at all, Your Honour. Thank you very much for your consideration.
THE COURT: Thank you. Good luck on your rehabilitation. That concludes our proceedings on this important case. Again, thank you counsel and I thank those members of the public, but importantly, friends and family for being here today. I think it was important for them.