Court File and Parties

Date: 2014-03-24

Court File No.: 13-05752 Central East Region-Newmarket

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christian Antonio De Freitas

Before: Justice Peter C. West

Oral Submissions heard on: March 24, 2014

Sentence Imposed on: March 24, 2014

Counsel:

• Mr. J. Costain for the Crown
• Mr. J. Goldglass for the accused

WEST J.:

Introduction

[1] On December 23, 2013, Christian De Freitas entered a plea of guilty to a charge that on July 14, 2013 he was involved in an accident and knowing that bodily harm had been caused to another person, namely, Christopher Abbs, and being reckless as to whether death resulted from the bodily harm, failed to stop his vehicle, with intent to escape civil or criminal liability. An agreed statement of facts was filed as Exhibit 1. A pre-sentence report was ordered and sentence was adjourned.

[2] On March 24, 2014, I heard oral submission from both counsel. A number of exhibits were filed by both sides, including a presentence report, dated February 7, 2014, prepared by Probation and Parole Officer, Diana Meadwell (Exhibit 3); Victim Impact Statements from John Abbs, Christopher's father; Linda Abbs, Christopher's mother; Jennifer Abbs, Christopher's sister; Kaitlin MacLeod, Christopher's girlfriend; John Givens, Christopher's brother-in-law; Randy Lickiss, Lucas Nakamichi, Ryan Hamilton, Kole Draganac, Megan Fitzakerley, all good friends of Christopher; and Mysti Hamilton, Ryan Hamilton's mother (Exhibit 4); a counselling report from Denise D'Alessandro, M.A., dated November 28, 2013 (Exhibit 2). I was also provided a number of character letters by Mr. Goldglass from Ian and Joanne De Freitas, Christian's parents; Ian De Freitas, Christian's older brother; Sara Phair, Christian's sister; Kristin Quinn, Christian's teacher; Courtney Baird, Christian's supervisor and Terri Defend, Christian's manager at MacDonald's; a letter from Matthew Brown, Salvation Army Thrift Store manager and a letter of apology to Christopher Abbs' family and friends (Exhibit 2).

[3] I also received extensive casebooks from both Crown and defence and heard oral submissions as to what each party submitted was an appropriate sentence for Mr. De Freitas' conduct on July 14, 2013.

Position of the Parties

[4] Both parties agree that the primary, paramount sentencing principles in this case are denunciation and general deterrence. There is very little, if any, disagreement between the parties as to the mitigating and aggravating circumstances surrounding this offence.

[5] The Crown argues that the appropriate sentence is one of 5 months in custody based on a number of decisions in the Ontario Court of Appeal as well as a 2 year driving prohibition. The Crown is also seeking a period of probation to follow Mr. De Freitas' jail sentence. The Crown also submits this is an appropriate case to make a DNA order.

[6] The defence submits that in view of the youthful age of the defendant and the fact that he comes before the court as a first offender; the appropriate sentence is one 90 days in custody and 2 year driving prohibition. The defence also submits that Mr. De Freitas is agreeable to being placed on probation with conditions after the completion of his jail sentence. The defence makes no submissions respecting the imposition of a DNA order.

Factual Background

[7] This is a most tragic case. An innocent young teenager, 19 years of age, was killed as he was driving his BMX bicycle on an unlit road. Christopher Abbs had been visiting his girlfriend in the early morning hours of July 14, 2013. He left her home at approximately 3:00 a.m. to return to his parents' house. His drive would have taken him about an hour. His girlfriend spoke to him on his cell phone at approximately 3:30 a.m.

[8] Mr. Abbs BMX bike was in good condition but it did not have any lights or reflectors on the back. He was travelling in the eastbound lane on Pollack Road, which is not well lit. He was not wearing a helmet. At approximately 4:40 a.m., Deborah Camacho and Donald Lowe were driving westbound on Pollock Road. In front of 3406 Pollock Road they saw a male person lying in the middle of the eastbound lane. He was breathing but not moving or speaking. Mr. Lowe called 911.

[9] York Regional Police Constable Runge was the first person on scene. Fire and EMS personnel arrived and immediately began to treat Mr. Abbs, who was lying on his back with vomit around his mouth. Mr. Abbs' bicycle was lying in the westbound lane of Pollock Road. The rear wheel was destroyed. Some distance away was Mr. Abbs' backpack, hat and cell phone. Also on the roadway was considerable debris from a motor vehicle, which was later found to be consistent with the Infiniti vehicle driven by the defendant, Christian De Freitas. This vehicle was not at the scene of the collision. The speed of the vehicle was estimated by an accident reconstructionist to be approximately 70 km/hr. The posted speed is 60 km/hr.

[10] Mr. Abbs had life threatening injuries and was transported to St. Michael's Hospital in Toronto. He was found to have various abrasions and contusions, which would not have been serious; however, it was discovered he had a serious closed-skull head injury. It was determined at the hospital that nothing could be done and he was declared brain dead, the cause of death being blunt force head trauma. A decision was made by his family to donate his organs, which was done.

[11] The next day, following media reports naming the suspect vehicle as a Nissan or Infiniti, Christian De Freitas surrendered to police in the company of his parents and a lawyer. He advised police he was the driver of the vehicle involved with the fail to remain collision. He further advised police the vehicle in question was at his parents' residence.

[12] The motor vehicle was seized by police and subsequent forensic examination confirmed the vehicle fragments found by police at the scene came from the Infiniti driven by Mr. De Freitas.

[13] Mr. De Freitas provided a cautioned statement to police with his counsel. On July 13, 2013 he had worked, gone to the gym to work out and then went home. At some point in the early morning hours on July 14, 2014 he left his home with his father's car. He told the police he was driving eastbound on Pollock Road when he struck what he initially believed was a deer and he continued driving home. He admitted in his statement that at some point prior to arriving at his home he realized he had hit a person. When he arrived home he told his father he had hit a deer coming home and showed his father the significant damage to the car. Mr. De Freitas then left for work. When he returned home from work his father confronted him about hitting a person. Christian admitted to his father what had happened and a lawyer was called, which resulted in Christian surrendering to the police.

Victim Impact Statements

[14] I received 10 victim impact statements from various members of Christopher Abbs' family and friends, as I have set out above. The Crown read a number of these VIS and 4 individuals, Kaitlin MacLeod, Jennifer Abbs, Linda Abbs and John Abbs read their VIS. These statements poignantly set out the scope of the tragedy and the horrific impact of Christopher's death on those who were close to him. Words cannot adequately describe the depth of the pain and loss experienced by the Abbs family and their friends. Nothing I say or do will undo the tragic consequences of the collision that occurred on July 14, 2013. There is not anything I can do that will make the Abbs family whole again or to make their grief go away. It is trite to talk about the passage of time heals all things, yet it is my hope that Christopher's family and his friends will honour his memory by imitating the values that come through as I read and then listened to those who loved and cared for Christopher describe the kind of person he was. I have no doubt he was a special young man and he will be missed greatly.

The Offender

[15] At the time of the collision Mr. De Freitas was 18 years of age, just shy of his 19th birthday. He has no criminal record. He has no record of Highway Traffic Act violations.

[16] Mr. De Freitas graduated from high school in June 2013 and was admitted to McGill University for Business with a football scholarship. However, as a result of the charge he faced following his failure to remain at the scene of an accident, he chose to continue working at MacDonald's restaurant, where he had been working part-time and since September 2013 has been working full-time.

[17] Mr. De Freitas resides with his parents and his older brother Ian. The letters provided in support and the pre-sentence report describe Christian as a kind, caring, compassionate and helpful young man. His co-workers and his teacher described him as hard-working, respectful and dependable.

[18] All of the letters and the pre-sentence report reflect the sincerity of Christian's remorse for his conduct. His family and co-workers describe him as being despondent by the fact that he caused the death of Christopher Abbs. His counsellor, Denise D'Alessandro, indicates in her report that throughout his therapy sessions Christian "exhibited a profound sense of personal responsibility for his actions and a high level of sensitive awareness of the damage the incident has inflicted upon all involved." His letter of apology reflects the comments by his counsellor and demonstrates a thoughtful and sensitive understanding of the devastation wrought upon Christopher's family and friends by Christopher's death. The probation officer states in the pre-sentence report, "there is no question about [Mr. De Freitas'] remorse and guilt for his actions."

[19] Christian has the unconditional support of his family. He has completed 100 hours of community service work at the Salvation Army Thrift Store prior to entering his guilty plea.

Analysis

Mitigating Circumstances

[20] Mr. De Freitas is a youthful first offender. He has strong family support, as well as support from his employer and co-workers.

[21] He entered a plea of guilty at an early opportunity and I was advised by his counsel that this has always been Mr. De Freitas' instructions. In fact, this matter was the subject of a number of pre-trial conferences where his previous counsel, Mr. Bruce McChesney, indicated it was Mr. De Freitas' instructions from the beginning to resolve this matter by way of a guilty plea. I accept that submission. He has demonstrated tremendous insight into the tragic consequences of his actions during the early morning hours of July 14, 2013 and the impact it has had and will continue to have on the Abbs family and friends, as well as his own family. From the material that has been provided to me it is apparent he is deeply remorseful. His guilty plea reflects that. His regret is genuine. His actions and the tragic consequences that followed, I believe, will haunt Mr. De Freitas for the rest of his life. His demeanour in court also demonstrates his remorse as I observed him to be weeping as Christopher's family members read their VIS.

[22] He has also accepted complete responsibility for his actions, which is reflected in the PSR. His guilty plea has significantly shortened the amount of time required to deal with these charges. He recognized that a preliminary hearing and trial would have caused the Abbs family to relive the events and he has done what he can to conclude the criminal proceedings quickly. He has also saved the administration of justice the cost and expense of a preliminary hearing and trial.

[23] I should point out that Mr. De Freitas is charged only with offences pursuant to s. 252 of the Criminal Code; namely, fail to stop at the scene of an accident to escape civil or criminal liability. He pled guilty to s. 252 (1.3), knowing that bodily harm had been caused to another person involved in the accident and being reckless as to whether death of the other person resulted from that bodily harm. He was not charged with any other offence under the Criminal Code or the Highway Traffic Act. He was not charged with dangerous driving causing death or any criminal offences related to his driving conduct that occurred prior to the accident. In this way, this case cannot be compared to other cases where death has occurred as a result of impaired or dangerous driving. Mr. De Freitas' act of hitting the victim is in law, considered an accident. His offence is failing to stop and render assistance when he had the legal and moral obligation to do so.

[24] Mr. De Freitas is a young man of previous good character, who is gainfully employed. He is hard working and responsible according to everyone who wrote letters and all those persons contacted by the probation officer.

[25] An added element in Mr. De Freitas' case is that he is a youthful first offender. At the time of the commission of this offence, he was 18 years of age, still residing with his parents, about to embark upon a university education.

[26] In R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[27] In R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) Rosenberg, J.A. made the following comments concerning R. v. Stein, supra: (at paras. 18 and 19)

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".

Aggravating Circumstances

[28] The most serious aggravating circumstance in this case is the fact that Mr. De Freitas was aware he had struck a person with his car, yet he did not stop to render assistance. In fact, he continued the lie when he arrived at home and told his father he had struck a deer. It would be speculation to find that the result of Mr. De Freitas' collision with Mr. Abbs' bicycle would be any different if Mr. De Freitas had stopped to render assistance as the facts indicate the seriousness of Mr. Abbs head injury. Certainly, Mr. De Freitas will have to live with that possibility for the rest of his life.

Sentence

[29] No two cases are identical on their facts and sentencing is therefore very much linked to the peculiar and specific facts of the case. I was provided extensive casebooks containing numerous cases involving fail to stop at the scene of an accident, as well as cases involving the sentencing principles applicable to youthful first offenders.

[30] In my view, under the law dealing with conditional sentences under s. 742.1 of the Criminal Code, which existed at the time of the commission of this offence, a conditional sentence was no longer an available sentencing option. During the judicial pre-trial, both counsel agreed with this assessment. However, if these offences had been committed 5 years ago, a conditional sentence, having regard to the precedents set by the Ontario Court of Appeal, would have been a realistic and probable sentence having regard to Mr. De Freitas' background and the circumstances surrounding the fail to stop (see R. v. Hussein, 2011 ONCJ 828). However, under the provisions of the Criminal Code in July 2013, Mr. De Freitas must be sentenced to a custodial sentence. It is my view; this offence is of such gravity that a custodial sentence is the only option. In fact, both counsel agree with that assessment.

[31] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of mitigating factors and circumstances which I must consider in determining an appropriate sentence.

[32] Both counsel agree that the predominant paramount sentencing principles applicable in a fail to stop at the scene of an accident where death results are denunciation and deterrence. (See R. v. Ramdass, [1982] O.J. No. 177 (Ont. C.A.); R. v. Gummer, [1983] O.J. No. 181 (Ont. C.A.) and R. v. Fortin, [1984] O.J. No. 158 (Ont. C.A.)) In cases where there is also a driving related offence such as impaired driving or dangerous driving, that aggravating factor is reflected in jail sentences of a much longer duration. That aggravating factor is not present in this case.

[33] It is also agreed that the facts of this case require a custodial sentence to properly reflect those two sentencing principles. Sentencing is highly individualized and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances. I am mindful of the cases cited by Mr. Goldglass, some of which I refer to above, which indicate that I must not ignore, in the case of a youthful first offender, the principles of rehabilitation and re-integration into the community.

[34] The jurisprudence indicates a custodial sentence for these types of cases in the range of three months to six months. (See Ramdass, supra; Gummer, supra; Fortin, supra; R. v. Aman, 2012 ONCJ 654; R. v. Sriranjan, [2013] O.J. No. 493 (Ont. C.J.); R. v. Eichler, 2012 ONCJ 480; and R. v. Schmitt, 2011 ONCJ 546). It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects.

[35] A sentencing hearing, as a matter of law, searches for a just and fair result, having regard to the legal precedent in the Province of Ontario and the application of sentencing principles to the facts of the specific case at hand.

[36] As I have indicated, the Abbs family's horrific loss cannot be compensated by this court or the sentence that I will impose. Most of the decisions provided to me speak of sentences in the 3 month to 6 month range where there are no underlying driving offences. In addition to the principles of denunciation and deterrence, which I have referred to above, I must also consider the principle of restraint under s. 718(2)(e), which relates to a youthful first offender. The Ontario Court of Appeal in the decision of R. v. Batisse (2009), 93 O.R. (3d) 643 at paras. 32-33, addressed the principle of restraint stating:

It is an important consideration, because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration, and whereas here incarceration must be imposed the term should be as short as possible and tailored to the circumstances of the accused (see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at p. 545).

[37] Further, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of sentence. In imposing a lower sentence given to a first offender, the Ontario Court of Appeal stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5 (referred to in Batisse, supra):

…general deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant. A first sentence of imprisonment "should be as short as possible and tailored to the individual circumstances of the accused rather that solely for the purpose of general deterrence": see R. v. Priest.

[38] In my view, having regard to the mitigating and aggravating circumstances I have outlined above, it is my sentence on the charge of fail to stop at the scene of an accident that Mr. De Freitas is to be incarcerated for a period of 90 days in the reformatory. I am prepared to allow Mr. De Freitas to serve this sentence on an intermittent basis having regard to his youth and the fact he is a first offender. He is to be taken to the jail today and be released after processing, and to return on March 28, 2014 and each consecutive Friday thereafter, on or before 8 p.m. and be released on or about 6 a.m. the following Monday until the sentence is fully served according to law.

[39] Mr. De Freitas will be subject to a probation order for a period of 2 years, commencing today with the following conditions:

1. Keep the peace and be of good behaviour

2. Report to a probation officer forthwith and thereafter as required

3. Reside at address approved by Probation Officer

4. Appear at the jail on time and in a sober condition without having any alcohol or non-prescription drugs on his person or in his system

5. Be subject to a curfew while on probation from 10 pm until 6 am, unless he is working or attending school and has received his probation officer's permission

6. Complete 100 hours of CSO

7. Attend for counselling as recommended and directed by your Probation Officer

8. Sign any releases

9. Not operate a motor vehicle or be in the driver's seat of a motor vehicle.

[40] In addition, there will be a prohibition order prohibiting you from operating a motor vehicle anywhere in Canada for a period of 2 years.

Released: March 24, 2014

Signed: Justice Peter C. West