Court File and Parties

Court File No.: Toronto 4817-999-14-70017099-00

Date: 2015-06-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ranko Stupar

Before: Justice S. Ford Clements

Plea entered: March 31, 2015

Submissions on Sentence heard: June 3, 2015

Reasons for Sentence released: June 18, 2015

Counsel:

• Ms. Nancy Krigas, counsel for the Crown
• Mr. Christopher Morris, for the defendant Ranko Stupar

CLEMENTS J.:

Offence

[1] On March 31, 2015, Ranko Stupar pled guilty to one count of careless driving contrary to s. 130 of the Highway Traffic Act of Ontario.

Circumstances of the Offence

[2] Ranko Stupar, a 50-year-old male, was operating a minivan on July 16, 2014 at approximately 4:15 pm. He was driving his motor vehicle southbound on McRae Drive and approached the intersection of McRae Drive and Millwood Road, in the City of Toronto.

[3] The north and southbound lanes on McRae Drive were separated by a solid yellow line near the center of the road, and there was a single lane in each direction. McCrae Drive was in good condition, dry and level. The visibility was good and there were no obstructions of his view. It was a posted 40 kph zone. The sidewalks on either side of street were separated by angled street parking spaces.

[4] Traffic was regulated at the intersection with Millwood Road by pedestrian signal lights and four-way automated traffic signals (or lights) for each direction of traffic. They were in good working order at the time.

[5] This intersection is located in an area that was described as primarily residential, and included a park at the northeast corner, and a church at the northwest corner. The photographic evidence indicated that there were telltale signs that this was an area likely frequented by children, particularly in the summer months. These included, a library on the east side; a posted traffic symbol that children were in the area; a children's playground and park, as well as a baseball diamond.

[6] As Mr. Stupar approached the intersection the traffic light was red. There was a white "zebra" style crosswalk on the north side of the intersection. There was a white stop bar located 7.33 metres north of the north edge of that crosswalk. Posted adjacent to the stop bar was a sign which read: "Stop Here on the Red Signal". Mr. Stupar failed to stop at either the stop bar or the crosswalk, although he slowed as he entered the north crosswalk. He proceeded against the red light, through the crosswalk, and made a right turn onto Millwood Road.

[7] Georgia Walsh, a six-year-old female pedestrian was running westbound within the north crosswalk on Millwood Road, from the northeast corner of McRae Drive. When she stepped off the curb, the pedestrian signal was flashing a red hand and the countdown timer was at 5 seconds. The accident reconstruction report concluded that Ms. Walsh was already crossing in the crosswalk when Mr. Stupar's vehicle approached the area of the stop bar.

[8] Ms. Walsh was struck in the crosswalk, near the northwest corner of the intersection, by the front driver's side of Mr. Stupar's vehicle and knocked down to the roadway. She was overrun by the front driver and rear driver side tires. Had Mr. Stupar stopped his vehicle at the north stop bar, it would have taken him 3.9 seconds to travel from that point to the point of impact. There was sufficient time for Ms. Walsh to cross the street safely had Mr. Stupar stopped at the stop bar. Ms. Walsh had the right of way.

[9] After the impact, Mr. Stupar continued westbound on Millwood Road, west of the intersection, and only brought his motor vehicle to a complete stop when directed by witnesses to do so. The distance he travelled from the point of impact until he was stopped was 30.10 metres, although witness' summaries referred to in the accident reconstruction report suggest the distance was 30 to 40 feet. It was difficult to calculate this distances as Mr. Stupar car had been moved to a side street prior to the commencement of the reconstruction investigation.

[10] Mr. Stupar never saw Georgia Walsh before she was struck and was unaware that he had struck anyone until after he stopped his vehicle.

[11] Ms. Walsh sustained serious injuries and was transported to the Hospital for Sick Kids where she succumbed to her injuries.

[12] The accident reconstruction report under tab 2 of Exhibit 2, indicated the average speed of Mr. Stupar's vehicle to be about 23 kph. The video at tab 4 of Exhibit 2, shows Mr. Stupar's vehicle approaching the intersection and its contact with the deceased. Both the report and the video confirm that there were two weight shifts in the vehicle which occurred when the vehicle tires ran over Ms. Walsh's body. The accident reconstruction report calculated the maximum speed at which Mr. Stupar's vehicle could have operated around the northwest corner was 27 kph.

Victim Impact Statement

[13] The victim impact statement was heart wrenching and remarkable. It was wrenching because Georgia's mother described in poignant detail all the experiences and intimacies they would no longer share as a family. It was remarkable in its generosity of spirit towards Mr. Stupar. She forgave him. She acknowledged that vengeance, spite and angry would not serve her, her family or Mr. Stupar's family. Having experienced a parent's "worst nightmare", she has chosen a path of healing and seeks to honour her daughter's memory. While noting that Mr. Stupar had made a "horrible mistake", she acknowledged Mr. Stupar's own pain and remorse. She suggested that Mr. Stupar could honour Georgia's memory by living his life in a manner that gave back to the community for a life taken too soon.

The Circumstances of the Offender

[14] Mr. Stupar was born in Bosnia and came to Canada in 1999. He is a Canadian citizen. He lives alone and has no children. Two sisters, one who lives in Toronto and the other in the United States, together with his mother were in court during the sentencing hearing and were there in support of him. I was told that immediately after this accident his mother went to live with him for fear that he might harm himself. He has no criminal record. He has one Highway Traffic Act conviction for speeding at 65 kph in a 50 kph zone, from January 2012.

[15] Mr. Stupar described himself to the probation officer, who prepared a pre-sentence report, as a "...caring person, one who respects others, including society's institution." Counsel for Mr. Stupar offered specific examples of his client's good character, from his experience in Bosnia while in the military, and his charitable work in Canada. Counsel also noted that his client was cooperative with the police. Mr. Stupar gave a full statement to the police after being cautioned and then turned himself into the police, two weeks following the incident, when it was finally determined the nature of the offences with which he was being charged. Counsel described an instance where Mr. Stupar assisted the police with a criminal investigation of an unrelated matter.

[16] A letter from Mr. Stupar's employer was filed. He confirmed that Mr. Stupar had worked for him for many years as a subcontractor and that he was "…hard working, reliable and responsible". Over the years when his company provided charitable services to the Serbian community, Mr. Stupar readily volunteered his services. His employer advised that many of his customers asked for Mr. Stupar's services on their recurring projects.

[17] The consequences flowing from Mr. Stupar's carelessness have had a devastating impact on his life. He is too anxious to drive. He has difficulty being a passenger in a motor vehicle. His inability to drive has reduced his opportunities to work as a floor installer. He told the probation officer that the incident weighed heavily on his mental health and he experiences confusion and is often unsettled. He related instances of missing trains, getting on wrong buses and missing appointments.

[18] Mr. Stupar has been seeing a psychiatrist, Dr. Natalie Erdmann, since October 2014. She spoke with the probation officer. Dr. Erdmann described Mr. Stupar's demeanour from their initial meeting as "...exhausted, thin, devastated and on a down-stead". She confirmed that Mr. Stupar has been diagnosed with Post-Traumatic Stress Disorder and severe Major Depressive Episodes.

[19] While Mr. Stupar is participating in weekly psychotherapy sessions, Dr. Erdmann is concerned that he is "...not functioning well" and that he has difficulty concentrating on day-to-day tasks, including work. She also confirmed that his dysfunction is directly related to the accident and described him to be "...beyond remorseful". Dr. Erdmann indicated that he continues to "...re-live the incident" and has "flashbacks."

Position of the Parties

[20] The Crown submitted that the appropriate disposition was a sentence of 4 months in custody and 2-year driving prohibitions. The Crown took no position about whether a probation order was required but acknowledged that it might be something the Court might consider in light of the victim impact statement.

[21] The Defence submitted that the principle of denunciation and deterrence could be met in this case by the imposition of a $2000 fine and a 2-year driving prohibition, both of which he argued were punitive. Moreover, Counsel submitted that probation and an order of community service were appropriate as that addressed in part the issue of restoration. While no sentence can restore the life lost it is nonetheless a way in which Mr. Stupar can repay the community for his carelessness and address the deceased's family's request that Mr. Stupar conduct his life in a manner that honours Georgia Walsh.

[22] The following jurisprudence was relied upon by the Crown or the Defence in support of their respective sentencing positions: R. v. Kinch, [2004] O.J. No. 486; R. v. Trigiani, [2001] O.J. No. 6111; R. v. Laycock, [1996] O.J. No. 3846; R. v. Miller, 2013 BCSC 1453; R. v. McKenzie, 2005 ABCA 313; R. v. Martinez, [1996] O.J. No. 544; R. v. Unsworth, [2015] O.J. No. 135; R. v. Randhawa, 2011 BCPC 372; R. v. Gill, [2009] O.J. No. 5842; R. v. Gibbs, [2005] A.J. No. 1948; R. v. Chabot, [2005] O.J. No. 6120; R. v. Pellerin, 2005 ONCJ 522; R. v. Messercola, 2005 ONCJ 6; and R. v. Grise, [1999] O.J. No. 5352. The Crown readily acknowledged that the ranges of sentence for careless driving causing death was "all over the place" and included custodial and non-custodial sentences.

Crown Submissions

[23] The Crown acknowledged the mitigating circumstances of Mr. Stupar's guilty plea, the absence of a criminal record, his remorse and the lasting impact that this incident has had on him financially and emotionally.

[24] While the Crown acknowledged that Mr. Stupar's manner of driving met the definition of careless driving, the Crown submitted that Mr. Stupar in all the circumstance ought to have had a heightened awareness of the risk posed by the area in which he was driving. This was not carelessness at the low end of the spectrum. The Crown submitted it was reasonably foreseeable that children would be playing in the area and that extra precaution was required of him. His failure not only to keep a proper lookout but his blatant disregard of the stop bar elevated his moral blameworthiness. Moreover his level of distraction was high given that he was unaware that he had struck a pedestrian and continued to drive after impact.

[25] The Crown submitted that this was evidence of an extended absence of due care and attention, as well as choice by Mr. Stupar not to obey the rules of the road.

[26] The Crown reviewed the jurisprudence to support a custodial sentence and submitted, for the foregoing reasons, Mr. Stupar's conduct and moral blameworthiness was higher than in the cited cases where custody was imposed.

[27] The Crown submitted that nothing short of a custodial sentence would satisfy the principles of denunciation and deterrence. Failure to impose a custodial sentence would fail to acknowledge the harm caused.

Defence Submissions

[28] The Defence acknowledged that the Crown had fairly and accurately identified the aggravating and mitigating factors in this case.

[29] Counsel emphasized Mr. Stupar's genuine remorse. Apart from the remorse demonstrated by his plea, which spared the deceased's family the trauma of a trial, Counsel made reference to the fact that his client has expressed his remorse to counsel, to the probation officer, to the deceased's family, to his psychiatrist and to the Court. Counsel noted Dr. Erdmann's comment in the pre-sentence report that Mr. Stupar is "beyond remorse".

[30] Counsel also emphasized the fact that Mr. Stupar was cooperative with the police and provided a full statement after he was cautioned, when he was not required to do so. When it was decided days or weeks after the incident that Mr. Stupar would be charged with careless driving, he surrendered himself to the police.

[31] Counsel noted that Mr. Stupar has no criminal convictions and has but one prior conviction for speeding under the Highway Traffic Act.

[32] Counsel acknowledged that the intersection of Millwood Road and McCrae Drive was dangerous and called for a higher level of care and attention. Counsel accepted that there were a number of telltale signs that required heightened driver awareness at this intersection.

[33] That said, Counsel submitted that Mr. Stupar's failure to exercise the due care and attention demanded of him did not constitute a marked departure from prudent conduct. It was not dangerous driving. Counsel submitted that the video of the incident shows Mr. Stupar's vehicle slowing down twice as it approached the intersection. He failed, however, to stop at the stop bar and rolled through the intersection, and completed his right hand turn without being aware that he had struck the deceased and run over her. His conduct was not intentional or wilful.

[34] Counsel agreed with Mrs. Walsh's characterization of the event in her victim impact statement as a "horrible mistake".

[35] Counsel disagreed with the Crown submission that Mr. Stupar's failure to see the deceased was aggravating. To the contrary, Counsel submitted that Mr. Stupar did not see the deceased because he was not paying attention and this is a necessary part of the offence of careless driving.

[36] Counsel was unable to provide a clear explanation as to why Mr. Stupar was not paying attention, or failed to see the deceased. Counsel offered possible explanations but they did not amount to anything beyond possibility.

[37] Counsel reviewed some of the jurisprudence relied upon and suggested how and why the cases where custody was imposed could be distinguished.

Discussion

[38] Section 130 of the Highway Traffic Act provides that: "Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway..."

[39] Whether the driving was careless is dependent upon the acts or omissions of the driver, not the consequences. See: R. v. Kinch, [2004] O.J. No. 486 at paras. 51-53. Nonetheless, the fact that Mr. Stupar's driving caused Ms. Walsh's death is a factor that is appropriate to take into account when considering a fit sentence for his careless driving. As the Ontario Court of Appeal noted in R. v. Martinez, [1996] O.J. No. 544 at para. 11: "The appellant's momentary distraction or preoccupation obviously caused him to drive without due care and attention. The consequences of his carelessness were objectively foreseeable and added to his moral culpability in the circumstances."

[40] However, the Court in Martinez at para. 12 also noted that there was nothing "intentional or wilful" about the appellant's driving. It was not dangerous and did not represent a "marked departure" from prudent driving as is required for dangerous driving. As Supreme Court of Canada noted in R. v. Roy, 2012 SCC 26 at para. 1: "The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction." In para. 2 the Court further observed: "... Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put it in R. v. Beatty, 2008 SCC 5 at para. 34, 'If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.' Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless."

[41] In R. v. Nur, 2013 ONCA 677 at para. 83, Doherty J. wrote: "...moral culpability is generally reflected in a mens rea requirement". While the consequences of Mr. Stupar's conduct must be consider in determining a fit sentence, his level of moral blameworthiness, which is less than the fault requirement for dangerous driving, must also be considered. As noted in Martinez at para. 10: "We do not think much is to be gained by attempting to grade the appellant's driving within the range of driving which would constitute Careless Driving. It will suffice to say that the appellant failed to keep a proper lookout that is he failed to drive with due care and attention..."

[42] The fundamental principle of sentencing, codified in s. 718.1 of the Criminal Code, is that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Proportionality has been said to be "… the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender". See: R. v. Hamilton and Mason at para. 87.

[43] A sentence that reflects the gravity of the offence is closely tied to denunciation, justice for victims and the confidence of the public in the criminal justice system. A proportional sentence should not exceed that which is appropriate having regard to the moral blameworthiness of the offender. This second aspect of proportionality introduces an element of restraint.

[44] When applying these principles it is important to consider as Doherty J. observed in Hamilton and Mason, supra, at para. 93 that "...the gravity of the offence may point in a different sentencing direction than the culpability of the individual offender." Sentencing is an individualized process and there is no such thing as a uniform sentence for any offence. See: R. v. M.(C.A.).

[45] I have reviewed and considered the cases provided to me by Counsel.

[46] In Trigiani, even though the driving conduct was not wilful or intentional, and even though it was not the worst case of careless driving, the Summary Conviction Appeal Court upheld a 30-day intermittent sentence imposed after a 6-day trial. It was found to be aggravating that the accused, who fell asleep at the wheel, did not take steps to ensure he would remain alert at night. In addition the appellant took no evasive actions in the face of the flashing lights of an emergency vehicle. There was also abnormal driving in the form of a delayed lane change as the appellant approached the point of impact. Moreover, the appellant failed to apply his brakes and was driving too slow. The Appeal Court found that sending a message to the community, general deterrence and the consequences were appropriate considerations justifying the custodial sentence.

[47] In Laycock, the Summary Conviction Court upheld a 60-day sentence imposed after a trial. The Appeal Court held that incarceration was not a necessary penalty for general deterrence but that it was in the range. The appellant struck and killed a cyclist. Other motorist had passed the same cyclist and there was no explanation as to why the appellant struck him.

[48] In Miller, the 3-month jail sentence imposed following a guilty plea was upheld by the British Columbia Summary Conviction Appeal Court. The appellant's "atrocious" driving record consisting of 48 violations and the relatively serious driving misconduct were aggravating factors. In particular, the Appeal Court emphasized the fact that the appellant's driving record was relevant to the issue of deterrence and the fact that several driving prohibitions had not deterred his conduct. As well the Appeal Court concluded that the appellant's driving did not amount to the most serious lack of care but neither was it at the lower end of the spectrum. There, the egregious driving record seems have driven the need for a custodial sentence.

[49] In McKenzie, the Alberta Provincial Court imposed a 3-month intermittent sentence after a plea of guilt largely because the judge concluded that there should be an automatic custodial sentence where death ensued from an act of careless driving. That principle has not been adopted in Ontario. See: Martinez and Messercola.

[50] In Martinez, the Ontario Court of Appeal reduced a 90-day intermittent sentence to time served (20 days) and confirmed that the consequence of the careless driving was a factor to consider on sentence. Martinez failed to stop at two prominently displayed stop signs at an intersection. He collided with another vehicle causing it to roll over. The victim died of his injuries.

[51] In Unsworth, the Provincial Offence Appeal Court substituted a fine of $2000 for a 20-day intermittent sentence imposed following a plea in Provincial Offence Court to careless driving. The carelessness admitted was distracted driving not involving a use of a handheld device in which case the sentence would have been harsher.

[52] In Randhawa, a newly licensed driver made a left turn directly into the path of a scooter at a busy intersection, causing the drivers death. The accused had not seen the scooter when she initiated her left hand turn. The British Columbia Provincial Court consider that the victim's death was a direct consequence of her failure to drive with due care and attention. The Court also considered the impact on the victim's family as a factor in fashioning a fit sentence. Having considered those factors and the fact that driving was a privilege not a right, the Court imposed a fine of $1500.

[53] In Gill, the Court imposed a fine of $1000 after a trial. The accused pulled her transport truck from the shoulder onto a busy highway without allowing sufficient time for motorists to manoeuvre around her large transport truck. The judge described this conduct as careless, reckless and dangerous. The accused failed to use her signal lights or four-way flashers when returning to the highway, and she was totally unaware of oncoming traffic and the vehicle which collided with her, causing the driver's death.

[54] In Gibbs, the accused was driving on a dirt road with a basketball team and failed, due to his speed, to anticipate the weather conditions at an intersection. Unable to safely stop, he elected to proceed through the intersection and collided with another vehicle. Two of his passengers died and others were seriously injured. Notwithstanding a finding that the accused had a high degree of responsibility towards the students he was transporting, the Court imposed the maximum fine of $2000.

[55] In Chabot, the judge accepted a joint submission and imposed a fine of $1000 in circumstances where the accident and loss of life happen in the "blink of an eye". The judge noted that this was not a situation where the bad driving lasted for a "lengthy period". As well, the judge was very aware that the penalties set for careless cannot adequately address the loss of life and ensuing family grief.

[56] In Pellerin, the driver carelessly drove too close behind another vehicle which partially obstructed his view. When he pulled to the right to use an exit ramp he did not see the cyclist he struck and killed. A fine of $1000 was imposed after a trial. On appeal the sentence was upheld even though the appellant's driving record proved to be more serious than the record placed before the trial judge. It included 12 prior speeding convictions, failure to remain, failure to signal and five additional non-moving violations. This sentence was upheld on appeal even though a custodial sentence was in the range.

[57] The accused in Messercola struck and killed two pedestrians while making a left hand turn into a busy intersection. The Crown sought a custodial sentence. The judge at para. 21 concluded that the Ontario Court of Appeal's decision in Martinez did not stand "…for the proposition that jail must be an inevitable consequence of every conviction of careless driving where a fatality is involved." A fine of $1000 was imposed.

[58] In Grise, a fine of $1000 was imposed after trial. The accused had one prior conviction for speeding. The trial judge recognized the tragic loss of life and the suffering experienced by the accused. He however emphasized that he could not place a value on the loss of a life by incarceration.

[59] Clearly the range of sentence is broad and it is difficult to reconcile the different sentencing outcomes where careless driving has resulted in a fatality.

[60] This is a difficult case. The theory of denunciation parallels general deterrence and it is the irresponsible behaviour that society seeks to denounce because the conduct offends our communal values. Using denunciation to justify harsher penalties because of the outcome arguably misapplies that principle. The target of denunciation like general deterrence should be conduct. If we shift the focus from blameworthy conduct to an unfortunate outcome we risk undermining the effectiveness of denunciation and may improperly rationalize substantial increases in penalty. The harm or outcome caused by a crime and the moral culpability of the offender are two distinct components of the seriousness of the crime. The degree of moral culpability is equated with the degree of responsibility, while the gravity of the offence is left to be considered in the context of the harm caused. Ultimately the sentence must be proportionate to the seriousness of the offence as determined by these two distinct variables. Where two offenders engage in identical risk-taking conduct their moral blameworthiness cannot differ simply because chance produced different outcomes.

[61] It has been written that "punitive vengeance" is the only basis upon which to justify harsher sentences on the basis of poor fortune. "In essence, a 'harm tariff' is imposed on the unlucky offender to achieve retribution for the grave consequences they caused." See: Punishing Killers Honestly: Veiled Vengeance and the Role of Outcome Luck in Sentencing by Benjamin Snow, [2015] 61 Criminal Law Quarterly 490 at p. 507. Professor David Paciocco (as he then was) suggested that vengeance is a response to a "...a primal stirring in the human breast for retribution." See: Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999), at p. 12.

[62] Professor Sanford Kadish has explained the conflict between the visceral desire for vengeance and the intellectual desire for rational justification of punishment as follows: "I freely confess, like most people, I have a feeling in my bones that it is right to punish wrongdoers even where no good comes of it. Yet I can find no persuasive justification for my feelings; that they are widely shared tells me that it is human, not that it is right." See: The Criminal Law and the Luck of the Draw (1994), 84 J.Crim.L.&Criminology 679 at p. 15. I share that point of view.

[63] The gravity of Mr. Stupar's offence as measured by the harm caused to the Walsh family is very serious and points in a different sentencing direction than does his moral blameworthiness as measured by the nature of the driving. I accept, as suggested in Martinez, little is to be gained by grading Mr. Stupar's driving conduct within the range of conduct that constitutes careless driving. This was not the worst case of careless driving. The Crown, however, submitted that Mr. Stupar was distracted for an extended period of time; that there was an extended absence of due care and attention. Not only did he not see Ms. Walsh before he struck her and knocked her to the road but he was unaware that he ran over her body and did not stop until witnesses to the accident got his attention. That proposition is somewhat undermined by the accident reconstruction report which concluded that had Mr. Stupar stopped at the stop bar it would have taken 3.9 seconds to drive to the point of impact. Not having stopped it would take even less time. His inattention at this point was momentary.

Conclusion

[64] I have considered, weighed and balanced the following factors in determining the sentence I intend to impose:

• The grave consequences of Mr. Stupar's carelessness;
• The devastating impact on the deceased family;
• The reduced level of moral blameworthiness of Mr. Stupar having regard to the fact that his driving was not dangerous but careless;
• The psychiatric opinion that Mr. Stupar is "not functioning well" and that he continues to "re-live the incident" and has "flashback";
• Mr. Stupar's diagnosis of Post-Traumatic Stress Disorder and Severe Depressive Episodes;
• Mr. Stupar's extreme remorse;
• The likelihood that Mr. Stupar will be haunted by the consequences of his carelessness for years, if not his lifetime;
• The fact that Mr. Stupar likely requires ongoing counselling and medication;
• Mr. Stupar plea of guilt;
• The absence of intentional or wilfully conduct;
• The absence of alcohol or drugs;
• The absence of a criminal record;
• A Highway Traffic Act conviction for speeding;
• The circumstances of the driving having regard to the fact that this is not the worst case of careless driving, nor the worst offender;
• The fact that he appeared to slow down before failing to stop at the stop bar;
• The fact that he failed to stop at the stop bar and mere seconds elapsed before he struck the deceased;
• The fact that even after striking the deceased Mr. Stupar failed to realize that he had struck someone as his vehicle rolled over the body;
• The fact that he stopped when directed to so, albeit several feet and seconds later, and cooperated with the police; and
• The sentencing framework that has been applied in Ontario and elsewhere for careless driving where death has ensued.

[65] I approached my determination of sentence with a heavy heart. A young life has been tragically lost. It is human to feel sorrow about such a senseless event but the harm caused is but one factor in the overall assessment of an appropriate sentence. No single sentencing objective trumps the others. See: R. v. Nasogaluak, 2010 SCC 6 at para. 43.

[66] While the consequences of Mr. Stupar's conduct are among the gravest imaginable his moral blameworthiness points in a different sentencing direction than the gravity of his offence otherwise suggests. This was an avoidable accident, but an accident nonetheless caused by Mr. Stupar's undue care and inattention. His inattention did not amount to a marked departure from prudent driving.

[67] After anxious consideration I have concluded that a non-custodial sentence meets the requirements of proportionality in this case.

[68] I am imposing a fine of $2000 and a 2-year driving prohibition.

[69] In addition, I am imposing a 2-year period of probation with the condition that you perform 200 hours of community service with 22 months of the date of this order. While I was tempted to direct that you perform the community service in a particular fashion, I think it best to leave it with you and your probation officer. I do want to remind you that Mrs. Walsh wrote in her victim impact statement that "...you can right the wrong of a life taken way too soon, by living your own life in a way that gives back to the community and to this country and to the people you love. Live the full healthy life of two people, yours and Georgia's."

Released: June 18, 2015

Signed: Justice Clements