Court File and Parties

Court File No.: Guelph Information #140108 Date: September 11, 2015 Ontario Court of Justice

Between: R

— AND —

Anna Wilson

Before: Justice of the Peace M A Cuthbertson

Heard on: 15 May 2015

Decision on Sentence released on: 11 September 2015

Charge: s. 130 & 199(1) Highway Traffic Act

Counsel:

• M. De Vos, for the prosecution
• M. Stanley, for the defendant

JUSTICE OF THE PEACE CUTHBERTSON:

1: THE BACKGROUND FROM THE AGREED STATEMENT OF FACTS

[1] The weather of the late evening of 6 November 2013 was dismal. A cold heavy rain slashed across the dark, overcast and moonless sky which made for poor visibility. The dreariness of the weather set a sombre stage for the tragedy which was to unfold.

[2] Mr Gordon Krofchick, after spending much of the day with a friend in Guelph, set out sometime prior to 10 PM, on his blue bicycle to ride back to his home in Ariss. There is no dispute that he had the right to do so.

[3] He was wearing dark clothing, had a dark pack on his back and had no lights or reflective markings on his bicycle. As part of his path home, he travelled north on Highway 6 and then west on Wellington County Road # 7, which is a two lane highway without a bicycle path or artificial light. As he approached County Road 51, the highway was flat and straight. Sadly, Mr Krofchick did not make it past this stretch of road.

[4] Multiple drivers passed Mr Krofchick as he cycled towards Ariss. Several motorists, some who called immediately, advised the police that he was difficult to see in the poor weather conditions. Some told the police that they had narrowly missed him when they passed his bicycle. The callers considered the situation to be dangerous for Mr Krofchick.

[5] At about 10:45 PM, the passenger side front bumper of the car Ms Anna Wilson was driving struck the rear wheel of Mr Krofchick's bicycle. The impact propelled the bicycle into the ditch. Mr Krofchick impacted the lower passenger side corner of her windshield thereby shattering it. He then struck the passenger side rear view mirror which was torn off the car by the impact. Damage to the vehicle was greater than $1,000.

[6] Mr Krofchick came to rest in the east side ditch of the roadway. He sustained severe pelvic injuries and blood loss from the collision. He succumbed to those injuries sometime later (NB: The Agreed Statement of Facts did not specify an approximate time of death). He was found the next morning at about 7:20 AM by a cement truck driver. Tragically, by then he was deceased.

[7] Ms Wilson thought she had struck an animal. She knew the windshield was damaged but did not believe there was other damage. She did not stop her vehicle. She drove on to the Elora casino, parked there and spent about 45 minutes in the casino. She then left and drove back past the collision scene and arrived at her home in Guelph at around midnight. She told no one of the accident.

[8] She was concerned about the damage as the vehicle belonged to her son. As the car had been sold, her son was taking it to the auto dealership the day after the collision.

[9] Early the next morning she took the damaged vehicle to an auto repair shop. She told the people at the repair shop that she had hit an animal.

[10] Upon police investigation, Ms Wilson was charged with careless driving (s. 130) and failing to report an accident where the damage was apparently greater than $1,000 (s. 199(1)) contrary to the Highway Traffic Act. She told police that she did not tell anyone of the accident at the time because she was concerned about her son knowing that she had damaged his car prior to its sale.

[11] Ms Wilson entered pleas of guilty before me on 15 May 2015 and was convicted on both counts.

[12] Members of the Krofchick family provided written and/or oral Victim Impact statements. The grief and sense of loss of the family, even so many months after the event, was heart wrenching. Their pain was palpable. No one but the Krofchick family can know the depth of their grief or the magnitude of their loss. The Krofchicks have all lost a piece of their hearts.

[13] No sentence will provide solace to the family for the loss of Gordon. The sentence should in no way be seen as a measure of the man that was Gordon Krofchick. No sentence would pay appropriate tribute to his life. He was a much loved and giving member of the Krofchick family and a contributing member of our community.

[14] Following submissions by both counsel, I reserved my decision on sentencing to carefully consider all that I had heard and read. What follows is that decision. For the ease of the reader, all of the statute law that I reference can be found in the Appendix below.

2: SENTENCING ISSUES

[15] I remind myself that the sentence must be case specific and a balance of competing principles which include:

(a) general deterrence so other drivers are aware of the consequences of the offending conduct and will thereby be deterred from similar conduct,

(b) specific deterrence so Ms Wilson will not commit similar conduct in the future,

(c) denouncing the inappropriate conduct of Ms Wilson on behalf of the community, and

(d) the rehabilitation of Ms Wilson.

[16] Counsel submitted and I agree that the rehabilitation of Ms Wilson is not a compelling issue for me to consider. She displays no specific problems or issues which contributed to the offence. Thus, the rehabilitation of Ms Wilson is not required as part of this sentence. Therefore, I will focus my attention on the other three factors in considering an appropriate sentence.

[17] Counsel also provided several cases on careless driving convictions for my consideration. They included from the prosecution: R v Martinez, [1996] O.J. No. 544, R v Laycock, [1996] O.J. No. 3846, R v. Pellerin, [2006] O.J. 5184, R v Matta, [2009] Y.J. No. 204, and R v Randhawa, [2011] B.C.J. No. 2501. The defence tendered: R v. Pease [1999] O.J. No. 5108, R v Grise, [1999] O.J. No. 5352, R v Carruthers, [2002] Y.J. No. 164 and R v Gibbs, [2005] A.J. No. 1948. I have reviewed and considered all of those decisions.

[18] None of the cases deal with the exact weather and time of day circumstances which bear on Ms Wilson's sentencing, so all are distinguishable. However, Martinez, a decision of the Ontario Court of Appeal, is instructive as it specifically permits the consideration of a custodial sentence for the worst cases of careless driving where a death has occurred.

[19] What is clear from the cases is that the full range of sentencing options as set out in s. 130 HTA is available for me to consider.

[20] No case law was submitted on the Fail to Report conviction.

[21] The facts of this case require a separate consideration of the mitigating and aggravating factors for each of the two convictions, in order to determine fair and just sentences. However there are some factors which both convictions jointly share.

2.1 Mitigating Factors Which Apply to Both Convictions

[22] Ms Wilson entered pleas of guilty thereby eliminating the need for the Krofchick family to be put through an arduous trial. As well, through her counsel, she expressed her remorse to the Krofchick family.

[23] The driving record of Ms Wilson is minor. She was convicted in 1997 for a seatbelt offence and in 2011 for speeding 65 kph in a 50 kph zone.

[24] She has no criminal record.

2.2 Aggravating Factors Which Apply to Both Convictions

[25] Ms Wilson failed to observe that she had struck a person.

[26] Tragically, a death occurred.

2.3 CARELESS DRIVING CONVICTION

2.3.1 Specific Mitigating Factors

[27] The bicycle which Mr Krofchick was riding had no lights, reflectors or reflective materials as required (see s. 62(17) HTA).

[28] Prior to the time frame when Ms Wilson came upon Mr Krofchick, there was no indication of any carelessness in her driving.

2.3.2 Specific Aggravating Factors

[29] Other drivers, albeit often at the last moment, saw Mr Krofchick and avoided him on the road. In contrast, Ms Wilson was inattentive when the weather and night driving conditions required her full and diligent attention. She failed to expect the unexpected.

2.3.3 Sentence Analysis

[30] It cannot be said that the driving of Ms Wilson fell into the category of the worst types of careless driving cases. Her fault that night was one of momentary inattention. Despite the death of Mr Gordon Krofchick, I find that a custodial sentence in this matter would not be appropriate (see Martinez).

[31] In my opinion, the principles of general and specific deterrence demand that the driving public and Ms Wilson all understand by way of the sentence that driving is a privilege and significant consequences follow when a person's driving falls below acceptable standards. The sentence must also express the community's disapproval of the lapse in Ms Wilson's driving standards.

[32] The appropriate sentence which balances the competing principles is best expressed through a combination of the available non-custodial penalties under s. 130 HTA. I note the option of community service, pursuant to s. 72(3) POA, was specifically agreed to by Ms Wilson's counsel on 15 May 2015.

The sentence on the Careless Driving conviction will be:

(a) A fine of $1,500,

(b) An absolute driving suspension for 1 month,

(c) Thereafter, a further limited driving suspension for an additional 2 months when she may only drive directly to or from:

• work, or
• religious services, or
• medical emergencies for her or her immediate family, or
• previously scheduled personal medical or dental appointments.

(d) Probation for 15 months. As part of her probation, she will complete 120 hours of community service at a rate of not less than 10 hours per month. The community service will commence after the 3 months of licence suspensions.

2.4 FAIL TO REPORT CONVICTION

2.4.1 Specific Mitigating Factors

[33] There are none.

2.4.2 Specific Aggravating Factors

[34] Ms Wilson acted in an egregious manner. I cannot condemn her post collision actions strongly enough. In the following paragraphs, I will articulate my reasons for these statements.

[35] To begin, I categorically reject her statement that she thought she had hit an animal, which seemingly justified in her mind that she did not need to call the police. That is not the law. (see s. 199(1) HTA). The fact that she was in a collision triggered an obligation in law for her to immediately assess two possibilities.

[36] First, she was obliged to determine whether there were personal injuries as a result of the collision. She could not reasonably assess this unless she had stopped her vehicle and verified what or whom she had struck. Both Mr Krofchick and his bicycle may have been visible to her had she stopped, backed up and shone either her headlights or any light source that she may have had with her on the area beside the highway in the general area of the collision. Instead she failed to stop.

[37] Second, she also had an obligation to assess whether there was apparently more than $1,000 worth of damage to the vehicle (see s. 11, R.R.O. 1990, Reg. 596). She stated that she knew the windshield was damaged but did not think there was other damage. This seemingly suggested that in her mind the extent of the damage may have been less than $1,000. I reject this statement as it begs disbelief. Ms Wilson, as all drivers are trained to do, would have instinctively looked in her passenger side mirror to observe the post collision scenario and multiple times thereafter. She would have instantly known that the mirror was gone when she looked. She could have stopped to more fully assess the damage but she chose not to do so. Nonetheless, it would have or should have been obvious to her that the combined windshield damage and the loss of the mirror would have been worth more than $1,000.

[38] Had Ms Wilson properly performed either of the above assessments and then immediately phoned the police, her legal obligations under s. 199(1) HTA would have been met. Instead, she drove on and told no one of the collision.

[39] Ms Wilson had an additional three opportunities to realize the damage was apparently greater than $1,000. The first was when she parked at the casino a few minutes after the collision. I find it to be unlikely in the extreme that she did not inspect the damage. By her own admission she was concerned about the damage to her son's car and his reaction. Common sense suggests she would have looked. As well, she had an opportunity to inspect the damage both when she returned to the car from the casino and again when she parked her vehicle at her home around midnight.

[40] The importance of the four different opportunities for Ms Wilson to have properly assessed the damage between the collision at 10:45 PM and her return to her home at 12 midnight cannot be overstated. During this time or at least part of it, Mr Krofchick was alive and lying severely injured and in dire need of emergency medical care in the dark ditch with the cold rain falling on him.

[41] It is also not lost on me that the police had already received multiple calls from concerned drivers about a cyclist travelling in that same area almost being struck while riding without any illumination or reflective surfaces on his bicycle. It is entirely possible that if Ms Wilson had simply followed the law and immediately called the police that they would have been able to connect the reports of the near misses of a cyclist by other motorists with her phone call.

[42] What is painfully clear to me is that Ms Wilson's failure to promptly call the police removed any possibility of emergency medical personnel and the police themselves rushing to render assistance to Mr Krofchick before his sad and untimely demise.

[43] Ms Wilson's focus on her son's reaction to the damage to his car was ill placed. Her higher obligation was to do that which the law required her to do. The result of her misplaced focus led to tragic results. Her decisions were thoughtless, selfish, cold and callous.

2.4.3 Sentence Analysis

[44] In my view, her conduct after the collision requires the highest level of public denunciation and specific deterrence. As well, other drivers must be aware of their obligations to follow s. 199(1) HTA when they are involved in a collision, as lives may depend on it.

[45] I say again - her conduct was egregious. It was also deliberate. The only sentence which would adequately address such conduct is the maximum permitted by law.

[46] The available sentencing options for a conviction under s. 199(1) HTA are limited. The Highway Traffic Act does not provide penalties specific to s. 199. As a result, I must apply the general penalty provisions as set out in s. 214(1) HTA which has a maximum fine of $500. As well, I may also sentence her to a maximum of 2 years of probation (see 72(1)(b) & 72(2) POA) but can only order the statutory terms as there is no possibility of a custodial sentence for this offence (see s. 72(3)(c)).

[47] Therefore, the sentence for Ms Wilson on the Fail to Report conviction will be:

(a) A fine of $500, and

(b) Probation for 2 years from today's date.

[48] For clarity, the two probation orders will run concurrently and be merged into one document.

[49] As required to implement the careless driving sentence - Ms Wilson is ordered to surrender her driver's licence to the clerk of the court, immediately.

[50] Finally, I wish to thank both counsel for their tireless work on this matter. Their professional approach to the difficult issues in this case led to a resolution. They prepared an in depth Agreed Statement of Facts which set out the difficult circumstances. They researched and submitted substantial case law. Their thoughtful submissions were also of significant assistance to me as I prepared this sentencing decision. I am grateful.

Released: September 11, 2015

Signed: "Justice of the Peace M.A. Cuthbertson"

APPENDIX: THE LAW

Highway Traffic Act (HTA)

Lights and reflectors on bicycles, etc.

Section 62(17): When on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, every motor-assisted bicycle and bicycle (other than a unicycle) shall carry a lighted lamp displaying a white or amber light on its front and a lighted lamp displaying a red light or a reflector approved by the Ministry on its rear, and in addition white reflective material shall be placed on its front forks, and red reflective material covering a surface of not less than 250 millimetres in length and 25 millimetres in width shall be place on its rear. 2009, c. 5, s. 28 (1).

Careless driving

Section 130: 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 and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 41.

Duty to report accident

Section 199(1): Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199 (1); 2002, c. 17, Sched. F, Table.

General penalty

Section 214(1): Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500. R.S.O. 1990, c. H.8, s. 214 (1).

R.R.O. 1990, Reg. 596: GENERAL

Damage to Property Accident Report

Section 11: For the purpose of subsection 199 (1) of the Act, the prescribed amount for damage to property is $1,000. O. Reg. 537/97, s. 1.

Provincial Offences Act (POA)

Probation order

Section 72(1): Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission,

(a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order;

(b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or

(c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order.

Statutory conditions of order

Section 72(2): A probation order shall be deemed to contain the conditions that,

(a) the defendant not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment;

(b) the defendant appear before the court as and when required; and

(c) the defendant notify the court of any change in the defendant's address.

Conditions imposed by court

Section 72(3): In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order,

(a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act;

(b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order;

(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or

(d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report.

Form of order

Section 72(4): A probation order shall be in the prescribed form and the court shall specify therein the period for which it is to remain in force, which shall not be for more than two years from the date when the order takes effect.

Notice of order

Section 72(5): Where the court makes a probation order, it shall cause a copy of the order and a copy of section 75 to be given to the defendant.

Regulations for community service orders

Section 72(6): The Lieutenant Governor in Council may make regulations governing restitution, compensation and community service orders, including their terms and conditions. R.S.O. 1990, c. P.33, s. 72.

Exception

Section 72(7): The court shall not make a probation order when an individual has been convicted of an absolute liability offence, unless the order is made in addition to a sentence of imprisonment imposed under section 69 in default of payment of a fine. 1994, c. 27, s. 52 (7).