Court File and Parties

Court File No.: Halton, Central West Region, 13-7106

Ontario Court of Justice

In the Matter of: An appeal under 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty The Queen Respondent

— And —

Jennifer Unsworth Appellant

Before: Justice Alan D. Cooper

Heard on: September 30, 2014

Reasons for Judgment released on: January 9, 2015

Counsel:

• Michael W. Lacy for the Appellant Jennifer Unsworth
• Abby L. J. Woolf for the Respondent Her Majesty The Queen

On appeal from: The sentence imposed by Justice of the Peace Marsha Farnand on March 10, 2014 for careless driving

A.D. COOPER J.:

Introduction

[1] On February 7, 2014, Jennifer Unsworth appeared in the Ontario Court of Justice Provincial Offences Court before Her Worship Justice of the Peace, Marsha Farnand. Ms. Unsworth pled guilty to the following charges:

(i) On December 17, 2012, at Guelph Street and Sinclair Avenue in the Town of Halton Hills, did commit the offence of careless driving, contrary to section 130 of the Highway Traffic Act.

(ii) On the same date and place did commit the offence of driving a motor vehicle while using a hand-held communication device, contrary to section 78.1(1) of the Highway Traffic Act.

[2] On March 10, 2014, the appellant, on the careless driving charge, received a twenty day jail sentence to be served on an intermittent basis, plus a twenty four month driving suspension. A fine of three hundred dollars was the sentence initially imposed on the second charge, but was then conditionally stayed in accordance with the principle in R. v. Kineapple, [1975] 1 S.C.R. 729, that a person ought not to be punished twice for what is really the same offence.

[3] Ms. Unsworth appealed the sentence on the careless driving charge and requests that a non-custodial sentence be imposed, and that the twenty four month driving suspension be reduced.

Case Background

[4] On December 17, 2012, at approximately 12:10pm, the Appellant Jennifer Unsworth was driving a Ford Focus car northbound on Sinclair Avenue in Halton Hills (Georgetown). When she reached the Guelph Street intersection, she stopped for a red light. She was the first vehicle waiting to turn left onto Guelph Street from a dedicated left turn lane.

[5] When the light turned green, Ms. Unsworth began to turn left and struck 89 year old Patricia McCarthy who was walking in a southerly direction across Guelph Street on the west side of Sinclair Avenue. Ms. McCarthy was wearing a bright blue coat and the weather and road conditions were good. Neither alcohol or drug consumption was a factor, nor was speed.

[6] The impact caused serious injuries to Ms. McCarthy, and she died on December 20, 2012.

[7] The police found a cellular telephone on the floor of the Appellant's vehicle, and executed a search warrant to obtain the phone records. The following relevant information was revealed:

1. 12:07.53 – An outgoing text was sent from the phone
2. 12:10.35 – An outgoing telephone call was made from the phone, and it lasted 158 seconds
3. 12:10.50 – An incoming text was received on the phone

[8] Motorists on Sinclair Avenue and Guelph Street were interviewed but no one saw Ms. Unsworth using her cell phone before or at the time of the accident.

The Plea

[9] The careless driving charge was not specific as to the type of carelessness involved, and a separate charge of driving a motor vehicle while using a hand-held communication device was laid.

[10] Defence counsel Mr. Lacy was very precise in setting out the facts upon which his client was pleading guilty. In the transcript of February 7, 2014, on page 16, at line 12, continuing through to page 17, line 4, he stated the following:

"But the basis upon which my client is pleading guilty to the hand-held device charge is consistent with the Court of Appeal decision in Pizzurro which Your Worship may be familiar with. It's at tab two of my Book of Authorities. It's just from late last year, September of 2013. As Your Worship is probably aware, the Court of Appeal clarified that in order to be found guilty of a s. 78.1 offence under the Highway Traffic Act, all that the Crown is required to prove is that you held the device. They don't have to prove that you were using the device, but held the device during the time that you were driving, and my client admits that. She is not admitting that she was using the phone at the time of the accident in the sense of texting or otherwise using the phone in a way that was contrary to the legislation, because as you know, the legislation exempts calls through Bluetooth technology, right? You can use your phone in your car; you just can't hold your phone and use it and otherwise operate it. I'm not taking away from her plea to careless at all. She accepts that she's responsible and that she did fail to exercise due care and attention, on that basis she has entered her plea of guilt. And as I understand it, for the purposes of the plea, that's what the Crown is in a position to prove."

[11] After the above submission, the facts admitted to were accepted by the Crown and the Court.

Sentencing Submissions

[12] The Crown and defence agreed to a $300.00 fine on the hand-held device charge.

On the careless driving charge, Mr. Lacy submitted that a large fine and a two year driving suspension was an appropriate sentence.

[13] The Crown, Ms. Jago, asked for a jail sentence of 30 to 60 days, plus a one year driving suspension. In the transcript of February 7, 2014, on page 74, at lines 2 to 9, she said as follows:

"In this instance, Ms. Unsworth had a clear and unobstructed view of what was taking place in the intersection. And what led to her not being able to keep a proper lookout was a function of her own use of the phone in the – while she's in the vehicle, nothing to do with anything taking place on the roadway."

The Sentencing Proceeding

[14] In the March 10, 2014, transcript, on page 9, at lines 25 to 28, Justice of the Peace Farnand made this statement:

"Clearly, in this Court's opinion, there can be no doubt that the use of a cell phone played some part in the distracted driving of the defendant. This is an aggravating factor."

[15] On page 17 of the same transcript, beginning at line 23, and concluding on page 18 at line 23, Justice Farnand said this:

"The Court also cannot ignore the growing trend that distracted driving is the cause of more fatalities on Ontario roads. An article in the Globe and Mail, published recently on March 3, 2014, details the increased reliance of cell phones in motor vehicles as well as other causes of distraction while driving. It reads:

"Distracted driving is becoming the No. 1 killer on the roads, Ontario Provincial Police say. Kicking off a new campaign this month, the OPP say distracted driving accounted for more deaths last year than impaired or speed-related incidents in crashes they investigated. Their statistics say 78 people died in distracted driving-related collisions in 2013, compared with 57 impaired driving deaths and 44 speed-related deaths."

Grounds of Appeal

Against Sentence:

[16] The trial judge erred in:

(1) Imposing a sentence which was harsh and excessive;

(2) Sentencing the Appellant on the basis of facts which were not admitted and were not proven beyond a reasonable doubt, namely that the use of the hand-held device was a contributing cause of the careless driving;

(3) Imposing a custodial sentence when lesser alternative means of punishment were available to meet the principles and purpose of sentencing;

(4) Imposing a longer period of suspension than the one year period the Crown asked for;

(5) Erroneously relying on a media article and statements made by the OPP in the media, which was published after sentencing submissions were made, and for which the parties were not invited to comment on.

The Standard of Review

Provincial Offences Act

Against Sentence:

[17] 122. (1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,

(a) dismiss the appeal; or

(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,

and, in making any order under clause (b), the court may take into account any time spent in custody by the defendant as a result of the offence.

Variance of sentence

(2) A judgment of a court that varies a sentence has the same force and effect as if it were a sentence passed by the trial court. R.S.O. 1990, c. P.33, s. 122.

One sentence on more than one count

123. Where one sentence is passed upon a finding of guilt on two or more counts, the sentence is good if any of the counts would have justified the sentence. R.S.O. 1990, c. P.33, s. 123; 1993, c. 27, Sched.

Application to Admit Fresh Evidence

[18] Accompanying the Notice of Appeal, was an application to admit fresh evidence, and some of the grounds set out were as follows:

2. At the time of her sentencing hearing, she led evidence from a forensic psychologist that she suffered from post-traumatic stress disorder and depression arising from the circumstances of the careless driving which led to the death of a pedestrian.

3. The Crown challenged the validity of the diagnosis through submissions on sentencing, although there was no cross-examination on the author of the report.

4. The Crown also challenged the validity of the diagnosis given the purported lack of effort on the part of the Applicant to address any underlying health issue.

5. Since the sentencing, the Applicant has undergone further psychological assessment.

6. The assessment confirmed the original psychological diagnosis.

7. The assessment also confirms that a therapeutic plan has been put in place for the Applicant to deal with the issues.

8. The assessment is contained in a report dated August 20, 2014 authored by Kathi Janusiak.

[19] The defence application was granted and this report was admitted into evidence on this appeal.

Analysis

[20] The police and Crown could have framed the careless driving charge as one in which the carelessness was specified to have been the use of the hand-held device while driving, with the separate hand-held device charge as a backup. Perhaps, the careless charge was not drafted in this manner because no one saw Ms. Unsworth using her phone.

[21] The Crown sentencing submissions on the careless driving charge were as if the use of the hand-held device was the basis for this charge, when defence counsel made it clear that this was not being admitted to.

[22] Had it wanted to, the prosecution could have attempted to prove on the sentencing hearing, that the careless driving was caused by the Appellant's use of the handheld device. The Criminal Code provides for this:

724. Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[23] See also R. v. Gardiner, [1982] 2 S.C.R. 368.

[24] The learned Justice of the Peace, having accepted the plea of guilty to careless driving on the specific facts admitted to by defence counsel, sentenced Ms. Unsworth as if she had admitted to or been proven to have been using her cell phone at the time she struck Ms. McCarthy. In my view, and with respect, I find this to have been an error in principle.

[25] Concerning the reference by Justice Farnand to the Globe and Mail article, it would have been preferable if she had distributed copies to counsel before giving her judgment, and inviting submissions and an opportunity to reply.

The Appropriate Sentence for Careless Driving

[26] The penalty for careless driving is as follows:

Careless driving

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.

[27] One can see that there is a wide range of possible sentences, depending in part on the facts admitted to or proven in court. In the present case, the carelessness admitted to was distracted driving not involving the use of a hand-held device. Had it been admitted to, the sentence would be justifiably harsher.

[28] The Appellant is a single parent who is the primary caregiver for her two young boys, the elder of whom has Asperger's Syndrome, a form of autism. She has no criminal record but her Provincial driving record was entered as an exhibit. From 1994 to 2007, there were 5 speeding convictions, and in 2010 she was convicted of driving while using a hand-held device. She is well educated and is a part owner of a gymnastics club in Georgetown where she coaches children, including those with disabilities.

[29] I accept that she suffered post-traumatic stress after this incident, and that she has a plan in place to get continued counselling.

[30] A jail sentence is not an appropriate sentence on the careless driving charge in all the circumstances referred to above.

Conclusion

[31] The sentence appeal is allowed. The 20 day intermittent period of incarceration and two year licence suspension is substituted for a fine of $2,000.00, and an 18 month driving suspension.

[32] The conditional stay of proceedings imposed on the hand-held device charge is set aside, and a $300.00 fine is substituted.

January 9, 2015

Signed: "Justice Alan D. Cooper"