Court File and Parties

Court File No.: Hamilton #15-521 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan James Quatsch

Before: Justice P. H. M. Agro

Heard: March 18, 2016 and April 1, 2016

Reasons for Judgment Released: Friday, April 1, 2016

Counsel:

• Mr. Todd Norman and Mr. Donald Fraser for the Crown
• Mr. William Trudell for the accused Ryan Quatsch

Reasons for Sentencing

Introduction

[1] Ryan Quatsch entered pleas of guilty to criminal negligence causing the death of Gregory Morley, and possession of marijuana, contrary to s. 220(b) of the Criminal Code of Canada (hereinafter referred to as the Code) and s. 4(1) of the Controlled Drugs and Substances Act (hereinafter referred to as the CDSA).

Circumstances of the Offence

[2] The agreed facts are these:

On Tuesday, October 21, 2014, at approximately 5:15 am, Quatsch, while driving his Toyota pick-up truck, crashed head-on into the Buick sedan driven by Mr. Morley in the Niagara-bound lanes of the Queen Elizabeth Highway (hereinafter referred to as "the QEW").

[3] Mr. Morley was returning home from a night shift at his place of employment in Hamilton. The force of the collision killed him.

[4] Starting at approximately 5:12 am, police started receiving calls from concerned citizens about the offender's driving. Quatsch was observed going through a red light at Christie Street and the South Service Road before entering the wrong way onto the highway and continuing to travel the wrong way in the left lane of Niagara-bound traffic.

[5] Other motorists tried, unsuccessfully, to get his attention.

[6] The event data recorder for the Toyota showed no braking when it struck Morley's car at a speed of 108 kph. The event data recorder for the Buick similarly showed no braking before the collision and a speed of 132 kph.

[7] A witness at the collision scene saw Quatsch sitting in the driver's side of his truck wearing socks without shoes. When he exited his vehicle from the passenger side, Quatsch stood amidst glass and oil in his stocking feet.

[8] When the first police officer arrived on scene, he observed that Quatsch had difficulty focusing on him and had blood on his face. Quatsch was unable to give the officer an account of what happened beyond saying he was going home from a friend's house. He did admit to having earlier consumed 3 or 4 beers.

[9] Quatsch was transported to hospital and after his arrest, rights to counsel and caution, he was read a demand for a blood sample. After consulting with counsel, blood was drawn.

[10] That sample was sent to the Centre for Forensic Sciences along with medical records, obtained by warrant. Rachelle Wallage, toxicologist, analyzed the blood sample and interpreted the medical records. She found that Quatsch had a blood alcohol level of between 65 and 92 milligrams in 100 millilitres of blood. Also present in his system at the time of the collision were cocaine and tetrahydrocannabinol (THC), the primary psychoactive compound in marijuana.

[11] Wallage opined that an individual would be impaired in their ability to operate a motor vehicle with the blood alcohol level at the stated projected range.

[12] There is no evidence of a quantitative analysis of the cocaine or THC; however, Wallage reported that cocaine can cause visual impairment due to enlargement of the pupil resulting in blurred vision and an inability for the eyes to adapt to changing light conditions. Other possible effects include visual, tactile and auditory hallucinations and lapses in attention resulting in delayed reaction to traffic controls.

[13] According to Wallage, the effects of THC from cannabis products typically result in mild euphoria, relaxation, altered time perception and decreased ability to concentrate, all of which can impair some faculties necessary for driving.

[14] In conclusion, Wallage reported that concomitant use of alcohol and THC is expected to produce a more pronounced effect on impairment of skills required for the operation of a motor vehicle.

[15] Items found in the Quatsch vehicle that are relevant to these charges were 226 grams of marijuana and a partially filled bottle of Jack Daniels Whiskey. The Whiskey was located behind the passenger seat of the truck, out of the offender's reach. The investigating officer noted the very strong odour of marijuana in the vehicle.

[16] Counsel for the Public Prosecution Service of Canada acknowledged that Quatsch at one time had a production licence for cannabis marijuana and had a personal possession licence for that substance.

[17] The quantity of marijuana that was found in his vehicle, though, exceeded permitted limits.

[18] Quatsch was examined by two noted psychiatrists with expertise in the area of sleep disorders, Drs. Colin Shapiro and Julian Gojer. Their reports were filed.

[19] Both determined that Quatsch suffers from parasomnia, more commonly known as sleepwalking and in this case sleep driving. Dr. Shapiro concluded on a balance of probabilities that parasomnia was the most likely factor in the accident. Dr. Shapiro did not believe that alcohol consumption was a major factor.

[20] Dr. Gojer supported the diagnosis of parasomnia and added that the history of use of cannabis, cocaine and alcohol could not be excluded as having an impact on Quatsch's driving, especially in combination with the sleep disorder.

[21] I find on the evidence of the two doctors, which is not disputed by the Crown, that parasomnia was a major contributing factor to this tragedy.

[22] Counsel unequivocally stipulated that Quatsch, knowing that he had a pre-existing sleep disorder that was exacerbated by the use of intoxicants, met the standard of driving in circumstances that show a wanton or reckless disregard for the lives or safety of other drivers.

Circumstances of the Offender

[23] Quatsch is 30 years of age. He was born in Edmonton where his parents and younger sister continue to reside. At age 22 he moved to Toronto. His younger brother resides in that city. Quatsch now resides in Beamsville, Ontario.

[24] Multiple letters of support were filed on his behalf. Those from his family describe a stable and loving home environment in which the offender was the eldest of three children. He successfully completed high school, participating in athletics, Boy Scouts and the school band. He pursued higher education in an electrical pre-apprenticeship programme and is now employed in the construction industry.

[25] He is considered a conscientious and diligent worker, eager to offer his services to family and friends as needed.

[26] As a child, his sleepwalking began at age 3. That same disorder has affected his father and younger brother.

[27] At age 11, when his father took seriously ill and was hospitalized for a lengthy period, Quatsch took over the role as male support and protector to his younger siblings, helping them with homework and accompanying them to their sports activities.

[28] Neither of his parents were aware of his lifestyle and were deeply shocked and saddened that their son's behaviour took another's life; however, they and their other children remain steadfastly supportive of their son and brother. Despite the miles between them, a tight family bond exists to this date.

[29] Quatsch's criminal record post-dates these offences. He has a July 2015 conviction for possession of a schedule II substance for the purpose of trafficking. It was that conviction that led to the revocation of his release on these charges.

[30] He has a driving record that includes two convictions for careless driving.

[31] At the time of these offences, Quatsch's licence to drive was suspended.

[32] At the sentencing hearing, Quatsch addressed the Court and the Morley family expressing contrition for his behaviour and willingness to be held accountable. He has done so as well in conversations with his own family members.

[33] I accept the sincerity of that remorse.

Victim Impact

[34] Greg Morley was a 31-year-old single man. He was the son of Michael and Sharon Morley, nephew to Debbie Young, Christopher Horeczy and Rick Horeczy, cousin to Jennifer Young and Andrea Horeczy, all of whom filed victim impact statements.

[35] The loss of Greg Morley is palpably expressed in those six victim impact statements. His parents in particular still attend support groups and counselling to deal with their emotional burden.

[36] Reference is also made to Mr. Morley's community of friends for whom he initiated a new hockey league, playing with some talent himself.

[37] From my review of those statements, which provide but a snapshot of the life of Greg Morley, it is clear that theirs is a close-knit family that regularly enjoys intergenerational family celebrations. Greg Morley the son, the grandson, the brother, the nephew, the cousin and the uncle, was an integral part of those celebrations and particularly loved and was loved by the younger members of that extended family.

[38] Greg Morley's life was full, yet tragically unfulfilled.

[39] Sadly, passage along the Queen Elizabeth Highway at Christie Road, a route regularly taken by Mr. Morley's family, even as they come to court, serves as a constant and painful reminder of their loss.

Principles and Purposes of Sentencing

[40] The Criminal Code sets no fixed upper term limit for criminal negligence causing death. The facts of the case must govern: R. v. Purtill, 2013 ONCA, per Weiler, J.A. at para. 4.

[41] Of the governing principles and purposes of sentencing set out in sections 718 and 718.2 of the Code, denunciation and deterrence loom large in cases, such as this, that might be committed by otherwise law-abiding people: R. v. Lacasse, 2015 SCC 64, Wagner, J. at para. 73, citing R. v. Proulx, 2000 SCC 5.

[42] Certainly rehabilitation is a factor, but not paramount.

[43] Promoting a sense of responsibility in an offender and an acknowledgement of harm done is achieved in part by a lengthy custodial sentence but depends in large measure on each offender's willingness to accept same.

[44] The other restorative goals of sentencing are more difficult to address in cases such as this.

[45] Reparation for harm done to victims is not achievable when death results from criminal conduct.

[46] There is no sentence that will compensate the Morley family and the community of friends, co-workers and acquaintances who knew and loved Greg Morley.

[47] The value of his life cannot be quantified by any custodial sentence; nor can retribution for the loss of that life factor into this court's considerations.

Aggravating and Mitigating Circumstances

[48] The aggravating circumstances in this case are these:

1. Quatsch was aware that he had a sleep disorder but had little insight into the effects of that disorder beyond incidents that bore limited ramifications.

2. He had a blood alcohol level between 65 and 92 milligrams in 100 millilitres of blood at the time of the accident.

3. He was aware that the use of alcohol would sometimes trigger a parasomniac event.

4. He had both THC and cocaine in his blood at the time of the accident.

5. He was driving the wrong way on a major highway oblivious to other motorists trying to attract his attention.

6. His driving record includes two convictions for careless driving.

[49] There are mitigating circumstances:

1. Quatsch entered a plea of guilty before preliminary hearing; that plea is entered and accepted as a sign of remorse and his willingness to accept responsibility and be held accountable for this offence; by doing so he has spared the Morley family the need to publicly expose their pain throughout the process of a lengthy preliminary hearing and trial; the public too has been saved the costs of trial.

2. Quatsch again expressed his remorse at the sentencing hearing and repeated his willingness to accept responsibility.

3. His parasomnia, a disorder over which he has little or no control, was the most likely factor in this tragic event, thus lessening his moral culpability.

4. His prospects for rehabilitation are good: before this offence he had no criminal record and has maintained steady employment; he has a supportive family.

Positions of the Crown and Defence

[50] The Crown seeks a custodial sentence of 4 to 5 years for the criminal negligence causing death as well as ancillary orders for DNA and a driving prohibition for 10 years.

[51] The defence urges I impose a sentence of 3 to 4 years on that count with a 5-year driving prohibition.

[52] On the basis of R. v. Sommers, 2014 SCC 26, counsel jointly agreed that the pretrial custody to be credited is 476 days to the date of the sentencing hearing.

[53] There are an additional 14 days time served to this date. Those additional days in detention are not due to any act or omission by the offender; rather, the need for this court to consider all materials filed and prepare these reasons. There being no evidence that the offender has lost eligibility for parole or early release, these circumstances warrant an additional enhanced credit of 21 days for that time for a total of 497 days, or 1 year and 131 days.

[54] This approach is consistent with both Sommers and the decision of the Ontario Court of Appeal in R. v. Akintunde, 2015 ONCA 597, which confirmed the sentence imposed and allocation of pretrial custody by the trial judge.

[55] The federal Crown and defence counsel jointly proposed a sentence of 30 days on the marijuana possession charge concurrent to any other sentence imposed. I find no reason to interfere with the sentence proposed on that count.

Sentencing Authorities

[56] The Crown relies on a number of authorities for its suggested range of sentence:

• R. v. Lacasse, 2015 SCC 64: 6½ years for two counts of impaired driving causing death;

• R. v. Kummer, 2011 ONCA 39: 8 years for 3 counts of dangerous driving causing death, 1 count of impaired driving causing death, 2 counts of dangerous driving causing bodily harm and 1 count of impaired driving causing bodily harm;

• R. v. Purtill, 2013 ONCA 692: 6 years for 1 count of criminal negligence causing death, 1 count of impaired driving causing death, 1 count of impaired driving causing bodily harm and 1 year consecutive for refusing a breath demand;

• R. v. Carreira, [2014] O.J. No. 4779: 6 years for 1 count of criminal negligence causing death;

• R. v. Junkert, 2010 ONCA 549: 5 years for 1 count each of dangerous driving causing death and 1 count of impaired driving causing death;

• R. v. Karafa, [2014] O.J. No. 3013: 5 years for 1 count each of dangerous driving causing death, impaired driving causing death, criminal negligence causing death and driving with a blood alcohol level over the legal limit;

• R. v. Niganobe, 2010 ONCA 508: 5 years for 1 count of impaired driving causing death, and 1 count of impaired driving causing bodily harm;

• R. v. Outifirakh, [2014] O.J. No. 3788: 4 years, nine months for one count of impaired driving causing death;

• R. v. Morin-Leblanc, 2014 ONSC 2056: 3 years concurrent on 1 count each of impaired driving causing death and criminal negligence causing death and 1 year consecutive for 1 count of refuse breath demand;

• R. v. Ramage, 2010 ONCA 488: 4 years for 1 count each of impaired driving causing death, dangerous driving causing death, impaired driving causing bodily harm and dangerous driving causing bodily harm;

• R. v. Munro, [2015]: 3½ years for 1 count each of impaired driving causing death and impaired driving causing bodily harm;

• R. v. LaChappelle, 2007 ONCA 655: 21 months for 1 count each of impaired driving causing death, impaired driving causing bodily harm and driving with a blood alcohol level over the legal limit, and

• R. v. McBride, [2010] Y.J. No. 176: a maximum fine of $1,000 and 30 days conditional sentence for the provincial offence of careless driving which caused a death.

[57] I have reviewed each of these authorities. Broadly speaking, they are all distinguishable from the case at bar for these reasons:

1. the number of fatalities and incidents of bodily harm in each;

2. consequently, the number of charges faced by the offenders and convictions entered;

3. in each case, with the exception of McBride, the consumption of alcohol was a significant aggravating factor.

[58] I also reviewed the authorities relied on by the defence:

• R. v. Marona, [2010] A.J. No. 1048: 2 years for 1 count of dangerous driving causing death and 1 count of dangerous driving causing bodily harm;

• R. v. Fleming, [1995] O.J. No. 3055: 9 months for 1 count of dangerous driving causing death and 3 months concurrent for 1 count of dangerous driving causing bodily harm;

• R. v. Buchanan, [2002] O.J. No. 841: 21 months for 2 counts of dangerous driving causing bodily harm;

• R. v. Luk, [2001] O.J. No. 841: 21 months for 2 counts of dangerous driving causing bodily harm;

• R. v. Whone, [2007] O.J. No. 5416: 18 months for one count of dangerous driving causing death.

[59] These authorities are distinguishable as well. While sleep was a factor in each of those cases, the accidents were for the most part due to the offender's sleep deprivation and subsequent falling asleep at the wheels of their moving vehicles, not cases of parasomnia.

[60] Nonetheless, all of these authorities are instructive.

[61] Although death or bodily harm was the result of the offenders' behaviours, all cases offered by Crown and defence counsel, the facts and circumstances of this case fall somewhere between these divergent authorities.

[62] Quatsch consumed alcohol such that his blood alcohol level at the time of the accident was somewhere between 62 and 95 millilitres percent. The levels of THC and cocaine in his system were not quantified. He knew he had a sleep disorder that was triggered by the use of alcohol. His culpability as it pertains to the charge of criminal negligence and acknowledged in the agreed statement of facts, is that his driving, in the face of that knowledge, showed a wanton or reckless disregard for the lives or safety of other drivers.

Conclusion

[63] In consideration of the principles and purposes of sentencing, and the presenting aggravating and mitigating circumstances and the impact of this event on the Morley family and the larger community, I have concluded that a fit sentence is 3 years and 180 days. Applying pretrial credit of 1 year and 131 days, the remainder to be served is 2 years and 49 days.

[64] Also imposed is the jointly submitted sentence of 30 days on the CDSA charge, to be served concurrently.

[65] Ancillary orders will include an order that Mr. Quatsch provide a sample of DNA and that he be prohibited from driving for a period of five years commencing on the completion of his custodial sentence.

[66] On hearing the submissions of defence counsel, the Crown not opposing and given the duration of this sentence, time for payment of the victim fine surcharge is extended to 2½ years from this date.

Released: April 1, 2016

Signed: "Justice P.H.M. Agro"