Court File and Parties

File No.: 2811-998-15-01136-00

Date: 2016-05-30

ONTARIO COURT OF JUSTICE

Her Majesty the Queen

- v. -

Christine Boyle

Proceedings at Sentencing

Before the Honourable Mr. Justice G.R. Wakefield

on Monday, May 30, 2016

at Oshawa, Ontario

Appearances

B. Green – Counsel for Crown

D. Barrison – Counsel for Christine Boyle

Reasons for Sentence

WAKEFIELD, J.: (Orally)

Christine Boyle has pleaded guilty to an Over 80 from July 19, 2015, together with a Dangerous Driving Causing Bodily Harm, Fail to Stop, and Drive Suspended all from September 25, 2015.

After being charged and released on bail, she turned herself back in for what was an anticipated consent bail variation during which a different Crown viewed the situation from a different perspective resulting in Ms. Boyle remaining in custody until her sentencing date.

As of February 19, 2016, plea date, the Crown's custodial position on sentencing is a one-month sentence on the Over 80, 121 days of pre-sentence custody followed by a consecutive three months on the Dangerous Operation Causing Bodily Harm; a further consecutive 12 months for the Fail to Remain, and a two month consecutive for drive suspended for the ADLS breach, totaling the equivalent global custodial sentence of 24 months. The Crown also submits a 10 year driving prohibition and two years' probation, as well as a D.N.A. order would be appropriate.

Counsel for Ms. Boyle on the Dangerous Operation and Fail to Stop with Drive Suspended urges a notation of the pre-sentence custody followed by an intermittent custodial sentence of 90 days and two years' probation with a Driving Prohibition of five years. On the Over 80 count, counsel submits either a $1,700.00 fine if Ms. Boyle receives an intermittent sentence, or a consecutive 15 days should she remain in continuous custody.

Both Crown and Defence concur that relevant case law is all over the map without any real guidance as to a road map for the appropriate societal response to such crimes, pursuant to the sentencing principles.

Factual Background

The Over 80 Offence

The admitted facts on the Over 80 is that Ms. Boyle was the subject of a radio call for police attendance at a gas station. She was forthright in admitting alcohol consumption to the officer, albeit minimizing it to only one beer hours earlier, which together with a Sergeant's earlier driving observations, gave the arresting officer the ability to make an Approved Screening Device demand resulting in a fail followed by arrest and breath sample readings of 140 and 130 truncated. She was released with the automatic ADLS driving licence suspension order.

The provincial offence charges of unlawful liquor in her vehicle and improper validation tag were ultimately withdrawn.

Ms. Boyle is a qualified transport truck driver who at all material times was an employee driver for a truck company.

While not explicitly admitted in the factual underpinnings of the plea, there is reference to her driving her usual truck to give some credence to the Crown submissions that Ms. Boyle immediately returned to work as a truck driver notwithstanding her three month ADLS suspension, which I find as an inferential fact from the plea acknowledgement.

The Dangerous Operation and Fail to Stop Offences

Approximately nine weeks later, driving her usual transport truck for work, and while still suspended from driving privileges, Ms. Boyle drove her truck northbound on Highway 12 while extremely fatigued from excess hours of driving. She fell asleep at the wheel. Her truck veered into the southbound lane striking a GMC pick-up truck operated by the victim, Mr. Bryan Sydney, tossing his vehicle onto its roof in a roadside ditch, and causing Mr. Sydney life altering injuries.

Ms. Boyle continued northbound. Even given the gross disparity in the respective vehicle sizes I find it impossible to believe that Ms. Boyle, even impaired by her fatigue, could not have known that she struck something substantial. She did not stop to find out. Her later conduct clearly demonstrated an awareness of having been in an accident. She drove considerably further north before stopping at a gas station in Beaverton where Ms. Boyle telephoned her employment supervisor to advise her truck had been damaged by a hit and run while she was in the gas station washroom. I infer her appreciation that such a report would result in a police investigation amounting to an attempt to obstruct justice or obstruct police or a public mischief as an aggravating factor.

Ms. Boyle returned the truck to the company yard and despite being told not to, commenced washing the area of the truck damaged by the impact.

It is common ground between Crown and Defence that police investigation of this accident site left a lot to be desired. One might wonder whether that investigation amounted to anything more than a mere attendance at the accident site. The investigation was certainly sufficiently defective as to support a number of triable issues.

Ms. Boyle's employer, Mr. Bradley, was more proactive. He had heard of the rollover accident on Highway 12. He attended the accident site. He examined the area. He retrieved debris which came from the truck Ms. Boyle was driving. Mr. Bradley had attended the gas station in Beaverton where Ms. Boyle had claimed the truck damage had occurred. There was no debris to be found there.

Mr. Bradley, despite the financial risk to himself and to his company from any liability, directed the police to be told of his findings. That resulting in re-attendance by the police at the accident scene retrieving further debris, and at the gas station to seize the video surveillance there which confirmed there was no such hit and run as described by Ms. Boyle having had occurred.

In my view, Mr. Bradley and his company should be nominated for recognition by the Durham Police and the trucking industry for demonstrating the high civic responsibilities our society expects of the trucking industry in return for the privilege of operating large transport trucks on our roadways. I express this despite my concerns regarding the number of hours Ms. Boyle apparently drove each day for this trucking company.

Victim Impact

Mr. Sydney's Victim Impact Statement describes being hit by Ms. Boyle's truck, his vehicle rolling over several times which caved the roof inwards. Photographs of the resulting damage to the pick-up truck are evocative as to the severity of the damage and likelihood of a fatality. Despite a bent neck preventing full breathing and spitting up blood, despite his fear of the vehicle bursting into flame, he managed to free himself and roll to the ground. Flagging down a passerby, the victim is initially taken to a local hospital where he was diagnosed with a neck broken in three places and at risk of paralysis. In a neck brace and back board and given pain medication which was not sufficiently effective, he was driven to Kingston Hospital by ambulance where his surgery was delayed until the following day.

That surgery comprised fusing the top three vertebrae with titanium rods and hospitalization for an additional six days with the consequential financial costs for his family to stay in Kingston with him. A spinal collar for a further three months and with him still in pain after four months, with a six inch scar down the back of his neck, and now with the inability to turn his head properly when driving has meant a life altering result. The injuries have challenged his new construction business and his plans to build his own house on recently purchased property.

In his Victim Impact Statement, Mr. Sydney summarizes his future as follows: "This experience has definitely changed me in every aspect of my life for the rest of my life from all my hobbies from hunting, fishing, snowmobiling and ATVing; everything is more difficult, as well as my work. I'm in construction with a very successful business and was on my way to run the onsite portion of the company now with an uncertain future; I'm left wondering where I will be in the future".

I sincerely doubt that there will be any day in Mr. Sydney's future where he is not reminded of Ms. Boyle's truck hurtling towards him.

Mr. Sydney has suffered the consequences every driver on the road is at risk of suffering when a transport truck driver fails to be responsible in operating large trucks.

Ms. Boyle failed that responsibility.

Mitigating Factors

Ms. Boyle expressed her remorse for her criminal failure by pleading guilty. I do accept that her plea was not one resulting from a foregone conclusion but was given despite triable issues and an expression of true remorse consistent with her personal expression of remorse and apology given from the prisoner's box in court.

Ms. Boyle is not a stranger to the consequences of drinking and driving, given her prior impaired conviction in 2004, which conviction has clearly not deterred her from committing the same offence.

Additionally, Ms. Boyle has a driving record commencing in 2001 when she was approximately 16 years of age with a speeding conviction and again a speeding conviction in 2002. Between 2008 and the offences at bar, four further speeding convictions, as well as convictions for lacking a validation sticker and not having proof of insurance. While I appreciate the latter offences may indicate financial challenges, they also indicate a willingness to ignore the rules in order to continue driving.

Ms. Boyle is now 31 years of age. Until this offence she was gainfully employed and a single mother to a three-year-old son. Adopted soon after birth by the Boyle family who a couple of years later conceived a son naturally, Ms. Boyle reports a conflicted relationship with her adoptive father, and a suggestion of possible resentment at the perception of the Boyle family treating their biological son preferentially. She now blames her brother for intervening with her adoptive parents which prevented her from obtaining bail on these charges.

Despite turbulent teen years, and abusing drugs and alcohol, the latter substance of continuing concern, Ms. Boyle has demonstrated a willingness to work and be self-supportive and a good mother to her son. She had already accepted the long term loss of her driver's licence and had obtained employment by painting contracts prior to her incarceration. Today I have been provided confirmation that has used her custodial time productively with the completion of two courses and she has confirmation of employment awaiting her upon her release from her incarceration.

Her Pre-Sentence Report sets out her disappointment in her adoptive parents in applying for custody of her child while she is imprisoned. She expressed confidence in regaining custody upon her release. I acknowledge that a lengthier sentence would mean her son will become established in the grandparents' home and lessen the likelihood of a Court disrupting the residential status quo. I also acknowledge that this impact on Ms. Boyle and her son should be a factor in the proportionality of the sentence to the criminal offences.

With respect to the July 19th Over 80 offence, Ms. Boyle in her Pre-Sentence Report is clearly minimizing her responsibility and culpability by asserting that she had only two king cans and was not intoxicated despite her B.A.C. readings. I reject her suggestion that not consuming alcohol regularly resulted in a lower tolerance. Quite the contrary, Ms. Boyle had sufficiently high tolerance to alcohol given she must have driven to the gas station exercising the necessary fine motor skills, and presented minimal indicia of impairment to the arresting officer who described her being steady on her feet and no difficulties with her speech, while having consumed sufficient alcohol to produce readings within twenty milligrams of twice the legal limit. Ms. Boyle is in denial as to the detrimental role alcohol plays in her life, and by extension, in the life of her son.

Legal Principles

The Supreme Court recently in R. v. Lacasse, 2015 SCC 64, at paragraphs 73 and 74, noted that:

"While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences which might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences."

The Court goes on to re-affirm R. v. Proulx, [2000] 1 S.C.R. 621, para. 129, that:

"Dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties."

The Court again states that the objectives of deterrence and denunciation must be emphasized in imposing sentences for this type of offence.

In R. v. Rawn, 2012 ONCA 487, at paragraphs 33, 41 and 45, the Ontario Court of Appeal sets out that:

"General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one...other likeminded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is therefore, punishment. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public are injured."

The Court emphasizes that "to meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such a conduct is completely unacceptable." I take this to mean a sentence, borrowing from some recent impaired cases, which will intimidate the public into compliance with the law and their duty of safety to everyone in the community.

I also accept the principle of consecutive sentences for dangerous operation and fail to remain being necessary as deterring different legally protected interests within the context of the totality principle: R. v. Gummer.

A further guiding principle, though in the context of the mens rea standard, is observed in R. v. Hundal, 1 S.C.R. 867, at paragraphs 30 and 31, referencing a collision caused by an overloaded dump truck, and quoting from that, the Licensing Requirement:

"First, driving can only be undertaken by those who have a licence. The effect of the licencing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licencing requirement for drives. Licenced drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads. As a result, it is unnecessary for a Court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well being coupled with the basic knowledge of the standard of care required of licenced drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licenced drivers."

In my view, the standard of care imposed on licenced drivers to operate motor vehicles prudently is even higher with regard to those drivers who obtain their AZ transport truck licences given the consequences of such larger trucks colliding with motor vehicles on the highway.

I am not prepared to accept the Crown submission that I take judicial notice of the high number of transport truck collisions and resulting fatalities during the recent 401 construction through this Region as justification for an increased sentence. I have not been provided with any judgment arising from those accidents and I believe they are still in the justice system. Those cases do demonstrate the potential tragedies caused when large trucks collide with smaller vehicles and the need for a higher standard of care for truck drivers as evidenced by the need for a separate, additional licencing process. I have not been provided with any statistical analysis of dangerous operation charges or convictions in this Region, but do note that the seriousness of this charge is amply demonstrated in the statistical analysis set out in Hundal. In the succeeding twenty-three years since that decision, truck drivers such as Ms. Boyle have not been deterred.

A relatively recent case in this jurisdiction, R. v. Singh, [2010] O.J. No. 4032, a dangerous operation causing death when a dump truck went through a red light and "t-boned" the victim's car, gave rise to that Court observing at paragraph 42:

"As Mr. Singh acknowledged himself, operators of trucks the size that he was operating on December 20, 2007, must exercise extra care because of the damage that they can do in the event of collisions. Mr. Singh's reckless actions were far short of the extra care he knows he should have exercised."

Despite the deterrent message of two years' imprisonment in the Singh case, Ms. Boyle has not been deterred from driving while impaired by fatigue. Ms. Boyle, like most drivers in her occupation, are hardworking community members struggling to make a living and support their families in difficult economic times. Such drivers are usually law-abiding citizens. However, to keep their jobs, to continue earning an income, there will always be the temptation to drive a few extra hours despite fatigue, or drive faster to make up for lost time or making a delivery deadline, or making one more trip and delay necessary vehicle maintenance, or otherwise let slide their duties to the public for the privilege of operating such large vehicles.

Ms. Boyle made a choice to keep driving while fatigued to the extent of dozing off while driving. Just like the impaired by alcohol driver who chose to drink and drive. Given the additional duty of care imposed on a truck driver and the knowledge of the increased carnage falling asleep would create, I see little difference between the type of culpability of the impaired by alcohol driver and the truck driver impaired by fatigue. The public demands that a truck driver risk termination of employment by refusing a trip if too tired rather than risk falling asleep at the wheel and endangering vulnerable members of the public.

I note in the recent case of R. v. Muzzo, 2016 ONSC 172, the Court imposed concurrent sentences of 10 years imprisonment on the counts of impaired driving causing death, and five year sentences on the counts of impaired driving causing bodily harm.

In my view, the Muzzo case expressed the public's demand for a punitive sentence to deter, or intimidate, otherwise law abiding citizens into compliance with the law, and that deterrent message is equally applicable to truck drivers who would choose to drive while impaired by fatigue. Previous case law with sentencing ranges of lower reformatory to upper reformatory have clearly not had the necessary deterrent effect on this offender.

Defence has provided me with a number of cases in support of a minimally intrusive sentence. The Smith case, [2015] O.J. No. 134, is clearly distinguishable given that Defendant's cognitive impairments; in Dubovina, [2015] O.J. No. 1164, the Defendant received a sentence which recognized rehabilitation and involved a Defendant operating a regular car, not a truck; in Rayner, [2014] O.J. No. 2444, the Defendant received an intermittent sentence partly due, like Ms. Boyle, to the impact of incarceration on that Defendant's child, as well as the fact the Crown position of 60 to 90 days jail in circumstances of that Defendant crawling over after the accident to assist her victim.

The Smith decision at [2016] O.J. No. 602, also had a hit and run but only the one count of fail to remain and resulted in merely a fine despite severe injuries to the victim in circumstances lacking the greater duty of care imposed on Ms. Boyle as a truck driver.

Had Ms. Boyle been convicted after trial, with her enhanced duty of care and prior record, and the severity of injuries to the victim, I would have anticipated a totality sentencing range of three to five years. That is a sentence which I believe would resonate throughout the trucking industry and intimidate all such drivers into prioritizing public safety over their personal circumstances.

However Ms. Boyle was not convicted after trial, but accepted responsibility in the face of real triable issues given the investigatory lapses by the police. Her plea of guilty saved Mr. Sydney from testifying and re-living his trauma in court. Her plea potentially saved countless days of preliminary hearing and trial, and while a strong case for the Crown, hardly overwhelming even taking into account Ms. Boyle's conduct after the offence. I accept her plea as a true expression of remorse within the context of her focusing more on the consequences to herself. However, I do reject her assertion, when asked if she anything to say prior to sentencing, that she was unaware of the accident at the time it occurred. Rather than resiling from the facts on plea, I take her claim to be minimizing arising from the fear of a consecutive sentence on the Fail to Stop requested by the Crown, which interpretation of Ms. Boyle's words is consistent with the lack of any attempt to strike the plea on that count.

I must look at the proportionality of the sentence to the offence and the offender. The injuries suffered by Mr. Sydney are life altering and will plague him for the rest of his life. Ms. Boyle's choices included one of choosing to drink then drive. Then ignore the ADLS suspension, which if obeyed, would mean there would not have been the accident and Mr. Sydney would today be enjoying full health. Ms. Boyle chose to drive while impaired by fatigue and compounded her offence by then choosing to flee the accident scene, abandoning Mr. Sydney to his fate. While Ms. Boyle could not have known the severity of the victim's injuries, the very purpose of the fail to remain charge is to determine and ensure the well being of the victim. Ms. Boyle then chose to falsely report a hit and run to explain the truck damage, and chose to ignore the direction to leave the truck alone by washing off the damaged area. She chose on that day to abdicate any personal responsibility.

In life, there are many choices, and there are consequences to those choices.

Sentencing Decision

With respect to the July Over 80 count, notwithstanding the lack of notice being filed, there will indeed be the 15 day jail sentence consecutive to the following dispositions.

With respect to the Dangerous Operation Causing Bodily Harm, I impose a consecutive sentence of eighteen months less credit for pre-sentence custody of 167 days which I credit on a one and a half to one day for the equivalent credit of 251 days leaving a remnant of nine months and 19 days.

With respect to the count of Fail to Stop, I impose a sentence of four months' incarceration consecutive to all other sentences.

With respect to the Highway Traffic Act charge of Drive While Suspended, there will be a consecutive sentence of 30 days, notwithstanding this would be her first conviction for this type of offence, given the injuries to the victim which would not have occurred had Ms. Boyle respected the ADLS suspension.

It is no doubt apparent that I agree with the Crown's assessment of their sentencing position as being generous to Ms. Boyle given the accumulated aggravating factors arising from the Defendant's choices and severity of the victim's injuries. I acknowledge the principle that a sentencing judge should rarely exceed the Crown position on sentencing, and decline to do so on this occasion. The sentence is the global equivalent of 23 and one-half months.

Probation and Conditions

Following the incarceration there will be a period of probation of two years duration. The terms are you will keep the peace and be of good behaviour. You will appear before the Court when required to do so. You will notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation.

You will report in person to a probation officer within two working days of your release from custody and after and at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

You will not contact or communicate in any way directly or indirectly with any physical, electronic or other means with Bryan Sydney, except through legal counsel and for any required court attendances.

You will attend and actively participate in all assessment, counseling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for alcohol abuse and under other, any other counseling that will assist in rehabilitation. I do acknowledge that you have completed two courses successfully while in custody. You clearly have the ability to benefit from such counseling and I just ask that you continue to work in that regard, it is only going to help you with respect to regaining custody of your child in any event.

You will sign any release of information forms that would enable your probation officer to monitor your attendance and completion of any assessments, counseling, rehabilitative programs as directed.

Additional Orders

Additionally, there will be an order pursuant to Section 743.21 of the Criminal Code prohibiting the Defendant from communicating with Bryan Sydney during the custodial period of her sentence, subject to an exception of through legal counsel.

Given the prior criminal and driving record of Ms. Boyle, the circumstances of these offences, and the minimal impact on her personal integrity, there will be an order that she provide a sample of her D.N.A. (secondary order on both the Dangerous Operation Causing Bodily Harm and Fail to Stop counts).

Driving Prohibition

As for driving prohibition, the Crown is submitting one of ten years' duration while the Defence is advocating for one of five years. It is important to note that the circumstances of this offence is one in which both Crown and Defence acknowledge the need for a substantial prohibition. In my view, most of the aggravating factors here arise from the breach by Ms. Boyle of her enhanced duty of care from her AZ licence. As such, I order that Ms. Boyle be prohibited from driving any vehicle requiring an AZ licence for ten years, and be prohibited from driving all motor vehicles for a period of five years. Both prohibition orders will commence upon Ms. Boyle's release from custody. And I am obliged to warn you Ms. Boyle that if you are found driving in breach of my order and circumstances in which the Crown elects by way of indictment, it will put you at risk of up to five years in a penitentiary.

Victim Surcharge

I believe the offence date would open up the issue of Victim Surcharge and as such I believe that would mean $200.00 on each count. Two days in default for non-payment and clearly the 60 days in which to pay each of these Victim Surcharges is inherently impossible. I am open for a very extended period of time. I am thinking 36 months so it is a round three years.

Frankly it is going to take some time for Ms. Boyle to get back on her feet. She may have Family Court costs involved, depending on the status of her son and his then placement. I want to give her as much time as possible to get back on her feet financially and I will ask you to explain to her the extensional time procedures and I certainly be open to any update to extend the period further if necessary at that point.

Conclusion

You're under sentence ma'am. I do wish you the best of luck and I do wish things turn out well for you. That the job is still waiting for you. You need that and you demonstrated you can work and if it is not waiting for you, frankly you have demonstrated your ability to find employment and create a good place for you and your son. Thank you.

Released: May 30, 2016

G.R. Wakefield, J.