R. v. DeJong

Court Information

Court File No.: London 15-12041

Date: June 16, 2016

Ontario Court of Justice

Before: Justice Eleanor Schnall

Heard: March 2, 2016

Reasons for Sentence Released: June 16, 2016

Counsel

For the Crown: J. Perfetto

For the Accused: J. Dean

SCHNALL J.:

Introduction

[1] This is yet another one of too many cases of preventable tragedy that come before this court involving the fatal combination of a young man, alcohol and driving resulting in death.

[2] Mr. DeJong pleaded guilty on March 2, 2016 to one charge that "… on or about October 7, 2015, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mgs of alcohol in 100 milliliters of blood, operated a motor vehicle and cause an accident that resulted in the death of another person, namely Andrea Christidis, contrary to s. 255(3.1) of the Criminal Code.

[3] To paraphrase, this is a charge of over 80 causing death.

[4] He had been charged with offences relating to bodily harm, criminal negligence causing death, and impaired operation causing death. Those charges would be withdrawn upon entering a plea to the over 80 causing death charge.

[5] For the purposes of my analysis in this case, I use the term impaired operation, or impaired driving, or over 80, interchangeably. My meaning is that the offence is one of 'drunk driving' to use the more colloquial term.

[6] Both impaired operation causing death and 'over 80' causing death, attract a maximum sentence of life imprisonment. They are equally serious offences and are dealt with as such.

The Facts

[7] The evidence was submitted in a Statement of Agreed Facts, filed March 2, and an Addendum to those Agreed Facts filed April 28th.

[8] Mr. DeJong, who was not a student at the university, and three friends, had planned to engage in an afternoon and evening of entertainment, watching a sports game and drinking. The plan was to then attend at the Lux Apartments in London, Ontario to pick up a friend.

[9] They went to The Spoke, a bar on campus and over a period of about three to four hours, they watched the game, and split 3 pitchers of beer among themselves.

[10] Mr. DeJong then chose to drive. He drove his father's motor vehicle through the Western University campus, on the way to the Lux Apartments.

[11] On the way, his vehicle struck and killed a pedestrian, Ms. Andrea Christidis.

[12] Ms. Christidis was a first year student at Western. She was 18 years old.

[13] The Statement of Agreed Facts spelled out how Mr. DeJong, with his three friends in the car, proceeded around the traffic circle next to Alumni Hall, where he cut past a London Transit bus, and proceeded down Lambton Drive, where he drove through two intersections controlled by a stop sign, without stopping at either.

[14] In addition to the Statement of Agreed Facts, the court viewed two video clips from cameras on the two municipal buses, showing the driving conduct of Mr. DeJong as he proceeded down Lambton Drive.

[15] He swerved out of his lane and other cars had to take evasive action. The nature of his driving and the risk he posed to other vehicles and persons would amount to dangerous driving.

[16] The area was well-lit. The speed limit was 40 kph, changing to 30 kph. Witnesses gauged his speed to be highly excessive, as much as 90 kph in those zones.

[17] Where the road curved sharply to the left, with a posted speed of 20 kph, Mr. DeJong, travelling at high speed, lost control, his vehicle went up on two wheels, and struck Ms. Christidis from behind, where she was walking along the sidewalk in the same direction as the vehicle. She had no opportunity to take evasive action.

[18] The impact threw her 10 metres. She sustained life-threatening injuries.

[19] After impact, Mr. DeJong and one friend fled the scene, but Mr. DeJong returned shortly afterward. He spoke to police at the scene. He was cooperative with police. He was charged with impaired operation causing bodily harm and 'over 80' causing bodily harm. This was subsequently upgraded to causing death when Ms. Christidis succumbed to her injuries and passed away two days later.

[20] Mr. DeJong provided samples of his breath which registered 171 mgs of alcohol in 100 mls of blood, more than twice the legal limit and in the statutorily aggravated range.

Sentencing Positions of Counsel

[21] The Crown seeks a sentence of five years in the penitentiary and a 10 year driving prohibition.

[22] The defence seeks a sentence of two years penitentiary followed by three years' probation, or three years in the penitentiary and the same driving prohibition.

Sentencing Considerations

[23] The court must consider the nature of the offence, the accused's blameworthiness, the offender's circumstances and the consequences of the offence to the victim and her family.

[24] Section 718 sets out more specifically additional factors to be considered. I will review those later.

[25] The primary focus of sentencing in these cases involving drinking and driving and death calls for general deterrence as the foremost consideration.

The Circumstances of Mr. DeJong

[26] Mr. DeJong was 24 years of age at the time. He is now 25.

[27] He has no criminal record.

[28] He has one Highway Traffic Act conviction for distracted driving.

[29] He has a very positive pre-sentence report. It reflects that he has strong family support. He comes from a loving supportive family with a number of siblings and parents who supported their children in their various endeavours.

[30] Mr. DeJong completed high school and one year at college. He played sports for the college and won awards. He left to take up an apprenticeship, as a machinist, working for two years. He was described as an excellent worker, who required minimal supervision. He held a number of other jobs before returning to college in 2012 to pursue an Advanced Diploma program in Construction Engineering Technology Management. He was to graduate in 2016 but he did not return to college after he was charged, finding himself mentally unable to return. The college apparently has a seven year program, and he would have until 2019 to complete his program.

[31] The pre-sentence report indicates that Mr. DeJong has engaged in personal counselling where he has acknowledged his remorse and admitted having made a huge mistake. He told the author of the report that the court matters have changed him as a person and he feels a strong desire to dedicate his life in sharing his experience with youth and young adults to show the risks of drinking and driving so that other families would not go through the grief and suffering.

[32] The report also describes him as feeling remorse, guilt, shame and regret. He expressed empathy for the victim's family.

[33] He pleaded guilty. His counsel advised that there had never been any waiver on Mr. DeJong's part from his intent to enter a guilty plea.

[34] He is remorseful, and appeared very sincere when he apologized to the Christidis family and expressed his sense of remorse, guilt and shame when he addressed the Christidis family at the sentencing hearing.

[35] Mr. DeJong has not breached any of the terms of his release since October 8, 2015.

Consequences to the Deceased and Her Family

[36] Ms. Christidis was the younger of two daughters. She and her family were part of a very strong, closely knit Greek community, with very close ties to immediate and extended family members.

[37] Many of the family members read their victim impact statements aloud to the court at the sentencing hearing.

[38] Everyone spoke of Andrea Christidis as a unique young woman, a friend to everyone, cherished by family and friends alike. She served as role model to many as a very intelligent and excellent student who exhibited personal warmth and charm.

[39] All generations of the family, including her 82 year old grandmother have been devastated by this huge loss to this closely-knit family.

[40] They struggle to know how to deal with their grief and loss.

[41] Several of her friends, family members, her university friends and her residence room-mate also read their victim impact statements aloud. They spoke of the keen and unrelenting sense of loss and grief. They have suffered from post-traumatic stress disorder; their academic studies have suffered. Some have left the university and returned to their homes in Toronto.

[42] Everyone who spoke described how their lives have been torn asunder by this event.

[43] A number of those who spoke referred to the loss of their sense of security, not only on campus, but also how they are now fearful when they go out and feel the world is no longer a safe place.

[44] A student from Medway/Sydenham spoke on behalf of the 600 students at this on-campus residence. She spoke about how deeply this tragedy has affected those students and the 30,000 students at Western.

[45] The Hellenic Society of UWO was represented by Ms. Christidis' uncle who also spoke of how the tightly knit Greek community has lost its sense of safety.

Aggravating Factors

[46] The pre-conceived plan to consume alcohol and then drive to a friend's residence is an aggravating factor. In other words, there was a plan to drink alcohol and drive. Mr. DeJong had other options. They could have taken a cab; a bus, one of the ones that were on the same road as he was; a non-drinking friend could have driven.

[47] The driving occurred on the very busy campus of the University, with busy traffic and pedestrians.

[48] The consequences to the deceased and the deceased's family were terrible and tragic.

[49] Mr. DeJong's blood alcohol concentration was in the statutorily aggravated range, more than twice the legal limit.

[50] His driving conduct prior to the collision amounted to dangerous driving, putting himself, his passengers and other drivers and pedestrians at risk.

Mitigating Factors

[51] As in so many of these drinking and driving cases, which makes this so difficult, the offender comes before the court, as does Mr. DeJong, with a number of mitigating factors to his credit.

[52] As noted above, he has a positive presentence report, a supportive family, excellent references and strong employment skills.

[53] He has no criminal record.

[54] He is sincerely remorseful. As the victim impact statements were being read, I saw Mr. DeJong in tears from time to time.

[55] There is no indication that Mr. DeJong suffers from substance abuse or mental health issues. He is clearly a young man who has excellent prospects of rehabilitation, who has demonstrated regret, remorse and a sense of responsibility and is not likely to commit an offence like this again.

[56] He pleaded guilty.

[57] He was 24 at the time. He is now 25 years of age, a youthful first time offender.

[58] The court recognizes all these as mitigating factors but in the context of sentencing in drinking and driving cases, what weight should be ascribed to these mitigating facts?

[59] The guilty plea is a significant mitigating factor. It obviates the necessity of a trial, which would put the Christidis family through the trauma and distress of re-living what happened to Ms. Christidis. It eliminates the possibility, remote as it is in this case, of a potential acquittal.

[60] Less weight, however, should be ascribed to the other mitigating factors, in particular the youthful age of Mr. DeJong.

[61] I will deal with this further when I refer to cases submitted by Crown counsel, Mr. Perfetto.

[62] Sentencing is not an exact science.

[63] Offences such as impaired driving causing death can be committed in an infinite number of ways and the circumstances of the offender and consequences to the victim are also of a great variety.

[64] Therefore trial judges must look at other cases, decision of appellate courts to confirm the principles of sentencing that have been applied and to determine the appropriate sentence in each case.

[65] I have reviewed the cases provided by the defence counsel Mr. Dean and those provided by the Crown, Mr. Perfetto.

Case Law

Cases Provided by Defence Counsel Mr. Dean

R. v. Sabino

[66] This was a decision of this court, rendered in November, 2015, involving two counts of dangerous driving causing death and causing bodily harm. Mr. Sabino pleaded guilty. He was roughly the same age as Mr. DeJong. He had the same level of strong family support, the absence of a criminal record, and a positive pre-sentence report. He was sentenced to two years less a day.

[67] While the court found that earlier consumption of alcohol and drugs was an aggravating factor, the evidence did not rise to the level of impaired operation causing death. Therefore the Crown did not proceed on those charges and they were withdrawn. As a dangerous driving case, the Sabino case is significantly distinguishable from the present case.

R. v. Glenfield

[68] While it is a more recent decision in 2015, its relevance is also somewhat limited, as it is not an impaired driving case. I note it mostly for the emphasis that the court placed on the fact that Mr. Glenfield was being sentenced on the lesser charge of dangerous driving causing death, not impaired operation causing death. It is distinguishable also because the sentencing decision was based on a joint submission by Crown and defence, whereby the impaired charge was withdrawn for a guilty plea on the dangerous driving charge.

[69] The court took great care in explaining why it accepted the joint submission. The sentence was two years for the dangerous driving causing death followed by three months for refusing to provide a breath sample.

R. v. Vancho Boukchev

[70] A dated 2003 decision of the Ontario Court of Appeal is also distinguishable. It also is not an impaired operation case, but one of dangerous driving causing death. Yet the Court of Appeal increased the sentence to five years in prison, before deducting a credit of nine months for pre-sentence custody.

R. v. Persaud

[71] Is also a somewhat dated case, a decision of the Ontario Court of Appeal, in 2002. This also is not an impaired driving case. The Court of Appeal imposed a sentence of imprisonment for 20 months, instead of a conditional sentence, on a charge of criminal negligence causing death, while the offender was under the influence of alcohol. A conditional sentence is not available in these cases now, and the case is dated; it is of little assistance in determining a fit sentence for Mr. DeJong.

R. v. Rabolt

[72] As noted in the case of R. v. Rabolt, in 2009, the courts have retreated from what was then a trend of imposing a conditional sentence on dangerous driving or impaired driving causing death, a trend that recognized that often the offenders were people of good character without a criminal record.

[73] In that case, as noted by Judge Boswell of the Ontario Superior court, the current trend was to return to harsher penalties because the message was not being heard that drinking and driving was unacceptable. At paragraph 39, Boswell, J., said: "Drinking and driving offences continue to be viewed as some sort of lesser class of criminal offence,… as mistakes otherwise good people make when their judgment is clouded by alcohol. The message must continue to be reinforced that these are not simple mistakes but are serious crimes and will result in serious punishment."

[74] Mr. Rabolt was convicted of one court of impaired operation causing death and one count of "over 80" causing death. The victim was Mr. Rabolt's passenger, his best friend. The Over 80 charge was stayed.

[75] A sentence of three years would have been imposed but was reduced to 30 months by the sentencing judge because the deceased's family, who had forgiven Mr. Rabolt, did not want to see him jailed.

[76] Appellate courts have noted that sentences have increased in severity for these types of offences involving drinking and driving because of the heightened recognition for the need for general deterrence and protection of the public and the failure, to date, of having the public understand, and have it imprinted, that drunk driving is unacceptable.

Cases Referred to by the Crown

[77] I do not intend to refer to all the Crown cases in great detail.

R. v. Lacasse, 2015 SCC 64

[78] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada confirmed the trial judge's decision to give less weight to an offender's youth as a mitigating factor because, as noted in paragraph 79 "..it is young people who are affected the most by motor vehicle accidents that result from impaired driving".

R. v. Ramage, 2010 ONCA 488

[79] In R. v. Ramage, 2010 ONCA 488, the Ontario Court of Appeal dismissed a sentence appeal following a trial on numerous drunk driving charges. Mr. Ramage was a former professional hockey player, an exemplary citizen, who was sentenced to four years in the penitentiary following a trial on a number of charges of drunk driving causing the death of his passenger and good friend, Keith Magnuson and injury to another driver.

[80] Despite the positive attributes of Mr. Ramage, the appellate court confirmed the four year sentence, referring at length to the decision of the Ontario Court of Appeal in R. v. McVeigh, in 1985. In R. v. Ramage, 2010 ONCA 488, in 2010, appeal court Justice Doherty remarked that the trial judge correctly applied the principles in R. v. McVeigh, that the general deterrence was the prime concern, and that drinking driving offences were serious crimes and were to be treated as such by the courts.

R. v. McVeigh

[81] The R. v. McVeigh decision also recognized that many people who commit serious crimes while drinking and driving will be good citizens who have never been involved with the criminal justice system.

[82] As Justice Doherty remarked in paragraph 75 "..the result in R. v. McVeigh demonstrates the court's commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs."

[83] In R. v. McVeigh, the sentence was increased from 21 months to three years. Mr. McVeigh was 31 years old, employed with a wife and children. He was convicted of criminal negligence causing death, impaired driving and 'over 80". The latter convictions were stayed by the trial judge. He was drunk when he drove his truck and struck and killed a 14 year old boy.

[84] ACJO MacKinnon for the appellate court said, at page five: "No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking."

[85] These were comments and an appeal court ruling made more than 35 years ago. Jurisprudence since then has held that penalties should be increased, and punishment made more harsh if deterrence is to work.

R. v. Junkert, 2010 ONCA 549

[86] In R. v. Junkert, 2010 ONCA 549, in 2010, the Ontario Court of Appeal upheld a sentence of five years for impaired operation causing death. Mr. Junkert drove his vehicle through a residential area, at high speed, hitting other cars, and striking the deceased, who was jogging, killing her instantly. His blood alcohol concentration was 130 mgms of alcohol in 100 mls of blood.

[87] The trial judge noted the high speed and significant impairment. Despite the absence of specific findings of fact on these aspects by the trial judge, the Court of Appeal refused to disturb the sentence, Appeal court Justice O'Connor noting at paragraph 46: ".. a sentence of five years for this offence cannot be said to be a 'substantial and marked departure' from the sentences ordinarily imposed on similar offenders for similar offences. In recent years, there has been a recent upward trend in sentences for drinking and driving offences, a trend attributable to society's abhorrence of the tragic results of these offences."

R. v. Niganobe and R. v. Hall

[88] In its decision the appellate court referred to R. v. Ramage, 2010 ONCA 488, (noted above); the case of R. v. Niganobe, [2010] O.N.C.A. 508, a decision of the Ontario Court of Appeal in 2010 confirming a five year sentence for an aboriginal offender on one charge of impaired driving causing death; and R. v. Hall, upholding a sentence of four years and 10 months for impaired driving causing death. The offenders in Hall and Niganobe had prior records; Mr. Ramage did not.

[89] At paragraph 49, Justice O'Connor goes on to note: "I recognize that sentences of four to five years may be at the high end of sentences imposed by the court to this point in time. That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court. While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and this it quite properly continues the very gradual trend that has taken place over recent years." This is a principle I intend to follow.

[90] I observe here that those comments and the decision were made six years ago.

[91] Since then the Ontario Court of Appeal has confirmed other incremental sentencing cases involving drinking and driving.

R. v. Kummer, 2011 ONCA 39

[92] In R. v. Kummer, 2011 ONCA 39, the Ontario Court of Appeal confirmed the eight year sentence of imprisonment imposed for three counts of impaired driving causing death, three counts of dangerous driving causing death, two sets of parallel charges causing bodily harm, a total of ten charges, following guilty pleas.

[93] This case originated in London where the sentencing judge was very familiar with other similar cases in this jurisdiction.

[94] Mr. Kummer's blood alcohol concentration was twice the legal limit. He drove through a stop sign, struck another car, killing his own passenger and two children in the other car. The circumstances were horrific as the children died, caught in the burning vehicle, as their father watched, unable to save them.

[95] Mr. Kummer had ignored the advice of friends telling him to slow down. While not having a criminal record, he did have a significant driving record which was seen as an aggravating factor. The fact that no one told Mr. DeJong not to drive that night is not a mitigating factor and is not relevant.

[96] There are obvious and significant distinctions between the present case and the Kummer case. The present case therefore attracts a lesser sentence than eight years.

[97] The Court of Appeal noted that Mr. Kummer received a sentence greater than was imposed in Ramage and Junkert but this was justified, as there were three victims involved.

R. v. Luskin, 2012 ONSC 1764

[98] In R. v. Luskin, 2012 ONSC 1764, Justice Trotter of the Ontario Superior Court of Justice imposed a sentence equivalent to eight years, including credit for pre-sentence custody. Mr. Luskin was impaired by alcohol; he drove his car at a very high speed and struck a van with 5 people in it.

[99] Three were killed. He pleaded guilty to three counts of criminal negligence causing death and two counts of impaired driving causing bodily harm.

[100] Mr. Luskin had a criminal record. While every loss of life is tragic, there was a greater loss of life involved.

R. v. Carreira, 2015 ONCA

[101] In R. v. Carreira, [2015] O.J. No. 4867 (C.A.), the Ontario Court of Appeal denied a sentence appeal and confirmed a sentence of six years for criminal negligence causing death. Mr. Carreira drove his motorcycle while intoxicated. He drove the wrong way on a one way street, locked his brakes, and crashed his motorcycle, killing his passenger instantly.

[102] The court noted the need for specific deterrence, noting the accused's record but it also stressed the needed for general deterrence and denunciation, noting that the six year sentence reflected the upward trend for sentences involving drunk driving causing death.

[103] I have reviewed the facts of these various cases to demonstrate that the carnage resulting from drinking and driving still continues.

[104] Proportionality is one of the guiding principles in sentencing. The more serious the crime and its consequences, and the greater the offender's degree of responsibility or moral blameworthiness, the heavier the sentence will be. On the night in question, neither the road conditions nor the weather contributed to Ms. Christidis' death. Mr. DeJong is entirely responsible for the collision and resulting death of Ms. Christidis.

[105] Like Justice Trotter in the Luskin case, I, too, refrain from using the word "accident" in these cases. That term trivializes the serious nature of these offences which are the result of wanton, reckless, and as described by a number of persons who read their victim statements, selfish disregard for the safety of others.

R. v. Muzzo, 2016 ONSC 2068

[106] Finally, I refer to the case of R. v. Muzzo, 2016 ONSC 2068, a decision of Justice Fuerth of the Ontario Superior Court of Justice, released in March, 2016. As described by Justice Fuerth, Mr. Muzzo's decision to drink and drive decimated four generations of one family.

[107] Three children under the age of ten years, and their grandfather were killed. Other family members were badly injured.

[108] Mr. Muzzo pleaded guilty to four counts of impaired driving causing death, and two counts of impaired driving causing bodily harm.

[109] At paragraph 77 of her decision, Justice Fuerth said: "The high degree of Mr. Muzzo's blameworthiness and far-reaching consequences of his offences sets this case apart from others. Notwithstanding the many positive aspects of Mr. Muzzo's background and character, and the fact that this is a first jail sentence for him, a lengthy penitentiary term is necessary."

[110] Mr. Muzzo was sentenced to ten years in the penitentiary for the impaired driving causing death charges and five years concurrent on the impaired driving causing bodily harm charges. The ten year sentences were reduced by the equivalent of eight months for pre-sentence custody.

[111] In reviewing the jurisprudence, Justice Fuerth acknowledged an upward shift in sentencing in cases of drinking and driving causing death. At paragraph 69, she said "The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. (referencing Junkert and Kummer). For this reason, sentencing decisions that pre-date Ramage, Junkert and Kummer have diminished value as guidelines."

[112] When one reads the multitude of cases in this area of law, it is not surprising to find variations in the sentences imposed. This reflects of course, that each case must be decided on its own facts, the consequences of the offence, and the circumstances of the offender. Sentencing is an individualized process in Canadian law. It is guided by the provisions of s. 718 of the Criminal Code.

[113] It is worthwhile to review some of these provisions and the objectives of sentencing, in applying them to the facts and circumstances of this case:

• To denounce unlawful conduct;
• To deter the offender and others from committing offences;
• To assist in the rehabilitation of the offender;
• To separate offenders from society, where necessary;
• To promote a sense of responsibility in offenders and acknowledge the harm done to victims and to the community.

[114] s. 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mr. DeJong was entirely responsible for this event.

[115] s. 718.2 requires the court to take into account mitigating and aggravating factors relating to the offence and the offender. A sentence should also be similar to sentences imposed on similar offends for similar offences committed in similar circumstances.

[116] Given the positive pre-sentence report, the degree of Mr. DeJong's remorse and the absence of record, I view Mr. DeJong as an excellent candidate for rehabilitation and the unlikelihood that he would ever commit a similar offence again.

[117] While all of the above factors must be considered, and in particular the mitigating factors I reviewed above, I consider the demand that the principle of general deterrence be paramount in this case. This is borne out by the jurisprudence, over and over again.

[118] Having regard to Justice Fuerth's comments, I consider that it is the cases referred to by the Crown, since 2010, that are most relevant and helpful in determining an appropriate sentence.

The Message

[119] One of the aggravating features of this case is that it occurred on the campus of a major university. The road Mr. DeJong drove along is a major road through the campus. At one end is the University hospital. The roadways are busy with high volume of traffic and pedestrians going to and from classes and social activities on campus. And so was this road on that night when Ms. Christidis was walking home from class.

[120] The context of this offence has captured the attention of the student body. As noted in R. v. Ranger, [2015] O.J. No. 3982 (S.C.J.), the university demographics is most likely at risk in drinking and driving cases, and therefore most likely to be deterred.

[121] The student body and the community of the university have been profoundly shaken and appalled by this tragedy. The victim impact statements reflect how broadly and deeply the effects of this senseless loss of life have been felt. The university community has been primed to receive the deterrence message. A video prepared by Western students on YouTube and played at the sentencing hearing speaks to this very issue.

[122] Young people have to hear the message. Young people and young adults are significantly involved in drinking and driving cases. The student body at Western University is particularly on notice and must be receptive to hearing and embracing the notion that drinking and driving is unacceptable and will be punished harshly, especially if a death is involved. This message must be imprinted and ingrained in everyone's mind. The time to make the decision as to drinking and driving is before the first drink is consumed, when one is sober and mindful that the penalty could well be a period of imprisonment.

[123] A number of students who spoke at the sentencing hearing described various initiatives on campus, fund-raising for MADD, articles and a tribute in the Western Gazette, the university newspaper. The Hellenic Student Society established a scholarship fund.

[124] But crime prevention and public education initiatives should not bear the sole responsibility of effecting change. The court has a responsibility by making exemplary and denunciatory decisions.

[125] I believe absolutely that Mr. DeJong had no intent to injure Ms. Christidis that night, but drunk driving causing death is not dissimilar to carrying a loaded weapon.

[126] A car with a drunk driver behind the wheel is a loaded gun. Once Mr. DeJong, a drunk driver with an alcohol concentration of 170, started to drive, he effectively removed the safety catch from the trigger of the loaded gun.

[127] The potential lethality of this conduct was acknowledged by MacKinnon, ACJO, in R. v. McVeigh (1985) 22 C.C.C. (3rd) when he said at paragraph 150, "every drinking driver is a potential killer."

[128] This conduct must attract a sentence that is exemplary, denunciatory and deterrent.

[129] As in so many of these cases, we have the tragedy of a bright young man, loved by his family and friends with a road of success ahead of him who comes before the court without a criminal record, whose actions caused the death of another young person, also loved by her family with a bright future ahead of her.

[130] That is what makes these cases so difficult in sentencing. How do we balance the nature of the crime with its drastic consequences with the positive circumstances of the offender?

[131] If we look only through the lens that a bright decent young man made a big mistake, a bad decision… then in my view we are mischaracterizing this offence.

[132] While it is true that Mr. DeJong made a big mistake and several bad decisions that night, the realistic objective lens through which this case must be assessed is that he committed a serious criminal offence that resulted in an avoidable tragedy, one that has deprived one family forever of their daughter, sister and friend, and has caused immeasurable grief to a great number of family members and friends.

[133] I pause here to acknowledge that another tragedy has recently befallen the Christidis family. I want to be very clear when I say that this factor plays absolutely no part in the sentencing process and I step aside for the moment from this sentencing decision, to acknowledge the passing of Mr. Chris Christidis, the father of Andrea Christidis, just a couple of weeks ago.

[134] The tragedy of Mr. DeJong's actions does not end with the death of Andrea Christidis.

[135] Mr. DeJong's family will also feel a loss, and be deprived of his presence and his support while he serves his sentence.

[136] And Mr. DeJong, because I accept that you are remorseful, I believe you will bear the burden of guilt for the rest of your life.

Sentence

[137] I sentence you to a term of five years in the penitentiary.

[138] I impose a ten year driving prohibition, prohibiting you from driving anywhere in Canada, on any road, street, highway or public place.

[139] I impose a victim fine surcharge. It is $200.00, to be paid in 90 days.

[140] The Crown's application for DNA is granted, as a primary designated offence and the order continues until executed.

Released: June 16, 2016

Signed: Justice Eleanor M. Schnall