Court File and Parties
Date: November 24, 2016
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Aaron Sargeant
Before: Justice F. Crewe
Reasons for Sentence released on: November 24, 2016
Counsel:
- Ms. K. Motyl — counsel for the Crown
- Mr. J. House — counsel for Mr. Sargeant
CREWE J.:
Introduction
[1] This is another in a saddeningly long line of cases where a young man must face the consequences of having consumed alcohol and then driven his car, in this case with tragic results. He has accepted responsibility for his actions, and the issue is therefore one of sentence.
Summary of the Facts
[2] On Sunday, August 16, 2015 at approximately 12:42 a.m., a 1996 Honda Civic, driven by 23 year old Aaron Sargeant, was southbound on Bellamy Road North of Lawrence Avenue East in the city of Toronto. Aleem Mohammed, 26 years of age, was seated in the right front passenger seat.
[3] Bellamy Road in this area is predominantly residential. It is four lanes wide with two lanes northbound and two southbound. The posted speed limit is 60 km/h. The intersection at Bellamy Road and Lawrence Avenue East is governed by automatic traffic lights that were functioning properly.
[4] Two police officers from 43 division were on patrol on Bellamy Road northbound north of Lawrence Avenue East when they observed the Honda travelling southbound at an extremely high rate of speed, well in excess of the posted speed limit. The vehicle was captured by the dashboard camera of the police cruiser and, before the officer could execute a U-turn, the Honda was well out of sight. A witness, who was driving at 70 km/h and travelling in the same direction as the Honda, observed the Honda overtake his vehicle and speed by him at a much higher rate of speed.
[5] Seconds thereafter, Mr. Sargeant drove the Honda through a red light into the intersection at Bellamy and Lawrence. His vehicle collided with an eastbound Chrysler minivan and a Hyundai Sonata, both of which were proceeding on a green light. Further investigation into pre-crash data retained in the Honda's electrical system determined that five seconds prior to the crash, the vehicle braked, decelerated and then quickly accelerated again. At the time of the collision, the vehicle was accelerating.
[6] Dawn Walker and Melody Walker-Campbell were in the Chrysler minivan. Both were taken to St. Mike's hospital with soft tissue injuries and released. The minivan was demolished, sustaining significant damage to both sides of the vehicle. Munat Mansoor, who was in the Sonata, was taken to Scarborough Grace Hospital with soft tissue injuries and released. The Sonata sustained significant damage to the driver's side during the collision.
[7] The Honda, driven by Mr. Sargeant, sustained catastrophic damage, as evidenced in a photograph filed as Exhibit 1. Mr. Mohammed, the passenger, was not wearing his seatbelt at the time of the collision. The evidence suggests that upon impact, his head went through the front windshield of the vehicle and then back again as the vehicle was spinning. As a result, Mr. Mohammed sustained devastating head and neck injuries.
[8] Immediately following the crash, first-aid was initiated by the officers who first observed the Honda. They were assisted by additional officers who arrived seconds after the crash occurred. Mr. Mohammed was bleeding profusely from a wound in his neck. An ambulance to Sunnybrook health sciences Centre was quickly arranged. Mr. Mohammed was transported to the hospital but, despite the efforts of emergency medical personnel, Mr. Mohammed succumbed to the injuries he sustained in the crash and was pronounced dead at 2:15 a.m.
[9] The autopsy determined that he had sustained numerous injuries that resulted in his death, including a 20 cm gaping laceration across the front and left side of his neck that cut into the left jugular vein.
[10] Mr. Sargeant was also transported to Sunnybrook health science Centre for treatment of chest injuries he sustained during the collision. He had numerous broken ribs and soft tissue injuries. While at the hospital, a sample of Mr. Sargeant's blood was taken. Approximately an hour after the collision, Mr. Sargent's blood-alcohol reading was 130 mg per 100 mL of blood. He had consumed no alcohol between the time of the accident and the sampling of his blood. A report authored by Vivienne Luk, a forensic toxicologist with the Centre of Forensic Sciences, opined that Mr. Sargeant's blood-alcohol level between 12:30 to 12:50 a.m. would have been between 131 and 155 mg of alcohol in 100 mL of blood.
[11] The vehicle that Mr. Sargeant was driving was not registered in his name, nor was it insured. Mr. Sargeant was not holding insurance nor did he have a valid driver's license at the time of the offence, as his license had been suspended indefinitely in 2012 due to MTO infractions and unpaid fines.
Circumstances of the Victim and the Impact Upon His Family
[12] Mr. Mohammed had turned 26 years of age just two weeks prior, on July 31. He and Mr. Sargeant were very close friends. Indeed, as Ms. Motyl so poignantly observes, had someone other than Mr. Sargeant been the driver that fateful night, she would have been seeking a victim impact statement from Mr. Sargeant. Instead, she is seeking his incarceration. During the evening that preceded the collision, August 15, Mr. Sargeant and Mr. Mohammed attended a celebration party together. Mr. Sargeant drove to and from that event.
[13] The impact upon Mr. Mohammed's immediate family has been devastating. His sister Nissa writes, in her victim impact statement: "our family is now broken. Growing up we had no parents, we were basically from one family's house to another, then we became teenagers and I took care of you until we grew to our adulthood. I did things a parent should, that's why I feel I not only lost a little brother but I lost a son. My heart aches thinking I'll never see your smile or you dance to your favourite Indian songs. I never knew pain like this existed, after we lost you I couldn't go back to work for over a month, I lost all hope in life."
[14] Mr. Mohammed's younger brother, Ashmir, in his victim impact statement, offers similar heart wrenching sentiments.
Circumstances of the Offender
[15] Mr. Sargeant, born June 6, 1992, was 23 years of age at the time of the offence. He is now 24. He was raised by his mother, Maicea Misha Sargeant, who was herself 23 years of age when Mr. Sargeant was born. In addition to his mother, Mr. Sargeant had the benefit of a strong relationship with his maternal grandmother and maternal uncle as a small child.
[16] From an early age, Mr. Sargeant took an active role in his church and his community. He continues to attend church, and is evidently known for his willingness to help people at his church.
[17] Mr. Sargeant developed an interest in automobiles as a toddler, and at age 17, while working part-time at an automotive parts store, he met Aleem Mohammed. Over time, they developed a trusting friendship that has been described as akin to brotherly love.
[18] Mr. Sargeant has no life partner or children of his own, and continues to reside with his mother and younger brother, aged 16.
[19] Mr. Sargeant's first summer job, at age 16, was with Toronto Police services, as part of the youth in policing initiative. He was assigned with the police traffic services safety patrol department, dealing with the proper installation of safety equipment, such as seat belts and child seats.
[20] While he used to drink socially with friends, Mr. Sargeant abstains from all forms of alcohol consumption as a result of the offence herein. This abstinence is confirmed by his mother. Mr. Sargeant acknowledges considerable mental distress as a result of his role in the death of his friend, and has sought psychological help from medical professionals as a result.
[21] He has grieved the loss of his friend through prayer, honouring memories of his friend, and hoping for forgiveness from his friend's family. He acknowledges that such forgiveness may, understandably, not be forthcoming.
[22] Mr. Sargeant has no criminal record before this event.
[23] Mr. Sargeant's mother, Maicea Misha Sargeant, describes her son as a kind, good-natured and empathetic person. She feels that Aaron will never forgive himself for the pain and suffering he has caused and for which he has accepted full responsibility.
[24] She states that although Aaron excelled in school as a youngster, he lost interest during high school and left to go to work.
[25] Ms. Sargeant describes her family as God-fearing people dedicated to the church and church community, in which her son plays an active role. With respect to the effects of this offence, Ms. Sargeant states: "Our entire family has been laid low, carrying the burden of remorse, every moment, of every day. We weep daily, for the loss of this young man."
[26] Mr. Sargeant's grandmother, Denise Sargeant, who helped raise her grandson and who enjoys a close relationship with him to this day, says that since the death of Mr. Mohammed, she has found her grandson be withdrawn. He appears sad and remorseful. Although he has always had an outgoing personality, now he has become more subdued. She describes her grandson as respectful, thoughtful and compassionate.
[27] Strong letters of support for Mr. Sargeant were also filed by his uncle, Sydney Dexter Sargeant and a neighbour, Yvonne Nixon-Deeble.
Positions of the Parties
A. Crown Position
[28] Both counsel recognize that this offence is one which warrants a significant penitentiary sentence. Ms. Motyl, on behalf of the Crown, submits that the appropriate sentence is one of 6 years, having regard for the two key factors of denunciation and deterrence. The Crown also seeks a 10 year driving prohibition, an order for a DNA sample, and a Criminal Code section 109 order against the possession of firearms.
[29] Crown Counsel relies on a number of aggravating factors:
Mr. Mohammed's death is a direct result of the actions and choices of Mr. Sargeant. His injuries were catastrophic, however death was not immediate: he was alive, conscious, and suffering for a period of time. Moreover, there were three other people in two other vehicles who were taken to hospital. While their physical injuries were fortunately not serious, they were no doubt traumatized by this incident. There is therefore a high degree of moral blameworthiness which attaches to Mr. Sargeant's behaviour.
Ms. Motyl urges that it is aggravating, in the circumstances of this case, that Mr. Sargeant had the benefit of good weather and clear surroundings. This collision happened on a clear summer night, on a dry and unobstructed road surface, in an intersection where the traffic lights were functioning normally.
Mr. Sargeant's blood-alcohol level was well in excess of the legal limit, and while it was not elevated to a level that was statutorily aggravating, it did approach that level.
Mr. Sargeant attended an event that evening where he must have known that alcohol would be served, but he chose to drive to that event, chose to consume alcohol to evident excess, and chose to leave that event in his car, with his friend in the passenger seat.
Mr. Sargeant, while not having a prior criminal record, does have a highway traffic record which contains convictions for offences similar to those he committed that night, notably: disobeying a red light on two prior occasions, once in 2012 and again in 2013, and speeding, in 2012.
[30] Ms. Motyl acknowledges a number of mitigating factors:
Mr. Sargeant was young at the time of this offence, 23 years of age. The potential for rehabilitation is great, and an important factor, although less significant, she submits, in cases involving impaired driving.
He does not have a prior criminal record.
The presentence report is positive and indicative of a great deal of remorse.
He has pled guilty and saved the family of the victim the trauma of reliving this event at trial, and experiencing the accompanying uncertainty. As well, his plea of guilty is a sincere expression of remorse which is deserving of recognition by the sentencing court.
B. Position of the Defence
[31] Mr. House advocates for a sentence of four years in penitentiary. He takes issue with the Crown's characterization of the environmental conditions as an aggravating factor. While one can in certain circumstances lay claim to some degree of mitigation in circumstances of inclement weather, there ought to be no corresponding escalation in what would otherwise be a fit sentence where the weather and road conditions are good.
[32] Mr. House further submits that the degree to which Mr. Sargeant's Highway Traffic Act record is viewed as aggravating ought to be minimal, as those offences are regulatory in nature and do not themselves attract custodial sentences.
[33] He further submits that while Mr. Sargeant accepts full responsibility for his actions, there is some degree of contributory negligence on the part of Mr. Mohammed, in that he did not wear his seat belt.
Caselaw
[34] There is agreement among counsel that sentences in this Province for cases of impaired driving causing death has seen an escalation in recent years, beginning with R. v. Ramage 2010 ONCA 488. Mr. Ramage's trial received some notoriety, owing at least in part to the fact he was a well-known professional hockey player.
[35] On December 15, 2003, after attending a reception at a golf course, Mr. Ramage left with the intent to drive to a meeting of the National Hockey League Alumni association. His friend, Keith Magnuson, also a former professional hockey player, was in the passenger seat.
[36] At about 5:00 p.m., with good weather, clear visibility and a dry road surface, Mr. Ramage's vehicle strayed into oncoming traffic and struck another vehicle. No one in that vehicle was hurt, however Mr. Magnuson was killed. Mr. Ramage suffered significant injuries to his lower body and a concussion. Approximately 2 ½ hours later, at 7:25 PM, a blood sample was taken at the hospital, and produced a blood-alcohol reading of .224. According to expert testimony, his blood-alcohol level at the time of the collision would have been between .229 and .274.
[37] In upholding the four year sentence imposed by the trial judge, the Court of Appeal for Ontario emphasized the need, in these cases, for general deterrence and denunciation (para. 80). The importance of those two factors has been confirmed by the Supreme Court of Canada in R. v. Lacasse 2015 SCC 64, [2015] S.C.J. No. 64 at para. 73, where the majority held: "While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx."
[38] Just over six months after releasing the Ramage decision, the Court of Appeal for Ontario released its reasons in R. v. Kummer 2011 ONCA 39. The facts were horrific. Mr. Kummer, whose blood-alcohol level was more than twice the legal limit, drove his vehicle into the side of a pickup truck driven by Mr. Jason Berube. Mr. Berube was returning from a London Knights hockey game with his son, Mason, and family friend David Tinus, both 12 years old. Both vehicles caught fire. Mr. Berube suffered two collapsed lungs, a shattered hip, a broken femur, several cracked and broken ribs and a multitude of cuts, scrapes and bruises. Notwithstanding his injuries, he managed to extricate himself from the vehicle, and tried to rescue the two boys, still trapped in his burning truck, before he was pulled away by onlookers. They succumbed to the fire, as did one of Mr. Kummer's passengers, Randy Psaila.
[39] The Court of Appeal upheld the sentence of eight years imposed by the sentencing judge after Mr. Kummer's plea of guilty. At paragraph 15, the Court of Appeal noted: "As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this Court upheld sentences of four and five years for such offences in R. v. Ramage and R. v. Junkert, 2010 ONCA 549."
[40] The Court of Appeal declined to recognize a "cap" of 4 to 5 years in such cases, noting, inter alia, the statutory maximum sentence, the catastrophic results of the actions of Mr. Kummer, and noting as well the significance of Mr. Kummer's driving record.
[41] Sentences that have been sanctioned by the Court of Appeal for Ontario in recent years, therefore, for offences of impaired driving causing death, have ranged from four to eight years, although the Court has cautioned sentencing courts, in Kummer, supra, at para. 21, against the application of a formulaic "range". Each case must be determined on its own particular facts and circumstances.
[42] In R. v. Muzzo 2016 ONSC 2068, Justice Fuerst noted, at paragraph 69: "…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. For this reason, sentencing decisions that predate Ramage, Junkert, and Kummer have diminished value as guidelines."
[43] Mr. House submits that reliance on the principle of general deterrence in such cases is misplaced. He relies for this proposition on the decision of the Québec Court of Appeal in R. v. Pare [2011] QCCA 2047 (leave to appeal to SCC dismissed 2012-08-09) at paragraphs 51-62, wherein the effectiveness of the very principle of general deterrence is called into question. In accordance with the discussion in that case, Mr. House submits that the likelihood of detection is the best method of deterrence, not higher sentences. There is support for that position in the Quebec Court of Appeal's decision.
[44] Affidavit evidence filed in Muzzo, summarized at paragraph 33 of the decision, may arguably offer some support for that proposition. Justice Fuerst notes the affidavit evidence indicates no significant downward (or upward) trend in arrests for impaired driving in York region in the years 2011 to 2015, which I note are the years that follow the Ramage and Junkert decisions of the Court of Appeal. Ramage was of course a decision which originated in that region. Between 2014 and 2015 arrests rose by more than 16% (979 to 1140).
[45] The potential efficacy of general deterrence in these cases is perhaps complicated by the fact that it is highly unlikely that those who drive with impaired ability deliberately set out to cause mayhem or death. To the contrary, it is likely that those drivers feel that is simply not going to happen. Some may feel sufficient confidence in their driving abilities, even while drunk, that they have no fear of such consequences. But as my colleague L. Marshall, J. of this Court has often commented to persons who appeared before her for sentence in routine cases of impaired driving, it is simply "dumb luck" that stands between them and drivers who effectively have blood on their hands. She makes a good point. It is the offence of impaired driving simpliciter which must be deterred, and a strong message sent which warns potential impaired drivers of the consequences they will undoubtedly face in the event their actions cause harm to others. As noted by Justice Fuerst in Muzzo, at paragraph 76: "For as long as Mr. Muzzo has been alive, courts have warned about the consequences of impaired driving. Yet the message escaped him. It is important that it does not escape others."
[46] Therefore, as I am directed to do by the authorities above, I have regard for the importance in this case of general deterrence. Furthermore, it is clear that those cases which result in bodily harm or death must be denounced in the strongest terms.
[47] I have considered the submission of defence counsel with respect to what he refers to as the contributory negligence of Mr. Mohammed in neglecting to wear his seatbelt. Mr. House refers to the reduction in insurance payouts in cases where an individual has neglected to wear a seatbelt as support for this submission.
[48] I am unaware of any criminal law equivalent to this principle of civil liability. I am unable to accede to the suggestion that Mr. Sargeant's responsibility for his actions is somehow lessened by the supposed negligence of his passenger. Nothing Mr. Mohammed did could be said to have contributed to the cause of the collision, nor to Mr. Sargeant's decision(s) to consume alcohol to excess and then to drive his vehicle, more particularly to drive in the fashion he chose to drive while under the influence of alcohol. Mr. Sargeant alone must bear the consequences of his actions and his poor decisions that night.
[49] I have throughout this decision purposefully referred to this tragedy as a collision, not as an "accident". As noted by my colleague Speyer, J. earlier this year in R. v. Habte (unreported): "An accident is something that cannot be prevented. This tragedy was entirely preventable and was caused solely by Mr. Habte choosing to drive while his ability to do so was impaired." Those comments apply with equal force to this case.
Conclusion
[50] There are a number of aggravating features in this case. They include the following:
Mr. Sargeant chose to drink and then drive. He went to a party where he knew or ought to have known that he would consume alcohol. Instead of taking some other mode of transportation, he chose to drive. I find it unthinkable that a young man would feel this to be an acceptable decision to make where the safe options available in a city the size of Toronto are so numerous. His actions thereafter caused tragic consequences for one person, and significant consequences for others. There is therefore a high level of moral blameworthiness which attaches to his actions and decisions that night.
Mr. Sergeant drove his vehicle at high speed as he approached the traffic light, and ultimately completely ignored the fact the light was red.
Mr. Sergeant's blood-alcohol level, while not in the statutorily aggravating range, was high.
Mr. Sargeant has a prior record for driving infractions, including two for running a red light and one for speeding, behaviours which mirror his driving here. As noted by Justice Fuerst in Muzzo, this is an indicator of an irresponsible attitude toward the privilege of driving, and ought to have deterred him from further like behaviour (para. 71).
[51] There are also a number of mitigating factors, which include:
Mr. Sargeant pled guilty, and signalled his intent to do so at an early stage, even before he was aware whether the blood results showed an increased blood-alcohol level.
Mr. Sargeant has no previous criminal record. This will therefore be his first jail sentence.
Mr. Sargeant is still a very young man, just 23 years of age. He is previously of good character, and his potential for rehabilitation is very high.
Mr. Sargeant has expressed sincere remorse. It is clear from his own actions, and from letters filed on his behalf by close family members and others, that he has accepted full responsibility for his actions and suffers deeply as a result of the pain and suffering he has caused.
Mr. Sargeant has strong support from the members of his family and community. They have filled the public gallery of the courtroom at each stage of the sentence proceeding and made clear their support for this young man.
[52] In my view, the mitigating factors in this case are significant. However, if the appropriate sentence on these facts is, as it is conceded to be, one of 4-6 years, I do not feel that this matter falls at the minimum end of that range. Two factors in my view take it out of that low end: first of all, this was not a completely unintentional act. There was an element of deliberation in deciding to take his car to the party, to consume alcohol to excess while at the party, and then to drive after having done so. Second, his driving record, as well as his uninsured, unlicensed status denotes a disregard not just for the regulations that govern all drivers in this province, but for his own safety and that of the public.
[53] In addition to the pain and suffering caused to the victim and his family, as well as to Mr. Sargeant and his family and friends, there is one other group that in my view deserves mention in these reasons. The first responders and their families also suffer the consequences of these collisions. Police officers, fire personnel, and ambulance crews alike face the aftermath of these crashes, and one can only imagine the difficulty of leaving behind the images encountered at these scenes. Leaving one's work at the office would, I suspect, be considerably easier said than done in cases such as this one. It may not be rightfully considered an aggravating factor on sentence, and I do not do so in this case, but it is a fact that must be acknowledged, and cannot be explained away by asserting that they are simply doing their jobs.
[54] Therefore, the sentence of this Court, having regard for all of the above factors, is a sentence of four years and six months. In addition, he will be prohibited from driving for a period of 8 years, having regard not just for the circumstances of this case, but as well for his driving record and his status as an uninsured, unlicensed driver at the time of this offence.
[55] In addition, the requested ancillary orders for a DNA sample and a section 109 Order will be granted.
Released: November 24, 2016
Signed: "Justice F. Crewe"