Court Information

Ontario Court of Justice

Date: February 3, 2017

Court File No.: Municipality of Leamington 15-8035

Parties

Between:

Her Majesty the Queen

— And —

Leslie Grosse

Before: Justice of the Peace H. DeBacker

Submissions on Sentence Heard: February 2, 2017

Reasons for Sentence Released: February 3, 2017

Counsel

S. Kerwin — Counsel for the Prosecution

J. Dobrowolski — Counsel for the Defendant

JUSTICE OF THE PEACE DEBACKER:

Charges

[1] Leslie Grosse has been found guilty of careless driving and has plead guilty to drive while licence suspended contrary to Sections 130 and 53(1) respectively of the Highway Traffic Act on August 18, 2016.

Facts

[2] Leslie Grosse drove a van with six passengers from their place of work on the 29th day of April 2015 on Highway 3 in Leamington, Ontario, when a bee entered the driver's window. This was a very unique circumstance, the bee entering the driver's window. Unfortunately, Mr. Grosse allowed the bee to distract his driving beyond the initial reaction to it and for far too long. Mr. Grosse continued to focus all of his attention upon the bee rather than driving, even when he steered off the roadway and while two passengers called out to him to pay attention to driving. The passenger tires entered the gravel. There was a driving overcorrection. Then another overcorrection back into the gravel, then yet a third overcorrection, which caused weight transfer within the van, which caused the van to roll over a number of times. Most tragically, two male passengers were ejected and died of their injuries.

[3] The Court has received two victim impact statements entered as exhibits during this sentencing hearing. One statement from the aging parents of Wayne Babcock who died of his injuries. The parents experience profound loss of their son. They described Wayne as a hard worker who helped them with many things. They are emotionally heart-broken with grief.

[4] Lydia Wilson was a passenger in the van. Ms. Wilson was seriously injured. She received a concussion, fractured skull, has lost vision in her right eye, lost hearing in her right ear and injured her hip. Ms. Wilson still experiences physical pain as a consequence and feels just as broken emotionally inside.

Mitigating Factors

[5] Mr. Grosse stopped at the stop sign for Highway 3 at Morse Road before he entered the arterial highway. There was no evidence of speeding. Alcohol or drugs were not involved or alleged to have played a role. Leslie Grosse will be 60 years old in three days. He has children and grandchildren. The Court heard from two of his adult children who indicated he has been impacted greatly by this event. Mr. Grosse is coping with his role in the loss of life and injury caused. It has been submitted by defence that Mr. Grosse will never drive again. The driving conduct did not constitute a marked departure or dangerous driving under the Criminal Code.

Aggravating Factors

[6] The driving conduct fell below the standard of care owing in the circumstances. Mr. Grosse was responsible for safe transport of six passengers and himself. Mr. Grosse's lack of due care and attention resulted in loss of life of two persons and physical and emotional injuries suffered by the passengers and the families of those involved. In addition, not only was Mr. Grosse a suspended driver, he was never licenced.

Legal Analysis

[7] It is important to emphasize it is the driving conduct itself, careless driving, that Mr. Grosse is being sentenced for. The consequences, two fatalities and injuries are properly considered at sentencing. R. v. Martinez, [1996] O.J. No. 544 provides authority for same. However, it is not the consequences that is the focus of the sentence rather, it is the driving conduct itself, lack of due care and attention, along with other mitigating and aggravating factors being taken into consideration. The purpose of sentence is to address general and specific deterrence. R. v. Cotton Felts Ltd., [1982] 2 C.C.C. (3rd)

[8] Penalty for careless driving, Section 130 of the Highway Traffic Act reads:

"… on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years."

Case Law's Common Thread of Driving Sanctions

[9] In R. v. Martinez, (1996) O.J. No. 544, the Ontario Court of Appeal allowed a sentence appeal and reduced period of incarceration from 90 days to 20 days. The Ontario Court of Appeal upheld the one year period of probation. Mr. Martinez drove past a stop sign into an intersection. The driver of the oncoming vehicle was fatally injured. The Ontario Court of Appeal confirmed it was correct for the trial judge to emphasize the quality of the driving and also take into account the driving caused a collision which caused a death although without intentional or wilful conduct.

[10] In R. v. Laycock, [1996] O.J. No. 3846, Ms. Laycock was sentenced to 60 days incarceration and one year licence suspension after having fatally struck a cyclist. The appeal court found Ms. Laycock was genuinely remorseful and she did not need specific deterrence. However, the appeal court upheld the period of incarceration. It was held that incarceration was within the appropriate penalty range. Given the circumstances, there was no error in principle.

[11] In R. v. Messercola, [2005] O.J. No. 126, most tragically, the accused struck and fatally injured two persons who were lawfully crossing an intersection while he attempted to make a left turn. Mr. Messercola was a 48 year old father of two with no record. He was remorseful and plead guilty to careless driving. He was sentenced to 18 months' probation wherein his driving was limited primarily for employment or medical reasons and he received a $1,000 fine. Justice Wright stated:

"Clearly an appropriate sentence must be responsive to and balance the principles of general and specific deterrence, protection of the public and (the offender's) rehabilitation."

[12] R. v. Wilson, [2015] O.J. No. 4960 was in the defence brief. This was an egregious fail to remain/fail to report an accident along with a careless driving conviction. Ms. Wilson struck a cyclist who was clothed in dark clothing with no reflective gear or lights on a dark, rainy night. These were mitigating factors in the driving prior to the event. What was egregious was Ms. Wilson failed to remain and report the accident and went on her way to the casino. As the victim lay in the ditch on cold, rainy night he succumbed to his injuries. Incarceration was not an option for fail to report. She was given probation, community service and driving prohibition.

[13] R. v. Pellerin, [2006] O.J. No. 5184, I found this case to be most insightful. Mr. Pellerin was driving too closely behind a truck. When Mr. Pellerin attempted to make a lane change he was unable to see a cyclist in time to avoid the collision which most tragically, resulted in the cyclist's death. Mr. Pellerin was found guilty under Section 130 of the Highway Traffic Act. Mr. Pellerin was only 25 years old. He had a lengthy driving record with convictions for speeding and fail to leave the scene of an accident. The Crown sought incarceration. Mr. Pellerin was sentenced to $1,000 fine, plus 24 month licence suspension, plus 24 months' probation, plus he was ordered to complete a course in driver retraining, plus he was ordered to complete 120 hours of community service. On appeal both the conviction and sentence were upheld.

[14] Mr. Pellerin was sentenced to the maximum penalties provided for by law with respect to fine, licence suspension and probation. The sentencing Justice clearly considered Mr. Pellerin's driving record and the tragic consequences of the event. The sentencing Justice chose to impose community service as an alternative to and instead of incarceration. The significant maximum, non-custodial driving sanctions, the severity of the totality of terms of sentencing upon a 25 year old, was found to adequately address specific and general deterrence along with protection of the public and the offender's rehabilitation.

[15] Counsel have provided, and I have reviewed and considered all additional cases. Fines along with driving sanctions were imposed for convictions of careless driving where fatalities occurred. In R. v. Stupar, [2015] O.J. No. 3308 the sentence was a $2,000 fine along with 24 month driving prohibition and 200 hours of community service. R v Taylor, December 2016 from Toronto unreported, article from Globe and Mail, Ms. Taylor was fined $1,000, given six months' probation and six months driving restrictions. In R. v. Dey, [2010] O.J. No. 1731 sentence for careless driving causing injuries and a death and likewise R. v. Grise, [1999] O.J. No. 5352 sentence was $1,000 fine and one year driver's licence suspension.

[16] The common thread within the case law is that sentencing is to address the driving conduct itself. The tragic outcome of fatality is not the event being sentenced. Factors to be considered along with the circumstances of the offender, mitigating and aggravating factors, specific and general deterrence and a response to adequately address denunciation, safety of the public and the offender's rehabilitation. Regularly, driving sanctions and licence suspensions follow as an additional consequence along with a fine, and in the vast majority of cases, are in addition, a significant restriction of real impact upon defendants. Driving sanctions and licence suspensions are a common thread that appropriately form part of the totality of sentence imposed in similar cases.

Conclusion

[17] The sentence must have a real impact upon the defendant in order to be both effective and adequately address specific and general deterrence given the most tragic aggravating factor of two fatalities and injuries caused by the driving without due care and attention. Defence counsel seek that custodial sentence not be imposed and that deference be given to the fact that the bee entering the driver's window was a completely unforeseen circumstance. It was Mr. Grosse's reaction to the bee that went on for far too long that was careless driving. He was not driving aggressively that caused the event. I have considered the mitigating factors and case law. This was a non-intentional act. It was not dangerous driving under the Criminal Code rather careless driving under the Highway Traffic Act. Alcohol or drugs were not alleged to have played a role. There was no evidence of speeding. Mr. Grosse's driving was otherwise normal up until when the bee entered the vehicle and he then kept too much attention upon the bee rather than the road and driving.

[18] What was different and unusual regarding Mr. Grosse's personal circumstances was that one 1) he was never licenced and 2) he was a suspended driver. Because he had never been a person who has ever held a driver's licence, he had no reason or plausible explanation to be driving at all. That was an aggravating factor. Mr. Grosse gave evidence himself at the trial that as a young man he failed a driving test and never did retest to attain a driver's licence. If he had been a licenced individual he may have had the experience and knowhow to bring his attention back to driving away from the distraction. Defence submit a fine, probation and licence suspension would be an appropriate sentence. I find because he was suspended is a factor that is evidence that any fine or driving penalty is of no consequence to him. He has no reason or motive to pay a fine. There is no licence to keep or put back into good standing. Any fine or driving sanction imposed upon Mr. Grosse would have the same effect as no penalty at all. This is not a matter like R. v. Pellerin, [2006] O.J. No. 5184 where the defendant, a youthful 25-year-old, would have motive to comply with terms of sentence, fine, licence suspension, probation, driver retraining and community service in lieu of jail and get his licence back eventually and move forward in life. Or a matter similar to R. v. Grise, [1999] O.J. No. 5352 where the defendant was a professional driver and father who supported his family and number of dependants by being a commercial truck driver. The one year licence suspension for Mr. Grise was a very real and impactful consequence upon him. Unlike in fact all case laws found and reviewed, I find Mr. Grosse stands apart because he has no motivation to comply with payment of a fine or community service in lieu of jail. Because not only is Mr. Grosse a never licenced person, he is in addition status suspended, that factor this court finds demonstrates an unwillingness on his part to deal with or address any non-custodial sanctions. This as well, is a very unique circumstance.

[19] I find Mr. Grosse never being licenced and simultaneously being under suspension is a very aggravating circumstance that puts this matter into another unique sphere unlike the case laws presented. There is no other consequence that would adequately address the circumstances of this defendant, Leslie Grosse, and the entirety of the circumstances of the careless driving for which he has been convicted other than incarceration.

[20] Leslie Grosse, stand up please sir, I sentence you to 30 days in jail for careless driving. In addition, any ability to be licenced is hereby being suspended for two years. I will accept the joint submission for the minimum fine of $1,000 for the drive while licence suspended conviction.

Released: February 3, 2017

Signed: Justice of the Peace H. DeBacker