Court File and Parties

Ontario Court of Justice

Date: 2017-04-04

Court File No.: Halton 16-1210

Between:

Her Majesty the Queen

— and —

Brian Lund

Before: Justice D.A. Harris

Heard on: February 16, 2017

Reasons for Sentence released on: April 4, 2017

Counsel

Arish Khoorshed — counsel for the Crown

Kenneth Byers — counsel for the defendant Brian Lund

Reasons for Sentence

HARRIS J.:

Introduction

[1] Brian Lund pled guilty to dangerous driving.

[2] Crown counsel elected to proceed summarily with respect to the charge.

[3] Mr. Lund is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a conditional sentence of imprisonment for four months.

[5] Counsel for Mr. Lund suggested that I impose a conditional discharge.

[6] Both counsel agreed that I should prohibit Mr. Lund from driving for two years and I did that at the conclusion of their submissions.

[7] I find that a conditional discharge is the appropriate sentence.

[8] My reasons for this are set out under the following headings:

1. The law regarding conditional discharges
2. The law regarding conditional sentences of imprisonment
3. The fundamental purpose and principles of sentencing
4. The facts underlying the offence
5. The impact on the victims
6. The background of Mr. Lund
7. Analysis

Conditional Discharge

[9] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[10] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant Mr. Lund a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.

[11] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

1. Discharges are not limited to technical or trivial violations;

2. Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and

3. While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[12] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435 per. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

Conditional Sentence of Imprisonment

[13] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[14] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[15] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[16] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

(1) the offender must be convicted of an offence that is not specifically excluded by the legislation;

(2) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(3) the court must impose a term of imprisonment of less than two years;

(4) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(5) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[17] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[18] In Mr. Lund's case, the first four prerequisite criteria have been satisfied.

[19] His offence is not excluded pursuant to section 742.1.

[20] It is not punishable by a minimum term of imprisonment.

[21] Crown counsel asked for a sentence of imprisonment for much less than two years.

[22] Finally, I find that Mr. Lund serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community.

[23] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[24] I must also consider whether, after taking into account the fundamental purpose and principles of sentencing, I am satisfied that a period of imprisonment would have been the appropriate sentence.

Fundamental Purpose and Principles of Sentencing

[25] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[26] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[27] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[28] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[29] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[30] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[31] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[32] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[33] Section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[34] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[35] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[36] Counsel for Mr. Lund also argued that parity of sentences is a factor to be considered by me in this case. I should take into account the sentences I imposed on the three young men who pled guilty to the same offence in the Youth Criminal Justice Court.

[37] Crown counsel argued that this is not a relevant factor here. He relied upon the comments by the Ontario Court of Appeal in R. v. Wobbes where Epstein, J.A. wrote:

72 The basis of the parity argument is the fact that each of the co-accused received a non-custodial sentence of 18 months.

73 The primary difficulty the appellant faces in relying on the parity argument is that the co-accused were young offenders sentenced under the regime established under the Youth Criminal Justice Act S.C. 2002, c. 1 ("YCJA") -- a regime completely different from that established under the Criminal Code. Most notably the sentencing principles of general deterrence found in s. 718(1)(a) of the Criminal Code are not applicable under the YCJA. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences.

74 In addition to the impact of the operation of these two distinct regimes on the disparity between the sentences of the appellant and his co-accused, another factor that explains the difference between the sentences is the fact that the co-accused pled guilty and they were therefore entitled to rely upon that important mitigating factor.

[38] I also note the comments of Justice Vaillancourt of the Ontario Court of Justice in R. v. Woodley where after referring to R. v. Wobbes, he wrote:

59 Mr. DeMarco plaintively pointed out that Mr. Woodley committed the initial offence a mere twenty-nine days after his eighteenth birthday and was involved in the last offence thirty-four days after his eighteenth birthday.

60 Regrettably, once an individual crosses the line of adulthood, the rules and procedures that apply to young offenders cease to be available. Nevertheless, I take Mr. DeMarco's point that but for a few days, his client would have benefited from the advantages of a young offender's sentence.

61 However, it is to be remembered that Mr. Woodley was a very young adult at the time of the commission of these offences.

[39] Mr. Lund was also a very young man when he committed this offence, which I note was his first offence.

[40] In R. v. Priest, Rosenberg J.A. wrote:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

[41] The Court of Appeal repeated this, with further reference to youthful offenders in R. v. Kutsukake, stating:

the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation. A sentence imposed on a youthful first offender should constitute the minimum necessary sanction that is adequate, community-based dispositions must be considered, and more serious forms of punishment imposed only where necessary.

[42] Before applying these principles, I must take into account the facts underlying the offence, the impact on the victim and the background of Mr. Lund.

The Offence

[43] On Sunday April 10, 2016, Mr. Lund was 18 years old having celebrated his 18th birthday only six days earlier.

[44] That day, he met up with a number of friends behind a grocery store in Milton. All of these friends were under 18 years of age. J.G. was driving a 2011 Toyota Scion. T.H. was driving a 2006 Dodge Charger. J.D. was a passenger in the Charger. T.G. was driving a 2014 Kawasaki motorcycle. F.A. was driving a 2007 Nissan 350Z and D.S. was a passenger in that vehicle. Mr. Lund was driving his mother's 2014 Chevrolet Equinox.

[45] The meeting was prearranged for the purpose of them driving around. They agreed to drive together but did not have a particular destination. It was agreed that they would follow whoever was leading. As they drove, they kept their vehicles close to one another. The order of the vehicles changed on occasion. As one sped up, the others sped up to keep together.

[46] An independent witness observed them at one point. They were also caught on video by two surveillance cameras. Speed analysis based on one of these cameras showed them travelling well in excess of the speed limit. It was admitted that all of the drivers knew that this was the case. They also knew that as any one of them sped up, the others would also speed up in order to keep pace.

[47] This all ended when F.A. lost control of his vehicle and struck a light pole. Both he and his passenger, D.S. were killed.

[48] T.G., J.G. and T.H. all pled guilty to dangerous driving before me in Youth Criminal Justice Court. I was presented with a joint submission and sentenced all of them to probation for two years. In addition, I prohibited each of them from driving for two years.

[49] T.G. was less than one month away from his 18th birthday on the day of the offence. J.G. was slightly more than two months shy of his 18th birthday. T.H. had 6 ½ months to go before his 18th birthday.

Victim Impact

[50] I must stress the fact that Crown counsel very specifically chose not to proceed with charges of dangerous driving causing death. The charge was simply dangerous driving.

[51] There was no admission that the dangerous driving on the part of Mr. Lund caused the deaths of F.A. and D.S.

[52] Accordingly, I cannot impose a more serious sentence based upon these consequences.

[53] The families of those two young men declined to file Victim Impact Statements. They were present in Youth Court when I dealt with the other young men. They did not attend when Mr. Lund pled guilty.

Background of Mr. Lund

[54] Andrew Lund is 19 years old as of today.

[55] He has no previous criminal record.

[56] He has completed his schooling and is working full time as a fork-lift operator.

[57] The events of April 10, 2016 were traumatic for him too. Both deceased were his friends.

Analysis

[58] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Lund and yet, at the same time, one that is responsive to his unique circumstances. In doing this, I must consider both the aggravating factors and the mitigating factors.

[59] The aggravating circumstances can be found in the facts surrounding the offence.

[60] This was a planned and deliberate crime. It continued for an extended period of time. These young men put themselves and other members of the community at risk when they set out on this joint venture. Two of them died.

[61] There are a number of mitigating factors.

[62] Mr. Lund pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for anyone from the families of the deceased young men to testify.

[63] Mr. Lund has expressed his remorse repeatedly since being charged.

[64] He appears to fully appreciate the impact that this had on the families of his deceased friends.

[65] He had no prior criminal record.

[66] He is still very young.

[67] There is no suggestion of a problem with either drugs or alcohol.

[68] He has strong support from his family and friends.

[69] All of these factors bode well for his future rehabilitation.

[70] In the circumstances I am satisfied that it would not be appropriate to send Mr. Lund to jail. A conditional sentence of imprisonment is also not appropriate.

[71] The issue before me is whether to suspend sentence or to grant Mr. Lund a conditional discharge.

[72] Counsel for Mr. Lund has argued that a conditional discharge for an adult carries just as much stigma, if not more, than probation pursuant to the Youth Criminal Justice Act. Neither finding results in a conviction being registered. However, the records retention period is longer for the adult discharge and the victim fine surcharge provisions apply.

[73] Counsel stressed the fact that Mr. Lund was only six months older than the youngest member of the group and only six weeks older than the one closest in age to Mr. Lund.

[74] I read R. v. Wobbes, supra as saying that an adult is not entitled to parity with others who have been dealt with in the Youth Criminal Justice Court. It does not however say that a judge cannot consider parity as a factor.

[75] I note also that this case is different from R. v. Wobbes, supra in that general deterrence is not the predominant principle of sentencing here. Specific deterrence and rehabilitation are. Further, Mr. Lund pled guilty, just like the young offenders did. Finally, there was no suggestion that Mr. Lund was any more (or less) culpable than the others in what happened.

[76] After considering all of the above, I am satisfied that a conditional discharge is in Mr. Lund's best interest.

[77] I am also satisfied that, if I include the following conditions, it would not be contrary to the public interest.

[78] I will include a community service order. This will allow Mr. Lund an opportunity to give something back to the community. This provides a degree of restorative justice to the sentence. It also provides a further punitive component to the sentence, thereby contributing to denunciation and deterrence.

[79] I am also imposing a curfew during the first six months of the order. This too provides a further punitive component to the sentence, thereby contributing to denunciation and deterrence.

[80] Finally, I note that I have already prohibited Mr. Lund from driving for two years. This also contributes to denunciation and deterrence.

Sentence

[81] I sentence Mr. Lund as follows.

[82] He is granted a conditional discharge with a probation order to run for two years.

[83] The terms of the probation will require that Mr. Lund:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. 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 of employment or occupation;

4. report in person to a probation officer immediately and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. For the first six months of this order, he will remain in his residence or on the property of his residence daily between the hours of 11 p.m. and 5 a.m. except:

   (a) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),

   (b) he must present written justification to the probation officer within 72 hours of any such absence during his curfew hours;

   (c) for going directly to and from or being at school, or employment,

   (d) he will confirm his schedule in advance with his probation officer setting out the times for these activities

   (e) with the prior written approval of the probation officer. The written permission of the probation officer is to be carried with him during these times.

7. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Raed Anani, Lina Noufal, Rania Anani, Rima Anani, Manar Anani, Adam Anani, or Stefanie Bourque.

8. not be within 20 metres of any place where he knows any of them to live, work, go to school, frequent, or any place he knows them to be,

9. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer.

10. perform 75 hours of community service work. This work is to commence by June 1, 2017 and shall be completed at a rate of not less than 5 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by / within 18 months.

11. not operate or be in the driver's seat of a motor vehicle unless he is the holder of a valid Ontario driver's licence.

[84] I have already prohibited Mr. Lund from driving for two years.

[85] I give Mr. Lund four months to pay the victim fine surcharge.

Released: April 4, 2017

Signed: Justice D.A. Harris