Court Information

Ontario Court of Justice

Date: September 20, 2018

Court File No.: Ottawa 16-A12686

Between:

Her Majesty the Queen

— AND —

Justin Stewart

Before: Justice P.K. Doody

Heard on: February 8, May 2, and June 15, 2018

Reasons for Sentence released on: September 20, 2018

Counsel

Bruce Lee-Shanok — counsel for the Crown

Robert McGowan — counsel for the defendant

DOODY J.:

Overview

[1] The defendant pleaded guilty to one count of dangerous driving causing bodily harm, one count of impaired driving causing bodily harm, one count of failing to stop and give his name and address and assistance with intent to avoid civil or criminal liability after having been involved in an accident knowing that bodily harm had been caused, and one count of breach of a recognizance of bail which required him to remain in his residence except while accompanied by his surety. All offences took place on September 25, 2016.

[2] Crown counsel seeks 5 years in custody to be followed by a 5 year driving prohibition. Defence counsel submits that a custodial sentence of 18 months to 2 years, followed by period of probation, would be appropriate. He agrees that a 5 year driving prohibition would not be unreasonable.

[3] Both counsel agree, as is clear from the facts, that these are very serious offences which have had tragic consequences for at least one of the two victims, who had both been friends of the defendant and were passengers in his car. That man's life will never be the same again. My decision about the defendant's sentence will not put him back as he was before that day or make his life better. But the impact that the defendant's crimes had on both victims plays an important part in my decision.

Circumstances of Offence

[4] On September 25, 2016, at 4:36 p.m., the defendant was driving along Manotick Station Road, a flat straight rural road with farms on either side. It was a sunny clear day. Brent Bishop was in the front passenger seat, and Maxwell Fiegan was in the rear seat behind the defendant. The speed limit was 80 kilometers per hour. The car veered to the side and left the road, heading into the ditch at such a speed that it rolled over and came to rest in the field back on its wheels.

[5] When the police arrived at 4:44 p.m., the defendant was gone. He got out of the car and ran. Mr. Bishop and Mr. Fiegan were trapped inside and had to be extricated by removing the roof, passenger door and the back of the driver's seat. An open bottle of whisky was found on the front passenger floor.

[6] A search was conducted and the defendant was found 30 minutes later, hiding behind a vehicle a half hour walk from the scene. He was arrested and gave two samples of breath at 6:42 and 7:04, resulting in analyses of 150 and 140 mg of alcohol in 100 millilitres of blood. A toxicologist gave his opinion that his blood alcohol level between 4:05 p.m. and 4:35 p.m. would have been between 145 and 200 mg of alcohol in 100 millilitres of blood.

[7] Maxwell Fiegan, who is now 24 years old, suffered significant injuries. His spinal cord was severed. He also suffered rib fractures, a comminuted fracture of the left scapula, and multiple orbital and facial bone fractures. He is a paraplegic, confined to a wheelchair. He feels nothing from his mid-chest down.

[8] A victim impact statement was submitted by Mr. Fiegan's mother. She describes in detail the impact his injuries have had on her son. His life has been permanently impacted. He has had a series of major surgeries. He undergoes regular physiotherapy and occupational therapy. He has a limited social life because of the limitations on his activities and because of his own reduced sense of self-worth. His future employability is severely limited.

[9] Mr. Fiegan's family has also been significantly affected. His mother devotes innumerable hours to dealing with her son's needs, both emotional and physical. This is likely to continue into the foreseeable future. His sister and step-father have been or are about to undergo counselling to deal with the emotional issues related to Mr. Fiegan's injuries and the effect they have had on the family.

[10] Mr. Bishop was evacuated by helicopter. His spleen was removed. He declined to provide a victim impact statement. He has not suffered catastrophic injuries. His injuries, however, were very serious.

Circumstances of Offender

[11] Mr. Stewart is 28 years old. He was convicted of impaired driving in 2009 and of failing to comply with a recognizance in 2014.

[12] A pre-sentence report was prepared. I am grateful to its author for her very thorough report.

[13] Mr. Stewart was raised by his mother after his parents separated when he was 2 years old. He had sporadic contact with his father until two years ago, when contact came to an end. He left his mother's home at the age of 17 to move in with his girlfriend with whom he had a son. That relationship has come to an end. He and his ex-partner share custody of their son. Mr. Stewart lived for approximately a year with his aunt, with whom he is still in contact.

[14] Mr. Stewart began his relationship with his current partner in 2015. They live together with his partner's two children from a prior relationship. He has a positive relationship with his partner.

[15] Mr. Stewart graduated from high school with his peers in 2010. He suffers from Attention Deficit Hyperactivity Disorder and benefited from an Individualized Education Plan to support him in school.

[16] Mr. Stewart has worked in the construction industry for many years. He has been with his current employer since November 2016. His employer confirms that he is a reliable worker and told the pre-sentence report's author that he has a potential for ownership of the company in the future.

[17] Mr. Stewart began to drink at the age of 15. Once he turned 19, his consumption increased significantly and he began to drink daily. His mother confirmed that drinking remained an issue for the defendant until this offence. His mother, father, and grandparents have all had alcohol issues.

[18] After the offence, Mr. Stewart recognized that he had a serious problem with alcohol. He completed substance abuse counselling. He told the author of the pre-sentence report that he has been sober since the offence, a period of approximately 18 months at the time the report was prepared. His employer confirmed that while Mr. Stewart's drinking was a problem before the offence, he has been sober since then. He had seen a noticeable increase in Mr. Stewart's work quality and punctuality since he committed the offence.

[19] Mr. Stewart's alcohol counsellor told the report's author that Mr. Stewart was open, forthcoming, and engaged while in counselling. He thought that he could benefit from more counselling to assess his current situation, address relapse prevention and ensure he has access to adequate support for his recovery.

[20] Mr. Stewart's present partner also had issues with alcohol. She told the author of the pre-sentence report that after the offence she and Mr. Stewart both stopped drinking and have remained sober. She also said that Mr. Stewart had distanced himself from the friends with whom he had associated before the offence and had shifted his focus to his family.

[21] Mr. Stewart told the report's author that he is very remorseful and that he is focused on remaining sober to ensure that nothing like this happens again. His aunt confirmed that Mr. Stewart continues to struggle with remorse and guilt and that he has made tremendous changes since the offence.

Analysis

[22] The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[23] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[24] Sentencing is a highly individualized process. As the Supreme Court of Canada has recently held, it requires a delicate balancing of the various sentencing principles and objectives set out above. (R. v. Suter, 2018 SCC 34 at paragraph 4)

[25] The primary objective in cases involving impaired driving is denunciation and deterrence. Nevertheless, the potential range of sentences is quite high. Moldaver J. wrote on behalf of the majority of the Supreme Court at paragraph 27 of Suter, a case dealing with the appropriate sentence for refusing to provide a breath sample knowing that he had caused an accident resulting in death (an offence which the Court held was to be treated the same for sentencing purposes as impaired driving causing death and driving "over 80" causing death):

The sentencing range for these offences has been quite broad -- low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years -- because courts have recognized that they cover a broad spectrum of offenders and circumstances: see R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para. 40; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641, at para. 21; Lacasse 2015 SCC 64, at para. 66. An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.

[26] I have reviewed a number of cases of drinking and driving resulting in fatalities or serious bodily harm in Ontario since 2010. I used that date as the starting point because counsel before me agreed that the decision of the Ontario Court of Appeal in R. v. Ramage, 2010 ONCA 488, marked a significant increase in the sentencing range in this province for these kinds of offences. The cases I reviewed were all the cases referred to me in submissions, and some of the cases cited in those decisions. I also reviewed the Supreme Court of Canada decision in Suter, which was released after submissions in this case.

[27] The following chart sets out the cases I reviewed, the offences for which sentences were imposed, the sentence, and information to assist in understanding and distinguishing among the cases. This information includes a summary of the facts, the consequences, and the circumstances of the offender. I have also, for some of the cases, included brief quotes from the decision. The chart is arranged with the highest sentence at the top.

Sentencing Precedent Chart

Case	Offences	Sentence	Relevant Information
R. v. Kummer, 2011 ONCA 39	3 counts of impaired driving causing death; 3 counts of dangerous driving causing death; 2 counts of impaired driving causing bodily harm; 2 counts of dangerous driving causing bodily harm	8 years; defence appeal dismissed	Pleaded guilty; Drove through stop sign at 122 km/h in 70 zone and collided with victim's car; BAC more than twice legal limit after consuming 15 to 20 beers; drinking before and while driving; 3 persons died; another suffered 2 collapsed lungs, shattered hip, broken femur, and saw truck explode, killing his son; long lasting devastating effects on 3 families; offender warned to slow down just before collision; No criminal record; careless driving conviction in which he had consumed 3 drinks and taken medication; of good character; "23. There is good reason, in this case, to move beyond the sentences imposed and affirmed on appeal in Ramage and Junkert. First and foremost, while the harm caused in each of these cases was significant, the results of the appellant's actions here were particularly catastrophic. The appellants in Ramage and Junkert each killed one person. Here, three young lives were lost in the most horrifying of circumstances. The impact of this tragedy on three families and, notably, the physical and emotional toll it has taken on Mr. Berube, must be recognized. The appellant must be held accountable for the consequences of his actions."
R. v. Purtill, 2013 ONCA 692	Criminal negligence causing death; Impaired driving causing death; Criminal negligence causing bodily harm; Impaired driving causing bodily harm; Refusal to provide breath sample	7 years: 6 years for criminal negligence and impaired driving convictions and 1 year consecutive for refusal; defence appeal dismissed	Found guilty after trial; 5 month old baby killed and mother's back broken; Prior record for impaired driving; remorseful; "No fixed upper term for criminal negligence or impaired driving causing death".
R. v. Carreira, 2015 ONCA 639	Criminal negligence causing death	6 years; defence appeal dismissed	Pleaded guilty; Drove wrong way on one way street and crashed, killing his passenger; warned not to drive; BAC 160 mg/100 ml; No criminal record; extensive provincial offences record and drove without insurance; alcoholic; had taken steps to deal with alcohol addiction and had good rehabilitation potential; remorseful.
R. v. Daoud, [2011] O.J. No. 1798 (C.J.)	Impaired driving causing death, breach of probation and breach of undertaking	6 years	Pleaded guilty; Struck and killed a 16 year old riding a bicycle; Extremely erratic driving; BAC 269 and 230 mgs/100 ml; lengthy criminal record including convictions for driving offences and breaches of court orders; on probation at time and driver's licence suspended; Genuinely remorseful; very troubled background; psychological issues.
R. v. Junkert, 2010 ONCA 549	Dangerous driving causing death; Impaired driving causing death	5 years; defence appeal dismissed	Found guilty after trial; Car mounted curb, struck car parked in driveway, knocked over lamp pole, back on road, demolishing car; travelling at "significant speed" in 50 km zone; struck jogger who died immediately; BAC 130 to 170; No record; "49. I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts 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 that it quite properly continues the very gradual trend that has taken place over recent years."
R. v. Hekmati, 2011 ONSC 4642	Impaired driving causing bodily harm; criminal negligence causing bodily harm; dangerous driving causing bodily harm; over 80	5 years less pre-sentence custody; dangerous driving and over 80 stayed per Kienapple	Found guilty after trial; Speed over 100 km/h in 60 zone, swerving several times in passing lane prior to collision – driving "tended toward a deliberate endangerment of the public"; BAC 150 to 225; Victim suffered severe neurological trauma or brain damage; in vegetative state for 5 months; in rehabilitation hospital 2 years; regained ability to speak with slurred speech and move with wheelchair; catastrophic brain injury with very limited cognitive ability and greatly diminished intellectual capacity; requires 24 hour supervision; Offender had 3 prior over 80 convictions and driver's licence condition prohibiting him from driving with any alcohol in his body No remorse; no indication that offender took responsibility for his conduct or dealt with his alcohol abuse issues after the offence
R. v. Niganobe, 2010 ONCA 508	Impaired driving causing death; Impaired driving causing bodily harm	5 years; defence appeal dismissed	Vehicle taken without owner's consent; high BAC readings; drove against a red light; Prior criminal record including prior impaired driving conviction; never licenced to drive; seriously injured in impaired driving collision 6 months before; did not accept responsibility for her conduct
R. v. Cabral, 2016 ONCJ 525	Criminal negligence causing death; Criminal negligence causing bodily harm	5 years	Pleaded guilty; Drove on wrong side of Highway 407 and Highway 403 for several kilometres and struck victim's vehicle head-on; other cars had to swerve to avoid offender; BAC 100 mg/100 ml; driver killed and passenger suffered broken bones and back injury, PTSD, depression; lost her job and is suicidal; 2001 impaired driving conviction; hard-working man of good character; very remorseful; involved in substance abuse counselling;
R. v. Gill, 2017 ONSC 723	Dangerous driving causing bodily harm; Impaired driving; Breach of probation	4 years 3 months	Pleaded guilty after preliminary hearing; Veering and swerving between lanes, struck motorcycle; no evidence of high speed; indicia of extreme impairment; refused to provide breath sample One victim suffered broken pelvis, broken ribs, broken neck and back, collapsed lung, damaged liver, and paralyzed for several months; skin burned in places; significant scarring; nerve damage; speech and memory loss; herniated bowels; cannot enjoy sexual relations; in constant pain; PTSD; Other victim suffered concussion, back and neck pain, dislocated shoulder, and abrasions to leg Prior criminal record including breaches of court orders, but no driving offences;
R. v. Ramage, 2010 ONCA 488	Impaired driving causing death; Dangerous driving causing death; Impaired driving causing bodily harm; Dangerous driving causing bodily harm	4 years; defence appeal dismissed	Convicted after jury trial; Crossed 4 lanes of traffic on busy road and struck two oncoming vehicles; passenger in offender's car killed and driver in other car injured; BAC 229 – 292 mg/100 ml; First offender; outstanding member of community; dedicated father and husband; real and deep remorse; "80 Initially, I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant's exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge's decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. This court must yield to the trial judge's determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision."
R. v. Thompson, 2011 ONSC 624	Impaired driving causing bodily harm; Dangerous driving causing bodily harm; Breach of recognizance X 2	2 ½ years; 2 years on impaired driving causing bodily harm and dangerous driving causing bodily harm, concurrent; 6 months on each breach of recognizance, concurrent to each other and consecutive to 2 year term	Guilty plea after end of Crown's case and blood samples admitted; Veered into oncoming lane and struck victim's car in oblique head on collision; BAC 155 to 196 mg/100 ml; breaches of recognizance were for driving with alcohol in his system; on recognizance for driving over 80 at time of offence; held restricted licence which prohibited him driving with any alcohol in his system; Victim suffered severe breaks in both legs and permanently damaged; can walk only with corrective shoes; lost his pre-accident job; Offender took some steps to deal with alcohol issues but not clear whether yet resolved; very remorseful; extensive community support; gainfully employed and supporting family.
R. v. Fairchild, 2017 ONCJ 658	Dangerous driving causing bodily harm	18 months	Pleaded guilty; Head on collision; driving on wrong side of road at 124 – 136 km/h in 60 zone; BAC 74-118 mg/100 ml together with lorazepam; One victim suffered two broken legs, rod in left femur and plate in right femur; crushed right knee; left knee permanently damaged; fractured right ankle; blunt force trauma to skull; 8 months in hospital; major permanent limitations on mobility; cannot drive; in wheelchair; PTSD and major depressive disorder; Other victim suffered bruised ribs, dislocated left thumb; whiplash neck and lower spine; bruised hip; lost 50% use of left thumb; No record; 3 driving offences; history of sexual abuse and psychiatric disorders; remorseful; attempted suicide after offence and engaged in counselling and volunteer work.
R. v. LaForme, 2014 ONCA 367	Impaired driving causing bodily harm	Conditional sentence imposed by trial judge increased on Crown appeal to 18 months	Pleaded guilty; Drove at high rate of speed, swerved in and out of his lane on snow covered roads, lost control of his truck and rolled it; cut off by bartender and warned not to drive after drinking 8 to 10 beers; passenger rendered quadriplegic; BAC more than double legal limit; victim confined to wheelchair and needs help to do all activities, lives in nursing home surrounded by others much older than him; Defendant 72 years old, with significant health issues; Indigenous; began to drink at age 12 and battled alcohol issues most of his life but reported to have stopped drinking after offence; made significant contributions to his community; five prior dated driving convictions including dangerous driving, over 80, failure to provide breath sample, impaired driving.
R. v. Irons, 2016 ONSC 1490	Dangerous driving causing bodily harm (two counts) Failing to remain at scene of accident (two counts)	18 months: 12 months on each dangerous driving count, concurrent; 6 months on each fail to remain count, concurrent to each other and consecutive to dangerous driving sentences	Convicted after trial; Offender rear-ended motorcycle driven by one victim, with other victim as passenger; both ejected; one victim suffered traumatic brain injury and multiple fractures, was in hospital for 5 months and no longer worked, suffering from chronic pain and depression; other victim suffered brain injury and fractures, was scarred over 80% of her body and was no longer working; offender driving faster than 110 km/hr in 70 zone; made at least two extreme unsafe lane changes without signalling; offender drove away until car stopped functioning and then ran from police; turned himself in 20 minutes later and was remorseful; difficult childhood including physical abuse; in CAS care as a child; criminal record but no driving offences; 4 traffic convictions including speeding; offender was not impaired by alcohol.
R. v. Suter, 2018 SCC 34	Refusing to provide a breath sample after causing an accident resulting in a death	Trial judge sentenced offender to 4 months; Court of Appeal increased to 26 months; Supreme Court of Canada held that 15 to 18 months was appropriate range in circumstances of this case, but since he had already served over 10 ½ months of original sentence and waited 9 months for SCC decision, sentenced to time served.	Pleaded guilty; Offender drove his vehicle onto restaurant patio, killing 2 year old; Offender was not impaired; he refused to provide a breath sample because of incorrect legal advice; he was attacked by vigilantes and had his thumb cut off with pruning shears.
R. v. Mitchell, 2016 ONCJ 731	Impaired driving causing bodily harm (two counts)	16 months	Pleaded guilty Drove at high speed; "showing off"; lost control while passing; BAC 102 to 117 mg/100 ml; one victim suffered multiple pelvis fractures requiring open reduction and internal fixation; second victim suffered lacerations of liver and spleen; No record; lost her job because of charges; difficult childhood left her damaged; no history of alcohol abuse; but history of substance abuse; very remorseful; "in the beginning stages of rehabilitation with reasonable prospects".
R. v. Clouthier, 2016 ONCA 197	Impaired driving causing bodily harm; Dangerous driving causing bodily harm; Failure to stop (two counts)	Trial judge sentenced to 6 months less pre-sentence credit; Court of Appeal increased to 15 months less pre-sentence custody and time already served; Watt J.A. noted that an appropriate sentence would have been 15 to 18 months but for unusual circumstances of intermittent sentence already served and increase on appeal; also stated that decision was of limited use as precedent, given, among other things, sentence of 12 months sought by Crown at trial and mid-to-upper reformatory range on appeal and ex post facto correction of unfit sentence	Pleaded guilty; Offender rear-ended first victim, reversed, drove over median, and fled; few minutes later, rear-ended second victim, fled at speeds from 100 to 130 km/h in residential area, colliding with third victim; climbed out of his window and tried to run away; one victim suffered serious internal injuries which required emergency surgery; other victims suffered physical and psychological harm; BAC 100 to 150 mg/100 ml; Offender sincerely remorseful; 21 year old first time offender, favourable pre-sentence report; suffering from major depression and abusing alcohol and drugs at time of offence; participated in drug and alcohol program after offence and undertaken psychotherapy to treat conditions which contributed to offences, done volunteer work, and remained employed.
R. v. Markos, 2017 ONSC 1497	Dangerous driving causing bodily harm	12 months and 2 years probation	Found guilty after trial; Offender drove motorcycle too fast, passing cars by whipping around them to the left and then to the right in between two lanes of vehicles; collided with car turning in front of him, falling off motorcycle, which continued on, striking victim walking on Yonge Street sidewalk; 67 year old victim suffered spinal fractures, facial and cranial damages, broken vertebrae, ribs, and other bones; lengthy hospitalization and in need of constant medical attention; Offender has supportive family network, genuinely sorry but denies being at fault or doing anything wrong; no alcohol involved; only minor HTA driving offences in past.
R. v. West, 2016 ONCJ 368	Impaired driving causing bodily harm	8 months and probation requiring that he speak to high school students about his case and dangers of drinking and driving	Pleaded guilty; Crashed car at high speed so that it rolled over, causing serious injury to his passenger and himself; BAC 170 to 230 mg/100 ml; passenger suffered two broken ankles and required crutches more than a year after the crash; Offender 24 years old; no criminal record; accepted gravity of his error and showed genuine remorse; completed comprehensive alcohol abuse counselling program and accepted that he had an alcohol problem; took psychological counselling to deal with effects of collision and to address underlying depression issues; active in community, supportive family and community members; offence said to be "out of character".

[28] The chart shows a significant variation in sentences, with the highest being 8 years and the lowest 8 months. The factors which led to the variations in sentences vary, as would be expected. Nevertheless, some things can be gleaned from an analysis of these cases.

[29] The nature of the injuries caused by the offence is very significant. The longest sentence in which the offence caused bodily harm but not death was 5 years in Hekmati, in which the victim had suffered severe brain damage, was in a vegetative state for 5 months, in a rehabilitation hospital for 2 years, and was left with a catastrophic brain injury with very limited cognitive ability and greatly diminished intellectual capacity, requiring 24 hour supervision. There were other aggravating factors in that case, including 3 prior over 80 convictions on the driver's record and no remorse on the part of the driver.

[30] All other sentences of 5 years or more on the chart were for offences which resulted in death.

[31] Other important factors included the blood alcohol level of the offender, the nature of the driving, other offences arising out of the same circumstances, the prior criminal record of the offender, and the offender's prospects for rehabilitation.

[32] The particular offence for which the sentence was imposed is significant as well.

[33] Mr. Stewart was found guilty of impaired driving causing bodily harm. That offence requires that the offender have operated a motor vehicle while his ability to do so was impaired by alcohol, and that while doing so caused an accident that resulted in bodily harm. The maximum penalty for impaired driving causing bodily harm is 10 years in prison. The maximum penalty for impaired driving causing death is life imprisonment.

[34] Mr. Stewart was also found guilty of dangerous driving causing bodily harm and impaired driving causing bodily harm. Dangerous driving requires that the offender drive a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances. In order to be found guilty, the defendant must have been driving in a way that was a marked departure from the standard of care that a reasonable person would observe in the defendant's circumstances. (R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49) The maximum sentence for dangerous driving causing bodily harm is 10 years in prison. The maximum sentence for dangerous driving causing death is 14 years in prison.

[35] Criminal negligence causing bodily harm is a different and more serious offence than dangerous driving. It requires that the accused, in doing anything, or in omitting to do anything that it is his duty to do, "shows wanton or reckless disregard for the lives or safety of others". This requires a marked and substantial departure from the standard of care of a reasonable person. A higher level of moral blameworthiness is associated with criminal negligence than dangerous driving. (R. v. F.(J.), 2008 SCC 60, [2008] 3 S.C.R. 215 at par. 9, R. v. J.L. (2006), 204 C.C.C. (3d) 324 at paras. 16-17) The maximum sentence for criminal negligence causing bodily harm is 10 years in prison. The maximum sentence for criminal negligence causing death is life imprisonment.

[36] Gill was the only case I reviewed which resulted in a sentence greater than 2 years 6 months when the most serious offence was dangerous driving causing bodily harm or impaired driving causing bodily harm. In his reasons for imposing a sentence which was the equivalent of 4 years 3 months, Quigley J. noted that there were no real mitigating factors. Although the defendant had pleaded guilty, he had done so after a preliminary inquiry so that the victims were not spared the trauma of testifying. He did recognize that the defendant was remorseful. He had a number of prior criminal offences on his record, including failure to abide by court orders, but no prior driving related offences. He was on bail on charges of over 80 and impaired driving at the time of the offence. A condition of that bail was that he only operate a motor vehicle with no alcohol in his body. He was found guilty on that over 80 charge after he had committed the offences for which he was being sentenced. The two victims both suffered serious injuries, with one suffering catastrophic injuries.

[37] There are a number of aggravating factors in Mr. Stewart's case.

[38] Mr. Fiegan suffered catastrophic injuries. His life will never be the same. He has lost his opportunity to enjoy innumerable things all of us take for granted. His family has suffered significantly as well. Mr. Fiegan's mother, in particular, has had her life changed as a result of Mr. Stewart's crimes. These collateral consequences are important factors to consider.

[39] Mr. Bishop, too, suffered serious injuries.

[40] The fact that there are two direct victims of Mr. Stewart's crimes who both suffered serious injuries is itself an aggravating factor.

[41] Mr. Stewart's driving was extremely dangerous. He drove at such a speed that his car rolled after running into the ditch and ended up back on its wheels.

[42] The defendant left the scene and hid from the police. I am sentencing him today for the separate offence of failing to stop and give his name and address and assistance with intent to avoid civil or criminal liability after having been involved in an accident.

[43] He had a blood alcohol level between 145 and 200 mg of alcohol in 100 millilitres of blood, at its lowest level almost twice the legal limit.

[44] Mr. Stewart was convicted of impaired driving in 2009 and of breach of recognizance in 2014. At the time of the offence, he was in breach of a bail condition which required him to remain in his house except in the company of his surety. This is also a separate offence for which I am sentencing him today.

[45] There are also a number of mitigating factors which I must consider.

[46] Mr. Stewart pleaded guilty. This is a significant mitigating factor, not only for its beneficial effect on court efficiency but because it shows that he is remorseful. Although the plea was entered at the beginning of the preliminary inquiry, no witnesses were required to testify.

[47] He has also expressed remorse – to his family, his counsellor, the author of the pre-sentence report, his employer and the court. I accept that his remorse is genuine.

[48] He has dealt with the alcohol addiction which was at the heart of this offence. He has undergone counselling and has, by all accounts, remained sober since the accident. This makes his continuing rehabilitation more likely.

[49] In the 8 Ontario cases other than Gill which I reviewed where the most serious offence was dangerous driving causing bodily harm or impaired driving causing bodily harm, the sentence was 2 years 6 months or less. That sentence was imposed in only one case, Thompson. All the other sentences were 18 months or less.

[50] In my view, Mr. Stewart's offences are deserving of a more severe sentence than all of those cases.

[51] Mr. Stewart's offence is much more serious than the offence in Markos, where no alcohol was involved and a 12 month sentence was imposed. The offender in that case had no criminal record. The only offence was dangerous driving causing bodily harm.

[52] In Mitchell, where a 16 month sentence was imposed, the driver's blood alcohol level was lower, the victims suffered less significant injuries, the only offences were two counts of impaired driving causing bodily harm, and the offender had no record.

[53] In Irons, where an 18 month sentence was imposed, no alcohol was involved and the offender's criminal record did not include any driving offences.

[54] In Laforme, where the Court of Appeal increased the conditional sentence imposed by the trial judge to 18 months, the blood alcohol level was comparable to Mr. Stewart's; the offender had five prior criminal driving convictions over 80, impaired driving, and dangerous driving; and the injuries of the sole victim were comparable to Mr. Fiegan's, the defendant was 72 years old, Indigenous with a history of alcohol abuse which started at the age of 12 and had stopped drinking after the offence, and had not been found guilty of leaving the scene or breach of a bail condition, as Mr. Stewart has.

[55] In Fairchild, where Nadel J. imposed a sentence of 18 months, the driving was not dissimilar to Mr. Stewart's, the blood alcohol concentration was lower but the offender had also ingested lorazepam, and the injuries were comparable. However, the offender had no criminal record and had been found guilty of only dangerous driving causing bodily harm. Furthermore, he had a history of sexual abuse and psychiatric disorders.

[56] In Thompson, where Quigley J. imposed a 2 ½ year sentence, the offender's blood alcohol level was similar to Mr. Stewart's and the injuries caused by the accident were, while very serious, not as serious as those suffered by Mr. Fiegan. While the offender was convicted of two counts of breach of recognizance for driving with alcohol in his system, he was not convicted of leaving the scene.

[57] In Clouthier, the Court of Appeal imposed a sentence of 15 months for similar offences to those committed by Mr. Stewart. The injuries were not as severe and the blood alcohol level was lower. The offender had no record. Furthermore, Watt J.A. explicitly noted that the decision was of limited use as a precedent because of the unusual features of the way in which the case had proceeded.

[58] In my view, an appropriate sentence for Mr. Stewart on all of these offences is 3 years in custody. A sentence of that total length is required to give adequate expression to the necessity for denunciation and deterrence.

[59] The specific sentences for the offences are 2 years 6 months for dangerous driving causing bodily harm, 2 years 6 months for impaired driving causing bodily harm to be served concurrently, 2 months for breach of recognizance to be served consecutively, and 4 months for leaving the scene to be served consecutively.

[60] It is appropriate to impose terms of imprisonment for breaching a court order while committing another offence. If there was no further punishment than that imposed for the principal offences, court orders such as conditions of bail will continue to be breached with impunity by offenders. (Thompson at para. 53) Similarly, the term of imprisonment for leaving the scene of an accident should be consecutive. It is a separate offence committed after the other offences were complete.

[61] Crown counsel sought a 5 year driving prohibition. Defence counsel agreed that was appropriate, subject to a credit arising from the defendant's bail terms. I agree that a 5 year prohibition is appropriate and required in order to serve as a deterrent to others who might commit such an offence. The defendant has, however, been subject to a bail condition for the past two years prohibiting him from driving. He is entitled to a credit for this against the length of driving prohibition. (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 113-114) I therefore prohibit him under s. 259(2)(b) from operating a motor vehicle for a period of 3 years plus the 3 year term of imprisonment, for a total prohibition of 6 years.

Released: September 20, 2018

Signed: Justice P.K. Doody