ONTARIO COURT OF JUSTICE

CITATION: R. v. Nielsen, 2019 ONCJ 324

DATE: 2019·03·21

COURT FILE No.: Newmarket 18-02850

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYLER NIELSEN

SENTENCING

Submissions heard: March 21, 2019.

Sentence Delivered: March 21, 2019.

Mr. Paul Tait, Mr. Michael Ventola.......................................................... counsel for the Crown

Mr. Sheldon Wisener......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] On the afternoon of Sunday, November 12, 2017, Tyler Nielsen and his girlfriend had an argument. Mr. Nielsen’s cousin picked him up from the girlfriend’s residence and took Mr. Nielsen back to his mother’s house. Later that evening Mr. Nielsen asked to go out again for a drive and his cousin refused as it was too late. Mr. Nielsen asked his cousin if he could borrow the car and was told no. After everyone had gone to bed, Mr. Nielsen took the car and drove from Whitby in Durham Region to the north end of Whitchurch-Stouffville in York Region. He ended up travelling at extreme speed northbound on a rural highway.

[2] After a preliminary hearing Mr. Nielsen re-elected trial in this court and pleaded guilty to criminal negligence causing death. The circumstances of the collision are set out in the Agreed Statement of Fact marked as Exhibit #1. The toxicology evidence of Ms. Hird showed that his blood alcohol level of 45mgs/100ml combined with blood concentrations of three drugs – Lorazepam 50ng/ml, Temazepam .76mg/L, THC 10ng/ml – impaired Mr. Nielsen’s judgment and his ability to operate the vehicle. Beyond impairment, the evidence showed that Mr. Nielsen engaged in extreme risk taking, driving at speeds in excess of 200km/hr on Highway 48, a narrow, single lane rural road that opens up to two lanes at the Davis Drive intersection. Mr. Nielsen drove in the oncoming lane for the last 5 seconds, but at that extreme speed he travelled approximately 300 metres in that time. In the dark early morning hours, the oncoming driver Mr. Stuart Ellis never had a chance to react. The defendant concedes his marked and substantial departure from prudent conduct meets the high test for criminal negligence.

[3] The Crown requests a sentence in the range of 6 to 8 years with a driving prohibition for 8-10 years. The defence submits that a sentence of 5 years with a driving prohibition for 5 years would meet the purpose and principles of sentencing in this case.

Aggravating Circumstances

[4] Beyond the driving conduct and tragic result that form the basis of the offence, there are several further aggravating circumstances:

• Mr. Nielsen took the car he was driving without the consent of the owner after being refused permission to take the car
• Mr. Nielsen was on a probation imposed under the Provincial Offences Act RSO 1990 c P33, which included a condition not to operate a motor vehicle
• Mr. Nielsen’s ability to operate the vehicle was impaired by a combination of alcohol and drugs
• Deaths caused by impaired and/or risk-taking drivers are a significant ongoing problem in York Region
• The terrible impact of this offence on the family of Stuart Ellis and the community

[5] While Mr. Nielsen’s blood alcohol level may have been as low as 45 mgs/100ml at the time of driving, and the levels of two of the drugs were within the therapeutic range, choosing to drive after combining alcohol with marijuana and two further drugs shows a complete disregard for public safety.

[6] As the Crown Attorney for York Region, Mr. Tait has had to make similar submissions in R v Ramage [2008] OJ No 192 (SCJ) affirmed 2010 ONCA 488, and R v Muzzo 2016 ONSC 2068. Despite the national notoriety of those cases, and the significant impact each had on this community, impaired driving and risk-taking driving remain a significant cause of death in this community. The prevalence of an offence within a particular community is a relevant factor on sentence – R v Lacasse 2015 SCC 64 at para 89

[7] Twenty three Victim Impact statements were filed by the Crown and marked collectively as Exhibit #3. Ten of those statements were read out in court. The impact of the offence on Mr. Ellis’s wife, his young children, his extended family and the community was described in detail, but it’s important to acknowledge that the impact of such a horrific event is never sufficiently described in words.

[8] The reading of the Victim Impact statements was a significant component of the sentencing proceedings in this case. Mr. Nielsen heard directly about the terrible consequences of his actions from those most affected. He heard Justine Ellis describe learning of the death of her husband when she was caring for a 14 month old child and was pregnant with another. Mr. Nielsen saw in court the two children who will grow up not knowing their father because of his actions. The written statements and those that were read directly help acknowledge the extent of the harm done and impress upon Mr. Nielsen the scope of responsibility he bears. The process plainly left a lasting impression on him as described in his remarks on sentence. I thank all those who had the courage to share their experiences.

[9] I disagree with the suggestion in one of the statements that the victim is only a “sidebar” or “insignificant” in the sentencing process. On the contrary, the senseless and deeply unfair death of Stuart Ellis as reviewed at the preliminary hearing and described in detail by his family and friends in this proceeding is at the center of this process. It’s true that a court cannot fill the void left by Mr. Ellis’ death or take away the deep pain of that loss, but one of the central goals of sentencing in this case is to acknowledge the harm done to Mr. Ellis’ family and to the community. The impact of this offence on all the victims is a significant factor on sentence.

Mitigating Circumstances

[10] Despite the gravity of the offence, there are several circumstances that mitigate sentence:

• The guilty plea
• Mr. Nielsen was 20 at the time of the offence
• The fact that he has no criminal record
• Extensive evidence of mental health issues active at the time of the offence
• Evidence of compliance with treatment including counselling and medication after his release
• Time served before release on bail
• Time spent on a restrictive release including conditions prohibiting driving

[11] Even though the plea came after a preliminary hearing, in this case it is still properly viewed as an expression of remorse. The preliminary hearing was aimed at determining whether the driving evidence met the high standard for criminal negligence. The focused hearing on that point including a review of the accident reconstruction evidence was beneficial to both parties and led ultimately to the resolution by way of guilty plea. Mr. Nielsen’s statements at the hospital when he learned of what happened and his statement on sentencing are consistent with genuine remorse.

[12] Mr. Nielsen had just turned 20 at the time of the offence and he has no criminal record. A Highway Traffic Act record is not equivalent to a criminal record (R v Ruizfuentes 2010 MBCA 90), although the circumstances of the prior finding are relevant in this case – R v Lacasse at para 80. I’m mindful that the prior result was an admission of careless driving and not an admission of proof of the original charge of drug impaired driving. The submissions of both counsel reflect that fact.

[13] The report of Dr. Gojer reviews Mr. Nielsen’s pychological history from birth to the present. Dr. Gojer provides extensive personal and family history. He summarized over 40 pages of relevant medical and hospital records. The comprehensive report marked as Exhibit 4 was very helpful to the parties and this court in determining a fit sentence in this case. I thank Dr. Gojer for his very careful work in that regard.

[14] Dr. Gojer’s diagnosis that Mr. Nielsen suffers from chronic anxiety disorder with features of social anxiety and panic attacks is well supported by the evidence he cites. For someone his age, Mr. Nielsen already has a long history of significant depression and suicidal ideation. The abuse of prescription and non-prescription drugs and his family problems only made the situation worse.

[15] Just prior to this offence Mr. Nielsen was living with a girlfriend. Unfortunately, she had significant mental health problems of her own including self-harm and borderline personality disorder. It was their breakup and the depression that resulted in the chain of events that tragically led to the death of Mr. Ellis. The medical history outlined in Dr. Gojer’s report shows dozens of interventions by the health system, but almost all were brief and episodic, focused on a singular event. Mr. Nielsen was not successfully directed to ongoing counselling and therapy in the years prior to the incident.

[16] Dr. Gojer found that Mr. Nielsen does not suffer from a major mental disorder such as schizophrenia or bi-polar disorder. He does not have anti-social personality disorder and does not have features of psychopathy. All of this means that his issues are treatable. The letters in Exhibit 5 show that after the offence Mr. Nielsen engaged in regular and ongoing treatment with Dr. Perera and the social workers in the Mental Health and Justice Treatment and Support Services program at North York General Hospital. He has attended counselling and has taken medication as directed. The recent letter marked as Exhibit 5B shows that despite those efforts and his good conduct on release, Mr. Nielsen remains at a “significantly elevated risk of deterioration”. Further ongoing work is needed while Mr. Nielsen is serving his sentence and upon his release.

[17] Mr. Nielsen served 24 days in pre-trial custody. He’s entitled to credit 36 days credit for time served – R v Summers 2014 SCC 26. He’s been on a somewhat restrictive release for 15 and a half months and that is also given credit towards sentence. R v Downes 2006 CanLII 3957 (ON CA), [2006] OJ No 555 (CA). The term of bail prohibiting driving can be relevant to prohibition (Lacasse), but I note the accused was otherwise suspended from driving to July 6, 2018 and he has been medically suspended since November of 2017 so I give that circumstance no weight in this case.

Range of Sentence

[18] It’s not necessary to review in detail the cases submitted by the Crown and the defence. As both parties acknowledged, sentencing cases always reflect the particular circumstances of the offence and the offender. There is a narrow difference between the lower end of the Crown range and the sentence submitted by the defence. Both parties find support for their submitted range in relevant prior cases. I find the submissions of both parties to be within the range in the circumstances of this case.

Sentence

[19] When imposing sentence, a court typically tries first to repair any harm done to the victims of crime. Reparations and restitution are just as important as any punishment imposed. As several family members pointed out in their Victim Impact Statements, there is no way to accomplish that in this case. The lives of Mr. Ellis’s wife, children and family are forever changed and diminished by his unfair and senseless loss. That’s not something the court or Mr. Nielsen can fix or change. The terrible impact on the victims is a significant factor on sentence – s.718.2(iii.1).

[20] While there is no way in this case to restore Justine Ellis and her family to the life they had before the offence, several important sentencing objectives remain:

• denunciation of the conduct and its consequences s.718(a)
• deterrence of this offender and others from committing similar offences s.718(b)
• separation of the accused from society as a necessary means to accomplish the other sentencing objectives s.718(c)
• promotion of a sense of responsibility in this offender and acknowledgement of the harm he’s done to others s.718(f)

[21] After serving the term of imprisonment, Mr. Nielsen will return to the community. This sentence must also provide for his rehabilitation to ensure that he does not pose a further threat when released – s.718(d). Overall the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – s.718.1.

[22] It’s not plain why Mr. Nielsen drove from Whitby to this rural road just East of Newmarket. It’s not plain why he chose to drive at extreme speed as he passed Mr. Caines on Highway 48 or why he continued at maximum speed until he later crossed into the oncoming lanes. Given his past psychological history, it’s open to speculate that Mr. Nielsen may have been suicidal at the time. If the Crown had evidence proving the collision with Mr. Ellis was intentional, the result would have been murder and a life sentence would be the minimum term that would reflect the gravity of that offence. But Mr. Nielsen had many earlier opportunities to end his life over the course of the long drive. The evidence shows he passed other drivers at high speed well before the collision. The Agreed Statement of Fact notes that there is some evidence that Mr. Nielsen attempted to steer away from the crash at the very last opportunity although that digital record may bear other explanations. Mr. Nielsen suffered injuries in the collision and does not now remember those events.

[23] Mr. Nielsen has been found guilty of criminal negligence causing death which reflects his responsibility for his condition at the time of driving and the manner in which he drove. While the thinking, if any, that led to that driving remains a mystery, what is plain is that Mr. Nielsen’s decision to take a car and drive in that condition and in that extreme and reckless manner was selfish, and others have paid a heavy price.

[24] I agree with the Crown that even on a guilty plea, given the aggravating features set out above and the prevalence of the offence in this community, a fit sentence would typically fall within the range of 6 to 8 years reflecting the high degree of risk-taking behaviour in the offence of criminal negligence. However, in this particular case, given the age of the offender, the lack of a prior criminal record, and most importantly given the significant psychological issues identified where the accused has taken significant steps to address those issues, I find a fit sentence for this offender would be a penitentiary term of 5 years in addition to time served and time spent on a restrictive bail.

[25] While Mr. Nielsen has taken significant steps to address his mental health issues, that remains very much a work in progress. There is still a significant risk of deterioration which requires determined, ongoing work to address. The medical evidence including the most recent letters show that Mr. Nielsen poses a risk to the public in relation to driving which is relevant to the term of prohibition. The purpose and principles of sentence outlined above also apply to the term of prohibition. Considering the circumstances of the offence and this offender I find it necessary to prohibit Mr. Nielsen from operating a motor vehicle for 8 years after his custodial sentence is completed.

[26] Criminal Negligence Causing Death s.220 is a Secondary Designated Offence under s.487.04 of the Criminal Code. Considering the circumstances of this offence, the role that DNA can play in the investigation of like offences, the strong public interest in those investigations and the minimal intrusion on the offender’s personal privacy given the protections in the databank system, I order that Mr. Nielsen provide a sample of his DNA for registration on the national databank.

Delivered: March 21, 2019.

Justice Joseph F. Kenkel