ONTARIO COURT OF JUSTICE

CITATION: R. v. Bauman, 2019 ONCJ 569

DATE: 2019 08 08

COURT FILE No.: Owen Sound 18-1101

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EMANUEL BAUMAN

Before Justice J.A. Morneau

Heard on July 23, 2019

Reasons for Sentence delivered on August 8, 2019

Mr. Leger............................................................................................... counsel for the Crown

Mr. Grace.......................................................................................... counsel for Mr. Bauman

Morneau, J.:

[1] Mr. Bauman appears before me today as a father who has always accepted full responsibility for his young son Steven’s death on August 31, 2018. From the first day he appeared in my court he wanted to enter a guilty plea to the criminal negligence cause death charge. He agreed however to get legal advice. Mr. Grace assisted Mr. Bauman thereafter. Through counsel, Mr. Bauman, advised that he accepted all of the evidence in the crown disclosure. The only issue was a legal one – whether that evidence supported the charge. That issue was argued before me in April and on May 15^th I gave written reasons finding Mr. Bauman guilty.

[2] The facts, though tragic, are not complicated. Mr. Bauman let his 2 young sons ride in the bucket of his skid steer as he worked on his farm. The skid steer was pulling a heavy metal dump style trailer and while it was dumping its load Steven, aged 4, fell from the bucket. At the time of the fall Mr. Bauman was looking back on the load as the skid steer continued to move forward. Mr. Bauman did not see Steven fall from the bucket. Nor did Luke, aged 7, who was also riding in the bucket. The skid steer struck Steven’s head and he died later that day at Sick Children’s Hospital in Toronto.

[3] Mr. Leger recommends a sentence of 2 years less a day followed by 3 years of probation and a driving prohibition for 10 years. Mr. Grace recommends a suspended sentence and probation for 2, possibly 3 years. As a back-up position and then only if I feel some jail time is required, he argues for a sentence in the mid intermittent range with probation. Mr. Bauman does not have a driver’s licence so Mr. Grace takes no position on that application.

[4] Mr. Bauman participated in the preparation of a presentence report. It is unreservedly positive. The author of the report spoke with Mr. Bauman, his wife, his mother, his father, 2 of his 11 siblings, his neighbour, a previous employer, his nurse practitioner, a child protection worker and the investigating detective. To a person the reports describe a 33 year old man who is a dedicated father, husband, son, brother and farmer.

[5] Mr. Bauman is a quiet man. He works very hard and carries a large financial responsibility related to the farm. He is described as healthy, both physically and emotionally. He does not drink alcohol. He experienced a positive upbringing. He has strong family and community support. He has no criminal record.

[6] I quote from the presentence report: Mr. Bauman has been “guided by his Mennonite community affiliations and teachings”. The subject cited his commitment to his family and to his marriage and the discussion revealed his efforts to support his wife and family members in working through their loss of their son and brother in recent months. His commitment to his faith and his Mennonite traditions were discussed and it was evident that the subject has found support and strength from his belief system and community.

[7] The presentence report also explains that Mr. Bauman made positive changes around the farm since the death of Steven that have resulted in physical changes to enhance child safety – a new driveway and fencing. There were also significant changes in parenting and how the farm is operated. The Agency’s file was closed in February.

[8] The presentence report also addressed the fact that other members of Mr. Bauman’s community have taken measures to improve safety on their farms as a result of this tragedy.

[9] The author of the presentence report concluded that as part of a sentence Mr. Bauman would be a suitable candidate for community supervision. She recommended that at least one of the terms include grief counselling. During sentencing submission Mr. Grace advised that Mr. Bauman would be willing to speak to farm communities about children’s safety on the farm.

[10] I asked if there was a victim input statement and Mr. Leger advised there was not. Mrs. Bauman was present in court, as she has been on all of her husband’s appearances, and through Mr. Grace she declined to add anything. I completely respect her decision. I cannot imagine her position as the mother of Steven and the wife of Mr. Bauman all the while she is called upon to care for the other children, aged one to nine years of age. I am also mindful that Luke was present when Steven was injured.

[11] Criminal negligence causing death is one of the most serious offences in the Criminal Code. Parliament allowed for a range of sentences from a suspended sentence through to life in prison. The facts in support of this charge can vary extensively as can the circumstances of the offenders.

[12] Counsel provided me with 5 cases. All involved the use of a motor vehicle. One of the 5 cases, R. v. Hollinsky 1995 8929 (ON CA), 1995, 103 CCC (3d) 472 (Ont. C.A.), was for the offence of dangerous driving causing death. The balance were for criminal negligence causing death.

[13] Attached to the decision in R. v. Lam (2003), 2003 31332 (ON CA), 180 CCC (3d) 127 (Ont. C.A.), is an appendix summarizing criminal negligence causing death and dangerous driving causing death decisions between 1976 and 2002. The appendix is instructive as in nearly every case of criminal negligence causing death [where driving was a factor] alcohol was involved.

[14] In R. v. Linden, 2000 15854 (ON CA), [2000] O.J. No. 2789, Justice Rosenberg writing for the court clarified that there is no set range of sentence for the offence of criminal negligence causing death. At paragraph 2 he noted:

The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.

The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially blameworthiness of the conduct. The more the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

[15] In R. v. Lam, 2003 31332 (ON CA), [2003] O.J. No. 4127, the defendant had been driving at a high rate of speed on a busy 6 lane highway on one of the busiest days of the year. His vehicle collided with another killing a 29 year old mother of 2 young children. The court declined to set aside the sentence imposed at trial in part because there was no alcohol or drug involved, no street racing, no reckless driving for a lengthy period of time, no attempt to evade police or leave the scene of the accident, and no criminal or significant driving record. In addition to this the defendant had abided his strict release conditions and was of impeccable background and prior good character. The sentence was two years less a day, followed by 3 years of probation and a life time driving prohibition.

[16] In R. v. Aleksev, 2016 ONSC 6080, [2016] O.J. No. 5013, Justice Trotter cited the Linden and Lam decisions when sentencing a then 23 year old defendant on one count of criminal negligence cause death. There was reckless driving at a high rate of speed, driving through a red light and striking and killing a cyclist. The defendant had a driving record for speeding and some suspensions. He did not accept full responsibility for the offence. He faced deportation. Justice Trotter imposed a sentence of 2 years less a day, 3 years of probation and a 15 year driving prohibition.

[17] In R. v. Cedras (1981), 1981 3114 (ON SC), 61 CCC (2d) 287 (QC CA), the 42 year old offender had a high level of alcohol in his body and while driving killed 2 people. He was sentenced on appeal to a 2 years suspended sentence with community service and a 3 year driving prohibition. With the greatest of respect I feel confident that on the same facts today that sentence would not be imposed. [See Linden]

[18] In Hollinsky the defendant pleaded guilty to 2 counts of dangerous operation of a motor vehicle causing death. He was 19 years of age at the time. High speed was involved. Justice Nosanchuk suspended the passing of sentence and placed the defendant on probation for 3 years with 750 hours of community service work and imposed a 2 year driving prohibition. The Court of Appeal upheld the sentence taking particular note of the exceptional circumstances in the case and the defendant’s post sentence community service. [I also note that the maximum number of community service hours that can be imposed as a term of probation is now 240.]

[19] Unlike the cases counsel brought to my attention in Mr. Bauman’s case there was no excessive speed involved in this accident. There was no erratic driving. There was no alcohol involved.

[20] The primary sentencing considerations are deterrence and denunciation. Rehabilitation is also a sentencing consideration.

[21] On the issue of specific deterrence I am satisfied that Mr. Bauman will not re-offend. Mr. Bauman has suffered the loss of his son Steven. There is no more ultimate price than that. There is direct evidence that he has learned from his behaviour. He has also made positive changes on the farm to ensure the safety of his other young children.

[22] On the issue of general deterrence Mr. Leger discouraged me from asking the question – whom I am deterring when I impose this sentence? He argues that a message needs to be sent to others of like mind that such behaviour must be deterred.

[23] There are no reported criminal law decisions in Canada dealing with the death of a child in a farm accident. I conclude that either the death of a child on a farm is rare in Canada and/or if there is a death no criminal charges are laid and/or if charges are laid the outcome is not reported.

[24] The audience that this sentence would be directed to includes farmers, or those working on farms, where young children are around farm equipment. It could also possibly include anyone working with heavy equipment at a work site who permitted children to be around the equipment. The fact that there are no reported decisions where a child died in a farming accident which accident was criminally negligent causes me to put less weight on denunciation in this sentencing. This is a rare event.

[25] I am satisfied that any farmer or other person operating heavy equipment in the course of a farm operation is more likely to be deterred from risking a child’s safety by the prospect that the child could die – than by the prospect of going to jail.

[26] The more difficult aspect of this sentence is recognizing the principle of denunciation.

[27] Mr. Bauman never intended to harm his son. He was doing what so many farmers have done and of which I spoke of in my reasons leading to the finding of guilt. He was letting his sons join him in part of the farm operation albeit they were too young and put at risk.

[28] I concluded that when Mr. Bauman placed his children in the skid steer bucket, untethered, while he was driving the machine and working with it, as opposed to giving the children a ride with his sole focus on them, there was a marked and substantial departure from what a reasonably prudent parent would do. Mr. Bauman’s decision was reckless as he knew it was dangerous and completely foreseeable that if his child fell from the bucket while his back was turned and he continued to drive forward, no matter how slowly, serious life threatening bodily harm could occur.

[29] However, Mr. Bauman’s conduct, in the words of Justice Rosenburg in Linden, is at the lowest end of the spectrum of “deliberate endangerment”. I should not be taken to mean that Steven’s life was not valuable. It was. He was an innocent child enjoying time with his father and brother in the late summer just before school was to start when he died.

[30] I did not hear how the family would cope if Mr. Bauman was sentenced to a lengthy reformatory term however I suspect his family would step in to help run the farm. The more concerning fact is that his children would be without their father and his wife without his support. A jail sentence would compound the family’s grief.

[31] My conclusion on this sentence should not be taken to mean that the death of a child in circumstances of criminally negligent behaviour is not a very grave matter. It is.

[32] However when I consider all of the sentencing considerations I am satisfied that a fit and just sentence in these unique circumstances is a suspended sentence with probation for 3 years. I am satisfied that the principle of denunciation is addressed by the conviction itself.

[33] I will outline the conditions shortly.

[34] Mr. Grace did not object to me imposing a driving prohibition order. Mr. Bauman does not have a driver’s licence. He and his family rely on others for transportation. A driver’s licence is generally not required to operate farm equipment or a skid steer. I will however impose a 10 year driving prohibition order.

[35] This is a secondary DNA offence. Mr. Leger has not requested an order but I will ask crown counsel to address this.

[36] The probation terms will include a reporting condition, the usual residence condition, release of information conditions, a counselling term related to parenting and grief support and 240 hours of community service to be completed in the first 18 months of the probation term. The community service is to be in the form of public speaking on child safety on the farm.

Released: August 8, 2019

Signed: Justice J.A. Morneau