Court Information

Ontario Court of Justice

Date: December 13, 2019

Location: Sudbury

Parties

Between:

Her Majesty the Queen

— And —

Michael Spencer

Before the Court

Justice: André L. Guay

Heard: June 24 and October 10, 2019

Reasons for Judgment Released: December 13, 2019

Counsel

For the Crown: Robert Parsons

For the Accused: P. Berk Keaney

Reasons for Judgment

GUAY J.:

Guilty Plea and Facts

[1] On June 24, 2019, the accused pled guilty to one count of dangerous driving causing death and one count of dangerous driving. These charges arose from a head-on collision between a Ford 150 truck driven by the accused, Michael Spencer, and a Chevy Equinox driven by Hartley Ceasar.

[2] As noted in the Agreed Statement of Facts (Exhibit 1A), Hartley Ceasar's spouse, Dawn Ceasar was killed in the collision while both Hartley Ceasar and her son, Jack Ceasar, were seriously injured. The collision was deliberately caused by the accused in a deliberate attempt to commit suicide by driving his vehicle into an oncoming, westbound tractor-trailer at a juncture on Highway 17 near the community of Walden in the City of Greater Sudbury.

[3] We know from a text sent by the accused to his ex-girlfriend, Cathy Roberge, very shortly before the accident (Exhibit 1B) that the accused clearly intended to commit suicide. In retrospect, his instrument of choice would be his company's Ford 150 truck. He would do so by deliberately driving that truck into the path of an oncoming tractor trailer. The accused's uncle had succeeded in committing suicide in a similar fashion more than 10 years earlier.

[4] It is clear from the accused's suicide note (Exhibit 1B) that he was totally despondent about his life and the unacceptable manner in which he had treated those close to him in the past. As indicated in the second Agreed Statement of Facts filed in this matter (Exhibit 5), the accused's desperate state of mind originated on the day before the suicide attempt on the afternoon of May 28, 2018. Unfortunately, the response of his former girlfriend, his sister, his best friend and close family members to his threat to commit suicide was too late to prevent the collision which occurred between his truck and an oncoming tractor trailer driven by Carla Fraser. The latter's quick action in swerving to avoid a collision between her tractor trailer and the accused's truck would permit her to avoid serious injury or death. Unaware of what was taking place before them, however, the three members of the Ceasar family in a passenger vehicle only two cars behind the tractor trailer were not so fortunate.

Issue

[5] The issue before the court today is what legal principles to apply in determining the proper sentence to be imposed on the accused for the commission of the two offences to which he pleaded. The approach of the Crown in this matter has been to treat what occurred as driving offences rather than to see them as matters of criminal negligence. In "Sentencing" (Ed. 8, 2012), Clayton Ruby has suggested that similar matters will proceed as driving offences where it might be difficult to prove criminal negligence (at 23.687). While in the present case I do not believe that it would have been difficult to establish the mens rea required in a charge of criminal negligence, the Crown chose to proceed on the basis of treating what happened as constituting offences of dangerous driving. The Crown has asked for an 18 month sentence of incarceration with probation while the Defence seeks an 18 month conditional sentence order with probation.

[6] Be that so, cases dealing with sentencing for both these categories of offending (dangerous driving and criminal negligence arising from dangerous driving) do not have very different sentencing outcomes, their underlying factual basis being similar. The cases, then, which have been decided with respect to both criminal negligence in the context of dangerous driving and dangerous driving offences themselves can both provide some guidance on how to approach sentencing in this matter. Generally, when the facts underlying offences involving an accused's driving are at play, the applicable sentencing principles focus on denunciation and general deterrence. In addition to the moral blameworthiness of the offender, the consequences of dangerous driving conduct will be a relevant factor, not just the conduct itself (Ruby at 23.684). Notwithstanding too the focus on denunciation and general deterrence in such cases, imprisonment is not mandated (Ruby at 22.685).

Dangerous Driving

[7] In dangerous driving cases, the Crown must establish that the accused drove in an objectively dangerous manner constituting a marked departure from a standard of care of a prudent person (R. v. Patenaude, 2004 SaskQB 295).

[8] In R. v. Roy, 2012 SCC 26, the Supreme Court dealt with the case of a driver who had entered a roadway into the path of an oncoming vehicle. The collision between the driver's vehicle and the oncoming vehicle resulted in the death of the driver's passenger and he was convicted of dangerous driving causing death. While the Court did not have difficulty with the earlier determination of the actus reus of the offence (driving in a manner dangerous to the public having regard to all of the circumstances), it was not satisfied that the courts below had correctly determined the matter of the accused's mens rea and acquitted him. At paragraph 28 of its decision, the Court noted:

The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, para 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will be made out if the care exhibited by the accused constitutes a marked departure from that norm. The lack of care must be serious enough to merit punishment (para. 48).

[9] Citing Charron J (as she then was), in Beatty, the Court stressed this point noting:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are not in reality morally blameworthy (para 32).

[10] In Patenaude, the accused caused an accident when trying to pass another tractor trailer. Probably seeing the accused's driving as the result of his dangerous risk-taking and miscalculation rather than a deliberate attempt to cause harm, the court in that case imposed on the accused a conditional sentence of 15 months, together with a probationary period of 18 months and a three-year driving prohibition.

[11] In R. v. Mueller, Cory J. stated that in order to establish dangerous driving, the Crown had to establish beyond a reasonable doubt that the accused had driven "in a manner endangering life or safety of others" and that "such jeopardizing was the result of the driver's departure from a standard of care that a prudent driver would have exercised having regard to what were or might reasonably have been expected to be the condition, nature or use of the place where he was driving including the amount of traffic thereon" (para. 7).

No Incarceration

[12] Notwithstanding a finding of dangerous driving, the court will not always focus on incarceration as a means of giving effect to the principles of denunciation and general deterrence.

[13] In R. v. Hargreaves, [1999] O.J. No. 5171, for example, the court chose to impose a conditional sentence of 15 months with 100 hours of community service instead of a strict sentence of incarceration on a charge of dangerous driving causing death. While this was not a case involving street racing, although it appeared from the fact situation that it did have some elements of it, the accused had a good personal history and had not had involvement with the law prior to the accident. While counsel agreed that the appropriate range of sentencing in such cases was 9 to 18 months and the sentencing judge accepted that denunciation was the primary principle of sentencing in driving offences, she determined that the important sentencing principle of general deterrence could be affirmed by a conditional sentence severely restricting the accused's freedom. With respect to the principle of deterrence, she concluded that this requirement had been satisfied by the trauma the accused had experienced. She was convinced that imposing a strict custodial term on the accused would have the effect of putting him on a negative path rather than promoting his rehabilitation.

[14] In R. v. Hollinsky, [1995] O.J. No. 3521, the Ontario Court of Justice sentenced a 19-year-old convicted of two counts of dangerous driving causing death to a suspended sentence, placing him on probation for three years, with a condition that he perform 200 hours of community service. The accident, in which two of the accused's close friends were killed, occurred when he lost control of his vehicle as he attempted to overtake another vehicle at high speed. These cases seem to indicate that where dangerous driving has occurred but there are mitigating circumstances, such as a lack of maturity, incarceration might not always follow. Perhaps the court in Hollinsky was not satisfied that the accused had demonstrated a degree of moral culpability or blameworthiness serious enough to send him into custody.

Street Racing

[15] The approach of the courts in Hargreaves and Hollinsky does not appear to have been adopted in cases involving street-racing. In R. v. Nusrat, the Ontario Court of Appeal set aside a conditional sentence in a street racing case. Instead, the Court imposed a strict custodial sentence of 30 months for criminal negligence, deciding that denunciation and general deterrence were the paramount principles applicable in such cases.

[16] Later, in another street racing case, R. v. Field, 2011 ABCA 48, the Alberta Court of Appeal responded similarly to its Ontario counterpart. In light of serious injuries inflicted on innocent bystanders (the accused was charged with two counts of dangerous driving causing bodily harm), the trial judge's sentence of 90 days custody was increased by the Court to a custodial term of 14 months. The Court found that the trial judge had overemphasized the accused's youthfulness (he was 18 years of age) rather than focusing on the key sentencing principles of denunciation and general deterrence. The trial judge's sentence, the Court found, "failed to give primacy to the objectives of denunciation and deterrence which were necessary and appropriate for this crime" (para 22). Noting the principle of proportionality set out in s.718.1 of the Criminal Code, the Court found that the accused's "high degree of moral blameworthiness" had not been factored into the sentence handed down by the lower court. The street racing in which the accused had engaged demonstrated, it maintained, "…not only gross negligence and a willingness and intention to subject others to great hazards" but was evidence of a "high degree of moral blameworthiness" as to both the gravity of the offence and the level of responsibility of the offender" (para. 23). The Court's use of the term "gross negligence" in this instance illustrates the murky divide between "criminal negligence" and "dangerous driving" when we are dealing with offences rooted in motor vehicle accidents.

[17] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada restored an 18-month sentence of incarceration handed down to an 18-year-old who had been convicted of dangerous driving causing death and dangerous driving causing bodily harm. In its decision, the Court indicated that while the Court itself might have imposed a conditional sentence in the case, the Court of Appeal had, in the absence of clear error, erred in not showing deference to the trial judge's decision not to grant a conditional sentence. Conditional sentences, the Court noted, were available in cases where four criteria were met. These included: the absence of a minimum penalty of incarceration; a determination that the safety of the community was not at issue; a rejection by the trial judge of the options of probation or a penitentiary term and a determination that the conditional sentence the court proposed to make was consistent with the sentencing principles outlined in sections 718, 718.1 and 718.2 of the Criminal Code. It is of note that, in light of the fact that the young adult had served the sentence imposed on him by the Court of Appeal, the Court stayed enforcement of the restored sentence on the accused. While the Supreme Court found that a conditional sentence could meet the restorative objectives of the criminal law, it also found that such a sentence would also satisfy the principles of deterrence and denunciation. (para. 22) The Court specifically rejected the argument that conditional sentences were never to be available in dangerous driving cases. (para. 130). The background and positive antecedents of an accused might lead the court to opt for a conditional sentence.

Suicide Driving Cases

[18] Of specific interest with respect to the present matter are cases dealing with driving intended to bring about suicide, where the driver has driven his or her vehicle into oncoming traffic and, in doing so, caused death or serious injury to the occupants of another vehicle or vehicles or to innocent bystanders. While such cases are not numerous, the courts have not been reluctant to denounce and sanction those causing such accidents in the most serious terms. Harsh consequences are visited on offenders to the extent that their actions were deliberate and hazardous to others using the road or finding themselves in the vicinity of their dangerous driving conduct. Youthfulness generally does not qualify for a reduction in penalty, particularly when reckless or extremely dangerous driving behavior is involved.

[19] In R. v. Tkachuk, [2001] A.J. No. 1277, the Alberta Court of Appeal upheld the increased three-year sentence imposed on the accused by the sentencing judge notwithstanding a joint submission. The joint submission had been for two (2) years custody, but was increased by the sentencing judge to three (3) years. The Appeal Court was displeased at the outcome of the sentencing process but nevertheless upheld the sentencing judge's increased sentence. Citing (para. 13) Chief Justice Lamer (as he then was) for the principle that the punishment should be proportionate to the degree of the accused's moral blameworthiness, it held that even the increased punishment meted out by the sentencing judge had not been proportionate to the offence.

[20] In Tkatchuk, the Alberta Court also gave support to the principle enunciated by Chief Justice Lamer in R. v. M. (C.A.), that where bodily harm was inflicted intentionally, the accused should be punished more severely than a person causing it unintentionally (para. 82). This consideration finds itself in the case law when accidents, even fatal ones, are caused by negligence or momentary lapses in conduct rather than by unacceptable and reprehensible conduct. In Tkachuk, the Alberta Court of Appeal chose to interpret the accused's suicidal motivation as an aggravating factor, rather than seeing his distressed behaviour as a factor mitigating his moral blameworthiness. The Court in fact likened the offence as akin to one meriting a sentence for attempted murder (para. 16).

[21] In R. v. J.A.W., 2006 BCCA 228, a decision of the British Columbia Court of Appeal, the Court criticized the two-year custodial – two-year probationary sentence imposed on a 26-year-old convicted of impaired driving causing death. The accused had previously been convicted of both impaired and dangerous driving. The accident before the Court involved the accused driving impaired the wrong way on a highway. The sentencing judge, the Appeal Court found, had placed too much focus on the principle of rehabilitation and not enough on the leading principles of deterrence and denunciation. Citing Chief Justice Lamer in R. v. M.(C.A.), to the effect that "...In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence and the moral blameworthiness of the offender" (para. 17), the British Columbia Court of Appeal set aside the lower court's sentence and substituted for it a sentence of four years imprisonment.

Mental Illness

[22] When sentencing, the courts have not been loath to take an offender's mental illness into consideration. In R. v. Dedeckere, 2017 ONCA 799, the Ontario Court of Appeal dealt with the appeal of a 60-year-old man who had been convicted of criminal negligence causing bodily harm in the operation of his vehicle. The accused had struggled with a severe bipolar disorder with which he had been diagnosed in 1980. As a result of a number of personal factors, including the fact that he had just learned he had been disbarred, he became suicidal and attempted to commit suicide by driving his vehicle into a hydro pole located on a rural road. Instead of being killed, the accused survived his suicide attempt. The resulting flying debris from the accident had, however, injured a nearby person.

[23] Originally sentenced to a penitentiary term of two years to be followed by three-year probation and a driving prohibition of six years, the Court of Appeal reduced the accused's sentence to one year of custody followed by one year of probation. At the time the appeal was heard, the accused had already served part of his original sentence. In its decision, the Court was critical of the exclusive emphasis the sentencing judge had placed on the sentencing principles of deterrence and denunciation. The Court found that the sentencing judge had failed to consider the accused's serious mental health issues, which it referred to as "a central component" of the accused's circumstances (para. 16). In failing to give sufficient consideration to the accused's longstanding mental health condition, the sentencing court, the Court of Appeal stated, had failed to consider the principles of restraint and proportionality. The Court further indicated that the principle of specific deterrence had little relevance in the context of attempted suicide and that the sentencing principle of general deterrence was a factor of "decreased significance" in sentencing those suffering from mental illness (para 14).

[24] Echoing the sentencing principles outlined in section 718.1 of the Code, the Court indicated that the moral blameworthiness of the accused was less than that of those who would deliberately attempt to harm others around them. The sentencing judge, it said, had failed to consider that the accused's moral blameworthiness was less than that of someone who had deliberately tried to harm others.

The Victims

[25] At the sentencing hearing, this court heard from the victims' family and friends. There were a number of speakers, the main ones being Hartley Ceasar, his and the late Dawn Ceasar's son, Jack Ceasar, Jack Ceaser's wife, Nicole Ceasar, and Nancy Ceasar, Jack's sister and the daughter of Hartley Ceasar and the late Dawn Ceasar.

[26] Hartley Ceasar suffered serious injuries including a fractured femur and rib fractures (23 to be exact) as a result of the impact. These injuries resulted in him spending three weeks in intensive care and a total of five months both in hospital and in a rehabilitation unit. He suffered great pain and, in particular, suffered the loss of his spouse of almost 50 years. The rib injuries incurred by Hartley Ceasar led to a serious internal cavity infection, resulting from a tear to his bowel. Not initially discovered, this injury led to further concern, for the second time since the accident, that he might not survive the surgery needed to fix it. Since the accident, Hartley Ceasar indicated, he had been unable to look after his home without the assistance of others. He had regularly done so prior to the accident.

[27] Nancy Ceasar, Hartley and Dawn Ceasar's daughter, presented an eloquent Victim Impact Statement. She spoke about the accident's impact on her life and the lives of her father, brother and sister-in-law. It was clear from her Statement that she herself had suffered greatly from the loss of her mother. She spoke about how she had been obliged to put her life on hold in order to provide personal care to her father as a result of his serious injuries. Her response to the crisis visited on her by the accident was laudable. In her Statement, I could sense the goodness of her parents, in particular her mother, in face of the great harm done to her family.

[28] Apart from his mother, Jack Ceasar, a medical doctor working in the Collingwood area, suffered what appear to be the most serious and long-lasting physical injuries from the accident. As a medical doctor, Jack Ceasar was able to give the court a detailed description of the various injuries he had received in the accident. These included a serious injury to one of his pelvic sockets (an acetabular fracture, the acetabulum being one of the sockets for the hip), and injuries to his right hand and the nerves in his right leg and foot. These injuries were described by Jack Ceasar as having a very serious impact on his mobility. They would, he said, likely result in continuing pain for some time into the future and perhaps permanently. These injuries, he concluded, had left him with a reduced ability to go about his personal and family life and caused a serious loss of the manual dexterity required to carry out his medical duties.

[29] On the personal side, Jack Ceasar spoke about the impact of his injuries on his wife and on their relationship. He spoke too of the emotional damage his injuries had caused his sons. He related how his older son, a boy struggling with severe autism, had been stressed by the absence and loss of energy of his father on whom he depended to an extraordinary degree.

[30] The fact that the accident left him with seriously reduced energy and vitality, he stated, would affect both his work and his home life. Since the accident, Jack Ceasar has had to reach deeply into himself in order to find the strength and resolve to return to his employment activities perhaps, as he indicated to the court, much earlier than he should have done because of his financial responsibility for his wife and children. Jack Ceasar's courage in the face of the severe, debilitating injuries inflicted on him in the accident is a testimony to the values instilled in him by his parents.

[31] The last Victim Impact Statement to be noted is that of Nicole Ceasar, Jack Ceasar's wife, and the mother of their two sons. Nicole Ceasar's statement illustrates clearly the impact a horrific accident can have on those who have a relationship with the person or persons who have been killed or severely injured. She spoke about the impact of the injuries suffered by her husband on her own health issues and on the emotional health of their two boys. We do not have a way of quantifying the harm done to Nicole Ceasar and the boys but, again, as with the other persons presenting Victim Impact Statements, it is clear how she and they were emotionally affected by the loss of Dawn Ceasar and the injuries to Hartley Ceasar and Jack Ceasar.

[32] Dawn Ceasar is no longer with us as a result of the accident. She died instantly from the impact of the truck driven by the accused with the vehicle in which she was a passenger. It was important to hear from those who took the time and trouble to provide Victim Impact Statements about how good a human being Dawn Ceasar was and how much she cared for those around her both at home and in the community. Dawn Ceasar walked the talk when it came to living her life as a person of faith. While those who spoke about her at the sentencing hearing could have been expected to say nice things about her, what they did say about her exceeded the usual praise and admiration showered on those persons who have passed away. Reportedly, when her funeral services occurred, the whole community of Levack, a Greater Sudbury community, turned out in support of her family. Dawn Ceasar's family and those who knew and loved her should make sure that the exemplary life she led is not forgotten. It is evident that she was too good a person for some good not to come out of her premature and tragic death. Hopefully, someone in her immediate family or community will do something to ensure that she is remembered.

Dr. Michel Lariviere's Psychological Evidence

[33] The accused did not delay in addressing the issues which underlay the offences committed by him on May 28, 2018. In June 2018, a couple months after the accident, the accused sought out the services of Dr. Michel Lariviere, a clinical, forensic psychologist from the City of Greater Sudbury. Having briefly reviewed Dr. Lariviere's curriculum vitae, I qualified him as an expert in forensic psychology during the course of the sentencing hearing. Dr. Lariviere did not file a psychological report, testifying instead to the nature of his treatment and assessment of the accused.

[34] Dr. Lariviere testified that he had treated the accused for a little over a year, his last major contact with him being in November 2019. Having identified the accused's depressive symptoms when he initially met with him in June 2018, Dr. Lariviere noted that these symptoms had largely disappeared by the summer of 2019. By that time, he said, the accused had become more energized and was anxious to return to work. He recalled that at that point the accused felt better equipped to deal with the stress in his life.

[35] Dr. Lariviere noted that he had provided psychotherapy to the accused using a cognitive behavioural therapy model to help him address the psychological and emotional factors leading him to commit his offences. When asked about his diagnosis of the accused at the time of the accident, Dr. Lariviere testified that based on what he had been able to learn, it was his opinion the accused had suffered a major depressive episode at that time. It was Dr. Lariviere's opinion that the depression being experienced by the accused at the time of the offences would have impaired his thinking. He spoke about how people he had treated in similar circumstances would have described their thinking process when depressed as "slow", their judgment as "poor" and "very indecisive", and how they had "a hard time making decisions of any kind". He noted that person similarly afflicted would describe themselves as being in a "fog", "not feeling very sharp" and "not problem-solving as effectively as they normally do".

[36] When asked about his prognosis for the accused, Dr. Lariviere testified that the accused seemed to have dealt with the depression afflicting him at the time of the offences. Asked to assess the accused's risk of recidivism, Dr. Lariviere gave it as his opinion that such a risk was a "low" one, noting that he could not rule out any risk whatsoever (given applicable psychological norms). Interesting, though, was Dr. Lariviere's observation that the accused constituted more a risk to himself than to others. In reflecting on this remark, I was somewhat puzzled by it for the reason that such a risk seemed to be at the heart of the accused's abortive suicide attempt. It is not unreasonable to conclude that this "risk" to the accused himself underlay what had and could under new circumstances again lead to a similar suicide event in the future.

[37] I am not sure that Dr. Lariviere got to the bottom of the accused's suicide attempt and what lay at the origin of it. He testified that he had treated the accused's presenting symptoms without indicating how and when he thought his suicide ideation had originated. It is clear that what Dr. Lariviere was able to learn about the accused's emotional and psychological health and condition at the time of the accident was provided by third parties, the accused himself having no memory about what was going through his mind immediately before and after the accident. While Dr. Lariviere's knowledge of depression was useful, he failed to directly answer Defence counsel's question about whether the accused was "in his right mind" on the day of the accident. Dr. Lariviere would only concede that the accused was at that point in time depressed and that this depression would have had a bearing on his judgement. His answer indicated that he was not prepared to state as a psychologist that the accused was "not in his right mind" on the day of the accident. True, in his testimony, Dr. Lariviere had used the term "serious depressive episode" to describe the accused's psychological and emotional state on the day of the accident. It seems that Dr. Lariviere's diagnosis was largely based on the accused's written suicide note and information obtained from the accused's sister and third parties who knew him. Dr. Lariviere accepted that the accused had no memory of the events leading up to the accident, including his day at work. All of this suggests that there was not an in-depth assessment of the accused psychological profile at the time of the accident but rather only a functional assessment of his mood and psychology on that occasion.

[38] Asked about the impact of imposing a custodial sentence on the accused, Dr. Lariviere opined that such a sentence would likely have a negative impact on his recovery. The risk of re-occurrence of his depressive illness would, he stated, move from being a low one to a high one. This, he explained, was because if the accused were placed in custody, he would be exposed to individuals with a higher level of depression, his depression consequently rising to meet their level of depression rather than the opposite. While I find this to be an interesting hypothesis, I cannot accept it without some evidence showing this to be the case.

[39] While Dr. Lariviere's opinion on the latter point is an interesting hypothesis, I note that the courts have generally not given an accused's depressive condition much weight in a sentencing. In R. v. Andrzejczak, [2001] O.J. No. 1075, the sentencing judge noted that rehabilitation was not the primary focus in his suicide case where an innocent person had lost his life. Taking into consideration the mitigating factors presented by the accused, the sentencing judge rejected the proposal for a conditional sentence, noting that such a sentence could not give effect to the principle of general deterrence. While he gave the accused credit for her post-offence mitigating behaviour, he sentenced her to a reformatory term rather than the penitentiary term he said she deserved. Noting that a conditional sentence could not reflect the gravity of the offence before him (para. 29) the court felt obliged not to ignore its responsibility "to impose a sentence which in some measure reflects the gravity of that loss and the death of another person".

The Accused

[40] In determining an appropriate sentence for the accused, I have considered the sentencing principles outlined in the Code. I have referred to a number of cases illustrating how the principles set out in sections 718, 718.1 and 718.2 of the Criminal Code have been applied by our courts. Our jurisprudence has developed to interpret certain considerations not immediately obvious from a plain reading of the Code. The principles of restraint, proportionality, totality and similarity flow from a consideration of sections 718.1 and 718.2. Relevant to this case, for example, is paragraph 718.2 (d) which states as a sentencing principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Another example, also relevant to this case is paragraph 718.2 (e), where the court is directed in sentencing an accused to use all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community.

[41] In the present case, there is no issue as to the gravity of the offence, given the death of one victim and the serious physical injuries inflicted on two other victims. The accident which gives rise to the present charges resulted in horrific and lifelong injuries to those who survived it. The greatest difficulty in this matter has been how to determine the degree of responsibility of the offender.

[42] Pursuant to section 718.2 of the Code, I have considered both the mitigating and the aggravating features of the accused's conduct relating to the accident. In terms of the mitigating factors, I note that of remorse. The accused is very remorseful about what he has done to the victims of his offences. His remorse was quite evident at the sentencing hearing when he turned around to face the Ceasar family and their friends in order to apologize to them for the harm he had inflicted on them.

[43] Then, there is the accused's plea of guilt to the two offences with which he was charged. The successful prosecution of a criminal law case is never guaranteed. I have found that even when a conviction looks inevitable, there are many evidentiary hurdles to be encountered in the prosecution of an offence. Not all cases meriting conviction have a guaranteed outcome, even when the evidence in support of conviction seems overwhelming. In this case, the accused pled guilty and spared the accident survivors and others with relevant evidence to offer from having to testify in order to establish the elements of the offences before the court. Unlike some other cases, the accused's plea spared the Ceasar family and those supporting them further trauma. The accused deserves credit for not forcing them to go through this process.

[44] As noted earlier, the accused acted quickly in seeking treatment for the emotional and psychological problems underpinning his offences. In doing so, he addressed, to some degree at least, the potential for committing a similar act in the future. It is not uncommon for those who commit criminal offences to justify their behaviour and go into denial, thereby setting the stage for further re-offending and harm to innocent victims in the future.

[45] Again, the accused has obtained re-employment. After the accident, he refused to sit idly by, making instead some effort to put his own life back on track. Added to this is the fact that he has no criminal record as well as the fact that since the accident occurred, he has complied with his bail release conditions.

[46] While the aggravating factors evident in the accused's conduct with respect to the accident are few, I find that they are very serious. The day prior to the commission of his offences, the accused sought out help and support from his sister and his closest friend. He appears to have understood that clinical assistance was available to him, promising his sister to avail himself of that help the next day, the day of the accident. Instead of doing so, he decided to go to work that day. At some point during that day he made the decision to continue with his suicide plan.

[47] I cannot conclude that because around the time of the accident the accused was experiencing a severe, depressive episode, which in some unexplained way had an impact on his thinking, he was incapable of making rational decisions. While we may accept Dr. Lariviere's comment that the accused's suicide attempt was a call for help rather than attention-getting behavior, it is clear that he had rejected the help he needed, help which was clearly available to him. He did not go to the Emergency Department of Health Sciences North or to the Hospital's psychiatric facility located at the Kirkwood site in Sudbury after his return to Sudbury the evening before the accident. Nor did he go there either in the morning or the afternoon of May 28, 2018.

[48] In his evidence, Dr. Lariviere commented that between 10 and 15% of the population suffers from some form of depressive illness. From past psychological evidence, we know depression to be a mental health disorder which can be remedied to a great degree with appropriate intervention and care. What we do know about the accused is that while he was experiencing a depressive episode at the time of the accident, he was not suffering from a severe mental illness such as schizophrenia, schizoaffective disorder or bipolar disorder at the time of the accident. As noted earlier, the courts have not taken depression, even serious depression, as a major mitigating factor in sentencing. Sentencing courts have, however, been directed by our Court of Appeal to consider mental illness as a mitigating factor in sentencing, particularly on those occasions when an accused person can establish a history of serious mental illness. (see Dedeckere)

[49] While the accused had not committed any criminal acts prior to his suicide attempt, it appears that he had become disillusioned with himself and his treatment of other persons in a close relationship with him. If he suffered from a lack of self-esteem, it may well have been the result of poor conduct on his part towards others in his life. Whatever it was that was ailing him, it did not justify his recklessness in targeting an unsuspecting tractor-trailer driver and others on the highway when he decided to use a company truck to kill himself. In the end, it seems that the accused was unable to deal with his poor self-image in the acceptable way in which people suffering from depression usually bring themselves to do. Unfortunately, members of the Ceasar family were not consulted about the merits of the choices made by the accused on the 27th and 28th of May 2018. One of them is now dead, while two others are to endure disability and loss of quality of life for the rest of their lives.

[50] In R. v. Brewer, 2014 BCSC 1075, the court dealt with a motor vehicle accident involving 13 victims. The accused was charged with two counts of criminal negligence arising out of his drug-impaired driving. The accused had attempted to commit suicide by driving his Ford 350 truck into oncoming traffic at a high rate of speed. The court imposed a concurrent sentence of 4½ years' incarceration, together with a 10-year driving prohibition on the accused for these offences. In assessing the criminality of these offences, the court (para. 46) cited both the Ontario Court of Appeal decision in R. v. Christink, 2012 ONCA 141, and the Alberta Court of Appeal in decision in R. v. Rhyason, 2007 ABCA 119, stating:

A proportionate sentence must reflect the nature of the harm caused by an offender convicted of a driving offence because such harm is not just an academic component of the offence.… Sentences imposed must recognize that driving offences are true crimes which cause grievous injuries as well as lifelong harm for victims and their families. Offenders convicted of driving offences should therefore be dealt with accordingly. Real people suffer or have to live without their loved ones because of driving offences. Sentences imposed must recognize that.

Conditional Sentence

[51] Clearly, this is not a case for the imposition of a conditional sentence. Such a sentence would not properly address the sentencing principles outlined in the Criminal Code and, in particular, the principles of denunciation and general deterrence. While unusual, the offences before the court are not unknown to courts in the rest of Canada. A survey of the case law reveals that such offences are committed across the country. When a person dies and two other persons are condemned to lifelong suffering as a result of what amounts in reality to a selfish act on the part of the accused, his remorse, his attempts at his physical and mental rehabilitation and his reintegration into society cannot save him from accountability for the harm he has done and the moral culpability that gave rise to it.

Sentence

[52] Taking into account the evidence in this matter and the sentencing principles I have reviewed as well as the amount of time the accused has been under bail supervision, I impose on the accused the following sentence:

1) Incarceration

The accused will serve a term of incarceration of 15 months, with a recommendation that this sentence be served at either the Ontario Correctional Institute or the St. Lawrence Centre.

2) Probation

The accused will be placed on probation for a term of three years, with the following conditions:

a. You shall report to a probation officer within 48 hours after your release from custody;

b. You shall participate in such counselling and therapy as your probation officer directs and provide to him or her proof of your participation in such programming;

c. Pursuant to section 259 (2) of the Criminal Code you shall not operate a motor vehicle anywhere in Canada for a period of one (1) year.

d. Following the expiry of the prohibition noted in paragraph (c) you will not operate a motor vehicle on any highway in Canada, except as directly permitted by your employer and strictly for your employer's purposes. You are not to drive a motorized vehicle anywhere in Canada other than as described in this condition for the balance of your probationary term;

e. For the purposes of your rehabilitation and under the direction of your probation officer, you shall perform 150 hours of community service addressing groups identified to you by your probation officer, which groups have for their purpose the mental health betterment of those served by them and the safety of those using the roads and highways of Canada.

3) DNA Order

There will be a DNA order in the usual form pursuant to section 487.051 of the Criminal Code.

4) Weapons Prohibition

There will be a 10 year weapons prohibition order pursuant to section 109 of the Criminal Code.

Released: December 13, 2019

Signed: Justice André L. Guay