ONTARIO COURT OF JUSTICE

CITATION: R. v. Hutchinson, 2022 ONCJ 276

DATE: 2022 06 14

COURT FILE No.: Halton 19 - 4106

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Haleigh Anne HUTCHINSON

Before Justice D.A. Harris

Heard on September 21, 2021, November 30, 2021, January 13, 2022, March 29, 2022 and May 6, 2022.

Reasons for Sentence released on June 14, 2022

Carly Eastwood, Renée H. Mahoney and Michael Michaud... counsel for the Crown

Brian Heller and Russell Robinson-Grant............................................................................. ................................................................... counsel for the defendant Haleigh Hutchinson

D.A. HARRIS J.

[1] Counsel for Ms. Hutchinson began his submissions by describing this case as a tragedy for all involved in it. If anything, that is an understatement.

[2] Sadly, it is a case where, as time has passed, circumstances have only worsened for everyone.

THE OFFENCE

[3] Shortly after 12:02 a.m. on August 18th, 2019, Haleigh Hutchinson was driving her Jeep Compass motor vehicle northbound on Trafalgar Road, north of Lower Base Line in the Town of Milton. A short distance ahead, Antonio Bassil was riding his E-Bike also northbound in the right-hand lane. The speed limit on Trafalgar Road in this area was 80 km per hour and there were two lanes for northbound traffic.

[4] Ms. Hutchinson was driving in the right lane, exceeding the speed limit. Wanting to pass a slower moving car in front of her in that right lane (Car X) she first allowed an unidentified car (Car Y) travelling in the left lane to pass by her, whereupon she immediately pulled into the left lane and increased her speed, thus passing Car X and keeping up to and in close proximity with Car Y which was in front of her in the left lane. This passing manoeuvre occurred approximately six to seven seconds prior to the collision with Mr. Bassil.

[5] The two cars driving in tandem then both moved to pass a slower vehicle (Car Z) in that left lane by changing to the right lane. As the two vehicles approached Mr. Bassil’s E-Bike which was in the right-hand lane, Car Y changed to the left lane directly in front of Car Z. Due to Ms. Hutchinson’s close proximity to Car Y, and her excessive speed, she was unable to avoid Mr. Bassil and collided with him at a speed of approximately 112 km per hour. Mr. Bassil was ejected from his E-Bike and sustained life altering head trauma and other injuries.

[6] Approximately 3.3 seconds prior to the collision Ms. Hutchinson’s speed was approximately 131 km per hour.

[7] When paramedics arrived on scene they treated Mr. Bassil for his head injury and transported him to hospital.

[8] Ms. Hutchinson stayed on scene and provided police with a statement, as did her front passenger. Ms. Hutchinson did not report any injuries.

[9] The driver of Car Y did not remain on scene and was never located by police.

[10] Counsel for Ms. Hutchinson also relied on the following facts which were contained in the Accident Reconstruction Report.

[11] Trafalgar Road, in that area, was dark and there were no streetlights.

[12] Mr. Bassil’s E-Bike had been modified so as to disable the speed regulator, contrary to the Highway Traffic Act.

[13] Though Mr. Bassil was wearing a helmet, it was missing a piece which prevented it from being properly secured to his head, also contrary to the Highway Traffic Act.

[14] At the time of the collision, the E-Bike was not situated as close as practicable to the right-hand curb, instead located 1.88 metres west of the fog line on the right side of the road.

[15] As a result of his injuries, Mr. Basil became an in-patient at a long-term complex care facility, remaining in a coma vigil state and requiring 2-person 24 hour per day care.

[16] On January 7, 2022, Antonio Bassil died.

THE COURT PROCEEDINGS

[17] Ms. Hutchinson was originally charged with dangerous operation of a conveyance causing bodily harm to Antonio Bassil, contrary to section 320.13(2) of the Criminal Code.

[18] After she retained current legal counsel, her case proceeded through a series of discussions with Crown counsel, followed by a number of Judicial Pre-trials in which I was involved. Throughout these discussions, her intention was to plead guilty to the offence charged.

[19] On September 21, 2021 she did plead guilty to dangerous operation of a conveyance causing bodily harm to Antonio Bassil.

[20] Crown counsel elected to proceed by indictment.

[21] The matter was adjourned so that I would be provided with certain information and counsel could make their submissions as to the appropriate sentence.

[22] On November 30, 2021, Crown counsel suggested that I should impose a sentence of imprisonment for 18 months followed by probation. She asked that I prohibit Ms. Hutchinson from driving for 10 years. Finally, she requested a DNA order.

[23] Counsel for Ms. Hutchinson suggested that I impose a conditional sentence of imprisonment for between 18 months and two years less one day followed by probation for two years. He also asked that I prohibit her from driving for three years. He argued against a DNA order.

[24] The case was adjourned to January 13, 2022 for sentencing.

[25] On January 7, 2022, Antonio Bassil was pronounced dead at Trillium Mississauga Hospital. The Coroner’s Report stated that “the immediate cause of death is determined to be complications of blunt force trauma, due to helmeted driver of an e-bike being struck by a speeding motor vehicle, the manner of death was that of an accident”.

[26] On January 13, 2022, Crown counsel asked for the proceedings to be adjourned so that she could obtain a copy of that Coroner’s report and consider her position. I granted this adjournment.

[27] This was followed by a series of discussions between her and counsel for Ms. Hutchinson.

[28] As a result of those discussions, on March 29, 2022, the Information was amended, on consent, to charge Ms. Hutchinson with dangerous operation of a conveyance causing death to Antonio Bassil, contrary to section 320.13(3) of the Criminal Code. This is an indictable offence. Ms. Hutchinson informed me that her election and plea were to remain the same. All parties agreed that all previously admitted facts and exhibits were to continue to apply.

[29] The matter was adjourned to May 6, 2022 for further submissions to sentence.

[30] On that day Crown Counsel argued that a sentence of imprisonment for three years was appropriate.

[31] The position of counsel for Ms. Hutchinson remained unchanged.

[32] I find that a conditional sentence of imprisonment for two years less one day, followed by probation for two years is the appropriate sentence. That should be accompanied by a driving prohibition for 10 years.

[33] My reasons for this, in addition to the facts of the offence, are set out under the following headings:

(1) The impact on the victims,

(2) The background of Ms. Hutchinson,

(3) The law regarding conditional sentences of imprisonment,

(4) The fundamental purpose and principles of sentencing, and

(5) Analysis.

VICTIM IMPACT

[34] I was initially provided with medical records for Antonio Bassil and with a Victim Impact Statement prepared by his brother on behalf of all members of his family.

[35] Mr. Bassil was seen at a trauma centre where he underwent a series of procedures. He was found to have suffered the following injuries:

(1) cardiac arrest necessitating CPR two times,

(2) a bilateral hemopneumothorax,

(3) a closed head injury which consisted of right acute subdural hematoma, a traumatic subarachnoid hemorrhage and cerebral contusion,

(4) a left cerebellar hemisphere hemorrhage,

(5) a diffused brain edema,

(6) a brain stem contusion,

(7) post-traumatic hydrocephalus,

(8) cranial surgery complications and multiple facial and skull-based bone fractures,

(9) a pelvic fracture and two spinal fractures,

(10) extremity fractures to his left humeral shaft, and

(11) a left femoral neck facture.

[36] As a result, Mr. Bassil became an in-patient at a long-term complex care facility where he remained in a coma vigil state. He required two persons 24 hours per day care.

[37] The original Victim Impact Statement makes it clear that this motor vehicle collision had a severe impact on the Bassil family. I have reproduced this document in full:

They say death is the worst tragedy that can happen to a family, but I can assure you it is not. This victim impact statement allows us to tell the court how the accused actions affected us emotionally, physically, financially, and if we may have any fears. Well, here it is.

In the afternoon of August, the eighteenth 2019, my sister received a call from a doctor saying that my brother, Antonio, has had a terrible accident, and that he was in a critical situation. The doctor explained more about what happened, and how they are handling him. After a few minutes my mother, and my sister both started crying, they couldn’t continue talking to the doctor, so I did. The doctor reexplained to me what happened, and I can tell you I was in such a shock my body started to shiver, my English turned into Chinese, and I too was about to cry. I remember the doctor saying, “ I want you to know that we will do whatever we can for your brother but just so you know his situation is very critical and in such cases people only have a 10% survival rate” to which I replied: “I don’t care what procedure you take or how expensive it will be just save my brothers life” and then we hung up. I remember the whole conversation vividly as if it were a few moments ago…That call was our first emotional impact, and that was just the tip of the iceberg.

At that time my father was in Colombia on a business trip with my older brother. It was 3 a.m. when I called him. He directly woke up my brother and flew to Canada, paying almost 2,000 USD for each ticket, and leaving behind all the business they were supposed to do. Also, my father was coming back to Lebanon in two weeks, but since the call he hasn’t been home, It’s been two years.

As a family, we used to gather around the table to eat lunch and dinner, sometimes we would make jokes or even prank each other and have a good laugh about it. We haven’t had the opportunity to do so, in two years, till this day. Now every member of the family is in a different location in Lebanon, all working in synchronization so that everything could run smoothly and keep this ship afloat.

Stress has consumed us, its our daily routine now. We wake up, have breakfast, call the doctors setup things, spend hours commuting by bus, visit and take care of Antonio (shave him, clean him, learn how to properly suction him, etc. ), come back at night and sleep just to repeat it all the next day. Every day my father spends hours searching for better medical facilities, better treatments, and the worst part of is that Antonio is still not stable. After two years of going in and out of the ICU his situation could change at any given time. Every time the hospital or a medical facility calls, we prepare ourselves for bad news.

A few years ago, before this accident, if I asked my father to race me(running) he would beat me and win the race. A 65-year-old man beats a 28-year-old man. His health was way better than mine. But now, every now and then while my father is lifting his glass of water, his hands shiver due to the amount of stress we must deal with on daily basis. My mother, strength wasn’t at its peak, but it wasn’t to a point where she barely has the power to open or close the windows (the windows slide up and down) most of the time she asks me to do it for her when she tries and fails. A woman who used to hike with me and often take my dogs for a walk, doesn’t have the strength to open the windows anymore.

Moving to 3 cities in just two years is not good news, it’s a sign of instability, and with instability comes various problems, Economical is one of them. After the call my father’s business plan in Colombia was terminated. I had to shutdown my business in Lebanon, move to Canada and aid my family with my brother’s case. Every time I thought things were stable and I could finally apply for a job, doctors call and tell us they are going to move Antonio to another facility, so we need to move too. For that reason, I have been unemployed since the accident. When it came to business compensation both, my father and I, had to drop our rights to be compensated for, since that compensation would directly come out of the amount that Antonio has been compensated for from insurance.

Every single day we are tormented because of the accused recklessness, everyday we wake up and ask when is this going to end?? How can we make it end?? How can we make things go back to normal? The simple and hurtful reality is that we can’t, my family, my brother, and myself must go through this day in day out. Riding this torture roller coaster, and that is for us who aren’t hooked onto any machine to stay alive.

I can’t imagine what Antonio has been through. How much pain he had to endure especially that he didn’t go into a coma, He felt and is still feeling everything. I wonder what my brother would do or say if he had the ability to express himself. One day my mother went to check up on my brother and his body was so swollen his testicles were the size of an orange. Another day he was in so much pain he was crying without making any sound, just tears streaming down his face. Those are just two scenarios of the two years Antonio has been and will have to endure. Antonio has been through over 150 different scans and exams, complicated surgeries, and more. Another thing that resulted of the accident is that as his family, non of us had a word in any proceeding procedure till we have obtained a Power of attorney; it took us almost 6 months to obtain it. By that time my brother was being used as an educational subject, the hospital allowed new med students to learn how to do stuff on him without anyone’s consent; we were right by his side yet so powerless. I remember my parents very well through that phase. All my father could to is lose his mind and try to speak some logic with the hospital, but I guess they are just soulless people now. My mother cried every time my brother had to go through another student, her words came down in the form of tears. Both witnessed everything and both were completely powerless.

Antonio was an ambitious man, he liked cars too. He wanted to have his own car dealership. He wanted to ship cars from Canada to Lebanon and sell them. Obviously, this couldn’t be a one-man job. So he told my other brother, Haime, to join and they both would work on it and split the revenue in half. It would have been a great business for both of my siblings. Another thing that we didn’t know until his friend told me. He was planning a surprise visit to Lebanon, he still needed to save a few hundred dollars to visit us. Now we’re the ones who are visiting him, in the Hospital.

If you were to ask us to rate how much the accused recklessness has impacted our lives on a scale from 1 – 10, a straight up 1000 would be an underrating. And to be honest writing this down wasn’t easy, there’s a lot of 2020 which couldn’t write down simply because going through that memory lane will hurt a lot more. There is nothing that will hit harder than life, thankfully we’re a Christian family and I am sure that if it wasn’t for Jesus Christ, we would have been over with by now. It is because of him we still stand on our feet.

I know the accused didn’t wake up in the morning and said “Hey I am going to go and cause problems and ruin lives today” an accident is called an accident for a reason, but this is the unfortunate result of poor and reckless decision making.

This is our victim impact statement.

[38] Following Mr. Bassil’s death, I was provided with two additional Victim Impact Statements.

[39] Stephan Bassil wrote:

Victim impact statement after my brothers’ passing

Emotional and Psychological:

After my brother’s passing it is only natural to be struck again, but this time it’s different. Every member of the family has been impacted differently emotionally, psychologically, financially, etc.

If you were to visit us, at first you would think we have moved on with our lives and everything is back to normal until we start talking about my brother. Both of my parents dedicated all their time to Antonio after the accident and now that my brother is gone, they feel empty, they feel like there’s a hole instead of their chest. Both of my parents have their hearts shattered into a million pieces. My mother told me that sometimes she wakes up at 6 in the morning thinking that she must get up and go to the hospital to check up on Antonio, only to realize that she is disoriented and that my brother has passed away. No parent should live the day where they attend the funeral of their own child. It hurts, it hurts so bad that every time any one of my parents speaks about my brother, they are not able to finish their sentences without either having tears in their eyes or pausing to take a breath to continue what they were trying to say. Antonio is my parents’ firstborn; he was the smile on both of their faces and the beat of their hearts.

My siblings were devastated by the bad news too. My sister kept on crying till the day we arrived in Lebanon. And, even when we told her that Antonio had her name listed as an inheritor of a few things she totally broke down and cried. All she said was his nickname while shaking her head left and right as if there were a million thoughts going through her mind per second. At that point, all I could do was hug her and help her calm down.

As for myself, Stephan Bassil, the day my brother passed away I was on my way to work when it all began. I reached work and punched in my name and number, and went to where I was assigned, P.O.S. 5 minutes in and my phone started to ring, I checked it and it was my father, there my heart sank into my stomach, and I lost total focus. The 2nd time he called I excused myself and my father told me to leave everything, bring my mother, and head to the hospital. My brothers’ blood oxygen has dropped to 10% and he is in a critical situation, so I did. When I reached the hotel, I checked the room my mother had already left. 10 minutes later my father called again and asked me: where are you guys? To which I answered: “it looks like mom left before me” then my father said: “alright, come as soon as possible because your brother has left us”. I heard that last bit and broke down completely and started crying. I called my mom and told her; she was already at the hospital but still not in the room to see my brother. when I told her she ran into the room to see my brother lifeless and broke down too. I think her phone fell out of her hand because I could hear her crying and saying my brothers’ name, but no interaction with me. So, I hung up the phone and went straight to the hospital. When I reached there, I saw my brother all yellowish and I broke down again. I went and hugged him, kiss him, and said my goodbyes. I thought I was prepared for such day, but nothing in this world could prepare anyone for that kind of situation. It truly hits like a train and keeps on till God knows when. I know I still can’t accept the idea of saying that “he died” even when I am speaking in my mother language, Arabic. I try to ease it on myself by saying that he “passed away” instead.

The other day when I was at the doctor’s clinic waiting for my turn, across me there were two kids, siblings, sitting next to each other and the older one was hugging his little sibling while she slept on him. They reminded me of my brother when we were kids, he used to do the same thing.

Such tragedies leave deep scars, scars that not even time can heal completely; every now and then these feelings resurface and make us cry whether it was my father, mother, myself, or any of my siblings.

Financial:

As I mentioned in my prior Victim impact statement, we all suffered financially whether it is from closing my business to moving to a whole different country. All expenses in Canada came out of my fathers’ pocket. My father and I were asked to submit our losses so that we could be compensated for, and so we did. But when we knew that it would come out of what was dedicated for Antonio’s medical bills, we immediately said these will stay for Antonio. But now that Antonio is gone, we both know it is only fair to ask that the financial subject be rediscussed. Moreover, I had a job at Starbucks as a barista working for 14.6 CAD/hour. When I was job hunting and applied for the position, I had plans to stay there for at least a year, not a month. My brother’s passing changed everything; I resigned from my position to assist my family with everything needed both in Canada and In Lebanon. So, my father and I ask that the financial subject be rediscussed so that we could be compensated for both of our losses.

Physical/Health:

Usually, when someone goes through stress his/her health goes through hell and so my parents’ health did. Upon leaving Canada, all the stress they went through these two and a half years started to show. My moms’ Osteoporosis advanced to a point where she fractured two of her vertebrates upon touch-down in Paris, her doctor said that stress is the biggest contributor to Osteoporosis advancement.

My father now has Osteoarthritis in his hip joint (his mobility and range of motion in that area have decreased significantly) also due to stress and everything we went through in these two and a half years. Both of my parents can’t come and go as they please, my mother must wear a back brace for at least 4-6 months hoping that her fractures cure, but till then she is housebound. Now, both problems can be cured & hopefully my parents’ health will go back to normal, but at such age, no one should go through what they both went through. Two and a half years of full-on dedication to Antonio, then Antonio passing away, and now health problems due to those two years and a half is just too much on them.

[40] Namen Bassil wrote:

I am Namen Bassil, the second eldest of the family. It is hard to put to words something so emotional and materialize something only the heart can understand.

My brother Antonio, God rest his soul, is four years older than me. An accurate explanation of the connection I had with my brother would be that he was a part of me and losing him left a gap that can’t be filled. My brother took care of me ever since I was a 2 years old kid preparing my breakfast and baths, and then through school helping me with my homework, and furthermore through my teenage years giving me girl advise and relationship advise. My brother would take me everywhere he went introducing me to his friends. We were best friends. I shared everything with him; every happy/sad moment, every achievement, every secret… everything. And now that is gone. Antonio left Lebanon in 2013 in search of a better life in Canada since the situation started to decline in Lebanon. We thought that that was a sad day but little did we know. He left with high hopes of achievements and wealth. He left with big plans and goals. Now nothing is left but memories. In 2018 I got married but in pursuit of his career, he couldn’t attend. And now my we had our first born, the first newborn in our family, and he will never meet her. I dream of him constantly; most of the time we would be messing around pranking each other, other times he would be giving me advise and sometimes we would be arguing. Every time I wake up after a dream all I can think of with my eyes full of tears: I wish the dream would have lasted longer to see his face and appreciate his smile and enjoy his voice. I wish I had more time with him to tell him and show him how much I love him and how much I’ve missed him. Last time I saw him was when he left Lebanon. Who knew it would be the last time. Because of the time difference and both of our busy schedules, we would barely talk, just text or voice message through Whatsapp every once in a while. If only I knew! I would have freed up my entire schedule and made more time for our conversations and call daily. I would have visited to spend more time with him. I would have made sure he was at my wedding which he was supposed to be my best man. Nothing that I wrote here can ever explain the emotional impact and pain of my brother’s accident and death.

Financially, the accident also had a huge impact on us. To clarify, Lebanon is going through the worst economic crisis in the history of the modern world. The national currency has devalued by nearly 20 times in only three years and the banks and central bank have hold of the depositor’s savings. This has been going on since Oct. 2019. For starters, Antonio was a finance major and so we would all go to him for financial advice. Any finance major or even anyone slightly related to the field could have predicted that a disaster was about to happen. Not having anyone to consult and also not having a clear mind, we left our money in the banks where they still are till this day unable to handle and with 0% interest rate since Oct. 2019. In addition to that, and as a result of my brother’s accident, my father had to up and leave everything in place to be by Antonio’s side and to take care of him. I had to be in his place taking care of the “errands” such as official paperwork for Antonio (before his passing), official paperwork for my father (after my grandmother passed in 2020), my father’s investments and involvements…etc.

These errands took a lot of my time which eventually led me to quit my job in an attempt to better organize my schedule and prioritize the tasks I have. Me quitting my job was also tied to the fact that no employer will give his supposedly full-time employee half the day off twice and three times per week.

Terminating my contract with my employer had penalties but by doing that my wife and I lost the sense of security (financial) that came with a well-paid job in times of crisis. Now that my brother passed I have been trying to find a job that pays half as well as my previous job paid which is nearly to impossible amid the financial crisis.

Adding to that, the psychological effect is the worst. The stress and anxiety we went through and suffered the first couple of months after the accident was intense. We had no sleep, we were anxious all the time especially when the phone rang. We always expected the worst. Once Antonio’s condition was stable we felt relieved for a while until again his condition worsened. Again stress and anxiety, reflux, insomnia… this went on for two years and 5 months until Antonio passed. I didn’t get to say “goodbye” to the brother who supported me, cared for me, protected me, and looked after me. He was my backbone.

You never know what pain is or feels like until you lose some close to you as close as I was with my elder brother. A simple photo will drown you in tears for hours.

[41] Crown counsel conceded that Stephan Bassil was incorrect in his analysis of the insurance company payments in this case.

[42] There has been some significant financial restitution.

[43] A tort claim brought by the family against Ms. Hutchinson has been settled and her insurance company has paid out almost $150,000 to six family members in satisfaction of their claims. In addition, a structured settlement provided for further monthly payments of $4,659.26 for the rest of Antonio Bassil’s life, apparently to cover the ongoing costs of his care. Now that he has died, these payments will continue up to July 1, 2039, but will now be paid to the Estate of Antonio Bassil. More than $525,000 was paid to cover legal fees and disbursements.

[44] A separate claim for accident benefits is still ongoing.

[45] Crown counsel also did not disagree when I pointed out that I would not be holding Ms. Hutchinson responsible for the fact that the Lebanese economy is in such dire straits.

BACKGROUND OF HALEIGH HUTCHINSON

[46] I was initially provided with:

(1) a document entitled “Haleigh Hutchinson’s Personal Background’,

(2) a psychiatric assessment by Dr. Hy Bloom,

(3) nine reference letters,

(4) an Electronic Supervision Program Technological Report, and

(5) a copy of Ms. Hutchinson’s Highway Traffic Act Record.

[47] Counsel for Ms. Hutchinson advised me on May 6, 2022 of further developments in her life.

[48] From these, I learned the following.

[49] Haleigh Hutchinson was born March 22, 1995. She turned 27 in March and was 24 at the time of this offence.

[50] She is an only child. She was born in Bronte (Oakville) and lived there until she was 3 years old. Her family then moved to River Oaks (also Oakville). She lived in that house until 2010 when her parents separated. She then moved about 20 houses away to live with her mother, Hilary Hutchinson, in a smaller house. She lived at that house until 2016, when her mother moved to the southeast part of Burlington, where both Ms. Hutchinson and her mother currently reside.

[51] Ms. Hutchinson’s father was a consistent problem in her life.

[52] There is a long line of abuse, alcohol problems, and depression on his side of the family.

[53] Ms. Hutchinson remembers seeing her father physically assault her mother when she was around 4 or 5 years old.

[54] She would frequently observe him being verbally abusive to her mother.

[55] He often drove while drunk. He totaled his car when Ms. Hutchinson was 3 years old. On another occasion, he ended up driving home on the rims of a car after an accident.

[56] When she was about 8 years old, she was in the car when he fell asleep at the wheel. Fortunately, he woke up without further incident. She insisted on getting out and walking home. The walk took her about an hour.

[57] He was an embarrassment in a number of other ways.

[58] He was often seen drinking alone at bars.

[59] Once, he threatened to “beat the living shit” out of the father of one of her soccer teammates in front of a number of the other parents.

[60] On another occasion, he got drunk and passed out on a neighbour’s lawn where he was seen by some of Ms. Hutchinson’s peers on the next morning’s walk to school.

[61] When Ms. Hutchinson was 12 or 13 years old, he was three hours late picking her up from school. She covered for him with her teachers. Eventually, she walked home and found him passed out in the driver’s seat of the car, in the driveway.

[62] Around the same time, her mother went away on business for a week or so. Her father went on a bender and for about three days, his daughter had limited food. On the third day, an aunt called to check on her and hearing what was happening called a taxi to take Ms. Hutchinson to the aunt’s home in Ajax.

[63] She was never left alone with her father again.

[64] Mother cut all ties with father in 2010. They sold their house. They separated but did not divorce. He did not offer any financial support for his wife or his daughter.

[65] Mother continued to work for IBM in various roles following the separation. She is currently on disability.

[66] In 2011, her mother broke her back. Ms. Hutchinson called her father in a panic as she could not drive to the hospital. She asked for a ride. He replied “I’m too fucked up to deal with your shit. I hope she dies and I hope you die.”

[67] Her mother’s injuries included a shattered pelvis, shattered back, and broken ribs. Doctors deemed it unsafe to operate and warned Ms. Hutchinson to prepare herself for the possibility that her mother would die. Mother managed to pull through, however, enduring an arduous recovery.

[68] While she was in hospital, extensive bloodwork was done and she was diagnosed with a rare blood disease that can morph into leukemia.

[69] In November 2018, a doctor took a bone marrow biopsy and she was diagnosed with leukemia. She went on disability leave from work for her treatment. She went through four rounds of chemotherapy in April-July of 2019. She did not handle the treatment well. Her white blood cell count fell very low and she got Shingles. She missed two treatments. In consultation with her doctors, in early August of 2019, she made the difficult decision to abort the chemotherapy. About one week after, on August 18, 2019, Ms. Hutchinson was involved in the collision that resulted in the current charge.

[70] In 2020, her mother gradually returned to work.

[71] In the summer of 2020, she found a black spot on her head. This was eventually determined to be a malignant melanoma in transit, meaning the cancer had already hit her lymph system.

[72] She has had surgery for this and begun immunotherapy. Further tests however have disclosed blood clots in her lungs and two more biopsies from her forehead came back positive for melanoma.

[73] She has many doctors, including an oncologist, a blood clot specialist, and a skin cancer specialist.

[74] Ms. Hutchinson completed high school in 2013. She then attended Wilfred Laurier University in Waterloo, where she studied psychology and criminology. She was there for four years, departing in the spring of 2017, and is currently two courses short of a degree.

[75] During her second year her ex-boyfriend began stalking her. A roommate called the police because he was showing up late at night at their apartment. Ms. Hutchinson changed classes to avoid him and blocked his phone number. He still called with a hidden caller ID over 300 times a day. Eventually, the harassment tapered off.

[76] That same year, someone broke into their apartment and stole her laptop. She lost all her notes. She deferred two exams because of this, never catching up, which is why she is still two credits short.

[77] She left Laurier in February or March of 2017 and returned home following an incident with a roommate.

[78] She did not return to school to complete her last credits.

[79] She has worked at the Keg since she was 16 working at a number of locations.

[80] She began as a hostess while still in high school and has since worked for the Keg in almost every capacity. She started serving when she was 18. While at Laurier, she would take the GO bus home on weekends and work part-time at the Keg.

[81] When old enough, she would both serve and tend bar.

[82] For a time she had a second job in Guest Services for WestJet at Pearson Airport and was working up to 80 hours per week between the two jobs.

[83] In October of 2018, she was approached about becoming a manager at the Keg in Mississauga.

[84] She had to choose between the two jobs and chose the Keg.

[85] In 2019, she started manager training which took only six weeks, as opposed to the regular 12-15 weeks. Her first shift as manager was April 1, 2019.

[86] Throughout her time at the Keg, she has been described as a valued employee. She has received positive reviews from her bosses, fellow employees and from customers.

[87] Her work schedule is consistently five days a week with unpredictable hours.

[88] Recognizing that she will lose her license, she made efforts to get transferred from the Keg’s Mississauga location, to their Burlington location. This transfer took place allowing her to carpool, Uber, or take public transit to and from work.

[89] She also has a history of active volunteer work.

[90] In light of all that she has experienced, it is really not surprising that Ms. Hutchinson has struggled with anxiety, depression, and obsessive-compulsive Disorder (OCD) for much of her life. She was diagnosed with clinical depression by her first doctor when she was in her early teens. She switched doctors in 2011 and the new doctor diagnosed her with OCD, anxiety disorder, and confirmed the prior diagnosis of clinical depression.

[91] In 2012-2013, her struggles with mental illness were particularly difficult. Her anxiety and depression led to a lot of weight loss and not eating. She says this was exacerbated by a relationship she was in at the time. When the relationship ended in first year university, she put some weight back on.

[92] Throughout her life, she has been prescribed Prozac, Zoloft, Lorazepam, and sleeping pills. She finds that the anxiety disorder is the condition that impacts her most. She has found that it has gotten worse in recent years.

[93] The above medical diagnoses all predate the motor vehicle collision.

[94] Recently she has taken steps to address her worsening anxiety. She was referred by her family doctor to the Anxiety Treatment and Research Clinic at St. Joseph’s Hospital in Hamilton.

[95] Ms. Hutchinson had an initial intake appointment there on May 17, 2021.

[96] She subsequently had two Zoom appointments with Dr. Neda Abedi, a psychiatrist on May 20, 2021 and on August 16, 2021.

[97] She had a two-hour group session with the clinic on September 15, 2021 and after September 24, 2021, she met once a week by way of Zoom with a resident for a one-hour therapy session.

[98] Dr. Abedi and Dr. Bloom have both diagnosed her with posttraumatic stress disorder (PTSD) related to the collision. They note that she is experiencing nightmares, flashbacks, intrusive memories and a negative perspective of herself and her future.

[99] She is currently on two medications, both prescribed by Dr. Abedi. These are Cipralex, an anti-depressant, and Prazosin hci, for nightmares.

[100] There is no history of any problems with alcohol or drugs. She did however tell Dr. Bloom that she has been self-medicating to a degree with wine since the collision. She has also used cannabis occasionally.

[101] Ms. Hutchinson was living alone with her mother and their dog up until the time that I heard the initial submissions to sentence. She spent her days working and caring for her mother.

[102] As her mother is severely immunocompromised, Ms. Hutchinson was responsible for buying groceries and running any other errands that would require any interaction with others. She took her mother to all of her medical appointments and picked up her prescriptions.

[103] They passed their time by puttering around the house, doing puzzles and watching lots of movies. They also go on long walks together with their rescue dog. Since the start of the pandemic, Ms. Hutchinson gained an interest in cooking, and often cooked meals for her and her mother when she was not working.

[104] This has been further complicated by the fact that her mother recently suffered a stroke. This has impaired both her speech and her cognition. She is coherent but challenged. She has motor issues as well. In addition, her doctors have discovered lesions on her brain. She is at home.

[105] Ms. Hutchinson does not pay rent but has been contributing to the financial management of the household. She has been paying for the vast majority of groceries, gas, prescriptions, and other sundries since the start of the pandemic.

[106] Though her mother has a driver’s license, she is physically and mentally unable to drive herself to and from treatment.

[107] Ms. Hutchinson has no prior criminal record.

[108] She does however have a prior Highway Traffic Act record. This reveals the following relevant convictions:[^1]

2017-08-21 SPEEDING 109 KMH IN 60 KMH ZONE

2016-10-24 SPEEDING 70 KMH IN 60 KMH ZONE

2016-07-04 SPEEDING 55 KMH IN 40 KMH ZONE

2015-06-10 SPEEDING 115 KMH IN 100 KMH ZONE

[109] Fines were assessed in each case. She received four demerit points for the most recent conviction. The other three offences attracted zero demerit points.

[110] Ms. Hutchinson told Dr. Bloom that some people might say that she has a lead foot. She also revealed that her mother has told her previously to slow down and that she herself had previously recognized that she needed to address this issue.

[111] Dr. Bloom wrote the following under the heading “Risk Assessment”:

Given the impact this event has had on her, I strongly suspect that Ms. Hutchinson's resolve not to speed has significantly been heightened. She now has a condition (PTSD), which will hopefully be treated) that in its own right could serve as a down-regulator of her driving speed.

Ms. Hutchinson easily has the capacity to internalize what happened and harness the lessons of what occurred and their fallout in the interest of deterring her from speeding again.

Considering my comments in respect of the impact the herein tragedy has had on Ms. Hutchinson, and my review of her characterological makeup, I suspect that her risk for getting into the same situation again in the future is lower, and probably in the realm of the same or a similar risk that many if not most individuals are for finding themselves in the position of perpetrating a tragedy of this kind. Ongoing psychotherapeutic treatment that allows Ms. Hutchinson to address psychological factors impacting her life and thinking would probably go some way further towards reducing any identified risk.

[112] A further significant event occurred in Ms. Hutchinson’s life in February of this year when her father was murdered in London, Ontario.

[113] As a result of that, Ms. Hutchinson became eligible for counselling through the Victim Assistance Program and she took advantage of that for a time but she has since returned to her previous counselling regime.

[114] I requested an Electronic Supervision Program assessment. This led to a finding that the necessary technology can be accommodated at her proposed residence and that all ESP criteria has been met and all ESP agreement forms have been signed and returned. This program has since been replaced with a GPS program provided by the Ministry of the Solicitor General.

CONDITIONAL SENTENCE OF IMPRISONMENT

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

[116] The Supreme Court of Canada subsequently stated in R. v. Proulx, 2000 SCC 5 that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."[^2]

[117] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.[^3]

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

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

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

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

4. the safety of the community must not be endangered by the offender serving the sentence in the community; and

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

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

[120] In Ms. Hutchinson’s case, the first four prerequisite criteria have been satisfied.

[121] Section 742.1(c) precluded the imposition of a conditional sentence for an offence for which the maximum term of imprisonment is 14 years or life.

[122] The offence of dangerous operation of a conveyance causing death is punishable by a maximum sentence of imprisonment for life.

[123] However, in R. v. Sharma, 2020 ONCA 478, the Ontario Court of Appeal declared that section 742.1(c) unjustifiably infringed sections 7 and 15 of the Canadian Charter of Rights and Freedoms and is, therefore, of no force or effect.[^4]

[124] Section 742.1(e)(i) precludes the imposition of a conditional sentence for an offence for which the maximum term of imprisonment is 10 years, and the offence resulted in bodily harm.

[125] Crown counsel conceded that this subsection is not applicable to Ms. Hutchinson.

[126] The plain language of subsection (e) is such that it clearly applies to offences with ten year maximums, not “ten years or more”.

[127] A contextual reading of section 742.1, taken as a whole, also supports this reading. On a contextual reading, subsection 742.1(e) was meant to cover certain offences with ten year maximums and subsection 742.1(c) was meant to cover any offence with a maximum of 14 years or life.

[128] Finally, the prior version of the conditional sentence regime supports this reading as it suggests that subsection (e) was deliberately drafted the way it is. Previously, serious personally injury offences with a sentence of “ten years or more” were excluded. Subsection (d) also reads “ten years or more”. This suggests that “or more” was left out of subsection (e) intentionally.

[129] I agree with this position.

[130] Accordingly, a conditional sentence is not precluded by section 742.1 at this time.[^5]

[131] With respect to the remaining prerequisites for a conditional sentence, dangerous operation of a conveyance causing death is not punishable by a minimum term of imprisonment.

[132] Crown counsel argued that I should impose a sentence of imprisonment for three years. If I agreed with that, it would preclude the imposition of a conditional sentence.

[133] I am satisfied however that in the circumstances of this case, were I to send Ms. Hutchinson to jail, I would have imposed a sentence of imprisonment for between 12 and 18 months.

[134] Finally, I find that Ms. Hutchinson serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has not been in any further trouble since being charged in August 2019. She will be prohibited from operating a motor vehicle for a very long time. I am satisfied that there is no danger that she would return to crime following the imposition of a conditional sentence.

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

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

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

[137] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^6]

[138] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[^7]

[139] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton, 2004 5549 (ON CA) that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[^8]

[140] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^9]

[141] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 1381 (ON CA):

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[^10]

[142] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.[^11]

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

[144] Section 320.22 of the Criminal Code provides that a court imposing a sentence for an offence under section 320.13 shall consider the following to be aggravating circumstances:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) the offender was being remunerated for operating the conveyance;

(e) the offender's blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

(f) the offender was operating a large motor vehicle; and

(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

[145] None of these factors are present in this case.

[146] Section 718.2(a)(iii.1) provides that it is an aggravating circumstance if the offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation.

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

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

[149] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen, 1999 679 (SCC) and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[^12]

[150] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences and offences involving violence.[^13] The case before me is certainly one of those cases.

[151] More recently, the Ontario Court of Appeal stated the following in R. v. Disher:

The principle of restraint, as reflected in ss. 718.2(d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36. [^14]

[152] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[^15] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[153] Crown counsel initially made reference to eleven cases.[^16] Counsel for Ms. Hutchinson made reference to numerous other cases.[^17]

[154] During the more recent submissions, both counsel provided me with the Reasons for Sentence by Schwarzl J. in R. v. Linton, 2022 ONCJ 197.[^18]

[155] Crown counsel also referred to two further cases.[^19] Counsel for Ms. Hutchinson also cited 11 further cases.[^20]

[156] I have also reviewed R . v. Robertson,[^21] a very recent decision by Caponecchia J. of the Ontario Court of Justice released after submissions were completed in this case.

[157] Both counsel asked me to distinguish those cases referred to by the other side. In that regard there were many differences in the various cases. The charges sometimes included criminal negligence or impaired driving either as well as or instead of dangerous driving. Some cases involved street racing. Most did not. Some offenders remained at the scene while others fled. Some cases resulted in death. The others involved varying degrees of bodily harm. Some accused pled guilty. Other cases were hotly disputed in lengthy trials. Some offenders expressed significant remorse while others, not so much.

[158] As a result, these cases were more valuable for the principles they expressed.

[159] In that regard, they made it clear that dangerous driving causing death is a very serious crime. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people are injured or killed.[^22]

[160] General deterrence and denunciation are the most important factors in the determination of a sentence in such cases. Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced.

[161] A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment.[^23]

[162] In R. v. Muzzo, 2016 ONSC 2068, Justice Fuerst of the Superior Court of Justice wrote:

In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.[^24]

[163] These principles are applicable here.

[164] In R. v. Frickey, 2017 ONCA 1024, the Ontario Court of Appeal stated that “The principles of denunciation and deterrence are particularly relevant to dangerous driving offences that are often committed by first-time offenders and otherwise law-abiding citizens”.[^25]

[165] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada stated that a sentencing judge in such cases could be justified in attaching less weight to what might ordinarily be considered mitigating factors in the case.[^26]

[166] In 2007, the Ontario Court of Appeal identified the normal range for impaired driving or dangerous driving causing bodily harm as falling between a conditional sentence and imprisonment for two years less a day.[^27]

[167] Clearly, the upper end of that range should be higher in cases where death is caused. That was certainly so in R. v. Robertson, supra where Caponecchia J. imposed a sentence of imprisonment for 17 years for four counts of dangerous driving causing death, four counts of causing death while having more than 5 nanograms of THC per milliliter of blood in his body within two hours of ceasing to operate a motor vehicle and one count of dangerous driving in relation to a different collision two days earlier.

[168] There have been a number of cases where conditional sentences have been imposed following driving offences that caused death. These decisions either predate the amendments to the Criminal Code limiting the availability of such sentences or postdate R. v. Sharma, supra striking down those limitations.

[169] In R. v Komendat,[^28] in 2003, Ratushney J. imposed a conditional sentence of imprisonment for two years less a day plus two years probation following a guilty plea to criminal negligence causing death.

[170] In R v. Nikitin[^29] , in 2004, the Ontario Court of Appeal upheld a conditional sentence of imprisonment for 22 months imposed on a 64-year-old offender convicted of manslaughter following a trial

[171] In R. v. Kutusake, 2006 32593 (ON CA)[^30], in 2006, the sentencing judge imposed a sentence of imprisonment for 12 months following a guilty plea to criminal negligence causing death. The Court of Appeal substituted a conditional sentence of imprisonment for 18 months.

[172] In R v Ryazanov, 2008 ONCA 667[^31], in 2008, the Court of Appeal upheld the imposition of a conditional sentence of imprisonment for two years less one day plus probation for two years following a guilty plea to dangerous driving causing death. I will say more about this decision below.

[173] In R. v. Singh, 2009 ONCJ 223[^32], in 2009, D.P. Cole J. imposed a conditional sentence of imprisonment for 18 months plus probation for two years following a guilty plea to criminal negligence causing death.

[174] In R. v. Machado[^33], in 2011, Tulloch J. (as he then was) imposed a conditional sentence of imprisonment for 18 months plus probation for three years following a guilty plea to two counts of dangerous driving causing death. I note that in that case, Crown counsel agreed that a conditional sentence was appropriate. The only disagreement between counsel was in regard to the length of that sentence.

[175] In R. v. Forrestall, 2021 ONCJ 121[^34], in 2021, Prutschi J. imposed a conditional sentence of imprisonment for one year plus two years probation following a guilty plea to failure to stop where death resulted.

[176] Earlier this year, in R. v. He, 2022 ONSC 2100[^35], Goldstein J. imposed a conditional sentence of imprisonment for 18 months following conviction after trial for dangerous driving causing death.

[177] Then, in R. v. Linton, 2022 ONCJ 197[^36], Schwarzl J. imposed a conditional sentence of imprisonment for two years less one day for one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. This followed what Schwarzl J. described as the equivalent of a guilty plea.

[178] I am cognizant of the fact that these decisions do not stand for the proposition that a conditional sentence should be imposed in all driving cause death cases. On the contrary, for every such case where a conditional sentence was imposed I believe there to be hundreds (if not thousands) of cases where the offender was sentenced to a significant jail term.

[179] What the above cases do tell me is that a conditional sentence of imprisonment might be warranted in the appropriate circumstances.

[180] These appropriate circumstances can only exist where a conditional sentence can satisfy the sentencing objectives of denunciation and deterrence.

[181] In R. v. Ryazanov, supra, the Ontario Court of Appeal upheld the imposition of a conditional sentence stating

Where, as here, two young men made a conscious decision to drive in a dangerous fashion and caused the death of an innocent member of our community, the sentencing objectives of denunciation and general deterrence must be paramount. I agree with the sentencing judge's view that, in this case, these objectives can be addressed within the framework of conditional sentences. However, the problem lies in the conditions of the sentences imposed and the length of the driving prohibitions.[^37]

[182] The court went on to elaborate, stating that “Conditional sentences should be punitive”.[^38]

[183] The Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is a jail sentence but served in the community. It is "a punitive sanction capable of achieving the objectives of denunciation and deterrence"[^39].

[184] The Supreme Court elaborated on that statement stating that "punitive conditions such as house arrest should be the norm, not the exception."[^40]

[185] The Court of Appeal indicated in R. v. Ryazanov, supra, that this should be the case for the full duration of a conditional sentence.[^41]

[186] Conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives, depending on the nature of the conditions imposed, the duration of the conditional sentence and the circumstances of the offender and the community in which the conditional sentence is to be served.[^42]

[187] I also note that:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.[^43]

[188] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.[^44]

[189] In 2007, section 742.1 of the Criminal Code was amended to exclude the availability of conditional sentences for serious personal injury offences.

[190] I must consider the fact that Parliament tried to prohibit the imposition of a conditional sentence in cases of dangerous driving causing death even though that legislation has now been struck down by R. v. Sharma, supra.

[191] In R. v. Inksetter, 2018 ONCA 474, the Ontario Court of Appeal stated:

However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.[^45]

[192] Further, the maximum available sentence for dangerous driving causing death was increased in 2018 from imprisonment for 14 years to imprisonment for life.

[193] The Supreme Court of Canada has stated clearly that a decision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted such offences to be punished more harshly". An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for that offence.[^46]

[194] Driving is at the core of these cases. Driving is a privilege that comes with attendant responsibility and when that privilege is abused through irresponsible conduct, the loss of the privilege must be felt, both by the perpetrators and by others who would engage in similar conduct. A fit sentence in such cases must include an extended period of driving prohibition. [^47]

[195] A driving prohibition also serves as the most practical means to ensure the protection of the public.[^48]

[196] In R. v. Frickey, the Ontario Court of Appeal stated that:

In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2(e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.[^49]

[197] In determining the length of the sentence I would impose if I were to send Ms. Hutchinson to jail, I would have also taken into account the effect that Covid 19 is having on our community at large and in the corrections system in particular.[^50]

[198] The Ontario Court of Appeal has stated that “it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission”. However, the collateral consequences of the pandemic cannot be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.[^51]

[199] At the time of Ms. Hutchinson’s plea, I believed that COVID would be a non-factor in my reasons for sentencing her. That belief has changed however as we have since experienced further waves of COVID variants both in our community at large and in the provincial jails.

[200] As I stated earlier, the offence of dangerous operation of a conveyance causing death is punishable by a maximum sentence of imprisonment for life.

[201] The maximum period of driving prohibition is also life.

ANALYSIS

[202] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy.[^52]

[203] As I stated at the outset of these Reasons for Sentence this case can be described as a tragedy for all involved in it.

[204] Antonio Bassil’s life was reduced to barely existing in a coma vigil state for almost 29 months. It was then taken away completely.

[205] His family are devastated.

[206] Ms. Hutchinson is consumed with guilt for having caused this. She is experiencing nightmares and flashbacks and other symptoms of PTSD.

[207] Most frustrating for me as the sentencing judge is the realization that I cannot change any of this. Nothing I can do will return Mr. Bassil to his former life. Nothing I can do will make the pain go away for all of the others involved here.

[208] All that I can do is to impose a just and appropriate sentence upon Ms. Hutchinson.

[209] In that regard, sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."[^53]

[210] The primary objectives in sentencing Ms. Hutchinson are deterrence and denunciation.

[211] However, I cannot totally ignore the other principles of sentencing.[^54]

[212] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Ms. Hutchinson and yet, at the same time, one that is responsive to her unique circumstances.

[213] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence.

[214] The aggravating factors can be found in the facts of the offence.

[215] Ms. Hutchinson was speeding. She was driving at speeds up to 131 km/hr on a road where the speed limit was 80 km/hr.

[216] There were other vehicles on the road at the time and she was clearly aware of their presence.

[217] Further, while everything occurred over a very short period of time, there was more to her dangerous driving than just excessive speed.

[218] She waited for one vehicle to pass her on her left before she pulled over behind him and accelerated rapidly to pass a vehicle that had been in front of her. She then cut back into the right lane to pass yet another slower moving vehicle. At the point she did this, she was following closely behind the car that had initially passed her and was accordingly unable to see what if anything was ahead of them. Unfortunately for all involved, Mr. Bassil was there, and Ms. Hutchinson saw him too late to avoid hitting him with her speeding car.

[219] These were all conscious decisions by her. She was not distracted momentarily. Nor was her thinking clouded by alcohol or drugs.

[220] She had a previous record for speeding on four occasions. The most recent conviction was for driving 49 km/hr over the posted speed limit. That offence occurred on the same road as the current offence, albeit at a different location.[^55]

[221] This driving record is clearly relevant in this sentencing proceeding.[^56]

[222] In R v. Frickey, supra, the Ontario Court of Appeal noted that “the appellant had amassed three speeding convictions on her driving record prior to her commission of the index offence”[^57] and treated that as an aggravating factor there. I do note, as did the Court of Appeal that Frickey had also “committed a fourth speeding offence, as well as a distracted driving offence, following the present offence”.[^58]

[223] This collision caused catastrophic physical injuries to Mr. Bassil and ultimately caused his death. It has seriously impacted his family members who will likely never get over the emotional trauma experienced by them.

[224] At this point I wish to address the submission of counsel for Ms. Hutchinson that I should view certain acts by Mr. Bassil as constituting “contributory negligence” that is relevant to my assessment of the moral blameworthiness of Ms. Hutchinson.

[225] I disagree with that submission.

[226] It matters not to me whether Mr. Bassil was operating his E-Bike appropriately, as suggested by Crown counsel, or whether he was contravening certain provincial offences, as suggested by counsel for Ms. Hutchinson. What matters is that Ms. Hutchinson should have been operating her vehicle in a manner such that she would have seen him in time and been able to respond in any event. She did not do that.

[227] There are a number of mitigating factors in this case.

[228] Ms. Hutchinson did plead guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it greatly reduced the extent to which the family of Mr. Bassil had to revisit these events in a public courtroom.

[229] She has repeatedly expressed remorse for what she has done. Her remorse was clearly visible to anyone watching her during these court proceedings.

[230] She had no prior criminal record. An offender’s prior criminal record, or the absence thereof, is always a factor entitled to some weight in a sentencing context.[^59]

[231] She did have a prior driving record, which I referred to above as an aggravating factor in this matter. I do note that the penalties imposed in each case were fines. There was no jail. Only the one offence attracted demerit points. The most recent conviction was a little over two years prior to the current offence.

[232] She has not offended further since this happened, almost 34 months ago.

[233] She has otherwise led a very good life and been of good character.

[234] I note however that driving offences are often committed by otherwise law-abiding people. I note also that such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

[235] She has strong support from friends and family and from her employer. This speaks well for her prospects of rehabilitation. I note however that the support from her employer does not go so far as to hold her position open for her should she be unavailable to work for an extended period.

[236] Her family and her employer are also sources of responsibilities borne by Ms. Hutchinson. Crown counsel candidly said of her that she is prosocial, works hard and cares for her mother.[^60] Ms. Hutchinson will not be the only one to experience hardship if she goes to jail.

[237] She has taken meaningful steps to address her mental health issues.

[238] I am quite cognizant of the fact that, taking all of the above factors into account, a sentence involving actual incarceration would not be inappropriate here. As I stated earlier, had I gone down that road, I would have sentenced Ms. Hutchinson to imprisonment for between 12 and 18 months. Applying the principle of restraint, she would have been entitled to a sentence at the low end of that range. I would also have prohibited her from driving for five years.

[239] I will pause here to comment on the change in Crown counsel’s position following the death of Mr. Bassil.

[240] In her initial submissions, she asked me to consider Mr. Bassil’s condition as being akin to death. The original Victim Impact Statement started out with “They say death is the worst tragedy that can happen to a family, but I can assure you it is not”.

[241] I agreed with both of those statements. I do not consider myself capable of deciding which state was worse, death or a prolonged coma with no realistic hope of recovery.

[242] Accordingly, I would have sentenced Ms. Hutchinson originally on the basis that the harm she caused was “akin to death”. That did not change when he actually died. I would have sentenced Ms. Hutchinson to imprisonment for between 12 and 18 months in either event.

[243] I am satisfied however that in the particular circumstances of this case, a conditional sentence of imprisonment for two years less one day, followed by probation for two years and combined with a driving prohibition for ten years would be consistent with the fundamental purpose and principles of sentence.

[244] It would certainly deter Ms. Hutchinson. She is already wracked with guilt over what she did to Mr. Bassil. A conditional sentence will more than suffice to reinforce those feelings.

[245] I also find that a conditional sentence can satisfy the principles of general deterrence and of denunciation.

[246] It will run for a much longer period of time than the jail term that I would have imposed.

[247] It will include conditions that are punitive. These will be as follows.

[248] There will be house arrest for the entire duration of the conditional sentence.

[249] She will be subject to electronic supervision pursuant to the new GPS program provided by the Ministry of the Solicitor General. I have not often included electronic supervision as a term of a conditional sentence in previous cases. I believe it to be stigmatising. I believe however that it is appropriate here. It will hopefully serve as a constant reminder to Ms. Hutchinson of what she did to get herself into that position.

[250] I will include a term prohibiting the consumption of alcohol or cannabis. She would not have access to these in jail and she should not have access to them during her conditional sentence of imprisonment.

[251] I will be including a provision for the maximum allowable hours of community service. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. I recognize that they are not necessarily seen that way now but clearly, they can have a deterrent effect. They also provide an element of restorative justice as they require offenders such as Ms. Hutchinson to give something back to the community. In this case I am recommending that wherever possible, Ms. Hutchinson should perform her community service by speaking to community groups and especially young drivers about the dangers involved in driving in a dangerous manner.

[252] I have elected to include the community service order as a term of probation rather than as a term of the conditional sentence. My reasons for doing this are two-fold.

[253] First, I am concerned that COVID may still interfere with her ability to perform community service for some time yet to come. That should not be the case when the probation order begins, two years from now. There will be no reason then for her to be excused to any degree from this obligation

[254] Second, community service would provide a further exception to the home confinement term. This was not as significant a factor in my reasoning, but it did come to my mind.

[255] With respect to the principle of restorative justice, as I just mentioned the community sentence order provides one way for Ms. Hutchinson to give something back to the community. I note however that she has also given something back to the actual victims in this case. A substantial amount of money has been paid to compensate them for their losses, at least to some degree. I recognize that the actual payout came from her insurance company rather than directly from her, but it is still a factor to be considered.

[256] Finally, I am imposing a much longer driving prohibition than I would have had I sent Ms. Hutchinson to jail.

[257] I recognize that driving is a privilege and not a right. I also recognize that, despite that fact, most drivers will see a long driving prohibition as being punitive.

[258] Public transit exists in Burlington, but it is not nearly as extensive as that found in Toronto or Hamilton. Ms. Hutchinson’s residence is only a 10 to 15 minute walk from a bus route but the Keg is very badly situated in that regard. The local taxi company recently stopped operating. Uber is still operating here and there are other alternatives to driving, but most drivers in this community would see a ten-year driving prohibition as being much more than a mere inconvenience. I am satisfied that it should have a meaningful impact in terms of general deterrence.[^61]

[259] It will certainly serve to ensure that the public will not be endangered to any degree by Ms. Hutchinson driving for a very long time.

[260] The conditional sentence order will certainly address issues in a manner that should contribute to her continued rehabilitation.

[261] It will also allow her to continue with her responsibilities with her mother and her employment. Those are both positive contributions to society in general and cannot be ignored.

[262] With respect to the value of her employment to her. I note the comment of Dr. Bloom:

Ms. Hutchinson, as her mother correctly suggested, did and does experience her work as a sanctuary. It offers nothing but positive feedback, and has likely served, in the absence of more concerted mental health help, as a highly therapeutic pursuit that shores up deficits in her self-esteem, allows her to work in the service of others, and provides a high degree of detail, structure, and performance markers for managing day-to-day life.

[263] My final comment is to point out that, in reaching my decision I have considered all of the various factors collectively. I am also looking at the sentence as a whole, and not as separate components.

SENTENCE

[264] For all of the above reasons, I sentence Ms. Hutchinson to a conditional sentence of imprisonment for two years less one day, to be served in the community, followed by probation for two years.

[265] The terms of the conditional sentence of imprisonment will require that Ms. Hutchinson:

1. keep the peace and be of good behaviour;

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

3. report to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with the supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to the supervisor on request;

7. live at 235 Hammersmith Court, Burlington, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the full length of the conditional sentence. You will remain in your residence or on the property of your residence at all times daily except:

(a) between 1 pm and 5 pm on Mondays or during such other four-hour period once a week as is agreed, in writing, by your Supervisor in order to acquire the necessities of life

(b) for any medical emergency involving you or your mother,

(c) for going directly to and from or being at, employment, court attendances, religious services and legal or medical or dental appointments or assessment, treatment or counselling sessions appointments or assessment, treatment or counselling sessions or the courthouse in Burlington for the taking of your DNA,

(d) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with you during these times.

(e) you shall provide the supervisor with your schedule of work hours, medical appointments and religious services. The supervisor will incorporate these into a written letter of permission to be out of the residence and that letter shall be carried by you on your person at all times while out of the residence.

9. Further you shall report within two working days to your Conditional Sentence Supervisor for the purpose of arranging your enrolment in the GPS program provided by the Ministry of the Solicitor General.

10. You shall participate and abide by all rules and regulations of the GPS program as required by your Conditional Sentence Supervisor for the purpose of home monitoring and/or location monitoring.

11. You shall be placed on the GPS program for the entire length of the Conditional Sentence Order.

12. You shall permit the Ministry of the Solicitor General staff and/or persons who are authorized by the Ministry of the Solicitor General associated with the GPS program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing any home or location monitoring equipment.

13. You shall permit the Ministry of the Solicitor General and/or Police Services in your residence during the investigation of any alerts, either technical (i.e. Transmitter Battery Low) or compliance issues (i.e. subject leaving during curfew) generated while on the GPS program.

14. You shall participate and abide by the rules and regulations of that program as required by your Conditional Sentence Supervisor and/or designate from the GPS program for the purpose of monitoring your house arrest, home curfew, residence restriction, movements, inclusion and exclusion zones, etc as required by the terms of your Conditional Sentence Order.

15. You shall make yourself available either by phone or in person as may be required at any time and in particular, you shall answer the phone at any time during house arrest, and present yourself to Ministry of the Solicitor General staff, police services and/or persons who are authorized by the Ministry of the Solicitor General associated with the Compliance Detection Program at the door of your residence at any time during house arrest for the purpose of confirming your presence and compliance.

16. do not consume alcohol or cannabis

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

18. do not operate a motor vehicle

[266] The terms of the probation will require that Ms. Hutchinson:

1. keep the peace and be of good behaviour;

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

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days of completing your conditional sentence, and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision;

5. your reporting requirement ends when you have satisfied your probation officer that you have completed all of your counselling and all of your community service

6. cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request;

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

8. perform 240 hours of community service work. This work is to commence within 30 days of the start of the probation order and shall be completed at a rate of not less than 15 hours per month. You shall complete the work as directed by and to the satisfaction of the probation officer. You shall complete all of your community service hours by / within 18 months

9. do not operate a motor vehicle

[267] I also make the following ancillary orders.

[268] Ms. Hutchinson is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of ten years, commencing today.

[269] Dangerous driving causing death is a secondary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Ms. Hutchinson of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

Released: June 14, 2022

Signed: Justice D.A. Harris

[^1]: I am not attaching significant weight to a conviction on 2015-09-16 for Drive Motor Vehicle - No Currently Validated Permit.

[^2]: R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 12; See also R. v. Sharma, 2020 ONCA 478 at paras. 29 and 30.

[^3]: R. v. Proulx, supra, at para. 21.

[^4]: R. v. Sharma, 2020 ONCA 478.

[^5]: R. v. Sharma is under appeal. Ontario intervened and supported the Federal Crown’s position that the majority erred in striking down section 742.1(c). The appeal was heard in March 2022. If the Supreme Court overturns R v. Sharma, a conditional sentence would not be legally available here. In the meantime, a conditional sentence is available.

[^6]: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at para. 102; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

[^7]: Criminal Code, section 718.1

[^8]: R. v. Hamilton, supra, at para. 90.

[^9]: Ibid, at para. 91.

[^10]: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

[^11]: R. v. Hamilton, supra, at para. 93.

[^12]: Gladue v. The Queen, 1999 679 (SCC), [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, supra, para. 20.

[^13]: R. v. Priest, supra at para 17.

[^14]: R. v. Disher, [2020] O.J. No. 4849 (Ont. C.A) at para 59.

[^15]: Gladue v. The Queen, supra at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 to 20.

[^16]: R v Rawn, 2012 ONCA 487; R v. Currie, 2018 ONCA 218; R v. Nusrat, 2009 ONCA 31; R v. Van Puyenbroek, 2007 ONCA 824; R v. Kippax, 2010 ONSC 2529; R v. Wood, 2013 ONSC 2636; R v. Ferguson, 2014 ONCA 673; R v. Frickey, 2017 ONCA 1024; R v. Siddiqui, 2016 ONCA 376; R v. Ramage, 2010 ONCA 488; R v. Lindsay, 2020 ONCJ 467

[^17]: R. v Forrestall, 2021 ONCJ 121; R. v. Ibrahim, 2021 ONSC 1112; R. v. Hayhoe, 2020 ONSC 750; R. v. Romano, 2021 ONCA 211; R. v. Ali, 2020 ONSC 7059; R. v. Irons, 2016 ONSC 1490; R. v. Stoffels- Reid, [2010] O.J. No. 5977; R. v. Zarb, 2014 ONSC 2585 – Sentence upheld by ONCA without much discussion at 2015 ONCA 78; R. v. Dubovina, 2015 ONSC 1518; R. v. Ally, 2015 ONSC 1204; R. v. Brighton, 2020 ONCJ 458; R. v. Whalen, [2018] OJ No. 2061 (OCJ): R. v. Markos, 2019 ONCA 80; R v Ryazanov 2008 ONCA 667; R. v. Manahan, 2010 ONCJ 360, affirmed 2012 ONCA 734, but C.A. did not discuss the sentence, only the conviction: R. v. Areco (1999), 1999 636 (SCC), 140 C.C.C. (3d) 225 (Ont. C.A.).

[^18]: R. v. Linton 2022 ONCJ 197 per Schwarzl J.

[^19]: R. v Berto, 2018 ONSC 6747, affirmed at 2021 ONCA 839; R. v. Moran, 2020 BCSC 1397; R. v. Singh, 2018 ONSC 4598 affirmed at 2019 ONCA 872.

[^20]: R. v. Komendat, [2003] O.J. No. 5654 (Ont. S.C.J.) per Ratushny J.; R. v. Nikitin, [2004] O.J. No. 2505 (Ont. C.A.); R. v. Kutsukake, 2006 32593 (ON CA), [2006] O.J. No. 3771 (Ont. C.A.); R. v. Singh, 2009 ONCJ 223 per D.P. Cole, J.; R. v. Machado, [2011] O.J. No. 6452 (Ont. S.C.J.) per Tulloch J. as he then was; R. v. He, 2022 ONSC 2100 per Goldstein J. Counsel also referred to five cases involving non-driving offences where the maximum sentence was life imprisonment but a conditional sentence was imposed.

[^21]: R. v. Robertson, [2022] O.J. No. 1637 (O.C.J.) per Caponecchia J.

[^22]: R v Rawn, supra, at para. 41;

[^23]: R v Rawn, supra, at para. 33; see also R. v. Nusrat, supra.

[^24]: R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (Ont. S.C.J.) per Fuerst J. at para. 58. See also R. v. P.(B.W.), 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2. and R. v. Lacasse, 2015 SCC 64, at para. 73.

[^25]: R. v. Frickey, supra at para. 4. See also R. v. Currie 2018 ONCA 21 at para. 10.

[^26]: R. v. Lacasse, supra at paras. 77 to 79.

[^27]: R v Rawn, supra, at para. 43; see also R. v. Van Puyenbroek, supra at para. 59.

[^28]: R. v Komendat, [2003] O.J. No. 5654 (Ont. S.C.J.) per Ratushny, J.

[^29]: R v. Nikitin, [2004] O.J. No. 3771 (Ont.C.A.)

[^30]: R. v. Kutusake, 2006 32593 (ON CA), [2006] O.J. No. 3771 (Ont. C.A.)

[^31]: R v Ryazanov 2008 ONCA 667 (Ont. C.A.)

[^32]: R. v. Singh, 2009 ONCJ 223 per D.P. Cole J.

[^33]: R. v. Machado, [2011] O.J. No. 6452 (Ont. S.C.J.) per Tulloch J., as he then was.

[^34]: R. v. Forrestall, 2021 ONCJ 121, per Prutschi J.

[^35]: R. v. He, 2022 ONSC 2100, per Goldstein J.

[^36]: R. v. Linton, 2022 ONCJ 197, per Schwarzl J.

[^37]: R v Ryazanov, supra at para. 72.

[^38]: Ibid, at para. 75.

[^39]: R. v. Proulx, supra, at paras. 22, 41 and 67; See also R. v. Hamilton, supra, at para. 112; R. v. Wismayer, 1997 3294 (ON CA), [1997] O.J. No. 1380 (Ont. C.A.) per Rosenberg J.A. and R. v. Wellington, 1999 3054 (ON CA), [1999] O.J. No. 569 (Ont. C.A.) per Feldman J.A. at para. 8; R. v. Sharma, supra at paras. 29 – 30, 110 and 171.

[^40]: R. v. Proulx, supra, at para. 117.

[^41]: R. v. Ryazanov, supra at para. 75.

[^42]: R. v. Proulx, supra, at para. 114; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 at para. 35; R. v. Sharma, supra at paras. 110 and 171.

[^43]: R. v. Proulx, supra at paras. 102 and 104.

[^44]: R. v. Sharma, supra at para. 185.

[^45]: R v. Inksetter 2018 ONCA 474, at para. 24.

[^46]: R. v. Lacasse, supra at para. 7; R v. Suter, [2018} SCJ No. 34 at para. 26; R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 at para. 97.

[^47]: R v Ryazanov, supra at para 76; R. v. Rawn, supra at paras 48 to 50.

[^48]: R. v. Frickey, supra at para. 4.

[^49]: Ibid, at para. 10.

[^50]: R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (Ont. S.C.J.) per Pomerance J. at paras. 14 to 18; R. v. Vigon-Campuzano, [2020] O.J. No. 4020 (Ont. S.C.J.) per D.E. Harris J. at paras. 52 and 53.

[^51]: R. v. Morgan, 2020 ONCA 279 at para 8; R. v. Walker, [2021] O.J. No. 6817 (Ont.C.A.) at paras. 5 & 6.

[^52]: R. v. Hamilton, supra at para.1; See also R. v. Lacasse, supra, at para. 1 and R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (S.C.C.) at para. 43.

[^53]: R. v. Muzzo, supra. at para. 59.

[^54]: R v. Friesen, supra, at para. 104.

[^55]: Ms. Hutchinson disclosed this information to Dr. Bloom who included it in his report.

[^56]: R. v. Lacasse, supra at para. 80.

[^57]: R. v. Frickey, supra at para. 6. Also see R. v. Lacasse, supra at para. 80.

[^58]: R. v. Frickey, supra at para. 6.

[^59]: R. v. Dobis (2002) 2002 32815 (ON CA), 58 O.R. 3rd 536 (Ont. C.A.) at para. 28.

[^60]: A number of the cases cited have recognized that the fact that an offender is the primary caregiver for someone is a factor to be considered when determining an appropriate sentence. See R. v. Sharma, supra at paras. 88 and 125: R. v Nikitin, supra, at para. 23 and R v. He, supra, at para. 3.

[^61]: R. v. Ryazanov, supra, at para. 78.