Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: June 27, 2022 COURT FILE No.: 20-81406872

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KRAIG ROBERTSON

Before: Justice Angela L. McLeod

Judicial pretrial: September 2, 2021 Guilty plea: October 22, 2021 Sentencing hearing: May 2, 2022, and May 10, 2022

Counsel: Katherine Spensieri........................................................................... counsel for the Crown Bernard Cugelman...................................................................... counsel for the defendant

McLeod J.:

Overview

[1] Mr. Robertson pled guilty to operating a conveyance and at the time knew that or was reckless as to whether the conveyance was involved in an accident that resulted in the death of Vanessa Murphy or in bodily harm to Vanessa Murphy whose death ensued and failed to stop and give name and address or offer assistance, contrary to section 320.16(3) of the Criminal Code of Canada.

[2] An agreed statement of facts was filed as Exhibit #1. In short, on September 15, 2020, Ms. Murphy was walking in the middle of a dark roadway, late at night. The roadway was a posted 80km/h zone. The area was on a downhill slope. A number of drivers had seen Ms. Murphy walking on the roadway, with a dog, seeming to be in some kind of distress. One had called the police to report same. Almost immediately thereafter the police received another call reporting that a female pedestrian had been struck by a vehicle and was lying in the centre of the driving lane.

[3] When police arrived on scene, they tragically found Ms. Murphy deceased; in the ditch was her deceased puppy.

[4] Several pieces of plastic and vehicle debris, thought to have come from the suspect vehicle, were located on the roadway.

[5] Only the strap of Ms. Murphy’s purse was located; as such, her identity was unknown to the police. A post-mortem examination was conducted, and fingerprints and retina were analyzed on September 17, 2020, at which time it was learned that the deceased was Vanessa Murphy.

[6] An accident reconstructionist determined that the force of the collision caused Ms. Murphy’s body to wrap onto the hood of the vehicle and then strike the windshield. Her body then travelled 37.18 meters before coming to a final rest on the outside northbound lane near the curb. The defendant was travelling at approximately 79km/h when the collision occurred.

[7] Mr. Robertson did not stop immediately after the collision. He continued to travel for approximately 5 kilometers from the scene, when he then stopped and exited his vehicle. He discovered Ms. Murphy’s black purse which had become attached to the front passenger side of vehicle during impact. The defendant removed the purse from his vehicle and threw it into a wooded field.

[8] He got back into his vehicle but did not to return to the scene of the collision. He continued driving to his residence located approximately 11 km or a 15-minute drive from the scene of collision.

[9] The defendant did not tell or contact anyone until approximately 9:00 am the following morning (September 16, 2020), when he asked his mother if she had seen his vehicle. He proceeded to tell her that he had hit a person, that he had not slept at all last night, and was up vomiting. He heard on the radio that a person had been hit. The defendant’s mother said, “we have to make this right.”

[10] Later that morning, at approximately 11:30 am, the defendant attended the police station accompanied by his father, who stated that his son was possibly involved in the collision on Bayfield Street the previous night. Mr. Robertson provided a cautioned inculpatory statement to police at which time he stated that he was driving his car northbound on Bayfield Street the night before and may have struck something. He continued to drive home, without stopping, and did nothing further until hearing about a fail to remain collision on Bayfield Street that occurred the night before on the news.

[11] Mr. Robertson lied to the police. He did not tell them that he had actually stopped 5 km from the collision, found the purse attached to the car and then threw it into the field.

[12] On September 19, 2020, a citizen located a purse approximately 20 feet into a field. The purse belonged to Vanessa Murphy and contained her personal identification. The purse was turned over to the police.

[13] On October 6, 2020, Mr. Robertson was confronted by the police about the purse. At that time, he admitted to stopping and throwing the purse into the field. He was arrested for the offence before the court.

The Victim – Ms. Vanessa Murphy

[14] Vanessa Murphy was 29 years of age at the time of the collision. She is survived by many loving family members. Several victim impact statements were read and subsequently filed and made exhibits on sentencing. Her sister-in-law described her as “an independent, adventurous, and beautiful young woman who had her whole life ahead of her.” Her brother wrote, “she never had a chance to find who she was in this world and to discover what made her happy.”

[15] The family speaks to the fact that they were not advised of Vanessa’s death until 3 days after the collision. This was a direct result of Mr. Robertson throwing her purse into the field and her identity needing to be confirmed at the post-mortem examination. This fact is most difficult for them to understand. Her brother wrote, “you had fled and went home but not before making her a Jane Doe.” Another brother wrote, “your choices and decisions after the accident have resulted in so much added pain and turmoil for my family. Had you done the right thing immediately, my family would not have had to live with the agony of not knowing she had passed for two entire days.”

[16] The family members wrote about the anguish that they feel knowing that Vanessa was left on the roadway, without concern or care. Her brother wrote, “this is a total disregard for any care or compassion for another human. I mean you had hit someone and just carried on with your night and didn’t turn back to see if they are okay or that you could help and maybe try to save them or even call 911.” Vanessa’s cousin wrote, “you left her bleeding to death on the road like nothing.”

The Defendant – Mr. Kraig Robertson

[17] A presentence report was authored and filed as Exhibit #14. Mr. Robertson is now 23 years of age; 21 years of age at the time of the collision. He is single without dependents.

[18] Mr. Robertson had a good childhood that he described as ‘normal’. He resides with his father and stepmother, with whom he has a ‘caring and supportive relationship’.

[19] He has a high school education and is gainfully employed. He is a trained small engine mechanic; however, his current employer is offering him the opportunity to train to work on larger engines and his hope is to one day become an auto mechanic. He has maintained his current position for the past 4 years. He is described as “very hard working, prompt, kind and genuine.”

[20] Mr. Robertson noted that he has not been able to drive since the accident, prohibited as a term of his release. He advised the presentence author that “driving was his main focus in life as he is a car enthusiast and finds that driving was a large part of how he relieved and coped with stress … he has had to pay for a vehicle and insurance for two cars he cannot drive and [ ..] this has become a financial burden for him.”

[21] Mr. Robertson attended one session of counselling after the accident but did not find the session helpful and discontinued.

[22] He expressed regret in his interview and at the sentencing hearing verbally expressed remorse. A letter of apology was filed as Exhibit # 11. In part, he wrote, “I will never forget what happened that day as it forever changed my life as well as the lives of everyone who knew her, loved her and cared for her deeply.”

[23] Mr. Robertson does not have a criminal record.

[24] He has 16 HTA convictions between 2017 and 2020. Two of those involved a single motor vehicle collision; the latter resulted in both the defendant and his passenger sustaining injuries and requiring hospitalization. In fact, his passenger needed to be air lifted to hospital. Two of his convictions were for stunt driving.

Position of the Parties

[25] The Crown seeks a custodial sentence of 12 months, to be followed by a 12-month term of probation, a s. 109 order, a DNA order, and a driving prohibition for 5 years.

[26] The Crown submits that aggravating is the HTA record for convictions, the death of the puppy, the throwing of the purse to avoid responsibility and the lie to the police about stopping and the purse.

[27] The Crown argues that anything less than a custodial term would not be commensurate with Mr. Robertson’s moral blameworthiness.

[28] The defence seeks a conditional sentence order in the range of 9-12 months, to be followed by a 12-month term of probation, a s. 109 order, and a DNA order. The defence submits that the 12-month mandatory driving prohibition is sufficient in all of the circumstances.

[29] The defence submits that the defendant is a youthful, first-time offender, and notes that he hasn’t been able to drive since his release after arrest, some 20 months or so.

Analysis

[30] I find as mitigating factors on sentence, the following:

(1) The plea of guilt; (2) The lack of criminal convictions; (3) The expression of remorse, which I find to be genuine; (4) The work history and prosocial activities of Mr. Robertson; (5) Family and community support; (6) The accident was not as a result of impaired or dangerous driving; (7) Turning himself in initially to the police.

[31] I find as aggravating factors on sentence, the following:

(1) The fact of a second victim of the accident, Vanessa Murphy’s puppy; (2) The HTA convictions, focussing especially on the two prior accidents; (3) That Mr. Robertson callously threw Ms. Murphy’s purse into a field. I find that this action was an attempt to evade responsibility, and resulted in an extended police investigation, post-mortem for identification and the delay in notification to the family. He displayed a high degree of callousness and disregard; (4) That Mr. Robertson waited until the next morning to attend at the police station; (5) That Mr. Robertson lied to the police about stopping after the accident and omitted that he had thrown the purse; (6) That Mr. Robertson only admitted to having thrown the purse after confronted by the police; (7) That by leaving Ms. Murphy on the roadway, he created risk to other users of the roadway, which was unlit and down sloping; (8) The substantial victim impact.

[32] I find that Mr. Robertson’s moral culpability is elevated by his prior involvement in motor vehicle collisions, the resultant injuries and necessary hospitalization, the involvement with the justice system. In short, he ought to have had a heightened consideration for the potential results of an accident and his responsibilities as a driver thereafter.

[33] I find that Mr. Robertson’s moral culpability is elevated by his stopping, finding the purse, throwing the purse into the field, and then choosing to proceed home. I find that this was the second failed opportunity for Mr. Robertson to address what had occurred; the first was at the time of impact when it was clear, by the significant damage to the windshield that something or someone had been struck by his vehicle.

Sentencing Principles

[34] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) deterring the offender and others from committing crimes; c) separating offenders from society where necessary; d) assisting in the rehabilitation of the offender; e) providing reparations for harm done to the victim or to the community; f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[35] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[36] I must also consider the sentencing principles of restraint, rehabilitation, denunciation, general and specific deterrence. The latter three are paramount.

[37] Additionally, I remind myself that Mr. Robertson is a youthful, first-time offender.

Conditional Sentence Order – Law and General Principles

[38] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and, (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[39] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[40] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[41] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

Caselaw

[42] The parties each made reference to a number of cases. I will not refer to each specifically, but rather highlight the guiding principles:

(1) The range is between 4 months and 12 months custody where a death or serious injury occurs (R. v. King, 1989, 14 M.V.R. (2d)); the range is between 3 months and 6 months custody, where there are no underlying driving offences (R. v. De Freitas, [2014] O.J. No. 6754); the range is between 3 and 12 months custody (R. v. Forrestall, [2021] O.J. No. 1133); (2) Sentences arising out of the same incident should be served consecutively (King, supra); (3) Failing to remain is a “reprehensible act and deserves severe punishment.” (King, supra); (4) Failing to remain has been treated as an extremely serious crime requiring emphasis of general deterrence. Our Court of Appeal has routinely cited the cases of R. v. Gummer and R. v. Ramdass, [1982] O.J. No 177 (Ont. C.A.), for the proposition that failing to remain is a grave and serious crime.” (R. v. Porter, 2017 ONSC 6582); (5) A conditional sentence order can meet the sentencing principles at play in a fail to remain offence (see R. v. Oliveira, [2016] O.J. No. 140 (ONSC) and R. v. Soos, [2021] B.C.J. No. 2624 for a good summary of the cases); (6) Cases such as these are challenging. While there may be a natural inclination to tie the horrific result of the accident to [the defendant’s] conduct post-accident, it would be an error to do so. The issue of causation of injuries or death is not an included element of the offence. [The defendant] faces no criminal sanction based on […] driving pattern, use of alcohol or drugs, or even a lack of proper attention to driving. [The defendant’s] criminal liability arose after the accident occurred when [they] failed to remain at the scene to render assistance and provide [their] contact information (Soos, supra); (7) In cases of this nature, it is clear that the primary factors to be punctuated on sentence are denunciation and deterrence. As noted in R. v. Wieczorek, 2010 ONCJ 582, [2010] O.J. No. 5260 at paragraph 64:

The duty imposed [by what was then] s. 252 is not an onerous one - a person involved in an accident must remain at the scene, identify him or herself and give assistance to any injured party. This allows for any criminal investigation to occur without delay, resolves issues of civil or criminal liability. Just as importantly, there is a simple duty as a human being to show care and respect for those who may have been injured or killed - to remain until authorities determine what has happened. (Soos, supra)

Conclusion

[43] In all of the circumstances, balancing the various sentencing principles, considering the mitigating and aggravating factors, I find that the principles of denunciation and deterrence would not be met by the imposition of a conditional sentence.

[44] A custodial sentence of 12 months, followed by a term of probation for 18 months, a s. 109 order for 10 years, a DNA order, and a driving prohibition for 5 years is imposed.

[45] Driving is a privilege, not a right. It is a privilege granted to those who are licensed, insured and who follow the rules of the road. In this instance, failing to remain at the scene of this tragic accident was not only a failure to uphold the terms of that privilege, but it was also an abjuration of the responsibilities of a dutiful driver and a compassionate human being.

Released: June 27, 2022. Signed: Justice Angela L. McLeod