Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 16, 2022 COURT FILE No.: 20-17233

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER FILIAULT

Before Justice S. Murphy

Heard on August 5, 2022 Reasons for Judgment released August 16, 2022

Counsel: Jennifer Holmes, counsel for the Crown/Applicant Daniel Topp, counsel for the accused Christopher Filiault

[1] Christopher Filiault has pled guilty to failing to remain at the scene of an accident and with obstructing justice, arising from an accident on November 15, 2020. Tragically, on that date, seven-year old Kuothhorkho James was struck by Mr. Filiault’s vehicle and he died from his injuries. Mr. Filiault did not stop his vehicle to render aid to the child, and he actively attempted to hide his involvement in the accident in the days following the accident.

[2] As part of his plea, I heard an Agreed Statement of Facts and made findings of guilt based on that Agreed Statement of Facts. The child was referred to as Kuzy in that Statement of Agreed Facts, as that was the nickname that the family gave him. From this point further in my reasons, he will be referred to as Kuzy.

Facts

[3] Kuzy was an autistic child, just shy of his 8th birthday on November 15, 2020. He had been playing inside the home with a family member, but he got outside at about 8:48 that night. It was dark outside. He was seen by other motorists running back and forth across Jefferson Boulevard. One witness couldn’t see Kuzy but she saw what she believed to be an outline of a red shirt. She warned the driver of the vehicle that she was to slow down because she thought she saw a person. She said that it appeared that Kuzy was reaching for the door handle of the car as they passed. Another witness believed that Kuzy was smiling and he believed that Kuzy was playing chicken with the cars. One person stopped and administered CPR and called 911 when Kuzy was struck with the front passenger side of the vehicle being driven by Mr. Filiault. That witness saw Mr. Filiault’s vehicle swerve but hit Kuzy. Mr. Filiault didn’t stop his vehicle nor did he call 911. Instead, he drove to his girlfriend’s workplace, the Lauzon Landing. He was distraught and told her that he had hit something. He later disposed of the bug deflector and the headlight cover and replaced the headlight assembly. When he purchased the replacement parts, he signed the COVID-19 contact sheet with a different name. The next day, he attended a grave-side memorial service for a family member in West Lorne, Ontario. He stopped at the Flying J Travel Centre on County Road 42, purchased coffee and lottery tickets, and then left. When he returned to Windsor, he secreted the vehicle behind the Time Out Bar on Walker Road, and then in a private garage for the purpose of having the vehicle repaired. After investigation, the vehicle was secured and a search warrant was sought. Mr. Filiault was interviewed by police, but he couldn’t account for his whereabouts at the time of the accident. When Mr. Filiault was arrested on November 27, 2020, he admitted striking Kuzy with his vehicle.

Victim Impact Statement

[4] I was also provided with a Victim Impact Statement, which was completed by all the members of Kuzy’s family. The entire Victim Impact Statement was read into the record by Kuzy’s second oldest brother, John Tongiek. The pain that this family has suffered from their grief and loss was apparent in their words. Kuzy’s parents and siblings have suffered an unimaginable loss, and they continue to struggle with their pain. To Kuzy’s parents, James Riek and Rebecca Yat, I sincerely wish that there was something that I could do to ease your suffering. I wish you peace when you think of your child. You have told me, through the Crown, that you accept Mr. Filiault’s remorse, but that for you it is too little, too late. This matter took a long time from the date that Mr. Filiault was charged until today and each day that it remained unresolved caused you additional pain.

[5] Your children, James, John, Nyagaak and Chuni have each expressed their pain and loss. It is very clear to me that Kuzy was a special child in many ways. He had the love of his family. His loss to the entire family was and continues to be profound. One of your children expressed that she felt as though Mr. Filiault believed that the life he took was worthless. I assure you all that Kuzy’s life was not worthless. He mattered in life and he continues to matter today.

[6] The Crown has told me that nothing I do in relation to sentence will appease for you for the loss of this little boy. When there is a loss of life, especially a life so young, I would expect no other belief other than there is no sentence that would be enough for you as this young boy’s family.

[7] What struck me when hearing the Victim Impact Statements being read was that although each member of the family expressed confusion, grief and loss, there was little anger expressed. To be clear, anger was expressed by the family that this child was left lying in the street by the person whose vehicle struck him, but the anger was regarding the way the loss of this child’s life was treated by Mr. Filiault, and anger was not the focus of their statements. This family is one which is closely connected to their Christian faith. I hope and trust that their faith will continue to carry them through this difficult time.

Evidence on Sentencing Hearing

[8] Mr. Filiault was the subject of a Pre-sentence report, which was made an exhibit. During the preparation of the report, it became apparent that Mr. Filiault had disputed an essential fact regarding the obstruct charge, which was noted in the Pre-sentence report. This then led to his Counsel, Mr. DiPietro, asking to be removed on May 17, 2022. On the same date, Mr. Topp stepped forward and was noted as counsel of record for Mr. Filiault. This necessitated an adjournment of the sentencing to August 5, 2022, at which time final submissions were heard. On August 5, 2022, Mr. Topp clarified that Mr. Filiault did accept full responsibility for his actions, including his attempts to hide his identity while having repairs done to his vehicle. It is on this basis that the plea and sentencing hearing continued.

[9] The Pre-sentence report details that Mr. Filiault raised his eldest daughter as a single parent. She is now 25 years old. He has another daughter, who is about 15 years old, but he has little contact with that child, as she lives out of town. Mr. Filiault graduated from College with a license for Heating, Refrigeration and Air Conditioning. He has a work history of over 35 years in that trade. He claimed no prior drug use, despite his doctor noting a history of treatment for opiate addiction, and despite Mr. Filiault’s criminal record.

[10] Mr. Filiault expressed deep remorse for Kuzy’s family. He was noted to have a sincere willingness to try and make amends. He displayed empathy and awareness regarding how his actions have forever impacted Kuzy’s family. He expressed that he will accept whatever punishment is imposed upon him. He advised that he was emotionally unbalanced in the weeks prior to the accident, as he had been attending multiple funerals in the weeks prior to the accident, including one for his stepfather.

[11] Mr. Filiault’s mother reported that Mr. Filiault was a strong support to her, and he assists her multiple times per week, as she has significant physical health concerns. She also confirmed that he has formed a connection with his church.

[12] The report writer noted that Mr. Filiault was the subject of a conditional sentence Order in 2015, and he completed that sentence without any difficulty.

[13] Mr. Filiault advised that he has physical health concerns stemming from a hereditary heart issue, which the report writer was able to confirm.

[14] The report writer says that Mr. Filiault appears to be a suitable candidate for a period of probation, and suggests several conditions, including counseling for mental health and bereavement.

[15] Overall, despite Mr. Filiault making justifications, I would characterize the report as positive.

[16] At the sentencing hearing, Mr. Filiault read into the record his letter of remorse and he spoke directly to the members of Kuzy’s family. He apologized for the matter taking so long in Court. When reading, he was careful to face them and speak to them directly. He was obviously emotional when he spoke to them. He said that he was not asking for their forgiveness, but he hoped that his plea would bring them some closure. He said that he didn’t see Kuzy at all. He said that he was not himself that night, as he had just lost someone very dear to him and that he had promised his dad that he would be at his dad’s mother’s funeral as a pall bearer the next day. He said that he was confused and scared. He has been eaten alive since that day, and he is a complete nervous wreck. In speaking of the loss of Kuzy to his family, he said that he knows how much he loves his own daughter and he could not imagine losing her.

[17] I also had the benefit of letters written in support of Mr. Filiault from members of his family and two letters written by his Physician, Dr. Steve Malone. Dr. Malone confirms that Mr. Filiault has been referred to a Psychiatrist for an evaluation. The second letter confirms that Mr. Filiault has medical conditions which would require follow up with his physicians and medical appointments with specialists.

[18] The letters from family and friends confirm that Mr. Filiault is remorseful and filled with guilt. They indicate that his actions were out of character with the person that they know.

[19] There is also a letter from Mr. Filiault’s church, in which his volunteer contributions to the church are outlined.

Sentencing Considerations

[20] In considering the appropriate sentence, I turn first to the Criminal Code, which stipulates that in failures to remain at the scene, there is a minimum sentence of a fine of $1000 for a first offence and the maximum sentence available is imprisonment for life. I also have available to me the option of imposing a driving prohibition. The statutorily aggravating factors which I must consider are listed in s. 320.22. None of those factors apply in Mr. Filiault’s situation.

[21] For Obstruct Justice charges, the Code does not set a mandatory minimum sentence for the offence of obstructing justice under s. 139(2). The maximum sentence is ten years incarceration.

Sentencing Submissions

[22] Both Crown and Defence agree that a three-year driving prohibition is appropriate in the circumstances. A DNA Order is mandatory on the failure to stop charge and it is discretionary on the Obstruct. Both Crown and Defence also agree that it is appropriate that I impose an Order pursuant to s. 109 of the Criminal Code which would prohibit Mr. Filiault from possessing any weapons as defined by the Criminal Code. Accordingly, I will make those Orders.

[23] In further sentencing Mr. Filiault, the Crown asked two things of me. The first was that I sentence Mr. Filiault on each count to a period of actual jail. The second was that in imposing the sentence, I order that the sentence for each count be served consecutively. The Crown’s position was that the offences are completely distinct, and so deserving of consecutive sentence. She sought a total custodial sentence of actual jail, totalling in range between 18 months to 2 years less one day.

[24] In addressing the length of sentence, the Crown submitted that the sentencing range, as established by prior cases for similar offences, is distastefully low. She expected that the cases would establish a range of three to four years jail, but that isn’t the reality. She urged me to find that although permitting Mr. Filiault to serve his sentence in the community was a permissible option, in her view it was completely inadequate to address specific and general deterrence, which should be paramount considerations for me. Mr. Filiault has a criminal record, and it includes a conviction from 2001 for Dangerous Driving for which Mr. Filiault received a fine. Although it is a dated conviction, it is a driving conviction, nonetheless.

[25] Mr. Filiault also has a theft conviction and two convictions for drug possession and one of those convictions involved possession for the purpose of trafficking from 2015. He was given a 7 month conditional sentence at that time. Regarding this accident, Mr. Filiault didn’t turn himself in to the police, he waited for the police to find him. He initially did not admit any involvement before he accepted responsibility. As well, in meeting with the Pre-sentence report writer, the Crown urges me to find that he was not completely honest, as he denied prior drug use. However, his physician treated him for an addiction and his record includes convictions for drug possession.

[26] In his letter of apology to Kuzy’s family, Mr. Filiault continued to claim that he didn’t see Kuzy, but the Agreed Facts included the fact that the child bounced off the hood of Mr. Filiault’s car. He then went to the Lauzon Landing to see his partner, and he told her that he had hit something. The Crown submits that he clearly had to have known at the time, that he had struck the child and she urged me to find that this calls into question his sincerity.

[27] In the Crown’s submission, all of these factors would make a conditional sentence, or a sentence served by a period of house arrest completely inadequate.

[28] The Defence Counsel, Mr. Topp, pointed out that in sentencing Mr. Filiault, I must not be swayed by my own emotions or by the public’s outrage in placing emphasis on the accident, but rather on the offence, which is a failure to remain at the scene and an attempt to hide involvement, all of which was after the fact of the accident. In short, I am not sentencing Mr. Filiault for causing Kuzy’s death, but rather for failing to stop and aid Kuzy, and for actively attempting to avoid responsibility by interfering with evidence relating to failing to stop.

[29] Mr. Topp submitted that I must focus on the offences and the offender. I cannot engage in speculation about why Mr. Filiault failed to remain at the scene, after his vehicle struck the child.

[30] Mr. Topp urged me to find that Mr. Filiault has medical issues which would cause concern if he were incarcerated. Given what we currently know about penal institutions and their inability to provide access to specialists, as suggested by Dr. Malone, Mr. Topp urged me to find that Mr. Filiault won’t likely get the medical care that he needs, if he is incarcerated rather than given a conditional sentence.

[31] In addition, Mr. Filiault pled guilty, which is a sign of his remorse. In so doing, he has spared the Victim’s family the pain of going through even more delay and a trial. He observed that the delay in the sentencing wasn’t entirely the fault of Mr. Filiault, given the effect upon the judicial system caused by the Covid 19 pandemic.

[32] Mr. Topp agreed that specific and general deterrence are paramount, but that I have to assess those factors along with assessing Mr. Filiault. He points out that there are 9 letters of support for Mr. Filiault. He is a dedicated family man, and his family attended court on his behalf. He was a single parent who raised his daughter. He worked 35 years in heating and cooling. At the time of the accident, he was suffering from the losses of his own family member and of a close family friend. He attended the funeral of one of those persons on the following day of the accident.

[33] Mr. Topp agreed that this is a serious and tragic case. He agreed that a conditional sentence is available, and submitted that I have to assess the appropriateness of that sentence in light of Mr. Filiault’s circumstances. Mr. Topp urged me to find that a 12‑month sentence of house arrest with very strict terms prohibiting Mr. Filiault from leaving his home, except permitting him to attend medical appointments and work, does send a strong message to the community. This is so, especially since Mr. Filiault did spend about 12 days in real jail upon his arrest, during a time when concerns regarding COVID-19 and its affects upon persons in institutions is well known to the Court.

[34] Mr. Topp suggested that I can split the sentence between the two offences with 4 months being attributed to the obstruct justice charge, and 8 months being attributed to the failure to remain charge, to be served consecutively, and to be served in the community.

Cases Provided by Counsel

[35] In considering the above submissions, I have also considered the prior legal cases that were provided by both Crown and Defence. This addresses the concept of parity, that like offenders and offences must be the subject of similar offences, but also take into consideration factors that are specific to the offender and circumstances of the offence. The provided cases are instructive in determining the appropriate sentencing range. However, what also must be considered is that the Criminal Code was amended to prohibit an imposition of a conditional sentence in these cases about 12 years ago. That prohibition was struck down by the Supreme Court of Canada in 2020. Accordingly, there is a gap in time in which a Conditional Sentence could not be imposed by operation of law. Therefore, any cases decided before 2020 must be viewed with this in mind. As well, it is also important to remember that the Criminal Code was amended in 2019 to impose a mandatory minimum fine of $1000 in the case of a first offence and incarceration of 30 days on a second offence. For each subsequent offence, the minimum sentence is one of 120 days. That also must be borne in mind in reviewing the cases provided.

Crown Cases

[36] The Crown provided four cases in total.

[37] R. v. Schmitt, which is an unreported decision of Justice L. Dean from this Court from 2011. In this case, Mr. Schmitt struck a 15-year old cyclist and left the scene. It was dark out, and the bicycle had no rear reflectors. The cyclist was riding his bicycle on the same side of the road as Mr. Schmitt was driving, with his back to Mr. Schmitt’s vehicle. Mr. Schmitt was driving at a speed below the speed limit. He had briefly taken his attention from the road and then struck the cyclist. Mr. Schmitt attended the Leamington Detachment of the Ontario Provincial Police and turned himself in later the next day. After the accident, Mr. Schmitt parked his vehicle and didn’t tamper with it. Mr. Schmitt admitted in a second interview that he had smoked marijuana about an hour and-a-half before the accident and that he had a sip of beer as well. Mr. Schmitt was 18 years old at the time of the accident, and he had no prior record. He was also employed on a full‑time basis. The issue in this case was whether or not a conditional sentence was available. At the time of the decision, the Criminal Code prohibited conditional sentences if the offence was a serious personal injury offence. Justice Dean found that the offence of failure to remain was a serious personal injury offence. He went further, however, and found that it would not be appropriate in the circumstances, even if it were available to him. Justice Dean observed that the duty to stop, render aid and cooperate with an accident investigation is not an onerous duty, despite the anxiety that understandably comes upon anyone involved in such an accident. Many questions regarding the offender and the offence remain unanswered when offenders fail to remain. However, Justice Dean was careful to observe that on the facts of this particular case, a conditional sentence would not adequately address denunciation and deterrence. He imposed a five‑month custodial sentence, after observing that the sentencing range was between five and twelve months.

[38] R. v. Gourlay, [2018] B.C.J. No. 1012. This is a sentencing decision from the B.C. Supreme Court. In this case, the offender pled guilty to the same offences that Mr. Filiault pled guilty to. After reviewing several cases, Justice H. MacNaughton observed that sentences for fail to remain at the scene of an accident resulting in death are typically higher than sentences for obstruct justice, based on the caselaw and based on the maximum possible sentences as set out in the Criminal Code. In this case, the offender was 42 years old, and had no prior record. He pled guilty, which spared the family the pain of a trial. The sentence was one of 10 months for fail to remain, two months for obstruct, concurrently served. This decision did not consider a conditional sentence as it was not an option at the time. It is not binding on me but I did find parts of this case to be particularly helpful in making my assessment.

[39] R. v. West, [2010] N.B.J. No. 174. In this case, Ms. West hit a person in a wheelchair crossing against a light in very poor weather. She didn’t stop her vehicle and insisted that she would never turn herself in. She was arrested by police months after the incident, after the vehicle had undergone extensive repairs. Several persons were involved in the coverup of the accident, and her father vaguely threatened the persons who had been in the vehicle to not disclose any information. The positions of both Defence and Crown were that a conditional sentence would not address specific and general deterrence. Although the accident itself was unavoidable, there was an element of threats to others with knowledge about the accident and Ms. West’s involvement. The Court found that the elaborate planning related to having the vehicle repaired over the following weeks was also aggravating. The sentence was one of two years plus one day in total. This case is not binding upon me. It is distinguishable on the basis that the vague threats by Ms. West’s father factored heavily in the sentencing of Ms. West.

[40] R. v. Porter, [2017] O.J. No. 5784. This was a trial decision, where Mr. Porter was found guilty of Failure to Remain. In this case, Mr. Porter hit a pedestrian with his vehicle and left the scene. It was dark and wet, when the victim crossed a very busy residential street that was separated by a median. The vehicle was immediately taken to a body shop. After some repairs were made, the manager of the shop became aware that the vehicle was involved in a hit and run. He confronted Mr. Porter, and later confirmed that the police were aware of the location of the vehicle. Both Crown and Defence took the position that incarceration was necessary, but they differed on the length of incarceration required. The Court found that Mr. Porter took steps to hide and destroy evidence, lied to many, faked vandalism to the car and attempted to have the vehicle fixed to hide his involvement. He filed a police report regarding the vandalism claim. The Court found that he engaged in calculated deception. He turned himself in, but never accepted responsibility nor did he ever express remorse. The Court found that the appropriate range for the offence of leaving the scene of an accident causing death in the circumstances of this offence was 18 months to two years. The Court then gave Mr. Porter credit for strict bail conditions and for presentence custody. This case is not binding on me, and is distinguishable as it was a trial level decision and Mr. Porter created an elaborate lie, including a false police report to cover up his involvement.

Defence Cases

[41] The Defence provided 10 cases in total.

[42] R. v. Areco 140 C.C.C. (3d). This case is an Ontario Court of Appeal case from 1999. The Accused was convicted of Dangerous Driving causing death and two counts of Dangerous Driving causing bodily harm after a trial and was sentenced to one year incarceration. The Court of Appeal found that the Trial judge erred in not considering a conditional sentence for Mr. Areco as, in his view, a conditional sentence would have demeaned the seriousness of the offence. The Court held that it is not enough to simply look at the consequences of the offence, without also considering the conduct that led to the offence and also considering the circumstances of the offender in considering the propriety of a conditional sentence. [1] Mr. Areco was 22 years old at the time of the offence, worked full-time and had no criminal record. He was permitted to serve the balance of his sentence in the community, on terms that included an 11:00 pm curfew and 180 hours of community service. This case is distinguishable on its facts, as it is a sentencing for Dangerous Driving and not Failure to Remain. However, it is binding upon me in that I must not simply reject the possibility of a conditional sentence based solely on the consequence of the offence. I must also look at the offender and on the conduct that led to the offence. I also note that dangerous driving causing death is considered to be a much more serious offence than failing to remain at an accident causing death. In the former, a consideration is the fact of the action that caused the death. In the latter, the death is not the focus, it is the actions afterward which are the focus.

[43] R. v. Dickson, [2004] O.J. No. 6079. The offender was the subject of a preliminary inquiry, and it appears he then pled guilty to the offences of failure to remain causing death and refuse breath sample. The Court sentenced Mr. Dickson to a 12 month conditional sentence, during which time he was to prepare a half-hour presentation to the local high school outlining the consequences of failing to remain at the scene, refusing to provide a breath sample and drinking and driving. This case is not binding upon me, and it is distinguishable, as Mr. Dickson also pled guilty to refuse breath sample as well as he had a plan regarding making a presentation as part of his expression of remorse and part of his rehabilitation.

[44] R. v. Helton, [2007] B.C.J. No. 2622. In this case, the offender pled guilty to the offence of failure to remain at the scene causing death. The accused was 21 years old. He confessed after his arrest about a year after the accident. He had a driving history of speeding offences and driving without insurance and was prohibited from driving at the time of the offence. He had no criminal record. At the time of the accident, Mr. Helton’s grandmother was dying. The Court accepted that he panicked and left the scene but maintained his silence even after the stress of illness subsided. Mr. Helton’s manner of driving didn’t cause the accident. There was a positive presentence report, and Mr. Helton expressed deep regret and remorse. The Court found that a conditional sentence in these circumstances was appropriate, and imposed a 12 month conditional sentence. During the sentence, Mr. Helton had to complete 50 hours of community service and to undergo counseling.

[45] R. v. Soos, [2021] B.C.J. No. 2624. After a joint submission, the Court imposed a conditional sentence of six months duration and what the Court characterized as a mandatory fine of $1000. The offender turned herself in the following day after a fatal accident involving a pedestrian who was crossing the street, but not in a crosswalk or at a corner. Her vision was impeded by the setting sun. She then fled the accident. Witnesses indicated that Ms. Soos was not speeding or driving erratically. She had no prior criminal record and no prior driving history. She struggled with depression and anxiety, caused by a difficult childhood. She took no steps to hide her involvement. This case is not binding upon me, but it is instructive.

[46] R. v. Waddell, [2005] B.C.J. No. 1600. The 68-year old offender had been drinking prior to an accident whereby he struck and killed a pedestrian. He had no prior record. He failed to stop his vehicle, and didn’t admit responsibility for two months. He waited for the police to find him. He was a former member of the Armed Forces, and was a commissionaire for CSIS. He pled guilty to failing to remain and was sentenced to 9 months imprisonment, to be served conditionally, with an 18-month driving prohibition. The Crown sought a sentence of three to nine months incarceration. The Defence didn’t disagree with the range, but did ask that the sentence be served conditionally. A conditional sentence was imposed, and the Court cited the age of the offender and his previously spotless record as a major factor in the decision.

[47] R. v. Pawa, [1998] B.C.J. No. 896. This was an appeal of a sentence of 4 months to be served conditionally for dangerous driving causing death, and a $1000 fine for failure to remain. There was a trial on the dangerous driving count, but the offender pled guilty to the failure to remain charge. The offender had a prior record of motor vehicle offences, and didn’t have a valid license at the time of the offence. The Court of Appeal varied the sentences to 9 months to be served conditionally for the dangerous driving and a consecutive 3 months to be served conditionally. The Court also imposed more restrictive terms in relation to the conditional sentence. The Court found that the original sentence imposed by the sentencing judge failed to reflect the seriousness of the offences. This decision is not binding upon me, as it is from B.C. but it is instructive and persuasive.

[48] R. v. Taha, [2003] A.J. No. 1360. This sentencing was after a guilty plea to failure to remain, driving without insurance, and careless driving. He had a prior driving record. Upon striking the 70-year old victim in a crosswalk, Mr. Tawa stopped, tried to help the victim to her feet, moved her to a sidewalk, went to a gas station and called an ambulance and then drove home and covered his vehicle up.

[49] R. v. Sanghera, [2009] B.C.J. No. 128. This case concerned a plea of guilty by the offender to two counts of failure to remain at the scene of an accident. One person was injured and one person died in the accident. The two persons were struck in a crosswalk, but they had not activated the signal which would have activated the light to control the crosswalk and traffic. It was dark, and there was no indication of braking or swerving before the impact. The evidence showed that the offender was not speeding when he struck the two pedestrians. When first interviewed by police, the offender denied involvement. The vehicle was repaired, and the offender claimed that he had been the victim of a road rage incident, in which his vehicle was struck by a baseball bat. The offender was arrested and confessed about 10 months later. The Court imposed a conditional sentence of one year.

[50] The Defence also provided a copy of an Information or charging document from this Court. A review of that Information shows that the offender pled guilty to failure to remain at the scene of an accident where a person was injured. She was given a 12 month conditional sentence in 2011. This information is of limited assistance, and serves only to confirm that a conditional sentence was an available option at that time.

[51] The Defence also provided a copy of an Indictment or charging document from the Superior Court in Windsor, in which the offender pled guilty to failure to remain at the scene of an accident where a person was injured, and was sentenced to a 9 month conditional sentence and two years probation, with a one year driving prohibition. Similarly to the above case, this is of limited assistance and serves only to confirm that as of 2010 a conditional sentence was an available option.

[52] The Court also reviewed two other cases which were of benefit.

[53] R. v. Oliveira 2016 ONSC 120. In this case, the offender pled guilty to failure to stop at the scene of an accident involving a death. The offender struck a person on a bicycle and killed him. The bicycle was either stopped or traveling very slowly in the centremost westbound driving lane. When struck, the deceased impacted with the hood and windshield of the offender’s vehicle, and then flew into the path of an oncoming vehicle, where he was struck. The offender failed to stop and fled the scene and went to work. Forty hours after the accident, the offender turned himself in. While he had no prior criminal record, the offender had an extensive record for driving offences. The offender was sentenced to six months jail and was given credit for strict bail conditions. The sentence imposed was 90 days, and the offender was permitted to serve the sentence intermittently. When considering the appropriate sentence, Justice McWatt relied on a very helpful chart in which was outlined the range of sentences imposed in prior cases of failure to remain convictions. The lowest sentence was 90 days served intermittently for an offender with no prior record, who did not contribute to the accident by bad driving, and who was cooperative with police when confronted. The highest sentence was one year in jail. In one such case it was imposed at a time when a conditional sentence was not available. Those cases involved either a previous conviction for leaving the scene of an accident, or that the offender’s vehicle was not equipped with proper headlights and his vehicle was uninsured at the time of the accident. While not binding on me, I find that this decision assists in assessing what factors the Court has considered in assessing the range of sentence.

[54] I also reviewed R. v. Forrestal, 2021 ONCJ 202. In this decision, Justice Prutschi considered the potential impact of COVID-19 on the offender, and properly observed that it is a valid consideration, but cannot make an otherwise unfit sentence into a fit sentence. The offender had no prior criminal record but she did have a prior driving record. She was arrested the day after the accident, and did not have a trial. She lied to her family, her insurance company and to the police regarding the cause of the damage to her vehicle. She claimed that it had been vandalized, and identified a parking lot as the place where the damage was caused. It wasn’t until after her arrest that she finally confessed. The issue for Justice Prutschi was to determine if a conditional sentence was available. After finding that it is now available, he then sentenced the offender to 12 months to be served conditionally with strict terms. This decision is not binding, but I do find that it is helpful to me in making my assessment regarding Mr. Filiault.

Sentencing Principles

[55] I will turn now to the sentencing principles in the Criminal Code.

[56] Section 718 provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.

[57] Section 718 then lists a number of sentencing objectives which further that purpose:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Sections 718.1 and 718.2 of the Code set out a number of other sentencing principles intended to guide judges in crafting a fit and proper sentence that will give meaningful effect to one or more of the sentencing objectives set out above. The relevant sentencing principles applicable to this case are:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, …

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[58] When determining a fit and proper sentence, a sentencing judge must consider all relevant factors.

[59] The comments by Justice MacNaughton in Gourlay are instructive when applying the sentencing considerations. He found that in assessing the sentencing range, one must be careful in examining those cases involving avoidance of liability when an obstruct charge is not laid. Treating the actions of hiding evidence as an aggravating factor on the Failure to Remain when an Obstruct charge is also laid duplicates the assessment and should not take place. Sentences at the highest range are typically imposed when there is evidence of bad driving or impairment and, therefore, contribution to the accident. There is also some evidence of avoidance of criminal liability rather than civil liability. Sentences at the lowest end typically are imposed when there is no prior criminal record or record for driving offences. [2]

Aggravating Factors

[60] First, I will turn to specific findings relating to these offences. Given Mr. Filiault’s equivocations in regard to his plea and in regard to his background, I find that I cannot simply rely on what Mr. Filiault said to the Probation Officer in the preparation of the report or in his comments to the Court. I have examined the totality of the evidence in order to reach the necessary findings.

[61] I accept that Mr. Filiault didn’t see Kuzy in the seconds before the accident. There is no evidence of bad driving. In fact, one witness said that Mr. Filiault’s vehicle swerved, but that the child hit the front passenger side of the vehicle. At least one witness to the accident wasn’t certain that she saw a person in the road and she had to tell the driver of the vehicle in which she was traveling to slow down. It was 8:48 pm and it was dark. Kuzy had escaped the house and the supervision of his family, and he was running into traffic on Jefferson Boulevard. He was reaching for the door handles of at least one moving vehicle, which had to swerve to avoid hitting him. One witness said that Kuzy appeared to be playing chicken with moving vehicles. This accident was an almost unavoidable tragedy and was not caused by anything that Mr. Filiault did or did not do.

[62] I also accept that Mr. Filiault may not have known that he had struck a person when he left the scene, but if he didn’t know, he was reckless in this regard. He pled guilty to that charge and accepted the facts. An essential element is that either he knew or he was reckless as to being involved in an accident with a person and he failed to stop, give his name and render assistance. After the accident, Mr. Filiault was overheard by a witness talking to his partner and he appeared to be distraught. His partner advised the witness that Mr. Filiault hit something. The Crown says that Mr. Filiault had to have seen Kuzy as the child bounced off of the hood of Mr. Filiault’s vehicle. Kuzy was 7 years old. I have no evidence of how tall he was, but the evidence disclosed that Kuzy’s body didn’t impact the windshield. Mr. Filiault saw something because his vehicle swerved. He knew that he had hit either an object or a person, because the witnesses heard the impact from a short distance away, so he must have heard it too. It is inconceivable that he would not have felt the impact. Jefferson Boulevard is a residential street in the City of Windsor. It would have been reasonable and perhaps likely that there would be pedestrians, even after dark. He had an obligation to stop and at least verify that he didn’t hit a person. He didn’t do that.

[63] I also find that there was nothing that Mr. Filiault could have done to assist Kuzy if he had stopped. One witness who immediately tended to Kuzy noted that Kuzy was not breathing and had no heartbeat. His injuries were catastrophic and fatal. That being said, Mr. Filiault had a legal obligation to stop and give his name and to permit the police to investigate this child’s tragic death.

[64] I also find that I cannot find as an aggravating factor to the Failure to Remain charge that Mr. Filiault took active steps after the fact to cover up his involvement in the accident. This is so, because Mr. Filiault was charged with Obstruct for that offence, and the offences must be considered separately. If I am to treat these offences as worthy of sentencing consecutively, which I find I must do, the factors relating to the coverup are to be attributed to the Obstruct and not to the Failure to Remain. This is so, as those offences are discrete.

[65] The Failure to Remain charge was complete when Mr. Filiault drove away after hitting Kuzy with his car.

[66] The Obstruct began between November 15 and November 16, 2020, when Mr. Filiault removed the damaged bug deflector from the hood of the vehicle, disposed of the damaged front headlight assembly and signed the COVID-19 sheet with a false name. It continued when Mr. Filiault secreted the vehicle behind the Time Out Bar until Mr. Filiault moved it to a friend’s garage and arranged for additional repairs. Mr. Filiault clearly was attempting to avoid an investigation. Otherwise, there is no reason to sign a false name or to secrete the vehicle. Presumably by then, Kuzy’s death would have been made public and the media and social media requests for information that were made by Windsor Police had come to Mr. Filiault’s attention. Although the steps taken were unsophisticated and ineffectual, they were deliberately taken.

[67] Mr. Filiault has a prior criminal record, with 4 prior convictions. Three of his convictions were from 2003 or before. One of those was for dangerous operation of a motor vehicle. Each of those convictions resulted in a fine. There is one conviction from 2015 for possession of a drug for the purpose of trafficking. Mr. Filiault was given a 7‑month conditional sentence for that conviction. There are no breaches of any kind on his record.

[68] Therefore, I cannot find any bad driving or contribution toward an unavoidable accident. The aggravating factor regarding the Failure to Remain lies in that Mr. Filiault has a prior record that includes a driving offence. This is somewhat ameliorated by the fact that the driving conviction was 22 years ago, and his last criminal conviction was 7 years ago. He has a record, but it is limited and dated.

[69] With respect to the obstruct charge, the aggravating factor lies in the secreting of the vehicle while awaiting arranged repairs. Overall, the coverup efforts of his involvement were unsophisticated and ineffectual. There were no extensive repairs to the vehicle, but arrangements were made. There were no attempts to cause false investigations regarding theft or vandalism of his vehicle, and there were no threats of violence toward potential witnesses.

[70] An additional aggravating factor is the impact of the failure to remain upon the loss of this child upon his family. His loss is profound and ongoing, but this family also suffered uncertainty and pain at the thought of this child being left lying in the street as though his life didn’t mean anything. This added to this family’s pain and they will endure this pain forever.

[71] I turn now to the mitigating circumstances.

Mitigating Circumstances

[72] The first is that Mr. Filiault accepted responsibility and pled guilty rather than have a trial. This is somewhat ameliorated because Mr. Filiault didn’t turn himself in, but simply waited until he was arrested on November 27, or 12 days after the accident. It is, however, a significant sign of his remorse. It saved Kuzy’s family the pain and uncertainty of a trial and it saved significant judicial resources at a time when they are at a premium. The matter did take 21 months to be completed, but I also observe that the entire system has been significantly affected by COVID-19. I also observe that Mr. Filiault pled guilty in March of 2022, which was about five months ago. Part of the delay in sentence was caused by Mr. Filiault and his equivocation regarding an essential fact, which caused unnecessary delay of two months.

[73] Mr. Filiault’s remorse appears to be genuine. In the letters of support filed by family members and friends, he is noted to be consumed by guilt and not the same person that he was before. In this way, he has demonstrated that he understands the significance of failing to stop his vehicle and in attempting to avoid detection. He wrote a letter of apology directly to Kuzy’s family and when he read that letter in court, he was careful to face Kuzy’s parents and direct himself to them. He apologized for his actions. He indicated that he could never ask for their forgiveness.

[74] Mr. Filiault’s Pre-sentence report is positive, despite the fact that he equivocated regarding the facts and was not truthful about his past addiction. I find that he was trying to put himself in the best possible light for the report writer and for the Court. Having said that, he presented as extremely remorseful and displayed empathy for the family. The report writer verified with other sources much of what Mr. Filiault claimed regarding strong family support, medical needs and the impact upon him. The report writer also verified that Mr. Filiault has not breached his bail conditions and didn’t breach his conditional sentence order when he was serving that sentence. He was cooperative and responsible when he was being supervised. The report writer identified that Mr. Filiault would benefit from grief and bereavement counselling and mental health support. In light of this, Mr. Filiault has excellent prospects for rehabilitation. He is a suitable candidate for probation and has a history of following Court Orders.

[75] Mr. Filiault is a person who worked in the Heating and Cooling industry for over 30 years. He is unable to continue in that work, but he volunteers at his church, which he attends weekly. He has formed community supports as well as family supports and he gives back to the community.

[76] Mr. Filiault’s family has attested to his character. He is known as a strong family man, who gives freely of his time when others are in need. He has served as a mentor for friends and family. He helps care for his mother, who has her own needs.

[77] I also accept that Mr. Filiault was “not himself” at the time. He had suffered several losses in the period before the accident. He had lost someone close to him the day before the accident, and he had committed to attend a funeral the day after the accident. He told the police that he had attended a funeral the day of the accident and the day following the accident, when he was first interviewed. There is no indication in the facts that he actively lied to the police, but it is clear that he also didn’t confess at that time. He had the right to remain silent at this time, so I cannot find anything other than it somewhat ameliorates his confession when he was arrested on a later date.

Additional Factors

[78] Mr. Filiault served 12 days in jail upon his arrest. This is the first time that Mr. Filiault spent time in a jail setting. He will be credited with 18 days presentence custody in the ultimate calculation of sentence. I take judicial notice that at the time of his incarceration, the entire local community was subject to significant restrictions and vaccines for COVID-19 had not yet been circulated. Shortly after Mr. Filiault’s arrest, this community went into a full lockdown, with anyone but essential workers working from home. Shortly after this community locked down, the rest of the Province of Ontario was locked down. This would certainly have had an impact upon the Southwest Detention Centre. I also take judicial notice that the correctional facilities, both at the time and in current days, have necessary protocols which require newly incarcerated individuals to isolate for at least 14 days. That means that Mr. Filiault would have been held in isolation without time out of his cell or contact with other inmates for the entire time of his presentence custody. If he is sentenced to real jail rather than a conditional sentence, of necessity he will be held in the same manner for the first 14 days of his sentence.

[79] Mr. Filiault has physical health needs and mental health needs, for which he requires regular and follow-up care. There is some question as to whether or not the correctional system is able to properly address those needs. Dr. Malone has provided two letters. In one of those letters, he says that he is not aware of any medical contraindications to Mr. Filiault being incarcerated. He recommends regular follow-up care, and attendance and follow-up care with specialists. Dr. Malone did verify Mr. Filiault’s claim of a hereditary heart condition and multiple health issues with the report writer. Mr. Filiault’s family has also confirmed that Mr. Filiault has a heart condition. I have no other details regarding Mr. Filiault’s medical needs, so what I am left with is Dr. Malone’s recommendation regarding follow-up care and specialist appointments.

[80] I turn now to the assessment of the appropriate sentence.

[81] Both of these offences are serious and require denunciation and deterrence as the primary objectives of my sentence. The sentencing objective regarding rehabilitation is also important, but it is secondary to denunciation and deterrence. There is no amount of reparation that will assist Kuzy’s family, but Mr. Filiault’s actions in giving back to the community address this consideration. I have accepted Mr. Filiault’s remorse, so specific deterrence is no longer a significant consideration.

[82] I must consider non-custodial sentencing options, if one is available in all of the circumstances of the offence and the offender. I agree with both Counsel that a non‑custodial disposition would not send the appropriate message to the community or to Mr. Filiault. These offences, especially when considered together, call for a jail sentence. The duty to stop after an accident is not an onerous one. Had Mr. Filiault simply stopped, he wouldn’t be before me. Had Mr. Filiault not then taken steps to hide his involvement he would only be facing the failure to remain charge. In the days after the initial act of failing to stop, when emotions would have settled, Mr. Filiault continued to actively avoid detection and to attempt to hide evidence of his involvement. Those actions offend the administration of justice and calls for a significant penalty.

[83] The cases provided demonstrate that a conditional sentence can be an appropriate sentence for the offences of failure to remain and for obstruct, in the right circumstances. It can send the appropriate message of denunciation and deterrence to the community and to the offender. The leading case on this point is R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. Twenty-two years ago, in a case of dangerous driving causing bodily harm and dangerous driving causing death, the Supreme Court of Canada found that a Conditional Sentence of imprisonment was available and appropriate for driving that caused serious injury and death. In that case, the Court said that no offence was to be considered ineligible, unless it was specifically prohibited by the Criminal Code. Some of the prohibitions in the Criminal Code regarding imposing a Conditional Sentence were struck down recently, in the case of R. v. Sharma, 2020 ONCA 478. Accordingly, I must give it serious consideration.

[84] What I must do is to determine if the ultimate sentence would be one of less than two years duration. If that is the case, I must then determine if the sentence can be served in the community rather than in a jail setting using the criteria that remain in the Criminal Code.

[85] Neither the Crown nor the Defence have suggested that the sentence should be more than two years. I agree. Therefore, the first precondition is met, and I can consider whether a conditional sentence sends the appropriate message and whether Mr. Filiault should be granted such a sentence.

[86] The last remaining factor is that a conditional sentence may only be imposed if it would not endanger the safety of the community, and it is consistent with the fundamental purposes of sentencing.

[87] There is no suggestion that permitting Mr. Filiault to serve his sentence in the community would endanger the community.

[88] It is in assessing whether or not a conditional sentence would be consistent with the fundamental purpose and principles of sentencing that the Crown and the Defence disagree.

[89] I return at this point to my analysis above. Denunciation and Deterrence are the paramount sentencing principles. Rehabilitation is a lesser consideration, but a consideration nonetheless. Each case reviewed by me where a conditional sentence was rejected, it was rejected on the basis of some factor that doesn’t exist for Mr. Filiault. Mr. Filiault didn’t falsely report an offence to explain the damage to his vehicle. He didn’t threaten potential witnesses to remain silent. He didn’t drive in a manner that somehow contributed to the accident. He does have a record, but it is dated. It does include a 22‑year old driving conviction, but that record is so dated that it is not a serious consideration. He was granted a conditional sentence seven years ago, and he completed it without difficulty.

[90] Given all of the above, I find that a conditional sentence, properly crafted with appropriate and significant limitations on Mr. Filiault’s liberty would send the appropriate message to the community. What is contemplated is that the community would be fully informed of the entirety of the effects of the sentence.

[91] Some view a conditional sentence of imprisonment to be much more difficult to serve than a sentence in a jail. Our experience over the past two and-a-half years would serve to bring home to the public exactly how intrusive and restricting home confinement can be. As well, a Conditional Sentence is typically longer in duration than a sentence in an institution. It involves conditions that can restrict the liberty of the offender entirely, except for periods permitting attendance for work, counselling and medical appointments and emergencies. I note that some of the conditional sentences that have been imposed in the cases that I have reviewed involved a curfew, rather than a term of house arrest, but I do have the ability to place Mr. Filiault on terms of absolute house arrest with limited exceptions. If I place Mr. Filiault in a custodial facility, he will only serve two-thirds of that sentence. If I place Mr. Filiault on a conditional sentence, he will serve each and every day of the sentence subject to conditions.

[92] His Conditional Sentence will be dependant upon being accepted for GPS monitoring by Recovery Science Corporation. He will have to satisfy that agency that he has a residence where he can be monitored and that he is amenable to the GPS monitoring. His conditions will have to include terms that are specific regarding any exceptions to his house arrest terms, so that he can be properly monitored. That agency so closely monitors individuals that if Mr. Filiault chooses to breach his term of house arrest, it will immediately come to the attention of the Conditional Sentence Supervisor.

[93] Further, he will have restrictions put on him regarding alcohol or drug consumption and he will be required to present himself at the door of his residence upon request by either the Police or his Conditional Sentence Supervisor.

[94] In addition, if Mr. Filiault breaches any term of his conditional sentence, he stands a good likelihood of serving the entire remaining balance of his sentence in a custodial facility.

[95] However, before I impose the sentence, I observe that I will only impose this sentence if the GPS tracking program is complied with.

[96] With respect to the length of the sentence, I observe that the sentences in the range suggested by the Crown were reserved for offenders who had factors that are not present regarding Mr. Filiault. I agree with Mr. Topp’s assessment for the appropriate range. This is particularly so, since I will not simply be imposing a curfew, I will be imposing house arrest conditions. A 12-month Conditional Sentence sends the appropriate message to the community that if these offences occur, they will be dealt with seriously.

[97] Accordingly, the sentence will be one of 8 months on the Failure to Remain, and 4 months on the Obstruct to be served consecutively and all of which is to be served in the community with strict terms of house arrest and GPS monitoring, to be followed by 12 months’ probation on each count concurrently.

Released: August 16, 2022 Signed: Justice S. Murphy

Notes

[1] R. v. Areco 140 C.C.C. (3d) para 11 [2] Gourlay, para 76 and 77