DATE: 2023.04.21 St. Catharines
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRENT ARMITAGE
Before Justice Fergus ODonnell
Reasons for sentence delivered orally on 21 April, 2023
Counsel: Ms. A. Galea and Mr. M. Sokolski........................................................................ for the Crown Mr. Gary Clewley................................................................. for the defendant, Brent Armitage
Fergus ODonnell J.:
Overview
- Brent Armitage appears today for the imposition of sentence after his guilty plea to a charge of failing to remain at a collision that resulted in death, in particular a collision between Mr. Armitage’s vehicle and Mr. Nino Lattanzio, a fifty-one-year-old cyclist out for a typical morning ride in Lincoln early in the morning on 25 July, 2021.
- Mr. Sokolski for the Crown says that the appropriate sentence is a real jail sentence in the range of eighteen to twenty-four months, followed by two-to-three years of probation. Speaking on behalf of Mr. Armitage, Mr. Clewley recommends a conditional sentence, or what is known in the vernacular as “house arrest”.
- It is in the nature of judges’ decisions that it is exceedingly rare for everyone to agree with any given result. Indeed, if everyone were in agreement with the outcome, the judge would not typically have to make a decision. What happened on 25 July, 2021 was inescapably tragic and the aftermath of Mr. Lattanzio’s untimely death will never fully dissipate, neither for Mr. Lattanzio’s relatives and friends nor, indeed, for Mr. Armitage and his family and friends, although the impact on them is not of nearly the same measure as it does not involve the loss of a loved one. In an atmosphere of such deep and raw emotion, it would be unrealistic to expect consensus. What one does hope for in delivering reasons is that by the end of the reasons the interested parties and the community at large understand the overall landscape, the relevant considerations and why the judge reached the decision he or she reached. It would be unreasonable for me to expect everyone or perhaps even anyone, depending on the case, fully to agree with what I write.
General Principles
- Writing after his experience as a juror in a criminal trial, the British philosopher and social critic G.K. Chesterton wrote about the danger of people becoming so used to their professional environment that, over time, they risk losing sight of the individual humanity of those with whom they interact—defendants, victims, witnesses--, creating the risk of the judge seeing only, “the usual man in the usual place”.[^1] It is a valid concern, which one should always keep in the back of one’s mind. It is, therefore, worthwhile at times to begin with basic principles, especially so in a case involving the death of a member of a family and of the community, Mr. Lattanzio, whose passing by all accounts appears to have left an oversized gap in the lives of many.
- The Criminal Code defines the purpose of the criminal law in Canada as being the protection of society and the encouragement of respect for the law and the maintenance of, “a just, peaceful and safe society”. The Code expects judges to achieve that goal by imposing sentences that focus on specific objectives. Those objectives include denouncing the offender’s crime and the harm created by it, deterring the offender and others from committing crimes, separating an offender from society where necessary, assisting in rehabilitating offenders, providing reparations for the harm done and creating a sense of responsibility.
- The Criminal Code provides a series of tools to achieve those objectives, including, depending on the offence: discharges, criminal convictions, fines, probation, conditional sentences and sentences of real jail. It goes without saying that some of those options will be irrelevant in relation to some offences. It also goes without saying that an individualized sentence, one tailor-made to the offender and his specific crime, is likely to achieve the best possible long-term outcome for society. Indeed, a sentence determined in that way is a requirement in the Criminal Code and has been defined by the Supreme Court of Canada as a constitutional requirement.
- As I have noted earlier, the separation of an offender from society is one of the possible, legitimate objectives of a sentence as defined by the Criminal Code, but it is qualified by the words, “where necessary”. The Criminal Code, as defined by Parliament addresses the suitability of jail in sentencing in a number of places. In s. 718.2, the Code requires that all reasonable options other than jail must be considered unless the offence is so serious that all non-jail options would be unfit.
- Almost twenty-five years ago, Parliament created the conditional sentence option for many offences. A conditional sentence is a sentence where the offender is confined, but where he serves the sentence in the community, living at home, typically with specific exceptions to allow him to leave and most often subject to electronic monitoring, which ensures a high degree of compliance. Very recent amendments expand the availability of conditional sentences by removing various lists of offences for which a conditional sentence could never be granted.
- This all happens in a context. The idea that high incarceration rates make a society safe may be relatively widespread, perhaps because it can be used for political ends, but it is a pernicious fallacy. The great republic to the south of us, for example, has one of the highest incarceration rates in the world,[^2] but would never be perceived as being safer from crime than Canada. In one comparison, Canada has the fourth-highest incarceration rate of the twelve founding NATO states[^3] with whom we share some broad similarities or, by a global measure, we rank one-hundred-and-sixty-fourth out of two-hundred-and-twenty-three countries, in which the number one country has the highest rate of incarceration, placing us at about the one-third level on that list.
- Ultimately, the task in any criminal sentencing is to use the various tools in the Criminal Code to devise a consequence that best reflects the seriousness of the crime and the offender’s moral culpability, while keeping society safe in the long-term.
The Facts
- Around 7:30 a.m. on Sunday morning, 25 July, 2021, Mr. Lattanzio went out for a bike ride. It was full daylight with good visibility and the road he was on at the time he was struck was dry, straight, level and in good repair, with an 80 km/h speed limit. As Mr. Lattanzio was riding along the North Service Road in Lincoln, Mr. Armitage was approaching from behind. As he came upon Mr. Lattanzio, Mr. Armitage’s sedan drifted off the road and struck Mr. Lattanzio, throwing him off his bicycle, high into the air and onto the shoulder, causing him to suffer severe trauma to his head and torso, which was ultimately fatal, despite the efforts of passers-by, emergency responders and the hospital.
- The damage to Mr. Armitage’s car was substantial and obvious, including damage to the hood and roofline on the passenger side. His windshield was spider-webbed with cracks across three-quarters of its width, leaving a small undamaged area directly in front of the driver’s seat. There can be no doubt that Mr. Armitage knew he had been in a collision. To his eternal shame, Mr. Armitage did not stop. He was followed by a witness who stopped him down the road. Mr. Armitage acknowledged knowing he had hit Mr. Lattanzio and said he was going to return to the collision scene, but instead he fled, despite having a clear legal and moral obligation to remain at the scene. He drove one-hundred-and-fifty kilometres home to Oshawa. That morning, afternoon and night and into the following day, he made no attempt to contact the police.
- The police, however, wasted no time in uncovering whatever evidence existed to identify the car that struck Mr. Lattanzio and the driver who fled. Less than twenty-six hours after the collision, the police were at Mr. Armitage’s house in Oshawa and found his damaged car in the driveway. Relevant evidence was seen on the car and on the driveway.
- The police spoke with Mr. Armitage’s cousin outside the house and were told that Mr. Armitage was inside the house talking to his lawyer. Arrangements were made for him to surrender himself to the police in Niagara Falls and he did that at 2:18 p.m. that day. He was held and released on bail the following day. The bail order required him to live with his surety and prohibited him from driving.
The Cardinal Principle of Sentencing
- The Criminal Code and the Supreme Court of Canada have characterized “proportionality” as the cardinal principle of sentencing, that is to say proportionality is the principle that stands above all others. The principle of proportionality requires that a sentence be customized to reflect the seriousness of the offence and the moral responsibility of the offender. I shall turn to those issues now.
The Seriousness of the Offence
Driving is the most dangerous and most highly regulated activity that most of us ever engage in. We lose sight of its omnipresent danger because it is so much part of our everyday existence. Most of us cannot imagine not being able to jump into a car and go hither or yon to attend to all of the needs and wants of our daily routine. Because we do it so often, we take it for granted and we forget how much is at risk, what a horrible cost even momentary inattention could bring for us and our families and for complete strangers and their families. If we thought about it more, about the number of times we spent a second too long changing radio stations or on countless other distractions or while driving while too tired, but nothing awful happened, we would realize how incredibly fortunate we all are.
Mr. Armitage has pleaded guilty to a specific offence, namely failing to remain at the scene of the collision that caused Mr. Lattanzio’s death. He has not pleaded guilty to being criminally responsible in relation to his actual collision with Mr. Lattanzio.
There are various civil or criminal consequences that might arise from a death on the roads. For example, a tragedy like this could arise instantaneously, perhaps from a driver sneezing uncontrollably at just the wrong time or from texting or from spending too much time changing channels or focusing on a restless infant in the back seat or from driving too fast or too recklessly or under the influence of drugs or alcohol. Depending on the precise details, those circumstances might demonstrate civil negligence on the driver’s part or they might reflect a driver’s criminal liability whether for dangerous driving, criminal negligence or impaired driving.
The cause of Mr. Lattanzio’s death is not disputed here, in the sense that he died because Mr. Armitage veered to the right and hit him. However, the precise offence Mr. Armitage has pleaded guilty to matters. He has not pleaded guilty to dangerous driving causing death, criminal negligence causing death or impaired driving causing death. He has pleaded guilty to the specific offence of failing to stop after being involved in the collision that caused Mr. Lattanzio’s death. On one level, i.e. for Mr. Lattanzio’s family and friends, perhaps none of this matters, because the impact of Mr. Lattanzio’s death on them is the same whether it was caused by pure and unavoidable accident, by civil negligence or by some criminal cause. On another level it matters tremendously, because I am not called on to sentence Mr. Armitage for having caused Mr. Lattanzio’s death, but rather for his decision to flee the scene. That is what he has pleaded guilty to and that is the plea that a very experienced Crown has accepted after reviewing the available evidence arising from what appears to have been a highly competent police investigation.
At the same time, that does not make Mr. Armitage’s offence trivial. Whether a person is at fault for a collision or not, he or she has an absolute obligation, cemented in the criminal law, to stop, to provide their particulars and to render assistance if necessary. Mr. Armitage not only failed to stop in the instant after the collision, instead when he was intercepted by a witness nearby and was asked if he was going back, he squandered that opportunity to remedy his offence, lied to the witness about his intentions and then drove one-hundred-and-fifty kilometres home, until the police showed up at his house the next morning. This was serious wrongdoing.
The requirement to stop serves a number of purposes. First, since motor vehicle collisions can cause significant personal injury and property damage, the requirement to stop ensures that the involved parties are identified so that any civil remedy can be pursued. More importantly, where there has been an injury, the requirement ensures the most timely emergency response possible. Mr. Armitage knew he had hit a cyclist; he cannot have been unaware of that, especially after having been stopped by the witness. In any given situation, there may or may not be many people present who can summon aid or offer help, or even just consolation, themselves, but in every situation there will be one other person there, namely the other person involved in the collision. In situations like this, seconds or minutes could be the difference between life and death. We do not know in this case whether or not Mr. Armitage stopping, helping Mr. Lattanzio and calling 911 would have made a difference, but that is not the point. He was required to remain at the scene. Full stop. Period. End of discussion. This is a moral and legal duty.
The requirement to stop and identify oneself also arises from this important consideration. A collision such as this could involve no civil fault, civil negligence or criminal liability, all with potentially serious consequences for the person doing the harm and the person harmed. In the highly regulated world of driving, a privilege and not a right, society is entitled to the fullest understanding of what happened and why. When a driver leaves the scene, he or she deprives the police on society’s behalf of the ability to have the most immediate and most reliable understanding of what happened, why it happened and who did it.
On a simple human level, leaving without knowing the nature of a victim’s injuries may leave that person suffering and perhaps dying without any human comfort and, again depending on the circumstances, leave the victim’s family with that image to haunt them in addition to the many other layers of anguish and loss they have to deal with.
There can, therefore, be no doubt that this was a very serious offence in light of the obvious certainty that Mr. Lattanzio would have suffered severe injury or worse given the nature of the collision and that Mr. Armitage ignored the intervention of the witness and nonetheless continued to flee the scene and remained under the radar until the police showed up at his house.
The seriousness of the offence has been commented upon by the courts for decades. More than forty years ago, Justice Martin, speaking for the Court of Appeal in R. v. Gummer, [1983] O.J. No. 181 observed:
In failing to stop as required, the respondent exhibited a grave failure to comport with the standards of humanity and decency.
In our view, the court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code.
At the same time, none of the statutory aggravating factors listed in s. 320.22 of the Criminal Code is present here. While flight in cases like this understandably raises concerns about the flight being an effort to conceal impairment, there is no evidence to that effect here and there is evidence of an underlying condition that might well have contributed to Mr. Armitage hitting Mr. Lattanzio. When the plea was entered, I was specifically told that the Crown and defence agreed that Mr. Armitage’s sleep condition caused him to fall asleep while driving, resulting in him hitting Mr. Lattanzio.
The Impact of the Offence
- Mr. Lattanzio was fifty-one years old. Unsurprisingly, the impact of his death was enormous and long-lasting. It is painful to hear and to read the victim impact statements, although not nearly so hard as it must have been to write them and to live the reality they recount. One of Mr. Lattanzio’s sisters describes her shock at the news, her anxiety whenever she passes a cyclist on the road, the sadness that accompanies the smell of flowers, of which there were so many sent by well-wishers, but especially she laments the impact of Mr. Lattanzio’s death on others, such as her son, Mr. Lattanzio’s autistic nephew who had a special connection with him, and her ninety-two-year-old mother, who lacks the words to explain her loss. Mr. Lattanzio’s other sister, who is now their mother’s primary caregiver, echoes their mother’s pain, as well as her own immediate, enduring and ongoing sense of loss, exacerbated by the fact that her drive to work requires her to pass where he was struck and her daily walks take her past her late brother’s home. Mr. Lattanzio’s brother also echoes their mother’s pain, but also his own sense of loss from having, “so much more I wanted to share with him.” He reflects on his own son’s sense of loss at losing his “go to” uncle.
- Mr. Lattanzio’s sister-in-law writes of the impact of Mr. Lattanzio’s death on herself, her spouse and their three young-adult children, for whom Mr. Lattanzio, “was more than an uncle and brother-in-law. Nino was a supportive big brother and caring best friend...He inspired laughter and joy…” She writes of how her sister, Mr. Lattanzio’s wife, was effectively incapacitated by his death and of how she had to step in to shield her sister from all of the pain and all of the minutiae arising from his death. Ultimately, Mr. Lattanzio’s sister-in-law had to give up her own job because of the health impact her brother-in-law’s death had on her.
- Mr. Lattanzio’s wife, Suzana, describes her growing sense of worry as her husband failed to return from his ride and didn’t pick up on her calls to confirm when he would be home to start their day together, of driving around his usual routes looking for him, of her concern as she saw a police cruiser pull into her driveway. In the aftermath of her husband’s death, she was unable to drive, unable to do anything more than the absolute minimum, unable to maintain her exercise regime and beset by nausea, headaches and stomach-aches, leading up to serious health complications. She had panic attacks when she saw a cyclist. She could not sleep. She worried about her husband’s last moments, about his being left alone on the road. She returned to work after five months and could only last two weeks. After two more months off she could not handle more than a three-day work week. Mr. Lattanzio’s death, her absence from work, the cost of medications and the cost of getting things done that her husband would have done before have created a real financial burden as well. Mostly, though, they were a couple and, “we spent most of our time always together doing things.” Even with a loving and supportive extended family, “my heart was ripped in half that day.” She has gone from being a, “positive outgoing person,” to struggling, “to find myself, any little joy, and peace again.”
Mr. Armitage’s Background and Moral Responsibility
Mr. Armitage is thirty-nine years old. He has one criminal conviction, for a property-damage impaired driving offence almost ten years ago. His Highway Traffic Act record is minor and dated, consisting of two speeding convictions ten and thirteen years ago.
Mr. Armitage wrote a letter of apology to Mr. Lattanzio’s family, expressing his sorrow for the pain he caused and his prayers for forgiveness, from God and hopefully eventually from them. He told the probation officer that he often gets angry at himself for what he did and wishes it had been him who had died that day. He said: “I did something wrong. I have to face what I did, and whatever happens, happens.” He understands that Mr. Lattanzio’s family must hate him and he does not blame them for that. He claims no logical reason for fleeing, just panic. His therapist perceives his remorse as genuine and his engagement in therapy as robust.
I have been provided with a particularly thorough pre-sentence report, as well as a series of letters and records from Mr. Armitage’s family, friends, partner, employer and medical providers. The overall flavour of all of the materials, encompassing all source-types of information is very favourable.
The medical information, which is proximate to the time of Mr. Armitage’s offence, shows that he was suffering from, and receiving treatment for, severe sleep apnea at the time of those reports. This likely explains how the collision happened, although it would not excuse Mr. Armitage’s flight.[^4] Mr. Armitage was on stress-leave from work at the time of his offence, due to anxiety and depression. His anxiety dates back to high school but was manageable for many years. It worsened after the death of one of his best friends, who drowned while trying to save her son. Mr. Armitage cannot identify an origin for this anxiety despite engaging in therapy recently. While he was on stress leave, he often found it hard even to leave the house and had panic attacks even when in a safe environment. He obtained medical help but suffered from various symptoms including constant fatigue. His driver’s licence was suspended indefinitely after his sleep specialist reported the collision to the Ministry of Transportation.
Mr. Armitage’s doctor confirmed, “a medical history of anxiety, depression and sleep apnea.” Mr. Armitage is on medication for the anxiety and depression, for stomach ulcers/chronic gastritis and for symptoms of asthma or COPD.
Mr. Armitage has no history of alcohol or drug dependency. He characterized his impaired driving offence as “stupid and out of character.” None of the many sources consulted by the probation officer identified alcohol or drugs as an issue.
From the materials filed, we learn the following about Mr. Armitage: a. His mother and father separated when he was four or five years old and his mother married again. There was no abuse in the family and no deprivation. He described his childhood as very good. He describes positive relationships with his family members. b. Mr. Armitage did not go far in school but has been consistently employed since the age of fourteen or fifteen, leaving the family home when he was seventeen because he was employed full-time. He has never been on social assistance. He has been employed with the same employer for the past eighteen years and has a very positive reference letter from his supervisor. c. His partner describes him in very favourable terms including her absolute confidence in trusting him with the care of her children. Mr. Armitage speaks highly of his partner and is appreciative of her support despite the stress and uncertainty of his legal situation. His partner describes him as “a hardworking, caring, and compassionate individual….[who] ensures that my children’s physical and mental well-being is always a top priority…I have witnessed his inability to function due to the depression and remorse he feels for what has occurred….including crying due to the guilt he feels for all those involved.” d. Mr. Armitage’s sister says that he, “has been an outstanding role model for me growing up, teaching me to walk, talk, drive, and a solid work ethic…He is a great leader and team player and gets along well easily with other people which is why he is so lovable….he feels horrible for what happened and there is no way to fix it.” e. Mr. Armitage’s mother says that her son has suffered from anxiety for many years, despite which he has maintained an independent and responsible life since his teens. He has always been someone she can depend on. His stepfather and father gave similar assessments, with his father saying, “I couldn’t have asked for a better son”. f. A work-colleague of Mr. Armitage’s for the past eighteen years describes Mr. Armitage as, “very kind, thoughtful and caring,” usually the first to reach out with a supportive call or gesture if someone was suffering. In the work context, he has, “a special ability to connect with the customers and make everyone happy and satisfied,” but that Mr. Armitage now presents as “broken” and “heartbroken over what has happened.” Whenever he has a choice of work partners, he chooses Mr. Armitage. He confirmed that Mr. Armitage has always had anxiety issues and that they have worsened since the offence. g. There are half a dozen other letters about Mr. Armitage’s history and character, from people who have known him for a decade or two, or his whole life in the case of some family members. They are all consistent in recounting Mr. Armitage’s good nature, reliability and selflessness.
Mr. Armitage has been on bail since the time of the offence, a period of about twenty-one months. The principal conditions of his bail are that he live with his surety, which he has interpreted as not allowing him to spend nights at his partner’s home, and that he not drive. During that time he has done one-hundred-and-eight hours of community service. Otherwise, he has largely focused on work and has socially kept to a close circle of friends. He has seen social-media postings about his offence that at times made him feel scared to go out of the house.
The following factors operate in Mr. Armitage’s favour: a. He has pleaded guilty. A guilty plea always has value, although the value of a plea can vary from case to case.[^5] In this case, it seems clear that the Crown’s case on the failure to remain was strong. However, even at that, the plea spares Mr. Lattanzio’s family the added stress of a trial (and potentially a preliminary hearing) and the added delay a trial or preliminary hearing would cause. It also saves a fair amount of court time, which is beneficial to society. b. I accept that Mr. Armitage is genuinely remorseful about his offence. It is not, of course, unusual for a defendant to proffer supportive letters from those in his circle, but the variety of sources for the letters and the consistency of their overall message supported by various individual characterizations and examples supports the conclusion that these are accurate reflections of Mr. Armitage’s character before and since the offence. None of the letters seeks to diminish the seriousness of the offence their son, partner, sibling, friend or employee committed, which adds to their credibility. c. Mr. Armitage has a long history of pro-social engagement and a powerful work ethic. There is no gainsaying this on the record before me. d. Mr. Armitage had health circumstances that provide a context within which he hit Mr. Lattanzio. In any fail to remain case, there is always the nagging question of whether the driver fled in order to ensure the police could not discover and prove, for example, that he was impaired by alcohol or drugs. In the present case, I accept the flight was driven by pure panic, albeit including presumably the intention in that moment and into the next day to avoid being caught. That is not an excuse by any means, but it is somewhat less serious than a person fleeing because their actual driving had been criminal in and of itself, for example impaired by drugs or alcohol, before they fled, or because they were engaged in some unrelated criminal activity at the time of the collision that would have come to light if they stuck around.
The following factors work to Mr. Armitage’s disadvantage: a. His previous record. It is obviously dated, but that does not make it irrelevant. It is an example of him failing to take his responsibilities as a driver seriously, a failing sufficient to cross the line between the regulatory and criminal sides of the line. b. The precise details of the offence. In this case, Mr. Armitage left the scene of the collision, which is inherent in the plea. But when he was chased down by the delivery driver, he was given the chance of further reflection, a test he failed. This is all in the context of a collision causing such severe damage to Mr. Armitage’s car that he absolutely must have known that the consequences of the collision for the other party would have been dire. He must have known that he was not fleeing from a fender-bender. c. Even if I give Mr. Armitage the benefit of the doubt that he was calling his lawyer before he saw the police in his driveway, that was still over twenty-four hours since his offence, a lot of time for him to calm down and reflect.
The fact that Mr. Armitage did not take steps other than flight to conceal his involvement, such as concealing the car in a remote location, making attempts to have the damage repaired, etc., which are features of some of the cases put before me, is not a mitigating fact, simply the absence of an aggravating fact.
As with all offences, fail to remain offences will involve differing levels of misconduct, described as follows in R. v. Porter, 2017 ONSC 6582:
50 There is a continuum in hit and run cases where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. At the other end of the scale are those cases where the accused acted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability.
The Determination of a Fit Sentence
I have reviewed the many sentencing cases presented by the Crown and the defence. It is always a helpful exercise to review how other courts have dealt with similar offences, although no two offences and no two offenders will ever be exactly the same. Indeed, the law requires that sentences for similar crimes be similar, subject, of course to any dissimilarities in the character or background or circumstances of the offender. As noted earlier, the two key emphases of sentencing are the seriousness of the crime and the moral responsibility of the offender. The cases cover a huge variety of facts and defendants, which is not surprising. For example, the Criminal Code sentence range for failure to remain in relation to a collision causing death runs from a one-thousand-dollar fine all the way up to life imprisonment, an enormous range of consequences,
The authorities presented to me do cover a huge range of offences and offenders, for example, including a youthful first offender and a defendant with a previous four-year sentence on his record. Many of the cases put before me were cases in which the offender was guilty of criminally bad driving and of the failure to remain, which is obviously a materially different situation than the present situation.[^6] As I have noted, however civilly negligent Mr. Armitage’s driving probably was on the facts before me, he has not been found guilty of any criminal offence in relation to the driving itself, but “only” (a word I use advisedly) of failure to remain. Obviously the more (or less) severe another offender’s crime or crimes is relative to Mr. Armitage and the more (or less) serious his previous criminal record, etc. is, the less helpful those previous sentencing decisions will be in the search for parity of sentence and for the appropriate range of sentence.
Here, the Crown and defence are not far apart in what they consider to be the appropriate length of sentence. The Crown asks for eighteen to twenty-four months in real jail, plus probation. Mr. Armitage asks for a conditional sentence without quantifying the length. The central issue therefore is whether or not Mr. Armitage’s sentence should be served in real jail or conditionally, under house arrest in the community.
The requirements for a conditional sentence are set out in the Criminal Code. For example, to qualify for a conditional sentence, an offender must receive a sentence under two years. The offence cannot be the object of a mandatory minimum sentence of imprisonment. The offence cannot be an excluded offence under the Criminal Code. Mr. Armitage’s case satisfies all of those criteria. Indeed, only a few months ago Parliament made conditional sentences much more widely available by almost entirely doing away with the list of excluded offences, meaning far more offences are now eligible for a conditional sentence.
As in the vast majority of disputed conditional sentence cases, the disagreement here comes down to the fourth requirement set out in the Criminal Code, namely that serving the sentence in the community would, (a) not endanger public safety, and (b) would be consistent with the purposes and principles of sentencing set out in the Code, including denunciation, deterrence, rehabilitation, reparations, etc. and the Code’s prioritization of some of those objectives for particular offences, as well as a long list of sentencing principles in s. 718.2.
Mr. Sokolski says that this offence, including the need for a focus on denunciation and deterrence, makes a conditional sentence inappropriate. General deterrence, that is, sending a message to the broader community that this type of offence will be treated harshly, must be the central driver of the sentence imposed on Mr. Armitage, despite the positive things that can be said of him.
Mr. Clewley, by contrast, calls on me to look at the specific language of the key conditional sentence cases from the Supreme Court of Canada, such as R. v. Proulx, 2000 SCC 5 to see why a conditional sentence is fit here. The creation of conditional sentences, he suggests was a reflection of incarceration rates being too high and the availability and actual imposition of conditional sentences must have had in mind offenders like Mr. Armitage who had led a mostly blameless life and who he said generally honours his social obligations. Mr. Clewley does not challenge the cases cited by the Crown, which impose real jail sentences, on their own facts, but points out that the vast majority of the Crown’s cases are cases where the offender pleaded guilty or was found guilty of another driving offence in addition to the fail to remain, such as criminal negligence or impaired driving, or defendants who not only fled but took active steps to conceal their offence beyond that. Those other offenders, Mr. Clewley says are categorically different from a fully insured driver who fell asleep at the wheel. Mr. Armitage, he says, has made his intention to plead guilty clear from the outset. He does not care how long the driving suspension is because he does not want to drive again.
Mr. Clewley also points out that there have been cases where conditional sentences have been granted in failure to remain causing death cases. That includes cases where the offender’s behaviour and/or background have been worse than Mr. Armitage’s. Indeed, the Proulx decision itself was a decision in which the defendant had pleaded guilty to dangerous driving causing death and bodily harm, that is to say his offence involved a finding that his criminal conduct was the actual cause of the death and injury, which is not the present case. In that case, the Supreme Court found that a conditional sentence was appropriate. That, of course, is not to say that a conditional sentence will be appropriate for all dangerous driving cause death cases or even for all fail to remain cases, it simply demonstrates what the Supreme Court said in Proulx, namely that, so long as the sentence is under two years there are no categories of offences that are excluded for consideration for a conditional sentence, unless it is a specifically excluded offence under the Criminal Code.
Ultimately, Mr. Clewley says that if one goes back to basic principles relating to conditional sentences and applies those principles as set out in Proulx, there is a path to a conditional sentence for Mr. Armitage and it would be the sentence option that most fits all of the dictates of the Criminal Code in relation to sentencing.
Going back to basic principles, it is worth considering what is actually involved in a real jail sentence and in a conditional sentence. First, with respect to a real jail sentence, the defendant will almost never serve the entire sentence. Depending on whether he is serving time in a provincial or federal institution, he will actually serve a fraction of the time imposed by a judge, ranging from one-sixth of the sentence up to two-thirds. If he serves his sentence in a provincial jail, he would typically serve two thirds and that would for most prisoners be time spent in dormitory accommodation with limited programme options. Prisons are their own ecosystem, on a practical level often run more by the inmates than by the authorities. Violence is not uncommon. There is no guarantee that a basically pro-social person who goes into jail as an inmate will come out a better person, or as a person less likely to reoffend. He may, through negative associations while in custody, actually come out as more of a threat to society. He may also come out as more of a threat to society because his pro-social linkages such as family, relationships and employment have been ruptured. These are not absolute reasons not to impose a real jail sentence, but they are things to think about when the purpose of a criminal sentence is to make society safe. There will obviously be cases where the offence is so serious, or the offender is so recalcitrant, that a sentence of real jail aimed at separating the offender from society will be the only option.
When a person serves a conditional sentence of imprisonment, or “house arrest” he serves every single day. He is likely to be subject to electronic monitoring, by means of an ankle bracelet, which helps ensure his compliance with the terms of his house arrest. It is my practice to impose electronic monitoring for almost every conditional sentence, with the exception of extremely short conditional sentences or some very specific health reason; I believe I could count on the fingers of one hand the number of times in the past fourteen years that I have not imposed electronic monitoring on a conditional sentence.
A prisoner on a conditional sentence is required to stay at home with specific exceptions such as work, school, counselling, community service hours, reporting to probation and the like. He is typically afforded a short window (perhaps four or five hours a week) to take care of personal responsibilities. There may be other exceptions from house arrest on a case-by-case basis, but they will be kept to a minimum. A sentence served in this fashion ensures a prisoner does not make negative associations as he would in jail and allows him to continue on his rehabilitative path, including maintaining employment. That sort of stability significantly reduces the likelihood that the offender will be a danger to society upon completion of his sentence.
A prisoner on a conditional sentence understands that his behaviour is being monitored. He knows that if there is an allegation that he has breached any of the terms he will be brought back to court and if the Crown can prove he has breached the order on a balance of probabilities (a much lower standard of proof than proof beyond a reasonable doubt), he faces being ordered to serve either some or all of the balance of his sentence in real jail. For most defendants this guillotine hanging over their necks is a powerful motivator.
Going back to what the Supreme Court said in Proulx, I quote the following, at paragraphs 113-116:
In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances in the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation, the availability of appropriate community service treatment programs, whether the offender has acknowledged his or her wrongdoing and expresses remorse, as well as the victim's wishes as revealed by the victim impact statement. This list is not exhaustive.
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.
Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, 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.
Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating features are present. I repeat that each case must be considered individually. Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. (emphasis added)
Conclusion
- I have come to two conclusions in light of my review of the facts, the submissions and all of the cases presented to me. The first is that in light of all of the circumstances, a conditional sentence would be responsive to all of the requirements of sentencing set out in the Criminal Code. While there would undoubtedly be more aggravated circumstances or different offenders for whom a sentence of real jail would be appropriate for failure to remain causing death, Mr. Armitage’s conduct and his background do not call for that outcome. The second is that the length of the conditional sentences imposed in the sentencing authorities presented to me by Mr. Clewley, both those that are recent and those that are more dated seem very low, frankly often so low as, in my opinion, to diminish the objective seriousness of the offence and its impact on the victims’ families and the community.
- In relation to the suitability of a conditional sentence, I am satisfied that granting Mr. Armitage a conditional sentence would not endanger the safety of the community. Given Mr. Armitage’s age, his one previous criminal conviction, his limited driving history and the facts of the present case, I consider the offence to be mostly out of character for him and I think that the likelihood of him reoffending is low and that the extent of danger posed by him in the event of him reoffending is also low.
- There are multiple sentencing objectives competing for primacy here. I shall deal first with the need to denounce his flight as being entirely contrary to the expectations of society and of basic decency. The community expects more of those who are given the privilege of driving and who are involved in a collision. There is also a need to deter drivers generally from considering flight to be an option in such circumstances. This is a case in which, in my view, Mr. Armitage making reparations to his society for his offence would be a beneficial component. Finally, a sentence that maximizes the rehabilitation of Mr. Armitage is in everyone’s long-term interest because it will ensure he remains a productive member of society, continuing on a pro-social path and thus reducing the likelihood of him being a future threat.
- I am satisfied that the need here for a balance of punitive and rehabilitative objectives of sentencing makes a conditional sentence with full electronic monitoring the most suitable option. This is a case in which Mr. Armitage made a very foolish, selfish choice, twice within a minute or so, by failing to remain at or immediately return to the scene of his collision with Mr. Lattanzio. I suspect that Mr. Lattanzio’s family will never be at peace with that choice by Mr. Armitage and it is not my place to expect that of them. Ultimately, this is one of those especially challenging cases where a basically good person has made an awful, serious and criminal decision.
- I do not think that imposing a sentence of real jail on Mr. Armitage would, in all of the circumstances, better achieve the balance of sentencing objectives here. Indeed, to the contrary, I think it would ultimately be counterproductive. A conditional sentence can be constructed, by its duration and/or its terms, to have significant denunciatory and deterrent force, along with rehabilitation and deterrence. I believe that in these circumstances a sentence of real jail would violate the requirement of restraint in the use of real jail.
- I should say, however, that if the circumstances of the case were more aggravating, for example if there were evidence that Mr. Armitage had taken positive steps beyond his flight to conceal his guilt, any path to a conditional sentence would be far less clear. Also, it does appear most likely that the collision was caused by sleep problems rather than by impairment by drugs or alcohol or by dangerous driving or criminal negligence on Mr. Armitage’s part. If there were a basis to conclude beyond a reasonable doubt that Mr. Armitage’s flight was motivated by a desire to conceal that aggravated level of culpability, I doubt that a conditional sentence would be appropriate.
- I shall, therefore, be sentencing Mr. Armitage to a conditional sentence of imprisonment with full electronic monitoring, to be followed by a period of probation.
- In his submissions as noted by me, Mr. Clewley never suggested a specific sentence, other than to say it should be a conditional sentence, which necessarily caps the sentence at two years less a day. He referred to a number of cases in which conditional sentences were granted, both in this province and in British Columbia. As I have said, while I agree that a conditional sentence may be an appropriate outcome for the right offender in a non-aggravated failure to remain causing death, it does seem to me that the actual sentences imposed in most of those cases were unduly light for the inherent seriousness of the crime. I did get the impression that when Mr. Clewley referred to the R. v. Forestall, 2021 ONCJ 121 decision he was not trying to persuade me to adopt the length of sentence, but only the format of the sentence. Forestall was a case in which the defendant concocted and stuck for a while with a false narrative about how her car got damaged.
- Keeping in mind that Mr. Armitage is being sentenced, not for being criminally responsible for Mr. Lattanzio’s death, but for the nonetheless serious criminal offence of having failed to remain at the scene of a collision resulting in Mr. Lattanzio’s death, I have concluded that in light of all of the circumstances, including the details of the offence such as the failure to stop, the failure to return when accosted by a witness, the twenty-four-hour duration of his absenting himself, the unquestionable impact of his conduct on the family and broader community, Mr. Armitage’s previous criminal and driving record, his guilty plea and his background and generally pro-social history, this is a case in which the maximum permissible conditional sentence of two-years-less-a-day would respond to all of the demands of sentencing, followed by probation for eighteen months.
- The conditional sentence shall include house arrest for the entire period of the order, starting immediately after Mr. Armitage’s first meeting with his supervisor, in keeping with the terms of the Recovery Science electronic monitoring protocol. I shall discuss reasonable exceptions to the house arrest with counsel. Mr. Armitage will have no contact directly or indirectly with any member of Mr. Lattanzio’s family including his wife, his mother, his siblings, his in-laws or his nephews and nieces, and he shall not come within one hundred metres of any place where they live work, attend school or are known by him to be, (both except for attendance at any civil proceedings arising from Mr. Lattanzio’s death). He shall attend for such assessment, counselling and rehabilitative programmes as are directed by his supervisor and shall sign releases and provide proof of compliance. He shall perform 240 hours of community service during the first eighteen months of the conditional sentence, which is the maximum allowable under the Criminal Code. He shall make reasonable efforts to maintain suitable employment or attend school or upgrading. He shall not occupy the driver’s position of any motor vehicle.
- After the completion of the conditional sentence, Mr. Armitage will be on probation for eighteen months, including reporting to probation, the no contact/radius condition, the assessment and counselling and related conditions and an additional 240 hours of community service. He shall also not occupy the driver’s position of any motor vehicle. His obligation to report on the probation order will end when he has completed both the community service and any counselling to the satisfaction of his probation officer.
- There will be a five year driving prohibition.
- Mr. Armitage will provide a DNA sample on this secondary designated offence. He is a mature offender with only two convictions, but the obvious seriousness of this offence standing alone would give priority to the public interest in the DNA data bank over Mr. Armitage’s privacy interests in line with the cases from the Court of Appeal
- Mr. Armitage will pay the $200 victim surcharge within three months.
Released: 21 April, 2023 Justice Fergus ODonnell
Footnotes
[^1]: G. K. Chesterton, Tremendous Trifles, c. XI, “The Twelve Men”: The Project Gutenberg eBook of Tremendous Trifles, by G. K. Chesterton [^2]: According to one source (Highest to Lowest - Prison Population Rate | World Prison Brief (prisonstudies.org)), the three countries with the highest incarceration rates are El Salvador, Rwanda and Turkmenistan. The precise rankings vary depending on the source and methodology (for example whether or not one includes persons detained outside the strict confines of criminal law, such as immigration detainees), but seem generally consistent. [^3]: Canada, Iceland, the United Kingdom, the United States and much of western Europe. See: States of Incarceration: The Global Context 2021 | Prison Policy Initiative [^4]: In reply submissions the Crown said that Mr. Armitage falling asleep and thus causing the collision was not in the agreed statement of facts, which is true, although the Crown accepted he did suffer from a sleep issue. However, immediately after the agreed statement of facts was read in, Mr. Clewley specifically said that Mr. Armitage had fallen asleep, an assertion that was never challenged. Ultimately, I do not think it makes any difference on the total record before me. Mr. Sokolski’s other comment, i.e. that one of the evils inherent in a driver failing to stop is that the precise circumstances may never be known is, of course, a perfectly valid one. [^5]: There are conflicting authorities on this point from the Court of Appeal, one that says that a plea has variable value depending on the circumstances, another that suggests that a plea is a plea is a plea. Only the first of those two authorities is credible: a plea from a person who foregoes viable defences or Charter arguments, for example, must necessarily have greater value than a plea from someone who is inescapably caught. That being said, it is still possible for a person who faces a very strong Crown case to plead because of genuine remorse. [^6]: For example, some of the cases referred to are cases where the defendant pleaded guilty to criminal negligence, to driving while impaired, etc., sometimes causing bodily harm or death to more than one person, in addition to the failure to remain. Some of the cases involved defendants who had been found guilty after trial, which typically results in longer sentences than if a person had pleaded guilty to exactly the same offence.