Ontario Court of Justice

Date: 2023 06 06 Court File No.: 201453

Between:

HIS MAJESTY THE KING Crown

— AND —

JOHN BERTRIM Defendant

Reasons for Sentencing

Before: Justice of the Peace L. Bourgon

Sentencing Submissions heard on: May 19, 2023 Reasons for Sentencing released on: June 6, 2023

Counsel: G. Black, for the Crown S. Yeghoyan, for the Defendant

JUSTICE OF THE PEACE L. BOURGON:

Introduction

[1] On January 30, 2023, this court found John Bertrim (the Defendant) guilty of careless driving causing the death of cyclist Ewan Burke contrary to s.130(3) of the Highway Traffic Act (HTA). Mr. Burke was married, recently retired, and the father of two children.

[2] On May 19, 2023, I received submissions on sentencing including victim impact statements delivered by 6 members of Ewan Burke’s family. Mr. Bertrim also addressed the court during the sentencing submissions.

[3] For the reasons that follow, I am sentencing John Bertrim to fourteen (14) days of intermittent custody, a fine of $5,000.00, and a 2-year probation order with the statutory conditions and a period of driving prohibition with certain exceptions. I will invite submissions on possible community service at the conclusion of my reasons as the consent of the Defendant is required for such a condition.

The Law

[4] Section 130(4) of the Highway Traffic Act sets out the penalty for the offence of careless driving causing bodily harm or death:

Penalty

130 (4) On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years.

[5] In addition, section 130(6) of the Act provides for a statutorily aggravating factor on sentencing when the offence of careless driving causing death involves a pedestrian, cyclist or person working on a highway.

Sentencing — aggravating factor

130 (6) A court that imposes a sentence for an offence under subsection (3) shall consider as an aggravating factor evidence that bodily harm or death was caused to a person who, in the circumstances of the offence, was vulnerable to a lack of due care and attention or reasonable consideration by a driver, including by virtue of the fact that the person was a pedestrian, cyclist or person working upon the highway.

Positions on Sentencing

Prosecutor

[6] The prosecutor is seeking a 4-month custodial sentence, a 3-year driving prohibition and a 12-month period of probation. In addition to the statutory probation terms, the prosecutor submits that there be a reporting period of probation wherein Mr. Bertrim must complete 80 hours of community service. A non-communication condition and a 50-meter radius condition to remain away from named family members of the deceased are also recommended by the prosecutor.

Defence

[7] The defence submits that a custodial sentence should not be imposed based on a number of mitigating factors as well as Mr. Bertrim’s personal circumstances. The defence submits that an appropriate sentence would be a fine in the range of $3,000 to $4,000 in addition to a driving prohibition. The defence submits that if the court imposes a driving prohibition there should be an exception for operating farming equipment only on the immediate premises of Mr. Bertrim’s farm property.

Background and Personal Circumstances of the Offender

[8] Mr. Bertrim is 77 years of age. He and his wife operate a farm. They have no children. When Mr. Bertrim was a teenager his father fell ill leaving Mr. Bertrim to take over the operation of the farm.

[9] Mr. Bertrim comes before the court with no criminal record and a marginal and dated driving record. Over his 60-year driving history, he has accumulated a total of 3 driving convictions:

• 1984: Speeding 95 km/hour in an 80 km/hour zone
• 1986: Speeding 103 km/hour in a 60 km/hour zone
• 2001: Speeding 90 km/hour in an 80 km/hour zone

[10] During submissions the court heard that Mr. Bertrim has recently faced health challenges due to the stress of the accident. On June 4, 2023, defence counsel forwarded a letter dated June 1, 2023, from Mr. Bertrim’s family physician, Dr. Harvey Williams. The prosecutor was copied on this communication. Dr. Williams indicates that Mr. Bertrim has significant medical problems. He has observed the toll that the legal process has taken on Mr. Bertrim both mentally and physically. The prosecutor did not oppose the request to have Dr. Williams’ letter made an exhibit on sentencing. However, the prosecutor raised concerns about the inability to question Dr. Williams, the lack of detail as to the nature of Mr. Bertrim’s medical issues and the basis for the opinion. The court noted the prosecutor’s concerns.

[11] Finally, it must be noted that Mr. Bertrim expressed his remorse to Mr. Burke’s family at the conclusion of the sentencing hearing.

Submissions on Sentencing

Prosecution

[12] The prosecutor submits that the recent amendments to the Highway Traffic Act which created a specific offence of careless driving causing bodily harm or death along with the higher penalties reflect a clear message from the Legislature and the community’s views that the previous sentencing penalties were inadequate. The previously available maximum penalties were a $2,000 fine, 6 months jail plus a 2-year license suspension. Under the amended sentencing matrix, the previous maximum fine is now the minimum fine. The maximum period of incarceration has been increased from 6 months to 2 years. Finally, the maximum period of driving suspension has increased from 2 years to 5 years.

[13] Having regard to the aggravating and mitigating factors of this case, the prosecutor submits that a 4-month custodial sentence along with a license suspension and probation order strike a balance and achieve the sentencing objectives of general and specific deterrence as well as denunciation. In arriving at its sentencing position, the prosecutor took into consideration both the aggravating and mitigating factors of this case.

[14] With respect to aggravating factors, the prosecutor emphasized the reasonable foreseeability of the tragic consequences of driving through the main intersection of a small village without due care and attention. The Defendant’s line of sight from his stopped position at the intersection to the location where the accident occurred was unobstructed. The evidentiary record reveals that the Defendant was unaware of his surroundings while stopped at the intersection. The court is also required to consider the statutorily aggravating factor that Mr. Burke was vulnerable by virtue of being a cyclist.

[15] In terms of mitigating factors, the Defendant does not have a criminal record. His driving record is marginal and quite dated. He also presented a number of character reference letters that described the Defendant as an honest and responsible person and a good neighbour who has contributed to his community as a local farmer.

[16] While not an aggravating factor, the prosecutor submits that the absence of a guilty plea in this case reflects the Defendant’s lack of acceptance of responsibility which would be a mitigating factor. The prosecutor submitted a number of cases in support of its position on sentencing. The majority of these cases featured a plea of guilt.

Defence

[17] The Defence disagrees that a custodial sentence is appropriate in the circumstances. Counsel for the Defendant submits that the court must look to the Defendant’s age, the absence of a criminal record and to the very limited and dated driving record. Immediately after the accident, the Defendant got out of his vehicle, called 911, waited and gave a statement to police. He never denied that he was the driver or that he was involved in the accident or what transpired.

[18] Mr. Bertrim was not deliberately driving carelessly. Rather, it was a moment of inattention that resulted in tragic consequences.

[19] Counsel for the Defendant says the period of custody sought by the prosecutor appears to be the harshest and lengthiest custodial sentence for this type of offence given the facts of this case. Moreover, the Defendant should not be punished for having exercised his trial rights.

Analysis

[20] I would like to begin by indicating that no sentence that this court imposes can erase the profound loss felt by Mr. Burke’s family.

[21] The prosecutor and defence counsel submitted a number of careless driving decisions involving fatalities or bodily harm to assist this court with sentencing.

[22] I have carefully considered counsel submissions on penalty and the authorities provided.

[23] In crafting a sentence, I must consider the objectives of sentencing that apply to regulatory offences including general and specific deterrence as well as the protection of the public. Additionally, I must consider the principles of sentencing including proportionality and parity.

Goals of Sentencing

Deterrence

[24] The paramount sentencing goal under public welfare statutes, such as the Highway Traffic Act, is deterrence (R. v. Cotton Felts Ltd., 1982 ONCA 3695).

Specific Deterrence

[25] Specific deterrence involves deterring the offender before the court from repeating the prohibited conduct. As the prosecutor correctly pointed out, given the Defendant’s age and the absence of any criminal record or any significant driving record, specific deterrence does not figure prominently as a sentencing goal in Mr. Bertrim’s case.

General Deterrence

[26] General deterrence, on the other hand, involves deterring community members from committing the offence. Given the potentially devastating and tragic consequences of careless driving and the need to protect the public, the sentence imposed today must, among other things, serve as a message to members of the community at large. If you drive in a careless manner without due care and attention and you harm or take someone’s life, you will be met with serious consequences.

[27] Effective September 1, 2018, the Highway Traffic Act introduced the specific offence of careless driving causing bodily harm or death. Attached to this new offence provision is a greater range of penalties. In enacting these amendments, the Legislature and the people of Ontario have sent a clear message. The previous sentencing provisions were inadequate to address the most serious outcomes of careless driving. Careless and inattentive driving are a major problem on our roads.

Mitigating and Aggravating Factors

Mitigating Factors

[28] It is mitigating that the Defendant has no criminal record and only a very dated and marginal driving record.

[29] The Defendant has been, by all accounts, a good member of his community and makes an important societal contribution by operating a farm which we all depend on for nutrition.

[30] The court notes that the Defendant expressed his remorse to the family of the victim.

[31] Although this was a clear case of careless driving, it was certainly not the worst possible example. There is no evidence of a prolonged period of poor driving prior to the accident or any negative post collision behaviour.

Aggravating Factors

[32] There are a number of aggravating factors to consider. On the date of the accident conditions were clear with no driving hazards. In fact, the Defendant had no obstructions or other vehicles infringing on his site line between his stopped position at the intersection and the point of impact with Mr. Burke. There was a minimum of 20 meters between the Defendant’s stopped position to the opposite side of the road where the accident took place. In that distance, the Defendant effectively saw nothing until it was too late. The Defendant was unaware of his surroundings. He could not remember seeing Mr. Burke on his bicycle before the accident nor could he recall that another motorist, Mr. Bell, had arrived at the westbound intersection at around the same time. It is the factual finding of this court that Mr. Burke had travelled 6 seconds into the intersection prior to being hit by the Defendant.

[33] The accident was entirely avoidable. It was reasonably foreseeable that when driving through the main intersection of a small village next to a park and a community centre there would be pedestrians and cyclists. It is also reasonably foreseeable that if you drive in this area without watching what is coming in front of your vehicle an accident can occur.

[34] The court must also consider the statutorily aggravating factor that the collision involved a cyclist.

Other Factors

[35] I agree with Defence counsel that the Defendant must not be treated more harshly on sentencing by virtue of having exercised his trial rights. However, courts will routinely treat a guilty plea as an acceptance of responsibility and thus a mitigating factor. We do not have a guilty plea in the circumstances. I also note that much of the sentencing authorities provided by the prosecutor featured a plea of guilt.

Cases Referred To

[36] With respect to the careless driving jurisprudence provided by the parties, I note that in some cases courts have imposed custodial sentences while in other cases they have not. The case law on careless driving and sentencing which pre-dates the legislative changes to the Highway Traffic Act should, in this court’s view, be approached with some caution.

[37] In R. v. Martinez, 1996 ONCA 663, the driver drove through a stop sign at a relatively slow speed colliding with a van in the intersection. The driving conditions were nearly perfect with an unobstructed view. The defendant had no criminal or driving record. He had a good work record and was described as a model citizen. The trial judge sentenced the defendant to 90 days jail and 1 year probation. On appeal, the Court of Appeal held that the trial judge had given insufficient weight to the mitigating factors and determined that a fit custodial sentence was the 20 days of time already served.

[38] Defence counsel referred me to the Alberta Provincial Court decision in R. v. Josan, 2007 ABPC 300; a case involving careless driving under the Traffic Safety Act of Alberta. In that case the defendant pled guilty to careless driving. On the facts, the defendant was driving a transport truck on the right-hand southbound lane of the highway. The deceased had parked his truck on the shoulder of the southbound lanes. The accused drove over the fog line and hit the victim’s trailer causing the load to fall on the deceased. The court noted that there was no prior bad driving behaviour and no blameworthy post collision behaviour. The accused had not driven deliberately in a manner he knew to be careless. Rather he stopped paying attention for a moment. The court noted the absence of a driving record, an early guilty plea, and the fact that the driving offence was not blatant or deliberate. The Court determined that a non-custodial sentence was appropriate and suspended Mr. Josan’s driving privileges for 60 days and imposed a $2,000.00 fine.

[39] I was also referred to a recent sentencing decision of this court in R. v. Ingram, 2023 ONCJ 141. This case was decided under the current HTA careless driving provisions. Mr. Ingram pled guilty, and an agreed statement of facts was filed. The circumstances of the accident were considerably more aggravating than the matter before me today. Mr. Ingram was a suspended driver at the time of the accident. He made a conscious decision to pass another vehicle at a high rate of speed over a double solid yellow line. Two oncoming vehicles had to swerve onto the gravel shoulder to avoid a collision. Mr. Ingram struck a third vehicle head-on killing the driver at the scene. The court sentenced the defendant to 75 days intermittent custody, 2 years probation and a 5-year license suspension.

[40] In terms of proportionality, the sentence imposed by this court must be commensurate with the seriousness of the offence. Moreover, the principle of sentencing parity requires that similar penalties be imposed on similar offenders for similar offences in similar circumstances. I agree with defence counsel that the facts of Mr. Bertrim’s case do not approach those of the Ingram decision. I conclude that a custodial sentence of 4 months as recommended by the prosecutor would be unduly harsh.

Conclusion

[41] I conclude that a 14-day intermittent jail sentence along with a fine and a probation order, given all of the circumstances of this case, addresses the relevant sentencing objectives and principles. With respect to the custodial sentence, the period of custody I am imposing reflects my consideration of the mitigating factors of this case. I note that in the Martinez decision from over 25 years ago in the context of less severe penalty maximums, the Court of Appeal concluded that a 20-day custodial period was appropriate. Mr. Martinez, had no driving record, was said to be a model citizen, and had pled guilty to the offence. Notably, the fatality in Martinez did not involve a pedestrian or cyclist.

[42] The sentence imposed today shall serve as a clear message to the community that careless driving on our roads which results in bodily harm or death will be met with serious consequences. The sentence also takes into account the aggravating factor that Mr. Burke was a cyclist and thus vulnerable to motor vehicles.

Sentence

[43] Mr. Bertrim will be taken into custody today to be processed and released.

[44] Mr. Bertrim will report to probation within 48-hours of his release.

[45] He will then attend the Central East Correctional Centre, City of Kawartha Lakes, in an alcohol and drug-free state, starting on Friday June 16, 2023, at 8 p.m., to be released on Sunday June 18, 2023, at 6 p.m. and thereafter every Friday from 8 p.m. to Sunday at 6 p.m. until the completion of his sentence.

[46] Mr. Bertrim will pay a fine of $5,000 with 2 years to pay said fine.

[47] Mr. Bertrim will be placed on a reporting probation for a period of 24 months with the standard statutory conditions provided in section 72(2) of the Provincial Offences Act: Namely: a) The Defendant shall not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; b) The Defendant shall appear before the court as and when required; and c) The Defendant shall notify the court of any change in his address.

In addition, Mr. Bertrim will be subject to the following condition and exceptions as part of his probation: d) The Defendant shall report to his probation officer as directed. e) In the first year of his probation, the Defendant shall not operate a motor vehicle on any public roads, highways, or parking lots. For clarity, the Defendant may operate farming equipment on his farm properties located at: i) Haydon Hill Farm 2428 Concession Road 8, Rural Route 1, Bowmanville, Ontario. ii) 6041 Middle Road, Concession 6, Bowmanville, Ontario. iii) 2520 Concession Road 6, Bowmanville, Ontario. iv) 2445 Concession Road 8, Bowmanville, Ontario. v) 2419 Concession Road 9, Bowmanville, Ontario. vi) 61 Maple Street, Bowmanville, Ontario. f) The Defendant may operate a motor vehicle for the limited purpose of medical emergencies involving him or a member of his immediate family. g) In the second year of his probation, the Defendant shall be permitted to drive. He will complete 60 hours of community service at the direction of his probation officer and shall not be required to report after the 60 hours of community service is complete.

Released: June 6, 2023 Signed: Justice of the Peace L. Bourgon