St. Catharines DATE: 2023.07.13 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARGARET PARK-ROMAIN
Before: Justice Fergus ODonnell Reasons for sentence delivered on 13 July, 2023
Counsel: Mr. M. Sokolski and Ashley Galea....................................................................... for the Crown Mr. J. Manishen...................................................... for the defendant, Margaret Park-Romain
Fergus ODonnell J.:
Overview
[1] When I was thinking about what to say today, countless thoughts crossed my mind, many of which you will hear this morning. Two of the most important thoughts, however, came from such different places and such different contexts that I was struck by how closely connected they really were and also by how central they are to the tragedy that brings us here.
[2] The first in time is about four hundred years old, a poem by John Donne, who was also the Dean of St. Paul’s Cathedral in London. He wrote that, “No man is an island entire of itself: every man is a piece of the continent, a part of the main…any man’s death diminishes me, because I am involved in mankind”. In less poetic language: “we are all in this together.”
[3] The second is a memory from my childhood, growing up in a city dominated by petrochemical plants. One of the companies conducted a huge publicity campaign, focused both inward on its own operations and employees, where even momentary carelessness could lead to catastrophic outcomes, and outward towards the community, where the same was, and remains, true. Like my short-hand version of John Donne’s observation, the safety campaign materials consisted of only six words: “Life Is Fragile-Handle With Care”.
[4] If we combine those two thoughts together, we come up with an incredibly simple but often forgotten rule to live by: we must all behave in a way that avoids harm to those around us. It is a grievous breach of that principle that brings us here today.
[5] I start with this because a judge’s reasons speak to various “audiences”. Most important, they speak to an offender and the victims of that offender’s crime, to explain why the judge reached the conclusion reached. A judge’s reasons can also speak to the broader community in the hope, perhaps optimistic, that some good, some awareness, some avoidance of future tragedy might come from the offence.
The Facts
[6] Friday, the third day of September, 2021 was the start of the Labour Day weekend. It is the day that Nancy Kennedy’s life imploded, a day when almost everything she knew and looked forward to changed utterly. It is the day she was irreparably broken.
[7] That is because 3 September, 2021 is the day that Margaret Park-Romain killed Mark Stewart. While Ms. Kennedy’s loss is the greatest, Mr. Stewart’s death also hurt many, many other people—family, extended family, friends, neighbours, colleagues. To be honest, the victim impact statements filed convey the clear impression that, no matter how one came to meet Mr. Stewart, one was very likely to end up seeing him as a friend.
[8] Ms. Park-Romain did not kill Mr. Stewart with a knife or a gun or anything that dramatic; she killed him with something far more prosaic, her car, a “weapon” of a type that almost all of us rely on almost every day. However, the people who loved Mr. Stewart understandably do not care about how he was killed. They care that he was killed by a criminal act by someone who ignored the fragility of human life. As John Donne wrote, their lives--many lives--are diminished by Mr. Stewart’s death.
[9] Ms. Park-Romain has pleaded guilty to a charge of dangerous driving causing death. [1]
[10] I shall note here that in these reasons I tend to refer to Mr. Stewart being killed as opposed to him having died. I do that consciously because words matter and sometimes we use words that understate what happened in order to lessen the blow or to cushion our grief or for a variety of other reasons. However, those same cushioning words can be used, consciously or subconsciously, to dilute a person’s responsibility. In this case it is obvious that Mr. Stewart died, but we would not be here if he had died, for example, in his sleep; we are here because he was killed by a criminal act. If there had been no collision and Mr. Stewart had simply died in his sleep that night, many of the impacts felt by Ms. Kennedy and his circle of family and friends would have been very similar, but that is not how it happened. And quite apart from how Mr. Stewart died, he died far too soon.
[11] I also try to steer clear of the word “accident” for similar reasons, preferring in this context the word “collision”. While an “accident” would strictly speaking encompass any unintentional calamity, the word can also be used to dilute personal responsibility, i.e. by an implication that what happened was unavoidable. However, human experience demonstrates that, at least in the world of motor vehicle collisions, drivers (and to a lesser extent cyclists and pedestrians) paying closer attention to an inherently demanding and dangerous task would reduce the number of injuries and fatalities from “accidents” dramatically. In the present case, there is no suggestion that Ms. Park-Romain intended to hit Mr. Stewart’s truck so some might call that an accident, but by far the more apt word is crime.
[12] Ms. Park-Romain was driving her Toyota Solara on Spring Creek Road towards Victoria Avenue in the Town of Lincoln that afternoon, just before 4 p.m. Serendipitously there was a truck behind her, equipped with a dash-cam that recorded her driving and, from a distance, the collision that killed Mr. Stewart. The road is straight, dry and well-marked, the weather is bright and there are no obstructions.
[13] Over the roughly two minutes of video that was presented in court, Ms. Park-Romain’s driving was egregiously and consistently bad. She spent a lot of her time either straddling or significantly over the centre line, correcting and then crossing onto the right-hand gravel verge and even onto the right-hand grass and then overcorrecting back over the centre line. This was not a momentary oversight; it was a prolonged period of bad driving that should have made it inescapably clear to Ms. Park-Romain that she was unfit to drive at that time and that as long as she kept driving, she was a danger to herself and others. At one point, the driver of an oncoming SUV had to hug very close to the SUV’s right shoulder, creating as large a gap as he or she could between the SUV and Ms. Park-Romain’s car. At another point, Mr. Park-Romain was across the centre line when the road was on the rise. She then accelerated well above the speed limit, pulling away from the following truck and continuing to swerve back and forth across the centre line. As she approached Victoria Avenue there was absolutely no sign of her reducing speed. The intersection was marked by a standard stop sign facing her and a hazard sign that was about four times the size of a stop sign, in bright yellow and black demonstrating that Spring Creek Road was coming to an end. That large, bright yellow sign would be dead centre in Ms. Park-Romain’s line of sight.
[14] Ms. Park-Romain proceeded without the right of way across Victoria Avenue where she struck Mr. Stewart’s southbound Dodge Ram and pushed it into the path of a northbound tractor-trailer, fully-loaded with a cargo of brick, whereafter his truck became pinned under the trailer. Mr. Stewart died at the scene as a result of severe head trauma.
[15] Ms. Park-Romain’s collision with Mr. Stewart’s vehicle caused her car to spin; not wearing a seat belt, she was ejected from the car and suffered serious injuries that are described more fully in the agreed statement of facts. After being stabilized at St. Catharines General Hospital, Ms. Park-Romain was transported by air to Hamilton Health Sciences, where she was hospitalised for about three months.
[16] Analysis of a blood sample recovered from Niagara Health Services showed the presence of alcohol in Ms. Park-Romain’s blood at the time she killed Mr. Stewart. She was arrested in hospital in Hamilton in late November. The precise blood-alcohol concentration was not set out in the agreed statement of facts.
[17] In the course of these proceedings, I have been provided with various materials. These include twelve victim impact statements, two of which were read in court, a pre-sentence report in relation to Ms. Park-Romain, some medical records about her and nine reference letters, including a detailed letter from her daughters. [2] I have also been provided with various authorities from other cases dealing with some of the sentencing issues that arise in this case. I have read everything put before me.
The Victim Impact Statements
[18] Mr. Stewart was fifty years old when he was killed. He and Ms. Kennedy were partners in life for over a decade, of which I shall say more. He ran a specialized trucking company. A man his age might reasonably be expected to have had another three decades of life ahead of him. His death deprived him and those in his circle of those decades together. They are understandably angry and adrift. They are broken and nobody can fix them.
[19] Ms. Kennedy read her victim impact statement in court. It was agonizing to listen to. That is not a criticism of Ms. Kennedy because it is both clear, and entirely understandable, that living the life she has lived since Mr. Stewart’s death has been many, many, many times more agonizing, day in and day out, than listening to the words. It is important that people in the community and people in authority be reminded of the catastrophic real-world, real-emotion impact of offenders’ actions. It is important that we never come to see cases like these as routine or as more of the same, that we never become jaded to the enormity of victims’ loss. It is important that we understand that even eighteen months after Mr. Stewart was killed, Ms. Kennedy’s emotions were still raw. [3]
[20] Ms. Kennedy’s emotions understandably ran the gamut: a wish to die so that she could be with her partner, an abiding sense of loneliness and of being on the outside of couple relationships that he and she had enjoyed with others before his death and a sense of betrayal arising from the fact that she and Mr. Stewart, who were not married, were set to sign their wills the following week and that his death meant she was not allowed to inherit as Mr. Stewart wanted her to and instead was left scrambling to establish some sort of financial security. He ran the trucking business and she had given up her job two years earlier to help him do that and to help build the business. She wanted to stay and build the business in Mr. Stewart’s honour, but here again family issues made the environment too toxic, so she felt she had to leave. She even had to fight to keep the home she and Mr. Stewart shared from his parents, because it was the only place she felt safe. She had to sell the trailer in the campground where she and Mr. Stewart had made so many friends. Ironically, the day after Mr. Stewart was killed, a stone sign they had commissioned for their trailer arrived at the campground, engraved with the title: “Where memories are made”.
[21] Ms. Kennedy and her son, Steve, spoke of the huge hole in Steve’s and his children’s lives, whom Mr. Stewart treated as if they were his very own, even though there was no blood relationship. Steve Kennedy said that he and his children lost their foundation when Mr. Stewart died. His children weep for the loss of their grandfather and because they effectively also lost Ms. Kennedy herself, the children’s grandmother, who Mr. Kennedy described as “destroyed”. Felicity Kennedy, Mr. Stewart’s “granddaughter” wrote of how much Mr. Stewart had taught her, how much she missed him and how angry and sad she was, accompanied by drawings of how her family felt before and after his death.
[22] Ms. Kennedy was not the only one who was driven to a very dark place by Mr. Stewart’s death. Mr. Stewart’s mother told of how she became suicidal and now lives a, “traumatized, unhappy life, grief-stricken, medicated every day”, left with only fond memories, an urn and a picture of their only son. Mr. Stewart’s sister wrote of how much she missed her brother, of her sadness when she visits his home and of the wonderful, supportive relationship her brother and Ms. Kennedy enjoyed together.
[23] Sherry Jamieson met Mr. Stewart through work; his was the primary trucking company she used in her job servicing the steel industry. He was reliable, efficient and ethical and he built those characteristics in those who worked for him, but after he died and after Ms. Kennedy left the company their quality of service dropped, creating stress and extra work for Ms. Jamieson because of mistakes being made. This was on top of the fact that over the years she and her fiancé had built a personal relationship with Mr. Stewart and Ms. Kennedy, sometimes booking a campsite at their trailer park to join them. Mr. Stewart’s death had a big impact on Ms. Jamieson, but so, too, did the sense that she had lost Ms. Kennedy, now a shell of who she once was, with justifiable bitterness, sadness and anger replacing laughter.
[24] When Mr. Stewart was killed, he was about two minutes away from the trailer park where he and Ms. Kennedy had a weekend trailer and where they would have spent that weekend together with friends. One friend wrote of how they were planning to have dinner together the next night and share the news that she had just received a clear cancer diagnosis. Another friend wrote of her husband passing the collision scene perhaps thirty seconds after Mr. Stewart was killed, unaware that it was his friend who had been involved. They put their trailer up for sale after Mr. Stewart’s death as they could not abide the weight of his absence across the street. Another wrote of how word of the collision spread through the campground and messages were sent to incoming owners to take a different route to avoid the scene, with the developing sense of dread over time as they realized that Mr. Stewart had not arrived.
[25] The inescapable takeaway from the victim impact statements is that Mr. Stewart was a man who embraced life with passion, who worked hard, who knew how to do almost anything (and learned how to do things he couldn’t do), who would selflessly put those skills to the service of others and who anyone would be fortunate to have known as a partner, stepfather, grandfather, friend, neighbour or business colleague, most likely some combination of the above. Ms. Park-Romain’s driving realistically deprived Mr. Stewart and dozens of others of a few decades of time together and spread untold amounts of pain and other consequences among them.
Materials Relating to Ms. Park-Romain
[26] The materials provided to me about Ms. Park-Romain tell me that she was eighty years old at the time of the offence and is now eighty-two. She has had no previous involvement with the criminal justice system. The materials reflect an abuse-free and stable but not very well-off upbringing with five older brothers; they were not left wanting, nor were they the objects of any abuse. Her mother died when she was fifteen years old and she took on the role of caring for her father’s household.
[27] Ms. Park-Romain has been married twice, first for thirty-eight years, giving her a son who died at age 48 (creating a legacy of unaddressed trauma), and two daughters who remain supportive of her and who care for her needs, care, medical appointments and the like. She is currently in the eighteenth year of her second marriage. She describes her second husband as manipulative and controlling; her daughters call it an abusive relationship. She is his main caregiver as he faces stage three cancer. She said this relationship has been characterized by excessive alcohol consumption on both their parts, starting for her thirteen years ago after the death of her son. She says that alcohol is not a current issue in her life.
[28] Ms. Park-Romain’s life has been marked with significant accomplishment as a marathon swimmer, including a period when she was the second fastest female swimmer in the world. She owned a swimming school and has taught swimming for over fifty years including developing a swimming programme for very young children. She and her first husband welcomed troubled youth into their family home.
[29] I was presented with a variety of letters from parents whose children had attended Ms. Park-Romain’s swimming classes and explained how beneficial they were and how supportive Ms. Park-Romain had been. She is described as having taught thousands of children, as being, “kind, caring and not a malicious person”, who would never intentionally harm anyone, a person who builds children’s life confidence through building their skills, who has worked constructively with autistic and physically and developmentally challenged children and whose, “strong moral compass and unwavering integrity have always been evident” in her professional and personal lives.
[30] Ms. Park-Romain said that she takes full responsibility for what she has done and thinks about it every day; she sees the irony in what she did as juxtaposed with her lifetime focus on saving children from the risk of drowning.
[31] Ms. Park-Romain’s daughter said that Ms. Park-Romain has become forgetful since the collision and has a recent diagnosis of dementia, although the doctor says that is not a formal diagnosis; little if anything hinges on this distinction, though. Her collision-related injuries were significant, including rib fractures, an emergency splenectomy, a pulmonary embolism, arm surgeries, infections, a collapsed lung and cardiac issues, resulting in a three-month hospital stay. She has demonstrated serious manifestations of forgetfulness, outlined by her daughters’ letter.
[32] Ms. Park-Romain conceded that she was under the influence of alcohol when she drove through the stop sign and into Mr. Stewart’s truck.
The Positions of the Crown and Defence
[33] The positions of the parties are not dramatically far apart here. For the Crown, Mr. Sokolski seeks a sentence of two to three years, accompanied by probation if the sentence falls at the bottom of that range where probation would be an available accompaniment.
[34] Mr. Manishen has provided a couple of cases in which conditional sentences were imposed for offences in this category, but he fairly does not press the point, stressing the occasional imposition of such sentences as further support of his position that the appropriate sentence for Ms. Park-Romain is the very bottom of the penitentiary range, that is two years exactly.
[35] Mr. Sokolski and Mr. Manishen are agreed that a five-year driving prohibition would be appropriate.
The Sentencing Process
[36] The Criminal Code sets out the rules that judges must follow in deciding on an appropriate sentence for a particular offender. Every sentence is tailor-made to reflect those two key elements. The purpose of sentencing is to make society safe by denouncing criminal conduct, by deterring the individual before the court and the public generally from committing crimes, by providing reparations for harm done and by aiming for the rehabilitation of the offender, which is a key element in making society safe in the long term. Jail is to be used with restraint, although it is accepted here between the Crown and defence that a jail sentence, in particular a penitentiary sentence is appropriate. Ultimately, countless factors could be relevant in assessing an appropriate sentence.
[37] There are features of the criminal law that can be peculiar, perhaps even puzzling. So it is with driving offences, of which the Criminal Code has a few. One of those offences is the offence of impaired driving causing death, which, like the offence of dangerous driving causing death, carries a maximum available sentence of life imprisonment, although I stress that sentences at or near the maximum are applicable only in the most severe of circumstances including typically for repeat and unrepentant offenders. The reality of impaired driving causing death sentencing is that, even for a first offender such as Ms. Park-Romain, even on a guilty plea, a sentence of five years imprisonment would be entirely unremarkable, a number that is trending upwards as Parliament and the courts recognize the unremitting danger that such drivers pose to Canadians every day. For an offender of Ms. Park-Romain’s age and circumstances, that sentence, for an impaired driving causing death charge, might be brought down to the area of four years.
[38] The offence of dangerous driving causing death also carries a maximum sentence of life imprisonment, although as Mr. Sokolski fairly noted, it is an offence that potentially covers such an enormous range of circumstances that some exceptional cases could merit a sentence as low as a suspended sentence. It is here that peculiar crosses over into puzzling. While conceptually different, drink-driving and dangerous driving have, far, far more in common than what distinguishes them from one another, but the difference in sentencing outcomes has long been drastically different. Unjustifiably so.
[39] Both impaired driving and dangerous driving offences are very often committed by offenders with no previous criminal record and often no Highway Traffic Act record. Whether young, middle-aged or older, they are very often pro-social, otherwise upstanding and contributing members of their communities. As with Ms. Park-Romain, it is almost always said that their offence is entirely out of character for them. However, when their offence leads to death or serious injury (or both, as can often be the case), the sentence imposed on the dangerous driver who kills will typically be a fraction of the sentence for the impaired driver who kills. The breadth of the gap between the two outcomes is peculiar and, I would suggest, not particularly rational.
"I Have Met the Enemy and He is Us"
[40] The simple realities are these. For almost all members of society, driving a car is the most dangerous thing we will do in our lives, certainly the most dangerous thing we will routinely do. However, because of its routine nature, we take driving for granted. We do not think about the fact that even at a “mere” fifty km per hour we are hurtling along the road at fourteen metres or forty-five feet every single second in a vehicle that weighs 4,400 pounds or 2,000 kg, even for the ubiquitous mid-sized SUV. We do not think about the fact that it will take us about 130 feet or forty metres to bring that car to a stop if we have to. We do not think about the irreparable human damage we could do as we head out to meet friends for coffee or to make sure we are not late for work or to pick up children, spouses or groceries as we rush home at the end of the day. Instead, we speed up a bit more as if getting home a minute earlier will matter, follow the vehicle in front far too closely as if that will accelerate time and let our minds wander from the only task that really matters, which is focusing on the car, the road and the thousand things that could happen in between our origin and our destination. We forget the most important equations in the automobile world: “driving + distraction = danger” and “driving + distraction = death”. Whether the distraction is the effect of alcohol on our perceptual or processing skills or our focus on the car radio, a telephone conversation, a text message or any of a dozen other distractions, anything that takes our attention from the core function of driving for more than perhaps a second creates danger. Driver impatience is another of many risk factors.
[41] All drivers will have seen this. Just this weekend, for example, I was driving on a concession road. A line of three cyclists was approaching me, travelling in the opposite direction, dutifully riding in single file in an orderly manner. As I approached the cyclists the driver of a van pulled out from behind them to pass them in my oncoming lane. No competent driver could have thought it was feasible in the available distance to pass the cyclists without either forcing me to take evasive action to avoid a head-on collision or pulling back into the van driver’s own lane and forcing the cyclists off the road, but she passed nonetheless. A generous estimate would say she saved perhaps five seconds on her journey by putting the cyclists and me in danger. Apparently those five seconds were more important than the risk of causing injury or death and risking a prison sentence
[42] This is not to say that all drivers, or even the majority, drive in these ways, but experience shows it is a significant number who do not pay attention or in other ways fail to prioritize the safety of others relative to their own priorities of the moment. For those whose driving crosses the line into dangerous driving, they must know that the consequences will be dire. The sentencing landscape in this province does not send that message.
[43] Most people reading these reasons will forget most of this before the week is out. We shall go back to our pattern of taking our cars and SUVs for granted and forgetting the damage they can do, not giving our relationship with our cars the respect and sharp attention that relationship requires. Whenever we do not pay due attention, we put others at risk. Ensuring that we always prioritize our driving when we are in the driver’s seat too often makes the difference between “just another day” and tragedy.
The Sentencing Cases
[44] I have considered the various sentencing cases put before me. There were a couple of dozen such authorities, some dealing with general principles, some with sentencing elderly offenders, most with the appropriate quantum of sentence. I note that in the latter category all of the cases presented by the Crown pre-date the increased maximum sentence for this offence. All of Mr. Manishen’s cases on the range of sentence (and one other case where a conditional sentence was granted), involve offences committed after the increased maximum sentence came into effect.
[45] I do not propose to outline these cases chapter and verse. I would say that the cases dealing with offences before 18 December, 2018 (the day the maximum sentence for dangerous driving causing death increased) must be seen as inherently less helpful than those that followed since they were imposed in a different sentencing landscape. I do not lightly dismiss those cases or the cases presented from after the maximum sentence changed, particularly having regard to the authorship of many of those decisions. That being said, as elaborated upon later in these reasons, I am compelled to opine that the sentences imposed, both before and after the change in the law, fail to reflect the seriousness of the offences and their impact and perpetuate an unjustifiable gap between the sentence range for dangerous driving causing death and impaired driving causing death.
[46] Parliament increased the maximum sentence for impaired driving causing death from fourteen years to life imprisonment in 2000 and sentences for that offence have increased dramatically as a result, to the point that a pro-social, first offender who has pleaded guilty to impaired driving causing death could now be presumed to receive a sentence of four to six years in the penitentiary. Parliament’s 2018 increase to the maximum sentence for dangerous driving causing death, however, appears to have been ignored in sentencing decisions as the decisions put before me basically track the pre-2018 patterns. The continuing prevalence of mid-range to upper-range reformatory sentences in cases such as these, including in cases with multiple injuries or deaths, cases being sentenced after a preliminary inquiry and so on, suggests that the life and well-being of a person killed or seriously injured by a dangerous driver is incomprehensibly discounted by the courts relative to the life and well-being of a person killed or injured by an impaired driver. This is contrary to the will of Parliament as set out in Bill C-46.
[47] Any underlying logic for the extent of that distinction between typical sentences for impaired driving causing death and dangerous driving causing death is not apparent. I have heard it suggested that such a range of sentences for dangerous driving is explained by the very broad range of behaviour that could make out the dangerous driving offence, but that explanation ignores the Court of Appeal’s use of precisely the same characterization of impaired driving causing death in R. v. Kummer, 2011 ONCA 39 (paragraph 21) and the same court’s description of the breadth of circumstances that could make out criminal negligence in R. v. L.(J.) at paragraph 2).
[48] Even if one were to accept that some differentiation in sentencing ranges between impaired driving causing death and dangerous driving causing death may be justified based on the fact that some of the behaviour qualifying as dangerous driving may be relatively low on the scale, the overall enormous gap in sentences between the two offences cannot be justified. Indeed, while it is obvious that an impaired driver creates danger simply by driving while impaired, it is inherent in the offence that the choice to drive is the decision of a person whose judgment is compromised by alcohol or drugs. In non-drinking dangerous driving offences, the harmful conduct will typically be the product of a criminally bad decision of a person with a fully operative mind, who must surely be at least as morally blameworthy as a person who is drunk or impaired by drugs when they drive. Turning to the seriousness of the offence, the consequences of a death from impaired driving or from dangerous driving are exactly the same.
[49] It is the job of courts to help to make society safe. I would suggest that the area of dangerous and impaired driving is one where we have not done a particularly good job, especially since these are for offences where general deterrence is considered a driving principle and where the typical potential offender is considered likely to respond to general deterrence.
[50] In the context of non-impaired serious driving offences that result in injury or death, the culture of inappropriately low sentences for calamitous consequences also puts the public at risk over time because there is no clear message from the courts that when otherwise good people injure or kill fellow users of the roads by criminally dangerous driving, the price will be significant and will actually bear some meaningful relationship to the damage they have caused, be that injury or death. Otherwise good people, so the theory goes, are precisely the target market for messages of general deterrence and they are very, very often the perpetrators of this carnage, [4] the people who deprive families of their parents or who injure young people and force them to endure many decades of a life now characterized by ongoing pain and suffering, by severe limitations on their potential and by the denial of the enjoyments that people take for granted when they have not been the victims of a serious driving offence.
What is the Appropriate Sentence For Ms. Park-Romain?
[51] In light of the foregoing and without being exhaustive--and trying not to repeat unduly factors I have addressed elsewhere--I include the following considerations in my determination of the appropriate sentence:
i. The cardinal principle governing sentence is proportionality, i.e. weighing the seriousness of the crime and its consequences alongside the moral blameworthiness of the offender.
ii. In this case, the seriousness of the crime is enormous. It is, of course, inherent in the offence itself that death was a consequence of Ms. Park-Romain’s crime. In addition to that, the manner of Ms. Park-Romain’s driving did not fall into the lower level of conduct that would make out the offence of dangerous driving; rather it was a prolonged period of bad driving that over the period recorded was persistently bad and reflected a driver who ought to have been nowhere near a driver’s seat and whose highly erratic driving should have made any reasonable person, including her, aware that she was a serious danger to other users of the road. This last point, I would say weighs against Ms. Park-Romain in both the seriousness of the offence and the moral responsibility measurements.
iii. The seriousness of the crime must also take into effect the impact of that crime on the “secondary” victims, i.e. Ms. Kennedy and her family, the other members of Mr. Stewart’s family, their friends, neighbours and so on. The killing of Mr. Stewart diminished the quality of their lives dramatically, in Ms. Kennedy’s case catastrophically.
iv. The seriousness of the crime is also reflected in the fact that five years ago, before Ms. Park-Romain committed this offence, Parliament increased the maximum sentence from fourteen years to life imprisonment. Legislative changes of that nature are messages from Parliament to the courts about how seriously the offence should be viewed. [5] As noted, this means that sentencing decisions applying the pre-2018 sentence provision are of limited utility in determining a fit sentence for an offence committed after the change. Sentencing decisions after the change need to be scrutinized to see if they actually reflect Parliament’s clear intent.
v. With respect to Ms. Park-Romain’s moral responsibility, unlike some dangerous driving cases, she was the sole cause of what happened. There was no bad driving by anyone else. The weather does not share in the blame. Neither do lighting or road layout or road condition.
vi. I was struck by something Ms. Kennedy said: even her twelve-year-old granddaughter knows what Ms. Park-Romain did was wrong. That is itself a valid insight into moral responsibility.
vii. Ms. Park-Romain’s moral responsibility for what happened is not reduced by virtue of any cognitive deficits at the time of the offence. The material before me about Ms. Park-Romain’s cognitive limitations demonstrates that they are a result of the collision, not a contributing cause of it. Cognitive decline is an unsurprising consequence of so many injuries involving so much serious medical intervention for a person of Ms. Park-Romain’s age. Of course, how much less medical intervention would have been required if Ms. Park-Romain had been wearing a seat belt and had not been ejected from her car is unknown.
viii. Ms. Park-Romain comes to the court as a person with no previous criminal record. She has lived a long, productive life contributing to her community for a very long time as both a foster parent for a significant number of children and for around five decades teaching life-saving and character building skills to thousands of people, particularly children. This works to her benefit, although it must be said that the vast majority of people convicted of crimes like this have also lived pro-social and contributing lives, albeit not always to the same extent or for the same duration.
ix. I accept that, like many offenders with charges like this, Ms. Park-Romain is genuinely remorseful for what she has done.
x. I accept that there is no need here for specific deterrence for Ms. Park-Romain. This offence, however, is one where general deterrence and denunciation have consistently been recognized as the central focus of sentencing, a focus that remains established even though the defendants are very often first offenders.
xi. Ms. Park-Romain has pleaded guilty. A defendant who has pleaded guilty will be entitled to recognition for that plea, although the amount of recognition will vary with the circumstances. [6] In this case, Ms. Park-Romain is entitled to recognition of the fact that she pleaded guilty and thus saved court time at trial and possibly also at a preliminary inquiry. More importantly, her plea saves Mr. Stewart’s family and friends from having this case hanging over their heads for an even longer time, which one hopes will assist at least somewhat in their healing. I do not, however, agree with the suggestion made by Mr. Sokolski, that she is entitled to credit for her plea insofar as she gave up a Charter argument relating to the collection of her blood sample at trial. She did not plead to impaired driving causing death and the details of her blood alcohol concentration are not before the court on sentencing, so the benefit she gets arising from any potential Charter argument lies in the Crown not proceeding on that charge, a conviction for which would absolutely have led to a substantially higher sentence. In relation to the charge she pleaded guilty to, dangerous driving causing death, the Crown’s case was unanswerable in light of the dash-cam evidence.
xii. The law recognizes that a person of Ms. Park-Romain’s age is entitled to some diminution of sentence relative to a younger offender.
xiii. The law does not recognize that Ms. Park-Romain should receive a lesser sentence because of the general state of her health unless it has been demonstrated that the correctional authorities are incapable of providing appropriate care. That is a long-established principle. [7] There has been no suggestion that the Correctional Service of Canada is incapable of providing care to Ms. Park-Romain. To the contrary, one of the reasons Ms. Park-Romain seeks a penitentiary sentence is out of recognition that the quality of care in the federal penal system will be better than what she might expect in a provincial reformatory.
xiv. Ms. Park-Romain cannot call for a lesser sentence because her criminally bad driving also caused her injuries. [8]
Conclusion
[52] I am of the view that a three-year sentence, namely the upper end of the Crown’s proposed range, is the lowest fit sentence that I could reasonably impose in this case. In doing so I take into account all of the considerations that favour Ms. Park-Romain including her age, her plea, her lack of any record and her established pattern of contributing to the community through her business teaching young people (and not so young) the important skill of swimming and the general skills of confidence building that accompany that. If it were not for her age, a sentence of four years or longer would be justified. A sentence of less than three years would be inadequate to address the objective seriousness of her offence and the huge impact Mr. Stewart’s death has had on his family, friends and community. There is nothing that can make Mr. Stewart’s friends, family and community whole; a sentence below three years, however, would in my opinion be unfit and would simply add insult to grievous injury.
[53] Ms. Park-Romain will be prohibited from driving for five years plus the entire period of imprisonment imposed upon her.
[54] Ms. Park-Romain shall have two years to pay the two-hundred-dollar victim surcharge.
Released: 15 July, 2023
[1] Ms. Park-Romain was originally charged with impaired driving causing death, driving with an excess blood alcohol concentration causing death and criminal negligence.
[2] One of the reference letters is from someone who shares my surname. There is no connection whatsoever.
[3] At least one of the cases put before me stressed the obvious point that criminal sentencing is never about vengeance, which is fair. There will undoubtedly be many cases where no sentence will satisfy the victim’s family and friends. That being said, it seems to me that the level of sentence routinely imposed in these cases does not come within a country mile of being or seeming like vengeance. The real problem is that the sentences are skewed more to the opposite end of the scale, diluting the seriousness of the crime and its impact to the point where the courts risk losing credibility in the eyes of the public.
[4] The Supreme Court of Canada recognized the long lineage of this line of reasoning at paragraph 129 of R. v. Proulx, 2000 SCC 5, when it noted that, “dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), 40 O.R. (3d) 541 (C.A.), at pp. 542-43.
[5] Speaking of earlier legislated increases in the maximum sentences for impaired driving offences, the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 7 said clearly: “The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.” That same principle applies if one changes the underlined word from “impaired” to “dangerous”.
[6] Different panels of the Court of Appeal have ruled differently on this issue, with one panel saying that all guilty pleas are of equal value, whereas another panel has said that the value of the plea will vary from case to case. Given these divergent views, I am free to choose which to follow. Only the latter position makes sense as an offender who pleads despite having strong defences and/or viable Charter arguments inherently gives up more by way of her guilty plea than someone who pleads while faced with an unanswerable Crown case.
[7] See, for example, R. v. Drabinsky, 2011 ONCA 582 at paragraph 170.
[8] See, for example, the decision of Kenkel J. in R. v. Stennett, 2018 ONCJ 466, para 7.
