CITATION: R. v. Tavares, 2023 ONCJ 517
DATE: November 24, 2023
IN THE MATTER OF
the Highway Traffic Act, R.S.O. 1990, c. H.8
and
the Provincial Offences Act, R.S.O. 1990, c. P.33
Between
His Majesty The King
prosecutor
and
Jordan Tavares
defendant
Ontario Court of Justice
Brampton, Ontario
Quon J. P.
Reasons for Sentence
Convictions were entered on March 3, 2023 for the following offences:
(1) s. 144(7) H.T.A. – “fail to yield to pedestrian”.
(2) s. 53(1) H.T.A. – “driving while under suspension”.
Sentencing hearing held: June 22, 2023 and September 12, 2023.
Judgment released: November 24, 2023.
Counsel:
M. Bayat, assistant Crown attorney
S. Senatorov, legal representative for the defendant
Cases Considered or Referred To:
Galaske v. O'Donnell, 1994 128 (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28 (S.C.C.).
Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30, [2019] O.J. No. 227 (Ont. C.A.), per MacPherson, Miller and Paciocco JJ.A.
R. v. Abrosimo, 2007 BCCA 406, [2007] B.C.J. No. 1700 (B.C.C.A.).
R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 (S.C.C.).
R. v. Bartkow (1978), 1978 3731 (NS CA), 24 N.S.R. (2d) 518 (N.S.S.C.).
R. v. Cotton Felts Ltd.(1982), 1982 3695 (ON CA), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 (Ont. C.A.), per Martin, Zuber and Blair JJ.A.
R. v. Chan, 2012 ABPC 272, [2012] A.J. No. 1023 (Alta. Prov. Ct.).
R. v. D.F.P., 2005 NLCA 31, [2005] N.J. No. 176 (N.L.C.A.).
R. v. D.S.K., 2005 SKCA 18, [2005] S.J. No. 97 (Sask. C.A.).
R. v. E.T.P., [2002] M.J. No. 64 (Man C.A.).
R. v. Gardiner, 1982 30 (SCC), [1982] S.C.J. No. 71 (S.C.C.).
R. v. Hicks, 2007 NLCA 41, [2007] N.J. No. 219 (N.L.C.A.).
R. v. Hopkins, [2005] O.J. No. 6063 (Ont. C.J.), per Wallace J.
R. v. Jones(1994), 1994 85 (SCC), 89 C.C.C. (3d) 353 (S.C.C.).
R. v. Jordan Tavares, [2023] O.J. No. 985, 2023 ONCJ 94 (Ont. C.J.), per Quon J.P.
R. v. Kirk (No.1), [2005] O.J. No. 3316, 2005 ONCJ 352 (Ont. C.J.), per Kukurin J.
R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53 (S.C.C.).
R. v. M.(C.A.)(1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.).
R. v. Riley, (1996) 1996 NSCA 112, 107 C.C.C. (3d) 278, 150 N.S.R. (2d) 390, [1996] N.S.J. No. 183 (N.S.C.A.).
R. v. Snider, (1977), 1977 1992 (ON CA), 37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont. C.A.), per Martin, Lacourciere and Weatherston JJ.A.
R. v. Solomon, 2008 SCC 62, [2008] S.C.J. No. 55 (S.C.C.).
R. v. Sweeney (1992), 1992 4030 (BC CA), 71 C.C.C. (3d) 82, 11 C.R. (4th) 1 (B.C.C.A.).
R. v. Tiegs, 2012 ABCA 116, [2012] A.J. No. 378 (Alta. C.A.).
R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43 (S.C.C.).
R. v. Virk, [2002] O.J. No. 4102 (Ont. C.J.), per Madigan J.P.
R. v. Wharry, 2008 ABCA 293, [2008] A.J. No. 945 (Alta. C.A.).
R. v. Wholesale Travel Group Inc. (1991), 1991 39 (SCC), 67 C.C.C. (3d) 193 (S.C.C.).
Statutes, Regulations and Rules Cited:
Criminal Code, R.S.C., 1985, c. C-46, ss. 718, 718.1, 718.2, 718.2(a), 718.2(b), 718.2(c), 718.2(d), 723(1) and (2), and 724(1).
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 31, 32(1), 53(1), 53(1.1), 53(3), 144(7), and 144.1(1).
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 56(1), 72, 72(1)(b), 72(2), and 72(3)(c).
Reference Material Cited or Considered:
Ruby, C. Sentencing (10th Ed.) (Toronto, Canada: LexisNexis Canada Inc., 2020).
Stewart, S. Stewart on Provincial Offences Procedure in Ontario (3rd. Ed.) (Toronto, Canada: Earlscourt Legal Press, Inc., 2011).
Exhibits entered:
Exhibit "1" - Seven page “Pre-Sentence Report” prepared by Probation & Parole Officer Alexis Trigiani-Kirwood and dated Sept. 7, 2023, with direction for pre-sentence report under s. 56 of the Provincial Offences Act, and email from Peter Scaramuzzo, Court Liaison Officer/Probation & Parole Officer (9 pages)
Exhibit "2" - Two Victim Impact Statements written by the deceased pedestrian’s sister, Elisabeth Maria Hekman, dated October 2, 2022, and written by the deceased pedestrian’s daughter, Mieke Bosscher, dated October 2, 2022 (2 pages).
Exhibit "3" - certified copy of Ministry of Transportation FOI Restricted Driving Record of Jordan Tavares, dated October 3, 2022 (17 pages).
Exhibit "4" - copy of “Coroner’s Investigation Statement” numbered 2020-1472-A of coroner Dr. Adriana Krizova dated August 2, 2020 in which Martha Bosscher’s death was pronounced and which indicates that the medical cause of death was from “Complications of Blunt Impact Chest Trauma” (3 pages).
Exhibit "5" - document entitled “Driver’s Licence Check Results” from Ontario Ministry of Transportation dated September 11, 2023, which states that driver’s licence # [removed for privacy] (in respect to Jordan Tavares) is not suspended, cancelled or expired and that the driver is allowed to operate the type of vehicle for which they are licensed (1 page).
Exhibit "6" - a document entitled “Client’s Financial Information Form” prepared by Traffic Law Paralegal Services in respect to Jordan Tavares’ income and monthly expenses (2 pages).
Exhibit "7" - copy of R. v. Hopkins, [2005] O.J. No. 6063 (Ont. C.J.), by Wallace J. (22 pages).
1. INTRODUCTION
[1] These are the reasons in the sentencing of Jordan Tavares, who was convicted of committing two Ontario Highway Traffic Act, R.S.O. 1990, c. H.8 (H.T.A.) offences by this court on March 3, 2023 (see R. v. Jordan Tavares, [2023] O.J. No. 985, 2023 ONCJ 94 (Ont. C.J.). The two convictions were for “failing to yield to a pedestrian” under s. 144(7) and for “driving while under suspension” under s. 53(1). Tavares had been driving a pickup truck and had stopped at an intersection for a red light on July 28, 2020, in Brampton, and when he had commenced to make a right turn he unfortunately collided with Martha Bosscher, who is disabled and who had just lawfully entered the pedestrian crosswalk while she had been riding on her mobility scooter. Martha Bosscher was 85 years old at the time, and after being struck by the pickup truck driven by Tavares, her head was bleeding and she had been taken by ambulance to the hospital for her injuries, where she subsequently succumbed to her injuries and passed away four days later on August 1, 2020. The collision had also occurred during the COVID-19 pandemic and Martha Bosscher had been on a shopping trip outside of her residence, which had been a highlight of her day, so that she could deal with living in isolation from her friends and family. She had also passed away in a hospital that had placed restrictions on the number of people who could enter the hospital, so only a few of her family were able to visit her at the hospital before she passed away.
[2] After Tavares had been convicted for the two offences, the Crown had informed Tavares' first legal representative that it was seeking a custodial term as a sentence and the matter was then adjourned so that a Pre-Sentence Report (“P.S.R.”) for the offender could be prepared. The sentencing hearing for Jordan Tavares had been initially scheduled for June 22, 2023, but it could not begin as Tavares’ original legal representative had applied on that day to be removed as Tavares’ representative, and the sentencing hearing was then adjourned to September 12, 2023, so that Tavares could retain new representation and to meet with a probation officer. After Tavares finally attended, and met with a probation officer on August 17, 2023, a six-page P.S.R. dated September 7, 2023 (Exhibit #1), was prepared by a probation officer and provided to the court and also provided to both the Crown and to Tavares' legal representative. Subsequently, Tavares’ sentencing hearing was held and completed on September 12, 2023.
[3] At the September 12th sentencing hearing, the Crown argued for a term of imprisonment of 6 months and a probation order for a period of 12 months with a condition for Tavares not to drive or operate any motor vehicle during that period for Tavares’ conviction of “driving while under suspension” under s. 53(1). For the “failing to yield to a pedestrian” conviction under s. 144(7) the Crown seeks a $500 fine. On the other hand, Tavares' legal representative submitted that a sentence of imprisonment is not appropriate for a first conviction for the “driving while under suspension” conviction, since Tavares had originally brought his motor vehicle to a stop before he collided with the pedestrian; that Tavares’ driving conduct had not been egregious, albeit it did fall below the standard of a reasonable prudent driver; and that the reason that Tavares’ driver’s licence had been suspended was due to unpaid fines and that Tavares has paid off all his fines, and that once Tavares was charged on July 28, 2020, Tavares had paid off the fines and reinstated his driver’s licence (about three weeks) shortly after the collision; and that Jordan Tavares and his family would consequently also suffer economically from the automatic suspension of Tavares’ driver’s licence for 6 months, as Tavares had been using his motor vehicle to travel to his workplace as a self-employed concrete worker; and that any fine that would be imposed on Tavares would negatively affect Tavares and his family from paying all their bills.
[4] However, the Crown disagrees with Tavares' legal representative’s submission on the unsuitability of a jail sentence and argues that the aggravating circumstances of Martha Bosscher’s death which ultimately resulted from the injuries sustained from the collision, Tavares not being legally permitted to drive a motor vehicle on a highway at the time of the collision because his driver's licence had been suspended (already for 320 days), and Tavares’ numerous convictions (five) for driving without a valid and current driver’s licence, calls for a custodial sentence to be imposed.
[5] First of all, sentencing an offender convicted of committing a traffic offence, in which someone has died as a result of their injuries that had been sustained in a motor vehicle collision, is not a tool for retribution or revenge or for obtaining an eye-for-an-eye measure of justice for the victim or the victim’s family, but is a process of balancing legal principles and objectives, applying the rule of law, and for treating the victim and their family with respect.
[6] Ergo, as result of the Crown’s and Tavares' legal representative’s sentencing submissions, the principal issue that has to be decided is whether a term of imprisonment should form part of the sentence imposed on the offender, Jordan Tavares, who has been convicted for the first time for the offence of “driving while under suspension” under s. 53(1) of the H.T.A. After a review of the sentencing principles, including the principle of restraint, and the statutory penalties that are available for a court to impose on an offender, it is evident that even for a first conviction, a term of imprisonment is available as a potential penalty that can be imposed, since s. 53(1) of the H.T.A. specifically provides for imprisonment for up to a maximum of six months as a possible sentence for an offender who is convicted of “driving while under suspension”. But more importantly, the present penalty provision for that offence contained in s. 53(1) does not expressly state that a term of imprisonment can only be imposed when the offender has been convicted previously of “driving while under suspension” offence or only when the offender has collected more than one prior conviction of the same offence during a certain period. Ergo, despite the sentencing principle of restraint, the availability of a jail sentence of up to six months for committing the “driving while under suspension” offence when most penalties for H.T.A. offences are for fines, would also dispel any notion that a sentence of imprisonment is not warranted for a first conviction of “driving while under suspension”. In other words, the Ontario Legislature decided that the offence of “driving while under suspension” under s. 53(1) is serious offence that requires a severe penalty to deter suspended drivers from driving on Ontario highways. Moreover, Tavares’ situation and circumstances are different from the run-of-the-mill convictions for “driving while under suspension” where consideration for imposing a jail sentence is primarily predicated on a history of previous convictions of “driving while under suspension”, so that imprisonment would not likely be imposed for a first conviction. However, in an exceptional case like the present, where there is a serious injury to a person resulting from a collision and the consequential death of that person from those injuries that had been caused by the driving actions of the convicted offender while the convicted offender was a suspended driver, a sentence of imprisonment for a first-time offender of s. 53(1) would not be incongruous to the principle of restraint. Accordingly, even though imposing a custodial sentence for a first conviction for the offence of “driving while under suspension” is permissible, it would nonetheless still depend on a myriad of factors.
[7] And lastly, after thorough and well-argued submissions were made by both the Crown and by the Tavares' legal representative as to the appropriate penalty that the court should impose on Jordan Tavares for committing the two H.T.A. offences, judgment on sentence was reserved on September 12, 2023, and adjourned to November 24, 2023, for judgment. These, therefore, are the written reasons for sentence:
2. THE OFFENCES COMMITTED BY JORDAN TAVARES
[8] Jordan Tavares was convicted on March 3, 2023, for committing the following two Highway Traffic Act offences on July 28, 2020, at approximately 2:22 p.m. at the City of Brampton that were set out in Information #999-20-06956:
(1) drove a motor vehicle on Steeles Avenue, at the intersection of Steeles Avenue and Lancashire Lane, controlled by automatic traffic signals, and caused said vehicle to “fail to yield the right of way to a pedestrian” lawfully within an intersection,
Contrary to Section 144(7) of the Highway Traffic Act.
(2) did unlawfully operate a motor vehicle, licence number [removed for privacy], on a highway, namely on Steeles Avenue at Lancashire Lane, when his driver’s licence was suspended by operation of the Highway Traffic Act
Contrary Section 53(1) of the Highway Traffic Act.
3. SUBMISSIONS ON PENALTY
(a) Submissions on penalty made on behalf of Jordan Tavares
[9] Jordan Tavares’ legal representative submits that Tavares’ 17-page driving abstract starting from 2008 shows that Tavares has only been convicted for minor driving offences, such as failing to surrender insurance card, driving with an expired driver’s licence, not signing the ownership permit in ink, and minor speeding offences. Although it is has been conceded by Tavares' legal representative that Tavares has over the last 15 years had a conviction nearly every year and even for having a conviction after the pedestrian collision on July 28, 2020, and that Tavares did not have the most exemplary driving record, it is submitted that the driving record should take into account that Tavares spends a lot of time on the road and only gets convicted of minor violations and that none of those convictions were for a major traffic violation. In addition, Tavares’ legal representative notes that the driving abstract also reveals a pattern of how Tavares deals with his traffic tickets, in that when Tavares receives a minor traffic violation and then gets convicted of that violation, Tavares does nothing about paying the fine and then gets his driver’s licence suspended by the Ministry of Transportation for defaulting in the payment of those fines. However, when Tavares does learn about his driver’s licence being suspended for unpaid fines, Tavares' legal representative contends that Tavares pays off his fines and then gets his driver’s licence reinstated. The Tavares' legal representative further submits that on average this reinstatement usually occurs two weeks after he finds out about his suspension and that Tavares will then pay off his fines and reinstate his driver’s licence. In short, it is submitted on behalf of Tavares that Tavares on previous occasions did not pay his fines before they were in default, but that Tavares did take positive steps, although usually a little too late in paying his fines, and that Tavares would always pay off his fines in order to reinstate his driver’s licence. Unfortunately, it is also submitted that in paying off his fines it would happen late and that it would happen every time with a traffic ticket.
[10] In addition, Tavares' legal representative submits that Tavares had a difficult time before the collision on July 28, 2020, in dealing with his tickets and fines, but that presently with the help of his common law partner, Tavares has been able to stick with deadlines and on how he manages daily life, and that to date, Tavares pays off his tickets on each occasion by going online and pays off his fines before his driver’s licence is suspended by the Ministry of Transportation for unpaid fines. In short, Tavares' legal representative submits that Tavares after that fateful collision of July 28, 2020, has not ignored a single fine and has taken steps to ensure his driver's licence is valid before he drives.
[11] More importantly, Tavares' legal representative also submits that Jordan Tavares has never been convicted of “driving while under suspension” until the present case. Furthermore, Tavares' legal representative submitted Exhibit #5, which indicates that Tavares’ driver's licence is still current and valid as of September 11, 2023. As well, Tavares' legal representative emphasized that Tavares only received minor traffic violations after the accident of July 28, 2020, and has paid the fines on those tickets right away, and that this shows a noticeable change in his previous pattern of ignoring his fines and letting his driver’s licence become suspended for unpaid fines, in that Tavares has actually paid off the fines for his tickets before they were in default and before causing a suspension of his driver’s licence for unpaid fines.
[12] In addition, Tavares' legal representative further submits that Tavares’ driving record indicates that Tavares had been involved in two motor vehicle collisions. For the first collision, Tavares' legal representative submits that Tavares had been rear-ended but was not at fault in that collision, and that for the second collision, it would the present case. Furthermore, Tavares' legal representative submits that although the pedestrian collision of July 28, 2020, is very tragic, the wrongful conduct by Tavares in that pedestrian collision is not the conduct for a criminal offence, but for a provincial offence. In addition, Tavares' legal representative submits that Tavares’ act or omission was not done purposely or intentionally, which is required for a criminal offence, but that his act or omission had failed his duty to the public. Moreover, Tavares’ act or omission, submits Tavares' legal representative, did not involve risk-taking behaviour such as speeding, running a red light, or making unsafe lane changes. Instead, Tavares' legal representative submits that Tavares had brought his pickup truck to a stop at a red light and made a right turn when the unfortunate injury to the victim resulted. In addition, it is further submitted that Tavares had not driven off, but had stayed and cooperated at the scene of the accident, and that Tavares had also gotten out of his truck and offered assistance to the pedestrian by taking off his shirt and giving it to the pedestrian to comfort the pedestrian.
[13] Furthermore, Tavares' legal representative submits that Tavares is not a person who did not care about what had happened, as Tavares does appreciate what had occurred and has been distraught over it. In addition, it is submitted that Tavares had offered help and had cooperated with the authorities.
[14] Tavares' legal representative also submits that Tavares’ legal strategy in regard to not appearing in court, as well as his lack of participation in the trial should not be viewed negatively, since identification of the driver of the pickup truck that had struck the pedestrian was at issue, and that particular strategy and legal position had been available to the defence.
[15] As for the penalty for the "fail to yield to pedestrian” conviction, Tavares' legal representative points out that s. 144(7) does not provide for incarceration and that the sentencing court can only impose a fine. However, Tavares' legal representative submits that the gravity of the conduct by Tavares in committing that particular offence does not warrant or support the maximum penalty, as Tavares had stopped his motor vehicle before the impact with the pedestrian and had cooperated with the police. Moreover, Tavares' legal representative submits that the failure to yield to the pedestrian should be viewed as a mistake. In addition, Tavares' legal representative submits that the driving conduct by Tavares just before the collision is not classified as terrible and that it was an unfortunate accident that was preventable. Accordingly, Tavares' legal representative submits that the sentence that could be imposed for the s. 144(7) offence should be proportionate to the circumstances of the offender.
[16] As for the Pre-Sentence Report, Tavares' legal representative emphasizes that Tavares had participated and had been interviewed by the probation officer, who indicated in the written report (Exhibit #1) that no recommendation was necessary and that there were no areas of concern. Moreover, Tavares' legal representative submits that Tavares’ sister and partner believe that Tavares suffers with ADHD and has difficulties concentrating and completing simple tasks, and that Tavares may need to seek further help. Additionally, Tavares' legal representative submits that the report indicates that Tavares is extremely remorseful and that his mental health has been affected by the offence, and that Tavares would benefit from counselling.
[17] And, in respect to Tavares and his family’s financial circumstances, Tavares' legal representative submits that Tavares’ partner’s salary will not be enough to support their family if Tavares were to be incarcerated for a significant period, as Tavares and his partner are basically breaking even financially every month, after rent and expenses are paid.
[18] In addition, Tavares' legal representative also highlights that presently, Tavares’s driver’s licence is now in order, and that Tavares works and contributes to society, and that society benefits from Tavares who works and supports his family.
[19] In respect to the issue of the appropriate penalty for the “driving while under suspension” offence, Tavares' legal representative stresses that a jail sentence for a first conviction for “driving while under suspension” would be a rarity.
[20] As for aggravating circumstances to consider, Tavares' legal representative submits that there had been a tragic loss of life resulting from the collision with the pedestrian. And that imposing a jail sentence for the “driving while under suspension” conviction in order to send a message to the public in this case, would not require imposing a sentence of incarceration, as imposing such a severe penalty would not take into account the quality of driving that had been involved. Moreover, Tavares' legal representative submits that the present conviction for “driving while under suspension” had more to do with administrative non-compliance and not with Tavares’s actual driving conduct. And, although Tavares had not complied with those rules and was behind the wheel of a motor vehicle while Tavares’s driver’s licence was suspended, Tavares' legal representative submits that Tavares had fixed the issue with his suspended licence right away, by paying off the outstanding fines immediately after the collision with the pedestrian.
[21] In respect to mitigating factors to consider, Tavares' legal representative submits that Tavares is still dealing with the consequences of the collision with the pedestrian and that if Tavares could relive that event again, we wouldn’t be here.
[22] In addition, Tavares' legal representative submits that a custodial sentence imposed on Tavares for the “driving while under suspension” conviction would not advance the interest of society, in light of Tavares post-collision conduct and that Tavares’ driver’s licence being suspended for default of fines would not likely occur again, as Tavares now pays off his fines immediately, and that Tavares’s partner has taken steps to ensure that Tavares makes timely payment of his bills and fines, so the situation of defaulting on fines should not occur again.
[23] Furthermore, Tavares' legal representative contends that sending Tavares to jail for failing to comply with an administrative requirement would be excessive and that there is nothing that Tavares can do now to change what had occurred as a result of his collision with the pedestrian. Moreover, imposing a jail sentence as denunciation for Tavares’s failure to pay off his fines in a timely fashion is not necessary, as everything about Tavares’ driver’s licence being suspended for unpaid fines is fixed today.
[24] Moreover, Tavares' legal representative also emphasizes that Tavares driver’s licence will be suspended for six months and a custodial sentence would be outside the range of penalty that is available to the court and that other penalties would instead be able to address deterrence. In addition, Tavares' legal representative submits that the six-month suspension will be heartfelt by Tavares, as Tavares will have to arrange other transportation to get to work, and that the fines that could be imposed against Tavares will not be small and that it would take months for Tavares to save that amount of money in order to pay off the fines. Accordingly, Tavares' legal representative submits that a jail sentence for a first conviction for “driving while under suspension” is not warranted.
[25] In addition, Tavares' legal representative further emphasizes that Tavares had been there and had lived through that experience of a tragic loss of life and has had his life turned upside down, and has been affected by that collision.
[26] Furthermore, in arguing against the application of the R. v. Hopkins, [2005] O.J. No. 6063 (Ont. C.J.) case, in which the convicted offender had been sentenced to a period of imprisonment for being convicted of “driving while under suspension”, Tavares' legal representative submits that the Hopkins case can be distinguished as Hopkins, who received a custodial sentence for a “driving while under suspension” offence had been convicted previously a number of times for “driving while under suspension”, while this would be Tavares’ first conviction for “driving while under suspension”, and like a criminal case it would be rare to impose a jail sentence for a first conviction.
[27] In reply, to the Crown’s sentencing submissions on Tavares’ five convictions for “driving without a valid and current driver’s licence”, Tavares' legal representative submits that where Tavares had previously entered a guilty plea to the offence of “driving without a valid and current driver’s licence” under s. 32(1) of the H.T.A., it is a common resolution, and that this type of resolution may have been based on Tavares not knowing that his driver’s licence had been suspended and drove while suspended because he did not receive proper M.T.O. notice about the licence suspension or that Tavares may have had a defence to the “driving while under suspension” charge, or the prosecution may not have had sufficient evidence in respect to proper notice of the suspension or that there had been a lack of sufficient notice. As such, Tavares' legal representative submits that no weight can be placed on the Crown submission that Tavares must have been driving while his driver’s licence had been suspended on four prior occasions before the pedestrian collision. Furthermore, Tavares' legal representative also submits that Tavares in having over 12 convictions for minor driving offences over 15 years of driving is not an atrocious driving record. Moreover, after the July 28, 2020, collision with the pedestrian, Tavares' legal representative submits that Tavares no longer has the same careless pattern of dealing with his tickets and fines, since there has not been any M.T.O. suspensions and no default of fines for Tavares over those 3 years. Furthermore, Tavares' legal representative also submits that since 2008, Tavares had gotten a traffic ticket almost every year and then ignored the ticket, but now his driving record indicates that over the last 3 years that pattern has changed, as Tavares now takes proactive steps to address this, and defaulted fines that led to licence suspensions no longer occurs and has not occurred for Tavares after 2020.
[28] Consequently, Tavares' legal representative submits that the penalty that should be imposed against Tavares for the two H.T.A. offences should be a financial penalty and a term of probation to address Tavares’ issues that should also include a condition to seek help for his emotional stress and in order for Tavares to meet deadlines.
(b) Submissions By The Crown On Penalty
[29] For the “driving while under suspension” conviction, the Crown seeks the maximum penalty of six months in jail and a period of probation for one year with the three statutory conditions set out in the Provincial Offences Act, R.S.O. 1990, c. P.33, and the additional conditions that Tavares is “not to drive or operate or have care and control of any motor vehicle”, and “not to be in the driver’s seat of any motor vehicle”, and “not to possess any keys or ignition devices for any motor vehicle”. And, for the “fail to yield to pedestrian” conviction, the Crown seeks a fine of $500, which is more than the minimum fine of $300 and less than the maximum fine of $1,000 that could be imposed by the court for that particular offence. In addition, the Crown submits that these penalties for the two H.T.A. offences would be proportional to the gravity of the offence and the degree of culpability for the offences committed by Tavares. Moreover, the Crown submits that the sentencing principles from the criminal law would also apply to provincial offences.
[30] For aggravating factors to consider, the Crown submits that the sentencer can rely on the list of factors that are set out in s. 718.2(a) of the Criminal Code in respect to aggravating factors and that they would also apply to Tavares. Moreover, the Crown submits that the penalties they are seeking will address the sentencing principle of “denunciation” and Tavares’ driving record, and that a jail sentence for a first offence, if warranted, is available to the court, and that in the present case, a jail sentence is warranted for the “driving while under suspension” conviction.
[31] In particular, the Crown argues that a jail sentence is warranted for the “driving while under suspension” offence committed on July 28, 2020, since previous fines imposed on Tavares did not deter him from driving while his driver’s licence had been suspended. In addition, even though Tavares had not been convicted of “driving while under suspension” on other occasions prior to the conviction for “driving while under suspension” for the offence date of July 28, 2020, the Crown submits that Tavares had actually pled guilty to the lesser offence of “driving without a valid and current driver’s licence” on five previous occasions when he had been charged with the offence of “driving while under suspension”. On those pleas by Tavares to the lesser offence of “driving without a valid and current driver’s licence”, the Crown submits that the court had been lenient with Tavares for those past “driving while under suspension” charges. However, the Crown submits that Tavares is now before the court again for committing a similar offence. And, more importantly, the Crown submits that driving is a privilege and not a right, and that the public needs to be protected from unlicensed drivers. Furthermore, the Crown reiterates that Tavares has driven in the past when his driver’s licence had been suspended and not legally permitted to drive, which is evidenced in Tavares’ driving record when he had been convicted of “driving without a valid and current driver’s licence”.
[32] As evidence of this contention that the defendant continued to drive during the times that his driver’s licence had been suspended for default of payment of fines, the Crown points to Tavares’ driving record in Exhibit #3 and identifies the offence dates of July 24, 2012, September 4, 2012, September 5, 2012, March 26, 2013, and June 11, 2014, in which Tavares had been charged with “driving while under suspension”, but had subsequently pled guilty to the lesser of offence of “driving without a valid and current driver’s licence” that is contrary to s. 32(1) of the H.T.A., in respect to those five charges. Accordingly, on those five offence dates, the Crown submits that Tavares must have been driving a motor vehicle on a highway when his driver’s licence had been suspended. Also, during the periods when Tavares’ driver’s licence had been suspended, the Crown submits that Tavares had also been convicted of committing other H.T.A. offences, such as the speeding offence of “95 km/h in 80 km/h zone” on September 4, 2012, during the period of suspension between June 6, 2012 to Sept 14, 2012, and the offence of “operating a motor vehicle on a highway without insurance” on June 11, 2014, during the period of suspension between February 21, 2014 to June 11, 2014.
[33] In respect to aggravating and mitigating circumstances to consider in determining the appropriate sentence for Jordan Tavares, the Crown submits that under the Criminal Code a sentence can be increased or reduced when there are respectively aggravating and mitigating circumstances. As for aggravating circumstances, the Crown submits that at the time of the pedestrian collision, Tavares had been driving a motor vehicle on a highway when his driver’s licence had been suspended; that the death of the pedestrian, Martha Bosscher, who had suffered significant injuries (see Coroner’s Report Exhibit #4) that would not have occurred, but for Tavares’ act; and that Martha Bosscher had been hospitalized when hospitals had been overwhelmed with COVID 19, so that Martha Bosscher’s family could not visit her in her last moments. In short, the Crown submits that Martha Bosscher would not have suffered that dire fate, but for Tavares driving a motor vehicle when he was not supposed to have been in the driver’s seat of a motor vehicle. In addition, the Crown submits that Tavares has a long unenviable driving record which shows a pattern of driving while he had been a suspended driver. Hence, the Crown emphasizes that there has been a significant impact on the victim and the victim’s family and that this is an aggravating factor which is evidenced by the written victim impact statements (Exhibit #2) submitted to the court.
[34] Furthermore, the Crown disagrees with Tavares' legal representative’s depiction of the driving offences that Tavares has been convicted of over the last 15 years, as being only minor offences, and points to two speeding convictions that the Crown contends is not minor. Specifically, The Crown refers to the conviction of Tavares for speeding 140 km/h in a posted 100 km/h zone on March 19, 2013, and speeding 95 km/h in a posted 80 km/h zone on July 10, 2013, when Tavares’s driver’s licence had been suspended, and for operating a motor vehicle without insurance on June 11, 2014. Furthermore, the Crown submits that Tavares also had his driver’s licence suspended for 7 days for a racing/stunt driving conviction on April 2, 2018. Moreover, the Crown also points out that Tavares had been convicted of the speeding offence of 109 km/h in a posted 80 km/h zone on November 20, 2021, while waiting for the disposition of the present case. Ergo, the Crown submits that Tavares has shown no care for the safety of the public while his present charges were pending.
[35] And, in respect to mitigating factors to consider for sentence, the Crown submits there has not been an early guilty plea.
[36] As for the financial circumstances of Jordan Tavares, the Crown submits that Tavares had gotten into his motor vehicle on July 28, 2020, even though he did not have a valid driver’s licence since it had been suspended. Moreover, the Crown rebukes the suggestion from Tavares' partner that Tavares will now take an Uber or public transportation to get to work when he ought to have been doing that before, especially on the date of the collision on July 28, 2020 and on the five occasions when Tavares’ drivers licence had been suspended. If he had been doing that on July 28, 2020, reasons the Crown, then the fateful event of the pedestrian’s death would have been avoided.
[37] Furthermore, in response to the suggestion that Tavares had taken steps to reinstate his driver’s licence by paying off his fines as a repeated pattern, the Crown contends that particular submission is not accurate when Tavares’ driving record is reviewed, as some of the suspensions simply expired, and that while Tavares’s driver’s licence had been suspended, Tavares had collected new driving offences, which then led to another suspension of his driver’s licence. Instead, the Crown submits that Tavares shows a disregard for traffic laws, which led to his licence suspensions. And, even though Tavares had not been convicted prior to the present conviction for “driving while under suspension”, Tavares has nevertheless driven on numerous occasions while his driver’s licence had been under suspension.
[38] And, in response to the submission that the probation officer in the Pre-Sentence Report (Exhibit #1) had commented on Tavares possibly having ADHD, the Crown submits that is not the probation officer’s actual conclusion, since it was only family members who think or believe that Tavares has ADHD. Moreover, the Crown contends that there is nothing presented that supports the conclusion that Tavares has ADHD, since Tavares’ partner also said that Tavares is highly organized in his work, but not with respect to dealing with his driving fines.
[39] As a result, the Crown submits that a jail sentence is warranted based on the “driving while under suspension” conviction, since fines did not deter Tavares from getting behind the wheel of a motor vehicle while Tavares was a suspended driver or committing other driving infractions when his driver’s licence had been suspended. Moreover, the Crown submits that Tavares does not care whatsoever with complying with driving rules. Furthermore, the Crown submits that a six-month jail sentence is suitable based on the fatality and the aggravating factors.
4. RELEVANT EVIDENCE CONSIDERED
(a) Testimony of Feleisha Hanson, the common law partner of Jordan Tavares
[40] Feleisha Hanson testified at the sentencing hearing that she is the common law partner of Jordan Tavares and that they are not legally married. She also said that she has two children, a six-year old son and a two-year old daughter. In addition, she said that her son is from another relationship and that Jordan Tavares is the stepfather to her son. Moreover, Hanson said that her son treats Jordan Tavares as his father.
[41] Furthermore, Hanson testified that Jordan Tavares has his own business and does concrete work, and that he works 12-hour days, seven days a week in the summer, which she indicates is Tavares’ busiest time. She also said that Jordan Tavares has to drive in order to get to work. In addition, she said that she has her own car which she uses to drive to her workplace. Moreover, she said that Tavares is involved with their family and attends all sporting functions involving the children, and is also involved with dropping off and picking up the children.
[42] But more significantly, Hanson said that she relies on his income, even though Hanson said that she and Tavares do split paying for everything such as groceries, rent, and bills. However, she said that Tavares pays more than she does toward their expenses. Hanson also said that she earns about $61,000 annually.
[43] Additionally, Hanson said that Tavares is very independent and is also a motivated and hard worker, who enjoys his work.
[44] Moreover, since the pedestrian collision on July 28, 2020, Hanson said that Tavares has had a hard time sleeping, has night terrors, and has not been his normal self. She also said that Tavares appears to be unmotivated and feels bad about the pedestrian collision, and feels guilt about that event. She further said Tavares has changed a lot and that she has also seen a change in Tavares’ personality, especially in his work.
[45] Furthermore, Hanson said that she does not know how to help him and that Tavares would benefit from talking with someone and needs to see his family doctor or a counsellor. Hanson also said she had discussed this with Tavares and has herself looked into the counselling through her work.
[46] In addition, Hanson said that Tavares is not close to his family, especially not right now.
[47] As to how financial or other potential penalties would affect Tavares, Hanson said that since she works fulltime, she would need him to help with watching their daughter who is still young.
[48] Moreover, Hanson said that she has tried to help Tavares get organized with scheduling things that Tavares has to do and that she has taken steps to write down things that Tavares has to do in a calendar for him. This, she said, has helped him be more on top of things. She also said Tavares tries to do better and has taken steps to be better organized. And, although Tavares is well organized with his work, she said that Tavares needs someone to help him with non-work tasks.
[49] Hanson also said that without a driver’s licence Tavares can take an Uber to get to work, or as they live close to a GO station, Tavares can take a train to get to work downtown. She also said that Tavares will be able to get to his job site and work without a vehicle.
[50] And, when asked how a jail sentence would impact her, Hanson said that a jail sentence would negatively affect his time with the children.
(b) Tavares made a heartfelt apology to the victim’s family who were in the body of the court.
[51] When asked if he wanted to say something to Martha Bosscher’s family who were seated in the courtroom, Tavares stood up in the courtroom and turned to face the family members of Martha Bosscher and told them that he was sorry and did not have words of what to say, and that unfortunately, there is nothing that he could do now and that he cannot undo anything. Tavares also said that he had taken off his shirt after the collision and that his shirt had been put under Martha Bosscher’s head. He also asked them for forgiveness and told them that deep down inside that he is truly sorry.
(c) Background Of Jordan Tavares
[52] On the date of the collision with the pedestrian on July 28, 2020, Jordan Tavares was 29 years old, and on the date of the sentencing hearing of September 12, 2023, Tavares was 32 years old. Tavares is presently in a common law relationship and is the father to two young children. Tavares is also self-employed and has his own concrete business, which he had started when Tavares was 25 to 26 years old, and that his work schedule is busiest during the summer months. In addition, Tavares has been working since he was a young teenager. Tavares and his partner, Feleisha Hanson, do not own but rent their home. In addition, Tavares’ partner testified that Tavares is not that close with his parents. Tavares’ partner also works fulltime, but she said that she needs Tavares’ income to support their family. Furthermore, Tavares’ partner says that Tavares is very much involved with their two children and that Tavares attends all their sporting events and activities. In addition, Tavares’ partner said that Tavares does not seem like his normal self since the collision, has night terrors, and feels guilty about the death of the pedestrian.
(d) The Pre-Sentence Report
[53] The probation officer writes in the P.S.R. (Exhibit #1) at p. 7 that there are no significant areas of concern for Jordan Tavares to address:
This writer is of the opinion that recommendations are not necessary as the information gathered for the Pre-Sentence Report has not revealed any significant areas of concern for the subject to address.
[54] In addition, the probation officer noted at p. 6 of the P.S.R. that Tavares has been in a relationship with his partner for 6-7 years and that both parties had described the relationship as positive. However, the probation officer mentioned that Tavares’ partner had noted that Tavares is not very close to his parents and sister, although Tavares informed the probation officer that he had weekly contact with his parents and bi-weekly contact with his sister, which has recently been less. The probation officer also indicated at p. 6 that Tavares’ sister had been unaware that Tavares had a partner and children.
[55] Furthermore, the probation officer at p. 6 of the P.S.R. indicated that Tavares had informed the probation officer that Tavares had struggled in school growing up and had found it difficult to focus and stay engaged when Tavares was uninterested in the subject matter. Tavares also informed the probation officer that Tavares had left school at the age of 16 and had entered the workforce where he gained experience in multiple construction jobs until Tavares was able to develop his own business in concrete pouring and concrete finishing.
[56] In addition, the probation officer at p. 6 of the P.S.R. noted that Tavares appeared to be extremely remorseful for his actions that lead to the offences that he had been convicted on and that both Tavares’ sister and partner have expressed to the probation officer that Tavares’ mental health has been affected by the two offences committed on July 28, 2020.
(e) Victim Impact Statements From Martha Bosscher’s Sister And Daughter
[57] The court was also provided with type-written victim impact statements from Martha Bosscher’s sister and daughter that were accepted and collectively entered as Exhibit #2. In their statements, Martha Bosscher’s family spoke about their pain and grief and about Martha Bosscher’s loving and generous spirit, and about her being a hardworking individual, being widowed and disabled, and that she would be greatly missed by her family.
(f) Coroner’s Investigation Statement
[58] The Crown submitted a copy of the “Coroner’s Investigation Statement” of coroner Dr. Adriana Krizova, dated August 2, 2020 (Exhibit #4), which indicates that Martha Bosscher’s medical cause of death on August 1, 2020 just before midnight, was the result of “Complications of Blunt Impact Chest Trauma” received when the decedent had been struck by a pickup truck on July 28, 2020, and that it was an accidental death. Furthermore, Dr. Krizova indicates that the decedent had a visible deformity to her left femur, a scalp laceration, rib fractures, a left ilium fracture, and a left femoral fracture.
(g) Relevant Parts of Jordan Tavares’ Driving Record
[59] Since August 27, 2009, and up to the date of Tavares’ Ministry of Transportation of Ontario (M.T.O.) driving record that is dated as of October 3, 2022 (Exhibit #3), Tavares has compiled the following driving record of convictions and suspensions related to driving or operating a motor vehicle in Ontario, as well as the periods of Tavares’ driver’s licence suspensions and offences committed while Tavares’ licence had been invalid or under suspension have also been compiled in the following table:
Date yr/mo./day
D/L suspended
D/L reinstated
days between suspension and reinstatement
dates of period D/L was suspended by MTO
Offence committed while D/L suspended by MTO
date of infraction
Date of Conviction
Type of HTA/CAIA offence committed
Tavares Involved in motor vehicle collision
1
2009/Aug/27
2009/Aug/11
2009/Aug/27
Defective/improper/no muffler
2
2009/Sep/30
SUSP (9167006)
3
2009/Oct/14
reinstated (9167006)
14 days
Sept 30, 2009 to Oct 14, 2009
none in this period
4
2010/Feb/17
2009/July/12
2010/Feb/17
Speeding 79 KMH in 50 KMH zone
5
2010/Aug/25
2010/Feb/11
2010/Aug/25
Defective/improper/no muffler
6
2010/Nov/17
2010/Oct/03
2010/Nov/17
Fail to have insurance card -C.A.I.A.
7
2010/Dec/14
2009/Dec/18
2010/Dec/14
Fail to sign permit in ink
8
2010/Dec/14
2009/Dec/18
2010/Dec/14
Drive Motor/Veh, No currently validated permit
9
2011/Jan/18
SUSP (1009673)
10
2011/Jan/19
reinstated (1009673)
1 day
Jan 18, 2011 to Jan 19, 2011
none in this period
11
2011/Mar/15
SUSP (1047945)
12
2011/Mar/23
2010/Aug/22
2011/Mar/23
No number plate on vehicle
13
2011/Apr/26
reinstated (1047945)
42 days
Mar 15, 2011 to Apr 26, 2011
none in this period
14
2012/Mar/01
Collision: property damage – driving properly
15
2012/Apr/16
2012/Mar/01
2012/Apr/16
Fail to have insurance card -C.A.I.A.
16
2012/Apr/16
2012/Mar/01
2012/Apr/16
Drive Motor/Veh, No currently validated permit
17
2012/May/15
2012/Mar/11
2012/May/15
Permit use of plate not authorized for vehicle
18
2012/June/6
SUSP (2090501)
19
2012/Aug/21
2012/Mar/01
2012/Aug/21
Fail to slow/change lane emergency vehicle
20
2012/Sep/14
reinstated(2090501)
100 days
June 6, 2012 to Sept 14, 2012
yes 4 HTA offences on Sep 4, 2012, Sep 5, 2012, July 24, 2012 (3 drive no licence and 1 speeding offence)
21
2012/Oct/17
SUSP (2169320)
22
2012/Oct/22
2012/Sep/05
2012/Oct/22
No drivers licence or improper class of licence
23
2012/Dec/10
reinstated (2169320)
54 days
Oct 17, 2012 to Dec 10, 2012
none in this period
24
2013/Jan/10
SUSP (3005068)
25
2013/Mar/19
2012/May/11
2013/Mar/19
Speeding 140 KMH in 100 KMH zone
26
2013/Apr/03
ADMIN SUSP (3048449)
expired (3048449)
30 days
April 3, 2013 to May 3, 2013
27
2013/May/14
reinstated (3005068)
124 days
Jan 10, 2013 to May 14, 2013
yes 2 HTA offences on March 26, 2013 (1 drive no licence and 1 fail to have insurance card)
28
2013/June/19
2013/Mar/26
2013/June/19
No drivers licence or improper class of licence
29
2013/June/19
2013/Mar/26
2013/June/19
Fail to have insurance card -C.A.I.A.
30
2013/June/25
2012/July/24
2013/June/25
No drivers licence or improper class of licence
31
2013/July/16
SUSP (3104735)
32
2013/July/16
2012/Sep/04
2013/July/16
No drivers licence or improper class of licence
33
2013/July/16
2012/Sep/04
2013/July/16
Speeding 95 KMH in 80 KMH zone
34
2013/Aug/21
reinstated (3104735)
36 days
July 16, 2013 to Aug 21, 2013
none in this period
35
2013/Sep/05
SUSP (3135638)
36
2013/Oct/24
reinstated (3135638)
49 days
Sep 5, 2013 to Oct 24, 2013
none in this period
37
2014/Feb/21
SUSP (4031029)
38
2014/June/11
reinstated (4031029)
110 days
Feb 21, 2014 to June 11, 2014
yes 2 HTA offences on June 11, 2014 (1 drive no licence and 1 operate MV no insurance)
39
2014/Sep/08
2014/June/11
2014/Sep/08
Operate motor vehicle – no insurance C.A.I.A.
40
2014/Sep/08
2014/June/11
2014/Sep/08
No drivers licence or improper class of licence
41
2015/May/30
Collision: property damage – driving properly
42
2016/June/15
SUSP (6084010)
43
2016/July/27
reinstated (6084010)
42 days
June 15, 2016 to July 27, 2016
none in this period
44
2017/Jan/12
SUSP (7005324)
45
2017/Mar/10
reinstated (7005324)
57 days
Jan 12, 2017 to Mar 10, 2017
none in this period
46
2017/Nov/20
SUSP (7161077)
47
2017/Dec/19
reinstated (7161077)
29 days
Nov 20, 2017 to Dec 19, 2017
none in this period
48
2018/Apr/02
ADMIN SUSP (8756779)
49
2018/Apr/09
expired (8756779)
7 days
Apr 2, 2018 to Apr 9, 2018
none in this period
50
2018/Aug/29
Collision: property damage – driving properly
51
2019/Sep/12
SUSP (9121161)
52
2020/July/28
Collision: fatal injury – fail to yield right of way
53
2020/Aug/19
reinstated (9121161)
342 days
Sep 12, 2019 to Aug 19, 2020
yes 2 HTA offences on July 28, 2020 (1 D.U.S. and 1 fail to yield to pedestrian)
54
2022/Jan/04
2021/Nov/20
2022/Jan/04
Speeding 109 KMH in 80 KMH zone
55
2022/05/28
Collision: property damage – driving properly
[60] As the above table indicates, Jordan Tavares has collected 21 H.T.A. and Compulsory Automobile Insurance Act convictions from August 27, 2009 to January 4, 2022, plus the two additional H.T.A. convictions in the present proceeding. He also has been involved from March 1, 2012 to May 28, 2022, in five motor vehicle collisions, including the present one where he struck a pedestrian legally in a pedestrian crosswalk. Moreover, from September 30, 2009 to September 12, 2019, Tavares’ driver’s licence has been suspended 13 times for unpaid fines and suspended administratively twice for demerit points as a novice driver on April 3, 2013 for 30 days and a seven-day suspension on April 2, 2018 for racing, contest or stunt driving.
[61] The number of days that Tavares’ driver’s licence had been suspended for unpaid fines until the date of the reinstatement of his licence for those 13 suspensions ranged from 1 day to 342 days. Some of the durations were for 100, 110, and 124 days in which Tavares was not legally permitted to drive before he had reinstated his driver’s licence.
[62] In addition, Tavares has been convicted on five occasions of “driving without a valid and current driver’s licence” for offence dates of July 24, 2012, September 4, 2012, September 5, 2012, March 26, 2013, and June 11, 2014.
[63] Furthermore, the Crown was correct in stating that Tavares' legal representative’s description of Tavares’ convicted driving offences being minor had been incorrect, as Tavares’ driving record in Exhibit #3 indicates there have been some major offences that Tavares has been convicted of committing, namely “speeding 140 kp/h in posted 100 kp/h zone” on May 11, 2012, “operate motor vehicle without insurance” on June 11, 2014, and “speeding 109 kp/h in posted 80 kp/h zone" on January 4, 2022. In addition, Tavares has been convicted in the present proceeding of two major driving offences of “fail to yield to pedestrian” and “driving while under suspension”.
[64] As well, Tavares has also been convicted of committing H.T.A. and Compulsory Automobile Insurance Act offences on four occasions (including the conviction in the case at bar) during the periods when his driver’s licence had been suspended by the Ministry of Transportation and it would not be unreasonable to infer that Tavares had been still driving motor vehicles on public highways during those driver’s licence suspensions, considering that Tavares would have needed to drive to his workplace and in operating his concrete business, and also on account of the fact that Tavares had been convicted of committing driving offences that fall within the periods in which his driver’s licence had been under suspension.
5. POTENTIAL PENALTIES THAT COULD BE IMPOSED ON JORDAN TAVARES FOR THE TWO HIGHWAY TRAFFIC ACT CONVICTIONS
(a) “fail to yield to pedestrian” offence under s. 144(7)
[65] The penalty for contravening s. 144(7) (“fail to yield to pedestrian” offence) is set out in s. 144.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. A term of imprisonment is not available as a penalty and only a monetary fine can be imposed as a sentence. Upon conviction for a first offence, the penalty that a sentencing court can impose is a fine of not less than $300 and not more than $1,000, and for each subsequent offence, to a fine of not less than $500 and not more than $1,000:
Penalty for certain offences
144.1(1) Every person convicted of an offence under subsection 140(1), 140(3), 144(7) or 176(3) is liable,
(a) for a first offence, to a fine of not less than $300 and not more than $1,000; and
(b) for each subsequent offence, to a fine of not less than $500 and not more than $1,000.
Same
(2) An offence referred to in subsection (1) committed more than five years after a previous conviction for an offence referred to in that subsection is not a subsequent offence for the purposes of subsection (1).
(b) “driving while under suspension” offence under s. 53(1)
[66] The penalty for “driving while under suspension” is set out in s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides that every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence, and on conviction is liable for a first offence, to a fine of not less than $1,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both, and for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both. In addition, under s. 53(3), the driver’s licence of a person who is convicted of an offence under s. 53(1) or s. 53(1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto [emphasis is mine below]:
Driving while driver’s licence suspended
53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,
(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and
(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,
or to imprisonment for a term of not more than six months, or to both.
Same
(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable,
(a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and
(b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000,
or to imprisonment for a term of not more than six months, or to both.
Subsequent offence
(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1) (b).
Same
(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1) (b).
Licence suspended
(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto.
(c) Probation order under [s. 72](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p33/latest/rso-1990-c-p33.html) of [Provincial Offences Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p33/latest/rso-1990-c-p33.html)
[67] In respect to the imposition of a probation order as a sanction, s. 72 of the Provincial Offences Act, R.S.O. 1990, c. P.33, governs the imposition of probation orders for an offender convicted of a regulatory offence that is commenced by a Part III information and permits the sentencer under s. 72(1)(b) to impose both a fine or a period of imprisonment and a probation order on the offender. Furthermore, where an offender is sentenced to serve a period of probation, the probation order will automatically comprise of three statutory conditions that are set out under s. 72(2), namely: (1) not commit the same or any related or similar offence; (2) appear before the court as and when required; and (3) notify the court of any change in address. In addition, s. 72(3)(c) permits the sentencer to impose additional conditions on the offender in the probation order where imprisonment is available as a punishment, which would be related to the circumstances of the offence and of the defendant that had contributed to the commission of the offence which the sentencer would consider appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant [emphasis is mine below]:
Probation order
72(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission,
(a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order;
(b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or
(c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order.
Statutory conditions of order
(2) A probation order shall be deemed to contain the conditions that,
(a) the defendant 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 appear before the court as and when required; and
(c) the defendant notify the court of any change in the defendant’s address.
Conditions imposed by court
(3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order,
(a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act;
(b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order;
(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or
(d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report.
6. USE OF THE PRE-SENTENCE REPORT IN THE SENTENCING OF REGULATORY OFFENDERS
[68] The use of a Pre-Sentence Report (P.S.R.) is provided for under s. 56(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33:
Pre-sentence report
56(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may direct a probation officer to prepare and file with the court a report in writing relating to the defendant for the purpose of assisting the court in imposing sentence.
[69] In addition, if there is no objection to the negative information within the P.S.R., then a sentencing court may properly take into account negative information about the offender to which no objection was taken, including any drug use, gambling, and lack of remorse, so as to relate the offences to the individual: R. v. Riley, (1996) 1996 NSCA 112, 107 C.C.C. (3d) 278, 150 N.S.R. (2d) 390, [1996] N.S.J. No. 183 (N.S.C.A.).
[70] Moreover, the purpose of a pre-sentence report is to supply to the sentencing court a picture of the offender as a person in society. A probation officer’s recommendation for community supervision only means that he is not unsuitable for community supervision. The probation officer in developing their recommendation does not take into account deterrence and other sentencing objectives that a sentencing court has to consider in finding a fit and suitable sentence for the offender. The probation officer does not determine the appropriate sentence, but prepares a report to assist the sentencing court assess the offender’s background, maturity, behaviour, attitude and willingness to make amends and to better able the court to view the offender as a person with individual characteristics.
[71] Also, a probation officer does not have the mandate to consider factors, which a sentencing court would consider at arriving at a fit sentence, such as general and specific deterrence and denunciation for the offence committed.
[72] The function of a Pre-Sentence Report has also been explained in R. v. Bartkow (1978), 1978 3731 (NS CA), 24 N.S.R. (2d) 518, at para. 10, where the Nova Scotia Supreme Court concluded that a Pre-Sentence Report should be confined to portraying the background, family, education, employment record, physical and mental health, associates, social activities, potential and motivation of the person and that its function is not to tell the court what sentence should be imposed [emphasis is mine below].
I wish those who prepare such reports would realize that it is no part of their job to give any information, whether inculpatory or exculpatory, respecting offences which the accused committed, especially ones for which he has not been convicted. Their function is to supply a picture of the accused as a person in society - his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations. Their function is not to supply evidence of criminal offences or details of a criminal record or to tell the court what sentence should be imposed.
7. THE SENTENCING PRINCIPLES WHICH GOVERN REGULATORY OR PUBLIC WELFARE OFFENCES IN ONTARIO
(A) THE OBJECTIVES AND THE PRINCIPLES OF SENTENCING FOR A REGULATORY OFFENCE
[73] In determining the appropriate sentence to impose on Jordan Tavares for the two H.T.A. convictions, consideration should begin with R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28, in which Lamer C.J.C. for the Supreme Court of Canada, held at para. 82 that the objectives of retribution, deterrence, denunciation, rehabilitation and the protection of society are legitimate objectives of sentencing, and that the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender [emphasis is mine below]:
… it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penal sanction are both "broad and varied". Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.
[74] Moreover, Lamer C.J.C confirmed, at para. 78, in R. v. M.(C.A.), that a majority of the Supreme Court in R. v. Jones (1994), 1994 85 (SCC), 89 C.C.C. (3d) 353, at p. 397, had recognized that the fundamental purpose of sentencing for criminal matters was to preserve the authority of and promote respect for the law through the imposition of just sanctions, which would likewise be an applicable principle for the sentencing of regulatory offences [emphasis is mine below]:
… With these considerations in mind, the Commission explicitly defined the fundamental purpose of sentencing with reference to the normative goal of imposing "just sanctions". As the Commission cast the guiding purpose of criminal sentencing, at p. 153:
In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasis added.]
A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. See R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case).
In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.
(1) What Are The Objectives Of Sentencing For Regulatory Or Public Welfare Offences?
(a) The universal sentencing principles of the criminal law apply equally to the sentencing of regulatory or public welfare offences.
[75] Even though the Provincial Offences Act, R.S.O. 1990, c. P.33, the governing procedural statute for the prosecution of regulatory offences in Ontario, has not expressly set out the principles and objectives of sentencing for regulatory offences like that which has been codified in the Criminal Code under ss. 718, 718.1, and 718.2, Kukurin J. at para. 16 in R. v. Kirk (c.o.b. B.A. Holdings), 2005 ONCJ 352, [2005] O.J. No. 3316 (O.C.J.), has reasoned that, despite this lack of specific statutory guidance in the Provincial Offences Act, a sentence is not chosen arbitrarily from the pool of sentence options available in any particular case. Accordingly, Kukurin J. surmised that an offence created by provincial statute or a federal statute or one that qualifies as a crime under the Criminal Code is subject to universal principles of sentencing that apply to all offences, so that a sentencing court would be bound to apply those universal sentencing principles which are particularly relevant to the nature and circumstances of the offence and to the particular offender [emphasis is mine below]:
The Provincial Offences Act is subdivided into ten parts. Part IV deals with trials and sentencing. There is no provision in the POA that is analogous to section 718, section 718.1 or section 718.2 of the Criminal Code of Canada. … In other words, there is no specific statutory guideline within the POA that directs the court to general purposes and principles of sentencing. Notwithstanding this lack of specific statutory guidance, it is evident that a sentence cannot just be chosen arbitrarily from the pool of sentence options available in any particular case. Whether an offence is created by a provincial statute, or by federal statute or qualifies as a crime under the Criminal Code, it is subject to universal principles of sentencing that apply to all offences. As a sentencing court, the court imposing the sentence on the defendant Kirk was bound to apply those sentencing principles that were relevant. For purposes of this appeal, I adopt section 718, section 718.1 and section 718.2 of the Criminal Code as provisions that have applicability to the offences in this case for which the defendant was convicted, not because the POA specifically imports these by its own terms, but rather because the provisions of these sections have general applicability whether an offence is a crime or is an offence created by a provincial statute.
[76] As such, the sentencing principles set out in s. 718, s. 718.1 and s. 718.2 of the Criminal Code (with amendments to s. 718.2 enacted in the 2019 year) would also apply to the sentencing of an offender who has committed a regulatory offence, since those particular provisions which are based on universal principles of sentencing would have general applicability to all offences.
[77] Furthermore, s. 718 of the Criminal Code of Canada states that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: denunciation, deterrence, separation of the offender from society where necessary, rehabilitation of the offender, reparations to victims and to the community, promoting a sense of responsibility in the offender [emphasis is mine below]:
Purpose and Principles of Sentencing
Purpose
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person, who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[78] Additionally, in the textbook entitled, “Stewart on Provincial Offences Procedure in Ontario (3ed.)”, Toronto, Canada: Earlscourt Legal Press, Inc., 2011, at p. 371, the author reiterated that the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles, but that the common-law and criminal law jurisprudence on sentencing also applies to regulatory or provincial offences. Accordingly, the author indicates that a sentencing court in determining an appropriate sentence for a regulatory offence would have to consider such factors as general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the offender’s record, and an offender’s ability to pay a fine [emphasis is mine below]:
Unlike the Criminal Code, the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles. Instead, common law and criminal law jurisprudence applies. For example, s. 718.1 of the Criminal Code provides that sentencing must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. This principle applies equally to sentencing for a provincial offence.
In addition, to the statutory provisions and sentencing jurisprudence, the court will consider general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the defendant’s record, and ability to pay a fine. …
[79] As a result, the sentencing objectives, as well as the other principles of sentencing set out in ss. 718, 718.1, and 718.2 of the Criminal Code may be taken into account to arrive at a just and fit sentence when sentencing Jordan Tavares in respect to the two H.T.A. offences that he had committed on July 28, 2020.
[80] Moreover, the author in the textbook, “Stewart on Provincial Offences Procedure in Ontario (3ed.)”, at p. 371, also referred to the Supreme Court of Canada’s decision in R. v. Solomon, 2008 SCC 62, [2008] S.C.J. No. 55, where it had been held that the maximum sentence is not always reserved for the worst crime committed in the worst circumstances and that it may be imposed if warranted in light of sentencing principles applied in an individualized context and for the circumstances of the offence that had been committed. The author also emphasized in her textbook that it is the finding of fact at trial that governs the sentencing hearing, since the facts that constitute the essential elements of an offence do not lose their relevance on sentencing and would always be part of the consideration on sentencing [emphasis is mine below]:
Where a fine is imposed, appellate courts generally have declined to vary the sentence on the grounds that a fine is particularly within the discretion of the trial judge and should not be lightly interfered with. In R. v. Solomon, the Supreme Court of Canada rules that the “worst case, worst offender” principle no longer operates as a constraint on the imposition of a maximum sentence or penalty where the maximum would otherwise be appropriate. The maximum sentence is not always reserved for the worst crime committed in the worst circumstances, and it may be imposed if warranted in light of sentencing principles, applied in an individualized context and the circumstances of the offence. The sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. The consequences of the commission of the offence, of themselves, do not elevate an offence to the “worst offence”. A maximum sentence, as with any other sentence, is subject to appellate intervention only where the trial court applied the wrong sentencing principles or the sentence was clearly excessive in the circumstances.
It is the finding of fact at trial that govern the sentencing hearing. The facts that constitute essential elements of an offence do not lose their relevance on sentencing and will always be part of the consideration on sentencing. … An accused must know what he is convicted of when making submissions on sentencing and only needs to make submissions based on the facts as found by the trial justice.
[81] And, similar to provisions in the Provincial Offences Act, ss. 723(1) and (2) of the Criminal Code, stipulates that the sentencing court for a criminal offence is required before determining the appropriate sentence to give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. As well, the sentencing court is also required to hear any relevant evidence presented by the prosecutor or the offender:
Submissions on facts
723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.
Submission of evidence
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
[82] In addition, under s. 724(1) of the Criminal Code, in regard to determining the appropriate sentence, the sentencing court for a criminal offence may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender:
Information accepted
724(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) The Category Or Nature Of The Offences Committed By Jordan Tavares.
[83] In respect to the nature of the two regulatory offences that Jordan Tavares had been convicted of committing, the two offences are strict liability regulatory offences in which the fault element is negligence, and which only legally requires the prosecution having to prove the actus reus element of the offence beyond a reasonable doubt, but does not legally require the prosecution to having to prove any mens rea element for that offence.
[84] In addition, in R. v. Chan, 2012 ABPC 272, [2012] A.J. No. 1023 (Alta. Prov. Ct.), at paras. 32 and 33, Fradsham J. neatly summarized the sentencing objectives for regulatory offences and also noted that the objective of regulatory legislation is to protect the public or broad segments of the public from the potentially adverse effects of otherwise lawful activity, and that regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests, and that regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, and that regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. And, where regulatory offences involve a greater degree of moral blameworthiness on the part of the offender, Fradsham J. emphasized that the penalties imposed should reflect that greater moral blameworthiness. However, Fradsham J. also pointed out that in the case of little or no actual harm arising from the offence, the penalty for the violation may still be substantial, so as to deter others from violating the statute because the consequence of a future violation could be very serious. And, as a result, Fradsham J. concluded that sentences for regulatory offences must also take into account the potential consequences of committing the particular offence [emphasis is mine below]:
In the case at bar, the sentencing objectives which apply are: (1) to denounce unlawful conduct; (2) to deter Mr. Chan and other persons from committing offences; (3) to assist in rehabilitating the offender; (4) to provide reparation for harm done to the community; and (5) to promote a sense of responsibility in the offender, and acknowledgment of the harm done to the community. The primary sentencing objectives are denunciation and deterrence, followed by rehabilitation of the offender (including the promotion in him of a sense of responsibility for his offending behaviour). The restitution orders sought by the Crown, and not opposed by Mr. Chan, will address the objective of providing reparation for the harm done.
In concluding that general deterrence is one of the primary sentencing objectives, I am mindful that the offences to which Mr. Chan has pleaded guilty are regulatory offences. In R. v. Kreft (2006), 2006 ABPC 258, 407 A.R. 376, I had occasion to discuss the jurisprudence on the sentencing of regulatory offences. I continue to be of the view I set forth in paragraph 47 of Kreft:
47 In my view, the jurisprudence, including the cases of R. v. Wholesale Travel Group Inc., supra, 1991 39 (SCC), [1991] S.C.J. No. 79, R. v. Beach Motors Inc., supra, [2002] O.J. No. 4458 R. v. Virk., supra, [2002] O.J. No. 4102 and R. v Kirk (c.o.b B.A. Holdings), supra, 2005 ONCJ 352, [2005] O.J. No. 3316, when read together, lead to these conclusions:
- One starts with the general proposition that:
"[t]he objective of regulatory legislation is to protect the public or broad segments of the public ... from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
... [R]egulatory offences are directed primarily not to conduct itself but to the consequences of conduct. ... The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care" (R. v. Wholesale Travel Group Inc., supra).
However, regulatory offences form a continuum ranging from the less serious to the very serious. As one approaches the "very serious" end of the continuum, one is dealing with offences which are designed to address "inherently wrongful conduct" and for which there is a greater degree of moral blameworthiness on the part of the offending defendant. Those regulatory offences which "if not a species in the family of fraudulent conduct are a close cousin" are examples of regulatory offences which involve a greater degree of moral blameworthiness on the part of the offender, and the penalties for them will reflect that.
Having said that, regulatory offences which do not involve inherently wrongful conduct (with its attendant moral blameworthiness) can still attract significant penalties. Regulatory legislation has as its goal adherence to a particular standard of care by those involved in the regulated activity, and the severity of the consequences of a failure to meet the legislated standard of care will vary with the regulated activity involved and nature of the failure. A defendant who commits an offence under a regulatory statute may cause little, if any, actual damage as a result of his or her particular actions. In other words, the acts of the defendant, while violating a provision of a regulatory statute, may not in a particular case result in any significant actual harm. However, the provision of the regulatory statute which the defendant violated may be such that violations of it in general have the potential to cause serious harm to the public. Therefore, in the case of little, or no, actual harm arising from the offence, the penalty for the violation may still be substantial so as to deter others from violating the statute because the consequence of a future violation could be very serious. As noted earlier, regulatory offences are directed at the consequences of failing to abide by the legislated standards of care, not at the actual actions which constituted the violation. "Consequences" include not only actual harm resulting from the specific actions which constituted the offence, but also that which could potentially result from the commission of the offence. Sentences for regulatory offences must similarly take into account the potential consequences of committing the particular offence. Examples of this concept are often found in environmental law sentencing cases such as R. v. Van Waters & Rogers Ltd. (1998) 1998 ABPC 55, 220 A.R. 315 (Alta. Prov. Ct.) and R. v. Terroco Industries Ltd. (2005) 2005 ABCA 141, 367 A.R. 1 (Alta. C.A.).
[85] Moreover, Madigan J.P. in R. v. Virk, [2002] O.J. No. 4102 (O.C.J.), at paras. 52 to 56, had considered the sentencing scheme for regulatory offences and had noted a different approach and application of sentencing objectives in the sentencing of regulatory offences in comparison to criminal offences. Madigan J.P. had also confirmed that absolute or strict liability offences do not involve moral blameworthiness, and that for absolute or strict liability offences the rehabilitation of the offender and public protection become more important in sentencing. On the other hand, Madigan J.P. noted that in respect to the continuum of offences, as a regulatory offence approaches or becomes more like a criminal offence where there is an element of mens rea or moral blameworthiness, then the objectives of denunciation, retribution and deterrence gain more importance in sentencing [emphasis is mine below]:
R. v. Wholesale Travel Group Inc. (1991) 1991 39 (SCC), 67 C.C.C. (3d) 193 (S.C.C.) is authoritative caselaw in which the Supreme Court of Canada addresses the distinction between regulatory offences and criminal offences at pages 237-238. To paraphrase Justice Cory, criminal law is intended to punish “inherently wrongful conduct”, whereas regulatory offences are aimed at enforcement of “prescribed standards of care” which society wishes to establish and promote. Further, public welfare offences are “directed not to conduct itself but to the consequences of conduct” and do not imply “moral blameworthiness” in the same manner as criminal fault.
Most public welfare offences are properly classified as either absolute liability or strict liability offences. Very few regulatory offences require the Crown to prove wrongful intention or knowledge in addition to the prohibited conduct.
Not all public welfare offences are equal in gravity. Some are more serious than others. Those requiring proof of wrongful intention or knowledge are more serious, for sentencing purposes, precisely because the prosecution has proven a guilty mind in addition to the prohibited conduct. Convictions for absolute liability and strict liability offences usually suggest “…nothing more than the defendant has failed to meet a prescribed standard of care”. However, offences like those alleged and proven in this case tend to involve an element of fault or moral blameworthiness in that they prohibit conduct which is inherently wrong. Quite undeniably, the intention to defraud and the intention to lie qualify as morally blameworthy.
On a continuum of offences running from public welfare offences to true criminal offences, the offences of which Mr. Virk has been found guilty are much more serious and therefore more comparable to criminal offences than to public welfare offences. Obviously, this has significance for sentencing.
In the case of most regulatory offences, the sentencing court usually attempts to balance the competing considerations in favour of rehabilitation of the offender and protection of the public. However, in cases involving proof of mens rea, the balance must favour the objectives of denunciation, retribution, and deterrence. Whereas mens rea offences involve some degree of moral blameworthiness or fault, absolute liability and strict liability offences do not. This distinction justifies the difference in approach to sentencing.
[86] But more importantly, Cory J. in R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] S.C.J. No. 79 (S.C.C.), at para. 219, emphasized that regulatory schemes can only be effective if they provide for significant penalties in the event of their breach [emphasis is mine below]:
Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to the potential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes.
(3) Deterrence Must Be Given Paramount Consideration In Arriving At A Fit And Just Sentence For Public Welfare Offences
[87] In R. v. Cotton Felts Ltd. (1982), 1982 3695 (ON CA), 2 C.C.C. (3d) 287, [1982] O.J. No. 178, which is the prevailing case for sentencing of regulatory offences in Ontario, Blair J.A. for the Court of Appeal for Ontario, at paras. 18 to 24, established that the primary factor for a sentencing court to consider in determining the appropriate sentence for public welfare or regulatory offences is deterrence. And, in respect to the imposition of a fine for deterrence, Blair J.A. held that the fine must be substantial enough to warn others that the offence will not be tolerated, but without being harsh, and that the fine must also not appear to be a mere licence fee for illegal activity [emphasis is mine below]:
Since, as far as we are aware, this is the first appeal against sentence under the Act to reach this Court, it is incumbent on us to consider the proper principles governing the imposition of fines for this type of offence. As my brothers and myself made clear during argument, the range of fines imposed by the County Court appears inordinately low for these offences. It is recognized that in the circumstances of particular cases such fines might have been justified, but it would be error for any sentencing judge to accept these County Court appeal decisions as establishing a binding range of fines in these cases. Sentencing for this type of offence cannot be achieved by rote or by rule. In every case it is the responsibility of the sentencing judge to impose a fit sentence, taking into account the factors upon which I now propose to comment.
The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: see R. v. Ford Motor Company of Canada Limited (1979), 1979 2838 (ON CA), 49 C.C.C. (2d) 1, per MacKinnon A.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited.
The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. An example is provided by R. v. Hoffman-LaRoche Limited (No.2) (1980), 1980 1915 (ON SC), 30 O.R. (2d) 461. In that case Mr. Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act, R.S.C. 1970, c. C-23, and stated the principles governing the amount of a fine as follows:
In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case. The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similar criminal activity that It will be costly for them to do so even if they do not succeed in their illegal aims.
The sentence was upheld by this Court, (1981), 1981 210 (SCC), 62 C.C.C. (2d) 1, where my brother Martin said at pp. 160-161:
A careful examination of those reasons satisfies me that he considered that general deterrence was the paramount factor to be considered in arriving at an appropriate sentence.
Another example is provided by this Court's decision in R. v. K-Mart Canada Limited (1982), 1982 3811 (ON CA), 66 C.C.C. (2d) 329. In that case the Court increased a fine of $25,000 to $100,000 for a company convicted of conspiring to interfere with the formation and operation of a trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. In so doing Chief Justice Howland had this to say at p. 332:
In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not be tantamount to a licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will not be tolerated.
The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper. Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.
With reference to these offences, deterrence is not to be taken only In its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, a judgment pronounced on November 17, 1982, referred to deterrence in a more positive aspect. There he was dealing with a driving offence and he quoted an earlier unreported decision of this Court in R. v. Roussy, [1977] O.J. No. 1208 (released December 15, 1977), where the Court stated:
But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.
(4) The Sentence Must Be Proportional
[88] In R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28, at para. 40, Lamer C.J.C., for the Supreme Court of Canada, had also emphasized that the fundamental sentencing principle in respect to the quantum of sentence to be imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender [emphasis is mine below]:
… It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.
[89] Furthermore, in R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 (S.C.C.), Charron J., at para. 22, noted that the fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, so that the sentence imposed in such a case would be merely a reflection of the individualized sentencing process [emphasis is mine below]
… The fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. This principle, which is set out in s. 718.1 Cr. C., assures repeat offenders the right not to be “punished . . . again”, as guaranteed in s. 11(h) of the Charter. The sentence imposed on a repeat offender may well be more severe, but this is not contrary to the offender’s right not to be punished again. From the standpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process.
[90] Recently, Paciocco J.A. for the Court of Appeal for Ontario in Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30, [2019] O.J. No. 227, at paras. 62 to 73, reaffirmed the sentencing principles established for regulatory or public welfare offences established by the Court of Appeal for Ontario in R. v. Cotton Felts Ltd. Paciocco J.A. also emphasized in the New Mex Canada Inc. decision that Blair J.A. in Cotton Felts, at p. 295, had indicated that deterrence performs a broader role in regulatory offences than its conventional role in criminal offences, and that regulatory sentencing plays the double role of not only deterring by threat of punishment, but also of communicating condemnation for the moral wrong in acting contrary to the public good. Moreover, Paciocco J.A. noted that the criminal law recognizes a loose continuum of moral blameworthiness that can affect the sentence imposed and that this underlying notion that those with guiltier minds tend to deserve or require greater punishment applies equally to regulatory offences. Accordingly, Paciocco J.A. noted that moral blameworthiness is relevant in sentencing for regulatory offences and follows necessarily from the application of the fundamental sentencing principle of proportionality in the sentencing of regulatory offences. In addition, Paciocco J.A. emphasized that the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present. On the other hand, Paciocco J.A. noted that where the moral blameworthiness of a particular offender increases so too can the penalty that is imposed [emphasis is mine below]:
Without question, despite their public policy focus regulatory offences often have a moral dimension. In Cotton Felts, at p. 295, Blair J.A. invoked this moral dimension when explaining how deterrence performs a broader role in regulatory offences than its conventional role in criminal offences. Specifically, since the moral wrong in causing public harm by regulatory offending may be less obvious than the inherent wrong in committing crimes, regulatory sentencing plays the double role of not only deterring by threat of punishment, but also of communicating condemnation for the moral wrong in acting contrary to the public good. In making this point, Blair J.A. quoted from an earlier decision of this court, R. v. Roussy, [1977] O.J. No. 1208 (C.A.):
A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
It is also uncontestable that the moral dimension of regulatory offences varies. In R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1325-26, Dickson J. (as he then was) identified three general categories of offences: (1) subjective fault offences "consisting of some positive state of mind such as intent, knowledge, or recklessness"; (2) strict liability, or negligence based offences that punish an absence of reasonable care or due diligence;3 and (3) offences of "absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault." As Dickson J. explained, there are regulatory offences that fall into each of these categories.
For its part, the criminal law recognizes a loose continuum of moral blameworthiness according to these categories that can affect the sentence imposed. The underlying notion is that those with guiltier minds tend to deserve or require greater punishment. This same principle applies to regulatory offences.
This is reflected in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at pp. 515-16, where the Supreme Court of Canada held that it is not constitutionally permissible to incarcerate regulatory offenders for absolute liability offences, where the mere performance of the act is enough for conviction, without subjective mens rea or negligence. The reason for this is that absolute liability does not carry moral blameworthiness to warrant the imposition of incarceration. In contrast, subjective fault and negligence based offences carry sufficient moral blameworthiness to make incarceration appropriate, depending on the circumstances. As Cory J. said in Wholesale Travel, at p. 238, "[i]t should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability."
In my view, the relevance of moral blameworthiness in sentencing for regulatory offences follows necessarily from the application in regulatory offences of the fundamental sentencing principle of proportionality.
Simply put, the principle of proportionality requires that there be "just proportion" between the offence and the sentence: R. v. Wilmott 1966 222 (ON CA), [1967] 1 C.C.C. 171 (Ont. C.A.), at p. 179. More precisely, it holds that a "sentence must be 'proportionate to both the gravity of the offence and the degree of responsibility of the offender": R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 21.
The applicability of this principle to sentencing for regulatory offences is clear. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, LeBel J. called proportionality "the sine qua non of a just sanction". To similar effect, in the regulatory offence case of Re B.C. Motor Vehicle Act, Wilson J. stated, at p. 533: "It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a 'fit' sentence proportionate to the seriousness of the offence." Not surprisingly, this sine qua non of just punishment is a central consideration when sentencing regulatory offenders where the penalty is not fixed: see, for example, R. v. Nova Scotia Power Inc., 2008 NSPC 72, 271 N.S.R. (2d) 341, at para. 33, and Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., 2013 ONCJ 128, at paras. 18-19.
The principle of proportionality, in turn, necessarily invites considerations of moral blameworthiness. This is because moral blameworthiness is one of the primary variables relied on to identify the degree of responsibility of the offender and hence the proportionality of the sentence imposed. So much so that in R. v. M. (C.A.), at para. 79, Lamer C.J. stated that it is this "element of 'moral blameworthiness' which animates the determination of the appropriate quantum of punishment for a convicted offender as a just sanction".
The normative appeal of this proposition can be seen in this case. Ironically, despite endorsing the erroneous proposition from Di Franco, the appeal judge correctly accepted that incarceration is more appropriate where an offender has acted wilfully or is a repeat offender. These are moral blameworthiness considerations that may properly influence the sentence imposed.
It is important to appreciate that, despite its application, moral blameworthiness does not operate the same way in sentencing regulatory offenders, as it does in sentencing criminal offenders. This is because regulatory offences tend to reflect lower levels of moral blameworthiness. In Sault Ste. Marie, at pp. 1324-26, Dickson J. (as he then was) observed that although some regulatory offences require subjective mens rea such as wilfulness or knowledge, regulatory offences are presumed to be strict liability offences that, while employing a reverse onus, penalize the absence of due diligence or reasonable care. In other words, strict liability offences are presumed to be negligence based offences. In Wholesale Travel, Cory J. cautioned, at p. 219, that regulatory offences based on a standard of reasonable care do not "imply moral blameworthiness in the same manner as criminal fault" (emphasis added).
This point is reflected in R. v. Metron Construction Corporation, 2013 ONCA 541, 309 O.A.C. 355. There, the sentencing judge relied upon OHSA sentences to determine an appropriate sentence for the crime of criminal negligence. It was not wrong for him to consider the OHSA sentences. His error was in failing to appreciate that criminal negligence offences carry a "higher degree of moral blameworthiness and gravity" than OHSA offences. In other words, while both kinds of offences reflect moral blameworthiness, the moral blameworthiness in criminal offences tends to be greater, and that difference must be respected when imposing sentences.
To be clear, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present. After all, by design, most regulatory offences can be committed by mere negligence, and some are absolute liability offences imposing punishment even in the absence of moral blameworthiness. The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.
[91] Additionally, Paciocco J.A. in Ontario (Ministry of Labour) v. New Mex Canada Inc., at paras. 97 to 105, commented on the principle of deterrence in the sentencing of regulatory offences and noted that a fit sentence does not rest only on whether that sentence would be an effective deterrent, but involves a careful examination of the circumstances of the offence and the offender, and a determination of what a fair and effective sentence would be in those circumstances. Moreover, Paciocco J.A. indicated that the impact of the fine on the offender is an important consideration in identifying a fit deterrent sentence and that the deterrent sentence should be harsh enough, in all of the circumstances, to be proportional to the harm, but not so harsh as to be disproportionate to the harm. In addition, Paciocco J.A. surmised that the fitness of a fine can be determined essentially by asking, "What amount of fine is required to achieve general and specific deterrence and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity [emphasis is mine below]:
To be sure, the sentencing justice was right in identifying "deterrence" as the paramount sentencing objective. However, the question of a fit sentence does not rest only on whether that sentence would be an effective deterrent. The inquiry is more subtle, involving a careful examination of the circumstances of the offence and the offender, and a determination of what a fair and effective sentence would be in those circumstances. The factors identified by Blair J.A. in Cotton Felts at p. 294 are helpful.
The first two of the five main Cotton Felts factors address offender based considerations: (1) "the size of the company involved"; and (2) "the scope of the economic activity in issue". As I will explain below, the impact of the fine on the company is an important consideration in identifying a fit deterrent sentence.
Justice Blair then identified an important proportionality or fairness consideration: (3) "the extent of actual and potential harm to the public". The message is that the deterrent sentence should be harsh enough, in all of the circumstances, to be proportional to the harm, but not so harsh as to be disproportionate to the harm.
Justice Blair then turned his attention to: (4) "the maximum penalty prescribed by statute." A fit deterrent sentence is situated properly on the continuum, within the permissible sentencing range.
Only after the context is determined in this way does Blair J.A. pose for consideration: (5) "the need to enforce regulatory standards by deterrence".
In my view, the fitness of an OHSA fine, and hence the demonstrable unfitness of a sentence of a fine, can be determined essentially by asking: "What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity?" The answer to that question in this case does not remotely support a $250,000 fine.
I have no difficulty here with the proportionality of the cumulative $250,000 fine to the offence that occurred, even considering that coupled with the victim surcharge the total amount that must be paid is approximately $312,500. A man died in truly outrageous circumstances, working for a corporation that demonstrated complete disinterest in complying with its legal obligations to protect worker safety, in the absence of significant mitigating circumstances. In a different case, depending on the offender, a fine many times this level could survive a proportionality challenge for an incident as reprehensible as the one in which Mr. Singh died.
The concerns I have here are with the principle of parity, and, to an even greater extent, with the quantum of fine required to achieve the objectives of general and specific deterrence in this case.
In terms of the principle of parity, the Crown conceded before the appeal judge and before us that this fine was "very, very high" relative to fines imposed on similarly situated defendants in similar cases. Before the sentencing justice, the Crown sought a minimum fine in the amount of $100,000. The Crown suggested that the fine amount could rise, depending on New Mex's financial circumstances. Yet the sentencing justice imposed a fine two and one-half times that amount on a small, financially-weak company. The Crown's sentencing position was, in my view, sensitive to the fines imposed on similarly situated offenders in similar cases. The $250,000 fine imposed was not.
(5) The Parity Principle
[92] For the principle of parity, a sentencing court is required to impose a sentence, if possible, that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This traditional principle of sentencing has been codified in s. 718.2(b) of the Criminal Code and adopted for regulatory offences in R. v. Kirk (No. 1), [2005] O.J. No. 3316, 2005 ONCJ 352 (O.C.J.), at para. 16.
[93] For the case at bar, Tavares' legal representative argues that it would be a rarity for a sentencing court to impose a jail sentence for a first-time offender convicted of the offence of “driving while under suspension”. However, no similar sentencing cases have been submitted to the court to consider the application of the parity principle. And, even though the Crown submitted the case of R. v. Hopkins, [2005] O.J. No. 6063 (Ont. C.J.), in which the offender had received a sentence of imprisonment, the offender Hopkins had prior convictions of “driving while under suspension”, which factually do not have similar circumstances to the case at bar. Therefore, the Hopkins case will not assist this court in the application of the parity principle.
(6) The Sentence Must Not Contravene The Totality Principle
[94] Moreover, to determine a fit and appropriate sentence, the sentencer must also consider the totality principle. The Supreme Court in R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28, at para. 42, explained that the totality principle requires a sentencing judge, who orders an offender to serve consecutive sentences for multiple offences, ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender [emphasis is mine below]:
In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".
Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:
The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.
[95] Furthermore, s. 718.2(c) of the Criminal Code of Canada sets out and provides for the application of the totality principle by expressly stating that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. Hence, this provision ensures that a sentencing court would "avoid sentences that cumulatively are out of proportion to the gravity of the offences": R. v. D.F.P., 2005 NLCA 31, [2005] N.J. No. 176 (N.L.C.A.), at para. 24. Moreover, the totality principle requires a Canadian court to fashion a global sentence in respect to all offences so that it is not excessive: R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J. No. 28 (S.C.C.), at para 42. In other words, if the total sentence is excessive the court must adjust the sentence so that the "total sentence is proper": R. v. D.S.K., 2005 SKCA 18, [2005] S.J. No. 97 (Sask. C.A.) and R. v. Hicks, 2007 NLCA 41, [2007] N.J. No. 219 (N.L.C.A.).
[96] Ergo, a sentence may violate the totality principle where: (1) the global sentence considerably exceeds the "normal" level of the most serious of the individual offences: R. v. E.T.P., [2002] M.J. No. 64 (Man C.A.); or where: (2) the global sentence "exceeds what is appropriate given the offender's overall culpability: R. v. Wharry, 2008 ABCA 293, [2008] A.J. No. 945 (Alta. C.A.), at para. 35; R. v. Abrosimo, 2007 BCCA 406, [2007] B.C.J. No. 1700 (B.C.C.A.), at paras. 20 to 31; and R. v. Tiegs, 2012 ABCA 116, [2012] A.J. No. 378 (Alta. C.A.).
(7) The Principle Of Restraint
[97] For the principle of restraint, Clayton Ruby in his tome entitled, "Sentencing (10th Ed.)" (Toronto, Canada: LexisNexis Canada Inc., 2020), at Chapter 13, section 13.10 and 13.11, explained that the common law principle of restraint required that even if imprisonment is needed to be imposed on an offender, that it should be the lightest possible in the circumstances and that this common law principle is now codified in s. 718.2 of the Criminal Code. Furthermore, Ruby indicated that s. 718 reflects the stated policy of the government that imprisonment should be used as a last resort and that directions in the Criminal Code to use other sanctions other than imposing imprisonment as a sentence have been carefully qualified and should be restricted to cases that are “appropriated in the circumstances” and to sanctions other than imprisonment that are “reasonable in the circumstances”. In addition, Ruby concludes that because of the codification of the principle of restraint in the Criminal Code, the sentencing court must now consider the principle of restraint as a sentencing principle that is equal to the other sentencing principles set out in the Criminal Code [emphasis is mine below]:
The common law principle requires that even if imprisonment need be imposed, it should be the lightest possible in the circumstances. The common law shortcomings of incarceration was codified in section 718.2 …
Section 718 of the Criminal Code indicates an intention of Parliament to make a significant change to the principles of sentencing to reflect a series of commissions of inquiry and the stated policy of the government that imprisonment should be use as a last resort. It is important to note that the directions to use sanctions other than imprisonment are carefully qualified by being restricted to cases where they were “appropriated in the circumstances” and to sanctions that were “reasonable in the circumstances”. Courts must now consider the principle of restraint as a sentencing principle equal to the others set out in the Criminal Code. There is a clear intention on the part of Parliament to reduce institutional incarceration and to adopt the principle of restraint. …
(8) For Disputed Facts In A Sentencing Hearing, Evidence Must Be Called In Respect To That Disputed Fact.
[98] In R. v. Gardiner, 1982 30 (SCC), [1982] S.C.J. No. 71 (S.C.C.), Dickson J. held that any facts relied upon by the Crown in aggravation must be established by the Crown beyond a reasonable doubt. Moreover, Dickson J. emphasized that where the facts are contested, the issue should be resolved by ordinary legal principles governing criminal proceedings, including resolving relevant doubt in favour of the offender. But, more importantly, Dickson J. held that facts which justify the sanction are no less important than the facts which justify the conviction, so that both should be subject to the same burden of proof. In addition, he confirmed that the sentencing process is merely a phase of the trial process, so that upon conviction the offender is not abruptly deprived of all procedural rights existing at trial [emphasis is mine below]:
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.
To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. “It would appear well established that the sentencing process is merely a phase of the trial process” (Olah, supra, at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.
In S. v. Manchester City Recorder, [1969] 3 All E.R. 1230 the suggestion was made that a court might be functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence. Lord Reid found this proposition to be both novel and erroneous, adding at p. 1233:
In my judgment magistrates have only one officium—to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins.
In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.
[B]ecause the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process [Olah, supra, at p. 121].
The rationale of the argument of the Crown for the acceptance of a lesser standard of proof is administrative efficiency. In my view, however, the administrative efficiency argument is not sufficient to overcome such a basic tenet suffusing our entire criminal justice system as the standard of proof beyond a reasonable doubt. I am by no means convinced that if the standard of proof were lowered, conservation of judicial resources would be enhanced. In the event of a serious dispute as to facts, it would be in the interests of the accused to plead not guilty in order to benefit at trial from the higher standard of reasonable doubt. This would not only be destructive of judicial economy but at the same time prejudicial to whatever mitigating effect might have come from a guilty plea, as evidence of remorse. There would seem in principle no good reason why the sentencing judge in deciding disputed facts should not observe the same evidentiary standards as we demand of juries. In R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525 Pigeon J., dealing with an issue involving conviction, observed (at p. 550):
In my view, there are in our criminal law only three standards of evidence:
Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;
Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;
Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.
The civil test only comes into play when the accused has to meet a presumption and it operates in favour of the accused.
I can see no good purpose served by the alternate Crown submission, namely, the adoption of a third standard of proof, “clear and convincing” evidence, in Canadian law. I agree with the remarks of Lord Tucker in Dingwall v. J. Wharton (Shipping), Ltd., [1961] 2 Lloyd’s Rep. 213 at p. 216:
…I am quite unable to accede to the proposition that there is some intermediate onus between that which is required in criminal cases and the balance of probability which is sufficient in timeous civil actions.
In conclusion, I see no justification for the introduction of the complexity and confusion which would inevitably follow upon the acceptance of standards of proof varying from trial to sentence.
8. APPLYING THE SENTENCING OBJECTIVES AND PRINCIPLES TO JORDAN TAVARES AND HIS CIRCUMSTANCES
[99] To arrive at a fit and just sentence for Jordan Tavares, this sentencing court must adhere to Lamer C.J.C.’s guidance in R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at p. 370, where he wrote that the principal duty of a sentencing judge is to apply the established principles of sentencing in determining a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender:
the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a ``just and appropriate'' sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.
[100] In addition, the Court of Appeal for Ontario in R. v. Cotton Felts Ltd. (1982), 1982 3695 (ON CA), 2 C.C.C. (3d) 287, at p. 295, established deterrence as the paramount consideration for deciding a fit sentence for a public welfare or regulatory offence. Hence, as a sentencing objective, deterrence furthers the aim of public welfare legislation to protect the physical, economic and social welfare of the public, which is essential for the proper functioning of society [emphasis is mine below]:
deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, a judgment pronounced on November 17, 1982 [since reported 1982 3694 (ON CA), 2 C.C.C. (3d) 247], referred to deterrence in a more positive aspect. There he was dealing with a driving offence and he quoted an earlier unreported decision of this court in R. v. Roussy, unreported, released December 15, 1977 [summarized 2 W.C.B. 72], where the court stated:
But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.
[101] Moreover, not only must the sanction used to achieve particular goals of sentencing be just, the sentencing process itself must also enjoy the acceptance and respect of the community at large: R. v. Sweeney (1992), 1992 4030 (BC CA), 71 C.C.C. (3d) 82, 11 C.R. (4th) 1 (B.C.C.A.), at p. 96 of 71 C.C.C. (3d) 82:
That purpose is achieved if the imposition of legal sanctions discourages both convicted offenders from re-offending and those who have yet to offend from doing so at all. Overlying and influencing the ability of the legal sanction or sentencing process to achieve this purpose, however, is the extent to which that process enjoys the acceptance and respect of the community at large.
[102] Additionally, and if possible, there should be adherence to the principle of parity, which requires a sentencing court to impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This traditional principle of sentencing has been codified in s. 718.2(b) of the Criminal Code and adopted for regulatory offences in R. v. Kirk (No. 1), [2005] O.J. No. 3316, 2005 ONCJ 352 (O.C.J.), at para. 16.
[103] Therefore, a fit sentence should be proportional to the gravity of the offence and the degree of responsibility of the offender: R. v. M(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.).
9. THE APPROPRIATE SENTENCE FOR JORDAN TAVARES
(A) THE SENTENCE SOUGHT BY THE PROSECUTION
[104] To reiterate, the prosecution seeks the following penalties for Jordan Tavares for the two H.T.A. convictions:
(1) a fine of $500 (exclusive of costs and victim fine surcharges) for the “fail to yield to pedestrian conviction;
(2) a period of imprisonment of 6 months for the “driving while under suspension” conviction;
(3) a term of probation for a period of 12 months with the statutory conditions set out in the Provincial Offences Act, especially the condition not to commit the same offence; and a conditions to not drive or operate any motor vehicle, to not be in the driver’s seat of any motor vehicle, and to not possess any keys or ignition devices to any motor vehicle for the “driving while under suspension” conviction;
(B) SUBMISSIONS ON SENTENCE MADE ON BEHALF OF THE OFFENDER, JORDAN TAVARES
[105] For the “driving while under suspension” conviction, Tavares' legal representative has argued that a sentence of imprisonment is not appropriate for Jordan Tavares for a first conviction, since the driving conduct, although negligent, was not egregious or intentional, as Tavares had stopped his pickup truck before commencing the right turn and colliding with the pedestrian. Instead, Tavares' legal representative submits that Tavares should only be sentenced to fines and a probation order for the two offences, since Tavares’ driver’s licence has been reinstated and that Tavares has paid off all his fines.
[106] Moreover, in respect to the quantum of fines that should be imposed on Tavares, Tavares' legal representative submits that Jordan Tavares and his family would also suffer economically from the automatic suspension of Tavares’ driver’s licence for 6 months, since Tavares had been using his motor vehicle to travel to his work place as a self-employed concrete worker, and that any fine that would be imposed on Tavares would be substantial and would, therefore, negatively affect Tavares and his family from paying all their bills.
(C) SHOULD JORDAN TAVARES BE SENTENCED TO PAY A FINE FOR EACH OF THE TWO H.T.A. CONVICTIONS?
[107] To reiterate, the prosecution seeks a fine of $500 (exclusive of courts costs and victim surcharge) for only the “fail to yield to pedestrian” conviction under s. 144(7) that the offender, Jordan Tavares, has been convicted of committing. However, the Crown is not seeking a fine as a penalty for the “driving while under suspension” conviction under s. 53(1), but a term of imprisonment and a period of probation because of aggravating circumstances.
[108] In respect to determining the appropriate fine for each of the two regulatory offences committed by Jordan Tavares, the general principles for imposing fines has been summarized by Clayton Ruby in his textbook, “Sentencing (10th Ed.)” (Toronto, Canada: LexisNexis Canada Inc., 2020), at Chapter 11, sections 11.2, 11.5, 11.8, 11.9, 11.10, 11.11, and 11.12, and includes the notion that an offender should not gain from their wrongdoing; that the amount of the fine must not be excessive; that the amount of the fine should reflect the offence only and not extraneous factors; that the amount of the fine must be applied without reference to the wealth of the offender; and that the imposition of a fine must not be seen as licence to commit the offence [emphasis is mine below]:
… The most important decision to be made is whether a fine or imprisonment is the appropriate sentence. That should be done by assessing the gravity of the offence and the nature of the offender, and without regard to the means of the offender at that stage. Once that decision has been taken, if the decision is that a monetary penalty is appropriate, then the means of the offender enter into the reckoning and are of critical importance. In this context, section 740 of the Criminal Code requires that, when the assessment of means is made, restitution is to have priority over fines.
Despite the advantages of the fine as a penalty instead of imprisonment, courts have held in many cases that a financial penalty alone would not address the principal goals of sentencing. In Dibdin, the court held that a fine alone was inappropriate for a first offender whose drunk driving offence bespoke an alcohol problem. Because rehabilitation and specific deterrence are the primary goals for first-time offenders, the sentence must be tailored to these goals.
It is likely that the principle that the amount of the fine must not be excessive was part of the common law even before it was enunciated in the English Bill of Rights. There is mention of it in Magna Carta, 1215:
For a trivial offence, a freeman shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.
The first task of the judge is to decide whether a fine will be just and appropriate. Once he has done that, he is to measure the amount of that fine against the gravity of the offence for which he is dealing. Part of that consideration, and a part only, in cases of property crime, is the value of the goods. It will not be decisive. The court should then have regard to the means of the appellant “to ensure that the fine does have the effect of punishing him”. The fine ought not to send the offender to prison by the back door. Where the fine is the appropriate disposition for the offence, it would be wrong to impose a term of imprisonment simply because the offender is rich enough not to be affected by a fine.
If a fine arrived at in this way is so high that the offender is “stripped of a very substantial part of his assets”, that is a good indication that either the fine must be lowered or a fine is not the appropriate measure to use to deal with the offence. Thus, the amount of the fine should be determined in relation to the gravity of the offence; then — and only then — should the offender’s means be considered to decide whether he has the capacity to pay such an amount. If that procedure is followed, then the monetary penalty will be of sufficient magnitude to make it uneconomical for the offender to carry on his unlawful activity. It will not be a “license fee”. Further, in determining the appropriate amount of fine, courts must consider the “totality principle”.
The fine must be sufficiently substantial to warn others that illegal activities will not be tolerated, and the amount of the fine will take into consideration the seriousness of the offence and ordinary sentencing principles. On the other hand, where a number of similar offences are charged and dealt with by fines, although concurrent penalties are not possible in the case of fines, the fines ought to be adjusted so that the total punishment for all similar offences is not in excess of the maximum penalty for any one of the offences, and the total amount is not beyond the means of the offender.
Very often the object is to take away the profit made from crime, and at the same time impose something more than that as punishment. Some courts consider it crucial to distinguish between the imposition of a fine as punishment and the use of a fine as a method of confiscating the profits of crime. In any case, it is wrong to impose a fine if the offender is unable to pay it. The court must be satisfied as to the requisite criminal standard that the offender has made a profit from his wrongdoing and that he has the means to pay a fine that seeks to deprive him of that profit. Conversely, where the offender has not benefited economically, there is no reason to impose a fine in many cases.
(1) Ability Of Jordan Tavares To Pay A Fine
[109] If Jordan Tavares were to be sentenced to pay fines as a penalty for committing the two regulatory offences, then one of the key factors to consider in determining a fit and appropriate sentence is Tavares’ ability to pay a fine within a reasonable time: R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43 (S.C.C.) and R. v. Snider, (1977), 1977 1992 (ON CA), 37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont. C.A.).
[110] Ergo, on the admissible evidence, the sentencing judge must be satisfied on a balance of probabilities that the offender is able to pay a fine before imposing a fine, while the offender has no legal or evidential burden to prove an inability to pay a fine and can simply argue that the evidence on record relied on by the prosecution, who is seeking the fine, should not satisfy the court that the offender is able to pay. However, despite not having a legal or evidential burden to prove an inability to pay, the offender is still entitled to present or adduce any evidence or information admissible in the sentencing hearing that would tend to show that the offender is unable to pay a fine.
(2) What Is The Appropriate Fine, If Any, That Should Be Imposed On Tavares For Committing The Two Regulatory Offences?
[111] To reiterate, when sentencing an offender in respect to a quasi-criminal or regulatory offence in Ontario, the sentencing court may take into account the objectives of denunciation, specific and general deterrence, separation of the accused from society if necessary, rehabilitation, reparation to victims and to society, and promoting a sense of responsibility in offenders, as well as the other principles or goals of sentencing set out in ss. 718, 718.1, and 718.2 of the Criminal Code. In addition, the sentencing court, as a matter of principle, must investigate or conduct an inquiry into the offender’s ability to pay before it can impose a fine.
[112] In the sentencing submissions, Tavares' legal representative, submits that even though Jordan Tavares and his partner are both employed, they have two children and monthly expenses, so that they are only breaking even each month after expenses are paid (see Exhibit #6).
[113] The minimum fine that could be imposed against Tavares for the “fail to yield to pedestrian” offence under s. 144(7) is $300 while the maximum fine is $1000.
[114] In applying the principle of proportionality to determine the appropriate fine to impose for the “fail to yield to pedestrian” conviction, it should be noted that Jordan Tavares’ driving conduct in committing that offence had not been egregious or reckless. In fact, Tavares had stopped his pickup truck at the stop line for a red light before he had commenced to make the right turn which then led to the collision with the pedestrian. However, even though Tavares’ driving conduct was not egregious or reckless, it did fall below the standard of a reasonable and prudent driver making a right turn. And, although a pedestrian had been injured by that imprudent driving and then later died from her injuries, the fine that can imposed by the court to address general and specific deterrence and denunciation does not require the fine to be at the maximum or upper range of the fine that can be imposed for contravening s. 144(7), as Tavares’ driving conduct does not fall within the category of the worst offender, as Tavares did come to a complete stop before he proceeded to make a right turn and before he struck the pedestrian lawfully within the pedestrian crosswalk with his pickup truck. As such, a fine of $500, which falls between the minimum fine of $300 and the maximum fine of $1000 for that conviction will adequately satisfy the principles of general and specific deterrence and denunciation.
[115] However, imposing a significant fine for Tavares’ conviction for “driving while under suspension” under s. 53(1) will not adequately address the principles of denunciation, general and specific deterrence, and rehabilitation, considering the aggravating circumstances of the serious injuries sustained by the pedestrian which ultimately led to the pedestrian’s death and in light of the fact that Tavares had been driving on July 28, 2020, when his driver’s licence had been already in suspension for 320 days, and that he has collected five convictions for driving without a valid and current driver’s licence prior to the collision. Ergo, since imposing a fine for the “driving while under suspension” conviction will not likely deter Tavares from continuing to drive a motor vehicle on Ontario highways when his driver’s licence is suspended, a different sanction other than imposing a fine is warranted, and as such, a fine will not be imposed on Tavares for the “driving while under suspension” conviction.
[116] Therefore, in consideration of the sentencing principles, in particular the principles of proportionality, parity, totality, and denunciation; and to address general and specific deterrence, especially specific deterrence considering that Tavares has a history and pattern of driving when his driver’s licence is suspended by the Ministry of Transportation for unpaid fines; and in light of Tavares’ ability to pay a fine within a reasonable time, Jordan Tavares will have to pay the following fines for the two convictions:
(1) count #1 (“fail to yield to pedestrian”): a fine of $500.
(2) count #2 (driving while under suspension): no fine.
[117] The total amount of fines that Jordan Tavares will have to pay is $500 (which does not include the corresponding court costs and victim fine surcharges for the “fail to yield to pedestrian” conviction).
(D) SHOULD JORDAN TAVARES BE SENTENCED TO A PERIOD OF IMPRISONMENT?
(1) Imprisonment As A Sanction For Regulatory Offences
[118] Imprisonment is regarded as the sanction of last resort, but it is still available for use in deterring others from committing similar offences. This sentencing principle of imprisonment as a last resort has been recently codified in the Criminal Code under s. 718.2(d). In addition, Clayton Ruby in his tome entitled, "Sentencing (10th ed.)", at Chapter 13, sections 13.1, 13.2, 13.3, and 13.4, succinctly summarized the function of custodial sentences, which is very applicable to the present case. Ruby noted that imprisonment should be the penal sanction of last resort and that prison is to be used where no other sanction, or combination of sanctions, is appropriate to the offence and the offender, and that imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation. In addition, Ruby explained that the appropriateness of a particular sanction is determined largely by the needs of the victims and the community, as well as the offender, and that the focus is on those closely affected by the crime. Moreover, Ruby also noted that when a sentence is one of imprisonment, the protection of society is accomplished in an absolute sense by preventing an offender from repeating his unlawful acts upon society during the term of his imprisonment, as well as fulfilling the sentencing goals of deterring the offender from committing other offences upon his release and deterring others from committing the same or similar offences [emphasis is mine below]:
Imprisonment should be the penal sanction of last resort. Prison is to be used where no other sanction, or combination of sanctions, is appropriate to the offence and the offender. The creation of the conditional sentence suggests a desire to reduce incarceration. As a corollary, section 718.2 of the Criminal Code is intended to expand the use of restorative justice principles in sentencing. It is a response to the problem of over-incarceration. …
Imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation. Unfortunately, there is widespread consensus that imprisonment has not been successful in achieving some of these goals.
In Canada, the continuing overemphasis on incarceration may be partly due to the perception that the restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment. The Supreme Court of Canada has stated flatly that a sentence focused on restorative justice is not necessarily a “lighter” punishment. Restorative justice assumes that all things are related and that crime disrupts the harmony that existed, or should have existed, prior to its occurrence. The appropriateness of a particular sanction is determined largely by the needs of the victims and the community, as well as the offender. The focus is on those closely affected by the crime. Restorative justice necessarily involves some form of restitution and reintegration into the community. Offenders must take responsibility for their actions. Incarceration, by comparison, obviates any need to accept responsibility.
Clearly, when a sentence is one of imprisonment, the protection of society is accomplished in an absolute sense by preventing an offender from repeating his unlawful acts upon society during the term of his imprisonment. But that is not its only purpose. We assume the sentence will deter the offender from committing other offences upon his release, and also deter others from committing the same or similar offences.
[119] Furthermore, Ruby at s. 13.8 of his book on “Sentencing” emphasized that imposing a term of imprisonment of the proper length is very difficult, and that no set of rules can do justice to the complexity of the task [emphasis is mine below]:
Imposing a term of imprisonment of the proper length is very difficult, and no set of rules can do justice to the complexity of the task. There are some recurring notions that assist in reaching a just result.
[120] Additionally, in R. v. Wholesale Travel Group Inc. (1991), 1991 39 (SCC), 67 C.C.C. (3d) 193, at para. 218-220, the Supreme Court of Canada considered the rationale for the use of imprisonment as a sanction for regulatory offences and concluded that imprisonment must be available for regulatory schemes to encourage compliance and effective enforcement of regulatory measures [emphasis is mine below]:
The ultimate question is whether the imposition of imprisonment on the basis of strict liability comports with the principles of fundamental justice. For the reasons set out earlier concerning the underlying rationale of regulatory offences, I am of the opinion that it does.
Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to the potential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes. The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction.
I would only add that, in those circumstances where the imposition of imprisonment would be grossly disproportionate to the offence committed, the accused person would have a compelling claim under s. 12 of the Charter. However, the fact that it is possible to imagine instances where the use of imprisonment would be inappropriate should not be used to justify the conclusion that imprisonment can never be imposed in respect of strict liability offences. Imprisonment must be available to governments as a sanction if the power to regulate is to be effective.
(2) Imprisonment Can Be Imposed On Jordan Tavares For A First Conviction Under S. 53(1)
[121] Tavares' legal representative argues that a jail sentence in the circumstances would not be appropriate, since Tavares’ driving conduct had not been egregious or intentional, that Tavares had stopped his pickup truck before he had commenced to make the right turn and before the pickup truck collided with the pedestrian, that Tavares has paid off all his fines and reinstated his driver’s licence, and that a jail sentence would not normally be imposed for a first conviction for the “driving while under suspension” offence under s. 53(1). The Crown disagrees with that position submitted by Tavares' legal representative, and argues that a sentence of imprisonment would be appropriate for the “driving while under suspension” conviction, in light of the aggravating circumstance of the death of the pedestrian that resulted from the collision while Tavares had been a suspended driver and that Tavares ought not to have been driving on July 28, 2020, when the collision with the pedestrian had occurred; and also because of the aggravating circumstance of Tavares’ pattern of continuing to drive when his driver’s licence had been suspended or being invalid; and that a fine would not specifically deter Tavares from driving when his driver’s licence becomes suspended in the future, so that a jail sentence would therefore be warranted.
[122] Accordingly, the Crown argues for a period of imprisonment of six months for the “driving while under suspension” conviction that is based on those aggravating circumstances of the death of the pedestrian, who had been struck by pickup truck driven by Tavares, while Tavares had been suspended by the Ministry of Transportation for unpaid fines and because of Tavares’ driving record in which Tavares had been convicted numerous times for driving without a valid and current driver’s licence, and for being convicted of other driving offences when Tavares had been driving with a suspended or invalid licence. Moreover, the Crown argues that it can be inferred that Tavares had been driving when he had been prohibited from driving by the Ministry of Transportation for defaulting in the payment of his fines, and as such, the Crown contends that imposing another fine would not specifically deter Tavares from continuing to drive in the future while his driver’s licence has been suspended. But more importantly, the Crown submits that Martha Bosscher would not have been struck by Tavares’ pickup truck if Tavares had complied with the law, since Tavares should not have been driving on that fateful day, as Tavares’ driver’s licence had been suspended since September 12, 2019, for unpaid fines.
[123] Furthermore, from the date that Tavares’ driver’s licence had been suspended on September 12, 2019, for unpaid fines, to July 28, 2020, when Tavares had driven the pickup truck that had collided with the pedestrian, Tavares’ licence had already been under suspension for 320 days. Ergo, because of Tavares’ pattern of driving without a valid and current driver’s licence based on his five previous convictions for doing so, it would not be unreasonable to infer that Tavares would have likely continued to drive a motor vehicle on public highways for those 320 days.
[124] Moreover, the availability of a sentence of imprisonment under s. 53(1) of the H.T.A. demonstrates this particular offence’s gravity and the provincial legislators’ concern with individuals driving motor vehicles while their licences are under suspension by specifically providing for imprisonment as a penal sanction, in contrast to the imposition of fines as the general sanction for the majority of traffic offences in the H.T.A., and is also an indication that the Ontario legislators had considered and determined that imprisonment would be a suitable penalty for committing the “driving while under suspension” offence.
[125] In addition, by specifically providing for a sanction of imprisonment for the s. 53(1) offence of “driving while under suspension”, especially when general penalties under the P.O.A. and the H.T.A. only provide for the imposition of fines, is also indicative that imprisoning an offender on being convicted of “driving while under suspension” would not be unusual or inappropriate for a first conviction.
[126] Therefore, a sentence of imprisonment for an offender, such as Jordan Tavares, convicted of contravening s. 53(1) of the H.T.A. for the first time is an appropriate sanction for achieving certain sentencing objectives, especially when there is potential for that offender, based on their history of unlawful conduct, to cause substantial harm to the public.
(3) Licensing And Driving Is A Privilege
[127] Driving is a privilege; it is not a God-given nor a constitutional right. This principle has been confirmed by the Supreme Court of Canada in Galaske v. O'Donnell, 1994 128 (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28 (S.C.C.) at para. 26:
The driving of a motor vehicle is neither a God-given nor a constitutional right. It is a licensed activity that is subject to a number of conditions, including the demonstration of a minimum standard of skill and knowledge pertaining to driving. Obligations and responsibilities flow from the right to drive.
[128] Section 31 of the H.T.A. also reaffirms the principle that driving is a privilege:
- The purpose of this Part is to protect the public by ensuring that,
(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and
(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.
[129] Ergo, upon review of Tavares’ driving record contained in Exhibit #3, it is evident that Tavares has displayed frequent unlawful behaviour and repeated actions of continuing to drive a motor vehicle when his driver’s licence had been suspended for unpaid fines or when he ought to have known that his driver’s licence would become suspended if he ignored his traffic tickets and not pay the traffic ticket fines, and that he should not have been surprised when his driver’s licence is suspended for defaulting in the payment of his traffic fines. This unlawful behaviour is nothing less than absolute disregard for the law. It is also an indication that Tavares treats driving as a right and not as a privilege. Therefore, in Tavares’ case, the sentencing objectives of specific deterrence and denunciation are foremost considerations in determining a fit sentence for the “driving while under suspension” conviction.
(4) Potential Harm That Unlicensed Drivers Pose To The Safety Of The Public
[130] The Supreme Court of Canada in R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53 (S.C.C.), at paras. 43, 46 and 47, concluded that proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public roads and to prevent or lessen the carnage on highways, and that unlicensed and uninsured drivers have a marked propensity for being involved in serious motor vehicle accidents, and that there is statistical evidence of positive correlation between unlicensed driving and an increased risk of serious highway accidents. The Supreme Court also recognized that the unlicensed driver is a statistically proven menace on the highways [emphasis is mine below]:
It shows that between 1980 and 1984, the number of accidents reported in Ontario came within the range of 182,000 to almost 200,000. These accidents resulted in the death of well over 1000 persons, as well as injuries to more than 90,000 others, in each of these years. In 1984 alone, the amount of estimated property damage reached close to $500 million (Ontario Motor Vehicle Accident Facts: 1980, 1981, 1982, 1983 [page1280] and 1984). These excerpts highlight the potential for killing, for injury and for material destruction which is associated with the operation of automobiles. It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.
In addition, significant weight must be given to the statistical evidence that demonstrates a positive correlation between unlicensed driving and an increased risk of serious highway accidents. In 1984, for example, there were 330,000 reported automobile accidents in Ontario, 1500 of which resulted in fatalities. Of the total of 330,000, over 6,000 (roughly 2 percent) involved unlicensed drivers. However, in what I consider a truly astounding figure, of the 1,500 fatal accidents, over 100 (or roughly 7 percent) involved unlicensed drivers. In other words, in accidents involving licensed drivers, the probability of fatalities was 214 to 1, while for unlicensed drivers the same probability was 59 to 1. The same type of comparison for insured and uninsured vehicles involved in fatal accidents yielded results which were almost as marked. To drive without proper insurance increases the chances of involvement in fatal accidents from 212 to 1 to 83 to 1 (Ontario Motor Vehicle Accident Facts: 1984). The statistics for 1982 and 1983 reveal a comparable pattern.
The only method of ensuring that the brakes and seat belts are operational is by stopping and checking vehicles. Of even greater importance is to determine if a driver is licensed and insured. Once again this can only be done by stopping vehicles. The unlicensed driver is a statistically proven menace on the highways. Moreover, such a driver has demonstrated a contempt for the law and an irresponsible attitude as well as a marked propensity to being involved in serious accidents. All users of the highways have an interest in seeing that unlicensed drivers are apprehended and removed from the highway. As well, society as a whole has an interest in reducing the cost of medical, hospital and rehabilitation services which must be provided to accident victims and in minimizing the emotional damage suffered by the victims' families. Surely the preventive medication of requiring drivers to stop provided by s. 189a(1) is preferable to the incurable terminal tragedy represented by the fatal accident victim and the permanently disabled victim. Surely it must be better to permit the random stop and prevent the accident [page1282] than to deny the right to stop and repeatedly confirm the sad statistics at the morgue and hospital. The majority reasons of United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 (1979), finding random stops unconstitutional, were specifically rejected in Hufsky. However, the position on this issue was well put by Rehnquist J. (as he then was) in his dissenting reasons, at p. 666:
The State's primary interest ... is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The [majority of the United States Supreme] Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.
[131] And, because suspended or unlicenced drivers fall into that category of drivers that pose considerable potential harm and who undermine the safety of others using public highways, and because Tavares’ circumstances of driving while his driver’s licence had been suspended for nearly 320 days on July 28, 2020, and his history of driving convictions and driving without a valid and current driver’s licence, and where his driving conduct caused a pedestrian to sustain serious injuries that led to the death of the pedestrian, shows Tavares to be a driver who poses potential harm to others on public highways, so that a sentence of imprisonment to address general deterrence and to discourage others from continued to drive while their driver’s licences are suspended is required, and is also appropriate specifically to Tavares, in order to deter such unlawful behaviour and is warranted to keep our highways safe from bad drivers, such as Tavares, who have accumulated many driving infractions and suspensions.
[132] Ergo, a sentence of imprisonment of 15 days to be served intermittently on weekends will be imposed on Jordan Tavares for committing the offence of “driving while under suspension” under s. 53(1).
(E) SHOULD JORDAN TAVARES BE SENTENCED TO A PERIOD OF PROBATION?
[133] For the “driving while under suspension” conviction, the prosecution also seeks a period of probation for the offender, Jordan Tavares, of 12 months with the three statutory conditions set out in s. 72 of the Provincial Offences Act, R.S.O. 1990, c. P.33, and the additional conditions that Tavares not operate or have care and control of any motor vehicle, not to be in the driver’s seat of any motor vehicle, and not to be in the possession of any keys or ignition devices for any motor vehicle. Moreover, the period of 12 months is warranted, the prosecution contends, because Tavares has accumulated five convictions for “driving without a valid and current driver’s licence”, been convicted of committing other driving offences under both the H.T.A. and the Compulsory Automobile Insurance Act while Tavares’ driver’s licence had been suspended or invalid, and that the probation order with conditions will protect the public and also address the principles of general and specific deterrence and denunciation.
[134] In addition, Tavares' legal representative also submits that Tavares should be ordered to take counselling for his emotional distress and in respect to his inability to meet obligations and deadlines. The Crown, however, disagrees with the need for this counseling condition to be a condition of the probation order, as the evidence at the sentencing hearing indicates that Tavares is able to meet obligations and deadlines as part of his concrete business.
(1) Should Jordan Tavares be ordered not to drive or operate a motor vehicle for 12 months as a condition of the probation order?
[135] Despite having his driver’s licence suspended 13 times, Tavares’ driving record (Exhibit #3) reveals that Tavares had continued to drive on public highways when his driver’s licence had been under suspension and in which Tavares had also been charged and convicted of committing more driving offences during those periods of suspension. The most serious driving offence occurred on July 28, 2020, when Tavares drove while under suspension and collided with a pedestrian, who later succumbed and died from her injuries received in the collision. And because of Tavares history of this unlawful conduct of driving when his driver’s licence is suspended or invalid and his disregard for complying with the law, a period of probation with the 3 statutory condition set out in s. 72(2) of the [Provincial Offences Act](https://www.can