Her Majesty the Queen v. Thomas Schell, 2023 ONCJ 561

DATE: October 30, 2023 Information No.: 4011-998-22-40100392-00

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. THOMAS SCHELL

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on October 30, 2023, in Sudbury, Ontario

Appearances:

M. Ansell, Counsel for the Crown K. Walker, Counsel for Thomas Schell

PUGSLEY, J. (Orally)

Andal Prasad came to Canada from India to further her education. She was studying for her Master’s degree at Laurentian University in Sudbury. She also worked for a local company here. Before coming to Canada she had had a death in her family and her own family difficulties in India. Her move to Sudbury was a fresh start and she hoped that her relatives in India would be able to join her in Canada. She enjoyed living in Sudbury.

After work one night she took a bus to a bus stop near her home. On the way home after dark she crossed the road wearing dark winter clothing and was violently struck and instantly killed by the pickup truck driven by the defendant Thomas Schell.

A witness saw the accident, observed the defendant slow down his truck and yelled at him to stop. Mr. Schell did not stop but, rather, drove away.

Ms. Prasad was 36 years old. Her family in India was devastated by her death and by the end to her dreams that her death represented.

The defendant was on his way to work at the CPR when he hit the victim. The accident took place at about 6:45 p.m. and his work shift started at 7:00. He was late for work that day. When he arrived at the CP Rail yard he parked unusually, with his truck nose into the parking spot. This was contrary to practice and to the direction of his employer. He completed his regular shift, the first of seven scheduled shifts that week. Mr. Schell did not complete the other six days of work. The next day he called his supervisor and lied about why he could not come to work. He told a story that his father had had a heart attack and was in the hospital. Later he texted that his father had died and went on bereavement leave. This allowed him to avoid going to work that week.

Mr. Schell’s father did not suffer a heart attack and did not die. He still drives the defendant to work to this day. Mr. Schell also lied to his then girlfriend, telling her that he wasn’t feeling well and perhaps had COVID-19. He said this to explain why he did not go into work that week.

The force of the collision was such that the Dodge Ram pickup truck driven by the defendant when he stuck and killed Ms. Prasad had its front damaged. Pieces of the grill were found at the scene of the collision. An anonymous source told Crimestoppers about Mr. Schell’s truck being parked unusually when he arrived for work, a fact confirmed by video surveillance. Sudbury Police started to take note of Mr. Schell. They asked the police in the Sault to check out the state of Mr. Schell’s truck. The police there took a look and confirmed that the front grill was missing from that brand new truck.

On April 8th, 2022 police executed a search warrant at the defendant’s home in Sault Ste. Marie. His girlfriend was present and told the police that the defendant was upstairs, but they could not find him at first. The police searched the home and found pieces of grill in a bedroom. Mr. Schell was hiding in the attic where more pieces of the truck grill were found. The pieces of the grill matched the pieces of grill found at the scene of the accident from the defendant’s truck. There became no doubt that the defendant had hit the victim.

In addition, Mr. Schell had taken active steps to conceal damage to his truck with paint, including painting over the fog lights that had been seen in the surveillance videos, changing the look of the truck. There was other evidence of a collision on this essentially brand new vehicle. Mr. Schell was charged under the Criminal Code with failing to stop at the scene of the accident, the accident that caused Ms. Prasad’s death. The charging section is paragraph 320.163 of the Criminal Code. The penalty section, section 320.21 of the Criminal Code makes this offence an indictable offence punishable by imprisonment for up to life. The enumerated aggravating features of section 320.22 of the Criminal Code do not apply to this case.

The defendant elected to have a preliminary hearing and a trial in the Superior Court of Justice. On June 22nd, 2023 I commenced the preliminary hearing. One Crown witness was called and completed, the eyewitness to the accident. After the morning recess and a meeting in chambers, the preliminary hearing was adjourned to the next day anticipating a resolution. On June 23rd, 2023 the defendant re-elected trial in the Ontario Court of Justice and plead guilty to fail to remain at the scene of an accident causing death. An Agreed Statement of Facts supplemented the live evidence that I had heard on the first day of the hearing.

A pre-sentence report was ordered. A victim impact statement was prepared. Both were before me when submissions as to sentence were made on September 5th, 2023 by a remote hearing. For the purposes of this sentencing, the defendant has no criminal record. A previous conditional discharge was completed. I only reference this because it speaks to the success of the defendant in the past on probation which is referenced by the author of the pre-sentence report.

The pre-sentence report was properly described by Mr. Schell’s counsel as a positive report. In spite of strict bail terms, he has been able to maintain regular employment and has not breached those terms of release. Although the defendant is recorded as providing excuses for his leaving the scene which are, plainly put, not supported by the facts he himself has admitted, I accept his expression of remorse for the deceased and for her family.

There is a real and apparent prospect of the defendant’s future rehabilitation.

The victim impact statement speaks sadly about the crushing result to her family Ms. Prasad’s death caused. Their hopes for the future have been destroyed. All I can do is hope that Mr. Schell’s acceptance of responsibility will help ease their burden in some way.

Submissions of Counsel

The Crown submits that an appropriate sentence here is nine months of jail and that a conditional sentence of imprisonment is unfit. The Crown emphasizes that denunciation and deterrence are the principal factors informing a sentence in this case. The defendant knew he had hit a person and simply continued on his way to work. He acted from the moment he got to work to conceal, concoct and lie about what had happened. He never stopped and never reported the accident.

The Crown described his actions as morally culpable and cowardly.

The defendant submits that a conditional sentence of imprisonment is both available and appropriate here and represents a sentence balancing the principles set out in section 718 and following of the Criminal Code.

Analysis of Sentencing Principles

I agree that the Criminal Code makes leaving the scene of an accident where the defendant has caused a death an extremely serious offence. The maximum sentence under subsection 320.21 is the highest sentence available at law, imprisonment for life. I also note that the case law cited by both counsel clearly underlines that a sentencing court must emphasize the denunciation of the criminal behaviour of leaving a victim lying on the roadway to die by speeding away and deterrence to this defendant and others from contemplating and executing that act. Denunciation means the Court expressing the community’s fundamental rejection of the defendant’s action as breaching not only the law but also the moral code common to all persons not to treat a human being as if they were discarded rubbish to be left on the side of a roadway.

Deterrence means that the Court shows this defendant and others what will and must happen when they are held responsible for this serious criminal act.

Clearly, in spite of his excuses to the author of the pre-sentence report, Mr. Schell did not, as he said, freak out or panic. Mere moments later at his workplace he was already putting into play a plan to conceal what he had done, a plan that very quickly included express acts to modify his vehicle to try and avoid being caught. The civilian witness who gave oral evidence and is also cited in the Agreed Statements of Fact on the plea made it clear that the defendant must have known what he did, but he simply drove away.

Further, fail to remain accidents are becoming a common event particularly in heavily populated areas such as Toronto and the Greater Toronto Area. When someone fails to stop and render assistance as the law requires, not only are they acting without regard to the health and welfare of the victim, they are also rendering it difficult or impossible to determine if other aggravating factors such as impairment by alcohol or drugs played a role in the accident itself.

Both counsel provided a selection of cases in support of their submissions. The cases demonstrate the wide range of facts and sentences that inform any criminal sentencing. The Criminal Code at section 718 and the following sections tries to guide the sentencing Court by setting out factors and principles to be balanced when crafting an appropriate sentence, but again other cases and factors and principles do not dictate the result of an individual judge sentencing an individual defendant.

In this case, the issue is also made more tragic by the fact that had Mr. Schell stopped after the accident and remained at the scene as required by law and by morality, he may well have faced no charge at all. Ms. Prasad was walking in dark clothes on a dark February night and the collision might have been found to be a sad and tragic accident.

When Mr. Schell left the scene, he within moments decided on the path that he would take: lie, avoid, cover up and conceal when he could have and should have immediately stopped, called an ambulance and the police or at the least asked his supervisor to call the police when he got to work moments later. With each lie and action to avoid responsibility, he instead walked the path that has led to him being in court today. It was not a spontaneous choice, but rather one carried out over several days while the community wondered who had done this act and would they be caught and held responsible.

In November of 2022 with the passing of Bill C5 Parliament revised the availability of a conditional sentence on serious charges where it had been unavailable in the past. In Mr. Schell’s context a conditional sentence may now be imposed provided that four criteria are met. To paraphrase, 1) the offence that the defendant was convicted of has no minimum sentence of imprisonment, 2) the Court must impose a term of jail of under two years, 3) the safety of the community must not be endangered by the sentence being served in the community and 4) that a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing set out in section 718 and following in the Criminal Code.

Conditions one, two and three set out whether a conditional sentence is available. Condition four asks whether a conditional sentence is appropriate.

There is no doubt here that a conditional sentence of imprisonment is available. The Crown properly concedes that any sentence of incarceration would be under two years by their submission that jail for nine months is appropriate. There is no minimum jail time in the defendant’s case, and requiring Mr. Schell to serve a sentence in the community does not represent a risk to that community.

The real question is not whether a conditional sentence is available, but rather whether it meets the sentencing principles and factors set out in sections 718 to 718.2 inclusive. R. v. Proulx in the Supreme Court of Canada in 2000 reminds us that a conditional sentence of imprisonment is, in fact, a sentence of imprisonment. Notably, often conditional sentences are longer in duration than a sentence would be if it was served in jail. If a conditional sentence is breached by a defendant, the entire remaining sentence may be converted to a sentence to be served in jail. In other words, if there is a breach, an offender may end up serving longer time in custody than if they were sentenced to custody in the first place.

These are factors sometimes not understood by persons who believe that a conditional sentence served in the community does not represent a real penalty. Actually, conditional sentences were created by Parliament to recognize that in the past a custodial sentence of jail was often inappropriate for the specific offender in the specific offence and particularly so when previously disadvantaged members of society were before the Court for sentencing.

I have already noted that Parliament has made this offence one of the most potentially serious offences literally in the book. At the same time, Parliament has recently acted to widen the availability of a conditional sentence in appropriate circumstances, including for people convicted of this offence. Parliament has done so even though the former provision under section 742.1(c) of the Criminal Code where such a sentence was unavailable where the offence was punishable by 14 years to life in jail as here was recently ruled Constitutional when the Supreme Court of Canada reversed the Ontario Court of Appeal in R. v. Sharma.

Earlier I noted that one possible reason for an observed increase in fail to remain accidents relates to possible facts that the driver did not want to be discovered such as that he or she had consumed alcohol or drugs or was driving on a prohibited licence or had outstanding arrest warrants. None of those factors were a factor in this case. Notably, had Mr. Schell been impaired, it seems very likely that his employer would have noticed when he reported for his shift and worked through that shift.

What he did was leave Ms. Prasad to die on the road on a cold February night in a country far from her home. His conduct was reprehensible, immoral and, as the Crown suggests, cowardly. The sentence today must denounce and deter that conduct. In my view, however, that denunciation and deterrence can be accomplished by a sentence of incarceration to be served in the community. I say so because he has now accepted responsibility for this act by his plea of guilt and by standing here in front of his community accepting the judgment of that community through me today. As a result of this conviction, he will now have a criminal record which will significantly restrict his future travels and work prospects. He will now have a Canada-wide lengthy driving prohibition order. He will now have a mandatory section 109 firearms order and he will now have his DNA taken and placed on the national DNA databank.

Mitigating Factors

There are mitigating features here that benefit Mr. Schell. As already noted, he plead guilty after only one witness in the preliminary hearing. He is youthful and this is his first criminal conviction, and he has demonstrably good family supports. He has expressed his remorse for his actions. He has abided by significant bail conditions before his plea which included a driving restriction causing him to lose his job at the CPR. He has taken up and maintained other employment.

Sentence Imposed

I’m going to ask you to stand now, please, sir. As to incarceration, you are sentenced to 15 months incarceration to be served in the community subject to a conditional sentence order.

Besides the statutory terms of every conditional sentence order, you will report to your sentence supervisor within 48 hours of today and you will be bound by an order requiring you to be in your residence at all times for the first five months of your conditional sentence except you may be out of your residence for the following purposes:

first, to travel to and from and during the course of your employment on a schedule approved of by your sentence supervisor; second, every Saturday from 12 noon to 4:00 p.m. you may be out of your residence for the purpose of obtaining necessities of life; third, for medical assessment and/or counselling appointments and medical emergencies for you or a member of your immediate family; fourth, for religious observance, if any, on a schedule approved of by your sentence supervisor; and fifth, at any other time with the express written permission of your sentence supervisor specific to date, place, times and conditions.

For the sixth, seventh, eighth and ninth months of your sentence you will be bound by a curfew to be in your residence from 11:00 p.m. to 6:00 a.m. every day except, first, as required by your employment on a schedule approved of by your sentence supervisor; second, for medical emergencies for yourself or a member of your immediate family; and third, with the express written permission of your sentence supervisor.

For the remainder of your conditional sentence you will be bound by the statutory terms of the conditional sentence order.

During your conditional sentence, you will take such assessment or counselling as may be directed by your sentence supervisor and cooperate in information going back to your supervisor so she or he knows how you are doing with regard to that assessment and/or counselling, including signing any necessary releases so the supervisor can contact the service provider directly. You will not possess any weapon as defined by the Criminal Code. Counsel, are other terms suggested for the conditional sentence order?

M. ANSELL: No, Your Honour.

THE COURT: No?

MR. WALKER: Your Honour, two things. If we could have it transferred to Sault Ste. Marie?

THE COURT: Certainly it can be transferred to Sault Ste. Marie. I’m not sure that’s something I need to do, but I will do so if necessary.

MR. WALKER: Okay. The second thing, in the curfew part of it, do you have an exception for employment?

THE COURT: Yes.

MR. WALKER: Okay. I wasn’t sure if I heard that.

THE COURT: I assumed he may be working shifts, Mr. Walker. If you are found to have breached this order, it may result in the entire remaining sentence being converted to real jail. That’s the kind with the clanging steel doors. Do you understand, sir?

THOMAS SCHELL: Yes. Yes, Your Honour.

THE COURT: If this order needs to be reviewed or changed you can ask a judge to consider changing the order.

You are also prohibited from operating a motor vehicle under subsection 320.24(5) of the Criminal Code for a total of three-and-a-half years starting today. That is the 15 months of your sentence, plus approximately two years after your sentence is served. In reaching this time, I have considered the fact that while on bail you have been on a term not to drive a motor vehicle.

Under section 109 of the Criminal Code, you will not possess any firearm, ammunition or explosive device for 10 years in the case of any firearm other than a prohibited or restricted firearm, and for life with regard to any prohibited firearm, restricted ammunition, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

Section 320.163 is a secondary designated offence. You will provide a sample of your DNA to the National DNA Databank today before you leave the courthouse. Anything I have forgotten? I have considered and decided not to impose a period of probation. Anything else from the Crown?

MR. ANSELL: Nothing from the Crown, Your Honour.

THE COURT: From the defence?

MR. WALKER: Nothing, Your Honour.

THE COURT: Are there other charges on the information?

CLERK REGISTRAR: There are two others.

MR. ANSELL: Yes, Your Honour, and I can ask that the balance be withdrawn.

THE COURT: The other charges are withdrawn. There will be some considerable paperwork for your client to sign, Mr. Walker, before he leaves the courthouse today and his DNA will be taken today, all right? Okay, thank you, sir. Good luck.

... WHEREUPON THE PROCEEDING CONCLUDED