ONTARIO COURT OF JUSTICE

DATE: 2023 02 10

COURT FILE No.: Sarnia 22-063

BETWEEN:

HIS MAJESTY THE KING

— AND —

MELISSA MILLER

Before: Justice M.T. Poland

Heard on: June 8, 2022 and December 19, 2022

Reasons for Judgment released on: February 10, 2023

Counsel: Aniko Coughlan, for the prosecution Terry L. Brandon, for the defendant Melissa Miller

POLAND J.:

INTRODUCTION

[1] On the morning of Saturday August 22, 2020 Lori Neville, the mother of a three year old boy, got on her bike to start her ride in support of the Great Cycling Challenge to find a cure for childhood cancer.

[2] Before the morning was over, Lori was dead as the result of the actions of a driver who made the decision to text while driving.

[3] These reasons address the significant challenge of imposing an appropriate sentence in the face of this tragic death, in the context of a guilty plea not under the criminal law, but rather under the regulatory law framework of the Ontario Highway Traffic Act, RSO 1990, c.H.8. (“HTA”).

FACTS

[4] The parties put forward a significant effort to resolve this case. They compiled and submitted an Agreed Statement of Facts.

[5] The agreed facts demonstrate that on August 22, 2020, at 10:20 am, Lambton OPP were dispatched to the scene of a collision on Petrolia Line, just west of Brigden Sideroad.

[6] They arrived to find that Melissa Miller, operating a 2015 Honda Civic, had struck Lori Neville who was riding her bicycle westbound on Petrolia Line. The force of the impact resulted in Lori Neville landing in the north ditch of Petrolia Line.

[7] After striking the cyclist, Ms. Miller immediately stopped and attempted to render assistance. She called 911 and told the dispatcher that she had just hit a cyclist. An off-duty police officer attended at the scene and began CPR while Ms. Miller remained on the line with the 911 operator.

[8] A transcript of the 911 call from Ms. Miller was filed in this proceeding as Exhibit 2. It demonstrates that Ms. Miller called 911 just before 10:10 am. Paramedics were on scene within approximately 10 minutes.

[9] Notwithstanding the efforts of first responders, Lori Neville was pronounced dead at Bluewater Health in Sarnia at 10:48 am.

[10] Further investigation determined that Lori Neville was properly equipped as a cyclist. She was wearing a helmet and had employed high visibility reflectors and lights to alert motorists of her presence on the roadway.

[11] A traffic investigation determined that at the time of the collision the roads were clear and dry. In the immediate area of the collision, the road was under construction. Pylons were present on the north and south side of Petrolia Line, and fresh asphalt had been laid down. There were no road markings present. Police found no signs of braking during the incident. The investigation uncovered no evidence of excess speed or driver impairment.

[12] While still at the scene of the collision, OPP officers advised Ms. Miller that Lori Neville had died. They explained that they would be seizing Ms. Miller’s cellphone as part of the investigation. Ms. Miller was asked for the cellphone, which she handed over to the police. No rights to counsel or police cautions were given before asking Ms. Miller to hand over her phone. The day after the phone was seized, officers asked Ms. Miller to attend the Petrolia OPP detachment where she was asked to sign a form relinquishing her cellphone. She did so.

[13] The OPP examined Ms. Miller’s cellphone. That examination yielded evidence that Ms. Miller had used her phone to text message another party just prior to the accident.

[14] In particular, at 10:02 am, Ms. Miller sent a message that said “We brought the stand.”

[15] In an apparent answer, the respondent replied, “Thanks Mel”.

[16] Three minutes later, at 10:05 am, Ms. Miller sent the following message, contained in two lines of text:

“Hlen should be by the” “Where you.grt t9 the line”

[17] Ms. Miller admits that engaging in this messaging conversation caused her to be briefly distracted in the moments immediately before she struck and killed Lori Neville.

POSITION OF THE PARTIES

[18] The parties present highly disparate sentencing positions.

[19] The Crown asks the Court to impose the maximum sentence available at law by imposing a sentence of 2 years in jail, and a driver’s licence suspension of 5 years, in addition to a period of probation for 2 years.

[20] The Defence, on the other hand, urges the consideration of a non-custodial sentence, with no driver’s licence suspension. In particular, counsel invites the Court to consider the imposition of a probationary period that would effectively mirror the terms of a conditional sentence that might be imposed under the Criminal Code of Canada, RSC 1985 c.C-46 (“Criminal Code”) sentencing scheme.

CIRCUMSTANCES OF THE OFFENDER

[21] A Pre-sentence report (“PSR”) was presented during the sentencing and filed as Exhibit 8. It was very helpful in providing details of Ms. Miller’s background.

[22] Melissa Miller is a 40 year old mother of two children who are approximately 10 and 12 years old. Ms. Miller comes from a supportive family. She has a mother, and two siblings, who she remains very close to. Ms. Miller lost her father to cancer within the year prior to these events. Ms. Miller is a resident of Courtright where she lives with her husband of 18 years, Glen Miller. Her husband remains a source of strong support to her, as is her extended family. Ms. Miller is described as extremely involved in her children’s lives, in her church and in her community.

[23] The Defence submitted 14 letters from a variety of Ms. Miller’s supporters. These letters included strong indications of support from Ms. Miller’s past clients, friends, and from her employer. A letter from River City Vineyard Christian Fellowship and Sanctuary was also included. This letter describes Ms. Miller’s volunteer work in the homeless shelter that is run by this agency over the past two and a half years. Ms. Miller is said to excel in her volunteer efforts with the homeless and is described as caring, compassionate and hard working.

[24] In terms of her education and professional background, Ms. Miller attended school in Sarnia and Wallaceburg, and then engaged in post-secondary studies in London. She then attended Lambton College where she completed both the Paramedic and Registered Practical Nursing programmes.

[25] At the time of this collision, Ms. Miller was working full-time as a home care nurse in Lambton County. The many letters filed in the Defence brief make it clear that she is an experienced, kind and capable nurse who goes well beyond what is merely necessary in her efforts to provide care for the patients that are assigned to her. As the letters of support attest, Ms. Miller is described by many of her former patients in entirely glowing and positive terms.

[26] At the time of the collision, Ms. Miller had been working as a home health care nurse for about 12 years. Her duties required her to complete home visits across Lambton County. Her work schedule was demanding, and she worked both weekdays and weekends. The job demands on Ms. Miller through the period of the pandemic were particularly intense, as they were for many essential front line health care workers in our community. In the PSR, Ms. Miller described her employer suffering a staffing shortage through the pandemic that required her to attend to as many as 20 or more clients per day.

[27] Ms. Miller has taken full responsibility for causing the death of Lori Neville. In fact, she did so from the very first moment. She is extremely remorseful, as has been obvious throughout her dealings in Court. Her husband describes the impact of her causing the death of Ms. Neville to be “beyond massive” and devastating. She has suffered anxiety and depression as a result, and has been diagnosed and treated for post-traumatic stress disorder. She has been in counselling since the time of the offence.

[28] Given this background, it is unsurprising that Ms. Miller has no criminal record. She has a minor HTA record that is, with one exception, unremarkable. She has not been convicted of any traffic offences in the last 8 years.

[29] The one entry that is of potential concern on Ms. Miller’s HTA record relates to a conviction on March 30, 2015, under s.78.1 HTA. This occurred slightly more than 5 years prior to the offence in this case. That entry is described in the record as follows:

“Shall not drive holding or using a hand-held communication device.”

[30] As a practical matter, texting while driving likely represents one of the more serious and concerning ways that one could use a hand-held communication device while operating a motor vehicle. To do so requires the driver’s attention to be taken off the roadway, potentially for a protracted period of time. Texting requires the operator to focus not only on reading received messages, but also on applying multiple key-strokes to a relatively small screen in order to send messages.

[31] Here, the Crown tendered no evidence further detailing the circumstances that led to Ms. Miller’s 2005 finding of guilt. Since it is an offence to both hold and use a cellphone, and since the onus is on the Crown to prove aggravating circumstances beyond a reasonable doubt, I am unable to conclude that the HTA record filed represents an earlier example of Ms. Miller texting and driving. In the circumstances presented here, it could be that Ms. Miller was convicted of the facially less aggravating alternative of simply holding a cellphone, rather than using it. As a matter of law, Ms. Miller is required to be sentenced on the basis of the least aggravating scenario unless the Crown proves a more aggravating set of facts beyond a reasonable doubt. R v. Gardiner, [1982] 2 S.C.R. 368.

[32] The gap in time between the earlier HTA entry and the collision in August 2022 is significant. Apart from the attenuating effect of the gap principle in sentencing, it is also noteworthy that the HTA itself, at s.78.1(6.3), would not consider this offence to be a “subsequent offence” for the purpose of applying the aggravated penalty provisions because it was committed more than 5 years prior to the events described here.

[33] Both of these factors must be seen to modify the extent to which the 2015 HTA entry can be considered to be an aggravating circumstance in the factual context of this case.

[34] That is not to suggest that the prior entry is not aggravating at all. It is. The HTA amendment that added the s.78.1 offence was passed in order to levy a complete prohibition on having a cellphone in one’s hand while driving. It was directed at eliminating the risk of distraction, and the temptation to use the phone. R v. Kazemi, 2013 ONCA 85 at 14.

CIRCUMSTANCES OF THE OFFENCE

[35] The circumstances of the offence contain a number of aggravating factors. As previously indicated, Ms. Miller not only struck and killed Ms. Neville with her motor vehicle as a result of driving without due care and attention, but the reason for her lack of attention involved the commission of an HTA offence that was intended to address the notoriously dangerous practice of driving while distracted.

[36] It is further aggravating that the collision here took place in an area where the roadway was under construction. The speed limit had been reduced to 60 kph. Motorists driving in areas under construction must apply additional care and attention. Texting while driving on a road that is under construction clearly and plainly invites tragedy.

[37] Having noted that, the extent of Ms. Miller’s inattention to the roadway must be addressed. There is no evidence that she was engaged in a protracted text messaging conversation. Rather, on the evidence presented, Ms. Miller’s decision to text and drive must be seen to be of short duration. The agreed facts describe Ms. Miller being “briefly distracted”.

[38] The police investigation revealed no evidence of hard braking or collision avoidance. Properly understood, this is not an aggravating factor. No evidence of braking or collision avoidance is not the same thing as evidence of no braking or evidence of no effort at collision avoidance.

[39] It is a statutory aggravating feature of this collision that Ms. Neville was a cyclist. In that respect, s. 130(6) of the HTA states the following:

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

[40] Ms. Neville clearly understood the dangers that could be presented to cyclists by vehicles being operated unsafely. She was equipped with a helmet, bicycle reflectors and one or more flashing lights. A reflective arm band was also found at the scene. In short, Ms. Neville was doing everything she could to keep herself safe in the circumstances.

[41] The impact of Ms. Neville’s death on her many friends and family is a significant aggravating feature associated with the offence in this case. Ms. Neville’s death was a preventable tragedy that resulted in her family being deprived of a spouse, a child, a daughter-in-law, a sibling, an Aunt and a mother. Ms. Neville’s family of origin, and her extended family by marriage has been devastated by her loss. The victim impact statements that were shared during the sentencing were heartfelt and agonizing, but very important to hear. It is clear from those statements that Ms. Neville was loved, respected and admired by those around her, and that she was a caring, kind and productive member of our community who was focused on giving back to others.

SUMMARY OF MITIGATING AND AGGRAVATING FEATURES

[42] In summary, I find the following to be mitigating features in this sentencing:

(a) Melissa Miller has no criminal record. She has a dated and, with one exception, unrelated highway traffic act record.

(b) She is educated, and has a strong and complete record of employment. This employment included serving as a front-line medical worker during the pandemic, an experience that underscored Ms. Miller’s commitment to service, but which had an adverse impact on her.

(c) Ms. Miller has a strong record of community and volunteer engagement and is well known to be a person of upstanding character who gives freely of herself to her friends, family and those around her.

(d) Melissa Miller is without doubt remorseful. She has developed obvious insight into her offending behaviour. She has undoubtably been deeply affected by her involvement in the justice system.

(e) Melissa Miller has developed understandable mental health challenges as a result of this tragedy. She suffers from depression, anxiety and PTSD.

(f) Immediately after striking Lori Neville, Melissa Miller remained at the scene, made a 911 call to seek medical care, attempted to offer assistance and remained engaged until first responders arrived.

(g) Ms. Miller took immediate responsibility for her actions. She cooperated with the police throughout, and has made clear her intention to plead guilty to this offence from the outset.

[43] I find the following to be aggravating features in this sentencing:

(a) Melissa Miller was previously found guilty under the HTA of a s.78.1 offence.

(b) The impact on the friends and family, and particularly upon the children in Lori Neville’s life has been devastating. To her family, Lori Neville’s death presents as a life-long tragedy that will never be overcome.

(c) The offence of driving without due care and attention arose from texting while driving in a location where the road was under construction. While relatively brief, this action must be seen to be towards the higher end of culpability for an offence under s.130 HTA given that it involved an obvious assumption of risk.

(d) Ms. Miller’s driving caused the death of a person who was a vulnerable road user. This is a statutory aggravating circumstance under s.130(6) HTA.

ADDITIONAL FACTORS

[44] Both parties presented submissions about the extent of Ms. Miller’s cooperation to the police and her intention to plead guilty from the outset. While these are both traditionally mitigating factors, the value of the guilty plea is said to be enhanced in this case because Ms. Miller’s decision to enter a guilty plea occurs in a case where the Crown faced significant litigation risk had the matter gone to trial.

[45] The Crown’s litigation risk arose because of the decision of the initial investigating officers to seize Ms. Miller’s phone at the scene of the collision. At the time that the phone was seized, Ms. Miller was not under arrest. The authority for the seizure of the phone was apparently the “consent” of Ms. Miller. No evidence has been adduced to demonstrate that the police complied with the well-known requirements found in R v. Wills (1992), 12 C.R. (4th) 58 that are directed at ensuring that consent in such circumstances is voluntary and informed.

[46] Here, the Crown acknowledges that there are facts that suggest that the police might well have erred in taking possession of Ms. Miller’s cell phone. If that issue had gone to trial, and if the Crown had lost their argument, the cell phone evidence might have been excluded.

[47] The Crown asserts that even if the cellphone evidence was excluded at trial, it would have pursued a prosecution against Ms. Miller. Nonetheless, if the Crown was not able to rely on the cellphone to show that Ms. Miller was texting and driving, its case would have been dramatically weaker.

[48] There were no witnesses to this collision. There is no surveillance footage. No one complained about Ms. Miller’s driving beforehand. Apart from a single HTA entry from 5 years before this crash, Ms. Miller does not even have a bad driving record. While it is true that there were no signs of braking, collision avoidance or mechanical failure, one can imagine many circumstances where even an otherwise diligent driver might have no realistic chance to avoid an accident.

[49] By averting to the existence of litigation risk in this case, the Crown acknowledges that there is a realistic chance that Ms. Miller might have been found not guilty if there had been a trial in this case. If that had happened, there would be no acknowledgement of responsibility. There would be no chance to put forward a victim impact statement. In fact, there would be no recognition that Ms. Neville’s death occurred as a result of any kind of improper driving.

[50] The fact that Ms. Miller entered a guilty plea and accepted responsibility for her wrongdoing in this case is therefore very significant. The decision to not challenge the entry into evidence of the cellphone analysis enhances the value of her guilty plea. The extent of mitigation to be afforded to the guilty plea must be seen to be at the higher end of the spectrum.

[51] The bare existence of a guilty plea – even without the issue of the acknowledged litigation risk here – mitigates the sentence. While the analysis cannot devolve to a precise mathematical exercise, the Ontario Court of Appeal has endorsed significant sentence reductions in cases involving guilty pleas. Some cases have discussed mitigation afforded in the range of up to 30 percent in cases where a guilty plea occurs, even without the unique factors I have discussed that exist in this case. See R v. Pham, 2008 ONCA 421.

[52] The acknowledgment of a guilty plea as a mitigating factor, particularly in a case where a guilty verdict was not a foregone conclusion, is absolutely required as a matter of law. R v. Faulds, [1994] O.J. No. 2145 (C.A.). Surprisingly, in spite of this well-known legal requirement, the Crown still asserts that the Court should impose the maximum sentence available at law.

LAW

Overview

[53] As may be observed from the foregoing, determining a fit sentence in this case is a difficult prospect. There are significant competing considerations amongst the aggravating and mitigating factors.

Introductory concepts

[54] As a starting point, it should be noted that the offence of careless driving causing death is an offence contrary to s.130(3) HTA. This offence is prosecuted in the Ontario Court of Justice under the procedural structure of the Provincial Offences Act, RSO c.P.33 (“POA”).

[55] The POA presents challenges for courts imposing sentences in serious cases. As has been repeatedly pointed out in academic commentary, and by the Law Commission of Ontario, the POA contains no statement of sentencing principles or purposes. See Justice Rick Libman, “The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences” (2012), 59 C.L.Q. 126 at pp.126-127. This may be contrasted to the strong sentencing framework found in section 718 and related provisions of the Criminal Code. See Archibald and Jull, “Profiting from Risk Management and Compliance”, Aurora: Canada Law Book Inc, looseleaf at 25:42. The challenge of crafting an appropriate sentence under the POA is complicated further by a restrictive scope of sentencing options available when compared to the sentencing provisions of the Criminal Code.

The Regulatory Law Context

[56] In addressing the sentencing process in this case, it must first be acknowledged that this proceeding takes place in the context of a guilty plea to a regulatory offence, not a criminal offence. HTA offences relate to the provincial responsibility to administer and control traffic on the highway, not to the federal responsibility to address crime.

[57] As such, the Court must assess this case and impose a sentence that is consistent with regulatory law. The distinction between the regulatory offence of careless driving and the Criminal Code equivalent offence of dangerous driving is clear. Careless driving is an offence based on a mental fault component that has been referred to as “inadvertent negligence”. The relevant Criminal Code offences require what has been described as “advertent negligence”. O’Grady v. Sparling, [1960] S.C.R. 804. The proof of the Criminal Code offence of dangerous driving causing death requires a finding that the accused’s actions constituted a marked departure from the actions of a reasonable driver in the circumstances. It is a straight indictable offence and one of the most serious in the Criminal Code. Upon conviction an accused faces a maximum sentence of life imprisonment.

[58] A conviction for careless driving causing death, on the other hand, is made out on the far less onerous standard of driving without due care and attention. The maximum sentence for this regulatory offence is 2 years imprisonment.

Sentencing Principles and Objectives

[59] As a result of the modified fault requirement, and the regulatory context, not all of the sentencing principles drawn by analogy from the Criminal Code apply to a sentencing under the HTA.

[60] As a starting point, the “fundamental purpose” of sentencing under the HTA might well be more specifically directed at ensuring the safe and efficient use of public roadways for all users, as opposed to the Criminal Code’s much broader focus on sentencing as a tool that supports the “maintenance of a just, peaceful and safe society.” Criminal Code, s.718.

[61] By contrast, as a broad objective, a focus on proportionality in sentencing is as critical under the HTA as it is under the Criminal Code. Proportionality describes the requirement to address both the degree of responsibility and circumstances of the offender and the gravity and circumstances of the offence. As the Supreme Court of Canada (“SCC”) recently described in R v. Parranto, 2021 SCC 46 at para 24, the quest to impose a proportionate sentence has an organizing function:

The goal in every case is a “fair, fit and principled sanction”. Proportionality is the “organizing principle” in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, “proportionality stands alone” following the heading “Fundamental principle” (s. 718.1).

[62] When one turns to the more specific Criminal Code sentencing objectives, the alignment with the regulatory context is not always perfect. For example, separating offenders from society in some circumstances is a viable objective of sentencing under the Criminal Code. Such a principle will seldom play a role in sentencing in the regulatory context.

[63] The sentencing objective of rehabilitation found in the Criminal Code also presents an awkward fit under the HTA. Rehabilitation is directed at assisting an offender to reform their behaviour with the objective of becoming peaceful and productive. The application of such a principle is somewhat incongruent with the HTA’s focus on regulating and permitting participation in a licenced activity. Returning an offender to society after criminal behaviour is a much different task than returning a driver to the roadway.

[64] The requirement to specifically deter the individual offender from participating in the same or similar conduct in the future is similar as between the Criminal Code and the HTA. This sentencing principle really turns on an assessment of the particular individual who is before the Court. Here, I conclude that there is essentially no need to specifically deter Ms. Miller from this type of driving behaviour in the future through the sentence imposed. Practically speaking, no sentence could deter Ms. Miller any more than she has already experienced as a result of the obvious crushing impact of being responsible for causing Ms. Neville’s death. Ms. Miller’s participation in the justice system has itself promoted a sense of responsibility and represents a clear acknowledgement of the harm that she has caused to Ms. Neville’s entire family and support network.

[65] The restraint principle found in the Criminal Code is directed at ensuring that the overuse of jail in sentencing is avoided. In that respect, it should be kept in mind that depriving a person of their liberty is the harshest penalty available at law in Canada. It is a sanction that must be used sparingly, and when used it must be imposed with great care. Applying restraint is important in all sentencing contexts.

[66] The role that denunciation and general deterrence should play in a sentencing under s.130 of HTA may well be a function of the extent of the offending motorist’s departure from the negligence-like standard of “due care and attention”. For example, a collision based on momentary inattention that results in a motorist missing a stop sign would not require the Court to send a message of deterrence to other motorists or to denounce the conduct to the same degree as would be necessary where a driver knowingly undertakes an inherently risky activity like driving at an excessive speed, aggressive driving, or, as here, driving while texting. In the circumstances presented here, denunciation and general deterrence are both valid HTA sentencing objectives.

Parity

[67] During submissions, the parties spent some time addressing sentences imposed in other cases. Parity suggests that the sentence imposed here should be in general alignment with sentences imposed in other cases. Like cases should be treated alike. Nonetheless, the sentencing exercise must be tailored to the offender and the individual circumstances before the Court. No two cases are identical.

[68] In the case of R v. Friesen, 2020 SCC 9, the Supreme Court took the opportunity to address the interplay between the concept of parity and the fundamental principle of proportionality:

In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

R v Friesen, 2020 SCC 9 at paras 32-33.

[69] In the regulatory context, as in the criminal context, “like circumstances” should be met with “like sanctions”. Parity has an important role. The difficulty lies not in the theory, but rather in the practice. Achieving parity requires some degree of alignment both in terms of assessing similar offenders and assessing similar offences. Where the comparators are difficult to find, the requirement that the sentence be individualized stands in tension with the parity principle.

[70] Here, the Crown presented a sentencing chart and brief containing nine cases. While a number of them were potentially useful insofar as they addressed circumstances in which the use of a hand-held device played a role, not a single of the Crown’s case involved careless driving or any other regulatory offence. They were exclusively limited to serious Criminal Code offences where death or bodily harm was caused.

[71] On February 3, 2023, the Crown produced an additional authority by way of a written submission. This case is referred to as R v. Ballard (“Ballard”). Ballard is unreported case from this Court in Sarnia dated November 8, 2020. In that decision, the Court dealt with an offence of careless driving where the motorist killed a pedestrian who was crossing a city street in a school area, at a cross walk, with his wife. The motorist had been using his cell phone shortly before striking the pedestrian. The phone was searched by way of a search warrant as a part of the investigation. The Crown and the Defence agreed that the proper sentence was one of jail for 90 days.

[72] Importantly, the joint submission was the product of a number of judicial pre-trials with the sentencing judge. Prior to pleading guilty to the HTA offence, Mr. Ballard had been previously charged with dangerous driving causing death. As a result, the sentencing judge had also presided over a preliminary inquiry into the matter prior to hearing the guilty plea. Mr. Ballard, a professional driver who operated a cab company, had an HTA record in the year prior to the collision for using a handheld device in a motor vehicle.

[73] In terms of its value as a sentencing authority, the Ballard case is limited by the context that it arose from. First, it was a joint submission before a judge who had heard evidence in the matter and who was very familiar with the strengths and weaknesses of the case. Such cases are of limited precedential value. Second, the facts did not present an agreed circumstance of “brief distraction” as agreed to by the parties here. Third, Ballard did not take place in the context of an early guilty plea in a case where the Crown acknowledged substantial litigation risk.

[74] Ms. Brandon, for the Defence, presented nine authorities to assist in the analysis of parity. Each of them involved regulatory offences where death or serious bodily harm was caused. These cases were of some assistance.

[75] The case of R v. DeFrietas, 2020 ONCJ 6 is noteworthy, notwithstanding the fact that it was decided in the context of s.130 of the HTA prior to the amendments that added the separate offence of “causing death”. While the available maximum and minimum sentences and driving suspensions all increased with the September 1, 2018 amendment that added the “causing death” component, the reality is that the sentencing principles and application of the law that applied under the former legislation remains of assistance. Offences where motorists caused death were always treated differently by courts under the HTA, even before the amendments.

[76] In DeFrietas, the motorist was driving too quickly, and lost control of his vehicle while engaged in a dangerous passing maneuver near an intersection. One of his passengers was killed in the resulting collision. The Crown sought a 5 month jail sentence, plus a fine and a driving license suspension. The Defence sought a fine and probation. Mr. DeFrietas’ guilty plea in the Ontario Court of Justice occurred after he had a preliminary inquiry, and had been committed to stand trial for dangerous driving causing death in the Superior Court of Justice. Mr. DeFreitas had no driving record. He spent 11 days in pre-sentence custody.

[77] In her carefully reasoned decision, Justice Henschel noted the continuum of moral blameworthiness, and the modified fault requirements in driving offences across the spectrum from criminal negligence, through dangerous driving to the regulatory offence of careless driving. She carefully assessed the law and assessed the possible range of sentence for careless driving where a death has occurred. Ultimately, the Court applied the 11 days of pre-sentence custody that had been served and imposed a $1000 fine, 18 months probation, and an 18 month licence suspension.

[78] In the case of R v. Messercola, [2005] ONCJ 6, the Crown sought a custodial disposition in circumstances where a motorist killed two pedestrians in a cross-walk while he was turning left. The Court considered a number of mitigating factors, many of which are mirrored in the present case and imposed a fine of $1000 and a period of 18 months probation.

[79] The case of R v. Taylor-Rawlings, [2019] O.J. No. 6980 represents potentially the first reported decision under the new legislation that added the “causing death” component to s.130 HTA. This case involved a 19 year old motorist who slowed down, but did not stop at a stop sign. He turned left onto a highway in circumstances of poor visibility and collided with a motorcycle. The rider was killed as a result. Mr. Taylor-Rawlings asserted that he was not using a mobile device at the time of the collision, and turned his phone over to the police for analysis. That analysis confirmed that he was not using his cell phone. He had no HTA record. The Crown sought the imposition of a fine between $4000 to 5000. The Court imposed a $3500 fine, and a 2 year driving suspension.

[80] In the case of R v. Pathak, 2020 ONCJ 625, the Court considered a circumstance where a driver made a u-turn which caused a collision with a motorcycle that seriously injured the rider, causing him to lose his right leg. The Court endorsed a joint submission on a plea for a fine of $2000 and 12 months probation.

[81] The case of R v. Kreyger, 2020 ONCJ 424 presented another early example of a case of careless driving causing death under the new HTA provisions. In that case, the defendant went through stop sign, causing a collision that killed the driver of the other vehicle. The defendant entered a guilty plea and the parties proposed a joint submission for a fine of $2000, a four year driving suspension, and a two year probation order. The Court reinforced the offender’s circumstance as an indigenous person and imposed the joint submission.

[82] Although not cited by the parties, the case of R v. Hiebert, 2022 ONCJ 47 is another example of a case decided under the current legislative scheme. In that case, the Court was again presented with a joint submission in a circumstance where the offender failed to stop at a stop sign, struck another vehicle and killed the driver. The Court adopted the joint submission on the guilty plea to careless driving causing death and imposed a fine of $4000, coupled with a two-year probation order and a three year driving prohibition.

[83] Finally, a recent but unreported case from the Ontario Court of Justice in Kitchener that occurred on January 10, 2023 provides some assistance. In R v. H (R), the Court was presented with a joint submission proposed by the Crown and Defence in a case involving a 17 year old driver who drove through a well-marked stop sign and struck another vehicle, causing a major collision. One of the vehicles involved in the collision was driven by a mother with her three children in the vehicle. Two of the three children, ages 10 and 12 were killed. The Court endorsed a joint submission between the Defence and the Crown for a fine in the amount of $6000 and a 3 year driving suspension.

[84] The cases of R v. McBride, [2010] YKTC 136, R v. Matta, [2010] YKTC 128 and R v. Biondelli, [2006] YKSC 16, all emanate from the Yukon Territorial Court or its related appeals court. Each of the cases represented an example of careless driving in which a death occurred. Counsel presented these authorities to demonstrate that in each case, the Court determined that a short conditional sentence of imprisonment, to be served on house arrest, from between 30 to 90 days was appropriate.

[85] In Ontario, a conditional sentence of imprisonment is not available under the POA. Although Defence Counsel suggested that the Court could consider a probation order that would effectively stand in the place of a conditional sentence by imposing a term of house arrest upon Ms. Miller, to do so would be to impose what has been referred to as a “disguised conditional sentence”. Imposing such a sentence would constitute an error of law. R v. Bankay, 2010 ONCA 799 at para. 2, R v. Mohenu, 2019 ONCA 291 at para. 6.

[86] In my view, two other cases are worthy of note in assessing the sentencing range. This first is the case of R v. Martinez, [1996] O.J. No. 544 (C.A.) (“Martinez”).

[87] In Martinez, the Ontario Court of Appeal dealt with a sentence appeal following a guilty plea by Mr. Martinez to careless driving under the HTA. The trial judge imposed a sentence of 90 days jail coupled with one year of probation in circumstances where the motorist drove through a stop sign and collided with another vehicle, killing the driver. The Court of Appeal described the blameworthy conduct leading to the collision as being the product of “momentary distraction or preoccupation” which caused Mr. Martinez to drive without due care or attention. The appeals court, at para. 13, found that the trial court erred by not affording sufficient weight to the mitigating factors:

In our view, the appellant is at the opposite end of the spectrum from the worst offender in the context of careless driving and this should have been taken into greater account by the trial judge notwithstanding the tragic consequences…”

[88] In the result, the Court varied the 90 day sentence and imposed a sentence of 20 days custody (time served), and one year probation. It described this as a “fit sentence” that aligned with the sentencing principles. Apart from the acknowledgment of 11 days of time-served in custody that is found in DeFreitas, Martinez represents the only authority presented by either party in which a traditional jail sentence was imposed or endorsed for careless driving causing death during a contested proceeding.

[89] The final case that is of assistance is R v. Stupar, 2015 ONCJ 350 (“Stupar”). In Stupar, the Court was asked to consider a sentencing in a circumstance where the driver turned right at a red light without stopping and struck and killed a 6 year old child in a cross walk. The driver was a person of upstanding character who had a single entry for speeding on his MTO record from just over 2 years prior to the commission of the offence. As is the case here, the act of killing the child was devastating to Mr. Stupar who was intensely remorseful, and who suffered PTSD and major depressive episodes in the aftermath of the collision.

[90] The Crown in Stupar sought a jail sentence of 4 months and a 2 year driving suspension. The Crown took the position that a failure to impose a jail sentence would not appropriately acknowledge the harm caused. The Defence sought a fine in the amount of $2000, but agreed with the 2 year driving suspension. The sentencing judge ultimately adopted the Defence submission as the sentence in the case.

[91] In summary, apart from the out-of-province conditional sentence cases, of the cases presented by counsel, five emanate from joint submissions. All of these cases except Ballard presented non-custodial sentences.

[92] Three cases presented sentences imposed after contested proceedings. Two resulted in non-custodial dispositions, although DeFrietas acknowledged 11 days of time-served in custody. Only in Martinez was custody imposed. In that case, the Ontario Court of Appeal found that the sentence constituted an error of law and adjusted the sentence down from 90 days to 20 days jail.

[93] Frankly, as counsel avert to, there are few sentencing authorities, particularly in contested proceedings for the offence of careless driving where a death has been caused. There are even fewer cases that consider this offence after the 2018 HTA amendments. This makes it challenging to ascertain the appropriate range of sentence for a case of this nature.

Denunciation and General Deterrence Explained

[94] The case of Stupar, cited previously, presents as a particularly well-reasoned decision. In that case, the Court undertook a careful analysis of a number of principles associated with sentencing under the HTA. In particular, the Court focused on the reality that the fault requirement associated with careless driving is much lower than that required for the criminal offence of dangerous driving. In fashioning the sentence, the Court discussed the importance of assessing driver conduct and the consequences of that conduct separately:

…If we shift the focus from blameworthy conduct to an unfortunate outcome, we risk undermining the effectiveness of denunciation and may improperly rationalize substantial increases in penalty. The harm or outcome caused by a crime and the moral culpability of the offender are two distinct components of the seriousness of the crime. The degree of moral culpability is equated with the degree of responsibility, while the gravity of the offence is left to be considered in the context of the harm caused. Ultimately the sentence must be proportionate to the seriousness of the offence as determined by these two distinct variables. Where two offenders engage in identical risk-taking conduct their moral blameworthiness cannot differ simply because chance produced different outcomes.

R v Stupar, 2015 ONCJ 350 at para 60.

[95] The conceptual difference between blameworthy conduct and the tragic outcome of that conduct that was emphasized by the Court in Stupar is important. As the Supreme Court has emphasized, denunciation is intended to address conduct, not consequences:

The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished…

R v. M. (C.A.), [1996] 1 S.C.R. 500 at para 81.

[96] Denouncing the conduct and not the consequences ensures that the reduced fault requirement associated with the offence of careless driving under the HTA is also properly tied to the level of moral blameworthiness for the purpose of the proportionality inquiry. R v. M.(C.A.), ibid. To state it otherwise, the extent to which the driving was careless depends on the acts or omissions of the driver, not on the consequences of those actions.

[97] Nonetheless, as the Court in Stupar also points out, the grave and tragic consequences of the careless driving causing death must also be taken into account in determining a fit sentence. This reality is observable in the context of Criminal Code offences as well. For example, sentences for impaired driving causing death are much higher than for impaired driving where no death or injury occurs. The blameworthy conduct is the same. The consequences are very different. Stupar at 39. See also R v. Muzzo, 2016 ONSC 2068.

[98] In a sense, the sentencing principle of general deterrence can be viewed as a somewhat broader principle than that of denunciation. General deterrence can address both the conduct and the outcome by sending the message to the public in a case such as this that where a driver engages in texting and driving, she knowingly invites a tragic outcome. Where such an outcome ensues, it will be met with a significant penalty. The goal of deterrence is to change behaviour. In order to deter appropriately, the sentence must be such that it would lead others who are tempted to text and drive to abstain from doing so, lest they should also face a similar sentence.

[99] While the principles of general deterrence and denunciation both play a role in this sentencing, they must not be overemphasized. To do so risks the imposition of a sentence that is disproportionate and unbalanced.

Sentencing Analysis in this Case

[100] Here, the Crown asks the Court to impose both the maximum jail sentence and the maximum driving prohibition available at law. As may be obvious from the foregoing review of the law, this position is not supportable and must be rejected.

[101] To impose the maximum sentence available at law would represent a clear error of law. Such a sentence would be profoundly disproportionate and completely out of alignment with the sentences imposed by other courts in cases involving guilty pleas to careless driving causing death.

[102] At one time, the imposition of a maximum sentence was reserved for circumstances where the very worst offender committed the very worst version of the offence at issue. While that proposition no longer governs, the theory that it rests upon remains valid. It is, in essence, a proposition based on the proportionality principle. R v. M.L. 2008 SCC 31 at para. 22. The circumstances of the offender must be balanced against the circumstances of the offence. Here, with the exception of the date-blunted prior HTA entry for using or holding a hand-held communication device, Ms. Miller’s personal circumstances are entirely mitigating, as is the guilty plea itself.

[103] While the consequences of the offence have been devastating, and as much as the act of texting while driving is a highly dangerous practice that must be denounced and deterred, it would not be possible to conclude that the driving conduct here constitutes the worst-case scenario. After all, the parties themselves agreed to the facts which evidence that the conduct here involved a “brief text” which was “briefly distracting”. There was no evidence of protracted messaging, excessive speed, ongoing inability to control the vehicle, bad driving, racing, aggressive driving or impairment. In that sense, there is an absence of aggravating features that might otherwise have changed the calculus.

[104] To the uninformed, it would be easy to draw a conclusion that in comparison to the sentence proposed by the Crown, the actual sentence that will be imposed by the Court in this case is inadequate and one that fails to appropriately account for the immense tragedy involving the death that occurred in this case.

[105] It is therefore necessary to re-emphasize a critical point: The sentence imposed by the Court in this case cannot be seen in any way to represent a valuation of the remarkable life that has been lost. Taking a sentencing position that unnecessarily inflates expectations by recommending a maximum sentence in circumstances where imposing such a sentence would constitute an obvious error of law runs the risk of undermining public confidence in the administration of justice.

[106] The real difficulty in this sentencing is obvious: Objectively, Ms. Miller was not close to being the worst offender. Although the outcome of the driving conduct was completely devastating, the conduct that gave rise to that outcome cannot be described as the worst offence. Having said that, the driving conduct here was bad. It must be denounced and future motorists must be deterred. The proportionality analysis, and hence the sentence, reflect this reality.

[107] Here, Ms. Miller’s carelessness consisted of texting while driving. This action involved an obvious invitation of risk. That reality is aggravated by the fact that in this case the inattentive driving occurred on a roadway under construction, and Ms. Neville, as a cyclist, was a vulnerable road user as defined at s. 130(6) HTA. Nonetheless, Ms. Miller’s failure to apply due care and attention was not prolonged. It was, by agreement of the parties, brief. Accordingly, the moral blameworthiness of Ms. Miller is clear, albeit somewhat attenuated.

[108] Having said that, two further elements are offered for consideration:

[109] First, in my view, had it been available, as the out-of-province cases cited by the Defence suggest, an appropriate sentence in this matter might well have involved a conditional sentence of imprisonment served under house arrest, with full and enforceable GPS-based offender monitoring. In my view, such a sentence could have been sufficiently denunciatory and deterring, while also appropriately addressing other sentencing principles including, potentially, restraint. R v. Proulx, [2000] 1 S.C.R. 61.

[110] Regrettably the Ontario POA does not permit the imposition of a conditional sentence. This sentencing-tools gap is a problematic aspect of the regulatory framework in the Ontario legislation. As amended in 2018, the HTA imagines the potential of increased and significant jail sentences for persons who cause death through careless driving. The closer a regulatory sanction comes to mirroring the criminal sanction, the more compelling is the case for access to the full range of sentencing options available in the Criminal Code.

[111] Second, as indicated, the restraint principle enumerated in sections 718.2 (d) and (e) of the Criminal Code should apply to sentencing in the regulatory environment. The restraint principle suggests that the imposition of a jail sentence should be reserved for cases where no other possible sentence could serve the ends of sentencing. Imprisonment is a sanction of last resort. Furthermore, where jail is imposed, the very least amount of jail that could serve the sentencing aims must be imposed. That cautionary note speaks particularly clearly in a case where the offender is serving a first sentence of incarceration. Although Ms. Miller has prior HTA entries on her MTO record, her driving record, for the most part, is not particularly aggravating. The restraint principle is clearly engaged here.

CONCLUSION

[112] Considering the many mitigating factors, and the clear aggravating factors, and considering the sentencing principles outlined, in my view the only fit sentence here is one of incarceration. To impose a sentence that only involved a fine or some lesser sentence in these circumstances would risk sending the wrong message. Here, the sentence must not only denounce the conduct, it must deter other motorists from engaging in texting while driving.

[113] Set off against this requirement are the clear requirements for restraint and parity. The sentence of jail that is imposed must engage the least incarceration possible to give effect to the sentencing principles.

[114] In my view the sentence that balances these considerations is one of 45 days jail. As a review of the authorities notes, by far and away, the majority of careless driving causing death cases cited by the parties, and reviewed by the Court have resulted in non-custodial sentences. The sentence imposed here more than doubles the custodial sentence that the Court of Appeal imposed in Martinez, which was decided before the Legislature added the statutory aggravating circumstances that have been discussed. In the context of sentences involving this regulatory offence, 45 days jail represents a significant denunciatory sentence, but not one that is intended to be crushing.

[115] I decline to place Ms. Miller on probation. Probation primarily addresses rehabilitation and potentially other goals associated with protection of the public. In the circumstances of this case and this offender, there is no requirement to address either objective.

[116] Finally, Ms. Miller’s driver’s licence is hereby suspended for a period of 2 years. Melissa Miller shall not operate a motor vehicle on any street, road, highway or other public place for a period of 24 months.

Released: February 10, 2023

Signed: Justice M.T. Poland