Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 04 15 COURT FILE No.: Windsor 23-81102028

BETWEEN:

HIS MAJESTY THE KING

— AND —

TREVOR HOSIE

Before: Justice C. Uwagboe

Heard on: December 29, 2023, February 22 and March 19, 2024 Reasons for Sentence released on: April 15, 2024

Counsel: D. Greco, for the Crown N. Rooke, for the Defendant Trevor Hosie

Reasons for Sentence

Uwagboe J.:

Introduction

[1] On May 6, 2023, Trevor Hosie made a series of irresponsible and indeed criminal decisions that led to the unfortunate and untimely death of the victim of his crime, Mrs. Rosemary Lopetrone.

[2] Mr. Hosie was observed by witnesses to be driving erratically prompting calls to the police. As a witness was on the phone with 911, Mr. Hosie was observed to cross the centre median into oncoming traffic and crash his vehicle head on into the vehicle driven by Mrs. Lopetrone. She died as a result of injuries she sustained from the collision caused by Mr. Hosie.

[3] Mr. Hosie pled guilty before me on December 29, 2023, to one count of impaired driving causing death and one count of failing or refusing to provide a sample.

Circumstances of the Offences

[4] Mr. Hosie purports to have taken his mother’s Jeep Cherokee with the intent of washing the vehicle and returning it to his mother.

[5] At some time after he left the home to attend the car wash, Mr. Hosie made a decision to attend at a friend’s home and visit. It is unclear how long after he left his mother’s home that he made that decision, but he made the decision to attend there to visit prior to washing the car.

[6] During the visit with his friend, Mr. Hosie maintains that he was offered marijuana. Mr. Hosie made the decision to consume the marijuana that he was offered. It is unclear how much of the marijuana he consumed. Mr. Hosie believes that this consumption of marijuana is the cause of the 1.7ng/ml of fentanyl that was found in his blood six and‑a‑half hours (6½ hours) after the collision. I will explore this further in a moment.

[7] After consuming the marijuana, Mr. Hosie noted that he began to feel unwell. It is unclear how long after feeling unwell that Mr. Hosie made the decision to get into his mother’s vehicle and drive, but it is a choice that he made, notwithstanding that he attributed the feeling of being unwell to the consumption of the marijuana.

[8] Mr. Hosie was observed to be weaving in traffic and driving erratically. He was observed by witnesses to be falling asleep at the wheel. One witness honked to wake him as he was driving. He was observed to pull over at times and then start driving again. The observations are consistent with Mr. Hosie’s account that he “wanted to pull over to be sick.” Regrettably, that is not a decision that Mr. Hosie followed through with. Instead, he decided to continue driving. This decision, the last in a series of unfortunate and criminal decisions made by Mr. Hosie, resulted in him crossing the centre line and causing the collision, killing Mrs. Lopetrone.

[9] It is important to note that this was no accident. Sadly, this tragedy is the predictable outcome of the series of decisions made by Mr. Hosie on May 6, 2023.

[10] In the moments following the collision, Mrs. Lopetrone complained of pain and was transported to hospital where she succumbed to her injuries.

[11] Mr. Hosie was rummaging through his vehicle, he appeared dazed and had pinhole sized pupils. He was observed to nod off just prior to the standard field sobriety test.

[12] Mr. Hosie was read a drug demand and refused to provide the police with a urine sample. Even post-collision, another decision made by Mr. Hosie. I will address this again later in these reasons.

[13] Mr. Hosie requested EMS due to neck pain and was taken to hospital where blood samples were taken for a toxicology report.

[14] The toxicology report disclosed 1.7ng/ml of Fentanyl in his blood.

Victim Impact Statements

[15] I was provided with 20 victim impact statements in 2 volumes of materials. Some were read in court.

[16] The victim impact statements served to humanize this event and assist me to understand just who Mrs. Rosemary Lopetrone was and appreciate the tremendous loss that is suffered by so many as a result of her passing.

[17] I read each statement and some more than once. It must have taken a significant amount of strength to communicate in writing your perspectives, memories, feelings and expressions of heartbreak.

[18] I was impressed by the statements. They included statements from the immediate family of Mrs. Lopetrone as well as her extended family and friends. The authors of the victim impact statements served as ambassadors to the larger Windsor community also impacted by the loss of Mrs. Lopetrone.

[19] I learned about a kind-hearted and giving 70-year-old woman who would generously give of her time to the less fortunate, the sick and people in retirement homes. She was a staple in the community. She loved to laugh and generally be there for her loved ones. Many of the parties had very recent interactions with her and I have come to appreciate that this is the way she was. She was the cornerstone of her family.

[20] I learned about a friend that would never forget your birthday, enjoyed celebrating and then going to the Casino to play slots. I learned about a Zia that would step in when tragedy struck and act as a surrogate for her loved ones. She would connect the family by sharing stories about her Italian family ancestry, preserving a proud history.

[21] I learned about a sibling that was always there no matter what. She was adventurous and loved to travel.

[22] I learned about a proud mother that was a strong role model for her children leaving behind a legacy of resilience, kindness, empathy, strength, thoughtfulness, generosity and love.

[23] I learned about a love story almost 54 years in the making. The simple joy of experiencing with her spouse the fruits of their love. Enjoying meals together, talking to one another and still dancing together. I was particularly impacted by the profound loss expressed in few words by Mr. Frank Lopetrone. He described Mrs. Lopetrone as his “angel” and described the life that she brought to their home. The void left by her loss is nothing short of devastating. He, like so many others, has been deprived of many more years with her due to the decisions made by Mr. Hosie.

[24] The grief expressed in all of these statements was heart-breaking. The psychological and emotional trauma was palpable and cannot be overstated. Some even entertained the thought of a path to forgiveness for the conduct of Mr. Hosie which is no doubt a testament to the kind-heartedness of the person that Mr. Hosie has taken.

[25] In the face of such overwhelming grief and tragedy, I do feel powerless in that there is nothing I can do to cure the pain or undo the loss suffered by these families and by extension this community.

[26] A consistent theme in the victim impact statements was for accountability. Mr. Hosie will be held to account for his decisions that led to his actions on May 6, 2023.

Position of the Parties

The Crown

[27] The Crown seeks a custodial sentence in the range of 8 – 10 years in spite of the authorities to the contrary followed by a 15-year driving prohibition. The Crown references a number of “holes” in the narrative offered by Mr. Hosie in the Pre‑Sentence Report (PSR), compounded by a lack of corroboration from any collateral sources. The Crown submits that Mr. Hosie was not forthcoming with the PSR writer and disagrees with the assertion that he does not suffer from substance abuse issues. The Crown further submits that the facts are aggravating, the impact on the victims is aggravating and this Court can and should depart from the authorities that suggest a lower range of sentence for these offences reminding the Court that the range of sentence is not a “straight jacket.” The gravity of the offence and the moral blameworthiness of Mr. Hosie is high.

The Defence

[28] Mr. Rooke on behalf of Mr. Hosie submits that the appropriate range of sentence is 4-6 years and that there is no reason at law for this Court to depart from that range of sentence for these offences. The Defence advocates for the lower end of that range. The Defence concedes that the facts are aggravating and that the loss suffered by the victims is also aggravating. The Defence submits that Mr. Hosie was not aware that he was consuming Fentanyl but was aware that he was consuming marijuana and decided to drive. The Defence further submits that the PSR is neutral and although Mr. Hosie has a criminal record, he has no antecedents for these offences.

Common Ground

[29] Both parties agree that the sentencing principles of denunciation and deterrence are paramount in this case. Both are of the view that the facts are aggravating, the impact on the victims is aggravating and that the moral blameworthiness of Mr. Hosie is high.

[30] The parties differ on the range of sentence that should apply here.

Pre-Sentence Report (PSR)

[31] The PSR contains some context into the background of Mr. Hosie. It sets out Mr. Hosie’s narrative of the events of May 6, 2023, referenced above, and his remorse. I agree with the Crown that the PSR contains “holes” that are worth noting.

Circumstances of the Offender

[32] Mr. Hosie is described as a thirty-six (36) year old offender with a criminal record. He completed grade 12, does not suffer from any mental or physical disability and went on to complete a certificate in trade school.

[33] He is the eldest of two (2) siblings. The PSR references a sister in Calgary that he has occasional telephone communication with. However, during submissions a brother was also discussed who was referenced at the hospital. It is unclear why this brother was not shared with the PSR writer.

[34] Mr. Hosie was born in Hamilton and lived there for a few years until his parents separated when he was 5 years old. He has no relationship with his father and he describes a good relationship with his mother although he also describes minimal contact with her.

[35] He described moving around for work ultimately deciding to become self-employed as a framer in commercial and residential work. No collateral sources were provided by Mr. Hosie for this report.

[36] Mr. Hosie is single and has no dependents.

Record

[37] Mr. Hosie’s criminal record reflected in the PSR includes twelve (12) convictions ranging in severity from failing to comply with dispositions, possessing stolen property, and break and enter to adult convictions for robbery and intimidation. He has served custodial sentences in the past.

[38] He denied domestic violence was a factor in the termination of his romantic relationships, including his most recent. However, Mr. Hosie was not forthcoming with the PSR writer. This Court was advised of additional convictions on his record. Mr. Hosie pled guilty to two offences that were related to intimate partner violence and were outstanding in addition to two (2) other counts at the time that this PSR was authored.

Substance Abuse

[39] Mr. Hosie denied substance abuse issues in the PSR, suggesting his consumption of drugs was infrequent and that his alcohol and drug consumption was not problematic for him. However, his Ministry file information referenced in the PSR does not accord with this account. The PSR writer indicates that Mr. Hosie “was previously charged with other serious offences while under the influence of drugs and alcohol.” The PSR writer goes on to state that “it should be noted that the offender’s current offence and historical conflict with the law have been influenced by substance use.”

[40] It is noteworthy that when I put to Mr. Hosie and his counsel that his record seems to be consistent with someone struggling with addiction that there was no denial of that suggestion.

[41] It is also noteworthy that Mr. Hosie, who purports to use intoxicating substances infrequently, thought that he could drive home when he felt ill after smoking the marijuana he was offered. He in fact was high on fentanyl, a sensation that is clearly different from a high from marijuana, given his reaction, and the 1.7ng of the substance that registered in his blood over six (6) hours after the collision.

[42] I find this inconsistency in Mr. Hosie’s narrative surrounding his substance abuse issues indicative of his lack of insight into his conduct and how his choices have led to this tragedy.

[43] The “holes” contained in the PSR demonstrate that Mr. Hosie was less than forthcoming with the PSR writer. As a result, the PSR has little value in assisting the Court to fully appreciate the circumstances of Mr. Hosie, in any meaningful way, as they relate to these offences.

Principles of Sentencing

[44] The fundamental purpose and principles of sentencing are set out in section 718 of the Criminal Code of Canada.

718 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: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community.

[45] Section 718.1 states that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[46] Section 718.2(a)(iii.1) states that evidence of a significant impact on the victims of the offence shall be deemed to be an aggravating factor.

[47] Section 718.2(b) states that a sentence should be similar to sentences imposed on similar offenders, for similar offences, in similar circumstances.

[48] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Relevant Case Law

[49] In addition to these sentencing principles, previous cases provide guidance on how to arrive at a fit sentence in cases such as these.

[50] In addressing the sentencing parameters, the Court in R. v. Muzzo, 2016 ONSC 2068 stated that “one measure of the seriousness of a particular kind of offence is the maximum penalty.” The fact that Parliament allows for a life sentence for this particular type of offence indicates Parliament’s intent that these types of offences should be treated seriously by the courts.

[51] The Court in R. v. Muzzo, 2016 ONSC 2068 went on to state, “of course it does not follow that the maximum penalty will be imposed in any given case.” Similar to the case in R. v. Muzzo, 2016 ONSC 2068 none of the parties in the case at bar rely on any authority for support of such a sentence and neither submit that such a sentence would be appropriate in this case.

[52] In that case, Mr. Muzzo pled guilty to four counts of impaired driving causing death. Mr. Muzzo operated his vehicle while having three times the legal limit of alcohol in his blood. His excessive speed and extreme intoxication led to him failing to stop for a stop sign killing 4 people including three children. The Court ultimately determined that a 10‑year jail sentence and a 12 year driving prohibition would be a just and appropriate sentence in that case.

[53] The Court in R. v. Fallows, 2017 ONSC 7053 similarly referenced the absence of an upper limit for these types of cases. In that case, the accused was found guilty at trial of impaired operation causing death; over 80 operation causing death; dangerous operation of a motor vehicle causing death; and criminal negligence causing death. The Court found Mr. Fallows to be misleading and to understate the number of drinks he consumed that evening. Mr. Fallows exceeded the legal limit of alcohol in his system by more than double. In the immediate aftermath of the collision he switched places with the deceased and presented himself as the passenger in an effort to escape liability for his actions.

[54] The decision highlighted that courts “increasing sentences reflect society’s abhorrence for the often tragic consequences of drinking and driving and its concern that the problem of drinking and driving has persisted.”

[55] Mr. Fallows was sentenced to 9 years and a 12-year driving prohibition in that case.

[56] Many of the cases I reviewed are distinguishable on the facts from the case at bar.

[57] In R. v. Simms, 2021 ONSC 3829, the Court imposed a sentence of 9 years with a 30-year driving prohibition. The offender in that case exceeded the legal limit by more than double. He rear ended a vehicle then crossed the centre line resulting in a head on collision, killing the driver and injuring three other people. Mr. Simms had 3 prior convictions related to impaired driving.

[58] In R. v. Stahn, 2023 ONSC 2653, a sentence of 8 years imprisonment with an 11-year driving prohibition was imposed for the offender who had two previous convictions for impaired driving. He had elevated readings and crossed the centre median causing the death of the oncoming driver. He was found to have limited prospects for rehabilitation.

[59] In R. v. Brown, 2019 ONSC 4242, a sentence of 5 years imprisonment was imposed with a driving prohibition of 5 years. In that case, Ms. Brown had a history of substance abuse issues and a prior conviction for impaired driving. Ms. Brown was intoxicated by alcohol and drugs while driving. She crossed into oncoming traffic and instantly killed the driver of the other vehicle who was a mother and grandmother. Ms. Brown was also on bail for impaired driving, failing to remain at the scene and other drug related offences.

[60] In R. v. Osman, 2019 ONSC 327, a sentence of 5 years imprisonment was imposed for a 22-year old offender for impaired and criminal negligence causing death. The victim was the passenger in his vehicle. He was found guilty after trial. The Court found that he was “unlikely to re-offend.” His youth and remorse played a significant factor in the disposition.

Aggravating and Mitigating Factors

Aggravating Factors

[61] In the case at bar there are a number of aggravating factors.

[62] First and foremost, it is aggravating that there was a loss of life. Mrs. Lopetrone was a pillar in her community. She will be sorely missed. This loss is further aggravating because of how easily this tragedy could have been avoided. The seriousness of this offence is significantly high.

[63] I find that there is significant impact on the victims of this crime. This is evidenced by the significant number of victim impact statements filed as well as all of those in her community that she touched who have not expressed in writing their loss to the Court. Anytime there is a loss of life due to impaired driving there is a profound impact on the entire community.

[64] The many poor decisions made by Mr. Hosie leading to this tragic event are aggravating. It was clear that what he consumed was not agreeing with him and impacted his ability to drive safely. While he was driving there were a number of opportunities to pull over. Any number of decisions could have been made to avoid this tragic outcome. I find Mr. Hosie’s recklessness to be aggravating.

[65] The fact that he was a G2 driver and should never have considered taking any amount of intoxicating substance while driving, yet he chose to do so is aggravating.

[66] I find Mr. Hosie’s refusal to provide a sample of his urine, clearly in an effort to escape culpability for his intoxication to be aggravating. It is of note that this was post‑collision when seriousness of the circumstances he caused ought to have been clear to him. This is not attenuated by his intoxication. He had the presence of mind to take steps to avoid detection of his level of intoxication. It is not until six and-a-half (6½) hours later that findings in relation to his intoxication are able to be made. Even at that time a considerable amount of fentanyl was still in his blood stream. I find this to be aggravating.

[67] In the face of the opportunity to be forthcoming in the PSR, to the writer and this Court about his antecedents and his current circumstances as they relate to substance abuse, Mr. Hosie chose to be misleading. I find that to be aggravating.

[68] His record, including his recent history of substance abuse that brought Mr. Hosie in conflict with the law, is aggravating. His lack of insight into how his struggles with substance abuse has impacted his life and those around him is troubling to this Court.

[69] I find Mr. Hosie’s moral blameworthiness to be high.

Mitigating Factors

[70] In considering the mitigating factors in this case, I am mindful of the fact that Mr. Hosie had intended to plead guilty at the outset and saved the Court and the victims of this crime the pain and emotional stress of a trial. I give him credit for that.

[71] Notwithstanding that I have found Mr. Hosie to be purposely misleading in relation to his substance abuse issues, I do find his remorse to be genuine both in the PSR and to this Court. I give him credit for that.

Analysis

[72] Having reviewed the jurisprudence provided by the parties, I am reminded of the limitations involved in the sentencing process, particularly how they relate to cases such as this. The Court in R. v. Fracassi, 2017 ONSC 12, set out the limitations as follows;

(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the events. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache they began the day with; (2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentences adhere to the purposes and principles of sentencing set out in subsections 718 to 718.2 of the Criminal Code and that it be fit for the purpose – neither too lenient nor too harsh – in order to maintain the confidence of the broader public; and (3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.

[73] I am alive to the submissions of the Crown. The message is not getting through. It is not lost on me that Mr. Hosie’s plea was one of four on the date that he pled that involved impaired driving and collisions in this community. They did not involve deaths but that was only by happenstance. The potential for death with impaired driving is high and predictable. I do believe that in cases such as this, a conviction after trial may attract sentences in the range sought by the Crown.

[74] The elevation in sentencing outcomes is consistent with public condemnation for this conduct. The community cannot become desensitized to the carnage caused by impaired driving. Sentences must deter like-minded persons from participating in this conduct and specifically deter those who may otherwise appear before the Court repeatedly for impaired driving offences.

[75] I have found the gravity of this offence and the degree of responsibility of Mr. Hosie to be high. I am reminded by the authorities provided that a sentence must not exceed what is appropriate, given the moral blameworthiness of the offender. R. v. Martin, 2018 ONCA 1029 As I mentioned above, I find Mr. Hosie’s moral blameworthiness to be high.

[76] Mr. Hosie has pled guilty and intended to do so early on in this process. I give him credit for that, and I do find his remorse for his conduct to be genuine.

[77] Sentencing is a fact-specific exercise and not an exact science. R. v. Ramage, 2010 ONCA 488 As set out above, no one sentence is clearly preferable to all others. Each case turns on its own facts. I must be mindful of the principles of sentencing in assessing the facts of those cases that are most like the circumstances before this Court, and the similarities, or lack thereof, between those offenders and the circumstances of Mr. Hosie.

[78] When I take into account the authorities filed and balance all of the aggravating and mitigating factors on this plea, in my view, a sentence of 6 and-a-half years in the penitentiary, less pre-trial custody, concurrent on both counts, is a fit custodial sentence for this offence and this offender. That will be followed by a 10-year driving prohibition commencing upon his release from custody.

[79] Mr. Hosie has remained in custody since the offence. He has served 345 actual days. I grant him standard enhancement on his pre-trial custody bringing his total pre‑trial custody to 518 days.

Conclusion

[80] Mr. Hosie please stand:

(1) You will be sentenced to six and-a-half (6½) years in the penitentiary less your pre-trial custody; (2) You will be prohibited from operating a motor vehicle on any road, street, highway, or other public place for a period of ten (10) years following your release from custody; (3) You will provide a sample of your DNA to the Ontario Provincial Police for inclusion in the National DNA Databank; and (4) There will be a victim fine surcharge in the amount of $200 on each count.

[81] I sincerely hope that you take this time to reflect on your conduct and address your relationship with substances and their impact on your offending behaviour.

Released: April 15, 2024 (Original Signed by Justice C. Uwagboe) Justice C. Uwagboe