Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: January 11, 2024

Between: HIS MAJESTY THE KING

— AND —

BRIAN ARSENAULT

Before: Justice A. Dellandrea

Reasons for Sentence

Date of Reasons: January 11, 2024

Counsel: Ms. J. Vlacic, counsel for the Crown Mr. R. Sahota, counsel for the accused Brian Arsenault

DELLANDREA J.

I. Intro and Overview

[1] In the early morning hours on Friday, October 21, 2022, Brian Arsenault was driving his Chevrolet Silverado along his usual route to work at Royal Containers, at 80 Midair Court in Brampton. He discovered unexpected construction which forced him to do a U-turn and find a different route. He proceeded a block north, to Dearbourne Boulevard.

[2] While driving eastbound on Dearbourne Boulevard, Mr. Arsenault failed to stop at a stop sign at a marked “T” intersection. It was there that he struck a pedestrian, Ms. Christine Williamson, who was attempting to cross Dearbourne Boulevard at Dorchester Drive.

[3] Ms. Williamson sustained multiple fractures to her left leg and a fracture to her lower back.

[4] Instead of stopping after the accident to call for help for Ms. Williamson, Mr. Arsenault left the scene, and went to work.

[5] It was later learned that Mr. Arsenault had made a false report to a Collision Reporting Centre at 12:20 that day, claiming that he had observed damage to his parked vehicle.

[6] On November 30, 2023, Mr. Arsenault pleaded guilty before me to the offence of Fail to Stop after an accident when he knew or was reckless as to whether the accident resulted in bodily harm to another person, contrary to s. 320.16(2) of the Criminal Code.

[7] Ten days after the incident on November 1, 2022, following the investigation by Peel Regional Police, Mr. Arsenault was arrested. He immediately provided an inculpatory statement, admitting to his flight from the collision scene.

[8] I must now determine a fit sentence for this offence.

II. Positions of the Parties

[9] It is not disputed that a reformatory length sentence of imprisonment is required in this case in order to express the paramount sentencing principles of denunciation and deterrence which apply in this case. The primary disputed issue at this sentencing hearing is whether the custodial sentence should be served at a detention centre or conditionally in the community.

[10] On behalf of the Crown, Ms. Vlacic submits that I should sentence Mr. Arsenault to a carceral sentence of 15 months, followed by a two-year driving prohibition and a DNA Order.

[11] On behalf of the defendant, Mr. Sahota asserts that an 18-month conditional sentence of imprisonment under strict house arrest conditions followed a 1-year driving prohibition is a more appropriate sentence.

[12] It is beyond dispute that the events of October 21, 2022 have damaged the lives of two families – perhaps irreparably. Most notably the Williamson family, who suffered the terrible shock of Ms. Williamson having been struck by a vehicle, seriously injured, and then left at the scene where she was hurt.

[13] Regrettably, the exercise of fashioning a fit sentence does not include any ability to repair the pain and harm that Ms. Williamson has experienced. Rather, it requires the application and balancing of the governing sentencing principles to the unique facts of this case, to determine a just, fair and proportionate sentence for Mr. Arsenault’s crime.

III. Sentencing Principles

a) General sentencing principles and ranges

[14] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must also reflect the principles and purposes of sentencing that are contained in the Criminal Code and reflected in the guiding sentencing caselaw.

[15] The maximum punishment for the offence of Fail to Stop knowing or being reckless about an accident having caused bodily harm is fourteen years’ imprisonment. This is a serious offence for which the inherent moral blameworthiness is high.

[16] The principles of general deterrence and denunciation are paramount for driving offences, particularly those involving collisions involving potential human harm. As Justice Perkins-McVey observed so astutely in Wieczorek, 2010 ONCJ 582, at para. 64:

The duty imposed under s. 252 is not an onerous one – a person involved in an accident must remain at the scene, identify him or herself and give assistance to any injured party. This allows for any criminal investigation to occur without delay, resolves issues of civil or criminal liability. Just as importantly, there is a simple duty as a human being to show care and respect for those who may have been injured or killed – to remain until authorities determine what has happened.

[17] However, while denunciation and deterrence are the primary sentencing principles to be applied, every case must be decided on its own facts. As the Alberta Court of Appeal stated in Hindes, 2000 ABCA 197 at para. 17:

There is a continuum in hit and run cases where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. At the other end of the scale are those cases where the accused acted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability.

[18] The essence of the criminal misconduct of Failing to Remain under s. 320.16(2) is the particular behaviour which is so plainly “contrary to any standard of decency and humanity” – namely the cowardly flight from an accident in which it would have been obvious that another person was potentially seriously hurt: R. v. Ramdass, [1982] O.J. No. 177 (ONCA).

[19] Counsel are in agreement that the authorities provided by both parties establish a range of available sentences for this offence which spans intermittent sentences (at the low end) up to carceral sentences at the upper reformatory range (at the high end) as well as conditional sentences of imprisonment of between 9 months up to 2 years’ less a day. [1]

[20] In this case, it is Mr. Arsenault’s serious criminal misconduct of having fled the scene of his collision with Ms. Williamson knowing that she may have been hurt for which he is to be sentenced. As was discussed during the sentencing submissions for this matter, the causation of Ms. Williamson’s physical injuries is not an element of this offence, nor is Mr. Arsenault to be sentenced for the infliction of this harm.

[21] This is an important intellectual and legal distinction which I understand may be difficult for some to accept. However it is a distinction mandated by both statutory and common law, which I am bound to maintain and apply: Suter, 2018 SCC 34; Coates, 2023 ONSC 3392, at paras. 55-70; Oliviera, 2016 ONSC 120 at para. 27.

b) Aggravating and mitigating circumstances

[22] In addition to considering the statutory guidelines of ss. 320.16(2) and 718.1 of the Criminal Code as well as comparable sentencing precedents, I must of course consider the contextual aggravating and mitigating circumstances of this case which inform the calibration of an appropriate sentence for Mr. Arsenault’s offence.

i) Aggravating factors

Victim Impact

[23] Ms. Williamson was left lying on a roadway before dawn, badly injured and alone. Her feelings of pain, fear and abandonment for being left in such a state in those moments must have been excruciating. There can be no doubt that the impact of Mr. Arsenault’s offence on Ms. Williamson is a seriously aggravating factor.

[24] I am grateful to have received Ms. Williamson’s victim impact statement directly from her in court. I was able to observe the continued challenges to her physical mobility and likewise to hear directly from her of the profound psychological impact from, in her words being “left lying in the road, like an animal, not knowing if I was dead or alive.” Ms. Williamson went on to describe the impact of Mr. Arsenault’s actions this way:

I was in disbelief that not only did a driver run me down, but he left me lying there in the road. I felt abandoned, left with the fear of being hit again by other vehicles. The defendant drove away hastily, not even stopping, or caring that he could have killed me. As each day passes, I ask myself why, why did he just leave, why didn’t he try to help me. Every time I think about what happened I feel intensely emotional, angry and sad, that a human had such disregard for another human life.

Bad Driving

[25] The circumstances surrounding Mr. Arsenault’s flight from the scene of the accident also include additional elements of aggravation. These circumstances include the offender’s admission to having been driving over the speed limit by a margin of at least 10 and up to 50 km/hr over the posted speed limit, as well as his failure to stop at the stop sign marking the intersection where Ms. Williamson was attempting to cross. While these aspects of Mr. Arsenault’s bad driving that day are not themselves elements of the offence of Fail to Remain, they exacerbate his careless inattention to his driving as well as to Ms. Williamson’s needs following the accident to some degree.

Record

[26] Mr. Arsenault has a single, unrelated and very dated entry on his criminal record. It does not amount to material aggravating factor in this case.

[27] Mr. Arsenault has a number of entries on his Highway Traffic Act record for failing to produce various documentation as well as a single very dated entry (1989) for Careless Driving as well as one entry (1998) for speeding. Mr. Arsenault’s driving record aggravates his misconduct, albeit only slightly.

False Accident Report

[28] The most significant aggravating factor in this case is Mr. Arsenault’s decision to make a false report to a Collison Reporting Centre on the afternoon of the incident. In that report, Mr. Arsenault claimed that he was surprised to have discovered damage to his truck. Upon his arrest, Mr. Arsenault admitted to police that he thought he had hit something on his way to work.

[29] Mr. Arsenault’s decision to lie to public officials about the suspected cause of damage to his truck was a deliberate and callous deception which was undoubtedly aimed at deflecting attention and responsibility away from himself. This deception exacerbates his insensitivity and disregard for the wellbeing of Ms. Williamson, whom he ought to have known might have been injured based on the damage to the front corner of his vehicle.

[30] Delayed and false reporting following flight from serious accidents are recognized to be seriously aggravating factors on sentence: Hindes, 2000 ABCA 197; Dhaliwal, [2008] B.C.J. No. 2742, (P.C)., Aman, 2012 ONCJ 654, [2012] O.J. No. 4998 (C.J.).

[31] On behalf of the offender, Mr. Sahota urges me to characterize his client’s false report as “one very poorly formed thought made in panic on the day of the incident.” While acknowledging that Mr. Arsenault’s lie is undeniably aggravating, counsel asks that it be contrasted by his client’s immediate and repeated expressions of profound remorse and acceptance of full responsibility which he offered to the police, probation officer, the court, as well as to Ms. Williamson directly.

[32] I would place Mr. Arsenault’s post-offence conduct in the middle of the Hindes’ continuum for calibrating the moral blameworthiness of his offence. I cannot accept that Mr. Arsenault’s actions were merely the product of momentary panic or a fleeting error of judgment. He made a decision, roughly six hours after the incident, to make a call for the purpose of stating a false complaint. I am prepared to accept that he was feeling some degree of panic as well as confusion and fear about what had occurred when he made that call. It might also be the case that he wasn’t sure exactly what had happened, beyond his having struck something, or someone. However it was not until several days later, when the police came to him – that he chose to tell the truth. In the intervening period of time, Mr. Arsenault remained silent. Mr. Arsenault’s conduct was certainly not the most elaborate or calculated of deceptions, but it is an element of aggravation which warrants emphasis of the principle of denunciation.

[33] What is clear is that Mr. Arsenault did nothing at all to try to get help for the person who he knew that or was reckless as to whether the accident had resulted in bodily harm to. At minimum, he never turned his mind to Ms. Williamson’s plight, or if he did, he chose to make no attempt to account for that possibility by rendering assistance. Both scenarios reflect a failure of human decency on his part.

[34] Ms. Vlacic argued that the location of the incident, in what she characterized as a “construction zone” should be considered an aggravating feature, as it would have been less likely that the victim would be found following the collision. She argued that this factor was on par with the circumstances of Coates, 2023 ONSC 3392, supra where the court held that the offender’s failure to stop endangered the victim’s life, given the remoteness of the location where the victim had landed (well off the roadway in a remote location at night).

[35] Respectfully, I cannot agree with this submission. The construction which Mr. Arsenault encountered that fateful morning was on a completely different roadway (East Drive) which he ordinarily took to work. Indeed, it was a result of that construction that the offender had to do a U-turn to leave the construction zone and find an alternate route – which he did, one major block north, along Dearbourne Boulevard. There was no construction along Dearbourne, which was a largely residential neighbourhood. Unlike the circumstances in Coates, here there was a much higher likelihood of the victim’s discovery.

ii) Mitigating factors

[36] Crown Counsel has very fairly acknowledged the compelling mitigating circumstances which exist in Mr. Arsenault’s case as well.

Guilty Plea and Expressions of Remorse

[37] Mr. Arsenault was arrested on November 1, 2022. He expressed his immediate intention to accept responsibility for his actions. Mr. Arsenault promptly retained counsel who took proactive steps to advance his client’s wish to plead guilty at a very early opportunity. His plea of guilt is a very clear expression of remorse.

[38] Mr. Arsenault also communicated his remorse directly to the probation officer who prepared the PSR, to his family, to the court and as well to Ms. Williamson herself. A poignant and personal letter of apology to Ms. Williamson was tendered as an Exhibit on the day of Mr. Arsenault’s plea, a portion of which he read to the victim on the record. In his letter, Mr. Arsenault stated:

The decision I made that morning will haunt me for the rest of my life. I have relived that moment over and over again in my head and I get so angry at myself and sad at the same time just knowing that because of me someone got hurt.

This accident make me carry so much guilt, I am very sorry. … if I could trade places with you I would without hesitation, you did not deserve that. I know my words can’t help you or heal you, but I needed to tell you that I will spend my lifetime reliving that day, that time over and over again, with total regret and anger at myself for not stopping and helping you. This is the worst thing I have ever done, and I don’t know how I will ever forgive myself for that.

[39] I have no difficulty in accepting that Mr. Arsenault’s remorse is genuine, ongoing and profound. It stands in sharp contrast to the profound insensitivity of his offending conduct.

Background

[40] Mr. Arsenault was 54 at the time of the accident. He lives alone but enjoys a close relationship with is family. He assists in the care of his elderly mother as well as in the care of one of his siblings, who uses a wheelchair and requires assisted living. His family depend on him regularly to support their various needs.

[41] Mr. Arsenault has a grade 10 education. He has been employed with the same company for 32 years. A letter submitted from his employer at Royal Containers describes him as a leader within the manufacturing facility, and a “most reliable and valuable employee.” His absence from the company would be considered “truly detrimental” to them.

[42] Mr. Arsenault accepted full responsibility for his offence during his interview with the probation officer and conveyed profound remorse and shame for his actions. He made the same emotional expression directly to the court on the date of his guilty plea.

Character Reference

[43] Mr. Arsenault’s sister, Ruby Sipos, submitted a letter in her brother’s support. In her letter she described her brother as a “kind, soft-spoken, humble and considerate” man who “worries more about others and puts them before himself.” Ms. Sipos described Mr. Arsenault as a very good man who made a very bad choice. She advised that her brother expresses his guilt and shame for the accident frequently with his family, which she feels he will struggle to ever forgive himself for.

Impact of Guilty Plea on Proceedings

[44] The mitigating impact of Mr. Arsenault’s plea includes hastening the finality of the proceedings and sparing the victim, her family, and the justice system the toll and consequent cost of a lengthy proceeding. A three-day preliminary inquiry and potentially a two-week Superior Court Trial in this very busy jurisdiction were avoided by his early plea. Also, Ms. Williamson was spared the unpleasant experience of needing to testify, potentially twice, about this harrowing incident. Mr. Arsenault was presumed to be innocent, and had the right to adjudicate the triable issues which existed. He chose not to and instead pleaded guilty. He is entitled to mitigation for this.

IV. Analysis

[45] The sentencing of Mr. Arsenault is a very difficult task. There are some aggravating factors which place his case at the higher end of the spectrum of gravity, most notably his swift departure from the scene of the accident and making of a false report to explain the damage the same day, rather than having regard and respect for the well-being of another person. Also, the victim’s continued psychological trauma caused by this incident is a notable aggravating factor.

[46] The mitigating circumstances in this case are also significant, and compelling. Mr. Arsenault is essentially a first offender who pleaded guilty at a very early opportunity and has expressed profound and genuine remorse for his actions. It is apparent that he too has been broken by this incident, and will be haunted by it forever. Mr. Arsenault is a hard-working, pro-social member of society who is depended on by his immediate family, and his employer. He clearly has strong rehabilitative prospects and has expressed his desire to make amends by giving back to his community.

a) Conditional Sentence Regime

[47] A conditional sentence is available under s. 742.1 of the Criminal Code where the sentence imposed is less than two years, has no mandatory minimum and is otherwise not excluded. There is no mandatory minimum applicable for Mr. Arsenault’s offence, and the appropriate sentence for his offence is in the range of 12-18 months’ imprisonment, as illustrated by the sentencing authorities provided. Thus a conditional sentence is potentially available.

[48] Section 742.1(a) further restricts the imposition of conditional sentences to circumstances where the court can be satisfied that “the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

[49] I am satisfied that the public would not be endangered by Mr. Arsenault’s service of his sentence in the community. Mr. Arsenault has a very dated, unrelated criminal record and no history of reoffending while on release. He has no history of failing to abide by the terms of court orders. I am confident that the public would not be at risk of danger were Mr. Arsenault to serve his sentence conditionally.

[50] The much more difficult question is whether a conditional sentence order in this case would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2.

[51] There can be no doubt that a jail sentence of some form is required in this case. Fail to Remain under s. 320.16(2) is a serious offence which involves the criminal disregard for one’s own fundamental responsibility and respect for others’ safety. The court and the public have a very strong interest in protecting these interests and therefore strong and clear sentences of denunciation and deterrence are needed.

[52] The primary, guiding principle of sentencing in s. 718.1 is proportionality to the gravity of the offence and the degree of responsibility of the offender.

[53] In the majority of accident cases in which courts have imposed carceral sentences, there were convictions rendered for the offences of both dangerous driving as well as the failure to remain. In circumstances of multiple convictions, the demand for proportionately greater denunciation to account for the causation of the bodily harm occasioned is clear. [2]

[54] Mr. Arsenault is guilty only of the offence of Fail to Remain under s. 320.16(2). The circumstances of his departure from the scene of the accident are reprehensible. Yet the facts admitted to in Mr. Arsenault’s case make it distinguishable to some degree from the facts of both Coates, 2023 ONSC 3392, Forrestall, 2021 ONCJ 121, and Oliviera, 2016 ONSC 120 and Eichler, 2012 ONCJ 480 in which the victims in those cases were tragically struck in circumstances which would have made the likelihood of harm unmistakably obvious to the drivers. In Coates the motorcyclist was thrown 30m from his vehicle, in Oliveira the bicyclist was struck directly from behind, and in Eichler the pedestrian was carried on the hood of the offender’s car before they departed the scene.

[55] To be clear, any form of contact between a heavy moving metal vehicle such as Mr. Arsenault’s truck and an innocent pedestrian such as Ms. Williamson would inevitably be harmful and creates the risk of serious bodily harm to the victim, which is precisely what occurred here. This reality is not to be minimized. Mr. Arsenault admitted to having suspected that he hit something, but to continuing on without doing anything. It may be the case that he was not entirely sure what he had hit. To be sure, this suspicion should have been enough to prompt him to stop and offer help where it was needed, but it also distinguishes his circumstances slightly from some more aggravated forms of this offence.

[56] This was a very difficult decision in which I have wrestled with the significant tension between the compelling aggravating and mitigating factors pulling in opposite directions in some respects. In his panic and confusion Mr. Arsenault made a series of callous decisions on the day of this incident: first to leave the scene of likely human harm, and second to make a false report. The harm occasioned to the innocent victim is permanent and life-altering. When his actions were discovered, he immediately collapsed into profound remorse and grief for his actions. Mr. Arsenault is an otherwise pro-social, hard-working and gentle man who is genuinely sorry for his actions and who I’m satisfied poses no future risk to the community.

[57] Having considered all of the aggravating and mitigating factors in this case, I am satisfied that the principles of sentence, including denunciation and deterrence can be achieved by a conditional sentence order with onerous conditions.

[58] Such conditions will extend beyond the duration of the jail sentence that would ordinarily have been imposed and will include a requirement of community service hours to thereby enhance its deterrent effect.

[59] The Supreme Court of Canada acknowledged in Proulx, 2000 SCC 5 that incarceration will “usually provide more denunciation than a conditional sentence, as a conditional sentence is a more lenient sentence than a jail term of equivalent duration” (at para. 102). The Court went on to observe that a conditional sentence can yet provide a significant amount of denunciation where the duration is lengthened, and the conditions imposed are onerous in order to be sufficiently punitive.

[60] There is a significant difference between remaining in one’s home by choice and being legally confined within it. Indeed, there may be many occasions during his service of his house arrest that Mr. Arsenault wishes he had been sentenced to a shorter jail term so that his punishment would end quicker. The Criminal Code requires me to impose the least restrictive sanction which can achieve adequate expression of the applicable sentencing principles: s. 718.2 (d). In this case I have determined this to be through a conditional sentence order.

[61] I agree with Mr. Sahota that the cases of Coates, 2023 ONSC 3392 and Forestall, 2021 ONCJ 121 are the most useful comparators for arriving at a fit and proportionate sentence in Mr. Arsenault’s case. In both cases, conditional sentence orders with onerous conditions – ranging from 12 to 18 months – were imposed in comparable circumstances.

[62] I am also mindful that the objective of rehabilitation remains a primary goal of our justice system even in cases of violent and intentional harm where denunciation and deterrence are paramount: Bissonette, 2022 SCC 23.

[63] A CSO promotes accountability, responsibility, and deterrence in Mr. Arsenault. If he was to breach any of the terms of the Order, he would be arrested and brought back before me for a breach hearing. If the Crown proved any breach, I could put him in jail for the remainder of the sentence. I am satisfied that this function of the CSO would be adequate to deter Mr. Arsenault while also encouraging his rehabilitation.

[64] Accordingly, I am sentencing Mr. Arsenault to an effective term of 18 months imprisonment, to be served in the community pursuant to s. 742.1 of the Criminal Code.

[65] Mr. Arsenault will serve the first nine months of his conditional sentence order under house arrest, with very limited exceptions to permit him to attend work, perform community service and for medical emergencies and necessaries once a week.

[66] The conditional sentence will include the mandatory conditions required by s. 742.3(1). It will also include the following terms.

[67] For the home confinement portion of the sentence Mr. Arsenault is to remain in his residence at all times except:

(1) For medical emergencies for himself or any member of his immediate family;

(2) For going directly to and being at his place of employment, or to court, legal or medical or dental appointments, or while performing community service hours in compliance with this Order.

(3) For three hours once a week, on a date approved of by his supervisor, for obtaining the necessaries of life.

[68] During his home confinement, the offender must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

[69] Mr. Arsenault is to actively participate in any counselling or rehabilitative programs as directed by the supervisor and shall sign any releases required to permit the monitoring of his participation in such programs.

[70] Mr. Arsenault will perform 100 hours of community service work on a rate and schedule to be directed by his supervisor. He will complete such hours within 18 months of the start date of the Order.

[71] Mr. Arsenault will not communicate directly or indirectly with Ms. Williamson or with any member of her immediate family except through legal counsel, nor will he attend at any location where she is or is found to be.

[72] Mr. Arsenault shall notify his supervisor of any change of employment.

Ancillary Orders

[73] Mr. Arsenault will be subject to a driving prohibition order pursuant to s. 320.24 for a period of 2 years.

[74] Section 320.16 is a secondary offence under s. 487.04 (c) of the Criminal Code. While I have no concern regarding Mr. Arsenault’s risk to reoffend, the impact of making the DNA order on Mr. Arsenault’s privacy and security of the person would be minimal. The defence did not oppose the order sought. Accordingly, I make an order for the collection of a sample of Mr. Arsenault’s DNA under s. 487.051(3)(b).

[75] In addition, the victim fine surcharge of $200 will apply.

[76] Finally, I wish to thank both counsel for their thoughtful and very helpful submissions in this difficult case.

Released: January 11, 2024 Signed: Justice A. Dellandrea

Footnotes

[1] Oliviera, 2016 ONSC 120 (6 months); Aman, 2012 ONCJ 654, [2012] O.J. No. 4998 (C.J.) (5 months); Schmitt, 2011 ONCJ 546, [2011] O.J. No. 4961 (C.J.)(5 months); Eichler, 2012 ONCJ 480, [2012] O.J. No. 3390 (C.J.) (6 months); Bataineh, 2023 ONCJ 277 (12 months); Folkes, 2010 ONCJ 326 (15 months); Forrestall, 2021 ONCJ 121 (12 months CSO); Robertson, 2022 ONCJ 289 (12 months CSO); Coates, 2023 ONSC 3392 (18 months CSO)

[2] Balcha, [2004] O.J. No. 1217 (C.A.); Gill, 2010 BCCA 388; Peric, 2015 ONSC 4494