ONTARIO COURT OF JUSTICE DATE: 2024 07 04 Halton Region
B E T W E E N :
HIS MAJESTY THE KING
— AND — JI FENG
Before: Justice Scott Latimer Heard on: June 11, July 4, 2024 Reasons for Sentence
Charon Kerr .......................................................................................... counsel for the Crown Vadim Paskarou ....................................................................................... counsel for Ji Feng
LATIMER J.:
[1] This case involves the tragic intersection of two pro-social, community-minded people. Ji Feng, heading to the hospital in a distracted state of mind because of concerning medical news, drove her vehicle poorly and struck and killed a cyclist, Detlef (Doug) Fritz, also headed to the hospital for a medical appointment.
[2] Ms. Feng’s criminal responsibility began after her vehicle struck Mr. Fritz. She kept driving. She drove to the hospital and parked her car in an isolated corner of the parking lot. She called her husband and a tow truck but told neither what had occurred just minutes before on the roadway. The next day, when the police located her, she further obscured her responsibility for Mr. Fritz’s death.
[3] Ms. Feng has pleaded guilty to failing to stop at an accident resulting in death, contrary to section 320.16(3) of the Criminal Code. The Crown seeks a jail sentence in the range of nine months, while the defence submits that the principles of sentencing can best be addressed by a twelve-month conditional sentence.
I. Facts
[4] The factual admissions in this case are contained in the Agreed Statement of Facts that has been made an exhibit. What follows is a summary.
[5] Ms. Feng lives in North York. Her family physician is located in Burlington. On May 18, 2023, she was experiencing numbness in her hand and right cheek and worriedly attended her doctor’s office. Her doctor referred her for a same day CT scan at Joseph Brant Hospital. She left the doctor’s office at 2:17 pm and, unfamiliar with the route to the hospital, relied upon GPS in her vehicle to navigate her way.
[6] Her route took her along North Shore Boulevard. Dash cam footage from another vehicle on the road showed Ms. Feng operating her motor vehicle partially in the lane and partially in the designated bike lane. Mr. Fritz was cycling in the bike lane. The bike lane markings diminished as the roadway approached a construction site.
[7] Just before two-thirty in the afternoon, Ms. Feng’s vehicle braked momentarily as it struck Mr. Fritz. The front passenger side of the car struck his bike, and the impact dislodged him and propelled him onto the passenger side of the front windshield. As photo N, attached to the ASF exhibit, depicts, over 50% of the windshield is damaged and the passenger side is depressed and nearly caved in. Mr. Fritz’s body then tumbled down the side of Ms. Feng’s car and onto the pavement.
[8] Ms. Feng braked for a short period of time, then continued driving the short distance to the hospital without stopping, arriving at 2:30 p.m. The ASF states that she, “collected a parking ticket stub and drove her vehicle into the far corner of the lot”. The damage to the vehicle was obvious and noticed by a hospital employee.
[9] Ms. Feng took a picture of the damaged windshield and texted it to her husband, stating that the windshield “just broke” and he needed to call their insurance company. No further details were provided. She then entered the hospital for her appointment.
[10] Back at the collision scene, other motorists had stopped and were attempting to provide aid to an unconscious Mr. Fritz, who lay crumpled at the roadside with blood pooling near his head. When paramedics arrived, his vital signs were absent. He was transported to Joseph Brant hospital where, at 3:03 pm, he was pronounced dead. The cause of death was blunt force trauma. Fragments of windshield were embedded in his back and injuries were apparent throughout his body.
[11] Ms. Feng remained in a different area of the hospital for approximately five hours. During that time, the insurance company contacted her to ask about the vehicle’s damage. She described that she was driving and the windshield, “all of a sudden” cracked. She didn’t feel it was safe to drive the vehicle any further. A tow truck driver was dispatched to the hospital parking lot.
[12] The tow truck driver, upon seeing the damage, asked Ms. Feng what she had hit. She indicated she didn’t remember. He further asked if she had struck a pedestrian and she again said she didn’t remember. The vehicle was towed away, however not before a hospital employee noticed the damage and contacted the police.
[13] Ms. Feng was arrested the next day. She received her rights and chose to speak to the investigators. She spoke in English, waiving her right to an interpreter. She described feeling a bump and then the windshield fell in. She did not see Mr. Fritz. She denied being distracted but acknowledged being emotional about her medical symptoms. Upon seeing the dashcam footage of her vehicle striking Mr. Fritz, she stated, “I can’t believe it. I can’t see him. I can’t believe. Honestly, I felt for sure there was something wrong. Maybe I kill him. But I didn’t see the guy”.
[14] I will now move to the evidence I have heard about the backgrounds of Doug Fritz and Ji Feng.
(1) Doug Fritz
[15] Doug Fritz lived a life filled with activity, family, and friendship. For the better part of a court day, I heard touching tributes to him from many members of his family. As I said at the time, victim impact statements are, at their core, about perspective. Perspective on a crime’s impact delivered by the people affected by the death of a loved one. Perspectives granted to a judge that he or she would not ordinarily possess. I am grateful for the perspectives of Mr. Fritz that I received.
[16] A sentence hearing is the closure of a criminal trial proceeding. Whether it provides closure in the emotional sense is quite another thing. My role is to determine criminal responsibility and hold people accountable for their conduct. No sentence I impose will replace Mr. Fritz in the lives of his family and friends, nor can it repair his absence in our community. Based on the evidence I have received, it is evident he was the sort of person we all hope to know, or to have in our lives. He was loved, and he gave love back to the people close to him. I acknowledge the significant pain his absence has caused his family and friends. I am appreciative of all of the impact statements I have received. They paint a beautiful picture of a cherished husband, father, grandfather, and friend.
(2) Ji Feng
[17] My understanding of Ms. Feng has also been greatly aided by the presentation of character references from both family and work colleagues. She is a caring mother and dedicated employee. Repeated themes throughout the letters include her positive attitude and her kindness to others, be they family members or clients. She works in the financial industry as an investment specialist and has genuinely assisted others during her employment.
[18] A focus of Ms. Feng’s life is her young, autistic son. He is presently in specialized programming in Toronto. He is eight years old. It is evident both she and her husband place their son at the centre of their lives, and work tirelessly to ensure his developmental and emotional needs are met.
[19] The medical problem that precipitated her attendance that day at Joseph Brant Hospital has regrettably continued. I have received letters from her psychotherapist and a treating doctor regarding her ailment and resulting cognitive impairments.
[20] The agreed facts state that Ms. Feng experienced multiple strokes in the summer of 2023 and these strokes may have contributed to the symptoms that appear to have started in May 2023; symptoms such as weakness/numbness in her right hand, trouble speaking at times, zoning out and a bright spot in her right eye.
[21] Finally, Ms. Feng is not a Canadian citizen. Born in China, she came to Canada in 2005 on a student visa and subsequently became a permanent resident. Despite having lived in Canada for twenty years and being the mother of a young child, all parties in this proceeding acknowledge it is very likely she will be the subject of a removal order from Canada as a result of her criminality. Should I impose a sentence greater than six months imprisonment, she will further lose the ability to appeal that order to the Immigration Appeal Division. The parties agree, however, that a conditional sentence greater than six months will not amount to a sentence of “imprisonment”, as the immigration legislation interprets that term.
II. Legal Analysis
[22] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are contained in the Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
[23] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. This means that, for the sentence I impose to be appropriate, it must be tailored to Ms. Feng’s circumstances, and the circumstances of the fail to remain offence she committed.
[24] Failing to stop a motor vehicle after being involved in an accident that resulted in death is a grave offence. It is punishable by a maximum sentence of life imprisonment. Very few offences in the Criminal Code carry a potential life sentence. The vast majority – such as murder, manslaughter, and robbery – contain elements that involve the knowing commission of violence against another human being. Others, like a residential break and enter, are a legislative expression of the sanctity of a private dwelling. In the case of the fail to remain (death) offence, the availability of a sentence of life imprisonment is Parliament’s signal to judges about the dignity and value of human life, and the care that motorists owe to other human beings on, or near, the roadway. I say so for the following reasons.
[25] First, the Parliament of Canada writes the Criminal Code. Decisions about a maximum penalty are a way in which Parliament assists judges in identifying the gravity of an offence and what amounts to a proportionate sentence.
[26] In R v Friesen, 2020 SCC 9, [2020] 1 SCR 424, a unanimous decision of our Supreme Court, the judges wrote at paragraph 96:
Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., at paras. 24- 25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the “relative severity of each crime” (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed. 2016), at pp. 51-52). Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence (C. C. Ruby et al., Sentencing (9th ed. 2017), at § 2.18; R. v. Sanatkar (1981), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327; Hajar, at para. 75).
[27] The Court of Appeal for Ontario has also consistently identified general deterrence and denunciation as the primary sentencing considerations in cases of fail to remain involving death. See their decisions in R. v. Gummer, [1983] OJ 1818, and R. v. Ramdass (1982), 18 MVR 256.
[28] In the Ramdass decision, Justice Zuber, writing for the Court, stated at page 258:
In a crime of this type the deterrent quality of the sentence must be given paramount consideration and I am using the term deterrent in its widest sense. The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
[29] In the Gummer decision, Justice Martin, writing for the Court, stated at paragraph 16:
In our view, the Court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code.
[30] I accept these statements as binding propositions of law. I further acknowledge their application in modern-day Halton Region – our roads are heavily populated with multiple users, all vying for limited space and passage. Motorists, cyclists, and pedestrians all have an equal right to safe travel on, or near, our roadways. When an accident happens, it is a driver’s legal and moral responsibility to remain at the scene and offer whatever care or information is required. To do otherwise is, as Justice Zuber wrote, reprehensible. Driving a motor vehicle is a privilege, not a right. Selfish ignorance of other users of the roadway – as I regrettably conclude occurred here – comes at a price in criminal court.
[31] Neither lawyer disputes that deterrence and denunciation are the primary sentencing objectives to address here. Further, the Crown does not dispute that Ms. Feng, as a first offender, warrants careful attention to the principle of rehabilitation. The sentence I impose must be the least onerous capable of addressing the various sentencing principles, such as deterrence and denunciation, that I am obligated to address. We call this the principle of restraint.
[32] Both lawyers agree a custodial sentence is required. Where they differ is the form of that sentence. The Crown seeks traditional jail, the defence conditional. A conditional sentence is a jail sentence, but one served in the community. It contains significant restrictions on liberty, while at the same time permitting an offender to serve their sentence in their home. Jail sentences do not have exclusive claim on the principles of deterrence and denunciation; in an appropriate case, a conditional sentence can address both while more fully promoting the principle of rehabilitation: R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61.
[33] The availability of a conditional sentence depends on whether certain statutory prerequisites are met. Both parties are seeking a sentence less than two years. I accept, on balance, that Ms. Feng will abide by the terms of a court order and the public will not be endangered by her presence in the community while serving the sentence. The remaining question is whether a conditional sentence, in the present circumstances, would be consistent with the fundamental purpose and principles of sentencing.
[34] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. This would include features of Ms. Feng’s background, features of the crime she has committed, the timing of her guilty plea and the other evidence I have received during this sentence hearing. Some of this information I have already reviewed. I would additionally note the following important aspects of this proceeding:
(1) Ms. Feng has pleaded guilty. While the case against her appears strong, if not overwhelming, she had a constitutional right to a trial, in either this court or the Superior Court, where she could have put the Crown to its burden to prove this charge beyond a reasonable doubt. She has not done that. Her decision relieves the state and the court system of the burden of her trial at a time when trial time is in short supply. It also relieves all participants and observers in this case the emotional toil of participating in the trial process.
(2) Ms. Feng is remorseful for her conduct. It is evident to me that her guilty plea is motivated by remorse and an acknowledgment of responsibility. Her statement to the court made her remorse plain. While I do conclude that, on the date in question, Ms Feng was focused on her own circumstances and attempting to distance herself from the accident involving Mr. Fritz, I also conclude that following her arrest she has meaningfully accepted responsibility for her criminal actions. Specific deterrence is always a concern in a case like this, but I accept a lesser one in her circumstances. She is also a strong candidate for rehabilitation.
(3) A conditional sentence will limit the collateral impact of Ms. Feng’s sentence on her young son. I do not give this factor considerable weight, however, because of the presence of Ms. Feng’s husband as a caregiver.
(4) After considerable deliberation, I give Ms. Feng’s May 18 medical circumstances limited weight in the assessment of culpability during this sentencing. She knowingly was involved in an accident and was reckless as to whether the accident caused Mr. Fritz’ death. The physical evidence in this case – in particular the caved in windshield – would have made it plain to any driver that an accident involving a human being had resulted. Ms. Feng explicitly agreed, during the course of the guilty plea, that her medical condition does not amount to a reasonable excuse for her conduct.
I conclude that the relevance of her medical circumstances, on May 18, were as follows: it was reasonable that Ms. Feng was concerned about the onset of her symptoms, and the resulting fear and uncertainty would undoubtedly have been at the forefront of her mind when she left her doctor’s office. She should not have been driving in that moment. But she did. She chose to drive, and did so poorly, driving her vehicle in the dedicated bike lane space.
Her medical circumstances were a distraction that led to this accident. They do not, however, amount to an excuse or a reduction in responsibility for her subsequent conduct. I maintain my view that her actions were selfish – she prioritized her own safety over Mr. Fritz’s care and took active steps to distance herself from the accident. She continued to the hospital because that was her primary goal, but she also took time to secrete her vehicle in a manner that made observation less likely. Even taking her language capacity into account, I nevertheless conclude that she was intentionally obscuring her connection to the earlier accident that killed Mr. Fritz when she spoke to the tow truck driver, the insurance company, and the police. These findings increase her moral culpability in the circumstances.
(1) Relevant caselaw
[35] I now move to the cases provided by the lawyers. I have received a number of examples of how other judges dealt with other facts in other circumstances. These cases help me to understand the appropriate legal principles at play, and also what types of outcomes other judges have reached. Ultimately, however, while the law strives for consistent outcomes, sentencing is an individualized process, and each case is ultimately decided on its own facts. While I do not intend to review all of the cases provided, I have read them all and have considered their applicability to Ms. Feng’s circumstances.
[36] In R v Eichler, 2012 ONCJ 480, Justice Hearn of the Ontario Court sentenced a first offender for failing to remain at an accident where significant bodily harm resulted. Mr. Eichler pleaded guilty and presented positive antecedents, similar to Ms. Feng. Justice Hearn ultimately imposed a six-month jail sentence. At para. 45 of the judgment, he explained:
Driving is a privilege and all of the obligations and responsibilities associated with that privilege must be respected. There is a statutory obligation to stop a motor vehicle if it is involved in a collision. Even more so, there is a moral obligation where an accident occurs and serious injuries are obvious on the individuals involved in such an accident to stop and assist each other with specific regard to those in clear need such as Mr. Medeiros in this case. Mr. Eichler not only ignored his legal obligation, he also failed to “comport with the standards of humanity and decency” by leaving the scene. A period of imprisonment in a traditional setting is called for here.
[37] In R v Armitage, 2023 ONCJ 182, Justice O’Donnell of the Ontario Court sentenced a man in circumstances factually similar to those here. A driver suffering from severe sleep apnea, depression and anxiety struck a cyclist and left the scene. The cyclist subsequently died. O’Donnell J, after reviewing many relevant principles and cases, determined that the application of sentencing principles in Mr. Armitage’s case justified the imposition of a conditional sentence of two years less one day.
[38] In R. v. Reid, 2016 ONSC 3237, Justice Goldstein of the Superior Court sentenced a transport truck driver for leaving the scene of a collision that killed another motorist. This man pleaded guilty, and his family relied upon his employment. Goldstein J. imposed a nine-month jail sentence, stating at para. 29:
Mr. Reid certainly took some steps to avoid detection, but gave up the attempt. I must balance the key aggravating and mitigating factors here: the expression of remorse and the guilty plea, the fact that Mr. Reid is a professional driver and should have known better, and that he took steps to hide his involvement. I also take into account Mr. Reid’s excellent rehabilitative prospects. I am quite sure he will never find himself involved with the criminal justice system again. He has the support of his family and employer. Up to this point he is led an entirely pro-social life. He is obviously a decent family man who made a very serious and costly error of judgment. When I balance those factors, as well as the other aggravating and mitigating factors, and apply the principles of sentencing, I find that a sentence towards the lowest end of the range would be appropriate but for the attempts at a cover-up. Those attempts must be recognized as part of the sentencing process.
[39] In coming to this conclusion, Goldstein J. cited the sentence ranges discussed by two other judges, Justice Monahan of the Ontario Court, and Justice DiTomaso of the Superior Court, in the Sankar and Porter decisions, respectively. I also adopt the comments of these judges as accurate statements of the law. I would refer in particular to DiTomaso J’s statement at paragraph 50 of the Porter judgment:
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.
[40] I understand Justices Monahan, DiTomaso and Goldstein to collectively agree that a range of 5-24 months jail is generally imposed for fail to remain cause death. It is within this range that DiTomaso J. discussed a continuum.
1 R v Sankar, 2022 ONCJ 7; R. v. Porter, [2017] OJ 5784 (SCJ).
[41] In placing Ms. Feng’s circumstances on this continuum, I conclude she is much closer to the lower end. She has pleaded guilty, expressed remorse, and has positive rehabilitative prospects. However, her moral culpability is heightened by her subsequent steps to obscure her involvement in the accident.
[42] Fail to remain – death is a challenging area to sentence. There are cases that impose traditional jail, and cases that impose conditional sentences. Many of these cases are factually similar. The point of division, it seems, is the balancing approach judicially employed with regard to the principles of sentencing. Some judges have concluded, on their facts, that a conditional sentence is consistent with the principles of sentencing. Others have concluded it is not. There are no bright lines here, it is all a question of balance and weight.
[43] After due consideration, I conclude that the imposition of a conditional sentence in this case would not be consistent with the purpose and principles of sentencing. After considering Parliament’s conscious decision to mandate a maximum life sentence for this offence, and the Court of Appeal’s instructions in Gummer and Ramdass, I conclude that a traditional jail sentence is required to address, as Justice Martin wrote in Gummer, Ms. Feng’s failure to comport with the standards of humanity and decency. A jail sentence is required to denounce the commission of this offence in these circumstances. While there is a part of me that is sympathetic to the negative impact this sentence will have on her and on her family, in particular her son, those sympathies do not outweigh the principles of deterrence and denunciation and my obligation to impose a proportionate sentence in this case. Halton Region, as I referred to earlier, is densely populated and motorists, cyclists and pedestrians constantly find themselves in close quarters. In the event an accident occurs, a driver’s number one priority is to their fellow man. Ms. Feng’s failure to prioritize her obligation to Mr. Fritz over her own situation was a criminal act that needs to be denounced by the sentence I impose. A conditional sentence would be inadequate in the circumstances.
[44] I accept that a sentence in the range of 6-8 months jail would be appropriate on these facts. However, Ms. Feng’s status as a permanent resident remains relevant. The Supreme Court of Canada instructed judges in a case called R v. Pham, 2013 SCC 15, 2013 1 SCR 739, that immigration consequences should be taken into consideration and may justify adjustment within a range, so long as the ultimate sentence remains proportionate to the offence committed.
[45] Returning to the principle of restraint, and taking into consideration the impact a jail sentence of six months or more will have on her status in this country, I am satisfied that a sentence of five months, 29 days – or 179 days total – is acceptable and still proportionate to Ms. Feng’s crime. The imposition of this slightly lesser sentence allows her to maintain a right of appeal to the Immigration Appeal Division, who are ultimately best suited to judge whether a twenty-year resident of our country, meaningfully employed and the mother of a young special needs son, should be deported on account of this acknowledged criminality. When they consider this question, I do hope they appreciate Ms. Feng’s genuine remorse at this proceeding and the contributions she has made to our community, as borne out in the character letters filed.
III. Disposition
[46] No sentence can replace Doug Fritz in the lives of his family and friends, nor can it repair his absence in our community. This sentence is intended to address Ms. Feng’s culpability in leaving the scene of the accident, be consistent with other similar sentencing judgments in this area and address her specific personal circumstances. This is a human process, just as this case is a human tragedy. It is my sincere hope that all parties, on both sides of the courtroom, can one day move on from the pain of this proceeding.
[47] The sentence imposed is 179 days jail, followed by a two-year driving prohibition and a DNA sample.
Released: July 4, 2024 Justice Scott Latimer