DATE: January 24, 2024 COURT FILE No: 18-1478

O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HIS MAJESTY THE KING

-AND-

FRANCOIS GAUTHIER

Before: Justice M. G. March

Submissions heard on: December 14, 2023 Reasons for Sentence released on: January 24, 2024

Counsel: Goher Irfan, Crown Counsel Francois Gauthier, Self-represented

March, M.G., J. :

Introduction

[1] On January 4, 2023, I found Mr. Gauthier guilty following a four-day trial of two counts of dangerous driving causing bodily harm contrary to then s. 249(3) of the Criminal Code (“the Code”). He was acquitted on two counts of impaired driving causing bodily harm.

[2] For various reasons, amongst them, a) the time it took to have a Presentence Report (“PSR”) prepared in the Province of Québec and then translated into English, b) the dismissal of counsel of record by Mr. Gauthier, c) and his attempts at finding new counsel, which sadly did not come to fruition, the imposition of sentence upon him was delayed inordinately until today.

[3] I suspect Mr. Gauthier was seeking as well to put off for as long as he could his day of reckoning; however, he will not be punished for that. That is human nature.

Circumstances of the Offences

[4] The facts as found at trial are set out in written reasons I have earlier provided. (see R. v. Gauthier, 2023 ONCJ 5).

[5] Briefly, Mr. Gauthier, who was residing at the time the offences were committed in Cantley, Québec, spent the July 1 weekend in 2018 visiting his girlfriend in Timiskaming, Ontario. His Canada Day included the consumption of alcohol and drugs.

[6] After the holiday weekend during the early morning hours of Tuesday, July 3, 2018, Mr. Gauthier left Timiskaming to head to his workplace in Ottawa. He was to start his shift at 6:30 AM that day.

[7] He stopped, intending to take a short rest in Deep River, Ontario, but overslept. He realized he would be two hours late for work. He then set his cruise control at 128 km/h to resume his journey to Ottawa.

[8] A police officer stopped him along Highway 17 in Laurentian Valley Township, Ontario and gave him a speeding ticket at 5:10 AM while he was en route.

[9] When he resumed his travel, he testified that he crossed over mud and dirt tracks, the remnants from a tractor coming out of a farmer’s field, which caused mechanical difficulties to his vehicle.

[10] He noticed the debris caught up in the undercarriage of his vehicle created problems with its steering. It began drifting to the left. Nevertheless, Mr. Gauthier continued on his way to work.

[11] He observed as well that his vehicle was overheating. He worried that it might explode, but he did not stop. His last memory of how fast he was travelling pre-collision was 125 km/h in an area of Highway 17 with a posted speed limit of 90 km/h.

[12] As he approached Renfrew, Ontario, his vehicle crossed over the dividing line into the passing lane of oncoming traffic and caused a head on collision within another motorist. His main victim was Mr. Van Den Bosch.

[13] Mr. Van Den Bosch suffered serious injuries including two broken vertebrae, a ruptured spleen, numerous lacerations to his arms and legs, and a concussion. He was hospitalized for roughly a week as a result.

[14] Upon his discharge from hospital, he was required to follow a regular regime of physiotherapy, osteotherapy, acupuncture and massage. He still suffers from chronic back and neck pain. He has ongoing anxiety and sleep issues. He was off work for over 4 months.

[15] The other victim of Mr. Gauthier’s dangerous driving was Mr. Eckford. The latter collided with Mr. Van Den Bosch’s vehicle post collision while it was laying on its side in Mr. Eckford’s eastbound path along Highway 17.

[16] Fortunately, Mr. Eckford’s injuries were not nearly as grave as those suffered by Mr. Van Den Bosch. Mr. Eckford had a sprained ankle and minor scratches on his arms. His midsection was badly bruised by the seatbelt he was wearing at the time of the accident.

[17] Mr. Gauthier’s defence counsel at trial quite properly conceded that Mr. Eckford’s injuries still met the definition of “bodily harm” set out in section 2 of the Code.

[18] Mr. Eckford was released from the hospital on the same day of the collision, July 3, 2018, following medical treatment.

[19] In my written reasons, I described Mr. Gauthier’s manner of driving pre-collision as “every motorist’s nightmare”. He was “all over” the road. I rejected his evidence that he was “doing manoeuvres to check on the mechanical fitness of his car”.

[20] I found specifically that due to his urgency in trying to make it to work on time, he was actively seeking opportunities to overtake vehicles ahead of him on the highway. His recklessness and speed in doing so caused the collisions which resulted in injuries to Messrs. Van Den Bosch and Eckford.

[21] In short, Mr. Gauthier’s driving constituted a marked departure from the conduct of a reasonably prudent driver who may have found him or herself in circumstances similar to his.

[22] Neither Mr. Van Den Bosch nor Mr. Eckford chose to file Victim Impact Statements prior to Mr. Gauthier’s sentencing.

Circumstances of the Offender

[23] At present, Mr. Gauthier is 39 years old. He has a lengthy criminal record consisting mostly of violent, drug, and non-compliance types of offences. He has no driving related convictions.

[24] He has been single since 2018. He has had steady employment since 2019. Financially he struggles, but he is able to support himself. He does not have any dependents.

[25] Mr. Gauthier grew up in the Abitibi-Temiscamingue region of Québec. He was the youngest of three boys. He described his parents as promoters of “socially acceptable values”. He felt they offered him adequate support, but he was the victim of an older brother’s aggression. The older brother was ultimately placed with a foster family.

[26] Mr. Gauthier struggled in school. He preferred to be “hands on”. He attributed substance abuse and negative influence from his brothers to his lack of interest in formal education.

[27] At 16 he left home and moved to the Montréal area. Soon thereafter, he became involved in the criminal justice system. Living on his own, he was regularly using cannabis and alcohol, which were an introduction to harder drugs, primarily methamphetamine, by the age of 20.

[28] The author of his presentence report stated: “We perceive him as a vulnerable individual, suggestible and, on the whole, immature and impulsive. He has never completed drug dependence therapy to better understand his consumption habits and given himself the means to avoid falling back into unhealthy patterns. For this purpose, and also to gain a better understanding of his impulsive nature, we believe he would benefit from such treatment.”

[29] I am unaware of any residential treatment which Mr. Gauthier himself has chosen to undergo. However, to his credit, he did manage to steer clear of the criminal justice system for substantial period between 2011 and 2017.

[30] The PSR commented aptly as well: “All in all, this is an individual who shows a willingness to get his life in order. However, he often fails to take concrete actions and/or follow through on them. Accordingly, to help ensure his success and reduce his medium-and long-term risk of reoffending, we believe that it would be important for him to work on his personal value system while continuing to abstain from narcotics. He has shown himself to be aware of these needs and has appeared more open than in the past to accepting available assistance in cooperating with our team.

Finally, in terms of his ability to comply with conditions, Mr. Gauthier’s past involvement with the judicial system suggests that he has difficulty fulfilling legal obligations when they are imposed on him. But notwithstanding certain reservations and based on information set out above, we believe that Mr. Gauthier is now better able to conduct himself in the context of open custody and community service.” [Translation]

[31] While failing to appreciate the “criminal dimension of his actions”, Mr. Gauthier did express “feelings of guilt and remorse that appeared sincere”. At the root, his criminality appears to be attributable to his “lack of judgement” and “impulsive nature”.

[32] During oral argument he made before me on December 14, 2023, Mr. Gauthier continued to bemoan the lack of action taken by his former defence counsel to advance an argument that his right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms was infringed.

[33] Without knowing what the substance of any such argument would have been, I can only comment that, to my mind, Mr. Gauthier was well served at trial by his lawyer.

[34] Quite correctly, at the conclusion of his submissions made to me prior to retiring to reflect upon a fit sentence for Mr. Gauthier, he stated, “I’m lucky to be alive.” [Translation]. His vehicle, Mr. Van Den Bosch’s and Mr. Eckford’s were all ‘write offs’ in consequence of the collisions in which they were involved, and Mr. Gauthier caused, through his dangerous driving.

Crown’s Position on Sentence

[35] Crown counsel seeks a period of incarceration of 15 to 18 months in total for Mr. Gauthier to be followed by a two-year period of probation, as well as the imposition of a three-year driving prohibition. Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court, she submits.

[36] Mr. Gauthier’s manner of driving was far from a “momentary lapse of judgment” on his part. It constituted prolonged endangerment to the public. His driving was reckless and erratic. It attracts therefore a high level of moral blameworthiness.

[37] Crown counsel referred to R. v. Yogeswaran, 2021 ONSC 5920, where at paras. 33 to 35, Stribopoulos J. reviewed the relevant caselaw and determined that the range of sentence for the “serious offence” of dangerous driving causing bodily harm is “between a conditional sentence and two years less a day of imprisonment”.

[38] At para. 40 of Yogeswaran, Stribopoulous J. made reference to R. v. Goulet, 2009 ONCA 786. Crown counsel submitted that Goulet was helpful in that it involved an element of “protracted dangerous driving”.

[39] The facts in Goulet were similar to those in this case in that the accused had driven recklessly for a significant period before the accident. He crossed a double solid line to pass a transport truck on a curve and collided head-on with another vehicle.

[40] Consequently, one person died, and three others were injured. The sentencing judge rejected the defence submission for a conditional sentence. He concluded that the principles of denunciation and general deterrence would not be adequately reflected thereby. Instead, the sentencing judge imposed 18 months of imprisonment to be followed by a 5 year driving prohibition.

[41] The Crown argued that Mr. Gauthier’s lack of insight and acceptance of responsibility are troubling, even though he is remorseful.

[42] Crown counsel also drew to my attention to R. v. Skardiute, 2023 ONCJ 10, where Schwarzl J. agreed with Stribopoulos J. on the range of sentence appropriate for the offence of dangerous driving causing bodily harm. However, citing R. v. Lacasse, 2015 SCC 64, Schwarzl zeroed in on the “offender’s moral blameworthiness” as a basis for rejection of the defence submission for a conditional sentence.

[43] The Crown pointed out that Mr. Gauthier had multiple opportunities to slow down or cease operating his vehicle, but he chose not to. His reckless and impulsive behaviour must be specifically deterred. Equally, the principles of general deterrence and denunciation must be recognized through the imposition of a period of incarceration.

[44] Crown counsel lastly emphasized the significant impact the offence has had upon the victim, Mr. Van Den Bosch.

Defence Position on Sentence

[45] Notwithstanding Mr. Gauthier was self-representing by the time of his sentencing, Crown counsel, quite fairly and ethically, referred me to the cases shared with her by his former defence counsel. They included: a) R. v. Ryazanov, 2008 ONCA 667, b) R. v. Singh, 2009 ONCJ 223, and c) R. v. Linton, 2022 ONCJ 197.

[46] However, as pointed out by Crown counsel, all of the offenders in the above-referenced cases did not have criminal records. On that basis alone, they are distinguishable, but as well, there were no elements of prolonged bad driving, continued driving while fatigued, or prior awareness by the driver of suspected mechanical unfitness or impending mechanical failure.

[47] The Crown also brought to my attention another case, R. v. Hutchinson, 2022 ONCJ 276, which Mr. Gauthier’s former lawyer had researched. The primary distinguishing feature there was the sentencing judge’s finding in Hutchinson that “everything occurred over a short period of time” (see para. 217). Mr. Gauthier had more than ample time to bring his vehicle to stop or to simply slow down.

[48] The last case Crown counsel pointed me to on Mr. Gauthier’s behalf was R. v. Mann, 2023 BCPC 101. Again, this case was readily distinguishable. The offender pleaded guilty. He was very young, only 21 at the time of the offence. He had no criminal record and the support of his family. Furthermore, the sentencing judge was keenly aware of the collateral immigration consequences for Mr. Mann were a conditional sentence not to be imposed.

[49] Crown counsel offered nevertheless that Mr. Gauthier should be credited for time he spent with the subject charges hanging over his head (some five years) without any further offending. All the while, of course, he endured the stress and anxiety of not knowing his fate.

Analysis

[50] In arriving at a fit disposition for Mr. Gauthier, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.

[51] Mr. Gauthier’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.

[52] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.

Denunciation and Deterrence

[53] The principles of denunciation and deterrence are paramount when one sentences an offender who commits the serious crime of dangerous driving causing bodily harm. (see R. v. Rawn, 2012 ONCA 487 at paras. 33, and 41-45)

[54] In R. v. Lacasse, 2015 SCC 64 at para. 6, the Supreme Court of Canada stated: “While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.”

Separation from Society

[55] Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.

[56] I must exhaust all other forms of punishment available as options under the Code before I can turn my mind to jailing Mr. Gauthier.

Rehabilitation

[57] Mr. Gauthier needs help. Hopefully, he can receive, through the sentence I impose for him, appropriate education and counseling to address a lack of insight into his criminal wrongdoing.

[58] Only then will Mr. Gauthier be fully able to rehabilitate himself, to restore his driving privileges, and to become a productive member of society again.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

[59] To a large degree, Mr. Gauthier wishes to maintain his innocence. That is his right. However, it does not bode well for his rehabilitation.

[60] I can only hope that Mr. Gauthier will, in future, take the time to reflect on his conduct and understand that what he did constituted a most serious crime.

Aggravating Circumstances

[61] Upon review of the offences committed by Mr. Gauthier, I find the following factors to be aggravating: a) The commission of the offences resulted in bodily harm to two individuals (see s. 320.22 (a) of the Code), b) he was travelling at a high rate of speed immediately prior to the collision, by his own estimate, 125 km/h, c) a short time before the accident, he was ticketed for speeding and asked by police to slow down, but he did not, d) the offences he committed involved a conscious decision on his part to continue driving in the face of the imminent danger it posed to other motorists, specifically -he was aware his car was pulling to the left, and may even explode, and e) the offence has had a significant, profound and likely, a permanent impact upon his victim, Mr. Van Den Bosch.

Mitigating Circumstances

[62] I consider as mitigating that: a) Mr. Gauthier, despite his lack of support and guidance from the young age of 16, has never committed a driving offence, and b) his remorse is genuine and heartfelt.

Parity

[63] Section 718.2 (b) of the Code provides: “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The Case Law

[64] None of the cases referred to me by counsel are on all fours with the facts in this case. Of course, this is not surprising in the slightest. As mentioned earlier, and as trite but true as it may be, no two cases are completely alike.

[65] I disagree with Crown counsel that Goulet is closest on its facts to this case. Mr. Goulet brought about the death of one victim, and injuries to three others. That jarring, aggravating factor is not present amongst the circumstances of the offences committed by Mr. Gauthier. I hasten to add, however, that the fact his offences did not end up killing someone was the result of good luck, certainly not good planning on his part.

[66] Indeed, in Yogeswaran as well, the injuries suffered by the offender’s teenage victim were far graver than those inflicted upon Mr. Van Den Bosch. In that case, the victim suffered a traumatic brain injury, was incapable of speaking or communicating, and unable to roll, sit, stand, bend, reach, walk or crawl. By pointing this out, I do not intend, by any means, to downplay the significant injuries suffered by Mr. Van Den Bosch, but clearly, they were nowhere near as life altering as those inflicted upon one of Mr. Yogeswaran’s two victims.

[67] Still, in Yogeswaran, Stribopoulos J. saw fit to impose only a ten month period of incarceration to be followed by a three year driving prohibition upon the offender’s release from custody.

[68] On its facts, Skardiute is perhaps the closest. The case involved an offender’s attempt to pass a line of vehicles while approaching a blind hill. The offender’s vehicle collided with an oncoming one while it was completely in her victims’ lane. One of the victims suffered horrific, “life threatening” injuries. The three other victims suffered serious injuries as well. Schwarzl J. meted out a sentence of 15 months imprisonment in that case.

A Fit Sentence for Mr. Gauthier in the Circumstances of the Offences He Committed and His Personal Circumstances

[69] It warrants repeating that the length of time for which I will incarcerate Mr. Gauthier must pay adequate respect for the principles of denunciation and deterrence.

[70] I have considered whether a conditional sentence can give effect to the aforementioned, salient sentencing principles of deterrence and denunciation. In my view, a conditional sentence does not.

[71] Nor do I hold out much hope for Mr. Gauthier’s ability to abide by a conditional sentence. By my count, he has incurred four past convictions for breaches of ‘court imposed’ conditions.

[72] I must nevertheless assess Mr. Gauthier’s prospects for rehabilitation. I will exercise some restraint, given it is his first driving offence, even though he is hardly a stranger to the criminal justice system.

[73] Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of nine months imprisonment for Mr. Gauthier.

Conclusion

[74] Upon assessment of all relevant provisions of the Code, I will jail Mr. Gauthier for a period of nine months. I find I can go no lower in order to adequately address the pressing principles of sentencing in this case, namely deterrence and denunciation. It will be followed by a one-year period of probation.

[75] For rehabilitative reasons, I will place Mr. Gauthier on such a period for one year following his release from custody. The focus of the assistance to be offered shall be on addressing Mr. Gauthier’s impulsive behaviours and his issues with addiction to illicit drugs. I recognize that although Mr. Gauthier was acquitted of impaired driving causing bodily harm, methamphetamine was found on his person at the time of his arrest. It was also found in a sample of his blood taken from him during his hospitalization post-collision. The drug may well have been a contributing factor to the accident for Mr. Gauthier. However, given the limited opinion the forensic toxicologist called by the Crown was able to give in evidence at Mr. Gauthier’s trial, the Crown fell short of proving that offence beyond a reasonable doubt.

[76] Mr. Gauthier’s conditions of probation shall be as follows: a) report to a probation officer within 72 hours of his release from custody and thereafter as required, b) reside at a residence approved by his probation officer and not elsewhere, c) attend for any assessment and counselling recommended by his probation officer including for substance abuse, d) sign any releases required of him by his probation officer to allow him or her to ensure he is acting on any such recommendation made, and e) keep the peace and be of good behaviour.

[77] Further, I will impose a three-year driving prohibition on Mr. Gauthier. He shall not operate a conveyance, as that term is defined in the Code, on any road, street, highway or public place anywhere in Canada for three years upon his release from custody.

[78] I will waive the imposition of any victim fine surcharge for Mr. Gauthier. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he will likely be incarcerated, his limited education and the financial struggle he will face upon release.

[79] Lastly, I will recommend a transfer to the Province of Quebec to permit Mr. Gauthier, if possible, to serve his sentence in a francophone milieu, and to be supervised by Probation Services there.

DATED: January 24, 2024

March, M.G., J.