DATE: August 15, 2024 ONTARIO COURT OF JUSTICE Central West Region
His Majesty the King -and- Gurjeet Buttar
Sentencing Proceeding conducted May 23, 2024 Decision and Reasons issued August 15, 2024
Justice of the Peace A.G. Summers
Appearances: Torr, C ...................................................................................................................... for the Crown Paddon, R ....................................................................... counsel for the defendant Gurjeet Buttar
Statutes Considered or Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, as amended Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Cases Considered or Cited: Ontario, Legislative Assembly, Hansard, 41st Parliament, 1st Sess. No 185 (9 June 2016) R. v. Anthony-Cook (2016) SCC 43 R. v. Biggar, (2023) O.J. No. 5883 R. v. Blanthorne, (2019) B.C.J. No. 2572 R v B.P. (2004) 33468 (ON CA), 190 O.A.C. 354 (C.A.) R. v. Du Jardin, (2009) O.J. No. 636 (S.C.) R. v. Duval, (2024) O.J. No. 1374 R. v. Hiebert, (2022) O.J. No. 607 R. V. Hutchinson, (2014) SCC 19 R. v. Ingram, (2023) ONCJ 141 R. v. Josan (2007) ABPC 300 R. v. Kinch, (2004) O.J. No. 486 R. v. Kreyger, (2020) ONCJ 424 R. v. M.(C.A.) (1996) 1 S.C.R. 500 (S.C.C.) R. v. Matharu, (2021) ONSC 4762 R. v. Miller, (2023) ONCJ 77 R. v. Pathak (2020) O.J. No. 5834 R. v. Reeve, (2020) ONCA 381 R. v. Rubenstein, (1987) O.J. No. 1119 R. v. Scannell, (2023) NLPC 1022 R. v Singh, (2010) ONSC 3398 R. v. Stupar, (2015) ONCJ 350 R. v. Taylor-Rawlings, (2019) ONCJ 6 R. v. Watson, (2023) ONCJ 50 Ontario (Labour) v. Hamilton, (2002) O.J. No. 283 (Ont. C.A.) Rizzo & Rizzo Shoes Ltd. (Re), (1998) 1 S.C.R. 27
Justice of the Peace A.G. Summers - Decision of the Court
[1] My task is to sentence the defendant, Gurjeet Buttar, while ensuring the application of sentencing principles that include specific and general deterrence, denunciation, aggravating and mitigating factors, the proportionality and totality of the circumstances, are fulsomely considered and justice is seen to be done. I also considered the joint submission as to sentencing. I have been mindful that when a joint submission as to sentence is offered for my consideration, the submission must not contravene the interests of justice, nor place the administration of justice in disrepute, nor otherwise offend the public welfare.
[2] Deterrence and denunciation are paramount sentencing considerations to address upholding the integrity of the public welfare. R. v. Cotton Felts, Ltd., (1982) 3695 (ON CA).
Background
[3] Mr. Buttar comes before the Court for sentencing, having pled guilty to Count One, the offense of Careless Driving Cause Death, contrary to §130(3) of the Highway Traffic Act.
[4] The penalty provisions allow for a $2,000.00 - $50,000.00 fine, up to 2-years in custody, probation, and up to a 5-year license suspension.
[5] The Court was provided of a one and one-half page double-spaced statement of facts which was created from a 400-page incident re-creation report.
[6] The parties did not indicate the current driving status of Mr. Buttar, though it was indicated he was operating a commercial Freightliner at the time of the collision.
[7] On August 22, 2023, the Ontario Provincial Police laid a four count Provincial Offences information charging Mr. Buttar with (1) count of Careless Driving causing death contrary to HTA § 130(3); and (3) counts of Careless Driving causing bodily harm contrary to HTA § 130(3). Subsequently, another victim succumbed to his injuries and the information had not been amended.
[8] As part of the sentencing hearing the Court heard impact statements from the family of the deceased, Dorothy Sutherland, her husband and accident survivor, Kenneth Sutherland, and a family member for Robert Vervaecke, a second decedent.
[9] The crown presented a sentencing brief containing case law. No additional evidence was included within the brief and is marked an exhibit for the purposes of sentencing. The court made inquiries of counsel regarding facts supporting the essential elements of the charge to inform the agreed statement of facts.
Family Impact Statements for Dorothy Sutherland and Robert Vervaecke
[10] The family of Dorothy Sutherland shared their victim impact statements and the impact of her loss upon them. Also, the family of Robert Vervaecke shared a victim impact statement and the impact of his loss upon them.
[11] The court heard from Kenneth Sutherland whose statement was read into the record by Kim Sulston, daughter of Dorothy and Kenneth Sutherland. The court heard from Kim Sulston, daughter of Dorothy and Kenneth Sutherland. The court heard from Elaine Ficzeren, sister of Dorothy Sutherland. The court heard from Brenda Parker, whose statement was read in by Ashlie Boich, Ms. Parker’s daughter. The court heard from Laura Sulston, granddaughter to Dorothy Sutherland, as read into the record by Kim Sulston. The court also heard from Arlene Tremblay, sister of Robert Vervaecke, who was the deceased driver in Vehicle two.
[12] The victims were lovingly represented by their family members, and they all shared intimate, and heartbreaking details regarding the magnitude of this loss and the consequences of that loss to them. The tremendous grief and impact shared by the victims as a result of this careless incident is profound and acknowledged by this court. It is also acknowledged that no decision will be able to restore the losses experienced.
Pre-Sentence Report
[13] The defendant originates from Daya Kalan, Pubjab, India, immigrating in 2016 to join his wife. Married in 2015, they since have started a family and have two children, and in 2023 parents immigrated to live with him and his family. In 2021, he was granted permanent residence and has plans to become a Canadian citizen. He became a commercial truck drive in 2017 and had a period of unemployment following the incident before the court. He now works in a repair shop following termination from his employment as a truck driver following the incident. He reported enjoying his new employment and experiencing trouble due to the family loss of income and stressors. He indicates he plans to return to commercial truck driving in the future following careful consideration. When asked, his wife reported the defendant has demonstrated feelings of sadness for the injury and death of the victims and stated she would prefer he does not return to driving transport truck in the future.
[14] The defendant reported feeling sorrowful and has difficulty coming to terms with the outcome of the collision. He indicated he did not intend to harm others and expressed condolences to those impacted.
[15] His wife, S. Kiaur, reported the defendant has a positive support system and had been in an upset mental state effecting his sleep following the collision, loss of employment, and she noted this is steadily improving. She indicated the defendant has preserved his composure throughout the challenges resulting from this offence.
[16] The court observed that the defendant chose not to make a statement under oath before the court. He offered no testimony under oath and was not subject to cross-examination during the sentencing proceeding. Therefore, any reported commentary regarding attention or vehicle operation in relation to the collision within the pre-sentence report were not considered.
Evidence
[17] On Wednesday, April 19, 2023, at 1:32 p.m. Mr. Buttar caused a multi-vehicle collision westbound on Highway 403 in the County of Brant at the Perris Road exit.
[18] The collision occurred in the right lane about 100 meters past the Perris Road turnoff.
[19] Vehicle one operated by Mr. Buttar was a 2023 white commercial Freightliner Model FM2 where he was a sole occupant.
[20] Vehicle two operated by Robert Vervaecke was a 2000 gold Lincoln with one passenger, Brian Barham.
[21] Vehicle three operated by Kenneth Sutherland was a 2015 Dodge Caravan with one passenger, Dorothy Sutherland.
Injuries and Accident Detail - Vehicle One
[22] The driver and defendant, Gurjeet Buttar, was not injured and was not transported by ambulance from the accident scene.
[23] Mr. Buttar disclosed under caution he was travelling west bound on the 403 highway in the right lane at a speed of 100 kms per hour.
[24] Mr. Buttar further disclosed as he approached the Perris Road exit (and about 100 meters from impact) he realized that the vehicles ahead of him were stopped.
[25] The Crown offered that the roads were dry, there were no signs or traffic controls at the point of impact, there was no evidence of distracted driving, and Mr. Buttar had no obstructions or no issues with visibility between the stopped vehicles and his vehicle.
[26] The defense offered that the driver’s seat in the Freightliner was positioned several meters above the surface of the highway. From that elevated seat, Mr. Buttar had a clear sightline down the entirety of the 500 meters that lay between his approaching vehicle and the stopped vehicles on the highway. The defense offered that for approximately 500 meters, “something was there to be seen.”
[27] The Freightliner had that approximate 500 meters to reduce its speed to zero and to come to a safe and controlled stop behind the stopped line of traffic that was forming ahead of it on the 403-highway westbound.
[28] At approximately 15 seconds prior to the collision, Mr. Buttar was driving at a speed of 103 kms per hour. While attempting to swerve and one second prior to the collision, the Freightliner’s speed had reduced to 77 kms per hour, rather than zero, and the Freightliner registered a hard braking. The Freightliner came to a complete stop in the left lane at least one full tractor trailer length, past a stopped commercial truck and trailer and the two impacted passenger vehicles that were all sitting in the right lane.
[29] Mr. Buttar impacted vehicle two as it stood motionless catapulting it to the right and toward the right-side emergency lane where it came to a stop completely off the road.
[30] Mr. Buttar continued forward and while steering the Freightliner directionally away from the right lane toward the direction of the left lane, and after impacting vehicle two, Mr. Buttar impacted Vehicle Three as it [also] stood motionless directly behind a stopped tractor trailer.
[31] Mr. Buttar continued forward while continuing to steer the Freightliner left toward the direction of the left lane, steering past the back of the stopped tractor trailer sitting in the right lane, and continued in the left lane approximately 100 meters further down the 403 westbound, before coming to a complete stop. No other vehicles were impacted.
Vehicle Two – Injuries and Accident Detail
[32] Vehicle Two was at a complete stop on Highway 403 directly behind Vehicle Three.
[33] After impact, Vehicle Two came to a stop completely outside the right lane, on the right of Highway 403.
[34] The driver, Robert Vervaecke, was transported by ambulance from the accident scene to the Brantford General Hospital having suffered a broken neck and a brain bleed. By 11:30 p.m. that evening, Mr. Vervaecke was pronounced deceased.
[35] The passenger, Brian Barham, was transported by ambulance from the accident scene to the Brantford General Hospital having suffered a broken neck, broken ribs, broken collar bone, and bleeding in the chest. The Crown was unable to offer a current medical status of Mr. Barham during the sentencing proceedings. Subsequently, as of June 20, 2024, Mr. Barham’s daughter informed he was still in pain. He requires a personal support worker, who assists him 3 times a week to help with daily living. Also, he has a rehabilitation support worker that assists him once a week to help with appointments and to get him out of the house. He has an occupational therapist to help strengthen his limbs. He was hospitalized for 3 months after the accident and then was admitted twice afterwards. The Crown clarified Mr. Barham in suffering a broken neck, experienced a fracture to the first cervical vertebrae, and one in the second cervical vertebrae, as well as a concussion, and an open wound to his eyelid.
Vehicle Three – Injuries and Accident Reconstruction Information
[36] Vehicle Three was at a complete stop on Highway 403 directly behind Vehicle Two.
[37] After impact, Vehicle Three was pushed toward the shoulder of the right lane.
[38] Upon regaining consciousness, Mr. Kenneth Sutherland observed the driver’s and passenger’s seats were laying completely flat and he could see the vehicle’s ceiling, despite being in a standard upright position at impact.
[39] Mr. Sutherland further observed Mrs. Dorothy Sutherland asking what had happened, and he observed blood issuing from her mouth.
[40] Mr. Sutherland additionally observed the approaching Freightliner in his left side driver’s mirror, and observed the bumper of the Freightliner would immediately impact the Dodge Caravan he was operating.
[41] The driver, Kenneth Sutherland, was not transported by ambulance from the accident scene because initially his injuries were considered minor in nature. Mr. Sutherland had suffered a complete tear in his left rotator cuff, right shoulder injury, and a complete severing of his left bicep tendons rendering his arm useless. His injuries required multiple reconstructive surgeries, a sixteen-week surgery recovery, resulting in severe and consistent on-going nerve pain, and permanent disability including severely limited use of his arms.
[42] The passenger, Dorothy Sutherland, was transported by ambulance from the accident scene to the Hamilton General Hospital with what was determined to be serious and life-threatening injuries including bleeding within the spleen. Later that evening Mrs. Sutherland was pronounced deceased.
Position of the Parties
[43] The Crown requested to proceed with a plea to count one, Careless Driving causing the death of Mrs. Sutherland, in Vehicle Three.
[44] The Crown did not request the court to amend one of the 3 remaining counts from Careless Driving causing bodily harm to Careless Driving causing death due to the subsequent death of Mr. Robert Vervaecke in Vehicle Two.
[45] The Crown did not proceed with the remaining 3 counts; Careless Driving causing bodily harm and will presumably be withdrawing these counts in due course.
[46] The Crown is not seeking a period of custody for the plea as to count one. The Crown and Defense are requesting a fine of $4,000.00, double the minimum fine, and a one-year license suspension.
[47] The Crown at sentencing offered that the defendant had accepted the statement of facts, had an absence of prior convictions, pled guilty to count one, the conviction will impact his commercial driving capacity, and by his accepting liability he gave closure to the family without having to endure a trial, as mitigating factors.
[48] The Crown provided its rationale of the aggravating factors for the court’s consideration upon further submissions as to sentencing at the request of the court.
[49] The Defense informed the court the defendant declined to make any statement and directed the court to the early plea which was prosecution delayed due to disclosure, and indicative of the defendant’s acceptance of responsibility, turning out left to avoid worsening a collision, and remorsefulness as mitigating factors. The defendant did not verbally express remorse, though the plea of guilt can be considered a form of remorse.
[50] The Crown did not specifically draw the parties’ attention to the proceedings of the Legislature as set out in Hansard, addressing the offences of careless driving cause bodily harm and careless driving cause death, along with the enhanced penalty provisions that were enacted by §130(3) Highway Traffic Act, though the Crown did request a fine which is double the $2,000.00 minimum as debated under Hansard and required by §130(3) Highway Traffic Act.
Law, Analysis and Conclusions
[51] The spirit of the Legislature’s intent during debates in Hansard and the resulting §130(3) of the HTA intended to “make a clear distinction between careless driving and careless driving causing death or bodily harm.” It gave police officers more time to conduct an investigation, and collision reconstructionists the time they need to do these often-painstaking investigations.
In the first session of legislative debate in Hansard (Legislative Assembly of Ontario- Hansard- June 9, 2016, 41st Parliament, 1st Session) with respect to Bill 213: “An Act to Amend the Highway Traffic Act: Ultimately, the goal is to have penalties in place that discourage careless driving to encourage good choices behind the wheel and to help promote public awareness of the threat posed by motor vehicles in the hands of the wrong person. With Bill 213, both our officers and courts will have the opportunity to send that very clear signal that driving with due care and attention matters.”
Careless Driving Causing Bodily Harm or Death
HTA§ 130(3) (3) Every person is guilty of the offence of driving carelessly who drives a vehicle or streetcar on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person. 2017, c. 26, Sched. 4, s. 17.
Penalty
HTA§ 130(4) (4) On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years. 2017, c. 26, Sched. 4, s. 17.
Joint Submission
[52] A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
[53] Departing from a joint submission is only appropriate when “it is so markedly out of line with the expectations of a reasonable person aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system.” Trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts.” R v. Anthony Cook, (2016) SCC 43.
[54] A joint submission which would result in an unlawful sentence should be rejected, having first given the parties an opportunity to make submissions on the issue. The imposition of an unlawful sentence would put the administration of justice in disrepute and would not be in the public interest. Greater Sudbury (City) v. Valli, (2019) ONCJ 364.
[55] This test recognizes that certainty of outcome is not “the ultimate goal of the sentencing process. Certainty must yield where harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result.” R v. DeSousa, (2012) ONCA 254.
Parity
[56] The court put the parties on notice of being troubled by the joint submission on penalty and allowed the parties the opportunity to provide further submissions. Pursuant to the Supreme Court decision in R v Anthony-Cook, the crown reminded this court it should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to the public interest. This court takes judicial notice of the use of the word “unless” which affords this court discretion to depart from a joint submission on sentence as determined appropriate.
[57] Parity is foundational to the common law. In addition to considering prior §130(3) sentencing decisions, the court must not lose sight that it is the Crown that offers a position on sentencing whether it is a joint position or not. Parity as it relates to the Crown’s sentencing positions on prior related matters, including requesting and ordering a period of custody in similarly aggravating circumstances, is to be considered and weighted here.
[58] The crown argues the joint position does not interfere with the proper administration of justice and is not contrary to the public interest. At paragraph 63 of R v Anthony-Cook, the court is to consider whether the proposed joint submission was close to the range of sentencing to meet the principles of parity. This infers the crown is of the view that by doubling the minimum penalty that ensures the proper administration of justice and ensures a corresponding order is not contrary to the public interest.
[59] The Crown did not provide its rationale to support not weighing the range of up to 2-years in custody, nor weighing an associated period of probation as is provided for in the relevant charging section.
[60] The penalty range is $2,000.00 up to $50,000.00. In addition to the fine range, sentencing could also include a range of a period of time in custody not to exceed 2-years. The Crown indicated it had considered the following aggravating factors to support the position that this matter should resolve by imposing a $4,000.00 penalty that is twice the minimum fine, without also imposing a period of custody or probation that is within the range provided by statute.
[61] The Crown’s submission as to sentencing informed the court of its view that there is a single aggravating factor; that being the profound impact that this collision has had on the families. Indicating, they all expressed their victim impact statements, all their lives have been changed forever by the death of Mrs. Dorothy Sutherland, the injuries to Kenneth Sutherland and Brian Barham, and the injuries to Robert Vervaecke as well as his subsequent death.
[62] Absent from the Crown’s analysis of aggravating factors included: a commercial truck driver’s expected higher level of care, a lack of due care and attention, and not responding timely to the approximate 500 meters available to slow and safely stop a Freightliner.
[63] The Crown ruled-out the application of §130(6) of the Highway Traffic Act that provides whether bodily harm or death was caused to a person who was vulnerable due to a lack of due care and attention, and reasoned those persons exclusively include pedestrians, cyclists or persons working upon the highway, and thereby excluded other vulnerable categories. The crown asserts vulnerability and an associated aggravating factor analysis under §130(6) does not apply here.
[64] To this point, the Crown argues had there been prior driving convictions of this nature, or which show a pattern of not paying due care or attention to users of the road while driving, §130(6) would have been considered by the Crown. This infers the Crown viewed the victims in this matter as not vulnerable, and the presence of prior convictions or a pattern of lack of due care, are required for vulnerability or lack of due care and attention, to be considered aggravating factors.
Section 130(6) and the Vulnerable Person
[65] The intention of §130(6) was to also help promote public awareness of the threat posed by motor vehicles in the hands of the wrong person. In addition to imposing penalties that discourage careless driving and encourage good choices behind the wheel, the intention is to draw attention to the fact that when a motorist is careless and hits a cyclist or a pedestrian, the outcomes are much more significant. R. v. Watson, (2023) ONCJ 50, P. 25.
[66] §130(6) of the HTA states “a court that imposes a sentence for an offence under subsection (3) shall consider as an aggravating factor evidence that bodily harm or death will cause to a person who, in the circumstances of the offence, was vulnerable to a lack of due care and attention or reasonable consideration by a driver, including by virtue of the fact that the person was a pedestrian, cyclist, or person working upon the highway.”
[67] In consideration to deeming a lack of reasonable consideration: §130(5) For the purposes of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway. 2017, c. 26, Schedule. 4, s. 17.
[68] The reference to cyclists, pedestrians or roadside workers is not necessarily exhaustive because the plain statutory language says “vulnerable to a lack of due care and attention… including by virtue of the fact…” The use of the word “including” sets out some specific examples that are not exhaustive, which is a legitimate drafting technique, but the spirit of this legislation still operates to protect anyone vulnerable to a lack of due care and attention and that could include other persons that are not particularized in §130(6).
[69] Reasonably, a vulnerable person subject to a lack of due care and attention would include a vulnerable person who is innocently sitting in a stopped personal vehicle in a line of traffic on a major highway, that is stopped behind a stationary tractor trailer, as much as it would include a vulnerable pedestrian, cyclist, or person working upon the highway, if not more so.
[70] The §130 legislators did not exclude the applicability of a stopped personal vehicle unable to move forward due to circumstances beyond their control, as not being vulnerable. It was not the intention of Parliament to render the type and nature of the vulnerability of the victims in this case as anything other than categorically vulnerable. It was their intention to include this very type of vulnerable victim, and therefore I find the associated factors in this case are to be weighted as aggravating factors under §130(6). To do otherwise would be to ignore the plain statutory language in the statute and would exclude the proper interpretation of “including” and would be an error in law.
[71] The basic rule of statutory interpretation is that the words used are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), (1998) 1 S.C.R. 27, at para. 21; and R. V. Hutchinson, (2014) SCC 19, at para. 16. If possible, every part of the provision should be assigned meaning: Hutchinson, at para. 16. Further, §63 of the Legislation Act, subsection 64(1), “[A]n act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. Legislation Act (2006) c. 21, Sched. F. §64(1).”
[72] Public health and safety is to be generously interpreted in a manner in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with, or frustrate the attainment of, the legislature’s public welfare objectives are to be avoided. Ontario (Labour) v. Hamilton, (2002) O.J. No. 283 (Ont. C.A.)
[73] In this matter, four people were statutorily vulnerable to Mr. Buttar’s lack of due care, attention, and lack of reasonable consideration by a driver, causing a catastrophic outcome. Accordingly, to prevent an error in law, their vulnerability measured against Mr. Buttar’s comprehensive carelessness shall and must be considered when weighing aggravating factors at sentencing.
Aggravating Factors Involving a Commercial Truck Driver
[74] Criminal case law arising from dangerous driving holds that committing an offence as a commercial truck driver can be treated as an aggravating factor. There is no bar why this same principle wouldn’t apply to the Highway Traffic Act. In R v Matharu, (2021) ONSC 4762 at para. 21, numerous aggravating factors were identified with the first one being the fact the driver was a commercial truck driver. He approached heavy stop and go traffic that was clearly visible and required a high degree of attention. The court found the driver being licensed and trained as a commercial truck driver and that he was driving a large heavy tractor-trailer that required more time and distance to slow down and safely come to a stop, and that was capable of causing extraordinary amounts of harm in a collision, is to be held to a higher standard of care which was the standard of care expected of Mr. Matharu.
[75] In R v Du Jardin, (2009) O.J. No. 636 (S.C.) at paras. 25 and 26, “one life was needlessly lost, and another was virtually destroyed under circumstances which are simply unacceptable. A family was forever altered. The Brockville community was yet again reminded of its vulnerability to speeding truck traffic by the tragic consequences of the defendant’s inexplicable actions.” para. 25. “This was not just a driving offence and an inadvertent driver. Truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct.” Para. 26. In R v Singh, (2010) ONSC 3398 at para. 39, the court found the “accused driving a “massive dump truck” had to take extra care and attention because of potential damage in a collision.”
[76] I find Mr. Buttar being a trained commercial truck driver is to be held to a higher standard of care than is expected by other non-commercially trained users of the highway, and as required by Ministry of Transportation licensure. Mr. Buttar operated a large heavy tractor-trailer that required more time and distance to slow down and safely come to a stop. Mr. Buttar’s commercial truck was capable of and did cause extraordinary amounts of harm, a harm that was within Mr. Buttar’s professionally trained control to prevent.
Careless Driving Causing Death - Review of Cases
[77] I reviewed the five cases provided by the Crown within the sentencing brief. I also considered several cases that ordered sentences for a conviction of careless driving causing death. There were no other cases specifically involving a professionally trained commercial truck driver, inattentive to the road and traffic conditions, and colliding into two non-commercial vehicles stopped behind a stopped tractor trailer on a provincial highway.
[78] There were no other cases where a trained commercial truck driver who had a considerable opportunity to notice the stopped vehicles ahead and slow his truck, before driving through the stopped vehicles at a speed of 77 kms per hour.
[79] There were no other cases where a trained commercial truck driver was inattentive and without due care and attention, while operating a vehicle that resulted in the same catastrophic consequences as occurred here.
Commentary on Careless Driving Causing Death – Review of Cases
[80] There are several cases that do inform parity and sentencing principles that must be considered when balancing mitigating factors, and the totality of the aggravating factors that are present here.
R. v. Hiebert, (2022) ONCJ 47 at para. 43
[81] In Hiebert, the remorse demonstrated by the defendant as shown by an early guilty plea and the remorse shown to the victim, meets specific deterrence.
R. v. Kinch, (2004) O.J. No. 486 at paras. 51-53
[82] Whether the driving was careless is dependent upon the acts or omissions of the driver, not the consequences.
R. v. Stupar, (2015) ONCJ 350 at paras. 19, 39, 63
[83] The fact that the driving caused death is a factor that is appropriate to take into account when considering a fit sentence for careless driving.
[84] The consequences of the driving behaviour that gave rise to the charge of careless causing death are severe. The lives of all those affected are irrevocable and dramatically altered.
Parity and Careless Driving Causing Death – Review of Cases
R. v. Bertrim, (2023) ONCJ 236 (Death-Charged under §130(3) HTA).
[85] The defendant stuck and killed a cyclist.
[86] The defense argued Mr. Bertrim was not deliberately driving carelessly, but rather had a moment of inattention that resulted in tragic consequences.
[87] The Crown sought a 4-month custodial sentence, a license suspension, and a period of probation. The Crown offered aggravating factors to include the foreseeability of the tragic consequences and the line of the defendant’s sight, and the unobstructed view.
[88] The court considered the absence of prior convictions, a model citizen, early plea, and the vulnerability of a cyclist and ordered a 14-day intermittent sentence, fine and probation order.
[89] The Bertrim case is factually similar to the case at bar. Both defendants had unobstructed views, foreseeable tragic consequences, and both caused fatalities. Although in Bertrim, there was a “momentary inattentiveness” while here there was approximately 500 meters of inattentiveness, and Betrim had one vulnerable victim as compared to the four effected here.
R. v. Henry, (2023) ONCJ 273 (Death- Charged under §130(3) HTA.)
[90] The defendant was travelling northbound when he crossed into a southbound lane broadsiding a vehicle killing the female passenger, and severely injuring the driver. The roadway was straight and level with no view obstructions.
[91] The Crown sought a 90-day period of custody, 2-years probation, and 100 hours of community service, and a 2-year license suspension.
[92] The defense sought a 45-day intermittent period of custody, a 1–2-year license suspension, with mitigating factors to include an early plea, rehabilitation from a prior life of crime, current stability and a contributing member of the community as confirmed by support letters and the pre-sentence report.
[93] The court imposed an intermittent sentence of 45-days imprisonment, a 2-year non-reporting probation order, and a 2-year driver’s license suspension.
[94] The Henry case is factually similar to the case at bar. The roadways were straight and level with no view obstructions. In both cases victims were either injured or killed as passengers in other cars. Both defendants exhibited volitional driving behavior that resulted in the accident. In Henry, the court ordered a 45-day intermittent period of custody and did not undertake a §130 (6) analysis.
R. v. Ingram, (2023) ONCJ 141 (Death- Charged under § 130 (3) HTA.)
[95] The defendant decidedly passed a vehicle crossing over a double yellow line at a high rate of speed. Two oncoming vehicles swerved to their shoulder to avoid a collision. The defendant struck a third vehicle head-on killing the driver.
[96] The court sentenced the defendant to 75-days intermittent custody, 2 years probation, and a 5-year license suspension.
[97] The Ingram circumstances are factually similar as to careless operation to the case at bar. The Ingram defendant disregarded markings and intentionally drove carelessly causing death. Here, Mr. Buttar did not disregard markings, but he did disregard stopped vehicles on the highway ahead of him while travelling a visibly unobstructed highway. Ingram did not identify a vulnerable person under §130(6) when ordering 75-days of intermittent custody. Here, there were arguably 4 vulnerable victims.
R. v. Josan, (2007) ABPC 300. (Alberta Provincial Court Decision – Traffic Safety Act of Alberta)
[98] The defendant drove a transport truck in the right-hand southbound lane of the highway, when he struck the deceased’s parked truck on the shoulder of the southbound lanes. The defendant admitted to not paying attention for a moment, hit the parked tractor trailer causing that trailer’s load to fall upon the deceased.
[99] The Josan court took notice of no prior convictions, and the defendant did not drive deliberately in a manner he knew to be careless. The court found the driving offence to not be blatant or deliberate.
[100] The court ordered a non-custodial sentence and suspended driving privileges for 60-days and imposed a $2,000.00 fine.
[101] The Josan case is factually different than the case at bar. While Mr. Josan was found to not have been blatant in his careless operation of a tractor trailer, he was found inattentive for a moment. Mr. Buttar’s actions demonstrate a blatant disregard for the safety of all other users of the highway in circumstances where either he knew, or he ought to have known, and where he had approximately 500 meters to consider, that a large, heavy, commercial motor vehicle is capable of causing horrendous injury or death to other person’s using the highway, and to use the considerable distance to slow and stop the Freightliner.
[102] Also in Josan, the court found the driving offence to not be deliberate. Considering the absence of any explanation for Mr. Buttar not utilizing the considerable unobstructed visibility to slow and stop his vehicle, it can not be concluded whether the offence was or was not deliberate, and therefore was not weighted.
R. v. Kreyger, (2020) ONCJ 424 (Death-Charged under § 130(3) HTA).
[103] An Indigenous driver ran a stop sign at 60 kms per hour at her frequented intersection, and collided with the decedents vehicle where he had the right of way, and he did operate his vehicle at 100 kms per hour in a posted 80 km per hour zone, was not wearing a seatbelt.
[104] The court considered Gladue factors, 100 hours of community service voluntarily completed pre-sentence, verbal expressions of deep sorrow and remorse, hopefulness the effective family can forgive her mistake, and ongoing post-traumatic stress effects due to the fatality.
[105] The court deferred to the joint submissions as to sentence and ordered a fine of $2,000.00; a 4-year driving prohibition with no exceptions, and a 2-year probation to include an additional 50-hours of community service.
[106] The Kreyger case is factually different than the case at bar. The defendant disregarded the posted sign, failed to stop and caused a fatal collision. There has been no submission that Mr. Buttar is Indigenous and no submission Mr. Buttar has undertaken any pre-sentence community service hours.
[107] Both Ms. Kreyger and Mr. Buttar did ignore the highway they traversed, but Mr. Buttar is a professionally trained commercial truck driver who has a professional obligation to be vigilant of the dangers of inattentive driving due to the size, weight and associated danger of inattentive and careless operation of his Freightliner.
R. v. Martinez, (1996) O.J. No. 544 (Ont. C.A.) (Death – charged pre-§130(3) HTA, previously charged under §249(4) of the Criminal Code for dangerous driving causing death, which was pled down to careless driving causing death).
[108] The defendant failed to stop at a stop sign at a relatively slow speed striking a van in the intersection.
[109] The court imposed a custodial sentence of 90-days intermittent in jail and one year of probation. On appeal the trial judge was found to have given insufficient weight to mitigating factors and determined a fit sentence was time served at 20-days.
[110] The trial judge accepted the Crown’s submission that the defendant exhibited one of the worst examples of careless driving that could be conceived of, based on the nearly perfect driving conditions, the unobstructed view, and posted and prominent warning signs. The court found the combination of factors were the worst kind and did attract a period of custody.
[111] The Martinez case is factually similar in that the defendant had an unobstructed view, similar to Mr. Buttar’s unobstructed view, and had no prior convictions. The absence of posted warning signs is not relevant to the case at bar, because the defendant was operating a Freightliner on an open stretch of Highway.
[112] The Martinez court found the unobstructed view attributed to the worst kind of careless driving that resulted in a fatality, and therefore required the imposition of a period of custody.
[113] Here, Mr. Buttar had an unobstructed view from an elevated seated position in the cab of a Freightliner, for the approximately 500 meters available to him to utilize to slow and stop his Freightliner. He did not positively respond to the traffic conditions on the road ahead, and therefore, his conduct is equally attributable to the worst kind of careless driving that was found in the Martinez case.
R. v. Miller, 2023 ONCJ 77 (Death – Charged under §130 (3) HTA).
[114] The defendant Miller stuck and killed a cyclist while being momentarily distracted by texting and driving.
[115] The Crown asked the court to impose the maximum sentence of 2-years in jail, and a 5-year license suspension, and probation for 2-years. The defense urged consideration of a non-custodial sentence with no driver’s license suspension.
[116] The court ordered a 45-days period of custody, a driver’s license suspension for 2-years, and was not ordered to probation considering there was no requirement to address rehabilitation or protection of the public. The element of texting and driving is discouraged by statute due to the tragic potential consequences to innocent drivers on the road. Careless driving causing death is elevated by comparison because it requires contravening by a lack of due care and attention, and a death results.
[117] The Miller case is factually different than the case at bar. The defendant was momentarily distracted, and the court found texting while driving a substantial aggravating factor. The defendant had an unremarkable minor HTA record, exhibited extreme remorse, suffered significant post-traumatic stress and engaged in counselling since the time of the offence.
[118] Mr. Buttar drove for a length of time and distance that suggests he had more than a “moment” to respond to the traffic conditions ahead of him on the highway.
[119] The Miller defendant was sentenced to serve 45-days in custody for the death of one vulnerable victim due to distracted driving.
[120] The Crown represented there was no evidence of distracted driving. No alternative evidence was provided to the court to plausibly explain was inattentive for approximately 500 meters. No evidence in the agreed statement of facts explained the reason Mr. Buttar was prevented from taking precautionary measures well before impact.
[121] The defense offered, for approximately 500 meters, “something was there to be seen” [by Mr. Buttar.]
R. v. Taylor-Rawlings, (2019) O.J. 6980 (Death - Charged under § 130(3) HTA).
[122] The Court found this case fell at the lower level of the penalty ranges given the sun and its contributing factor in causing the collision. Mitigating was the guilty plea, remorse, and avoiding the rigors of a trial.
[123] The Taylor-Rawlings defendant received a 2-year driver license suspension, a $3,500.00 fine, and was required to make a $500.00 donation.
[124] The Taylor-Rawlings case’s circumstances are significantly different from the case at bar which supported a non-custodial sentence. That defendant was a novice driver whose action causing impact with a motorcycle was attributable to sun blindness.
[125] Here, there is no such mitigating factor. Mr. Buttar is a professionally trained commercial truck driver and had no identified impediments, who sat with an elevated seat above the road, and a 500-meter unobstructed distance in which to slow his Freightliner, the difference in driving skill and experience when considering parity and the Taylor-Rawlings decision, is substantially aggravating to the case at bar.
[126] Considering the parity principle, I find Mr. Buttar did fail to give his driving the reasonable care and attention that is reasonably expected of a commercial truck driver. As a licensed commercial truck driver, the lack of due care and attention caused catastrophic consequences which must be considered a substantial aggravating factor.
Mitigating Factors
[127] Mr. Buttar has plead guilty at an early opportunity foregoing the burden of a trial.
[128] At the roadside, he took immediate responsibility for his actions and cooperated with law enforcement including agreeing to providing a statement.
[129] Remorse can be mitigating if the offender shows remorse, but that doesn’t make absence of remorse aggravating. Sentencing should not consider a lack of remorse as an aggravating factor to increase a sentencing penalty. R v Reeve, (2020) ONCA 381. An absence of remorse is a relevant sentencing factor, however, with respect to the issues of rehabilitation and specific deterrence, an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the offences committed. R v. Valentini at para. 82; R v B.P. (2004) 33468 (ON CA), 190 O.A.C. 354 (C.A.), at para. 2.
[130] Here, the defense counsel and the pre-sentence report represented the defendant was remorseful. There was no showing of remorse to the victims. However, the presence or absence of a meaningful level of remorse was not weighted as aggravating or mitigating at sentencing.
[131] The hard brake and attempt to turn into the left lane one second before impact is not mitigating in my view. This is an extension of the aggravating factor of operating the Freightliner without due care and attention to the traffic conditions on the highway ahead. Had Mr. Buttar drove with due care, there would not have been a need to brake hard and turn out left. This was an accident that was not sudden, nor was it subject to a momentary inattentiveness.
[132] This was an accident that afforded ample time and distance to slow and stop, had the ample time been used to observe the developing traffic condition which included the visibility of another tractor trailer sitting at a complete stop ahead of Mr. Buttar, a hard brake and last moment attempt at a defensive turn out left, would have been unnecessary. Accordingly, I find this last moment attempt to avoid catastrophic results is not mitigating.
[133] The fact a defendant may lose liberty should he be subject to a period of incarceration, and therefore be unable to work during periods of incarceration, is a consequence that a defendant has a responsibility, as does the general public, to ensure does not happen by safely operating a motor vehicle on the road.
[134] Being unable to work seven days per week as a direct consequence of contravening the law, is not a mitigating factor in my view. I am mindful, that any sentence I impose must ensure the public welfare is not offended and justice is properly administrated.
[135] Mr. Buttar must not to be shielded from experiencing the full consequential weight of his conduct that results from the imposition of a fit and just sentence. To do otherwise is unlawful.
Sentence
[136] I cannot ignore the fact that these families experienced tremendous loss. I acknowledge how difficult and painful this must be for the families to find a path forward without their loved ones and how difficult and painful this must be for the survivors who continue to be affected by catastrophic injuries as daily reminders of their losses. There is no sentence this court can impose that will sufficiently restore the life-changing impact to the families and victims.
[137] The principle of restraint guides all sentencing in both Criminal Code and regulatory statutes. I am alive to the need for restraint and that the sentence imposed is not to be more than is required in the particular circumstances having regard to the relevant factors.
[138] The parties submitted several sentencing decisions for my consideration. A review of these cases and others suggests a variable range of sentences for careless driving causing death and/or bodily harm. I am mindful that the offences before the court today are regulatory offences and not criminal offences. I am to impose a sentence that in the totality of the circumstances is both fit and proportionate to the gravity of the offence. In R. v. Miller (2023) ONCJ 77 at para. 105, the court said: It is therefore necessary to re-emphasize a critical point. The sentence imposed by the Court in this case cannot be seen in any way to represent the valuation of the remarkable life that has been lost. Id. The real difficulty in this sentencing is obvious: Objectively, Ms. Miller was not close to being the worst offender. Although the outcome of the driving conduct was completely devastating, the conduct that gave rise to that outcome cannot be described as the worst offence. Having said that, the driving conduct here was bad. It must be denounced, and future motorists must be deterred. The proportionality analysis, and hence the sentence, reflect this reality. Id at 106. It is impossible for this court to compensate the families for their loss and the significant injuries incurred. However, the driving conduct here is what is to be denounced. Id. §130(3) and (6) requires a fulsome sentencing consideration of the aggravating factors particular to the measure of vulnerability of the four victims subject to Mr. Buttar’s inattention and lack of due care. The lack of a prior conviction and the acceptance of liability at an early instance is mitigating in principle, though it does not fulsomely address the requirement of §130(6). The requirement is a balanced exercise of the totality of vulnerability of innocent victims against the egregious carelessness of a professionally trained commercial truck driver, and the significant and catastrophic outcome resulting from a lack of due care and attention.
[139] Considering specific and general deterrence, both must address the assurance of the safe and efficient use of public roadways for all users. Specific deterrence means the sentence imposed should act as a deterrence to this particular driver from committing similar offences in the future. General deterrence means the sentence imposed should act as a deterrence to the broader community by sending a message that there are significant consequences for committing a similar offence.
[140] There was no evidence offered to shed light on the reason the defendant drove for approximately 500 meters without attempting to slow his vehicle in a manner that would not cause an accident. The crown represented the defendant did not drive distracted. The representation begs the question, “if he wasn’t distracted for approximately 500 meters, then what was he?” This aggravating factor must be taken into consideration when ensuring a just and fit sentence is imposed. With the lack of evidence offered at sentencing regarding cause, it is difficult to assess what alternative measure would significantly denounce the defendant’s driving behaviour and assure safe driving.
[141] Whether the driving was careless is dependent upon the acts or omissions of the driver, not the consequences. R. v. Kinch, (2004) O.J. No. 486 at paras. 51-53. Consequently and certainly, the condition of the victims is aggravating and stands alone as an aggravating factor.
[142] The weighting of the level of carelessness being dependent upon the acts or omission of the driver, requires the aggravating factors to be considered in totality and be proportional to this defendant’s culpability and the seriousness of his contravention when compared to precedent.
[143] The aggravating factors number more than the single one identified by the Crown. The aggravating factors include the lack of due care and attention, the vulnerability and experience of the victims and their families, and also the elevated expectations of a commercial truck driver in the circumstances before this court. The mitigating factors include an early-stage plea, response at the roadside, cooperation with the investigation, and no prior record.
[144] Parity in sentencing of prior cases involving careless driving causing death, afforded a period of custody when the outcome was catastrophic, and the driver demonstrated an egregious disregard for due care and attention. First offenders were sentenced to custody, and the Crown requested custody in a variety of circumstances not dissimilar, and a period of custody was requested without the inclusion of a §130(6) analysis.
[145] I find the totality of the aggravating factors are not offset by the mitigating factors. The joint position offered for consideration does not fall within the range of sentencing when fulsomely considering proportionality, totality, denunciation, mitigating and aggravating factors and parity.
[146] For these reasons, I reject the proposed joint sentence submission because the submission is so markedly out of line with the expectations of a reasonable person aware of the circumstances of this case that they would view the proposal as a breakdown in the proper functioning of the court.
[147] The imposition of an unlawful sentence puts the administration of justice in disrepute and would not be in the public interest.
[148] Certainty must yield where harm caused by accepting the joint submission [as to sentence] is beyond the value gained by promoting certainty of result.
Sentence
[149] Mr. Buttar please rise. I have determined a fit and appropriate sentence in this matter. I order to a period of custody of 95-days, reduced to 50-days after a fulsome consideration of all sentencing principles including balancing aggravating and mitigating factors, especially the responsibility taken at the roadside after the accident. Further, I order you [into] an 18-month reporting probation, a driving license suspension of three years commencing today, and no fine is ordered.
Intermittent Sentences
[150] In R v Middleton (2009) SCC 21; [2009] 1 S.C.R. 674 and R v Burill (2022) O.J. No. 2696, the sentencing analyses provides a guide to intermittent sentencing. In Middleton, the Supreme Court of Canada commented on the use of intermittent sentences: “Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of ‘real jail time’ and the rehabilitative functions of preserving the offender’s employment, family relationships and responsibilities and obligations to the community. para. 45.”
[151] I am satisfied that an intermittent sentence balances denunciation, deterrence, the principles of rehabilitation and restraint, while permitting the defendant to contribute to society through continued employment, which serves the ends of justice.
[152] A term related to the intermittent sentence will also be included in the probation order: You must appear at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance except pursuant to a lawfully obtained prescription. I include this term of the probation order as a standard term as required by the local probation office and not in reflection of any facts or circumstances of this case. Community service hours will not be ordered as part of your probation order. Section 63(2) of the POA states that the court may order custody to commence on a day not later than 30-days after the day of sentencing.
[153] Mr. Buttar will be taken into custody today to be processed at the Maplehurst Detention Centre, released and thereafter serve 50-days in custody intermittently on weekends between the hours of 8:00 pm on Fridays and 6:00 am Monday. You must present yourself to the institution to begin serving your sentence on Friday, September 6, 2024, and each weekend thereafter until the expiration of the sentence.
[154] Mr. Buttar is to surrender his driver’s licence to the court today.
Probation Order
[155] Pursuant to s.72(2)(3) of the POA, the probation order will include the following conditions:
S. 72(2) POA a) The defendant not [to] commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; b) The defendant shall appear before the court as and when required; and c) The defendant shall notify the court of any change in the defendant’s address until sentence is satisfied and probation is completed. d) The defendant shall keep the peace and be of good behavior.
s. 72(3) POA In addition to the conditions set out in subsection (2) the court orders the following conditions: a) Pursuant to §72(3)(c) the defendant is to attend supportive services as directed by your probation officer. You are to sign releases of information naming the probation office and/or probation officer, for the purposes of monitoring your participation in referred programs or services. b) You are to report to the Brantford Ministry of Community Safety and Correctional Services within 10 business days from today. You are to attend thereafter, as directed by your probation officer. This probation order is to be transferred to a probation and parole office nearest to your residence.
[156] I find this sentence ensures justice is seen to be done, addresses both specific and general deterrence, appropriately balances both aggravating and mitigating factors, considers denunciation, deterrence, proportionality and totality, and does not contravene the interests of justice, nor places the administration of justice in disrepute, nor otherwise offends the public welfare, and is within the range imposed for similar offences, with or without a §130(6) vulnerability analysis.
[157] I am satisfied that this penalty appropriately addresses count 1 in totality. Courts 2, 3, and 4, as requested by the Crown, are endorsed as withdrawn pursuant to the resolution position.
Released August 15, 2024, in Brantford, Ontario