ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JEREMY JASON GLENFIELD

E X T R A C T O F C O U R T P R O C E E D I N G S

R E A S O N S F O R S E N T E N C E A N D S E N T E N C E

BEFORE THE HONOURABLE JUSTICE T. A. HEENEY

on September 21, 2015, at KITCHENER, Ontario

APPEARANCES:

A. Rajna Counsel for the Crown

P. Burstein and R. Burke Counsel for the accused

ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S

Reasons for Sentence Page 1

Sentence Page 17

Transcript Ordered September 22, 2015

Transcript Completed October 9, 2015

Ordering Party Notified.................. October 9, 2015

MONDAY, SEPTEMBER 21, 2015

R E A S O N S F O R S E N T E N C E

HEENEY, J. (Orally):

On July 29, 2015 Jeremy Jason Glenfield was arraigned on counts two and three on the indictment and entered guilty pleas to both of those counts. The facts were read in at that time and convictions were entered on both counts. Count two relates to the offence of dangerous driving that caused the death of Jeremy Huber, contrary to Section 249 (4) of the Criminal Code. And count three is that the accused failed or refused without reasonable excuse to provide a breath sample to a police officer pursuant to a demand when he knew, or ought to have known, that his operation of a motor vehicle had caused an accident that resulted in bodily harm to another person, contrary to section 254 (5) of the Criminal Code. He was not arraigned on count number one which is impaired driving causing death, contrary to section 253 (1) and 255 (3) of the Criminal Code. That count will be withdrawn by the crown pursuant to the resolution that was arrived at between the crown and defence counsel.

The facts are set out in the agreed statement of facts which was read into the record on July 29 and marked as an exhibit, which the accused has confirmed to be correct. To summarize, the accused was driving his Jeep westbound on Gerber Road at approximately 9:12 p.m. on December 22, 2011. He was speeding in that he was driving at about 20 to 30 kilometres per hour above the speed limit, however his speed declined somewhat as his vehicle went up the hill approaching the scene of the accident and was travelling at about 86 kilometres per hour just before the accident happened at the intersection of Gerber Road and Nafziger Road. The accused failed to stop at the stop sign which required westbound traffic to stop, and which would have been visible to a westbound driver. This is so despite the presence of a warning sign further back along Gerber Road, that warned of a stop sign ahead. As he entered the intersection, Mr. Huber was lawfully driving his Dodge minivan through the same intersection and had the right of way. The accused's Jeep struck the Huber vehicle broadside. Mr. Huber had no chance to avoid the collision and his son, Jeremy Huber, who was seated behind the driver, was directly in the path of the oncoming Jeep. The impact was severe and Jeremy was fatally injured. An unreasonable period of attention explains why the accused did not see the warning sign or the stop sign while travelling at a high rate of speed. It constitutes a marked departure from the norm. That marked departure caused the fatal crash and those facts satisfy the essential ingredients of dangerous driving causing death. The accused had consumed some alcohol prior to the collision. He had had a drink in the kitchen of the Muschamp residence and another drink or two at a neighbour's residence. He took with him a bottle of Smirnoff Ice which was found by the police officer in the car lying on its side after the collision with a small amount of alcohol still in the bottle. A citizen who was present at the scene spoke to the attesting officer, Constable Foster, and described the accused as being intoxicated and suggested that he be given a breathalyzer. However, Constable Foster, in his interactions with the accused at the roadside, did not form the opinion that the accused's ability to drive was impaired by alcohol. He was however able to detect an odour of alcohol on the accused's breath which gave him grounds to demand a roadside test. After three unsuccessful attempts the accused finally blew a fail and was arrested and taken to the police station. Two and a half hours later he was given a demand for a breath sample under section 254 (3) of the Criminal Code. He blew seven or eight times, each time failing to provide a sufficient sample for analysis. He was repeatedly warned that he would be charged with refusal if he did not follow the officer's instructions about how to provide a suitable sample, and in particular that he keep blowing into the machine until the sample was sufficient. The accused never did provide a suitable sample. It is clear that he knew at that time that at least one of the occupants of the Huber motor vehicle had suffered serious bodily harm from the collision and that satisfies all of the essential elements of count three.

The background of the accused is that he was born on October 13, 1978. He has no siblings. He grew up in the Waterloo Region. He was an excellent student at school. He was a hard worker. He began working at age 15 selling cars and after a few years realized that he should upgrade himself so that he could better his prospects for future advancement, and he went back to school, to Conestoga College, for three years and got a business management degree. He's been working at Dean Myers selling cars for about 15 years. He is described by everyone who has had any involvement with him as a very hard worker. As I say, he began working at age 15. He habitually works 50 hours a week and even though he was always working very hard at this own jobs he never failed to provide support to his parents and contribute work to their business. He has a very supportive family and he, in turn, is supportive of his parents. It's clear that he has strong family values. He was married this past January and he and his new wife plan to start a family which will obviously have to wait until after he serves his sentence. He will also be starting over in the working world after his release because his criminal record means he can no longer sell cars and he has lost his job at Dean Myers. Given his strong work ethic, though, it is clear that he will undoubtedly resume becoming a productive member of society before long.

This case can only be described as a tragedy. An 11-year-old boy was killed as a result of the marked departure in the manner in which the accused operated his motor vehicle. To add to the tragedy, this is the second loss that the Huber family has suffered. They had lost another son to a car accident only nine months before this event. Jeremy was a bright, energetic and creative child with a love of nature, who loved and was loved by his family. The poem that he wrote at age ten that his mother read in as part of her victim impact statement offers a brief glimpse of who Jeremy was and it is impossible to listen to it without being deeply moved. It is also clear that Jeremy was a reflection of his parents, who have dealt with this tragedy in a manner that stands as an example to all of us. They have openly forgiven Mr. Glenfield for what he did and have been nothing but kind and courteous to him and to his counsel throughout. The fact that Mrs. Huber went over to comfort Mr. Glenfield at the scene of the accident, while her own son was being treated for what proved to be fatal injuries, demonstrates a sense of humanity and compassion that is nothing short of inspirational.

In considering sentence the Court takes into account aggravating and mitigating circumstances. It is an aggravating factor that alcohol was involved in this case, although not to the level amounting to impaired driving, and that count is to be withdrawn. The second aggravating factor is that the accused refused to comply with a lawful demand for a breath sample. I agree with Mr. Burstein that the impact of that factor is offset somewhat by the fact that this represents a separate and distinct offence which is being dealt with by a consecutive sentence.

There are, however, mitigating circumstances. First and foremost the accused has pleaded guilty and has thereby waived his right to a trial and thereby eliminated the possibility of a verdict of acquittal. The plea was late in coming but it is nevertheless significant. He did so in the face of triable issues and thereby gave up the prospect of a favourable outcome with respect to those issues. This guilty plea also brings proceedings to an end and will allow some degree of closure for the Huber family. It is a mitigating factor that the accused has no criminal record, or any record for bad driving at all, and comes to this Court as a first offender. He has an excellent background and a supportive family. Many reference letters have been filed that attest to the fact that he is a hardworking man dedicated to his parents who has never had any problems with alcohol or substance abuse. It is clear from the materials filed that these offences are entirely out of character, and what that means is that the prospects for further behaviour of this kind are virtually nonexistent. It is a mitigating factor that he has been on restrictive terms of bail since his arrest in 2011. He has also expressed deep remorse for what he has done, both in open court here today to the Huber family directly, but also to many others in the past as reflected in the letters filed.

There is a joint submission before the Court that was arrived at pursuant to resolution discussions between counsel. Part of that is the withdrawal of count one, impaired driving causing death. The withdrawal of one or more counts in exchange for a guilty plea to another count or counts is a normal and necessary part of the administration of justice in Canada. There are many considerations that go into the decision to do so, particularly the strength, or not, of the crown's case and the likelihood of conviction as it relates to each count on an indictment. The decision in this case to withdraw count number one was made as a result of discussions between Mr. Russell, a highly experienced and respected crown attorney, and Mr. Burstein and Mr. Burke, both highly experienced and respected defence counsel. There is no basis for me to second guess that agreement. Indeed it is appropriate to observe that, given the observations of Constable Foster at the scene, there are obvious weaknesses in the crown's case with respect to count one that were, no doubt, taken into account along with many other considerations of that kind.

As to the disposition proposed for counts two and three, the joint submission is that the accused receive two years incarceration on count two and a further three months incarceration on count three, consecutive, for a total sentence of 27 months, together with a prohibition on count two from driving for a period of four years. That is a significant sentence. It will be served in penitentiary as opposed to a provincial institution, where the accused will spend his time among hardened criminals.

The law is clear that joint submissions arrived at between experienced counsel are to be afforded a great deal of deference. In Regina v. DeSousa, 2012 ONCA 254, [2012] O.J. No. 1709 (C.A.) from the Court of Appeal, Mr. Justice Doherty, speaking for the Court said the following at paragraphs 15 and 16:

Resolution discussions between informed and competent counsel and guilty pleas based on joint submissions as to the disposition are a "proper and necessary part of the administration of justice in Ontario"."

And he was there quoting from the Honourable G. Arthur Martin from his report on the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions from 1993.

Justice Doherty continues:

A joint submission should provide the trial judge not only with the proposed sentence but with a full description of the facts relevant to the offender and the offence. Advanced in this way the joint submission gives the trial judge a proper basis upon which to determine whether it should be accepted. A trial judge is not bound by a joint submission. The imposition of a fit sentence is ultimately the trial judge's responsibility. See Regina v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445, at para. 7 (Ont. C.A.).

Trial judges must however give considerable weight to joint submissions. A trial judge should depart from a sentence proposed in a joint submission only in limited circumstances. Finlayson, J. A. put it this way in Cerasuolo at paragraph 8..."

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute. This is a high threshold and is intended to foster confidence in an accused who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

In considering whether the joint submission that is before the Court here today is contrary to the public interest and would bring the administration of justice into disrepute, it is important to consider whether the proposed sentence falls within the reasonable range of sentences imposed in similar cases in similar circumstances. Counsel have provided me with a wealth of case law in that regard, some of which I will now review.

In Regina v. Guay, [1986] O.J. No. 329, (C.A.), the Ontario Court of Appeal allowed an appeal of a three year sentence that was imposed for criminal negligence causing death, which is a more serious offence than we're dealing with here. There, as here, the accused had been drinking prior to the accident but there was evidence in that case that his blood alcohol level was in fact above the legal limit. He was also driving with excess speed when he drove off the road and killed his passenger, but the Ontario Court of Appeal reduced that three year sentence to one of 18 months.

In Regina v. Phillips, 2005 1043 (ON CA), [2005] O.J. No. 155 (C.A.) a 30 month sentence for dangerous driving causing death was upheld by the Court of Appeal. In that case the accused struck a pedestrian and then left the scene, which is a separate offence for which he received an additional six months. The Court observed that the range of sentence for dangerous driving causing death is very broad and found no error in principle in the 30 month sentence that had been imposed in that case.

Regina v. Currie, [2004] O.J. No. 5196 (C.A.), the accused was convicted of dangerous driving causing death after he drove his vehicle into a dock at significant speed resulting in the death of one of the passengers from drowning. He was sentenced in that case to two years less a day, plus a five year driving prohibition. That sentence was upheld by the Court of Appeal.

In Regina v. Barnes, [1999] O.J. No. 119 (C.A.), the accused was sentenced to three years imprisonment for dangerous driving causing death and impaired driving, although the jury had in fact acquitted him of impaired driving causing death. The Court of Appeal allowed that appeal and reduced the sentence for dangerous driving causing death to two years less a day. It found that the trial judge erred in sentencing the accused to three years on the basis that the accident was alcohol related despite the finding of a jury that his impairment did not cause the accident. Similar reasoning can be applied to the case before the Court today. While there is some evidence of alcohol consumption, the accused is being sentenced here for dangerous driving causing death not for impaired driving causing death.

In Regina v. Atherfold, [2006] O.J. No. 3935 (C.A.), the Court of Appeal upheld a sentence of 12 months incarceration for dangerous driving causing death where, like the case before this Court, alcohol was a factor in the accident.

Regina v. Sukhnanan, [2004] O.J. No. 4019 (S.C.J.) Justice Dambrot imposed a sentence of two years less a day for impaired driving causing death where the accused was driving at about a hundred kilometres per hour on a city street at the time when his blood alcohol content was more than double the legal limit.

In Regina v. LaChappelle, 2007 ONCA 655, [2007] O.J. No. 3613 (C.A.), a sentence of 21 months was upheld following convictions for impaired driving causing death, impaired driving causing bodily harm and impaired driving. In that case the accused crossed the centre line of a two lane highway striking a southbound vehicle, killing the driver and permanently injuring the driver's daughter.

In Regina v. Brisson, [2006] O.J. No. 2183 (C.A.), the Court of Appeal upheld a sentence of two years less a day plus three years probation on convictions for criminal negligence causing death, a more serious offence than this, impaired driving causing death and driving with more than the legal limit of alcohol in his blood.

In Regina v. Brisson, [2003] O.J. No. 6216 (S.C.J.) Justice Weekes imposed a sentence of two years less a day plus probation for dangerous driving and impaired driving causing death where the accused drove at an excessive rate of speed on a windy, hilly, narrow road while impaired by alcohol and suffering from a lack of sleep, and drove off the road killing his passenger.

There are of course other cases where higher sentences were imposed than the one agreed to in the joint submission. Regina v. Munro, [2005] O.J. No. 3431 (C.A.), a three and a half year sentence was upheld by the Court of Appeal where the accused drank all day at a golf tournament, refused offers to drive him home, got behind the wheel of a car with a blood alcohol content of between 240 and 290 milligrams of alcohol in 100 millilitres of blood, which is between three and four times the legal limit, and then collided with an oncoming vehicle in the opposite lane, killing a 69-year-old grandmother and severely injuring another passenger.

In Regina v. McVeigh, 1985 115 (ON CA), [1985] O.J. No. 207 (C.A.), the Ontario Court of Appeal increased a sentence of 21 months to one of three years where the accused was convicted of the more serious offence of criminal negligence causing death. The accused in that case was very drunk when he struck and killed a 14-year-old boy while the boy was sitting on his bicycle on a well-lit and dry multilane residential parkway. Aggravating factors in that case, which are not present in the case before this Court, included the fact the accused there had a longstanding problem with alcohol abuse which he refused to acknowledge or seek treatment for.

And of course Regina v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 (C.A.), Rob Ramage, the well known hockey player, was convicted of impaired driving causing death, dangerous driving causing death, impaired driving causing bodily harm and dangerous driving causing bodily harm. Those charges arose from a motor vehicle accident that occurred when Ramage's car crossed four lanes of traffic on a busy road and struck two oncoming vehicles. Keith Magnuson, another hockey player who was in his car, was killed and the driver of one of the other vehicles was injured. Mr. Ramage's blood alcohol content was between 229 and 292 mgs of alcohol in 100 mls of blood, which averages out to about three times the legal limit. He was sentenced to four years incarceration plus a five year driving prohibition. Justice Doherty, speaking for the Court, indicated that he was initially inclined to allow the appeal and reduce the sentence but ultimately concluded that the trial judge had not demonstrated an error in principle, so that his sentence should be afforded deference. The factors that distinguish that case from the one before the Court include egregious driving and an extremely high blood alcohol content.

Other cases were submitted by counsel but it is not necessary to refer to all of them. It can fairly be said that the cases most similar to the one presently before the Court imposed a sentence in a range from 12 months to two years incarceration, which is entirely in line with the proposed joint submission. The cases which impose higher sentences can generally be described as ones involving the more serious offences of impaired driving causing death or criminal negligence causing death, where the accused was driving with a high level of alcohol in his blood and which generally involved more egregious driving behaviour. None of that is present in the case before the Court.

I conclude that the proposed joint submission falls within the reasonable range of sentences of offences before the Court for offences of this nature, in circumstances of a similar nature. I conclude that it would not be contrary to the public interest, nor would it bring the administration of justice into disrepute, to accede to such a joint submission. Nothing the Court does here today can undo the tragedy that has befallen the Huber family or bring back their precious son. However Mr. Glenfield has accepted responsibility for his actions and has pleaded guilty. He has expressed remorse here in court today, and I have no doubt that he will continue to carry the burden of remorse long after this case is concluded. The proposed penitentiary sentence of 27 months is a significant one and meets the objectives of general and specific deterrence and denunciation, and it is clear that

the accused is an excellent candidate for rehabilitation. For all of these reasons I will accede to the joint submission. Mr. Glenfield will you stand up please?

S E N T E N C I N G

I have endorsed the indictment as follows. For oral reasons, and pursuant to a joint submission, the accused is sentenced to 24 months incarceration on count number two and is prohibited from driving in Canada for four years. The accused is sentenced on count three to three months incarceration, consecutive to the sentence on count number two, for a total sentence of 27 months in penitentiary. An order will go with respect to each count that the accused provide a DNA sample. Count one is withdrawn at the request of the crown.

MR. RAJNA: Thank you.

THE COURT: Do you have your driver's licence Mr. Glenfield? You don't. Has that previously been surrendered?

MR. GLENFIELD: It was but then it was given back because I've been driving for the last four years, but it was given up for three months, but I don't have it with me today.

MR. BURSTEIN: I'll make sure it gets to the court. That's my oversight Your Honour.

THE COURT: Okay.

MR. GLENFIELD: Sorry, I didn't....

MR. BURSTEIN: Because of the gravity of the matter I had forgotten about the more mundane, still significant, but I'll make sure that gets to the court.

THE COURT: That will be surrendered then at the earliest opportunity.

MR. BURSTEIN: Thank you.

THE COURT: Thank you. That bring matters to a close.

MR. RAJNA: Yes sir.

THE COURT: I am greatly indebted to counsel for their assistance.

MR. BURSTEIN: Thank you Your Honour.

MR. RAJNA: Thank you Your Honour.

THE COURT: And best of luck to the, to the Huber family.

Deborah M. Nihls

ACT No. 7475464939

debreport@hotmail.com

(519) 742-0817