ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-0086-00
DATE: 2015-10-14

B E T W E E N:

Her Majesty The Queen,

Mr. D. Mitchell, for the Crown,

• and -

Sheldon Yesno,

Mr. D. Dubinsky, for the Defence

Accused

HEARD: August 17, 2015
at Thunder Bay, Ontario

Madam Justice H.M. Pierce

Reasons for Sentence

Delivered Orally

Overview

[1] Sheldon Yesno pleaded guilty to charges of criminal negligence in the operation of a motor vehicle, contrary to s. 220(b) of the Criminal Code, and failing to remain at the scene of a motor vehicle accident, contrary to s. 252(1)(a) of the Code. Count #1 is withdrawn at the request of the Crown.

[2] The events leading to the charges took place on October 1, 2013, on a major artery in the City of Thunder Bay. The court must determine an appropriate sentence in all the circumstances.

Circumstances of the Offence

[3] The circumstances of the offence are peculiar. The agreed statement of facts establishes that Ross Wapoose engaged in a drug transaction with the victim, Richard Vrastak, outside the casino on October 1, 2013. Wapoose alleged that Mr. Vrastak sold him “fake cocaine.” When he realized that the cocaine was not genuine, Wapoose and Mr. Yesno got into Yesno’s minivan and went looking for Mr. Vrastak. Mr. Yesno was the driver.

[4] Wapoose and Yesno located Mr. Vrastak riding his bicycle southbound on the sidewalk on Algoma Street. Yesno steered his vehicle across the oncoming lane of traffic, mounted the curb near Mr. Vrastak, and then swerved back into his proper lane where the minivan travelled parallel to Vrastak, who continued riding his bicycle southbound on the sidewalk.

[5] Soon after, Mr. Vrastak cycled across the entrance to a parking lot adjacent to Algoma Street. Mr. Yesno again turned his vehicle across the lane of oncoming traffic and cut off Mr. Vrastak’s bicycle, striking him in the process. By pleading guilty, Mr. Yesno acknowledges that he behaved with a wanton or reckless disregard for the lives or safety of others.

[6] The force of the collision propelled Mr. Vrastak into the nearby building where he struck his head. He was not wearing a helmet and suffered severe head injuries. Mr. Vrastak ultimately died on October 3, 2013.

[7] After the collision, the Yesno vehicle stopped momentarily and then left the parking lot. The offender did not get out of the vehicle to offer Mr. Vrastak assistance or summon medical help. Instead, Mr. Yesno returned to his residence where the minivan was located by police. Video surveillance documented these events. Mr. Yesno was arrested on October 2, 2013.

Circumstances of the Offender

[8] Mr. Yesno is now 34 years of age. He is an aboriginal man who is married and has six children ranging in age between 1 – 11 years. In his youth, he was a good student. After completing high school, he attended Confederation College for almost two years. He has an unrelated criminal record with convictions in 2005 for two counts of assault and one charge of breach of undertaking, and in 2010, a further conviction for assault. Each sentence was served in the community.

[9] Mr. Yesno has a positive work record and is employed as a private contractor for Outland Reforestation. He is deeply involved in his church. He is remorseful for his actions and has apologized to Mr. Vrastak’s family.

Gladue Factors

[10] The offender’s parents and grandparents suffered the torments of residential school. In his early years, Mr. Yesno lived with his family at the remote Eabametoong First Nation, formerly known as Fort Hope. He is one of four children. His father was a leader in the community, frequently serving as Chief or in other senior positions; he continues to offer leadership in the broader aboriginal community.

[11] Mr. Yesno’s father had a drinking problem that upset the home in the offender’s early years. However, Mr. Yesno’s mother, a homemaker, was a stabilizing force, and sheltered her children from the problems in Eabametoong, including violence, drug abuse, and alcoholism. The offender’s father quit drinking when Mr. Yesno was in primary school, which assisted his mother in providing a happy, caring home environment. Given his antecedents, the offender’s stable upbringing was a rare experience. The presentence report notes that despite his background, Mr. Yesno “was raised with a minimal appreciation of his cultural heritage and has only begun to explore that tradition.”

[12] The family moved to Thunder Bay when the offender was about 11; he continued with his schooling until he was 22 at which time he returned to live in Eabametoong. Unfortunately, during his late teens, Mr. Yesno fell in with peers who abused drugs and alcohol. The offender and his wife became addicted to narcotic pills in about 2005 and, as a result, domestic assaults and separations marred their family life. These negative patterns were reinforced by the problems of social breakdown in Eabametoong.

[13] The couple and their children returned to Thunder Bay in 2010. The offender’s wife entered a methadone program and was able to conquer her addiction. However, Mr. Yesno continued to be addicted until faced with these charges. He was jailed for two months before his release on bail. During that time, he detoxified under medical supervision. Upon his release from jail, he took a 14–week outpatient substance abuse program sponsored by the Thunder Bay Indian Friendship Centre. As well, he engaged in personal counselling for over a year.

[14] Mr. Yesno has a good relationship with his parents and extended family and has invested himself in the care and nurture of his children. Observers describe him as an excellent father.

Impact on the Victim’s Family

[15] Victim impact statements were filed by two of Mr. Vrastak’s former spouses, two of his daughters, and his sister. All express a profound sense of loss. There is shock at the suddenness of his passing, and sadness for a life interrupted. There is also deep loneliness that Mr. Vrastak, who was described as having been a loving father, will be unable to watch and nurture his children as they develop. Naturally, Mr. Vrastak’s family also feel angry that his life was needlessly taken. The court offers its sympathy to Mr. Vrastak’s family for their loss.

Legal Parameters

[16] Section 220(b) of the Criminal Code prescribes a maximum sentence of life imprisonment for the offence of criminal negligence causing death. The defence acknowledges that a conditional sentence is not available. As counsel agree, the range of sentence for this offence varies widely. In discussing a range of sentence for criminal negligence causing death, the Court of Appeal observed in R. v. Linden, 2000 15854 (ON CA), [2000] O.J. No. 2789, paras. 2 – 3:

The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies a range-setting exercise….

The more that the conduct tends toward a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required….

[17] Finally, a person who fails to remain at the scene of an accident pursuant to s. 252(1)(a) is liable, upon indictment, to a term of imprisonment for a term not exceeding five years.

Positions of Crown and Defence

[18] The Crown submits that a sentence of between 7 – 9 years should be imposed for the count of criminal negligence and between 1 – 2 years consecutive for leaving the scene along with ancillary orders. The Crown argues that in these circumstances, a global sentence of up to ten years is not inappropriate. With respect to Gladue factors, the Crown contends that the more serious the conduct, the less weight will be given to Gladue factors upon sentencing.

[19] The defence submits that a term in the upper reformatory range should be ordered, together with probation on terms recommended in the pre-sentence report and ancillary orders. In respect of a weapons prohibition, the defence seeks an exemption for sustenance hunting, pursuant to s. 113 of the Criminal Code.

Case Law

[20] In its submissions, the defence did not file any case law, contending that the range of penalty varies too widely to provide assistance to the court. The Crown filed nine authorities in support of its submissions. I will first consider the authorities that deal with a conviction for criminal negligence causing death, which is the most serious offence here.

[21] The Ontario Court of Appeal reviewed the sentence of Madam Justice Baig in R. v. Shore, [2001] O.J. No. 3801. The trial sentencing decision is reported at [1999] O.J. No. 1545 (Ont. Prov. Ct.). The circumstances of that case are summarized in the headnote:

Shore was driving from Winnipeg to Toronto to sell the stolen car in which he was travelling. Shore’s driver’s licence was expired. Shore stole some gasoline, and the station owner alerted police. Police soon observed the vehicle and began to pursue it. In response, Shore accelerated, passing other vehicles and swerving into oncoming lanes at speeds up to 160 kilometres per hour. Eventually, Shore swerved into an oncoming lane and collided head on with a vehicle travelling in the opposite direction. The sole occupant of the other vehicle, a 34-year-old mother of two young children, was killed instantly. Shore suffered minor injuries from which he had recovered. His driving record included convictions for speeding, careless driving, driving an unregistered vehicle, and failing to stop for police. He had a criminal record, and was on probation from a conviction for break, enter and theft when this incident occurred. Shore pleaded guilty, and expressed great remorse.

[22] Shore was 20 years old at the time of the offences. He was sentenced to nine years imprisonment for criminal negligence causing death, together with other dispositions. The trial judge found that an aggravating factor was that “he deliberately drove in a manner calculated to cause mayhem.”

[23] In reviewing the sentence, the Court of Appeal concluded that the sentence was not excessive, particularly in view of the deliberate nature of the offender’s conduct.

[24] In R. v. T.Y., [2000] O.J. No. 4278, (Ont. Ct.), the court emphasized denunciation and general deterrence. A sentence of eight years was imposed upon a conviction for criminal negligence causing death. The offender ignored a police order to show his hands and accelerated his stolen car in order to escape police. He drove erratically through a neighbourhood at a high rate of speed, while pursued by police. He ignored several stop signs and ran a red light at the intersection to a shopping plaza where he hit a woman, fatally injuring her. The offender had a criminal record with 36 convictions, including a similar incident six years previously in which no one was killed. He pleaded guilty and expressed remorse. He was the product of a difficult childhood.

[25] In R. v. Trodd, Superior Court of Justice, Sudbury file #96/01, (unreported) an aboriginal young offender, who was tried as an adult, was sentenced to a cumulative seven years’ imprisonment for two counts of criminal negligence causing death, leaving the scene of an accident, theft of an automobile, and breach of recognizance. The offender was driving a stolen car when the police gave chase. He travelled at high rates of speed, crossed a median, and proceeded against a red light when he struck and killed a police officer who was on foot. In coming to rest, the vehicle skidded into a light standard and caused the death of a passenger in the vehicle. The offender fled the vehicle. He was, at this time, on a recognizance with a curfew and a requirement not to drive a motor vehicle. Despite his young age, 16, he had a significant criminal record. He had been involved in a similar high speed police chase only four months prior to this accident, fortunately with no loss of life. The court considered that the young offender pleaded guilty and appeared remorseful.

[26] The sentence appeal was dismissed by the Court of Appeal (October 15, 2002).

[27] In R. v. Combes, 2009 BCSC 539, the court imposed a 12 month consecutive sentence for leaving the scene in addition to five years for criminal negligence causing death. At para. 79, the sentencing court cited R. v. Gummer, (1983), 1983 5286 (ON CA), 38 C.R. 3d, 46 (Ont. C.A.), where the court observed that the duty of the accused to remain at the scene of an accident and “discharge the duties imposed upon him” protects a different social interest than in the offence of dangerous driving. Adopting that reasoning in R. v. McCrea, 2008 BCCA 227, the British Columbia Court of Appeal also approved the imposition of consecutive sentences for offences of failing to remain at the scene: para. 80.

[28] The facts underpinning the sentence in Combes are that the offender, a 27-year-old aboriginal man with a record of 38 convictions, drove in a stolen car at high speeds through residential neighbourhoods, trying to escape police. He ran several stop signs before colliding with another car, killing the driver within minutes. Combes ran from the scene. He was an alcoholic and a methamphetamine abuser who came from a dysfunctional family, spending time in several foster homes.

[29] In R. v. Caron, 2000 SKQB 298, a 20-year-old aboriginal man pleaded guilty to two counts of criminal negligence causing death; one count of criminal negligence causing bodily harm; one count of possession of a stolen vehicle; and one count of breach of recognizance. He was sentenced to a total of seven years in prison in addition to the 13.5 months in pre-sentence custody. The sentences imposed for two counts of criminal negligence causing death were six and one-half years each, concurrent.

[30] In R. v. Mascarenhas, 2002 41625 (ON CA), [2002] O.J. 2989, the Ontario Court of Appeal sustained a sentence of nine years concurrent for two convictions for criminal negligence causing death. The offender, who was 46 at the time of sentencing, had a 15-year history of serious alcohol abuse, and was on a recognizance at the time not to drink or drive. Nevertheless, his blood-alcohol readings were more than four times the legal limit. While so impaired, his vehicle struck and killed two pedestrians.

[31] Finally, in R. v. Coombs, 2006 ONCJ 441, the accused was convicted of three counts of criminal negligence causing bodily harm after a road rage incident. His blood-alcohol level was three times the legal limit when he veered into another vehicle at a high rate of speed and then lost control, crossing the median. The occupants of the first vehicle struck were very seriously injured. Next, he struck another vehicle, causing less severe injuries to the driver. Coombs, a truck driver, was a married father of a 12-year-old son, and had no criminal record.

[32] The trial judge accepted a joint submission and imposed a sentence of five years, which he noted would have been longer but for the joint submission of counsel.

Mitigating and Aggravating Factors

[33] Section 718.2 of the Criminal Code requires the sentencing judge to increase or decrease the sentence imposed by any aggravating or mitigating factors related to the offence or the offender. There are several mitigating factors in this case. The offender pleaded guilty and has expressed remorse. He has demonstrated a willingness to change by using his time in custody to detoxify from the influence of illicit drugs and then has followed up with a treatment program and counselling upon his release. His criminal record is minimal and unrelated to the offences before the court. His devotion to his large family, his efforts to support them by working, and the support of his immediate and extended family are also mitigating.

[34] However, there are also aggravating factors. The nature of the offender’s driving put at risk the other users of a busy road and even of the sidewalk. He twice crossed over the on-coming lane of traffic, once mounting the sidewalk, presumably to scare Mr. Vrastak. On the second occasion, he crossed over, presumably to cut Mr. Vrastak off. I conclude the purpose of this intimidation was to recover money Mr. Wapoose paid Mr. Vrastak in a drug transaction. The offender targeted Mr. Vrastak. There is no evidence that the offender was affected by drugs or alcohol at the time, as were some of the offenders in the case law the Crown has cited. Nor was he fleeing police in a high speed chase.

[35] One of the aggravating factors set out in s. 718.2 of the Code is the impact of the offence on the victim. In this case, the offender’s conduct took the victim’s life.

[36] Also aggravating is the fact that, having hit Mr. Vrastak, the offender did not remain to offer or seek assistance, but simply drove off. There is no doubt that Mr. Yesno and his passenger observed the collision; video recording shows them later inspecting the vehicle on the side where the car struck the cyclist. He sought to avoid the consequences. As the Crown Attorney suggests, this was callous indifference.

Principles of Sentencing

[37] The principles of sentencing are set out in the Criminal Code and in the case law, some of which I have already acknowledged.

[38] The fundamental purpose of sentencing is set out at s. 718 of the Criminal Code which provides:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[39] As section 718.1 tells us, it is a fundamental