Court File and Parties

COURT FILE NO.: CR-16-3683 DATE: 2016-09-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen AND: David Kenneth Cassady

BEFORE: Heeney R.S.J.

COUNSEL: Adam S. J. Campbell, for the Crown Andrew J. Bradie, for the Accused

HEARD: September 26 and 27, 2016 at Windsor

Endorsement

[1] The accused has pleaded guilty to count #1 on the indictment and has, based on his plea and the admitted facts, been convicted of causing the death of Donald A. Russell by criminal negligence in the operation of a motor vehicle, contrary to s. 220 of the Criminal Code.

[2] Count #2 was withdrawn by the Crown. It alleged that the accused caused the death of the deceased while his ability to operate a motor vehicle was impaired by alcohol, contrary to s. 255(3) of the Criminal Code.

[3] The task of sentencing the accused remains.

Facts

[4] The facts are not in dispute. On July 28, 2015 the accused was driving a 2007 Infinity sedan westbound on the E.C. Row Expressway, at about 10:55 p.m. He was driving at a high rate of speed, well in excess of the 100 k.p.h. posted limit. Traffic cameras recorded him moving to the passing lane and passing two vehicles, and then returning to the curb lane, signalling both movements with a flash of his turn signals. The gap between his vehicle and the two vehicles he had just passed then increased quickly, consistent with a large difference between their respective speeds.

[5] The Infinity then rapidly closed in on a 2006 Honda motorcycle, which was being operated in a lawful manner, and at a speed consistent with surrounding traffic, in the curb lane by Donald Russell. He was on his way home from work. The weather was clear and the road was dry. Visibility was excellent, but for the fact that it was dark out.

[6] Just as both vehicles approached the Jefferson Boulevard interchange, the driver’s side front corner of the Infinity violently struck the rear of the Honda motorcycle. Both vehicles careened into the guardrail, spun around, and ended up on the grassy median between the westbound and eastbound lanes. Mr. Russell was propelled over the Infinity after his motorcycle was struck, and landed on the travelled portion of the highway, where he remained. He was grievously injured, and was pronounced dead not long after emergency personnel attended at the scene and began treatment.

[7] The accused spoke to several witnesses at the scene, and told them that he had been “texting” while driving, and did not see the motorcycle. One of those witnesses reported to police that when she spoke to the accused she could smell alcohol on his breath. When he was interviewed by the police at 11:20 p.m., he repeated his admission that he was texting while driving and did not see the motorcycle. However, the officer who interviewed him did not notice an odour of alcohol, and stated that the accused appeared steady on his feet as he paced back and forth. The officer did observe that he had bloodshot eyes. The accused admitted to having consumed two drinks 1 ½ to 2 hours before the accident.

[8] He was given a roadside screening test pursuant to a proper demand, and registered a “fail”, following which he was arrested. He was later given an Intoxilyzer test at the police station, and the results were as follows: 82 mg. of alcohol in 100 ml. of blood, at 12:37 a.m.; and 70 mg. of alcohol in 100 ml. of blood at 12:59 a.m.

[9] A report from the Centre of Forensic Sciences dated August 6, 2015 was filed on consent. It projected the blood alcohol content of the accused at approximately 10:52 p.m. to have been between 70 and 110 mg. of alcohol in 100 ml. of blood.

[10] A Collision Reconstruction Investigation Report was filed on consent. It summarized information retrieved from the Infiniti’s data recorder, called an EDR, which recorded important information about the vehicle in the 7 seconds before impact. At -7 seconds, the vehicle was travelling at 190 k.p.h. Over the following 5 seconds, the speed of the vehicle remained relatively constant, slowing slightly to 188 k.p.h. and then to 184 k.p.h., but with the throttle pedal still compressed at 35%. At -1 seconds, the vehicle slowed to 166 k.p.h., which coincided with the release of the throttle pedal, the application of brakes and an abrupt turn of the steering wheel.

[11] It is clear from this evidence that the accused was oblivious to the presence of the motorcycle immediately in front of him in the same lane until approximately 1 second before impact, when he unsuccessfully attempted to take evasive action. This is consistent with his explanation that he was texting at the time, and did not see the motorcycle in front of him. In the opinion of the accident investigator, the collision would not have happened but for the extreme speeds and overall aggressive operation of the Infinity by the accused.

[12] Those are the essential facts.

Mitigating Circumstances

[13] In passing sentence, I take the following mitigating circumstances into account.

[14] First and foremost, the accused has pleaded guilty and accepted responsibility for his actions. Indeed, he admitted his fault from the outset, at the scene of the accident, when he confessed to having been texting while driving. I accept the assertion of his counsel that his intention throughout was to plead guilty, which is reflected in the fact that he waived his right to a preliminary hearing. It was necessary to arrange for an out of town prosecutor and judge, because the accused’s father and step-mother are both officers with the Windsor Police Services, which resulted in some delay. In the result, the guilty plea was entered at the earliest possible date.

[15] His plea saves the family of Mr. Russell from enduring the agony of reliving these events through a trial, and will hopefully provide some closure to them.

[16] He has expressed deep remorse for his actions, both in court and on many occasions outside of the courtroom. He has said many times that he wishes it had been him and not Mr. Russell who had died. He tearfully apologized in court to the family and friends of Mr. Russell for the tragedy he caused, and expressed the hope that they might find some peace and healing from knowing that he takes full responsibility for his actions. I am satisfied that his remorse is heartfelt and genuine.

[17] He is a youthful offender, having been just under 23 years of age at the time of the collision. He had career aspirations to become a police officer, which he pursued throughout his post-secondary education at St. Clair College, which have now come to an end as a result of his conviction. He plans to return to college to complete his education in another field upon his release.

[18] A brief of 36 reference letters were filed on his behalf, written by members of his immediate and extended family, friends and employers. They paint a consistent picture of a young man who is kind, generous, thoughtful and hardworking. Since the incident he has become, according to his father, a different young man, “withdrawn from society, family and friends. He is ashamed, disappointed, remorseful and full of guilt for his actions that has brought discredit to him and the family name along with the grief and pain he has caused to others.”

[19] He has no prior criminal record, nor does he have any record of driving infractions.

[20] I am satisfied that he presents no risk of reoffending. He will, undoubtedly, continue to be wracked with guilt for what he has done for many years, and perhaps for life, and this alone will suffice to ensure that there is no repetition of this behavior in the future.

Aggravating Factors

[21] The court must also take into account aggravating factors. First and foremost are the circumstances of the offence. He was driving when he had consumed alcohol to the point where his blood alcohol content was either slightly below or slightly above the prescribed legal limit of 80 mg. of alcohol in 100 ml. of blood. According to the CFS report, impairment with respect to driving becomes significant at a blood alcohol content of 50 mg./100 ml. and increases from then onward.

[22] The charge of impaired operation causing death has been withdrawn, and the accused cannot be sentenced for that offence. The accused denies that his alcohol consumption caused the accident, but does admit that it was a contributing factor, and it clearly was. The tendency of alcohol consumption to reduce inhibitions is well known, which is probably why alcohol is so often associated with criminal behaviour. I have no doubt that the alcohol in his system contributed to his decision to increase his speed to the insanely dangerous level of 190 k.p.h.

[23] At that speed, the Infiniti was a virtual missile. The ability of the accused to stop or take evasive action in the event of an unexpected event would be severely compromised by such excessive speed. Yet the accused chose that moment, with the speedometer needle hovering around 190 k.p.h., and with other vehicles present on the highway, to take his eyes and his mind off the road and compose a text message. At that point, the missile was effectively out of anyone’s control.

[24] Such an act is reckless behaviour in the extreme, and displays a wanton disregard for the safety of others on the road.

[25] It is an aggravating factor that texting while driving has become a growing and pernicious problem on our roads. Despite public awareness campaigns advising of the dangers of texting while driving, despite police campaigns to crack down on the practice and despite steadily increasing fines for doing so, the practice continues apparently unabated.

[26] I agree with the Crown that the behaviour of the accused that night amounts to a “trifecta” of things you should not do while behind the wheel: drinking; excessive speed; and distracted driving.

Impact on Victim's Family

[27] The impact on the family and friends of Mr. Russell has been nothing short of devastating.

[28] Andrea Russell spoke tearfully about the loss of her husband. She is disabled and in a wheelchair, and he had been her caregiver. She had to undergo major surgery without his support. She cries constantly and can’t sleep at night, and has been diagnosed with post-traumatic stress disorder. She has had to sell their house because her husband is no longer there to take care of her. The bleakness of her life and her future were summed up when she said that she just wants to die and for the pain to stop.

[29] Mr. Russell’s two children also spoke of how their mother has literally fallen apart now that her caretaker, friend and companion of nearly 40 years is gone. Scott Russell said that he fears that she will die of a broken heart. He has also suffered his own losses, both emotionally and otherwise, as he and his wife brought his mother to live with them for a period of time after the accident, giving her their bed, and sleeping in a camper until they were able to sell her house and purchase other accommodation. He has also been the one to take her to medical appointments in London and Toronto, which had previously been done by his father, cheerfully and without complaint.

[30] Ian Russell spoke of how he is consumed with emotions of hate, anger and frustration at seeing the downward spiral of his mother. The loss has taken a severe toll on his marriage. He said “I am a different person and I hate myself for it”.

Principles of Sentencing

[31] I will now turn to the law, and address the sentence that is appropriate in the circumstances. The Crown seeks a term of imprisonment of between 4 and 6 years. The accused seeks a sentence of 2 years in penitentiary, followed by probation for 3 years, one term of which would be that he must make presentations to students at area schools to educate them about the dangers of distracted driving.

[32] The Criminal Code, in sections 718 to 718.2, sets out certain principles and objectives that must be taken into account by the court in passing sentence. They include the principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Clearly, given the devastating consequences of the actions of the accused, the offence is very grave indeed. And while the accused did not intentionally ram his vehicle into Mr. Russell’s motorcycle, his decision to drive at that high rate of speed, knowing that he had consumed a not insignificant amount of alcohol, and deliberately choosing to divert his attention to his smart phone instead of watching where he was going, equates to a high degree of responsibility.

[33] Section 718 sets out the fundamental purposes of sentencing. They include denunciation, general and specific deterrence, rehabilitation and promoting a sense of responsibility in offenders. In this case, there is no need for the sentence that I impose to address specific deterrence, rehabilitation or the promotion of a sense of responsibility in the accused because that has already been accomplished. What remains is denunciation and general deterrence.

[34] Our appellate courts have emphasized that in vehicular homicide cases like this, general deterrence is the predominant objective of sentencing. In the seminal decision of R. v. McVeigh, [1985] O.J. No. 207 (C.A.), MacKinnon A.C.J.O said this, at pp. 5-6:

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[35] That principle has been reaffirmed many times since, most notably in R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 (C.A.), where Doherty J.A. said the following, at paras. 74-5:

In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, "every drinking driver is a potential killer". Unfortunately, that potential was realized in this case.

McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases, however, McVeigh indicates that general deterrence is of primary importance. The result in McVeigh demonstrates the court's commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs. McVeigh, a 31-year old first offender, had his sentence increased from 21 months to three years.

[36] In this case, the accused is clearly an otherwise good citizen who has never been involved with the criminal law, as evidenced by the many letters of support that have been filed. However, this stellar background does not serve to earn him a lesser sentence when general deterrence is the primary consideration.

[37] The cases I have just referred to involve impaired driving causing death. As already noted, that is not the charge that the accused is being sentenced for. Nevertheless, alcohol consumption contributed to the offence, and that conduct is one element of the criminally negligent behaviour that the accused committed.

[38] In any event, I have concluded that the same principles that apply in cases of impaired driving causing death apply by analogy to cases involving texting while driving where death results. Both involve voluntary decisions by the driver that create unacceptable risks to the safety of the public. In impaired driving cases, that involves deciding to drink to excess, followed by the decision to get behind the wheel of a car. Accidents follow because the ability of the driver to safely operate the car is impaired. The vehicle is a loaded gun, waiting to go off. In texting and driving cases, the decision is made during the act of driving. It is a deliberate choice to turn the attention of the driver away from the act of driving, and divert it to the operation of a smart phone. While the driver is thus preoccupied, the vehicle is essentially driverless, with no-one in control to respond to changing road and traffic conditions. The car is a moving weapon with no-one at the helm.

[39] One could say that distracted driving is the “new” impaired driving. In both cases, general deterrence is of critical importance so as to get the message out to the public that these are choices that must not be made, and that there will be serious consequences to drivers who choose to take these risks, where other people are killed or injured as a result.

[40] It is of particular importance to get this message out to our youth, to whom a smart phone has virtually become an additional appendage. They must understand that using a smart phone while driving has potentially deadly consequences. The accused, in a Powerpoint presentation that he authored, and which he proposes to eventually deliver to students, put it this way: “Technology is like a drug. Even if it kills us we can’t stop using it.” I agree that people seem unable to resist the urge to use their hand held devices no matter what the circumstances. It will take a very powerful message from the court to overcome that mindset.

Case Law on Sentencing Ranges

[41] Sentences for impaired driving causing death have been steadily increasing since McVeigh was decided. In R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 (C.A.), MacPherson J.A., speaking for a unanimous court, said the following, at para. 15:

As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased. Last year, this court upheld sentences of four and five years for such offences in R. v. Ramage and R. v. Junkert, 2010 ONCA 549.

[42] In that case, the accused was driving with a blood alcohol concentration of twice the legal limit. He failed to stop at a stop sign and struck another vehicle, killing two young boys and severely injuring the driver. He had no prior criminal record, but did have a prior conviction for careless driving. His sentence of 8 years imprisonment was upheld on appeal.

[43] In upholding that sentence, MacPherson J.A., at paras. 19 to 22 specifically rejected the argument that the decisions of the same court in Ramage and Junkert effectively capped the sentences available for this type of offence. He also cautioned against a formulaic approach to sentence ranges in cases of this kind, since sentences are driven by an almost infinite variety of circumstances in which such an offence can be committed.

[44] Extensive casebooks were filed by both counsel on this case. Without reviewing them in detail, there were many cases which fell in the range of 4 to 6 years imprisonment proposed by the Crown. At the same time, counsel for the accused was able to point to cases where sentences of 2 to 3 years were imposed. For example, in R. v. Morin-Leblanc, 2014 ONSC 2056, the accused drove his vehicle the wrong way on a one-way street and struck and killed a pedestrian. He admitted drinking, his eyes were glassy and he had a strong odour of alcohol, but refused to take a breathalizer test. He was convicted of impaired driving causing death and criminal negligence causing death, and received a sentence of 3 years on both counts, concurrent. He was also sentenced to a consecutive period of one year for refusing to provide a breath sample.

[45] Similarly, in R. v. Nandlall, a 23 year-old offender was convicted of impaired driving causing death and criminal negligence causing death. His blood alcohol readings were 164 mg. and 160 mg. respectively, in 100 ml. of blood, and he had been driving between 100 and 120 k.p.h. when he struck and killed a pedestrian. He received a sentence of 3 years for those two offences, plus an additional six months for leaving the scene.

[46] The defence also relies on R. v. Machado, [2010] O.J. No. 6077 (S.C.J.), where a sentence of 2 years less a day was imposed for criminal negligence causing death. The driver was driving well over the speed limit, and was reaching down into the passenger’s side of the floor to search for a CD, and failed to see that a dump truck was immediately in front of him with its brake lights on. He took evasive action and missed the truck but ultimately lost control of the car and struck another vehicle, killing its two occupants.

[47] In R. v. Fretz, 2008 ONCA 507, the accused was convicted of two counts of criminal negligence causing death where he consumed alcohol and then drove his car in an erratic out of control fashion at speeds in excess of 140 k.p.h. He sought a conditional sentence, but instead received a sentence of two years less a day. His sentence appeal was dismissed.

[48] It is noteworthy that these latter three cases were decided before Ramage, Junkert and Kummer, which have arguably increased the applicable range.

[49] Counsel advise that they have been able to find only two cases involving criminal negligence causing death, where the accident was caused by distracted driving. The first is R. v. J.A.C., [2015] M.J. No. 184 from the Manitoba Queen’s Bench. That case is of limited assistance because it was decided pursuant to the Youth Criminal Justice Act.

[50] The second bears some similarity to the case at bar. In R. v. Hansell, [2015] M.J. No. 177, also from the Manitoba Queen’s Bench, the 19 year-old accused pled guilty to dangerous driving causing death and driving with blood alcohol over .08 causing death. He was travelling well below the posted speed limit, but was texting on his cell phone as he drove. He failed to notice that the cars in front of him were stopped. When he took evasive action at the last instant, he swerved into the oncoming lane and collided with an oncoming car, killing the driver.

[51] Although his blood alcohol readings were 100 and 120 mg. of alcohol in 100 ml. of blood, the trial judge found, at para. 21, that these readings were “low”, and that the accused demonstrated no outward signs of impairment. The significant causative factor was his lack of attention caused by texting on his phone.

[52] The sentence imposed was 26 months’ imprisonment on each count concurrent.

[53] It goes without saying that no two cases are alike. While the cases relied on by counsel provide some guidance as to what constitutes an appropriate sentence, ultimately the decision turns on a consideration of the objectives and principles outlined in the Criminal Code, the mitigating and aggravating factors I have discussed, the circumstances of the offender and the specific circumstances in which this offence was committed.

Conclusion on Sentence

[54] For the accused to have driven his vehicle at the extremely dangerous speed of 190 k.p.h., while being under the influence of alcohol, is egregious. For him to have then made the situation exponentially worse by intentionally diverting his attention from driving and occupying himself with his smart phone is criminal behaviour that merits significant denunciation.

[55] Furthermore, given the growing prevalence of distracted driving on our roads, it is essential that the sentence imposed in this case send a clear and powerful message that such behaviour will not be tolerated. General deterrence demands a substantial sentence.

[56] The sentence of 2 years proposed by the defence is not adequate to the task. While I applaud the plan for the accused to speak to students about the dangers of distracted driving, he does not need a probation order to do so. His counsel characterized this as something he is going to do anyway, and he can do it while he is on parole or after his sentence is fully completed.

[57] The egregious facts of this case would support a sentence of 4 years as requested by the Crown. However, in view of the young age of the accused, but more importantly in view of his guilty plea and total acceptance of responsibility from the outset, some reduction from that figure is in order.

[58] In the result, the accused is sentenced to 3 ½ years in penitentiary.

[59] The Crown also sought a driving prohibition for 10 years, but did not take serious issue with the proposal by defence counsel that a prohibition amounting to a net period of 5 years be imposed. Such a period of suspension is, in my view, appropriate. But for this one incident, the accused has never represented a danger on our roads, so a lengthy suspension is not necessary for the protection of the public. A suspension longer than 5 years will unduly hamper his ability to establish himself in a career.

[60] Taking into account the fact that the accused has already been prohibited from driving for just over one year, the effective prohibition will be 4 years. However, since that suspension will begin immediately and run while he is in custody, when he will be unable to drive in any event, it needs to be grossed up such that he will be prohibited from driving for 4 years from the date of release.

[61] I find favour with the approach taken in R. v. Prosa, 2015 ONSC 5949 at para. 41, where the period of suspension was increased by approximately one-half of the sentence imposed. Accordingly, pursuant to s. 259 of the Criminal Code, the accused is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of 69 months.

[62] The final issue is whether an order should be made requiring the accused to provide a sample of his DNA, pursuant to s. 487.051 of the Criminal Code. It is a secondary designated offence. No compelling argument has been advanced by the Crown as to why it is the best interests of the administration of justice to do so. As already noted, the accused had no criminal record before his conviction on this charge, and the prospects of him ever committing another offence are non-existent. Accordingly, no order in that regard will be made.

[63] The accused is also prohibited from possessing weapons or ammunition for 10 years, pursuant to s. 109 of the Criminal Code.

“T. A. Heeney R.S.J.” Regional Senior Justice T. A. Heeney Date: September 28, 2016