CITATION: R. v. McWatters, 2016 ONSC 6944
COURT FILE NO.: CRIMJ (P) 326/14
DATE: 2016 11 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Sean Doyle, for the Crown
- and -
RONALD MCWATTERS
Michael Morse, for the Defence
Defendant
HEARD: September 22, 1016
REASONS FOR SENTENCE
Bielby J.
Overview
[1] On March 2, 2016, I released my judgment finding the offender, Ronald McWatters, guilty of:
(a) One count of criminal negligence causing the death of George Knowles, contrary to section 220(b) of the Criminal Code.
(b) One count of failing to remain at the scene of an accident, contrary to section 252(1.2) of the Code.
(c) One count of possession of a stolen motor vehicle, contrary to section 354(1)(a) of the Code.
(d) One count of possession of 18 stolen beer kegs, contrary to section 354(1) of the Code.
(e) Eleven counts of operating a motor vehicle while prohibited to do so, contrary to section 259(4) of the Code.
The Facts
[2] On September 16, 2013, the offender was operating a stolen pickup truck, carrying stolen beer kegs, and drove through an intersection, against a red light. In doing so he struck the driver’s door of a vehicle proceeding legally through the intersection, resulting in the death of the driver of the other vehicle, Stanley Knowles.
Circumstances of the Offence
[3] On the day in question, shortly after 11:00 am, the police observed a black Ford F150 pickup truck in the area of the Bramalea City Centre. The truck turned out to be stolen and was carrying 18 stolen beer kegs.
[4] The offender was the operator of the truck and its sole occupant.
[5] The offender then left the vicinity of the mall at high speeds in an effort to avoid and evade the police. He travelled at a high rate of speed along Clark Boulevard in Brampton and proceeded through one intersection against a red light, prior to approaching the intersection of Bramalea Road, where the collision occurred.
[6] When the offender reached the intersection of Clark Boulevard and Bramalea Road, he entered the intersection, against a red traffic signal, at a speed of at least 100 kph. He made no effort to slow down or brake.
[7] The Mr. Knowles had worked that morning and was on his lunch hour and travelling home to pick up his wife. He was operating his Ford Freestar vehicle northbound on Bramalea Road and entered the intersection on a green light.
[8] The offender’s vehicle struck the victim’s vehicle at the driver’s door, ultimately resulting in the death of Mr. Knowles. The offender made no effort to avoid the collision.
[9] Immediately after the impact the offender got out of the truck and moved away from it in an effort to hide in amongst a group of people who were gathering around the accident site. When he realized an officer had identified him and was approaching, he turned and ran in an attempt to avoid arrest. His effort was not successful.
[10] At the time of the accident the offender was the subject of 11 driving prohibition orders.
Circumstances of the Offender
[11] The offender testified at the sentencing hearing. He testified that his mother was aboriginal and his father, Irish. He was raised in Toronto but during the summers would visit the Bear Island Reserve with his mother. This continued until he was 12 or 13 years of age after which he had no further contact with his mother’s family.
[12] Throughout his childhood, the offender lived in the same house with his parents and siblings. His father died when he was 15 years old. There were no issues in the home in regards to drugs or alcohol. The offender testified that he had a good home life.
[13] The offender described his father as a workaholic and noted that his mother worked part-time, at one time employed by Peoples Jewellers.
[14] The offender testified that he was raised as a non-native but in his teens reconnected with his aboriginal roots. He participated in smudges as an adult. He continued participating in smudges for the first year and a half he was in pre-trial custody until the opportunity to do so was no longer offered at the Maplehurst Correctional Center.
[15] The offender has three children with whom he last had contact seven years ago. His siblings avoid any contact with the offender because of his criminal activities.
[16] The offender testified that while he used marijuana and may have tried harder drugs back in the 1970’s, there were never any substance abuse issues. He testified that he is now a diabetic he has not consumed alcohol for the past 17 years.
[17] The offender testified that he has tried to take advantage of programs offered at the jail but few are offered or available.
[18] The offender has an extensive criminal record which started when he was 17 years of age. When asked by the Crown attorney how this change in lifestyle came about the offender testified that, “It just happened.”
[19] The offender has been convicted of approximately 62 criminal offences, which include 7 convictions for dangerous driving, 11 convictions for possession of stolen property, 10 convictions for theft and 11 convictions for driving while disqualified.
[20] The offender’s record also includes convictions for driving with more than 80 mgs of alcohol in his blood as well as convictions for failing to remain at the scene of an accident.
[21] Prior to the offences before this court, the offender was last convicted in January, 2010.
Impact on the Victim and/or Community
[22] Victims’ statements were provided and/or read into court by Stanley Knowles’ wife, son, his son’s wife and his daughter.
[23] The victim’s son Stephen was married 25 days after his father died. In fact the collision which resulted in his father’s death occurred on the Monday following Stephen’s weekend bachelor party at a cottage which was attended by his father. When Stephen arrived at the hospital and was told of his father’s death, in his words, “His world collapsed.”
[24] In his statement Stephen describes the wedding without his father, the purchase of his first house without his father’s advice and the birth of his daughter who will never know her grandfather.
[25] Stephen notes that at the end of this (criminal justice) process he will be likely serving a sentence far longer (than imposed by the court).
[26] At the time of Stanley’s death, Stephen was to marry Lisa, who in her statement described how their lives have been changed forever. She spoke of her now husband’s parents who, a month earlier, had celebrated their 40th wedding anniversary. She described the kind of man Stanley was and the pain she felt because her daughter would never know her grandfather.
[27] Kelly Knowles is the daughter of the deceased and described the months leading up to the death of her father, as the family celebrated her parents’ 40th anniversary and prepared for her brother’s wedding. Kelly’s statement describes the impact her father’s death on her physical and mental health and how it has changed the kind of person she was. She finds very little joy in life.
[28] Kelly believes there will be no closure about her father’s death and that his death has no explanation or reason.
[29] Ann Knowles, the wife of Stanley Knowles, describes in her statement how her husband was to pick her up at 11:15 am. Ann does not drive and relied on her husband to take her where she needed to go. She describes her husband as her true life partner, soul mate and very best friend. Stanley was only 61 years old when he died.
[30] As a result of the loss of her husband, Ann was required to quit work. Some days she does not get out of bed and often requires medication to get her through the night.
[31] The last sentence of Ann’s statement reads, “Moving forward I have no plans. I have no interest in anything about life.”
Legal Parameters
[32] The most serious of the charges, criminal negligence causing death under section 220(b) of the Code, provides for a maximum sentence of life imprisonment.
[33] The maximum punishment for failing to remain at the scene of the accident under section 252(1.3) of the Code carries the same maximum sentence.
[34] The maximum sentences for the remaining convictions, range from two years to ten years imprisonment.
Positions of Crown and Defence
Crown Submissions
[35] The Crown is seeking a global sentence of 16-18 years imprisonment less the agreed credits for pre-trial custody.
[36] It is agreed by the court and counsel that the offender shall receive a credit of 1.35 days for every day in pre-trial custody.
[37] It is also agreed that the offender is to receive an additional 120 days credit because of the periods of lockdown to which he was subjected while in custody.
[38] The Crown also seeks a lifetime driving prohibition, a no contact order in relation to members of the Knowles family, delayed eligibility for parole to one-half of the sentence served, a DNA order, and a lifetime weapons prohibition order.
[39] In regards to the principles of sentencing the Crown submits that the paramount considerations are deterrence, both specific and general, and denunciation. Given the offender’s criminal record, it is submitted that the principle of rehabilitation is a non-factor.
[40] The Crown submits that society must be protected from the offender.
[41] The Crown acknowledges that a Gladue Analysis is required but argues that the offender’s heritage had a minimal role in regard to the offending conduct. It is conceded however that the offender’s aboriginal ancestry may require some degree of mitigation.
[42] The Crown submits that the offender’s moral blameworthiness is at the extreme or high end given the offender’s conduct and his callous disregard for the safety of others. As such, it is to be considered an aggravating factor. In addition, the offender fled the scene to avoid detention and tried to take advantage of the chaos surrounding the collision to avoid capture.
[43] Finally, the Crown notes there has been no expression of remorse.
Defence Submissions
[44] Counsel for the offender submits that the global sentence ought to be between eight and ten years and that the authorities provided by him support this submission.
[45] It is submitted that his client was not impaired or under the influence of any substance at the time of the collision, and that had he been so impaired he would be subject to a higher degree of moral culpability.
[46] In regards to credits for time served counsel submits that the appropriate credit is 4.68 years. This calculation was not challenged by the Crown attorney.
[47] Defence counsel submits that in accordance with section 718.2 any sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
Case Law
[48] Both counsel provided me with authorities.
[49] R. v. Layugan [2016] O.J. No. 1725, is a decision of J.A. Thorburn J., of the Ontario Superior Court of Justice. The offender was convicted of failing to stop at the scene of an accident, knowing someone had suffered bodily harm, with the intention of escaping liability, and criminal negligence causing death. A conviction for manslaughter was stayed. The offender had no criminal record and the motor vehicle accident was not the fault of the offender, facts that distinguish this authority from the matter under consideration.
[50] The Layugan case is helpful in that it includes an Appendix A, which, in chart form, references a number of cases of criminal negligence causing death and the sentences imposed. The cases suggest a range of 18 months to six years.
[51] R. v. Smith 2012 ONSC 3089, [2012] O. J. No. 2315, is a decision of J. E. Kelly J. of the Ontario Superior Court of Justice. The facts giving rise to the charges are similar to the facts before me.
[52] Mr. Smith stole a van in the midst of conducting a break and enter. The van was pursued by the police. Smith drove at a high rate of speed and ran one red light and clipped another car. He then ran a red light at a second intersection and struck another vehicle. The driver of this other vehicle died as a result of the collision. Five other persons were injured.
[53] Smith had a criminal record made up of 168 previous convictions, including criminal negligence causing death, dangerous driving causing death and multiple convictions for criminal negligence causing bodily harm. At the time of the collision Smith was subject to multiple driving prohibition orders.
[54] Kelly J. sentenced Smith to life imprisonment in regards to criminal negligence causing death and stayed sentences on the other charges. She made note of the sentencing principles of denunciation, deterrence and the protection of the public.
[55] The sentence imposed was appealed unsuccessfully and leave to appeal to the Supreme Court of Canada was denied.
[56] The opening sentence of Keely J.’s, Reasons for Sentence, includes the following, “It would be terribly wrong to underestimate and difficult to exaggerate the magnitude of the tragedy caused by Mr. Robert Clifford Smith’s criminal conduct…”
[57] From paragraph 2, I quote,
“It is next to impossible for me to find anything redeeming about Mr. Smith. He has an extensive criminal record that covers 24 years. It involves 32 sentencing hearings in respect of 168 convictions. He is a recalcitrant recidivist. He has never been deterred from committing criminal offences. He has little or no regard for the laws of this country or anything other than his own selfish motivations.”
[58] In paragraph 3, Kelly J. concluded that the only sentence which would protect the public is one of life imprisonment, the sentence sought by the Crown.
[59] From paragraph 61 I quote,
“It appears that no court order or stint in jail can protect society from Mr. Smith’s criminal conduct. It is my view the public can only be protected if Mr. Smith is in custody. His prior submissions at seeking rehabilitation support my findings: such submissions are hollow.”
[60] At paragraph 132, Kelly J. notes that had she not imposed a life sentence she would have recommended Smith serve one-half of his sentence before being eligible for parole, pursuant to section 746.3 of the Criminal Code, based on the paramount principles of deterrence and denunciation.
[61] Kelly J. noted that a fundamental principle in sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (para. 134). She stated the offences are grave and the offender was fully responsible for the outcome of his driving.
[62] At paragraph 135 Kelly J. wrote,
“It is my view that in order to properly give effect to the significant aggravating factors present in this case and in order to properly give effect to the principles of general deterrence and denunciation, a sentence of life in prison is appropriate. Such a sentence is imposed to denounce Mr. Smith’s behaviour and to deter others. Most importantly, it is designed to protect the public.”
[63] All of these opinions, as expressed by Kelly J., are equally applicable to the matter before me. The only distinguishing features are the length of criminal records, Mr. McWatters aboriginal status and the fact that there were two collisions in the Smith case.
[64] I disagree with defence counsel that another distinguishing factor is that the matter before me did not involve a high speed police chase. Clearly Mr. McWatters was driving in a manner to avoid the police.
[65] R. v. Thorton [2007] O.J. No. 1865 is a decision of the Ontario Court of Appeal and in regards to the need to protect society, from paragraph 34 I quote,
“The global four-year sentence was, in our view, entirely fit. The appellant’s history of alcohol addiction and his criminal record for drinking and driving offences, amassed over most of his adult life, are cause for grave concern. Untreated, he remains a serious risk to society and, as the sentencing judge properly observed, it was necessary in the circumstances to separate him from society. Hopefully, the appellant will learn from this experience and take the steps needed to truly overcome his addiction. That is up to him. In the meantime, society deserves to be protected from the grave danger he presents.”
[66] R. v. Precup [2013] O.J. No. 2213, is authority for the proposition that when sentencing an offender for a driving offence as well as failing to remain at the scene of the collision, the sentences must be consecutive to one another as opposed to concurrent sentences (para. 38).
[67] In R. v. Shore [1999] O.J. No. 1545, Baig J. of the Ontario Court of Justice, sentenced the offender to nine years imprisonment for criminal negligence causing death, four years imprisonment to be served concurrently for criminal negligence causing bodily harm, 150 days to be served consecutively for failing to stop for police, and 60 days to be served concurrently for possession of a stolen vehicle. The facts involved a high speed police chase which resulted in the offender crossing into oncoming traffic and colliding with another vehicle resulting in the death of the other driver.
[68] In the Shore case, the offender expressed remorse and entered a plea of guilty. Otherwise I suspect the sentence would have been longer.
[69] R. v. Q.B. 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 is a decision of the Ontario Court of Appeal. At paragraphs 38 and 39 the court discusses the “jump principle”, deciding it had no application in the case before it. The Court of Appeal states,
“The principle cautions a court against imposing a dramatically more sever sentence than the sentences imposes upon the offender for similar offences in the recent past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.”
[70] The cases cited above are relied upon by the Crown attorney.
[71] The following authorities are relied upon by counsel for Mr. McWatters.
[72] R. v. Muzzo 2016 ONSC 2068, [2016] O.J. No. 1506, is a decision of M.K. Fuerst J. of the Ontario Superior Court of Justice. Mr. Muzzo pleaded guilty to two counts of impaired driving causing death and two counts of impaired driving causing bodily harm. The offender was sentenced to 10 years less credit for time served.
[73] Counsel for Mr. McWatters submits that the damaged caused by Mr. Muzzo was far greater than that caused by his client and that Mr. Muzzo had greater moral blameworthiness. Counsel suggests that in balancing the circumstances of his client and that of Mr. Muzzo makes them similar.
[74] However, in my opinion, Mr. McWatters case can be distinguished because Mr. Muzzo had no criminal record and was found to be a low risk to re-offend. Counsel for the offender submits that Mr. Muzzo had a greater moral blameworthiness because he was impaired. While I agree that the circumstances of the Muzzo case involve driving while impaired, Mr. McWatters circumstances give rise to an extreme moral blameworthiness. Mr. McWatters made a clear-headed decision to drive in the manner in which he did.
[75] In R. v. Hekmati [2011] O. J. No. 3703, convictions for impaired driving causing bodily harm and criminal negligence causing bodily harm resulted in a five years sentence less time served. In this case the offender had a record of three convictions for impaired driving and/or blowing over the legal limit which, while serious, pales in comparison to the record of Mr. McWatters.
[76] In R. v. Spears 2010 ONSC 5710, [2010] O.J. No. 4400, the offender was convicted of criminal negligence causing death and criminal negligence causing bodily harm and had a record of two previous impaired driving offences and 22 traffic convictions, again, a record, that while serious, falls well short in comparison to Mr. McWatters’ record.
[77] A sentence of four years was imposed by the court finding that the conduct was very serious and was a deliberate endangerment to the public (para. 52).
[78] In R. v. Jurevicius [2006] O. J. No. 1206 the offender was convicted of criminal negligence causing death. The offender was a cocaine and alcohol addict and there was evidence of cocaine use prior to the accident. The offender had a criminal record including convictions for impaired driving. The offender was sentenced to 36 months incarceration which gave credit for time spent in pre-trial custody. It is also noted the offender pleaded guilty and was noted as having an interest in rehabilitation.
[79] In R. v. Holm [2003] O.J. No. 5385, the offender pleaded guilty to criminal negligence causing death, three counts of impaired driving causing bodily harm, failing to stop at the scene of an accident, two counts of failing to comply with a breath demand, breach of probation, and theft over $5,000. The offender was sentenced to six years in jail less credit for time in pre-trial custody. The sentencing judge determined that the protection of society was paramount.
[80] In R. v. Boukchev 2003 CanLII 26654 (ON CA), [2003] O.J. No. 3944, the Ontario Court of Appeal had to consider a sentence appeal by the Crown. The offender was convicted of dangerous driving causing death and leaving the scene of the accident. The offender was 52 years old and had a lengthy criminal record for driving offences, including careless driving and seven convictions for driving while disqualified.
[81] The Court of Appeal allowed the appeal and increased the sentence from 21 months to four years and three months along with a lifetime driving ban.
Mitigating and Aggravating Factors
[82] In regards to aggravating factors, I find that the circumstances resulting in the charges are themselves an aggravating factor.
[83] I find that the offender’s criminal record is an aggravating factor. The offender is a habitual criminal and that is unlikely to change. It reflects a complete disregard to the laws of the land and the road. While not to the level of Mr. Smith (R. v. Smith), a record of approximately 62 convictions cannot be overstated.
[84] The lack of remorse is an aggravating factor.
[85] In regards to mitigating factors, the only factor I will consider as mitigating, is the offender’s aboriginal heritage, for the following reasons.
Gladue Analysis
[86] Section 718.2(e) of the Criminal Code of Canada in part states,
“The court that imposes a sentence shall take into consideration the following principles…
(e) all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offender, with particular attention to the circumstances of aboriginal offenders.”
[87] Defence counsel submits that his client’s aboriginal status reduces the offender’s moral blameworthiness.
[88] The Crown did not challenge the offender’s aboriginal status.
[89] R. v. Gladue [1999] 1 S.C.R. 433, is the seminal case in regards to the approach in sentencing an aboriginal offender. The Supreme Court of Canada dictated a remedial approach, and requires a court to consider possible options other than incarceration.
[90] In R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada reaffirmed the approach to be taken. As noted in the headnote, a judge must consider,
(a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
[91] Ipeelee stands for the principle that failing to take an accused’s aboriginal status into account would violate the fundamental principle of sentencing that requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender, and from paragraph 37 and 38, I quote,
“The fundamental principle of sentencing (ie, proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensure public confidence in the justice system.., Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of another.
Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender.”
[92] At paragraph 59 the court stated, in reference to the Gladue judgment,
“The Court held, therefore that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) direct sentencing judges to pay particular attention to circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report. (Gladue, at paras. 83-84).”
[93] As stated at paragraph 87,
“The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving the Aboriginal offender runs afoul of this statutory obligation.”
[94] An offender need not establish a causal link between background factors and the commission of the current offence before being entitled to have the Gladue principles considered by the sentencing judge (para. 81).
[95] After the release of my findings of guilt, a Gladue Report was ordered but none could be provided. By letter dated June 9, 2016, the Peel Aboriginal Network advised that no aboriginal lineage or ancestry could be confirmed in regards to the offender. The offender’s unique life circumstances could not be assessed within the confines of a Gladue Report.
[96] In the matter before me, given the circumstances resulting in the convictions and the offender’s criminal record, a remedial approach, that is a sentence other than incarceration, was not sought or considered. In this matter, the sentencing principle of rehabilitation is a non-factor. There are no other sentencing options other than a lengthy period of incarceration. That does not mean however that the offender’s aboriginal status is not to be taken into account and considered.
[97] On the evidence before me, it cannot be said that the offender’s aboriginal status, in any direct way, gave rise to unique life circumstances or experiences that impacted on his personal involvement with the criminal justice system. There is no direct connection, as conceded by defense counsel, which would result in a lower moral blameworthiness.
[98] The offender was raised as a non-native in a home with two parents who provided a stable home life. There is no history of alcohol or substance abuse. The offender testified that he had heard some reference to residential schools from his mother and/or her family, no details were provided.
[99] However, an indirect connection must be considered. Are there systemic reasons why the offender began and continued a life of crime? When asked by the Crown if his aboriginal heritage had any impact, the offender stated that he thinks it had a major impact, as it was, “In the blood”. The offender testified that he started re-connecting with his aboriginal roots as a teenager. However, as noted previously, the offender, when asked what caused him, at 17 years of age, to begin a life of crime, answered, “It just happened”.
[100] It is almost impossible to determine what role any systemic factors related to an aboriginal background had in causing the offender to commit the crimes before the court. Such systemic factors would relate to the historic and continued plight of Canada’s aboriginal community including the impact of residential schools, the lower educational levels, the higher rates on unemployment and the higher rates of substance abuse and suicide.
[101] There is no doubt that such systemic factors exist and have had and continue to have a severe impact on our aboriginal community and while not raised in an aboriginal community, the offender knew of his native heritage from a very young age and while a child, experienced this heritage on a yearly basis.
[102] I will consider the offender’s aboriginal background as a mitigating factor, a factor to be taken into account in determining the period of incarceration.
Principles of Sentencing
[103] Further to section 718,
“The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by the 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 or to the community.
[104] I agree with the Crown that deterrence and denunciation are important principles of sentencing applicable in this matter. However, as least as important is the principle of separating Mr. McWatters from society.
[105] As noted, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (sec. 718.1).
Reasons and Analysis
[106] In regards to sanctions, the crimes before the court are grave and serious. A long period of incarceration is required and this fact is not disputed by defence counsel. The issue is the length of sentence. In this regard and as noted, offender’s aboriginal heritage will be treated as a mitigating factor.
[107] The offender’s criminal record is extensive, stretching over more than 40 years. Nothing has deterred him from continuing a life of crime.
[108] The offender’s actions on September 16, 2013, represent a wanton and disregard for others, putting his own desire to evade capture over the safety of others using the roadway.
[109] The offender’s career choice is that of a criminal. At the completion of the sentencing hearing I asked the offender if he had anything he wished to say to the court. The offender declined to say anything.
[110] There is no evidence of any remorse.
[111] I can only conclude that when the offender is released from jail he will return to a life of crime and will likely have little regard to any order prohibiting him from driving.
[112] Given the facts of this case, the previous dangerous driving convictions and the driving prohibitions, as well as the other convictions, one conclusion is inescapable; the offender has and will continue to put the risk of anyone else’s safety at risk to protect himself and to avoid arrest. The community demands and is entitled to protection.
[113] The sentence must denounce the circumstances of these offences and of such a length to deter others. No sentence imposed to date has deterred the offender from criminal activity.
[114] This tragedy occurred in the middle of the day at a major intersection in Brampton. People were travelling on the roadways, getting on with their day. As a community, we require rules in order to regulate conduct and action, to allow the community and all its inhabitants to live their lives in relative safety. The Criminal Code and the rules of the road are examples of the type of limits required.
[115] While we are free to live our lives we are not free to do so in a manner that it puts others at risk. We are required to take into account the needs and safety of others.
[116] The offender however chooses to live outside of these types of limitations. Sadly after looking at his criminal record, it can be argued that the death of another through the actions of the offender, while perhaps not strictly intentional, was inevitable.
[117] The community therefore demands and is entitled to protection from the offender, long term protection.
[118] The offender made a conscious decision to act in a manner which resulted in the death of Mr. Knowles. He has no excuse and the degree of moral blameworthiness is extreme.
[119] Any sentence I will impose will pale in comparison to the sentence that was imposed on the Knowles’ family. They have lost a husband, father and father-in-law, for life. Their life memories and experiences are and will be altered for life, especially in regards to the wedding of Mr. Knowles’ son.
[120] The sentence must be proportionate to the gravity of the offence, and the degree of responsibility of the offender. The gravity of the offences before me cannot be overstated. Mr. McWatters is solely responsible for the death of Mr. Knowles.
[121] I will impose a global sentence of 15 years’ incarceration, less accrued credit. Such a sentence while slightly below the range suggested by the Crown takes into account the aggravating factors described previously and mitigating factor of the offender’s aboriginal status. Anything less would bring the administration of justice into disrepute.
[122] A credit of 4.68 years will be applied.
Ruling
[123] On the conviction for criminal negligent driving causing death, I sentence Mr. McWatters to a further nine years imprisonment.
[124] I recommend that he not be eligible for parole until he has served one-half of his sentence.
[125] Mr. McWatters will be subject to a lifetime ban on driving.
[126] Mr. McWatters will be required to provide a DNA sample.
[127] On the count of failing to remain at the scene of the collision Mr. McWatters is sentenced to 15 months in jail, consecutive to the sentence for criminal negligence.
[128] On the 2 counts of possession of stolen property Mr. McWatters is sentenced to three years on both, to be served concurrently with the sentence for criminal negligence.
[129] On the 11 counts of driving while prohibited Mr. McWatters is sentenced to six months on each, to be served concurrently with the sentence for criminal negligence.
Bielby J.
Released: November 10, 2016
CITATION: R. v. McWatters, 2016 ONSC 6944
COURT FILE NO.: CRIMJ (P) 326/14
DATE: 2016 11 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
RONALD MCWATTERS
Defendant
REASONS FOR SENTENCING
Bielby J.
Released: November 10, 2016