Court File and Parties

CITATION: R. v. Hazen, 2017 ONSC 5170

COURT FILE NO.: CR-16-20

DATE: 2017-08-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Brian Hazen

BEFORE: E.J. Koke

COUNSEL: W. Beatty, Counsel, for the Crown D. Lakie, Counsel, for Brian Hazen

HEARD: August 29, 2017

ENDORSEMENT – Reasons for Sentence

Overview:

[1] On October 3, 2014 Mr. Hazen was operating a motor vehicle in the south bound lanes of Hwy 69 between the French River and the Town of Parry Sound when his vehicle drifted across the centre line and collided with a vehicle driven by Patrick O’Brien. As a result of the collision Mr. O’Brien was killed and his two passengers, Jasmine Dixon and Skylar Eng-Anderson, a child, sustained serious injuries.

[2] Following a jury trial, Mr. Hazen was found guilty of one count of criminal negligence causing death, an offence under s. 220 of the Criminal Code, with respect to the death of Mr. O’Brien, and two counts of criminal negligence causing bodily injury, offences under s. 221 of the Criminal Code, with respect to the injuries caused to Ms. Dixon and Skylar Eng-Anderson. He also pleaded guilty to possession of a substance, namely methamphetamine, an offence under section 4(1) of the Controlled Drugs and Substances Act.

Circumstances of the offence

[3] Approximately 10 days before the accident Mr. Hazen had driven a rented van from his home in Walsingham, Ontario, to Blind River, a distance of approximately 700 kilometres. He was accompanied by Mr. Stephen Panasiuk. Mr. Panasiuk is trained as a welder and Mr. Hazen is trained as a millwright. Mr. Panasiuk had asked Mr. Hazen, who is retired, to assist him in a work assignment which involved testing equipment and machinery at a lime producing plant in the Town of Blind River. The work involved working at heights and using equipment and tools and the van was rented for this assignment because it was large enough to carry the required tools and equipment.

[4] The collision occurred on the return trip home from Blind River. Once again, it was agreed that Mr. Hazen would drive the van. The men left Blind River early in the morning, stopped briefly in Sudbury, where Mr. Panasiuk left the vehicle for a brief period of time to arrange to have a package shipped, and then they continued on their way south on Hwy 69 in the direction of Parry Sound. They stopped for a break at the French River Trading Post south of Sudbury and the collision occurred shortly thereafter. They had travelled approximately 250 to 300 kilometres at the time the collision occurred.

[5] Mr. Panasiuk testified that in his view Mr. Hazen had driven with due care and attention throughout, both on the drive up to Blind River and up to the time of the collision. Nothing about Mr. Hazen’s driving, or his conduct and performance on the jobsite during the previous 10 days had raised any concerns in Mr. Panasiuk’ s mind about Mr. Hazen’s ability to drive or carry out his duties on the job site.

[6] Mr. Panasiuk testified that immediately before the collision Mr. Hazen coughed and then lowered his window and spit out some phlegm. Shortly thereafter, he observed that the vehicle was drifting into the oncoming lane. When he looked over at Mr. Hazen he observed that Mr. Hazen’s hands were gripping the steering wheel, he was staring straight ahead and when he called out to Mr. Hazen he appeared to be unresponsive. He estimates that Mr. Hazen was in this position from 5 to 20 seconds. The vehicle continued to drift into the oncoming lane and the collision occurred immediately thereafter.

Additional Facts Relevant to Sentencing

[7] In Canada, the responsibility in the conduct of the criminal process is divided between judge and jury in a trial by jury. It is for the jury to say whether the offence was committed and for the judge to decide upon the penalty.

[8] This division of responsibilities presents certain challenges to the sentencing judge in a jury case. As noted by the Supreme Court of Canada in R. v Ferguson, 2008 SCC 6, [2008] S.C.J. No. 6 at par. 16 – 18:

16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518 (S.C.C.), p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (Alta. C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 (S.C.C.); R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[9] It follows that it is often necessary when sentencing an offender following a trial by jury that the sentencing judge carefully consider the evidence at trial so as to determine what facts are essential to the jury’s verdict of guilty and to determine what other facts disclosed by the evidence may be relevant in imposing a sentence. I consider such relevant evidence to include the following.

[10] Mr. Hazen admitted to the court that he regularly uses the drug methamphetamine but on a recreational basis. On the evening before the accident he had taken a couple of “puffs” of methamphetamine around 7:00 or 7:30 pm and then fell asleep around 12:00 midnight. He denied that he ingested any further methamphetamine thereafter prior to the collision.

[11] Following the collision, the investigating officers located an open container containing methamphetamine and paraphernalia wedged against the back of the front seats of the vehicle. Mr Hazen denies that he consumed any methamphetamine that morning, either before he left on the return drive or during the drive. Mr. Panasiuk also testified that he did not see Mr. Hazen consume any methamphetamine on the drive home but he could not testify as to whether Mr. Hazen took any methamphetamine during the time he was absent from the vehicle, during their stop in Sudbury.

[12] Mr. Hazen denied ever having experienced a similar episode in the past in which he had suffered from such an apparent sudden loss of consciousness or fainting.

[13] Ms. Betty Chow, a forensic scientist with the Centre for Forensic Sciences testified for the Crown. Ms. Chow specializes in the science of toxicology and pharmacology. Ms. Chow testified about the effect that the drug methamphetamine can have on the human body.

[14] Ms. Chow testified that a blood sample taken from Mr. Hazen on the day of the collision revealed a concentration of methamphetamine in the blood of .19 milligrams of methamphetamine per liter of blood.

[15] Ms. Chow testified that someone who uses methamphetamine can or may go through three physical and emotional stages. The first stage is a state of euphoria or excitement and high energy, accompanied by increased heart rate. She referred to the second stage as an “intermediate” stage, where the user experiences little or no physical and emotional symptoms from the drug. The third stage is what she referred to as the “crash” stage, where a person may feel tired and fatigued. The “crash” stage is more likely to occur after binge use of methamphetamine. She agreed that extreme fatigue can impair a person’s ability to drive.

[16] Ms. Chow stated that the concentration of methamphetamine in a sample of blood taken from a person cannot be used to determine whether or not the persons’ driving was impaired or the degree to which it may have been impaired. In other words, a test which determines a blood/methamphetamine concentration cannot be used in the same way as the test which determines a blood/alcohol concentration.

[17] Ms. Chow also testified that traces of methamphetamine stay in the blood stream for a long time, even after the user has experienced all three stages. It was not possible for her to determine when the methamphetamine was ingested by Mr. Hazen. Also, Ms. Chow was unable to state that the amount of methamphetamine found in Mr. Hazen’s blood would have impaired his ability to drive.

[18] Dr. Timothy Bard, who was qualified as a specialist in internal medicine and who was also one of Mr. Hazen’s treating doctors testified about a medical condition he referred to as syncope, which is a medical term for fainting. He testified that Mr. Hazen informed him that just prior to losing control of the Chrysler Minivan he had a coughing fit following which he wiped some phlegm off the steering wheel. This was followed by another coughing fit, after which he suffered an apparent fainting episode which caused him to lose control of the vehicle.

[19] Dr. Bard testified that Mr. Hazen informed him that following the date of the accident he had experienced a second fainting spell at his home, which caused him to fall, knocking over a table, and that he had also experienced four or five near fainting or lightheaded spells.

[20] Dr. Bard stated that in treating Mr. Hazen his priority was to find out why he was fainting, not to deal with his drug use; his impression was that the fainting was triggered by coughing.

[21] Dr. Bard testified that syncope is sometimes associated with low blood pressure. He therefore changed one of Mr. Hazen’s existing medications in an attempt to increase his blood pressure and potentially reduce his chance of experiencing a recurrent episode of syncope.

[22] Dr. Bard also confirmed that since methamphetamine is a stimulant and can raise blood pressure a little he would not expect to see syncope from a loss of blood pressure caused by methamphetamine use.

[23] Finally, Dr. Bard also confirmed that a person who suffers a fainting spell can remain seated and does not necessarily go limp and slump.

The Charges and the Decision of the Jury

[24] The indictment included a total of 7 counts. In addition to the three charges of criminal negligence of which the jury found Mr. Hazen guilty and the charge of possession of methamphetamine to which Mr. Hazen pleaded guilty, Mr. Hazen was also charged with impaired operation of a motor vehicle causing the death of Mr. O’Brien, contrary to s. 255(3) of the Criminal Code and two counts of impaired driving causing bodily harm to Ms. Dixon and Skylar Eng-Anderson, contrary to s. 255(2) of the Code.

[25] Significantly, the jury found Mr. Hazen not guilty of these three offences.

Circumstances of the offender

[26] Mr. Hazen is 59 years old. He is a retired millwright who worked his entire life for U.S. Steel. He supplements his pension income by carrying out property maintenance work and occasionally assists in carrying out inspections such as the one he was returning from in Blind River when this accident occurred. He has three adult children from a previous relationship and is presently involved in an 8 year relationship with a woman who has a 13 year old daughter to whom he is a father figure.

[27] Mr. Hazen does not have a criminal record. He does have a Highway Traffic Act record for speeding offences and I note that he received 10 convictions for speeding in the 25 years between 1985 and 2010. There is no record of convictions for speeding thereafter.

Impact of these offences on the Community

[28] A victim impact statement was filed by Jasmin Dixon and Adrian Anderson. Ms. Dixon had been in a relationship with Mr. O’Brien for approximately 35 years at the time of the accident. She sustained serious injuries in the accident. She was taken to the hospital in Sudbury and was hospitalized for many weeks. Following her release, she continued to require treatment and therapy and has been left with ongoing fatigue, pain and discomfort, as well as scarring. She has 4 sons who reside in Brampton, Barrie, Toronto and in Alberta who took time off work to travel to Sudbury and provide support to their mother during her recovery.

[29] Mr. Anderson is Ms. Dixon’s son. He wrote about the stress and anxiety which overwhelmed the family following the accident, and the care and attention which was required of the family during Ms. Dixon’s recovery. He also expressed his concerns about how both his mother and his children will miss Mr. O’Brien and the devastating impact his death has had on all of them.

[30] There is no doubt in my mind that this accident has had a severe and detrimental impact on Mr. O’Brien’s family and friends and that they have suffered and will continue to suffer significantly as a result of his loss.

[31] There was very little information presented in court about the injuries to young Skylar but it appears that her recovery was uneventful.

Positions of Crown and Defence:

[32] The Crown submits that the range of sentence appropriate for the court to consider in the circumstances of this case is 3-5 years custody with respect to the three Criminal Negligence convictions; more specifically, the Crown seeks a 4 year custodial sentence.

[33] In addition, the Crown requests ancillary orders for a 5 year driving prohibition and a DNA sample.

[34] With respect to the conviction for possession of methamphetamine, the Crown requests a fine of $650, as well as forfeiture of any drugs and drug paraphernalia seized.

[35] The defence submits that a penitentiary sentence of 2 years plus one day represents a fair and just sentence. It has no issue with the corollary orders requested by the Crown and requests only that Mr. Hazen be provided with time to pay the $650 fine and that the driving prohibition extend to no more than 3 years.

Mitigating and Aggravating Factors:

[36] With respect to mitigating factors, I note that Mr. Hazen is now 59 years old. Although he is now retired he was gainfully employed during his adult years with what is now called U.S. Steel, where he was employed as a millwright. He does not have a prior criminal record.

[37] Following the collision Mr. Hazen wrote what was described as a heartfelt letter of sorrow and apology to the victims of this accident, in which he expressed that he would have traded places with Mr. O’Brien if he could, and that he continues to be troubled by the accident on a daily basis. He expressed similar sentiments in an oral statement to the court at his sentencing hearing.

[38] The Crown submits that Mr. Hazen’s apology is negated by the fact that he did not plead guilty to the offences with which he was charged. In my view, a plea of not guilty to specified criminal offences is not necessarily inconsistent with a feeling of remorse. I accept Mr. Hazen’s apology as sincere.

[39] Mr. Hazen has three children from a prior marriage, who are now adults, and it would appear that he continues to experience a positive relationship with them. The court was advised that he has been a father figure to the daughter of his present partner, with whom he has experienced an 8 year relationship.

[40] With respect to aggravating factors, I note that in its submissions that the appropriate range of sentence in this case is 3-5 years custody, the Crown relies essentially on the following 5 cases:

a) R. v. Cassady, 2016 ONSC 6063 – OSC – 3.5 years on a plea;

b) R. v. Kumnar, 2011 ONCA 39 – OCA – 8 years following a plea;

c) R. v. Junkert, 2010 ONCA 549 – OCA – 5 years following trial;

d) R. v. Karafa, 2014 OJ No. 3013 – OSC – 5 years following trial;

e) R. v. Ramage, 2010 ONCA 488 – O.C.A. – 4 years following trial.

[41] I note that in all but the Cassady decision the convictions were in relation to charges where impairment is a required element of the offence. The fact of impairment was considered to be a significant aggravating factor in those cases in that it was considered to be a factor related to causation. In Cassady, the Crown withdrew the charge of causing death while the accused’s ability was impaired by alcohol and the accused pleaded guilty to causing death by criminal negligence. However, in Cassady, there was evidence of alcohol consumption, in the range of 70 and 110 mg of alcohol in 100 ml. of blood. The court noted that 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 outward. The accused also admitted that his alcohol consumption was a contributing factor and the court found that it clearly was.

[42] In my view, the cases put forward by the Crown can be distinguished from the circumstances in Mr. Hazen’s case. The jury was instructed in this case that if they found that Mr. Hazen’s ability to drive was impaired as a result of drugs they were to find him guilty of the three offences which included impairment as an essential element. After deliberating, the jury returned not guilty verdicts with respect to these three counts. In the circumstances it is incumbent on me to base my sentence on a finding that the jury did not find that Mr. Hazen’s ability to drive was impaired by drugs, and accordingly that such an impairment was not an aggravating factor.

[43] In my view, it remains open for me to find that the decision by Mr. Hazen to operate a vehicle, knowing that there was methamphetamine in his system, was irresponsible and unwise, and points to a carelessness on Mr. Hazen’s part, given the various stages which a user of methamphetamine can go through after having consumed this drug. As such, it remains an aggravating factor, but should not be given the same weight it would be given if the jury had found that Mr. Hazen’s ability to operate a vehicle was impaired as a result of using this drug, and this impairment contributed to or caused the collision.

[44] The finding by the jury that Mr. Hazen was criminally negligent also precludes me from finding that Mr. Hazen’s apparent loss of consciousness was caused by an episode of syncope, or fainting. A finding of syncope would be inconsistent with a finding of criminal negligence.

[45] Finally, I find as another aggravating factor the extreme devastation caused to the victims and their families, resulting from this collision.

[46] An essential element in an offence of criminal negligence is that an accused’s actions demonstrated a wanton and careless disregard for the lives and safety of others.

[47] The jury must have concluded that the manner in which Mr. Hazen drove the van showed such a wanton or reckless disregard for the lives or safety of others.

[48] I can only conclude that the jury did not accept the evidence of Mr. Panasiuk that Mr. Hazen drove in a careful and prudent manner throughout, and that they rejected the submission by the defence that the accident was caused by an episode of syncope.

[49] The members of the jury did not have to agree on the reasons why they found that Mr. Hazen’s driving demonstrated a wanton and careless disregard for the lives and safety of others. Some may have concluded that he speeding, or texting, or simply not paying attention.

Principles of Sentencing:

[50] It is agreed that the principles of denunciation and general deterrence are the governing principles which should be considered in a case such as this.

Decision

[51] The defence submits that the circumstances of this case closely align with the facts in the Ontario Court of Appeal decision in R. v. Robert Laine, 2015, ONCA 519.

[52] In Laine, the 21 year old accused was convicted of two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm following a trial by judge alone. The court of appeal reduced his sentence from four years imprisonment concurrent, on each of the three criminal negligence convictions, to two years less a day imprisonment.

[53] In its decision, the Court of Appeal noted that the appellant was young, that no drugs or alcohol were involved, and that he had taken steps to rehabilitate himself and received support from his family.

[54] The Crown seeks to distinguish the Laine case from the case before the court by pointing out that Mr. Laine was very young and Mr. Hazen was an experienced driver in his mid-50’s when this collision occurred. The defence agrees that this is a distinguishing feature but argues that Mr. Hazen should also be credited with the fact that he lived his life as a solid and productive citizen up until the time of the accident.

[55] The defence also points out that there was evidence of extreme carelessness in the manner in which Mr. Laine operated his vehicle. The trial judge found that Mr. Laine was driving his vehicle over a series of hills and curves on a roadway with a speed limit of 80 kilometres per hour, and that he accelerated his vehicle so that his passengers could get “the rush feeling” when they went over the hills, like a roller coaster. Just prior to losing control of his vehicle, Mr. Laine nearly had an accident on a curve in the road, having to swerve off the road to avoid an oncoming vehicle. He then accelerated again, reaching a speed of approximately 140 kilometres per hour, before losing control again and hitting a hydro pole.

[56] Also, while he was driving, one of his passengers was videotaping the ride. This was clearly a case of joy riding.

[57] The defence points out that although the jury must have concluded that Mr. Hazen’s driving demonstrated a wanton and careless disregard for the lives and safety of others, there is no evidence of the kind of driving in which Mr. Laine engaged.

[58] In my view, given the finding by the jury that Mr. Hazen’s ability to drive was not impaired by drugs, together with his long history of solid employment and the absence of a criminal record, a fit and just sentence in this case is a custodial sentence of 30 months on each of the three counts, to be served concurrently.

[59] In addition to the custodial term, I am ordering that Mr. Hazen pay the sum of $650 in relation to his conviction for possession of methamphetamine. He has 12 months from the time of his release to pay this sum.

Ancillary Orders:

[60] Ancillary orders include the following:

a) Submission by Mr. Hazen to a DNA test to be stored in the DNA data bank

b) Forfeiture of any drugs or drug paraphernalia seized;

c) A driving prohibition for three years, to commence as of today;

d) A victim surcharge of $795, payable within one year of his release.

E.J. Koke J.

Released: August 29, 2017