R. v. Scott, 2017 ONSC 753

CITATION: R. v. Scott, 2017 ONSC 753

COURT FILE NO.: CR-16-00000236-0000

DATE: 2017 January 20

IN THE SUPERIOR COURT OF JUSTICE

B E T W E E N :

R E G I N A

• AGAINST –

RONALD SCOTT

********** REASONS FOR SENTENCE

BEFORE THE HONOURABLE MADAM JUSTICE HELEN MACLEOD-BELIVEAU on the 20^TH^ day of January, 2017 sitting at PICTON, ONTARIO, Courtroom #P102

Contrary to the Criminal Code of Canada

********** A P P E A R A N C E S :

Paul Layefsky, Esq. Assistant Crown Counsel

Clyde Smith, Esq. Defence Counsel

TRANSCRIPT ORDERED: January 20, 2017

TRANSCRIPT MATERIAL PROVIDED: January 24, 2017

TRANSCRIPT COMPLETED: January 25, 2017

TRANSCRIPT RELEASED: January 26, 2017

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

Oral Reasons for Sentence – Page Three

WITNESSES: IN.CH. CR.EXAM. RE.EXAM

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E X H I B I T S

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(3:13:00 p.m.)

THE COURT: (orally) This is the sentencing matter of Ronald Scott who stands before me today having plead guilty to the charge that on the 6^th^ day of September 2015 that he, while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle and did thereby cause the death of Shawn Way, contrary to section 255(3) of the Criminal Code of Canada.

The charge of impaired driving causing death is one of the most serious offences that are provided for in the Criminal Code. The fatality of any citizen in our community due to the conduct of another that is unlawful, is something which the court must pay significant attention to in order to address the carnage on the roadways caused by impaired driving.

I say to the family of Shawn Way that there is no sentence, there is no driving prohibition, there are no orders that I can make today that will bring back your loved one. Obviously, if that was possible, it would have long been done. I appreciate you coming from great distances today and I am proceeding with the sentencing immediately after submissions to accommodate you so that you can put this behind you and move forward and keep the positive things about your loved one in mind and put this negative situation farther back in your memories as life goes on.

I also say to the family of Ronald Scott, you also have lost a family member. You have lost the person that you knew as Ronald Scott who was a contributing member of the community, a volunteer fireman and a Correctional Officer who had established and achieved great success in his life. That instant when Mr. Scott chose to first of all drink, which is not a crime but what is a crime is that he chose to drink and drive.

The task I have before me today is indeed the most difficult that a Trial Judge has in terms of the work done by the court. As Justice Sosna said in the R. v. Ramage 2010 ONCA 488, [2010] O.J. No. 2970: “My responsibility in this matter is to impose a sentence on the offender who is an exemplary citizen who has committed a serious crime with tragic consequences. It is not an easy task but the message of general deterrence must be met”.

Over my length of experience on the bench of now 28 years, I have seen a lot of carnage on the roadway and a lot of people killed. No sentencing for this type of offence gets easier. In fact; it gets more difficult. We have a loss in two families here and my approach is to focus in on what are the principles of sentencing and hope that my remarks and my sentence will reflect a very strong message of general deterrence to the community as being the principle factor in this sentencing and also denunciation.

The Supreme Court of Canada most recently in 2015 in the case of R. v. Lacasse 2015 SCC 64, [2015] S.C.J. No. 64 sent a strong message to the trial court in relation to these very types of offences. They held at paragraph 73 in relation to considering denunciation and deterrence that “while it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinary law abiding people. It is such people, more than chronic offenders who would be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence as this court quoted in R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R.61

They also refer to R. v. McVeigh, a 1985 case of the Ontario Court of Appeal. They go on to say in paragraph 74, referring to the Court of Appeal decision of the Quebec Court of Appeal: “A loss of human life caused by operation of a vehicle while impaired is a consequence that cannot be remedied, which is why it is important for the courts to convey a message of denunciation to those who put themselves in potentially dangerous situations...”

And importantly, it goes on to say: “...even if the offender does not have a criminal record and did not wish to cause the tragic accident”.

One of the overriding difficulties in these types of cases is that they are often committed by good people and they often kill equally good people in the community.

It is not commonly a situation where we have an offender before the court that has an extensive history of impaired driving; that is not the norm in these types of cases.

In the Ramage case, the Ontario Court of Appeal commented as follows: “In McVeigh the trial judge properly identified general deterrence as a predominant concern”. The McVeigh Judgment was a landmark decision in its time in 1985 and that Judgment is now many, many years old. But the message then was that drinking and driving related offences are serious crimes and must be treated as such by the courts. In the words of MacKinnon, Associate Chief Justice of the Court at the time, “Every drinking driver is a potential killer”.

There has been an evolvement of the community’s tolerance for impaired driving offences. Many, many years ago, driving while impaired was tolerated. It was certainly reflected in much reduced sentences. I agree with Mr. Layefsky’s submissions and Mr. Smith’s submissions that the sentences are now increasing for this type of offence. Why is that? Because the message is not getting through to the community that we, as a community which the sentence and this court represent, will not tolerate this type of offence and if committed, it will be treated harshly.

The Criminal Code provides some parameters for the court to consider in the principles of sentencing. Section 718 sets out the purpose and principles of sentencing. While I appreciate that Counsel are well aware of that section and the terms, perhaps the families present are not.

“The fundamental purpose...” as section 718 states, “...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;

(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 an acknowledgement of the harm done to victims and to the community.”

The section goes on to require in 718.1: “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

You have heard a lot today about what was referred to by Counsel, as mitigating and aggravating circumstances. That is because the Criminal Code again, in the same section, 718.2 requires that “A court that imposes a sentence shall also take into consideration the following principles...” And it outlines a number of detailed principles in that section; some of which are not appropriate to this case, but generally, mandates that I consider mitigating circumstances or aggravating circumstances relating to the offence or the offender.

The section says, “A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” It then goes on to outline more detail.

The position of the Defence before me today is that an appropriate sentence in all the circumstances of the offence and the offender is three to four years incarceration plus three to four years of a driving prohibition and other ancillary orders which are not contested.

The Crown’s position is that the sentence should be four to six years incarceration together with a 10 to 15 year driving prohibition.

In this case, I have a number of exhibits filed which I have carefully considered.

I have considered the pre-sentence report prepared in this matter by Mr. Howard Collins of the Kingston Probation and Parole Office. I find that the pre-sentence report in relation to Mr. Scott is a positive one and contains very little negative circumstances for the court to consider.

I have considered Mr. Scott’s driving record which, for the benefit of all present, consists of a speeding charge in 2012 (70 kilometres per hour in a 50 kilometre per hour zone); 2011, a second speeding charge (60 kilometres per hour in a 50 kilometre per hour zone); and lastly, an improper drive on divided highway lane change. I would describe that driving record as relatively insignificant but it does indicate a pattern of driving too fast.

The Victim Impact Statements that were both read in by family present and by the Crown on behalf of others who chose not to read their statements, I have carefully considered. It is important for all concerned – families of both Mr. Scott and Mr. Way, that the court provide an opportunity for the true impact of this offence to be before the court and for Mr. Scott to hear.

The victims in this case have been severely impacted. I cannot imagine the loss of a loved one in these circumstances would ever be anything but a significant impact.

Shawn Way was a good person. He had a loving family, he had children, he had a very active life and he had solid friends. He didn’t do anything wrong and yet it cost him his life.

In one of the statements filed, one of the deponents asked the question, “Why do bad things happen to good people?” I wish I had the answer but I don’t. One possible answer is that because of split second decisions that people make: one to drink and then while their ability and judgment is impaired and the ability to make logical decisions is impaired and diminished, they decided against all odds particularly in this case, with Mr. Scott’s history of being a firefighter – a first responder and a Correctional Officer – against all odds, he drives. It’s really inexplicable and I’m sure troubles everyone greatly.

There are no issues here of pre-trial custody time as a factor in reducing sentence. There are also no issues here of a house arrest provision or stringent bail conditions in order to reduce what would otherwise be an appropriate sentence.

I will now review the aggravating and mitigating factors.

I find the following to be aggravating factors: The impact on Shawn Way’s family has been staggering. They have come here today, filed very detailed and read very detailed Victim Impact Statements and are still at a loss in trying to find closure as to the reason for his death. It has been well over a year and they are still traumatized by the circumstances of this offence.

In addition, the theme that runs throughout the Victim Impact Statements is one of anger and rage; not so much for the accident and the fatality itself but because of Mr. Scott’s actions at the scene in not appearing to care at all about Mr. Way and his circumstances or condition. Rather, Mr. Scott focussed on himself throwing away his identification cards, taking license plates off his car and doing things that are so contrary to basic human decency that one really wonders what is going on. There is a theme in the Victim Impact Statements that if there had been immediate compassion and focus on what had happened and with his experience; he would have shown compassion for Shawn Way. It may have made a difference. But, that is a factor that I do consider that that did not happen and that’s very hard to get by.

There have been many examples in my experience on the bench where people driving by, coming upon an accident, will hold the hand of a victim, will stay there and console them not knowing whether they’re dead or alive, out of basic human decency. I think that lack of doing that for Shawn Way at the time of this accident is one of the very difficult hurdles the family has in getting over what happened to their loved one.

I have considered as an aggravating factor the amount of alcohol consumed and the degree of impairment. While the readings are a range of 109 to 169 millilitres of alcohol per 100 millilitres of blood, the evidence of the witnesses at the scene and the officers was that he was clearly drunk at the scene.

I consider as an aggravating factor that this collision resulted in a fatality.

Again; I consider his driving record for speeding that shows a propensity to drive perhaps faster but I don’t consider that a material consideration in the sentence because it is relatively minor in nature and the speeds that were being driven are not – let’s say – wildly excessive.

He was speeding at the time of this accident which I have considered as an aggravating factor and he was going, as provided for in the Accident Reconstruction Report, 100 kilometres per hour in an 80 kilometre per hour zone on a curve.

I have considered as well that a friend had offered him a place to stay – a place to sleep on his couch. It would only have taken a few hours for him to rest before he would consider driving and because of what Mr. Scott did for a living, that friend never thought that he would actually put his vehicle in motion and drive and was generally shocked by the result.

I have considered that Mr. Scott made the choice to drink which is not a crime but, he made the choice to drive while impaired and he put the community at risk and that materialized in this tragic fatality.

The mitigating factors I have considered are that Mr. Scott is a first time offender before the court. He has no previous criminal record.

He is relatively young at 34 years of age.

Prior to this offence, he led what Mr. Smith, his Counsel, referred to and I agree a pro-social life-style. That means he was fully integrated into the community, he was self-supporting and he led an exemplary life. He was on the Volunteer Firefighter Squad for Loyalist Township for the previous four years and he had gone through high school, Correctional College which is not an easy college to pass and graduate from – it’s a very difficult course. He graduated from there successfully and he was a Correctional Officer at Millhaven Institution; also not an easy institution to work at – a maximum security institution.

I have considered his plea of guilty. Even after a very brief preliminary hearing, I don’t find that in any way disparages the weight I would give to a plea of guilty. It has saved many witnesses and much evidence which could be extremely graphic from being called and put into public view. He has spared both the victim’s family and his own family from that rather horrendous exercise of a trial.

I have considered his very positive pre-sentence report. It’s the only way to describe it. It has nothing negative to say about Mr. Scott.

I have considered Mr. Scott’s Métis Aboriginal background. He does not wish to rely on that as a reason for the court to consider the length of his sentence but he does honour his traditions of his Aboriginal Peoples in his hunting and fishing activities and in some smudging and spiritual activities which I acknowledge as being important.

He has lost his employment. I agree with Mr. Layefsky that that issue has to be balanced against his position in the community as a Volunteer Firefighter and a Correctional Officer but in Mr. Scott’s circumstance, I consider that a significant punishment in and of itself. Mr. Scott worked very hard to obtain his position as a Correctional Officer and it is gone forever. He is not like many individuals who could do a term in penitentiary and then come out and return to that vocation. He is prohibited from engaging in that occupation because he will have a criminal record and that criminal record will affect his employment in the future. And again; I say, he is very young. He is 34. He has many years that he will have to support himself.

I have considered that he was a law abiding citizen and had done nothing to be before the courts or in trouble with the law prior to this incident.

In addition, Mr. Scott’s personal circumstances I am required to consider. Again; his age at 34. He is in a positive relationship with his girlfriend who has three children. He has worked in the community and has waited his time to come to court and has been employed while waiting to come to court which is often extremely difficult.

I have carefully considered all of the facts of this case, the submissions of Counsel and their respective positions, the relevant case law, all of the Victim Impact Statements and all of the circumstances of the offender, Mr. Scott.

I would ask you to please stand at this point Mr. Scott.

Bringing my best judgment to bear; I find in all the circumstances of this case, that the appropriate sentence on the charge of impaired driving causing death of Shawn Way is five years in penitentiary.

In addition, I sentence you to a five year driving prohibition. This driving prohibition is a lot less than as requested by the Crown and certainly a bit more than requested by the Defence because you have, what I consider, a clean driving record for all intensive purposes, the combination of the loss of your employment and the prison term that you have received, in my view mitigates against a longer driving prohibition. I am satisfied that you will appreciate when you are able to drive, that it is a privilege to have a driver’s license; it’s not a right. And, I am satisfied that in your rehabilitation, the ability to drive will be an important consideration in the future and I am not prepared to make a driving prohibition in excess of five years.

In relation to the ancillary orders; I order a weapon’s prohibition under section 109(2) (a) (ii) for 10 years as required. I also order a sample of your D.N.A. be taken pursuant to a secondary designated offence.

I should note that the driving prohibition is under section 259(2) (a.1) of the Criminal Code of Canada.

Now, before I conclude and sign off on the Indictment; Mr. Layefsky, have I left anything out?

MR. LAYEFSKY: No. The section makes it clear that the driving prohibition begins at the completion of the period of incarceration but I’m just wondering if that could be endorsed on the...

THE COURT: I can put that. To begin upon his release from custody.

MR. LAYEFSKY: Upon release; yes.

THE COURT: Is that fine?

MR. LAYEFSKY: Yes.

THE COURT: And Mr. Smith; do you have any submissions? Have I missed anything?

MR. SMITH: Not that I can think of. Thank you, Your Honour.

MR. LAYEFSKY: And then one other point I just wanted to – and I don’t think it’s an issue in this case but if I could find my Victim Witness...I don’t think a 743 order for non-communication is necessary.

THE COURT: I don’t think that’s necessary.

MR. LAYEFSKY: Alright.

THE COURT: Just have a seat. I’ll endorse the Indictment please.

I will just review the actual endorsement on the Indictment. Count 2 and 3 have been previously marked withdrawn. The sentence on Count 1 is five years in custody.

Driving prohibition pursuant to section 259(2) (a.1) for five years to begin upon his release from custody.

Section 109(2) (a) (ii) which is a weapon’s prohibition for 10 years.

A D.N.A. sample ordered to be taken as a secondary designated offence. I have signed it. I believe that completes the matter Counsel.

MR. SMITH: I think it does; thank you very much Your Honour.

*** Sentencing Concluded ***

(3:49:48 p.m.)

F O R M 2

CERTIFICATE OF TRANSCRIPT

[Evidence Act, Subsection 5(2)]

I, Jackie Denyes, certify that this document is a true and accurate transcript of the recording of R. vs. SCOTT, Ronald, in the Superior Court of Justice, held at 44 Union Street, Picton, Ontario, which has been certified in Form 1 by Shakeel Haider and dated by me this 25^th^ day of January, 2017.

Jackie Denyes, Certified Court Reporter, ACT