2017 ONSC 7786
COURT FILE NO. CR-16-0135
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ANDREW FALLOWS
R E A S O N S F O R S E N T E N C I N G
BEFORE THE HONOURABLE JUSTICE McCARTHY
on NOVEMBER 17, 2017 at BARRIE, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 539 OF THE CRIMINAL CODE OF CANADA
Appearances:
L. Saunders Counsel for the Provincial Crown
A. Fallows Representing himself
superior COURT OF JUSTICE
T A B L E O F C O N T E N T S
| WITNESSES | IN-CH | CR-EX | RE-EX |
|---|---|---|---|
| No Witness Examinations |
Transcript Ordered....................... November 2017
Transcript Completed..................... February 2018
Ordering Party Notified.................. February 27, 2018
FRIDAY, NOVEMBER 17, 2017
R E A S O N S F O R S E N T E N C E
McCARTHY, J.(Orally):
THE VERDICT
Andrew Fallows is before me today for sentencing. On August 1, 2017 a jury found Mr. Fallows guilty on all four counts on the indictment before the court: impaired operation of a motor vehicle causing death; over 80 operation of a motor vehicle causing death; dangerous operation of a motor vehicle causing death; and criminal negligence in the operation of a motor vehicle causing death. The victim of the crimes was Shania Slater ("the deceased").
The sentencing hearing took place on November the 3rd, 2017. On the previous date scheduled for the hearing (October 10th, 2017) Mr. Fallows advised the court that he had dismissed his counsel. The court granted his adjournment request. At the re-scheduled sentencing hearing on November 3rd Mr. Fallows was afforded the opportunity to both respond to the Crown's submissions and address the court as was his right under the Criminal Code. The court received into evidence a presentence report under s. 721(1) of the Criminal Code and several victim impact statements pursuant to s. 722 of the Criminal Code.
INFORMATION
The facts, expressed or implied, that were essential to the jury's verdict at trail were as follows: On or about October the 4, 2014 following an evening of drinking with the deceased, Tom Newman and Nicole Thibault at a downtown Barrie bar and at the Thibault residence in Barrie, Andrew Fallows operated his Dodge Ram pick-up truck with the deceased in the passenger seat into a concrete median on Highway 11, after attempting to enter the highway from Line 1 of Oro. The violent single vehicle collision which ensued caused massive injuries to the deceased. The deceased was rushed to the Royal Victoria Hospital and then on to St. Michael's hospital in Toronto where she succumbed to her injuries several days following.
Collision reconstruction and mechanical inspection of the pick-up truck revealed that it did not suffer from any mechanical defects, that there were only two occupants of the truck at the time of the collision, that the seatbelts were not functioning and that accordingly both occupants were unrestrained at the time of the collision. The collision reconstruction also proved that the cause of the collision was the operator of the truck simply failing to heed the requirement to turn right onto Highway 11 when travelling west on Line 1 of Oro causing the pick-up truck to carry on straight until it collided with the centre median of Highway 11.
Forensic analysis and testing of DNA taken from blood, tissue and hair found on the windshield and interior of the pick-up truck proved that Andrew Fallows was positioned in the driver's seat and that the deceased was positioned in the front passenger seat at the time of the impact. Blood samples taken after the accident revealed that Mr. Fallows had between 198 and 226 milligrams of alcohol in 100 millilitres of blood, which translated into him being between 2 and 2.5 times above the legal limit for the operation of a motor vehicle. Mr. Fallows was also unlicensed and uninsured at the time of the motor vehicle accident.
Pursuant to s. 724(2) of the Criminal Code I am permitted to find that any other fact disclosed by evidence has been proven. In that regard, I accept the entirety of the evidence of all of the witnesses called by the Crown and find that it establishes, beyond a reasonable doubt, further information relevant to the determination of the appropriate sentence. Specifically, I accept that Andrew Fallows reported to Alyssa Coulton, a few weeks following the accident, that in the immediate aftermath of the accident he had panicked and moved the seat of the truck forward to make it look like the deceased had been driving. It is also clear on the evidence that in the immediate aftermath of the accident Mr. Fallows slid himself over into the passenger seat of the truck, moved the body of the deceased on top of him and looped the passenger side shoulder belt around his arm. These are the positions in which first responders found Mr. Fallows and the deceased when they came upon the scene.
All of this, I find, was intended to deflect any suspicion away from Andrew Fallows being the operator of the truck and to place the blame on either the deceased or a third party, having been the driver. Indeed, I accept the evidence of investigating police Officer Bruce that Andrew Fallows claimed that there had been a third party in the pick-up truck. This caused police to embark on an intensive search of the area.
This pattern of deflecting suspicion away from Mr. Fallows, having been the driver continued at the scene, at the hospital and back at home in Seebright in statements made by Fallows to police officers, nurses and to his friends Jessica Lyons and Alyssa Coulter. I accept that Andrew Fallows deliberately understated to police the number of drinks that he had consumed that evening. The information that he provided to both Officer Bruce and Police Constable Emerson Stringer was contradicted by the blood alcohol readings and his admission of having consumed 21 drinks that he made to the emergency nurse at Royal Victoria Hospital. The most damming of the post-accident statements was that made to Jessica Lyons to the effect that the deceased told Fallows to turn when the deceased spotted the McDonald's sign at Highway 11, he did so. Andrew Fallows then switched his story several times after that. I find that Andrew Fallows made the statements in question to the various post accident witnesses and that those statements were accurately reported by the witnesses. I find that those statements they helped to establish the truth of what happened that night: that Andrew Fallows was driving while intoxicated, that the deceased was a passenger, and that the accident happened when Andrew Fallows failed to negotiate his vehicle onto Highway 11. For the purpose of the sentencing, they also demonstrate to the satisfaction of the court that immediately following the motor vehicle accident, Andrew Fallows set upon a course of deliberate deceit designed expressly and solely to exonerate himself and to place some other person behind the wheel of the truck that night.
The Crown
The Crown seeks: a penitentiary sentence of 8 to 10 years; a driving prohibition upon release from custody of 15 years; an order for a DNA sample; and a non-communication order in respect of the parties affected by the death of the deceased.
Andrew Fallows
Andrew Fallows spoke on his own behalf. He suggested simply that the sentence sought by the Crown was too much. Rather meekly, he suggested a sentence of between six and eight years.
The Objectives of Sentencing
The objectives of sentencing are codified in s. 718 of the Criminal Code. They are denunciation of unlawful conduct, general and specific deterrence, the separation of the offender from society where necessary, rehabilitation of the offender, reparation of harm done to the victims or community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
Section 718.2 of the Code states the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further sentencing principles are set out in s. 718.2. These direct the court to take into account any relevant, aggravating or mitigating circumstances related to the offence or the offender.
Sentencing Parameters
The Ontario Court of Appeal has made it clear that in cases of criminal negligence or impaired driving causing death, there is no fixed term upper limit: see R. v. Purtill, 2013 ONCA 692, [2013] O.J. No. 5136 (OCA). The reasons for this absence of an upper limit were enunciated by the same Court of Appeal in R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 (OCA). These include the fact that the maximum sentence under the Criminal Code is life imprisonment and that sentences should be driven by the infinite variety of circumstances in which the particular offence is committed.
R. v. Muzzo 2016 ONSC 2068, [2016] O.J. No. 1506 ONSC
Undoubtedly, the law in this province has evolved in the last decade with increasingly harsh sentences being handed down for impaired driving causing death cases. This trend culminated recently in R. v. Muzzo a decision of my sister M.K. Fuerst, J. of this court. The sentencing judge drew upon the well established principle laid down by a succession of trial and appellate courts that in cases of drinking and driving, denunciation and general deterrence are the paramount sentencing objectives, particularly in cases where death has occurred. In Muzzo, the sentencing judge considered the three earlier cases of; R. v. Ramage, [2010} ONCA 488 (a sentence of four years in the penitentiary and a five year driving prohibition was upheld on appeal): R. v. Junkert, [2010] ONCA 549 (a sentence of five years in the penitentiary and a ten year driving prohibition were upheld on appeal; and the Kummer decision from 2011 (where a sentence of eight years in the penitentiary and a 12 year driving prohibition was upheld on appeal). The sentencing judge in Muzzo suggested that the "increasing sentences reflect society's abhorrence for the often tragic consequences of drinking and driving and its concern that the problem of drinking and driving has persisted". This led the sentencing judge to conclude the sentencing decisions which pre-date Ramage, Junkert and Kummer have diminished values as guidelines. After carefully considering the significant aggravating and mitigating factors in the case before her, the sentencing judge in Muzzo found a ten year period of incarceration together with a 12 year driving prohibition to be just and appropriate.
I would adopt that reasoning and follow the approach taken by the sentencing judge in Muzzo. There is, however, one critical and unmistakable difference between this case and the Muzzo case and it is this: the defendant in Muzzo caused the death of four innocent people as well as bodily injury to two others. In the present case the senseless, selfish, reckless, negligent and criminal conduct of Andrew Fallows claimed only one life. That of course is one life too many. The death of Shania Slater is and always will be a despicable crime, a devastating loss to her family and friends and an irreparable tragedy. But the court in sentencing needs to consider the whole of the circumstances of the crime, including the number of victims. That approach was acknowledged as appropriate by the Court of Appeal in R. v. Kummer at para. 23.
That said, the indirect victims of this tragedy are many. I was impressed by the clarity, credibility and conviction of the victim impact statements. It would do the victims a disservice to attempt to summarize their statements here. They are part of the record. Many of them were read into the evidentiary record. Suffice to say that the content of these statements and the sincerity of which they were delivered in court will leave a lasting impression on anybody who heard them. The deceased was obviously a unique, much loved, generous and loyal sibling, daughter and friend. Her family, friends, and the local and wider community have been permanently deprived of a very special person by the reckless and wanton foolishness of Andrew Fallows.
Mitigating Factors
There are few, if any, mitigating factors here. Andrew Fallows remains a relatively young man which might leave some hope for rehabilitation. I accept that Andrew Fallows did not re-offend while out on judicial interim release. The presentence report does paint a picture of a young man who has been a contributing member of society. He is now engaged to his fiancée.
However, whether intentional or not, it was plain to the court that even in his final submission, Mr. Fallows was cagey in how he presented, stating only that he was sorry that the events happened and that he had wasted everybody's time. In my view, this falls well short of taking responsibility for his actions or expressing remorse for his conduct. I give little weight to the patchy evidence in the presentence report that Andrew Fallows has embarked on a self-directed course of rehabilitation from his previous drug and alcohol abuse. First, there is no evidence that Andrew Fallows has participated in any formal rehabilitation program since the events three years ago, although he had ample time to do so before his bail was revoked following his conviction; second, it is apparent from the evidence at trial that in the immediate aftermath of the tragic event of October 4, 2014 he continued to drink. On at least one occasion he was drinking in the presence of Jessica Lyons while continuing to offer conflicting versions of how the accident had happened. I agree with the Crown that any suggestion that Andrew Fallows is serious about rehabilitation or is a good candidate for rehabilitation is simply not supported by the evidence.
Aggravating Factors
The aggravating factors here are many.
First, the fact that Andrew Fallows was operating his truck with blood alcohol exceeding the legal limit by 2 to 2.5 times is mandated by statute to be aggravating. The evidence suggests that Andrew Fallows consumed as many as 21 drinks over the course of the evening; that is an outrageous amount of alcohol to consume prior to operating a motor vehicle.
Second, Andrew Fallow's post-accident conduct was egregious, cowardly and shameless: his shifting of the driver's seat forward coupled with his desperate attempt to reposition himself and his helpless passenger while she lay vulnerable in a destroyed vehicle; his misinformation designed to send investigating police on a wild goose chase for a third person operator and to deflect suspicion away from himself; the contradictory statements about his alcohol consumption that evening, ranging from one rye and coke to Constable Emerson Stringer, to 21 drinks to emergency nurse Sara Warden; his flight from the Royal Victoria Hospital when it became obvious that he was under investigation; and the litany of inconsistencies interspersed in the various versions of events he offered to police and lay persons in the hours and days following the crime. The totality of Andrew Fallows' post-offence conduct was not just aggravating; it was appalling. It reveals an individual with absolutely no insight into the severity and repercussions of the crime that he had just committed.
Third, Mr. Fallows has a previous conviction for over 80 operation of a motor vehicle in 2011. One is given to wonder, what, if anything, he learned from that previous experience before the courts which brought with it a license suspension and a hefty fine.
Four, Mr. Fallows was operating the pick-up truck on October 4, 2014 without a driver's license and without insurance.
Five, Andrew Fallows had the option not to drive that night. There is no suggestion that he was responding to an emergency, taking himself out of harm's way or needed to return home for some urgent reason. A cab, a motel, or simply staying put would have been far preferable options to attempting to operate the vehicle in a state that he was.
Six, while there is no evidence of the speed at which the truck was being operated at the time of the impact, the nature and extent of the damage to the concrete median and the truck itself suggest both erratic and reckless driving.
Seven, the evidence makes it clear that Andrew Fallows had not maintained the passenger seatbelt assembly in proper working order. There was no seatbelt protection available to Shania Slater as a passenger in Andrew Fallows' truck. While there is no evidence on point, one must assume that had there been a functioning seatbelt available the deceased might have availed herself of it. This could only have increased her chances of survival in a collision.
Finally, Andrew Fallows has not just taken a life and impacted to the point of devastation the lives of the deceased's entire family and many in the community. He has done so at a time when he was living and working among them. It is clear from the evidence at trial, the information found in the pre-sentence report and the contents of the victim impact statements that Seebright is a small and tight-knit community. While communities certainly experience harm and loss brought about by violence and crime committed by random outsiders there is, in my view, something far more pernicious, something indelibly more terrible about crimes committed upon people by individuals they have come to know and trust. Instinctively, one is more apt to rely upon and place both trust and faith in the persons we know and who form part of our lives. Not only was Andrew Fallows not worthy of the reliance that was placed on him to see that his passenger made it home safely that night, but by his reckless conduct, deceit and obfuscation in the hours and days that followed, he has destroyed whatever faith and trust he might have enjoyed in the community. This, in my view, is an aggravating factor.
Summary
Specific deterrence is especially important in this case because Andrew Fallows has a prior record of driving over 80. Moreover, the fact that he did not have a license or insurance did not deter him from operating a vehicle and, on the tragic day in question, from doing so while impaired. In tailoring an applicable sentence for Mr. Fallows the court must consider both the record of Mr. Fallows for similar behaviour and his willingness to operate a vehicle even when he was legally prohibited from doing so. I simply have no confidence that he would not operate a motor vehicle soon after his release from custody. A lengthy term of incarceration is called for to simply prevent him from driving again. The principle of separating the offender from society supports a lengthy period of incarceration.
Mr. Fallows' outrageous conduct before, during and after the tragic accident is deserving of the harshest denunciation. A lengthy driving prohibition following a custodial sentence must accompany any sentence. Mr. Fallows has proven himself to be a danger on the highway and unworthy of the privilege of driving. He must be prevented from driving for a good long time following his release from custody. Others like him must be deterred from impaired driving. The principle of general deterrence is highly engaged here. The public and other motorists have a right to orderly and lawful behaviour on our highways and to be safeguarded against the menace of impaired driving to the extent that the law can provide that protection.
But for the fact that one life rather than multiple lives were taken by Andrew Fallows by his criminal act I would have been inclined to follow the highly persuasive precedent in Muzzo and impose a ten year penitentiary term. I am not prepared to go quite that far.
Nevertheless, the nature of the crime, its outcome, its impact on the victims, taken together with the very few mitigating factors and the numerous aggravating factors leave me with no doubt that a very lengthy penitentiary term, one that approaches but does not quite match the one handed down in Muzzo is both just and appropriate. I have concluded that the range suggested by the Crown is reasonable. A sentence in that range will respect and advance the twin principles of denunciation and deterrence.
Disposition and Sentence
Mr. Fallows, would you please stand:
Having applied the principles of sentencing, having considered all of the circumstances, the evidence supporting the verdicts reached by the jury, together with the evidence at trial, the victim impact statements, the pre-sentence report, the mitigating and aggravating factors and the case law in similar cases, I sentence you as follows:
Count 1: Impaired operation of a motor vehicle causing the death of Shania Slater, to nine years in the penitentiary;
Count 4: Criminal Negligence in the operation of a motor vehicle causing the death of Shania Slater, to nine years in the penitentiary, concurrent.
At the suggestion of the Crown and under the principles in R. v. Keinapple, the charges on Counts 2 and 3 for over 80 causing death and dangerous driving causing death are stayed.
Ms. Saunders, is that stayed or conditionally stayed? Your submission.
MS. SAUNDERS: Stayed.
THE COURT: Those....
MS. SAUNDERS: A judicial stay. As opposed to a Crown stay, yes.
THE COURT: Judicial stay, thank you. They being lesser, included offences on counts one and four, respectively.
From the penitentiary sentence you will receive 1.5 to 1 credit for time served in custody since your bail was revoked on August 1st, 2017. Subject to the submission by the Crown, that being a total of 109 days, you shall receive a credit of 164 days off that nine year sentence. This leaves a remnant sentence of eight years and 201 days left to serve.
In addition to the above penitentiary term on counts one and four there shall be an order prohibiting you from driving for a total 12 years following your release from incarceration. This is identical to the prohibition order in Muzzo which I find to be just and appropriate. The driving prohibition orders are to run concurrently with each other.
In light of the chaos and sorrow you have wrought upon the friends and family of Shania Slater there shall be a non-communication order during the custodial period. You shall not communicate by any means whatsoever directly or indirectly with the following persons: Melissa Slater, Tom Newman, Nicole Thibault, Rosemary Looyenga, Yvon (Ivan Pilon), Brooke Henderson, Cathy Henderson, Randy Payne, Cindy Payne, Larry Slater, Shannon Slater, Stefanie Slater or Ricci Lee Snell during the period of incarceration.
You are ordered to provide a DNA sample as prescribed by the Criminal Code. Finally, I order you to pay the applicable victim surcharge within 90 days. And that is the sentence of the court. Ms. Saunders, I did a total of 190 days, is that accurate? Of incarceration since the bail was revoked?
MS. SAUNDERS: Your Honour, I didn't, I didn't do the math myself but that does seem about right. The whole of....
THE COURT: Are you content with one and a half to one?
MS. SAUNDERS: Yes, I am. Thank you, sir.
THE COURT: All right, that being the case....
MS. SAUNDERS: There would be no reason to depart from it in my submission.
THE COURT: Thank you. And that being the case, there's a remnant sentence of eight years and 201 days left to serve. Is the wording of the DNA sample appropriate for your purpose?
MS. SAUNDERS: It's a primary designated offence in relation to both of the offences for which convictions have been registered.
THE COURT: Thank you.
MS. SAUNDERS: So I'm asking that the order reflect both of those counts, please.
THE COURT: It will.
MS. SAUNDERS: Thank you.
THE COURT: So it shall. And is the non-communication order, the wording of that sufficient for the purpose?
MS. SAUNDERS: Yes, I - it's an order pursuant to s. 743.21 under the Criminal Code and I think I'm content with all of those that Your Honour listed, they capture everybody who provided a victim impact statement as well as some of the witnesses from trial.
THE COURT: Okay.
MS. SAUNDERS: I can't think of any other names that I would ask the court to consider.
THE COURT: I'll go through the list again, just so you're clear. Melissa Slater, Tom Newman, Nicole Thibault, Rosemary Looyenga, Yvon (Ivan Pilon), Brooke Henderson, Cathy Henderson, Randy Payne, Cindy Payne, Larry Slater, Shannon Slater, Stephanie Slater, Ricci Lee Snell.
MS. SAUNDERS: Could I ask for your indulgence for just - I just want to make sure there isn't another member of the Slater family who opted not to file a victim impact statement that I'd ask you to consider adding.
THE COURT: Yes.
MS. SAUNDERS: Again, your indulgence for a moment, please.
THE COURT: Madam Registrar, do you have the indictment there?
CLERK REGISTRAR: I put it up there, Your Honour.
THE COURT: That's a copy.
CLERK REGISTRAR: It's right there.
THE COURT: All right.
MS. SAUNDERS: Your Honour, there are two other members of the Slater family who didn't prepare victim impact statements, I'm going to ask Your Honour to consider adding them, they are Dylan Slater and Kaitlyn Slater. Is that with a K or a C?
MS. SLATER: A K.
MS. SAUNDERS: K, K-A-I-T-L-Y-N?
MS. SLATER: Yes.
THE COURT: Because this is additional to my non-communication order, I'm not going to ask for any submissions by Mr. Fallows. I'm simply, I'm simply going to add those, Dylan Slater and Kaitlyn Slater to the list of people to whom the non-communication order would apply.
MS. SAUNDERS: Thank you very much.
THE COURT: Under s. 743.21 of the Criminal Code and that will be amended accordingly. Are there any further questions or submissions?
MS. SAUNDERS: Not on behalf of the Crown, sir. Thank you very much.
THE COURT: I am going to give - now again, this is just a working copy for the court reporter, Madam Reporter. What I read out is the official version, and this is for the Crown. Mr. Fallows, do you require a copy of that?
MR. FALLOWS: No, that will be fine.
THE COURT: All right, thank you. Then Mr. Fallows will not receive a copy. That is all. Madam Registrar, you will provide the paperwork I need to sign?
CLERK REGISTRAR: Yes, I will.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Heryet, certify that this document is a true and accurate transcript of the recording of R. v. Andrew Fallows in the Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario taken from Recording No.(’s) 3811-02-20171117-075951-20-MCCARTJOH.DCR which has been certified in Form 1.
February 27, 2018 __________________________________
Shannon Heryet ACT #3389634078