Court File and Parties

COURT FILE NO.: 17-A9898 DATE: 2018/06/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARC AUGUSTE Accused

Counsel: Jason Neubauer, for the Crown Kim Hyslop and Matthew Day, for the Accused

HEARD: November 2, 2017, January 17, April 23 and June 5, 2018

Sentencing Decision

RATUSHNY J.

[1] Mr. Auguste has pleaded guilty to dangerous driving causing bodily harm contrary to section 249(3) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”).

1. The Facts

[2] On February 9, 2017, the victim, Nellekie Boutot, was on a country road, driving home from work in the middle of the afternoon. She stopped at an intersection controlled by a flashing red light and four stop signs. When it was her turn, she proceeded through the intersection. She was in the middle of the intersection when her vehicle was struck on the driver’s side by the empty school bus driven by Mr. Auguste. He had failed to stop at his stop sign.

[3] It was a sunny day. The road was level and straight, and clear of ice and snow for Mr. Auguste in his approach to his stop sign. The posted speed limit was 80 kilometres per hour and Mr. Auguste was driving slightly above that limit, in the high 80s.

[4] Ms. Boutot suffered multiple and serious injuries.

[5] There is no explanation for the collision, other than Mr. Auguste’s failure to stop at his stop sign due to momentary inattention. There is no evidence of distracted driving because of cell phone or other use of an electronic device.

2. The Victim

[6] Ms. Boutot and her husband, Ghislain Boutot, filed poignant Victim Impact Statements describing the before and after of their lives. Their statements express no anger although they no doubt have harboured some. Instead, they speak with great sorrow of the continued pain and suffering that this new turn in their lives has inflicted on them.

[7] At 65 years of age, Ms. Boutot suffered a severe concussion, fractured pelvis, ribs and spine, internal injuries to her bowel and kidney, and leg injuries. She required two surgeries and a subsequent tracheotomy. She was hospitalized for approximately four months and still requires daily in-home care. Her physical rehabilitation is extensive and ongoing. She suffers from memory loss and speech deficits as a result of her injuries from the collision. She requires a walker to walk.

3. The Accused

[8] Mr. Auguste is 34 years of age. He has no prior criminal record. He has a somewhat dated record under the Highway Traffic Act, R.S.O. 1990, c. H.8, indicating a 2006 conviction for disobeying a red light, a 2008 conviction for failing to come to a stop at an intersection and later in 2008, for disobeying a red traffic signal light.

[9] All sources indicate, as one friend said, that Mr. Auguste is a good man and a friend to everybody. He is married with an 8 month old daughter. As his wife stated in a letter to the Court, “At this present time, we are staying hopeful that both Ms. Boutot’s family and our own will be restored”.

[10] The Presentence Report is very positive and indicates no alcohol or illicit drug issues.

[11] Mr. Auguste, like his wife, has expressed a great deal of regret and remorse for the collision. He is concerned for the victim and her family. He is consistently described as a responsible and dedicated individual in his personal life pursuits as well as at his places of employment. At the time of the collision, he had been working as a school bus driver for six months. After the collision he lost that employment but was able to find new employment as a direct support professional worker with a support residence for clients with Down syndrome. That employment involves driving company vehicles to assist clients. His employer is aware of the present offence and has continued to employ him including continuing his driving duties, however, she has indicated in a letter to the Court that his continued employment cannot be guaranteed depending upon the circumstances of this sentencing.

[12] Mr. Auguste wrote a letter of regret to the Court and of apology to the Boutot family. I trust it has been provided to Ms. Boutot and her husband. He writes of how he wishes he could go back and undo what happened to Ms. Boutot. He wants to be able to keep providing for his wife and daughter and, as he says, “while at the same time taking responsibility for the accident”.

[13] Of course, it was more than an accident. Mr. Auguste’s momentary inattention and resulting failure to stop at a very visible and well-marked intersection while driving a heavy vehicle at more than 80 kilometres an hour was a serious criminal offence. He almost cost Ms. Boutot her life and he certainly caused life-long and life-altering suffering and consequences for her and her family.

4. Sentencing Positions

[14] Defence counsel requests a sentence that would allow Mr. Auguste to continue to support his family. He is well regarded by his past and present employers notwithstanding their knowledge of his plea of guilt to the present offence. Defence counsel recommends a suspended sentence, 18 months’ probation and a one-year driving prohibition. In the alternative, he requests an intermittent sentence.

[15] Crown counsel requests a four-month jail sentence followed by 12 months’ probation, including community service work and a two-year driving prohibition.

[16] A conditional jail sentence is not statutorily available for this offence.

[17] Both counsel agree that neither a section 109 Order nor a DNA Order is required.

5. Analysis

[18] The applicable sentencing objectives include and require a balancing between denunciation, deterrence, rehabilitation and, of course, the ultimate balancing in accordance with the proportionality principle, between Mr. Auguste’s degree of responsibility, his moral culpability for his offence, and its gravity.

[19] There is no need for specific deterrence as an objective of this sentencing. I accept it has already been served. I also accept that Mr. Auguste’s remorse is genuine and that this offence was an isolated incident out of character for him.

[20] It is an analysis of Mr. Auguste’s moral blameworthiness and its effect on the requisite balancing among the sentencing objectives that directs this sentencing. There is no doubt that the offence of dangerous driving causing bodily harm is a very serious offence. It exposes the entire community to serious risk with all-too-often disastrous consequences. Ms. Boutot was so very unlucky that day to be abiding by the rules of the road, only to be hit by a heavy vehicle whose driver was not abiding by those rules.

[21] Counsel have provided me with a number of driving cases where the analysis of moral blameworthiness turns on the driving conduct of the accused and where the sentence is quite often higher or lower depending on the degree of dangerousness of that conduct. For Mr. Auguste, in contrast to other cases referred to by counsel, there was no excessive speeding, no prolonged bad driving, no racing, no dangerous manoeuvres, no use of a handheld device, no alcohol, no evidence of a deliberate course of bad conduct and no fleeing the scene. In addition, and assigning less weight to Mr. Auguste’s Highway Traffic Act convictions as they pre-date the collision by seven years, Mr. Auguste has no criminal record.

[22] I agree, as both counsel appear also to have agreed, that Mr. Auguste’s moral culpability is situated lower on the spectrum of dangerous driving conduct. Sadly, as is too well known, his reduced moral culpability does not carry through to correspondingly affect the gravity of the injuries caused.

[23] Mr. Auguste is to be sentenced for an unexplained moment of inattention causing him to drive through a flashing red light and a stop sign, with disastrous consequences. He is to be sentenced for conduct that was out of character for him at the time. He is of otherwise good character, highly regarded in his community and by his employers and is the sole financial supporter of his family.

[24] From all of these circumstances, the factors serving to aggravate the sentence are the extent of the victim’s injuries, the speeding although not excessive, the size and nature of Mr. Auguste’s vehicle and his employment as a school bus driver requiring, I think it reasonable to conclude, extra care and attention from him as a professional school bus driver, and lastly although of diminished influence, his provincial driving record.

[25] The factors serving to mitigate sentence are his plea of guilt, his lack of a criminal record, his relative youth, his pro-social lifestyle, his supportive family, friends and community, his good employment record, and his sincere expressions of remorse.

[26] In all of these circumstances, if a conditional sentence were available as a sentencing option, a jail sentence able to be served in the community, in my view, that would have been an appropriate sentence. Such a grave offence by an otherwise good person highlights how dangerous driving always poses a significant risk to the safety of all members of the community and why it so often requires significant denunciation and punishment by way of a jail term. A conditional sentence imposing strict house arrest would have adequately emphasized these objectives in all of the particular circumstances of this case and could have, at the same time, been tailored to allow Mr. Auguste to maintain his employment. I regard Mr. Auguste’s ability to be employed and to continue to support his family as an important ingredient of an appropriate sentence in all of his circumstances.

[27] In any sentencing, a balance has to be struck among the offender’s circumstances, the circumstances of the offence, the sentencing objectives, the principle of restraint and the sentencing options available. Although jail is so often appropriate for dangerous driving conduct, it is painfully obvious that no amount of jail will help, nor can it ever help, repair the physical harm done to Ms. Boutot and her family. No amount of jail will serve to specifically deter Mr. Auguste in the future, as I expect he will never forget the terrible consequences of his momentary inattention and will always be a good and careful driver. And, I conclude, no amount of jail time, even served intermittently, will allow Mr. Auguste to maintain his employment because of his present work schedule. Defence counsel has filed his present work schedule, should he be able to continue at that employment, indicating that he works either three or four-day shifts between seven hours and ten hours long, with irregular days off.

[28] In all of these circumstances, although admittedly open to an appearance of being light on the balance scale for denunciation and general deterrence, the appropriate sentence, in my view, is a suspended sentence with three years’ probation so as to impose the maximum amount of community service work which, given Mr. Auguste’s present work schedule, will not be easy. I also impose a curfew for the first six months of probation as a measure of restriction of his liberty. These conditions imposing three years of probation, six months of curfew and a hefty amount of community service work are meant to emphasize, in addition to having a criminal record, the objectives of denunciation and deterrence and in respect of the community service work, to serve as a small token of repayment to the community for his offence.

[29] I decline to impose a driving prohibition, a discretionary measure under s. 259(2) of the Code, on Mr. Auguste. I do not assess him as presenting any danger to the public. He has been entrusted by his employer with driving duties since the collision and he may be able to keep his employment, or similar employment, if he is able to continue to drive.

Mr. Auguste, please stand at this time.

[30] It is for these reasons that I impose a suspended sentence with three years’ probation, the maximum period of probation that is statutorily available, 240 hours of community service work during those three years, being the maximum allowable amount of community service work able to be imposed, and six months of curfew.

[31] Your probation terms include the mandatory terms. I direct the registrar to review them with you. In addition, there are other terms as follows. You are to report to a probation officer today for the purpose of directing your performance of community service work and you are to continue to report as directed by your probation officer until you have completed your 240 hours of community service work. When you have completed that work, your reporting condition is at an end although the other probation conditions continue. You are to remain within your place of residence between the hours of 12 midnight and 5 a.m. each day for the first six months of your probation. The only exceptions to that curfew are that you are able to leave your place of residence between those hours for purposes of personal medical emergencies of you and your immediate family, including your mother, and for the purposes of employment if confirmed by a letter from your employer. You are to perform a total of 240 hours of community service work. You are to commence that work at a place, time and rate as directed by your probation officer. You are to complete your 240 hours prior to the expiry of 30 months of your three year probation order. Finally, you are to provide and sign appropriate releases as required by your probation officer to allow that officer to confirm your compliance with your community service work condition.

[32] Please understand that each term of your probation order is a court order and should you fail to comply with any term, you risk a criminal charge of breach of probation and being before the courts again.

The Honourable Madam Justice Ratushny Released: June 25, 2018