Court File and Parties

Court File No.: CR-17-257 Superior Court of Justice

HER MAJESTY THE QUEEN v. JASON WILLIAM HEFFERNAN

Reasons for Sentence

BEFORE THE HONOURABLE MADAM JUSTICE M.K. FUERST on Tuesday, August 7th, 2018, at BARRIE, Ontario.

APPEARANCES: K. Hull, C. Ross, Co-Counsel for the Crown S. Robichaud, Counsel for Jason Heffernan

Tuesday, August 7th, 2018.

REASONS FOR SENTENCE

FUERST, J. (Orally):

Introduction

Twenty-nine year old Corby Stott went to a Midland shopping plaza with his mother and two young sons on a summer afternoon. What should have been a routine family outing ended in tragedy.

Jason Heffernan, who is now 27 years old, pleaded guilty to criminal negligence causing Mr. Stott’s death, in the operation of a motor vehicle.

I must determine the just and appropriate sentence for Mr. Heffernan.

It is trite to say that sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para. 58, “a highly individualized exercise that goes beyond a purely mathematical calculation.” The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge, who must also have regard to the principles of sentencing.

The Circumstances of the Offence

On the afternoon of July 2nd, 2016, Mr. Stott, his mother, and his sons who were then five and two years old, were in his vehicle in the exit lane of the parking lot of a retail plaza. They were caught in a line-up of vehicles all trying to exit the plaza.

The congestion was severe. Several drivers used a shipping lane at the rear of some of the stores, to circumvent the line-up and get out of the parking lot. The laneway was clearly marked for one-way traffic. Drivers ignored the signage and drove through the lane in the opposite way to that marked. This caused a longer wait for vehicles, including that of Mr. Stott, who were in line to exit the parking lot.

Mr. Stott got out of his vehicle and stood at a corner of the complex. He tried to prevent vehicles from travelling down the laneway, including by pointing to the “one way” sign and explaining to drivers that they were causing additional congestion.

As time went on, witnesses described Mr. Stott as becoming more aggressive with vehicles trying to use the laneway. While some witnesses described Mr. Stott as asking drivers nicely to get back in line, others described him as agitated and frustrated. Some said that he gestured tauntingly at cars to hit him.

Around 1:30 p.m., Mr. Heffernan and his girlfriend were in his bright orange-coloured car in the traffic line-up in the plaza’s exit lane. The suspension on his car had been lowered, and so the height from the ground of the front bumper and hood areas was reduced.

After remaining stationary for a period of time, Mr. Heffernan pulled out of the line-up and turned eastbound toward the laneway. At that time, Mr. Stott was standing in front of a pick-up truck to prevent its exit from the laneway.

As Mr. Heffernan approached the laneway, Mr. Stott stepped away from the truck and moved directly in front of Mr. Heffernan’s car. Mr. Heffernan stopped as a result.

The pick-up truck was able to proceed down the laneway, but, as it did, Mr. Stott pushed its side mirror in and slapped its tailgate.

Mr. Stott was then in front of Mr. Heffernan’s car. A photograph shows him standing in front of the car with his arms crossed.

Because the car was a standard transmission and there was a slight decline in the laneway, Mr. Heffernan had to work the clutch to stay stationary and avoid rolling backwards. This caused a revving sound that was amplified by the car’s modified exhaust system.

A witness described Mr. Heffernan’s car approaching Mr. Stott quickly and stopping quickly. She saw the car edge Mr. Stott by the shins two or three times, forcing him to step back. A number of witnesses heard both Mr. Heffernan and Mr. Stott raising their voices.

Mr. Stott ended up on the hood of Mr. Heffernan’s car. According to the Agreed Statement of Facts, witness accounts differed as to how that happened. Some witnesses said that the motion of the car precipitated Mr. Stott coming onto the hood. Others testified that Mr. Stott jumped onto the hood. Still others said that Mr. Stott fell onto the hood. One witness said that Mr. Stott fell, but was not hit.

It is not possible for me to make any finding as to how Mr. Stott came to be on the hood of Mr. Heffernan’s car, given that the Agreed Statement of Facts simply summarizes differing accounts and does not set out any agreement on this point.

It is agreed that while on the hood of the car, Mr. Stott punched the windshield and caused three large spider web smash marks to it. According to the Agreed Statement of Facts, either Mr. Stott began striking the windshield with his right hand while holding it with his left hand causing Mr. Heffernan to accelerate in response, or Mr. Heffernan accelerated and Mr. Stott began striking the windshield in response. Again, it is not possible for me to make any finding as to which came first, the acceleration of the car or the punching of the windshield, given that the Agreed Statement of Facts simply summarizes differing accounts and does not set out any agreement on this point.

It is agreed that witnesses heard Mr. Stott yell, “Stop” while he punched the windshield.

Mr. Heffernan travelled to the end of the laneway with Mr. Stott still on the hood of his car. Near the northeast corner of the plaza, Mr. Heffernan’s driving caused Mr. Stott to come off the vehicle onto the pavement. According to the Agreed Statement of Facts, some witnesses said that Mr. Stott was thrown or flew off the hood, while others said that he slid off. Some witnesses said that Mr. Stott came off the hood because Mr. Heffernan applied his brakes, while others said it was because Mr. Heffernan swerved. It is not possible for me to make any finding as to precisely how and why Mr. Stott came off the hood, given that the Agreed Statement of Facts describes differing accounts and does not set out any agreement on this point.

It is agreed that accident reconstruction indicated that Mr. Heffernan accelerated to between 43 to 48 kilometers per hour, at which point Mr. Stott left the hood of the car, travelling 11.3 meters before coming to rest on the pavement.

In the Agreed Statement of Facts, Mr. Heffernan specifically admits that his driving down the laneway, in the manner and speed that he did and with Mr. Stott on his vehicle, was criminally negligent. He specifically admits that this negligence caused Mr. Stott to fall from the vehicle and caused the death of Mr. Stott.

After Mr. Stott came off the vehicle, Mr. Heffernan turned right and drove south around the northeast corner of the plaza past the southeast corner, through a cutout in the curb. He continued a relatively short distance south in the parking lot and parked approximately 240 feet from where Mr. Stott left the hood.

Mr. Heffernan called 911. Among other things, he said that “some guy just started attacking me on my fucking car”, and that “he smashed my windshield in”. In response to questions, he said that the guy was down and was injured and that an ambulance was needed.

Several other people called for police and ambulance.

Paramedics arrived at the scene and found Mr. Stott with vital signs absent. He was taken to hospital, and pronounced dead. An autopsy determined that cause of death was blunt force head trauma. There were significant injuries to the base of the skull. The head injuries were such that death was inevitable.

Police officers spoke with witnesses and with Mr. Heffernan at the scene. He was arrested and charged with murder.

The Victim Impact Information

Victim Impact Statements were provided by Mr. Stott’s partner, his mother, and his two brothers. He is described as a kind and caring person, and an outstanding father to his two young sons.

Mr. Stott’s partner of six years described how everything in her life has changed. She suddenly found herself a single parent of their young son, and the sole provider for the family. Every day is a challenge for her in dealing with her feelings and emotions. She was diagnosed with post-traumatic stress disorder, and sees a psychologist weekly. Her son worries every time they are apart. Some family relations have been strained. In particular, she and her son now have only limited contact with Mr. Stott’s older child, who used to be with the family regularly. This is heart-breaking for her. She returned to work only recently, but could not go back to her previous position as a crisis worker because it was too traumatic.

Mr. Stott’s mother, who was in the car during the events at the plaza, described the manner of her son’s death as “horrifying”. She will be haunted by the incident for the rest of her life. She feels heart-broken and robbed of her joy from life.

Mr. Stott’s brothers described spending many hours together with him. His loss has been overwhelming for them.

The Circumstances of Mr. Heffernan

Mr. Heffernan was 25 years old at the time of the offence. He holds a diploma as an Automotive Service Technician, and as of February 2015 was certified as an Automotive Service Technician under provincial legislation. Prior to his arrest, he worked as a licensed mechanic, and then as a drywaller.

Mr. Heffernan has a previous criminal record for fail to comply with a probation order and possession of marijuana, both from September 2010.

He has a record of several infractions under the Highway Traffic Act in 2015 and 2016. It includes only one moving violation, for speeding in 2015.

Some sixty letters of support were provided by family members, family friends, and friends of Mr. Heffernan. They described him as being part of a close-knit, loving and hard-working family. He is repeatedly said to be a kind, gentle, respectful, considerate, conscientious and caring person who would not intentionally harm anyone. His offence is inconsistent with his character and surprising to those who know him. He has expressed remorse and regret for his actions.

Mr. Heffernan spent 60 days in jail after his arrest. Since his release on bail, he lived with his parents. They report that he has been in perfect compliance with his bail conditions.

While on bail, Mr. Heffernan was employed by two of his sureties, who have a construction company. He worked as a labourer at jobsites, and also helped in the office. His employers describe him as a hard worker who has a positive attitude and was eager to learn, contributed to the team, and is well-liked by staff and clients.

Since the offence, Mr. Heffernan has experienced panic attacks, anxiety, depression, difficulty sleeping and worry thinking. He was diagnosed with post-traumatic stress disorder and generalized anxiety disorder by his family physician. He was prescribed medication for anxiety and sleep issues, and it was suggested that he participate in supportive counselling and behavioural activation.

Initially he had counselling with his physician’s in-house social worker. In April 2017, Mr. Heffernan initiated a referral to another experienced social worker for assessment and counselling. She reports that he presents with extreme depression and impairing anxiety. He began counselling with her, but in her opinion, he needs continued psychological counselling.

Mr. Heffernan’s parents report that they have observed him, with the help of counselling, approach situations in a more positive and patient way. He has the ongoing support of his parents as well as his two brothers.

Mr. Heffernan submitted a letter at the sentencing hearing. In it he said that he realizes he is the only person responsible for what he did, and that he must bear the consequences and be held accountable for it. Counselling has assisted him in understanding the impact of his actions on Mr. Stott’s family. He reflects daily on Mr. Stott. He apologized to the Stott family. He said that he now recognizes he cannot get lost in emotion or reaction to any situation.

The Positions of the Parties

The Crown seeks a sentence of six to eight years in jail, less pre-trial custody credited as 90 days, a 15 to 20 year driving prohibition, a DNA order, a s. 109 order, and imposition of the victim surcharge.

On behalf of the Crown, Ms. Ross submits that the key principles of sentencing in this case are denunciation, general deterrence, rehabilitation, protection of the public, and proportionality. Mr. Heffernan lost his temper and chose to use his car as a weapon. He moved it back and forth to Mr. Stott, pushing on his legs, and causing him to fall or jump onto it. Knowing that Mr. Stott was on the hood, Mr. Heffernan then moved forward without slowing down to give Mr. Stott a chance to get off, and caused him to slide or fall off the car. When Mr. Stott hit the pavement and was motionless, Mr. Heffernan did not stop to see if he needed help, but selfishly drove off at a high rate of speed. His call to 911 did not display remorse. There is a very high level of moral blameworthiness. The impact of Mr. Stott’s death on his family is an aggravating factor.

Mr. Ross acknowledges that Mr. Heffernan pleaded guilty, but says this was not an early plea as it came after an extensive preliminary hearing. She concedes that Mr. Heffernan has a supportive family, which is important for his rehabilitation, and that while he has a prior criminal record, it is minimal and unrelated.

On behalf of the defence, Mr. Robichaud seeks a sentence of 18 to 27 months in jail, and a five year driving prohibition. He submits that the applicable principles of sentencing are denunciation and rehabilitation. Deterrence would not be a factor in a person’s reaction to this kind of situation, and specific deterrence is not a concern because this behavior was an aberration for Mr. Heffernan. Mr. Robichaud emphasizes that the offence to which Mr. Heffernan pleaded guilty was criminal negligence causing death. The jurisprudence indicates that this offence defies the setting of a range of sentence. Mr. Robichaud argues that this is not a case involving an active level of negligence, such as choosing to get drunk and drive, which would attract a sentence in the range suggested by Crown counsel. Rather, it is a case of a negligent act as a result of a reaction that was excessive. That attracts a lower sentence. Mr. Heffernan reacted to Mr. Stott being on the hood of the car by driving as he did with Mr. Stott in that position. Mr. Heffernan did not drive away to escape liability. He travelled a short distance and stopped, then called 911. He remained at the scene.

Mr. Robichaud submits that Mr. Heffernan pleaded guilty. He is very remorseful. The preliminary hearing was of great benefit in reaching a resolution. There is no history of aggression on Mr. Heffernan’s part. His prior criminal record is minor and unrelated. He has a trade. He was employed at the time of the offence. He complied with his bail conditions. He sought counselling, which has benefitted him, and with which he wants to continue. He has support from family members and friends, as the letters indicate.

The Principles of Sentencing

The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community by it, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.

Denunciation refers to the communication of society’s condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future.

Section 718.1 of the Criminal Code sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality means that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender: see R. v. C.A.M., [1996] 1 S.C.R. 500.

Section 718.2 of the Criminal Code enumerates a number of other sentencing principles. In particular, it provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. Section 718.2 also requires that there be parity in sentencing. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Analysis

Criminal negligence causing death is punishable by a maximum sentence of life imprisonment. This is a reflection of its seriousness.

Trial judges typically try to identify a range of sentence for a particular offence, based on sentences imposed by courts in earlier decisions. However, in R. v. Linden, , the Ontario Court of Appeal observed at paragraph 2 that because the offence of criminal negligence causing death can be committed in many different ways, it defies the range-setting exercise. The sentence for the particular offence is driven by individual factors, especially the blameworthiness of the conduct. The Court commented at paragraph 3 that “[t]he more that the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.”

Subsequently, in R. v. Lam (2003), , 180 C.C.C. (3d) 127, the Ontario Court of Appeal reiterated that there is no set range of sentence for the offence of criminal negligence causing death, but noted at paragraph 10 that some of the circumstances that courts treat as aggravating factors are the consumption of alcohol or drugs, multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident. I do not suggest that this represents a closed list of aggravating factors, but it is a helpful catalogue.

Counsel provided me with in excess of 70 sentencing decisions, not all of which were specifically mentioned in their submissions. I will refer to some, but not all of them in this decision. I regard those from the Ontario Court of Appeal as particularly helpful in providing guideposts for the determination of the appropriate sentence in this case.

A sentence of two years less a day in jail followed by three years’ probation, plus a lifetime driving prohibition was upheld by the Court of Appeal in Lam, referred to above, for an offender who was found guilty of criminal negligence causing death after a trial. The offender drove a vehicle that was modified to attain high speeds. He engaged in “a show of speed” with another vehicle, in a built up commercial area at one of the busiest times of the day, for less than a minute. While at a speed more than twice the posted maximum, he collided with another vehicle. The offender, who was in his mid-twenties, had no prior criminal record and only one speeding violation on his driving record. He was employed, and had no history of violence or aggression. He had obeyed strict bail conditions for over two years. He was already on parole by the time the appeal was heard. The Court of Appeal found that the sentence was not demonstrably unfit, but commented that it could have been more substantial.

In R. v. Nusrat, 2009 ONCA 31, the Court substituted a conditional sentence of two years less a day plus probation, with one of 30 months in jail, and upheld a lifetime driving prohibition, for an offender who pleaded guilty to criminal negligence causing death while street racing. The offender and two other motorists cut in and out of rush hour traffic on Highway 400 at very high speeds, over some distance. The offender’s car came in contact with a truck, causing the driver of the truck to lose control and swerve across lanes into a ditch. The truck driver was killed. The offender was 19 years old, had two prior convictions for speeding but no criminal record, and was remorseful. No alcohol was involved. The Court described the offender’s conduct as intentional risk taking and deliberate endangerment of other users of the road, and noted its duration.

Linden, referred to above, exemplifies conduct by the offender that tended very much toward the deliberate endangerment of the public. The offender drove erratically for an extended period of time, after consuming alcohol and marijuana. He drove at a high rate of speed on streets in Oshawa, almost lost control of his vehicle at least once, ran three red lights, and drove into the victim’s vehicle. He was 21 years old, had a prior criminal record but no driving record, and a history of alcohol and drug addiction. He pleaded guilty to criminal negligence causing death. The Ontario Court of Appeal upheld a sentence of five years in jail, and a 15 year driving prohibition.

In R. v. Mascarenhas, , the offender pleaded guilty mid-trial. He drove with a blood alcohol level over four times the legal limit. His car left the road on a curve, and struck and killed two pedestrians who were walking on a roadside path. The offender was on bail at the time for drinking and driving offences and bound by conditions prohibiting him from driving and from drinking, his driver’s licence was suspended for unpaid fines, he had prior convictions for drinking and driving offences, and he had a long history of alcohol abuse. The Ontario Court of Appeal upheld the sentence of 9 years in jail and a lifetime driving prohibition, for the offence of criminal negligence causing death. At paragraph 29, the Court noted that cases that justified lower sentences for this offence involved mitigating factors such as the offender’s youth, the absence of a criminal record, exemplary character, remorsefulness, meaningful rehabilitative efforts, or a significantly lower blood alcohol level.

In submissions to me, Crown counsel put particular emphasis on the decision in R. v. Ibrahim, 2016 ONSC 1538, a decision of another judge of the Ontario Superior Court of Justice. The offender was found guilty of manslaughter after a trial. While driving his taxi, the offender struck and killed a skateboarder. The offender knew that the skateboarder was travelling alongside the taxi. The offender suddenly veered his taxi to the right, mounted the curb, knocked the victim off the skateboard and ran him over. The incident lasted only a few seconds. The trial judge sentenced the offender on the basis that he turned the car and intentionally struck the victim, and that he knew he would cause the victim some significant degree of bodily harm even though he did not intend to kill him or cause him serious bodily harm that he knew was likely to cause his death. The offender was in his mid-forties, and had no prior criminal record, but had about a dozen driving infractions. He was a hardworking, caring and gentle person. The trial judge found that the offender lost his temper and intentionally used his vehicle as a weapon. The offender was sentenced to four years in jail, and received a six year driving prohibition, which was additional to the four years that he had been prohibited from driving by his bail conditions.

I am unable to agree that this case is comparable to Ibrahim. The admitted criminal negligence in this case is not the intentional striking of the victim. It is the driving down the laneway in the manner and at the speed that Mr. Heffernan did once Mr. Stott was on the hood of the car that is admitted to be criminally negligent and to have caused Mr. Stott to fall from the car, thereby causing his death. As I have already said, how Mr. Stott came to be on the hood of the car is not something about which I can make a finding because of the way in which the Agreed Statement of Facts is framed. In particular, it states that while some witnesses testified “that the motion of the car precipitated Mr. Stott coming onto the hood”, others testified that Mr. Stott “jumped onto the hood”.

I turn now to the aggravating and mitigating factors, which I must consider.

The aggravating factors include:

1. Mr. Heffernan admittedly got into a verbal confrontation with Mr. Stott at the laneway, in which their voices were raised. The loss of emotional self-control by a driver while at the wheel of a motorized vehicle is a very dangerous mix.
2. There was some aggressive driving behavior by Mr. Heffernan immediately before that which constitutes the offence, in the movement of his car toward Mr. Stott.
3. Mr. Heffernan would have appreciated that driving down the laneway with Mr. Stott on the hood of his car posed a risk of at least injury to Mr. Stott, but nonetheless he chose to drive at a speed in excess of 40 kilometers per hour.
4. Rather than stopping once he knew that Mr. Stott had come off the hood of the car and was at least injured, Mr. Heffernan continued driving to another location in the plaza.
5. The impact of Mr. Stott’s death on members of his family is significant. In particular, his partner has been left to manage as a single parent. Two young children will grow up without a father.
6. Mr. Heffernan is not a first offender, although his prior criminal record is unrelated and relatively minor.

The mitigating factors include:

1. Mr. Heffernan pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offence. I find that the fact there was a preliminary hearing does not detract from the mitigating effect of the guilty plea in this case. The preliminary hearing enabled the parties to reach agreement about resolving a serious case without a trial.
2. Mr. Heffernan apologized to Mr. Stott’s family in court and expressed his remorse, which I accept is sincere.
3. Very soon after the events in the laneway, Mr. Heffernan called 911 and summoned help.
4. He remained at the plaza until the police arrived and did not leave in an attempt to avoid legal consequences.
5. The offence was out of character for him.
6. He has a strong family support, his rehabilitative prospects are good, and specific deterrence is not a concern.

This is a very serious offence that had catastrophic consequences. It did not involve the consumption of alcohol or drugs, multiple deaths, racing, reckless driving for a lengthy period of time, a lengthy criminal record, a bad driving record, flight from the police or leaving the scene of the accident. It did, however, involve a conscious decision on Mr. Heffernan’s part. He chose to drive his vehicle, reaching a speed of 43 to 48 kilometers per hour, knowing that Mr. Stott was on its hood. While Mr. Heffernan did not intend to cause Mr. Stott’s death, the potential for serious harm to Mr. Stott was obvious in the circumstances. Mr. Heffernan’s moral blameworthiness is significant.

As in Nusrat, the objectives of general deterrence and denunciation must be paramount in this case. I do not ignore, however, the need to encourage Mr. Heffernan’s rehabilitation, or the fact that this will be a first jail sentence for him.

Conclusion

Mr. Heffernan, please stand. I sentence you to three years in jail, less credit of three months for pre-sentencing custody, leaving a sentence to be served of 33 months in the penitentiary.

I make a DNA order, a s. 109 (2)(a) order for 10 years and a s. 109(2)(b) order for life.

I appreciate that your bail conditions have prohibited you from driving for almost two years. I impose now a driving prohibition order for eight years.

You are to pay the applicable victim surcharge within six months.

I recommend that the correctional authorities consider you for placement in a minimum security institution.

You may be seated.

THE COURT: Is there anything that requires clarification, Ms. Hull, Ms. Ross, Mr. Robichaud?

MR. ROBICHAUD: I don’t believe so, Your Honour. Thank you.

THE COURT: From the Crown?

MS. HULL: No. Thank you.

THE COURT: Thank you. Could I have the indictment, please? I have endorsed, “Mr. Heffernan is sentenced to three years in the penitentiary, less three months credit for pre-sentencing custody, leaving a sentence to be served of 33 months in jail. There is a s. 109(2)(a) order for ten years, a s. 109(2)(b) order for life, and a DNA order. A driving prohibition for eight years is made. The victim surcharge is ordered with six months to pay. I recommend placement in a minimum security institution.” That will be endorsed on the Warrant of Committal as well. Anything further?

MR. ROBICHAUD: No, Your Honour. I wonder if it would be too much to ask for a copy of that endorsement at the end of the proceedings today?

THE COURT: Yes.

MR. ROBICHAUD: Thank you very much.

THE COURT: That’s fine. All right, anything further from the Crown?

MS. HULL: No, thank you, Your Honour.

MATTER CONCLUDED.

Certification

FORM 2

Certificate of Transcript Evidence Act, Subsection 5(2)

I, AMANDA WALKER, certify that this document is a true and accurate transcription of the recording of R v. Jason Heffernan, in the Superior Court of Justice, held at Barrie, Ontario taken from Recording No. 3811_03_20180807_091235__30_FUERSTM.dcr, heard Tuesday, August 7th, 2018, which has been certified in Form 1 by C. Pollard.

(Date) (Signature of Authorized Person)