COURT FILE NO.: CR 16-0501 DATE: 20181204 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MICHAEL CANAVAN

Counsel: M. Dolby, for the Crown P. Ducharme, for the Defendant

Heard: October 11, 2018

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER s.486.4 OF THE CRIMINAL CODE BY ORDER OF TZIMAS J. DATED JANUARY 29, 2018

Tzimas J.

Reasons for Sentencing

Introduction

[1] On July 4, 2018, Michael Canavan was found guilty of one count of impaired driving causing death, contrary to subsection 255(3) of the Criminal Code of Canada, two counts of impaired driving causing bodily harm, contrary to subsection 255(2) of the Criminal Code, and one count of operating a motor vehicle with a blood alcohol level over 80mg of alcohol per 100 ml of blood, contrary to subsection 253(1)(b) of the Criminal Code.

[2] My complete findings were outlined in my Reasons for Judgment, in R. v. Canavan, 2018 ONSC 4171. I do not propose to repeat them in any detail other than to make reference to the key findings relevant to set the context for my conclusions on Mr. Canavan’s sentencing.

[3] Sentencing submissions were made on October 11, 2018. In those submissions, the Crown proposed an incarceration term in the range of seven to nine years as well as a twelve year driving prohibition. Defence counsel proposed a term of three to four years. Counsel distinguished the facts in this instance from the facts in the cases with the high ranges. The Court received a Pre-sentencing report for Mr. Canavan, 56 letters of reference for Mr. Canavan, and victim impact statements from Mr. Robin Bye, Alexa Bye and Meghan Culver.

[4] For the reasons that follow, I have concluded that an appropriate sentence for Mr. Canavan is 5 and a half years in the penitentiary, concurrent on each count and a driving prohibition of 10 years in addition to the jail sentence. Mr. Canavan shall also provide a DNA sample. Finally, I have recommended that Mr. Canavan be offered the benefit of counselling while in the penitentiary.

Facts of the Offence

[5] The violent head-on motor vehicle collision accident that resulted in Mr. Canavan’s conviction occurred on the night of June 12, 2015 at 10:35 pm. Mr. Canavan was driving his Volkswagen northbound on Trafalgar Road at 30-40 km above the speed limit. He should have been driving in the northbound lane but at some point, he crossed into the southbound lane and struck a vehicle that was going southbound. That vehicle was being driven by Mrs. Janice Bye. The collision was so pronounced that the licence plate number of Mr. Canavan’s vehicle was seared onto the front bumper of Mrs. Bye’s vehicle.

[6] Mrs. Bye was 47 years old and died instantaneously. In addition to her daughter, she left behind her partner of over 30 years, Mr. Robin Bye, and her 14 year old son.

[7] Mrs. Bye’s daughter, Alexa Sara Bye, 18 years old, and Meghan Culver, also 18 years old, who was Alexa’s friend and who was 22 weeks pregnant, were passengers in Mrs. Bye’s vehicle. They both suffered serious injuries that required them to have multiple surgeries. Both have been affected physically, emotionally and financially. Their lives will never be the same.

[8] Mr. Canavan was also injured in the collision. He was trapped in his vehicle for almost an hour. He was extricated from his vehicle at about 11:34 p.m. and moved into an ambulance on a backboard. Mr. Canavan told the first responders and the doctor at emergency that he had consumed three Tall Boys earlier in the evening and was coming from a hockey game.

[9] While at the hospital the medical staff took samples of Mr. Canavan’s blood for medical purposes. The police also administered a breath test. The results of those tests revealed a blood alcohol concentration, (BAC) in the range of 124-150 mg / 100ml.

[10] Mr. Canavan was found guilty of all counts against him following a 6-day trial. In my reasons for judgment, I found that Mr. Canavan was impaired, that his BAC exceeded 80 mg, and that it was his impaired ability to operate a vehicle that caused the death of Janice Bye and the bodily harm to Alexa Bye and Meghan Culver.

Circumstances of the Offender

[11] The court received a Pre-Sentencing Report dated September 19, 2018. Mr. Canavan is a 51 year-old married man who has one adult son and two adult step children. Mr. Canavan’s heritage is Irish, Scottish and Mohawk. Although he has Indigenous Status and has a Status Card, he confirmed to the court through his counsel that he did not participate in any indigenous practices or communities and he did not request or submit a Gladue Report.

[12] Mr. Canavan has very strong relationships with his current wife, his son, his step children, his mother, his extended family, and the many hockey players he has coached over the years. His childhood was difficult. Apart from being one of five children being raised by a single mother, he also had various learning disabilities that went undiagnosed. He completed grade 8 but thereafter struggled to complete high school. He attended a vocational high school for a period of time but was eventually expelled. He spent a year and a half in the Canadian Armed Forces before he had to accept an honourable discharge as a result of a scoliosis diagnosis.

[13] Following that experience and for the next 20 years he worked in waterjet cutting. In the past eight years he and his brother have been operating RMC Waterjet Cutting Services Inc. The business has been very successful, supporting 8 employees, which include, Mr. Canavan, his brother, his wife and his father. Mr. Canavan was reported to work at least 60 hours a week and often on weekends.

[14] With respect to his contributions to the community, Mr. Canavan has been defined by his love for hockey and hockey coaching. Apart from playing hockey from the age of four, he has coached hundreds of players for over 23 years. In most instances, the players came from families with limited means. A number of the hockey players he coached went on to obtain hockey scholarships in the United States. They attributed their success to Mr. Canavan’s mentoring. In addition, over the years, he and his wife have cared for rescue dogs. In the past, Mr. Canavan took care of Great Danes.

[15] Mr. Canavan has had to deal with certain medical difficulties associated with his spine. He had surgery 12 years ago and he is dealing with ongoing issues, including pain that is related to his condition. He also has permanent damage to his ankle from his accident.

[16] Mr. Canavan did not deny that he pled guilty to an impaired charge in 1990. He said that he had a difficult time transitioning from the Canadian Armed Forces back to civilian life and “drank a bit then”. After his son’s birth, his son became his single most important focus and he did not drink. In the recent years he would drink up to 6 bottles of beer on weekends.

[17] I note that in 1991 he was convicted of driving while being disqualified, contrary to section 259(4) of the Criminal Code. In 2000, he was charged with assault, contrary to section 267(b) of the Criminal Code and received a suspended sentence and probation of one year. He also has had 18 speeding convictions in the recent years.

[18] With respect to the accident, Mr. Canavan reported that he felt very bad for the two individuals who were injured and for Mrs. Bye, who lost her life. He said that it was difficult waiting for his case to go through the court system and that he has had trouble sleeping. However, it was also reported that he denied responsibility. In his statement to the court at the conclusion of the sentencing submissions, Mr. Canavan explained that he could not assume responsibility because to that date he could not recall what actually happened. However, he said he was deeply sorry and turned to the members of the Bye family who were in court and apologized.

[19] The 56 letters of reference that were filed with the court and that were written by immediate family members, friends, and members of the hockey community, were uniformly positive. Nobody attempted to understate Mr. Canavan’s moral blameworthiness of his actions. What they did do is highlight Mr. Canavan’s many positive qualities. The emerging uniform theme was of an individual who is, a good man, caring, community-oriented, a loyal friend, hardworking, dedicated to his family, very compassionate and who sought to do right by others.

Impact of the Offences

[20] The Court received victim impact statements from Alexa Bye, Robin Bye and Megan Culver. Mr. Bye offered a very extensive description of the devastating impact of this accident on his family. He spoke about Janice as a mother, a wife and a professional. He described Janice as a very sweet, kind, respectful, open-hearted, loving, cheerful, positive and hardworking person. She held down two jobs. Her work with children with disabilities allowed her to make a difference to the lives of many children. Most significantly she was a wife and a mother and she meant the world to them.

[21] With respect to the accident, Mr. Bye described the profound and unimaginable challenges of having to deal with the immediate aftermath of the accident, of losing his wife, of simultaneously having to support his injured daughter in the hospital, and of having to break the news to his young son. He also outlined his emotions: exhausted because of his efforts to hold it all together and do everything he can so that he does not let Janice down; deeply saddened by the loss of Janice, the circumstances of her death and the loss to his children; disappointed by the lengthy court process; angry at the offender’s selfish and the “stupid reason” for the accident; scared for the future as that relates to his daughter’s well-being and his son’s ability to cope without his mom; and frustrated by the fact that nobody can really understand his daughter’s pain.

[22] Alexa Bye’s statement described the physical, mental and emotional effects of the accident on her life. She also gave extensive insight into her mother, who she described as her best friend. The injuries she sustained required her to go through four surgeries, spending over 61 days in the hospital. Her life will never be the same.

[23] Alexa also commented on the impact of the accident on her young brother and her father, describing the latter as heart-broken. She talked about her own child being deprived of ever knowing a grandmother. Although her own husband has stuck by her during the past three years, Alexa explained that their relationship has been impacted in that there are many activities they hoped to pursue that they will not be able to accomplish. Finally she spoke of a constant sense of uncertainty of the future challenges they might face as a result of her difficulties.

[24] Megan described June 12 as the night that changed her life in a very dramatic way and a mother’s worst nightmare. Apart from her own very extensive injuries, she was 21 weeks pregnant and panicked over the well-being of her baby. She described the list of her injuries as being so many that she was unable to understand it all. In the first while, she was so bandaged up, her family could not recognize her. She had a crushed shoulder, a shattered chest, a lacerated kidney and a lacerated spleen. Because of her pregnancy she could only be medicated with regular strength Tylenol. To make matters worse, she contracted an infection while in hospital that required her to be kept in isolation. Her agony was compounded by the fear over her son’s health.

[25] Megan also described the effects of the accident on her mental well-being, the constant nightmares, the lasting effects on her mobility and the effects on her son’s birth. She outlined the many challenges to his birth and the immediate health issues he encountered, likely connected to the difficulties that originated in the accident and Megan’s internal bleeding. The baby’s premature birth was said to be related to her intrauterine growth restrictions, caused by her injuries.

[26] Finally, Megan described the financial impact of the accident. She talked about the long distances she has to travel for physiotherapy and numerous medical appointments, her inability to return to work after the accident, her inability to breastfeed her child and therefore the need to purchase formula. In short, in addition to her physical and emotional challenges, Megan has had to cope with serious economic hardship.

Position of the Parties

The Crown

[27] The Crown sought a penitentiary sentence in the range of 7 to 9 years, to be followed by a 12 year driving prohibition, having regard for the fact that Mr. Canavan has been restricted in his driving for the past 3 years.

[28] The Crown filed a Notice of Application for Increased Penalty on account of Mr. Canavan’s past conviction for impaired driving and his unenviable driving record that included 18 speeding convictions.

[29] The Crown acknowledged the positive PSR and the letters of reference in support of Mr. Canavan but expressed concerns that he did not demonstrate any insight into the problems related to drinking and driving. Counsel submitted that general deterrence had to be the main consideration in the fixing of an appropriate sentence and noted that in her review of the case law it was evident that since 2010 the terms started at four years and had increased very significantly. Counsel also noted that drinking and driving remains a very serious problem in the country and that it was therefore necessary to send a strong message.

[30] In terms of the mitigating and aggravating factors, counsel submitted that the most pronounced aggravating factors rested with the loss of Janice Bye’s life and the injuries to Alexa and Meghan. The PSR was certainly a mitigating factor, especially given Mr. Canavan’s contribution to society and the mentoring of so many students. Having gone through with a trial, though not an aggravating factor, Mr. Canavan could not gain the benefit of a mitigating factor that a guilty plea would have provided him. Finally, counsel submitted that Mr. Canavan’s own injury was a mitigating factor.

[31] In support of her position counsel put before the court a number of cases that ranged in incarceration terms of four to eleven years. Those cases are listed in Schedule “A” to these reasons.

The Defence

[32] Defence counsel accepted that the sentence ranges have increased in recent years and suggested an appropriate range in this instance would be three to four years in the penitentiary. He explained that Mr. Canavan has accepted the decision and has learned his lesson. Moreover, he tried to clarify that what Mr. Canavan tried to tell the author of the PSR was that he could not take responsibility for the accident because he could not remember what happened. It was not the case that he was not remorseful; Mr. Canavan felt “absolutely sorry” for what happened to the Bye family and to Ms. Culver. Counsel said that Mr. Canavan has wanted to express his sorrow and apology to the victims but that the terms of his recognizance prevented him from having any contact with them.

[33] Counsel did not dispute the overriding objective was general deterrence but he urged the court to consider Mr. Canavan’s mitigating factors. He highlighted Mr. Canavan’s multiple contributions to society, the positive difference he has made to the lives of hockey players, making it possible for a number of them to pursue hockey scholarships in the United States.

[34] Finally, counsel filed a number of cases for the court’s consideration, which are also listed in Schedule “A” to these reasons, and sought to distinguish those cases filed by the Crown in support of penitentiary terms of seven years and higher.

Analysis

[35] The task before me is to impose a sentence on an offender who on the one hand has made a positive difference to the lives of many individuals, often against incredible odds, but who made a very serious error on the evening of June 12, 2015 that resulted in the commission of a serious crime with profoundly tragic consequences. For all the positive differences that Mr. Canavan has made to peoples’ lives, in this instance, his driving while impaired eliminated the life of Janice Bye, caused permanent physical and emotional injuries to two 18 year olds who had their lives ahead of them, left a fourteen year old without his mother, and a heartbroken husband with his partner of 30 years.

[36] The task is not an easy one. Identifying an appropriate sentence is anything but an exact science. It requires me to exercise my judicial discretion having regard for the need to satisfy the purposes of sentencing. Unlike Mr. Canavan’s attitude in life of “let’s fix it and make it better”, the exercise of my discretion will not make things better. The profoundly harsh reality is that no matter what the sentence, it will not bring back Mrs. Bye, and it will not restore the health of Alexa, Meghan and their families.

[37] In R. v. M. (C.A.), [1996] 1 S.C.R. 500 at paragraph 91, the Supreme Court of Canada explained one of the trial judge’s obligations in the following terms:

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[38] In addition to those requirements, to underscore the challenges, I adopt the three limitations to sentencing outlined by Boswell J. in R. v. Fracasse 2017 ONSC 28 at paragraph 36:

(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with; ( 2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code, and that it be fit for purpose – neither too lenient nor too harsh – in order to maintain the confidence of the broader public; and

(3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.

[39] These limitations put into context Justice Wagner’s recognition in R. v. Lacasse, 2015 SCC 64 that “sentencing remains one of the most delicate stages of the criminal justice process in Canada”. This is especially the case in an instance such as the one before me when an otherwise valuable and loved member of the community, who also had to overcome significant adversity in his own life, commits a serious crime with horrible consequences. This was expressly recognized in R. v. McVeigh (1985), 22 C.C.C. (3d) 145.

[40] That challenge cannot eclipse the need to denounce drinking and driving and to convey the unquestionable imperative to understand that impaired driving has serious, even if unintended, consequences and that it will be met with a substantial sentence in pursuit of the goal of deterrence. Those objectives must adhere to the sentencing principles of the Criminal Code.

[41] Specifically, section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:

718 The fundamental purpose of sentencing 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 and the harm done to victims or to the community that is caused by 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, and acknowledgment of the harm done to victims or to the community.

[42] Further, s. 718.1 of the Criminal Code provides that:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[43] In the context of impaired driving convictions, general deterrence and denunciation are the predominant concerns. It is well recognized that the community demands that courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals, see R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970. That said, the sentencing process, as mandated by section 718 of the Criminal Code is not just about the offence but also about the offender.

[44] This brings me to a consideration of the aggravating and mitigating factors applicable to Mr. Canavan’s circumstances.

[45] Beginning with the aggravating factors I find the following:

a. The offences were horrible. Mrs. Bye lost her life in her prime. She was a spouse, a mother, and an accomplished professional. She was just about to experience the joy of seeing her first-born go off to college. She had no chance to react to Mr. Canavan coming at her in his car. All of a sudden she was dead.

b. Alexa and Meghan were barely young adults with their lives and ambitions ahead of them. Hopefully, they will find new paths to have some joys in their lives but they should never have had to do so with the permanent effects that the accident has had. The same holds true for Mr. Bye and his son.

c. Mr. Canavan’s level of intoxication was significant.

d. Mr. Canavan’s driving record is also problematic. Although his impaired charge is from 28 years ago, such that I would not be inclined to increase the penalty very substantially, that combined with the 18 speeding convictions is an aggravating consideration. The record is also unsettling because it puts Mr. Canavan’s credibility into further question given his testimony in his trial that he was sensitive and aware of the risks of speeding and would not have been speeding on the night of the accident.

e. In the same vein, my finding that Mr. Canavan was driving at 30-40 km above the speed limit at the time of the collision is a further aggravating factor which contributed to the violent nature of the head-on impact.

[46] With respect to the mitigating factors, I find the following:

a. Mr. Canavan has a very positive PSR. It is evident that he has had to overcome many obstacles in his own life and has done what he can to make a difference to the lives of countless individuals.

b. The 56 letters of reference are significant for the consistency in their portrayal of a community-oriented and good individual. By and large, it is evident that Mr. Canavan is a good man who has been a mentor, a source of inspiration, and a support to his family, his colleagues and to the hockey players he has coached.

c. I am prepared to give Mr. Canavan the benefit of the doubt to his expression of remorse, in light of his counsel’s submission that he has accepted the result of the trial, that he feels “absolutely sorry”, and given Mr. Canavan’s personal apology to the Bye family right in the courtroom at the conclusion of the sentencing submissions. I am satisfied that the apology was sincere.

d. Mr. Canavan did not have any difficulties with alcohol consumption.

e. Mr. Canavan respected the terms of his Recognizance which included a driving prohibition.

[47] Insofar as specific deterrence is concerned, Mr. Canavan’s injuries to himself and his knowledge that he took away the life of one individual and compromised the lives of Alexa, Meghan, and so many others related to these primary victims, is sufficient to find specific deterrence. The distress and disappointment that he has caused to his own family and friends, which was palpable in the courtroom only compounds that deterrence.

[48] Mr. Canavan does not get the benefit that he would otherwise receive had he taken responsibility for the accident, pleaded guilty and foregone a 6 day trial. To be clear, his choice to proceed with the trial, and his explanation for not being able to take responsibility is not an aggravating factor; he was entitled to his day in court.

[49] Turning to my consideration of the appropriate prison term, I acknowledge the numerous cases filed by both parties. Although I have reviewed and considered all of them, in light of the more recent decisions of the Ontario Court of Appeal, I do not find it necessary to review them all. For greater certainty those cases are enumerated in Schedule “A” to these reasons. I note that within those cases, there were numerous references to additional cases, which I also reviewed and considered. Insofar as my global findings are concerned, I highlight the following conclusions that serve to guide the exercise of my discretion.

[50] First, it is generally accepted that there has been an upward trend in prison terms since 2010 and the Ontario Court of Appeal decision in R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970, with four years being, in most instances a point of departure. The Ontario Court of Appeal in R. v. Junkert, 2010 ONCA 549, noted that “the imposition of substantial penalties for drinking and driving sends an important message to individuals who consider driving while they are impaired”.

[51] Second, in the examples that were filed by the Crown, the prison term exceeded seven years in those instances where the offender had a number of pronounced aggravating factors, including warnings not to drive, had extraordinarily high BAC readings, and were driving with excessive speeds. They also involved multiple deaths and catastrophic consequences.

[52] To illustrate this point, in R. v. Kummer, 2011 ONCA 39, the case involved three deaths, 10 charges, speeding through an intersection at 83 km, a BAC at two times the legal limit and a previous conviction in the preceding 1.5 years. In R. v. Muzzo, 2016 ONSC 2068, the offender took the lives of 4 individuals, three of them children, his BAC was estimated to be three times the legal limit and he was exhibiting exaggerated symptoms of impaired behaviour. These fact patterns and the facts in a number of other cases filed by the Crown are distinguishable from the facts in Mr. Canavan’s case.

[53] Third, in some cases, the court heard specific evidence on the particular community trends and the relationship of those trends to the objective of general deterrence. Lacasse was one such example where the trial judge heard specific evidence and made findings about the frequency of impaired driving in Mr. Lacasse’s community. In this instance, apart from general comments about the ongoing problem with drinking and driving, there was no evidence about any specific problems in Mr. Canavan’s community.

[54] On the issue of the driving prohibition, the defence did not object to the Crown’s request for a 12-year prohibition. In my assessment of this particular issue, I am guided by the considerations outlined by Durno J. in R. v. Bakai, [2010] O.J. No. 6076.

[55] Beginning then with the appropriate prison term, having regard for the combination of Mr. Canavan’s aggravating and mitigating factors, although the aggravating factors are significant, Mr. Canavan’s conduct, both in terms of his speed and his BAC are not in the extreme ranges of either Kummer or Muzzo. His mitigating factors are significant as is his specific deterrence. Together, they are sufficient to move him into the four to six year range, though the aggravating factors place Mr. Canavan at the higher end of that range. Given that balance, I find that an appropriate prison term for Mr. Canavan is five and a half years in the penitentiary.

[56] With respect to the driving prohibition, in addition to the three and a half year prohibition, and having regard for the length of his prison term, it is appropriate that in accordance with section 259 of the Criminal Code, in addition to the jail term, Mr. Canavan be prohibited from driving for an additional 10 years.

[57] Having regard for the recommendations of the PSR and Mr. Canavan’s reported difficulties dealing with the stress of the trial and the tragic circumstances of this accident, I find that he would be an appropriate candidate for counselling. It is highly recommended that he be given the opportunity to take full advantage of counselling support that may be available while he is in the penitentiary.

Conclusion

[58] Given my findings and conclusions, Mr. Canavan is sentenced to 5 and a half years, concurrent on each count, and he is prohibited from driving anywhere in Canada for a period of 10 years in addition to the jail sentence. Finally, Mr. Canavan shall provide a DNA sample.

Tzimas J. Released: December 4, 2018

Schedule A

Crown’s Brief of Authorities

R. v. Kummer, 2011 ONCA 39, [2011] O.J. No. 234 (Ont. C.A.)
R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (S.C.J.)
R. v. Atkinson, [2015] N.B.J. No. 181 (NBCA)
R. v. Purtill, 2013 ONCA 692, [2013] O.J. No. 5136 (Ont. C.A.)
R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 (S.C.C.)
R. v. Scott, [2017] O.J. No. 422 (S.C.J.)
R. v. Wood, 2005 ONCA 459, [2005] O.J. No. 1611 (Ont. C.A.)
R. v. Bush, 2012 ONCA 743, [2012] O.J. No. 5192 (Ont. C.A.)
R. v. Fracassi, [2017] O.J. No. 12 (S.C.J.)

R. v. Canavan, 2018 ONSC 7218

Case Summary