Case Summary

Holden Tim was convicted by a jury of dangerous driving causing death. This decision outlines the reasons for his sentence. The court considered aggravating factors, including excessive speed, dangerous maneuvers, and driving in violation of G2 licence conditions after consuming alcohol. Mitigating factors included his young age (25), lack of prior criminal or driving record, brief duration of dangerous driving, and genuine remorse. The court balanced societal goals of sentencing with the offender's moral blameworthiness and the catastrophic impact on the victim's family. A sentence of two years less a day imprisonment and a five-year driving prohibition was imposed. interesting_citations_summary: > The decision applies principles from R. v. Landry regarding facts essential to a jury's verdict and R. v. Roncaioli on independent factual determination when the verdict basis is unclear. It also references R. v. C.A.M. for the general approach to sentencing and R. v. Laine for comparative sentencing in similar dangerous driving cases, distinguishing it based on the nature of the offence (criminal negligence vs. dangerous driving) and specific aggravating factors. The case highlights the broad range of sentences for dangerous driving causing death and the importance of tailoring sentences to individual circumstances, emphasizing deterrence and rehabilitation for youthful first-time offenders. final_judgement: > Holden Mackenzie Tim was sentenced to two years less a day imprisonment and prohibited from operating a motor vehicle for five years following his release. winning_degree_applicant: 2 winning_degree_respondent: 4 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3768 file_number: "CR-18-14662-00" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3768/2019onsc3768.html" keywords: - sentencing - dangerous driving causing death - criminal law - G2 licence - alcohol consumption - aggravating factors - mitigating factors - deterrence - rehabilitation - victim impact statement areas_of_law: - Criminal Law - Sentencing cited_cases: legislation: - title: "Criminal Code, RSC 1985, c C-46, s 724(2)" url: "https://laws-lois.justice.gc.ca/eng/acts/c-46/" case_law: - title: "R. v. Landry, 2016 NSCA 53" url: "https://www.canlii.org/en/ns/nsca/doc/2016/2016nsca53/2016nsca53.html" - title: "R. v. Roncaioli, 2011 ONCA 378, at para. 59" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca378/2011onca378.html" - title: "R. v. C.A.M., [1996] 1 SCR 500 at para. 91" url: "https://www.canlii.org/en/ca/scc/doc/1996/1996canlii230/1996canlii230.html" - title: "R. v. Laine, 2015 ONCA 519" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca519/2015onca519.html" --- # Court File and Parties **Court File No.:** CR-18-14662-00 **Superior Court of Justice** **Her Majesty the Queen** v. **Holden Mackenzie Tim** --- # Reasons for Sentence **Before The Honourable Justice J. Speyer** **On:** May 3, 2019, at Oshawa, Ontario **Appearances:** D. Parke, Counsel for the Crown D. Embry, Counsel for Holden Tim **Friday, May 3rd, 2019** **Speyer, J. (Orally):** During the early morning hours of July 23rd, 2017, Holden Tim enjoyed a night out at St. Louis Bar and Grill, having a few drinks and participating in the Saturday night karaoke, something he regularly did. He left the bar with a female friend and two other men who were at the bar and who accepted Mr. Tim’s offer to give them a ride home. In a few minutes, lives were forever changed. Duncan King, a passenger in the back of Mr. Tim’s car, was dead. Mr. Tim was charged and has now been convicted by a jury of dangerous driving causing death. Mr. Tim was tried on an indictment that charged him with two offences, impaired driving causing death and dangerous driving causing death. The jury returned a verdict of not guilty to the charge of impaired driving causing death and guilty to the charge of dangerous driving causing death. Section 724(2) of the Criminal Code provides that, where the court is composed of a judge and jury, the sentencing judge shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty, and may find any other relevant fact that was disclosed by the evidence at trial to be proven. Any aggravating facts must be proven by the prosecution beyond a reasonable doubt. The sentencing judge may not find as a fact anything rejected by the jury, see R. v. Landry, 2016 NSCA 53. Where the basis for the jury’s verdict is unclear, I must make my own independent determination of the facts, consistent with the jury’s verdict. See R. v. Roncaioli, 2011 ONCA 378, at para. 59. The facts essential to the jury’s verdict are: 1. That Mr. Tim was operating a motor vehicle. 2. That Mr. Tim operated the vehicle in a manner that was a marked departure from what a reasonable, prudent driver would do in the same circumstances. 3. That Mr. Tim’s operation of the motor vehicle caused Mr. King’s death. Mr. Tim entered the bar at 12:38 a.m. He left the bar at 2:20 a.m. having consumed one and a half devil’s pints, a 24 ounce glass of beer, for a total of about 36 ounces of beer. He also drank three one-ounce shots of liquor. He then drove his car, a Pontiac Grand Prix, with three passengers, a young woman and two men who happened to be at the bar, who accepted Mr. Tim’s offer of a ride home. One of those men was Duncan King. Mr. Tim’s blood alcohol concentration at the material time was between 65 and 110 milligrams of alcohol per 100 millilitres of blood. The evidence of all witnesses who dealt with Mr. Tim after the crash, including the qualified Intoxilyzer technician, testified that Mr. Tim displayed none of the usual signs of impairment. A Smart Serve trained server at the bar, who knew Mr. Tim and dealt with him shortly before he left that bar, did not have any concerns about his ability to drive. Notwithstanding that, I find that a reasonable, prudent driver would not operate a motor vehicle having drank as much alcohol as Mr. Tim did, and that his consumption of alcohol was therefore a contributing factor to his dangerous driving. There was conflicting evidence about Mr. Tim’s driving leading up to the crash. Owen James was the Uber driver who saw the crash. He testified that he was driving a white 2010 Mazda 5 westbound on Rossland Road in the centre lane. He said that traffic was very light and that he was doing about 60 kilometres per hour. He noticed the headlights of another vehicle approaching very fast from behind him. He testified that he stayed in his lane because he did not want to cause any confusion. He estimated the speed of the other vehicle as at least double his speed. There was a minivan ahead of him in the slow lane, going slightly slower than he was. They were on a slight incline at that point. Mr. James testified that the car went by him on his right side and then had to switch lanes back in front of him to go around the minivan. Mr. James said that the car lost control and slid sideways. The driver then tried to correct and slid the other way. The car was in the centre or median lane when it started to slide. It hit the curb, then the grass, became airborne, and hit a tree. All of this happened very quickly. Jason Curlew was the back seat passenger in the Grand Prix. Mr. Curlew said that as they were on a hill on Rossland Road, the car accelerated quite fast. They went up the hill at a high rate of speed. They were in the middle lane. Mr. Curlew saw a white car ahead of them. They caught up to that car quickly and Mr. Tim moved to the right lane. The white car then moved to the right lane and Mr. Tim moved back to the middle lane, and then Mr. Tim lost control of the car. They fishtailed, the back end swung out, the car hit the curb, and they flipped. Mr. Curlew did not feel the car slow down or brake. I do not need to resolve this dispute in the evidence for the purpose of imposing a just sentence. On either version, Mr. Tim was driving at a significantly excessive and dangerous rate of speed. He encountered vehicles that were moving more slowly and instead of slowing down, he attempted to manoeuvre around and pass them in a risky and unsafe manner. In doing so, he lost control of the car. The physical evidence at the crime scene paints a graphic picture of what happened next. The speed limit on Rossland Road, where the crash occurred, is 50 kilometres per hour. The road was dry. Tire markings on the pavement about 94 metres long were left by the skidding or sliding tires of the Grand Prix as it slid sideways. The marks got wider as the vehicle rotated more because more of the tire was going sideways. All four wheels were on the ground until the Grand Prix hit the curb. The tires struck the curb, leaving marks. White markings were made by the undercarriage of the car on the concrete curb and deep furrows were dug in the grass. The vehicle became airborne and crashed into a tree, taking down a large limb. The tread on the tires was good and was not a contributing factor to the crash. Mr. Tim was the holder of a G2 driver’s licence. That licence did not permit him to drive with any alcohol in his system. When he drove away from the bar, he was driving in violation of the conditions of his licence. It was an admitted fact at the trial that Mr. Duncan King died as a direct result of the crash. Arlene King, Duncan King’s wife, has told us that he was an amazing father and friend to so many people. He supported his family financially and Mrs. King lost her home because she could not afford to keep it. She has moved into her mother’s house. She had the terrible responsibility to tell her daughter of her father’s death. She knows that her family will never be the same and that events that otherwise would be special will underscore the loss of Duncan King. Katie White lost her father and his support. She has been seeing a counsellor and a psychiatrist. She has a fear of moving vehicles and suffers from anxiety. She celebrated her 18th birthday the day before her father died and her birthdays will never be the same again. She has suffered financially. She has had to grow up far more quickly than any 18 year old should have to grow up. The victims of Mr. Tim’s reckless driving behaviour extend beyond Mr. King’s immediate family. Mr. Tim’s family has also suffered and will continue to do so. The people who came to the assistance of those involved in the crash, especially the young people, have to live with the awful memory of what they saw and heard. The first responders too are impacted by what happened. Mr. Tim was 25 years old on July 23rd, 2017. He has no criminal record. He has no record of driving offences. He was about to complete a course of study that would qualify him to become a glazier, something he looked forward to very much. Mr. Tim has the support of his mother, and his sister, and aunt. They all describe him as a loyal and dedicated family member, who provided a great deal of support to his sister and her infant children, especially his nephew. He has been gainfully employed as an adult. After he was unable to pursue his career of choice as a glazier, because his release conditions did not permit him to drive, he got a job at Home Depot and is a valued employee there. Crown counsel submits that a sentence of three years’ imprisonment and a five year driving prohibition are required in this case. Defence counsel submits that a sentence of imprisonment in the range of nine to twelve months, together with a driving prohibition in the range of two to five years, is an appropriate sentence. Both counsel have provided me with a number of cases that bear some similarity to the facts of this case, but both counsel also correctly recognize that any sentence must be tailored to the specific circumstances of the individual and his offence. Every situation is different. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. To that end, sanctions for criminal behaviour can denounce criminal conduct, deter it both by deterring the particular offender before the court and by generally deterring others who might choose to do the same thing, separate the offender from society where necessary, foster rehabilitation, and promote a sense of responsibility in offenders. In R. v. C.A.M., [1996] 1 SCR 500 at para. 91 the Supreme Court of Canada described how proper sentences are to be determined. The determination of a just and appropriate sentence is a delicate act 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. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentences must also be similar to sentences imposed on similar offenders, for similar offences, in similar circumstances. The primary objectives in sentencing youthful first time offenders are individual deterrence and rehabilitation. These objectives must be given effect in the context of imposing a sentence that is proportionate to the gravity of the crime and the responsibility of the offender. The range of sentence imposed in cases of dangerous driving causing death is extremely broad. This reflects the fact that the circumstances of these offences and the backgrounds of the offenders vary greatly. Crown counsel argues that the range of sentence generally imposed in cases such as this is between 18 months and three years’ imprisonment. Defence counsel points to cases where sentences as low as nine months’ imprisonment have been imposed in cases of dangerous driving causing death. I will not review the cases cited by counsel at any length. Most are readily distinguishable by the presence in those cases of significant factors not present in this case, such as the presence of prior criminal or driving records, multiple fatalities, professional drivers of commercial vehicles, and/or older offenders. Others of the cases provided to me lacked some of the aggravating factors present in this case, such as the consumption of alcohol before driving, and driving in violation of licensing conditions. Others involved significantly younger offenders. I will briefly refer to one case from the Ontario Court of Appeal that most closely resembles this case. In R. v. Laine, 2015 ONCA 519 the Ontario Court of Appeal considered an appeal by the accused against a sentence of four years’ imprisonment. Mr. Laine was convicted of two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The driving conduct at issue in that case involved driving at a grossly excessive rate of speed, which led to a loss of control on a curve in road. The aberrant driving occurred over a period of not more than two minutes. The resulting crash of the car driven by Mr. Laine into a hydro pole killed two passengers in the car and seriously injured a third. Mr. Laine was 21 years old at the time. He had a G2 licence. He had consumed no alcohol or drugs. He had a minor Highway Traffic Act record. The Court of Appeal intervened and reduced the sentence to one of two years less a day. I do not consider the fact that Mr. Laine was convicted of criminal negligence offences, which are more serious than dangerous driving, to be a meaningful point of distinction. Criminal conduct can lead to convictions for different offences. Sentencing is concerned with responding to the gravity of the offence and the degree of responsibility of the offender. While Mr. Laine’s conduct had more catastrophic consequences than the conduct of Mr. Tim, Mr. Tim was older than Mr. Laine and had consumed alcohol in violation of his G2 driving licence conditions and in an amount that no reasonable and prudent driver would consume, and amounted to a marked departure from what a reasonable, prudent driver would do, albeit not to the point that his ability to operate a motor vehicle was impaired. The aggravating factors present in this case are significant. The consequences of Mr. Tim’s conduct are catastrophic. A man who was loved and valued by his family and friends is dead. The impact on the victims of Mr. Tim’s conduct is significant and enduring. Mr. Tim made several choices that contributed to his creation of a situation of danger. He chose to drive at a dangerous rate of speed. When confronted with slower vehicles, he chose not to slow down. Rather, he chose to engage in a dangerous manoeuvre, that placed other users of the roadway at risk, as well as his own passengers. There is no apparent reason why he did this. Mr. Tim chose to drive in the manner he did, in circumstance where, as the driver, he had taken responsibility for the safety of passengers he invited into his vehicle. Mr. Tim chose to drive when he was, by law, not permitted to drink any alcohol at all before driving. The law relating to novice drivers exists for a good reason. Novice drivers, as inexperienced drivers, must exercise extreme prudence and care to ensure that they are operating their vehicles safely. He chose to flaunt the licensing laws. There are also significant mitigating factors present in this case. Mr. Tim is a young man, 25 years of age when he committed the offence. The course of dangerous driving was relatively brief. He has no prior criminal record or history of driving convictions. Mr. Tim is remorseful. I accept as genuine his expression of remorse that he made when he addressed the court. Mr. Tim did not set out to hurt anyone on July 23rd, 2017. He set out to have a good time with friends. No explanation has been offered for why he chose to engage in a criminally dangerous course of conduct, but he did, and as a result of his decisions and actions, a man died. The sentence to be imposed must reflect the harm done by Mr. Tim. It must serve as a deterrent to others who would drive their vehicles in a criminally dangerous manner, but it must also reflect his moral blameworthiness and the fact that he will be punished for a few minutes of awful behaviour in an otherwise blameless life. He has the potential to return to society and become a responsible member of his community. Mr. Tim, would you please stand up? Mr. Tim, you are sentenced to a period of imprisonment of two years less a day in prison, and you will also be prohibited from operating a motor vehicle for a period of five years following your release from prison. You can sit down, sir.