Court File and Parties

COURT FILE NO.: CR-18-50000654-0000 DATE: 20190712

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SAMANTHA BROWN

Counsel: V. Culp, for the Crown J. Goldlist, for Ms. Brown

HEARD: February 5, June 4, 2019

Reasons for Sentence

SCHRECK J.:

[1] Edith Brezina was an 87-year-old mother and grandmother who, despite her advanced years, was in generally good health and active in her community. She enjoyed spending time with her children and grandchildren. She was an advocate for the hard-of-hearing and provided support to seniors in her community who were unable to leave their homes.

[2] On January 7, 2018, Mrs. Brezina spent the afternoon celebrating her daughter’s birthday. At around the same time, 28-year-old Samantha Brown was consuming alcohol and a variety of drugs, including cocaine and methamphetamine. Ms. Brown had a history of substance abuse issues. Her addiction issues had resulted in a prior conviction for impaired driving and she was on bail on further charges of impaired driving, possession of controlled substances for the purpose of trafficking, failing to remain at the scene of an accident, and failing to comply with court orders.

[3] Mrs. Brezina’s and Ms. Brown’s paths crossed at around 6:16 p.m. when Mrs. Brezina was driving westbound on Eglinton Avenue West in her Honda Civic. Despite having no driver’s licence and being prohibited by her bail conditions from driving, Ms. Brown, who was intoxicated by the alcohol and drugs she had recently consumed, was driving in the opposite direction on the same street in a Toyota Highlander. Suddenly, Ms. Brown’s vehicle crossed into the westbound lane and her vehicle collided with Mrs. Brezina’s. This happened so fast that Mrs. Brezina did not have time to apply the brakes, as was later revealed by the crash data retrieval imaging. She died instantly as a result of injuries from the impact.

[4] Ms. Brown was charged with a number of offences as a result of the collision and has pleaded guilty to impaired driving causing death (Count 1), failing to comply with a recognizance (Count 4) and possession of cocaine (Count 6). She is before the court for sentencing. The following reasons explain the sentence that will be imposed.

I. Facts

A. The Offences

(i) Impaired Driving Causing Death

[5] At the time of the collision, Ms. Brown had a blood alcohol concentration (“BAC”) of between 35 and 68 mg of alcohol per 100 ml. of blood. Blood tests revealed the presence of methamphetamine and cocaine in amounts consistent with recreational use. Prior to the collision, she had been observed stopped in the middle of an intersection for several minutes. Witnesses saw her shaking and moving back and forth in the driver’s seat. She then drove off at a high rate of speed. A number of people called 911 to report what they had seen.

(ii) Fail to Comply With Recognizance

[6] At the time of the collision, Ms. Brown was on bail in relation to outstanding charges of impaired driving, possession of controlled substances and failing to comply with a recognizance. One of the conditions of her bail was that she was not to operate a motor vehicle.

(iii) Possession of Cocaine

[7] When the police arrived after the collision, they observed two open bottles of alcohol in the cup holders of the Toyota Highlander. Oxycodone, marijuana and hypodermic needles were found in the vehicle. Methamphetamine, cocaine, fentanyl, ketamine and marijuana were found on Ms. Brown’s person.

B. Victim Impact

[8] Victim Impact Statements (“VIS”) were prepared by Mrs. Brezina’s son, Alfred Brezina, and her daughter, Peggy Allen. Both describe the feelings of loss and devastation that they have suffered as a result of the death of their mother. Ms. Allen described the relationship her mother had with her granddaughters. She described the wonderful afternoon she had spent with her mother to celebrate her birthday, not knowing that it was the last time she would see her. At the end of his VIS, Mr. Brezina wrote “Although my statement ends here, it is not over, for I will continue to miss her, and forever wonder what shared experiences the lost years would still have given us all.”

C. The Offender

(i) Background

[9] A pre-sentence report (“PSR”) was prepared and neither party takes issue with the accuracy of the information contained in it.

[10] Ms. Brown was born in Oakville, the only child of her parents, who were married at the time. When she was a year old, she was sent to live with her grandparents as her parents apparently could not afford to look after her. She returned to live with her parents when she was five years old. Ms. Brown lived in Ontario and British Columbia during her childhood. She completed high school and then enrolled in an Adult Learning Centre to upgrade her education when she was 18 years old.

[11] While at the Adult Learning Centre, Ms. Brown became romantically involved with a man and began to live with him when she 20. This was her first relationship. The man was physically abusive to Ms. Brown and socially isolated her. Her boyfriend used cocaine and Ms. Brown began to use it as well. She also began to abuse alcohol. She finally ended the relationship after a couple of years and went to live with her father, who had by then become divorced from her mother.

[12] Ms. Brown became involved with another man when she was 26 or 27 years old. He was also physically abusive. As well, he was a drug trafficker. While with him, Ms. Brown began to frequently use a variety of drugs, including crystal methamphetamine.

[13] Ms. Brown appears to have a steady employment history except for when she was involved in relationships with the abusive men, both of whom did not want her to work. She has held a variety of jobs and also learned how to be a truck mechanic.

[14] Ms. Brown has been in custody since her arrest in January 2018. While in custody, she has been employed in the institution’s library and has a completed a number of programs.

[15] Ms. Brown has been diagnosed as suffering from Post-Traumatic Stress Disorder (“PTSD”) resulting from her abusive relationships as well as the automobile collision.

[16] The author of the PSR spoke to a number of Ms. Brown’s friends and members of her family. They uniformly describe her as a kind, caring and hard-working person when she is not abusing drugs. Ms. Brown’s family remains supportive of her and her parents attended the sentencing hearing.

(ii) Other Convictions

[17] Ms. Brown was convicted of impaired driving in July 2015, fined $1400, placed on probation for one year and prohibited from driving for 13 months. At the same time, she was convicted of driving without a licence contrary to the Highway Traffic Act and fined $260. At the time of her arrest on those charges, Ms. Brown had very high BAC readings of 278 and 275 mg of alcohol per 100 ml of blood, over three times the legal limit.

[18] At the time of her sentencing, Ms. Brown had entered into an addiction treatment program and advised the presiding judge that she intends to continue treatment. According to the PSR, Ms. Brown had minimal attendance at the program between July 2015 and February 2016, after which she stopped attending.

[19] In May 2018, Ms. Brown was convicted of failing to attend court and possession of a controlled substance. She was sentenced to imprisonment for one day in addition to 30 days of presentence custody.

[20] In September 2018, Ms. Brown was convicted of two counts of impaired driving, two counts of failing to stop at the scene of an accident, failing to comply with a recognizance, and several counts of possession of controlled substances for the purpose of trafficking. These offences were committed in June and December 2017. She received an effective sentence of imprisonment for 10 ½ months and 12 months of probation, as well as an 18-month driving prohibition.

[21] The last two sets of convictions were after the events giving rise to the charges Ms. Brown is now being sentenced for. As I will explain later, these convictions cannot be considered as a prior criminal record for the purpose of sentencing. However, the fact that she was on bail with respect to these charges at the time she committed the offences she is being sentenced for can be considered and is a significant aggravating factor.

(iii) Indigenous Background

[22] Ms. Brown’s paternal grandmother is half-Métis. Her father was adopted as a child and only became aware of his Métis heritage recently. Ms. Brown travelled to British Columbia about five years ago to meet her biological grandparents. Since her arrest, Ms. Brown has participated in activities for Indigenous inmates while incarcerated.

[23] At the request of counsel, I ordered a Gladue report [1] at the time Ms. Brown entered her pleas. Brittany Wylie, a Gladue worker with Aboriginal Legal Services, was able to confirm that Ms. Brown’s grandmother is a registered member of the Métis Nation of British Columbia but was unable to confirm any other specific details about Ms. Brown’s ancestry. Because of this and because she was unable to address how any Métis ancestry has influenced or affected Ms. Brown, she was unable to prepare a Gladue report. Ms. Wylie was careful to point out that her inability to prepare a report does not mean that Ms. Brown does not have an Indigenous background or that Gladue issues are not relevant in this case. However, I have no evidence before me as to how such issues are relevant.

(iv) Remorse

[24] Ms. Brown addressed the court at her sentencing hearing. She apologized to Mrs. Brezina’s family and expressed remorse for her actions. She also expressed remorse to the author of the PSR. I accept her expressions of remorse as sincere.

II. Positions of the Parties

[25] Crown counsel submits that the appropriate sentence in this case should be one of between six and eight years of imprisonment. She suggests that the higher end of this range is appropriate, given the aggravating factors. She relies on a number of authorities in support of her position: R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Purtill, 2013 ONCA 692, 53 M.V.R. (6th) 22; R. v. Stevens, 2015 ONSC 436, aff’d 2017 ONCA 686, 14 M.V.R. (7th) 1; R. v. Muzzo, 2016 ONSC 2068, 353 C.C.C. (3d) 411; R. v. Fracassi, 2017 ONSC 28, 5 M.V.R. (7th) 219; R. v. Fallows, 2017 ONSC 7786.

[26] Counsel for Ms. Brown submits that four to five years is appropriate and also relies on a number of authorities: R. v. Young, 2010 ONSC 3131, 98 M.V.R. (5th) 217; R. v. Kresko, 2013 ONSC 1631, 42 M.V.R. (6th) 224; R. v. Stewart, 2018 ONCJ 678; R. v. Outifrakh, 2014 ONCJ 589; R. v. Patrick, 2017 BCPC 223, 14 M.V.R. (7th) 70.

III. Analysis

A. Count 1: Impaired Driving Causing Death

(i) Overview of Relevant Principles

[27] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. Section 718.1 provides that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[28] There is a substantial body of appellate jurisprudence stating that in cases of impaired driving, the objectives of deterrence and denunciation are of particular importance: Lacasse, at paras. 73-76. I have some doubt, however, whether a person in the state Ms. Brown was in when she decided to get into a vehicle is likely to turn his or her mind to the potential penal consequences, let alone be deterred by them. I am, however, bound by the cases that require me to give effect to the objective of general deterrence.

[29] Crown counsel submits that I should give less weight to the objective of rehabilitation in this case because Ms. Brown had expressed an intention to seek treatment in the past but did not follow through. That is, of course, troubling. However, as the Ontario Court of Appeal has recognized, “Courts must accept that most hard core addicts who do succeed in overcoming addiction will try and fail a number of times”: R. v. J.H. (1999), 135 C.C.C. (3d) 338 (Ont. C.A.), at para. 23.

[30] Courts should be careful about treating the objective of rehabilitation as somehow beneficial only to the offender. Regardless of what sentence I impose, Ms. Brown will one day be released. If she continues to abuse drugs at that time, she will be a danger to the public. If she is rehabilitated by then, she will likely be a contributing member of society. The primary objective of sentencing is to protect the public. That protection is best accomplished if Ms. Brown is rehabilitated.

(ii) Sentences in Other Cases

[31] Since counsel made their submissions, the Court of Appeal has released its judgment in R. v. Altiman, 2019 ONCA 511. In that case, the Court reviewed a number of authorities, including some of those cited by counsel, and concluded as follow (at paras. 70-71):

This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record. Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years. In Lacasse, a case coming out of Quebec, the Supreme Court upheld a sentence of six and one-half years for impaired driving causing the death of two passengers, even though the offender had been convicted three times for speeding: at para. 80.

While these have been the lengths of sentences imposed in practice by Ontario courts over the past decade, it remains the case that this court has not defined a formal range for such sentences in light of the infinite variety of circumstances in which the offence can be committed: Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para. 40.

[32] Ms. Brown falls into the second category, that is, she is an offender with a prior criminal or driving offence record. I am referring to the impaired driving and Highway Traffic Act convictions from 2015. As noted earlier, the convictions from 2018 post-date the offence. It is well established that before a severer penalty can be imposed for a subsequent offence on the basis of a prior conviction, that offence must have been committed after the prior conviction: R. v. Skolnick, [1982] 2 S.C.R. 47, at pp. 58-59; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 197. Of course, the fact that Ms. Brown was on bail at the time she committed the offence before the court is an aggravating factor.

(iii) Cases Involving Multiple Victims

[33] As noted earlier, the Crown submits that the appropriate sentence is in the six to eight-year range and relies on a number of authorities, many of which were cited by the Court of Appeal in Altiman. Counsel for Ms. Brown seeks to distinguish the cases where sentences in excess of five years were imposed or upheld on the basis that most of those cases involved multiple victims, that is, more than one death or serious injury in addition to a death: Kummer; Lacasse; Purtill; Muzzo; Fracassi.

[34] The number of victims is not relevant to the moral blameworthiness of the offender. Had Ms. Brown been stopped by the police before the collision, she would be no less morally blameworthy. Her moral blameworthiness arises from her decision to drive while intoxicated and thereby create a risk to the public, regardless of whether that risk was actualized. The countless individuals who are found guilty of impaired driving in the Ontario Court of Justice with depressing regularity usually receive fines and not penitentiary sentences. This is not because they are less morally culpable. They are simply more fortunate.

[35] That said, the number of victims is a relevant factor, not because it relates to the moral blameworthiness of the offender, but because it relates to the gravity of the offence. The term “gravity of the offence” describes not only the seriousness of an offence in generic terms as reflected in the maximum available penalty, but also to the extent of the harm caused by the commission of the offence: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 90. A sentence must be proportionate to both the degree of the offender’s responsibility and the gravity of the offence: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 39. That is why s. 463 of the Criminal Code provides that an attempt to commit an offence is punished less severely than the commission of the offence. In sentencing, consequences matter.

[36] While the number of victims is not expressly discussed as a factor in Altiman, that decision nonetheless supports my conclusion. While making it clear that there is no formal range of sentences for impaired driving causing death, the Court noted that sentences typically fall into the four to six-year range unless the offender has a prior criminal or driving offence record. Nonetheless, the offender in Altiman, who had no prior criminal or driving offence record, was given seven years by the majority. The most obvious explanation for this is that he killed two people and seriously injured two others: Altiman, at para. 108.

[37] The number of victims is expressly referred to in many of the cases that the Crown relies on: Kummer, at para. 28; Lacasse, at para. 70; Purtill, at para. 4; Muzzo, at para. 71; Fracassi, at para. 57.

[38] None of this discussion should be taken as suggesting that the consequences of Ms. Brown’s offence were not serious or devastating. They clearly were. A beloved mother, grandmother and friend was killed and those who loved her forever deprived of her companionship. However, I accept that the number of victims is a relevant factor and one which must be considered when comparing this case with those relied on by the Crown.

(iv) Aggravating and Mitigating Factors

[39] There are a number of aggravating factors in this case. While Ms. Brown’s BAC was relatively low, she had ingested a variety of different drugs and was clearly heavily intoxicated. She had a prior conviction for impaired driving. She had no driver’s licence. She was bound by a bail condition prohibiting her from driving. The collision was not due to a momentary lapse but was part of an ongoing pattern of dangerous driving. The impact on the victim’s family and community was devastating.

[40] There are some mitigating factors. Ms. Brown pleaded guilty, which is a demonstration of remorse. As noted, I accept that her expressions of remorse to the court and to the author of the presentence report were sincere. She appears to be motivated to seek treatment and address her addiction issues. She has the support of her family.

[41] As noted, both counsel have provided me with a number of cases. However, each case is unique and the Ontario Court of Appeal has repeatedly declined to define a formal range of sentences for impaired driving causing death: Altiman, at para. 71; Junkert, at para. 40; R. v. Linden (2000), 147 C.C.C. (3d) 299 (Ont. C.A.), at para. 2.

[42] In this case, I must balance the need for deterrence and denunciation with the objective of rehabilitation which, as I stated earlier, is necessary to protect the public. Of course, the extent to which I can promote Ms. Brown’s rehabilitation is limited. I cannot place her on probation, nor do I have any say in which rehabilitative programs will be made available to her in the penitentiary. All I can do is to ensure that whatever sentence I impose is not so crushing that it will impede her rehabilitation: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 29.

[43] I have carefully reviewed all of the circumstances of this case. There is no mathematical formula for determining an appropriate sentence. In my view, the four to five-year sentence proposed by counsel for Ms. Brown would not give sufficient effect to the objectives of denunciation and deterrence. I agree with Crown counsel that the six to eight-year range is appropriate, but disagree that the sentence in this case should fall at the high end of that range. In my view, a sentence at the high end is not necessary to give effect to the objectives of denunciation and deterrence and may impede Ms. Brown’s rehabilitation. In my view, the appropriate sentence in this case is one of imprisonment for six and a half years.

B. Count 4: Failing to Comply With a Recognizance

[44] While sentences for failing to comply with a recognizance are usually made consecutive to the substantive offence that constitutes the breach, in this case the fact that Ms. Brown was on bail at the time she committed the offence of impaired driving causing death was considered as an aggravating factor in determining the appropriate sentence for that offence. Because of this, it is my view that the sentence should be concurrent. Given Ms. Brown’s antecedents, the appropriate sentence for Count 4 is imprisonment for six months, to be served concurrently.

C. Count 6: Possession of Cocaine

[45] As noted, Ms. Brown is an addict. That is the reason why she had cocaine in her possession. In my view, deterrence and denunciation cannot play a significant role in sentencing addicts for simple possession of controlled substances. Fear of imprisonment is not an effective treatment option. The sentence on Count 6 will be imprisonment for one day, to be served concurrently.

D. Pre-Sentence Custody

[46] During submissions on June 4, 2019, I was advised by counsel that Ms. Brown was entitled to credit for 257 days of pre-sentence custody. Although she had been in custody longer than that, some of it had been used in relation to the offences she pleaded guilty to in September 2018. Since then, Ms. Brown has served an additional 38 days, for a total of 295. Counsel agree that she is entitled to credit at a rate of 1.5 to one, which brings the number to 442.5 days, or approximately 15 months. She therefore has 63 months, or five years and three months, left to serve.

E. Driving Prohibition

[47] The driving prohibitions in the cases cited earlier range from five to 12 years, beginning on the date on which sentence was imposed. The Supreme Court of Canada has now made it clear that a driving prohibition ought to commence at the end of any term of imprisonment: Lacasse, at paras. 106-109.

[48] Ms. Brown has a history of not complying with court orders prohibiting her from driving. She committed the offence now before the court at a time when she was bound by a bail condition prohibiting her from driving and when she had no licence. Clearly, unless Ms. Brown completely addresses her substance abuse issues, her presence in the driver’s seat of a vehicle would create a very serious risk to public safety. All of these circumstances require a lengthy driving prohibition. Ms. Brown will be prohibited from operating a motor vehicle anywhere in Canada for a period of five years, beginning at the end of her sentence of imprisonment.

IV. Concluding Remarks

[49] Despite the devastating loss she suffered, Ms. Allen was magnanimous enough to express some hope for Ms. Brown in her VIS. She said: “I hope the death of my mother is your ‘rock bottom’ and you will be motivated by our tragedy to seek help.” I share that hope.

[50] Ms. Brown, as a result of your actions, Mrs. Brezina’s family has lost a much loved mother and grandmother, you have lost your freedom and your family has, in a way, lost you. Very little good can come of this situation. The only glimmer of hope is if you in fact take this opportunity to confront your demons and fully address the substance abuse issues that led you to be where you are today. In the over two decades that I have been involved in the criminal justice system I have seen countless lives destroyed by addiction. Controlling an addiction takes incredible resolve and a lot of effort. Only you can make that effort. I sincerely hope that you do. You owe it to yourself, and you owe it to Mrs. Brezina.

V. Disposition

[51] On Count 1, Ms. Brown is sentenced to imprisonment for five years and three months after being given credit of 15 months for 295 days of pre-sentence custody. As well, there will be an order prohibiting her from operating a motor vehicle anywhere in Canada for a period of five years commencing at the end of her sentence of imprisonment.

[52] On Count 4, she is sentenced to imprisonment for six months, to be served concurrently.

[53] On Count 6, she is sentenced to imprisonment for one day, to be served concurrently.

[54] As Ms. Brown’s DNA is already in the databank, I decline to make an order that she provide a further sample.

Justice P.A. Schreck

Released: July 12, 2019.

COURT FILE NO.: CR-18-50000654-0000 DATE: 20190712 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SAMANTHA BROWN REASONS FOR SENTENCE P.A. Schreck J. Released: July 12, 2019

[1] So called because of the decision in R. v. Gladue, [1999] 1 S.C.R. 688.