PETERBOROUGH COURT FILE NO.: CR-19-1519
DATE: 20210611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ASHTON
David Parke, for the Crown
William Caven, for the Defendant
HEARD: May11, 2021
REASONS FOR SENTENCE
LEIBOVICH, J.
Overview
[1] On January 11, 2021, Christopher Ashton pleaded guilty to: 1) operating a motor vehicle with a detectable quantity of methamphetamine in his blood and causing the death of Carolyn Clement, contrary to section 320.14(3) of the Criminal Code of Canada; 2) operating a motor vehicle while prohibited from doing so, contrary to section 320.18(1) of the Criminal Code of Canada and 3) failing to comply with a recognizance of bail, specifically a term that he not operate a motor vehicle, contrary to section 145(3) of the Criminal Code of Canada. Mr. Ashton’s sentencing hearing was heard on May 11, 2021 and the matter was adjourned to ultimately today, June 11th, 2021 for my decision. In the interim I received further sentencing submissions regarding the time Mr. Ashton spent in Alternative Housing. With the consent of the accused the guilty plea, sentencing hearing and today’s sentencing decision have all been heard via zoom. A prior section 8 motion, which was dismissed on October 23, 2020 for reasons set out in R. v. Ashton, 2020 ONSC 6420, was heard live in court.
[2] The Crown seeks a sentence of six years less time served for pre-sentence custody and opposes any enhanced Duncan pre-trial credit. The defence seeks a sentence of four to five years and argues that with pre-sentence custody and Duncan credit, Mr. Ashton should now be released and placed on three years’ probation.
The Facts
Circumstances of the offence
[3] The fatal collision occurred at approximately 4:09 p.m. on Wednesday, March 13, 2019. It took place on Highway 28, south of Apsley in North Kawartha Township. The roadway is a two-lane paved highway. There is one lane for each direction and a solid yellow double centerline. It is a posted 80 km/h zone. Carolyn Clement was driving south on Highway 28, in her Toyota Yaris, coming from her family cottage located south of the Bancroft area. Mr. Ashton was driving northbound when he crossed the double center line causing a head on collision, killing Carolyn Clement who was driving in her own lane. A blood sample was drawn from Mr. Ashton at 6:27 p.m. Toxicological testing determined that the concentration of methamphetamine in this blood sample was 0.46 mg/L.
[4] Based on an examination of Mr. Ashton’s vehicle, in the five seconds prior to the collision, he never engaged the brakes, and his first steering input was 0.5 seconds prior to impact. Mr. Ashton’s move into opposing traffic caused the collision just at the far-right side edge, or the fog-line, of Ms. Clement’s southbound lane.
[5] Methamphetamine is both illegal and dangerous, it has no medical use in Canada. It is a central nervous system stimulant that is abused for its ability to provide a sense of euphoria or energizing effects. The science states that methamphetamine has impairing effects on a person’s ability to drive. Just after consumption, during the “acute stage”, methamphetamine produces euphoria, excitation, rapid flow of ideas, motor restlessness, reduced fatigue, appetite suppression, insomnia, feelings of well-being, poor impulse control, increased risk taking and feelings of confidence. These feelings typically last 4-8 hours but can last up to 12 hours. As drug levels decline, users who experience a “crash phase” can feel hyper somnolence (extreme fatigue), dysphoria, restlessness, agitation, nervousness, paranoia, aggression, delusions, lack of coordination and sleepiness.
[6] In countries like the United States, where low doses of methamphetamine are authorized for medical use, this is typically in the range of 0.02 to 0.05 mg/L. In this case, Mr. Ashton’s blood drug concentration was 0.46 mg/L. This is 9.2 times the therapeutic range in countries where methamphetamine is used for medical purposes.
[7] According to research in the field of impaired driving in Canada, the number of drug-involved driver fatalities now exceeds those involving alcohol. According to this research, the risk of crash involvement for drivers who test positive for amphetamine and methamphetamine is 2.1 to 12.8 times greater than drivers who are alcohol and drug free.
[8] At the time of the collision, Mr. Ashton was subject to a recognizance of bail for outstanding driving offences. On March 3, 2019, Mr. Ashton was released from custody on a recognizance in relation to, amongst other things, charges of operating the same Honda Civic while prohibited. Conditions of that bail included:
a) Do not operate any motor vehicle;
b) Do not occupy the driver’s seat of any motor vehicle; and
c) Do not possess or consume any unlawful drugs or substances as listed in the Controlled Drugs and Substances Act, except with a valid prescription in his name.
[9] Further, the bail order required Mr. Ashton to reside with his surety, Shawna Beamish each and every night. Following the collision, police learned from Ms. Beamish that Mr. Ashton had never once resided at her residence since his release.
[10] At the time of the collision, Mr. Ashton’s G2 driver’s license required that he have an interlock device installed as a result of a 2007 conviction for impaired driving, which he did not. This constitutes a legal restriction imposed under provincial law on his ability to operate a vehicle, arising from a conviction under the Criminal Code. He was also a suspended driver for unpaid fines.
Circumstances of the offender
[11] Mr. Ashton had the following criminal record at the time of the offence:
September 29, 2005: fail to appear, mischief, suspended sentence and six months’ probation; and
March 30, 2007: driving while impaired, $1200 fine.
[12] Mr. Ashton had the following driving record at the time of the offence:
April 11, 2011: operate motor vehicle, no insurance, driving while license suspended;
January 30, 2012: permit use of valtag, not authorized;
October 29, 2012: insufficient lamps, fail to have insurance card, driving while license suspended;
January 21, 2013: no validation on plate; and
October 31, 2013: permit use of valtag, not authorized, driving without a device, driving while license suspended.
[13] Mr. Ashton is 37 years old. He was raised by his mother. His father was not involved. He was born in Etobicoke but raised initially in Brampton. According to the pre-sentence report (PSR), Mr. Ashton had fond memories of his upbringing. He had a close friend and would spend time with him and his family at the friend’s family cottage. Mr. Ashton eventually moved to Bancroft, Ontario, where he met a woman with two children. Mr. Ashton was involved in the children’s lives. The relationship has ended recently while Mr. Ashton has been in custody.
[14] Mr. Ashton graduated high school. He was an average student, but he had no history of behavioural issues at school. Mr. Ashton’s mother said that Mr. Ashton was formerly diagnosed with an auditory memory disability as a youth and as a result struggled in school but that one could not now tell that he had any issues.
[15] Mr. Ashton has a history of maintaining regular employment. He worked in general construction, landscaping, and factory work. Prior to these offences, Mr. Ashton was working with a paper product manufacturing company in Peterborough, Ontario. A colleague described him as “nice”, “upbeat”, hardworking, and a dedicated employee.
[16] Mr. Ashton started experimenting with alcohol around age 16. He enjoyed drinking socially with a friend. He told the PSR writer that he drank to the point of intoxication. He started to use drugs in his 20s and he experimented with cocaine on weekends with friends. Mr. Ashton had a back injury at age 25 and was prescribed opiate medication. He became dependent on opiates and started to purchase drugs on the street. He used OxyContin and Heroin. Mr. Ashton said that his use became so severe that he required to use each day in order to diminish withdrawal symptoms and chronic pain. When he was in his 30s, Mr. Ashton sought out methadone maintenance therapy to get his opiate use under control. It worked, but then Mr. Ashton wanted to taper-off of methadone. He then started using both methadone and crystal methamphetamine simultaneously, as he found the latter helped him go without methadone.
[17] Mr. Ashton has not sought out addictions counselling or treatment. He told the PSR author that he needed to attend a drug treatment program. While in custody he has been sober and even though he has been exposed to drugs, he has stayed away from them.
[18] The PSR author found that Mr. Ashton was genuine, honest, and remorseful for his actions. The author stated:
The subject was interviewed at the Central East Correctional Centre for his Pre-Sentence Report Interview. The subject presented as very conscientious and engaged in his interview. The subject struck me as someone with a genuine demeanor and presented as honest and straightforward during his interview. When reviewing the offence and death of the identified victim the subject had an emotional breakdown and at several points expressed his remorse and regret. The subject advised he continues to think about the victim and her family. The subject advised “I think about this all the time” and he will wake up in custody realizing his reality. The subject wished to express to the victim’s family: “I want them to know I am very sorry. If I could take it back I would… I’m very sorry.”
[19] The author noted that:
The subject presents as empathetic and considerate of the associated pain and burden his actions have placed on the identified victims and those around him. There is a notable discrepancy and disconnect between the subject’s favourable character attitude and his actions taken in his criminal offending. This is difficult to reconcile when considering his demonstrated defiance of Court restrictions.
Impact on the Victim
[20] Members of the victim’s family read their impact statements at the sentencing hearing. They described their loss and sadness from Carolyn Clement’s death. It was evident that Mrs. Clement was a loved wife, mother and grandmother and the head of a close family. She left behind a husband, three children and their spouses and five grandchildren. As mentioned, she died returning from the family cottage. Eleven family members were at the cottage. By all accounts, it was a wonderful day that ended in tragedy.
[21] Carolyn Clement was also a vital member of the community and was a nurse for over 45 years. As her son wrote:
Throughout her life and career she constantly reached out to help others. As a volunteer with the crisis center in Peel my mother provided support to people who were dealing with personal crises ranging from mental health issues to addiction issues, to domestic violence. As an employee of the department of veterans affairs, and the community care access center, she did her best to ensure that the people who she was involved with had the support that they needed in their life. She always sided with the underdog, people who were overwhelmed, stretched, and trying hard to find their place in life…
[22] According to the impact statements, the family has struggled to recover from their loss. Mrs. Clement’s daughter-in-law wrote:
Since March 2019, I have watched Carolyn's family deteriorate. I have watched Carolyn's husband, daughter and sons sink into depression. I have watched them abuse alcohol to numb the pain of their loss. I have wrapped my arms around them while they cried themselves to sleep. Carolyn was the glue that held our family together and now that glue is gone. Frequent family dinners and get togethers have ceased. Rooms filled with laughter have been replaced with tension and sadness.
[23] Mr. Ashton spoke at his sentencing hearing. He took full responsibility. He was ashamed and remorseful. He stated that he will never commit an offence like this and will do what he has to reintegrate into society. He is sorry for the Clement family and hopes that they get through this.
Time spent in custody
[24] Mr. Ashton provided an affidavit describing the time he has spent in pre-sentence custody.
[25] He stated that as a result of the collision, he suffered a fracture to his L3 vertebrae in his spine. As a result, from March 14 to April 16, 2019, the first 34 days of his incarceration, he was held in a form of segregation. He had to use a wheelchair for the first three weeks, after which he was able to move about with the assistance of a walker. He stated that for these 34 days, he was placed in a solitary cell with nothing more than a bed and a toilet. He was not allowed out of his cell at any point. This was not a medical segregation. He had no contact with a doctor, but he had contact with a nurse twice a day when he was given his medication. He was allowed to go to the yard every two or three days but could not because of his injuries.
[26] According to Sheena Nesbitt, Manager, Security and Investigations #6226, Central East Correctional Centre, Mr. Ashton was in the unit for medical reasons. She stated that inmates in that unit are offered a shower every second day and that they are offered 20 minutes of yard time a day. In addition, during this period, Mr. Ashton was at court for nine days: March 19, 20, 21, 22, 25, 28, 29, April 1, and 3rd.
[27] A report from Central East Correctional Centre was filed. It states that Mr. Ashton had 161 full lockdown days and 12 partial lockdown days while incarcerated. Mr. Ashton stated in his affidavit that prior to the onset of the COVID-19 pandemic, his range would be subject to periodic lockdowns. During the lockdowns, he was supposed to still be allowed out of his cell for 20 minutes in order to shower and have access to the phone. However, that would not occur if there were not enough staff on hand to supervise inmates for those 20-minute periods. On those occasions when there were not enough staff on hand, they would not be allowed out of their cells at all during a lockdown. This happened during 25% of the lockdowns, or 40 of the 173 times he was subject to lockdowns. He stated that since the COVID-19 pandemic in March 2020, the frequency of lockdowns has increased. He stated that:
I am aware of two reasons for this. First, if an inmate on my range began to show symptoms of COVID-19, they would be tested to determine whether they were infected with the disease. When this happened, the entire range would be locked down until the test results came back. This would typically take four to five days, during which times we would be completely confined to our cells and not allowed out to shower or use the phones. I can recall several times that this occurred and I was confined to my cell for four to five days. Indeed, even before the onset of the pandemic, there were several occasions I can recall being confined to my cell on lockdown for multiple days at a time. The other issue that caused an increase in the number of lockdowns was insufficient staffing at CECC. The lockdown report prepared by Ms. Nesbitt shows that for the eleven month period between April 22, 2019, and March 19, 2020, I was locked down sixty-seven times. For the period from March 19, 2020, to April 26, 2021, I was locked down one hundred and three times. This confirms the number of lockdowns at CECC increased significantly during the COVID-19 pandemic.
[28] He stated that since being incarcerated, his mental health has deteriorated and that he suffered from anxiety. He was prescribed medication and he found that it controlled his anxiety symptoms.
Mitigating and Aggravating Factors
[29] The following factors are mitigating:
a. Mr. Ashton has pleaded guilty and is genuinely remorseful for his actions;
b. He has a pro-social history in that he has a history of employment as an adult;
c. While he has a criminal record, it contains a gap of over 12 years;
d. He has the support of family and friends; and
e. He is committed to dealing with his addiction issues.
[30] The following factors are aggravating:
a. Mr. Ashton was a suspended driver at the time and he was prohibited under provincial law from operating a motor vehicle;
b. Mr. Ashton has a prior record for impaired driving;
c. Mr. Ashton has prior Highway Traffic Act offences for driving while suspended;
d. Mr. Ashton was just released on bail ten days earlier with a condition that he not drive and not consume any drugs; and
e. The victim’s death has devastated her family. Their pain is palpable.
Law and Analysis
[31] This case raises two issues:
What is the appropriate sentence for Mr. Ashton?; and
What credit, if any, should Mr. Ashton receive, apart from the traditional 1.5 credit, for pre-sentence custody?
What is the appropriate sentence for Mr. Ashton?
[32] The Crown submits that Mr. Ashton should receive a total sentence of six years for his offences. The Crown submits that given his prior record of impaired and his driving prohibitions, a six-year sentence is light. The defence submits that a sentence of four to five years is appropriate, given his guilty plea, genuine remorse, and his commitment to get his addiction under control. As mentioned earlier, counsel’s ultimate position is that after the determination of the appropriate sentence and the deduction of pre-sentence credit, Mr. Ashton should be released and placed on three years probation.
[33] In sentencing Mr. Ashton, I am guided by s. 718 of the Criminal Code, which describes the purpose of sentencing:
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.
[34] With respect to the offence of impaired driving, s. 320.22(g) deems the following to be an aggravating factor for the purposes of sentencing:
the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
[35] There is no dispute among the parties that when sentencing for these types of offences, the critical objectives are deterrence and denunciation. 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. General deterrence is particularly important in these cases because they are committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties. As stated by Brown J.A. for the majority in R. v. Altiman, [2019] OJ No 3216, 2019 ONCA 511, at para. 48:
The sentencing objectives of deterrence and denunciation are particularly relevant to impaired driving offences, which often are committed by ordinarily law-abiding people: Lacasse, at para. 73; Ramage, at paras. 74-75.
[36] Section 718.1 of the Criminal Code, requires that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to ensure this, courts look to sentences given in other cases. The parity principle, which is required by s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. Both counsel have pointed to other sentencing decisions in support of their respective positions.
[37] The sentences for impaired driving causing death has increased over the past 20 years: R. v. Altiman, at para. 51; R. v. Fracassi, 2017 ONSC 28, at paras. 40 and 41. The reason why was succinctly stated by Boswell J. in R. v. Fracassi, at para. 54:
The reality is that the message about the dangers of impaired driving has been repeated, loudly and clearly, for decades now. For those who continue to ignore a message they have heard for most of their lives, moral blameworthiness is increased, just as societal tolerance is decreased.
[38] In R. v. Altiman, Brown J.A. stated at para. 70 that his review of the case law shows that the range for impaired cause death cases where the offender does not have a prior criminal or driving offence record is four to six years, but that:
Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years.
[39] Brown J.A. then stated at para. 71 that:
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, at para. 40.
[40] Counsel for Mr. Ashton has properly stated that there is no one right sentence for a particular offence; R. v. Wiggins, 2021 CarswellOnt 382. I agree. Sentencing is an individualized process and the sentencing ranges that I have just discussed are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57:
Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
Also See: R. v. Friesen, 2020 SCC 9, at para. 9, R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44.
[41] The range described above has developed largely in the context of individuals who are impaired by alcohol. There is no logical reason, (and to be clear, counsel does not suggest that there is), to treat cases where an accused person drives with a prohibited amount of a drug and causes death any differently. Both types of drivers pose the same risk to the safety of the public. The Criminal Code provides that in each case an offender can receive a maximum penalty of life imprisonment.
[42] Furthermore, in this case, the Crown has filed expert evidence regarding the perils of driving while under the influence of drugs. Dr. Beirness, wrote in his report about the rising problem of driving and drugs. He stated:
The use of drugs by drivers has become an issue of increasing concern in Canada. Since 2000, the percentage of fatally injured drivers in Canada who tested positive for at least one psychoactive substance has increased from 34.4% in 2000 to 51.6% in 2016. A large portion of this increase can be attributed to the increased rate of testing for drugs - from 37% in 2000 to 84% in 2016. The most commonly detected substances were cannabis, depressants (e.g., benzodiazepines) and central nervous system stimulants (e.g., cocaine, methamphetamine) (Brown et al., 2019).
Data on driver fatalities in Ontario from 2016 through 2018 indicate that over half (54%) tested positive for alcohol and/or drugs (Beirness et al., 2020a). Drugs were detected in 43% of cases; alcohol was present in 26.1%. Among cases that tested positive for alcohol or drugs, 44% had more than one type of substance in their body. Cannabis was the most frequently detected substance (27%) followed by stimulants (13%), opioids (6.6%) and depressants (5.5%). Methamphetamine (a stimulant) was found in 4% of cases.
[43] Dr. Beirness also talked about the difficulties in identifying drivers impaired by drugs. He stated:
In many respects, however, compared to identifying drivers impaired by alcohol, detecting drug-impaired drivers presents a series of additional challenges. For example, breath testing for alcohol has been commonplace in Canada since its introduction in 1969; roadside alcohol screening has been used since the mid-1970s. In contrast, most drugs of interest cannot be readily detected or measured in breath and require more complex and time-consuming procedures to collect and analyze samples of blood, urine or oral fluid.
[44] In some sense, the danger produced by mixing drugs and driving is even more pronounced given that others may not recognize the signs that the person is impaired by drugs. It is difficult to stop a friend from driving under the influence of drugs when you cannot recognize the signs. As Dr. Beirness stated:
In addition, whereas the physical manifestations of alcohol intoxication are commonly known and are widely well-recognized as such, this is not necessarily the case with drug effects. The effects of many drugs can be very different from those of alcohol and the effects of different types of drugs can also vary widely. These effects may not be well-known by members of the general population or police officers who have not been trained as DREs or who lack extensive experience with persons who use drugs. There is no standard symptomatology or set of indicia that is common among persons who are impaired by drugs. Each category of drugs has its own spectrum of effects.
[45] Again, the courts need to denounce this behaviour to stop like minded individuals from mixing driving and drugs.
[46] The Crown relies on the range set out in the Court of Appeal’s decision in R. v. Altiman in support of its position that a six-year sentence is merited.
[47] In addition, the Crown has relied on the following cases:
R. v. Poisson, 2019 ONSC 3554 – Mr. Poisson was found guilty of impaired operation causing death. While driving on a rural road, he veered 107 metres off the road to the right, hitting an embankment on the edge of a creek. There was a serious impact on the victim’s family. Mr. Poisson was young, 19 years old, with no criminal record. A five-year jail sentence and seven-year driving prohibition was imposed.
R. v. Fracassi – Mr. Fracassi was found guilty of impaired cause death and impaired cause bodily harm. He struck a road maintenance crew repainting lines at the side of the road. One worker was killed, and one suffered serious injuries. He was asleep at the wheel, did not brake or steer to avoid the crew, he did not stop and kept driving home. He had a high blood alcohol level and a driving record. He had no criminal record, was remorseful, had family and community support and suffered from undiagnosed alcoholism at the time of the offence. A jail sentence of six years and a seven-year driving prohibition was imposed.
R. v. Fallows, 2017 ONSC 7786 – Mr. Fallows was found guilty of criminal negligence cause death and impaired cause death after trial. His blood alcohol concentration was between 198-226. He had a prior over 80 conviction. He had no license or insurance. He was sentenced to nine years and a 12-year driving prohibition.
[48] The following are some of the cases relied upon by the defence in support of their position:
R. v. Wiggins - Mr. Wiggins killed his best friend when he drove with between 212-283 milligrams per 100 millilitres of blood. He had no criminal record, but had some provincial traffic offences. He was described as a hard working man with community and family support and a son. He suffered from physical and psychological disability from the collision. He suffered from severe depression and severe anxiety. Duncan J. imposed a four-year sentence. He said that:
I conclude that these unique circumstances and times should be reflected in the sentence imposed. While the aggravating and mitigating circumstances of this case - weighed and considered in light of the principles and ranges set by the Court of Appeal and compared to the sentences imposed in other similar cases - would otherwise lead me to impose a sentence of five years, it is my view that a fit sentence for this individual at this time is one of four years imprisonment.
R. v. Walker, 2014 ONCA 919 – Mr. Walker lost control of his vehicle due to being drunk and travelling too fast. His best friend was in the car and killed. He pleaded guilty, was 24 years old, had no criminal record, cooperated with authorities. His remorse was genuine. He had made efforts at rehabilitation. The victim’s family was forgiving. A sentence of three years in custody and a 10-year driving prohibition was imposed.
R. v. Morin-Leblanc, 2014 ONSC 2056 – Mr. Morin-Leblanc was convicted of impaired driving causing death, criminal negligence causing death, and failure to provide a breath sample. He drunkenly drove his vehicle wrong way down a one-way street, struck and killed the victim as she crossed an intersection. He was 28 years old, had no criminal record, attended university, was remorseful, had 21 positive letters of support, and attended psychotherapy sessions. The global sentence imposed was four years.
R. v. Cook, 2012 ONSC 3265 – Mr. Cook was found guilty after a 44-day trial for impaired driving causing death, over 80, and drive while disqualified. After consuming alcohol, Mr. Cook drove a snowmobile, crashed into a tree and killed his 15-year-old passenger. He had significantly elevated blood alcohol readings, and a prior criminal record, including driving and alcohol-related offences. He was relatively young and had a young family. He received a total sentence of four and ½ years.
R. v. Courneya, 2018 ONCJ 380 – Mr. Courneya drove into oncoming traffic, striking the victim’s car and killing him instantly. Witnesses noted his driving had been “atrocious”. Mr. Courneya had a high BAC readings and a traffic record with nine speeding offences. He had no criminal record, pled guilty, was remorseful and had strong family support. A joint submission of four and a half years was accepted.
[49] Having regard to all the mitigating and aggravating factors, in my view, Mr. Ashton should receive a sentence of six years. I accept that Mr. Ashton is genuinely remorseful for his actions and he is haunted by them. I also accept that he finally realizes that he needs help for his addiction. It is also obvious that he clearly did not set out on March 13th to kill Carolyn Clement. But that is not a unique factor, and as similarly said by the Court of Appeal in R. v. McVeigh, (1985) 1985 CanLII 115 (ON CA), 11 O.A.C. 345 at para. 12, over 30 years ago, “No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking.”
[50] Mr. Ashton’s actions carry a high degree of moral blameworthiness. He never should have been driving that day, or any day, let alone driving with methamphetamine in his system. Ten days before the collision, Mr. Ashton was released on bail. He was told not to drive and not to consume illicit drugs. He ignored both aspects of the court order, consumed drugs, drove and killed Mrs. Clement. Furthermore, irrespective of his bail restrictions, Mr. Ashton did not have a valid driving license and was not allowed to drive, period. In addition, this was not the first time that Mr. Ashton had driven despite not having a valid driver’s license. He has numerous convictions for driving while suspended. Mr. Ashton has acted as if he has a right to drive. He does not. Driving is a privilege, and he lost his many years ago. Finally, this is not Mr. Ashton’s first time driving while impaired. He was convicted for impaired driving in 2007. And as a result of that conviction Mr. Ashton was required to have an interlock mechanism installed in his car, which he did not do. I am startled by how many different ways Mr. Ashton was told that he was not allowed to drive, yet he did it anyway.
[51] In this case, Mr. Ashton was driving a car with a detectable quantity of methamphetamine in his blood and causing the death of Carolyn Clement. It is illegal to possess methamphetamine in Canada. It is illegal to drive with any amount in your system. It is a very simple law to follow. In this case, Mr. Ashton had nine times the therapeutic amount of methamphetamine that is seen in countries which allow the use of the drug on a limited basis. I wish to be clear; one can not equate having nine times the therapeutic amount of methamphetamine as being nine times over the legal alcohol limit. As counsel for Mr. Ashton said its not an “apples to apples” situation. My point is simply that he had a significant amount in his system.
[52] Mr. Ashton’s actions did not just rob the world of Carolyn Clement, but he devastated her family. Its been over two years since the fatal day and they are still broken.
[53] I agree with Defence Counsel that Mr. Ashton has otherwise led a pro-social life. He has been able to obtain and maintain employment and is a good worker. He has family and friends. But there is a huge disconnect between that Mr. Ashton and the one who despite myriads of orders and restrictions drove with methamphetamine in his blood and killed Ms. Clement. But for his guilty plea, genuine remorse, and other mitigating factors, a higher sentence would be merited.
[54] COVID-19 is a factor that can be considered as a collateral consequence for Mr. Ashton going forward: R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978, at paras. 9-12. The pandemic is not over, and while, at the time of this writing, the third wave has ended, vaccinations have increased and the amount of cases has dropped significantly, Central East Correctional Centre has been faced with a significant outbreak. It is to be expected that Mr. Ashton’s incarceration will be difficult as restrictions will remain in place, at least in the short term. A court can consider collateral consequences, but collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Suter, at para. 56. Furthermore, I have not been provided with any evidence that Mr. Ashton has a particular vulnerability to the virus; R. v. Larivière, [2020] O.J. No. 2264 at para. 6. That being said, I am prepared to reduce Mr. Ashton’s sentence by 60 days, as requested by Counsel for Mr. Ashton, in this regard. The parole board will be better situated to take into account the affects of the pandemic. As noted by the Court of Appeal in R. v. Morgan at, para. 12:
That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.
[55] Therefore, in my view, an appropriate sentence is six years, less 60 days, for Mr. Ashton.
- How much credit should Mr. Ashton receive for time spent in pre-sentence custody?
[56] As of May 11, 2021, Mr. Ashton had been in pre-sentence custody 791 days. However, on July 18, 2019, he pleaded guilty to other offences and used 41 days of that time towards the satisfaction of that sentence. Therefore, on these sets of offences, Mr. Ashton has been in custody for 749 days up to May 11, 2021 and 780 days to today. There is no dispute that Mr. Ashton is entitled to receive credit of 1.5 days for that time, which amounts to 1170 days.
[57] The rationale for providing such credit was set out by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 at para. 22:
Courts generally gave enhanced credit in recognition of the fact that "in two respects, pretrial custody is even more onerous than post-sentencing custody" (Rezaie, at p. 721). As Laskin J.A. explained:
First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial.
[58] The dispute at this sentencing hearing is what, if any, Duncan credit should Mr. Ashton receive. Counsel for Mr. Ashton is seeking 25 months of Duncan credit, explained in his written submissions as follows:
Mr. Ashton therefore respectfully submits that a fair consideration of his harsh presentence conditions should be as follows:
For 34 days spent in segregation – two months’ credit against sentence;
For 173 days spent in lockdown – nine months’ credit against sentence;
For approximately 14 months in custody during COVID-19 pandemic (pandemic emergency declared on March 19, 2020) – 14 months credit against sentence.
[59] The Crown has provided lengthy submissions regarding why it asserts that the Court of Appeal’s decision in R. v. Duncan, 2016 ONCA 754 is inconsistent with the Criminal Code of Canada and the Supreme Court of Canada’s decision in R. v. Summers. While the Crown understands that I am bound by the Court of Appeal, it still asks that I comment about the inconsistency. The Crown further submits that Mr. Ashton has not provided sufficient information regarding the effects of the lockdown on him and thus should be given limited extra credit for the pre-sentence conditions. I understand that the Crown is simply preserving its position for possible future arguments at the Court of Appeal in this or another case. However, I do not comment on decisions of the Court of Appeal. Rather, I apply them to the cases before me. I am bound by the Court of Appeal’s decision in R. v. Duncan and I will apply it.
How does Duncan credit work?
[60] In R. v. Duncan, the Ontario Court of Appeal found that additional credit can be given to an accused, at sentencing, for particularly harsh presentence incarceration conditions. The Court stated at para. 6:
We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.
[61] More recently, the Court of Appeal reiterated in R. v. Rajmoolie, 2020 ONCA 791, at para. 14 that “Duncan does not mandate a second level of credit for pre-sentence custody. Rather, it confirms that there is no cap on the 1.5 days of credit that can be given for pre-sentence custody. A higher credit may be given for “particularly harsh” conditions.”
[62] An accused must show that he suffered particularly harsh pre-sentence conditions and that these conditions had an adverse effect on him. As stated by the Court of Appeal in R. v. Omoragbon, 2020 ONCA 336 at para. 32.
Enhanced credit for lockdown days is neither an entitlement nor routinely granted upon the filing of institutional records. In the absence of evidence of any adverse effect of the lockdown conditions on the appellant, enhanced credit is not warranted: R. v. Duncan, 2016 ONCA 754, at paras. 6-7.
[63] There is no one formula or approach to determining credit for particularly harsh conditions: R. v. Kizir, [2018] O.J. No. 5127, 2018 ONCA 781, at para. 15. A review of past cases shows many different approaches. For example:
In R. v. Inniss, 2017 ONSC 2779 a one-year reduction in sentence was given for approximately one year of lockdowns;
In R. v. Persad, 2020 ONSC 188 1.5 days credit was given for each day spent in lockdown. In this case, the court emphasized that the increased credit was to reflect persistent problems with lockdowns at the Toronto South Detection Centre which had not been addressed;
In R. v. Studd, 2020 ONSC 2810 189 days credit was given for 198 lockdown days and there was a four-month reduction in the sentence for COVID-19;
In R. v. M.W., 2020 ONSC 3513 three months credit was given for 29 days locked down and pre-sentence COVID factors;
In R. v. Tsegazab, 2020 ONSC 7708 201 days credit was given for 198 days of full and partial lockdowns, in addition to one day credit given for every day in custody since the onset of the pandemic (275 days);
In R. v. Omoragbon, the Court of Appeal stated that the trial judge gave .36 years credit for 113 days in lockdown;
In R. v. Prince, 2020 ONSC 6121 a further credit of 16 months was given for 321 days of lockdown, and to take into account the COVID-19 pandemic;
In R. v. Illunga, 2021 ONSC 265 a credit of 20 days was given for the hardship suffered during 42.5 days of lockdown;
In R. v. McNichols, 2020 ONSC 6499, the trial judge gave two months’ credit for approximately 200 lockdown days; and
In R. v. Nazir, 2020 ONSC 4991, the trial judge gave 75 days credit for 381 lockdown days.
[64] The different approaches taken do not mean that the cases are inconsistent with each other, but rather is a reflection of the myriad of considerations that go into deciding the issue and the nature of the evidence led at the hearing, both with respect to the conditions themselves and the adverse effect on the particular accused. Serving pre-sentence custody during the COVID-19 pandemic can result in particularly harsh pre-sentence conditions because it might result in more lockdowns, as seen here for example, or might have an otherwise adverse effect on an accused. Again, it depends on the nature of the evidence led at the hearing.
Should Mr. Ashton receive additional credit?
Time Spent in Lockdown and COVID
[65] Counsel for Mr. Ashton is seeking, in essence, 1.5 days for every day spent in lockdown and an additional day for every day spent in pre-sentence custody during the pandemic. Therefore, Counsel for Mr. Ashton is seeking an additional 2.5 days credit for every day spent in lockdown during the pandemic. I do agree that it is appropriate to give some credit for time spent in pre-sentence custody under these harsh conditions, but not to the degree sought.
[66] The overwhelming reason provided by Central East Correctional Centre for the 173 days Mr. Ashton spent in lockdown was because of staff shortages. 161 of those days were full lockdowns. There were six occasions where the lockdown was for COVID precautionary measures and there are a few miscellaneous reasons provided. There is no question that the staff shortages increased during the COVID pandemic, but they existed beforehand as well.
[67] I have been provided with no reasons or explanation for the pre-COVID-19 pandemic staff shortages. While it is expected that there may be occasions where there are staff shortages resulting in a periodic lockdown, “we should not simply normalize unacceptable conditions in a jail”: R. v. Jama, 2018 ONSC 1252, per Goldstein J. Furthermore, in reviewing the information from Central East Correctional Centre, it is evident that on the majority of the occasions there were lockdowns that lasted more than one day and sometimes up to four days in a row, and on one occasion, five days in a row. These block periods clearly compounded the negative effects of the lockdowns.
[68] As stated, the accused must provide evidence of the adverse effects on him. The evidence is thin in this regard, in that his evidence describes the conditions but not the affect on him. That being said, Mr. Ashton stated that while in custody his mental health has deteriorated, and that it was after six months, he started to develop symptoms of anxiety for which he now takes medication, which has helped. Mr. Ashton did not specifically tie his anxiety to the lockdowns. However, the six-month mark for Mr. Ashton was August 2019. A review of the documentation shows that there were 13 lockdown days that month, the most of any month apart from February 2021, which also had 13 days. It makes sense that his feelings of anxiety would coincide with the repeated lockdowns. Mr. Ashton also described being locked down for multiple days in a row. As stated, my review shows that there were multiple incidents of these block down periods. In my view, it would be consistent with the Court of Appeal’s pronouncements in R. v. Omoragbon, that I provide additional credit of one day for, what I would call these block periods of lockdown. They amount to 100 days[^1].
[69] Counsel for Mr. Ashton has also requested an additional credit for spending time in custody during the COVID-19 pandemic. He asks for 14 months to cover the time period from the start of the pandemic in March 2020. I would not grant that request. In this case, while perhaps understandable given the need to keep the pandemic under control, the COVID-19 pandemic resulted in an increase in lockdowns. Mr. Ashton’s affidavit does set out the pandemic concerns regarding the lockdown, but I have already given credit for those lockdowns and it makes no sense to double count.
[70] In some cases, serving pre-sentence custody during the pandemic may result in other harsh conditions, apart from lockdowns, that have had an adverse effect on the accused. One such case is R. v. Tsegazab, which is relied upon by Counsel for Mr. Ashton. In that case, apart from increased lockdowns and loss of visitations, evidence was filed from Mr. Tsegazab that he had asthma and suffered increase stress that due to his asthma he might get COVID-19 as well as a concern regarding the health care he would receive if he did get the virus.
[71] Counsel for Mr. Ashton submitted that there is a greater risk of transmission in jail and that the inmates cannot protect themselves or socially distant. However, Mr. Ashton’s affidavit does not describe any concerns in that regard. Again, the Court of Appeal requires there to be evidence of adverse effects. In addition, for the 6 months preceding his sentencing hearing Mr. Ashton did not have a cell mate. Mr. Ashton’s affidavit has set out an additional consequence and effect of the pandemic. He stated:
While I was in custody prior to the COVID-19 pandemic, I used to get visitors at CECC on a regular basis. My mother Leeann Scott, her husband, a few of my friends from work, and Shawna and her children, would all come to visit me approximately once a month.
However, since the onset of the COVID-19 pandemic in March 2020, I would only get visits about once every three months. The last time I had a visitor was around Christmas time, 2020, when Shawna and her children came to visit.
[72] I appreciate that Mr. Ashton did not see Shawna and her children because they have broken up. I also appreciate that we have all been limited in who we have seen during the pandemic. However, it is different being in jail and not having received a visitor for six months. I am prepared to give the respondent 60 days credit in this regard.
The 34 days in Alternative Housing
[73] Counsel for Mr. Ashton has asked for two months credit for the 34 days he spent in Alternative Housing. The Crown has submitted that no credit should be given, that Mr. Ashton has attempted to mislead the court and that this should affect his overall credibility in assessing his request for Duncan credit. The Crown has pointed to the inconsistencies between Mr. Ashton’s affidavit and the email provided by Sheena Nesbitt with an emphasis on the fact that Mr. Ashton did not mention that he attended court 9 times during this time.
[74] I do not accept the Crown’s submissions that Mr. Ashton has attempted to mislead the court in his description of the conditions of the Alternative Housing. I do not see the omissions of the 9 court dates, if they were live appearances in court as opposed to video remand, as glaring errors. I agree with defence counsel’s submissions in this regard:
The COVID-19 pandemic has made consultation with counsel very difficult. The accused did not keep records of his incarceration in March-April 2019, as it could not have been foreseen that he would be in this situation today, having to fight tooth and nail over credit to be granted for 34 out of now-over 800 days he has spent in custody. The accused has done his best to recall the circumstances from more than two years ago of the first 34 days he spent in jail on these charges.
[75] The emails from Ms. Nesbitt are hearsay and are admissible at sentencing and certain aspects of them are reliable, such as her information that Mr. Ashton had 9 court appearances. Furthermore, her information that Mr. Ashton was placed in Alternative Housing for medical reasons seems to be based on checks that she made of Mr. Ashton’s file. It also makes sense that he was there for medical reasons given that according to Mr. Ashton’s affidavit, as a result of the collision he fractured a L3 vertebrae in his spine and was confined to a wheelchair. He also states that he was seen by a nurse twice a day. In addition, Mr. Ashton’s exit from the unit seems to coincide with his improved health as by the fourth week he was able to walk with a cane.
[76] However, I am unsure if Ms. Nesbitt’s description of the conditions are descriptors of the conditions in that unit today or when Mr. Ashton was there. She wrote:
I can tell you that clients in this unit are offered showers every other day, they are offered a minimum of 20 minutes in the yard for fresh air every day. Staff check on them every 20 minutes at which time he could ask for assistance and/or engage in conversation, and staff give them their meals 3 times every day. They are offered to book a time to use the phone every day. They also can order canteen. They are also offered programs and library and chaplaincy services.
[77] Unlike the case of R. v. Roberts, 2018 ONSC 4566, this was a short period of segregation. In addition, Mr. Ashton’s placement in the unit and inability to use the offered yard time because of his injury, stemmed from the collision that he caused; R. v. Suter, at paras 49 and 50. I also agree that Mr. Ashton’s affidavit is light regarding the adverse affects on him of this short period of time, where he was recovering from his injury. That being said, I am prepared to provide some credit to Mr. Ashton as his description of the conditions he faced were particularly harsh and at odds with what the conditions should be, as described by Ms. Nesbitt. I will provide 17 days of credit.
[78] Therefore, Mr. Ashton is entitled to pre-sentence credit in the amount of 1170 days, plus 100 days, plus 60 days, plus 17 days for a total of 1347 days.
Ancillary Orders
[79] Mr. Ashton has been convicted of a primary designated offence and thus will be subject to a mandatory DNA order.
[80] With respect to a driving prohibition order, given the recent changes to the Criminal Code, such an order is in effect at the time it is made: s. 320.24(5.1). The Crown is seeking the equivalent of a 15-year driving prohibition order from the time Mr. Ashton is released from jail. The defence submits that a 10-year prohibition order is appropriate. In my view, again, while each case has to be decided on its own, the length of driving prohibitions given in other cases is more in align with defence counsel’s submission of 10 years. Given that Mr. Ashton will have a remnant of over two years to serve in his sentence, I will impose a driving prohibition of 12 years.
Conclusion
[81] Mr. Ashton shall therefore be sentenced as follows:
Count 1: Six years, less 60 days, less 1347 days, for a remnant of two years and 53 days;
Count 2: one year concurrent;
Count 3: one year concurrent; and
A DNA sample will be taken, and a 12-year driving prohibition will be imposed.
The Honourable Justice H. Leibovich
Released: June 11, 2021
PETERBOROUGH COURT FILE NO.: CR-19-1519
DATE: 20210611
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ASHTON
REASONS FOR SENTENCE
Justice H. Leibovich
Released: June 11, 2021
[^1]: June 8-9/2019, June 21-24/2019, July 11-14, 2019, July 19-21, 2019, Aug. 2-4, 2019, Aug 10-11, 2019, Aug 16-Aug 18, 2019, Aug 22-25, 2019, Oct. 5-6, 2019, Oct.18-19, 2019, Oct. 26-27, 2019, Nov 1-3, 2019, Jan 11-12, 2020. Jan 17-19, 2020, Mar 28-29, 2020, Jun 18-21, 2020, July 2-3, 2020, Jul 16-17, 2020, July 23-24, 2020, Aug 11-12, 2020, Aug 23-24, 2020, Aug 26-28, 2020, Sept 18-20, 2020, Sept 25-27, 2020, Oct 22-23, 2020, Nov 14-15, 2020, Dec 10-11, 2020, Dec 13-14, 2020, Dec 19-20, 2020, Dec 22-23, 2020, Dec 26-28, 2020, Jan 30-31, 2021, Feb 6-9, 2021, Feb 12-16, 2021, March 6-7, 2021, March 19-21, 2021, April 10-12, 2021, April 17-18, 2021.