COURT FILE NO.: CR-19-021
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT SAUNDERS
Defendant
Monica Heine, for the Crown
Mark Snider, for the Defendant
HEARD: August 4, 2021
REASONS FOR SENTENCE
BEAUDOIN J.
[1] On May 27, 2018, Jeff Vervaeke and Erin Townley were in a group of seven cyclists at the side of the road outside the Town of Bath, Ontario. A member of their group had suffered a possible head injury and they were awaiting the arrival of a support van to retrieve their injured friend. These cyclists were taking part in a bicycle ride called “7 days in May” – a fundraiser for pancreatic cancer. The full details are set out in my decision in R. v. Saunders, 2021 ONSC 3961.
[2] As they stood there, far from the travelled portion of the roadway, Erin Townley heard Fred Roberts scream and she turned to see a car driven by Robert Saunders coming at her at a high rate of speed. She remembers the sound of an impact and then everything went black. When she regained consciousness, she was sitting on the road, cradled by a friend, and holding her bleeding right arm. She was in shock and in pain.
[3] Jeff Vervaeke was struck by the car and was propelled into the air and he landed on the road, face down in a pool of blood. The accident reconstruction expert, Constable J.C. Prent, calculated that the force of the collision threw Jeff Vervaeke’s body a distance of 31.30 metres. While others vainly tried to perform CPR, Jeff Vervaeke did not survive his injuries and he died in hospital on June 1, 2018.
[4] Three years later, on June 1, 2021, I found Robert Saunders guilty of the offences with which he had been charged: one count of dangerous driving causing death, contrary to section 249(4) of the Criminal Code, R.S.C. 1985, c. C-46, and one count of dangerous driving causing bodily harm, contrary to section 249(3) of the Criminal Code.
[5] In convicting Mr. Saunders, I rejected his evidence that the vehicle ahead of him suddenly slowed down, forcing him into a split-second decision to take the shoulder of the road to avoid a collision with an oncoming vehicle in the passing lane or the vehicle in front of him.
[6] I did not find Mr. Saunders to be a credible witness. I was satisfied on all of the evidence that he demonstrated a marked departure from the standard of care a reasonable person would have observed in his circumstances. I rejected the argument that this accident was the result of a momentary lapse in judgment.
[7] I concluded that Mr. Saunders had engaged in a pattern of dangerous driving long before his fatal collision with the cyclists standing at the side of the road. He was driving a vehicle that he had been specifically excluded from operating. His pattern of driving started once he encountered three cyclists as he exited the town of Bath when he ignored their legal entitlement to be on that part of the road. He endangered their lives by passing them well within the distance required by law. They testified about their outrage at his driving and of their alarm at nearly being killed.
[8] Mr. Saunders displayed an alarming lack of attention to his surroundings. He did not notice any of the other 60 cyclists on the road that day. He did not see the construction signs that were present. He did not notice the large orange and black barrels along the road or the signage that required him to reduce his speed. Denis Holden testified that the cyclists could be seen at the side of the road from at least 50 yards away, yet Mr. Saunders never saw them until it was much too late.
[9] I found that Mr. Saunders endangered the lives of others as well, namely by “tailgating” the vehicle ahead of him. Courtney Boomhower testified that the Saunders vehicle kept coming up to the bumper of her vehicle and then backing off. She kept this vehicle under observation as she was concerned for her two-year-old son’s safety in the back seat.
[10] I found that Mr. Saunders drove at an excessive rate of speed. Constable Prent’s evidence that the speed limit was reduced because of the road construction was not contradicted. Mr. Saunders himself admitted that motorists generally drive 55 to 60 km/h at that particular location, yet he admitted travelling at 80 km/h. Mr. Saunders never adjusted his speed having regard to the surrounding circumstances; he was oblivious to them.
[11] Mr. Saunders failed to apply his brakes even though he had ample opportunity to do so. This self-described emergency was entirely of his own creation. He was driving too fast and he was following the vehicle ahead of him too closely. He could not see the cyclists on the side of the road because he was inattentive to his surroundings.
The Applicable Sections of the Criminal Code
[12] Dangerous driving causing death, contrary to the former section 249(4) of the Criminal Code, is punishable by imprisonment for life, and dangerous driving causing bodily harm, contrary to the former section 249(3) of the Criminal Code, is punishable by imprisonment of a maximum of up to 14 years. The Criminal Code allows the Court to impose a driving prohibition for the duration that the court considers appropriate.
The Position of the Crown
[13] On behalf of the Crown, Ms. Heine seeks a term of imprisonment of eight years and a driving prohibition for life. The Crown emphasizes that denunciation and deterrence are the paramount principles to be applied in sentencing Mr. Saunders.
[14] The Crown cites the pre-sentence report (“PSR”) that reveals Mr. Saunders’s lack of insight into his actions that day and argues that he has not demonstrated any real motivation to change. The Crown maintains that Mr. Saunders has failed to show any genuine remorse and has tried to portray himself as the victim of this event. While Mr. Saunders has a dated criminal record, his Ministry of Transportation Record reveals a litany of convictions and discloses that he has been involved in 15 prior collisions, 5 of which involved injuries. The Crown emphasizes that this was not a single act that led to this accident but a pattern of persistent dangerous driving that endangered the life of others that day.
[15] While the tragic outcome of this event plays no part in the determination that Mr. Saunders’s driving was dangerous, it is an important consideration in sentencing. The Crown relies on section 320.22 of the Criminal Code that specifically identifies these as aggravating circumstances for sentencing purposes:
320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:
(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
[16] The Crown acknowledges that Mr. Saunders’s “not guilty” plea is not an aggravating factor but notes that he has not derived the benefit of an early guilty plea. The Crown emphasizes the devastating impact of these events on the victims and their friends and family. Ms. Heine characterizes Mr. Saunders’s lack of remorse as an aggravating factor.
[17] Ms. Heine points to Mr. Saunders’s horrific driving record of 15 accidents, 5 of which resulted in injuries to himself or others.
[18] She notes the case law provides a range of sentences and cites these words taken from para. 12 of Chief Justice Wagner’s judgment in the decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089: “The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”
[19] Ms. Heine also seeks a weapons prohibition order pursuant to section 109 of the Criminal Code for life and a DNA order pursuant to section 487.051(1).
Position of the Defence
[20] On behalf of the Defendant, Mr. Snider acknowledges that a penitentiary term is appropriate in this case, and he maintains that a sentence of two years followed by three years of probation should be imposed. He submits that the Crown’s position on sentencing is far too high in light of the case law. He argues that a period of probation would assist in his client’s rehabilitation. He argues that the ancillary orders sought are discretionary and are neither appropriate nor required in these circumstances.
[21] The Defence underlines the fact that Mr. Saunders’s criminal record is dated. He refers to the impact of this incident on Mr. Saunders’s poor health, the PSR’s conclusion that his client is amenable to counselling and Mr. Saunder’s emotional state when discussing these events. Mr. Snider does not deny the heartbreaking results of this event but he maintains that Mr. Saunders never had any intention to hurt someone and that he did not drive onto the shoulder of the road with any knowledge that someone would be endangered by his actions.
[22] Mr. Snider argues that no minimum sentence is prescribed and that a wide range of sentences are possible. He emphasizes the principles of proportionality and rehabilitation that must be considered when sentencing an offender. He acknowledges that the court must strike a balance between the competing objectives of sentencing set out in the Criminal Code and he maintains that rehabilitation should be at the forefront in Mr. Saunders’s case.
The Victim Impact Statements
[23] Victim impact statements were provided by Erin Townley, Fred Roberts, Hailey Williams, Jason Vervaeke, Jessica Brennan, Kim Carey Williams, Nancy Delsey and Richard Vervaeke. Theses poignant statements remind us of the importance of hearing their voices during a process that has left them marginalized as mute spectators or placed them in the painful position of testifying and of reliving the horror of that day. Their pain was prolonged by the further two years it took to bring this case to trial after Mr. Saunders withdrew an early guilty plea.
[24] Erin Townley continues to suffer from her injuries to this day. Her body bears the scars. Her injuries are unlikely to completely heal. She has been diagnosed with PTSD, anxiety, and depression. She describes herself as a shell of what she once was. She has had to compromise her legal career as she can no longer work the demanding hours of her profession. She has spent thousands of dollars on treatment not covered by insurance or benefits. In a letter she addressed to Mr. Saunders, she expresses her hope that he will learn from his mistakes.
[25] Jeff Vervaeke was a loving son, brother, partner, devoted father, and stepfather. He had many close friends in the cycling community. They all share in Nancy Delsey’s description of her son as “one in a million, he was kind, loyal, genuine, humble, hardworking, loving, caring and admired and loved by many people for many different reasons in so many different ways”. The victim impact statements confirm her view that Jeff Vervaeke had the truly rare gift of making everyone feel important and appreciated. The best evidence of his character can be found in the fact that Jeff Vervaeke would not have been killed had he not stopped to become the seventh member of the group that day. He chose to stay with an injured friend at the side of road.
[26] While this sentencing brings this matter to its legal conclusion, there is no closure for the friends and family of the victims. While their statements, pictures, and drawings will form part of the record of these proceedings, their anguish will continue. While this Court can sanction Mr. Saunders’s conduct, no sentence can erase the past and any sentence imposed can do little to heal his victims.
The Pre-Sentence Reports
[27] There are two pre-sentence reports given that Mr. Saunders had originally plead guilty and was to be sentenced on March 21, 2019. Their content is substantially the same.
[28] Mr. Saunders is described as a 54-year-old repeat offender with a dated involvement with the criminal justice system. He resides with his mother and has taken up a role as her caretaker. One of Mr. Saunders’s main concerns throughout the presentencing report process has been the impact that sentencing will have on his mother and his own physical and mental health.
[29] Although Mr. Saunders has a history of addiction to prescription pain medication, this does not appear to be an area of concern at this time. Recreational amphetamine was found in his blood stream after the offence, causing some doubt that Mr. Saunders may have not been forthcoming with information surrounding drug use.
[30] Throughout his childhood years, Mr. Saunders appears to have experienced some trauma due to the absence of his father and historical abuse. He had an early romantic relationship at the age of nineteen, but this ended after five years. He has had no partners since then and has been residing with his mother for some time.
[31] Mr. Saunders has struggled with his mental health over the last ten years of his life. To his credit, he has been actively connected with his psychologist, Dr. Sharron Williams. He has confirmed mental health challenges, including anxiety, depression, PTSD and a sleep disorder. Dr. Williams notes that her client had been involved in a few serious accidents and she had recommended that he give up his driver’s license prior to the offence but Mr. Saunders did not like this suggestion. Dr. Williams voiced concerns about the suitability of a custodial sentence in that Mr. Saunders will be a candidate for abuse from other offenders. She recommends minimum security custody if a custodial sentence is imposed.
[32] Mr. Saunders has confirmed medical challenges which include chronic pain; however, he continues to believe he has more diagnoses than those confirmed by his family physician, Dr. Jennifer Hacking. She advises that Mr. Saunders’s health would not be a barrier to a custodial sentence. While he was employed with a cable company at the time of the offence, he is presently being supported by the Ontario Disability Support Program. He supplemented this income with a private electronic repair business.
[33] Mr. Saunders is described as being emotional throughout the pre-sentence report interview. He expressed remorse; however, he minimized the offence by making comments about the conditions of the road. The PSR raised concerns about this and a lack of remorse. At one point in the interview process, Mr. Saunders identified himself as the “unlucky” one that day, but he quickly acknowledged that his victims were the “unlucky” ones. It is noted that he has not had any recent conflict with the law and appears to be compliant with his release conditions. He also expressed a willingness to follow any conditions that may be imposed by the court. Should he be motivated to address his lack of remorse, the PSR concludes that Mr. Saunders would be suitable for community supervision in whole or in part of the sentence.
[34] Robert Saunders’s criminal record is as follows:
1991-02-10: (1) Fail to Appear – Sec. 145(5) and 2) Possession of Narcotics – Sec. 3(1) for which he received a $100 fine and suspended sentence and 18 months’ probation.
1991-07-09 (1) Driving while Ability Impaired -Sec. 253(a), (2) Fail or Refuse to Provide Breath Sample – Sec. 254(5), (3) Fail to appear -Sec. 145, and (4) Resist Police Officer -Sec. 129(a). He was fined $350 and sentenced to intermittent detention of 15 days on the first two charges, $200 fine and 5 days of intermittent detention on the third charge and a $75 fine and 2 days of intermittent detention on the last charge
1992-01-17 Two counts of Fail to Attend Court- Sec. 145(2) for which he received 7 days of intermittent custody.
1992-09-21 Possession of Credit Card Obtained by crime – Sec. 342(1) for which he was fined $150 and received an intermittent sentence of 15 days.
[35] While his criminal record is dated, Mr. Saunders’s Ontario Ministry of Transportation Record, dating as far back as 1983, tells a very different story. There is a record of 37 driving convictions, including three convictions for careless driving: one as recent as February 19, 2018 barely 4 months before this incident. There are two convictions of following a vehicle too closely and 15 convictions for speeding. The record includes 15 collisions; 5 of which have resulted in non-fatal injuries. While his license to operate a motor vehicle has been suspended at times, it is beyond belief that Mr. Saunders managed to be in possession of a valid driver’s license on May 27, 2018. While he may have been uninsurable, he was undeterred and continued to drive.
[36] His entire driving history bleakly foreshadowed the events of May 27, 2018. What is more troubling is that despite this horrific driving record, his own reported injuries in earlier collisions, and the urgings of his psychologist to surrender his license, Mr. Saunders never saw the need to change his driving habits and never learned to obey the rules of the road.
The Case Law
[37] The Crown relies on the following cases:
Case Name
Key Facts
Sentence imposed
R. v. Marynissen, 2007 ONCA 821
• Appellant convicted of dangerous driving causing death. • “The appellant was charged with and convicted, not of criminal negligence causing bodily injury, but of dangerous driving causing bodily injury, for which the Crown sought a maximum sentence of five years. In our view, the trial Crown's position accords with a fit sentence and by exceeding it the trial judge imposed a sentence of 6 years that was outside an acceptable range.”: at para. 1. • Driving prohibition also reduced from 16 years to 11 years (with an additional concurrent prohibition for fleeing scene).
4 years incarceration for dangerous driving causing death (plus one additional year consecutive for failing to remain at scene) 11-year driving prohibition.
R. v. Aiyathurai, 2015 ONCJ 702, 2015 CarswellOnt 1910
• Offender convicted of criminal negligence causing death. • Mr. Aiyathurai was driving a truck while attempting to flee the police. During this chase, he hit a pedestrian attempting to cross the street, causing fatal injury. • Aiyathurai attempted to flee after hitting the deceased, but damage to the truck during the chase caused him to lose control and crash. He then fled on foot before being apprehended. • The Offender was 31 years old, lived with parents and had a sporadic work history. Serious criminal history which included “a history of driving offences where he attempted to avoid responsibility by either falsely identifying himself to police or taking flight.”: at para. 32. • License has been suspended for number of years, but he had continued to drive. • Aggravating factors include: accident happened in context of a police chase; offender attempted to flee the scene after hitting the victim, both in vehicle and on foot; that he was a prohibited driver for a number of years and had a history of related conduct. • The court noted that the offender had no right to be behind the wheel of a vehicle at all. His history demonstrated no respect for the law or any intention of complying with court orders This was not an isolated incident. but the culmination of a continuing course of conduct.”: at para. 47. • Guilty plea only mitigating factor. • At para 55 the court held: “there will be cases where catastrophic consequences such as multiple deaths can serve to increase the length of a sentence, I am not satisfied that the absence of that necessarily decreases it. The focus in my view ought to be on the conduct of the offender and the degree to which it deliberately endangered the public.”
8 years incarceration for criminal negligence causing death charge (less pre-trial custody) 15-year driving prohibition.
R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284
• Mr. Junkert convicted of impaired driving causing death & dangerous driving causing death. • Junkert was unable to control his vehicle and hit multiple objects before fatally striking the victim who was jogging on the sidewalk. • Sentencing judge did not give any credit for time spent under strict pre-trial bail conditions. ONCA did not take issue with this, found that the sentencing judge correctly considered the circumstances and exercised appropriate discretion. • Appeals dismissed, convictions and sentences affirmed.
Accused appeals sentence and convictions – appeals dismissed. 3-years imprisonment for dangerous driving causing death (served concurrently with 5-year sentence for impaired driving causing death) 10-year driving prohibition
R. v. Philips (2005), 2005 CanLII 1043 (ON CA), 193 O.A.C. 322 (Ont. C.A.)
• After jury trial, Mr. Philips (34 years old) was acquitted of impaired driving causing death, convicted of dangerous driving causing death. • Offender and deceased were at same bar until ~2:00 a.m. Deceased was walking home along side of road with a friend when he was struck by Philips’ truck. • Two prior driving offences, three prior offences for public intoxication. Trial judge found that offender was simply unwilling to come to grips with his culpability for the offences and therefore showed no remorse. • “Although the moral culpability of Michael Phillips was high, the Court took into consideration the following mitigating factors: (a) He was 34 years of age and with good support from his family, there was potential for reformation; (b) He had a viable business with four full time employees; (c) He possessed teaching skills; (d) He actively participated in charitable events and causes within the community; and (e) He suffered from Rheumatoid Arthritis and some depression.”: R. v. Phillips, 2003 CarswellOnt 4439 (Ont. S.C.), at para 32. • The trial judge imposed sentence of 30 months incarceration plus 6 consecutive for failing to stop • Crown appeal argued that sentence should have been 5 years. ONCA, citing deference to sentencing judge, concludes that “the sentence imposed was not so low as to be demonstrably unfit.”
Crown appealing sentence – dismissed. 30 months incarceration (plus 6 consecutive for failing to stop). 5-year driving prohibition
R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291
• Offender convicted of criminal negligence causing death, criminal negligence causing bodily harm, and impaired driving causing bodily harm, impaired driving causing death. The two impaired driving convictions were stayed at sentencing. • Offender driving in winter, swerved into the other lane striking another vehicle. One passenger of that vehicle died, the other was seriously injured. • Two witness who saw the Defendant driving earlier testified to his aggressive passing considering for the weather conditions. • Defendant went to England shorty after the accident, which was found to have been an attempt to escape prosecution. • Two prior driving offences, including an “over 80”. • Global sentence of six years imposed. • ONCA affirmed the sentence but increased pre-trial custody credit.
Accused appeals sentence – sentence duration affirmed, but pre-trial custody credited 2:1 rather than 1:1 4 years incarceration (plus 2 consecutive for crim neg cause death) 15-year driving prohibition.
R. v. Spears, 2010 ONSC 5710, 2010 CarswellOnt 3219
• Mr. Spears convicted of criminal negligence causing death & criminal negligence causing bodily harm. • Many witnesses testified to the “horrendous” driving of Spears for at least an hour before the fatal accident. • At para. 5 the court noted: “The negligent driving of Mr. Spears, that morning, included inappropriate speeding, following dangerously close to other vehicles, passing attempts into on-coming traffic, inappropriate lane changes, forcing a driver into on-coming traffic, passing on the right-hand side, travelling in the on-coming lane of traffic, failing to maintain his position on the roadway, and failing to negotiate a turn in the roadway and crossing over the centre line into on-coming traffic, [causing bodily harm to one victim, and killing the other], who were both on their motorcycles”. • Two prior impaired driving convictions & 22 HTA offences. Driver’s license has been suspended at least four times. • PSR noted that the offender “steadfastly deflected responsibility by maintaining his lack of intent to commit the offences or harm the victims”, and “His driving record suggests a general disregard for legal sanctions, and for the safety of others on the road”. • While awaiting trial, Spears was arrested and convicted of speeding. • Crown sought five-year custodial sentence, lifetime driving prohibition • Defence sought two-year-less-one-day conditional sentence, three years probation, and whatever driving ban duration the court sees fit. • The court concluded at para 33: “Spears' attitude to driving on the roadway is clear: he drives if, when, and how he pleases. Driving ‘while under suspension’, while you are on trial for dangerous driving causing bodily harm and death charge, is indicative, I find, of the lack of sincerity that Mr. Spears has for his actions, and his lack of true remorse.” • The offender was is 47-years-old and had pro-social references, including positive involvement as a youth hockey coach. He was hospitalized for 80 days following the accident after also suffering serious injuries. • At para 47, the court concluded: “Spears is not a young man. He has a significant driving record. He continues to make inappropriate decisions when it comes to driving, even after this offence. His driving, on August 16, 2006, was not a momentary, reckless error in judgment. He was a prolonged and serious danger on the highway that day and put the lives of many at risk.” • The court expressed skepticism regarding Mr. Spears's remorse.
4 years incarceration (on each count, concurrent) 15-year driving prohibition. DNA order.
R. v. Slapkauskas, (unreported)
• Convicted of manslaughter and fleeing from police. • During police chase, the accused collided head-on with another vehicle at a high rate of speed, killing the occupant. • Slapkauskas witnessed by officer going 110+ km/h in an 80 zone while swerving into the other lane. Officer attempted to initiate a traffic stop, and the accused accelerated further. The accused drove dangerously through a school zone while children were present. • The deceased had pulled her vehicle over in an attempt to get out of the way of the chase. The accused turned his vehicle sharply, jutting across a lane to strike the deceased’s car head on. • The trial judge found that “the offender aimed his vehicle at the victim’s car and struck it with maximum force, never having applied his brakes or reduced his speed.” • Offender acknowledged he was driving under influence of drugs, and that he swerved into the other car because “[he] was just too afraid to go on and [he] was looking for a way out”. • Evidence given at the preliminary hearing indicated that the offender had ample time to slow down or take evasive action to avoid colliding with the victim, yet he failed to do so. • Offender has dated criminal record, including impaired driving charges and had served a 26-month penitentiary sentence. • Crown sought global sentence of 15 years, ancillary orders of lifetime driving ban and lifetime weapons prohibition. • Defence sought global sentence of seven years; agrees with ancillary orders. • Early guilty plea to both offences; genuine expression of remorse.
9 years incarceration for manslaughter 5 years consecutive for fleeing from police. Lifetime driving prohibition. Lifetime weapons prohibition.
[38] The defence relies on the following cases:
Case Name
Key Facts
Sentence imposed
R. v. Hodder, 2012 PCNL 1411A00462 2012 CarswellNfld 160
• Mr. Hodder plead guilty to dangerous driving causing bodily harm & dangerous driving causing death. • Hodder was driving well in excess of posted maximum speed (140+ km/h on Trans-Canada Hwy). Passengers in vehicle had been asking him to slow down. • Hodder attempted to pass another vehicle despite being in a non-passing lane. He noticed an oncoming motorcycle at the last moment, swerved to avoid a collision, and lost control of his vehicle. Hodder’s vehicle crashed into a body of water, resulting in one of the passengers drowning and another sustaining serious injury. • Hodder has a prior sexual assault conviction, and this incident happened while on probation for that offence. Additionally, he has three prior speeding tickets. • His cognitive functioning was described as “borderline”. PSR indicated that he appeared to show genuine remorse for his role in this accident. • Sentence imposed included 30 months incarceration, which was 6 months longer than the max period sought by the crown.
30 months incarceration 5-year driving prohibition
R. v. Scholpp, 2018 SKQB 252, 149 W.C.B. (2d) 661
• Accused convicted after trial of two counts of criminal negligence causing bodily harm, one count each of failing to stop at scene and breach of probation. • Mr. Scholpp, in a big pickup truck, was following a smaller truck, mistakenly believing that his girlfriend was the driver of the smaller truck. • Scholpp passed the other truck dangerously and then braked rapidly. The other trucked swerved around and passed to avoid a collision; Scholpp then rammed it multiple times from behind. The smaller truck was pushed off the road into a ditch. • Scholpp fled the scene. Both occupants of the truck were injured, with one sustaining serious and permanent back injury. • Scholpp had lengthy record of provincial driving offences and a significant criminal record. His provincial driving abstract listed 40 offences and multiple licence suspensions. There were multiple convictions for speeding, driving without due care, driving while his licence was suspended, and driving unregistered vehicles. He was on probation at the time of this offence. He had previously received a three-year driving prohibition. • Scholpp denied any involvement in the offences and tended to minimize his actions and deflect responsibility. • Court emphasized specific deterrence as a significant consideration based on Mr. Scholpp's driving and criminal records and risk of re-offending. • Mitigating factors included: The offender had a difficult early childhood, the offender is employed, and the offender has family support. “Further, the fact the offender has demonstrated he wishes to change his ways by completing an anger management course, seeking counselling, changing his peer group and complying with his terms of release is mitigating”: at para. 49. • Aggravating factors included: The offending conduct occurred over a significant distance and at high speeds; the offender deliberately chose to create the risk of harm to the victims; the offender was on probation; the offender had no driver's license; the offender has a significant criminal record over a ten-year period, including driving offences; and the offender has a lengthy record of provincial driving offences and license suspensions. • At para. 50, the court noted: “The offender does not accept responsibility for the current offences. That refusal, together with the PSR, raises the concern that he continues to minimize and deflect responsibility”.
24 months incarceration (on each count of crim neg cause bodily harm, served concurrently) 4 months consecutive for failing to stop at scene 4-year driving prohibition. DNA order 10-year firearms prohibition. Restitution to victims ($700 & $800) Longer carceral sentence than crown requested.
R. v. Singh, 2018 ONSC 4598, 2018 CarswellOnt 12408
• Convicted after trial of dangerous driving causing death. Collision between a tractor-trailer and a tanker on a two-lane, non-divided highway. • Collision happened in February; the roads were icy and there was blowing snow. Minutes before the collision, Mr. Singh was attempting to pass a row of cars “at a rise in the highway”, when another tractor-trailer crested; the two trucks swerved and narrowly missed one another. • Singh attempted another reckless pass of a passenger vehicle. He did not notice the oncoming truck in the other lane until he was in the middle of executing the pass. Singh, already in the left lane to pass, veered left into the ditch to avoid a head-on collision. The other truck hit Singh’s trailer; the driver of the other truck died. • Singh was 31 years old. No criminal record nor driving record. There were many support letters from family and religious community. • While the accused expressed sorrow and regret for the death of the other driver, the trial judge did not find much genuine remorse in the accused. • The court concluded that the primary sentencing goals must be denunciation and general deterrence in cases of dangerous driving where death or bodily harm is caused. • The conviction carried immigration consequences as the offender would be deemed “inadmissible” to Canada. • The court hesitated to find much genuine remorse in the accused, as this matter involved a trial, at which the accused offered exculpatory evidence that was rejected. While concluding that this did not constitute an aggravating factor on sentence, it significantly detracted from the claim of remorse. • The court held that deterrent and denunciatory message must be sent. In rejecting the Crown's proposal of four years incarceration and a seven-year driving prohibition, the court held that this proposal failed to take into account the mitigating factors, including relative youthfulness, lack of criminal or driving record, some indications by him of remorse, and pro-social conduct and presentation in other areas of his life.
3 years incarceration 5-year driving prohibition (minus 18 months credited for bail driving prohibition) 10-year firearms prohibition DNA order.
R. v. Bagri, 2017 BCCA 117, 2017 CarswellBc 647
• Appellant, Mr. Bagri, convicted after trial of four counts dangerous driving causing death. On appeal, Bagri argued that his low moral blameworthiness in the circumstances made the imposed sentence of three years imprisonment excessive. • Bagri was a professional driver. At time of accident he was driving a transport truck pulling unloaded trailers. • He pulled into a “brake stop” at top of a hill and checked his brakes by applying them two or three times while in the driver’s seat but did not get out and inspect them visually. Brake malfunction did not contribute to accident, but trial judge regarded this as evidence of intentional risk taking. • Bagri started driving downhill. He was found to have been doing 80 km/h despite numerous posted advisory speed warnings of 60 km/h. He had also drifted over the centre line of the highway. • Bagri felt he was travelling too fast, so he lifted his foot off the accelerator, activating the engine-retarding “jake” brake, causing the truck to jack-knife across the road and strike the oncoming car. • While Bagri expressed “empathy” for the victims of the accident, he continued to deny his culpability for what he considered to have been an unavoidable accident. While Bagri had no prior criminal record, he had extensive driving record including two infractions since the accident at issue for using a cellphone while driving. • The BCCA held that caselaw established that three years incarceration was within the appropriate range for a first-time offender where dangerous or negligent driving results in death.
Accused appeals sentence – sentence affirmed by BCCA. 3 years incarceration 5-year driving prohibition.
R. v. Christink, 2012 ONCA 141
• Respondent convicted after trial of dangerous driving causing death. He was driving a sports car at twice the legal speed limit and lost control. The two passengers were ejected from the vehicle and died. • Christink had a prior record for driving with a blood alcohol level in excess of the legal limit as well as five prior speeding infractions. • The sentencing judge gave a two-year conditional sentence & five-year driving prohibition. The Ontario Court of Appeal converted remaining 101 days of conditional sentence to carceral sentence and increased driving prohibition to seven years. • The court found that the only real mitigating factor was the respondent's sincere expression of remorse.
Crown sentence appeal -(allowed) ONCA imposes 101 days imprisonment (101 days left on what was previously a 2-year conditional sentence) 7-year driving prohibition.
Analysis and Conclusion
[39] The sentencing principles are found in section 718, 718.1 and 718.2(d) of the Criminal Code:
- 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.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
[40] In attaining these sentencing objectives, a sentencing court is provided with limited tools. It can impose varying lengths and types of incarceration and, at times, impose a period of probation subject to appropriate terms. While a sentence must always target rehabilitation whenever that is appropriate, rehabilitation is ultimately the work of others, whether this might be in-custody programs, the guidance of probation or parole officers and the support provided by family members and the community. Rehabilitation is ultimately the responsibility of the offender and can only begin once an offender experiences genuine remorse over their actions and gains insight into the gravity of their conduct and the impact of their actions on the victims.
[41] I am satisfied that Mr. Saunders regrets his actions, but both his PSR reports fail to disclose any true remorse. He appears to be more concerned about the consequences to himself and his ability to care for his mother. There is no insight on his part. He is self-absorbed, imagining that he has more illnesses than identified by his own doctor. While the absence of guilty plea is not an aggravating factor, Mr. Saunders continued to excuse his conduct and advance a false narrative at trial that sought to excuse his actions on that day. His version of the events was contradicted by the record before me and was undone by his admissions on cross-examination.
[42] The range of sentence for the offence of dangerous driving causing death or bodily harm is very broad. I agree with the Crown that the primary sentencing goals must be denunciation and deterrence.
[43] This was not case of momentary bad judgment when Mr. Saunders drove onto the shoulder of the road. The aggravating factors include:
Mr. Saunders had been endangering the lives of others long before the fatal accident;
He was tailgating, causing Courtney Boomhower to fear for the safety of her infant son seated in the back seat of her vehicle;
He was speeding;
He was oblivious to his surroundings;
He drove within inches of cyclists Peter Cashion, Eric Kunstadt and Alex Bourgoyne, endangering their lives;
He was operating a motor vehicle he had been prohibited from driving;
He nearly stuck Fred Roberts who flattened himself against the guardrail as he sped on to the shoulder of the road, ultimately striking Jeff Vervaeke and Erin Townley with tragic consequences;
His decades-long driving record reveals a complete disregard for the rules of the road.
[44] He should have had his license revoked years ago. Section 320.22 of the Criminal Code provides bodily harm to, or the death of, more than one person as an aggravating circumstance. In addition, he was precluded from operating his mother’s motor vehicle.
[45] The only mitigating factors are the support Mr. Saunders provides to his mother and his compliance with his conditions of bail.
[46] Contrary to the care-free fantasies promoted in motor vehicle advertising, a motor vehicle can become a lethal weapon in the hands of a driver like Robert Saunders. He should never be allowed to drive again. While a lifetime suspension of his license may remove him as a danger to society, it is insufficient to denounce and deter his conduct that day.
[47] Cyclists are entitled to use the roadway. Drivers must adapt to their increased presence on our roads and learn to “Share the Road”.
[48] Sentencing is ultimately an individualized exercise. Where an element of accident is involved in the commission of an offence, a sentencing judge must consider the degree of blameworthiness of the offender.
[49] In Spears, 2010 ONSC 5710, at para. 51, Justice MacLeod-Beliveau said this when referring to a similar offence:
51 As stated in R. v. Linden, 2000 CanLII 15854 (ON CA), [2000] O.J. 2789 (Ont.C.A.), there is no set range of sentence for the offence of criminal negligence causing death. At paragraphs (2) and (3), Rosenberg, JA. states:
The offence can be committed in so many ways that it defies the range-setting exercise. At best, the cases provide only a series of examples that are driven by the most infinite variety of circumstances in which this offence can be committed.
The particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more the conduct tends towards demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely a lengthy prison term will be required.
[50] Mr. Saunders engaged in a prolonged and reckless disregard of the safety of others on May 27, 2019. His actions led to the death of Jeff Vervaeke, and Erin Townley remains physically and emotionally scarred for life. Mr. Saunders’ degree of blameworthiness is high.
[51] Having regard to the relevant facts of this case and the relevant case law, I am satisfied that strong denunciation is required, and I impose a sentence of four years imprisonment on each count, these sentences to be served concurrently.
[52] Pursuant to section 320.24 (4) and (5) of the Criminal Code, Mr. Saunders’s driver’s license is suspended for life. I decline to make any the further ancillary orders sought by the Crown. Section 109 mandates a weapons prohibition in certain circumstances, namely where a weapon is used in the commission of the offence, where the offence involves violence, or where there are drugs involved. I conclude that this case does not fall into those categories. A notable exception is the decision in Singh, 2018 ONSC 4598, at para. 26, where Kurke J. found that a weapons prohibition was required on the facts of that case because he found the transport trailer to be a “weapon”. Mr. Saunders became a danger to society only when he got behind the wheel of a vehicle. The lifetime suspension of his license should address that concern.
Justice Robert Beaudoin
Released: September 27, 2021
COURT FILE NO.: CR-19-021
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ROBERT SAUNDERS
Defendant
REASONS FOR sentence
Beaudoin J.
Released: September 27, 2021