COURT FILE NO.: CR-21-10000004-0000
DATE: 20220531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL REID
Marnie Goldenberg, for the Crown
Peter Ngan, for Mr. Reid
HEARD: May 17, 2022
R.F. GOLDSTEIN J.
Background
[1] Mr. Reid is a professional truck driver. On May 29, 2019 in the early morning hours he was driving on Highway 401 in Toronto. He was in the eastbound express lane. He was driving a Mack tractor trailer towing a silver tanker. The roads were wet, but the weather was clear and visibility was good. Van-Hien Lieu pulled his car over onto the shoulder of the express lanes. He then left his car and ran across the highway. Mr. Reid’s tractor trailer struck Mr. Lieu. Other drivers stopped to help Mr. Lieu. Some performed first aid. Some called 911. Paramedics arrived on scene at about 1:10 am. Unfortunately, they could not save Mr. Lieu and he died at 1:35 am of multiple blunt force injuries.
[2] A dashcam in Mr. Reid’s truck shows Mr. Lieu suddenly appearing in front of the tractor trailer, and then being struck.
[3] After Mr. Reid struck Mr. Lieu, he slowed down, activated his four-way flashers, and moved to the right shoulder. He did not come to a complete stop. He continued eastbound and expressed some confusion about what to do. He continued on his route. At 3:46 am he stopped at the Husky Travel Centre in Kingston. At 5:59 am he stopped at his destination, the Shell station in Brockville. At 7:47 am he started back in the opposite direction and drove to the WestPier Buk Warehouse in Port Colborne. He arrived there at about 1:35 pm.
[4] After the accident, the police reviewed Ministry of Transport video footage. Constable Powell identified a logo associated with Mr. Reid’s tractor trailer. He then proceeded to WestPier and identified Mr. Reid as the driver. When Mr. Reid pulled in at 1:35 pm, Constable Powell arrested him. At 2:10 pm another police officer, Constable Brazier, advised Mr. Reid that he would be seizing the power unit in the tractor trailer. Mr. Reid asked if he could remove his personal belongings. Constable Brazier asked if the dashcam memory card was still in the unit. Mr. Reid told him that the memory card was not working so he removed it. Constable Brazier asked him where the card was. Mr. Reid then produced it. Constable Brazier then asked if there were any other memory cards. Eventually Mr. Reid advised that there was one more card.
[5] Mr. Reid pleaded guilty to one count of failing to remain at the scene after causing death contrary to s. 320.16(1) and (3) of the Criminal Code. That section reads:
320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.
(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.
[6] Mr. Reid’s position is that he did not know he had hit a human being. He knew he hit something. He was unsure if it was an obstruction or debris on the highway. He does, however, accept that he was reckless as to whether he was involved in an accident with a person. He acknowledges that he was required by law to stop, render assistance, and give his name and address.
[7] Mr. Reid, of course, was not responsible for the accident. He has not been charged and there is no suggestion that he was at fault.
[8] The maximum penalty for a first offence under this section is life imprisonment and a minimum $1000 fine: Criminal Code, s. 321.21.
[9] I do not know anything of the victim’s background. The victim’s family declined to provide a victim-impact statement. I can only imagine that pain and trauma that they must feel.
Mr. Reid’s Background
[10] Probation and Parole completed a pre-sentence report for Mr. Reid. I have reviewed it. I have also reviewed the letters in support of Mr. Reid. He is in a long-term marriage with Tammy Reid. They are a military family. Ms. Reid wrote a long letter to the court describing their life together. Ms. Reid was a member of the Canadian Forces from 1989 until 2014. She was a Regular Force member from 1989 until 2009, and then a full-time reservist from 2009 until 2014, when she was medically discharged. During Ms. Reid’s Regular Force time she was posted to different military bases across the country. As she pointed out, the life of a military spouse is not an easy one. Mr. Reid cared for the children and also held many other civilian jobs associated with the military, such as working as a civilian driver with a military driver’s licence. He received his licence as a commercial truck driver in 2005 and has worked as a commercial driver ever since. He was steadily employed by DBR Transport from 2008 onwards. I have carefully read the letters written by Mr. Reid’s two sons, his mother-in-law, and several members of DBR Transport. Those letters paint a picture of a dedicated family man and a trustworthy employee. Mr. Rothwell, the president of DBR Transport, indicated that he would continue to employ Mr. Reid if possible.
Mitigating And Aggravating Factors
[11] There are several aggravating factors in this case. Parliament has set out statutory aggravating factors: Criminal Code, s. 320.22. Two of those factors apply here: Mr. Reid was operating the truck for pay; and he was operating a very large motor vehicle.
[12] As I have pointed out, Mr. Reid is a professional driver. He has driven many different types of vehicles for pay. Frankly, he, of all people, ought to have known better – and he acknowledges as much. It is also aggravating that Mr. Reid appears to have tried to prevent the police from obtaining the memory card in his dashcam, although it was a very weak attempt. Ironically, the dashcam video simply confirms that he was not at fault for the accident itself, at least on my viewing of it.
[13] The most important mitigating factor is that Mr. Reid pleaded guilty and apologized for his actions. From my review of the pre-sentence report, Mr. Reid’s written and verbal apology, and the letters of support I have read, I believe that he is genuinely remorseful. He is clearly struggling with the fact that he made a poor decision, especially when he should have known better.
[14] In these circumstances, the plea of guilty also saves considerable resources. Court time is saved, and witnesses will be spared testifying. The criminal justice system recognizes the importance of a guilty plea by stressing it as a mitigating factor.
Positions Of The Parties
[15] Mr. Ngan, for Mr. Reid, suggests that a sentence in the range of 5-8 months is appropriate with no driving prohibition. He points out that Mr. Reid is very remorseful, and that he is also the breadwinner for his family. A one year driving prohibition would be very challenging for him and his family. Ms. Goldenberg, for the Crown, suggests that I should impose a sentence of 12-18 months with a four-year driving prohibition. She argues that as a professional driver, general deterrence should play a very large role in the sentence.
Principles Of Sentencing
[16] The principles of sentencing are well known. In this case general deterrence must play a primary role. Parliament has mandated that this offence carries a life sentence. As well, Parliament has mandated that a first offender be prohibited from driving for a minimum of one year for a first offence: Criminal Code, s. 320.24(2)(a).
[17] In R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 1818, 38 C.R. (3d) 46 (C.A.) the offender had 2 ½ times the legal limit of alcohol in his bloodstream. He struck a person walking along the side of the highway and killed him. The trial judge imposed concurrent six-month sentences for dangerous driving and failing to remain. The Court of Appeal found that the trial judge had erred and directed that the sentences be served consecutively. Martin J.A. stated the following for the court at para. 14:
In our view, the failure of the respondent to stop his automobile, when, as the trial Judge found, he was aware that he had struck someone, was perhaps the more serious of the two offences which the respondent committed. In failing to stop as required, the respondent exhibited a grave failure to comport with the standards of humanity and decency.
[18] At para. 15 of Gummer Martin J.A. adopted the following comment from Zuber J.A. in R. v. Ramdass (1982), 1982 CanLII 3694 (ON CA), 18 M.V.R. 256 (C.A.) at p. 258:
… in a crime of this type the deterrent quality of the sentence must be given paramount consideration and here I am using the term 'deterrent' in its widest sense. The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
[19] Finally, at para. 16 of Gummer Martin J.A. stated:
In our view, the Court has a duty to bring home to persons having the charge of a motor vehicle which has been involved in an accident that the courts of this country will not countenance the failure to remain at the scene and discharge the duties required by the Criminal Code.
[20] Section 320.16 is one of the very few sections in the Criminal Code, or indeed in our law, that creates a positive obligation on a person to do something. A person who has been involved in an accident is required to stop, give their name and address, and offer assistance. There is a moral dimension to this obligation, of course, as pointed out in Gummer and Ramdass. There is also an instrumental dimension: although this accident happened in Canada’s largest city on Canada’s busiest highway, Canada is a very big country with many long stretches of lonely road. An injured motorist may wait a very long time indeed before someone comes along to assist and call for help. Such an injured motorist may well die before that happens. The law requires a person involved in an accident to stop and render assistance because it may well be the difference between life and death. The practical and moral dimensions of this obligation must be reflected in the sentence imposed.
[21] Rehabilitation must of course play a role as well. Mr. Reid is obviously a good candidate for rehabilitation: he will likely find employment again, I am confident that he will resume his pro-social life, and he enjoys he support of a loving family. That said, in cases of this nature, rehabilitation must play a secondary role.
[22] I will review some of the cases setting out the proper range of sentence. I do not need to refer to all of the cases presented to me as I think the range and the principles are clear.
[23] In R. v. Baker, [2004] O.J. No. 6221 (Sup.Ct.) the defendant was in a boating accident near his cottage. The accident resulted in very serious injuries to a passenger in the other boat. She and her husband, the driver, were rescued by other cottagers. Mr. Baker simply continued on his way. He told the jury he thought that he hit a rock or an island. The jury convicted him of failure to remain at the scene and criminal negligence causing bodily harm. They obviously did not believe him. The defence suggested that Mr. Baker should receive a global conditional sentence. Justice MacDougall imposed a 15 month conditional sentence on the criminal negligence count. At the time, the maximum penalty for leaving the scene was five years imprisonment (it is now life imprisonment). On the leaving the scene count, Justice MacDougall essentially found that Mr. Baker acted callously and selfishly. He found that a person who leaves the scene of a boating accident at night, with someone possibly needing assistance, is morally culpable than a person who fails to remain even on a deserted highway. Justice MacDougall ordered that Mr. Baker serve 9 months in custody on the fail to remain count, and that the conditional sentence be served consecutively.
[24] In R. v. Eden, 2021 ONCA 733, the offender hit another vehicle, which then careened into the opposite lane and hit a motorcycle. The motorcyclist was killed, and his passenger seriously injured. Ms. Eden had between 70 and 135 milligrams of alcohol per 100 millilitres of blood in her system. She had been driving 113-114 km/h in an 80 km/h zone. She fled on foot from the accident and was arrested a short time later. The Court of Appeal upheld a sentence of four years on a count of impaired operation causing death; one year concurrent on the impaired operation causing bodily harm; and one year consecutive on the fail to remain.
[25] In R. v. Sankar, 2020 ONCJ 7, the victim apparently fell from the offender’s car. It is unclear how that happened. She died from blunt force trauma after striking the pavement. The offender continued driving. He stopped at a plaza, went back to a location he had left, and inspected the car. He took some steps to conceal his involvement. He was 20 when the accident occurred; the victim was his 16 year-old girlfriend. Justice Monahan summarized the ranges of sentence, based on the cases:
• The lower to middle range of sentence is 5 to 9 months. These sentences will usually not involve a prior criminal driving record may involve a provincial offences driving record;
• The middle of the range is 12 to 15 months. These sentences usually involve a prior criminal record or an impaired driving offence committed as part of the offences;
• The high end of the range involves 18 to 24 months involving exceptional or unusual circumstances, such as high concentrations of alcohol or convictions for criminal negligence causing death.
[26] In R. v. Arruda, [2001] O.J. No. 6288, the victim was crossing the street. Mr. Arruda struck him and fled the scene. He may have been travelling slightly above the speed limit but he did not cause the accident. The victim died of his injuries. He took some steps to conceal his involvement. Mr. Arruda surrendered three days later to the police. He entered a very early guilty plea. He was very remorseful. He was 25 years old with a minor unrelated record. The trial judge sentenced him to nine months in jail, one year of probation, and a two year driving prohibition.
[27] In R. v. Porter, 2017 ONSC 6582, the accused was found guilty by a jury. The victim stepped off a median and was struck by a vehicle. He suffered catastrophic injuries and died immediately. Mr. Porter took the vehicle to a car dealership to have the damage repaired. It also appeared that he struck the car with a bat to make it appear that it had been vandalized. He lied to the service manager of the dealership about what had happened. Justice DiTomasso found that Mr. Porter’s involvement was at the upper end of moral culpability, demonstrating a high degree of callousness and disregard. I agree with Justice DiTomasso’s description of hit and run cases:
There is a continuum in hit and run cases where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. At the other end of the scale are those cases where the accused acted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability.
[28] Justice DiTomasso found that it was a case where the accused had done everything in his power to escape liability through calculation and deception. He sentenced Mr. Porter to two years less a day and a three-year driving prohibition to commence at the end of his custodial sentence.
Sentence Imposed
[29] I agree with the general ranges set out by Justice Monahan in Sankar and Justice DiTomasso in Porter. I find that Mr. Reid’s actions fall somewhere in the middle of the continuum described by Justice DiTomasso. Mr. Reid certainly took some steps to avoid detection, but gave up the attempt. I must balance the key aggravating and mitigating factors here: the expression of remorse and the guilty plea, the fact that Mr. Reid is a professional driver and should have known better, and that he took steps to hide his involvement. I also take into account Mr. Reid’s excellent rehabilitative prospects. I am quite sure he will never find himself involved with the criminal justice system again. He has the support of his family and employer. Up to this point he is led an entirely pro-social life. He is obviously a decent family man who made a very serious and costly error of judgment. When I balance those factors, as well as the other aggravating and mitigating factors, and apply the principles of sentencing, I find that a sentence towards the lowest end of the range would be appropriate but for the attempts at a cover-up. Those attempts must be recognized as part of the sentencing process.
[30] Accordingly, Mr. Reid will be sentenced to 9 months in custody. He will pay the fine of $1000 as imposed by s. 320.21(a). He will be subject to a 17-month driving prohibition pursuant to s. 320.24(5)(a). Leaving aside whether there is a minimum driving prohibition, in my respectful view, a 17-month order will fulfill the principles of general and specific deterrence. My intention is that he prohibited from driving for a year after he is out of custody. The 17-month driving prohibition accounts for his likely parole time. Mr. Reid is a truck driver and needs to work to support his family. I am aware that there will be hardships to them. I am sympathetic. General deterrence, however, outweighs those considerations in this case. In imposing a driving prohibition at the lower end of the range, I am recognizing that Mr. Reid’s driving was not the cause of Mr. Thieu’s death. The driving prohibition serves the purpose of sending a message that this is a very serious offence with serious consequences, even for a person with an exemplary personal history.
Released: May 31, 2022
COURT FILE NO.: CR-21-10000004-0000
DATE: 20220531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL REID
REASONS FOR JUDGMENT ON SENTENCE
R.F. Goldstein J.